HomeMy WebLinkAboutCT 99-08; Concordia Carlsbad LLC; 2000-0573979; Notice of Restriction7640 mc - 2000-0573979
4 d ,- % 1
OCT 24, 2000 3:23 PM
SW DIES0 l2tllMY RECORDER’S UFFICE GREGW J. SIIITH, ~T~RECORER FEES: .
RECORDING REQUESTED BY AND )
WHEN RECORDED MAIL TO:
City Clerk
CITY OF CARLSBAD
1200 Carlsbad Village Drive > Carlsbad, California 92008-l 989 )
Space above this line for Recorder’s use
Parcel No. 167-090-69-00
NOTICE AND WAIVER CONCERNING PROXIMITY
OF THE PLANNED OR EXISTING
EL CAMINO REAL TRANSPORTATION CORRIDOR(S)
CASE NO: CT 99-08 - SPYGLASS II
This Notice Concerning Environmental Impacts is made by CONCORDIA CARLSBAD
19 LLC , a LIMITED LIABILITY COMPANY , hereinafter referred to as the “Owner” is
developer of certain real property situated in the City of Carlsbad, County of San Diego, State of
California. .
RECITALS
A. The purpose of this notice is to disclose to the fullest extent possible present and
future potential impacts of noise generated by all manner of vehicles including public and private
vehicles which will generate noise and other environmental impacts. Purchaser acknowledges
and accepts these existing and future impacts and forever waives any and all causes of action
against the City of Carlsbad, and covenants not to sue the City of Car&bad, its agents, servants or
employees as to any damages or injuries resulting from said impacts.
B. The Owner is the developer and/or holder of the title to certain real property in the
City of Carlsbad, County of San Diego, California, more fully described as:
C. The property is located adjacent to the EL CAMINO REAL
_ Transportation Corridor (hereafter described as corridor) on which transportation vehicles such
as automobiles, trucks, motorcycles and/or vehicles for rail and transit are proposed to travel.
D. The property has been developed in compliance with City and State Noise criteria
which may include mitigation in the form of setbacks, earthen berms, masonry walls and/or
structure upgrades.
E. Owner has no control over the operations of the corridor including the types of
vehicles, trips and traffic, nor the frequency of the trips.
Noise Form #l
cL:pf --k: w&s l’llrcT E, - p-‘lc< ii rq,‘“.r - b-zq -42
Rev. 02/02/99
7641
FORM: NOISE 1: 2 OF 3
F. It is the desire of Owner to give notice to any potential purchaser of the real
property of its proximity to the corridor and the fact that purchases may be subject to the impacts
of said proposed transportation corridor.
NOW, THEREFORE, in light of the above Recitals, owner does, for itself, and its
successors and assigns, give the following notice and makes the following waiver:
1. Owner has and shall develop the property in accordance with a Subdivision
Tract/Parcel Map (CT/PM 99-08) approved by the City of Carlsbad, which approval includes the
requirement of the City of Carlsbad, that the development of the property is consistent with the
Land Use & Noise Element of the General Plan of the City of Carlsbad.
2. That Owner has no responsibility or control over the operation of the corridor,
including without limitation, the types or number of vehicles operating on the corridor.
3. That the vehicle operations on the corridor may create significant impacts
affecting the purchasers, tenants and occupants of the property and that purchasers, tenants and
occupants of the property reside there subject to sight and sound of vehicle operation.
4. The property shall be held, conveyed, hypothecated, encumbered, leased, rented,
used, occupied and improved subject to this Notice. This Notice shall run with the property and
shall be binding upon all parties having or acquiring any right, title or interest in the property.
5. The purpose of this notice is to disclose to the fullest extent possible present and
future potential impacts of noise generated by all manner of vehicles including public and private
vehicles which will generate noise and other environmental impacts. Purchaser acknowledges
and accepts these existing and future impacts and forever waives any and all causes of action
against the City of Carlsbad, and covenants not to sue the City of Carlsbad, its agents, servants or
employees as to any damages or injuries resulting from said impacts.
. . .
..I
. . .
Noise Form #I Rev. 02102199
7642
FORM: NOISE 1: 3 OF 3
Executed this 8th day of Septerrbr ,20 00 .
*OWNER:
(print name here)
Operating Member
(title and organization of signatory)
By:
(sign here)
(print name here)
(title and organization of signatory)
(Proper notarial acknowledgment of execution by Contractor must be attached.)
(Chairman, president or vice-president and secretary, assistant secretary, CFO or assistant
treasurer must sign for corporations. Otherwise, the corporation must attach a resolution
certified by the secretary or assistant secretary under corporate seal empowering the officer(s)
signing to bind the corporation.)
(if signed by an individual partner, the partnership must attach a statement of partnership
authorizing the partner to execute this instrument).
Noise Form #l Rev. 02/02/99
-
7643 -- ,
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
On September 8, 2000 before me, Cathlynn E. Aguhre
Notary Public, personally appeared Michael C. Uqar , [x] personally
known to me - to be the person@ whose
name@) is/ace subscribed to the within instrument and acknowledged to me that heB&Wqr
executed the same in hisk&tkk authorized capacity@& and that by his~signature(#
on the instrument the person@, or the entity upon behalf of which the person@ acted, executed
the instrument.
WITNESS my hand and official seal.
(Signature 8f Notary) ’
- W CATHLYNN E. AGURRE Comm.W11314%4 g NOTARY- cn
Noise Form #I Rev. 02/02/99
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D&22.1999 18:14fXl RET - - iE&SHERRILL NO.834 P.2
OPERATINQ AGREEMENT FOR
. .
X!ONCORDZA COMBUNITIES, LLC, A DE==E LIHITED LIABILITY COMPANY
This Operating Agreement, is made as of 12-22-99 by and among the parties listed on the signature pages hereof, '. with reference to the following facts:
A. On Articles of Organization for CONCCRDIA COMMUNITIES, LLC (the nCompanyV1), a limited liability ' company under the laws of the State of Delaware were filed with the appropriate Delaware governmental office.
B. The parties desire to adopt and approve an operating agreement for the Company. \
NOW, THEREFORE, the parties (hereinafter sometimes collectively referred to as "Members,tV or individually as the. lVMember'V) by this Agreement set forth the operating agreement for the Company under the laws of the State of Delaware upon the terms and subject to the conditions of this Agreement.
- DEFINXTIONS
When used in this Agreement, the following terms shall have the meanings set forth below (all terms used in this Agreement that are not defined in this Article I shall have the meanings set forth elsewhere in this- Agreement):
3.1 "mn shall' mean such act under Delaware iaw 'codifying limited liability companies as the same may be amended from time to time.
.’ 1.2 %greement'~ shall mean this Operating Agreement,
as originally executed and as amended from time to time. . .
1.3 wgArticlesmm shall mean the articles of.organization
' for the Company originally filed with the appropriate official-s in the State of Delaware as amended from time to time.
1 ..a o*Canital ContributionpU shall mean the total value of cash and fair market value of property (including promissory notes or other obligation to contribute cash or property)
OPERATC.AGR [12/22/99]
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contributed and/or services rendered or to be rendered to the Company by Members. I
q-5 Wzodepv shall mean'the Internal Revenue Code of
1986, amended from time to time, the provisions. of succeeding law, and to the extent applicable, the Regulations.
1.6 “COmDany” shall mean CONCORDIA COMMUNITIE&, LLC, a Delaware limited liability company.
.1.7 lTorDorations Code" shall mean the Codes of the State of Delaware codifying limited liability companies, as amended from time to time, and the provisions of succeeding law.'
1.8 t4Dissolution E!vent" shall mean with respect to any Member one or more of the following: the death, insanity, withdrawal, resignation, expulsion, Bankruptcy, dissolution or occurrence of any other event which terminates the continued membership of any Member unless the other Members consent to continue the business of the Company pursuant to Section 8.1. .
*1.9 Vistributable Cash VI shall mean the amount of cash which the Managers deem available for distribution to the
Members, taking into accdunt all Company debts, liabilities, and obligations of the Company then due and amounts which the Managers deem necessary to place into reserve for customary and usual claims with respect to the Company's business.
.
1.10 REconomic Interest" shall mean a Member's or
_ _ Economic fnterest Owner's share of one or more of the Company's Net' Profits, Net Losses, and distributions of the Company's assets pursuant to this Agreement and the Act, but shall not include any other rights of a Member, including, without limitation, the right to vote or participate in the management, ,
or except as provided in the Corporations Code, any right to ' information concerning the business and affairs of Company.
1.11 **kconomic Inte'rest Owner@' shall mean the owner of an Economic Interest who is not a Member. -
1.12 ngFiscal Year" shall mean the Company's fiscal year, which shall be the calendar year.
1.13 w'Forxner MembeW shall have
to its in Section $!jj@# *
1.14 ' Wormer Member's Intere&" ascribed to it in Section 8.1.
the meaning ascribed.
shall have the meaning
1.15 Waioritv InteresF shall mean one or more
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Percentage Interests of Members which taken together exceed:fifty percent (50%) of the aggregate of all percentage Interests. i
L-16 *%anacxerw~ shall mean one or.more managers. Specifically, "ManagerIt shall mean 0. Randolph Hall, Jr., Michael Ugar and Don Underwood, any of them in that capacity. or any other.persons that succeed
T.f7 Wember~* shall mean each Person who (a) is 'an initial signatory to this Agreement, has been admitted to the Company as a Member in accordance with the Articles of this Agreement or is an assignee who has become a Member in accordaxqe with Article VII and (b) has not resigned, withdrawn, been expe'lled or, if other than an individual, dissolved.
3.18 Wember Nonrecourse DeduotioxkV shall mean items of Company loss, deduction, or Code Section 705(a)(2)(B) expenditures which are attributable to Member Nonrecourse Debt.
1.19 "Membership InteresF shall mean a Member's entire interest in the Company including the Member's Economic Interest, the right to vote on or participate in the management, and the right to receive information concerning the business and affairs, of the, Company.
,. .
1.2u "Net Prof itsmv and "Net Losses" shall mean the income, gain, loss, deductions-, and credits of the Company in the aggregate or separately stated, as appropriate, determined in accordance with generally accepted accounting principles employed under the method of accaunting at the close of each fiscal year on the Company's information tax return filed for federal income ax purposes.
1.22 wfPercentaae InteresF shall mean the percentage of.a Member set forth opposite the name of such Member under the column Wember's Percentage Interestt' in E%hibit A hereto, as such percentage may be adjusted from time to time pursuant to the terms of this Agreement. Percentage Interests shall be. determined annually, unless otherwise provided herein, in accordance with the relative proportions of the Capital Accounts ss of the Members,- effective as of the first day of the Company's Fiscal Year but with all distributions under this Agreement to be deemed to have occurred on such day as immediately prior to s determination of the Percentage Interest of a Metier.
. 1.21 g@Person*' shall mean an individual, general partnership, limited partnership, limited liability company, corporation, trust, estate, real estate $nvestment trust association or any other entity- .’
‘?I-
.
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1.23 ~vRecmlationsm* shall, unless the context cl.edrly
indicates otherwise, ,mean the regulations concurrently in force as final or temporary that have.been issued by the U.S. . Department of Treasury pursuant to its authority under the Code.
1.24 Wemainincx MembersP shall haye the meaning ascribed to it in Section 9.1. . .
1-25 '*Tax Matters Partnergl shall b&Michael Ugar or his or her successor as designated pursuant,to Section 9.6. .
. ’ ARTICLE II
ORG?&IZATIONAL MATTERS
2.1 Formation. Pursuant to the Act, the Members have formed a Delaware limited liability company under the laws of the State of Delaware by filing the Articles with the Delaware Secretary of State and entering into this Agreement. The rights and liabilities of the Members &hall be determined pursuant to the Act and this Agreement. To the extent that the rights or obligations of any Member are different by reason of any provision of this Agreement than they would be in the absence of such provision, this Agreement shall, to the extent permitted by the Act, control.
2.2 Name.
COkJNITIES, LLC." The name of tIie Company shall be "CONCORDIA The business of the Company may be conducted ' under that name or, upon compliance with applicable laws, any other name that the Managers deem appropriate or advisable. The Managers shall file any fictitious name certificates and similar filings, and any amendments thereto, that the Managers consider appropriate or advisable.
2.3 Term. The term of this Agreement shall be coterminous with the period of duration of the Company provided in the Articles, unless extended or sooner terminated as, hereinafter provided.
2.4 Office and Adent. The Company shall continuously maintain such offices and registered agents as required by,the Act. The principal office of the Company shall be as the Managers may determine. The company also may have such offices, anywhere within and without the State of Delaware, as the Managers from time to time may determine, or the business of the Company may require. The registered agent shall be as stated in the Articles or as otherwise determined by the Managers.
2.5 Addresses of the Members and the Manacrers. The
I
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respective addresses of the Members and the Managers are set forth on Exhibit A- . ,
,-.
2.6 Purpose af' ComDanv. The purpose of.the Company is to engage in any lawful activity for which a limited liability. company may be organized under the Act. Notwithstanding the * foregoing, without the consent of the Members, the Company shall not engage in any business other than the following:
(a) (i) the purchase of any real or personal property, (ii) the ownership, subdivision, improvement or sale of real or personal property, and (iii) make any . investment, and engage in any joint venture, general partnership, limited partnership, limited liability company or other business activity proposed by the Managers and not prohibited by law or,this Agreement; and
rb) such other activities directly related to the foregoing business as may be necessary, advisable, or appropriate, in the reasonable opinion of the Managers further the foregoing .business,
to .
ARTICLE III
CAPITAL CONTRIBUTIONS ._
3.1 Initial CaBital Contribution. Each Member shall contribute such amount as is set forth on Exhibit A as his initial Capital Contribution, which Exhibit A shall be revised to reflect any additional c'ontributions contributed in accordance . with Section 3.2.
3.2 Additional Capital Contributions. No Member shall
be requiked to make any additional Capital Contributions. To tie ' extent unanimously approved by the Managers and Members who hold . a Majority Interest, from time to time, the Members may be permitted to make additional Capital Contributions if and to the extent they so desire, and if the Managers determine that such
additional Capital,Contributions are necessary or appropriate for the conduct of the Company's business. In that event, the Members shall have the opportunity, but not the obligation, to participate in such additional capital contributions on a pro rata basis in accordance with their Percentage Interests.
3.3 Capital Accounts. The Company' shall establish iiin individual Capital Account for each Member. The Company shall determine and maintain each Capital Account in accordance with Regulations Section 1.704-l(b)(Z)(iv). If a Member transfers all
or part of her or her,Membership Interest in accordance with this
‘5-
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Agreement, such Member’s Capital Account attributab1e.t.o the transferred Membership Interest shall carry over to the new owner of such Membership 'Interest pursuant to Regulations Section 1.704-l(b)(2)(iv)(l).
3.4 Na Interest. No Member shall be entitled to receive any interest on his or her Capital Contributions. .
ARTICLE XV
MEMBERS
4.1 I;fmited Liabilitv. Except as required under the Act or,as expressly set forth in this Agreement, no Member shall be personally liable for any-debt, obligation, or liability of
the Company, whether that liability or obligation arises in contract, tort, or otherwise.
4.2 Admission of Additional Members. The Managdrs, with the approval of the Members, additional Members. may admit to the Company Notwithstanding the foregoing, substitute members may only be admitted in accordance with Article VII.
4.3 Withdrawals or Resicrnations. No Member may withdraw or resign from the Company.
4.4 Transactions With the Conmanv. Subject to any limitations set forth in this Agreement and with the prior approval of the Managers after full disclosure of the Member's involvement, a Member may lend money to and transact other, business with the Company. Subject to other applicable law; such Member has the same rights and obligations with respect thereto as a Person who is not a Member. . .
4.5 .Reltuneration To Members. authorized in', Except as otherwise or pursuant to, this Agreement, no Member is entitled to remuneration for acting in the Company business.
.- 4.6 .Members Are Not Aqents. The management of the" Company is vested in the Managers. No Member, acting solely in the capacity of a Member, is an agent of the Company nor can any
Member in such capacity bind nor execute any instrument= on b&half of the Company.
4.7 Votins Ricrhts. Except as expressly provided in this Agreement.or the Articles, Members shall have no voting, approval or consent rights. Members shall have the right to approve or disapprove matters as specifically stated.in this Agreement, including the foregoing:
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.
A. Unaniinous Ammoval, shall require the unanimous vote, The following matters approval or consent of all: Members who are not the subject to a Dissolution Event or an assignor of a Membership Interest:
(i) A decision to continue the business of the Company after the occurrence of a Dissolution Event.
(ii) Except as provided in Article VII, the transfer of a Membership Interest and admission of the assignee as a Member of the Company.
Agreement. (iii) Any amendment of the Articles or this .
B. Armroval bv Members Holdinu a Maioritv Interest. Except as set forth herein in all other matters in ' which a vote, approval or consent of the Members be is required, a vote, consent or approval of Members holding a Majority Interest (or, in instances in which there are defaulting Members, non-defaulting Members who hold a majority of the Percentage Interests held by all non-defaulting Members) shall be sufficient to authorize or approve such act. . .
4.8 'Meetinffs of Members.
A. Date. Time and Place of Meetinas of Members: Secretary. Meetings of Members may be held at such date, time . and place within or without the State of Delaware as the Managers may fix from time to time, or if there are two or more Managers ' and they'are unable to agree to such.time and place, Members holding a Majority Interest shall determine the time and place. No annual or regular meetings of Members is required. At any Members' meeting, the Managers shall appoint a person to preside , at the meeting and a person to act as secretary of the meeting. The secretary of the meeting shall prepare minutes of the meeting which shall be placed in the minute books of the Company.
B. Power to Call Meetinas. Unless otherwise prescribed by the Act or by the Articles, meetings of'the Membbrs
may be called by any Manager, or upon written demand of Members * holding more than ten percent (10%) of the Percentage Interests for the purpose of addressing any matters on which the Members may vote.
c. Notice of Meetinas. Written notice of a meeting of Members shall be sent or otherwise given to each Member in accordance with Section 4.8D not less than ten (10) nor more than sixty (60) days before the date of the meeting. The notice shall specify the place, date and hour of the meeting and
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instruments and to perform such additional acts as may be necessary or appropriate.to effectuate, carry out and perform all of the terms, provisions, and conditions of this Agreement and the transactions contemplated hereby.
13 -12 Notices. Any notice to be given or to be served upon the Company or any part, hereto in connection with this
Agreement must be in writing (which may include facsimile) and - will be deemed to have been given and received when delivered to the address specified by the part to receive the notice. Such
notices will be given to a Member or Manager at the address specified in Exhibit A hereto. Any party may, at any time by
giving five (5) days' prior written notice to the other parties, designate any other address in substitution of the foregoing
,
address to which such notice will be given.
13.13 Amendments. All amendments to this Agreement
will be in writing and signed by all of the'Members.
13.14 Multiple CounterDarts, This Agreement may be, executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the
same instrument.
13.15 Attoraev Fees. In the event that any dispute
between the Company and the Members or among the Members should result in litigation or arbitration, the prevailing party in each dispute shall be entitled to recover from the other party aLI reasonable fees, costs and expenses of enforcing any right of the ' prevailing party, including without limitation, reasonable ._ attorneys' fees and expenses.
13.16 Remedies Cumulative. The remedies under this
Agreement are cumulative and shall not exclude any other remedies to which any person may be lawfully entitled.
IN WXTNESS WHEREOF, all of the Members of
California limited liability company, have executed Agreement, effective as of the date written above.
LLC, a this
[SIGNATURE CONTINUE ON NEICT PAGE]:
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. .
DON UN'DERWOOD
DON . UN-DERWOOD
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