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HomeMy WebLinkAboutCT 85-15; Greystone Homes; 1997-0174965; Petition & WaiverWL t! iYU== 0 P+f3-APR-B9$7 01:: I ;, RECORDING REQUESTED BY AND City Clerk CITY OF CATUSBAD Carlsbad, CA 92008 WHEN RECORDED MAIL TO: t7FFIC;RL RECORDS 736 1200 Carlsbad Village Drive RF g 24.00 FEES:: 334 DIiGCi CEiikTY RECURDER‘S Of AF : 39, (10 !IF: 1 i. 00 &RE@Fj’ SQITM f [OlfNTf F:ECORi __ Space Above This Line for Recorder’s Use PETITION, WAIVER AND CONSENT TO CREATION OF A COMMUNITY FACILITIES DISTRICT AND AGREEMENT TO PAY FAIR SHARE (AGREEMENT) WHEREAS, the undersigned Property Owner is processing, or has processed development with the City of Carlsbad (hereinafter referred to as “City”) a development pr known and identified as Tentative Tract Map CT 85-15, (hereinafter referred to a? “Project”); and WHEREAS, the legal description for the Project is shown on Exhibit “B” atta hereto; and, WHEREAS, City has determined this Project is located within the boundaries proposed Community Facilities District known as Community Facilities District No Rancho Santa Fe and Olivenhain Road (hereinafter referred to as “District”); and, WHEREAS, District is intended to be formed to finance those improvements genc described in Section 1 herein and in the amount set forth in the Improvements Budget att; hereto marked Exhibit “C”; and, [ 4 8 5 - / 5 I 739 I, 4, 0 9 .. WHEREAS, Property Owner desires to proceed with processing prior to the form2 of District; and, WHEREAS, various conditions of the Tentative Tract Map for the Project requires the Property Owner provide for or participate in the construction of certain pi improvements including sections of Rancho Santa Fe Road; and, WHEREAS, the compliance with tentative map conditions is a condition of appI for the final map for the Project; and, WHEREAS, the City and Property Owner desire to agree to an alternative methc financing the improvements described in Section 1 herein that will allow Property Own discharge its fair share and obligation for said improvements in lieu of, or in anticipatio participation in District; and, WHEREAS, the City Council agrees that Property owner, upon entering into agreement and upon payment of the fair share described herein, has met the requiremer forth in the tentative map conditions requiring the Project to provide a financial guarante the construction of those improvements described in Section 1 below; and, WHEREAS the City and Property Owners have previously entered into si agreement providing for prepayment for said Improvements by which Property Owner has -paid its obligation, and the parties wish to supersede those agreements with this agree providing for a special refund; and, < I LC *, 0 0 740 4. WHEREAS, Property Owner voluntarily enters into this agreement with respect ti Project; and, WHEREAS, the City Council has determined that due to the size of the pro1 development, there will be no major impact on the circulation system at the present til development of the Project is allowed to proceed with sufficient financial guarantees for f construction of Property Owner’s fair share of the circulation improvements; NOW, THEREFORE, in consideration of proceeding with the processing of Prc the undersigned Property Owner and City hereby agree and certify to the following: 1. Property Owner hereby petitions the City for the initiation of the proceec for the formation of District which will cause the construction and installation and/or finar of the following improvements (hereinafter “Improvements”) which are generally describc follows: a) Rancho Santa Fe Road North Phase 1 (RSF No.1) La Costa Aven east of Mahr Reservoir b) Olivenhain Road Widening, and intersection improvements Olivenhain and El Camino Real c) Rancho Santa Fe Road North Phase 2 (RSF No.2) Phase 1 Er Melrose Drive. d) Rancho Santa Fe Road South (RSF So.) (Assumes Secondary Ar Standard - Encinitas City Boundary to Olivenhain Road Full Improvements.) i , .* ‘I e e 741 %. 2. The cost of construction, engineering, environmental mitigation’s legal other incidental expenses as set forth in the “Improvements Budget” will be funded b: District. 3. Property Owner acknowledges its right to notice of and participation j phases of formation under the “Mello-Roos Community Facilities Act of 1982,” - expr waives the proceedings required and all limitations contained in Title 5, Division 2, Ch 2.5 of the California Government Code and nonetheless with full knowledge of such r completely and forever waives such rights. Specifically, Property Owner hereby consei the proceedings and waives any right to protest the formation of the District and the orderii the improvements under applicable California statutes and consents to and supports form of said District with respect to the Project. The City shall exclude the Project fkom the Di boundary map if, prior to the adoption of a Resolution of Intention by the City Council to said District, Property Owner has entered into this agreement and has paid to the cit amounts due as described herein. 4. a) Property Owner agrees to pay to City, or provide, its fair share fo Improvements described in Section 1. b) Said payment, or provision, shall be made in the manner describc Exhibit “A”, Rate and Method for Determining Fair Share Qbligation Rancho Santa Fe Olivenhain road, which is incorporated herein by reference. c) The amount of Property Owner’s fair share will be conclus determined by the City Council in the manner described in Exhibit “A” attached hereto. 4 \ ,. I. 0 0 i ,. d) Payment by Property Owner of its fair share of Improvement cos determined by City Council and set forth herein will satisfjr its obligations for the constru of the Improvements described in Section 1, as required by the Tentative Map for the Projc that condition applies to the Project, subject to adjustment as described in Section 10 hereii e) Alternatively, if the District is formed and Project is included witk Property Owner’s obligations to pay its fair share pursuant to this agreement shall be sati upon payment of all taxes imposed, established and payable to said District. 5. Property Owner acknowledges that this agreement to pay its fair share participate in the financing of improvements is voluntary and that without this agree Property Owner would be precluded from obtaining final map approvals or building and I development permits under the provisions of the General Plan, Chapter 21.90 of the Carl Municipal Code, applicable zone plan, financing plans and related documents permits u the provisions of the General Plan, Chapter 21.90 of the Carlsbad Municipal Code, applic zone plan, financing plans and related documents until a satisfactory financing program been developed to fund the construction of the Improvements described in Section 1. 6. Property owner hereby waives his right to challenge the amount, establish or imposition of said fair share and further waives any rights to pay said fair share u protest. 7. This agreement does not affect, in any way whatsoever, the obligatio] Property Owner to pay any other fees or assessments associated with Property Ow development and/or to post improvement bonds as required by the City Engineer. Nor 0 e 1. * I ,. this agreement relive Property owner fi-om providing other public facilities required I conditions placed upon the Project by the applicable tentative map conditions. 8. Property Owner agrees that payment of its fair share is not a fee and waive and all rights to notice of or challenges to the establishment or imposition of said fair shart fee under provisions of Government Code section 66000 et seq., or any successor or re statutes. 9 a. The City and Property Owner hereby agree that this agreement supersedes prior written agreement between the City and Property Owner concerning Property Ow fair share obligation for the Project covered by this Agreement (a “Prior Agreement”), if an b. The City acknowledges that, prior to December 10, 1996, the undersi Property Owner had paid to the city excess fair share payments totaling $54,720 (18 sii family units times $3,040 per unit) (the “Excess Fair Share Payments”) pursuant tc following Prior Agreement between the City and Property Owner covering the Pro developed by Property Owner in Carlsbad: (1) Petition, Waiver and Consent to Creation of a Community Facil District and Agreement to Pay Fair Share dated March 19, 1996 (covering Tent; Tract Map CT 85-15); c. City hereby agrees to refund to Property Owner, by check, the total amou Excess Fair Share Payments within 30 days of the execution of this agreement. ! I ~. 10) a) If the District is formed subsequent to the payment by Property 0 of the fair share pursuant to this agreement, Property Owner’s financial obligation sha recalculated using the taxing formula established for the District for the Improven described in Paragraph 1. If that obligation is lower than the amount previously pai provided by Property Owner to City, City shall refund any excess, in the manner desc below, , %. .. 0 4 b) Any refund shall be made from funds available within District upon Di formation and shall not be an obligation of city’s General Fund or other revenue sources. c) In the event that insufficient funds are available from District’s resou Property Owner shall be reimbursed in the order in which funds were deposited with Ci soon as sufficient funds become available, as determined by the City Council, througl payment of one-time taxes or annual undeveloped land taxes to the District. The city i: required to establish an undeveloped land tax within the District to provide such refund. d) No reimbursement is required until the City Council determines that suffi funds are available. Any refund to Property Owner shall not include interest. e) Any payment received by the City under this agreement shall be deposited special interest bearing fund and may only be used to fund the construction of the faci described herein. Upon the formation of a CFD to fund these same Improvements, any am remaining in the special fund may be transferred to the CFD bd, at the discretion o Finance Director. 0 rlr *. I I ,. 11. Upon completion of the Improvements, and recording of the notic1 completion for the final phase of the Improvements, the City Engineer shall determine the cost of all phases of the Improvements and all related work (Costs), and the Finance Dir shall determine the total amount of revenue including fees, taxes, interest earned on f restricted to use only on the Improvements, and other sources of funds received by the dedicated to paying for the construction of the Improvements (Revenues). The Fir Director shall then compare the amount of Costs and Revenues to determine if there arc excess Revenues as described below. If excess Revenues of more than $100,000 exisl Finance Director shall provide refunds to all eligible parties of all excess Revenues j amount and in the manner described below. If excess Revenues are equal to, or less $100,000 the City shall retain these funds in a special fund to be used to finance street re maintenance, and landscaping within the Improvements. a) The total amount of excess Revenues shall be determined by deducting amount of the project Costs from the available Revenues. Total project Costs shall incluc costs to plan, design, construct, mitigate environmental impacts, inspect, and other complete the project to the satisfaction of the City Engineer, including applicable charge City staff services. Total Revenues shall include all monies held by the City dedic exclusively to the construction of the Improvements including any fee revenues earmarkec the Project, CFD #2 taxes, applicable CFD #I taxes, grants, and interest earned on restr funds as detennined by the Finance Director. b) The amount of the refund due to any party shall be based on the proportic that party’s payments under this agreement based on its’ proportional share of Equiv Dwelling Units constructed or to be constructed by that party, weighted as described in Ex A, divided by the total number of EDUs constructed or to be constructed within, .I- 0 0 participating in, CFD #2 and/or this agreement. The amount of the refund shall be detem by multiplying the proportional share computed above by the total amount of excess reveni c) In order to share in the refund of any portion of the excess Revenues eligible party must request to be included in the distribution of funds. Such request mu made within 90 days after the City Council’s acceptance of the Notice of Completion fo final phase of the Improvements. Each request must be accompanied by documents indici clear title to the refund unless the request is being made by the party which originally paic City pursuant to this agreement or paid taxes to CFD #2 d) The Finance Director shall compute the amount of the refund due each par described above. Funds may be disbursed to the eligible parties following Council approv such refunds. e) If the City does not receive requests for refund from all eligible parties w the specified period, and all funds cannot be disbursed as provided by this section, remaining funds shall be held in a special fund to be used to support road and road maintenance in and around the Improvements area, as determined to be necessary by the Engineer, and approved by the City Council. f) As a courtesy to all interested parties, the City will maintain a file of tl individuals or companies entitled to a refund, and will mail notices of refund availability tc names and addresses in this file following the City Council’s acceptance of the final Notic Completion. It is the eligible party’s responsibility to notifl the City if the rights to refunds under this section are assigned to another p arty, or if there is a change in nm address for the eligible party. The City takes no responsibility for the accuracy of , ~ ., I. 0 0 I. information included in this file, and is under no obligation to locate persons or entities are entitled to refunds. Failure to notify any party of the availability of excess Revenues not obligate the City in any way to extend or modify the above refund procedures. 12. Compliance with this agreement will be accepted by City as an alternate tc method described in the current Local Facilities Management Plans for local faci Management Zones 6, 11 and 12 for financing the Improvements described in Paragrai This agreement does not require City to issue building permits or other development perm. grant approvals or relieve Property Owner of the obligation to comply with all applic provisions of law, including but not limited to CarPsbad Municipal Code Titles 18, 19, 2( 21. 13. Compliance with the provisions of this agreement is a condition of all f discretionary approval for the Improvements. If Property Owner does not comply wit1 provisions of this agreement, approval of the Project will not be consistent with the Ge Plan, the Growth Management Program, and the Local Facilities Management Plan, an subsequent discretionary approvals and permits for the Project may be withheld by City. 14. In addition, the City will not approve any pending final maps, issue gra building or other development permits or take any discretionary action until the Pro Owner has complied with the terms of this agreement due to be satisfied at the time approval is required. 15. The City may, at its discretion, elect to pursue any remedy, legal or equi against Property Owner and Property Owner’s successors, heirs, assigns, and transferees c Project to secure compliance with this agreement. j .\ <. a 0 16. City shall not, nor shall any officer or employee of City, be liable or respon for any loss or damage incurred by Property Owner or any successor or assign of Pro] Owner, or by any occupant in Property Owners buildings, as a result of the exercise oj remedies provided to City in ths agreement. Property Owner agrees to indemnify City foi liabilities incurred by City as a result of City’s exercise of these remedies. 17. This agreement and the covenants contained herein shall be binding upon inure to the benefit of the successors, heirs, assigns, and transferees of Property owner respect to the Project only and City, and shall run with the Project and create an equi servitude upon the Project. 18. All notices provided for under this agreement shall be in writing and sha delivered in person or served by certified mail postage prepaid. Delivery of notice to Pror shall be presumed to have been made on the date of mailing regardless of receipt by ProF Owner. Notices required to be given to Property Owner shall be addressed as follows: Notices to the City shall be delivered to the Finance Director City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 Notices to Property Owner shall be delivered to: Todd Palmaer, Greystone Homes 495 E. Rincon Su 115 Corona, CA 91719 0 0 Each party shall notify the other immediately of any change that would require notice delivered hereunder to be directed to another party. 19. This agreement shall be recorded but shall not create a lien or security inten the property. 20. The undersigned Property Owner further states, under penalty of perjury, th is owner of the property as described herein on Exhibit "B", or an authorized agent o owner, and has the authority to execute this document, including the binding authoriz, herein. Executed this 1 4 th day of FEBRUARY ,1997. "OWNER: GREYSTONE HOMES BY r ATTEST, (print name here) - BW. PRC'S. (title signatory) Ronald R. Ball 3, L( 9 ;2- - City Attorney (Proper notarial acknowledgment of execution by *OWNER must be attached.) Preside] vice-president and secretary or assistant secretary must sign for corporations. If only officer signs, the corporation must attach a resolution certified by the secretary or assi secretary under corporate seal empowering that officer to bind the corporation. c .t 0 0 1 STATE OF CALXFOWA COUNTY OF RIVERSIDE On February 14, 1997, before me, Linda Kaniasty, Notary Public for County of San Diego, personally appeared TODD PALMAER , personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity and that by his signature on the instrument, the person or entity upon behalf of which the person acted, executed the within instnunent. WITNESS my hand and official seal. . \ &&m% Linda Kaniasty, Notary CAPACITY CLAIMED BY SIGNER: SIGNER ]IS REPRESENTING Individual - XX- CorporateOf€icer President Partners Greystone Homes, Inc., A Delaware Corporation - Assistant Secretary Corporation as a Partner Other THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRTBED BELOW. TITLE OR TYPE OF DOCUMENT: -Petition, Waiver, and Consent to Creation of CFD#2 and Agreement to Pay NUMBER OF PAGES 15 + attachments NUMBER OF SIGNERS 4 0 0 751 -/ ' . '*b .. CERTIFICATE OF SECRETARY OF GREYSTONE HOMSS, INC. I, 3obert W. GsrciE, Secretary of Gr-eystcse Homes, Inc. here1 certify that Fiesoiuticr, duly eclcpted by the Scard cf Cirectorcs of Greystcr ficnes, Inc. cn June 12, 1395 and thzt saia .. Rescl~tion is In fu: force and. effect and has net Seen rescinded cr moeified: the following is a true and correct CCDV of r. RESCLVED, that Todd Palmaer Is hereby elected President cf ti Inland Empire Pivisior! of this Ccrporaticn. . -. .> .* : /' I' Dated: hne i2, 1995 >\ .'/y c,Q .' .' '\ , 1.d L4.4 2 f. ~4.,,yg&h- Greystone -. domes , Izc. Robert X. Gsrc&'c, Secretary cf (Corporate Seal) r . '*b 0 0 1 ,. CERTIFICATE OF SECRETARY OF GREYSTONE HOMES, INC. I; Robert W. Garcin, Secretary cf Greystone Homes, Inc. hereb; certify that the following is a true and correct CCFY of : i?esoiution duly adopted by the Soarci of Directors of Greystont Homes, Inc. e2 June 12, 1,095 and that Mu kseluticn is in hi. .. force and effect and has nct been ~esci~ded or modified: RESOLVED, that Todd Palmaer, President/Inland Empire' Division, zctins alcne be and is hereby authorized crr behalf cf this Corporation to enter into contracts for services, purchase materials and supFlies, execute applications, government and quasi-government permits and ~icenses, ?* obtain %A and VA aPprcvals, enter into written contracts with City and Ccunty agencies (includin~ schcci districts) preliminary to CY concurrent with the purchase by sale acreement cr opticn, which contracts sre a part of said subdivision process, execate documents CY instruments burdening this Ccrporation's real property as a part 05 the subdivision process, inciuding but nct limited to Subdivisicn Zmprovement Agreements, easenents, rights-of -"a): , licenses, ccvenants, ccndit ions and re se rva t ions ( "CC6cR's" ) , annexatlol?, agreements , applications fcr 3epartmer.t cf fieal Estate public reports, title ccnpmy indemnification agreements relating to Corporation real property, pCblic and quasi- public utility service applications a~d contracts, tenporzry entry agreements, ccntracts for the sale or rental cf this Corpcraticn' s residential 1-ea1 nrcperty wit aiithority includes the ~uth~i-itj; to Execute escrcw i?stYuctic?c, -2~ar.t Deeds ar?d ether instruments cf conveyance, and ail other ccntracts inirciving this Corporaticn's ordinzry course of business EXCE?T he shall have no authority to bcrrow money, purchase real property, sell real prcperty other than as hereinabcve permitted cr execute silrety bonds on behalf of this Corporaticn. subdivision oi real property cwzed, cr uilder cor?tract to when scch real property is improved with E hoilslnc t: and is a 2ayt of 2 r-siiential subdivision which - 1a~t-r v 0 0 -. -. . \ ** .- RESOLVED F-UXTHER, that the authority herein conferred Board of Directors of this Corporation. shall remain in force until revocation thereof by the -7 /,/ -7 / Dated: June 12, 1995 [;. -. L57 s4.f,,t-.- ..,A,:- Ld- 5 (& Robert W. Garcin, Secretary of Greystone Homes, Inc. (Corporate Seal) < k b m e EXHIBIT A RATE AND METHOD FOR DETERMINING FAIR SHARE OBLIGATION RANCHO SANTA FE AND OLIVENHAIN ROAD The City Council shall use the following rate and method for determining the fair obligation for funding the construction of Rancho Santa Fe and Olivenhain Road due property conditioned to participate in the financing of these facilities. This calculation is as part of an agreement titled PETITION, WAIVER AND CONSENT TO CREATION ( COMMUNITY FACILITIES DISTRICT AND AGREEMENT TO PAY FAIR SH (Agreement) which has been voluntarily entered into by the City of Carlsbad and cl property owners wishing to proceed with development of their property in advance c creation of Community Facilities District No. 2 (CFD No. 2). It is the City and prc owners intent to form CFD No. 2 to provide funding for those improvements described c the above-referenced agreement. The following rate and method shall be used to determine the fair share and amount due any property owner wishing to take advantage of this alternate funding mechanism. Basis for Cost Allocation The basis for allocation of costs to property conditioned with the financing o improvements described in the Agreement shall be the Equivalent Dwelling Unit (EDU) > is defined as follows for residential developments: Residential EDU Allocation Single Family - Detached Units 1.0 EDU Single Family - Attached Units 0.8 EDU Multi-Family Units 0.6 EDU Second Dwelling Units 0.0 EDU The number of each type of unit included in a development shall be determined by thl Engineer based on the most recent final map submitted to the City for approval. 'i e 0 The EDU determination for non-residential development shall be made by the City En@ when such a determination is requested by the property owner. The City Engineer may re additional information from any property owner as may be necessary to makt determination. The City Engineer is not required to make a determination on the numk EDUs for any project until adequate information is available. The City Engineer's determination shall be submitted to the City Council in the table b The City Council shall make the final determination of the number of EDUs to be us computing the fair share obligation for any project. Fair Share Amount and Method of Pavment The City shall collect $10,250 for each EDU as determined by the City Council. This ar shall be collected in one payment of $10,250. If the City Council determines the Engineer's calculation of the number of EDUs included on the final map is in error, the Cc shall direct the City Engineer to amend his calculations and direct staff to bring the fina back for approval when such correction has taken place. Funds must be paid to the City 1 the final map will be scheduled for Council consideration, Amount Paid Under Type of EDU * Total Number Cost Per Total Prior Agreements Project Unit Per Unit of Units Unit Due Units I Amount CT85-15 Single Family - 1 .o 131 10,250 1,342,750 131 1,342,750 - - Total 131 1,342,750 131 1,342,750. Remaining Balai Units I Amou Due 0 0 6 0 (I) 7; *I EXHIBIT 'B' ORDERNO. 1135592 LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFOR COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: PARCELS 1 THROUGH 156 INCLUSIVE OF PARCEL MAP NO. 17744, IN THE CIT CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDIN( MAP THEREOF ON FILE IN THE OFFICE OF THE COUNTY RECORDER OF DIEGO COUNTY, SEPTEMBER 5, 1996 AS FILE NO. 1996-0450805, OFFIl RECORDS. EXCEPTING THEREFROM ALL WATER, WATER RIGHTS, OIL, OIL RIG MINERALS, MINERAL RIGHTS, NATURAL GAS, NATURAL GAS RIGHTS, OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHER STEAM, AND ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, 7 MAY BE WITHIN OR UNDER THE PARCEL OF LAND DESCRIBED IN THIS EXH TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING, EXPLOI AND OPERATING THEREFOR AND STORING IN AND REMOVING THE SAME F SAID LAND OR ANY OTHER LAND, INCLUDING THE RIGHT TO WHIPSTOCI DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN TI HEREINABOVE DESCRIBED, WATER, OIL OR GAS WELLS, TUNNELS AND SHi INTO, THROUGH, OR ACROSS THE SUBSURFACE OF THE LAND HEREINAE DESCNBED, AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTION1 DRILLED WELLS, TUNNELS, AND SHAFTS UNDER AND BENEATH OR BEY THE EXTERIOR LIMITS THEREOF, ANI9 TO REDRILL, RETUNNEL, E( MAINTAIN, REPAIR, DEEPEN, AND OPERATE ANY SUCH WELLS OR MI WITHOUT, HOWEVER, THE RIGHT TO ENTER UPON, DRILL, MINE, ST EXPLORE, AND OPERATE ON OR THROUGH THE SURFACE OF THE UPPER HUNDRED (500) FEET OF THE SUBSURFACE OF THE LAND HEREINAE DESCRIBED. . 25;AUg-93 C. F. wo. 2 - PRELIMINARY COST ESTIM~ SUMMARY I b 758 ., CITY OF CARLSBAD COMMUNIN FAClLITIES DISTRICT NO. 2 STAG€ COST SUMMARY STAGE 1 : OLIVENHAIN ROAD AREA A, (@ EL CAMINO REAL) $2,503,000 $91 2,000 DETENTION BASIN 'D' $871,000 AREA 6, (@ RANCHO SANTA FE RD.) --------- --------- TOTAL STAGE 1 $4,286,00 STAGES 2: RANCHO SANTA FE ROAD, PHASE I $1 5,032,OO STAGES 3: RANCHO SANTA FE ROAD, PHASE II $1 4,230,OO STAGE 4: RANCHO SANTA FE ROAD SOUTH $3,109,00 -------- -------- CFD NO. 2 TOTAL $36,657,00 FILE: SUMMARY.WQ1 PREPARED BY: HELMING ENGINI