HomeMy WebLinkAboutCT 98-02; LB/L Concordia Carlsbad 28 LLC; 2000-0201033; Petition & Waiver*a ‘. . I . . *
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City Clerk
CITY OF CARLSBAD
1200 Carlsbad Village Drive
Carlsbad, CA 92008
DOE 2 2000-0201033
‘4 ClPR 19, 2000 8:35 AM
OFFICIAL REalRDS 198 5 !#I DIEGO MlJNpl RECMEft ‘S OFFICE
GREG0RY iiEF’ Yi-iIaaRDER . * .
Space Above This Line for Recorder’s Use
Assessor Parcel No. 255-040-55
PETITION, WAIVER AND CONSENT TO CREATION
OF A COMMUNITY FACILITIES DISTRICT
AND AGREEMENT TO PAY FAIR SHARE COST
OF CT 98-02 (“AGREEMENT”)
COLINA ROBLE
WHEREAS, the undersigned Property Owner at this time is processing for
development with the City of Carlsbad (hereinafter referred to as “City”) a
development project known and identified as Carlsbad Tract Map 98-02 (hereinafter
referred to as the “Project”); and,
WHEREAS, the legal description for the Project is shown on Exhibit “B”
attached hereto; and,
WHEREAS, City has determined this Project is located within the boundaries of
a proposed Community Facilities District known as Community Facilities District No. 2
- Ranch0 Santa Fe and Olivenhain Road (hereinafter referred to as “District”); and,
1
1986
EXHIBIT 1
/
WHEREAS, District is intended to be formed to finance those improvements
generally described in Section 1 herein; and, /
WHEREAS, Property Owner desires to proceed with processing prior to the
formation of District; and,
WHEREAS, condition number 37 of Tentative Tract Map CT 98-02 requires
that the Property Owner provide for or participate in the construction of certain public
improvements including sections of Ranch0 Santa Fe Road; and,
WHEREAS, the compliance with tentative map conditions is a condition of the
Project; and,
WHEREAS, the City and Property Owner desire to agree to an alternative
method of financing the improvements described in Section 1 herein that will allow
Property Owner to discharge its fair share and obligation for said improvements in lieu
of, or in anticipation of, participation in District; and,
WHEREAS, the City Council agrees that Property Owner, upon entering into
this agreement and upon payment of the fair share described herein, has met the
requirement set forth in tentative map condition number 37 for Carlsbad Tract Map
98-02 to provide a financial guarantee for the construction of those improvements _
described in Section 1 below; and,
WHEREAS, Property Owner voluntarily enters into this agreement with respect
to the Project; and,
2
1987
WHEREAS, the City Council has determined that due to the size of the
proposed development, there will be no major impact on the circulation system at the
present time if development of the Project is allowed to proceed with sufficient
financial guarantees for future construction of Property Owner’s fair share of the
circulation improvements; /
NOW, THEREFORE, in consideration of proceeding with the processing of
Project, the undersigned Property Owner and City hereby agree and certify to the
following:
1. Property Owner hereby petitions the City for the initiation of the
proceedings for the formation of District which will cause the construction and
installation and/or financing of the following improvements (hereinafter referred to as
“Improvements”) which are generally described as follows:
a) Ranch0 Santa Fe Road North Phase 1 (RSF No. I) La Costa Avenue
to east of Mahr Reservoir
b) Olivenhain Road Widenino, and intersection improvements at
Olivenhain and El Camino Real
cl Ranch0 Santa Fe Road North Phase 2 (RSF No. 21 Phase 1 End to
Melrose Drive.
d) Ranch0 Santa Fe Road South (RSF So.) (Assumes Secondarv
(
2. The cost of construction, engineering, environmental mitigation’s, legal *
and other incidental expenses as set forth in the Improvements budget will be funded
by the District.
3. Property Owner acknowledges its right to notice of and participation in
3
1988 .
all phases .of formation under the “Mello-Roos Community Facilities Act of 1982,”
expressly waives the proceedings required and all limitations contained in Title 5,
Division 2, Chapter 2.5 of the California Government Code and nonetheless with full
knowledge of such rights, completely and forever waives such rights. Specifically,
Property Owner hereby consents to the proceedings and waives any right to protest
the formation of the District and the ordering of the improvements under applicable
California statutes and consents to and supports formation of said District with
respect to the Project. The City shall exclude the Project from the District boundary
map if, prior to the adoption of a Resolution of Intention by the City Council to form
said District, Property Owner has entered into this agreement and has paid to the City
all amounts due as described herein.
4. a) Property Owner agrees to pay to City, or provide, its fair share for
the Improvements described in Section 1.
b) Said payment, or provision, shall be made in the manner described
in Exhibit “A”, Rate and Method for Determining Fair Share Obligation Ranch0 Santa
Fe and Olivenhain Road, which is incorporated herein by reference.
cl The amount of Property Owner’s fair share will be conclusively
determined by the City Council in the manner described in Exhibit “A” attached
hereto.
d) Payment by Property Owner of its fair share of improvement costs
as determined by City Council and set forth herein will satisfy its obligations for the
construction of the improvements described in Section 1, as required by the Tentative J
Map condition number 37 as that condition applies to Carlsbad Tract No. 98-02
subject to adjustment as described in Section 9 herein.
4
1989
e) Alternatively, if the District is formed and Project is included within
it, Property Owner’s obligations to pay its fair share pursuant to thisagreement shall
be satisfied upon payment of all taxes imposed, established and payable to said
District. /
5. Property Owner acknowledges that this agreement to pay its fair share
and participate in the financing of improvements is voluntary and that without this
agreement Property Owner would be precluded from obtaining final map approvals or
building and other development permits under the provisions of the General Plan,
Chapter 21.90 of the Carlsbad Municipal Code, applicable zone plan, financing plans
and related documents until a satisfactory financing program has been developed to
fund the construction of the Improvements described in Section 1.
6. Property Owner hereby waives his right to challenge the amount,
establishment or imposition of said fair share and further waives any rights to pay said
fair share under protest.
7. This agreement does not affect, in any way whatsoever, the obligation of
Property Owner to pay any other fees or assessments associated with Property
Owner’s development and/or to post improvement bonds as required by the City
Engineer. Nor does this agreement relieve Property owner from providing other public
facilities required under conditions placed upon Tentative Map CT 98-02 by the City.
8. Property Owner agrees that payment of its fair share is not a fee and _
waives any and all rights to notice of, or challenges to, the establishment or
imposition of said fair share as a fee under provisions of Government Code section
66000 et sea.. or any successor or related statutes.
5
/” . 1990 -
* 9. , a) If the District is formed subsequent to the payment by Property
Owner of the fair share pursuant to this agreement, Property Owner’s financial
obligation shall be recalculated using the taxing formula established for the District for
the improvements described in Paragraph 1. If that obligation is, lower than the
amount previously paid or provided by Property Owner to City, City shall refund any
excess, in the manner described below. /
b) Any refund shall be made from funds available within District upon
District formation and shall not be an obligation of City’s General Fund or other
revenue sources.
cl In the event that sufficient funds are not available from District’s
resources, Property Owner shall be reimbursed in the order in which funds were
deposited with City as soon as sufficient funds become available, as determined by
the City Council, through the payment of one-time taxes or annual undeveloped land
taxes to the District. The City is not required to establish an undeveloped land tax
within the District to provide such refund.
d) No reimbursement is required until the City Council determines
that sufficient funds are available. Any refund to Property Owner shall not i.nclude
interest.
d Any payment received by the City under this agreement shall be
deposited in a special interest bearing fund and may only be used to’ fund the
construction of the facilities described herein. Upon the formation of a CFD to fund _
these same Improvements, any amount remaining in the special fund may be
transferred to the CFD fund, at the discretion of the Finance Director.
6
L 10. Upon completion of the Improvements, and recording of the notice of
completion for the final phase of the Improvements, the City Engineer shall determine
the total cost of all phases of the Improvements and all related work (Costs), and the
Finance Director shall determine the total amount of revenue including fees, taxes,
interest earned on funds restricted to use only on the Improvements, and other
sources of funds received by the City dedicated to paying for the construction of the
Improvements (Revenues). The Finance Director shall then compare the amount of
Costs and Revenues to determine if there are any excess Revenues as described
below. If excess Revenues of more than $100,000 exist, the Finance Director shall
provide refunds to all eligible parties of all excess Revenues in an amount and in the
manner described below. If excess Revenues are equal to, or less than $100,000 the
City shall retain these funds in a special fund to be used to finance street repair,
maintenance, and landscaping within the Improvements.
a) The total amount of excess Revenues shall be determined by
deducting the amount of the project Costs from the available Revenues. Total project
Costs shall include all costs to plan, design, construct, mitigate environmental
impacts, inspect, and otherwise complete the project to the satisfaction of the City
Engineer, including applicable charges for City staff services. Total Revenues shall
include all monies held by the City dedicated exclusively to the construction of the
Improvements including any fee revenues earmarked.for the Project, CFD #2 taxes,
applicable CFD #l taxes, grants, and interest earned on restricted funds as
determined by the Finance Director.
b) The amount of the refund due to any party shall be based on the
proportion of that party’s payments under this agreement based on its’ proportional -
share of Equivalent Dwelling Units constructed or to be constructed by that party,
weighted as described in Exhibit A, divided by the total number of EDUs constructed
or to be constructed within, and participating in, CFD #2 and/or CFD #2 agreements
7
: - ’ #
1992
to prepay taxes. The amount of the refund shall be determined by multiplying the
proportional share computed above by the total amount of excess revenues.
c) In order to share in the refund of any portion of the excess Revenues,
the eligible party must request to be included in the distribution of funds. Such
request must be made within 90 days after the City/Council’s acceptance of the
Notice of Completion for the final phase of the Improvements. Each request must be
accompanied by documents indicating clear title to the refund unless the request is
being made by the party which originally paid the taxes to the City under a
prepayment agreement or to CFD #2.
d) The Finance Director shall compute the amount of the refund due
each party as described above. Funds may be disbursed to the eligible parties
following Council approval of such refunds.
e) If the City does not receive requests for refund from all eligible
parities within the specified period, and all funds cannot be disbursed as provided by
this section, any remaining funds shall be held in a special fund to be used to support
road and roadway maintenance in and around the Improvements area, as determined
to be necessary by the City Engineer, and approved by the City Council.
f) As a courtesy to all interested parties, the City will maintain a file of
those individuals or companies entitled to a refund, and will mail notices of refund
availability to the names and addresses in this file following the City Council’s
acceptance of the final Notice of Completion. It is the eligible party’s responsibility to
notify the City if the rights to any refunds under this section are assigned to another -
party, or if there is a change in name or address for the eligible party. The City takes
no responsibility for the accuracy of the information included in this file, and is under
no obligation to locate persons or entities who are entitled to refunds. Failure to
8
’ . . 1993
notify any #party of the availability of excess Revenues shall not obligate the City in
any way to extend or modify the above refund procedures.
11. Compliance with this agreement will be accepted by City as an alternate
to the method described in the current Local Facilities Management Plan for local
facilities Management Zone 11 for financing the Improvements described in Paragraph
1. This agreement does not require City to issue building permits or other
development permits or grant approvals or relieve Property Owner of the obligation to
comply with all applicable provisions of law, including but not limited to Carlsbad
Municipal Code Titles 18, 19, 20 and 21.
12. Compliance with the provisions of this agreement is a condition of all
future discretionary approval for the Improvements Property Owner does not comply
with the provisions of this agreement, approval of the Project will not be consistent
with the General Plan, the Growth Management Program, and the Local Facilities
Management Plan, and all subsequent discretionary approvals and permits for the
Project may be withheld by City.
13. In addition, the City will not approve any pending final maps, issue
grading, building or other development permits or take any discretionary action ‘until
the Property Owner has complied with the terms of this agreement due to be satisfied
at the time such approval is required.
14. The City may, at its discretion, elect to pursue any remedy, legal or
equitable against Property Owner and Property Owner’s successors, heirs, assigns,
and transferees of the Project to secure compliance with this agreement. A
15. City shall not, nor shall any officer or employee of City, be liable or
responsible for any loss or damage incurred by Property Owner or any successor or
assign of Property Owner, or by any occupant in Property Owners buildings, as a
9
: ’ * . 1994
result of the exercise of any remedies provided to City in this agreement. Property
Owner agrees to indemnify City for any liabilities incurred by City as a result of City’s
exercise of these remedies.
16. This agreement and the covenants contained herein shall be binding upon
and inure to the benefit of the successors, heirs, assigti, and transferees of Property
Owner with respect to the Project only and City, and shall run with the Project and
create an equitable servitude upon the Project.
17. All notices provided for under this agreement shall be in writing and shall
be delivered in person or served by certified mail postage prepaid. Delivery of notice
to Property Owner shall be presumed to have been made on the date of mailing
regardless of receipt by Property Owner. Notices required to be given to Property
Owner shall be addressed as follows:
Notices to the City shall be delivered to:
Finance Director
City of Carlsbad
1635 Faraday Ave.
Carlsbad, CA 92008
Notices to Property Owner shall be delivered to:
LB/L Concordia Carlsbad-28-LLC
7130 Avenida Encinas, Suite 200
Carlsbad, CA 92009
Each party shall notify the other immediately of any change that would require
any notice delivered hereunder to be directed to another party.
18. This agreement shall be recorded but shall not create a lien or security -
interest in the property.
//I
/I/
//I
10
- , :
1995
’ 19. * The undersigned Property Owner further states, under penalty of perjury,
that he is owner of the property as described herein on Exhibit “B”, or an authorized
agent of the owner, and has the authority to execute this document, including the
binding authorizations herein. /”
Executed this al%, of I%G@Y-I ,200o. ’
*OWNER:
LB/L Concordia Carlsbad-28-LLC
By: LB/L-Condordia Master LLC,
_a Delaware LLC
By:
ATTEST,
Name
%hwJ l/f cl% ‘J-)p&jrlj
(title and organizatiod of sigfiatory)
City Clerk
By:
(sign here)
(print name here)
Approved as to form:
(title and organization of signatory)
&ilkiwL
City Attorney
(Proper notarial pcknowledgment of execution by *OWNER must be attached.)
(President or vice-president and secretary or assistant secretary must sign for
corporations. If only one officer signs, the corporation must attach a resolution
certified by the secretary or assistant secretary under corporate seal empowering that
officer to bind the corporation.)
11
-. , 1896
State of California
Los bmd4e 5 County of 1
ss.
AVC h Z I, ZOOU before me,
Date ’
personally appeared
Mk. , bl
r (e.g., “Jarf Doe, Notary Public”)
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known to me
proved to me on the basis of satisfactory
evidence
to be the person& whose namew.&er6
subscribed to the within instrument and
. . . . . . ..*.b*bbbb.**bbbbbbo.b.*~**.*..
PAM SCOTT
COMM #1233866 i NOTARYPUBLIC CALIFORNIA z
LOSANGELESCOUNR MY ~otmn Expires October 1 2003 t . . . ..*.bbbb.b#.bb.bbbb.b.
signature&on the instrument the person&& or
the entity upon behalf of which the person&j
acted, executed the instrument.
Place Notary Seal Above
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could orevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document: v - .
Document Date: .?!?-a /e
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer’s Name:
q Individual
0 Corporate Officer - Title(s):
0 Partner - 0 Limited 0 General
0 Attorney in Fact
•I Trustee
0 Guardian or Conservator
Cl Other:
Signer Is Representing:
0 1997 National Notary Association - 9350 De Soto Ave., P.O. Box 2402 * Chatsworth, CA 91313-2402 Prod. No. 5907 Reorder: Call Toll-Free 1-600-876-6627
1997 EXHIBIT A
RATE AND METHOD FOR DETERMINING
FAIR SHARE OBLIGATION
RANCH0 SANTA FE AND OLIVENHAIN ROAD
The City Council shall use the following rate and method for determining the fair share
obligation for funding the construction of Ranch0 Santa Fe and Olivenhain Road due
from property conditioned to participate in the financing of these facilities. This
calculation is done as part of an agreement titled PETITION, WAIVER AND CONSENT
TO CREATION OF A COMMUNITY FACILITIES DISTRICT AND AGREEMENT TO PAY
FAIR SHARE (Agreement) which has been voluntarily entered into by the City of
Carlsbad and certain property owners wishing to proceed with development of their
property in advance of the creation of Community Facilities District No.. 2 (CFD No.
2). It is the City and property owners intent to form CFD No. 2 to provide funding for
those improvements described within the above-referenced agreement.
The following rate and method shall be used to determine the fair share and amount
due from any property owner wishing to take advantage of this alternate funding
mechanism.
Basis for Cost Allocation
The basis for allocation of costs to property conditioned with the financing of the
improvements described in the Agreement shall be the Equivalent Dwelling Unit (EDU)
which is defined per product classification as follows:
Product Classification Eauivalent Dwellina Units
Single Family - Detached Units 1 .O EDU
Single Family - Attached Units 0.8 EDU
Multi-Family Units 0.6 EDU
Churches 4.0 EDU per Acre
Commercial/Industrial and other 10 EDU per Acre
12
1998
The number of each type of unit included in a development shall be determined by the
City Engineer based on the most recent final map submitted to the City for approva!.
The EDU determination for non-residential development shall be made by the City
Engineer when such a determination is requested by the property owner. The City
Engineer may request additional information from any property owner as may be
necessary to make his determination. The City Engineer is not required to make a
determination on the number of EDUs for any project until adequate information is
available.
The City Engineer’s determination shall be submitted to the City Council in the table
below. The City Council shall make the final determination of the number of EDUs to
be used in computing the fair share obligation for any project.
Fair Share Amount and Method of Pavment
The City shall collect $10,250 for each EDU as determined by the City Council. This
amount shall be collected in one payment of $10,250 per EDU to be paid prior to
Council consideration of final map approval as described below.
1) Prior to the approval of a final map by the City Council, the property owner
shall pay to the City an amount equal to the number of EDUs included in said final
map, as determined by the City Engineer, times $10,250. If the City Council
determined that the City Engineer’s calculation of the number of EDUs included on the
final map is in error, the Council shall direct the City Engineer to amend his
calculations and direct staff to bring the final map back for approval when such _
correction has taken place. Funds must be paid to the City before the final map will
be scheduled for Council consideration.
13
. Computation of Fair Share Obligation
Colina Roble CT 98-02
Type of Unit
Single Family -
Detached Units
Units
EDUs Cost per Covered by Amount ,:
per Unit EDU Agreement Due
1 $10,250 2*, $287,000
TOTAL $287,000
2) If the property owner has already obtained a final map for units conditioned
with the financing of Ranch0 Santa Fe and Olivenhain Road, the property owner shall
pay to the City the net amount due shown above prior to entering into this
agreement.
14
LEGAL DESCRIPTION
“(HIBIT B
ORDER NO. 1204262-11
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF
SAN DIEGO, AND IS DESCRIBED AS FOLLOWS:
PARCEL A:
THAT PORTION OF LOT 13 OF THE SUBDMSION OF RANCH0 LAS ENCINITAS, IN THE COUNTY
OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 848, FILED IN THE
OFFICE OF, TI-IE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 27, 1898, DESCRIBED AS
FOLLOWS:
BEGINNING AT A POINT ON THE WESTERLY LINE OF SAID LOT 13, WHICH IS DISTANT THEREON
NORTH 2’50’30” WEST 1323.85 FEET FROM THE SOUTHWESTERLY CORNER OF SAID LOT 13;
THENCE NORTH 87OO3’55” EAST 1792.90 FEET TO THE CENTER LINE OF THE COUNTY ROAD
KNOWN AS ROAD SURVEY NO. 454-A AS DESCRIBED IN DEED TO THE COUNTY OF SAN DIEGO,
RECORDED DECEMBER 19,193O IN BOOK 1839, PAGE 356 OF DEEDS, RECORDS OF SAID COUNTY,
THENCE ALONG SAID CENTER LINE AS FOLLOWS: NORTH 36”53’23” WEST - RECORD NORTH
37’01’ WEST - 395.54 FEET T0.TH.E BEGINNING OF A TANGENT 1000.00 FOOT RADIUS CURVE,
CONCAVE NORTHEASTERLY, THENCE NORTHWESTERLY ALONG SAID CURVE 291.91 FEET
THROUGH AN ANGLE OF 16’43’30”; THENCE TANGENT TO SAID CURVE NORTH 20’09’53” WEST
768.03 FEET - RECORD NORTH 20”17’30” WEST 764.26 FEET - TO THE NORTHERLY LINE OF SAID
LOT 13; THENCE ALONG SAID NORTHERLY LINE, SOUTH 87’03’30” WEST 1216.69 FEET TO THE
NORTHWESTERLY CORNER OF SAID LOT 13; THENCE ALONG THE WESTERLY LINE OF SAID
LOT, SOUTH 2’50’30” EAST 1323.84 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THAT PORTION OF LOT 13 OF THE SUBDIVISION OF RANCH0 LAS
ENCINITAS, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA,
ACCORDING TO MAF’ NO. 848, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, JUNE 27,1890, MORE PARTI CULARLY DESCRIBED AS FOLLOWS: 8
BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 13, SAID NORTHWEST CORNER BEING
THE TRUE POINT OF BEGINNING; THENCE EASTERLY ALONG THE NORTHERLY LINE OF SAID
LOT 13 NORTH 87’03’30” EAST, 1,216.68 FEET TO THE CENTERLINE OF ROAD SURVEY 454-A AS
DESCRIBED IN DEED TO THE COUNTY OF SAN DIEGO RECORDED DECEMBER 19,193O IN BOOK
1839, PAGE 356 OF DEEDS, RECORDS OF SAID COUNTY, ALSO KNOWN AS RANCH0 SANTA FE
ROAD; THENCE LEAVING SAID NORTHERLY LINE OF LOT 13 SOUTHERLY ALONG THE
CENTERLINE OF SAID ROAD SURVEY 454-A SOUTH 20’09’53” EAST, 280.84 FEET; THENCE
LEAVING SAID CENTERLINE OF ROAD SURVEY 454-A WESTERLY ALONG A LINE PARALLEL TO
SAID NORTHERLY LINE OF LOT 13 SOUTH 87’03’30” WEST, 518.71 FEET; THENCE LEAVING SAID
PARALLEL LINE SOUTHERLY SOUTH 02°56’30” EAST, 150.00 FEET; THENCE WESTERLY ALONG A
LINE PARALLEL TO SAID NORTHERLY LINE OF LOT 13 SOUTH 87’03’30” WEST, 291.59 FEET;
THENCE LEAVING SAID PARALLEL LINE NORTHERLY NORTH 02’56’30” WEST, 150.00 FEET;
PAGE 1 of 2
2001
ORDER NO. 1204262-11
THENCE WESTERLY ALONG A LINE PARALLEL TO SAID NORTHERLY LINE OF LOT 13 SOUTH
87°03’30” WEST, 490.00 FEET TO THE WESTERLY LINE OF SAID LOT 13; THENCE LEAVING SAID
‘PARALLEL LINE NORTHERLY ALONG SAID WESTERLY LINE OF SAID LOT ;3 NORTH 02°50’30”
WEST, 268.25 FEET TO THE TRUE POINT OF BEGINNING.
PARCEL B: /
AN EASEMENT FOR PUBLIC UTILITIES AND RIGHT-OF-WAY FOR ROAD PURPOSES, OVER,
UNDER, ALONG AND ACROSS A STRIP OF LAND 80 FEET WIDE OF THAT PORTION OF LOT 13 OF
THE SUBDIVISION OF RANCH0 LAS ENCIN-ITAS, IN THE CITY OF CARLSBAD, COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP NO. 848, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 27,1890, MORE PARTICULARLY DESCRIBED
AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 13, SAID NORTHWEST CORNER BEING
THE TRUE POINT OF BEGINNING; THENCE EASTERLY ALONG THE NORTHERLY.,LINE OF SAID
LOT 13 NORTH 87’03’30” EAST, 80.00 FEET; THENCE LEAVING SAID NORTHERLY LINE
SOUTHERLY ALONG A LINE PARALLEL TO THE WESTERLY LINE OF LOT 13, SOUTH 02’50’30”
EAST 268.25 FEET; THENCE WESTERLY ALONG A LINE PARALLEL TO SAID NORTHERLY LINE OF
LOT 13, SOUTH 87°03’30” WEST 80.00 FEET TO = WESTERLY LINE OF SAID LOT 13; THENCE
LEAVING SAID PARALLEL LINE NORTHERLY ALONG SAID WESTERLY LINE OF LOT 13 NORTH
02”50’30” WEST, 268.25 FEET TO THE TRUE POINT OF BEGINNING, TOGETHER WITH SLOPE
RIGHTS TO A MAXIMUM OF TEN (10) FEET.
SEPTEMBER lo,1999 9:32 Ah4 SP PAGE 2 of 2
May 15,200O
LB/L Concordia Carlsbad-2%LLC
7 130 Avenida Encinas, Suite 200
Carlsbad, CA 92009
RE: PETITION, WAIVER AND CONSENT TO CREATION OF A COMMUNITY
FACILITIES DISTRICT AND AGREEMENT TO PAY FAIR SHARE COST OF
CT 98-02 (“AGREEMENT”) COLINA ROBLE
At the meeting of March 28,2000, the Carlsbad City Council adopted Resolution No. 2000-99,
approving the above referenced agreement.
Enclosed for your record is a copy of Resolution No. 2000-99, as well as a fully executed
agreement for your files.
If you have questions concerning the contract, please contact Lisa Hildabrand, Finance Director,
at 602-2430.
Dee Uhich
Office of the Carlsbad City Clerk
Enclosures (2)
1200 Carlsbad Village Drive * Carlsbad, CA 92008-l 989 - (760) 434-2808 a9
OPERATING AGREEMENT
OF
LB/L-CONCORDXA CARLSBAD-28 LLC
THE UNDERSIGNED is executing this Operating Agreement (“Agreement”) for the
purpose of forming a limited liability company (the “Company”) pursuant to the provisions of the
Delaware Limited Liability Company Act, 6 DeL C. Ann., .tit. 6, $4 18-101 et seq. (the “Delaware
Act”), and in furtherance thereof, does hereby agree as follows:
1. Name; Formation. The name of the Company shall be LB/L-CONCORDIA
I CARLSBAD-28 LLC, or such other name as the Members may from time to time hereafter
designate. The Company shall be formed upon the execution and filing by any Member (each of
which is hereby authotized to take such action) of a certificate of formation of the Company with
the Secretary of State of the State of Delaware setting forth the information required by Section
18-20 1 of the Delaware Act.
2. Definitions; Rules of Construction. In addition to terms otherwise defined herein,
the following terms are used herein as defined below:
“Capital Contribution” means, with respect to any Member, the amount of capital
contributed by such Member to the Company in accordance with Section 8 hereof
“Event of Withdrawal of a Member” means the resignation, expulsion, bankruptcy,
or dissolution of a Member or the occurrence of any other event that terminates the
continued membership of a Member in the Company.
“Initial Member” means LB/L-Concordia Master LLC, a Delaware limited liability
company.
“Interest” means the ownership interest of a Member in the Company (which shall
be considered personal property for all purposes), consisting of (i) such Member’s
Percentage Interest in profits, losses, allocations, and distributions, (ii) such Member’s
right to vote or grant or withhold consents with respect to Company matters as provided
herein or-in the Delaware Act, and (iii) such Member’s other rights and privileges as herein
provided. - : .
“Majority in Interest of the Members” means Members whose Percentage Interests
aggregate to greater than 50 percent of the Percentage Interests of all Members.
“NIembers” means the Initial Member and all other persons or entities admitted as
additional or substituted Members pursuant to this Agreement, so long as they remain
Members. Reference to a “Member” means any one of the Members.
“Percentage Interest” means a Member’s share of the profits and losses of the
Company and the Member’s percentage right to receive distributions. of the Company’s
assets. The Percentage Interest of each Member shall initially be the percentage set forth
opposite such Member’s name on Schedule I hereto, as such Schedule shall be amended
from time to time in accordance with the provisions hereof. The combined Percentage
Interest of all Members shall at all times equal 100 percent.
Words used herein, regardless of the number and gender used, shall be deemed and
construed to include any other number, singular or plural, and any other gender, masculine,
feminine, or neuter, as the context requires, and, as used herein, unless the context clearly requires
otherwise, the words “hereof,” “herein,” and “hereunder” and words of similar import shall refer
to this Agreement as a whole and not to any particular provisions hereof. Capitalized terms not
defined herein ‘shall have the meanings ascribed to them in the Operating Agreement of LB/L-
Concordia Master LLC, dated as of April 6 1999, between Concordia Communities, LLC and
LB/Lakeside Capital Partners, LLC.
3. Purpose. The purpose of the Company shall be to acquire, own, develop,
construct, finance and sell certain real property in the City of Carlsbad, California, more
partictilarly described in Exhibit “A” attached hereto (the “Property”), and in connection
therewith, engage in any law-IL1 business that may be engaged in by a limited liability company
organized under the Delaware Act, consistent with the purposes described in the operating
agreement of the Initial Member, and other documents governing Initial Member, as they may be
amended from time to time.
4. Offices.
(a) The principal office of the Company, and such additional offices as the
Members may determine to establish, shall be located at such place or places inside or
outside the State of Delaware as the Members may designate from time to time.
lb) The registered office and registered agent for service of process of the
Company in the State of Delaware is located at c/o Corporation Service Company, 1013
Centre Road, Wilmington, Delaware 19805.
5. Members. The name and business or residence address of each Member of the
Company are as set forth on Schedule I attached hereto, as the same may be amended from time
to time. .
6. T&m. The Company shall continue until dis$glved and terminated in accordance
with Se&on 14 of this Agreement.
7. Management of the Company.
Cd The Members shall have the right to manage the business of the Company,
and shall have all powers and rights necessary, appropriate, or advisable to effectuate and
carry out the purposes and business of the Company, The Members may appoint, employ,
or otherwise contract with any persons or entities for the transaction of the business of the
Company or the performance of services for or on behalf of the Company, and the
Members may delegate to any such person (who may be designated an officer of the
Company) or entity such authority to act on behalf of the Company as the Members may
from time to time deem appropriate.
2
@I Except as to actions herein specified io he taken by all the Members or by
the Members acting unanimously, the duties and powers of the Members may be exercised
by a Majority in Interest of the Members (or by any Member acting pursuant to authority
delegated by a Majority in Interest of the Members).
(4 Any Member, authorized by all Members,‘may execute and file on behalf of
the Company with the Secretary of State of the State of Delaware any certificates’ of
correction of, or certificates of amendment to, the Company’s certificate of formation, one
or more restated certificates of formation and certificates of merger or consolidation and,
upon the dissolution and completion of winding up of the Company, a certificate of
cancellation canceling the Company’s certificate of formation.
(a Notwithstanding anything to the contrary herein, the Initial Member is
hereby authorized and empowered to take all necessary actions and to execute all
documents, agreements and instruments on behalf of and in the name of the Company to
(i) acquire the Property; (ii) entitle and/or develop the Property; and (iii) obtain financing
with respect to the acquisition and development of the Property, including financing for
the construction of homes on the Property.
8. Capital Cotitributions; Capital Accounts; Aahinistrative Matters.
(a> The Initial Member has contributed to the Company in cash the amount set
forth on Schedule I hereto. Except as otherwise agreed by all Members, the Initial
Member shall have no obligation to make any fLrther capital contributions to the
Company. Persons or entities hereafter admitted as Members of the Company shall make
such contributions of cash (or promissory obligations), property, or services to the
Company as shall be determined by the Members, acting unanimously, at the time of each
such admission.
W A single, separate capital account shall be mainttined for each Member.
Each Member’s capital account shall be credited with the amount of money and the f&r
market value of property (net of any liabilities secured by such contributed property that
the Company assumes or takes subject to) contributed by that Member to the Company;
the amount of any Company liabilities assumed by such Member (other than in connection
with a distribution of Company property), and such Member’s distributive share of
Company profits (including tax exempt income). Each Member’s capital account shall be
debited with the amount of money and the fair market value of property (net of any
liabilities that such Member assumes or takes subject to) distributed to such Member; the
amount Qf any liabilities of such Member assumed by the Company (other than in
connection with a contribution); and such Member’s distributive share of Company losses
(including items that, may be neither deducted nor capitalized for federal income tax ’
purposes).
6) Notwithstanding any provision of this Agreement to the contrary, each
Member‘s capital account shall be maintained and adjusted in accordance with the Internal
Revenue Code of 1986, as amended (the “Internal Revenue Code”), and the regulations
3
thereunder (the “Regulations”), including, without limitation, (i) the adjustments permitted
or required by Internal Revenue Code Section 704(b) and, to the extent applicable, the
principles expressed in Internal Revenue Code Section 704(c) and (ii) adjustments
required to maintain capital accounts in accordance with the “substantial economic effect
test” set forth in the,Regulations under Internal Revenue Code Section 704(b).
(4 Any Member, including any substitute Member, who shall receive an
Interest (or whose Interest shall be increased) by means of a transfer to him of all or a part
of the Interest of another Member, shall have a capital account that reflects the capital
account associated with the transferred Interest (or the applicable percentage thereof in
case of a transfer of a part of an Interest).
6) The Company hereby designates the Initial Member as “Tax Matters
Partner” for purposes of Internal Revenue Code Section 6231 and the Regulations
promulgated thereunder. The Tax Matters Partner shall promptly advise each Member of
any audit proceedings proposed to be conducted with respect to the Company.
(9 It’is the intention of the Members that the Company shall be taxed as a
“partnership” for federal, state, local, and foreign income tax purposes. The Members
agree to take all reasonable actions, including the amendment of this Agreement and the
execution of other documents, as may reasonably be required in order for the Company to
qualify for and receive “partnership” treatment for federal, state, local, and foreign income
tax purposes.
(g) The fiscal year of the Company shall be a calendar year. The books and
records of the Company shall be maintained in accordance with generally accepted
accounting principles and Section 704(b) of the Internal Revenue Code and the
Regulations.
09 All items of Company income, gain, loss, deduction, credit, or the like shall
be allocated among the Members in accordance with their respective Percentage Interests
as set forth in Schedule I.
9. A+@nments of Company Interest.
(ai
.: . No Member may sell, assign, pledge, or othenvise transfer or encumber
(collectively “transfer”) all or any part of its interest in the Company, and no transferee of
all or any part of the interest of a Member shall be admitted as a substituted Member,
without, in either event, having obtained the prior written consent of all other Members.
(b) The Members shall amend Schedule I hereto from time to time to reflect
transfers made in accordance with, and as permitted under, this Section 9. Any purported
transfer in violation of this Section 9 shall be null and void and shall not be recognized by
the Company.
10. With&awaL No Member shall have the right to withdraw from the Company
except with the consent of all of the other Members and upon such terms and conditions as may
4
be specifically agreed upon between such other Members and the withdrawing Member. The
provisions hereof with respect to distributions upon withdrawal are exclusive and no Member
shall be entitled to claim any further or different distribution upon withdrawal under Section 18-
604 of the Delaware Act or otherwise.
11. /Reserved j
12. Distributions. Distributions of cash or other assets of the Company shall be made
at such times and. in such amounts as the Members acting unanimously may determine.
Distributions shall be made to (and profits and losses shall be allocated among) Members pro rata
in accordance with their respective Percentage Interests.
13. Return of Capital. No Member shall have any liability for the return of any
Member’s Capital Contribution, which Capital Contribution shall be payable solely from the assets
of the Company at the absolute discretion of the Members, subject to the requirements of the
Delaware Act.
14. Dissolution. Subject to the provisions of Section 15 of this Agreement, the
Company shall be dissolved and its affairs wound up and terminated upon the first to occur of the
following:
(a) [Intentionally Blank];
@> December 3 1,2008;
(cl The determination of all of the Members to dissolve the Company; or
(4 The occurrence of an Event of Withdrawal of a Member or any other event
causing a dissolution of the Company under Section 18-801 of the Delaware Act.
15. Continuation of the Company. Notwithstanding the provisions of Section 14(d)
hereof, the occurrence of an Event of Withdrawal of a Member shall not dissolve the Company if
within ninety (90) days. after the occurrence of such event of withdrawal, the business cf the
Company is continued by the agreement of all remaining Members.
16. Lirizitation on Liabili@. The debts, obligatifis, and liabilities of the Company,
whether arising in contract, tort, or otherwise, shall be solely the debts, obligations, and liabilities
of the Company, and no Member of the Company shall be obligated personally for any such debt,
obligation, or liability of the Company solely by reason of being a Member.
17. Standard of Care; Indemnification of Members, Oflcers, Employees, and Agents.
(a) No Member or officer shall have any personal liability whatsoever to the
Company or any other Member on account of such Member’s or officer’s status as a
Member or officer or by reason of such Member’s or officer’s acts or omissions in
5
.
connection with the conduct of the business of the Company; provided, however, that
nothing contained herein shall protect any Member or officer against any liability to the
Company or the Members to which such Member or officer would otherwise be subject by
reason of(i) any act or omission of such Member or officer that involves actual fraud or
will&l misconduct or (ii) any transaction from which such Member or officer derived
improper personal benefit.
00 The Company shall indemnify and hold harmless each Member and officer
and the affiliates of any Member or officer (each an “Indemnified Person”) against any and
all losses, claims, damages, expenses, and liabilities (including, but not limited to, any
investigation, legal and other reasonable expenses incurred in connection with, and any
amounts paid in settlement of, any action, suit, proceeding, or claim) of any kind or nature
whatsoever that such Indemnified Person may at any time become subject to or liable for
by reason of the formation, operation, or termination of the Company, or the Indemnified
Person’s acting as a Member or officer under this Agreement, or the authorized actions of
such Indemnified Person in connection with the conduct of the affkirs of the Company
(including, without limitation, indemnification against negligence, gross negligence, or
breach of duty):. provided, however, that no Indemnified Person shall be entitled to
indemnification if and to the extent that the liability otherwise to be indemnified for results
from (i) any act or omission of such Indemnified Person that involves actual fraud or
willt%l misconduct or (ii) any transaction from which such Indemnified Person derived
improper personal benefit. The indemnities provided hereunder shall survive termination
of the Company and this Agreement. Each Indemnified Person shall have a claim against
the property and assets of the Company for Payment of any indemnity amounts from time
to time due hereunder, which amounts shall be paid or properly reserved for prior to the
making of distributions by the Company to Members. Costs and expenses that are subject
to indemnification hereunder shall, at the request of any Indemnified Person, be advanced
by the Company to or on behalf of such Indemnified Person prior to final resolution of a
matter, so long as such Indemnified Person shall have provided the Company with a
written undertaking to reimburse the Company for all amounts so advanced if it is
ultimately determined that the Indemnified Person is not entitled to indemnification
hereunder.
(4 The contract rights to indemnification and to the advancement of expenses
conferred ‘In this Section 17 shall not be exclusive of’&y other right that any person may
have or hereafter acquire under any statute, agreement, vote of the Members, or
otherwise.
(&I The contract rights to indemnification and to the advancement of expenses
conferred in this Section 17 shall be subject to the indemnification and related terms and
conditions of the Operating Agreement of LB/L-Concordia Master LLC, between
Concordia Communities, LLC and LB/Lakeside Capital Partners, UC, dated as of April
- 1999, and in the case of a conflict between the indemnification provisions of this ’
Agreement and the indemnification provisions of the Operating Agreement of LB/L-
Concordia Master LLC, the provisions of the LB/L-Concordia Master LLC Operating
Agreement shall control.
6
w The Company may maintain insurance, at its expense, to protect itself and
any Member, officer, employee, or agent of the Company, or another limited liability
company, corporation, partnership, joint venture, trust, or other enterprise against any
expense, liability, or loss, whether or not the Company would have the power to indemnify
such person against such expense, liability, or loss under the Delaware Act.
(0 The Company may, to the extent authorized from time to time by the
Members, grant rights to indemnification and to advancement of expenses to any officer,
employee or agent of the Company to the fullest extent of the provisions of this Section 17
with respect to the indemnification and advancement of expenses of Members of the
Company.
18. Amendments This Agreement may be amended only upon the written consent of
all Members.
19. Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Delaware without giving effect to any choice of
law or conflict of law provision or rule (whether of the State of Delaware or any other
jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of
Delaware.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of
April 15, 1999.
MEMBER:
LB/L-CONCORDIA MASTER UC
By: Y M&in T. Andrews
Its: President and Authorized Signatory
.
255632.01 .SF (5H8WOl!.DOC) 041499 853 PM
7
l ’
.
Exhibit A
(C281
LEGAL DESCRIPTION
THE LANJJ REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS:
PARCEL A:
THAT PORTION OF LOT 13 OF THE SUBDIVISION OF RANCH0 LAS ENC;NITAS, IN
THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF
NO. 848, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, JUNE 27, 1898, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT- ON THE WESTERLY LINE OF SAID IMT 13, WHTCH IS
DISTANT THEREON NORTH 2*50'30" WEST 1323.85 FEET FROM THE SOUTHWESTERLY CORNER OF SAID LOT 13; THENCE NORTH 87*03'55" EAST ,. 1792.90 FEET TO THE CENTER LINE OF THE COUNTY ROAD KNOWN AS ROAD SURVEY NO. 454-A, AS DESCRIBED IN DEED TO THB COUNTY OF SAN DIEGO,
RECORDED DECEMBER 19, 1930 IN BOOK 1839, PAGE 356 OF DEEDS, RECORDS OF
SAID COUNTY; THENCE. ALONG SAID CENTER LINE AS FOLLOWS: NORTH 36*53'23" WEST - RECORD NORTH 37OOl' WEST - 395.54 FEET TO THE
BEGINNING OF A TANGENT 1000.00 FOOT RADIUS CURVB, CONCAm NORTHEASTERLY; THENCE NORTHWESTERLY ALONG SAID CURVE 291.91 FEET THROUGH AN ANGLE OF 16°43'30"; THENCE TANGENT TO SAID CURVE NORTH 20009'53" WEST 768.03 FEET - RECORD NORTH 20*17'30" WEST 764.26 FEET - TO THE NORTHERLY LINE OF-SAID LOT 13; THENCE ALONG SAID NORTHERLY
LINE, SOUTH 87°03'30w WBST1216.69 FEET TOTHE NORTHWESTERLY CORNEROF
SAID LOT 13; THENCE ALONG THE WESTERLY LINE OF SAID LOT, SOUTH 2050'30" EAST 1323.84 FEET To THE POINT OF BEGINNING.
EXCEPTING THEREFROM THAT PORTION OF LOT 13 OF THE SUBDIVISION OF RANCH0 LAS ENCINITAS, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA, ACCORDING TO MAP NO. 848, FILED IN THE OFFICE OF
THE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 27, 1890, MORE PARTICULARLY DESCRIBED AS FOLLOWS: .: .
BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 13, SAID NORTHWEST CORNER BEING THE TRUE POINT OF BEGINNING; THENCE EASTERLY ALONG THE NORTHERLY LINE OF SAID LOT 13 NORTH 87*03'30"'.EAST, 1,216.68 FEET TO THE CENTERLINE OF ROAD SURVEY 454-A AS DESCRIBED IN DEED TO THE COUNTY OF SAN DIEGO RECORDED DECEMBER 19, l-930 IN BOOK 1839, PAGE 356 OF . DEEDS, RECORDS OF SAID COUNTY, ALSO KNOWN AS RANCH0 SANTA FE ROAD; - THENCE LEAVING SAID NORTHERLY LINE OF LOT 13 SOUTHERLY ALONG THE CENTERLINE OF SAID ROAD SURVEY 454-A SOUTH 20O09'53" EAST, 280.84 FEET;, THENCE LEAVING SAID CENTERLINE OF ROAD SURVEY 454-A WESTERLY ALONG A LINE PARALLEL TO SAID NORTHERLY LINE OF LOT 13 SOUTH 87OO3'30" WEST, 518.71 FEET; THENCE LEAVING SAID PARALLEL LINE SOUTHERLY SOUTH
T:O4/IO/91 Ol:55:04 v: / / : I JL 00
02OS6'30" EAST, 150.00 FEET; THENCE WESTERLY ALONG A LINE PARALLEL TO
SAID NORTHERLY LINE OF LOT 13 SOUTH 87*03'30" WEST, 291.59 FEET;
THENCE LEAVING SAID PARALLEL LINE NORTHERLY NORTH 02056'30" WEST,
150.00 FEET; THENCE WESTERLY ALONG ,A LINE PARALLEL TO SAID NORTHERLY LINE OF LOT 13 SOUTH 87*03'30" WEST, 490.00 FEET TO THE WESTERLY LINE OF SAID LOT 13; THENCE LEAVING SAID PARALLEL LINE NORTHERLY ALONG SAID
WESTERLY LINE OF SAID LOT 13 NORTH 02*50'30" WEST, 268.25 FEET TO THE TRUE POINT OF BEGINNING.
PARCEL B:
AN EASEMENT FOR PUBLIC UTTLITIES AND RIGHT-OF-WAY FOR ROAD-PURPOSES, OVER, UNDER, ALONG AND ACROSS A STRIP‘OF LAND 80 FEET WIDE OF THAT
PORTION OF LOT 13 OF THE SUBDIVISION OF RANCH0 LAS ENCINITAS, IN THE
CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING
TO MAP NO. 848, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 27, 1890, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 13, SAID NORTHWEST ' CORNER BEING THE TRUE POINT OF BEGINNING; THENCE EASTERLY ALONG THB NORTHERLY LINE OF SAID LOT 13 NORTH 87*03'30" EAST, 80.00 FEET; THENCE LEAVING SAID NORTHERLY LINE SOUTHERLY ALONG A LINE PARALLEL TO THE WESTERLY LINE OF IX)T 13, SOUTH 02*50'30" EAST 268.25 FEET; THENCE WESTERLY ALONG A LINE PARALLEL TO SAID NORTHERLY LINE OF LOT 13, SOUTH 87*03'30" WEST 80.00 FEET TO THE WESTERLY LINE OP SAID LOT 13; THENCE LEAVING SAID PARALLEL LINE NORTHERLY ALONG SAID WESTERLY LINE OF LOT 13 NORTH 02*50'30" WEST, 268.25,FEET TO THE TRUE POINT OF BEGINNING, TOGETHER WIfH SLOPE RIGHTS TO A MAXIMUM OF TEN (10) FEET.
: ,* .-....- .
‘. . . a . - :. i .,- & I,
OPERATING AGREEMENT
OF
LB/L-CONCORDIA MASTER LLC,
a Delaware Limited Liability Company
THE SECURITIES ISSUED UNDER THIS AGREEMENT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR REGISTERED OR QUALIFIED UNDER THE
APPLICABLE STATE SECURITIES LAWS, IN RELIANCE UPON EXEMPTIONS
FROM REGISTRATION AND QUALIFICATION PROVIDED IN THE SECURITIES
ACT AND THE APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE
SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND
QUALIFICATION OR REGISTRATION UNDER THE APPLICABLE STATE
SECURITIES LAWS, OR AN OPINION OF COUNSEL SATISFACTORY TO THE
ISSUER IN ITS SOLE DISCRETION THAT SUCH REGISTRATION OR
QUALIFICATION IS NOT REQUIRED.
IN ADDITION, THE SECURITIES ISSUED UNDER THIS AGREEMENT
MAY BE SOLD OR TRANSFERRED ONLY IN COMPLIANCE WITH THE
RESTRICTIONS ON TRANSFER SET FORTH HEREIN.
OPERATING AGREEMENT
OF
LB/L-Concordia Master LLC, .
a Delaware Limited Liability Company
THIS OPERATING AGREEMENT (“Aweement”) is made and entered into as of
the 15th day of April, 1999, by and among CONCORDIA COMMUNITIES, LLC, a
Delaware limited liability company (“Concordia” or “Oneratine Member”), and
LB/LAKESIDE CAPITAL PARTNERS, LLC, a Delaware limited liability company
(“LBL Manaeer”).
‘. ARTICLE I.
GENERAL PROVISIONS
1.1. Formation and Filings. The Members hereby form a limited liability
company (the “Comnanv”) pursuant to the Act. This Agreement shall constitute the
operating agreement among the Members. The Members agree to execute such
documents and to take such other action as may from time to time be deemed necessary
or appropriate by the LBL Manager under the laws of the State of Delaware with respect
to the formation, operation and continued good standing of the Company as a limited
liability company.
1.2. The business of the Company shall be conducted under the name of Name.
“LB/L-Concordia Master LLC” or such other name as may be designated by LBL
Manager from time to time.
1.3. Term. The term (“Term”) of the Company shall commence as of the date of
filing of the Certificate, and shall continue until the earlier of (A) December 3 1,2008 or
(B) the dissolution, liquidation and termination of the Company pursuant to the
provisions of Article XIII.
1.4. Business Purpose and Powers. The purpose of the Company shall be to
acquire, obtain entitlements with respect to, improve and develop single-family detached
homes and ancillary structures, use, sell, exchange, finance and refinance and othenvise
. .-
Member shall distribute the minutes to all Members. In addition to meetings held in
person, Representatives of the Members shall confer by telephone as often as reasonably
requested by the LBL Manager to rev*iew and discuss the progress of the Project, affairs
of the Company and compliance with each Current Project Budget and Plan for each
Property.
2.7. Renresentatives. Each Member shall designate in a writing one or more
representatives, each of whom shall be authorized to act, by himself or herself under this
Agreement for and on behalf of such Member. Any written act, approval, consent of a
representative, so designated (“Renresentative”) shall be deemed to be the act, approval,
consent or vote of the Member which designated such representative and neither the
Company nor any Member shall be required to inquire into the authority of such
representative as to such written act, approval, consent or vote on behalf of the Member
which designated such representative and alternate. Any such representative may be
replaced by written notice from the Member that designated such representative to the
other Members. Until kther notice, the designated representatives of the Members shall
be: ‘.
Operating Member: Representatives: 0. Randolph Hall, Jr.
Don Undenvood
Michael Ugar
LBL Manager: Representatives: Melvin T. Andrews
Ronald W. Lee
2.8. Execution of Companv Documents. The LBL Manager, acting alone, shall
have the authority to execute and deliver on behalf of the Company, and each Project all
agreements, instruments or other documents to which the Company will be a party or
bound (including such documents and instruments as necessary to comply with the Act
and other applicable law for the formation, operation, qualification or registration of a
limited liability company in all jurisdictions where the Company may conduct business or
hold property). The Operating Member, acting alone, shall have the authority to execute
and deliver, on behalf of the Company, agreements, instruments or other documents to
which the Company will be a party or bound, if and onlv if (A) the document is Project-
related, is for $25,000 or less, and is in accordance with the Current Project Budget and
Plan, or (B) the LBL Manager specifically authorizes the Operating Member in writing to
execute and deliver such agreement, instrument or other document.
2.9. Operating Member and Affiliates. Subject t.o the terms and conditions of
this Agreement, the LBL Manager shall execute all documents and instruments entered
into behveen the Company and the Operating Member and otherwise act on behalf of the
11
Company in all dealings (includin,, 0 but not limited to, default notices, termination or
litigation) between the Company and the Operating Member in respect of the
Management Provisions and other matters arising under this Agreement.
2.10. Leeal Authoritv. Without limiting any applicable provision of this
Agreement. the LBL Manager acting alone shall have the sole right on behalf of the
Company to send any appropriate notice of default or termination, to institute legal
proceedings and/or to take such other action as may be necessary or appropriate to
enforce the rights and protect the interests of the Company pursuant to this Agreement,
the Ancillary Agreements, or any other agreement now or hereafter entered into between
the Company and any Member or its Affiliate.
2.11. Anpointment of Officers. The LBL Manager may elect officers of the
Company. The officers of the Company, if deemed necessary by the LBL Manager, may
include a chairperson, president, vice-president, secretary and chief financial officer. Any
individual may hold any number of offices, and a Representative or officer of a Member
may serve as an officer. The officers shall exercise such powers and perform such duties
as shall be determined from time to time by the LBL Manager, subject to the limitations ’
contained herein. Each officer of the Company shall serve at the pleasure of the LBL
Manager and may be removed at any time by the LBL Manager with or without cause.
Any officer may resign at any time by giving written notice to the LBL Manager. Any
resignation is without prejudice to the rights, if any, of the Company under any contract
to which the officer is a party. A vacancy in any office because of death, resignation,
removal, disqualification or any other cause shall be filled by the LBL. Manager.
ARTICLE III,
FISCAL YEAR
The “Fiscal Year” of the Company for tax and accounting purposes shall be each
year ending on December 3 1, unless some other fiscal year is required pursuant to the
provisions of the Code.
ARTICLE IV.
CERTAIN RIGHTS AND OBLIGATIONS OF
MEMBERS
4.1. Limitation of Liabilitv. No Member of the Company shall be personally
liable under any judgment of a court, or in any other manner, for any debt, obligation, or
12
r) .- I
the date first above written.
“Concordia”
CONCORDIA CO~MMUNITIES, LLC, a Delaware limited
liability compaxiy
Name: 0. Randolph Hall, Jr.
Title: Manager
“LBjL MANAGER”
LB/LAKESDE CAPITAL PARTNERS, LLC
-
By:
55
Received: 121 S/S9 12216;
' 12/.09/i9' THU 11:03 FAX 8188 -072
SlSS41SO72 -> CONCOROIA HOMES OF CALIF LLC; Page 2
LAKESIDE REALTY AT-I‘SORS Qoo2
the date first above written.
“Concordia”
CONCORDIA COMMUNITIES, LLC, a Delaware limited
liability. company
By:
Name: 0. Randolph Hall, Jr.
Title: Manager
“LBL MANAGER”
LB/LAKESIDE CAPITAL PARTNERS, LLC
By:
Iti: Authorized Signatory
55