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HomeMy WebLinkAboutCT 99-06; Palomar Forum Associates LP; 2004-0538024; Petition & WaiverRECORDING REQUESTED BY: Carlsbad City Clerk‘s Office WHEN RECORDED MAIL TO: City Clerk City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 DOC # 2005-0964621 I llllllll Ill IIIII 11111 111ll111ll111111lll1 Ill11 Ill11 Ill11 11111 1111 1111 NOV 04,2005 4:33 PM OFFICIAL RECORDS SP.N DIEGO COUNTY RECORDER’S OFFICE GREGORY J SMITH, CUUNTY RECORDER FEES: 19.00 PAGES: 5 I 111111 Ill11 11111 Ylll11111 Ill11 Ill11 1111 Ill11 Ill11 1111 Ill11 Ill11 1111 Ill1 1111 SPACE ABOVE THIS LINE FOR RECORDER’S USE Amendment No, 1 to Waiver and Consent to Creation of the Community Facilities District (CT 99-06) Palomar Forum Associates L.P. Recorded original June 9, 2004 as Document No. 2004-0538024. \b,2U 9-L-05 \County RecorderRecorder Cover Sheet.doc Amendment No. 1 to Waiver and Consent to Creation of the Community Facilities District(CT 99-06) WHEREAS, the City of Carlsbad (“City”) and Palomar Forum Associates L.P., a California limited partnership (“Property Owner”) entered into that certain “Waiver and Consent to Creation of a Community Facilities District and Agreement to Pay Fair Share Cost of CT 99-06” dated June 4,2004 (the “Original Agreement”); and WHEREAS, Section 4(b) of the Original Agreement requires, among other things, that Property Owner deposit with the City a letter of credit or cash (the “Deposit”) equal to Property Owner’s fair share of the cost of the extension of Faraday Avenue between Orion Way and Melrose Drive (the “Faraday Avenue Extension”) prior to the transfer of a fee simple interest in all or any portion of CT 99-06 or issuance of a building permit for the first commercial structure to be constructed within CT 99-06; and WHEREAS, since execution of the Original Agreement, all of the right-of-way for the Faraday Avenue Extension has been dedicated to the City, all resource agency permits required for the Faraday Avenue Extension have been obtained by the City and performance bonds have been provided for completion of the Faraday Avenue Extension; and Whereas, the Property Owners in the proposed CFD continue to cooperate and work diligently toward its formation which is expected to occur soon and within the year, but after the sale of the first commercial lot; and Whereas, this amendment shall be recorded to, among other things, insure that prospective purchasers are aware of the contingent obligation; and WHEREAS, all of the participating property owners in the Community Facilities District (the “CFD”) proposed to finance the Faraday Avenue Extension, among other improvements, have executed agreements like the Original Agreement consenting to the formation of the CFD to finance their fair share of the costs of the Faraday Avenue Extension; and WHEREAS, Property Owner has completed the widening of Palomar Airport Road required by the approvals for CT 99-06 pursuant to the Original Agreement and applicable subdivision improvement agreements. NOW, THEREFORE, in consideration of proceeding with the formation of the CFD and the processing of CT 99-06 and completion of the Palomar Airport Road widening, the Property Owner and City hereby agree to the following: 1. Section 4(b) of the Original Agreement shall be amended as follows: Property Owner’s payment of its Fair Share, initially estimated to be in an amount not to exceed $2,003,805, shall be secured by the posting of cash or a letter of credit with the City of Carlsbad, in a form and from a financial institution acceptable to the Finance Director, within ninety(90) days of a demand to the owner by the Finance Director. If not paid or an extension of the demand for payment is made by the City Council, the Property owner and its successors in interest agree that the obligation shall become a lien on all parcels with the subdivision and shall be entitled to enforcement, collection and priority as a tax lien. 8/16/05 4083.3 H&O: #25864 vl 2. Except as modified herein the Original Agreement shall remain in full force and effecExecuted this/&day of September, 2005 PALOMAR FORUM ASSOCIATES L.P., a California limited partnership CITY OF CARLSBAD, a municipal corporation of Title: Mayor ATTEST: APPROVED AS TO FORM: c N~~RONALD R. BALL 9 Title: City Attorney 8/16/05 4083.3 H&O: #25864 VI CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California 1 } ss. .- - 11 I . _- - Name ana\Title offlfficer (e.g., "Jane Doe, Notary Public") On % Dale I q!. m65, before me, d. Place Notary Seal Above donally known to me 0 proved to me on the basis of satisfactory evidence to be the personwwhose name@ls/aesubscribed to the within instrument and acknowledged to me that he/s+tdtky executed the same in his/h&hk authorized capacity@$ and that by his/kerHlteir signaturewon the instrument the person(8): or the entity upon behalf of which the person(# acted, executed the instrument. WITNESS rnv hand and official seal. Signature of Notary Public / 1 W OPTlONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer@) Signer's Name: Individual 0 Corporate Officer - Title(s): 0 Partner - 0 Limited 0 General 0 Attorney in Fact 0 Trustee I I 0 Guardian or Conservator Other: Signer Is Representing: I Signer's Name: 0 Individual 0 Corporate Officer - Title(s): 0 Partner - 0 Limited 0 General 0 Attorney in Fact 0 Trustee 0 Guardian or Conservator Other: I I Signer Is Representing: 0 2004 National Notary Association 9350 De Soto Ave., P.O. Box 2402 Chatsworlh, CA 91 313-2402 Item No. 5907 Reorder: Call Toll-Free 1-800-876-6827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT } SS. State of California County of StW 31 Phil On c;Z-16 - 200.5 , before me, z&?&t!L.E & VlH p At.rcseAJ personally appeared edbDgA.b,5 mn hpD7-L , , Date Name and Title of Officer (e g , "Jane Doe, Notary Public") Name@) of Signer@) wpersonally known to me 0 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) Mare subscribed to the within instrument and acknowledged to me that+rekbe/they executed the same in li+#tm/their authorized capacity(ies), and that by -hidbedtheir signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. Place Notary Seal Above WITNESS my hand and official seal. Signatwe of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: 1 Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer ~- -. . Signer's Name: fi 0 Individual 0 Corporate Officer - Title(s): Partner -U Limited General Attorney in Fact Trustee 0 Guardian or Conservator 0 Other: Signer Is Representing: u 0 1997 National Notary Associatlon 9350 De Soto Ave , P.0 Box 2402 - Chatsworth, CA 91313-2402 Prod No. 5907 Reorder Call Toll-Free 1-800-876-682 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Clerk City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 (43 OFFICIAL RECORDS SM DIEGO CnUHTY F:ECORDER’S OFFICE GliEFORY J. SMITH? GOLNTY RECORDER FEES: 9.90 Space Above Line For Recorder’s Use WAIVER AND CONSENT TO CREATION OF A COMMUNITY FACILITIES DISTRICT AND AGREEMENT TO PAY FAIR SHARE COST OF CT 99-06, (“AGREEMENT”) WHEREAS, the undersigned Property Owner is processing for development with the City of Carlsbad (hereinafter referred to as “City”) a development project known and identified as Tentative Tract Map CT 99-06 (hereinafter referred to as the “Project”); and WHEREAS, the legal description for the property included in the Project (the “Property”) is shown on Exhibit “A” attached hereto and incorporated herein by reference; and WHEREAS, City has determined this Project is located within the boundaries of a proposed Community Facilities District known as Community Facilities District No. 3, (Faraday Ave. and Melrose Drive) (hereinafter referred to as the “District”); and WHEREAS, the District is intended to be formed to finance those improvements generally described in Section 1 herein; and, WHEREAS, Property Owner desires to obtain City approval of a final subdivision map for the Project prior to the formation of District; and, 6/4/04 4083.2 H&O: #5344 v9 1 WHEREAS, a condition of approval of Tentative Tract Map CT 99-06 states: “Prior to recordation of a final map or issuance of a grading permit, whichever occurs first, a financial guarantee for the construction, as specified in the appropriate agency permissions, of Faraday Avenue extension between Orion Way and Melrose Drive shall be approved by the Carlsbad City Council” (the “Tentative Map Condition”); and WHEREAS, the compliance with tentative map conditions is a condition of approval for the final map for the Project; and, WHEREAS, the City and Property Owner desire to agree to an alternative method of financing the improvement of Faraday Avenue as described in Section 1 herein that will allow Property Owner to discharge its fair share obligation for said improvement in lieu of, or in anticipation of, participation in District; and, WHEREAS, the City Council agree that Property Owner, upon entering into and complying with the terms of this Agreement including, without limitation, the terms for payment of the fair share described herein, has met the requirement set forth in the Tentative Map Condition, to provide a financial guarantee for the construction of the improvement of Faraday Avenue described in Section 1 below; and, WHEREAS, the Property Owner voluntarily enters into this Agreement with respect to the Project; and, WHEREAS, the City Council has determined that in consideration of the improvement phasing program described below, 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 fbture construction of Property Owner’s fair share of Faraday Avenue; 6/4/04 40X3.2 H&O: #5344 v9 2 NOW, THEREFORE, in consideration of proceeding with the processing of the Project, the undersigned Property Owner and City hereby agree and certify to the following : 1. Property Owner has previously petitioned 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 “Improvements”) which are generally described as follows: (a) Palomar Airport Road widening from west of Melrose Dr. to the Vista City limits (“Palomar”); (b) Faraday Ave. from Orion St. to Melrose Dr. (“Faraday Avenue”); and (c) Melrose Dr. from Palomar Airport Rd. to the Vista City limits (“Melro se”). 2. The cost of construction, engineering, environmental mitigation, legal and other incidental expenses of the Improvements will be fbnded by the District. 3. Property Owner acknowledges its right to notice of and participation in all phases of formation under the “Mello-Roos Community Facilities Act of 1982,” and hereby 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 6/4/04 4083.2 H&O: #5344 v9 3 California statutes and consents to and supports formation of said District with respect to the Project. 4. (a) Property Owner agrees to pay to City, or provide its fair share of the costs of the Faraday Avenue improvements (“Fair Share”) as set forth below. (b) Property Owner’s payment of its Fair Share, initially estimated to be in the amount of $2,003,805, shall be secured by the posting of cash or a letter of credit, in a form and from a financial institution acceptable to the City Finance Director, prior to the earlier of (i) transfer of a fee simple interest in all or any portion of the Property or (ii) issuance of a building permit for the first commercial structure to be constructed within the Project. If any portion of the Property is transferred without the posting of the required security, both the succeeding property owner and Property Owner shall be jointly and severally responsible for providing the required security. (c) The Property Owner’s Fair Share will be conclusively determined by the City Council in the manner described in Exhibit “B” attached hereto and incorporated herein by reference based upon (i) the actual costs of Faraday Avenue or such other alternative improvements found by the City Council to be hnctionally equivalent to Faraday Avenue (“Functionally Equivalent Improvements”), if the District is not formed, or (ii) according to the methodology used to establish the spread of special taxes of the District, if the District is formed. (d) Any funds paid to the City shall be held in an interest-bearing account and disbursed only for use in the construction of Faraday Avenue or the Functionally Equivalent Improvements. 6/4/04 4083.2 H&O: #5344 v9 4 (e) Alternatively, if the District is formed and the Project is included within it, Property Owner’s obligation to pay its Fair Share pursuant to this Agreement shall be satisfied upon formation of the District through the issuance of bonds and levy of special taxes of the District. In addition, within a reasonable time after formation of the District all funds held by the City provided by the Property Owner pursuant to this Agreement that have not been previously expended for Faraday Avenue or Functionally Equivalent Improvements will be returned to the Property Owner or any letter of credit provided on behalf of the Property Owner pursuant to this Agreement will be released. For purposes of this Section 4(e), “formation of the District” shall mean (i) the District has been established and authorized to finance the Faraday Avenue improvements, among others, (ii) the qualified electors of the District have authorized the special taxes and bonded indebtedness of the District and (iii) the limitations period has expired for challenging such election. (9 Property Owner agrees to construct Palomar and Melrose in accordance with its conditions of approval and the applicable Subdivision Improvement(s) Agreements for CT 99-06. Property Owner hrther agrees that the CT 99-06 Subdivision Improvement Agreement for Melrose shall stipulate that the Property Owner shall not commence construction of Melrose (other than the rough grading of the Melrose right-of-way within the Project), the open space lot to be located at the northwestern corner of the hture intersection of Palomar Airport Road and Melrose, and construction of Street “C” within the Project for up to five (5) years following execution of the Subdivision Improvement Agreement or until Property Owner has received written notice to proceed from the City Engineer, whichever occurs sooner. Property Owner 6/4/04 4083.2 H&O: #5344 v9 5 shall complete such construction of an improvement within twelve (12) months following such notice. In addition, Property Owner agrees that building permits for any structures to be constructed on Lots 1-3 and 8 of CT 99-06 will not be issued prior to formation of the District or such earlier time as approved by the City Council. 5. Property Owner acknowledges that this Agreement to pay its Fair Share and participate in the financing of the Faraday Avenue 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 Faraday Avenue improvements. 6. Property Owner hereby waives its right to challenge the amount, establishment or imposition of said Fair Share and fbrther 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 the Property by the applicable tentative map CT 99-06 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 6/4/04 4083.2 H&O: #5344 v9 6 said Fair Share as a fee under provisions of Government Code Section 66000, et. seq. or any successor or related statutes. (a) 9. In the event no District is formed, fbnds on deposit will be utilized only as a fair share of costs to otherwise complete Faraday Avenue or Functionally Equivalent Improvements. (b) If the actual Fair Share obligation is lower than the amount previously deposited or provided by Property Owner to City, City shall refbnd any excess, in the manner described in this Section 9 and in Section 10 below. (c) Any refund shall be made from fhds available within District upon District formation or the completion of construction of Faraday Avenue or the Functionally Equivalent Improvements and shall not be an obligation of City’s General fund or other revenue sources. (d) No reimbursement is required unless and until the City Council determines that sufficient hnds are available to complete construction of Faraday Avenue or the Functionally Equivalent Improvements. 10. (a) Upon completion of Faraday Avenue or the Functionally Equivalent Improvements, and recording of the Notice of Completion for the final phase of the construction, the City Engineer shall determine the total cost of all construction and all related work (“Costs”), and the Finance Director shall determine the total amount of revenue including fees, taxes, interest earned on hnds received by the City dedicated to paying for such construction (“Revenues”). The Finance Director shall then compare the amount of Costs and Revenues to determine if there are any excess Revenues in an amount and in the manner described below. If excess Revenues are equal to, or less than GI4104 4083.2 H&O: #5344 v9 7 $10,000, the City shall retain these hnds in a special fund to be used to finance street repair, maintenance, and landscaping of the improvements. (b) The total amount of excess Revenues shall be determined by deducting the amount of the 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 Faraday Avenue or the Functionally Equivalent Improvements including any fee revenues earmarked for the Project, CFD No. 3 taxes and bond proceeds, grants, and interest earned on restricted funds as determined by the Finance Director. (c) The amount of the refund due to Property Owner shall be based on its proportionate share of the Costs and Revenues as determined in accordance with Exhibit B. (d) 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 aRer the City Council’s acceptance of the Notice of Completion for the final phase of construction. Each request must be accompanied by documents indicating clear title to the rehnd unless the request is being made by the party who originally paid the funds to the City pursuant to this Agreement. 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 refbnd availability to the names and addresses in this file following the City Council’s’ acceptance of the final Notice of G/4/04 4083.2 H&O: #5344 v9 8 Completion. It is the eligible party’s responsibility to notify the City if the right to any refunds under this section is 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 refinds. Failure to notify any party of the availability of excess Revenues shall not obligate the City in any way to extend or modify the above refbnd procedures. (e) The Finance Director shall compute the amount of the refind due the Property Owner as described above. Funds may be reimbursed to the Property Owner following City Council approval of such reimbursement. 11. Compliance with this Agreement will be accepted by City as the financial guarantee for Faraday Avenue required by the Tentative Map Condition. 12. 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 2 1. 13. Compliance with the provisions of this Agreement is a condition of all future discretionary approval for the Project. If 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 the City. GI4104 4083.2 H%O: #5344 v9 9 14. 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. 15. 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. 16. City shall not, nor shall any officer or employee of the 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 Owner’s buildings, as a result of the exercise of any remedies provided to the 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. 17. This Agreement and the covenants contained herein shall be binding upon and inure to the benefit of the successors, heirs, assigns, and transferees of Property Owner with respect to the Property only and City, and shall run with the Property and create an equitable servitude upon the Property. 18. 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 and/or City shall be addressed as follows: Notices to the City shall be delivered to the: 6/4/04 4083.2 H&O: #5344 v9 10 Finance Director City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 Notices to Property Owner shall be delivered to: Palomar Forum Associates c/o Davis Partners, LLC Attn: Larry Nelson 1420 Bristol Street North Suite 100 Newport Beach, CA 92660 Each party shall notifjr the other of any change that would require any notice delivered hereunder to be directed to another party 19. This Agreement shall be recorded but shall not create a lien or security interest in the Project. 6/4/04 4083.2 H&O: #5344 v9 11 20. The undersigned Property Owner hrther states, under penalty of perjury, that he is owner of the property as described in Exhibit “A”, or an authorized agent of the Property Owner, and has the authority to execute this document, including the binding authorization herein. Executed this 4“’ day of June, 2004. PALOMAR FORUM ASSOCIATES L.P., a California limited partnership Larry Nelsot)! Partner CITY OF CARLSBAD, a municipal corporation of the State of Californih h . NamQ Raymond R. Patchett Title: City Manager ATTEST: APPROVED AS TO FORM: ML Name: 61 wy e Title: &T$ Aqbnq GI4104 4083.2 H&O: #5344 v9 12 EXHIBIT A DESCRIPTION OF PROPERTY 6/4/04 4083.2 H&O: #5344 v9 ORDER NO. : 2807011181-9 EXHIBIT A The land referred to is situated in the County of San Diego, City of Carlsbad, State of California, and is described as follows: PARCEL 2 OF CERTIFICATE OF COMPLIANCE RECORDED APRIL 15,2003 AS INSTRUMENT NO. 2003-0434038 OF OFFICIAL RECORDS, DESCRIBED AS FOLLOWS: BEING PORIIONS OF: THE NORTHWEST QUARTER OF THE SOUTHWEST QUARTER, ALONG WITH THE NORTHEAST QUARTER OF ME SOUTHWEST QUARTER; ALONG WllH THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER, ALL OF SECTION 18, TOWNSHIP 12 SOUTH, RANGE 3 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA. ALSO, LOT 2, SECTION 13 TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA. ALSO SECTION 13, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN AND SECTION 18, TOWNSHIP 12 SOUTH, RANGE 3 WEST, SAN BERNARDINO MERIDIAN, IN THE CllY OF CARLSBAD, COUNN OF SAN DIEGO, STATE OF CALIFORNIA. BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHWEST CORNER OF RECORD OF SURVEY MAP NO. 9112, FILED IN THE OFRCEOF THECOUNTY RECORDER OF SAID COUNTY ON AUGUST S, 1982, SAID CORNER ALSO BEING THE NORTHWEST CORNER OF THE LAND DESCRIBED IN CERTIFICATE OF COMPLIANCE RECORDED IN THE OFFICE OF THE COUNTY RECORDER JULY 9,1987 AS FILE NO. 87-385112; THENCE ALONG THE WESTERLY LINE THEREOF SOUTH 02’37‘50” EAST 384.39 FEET (REC. SOUTH 2’ 36’ 40” EAST 384.39 FEET) TO A POINT ON THE NORTHERLY LINE OF PALOMAR (REC. SOUTH 2O 38’ 00’ EAST 28.51 FEET) TO A POINT ON THE CENTERLINE OF SAID PALOMAR AIRPORT ROAD, SAID POINT BEING ON THE ARC OF A NON-TANGENT 1200.00 FOOT RADIUS CURVE, CONCAVE SOUTHERLY, A RADIAL LINE TO SAID POINT BEARS NORTH 02’ 05‘ 57”EAST; AIRPORT ROAD PER ROAD SURVEY NO. 757; THENCE SOUTH 03’ 57’ 38’ EAST 29.07 F€ET THENCE LEAVING SAID WESTERLY LINE, EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 20° 09‘ 51” A DISTANCE OF 422.32 FEET (REC. DELTA =20° 13’ 34‘, L = 423.62 FEET); THENCE SOUTH 67’ 44‘12” EAST 1328.80 FEET (REC. SOUTH 67” 43‘ 22” EAST 1328.80 FEET) TO THE BEGINNING OF A 1000.00 FOOT RADIUS CURVE, CONCAVE NORTHERLY; ORDER NO. : 2807011181-9 THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 03O 10' 28" A DISTANCE OF 55.40 FEET (REC. DELTA = 3O0932", L -55.13 FEET) TO A POINT ON ME ARC OF A NON-TANGENT 2263.00 FOOT RADIUS CURVE, CONCAVE NORTHERLY, A RADIAL LINE TO SAID POINT BEARS SOUTH 08O 32' 51" WEST; THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE 'OF 16O 16' 12" A DISTANCE OF 642.61 FEET (REC. DELTA = 16' 17' 25", L = 643.41 FEET) TO A POINT RADIAL LINE TO SAID POINT BEARS SOUTH 18' 15' 50" EAST; ON ME ARC OF A NON-TANGENT 1000.00 FOOT RADIUS CURVE, CONCAVE, NORTHERLY, A THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 03O 10'28"A DISTANCE OF 55.40 FEET (REC. DELTA = 3O 09' 32"' L = 55.13 FEET); THENCE NORTH 68O 3342" EAST 1525.40 FEET (REC. NORTH 68' 33' 29" EAST 1525.56 FEET) TO THE BEGINNING OF A 6000.00 FOOT RADIUS CURVE, CONCAVE SOUTHERLY; THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 05O 38' 02'A DISTANCE OF 589.98 FEET (REC. DELTA = 5"39' 05", L = 591.81 FEET); THENCE NORTH 74O 11' 44" EAST 455.68 FEET (REC. NORTH 74O 12' 34" EAST 454.40 FEET) TO THE BEGINNING OF A 3000.00 FOOT RADIUS CURVE, CONCAVE SOUTHERLY; THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 00' 54' 29" A DISTANCE OF 47.55 FEET (REC. DELTA Oo 52' 58''1 L = 46.22 FEW; THENCE, LEAVING SAID CENTERLINE NON-TANGENT TO SAID CURVE, NORTH OOo 39/33" EAST 75.60 FEET (REC. NORTH Oo 39' 50" EAST 76.25 FEET) TO THE NORTHEAST CORNER OF SAID RECORD OF SURVEY MAP NO. 9112 AND SAID CERXFICATE OF COMPLIANCE: THENCE, WESTERLY ALONG THE NORTHERLY LINE OF SAID RECORD OF SURVEY AND SAID CERTIFICATE OF COMPLIANCE, NORTH 89O 27' 44" WEST 693.38 FEET; THENCE, LEAVING SAID LINE, SOUTH 69O 45'42" WEST 36.67 FEET; THENCE SOUTH 89O33'45" WEST 1352.59 FEET; THENCE NORM 45O 03' 52" WEST 31.06 FEET; THENCE SOUTH 89O51'45" WEST 775.37 FEET; THENCE NORTH 52O 02' 02" WEST 38.57 FEET TO A POINT ON THE NORTHERLY LINE OF SAID RECORD OF SURVEY MAP NO. 9112; THENCE, ALONG SAID LINE, NORTH 89O 27' 44" WEST 72.88 FEET; THENCE, LEAVING SAID LINE, SOUTH 09' 28' 07" WEST 30.44 FEET; THENCE SOUTH 63O 00'42' WEST 42.69 FEET; THENCE NORTH 86O 20' 04" WEST 868.30 FEET, THENCE SOUTH 61° 23' 57" WEST 52.32 FEET; I’ ORDER NO. : 2807011181-9 THENCE NORTH 86O 47‘ 02” WEST 620.41 FEET; THENCE NORTH 40° 35’ 39” WEST 21.66 FEET; THENCE NORM 70” 29’ 29” WEST 131.18 FEET; THENCE NORTH 19O 30’ 31” EAST 105.80 FEET; THENCE NORM 57O 27‘ 22 WEST 158.63 FEET; THENCE SOUTH 87O 22’ 10” WEST 87.11 FEET TO THE WESTERLY LINE OF SAID LOT 2; THENCE, SOUTHERLY ALONG SAID WESTERLY LINE, SOUTH 02’ 37‘ 50” EAST 233.16 FEET TO THE POINT OF BEGINNING. EXCEPTING THEREFROM ONE-HALF OF ALL MINERALS IN, ON OR UNDER SAID LAND AS RESERVED BY BURTON D. HIGHTOWER, A WIDOWER, IN DEED RECORDED MAY 19,1959 IN BOOK 7669 PAGE 361 OF OFFICIAL RECORDS. EXHIBIT B METHODOLOGY OF COST ALLOCATION 6/4/04 4083.2 H&O: #5344 v9 Property Owners: EXHIBIT B METHODOLOGY OF COST ALLOCATION (Faraday Avenue) Allocation to Contributina ProDerties Palomar Raceway Carlsbad Total Forum Oaks North 1. Core Improvements (Inside Lanes and County Frontage) Spread on Percentage of Pad Area Pad Area in Acreage 44.50 73.00 129.80 247.30 Fair Share of Estimated Core Improvements Percentage of Total Pad Area 17.99% 29.52% 52.49% 100.00% $2,003,805 $3,287,14 1 $5,844,805 $1 1 ,I 35,751 ('I 2. Frontage Improvements (Outside Lanes) Spread Directly to Each Property Owner Direct Share of Estimated Frontage Improvements $0 $0 $4,734,035 $4,734,035 (2) Total Estimated Cost of Faraday Avenue $2,003,805 $3,287,141 $10,578,840 $15,869,786 3. Functionally Equivalent Improvements If the District is not formed, Property Owner's Fare Share contribution towards Functionally Equivalent Improvements shall be determined by the City Council based upon he Project's proportionate share of the costs of the Fundionally Equivalent Improvements determined based upon the traffic generation characteristics of the benefiting projects. The City Council's determination shall be final. Note: (1) The total estimated cost of the core improvements does not take into account federal funds which may be made available, the benefit of which would be allocated to each property based on the percentage allocation of the core improvement costs. Note: (2) Carlsbad Oaks North is the only property with Faraday Avenue Frontage. May 24,2004 STATE OF CALIFORNIA ) ) ss. COUNTY OF G6 ) On fON6 q, h D4 before me, L 1 S& Ap/Rj E/gOVif/, a notary public <n and foI/said State, personally appeared , personally known to me (or proved to me on the basis of satisfahory evidence) to be the person(s) whose name(s) idare subscribed to the 1 AAf.L.r&tJ within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WTNESS my hand vd official seal. Signature STATE OF CALIFORNIA ) 1 ss. COUNTY OF 3~ Di~b On abw 51 GoOrc before me, MLl e , a notary public in and for said State, personally appeared 3 to be the person@) whose name(+ idam subscribed to the within instrument and acknowledged to me that hdfhelthey executed the same in hislkerkkclir authorized capacity@), and that by hidhedtkk signature(+ on the instrument the person@), or the entity upon behalf of which the person(+ acted, executed the instrument. e4ymm R. U?k.f+e~ , personally known to me WITNESS my handfld official seal. 6/4/04 4083.2 H&O: #5344 v9