HomeMy WebLinkAbout2013-01-08; City Council; Resolution 2013-006Exhibit 2
1 RESOLUTiON NO. 2013-006
2 A RESOLUTiON OF THE CiTY COUNCIL OF THE
CiTY OF CARLSBAD, CALIFORNIA, AUTHORIZING
3 THE MAYOR TO EXECUTE TWO PREPAYMENT
AGREEMENTS BETWEEN THE CITY OF CARLSBAD
AND PROPERTY DEVELOPMENT CENTERS, LLC
5 FOR TWO OF THE LA COSTA TOWN SQUARE
PROJECTS (CT 01 -09 & CT 08-03)
6 "
7
8 WHEREAS, the City of Carlsbad City Council has required that the funding of
9 Rancho Santa Fe Road and Olivenhain Road (Project) must be guaranteed before any
10 development takes place in the area bounded by Local Facilities Management Zones 11
11 and 12, and portions of Zone 6; and
12 WHEREAS, the Council has directed city staff to proceed with the formation of a
13 Community Facilities District (CFD No. 2) to finance the Project when needed; and
14 WHEREAS, the Council is willing to consider alternative financing proposals
15 during the period from the present to the formation date of CFD No. 2; and
16 WHEREAS, the Council finds that the guarantee provisions related to the Project
17 may be met through an interim financing program using an agreement between certain
18 property owners and the city whereby the property owner agrees to prepay his/her fair
19 share of costs associated with the Project; and ^
20 WHEREAS, Property Development Centers, LLC intends to build 24 commercial
21 lots in LFMZ 11 identified as CT 01-09 and 63 detached residential units in LFMZ 11
22 identified as CT 08-03; and
23 WHEREAS, the City Engineer has determined that, due to the size of the
24 residential development, there will be no major impact on the circulation system at the
25 present time if the development Is allowed to proceed; and,
26 WHEREAS, the Council finds that Property Development Centers, LLC may
27 enter into the attached Agreements to Pay Fair Share in satisfaction of their obligation
28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Exhibit 2
under the Project financing conditions; and
WHEREAS, two La Costa Town Square projects proposing to build up to 44
detached residential units in Local Facilities Management Zone (LFMZ) 11 identified as
MS 04-08 and 2 office lots containing a maximum of 60 airspace units in LFMZ 11
identified as CT 08-07 will be brought fonA/ard to Council separately for approval.
NOW THEREFORE BE IT RESOLVED by the City Council of the City of
Carlsbad, California, as follows:
1. That the above recitations are true and correct.
2. That the Mayor is hereby authorized to enter into the attached agreements
entitled "Petition, Waiver and Consent to Creation of a Community Facilities District and
Agreement to Pay Fair Share Cost of La Costa Town Square - Residential (CT 08-03)"
and "Petition, Waiver and Consent to Creation of a Community Facilities District and
Agreement to Pay Fair Share Cost of La Costa Town Square - Commercial (CT 01-09)"
between the City of Carlsbad and Property Development Centers, LLC.
c
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council
of the City of Carlsbad on the 8*^ day of January, 2013, by the following vote to wit:
AYES:
NOES:
Council Members Hall, Packard, Wood, Blackburn and Douglas.
None.
ABSENT: None.
MATT MALL, Mayor
ATTEST:
stant City Clerk
Exhibit 3
EXHIBIT 3
PETITION, WAIVER, AND CONSENT TO CREATION OF A COMMUNITY
FACILITIES DISTRICT AND AGREEMENT TO PAY FAIR SHARE COST OF LA
COSTA TOWN SQUARE - RESIDENTIAL (CT 08-03).
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City Cleric
CiTY OF CARLSBAD
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Space Above This Line for Recorder's Use
Assessor Parcel No. 223-050-74-00
PETITION, WAIVER AND CONSENT TO CREATION
OF A COMMUNITY FACILITIES DISTRICT
AND AGREEMENT TO PAY FAIR SHARE COST
OF LA COSTA TOWN SQUARE - RESIDENTIAL (CT 08-03) ("AGREEMENT")
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 La Costa Town Square - Residential (CT 08-03), which
consists of sixty-four (64) residential lots, (hereinafter referred to as the "Project"); and,
WHEREAS, the legal description for the Project is shown on Exhibit "A" attached
hereto and incorporated herein by reference; and,
WHEREAS, City has detennined this Project is located within the boundaries of a
proposed Community Facilities District known as Community Facilities District No. 2 -
Rancho Santa Fe and Olivenhain Road (hereinafter referred to as "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 proceed with processing prior to the
formation of District; and,
WHEREAS, Condition No. 30 of Planning Commission Resolution No. 6582 dated
July 15, 2009, recommending approval of Carlsbad Residential Tract Map No. 08-03 (CT
08-03), requires the developer to comply with all conditions and mitigation measures
required as part of Zone 11 Local Facilities Management Plan; and,
WHEREAS, pursuant to section 21.90.130 of the Municipal Code and pursuant to
Local Facilities Management Plan, Zone 11, development permits can not be issued until
the developer provides a financial guarantee towards its fair-share cost of improvements,
which for Zone 11, includes segments of Rancho Santa Fe Road; 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 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 Condition No. 30 of Planning Commission Resolution No. 6582 dated July 15,
2009, and as referenced in City Council Resolution No. 2009-232, and further delineated
in the Local Facilities Management Plan, Zone 11, 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,
WHEREAS, the City Council has detennined 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
the construction of Property Owner's fair share ofthe circulation improvements;
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 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 "Improvements") which are generally
described as follows:
a) Rancho Santa Fe Road North Phase 1 (RSF No.1) La Costa Avenue
to east of Mahr Reservoir
Olivenhain Road Widening, and intersection improvements at
Olivenhain and El Camino Real
c) Rancho Santa Fe Road North Phase 2 (RSF No. 2) Phase 1 End to
Melrose Drive.
d) Rancho Santa Fe Road South (RSF So.) (Assumes Secondarv
Arterial Standard - Encinitas Citv Boundarv to Olivenhain Road Full Improvements).
2. The cost of construction, engineering, environmental mitigations, legal and
other incidental expenses as set forth in the Improvements Budget will be funded by the
District, if formed, or by monies collected by the City for this purpose.
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," 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
3
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 consent to and
support 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 "B", Rate and Method for Determining Fair Share Obligation Rancho Santa Fe and
Olivenhain Road, which is incorporated herein by reference.
c) The amount of 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.
d) Payment by Property Owner of its fair share of improvement costs as
determined by City Council and set forth herein will satisfy their obligations for the
construction of the Improvements described in Section 1, as required by Condition No. 30
of Planning Commission Resolution No. 6582 dated July 15, 2009, and as referenced in
City Council Resolution No. 2009-232, and further delineated in the Local Facilities
Management Plan, Zone 11, subject to adjustment as described in Section 9 herein.
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 the Agreement 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 its right to challenge the amount,
establishment or imposition of said fair share and further waive 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 Project 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 seg.. or any
successor or related statutes.
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.
c) In the event that sufficient funds are not available from District's
resources, Property Owner shall be reimbursed, 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 include interest.
e) 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 fonnation 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.
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
OthenA/ise 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 #1 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 B, divided by the total number of EDUs constructed or to be
constructed within, and participating in, CFD #2 and/or CFD #2 agreements to prepay
taxes. The amount ofthe 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 who
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 parties
within the specified period, and ali 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 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 that
are entitled to refunds. 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 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. 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 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
8
against Property Owner and Property Owner's successors, heirs, assigns, and transferees
of the Project to secure compliance with this Agreement.
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 Owner's buildings, as a 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, assigns, 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:
Property Development Centers, LLC
Attn : Jim Reuter
5918 Stoneridge Mall Road
Pleasanton, CA 94588-3229
Notices to the City shall be delivered to:
Finance Director
City of Carlsbad
1635 Faraday Avenue
Carlsbad, CA 92008
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.
19. The undersigned Property Owner further states, under penalty of perjury,
that they are Owner of the property as described herein on Exhibit "A", or an authorized
agent of the Owner, and have the authority to execute this document, including the binding
authorizations herein.
(Remainder of Page Intentionally Left Blank)
10
PROPERTY OWNER
Property Development Centers LLC,
A Delaware Limited liability
*By:
Safeway Inc., a Delaware corporation,
its sole member
CITY OF CARLSBAD, a municipal
corporation of the State of California
By:
(sign here)
/\\lHUv^Kj l^<^^s^^/Assistant Vice President
(print name/title)
(e-mail address)
ATTEST:
City Clerk
(sign here)
5-to03i J bou /Assistant Secretary
(print name/title)
(e-mail address)
^ ov*. viRE*.
If required by City, proper notary acknowledgment of execution by contractor must be
attached. If a Corporation. Agreement must be signed by one corporate officer from each
of the following two groups.
*Group A. **Group B.
Chairman, Secretary,
President, or Assistant Secretary,
Vice-President CFO or Assistant Treasurer
Otiierwise, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
RONALD R. BALL, City Attorney
Assistant City Attorney
11
ACKNOWLEDGEMENT
State of Califomia )
)
County of Alameda )
ss
On September 27, 2012, before me, Dina Gutierrez, Notary Public, personally appeared
Marilyn K. Beardsley and Steven J. Gouig, who proved to me on the basis of satisfactory
evidence to be the persons whose names are subscribed to the within instrument and
acknowledged to me that they executed the same in their authorized capacities and that
by their signatures on the instrument the persons, or the entity upon behalf of which the
persons acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws ofthe State of Califomia that
the foregoing paragraph is tme and correct.
WITNESS my hand and official seal.
Signature
DINA GUTIERREZ
COMM.«1889946
NOTARY PUBUC • CAUFORNIA
MAMEOA COUNTY
MY COMM. EXP. MAY 18, 2014
Seal
EXHIBIT "A"
LEGAL DESCRIPTION
Real Property in the City of Carlsbad, County of San Diego, State of California, more
particularly described as follows:
Parcel 4 of City of Carlsbad Minor Subdivision No. 08-04 recorded by the County Recorder
of the County of San Diego on July 11, 2012 as Parcel Map No. 20982.
(Remainder of Page Intentionally Left Blank)
EXHIBIT "B"
RATE AND METHOD FOR DETERMINING
FAIR SHARE OBLIGATION
RANCHO SANTA FE AND OLIVENHAIN ROADS
The City Council shall use the following rate and method for determining the fair share
obligation for funding the construction of Rancho Santa Fe and Olivenhain Roads 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 owner 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 owner intent to form CFD No. 2 to provide funding for those improvements
described within the 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 Eguivalent Dwelling Units
Single Family - Detached Units 1.0 EDU
Single Family - Attached Units 0.8 EDU
Multi-Family Units 0.6 EDU
Churches 4.0 EDU per Acre
Commercial/Industrial and other 10.0 EDU per Acre
The numberof 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 approval.
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 detemiination 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 fair share amount, as previously determined by the City Council, was $10,250 for
each EDU. On June 23, 2009, through Resolution No. 2009-154, City Council approved a
partial refund of the fair share amount totaling $2,850 for each EDU to property owners
who satisfied their fair share obligation prior to June 23, 2009. As a result, the fair share
amount is now assessed at $7,400 for each EDU.
The City shall collect $7,400 for each EDU as determined by the City Council. This
amount shall be collected in one payment of $7,400 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 $7,400. 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.
Computation of Fair Share Obligation
La Costa Town Square
Parcel CT No. Type of Unit EDU
Cost per
EDU Amount Due
1 N/A Single Family
Detached Units 44.0 $7,400 $325,600
2 CT 01-09 Commercial 333.5 $7,400 $2,467,900
3 CT 08-07 Office 63.2 $7,400 $467,680
4 CT 08-03 Single Family
Detached Units 63.0 $7,400 $466,200
Total $3,727,380
2) If the property owner has already obtained a final map for units conditioned with the
financing of Rancho 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.
SAFEWAY INC.
(a Delaware corporation)
RESOLVED: That the Chairman of the Board of Directors or the
President or any Vice President of this Corporation, acting singly, or any Assistant Vice
President of this Corporation, acting jointly with the Secretary or any Assistant Secretary,
be and they are hereby authorized to purchase, sell, transfer, or lease real or personal
property, or any interest therein, in the name of, for and on behalf of, and as the act and
deed of this Corporation; and
RESOLVED: That the Chairman of the Board of Directors or the
President or any Vice President of this Corporation, acting singly, or any Assistant Vice
President of this Corporation, acting jointly with the Secretary or any Assistant Secretary,
be and they are hereby authorized to execute and deliver in the name of, for and on behalf
of, and as the act and deed of this Corporation, any and all deeds, covenants, leases,
subleases, contracts, promissory notes, mortgages, deeds of tmst, agreements, indemnity
agreements, or other instmments reasonably required for the consummation or
completion of the purchase, sale, transfer, or lease of real or personal property or any
interest therein by this Corporation; and
RESOLVED: That the Secretary or any Assistant Secretary be and each of
them is hereby authorized to affix the corporate seal of this Corporation to, and to attest
the execution of all deeds, covenants, leases, subleases, indemnity agreements, or other
instmments which are executed by the Chairman of the Board of Directors, the President
or any Vice President or any Assistant Vice President of this Corporation in connection
with the purchase, sale, transfer or lease of real or personal property or any interest
therein; and
RESOLVED: That the actions of said Officers heretofore taken with
respect to transactions in real or personal property on behalf of this Corporation are
hereby ratified and confinned.
CERTIFICATE
I, DENISE ROMAN, an Assistant Secretary of Safeway Inc., a Delaware
corporation (the "company"), hereby CERTIFY that (1) the foregoing is a true and correct
copy of a resolution approved and adopted by the Board of Directors of Safeway Inc., at a
meeting duly held and at which a quomm was at all times present and acting on
December 8, 1986; (2) that said resolution is in full force and effect on the date hereof
and has not been amended or rescinded; (3) that Marilyn K. Beardsley and Steven J.
Gouig as Assistant Vice President and Assistant Secretary are authorized to execute
documents and bind the Company.
Dated: September 27, 2012
Denise Roman
Its Assistant Secretary
SAFEWAY INC.
RESOLUTIONS ADOPTED BY THE
SOLE MEMBER OF
PROPERTY DEVELOPMENT CENTERS LLC
TAKEN WITHOUT A MEETING BY WRITTEN CONSENT
The following actions are taken by the Sole Member of Property Development Centers
LLC, a Delaware limited liability company (the "Company"), by written consent without a
meeting as of k>^A^ ^ . 2009, pursuant to its Limited Liability Company Agreement and
as permitted by Section 18-302(d) of the Delaware Limited Liability Company Act.
Election of QtTicers
RESOLVED, tliat David Moreno is hereby elected to the office of Vice
President of the Company, to serve as such at the pleasure ofthe Sole Member.
RESOLVED, that Jim Reuter is hereby elected to the office of Vice
President of the Company, to serve as such at the pleasure ofthe Sole Member.
RESOLVED, that Jon Anderson is hereby elected to the office of Vice
President ofthe Company, to serve as such at the pleasure ofthe Sole Member.
The undersigned, being the Sole Member of the Company, does hereby consent to the
foregoing actions as ofthe date first written above.
SOLE MEMBER
Safeway Inc.
a Delaware corporation
By:
Robert A. Gordon
Senior Vice President & Secretar>'
G .N'lomi n4(wiijlctVSub«di4ii<s''Piop Dev Ctiiicii l.tORcsos'Ron S 2W> di,K
ACTION BY WRITTEN CONSENT OF THE SOLE MEMBER
; IN LIEU OF ORGANIZATIONAL MEETING
PROPERTY DEVELOPMENT CENTERS LLC
The following actions are taken by the Sole Member of PROPERTY DEVELOPMENT
CENTERS LLC, a Delaware limited liability company (the "Company"), by written consent
without a meeting as of September:^, 2008, pursuant to its Limited Liability Company
Agreement and as permitted by Section 18-3 02(d) of the Delaware Limited Liability Company
Act.
1. Appointment of Officers.
RESOLVED, that the persons listed in Exhibit A hereto are hereby elected and
designated as all of the officers of the Company, in the capacity and with the designation shown
after each person's name, to serve as such at the pleasure of the Sole Member.
2. Certificate of Formation.
RESOLVED, that any officer of the Company is hereby authorized and instmcted to
insert in the records of the Company a copy of the Company's Certificate of Formation as filed
with the Delaware Secretary of State.
3. Adoption of Operating Agreement.
RESOLVED, that the Limited Liability Company Agreement attached to these
resolutions as Exhibit B is hereby ratified, approved and adopted as the Limited Liability
Company Agreement of the Company.
RESOLVED FURTHER, that any officer of the Company is authorized and directed to
see that a copy of the Limited Liability Company Agreement is kept at the Company's office for
the maintenance of records.
4. Principal Place of Business.
RESOLVED, that the principal place of business of the Company shall be located at 5918
Stoneridge Mall Road, Pleasanton, CA 94588.
G:\Naomi Bannister\Subsidiaries\Prop Dev Centers LLC\Resos\Formation 08.20O8.doc
5. Expenses of Organization.
RESOLVED, that subject to the Limited Liability Agreement, the Sole Member and
officers are, and each acting alone is, hereby authorized and directed to pay on behalf of the
Company the expenses of the organization of the Company and to reimburse the persons
advancing funds for the Company for this purpose.
6. Approval of Qualifications to Conduct Business.
RESOLVED, that the appropriate officers of the Company be, and each such officer
hereby is, authorized and directed to take any and all steps that they deem to be necessary to
qualify the Company to do business as a foreign corporation in Arizona, Califomia, Hawaii and
Washington and in each other state that the officers determine such qualification to be necessary
or appropriate.
7. Omnibus Resolutions.
RESOLVED, that the appropriate officers of the Company be, and each such officer
hereby is, authorized and directed, for and on behalf of the Company and in its name, to prepare
or cause to be prepared and to execute, deliver, verify, acknowledge, file or record any
documents, instruments, certificates, statements, papers or any amendments thereto, as may be
deemed necessary or advisable in order to perform and carry out the transactions contemplated
by the foregoing resolutions.
RESOLVED FURTHER, that the authority and power given herein be deemed
retroactive, and any and all acts performed prior hereto with the same purpose and intent
contemplated by the foregoing resolutions are hereby ratified and approved.
The undersigned, being the Sole Member of the Company, does hereby consent to the
foregoing actions as of the date first written above.
SOLE MEMBER
SAFEWAY INC.
By:
Robert A. Gordon
Its: Senior Vice President and Secretary
G:\Naomi Bannistei\Subsidiaries\Prop Dev Centers LLC\Resos\Formation 08.2008.doc
PROPERTY DEVELOPMENT CENTERS LLC
SOLE MEMBER
Safeway Inc.
OFFICERS
Don Wright
David Zylstra
Robert A. Gordon
Michael J. Boylan
Bradley S. Fox
Tom Hanavan
Don Shaw
Gerry Wolfe
Marilyn K. Beardsley
Sharman K. Braff
Laura A. Donald
Genevieve Dougherty
Ann C. Elliott
Karen Elliott
Steven J. Gouig
Linda S. MacDonald
Wendall Mitchell
Denise M. Roman
Dennis M. Stokely
Dana Waller
Robin H. Knight
Chief Executive Officer
Chief Operating Officer
Vice President & Secretary
Vice President
Vice President & Treasurer
Vice President
Vice President
Vice President
Assistant Vice President & Assistant Secretary
Assistant Vice President & Assistant Secretary
Assistant Vice President & Assistant Secretary
Assistant Vice President & Assistant Secretary
Assistant Vice President & Assistant Secretary
Assistant Vice President & Assistant Secretary
Assistant Vice President & Assistant Secretary
Assistant Vice President & Assistant Secretary
Assistant Vice President & Assistant Secretary
Assistant Vice President & Assistant Secretary
Assistant Vice President & Assistant Secretary
Assistant Vice President & Assistant Secretary
Assistant Vice President & Assistant Treasurer
EXHIBIT A
A PROPERTY DEVELOPMENT CENTERS LLC
LIMITED LIABILITY COMPANY AGREEMENT
This LIMITED LIABILITY COMPANY AGREEMENT (this "Agreement") of
PROPERTY DEVELOPMENT CENTERS LLC (the "Company") is effective as of August 19,
2008.
1 ynrmatinn of Li-"'"^ l i«hi"tv Company. Safeway Inc., a Delaware
corporation (the "IniMJlmbs"). hereby forms the Company as a limited Uability company
p—tto the provisions of the Delaware General Corporation Law and Del^T^^ Lmuted
LS Company Act (the "Act")- The rights and obUgations ofthe Manber as defined below
iS^Stion L tei^nation of the Company shall be gov^ed by ^J^^^'^^
Z Art This Aereement shall be considered the "Limited Liabihty Company Agreement ofthe
Sr^l^to rmlZg of the Act. To the extent this Agreement is inco—t m any
?ir^th the Act, Uus Agreement shall control to the extent pemutted by the Act.
2 Member. The member (the "Member") who shaH act as the sole and
managing member ofthe Company shall be the Initial Member.
3 Purpose. The purpose of the Company is to engage in any and all lawful
businesses or activities m which a limited liability company may be engaged under apphcable
v_J' law (including, without limitation, the Act).
4. Name. The naine of the Company shall be "PROPERTY
DEVELOPMENT CENTERS LLC."
5 P.fri^.r^d Agent Prinrii^al Office. The registered office and
r^oiotered aaent of the Company in L State of Delaware shall be as the Member may designate
from Se'ftoe Company may have such oilier offices as Ae Member may designate
S toe toTme. TTie mdling address of the Company is 5918 Stonendge MaU Road,
Pleasanton, CA 94588-3229.
6 Term of Company. The Company shall commence on ttie date ttiat a
Certificate of Formation is properly filed witti ttie Secretary of State of ttie State of Delaware and
S c^i re^stence'inVietuity unless its business and affairs are earlier wound up
following dissolution at such time as ttiis Agreement may specify.
7 A,.thnri7.ed Person. Naomi K. Bamiister is hereby desi^ated as an
authorized person on behalf of ttie Member wittiin ttie meaning of tiie Act, and shall have ttie
aX; to execute, deliver file ttie Certificate of Formation^f J^^-P-y
™itV, the Secretary of State of ttie State of Delaware. Upon ttie fihng of ttie Certilicate oi
^IML to ppers as autiiorized person shall cease and ttie Member ttiereupon shall become
S:S£aIXd person and shall continue as tiie designated autiiorized person witiim
) the meaning of the Act.
EXHIBIT ^ -
)
8. Management of Companv. All decisions relating to the business, affairs
and properties of the Company shall be made by tiie Member in its capacity as the managing
member. The Member may appoint a President and one or more Vice Presidents and such other
officers ofthe Company as the Member may deem necessary or advisable to manage the day-to-
day business affairs of tiie Company (tiie "Office"). The Officers shall serve at tiie pleasure of
the Member. To the extent delegated by the Member, tiie Officers shall have the authority to act
on behalf of, bind and execute and deliver documents in the name and on behalf of the Company.
No such delegation shall cause the Member to cease to be a Member. Such Officers shall have
such authority and responsibility as is generally attributable to tiie holders of such offices in
corporations incorporated under the laws of Delaware. Notwitiistanding any other provisions of
this Agreement, the Member, acting alone, is authorized to execute and deliver any document on
behalf of the Company without any vote or consent of any other person.
9. Distributions. Each distribution of cash or other property by tiie Company
shall be made 100% to tiae Member. Each item of income, gain, loss, deduction and credit ofthe
Company shall be allocated 100% to tiie Member.
10. Contributions. The Member has contributed capital to the Company in the
amounts reflected on the books and records of tiie Company. The Member may not be required
to contribute any additional capital witiiout the Member's consent.
11. Capital Accoimts. A capital accoimt shall be maintained for the Member
in accordance witii Treasury Regulations Section 1.704-l(b)(2)(iv).
12. Indemnification. The Company shall indenmify and hold harmless the
Member to the full extent permitted by law firom and against any and all losses, claims, demands,
costs, damages, liabilities, expenses of any nature (including attorneys' fees and disbursements),
judgments, fimes, settiements and other amounts (collectively, "Costs") arising firom any and all
claims, demands, actions, suits or proceedings (civil, criminal, administrative or investigative)
(collectively, "Actions") in which tiie Member may be involved, or threatened to be involved as
a party or otherwise, relating to tiie performance or nonperformance of any act conceming the
activities of tiie Company, hi addition, to tiie extent pennitted by law, the Company shall
indemnify and hold harmless any of its Officers firom and agakist any and all Costs arising firom
any or all Actions arising in connection with the business ofthe Company or by virtue of such
Officer's capacity as an officer of tiie Company. Notwitiistanding the foregoing, any and all
indemnification obligations of the Company shall be satisfied only from tiie assets of tiie
Company, and the Member shall have no liability or responsibility therefor.
13. Dissolution and Winding Up. Upon execution by tiie Member of a written
instrument authorizing the dissolution of tiie Company, the Company shall dissolve and its
business and affairs shall be wound up.
14. Amendments. This Agreement may be amended or modified firom tune to
time only by a written mstrument executed by tiie Member.
G:VNaomi Bannistei\Subsidiiries\Prop Dev Centers LLCVPropDevCentersLLC Agreement.doc
15 Governing Law. The validity and enforceability of this Agreement shall
be govemed by and constmed in accordance witii tiie laws of tiie State of Delaware witiiout
regard to otiierwise governing principles of conflicts of law.
IN WITNESS WHEREOF, tiie parties hereto have duly executed this Limited
Liability Company Agreement as of the date first set forth above.
SOLE AND MANAGING MEMBER
SAFEWAY INC.
Robert A. Gordon
Its: Senior Vice President and Secretary
GANaomi Barni$ter\Subsidiaries\Prop Dev Centers LLCVPropDevCentersLLC Agreement.doc
Exhibit 4
EXHIBIT 4
PETITION, WAIVER, AND CONSENT TO CREATION OF A COMMUNITY
FACILITIES DISTRICT AND AGREEMENT TO PAY FAIR SHARE COST OF LA
COSTA TOWN SQUARE - COMMERCIAL (CT 01-09).
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City Cleric
CiTY OF CARLSBAD
1200 Carlsbad Village Drive
Carisbad, CA 92008
Space Above This Line for Rer.nrripr'<i i leo
Assessor Parcel No. 223-050-72-00
PETITION. WAIVER AND CONSENT TO CREATION
OF A COMMUNITY FACILITIES DISTRICT
AND AGREEMENT TO PAY FAIR SHARE COST
OF LA COSTA TOWN SQUARE - COMMERCIAL (CT 01-09) ("AGREEMENT")
WHEREAS, the undersigned Property Owner at this time is processing for
development with the City of Carisbad (hereinafter referred to as "City") a development
project known and identified as La Costa Town Square - Commercial (CT 01-09), which
consists of twenty-four (24) lots, (hereinafter referred to as the "Project"); and,
WHEREAS, the legal description for the Project is shown on Exhibit "A" attached
hereto and incorporated herein by reference; and.
WHEREAS, City has detennined this Project is located within the boundaries of a
proposed Community Facilities District known as Community Facilities District No. 2 -
Rancho Santa Fe and Olivenhain Road (hereinafter referred to as "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 proceed with processing prior to the
formation of District; and,
WHEREAS, Condition No. 27 ofPlanning Commission Resolution No. 6581 dated
July 15, 2009, recommending approval of Carisbad Residential Tract Map No. 01-09 (CT
01-09), requires the developer to comply with all conditions and mitigation measures
required as part of Zone 11 Local Facilities Management Plan; and,
WHEREAS, pursuant to section 21.90.130 of the Municipal Code and pursuant to
Local Facilities Management Plan, Zone 11, development permits can not be issued until
the developer provides a financial guarantee towards its fair-share cost of improvements,
which for Zone 11, Includes segments of Rancho Santa Fe Road; 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 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 ofthe fair share described herein, has met the requirement
set forth in Condition No. 27 of Planning Commission Resolution No. 6581 dated July 15,
2009, and as referenced in City Council Resolution No. 2009-232, and further delineated
in the Local Facilities Management Plan, Zone 11, 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.
WHEREAS, the City Council has detennined 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
the construction of Property Owner's fair share of the circulation improvements;
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 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 "Improvements") which are generally
described as follows:
a) Rancho Santa Fe Road North Phase 1 (RSF No.D La Costa Avenue
to east of Mahr Reservoir
b) Olivenhain Road Widening, and intersection improvements at
Olivenhain and El Camino Real
c) Rancho Santa Fe Road North Phase 2 (RSF No. 2) Phase 1 End to
Melrose Drive.
Rancho Santa Fe Road South (RSF So.) (Assumes Secondarv
Arterial Standard - Encinitas Citv Boundarv to Olivenhain Road Full Improvements).
2. The cost of construction, engineering, environmental mitigations, legal and
other incidental expenses as set forth in the Improvements Budget will be funded by the
District, if formed, or by monies collected by the City for this purpose.
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," 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
3
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 consent to and
support 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 "B", Rate and Method for Determining Fair Share Obligation Rancho Santa Fe and
Olivenhain Road, which is incorporated herein by reference.
c) The amount of 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.
d) Payment by Property Owner of its fair share of improvement costs as
determined by City Council and set forth herein will satisfy their obligations for the
construction ofthe Improvements described in Section 1, as required by Condition No. 27
of Planning Commission Resolution No. 6581 dated July 15, 2009, and as referenced in
City Council Resolution No. 2009-232, and further delineated in the Local Facilities
Management Plan, Zone 11, subject to adjustment as described in Section 9 herein.
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 the Agreement 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
Carisbad 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 its right to challenge the amount,
establishment or imposition of said fair share and further waive 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 Project 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 seg.. or any
successor or related statutes.
9. a) If the District is fonned 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.
c) In the event that sufficient funds are not available from District's
resources. Property Owner shall be reimbursed, 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 include interest.
e) 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.
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 ali
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 detennined 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
OthenA/ise 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 #1 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 B, divided by the total number of EDUs constructed or to be
constructed within, and participating in, CFD #2 and/or CFD #2 agreements 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 who
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 parties
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 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 that
are entitled to refunds. 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 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 Carisbad 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. 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 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
8
against Property Owner and Property Owner's successors, heirs, assigns, and transferees
of the Project to secure compliance with this Agreement.
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 Owner's buildings, as a 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, assigns, 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:
Property Development Centers, LLC
Attn : Jim Reuter
5918 Stoneridge Mall Road
Pleasanton, CA 94588-3229
Notices to the City shall be delivered to:
Finance Director
City of Carisbad
1635 Faraday Avenue
Carisbad, CA 92008
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.
19. The undersigned Property Owner further states, under penalty of perjury,
that they are Owner of the property as described herein on Exhibit "A", or an authorized
agent of the Owner, and have the authority to execute this document, including the binding
authorizations herein.
(Remainder of Page Intentionally Left Blank)
10
PROPERTY OWNER
Property Development Centers LLC,
A Delaware Limited liability
*By:
Safeway Inc., a Delaware corporation,
its sole member
*By:
CITY OF CARLSBAD, a municipal
corporation of the State of Califomia
By:
0 (sign here)
/i^/tTU^yv/ 6an>\stf£y /Assistant Vice President
(print name/title)
(e-mail address)
ATTEST:
City Clerk
here)
3. Lsxyj j'^ /Assistant Secreta ry
(pnnt name/title) ~
(e-mail address)
'VT'lflx^^^^'*^' "^^^"^ acknowledgment of execution by contractor must be
attached If a Corporation. Agreement must be signed by one corporate officer from each
of the following two groups.
*GroupA. **GroupB.
Chairman, Secretary.
President, or Assistant Secretary,
Vice-President CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
RONALD.Ji-=BAt:t!^ity Attorney
Ity Attorney
11
ACKNOWLEDGEMENT
State of Califomia )
)
County of Alameda )
ss
On September 27, 2012, before me, Dina Gutierrez, Notary Public, personally appeared
Marilyn K. Beardsley and Steven J. Gouig, who proved to me on the basis of satisfactory
evidence to be the persons whose names are subscribed to the within instmment and
acknowledged to me that they executed the same in their authorized capacities and that
by their signatures on the instmment the persons, or the entity upon behalf of which the
persons acted, executed the instmment.
I certify under PENALTY OF PERJURY under the laws ofthe State of Califomia that
the foregoing paragraph is tme and correct.
WITNESS my hand and official seal.
Signature
DINA GUTIERREZ
COMM.«1689946
NOTARY PUfiUC • CAUFORNIA AlAMEDA COUMTY
MY COMM. EXP. MAY 18,2014
1
Seal
EXHIBIT "A"
LEGAL DESCRIPTION
Real Property in the City of Carisbad. County of San Diego. State of California more
particulariy described as follows:
Parcel 2 of City of Carisbad Minor Subdivision No. 08-04 recorded by the County Recorder
of the County of San Diego on July 11, 2012 as Parcel Map No. 20982.
(Remainder of Page Intentionally Left Blank)
EXHIBIT "B"
RATE AND METHOD FOR DETERMINING
FAIR SHARE OBLIGATION
RANCHO SANTA FE AND OLIVENHAIN ROADS
The City Council shall use the following rate and method for determining the fair share
obligation for funding the construction of Rancho Santa Fe and Olivenhain Roads 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 Carisbad
and certain property owner 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 owner intent to fomi CFD No. 2 to provide funding for those improvements
described within the 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 altemate 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 Eguivalent Dwelling Units
Single Family - Detached Units 1.0 EDU
Single Family - Attached Units 0.8 EDU
Multi-Family Units 0.6 EDU
Churches 4.0 EDU per Acre
Commercial/Industrial and other 10.0 EDU per Acre
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 approval.
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
deterrriination 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 fair share amount, as previously determined by the City Council, was $10,250 for
each EDU. On June 23. 2009, through Resolution No. 2009-154. City Council approved a
partial refund of the fair share amount totaling $2,850 for each EDU to property owners
who satisfied their fair share obligation prior to June 23, 2009. As a result, the fair share
amount is now assessed at $7,400 for each EDU.
The City shall collect $7,400 for each EDU as determined by the City Council. This
amount shall be collected in one payment of $7,400 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 $7,400. 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.
Computation of Fair Share Obligation
La Costa Town Square
Parcel CT No. Type of Unit EDU
Cost per
EDU Amount Due |
1 N/A Single Family
Detached Units 44.0 $7,400 $325,600
2 CT 01-09 Commercial 333.5 $7,400 $2,467,900
3 CT 08-07 Office 63.2 $7,400 $467,680
4 CT 08-03 Single Family
Detached Units 63.0 $7,400 $466,200
Total $3,727,380
2) If the property owner has already obtained a final map for units conditioned with the
financing of Rancho 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.
SAFEWAY INC.
(a Delaware corporation)
RESOLVED: That the Chairman of the Board of Directors or the
President or any Vice President of this Corporation, acting singly, or any Assistant Vice
President of this Corporation, acting jointly with the Secretary or any Assistant Secretary
be and they are hereby authorized to purchase, sell, transfer, or lease real or personal
property or any interest therein, in the name of, for and on behalf of, and as the act and
deed of this Corporation; and
RESOLVED: That the Chairman of the Board of Directors or the
President or any Vice President of this Corporation, acting singly, or any Assistant Vice
President of this Corporation, acting jointiy with the Secretary or any Assistant Secretary
be and they are hereby authorized to execute and deliver in the name of, for and on behalf
of and as the act and deed of this Corporation, any and all deeds, covenants leases
subleases, contracts, promissory notes, mortgages, deeds of tmst, agreements, indemnity
agreements, or other instmments reasonably required for the consummation or
completion of the purchase, sale, transfer, or lease of real or personal property or anv
interest therein by this Corporation; and
RESOLVED: That the Secretary or any Assistant Secretary be and each of
them IS hereby authorized to affix the corporate seal of this Corporation to, and to attest
the execution of all deeds, covenants, leases, subleases, indemnity agreements or other
instmments which are executed by the Chairman ofthe Board of Directors, the President
or any Vice President or any Assistant Vice President of this Corporation in connection
with the purchase, sale, transfer or lease of real or personal property or anv interest
therein; and
RESOLVED: That the actions of said Officers heretofore taken with
respect to transactions in real or personal property on behalf of this Corporation are
hereby ratified and confirmed.
CERTIFICATE
I, DENISE ROMAN, an Assistant Secretary of Safeway Inc., a Delaware
corporation (the "company"), hereby CERTIFY that (1) the foregoing is a true and correct
copy of a resolution approved and adopted by the Board of Directors of Safeway Inc., at a
meeting duly held and at which a quomm was at all times present and acting on
December 8, 1986; (2) that said resolution is in full force and effect on the date hereof
and has not been amended or rescinded; (3) that Marilyn K. Beardsley and Steven J.
Gouig as Assistant Vice President and Assistant Secretary are authorized to execute
documents and bind the Company.
Dated: September 27, 2012
Ddnise Roman
Its Assistant Secretary
SAFEWAY INC.
a
RESOLUTIONS ADOPTED BY THE
SOLE MEMBER OF
PROPERTY DEVELOPMENT CENTERS LLC
TAKEN WITHOUT A MEETING BY WRITTEN CONSENT
The following actions are taken by the Sole Member of Property Development Centers
LLC, a Delaware limited liability company (tiie "Company"), by written consent without
meeting as of hf^^ ^ , 2009, pursuant to its Limited Liability Company Agreement and
as permitted by Section 18.302(d) ofthe Delaware Limited Liability Company Act.
Election of Officers
RESOLVED, that David Moreno is hereby elected to the office of Vice
President ofthe Company, to serve as such at the pleasure ofthe Sole Member.
RESOLVED, that Jim Reuter is hereby elected to the office of Vice
President of tiie Company, to serve as such at the pleasure ofthe Sole Member.
RESOLVED, tiiat Jon Anderson is hereby elected to the office of Vice
President ofthe Company, to serve as such at the pleasure ofthe Sole Member.
The undersigned, being the Sole Member ofthe Company, does hereby consent to the
foregoing actions as ofthe date first written above.
SOLE MEMBER
Safeway Inc.
a Delaware corporation
By:
Robert A. Gordon
Senior Vice President & Secretary
G'Naomi B.)fn»iJerVSuhH<Ji4i(es'iPr(;>p Dev Cenfcrs l.I..rRcsos'.Re>i) S ^CW ikx
^ ACTION BY WRITTEN CONSENT OF THE SOLE MEMBER
) IN LIEU OF ORGANIZATIONAL MEETING
PROPERTY DEVELOPMENT CENTERS LLC
The following actions are taken by tiie Sole Member of PROPERTY DEVELOPMENT
CENTERS LLC, a Delaware limited liability company (the "Company"), by written consent
without a meeting as of September;^ 2008, pursuant to its Limited Liability Company
Agreement and as permitted by Section 18-3 02(d) ofthe Delaware Limited Liability Company
Act.
1. Appointment of Officers.
RESOLVED, that the persons listed in Exhibit A hereto are hereby elected and
designated as all ofthe officers of the Company, in the capacity and with the designation shown
afi:er each person's name, to serve as such at tiie pleasure ofthe Sole Member.
2. Certificate of Formation.
RESOLVED, that any officer of the Company is hereby autiiorized and instmcted to
insert in tiie records ofthe Company a copy of the Company's Certificate of Formation as filed
with the Delaware Secretary of State.
3. Adoption of Operating Agreement.
RESOLVED, that the Limited Liability Company Agreement attached to these
resolutions as Exhibit B is hereby ratified, approved and adopted as the Limited Liability
Company Agreement of the Company.
RESOLVED FURTHER, that any officer of tiie Company is authorized and directed to
see that a copy ofthe Limited Liability Company Agreement is kept at the Company's office for
the maintenance of records.
4. Principal Place of Business.
RESOLVED, tiiat the principal place of business of tiie Company shall be located at 5918
Stoneridge Mall Road, Pleasanton, CA 94588.
G:\Naomi Bannister\Subsidiaries\Prop Dev Centers LLC\Resos\Formation 08.2008.doc
yi 7
5. Expenses of Organization.
RESOLVED, that subject to the Limited Liability Agreement, tiie Sole Member and
officers are, and each acting alone is, hereby authorized and directed to pay on behalf ofthe
Company the expenses of the organization of the Company and to reimburse the persons
advancing funds for the Company for this purpose.
6. Approval of Qualifications to Conduct Business.
RESOLVED, that the appropriate officers of the Company be, and each such officer
hereby is, authorized and directed to take any and all steps that they deem to be necessary to
quaHfy the Company to do busmess as a foreign corporation in Arizona, California, Hawaii and
Washmgton and in each other state that the officers determine such qualification to be necessary
or appropriate.
7. Omnibus Resolutions.
RESOLVED, that the appropriate officers of the Company be, and each such officer
hereby is, authorized and directed, for and on behalf of the Company and in its name, to prepare
or cause to be prepared and to execute, deliver, verify, acknowledge, file or record any
documents, instruments, certificates, statements, papers or any amendments thereto, as may be
deemed necessary or advisable in order to perform and carry out the transactions contemplated
by the foregoing resolutions.
RESOLVED FURTHER, that the authority and power given herein be deemed
retroactive, and any and all acts performed prior hereto with the same purpose and intent
contemplated by the foregoing resolutions are hereby ratified and approved.
The undersigned, being the Sole Member of the Company, does hereby consent to the
foregoing actions as of the date first written above.
SOLE MEMBER
SAFEWAY INC.
By:
Robert A. Gordon
Its: Senior Vice President and Secretary
G:\Naomi Bannister\Subsidiaries\Prop Dev Centers LLC\Resos\Formation O8.2008.doc ^
PROPERTY DEVELOPMENT CENTERS LLC
SOLE MEMBER
Safeway Inc.
OFFICERS
Don Wright Chief Executive Officer
David Zylstra Chief Operating Officer
Robert A. Gordon Vice President & Secretary
Michael J. Boylan Vice President
Bradley S. Fox Vice President & Treasurer
Tom Hanavan Vice President
Don Shaw Vice President
Gerry Wolfe Vice President
Marilyn K. Beardsley Assistant Vice President & Assistant Secretary
Sharman K. Braff Assistant Vice President & Assistant Secretary
Laura A. Donald Assistant Vice President & Assistant Secretary
Genevieve Dougherty Assistant Vice President & Assistant Secretary
Ann C. EUiott Assistant Vice President & Assistant Secretary
Karen Elliott Assistant Vice President & Assistant Secretary
Steven J. Gouig Assistant Vice President & Assistant Secretary
Linda S. MacDonald Assistant Vice President & Assistant Secretary
Wendall Mitchell Assistant Vice President & Assistant Secretary
Denise M. Roman Assistant Vice President & Assistant Secretary
Dennis M. Stokely Assistant Vice President & Assistant Secretary
Dana Waller Assistant Vice President & Assistant Secretary
Robin H. Knight Assistant Vice President & Assistant Treasurer
EXHIBIT A
^ PROPERTY DEVELOPMENT CENTERS LLC
LIMITED LIABILITY COMPANY AGREEMENT
This LIMITED LIABILITY COMPANY AGREEMENT (this "Agreement) of
PROPERTY DEVELOPMENT CENTERS LLC (the "Company") is effective as of August 19,
2008.
1. Formation of Limited. Liabilitv Companv. Safeway Inc., a Delaware
corporation (tiie "Initial Member"), hereby forms the Company as a limited Hability company
pursuant to tiie provisions of the Delaware General Corporation Law and Delaware Limited
Liability Company Act (tiie "Act")- The rights and obligations of the Member, as defined below,
and tiie administration and termination of tiie Company shall be govemed by tiiis Agreement and
tiie Act. This Agreement shall be considered tiie "Limited Liability Company Agreement" ofthe
Company witiiin tiie meaning of tiie Act. To tiie extent tiiis Agreement is inconsistent in any
respect with the Act, tiiis Agreement shall control to tiie extent permitted by tiie Act.
2. Member. The member (the "Member") who shall act as the sole and
managing member ofthe Company shall be tiie Initial Member.
3. Purpose. The purpose of the Company is to engage in any and all lawful
/---x., businesses or activities in which a lunited liability company may be engaged under apphcable
^.J law (including, without limitation, tiie Act).
4. Name. The name of the Company shall be "PROPERTY
DEVELOPMENT CENTERS LLC."
5 Registered Agent and Principal Office. The registered office and
registered agent of tiie Company in tiie State of Delaware shall be as tiie Member may designate
firom time to time. The Company may have such other offices as tiie Member may designate
fiom time to time. The mailing address of tiie Company is 5918 Stoneridge Mall Road,
Pleasanton, CA 94588-3229.
6. Term of Company. The Company shall commence on the date that a
Certificate of Formation is properly filed with tiie Secretary of State ofthe State of Delaware and
shall continue in existence in perpetuity unless its business and affairs are earher wound up
following dissolution at such time as this Agreement may specify.
7. Autiiorized Person. Naomi K. Bannister is hereby designated as an
authorized person on behalf of tiie Member witiiin the meaning of the Act, and shall have the
power and autiiority to execute, deliver and file tiie Certificate of Formation of tiie Company
witii tiie Secretary of State of the State of Delaware. Upon tiie filing of tiie Certificate of
Formation, her powers as authorized person shall cease and the Member tiiereupon shall become
tiie designated autiiorized person and shall continue as tiie designated authorized person within
) the meaning of the Act.
mm s
3
8. Management of Company. All decisions relating to the business, affairs
and properties ofthe Company shall be made by tiie Member in its capacity as tiie managing
member. The Member may appoint a President and one or more Vice Presidents and such other
officers ofthe Company as the Member may deem necessary or advisable to manage tiie day-to-
day business affairs of tiie Company (tiie "Officers"). The Officers shall serve at tiie pleasure of
tiie Member. To the extent delegated by tiie Member, the Officers shall have the authority to act
on behalf of, bind and execute and deliver documents in the name and on behalf ofthe Company.
No such delegation shall cause the Member to cease to be a Member. Such Officers shall have
such autiiority and responsibility as is generally attributable to the holders of such offices in
corporations incorporated under tiie laws of Delaware. Notwitiistanding any other provisions of
this Agreement, the Member, acting alone, is authorized to execute and deliver any document on
behalf of the Company without any vote or consent of any otiier person.
9. Distributions. Each distribution of cash or other property by tiie Company
shall be made 100% to tihe Member. Each item of income, gain, loss, deduction and credit ofthe
Company shall be allocated 100% to the Member.
10. Contributions. The Member has contributed capital to tiie Company in the
amounts reflected on tiiie books and records of tiie Company. The Member may not be required
to contribute any additional capital witiiout the Member's consent.
11. Capital Accounts. A capital account shall be maintained for tiie Member
in accordance witii Treasury Regulations Section 1.704-1 (b)(2)(iv).
12. Indemnification. The Company shall indemnify and hold harmless the
Member to the full extent permitted by law from and against any and all losses, claims, demands,
costs, damages, liabilities, expenses of any nature (includmg attorneys' fees and disbursements),
judgments, fines, settiements and other amounts (collectively, "Costs") arising from any and all
claims, demands, actions, suits or proceedings (civil, criminal, administrative or investigative)
(collectively, "Actions") in which tiie Member may be involved, or tiireatened to be involved as
a party or otherwise, relatmg to the performance or nonperformance of any act conceming the
activities of tiie Company, hi addition, to tiie extent permitted by law, the Company shall
indemnify and hold harmless any of its Officers from and agauist any and all Costs arising from
any or all Actions arising in connection witii the business of the Company or by virtue of such
Officer's capacity as an officer of tiie Company. Notwithstanding the foregoing, any and all
indemnification obligations of the Company shall be satisfied only from tiie assets of tiie
Company, and the Member shall have no Hability or responsibility therefor.
13. Dissolution and Wmding Up. Upon execution by tiie Member of a written
instmment authorizing the dissolution of the Company, the Company shall dissolve and its
business and affairs shall be wound up.
14. Amendments. This Agreement may be amended or modified from time to
time only by a written instrument executed by the Member.
G:\Naomi Bannister\Subsidiaries\Prop Dev Centers LLCVPropDevCentersLLC Agreement.doc
15. Goveming Law. The validity and enforceability of this Agreement shall
be govemed by and constmed in accordance with the laws of the State of Delaware without
regard to otherwise governing principles of conflicts of law.
IN WITNESS WHEREOF, the parties hereto have duly executed this Limited
Liability Company Agreement as of the date first set forth above.
SOLE AND MANAGING MEMBER
SAFEWAY INC.
By
Robert A. Gordon
Its: Senior Vice President and Secretary
GANaomi BannistertSubsidiariesVProp Dev Centers LLCVPropDevCentersLLC Agreement.doc