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Home My WebLink AboutCT 98-10; Carlsbad Raceway Business Park; Tentative Map (CT) (9)Request for Refund City of Carlsbad Account #: 17232105593 Amount of Refund: $100,000 Date Fee Paid: 10/21/04 Vendor #: CT 98-10 Carlsbad Raceway Fee Paid For: Wildlife crossing at Carlsbad Raceway Fee Paid By: H.G. Fenton Company _ Fee Supporting Request: Attached email from City Attorney's office and copy of indemnification and hold harmless letter from H.G. Fenton. NAME OF APPLICANT: H.G. Fenton Company STREET ADDRESS: CITY, STATE & ZIP: 7577 Mission Valley Road, Ste. 200 San Diego, CA 92108 PREPARED BY:DATE: APPROVING OFFICAL:OJA DATE: JZ-tf-QC Mjchejejyjastersqn - Fenton security Pagej From: Jane Mobaldi To: Sandra Holder Date: 12/18/2006 2:33:29 PM Subject: Fenton security I have received an executed indemnity agreement from H.G. Fenton Company with regard to the return of the $100,000. security they posted for a wildlife crossing. I will send you a copy in the interoffice mail. Please ensure that the deposit is promptly returned to them as this agreement protects the City from liability should a third party dispute this action. NOTICE: THE INFORMATION CONTAINED IN THIS E-MAIL CONTAINS CONFIDENTIAL ATTORNEY WORK PRODUCT AND/OR ATTORNEY-CLIENT INFORMATION. IT IS MEANT TO BE READ ONLY BY THE INTENDED RECIPIENT, AND SHOULD NOT BE READ BY ANYONE ELSE. IF YOU RECEIVED THIS EMAIL IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONING THE SENDER AT (760) 434-2891 AND DELETE/DESTROY THE EMAIL. THANK YOU. CC:Don Neu; Mike Grim; Ray Patchett; Ron Ball H.G. FENTON COMPANY , TRUST, SERVICE AND TRADITION SINCE 19O6 December 15, 2006 Ms. Jane Molbaldi Assistant City Attorney 1200 Carlsbad Village Drive Carlsbad, CA 92008-1949 RE: Dear Jane: srisbad Raceway Business Park; Return of $100,000 I am writing this letter as a follow up to our recent conversation regarding H.G. Fenton's request that the City refund to it the $100,000 that was paid to the City in connection with the above- referenced project as a deposit for a wildlife crossing at the Fenton Raceway project. In exchange for the City's agreement to return the $100,000 to Fenton, pursuant to this letter agreement, H.G. Fenton Company hereby agrees to indemnify and hold harmless the City and its officers, officials, employees and consultants, from and against any and all claims, damages, losses and expenses (including reasonable attorneys fees) arising out of, or related directly or indirectly to a claim or action disputing the City's refund of the $100,000 deposit to H.G. Fenton. Sincerely, H.G. Fenton Company, A California corporation Its:President and CEO 7577 Mission Valley Road, Suite 200 San Diego, CA 92108 p ! 619.400.0120 f i 619.400.0111 www.hgfenton.com TRANSACTION DETAIL SUBTOTAL BY MONTH 07/01/00 through 03/23/05 OrgKey: 1723210 HABITAT MITIGATION FEE Primary Date . Reference Object: 5598 04/22/04 CSCA422 08/05/04 CSCA804A t 10/21/04 CSCAC21A 10/21/04 CSCAC21A % 12/13/04 CSCAD13B 12/13/04 CSCAD13B Vendor ID Transaction Description IV1ISC OPER CONTRB 01 •• CASH RECEIPTS - PALOMAR FORUM C1 . CASH RECEIPTS - MAMMOTH SIERRA C1 CASH RECEIPTS - HOFMANN PLANNI C1 CASH RECEIPTS - HOFMANN PLANNI N/A..N/A HMP04003 JAVAHERI RESIDENCE N/A..N/A HMP04004 RANCHO CAZADERO Secondary Batch ID Reference Check # CSCA422 PALOMAR FORUM "** APRIL TOTAL ** CSCA804A MAMMOTH SIERRA.F ** AUGUST TOTAL ** CSCAC21A HOFMANN PLANNING CSCAC21A HOFMANN PLANNING . ** OCTOBER TOTAL ** CSCAD13B HMP04003 JAVAHER CSCAD13B HMP04004 RANCHO ** DECEMBER TOTAL ** Debits 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 . 0.00 0.00 Credits 133,867.80 133,867.80 2,160.00 2,160.00 • A 225,865.90 ' 100,000.00 325,865.90 . ^ 5,804.86 979.30 6,784.16 Balance 133,867.80 136,027.80 361,893.70 461,893.70 ^£"3 467,698.56 468,677.86 TOTAL ORG KEY 1723210 0.00 468,677.86 468,677.86 User Generic User View Only Report: Transactions Detail Transaction Detail by Object and Month Page 1 03/23/05 :Date 15:34:51 :Time Hofman Planning A s s o c._ i a t e s Planning Fiscal Services Environmental October 21, 2004 AnneHysong City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 SUBJECT: Deposit of Environmental Mitigation Fees - CT f8-to Dear Anne: Enclosed please find two separate checks for environmental mitigation. The first check is for mitigation of non-native grass plant in the amount of $225,865.90. The second check is in the amount of $100,000 and is a deposit that is payable to the City in the event that we do not construct a wildlife undercrossing under Lionshead Street. Please note that this amount is a deposit only and would be utilized by the City only in the event that the undercrossing is not built. If we do end up building the undercrossing, this money would be refunded back to the H.G. Fenton Company. Please call me if you have any other questions regarding this issue. Sincerely, Bill Hofman Cc: Alan Jones 5900 Pasteur Court • Suite 150 • Carlsbad • CA 92008 • (760)438-1465 • Fax: (760)438-2443 FAX TRANSMITTAL DATE: December 2, 2004 TIME SENT: Number of Pages Being Transmitted (Including Cover Sheet): 2 TO: Bill Hdfman COMPANY: Hofman Planning PHONE #: FAX#:438-2443 FROM: Anne Hysong DEPT.: PLANNING PHONE: (760)602-4622 FAX: (760) 602-8559 SPECIAL INSTRUCTIONS: The letter you requested is attached. I read the conditions and understand what Aian was saying. However, the approved plans incorporated an undercrossing, and all involved understood that an undercrossing was to be constructed.....either under PAR or Street B. We accepted the deposit to enable the final map approval; however, if the PAR undercrossing is determined to be infeasible due to cost, then the Street B undercrossing would need to be constructed and the $100,000 would be refunded. It would be necessary for the Service to agree to the elimination of any undercrossing before we could proceed that way. Anne n Return Fax Avenue Carlsbad, California 92008-7314 CITY OF CARLSBAD 1635 FARAWf AVENUE CARLSBAD, CALfi^ORNIA 92008 (760) 602-2401 REC'D FROM DATE ACCOUNT NO. / "/<? -33/C -• '^/f 23 DESCRIPTION /. u / ,.L^U6 A; i^^uua^L* 7/ idik^f^^— ^ -^-4" --/J 'x.. ^.. . . / , .. / ^ •.^£H .iU/Zi/y / Q[07Q NOT VALID UNLESS VALIDATED BY TOTAL AMOUNT / 00,1,00 00 t 0002 .01 • 04 : 100,000 - ^y Printed on recycled papei CASH REGISTER .:';•; •••£'- 436. ••:': : j;js|jimeiM;;;;K;K; CARLSBAD RACEW Payor: H. _fa^ee:_Cj_ -;:;ACctNfe;K 1460-000 £Ji^p£a lO^PpEE! ~-^r:t IH.G .^ "• - -1 •""g; K ^;:-;::i3ate::::.";: 10/19/2004 ^•si-RI. S HfM@ ^^« iA-J -i- i" ^IfeSjj^iSsK&jSSM :::.lJpiD!;C:QdeK: A1297D •sSSSKSSWiBp ry^ ^~% ^. T ;iuN i: ;«is£Sii'-^-!=l&^S^-.S. ;;!;:U:.;i-Keference:,i WILDLIFE CF fifSSSfiffSlSiX-l-KVsZisAitrfisifffim.^a^f-Vfrffrife^S^ •-^ i**"'*-. "^ jFT ^' ? 3 l\ - K i!-*is n ! % S sit^f^fiif£.JL ifessfts-plei® vOSSING F "?4 _ i *>! r... ,N•%/ 2. *::';-: :fA:rtlO't)ht;;ii;-;r 100,000.00 " G FENTON COMPANY Uate Uieok Nu. h fr l«bld 10/19/2004 021672 •^::Digb6tirit::i 0.00 iiiiiMi^] 100,000.00 Check Amount $100,000.00 Relain Ihis statement for your records REC'D FROM CITY OF CARLSBAD / AVENUE CARLSBAD, CALIFORNIA 92008 (760) 602-2401 DATE ACCOUNT NO.DESCRIPTION AMOUNT , 3785 $0/2'21/0* 0002 01 04 « yy NOT VALID UNLESS VALIDATED BY TOTAL ^y Printed on recycled paper. ;uEnti:;;' 436 :;;^r:';;:;.:Narne:H;:;:;!i;:;S CARLSBAD RACEW £;:iA:Got:-Na;15 1460-000 MlwjijM 10/HrEE£ • - x— "i ;;::;i;;:pate;i,;::.;; 10/19/2004 ~«i , "•- ~2 -\ H *. t— -. !;=J6biCodea A1297D -r1/^ » r? ! 1 *! '„ •«_ _ •* ^, ~> ;::;; ::;:::!:Refererice:::j^^!;:: HABITAT MITIGATION " "" <* *^r— -Tj; A -ajV--*_ -- i i r\i^i i ~ ';!!;£'; iftmouritiSi; 225,865.90 ; i :• I ;i;SD'isc6iJntr^- 0.00 ^:-:;:Net 225,865.90 Payor: H. G. FENTON COMPANY Date Check No. Check Amount Payee: City of Carlsbad 10/19/2004 021673 .' $225,865.90 Retain this statement for your records CITY OF CARLSBAD LAND USE REVIEW APPLICATION 1) APPLICATIONS APPLIED FOR: (C Q Administrative Permit - 2nd Dwelling Unit Q Administrative Variance Q Coastal Development Permit Q Conditional Use Permit Q Condominium Permit 0 Environmental Impact Assessment QT] General Plan Amendment Q3 Hillside Development Permit O Local Coastal Plan Amendment Q Master Plan Q Non-Residential Planned Development Q Planned Development Permit HECK BOXES) (FOR DEPARTMENT USE ONLY) &p# w-os tfDf 1<?'0^ Q Planned Industrial Permit Q Planning Commission Determination | | Precise Development Plan Q Redevelopment Permit Q Site Development Plan n Special Use Permit [U Specific Plan n Tentative Porcol Map Obtain from Engineering Department |"X| Tentative Tract Map n Variance Q] Zone Change 0 List other applications not specified LFMP Amendment (FOR DEPARTMENT USE ONLY) CT 1*~/o LWP ?•?-/*(>; 221-011-03, 04, 05, 22 Carlsbad Raceway Business Park 2) 3) 4) industrial lots and 3 open space lots; General Plan Amendment to amend PI/0designation to PI. ASSESSOR PARCEL NO(S).: PROJECT NAME: BRIEF DESCRIPTION OF PROJECT: Tentative Map to divide a 146.3 acre site into 24 5) OWNER NAME (Print or Type) Raceway Properties, LLC MAILING ADDRESS c/o Kurtin 12750 Carmel Country Road CITY AND STATE ZIP San Diego, CA 92130 Properties , Suite 204 %£% TELEPHONE (.£4-9)79 3*7^33= _^? /— Q £& •9^ «*7 iff I I I CERTIFY^THAT I AM THE LEGAL OWNER AND THAT ALL THE ABOVE INFORMATION IS TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE. . SIGNATL/RE DATE 6) APPLICANT NAME (Print or Type) Hofman Planning Associates MAILING ADDRESS £"90® £z*=£e-**^-J GL& ^~^ - -y- - -^~ u o CITY AND STATE ZIP TELEPHONE Carlsbad, CA 92008 (760)4381465 I CERTIFY THAT I AM THE LEGAL REPRESENTATIVE OF THE OWNER AND THAT ALL THE ABOVE INFORMATION IS TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE. /OxX/7 X/zr^^t^^-v 5 '"ZS^ °i 8 SIGNATURE U DATE Parcels 1,2,3A,3B and 4 within portions of Sections 7) • E^IEF LEGAL DESCRIPTION 13 and 18, Township 12 South, Range 3 West, San Bernadino Meridian in the City of Carlsbad, County of San Diego, State of California.NOTE: A PROPOSED PROJECT REQUIRING MULTIPLE APPLICATIONS BE FILED, MUST BE SUBMITTED PRIOR TO 3:30 P.M. A PROPOSED PROJECT REQUIRING ONLY ONE APPLICATION BE FILED, MUST BE SUBMITTED PRIOR TO 4:00 P.M. Form 16 PAGE 1 OF 2 8) 'LOCATION OF PROJECT: ON THE N/A North STREET ADDRESS SIDE OF Palomar Airport Road (NORTH, SOUTH, EAST, WEST)(NAME OF STREET) BETWEEN Loker Avenue East AND (NAME OF STREET) Business Park Drive (NAME OF STREET) 9) LOCAL FACILITIES MANAGEMENT ZONE 1 0) PROPOSED NUMBER OF LOTS 18 13) TYPE OF SUBDIVISION 1 6) PERCENTAGE OF PROPOSED PROJECT IN OPEN SPACE 1 9) GROSS SITE ACREAGE 22) EXISTING ZONING 11) NUMBER OF EXISTING RESIDENTIAL UNITS 14) PROPOSED IND OFFICE/ SQUARE FOOTAGE 17) PROPOSED INCREASE IN ADT 8,940 ADT 20) EXISTING GENERAL PLAN 23) PROPOSED ZONING 12) PROPOSED NUMBER OF RESIDENTIAL UNITS 15) PROPOSED COMM SQUARE FOOTAGE 18) PROPOSED SEWER USAGE IN EDU 21) PROPOSED GENERAL PLAN DESIGNATION 24)IN THE PROCESS OF REVIEWING THIS APPLICATION IT MAY BE NECESSARY FOR MEMBERS OF CITY STAFF, PLANNING COMMISSIONERS, DESIGN REVIEW BOARD MEMEBERS OR CITY COUNCIL MEMBERS TO INSPECT AND ENTER THE PROPERTY THAT IS THE SUBJECT OF THIS APPLICATION. I/WE CONSENT TO ENTR>\{ ORTHIS PURPOSE SIGNA'URB FOR CITY USE ONLY FEE COMPUTATION APPLICATION TYPE cr HOP PFf TOTAL FEE REQUIRED FEE REQUIRED . 6-Q RECEWEP JUN 0 *t 1998 riTY OF CARLSBADU -QDEPT APPLICATION RECEIVED RECEIVED BY: DATE FEE PAID RECEIPT NO. Form 1 6 PAGE 2 OF 2 • f City of Carlsbad Planning Department INSTRUCTION SHEET FOR FILLING OUT ENVIRONMENTAL IMPACT ASSESSMENT FORM - PART I This Environmental Impact Assessment (EIA) Form - Part I will be used to determine what type of environmental documentation (i.e., Environmental Impact Report, Mitigated Negative Declaration, Negative Declaration or Exemption) will be required to be prepared for your application, per the California Environmental Quality Act (CEQA) and Title 19 of Carlsbad's Municipal Code. The clarity and accuracy of the information you provide is critical for purposes of quickly determining the specific environmental effects of your project. Recent judicial decisions have held that a "naked checklist," that is checklist that is merely checked "yes" or "no," is insufficient to comply with the requirements of the California Environmental Quality act. Each "yes" or "no" answer must be accompanied by a written explanation justifying the "yes" or "no" answer. This is especially important when a Negative Declaration is being sought. The more information provided in this form, the easier and quicker it will be for staff to complete the Environmental Impact Assessment Form - Part II. 2O75 Las Palmas Dr. • Carlsbad, CA 92009-1576 • (619) 438-1161 • FAX (619) 438-O894 ENVIRONMENTAL IMPACT ASSESSMENT FORM - PART I (TO BE COMPLETED BY THE APPLICANT) CASE NO: DATE RECEIVED: (To be completed by staff) BACKGROUND 1 CASE NAME: Carlsbad Raceway Business'Park 2. APPLICANT: Hofman Planning Associates 3. ADDRESS AND PHONE NUMBER OF APPLICANT: 238 6 Faraday Avenue, Ste. 1 20 Carlsbad, CA 92008 (760) 438-1465 4. PROJECT DESCRIPTION: Tentative Map to divide a 146.3 acre site into 24 industrial lots and 3 open space lots. SUMMARY OF ENVIRONMENTAL FACTORS POTENTIALLY AFFECTED: Please check any of the environmental factors listed below that would be potentially affected by this project. This would be any environmental factor that has at least one impact checked "Potentially Significant Impact," or "Potentially Significant Impact Unless Mitigation Incorporated" in the checklist on the following pages. | | Land Use and Planning Qc] Transportation/Circulation [ [ Public Services | | Population and Housing fg Biological Resources [ | Utilities & Service Systems | | Geological Problems Q Energy & Mineral Resources [ | Aesthetics | | Water [%] Hazards | | Cultural Resources C"| Air Quality [~~| Noise j~~| Recreation | | Mandatory Findings of Significance 1 Rev. 03/28/96 ENVIRONMENTAL IMPACTS STATE CEQA GUIDELINES, Chapter 3, Article 5, Section 15063 requires that the City conduct an Environmental Impact Assessment to determine if a project may have a significant effect on the environment. The Environmental Impact Assessment appears in the following pages in the form of a checklist. This checklist identifies any physical, biological and human factors that might be impacted by the proposed project and provides the City with information to use as the basis for deciding whether to prepare an Environmental Impact Report (EIR). Negative Declaration, or to rely on a previously approved EIR or Negative Declaration. • A brief explanation is required for all answers except "No Impact" answers that are adequately supported by an information source cited in the parentheses following each question. A "No Impact" answer is adequately supported if the referenced information sources show that the impact simply does not apply to projects like the one involved. A "No Impact" answer should be explained when there is no source document to refer to. or it is based on project-specific factors as well as general standards. • "Less Than Significant Impact" applies where there is supporting evidence that the potential impact is not adversely significant, and the impact does not exceed adopted general standards and policies. • "Potentially Significant Unless Mitigation Incorporated" applies where the incorporation of mitigation measures has reduced an effect from "Potentially Significant Impact" to a "Less Than Significant Impact." The developer must agree to the mitigation, and the City must describe the mitigation measures, and briefly explain how they reduce the effect to a less than significant level. • "Potentially Significant Impact" is appropriate if there is substantial evidence that an effect is significant. • Based on an "EIA-Part II", if a proposed project could have a potentially significant effect on the environment, but all potentially significant effects (a) have been analyzed adequately in an earlier EIR or Mitigated Negative Declaration pursuant to applicable standards and (b) have been avoided or mitigated pursuant to that earlier EIR or Mitigated Negative Declaration, including revisions or mitigation measures that are imposed upon the proposed project, and none of the circumstances requiring a supplement to or supplemental EIR are present and all the mitigation measures required by the prior environmental document have been incorporated into this project, then no additional environmental document is required (Prior Compliance). • When "Potentially Significant Impact" is checked the project is not necessarily required to prepare an EIR if the significant effect has been analyzed adequately in an earlier EIR pursuant to applicable standards and the effect will be mitigated, or a "Statement of Overriding Considerations" has been made pursuant to that earlier EIR. • A Negative Declaration may be prepared if the City perceives no substantial evidence that the project or any of its aspects may cause a significant effect on the environment. Rev. 03/28/96 • If there are one or more potentially significant effects, the City may avoid preparing an EIR if there are mitigation measures to clearly reduce impacts to less than significant, and those mitigation measures are agreed to by the developer prior to public review. In this case, the appropriate "Potentially Significant Impact Unless Mitigation Incorporated" may be checked and a Mitigated Negative Declaration may be prepared. • An EIR must be prepared if "Potentially Significant Impact" is checked, and including but not limited to the following circumstances: (1) the potentially significant effect has not been discussed or mitigated in an Earlier EIR pursuant to applicable standards, and the developer does not agree to mitigation measures that reduce the impact to less than significant; (2) a "Statement of Overriding Considerations" for the significant impact has not been made pursuant to an earlier EIR; (3) proposed mitigation measures do not reduce the impact to less than significant, or; (4) through the EIA-Part II analysis it is not possible to determine the level of significance for a potentially adverse effect, or determine the effectiveness of a mitigation measure in reducing a potentially significant effect to below a level of significance. A discussion of potential impacts and the proposed mitigation measures appears at the end of the form under DISCUSSION OF ENVIRONMENTAL EVALUATION. Particular attention should be given to discussing mitigation for impacts which would otherwise be determined sienificant. Rev. 03/28/96 Issues (and Supporting Information Sources): (Supplemental documents may be referred to and attached) I. LAND USE AND PLANNING. Would the proposal:. a) Conflict with general plan designation or zoning? (Source #(s): ( ) b) Conflict with applicable environmental plans or policies adopted by agencies with jurisdiction over the project? ( ) c) Be incompatible with existing land use in the vicinity? ( ) d) Affect agricultural resources or operations (e.g. impacts to soils or farmlands, or impacts from incompatible land uses? ( ) e) Disrupt or divide the physical arrangement of an established community (including a low-income or minority community)? ( ) Potentially Significant Impact D D Potentially Significant Unless Mitigation Incorporated D a Less Than Significan t Impact a D a D D No Impact II. POPULATION AND HOUSING. Would the proposal: a) Cumulatively exceed official regional or local population projections? ( ) b) Induce substantial growth in an area either directly or indirectly (e.g. through projects in an undeveloped area or extension of major infrastructure)? ( ) c) Displace existing housing, especially affordable housing? ( ) D D D D D D D GEOLOGIC PROBLEMS. Would the proposal result in or expose people to potential impacts involving: a) Fault rupture? ( . ) b) Seismic ground shaking? ( ) c) Seismic ground failure, including liquefaction? d) Seiche, tsunami, or volcanic hazard? ( ) e) Landslides or mudflows? () 0 Erosion, changes in topography or unstable soil conditions from excavation, grading, or fill? g) Subsidence of the land? ( h) Expansive soils? ( ) i) Unique geologic or physical features? ) D D D D D D D D D D D D D D D D D D D D D x| ~x I x| x n I XI IV. WATER. Would the proposal result in: a) Changes in absorption rates, drainage patterns, or the rate and amount of surface runoff? ( ) b) Exposure of people or property to water related hazards such as flooding? ( )D D s n I I fxl Rev. 03/28/96 Issues (and Supporting Information Sources): (Supplemental documents may be referred to and attached) c) Discharge into surface waters or other alteration of surface water quality (e.g. temperature, dissolved oxygen or turbidity)? ( ) d) Changes in the amount of surface water in any water body? ( ) e) Changes in currents, or the course or direction of water movements? ( ) f) Changes in the quantity of ground waters, either through direct additions or withdrawals, or through interception of an aquifer by cuts or excavations or through substantial loss of groundwater recharge capability? ( ) g) Altered direction or rate of flow of eroundwater? ( ) h) Impacts to groundwater quality? ( ) i) Substantial reduction in the amount of groundwater otherwise available for public water supplies? Potentially Significant Impact D D D D D n Potentially Significant Unless Mitigation Incorporated D D n n Less Than Signii'ican t Impact D No Impact n [xl |xj n V. AIR QUALITY. Would the proposal: a) Violate any air quality standard or contribute to an existing or projected air quality violation? ( " ) b) Expose sensitive receptors to pollutants? ( ) c) Alter air movement, moisture, or temperature, or cause any change in climate? ( ) d) Create objectionable odors? ( ) D n n n D n n n n n n n VI. TRANSPORTATION/CIRCULATION. Would the proposal result in: a) Increased vehicle trips or traffic congestion? b) Hazards to safety from design features (e.g. sharp curves or dangerous intersections) or incompatible uses (e.g. farm equipment)? ( ) c) Inadequate emergency access or access to nearby uses? d) Insufficient parking capacity on-site or off-site? e) Hazards or barriers for pedestrians or bicyclists? f) Conflicts with adopted policies supporting alternative transportation (e.g. bus turnouts, bicycle racks)? g) Rail, waterborne or air traffic impacts? D D n n n n n n n n n n n n a D Lx] [XJ Cxi Rev. 03/28/96 Issues (and Supporting Information Sources): (Supplemental documents may be referred to and attached) VII. BIOLOGICAL RESOURCES. Would the proposal result in impacts to: a) Endangered, threatened or rare species or their habitats (including but not limited to plants, fish, insects, animals, and birds? ( ) b) Locally designated species (e.g. heritage trees)? ( ^ ) c) Locally designated natural communities (e.g. oak forest, coastal habitat, etc.)? ( ) d) Wetland habitat (e.g. marsh, riparian and vernal pool)? ( )" e) Wildlife dispersal or migration corridors? Potentially Significant Impact Potentially Significant Unless Mitigation Incorporated Less Than Significan t Impact No Impact D D n n - n n E n B n B n B n n n n n VIII. ENERGY AND MINERAL RESOURCES. Would the proposal? a) Conflict with adopted energy conservation plans? ( ) b) Use non-renewable resources in a wasteful and c) inefficient manner? () Result in the loss of availability of a known mineral resource that would be of future value to the region and the residents of the State? ( ) D D D DE DE D E IX. HAZARDS. Would the proposal involve: a) A risk of accidental explosion or release of hazardous substances (including, but not limited to: oil, pesticides, chemicals or radiation)? ( ) b) Possible interference with an emergency response plan or emergency evacuation plan? ( ) c) The creation of any health hazard or potential health hazards? ( ) d) Exposure of people to existing sources of potential health hazards? ( ) e) Increase fire hazard in areas with flammable brush, grass, or trees? ( ) D D D D D D D D D D D D X. NOISE. Would the proposal result in: a) Increases in existing noise levels? ( b) Exposure of people to severe noise levels?D D D XI. PUBLIC SERVICES. Would the proposal have an effect upon, or result in a need for new or altered government services in any of the following areas: a) Fire protection? ( ) b) Police protection? ( ) c) Schools? ( . ) nnn nn nn Rev. 03/28/96 Issues (and Supporting Information Sources): (Supplemental documents may be referred to and attached) d) Maintenance of public facilities, including roads? e) Other governmental services? ( ) XII. UTILITIES AND SERVICES SYSTEMS. Would the proposal result in a need for new systems or supplies, or substantial alterations to the following utilities: Power or natural gas? ( ) Communications systems? ( ) Local or regional water treatment or distribution facilities? ( ) Sewer or septic tanks? ( ) Storm water drainage? ( ) Solid waste disposal? ( ) Local or regional water supplies? ( ) a) b) c) d) e) 0 g) XIII. AESTHETICS. Would the proposal: a) Affect a scenic or vista or scenic highway? ( ) ' b) Have a demonstrate negative aesthetic effect? ( ) c) Create light or glare? ( ) XIV. CULTURAL RESOURCES. Would the proposal: a) Disturb paleontological resources? ( ) b) Disturb archaeological resources? ( ) c) Affect historical resources? ( ) d) Have the potential to cause a physical change which would affect unique ethnic cultural values? ( ) e) Restrict existing religious or sacred uses within the potential impact area? ( ) XV. RECREATIONAL. Would the proposal: a) Increase the demand for neighborhood or regional parks or other recreational facilities? ( ) b) Affect existing recreational opportunities?" Potentially Significant Impact D D D ' D D D D D D D D D D D D D D D D Potentially Significant Unless Mitigation Incorporated D D D D D G D D D D D D D Dnn n n n Less Than Significan t Impact [x] S H [x] LI [x] LH [x] B D D [x] D D D D D D E No Impact n D nnn nnnn [x] E D B iH [x] S E ffl n Rev. 03/28/96 Issues (and Supporting Information Sources): (Supplemental documents may be referred to and attached) XVI. MANDATORY FINDINGS OF SIGNIFICANCE. a) Does the project have the potential to degrade the quality of the environment, substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self-sustaining levels, threaten to eliminate a plant or animal community, reduce the number or restrict the range of a rare or endangered plant or animal or eliminate important examples of the major periods of California history or prehistory? b) Does the project have impacts that are individually limited, but cumulatively considerable? ("Cumulatively considerable" means that the incremental effects of a project are considerable when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects)? c) Does the project have environmental effects which will cause the substantial adverse effects on human beings, either directly or indirectly? XVII. EARLIER ANALYSES. Potentially Significant Impact D D D Potentially Significant Unless Mitigation Incorporated D D Less Than Significan t Impact No Impact D D D D Earlier analyses may be used where, pursuant to the tiering, program EIR, or other CEQA process, one or more effects have been adequately analyzed in an earlier EIR or negative declaration. Section 15063(c)(3)(D). In this case a discussion should identify the following on attached sheets: a) Earlier analyses used. Identify earlier analyses and state where they are available for review. b) Impacts adequately addressed. Identify which effects from the above checklist were within the scope of and adequately analyzed in an earlier document pursuant to applicable legal standards, and state whether such effects were addressed by mitigation measures based on the earlier analysis. c) Mitigation measures. For effects that are "Less than Significant with Mitigation Incorporated," describe the mitigation measures which were incorporated or refined from the earlier document and the extent to which they address site- specific conditions for the project. Rev. 03/28/96 DISCUSSION OF ENVIRONMENTAL EVALUATION Please use this area to discuss any of the environmental factors that were checked "No impact" yet lack any information citations and any factors that were checked "Potentially Significant Impact" or "Potentially Significant Impact Unless Mitigation Incorporated." The City has adopted a "Statement of Overriding Consideration" with regard to air quality and circulation impacts resulting from the normal buildout according to the General Plan. The following sample text is intended to guide your discussion of the impacts to these environmental factors. AIR QUALITY: The implementation of subsequent projects that are consistent with and included in the updated 1994 General Plan will result in increased gas and electric power consumption and vehicle miles traveled. These subsequently result in increases in the emission of carbon monoxide, reactive organic gases, oxides of nitrogen and sulfur, and suspended particulates. These aerosols are the major contributors to air pollution in the City as well as in the San Diego Air Basin. Since the San Diego Air Basin is a "non-attainment basin", any additional air emissions are considered cumulatively significant: therefore, continued development to buildout as proposed in the updated General Plan will have cumulative significant impacts on the air quality of the region. To lessen or minimize the impact on air quality associated with General Plan buildout. a variety of mitigation measures are recommended in the Final Master EIR. These include: 1) provisions for roadway and intersection improvements prior to or concurrent with development; 2) measures to reduce vehicle trips through the implementation of Congestion and Transportation Demand Management; 3) provisions to encourage alternative modes of transportation including mass transit services; 4) conditions to promote energy efficient building and site design; and 5) participation in regional growth management strategies when adopted. The applicable and appropriate General Plan air quality mitigation measures have either been incorporated into the design of the project or are included as conditions of project approval. Operation-related emissions are considered cumulatively significant because the project is located within a "non-attainment basin", therefore, the "Initial Study" checklist is marked "Potentially Significant Impact". This project is consistent with the General Plan, therefore, the preparation of an EIR is not required because the certification of Final Master EIR 93-01, by City Council Resolution No. 94-246, included a "Statement Of Overriding Considerations" for air quality impacts. This "Statement Of Overriding Considerations" applies to all subsequent projects covered by the General Plan's Final Master EIR, including this project, therefore, no further environmental review of air quality impacts is required. This document is available at the Planning Department. CIRCULATION: The implementation of subsequent projects that are consistent with and included in the updated 1994 General Plan will result in increased traffic volumes. Roadway segments will be adequate to accommodate buildout traffic; however, 12 full and 2 partial intersections will be severely impacted by regional through-traffic over which the City has no jurisdictional control. These generally include all freeway interchange areas and major intersections along Carlsbad Boulevard. Even with the implementation of roadway improvements, a number of intersections 9 Rev. 03/28/96 are projected to fail the City's adopted Growth Management performance standards at buildout. To lessen or minimize the impact on circulation associated with General Plan buildout. numerous mitigation measures have been recommended in the Final Master EIR. These include measures to ensure the provision of circulation facilities concurrent with need; 2) provisions to develop alternative modes of transportation such as trails, bicycle routes, additional sidewalks, pedestrian linkages, and commuter rail systems; and 3) participation in regional circulation strategies when adopted. The diversion of regional through-traffic from a failing Interstate or State Highway onto City streets creates impacts that are not within the jurisdiction of the City to control. The applicable and appropriate General Plan circulation mitigation measures have either been incorporated into the design of the project or are included as conditions of project approval. Regional related circulation impacts are considered cumulatively significant because of the failure of intersections at buildout of the General Plan due to regional through-traffic, therefore, the "Initial Study" checklist is marked "Potentially Significant Impact". This project is consistent with the General Plan, therefore, the preparation of an EIR is not required because the recent certification of Final Master EIR 93-01, by City Council Resolution No. 94-246, included a "Statement Of Overriding Considerations" for circulation impacts. This "Statement Of Overriding Considerations" applies to all subsequent projects covered by the General Plan's Master EIR, including this project, therefore, no further environmental review of circulation impacts is required. LIST OF MITIGATING MEASURES (IF APPLICABLE) ATTACH MITIGATION MONITORING PROGRAM (IF APPLICABLE^) 10 Rev. 03/28/96 PART I EIA for CARLSBAD RACEWAY BUSINESS PARK L LAND USE PLANNING a) No impact. The proposed project will conform with General Plan and Zoning designations. b) No impact. The proposed project will conform with applicable environmental plans and policies adopted by agencies with jurisdiction over the project. c) No impact. The proposed project will be developed to compliment the adjacent non-residential uses. d) Less than significant impact. The proposed project will utilize areas previously used for agricultural purposes, including non-irrigated farming. See Draft Biological Technical Report for the Carlsbad Raceway Project, page 6. e) No impact. The project site does not contain an established community and will not disrupt or divide the physical arrangement of any established communities. No homes are currently located on this site. H, POPULATION AND HOUSING a) No impact. The proposed project will not alter the planned distribution of population or housing in the area. b) No impact. The proposed project will use existing infrastructure and will not induce growth in other areas. c) No impact. The site for the proposed project will not displace existing housing as none currently exists on the site. GEOLOGIC PROBLEMS a-c) No impact. The proposed project will not result in fault rupture, seismic ground shaking or seismic ground failure. Faults or seismically active zones are not in near proximity to the project site. See Preliminary Geotechnical Investigation Proposed Industrial Development Carlsbad Raceway Property. d) No impact. The proposed project will not expose people to impacts involving seiche, tsunami or volcanic hazard. The site is not located in an area of volcanic activity and does not have a history of seiche or tsunami hazards. e) No impact. The proposed project will not result in landslides or mudflows. Potential impacts will be addressed by a future grading plan. f) No impact. The proposed project will not result in erosion, changes in topography or unstable soil conditions resulting from excavation, grading or fill. Potential impacts will be addressed by a future grading plan. g) No impact. The proposed project will not result in subsidence of the land. Potential impacts will be addressed by a future grading plan. h) Less than significant impact. Expansive soils occur on the proposed project site. The potential impact of expansive soils will be addressed by a future grading plan. These soils may be excavated, buried or otherwise addressed by the grading plan. See Preliminary Geotechnical Investigation Proposed Industrial Development Carlsbad Raceway Property. i) No impact. No unique geologic or physical features are known to exist at the project site. IV. WATER a) Less than significant impact. The proposed project would not result in significant changes in absorption rates, drainage patterns or rate and amount of surface runoff. b) No impact. The proposed project will not expose people or property to water related hazards. c) Less than significant impact. Discharge into surface water will not be significantly altered and surface water quality will not be significantly affected by the proposed project. d) No impact. The project will not significantly affect the amount of surface water in any water body. e) No impact. The project will not significantly affect currents, or the course or direction of water movements. f) No impact. The project will not significantly affect the quantity of ground waters. g) No impact. Since the proposed project will not use ground water, the project will not alter direction or rate of flow of ground water. h) Less than significant impact. The project will not significantly impact groundwater quality. i) No impact. The proposed project will not cause a substantial reduction in the amount of groundwater otherwise available for public water supplies since the project will not use ground water nor impact a significant area otherwise available for groundwater percolation. V. AIR QUALITY a) Potentially significant impact. Although the project will contribute to cumulative air quality impacts, as virtually any development within the San Diego Air Basin will, a statement of overriding consideration was adopted in the City of Carlsbad's Final Master EIR for this cumulative impact. b) No impact. The project will not expose sensitive receptors. c) No impact. The project will not alter air movement, moisture, temperature, or cause any change in climate. d) No impact. The proposed project will not create objectionable odors. VI. TRANSPORTATION/CIRCULATION a) Potentially significant impact. The proposed project will result in an additional 8, 940 ADT. See Transportation Analysis for the Carlsbad Raceway Business Park. Although the project will contribute to increased vehicle trips, a statement of overriding consideration was adopted in the City of Carlsbad's Final Master EIR for this cumulative impact. b) No impact. The project will not result in hazards to safety from design features. c) No impact. The proposed project will provide adequate emergency access. d) No impact. Parking for the project will be sufficient. Parking requirements for the site will comply with the Planned Development requirements of the Carlsbad Municipal Code. e) No impact. The project will not result in hazards or barriers for pedestrians or bicyclists. f) No impact. The proposed project will conform with adopted policies supporting alternative transportation. g) No impact. No impact to railroad or waterborne traffic is anticipated. VH. BIOLOGICAL RESOURCES a-c) Potentially significant unless mitigation incorporated. The Draft Biological Technical Report for the Carlsbad Raceway Project found that there are 21 sensitive plant species potentially occurring on the site, one federally listed as endangered and 26 sensitive animal species potentially occurring on the site, three of which are federally listed as endangered. However, none of the sensitive plant nor animal species were found on the site at the time of the survey. In most cases, the potential for finding these species on the site are low. The majority of direct impacts from the project are to non-native grassland and disturbed areas. Direct impacts to southern mixed chaparral and Diegan coastal sage scrub are considered significant and will be mitigated. See Draft Biological Technical Report for the Carlsbad Raceway Project, page 19. d) Potentially significant unless mitigation incorporated. The project will involve impacts to mule fat scrub, southern willow scrub, and coastal and valley freshwater marsh habitats which are considered wetland and / or riparian habitats. See Draft Biological Technical Report for the Carlsbad Raceway Project, page 6. A mitigation program is being developed with resource agencies and city staff. General guidelines include mitigation of all impacts to wetland habitats. e) Potentially significant unless mitigation incorporated. Although wildlife movement will be constricted across the site, a corridor with a minimum width of 400 feet will be provided to facilitate wildlife movement. See Draft Biological Technical Report for the Carlsbad Raceway Project, page 18. The provision of a 12 foot high undercrossing for Melrose Drive will also insure wildlife movement. See Draft Biological Technical Report for the Carlsbad Raceway Project, page 19. ENERGY AND MINERAL RESOURCES a) No impact. The proposed project will conform with adopted energy conservation plans. b) No impact. The proposed project will not use non-renewable resources in a wasteful or inefficient manner. c) No impact. The proposed project will not result in the loss of availability of a known mineral resource that would be of future value to the region and the residents of the State. IX. HAZARDS a) Potentially significant unless mitigation incorporated. The proposed project will not store any hazardous materials and therefore will not propose a risk of accidental explosion or release of any hazardous substances. Because the site has been used as a raceway since 1961, various portions of the site have been used for in-direct storage / use of hazardous substances (petroleum hydrocarbons). Four site assessments have been conducted since 1990 to monitor and document the presence of these substances. See Phase 1 Environmental Site Assessment Update, Carlsbad Raceway Property. b) No impact. The proposed project will be designed so as not to interfere with any emergency response or evacuation plans. c-d) Less than significant impact. The proposed project will not result in the creation of any health hazards or the exposure of people to existing sources of potential health hazards. As documented in Phase 1 Environmental Site Assessment Update, Carlsbad Raceway Property, human exposure to limited soil contamination will be eliminated by utilizing contaminated soil for fill areas which will likely occur under asphalt paving for parking lots and roadways. e) No impact. The proposed project will not increase fire hazard in areas with flammable brush, grass or trees. X. NOISE a) Less than significant impact. The proposed project will not significantly increase existing noise levels. b) Less than significant impact. The proposed project will not result in the exposure of people to severe noise levels. XL PUBLIC SERVICES a - e) Less than significant impact. Public services to the project site have been considered. The proposed project will not create any significant additional impacts. Xn. UTILITIES AND SERVICES SYSTEMS a - g) Less than significant impact. All of these utilities and service systems for the project site have been considered. The proposed project will not create any significant additional impacts. Xm. AESTHETICS a) No impact. The proposed project will not affect scenic highway or vista. The project site has been used as a raceway since the 1960's. b) No impact. The proposed project will not have a demonstrate negative aesthetic effect. c) Less than significant impact. The project will be designed in such a manner as to not create significant light or glare. XIV. CULTURAL RESOURCES a - c) No impact. At this time, the presence of paleontological, archaeological and historical resources are unknown on this site. d) No impact. Unique ethnic cultural values are not known to be associated with this site. e) No impact. No religious or sacred uses are known to exist within the project area. XV. RECREATION a) No impact. The proposed project will not increase the demand for any type of recreational facilities. b) Less than significant impact. The proposed project will involve the removal of the Carlsbad Raceway, which has been operating since 1961. XVI. MANDATORY FINDINGS OF SIGNIFICANCE a) Potentially significant unless mitigation incorporated. This project has the potential to degrade the quality of the environment and reduce wildlife and fish habitat. This potential is documented in the Draft Biological Technical Report for the Carlsbad Raceway Project. However, the project proposes to provide a key wildlife corridor linking open space and to preserve a viable network of open space blocks as part of the City of Carlsbad's Habitat Management Plan. b) Less than significant impact. This project will contribute to cumulative air quality impacts and increased vehicle trips, as does virtually any development project. A statement of overriding consideration was adopted for these cumulative impacts. c) Less than significant impact. The proposed project will not cause substantial adverse effects on human beings. Any potential effects are documented by the Phase 1 Environmental Site Assessment Update, Carlsbad Raceway Property. XVn. EARLIER ANALYSIS q) Source documents are on file in the Planning Department located at 2075 Las Palmas Drive, Carlsbad, CA 92009, Phone (760) 438-1161. 1. "Draft Biological Technical Report" prepared by Helix Environmental Planning, Inc., May 12, 1998. 2. "Phase 1 Environmental Site Assessment Update, Carlsbad Raceway Property" prepared by MV Environmental Inc., May 8, 1998. 3. "Transportation Analysis for the Carlsbad Raceway Business Park" prepared by Urban Systems Associates, Inc., June 1998. 4. "Preliminary Geotechnical Investigation Proposed Industrial Development Carlsbad Raceway Property" prepared by Vinje & Middleton Engineering, Inc., August 26, 1997. 5. "Final Master EIR for the City of Carlsbad General Plan Update", March 1994. PROJECT DESCRIPTION/EXPLANATION PROJECT NAME: CARLSBAD RACEWAY BUSINESS PARK APPLICANT NAME: HOFMAN PLANNING ASSOCIATES Please describe fully the proposed project by application type. Include any details necessary to adequately explain the scope and/or operation of the proposed project. You may also include any background information and supporting statements regarding the reasons for, or appropriateness of, the application. Use an addendum sheet if necessary. Description/Explanation: The Carlsbad Raceway Property is located north of Palomar Airport Road and west of Business Park Road. Existing development in the vicinity of the property includes light industrial land uses to the east and light industrial and office development to the north. The area immediately south of the property is currently undeveloped. The area to the west of the property is currently vacant and contains open space. The property is located within Local Facilities Management Plan Zone 18. The proposed project includes the processing of a Tentative Map, Hillside Development Permit, General Plan Amendment, Local Facilities Management Plan Amendment and an Environmental Impact Assessment Part 1 for the Carlsbad Raceway Business Park. The proposed Tentative Map will allow for the subdivision of 146.3 acre site into 24 industrial lots and 3 open space lots. A General Plan Amendment is required because the General Plan designation for this property is a split designation of Planned Industrial / Office. The General Plan Amendment would amend this designation to Planned Industrial only. The Carlsbad Municipal Code requires that a Hillside Development Permit be processed with this application since grading wit)^ occur on slopes in excess of 15' in height and 15% slope. The project will have 1,195,000 cubic yards of cut, 1,270,000 cubic yards of fill necessitating 75,000 cubic yards of import. Site access will be provided by a two lane east-west roadway (Poinsettia Boulevard). Access at the eastern end of the property would be from Business Park Road and Melrose Drive from the western end. In conformance with the goals of Carlsbad's Habitat Management Plan, a key north-south wildlife corridor is proposed for this project. This corridor would provide a link between existing open space on the Rancho Carrillo project to the south and open space to the north of this site. Additional open space would be provided along the northern portions of the site and off site to the north and northwest. DISCLOSURE STATEMENT Applicant's statement or disclosure of certain ownership interests on all applications which will require discretionary action on the part of the City Council or any appointed Board, Commission or Committee. The following information MUST be disclosed at the time of application submittal. Your project cannot be reviewed until this information is completed. Please print. Note: Person is defined as "Any individual, firm, co-partnership, joint venture, association, social club, fraternal organization, corporation, estate, trust, receiver, syndicate, in this and any other county, city and county, city municipality, district or other political subdivision or any other group or combination acting as a unit." Agents may sign this document; however, the legal name and entity of the applicant and property owner must be provided below. 1. APPLICANT (Not the applicant's agent) Provide the COMPLETE, LEGAL names and addresses of ALL persons having a financial interest in the application. If the applicant includes a corporation or partnership, include the names, title, addresses of all individuals owning more than 10% of the shares. IF NO INDIVIDUALS OWN MORE THAN 10% OF THE SHARES, PLEASE INDICATE NON- APPLICABLE (N/A) IN THE SPACE BELOW If a publicly-owned corporation, include the names, titles, and addresses of the corporate officers. (A separate page may be attached if necessary.) Person Corp/Part Raceway Properties. LLC Title Title Address Address 12672 Caminito Radiante San Diego, CA92130 OWNER (Not the owner's agent) Provide the COMPLETE, LEGAL names and addresses of ALL persons having any ownership interest in the property involved. Also, provide the nature of the legal ownership (i.e, partnership, tenants in common, non-profit, corporation, etc.). If the ownership includes a corporation or partnership, include the names, title, addresses of all individuals owning more than 10% of the shares. IF NO INDIVIDUALS OWN MORE THAN 10% OF THE SHARES, PLEASE INDICATE NON-APPLICABLE (N/A) IN THE SPACE BELOW. If a publicly- owned corporation, include the names, titles, and addresses of the corporate officers. (A separate page may be attached if necessary.) Person Corp/Part Raceway Properties. LLC Title Title Address Address 12672 Caminito Radiante San Diego. CA 92130 1635 Faraday Avenue • Carlsbad, CA 92008-7314 • (760) 602-4600 • FAX (760) 602-8559 ITJ) NON-PROFIT ORGANIZATION OR TRUST If any person identified pursuant to (1) or (2) above is a nonprofit organization or a trust, list the names and addresses of ANY person serving as an officer or director of the non-profit organization or as trustee or beneficiary of the. Non Profit/Trust N/A Non Profit/Trust N/A Title Title Address Address Have you had more than $250 worth of business transacted with any member of City staff, Boards, Commissions, Committees and/or Council within the past twelve (12) months? Yes Sc_No If yes, please indicate person(s):_ NOTE: Attach additional sheets if necessarv. I certify that all the above information is true and correct to the best of my knowledge. SEE ADDENDUM SEE ADDENDUM Signature of owner/date Signature of applicant/date Print or type name of owner Print or type name of applicant Signature of owner/applicant's agent if applicable/date Print or type name of owner/applicant's agent H:ADMIN\COUNTER\DISCLOSURE STATEMENT 5/98 Page 2 of 2 SENT BY: KURTIN PROPERTIES; -07/06/2031 10:35 619288311 0567937977; JUL-6-01 10:05AM- DENTT/SCIACCA PAGE 2/2 PAGE B4 DISCLOSURE STATEMENT ADDENDUM For Raceway Properties, LLC Raceway Properties, LLC is owned by the following individuals: ToddKurtirt-25% Bruce ElietT-25% JonKurtin-162/3% Richard Dentt-162/3% Frank Sciacca - 16 2/3% We certify that all the above information is true and correct to the best of our knowledge. Signature of owner/applicant Date Signature of owner/applicant Date ToddKurtin Prim or type name of owner/applicant Bruce Elieff Print or type name of owner/applicant Jon Kunin Date Print or type name of owner/applicant Frank Sciacca Print or type name of owner/applicant Signature of owner/applicant Richard Dentt Date Print or type name of owner/applicant SENf BY: KURTIN PROPERTIES; • 07/06/2001 10:35 619288^9 8587937977; DENTTVSCIACCA PAC* w T DISCLOSURE STATEMENT ADDENDUM For Raceway Properties, IXC Raceway Properties, LLC is owned by the following individuals: ToddKurtJn-25% Bruce Elieff- 25% JonKurtiri~162/3% Richard Dentt -16 2/3% Frank Sciacca-16 2/3% We certify that all ihe above information is true and correct to the best of our knowledge. W,/ik^ rt/oi Signature of ov^er/applicant Date Signature of owner/applicant Date Todd Kwrtin Prim or type name-cf owner/applicartt Bruce Elieff Print or type name of owner/applicant A/o/ Jon Kurtin Date Print or type name of owner/applicant Signature of owner/applicant Richard Dentt Date Print or type name of owuer/appHcact Signature of owner/applicant Date Frank Sciacca Print or type name of owner/applicant 07/0&/2001 16:08 61928031B9 DENTT/SCIACCA PAGE 04 DISCLOSURE STATEMENT ADDENDUM For Raceway Properties, LLC Raceway Properties, LLC is owned by the following individuals: ToddKurtin-25% Bruce Elieff-25% JonKurtin-162/3% Richard Dentt-16 2/3% Frank Sciacca-162/3% We certify that all the above information is true and correct to the best of our knowledge. Signature of owner/applicant Date Signature of owner/applicant Date Todd Kurtiri Print or type name of owner/applicant Bruce Elieff Print or type name of owner/applicant Signature of owner/applicant Date Signature of owner/applicant Date Jon Kurtin Print or type name of owner/applicant Richard Dentt Print or type name of owner/applicant Signature of owner/applicant Date Frank Sciacca Print or type name of owner/applicant City of Carlsbad ff- HUMI^^Bi^B^^HM^VBMMB^^^^^^^^^^^^^MPlanning Department DISCLOSURE STATEMENT Applicant's statement or disclosure of certain ownership interests on all applications which will require discretionary action on the part of the City Council or any appointed Board, Commission or Committee. The following information MUST be disclosed at the time of application submittal. Your project cannot be reviewed until this information is completed. Please print. Note: Person is defined as "Any individual, firm, co-partnership, joint venture, association, social club, fraternal organization, corporation, estate, trust, receiver, syndicate, in this and any other county, city and county,- city municipality, district or other political subdivision or any other group or combination acting as a unit" Agents may sign this document; however, the legal name and entity of the applicant and property owner must be provided below. 1. 2. APPLICANT (Not the applicant's agent) Provide the COMPLETE. LEGAL names and addresses of ALL persons having a financial interest in the application. If the applicant includes a corporation or partnership, include the names, title, addresses of all individuals owning more than 10% of the shares. IF NO INDIVIDUALS OWN MORE THAN 10% OF THE SHARES, PLEASE INDICATE NON- APPLICABLE (N/A) IN THE SPACE BELOW If a publicly-owned corporation, include the names, titles, and addresses of the corporate officers. (A separate page may be attached if necessary.) Person AlVg-tA ZToi\e.S Corp/Part FevAo* H*c&uJa.M , Title XK'ce. ?/e5.'A&^V Title H ^>gfc F^"^ Address "7 5" 8 6 Address OWNER (Not the owner's agent) Provide the COMPLETE. LEGAL names and addresses of ALL persons having any ownership interest in the property involved. Also, provide the nature of the legal ownership (i.e, partnership, tenants in common, non-profit, corporation, etc.). If the ownership includes a corporation or partnership, include the names, title, addresses of all individuals owning more than 10% of the shares. IF NO INDIVIDUALS OWN MORE THAN 10% OF THE SHARES, PLEASE INDICATE NON-APPLICABLE (N/A) IN THE SPACE BELOW. If a publicly- owned corporation, include the names, titles, and addresses of the corporate officers. (A separate page may be attached if necessary.) Person, Title Corp/Part_ Title Address Address vW \\ovcVe_ « * 1635 Faraday Avenue - Carlsbad, CA 92008-7314 - (76O) 602-46OO - FAX (760) 602-8559 NON-PROFIT ORGANIZATION OR TRUST If any person identified pursuant to (1) or (2) above is a nonprofit organization or a trust, list the names and addresses of ANY person serving as an officer or director of the non-profit organization or as trustee or beneficiary of the. Non Profit/Trust Non Profit/Trust Title Title Address _____ Address 4. Have you had more than $250 worth of business transacted with any member of City staff, Boards, Commissions, Committees and/or Council within the past twelve (12) months? Yes |X| No If yes, please indicate person(s):. NOTE: Attach additional sheets if necessary. I certify that all the above information is true and correct to the best of my knowledge. /o Signature o/^wner/date SijgrJature of^pplicant/date ' M-le* M. Print or type name of owner Print or type name of applicant Signature of owner/applicant's agent if applicable/date Print or type name of owner/applicant's agent H:ADMIN\COUNTER\DISCLOSURE STATEMENT 5/98 Page 2 of 2 CITY OF CARLSBAD - ENGINEERING DEPARTMENT APPLICATION ENGINEERING PLAN CHECK Complete aU appropriate information. Write N/A when not applicable. PROJECT NAME: Carlsbad Raceway _ PROJECT DESCRIPTION: An extension of an existing Tentative MAp, CT 98-10 A 147.1 acre Industrial subdivision PROJECT ADDRESS: 1400' south of Palomar Airport Rd on the oenterline of El Camino Real LOTNC(S).: 1-28 MAP NO.; CT 98-10 APN(S).: 211-011-03,04,05 .4 221-010-22 NUMBER OF LOTS: 28 NUMBER OF ACRES: 147.1 FSFOWNER:I&JF Carlsbad' Mailing Address: 717 Harwood St., St. 2100 Dallas, TX 75201 Phone Number: 21 j-754-8462 Fax Number. 214-754-8402 E-Maif:{phillghudson-advisors.cora I cartliy that t am the legal owner and tfiae all the information is irue and COITOCC to the Best oC my Knowledge. Signature:Date: ^- APPLICANT: Mailing Address: Phone Number' Fax Number: E-Mail: Hofina.fi Planning Associates 5900 Pasteur Ct., St. 150 Carlsbad, CA 92008 760-438-1 465 760-438-2443 hhrvfTranflhofrAnl arm n« ^ Signature:Date:t -( CWIL ENGINEER: Tim Carroll FIRM: O'Day Consultants Mailing Address: 2710 Loker Ave.f St. 100 SOILS ENGINEER: Malra rTRM: Mailing Address: Viirie & Middleton 2450 Vineyard Ave., St. 10 Carlsbad, CA 92008 Phone Number: 760-931 -7700 Fax Number: 760-931-8680 E-Mail: tiirc^odayconsult^nts .com State Registration Number: 55381 ADDITIONAL COMMENTS; <^j&e Exy-rS/T VA Escondido, CA 92025 • Phone Number: 760-743-1 21 4 Fax Number: 760.-941 -7928 E-Mail: State Registration Number: < \ 4 t IMPROVEMENT VALUATION 1. What water district is the proposed project located in? (check one) ^Carlsbad Municipal water District Qoiivenhain Qvallecitos 2, If in the Carlsbad Municipal Water District, what is the total cose estimate. Including fte 15% contingency fee, for water and rudalmad water improvement*, wwer (for Carlsbad Municipal Water District only)/ street, public (median) landscap* and Irrigation, and drainage Improvements Ctf applicable)? L GRADING QUANTITIES remedial 394,0000/ import 146,OOP export City of Carlsbad 1635 Faraday Avenue Carlsbad CA 92008 Applicant: HOFMAN PLANNING ASSOCIATES Description CT980010 Amount 51 .00 Receipt Number: R0021847 Transaction Date: 07/24/2001 Pay Type Method Description Amount Payment Cash 51.00 Transaction Amount: 51.00 5539 07/24/01 0002 01 02 CGP 51.00 * - O'O^O CITY OF CARLSBAD 1200 CARLSBAD VILLAGE DRIVE CARLSBAD, CALIFORNIA 92008 434-2867 REC'D FROM 4- /> * f fl rn .-./ r^i & rt f- ? / / e A . /. U DATE fc *' / ACCOUNT NO. ; C* Mmc?- • -. ' ~ * - . RECEIPT NO. DESCRIPTION .- ' - ??€'? -QS/04/98 -.£^ AS-cT^ " "' a-nP^I?:m ^i^A f>r ^f-*A ?f> - " •' - NOT VALID UNLESS VALIDATED BY TOTAL AMOUNT 0001 01 02 "U.S (^&Q3- i 107 O> 1 ^10 (YJ 5D (7) ' U.A675d I Printed on recycled paper.CASH REGISTER PLEASE NOTE: Time limits on the processing of discretionary projects established by state law do not start until a project application is deemed complete by the City. The City has 30 calendar days from the date of application submittal to determine whether an application is complete or incomplete. Within 30 days of submittal of this application you will receive a letter stating whether this application is complete or incomplete. If it is incomplete, the letter will state what is needed to make this application comcfHete. When the application is complete, the processing period will start upon j^ 0Jate of the completion letter. Applicant Signature: Staff Signature: Date: (9' W To be stapled with receipt to application Copy for file City of Carlsbad 1635 Faraday Avenue Carlsbad CA 92008 Applicant: HOFFMAN PLANNING Description CT9810X2 Amount I,950.32 Receipt Number: R0043824 Transaction Date: 07/19/2004 Pay Type Method Description Payment Payment Check Check Amount 3482 50.32 1132 1,900.00 Transaction Amount: 1,950.32 6919 07/19/04 0002 01 02 CGP 1950-32 I I City of Carlsbad 1635 Faraday Avenue Carlsbad CA 92008 Applicant: HOFMAN PLANNING ASSOCIATES Description Amount CT980010 1,275.00 Receipt Number: R0022212 691008/09/01000201 02 CGP 1275-00 Transaction Date: 08/09/2001 Pay Type Method Description Amount Payment Check 1317 1,275.00 Transaction Amount: 1,275.00 Hofman Planning Associates Planning Project Management Fiscal Analysis JuneS, 1998 City of Carlsbad - Planning Department 2075 Las Palmas Drive Carlsbad, CA 92009 SUBJECT: CARLSBAD RACEWAY BUSINESS PARK HILLSIDE DEVELOPMENT PERMIT JUSTIFICATION FOR GRADING The proposed development for the Carlsbad Raceway Business Park meets the intent of the Hillside Development Ordinance. Although the total proposed grading exceeds 8,000 cubic yards per acre, we believe modifications to the grading volumes can be justified as allowed under Section 21.95.140 (D) of the Carlsbad Municipal Code. The Hillside Development Ordinance recognizes that non-residential grading may exceed 10,000 cubic yards per acre. This proposed project will exceed 10,000 cubic yards per acre by 3,500 cubic yards per acre for a total of 13,500 cubic yards per acre. The proposed Tentative Map will allow for the subdivision of 146.3 acre site into 24 industrial lots and 3 open space lots. This is consistent with the General Plan designation of Planned Industrial and zoning for P-M (Planned Industrial) uses. The 24 industrial lots must be large, flat pads to support intended uses. Large, flat pads are also required for parking lots to service the industrial lots. As shown by the Hillside Development Permit exhibits, 43.6% of the proposed project site has been previously graded to accommodate a drag strip / raceway, parking and numerous roads. The existing terrain has been significantly altered by raceway uses and remedial grading will be required to make the site suitable for the intended industrial uses. If you require any additional information or clarification of the information that we have provided, please call me. Sincerely, /? . / / /Jx/ /ififa Bill Hofman 0 BH:HL cc: Jon Kurtin 2386 Faraday Avenue <• Suite 120 ° Carlsbad • CA 92008 « (619)438-1465 • Fax: (619)438-2443 f STATEMENT OF AGREEMENT TENTATIVE SUBDIVISION MAP CITY OF CARLSBAD The Subdivision Map Act and the Carlsbad Municipal Code sets a fifty (50) day time restriction on Planning Commission processing of Tentative Maps and a thirty (30) day time limit for City Council action. These time limits can only be extended by the mutual concurrence of the applicant and the City. By accepting applications for Tentative Maps concurrently with applications for other approvals which are prerequisites to the map; i.e., Environmental Assessment, Environmental Impact Report, Condominium Plan, Planned Unit Development, etc., the fifty (50) day time limits and the thirty (30) day time limits are often exceeded. If you wish to have your application processed concurrently, this agreement must be signed by the applicant or his agent. If you choose not to sign the statement, the City will not accept your application for the Tentative Map until all prior necessary entitlements have been processed and approved. The undersigned understands that the processing time required by the City may exceed the time limits, therefore the undersigned agrees to extend the time limits for Planning Commission and City Council action and fully concurs with any extensions of time up to one year from the date the application was accepted as complete to properly review all of the applications. Signature / Date Name (Print) Relationship to Application (Property Owner-Agent) FRM0037 2/96 City of Carlsbad Planning Department DISCLOSURE STATEMENT Applicant's statement or disclosure of certain ownership interests on all applications which will require discretionary action on the part of the City Council or any appointed Board, Commission or Committee. The following information MUST be disclosed at the time of application submittal. Your project cannot be reviewed until this information is completed. Please print. Note: Person is defined as "Any individual, firm, co-partnership, joint venture, association, social club, fraternal organization, corporation, estate, trust, receiver, syndicate, in this and any other county, city and county, city municipality, district or other political subdivision or any other group or combination acting as a unit." Agents may sign this document; however, the legal name.and entity of the applicant and property owner must be provided below. 1 . APPLICANT (Not the applicant's agent) Provide the COMPLETE. LEGAL names and addresses of ALL persons having a financial interest in the application. If the applicant includes a corporation or partnership, include the names, title, addresses of all individuals owning more than 10% of the shares. IF NO INDIVIDUALS OWN MORE THAN 10% OF THE SHARES, PLEASE INDICATE NON- APPLICABLE (N/A) IN THE SPACE BELOW. If a publicly-owned corporation, include the names, titles, and addresses of the corporate officers. (A separate page may be attached if necessary.) Bill Hofman PersonHofman Planning Associates Corp/Part _ PresidentTitle Tjtle AddressAddress 2386 Faraday Ave. _ Ste. 120, Carlsbad, 92008 2 . OWNER (Not the owner ' s agent) Provide the COMPLETE, LEGAL names and addresses of ALL persons having any ownership interest in the property involved. Also, provide the nature of the legal ownership (i.e, partnership, tenants in common, non-profit, corporation, etc.). If the ownership includes a corporation or partnership, include the names, title, addresses of all individuals owning more than 10% of the shares. IF NO INDIVIDUALS OWN MORE THAN 10% OF THE SHARES, PLEASE INDICATE NON-APPLICABLE (N/A) IN THE SPACE BELOW. If a publicly- owned corporation, include the names, titles, and addresses of the corporate officers. (A separate page may be attached if necessary.)Jon Kurtin Raceway Properties, LLCPerson Title Corp/Part Title Managing Member Address Address 12750 Carmel County Road Suite 204, San Diego, CA 92130 2O75 Las Palmas Dr. • Carlsbad, CA 92OO9-1576 • (760) 438-1161 • FAX (76O) 438-0894 NON-PROFIT ORGANIZATION OR TRUST If any person identified pursuant to (1) or (2) above is a nonprofit organization or a trust, list the names and addresses of ANY person serving as an officer or director of the non-profit organization or as trustee or beneficiary of the. Non Profit/Trust Non Profit/Trust Title Title Address Address 4. Have you had more than $250 worth of business transacted with any member of City staff. Boards, Commissions, Committees and/or Council within the past twelve (12) months? Yes [ | No If yes, please indicate person(s): NOTE: Attach additional sheets if necessary. I certify tHa\ all the above information is true and correct to the best of my knowledge. Signature of owner/date Signature of applicant/date Print or type name of owner Print or type name of applicant Signature of owner/applicant's agent if applicable/date ""TobJ) ft Print or type name of owner/applicant's agent H:ADMIN\COUNTER\DISCLOSURE STATEMENT 5/98 Page 2 of 2 CITY OF CARLSBAD - DISCLOSURE STATEMENT Carlsbad Raceway Business Park Page 3 (Supplemental) Additional Owners Bruce Elieff, Member 5109 East La Palma Avenue, Suite D Anaheim, CA 92807 Todd Kurtin, Member 5109 East La Palma Avenue, Suite D Anaheim, CA 92807 Frank J. Sciacca, Member 3838 Camino del Rio North, Suite 300 San Diego, CA92108 Richard Dentt, Member 3838 Camino Del Rio North, Suite 300 San Diego, CA92108 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: .rrl^frTtrRECORDING REQUEL-. cD BV LAWYERWTLE Attn: Jon Kurtin 12750 Carmel Country Road, #204 San Diego, CA 92130 1998-0160306 DOC 1*1998-0160306 MAR 24=, 19<?e 4:59 PM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE GREGORY J. SMITH, COUNTY RECORDER 1199 FEES: 11.00 SPACE ABOVE THIS LINE FOR RECORDER'S USE if fillifi iBifr rf jfiiib SACRAMENTO I, BILL JONES, Secretary of State of California, hereby certify: That the annexed transcript of_I page(s) was prepared by and in this office from the record on file, of which it purports to be a copy, and that it is full, true and correct. IN WITNESS WHEREOF, I execute this certificate and affix tke Great Seal of the State of California JAN 2 2 1998 Secretary of State SEC STATE FORM UP 222A (Rev. 8/96) State of California Bill Jones Secretary of State LIMITED LIABILITY COMPANYARTICLES OF ORGANIZATION 1200 LLC-1 IMPORTANT - Read the instructions before completing the form. This document is presented for filing pursuant to Section 17050 of the California Corporations Code. 1. Limited liability company name: (End the name wiIA "LLC" or "Limited Liability Company*. No periods berween the lenen in "LLC". 'Limited* tnd 'Company' may be abbreviated to 'Ltd.* and "Co.") Raceway Properties, LLC 2. Latest date (month/day/year) on which the limited liability company is to dissolve: 12/31/2038 3. The purpose of the limited liability company is to engage in any lawful act or activity for which a limited liability company may be organized under the Beverly-Killea Limited Liability Company Act. 4. Enter the name of initial agent for service of process and check the appropriate provision below: Jon R. Kurtin ., which is [ X ] an individual residing in California. Proceed to Item 5. [ ] a corporation which has filed a certificate pursuant to Section 1505 of the California Corporations Code. Skip Item 5 and proceed to Item 6. 5. If the initial agent for service of process is an individual, enter a business or residential street address in California: Street address: 12750 Carmel Country Road, Suite 204 Chy: San Diego State: CALIFORNIA Zip Code: 92130 6. The limited liability company will be managed by : (check one) [ ] one manager [ X ] more than one manager [ ] limited liability company members 7. If other matters are to be included in the Articles of Organization attach one or more separate pages. Number of pages attached, if any: 0 8. It is hereby declared that I am the person who executed this instrument, which execution is my act and deed. Signature of drganizer Jon R. Kurtin Type or print name of organizer Date:JanuarY 16 .,19 98 LLC-1 Approved by the Secrrury of Slate For Secretary of Slate Use :.r c:qd£ <a me office of the Secretary dSiste' if the State of California JAN 2 0 1998 r-U. 4G?£5. Secretary of Ststs OPERATING AGREEMENT FOR RACEWAY PROPERTIES. LLC This Operating Agreement (the "Agreement") is made and entered into as of the 20th day of January, 1998, by and between JON R, KURTTN, TODD H. KURTIN, BRUCE ELJJEFF, FRANK J. SCIACCA, and RICHARD C. DENTT, whose principal business address is 12750 Carmel Country Road, Suite 204, San Diego California 92130 (collectively, the "Members"). WHEREAS, the parties have agreed to organize a limited liability company named RACEWAY PROPERTIES, LLC (hereinafter referred to as the "Company"); and WHEREAS, this Agreement sets forth the understandings of the parties hereto with respect to the organization and operation of the Company and the scope and conduct of its business. NOW, THEREFORE, in consideration of mutual covenants and other good and valuable consideration, the receipt an'd legal sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. ORGANIZATION. a. Term. The Company shall continue until December 31, 2038, unless the Company is sooner terminated, as herein provided. b. Character of Business: Powers. The Company is formed to transact the business set forth in its Articles of Organization in compliance with the laws of the States of California, codified in the California Corporations Code, Section 17000 et seq. (the "Act"), and, in relation to the transaction of such business, to have and exercise any and all of the powers and rights which a limited liability company may lawfully exercise pursuant to the Act. The Company's ability to incur debt shall be limited to the debt which relates to the initial acquisition financing and subsequent development and construction financing and/or joint venture financing of the Property commonly known as the Carlsbad Raceway, Carlsbad, California, consisting of approximately 146 acres as more particularly described hi Exhibit "A" attached hereto (the "Property") and liabilities in the ordinary course of business relating to the ownership and operation of the Property. The Company shall be prohibited from dissolving, liquidating, consolidating, merging or selling all or substantially all of its assets or amending its Articles of Organization so long as the initial financing for its purchase of the Property remains in place. C:\wpdocs\Jon\MGMI\RACEWAY.OPE; March 10, 1998 c. Certain Definitions. As used herein, the following terms have the following meanings: (1) "Distribution Percentage" means, for each Member, the percentage set forth opposite such Member's name, as follows: Distribution Member Percentage JonR. Kurtin 16 Vb% Todd H. Kurtin 25 % Bruce Elieff 25 % Frank J. Sciacca 16 1/3% Richard C. Dentt 16V3% TOTAL 100.00% "Distribution Percentage." for each Member, also, shall mean each above-mentioned percentage, as may be adjusted from time-to-time, according to the provisions of this Agreement. (2) "Operating Proceeds" for the applicable period means the gross receipts of the Company during such period plus any reductions in funded reserves arising out of the reversal of such reserves, less the following: (a) cash operating expenses paid during such period, (b) interest and principal paid during such period on any indebtedness of the Company, (c) cash expenditures for capital improvements and other capital items paid during such period, and (d) additions to funded reserves made during such period. d. Separateness Covenants. The Company agrees to abide by the following "separateness covenants": ' (1) To maintain its books and records separate from any other person or entity. (2) To maintain its accounts separate from any other person or entity. (3) Not to commingle assets with those of any other entity. (4) To conduct its own business in its own name. (5) To maintain separate financial statements. (6) To pay its own liabilities out of its own funds. (7) To observe all limited liability company formalities. (8) To maintain an arm's-length relationship with its affiliates. (9) To pay the salaries of its own employees and to maintain a sufficient number of employees in light of its contemplated business operations. (10) Not to guarantee or become obligated for the debts of any other entity or hold out its credit as being available to satisfy the obligations of others. (11) Not to acquire obligations or securities of its Members. (12) To allocate fairly and reasonably any overhead for shared office space. (13) To use separate stationery, invoices and checks. (14) Not to pledge its assets for the benefit of any other entity or make any loans or advances to any entity. (15) To hold itself out as a separate entity. (16) To correct any known misunderstanding regarding its separate identity. (17) To maintain adequate capital in light of its contemplated business operations. 2. CAPITAL CONTRIBUTIONS. a. Contributions of Cash. The following Members shall initially contribute to the capital of the Company, in cash, the respective amounts shown opposite their names, as follows: ;. Cash Member Contribution JonR. Kurtin $ 66,667.00 ToddH. Kurtin 100,000.00 Bruce Elieff 100,000.00 Frank J. Sciacca 66,666.00 Richard C. Dentt 66.666.00 TOTAL $400,000.00 b. Contributions of Property. The following Members shall contribute to the capital of the Company the property and assets described for each respective member on Exhibit "B". attached to this Agreement and made a part hereof by this reference, with the respective values shown opposite their names, as follows: Property Member Contribution None None None TOTAL None Note: If "None" is stated above under "Property Contribution" then no Exhibit "B" is attached. c. Credits to Capital Accounts. Each such contributing Member's Capital Account shall be credited with the cash amounts and the values of the property as set forth above. d. No Negative Capital Account Restoration. In no event shall any Member be required to contribute Capital to restore a negative balance in such Member's Capital Account upon the liquidation of the Company or such Member's Interest, or at any other time. 3. DISTRIBUTIONS. The Company's Operating Proceeds shall be distributed to the Members pro rata according to their respective Distribution Percentages, at such times as the Managing Members shall determine by Major Decision Approval (but not less frequently than annually). 4. ALLOCATION OF PROFITS AND LOSSES. a. Profits and Losses. Subject to Section 4.b., the Company's income, gain, loss, deductions and credits (and items thereof), for each fiscal year of the Company, shall be allocated among the Members (for both book and tax purposes) pro rata according to their respective Distribution Percentages. b. Allocations with Respect to Tax Matters. The Members may, by Major Decision Approval, specially allocate (for book and/or tax purposes) items of income, gain, loss and deduction among the Members during any fiscal year of the Company and/or upon the liquidation of a Member's Interest or the liquidation and termination of the Company, so as to cause the Member's Capital Accounts to be consistent with the manner in which they agreed to share distributions hereunder (as reflected in Section 3). 5. ACCOUNTING. a. Accounting Methods and Records. The books and records of the Company shall be kept, and the financial position and the results of its operations recorded, in accordance with generally accepted accounting methods, consistently applied, except that the Members' Capital Accounts shall be maintained as provided in this Agreement. The Company shall be on the cash or accrual basis, as agreed upon by the Members, for both tax and accounting purposes. Jon R. Kurtin is hereby designated as the "tax matters partner" (as such term is defined in Code section 6231 (a)(7)) or the equivalent representative for the Company. b. Fiscal Year. The fiscal year of the Company shall be the calendar year. c. Capital Accounts. A capital account (a "Capital Account") shall be established for each Member and determined, maintained and adjusted in accordance with Treasury Regulations §1.74-l(b)(2)(iv) and in accordance with the provisions of this Agreement. The Capital Accounts of the Member shall be adjusted upon each distribution of property by the Company to a Member to the extent required by and in the manner described in Treasury Regulations §1.704-l(b)(2)(iv)(e). d. 754 Election. In the case of a transfer of an Interest which is permitted by this Agreement and which is made in the manner provided in Code section 743, then upon the request of the transferee of such Interest, the Company shall file an election under Code section 754 in accordance with procedures set forth in the Treasury Regulations applicable thereto. 6. POWERS, RIGHTS AND DUTIES OF MEMBERS. a. Manager's Management Authority and Duties. Jon R. Kurtin and Todd H. Kurtin are the Managing Members of the Company and shall have the right, authority, and responsibility to generally supervise and control the operation and management of the business and affairs of the Company and to perform other duties provided elsewhere in this Agreement to be performed by the Members. No Member other than the Managing Members shall take any action as a Member to bind the Company, and shall indemnify the Company for any costs or damages incurred by the Company as a result of the unauthorized action of such Member. b. Restrictions on Authority of the Managing Members. Notwithstanding the provisions of Section 6.a., no action shall be taken or sum expended or obligation incurred by the Company or the Managing Members with respect to a matter within the scope of the Unanimous Decisions (as defined below) affecting the Company. "Unanimous Decisions" shall include the following: (1) Filing or consenting to the riling of a bankruptcy or insolvency petition or otherwise instituting insolvency proceedings; (2) Dissolving, liquidating, consolidating, merging or selling all or substantially all of the assets of the Company; (3) Engaging in any business activity not specified in the Articles of Organization; and (4) Amending the Company's organizational documents including the Articles of 5 Organization and this Operating Agreement. c. Managing Members' Indemnification. The Managing Members shall not be responsible or accountable in damages or otherwise to the Company or the Members for any action taken or failure to act on behalf of the Company unless such action or omission was an intentional breach of this Agreement or constituted gross negligence, bad faith or wanton or willful misconduct. Except with respect to the foregoing actions or decisions for which a Managing Member is accountable to the Company and the other Members, the Company shall indemnify and hold harmless the Managing Member from any loss, damage, liability or expense incurred or sustained by it by reason of any act performed or any omission for or on behalf of the Company or in furtherance of the business of the Company, including any judgment, award, settlement, reasonable attorneys' fees and other costs and expenses (which may be advanced by the Company) incurred in connection with the defense of any actual or threatened action, proceeding or claim. d. Compensation and Reimbursement of the Members. The Company shall not pay the Managing Members or any other Member any salary or other compensation for acting as Members hereunder or for any service rendered to the Company. The Company shall reimburse the Managing Members or any other Member for all reasonable out-of-pocket expenses incurred by them in connection with the discharge of their obligations under this Agreement or otherwise incurred on behalf of the Company; provided, however, that the Company shall not reimburse the Members for (1) expenses incurred outside of the Company's usual course of business unless such expenses were authorized by unanimous approval of the Members, or (2) any personal expenses. Any disputes as to the reasonableness or nature of expenses submitted by a Member for reimbursement shall be resolved by a majority, by number, of the disinterested Members then entitled to vote and such determination shall be conclusive on all parties. > e. Determination by Members. Notwithstanding anything to the contrary in this Agreement, a determination by those Members owning the requisite Distribution Percentages, as set forth herein, shall be effective whether or not votes are cast at a meeting of Members, or by formal or informal, oral or written instructions of such Members, and such determination so made by the Members authorized to do so shall be effective regardless of the number of Members who may actually vote thereon, or have notice of the proposed determination. In no event shall a Member who is in default under this Agreement at the time a vote is taken or a decision is made be entitled to vote in respect of any act, determination or decision of the Company. 7. TRANSFERS OF INTERESTS. a. Restrictions. Except as provided in Section 7.b., no sale, assignment, exchange, transfer, encumbrance or hypothecation (each a "Transfer"), shall be made by any Member of the whole or any part of his or her interest without the prior written consent of all of the other Members. If any Transfer (other than a Transfer described herein) is purported to be made or suffered without complying with the applicable provisions in this Section, such purported Transfer shall be void ab initio, and an option to purchase such Interest for a Purchase Price equal to the Withdrawal Value shall be deemed to have been granted to the Company as of the date the Company first learns of such purported Transfer. In enforcing this provision, the Company may refuse to transfer any Interest or any claim thereto in addition, and without prejudice, to any and all other rights or remedies which may be available to it and/or the Members. b. Any Member may Transfer (by inter vivos or testamentary disposition) his or her Interest in the Company or any part thereof if such Transfer is made (1) to any Family Member or in the case of a revocable inter vivos trust which is a Member, to the grantor and/or to any Family Member with respect to the grantor, (2) if such Member is a trust, to the beneficiaries of such trust by operation of its governing instrument, (3) to any other Member or Family Member of such other Members, (4) to a trust which has as its beneficiaries only such Member or Family Member(s) of such Member, (5) if such Member is a corporation, limited liability company or partnership, to effect the distribution of its Interest to its shareholders, members or partners (as the case may be), and/or (6) to any partnership, limited liability company or corporation, 100 percent of the beneficial ownership of which is owned, directly or indirectly, by such Member and/or any of the persons ("Permitted Transferees") in (1), (2) or (3) above. For purposes of this Section 7.b., the term "Family Member" shall mean a spouse, child, spouse of a child, grandchild, sister, brother, or parent (each a "Close Relative") of the person in question or a lineal descendant of any such Close Relative. c. Effect of Assignment: Documents. All whole or partial Interests Transferred, pursuant to the provisions of this Article shall be subject to the restrictions and obligations set forth in this Agreement. Unless otherwise agreed by the Members or expressly provided herein, no Transfer permitted hereunder shall relieve the assignor from any of its obligations under this Agreement accruing prior to such Transfer. In the event any Interest is Transferred to any person (other than another Member) in accordance with the provisions set forth in this Section, such purchaser or successor to such Interest (the "Successor") shall succeed to such Interest as an assignee under the Act and shall have no right to become a substitute Member and participate in the management of the business and affairs of the Company; provided, however, that the Successor shall be liable for the obligations of his assignor under this Agreement. A Successor that is not in default under this Agreement (by reason of his or his predecessor's uncured failure to perform any obligation under this Agreement) shall have the right to petition, by written notice to the Company, to become a substitute Member upon the written consent of all of the Members. As additional conditions to the Successor's becoming a substitute Member hereunder, the Successor must execute this Agreement (as amended) and agree to be bound by all of its terms and provisions. Upon the satisfaction of the foregoing conditions, the Member shall become a substituted Member. 8. DISSOLUTION OF THE COMPANY. a. Dissolution Acts. No act, thing, occurrence, event or circumstance shall cause or result in the dissolution of the Company except that, subject to the restriction contained in the last paragraph of Section l.b., the happening of any one of the following events shall work an immediate dissolution of the Company: (1) the sale or other disposition of all or substantially all of the Property; (2) a unanimous written decision of the Members to dissolve and terminate the Company; (3) the termination of the term of the Company pursuant to Section 1 .a. of this Agreement; (4) subject to Section 8.b., the death, retirement, withdrawal, expulsion, or dissolution (each an "Event of Withdrawal") occurring with respect to a Member, or (5) the bankruptcy of both Managing Members. Without limiting the other provisions hereof, neither the assignment of all or any part of a Member's Interest in the Company hereunder nor the admission of a new Member shall work the dissolution of the Company. Except as may be otherwise provided in this Agreement each member agrees that, without the consent of the other Members, a Member may not resign or withdraw from or otherwise cause a voluntary dissolution of the Company and shall be liable to the other Members for any and all damages and expenses (including attorney fees) proximately caused by such resignation, retirement, withdrawal or other voluntary event causing a dissolution of the Company in violation of this Agreement. b. Right to Continue Business and Affairs of Company. Upon the occurrence of an Event of Withdrawal, the withdrawing Member (the "Withdrawing Member") shall give notice thereof to the other Members and, if at least one Member remains, such remaining Member may, within the 90-day period following such occurrence, elect, by written agreement, to continue the business and affairs of the Company for the balance of the term hereof. If the remaining Members so elect to continue the existence of the Company, (1) the Company shall not dissolve and its business and affairs shall be carried on without interruption and without the execution of any confirmatory agreement under the same name and under the same terms and provisions as are set forth in this Agreement (as the same may be amended by the remaining Members), and (2) Company or the remaining Members may redeem or purchase the Withdrawing Member's Interest as provided for an amount equal to the Withdrawal Value of the Withdrawing Member's Interest. If the remaining Members do not so elect to continue the existence of the Company, the Company shall not be permitted to liquidate the Property (except as permitted in the initial financing transaction documents) without the written consent of the holders of such initial financing. The holders of the initial financing may continue to exercise all of their rights under the existing security agreements or mortgages and shall be able to retain the collateral until the 8 initial debt financing has been paid in full or otherwise completely discharged. c. Determination of Withdrawal Value. The withdrawal value (the "Withdrawal Value") of the Member's Interest shall be an amount determined by establishing an amount equivalent to the value to which the Member would be entitled as if the Company had wound up its business and affairs and sold all of its business and assets at Fair Market Value on the last day of the month (the "Valuation Date'^ immediately prior to date of the Event of Withdrawal. The term "Fair Market Value" as used in this Section shall be an amount equal to the value of the Company Property as determined by an appraiser experienced in appraising properties of similar nature to the Company Property, appointed by the joint written direction of the parties executed and delivered to the appraiser within twenty (20) days after the date of the Event of Withdrawal, and if no appraiser is so appointed, then by an appraiser who shall be appointed by William B. Treitler, Esq. or the third party accounting firm then doing the Company's accounting work. The appraisal shall be in writing and when made shall be filed with the Company or the third party accounting firm or the individual retained by the Company to assist in determining the Withdrawal Value. If the Fair Market Value of a Membership Interest is being determined as the result of an Event of Withdrawal, then the Fair Market Value of the Membership Interest of the Member causing such dissolution shall be reduced by any and all damages sustained by the other Members as a result of the Event of Withdrawal. c. Payment of Withdrawal Value. The Purchase Price for an Interest under Section 7.a. or the Withdrawal Value for an Interest under Section 8.c. shall be paid in cash except that, at the option of the Company or the purchasing Member, up to 100 percent of the Purchase Price or Withdrawal Value may be deferred. The deferred portion of the Purchase Price or the Withdrawal Value shall be evidenced by the promissory note (the "Note") of the purchasing party(ies) made payable to the Selling or Withdrawing Member, which Note shall have an interest rate of 8 percent and shall be payable in no more than sixty (60) substantially equal monthly installments. The Note shall be secured by a security agreement (the "Security Agreement") of the purchasing party(ies) in the Member's Membership Interest. So long as a purchasing Member does not default in any of the obligations under the Note, the purchasing Member shall be entitled to vote such interest and to receive all distributions payable thereon. d. The Closing. Unless otherwise agreed by the parties to the Transfer, the closing on the Transfer shall take place thirty (30) days after the receipt of the written appraisal of Fair Market Value and shall take place at the principal offices of the Company. The interest shall be assigned to each purchasing party free and clear of all liens, claims and encumbrances excepting only those for which provision is expressly made in this Agreement, and said Interest shall be transferred on the books and records of the Company to the purchaser or purchasers. Upon the closing of the sale and purchase, the selling and purchasing parties shall execute and deliver to each other the various documents which shall be required to carry out their undertakings hereunder including the payment of cash, the execution and delivery of Notes and Security Agreements and the assignment of the Interest. 9. GENERAL. a. Notices/Approvals to Be in Writing. Any notice, request, approval, consent, demand or other communication required or permitted hereunder shall be given in writing by (1) personal delivery, or (2) national overnight delivery service (e.g. Federal Express) with proof of delivery, or (3) United States Mail, postage prepaid, registered or certified mail, return receipt requested, or (4) prepaid telegram or facsimile or telex (provided that such telegram, facsimile or telex is confirmed by national overnight delivery service or by mail in the manner previously described), sent to the party to whom the communication is directed at the address above, or to such different address as the addressee shall have designated by written notice sent in accordance herewith, and shall be deemed to have been given and received either at the time of personal delivery or, in the case of delivery service or mail, as of the date of first attempted delivery at the address and in the manner provided herein, or in the case of telegram or telex, upon receipt. b. Miscellaneous. (1) This Agreement may be amended by written agreement of amendment executed by all the Members, but not otherwise. Except as herein otherwise specifically provided, this Agreement shall be binding upon and inure to the benefit of the parties and their legal representatives, successors and assigns. Captions contained in this Agreement in no way define, limit or extend the scope or intent of this Agreement. If any provision of this Agreement, or the application of any such provision to any person or circumstance shall be held to be illegal, invalid or unenforceable under present or future laws effective during the term hereof, the remainder of this Agreement, or the application of such provision to any other persons or circumstances, shall not be affected thereby and shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof. (2) If the Company or any party obtains a judgment against any other party by reason of breach of this Agreement or failure to comply with the provisions hereof, a reasonable attorneys' fee as fixed by the court shall be included in such judgment. No waiver by a Managing Member, a Member or the Company of any breach of this Agreement shall be deemed to be a waiver of any other breach of any kind or nature and no acceptance of payment or performance by a Managing Member, a Member or the Company after any such breach shall be deemed to be a waiver of any breach of this 10 Agreement whether or not such Member or the Company knows of such breach at the time it accepts such payment or performance. IN WITNESS WHEREOF, the parties hereto have executed this Operating Agreement of RACEWAY PROPERTIES, LLC as of the day and year first above written. MEMBERS: k Todd H. Kurtin Frank J. Scistcea Richard C. Dentt 11