HomeMy WebLinkAboutKemper Sports Management Inc; 2006-05-10;GOLF COURSE CONSULTING AND GROW-IN SERVICES
TABLE OF CONTENTS
RECITALS 1
ARTICLE I
DEFINITIONS 1-4
ARTICLE II
CONSULTING AND GROW-IN SERVICES 4
2.0 Term. 4
2.1 Meetings and Consulting 4
2.2 Environmental Standards and Actions 4-5
2.3 Market Due Diligence 5
2.4 Golf Course Planning 5
2.5 Golf Course Pre-Opening Marketing 6
2.6 Pre-Opening Operations 6
2.7 Grow-In Services 6
2.8 Pre-Opening Budget 7
2.9 Initial Business Plan 7
ARTICLE III
PROVISIONS AFFECTING SERVICES 7
3.1 Environmental Remediation 7
3.2 Emergency Expenditures 7
3.3 Other Duties and Prerogative 8
ARTICLE IV
AUTHORITY'S RESPONSIBILITIES 8
4.1 Costs 8
4.2 Security 8
4.3 Golf Course Accounts 8
4.4 Pre-Opening Expense Account 9
4.5 Pre-Opening Payroll Account 9
4.6 Pre-Opening Expenses 9-10
ARTICLE V
FEES AND REIMBURSABLE EXPENSES 11
5.1 Consulting Fees 11
EXHIBITS
ARTICLE VI
INSURANCE 11
6.1 Types of Coverage 11
6.2 Other Insurance Provisions 12
6.3 Insurance Maintained by KSM 13
ARTICLE VII
INDEMNITIES 13
7.0 KSM's Indemnity 13
7.2 Survival 14
ARTICLE VIII
TERMINATION RIGHTS 14
8.1 Termination by Authority 14
8.2 Termination by KSM 15
8.3 Payments Upon Termination 15
8.4 Curing Defaults 15
8.5 Effect of Termination 15
8.6 Remedies Cumulative 15
8.6 Remedies 15-16
ARTICLE IX
TITLE MATTERS: ASSIGNMENT 16
9.1 Ownership of Improvements and Personal Property 16
9.2 No KSM Assignment or Subcontracting 17
9.3 Successors and Assigns 17
9.4 Golf Course Name 17
ARTICLE X
MISCELLANEOUS 17
10.1 Force Majeure Events 17
10.2 Damage or Destruction 18
10.3 Contract Administration 18
10.4 Compliance 19
10.5 Notices 19
10.6 Independent Contractor 20
10.7 Modification and Changes 20
10.8 Entire Understanding and Agreement 20
10.9 Headings 20
10.10 Consents 20
10.11 Survival Covenants 20
10
10.12 Third Parties 20
10.13 Waivers 20
10.14 Applicable Law. Venue: Service of Process 21
10.15 No Presumption Regarding Drafter 21
10.16 Enforceability of Any Provision 21
10.17 Counterparts: Facsimile Signatures 21
10.18 Covenants Against Discrimination 21
10.19 Non-liability of Authority or Authority Officers and Employees 21
10.20 Time of the Essence 21
10.21 Exhibits and Attachments Incorporated 22
10.22 Authority 22
10.23 Authorization to Executive Director 22
10.24 Possessory Interest 22
10.25 Proprietary Information ....22
10.26 Outside Business 22
EXHIBITS
Exhibit B - Habitat Preserve Area 2 pages
Exhibit D - Legal Description of Real Property 2 pages
Exhibit E - Regulatory Permits 39 pages
GOLF COURSE CONSULTING AND GROW-IN SERVICES AGREEMENT
THIS GOLF COURSE CONSULTING AND GROW-IN SERVICES AGREEMENT
(Agreement") is made and entered into this /ffi\lay of ^Ogujv^— .
2006 ("Effective Date") by and between the Carlsbad Public Financing Authority,
California, a public entity and joint powers authority (the "Authority"), and KEMPER
SPORTS MANAGEMENT, INC., an Illinois corporation ("KSM").
RECITALS
A. WHEREAS, the City of Carlsbad, a municipal corporation (the "City"), is the
Owner of certain property located in the city of Carlsbad, California, to be developed as a
municipal golf course; and
B. WHEREAS, the City has leased the golf course property to the Authority which
will be responsible for the development and operation of the public golf course, to be
known as the "Carlsbad Golf Course" located in the City of Carlsbad, California,
consisting of an 18-hole golf course, a driving range, Golf Course Clubhouse, pro shop,
and maintenance facility (collectively, the "Golf Course"); and
C. WHEREAS, the Authority desires to utilize the consulting and grow-in services
of KSM in connection with the construction and development of the Golf Course upon
the terms and conditions set forth in this Agreement; and
D. WHEREAS, the Authority and KSM acknowledge that this Agreement is being
executed prior to the Authority commencing the construction and development of the
Golf Course in anticipation of such construction and development.
NOW THEREFORE, in consideration of the mutual promises and covenants contained
herein, the Authority and KSM hereby agrees as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the respective meanings
indicated below:
1.0 Affiliate - Any and all corporations, partnerships, trusts, and other entities directly or
indirectly controlled by, controlling, or subject to direct or indirect common control of an
entity or person.
1.1 Board of Directors of the Authority - The Board of Directors of the Carlsbad
Public Financing Authority, initially the City Council members and, thereafter as
designated by the Board.
1.2 City - The City of Carlsbad, a municipal corporation.
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1.3 Carlsbad Public Financing Authority (the "Authority") - is a public entity and
joint powers authority whose members are the City of Carlsbad, a municipal corporation
and general law city in the State of California, and the Carlsbad Municipal Water District,
a public agency organized and existing under the Municipal Water Act of 1911, and a
Subsidiary District of the City of Carlsbad.
1.4 City Council - The City Council of the City of Carlsbad.
1.5 Conditional Use Permit - The conditional use permit for the Golf Course approved
by and issued by the City in accordance with the Carlsbad Zoning Code.
1.6 Employee Compensation - The direct salaries and wages paid to or accruing for the
benefit of the management staff and all other persons employed by KSM at the Golf
Course except Key Management Employees as defined in Section 1.15 of this
Agreement, together with all fringe benefits payable to or accruing for the benefit of such
employees, including employer's contribution under the Federal Insurance Contributions
Act ("PICA"), unemployment compensation, or other employment taxes, pension fund
contributions, worker's compensation, group life and accident and health insurance
premiums, profit sharing, retirement, disability and other similar benefits, as determined
by KSM and as set forth in the approved Pre-Opening Budget.
1.7 Environmental Laws - All current and future federal, state, and local statutes,
regulations, ordinances, and rules relating to (i) the emission, discharge, release, or
threatened release of a Hazardous Material into the air, surface water, groundwater, or
land; (ii) the manufacturing, processing, use, generation, treatment, storage, disposal,
transportation, handling, removal, remediation, or investigation of a Hazardous Material;
or (iii) the protection of human health, safety, or the indoor or outdoor environment,
including, without limitation, the Clean Air Act, the Federal Water Pollution Control Act,
the Resource Conservation and Recovery Act, the Comprehensive Environmental
Response, Compensation and Liability Act, the Occupational Safety and Health Act, all
amendments thereto, all regulations promulgated thereunder, and their state or local
statutory and regulatory counterparts.
1.8 Executive Director of Carlsbad Public Financing Authority - The person holding
the position of City Manager of the City of Carlsbad, or his or her authorized designee,
including but not limited to the Project Manager.
1.9 Furnishings and Equipment - All furniture, furnishings, trade fixtures, apparatus
and equipment, including without limitation course maintenance vehicles and equipment,
golf carts, driving range pickers and pullers,. mats, range ball baskets, cash registers,
rental golf clubs and bags, ball washers, benches, uniforms, kitchen equipment,
appliances, china, glassware, silverware, office equipment computers, copy machines,
facsimile machines, telephone systems (not including pay telephones), and other personal
property used in or held in storage for use in the operation of the Golf Course, other than
Operating Inventory.
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12,
1.10 Habitat Preserve Area - As depicted on Exhibit "B" locator map along with legal
descriptions on file with the City Clerk as amended from time to time.
1.11 Hazardous Material - Any solid, liquid, or gaseous substance, chemical,
compound, product, byproduct, waste, or material that is or becomes regulated, defined,
or designated by any applicable federal, state, or local governmental authority or by any
Environmental Law as hazardous, extremely hazardous, imminently hazardous,
dangerous, or toxic, or as a pollutant or contaminant, and shall include, without
limitation, asbestos, polychlorinated biphenyls, and oil, petroleum, petroleum products
and petroleum byproducts.
1.12 Impositions - All taxes and assessments (including without limitation real property
taxes and assessments, possessory interest taxes, and personal property taxes), water,
sewer or other similar rents, rates and charges, levies, license fees, permit fees, inspection
fees and other authorization fees and charges, which at any time may be assessed, levied,
confirmed or imposed on the Golf Course or the operation of the Golf Course.
1.13 Insurance Requirements - All requirements of each insurance policy, and all
orders, rules, regulations and other requirements of the Authority applicable to the Golf
Course or the operation of the Golf Course.
1.14 KSM - Kemper Sports Management, Inc. or any successor in interest under this
Agreement.
1.15 Key Management Employees. The General Manager of the Golf Course shall be
responsible for the day-to-day management and operation of the Golf Course. The name
and telephone number (both home and business) of the General Manager shall be
provided, in writing, to the Executive Director and shall be current at all times. The
General Manager shall be reasonably available during normal working hours to meet with
the Executive Director. After normal working hours, the General Manager shall be
reasonably available to appear at the Golf Course if deemed necessary by the Executive
Director. The Course Superintendent for the Golf Course shall be certified by the Golf
Course Superintendents Association. The Director of Golf for the Golf Course shall be a
current Class "A" member in good standing of the Professional Golf Association or the
Ladies Professional Golf Association. The Executive Director shall have the right to
approve the individuals who KSM intends to hire to fill the positions of General
Manager, Golf Course Superintendent, and Director of Golf and Controller (regardless of
the titles given for such positions by KSM) (collectively, the "Key Management
Employees"), which approval shall not be unreasonably withheld.
1.16 Legal Requirements - All laws, statutes, ordinances, orders, rules, regulations,
permits, licenses, authorizations, directives and requirements of governments and
governmental authorities, which now or hereafter may be applicable to the Golf Course
or the operation of the Golf Course.
1.17 Opening Date - The date the Golf Course is first opened to the public.
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1.18 Operating Year - An Operating Year shall be a twelve (12) month calendar year
during the Term of this Agreement commencing on January 1 and continuing through
and including the following December 31.
1.19 Pre-Opening Expenses - The total of (a) all expenses specifically identified as
"Pre-Opening Expenses" in this Agreement; and (b) all other expenses incurred by KSM
in connection with the Golf Course or this Agreement, which expenses were not
reasonably anticipated by the parties or otherwise provided in this Agreement provided
that, except for emergency expenditures as described in Section 3.2 below, any such
unplanned expense which exceeds Five Thousand Dollars ($5,000.00) must have prior
written approval from the Executive Director. Except as specifically provided herein,
Pre-Opening Expenses shall not include any expenses of KSM's corporate office, or any
services rendered by KSM's corporate offices for or to the Golf Course, or the
compensation of any corporate or regional employee of KSM.
1.20 Project Manager - The individual designated by the Executive Director to serve as
the "Project Manager", or his or her authorized designee.
1.21 Real Property - As designated in the Legal Description as Exhibit "D".
1.22 Technical Advisory Committee ("TAG") - The advisory group required by the
California Coastal Commission Permit with respect to the Golf Course.
1.23 Termination Date - The day prior to the Opening Date.
1.24 Weekends - The period commencing at 12:01 a.m. Friday and ending at 11:59 p.m.
on Sunday.
ARTICLE II
CONSULTING AND GROW-IN SERVICES
2.0 Term. The term of this Agreement shall begin on the Effective Date and terminate
as of the end of the day prior to the Opening Date (the "Term").
2.1 Meetings and Consulting. KSM shall attend meetings and consult with Authority
and designated development team members regarding matters affecting the development
of the Golf Course. KSM shall consult with Authority on all aspects of the development
of the Golf Course, including, but not limited to, the development budget, coordination
with the TAG, Golf Course buildings, interiors, furniture, fixtures and equipment, human
resources, environmental and regulatory permits and approvals held by the Authority and
development of logo and golf course naming related issues
2.2 Environmental Standards and Actions. Authority and KSM agree to set forth
those minimum actions, standards and procedures to be implemented by KSM in its
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15
operation and maintenance of the Real Property in order to meet the environmental
requirements imposed upon the Authority by permits issued for the Golf Course ("the
Permits") by all regulatory agencies including the City, the United States Fish and
Wildlife Service, the California Department of Fish and Game, the California Coastal
Commission, United States Army Corps of Engineers, San Diego Regional Quality
Control Board, and Sempra Energy ("Regulatory Agencies"). KSM hereby covenants to
comply with and implement the minimum actions, standards and procedures consistent
with those imposed by those Permits as contained in Exhibit "C", attached hereto, at all
times in performance of its duties and obligations under this Agreement. Authority
reserves the right, upon prior written notice to KSM, to revise the minimum actions,
standards and procedures to be implemented by KSM in its operation and maintenance of
the Real Property from time to time, to adopt additional requirements for operation and
maintenance of the Real Property, and to enter upon and modify the Real Property, in
order to discharge the Authority's obligations under the Permits. KSM acknowledges that
the Coastal Development Permit for the Golf Course requires the Golf Course operator to
consult with the TAG, a committee comprised of an advisory group conditioned by the
California Coastal Commission, for the purpose of making recommendations on
environmental issues so as to protect the environmentally sensitive habitat adjacent to the
Golf Course. The Authority reserves the right to remove the Habitat Preserve Area from
the scope of this Agreement, or to require KSM to employ persons with expertise in
habitat management subject to the Authority's approval. These services shall continue to
be provided for the term of the Agreement.
2.3 Market Due Diligence. KSM shall review any market analysis prepared for
Authority and shall conduct its own market due diligence to help determine green fee
rates, mix of play, other user charges, and other factors to prepare the Initial Business
Plan.
2.4 Golf Course Planning. KSM shall assist the Authority in golf course, clubhouse
and site planning for the Golf Course, including the following:
• Golf Course Vision. KSM shall work with the Authority to establish the vision
of the Golf Course and consult with the Authority in keeping the remaining
development plans and Initial Business Plan consistent with the vision
established by the Authority. This will also involve development of the Golf
Course brand statement.
• Golf Course. KSM shall work with the golf course architect and the Authority
to help assure that the final design decisions meet the vision that the course will
be "player-friendly" and can be maintained cost-effectively. KSM shall consult
with the Authority on design items such as drainage, irrigation, and grassing.
• Construction Phase. KSM will continue to consult with the City during the
construction phase. KSM will attend meetings and offer advice and opinions to
Authority on a regular basis regarding construction issues, the budget and the
schedule. KSM will work with general contractor in good faith to assure a
seamless turnover of holes to KSM during grow-in phase.
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• Clubhouse. KSM shall consult with the Authority and the clubhouse architect
on the planning and programming of the clubhouse. This work includes
selection and procurement of furniture, fixtures, and equipment, etc. KSM
shall assist the Authority in working with other clubhouse consultants such as
kitchen, pro shop fixtures, and clubhouse interiors.
• Maintenance Building. KSM shall work with the Authority and the building
architect regarding the maintenance building. KSM shall consult on
construction and move-in. Additionally, KSM will work with the Authority in
procuring tools, equipment and supplies so it is ready for grow-in and full-time
operations.
• Site Planning/Front Entry. KSM shall consult with the Authority's site
planning and landscape consultants on the overall site plan, including the area
around the clubhouse and the front entrance.
2.5 Golf Course Pre-Opening Marketing. KSM shall develop a naming, branding and
marketing/sales plan for the Golf Course for the Authority's approval. KSM will
coordinate pre-opening public relations, advertising and marketing activities and shall
manage grand opening events for the Golf Course with the Authority's approval. The
pre-opening marketing campaign would commence once the Authority approves the plan.
KSM shall manage the golf writers and golf course rankings during construction,
including coordination of on-site visits and interviews. KSM's corporate and regional
executives along with on-site operating staff will manage the pre-opening marketing plan
when they are hired.
2.6 Pre-Opening Operations. KSM shall oversee all pre-opening operations to prepare
the Golf Course for the Opening Date, all in accordance with the approved pre-opening
operations plans and budgets, including (i) hiring the general manager and other
clubhouse staff and managing all human resource and employee orientation activities;
assist in establishing bank accounts, etc (ii) managing the clubhouse move-in phase, golf
course set-up, cart procurement and other related pre-opening set-up activities; (iii)
booking future tournaments, outings and events (once a final opening schedule has been
established); and (iv) planning and managing the grand opening event, including media
and approved guests.
2.7 Grow-In Services. KSM shall consult with Authority and make recommendations
regarding the preparations of the golf course for play, including the labor and materials
required in connection therewith (the "Grow-In"). KSM shall manage the Grow-In. In
accordance with Authority's budget requirements, KSM shall procure materials and
supplies necessary for the Grow-In. In accordance with Authority's budget requirements,
KSM shall hire and supervise all employees necessary to oversee and implement the
Grow-In of the Golf Course. The Authority shall have the right to approve the selection
of the Golf Course Superintendent and Assistant Superintendent. All such employees
shall be employees of KSM. All expenses associated with the Grow-In shall be Pre-
Opening Expenses. KSM will deliver within 60 days of the Commencement Date a pre-
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opening Budget and Management Plan including growth-in, marketing and pre-opening
operations.
2.8 Pro-Opening Budget. Within sixty (60) days after the Effective Date, KSM will
create the Pre-Opening Budget that will include all planned non-construction Pre-
Opening Expenses leading up to the Opening Date. The Pre-Opening Budget shall
include, without limitation, Grow-In, pre-opening marketing, pre-opening payroll, pre-
opening clubhouse move-in and operations, inventory procurement, carts, etc. The Pre-
Opening Budget will be approved by the Authority prior to its implementation by KSM.
2.9 Initial Business Plan. Based upon consultation with Authority, KSM shall develop
and submit to Authority, for its review and approval, no later than 180 days prior to the
proposed Opening Date, a preliminary business plan for the Golf Course (the "Business
Plan"), which shall include, without limitation , (i) proposed marketing, sales, promotion,
advertising, and public relations concepts for the Golf Course, (ii) a schedule of proposed
fees and general operating budgets for the Golf Course, and (iii) a description of the
assumptions upon which the Business Plan is based. The Authority shall give its
comments and/or approval of the Business Plan within ninety (90) days after receiving
the Business Plan from KSM. KSM shall not be deemed to have made any guarantee or
warranty in connection with the results of operations or performance set forth in the
Business Plan (or any updated Business Plan delivered during the Term) since the parties
acknowledge that the Business Plan is intended to set forth objectives and goals based
upon KSM's judgment and the facts and circumstances known by KSM at the time of
preparation.
ARTICLE III
PROVISIONS AFFECTING SERVICES
3.1 Environmental Remediation. Throughout the Term, if KSM becomes aware of the
presence of any Hazardous Material in a quantity sufficient to require remediation or
reporting under any Environmental Law in, on or under the Golf Course or if KSM,
Authority, the Golf Course, City or the Golf Course becomes subject to any order of any
federal, state or local agency to investigate, remove, remediate, repair, close, detoxify,
decontaminate or otherwise clean up the Golf Course, KSM shall, at Authority's sole
expense, use all commercially reasonable efforts to carry out and complete any required
investigation, removal, remediation, repair, closure, detoxification, decontamination or
other cleanup of the Golf Course; provided, that such remediation activities shall be at
KSM's expense if such activities are required as a direct consequence of Hazardous
Material being present in, on or under the Golf Course solely as a result of grossly
negligent actions undertaken by KSM.
3.2 Emergency Expenditures. Notwithstanding anything else in this Agreement to the
contrary, in the event, at any time during the Term, a condition should exist in, on, or
about the Golf Course of an emergency nature which, in KSM's sole and absolute
discretion, requires immediate action to preserve and protect the Golf Course, to better
assure the Golf Course's continued operation, or to protect the Golf Course's customers,
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guests, or employees, KSM is authorized to take all steps and to make all reasonable
expenditures necessary to repair and correct any such condition, whether or not
provisions have been made in the applicable Annual Plan for any such expenditures. The
Authority shall be notified of the need for, and estimated amount of, any such emergency
expenditures as soon as reasonably practical.
3.3 Other Duties and Prerogatives. In fulfilling its operational responsibilities
hereunder, KSM shall have all rights ordinarily accorded to a KSM in the ordinary course
of business, including, without limitation, the collection of proceeds from the operation
of the Golf Course, the approval and payment of obligations, and the negotiating and
signing of leases and contracts. KSM shall not be obligated to advance any of its own
funds to or for the account of the Authority nor to incur any financial liability, unless the
Authority shall have furnished KSM with funds necessary for the full discharge thereof.
Further, KSM shall not be obligated to sign any leases or other agreements in KSM's
name. However, if for any reason KSM shall have advanced funds in payment of any
reasonable expense in connection with the maintenance and operation of the Golf Course,
the Authority shall reimburse KSM within a reasonable time upon demand for the full
amount of such payments.
ARTICLE IV
AUTHORITY'S RESPONSIBILITIES
4.1 Costs. The Authority shall have full responsibility for all costs and expenses
associated with the development and construction of the Golf Course.
4.2 Security. The Authority shall provide, or arrange for the provision of, security
for the Golf Course during design, development and construction and Authority will
ensure that the Golf Course are insured to their full replacement value during design,
development and construction.
4.3 Golf Course Accounts. KSM shall assist the Authority in establishing bank
accounts for the Golf Course at a banking institution or institutions reasonably approved
by the Executive Director (which banking institution or institutions shall have branches
located in close proximity to the Golf Course), such accounts to be in the Authority's
name (the "Golf Course Accounts"). Individuals designated and approved in writing by
the Authority as well as City employees designated in writing by the Authority shall
be signatories on the accounts, and the Authority and KSM will not change the
signatories of such accounts or close such accounts without the prior written consent of
Authority. KSM shall assist the Authority in establishing a pre-opening expense account
(the "Pre-Opening Expense Account") and a pre-opening payroll account (the "Payroll
Account"). The Authority shall fund expenses for operations as described in Sections 4.4
and 4.5 below based on the amounts identified in the approved Pre-Opening Budget in
accordance with Section 2.8.
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4.4 Pre-Opening Expense Account. No later than fifteen days after the Effective
Date (and in any event, prior to KSM's incurrence of any Pre-Opening Expenses),
Authority shall remit to KSM for deposit into the Pre-Opening Expense Account the sum
of $50,000 (the "Pre-Opening Expense Minimum"). Authority shall maintain the Pre-
Opening Expense Minimum in the Pre-Opening Expense Account. On a monthly basis,
KSM shall provide Authority with a statement describing the expenses paid for the prior
month. Within five (5) business days after Authority's receipt of such statement from
KSM, Authority shall remit to the Pre-Opening Expense Account the amount set forth in
such statement. Authority may not offset amounts due pursuant to any statement against
the Pre-Opening Expense Minimum. KSM shall pay all such expenses, including without
limitation, the Consulting Fee and any other expenses related to the Golf Course directly
from the Pre-Opening Expense Account.
4.5 Pre-Opening Payroll Account. Commencing prior to the date KSM hires the
first on-site employees for the Golf Course (and in any event, prior to KSM's incurrence
of any payroll expenses), Authority shall remit to KSM for deposit into the Payroll
Account, a sum equal to one month's estimated payroll obligations (as specified in the
approved Pre-Opening Budget) (the "Payroll Expense Minimum"). Authority shall
maintain the Payroll Expense Minimum in the Payroll Account at all times. Thereafter,
on a bi-weekly basis, KSM shall provide Authority with a statement containing the
projected payroll obligations of the Golf Course for the next two-week period. Within
five (5) days after Authority's receipt of such statement from KSM, Authority shall remit
to the Payroll Account the amount set forth in such statement. Authority may not offset
amounts due pursuant to any statement against the Payroll Expense Minimum, as the
Payroll Expense Minimum shall be available solely for payment by KSM of
unanticipated payroll obligations. KSM shall pay payroll obligations directly from the
Payroll Account.
4.6 Pre-Opening Expenses. "Pre-Opening Expenses" shall include all pre-opening
and Grow-In expenses of the Golf Course incurred or paid on behalf of the Authority
during the Term as approved by the Authority in the Pre-Opening Budget or otherwise,
computed on an accrual basis, including, but not limited to, the following items:
(a) Salaries, wages, employee benefits, and payroll expenses, including ADP
fees, payroll taxes, Golf Course profit sharing programs, and insurance for all employees
employed on-site at the Golf Course.during the Term (except for the Key Management
Employees as defined in Section 1.15) (collectively, the "Gross Payroll");
(b) Marketing-, advertising, and promotional expenses;
(c) Purchase and replacement, as necessary, of inventories of maintenance parts
and supplies;
(d) Purchase and replacement, as necessary, of equipment;
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(e) Purchase and replacement, as necessary, of office supplies, computers,
printers, facsimile machines, photocopiers, postage, printing, routine office expenses, and
accounting services incurred for the on-site pre-opening operations of the Golf Course;
(f) The costs of IT third party consultants and other third party consultants
utilized for the Golf Course;
(g) Reasonable travel expenses of on-site employees only incurred
exclusively in connection with the business of the Golf Course;
(h) Accrual of a reserve for insurance (including workers' compensation)
each month in an amount or at a rate that is sufficient to pay such insurance premiums
when they become due and payable;
(i) Insurance premiums to the extent not provided for in the reserve
established therefor;
(j) Auditing, accounting costs, Golf Course computer fees, and legal fees as
approved by the General Counsel for the Authority, incurred in respect of the operation
of the Golf Course, including any reasonable financial management and reasonable
accounting fees paid to third party accounting firms, if included in the Pre-Opening
Budget;
(k) Costs incurred for utilities, including, but not limited to, all electric, gas, and
water costs, and any other private utility charges incurred in connection with the pre-
opening operation of the Golf Course;
(1) Ordinary maintenance and repairs, exclusive of any capital improvements or
capital replacements, which are hereby excluded;
(m) All incidental expenses, as set forth in the approved Pre-Opening Budget,
including those incurred by KSM in providing services under the terms of this Agreement
and reasonable travel for employees employed on-site at the Golf Course while engaged
in performing the obligations of KSM hereunder, air express, costs of recruitment
(including applicable agent's fee), and other incidental expenses included in the Pre-
Opening Budget;
(n) Expenses, including legal fees, damages, awards or other costs involved in
defending employment related lawsuits, charges or claims involving personnel of the
Golf Course; and
(o) All other customary and reasonable expenses incurred in the operation of the
Golf Course in accordance with the Pre-Opening Budget.
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ARTICLE V
FEES AND REIMBURSABLE EXPENSES
5.1 Consulting Fees. During the Term, KSM shall receive as compensation a fixed
fee often thousand dollars ($10,000) per calendar month (to be prorated for any partial
calendar month occurring during the Term) (plus amounts for the salaries of any Key
Management Employees, as defined in Section 1.15) (the "Consulting Fee"). The
Consulting Fee shall be payable by the Authority monthly in advance, no later than the
first day of each calendar month. KSM's out-of-pocket expenses will be reimbursed
within thirty (30) days after monthly submittal for review and processing.
ARTICLE VI
INSURANCE
6.0 Insurance. For the duration of this Agreement, KSM shall procure and maintain, at
a minimum, the following types and amounts of insurance and coverage as described in
this Article VI, all as a Golf Course Expense:
6.1 Types of Coverage:
(a) Workers' Compensation. Coverage in compliance with the Workers'
Compensation Laws of the State of California providing all statutory benefits and
covering all Golf Course employees who are KSM employees.
(b) Commercial General Liability.
(i) Coverage shall include all premises and operations, including but not limited
to, bodily injury, property damage, personal injury, liquor liability, independent
contractors, products and completed operations and contractual liability. The applicable
limits of liability shall be the minimum combined single limit of $10,000,000 per
occurrence.
(ii) The Authority, and its officers, officials, employees, agents, and volunteers,
and the City of Carlsbad, its officers, officials, employees, agents and volunteers, and any
other parties to which the Authority or City is required to have named as additional
insured on insurance related to the Golf Course (provided that such parties are identified
in writing to KSM), shall be named as an additional insured as respects liability arising
out of work or operations performed by or on behalf of KSM.
(c) Automobile Liability. Automobile Liability coverage shall apply to all
automobiles, trucks and other motor vehicles utilized or controlled by KSM in connection
with the Agreement, and shall include all owned, hired and non-owned vehicles in the
amount of $1,000,000 combined single limit per occurrence.
04/24/20061:59PM 11
(d) Property Insurance. Property Insurance covering loss or damages to the
buildings, structures or other improvements, contents, equipment and supplies on a
replacement cost per occurrence basis (except for golf carts that are over five (5) years
old shall be insured on an actual cost value basis) for "all risk", including specifically
irrigation and/or sprinkler system leakage damage, vandalism and malicious mischief.
The Authority shall provide KSM with the appropriate written specifications for all such
property to be insured under such policy. The Authority must notify KSM in writing if
the Authority wants coverage for flood, earthquake or wind damage or else this damage
shall be excluded from coverage.
(e) Direct and Indirect Loss of Earnings. Business Interruption, Loss of Income
and Extra Expense Insurance in such amounts as will reimburse Authority for direct and
indirect loss of earnings attributable to the annual value of lost business in connection
with insured physical damage. Such coverage shall be on an "all risk" basis with
Authority named as the loss payee.
(f) Fidelity Bond. Coverage shall apply to all KSM employees who may handle
funds or property in connection with the Golf Course and shall be in an amount not less
than $300,000.
(g) The coverage required above may be satisfied through a combination of primary
and umbrella or excess liability coverage.
6.2 Other Insurance Provisions:
(a) All insurance as is afforded under this Agreement shall be primary and
without right of contribution from any other policies that are carried or are self-insured by
the Authority or by any Additional Insured with respect to their interest in the Golf
Course. Further, such insurance shall expressly provide that all the provisions thereof,
except limits of liability, shall operate in the same manner as if there were a separate
policy covering each insured.
(b) Authority and/or City shall be named as additional insureds on all
policies on which each is not named as a primary insured to the extent allowed by law.
(c) Within ten (10) business days after execution of this Agreement, KSM
will furnish certificates of insurance and endorsements to Authority evidencing
compliance with the insurance requirements in this Agreement. Authority has the right to
review certified policies as reasonably necessary. Each certificate and endorsement shall
be subject to reasonable approval by Authority and shall provide that such policy shall
not be subject to material alteration to the detriment of Authority or KSM or cancellation
without thirty (30) days' notice in writing to be delivered by registered mail to Authority.
Should any policy expire or be canceled before the expiration of this Agreement and
KSM fail to immediately procure other insurance as specified, Authority reserves the
04/24/20061:59PM 12
right, but shall have no obligation, to procure such insurance. Certificates and
endorsements will be furnished per the Notice requirements in Section 9.2.
(d) Insurance required under this Agreement shall be maintained with California
admitted insurers that carry a minimum Best's Rating of A-VII. If a carrier is non-
admitted, a minimum Best's Rating of A-X shall be required. Coverage shall be from a
surety or insurance company reasonably acceptable to Authority.
6.3 Insurance Maintained by KSM. The parties acknowledge and understand that as
of the Effective Date the following applies to insurance maintained by KSM: (a) Five
Thousand Dollars ($5000.00) deductible per occurrence for property damage insurance,
(b) ZERO Dollars ($0.00) self-insured retention per occurrence for commercial general
liability insurance and automobile liability insurance, and (c) ZERO Dollars ($0.00)
participation in loss limits (which is comparable to self-insurance) per accident for
workers compensation insurance. Authority understands and agrees that with respect to
all policies of insurance required under Sections 3.1, 3.2 and 3.3 the portion of any claim,
loss, or damage subject to a deductible amount or a self-insurance or self-assumption
amount shall be a Golf Course Expense. KSM shall notify Authority in writing at least
thirty (30) days prior to any increase in the deductible amount or self-insured or self-
assumed amounts for the insurance coverage maintained by KSM under this Section 3.3.
The Executive Director shall have the right to approve an increase in the amount of any
deductible.
ARTICLE VII
INDEMNITIES
7.1 KSM's Indemnity. Except as set forth in Section 6.4, KSM agrees to defend
(with legal counsel reasonably satisfactory to the Authority's General Counsel/City
Attorney), indemnify and hold harmless Authority and City and Authority's and City's
officers, officials, members, employees, agents, representatives, and volunteers from and
against any and all claims, demands, actions, lawsuits, proceedings, damages, liabilities,
judgments, penalties, fines, expert witness fees, attorneys' fees, costs, and expenses,
which results from or is connected with one or more of the following:
(i) Any act or omission by KSM or any shareholder, director, officer, or
employee of KSM in connection with KSM's performance under this Agreement
that constitutes negligence or willful misconduct; or
(ii) Any action taken by KSM relating to the Golf Course (i) that is
expressly prohibited by this Agreement, or (ii) that is not within the scope of
KSM's duties under this Agreement, or (iii) that is not within KSM's delegated
authority under this Agreement.
KSM's defense and indemnification obligations under this Section shall not apply to (i)
any acts or omissions taken either at the specific written direction or written approval of
04/24/20061:59PM 13
the Authority, or (ii) the use by KSM of Golf Course trade names, trademarks, logos or
other intellectual property used in connection with the Golf Course, or (ii) claims arising
out of the sole negligence or willful misconduct of Authority, City, or their officers,
officials, members, employees, agents, representatives or volunteers.
7.2 Survival. The defense and indemnification obligations contained in this Article 7
shall survive the expiration or termination of this Agreement for any reason.
ARTICLE VIII
TERMINATION RIGHTS
8.1 Termination by Authority. In addition to any other rights of the Authority to
terminate this Agreement that are set forth in this Agreement, the Authority shall also
have the right to terminate this Agreement upon the occurrence of any of the following
events:
(a) KSM fails to keep, observe or perform any material covenant, agreement, term
or provision of this Agreement to be kept, observed or performed by KSM, and such
default continues for a period of thirty (30) days after written notice of such default by
Authority to KSM; or
(b) (i) KSM applies for or consents to the appointment of a receiver, trustee or
liquidator of KSM or of all or a substantial part of its assets; (ii) KSM files a voluntary
petition in bankruptcy or commences a proceeding seeking reorganization, liquidation, or
an arrangement with creditors; (iii) KSM files an answer admitting the material
allegations of a bankruptcy petition reorganization proceeding, or insolvency proceeding
filed against KSM; (iv) KSM admits in writing its inability to pay its debts as they come
due; (v) KSM makes a general assignment for the benefit of creditors; or (vi) an order,
judgment or decree is entered by a court of competent jurisdiction, on the application of a
creditor, adjudicating KSM a bankrupt or insolvent or approving a petition seeking
reorganization of KSM or appointing a receiver, trustee or liquidator of KSM or of all or
a substantial part of its assets, and such order, judgment or decree continues unstated and
in effect for any period of sixty (60) consecutive days; or
(c) If, following commencement of construction, the Authority determines in its
sole and absolute discretion not to develop the Golf Course, and the Golf Course in not
developed by the Authority, the City or any of their Affiliates or any third party; or
(d) The Planning Commission of the City of Carlsbad, or the City Council, as
applicable, fails to renew approval or conditional approval of the Conditional Use Permit
as required and, therefore, the Golf Course cannot continue to operate; or
The Authority's right to terminate this Agreement pursuant to this Section shall be
exercised upon written notice to KSM given and Authority's termination notice shall
specify the effective date of such termination, which date shall not be less than thirty (30)
04/24/20061:59 PM 14
days after the date of KSM's receipt of Authority's termination notice; provided,
however, that no grace period or thirty (30) day delay shall apply with respect to
terminations pursuant to subparagraphs (c) and (d) of this Section.
8.2 Termination by KSM. KSM shall have the right to terminate this Agreement
upon the following events:
(a) If the Authority fails to keep, observe, or perform any other material covenant,
agreement, term or provision of this Agreement to be kept, observed or performed by
Authority, and such default continues for a period of sixty (60) days after notice of such
default by KSM to Authority, KSM's right to terminate this Agreement pursuant to this
Section 8.2 (a) shall be exercised upon written notice to Authority given at any time after
the applicable grace period has expired. The grace period shall be extended as may be
required for the Board of Directors of the Authority to comply with applicable law
pertaining to the posting of agendas and hearings notices. KSM's termination notice shall
specify the effective date of such termination, which date shall not be less than thirty (30)
days after the date of KSM's termination notice.
(b) The Authority's failure to pay any sums payable under this Agreement
when and as the same shall become due and payable and such failure shall continue for a
period often (10) days after written notice thereof from KSM to the Authority. KSM's
right to terminate this Agreement pursuant to this Section 8.2 (b) shall be exercised upon
written notice to Authority given at any time after the applicable grace period has expired
and shall be effective immediately.
8.3 Payments Upon Termination. Upon expiration or termination of this Agreement,
all sums owed by either party to the other shall be paid within forty-five (45) days of the
effective date of such termination.
8.4 Curing Defaults. Any default by KSM or Authority under the provisions of Sections
8.1 or 8.2 (a), as the case may be, which is susceptible of being cured shall not constitute
a basis for termination of this Agreement if the nature of such default will not permit it to
be cured within the grace period allotted; provided that within such grace period the
alleged party in default shall have given notice of its intent to cure, has commenced to
cure such default, and is proceeding to complete the cure in good faith and with
reasonable diligence.
8.5 Effect of Termination. The termination of this Agreement under the provisions of
this Article 8 shall not affect the rights of the terminating party with respect to any
damages it has suffered as a result of any breach of this Agreement, nor shall it affect the
rights of either party with respect to any liability or claims accrued, or arising out of
events occurring, prior to the date of termination.
8.6 Remedies Cumulative. Neither the right of termination, nor the right to sue for
damages, nor any other remedy available to a party under this Agreement shall be
exclusive of any other remedy given under this Agreement or now or hereafter existing at
law or in equity.
04/24/20061:59PM 15
8.6 Remedies.
A. The Authority's Remedies. Upon the occurrence of an event of default by KSM,
the Authority may:
1. Seek specific performance of KSM's obligations or injunctive relief, as
applicable;
2. Demand payment of all amounts due the Authority under the terms of this
Agreement and demand the payment of all costs, damages, expenses, and
reasonable attorney's fees of the Authority arising due to KSM's event of
default;
3. Proceed to remedy the event of default, and in connection with such
remedy, the Authority may pay all expenses and employ counsel. All
sums so expended or obligations incurred by the Authority in connection
therewith shall be paid by KSM to the Authority upon demand by the
Authority, and on failure of such reimbursement, the Authority may, at the
Authority's option, deduct all costs and expenses incurred in connection
with remedying the event of default from the next sums becoming due to
KSM from the Authority under the terms of this Agreement; and
4. Terminate this Agreement by written notice of termination to KSM. Upon
proper termination of this Agreement, KSM shall surrender occupancy of
the Golf Course to the Authority.
B. KSM Remedies. Upon the occurrence of an event of default by the Authority,
KSM may:
1. Demand payment of all amounts due KSM under the terms of this
Agreement and demand the payment of all costs, damages, expenses, fees
of KSM due to the Authority's event of default;
2. Terminate this Agreement by KSM's written notice of termination to the
Authority. In such event, the Authority shall pay to KSM within sixty
(60) days of termination an amount equal to the total unpaid Consulting
Fees that KSM would have earned had the Agreement remained in effect
until the Termination Date.
ARTICLE IX
TITLE MATTERS: ASSIGNMENT
9.1 Ownership of Improvements and Personal Property. All improvements to the
Golf Course made during the term of this Agreement and all Furnishings and Equipment
04/24/20061.59 PM 16
2.1
and Operating Inventory purchased for the Golf Course during the term of this
Agreement shall be considered property owned by Authority at such time as the
improvements are made or the Furnishings and Equipment or Operating Inventory are
purchased..
9.2 No KSM Assignment or Subcontracting. KSM shall not assign this Agreement,
except to an Affiliate of KSM, or subcontract any work, without the prior written consent
of the Executive Director. Any assignment by KSM, whether or not requiring the prior
consent of Executive Director, shall not be effective unless and until KSM and such
assignee execute an assignment and assumption in a form acceptable to the City
Attorney. It is understood and agreed that any consent granted by the Executive Director
to any such assignment by KSM shall not be deemed a waiver of any consent required
under this Section as to any future assignment. Any assignment by KSM of this
Agreement in violation of the provisions of this Agreement shall be null and void and
shall result in the termination of this Agreement. In addition to any other remedies
available to the parties, the provisions of this Section shall be enforceable by injunctive
proceeding or by suit for specific performance.
9.3 Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the parties and their respective heirs, legal representatives, successors and
assigns.
9.4 Golf Course Name. The Golf Course shall be known by such trade name and/or
trademark or logo as may from time to time be determined by the Authority. The parties
acknowledge and understand that the names, logos, and designs developed or provided
for the Authority and used in the operation of the Golf Course together with appurtenant
goodwill, are the exclusive property of the Authority. KSM may identify the Golf Course
as a golf course managed and operated by KSM; provided, however, that any display of
any KSM logo or other corporate identification shall first be approved by the Executive
Director in his sole discretion.
ARTICLE X
MISCELLANEAOUS
10.1 Force Mai cure Events. As used in this Agreement, the term "Force Majeure
Event" means a disruption in the pre-opening operations of the Golf Course due to, or the
cause of the failure to perform by a party hereto due to, declared or undeclared war,
sabotage, riot or acts of civil disobedience, acts or omissions of governmental agencies
(except acts of governmental agencies including, but not limited to, the Authority taken
in accordance with this Agreement), accidents, fires, explosions, floods, earthquakes, or
other acts of God, strikes, labor disputes, shortages of materials, or any other event not
within the control of KSM and not caused by the gross negligence or intentional wrongful
conduct of KSM. Notwithstanding anything contained herein to the contrary, the
provisions of this Section shall not be applicable to either party's obligation to pay any
04/24/20061:59 PM 17
sums, monies, costs, charges, or expenses required to be paid pursuant to the terms of this
Agreement.
10.2 Damage or Destruction. Should the Golf Course be destroyed or substantially
damaged by fire, flood, acts of God, or other casualty, Authority, by written notice to
KSM given within sixty (60) days following the occurrence of such event, shall have the
right to terminate this Agreement on the basis that Authority does not choose to rebuild
or restore the Golf Course, and in such event neither party shall have any further
obligation to the other party under this Agreement, except with respect to liabilities
accruing, or based upon events occurring, prior to the effective date of such termination
(or, with respect to amounts due KSM, after such date if it is reasonably necessary to
incur additional expenses in the wind-down of operations of the Golf Course). For the
purpose of this Section, the Golf Course shall be deemed to have been substantially
damaged if the estimated length of time required to restore the Golf Course substantially
to its condition and character just prior to the occurrence of such casualty shall be in
excess of six (6) months, as indicated by an architect's certificate or other evidence
reasonably satisfactory to Authority. If this Agreement is not terminated in the event of
damage to the Golf Course either because (i) the damage does not amount to substantial
damage as described above, or (ii) notwithstanding destruction of or substantial damage
to the Golf Course, Authority elects to restore the Golf Course, then Authority shall
proceed, at Authority's own expense, with all due diligence to commence and complete
restoration of the Golf Course to its condition and character just prior to the occurrence of
such casualty.
10.3 Contract Administration. Authority has designated the Executive
Director as the individual who is responsible for administering this Agreement on behalf
of Authority. The Executive Director may designate a member of his or her staff to serve
as the Project Manager, which individual shall carry out the Executive Director's
responsibilities in administering this Agreement. The Executive Director shall inform
KSM in writing of the person who will serve as the Project Manger and any change of the
Project Manager. KSM has designated J. TOBIN DAVIS as the individual who is
responsible for administering this Agreement on behalf of KSM. KSM shall notify the
Executive Director in writing if another individual has replaced the foregoing designated
person as the person responsible for administering this Agreement on behalf of KSM.
The parties acknowledge that except as otherwise expressly provided herein (a) the
Executive Director has the authority to approve or consent to those matters identified in
this Agreement as requiring Authority's approval or consent and to make all other
decisions on behalf of the Authority regarding the administration of this Agreement
(except where the Authority's Board of Directors approval is expressly required herein),
and (b) KSM's foregoing designated person or such other individual designated by KSM
in writing to the Authority has the authority to approve or consent to those matters
identified in this Agreement as requiring KSM's approval or consent and to make all
other decisions on behalf of KSM regarding the administration of this Agreement. The
Authority's management direction to KSM shall be given by the Executive Director.
04/24/20061:59PM IS
10.4 Compliance. KSM shall comply with all applicable laws of governmental bodies
having jurisdiction with respect to the Golf Course site and KSM performance of this
Agreement. KSM shall as a Pre-Opening Expense procure and maintain any necessary
licenses, permits, and approvals required for the performance of its services under this
Agreement. Without the prior written consent of the Executive Director, the actual
amount expended for any Pre-Opening Expense shall not be greater than two percent
(2%) higher than the amount budgeted in the Pre-Opening Budget. Notwithstanding the
foregoing sentence, KSM shall be entitled to make additional expenditures not authorized
under the then applicable Pre-Opening Budget in the event of an emergency pursuant to
the provisions of Section 3.2 or in order to comply with Insurance Requirements or Legal
Requirements.
10.5 Notices. All notices, demands, requests, consents, approvals, replies and other
communications ("Notices") required or permitted by this Agreement shall be in writing
and may be delivered by any one of the following methods: (a) by personal delivery; (b)
by deposit with the United States Postal Service as certified or registered mail return
receipt requested, postage prepaid to the addresses stated below; or (c) by deposit with a
same-day or overnight express delivery service that provides a receipt showing date and
time of delivery. Notice deposited with the United States Postal Service in the manner
described above shall be deemed effective three (3) business days after deposit with the
Postal Service. Notice by same-day or overnight express delivery service shall be
deemed effective upon receipt. Notice by personal delivery shall be deemed effective at
the time of personal delivery.
For purposes of Notices hereunder, the address of Authority shall be:
Carlsbad Public Financing Authority
c/o City Manager of the City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, California 92008
Attention: Executive Director
For purposes of Notices hereunder, the address of KSM shall be:
Kemper Sports Management, Inc.
500 Skokie Blvd., Suite 444
Northbrook, IL 60062
Attention: Steven K. Skinner, President
With a copy to: Kemper Sports Management, Inc.
500 Skokie Blvd., Suite 444
Northbrook, IL 60062
Attention: Corporate Counsel
04/24/20061:59PM 19
Each party shall have the right to designate a different address by the giving of notice in
conformity with this Section.
10.6 Independent Contractor. KSM shall at all times be considered an independent
contractor under this Agreement. Nothing contained in this Agreement shall be construed
to be or create a partnership or joint venture between Authority and its successors and
assigns, on the one part, and KSM and its successors and assigns, on the other part.
10.7 Modification and Changes. This Agreement may be amended or modified only by
a writing signed by both parties.
10.8 Entire Understanding and Agreement. This Agreement constitutes the entire
understanding and agreement between the parties with respect to the management of the
Golf Course and this Agreement supersedes all prior understandings and agreements,
whether written or oral, between Authority and KSM pertaining to the subject matter
hereof.
10.9 Headings. The Article, Section, and Subsection headings contained in this
Agreement are for convenience and reference only and are not intended to define, limit or
describe the scope or intent of any provision of this Agreement.
10.10 Consents. Each party agrees that it will not unreasonably withhold any consent or
approval requested by the other party pursuant to the terms of the Agreement, and that
any such consent or approval shall not be unreasonably delayed or qualified, except
where such consent is expressly stated as within the party's sole and absolute discretion.
Similarly, each party agrees that any provision of this Agreement, which permits such
party to make requests of the other party, shall not be construed to permit the making of
unreasonable requests.
10.11 Survival of Covenants. Any covenant, term, or provision of this Agreement
which in order to be effective must survive the termination of this Agreement shall
survive any such termination.
10.12 Third Parties. None of the obligations under this Agreement of either party shall
run to or be enforceable by any party other than the party to this Agreement or by a party
deriving rights under this Agreement as a result of an assignment permitted pursuant to
the terms of this Agreement.
10.13 Waivers. No failure by KSM or Authority to insist upon the strict performance of
any covenant, agreement, term or condition of this Agreement or to exercise any right or
remedy consequent upon the breach of this Agreement shall constitute a waiver of any
such breach or any subsequent breach of the same covenant, agreement, term or
condition. No covenant, agreement, term or condition of this Agreement and no breach
of this Agreement shall be waived, altered or modified except by a written instrument. A
waiver of any breach of this Agreement shall only affect this Agreement to the extent of
04/24/20061:59PM 20
31
the specific waiver, and all covenants, agreements, terms and conditions of this
Agreement shall continue in full force and effect.
10.14 Applicable Law. Venue; Service of Process. This Agreement shall be construed
and interpreted in accordance with, and shall be governed by, the laws of the State of
California. The parties agree that the Superior Court of the State of California, County of
San Diego shall have jurisdiction of any litigation between the parties relating to this
Agreement. Service of process on Authority shall be affected in such manner as required
by California law for service on public entities. Service of process on KSM shall be made
in any manner permitted by California law.
10.15 No Presumption Regarding Drafter. Authority and KSM acknowledge and
agree that the terms and provisions of this Agreement have been negotiated and discussed
between Authority and KSM, and that this Agreement reflects their mutual agreement
regarding the subject matter of this Agreement. Because of the nature of such
negotiations and discussions, it would be inappropriate to deem either Authority or KSM
to be the drafter of this Agreement, and therefore no presumption for or against the
drafter shall be applicable in interpreting or enforcing this Agreement.
10.16 Enforceability of Any Provision. If any term, condition, covenant or obligation
of this Agreement shall be determined to be unenforceable, invalid, or void, such
determination shall not affect, impair, invalidate, or render unenforceable any other term,
condition, covenant, or obligation of this Agreement . All amounts payable pursuant to
this Agreement shall be in lawful money of the United States of America.
10.17 Counterparts; Facsimile Signatures. This Agreement and any amendment may
be executed in counterparts, and upon all counterparts being so executed each such
counterpart shall be considered as an original of this Agreement or any amendment and
all counterparts shall be considered together as one agreement. Facsimile signatures shall
be as effective as an original signature.
10.18 Covenants Against Discrimination. KSM agrees that in connection with its
performance under this Agreement, there shall be no discrimination by KSM against any
person on account of race, color, creed, religion, sex, marital status, national origin or
ancestry. KSM agrees to include a provision similar to this Section in all subcontracts
entered into by KSM in connection with work being performed under this Agreement.
10.19 Non-liability of Authority or Authority Officers and Employees. No officer,
official, employee, agent, representative, or volunteer of the Authority, or City shall be
personally liable to KSM, or any successor in interest, in the event of any default or
breach by the Authority, or for any amount which may become due to KSM or any
successor, or for breach of any obligation of the terms of this Agreement.
10.20 Time of the Essence. Time is of the essence of this Agreement. The parties
understand that the time for performance of each obligation has been the subject of
negotiation by the parties.
04/24/20061:59PM 21
10.21 Exhibits and Attachments Incorporated. All exhibits and attachments to this
Agreement are incorporated herein and made a part hereof.
10.22 Authority. The parties represent for themselves that (a) such party is duly
organized and validly existing, (b) the person or persons executing this Agreement on
behalf of such party is/are duly authorized to execute and deliver this Agreement on
behalf of such party, (c) by so executing this Agreement, such party is formally bound to
the terms and provisions of this Agreement, and (d) the execution of this Agreement does
not violate any provision of any other agreement to which such party is bound.
Additionally, the Authority represents and warrants to KSM that (i) the Authority has and
will retain the property interests in the Golf Course necessary to enable KSM to perform
its duties pursuant to this Agreement peaceably and quietly; and (ii) that KSM's
performance of the services required by this Agreement shall not violate the property
rights or interests of any third party.
10.23 Authorization to Executive Director. In addition to such other authorizations
granted to the Executive Director of Authority in this Agreement to act on behalf of
Authority, the Executive Director shall have the authority, in the event of a dispute
involving the interpretation of the terms and provisions of this Agreement, to reasonably
interpret the terms and provisions of this Agreement on behalf of Authority.
10.24 Possessory Interest. Pursuant to California Revenue and Taxation Code Section
107.6, Authority hereby informs KSM that this Agreement may create a possessory
interest subject to property taxation, and in such event KSM may be subject to the
payment of property taxes levied on such interest.
10.25 Proprietary Information. All specifically identifiable information developed by
KSM for the Authority at the expense of the Authority shall be the property of the
Authority. All information, materials, concepts, software programs and technology
developed by KSM at KSM's expense, shall be the exclusive property of KSM and
neither the Authority nor any of its affiliates or successors may use, copy or disclose such
proprietary information without the advance written consent of KSM. The obligations
and restrictions contained in this Section shall survive the expiration or termination of
this Agreement for any reason.
10.26 Outside Business. Nothing contained in this Agreement shall be construed to
restrict or prevent, in any manner, any party or any party's affiliates, parent corporations,
or representatives or principals from engaging in any other businesses or investments, nor
shall the Authority or KSM have any right to share or participate in any such other
businesses or investments of the other party.
04/24/20061:59PM 22
IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as
of the day and year first written above.
CONTRACTOR: KEMPER SPORTS
MANAGEMENT, INC., an Illinois
Corporation
CARLSBAD PUBLIC FINANCING
AUTHORITY, a Public Entity and Joint
Powers Authority
(print name/title)
President of the Board
ATTEST:
E.
(print name/title)
FJORRAINE M. WOOF/
Secretary ^Q--'^i«r
£x$uaM
5™J
If required by Authority, proper notarial acknowledgment of execution by
contractor must be attached. If a Corporation, Agreement must be signed by one
corporate officer from each of the following two groups.
*Group A.
Chairman,
President, or
Vice-President
**Group B.
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or
assistant secretary under corporate seal empowering the officer(s) signing to bind
the corporation.
EXHIBITS:
Exhibit B - Habitat Preserve Area
Exhibit D - Legal Description of Real Property
Exhibit E - Regulatory Permits
05/03/200612:04 PM
EXHIBIT B
EXHIBIT "D"
LEGAL DESCRIPTION
OF
CITY OF CARLSBAD GOLF COURSE PROPERTY
LOTS 50 THROUGH 76 INCLUSIVE OF CARLSBAD TRACT NO. 81-46 UNIT NO. 3,
ACCORDING TO MAP THEREOF NO. 11289, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY ON JULY 16, 1985, TOGETHER WITH THAT
PORTION OF CARRIER AVENUE, SWIFT PLACE, PALOMAR OAKS WAY, COLLEGE
BOULEVARD AND OTIS COURT AS DEDICATED ON SAID MAP NO. 11289, WHICH
UPON CLOSING WOULD REVERT TO BY OPERATION OF LAW TO SAID LOTS; ALSO
THAT CERTAIN LOT DESIGNATED AS "REMAINDER PARCEL" ON SAID MAP 11289;
ALSO, LOTS I THROUGH 26 OF CARLSBAD TRACT NO. 85-17, ACCORDING TO MAP
THEREOF NO. 12903, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN
DIEGO COUNTY ON DECEMBER 13, 1991, TOGETHER WITH THAT PORTION OF
COLLEGE BOULEVARD, ROCKEFELLER ROAD, CARNEGIE COURT, GETTY PLACE,
HAMMER COURT, PALOMAR AIRPORT ROAD AND HIDDEN VALLEY ROAD AS
DEDICATED ON SAID MAP NO. 12903, WHICH UPON CLOSING WOULD REVERT BY
OPERATION OF LAW TO SAID LOTS; ALSO, A PARCEL OF LAND BEING A PORTION
OF LOT F AND A PORTION OF LOT G OF RANCHO AGUA HEDIONDA, ACCORDING
TO PARTITION MAP THEREOF NO. 823 FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, NOVEMBER 16, 1896; BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT POINT 9 OF SAID LOT
F; THENCE N.0029'11"W. ALONG THE WESTERLY BOUNDARY OF SAID LOT F,
167.78 FEET TO A POINT ON THE ARC OF A NONTANGENT 58.00 FOOT RADIUS
CURVE, CONCAVE WESTERLY, A RADIAL LINE TO SAID POINT BEARS
S.55°03'22"E.; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A
CENTRAL ANGLE OF 7051'37", A DISTANCE OF 71.73 FEET TO SAID WESTERLY
BOUNDARY; THENCE N.0029'11"W., 2092.42 FEET TO POINT 8 OF SAID LOT F;
THENCE N.06°47'51"E., 1219.60 FEET TO A POINT ON THE NORTHERLY LINE OF SAID
LOT E, DISTANT S.87°23'24"E., 2025.08 FEET FROM POINT 6 OF SAID LOT F; THENCE
S.87°23'24"E. 2417.19 FEET TO THE NORTHWEST CORNER OF THE LAND DESCRIBED
IN DEED TO HOWARD G. KIRGIS, ET UX., RECORDED SEPTEMBER 24,1957 IN BOOK
6761, PAGE 197 OF OFFICIAL RECORDS; THENCE S.02°36'36"W., 740.00 FEET TO THE
SOUTHWEST CORNER OF SAID KIRGIS PROPERTY; THENCE S.87°23'24"E., 1378.84
FEET TO THE SOUTHEAST CORNER OF SAID KIRGIS PROPERTY; THENCE
S.1058'35"E., 1394.10 FEET TO POINT 14 OF SAID LOT F; BEING THE MOST
NORTHERLY CORNER OF LAND DESCRIBED IN DEED TO S.L. KELLY, RECORDED
FEBRUARY 3,1961, AS FILE NO. 202293 OF OFFICIAL RECORDS; THENCE ALONG
THE NORTHEASTERLY LINE OF SAID KELLY'S LAND S.51°01'58"E., 1042.27 FEET;
THENCE S.38°58'02"W., 288.57 FEET; THENCE N.51°01'58"W. 152.00 FEET, THENCE
S.38°58'02"W. 152.00 FEET; THENCE N.51°01'58"W. 1089.27 FEET TO A POINT ON THE
LOT LINE BETWEEN POINT 13 AND POINT 14 OF SAID LOT F; THENCE S.63°14'04"W.
ALONG SAID LOT LINE 564.30 FEET TO SAID POINT 13;
THENCE S.40 42'08"W., 1584.44 FEET TO POINT 12 OF SAID LOT F; THENCE
N.89°46'41""W., 646.96 FEET TO POINT 11 OF SAID LOT F; THENCE N.59°47'49"W.,
1175.97 FEET TO POINT 10 OF SAID LOT F; THENCE S.70 54'2T'W., 546.55 FEET TO
THE POINT OF BEGINNING; EXCEPTING THEREFROM ALL THOSE PORTIONS
DESCRIBED IN DOCUMENTS RECORDED SEPTEMBER 10, 2001 AS INSTRUMENT NO.
01-0646854, 010646855, 01-0646856 AND 01-0646857 OF OFFICIAL RECORDS; ALSO
EXCEPTING THEREFROM THOSE PORTIONS DESCRIBED IN PARCELS A AND C IN
GRANT DEED RECORDED FEBRUARY 15, 2002 AS INSTRUMENT NO. 0135145 OF
OFFICIAL RECORDS; ALSO THE SOUTHEASTERLY 152.00 FEET OF THE
SOUTHWESTERLY 152.00 FEET OF THAT CERTAIN PORTION OF LOT G OF RANCHO
AGUA HEDIONDA, ACCORDING TO SAID PARTITION MAP THEREOF NO. 823,
BOUNDED AND DESCRIBED AS FOLLOWS: BEGINNING AT POINT 7 OF SAID LOT G
WHICH POINT IS ALSO SHOWN AS POINT 14 OF LOT F ON SAID PARTITION MAP
NO. 823; THENCE FROM SAID POINT OF BEGINNING, S.51°15'45"E., ALONG THE
NORTHEASTERLY LINE OF SAID LOT G, 1042.27 FEET; THENCE AT RIGHT ANGLES
S.37°44'15"W. 440.57 FEET; THENCE AT RIGHT ANGLES N,52°15'45"W., 1240.75 FEET
TO A POINT ON THE NORTHWESTERLY LINE OF SAID LOT G; THENCE N.62°00'00"E.
ALONG A PORTION OF THE NORTHWESTERLY LINE OF SAID LOT G, 483.29 FEET
TO THE POINT OF BEGINNING OF THE PROPERTY HEREIN DESCRIBED, ALL OF
THE AFOREDESCRIBED LAND BEING IN THE CITY OF CARLSBAD, COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA.
CONTAINING A TOTAL OF 396 ACRES MORE OR LESS.
ACTIONS, STANDARDS AND PROCEDURES FOR PERMITS
Reference the attached permits as follows:
1. State Water Resources Control Board, WDID No. 937C337203 dated
October 17, 2005;
2. California Department of Fish and Game, Streambed Alteration
Agreement No. 5-122-00 dated June 30, 2004;
3. United States Army Corps of Engineers Permit No. 972020600-SMJ
dated January 5, 2005 modifying Permit No. 972020600-MAT dated
September 30, 2000;
4. California Coastal Commission Coastal Development Permit No. A-
6CII-00-087, Notice of Acceptance dated April 25, 2005;
5. City of Carlsbad, Endangered Species Act Incidental Take Permit No.
HMP 04 -01 dated December 6, 2004;
6. San Diego Gas and Electric Company, Letter of Permission for
Grading and Construction of Improvements dated June 23, 2005.
EXHIBIT E
10/17/05 09:38 FAI 9162660053 COPY EDGE PRINTING @l ooi
Alan C Lloyd Pfi D
Secretary for
Environmental
Protection
October 17,2005
i Wafer Resources Control Board
Division of Water Quality
1001J Street • Sacramento, California 95814 • (916) 341-5536
Mailing Address: P.O. Box 1977-Sacramento, California-95S12-1977 '
FAX (916) 341-5543 • Internet Address: http://www.waterboards.ca.eov
Email Address: stomwatei@waterhoards.ca^ov
Arnold Sctimrzeneggei
Governor
John Cahill
Carlsbad City
1200 Carlsbad Village Dr
Carlsbad, CA 92008
OCT 1 1 2005
r-WXli' ii ASSOC:•• ??:.»/j Office
RECEIPT OF YOUR NOTICE OF INTENT
The State Water Resources Control Board (State Water Board) has received and processed your
NOTICE OF INTENT TO COMPLY WITH THE TERMS OF THE GENERAL PERMIT TO
DISCHARGE STORM WATER ASSOCIATED WITH CONSTRUCTION ACTIVITY. Accordingly,
.you are required to comply with the permit requirements.
The WDID identification number 9 37C337203.
Please use this number in any future communications regarding this permit'
SITE DESCRIPTION
OWNER: Carlsbad City
DEVELOPER: Sema Construction Inc
COUNTY: San Diego
SITE ADDRESS: 5800 Hidden Valley Rd
Carlsbad, CA 92009-
COMMENCEMENT DATE: 9/8/05
EST. COMPLETION DATE: 07/01/07
When construction is complete or ownership has been transferred, dischargers are required to notify the
Regional Water Board by submitting a Notice of Termination (NOT). All State and local requirements
must be met in accordance with Special Provision No. 7 of the General Permit If you do not notify the
State Water Board that construction activity has been completed you will continue .to be invoiced for the
annual fee each October. Please visit the storm water web page at
www.waterboards.ca.gov/stormwtr/index.html to obtain an NOT and other storm water related
information and forms.
If you have any questions regarding permit requirements, please contact your Regional Water Board at
(858)467-2952.
Sincerely,
Storm Water Section
Division of Water Quality
California Environmental Protection Agency
Recycled Paper
EXHIBIT E-1
40
IFOPMIA .THF PF <
DEPARTMENT OF FISH AND GAME
Region 5
4949 Viewridge Avenue
an Diego, California 92123
58)467-4201
June 30,2004
Mr. John Cahill
City of Carlsbad
1635 Faraday Avenue
Carlsbad, CA 92008-7314
RE: City of Carlsbad Municipal Golf Course Streambed Alteration Agreement #5-122-00
Dear Mr. Cahill:
Enclosed is your copy of Streambed Alteration Agreement 5-122-00. If you agree with
the conditions/measures set forth in the agreement, please make a copy, then sign and
return both copies to our office for signature, at the above address. Written notice of
your intent to commence project activities needs to be provided to the Department at
least five days in advance of commencing project activities.
The California Fish and Game Code requires that you notify the Department in writing
within 14 days of receipt of this Proposal as to its acceptability. If you do not respond
within this time period you will lose your right to request binding arbitration. For minor
changes we suggest you contact the person responsible for writing your agreement prior
to sending the written response.
Please be advised the Department cannot execute (sign) your Streambed Alteration
Agreement without your certified CEQA (California Environmental Quality Act) document,
Notice of Determination (NOD), Findings, and proof of having paid the CEQA document
filing fee. Also, this Agreement is subject to change upon receipt and review of your
certified CEQA documents. If the project was determined to be exempt under CEQA by
the lead agency, please provide a copy of the Notice of Exemption or other appropriate
documentation.
If you have any questions regarding the proposed conditions please contact me at (858)
467-4223.
Thank you for your cooperation in this matter.
Tamara A. Spear
Environmental Scientist
Habitat Conservation Planning, Region 5
EXHIBIT E-2
CALIFORNIA DEPARTMENT OF FISH AND GAME
4949 Viewridge Avenue
San Diego, California 92123
Notification No.5-1 22-00
AGREEMENT REGARDING PROPOSED STREAM OR LAKE ALTERATION
THR AGREEMENT entered into between the State of California, Department of Fish and
Game hSeinafter called the Department, and John Cahill. representing the Cityof
clrTsb'ad State of California . hereinafter called the Operator, is as follows:
WHEREAS pursuant to Section 16Q1_ of California Fish and Game Code, the Operator, on
thel5' da7of_Maw2QQQ, notified the Department that they intend to divert or obstruct the
natural flow of or change the bed, channel, or bank of or use material from the
Streambed(s) of, the following water(s): 1 Innamed drainage fributaryto the Aqua Hed.onda
Lagoon! San Diego County, California, Section _ Township 12S_ Range 4W_.
WHEREAS the Department (represented byTamara Spear) has determined that such
oberatio^nTiray substantially adversely affect those existing fish and wildhfe resources
of an unnamed tributary to the San Luis Rey River, specifically
California anatcatcher. least Bell'* vir^o oranQethroat vfriptai .
i white-talJeTOe. Cooper's hawk. Southwestern willow flycatcher. California
shrike. yellow warbler, yellow-breasted chat. Southern California
sparrow, great blue heron. San Dieao black-tailed rackrabbit. Northvesterm
o- njpqri pnr.kftt mouse. San Dieoo desert woodrat. Yuma rnyotis bats. Northern harrier.
mule deer, California Adolphia. Del Mar manzanita. Lewjs' evening primrose. Prostrate
spineflower. Western dichondraT^e^urrbent aoldenbush. Southwestern soinv rusrL
Nuttall's scrub oak and^ Ashvspike-moss. These plants and wildlife are associated~with
Dieaan Coastal Saoe Scrub. Southern Maritirre Chaparral. Native and non-native
grasslands. Southern Willow/Mulefat Scrub. Southern Coastal Freshwater Marsh. Riparian
herb. Eucalyptus woodland and disturbed lands.
THEREFORE, the Department hereby proposes measures to protect fish and wildlife
resources during the Operator's work. The Operator herebyagrees to accept the following
measures/conditions as part of the proposed work.
If the Operator's work changes from that stated in the notification specified above,
this Agreement is no longer valid and a new notification shall be submitted to the
Department of Fish and Game. Failure to comply with the provisions of this Agreement and
with other pertinent code sections, including but not United to Fish and Game Code
Sections 5650, 5652, 5937, and 5948, may result in prosecution.
Nothing in this Agreement authorizes the Operator to trespass on anyland or
property, nor does it relieve the Operator of responsibility for compliance with applicable
federal, state, or local laws or ordinances. A consummated Agreement does not constitute
Department of Fish and Game endorsement of the proposed operation, or assure the
Department's concurrence with permits required from other agencies.
This Agreement becomes effective the date of Department's signature and terminates
December 31. 2008 for project construction only. This Agreement shall remain in effect for
that time necessary to satisfy the terms/conditions of this Agreement.
Page 1 of 5 U 1
STREAMBED ALTERATION AGREEMENT #5-122-00
1. The following provisions constitute the limit of activities agreed to and resolved by this
Agreement. The signing of this Agreement does not imply that the Operator is precluded
from doing other activities at the site. However, activities not specifically agreed to and
resolved by this Agreement shall be subject to separate notification pursuant to Fish and
Game Code Sections 1600 et seq.
Project Location and Description:
2. The Operator proposes to alter the streambed of an unnamed tributary to Agua
Hedionda Lagoon to accommodate the construction of a Municipal Golf Course which
will include an 18-hole championship golf course, clubhouse, maintenance facility, driving
range, conference center, and pads for industrial/golf related uses. The project is
located approximately one mile to the east of Interstate 5. Palomar Airport Road forms
the southern boundary, Hidden Valley Road forms the western boundary, and the
southern edge of grading for the future extension of Faraday Avenue forms the northern
boundary. The 396-acres project site is located in the northwestern quadrant of the City
of Carlsbad, San Diego County, impacting 0.91 acres of streambed.
3. The agreed work includes activities associated with No. 2 above. The project area is
located in an unnamed ephemeral drainage, tributary to Agua Hedionda Lagoon,
San Diego County. Specific work areas and mitigation measures are described on/in the
plans and documents submitted by the Operator, including an Environmental Impact
Report, and shall be implemented as proposed unless directed differently by this
agreement.
4. The Operator shall not impact more than 0.91 acres of streambed comprised of 0.46
acres mule fat scrub, and 0.45 acres of unvegetated channel. Impacts are considered
permanent and will be mitigated at a 3:1 ratio for mule fat scrub and 1:1 ratio for
unvegetated channel, for a mitigation acreage requirement of 1.83 acres.
Mitigation:
5. As mitigation for the project, the Operator shall restore through creation and
enhancement, 1.83 acres of comparable wetland habitat on-site. The Operator shall
submit a final Mitigation and Monitoring Plan within 60 days of signing this Streambed
Alteration Agreement. Department approval of that plan is required prior to project
initiation/impacts.
All revegetation shall be installed no later than March 31.2009.
6. The Operator shall mitigate at a minimum 5:1 ratio for impacts beyond those
authorized in this Agreement. In the event that additional mitigation is required, the type
of mitigation shall be determined by the Department and may include creation,
restoration, enhancement and/or preservation.
Vegetation. Reveaetation and Restoration:
7. All mitigation planting shall have a minimum 100% survival the first year and 80%
survival thereafter and/or shall attain 75 % cover of native wetland species after 3 years
and 90% cover of native wetland species after 5 years. If the survival and cover
requirements have not been met, the Operator is responsible for replacement planting to
achieve these requirements. Replacement plants shall be monitored with the same
survival and growth requirements for 5 years after planting. At the completion of the
monitoring period, the mitigation site shall have received NO supplemental irrigation for a
period of two consecutive years, nonnative plants shall not make up more than 5% of the
Page 2 of 5 .
STREAMBED ALTERATION AGREEMENT #5-122-00
entire cover of the site, no more than 5% of the site shall consist of bare ground and site
shall be free of invasive exotic plants species.
8. All planting should be done between October 1 and April 30 to take advantage of the
winter rainy season.
9. An annual report shall be submitted to the Department by January 1 of each year for
5 years afer the on-site restoration/planting. This report shall include the survival and
percent cover. The number by species of plants replaced, an overview of the
revegetation effort, and the method used to assess these parameters shall also be
included along with photos from designated photo stations.
Work Period and Time Limits:
10. The Operator shall not remove vegetation within the stream from February 15 toSeptember 1 to avoid impacts to nesting birds.
Habitat Protection:
11. The Operator shall have a qualified biologist onsite daily during any impacts to
vegetation for the purpose of monitoring and enforcing conditions of this agreement.
12. Preparation shall be made so that runoff from steep, erodible surfaces will be
diverted into stable areas with little erosion potential. Frequent water checks shall be
placed on dirt roads, cat tracks, or other work trails to control erosion.
13. The perimeter of the work site shall be adequately flagged to prevent damage toadjacent riparian habitat.
Structures:
14. This Agreement does not authorize the construction of any temporary or permanent
dam, structure, flow restriction or fill except as described in the Operator's notification.
Equipment and Access:
15. No equipment shall be operated in ponded or flowing areas.
16. Staging/storage areas for equipment and materials shall be located outside of the
stream.
17. Access to the work site shall be via existing roads and access ramps.
18. Any equipment or vehicles driven and/or operated within or adjacent to the stream
shall be checked and maintained daily, to prevent leaks of materials that if introduced to
water could be deleterious to aquatic life.
19. The clean-up of all spills shall begin immediately. The Department shall be notified
immediately by the Operator of any spills and shall be consulted regarding clean-upprocedures.
Turbiditv/Siltation:
Page 3 of 5
STREAMBED ALTERATION AGREEMENT #5-122-00
20. Water containing mud, silt or other pollutants from aggregate washing or other
activities shall not be allowed to enter a lake or flowing stream or placed in locations that
may be subjected to high storm flows.
Pollution. Litter and Cleanup:
21. The Operator shall comply with all litter and pollution laws. All contractors,
subcontractors and employees shall also obey these laws and it shall be the
responsibility of the operator to ensure compliance.
22. Spoil sites shall not be located within a stream, where spoil could be washed back
into a stream, or where it could cover aquatic or riparian vegetation.
23. Raw cement/concrete or washings thereof, asphalt, paint or other coating material,
oil or other petroleum products, or any other substances which could be hazardous to
aquatic life, resulting from project related activities, shall be prevented from
contaminating the soil and/or entering the waters of the state. These materials, placed
within or where they may enter a stream/lake, by Operator or any party working under
contract, or with the permission of the Operator, shall be removed immediately.
24. No debris, soil, silt, sand, bark, slash, sawdust, rubbish, cement or concrete or
washings thereof, oil or petroleum products or other organic or earthen material from any
construction, or associated activity of whatever nature shall be allowed to enter into or
placed where it may be washed by rainfall or runoff into, waters of the State. When
operations are completed, any excess materiajs or debris shall be removed from the
work area. No rubbish shall be deposited within 150 feet of the high water mark of any
stream or lake.
25. No equipment maintenance shall be done within or near any stream channel where
petroleum products or other pollutants from the equipment may enter these areas under
any flow.
Other:
26. The Operator shall provide a copy of this Agreement to all contractors,
subcontractors, and the Operator's project supervisors. Copies of the Agreement
shall be readily available at work sites at all times during periods of active work
and must be presented to any Department personnel, or personnel from another agency
upon demand.
27. The Department reserves the right to enter the project site at any time to ensure
compliance with terms/conditions of this Agreement.
28. The Operator shalj notify the Department, in writing, at least five (5) days prior to
initiation of construction (project) activities and at least five (5) days prior to
completion of construction (project) activities. Notification shall be sent to the
Department at 4949 Viewridge Avenue, San Diego, CA 92123 Attn: Tamara A. Spear
29. It is understood the Department has entered into this Streambed Alteration
Agreement for purposes of establishing protective features for fish and wildlife. The
decision to proceed with the project is the sole responsibility of the Operator, and is not
required by this agreement. It is further agreed all liability and/or incurred cost
related to or arising out of the Operator's project and the fish and wildlife
protective conditions of this agreement, remain the sole responsibility of the
Page 4 of 5 M £
STREAMBED ALTERATION AGREEMENT #5-122-00
Operator. The Operator agrees to hold harmless the State of California and the
Department of Fish and Game against any related claim made by any party or parties for
personal injury or any other damages.
30. The Operator may request one extension of this agreement, subject to Department
approval, prior to its termination. The extension request and fees shall be submitted to
the Department's Region 5 office at the above address. If the Operator fails to request
the extension prior to the agreement's termination, then the Operator shall submit a new
notification with fees and required information to the Department. Any activities
conducted under an expired agreement are a violation of Fish and Game Code Section
1600et. seq.
31. The Department reserves the right to suspend or cancel this Agreement for other
reasons, including but not limited to the following:
a. The Department determines that the information provided by the Operator in support
of the Notification/Agreement is incomplete or inaccurate;
b. The Department obtains new information that was not known to it in preparing the
terms and conditions of the Agreement;
c. The project or project activities as described in the Notification/Agreement have
changed;
d. The conditions affecting fish and wildlife resources change or the Department
determines that project activities will result in a substantial adverse effect on the
environment.
32. Before any suspension or cancellation of the Agreement, the Department will notify
the Operator in writing of the circumstances which the Department believes warrant
suspension or cancellation. The Operator will have seven (7) working days from the date
of receipt of this notification to respond in writing to the circumstances described in the
Department's notification. During the seven (7) day response period, the Operator shall
immediately cease any project activities which the Department specified in its notification.
The Operator shall not continue the specified activities until that time when the
Department notifies the Operator in writing that adequate methods and/or measures
have been identified and agreed upon to mitigate or eliminate the significant adverse
effect.
CONCURRENCE
City of Carlsbad California Dept. of Fish and Game
(date) (signature) (date)
John Cahill C.F. Ravsbrook. Regional Manager
(t'tle) /fl/1/i/./AL Ptofcfo(title)
Page 5 of 5
I V t\ v I i ri u
REPVVTO
ATTENTION Oft
DEPARTMENT OF THE ARMY .
LOS ANGELES DISTRICT, CORPS OF ENGINEERS
P.O BOX 532711
LOS ANGELES, CALIFORNIA 90053-2325
January 5,2005
Office of the Chief
Regulatory Branch
City of Carlsbad Engineering Department
Attention: John Cahill
2075 Las Palmas Drive
Carlsbad, California 92009-1519
DearMr.Cahill:
Reference is made to your request of March 16,1999 to amend Permit No. 97202060G-5MJ
which authorised you to impact 2.95 acres of wetlands and waters of the U.S. to construct the
Carlsbad Municipal Golf Course which would impact an unnamed tributary to the Agua
Hedionda Creek in Carlsbad, San Diego County, California.
Under Che provisions of 33 Code of Federal Regulations 325.6(d), the start date is to
remain (he same and the completion date is extended from August 8,2005 to August 8,2007.
Under the provisions of 33 Code of Federal Regulations 325.7(b), your permit is modified
as follows:
You are hereby authorized to construct the Carlsbad Municipal Golf Course on a 418-acre
site located in the northwest quadrant of me City of Carlsbad. Palomar Airport Road forms the
southern boundary of the site, Hidden Valley Road forms the eastern boundary, and the
southern edge of grading for the extension of Faraday Avenue forms the northern boundary.
Hie northern portion of the site is in the Agua Hedionda watershed and drains into Agua
Hedionda Lagoon. The remainder of the site is in the Encinas Creek watershed, which drains
through Encinas Canyon to the Pacific Ocean. In addition to the 18-hole championship golf
course, the proposed project includes a clubhouse, maintenance facility, driving range,
conference center, and pads for industrial/golf course uses.
The Carlsbad Golf project received the Incidental Take Permit from the U.S. Fish and
Wildlife Service .on December 06,2004. Also, the US. Fish and Wildlife Service concurred on
December 15, 2004 that the project is consistent with the Carlsbad Habitat Management Plan-
Therefore, Special Condition 1 of the original permit, dated August^, 2000, is no longer
applicable. • - • '' '':
The permittee shall now impact no more than 0.91 acre of waters of the United States.
Specifically, the permittee shall impact no more than 0-46 acre of wetland Waters of the U.S.
EXHIBIT E-3
rco. y, i\i\jj o.tzniYi ni/i\
-2-
and 0.45 acre of non-wetland Waters of the U.S. This replaces Special Condition 2 of the
original permit, dated August 2,2000. ,
The permittee shall mitigate impacts to 0.91 acre of waters of the U.S. (including wetland
and non-wetland waters) by the on-site creation of 1,83 acres of riparian habitat, in accordance
with the Gty of Carlsbad Revised Golf Course Riparian Mitigation Flan, dated December 2003.
This replaces Special Condition 3 of the original permit, dated August 2,2000.
The tenns and conditions of Permit No, 972020600-SMJ, except as changed herein/ remain
in full force and effect
Please note that a copy of (his letter is being forwarded to Field Supervisor, Ecological
Services Field Office, U.S. Fish and Wildlife Service, 6010 Hidden Valley Road, Carlsbad,
California 92009; U.S. Environmental Protection Agency, Attn: Mr. Tim VendJinski,
Supervisor, Wetlands Regulatory Office (WTR-8), 75 Hawthorne Street San Francisco,
California 94105; California Department of Fish and Game, Attn: Charles Raysbrook, 4949
View Ridge Ave., San Diego, California 92123. California Regional Water Quality Control
Board, Region 9, San Diego, Attn: Mr. Michael McCann, Manager, Watershed Branch, 9174 Sly
Park Court, Suite 100, San Diego, California 92123
Sincerely,
David J. Castanon
Acting Chief, Regulatory Branch,
flGOE REGULfiTORY Fax:8586745388 Rpr 20 2004 16:43 P.02
LOS ANGELES DISTRICT
U.S. ARMY CORPS OF ENG/NEERS
Permittee:
Permit Number
Issuing Office:
DEPARTMENT OF THE ARMY PERMIT
i'r
*.
City of Carlsbad
972020600-MAT
Los Angeles District
Note: The term "you" and its derivatives, as used in this permit, means the permittee or any
future transferee. The term "this office" refers to the appropriate district or division office of the
Corps of Engineers having jurisdiction over the permitted activity or the appropriate official
acting under the authority of the commanding officer.
You are authorized to perform work in accordance with the terms and conditions specified below.
Project Description: To construct the Carlsbad Municipal Golf Course project in the City of
Carlsbad, San Diego County, California, as shown on the attached drawings.
Project Location: In unnamed tributaries to Agua Hedionda Creek and Encinas Creek in the City
of Carlsbad, San Diego County, California. The 418-acre site is located in the northwestern
quadrant of the City of Carlsbad- Palomar Airport Road forms the southern boundary of the
site, Hidden Valley Road forms the eastern boundary, and the southern edge of grading for the
future extension of Faraday Avenue forms the northern boundary. The northern portion of the
site is in the Agua Hedionda watershed and drains into Agua Hedionda Lagoon. The
remainder of the site is in the Encinas Creek watershed, which drains through Encinas Canyon
(located on the south side of Palomar Road) to'the Pacific Ocean.
Permit Conditions:
1 Your use of the permitted activity must not interfere with the public's right to free navigation
on all navigable waters of the United States.
2 You must have a copy of this permit available on the vessel used for the authorized
transportation and disposal of dredged material.
3 You must advise this office in writing, at least two weeks before you start maintenance
flCOE REGULflTORY Fax : 8586745388 fipr 20 2004 16 = 43 P. 03
dredging activities under the authority of this pennit.
.(
4 You must install and maintain/ at your expense, any safety lights and signals prescribed by the
United States Coast Guard (USCG), through regulations or otherwise, on your authorized
facilities. The USCG may be reached at the following address and telephone number.
5 The condition below will be used when a Corps permit authorizes an artificial reef, an aerial
transmission line, a submerged cable or pipeline, or a structure on the outer continental shelf.
National Ocean Service (NOS) has been notified of this authorization. You must notify
NOS and this office in writing, at least two weeks before you begin work and upon completion of
the activity authorized by this permit Your notification of completion must include a drawing
which certifies the location and configuration of the completed activity (a certified permit
drawing may be used). Notifications to NOS will be sent to the following address: The Director,
National Ocean Service (N/CG 222), Rockvffle, Maryland 20852.
6 The following condition should be used for every pennit where legal recordation of the pennit
would be reasonably practicable and recordation could put a subsequent purchaser or owner of
property on notice of pennit conditions.
You must take the actions required to record this pennit with the Registrar of Deeds or
other appropriate official charged with the responsibility for maintaining records of title to or
interest in real property.
General Conditions:
1. The time limit for completing the authorized activity ends on August 2, 2005 . If you find that
you need more time to complete the authorized activity, submit your request for a time extension
to this office for consideration at least one month before the above date is reached.
2. You must maintain the activity authorized by this pennit in good condition and in
conformance with the terms and conditions of this permit. You are not relieved of this
requirement if you abandon the permitted activity, although you may make a good faith transfer
to a third party in compliance witK General Condition 4 below. Should you wish to cease to
maintain the authorized activity or should you desire to abandon it without a good faith transfer,
you must obtain a modification from this permit from this office, which may require restoration of
the area.
3- If you discover any previously unknown historic or archeologkal remains while accomplishing
the activity authorized by this permit, you must immediately notify this office of what you have
found. We will initiate the Federal and state coordination required to determine if the remains
warrant a recovery effort or if the site is eligible for listing in the National Register of Historic
Places. ».
4. If you sell the property associated, with this permit, you must obtain the signature of the new
owner in the space provided and forward a copy of the permit to this office to validate the
50
.flCOE REGULflTORY Fax=8586745388 flpr 20 2004 16=44 P. 04
transfer of this authorization.
5. If a conditioned water quality certification has been issued for your project, you must comply
with the conditions specified in the certification as special conditions to this permit. For your
convenience, a copy of the certification is attached if it contains such conditions.
6. You must allow representatives front this office to inspect the authorized activity at any time
deemed necessary to ensure that it is, being or has been accomplished with the terms and
conditions of your permit ,
Special Conditions:
1. The permittee shall obtain "take" authorization under the Endangered Species Act for
any and all impacts to threatened or endangered species prior to initiating
waters/ wetlands impacts authorized by this IP, The permittee shall submit verification
of compliance with this permit condition prior to initiating waters / wetlands impacts
authorized by this DP. This authorization may be obtained by the following means: a)
Adoption and approval of the Gty's Habitat Management Plan by the USFVVS and
CDFG. (the City would then issue their own take authorization), orb) Individual
Section 10 permit issued by the USFWS.
2. The permittee shall impact no, more man 2.95 acres of waters of the United Stales
(including wetlands and non-wetland waters). The permittee shall fence (with silt
barriers) the limits of the construction corridor to prevent additional waters/wetlands
impacts and the spread of silt from the construction zone into adjacent
waters/wetlands. If waters/wetlands impacts occur outside these limits, all work
shall cease, and the Corps shall be notified immediately. Any waters/wetlands
impacts that occur outside the fenced and marked limits shall be mitigated at a
minimum 5:1 ratio, and shall be subject to the requirements of all the special
conditions listed below.
3. The permittee shall mitigate impacts to 2.95 acres of waters of the United States
(including wetlands and non-wetland waters) by a) creating 4.5 acres of riparian
habitat on-site adjacent to the Cannon road riparian site and existing Macario Creek
riparian corridor; and b) restpring/enhancing 4.0 acres of wetland habitat offsite at the
Carltas site. Mitigation grading, planting, and irrigation shall begin prior to and/or
concurrent with the planned date of initiating waters/wetlands impacts authorized by
this IP.
4. A final conceptual wetiand mitigation plan based on the Carlsbad Golf Course
Composite Wetlands Mitigation: Plan (P&D Environmental Services, May 2000) shall be
suhtnjjtedjro the Corps for review and approval 30 days prior to initiating
waters/wetland impacts (cc: USFWS and EPA). These final conceptual plans shall
be prepared in strict accordance with the Corps' Habitat Mitigation andMonitoring
Proposal Guidelines (June 1> 1993). In addition to the information presented in
P&D's draft May 2000 mitigation plan, it is the Corp's understanding that the
Carlsbad Golf on-site mitigation will conform, to the extent practicable, to the
specifications outlined in the Cannon Road Mitigation Plan (specifically the
"Addendum to the Conceptual Mitigation Plan for Cannon Road Extension Project Reaches 1
3
flCOE REGULflTORY Fax=8586745388 flpr 20 2004 16:44 P. 05
and 2" dated February 20,1998). The final conceptual mitigation plan shall include
and incorporate all sections of the Canon Road mitigation plans that pertain to the
Carlsbad Golf project. In addition, all addendums submitted to the Corps shall be
included in the final conceptual plan. The final conceptual plan shall include details
of the offsite restoration/enhancement including location, methods of removal,
replanting strategies and techniques, success criteria (performance standards),
monitoring/maintenance methods and schedules. Additional content and
requirements for the final conceptual plan are listed below in special condition
number five. The final conceptual plan shall be submitted as one complete and
comprehensive document for Corps review 30 days prior to the planned date of
initiating waters/wetlands impacts authorized by this IP. No impacts to
waters/wetlands shall occur until after the Corps approves the conceptual plan.
5. Final wetland construction plans, specifications and drawings based on the Corps-
approved final conceptual wetland mitigation plan shall be submitted to the Corps for
review and approval 10 days prior to initiating wetland impacts. The final plans and
specifications shall also include:
a) All final specifications and topography-based layout grading, planting, and
irrigation.
b) A provision that all wetland creation areas shall be graded to the same
elevation as the adjacent existing wetlands and/or within one foot of the
groundwater table, and shall be left in a rough grade state with topographic
relief (including channels) that mimics natural wetland topography.
c) Planting pallets (plant species,, size, and number per acre) and seed mix (plant
species and pounds per acre). All planting shall be installed in a manner that
mimics natural plant distribution (e.g., random and/or aggregate distributions
rather man uniform rows). Plantings shall generally be placed within the
mitigation areas along hydrologic gradients that make ecological sense in
relation to each plant's facultative category (e.g. obligate, facultative, etc.).
d) A provision that on the first anniversary of the initial planting, all dead plants
shall be replaced unless their function has been replaced by natural
recruitment as verified by the Corps.
e) A final implementation schedule that indicates when all wetland/waters
impacts, as well as mitigation site grading, planting, and irrigation will begin
and end.
f) Five years of explicit and measurable success criteria for wetland creation,
restoration, and enhancement areas. The permitec shall conduct a minimum of
five years of maintenance and monitoring of wetland mitigation areas. If success
criteria are met earlier and all artificial water supply to the site has ceased for a
minimum of two yearsv the site may be considered, at the Corps discretion, for
early approval. In addition to the success criteria outlined in the final mitigation
— jihthmdnitoring plan, evidence of wetland hydrology and natural recruitment of
native wetland vegetation must be present on-site in order to obtain final Corp
approval of the mitigation areas. Annual mitigation maintenance and monitoring
reports shall be submitted to the Corps (cc: USFWS and EPA).
6. Planting and irrigation shall not be installed until the Corps has approved the
xrutigation. sit® grading. TKo permittee sKall contact tKe dorps, for verification of
flCDE REGULflTORY Fax=8586^.588 Hpr AI :AJU4 ic.:^ r.uo
proper grading of the mitigation site a minimum of 15 days prior to the planned date
of initiating planting.
7. If changes are made to the mitigation design during its implementation, the permittee
shall immediately notify the Corps. If changes are determined to be greater than
minimal by the Corps, as-built drawings of the mitigation grading, planting, and
irrigation shall be submitted to the Corps (cc: USFWS and EPA) within 30 days of
implementing the redesignedmitigation.
8. The permittee shall staff a qualified biologist on site during all phases of construction
and mitigation implementation to ensure compliance with the requirements of mis
permit, and shall produce a report that documents the timing and events of the final
implementation schedule. The permittee shall submit the biologist's name, address/
telephone number, email address (if available), and work schedule on the project to the
Corps prior to the planned date of initiating waters /wetlands impacts authorized by
this IP. The permittee shall report any violation to the Corps within one day of its
occurrence.
9. The permittee shall submit a report to the Corps within 30 days of completion of
waters/wetlands impacts authorized by this IP that documents compliance with all
permit conditions. The report shall include photographs showing fenced and marked
limits of impacts to all Corps, jurisdictional areas, as-built construction drawings and a
summary of all project activities.
10. The permittee shall not remove/impact vegetation from development areas from
March 15 to September 15 to avoid impacts to nesting birds. Any habitat restoration
and creation activities also shall be timed to avoid disturbance of Federally-listed and
other migratory nesting birds (ie., avoid disturbance from March 15 through
September 15). However, the permittee may be authorized to remove/impact
vegetation within development and restoration areas during this time if a qualified
biologist surveys the proposed work area immediately prior to the vegetation removal
and concludes that no impacts to nesting birds will occur. The results of the survey
shall be provided to the Corps for review and approval prior to initiation of
vegetation removal. A qualified biologist shall monitor the vegetation removal to
ensure the no impacts to nesting birds will occur.
11. The permittee shall ensure that water quality is maintained within the channel at and
downstream of the project site by incorporating appropriate design elements into the
project (e.g., maintaining a soft bottom channel, installing detention basins, etc.)
12. The permittee shall preserve in perpetuity all mitigation areas by placing a biological
conservation easement in favor of an agent approved by the Corps on these areas. The
permitt"ee°shall submit a draft easement to the Corps prior to initiating wetland
impacts. The form and content of the easement shall follow the enclosed example, and
must be approved by the Corps prior to its execution. The easement shall state clearly
that no other easements or activities that would result in soil disturbance and/or
vegetation removal, except as approved by the Corps, shall be allowed within the
biological conservation easement area. The permittee shall submit the final easement
within. 10 days of receiving Corps approval of the draft easement.
5
flCOE REGULflTORY Fax:8586745388 flpr 20 2004 16:45 P.07
Further Information:
1. Congressional Authorities. You have been authorized to undertake the activity described
above pursuant to:
() Section 10 of the River and Harbor Act of 1899 (33 U.S.C 403).
(X) Section 404 of the Clean Water Act (33 U.S.C 1344).
() Section 103 of the Marine Protection, Research and Sanctuaries Act of 1972 (33 US.C 1413).
2. Limits of this authorization.
a. This permit does not obviate the need to obtain other Federal, state, or local
authorizations required by law.
b. This permit does not grant any property rights or exclusive privileges.
c. This permit does not authorize any injury to the property or rights of others.
jji d. This permit does not authorize interference with any existing or proposed Federal
project
3. Limits of Federal Liability. In issuing this permit, the Federal Government does not assume
any liability for the following:
a. Damages to the permitted project or uses thereof as a result of other permitted or
unpermitted activities or from natural causes.
b. Damages to the permitted project or uses thereof as a result of current or future activities
undertaken by or on behalf of the United States in the public interest
c. Damages to persons, property, or to other permitted or unpennitted activities or
structures caused by the activity authorized by this permit.
d. Design or construction deficiencies associated with the permitted work.
e. Damage claims associated with any future modification, suspension, or revocation of this
permit, « . .
4. Reliance on Applicant's Data. The determination of this office that issuance of this permit is
not contrary to the public interest was made in reliance on the information you provided.
t 5. Reevaluation of Permit Decision. This office may reevaluate its decision on this permit at any
W time the circumstances warrant. Circumstances that could require a revaluation include, but are
6
flCOE REGULflTORY Fax: 8586745388 flpr 20 2UU4
not limited to, the following:
a. You fail to comply with the terms and conditions of this permit
b. The information provided by you in support of your permit application proves to have
been false, incomplete, or inaccurate (See 4 above).
c. Significant new information surfaces which this office did not consider in reaching the
original public interest decision.
Such a reevaiuation may result in a determination mat it is appropriate to use the suspension,
modification, and revocation procedures contained in 33 CFR 325.7 or enforcement procedures
such as those contained in 33 CFR 326.4 and 326J5. The referenced enforcement procedures
provide for the issuance of an administrative order requiring you to comply with the terms and
conditions of your permit and for the initiation of legal action where appropriate. You will be
required to pay for any corrective measure ordered by this office, and if you fail to comply with
such directive, this office may in certain situations (such as those specified in 33 CFR 209.170)
accomplish the corrective measures by contract or otherwise and bill you for the cost
6. Extensions. General condition 1 establishes a time Hmit for the completion of the activity
authorized by this permit Unless there are circumstances requiring either a prompt completion
of the authorized activity or a reevaluation of the public interest decision, the Corps will normally
give you favorable consideration to a request for an extension of mis time Hmit,
55
flCOE REGULflTORY Fax:8586745388 flpr 20 2004 16:46 P. 09
"' J Your signature below, as permittee, indicates that you accept and agree to comply with the terms
and conditions of this permit
This permit becomes effective when the -Federal official, designated to act for the Secretary of the
Army, has signed below.
George L Beams
Chief, Construction -
Operations Division
DATE
When the structures or work authorized by this permit are still in existence at me time the
property is transferred, the terms and conditions of this permit will continue to be binding on the
new owner(s) of the property. To validate the transfer of mis permit and the associated liabilities
associated with, compliance with its terms and conditions, have the transferee sign and date
below.
TRANSFEREE DATE
,Apr-25-05 OZ:Z5pin from-618 o.ia ror
ARNOLD SCHWAR2BNEQQBK. Q,
COASTAL COMMISSION
iN D1EOO AI*£A
75 MfiTROPOWTAM DRIVE, SUITE 103
.NDIEQO. CA 92IOW42I
City of Carlsbad
Ann: JohnCahill
1635 Faraday Avenue
Carlsbad, CA 92008
NOTICE OF ACCEPTANCE
Pate: April 25. 2005
Applicant: Citv of Carlsbad
Document or Plans: 1. Water Quality Monitoring Plan dated November 18.2004. 2.
—rf and Pest Management Plan dated August 17. 2004. 3. Technical Advisory- - - ' —«-• ^ TO—i j—i—^^fr wi.vr.a that include
ivinf
.
g Comments dated August 6. 2004. 4. Final
--***•*"••- 7 ^
vdiologv Report a«d Storm WaterKfthtirtff, water fea Revised RiparianPino dated July 2004 (revised N
itiqatirtn Plan for an Q. Recordation of
nedicate Open Space and Consprvatinn Easement.
Submitted in comph'ance with Special Conditions) No(s).:
of Coastal Development Permit No. A-6-Cn-OO rto'T
Remaining Special Condition(s): None
6 7 8, 10, J4
Material submitted in compliance with said Special Conditions) of your development
nermtt has been reviewed by the District Director and found to fulfiU the requirements of
Sondition(s). Your submitted material and a copy of this letter have been made a
part of the permanent file.
Sincerely,
(b:\San DlcEO\LBE\Curlsbaa OolfCouree NOA.doc)
Deborah Lee
Deputy Director
By:
EXHIBIT E-4
57
STATE OF CALIFORNIA - THE RESOURCES AOENCY GRAY DAVIS. Governor
CALIFORNIA COASTAL COMMISSION
San Diego Coast Area Office
~<575 Metropolitan Drive, Suite 103
Jan Diego, CA 92108-4421
;-t619) 767-2370
Page:l
Date: August 28, 2003
Permit Application No.: A-6-CII-00-087
COASTAL DEVELOPMENT PERMIT
On August 8, 2003, the California Coastal Commission granted to
City of Carlsbad, Attn: Michael Holzmiller
this permit subject to the attached Standard and Special conditions, for development consisting of
Development of an18 hole championship golf course, clubhouse, parking lot,,
maintenance facilities, driving range, conference center and pads for future
industrial/golf related uses on 397 acre site.
more specifically described Jii the application filed in the Commission offices.
The development is within the coastal zone at
North of Palomar Airport Road and east and west of College Boulevard, Mello II,
Carlsbad, (San Diego County)
Issued on behalf of the California Coastal Commission by
PETER M.DOUG
Executive Directo
By: Keri Ake
Coastal Pro Analyst
ACKNOWLEDGMENT:
The undersigned permittee acknowledges receipt of this permit and agrees to abide by all terms
and conditions thereof.
The undersigned permittee acknowledges that Government Code Section 818.4 which states in
pertinent part that: "A Public entity is not liable for injury caused by the issuance... of any permit.
. ." applies to the issuance of this permit.
IMPORTANT: THIS PERMIT IS NOT VALID UNLESS AND
WITH THE SIGNED ACKNOWLEDGMENT HAS BEEN RETU
OFFICE. 14 Cal. Admin. Code Section 13
UNTIl
I Dfete
COPY OF THE PERMIT
TO THE COMMISSION
mittee
1 Page: 2
Date: August 28, 2003
Permit Application No.: A-6-CII-00-087
STANDARD CONDITIONS:
1. Notice of Receipt and Acknowledgment. The permit is not valid and development shall
not commence until a copy of the permit, signed by the permittee or authorized agent,
acknowledging receipt of the permit and acceptance of the terms and conditions, is
returned to the Commission office.
2. Expiration. If development has not commenced, the permit will expire two years from the
date on which the Commission voted on the application. Development shall be pursued in
a diligent manner and completed in a reasonable period of time. Application for extension
of the permit must be made prior to the expiration date.
3. interpretation. Any questions of intent or interpretation of any condition will be resoived
by the Executive Director or the Commission.
4. Assignment. The permit may be assigned to any qualified person, provided assignee files
with the Commission an affidavit accepting all terms and conditions of the permit.
5. Terms and Conditions Run with the Land. These terms and conditions shall be
perpetual, and it is the intention of the Commission and the permittee to bind all future
owners and possessors of the subject property to the terms and conditions.
SPECIAL CONDITIONS:
The permit is subject to the following conditions:
1. Final Development Plans. PRIOR TO ISSUANCE OF THE COASTAL DEVELOPMENT
PERMIT, the applicant shall submit to the Executive Director for review and written approval,
detailed final plans for the proposed development that include site, building, grading and drainage
plans. Said plans shall be in substantial conformance with the plan entitled "City of Carlsbad Golf
Course Revisions" submitted with LCPA 1-03B (Habitat Management Plan) on February 7, 2003
and shall comply with the following:
a. There shall be no impacts to southern maritime chaparral habitat within the Coastal Zone
portion of the project. Impacts to coastal sage scrub shall be consistent with the
approved development plan and shall be mitigated as addressed in Condition #2 below.
Any temporary impacts to wetland and/or riparian areas for the purpose of constructing
golf cart path crossings shall be restored as addressed in Condition #3 below.
b. The conservation and development areas for the golf course property shall be consistent
with the golf course hardline map (Figure 8 Revised) in the City of Carlsbad Habitat
Management Plan (HMP). Areas shown for conservation shall not be impacted or
disturbed except for revegetation, restoration and other similar activities related to
mitigation. Areas shown for impact may be fully developed with appropriate mitigation.
The permittee shall undertake the development in accordance with the approved plans. Any
proposed changes to the approved plans shall be reported to the Executive Director. No changes
: Page: 3
Date: August 28, 2003
Permit Application No.: A-6-CII-00-087
to the plans shall occur without a Coastal Commission approved amendment to this coastal
development permit unless the Executive Director determines that no amendment is legally
required.
2. Mitigation for Upland Habitat Impacts: PRIOR TO ISSUANCE OF THE COASTAL
DEVELOPMENT PERMIT, the applicant shall submit to the Executive Director for review and
written approval, a final detailed coastal sage scrub mitigation plan. Said plan shall be developed
in consultation with the U.S. Fish and Wildlife Service and the California Department of Fish and
Game, and shall include the following:
a. Preparation of a detailed site plan" delineating all areas and types of impact to upland
habitat species (both permanent a'rid temporary) and the exact acreage of each impact.
In addition, a detailed site plan of the mitigation sites shall also be included.
b. Impacts to coastal sage scrub shall be mitigated at not less than a ratio of 2:1.
c. Mitigation methods shall be consistent with those approved in Section 7-9 of the second
addendum to the Carlsbad HMP and Policy 7-1.10 of the Mello II Land Use Plan of the
Carlsbad LCP, as provided in Exhibit 10.
d. A minimum buffer of 20 feet shall be provided between development as defined in Section
30106 of the Coastal Act, and native upland habitat, except as otherwise provided in
Section 7-11 of the second addendum the Carlsbad HMP and Policy 3-1.12 of the Mello II
Land Use Plan of the Carlsbad LCP, as provided in Exhibit 10.
e. Location where the seeds will be collected and identification of plant species to be used
for the restoration area;
f. Application rate (e.g. pounds per acre of seeding effort);
g. Methods of weed eradication. No Weed whips shall be permitted after installation of the
seed mixes; •
':!'
h. Designation of a qualified botanist to supervise the restoration effort;
i. Goals, objectives and success criteria. The plan shall include quantitative success criteria
that clearly relate to the goals and objectives of the habitat restoration program. These
quantitative success criteria shall be based on sampling reference sites or on pertinent
published reports. The success critieria shall include minimum requirements for species
diversity and cover of shrubs, subshrubs, and herbaceous species. At minimum, five
years after the initial planting the restored areas shall support at least 10 native species
appropriate to characterize the vegetation type and have evidence of recruitment of at
least one-half of these species. Weeds shall be controlled as specified in (g) above and
never constitute more than 10 percent of the total cover.
j. At completion of the mitigation/restoration effort, the restoration specialist shall prepare a
letter report indicating that the installation is finished and that the five-year monitoring
period has begun. Monitoring reports shall be submitted to the City and the Executive
Director annually for five years. If at the end of five years, any of the restored areas fail to
meet the success criteria as contained in the final mitigation plan, the monitoring and
maintenance perioc. M be extended one full year for that aK ~.' Final monitoring for
success shall occur after at least a three-year period during which there has been no
remediation or maintenance,.other than weeding. If the success critieria are not met after
6 years, an amendment to the permit shall be required.
The permittee shall undertake development in accordance with the approved mitigation/restoration
plan. Any proposed changes to the approved plans shall be reported to the Executive Director.
No changes to the plans shall occur without a Coastal Commission approved amendment to this
coastal development permit unless the Executive Director determines that no amendment is
legally required.
3. Restoration for Construction Impacts. PRIOR TO ISSUANCE OF THE COASTAL
DEVELOPMENT PERMIT, if any temporary wetland and/or riparian impacts are proposed, the
applicant shall submit a detailed revegetation plan indicating the type, size, extent and location of
all plant materials, any proposed irrigation system and any other landscape features necessary to
revegetate any proposed temporary wetland and/or riparian impacts. The restoration program
shall be developed in consultation with the U.S. Department of Fish and Wildlife and the California
Department of Fish and Game, and at a minimum shall include:
Before/After Survey. The condition of the wetland and/or riparian revegetation and substrate
under the two approved golf cart crossing locations shall be documented prior to
construction, and the extent of proposed temporary impacts shall be identified. The extent of
impacts to the vegetation and substrate shall be assessed and documented after completion
of the repairs. Temporary wetland and/or riparian impacts shall be revegetated at a ratio of
1:1. There shall be no wetland impacts except for those temporary impacts associated with
construction of the two approved golf cart crossings. No permanent wetland or riparian
impacts shall be allowed.
a. The following goals, objectives and performance standards for the restoration sites:
1. Full restoration of all wetland and/or riparian impacts that are identified as
temporary. Restoration of temporarily impacted areas shall include, at a
minimum, restoration of before-impact elevations, restoration of before-impact
hydrology, removal of all non-native plant species, and replanting with locally
collected native wetland and/or riparian plant species.
2. After construction and restoration, a permanent minimum buffer of 100 feet shall
be provided between development and wetlands, and a minimum buffer of 50
feet shall be provided between development and riparian area, except as
shown on the "City of Carlsbad Golf Course Revisions" plan dated February 7,
2003. For the two approved golf cart path crossings and the golf course playing
areas adjacent to the riparian area as shown on the plan, an average minimum
post-construction buffer of 50 feet shall be provided between new development
and wetlands, and an average minimum post-construction buffer of 25 feet shall
be provided between new development and riparian areas, consistent with
Policy 3-1.12 of the Mello II Land Use Plan and Section 7-11 of the Carlsbad
HMP, as provided in Exhibit 10, unless otherwise approved by the Executive
Director in a manner consistent with the final, approved development plans and
mitigation/restoration plans. The buffer between development and
riparian/wetland habitat for these referenced areas shall not be less than 10 feet
in width at any one point.
3. As shown on the plan entitled "City of Carlsbad Golf Course Revisions"
submitted with LCPA 1-03B (Carlsbad HMP) on February 7, 2003, and
consiste., /i/ith the golf course hardline map (Figu 8 Revised) in the Carlsbad
HMP, golf cart path crossing #1 shall utilize the existing farm road, and crossing
#2 shall utilize a bridge span structure. No permanent riparian impacts shall
occur for either crossing.
4. Success criteria and final performance monitoring shall provide at least a 90%
coverage of areas disturbed by construction activities within 1 year of
completion of construction activities.
5. The final design and construction methods that will be used to ensure the
restoration sites achieve the defined goals, objectives and performance
standards.
6. Submittal, within 30 days of completion of initial restoration work, of post-
restoration plans demonstrating that the restoration sites have been established
in accordance with the approved design and construction methods.
Construction impacts to sensitive habitat areas (e.g., coastal sage and other native upland habitat,
wetlands, and riparian areas) shall be avoided by identifying and staking all sensitive habitats
outside the project footprint, and educating the construction crews about the importance of these
habitats and need for protection.
The permittee shall undertake development in accordance with the approved restoration plan.
Any proposed changes to the approved plans shall be reported to the Executive Director. No
changes to the plans shall occur without a Coastal Commission approved amendment to this
coastal development permit unless the Executive Director determines that no amendment is
legally required.
4. Final Landscape Plans. PRIOR TO ISSUANCE OF THE COASTAL DEVELOPMENT
PERMIT, the applicant shall submit to the Executive Director for review and written approval, a
detailed final landscape plan for the proposed development. Said plan shall show the type, size,
extent and location of all proposed vegetation and any necessary irrigation, and shall provide the
following information and/or commit to the following requirements:
a. The installation of plant materials on the site, except for golf course turf within the playing
and practice areas, shall consist only of drought-tolerant native or non-invasive plant
materials. Within buffers adjacent to native habitat, only native plant materials shall be
installed. To the extent feasible, native grasses shall be utlilized in "rough" areas.
b. Required habitat buffers, as provided in Special Condition #2, shall be identified. The
applicant shall provide a list of proposed plants to be used in the buffer areas, and shall
indicate the type and location of any proposed barriers, signage or other methods that will
be utilized to separate golf course activities from protected native habitat, wetlands and/or
riparian area.
c. A planting schedule that indicates the planting plan will be implemented within 60 days of
completion of construction.
d. A written commitment by the applicant that all required plantings will be maintained in good
growing condition, and whenever necessary, will be replaced with new plant materials to
ensure continued compliance.
e. A written commitment by the applicant that five years from the date of opening of the golf
course, the applicant will submit for the review and written approval of the Executive
1*2-
Director, a landscap, Monitoring report, prepared by a licens Landscape Architect or
qualified Resource Specialist, that certifies the on-site landscaping is in conformance with
the landscape plan approved pursuant to this Special Condition. The monitoring report
shall include photographic documentation of plant species and plant coverage.
f. If the landscape monitoring report indicates the landscaping is not in conformance with or
has failed to meet the performance standards specified in the landscaping plan approved
pursuant to this permit, the applicant, or successors in interest, shall submit a revised or
supplemental landscape plan for the review and approval of the Executive Director. The
revised landscaping plan must be prepared by a licensed Landscape Architect or a
qualified Resource Specialist and shall specify measures to remediate those portions of
the original plan that have failed or are not in conformance with the original approved plan.
The permittee shall undertake development in accordance with the approved landscaping plans.
Any proposed changes to the approved landscaping plans shall be reported to the Executive
Director. No changes to the plans shall occur without a Coastal Commission approved
amendment to this coastal development permit unless the Executive Director determines that no
amendment is legally required.
5. Erosion Control Plans. PRIOR TO ISSUANCE OF THE COASTAL DEVELOPMENT
PERMIT, the applicant shall submit to the Executive Director for review and written approval, an
erosion and sediment control plan for the proposed development, prepared by a qualified resource
specialist. The plan shall be in substantial conformance with the following requirements:
a. The plan shall delineate the areas to be disturbed by grading or construction activities and
shall include any temporary access roads, staging areas and stockpile areas. The natural
areas on the site shall be clearly delineated on the project site with fencing or survey flags.
No grading or staging of equipment or supplies shall occur in the protected areas.
b. The plan shall specify that if grading occurs during the rainy season (October 1 -
March 31), the applicant undertake the following protective measures to assure offsite
sedimentation is minimized to the maximum extent feasible: install or construct temporary
sediment basins (including debris basins, desilting basins or silt traps), temporary drains
and swales, sand bag barriers and/or silt fencing; stabilize any stockpiled fill with geofabric
covers or other appropriate cover; install geotextiles or mats on all cut or fill slopes; and
close and stabilize open trenches as soon as possible.
These erosion and sediment control measures shall be required on the project site prior to
or concurrent with the initial grading operations and maintained throughout the
development process. All sediment should be retained on-site unless removed to an
approved dumping location either outside the coastal zone or to a site within the coastal
zone permitted to receive fill.
c. The plan shall also include temporary erosion control measures should grading or site
preparation cease for a period of more than 30 days, including but not limited to:
stabilization of all stockpiled fill, access roads, disturbed soils and cut and fill slopes with
geotextiles and/or mats, sand bag barriers, and/or silt fencing; and installation of temporary
drains and swales and sediment basins. These temporary erosion control measures shall
be monitored and maintained until grading or construction operations resume.
The permittee shall undertake development in accordance with the approved erosion control
plans. Any proposed changes to the approved plans shall be reported to the Executive Director.
No changes to the plans shall occur without a Coastal Commission approved amendment to this
4,3
coastal development permit _,iless the Executive Director determine.. Jiat no amendment is
legally required.
6. Drainage and Polluted Runoff Control Plan. PRIOR TO ISSUANCE OF THE COASTAL
DEVELOPMENT PERMIT, the applicant shall submit for the review and approval of the Executive
Director, final drainage and runoff control plans including supporting calculations. The plan shall
be prepared by a licensed engineer and shall incorporate structural and non-structural Best
Management Practices (BMPs) designed to reduce the pollutant load of runoff to the maximum
extent feasible, and reduce or eliminate any potential increases in the volume or velocity of runoff
leaving the site. In addition to the specifications above, the plan shall be in substantial
conformance with the following requirements:
a. Selected BMPs (or suites of BMPs) shall be designed to treat, infiltrate or filter stormwater
from each runoff event, up to and including the 85th percentile, 24-hour runoff event for
volume-based BMPs, and/or the 85th percentile, 1-hour runoff event, with an appropriate
safety factor, for flow-based BMPs.
b. BMPs shall be selected to address the pollutants of concern for this development,
including sediments, nutrients, pesticides, fertilizers, metals, petroleum hydrocarbons,
trash and debris, and organic matter.
c. Runoff shall be conveyed off site in a non-erosive manner. Energy dissipating measures
shall be installed at the terminus of all outflow drains.
d. Drainage from all roofs, parking areas, driveway area, and other impervious surfaces on
the building pad shall be directed through vegetative or other media filter devices effective
at removing and/or treating contaminants such as petroleum hydrocarbons, heavy metals,
and other particulates.
e. Opportunities for directing runoff into pervious areas located on-site for infiltration and/or
percolation of rainfall through grassy swales or vegetative filter strips, shall be maximized.
f. The plan shall include provisions for maintaining the drainage system, including structural
BMPs, in a functional condition throughout the life of the approved development. The plan
shall include an identification of the party or entitvu'es) responsible for maintaining the
various drainage systems over its lifetime and shall include written acceptance bv the
responsible entitv(ies). Such maintenance shall include the following: (1) BMPs shall be
inspected, cleaned and repaired when necessary prior to and during each rainy season,
including conducting an annual inspection no later than September 30th each year and (2)
should any of the project's surface or subsurface drainage/filtration structures or other
BMPs fail or result in increased erosion, the applicant/landowner or successor-in-interest
shall be responsible for any necessary repairs to the drainage/filtration system or BMPs
and restoration of the eroded area. Should repairs or restoration become necessary, prior
to the commencement of such repair or restoration work, the applicant shall submit a
repair and restoration plan to the Executive Director to determine if an amendment to this
coastal development permit or a new coastal development permit is legally required to
authorize such work.
g. Parking lots susceptible to stormwater should be swept with a vacuum regenerative
sweeper on a regular basis.
h. The golf course shall be equipped with flow reducers or shutoff valves triggered by a
pressure drop so that broken pipes do not increase flow to the storm drains;
i. The applicant shall H.ovide, for the review and approval of tf._ executive Director, plans
for a self-contained cart washing facility that is equipped with a pre-treatment facility, and,
if significant discharge is proposed, is connected to the sanitary sewer;
j. All storm drain inlet structures must be equipped with trash racks, which shall be
maintained by the applicant and/or authorized agent.
k. Storm drains shall be stenciled with<water quality warnings indicating that the drain flows
to the lagoon.
The permittee shall undertake development in accordance with the approved drainage and runoff
control plans. Any proposed changes to the approved drainage and runoff control plans shall be
reported to the Executive Director. No changes to the approved plans shall occur without an
amendment to this coastal development permit unless the Executive Director determines that no
amendment is legally required.
7. Water Quality Monitoring Plan. PRIOR TO ISSUANCE OF THE COASTAL
DEVELOPMENT PERMIT, the applicant shall submit for the review and approval of the Executive
Director, a water quality monitoring plan to address the quality of runoff prior to leaving the site or
entering the onsite riparian area. The plan shall describe the methodology for monitoring,
including specific threshold levels and sampling protocols, location of monitoring sites, schedule
for monitoring, and reporting of results. The monitoring plan shall also include a contingency plan
describing the actions to be taken if water quality impacts are discovered. In addition to
specifications above, the plan shall be in substantial conformance with the following requirements:
a. The plan shall require monitoring of the following pollutants: nitrates, nitrites, phosphates,
dissolved oxygen, pH, total suspended solids (TSS), acute and chronic toxicity, and shall
indicate the proposed sampling frequencies. Total suspended solids (TSS) shall be
sampled for at the same frequency as the nutrients.
b. The plan shall specify maximum threshold levels for each water quality parameter.
c. The plan shall specify sampling protocols to be used for each water quality parameter.
Measurements must be precise enough to evaluate compliance with applicable water
quality threshold levels.
d. Sampling for baseline data shall be conducted a minimum of three (3) times and during
different level storms to acquire a representative sample of water quality conditions at the
site.
e. Results of monitoring shall be submitted to the Executive Director annually.
f. If any water quality threshold levels referred to above in b) are exceeded, the applicant (or
successor interest) shall notify the Executive Director of the exceedances and potential
impacts and within 48 hours of receipt of the monitoring data. At the same time the
applicant shall consult with the Executive Director regarding the need for additional
sampling to evaluate the exceedance or corrective action to minimize water quality
impacts. The applicant shall report to the Executive Director on the possible causes of the
exceedance and proposed corrective actions within 30 days of the initial receipt of the
data.
g. If any water quality impacts persist after three years of detection, not withstanding any
corrective actions taken by the applicant, all use of the chemicals that exceed water quality
threshold levels shall cease.
8. Turf and Pest Management Plan. PRIOR TO ISSUANCE OF THE COASTAL
DEVELOPMENT PERMIT, the applicant shall submit to the Executive Director for review and
approval, a detailed turf and pest management plan for the golf course portion of the development.
The plan shall comply with the following requirements:
a. Turf management practices shall utilize state-of-the-art environmental methods to minimize
fertilizer use, water use and chemical pest control to the maximum extent feasible, to avoid
impacts to native upland habitat, wetlands, riparian areas, and water quality.
b. The plan shall favor non-chemical strategies over chemical strategies for managing onsite
pests. Chemical strategies shall only be employed after all other strategies have been
used and proven ineffective. This shall be demonstrated by providing written notice to the
Executive Director of the non-chemical strategies that will be used, the reasons for their
ineffectiveness, and the chemical strategies that are being considered.
The permittee shall undertake development in accordance with the approved turf and pest
management plan plans. Any proposed changes to the approved plans shall be reported to the
Executive Director. No changes to the approved plans shall occur without an amendment to this
coastal development permit unless the Executive Director determines that no amendment is
legally required.
9. Public Golf Course Facility. The golf course, clubhouse, parking areas, driving range,
conference center and pads for future industrial/golf related uses shall be operated as facilities
open to the general public. Any proposed change in the level of public access and/or public use
shall require an amendment to this permit. Signage shall be provided indicating that the onsite
facilities as provided above are open to the public.
10. Open Space and Conservation Easement.
A. No development, as defined in Section 30106 of the Coastal Act, shall occur in
those areas indicated as Preservation Areas in Exhibit 7 (City Golf Course, Revised
Figure 8 of the Carlsbad HMP, CAR LCPA 1-03B), except for temporary impacts
associated with construction of the two approved golf cart path crossings, consistent
with Special Condition #3, and onsite habitat restoration/revegetation activities as part
of an approved coastal sage scrub mitigation plan, consistent with Special Condition
#2.
B. PRIOR TO ISSUANCE OF THE COASTAL DEVELOPMENT PERMIT, the
applicant shall execute and record a document in a form and content acceptable to
the Executive Director, irrevocably offering to dedicate to a the California Department
of Fish and Game and the U.S. Fish and Wildlife Services, or their successor
agencies, an open space and conservation easement over all onsite habitat
preservation areas, and all mitigation areas (onsite and/or offsite) that will be utilized
to address onsite impacts to habitat. The recorded document shall include legal
descriptions of both the applicant's entire parcel and the easement area(s). The
recorded document shall also reflect that development in the easement area(s) is
restricted as set forth in this permit condition.
C. The offer to dedicate shall be recorded free of prior liens and encumbrances which
the Executive Director determines may affect the interest being conveyed. The offer
shall run with the land in favor of the People of the State of California, binding all
successors and assignees, and shall be irrevocable for a period of 21 years, such
period running from the date of recording.
11. Protection of the Coastal California Gnatcatcher. To prevent breeding/nesting season
impacts to the coastal California gnatcatcher (Polioptila californica californica), the permittee shall
not undertake any clearing or grading activities on the golf course site between March 1 and
August 15, unless approved in writing by the U.S. Fish and Wildlife Service and the California
Department of Fish and Game. Herbicide, pesticide and/or fertilizer applications shall occur
outside of a 100-foot exclusion zone to avoid drift towards nesting areas. A worker education
program shall be implemented to ensure that all golf course construction and maintenance
workers know the location of all gnatcatcher nests and are aware of the above-described
protection measures.
During the non-breeding season (August 16 through February 28), if construction activities will
produce noise levels greater than 60 db, gnatcatcher-occupied habitats within the habitat preserve
areas shall be shielded from the sight and sound of such activities taking place within 50 feet of
the occupied habitat, using the following technique. During construction, the gnatcatcher habitat
will be shielded from sight and sound by 8-foot high, solid 1-inch thick barriers. A biological
monitor must be onsite daily to ensure that the construction activities are having no negative
impact on gnatcatchers.
The permittee shall staff a qualified monitoring biologist on-site during all CSS clearing and any
other project-related work adjacent to CSS to be avoided. The biologist must be acknowledgeable
of gnatcatcher biology and ecology. The permittee shall ensure that prior to and during the
clearing of coastal sage scrub and/or any other suitable gnatcatcher habitats outside the
gnatcatcher breeding season, the biologist shall locate any individual gnatcatchers on-site and
direct clearing to begin in an area away from birds. In addition, the biologist shall walk ahead of
clearing equipment to flush birds towards areas of habitat that will be avoided and/or which are
located within the permanent preserve areas.
12. Open Space Restriction.
A. No development, as defined in Section 30106 of the Coastal Act, shall occur in habitat
buffer areas as required in Special Conditions #2 and 4, and as identified in the final
landscape plans, and as described and depicted in an Exhibit attached to the Notice of
Intent to Issue Permit (NO!) that the Executive Director issues for this permit, except for
1. approved landscaping activities and plantings and/or restoration and
revegetation of native habitat according to the final coastal sage scrub mitigation
plan; and
B. PRIOR TO ISSUANCE BY THE EXECUTIVE DIRECTOR OF THE NOI FOR THIS
PERMIT, the applicant shall submit for the review and approval of the Executive Director,
and upon such approval, for attachment as an Exhibit to the NOI, a formal legal description
and graphic depiction of the portion of the subject property affected by this condition, as
generally described above and shown on Exhibit 7 attached to this staff report.
C. PRIOR TO ANY CONVEYANCE OF THE PROPERTY THAT IS THE SUBJECT OF THIS
COASTAL DEVELOPMENT PERMIT, the applicant shall execute and record a deed
restriction, in a form and content acceptable to the Executive Director: (1) indicating that,
pursuant to this permit, the California Coastal Commission has authorized development on the
subject property, subject to terms and conditions that restrict the use and enjoyment of that
property (hereinafter referred to as the "Standard and Special Conditions); and (2) imposing all
Standard and Special Conditions of this permit as covenants, conditions and restrictions on the
use and enjoyment of the Property. The restriction shall include a legal description of the
applicant's entire parcel or parcels. It shall also indicate that, in the event of an extinguishment
or termination of the dt. j restriction for any reason, the Stand. J and Special Conditions of
this permit shall continue to restrict the use and enjoyment of the subject property so long as
either this permit or the development it authorizes - or any part, modification or amendment
thereof - remains in existence on or with respect to the subject property.
13. Any future revisions to the golf course layout and/or design which may be necessary to
address golf course operations or any other reason shall require an amendment to this permit.
Any such revisions to the golf course shall occur within the approved developable area in the least
environmentally damaging manner that is most protective of the sensitive resources within the
habitat preserve. No impacts to resources within the preserve shall be permitted.
14. Technical Advisory Panel. An independent technical advisory panel of environmental and
agency representatives shall be provided the opportunity to review and comment on the
management plans and ongoing monitoring reports. This will allow for meaningful input by all
parties interested in the water quality in the Agua Hedionda Lagoon, and will assist the Coastal
Commission staff and the City in effectively assuring the environmental quality of the golf course.
All review and comments will be requested to be submitted within 45 days of receipt of draft plans.
The Executive Director of the California Coastal Commission shall have final authority over the
determination of condition compliance, unless it is determined that the item should be referred to the
Commission.
A-6-CII-00-087p
CITY OF CARLSBAD
PLANNING DEPARTMENT
1635 Faraday Avenue
Carlsbad CA 92008
ENDANGERED SPECIES ACT INCIDENTAL TAKE PERMIT
1. Permit Number
HMP 04-01
3. Name of Project
Carlsbad Municipal Golf Course
2. Name of Permittee
City of Carlsbad, Recreation Department
4. Contact Name and Phone Number
JohnCahill 602-2726
5. Location Where Authorized Activity May Be Conducted
City owned site located generally north or Palomar Airport Road, south of Faraday Avenue,
east of Hidden Valley Road, and west of McClellan-Palomar Airport.
6. Other Related Entitlements
CUP 97-07
7. Conditions of Permit
• The applicant shall comply with all conditions of approval and mitigation measures
contained in CUP 97-07, EIR 97-01, and Coastal Development Permit A-6-CII-00-87
issued by the Coastal Commission.
• The applicant shall comply with all applicable provisions of the approved Habitat
Management Plan. See attached Findings.
*T)J 1"^Renommended for approval V c-"l *"*
8. S
Dat(
Signature of Planning Director
*: \7^b/O/r>
EXHIBIT E-5
PLANNING DIRECTC i=INDINGS FOR ISSUANCE OF INCL ,NTAL TAKE PERMIT
These Findings accompany Carlsbad HMP Permit No. 04-01. In issuing the permit, the Planning
Director finds as follows:
1. That the Carlsbad Municipal Golf Course has received all necessary permits,
entitlements and approvals from the City of Carlsbad, the California Coastal
Commission, and all other agencies having jurisdiction.
2. That the Carlsbad Municipal Golf Course is shown as a Proposed Hardline Project in the
final approved Habitat Management Plan as Figure 8 Revised. A Grading Permit for the
project will be issued which conforms to the areas of impact and preservation as shown
in Figure 8.
3. That authorization to take species of concern is subject to continuous compliance with all
provisions of the Habitat Management Plan for Natural Communities in the City of
Carlsbad (HMP), the Citywide Incidental Take Permit issued for the HMP, the
Implementing Agreement, the Terms and Conditions of the Incidental Take Permit, and
the Biological Opinion.
4. That authorization to take species of concern is subject to continuous compliance with all
mitigation measures as stated in EIR 97-01 and all conditions of approval of Coastal
Development Permit A-6-CII-00-87, including but not limited to onsite revegetation of
coastal sage scrub and Southern Maritime Chaparral, offsite acquisition in the County
Gnatcatcher Core Area, recordation of conservation easements over all conserved
areas, seasonal grading restrictions, and management and monitoring in perpetuity by a
qualified conservation entity.
5. That authorization to take species of concern is subject to continuous compliance with
the provisions of Volumes I, II and III of the Multiple Habitat Conservation Program and
the Final Environmental Impact Statement/Environmental Impact Report for Threatened
and Endangered Species Due to Urban Growth within the Multiple Habitat Conservation
Program Planning Area (SCH No. 93121073).
6. That all impacts to habitat and all take of species will be incidental to otherwise lawful
activities related to construction and operation of a public golf course.
7. That the project design as approved by the City of Carlsbad and the California Coastal
Commission has avoided and minimized impacts to wildlife habitat and species of
concern to the maximum extent practicable.
8. That adequate funding has been provided to address changed circumstances and
adaptive management needs that may be reasonably anticipated in the future,
consistent with the HMP Implementing Agreement.
9. That the incidental take of species of concern as a result of the project will not
appreciably reduce the likelihood of survival and recovery of the species in the wild due
to compliance with all of the above stated requirements, as well as ongoing monitoring
and reporting to the wildlife agencies and the public.
APPROVED
Planning Director " Date
~70
UM/UB/ZUU4 U»:48 KAA 7B04315S02 US FISH AND WILDLIFE &002
EXHIBIT 4
United States Department of the Interior
HSH AND WILDLIFE SERVICE
Ecological Services
Carlsbad Fish and Wildlife Office
6010 Hidden Valley Road
Carlsbad, California 92009
In Reply Refer To:
FWS-SDG-1188.1 SEP 0 8 2004
Mr. Michael Holzmiller
Carlsbad Planning Department
1635 Faraday Avenue
Carlsbad, California 92008
Re: Mitigation for the City of Carlsbad's Proposed Municipal Golf Course
Dear Mr. Holzmiller:
The U.S. Fish and Wildlife Service (Service) has reviewed the information provided by the City
of Carlsbad (City) regarding the purchase of 51.6 acres of coastal California gnatcatcher
(Polioptila californica califomica; gnatcatcher) habitat to mitigate for impacts from the City's
proposed municipal golf course. This information included an exhibit which identified the exact
location of the 51.6 acres and the conservation easement deed.
Within the Multiple Habitat Conservation Plan (MHCP) and the City's Subarea Plan (HMP), the
City has an obligation to effectuate the conservation and conveyance of 307.6 acres of land
within the MHCP core gnatcatcher area. One means by which the City proposes to help meet
this obligation is to acquire 51.6 acres of habitat occupied by five pairs of gnatcatchers to
partially mitigate for impacts that would occur from the development of the municipal golf
course. It is our understanding that this condition is met by the purchase of 51.6 acres of
mitigation land as identified on the enclosed exhibit for the following reasons: 1) the land is
located within the area the Service considers as contributing to the gnatcatcher core area within
the MHCP; 2) a conservation easement will be placed over all 51.6 acres with the California
Department of Fish and Game as third party beneficiary; 3) records provided by the City indicate
that at least five pairs of gnatcatchers occupy the 51.6 acres that will be preserved; and 4) the
lands will be managed by the Center for Natural Lands Management with a sufficient endowment
to ensure the management of land to provide gnatcatcher habitat in perpetuity.
In addition, the Service accepts the City's proposal to acquire the designated lands and upon
acquisition and implementation of the conditions outlined above, the City may apply the 51.6
acres towards the land acquisition obligation under the MHCP and HMP. If for any reason the
City does not proceed with development of the municipal golf course, the City shall have the
right to apply the 51.6 acres to mitigate for another public project that would require mitigation
for impacts to coastal sage scrub. If the City desires to apply the 51.6 acres towards mitigation
credit for private projects, the Service will work with the City to establish an appropriate
mitigation bank to facilitate such a transfer.
TAKE PRIDE
u»/ up/U5 ANi) W1LUL1MS 10003
Mr. Holzmiller (FWS-SDG-1181.1)
The Service is pleased to know the City of Carlsbad is moving forward on such obligations pre-
permit issuance. If you have any questions, please contact Lee Ann Carranza of the Service at
(760) 431-9440 extension 292.
Sincerely,
Therese O'Rourke
Assistant Field Supervisor
U.S. Fish and Wildlife Service
Enclosure
San Diego Gas & Electric
8335 Century Park Court
San Diego, CA 92123
A (^Sempra Energy utility"
June 23, 2005
City of Carlsbad
Recreational Department
1200 Carlsbad Village Drive.
Carlsbad, CA 92123
Attn: John Cahill, Municipal Projects Manager
LETTER OF PERMISSION FOR GRADING
AND CONSTRUCTION OF IMPROVEMENTS
Dear Mr. Cahill:
San Diego Gas & Electric Company (SDG&E) is the owner of a 100', 150'; & 200' Electric
Transmission Easement and a 20' Gas Transmission Easement located in and around the
following legal description: THOSE PORTIONS OF SECTION 35, TOWNSHIP 12 SOUTH,
RANGE 4 WEST AND SECTION 2, TOWNSHIP 13 SOUTH, RANGE 4 WEST, SAN
BERNARDINO MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF, SAID
PROPERTY BEING MORE PARTICULARLY DESCRIBED IN EXHIBIT "A" OF QUIT
CLAIM DEED RECORDED MARCH 28, 1989 AS FILE NO. 89-157040 OF O.R. (A.P.N.
212-010-05, 07, 11, 12, 13, & 15; A.P.N. 212-041-12 TO 36; A.P.N. 212-082-01 TO 10; A.P.N.
212-081-01 TO 21)
(SDG&E Right of Way No. 31580, Recorded April 15, 1954 in Book 5205, Page 419 of O.R.;
SDG&E R/W No. 31581, Recorded May 6, 1954 in Book 5230, Page 131 of O.R.; SDG&E R/W
No. 45062, Recorded August 14, 1957 in Book 6706, Page 514 of O.R.; SDG&E R/W No.
45064, Recorded September 27, 1957 in Book 6767, Page 25 of O.R.; SDG&E R/W No. 31564,
Recorded April 15, 1954 in Book 5205, Page 416 of O.R.; SDG&E R/W No. 31565, Recorded
May 3, 1954 in Book 5525, Page 397 of O.R.; SDG&E R/W No. 45474, Recorded May 11, 1961
as Doc. No. 81362 of O.R.; SDG&E R/W No. 45476, Recorded May 15, 1961 as Doc. No.
82981 of O.R.).
We have reviewed and approved the Grading & Improvement Plans for Carlsbad Municipal Golf
Course - Phase II, accepted April 4, 2005, which shows the proposed grading and improvements
on the property subject to our easement, attached hereto as Exhibit 'A' (27 sheets).
Carlsbad Golf Course.doc EXHIBIT E-6
Permission is hereby granted to City of Carlsbad (Permittee), to grade and construct
improvements as shown on said plan, subject to the following conditions:
1. Expiration:
This "Permission to Grade" shall expire if grading does not commence within 6
months from the date of this letter, or work is not diligently pursued to completion.
2. Submittals:
2.1. Permittee agrees to supply SDG&E with 'as built' grading, improvement, and profile
plans to SDG&E specifications, if requested.
2.2. Permittee agrees to submit for review and approval, a blasting plan prior to blasting, if
blasting is required.
3. Pre-Construction Meeting:
SDG&E's Land Management Representative (LMR) must be invited with at least
three (3) working days prior notice.
4. Grading:
4.1. At least twenty-four (24) hours notice must be given to SDG&E's LMR before start of
work. Field changes to plans within said easement shall be approved in writing by
SDG&E LMR.
4.2. Permittee is responsible to call DIG ALERT at 1-800-227-2600 for all underground
mark-out locations 48 hours before digging.
4.3. SDG&E standby personnel are required when grading or ground penetration occurs
within the gas transmission easement or within ten (10) feet of the gas line when in a
franchise position.
4.4. No power-operated equipment shall be used within two (2) feet of any portion of the gas
line, only hand digging is allowed and an SDG&E standby is required.
4.5. If any contact is made with the gas line or its coating, SDG&E must be notified
immediately at 1-800-411-7343 and the area left exposed.
4.6. The gas easement shall be staked with ribboned lath at fifty-foot (50') increments and
the staking shall be maintained at all times during grading and construction of the
project.
Carlsbad Golf Course.doc
4.7. SDG&E reserves the right to inspect and perform quality control work during
construction. SDG&E standby personnel are authorized to stop work around the gas
line if all required precautions are not strictly adhered to.
4.8. Equipment crossings of the gas line must be designed to eliminate any possible damage
to the gas line and approved by SDG&E gas transmission engineering.
4.9. Clearance of (35) feet minimum between the SDG&E electric transmission wires and the
natural ground shall be maintained on any given day, noting line sags vary depending
on ambient temperature and line current. All requirements, including but not limited
to OSHA, CAL-OSHA, ANSI, NIOSH, and NEC for clearances when working
around energized electrical facilities must be maintained.
4.10. No grading shall be allowed within ten (10) feet of a single wood pole structure or
anchor, or fifteen (15) feet from any multi-wood pole structure (H-frame, 3-pole, etc),
or twenty (20) feet from any electric steel lattice towers or thirty (30) feet of steel
poles. All measurements are taken from the face of pole or face of foundation.
5. Special Conditions:
5.1. All new SDG&E access roads shall be surfaced with an all-weather material. All access
driveways shall have a 30' wide commercial grade apron. Roads shall be compacted
to 90% relative maximum compaction. SDG&E requires that Permittee submit a
complete compaction report upon completion of all areas of grading within the
SDG&E gas transmission easement. Appropriate plans must be made to protect the
affected areas from storm water.
5.2. All trees planted within SDG&E's easement, shall be no more than 15.00 feet in height
at maturity and shall not restrict SDG&E's access to any of its facilities.
5.3. Irrigation systems shall not spray directly onto any electric facilry, access road or
maintenance pad.
6. Erosion Control:
6.1. All disturbed and created slopes, within the SDG&E electric transmission easement,
shall be hydro-seeded or planted by Permittee with an SDG&E approved mix.
6.2. All drainage shall be designed to prevent erosion of SDG&E easement and access roads.
7. Storage:
7.1. This permission to grade letter does not permit storage of equipment, materials, dirt or
debris on the easement or SDG&E fee owned property.
CarlsbadGolfCourse.doc ^7
8. Access:
8.1. Access to all SDG&E facilities shall be maintained at all times. All costs associated
with restoration of access and all associated damages shall be borne by Permittee.
8.2. All gates shall provide for SDG&E access by padlock, lock-box or kieyed bypass both
during and upon completion of construction. Location and construction of gates to be
approved by SDG&E LMR.
9. Outstanding Agreements:
Permittee agrees to pay for, sign and/or have signed all Consent Agreements, Consent to Use of
Land Agreements and/or Joint Use Agreements between SDG&E and owner or public agencies
who encroach upon the SDG&E easements. Said agreements shall be subject to the revocability
clause as stated in the California Public Utility's Commission's General Order 69-C as shown on
website http .V/www.cpuc.ca. gov/PUBLISHED/Graphics/645 .PDF.
10. Indemnification:
10.1. Permittee agrees to assume all risk of loss, damage to property and/or injury and/or
death to persons, and to indemnify and hold SDG&E harmless from any and all
liability in any way arising from the proposed grading or construction of
improvements.
10.2. SDG&E shall not be responsible in any manner for any maintenance or repair of the
proposed grading or improvements. This includes, but is not limited to, drainage
and/or erosion problems or damage caused to improvements that were not constructed
to take the weight or activities of vehicles and equipment owned by or working on
behalf of SDG&E.
11. Terms and Conditions:
The terms and conditions of this approval shall benefit and bind Permittee its
successors, assigns, agents or contractors.
12. Posting:
This permission letter shall be posted on the job site at all times.
Carlsbad GolfCourse.doc
Should you have any questions or require additional assistance, please call me at (858) 654-1201.
APPROVED BY:
San Diego Gas & Electric Company
Michael J. Wilh
Land Management Representative
I ACCEPT THE AFOREMENTIONED CONDITIONS:
I hereby have the authority to sign,
City of Carlsba
Print Name:
Title:
Date:U'Z1
Carlsbad GolfCourse.doc