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HomeMy WebLinkAbout2002-09-24; City Council; 16904; EIR for Proposed Cantarini Ranch & Holly SpringsCITY OF CARLSBAD -AGENDA BILL 7 m: DEPT. HD. 4B# 16,904 MTG. 9-24-02 DEPT. PLN .pf: ENVIRONMENTAL IMPACT REPORT FOR THE PROPOSED CANTARlNl RANCH AND HOLLY SPRINGS SUBDIVISIONS AGREEMENTS FOR THE PREPARATION OF AN CITY AlT EIR 02-02 CITY MGR RECOMMENDED ACTION: That the City ADOPT Resolution No. 2o02-286 , APPROVING agreements with Bentley Equity, LLC and Mooney & Associates for the preparation of an Environmental Impact Report (EIR 32-02) for the Cantarini Ranch and Holly Springs subdivisions. ITEM EXPLANATION: Request for Proposals for the preparation of a joint EIR for the Cantarini Ranch and Holly Springs subdivisions were sent to six (6) consulting firms, three (3) of which submitted formal proposals to the Planning Department. The Planning Department conducted a thorough review of all three (3) of the proposals, the responses to the scope of work, the experience of the individuals involved and the firm itself, performance and product delivery schedules, and costs submitted. After reviewing all of the proposals, staff recommends that Mooney & Associates be hired to prepare the EIR for this project. The Mooney &Associates proposal was well prepared, exhibited a thorough understanding of the scope of work, and included a schedule and cost proposal that was acceptable to staff and the applicant given the complexities of the project. The firm, and the individuals who will conduct the Cantarini RanchlHolly Springs Joint EIR are experienced with this type of work. Therefore, staff recommends the attached consulting agreement with Mooney & Associates and the agreement with Bentley Equity, LLC as the applicant be approved. FISCAL IMPACT: The total cost of the consulting services to prepare the EIR is $134,935.00. The funds will be provided by the applicant, Bentley Equity, LLC, per the attached applicant agreement. EXHIBITS: 1. City Council Resolution No. for the Preparation of an EIR, and Attachment 2: Agreement between City and Bentley Equity, LLC , with Attachment 1: Agreement with Consultant for Payment of the EIR Consultant. 2002-286 I I * 1 - 4 c - t - I 8 9 la 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 21 28 RESOLUTION NO. 2o02-286 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING CONSULTING AGREEMENTS WITH MOONEY AND ASSOCIATES FOR THE PREPARATION OF AN ENVIRONMENTAL IMPACT REPORT FOR THE CANTARlNl RANCH AND HOLLY SPRINGS SUBDIVISIONS AND AGREEMENT WITH THE CITY WITH BENTLEY EQUITY, LLC FOR PAYMENT OF THE PREPARATION OF THE EIR The City Council of the City of Carlsbad, California, does hereby resolve as follows: I 1. That a consulting agreement with Mooney & Associates for consulting services to prepare an Environmental Impact Report (EIR) for the Cantarini Ranch and HoH) I Springs subdivisions (Attachment I), and an agreement with Bentley Equity, LLC for the payment of the EIR consultant (Attachment 2) are hereby approved and the Mayor is authorized 1 to execute said agreements. 2. Following the mayor’s execution of said agreements, the City Clerk is directed to forward copies of this resolution and said agreements to Mooney & Associates, attention Michael Page, 9903 Businesspark Avenue, San Diego, CA 92131; Bentley Equity, LLC, 7449 Magellan St., Carlsbad, CA 92009; and the Planning Department. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad on the 24th day of SEPTEMBER 2002, by the following vote, to wit: AYES: Council Members Lewis, Finn,ila, Hall NOES: None ABSENT Council Members Kulchin, Nygaard 11 ATTEST: NE M. WOOD, City Clerk (SEAL) ATTACHMENT 1 AGREEMENT WITH MOONEY AND ASSOCIATES FOR THE PREPARATION OF AN ENVIRONMENTAL IMPACT REPORT (EIR 02-02) THIS AGREEMENT, made thisAyday of ~f'nZb.(Sb~ 20=, between the CITY OF CARLSBAD, a municipal corporation of the State of California, hereinafter referred to as "CITY", and American Pacific Environmental Consultants Inc., dba Mooney & Associates hereinafter referred to as "CONTRACTOR". RECITALS WHEREAS, the CITY has entered into an agreement with Bentley-Monarch, LLC hereinafter called applicant, wherein the CITY agrees to prepare an Environmental Impact Report (EIR) for the proposed project identified as Cantarini Ranch - CT 00-18 et. al. and Holly Springs - CT 00-21 et. al. which is located on the northeast side of El Camino Real, east of the future extension of College Boulevard and more precisely shown on the plat marked Attachment 1, attached hereto and made a part hereof: and WHEREAS, the CONTRACTOR has the qualifications to prepare the required Environmental Impact Report; and WHEREAS, it is understood that the CONTRACTOR shall be an independent contractor of the CITY; NOW, THEREFORE, in consideration of their mutual covenants and conditions, the parties hereto agree as follows: 1. CONTRACTOR OBLIGATIONS CONTRACTOR shall prepare an Environmental Impact Report on the subject project in accord with the California Environmental Quality Act as implemented by the State Guidelines and by the CITY in Title 19 of the Carlsbad Municipal Code and its 1 Rev. 08-08-97 implementing resolutions. In carrying out this obligation the CONTRACTORS duties shall include the following: (a) The CONTRACTOR shall, consistent with the Work Program contained in Attachment 2, (1) make all necessary and required field explorations, reviews and tests; (2) make all necessary and required laboratory tests and analyses; (3) appear and be prepared to answer questions and prepare testimony on the final Environmental Impact Report at all public hearings before the Planning Commission and the City Council prior to the certification of the report; (4) make all reports necessary to comply with the requirements of this section. Before preparing the draft report, the CONTRACTOR shall submit five copies of a preliminary report (screen check EIR) to the Planning Director for staff review. The CONTRACTOR shall revise the preliminary report as requested by staff in order to make it suitable for draft EIR review. (b) CONTRACTOR shall prepare a draft report in compliance with the Work Program contained in Attachment 2 on file at the Planning Department (unless otherwise stated in this agreement), attached hereto and made a part hereof and with applicable state law and CITY ordinances. The CONTRACTOR shall submit to CITY fifty copies plus a reproducible master of the draft Environmental Impact Report to the CITY. (c) CONTRACTOR shall attempt to determine as soon as possible in the study of the area involved, those factors which could severely inhibit or prohibit the proposed project. If it appears that such factors are present, CONTRACTOR shall so inform the Planning Director who in turn will discuss with the applicant the feasibility of continuing with the report. The objective of this subsection of the agreement is to minimize the cost if these adverse factors exist. 2 Rev. 08-08-97 (d) CONTRACTOR shall prepare and file with the CITY written responses to all comments received subsequent to public notice that the draft Environmental Impact Report has been filed. CONTRACTOR shall also prepare any response necessary to matters raised at the public hearings. The written responses shall be prepared in a form that will permit the responses to be incorporated into the final Environmental Impact Report. 2. CITY OBLIGATIONS (a) The CITY will make payment to the CONTRACTOR as provided for in this agreement. (b) The CITY will make available to the CONTRACTOR any documents, studies, or other information in its possession related to the proposed project. (c) The CITY will review the Preliminary Report presented by the CONTRACTOR within fourteen working days of their receipt and make written comments to the CONTRACTOR within that time period. (d) The CITY shall provide the CONTRACTOR with copies of all written comments received on the draft Environmental Impact Report subsequent to public notice that the draft Environmental Impact Report has been filed and is available for public review. 3. TIME OF COMPLETION Time is of the essence in carrying out the terms of this agreement. It is understood that inclement weather conditions may delay the completion of field work. The CONTRACTOR will be allowed as many additional days as are necessary to compensate for days lost due to inclement weather. The CONTRACTOR shall submit to the CITY five copies of the Preliminaj, Environmental Impact Report within six weeks 3 Rev. 08-08-97 of the signing of this agreement by both concerned parties. The CONTRACTOR shall submit to the CITY fifty copies of the draft Environmental Impact Report within ten working days of the completed staff review of the Preliminary Environmental Impact Report. 4. PAYMENT The CONTRACTOR will be paid a maximum of One Hundred Thirty-four Thousand and Nine Hundred Thirty-five Dollars ($ 134,935.00) for all work necessary to carry out the requirements of this agreement. Actual payment shall be based on the cost of the report based on the costs as set forth in Attachment 3 on file at the Planning Department. The CONTRACTOR shall be paid within thirty (30) days, in response to monthly invoices, based on the percentage of the tasks completed according to Attachment 3. The final ten (10) percent of the contract amount will be paid, not to exceed the maximum amount provided in this agreement, within thirty (30) days after receipt of invoice, to be submitted after the certification of the Environmental Impact Report by the City Council. 5. LIMITS OF THE OBLIGATION The limits of the obligation of the CITY under this agreement is the sum of $ 134,935.00 which amount is estimated to be sufficient to compensate the CONTRACTOR for all services performed hereunder during the terms of this agreement. In the event at any time it appears to the CONTRACTOR that said sum may not be sufficient, he shall immediately so notify the Planning Director. He will not perform any work or incur any obligation beyond said sum of without appropriate amendment to this agreement. Ill 4 Rev. 08-08-97 _i 6. , CHANGES IN WORK If, in the course of this contract, changes seem merited by the CONTRACTOR or the CITY and informal consultations indicate that a change in the conditions of the contract is warranted, the CONTRACTOR or the CITY may request a change in the contract. Such changes shall be processed by the CITY in the following manner. A letter outlining the required changes shall be forwarded to the CITY or CONTRACTOR to inform them of the proposed changes along with a statement of estimated changes in charges or time schedule. After reaching mutual agreement on the proposal, a supplemental agreement shall be prepared by the CITY and approved by the CITY according to the procedures described in Carlsbad Municipal Code Section 3.28.172. Such supplemental agreement shall not render ineffective or invalid unaffected portions of the agreement. Changes requiring immediate action by the CONTRACTOR or the CITY shall be ordered by the Planning Director who will inform a principal of the CONTRACTORS firm of the necessity of such action and follow up with a supplemental agreement covering such work. The lump sum amounts detailed in this agreement shall be adjusted for changes, either additive or deductive, in the scope of work, provided such changes are processed according to the procedures in this paragraph. 7. COVENANTS AGAINST CONTINGENT FEES The CONTRACTOR warrants that their firm has not employed or retained any company or person, other than a bona fide employee working for the CONTRACTOR, to solicit or secure this agreement, and that CONTRACTOR has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting 5 Rev. 08-08-97 7 from, the award or making of this agreement. For breach or violation of this warranty, the CITY shall have the right to annul this agreement without liability, or, in its discretion, to deduct from the agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fees, gift, or contingent fee. 8. NONDISCRIMINATION CLAUSE The CONTRACTOR shall comply with the state and federal laws regarding nondiscrimination. 9. TERMINATION OF CONTRACT The CITY may terminate this agreement at any time by giving written notice to the CONTRACTOR of such termination and specifying the effective date thereof, at least fifteen days prior to the effective date of the termination. In the event of termination, all finished or unfinished documents and other materials prepared pursuant to this agreement shall become its property. Upon termination for reasons other than breach of this agreement CITY shall pay CONTRACTOR the reasonable value of the services completed to the date of notice of determination. IO. DISPUTES If a dispute should arise regarding the performance of work under this agreement, the following procedure shall be used to resolve any question of fact or interpretation not otherwise settled by agreement between parties. Such questions, if they become identified as a part of a dispute among persons operating under the provisions of this contract, shall be reduced to writing by the principal of the CONTRACTOR or the CITY Planning Director. A copy of such documented dispute shall be forwarded to both parties involved along with recommended methods of 6 Rev. 08-08-97 8 resolution which would be of benefit to both parties. The CITY Planning Director or principal receiving the letter shall reply to the letter along with a recommended method of resolution within ten (IO) days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the dispute shall be forwarded to the City Council for their resolution through the office of the City Manager. The City Council may then opt to consider the directed solution to the problem. In such cases, the action of the City Council shall be binding upon the patties involved, although nothing in this procedure shall prohibit the parties seeking remedies available to them at law. 11. CLAIMS AND LAWSUITS The CONTRACTOR agrees that any contract claim submitted to the City must be asserted as part of the contract process as set forth in this agreement and not in anticipation of litigation or in conjunction with litigation. The CONTRACTOR acknowledges that if a fake claim is submitted to the City, it may be considered fraud and the CONTRACTOR may be subject to criminal prosecution. The CONTRACTOR acknowledges that California Government Code Sections 12650 et sea., the False Claims Act, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If the City of Carlsbad seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney’s fees. The CONTRACTOR acknowledges that the filing of a false claim may subject the CONTRACTOR to an administrative debarment proceeding wherein the CONTRACTOR may be prevented to act as a contractor on any public work or improvement for a period of up to five (5) years. The CONTRACTOR acknowledges debarment by another jurisdiction is 7 Rev. 08-08-97 7 grounds for the City of Carlsbad to disqualify the CONTRACTOR from the selection process. ': (Initial) ' '1 The provisions of Carlsbad Municipal Code Sections 3.32.025, 3.32.026, 3.32.027 and 3.32.08 pertaining to false claims are incorporated herein by reference. I) (Initial) 12. STATUS OF THE CONTRACTOR The CONTRACTOR shall perform the services provided for herein in CONTRACTORS own way as an independent contractor and in pursuit of CONTRACTORS independent calling, and not as an employee of the CITY. CONTRACTOR shall be under control of the CITY only as to the result to be accomplished, but shall consult with the CITY as provided for in the request for proposal. The persons used by the CONTRACTOR to provide services under this agreement shall not be considered employees of the CITY for any purposes whatsoever. The CONTRACTOR is an independent contractor of the CITY. The payment made to the CONTRACTOR pursuant to the contract shall be the full and complete compensation to which the CONTRACTOR is entitled. The CITY shall not make any federal or state tax withholdings on behalf of the CONTRACTOR or hidher employees or subcontractors. The CITY shall not be required to pay any workers' compensation insurance or unemployment contributions on behalf of the CONTRACTOR or hidher employees or subcontractors, on behalf of the CONTRACTOR. The CONTRACTOR agrees to indemnify the CITY for any tax, retirement contribution, social security, overtime payment, or workers' compensation payment which the CITY may be required to make on behalf of the CONTRACTOR or any employee of the CONTRACTOR for 8 Rev. 08-08-97 id work done under this agreement. The CONTRACTOR shall be aware of the requirements of the Immigration Reform and Control Act of 1986 and shall comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and CONTRACTORS that are included in this agreement. 13. OWNERSHIP OF DOCUMENTS All documents and materials prepared pursuant to this agreement are the property of the CITY. The CITY shall have the unrestricted authority to publish, disclose, distribute and otherwise use, in whole or in part, any reports, data, or other materials prepared under this agreement. 14. REPRODUCTION RIGHTS The CONTRACTOR agrees that all copyrights which arise from creation of the work pursuant to this contract shall be vested in CITY and hereby agrees to relinquish all claims to such copyrights in favor of CITY. 15. RELEASE OF INFORMATION BY CONTRACTOR Any reports, information or other .data, prepared or assembled by the CONTRACTOR under this agreement shall not be made available to any individual or organization by the CONTRACTOR without prior written approval of the CITY. 16. HOLD HARMLESS AGREEMENT CONTRACTOR agrees to indemnify and hold harmless the City of Carlsbad and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorney fees arising out of the performance of the work described herein caused in whole or in part by any willful misconduct or negligent act or omission of the CONTRACTOR, any subcontractor, anyone directly or indirectly 9 Rev. 08-08-97 employed by any of them or anyone for whose acts any of them may be liable, except where caused by the active negligence, sole negligence, or willful misconduct of the City of Carlsbad. CONTRACTOR shall at its own expense, upon written request by the City, defend any such suit or action brought against the City, its officers, officials, employees and volunteers. CONTRACTORS indemnification of City shall not be limited by any prior or subsequent declaration by the CONTRACTOR. 17. ASSIGNMENT OF CONTRACT CONTRACTOR shall not assign this contract or any part hereof or any monies due or to become due thereunder without prior written consent of the CITY. 18. SUBCONTRACTING If the CONTRACTOR shall subcontract any of the work to be performed under this contract by CONTRACTOR, the CONTRACTOR shall be fully responsible to the CITY for the acts and omissions of its subcontractor and of the persons either directly or indirectly employed by its subcontractor, as it is for the acts and omissions of persons directly employed by it. Nothing contained in this contract shall create any employee or contractual relationship between any subcontractor of CONTRACTOR and the CITY. The CONTRACTOR shall bind every subcontractor and every subcontractor of the subcontractor by their terms of this contract applicable to its work unless specifically noted to the contrary in the subcontract in question approved in writing by the CITY. 19. PROHIBITED INTEREST No official of the CITY who is authorized in such capacity on behalf of the CITY to negotiate, make, accept or approve, or to take part in negotiating, making, accepting or approving any architectural, engineering, inspection, construction, or material supply 10 Rev. 08-08-97 contract or subcontract in connection with the construction of the project, shall become directly or indirectly interested personally in this contract or in any part thereof. No officer, employee, architect, attorney, engineer or inspector of or for the CITY who is authorized in such capacity and on behalf of the CITY to exercise any executive, supervisory or other similar functions in connection with the performance of this contract shall become directly or indirectly interested personally in this contract or any part hereof. 20. VERBAL AGREEMENT OR CONVERSATION No verbal agreement or conversation with any officer, agent or employee or the CITY, either before, during or after the execution of this contract, shall affect or modify any of the terms or obligations herein contained, nor shall such verbal agreement or conversation entitle the CONTRACTOR to any additional payment whatsoever under the terms of this contract. 21. SUCCESSOR OR ASSIGNS Subject to the provision of Paragraph 10, "Hold Harmless Agreement", all terms, conditions, and provisions hereof shall inure to and shall bind each of the parties hereto, and each of their respective heirs, executors, administrators, successors, and assigns. 22. EFFECTIVE DATE This agreement shall be effective on and from the day and year first written above. 23. CONFLICT OF INTEREST The CONTRACTOR shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. 11 Rev. 08-08-97 The CONTRACTOR shall report investments or interests in all four categories. 24. INSURANCE The CONTRACTOR shall obtain and maintain for the duration of the contract and any and all amendments insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the work hereunder by the CONTRACTOR, its agents, representatives, employees or subcontractors. Said insurance shall be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-V" and shall meet the City's policy for insurance as stated in Resolution No. 91-403. A. Coveraqes and Limits. CONTRACTOR shall maintain the types of coverages and minimum limits indicated herein, unless a lower amount is approved by the City Attorney or City Manager: 1. Comprehensive General Liability Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits shall apply separately to the work under this contract or the general aggregate shall be twice the required per occurrence limit. 2. Automobile Liability (if the use of an automobile is involved for CONTRACTORS work for the City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 3. Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the Labor Code of the State of California and 12 Rev. 08-08-97 .I 4 Employer's Liability limits of $1,000,000 per accident for bodily injury. B. Additional Provisions. CONTRACTOR shall ensure that the policies of insurance required under this agreement contain, or are endorsed to contain, the following provisions. 1. The City shall be named as an additional insured on all policies excluding Workers' Compensation. 2. The CONTRACTOR shall furnish certificates of insurance to the City before commencement of work. 3. The CONTRACTOR shall obtain occurrence coverage. ' 4. This insurance shall be in force during the life of the agreement and any extension thereof and shall not be canceled without 30 days prior written notice to the City sent by certified mail. 5. If the CONTRACTOR fails to maintain any of the insurance coverages required herein, then the City will have the option to declare the CONTRACTOR in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order that the required coverages may be maintained. The CONTRACTOR is responsible for any payments made by the City to obtain or maintain such insurance and the City may collect the same from the CONTRACTOR or deduct the amount paid from any sums due the CONTRACTOR under this agreement. Ill Ill Ill Ill 13 Rev. 08-08-97 c - d 25. RESPONSIBLE PARTIES The name of the persons who are authorized to give written notices or to receive written notice on behalf of the City and on behalf of the CONTRACTOR in connection with the foregoing are as follows: For City: Title: Associate Planner Name: Barbara Kennedv Address: City of Carlsbad Plannins Department 1635 Faradav Avenue Carlsbad. CA 92008 For Contractor: Title: Senior Proiect Manaser Name: Michael Paae Address: 9903 Businesspark Avenue San Dieso, CA 92131 ArchitectlLicense Number: NIA ArchitectILicense Number: NIA 26. BUSINESS LICENSE CONTRACTOR shall obtain and maintain a City of Carlsbad Business License for the duration of the contract. 27. ENTIRE AGREEMENT This agreement, together with any other written document referred to or contemplated herein, embody the entire agreement and understanding between the parties relating to the subject matter hereof. Neither this agreement nor any provision Ill /I/ 14 Rev. 08-08-97 1 icc hereof may be amended, modified, waived or discharges except by an instrument in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. Executed by CONTRACTOR this .%k/ day of ../%:, , , ,20 2. & (Name of Contractor) c g- 22 -c (sigh here) I z ATTEST: ! By: (sign here) (print namehitle) (Proper notarial acknowledgment of execution by CONTRACTOR must be attached) (Chairman, president or vice-president and secretary, assistant secretary, CFO or assistant treasurer must sign for corporations. Otherwise, the corporation must attach a resolution signing to bind the corporation.) certified by the secretary or assistant secretary under corporate seal empowering the oficer(s) (If signed by an individual partner, the partnership must attach a statement of partnership authorizing the partner to execute this instrument). APPROVED AS TO FORM: RONALD R. BALL, City Attorney By: p&hdhlnn eputy City Attorney 15 Rev. 08-08-97 STATE OF CALIFORNIA COUNTY OF SAN DIEGO On Ausust 22 !2W before me, vhlvit2 a &Inn IYPZ Notary Public, personally appeared Mi%& L. Paae [ ] personally known to me - or W proved to me on the basis of satisfactory evidence to be the person@) whose name(+ - ishe subscribed to the within instrument and acknowledged to me that he/skeCUley - executed the same in K/kefftkeir authorized capacity&@, and that by - hiswr signatureo on the instrument the person@), or J r the entity upon behalf of which the person@ acted. executl __c I WITNESS my hand and official seal. b ed the instrument. i ATTACHMENT 1 CANTARINVHOLLY SPRINGS JOINT EIR EIR 02-02 ATTACHMENT 2 CANTARlNl RANCHIHOLLY SPRINGS SUBDIVISIONS AND RELATED APPLICATIONS ENVIRONMENTAL IMPACT REPORT SCOPE OF WORK EIR 02-02 SCOPE OF CONSULTANT SERVICES The consultant shall prepare an Environmental Impact Report for the Cantarini Ranch and Holly Springs subdivisions and related applications which is acceptable to the City. The EIR shall be prepared pursuant to all applicable'state laws and shall conform to the California Environmental Quality Act (CEQA) and State EIR guidelines. The consultant shall be responsible for the accuracv and completeness of all information contained in the Final Draft EIR. If the Consultant does not wish to accept responsibilitv for the information contained in the technical studies, the Consultant snall provide to the Citv statements sisned bv the appropriate technical consultant acceptins responsibilitv for the accuracv and completeness of anv studiesheports prepared bv that technical consultant. These sisned statements of responsibilitv shall be made a part of the appendices of the EIR. The Consultant shall: 1. Obtain all reference material and conduct all research and field data collection necessary to prepare the EIR. 2. Identify, discuss and develop appropriate mitigation monitoring programs for any impacts which may be associated with the short-term and/or long-term development of the site. 3. Provide five (5) screen check draft documents for city staff review which will be consistent with CEQA and the Carlsbad Environmental Protection Ordinance (Title 19 of the Carlsbad Municipal Code) within six (6) weeks from entering into agreement with the City. 4. Provide five (5) copies of the revised Draft EIR text, including appendices and exhibits, which incorporate staffs written recommendations and revisions to the screen check Draft EIR, in addition to the first draft of a Mitigation Monitoring and Reporting Program and Candidate Findings of Fact within ten (10) weeks from entering into agreement with the City. 5. Provide fifty (50) copies plus one (1) reproducible master of the City-approved Draft EIR with appendices, exhibits, and Mitigation Monitoring and Reporting Program. Twenty-five (25) of those copies shall be in 3-ring, loose-leaf binders, and twenty-five (25) shall be spiral-bound copies. 6. Provide ten (10) copies of the City-approved Draft EIR with appendices. exhibits, and Mitigation Monitoring and Reporting Program on CD's, including one (1) Master CD from which copies can be made. 7. Respond to comments made during the Draft EIR public review period. Consultant shall submit written responses to comments and provide five (5) screen check Final EIR documents which include all comments on the Draft EIR within two (2) weeks after the public review period. In addition five (5) copies of the Candidate Findings of Fact incorporating staff's comments shall be submitted. 8. Provide five (5) copies of the Final Draft EIR, including appendices and exhibits, which shall incorporate staffs written recommendations and revisions to the screen check Final EIR, a Mitigation Monitoring and Reporting Program and a separate submittal consisting of the Candidate Findings of Fact within two (2) weeks of receiving the written comments from City Staff on the responses to comments and the Final EIR. 9. Provide fifty (50) copies plus one (1) reproducible master of the City-approved Final EIR with appendices and exhibits. Twenty-five (25) of those copies shall be in Wing, loose-leaf binders, and twenty-five (25) shall be spiral-bound copies. 10. Provide ten (10) copies of the City-approved Final EIR with appendices, exhibits, and Mitigation Monitoring and Reporting Program on CD's, including one (1) Master CD from which copies can be made. 1 1, Attend up to ten (1 0) meetings, including but not limited to: One (1) kick-off meeting with City Staff. One (1) public scoping meeting. Two (2) meetings with staff to discuss issues regarding the preparation of One (1) meeting with staff to review comments on the screen check draft. One (1) meeting with staff to review responses to public comments and Up to three (3) public hearings with presentations as necessary as the screen check draft. the final draft. determined by City staff. 1. In addition, as part of the proposal, the consultant should provide a detailed Work Program designed to comprehensively address and analyze the scope of issues identified and described below: -2- INTRODUCTION AND EXECUTIVE SUMMARY The introductory chapter and executive summary is a required section under CEQA. This section should provide sufficient detail to evaluate and review the environmental impacts of the project, but not excessive detail. It may be used as a “stand alone” document. - Tasks: 1. The consultant shall prepare an introductory chapter and executive summary pursuant to all applicable CEQA requirements. This section should identify the project location and boundaries on detailed regional maps. It should include a general description of the project’s technical, economic, and environmental characteristics. It should include a statement briefly describing the intended uses of the EIR. It should also list the agencies which are expected to use the EIR in their decision-making and the approvals for which the EIR will be used. This section must itemize and discuss briefly each significant effect of the project, as well as proposed mitigation measures required and alternatives which would reduce or avoid that impact. It should identify areas of controversy and issues raised by agencies or the public. Issues which would remain to be resolved should be called out, including the choices among alternatives and whether or how to mitigate the significant impacts. The EIR shall comprehensively address and analyze the scope of issues identified and described below: AGRICULTURAL RESOURCES Proiect Backaround About a third of the combined project area is being used for on-going agricultural activities. Agricultural uses were established on the site between 1928 and 1960. Approximately 70 acres of farmland will be impacted due to the proposed development. If the HMP is adopted, the project will be required to pay an agricultural mitigation fee to off-set the impacts. Although none of the property is listed as “prime” agricultural land, the southwest portion of the site is designated as “S” Farmland of Statewide Importance and the southeast portion is designated as “L” Farmland of Local Importance according to the San Diego County Important Farmlands Map, California Department of Conservation, 1992. Further analysis is necessary to determine if that loss is significant. - Tasks: 1. The consultants shall describe the project‘s agricultural setting and analyze the agricultural quality of the site and the impact of the project on state and local -3- agricultural resources. This shall include an analysis of type, amount, location, and economic value of the farmland which will be converted to non-farming uses, It shall also identify any impacts conflicts with thresholds for farmland conversion established by the State Department of Conservation. 2. The consultant shall identify the criteria used to determine significance; identify any significant and less than significant and/or direct and indirect impacts resulting from the project: recommend appropriate mitigation measures as may be required; and, identify any impacts remaining after implementation of the recommended mitigation measures. AIR QUALITY Proiect Backaround The project contains a pedestrian and bicycle trail system which will connect to the citywide trail system. While this system will provide for these alternative forms of transportation to the automobile it is not anticipated that it will result in a significant reduction in average daily vehicle trips. Mass transit will be limited to bus routes determined to be feasible by the North County Transit District (NCTD). Although the project has been designed to encourage pedestrian traffic to the greatest extent possible and to accommodate public transit adjacent to the multi-family housing project, the development of the proposed project will result in an incremental increase in local and regional air pollution. Grading for the project may also contribute significantly to the generation of fugitive dust. The San Diego Air Basin is classified as a “severe” non-attainment area for both federal and state standards for ozone (smog). The San Diego Air Basin also exceeds the state standard for airborne particulate matter. Impacts from the project may include construction emissions, equipment exhaust, fugitive dust, and vehicle emissions. The project’s impact may be significant as the region presently does not meet air quality standards. Additional mitigation measures may be necessary such as providing for public transit in the project design and development of the trail system to serve both recreational and non-motorized transportation purposes. 1. The consultant shall discuss the project setting, including a review of the regional meteorology. The consultant shall review and address both short-term and long- term air quality impacts of the project. Recommended analysis to determine emissions resulting from the project may include: A. Provision of a summary of required emissions data; -4- 2. 3. B. Calculations of air quality impacts and emissions during construction and operation of the project; and, C. Modeling of air quality impacts, including modeling of ambient air quality. Air quality impacts shall be analyzed in regard to the following: A. Project emissions from vehicular and stationary sources B. Grading/Blasting and Construction C. Compliance with federal and state standards as well as regional air quality attainment plans. The consultant shall identify the criteria used to determine significance; identify any significant and less than significant, direct and indirect, impacts resulting from the project; recommend appropriate mitigation measures as may be required; and, identify any impacts remaining after implementation of the recommended mitigation measures. ARCHAEOLOGICAL AND PALEONTOLOGICAL RESOURCES The Cantarini Ranch project area was surveyed for cultural resources in 1998 which resulted in the identification of seven cultural resource locations. A subsequent Significance Evaluation was prepared and determined that none of the sites were considered unique under CEQA guidelines, since the sites were found to have undergone dramatic transformation and did not contain the quantity, quality, or variety of artifacts necessary to address important research questions. The report concluded that no additional testing, preservation, or monitoring during construction would be necessary. The Holly Springs area was also surveyed for cultural resources in 1999. No cultural resource sites were identified, nor were there any previously recorded cultural resource sites identified through research of archives and documents. The subject sites are located in an area identified by the General Plan as an area which could contain potentially significant fossil areas. Some areas of the project site consist of soil formations (Pleistocene-aged Terrace Deposits and soils of the Santiago and Lusardi Formations) which have a high potential to contain fossils. Mass grading required for development of the proposed project may result in potentially significant impacts to paleontological resources. These impacts may be mitigated to below a level of significance by incorporation of a monitoring program and collection of fossils, if any are identified during cutting. -5- Tasks: 1, The consultant shall demonstrate that he meets the minimum qualifications for Cultural Resource Professionals required by the "City of Carlsbad Cultural Resource Guidelines" dated December 1990. 2. The consultant shall perform a third party review of the cultural resource reports and incorporate the findings of the review into the text of the EIR. 3. The consultant shall evaluate the site with respect to soil types known to contain possible paleontological resources. These areas shall be surveyed and mitigated if found significant. The City has a standard two phased program which is required to be undertaken to avoid possible significant impacts on paleontological resources. 4. The consultant shall identify the criteria used to determine significance; identify any significant and less than significant, direct and indirect, impacts resulting from the project; recommend appropriate mitigation measures as may be required; and, identify any impacts remaining after implementation of the recommended mitigation measures. BIOLOGICAL RESOURCES Proiect DescriDtion Impacts to biological resources are expected to occur as a result of the proposed project. Portions of the site have been previously graded to accommodate the agricultural uses. Native vegetation exists on the majority of the Holly Springs site and primarily on the west half of the Cantarini property. Recon has prepared Biological Resources Reports and Impact Analysis for both the Cantarini and Holly Springs sites. These studies shall be utilized in the preparation of this section of the EIR. Much of'the project site will be preserved in open space through the City's draft Habitat Management Plan (HMP), adopted by the City Council. Although the HMP has not yet been adopted by outside agencies, the mitigation measures contained in the draft HMP will be applicable to these projects. 1. The consultant shall describe the biological setting and shall perform a third- party review of the Biological Resources Report and Impact Analysis, and Wetlands Delineation Reports. The consultant shall evaluate the methodologies and conclusions contained in the reports for legal and scientific adequacy and accuracy to ensure that the impact and mitigation analyses are of a scale and level of effort appropriate to the requirements of the project. The consultant shall -6- 2. 3. 4. 5. 6. 7. identify any flaws in the methodologies and/or conclusions and, if no flaws are found, shall incorporate the findings of the review into the text of ttle EIR. The Consultant shall evaluate the proposed draft HMP “hardline” revisions to determine if “equal to or better“ habitat conservation will be achieved. Light and glare impacts on the preserve areas shall be analyzed, Project impacts to wetlands areas and feasibility of the proposed enhancements to the Cantarini Ranch pond area shall be evaluated. The consultant shall identify any additional impacts to open space areas resulting from road easements to service utility or drainage areas. The consultant shall identify any impacts to open space resulting from the proposed trail system and potential users including, but not limited to pedestrians, cyclists, and equestrians. The consultant shall identify the criteria used to determine significance; identify any significant and less than significant, direct and indirect, impacts resulting from the project; recommend appropriate mitigation measures as may be required; and, identify any impacts remaining after implementation of the recommended mitigation measures. GEOLOGYlSOlLS Project Background The subject property consists of ridges and steeply sloping hillside and valley terrain to gently sloping low, broad hills and shallow valleys in the central and southern portions of the site. Surface rock outcrops are common within higher elevations of the property. Elevations range from a high of approximately 420~ feet mean sea level (msl) in the corner of the site to a low of 70+ feet (msl) along the extreme southwestern boundary. Natural drainage is accomplished through a network of small drainages and canyon areas, while the site ultimately drains in a southwesterly direction to an east-west trending canyon (south of the site). A number of natural seepages or springs are located in the eastern portions of the Cantarini and Holly Springs properties. These seepage areas feed the pond in the Cantarini property and the small pond in the Holly Springs property. As determined by the geotechnical reports prepared for the subject properties, the geologic units present on the sites consist of undocumented fill soils, Topsoil, Alluvium and Colluvium, Terrace Deposits, Santiago Formation, Point Loma Formation, Lusardi Formation, and Cretaceous Granitic Rock. -7- A Phase I Environmental Site Assessment was prepared for the Holly Springs property and Phase I and II Environmental Site Assessments were prepared for the Cantarini property. These studies provide information relating to soils, groundwater, and the presence of hazardous materials on the site. Tasks: 1, 2. 3. 4. 5. The consultant shall describe the geological setting, including existing soil and geologic conditions. The consultant shall perform a third-party review of the Geotechnical Reports and the Phase I and Phase II Environmental Site Assessments prepared for the project sites. The consultant shall evaluate the analysis and conclusions contained in the reports and site assessments and evaluate the adequacy of the impact analysis, particularly with regard to unstable soils, remedial earthwork, landslides, rocky soils, fault rupture, seismic ground shaking, subsidence, settlement, surcharging, liquefaction, proposed slope stability, and groundwater impacts. The consultant shall identify any flaws/inadequacies in the analyses and conclusions and, if no flaws/inadequacies are found, shall incorporate the findings of the reports/assessments into the text of the EIR. The consultant shall also evaluate the applicability and limit of ripping andlor blasting and the additional environmental impacts such operations would have particularly on nearby developed properties. The consultant shall also evaluate the potential for over-excavation, removal, recompaction, or export of unsuitable soils relative to creating additional impacts on habitat preservation areas. An analysis of groundwater and the potential for groundwater impacts to the proposed project, roads, and structures will be required. The consultant shall identify the criteria used to determine significance; identify any significant and less than significant, direct and indirect, impacts resulting from the project; recommend appropriate mitigation measures as may be required; and, identify any impacts remaining after implementation of the recommended mitigation measures. -8- HAZARDS Proiect Backpround The project site and vicinity has the potential to be impacted by natural hazards such as floodplains and high fire hazard areas. These potential hazards as they relate to the project require analysis to determine if project approval would put persons and properly at an unacceptable risk. Tasks: 1. 2. 3. The consultant shall evaluate all available floodplain mapping and source documents to determine the boundaries of the floodplain as they,apply to the project site. Grade alterations proposed by the development shall be reviewed to determine their impact on the floodplain. The consultant shall also review the Crty of Carlsbad Floodplain Regulations to determine if the project is in compliance with the requirements contained within the ordinance. The consultant shall identify the areas of the project site which are considered to be high fire hazard areas. The City’s Fire Marshal shall be consulted as to the acceptability of proposed development sites adjacent to high fire hazard areas as well as possible mitigation measures needed to reach an acceptable level of safety, especially with regard to response time requirements as identified by the City’s Growth Management Plan. The consultant shall identify the criteria used to determine significance; identify any significant and less than significant, direct and indirect, impacts resulting from the project; recommend appropriate mitigation measures as may be required; and, identify any impacts remaining after implementation of the recommended mitigation measures. LAND USE COMPATIBILITY Proiect Backaround The project includes a number of discretionary permits including a General Plan Amendment, Zone Change, Local Facilities Management Plan Amendment for Zone 15, Tentative Map, Site Development Plan, Hillside Development Permit, and Special Use Permit. The area is surrounded primarily by undeveloped land although several properlies have project applications on file that are being reviewed. The City Council’s adoption of the Draft Habitat Management Plan (HMP) for the properly has established the areas to be preserved and those areas which may be developed. The HMP provides for amending the General Plan to designate the preserve areas as open space and changing land use designations on the areas to be developed. The General Plan Amendment will also provide for a transfer of the allowed project density to the multi- -9- family site resulting in a higher-density land use designation than currently exists on the site. The precise location of the open space on the existing General Plan Land Use Map needs to be analyzed and may be slightly altered in some locations to be in compliance with the preserve boundaries. The City's General Plan contains a process and required findings to adjust the boundaries of General Plan designated Open Space. Tasks: - 1. 2. 3. 4. 5. 6. The consultant shall describe the'environmental setting of the project. This will include a discussion of any inconsistencies between the proposed project and the City's adopted General Plan and zoning, and any applicable regional plans. The consultant shall examine the existing physical conditions as well as the potential future conditions. The consultant shall perform a detailed project review to confirm the project's compliance with City ordinances and policies. The ordinances and policies shall include: 1) the City of Carlsbad General Plan, 2). the Draft Habitat Management Plan, 3) the Carlsbad Zoning Ordinance (Title 21) including the Hillside Development Regulations, Floodplain Regulations, and Growth Management Chapter, 4) McClellan Palomar Airport Comprehensive Land Use Plan, 5) Scenic Corridor Guidelines, 6) Landscape Manual, 7) Open Space and Conservation Resource Management Plan, 8) El Camino Real Corridor Development Standards, and 9) Subdivision Regulations (Title 20). The consultant shall analyze the land use compatibility between the proposed multi-family development and surrounding existing and proposed development. The consultant shall analyze the impacts of the proposed General Plan Amendment and related applications on the subject site. The consultant shall analyze the project's compatibility with Palomar Airport in terms of proposed land uses, noise and height restrictions. The consultant shall identify the criteria used to determine significance; identify any significant and less than significant, direct and indirect, impacts resulting from the project; recommend appropriate mitigation measures as may be required; and, identify any impacts remaining after implementation of the recommended mitigation measures. NOISE Proiect Backaround Transportation noise impacts from the College Boulevard would be the primary noise source in the future. Impacts associated with construction of the project will also -10- introduce additional noise into the area. Increases in traffic volumes in the area will add incremental noise. Tasks: 1. The consultant shall perform a third party review of the noise report and incorporate the findings of the review into the text of the EIR. 2. Recommendations for mitigation measures or requirements for additional studies shall be presented as necessaty in the EIR. 3. The McClellan-Palomar Airport Land Use Plan shall also be reviewed to determine whether the identified noise levels and proposed land uses will be compatible and what additional requirements of the airport plan shall be imposed in the project. 4. The consultant shall identify the criteria used to determine significance; identify any significant and less than significant, direct and indirect, impact’s resulting from the project; recommend appropriate mitigation measures as may be required; and, identify any impacts remaining after implementation of the recommended mitigation measures. POPULATIOWHOUSING Proiect Backaround The proposal will not cumulatively exceed official regional or local population projections in that the Zone 15 LFMP estimated approximately 675 dwelling units for the project area based on a density of 2.88 units per net developable acre within the Sunny Creek Specific Plan area and 3.2 units per net developable acre within the remaining project area. A total of 228 dwelling units are proposed. Of these, 105 will be market-rate single-family estate type homes within Cantarini Ranch, 43 homes within Holly Springs are proposed as custom home lots, and the remaining 80 units will be within the proposed apartment project. This multi-family housing site will be used to satisfy the 15% inclusionary (affordable) housing requirements for the Cantarini Ranch and Holly Springs projects. The project could induce growth since the project will bring roads and utilities into a relatively undeveloped area and will provide utilities and access to adjacent undeveloped properties. Tasks: 1. The consultant shall make a comparison to the General Plan and Zone 15 Dwelling Unit allowances for the proposed project. -1 1- 2. The consultant shall analyze the proposal to determine if it will induce substantial growth in the area either directly or indirectly. 3. The consultant shall identify the criteria used to determine significance; identify any significant and less than significant, direct and indirect, impacts resulting from the project; recommend appropriate mitigation measures a: may be required; and, identify any impacts remaining after implementation of the recommended mitigation measures. PUBLIC SERVICES AND UTILITIES Proiect Background The proposed project includes the preparation of an amendment to the Local Facilities Management Plan for Zone 15. The proposed General -Plan Amendment would revise the land uses for the property, thereby creating the requirement to amend the existing Zone 15 LFMP and determine if the demand on public services and facilities will be significant. Tasks: 1. 2. 3. 4. The consultant shall describe the project setting and shall determine the demands of the entire project for the following: a) water; b) reclaimed water; c) sewer treatment capacity; d) gas and electric services; e) schools; f) police services; and g) fire protection. Review and comment on the adequacy of the proposed potable water system layout for Cantarini and Holly Springs as prepared by Dexter Wilson Engineering, Inc. dated July 31,2001. Review and comment on the hydraulic model of the potable water system to verify the proposed transmission and distribution lines are adequate to serve the potable water, irrigation and fire protections needs for this project and other project that will be served by these improvements. Verify there is adequate water storage to serve this project. Include all mitigation measures required to serve the project are included in the EIR. The infrastructure layout will also be included as part of the LFMP amendment for this zone. Review and comment on the sewer study of the proposed project identifying peak sewer flows of this project and future areas that will be served of the gravity sewer lines installed by this project. Ensure the measures required to serve the project are included in the EIR. The infrastructure layout will also be included as part of the LFMP amendment for this zone. -12- 5. Review and comment on the recycled water study detailing the demand (in gpm and MGD) required by this project and adjacent areas that wili be served by these improvements. Ensure the measures required to serve the project are included in the EIR. The infrastructure layout will also be included as part of the LFMP amendment for this zone. 6. The emergency response plans of the City of Carlsbad shall be analyzed in conjunction with the proposed project to determine if the project will interfere with existing plans. 7. The consultant shall identify the criteria used to determine significance; identify any significant and less than significant, direct and indirect, impacts resulting from the project; recommend appropriate mitigation measures as may be required; and, identify any impacts remaining after implementation of the recommended mitigation measures. TRANSPORTATlONlClRCULATlON Proiect Backwound The change in land uses proposed by this project will alter the densities in various areas and have corresponding changes in the amount of traffic generated. The consultant shall perform a third party review of the Cantarini Property Traffic Analysis, dated June 28, 2001 and the Hol/y Springs Property Traffic Analysis, dated November 13, 2000 (Reports, hereinafter). The environmental analysis for that portion of College Boulevard that will serve Cantarini and Holly Springs is covered by the EIR prepared for the Calavera Hills Master Plan Amendment (EIR 98-02). - Tasks: 1. 2. 3. 4. 5. Review the traffic report prepared as part of EIR 98-02 and verify that the land- use/density assumptions for Cantarini and Holly Springs areas are not exceeded. Review the Reports to ensure that all requirements of the City of Carlsbad’s Growth Management Program are satisfied. Ensure the study limits of the Reports extend to those road segments and intersections where 20% or more of project-generated traffic is expected impact. Ensure that the Reports identify the level-of-service (LOS) for the road segments and intersections for current, near-term and build-out scenarios are identified as it relates to the proposed project. Identify locations of signalized intersections. -13- 6. 7. 8. 9. 10. 11: 12. 13. 14. 15. Review the Repofls for conformance against SANTECATE Guidelines for Traffic Impact Studies in the San Diego Region. Review the Reports against the assumptions made within the City’s latest build- out traffic model. Review the Tentative Map exhibits for both Cantarini and Holly Springs to verify that public roads meet the City of Carlsbad’s Circulation Element requirements. Review the Tentative Map exhibits for both Cantarini and Holly Springs and verify the project is constructing all required infrastructure to ensure that the City Growth Management standards are met. Review the Tentative Map exhibits for both ‘Cantarini and Holly Springs to identify any potential conflicts for intersection sight distance and vehicular decisions associated with the project, using Caltrans standards. Identify if the proposed project offers potential impacts to areas outside the City of Carlsbad, and if the project requires any mitigation measures. Ensure that all required mitigation measures identified in the Repods and the Tentative Maps for Cantarini and Holly Springs are included in the EIR this project. The components of the traffic/circulation analysis should include vehicular traffic, public transportation, bike and pedestrian traffic, and parking. An evaluation of the pedestrian and bicycle circulation system for potential hazards shall also be completed. The consultant’s analysis should make a determination as to the provision of adequate access to adjacent properties in compliance with City of Carlsbad access requirements. The consultant shall identify the criteria used to determine significance; identify any significant and less than significant, direct and indirect, impacts resulting from the project: recommend appropriate mitigation measures as may be required; and, identify any impacts remaining after implementation of the recommended mitigation measures. VISUAL AESTHETICS/GRADING Proiect Background The project site is visible from El Camino Real which is designated as a scenic highway and the site contributes to the “back country vistas” seen along this roadway. The -14- rr ” ..- I potential grading/landform and aesthetic impacts associated with this project include cut and fill slopes in the hillside topography, alteration of the existing topography, and alteration of natural features such as rock outcroppings. An analysis of the potential visual impacts is also needed to insure that the project is consistent with the Sunny Creek Specific Plan intent of maintaining the "ruraliestate character" of the Sunny Creek area. Tasks: 1. 2. 3. 4. 5. 6. The consultant shall describe the existing visual setting of the site including elevations and topography. A total of six visual simulations of the final graded project, taken from two key observation points, shall be prepared and evaluated. The visual simulations should include 1) existing conditions, 2) the proposed graded pads, and 3) the graded pads with the proposed maximum building heights depicted. Areas of particular concern are views from El Camino Real, Views from College Boulevard, and views of areas containing knolls and rock outcroppings. The consultant shall analyze the proposed landform alteration for compliance with the City's Hillside Development Ordinance. The changes to the visual setting shall be analyzed based on conformance with the General Plan, Sunny Creek Specific Plan, and El Camino Real Scenic Corridor policies to determine if the project would result in a significant negative visual impact. An evaluation of the aesthetic impacts associated with the proposed phasing of grading particularly with stockpile and borrow sites shall be completed. The consultant shall identify the criteria used to determine significance; identify any significant and less than significant, direct and indirect, impacts resulting from the project: recommend appropriate mitigation measures as may be required; and, identify any impacts remaining after implementation of the recommended mitigation measures. -15- WATER QUALlTYlHYDROLOGY The proposed projects will incorporate required erosion and sedimentation control devices to mitigate potential water quality and biological impacts from erosion. Increased runoff from newly created impervious surfaces such as paving combined with urban pollutants associated with the proposed development may significantly impact Agua Hedionda Creek and the Agua Hedionda Lagoon. Mitigation measures to reduce these impacts as prescribed by the California Regional Water Quality Control Board (RWQCB), San Diego Region, will be required. Development and implementation of Best Management Practices (BMP) and compliance with National Pollutant Discharge Elimination System (NPDES) permit requirements is required for urban pollutant runoff mitigation. The hydrology studies prepared for the proposed projects shall be utilized in the preparation of this section of the EIR. Tasks: 1. 2. 3. 4. 5. 6. 7. 8. 9. The consultant shall review and identify deficiencies in the Hydrology/ HydraulicdStorm Water Management studies prepared for the project.' The consultant shall identify impacts to groundwater as it relates to the proposed detention basin. Using available data, the consultant shall describe the hydrological setting (existing hydrological conditions) of the site and general drainage characteristics. A discussion of existing water quality, based on available RWQCB data for the project, shall also be included in the EIR. The consultant shall evaluate the proposed drainage systems adequacy in regulating the discharge rates of drainage from the project site. The consultant shall evaluate the degree to which the project will alter existing drainage patterns to determine if a significant impact will be created. The consultant shall address and recommend appropriate mitigation measures to reduce erosion potential onsite. The consultant shall analyze and evaluate the potential impacts to Agua Hedionda Creek and Agua Hedionda Lagoon and ensure that the reports identify all pollutants of concern for this project and the BMP measures required to address them. The consultant shall evaluate the proposed project for National Pollutant Discharge Elimination System permit compliance. The consultant shall ensure that all permanent detention/pollution control basins have all-weather vehicular access roads to ensure maintenance. -16- 10. 11. 12. 13. The consultant shall ensure that annual maintenance of the permanent detention/pollution control basins is included in the EIR. The consultant shall identify maintenance requirements of the structural BMP measures being implemented with this project. The consultant shall evaluate the proposed project for impacts to wetlands. The consultant shall identify the criteria used to determine significance; identify any significant and less than. significant, direct and indirect, impacts resulting from the project; recommend appropriate mitigation measures as may be required; and, identify any impacts remaining after implementation of the recommended mitigation measures. CUMULATIVE IMPACTS The development of the proposed project may lead to several cumulative impacts which need to be addressed. These cumulative impacts may include, but may not be limited to: a) degradation of air quality; b) increased traffic congestion; c) increased requirements for public facilities/utilities; and d) habitat loss. - Task: 1. As required by CEQA, the EIR shall address cumulative impacts for the proposed project. This shall include an identification of past, present, and reasonably anticipated future projects producing related or cumulative impacts, and shall include a summary of the environmental impacts expected to result from those projects. It should contain an analysis of the cumulative impacts of relevant projects and any reasonable options for mitigating or avoiding any significant cumulative impacts of the proposed project. 2. The consultant shall identify the criteria used to determine significance; identify any significant and less than significant, direct and indirect, impacts resulting from the project; recommend appropriate mitigation measures as may be required; and, identify any impacts remaining after implementation of the recommended mitigation measures. GROWTH INDUCEMENT The project site is located adjacent to the proposed extension of College Boulevard. No development other than a few scattered single-family residences currently exists around the immediate perimeter of the site. The proposed development will extend existing utilities and construct a portion of College Boulevard. -17- 1. As required by CEQA, the EIR shall address the impacts of growth inducement created by the proposed project. 2. The consultant shall identify the criteria used to determine significance; identify any significant and less than significant, direct and indirect, impac!s resulting from the project; recommend appropriate mitigation measures as may be required; and, identify any impacts remaining after implementation of the recommended mitigation measures. ALTERNATIVES As required by CEQA, the consultant shall analyze various project alternatives and provide an assessment of the potential impacts associated with each alternative. The consultant shall include in the EIR some discussion .of why each of the selected alternatives was chosen for analysis. The consultant shall provide a listing of the environmental advantages and disadvantages of each alternative. The alternatives shall include the following: 1. Proiect Alternative 1 - “No Proiect” Alternative - This alternative shall analyze the impacts associated with no development on the entire site. 2. Proiect Alternative 2 - “Land Use Alternative” - The consultant shall evaluate a variation of the project which is based on the existing General Plan Land Use Designations and Growth Management dwelling unit projection outlined in the existing Zone 15 LFMP. 3. Proiect Alternative 3 - “Environmentallv SuPeriodReduced Impact Alternative” - This alternative would be based on the results of a biological study to avoid wetland impacts. It should also analyze a project plan which is designed to reduce landform/grading alterations, VisuaVaesthetic impacts, and other impacts which are identified. 4. Proiect Alternative 4- “Alternative Sites Analvsis” - The consultant shall analyze one alternative site for the proposed project. This off-site alternative analysis shall provide a general level review of all of the environmental issues which were evaluated for the proposed project site. The alternative site will be identified in consultation with City staff. CEQA MANDATED SECTIONS The consultant shall include all sections mandated by CEQA in the EIR. -18- FORMAT Attached is a sheet titled "Required Format and Contents of an Environmental Impact Report for the City of Carlsbad" which the EIR document should be prepared in conformance with. Attachment: "Required Format and Contents Of an Environmental Impact Report for the City of Carlsbad. -19- Required format and Contents of an Environmental Impact Report for the City of Carlsbad Table of Contents Summary Significant Effects, Proposed Mitigation and Alternatives Areas of Controversy Issue to Be Resolved Project Location Maps Statement of Objectives Technical, Economic and Environmental Characteristics Intended Uses of the EIR Agencies Expected to Use the EIR List of Permits and Approvals Required Baseline Environmental Conditions Resources Unique to the Region Consistency with Regional Plans Significant Effects Significant Effects Which Cannot Be Avoided or Mitigated Significant Irreversible Changes Growth 1nducing.lmpacts Mitigation Measures Project Description Environmental Setting Consideration and Discussion of Environmental Impacts Measure proposed by the Applicant Measures recommended by the Clty or others Discussion of alternative mitigation measures Alternatives Effects Not Found to be Significant Organizations and Persons Consulted Discussion of Cumulative Impacts For Final EIR: The DElR or a revision of it Comments and Recommendations Received on the DElR Persons, Organizations, and Public Agencies commenting on the DElR Responses to Comments Table 2. Mooney Associates Cost Estimate Citv of Carlsbad ATTACHMENT 3 Cantarhi Ranch and Holly Springs EIR T.sk I .. Project Initiation and Scoping (kick-off mtg in Task 9 below) Senior Principal Senior Project Manager Environmental Planner(Asst. Proj. Mg.) Task 2 - Renew End Complete Tefhnicd Studies 2.1 Air Quality (Report Preparation) 2.2 Archamlogical and Paleontological Resources (Rcport Review) Subconsultant - Investigative Science and Engineering 2.3 Biological Resources (includes Wetland Delineation) Senior Archamlogist Senior Biologist Assdate Biologisf CNDDB Search 2.4 Geology/Soilr (Report Review) 2.5 Noise (Report Review) Subconsulmt - Ninyo & Moore 2.6 Public Services and Utilities (Potable Water Report Review Only)' Subconsulmt - Investigative Science and Engineering 2.7 TransponatiodCirculation (Report Review) Subconsultant - Poumey 2.8 Visual AestheticdGrading (includes Visual Simulations) Subconsultant - Kau. Okirsu &Associates Principal Landscape Architect GIS Coordinator CAD operator 11 2.9 WaIaQuality~ydrology (Technical Smdy Review Only) Subconsultant - Poumey Task 3 - Prepnrnlion of Drnll EIR Sections 3.1 lnvoduction and Executive Summary Senior Project Manager Environmental Planner 3.2 Agricultural Resources Senior Project Manager Environmental Planner 3.3 Air Quality Senior Project Manager Environmental Planner 3.4 Archaeological and Paleontological Resources Senior Archaeologist Environmental Planner 3.5 Biological Resources Senior Biologist Environmental Planner $125 $115 $60 $80 $75 $65 $105 $75 $75 SI I5 $60 $115 $60 $115 $60 $80 $60 $75 $60 4 4 12 I2 40 40 20 21 80 24 8 6 24 2 4 2 4 24 40 s 500.00 $ 4m.w $ 720.00 $1.680.00 16 2.200.00 s 960.00 $ 3,000.00 s 2,600.00 $ 300.00 $ 4.700.00 s 500.00 $ 4.000.00 5 5.000.00 5 2.100.00 S 1575.00 S 6.000.00 $ 6.220.00 $39,155.00 S 2.760.00 $ 480.00 $ 690.00 $ 1,440.00 $ 230.00 $ 240.00 $ 160.00 $ 240.W $ 1,800.00 S 2,400.00 Page 1 Table 2. Mooney Associates Cost Estimate City of Carlrbad Cantmini Ranch and Holly Springs ElR Task Slflff Rate Hours Cmt Task Suhtotsl 3.6 GeologylSoils Senior Roject Manager Environmental Planner 3.7 Hazards Senior Roject Manager Environmental Planner 3.8 Land Use Compatibility Senior Project Manager Environmental Plm~ 3.9 Noire Senior Project Manager Environmental planner 3.10 PopulationRlouring Senior Fmject Manager Environmental Planner 3.1 I Public Services and Utilities Senior Project Manager Envimnmcntal Planner 3.12 TransportuonlCimulation Senior Project Manager Environmental Planner 3.13 Visual AeslhcucdGrading Senior Project Manager Environmental Planner 3.14 WaterQuahtyMydmlogy Senior Project Manager Environmental Planner 3.15 Cumulative Impacts Senior Project Manager Environmental Planner 3.16 Growth Inducement Senior Project Manager Environmental Planner 3.17 Alternatives Senior Project Manager Environmmtal Planner 3.18 Ofher CEQA Mandated Sections Senior Project Manager Environmental Planner Task 4 - Revisions to Drnn EIR Senior Principal Senior Project Manager Environmental Planner Graphic Coordinator Word Rocessor $1 15 $60 $115 $60 $115 $60 $115 $60 SI15 $60 $115 $60 $I I5 $60 $115 $60 $115 $60 $115 $60 $115 560 $115 $60 SI I5 $60 $125 $I 15 $60 $65 $45 2 16 4 12 16 48 2 8 4 8 32 4 4 16 8 24 12 32 40 16 4 8 I2 36 4 12 4 12 36 12 A S 230.00 5 960.00 $ 460.00 $ 720.00 a 1.840.00 s 2.880.00 S 230.00 $ 480.00 s 460.00 5 480.00 $ 460.00 $ 1.920.00 s 460.00 s 960.00 $ 920.00 s l.440.00 S 1.380.00 $ 1.920.00 $ 1.840.00 $ 2.400.00 5 460.00 $ 480.00 $ 1.380.00 $ 2,I60.00 s 460.00 S 720.00 $ 500.00 $ 1.380.00 $ 780.00 $ 2,I60.00 $ 180.00 UgS40.W 55,000.00 Page 2 r-t , I Tabk 2. Mooney Associates Cost Estimate City of Culsbad Cantarini Ranch and Holly Springs EIR Task Staff Rate Hours COS1 Task Subtotal Task 5 -. Response lo Public and Agency CommenLF' 5. I Response to Comments Senior Pnncipal Senior Project Manager Envimnmenlal Planner Graphic Coordinator Word hersor 5.2 Revise Response IO Comments Senior ProJcct Manager Envimnmental Planner Graphic Coordinator Word Rocessor Task 6 -- Preparation of bdidak Findings and "Rp 6. I Repare Candidafc Findings and MMRP Envimnmmtal Planner Senior Project Managa Graphic Coordinator Word Rocessor 6.2 Revise Candidate Findings and MMRP Senior Project Managa Envimnmenlal Planner Task 7 .- Repantion of Find EIR Senior Project Manager Envimnmental Planner Graphic Coordinator Word Rocessor Task 8 - Report Plinling and Assembly Quality ConmliArrcmbly Production ManagerlAssernbly Screen Check Draft EIR Revixd Screen Check Draft EIR Draft EIR + Appedices Draft EIR + Appendices on CD' Screen Check Final EIR Findings of Fact Revised Screen Check Final EIR. Findings, & MMRP Final EIR + Appedices Final EIR + Appendices an CD' Miscellaneous reproduction, fax, postage etc. $125 $115 $60 $65 $45 $115 $60 $65 545 $I I5 $60 $65 545 $115 $60 $115 $60 $65 $45 $105 $75 $45 $45 $75 $45 $20 $95 $95 4 16 24 8 4 4 8 4 2 12 24 8 4 2 4 8 16 4 4 12 I8 rn) 5 5 51 5 5 5 51 $ 500.00 S 1.840.00 16 520.00 $ 1.440.00 $ 180.00 I 460.00 $ 480.00 s 260.00 5 90.00 $ 1.380.00 I 1.440.00 a 520.00 $ 180.00 $ 230.00 $ 240.00 $ 920.00 $ 960.00 16 260.00 $ 180.00 $ I,Z60.00 $ 1,350.00 $ 225.00 $ 225.00 $ 3.825.00 $ 500.00 $ 225.00 $ 100.00 $ 475.00 5 4.845.00 s 500.00 $ 1,200.00 $5,770.00 w.990.00 w20.00 $14.730.00 Page 3 Table 2. Mooney Assoclatter Cost Lrtimate City of Cnrlsbad htarini Ranch and Holly Springs EIR Task staff Rate Hours cart Tsk Subtotal Task 9 -. Meetings (7) and Hearipgs (3) 9.1 Roject Meetings (7) Senior Principal $125 8 s l.ooo.00 Senior Roject Manager $1 15 24 $ 2,7M).00 Environmental Planner $60 32 $ 1.920.00 Technical Subconsultants (2 meetings per sub) $ 2.870.00 9.2 Public Meetings and Hearings (3) Senior Principal $125 12 $ ISW.00 Senior Roject Manager $115 12 $ 1.380.00 $11,430.00 Task 10 .- Roject Mamgcmmt/EdiIiug Senior Principal $125 24 S 3,000.00 Senior Roject Manager $115 56 $ 6,440.00 Envimnmmtal Planner (ASSL Roj. Mp.) 560 48 $ 2,880.00 SI2320.00 TOTAL s134,935.00 ‘Public Services and Utilities: Tasks identified in the RFP as items 3,4,5. & 6 are included as optional tasks in Table 3 below. ’Response to comments includes up to 30 individual comments. Fees quoled do not include responses to comments requiring additional or comments raising legal challenges which require attorney review will be evaluated at the end of the public review period. research. additional lechnical studies, or significant revisions to technical studies. Cosu to respond to an extensive number of comments exhibits. and graphics prepared by the client will be available to us in Adobe Acrobat (.pdn format. Additional expenses will be incurred ’&r cost estimate to provide CD versions of the han and Final EIRE with appendices and exhibits assumes that technical repom. .: if we are required to scan or digitally re-format documents prior to producing the requested CDs. .. Page 4 AGREEMENT BETWEEN CITY AND BENTLEY EQUITY, LLC FOR PAYMENT OF EIR CONSULTANT THIS AGREEMENT is made this 277% day of L@T&dE& 20*, between the CITY OF CARLSBAD, a municipal corporation of the State of California, hereinafter referred to as CITY, and Bentley Equity, LLC hereinafter referred to as "APPLICANT". RECITALS WHEREAS, the APPLICANT has filed with the CITY a request for approval of a proposed project identified as Cantarini RanchlHolly Springs requiring an Environmental Impact Report; and WHEREAS, CITY has determined that its current staff is inadequate in number to process the Environmental Impact Report in a timely and thorough manner; and WHEREAS, APPLICANT in order to ensure the expeditious processing of said Environmental Impact Report desires to pay to CITY the amount necessary to hire a CONSULTANT. NOW, THEREFORE, in consideration of the covenants and conditions, it is agreed as follows: 1. The CITY will engage the firm of Mooney 8, Associates hereinafter referred to as "CONTRACTOR to perform the necessary work in the processing and monitoring of the Environmental Impact Report for that area more particularly depicted upon a site map attached as Attachment "A" and made a part of this agreement. Ill Ill 1 Rev. 07/31/00 2. It is understood that the CONTRACTOR services shall conform to the Proposal attached as Attachment "B" and made a part of this agreement, and may require: a) Field exploration; b) Weekly communication with the City staff; c) Written reports; and d) Such other work necessary to properly evaluate the proposed project as directed by the Planning Director. 3. It is understood that the CITY will direct the CONTRACTOR to complete a draft and final Environmental Impact Report at the earliest feasible time. The CITY will advise the APPLICANT in writing of any impacts which may render the proposed project infeasible within a reasonable time after CITY has received the CONTRACTOR'S conclusions in writing. 4. The APPLICANT shall pay to the CITY the actual cost of the CONTRACTOR 's services. Such cost shall be based on the costs set forth in Attachment "C". The APPLICANT has advanced the sum of One Hundred Thirty-four Thousand Nine Hundred Thirty-five Dollars ($ 134,935.00) as payment on account for the actual cost of the CONTRACTORS services. In the event it appears, as the work progresses, that said sum will not be sufficient to cover the actual cost, the CITY will notify the APPLICANT of the difference between the amount deposited and the new estimated cost. CITY will ensure, to the extent feasible, that no further work will be performed by the CONTRACTOR incurring an obligation beyond the amount advanced without an appropriate amendment to this Agreement. If the actual cost of preparing the report is less than the APPLICANT'S advance, any surplus will be refunded to 2 Rev. 07/31/00 APPLICANT by CITY. 5. It is understood that the CONTRACTOR shall be an independent contractor of the CITY and CITY shall not be liable for any negligent acts or omissions of the CONTRACTOR. The APPLICANT agrees to permit the CONTRACTOR to enter upon his property and to perform all work thereon as the CONTRACTOR deems necessary to complete the Environmental Impact Report. It is agreed that the APPLICANT will not interfere with the CONTRACTOR in the performance of such work or attempt to influence such CONTRACTOR during the course of his investigation and report. 6. It is understood that the CITY will attempt to bring the Environmental Impact Report to Planning Commission and City Council as soon as possible, barring no delays from the APPLICANT. 7. The City shall not be required to defend any third party claims and suits challenging any action taken by the City with regard to any procedure or substantive aspect of the City’s environmental process and approval of development of the property. If the City, in its sole and absolute discretion defends such action or proceeding, the Applicant shall be responsible and reimburse the City for whatever legal fees and costs, in their entirely, may be incurred by the City in defense of such action or proceeding. The City shall have the absolute right to retain such legal counsel as the City deems necessary and appropriate. Applicant shall reimburse the City for any award of court costs or attorney fees made against City in favor of any third party challenging either the sufficiency of a negative declaration or EIR or the validity of the City’s approval of the application. This obligation survives until all legal proceedings have been concluded and continues even if the City’s approv,al is not validated. 3 Rev. 07/31/00 IN WITNESS WHEREOF, the parties hereto have executed this agreement on the day and year first above written. Executed by APPLICANT this day of I 20". APPLICANT: Bentley Equity, LLC a California limited liability company, by its Managing Member, David M. Bentley (Name of Applicant) ! (sign here) (print name herekitle) By: (sign here) (print name herehitle) ATTEST: LORRANE M. WOOD, City Clerk (Proper notarial acknowledgment of execution by Contractor must be attached.) (Chairman, president or vice-president and secretary, assistant secretary, CFO or assistant treasurer must sign for corporations. Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the ofTcer(s) signing to bind the corporation.) (If signed by an individual partner, the partnership must attach a statement of partnership authorizing the partner to execute this instrument). APPROVED AS TO FORM: RONALD R. BALL, City Attorney Bv: ~/ihWA?q eputy City Attorney 4 Rev. 07/31/00 STATE OF CALIFORNIA COUNTY OF SAN DIEGO On ALC os^ '7 9 ,'4a;2 before me, AALr5 F fs4C Hi" Notary Public, personally appeared OAil i 0 M . &F/UTL F 3 [ 1 PdY knewahzme - ork] proved to me on the basis of satisfactory evidence to be the person(@ whose name(*) idax subscribed to the within instrument and acknowledged to me that helskekkej, executed the same in hismsFCtkeir authorized capacity(k), and that by hishedthen signature(8) on the instrument the person@), or the entity upon behalf of which the person(@ acted, executed the instrument. WITNESS my hand and official seal. ..'.. (Signature ofNotary) , -. ATTACHMENT A CANTARINI/HOLLY SPRINGS JOINT EIR ElR.02-02 ATTACHMENT B CANTARlNl RANCHlHOLLY SPRINGS SUBDIVISIONS AND RELATED APPLICATIONS ENVIRONMENTAL IMPACT REPORT SCOPE OF WORK EIR 02-02 SCOPE OF CONSULTANT SERVICES The consultant shall prepare an Environmental Impact Report for the Cantarini Ranch and Holly Springs subdivisions and related applications which is acceptable to the City. The EIR shall be prepared pursuant to all applicable state laws and shall conform to the California Environmental Quality Act (CEQA) and State ElR guidelines. The consultant shall be responsible for the accuracv and completeness of all information contained in the Final Draft EIR. If the Consultant does not wish to accept responsibilitv for the information contained in the technical studies, the Consultant snall provide to the Citv statements sianed bv the appropriate technical consultant acceptinq responsibilitv for the accuracv and completeness of any studieslreports prepared by that technical consultant. These sianed statements of responsibility shall be made a part of the appendices of the EIR. The Consultant shall: 1. 2. 3. 4. 5. Obtain all reference material and conduct all research and field data collection necessary to prepare the EIR. Identify, discuss and develop appropriate mitigation monitoring programs for any impacts which may be associated with the short-term and/or long-term development of the site. Provide five (5) screen check draft documents for city staff review which will be consistent with CEQA and the Carlsbad Environmental Protection Ordinance (Title 19 of the Carlsbad Municipal Code) within six (6) weeks from entering into agreement with the City. Provide five (5) copies of the revised Draft EIR text, including appendices and exhibits, which incorporate staffs written recommendations and revisions to the screen check Draft EIR, in addition to the first draft of a Mitigation Monitoring and Reporting Program and Candidate Findings of Fact within ten (10) weeks from entering into agreement with the City. Provide fifty (50) copies plus one (1) reproducible master of the City-approved Draft EIR with appendices, exhibits, and Mitigation Monitoring and Reporting -1- Program. Twenty-five (25) of those copies shall be in 3-ring, loose-leaf binders, and twenty-five (25) shall be spiral-bound copies. 6. Provide ten (IO) copies of the City-approved Draft EIR with appendices, exhibits, and Mitigation Monitoring and Reporting Program on CD's, including one (1) Master CD from which copies can be made. 7. Respond to comments made during the Draft EIR public review period. Consultant shall submit written responses to comments and provide five (5) screen check Final EIR documents which include all comments on the Draft EIR within two (2) weeks after the public review period. In addition five (5) copies of the Candidate Findings of Fact incorporating staffs comments shall be submitted. 8. Provide five (5) copies of the Final Draft EIR, including appendices and exhibits, which shall incorporate staffs written recommendations and revisions to the screen check Final EIR, a Mitigation Monitoring and Reporting Program and a separate submittal consisting of the Candidate Findings of Fact within two (2) weeks of receiving the written comments from City Staff on the responses to comments and the Final EIR. 9. Provide fifty (50) copies plus one (1) reproducible master of the City-approved Final EIR with appendices and exhibits. Twenty-five (25) of those copies shall be in 3-ring, loose-leaf binders, and twenty-five (25) shall be spiral-bound copies. 10. Provide ten (1 0) copies of the City-approved Final EIR with appendices, exhibits, and Mitigation Monitoring and Reporting Program on CD's, including one (1) Master CD from which copies can be made. 1 1. Attend up to ten (1 0) meetings, including but not limited to: W One (1) kick-off meeting with City Staff. W One (1) public scoping meeting. W Two (2) meetings with staff to discuss issues regarding the preparation of W One (1) meeting with staff to review comments on the screen check draft. W One (1) meeting with staff to review responses to public comments and W Up to three (3) public hearings with presentations as necessary as the screen check draft. the final draft. determined by City staff. 1. In addition, as part of the proposal, the consultant should provide a detailed Work Program designed to comprehensively address and analyze the scope of issues identified and described below: -2- INTRODUCTION AND EXECUTIVE SUMMARY The introductory chapter and executive summary is a required section under CEQA. This section should provide sufficient detail to evaluate and review the environmental impacts of the project, but not excessive detail. It may be used as a “stand alone” document. Tasks: 1. The consultant shall prepare an introductory chapter and executive summary pursuant to all applicable CEQA requirements. This section should identify the project location and boundaries on detailed regional maps. It should include a general description of the project’s technical, economic, and environmental characteristics. It should include a statement briefly describing the intended uses of the EIR. It should also list the agencies which are expected to use the EIR in their decision-making and the approvals for which the EIR will be used. This section must itemize and discuss briefly. each significant effect of the project, as well as proposed mitigation measures required and alternatives which would reduce or avoid that impact. It should identify areas of controversy and issues raised by agencies or the public. Issues which would remain to be resolved should be called out, including the choices among alternatives and whether or how to mitigate the significant impacts. The EIR shall comprehensively address and analyze the scope of issues identified and described below: AGRICULTURAL RESOURCES Proiect Backaround About a third of the combined project area is being used for on-going agricultural activities. Agricultural uses were established on the site between 1928 and 1960. Approximately 70 acres of farmland will be impacted due to the proposed development. If the HMP is adopted, the project will be required to pay an agricultural mitigation fee to off-set the impacts. Although none of the property is listed as “prime” agricultural land, the southwest portion of the site is designated as “S” Farmland of Statewide Importance and the southeast portion is designated as “L” Farmland of Local Importance according to the San Diego County Important Farmlands Map, California Department of Conservation, 1992. Further analysis is necessary to determine if that loss is significant. - Tasks: 1. The consultants shall describe the project’s agricultural setting and analyze the agricultural quality of the site and the impact of the project on state and local -3- agricultural resources. This shall include an analysis of type, amount. location, and economic value of the farmland which will be converted to non-farming uses. It shall also identify any impacts conflicts with thresholds for farmland conversion established by the State Department of Conservation. 2. The consultant shall identify the criteria used to determine significance; identify any significant and less than significant and/or direct and indirect impacts resulting from the project; recommend appropriate mitigation measures as may be required; and, identify any impacts remaining after implementation of the recommended mitigation measures. AIR QUALITY Proiect Backwound The project contains a pedestrian and bicycle trail system which will connect to the citywide trail system. While this system will provide for these alternative forms of transportation to the automobile it is not anticipated that it will result in a significant reduction in average daily vehicle trips. Mass transit will be limited to bus routes determined to be feasible by the North County Transit District (NCTD). Although the project has been designed to encourage pedestrian traffic to the greatest extent possible and to accommodate public transit adjacent to the multi-family housing project, the development of the proposed project will result in an incremental increase in local and regional air pollution. Grading for the project may also contribute significantly to the generation of fugitive dust. The San Diego Air Basin is classified as a ”severe” non-attainment area for both federal and state standards for ozone (smog). The San Diego Air Basin also exceeds the state standard for airborne particulate matter. Impacts from the project may include construction emissions, equipment exhaust, fugitive dust, and vehicle emissions. The project’s impact may be significant as the region presently does not meet air quality standards. Additional mitigation measures may be necessary such as providing for public transit in the project design and development of the trail system to serve both recreational and non-motorized transportation purposes. 1. The consultant shall discuss the project setting, including a review of the regional meteorology. The consultant shall review and address both short-term and long- term air quality impacts of the project. Recommended analysis to determine emissions resulting from the project may include: A. Provision of a summary of required emissions data; -4- 2. 3. 8. Calculations of air quality impacts and emissions during construction and operation of the project; and, C. Modeling of air quality impacts, including modeling of ambient air quality Air quality impacts shall be analyzed in regard to the following: A. Project emissions from vehicular and stationary sources 8. GradinglBlasting and Construction C. Compliance with federal and state standards as well as regional air quality attainment plans. The consultant shall identify the criteria used to determine significance; identify any significant and less than significant, direct and indirect, impacts resulting from the project; recommend appropriate mitigation measures as may be required; and, identify any impacts remaining after implementation of the recommended mitigation measures. ARCHAEOLOGICAL AND PALEONTOLOGICAL RESOURCES The Cantarini Ranch project area was surveyed for cultural resources in 1998 which resulted in the identification of seven cultural resource locations. A subsequent Significance Evaluation was prepared and determined that none of the sites were considered unique under CEQA guidelines, since the sites were found to have undergone dramatic transformation and did not contain the quantity, quality, or variety of artifacts necessary to address important research questions. The report concluded that no additional testing, preservation, or monitoring during construction would be necessary. The Holly Springs area was also surveyed for cultural resources in 1999. No cultural resource sites were identified, nor were there any previously recorded cultural resource sites identified through research of archives and documents. The subject sites are located in an area identified by the General Plan as an area which could contain potentially significant fossil areas. Some areas of the project site consist of soil formations (Pleistocene-aged Terrace Deposits and soils of the Santiago and Lusardi Formations) which have a high potential to contain fossils. Mass grading required for development of the proposed project may result in potentially significant impacts to paleontological resources. These impacts may be mitigated to below a level of significance by incorporation of a monitoring program and collection of fossils, if any are identified during cutting. -5- Tasks: 1, The consultant shall demonstrate that he meets the minimum qualifications for Cultural Resource Professionals required by the "City of Carlsbad Cultural Resource Guidelines" dated December 1990. 2. The consultant shall perform a third party review of the cultural resoE:ce reports and incorporate the findings of the review into the text of the EIR. 3. The consultant shall evaluate the site with respect to soil types known to contain possible paleontological resources. These areas shall be surveyed and mitigated if found significant. The City has a standard two phased program which is required to be undertaken to avoid possible significant impacts on paleontological resources. 4. The consultant shall identify the criteria used to determine significance; identify any significant and less than significant, direct and indirect, impacts resulting from the project; recommend appropriate mitigation measures as may be required; and, identify any impacts remaining after implementation of the recommended mitigation measures. BIOLOGICAL RESOURCES Proiect Description Impacts to biological resources are expected to occur as a result of the proposed project. Portions of the site have been previously graded to accommodate the agricultural uses. Native vegetation exists on the majority of the Holly Springs site and primarily on the west half of the Cantarini property. Recon has prepared Biological Resources Reports and Impact Analysis for both the Cantarini and Holly Springs sites. These studies shall be utilized in the preparation of this section of the EIR. Much of'the project site will be preserved in open space through the City's draft Habitat Management Plan (HMP), adopted by the City Council. Although the HMP has not yet been adopted by outside agencies, the mitigation measures contained in the draft HMP will be applicable to these projects. Tasks: 1. The consultant shall describe the biological setting and shall perform a third- party review of the Biological Resources Repqrt and Impact Analysis, and Wetlands Delineation Reports. The consultant shall evaluate the methodologies and conclusions contained in the reports for legal and scientific adequacy and accuracy to ensure that the impact and mitigation analyses are of a scale and level of effort appropriate to the requirements of the project. The consultant shall -6- 2. 3. 4. 5. 6. 7. identify any flaws in the methodologies and/or conclusions and, if no flaws are found, shall incorporate the findings of the review into the text of the EIR. The Consultant shall evaluate the proposed draft HMP "hardline" revisions to determine if "equal to or better" habitat conservation will be achieved. Light and glare impacts on the preserve areas shall be analyzed. Project impacts to wetlands areas and feasibility of the proposed enhancements to the Cantarini Ranch pond area shall be evaluated. The consultant shall identify any additional impacts to open space areas resulting from road easements to service utility or drainage areas. The consultant shall identify any impacts to open space resulting from the proposed trail system and potential users including, but not limited to pedestrians, cyclists, and equestrians. The consultant shall identify the criteria used to determine significance; identify any significant and less than significant, direct and indirect, impacts resulting from the project; recommend appropriate mitigation measures as may be required; and, identify any impacts remaining after implementation of the recommended mitigation measures. GEOLOGY/SOILS Proiect Backaround The subject property consists of ridges and steeply sloping hillside and valley terrain to gently sloping low, broad hills and shallow valleys in the central and southern portions of the site. Surface rock outcrops are common within higher elevations of the property. Elevations range from a high of approximately 420+ feet mean sea level (msl) in the corner of the site to a low of 70+ feet (msl) along the extreme southwestern boundary. Natural drainage is accomplished through a network of small drainages and canyon areas, while the site ultimately drains in a southwesterly direction to an east-west trending canyon (south of the site). A number of natural seepages or springs are located in the eastern portions of the Cantarini and Holly Springs properties. These seepage areas feed the pond in the Cantarini property and the small pond in the Holly Springs property. As determined by the geotechnical reports prepared for the subject properties, the geologic units present on the.sites consist of undocumented fill soils, Topsoil, Alluvium and Colluvium, Terrace Deposits, Santiago Formation, Point Loma Formation, Lusardi Formation, and Cretaceous Granitic Rock. -1- A Phase I Environmental Site Assessment was prepared for the Holly Springs property and Phase I and II Environmental Site Assessments were prepared for the Cantarini property. These studies provide information relating to soils, groundwater, and the presence of hazardous materials on the site. T_asks: 1. 2. 3. 4. 5. The consultant shall describe the geological setting, including existing soil and geologic conditions. The consultant shall perform a third-party review of the Geotechnical Reports and the Phase I and Phase II Environmental Site Assessments prepared for the project sites. The consultant shall evaluate the analysis and conclusions contained in the reports and site assessments and evaluate the'adequacy of the impact analysis, particularly with regard to unstable soils, remedial earthwork, landslides, rocky soils, fault rupture, seismic ground shaking, subsidence, settlement, surcharging, liquefaction, proposed slope stability, and groundwater impacts. The consultant shall identify any flawslinadequacies in the analyses and conclusions and, if no flaws/inadequacies are found, shall incorporate the findings of the reports/assessments into the text of the EIR. The consultant shall also evaluate the applicability and limit of ripping and/or blasting and the additional environmental impacts such operations would have particularly on nearby developed properties. The consultant shall also evaluate the potential for over-excavation, removal, recompaction, or export of unsuitable soils relative to creating additional impacts on habitat preservation areas. An analysis of groundwater and the potential for groundwater impacts to the proposed project, roads, and structures will be required. The consultant shall identify the criteria used to determine significance; identify any significant and less than significant, direct and indirect, impacts resulting from the project; recommend appropriate mitigation measures as may be required; and, identify any impacts remaining after implementation of the recommended mitigation measures. -8- HAZARDS Proiect Backsround The project site and vicinity has the potential to be impacted by natural hazards .such as floodplains and high fire hazard areas. These potential hazards as they relate to the project require analysis to determine if project approval would put persons and property at an unacceptable risk. Tasks: 1. The consultant shall evaluate all available floodplain mapping and source documents to determine the boundaries of the floodplain as they apply to the project site. Grade alterations proposed by the development shall be reviewed to determine their impact on the floodplain. The consultant shall also review the City of Carlsbad Floodplain Regulations to determine if the project is in compliance with the requirements contained within the ordinance. 2. The consultant shall identify the areas of the project site which are considered to be high fire hazard areas. The City’s Fire Marshal shall be consulted as to the acceptability of proposed development sites adjacent to high fire hazard areas as well as possible mitigation measures needed to reach an acceptable level of safety, especially with regard to response time requirements as identified by the City’s Growth Management Plan. 3. The consultant shall identify the criteria used to determine significance; identify any significant and less than significant, direct and indirect, impacts resulting from the project; recommend appropriate mitigation measures as may be required; and, identify any impacts remaining after implementation of the recommended mitigation measures. LAND USE COMPATIBILITY Proiect Backaround The project includes a number of discretionary permits including a General Plan Amendment, Zone Change, Local Facilities Management Plan Amendment for Zone 15, Tentative Map, Site Development Plan, Hillside Development Permit, and Special Use Permit. The area is surrounded primarily by undeveloped land although several properties have project applications on file that are being reviewed. The City Council’s adoption of the Draft Habitat Management Plan (HMP) for the property has established the areas to be preserved and those areas which may be developed. The HMP provides for amending the General Plan to designate the preserve areas as open space and changing land use designations on the areas to be developed. The General Plan Amendment will also provide for a transfer of the allowed project density to the multi- -9- family site resulting in a higher-density land use designation than currently exists on the site. The precise location of the open space on the existing General Plan Land Use Map needs to be analyzed and may be slightly altered in some locations to be in compliance with the preserve boundaries. The City's General Plan contains a process and required findings to adjust the boundaries of General Plan designated Open Space. Tasks: 1, The consultant shall describe the environmental setting of the project. This will include a discussion of any inconsistencies between the proposed project and the City's adopted General Plan and zoning, and any applicable regional plans. The consultant shall examine the existing physical conditions as well as the potential future conditions. 2. The consultant shall perform a detailed project review to confirm the project's compliance with City ordinances and policies. The ordinances and policies shall include: 1) the City of Carlsbad General Plan, 2) the Draft Habitat Management Plan, 3) the Carlsbad Zoning Ordinance (Title 21) including the Hillside Development Regulations, Floodplain Regulations, and Growth Management Chapter, 4) McClellan Palomar Airport Comprehensive Land Use Plan, 5) Scenic Corridor Guidelines, 6) Landscape Manual, 7) Open Space and Conservation Resource Management Plan, 8) El Camino Real Corridor Development Standards, and 9) Subdivision Regulations (Title 20). 3. The consultant shall analyze the land use compatibility between the proposed multi-family development and surrounding existing and proposed development. 4. The consultant shall analyze the impacts of the proposed General Plan Amendment and related applications on the subject site. 5. The consultant shall analyze the project's compatibility with Palomar Airport in terms of proposed land uses, noise and height restrictions. 6. The consultant shall identify the criteria used to determine significance; identify any significant and less than significant, direct and indirect, impacts resulting from the project; recommend appropriate mitigation measures as may be required; and, identify any impacts remaining after implementation of the recommended mitigation measures. NOISE Proiect Background Transportation noise impacts from the College Boulevard would be the primary noise source in the future. Impacts associated with construction of the project will also . -1 0- introduce additional noise into the area. Increases in traffic volumes in the area will add incremental noise. - Tasks: 1. The consultant shall perform a third party review of the noise report and incorporate the findings of the review into the text of the EIR. 2. Recommendations for mitigation measures or requirements for additional studies shall be presented as necessary in the EIR. 3. The McClellan-Palomar Airport Land Use Plan shall also be reviewed to determine whether the identified noise levels and proposed land uses will be compatible and what additional requirements of the airport plan shall be imposed in the project. 4. The consultant shall identify the criteria used to determine significance; identify any significant and less than significant, direct and indirect, impacts resulting from the project; recommend appropriate mitigation measures as may be required; and, identify any impacts remaining after implementation of the recommended mitigation measures. POPULATlONlHOUSlNG Proiect Backaround The proposal will not cumulatively exceed official regional or local population projections in that the Zone 15 LFMP estimated approximately 675 dwelling units for the project area based on a density of 2.88 units per net developable acre within the Sunny Creek Specific Plan area and 3.2 units per net developable acre within the remaining project area. A total of 228 dwelling units are proposed. Of these, 105 will be market-rate single-family estate type homes within Cantarini Ranch, 43 homes within Holly Springs are proposed as custom home lots, and the remaining 80 units will be within the proposed apartment project. This multi-family housing site will be used to satisfy the 15% inclusionary (affordable) housing requirements for the Cantarini Ranch and Holly Springs projects. The project could induce growth since the project will bring roads and utilities into a relatively undeveloped area and will provide utilities and access to adjacent undeveloped properties. Tasks: 1. The consultant shall make a comparison to the General Plan and Zone 15 Dwelling Unit allowances for the proposed project. -11- 2. The consultant shall analyze the proposal to determine if it will induce substantial growth in the area either directly or indirectly. 3. The consultant shall identify the criteria used to determine significance; identify any significant and less than significant, direct and indirect, impacts resulting from the project; recommend appropriate mitigation measures as may be required; and, identify any impacts remaining after implementation of the recommended mitigation measures. PUBLIC SERVICES AND UTILITIES Proiect Backaround The proposed project includes the preparation of an amendment to the Local Facilities Management Plan for Zone 15. The proposed General -Plan Amendment would revise the land uses for the property, thereby creating the requirement to amend the existing Zone 15 LFMP and determine if the demand on public services and facilities will be significant. Tasks: 1. 2. 3. 4. The consultant shall describe the project setting and shall determine the demands of the entire project for the following: a) water; b) reclaimed water; c) sewer treatment capacity; d) gas and electric services; e) schools; f) police services; and g) fire protection. Review and comment on the adequacy of the proposed potable water system layout for Cantarini and Holly Springs as prepared by Dexter Wilson Engineering, Inc. dated July 31, 2001. Review and comment on the hydraulic model of the potable water system to verify the proposed transmission and distribution lines are adequate to serve the potable water, irrigation and fire protections needs for this project and other project that will be served by these improvements. Verify there is adequate water storage to serve this project. Include all mitigation measures required to serve the project are included in the EIR. The infrastructure layout will also be included as part of the LFMP amendment for this zone. Review and comment on the sewer study of the proposed project identifying peak sewer flows of this project and future areas that will be served of the gravity sewer lines installed by this project. Ensure the measures required to serve the project are included in the EIR. The infrastructure layout will also be included as part of the LFMP amendment for this zone. -12- 5. Review and comment on the recycled water study detailing the demand (in gprn and MGD) required by this project and adjacent areas that will be served by these improvements. Ensure the measures required to serve the project are included in the EIR. The infrastructure layout will also be included as part of the LFMP amendment for this zone. 6. The emergency response plans of the City of Carlsbad shall be analyzed in conjunction with the proposed project to determine if the project will interfere with existing plans. 7. The consultant shall identify the criteria used to determine significance; identify any significant and less than significant, direct and indirect, impacts resulting from the project; recommend appropriate mitigation measures as may be required; and, identify any impacts remaining after implementation of the recommended mitigation measures. TRANSPORTATlON/ClRCULATlON Proiect Backaround The change in land uses proposed by this project will alter the densities in various areas and have corresponding changes in the amount of traffic generated. The consultant shall perform a third party review of the Cantarini Property Traffic Analysis, dated June 28, 2001 and the HoUy Springs Property Traffic Analysis, dated November 13, 2000 (Reports, hereinafter). The environmental analysis for that portion of College Boulevard that will serve Cantarini and Holly Springs is covered by the EIR prepared for the Calavera Hills Master Plan Amendment (EIR 98-02). Tasks: 1. 2. 3. 4. 5. Review the traffic report prepared as part of EIR 98-02 and verify that the land- use/density assumptions for Cantarini and Holly Springs areas are not exceeded. Review the Reports to ensure that all requirements of the City of Carlsbad’s Growth Management Program are satisfied. Ensure the study limits of the Reports extend to those road segments and intersections where 20% or more of project-generated traffic is expected impact. Ensure that the Reports identify the level-of-service (LOS) for the road segments and intersections for current, near-term and build-out scenarios are identified as it relates to the proposed project. Identify locations of signalized intersections. -13- 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. Review the Reports for conformance against SANTECllTE Guidelines for Traffic Impact Studies in the San Diego Region. Review the Reports against the assumptions made within the City’s latest build- out traffic model. Review the Tentative Map exhibits for both Cantarini and Holly Springs to verify that public roads meet the City of Carlsbads Circulation Element requirements. Review the Tentative Map exhibits for both Cantarini and Holly Springs and verify the project is constructing all required infrastructure to ensure that the City Growth Management standards are met. Review the Tentative Map exhibits for both Cantarini and Holly Springs to identify any potential conflicts for intersection sight distance and vehicular decisions associated with the project, using Caltrans standards. Identify if the proposed project offers potential impacts to areas outside the City of Carlsbad, and if the project requires any mitigation measures. Ensure that all required mitigation measures identified in the Reports and the Tentative Maps for Cantarini and Holly Springs are included in the EIR this project. The components of the traffic/circulation analysis should include vehicular traffic, public transportation, bike and pedestrian traffic, and parking. An evaluation of the pedestrian and bicycle circulation system for potential hazards shall also be completed. The consultant’s analysis should make a determination as to the provision of adequate access to adjacent properties in compliance with City of Carlsbad access requirements. The consultant shall identify the criteria used to determine significance; identify any significant and less than significant, direct and indirect, impacts resulting from the project; recommend appropriate mitigation measures as may be required; and, identify any impacts remaining after implementation of the recommended mitigation measures. VISUAL AESTHETICS/GRADING Proiect Backaround The project site is visible from El Camino Real which is designated as a scenic highway and the site contributes to the “back country vistas” seen along this roadway. The -14- potential gradingllandform and aesthetic impacts associated with this project include cut and fill slopes in the hillside topography, alteration of the existing topography, and alteration of natural features such as rock outcroppings. An analysis of the potential visual impacts is also needed to insure that the project is consistent with the Sunny Creek Specific Plan intent of maintaining the “rural/estate charactei‘ of the Sunny Creek area. Tasks: 1 2, 3. 4. 5. 6. The consultant shall describe the existing visual setting of the site including elevations and topography. A total of six visual simulations of the final graded project, taken from two key observation points, shall be prepared and evaluated. The visual simulations should include 1) existing conditions, 2) the proposed graded pads, and 3) the graded pads with the proposed maximum building heights depicted. Areas of particular concern are views from El Camino Real, Views from College Boulevard, and views of areas containing knolls and rock outcroppings. The consultant shall analyze the proposed landform alteration for compliance with the City’s Hillside Development Ordinance. The changes to the visual setting shall be analyzed based on conformance with the General Plan, Sunny Creek Specific Plan, and El Camino Real Scenic Corridor policies to determine if the project would result in a significant negative visual impact. An evaluation of the aesthetic impacts associated with the proposed phasing of grading particularly with stockpile and borrow sites shall be completed. The consultant shall identify the criteria used to determine significance; identify any significant and less than significant, direct and indirect, impacts resulting from the project; recommend appropriate mitigation measures as may be required; and, identify any impacts remaining after implementation of the recommended mitigation measures. -15- WATER QUALITY/HYDROLOGY The proposed projects will incorporate required erosion and sedimentation control devices to mitigate potential water quality and biological impacts from erosion. Increased runoff from newly created impervious surfaces such as paving combined with urban pollutants associated with the proposed development may significantly impact Agua Hedionda Creek and the Agua Hedionda Lagoon. Mitigation measures to reduce these impacts as prescribed by the California Regional Water Quality Control Board (RWQCB), San Diego Region, will be required. Development and implementation of Best Management Practices (BMP) and compliance with National Pollutant Discharge Elimination System (NPDES) permit requirements is required for urban pollutant runoff mitigation. The hydrology studies prepared for the proposed projects shall be utilized in the preparation of this section of the EIR. - Tasks: 1. 2. 3. 4. 5. 6. 7. 8. 9. The consultant shall review and identify deficiencies in the Hydrology/ Hydraulics/Stonn Water Management studies prepared for the project. The consultant shall identify impacts to groundwater as it relates to the proposed detention basin. Using available data, the consultant shall describe the hydrological setting (existing hydrological conditions) of the site and general drainage characteristics. A discussion of existing water quality, based on available RWQCB data for the project, shall also be included in the EIR. The consultant shall evaluate the proposed drainage systems adequacy in regulating the discharge rates of drainage from the project site. The consultant shall evaluate the degree to which the project will alter existing drainage patterns to determine if a significant impact will be created. The consultant shall address and recommend appropriate mitigation measures to reduce erosion potential onsite. The consultant shall analyze and evaluate the potential impacts to Agua Hedionda Creek and Agua Hedionda Lagoon and ensure that the reports identify all pollutants of concern for this project and the BMP measures required to address them. The consultant shall evaluate the proposed project for National Pollutant Discharge Elimination System permit compliance. The consultant shall ensure that all permanent detention/pollution control basins have all-weather vehicular access roads to ensure maintenance. -16- 10. The consultant shall ensure that annual maintenance of the permanent detention/pollution control basins is included in the EIR. 11. The consultant shall identify maintenance requirements of the structural BMP measures being implemented with this project. 12. The consultant shall evaluate the proposed project for impacts to wetlznds. 13. The consultant shall identify the criteria used to determine significance; identify any significant and less than significant, direct and indirect, impacts resulting from the project; recommend appropriate mitigation measures as may be required; and, identify any impacts remaining after implementation of the recommended mitigation measures. CUMULATIVE IMPACTS The development of the proposed project may lead to several cumulative impacts which need to be addressed. These cumulative impacts may include, but may not be limited to: a) degradation of air quality; b) increased traffic congestion; c) increased requirements for public facilitieshtilities; and d) habitat loss. Task: 1. As required by CEQA, the EIR shall address cumulative impacts for the proposed project. This shall include an identification of past, present, and reasonably anticipated future projects producing related or cumulative impacts, and shall include a summary of the environmental impacts expected to result from those projects. It should contain an analysis of the cumulative impacts of relevant projects and any reasonable options for mitigating or avoiding any significant cumulative impacts of the proposed project. 2. The consultant shall identify the criteria used to determine significance; identify any significant and less than significant, direct and indirect, impacts resulting from the project; recommend appropriate mitigation measures as may be required; and, identify any impacts remaining after implementation of the recommended mitigation measures. GROWTH INDUCEMENT The project site is located adjacent to the proposed extension of College Boulevard. No development other than a few scattered single-family residences currently exists around the immediate perimeter of the site. The proposed development will extend existing utilities and construct a portion of College Boulevard. -17- - Task: 1. As required by CEQA, the EIR shall address the impacts of growth inducement created by the proposed project. 2. The consultant shall identify the criteria used to determine significance; identify any significant and less than significant, direct and indirect, impacts resulting from the project; recommend appropriate mitigation measures as may be required; and, identify any impacts remaining after implementation of the recommended mitigation measures. ALTERNATIVES As required by CEQA, the consultant shall analyze various project alternatives and provide an assessment of the potential impacts associated with each alternative. The consultant shall include in the EIR some discussion .of why each of the selected alternatives was chosen for analysis. The consultant shall provide a listing of the environmental advantages and disadvantages of each alternative. The alternatives shall include the following: 1. Proiect Alternative 1 - “No Proiect” Alternative - This alternative shall analyze the impacts associated with no development on the entire site. 2. Proiect Alternative 2 - “Land Use Alternative” - The consultant shall evaluate a variation of the project which is based on the existing General Plan Land Use Designations and Growth Management dwelling unit projection outlined in the existing Zone 15 LFMP. 3. Proiect Alternative 3 - “Environmentallv SuperiodReduced Impact Alternative” - This alternative would be based on the results of a biological study to avoid wetland impacts. It should also analyze a project plan which is designed to reduce landfordgrading alterations, VisuaVaesthetic impacts, and other impacts which are identified. 4. Proiect Alternative 4- “Alternative Sites Analvsis” - The consultant shall analyze one alternative site for the proposed project. This off-site alternative analysis shall provide a general level review of all of the environmental issues which were evaluated for the proposed project site. The alternative site will be identified in consultation with City staff. CEQA MANDATED SECTIONS The consultant shall include all sections mandated by CEQA in the EIR. -1 8- FORMAT Attached is a sheet titled “Required Format and Contents of an Environmental Impact Report for the City of Carlsbad” which the EIR document should be prepared in conformance with. Attachment: “Required Format and Contents of an Environmental Impact Report for the City of Carlsbad”. -19- Required format and Contents of an Environmental Impact Report for the City of Carlsbad Table of Contents Summary Significant Effects, Proposed Mitigation and Alternatives Areas of Controversy Issue to Be Resolved Project Location Maps Statement of Objectives Technical, Economic and Environmental Characteristics Intended Uses of the EIR Agencies Expected to Use the EIR List of Permits and Approvals Required Baseline Environmental Conditions Resources Unique to the Region Consistency with Regional Plans Significant Effects Significant Effects Which Cannot Be Avoided or Mitigated Significant Irreversible Changes Growth Inducing Impacts Mitigation Measures Project Description Environmental Setting Consideration and Discussion of Environmental Impacts Measure proposed by the Applicant Measures recornmended by the City or others Discussion of alternative mitigation measures Alternatives Effects Not Found to be Significant Organizations and Persons Consulted Discussion of Cumulative Impacts For Final EIR: The DElR or a revision of it Comments and Recommendations Received on the DElR Persons, Organizations, and Public Agencies commenting on the DElR Responses to Comments Table 2. Mooney Associates Cost Estimate Citv of Carlsbad ATTACHMENT C Cantarhi Ranch and Holly Springs EIR Task StaU Rate Hours cost Task Subtotal Task 1 - Project Initiation and Scoping (kick-ofimtg in Task 9 below) Senior Principal Senior Project Manager Environmental Planner (Arst. Proj. Mgr.) Task 2 -*Review and Complete Technical Studies 2.1 Air Quality (Repon Reparation) 2.2 Archaeological and Paleontological Resources (Report Review) Subconsultant - Investigative Science and Engineering 2.3 Biological Resources (includes Wetland Dclineation) Senior Archaeologist Senior Biologist CNDDB Search Associate Biologist 2.4 Ceology/Soils (Repon Review) 2.5 Noise (Repon Review) Subconsultant - Ninyo & Moore Subconsultant - Investigative Science and Engineering 2.6 Public Services and Utilities (Potable Waler Repon Review Only)' Subconsultant - Poumey 2.7 TransprtatiorJCirculation (Repon Review) Subconsultant - Kau. Okitsu & Associates 2.8 Visual AestheticdGrading (includes Visual Simulations) Principal Landscape Architect GIS Coordinator CAD operator n 2.9 Water Qualitymydrology (Technical Study Review Only) Subconsultant - Poumey Task 3 -- Prepamtion of Dmfl EIR Sections 3.1 Introduction and Executive Summary Senior Project Manager Environmental Planner 3.2 Agricultural Resources Senior Project Manager Environmental Planner 3.3 Air Quality Senior Project Manager Environmental Planner 3.4 Archaeological and Paleontological Resources Senior Archaeologist Environmental Planner 3.5 Biological Resources Senior Biologist Environmental Planner $125 $115 $60 $80 $75 $65 $105 $75 $75 $115 $60 $115 $60 $I 15 $60 $80 $60 $75 $60 4 4 12 12 40 40 20 21 80 24 8 6 24 2 4 2 4 40 24 5oo.on 460.00 720.00 SL.680.00 2.200.00 9M.00 3.wo.00 2,Mx).00 300.00 4.700.00 500.00 4.wo.00 5.wo.00 2,100.00 1,575.00 61)Oo.OO 6.220.00 $39,155.00 2,760.00 480.00 690.00 1.440.00 230.00 240.00 IM.00 240.00 I .8W.00 2.400.00 Page 1 Table 2. Mooney Associates Cost Estimate City of Culsbad Cantarlni Ranch and Holly Springs EIR Task Stnff Rate Hours cost Task Suhtotnl 3.6 GeologylSoilr Senior Roject Manager Environmental Planner 3.7 Hazards Senior Rojecr Manager Envimnmental Planner 3.8 Land Use Compatibility Senior Project Manager Environmental Planner 3.9 Noise Senior Project Manager Environmental Planner 3.10 PopulationMousing Senior Project Manager Environmenlal Planner 3.1 I Fublic Senices and Utilities Senior Project Manager Envimnmental Planner 3.12 Transpmation/Circulation Senior Project Manager Environmental Planner 3.13 Visual AestheticdGrading Senior Project Manager Envimnmental Planner 3.14 WataQualityMydmlogy Senior Rojecr Manager Envimnmental Planner 3.15 Cumulative Impacts Senior Project Manager Envimnmental Planner 3.16 Gmwlh Inducement Senior Roject Manager Environmental Planner 3.17 Alternatives Senior Project Manager Envimnmental Planner 3.18 Other CEQA Mandated Sections Senior Roject Manager Environmental Planner T.sk 4 __ Revisions to Draft EIR Senior Principal Senior Project Manager Environmental Planner Graphic Coordinator Word Rocerror $115 $60 $115 560 $115 $60 $1 15 $60 $115 $60 $115 $60 $I I5 $60 $1 I5 560 $115 $60 $115 $60 $115 $60 $115 $60 $115 560 $125 $115 $60 $65 $45 2 16 4 12 16 48 2 8 4 8 4 32 4 16 8 24 32 12 16 40 4 8 I2 36 4 12 4 36 I2 I2 4 .5 230.00 5 ,960.00 $ 460.00 $ 720.00 16 1.840.00 5 2.880.00 $ 230.00 $ 480.00 $ 460.00 $ 480.00 $ 460.00 $ 1.920.00 $ 460.00 $ 960.00 $ 920.00 a I.44o.W $ 1.380.00 $ 1,920.00 $ 1,840.00 $ 2.m.00 $ 460.00 $ 480.00 $ 1.380.00 $ 2.160.00 $ 460.00 6 720.00 $ 500.00 5 1.380.00 $ 2,160.00 $ 780.00 $ 180.00 $38540.00 ss,ooo.oo Page 2 Table 2. Mooney Assodates Cost Estimate City of Carlsbad Cantarini Ranch and Holly Springs ElR Task Stall Rate Hours cost Task Subtotal Task 5 .. Response to Public and Agency Comment? 5.1 Response IO Comments Senior F’rincipal $125 4 $ 500.00 Senior Fmject Manager $1 15 16 $ 1.860.00 Environmental Planner $60 24 S 1,440.00 Graphic coordinator $65 8 $ 520.00 Word Rocessor 545 4 s 180.00 5.2 Revise Response to Comments Senior Fmject Manager Environmental Planner Graphic Coordinator word Fmccssor. Task 6 -- Preparation of Candidale Findings and MMRP 6. I Prepare Candidate Findings and MMRP Senior Fmject Manager Environmental Planner Graphic Coordinator Word Rocessor 6.2 Revise Candidate Findings and MMRP Senior Fmject Manager Environmental Planner Task 7 ._ Preparation of Find EIR Senior Fmject Manager Environmental Planner Graphic Coordinator Word Processor Tnrk 8 -_ Report Printing and Assembly Quality ContmVAnsembly Fmduction ManagedAssembly Scrren Check Draft EIR Revised Screen Check Draft EIR Draft EIR + Appedices Draft EIR + Appendices on CD’ Screen Check final EIR Findings of Fact Revised Screen Check Final EIR. Findings. & MMRP Final EIR + Appedices Final EIR + Appendices on CD’ Miscellaneous reproduction. far. postage etc. $115 $60 $65 145 5115 $60 $65 $45 $115 $60 $115 $60 565 $45 5 IO5 $15 $45 $45 $75 $45 $20 $95 $95 4 $ 4m.w 8 S 480.00 4 $ 260.00 2s 90.00 55,770.00 12 5 1,380.00 24 $ 1,440.00 8 $ 520.00 4 a 180.00 2s 4s 8$ 16 $ 4% 45 230.00 240.00 53.990.00 920.00 960.00 260.00 180.00 $2320.00 1.2m.00 1.350.00 225.00 225.00 3.825.00 500.00 225.00 I00.W 475.00 4,845.00 500.00 1.2w.00 $14,730.00 Page 3 Table 2. Mooney Associates Cost btimrte City of Carlrbad Cantarini Ranch and Holly Springs EIR Task StnfI Rate Hours cost Task Suhtalnl Task 9 -. Meetings (7) and Hcnrings (3) 9.1 Roject Meetings (7) Senior Principal Senior Fmject Manager Environmental Planner Technical Subconsultants (2 meetings per sub) 9.2 Public Meetings and Hearings (3) Senior Rincipal Senior Project Manager Task 10 --Project MpnngemenllEditing Senior Rincipal Senior Roject Manager Envlmnmcnlal Planner (Arst. Fmj. Mgr.) $125 $115 $60 $125 $115 $125 $115 $60 8 24 32 12 12 24 56 48 $ 1.000.00 5 2.760.00 $ 1,920.00 $ 2.870.00 $ 1.500.00 $ 1.380.00 $ 3.000.00 $ 6,440.00 $ 2.880.00 $11,430.00 $12320.00 TOTAL 5134,935.M) 'Public Services and Utilities: Tasks identified in Ihe RFF' as items 3.4.5. & 6 are included as optional tasks in Table 3 below 'Response to comments includes up to 30 individual comments. Fees quoted do not include responses to comments requiring additional research. additional technical studies. or significant revisions to technical studies. Costs to respond to an extensive number of comments or comments raising legal challenges which requlre attorney review will be evaluated at the end of the public review period. 'Our cost estimate to provide CD versions of the Drafl and Final ElRs with appendices and crhibits assumes that technical repom. exhibits. and graphics prepared by he client will be available to us in Adobe Acrobat (.pdn format. Additional expenses will be incurred if we are required to scan or digitally re-format documents prior to producing he requested CDs. Page 4 CERTIFICATE OF MANAGING MEMBER OF BENTLEY EQUITY, LLC The undersigned hereby certifies that he is the Managing Member of Bentley Equity, LLC, a California Limited Liability Company (CA Secretary of State Number 199922310036), and that he is authorized and directed to execute on behalf of Bentley Equity, LLC any adall documents, including but not limited to, consultant contracts and other agreements for services and payment thereof, escrow instructions, deeds, conveyances, assignments, loan documents, subdivision documents, and development and permit applications; and to do all acts and things which may be deemed necessary or advisable in order to carry out the business of Bentley Equity, LLC. IN WITNESS WHEREOF, this Certificate of Managing Member has been duly executed on this 30ih day of August, 2002. . David M. Bentley, Managing Member DISCLAIMER The information displayed here is current as of Aug 30,2002 and is updated weekly. It is not a complete or certified record of the Limited Partnership or Limited Liability Company. LPILLC BENTLEY EQUITY, LLC Number: 199922310036 I(Date Filed: 8/10/1999 IIStatus: active I Jurisdiction: CALIFORNIA II Pri~ ncipal Address I1 IICARLSBAD, CA 92009 I I! Agent for Service of Process I BOB LADWIG 703 PALOMAR AIRPORT ROAD, STE. 300 CARLSBAD, CA 92009 ~~~ ~ Fees and instmctions for requesting certification of limited partnership andlor limited liability company records are included on the LPILLC Records Order Form. Blank fields indicate the information is not contained in the computer file If the agent for service of process is a corporation, the address of the agent must be requested in writing. Fees and instructions for requesting this information are included on the Corporate Records Order Form. http:/Pltepler.ss.ca.govlcorpdatalShowLpllcAllList?Quer~L~l~~N~~b~~199922310036&p ... 09/03/2002 BENTEQ SECRETARY OF STATE 1, BILL JONES, Secretary of State of the State of California, hereby certify: That the attached transcript of page(s) was prepared by and in this office from the record on file, of which it purports to be a copy, and that it is full, true and correct. IN WITNESS WHEREOF, I execute this c.ertilicate and affix the Creat Seal of the Statc of California this day of AU6 I 1 1999 -. .- - Secretary ol State E IENTEQ 520 577 4E3i W6:L"'Ci; k'3.i.tr 7 .eA- %- State of California Bill Jones Secretary of State - I LIMITED LIABILITY COMPANY AUG 1 0 1999 ARTICLES OF ORGANIZATION 84 IMPORTANT - Read instructions before completing this fonn. A f70.00 filing fee must accompany this form. RU JONES. Secretary01 Shlc U This Space for Filing Use Only I. Nameotlhelimlledliabil~tycompany (e~~~~elUlh(MuOrQI'Um~(ld~~~any."L~.~cyb.'wtheabhmu~loru"LLCor .L.L.C.") Bentley Equity, LLC I. The purpose of the limited liabilii company is lo engage in any lawful act or activity lor which a limited liability company may be organized under me Beverly-l(iUea limned liability company act. 3 Name the agenl lor service 01 process and check the appropriate provision below: Robert Ladwig which is [ 3 an tndividual rending in California. Proceed 10 Item 4. [ ] a corporation which has filed a cenihesfe pursuant to section 1505. Proceed lo Item 5. I If an Inatvldual. California address of the agent for service of process: Address: 703 Palomar Airport Road, Ste. 300 CI h, : Cerlsbad $tale CA Zip Code: 92009 5 The limiled liability company will be managed by: (check one) [ ] onomanager [ ] more than one manager llmlted llabili company membem ; Other matters to be Included In tnis cenficate may be sei fonn on separate attacbed pages and are mado a part of this certificate. i Number of pages attached. it any: Olher mattefs may include the blest dale on which the limited IlablllN commnv is IO dissOlve. Type of business 01 the limited Irabdiiy company Real Estate Development declared that I am the perron who executed this instrumenl. which execution IS my acl and deed ~. Stgnature 01 Organtzer Chervl C. Deardcn Type or Prmt Name of Organizer June 22, 1999 Date -. SEUSTAIE IREV. 1/99) FORM LLCl - FILING FEE S70.00 wov& by sRIF(anl et SINe - LIMITED UABILITY COMPANY - STATEMENT OF INFORMATION A S1O.M) FILING FEE MUST ACCOMPANY THIS FORM. IMPORTANT- Read Instructions On Back Before Completing This Form. r ~~ !. UMlTED LU8lLlTY COMPANY NAME Bentley Equity, LLC THIS SPACE FOR ClLlElG USE ONLY 2. SECRRARV OF STATE FILE NUMBER 1 3. NRISDICMN OF FORMITION ~~ ~ 199922310036 aliEornia .L AOORESS OF PQINCIPAL EZECUTNE OFFCE ClTi AN0 STATE LIP CODE 3561 E. Sunrise Drive, Suite 231 Tucson, AZ 85718 5. ADDRESS IN CALIFORNU OF owcE WHERE RECO~OS ARE MAINTAINED (FOR WMESTIC OmLrl Cm ZIP CODE 4 LIST THE NAME AND COMPLETE ADDRESS OF ANY MANAGER OR MANAGEAS. AND CHIEF WCUTIVE OFFICER. IF ANY, OR IF NONE HAVE 1 BEEN APPOINTED OR ELECTED. PROVIDE THE NAME AND ADDRESS OF WH MEMBER. (CHECK THE APPROPRIATE OSIGNAWN). STTACH ADDITIONAL PAGZS IFNECESSADY. 6 NAW David X. Bentley 1x1 MANAGER 703 Palomar Airpore Road, Suire 300 Cnrlsbad CA 92009 ADDRESS 3561 E. Sunrise Drive, Suite 231 [ I CHIEF UECLmvE OFFICER .. I ADDREs5356! E. Sunrise Drive, Suitc 231 I 1 CNlEF EXECUTIVE OFFICER [ I Robert Ljdvig $4 AN INDIVIDUAL RESIDING w CALIFORNIA. PRGCEED TO ITEM 9. . WMCn IS 9. -ADDRESS OF%€ AGENT FOR SnvlcE OF PROCESS IN CALIFORNU. 1 I A CORWRATIW WHICH HAS %EO A CERTIF~CATE PURSUANT TO SEmoN ,505 PRWEED W ITEM $0. cm ZIP COO€ I 703 Pslomnr Airport Road, Suice 300 Carlsbad c~ 92009 I Rcal Lscace lnvestmrnc $0 DESCRIBE 7VP€ OF OUSINESS OF THE LlMlTED LIABILITY COMPINY. I I I. NUMBER OF PAGES ATIACHED. IF ANI. :?. I DECIARE 7HAT THIS STATEMENT IS TRUE. C3ARECT AND COMPLETE. *7 r,d 724-ij SitnArlilEOP lhMVIIUAbIUI*OW.EDTO YCN OATE David 3. Benrlry r npE om PRWT NV~E mo n ,:E OF PC~SOI( :GN,VG State of California Bill Jones Secretary of State LIMITED LIABILITY COMPANY - STATEMENT OF INFORMATION Filing Fee $20.00 -If Amendment, See InstrucKIom IMPORTANT- Read Inrtructims Before Completing Thls Form 1, LlWlTED LIABILITY COMPANY NAME (Do nol aNCr I ndme 85 W'cr*n"W I EENTLEY EQUITY. LLC 7569 MAGELLAN ST CARLSBAO CA 92008 . ___._ ..3 CHMEE IN'AWOFTHE IN~ORMAnON'CONTAJNEDIN WE LASTSTATEMEPJTC STATE FILE NUM8ER NIA SECRETARY,OF STATE. CHECK THE BOX AND PROCEED TO ITEM 12. ., 199922310036 3. STATE OR PLACE OF ORGAN1 T ON t!A d. PRINCIPAL EXECUTIVE OFFICE mAODR6SS I CITY STATE ZIPCODE 5. CALIFORNIA OFFICE WHERE RECOROS ARE MAINTAINED (FOR DOMESTIC ONLY) mADDnESS CITY STATE CA ZIP CODE * CHECK THE APPROPRIATE PROVISION BELOW AND NAME WE AGENT FOR SERWCE OF PROCESS I 1 AN INDIVIDUAL RESIDING IN CALIFORNLA [ 1 A CORPORATION WHICH HAS FILE0 A CERTIFICATE PURSUANT TO CALIFORNIA CORPORATIONS CODE SECTION 1505. AGENTS NAME: ~ _,.. ~ I 7. MORESS~F THE AGENT FOR SERVICE OF PROCESS IN CALIFORNIA. IF AN INOIVIDUAL I I ADDRESS CIN 8. DESCRl8E WPE OF BUSWESS OF TWE LIMITED LIAEILIN COMPANV. 9. LIST THE NAME AND COMPLETE ADDRESS OF ANY MANAGER OR MANAG!SS, OR K NONE HAVE BEEN APPOINTED OR ELECTED. 2. NAME STATE CA ZIP CODE PROVIDE THE NAME AND ADDRESS OF EACH MEMBER. ATlACH ADDITIOHU PAGES, IF NECESSARY. -. . . "" - - " - " .. __ ADDRESS CITY STATE . . - b. NAME ZIP CODE ADDWSS CITY - ." ... C NAME STATE ZIP CODE AOMCSS I .~. CIN STATC ZIP CODE I 10. CHIEF EXECUTIVE OFFlC€F??~EO]. IF ANY: ~ ADDRESS NAMt CRY 11, NUM~ER OF PAGES ATTACHED. IF ANY: STATC I_ ZIP CODE A 12. THIS STATEMENT IS TRUE, CORRECT, AND COMPLETE. / \ // DUE DATE: 08110/2002 SECISTATE FORM LLC-12Fl (REV. 1OpLOOl 1 er' lgJZ APPROVEDBYSECRETARYOFSTATE BENTEQ REAL ESTATE CONFIDENTIAL FAX TRQNSMITTA DATE: September 3,2002 TO: Ms. Michele Masteraon, Management Analyst CITY OF CARLSBAD VIA Fax: 760402.8559 16 pages, ineludw this cover FROM: David M. Bcntlcy, CClM Managing Pvnner RENTLEY-MONARCH CANTARWI RANCH RE: RENTLEY EQUITY, LLC Miehelc: Pcr nnr discussion, armehed is the opcmting ereemcot for Bentley Equity, LLC. subscqucnt annual fdings all comhtc didy tu Chi company. In addition, tbc Secretary ul You'll find that the original Secretary of State ccrtMente. dated August 11.19!?9. and thc State's wcb site oflers vn immediate verification process. Given thc avallablc information, Including the documents and certification I've provided, I don't duly euthnrixed repmntatlvc. If It would help to have my attorney contuct someone at thc city believe thew can be a lqitirnate challenge made p1 to the validity of the company or my role as IU rttorncy'r office, 1'11 be hppy to initiate that conact. Thank you. T00'd deSST0 Z0/€0/60 ZEB6 LLS 02s r OPERATTNG AGREEMENT FOR BENTLEY EQtJITY, LLC A CALIFORNIA LIMITED LIABILITY COMPANY This Operatiny Agreement (his “Agrmt”) is entered into as of August I I, 1999, by and between the parties listed on the signature pages hereof(collectivcly rcferred to as the ”Munbcrs” or individually as a “Member”), with rcfcracc to the following facts: A. The Members have caused to be filed Articles of Organization (the “Articles“) for Bentley Equity, LE (the “Company”), a limited liability company under the laws of the State of California. with the California Secretary of State. B. The Members dcsire to adopt and approve an operating agnement for .the Company under the Bevcrly-Killea Limited Liability Company Act (the “Act”). NOW, THEREFORE, the Members by this Agreement set forth the operating agreement for the Company upon the terms and subject to the conditions of this Agrcemcnt. r ARTICLE I ORGANUATIONAL MATTERS 1.1 -.- Name. The name of the Company shall bc “Bantlcy Equity, LLC.” Thc Company may conduct business under that name or any other name approved by the Members. 1.2 m. Thc term of the Company commenced as of the date of the filing ofthe Articles and, unless sooner terminated under Scaion 9.1, shall terminate on December 3 1,2029. 1.3 office and m. The Company shall continuously maintain an office and registered agent in the State ofCaliinda as required by the Act. The principal office of the Company shall be at 3561 E. Sunrise Drive, Suite 231, Tucson, Arizona 85718 or such location as the Members may detennine. The registered agcnt shall be as stated in the Artides or as otherwise determined by the Members. 1.4 Business of the ComDaqy. Notwithstanding the purpose ofthe Company which is described in the Articles, the Company shall not engage in any business other than the following without the consent of all ofthe Members: (a) the business ofacquirins developing holding for investment, managing. selling andor exchanging rcal property; and (b) such other activities direly related to the foregoing business as may be necessary or advisable in the reasonable opinion ofthe Members to knher such business. Z00’d d6S I T0 Z0/€0/60 r ARTICLE IK CAPITAL CONTRIBUTIONS r 11.1 7. Each Mcmber shall mRke a cash contribution to the capital ofthe Company in the amount shown opposite the Mrmba’s name on Exhibit A attached hereto. NO Member shall be required to make any additional contributions to the capital of the Company. Additional contributions to the capital of the Company shall be made only with the unanimous consent of the Members. Except as provided in this Agreement, no Member may withdraw his or her capital contribution. .. TT.2 -1tal Ac-. The Cow shall establish an individual capital account (“Capital Account”) for each Member. The Company shall determine and maintain each Capital Account in accordance with Treasury Regulations Seaion 1.7061(b)(2)(iv). Upon a valid transfer of a Member‘s interest in the Company (“Membership Interest”) in accordance with Article V1, such Member’s Capital Account shall cany over to the new owner. 11.3 No. The Company shall not pay any intcrest on capital contributions. 11.4 barn. With the approval of all Members, any Membcr 6om time to time may lend the Company funds on such terms as the Members may approve. ARTICLE 1LI MEMBERS III. 1 p. Additional Members may be admitted with the approval of all Members. Additional Members will participate in “Net Profits”, “Na Losses” (as such terms are defined in Section 5.1)* and distributions of the Company on such terms as are determined by the Membm. Exhibit A shall be amended upon the admission of an additional Member to set forth such Member‘s name and capital contribution. .. .. 111.2 7. Except as specified in this Agreement or pursuant to a rransaction permitted by Section 4.6, no Member or person or entity controlled by, controlling or under common control with the Member (each such person or entity is dcfined as an “mate”). is entitled to remuneration for sdces rendered or sods provided to the Company, Howew. the Company shall reimburse the Members and their Affiliates for organizarional expenses (including, without limitation, legal and accounting fees and costs) incurred to form the Company, prcpage the Articles and this Agreement and, as approved by the Members, for the actual. cost of goods and materials used by the Company. ARTICLE W MANAGEMENT AND CONTROL OF THE COMPANY N. I Management and ‘Powers. The business, property and affairs of the Company shall bf mawed by the Members Accordingly, unless otherwise limited by the Articles or this Agreement. each Member shall have full, and complete authority, power, and discretion to manage and control the businas. prop- and affairs of the Company, to make all decisions regarding those e00.d d6SIT0 Z0/€0/60 zeae LLS 02s mattem and to perform any and all orher acts or activities customary or incident to the management P of the Company‘s business, property and a&rs. Each Member is authorized to endorse checks, drafts, and other evidence of indebtedness made payable to the order ofthe Company, and may tip all checks, drafts, and other instruments obligating the Company to pay money. and may sign contracts and obligations on behalf of the Company. IV.2 wens on Power of Members. Notwithstanding any other provisions of this Agreement. no debt or liability of more than $10,000 may be contracted on behalf of the Company by any Member without the opptoval of all the then Members. Additionally, no Member shall have authority to cause the Company to engage in the following transactions without first obtaining the approval of all Members: (i) The sale. exchange or other disposition of all. or substantially aU, of tho Company’s assets occurring as part of a single transaction or pla or in multiple transactions over a 12 month period. except in the orderly liquidation and winding up of the business of the Company upon its duly authorized dissolution. (ii) The merger of the Company with another limited liability company or corporation. general partncrship, Emitcd partnership or 0th entity (except that any act which would cause a Member to incur personal liability for the obligations of the Company or its successor shall also require the consent of such Member). (iii) An alteration ofthe authorized businesses ofthe Company as set r forth in Section 1.4. (iv) Any act which would make it impossible to any on the ordinary business of the Company. (v) The confession of a judgment against the Company. (vi) Any other transaction dcsuibed in this Agreement as requiring the approval, consent or vote of the Members. W.3 Member Am. No mud or regular meetings of the Members are required to be held. However, if such meetings are held, such meetings shall be noticed, held and conducted pursuant to the Act. In any instance in which the approval of the Members is required under this ,Agreement, such approval may be obtained in any manner permitted by the Act. Unless otherwise provided in thii Agramcnt, approval of the Members shall mean the approval of Members who.hold n majority of the Membership lntcmts. IV.4 DevotibnofTime. Each Member shall devote whatever time or effo‘on as he or she deems appropriate for the funhcrance of the Company’s business. IV.5 ComDetina Activitics. Thc Members and thcir Af€iiiatcs may mpgc or invest in any activity, including without limitation those that might be in direct or indirect competition with r the Company. Neither the Company nor any Member shall have any right in or to such other activities or to the income or proceeds derived therefrom. NO Member shall be obligated to present r any investment opportunity to the Company, even if the opportunity is of the character that, if premted to the Company, could be taken by the Company. Each Member shall have thc risht to hold any investment opportunity for his or hcr own account or to recommend such opportunity to persons other than the Company. The Members acknowledge that catah Members and their Affiliates own and/or manage other businesses. including businesses chat may compete with the Company and for the Members' time. Each Member hereby waives any and all tights and claims which he or she may otherwise have agtinst the other Members and their Affiliates as a result of any of such activities. IV.6 Transactions between the Comaanv and the Mmh. Notwithstanding that it may constitute a conflict of interest. the Members and their Aaliates may engage in any transaction with the Company so long as such tranwion is not expressly prohibited by this Ageemmt and so long as the tcrms and conditions of such transaction, on an overall basis, are fair and reasonable to the Company and are at lcast BS favorable to the Company as those that arc generally available 6om persons capable of similarly pcrforming them or if Members holding a majority of the Membaship Interests held by the Members having no interest in such transaction (other than their intaests as Members) approve the transaction in writing. ARTICLE V ALLOCATIONS OF NET PROFITS AND NET LOSSES AND DISTRIBUTIONS r' V. 1 Definitions. When used in rhis Agrcemcnt, the following tms shall have the meanings set for&h below: "Q&" shall mean the Internal Rmnue Code of 1986. as amended from time to time. the provisions of succeeding law, and to the exte.nt applicable, the Treasury Rcgulations. .. -" shall have the meaning ascribed to the term "Partnership Minimum Gain" in the Treasuv Regulations Section 1.704-2(d). "Member Nonrecourse D&" shall have the meaning ascribcd to the term "Partner Nonrecourse Debt" in Treaw~y Regulations Section 1.704-2@)(4). Nonrecourse Dedt~&m" shall mean items of Company loss, deduction, or We Seaion 705(a)(2XB) expenditures which are amiutable to Member Nonrcwurse Debt. "Net Prom and 'm shall mean the income, gain, loss, deductions, and credits of the Company in the aggregate or separately stated. as appropriate. determined in accordance with the method of accounting at the clox of each fiscal year employcd on thc Company's information tax return filed for federal income tax purposes. "&~"IW shall have the meaning spt forth in Treasury Regulations Section 1.752-1(a)(2). 500.d dl7S1T0 20/€0/60 4 zem LLS 02s "Trcasurv Rmlationt" shall man the find or temporary rcgulations that have r been issued by the US. Department of Treasury pursvant to its authority under the Code. and any suuxssor regulations. V.2 Allwtions ofNet Profit and Net Loss. A. Net LOSS. Net Loss &.all be allocated to the Members in proporti,on to their embers ship Interest. Notwithstanding the previous sentence, loss allocations to a Member shall be made only to the extcnt that such loss dlocations will not mats a deficit Capital Account balance for that Member in excess of an mount, if any, equal to such Member's share of Company Minimum Gain that would be realized on a foreclosun of the Company's propeny. Any loss not allocated to a Member because of the foregoing provision shall be allocated to the other Membcrs (to the extent the other Members arc not limited in respect of the allocation of losses under this Seaion 5.2A). Any loss reallocated under this Section 5.2A shall be taken into account in computing subsequent allocations of income and losscs pursuant to this Article V, so that the net mount of any item so allocated and the income and losses allocated to each Member pursuant to this Article V, to the extern powile, shall be equal to the net amount that would have been allocated to each such Member pursuant to this Article V if no reallocation of losses had occurred under this Section 5.2A. B. Net Profir. Net Profit shall be allocated to the Members in proportion to their Membership Interests. r v.3 -. Notwithstanding Seaion 5.2. A. M-. If there is a net decrease in Company Minimum Gain during any fiscal year, each Member shall be specialiy allocated items of Company income and gain for such fiscal year (and, ifnacssary. in subsequent fiscal yclus) in an amount equal to the portion of such Member's share of the net decreasc in Company Minimum Gain that is allocable to the disposition of Company property subject to a Nonrecourse Liabity. which share of such net d-sc shall be determined in aceordance with Treasury Regulations Section 1.704-2(g)(2). Allocetions pursuant to this Section 5.3A shall be made in proponion to the amounts required to be allocsred to each Member under this Section 5.3A. The items to be x) allocated shall be determined in accordance with Trcasury Rcplations Section 1.704-2(9. This Scaion 5.3A is intended to comply with the minimum gain chargeback requirement contained in Treasury Rcgulatioos Section 1.704-2(f) and shall be interpreted consistently therewith. B. er Nonrmm =tt. Tf there is a net decrease in Company Minimum Gain attributable lo a Member Nonrecourse Debt, during any fiscal year, each member who has a share of the Company Minimum Gain attributable to such Membcr Nonrccoursc Debt (which share shall be determined in accordance with Treasuly Regulations Section I .704-2(i)(S)) shall be specially allocated items of Company income and gain for such fiscal year (and, if necessary7 in subsequent fiscal years) in an amount equal to that portion of such Member's share of the net decrease in Company Minimum Gain atmbutabk to such Memba Nonrccoursc Debt that is allocable to the disposition of Company property subject to such r Member Nonrecourse Debt (which share of such net decrease shall be detcrnhd in accordance with Tremry Regulations Section 1.704-2(i)(S)). Allocations pursuant to this Section 5.3B shall be made 900'd dtStT0 Z0/C0/60 in proportion to the amounts required to be all4 to cach Member under this S-n 5.3B. The items to be so allocated shall be determined in accordance with Treasury Regulations Section 1.704- 2(i)(4). This Section 5.3B is intended to comply with the minimum gain chargeback rquiremcnt contained in Treasury Regulations Section 1.704-2(i)(4) and shall bc interpreted consistently therewith. C. Nonrecourse Dedu- Any nonrecourse deductions (as ddied in Trtasury Regulations Section 1.704-2(b)(I j) for any fiscal year or other period shall be specially allocated to the Members in proportion to their Membership Interests. D. Member N0nrm.m. Those items of Company loss, deduction, or Code Secrion 70S(n)(Z)(B) expenditures which are attributable to Member Nonrccourso Debt for any fiscal year or other period shall be specially allocated to the Member who bears the economic risk of loss with respect to the Member Nonrecourse Debt to which such items are amibutable in accordance with Treasury Regulations Section 1.704-2(i). E. Oualified Income Of&. If a Member unexpectedly receivcs any adjustments, allocations. or distributions dcscribcd in Treasury Regulations Section 1.704- I@)(2)(ii)(dX4). (5) or (6). or any other went creates a ddicit balance in such Member's Capital Account in excess of such Member's share of Company Minimum Gain, items of Company income and gain shall be specially allocated to such Member in an amount and manner sufficient to eliminate such excess defiat balance as quickly as possible. Any speaal allocations of items of income and gain pursuant to this Section 5.3E shall be taken into account in computing subsequent allocations of income and yain pursuant to this Article V x) that the nct amount of any item so allocated and the income, pain, and losses allocated IO each Member pursuant to this Section 5.3E to the extent possible, shall bc qual to the net amount that would have been allocated to each such Member pursuant to the provisions of this Article V if such unexpcctcd adjustments* allocations, or distributions had not occurred. V.4 Code Se@-ion 7Wc) Allocations. Notwithstanding any other provision in this Anicle V. m accordance with Code Section 704(c) and the Treasury Regulations promulgated thereunder, incomq gain, bss, and deduction with respect to any property contributed to the capital of the Company shall. solely for tau purposes, be allocated amon8 the Members so as to take account of any variation between the adjusted basis of such propercy to the Company for fcdd income tax purposes and its fair markex value on the date of contribution. Allowions pursuant to this Section 5.4 are solely for purposes of federal. state and local taxes. As such. they shall not Hect or in any way be taken into account in computing a Member's Cnpital Account or share of profits, losses, or orha items of distributions pursuant to any provision of this Agreement. v.5 Distribution -sets bv the C-. Subject to applicable law and any limitations contained elsewhcre in this Agreement, Members holding a majority of the Membershrp Interests may elect from time to time to cause the Company to make distributions. Distributions shall be first to the Members in proponion to their unreturned capital conmiutions until each Mcmber has recovesed his or hcr capital contribution.. and then to the Members in proportion to their Membership r Interests. 2886 LLS 02s t ARTICLE VI TEUNSFER AND ASSIGNMENT OF INTERESTS VI.1 Transfer and Assime. No Memba shall be entitled to transfer, Wigrs convey. encumber or in any way alienate all or any part of his or her Membership Interest (~llccti~ely, "transfer") except with the prior approval of all Members, which approval my be givm or withheld in the sole discretion of thc Memh. vI.2 Substitution of "e. A transferee of a Membership lnterest shall have the right to bcMme a substimc Member only if (i) consem of the Members is given in accordance with Section 6.1. (i) such person executes an instrument satisfactory to the Members accepting and adoptiny the terms and provisions of this Agreement, and (iii) such person pays any reasonable expenses in connection with his or her admission as a new Member. The admission of a substitute Member shall not release the Member who assigned the Membership lnterm from any liability that such Member may have to the Company. VI.; x-on ofthis of Partial Mcmbhi~ m. Upon a transfer in violation of this Attide VI, the transfenc shall have no right to vote or participate in the mamagemat of the Company or to excrcise any rights of a Member. Such transferee shaU only be cntitlcd to receive the share of he Company's Net Profits, Net Losses and distributions of the Company's assets to which the transfiror wdd othenvisc be emitled. Notwithstanding the immediately preccdine, sentences, if, in the determination of the remaining Members, a transfer in violation of this Article Vl would cause the termimion of the Company undcr the Code, in the sole discretion of the remaining Members. the transfer shall be null and void. ARTICLE Wl CONSEQUENCES OF DlSS0LU"ION EVENTS AND TERMINATION OF MEMBERSHIP INTEREST vu. 1 wtion Eves. Upon the occurrence of the death. withdtawal, resignation, retirement, insanity. bankruptcy or dissolution of any Member ("Dissolution Event"), the Company shall dis~oive unless dl ofthe remaining Members ("Remaining Members") consent within ninety (90) days of the Dissolution Event to the continuation of the business of the Company. if the Remaining Members so consent, the Company ador the Remaining Members shall have the right to purchase. and if such right is exercised, the Member (or his or her lyal representative) whose actions or conduct resulted in the Dissolution Event ("'Former MemW) shall sell, the Former Member's Membership Interest ("Former Member's Interest") as provided in this Article V11. M1.2 w. Notwithstandiig Section 7.1. upon thc withdrawal by a Member in accordance with Section 3.2 such Member shall be treated as a Former Member, and, unless the Company dissolves BS a result of such dhdrawal the Company andlor the Remaining Members shall have the right to purchase, and if such right is exercised, the Former Member shall sell, lhe Former Mmbds Interest as provided in this Article VII. f M1.3 kc&-. The purchase pricc for the Former Member's Interest shall be r the fir market due of the FonnSr Membef'8 Is d#enined by M indcpcndcnt 8ppisa jointly sclectcd by the Former Member ad by R~amhbg Membm holding a majority of the remaining Membership Interests. The Company and the Fmer Member shall each pay one-half or the cost of the appraisal. Notwithstanding the foqoing. if the Dissolution Event results 6om a breach ofthis Ageemeat by the Fonner Member. the purchase price shall be reduced by an mount equal to the damages suffered by the Company or the Remaining Mctnbers as a result of such breach. vll.4 Notice of Intent to bms. Wzthin thirty (30) days after the fair market valuc of the Former Membds Merest has been de!ermincd in accordance with Section 7.3. each Ranaining Member shall notify the Members in writing of his or her desire to purchase a portion of the FO~R Mcmbds Interest. The failure of any Ranaininy Mcmber to submit a notice within the applicable period shall constitute an election on the pan of the Member not to purchase any of the Former Member's Interest. Each Remaining Member so elding to purchase shall be entitled to purchase a portion of'the Former Membds Interest in the same proportion that the Manbcrship Interest of the Remaining Member bcan to the aggregate of the Membership Interests of all of the 'Remaining Members electing to purchase the Former Mcmbds Interest. V11.5 -nfir- All of the Former Member's Tntcrc&{. If any Remaining Maber cks to purchase none or less than all of his or her pro rata share of the Former Member's Interest. then the Remaining Members can elect to purchase more than their pro rata sharc. lfthc Remaining Members fail to purchase the entire intaest of the Former Member. the Company may purchase any remaining share of the Former Member's Interest. r V11.6 w". Thc Company or the Remaining Members, as the case may be, shall pay at thc closing one-fifth ( 1/5) of the purchase price and the balance of the purchase price shall be paid in four qual annual principal installments, plus accrued interest, and be payable each yea on the anniversary date of the closing. .The unpaid principal balance shall BCCN~ interest at the current applicable federal rate BS provided in the Code for the month in which the initial payment is made, but the Company and the Ranainirrg Membcrs shall have the right to prepay in hll or in part at any time without penalty. The obligation of each purchasing Remaining Member, and the Company, as applicable, to pay its portion of the balance due shall be evidenced by a separate promissory note executed by the respective purchasing Remaining Mmbm or the Company. as applicable. Each such promissory note shall be in nn original principal amount qual to the portion owed by the respective purchasing Remaining Member or the Company, as applicable. The promissory note executed by each purchasing Remaining Mcmk shall be secured by a pledge of that portion of the Former Memba's lntercst purchased by such Remaining Member. V11.7 Closins of Purcw-ber's Interest. The closing for tk. sale of a Fonner Member's lnterest pursuant to this Article W shall be held at 1O:OO am. at the ptincipal office of Company no later than sixty (60) days after the determination of the purchase price, accept that if h closing date falls on a Saturday. Sunday, or California legal holiday, then the closing shall be held on the next succcedmg business day. At the closing, the Former Mmber shall deliver to the Company or the Remaining Members an inment oftransfer (containing warranties oftitle and no r cncumbranccs) conveying tbe Fmer Membcr's Interest. The Former Member, the Company and the Remaining Members shall do all things and execute and deliver all papers as may be reasonably necessary fully to consummate such sale and purchase in accordance with the terms and provisions r OfthiSAgrtnncnt. ARTICLE VU ACCOUNTING, RECORDS, RETORTING BY MEMBERS VIII. I &&Lwd Records. The books and records of the Company shall be kept in accordance with the accounting methods followed for federal income tax purposes. The Company shall maintain at its principal office in Califomia all ofthe following: A A current list of the full name and last known business or residence address ofeach Member set forth m alphabetical der, together with the capital contfibutior& capital account and Membership Intern of each Member, B A copy of the Arricles and any and all amendments thereto together with executed copies of any powen of attorney pursuant to which the Anides or any amendments thereto have been executed; C Copies of the Company's federal. state, and local income tax or information returm and reports, if any, for the six (6) most recent taxable years; D A copy of this Agreement and any and all amendments rhereto together r with executed copies of any powers of attorney pursu~t to which this Agrumat or any amendments thereto have been executed; E Copies of the financial statanenrs of the Company. if any, for the six (6) most recent fiscal ycan; and F The Company's books and records as they rdate to the internal affairs of the Company for at least the current and past four (4) fiscsl years. VI11.2 -. The Company shall cause to be filed, in accordance with the As all reports and documents required to be fled with any governmental agency. The Company shall cause to be prepared a1 least annually information concerning the Compq's operations necessary for the completion of the Members' federal and state income tax mm. The Company shall send or cause to be sent to each Member within ninety (90) days atla the end of each taxable year (i) such information as is necessary to complete the Members' federal and aate iocome tax or information returns and (ii) a copy of the Companys federal, stnte, and local income tax or information returns for the year MI1.3 Bank. The Members shall maintain the funds ofthe Company in one or more separate bank accounts in the name of the Company, and shall not permit the funds of the Company to k commingled in any fashion with the hds of any other person. Any Member, acting r alone, is authorized to endorse checks. drafts, and other evidences of indcbtedness made payable to the order of the Company, but only for the purpose of deposit into the Company's accounts. All checks. drafts. and other insmmcnts obligating the Company to pay money may be signal by thc Manager, acting #one. VlU.4 Tax Matters for the Corn. David M. Bmtlty is designwed as "Tax Matters Partner" (as defiaed in Code Section 623 1). to represent the Company (at the Company's expense) in connection with all examination of the Company's &i by tax authorities and to crpcnd Company funds for professional services and costs associated therewith. ARTICLE M DISSOLUTlON AND WINDING UP 1x. 1 wons oflXswhrtion. The Company shall dissolve upon the occurrence of any of the following events: A Upon the happeaing of any event of dissolution specified in the Anides; B Upon the entry of a decree of judicial dissolution pursuant to Section 1735 1 ofthe Corporations Code; C Upon the vote of Members holding at least seventy-five percent (75%) of the Membership Interests; r D The OCCUHCIW of a Dissolution Event and the failure of the Remaining Members to consent in accordance with Settion 7.1 to continue the business afthe Company within ninety (90) days after the occurrence of such event: or E The sale of all or substantially all of the assets of Company IX.2 rd&Q. Upon the dissolution ofthe Company. the Company's assets shall be disposed of and its affairs wound up. The Company shall give written notin of the commencement of the dissolution to all of its known creditors. IX.3 . .. . After determining that all the known debts and liiiies of the Company have been paid or adequately provided for, the remaining assets shall be distributed to the Members in accordance with rheir positive capital account balances, after taking into account income and loss allofations for the Company's taxable year during which liquidation occurs. lX.4 'Limitations on Pavments Made in Dissolution. Except as othenvist specif~cally provided in this Agreemcm, each Mcmba shall be cndtlCp to look only to rhe asws of the Company for the return of his or her positive Capital Account balance and shall have no recourse for his or her Capital Contribution and/or share of Ner Profits against any other Member except as provided in Article X. r 110'd des110 Z0/C0/€0 ZE86 LLS 02s C catificme of~iu~lutirm upon the dioohrtion ofthc Company and a certifioate ofcan~datition upan IX.5 Cenificates. The Company shall file with the California Secretary of State a the completion of the winding up of the Company's firs. ARTICLE X INDEMNIFICAT#ON X:I X. The Company shall indemnify any Manbcr and may indemnify any person who was OT is a PMY or is rhrearcned to be madc a party to any threatcned, pending or completed action, suit or proceeding by reason of the 5ct that he or she is or was a Member, 0ffice.r. employee or other agent of the Company or that. being or having been such a Member, officer, employee or agent. he or she is or was sening at the request of the Company as a manager, director. officer. unployee or other agan of another limited liability company. corporation, partnership, joint venture, trust or other enterprise (all such persons being referred to hereinafter as an "agent"), to the fullsst extent permitted by applicable law in effect on the date hereof and to such greater extent as applicable law may hereafter from time to time permit. ARTICLE XI INVESTMENT REPRESENTATIONS Each Member hereby represents and warrants to, and agrees with, the Members and the r company as fo~~ows: XI. 1 P-SlW! Rel&ys. He or she has a preexisting personal or business relationship with the Company or one or more of its officers or controlling persons, or by reason of his or her business or financial experience, or by reason of the business or financial cxpcricnce of his or her financial advisor who is unaffiliated with and who is not compensated, directly or indirectly, by the Company or any afllliie or selling apt of the Company, hc or she is capable of evaluating the risks and merits of an investment in the Company and of protecting his or her own interests in connection with this invesment. .. X.2 &A&. He or she has not seen, received becn presented with, or been solicited by any Icaflct. public promotional meeting article or any othm fonn of advertising or gmral solicitation with respect to the sale of the Membmhip Interest. XI.3 -. He or she is acquiring thc Manbcrship Interest for investment purposes for his or her own account only and not with a view to or for sale in connection with any distribution of all or any part of the Membership Interest, No other person will have any direct or indirect beneficial interest in or right to thc Membership htcrcst. c ARTICLE XU ~LLANEOUS m.1 to the CQ~PBIIY. Counsel to the Company may also be counsel to any Member or any Affiliate of a Member. The Membas may execute on behalf of the Company and the Members any consent to the repmon of the Company rhat counsel msy request pursuant to the California Rules of Professional Conduct or similar rules in any other jurisdiction ("Rulas"). The Company has initially selected Zevnik Horton Guibord & McGavan. LLP ("Company Counsel") as legal counsel to the Company. Each Member acknowledges that Company Coud does not represent any Member in the absence of a clear and explicit agrement to such dfect between the Member and Company Counsel. and that in the absence of any such written agreement Company Counsel shall owe no duties directly to a Member. Notwithstanding any adversity that may develop. in the event any dispute or controversy arises between any Members and the Company, then each Member apes that Compiny Counsel may represent either the Company or such Member in any such dispute or controversy to the extent pcrmittd by the Rules, and each Member hereby consents to such representation. Each Member funher aclmowledge6 that Company Counsel has represented the interests of the Managing Member in connection with the formation of the Company and the prepdon and negotiation of this Agreement. Xn.2 -. This Agreement and the Articles constitute the complete and nrclusive statement of agreement among the Members with respect to the subject matter herein and therein and replace and supersede all prior written and oral agrrancnts atnong the Manbcrs. To the extat that any provision of the Arijdts conflict with any provision of this Agemmt, the Mdes r control. XII.3 Byldlnn. Subject to the provisions of this Agreement relating to transferability, this Apanmt will be binding upon and inure to the benetit of the Manbers, and their respective succcssor~ and assigns. .. XI1.4 -. All pronouns shall be deemed to refer to the masdine. feminiw or neuter, singular or plural, as the context in which tky are used may quire. AI1 headings herein are inserted only for convenience and ease of reference and are not to be considered in the interpretation of any provision of this Agreement. Numbered or lettered articles, sections and subsections herein contained refer to articles, sections and subsections of this Agreement unless otherwise expressly stated. In the event any claim is made by any Member relating to any Connict, omission or ambiguity in this Agrcunen~ no presumption or burden of proof or persuasion shdl be implied by vinue of the fact that this Agreement was prepared by or at the request of a particular Member or his or her counsel. XIT.5 Juridiaion. Each Member hereby consents to the exclusive jurisdiction of the State and federal courts sitting m California in any action on a claim arising out of, under or in connection with this Agreement OT the transactions mntempkted by this Agacment. Each Member further agrcss that personal jurisdiction over him or her may be eff!ecred by service of process by registered or certified mail addressed as provided in Section 12.8 ofthis Agreement, and that when r so made shall be as if served upon him or her personally within the State of California. XII.6 &~-utj~:rsn. Except as otherwise provided in this Agreetnent. any controversy r betwem the partiaa arising out of this A- drall be submitted to the American Arbitntiin &sochion for ahitration in Sen Diego, California. The cos& of the arbifation. including any American Arbitration Association adminisIration kc, the prbior's fy and costs for the use of facilities during the hearings, shall be borne equaily by the partics to the arbitration. Attorneys' focs may be awarded to the prevailing or most prevailing party at the discdon of the arbitrator. The provisions of Sections 1282.6. 1283. and 1283.05 ofthe California Code of Civil Procedure apply to the arbitration. The arbitrator shall not haw any power to alter, md. modi6 or change any of the terms of this Ageement nor tn grant any remedy which is either prohibited by the terms ofthis Ament, or not available in a court of law. xll.7 SmbiliE. If any provision of this Agreement or the application of such provision to any person or circumstance shall be held Mid, the reminder ofthis Agrement or the application of such provision IO persons or circumstances other than those to which it is held invalid shall not be affected thereby. Xl1.8 ms. AnynoticctobegiMnortobeservedupontheCompanyoraayparry hereto in connection with this Agreement must be in writing (which may include facsimile) and will be deemed to have been given and received when ddivered to the address specified by the party to receive the notice. Such notices will be given to a Member at the addms specified in Exhibit A hueto. Any party may, at any time by giving five (5) days' prior written notice to the other Members. designate any other address in substitution of the foregoing address to which such notice will be XII.9 Amendments. All amendments to thii Agrcetnm will be in writing ad signed by all of the Membas. XI. 10 vCwmeroans. This Agreement may be exemted in two or more coun- terparts, each of which shall be dd an original, but all of which shall constitute one and the same instrument. X11.11 &ornev Fees. In the event that any dispute between the Company and the Members or among the Members should rrsult m litigation or &itration. the prevaibg psny in such dispute shall be entitled to remver from the other pany all reasonable fees. costs and expaw of enforring any right of the prevailing pmy, indudiq without hitation. rrasonatik attorneys' fas and experues, all of which shall be dmed to have accrued upon the commencement of such action and shall be paid whether or not such action is prosecuted to judgment. Any judgment or orda enrered in such action shall contain a specific provision providing for the recovery of attorney fees and costs incurred in enforcing such judgment and an award of prjudgmnn interest hm the date of the breach at the maximum rare dowed by law. For the purposes ofthis Section: (a) attorney &IS shall mdude, without limitation. fees incurred in the following: (1) post-judgmmt motions; (2) contempt proceeding.; (3) garnishment, levy, and debtor and third parry examination% (4) discovery; and (5) bankruptcy litigation and @) prevailiig party shall mean the party who is determined in the proceeding to have prevailed or who prevails by dismissal. default or otherwise. r c shall not exclude any other remedies to whicb any pmon may be lawfully entitled. XI. 12 Remedies Cumulative. The remedies under this Agreement are cumulative and EXHJBIT A CAPlTM, CONTRIBUTlON AND ADDRESSES OF MEMBERS Member’s Capital Member’s Membds Name Cbtnbutme mer‘s .. hlrem -0 David M. Bentley 3561 Easl Sunrise 51.000 So?? Drive, Suite 23 1 Tucson, AZ 85718 Maggie Bentley 3561 East Sunrise sl.m 50?h Drive, Suite 25 1 Tucson, AZ 85718 s2.000 City of Carlsbad 1635 Faraday Avenue Carlsbad CA 92008 Applicant: BENTLEY MONARCH, LLC pescrl.’otm EIR02002 - 5294 a8/30/02 0002 01 02 134,935.00 CGP 134?35.0( Receipt Number: ROO29377 Transaction Date: 08/30/2002 Pay Type Method Description Amount ”””_”_ _”“””_ ”””””“”” ““””” Payment Check ,1992 52,489.71 Payment Check 7149 82,445.29 c r n - - 0 n .. - 0 3 .- ..