HomeMy WebLinkAbout2012-12-04; Public Financing Authority; 45; Management Agreement KemperSportsCARLSBAO PUBLIC FINANCING AUTHORITY - AGENDA BILL
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THE CROSSINGS GOLF COURSE
MANAGEMENT AGREEMENT BETWEEN THE
CARLSBAD PUBLIC FINANCING AUTHORITY
AND KEMPERSPORTS MANAGEMENT, INC.
DEPT.
DIRECTOR ^>
MTG. 12/4/12
THE CROSSINGS GOLF COURSE
MANAGEMENT AGREEMENT BETWEEN THE
CARLSBAD PUBLIC FINANCING AUTHORITY
AND KEMPERSPORTS MANAGEMENT, INC.
GEN COUNSEL //^
DEPT. P&R
THE CROSSINGS GOLF COURSE
MANAGEMENT AGREEMENT BETWEEN THE
CARLSBAD PUBLIC FINANCING AUTHORITY
AND KEMPERSPORTS MANAGEMENT, INC. EXEC DIR.
RECOMMENDED ACTION:
Approve Resolution No. 60 approving the Carlsbad Golf Course Management
Agreement with KemperSports Management, Inc.
ITEM EXPLANATION:
In April 2000, The City of Carlsbad and the Board ofthe Carlsbad Municipal Water District
formed the "Carlsbad Public Financing Authority" (CPFA) Joint Powers Authority (JPA). The
purpose of the Joint Powers Authority was to assist the city with the financing, construction, and
management of the day to day operations of the municipal golf course project.
On July 28, 2007 the Public Finance Authority entered into a 5 year agreement with Kemper
Sports Management (KSM) to manage the Crossings golf course. On April 26, 2012 the KSM
contract was extended by six (6) months until January 27, 2013 for several reasons: 1) to allow
for completion of Capital projects that were unden/vay to improve the course and club house,
including the recently opened Player's Lounge and the re-design ofthe green at hole number
18, 2) golf course revenues were trending upward and it was best to keep the positive
momentum moving forward without interruption, and 3) any potential change in management
should take place during the slower winter season as opposed to the peak summer season to
lessen any potential revenue loss associated with a transition.
In keeping with the Rules and Regulations ofthe CPFA for procurement of professional
services, in October 2012 a Request for Qualifications and Proposals (RFP) was advertised
inviting experienced, qualified firms to provide proposals to operate, manage, and maintain the
entire golf course including the clubhouse and facilities therein. Ten proposals were received
and are listed below.
Company Company Location
Billy Casper Golf Vienna, VA
JC Resorts La Jolla, CA
KemperSports Management Northbrook, IL
Landmark Indian Wells, CA
Monarch Golf Management Carlsbad, CA
OB Sports Scottsdale, AZ
New Way Landscape & Tree Service San Diego, CA
Trademark Golf Management Marietta, GA
Troon Scottsdale, AZ
Western Golf Properties Lake Forest, CA
DEPARTMENT CONTACT: Chris Hazeltine 760-434-2826 chris.hazeltine@carlsbadca.aov
FOR SECRETARY'S USE ONLY. X BOARD ACTION: APPROVED X CONTINUED TO DATE SPECIFIC •
DENIED p CONTINUED TO DATE UNKNOWN •
WITHDRAWN • RETURNED TO STAFF •
AMENDED • BOARD RECEIVED THE •
REPORT/PRESENTATION
OTHER-SEE MINUTES •
Page 2
The review committee, consisting ofthe Finance Director, Senior Accountant, Parks and
Recreation Director and Acting Park Development Manager, evaluated, scored and ranked the
proposals using established reviewing criteria. The top three (3) proposers, as ranked by the
review committee, were invited to attend an extensive interview.
After this thorough process, the committee selected KemperSports Management, Inc. (KSM) as
the best qualified firm and proceeded with the negotiation of a management agreement. Key
factors in selecting KSM include their intimate knowledge of The Crossings operations, their
demonstrated commitment to continuous improvement which has led to successful upgrades to
the facility and its operation. Other factors include their broad experience in managing other
similar municipal golf courses, the quality ofthe courses they manage, their excellent customer
service philosophy and high standards of care they have demonstrated at The Crossings and
their other courses. Further, the current operation of The Crossings has steadily improved over
the last two (2) years. Golf rounds and revenues are increasing, and the 2013 budget and 10
year financial plan show continued growth. In 2012, Golf Course revenues will exceed
expenses, and for the first time, net golf course revenues will be used to help pay down the
annual debt sen/ice associated with the development ofthe Golf Course.
After thorough negotiations, City staff and KSM have drafted an agreement for the operations of
the course. (Exhibit # 2)
The Management Agreement provides that KSM will be responsible to manage and operate the
18-hole golf course, driving range, club house (The Canyons and Player's Lounge), pro shop
and maintenance facility. If approved, this Agreement will commence on January 28, 2013
when the previous extension expires. The agreement may be extended for one additional five
(5) year period upon mutual agreement of both parties. KSM's primary responsibilities will be:
• All day-to-day operations including building and course maintenance, course
reservations, tee times, course marshals, cart rentals, driving range, golf instruction, and
tournaments
Hiring, training, and supervision of all employees
Preparing Annual Plan and Reports
Managing all marketing and promotional activities
Making recommendations to the Authority regarding green fee changes
Acquiring all necessary goods and services
Acquiring all necessary permits and licenses including those related to food preparation
and alcohol beverages
ENVIRONMENTAL IMPACT
Pursuant to Public Resources Code Section 21065, this action does not constitute a "project"
within the meaning of CEQA in that has no potential to cause either a direct physical change in
the environment, or a reasonably foreseeable indirect physical change in the environment, and
therefore does not require environmental review.
Page 3
FISCAL IMPACT:
The fees for the Management Agreement are comprised of two parts: a fixed fee and an
incentive fee. Since the Authority used a tax-exempt bond issuance to partially finance the
golf course construction, there are certain restrictions on how the management agreement
can be structured. The incentive portion ofthe fee must be based on gross revenues, not net
revenues, and the incentive portion of the fee cannot be greater than the fixed portion.
The fees contemplated in the agreement are proposed as a fixed fee of $125,000 per year,
adjusted yearly by a CPI (estimated at 2%), plus the cost of the salaries and benefits of the
key employees as defined in the agreement. This will be paid monthly in advance.
During the Management Term, KSM shall also receive from Authority, as Percentage
Management Fee, two percent (2%) of that portion of gross revenues between $5,000,000
and 5,500,000, 5% of revenues between $5,500,001 and $6,500,000 and 10% of revenues in
excess of $6,500,000.
For example, ifthe gross revenues for a year were $7,000,000, KSM would receive a Fixed
Management Fee of $125,000 (plus 2% of $500,000 = $10,000 and 5% ofthe next
$1,000,000 = $50,000) and 10% of the amount exceeding $6,500,000 = $50,000) for a total
of $110,000. The variable management fee is capped at the amount of the annual fixed
management fee, or $125,000 in the first year.
KSM has demonstrated its commitment to the financial health of the course by accepting a
base fee that is $25,000 less than the management fee defined in the current agreement
($125,000 versus $150,000). Also, KSM has agreed to a new incentive fee formula, which
will require that Golf Course gross revenues exceed budgeted revenue projections in order
for KSM to realize the maximum incentive benefit. All costs, expenses and debt payments of
the Golf Course and related facilities are, over time, expected to be paid for from revenues
generated by the Golf Course. However, if revenues are not sufficient to make the bond
payments, the City's General Fund will be pledged to ensure that the bond payments are
made.
EXHIBITS:
1. Resolution No. 60 approving the Carlsbad Golf Course Management
Agreement with KemperSports Management, Inc.
2. Golf Course Management Agreement between the Authority and KemperSports
Management, Inc.
EXHIBIT 1
1 RESOLUTION NO. 60
2 A RESOLUTION OF THE BOARD OF DIRECTORS OF
THE CARLSBAD PUBLIC FINANCING AUTHORITY,
^ APPROVING THE CROSSINGS GOLF COURSE
MANAGEMENT AGREEMENT BETWEEN THE CARLSBAD
PUBLIC FINANCING AUTHORITY AND KEMPERSPORTS
5 MANAGEMENT, INC.
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WHEREAS, the Carlsbad Public Financing Authority ("CFPA") currently has a
Golf Course Management Agreement ("Agreement") (dated July 28, 2007) with
KemperSports Management (KSM) to manage The Crossings at Carlsbad golf course
IQ ("The Crossings"); and
11 WHEREAS, the Authority approved an amendment on April, 26, 2012 to the
12 extend the current golf course Management Agreement for six additional months to
1^ January 27, 2013; and
WHEREAS, KSM is currently managing The Crossings in accordance with the
said Agreement; and
WHEREAS, the Agreement is scheduled to expire on January 28, 2013; and
WHEREAS, An RFP for a new management agreement was conducted and ten
(10) proposals were submitted on November 8, 2012; and
2Q WHEREAS, the submitted responsive proposals were reviewed and interviews
21 conducted; and
22 WHEREAS, KSM, Inc.'s proposal was selected by a staff committee as the
23 company recommended for award of the Management Agreement for The Crossing;
and
WHEREAS, a proposed Management Agreement with KSM to maintain and
manage the 18-hole golf course, driving range, club house, pro shop and maintenance
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1 facility; for The Crossings has been prepared and is hereby presented for the CPFA's
2 review and action; and
WHEREAS, this Agreement will commence on January 28, 2013; and
WHEREAS, KSM's responsibilities would include, but not be limited to: all day-
to-day operations, including building and course maintenance, course reservations, tee
times, cart rentals, golf instructions, hiring, training and supervision of all employees,
prepare annual plan and reports, manage all marketing and promotional activities,
making recommendations to the Authority regarding green fee changes, acquiring all
necessary permits and licenses, including those related to food preparation and
11 alcoholic beverages.
12 NOW, THEREFORE, BE IT RESOLVED by the Carlsbad Public Financing
Authority as follows:
1. That the above recitations are true and correct.
2. The form of the Management Agreement, herewith submitted, is approved
substantially in the form submitted. The President of the Board is hereby
authorized to execute the final form of each such agreement on behalf of the
CPFA. The City Manager, subject to the review of the City Attorney, is
20 authorized to approve changes in such agreement deemed to be in the best
21 interests of the CPFA, approval of such changes to be evidenced by the
22 execution of such agreement.
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PASSED, APPROVED AND ADOPTED at a Special Meeting ofthe Board of
Directors of the Carlsbad Public Financing Authority on the 4*^ day of December, 2012,
by the following vote to wit:
AYES:
NOES:
Board Members Hall, Kulchin, Blackburn, Douglas and Packard.
None.
ABSENT: None.
MATT HAUL, Chairman
ATTEST:
LORR/j(INE M\v
(SEAL)
OD, Secreta
CZ .-H
v>;<c
EXHIBIT 2
GOLF COURSE MANAGEMENT AGREEMENT
TABLE OF CONTENTS
RECITALS 1
ARTICLE I
DEFINITIONS 1-4
ARTICLE II
GOLF COURSE OPERATIONS AND MANAGEMENT 4
2.0 Term 4
2.1 Management Of The Golf Course By KSM 4
2.2 Authority Financing • -5
ANNUAL PLAN 5
2.3 Preparation And Approval 5
2.4 Quarterly Review Of Annual Plan 6
CAPITAL EXPENDITURES 6
2.5 Capital Improvement Funds 6
2.6 Capital Improvement Plans 7
2.7 Implementation of Capital Improvement Proj ects 7
2.8 Responsibilities of KSM 7-9
PERSONNEL 9
2.9 General 9
2.10 Pension and Benefit Plans 9
2.11 Temporary Assignment of Other KSM Personnel ...9
2.12 Key Management Employees 10
2.13 KSM Acknowledgment of Regulatory and Permit
Documents: Easements 10
2.14 Publicity • 10
2.15 Specific Operating Procedures 10
2.16 Golf Course Hours of Operation 10
FEES AND CHARGES 1
2.17 Setting of Fees 1
2.18 City Use Day ^ 1
2.19 Resident Green Fee Discount 1
2.20 Food and Beverage Operations 1
2.21 Office Operations 1
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2.22 Safety and Security 12
2.23 Contracts and Agreements 12
2.24 Alterations to Buildings 12
2.25 Operations and Maintenance Standards 12
2.26 Authority Inspection and Evaluation 12
2.27 Results of KSM's Failure to Take Corrective Action 13
2.28 Exclusions from Imposition of Deductions 13
2.29 Acknowledgement of Parties Conceming Deductions 14
2.30 KSM Performance Evaluation Deposit 14
2.31 KSM Purchases 14
ARTICLE III
INSURANCE REQUIREMENTS AND INDEMNITY 15
3.0 Amounts of Insurance and Coverage 15
3.1 Types of Coverage 15
(a) Workers' Compensation 15
(b) Commercial General Liability 15
(c) Automobile Liability and Garage Keeper's Liability 15
(d) Property Insurance 15
(e) Direct and Indirect Loss of Eamings 15
(f) Fidelity Bond 16
(g) Umbrella or Excess Liability Coverage 16
3.2 Other Insurance Provisions 16
3.3 Insurance Maintained by KSM 16
3.4 Handling of Claims 17
INDEMNITIES 17
3.5 KSM's Indemnity 17
3.6 Compliance with Environmental Law 17
3.7 Environmental Remediation 17
ARTICLE IV
KSM FEES DURING MANAGEMENT TERM: AVAILABLE FUNDS 18
4.0 Forms of KSM Compensation 18
4.1 Fixed Management Fee 18
4.2 Percentage Management Fee 18
4.3 Gross Revenues Defined 19
ARTICLE V
ACCOUNTS: WORKING FUNDS; DISBURSEMENT OF FUNDS;
RECORDS AND REPORTS; GOLF COURSE EXPENSES 20
5.0 Golf Course Accounts 20
5.1 Disbursements from Golf Course Accounts 20
5.2 Available Funds 21
5.3 Remaining Funds 21
5.4 Books and Records 21
5.5 Inspection 22
5.6 Reports to Authority 22
5.7 Golf Course Expenses 22
5.8 Payroll 23
5.9 KSM Accounting Software 23
ARTICLE VI
TERMINATION RIGHTS 24
6.0 Termination by Authority 24
6.1 Termination by KSM 25
6.2 Payments Upon Termination 25
6.3 Curing Defaults 25
6.4 Effect of Termination ..25
6.5 Remedies 25
A. Authority's Remedies 25
B. KSM's Remedies 26
6.6 Remedies Cumulative 26
ARTICLE VII
TITLE MATTERS: ASSIGNMENT 26
7.0 Ownership of Improvements and Personal Property 26
7.1 No KSM Assignment or Subcontracting 26
7.2 Successors and Assigns 27
7.3 Golf Course Name 27
ARTICLE VIII
DAMAGE OR DESTRUCTION; EMINENT DOMAIN: FORCE MAJEURE
EVENTS
8.0 Damage or Destmction 27
8.1 Eminent Domain 27
8.2 Force Majeure Events 28
ARTICLE IX
GENERAL PROVISIONS 28
9.0 Contract Administration 28
9.1 Compliance 28
9.2 Notices 29
9.3 Independent Contractor 29
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9.4 Modification and Changes 29
9.5 Entire Understanding and Agreement 29
9.6 Headings 30
9.7 Consents 30
9.8 Survival of Covenants 30
9.9 Third Parties 30
9.10 Waivers 30
9.11 Applicable Law. Venue: Service of Process 30
9.12 No Presumption Regarding Drafter 30
9.13 Enforceablility of Any Provision 30
9.14 Counterparts; Facsimile Signatures 30
9.15 Covenants Against Discrimination 31
9.16 Non-liability of Authority or Authority Officers and Employees 31
9.17 Time of the Essence 31
9.18 Exhibits and Attachments Incorporated 31
9.19 Authority 31
9.20 Authorization to Executive Director 31
9.21 Possessory Interest 31
9.22 Proprietary Information 31
9.23 Restrictions as to Employees 31
9.24 Outside Business 32
EXHIBITS
Exhibit A - Golf Course Operations and Maintenance
Evaluation Form 20 pages
Exhibit B - Habitat Preserve Area 2 pages
Exhibit C - Notice of Golf Course Deficiency 1 page
Exhibit D - Legal Description of Real Property 2 pages
Exhibit E - Regulatory Permits 39 pages
IV lb
GOLF COURSE MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT ("Agreement") is made and entered into this day of
, 2012 ("Effective Date") by and between the Carlsbad Public Financing
Authority, Califomia, a public entity and joint powers authority (the "Authority"), and KEMPER SPORTS
MANAGEMENT, ESfC, an Illinois corporation ("KSM").
RECITALS
A. WHEREAS, the City of Carlsbad, a municipal corporation ("City"), is the Ovmer of certain
property located in the city of Carlsbad, Califomia, to be developed as a municipal golf course; and
B. WHEREAS, the City has leased the golf course property to the Authority which is responsible for
the operation of the public golf course, known as the "The Crossings Golf Course", located in the City of
Carlsbad, Califomia, consisting of an 18-hole golf course, a driving range. Golf Course Clubhouse, player's
lounge, pro shop, and maintenance facility (collectively, the "Golf Course"); and
C. WHEREAS, the Authority desires to utilize the services of KSM to manage the Golf Course upon
the terms and conditions set forth in this Agreement; and
NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, the
Authority and KSM hereby agrees as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the respective meanings indicated below:
1.0 Affiliate - Any and all corporations, partnerships, trusts, and other entities directly or indirectly
controlled by, controlling, or subject to direct or indirect common control of an entity or person.
1.1 Board of Directors of the Authority - The Board of Directors of the Carlsbad Public Financing
Authority, currently the City Council members and, thereafter as designated by the Board.
1.2 Capital Improvement Funds - The funds disbursed to the Authority pursuant to Section 2.5.
1.3 Capital Improvements - Any alteration, addition, improvement, repair, replacement, rebuilding, or
renovation to the Golf Course, the cost of which exceeds Five Thousand Dollars ($5,000.00).
1.4 Citv - The City of Carlsbad, a chartered municipal corporation.
1.5 Carlsbad Public Financing Authority ("Authority") - is a public entity and joint powers authority
whose members are the City of Carlsbad, a municipal corporation and general law city in the State of
Califomia, and the Carlsbad Municipal Water District, a public agency organized and existing under the
Municipal Water Act of 1911, and a Subsidiary District of the City of Carlsbad.
1/
L6 City Council - The City Council of the City of Carlsbad.
1.7 [Intentionally left blank.]
1.8 Conditional Use Permit - The conditional use permit for the Golf Course approved by and issued by
the City in accordance with the Carlsbad Zoning Code.
1.9 Cost of Sales - All monies expended by KSM for the purchase of consumable items at the Golf
Course, including but not limited to, food and beverages (including liquor) and Pro Shop merchandise.
1.10 Employee Compensation - The direct salaries and wages paid to or accming for the benefit ofthe
management staff and all other persons employed by KSM at the Golf Course, except Key Management
Employees as defined in Section 2.12 of this Agreement, together with all fringe benefits payable to or
accming for the benefit of such employees, including employer's contribution under the Federal Insurance
Contributions Act ("PICA"), unemployment compensation, or other employment taxes, pension fiind
contributions, worker's compensation, group life and accident and health insurance premiums, profit
sharing, retirement, disability and other similar benefits, as determined by KSM and as set forth in the
approved Annual Plan.
1.11 Environmental Laws - All current and future federal, state, and local statutes, regulations,
ordinances, and mles relating to (i) the emission, discharge, release, or threatened release of a Hazardous
Material into the air, surface water, groundwater, or land; (ii) the manufacturing, processing, use,
generation, treatment, storage, disposal, transportation, handling, removal, remediation, or investigation of
a Hazardous Material; or (iii) the protection of human health, safety, or the indoor or outdoor environment,
including, without limitation, the Clean Air Act, the Federal Water Pollution Control Act, the Resource
Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability
Act, the Occupational Safety and Health Act, all amendments thereto, all regulations promulgated
thereunder, and their state or local statutory and regulatory counterparts.
1.12 Executive Director of Carlsbad Public Financing Authority - The person holding the position of
City Manager of the City of Carlsbad, or his or her authorized designee, including but not limited to the
Project Manager.
1.13 Furnishings and Equipment - All fiimiture, fumishings, trade fixtures, apparatus and equipment,
including without limitation course maintenance vehicles and equipment, golf carts, driving range pickers
and pullers, mats, range ball baskets, cash registers, rental golf clubs and bags, ball washers, benches,
uniforms, kitchen equipment, appliances, china, glassware, silverware, office equipment computers, copy
machines, facsimile machines, telephone systems (not including pay telephones), and other personal
property used in or held in storage for use in the operation of the Golf Course, other than Operating
Inventory.
1.14 Golf Course Expenses - The total of (a) all expenses specifically identified as "Golf Course
Expenses" in this Agreement (see Section 5.7); and (b) all other expenses incurred by KSM in connection
with the Golf Course or this Agreement, which expenses were not reasonably anticipated by the parties or
otherwise provided in this Agreement provided that, except for emergency expenditures as described in
Section 2.8(p) below, any such unplanned expense which exceeds Five Thousand Dollars ($5,000.00) must
have prior vsritten approval from the Executive Director, which approval shall not be unreasonably
withheld. Golf Course Expenses shall not include any expenses of KSM's corporate office or the
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compensation of any Key Management Employees as defined in Section 2.12 of this Agreement, except as
otherwise provided in Section 2.11 of this Agreement.
1.15 Golf Course Operations and Maintenance Evaluation Form - The form, attached to this
Agreement as Exhibit "A", to be used to evaluate KSM's adherence to the Golf Course Operations and
Maintenance Standards. The Golf Course Operations and Maintenance Evaluation Form includes a "Golf
Course Clubhouse Audit form". This form may be modified fi'om time to time by mutual written
agreement ofthe Executive Director and KSM's representative identified in section 1.12 and 9.0
1.16 Golf Course Operations and Maintenance Standards - Those written maintenance standards
described in Section 2.25 to be agreed upon by the parties, which may be modified from time to time by
mutual written agreement ofthe Executive Director and KSM's representative identified in Sections 1.12
and 9.0.
1.17 Habitat Preserve Area - As depicted on Exhibit "B" locator map along with legal descriptions on
file with the City Clerk as amended from time to time.
1.18 Hazardous Material - Any solid, liquid, or gaseous substance, chemical, compound, product,
byproduct, waste, or material that is or becomes regulated, defined, or designated by any applicable federal,
state, or local govemmental authority or by any Environmental Law as hazardous, extremely hazardous,
imminently hazardous, dangerous, or toxic, or as a pollutant or contaminant, and shall include, without
limitation, asbestos, polychlorinated biphenyls, and oil, petroleum, petroleum products and petroleum
byproducts.
1.19 Impositions - All taxes and assessments (including without limitation real property taxes and
assessments, possessory interest taxes, and personal property taxes), water, sewer or other similar rents,
rates and charges, levies, license fees, permit fees, inspection fees and other authorization fees and charges,
which at any time may be assessed, levied, confirmed or imposed on the Golf Course or the operation of
the Golf Course.
1.20 Index - The Consumer Price Index for All Urban Consumers for West Region (1982-84 equals 100)
as published by the United States Department of Labor, Bureau of Labor Statistics.
1.21 Insurance Requirements - All requirements of each insurance policy, and all orders, mles,
regulations and other requirements of the Authority applicable to the Golf Course or the operation of the
Golf Course.
1.22 KSM- Kemper Sports Management, Inc. or any successor in interest under this Agreement.
1.23 Legal Requirements - All laws, statutes, ordinances, orders, rules, regulations, permits, licenses,
authorizations, directives and requirements of govemments and govemmental authorities, which now or
hereafter may be applicable to the Golf Course or the operation ofthe Golf Course.
1.24 Management Term - The Management Term shall commence on January 28, 2013 and end on
January 28, 2018.
1.25 Notice of Golf Course Deficiency - The form attached to this Agreement as Exhibit "C" to be used to
notify KSM of Deficiency Items (as that term is defined in Section 2.25).
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1-26 Opening Date - The date the Golf Course is first opened to the public.
1.27 Operating Inventory - Consumable items used in or held in storage for use in the operation ofthe
Golf Course, including scorecards and cart tickets, driving range balls, golf pro shop merchandise, food and
beverage inventory, kitchen supplies, paper and plastic ware, locker room and bathroom supplies, towels,
fuel, cleaning materials, fertilizers, pesticides, seed, maintenance parts and supplies, office supplies, and
other similar items.
L28 Operating Year - An Operating Year shall be a twelve (12) month Fiscal year during the Term of
this Agreement commencing on July 1 and continuing through June 30.
L29 Real Property - As designated in the Legal Descripfion as Exhibit "D".
1.30 Technical Advisory Committee ("TAG") - The advisory group required by the Califomia Coastal
Commission Permit with respect to the Golf Course.
1.31 Termination Date - January 27, 2018.
1.32 Weekends - The period commencing at 12:01 a.m. Friday and ending at 11:59 p.m. on Sunday.
ARTICLE II
GOLF COURSE OPERATIONS AND MANAGEMENT
2.0 Term. This Management Agreement shall commence on January 28, 2013 and terminate on
January 27, 2018 ("Management Term"). This Agreement may be terminated by the Authority, without
penalty or cause, at any time after the 3'^* anniversary of the Agreement if the Authority delivers written
notice to KSM of its intention to terminate. Such notice shall be given at least ninety (90) days prior to
such 3'"'^ anniversary, or one hundred twenty (120) days prior to termination if after the 3'' anniversary. If
such prior written nofice is not given by the Authority in the time period specified above, then this
Agreement shall continue until the Termination Date. At the Termination Date, the Management Term
may be extended for one addifional five (5) year period upon mutual agreement ofthe parties.
2.1 Management of the Golf Course by KSM. The Authority hereby contracts with KSM, during the
Management Term, to manage and operate the Golf Course, pursuant to the terms of this Agreement, and
KSM agrees it shall manage and operate the Golf Course in such manner. Subject to the terms of this
Agreement, and further subject to the approved Annual Plan, KSM shall have authority and responsibility
to: (a) implement the policies and standards for the Golf Course as determined by the Authority; (b)
manage and supervise all day-to-day operations ofthe Golf Course including starting, course marshals, pro
shop, player's lounge, building and course maintenance, security, cart rental, driving range, food and
beverage service, golf instmction, and administration management; (c) subject to Section 2.17, set, from
time to time, greens fees and fees and charges for other uses and items charged to Golf Course customers,
(d) hire, train, and supervise all employees required to carry out KSM's responsibilities, including with
Authority approval, the General Manager, Course Superintendent, and Controller; (e) acquire all goods and
services necessary to carry out KSM's responsibilities; (f) acquire all necessary licenses and permits for the
operation of the Golf Course including those related to food preparation and alcoholic beverages; (g)
manage all course reservations, tee times, and toumaments, including special events or other activities
requested by Authority; (h) manage all marketing and promotional activities and customer service relations;
(i) manage accounting and payroll procedures and functions; and Q) prepare such annual and other plans
and reports as set forth in this Agreement. The Authority agrees that it shall cooperate with KSM to permit
and assist KSM to carry out its duties under this Agreement.
2.2 Authority Financing. KSM acknowledges that Authority has obtained tax-exempt bond financing
("Authority Financing") for constmction ofthe Golf Course. Authority has the right, at any time and from
time to time, to affect a refinancing and refiinding of the Authority Financing in its sole and absolute
discretion. Notwithstanding any authority given in this Agreement to KSM to set fees, charges, and prices,
the Authority Board of Directors shall have the superior authority to set fees, charges, and prices at the Golf
Course, but only if necessary to meet the operating covenants required by the Authority's financing and the
financing documents pertaining thereto. KSM agrees to amend this Agreement at any time and from time
to time, if, in the opinion ofthe Authority's legal counsel, this Agreement must be amended to comply with
laws, regulations, mles, or procedures applicable to the Authority Financing, and any refinancing or
reftinding thereto, including but not limited to those laws, regulations, mles, and procedures applicable to
or promulgated by the Intemal Revenue Service. Authority and KSM shall meet and confer in good faith to
effect such written amendment to this Agreement as necessary to ensure the Agreement is in compliance as
required by the preceding sentence, which amendment(s) shall be affixed as an attachment to this
Agreement; provided, however, that in the event Authority and KSM cannot come to final agreement on
the required amendment(s) necessary to ensure the Agreement is in compliance as required above, either
party shall have the right to terminate this Agreement without penalty upon written notice to the other
party.
ANNUAL PLAN.
2.3 Preparation and ApprovaL Annually on or before April 1 of each year, KSM shall submit to the
Authority the Annual Plan for the Golf Course for the next Operating Year ("Annual Plan"). The Annual
Plan shall include (1) an operating budget containing bona fide good faith estimates of all Golf Course
Expenses for the next Operating Year, including expenditures for (a) property operation and maintenance,
(b) repairs, replacements, and alterations which do not constitute Capital Improvements, (c) Fumishings
and Equipment and Operating Inventory, and (d) advertising, sales, and business promotion, and (2) a
Capital Improvement Plan as described in Section 2.6 and (3) recommendation for all fees and charges as
further described in Sections 2.17-2.18. The Annual Plan shall also include the course maintenance plan,
the marketing and business plan for the Golf Course and hours of operation for the next Operating Year.
The parties agree that they shall use commercially reasonable efforts to limit the increase in total Golf
Course Expenses during the term of this Agreement to the increase in the Index or increases due to
increases in Gross Revenues. Any increase in excess of the increase in the Index shall be thoroughly
documented in the Annual Plan. The Annual Plan shall be subject to the prior written approval of the
Executive Director ofthe Carlsbad Public Financing Authority ("Executive Director"). It is contemplated
by the parties that the Annual Plan will be agreed upon by KSM and the Executive Director not later than
ninety (90) days following delivery ofthe Annual Plan by KSM to the Authority. If the Executive Director
fails to either approve the Annual Plan within said 90-day period or to advise KSM in writing of his/her
objections to the Annual Plan within such period, then the Executive Director shall be deemed to have
disapproved the Annual Plan as submitted.
In the event of a dispute with regard to the Annual Plan, pending the resolution of such dispute, KSM shall
continue to manage and operate the Golf Course in accordance with the standards set forth in this
Agreement at a level of expenditures comparable to those of the preceding Operating Year, subject to
increases in Golf Course Expenses due to increases in Gross Revenues, plus up to an additional two percent
(2%) of such amount. This two percent (2%) shall apply to actual course costs, and shall not include any
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IS
expenditure not authorized as a Golf Course Expense pursuant to this Agreement, nor the Fixed
Management Fee as defined in Section 4.1, nor the Percentage Management Fee defined in Section 4.2.
The Fixed Management Fee shall be subject to the Index adjustment only in the manner described in
Sections 4.1. An executive summary of the Annual Plan shall be reviewed and approved by the Board of
Directors prior to the commencement of each Operating Year.
KSM shall comply, to the extent reasonably and commercially practicable, with the applicable Annual
Plan. However, the Authority agrees that the approved budgets and Annual Plan are intended to be
reasonable estimates, and accordingly, KSM shall be entitled from time to time to revise the budgets and
Annual Plan to cover any expenditures that were unanticipated at the time of preparation ofthe budgets and
Annual Plan but are reasonable and necessary to carry out the provisions of this Agreement; provided,
however, that except as otherwise set forth in this Agreement, KSM shall be required to obtain prior written
consent ofthe Authority, ifthe actual amount expended per calendar month for Golf Course Expenses shall
be greater than two (2%) higher than the amount budgeted for that calendar month in the Annual Plan.
KSM is authorized to take all action reasonably deemed necessary by KSM to implement, perform, or
cause the performance of the items set forth in the approved budgets and Annual Plans. The Authority
acknowledges that the Annual Plan is intended to set forth objectives and goals based upon KSM's
judgment and the facts and circumstances known by KSM at the time of preparation and that KSM has not
made any guarantee or warranty conceming or relating to (i) the Annual Plan, including the budgets, or (ii)
the amounts of Gross Revenues or Golf Course Expenses to be generated or incurred from the operation of
the Golf Course.
2.4 Ouarterly Review of Annual Plan. Every three (3) months, the Executive Director and the General
Manager ofthe Golf Course shall meet and discuss the operating results of the Golf Course, and the parties
shall agree in writing upon any amendments or revisions to the Annual Plan to take into consideration
variables or events that did not exist, or could not be anticipated by KSM or Authority, at the time the
Annual Plan was prepared. The Annual Plan and any material amendments or revisions to the Annual Plan
shall require the approval of the Executive Director, and/or the Board of Directors, which approval shall
not be unreasonably withheld.
CAPITAL EXPENDITURES:
2.5 Capital Improvement Funds. Subject to the availability of funds in the "Golf Course Account" (as
defined in Section 5.0 below), KSM, as provided in Section 5.2 below, shall disburse to Authority monthly
from the Golf Course Account an amount equal to two percent (2%) ("Capital Improvement Fund
Percentage") of that portion ofthe Gross Revenues for the previous month attributed to green fees ("Capital
Improvement Funds"). If available, accmed Capital Improvement Funds shall be disbursed to Authority
within ten (10) days after the delivery to the Executive Director of the monthly profit and loss statements
required by Section 5.6(a) below. In the event there are insufficient funds in the Golf Course Accounts to
pay all or any portion ofthe Capital Improvement Funds for any particular month, then the unpaid Capital
Improvement Funds shall be accmed and paid in the next succeeding month or months when sufficient
funds exist in the Golf Course Account to pay such accmed Capital Improvement Funds. Authority shall
establish and maintain a separate reserve account for the Capital Improvement Funds received pursuant to
this section, and these Capital Improvement Funds shall be used for the purposes described in this
Agreement. The parties hereby acknowledge and agree that the Capital Improvement Funds shall belong to
Authority, and Authority shall have complete control over the Capital Improvement Funds. The parties
hereby agree that prior to each Operating Year, in connection with the preparation and approval of the
"Capital Improvement Plan" as described in Section 2.6 below, the parties shall discuss whether the Capital
Improvement Fund Percentage should be changed. Any decision to change the Capital Improvement Fund
Percentage shall be in the sole discretion of the Executive Director, and in making such decision the
Executive Director shall consider such factors as the amount of Capital Improvement Funds currently
available and the projected capital improvement requirements of the Golf Course. In no event, however,
shall the Capital Improvement Fund Percentage be increased in excess of two percent (2%) except with the
written approval of the Executive Director.
2.6 Capital Improvement Plans. During the Management Term, KSM shall submit on or before April 1
of each year, a "Capital Improvement Plan" for the Golf Course for the next Operating Year, which shall
include KSM's recommendation of Capital Improvement projects for the next Operating Year and the
estimated costs of such Capital Improvement projects.
2.7 Implementation of Capital Improvement Proiects. The parties acknowledge and agree that all
Capital Improvement projects are in Authority's sole control and discretion, and all costs and expenses of
Capital Improvement projects shall be paid from the Capital Improvement Funds or from other Authority
funds (and not from the Golf Course Accounts). The costs and expenses of Capital Improvement projects
shall not be considered Golf Course Expenses. Once approved by the Board, KSM shall be responsible for
the constmction or purchase ofthe Capital Improvements, unless otherwise instmcted by the Authority.
2.8 Responsibilities of KSM. Without in any way limiting KSM's right to manage and operate the Golf
Course in accordance with the terms of this Agreement, KSM shall, in addition to other obligations and
responsibilities set forth in this Agreement, perform the following services, or cause the same to be
performed for the Golf Course, subject to the approved Annual Plan and the other terms and conditions set
forth in this Agreement, and all expenditures of KSM and costs and expenses incurred by KSM in
performing these services, including the "Management Fees" (as defined in Section 4.0), shall be Golf
Course expenses:
(a) Manage and market the Golf Course;
(b) Hire, train and terminate all Golf Course personnel;
(c) Consummate arrangements with concessionaires, licensees, tenants, or other intended users of
the Golf Course;
(d) Negotiate and execute on behalf of the Authority contracts for the fumishing of utilities and
maintenance and other services to the Golf Course, subject to Section 2.22;
(e) Make all repairs, decorations, replacements, additions, revisions, alterations and improvements
to the Golf Course as shall be reasonably necessary for maintenance of the Golf Course in good order,
condition and repair, subject to the terms of this Agreement;
(f) Manage payment of Golf Course operating expenses as identified in the Annual Plan;
(g) Maintain a level of Operating Inventory deemed appropriate by KSM for supplying the needs of
the Golf Course and its customers;
(h) Apply for, and use its best efforts to obtain and maintain, all licenses and permits required of
KSM in connection with the operation and management of the Golf Course; and Authority agrees to
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execute any and all applications and such other documents as shall be reasonably required and to otherwise
cooperate, in all reasonable respects, with KSM in the application for, and obtaining and maintenance of,
such licenses and permits. Upon termination or expiration of this Agreement, KSM shall cooperate in
transferring all licenses, permits and accreditations in the name of KSM to Authority as permitted by law;
(i) Use its best efforts to do, or cause to be done, all such acts and things in and about the Golf
Course as shall be reasonably necessary to comply with all Insurance Requirements and Legal
Requirements, whether or not compliance therewith shall interfere with the use and enjoyment ofthe Golf
Course except for those which are the obligation of the Authority or the Authority's separate contractors.
Notwithstanding the foregoing, the Authority acknowledges and agrees that the Authority or its
constmction contractors shall be responsible for procuring, maintaining and complying with all licenses
and other authorizations relating to design, construction, zoning, erection, installation and similar matters
relating to any construction at the Golf Course. In the event, at any time during the Management Term,
repairs, additions, changes, or corrections in the Golf Course of any nature shall be required by reason of
any Legal Requirements, KSM shall notify the Authority and request the Authority's consent to take all
reasonable steps and to make all reasonable expenditures necessary to repair and correct any such repairs,
additions, changes, or corrections whether or not provisions have been made in the Annual Plan for any
such expenditures, the costs of which shall be Golf Course Expenses. If the Authority withholds such
consent, KSM shall not be liable for any failure ofthe Golf Course to be in compliance with such Legal
Requirements due to the Authority's refiisal to consent;
(j) Pay all Impositions and insurance premiums when due;
(k) Implement a marketing, advertising, and promotional plan for the Golf Course;
(1) Purchase Fumishings and Equipment necessary to operate and maintain the Golf Course in the
manner provided in this Agreement;
(m) Maintain the landscaping within the boundaries of the Golf Course pursuant to the Golf Course
Operations and Maintenance Standards; and
(n) Defend and settle claims, lawsuits, and demands relating to the Golf Course and Golf Course
personnel (as further provided in Section 3.4 below), and retain legal counsel (and pay legal fees and costs)
who under the direction of KSM will represent KSM, and the Golf Course on all questions relating to Legal
Requirements, will defend any claims or actions brought against KSM relating to the Golf Course or Golf
Course personnel, and will institute and defend any and all legal actions or proceedings as shall be
reasonably necessary to collect charges, rent or other income for the Golf Course to dispossess tenants or
other persons in possession from all or any portion of the Golf Course to cancel or terminate any lease,
license or concession agreement on the grounds of default by the tenant, licensee, or concessionaire, or to
contest property taxes. KSM shall notify Authority and its General Counsel of any claims or lawsuits
relating to the Golf Course within two (2) business days after KSM receives notice of such claims or
lawsuits. Any legal fees for outside counsel shall be paid by KSM and charged as a Golf Course Expense
and shall not include any KSM corporate overhead or administrative fee or charge. The Authority's
General Counsel shall have the right to reasonably pre-approve any legal counsel retained by KSM to
defend KSM and the Golf Course in connection with such matters.
1^
For all claims naming the Authority and/or City, KSM shall cooperate with the Authority's General
Counsel/City Attomey who at his discretion may represent the Authority/City or retain any outside counsel
to assist in the representation of the Authority/City as a Golf Course expense.
(o) During the Management Term, KSM's on-site controller shall: (i) maintain all books, records,
and other data associated with the financial activities of the Golf Course, (ii) prepare all operating budgets,
cash flow budgets, and other financial projections and forecasts, and (iii) be responsible for the day-to-day
financial affairs of the Golf Course;
(p) Notwithstanding anything else in this Agreement to the contrary, in the event, at any time
during the Management Term, a condition should exist in, on, or about the Golf Course of an emergency
nature which, in KSM's sole and absolute discretion, requires immediate action to preserve and protect the
Golf Course, to better assure the Golf Course's continued operation, or to protect the Golf Course's
customers, guests, or employees, KSM is authorized to take all steps and to make all reasonable
expenditures necessary to repair and correct any such condition, whether or not provisions have been made
in the applicable Annual Plan for any such expenditures. The Authority shall be notified ofthe need for,
and estimated amount of, any such emergency expenditures as soon as reasonably practical; and
(q) In fulfilling its operational responsibilities hereunder, KSM shall have all rights ordinarily
accorded to a KSM in the ordinary course of business, including, without limitation, the collection of
proceeds from the operation of the Golf Course, the approval and payment of obligations, and the
negotiating and signing of leases and contracts. KSM shall not be obligated to advance any of its own
funds to or for the account ofthe Authority, nor to incur any financial liability, unless the Authority shall
have fumished KSM with fiinds necessary for the full discharge thereof However, if for any reason KSM
shall have advanced funds in payment of any reasonable expense in connection with the maintenance and
operation of the Golf Course, the Authority shall reimburse KSM within a reasonable time upon demand
for the full amount of such payments.
PERSONNEL
2.9 General. Subject to Section 2.1(d), KSM shall employ all of the employees of the Golf Course. KSM
shall recmit, hire, train, discharge, promote and supervise the management staff of the Golf Course (i.e., the
General Manager, the Course Superintendent, and other key personnel), and KSM shall supervise through
the management staff the recruiting, hiring, training, discharge, promotion and work of all other employees
ofthe Golf Course. All employees ofthe Golf Course shall be properly qualified for their positions.
2.10 Pension and Benefit Plans. KSM shall have the right to provide eligible employees of the Golf
Course with pensions and other employee retirement benefits and disability, health and welfare benefits,
and other benefit plans now or hereafter available to employees of other golf courses and country clubs
operated by KSM, and the allocable share of such employee benefits shall be a Golf Course Expense.
2.11 Temporary Assignment of Other KSM Personnel. If the position of General Manager, Course
Superintendent, or other Key Management Employee positions of the Golf Course are not filled for
whatever reason, KSM may temporarily assign to these positions the staff of other golf courses and country
club Golf Courses operated by KSM or other qualified KSM staff; provided, however, that said temporary
assignment shall not exceed ninety (90) days without the written approval of the Executive Director.
During such time as these employees are temporarily assigned to the Golf Course, all such employees will
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be paid a pro-rata share of their regular Employee Compensation equal to the actual time such employees
worked at the Golf Course which shall be a Golf Course Expense and the Fixed Management Fee shall be
increased or decreased accordingly.
2.12 Key Management Employees. The General Manager of the Golf Course shall be responsible for the
day-to-day management and operation of the Golf Course. The name and telephone number (both home
and business) of the General Manager shall be provided, in writing, to the Executive Director and shall be
current at all times. The General Manager shall be reasonably available during normal working hours to
meet with the Executive Director. After normal working hours, the General Manager shall be reasonably
available to appear at the Golf Course if deemed necessary by the Executive Director. The Course
Superintendent for the Golf Course shall be certified by the Golf Course Superintendents Association. The
General Manager for the Golf Course shall be a current Class "A" member in good standing of the
Professional Golf Association or the Ladies Professional Golf Association. The Executive Director shall
have the right to approve the individuals who KSM intends to hire to fill the positions of General Manager,
Golf Course Superintendent, and Controller (regardless of the tities given for such positions by KSM)
(collectively, the "Key Management Employees"), which approval shall not be unreasonably withheld.
2.13 KSM Acknowledgment of Regulatory and Permit Documents: Easements. KSM acknowledges
that it has been provided copies ofthe Regulatory Permits pertaining to the Golf Course property attached
here to as Exhibit E consisting of:
1. State Water Resources Control Board, WDID No. 937C337203, dated 10/17/05;
2. Califomia Department offish and Game, Streambed Alteration Agreement No. 5-122-00, dated
June 30, 2004;
3. United States Army Corps of Engineers Permit No. 972020600-SMJ, dated 1/5/05, modifying
permit No. 972020600-MAT, dated September 30, 2000;
4. Califomia Coastal Commission Coastal Development Permit No. A-6CI1-00-087, Notice of
Acceptance, dated April 25, 2005;
5. City of Carlsbad, Endangered Species Act Incidental Take Permit No. HMP 04-01, dated
December 5, 2004; and
6. San Diego Gas and Electric Company, Letter of Permission for Grading and Constmction of
Improvements, dated June 23, 2005.
2.14 Publicity. Any commercial advertisements, press releases, articles, or other media information using
Authority's or City's name shall be subject to the prior approval of the Executive Director which approval
may be or withheld in the Executive Director's sole and absolute discretion.
2.15 Specific Operating Procedures. In addition to the more general responsibilities of KSM as manager
of the Golf Course as provided in this Article II, KSM shall operate and manage the Golf Course in
accordance with the following operating procedures consistent with the approved budget and Annual Plan:
2.16 Golf Course Hours of Operation. Except upon the occurrence of the events described in Article VIII
of this Agreement, the Golf Course shall be operated on a daily basis all year and shall not be closed on
holidays. The Golf Course shall be kept open during all hours necessary to adequately serve the public
utilizing the Golf Course, subject to the specific conditions of the Conditional Use Permit and except for
instances in which normal maintenance requires temporary closure. The driving range may be open when
the Golf Course is closed, subject to the conditions of the Conditional Use Permit. The inside food and
beverage services of the Golf Course Clubhouse shall be open as determined in the Annual Plan. The
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permitted hours for food and beverage services in the Golf Course Clubhouse restaurant shall be as
provided in the Conditional Use Permit.
FEES AND CHARGES
2.17 Setting of Fees. KSM shall, from time to time, set the amount for fees and charges for services at
the Golf Course, including greens fees (which shall include use of a golf cart). Golf Club rental, and driving
range. All fees, charges, and prices at the Golf Course set by KSM shall be comparative and competitive
with other first class public golf courses in San Diego County and approved by the Executive Director. All
fees and charges shall be set first to ensure coverage of Golf Course Expenses, Management Fees, and debt
service and secondarily, to provide a benefit to residents of Carlsbad. The green fees shall be
recommended in the Annual Plan. KSM acknowledges that Authority intends to obtain public and/or
private financing for constmction of the Golf Course, and that such financing may require Authority to
control the setting of other charges, and prices at the Golf Course in addition to green fees.
2.18 City Use Day. The Authority/City shall have the right to designate a day for its exclusive use of the
Golf Course and all improvements free of charge once a year on a Monday through Thursday only.
2.19 Resident Green Fee Discount. KSM shall establish a "Resident Green Fee Discount," whereby
Carlsbad residents shall receive a discount on green fees. KSM shall recommend the amount of the
resident green fee discount and include the recommended discount in the Annual Plan. KSM shall develop
all necessary mles and procedures for implementing the Resident Green Fee Discount, which rules, and
procedures shall be subject to the prior written approval of the Executive Director. KSM may also
recommend discounted rates for other specified groups.
2.20 Food and Beverage Operations. The Golf Course shall include a restaurant located in the Golf
Course Clubhouse and a snack bar, which shall be operated in accordance with the Conditional Use Permit.
Temporary fixed food stands shall not be installed on the Golf Course except for special events. KSM shall
provide a staffed food service and beverage cart for the service of players on the Golf Course during peak
hours of operation. KSM shall comply with all requirements of state and local law goveming the sale and
distribution of alcoholic beverages. KSM shall obtain and maintain all permits from all govemmental
agencies having jurisdiction for all food and beverage operations at the Golf Course, including holding a
liquor license in the name of KSM or a KSM Affiliate. KSM shall comply with all health law and
regulations as existing or as may be established by the federal, state, county, and city govemmental
agencies. All food service employees shall possess valid food handler cards, and a copy of these cards shall
be maintained in the administrative office at the Golf Course. KSM, for all food and beverage employees,
shall comply with all applicable codes and regulations as relates to tuberculosis and other health and
disease testing - as now or hereafter required by applicable law. Prices of food and beverages sold at the
Golf Course shall be market rate and competitive with prices charged at comparable first class public golf
courses in San Diego County.
2.21 Office Operations. KSM shall employ sufficient administrative staff at the Golf Course to permit
KSM to competentiy perform KSM's obligations under this Agreement. Upon Authority's written request,
KSM shall provide the Executive Director with a written job description for each management position at
the Golf Course. The Executive Director shall keep these job descriptions in strict confidence, subject to
applicable public records disclosure laws. KSM shall maintain at the Golf Course copies of all KSM
corporate policies and procedures, as such may be changed from time to time.
o2/
2.22 Safety and Security. The Golf Course shall comply with all safety regulations of federal, state, and
local govemmental agencies, including without limitation any requirements imposed by Califomia Labor
Code Section 6300 et seq. and regulations promulgated with respect thereto, and applicable federal
occupational, health, and safety laws and regulations. KSM shall take all reasonable actions to protect the
safety of all Golf Course employees and customers. The Golf Course shall contain appropriate security
systems, including video monitoring of cash operations, security alarm systems, motion detection sensors
for after hours control, and locks for the maintenance yard and perimeter gates. The alarm system at the
Golf Course shall be tied into an airtight monitoring station. KSM shall keep for seven (7) days computer
back-up tapes for all accounts payable and accounts receivable information. All records at the Golf Course
shall be kept in fireproof files and made available to the Authority upon request.
2.23 Contracts and Agreements. KSM shall negotiate, consummate, enter into, and perform, on behalf
of Authority, such agreements as KSM may deem necessary or advisable for the fumishing of all food,
beverages, utilities, concessions, entertainment, operating supplies, equipment, repairs and other materials
and services as KSM determines are needed from time to time for the management and operation of the
Golf Course. KSM shall not be obligated to sign any leases or other agreements in KSM's name except for
any employment related agreements, if any, which shall be in KSM's name. Notwithstanding the above,
any contract which exceeds Twenty Five Thousand Dollars ($25,000) in total payments over the term of
such contract or which has a term of over one (1) year shall be negotiated by KSM but provided to
Authority for its approval and signature.
2.24 Alterations to Buildings. KSM shall not make any substantial aherations, additions, or changes to
the exterior appearance or the stmctural nature of the Golf Course Clubhouse, golf pro shop, maintenance
building, or other buildings located at the Golf Course without the prior consent of the Executive Director.
2.25 Operations and Maintenance Standards. The parties acknowledge and agree that the Golf Course
shall be operated and maintained as a first class golf course. As used herein, "first class golf course" shall
mean a golf course comparable to the following golf courses in San Diego County: Torrey Pines - City of
San Diego; The Vineyard - City of Escondido; and Encinitas Ranch - City of Encinitas Califomia, as they
existed on the Effective Date of this Agreement. In addition to all other responsibilities of KSM under this
Agreement, KSM agrees that at all times during the term of this Agreement, the Golf Course shall be
operated and maintained in accordance with the written standards to be agreed upon by Authority and KSM
(the "Golf Course Operations and Maintenance Standards"), which will be consistent with the approved
budget and Annual Plan.
2.26 Authority Inspection and Evaluation. At any time during the term of this Agreement, the Authority
Executive Director, or his designee shall inspect some or all of the Golf Course for purposes of compliance
with the Golf Course Operations and Maintenance Standards and this Section. In conducting such
inspection and evaluation, the Authority Executive Director, or his designee shall complete the Golf Course
Operations and Maintenance Evaluation Form, or applicable portions thereof, and shall promptiy thereafter
provide KSM a copy of the completed form or applicable portion thereof Authority agrees that the
Executive Director shall act reasonably and in good faith in making the determination of whether the Golf
Course Operations and Maintenance Standards, or applicable portion thereof, have been met. As set forth in
Exhibit "A", the Golf Course Operations and Maintenance components shall be rated as "Acceptable,"
"Needs Improvement," and "Unacceptable."
Notwithstanding KSM's obligation to correct Deficiency Items as set forth below, KSM shall be in
compliance with the Golf Course Operations and Maintenance Standards unless an overall rating is
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determined to be "Unacceptable." The Executive Director's rating of an item as "Unacceptable" or "Needs
Improvement" shall, upon KSM's receipt ofthe Golf Course Operations and Maintenance Evaluation Form,
constitute a Notice of Golf Course Deficiency with respect to the deficient item(s). Within one (1) week
after receipt ofthe Golf Course Operations and Maintenance Evaluation Form, the Executive Director and
General Manager ofthe Golf Course, and the Golf Course Superintendent, if necessary, shall meet to
review the Deficiency Item(s), including the corrective actions KSM intends to take to correct the
Deficiency Item(s). KSM shall complete the "Statement of Corrective Action", detailing the steps it
intends to take to correct each Deficiency Item and the time schedule for completion of corrective action.
The proposed corrective action and the time schedule shall be reasonably approved by the Executive
Director. When a Deficient Item has been satisfactorily corrected in the judgment of the Executive
Director, the Executive Director and the General Manager of the Golf Course shall each sign the Notice
acknowledging completion ofthe corrective action. The cost for correcting any Deficiency Item shall be a
Golf Course Expense.
2.27 Results of KSM^ Failure to Take Corrective Action. Except as provided in Section 2.27 below, if
KSM obtains an overall rating of "Unacceptable", or fails to take action to timely correct any Deficiency
Item(s), the following shall occur:
(a) If there are two (2) consecutive months in which the Golf Course Operations and Maintenance
Evaluation Form indicates that KSM's management of the Golf Course has obtained an overall rating of
"Unacceptable," the Authority shall be entitied to deduct from the Performance Evaluation Deposit
described in Section 2.29, the amount of Five Thousand Dollars ($5,000) per month, and such deduction
amount shall be retroactive to the first (1st) ofthe two (2) consecutive months and shall continue until
KSM's management ofthe Golf Course achieves an overall rating of "Acceptable" as indicated on the Golf
Course Maintenance Evaluation Form. In addition, any failure to achieve an overall rating of "Acceptable"
for (i) any four (4) months within any single operating year, or (ii) any three (3) consecutive months, shall
be considered a material breach of this Agreement entitiing the Authority to terminate this Agreement
regardless ofthe deductions that have been made from the Performance Evaluation Deposit.
(b) The Authority shall further be entitled to deduct from the Performance Evaluation Deposit the
amount of Two Thousand Dollars ($2,000) per month for each Deficiency Item that is not timely corrected.
Such deduction shall be imposed as of the date the Deficiency Item was to have been corrected and shall
continue each month thereafter until such Deficiency Item has been corrected as indicated by the signature
of the Executive Director and General Manager of the Golf Course on the Notice of Golf Course
Deficiency as described in Section 2.25. The deductions provided for in this Section shall not be a Golf
Course Expense.
2.28 Exclusions from Imposition of Deductions. The following items shall be considered exclusions for
the purpose of determining whether there have been two (2) consecutive months with overall ratings of
"Unacceptable" and for the purpose of determining whether an outstanding Deficiency Item has been
timely corrected: (a) any outstanding Deficiency Item that KSM is diligently and timely correcting in
accordance with the time schedule jointly agreed to by the Executive Director and the General Manager of
the Golf Course as provided in Section 2.25; (b) any Deficiency Item in which the correction is considered
a Capital Improvement, but only if and to the extent KSM, in light of its expertise and experience as a
manager of first class golf courses, could not have taken reasonable measures to prevent or mitigate the
Deficiency Item from occurring; (c) any Deficiency Item that KSM is unable to correct because of, or any
rating of "Unacceptable" caused by, the occurrence of a "Force Majeure Event" (as defined in Section 8.2
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of this Agreement) but only to the extent KSM, in light of its expertise and experience as a manager of first
class golf courses, could not have taken reasonable measures to prevent or mitigate the Force Majeure
Event; and (d) any Deficiency Item that KSM is unable to correct due to, or any rating of "Unacceptable"
caused by, the Authority's failure to provide sufficient funds to effect such correction.
2.29 Acknowledgement of Parties Concerning Deductions.
THE PARTIES HERETO AGREE THAT THE $5,000.00 PER MONTH DEDUCTIONS FROM THE
PERFORMANCE EVALUATION DEPOSIT REFERENCED ABOVE CONSTITUTE A REASONABLE
APPROXIMATION OF THE ACTUAL DAMAGES THAT THE AUTHORITY WOULD SUFFER DUE
TO A FAILURE BY KSM TO ADHERE TO THE REQUIRED PERFORMANCE LEVEL,
CONSIDERING ALL OF THE CIRCUMSTANCES EXISTENJG ON THE EFFECTIVE DATE OF THIS
AGREEMENT, INCLUDING THE RELATIONSHIP OF THE CHARGES TO THE RANGE OF HARM
TO THE AUTHORITY THAT REASONABLY COULD BE ANTICIPATED AND THE
ANTICIPATION THAT PROOF OF ACTUAL DAMAGES WOULD BE COSTLY OR
INCONVENIENT. THE AUTHORITY OF THE AUTHORITY TO EFFECT SUCH DEDUCTIONS
SHALL NOT LIMIT THE AUTHORITY'S TERMINATION RIGHTS AS SET FORTH IN THIS
AGREEMENT. IN PLACING its INITIALS AT THE PLACES PROVIDED HEREIN BELOW, EACH
PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE
AND THE FACT THAT EACH PARTY HAS BEEN REPRESENTED BY COUNSEL WHO HAS
EXPLAINED THE CONSEQUENCES OF THE DEDUCTION PROVISIONS AT OR PRIOR TO THE
TIME EACH EXECUTED THIS.
2.30 KSM Performance Evaluation Deposit. Not later than commencement of the Management Term,
and as a condition to commencement ofthe Management Term, KSM shall deposit with the Authority in
cash the sum of Twenty-Five Thousand Dollars ($25,000) as security for the performance of KSM's
obligations pursuant to Section 2.26 ("Performance Evaluation Deposit"). The Authority shall place the
Performance Evaluation Deposit in a separate interest-bearing account and such fimds shall not be
intermingled with any other funds, nor subject to withdrawal or allocation except as specifically set forth in
Section 2.26. The Performance Evaluation Deposit shall not be a Golf Course Expense. In the event of
failure of KSM to timely correct Deficiency Items as provided in Section 2.26, the Executive Director shall
have the authority to deduct from the Performance Evaluation Deposit the amounts set forth in Section
2.26. In the event the Authority is required to make deductions from the Performance Evaluation Deposit,
KSM shall promptly, upon written request therefore by the Authority, submit such additional cash amounts
to the Authority as is required in order to maintain the Performance Evaluation Deposit at the Twenty-Five
Thousand Dollar ($25,000) level. Upon expiration or termination of this Agreement for any reason, all of
the Performance Evaluation Deposit, along with all accmed interest, shall be retumed to KSM within sixty
(60) days after such expiration or termination.
2.31 KSM Purchases. In connection with any purchases made by KSM or an Affiliate of KSM for the
account of the Authority, it is understood that KSM or such Affiliate may perform services as a
representative ofthe manufacturer to secure the benefits of lower costs, and that any resulting savings shall
be passed on to the Authority, including representatives' fees. In addition, all trade discounts, rebates and
refunds pertaining directly to purchases for the Golf Course shall accme to the benefit ofthe Authority. If
any purchases of goods or services for the Golf Course are made from or through an Affiliate of KSM, that
shall be disclosed to the Authority in the Monthly Report, and the charges to the Golf Course for such
goods or services shall not exceed the lesser ofthe cost actually paid or the market prices for such goods
and services.
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ARTICLE III
INSURANCE REQUIREMENTS AND INDEMNITY
3.0 Amounts of Insurance and coverage.
For the duration of this Agreement, KSM shall procure and maintain, at a minimum, the following types
and amounts oflnsurance and coverage as described in this Article III, all as a Golf Course Expense:
3.1 Types of Coverage:
(a) Workers* Compensation. Coverage in compliance with the Workers' Compensation Laws of
the State of Califomia providing all statutory benefits and covering all Golf Course employees who are
KSM employees.
(b) Commercial General Liability.
(i) Coverage shall include all premises and operations, including but not limited to, bodily
injury, property damage, personal injury, liquor liability, independent contractors, products and
completed operations and contractual liability. The applicable limits of liability shall be the
minimum combined single limit of $10,000,000 per occurrence.
(ii) The Authority, and its officers, officials, employees, agents, and volunteers, and the
City of Carlsbad, its officers, officials, employees, agents and volunteers, and any other parties to
which the Authority or City is required to have named as additional insured on insurance related to
the Golf Course (provided that such parties are identified in writing to KSM), shall be named as an
additional insured as respects liability arising out of work or operations performed by or on behalf
of KSM.
(c) Automobile Liability and Garage Keener^s Liability. Automobile Liability coverage shall
apply to all automobiles, tmcks and other motor vehicles utilized or controlled by KSM in connection with
the Agreement, and shall include all ovmed, hired and non-ovmed vehicles in the amount of $1,000,000
combined single limit per occurrence.
KSM will maintain Garagekeepers Liability protection in the amount of $900,000 for customers'
automobiles, subject to policy deductibles acceptable to the Authority.
(d) Property Insurance. Property Insurance covering loss or damages to the buildings, structures
or other improvements, contents, equipment and supplies on a replacement cost per occurrence basis
(except for golf carts that are over five (5) years old shall be insured on an actual cost value basis) for "all
risk", including specifically irrigation and/or sprinkler system leakage damage, vandalism and malicious
mischief The Authority shall provide KSM with the appropriate written specifications for all such
property to be insured under such policy. The Authority must notify KSM in writing ifthe Authority wants
coverage for flood, earthquake or wind damage or else this damage shall be excluded from coverage.
(e) Direct and Indirect Loss of Earnings. Business Interruption, Loss of Income and Extra
Expense Insurance in such amounts as will reimburse Authority for direct and indirect loss of eamings
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attributable to the annual value of lost business in connection with insured physical damage. Such
coverage shall be on an "all risk" basis with Authority named as the loss payee.
(f) Fidelity Bond. Coverage shall apply to all KSM employees who may handle funds or property
in connection with the Golf Course and shall be in an amount not less than $300,000.
(g) Umbrella or Excess Liability Coverage. The coverage required above may be satisfied
through a combination of primary and umbrella or excess liability coverage.
3.2 Other Insurance Provisions:
(a) All insurance as is afforded under this Agreement shall be primary and without right of
contribution from any other policies that are carried or are self-insured by the Authority or by any
Additional Insured with respect to their interest in the Golf Course. Further, such insurance shall expressly
provide that all the provisions thereof, except limits of liability, shall operate in the same manner as if there
were a separate policy covering each insured.
(b) Authority and/or City shall be named as additional insureds on all policies on which each is not
named as a primary insured to the extent allowed by law.
(c) Within ten (10) business days after execution of this Agreement, KSM will ftimish certificates
of insurance and endorsements to Authority evidencing compliance with the insurance requirements in this
Agreement. Authority has the right to review certified policies as reasonably necessary. Each certificate
and endorsement shall be subject to reasonable approval by Authority and shall provide that such policy
shall not be subject to material alteration to the detriment of Authority or KSM or cancellation without
thirty (30) days' notice in writing to be delivered by registered mail to Authority. Should any policy expire
or be canceled before the expiration of this Agreement and KSM fail to immediately procure other
insurance as specified. Authority reserves the right, but shall have no obligation, to procure such insurance.
Certificates and endorsements will be ftimished per the Notice requirements in Section 9.2.
(d) Insurance required under this Agreement shall be maintained with Califomia admitted insurers
that carry a minimum Best's Rating of A-VII. If a carrier is non-admitted, a minimum Best's Rating of A-
X shall be required. Coverage shall be from a surety or insurance company reasonably acceptable to
Authority.
3.3 Insurance Maintained by KSM. The parties acknowledge and understand that as of the Effective
Date the following applies to insurance maintained by KSM: (a) Five Thousand Dollars ($5000.00)
deductible per occurrence for property damage insurance, (b) ZERO Dollars ($0.00) self-insured retention
per occurrence for commercial general liability insurance and automobile liability insurance and [garage
keeper's liability], and (c) ZERO Dollars ($0.00) participation in loss limits (which is comparable to self-
insurance) per accident for workers compensation insurance. Authority understands and agrees that with
respect to all policies oflnsurance required under Sections 3.1, 3.2 and 3.3 the portion of any claim, loss, or
damage subject to a deductible amount or a self-insurance or self-assumption amount shall be a Golf
Course Expense. KSM shall notify Authority in writing at least thirty (30) days prior to any increase in the
deductible amount or self-insured or self-assumed amounts for the insurance coverage maintained by KSM
under this Section 3.3. The Executive Director shall have the right to approve an increase in the amount of
any deductible.
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3.4 Handling of Claims. With the exception of claims naming the Authority and/or the City, which in the
sole discretion of the General Counsel for the Authority may be handled by the General Counsel/City
Attomey, KSM (or its insurers) shall be responsible for handling all claims, demands, and lawsuits for any
losses, damages, liability, and expenses (including without limitation personal injury and property damage
claims) arising out of the operation and management of the Golf Course ("Claims"), whether or not such
Claims are covered by the insurance required under Section 3.1. Handling such Claims shall include
without limitation responding to such Claims, investigating such Claims, retaining outside legal counsel to
defend such Claims, settiing such Claims, and paying any losses, damages and expenses relating to such
Claims. All costs and expenses, including attomeys' fees relating to the handling of such Claims as set forth
in the preceding sentence, (including employment related lawsuits), shall be a Golf Course Expense,
subject to KSM's obligations to indemnify Authority/City pursuant to Section 3.5(a).
INDEMNITIES.
3.5 (a) KSM's Indemnity. KSM agrees to defend (with legal counsel reasonably satisfactory to the
Authority's General Counsel/City Attomey), indemnify and hold harmless Authority and City and
Authority's and City's officers, officials, members, employees, agents, representatives, and volunteers from
and against any and all claims, demands, actions, lawsuits, proceedings, damages, liabilities, judgments,
penalties, fines, expert witness fees, attomeys' fees, costs, and expenses, which resuhs from or is connected
with one or more of the following:
(i) Any act or omission by KSM or any shareholder, director, officer, or employee of KSM in
connection with KSM's performance under this Agreement that constitutes negligence or willful
misconduct; or
(ii) Any action taken by KSM relating to the Golf Course (i) that is expressly prohibited by this
Agreement, or (ii) that is not within the scope of KSM's duties under this Agreement, or (iii) that is not
within KSM's delegated authority under this Agreement.
KSM's defense and indemnification obligations under this Section shall not apply to (i) any acts or
omissions taken either at the specific written direction or written approval of the Authority, or (ii) the use
by KSM of Golf Course trade names, trademarks, logos or other intellectual property used in connection
with the Golf Course, or (ii) claims arising out of the sole negligence or willful misconduct of Authority,
City, or their officers, officials, members, employees, agents, representatives or volunteers.
(b) SurvivaL The defense and indemnification obligations of KSM contained in this Section 3.5
shall survive the expiration or termination of this Agreement for any reason.
3.6 Compliance with Environmental Law. In performing its responsibilities under this Agreement,
KSM shall comply with all federal state, and local laws and regulations pertaining to the storage, use, and
disposal of "hazardous or toxic wastes, substances, or materials" as defined by applicable law.
3.7 Environmental Remediation. Throughout the Management Term, if KSM becomes aware of the
presence of any Hazardous Material in a quantity sufficient to require remediation or reporting under any
Environmental Law in, on or under the Golf Course or if KSM, Authority, the Golf Course, City or the
Golf Course becomes subject to any order of any federal, state or local agency to investigate, remove,
remediate, repair, close, detoxify, decontaminate or otherwise clean up the Golf Course, KSM shall, at
Authority's sole expense, use all commercially reasonable efforts to carry out and complete any required
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investigation, removal, remediation, repair, closure, detoxification, decontamination or other cleanup ofthe
Golf Course; provided, that such remediation activities shall be at KSM's expense if such activities are
required as a direct consequence of Hazardous Material being present in, on or under the Golf Course as a
resuh of negligent actions or willful misconduct of KSM, its agents, contractors or employees.
ARTICLE IV
KSM FEES DURING MANAGEMENT TERM: AVAILABLE FUNDS.
4.0 Forms of KSM Compensation. KSM shall receive as compensation for its services during the
Management Term, the following: (i) a fixed management fee (the "Fixed Management Fee"); and (ii) a
percentage management fee (the "Percentage Management Fee") (the Fixed Management Fee and the
Percentage Management Fee are collectively referred to hereinafter as the "Management Fees"). The
Management Fees are further defined below.
4.1 Fixed Management Fee. During the Management Term, KSM shall receive from Authority a Fixed
Management Fee in the annual amount of One Hundred Twenty Five Thousand Dollars ($125,000) (plus
any annual adjustments as provided herein and amounts for the salaries of Key Management Employees as
defined in Section 2.12 of this Agreement). The annual Fixed Management Fee shall be payable in twelve
monthly installments, payable in advance on the first day of the month for which such installment pertains.
(Such Fixed Management Fee shall be prorated for any partial calendar months occurring during the
Management Term.) The Fixed Management Fee shall be increased annually on January 1 of each
Operating Year (the "Adjustment Date") in accordance with the percentage increase, if any, in the Index for
the month of October immediately preceding the Adjustment Date as compared to the Index for the like
month ofthe previous year. The Fixed Management Fee may also be increased or decreased by mutual
agreement of the parties during the term of this Agreement to reflect adjustments in Key Management
Employee salaries. In no event, however, shall the Fixed Management Fee, as such amount may be
increased by any increase in the Index, be adjusted dovmward to reflect a percentage decrease in the Index.
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4.2 Percentage Management Fee. During the Management Term, KSM shall also receive from
Authority, as Percentage Management Fee, two percent (2%) of that portion of gross revenues between
$5,000,000 and 5,500,000, 5% of revenues between $5,500,001 and $6,500,000 and 10% of revenues in
excess of $6,500,000. The Percentage Management Fee amount shall not exceed the Fixed Management
Fee.
For example, if the gross revenues for a year were $7 million, KSM would receive a Fixed Management
Fee of $125,000 (plus 2% of $500,000 = $10,000 and 5% ofthe next $1,000,000 = $50,000) and 10% of
the amount exceeding 6,500,000 = $50,000) for a total of $110,000. The viable management fee is capped
at the amount ofthe annual fixed management fee, or $125,000 in the first year. In any of these examples
or under any scenario, the salaries ofthe Key Employees shall be added to the $125,000 for the total Fixed
Management Fee, but they shall not be included for purposes of calculation of the Percentage Management
Fee.
If applicable, the Percentage Management Fee shall be paid to KSM, annually in arrears within ten (10)
days following the delivery to the Executive Director of the Operating Year profit and loss statement
required by Section 5.6 below. Any Percentage Management Fee owing as of the expiration or earlier
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termination of this Agreement shall be payable concurrently with the delivery to the Executive Director of
the final profit and loss statement.
4.3 Gross Revenues Defined. For the purposes of this Agreement, the term "Gross Revenues" means,
except as provided below, all money received as a resuh of the operation of the Golf Course and the sale of
goods and services at the Golf Course, determined on an accmal basis in accordance with generally
accepted accounting principles consistently applied. By way of example, and without limitation. Gross
Revenues shall include all green fees; rental fees for golf carts, golf clubs and bags, and other rental items;
bag storage fees; range balls; reservation fees; fees for golf handicap service; rental and concession
payments; revenue generated from space rentals and from meetings, banquets, parties, receptions,
toumaments, and other group gatherings; golf instmction fees; revenues from golf schools; and proceeds
from business intermption insurance. Gross Revenues shall be reduced by any cash refunds or credits
allowed on retums by customers.
Gross Revenues shall not include the following:
(a) Sales taxes, excise taxes, gross receipts taxes and other similar taxes now or later imposed upon
the sale of food, beverages, merchandise or services and paid to the appropriate taxing authority, whether
added to or included in the selling price;
(b) Those fees charged by a golf professional functioning as an independent contractor for the
teaching of golf lessons and instmction which are not paid by the golf professional to the Golf Course
operation;
(c) Receipts in the form of refunds from, or the value of merchandise, supplies or equipment
retumed to, shippers, suppliers or manufacturers;
(d) The amount of any gratuities paid or given by customers to Golf Course employees, or service
charges added to customer billings, which represent gratuities to Golf Course employees;
(e) Gross receipts received by licensees or concessionaires, except to the extent any portion of such
receipts is received by the Golf Course;
(f) Proceeds oflnsurance other than business intermption insurance or similar types oflnsurance;
(g) Receipts from public telephones and vending machines, except to the extent of commissions
paid to KSM or Authority;
(h) Proceeds of any borrowings by KSM or Authority;
(i) Any amount received by KSM in connection with any claim, demand, or lawsuit, except when
such amount is for interruption or loss of Golf Course business or;
(j) Any additional funds provided by the Authority for, or paid by the Authority for, any Golf
Course purpose.
(k) Interest eamings on any Golf Course funds.
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ARTICLE V
ACCOUNTS: WORKING FUNDS: DISBURSEMENT OF
FUNDS; RECORDS AND REPORTS: GOLF COURSE EXPENSES
5.0 Golf Course Accounts. KSM shall use the established bank accounts for the Golf Course. Individuals
designated and approved in writing by the Authority as well as City employees designated in writing by the
Authority shall be signatories on the accounts, and KSM will not change the signatories of such accounts or
close such accounts without the prior v^itten consent of the Authority. The Authority shall not close the
accounts without ten (10) days written notice to KSM. KSM shall deposit in the Golf Course Accounts all
monies received from the operation ofthe Golf Course. Any interest earned on monies in the Golf Course
Accounts shall be the property of the Golf Course. The fiinds in the Golf Course Accounts shall be
disbursed by KSM for the purposes set forth in Section 5.1 below. Notwithstanding the provisions ofthe
foregoing sentence, KSM shall be entitled to maintain funds in reasonable amounts in "cash register banks"
or in petty cash fiinds at the Golf Course. No later than fifteen (15) days after the Effective Date (and in
any event, prior to KSM's incurrence of any Golf Course Expenses), the Authority shall fund for deposit
into the Golf Course Accounts, Advances equal to one (1) month's estimated Golf Course Expenses
(including payroll) equal to the highest monthly operating budget identified in the current approved Annual
Plan (the "Operating Expense Minimum"). The Authority shall maintain the Operating Expense Minimum
in the Golf Course Accounts at all times. KSM shall be responsible for the payment of Golf Course
Expenses as incurred in accordance with the monthly operating budgets set forth in the approved Annual
Plan directly from the Golf Course Accounts, but only to the extent funds have been made available by the
Authority. KSM shall provide Authority with statements informing Authority of the amounts needed in the
Golf Course Accounts in order to pay operating expenses and payroll and Authority shall make sure that
the Golf Course Accounts contain such needed amounts before they become due and payable. Authority
may not offset amounts needed for payment of operating expenses and payroll against the Operating
Expense Minimum, as the Operating Expense Minimum shall be available solely for payment by KSM of
unanticipated Golf Course Expenses. KSM shall have no liability for, and shall not be obliged to process
or otherwise address, any and all expenses ofthe Golf Course incurred prior to the Effective Date. All Golf
Course funds held by KSM, whether the Advances or monies held by KSM in "cash register banks" or
petty cash funds at the Golf Course, shall be owned and controlled by The Authority.
5.1 Disbursements from Golf Course Accounts. From the Golf Course Accounts (or, if appropriate,
from "cash register banks" or petty cash fimds available at the Golf Course), KSM is authorized to pay the
following:
(a) Golf Course Expenses as and when incurred; provided, however, that (1) the amount disbursed
shall constitute a Golf Course Expense, and (2) KSM shall provide the Executive Director, within ten (10)
days following the end of each calendar month, an accounting delineating the Golf Course Expenses
disbursed from the Golf Course Accounts for such preceding calendar month (e.g., accounting due not later
than April 10 covering the immediately preceding month of March);
(b) The Fixed Management Fee; provided, however, that such disbursement/payment to KSM shall
be paid in accordance with the terms of Section 4.1;
(c) The Percentage Management Fee, if applicable; provided, however, that
(1) Such disbursement/payment to KSM shall be paid in arrears on not more than an annual
basis pursuant to Section 4.2, and
(2) KSM shall provide the Executive Director, within ten (10) days following the end ofthe
Operating Year, an accounting delineating the calculation of the Percentage Management Fee for
the annual period for which the Percentage Management Fee is disbursed/paid to KSM. The
Percentage Management Fee shall be adjusted if necessary to agree with the audit.
(d) All accmed (but undisbursed) Capital Improvement Funds as provided in Section 2.5;
(e) Amounts needed to maintain the Operating Expense Minimum; and
(f) The Available Funds payable to the Authority pursuant to Section 5.2.
KSM shall maintain at all times, in accordance with the Annual Plan, sufficient funds in the Golf Course
Account to satisfy the daily working capital needs ofthe Golf Course, KSM shall only disburse fiinds from
the Golf Course Accounts to pay accmed Capital Improvement Funds when there are sufficient fiinds
available in the Golf Course Account to satisfy the daily working capital needs ofthe Golf Course.
In the event Golf Course gross revenues are insufficient to pay the amounts set forth in the foregoing
subparagraphs (a), (b), and (c). Authority, after reviewing Golf Course accounts and confirming the
insufficiency of Golf Course gross revenues to meet the obligations to pay (a), (b), and (c) above, shall
remit to KSM such funds as necessary for (a), (b), and (c) to be paid.
5.2 Available Funds. If after payment ofthe Golf Course Expenses, the Fixed Management Fee, and the
Percentage Management Fee (if applicable), maintenance of the Operating Expense Minimum, and all
accmed Capital Improvement Funds, then any excess ftinds in the Golf Course Accounts "Available
Funds" shall be disbursed by KSM to Authority. The Available Funds shall be disbursed to Authority
monthly at the same time as the monthly profit and loss statements required by Section 5.6 or within 20
days of month end, whichever occurs first.
5.3 Remaining Funds. Upon the expiration or earlier termination of this Agreement, all funds remaining
in the Golf Course Accounts, after payment ofthe Golf Course Expenses, Fixed Management Fee, and the
Percentage Management Fee (if applicable), shall be disbursed by KSM to Authority within ten (10) days
after KSM delivers to the Authority the final profit and loss statement or within thirty (30) days of the
Termination date, whichever occurs earlier.
5.4 Books and Records. KSM shall keep full and accurate books of account and such other records as are
necessary to reflect the resuhs ofthe operation ofthe Golf Course. For this purpose, Authority agrees it will
make available to KSM, or KSM's representatives, all books and records in Authority's possession relating
to the Golf Course, including Golf Course construction plans and specifications and as-buih drawings and
constmction records. All books and records for the Golf Course shall be located at the Golf Course. All
accounting records shall be maintained in accordance with generally accepted accounting principles and
shall be maintained on an accmal basis. All such books, records, and reports shall be maintained separately
from other facilities operated by KSM. KSM agrees to maintain reasonable and necessary accounting,
operating, and administrative controls relating to the financial aspects of the Golf Course and such controls
shall provide checks and balances designed to protect the Golf Course, KSM, and Authority. The cash
registers used by KSM shall be approved by the Executive Director. KSM shall surrender all on-site books
and records to the Authority upon the expiration or earlier termination of this Agreement. The Authority
shall have the right to inspect and audit the Golf Course books and records as provided in Section 5.5
below.
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5.5 Inspection. The Authority or hs authorized agents, auditors, or representatives shall have the right
during normal business hours to review, inspect, audh, and copy the books, records, invoices, deposh
receipts, canceled checks, and other accounting and financial information maintained by KSM in
connection with the operation of the Golf Course. All such books and records shall be made available to
Authority at the Golf Course unless Authority and KSM agree upon another location. The Authority shall
have the right to retain an independent accounting firm to audit the books and records of the Golf Course
the cost of which shall be a Golf Course Expense and included in the Annual Plans. Such inspection right
shall not extend to any inspection of non-Golf Course records at KSM's corporate office.
5.6 Reports to Authority. KSM shall deliver to Authority the following financial statements, in a form
reasonably acceptable to Authority:
(a) Within twenty (20) calendar days after the end of each calendar month, a profit and loss
statement showing the results of operation of the Golf Course for such month and for the Operating Year to
date, which statement shall include sufficient detail to reflect all Gross Revenues, Cost of Sales, Fixed
Management Fee, Percentage Management Fee (if applicable), and Capital Improvement Funds; and
(b) Within sixty (60) calendar days after the end of each Operating Year, a profit and loss statement,
set of financial statements in a form reasonably acceptable to the Executive Director, including a balance
sheet and income statements, showing the results of operation of the Golf Course for such Operating Year
which statement shall include sufficient detail to refiect all Gross Revenues, Fixed Management Fee,
Percentage Management Fee (if applicable), and Capital Improvement Funds. If requested by Authority,
these financial statements shall be certified by an independent certified public accountant acceptable to
Authority, the cost of which shall be a Golf Course Expense and included in the Annual Plans.
5.7 Golf Course Expenses. "Golf Course Expenses" shall include all operating expenses of the Golf
Course incurred or paid on behalf of the Authority during the Management Term as approved by the
Authority in the Annual Plan or otherwise, computed on an accmal basis, including, but not limited to, the
following items:
(a) Salaries, wages, employee benefits, and payroll expenses, including ADP fees, payroll taxes.
Golf Course profit sharing programs, and insurance for all employees employed on-site in the direct
operation ofthe Golf Course (except for the Key Management Employees as defined in Section 2.12 of this
Agreement), excluding, however, service charges, which are defined as percentage gratuities added to
billings and paid to employees (collectively, the "Gross Payroll");
(b) Marketing-, advertising, and promotional expenses;
(c) Purchase and replacement, as necessary, of inventories of maintenance parts and supplies, food
stores and bar supplies;
(d) Purchase and replacement, as necessary, of silver, chinaware, glassware, cooking utensils, and
other similar hems of equipment;
(e) Purchase and replacement, as necessary, of office supplies, computers, printers, facsimile
machines, photocopiers, postage, printing, routine office expenses, and accounting services incurred for the
on-site operation of the Golf Course;
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(f) The costs of IT third party consultants and other third party consultants utilized for the Golf
Course;
(g) Reasonable travel expenses of on-site employees only incurred exclusively in connection with
the business of the Golf Course;
(h) Accmal of a reserve for insurance (including workers' compensation) each month in an
amount or at a rate that is sufficient to pay such insurance premiums when they become due and payable;
(i) Insurance premiums to the extent not provided for in the reserve established therefor;
(j) Auditing, accounting costs. Golf Course computer fees, and legal fees as approved by the
General Counsel for the Authority, incurred in respect of the operation of the Golf Course, including any
reasonable financial management and reasonable accounting fees paid to third party accounting firms, if
included in the Operating Budgets;
(k) Costs incurred for utilities, including, but not limited to, all electric, gas, and water costs, and
any other private utility charges incurred in connection with the operation ofthe Golf Course;
(1) Ordinary maintenance and repairs, exclusive of any capital improvements or capital
replacements, which are hereby excluded;
(m) All incidental expenses, as set forth in the approved Annual Plan, including those incurred by
KSM in providing services under the terms of this Agreement and reasonable travel for employees
employed on-site at the Golf Course while engaged in performing the obligations of KSM hereunder, air
express, costs of recmitment (including applicable agent's fee), and other incidental expenses included in
the Annual Plan; and
(n) All other customary and reasonable expenses incurred in the operation of the Golf Course in
accordance with the Annual Plan.
5.8 Payroll. The parties acknowledge that as of the date of this Agreement, the method used by KSM to
administer the payroll for its employees employed at golf courses it manages is to have the bank processing
payroll to automatically withdraw the amount of the payroll payment from the Payroll Expense Account.
The processing bank shall notify KSM of the amount of the payroll payment prior to the date of such
payroll payment.
5.9 KSM Accounting Software. The parties acknowledge and understand if the accounting software to
be used at the Golf Course is ovmed or licensed by KSM, and the Authority shall have no rights or interests
in such software. Upon the expiration or earlier termination of this Agreement, all such accounting
software shall be removed from the Golf Course by KSM.
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ARTICLE VI
TERMINATION RIGHTS.
6.0 Termination by Authority. In addition to any other rights of the Authority to terminate this
Agreement that are set forth in this Agreement, the Authority shall also have the right to terminate this
Agreement upon the occurrence of any of the following events:
(a) KSM fails to keep, observe or perform any material covenant, agreement, term or provision of
this Agreement to be kept, observed or performed by KSM, and such defauh continues for a period of thirty
(30) days after written notice of such defauh by Authority to KSM; or
(b) (i) KSM applies for or consents to the appointment of a receiver, tmstee or liquidator of KSM
or of all or a substantial part of hs assets; (ii) KSM files a voluntary petition in bankmptcy or commences a
proceeding seeking reorganization, liquidation, or an arrangement with creditors; (iii) KSM files an answer
admitting the material allegations of a bankmptcy petition reorganization proceeding, or insolvency
proceeding filed against KSM; (iv) KSM admits in writing hs inability to pay hs debts as they come due;
(v) KSM makes a general assignment for the benefit of creditors; or (vi) an order, judgment or decree is
entered by a court of competent jurisdiction, on the application of a creditor, adjudicating KSM a bankmpt
or insolvent or approving a petition seeking reorganization of KSM or appointing a receiver, tmstee or
liquidator of KSM or of all or a substantial part of hs assets, and such order, judgment or decree continues
unstated and in effect for any period of sixty (60) consecutive days; or
(c) If, following commencement of constmction, the Authority determines in hs sole and absolute
discretion not to develop the Golf Course, and the Golf Course in not developed by the Authority, the City
or any of their Affiliates or any third party; or following completion of constmction ofthe Golf Course, not
to open or operate the Golf Course and the Golf Course is not operated by the Authority, the City or any of
their Affiliates or any third party; or
(d) The Planning Commission ofthe City of Carlsbad, or the City Council, as applicable, fails to
renew approval or conditional approval ofthe Conditional Use Permh as required and, therefore, the Golf
Course cannot continue to operate.
(e) Ifthe Authority sells or transfers all or any portion of the Golf Course to a third party during the
Management Term, Authority shall deliver to KSM written notice of such proposed sale or transfer at least
ninety (90) days prior to the anticipated date of such sale or transfer. If this Agreement is terminated as a
resuh of such sale or transfer within the first three years of the Management Agreement and KSM is not
retained by the Authority's successor to manage the Golf Course, KSM shall receive from the Authority,
not as a penalty but as compensation for the damages caused to KSM by such early termination, an early
termination fee of One Hundred Thousand Dollars ($100,000) or a pro-rata share of the annual Fixed
Management Fee as yet unpaid at the time of such termination, whichever is less. Such early termination
fee shall be paid to KSM within thirty (30) days after the closing of such sale or transfer.
The Authority's right to terminate this Agreement pursuant to this section shall be exercised upon written
notice to KSM given and Authority's termination notice shall specify the effective date ofsuch termination,
which date shall not be less than thirty (30) days after the date of KSM's receipt of Authority's termination
notice pursuant to Section 6.0; provided, however, that no grace period or thirty (30) day delay shall apply
with respect to terminations pursuant to subparagraphs (c) and (d) of this section.
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6.1 Termination by KSM. KSM shall have the right to terminate this Agreement upon the following
events:
(a) If the Authority fails to keep, observe, or perform any other material covenant, agreement,
term or provision of this Agreement to be kept, observed or performed by Authority, and such defauh
continues for a period of sixty (60) days after notice of such defauh by KSM to Authority, KSM's right to
terminate this Agreement pursuant to this Section 6.1(a) shall be exercised upon written notice to Authority
given at any time after the applicable grace period has expired. The grace period shall be extended as may
be required for the Board of Directors of the Authority to comply with applicable law pertaining to the
posting of agendas and hearings notices. KSM's termination notice shall specify the effective date of such
termination, which date shall not be less than sixty (60) days after the date of KSM's termination notice.
(b) The Authority's failure to pay any sums payable under this Agreement when and as the
same shall become due and payable and such failure shall continue for a period often (10) days after
written notice thereof from KSM to the Authority. KSM's right to terminate this Agreement pursuant to
this Section 6.1(b) shall be exercised upon written notice to Authority given at any time after the applicable
grace period has expired and the notice shall be effective pursuant to the provisions in Section 9.2.
6.2 Payments Upon Termination. Upon expiration or termination of this Agreement, all sums owed by
either party to the other shall be paid within sixty (60) days of the effective date of such termination.
6.3 Curing Defaults. Any defauh by KSM or Authority under the provisions of Sections 6.0 or 6.1(a), as
the case may be, which is susceptible of being cured shall not constitute a basis for termination of this
Agreement if the nature of such default will not permit it to be cured within the grace period allotted;
provided that within such grace period the alleged party in default shall have given notice of its intent to
cure, has commenced to cure such defauh, and is proceeding to complete the cure in good faith and with
reasonable diligence.
6.4 Effect of Termination. The termination of this Agreement under the provisions of this Article 6 shall
not affect the rights of the terminating party with respect to any damages it has suffered as a result of any
breach of this Agreement, nor shall h affect the rights of either party with respect to any liability or claims
accmed, or arising out of events occurring, prior to the date of termination.
6.5 Remedies.
A. The Authority's Remedies. Upon the occurrence of an event of default by KSM, the Authority
may:
1. Seek specific performance of KSM's obligations or injunctive relief, as applicable;
2. Demand payment of all amounts due the Authority under the terms of this Agreement and
demand the payment of all costs, damages, expenses, and fees of the Authority arising due
to KSM's event of default; and
3. Proceed to remedy the event of default,. All sums so expended or obligations incurred by
the Authority in connection therewith, with the exception of attorneys' fees, shall be paid by
KSM to the Authority within thirty (30) days after written demand by the Authority, and in
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the event of a failure of KSM to provide such reimbursement, the Authority may, at the
Authority's option, deduct all costs and expenses incurred in connection with remedying the
event of default from the next sums becoming due to KSM from the Authority under the
terms of this Agreement; and
4. Terminate this Agreement by written notice of termination to KSM. Upon proper
termination of this Agreement, KSM shall surrender occupancy of the Golf Course to the
Authority.
B. KSM Remedies. Upon the occurrence of an event of default by the Authority, KSM may:
1. Demand payment of all amounts due KSM under the terms of this Agreement and demand
the payment of all costs, damages, expenses, fees of KSM due to the Authority's event of
default;
2. Terminate this Agreement by KSM's written notice of termination to the Authority. In such
event, the Authority shall pay to KSM within sixty (60) days of termination an amount equal
to the total unpaid Management Fees that KSM would have eamed had the Agreement
remained in effect until the Termination Date. If the Authority is in material breach of this
Agreement, the parties agree that the Authority shall pay One Hundred Thousand Dollars
($100,000) to KSM as liquidated damages for its breach which is a fair and reasonable
estimate of the damage caused thereby to KSM.
6.6 Remedies Cumulative. Neither the right of termination, nor the right to sue for damages, nor any
other remedy available to a party under this Agreement shall be exclusive of any other remedy given under
this Agreement or now or hereafter existing at law or in equity.
ARTICLE Vn
TITLE MATTERS: ASSIGNMENT
7.0 Ownership of Improvements and Personal Property. All improvements to the Golf Course made
during the term of this Agreement and all Fumishings and Equipment and Operating Inventory purchased
for the Golf Course during the term of this Agreement shall be considered property owned by Authority at
such time as the improvements are made or the Fumishings and Equipment or Operating Inventory are
purchased.
7.1 No KSM Assignment or Subcontracting. KSM shall not assign this Agreement, except to an
Affiliate of KSM, or subcontract any work, without the prior written consent of the Executive Director.
Any assignment by KSM, whether or not requiring the prior consent of Executive Director, shall not be
effective unless and until KSM and such assignee execute an assignment and assumption in a form
acceptable to the City Attomey. It is understood and agreed that any consent granted by the Executive
Director to any such assignment by KSM shall not be deemed a waiver of any consent required under this
Section as to any fiiture assignment. Any assignment by KSM of this Agreement in violation of the
provisions of this Agreement shall be null and void and shall resuh in the termination of this Agreement.
In addition to any other remedies available to the parties, the provisions of this Section shall be enforceable
by injunctive proceeding or by suh for specific performance.
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7.2 Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the parties
and their respective heirs, legal representatives, successors and assigns.
7.3 Golf Course Name. The Golf Course shall be known by such ttade name and/or ttademark or logo as
may from time to time be determined by the Authority. The parties acknowledge and understand that the
names, logos, and designs developed or provided for the Authority and used in the operation of the Golf
Course together with appurtenant goodwill, are the exclusive property of the Authority. KSM may identify
the Golf Course as a golf course managed and operated by KSM; provided, however, that any display of
any KSM logo or other corporate identification shall first be approved by the Executive Director in his sole
discretion.
ARTICLE VIII
DAMAGE OR DESTRUCTION: EMINENT DOMAIN: FORCE MAJEURE EVENTS
8.0 Damage or Destruction. Should the Golf Course be destroyed or substantially damaged by fire,
flood, acts of God, or other casualty. Authority, by written notice to KSM given within sixty (60) days
following the occurrence of such event, shall have the right to terminate this Agreement on the basis that
Authority does not choose to rebuild or restore the Golf Course, and in such event neither party shall have
any fiirther obligation to the other party under this Agreement, except with respect to liabilities accruing, or
based upon events occurring, prior to the effective date of such termination (or, with respect to amounts due
KSM, after such date if h is reasonably necessary to incur additional expenses in the wind-down of
operations of the Golf Course). For the purpose of this Section, the Golf Course shall be deemed to have
been substantially damaged ifthe estimated length of time required to restore the Golf Course substantially
to hs condhion and character just prior to the occurrence of such casualty shall be in excess of six (6)
months, as indicated by an architect's certificate or other evidence reasonably satisfactory to Authority. If
this Agreement is not terminated in the event of damage to the Golf Course either because (i) the damage
does not amount to substantial damage as described above, or (ii) notwithstanding destmction of or
substantial damage to the Golf Course, Authority elects to restore the Golf Course, then Authority shall
proceed, at Authority's own expense, with all due diligence to commence and complete restoration ofthe
Golf Course to hs condition and character just prior to the occurrence ofsuch casualty.
8.1 Eminent Domain. If all of the Golf Course (or such a substantial portion of the Golf Course so to
make it unfeasible, in the reasonable opinion of Authority, to restore and continue to operate the remaining
portion of the Golf Course for the purposes contemplated in this Agreement) shall be taken through the
exercise (or by agreement in lieu ofthe exercise) of the power of eminent domain, then upon the earlier of
(i) the date that Authority shall be required to surrender possession of the Golf Course or of that substantial
portion ofthe Golf Course, or (ii) the date when the Golf Course is no longer open, this Agreement shall
terminate and neither party shall have any further obligation to the other party under this Agreement except
with respect to liabilhies accming, or based upon events occurring, prior to the effective date of such
termination (or, with respect to amounts due KSM, after such date if h is reasonably necessary to incur
additional expenses in the wind-down of operations of the Golf Course). If such taking of a portion of the
Golf Course shall not make it unfeasible, in the reasonable opinion of Authority, to restore and continue to
operate the remaining portion of the Golf Course for the purposes contemplated in this Agreement, then
this Agreement shall not terminate, and Authority shall proceed, at Authority's own expense, with all due
diligence to alter or modify the Golf Course so as to render h a complete archhectural unit, which can be
operated as a golf course of substantially the same type and character as before. If as a resuh of any
alteration or modification ofthe Golf Course as provided in this Section, the responsibilities of KSM under
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this Agreement are substantially changed, then the parties shall meet and discuss in good faith appropriate
modifications to this Agreement including the Management Fees.
8.2 Force Majeure Events. As used in this Agreement, the term "Force Majeure Event" means a
dismption in the operation of the Golf Course due to, or the cause of the failure to perform by a party
hereto due to, declared or undeclared war, sabotage, riot or acts of civil disobedience, acts or omissions of
govemmental agencies (except acts of govemmental agencies including, but not limited to, the Authority
taken in accordance with this Agreement), accidents, fires, explosions, floods, earthquakes, or other acts of
God, strikes, labor disputes, shortages of materials, or any other event not within the control of KSM and
not caused by the gross negligence or intentional wrongful conduct of KSM. Notwithstanding anything
contained herein to the contrary, the provisions of this Section shall not be applicable to either party's
obligation to pay any sums, monies, costs, charges, or expenses required to be paid pursuant to the terms of
this Agreement.
ARTICLE IX
GENERAL PROVISIONS
9.0 Contract Administration. Authority has designated the Executive Director as the individual who is
responsible for administering this Agreement on behalf of Authority. The Executive Director may
designate a member of his or her staff to serve as the Project Manager, which individual shall carry out the
Executive Director's responsibilities in administering this Agreement. The Executive Director shall inform
KSM in writing of the person who will serve as the Project Manger and any change of the Project Manager.
KSM has designated James R. Stegal as the individual who is responsible for administering this Agreement
on behalf of KSM. KSM shall notify the Executive Director in writing if another individual has replaced
the foregoing designated person as the person responsible for administering this Agreement on behalf of
KSM. The parties acknowledge that except as otherwise expressly provided herein (a) the Executive
Director has the authority to approve or consent to those matters identified in this Agreement as requiring
Authority's approval or consent and to make all other decisions on behalf of the Authority regarding the
administration of this Agreement (except where the Authority's Board of Directors approval is expressly
required herein), and (b) KSM's foregoing designated person or such other individual designated by KSM
in writing to the Authority has the authority to approve or consent to those matters identified in this
Agreement as requiring KSM's approval or consent and to make all other decisions on behalf of KSM
regarding the administration of this Agreement. The Authority's management direction to KSM shall be
given by the Executive Director.
9.1 Compliance. KSM shall comply with all applicable laws of govemmental bodies having jurisdiction
with respect to the Golf Course site and KSM performance of this Agreement. KSM shall as a Golf Course
Expense procure and maintain all licenses, permhs, and approvals required for the Golf Course. Upon
termination or expiration of this Agreement, KSM shall cooperate in transferring all licenses, permhs and
accreditations in the name of KSM to Authority as permitted by law. Without the prior written consent of
the Executive Director, the actual amount expended for any Golf Course Expense shall not be greater than
two percent (2%) higher than the amount budgeted in the Annual Plan. Notwithstanding the foregoing
sentence, KSM shall be entitled to make additional expenditures not authorized under the then applicable
Annual Plan in the event of an emergency pursuant to the provisions of Section 2.8(p) or in order to comply
with Insurance Requirements or Legal Requirements.
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9.2 Notices. All notices, demands, requests, consents, approvals, replies and other communications
("Notices") required or permitted by this Agreement shall be in writing and may be delivered by any one of
the following methods: (a) by personal delivery; (b) by deposh with the United States Postal Service as
certified or registered mail retum receipt requested, postage prepaid to the addresses stated below ; or (c)
by deposit with a same-day or ovemight express delivery service that provides a receipt showing date and
time of delivery. Notice deposited with the United States Postal Service in the manner described above
shall be deemed effective three (3) business days after deposh with the Postal Service. Notice by same-day
or ovemight express delivery service shall be deemed effective upon receipt. Notice by personal delivery
shall be deemed effective at the time of personal delivery.
For purposes of Notices hereunder, the address of Authority shall be:
Carlsbad Public Financing Authority
c/o City Manager of the City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, Califomia 92008
Attention: Executive Director
For purposes of Notices hereunder, the address of KSM shall be:
Kemper Sports Management, Inc.
500 Skokie Blvd., Suite 444
Northbrook, IL 60062
Attention: Steven K. Skinner, President
With a copy to: Kemper Sports Management, Inc.
500 Skokie Blvd., Suite 444
Northbrook, IL 60062
Attention: Corporate Counsel
Each party shall have the right to designate a different address by the giving of notice in conformity with
this Section.
9.3 Independent Contractor. KSM shall at all times be considered an independent contractor under this
Agreement. Nothing contained in this Agreement shall be constmed to be or create a partnership or joint
venture between Authority and its successors and assigns, on the one part, and KSM and its successors and
assigns, on the other part.
9.4 Modification and Changes. This Agreement may be amended or modified only by a writing signed
by both parties.
9.5 Entire Understanding and Agreement. This Agreement constitutes the entire understanding and
agreement between the parties with respect to the management of the Golf Course and this Agreement
supersedes all prior understandings and agreements, whether written or oral, between Authority and KSM
pertaining to the subject matter hereof
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9.6 Headings. The Article, Section, and Subsection headings contained in this Agreement are for
convenience and reference only and are not intended to define, limit or describe the scope or intent of any
provision of this Agreement.
9.7 Consents. Each party agrees that h will not unreasonably withhold any consent or approval requested
by the other party pursuant to the terms of the Agreement, and that any such consent or approval shall not
be unreasonably delayed or qualified, except where such consent is expressly stated as within the party's
sole and absolute discretion. Similarly, each party agrees that any provision of this Agreement, which
permits such party to make requests of the other party, shall not be constmed to permh the making of
unreasonable requests.
9.8 Survival of Covenants. Any covenant, term, or provision of this Agreement which in order to be
effective must survive the termination of this Agreement shall survive any such termination.
9.9 Third Parties. None of the obligations under this Agreement of either party shall run to or be
enforceable by any party other than the party to this Agreement or by a party deriving rights under this
Agreement as a resuh of an assignment permitted pursuant to the terms of this Agreement.
9.10 Waivers. No failure by KSM or Authority to insist upon the strict performance of any covenant,
agreement, term or condition of this Agreement or to exercise any right or remedy consequent upon the
breach of this Agreement shall constitute a waiver of any such breach or any subsequent breach ofthe same
covenant, agreement, term or condhion. No covenant, agreement, term or condition of this Agreement and
no breach of this Agreement shall be waived, altered or modified except by a written instmment. A waiver
of any breach of this Agreement shall only affect this Agreement to the extent of the specific waiver, and
all covenants, agreements, terms and conditions of this Agreement shall continue in fiill force and effect.
9.11 Applicable Law. Venue: Service of Process. This Agreement shall be constmed and interpreted in
accordance with, and shall be govemed by, the laws of the State of Califomia. The parties agree that the
Superior Court of the State of Califomia, County of San Diego shall have jurisdiction of any Ihigation
between the parties relating to this Agreement. Service of process on Authority shall be affected in such
manner as required by Califomia law for service on public enthies. Service of process on KSM shall be
made in any manner permitted by Califomia law.
9.12 No Presumption Regarding Drafter. Authority and KSM acknowledge and agree that the terms and
provisions of this Agreement have been negotiated and discussed between Authority and KSM, and that
this Agreement reflects their mutual agreement regarding the subject matter of this Agreement. Because of
the nature of such negotiations and discussions, h would be inappropriate to deem either Authority or KSM
to be the drafter of this Agreement, and therefore no presumption for or against the drafter shall be
applicable in interpreting or enforcing this Agreement.
9.13 Enforceability of Any Provision. If any term, condition, covenant or obligation of this Agreement
shall be determined to be unenforceable, invalid, or void, such determination shall not affect, impair,
invalidate, or render unenforceable any other term, condition, covenant, or obligation of this Agreement .
All amounts payable pursuant to this Agreement shall be in lawful money of the United States of America.
9.14 Counterparts; Facsimile Signatures. This Agreement and any amendment may be executed in
counterparts, and upon all counterparts being so executed each such counterpart shall be considered as an
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original of this Agreement or any amendment and all counterparts shall be considered together as one
agreement. Facsimile signatures shall be as effective as an original signature.
9.15 Covenants Against Discrimination. KSM agrees that in connection with its performance under this
Agreement, there shall be no discrimination by KSM against any person on account of race, color, creed,
religion, sex, marital status, national origin or ancestry. KSM agrees to include a provision similar to this
Section in all subcontracts entered into by KSM in connection with work being performed under this
Agreement.
9.16 Non-liability of Authority or Authority Officers and Employees. No officer, official, employee,
agent, representative, or volunteer of the Authority, or City shall be personally liable to KSM, or any
successor in interest, in the event of any default or breach by the Authority, or for any amount which may
become due to KSM or any successor, or for breach of any obligation of the terms of this Agreement.
9.17 Time of the Essence. Time is of the essence of this Agreement. The parties understand that the time
for performance of each obligation has been the subject of negotiation by the parties.
9.18 Exhibits and Attachments Incorporated. All exhibits and attachments to this Agreement are
incorporated herein and made a part hereof.
9.19 Authority. The parties represent for themselves that (a) such party is duly organized and validly
existing, (b) the person or persons executing this Agreement on behalf of such party is/are duly authorized
to execute and deliver this Agreement on behalf of such party, (c) by so executing this Agreement, such
party is formally bound to the terms and provisions of this Agreement, and (d) the execution of this
Agreement does not violate any provision of any other agreement to which such party is bound.
Additionally, the Authority represents and warrants to KSM that (i) the Authority has and will retain the
property interests in the Golf Course necessary to enable KSM to perform hs duties pursuant to this
Agreement peaceably and quietly; and (ii) that KSM's performance of the services required by this
Agreement shall not violate the property rights or interests of any third party.
9.20 Authorization to Executive Director. In addition to such other authorizations granted to the
Executive Director of Authority in this Agreement to act on behalf of Authority, the Executive Director
shall have the authority, in the event of a dispute involving the interpretation of the terms and provisions of
this Agreement, to reasonably interpret the terms and provisions of this Agreement on behalf of Authority.
9.21 Possessory Interest. Pursuant to Califomia Revenue and Taxation Code Section 107.6, Authority
hereby informs KSM that this Agreement may create a possessory interest subject to property taxation, and
in such event KSM may be subject to the payment of property taxes levied on such interest.
9.22 Proprietary Information. All specifically identifiable information developed by KSM for the
Authority at the expense of the Authority shall be the property of the Authority. All materials, software
programs and technology developed by KSM at KSM's expense, shall be the exclusive property of KSM
and neither the Authority nor any of hs affiliates or successors may use, copy or disclose such proprietary
information without the advance written consent of KSM. The obligations and restrictions contained in this
Section shall survive the expiration or termination of this Agreement for any reason.
9.23 Restrictions as to Employees. During the Management Term and for a period of one (I) year after
the end ofthe Management Term, it is agreed that neither the Authority nor the City shall employ any Key
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Employee of KSM nor shall the Authority or the City request or require their agents or contractors to
employ or seek to employ any such Key Employee, without first obtaining the written consent of KSM.
For purposes hereof, a "Key Employee" of KSM shall mean the General Manager of the Golf Course, the
Golf Course superintendent, or any employee of KSM's corporate office.
9.24 Outside Business. Nothing contained in this Agreement shall be constmed to restrict or prevent, in
any manner, any party or any party's affiliates, parent corporations, or representatives or principals from
engaging in any other businesses or investments, nor shall the Authority or KSM have any right to share or
participate in any such other businesses or investments ofthe other party.
[end - signature page follows]
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IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the day and
year first written above.
CONTRACTOR: KEMPER SPORTS
MANAGEMENT, INC., an fllinois
Corporation
By:
(sign here)
CARLSBAD PUBLIC FINANCING AUTHORITY,
a Public Entity and Joint Powers Authority
By:
MATT HALL
Chairman of the Board
By:
(print name/title)
(sign here)
(print name/title)
ATTEST:
LORRAINE M. WOOD,
Secretary
If required by Authority, proper notarial acknowledgment of execution by contractor must be attached. Ifa
Corporation, Agreement must be signed by one corporate officer from each ofthe following two groups.
*Group A.
Chairman,
President, or
Vice-President
**Group B.
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under
corporate seal empowering the officer(s) signing to bind the corporation.
EXHIBITS:
EXHIBIT A -Golf Course Operations and Maintenance Evaluation Form
EXHIBIT B - Habitat Preserve Area
EXHIBIT C - Notice of Golf Course Deficiency
EXHIBIT D - Legal Description of Real Property
EXHIBIT E - Regulatory Permhs
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H3
EXHIBIT A
The Crossings
At Carlsbad
AT CARLSBAD
Golf Course Operations
Maintenance Standards
r C A R L S B A O
GOLF COURSE AUDIT
TABLE OF CONTENTS
INTRODUCTION
OVERVIEW OF MAINTENANCE RESPONSIBILITIES
GREENS MAINTENANCE
TEE MAINTENANCE
FAIRWAY MAINTENANCE (INCLUDING DRIVE RANGE AREA),
ROUGH AND OTHER TURF AREA MAINTENANCE
NURSERY MAINTENANCE
ACCESSORY EQUIPMENT MAINTENANCE
IRRIGATION MAINTENANCE
OTHER
GOLF COURSE AUDIT-RATING SHEETS
GREENS
FAIRWAYS AND ROUGHS
TEES
PRACTICE RANGE
LAKES AND OTHER WATER BODIES
TRAFFIC CONTROL
DRAINAGE
GOLF COURSE RESTROOMS
MAINTENANCE SHOP AND EQUIPMENT
NATIVE AREAS / MITIGATION / V-DITCHES
CL UBHO USE A UDIT
EXTERIOR CLUBHOUSE.
INTERIOR CLUBHOUSE
RESTROOMS
GOLF SHOP
FOOD AND BEVERAGE
BANQUET ROOM - "The Canyons"
SECURITY
CARTS
NOTICE OF GOLF COURSE DEFICIENCIES
DEFICIENCY FOLLOW-UP
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HS
r^ViE CROSSIJ^Q
AT CARLSBAD
INTRODUCTION
The City shall complete an Operation and Maintenance Evaluation form and supply the
Golf Course operator with the results ofthe evaluation. The purpose is to ensure that
Golf Course operations are adhering to best practices in management operations,
resulting in providing the citizens of Carlsbad with the best experience possible related
to all facets of the golf course. The following Golf Course Operations & Maintenance
Standards have been produced by City staff as a tool for this purpose.
This document is meant to be only a guide for evaluation of performance. Evaluations
are not limited to the items within and some of the listed items may not need to be
evaluated. This document may be amended from time to time by the City to best suit
their needs.
The schedule of evaluations by the City will be determined at their sole discretion
however it anticipated that they will be made quarterly.
The Crossings at Carlsbad in Carlsbad, CA
OVERVIEW OF MAINTENANCE RESPONSIBILITIES
GREENS MAINTENANCE
Golf Course Operator shall maintain all greens in accordance with accepted playability and
industry-wide standards. Without limiting the generality of the foregoing, Golf Course Operator
shall maintain ail greens in accordance with the following minimum requirements that will allow
the greens to be between 9 and 9.5 on a Stimp Meter, the recommended speed ofthe greens:
1. Change cups and repair ball markers daily.
2. Mow greens daily with a reel-type mower designed specifically for mowing golf greens
and of the type, make and model accepted by the golf industry.
3. Verticut all greens as needed to control mat and thatch buildup.
4. Aerify greens as needed and remove plugs the same day, top dress the greens following
each aerification.
5. Treat greens with proper chemicals to control invasive grasses (i.e. Poa Anua, Kikuyu),
insects, disease and other pests.
6. Fertilize greens at a rate and frequency that will promote healthy turf propagation.
7. Golf Course Operator shall have the soil analyzed annually and shall apply fertilizer in the
quantity and type recommended by such analysis in a manner to provide uniform growth
of turf.
TEE MAINTENANCE
Golf Course Operator shall maintain all tees in accordance with accepted playability and
industry-wide standards. Without limiting the generality ofthe foregoing. Golf Course Operator
shall maintain all tees in accordance with the following minimum requirements:
1. Service tees decks daily by moving markers, sand and seed buckets, and picking up
broken and used golf tees.
2. Mow tees three to four times weekly with reel-type mower at appropriate height for turf
type and climate conditions. Also make sure tees are squared correctly to maintain their
original shape.
3. Verticut tees as needed for thatch removal.
4. Repair worn and damaged turf areas as they occur by overseeding or resodding to
ensure playable tees at all times.
5. Treat tees for control of invasive grasses (Kikuyu, Poa Anua, Common Bermuda, etc.)
insects, disease, weeds, and other pests necessary to maintain healthy turf.
6. Repair divots at least 3-5 days per week.
7. Golf Course Operator shall have the soil tested as needed and apply fertilizer in the
quantity and type recommended by such soil analysis in a manner to provide uniform
growth of turf.
FAIRWAY MAINTENANCE (INCLUDING DRIVE RANGE AREA)
1. Mow fain/vays with a reel-type mower.
2. Verticut fainA^ays as necessary for turf health and playing conditions.
3. Aerify all fainvays as needed.
4. Overseed and top dress (or, resod) worn or bare areas of fairways as necessary.
5. Treat turf to control weeks, invasive grasses (Kikuyu, Poa Anua, Bermuda) disease,
insects and other pests necessary to maintain week-free and healthy turf.
6. Fertilize fain^^ays at a rate and frequency that will promote healthy turf propagation.
7. Golf Course Operator shall have the soil analyzed annually and apply fertilizer in the
quantity and type recommended by such soil analysis in a manner to provide uniform
growth of turf.
ROUGH AND OTHER TURF AREA MAINTENANCE
Golf Course Operator shall maintain rough, turf, perimeter landscape areas, and landscape
lawn areas, including plant and annual color areas, in accordance with accepted playability and
industry-wide standards. Without limiting the generality of the foregoing, Golf Course Operator
shall maintain all rough, turf, perimeter landscape areas, landscape lawn areas, including plant
and annual color areas, in accordance with the following minimum requirements:
1. Mow at least once per week.
2. Vericut as necessary to promote healthy growth.
3. Aerify as needed and seed or sod worn bare areas in turf as necessary.
4. Treat turf to control weeks, invasive grasses (Kikuyu, Poa Anua, Bermuda) disease,
insects and other pests necessary to maintain a healthy turf.
5. Fertilize at a rate and frequency that will promote healthy turf propagation.
6. Golf Course Operator shall have the soil analyzed as needed and apply fertilizer in the
quantity and type recommended by soil analysis in a manner to provide uniform growth of
turf.
7. All V-Ditches along the perimeter of the property must be kept clean of debris to allow
storm run-off.
8. Native areas must be kept free of all non-native plant life and weeded at least twice a
year. Areas lacking growth will be aerified, seeded and irrigated to promote growth. If
necessary some native floral will be planted.
NURSERY MAINTENANCE
Kemper shall maintain the sod nursery green located at the maintenance yard at all times to the
foregoing greens maintenance specifications.
ACCESSORY EQUIPMENT MAINTENANCE
Golf Course Operator shall maintain all golf course accessory equipment in a clean, safe,
functioning condition at all times, replacing with equipment and/or materials as necessary,
including, but not limited to, the following:
1. Signs.
2. Tee markers.
3. Course Markers (out-of-bounds markers, water hazard stakes, cart directional signs, etc.)
4. Directional flags, poles and roping.
5. Distance markers (tee yardages, 150 yards, etc.)
6. Green flags, poles and cups.
7. Practice green markers and cups.
8. Trash receptacles.
9. Cleat brushes.
IRRIGATION MAINTENANCE
Golf Course Operator shall maintain the entire irrigation system serving the Golf Course
property, including main lines, valves, lateral lines, sprinkler heads, and controllers, in good
repair, functioning properly and conforming to all related codes and regulations at all times.
Kemper shall irrigate the Golf Course property as required to maintain adequate moisture for
growth rate and appearance in accordance with accepted industry standards. Adequate soil
moisture shall be determined by visual observation, plant resiliency, turgidity, examining cores
removed by soil probe, devices which measure moisture content and programming irrigation
controllers accordingly. In addition:
1. Consideration shall be given to soil texture, structure, water holding capacity, drainage,
compaction, precipitation rate, run-off, infiltration rate, percolation rate, seasonal
temperatures, prevailing wind condition, time of day or night, type of grass or plant, and
root structures.
2. In areas where wind creates problems of spraying onto private property or road rights-of-
way, the controller shall be set to operate during the period of lowest velocity.
3. Golf Course Operator shall be responsible for monitoring all systems within the Golf
Course property and for correcting the same for coverage, adjustment, clogging of lines,
and sprinkler heads, and removal of obstacles, including plant materials which obstruct
the spray.
4. Golf Course Operator shall check the system daily and adjust and/or repair any sprinkler
heads causing excessive run-off, or which throw directly onto roadway, paving or walks
within rights-of way.
5. All controllers shall be inspected on a daily basis and adjusted as required, considering
the water requirements of each remote control valve.
6. A soil probe or tension meter shall be used regularly to determine the soil moisture
content in various areas, with particular attention being given to the greens.
7. Golf Course Operator shall repair all leaking or defective valves within twenty-four (24)
hours.
OTHER
Golf Course Operator shall observe all legal requirements and safety regulations in the
use and storage of chemicals, hazardous materials, supplies and equipment.
Golf Course Operator shall maintain the golf maintenance storage room and yard in a
clean, orderly and safe condition at all times, conforming to ail applicable laws and
regulations.
Golf Course Operator shall take reasonable measures to protect golfers from injury and
the Golf Course from damage in periods of frost, rainy weather and other unusual
conditions.
Golf Course Operator shall maintain walkways, steps, handrails on walkways, header
boards, and cart paths in a clean, edged, safe and weed-free condition.
Golf Course Operatorshall maintain, repair and replace parking lots, driveways to achieve
clean, safe and weed-free conditions.
Golf Course Operator shall inspect the following frequently and repair as needed:
a. All area lighting systems for safe and functioning condition, and
b. All golf course parking lots, walkways and interior paved and/or unpaved surface
roads.
r^V^E CROSSIA^Q^
AT CARLSBAD
Golf Course Operations and Maintenance Standards
GOLF COURSE AUDIT - RATING SHEETS
Area
Greens
Fairways & Rough
Tees
Driving Range
Maintenance Records & Schedules
Lakes & Other Water Bodies
Traffic Control
Drainage
Golf Course Restrooms
Maintenance Shop & Equipment
Native Areas/Mitigation/ V-Ditches
Unacceptable
Needs
Improvement Acceptable
Overall Course Operations
(Auditor's Name Printed) (Auditor's Signature) Date
5^6
GREENS
QUALITY STANDARDS: Smooth, uniform, turf, firm, but not hard, well-defined, consistent, of
suitable speed (suggested 9 to 9.5 on the Stimp Meter depending on season and weather
condition) for the location. Cups placed in accordance with USGA recommendations. Flags
must stand straight up. Cups, poles and flags are uniform, clean and in good repair. Pin
placements must in line with daily GPS settings.
1. Quality. How do they putt and play?
100% Turf cover, smooth and uniform. Do the greens hold approach shots? Are the cups
cut cleanly and in proper location? No diseases, weeds, insects, rodents, bare spots or
numerous pitch marks.
Unacceptable Needs Improvement Acceptable
Appearance. How do they look?
Color and texture ofthe greens turf, uniformity ofthe mowing, condition of cup, flag and
pole, condition ofthe areas around the greens. No diseases, weeds, rodents, or off-color
areas.
• Unacceptable Needs Improvement Acceptable
Green Bunkers. How do they play and look?
Sand surface is uniform and smooth, and is adequate depth for play. No weeds, debris or
rocks in traps. Adequate number of rakes, in good condition and properly placed. Quality of
mowing/trimming around traps. As necessary, edge traps to always maintain a neat lip.
Appropriate drainage.
Unacceptable Needs Improvement Acceptable
Si
RATING SHEET
FAIRWAYS AND ROUGHS
QUALITY STANDARDS: Fainvays - Smooth, uniform turf cover, smooth mowing and trimming,
clean, firm but not hard, well defined, that properly supports the ball for play. Divots must be
repaired in a timely manner. Roughs - Properly mowed and trimmed, clean and adequately
uniform for play, distinct in height from fainvays. Perimeter fencing properly trimmed at all
times.
1. Quality. How do they play?
Mowing height of fainvays and roughs is within USGA specifications, mowing frequency is
appropriate for the turf type and season. Second cut of rough. Fain/vay turf properly
supports the ball for play. Able to find the ball in the roughs. Absence of wet or dry spots in
play areas. No visible clippings. Appropriate drainage.
Unacceptable Needs Improvement Acceptable
2. Appearance. How do they look?
Uniformity of color and irrigation, texture, quality mowing. Appearance of being "manicured"
through striping. Turf coverage in high traffic areas. No weeds, insects, rodents, off-color
areas, invasive grasses.
Unacceptable Needs Improvement Acceptable
3. FainA/ay Bunkers. How do they look?
Sand surface is uniform and smooth, and is adequate depth for play. No weeds, debris or
rocks in traps. Adequate number of rakes, in good condition and properly placed. Quality of
mowing/trimming around traps. As necessary, edge traps to always maintain a neat lip.
Appropriate drainage.
Unacceptable Needs Improvement Acceptable
4. Trees and Shrubs.
Pruned to maintain specimen health and safety to golfers and maintenance employees. Not
to interfere with cart traffic or line of sight of golfers.
Unacceptable Needs Improvement Acceptable
TEES
QUALITY STANDARDS: Tees -Tees smooth, completely turfed, leveled, firm but not hard,
clean, properly directed, with amenities (trash cans, signs, tee markers, monuments, sand and
seed containers, as appropriate) in good condition and repair, consistent and uniform. All divots
must be filled daily, very few unfilled divots at any given time.
1. Appearance, Manicured and Clean.
100% turf cover, smooth and uniform. No weeds, diseases, insects, rodents or invasive
grasses. Consistent, adequate top dressing and seeding program. Minimal litter or broken
tees.
Unacceptable Needs Improvement Acceptable
2. Perimeter Areas Around Tees.
Area between cart path (if any) and tee-uniformity and smoothly turfed, no mud or dirt, ball
washers are clean, in good repair and properly located for the tee positions. Cart paths are
clean and properly placed as necessary; no identifiable traffic wear into tee.
Unacceptable Needs Improvement Acceptable
PRACTICE RANGE
1. Appearance, Manicured and Clean.
Uniformity of mowing. Color, texture, of turf, smoothness or surface, cleanness of mowing
on perimeters, absence of scalping. Consistent, adequate top dressing and seeding
program.
Unacceptable Needs Improvement Acceptable
2. Perimeter Areas Around Tees.
Area between cart path (if any) and tee-uniformity and smoothly turfed, no mud or dirt,
benches, club washers, bag stands are clean, in good repair and properly located forthe tee
positions. Cart paths are clean and properly edged, curbing or ropes / stakes are clean and
properly placed as necessary; no identifiable traffic pattern into tee.
Unacceptable Needs Improvement Acceptable
3. Range Landing Area.
Turfed, clean and mowed per fairway maintenance section of audit.
Unacceptable Needs Improvement Acceptable
LAKES AND OTHER WATER BODIES
QUALITY STANDARDS: Water Bodies - Clean, well-defined, free of weeds and noxious
growth; well-marked and attractive.
1. Appearance of water-clean, no weeds or noxious growth, no noxious odors, no floating
trash/debris.
Unacceptable Needs Improvement Acceptable
2. Ground around lakes - mowing, trimming, etc.
Unacceptable Needs Improvement Acceptable
SJ
TRAFFIC CONTROL
1. Ropes, stakes, and other traffic control devices are clean as necessary, in good condition,
straight and repaired. Traffic control devices are used effectively to minimize turf wear in
high traffic areas. Worn areas are under repair. Routes used by golf carts are well-
maintained, free of potholes, and present a generally smooth and clean appearance.
Unacceptable Needs improvement Acceptable
2. Cart paths - Concrete paths are uniform in width and surfaces are safe for spikes, smooth
for operation of golf carts.
Unacceptable Needs Improvement Acceptable
DRAINAGE
1. Appropriate drainage is in place throughout the course and existing drains are clear from turf
and debris. Where needed a plan is in place to add additional drainage.
Unacceptable Needs Improvement Acceptable
GOLF COURSE RESTROOMS
1. Entry mat or carpet clean / entry door finger mark-free / tile and painted walls clean / toilets
clean / bowls, rims, tank tops and bodies / toilet seats clean, tops and under sides / mirror
clean and streak free / soap dispenser clean and full / paper towel dispenser clean and full /
toilet paper dispenser clean and full / seat cover and dispenser clean and full / counter top
clean / sink and faucet fixtures clean and functional. Light fixtures clean, functional and bug-
free / room air freshener clean and functional / trash receptacle, clean with liner, reasonably
empty.
Unacceptable Needs Improvement Acceptable
MAINTENANCE SHOP AND EQUIPMENT
1. Shop area is orderly, clean, with no obvious safety hazards. Fertilizer and chemical storage
is per training manual. No disorganized junk or trash in yard or shop. Condition of
Superintendent's office.
Unacceptable Needs Improvement Acceptable
2. Equipment is in good repair, is clean and properly maintained.
Unacceptable Needs Improvement Acceptable
3. Restrooms.
Unacceptable Needs Improvement Acceptable
NATIVE AREAS / MITIGATION / V-DITCHES
QUALITY STANDARD: Free of weeds at least weeded twice per year and as needed. No
weeds 5 yards off the cart path. Approved native palette must be growing in at acceptable rate.
Areas that show no growth or are retarded in the grow-in process must be irrigated, aerified and
reseeded either by hydro seed or thrown seed. Also acceptable to plant approved native
palette. All approved native palette must be maintained to not interfere with the golfer's sight
lines. All V-ditches must remain completely clear at all times. After rains V-ditches must be
cleared ASAP to allow for future storm drainage.
a) NATIVE LANDSCAPES
Unacceptable
b) MITIGATED AREAS
Unacceptable
c) V-DITCHES
Unacceptable
Needs Improvement
Needs Improvement
Needs Improvement
Acceptable
Acceptable
Acceptable
5*^
CROSSIATQ
AT CARLSBAD
CLUBHOUSE AUDIT
Area
Needs
Unacceptable Improvement Acceptable
Clubhouse Exterior
Clubhouse Interior
Rest Rooms
Golf Shop
Food & Beverage
Banquet Room
Security
Carts
(Auditor's Name Printed) (Auditor's Signature) Date
CLUBHOUSE
EXTERIOR CLUBHOUSE
1. Parking lot trash-free / lot well striped and in good repair / trash bin area clean.
Unacceptable Needs Improvement Acceptable
2. Exterior wall surface clean and cob-web free / windows clean and edges, proper planting,
flowers fresh and colorful, planter beds weed and trash-free.
Unacceptable Needs Improvement Acceptable
3. Ground well manicured / trash-free / walkways clean and edged, proper planting, flowers
fresh and colorful, planter beds weed and trash-free.
Unacceptable Needs Improvement Acceptable
4. Bag racks, shoe cleaners painted, clean and in good repair / pay phones clean / directories
available.
Unacceptable Needs Improvement Acceptable
INTERIOR CLUBHOUSE
1. Interior paint in good condition / walls and vents clean / wall-mounted / pictures hung
properly and clean / carpet vacuumed and spot-free or floor clean.
Unacceptable Needs Improvement Acceptable
RESTROOMS
1. Entry mat or carpet clean / entry door finger mark-free / tile and painted walls clean / toilets
clean / bowls, rims, tank tops and bodies / toilet seats clean, tops and under sides / mirror
clean and streak free / soap dispenser clean and full / paper towel dispenser clean and full /
toilet paper dispenser clean and full / seat cover and dispenser clean and full / counter top
clean / sink and faucet fixtures clean and functional. Light fixtures clean, functional and bug-
free / room air freshener clean and functional / trash receptacle, clean with liner, reasonably
empty.
Unacceptable Needs Improvement Acceptable
SI
GOLF SHOP
1. Customer Service: all staffers have been trained in and provide "Best in Class" service to
customers [including staff empowered to handle customer problems].
Unacceptable Needs Improvement Acceptable
2. Ready Golf: Tee-hosts and Player Assistants trained to promote proper speed of play. All
golf shop personnel trained on how to properly use GPS (Prolink).
Unacceptable Needs Improvement Acceptable
3. Merchandise hung and folded properly by color / departmentalized, clean and neat.
Unacceptable Needs Improvement Acceptable
4. Carpet vacuumed and spot-free or floor clean / windows and mirrors clean and streak-free /
shelves, counter tops, base boards, window ledges dusted / starter counter clean / dressing
room clean, not used for storage.
Unacceptable Needs Improvement
5. All signage is professional. Easy and safe flow through golf shop.
Unacceptable Needs Improvement
6. Staff in uniform / clean / neat and clean hair, with name badge.
Unacceptable Needs Improvement
7. Customer comment forms on counter.
Unacceptable Needs Improvement
Acceptable
Acceptable
Acceptable
Acceptable
J 0
FOOD AND BEVERAGE
1. Snack Bar
Staff in uniform: logo shirt / name badge / staff is friendly, smiling, and helpful.
Unacceptable Needs Improvement Acceptable
2. Front counter clean / condiments fresh and in clean containers, coffee and soft drink
stations clean and adequately stocked and ready for use / napkin dispensers clean and full.
Unacceptable Needs Improvement
3. Snack display well stocked and clean.
Unacceptable Needs Improvement
4. Hot dog cooker clean / well stocked / adequate fresh buns.
Unacceptable Needs Improvement
5. Menu board clean / no hand lettering.
Unacceptable Needs Improvement
Acceptable
Acceptable
Acceptable
Acceptable
6. Storage areas: Clean, shelves organized. Food and chemicals stored per applicable
governmental regulations.
Unacceptable Needs Improvement Acceptable
BANQUET ROOM - "The Canyons'*
1. Chairs, seats and frames clean and in good repair / tables clean, tops and bases / carpets
clean and in good repair.
Unacceptable Needs Improvement Acceptable
Dining Area: Carpet vacuumed and spot-free / windows clean and streak-free tables and
chairs neatly arranged / table tops clean and bases dusted / chairs clean / linens neat and
clean / lights clean and functional / staff in uniform / menu clean.
Unacceptable Needs Improvement Acceptable
Bar Seating Area: Carpet vacuumed and spot-free / windows clean and streak-free / bar
stools, tables and chairs clean / bar top clean with supplies neatly arranged / bar mats and
floor clean, glass shelves clean and streak-free / staff in uniform with name badges / light
fixtures clean and functional / back bar organized / liquor brands displayed and dusted /
refrigerators clean and organized / beer dispenser and drains clean / license framed,
posted, and current / liquor storage floors, walls and vents clean.
Unacceptable Needs Improvement Acceptable
Kitchen: Dish washing machine clean and sanitation procedures followed / garbage
disposal operable / pots, pans and all shelving grease-free / garbage cans clean with liners /
chopper, slicer and mixer clean and operable, kitchen floors clean / drains operable and
clean / hoods, filters clean / refrigerators clean and organized-food stored off of the floor /
food film covered in refrigerators and freezers / temperature of refrigerators and freezers
compliant with health standards / walls and doors clean / fire extinguishers and ancillary
system current / last Health Department Inspection report easily accessible.
Unacceptable Needs Improvement Acceptable
5. Equipment clean and functioning / freezers and refrigerators at correct temperature. Sink
areas clean. Grill areas and all filters clean. Trash containers clean including lid liner buffer
brown / reasonably empty / cigarette urns clean.
Unacceptable Needs Improvement Acceptable
SECURITY
1. Alarm system operational, staff trained to use / only management has pass through / fire
extinguishers services / Infibulations machines and program in place.
Unacceptable Needs Improvement Acceptable
2. Parking and clubhouse lighting adequate, functional and on time, set properly for the
season: off am - on pm.
Unacceptable Needs Improvement Acceptable
4,0
CARTS
1. Electric Carts of site:
Quantity of carts down #
And reasons why:
Unacceptable Needs Improvement Acceptable
2. Carts are rotated on a regular basis / records kept / surfaces of batteries clean and free of
acid, rest of cart chassis and mechanical recently cleaned.
Unacceptable Needs Improvement Acceptable
3. Carts / seats clean and in good repair / floor mats clean and in good repair / cart bodies and
roofs and in good repair.
Unacceptable Needs Improvement Acceptable
4. Cart storage area clean, no junk.
Unacceptable Needs Improvement Acceptable
5. Employees demonstrate caring customer service / neat appearance / following club dress
code / name badge.
Unacceptable Needs Improvement Acceptable
6. GPS System operational.
Number of Units down
CROSS/iVcc
AT CABLSBAD
City of Carlsbad / The Crossings at Cartsbad
NOTICE OF GOLF COURSE DEFICIENCIES
Golf Operations
Greens
Fairways & Roughs
Tees
Driving Range
Maintenance Records & Schedules
Lakes & Water Bodies
Traffic Control
Drainage
Golf Course Restrooms
Maintenance Shop and Equipment
Native Areas / Mitigation / V-Ditches
Clubhouse Operations
Clubhouse Audit Form
Clubhouse Exterior
Clubhouse Interior
Restrooms
Golf Shop
Food and Beverage
Banquet Room - "The Canyons"
Security
Carts
Statement of Deficiency
Describe nature of deficiency to be corrected:
Reported By:
Date Statement of Correction Due:
Date:
Statement of Correction
Describe what has or will be done to correct this deficiency:
Reported By: Date:
Acknowledgement of Deficiency Correction
It is hereby acknowledged that the above-listed golf course deficiency has been satisfactorily corrected.
For City of Carlsbad
By: Date:
For Golf Course l\^anagement
By: Date:
DEFICIENCY FOLLOW-UP
Item Deficiency Location Action Taken
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
(.3
as 25
0.43 AC.
yiQim M/\p
HTS
CITY OF CARLSBAD GOU COURSE SITE
OPEN SPACE AND CONSERVATION EASEMENT
AND DEED RESTRICTION INDEX MAP
OS f
p.aa
LEGEND
INDICATES an OF CARLSBAD GOLF COURSE
SITE OmERSmP UNE
INDICAIES OPEN SPACE AREA 1
INDICATES POINT OF BEGINNING
INDICATES POINT OF COUUEHCDiENT
arr OF CARLSBAD. PROPERTY otn.
1200 CARLSBAD WLAGE ORTVC
CARLSBAD, CA 92008
PAD CONSUL TANTS, INC. MM «9 JMw one omc surir »io m
X
w
H
OD
OS 28 4.73 AC
: INDICATES OTY OF CARLSBAD GOLF COURSE
SITE OmERSHIP UNE
OS ; ; INDICATES OPEN SPACE AREA I
: INDICATES PONT OF BEOmiNG
P.O.C. : INDICATES POINT OF COHMNCEUENT
SEE SHEET $0
CITY OF CARLSBAD GOLF COURSE SITE
OPEN SPACE AND CONSERVATION EASEMENT
AND DEED RESTRICTION INDEX MAP
MENT
RLSB'AD. PROPERTY Oh...„
1200 CARLSBAD VfLMGE DRIVE
CARLSBAD, CA 92008
PSD CONSUL TANTS, INC. msimos^M am emc, sure tm
6^
EXHIBIT C
CarbM Fnbik Vlaumtimg Aathmrity
CarbM Muidptl Golf Co«rM
NOTICE OF GOLF COURSE OEncnmCY
G^ifOBftioM Qn^^rmQjmlkM
Greeni Qubhouse
Fairways A Roughs QoifSliop
Tees Hard Goods Pro Sbop
Driving Range FoodABeverage
Maintenaiioe Records A Schedules Security ft Accounting
Lakes ft Wafer Hazards Carts
Maintenance Employees Personnel
MaimenBace Shop ft Equipment Lockers
Traffic Control
Rest Room
Stattment of Mldeacj
Describe nature of deficiency to be corrected:
Reported By: Date:_
Date Statement of Correction Due:
Statcncat of Correetios
Describe what has or will be done to correct this deficiency:
Reported BY: Date:.
AcknowledfleaieBt of Deficiency Correction
It is hereby acknowledged that the above-listed golf course deficiency has been
satisftctorily corrected.
For Carisbad Pubiic Financing Authority
Bv: Date:.
For Kemper Sports Management
Bv: Date:,
EXHIBIT D
LEGAL DESCRIFnON
OF
CITY OF CARLSBAD GOLF COURSE PROPERTY
LOTS 50 THROUGH 76 INCLUSIVE OF CARLSBAD TRACT NO. 81-46 UNIT NO. 3,
ACCORDING TO MAP THEREOF NO. 11289, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY ON JULY 16, 1985, TOGETHER WTTH THAT
PORTION OF CARRIER AVENUE, SWIFT PLACE, PALOMAR OAKS WAY, COLLEGE
BOULEVARD AND OTIS COURT AS DEDICATED ON SAID MAP NO. 11289, WHICH
UPON CLOSING WOULD REVERT TO BY OPERATION OF LAW TO SAID LOTS; ALSO
THAT CERTAIN LOT DESIGNATED AS "REMAINDER PARCEL" ON SAID MAP 11289;
ALSO. LOTS I THROUGH 26 OF CARLSBAD TRACT NO. 85-17, ACCORDING TO MAP
THEREOF NO. 12903, FILED IN THE OFHCE OF THE COUNTY RECORDER OF SAN
DIEGO COUNTY ON DECEMBER 13. 1991, TOGETHER WITH THAT PORTION OF
COLLEGE BOULEVARD, ROCKEFELLER ROAD, CARNEGIE COURT, GETTY PLACE,
HAMMER COURT, PALOMAR AIRPORT ROAD AND HIDDEN VALLEY ROAD AS
DEDICATED ON SAID MAP NO. 12903. WHICH UPON CLOSING WOULD REVERT BY
OPERATION OF LAW TO SAID LOTS; ALSO, A PARCEL OF LAND BEING A PORTION
OF LOT F AND A PORTION OF LOT G OF RANCHO AGUA HEDIONDA, ACCORDING
TO PARTITION MAP THEREOF NO. 823 FILED IN THE OFHCE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, NOVEMBER 16, 1896; BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT POINT 9 OF SAID LOT
F; THENCE N.0029'11"W. ALONG THE WESTERLY BOUNDARY OF SAID LOT F,
167.78 FEET TO A POINT ON THE ARC OF A NONTANGENT 58.00 FOOT RADIUS
CURVE, CONCAVE WESTERLY, A RADL\L LINE TO SAID POINT BEARS
S.55*^3'22"E.; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A
CENTRAL ANGLE OF 705137", A DISTANCE OF 71.73 FEET TO SAID WESTERLY
BOUNDARY; THENCE N.OO 29*11 "W., 2092.42 FEET TO POINT 8 OF SAID LOT F;
THENCE N.06*'4751"E., 1219.60 FEET TO A POINT ON TBE NORTHERLY LINE OF SAID
LOT E. DISTANT S.87»23'24"E.. 2025.08 FEET FROM POINT 6 OF SAID LOT F; THENCE
S.87*»23'24"E. 2417.19 FEET TO THE NORTHWEST CORNER OF THE LAND DESCRIBED
IN DEED TO HOWARD G. KIRGIS, ET UX., RECORDED SEPTEMBER 24,1957 IN BOOK
6761, PAGE 197 OF OFHCIAL RECORDS; THENCE S.02*»36'36"W., 740.00 FEET TO THE
SOUTHWEST CORNER OF SAID KIRGIS PROPERTY; THENCE S.87*^3'24"E., 1378.84
FEET TO THE SOUTHEAST CORNER OF SAID KIRGIS PROPERTY; THENCE
S,10 58*35"E., 1394.10 FEET TO POINT 14 OF SAID LOT F; BEING THE MOST
NORTHERLY CORNER OF LAND DESCRIBED IN DEED TO S.L. KELLY, RECORDED
FEBRUARY 3,1961, AS FILE NO. 202293 OF OFFICL\L RECORDS; THENCE ALONG
THE NORTHEASTERLY LINE OF SAID KELLYS LAND S.51*X)r58"E., 1042.27 FEET;
THENCE S.38*5y02"W.. 288.57 FEET; THENCE N.51*0r58"W. 152.00 FEET, THENCE
S.38**58'02"W. 152.00 FEET; THENCE N.51*^r58"W. 1089.27 FEET TO A POINT ON THE
LOT LINE BETWEEN POINT 13 AND POINT 14 OF SAID LOT F; THENCE S.63**14'04"W.
ALONG SAID LOT LINE 564.30 FEET TO SAID POINT 13;
THENCE S.4042WW., 1584.44 FEET TO POINT 12 OF SAID LOT F; THENCE
N.89**46'4r"W., 646.% FEET TO POINT 11 OF SAID LOT F; THENCE N.59*»4749"W.,
1175.97 FEET TO POINT 10 OF SAID LOT F; THENCE S.70 54'2rW., 546.55 FEET TO
THE POINT OF BEGINNING; EXCEPTING THEREFROM ALL THOSE PORTIONS
DESCRIBED IN DOCUMENTS RECORDED SEPTEMBER 10,2001 AS INSTRUMENT NO.
01-0646854, 010646855, 01-0646856 AND 01-0646857 OF OFRCIAL RECORDS; ALSO
EXCEPTING THEREFROM THOSE PORTIONS DESCRIBED IN PARCELS A AND C IN
GRANT DEED RECORDED FEBRUARY 15, 2002 AS INSTRUMENT NO. 0135145 OF
OFnCLU. RECORDS; ALSO THE SOUTHEASTERLY 152.00 FEET OF THE
SOUTHWESTERLY 152.00 FEET OF THAT CERTAIN PORTION OF LOT G OF RANCHO
AGUA HEDIONDA, ACCORDING TO SAID PARTmON MAP THEREOF NO. 823,
BOUNDED AND DESCRIBED AS FOLLOWS: BEGINNING AT POINT 7 OF SAID LOT G
WHICH POINT IS ALSO SHOWN AS POINT 14 OF LOT F ON SAID PARTITION MAP
NO. 823; THENCE FROM SAID POINT OF BEGINNING, S.5P15'45"E., ALONG THE
NORTHEASTERLY LINE OF SAID LOT G, 1042.27 FEET; THENCE AT RIGHT ANGLES
S.3r»44'15"W. 440.57 FEET; THENCE AT RIGHT ANGLES N,52*»15'45"W., 1240.75 FEET
TO A POINT ON THE NORTHWESTERLY LINE OF SAID LOT G; THENCE N.62*W00"E.
ALONG A PORTION OF THE NORTHWESTERLY LINE OF SAID LOT G, 483.29 FEET
TO THE POINT OF BEGINNING OF THE PROPERTY HEREIN DESCRIBED, ALL OF
THE AFOREDESCRIBED LAND BEING IN THE CITY OF CARLSBAD. COUNTY OF
SAN DIEGO, STATE OF CALIFORNL\.
CONTAINING A TOTAL OF 396 ACRES MORE OR LESS.
EXHIBIT E
ACTIONS. STANDARDS AND PROCEDURES FOR PERMITS
Reference the attached permits as follows:
1. State Water Resources Control Board, WDID No. 937C337203 dated
October 17. 2005;
2. Califomia Department of Fish and Game, Streambed Alteration
Agreement No. 5-122-00 dated June 30,2004;
3. United States Anny Corps of Engineers Permit No. 972020600-SMJ
dated January 5. 2005 modifying Permit No. 972020600-MAT dated
September 30. 2000;
4. Califomia Coastal Commission Coastal Development Pemiit No. A-
6CII-00-087, Notice of Acceptance dated April 25. 2005;
5. City of Cartsbad, Endangered Species Act Incidental Take Penmit No.
HMP 04 -^1 dated December 6, 2004;
6. San Diego Gas and Electric Company, Letter of Pennission for
Grading and Construction of Improvements dated June 23. 2005.
EXHIBIT E-1
10/17/05 09:38 FAX 91626690S3 COPY EDCS PRINTING iaQQl
StaJ Water Resources Control Board
AlanCLIoydPhD
Stcrttaryjar
October 17.2005
Division of Water Qoality
iQOil S»oet«^iffWiM.Cilifcwti 9Stl4 • <91C) 34t-5$3l MaifiatAdtec P.O. B«K 1977'SMnnalabCaGftiaii* 95112-1977 PAX(9l034l-SS«-laieiKtAMiac tM/iwiw.wJtaUMiiktt^
Eawi Addrea: iloiMWteQwjiubiwdi.rt pn
JohnCahill
Carisbad City
1200 Cartsbad Village Dr
Carlsbad. OA 9200S
Armold Sckimaeaeeca
Oowmor -
ECSIVED
OCT 1 7 2005
ruixii' *A ASSOC.
RECEIPT OF YOUR NOTICE OF INTENT
The State Water Resoiuces Cbntrol Board (State Water Board) has received and processed your
NOTICE OF INTENT TO COMPLY WITH THE TERMS OF THE GENERAL PERMIT TO
DISOIARGE STORM WATER ASSOCUTED WITH CCWSmiKmON ACTIVE Accorfingly.
you aro requved to comply with the pemiit reqairemmts.
The WDID identification number 937C337203^
Please use tiiis number m any future communications regarding this pennii'
SITE DESCRIPTION
OWNER: Carisbad City
DEVELOPER: Seraa Constroctioa Inc
COUNTY: San Oiego
SITE ADDRESS: 5800 Hidden VaUey Rd
CarlsbwI. OA 92009^
COMMENCEMENT pAllS: 9/8/QS
EST. COMPUBTION DATE: 07/01/07
When constnictioa is complete or ownershq) has bcQn tnuisferred, dischargers are required to notify tfie
Regiocal Water Boaixl by submitting a Notice of Termhiation (NOT). All State and local requiremeoti.
must be met in accordance with Special Provision >Io. 7 of the General Permit If you do not notiiy the
State Water Board that construction activity has been compteted you will continue lo be invoiced for the
annual fee each October. Please vbit Ihe storm water wd> page at
www.waterboards.ea.gov/stonnwtr/tndexJitmI to obtam an NOT and other stocin water rehUed
informaticm and forms.
If you have any questions regardmg permit requirements, please contact your Regional Water Board at
C85S) 467-2952.
Sincerely.
Storm Water Section
Division of Water Quality
California Environmental Protection Agency
Xetycbd Paper
EXHIBIT E-2
DEPARTMENT OF FISH AND GAME
• Region 5
4949VievvridgeAvenue
;;^an Diego, Calfbmia 92123
,^^58)467-4201
June 30,2004
Mr. John CahiU
City of Carisbad
1635 Faraday Avenue
Carlsbad. CA 92008-7314
RE: City of Carisbad Municipal Golf Course Streambed Alteration Agreement #5-122-00
Dear Mr. Cahill:
Enclosed Is your copy of Streambed Alteration Agreement 5-122-00. If you agree with
the conditions/measures set forth in the agreement, please malce a copy, then sign and
rBf um both copies to our office for signature, at the above address. Written notice of
your intent to commence project activities needs to t>e provided to the Department at
least five days in advance of commencing project activities.
The Califomia Fish and Game Code requires tiiat you notify ttie Departanent in writing -
within 14 days of receipt of this Proposal as to its acceptability. If you do not respond
within tills time period you will lose your right to request binding arbitration. For minor
changes we suggest you contact the person responsible for writing your agreement prior
to sending the written response.
Please be advised the Departanent cannot execute (sign) your Streambed Alteration
Agreement without your certified CEQA (Califomia Environmental Quality Act) document.
Notice of Determination (NOD). Findings, and proof of having paid the CEQA document
filing fee. Also, this Agreement is subject to change upon receipt and review of your
certified CEQA documents. If the project was determined to be exempt under CEQA by
the lead agency, please provide a copy of the Notice of Exemption or other appropriate
documentation.
If you have any questions regarding the proposed conditions please contact me at (858)
467-4223.
Thank you for your cooperation in this matter.
Tamara A. Spear
Environmental Sdentist
Habitat Conservation Planning, Region 5
CAUFORNIA DEPARTMENT OF HSH AND GAME
4949 Viewridge Avenue
San Diego. Califomia 92123
Notification No.5-122-00
AGREEMENT REGARDING PROPOSED STREAM OR LAKE ALTERATION
THIS AGREEMENT, entered into bef^een tiie State of Califomia. Department of Rsh and
Game, hereinafter called ttie Department and John CahlH. representfria ttie Citvof
Carisbad. State of Califomia. hereinafter called ttie Operator, is as t)lfows:
WHEREAS, pursuant to Section Iggi. of Califomia Fish and Game Code, ttie Operator, on
the ll day of Mav. 2000. notified ttie Department ttiat ttiey intend to dh/ert or obstruct ttie
natural flow of. or change the bed. channel, or bank of or use material firom ttie
streambed(s) of. ttie folto^Mng vigfafs): Unff tributan/to tfie Aoua Hedionda
Lagoon, San Diego County. California, Section. Township 12S Range4W
WHEREAS, tfie Department (represented by Tamara Spear) has detennined that such
operations may substantially adversely affect ttiose existing fish and wildltfa resources
within ttie streambed of an unnamed tributary to ttie San Luis Rey River. specHfoalty
Identified as foifows: California onatcatehar. least Bell's vireo. orancetfiroat vjiioteiL
bunrowino owl, white-tailed kite. Coooer's havJc. Souttiwastem willow fh/cat^^ homed laric iogoertiead shrike, yHow warbler, vellow-hreasted chat jfotaiem CaT^
rufous-crowned sparrow, great blue heron, san Dieflo bladc-teaed ra«jgabbii^^
San Pjeqo ppc^t moMse, Sgn PiepQ desert wxfrat. Yurna mvottV bats, NQ^^
mule deer. Cglfornla /^O^Na. Pff MajBiyariita. Lewte'evening prinrose^
spineflower. Western dfehondra. Pecumbent qoMenbusii. Souttiwestem sJnyiSii^
Nuttairs scrub oak and A9hvsplk»-moss, Thesegante an^^^
Diegan Coastal gage ggrub. gouttgrT; Maritiro Chapanrai. Na^e and nonnnia^^ grasslands, SguttiemyVlllQW/Mu^fet Scrub. Souttiem Coastel Fresh%«ter MarahrRinariari
herti. Eucalyptus woodland and disturbed lands.
THEREFORE, tfie Department hereby proposes measures to protect Ish and wildlife
resources during the Operator's w>rk. The Operator herebyagrees to accept ttie foilowing
measures/conditions as part ofthe proposed work.
If the Operator's work changes from ttiat steted in ttie notification specified above
this Agreement is no longer valkf and a newnotification shall be subm'tted to the
Department of Fish and Game. Failure to comply witii tiie provisfons of ttiis Agreement and
with other pertinent code sections, including but not limted to Fish and Game Code
Sections 5650,5652.5937, and 5948, may result in prosecution.
Nothing in this Agreement author'izBs tiie Operator to ta-espass on anyland or
property, nor does it relieve tfie Operator ofresponsibiiity for compliance with applicable
federal, stete, or local lavte or ordinances. A consummated Agreement does not constitute
Department of Fish and Game endorsement ofthe proposed operatfon, or assure the
Departments concurrence witii permlte required finom otfier agencies.
This AqreenyntJ;eQorneS effegtive the date of Departmenfs stanature and temninatA^
December 31. 2003 for project construction onlv This Agreement shall remain in «ffa^ fhr
tiiat time necessan^to satisfy ttie temis/conditions of this AoreemenT
Page 1 of 5
1^
STREAlUbED ALTERATION AGREEMENT #5-122-00
1. The foltowing provisfons constitote ttie limit of activities agreed to and resoled by this
Agreement The signing of ttiis Agreement does not imply that ttie Operator is precluded
firom doing ottier activities at tfie site. However, activities not spedfically agreed to and
resoh/ed by tfiis Agreement shall be subject to separate notification pursuant to Fish and
Game Code Sections 1600 et seq.
Proiect Location and Description:
2. The Operator proposes to alter the sti^eambed of an unnamed tributery to Agua
Hedfonda Lagoon to accommodate tiie construction of a Munidpal Golf Course whtoh
will include an 18-hole champtonship golf course, dubhouse. maintenance facility, driving
range, conference center, and pads for industilal/golf related uses. The project is
located approximately one mite to tiie east of Interstete 5. Palomar Airport Road fonns
the southem boundary, Hklden Valley Road forms tfie westem boundary, and the
souttiem edge of grading for tfie future extensfon of Faraday Avenue fonns the northem
boundary. The 396-acres project site is focated in the northwestem quadrant of the City
of Carisbad. San Diego County, impacting 0.91 acres of streambed.
3. The agreed woric indudes activities assodated witti No. 2 above. The project area is
focated in an unnanfied ephemeral drainage, tributary to Agua Hedionda Lagoon,
San Diego County. Specific woric areas and mitigation measures are described on/in ttie
plans and documente submitted by the Operator, induding an Environmentel Impact
Report, and shall be implemented as proposed unless directed differentiy by tills
agreement.
4. The Operator shall not impact more tiian 0.91 acres of streambed comprised of 0 46
acres mute fat scrub, and 0.45 acres of unvegeteted channel. Impacte are consfoered
pennanent and will be mitigated at a 3:1 ratio for mule fat scrub and 1:1 ratio for
unvegeteted channel, for a mitigation acreage requirement of 1.83 acres.
MitlQatlon:
5. As mitigation for the projed. the Operator shall restore tiirough creation and
enhancement, 1.83 acres of comparabte wetiand habitat on-site. The Operator shall
submit a final Mitigation and Monitoring Ran within 60 days of signing this Streambed
Alteration Agreement Department approval of that plan is required prior to project
Initiation/impacts.
All revegetetion shall be installed no later ttian Mareh31.2QQ9.
6. The Operator shall mitigate at a minimum 5:1 ratio for impacts beyond those
auttiorized In tills Agreement. In ttie event ttiat additional mitigation is required, ttie type
of mitigation shall be detennined by ttie Departinent and may indude creation,
restoration, enhanc^ement and/or preservation.
Veaetetlon. Revegetation and Restoration!
7. All mitigation planting shall have a minimum 100% sun/ival tiie first year and 80%
sunm/al thereafter and/or shall attein 75 % cover of native wetiand spedes after 3 yeare
and 90% cover of native wetiand spedes after 5 years. If tiie sun/h/al and cover
requirements have not been met. the Operator is responsible for replacement planting to
achieve these requiremente. Replacement plants shall be monitored witfi tfie same
survival and growth requiremente for 5 years after planting. At tfie completton of ttie
monitoring pericx), tiie mitigation site shall have received NO supplementel inigation for a
period of two consecutive years, nonnative plants shall not make up more than 5% of ttie
Page 2 of 5
^3
STREAMBED ALTERATION AGREEMENT #5-122-00
entire cover of the site, no nwre ttian 5% of ttie site shall consist of bare ground and site shall be tree of invasive exotic ptente spedes. ««lu ^iw
8. All planting shouki be done between Odober 1 and April 30 to teke advantage of ttie winter rainy season.
9. An annual report shall be submitted to ttie Department by January 1 of each vear for
5 years afer ttie on-site restoratfon/planting. This report shall Indude ttie sun/h/al and
percent cover. The number by spedes of ptente repteced. an ovennew of ttie
revegetetion effort, and the mettiod used to assess ttiese parameters shall also be
induded along with photos from designated photo stetions.
Woric Period and Time Umfte:
10. The Operator shall not rernove vegetetion witiiin the stream firom Febmary 15 to September 1 to avoid impads to nesting birds. •/ lu
Habitat Protection:
11. The Operator shall have a qualified bfologist onsite daily during any impacte to
vegetetton for the purpose of monitoring and enfordng conditions of ttiis agre^Sit
1?' P'^P^I^^" ^ ^^^.39 nmoff from steep, erodibte surfaces will be diverted into steble areas wrth little erosion potential. Frequent water checks shaU be placed on dirt roads, cat tiacks. or ottier woric tiails to conttol eroSSi
idiaL'l^fl^rilll^^^^^^
stn^^ttiff^;
14. This Agreement does not au^rize ttie constiuction of any temporary or pennanent
dam. stnidure, flow restnction or fill except as described in ttie OpeSor's notiffoatfon
Equipment and Acceaer
15. No equipment shall be operated in ponded or flowing areas.
^^^^«g'"9^storage areas for equipment and materials shall be focated outeide of ttie
17. Access to the woric site shall be via existing roads and access ramps.
^K" iftP^ ^"tl!?"^S*" an<^/or operated wittiin or adjacent to ttie stream
Turt)ldlh//Siltetion:
Page 3 of 5
7^
STREAMBED ALTERATION AGREEMENT #5-122-00
20. Water conteining mud. silt or otiier pollutents fiiom aggregate washing or ottier
activities stiall not be allowed to enter a lake or flowing stream or placed in focatfons that
may be subjeded to high storm fiows.
Pollution. Utter and Cleanup:
21. The Operator shall comply witti all litter and pollution tews. All contiractors.
subcontradors and emptoyees shall also obey ttiese laws and it shall be the
responsibility of the operator to ensure compliance.
22. Spoil sites shall not be focated wittiin a stieam. where spoil could be washed back
into a stieam. or where it could cover aquatic or riparian vegetetion.
23. Raw cement/concrete or washings ttiereof, asphalt paint or ottier coating material
oil or ottier petioleum produds, or any other substences whteh could be hazardous to '
aquatic life, resulting from projed related activities, shall be prevented from
conteminatfng ttie soil and/or entering ttie waters of ttie stete. These materials, placed
within or where ttiey may enter a stteam/teke. by Operator or any party woricing under
conta^d, or with the permissfon of ttie Operator, shall be removed immediatety.
24. No debris, soil, sift. sand, baric, slash, sawdust, rubbish, cement or concrete or
washings thereof, oil or petnoleum producte or other organic or earthen material from any
oonstiruction, or assodated activity of whatever natijre shaH be alfowed to enter into or
placed where it may be washed by rainfall or runoff into, watera of the Stete. When
operations are completed, any excess materials or debris shall be removed from the
woric area. No mbbish shall be deposited wittiin 150 feet of ttie high water marie of anv
stream or lake. '
26. No equipment maintenance shall be done wittiin or near any stream channel where
petaoleum produc^te or other pollutente from the equipment may enter these areas under
any flow.
Qth^n
26. The Operator shall provide a copy of this Agreement to all contractors,
subcontractors, and the Operator's project supervtoors. Copies of the Agreement
shall be readily available at work sites at all times during periods of actWe work
and must be presented to any Departinent personnel, or personnel from another aaencv upon demand. '
27. The Department reserves the right to enter tfie projed site at any time to ensure
compliance with terms/conditions of this Agreement.
28. The Operator shall notify the Department in writing, at least five (5) days prior to
Initiation of construction (project) activities and at least five (5) days prior to
completion of construction (project) activities. Notificatton shall be sent to ttie
Department at 4949 Viewridge Avenue. San Diego. CA 92123 Attn: Tamara A. Spear
29. It is understood ttie Department has entered into tills Stieambed Alteration
Agreement for purposes of estebllshing protedive featijres for fish and wildlife. The
dedsfon to proceed witfi the projed is the sote responsibility of the Operator, and is not
required by ttiis agreement. It te furtiier agreed all liability and/or incurred cost
related to or arising out of tfie Operator's project and the fish and wildlife
protective conditions of this agreement, remain the sole responsibility ofthe
Page 4 of 5
IS
STREAMBED ALTERATION AGREEMENT #5-122-00
Operator. The Operator agrees to hokl harmless ttie Stete of Califomia and ttie
Department of Ffeh and Game against any related daim made by any party or parties for
personal injury or any other damages.
30. The Operator may request one extensfon of tills agreement, subjed to Departtnent
approval, prior to its tennination. The extensfon request and fees shall be submitted to
the Departtnent's Regfon 5 office at ttie above address. If tiie Operator faite to request
the extensfon prior to the agreements tennination, tfien tfie Operator shall submit a new
notification witti fees and required infomiatfon to tfie Department Any activities
conduded under an expired agreement are a vfolation of Fish and Game Code Sedfon
1600 et seq.
31. The Department resen/es the right to suspend or cancel tiiis Agreement for ottier
reasons, induding but not limited to the following:
a. The Department determines that ttie information provided by the Operator in support
of the Notificatfon/Agreement fs incomplete or inaccurate;
b. The Department obteins new infonnation tfiat was not known to it m preparing ttie terms and conditions of the Agreement;
c. The projed or projed activities as described in tiie Notification/Agreement have
changed;
d. The conditions affecting fish and wildlife resources change or the Department
determines tiiat projed adivities will result in a substential adverse effed on the
environment.
32. Before any suspension or cancellation of ttie Agreement the Departinent will notify
the Operator in writing of the circumstences which the Departinent belteves warrant
suspensfon or cancellation. The Operator will have seven (7) woricing days from the date
of receipt of this notification to respond in writing to the drcumstences described in ttie
Departmenrs notification. During the seven (7) day response period, the Operator shall
immediately cease any projed adhdties which the Department specified in ite notificatton
The Operator shall not continue the spedfied activities until that time when ttie
Department notifies tfie Operator in writing tiiat adequate mettiods and/or measures
have been Identified and agreed upon to mitigate or eliminate tfie signifrcant adverse
effed.
CONCURRENCE
City of Carisbad Califomia Dept of Rsh and Game
(signature) (date)
John Cahill
(titte) m^^^(^^p4L y^r^cp bf
CF. Ravsbrook. Reotonal Managef
(titie)
Page 5 of 5
1w
EXHIBIT E-3
DEPARTMEfrrOPTH^AFIMY .
LOe/tflGUS OiatnCT, OCMVS or ENQi^^
PJ>M0CSkl711 •
LOS MiOQLiik CAUranNU I00«»412l
fmvf-n JanuMy5,2005
O0kfi of the Chief
Kegulatcyiy Brindi
aty of Carisbad Engineenng Department
Attsntkxi: JoJmCahiU
2075 Las P^ilmas Ddve
Carisbad, Califinzda 92009-1519
PearMr-CahiD:
Relerence is made to your request of Mardi \6,1999 to amend Ftrniit-No. 972020600-SNi9
whidi authorised vou to impact 2.95 acres of wcOaiuU and 1^
f^»rfqhftd Mtmldpal G<df Couae whkh would faipact an uwiagfced tributary to tiiB Agua
Hedicnda Cieek iu Carisbad*. San Diego Connty; Califocnia.
Utider die provisions of 33 Code ol Federal RegulatiOEis 325.6(d)* start date is to
leinasn the same and te completton date is extended firom August S, 2005 to Augost S, 2007.
l^dcr te pityirislons of 33 Code of Federal Regulations 325.7(b)> your pennit is modified
as follows:
Vou axe herriyy auterized to construct te Carisbad Monic^al Golf Couzse on a 418-aae
:ptB located in te norttvwest quadrant of te City of Carlsbad. Palomar Airport Koad fonns te
soutem boundary of te sitt« Hidden VaUcy Road forms te eastern bow
southem edge of giading for te tx tension of Paraday Avenue foixne te ncrtem boundary.
The xiortesn portion of te site is in te Ague Hedionda v^taited and drains into
Hedknda Lagoon. The remainder of te site is in teEndnasCceekwatented* which drains
throu^Endnas Canyon tote Padfic Ocean. In addition to te la-hole dumpionsK^ gotf
course, te proposed project indudes a dubhouse, maintenance facility, driving range,
conierence center, and pads for industiial/golf course uses.
The Carisbad Golf project received te Incidental Take Pennit ^ram te VS. Fish and
Wildlife Senrice on December 06,2004.. Also, te US. Fish and VHldiife Service concurred on
PecenOTer 15,2004 tet te project is consistent v/ilh te Qrishad Habitet Management Plan.
Tbciefote, Special Condition 1 of te original permit dated August 2^ 2000, is no longer
applicable.
Ihe permittee shall now impact no more ten 0.91 acre of waters of te United States.
Spedfically, te permittee shall impact no more diart 0.46 acre of wetland Waters of te U.S.
17
-2-
and 0.45 aoe of non-weUand Waters of teU3b This leplaoes Special Condition 2 of te
original pennit dated August 2,2000.
The ptnnittec shall mitigate impacts to a91 aae of waten of te JJ3, (induding wetland
and non-wedmd wateis) by the on-site oeation of 1.83 aaes of riparian habitet in acxscdance
with te Gty of Carlsbad Revised Golf Course Riparian Mitigatian FItti, dated Deoembv2003,
Tlds replaces Spedal Condition 3 of te original petndt dated Augttst 2,2000.
Ihe terms and ctmditions of Fexmrt hTa 972020600-53idX in fun force and effect
Please note tet a copy of Ods letter is being forwarded to Hald SupanHw^ Br^Tng^f^j
Services Reid Office, US. Hah and Wildlife Servke, 6010 IBdden VaHey Road, Carlsbad,
CaUlomia 92009; UJS.£nviionirieriialPh>ltdion Agency, Attn: Mr. Tfan Vandlteakt
Supervisor, Wedands Regulatoty Offlce (WTRrS), 75 Hawteme Street San PHndsco^
CaEfoxnia 94108; California Department oC Pish ami GairiesrAttruOiariesRayibrool;, 4949
View Ridge Ave., San Diego, Califomia 92123. CalilotBia Regional Water QuaKtyCteiliol
Board, Region 9, San Diego, Aim: Mr. Midwel McCann, MoMger* Watershed Branch 9174 SW'
Park Court Suite 100, San Diego, CaUlbtnia 92123
Sinoerety,
David J-Castuon
Acting Chief, Regulatory Brandt
ni
LOS ANGELES D/STRICT
U.S. ARMY CORPS OF ENGINEERS
Pcnnittee:
Pemiit ^^umber:
Issuing Office:
DEPARTMENT OF THE ARMY PERMFF
aty of Carlsbad
97202060&MAT
Los Angeles District
Note: Hie term "you" arvi its derivatives/ as used in Ihis pennit means te permittee or ariy
future transferee. The texm "this office^ refers io te appropriate district or division office of te
Corps of Engineers having jurisdiction over te permitted activiiy or te appropriate official
acdiig urider te audiodtf of te conunaondiiig officer.
You are aulhorized to perfonn work in accordance with te terxns arid condttior»
Project Descriptioru To construct te Carlsbad Municipa] Golf Cotzrse projed in te City of
Carlsbad, San Diego County^ Califoniia,. as shown on te attadied drawings.
Piojed Legation: In unruuned tributaries to Agua Hedionda Creek and Ehdri^
of Carisbad, San Diego County, Caiifornia. the 418-9cre site is k)cated inte northwestem
quadrantofte Qty of Carlsbad. Palomar Airport Road forms tesoutembouiidary of te
site^ Hidden Valley Road forms te eastern boundary, and te soutem edge of grading for te
future extension of Faraday Avenue forms te nortem boundary. The nordiem portion of te
site is inte Agua Hedionda watershed and drains irito Agua IMiOTKia Lagoon. The
remainder of the sits is inte Encinas Creek watershed, which drains through Endnos Canyon
(located on te south side of Palomar Road) to'te Padfic OcearL
Permit Conditions:
1 Your use of te permitted activity must not interfere witti te public's rigjht to fiee navigation
on all navigable waters of te United States.
2 You must have a copy of tfiis penmit available on te vessd ised for te auterized
transportation and disposal of dredged materiaL
3 You must advise tihis office in writing, at least two weeks before you start maintenance
dredging activities under te authority of this permit
4 You mtistiristaU arid maintaifv at your e?qpense, any safety fights arid rigiuJspresa
United States Coast Guard (USCC^, .teough regulations or otherwise, on your auterized
facilities. The USCGinay be reached at te followirig address arid tekphoivernmter.
5 The condition below will be used when a Corps pennit auterizes an artifidal reet an aerial
transmission Ene^ a submerged cable or pipeline, or a structure on te outer continental shelf
National Ocean Service (NOS) has been lustifled of this auterization. You must notify
>K)S and diis office in writing, at least tiAW weeks before you begin wr^
te activi^ auteri^ by this permit Your notification of completion muek irulttde a drawing
whidi certifies te location and cor\%uration of te coopleted activiiy (a certified pennit
drawing may be used). Notifications to NOS will be sent to te foUowing address: IheDiredor,
Natioiial Ocean Sendee (N/CG 222), Roi:kvi]le,
6 The foltowing condition shouki be used for every perrnit where legal recordation of ^
would be reasonably practicable and recordation could put a subsequent purchaser or owner of
property on notice permit cMiditions.
You must take te actions requited to record this permit widi te Registrar of Deeds or
other appropriate official charged witfi te responsibility for maintaining records of title to or
interest in real property.
General Omditions:
1. The time limit for conpfetingte auterized activity ends on August 2; 20(S Ifyoufindted
you need more time to coirplete te auterized activity, submit your request for a time extensicTn
to dus office for consideration at least one month before te above dale is readied
2. You must maintain te activity authorized by this permil in good condition and in
cordbimarKe with te terms and conditions of tfiis permit You are not relieved ol this
requirement if you abandon te permitted activity, altfiough you may make a good £^th transfer
to a Ihinl party in coce^tiAnf* vriAi General Condition 4 bdaw. Should you. wish to emtm to
maintain the authorized adivity or should you desire to abandon it without a good &itfi transfer,
you rrmst obtain a rnodification fiom tfiis perrnit fiom t^
tearea.
3. If you discover any previously unlmown historic or ardieobgicalrem^
te adivity autfru>rized by tfus pennit youmust immediately notify this office of what you have
found. We will initiate te Federal and state coordination required to detennine if te remairtt
warrant a recovery effort or if te ^te ls eligible for listing in te National Register of Historic
Places.
4 If ycKi sen te properfy assodated witfi (his perrnit you must obtain te signs
owner in te space provided and foTward a copy of te permit to tfus office to validate te
transfer of Otis authorization.
5. If a coivditioried water qualify certification has been issued for your project you must conpfy
witfi te conditions specified in te certification as special condison to tfus pennit For your
convenience, a copy of te certification i% attached if it contains such conditions.
6. You must aOow representatives from this office to insped te autfioiized activify at any time
deemed necessary to ensure tet it is. being or has been acconplished with te terms and
conditions of your permit
Special Conditions:
1. The perrriitteeshaU obtain''teke''auterizatkm under teEndarigere^
any and all impacts to threatened or endangered spedes prior to initiating
weters/wedandsinqwdsau^orizedbytiiisIP. Hie permittee shaU submit verificatiosi
of corrq^liance witf\this perinit condition prior to iriiliating waters/w^
auterized by this IP. This authorizatkm may be obtained by tefoDowiiigmearis: a)
Adoption arid ^roval of te Ofys Habitat Macuigement Plan b^
CDK. (te Cify wouki then ^sue tfieir own take authorization)/orb) Individual
Sedfon 10 permit issued by te USFWSL
2. The permittee shall impad no. more than 2.95 acres of waters of te United States
(irichiding wetlands arid non^tiaiid waters),
barriers) te Emits of te consjtnictfon corridor to prevent additional waters/wedands
iirqpacts and te spread of silt from te construdion zone into adjacent
waters/wetlands. If waters/wedands impacts occur outside tese limits, all work
shaU cease, and te Corps shall be notified immediately. Any waters/wetlands
Inipacts that occur outside the fenced and mariced limits shall be mitigated at a
minimum 5:1 ratto, and ahaU be subjed to te requirements of all te special
conditions listed befow.
3. The permittee shaUiniiigateisipacts to Z95 acres of waters of te United Stetes
(including wetlands and nonrwetland waters) by a) creating 43 acres of riparian
habitat OnrSite adjacent to teOmrion road r^Mdian site arid existirigMfl^^
riparian corridor; and b) restoiing/enhandng 4.0 acres of wetland habitat ofGdte at te
Carltassite. Mitigation gradli^plarilirt& arid irrigation shaD begin prior to and/
concunent witti te planned date of inltiatbig waters/wetlands iirmacts autenizedby
tttisIP.
4. A final conceptual wetland mitigatton plan based on te Carlshuf Golf Course
Composite Wetlands MxtigatUmrPlan (P&D Envirorunental Services, May 2000) shaUbe
subsnj^dJo te Corps for r^w and approval 30 days prior to initiating
waters/wetland impacts (cc USFWS and EPA). These final conceptual plans shall
be prepared in stand accordance with the Corps' HoHtot MiH^erioii and24imitoriug
Proposal GttideUnes (|une 1^ 1993). In addition to te information presented in
P&iys draft May 2000 mitigation plan, it is te Corpus understanding tet te
Carisbad Golf on-site mitiga^ wiE conform, to te extent practfcable, to te
specifications outlined in theCannon Road Mitigation Flan (specifically te
"Addendum to the Conceptual Mitigation Plan for Cannon Koad Extension Project Reaches 1
3
and TT dated February 20,1998). The final ccmceptual mitigation plan shall indade
and incorporate aU sections of te Canon Road mitigation plans tfttt pertain to te
Carlsbad Golf projed. In addition, aU addendums submitted tote Corps shall be
iiKluded in tefirial conceptual plan. The iirial conceptual plan shaE indude details
of te offsite restoratton/enhancement iiKluding focatiofv methods of removal,
replanting strategies and techniques, success criteria (performance standards),
monitoring/maintenance methods and schedules^ Additional content and
requiremente for te final conceptual plan are listed befow in spedal conditfon
rtiunberfive. The final conceptual plan shaUbe submitted as onecoDt^lete and
comprehensive document for Corps review 30 days prior tp te planned date of
initiatirigwaters/wetlaridsiirpads authorized by this IP. No impads to
waters/wetiands shaE occur until after te Corps approves te conceptual plan.
5. Final wetland construction plans, ^pedfijcations and drawings based cn te Corps-
approved final conceptual wetland mitigation plan shall be submitted to teCocps for
review and approval 10 days prior to initiating wetland impacts. The final plans and
specifications shaE also indude:
a) Afl final spedfications and topography-based layout grading; planting, and
irrigation.
b) A provisixm tet all wetfand creation areas shaE be graded tote same
elevation as te adjacent exisfing wetlands and/or within one foot of te
groundwater teble, and shaU be left in a rough grade stete with topographic
relief (induding channels) tet mimks natual wetland topography.
c) Planting pallets (pUmt species, size, and number per acre) and seed mix (plant
spedes and pounds per acre). AU planting shafl be installed in a manner tet
mimics natural plant distribution (e.g., ranidom and/or aggregate dislributfons
rattier than uniform rows). Plantings shaU generaUy be placed within te
mitigatiQn areas along hydrologic gradiente tet make ecological sense in
relation to eadi plant's facultative category (e.g. obHgate, facultative, etc.).
d) A provision tet on te first anriiversary of teiiiitialp]arilirig,aE dead plants
shaUbe replaced unless their function has been replaced by natural
recruitment as verified by te Corps.
e) A final irrqplementadon sdiedule tet iiidicates when aU wetland/waters
impacts, as weU as mitigation site grading, planting, and irrigation wiU begin
and end.
iO Five 3rea» of explicit and measurable success criteria for wetland creation,
restoratioit and enhancement areas. The pennitee ahaU copdact a minimum of
five years of maincenance and monitoring of wetiand mitigation areas. If success
criteria are met eariier and aU artificial water siqppiy to tfie site has ceased fbr a
minimum of two years^-the rite may be coiiridered» at tfie Corps discretion, fbr
eariy iqiproval. In addition to the success criteria outlined in tiie final mitigatfon
soidTn&mtoring plan, eVideoceDf wetland hydrology and natural reciuitoient of
native wedand vegetatfon must be present on-site in order to obtain final Corp
^iproval of te niitigation areas. Annua] mitigation maintenance and mcmitoring
reports shaU be submit to te Coips (cc: USFWS and EPA).
6. Planting and irrigation shaU inot be installed until te Corps has approved te
mitsgAiioA site jading. Tho penxuM«« ichall contect dwi Cbtp* Cor verification cA
proper grading of te mitigation site a minimum of 15 days prior to te planned date
of initiating planting.
7. If changes are made to te mitigation design during its inplementatiarv te permittee
ShaU immediately notify te Corps. If dianges are detennined to b« greater than
minimal by te Corps, as-built drawings of te mitigation grading;, planting and
irrigation shaU be submitted to te Corps (cc USFWS and EPA) with^ 30 days of
implementing te redesigned mitigation.
8. Tlie permittee shaE staff a qualified biofogist on ate duiirigaU phases of constructi^
and mitigation implemeniaiion to ensure cost^Uance vddx te requixemiente of tfiis
pennit sfful teU produce a report tet documenb te timirig and everits of te final
implementation schedule. The permittee shaU submit te biologist's iiame, address,
telephone number, email address (if available), and workschedule on te prpfed to te
. Ccopiipifor to te planned date of initiating waters/wedands impads auterized by
thisIP. The periitttfeeteU report any vfolatkm tote Corps witeiorw day of Us
occurrence.
9. The petxiutteeshaUsubrnit a report tote Corps within 30 days of con^letxm
waters/wedands impacts authorized by this OP tfiat documents compUanoe wilh aU
permit conditions. The report shaE indude photogn^ showing fenced and marked
limits of impacts to aUCbrps jurisdictional areas, a^bufltconstnictian drawings and a
summary of aU project activities.
10. The permittee shaU not remove/impad vegetetion fiom development areas fiom
March 15 to September 15 to avoid impacts to nesting birds. Any habitet restoration
and creation activities also shaE be tirried to avoid disturbance of Federalfy-listed and
oter migratory nesting birds (ie., avoid disturbance fiom March 15 through
September 15). However, te permittee xxuiy be authorized to remove/impact
vegetetion within development and restoration areas duiir^ this time ifa qualified
bixdogist surveys te proposed work area irnrriediatdy prior to te vegetation removal
andoondudes tet no impacts to nesting birds wiU occur. The results of te survey
dtiaE be provided to teCorfw fbr review and appioval prior to initiation of
vegetation removal A qualfiGted biologist shaUnioiiitorte vegetetion removal fo
ensure te no irx^ads to nesting birds wifl occur.
11. The perrrdttee shafl ensure tfiot water quidify is rriaintaiiiedwithtetechaiirid at ar^
downstream of te projed site by incorporating appropriate design efements into te
project (eg., xruuniaining a soft bottom chaiuiet installing detention basins, etc.)
12. The perxruttee shafl preserve in peipetuify sdi mitigation areas by placing a biol^
. conservation easernent in favor of an agent approved byte Cor^
penni^sest^ submit a draft easernei^
impacts. The form and content of teeasemeitf shafl foUowteeiidosedexarnple, arid
must be i^roved by te Corps prior to its executicxL The easement shafl stete deaxfy
tet no oter easements or activities tet would result in soil disturbance and/or
vegetetion removal, except as approved by te Corps, shafl be allowed witfidn te
biolc^al conservation easement area. The pemiittee shafl submit te final easement wifiiin 10 days of leoerving Corps spptavaH of te draft easement
5
?3
Further Informatioa:
1. Congressional Authorities. You have been authorized to undertake te activify described
above puisuant to:
0 Sectk3nl0ofteRh^andHaxborAdofl899(33 U5.C403).
(X) Sectton404of teClean Water Ad(33U5.C 1344).
0 Sectkvi 103 of teMaririe Protection, Research and Sanctuaries Ad of 1972^ U5.C 1413).
Z Limits of tfiis authorizatfon.
a. This permit does not obviate te need to obtain odier Federat state, or local
autfK>rizations required by law.
b. This perrnit does rvot grant ariy properfy rights or exclusive privileges.
c This pennit does not auterize any injury tote properfy or rig^ of others.
d. This permit does not autfiorize interievence with any existing, or proposed Federal
project
3. Limits of Federal Uabilify. In issuing tfiis permit, te Federal Government does not assume
any liabiflfy for te following:
a. Damages to te permitted projed or uses tfiereof as a result of other pemiitted or
urtpermitled activities or from natural causes.
b. Dainagestoteperxnittedprojectorusestfiereof as a result of current or future activities
imdertaken by or on bdialf of te Unifed States in te public interest
c. Damages to persorts, property, or to otfter pennittad or unp«nxutted adtvitiaa or
structures caused by te activify autfiorized by this permit
d. Derign or coristxuctiondefiderides assodated witfi teperinitled woric
e. Daiiiage claims associated witfi ax^ future modification^ suspension., or
penmt- * . -
4. ReUaxKe on Applicant's Data. The deteimiruition of tfiis office tet issuance of this permit is
riot coritraiy to te public iriterest was rnade in xeliaiKe on te information you p^
5. Reevaluation of Permit Dedsfon. This office may reevaluale its dedsfon on tfiis pennit at any
time te dxcuxnstances warrant Gxcuinstances tet could require a reevahiationiridude, but axe
^1
not limited to, te foflowing:
a. You fail to comply with te terms and conditions of tfus permit
b. The information provided by you in support of your permit application proves to have
been false, incomplete, or inaccurate (See 4 above).
c Significant new information surfaces whidi tfiis office did not consider in reaching te
original public interest decision.
Stxh a reevaluation may result in a determination tfiat it is appropriate to use te su^Tensioiv
oiodificatioiv and revocation procedures contained in 33 CFR 325.7 or enforcement procedures
sudi as those contained in 33 CFR 326.4 and 3263. The referenced enforcement procedures
provide for te issuance of an administrative order requiring you to ooir^fy with te tenns and
conditions of your permit and for te initiation of legal action where ai^piopriate You wifl be
required to pay for any corrective measure ordered by tfils office, and if you fsdl to coir^fy with
such directive, diis office nuy in certain rituations (sudi as tfiose spedfied m 33 CFR 209.170)
accorr^Esh te corrective rneasures by coritract or otherwise arid bifl you fbr te C(^
6. Extensions. General conditfon 1 estabUriies a time Emit for te coir^lelion of te activify
authorized by tfiis perxnit tAiIess tere are drcumsfamces requiring dther a proxnpt co^
of te autfiorized activify or a xeevahsation of te pubEc Interest de^ksi, te Corps wifl normaUy
give you favorable consideration to a request for an extensiflm ci fete tiww Hmit
Your signature below, as permittee, indicates tfiat you accept and agree to con^fy wttfi te terms
axid conditiDns of tfiis pennit
5^
Has permit becomes effective whenteFederal official, designated to ad for te Secretaiy of te
Army, has signed befow.
DATE ^ GeofgeLBeams
Chief, Constfudion-
Operations Division
When te structures or work authorized by tfils permit are stiU in existerxe at te time te
properfy is traiisferred, te tenns and condxtfons of this perxnit WiU continue to be b^^
new ownst(s) of te properfy. To vaUdate te transfer of tfus permit and te assodated Habflities
associated wiih compliance with its terms and conditkins, have te transfeRe sign and date
befow.
TRANSFEREE OATE
Apr-25-05 02:25PB fraiir^}9 (Uf im 9.14 rOf ^404
EXHIBIT E-4
..^ n» cAUI>0>>«A^TWB Mi»$00»C« AQgWCT
.iJoiFORNIA COASTAL COMMISSION
kHonooAitaA
TS MflTWJrouTiw aovf, suna i«
^<DieoacA ni«M«i
7S9*zne
City ofCarlsbad
Attn: John Cahill
1635 Faraday Avenue
Carlsbad, CA 92008
r>,.^ I^ppl25.2005
Appli-"^ r?^^fC!flrlshad
>jnTTCE OF ACCEPTANCE
Document or Plans: i Water QnaEtv Monitoring Plan dated Nov€an1?<?r 1 g. ^004.
Twf ^ Pest Mi^iinm?^* ^7.2004 ^. Tec^grf AdvMgY
A^TTT^Lr^^^ 4. Final devctoiii^li^ that m
Irfllrf w W «^tTol Plans, bridge olans. rmnfniT Nation nlanS. <1nYm8 TOEfl
^^IIS wS^fefji^^^^ Hv^|^rv^^«ort and Storm Water
y)I";yent Pin m?^ fi^sedNovemba^l. <^ Rnwnan
fvinlii TTnlmdj Mi^ff«*''""^'^*tori"' Program dnted TunnwTY W5, 9. Rwrd^tipn Qf
nfTffi- ip Ped|fta^* Open Soace and CQn$«rvattqn &^s«aatti
Submitted in compliance with Special CondidonCs) No(s).: It 2.?, 4. Sc^t 7i 8i 10.14
of Coastal Development Pennit No. Airfr-CP-QQ-QS?
Remaining Spedal Conditxon(s):
Material submitted in conq?Hance witfi said Spedal Coiiditic«(s) ofyour development
fvajnit has been reviewed by the District Director and ^
Midcondirion(s). Your submitted material and a copy of tfiis tetter have been made a
pari of te pennanent file.
Sincerely,
(a-VSm OiesiALBEVCiirhfead OetrCowaa NOA.doc)
Deborah Lee
D^uty Director
STATE OF CALIFORNiA - THE RESOURCES AGENCY GRAY DAVIS. GovBmor
CALIFORNIA COASTAL COMMISSION
San Diego Coftst ATM OMc*
dSP^ Melropoiltan Oriv*. Suits 103
M)an Oiago, GA 92108-4421
^19)767-2370
Page: 1
Oate: August 28,2003
Permit Applk»tion No.: A-6-CII-00-087
COASTAL DEVELOPMENT PERMIT
On August 8, 2003, the Califomia Coastal Commission granted to
City Of Carlsbad, Attn: Michael Holzmiller
this permit subjed to ttie atl^ed Standard and Special condrtfons, for development consisting of
Development of ari IB hole championship golf course, clubhouse, parking lot,
maintenance facllltieis, driving range, conference center and pads for future
industrial/golf related uses on 397 acre site.
more spedfically described irt the application filed in the Commisston offices.
The deveiopment is within tfTe coastal zone at
North of Palomar Airport Road and east and west of College Boulevard, Mello II,
Carlsbad, (San Diego Counfy)
Issued on behalf of the Califbmia Coastel Commission by
PETER M. DOUG
Executive Diredo
By: Keri Akerj
Coastal Pro
ACKNOWLEDGMEINfT:
The undersigned permittee acknowledges receipt of this permit and agrees to abide by all terms
and conditions thereof.
The undersigned pemiittee acknowledges that Govemment Code Section 818.4 whfch stetes In
pertinent part ttiat: "A Pubiic entity is not liable for injury caused by the issuance... of any permit
.." applies to the issuance of this pennit.
IMPORTANT: THIS PERMIT IS NOT VALID UNl^SS AND UNTILA COPY OF THE PERMIT
WITH THE SIGNED ACKNOWLEDGMENT HAS BEEN RETUI^Ml^ TO THE COMMISSION
OFFICE. 14 Cal. Admin. Code Section
ML
'ate
Page: 2
Date: August 28,2003
Permit Application No.: A-&dl-00-087
STANDARD CGNDITIONS:
1. Notice of Receipt and Acknowledgment The pemiit is not valid and development shall
not commence until a copy of the permit, signed by te penmittee or auttiorized agent
acknowledging receipt of the pernilt and acceptance of the terms and conditions, is
retumed to ttie Commissfon offtee.
2. Expiration. If devefopment has not commenced, te permit will expire two yeare from te
date on which te Commission voted on tfie application. Development shall be pursued in
a diligent manner and completed in a reasonable period of time. Appiication for extenston
of the permit must be made prior to the expiration date.
3- Interpretation. Any questions of intent or interpretetfon of any conditfon will be resolved
by the Executive Director or the Commissfon.
4. Assignment The pennit may be assigned to any qualified person, provided assignee files
with the Commissfon an affktevit accepting all temis and conditfons of the pennit
5. Terms and Conditions Run with the Land. These terms and conditions shall be
perpetual, and it is the Intention of ttie Commission and the permittee to bind ali future
owners and possessors of the subjed property to the terms and conditfons.
SPECIAL CONDmONS;
The pernnit is subjed to the foltowing conditions:
1. Final Deveiopment Plans. PRIOR TO ISSUANCE OF THE COASTAL DEVELOPMENT
PERMiT, tiie applfeant shaH submit to ttie Executive Director for review and written approval,
deteiled final plans for te proposed development tet indude site, tHiikiing, grading and drainage
plans. Said plans shall be In substantial conformance witti ttie plan entitled "City of Carisbad Golf
Course Revisions" submitted with LCPA 1-03B (Habitet Management Plan) on February 7,2003
and shall comply with the following:
a. There shall be no impads to soutem maritime chaparral habitet wittiin te Coastal Zone
portion of ttie project. Impacte to coastel sage scrub shall be consistent with the
approved development plan and shall be mitigated as addressed in Condition #2 below.
Any temporary impacts to wettand and/or riparian areas for ttie purpose of construding
golf cart path crossings shall be restored as addressed In Condition #3 below.
b. The conservation and development areas for the golf course property shall be consistent
with the gotf course hardline map (Rgure 8 Revised) in te Cify of Cartsbad Habitet
Management Plan (HMP). Areas shown for conservation shall not be impacted or
disturbed except for revegetetion, restoratfon and ottier similar adivities related to
mitigation. Areas shown for impad may be folly developed with appropriate mitigatfon.
The permittee shall undertake the devekjpment in accordance with the approved plans. Anv
proposed changes to ttie approved plans shall be reported to te Executive Director. No changes
Page: 3
Date: August 28,2003
Pennit Applk:ation No.: A-6-Cii-00-087
to te plans shall occur witeut a Coastel Commissfon approved amendment to this coastal
development pennit unfoss te Executive Diredor detenmines tet no amendment is legally
required.
2. Mittaation for Upland Habitat Imoad^: PRIOR TO ISSUANCE OF THE COASTAL
DEVELOPMENT PERMIT, ttie applk:ant shall submit to ttie Executive Diredor for review and
written approval, a final detailed coastel sage scrub mitigation plan. Said plan shall be devetoped
in consultation with ttie U.S. Rsh and Wildlife Senrice and te Callfomte Departtnent of Fish and
Game, and shall Indude the folfowing:
a. Preparation of a deteiled site plan deifneating alt areas and types of impad to uptend
habitet spedes Ox)tii permanent dnd temporary) and te exad acreage of each impact.
In addition, a detailed site pian of te mitigation sites shall also be induded.
b. Impads to coastel sage scrub shaii be mitigated at not iess than a ratio of 2:1.
c. Mitigation methods shall be consistent witii those approved In Section 7-9 of te second
addendum to the Carisbad HMP and Policy 7-1.10 of tfie Mello II Land Use Pten of te
Carisbad LCP, as provkJed in Exhibit 10.
d. A minimum buffer of 20 feet shall be provkled between devefopment as defined In Sectfon
30106 of the Coastal Ad, and native upland habitet except as otenmse prx>vkted In
Section 7-11 of ttie second addendum te Carisbad HMP and Policy 3-1.12 of the Mello II
Land Use Plan of the CarisiDad LCP, as provkled in Exhibit 10.
6. Location vi^ere the seeds will be colleded and identificatfon of plant spedes to be used
for the restoration area;
f. Appiication rate (e.g. pounds per acre of seeding effort);
g. Methods of weed eracQcation. No Weed whips shall be pennitted after insteltation of the
seed mixes;
h. Designation of a qualified t>otenist to'supervise the restoration effort
I. Goals, objectives and success criteria. The plan shall include quantitetive success criteria
that deariy relate to the goals and objectives of te habitet restoratfon program. These
quantitetive success criteria shall be based on sampling reference sites or on pertinent
published reporte. The success critieria stiall include minimum requiremente for species
diversify and cover of shrubs, subshrubs. and hert)aceous species. At minimum, five
years after te initial planting the restored areas shall support at least 10 native spedes
appropriate to characterize the vegetetion type and have evidence of recruitment of at
least one-half of these spedes. Weeds shall be controlled as specified in (g) above and
never constitute more than 10 percent of the total cover.
j. At completton of the mitigatton/restoration effort, tiie restoration spedalist shall prepare a
letter report indicating tet ttie installation is finished and ttiat te ttve-year monitoring
period has begun. Monitoring reports shaU be submitted to ttie City and te Executive
Director annually for five years. If at the end of five years, any of ttie restored areas fail to
meet the success criteria as conteined In the final mitigation plan, the monitoring and
maintenance periou Jil be extended one full year for tet atv J Final monitoring for
success shall occur after at least a three-year period during whk:h there has been no
remediation or maintenance,.otiier than weeding. If te success critieria are not met after
6 years, an amendment to the permit shall be required.
The pemiitiee shall undertake devefopment in accordance witti ttie approved mitigation/restoration
plan. Any proposed dianges to te approved plans shall be reported to te Executive Director.
No changes to te plans shall occur without a Coastel Commission approved amendment to this
coastal development pennit unless the Executive Diredor determines tet no amendment is
legally required.
3. Restoration for Constmction Impads. PRIOR TO ISSUANCE OF THE COASTAL
DEVELOPMENT PERMIT, if any temporary wettand and/or riparian impads are proposed, the
applk:ant shall submit a detailed revegetation plan indicating te type, size, extent and location of
all plant matertals, any proposed inigation system and any oter landscape features necessary to
revegetete any pitoposed temporary wettand and/or riparian impads. The restoration program
stiall be developed in consultetion with tfie U.S. Department of Rsh and Wildlife and te Califomia
Department of Rsh and Game, and at a minimum shall indude:
Before/After Survev. The condition of the wetiand andfor riparian revegetetfon and substrate
under the two approved gotf cart crossing focations sliail be documented prior to
construdkxi, and ttie extent of proposed temporary impacte shall be telentitied. The extent of
impacte to ttie vegetetk)n and substt^te shall be assessed and documented after completion
of the repairs. Temporary wetiand and/or riparian impacts shall fc)e revegeteted at a ratio of
1:1. There shaH be no wettand impads except for those temporary impacts assodated with
construdion of the two approved golf cart crossings. No penmanent wetiand or riparian
Impacte shall be alfowed.
a. The following goals, objedives and perfbrmance stendards for the restoration sites:
1. Full restoration of ail wetland and/or riparian impacte that are identified as
temporary. Restoratfon of temporarily impeded areas shall include, at a
minimum, restoration of before-impad elevations, restoratton of before-impad
hydrofogy, removal of aH non-native plant spedes. and reptenting with locally
cdleded native wettend and/or riparian plant spedes.
2. After construction and restoration, a permanent minimum buffer of 100 feet shall
be provkled between devefopment and wetiands, and a minimum buffer of 50
feet ShaH be provided between development and riparian area, except as
shown on ttie "Cify of Carlsbad Golf Course Revisions" plan dated Febmary 7.
2003. For the two approved golf cart path crossings and the golf course playing
areas adjacent to the riparian area as shown on te plan, an average minimum
post-construdion buffer of 50 feet shall t^e provkled between new deveiopment
and wetiands. and an average minimum post-construction buffer of 25 feet shall
be provkied between new development and riparian areais. consistent with
Policy 3-1.12 of ttie Mello II Land Use Plan and Sedfon 7-11 of the Carlsbad
HMP, as provkied in Exhibit 10, unless ottienMse approved by te Executive
Diredor in a manner consistent with te final, approved development plans and
mitigation/restoration plans. The buffer between devefopment and
riparian^vetiand habitet for ttiese referenced areas shall not be less than 10 feet
In width at any one point
3. As shown on ttie plan entitied "Cify of Carisbad Golf Course Revisions"
submitted witii LCPA 1-03B (Carisbad HMP) on Febmary 7,2003, and
consistOi. Jnth the golf course hardKne map (Rgu. b Revised) in te Cartsbad
HMP. golf cart patti crossing #1 shatt utilize ttie existing farm road, and crossing
#2 ShaH utilize a bridge span stmdure. No pemianent riparian impacte shaH
occur for either crossing.
4. Success criteria and final performance monitoring shall provkte at teast a 90%
coverage of areas dlsturi>ed by construction activities wittiin 1 year of
completion of construction adivities.
5. The final design and construction mettiods tet wiU be used to ensure te
restoration sites achieve the defined goals, objectives and performance
standards.
6. Submittal, within 30 days of completion of initial restoration work, of post-
restoratfon plans demonsUating tet the restoration sites have been esteblished
in accordance with ttie approved design and constiudton methods.
Constmction impads to sensitive habitet areas (e.g., coastel sage and oter native uptend habitet
wetiands. and riparian areas) shaU be avokied by identifying and steking aH sensitive habitete
outeide ttie projed footprint and educating te constmction crews about the importance of ttiese
habitats and need for protection.
The permittee shall undertake devek>pment in accordance with the approved restoration pten.
Any proposed dianges to the approved plans shall be reported to ttie Executive Director. No
changes to the plans shaU occur witiiout a Coastel Commissfon approved amendment to this
coastal deveiopment pennit unless the Executive Oiredor determines tet no amendment is
legaHy required.
4. Rnal Landscape Plans. PRIOR TO ISSUANCE OF THE COASTAL DEVELOPMENT
PERMIT, the applteant shall submit to te Executive Director for review and written approval, a
detailed final landscape plan for the proposed development Said plan shaU show the type, size,
extent and location of aU proposed vegetetion and any necessary inigation. and shall provkte the
following infomnation and/or commit to ttie following requiremente:
a. The instaHation of plant materials on tiie site, except for golf course turf wittiin the playing
and pradk:e areas, shaH consist only of drought-tderant native or non-invasive plant
materials. Within buffers adjacent to native habitet only native plant materials shall be
installed. To the extent feasible, native grasses shall be utiilized in "rough" areas.
b. Required habitet buffers, as provided in Speciai Condition #2. shall be identified. The
applicant shall provkle a list of proposed plants to be used in ttie buffer areas, and shaH
indicate te type and location of any proposed bamers, signage or ottier mettiods ttiat will
be utilized to separate gotf course activities from proteded native habitet wetlands and/or
riparian area.
c. A planting schedule that indicates the planting plan will be implemented within 60 days of
completion of constmdion.
d. A written commitment by the applicant ttiat aR required plantings will be mainteined In good
growing condition, and whenever necessary, will be replaced with new ptent materials to
ensure continued compliance.
e. A written commitment by tiie applicant ttiat five years from the date of opening of ttie golf
course, the applteant will submit for the review and written approval of the Executive
Diredor, a landscap. .\onItoring report, prepared by a iteens. Landscape Archlted or
qualitied Resource Specialist tet certifies te on-site landscaping is in confonnance with
ttie tendscape pten approved pursuant to this Spedal Condttion. The monitoring report
shall indude photographk; documentetion of plant spedes and plant coverage.
f. tt the landscape moniforing report indk^ates ttie landscaping is not in conformance with or
has failed to meet te periomnance standards spedfied In ttie landscaping pten approved
pursuant to this permit, te applk:ant or successors in Interest shall submit a revised or
supplementel landscape plan for te review and approval of the Executive Oiredor. The
revised landscaping plan must be prepared by a Itoensed Landscape Ardiited or a
qualified Resource Spedalist and shall spedfy measures to remediate ttiose portions of
the original plan tet have failed or are not in conformance witii the original approved plan.
The permittee shaH undertake devefopment In accordance witti te approved landscaping ptens.
Any proposed changes to te approved landscaping plans shaH be reported to ttie Executive
Diredor. No changes to the plians shall occur witiiout a Coastel Commissfon approved
amendment to tills coastel development pemiit unless tiie Executive Diredor determines tet no
amendment is legally required.
5. Erosion Contt-ol Plans. PRIOR TO ISSUANCE OF THE COASTAL DEVELOPMENT
PERMIT, te applicant shaH submit to the Executive Diredor for review and written approval, an
erosion and sediment contrd pian for te proposed development prepared by a qualified resource
specialist The plan shall be in substential conformance with te following requiremente:
a. The plan shall delineate ttie areas to be disturbed by grading or constmction activities and
shall include any temporary access roads, steging areas and stockpile areas. The natural
areas on the site shall be dearly deUneated on the pmjed site with fendng or survey flags.
No grading or staging of equipment or supplies shall occur in te protected areas.
b. The plan shall specify that if grading occurs during te rainy season (Odober 1 -
March 31). the applicant undertake the folfowing protedive measures to assure offsite
sedimentation is minimized to the maximum extent feasfole: InsteH or construd temporary
sediment basins (induding debris basins, desitting basins or silt traps), temporary drains
and swales, sand bag baniers and/or silt fencing; stabilize any stockpiled fill witti geofabric
covers or oter appropriate cover; instaH geotextiles or mate on aU cut or fll slopes; and
close and stabHize open trendies as soon as possibfo.
These erosion and sediment contrd measures shaH be required on te projed site prior to
or concurrent witti te initial grading operatbns and maintained tiiroughout te
development process. All sediment shouki be retained on-site unless removed to an
approved dumping location eittier outeide the coastal zone or to a site within the coastel
zone permitted to receive till.
c. The plan shall also include temporary erosion conttol measures should grading or stte
preparation cease for a period of more ttian 30 days, including but not limited to:
stabilization of all stockpiled flH. access roads, disturbed soils and cut and till slopes with
geotextiles and/or mats, sand bag bamers, and/or siK fendng; and installation of temporary
drains and swales and sediment basins. These temporary erosfon contrd measures shall
be monitored and maintained until grading or constmdion operations resume.
The pemnittee shaH undertake development in accordance with the approved erosfon control
plans. Any proposed changes to the approved plans shaU be reported to ttie Executive Diredor.
No dianges to the plans shajl occur without a Coastal Commission approved amendment to this
13
coastal development permil -.iless ttie Executive Diredor determine^ J\at no amendment is
legally required.
6. Drainage and Polhjted Runoff Contrd Plan. PRIOR TO ISSUANCE OF THE COASTAL
DEVELOPMENT PERMIT, te applk^ant shall submit for ttie review and approval of ttie Executive
Diredor, final drainage and mnoff conttol plans induding supporting cateutetfons. The plan shaH
be prepared by a lk:ensed engineer and shall Incorporate strudural and non-structural Best
Management Pradlces (BMPs) designed to reduce te pdlutant foad d runoff to ttie maximum
extent feasibfo. and reduce or eliminate any potential increases in the volume or vetodfy of mnoff
leaving the site. In addition to the specifications above, the pian shall be in substantial
conformance with the following requiremente:
a. Seleded BMPs (or suites of BMPs) shaH be designed to tteat infiltrate or filter stormwater
from each mnoff event up to and induding the 85" percentile. 24-hour mnoff event for
volume-based BMPs, andfor te 85th percentile, 1-hour mnoff event, with an approprtete
safety fador. for f fow-based BMPs.
b. BMPs shall be seleded to address the pdlutente of concem for thte devekspment
including sediments, nutriente, pestiddes, fertilizers, motels, petrdeum hydrocarbons,
trash and debris, and organk: matter.
c. Runoff shall be conveyed off site in a non-erosive manner. Energy dissipating measures
shall be insteUed at te terminus of aU outflow drains.
d. Drainage from aH roofs, parking areas, driveway area, and ottier impervtous surfaces on
the buiiding pad shaU be direded through vegetetive or other media fUter devfoes effedive
at removing and/or treating contamtnante such as petroleum hydrocarbons, heavy metals,
and other particutetes.
e. Opportunities for dtreding mnoff into pervfous areas located on-site for infittration and/or
percolation of rainfall through grassy swales or vegetative filter strips. stiaH be maximized.
f. The plan shaH indude provisions for maintaining the drainage system, induding struchjral
BMPs. In a functional condition throughout te life of te approved devefopment The plan
ShaH indude an identifteatton of ttie partv or entitvfies) resoonsibte for maintaining the
various drainage svstems over its lifetime and shaH indude written acceptance bv the
responsibte entiWfles^. Such maintenance shall include te folfowing: (1) BMPs shall be
inspeded. cleaned and repaired when necessary prior to and during each rainy season.
Including conduding an annual inspection no later ten September 30" each year and (2)
shouki any of the projecf s surtace or sut^rface drainage/filtration structures or ottier
BMPs faU or result in increased erosion, tiie applicant/lando%vner or successor-in-interest
shall be responsible for any necessary repairs to tiie dralnage/fittration system or BMPs
and restoration of tiie eroded area. Shouid repairs or restoration become necessary, prior
to the commencement of such repair or restoration work, te applk:ant shaU submit a
repair and restoration plan to the Executive Diredor to detennine if an amendment to this
coastal development permit or a new coastal development penfntt Is legaUy required to
authorize such woric.
g. Paridng lote susceptible to stormwater shouki be swept witti a vacuum regenerative
sweeper on a regular basis.
h. The gotf course shall be equipped with flow reducers or shutoff valves ttiggered by a
pressure drop so that broken pipes do not increase flow to ttie stomn drains;
9r
i. The applfoant shaH^^.ovkte. for the revtew and approval of tfL cxecutt've Diredor. ptens
for a sett-contained cart washing fadlity that Is equipped with a pre-treattnent fadlify. and.
if significant discharge is proposed, is conneded to the sanitary sewer;
j. All storm drain inlet stmdures must be equipped witti ttash racks, whfoh shall be
maintained by the appik:ant and/or authorized agent
k. Stomn drains stiall be stendied vtntti water quality warnings indicating that tfie drain ffows
tote lagoon.
The permittee shall undertake devefopment in accordance with the approved drainage and mnoff
control plans. Any proposed changes to te approved drainage and runoff conttol plans shaH be
reported to the Executive Diredor. No changes fo tfie approved plans shaH occur witiiout an
amendment to tiiis coastal devefopment pennit unless ttie Executive Diredor detemnines ttiat no
amendment Is legally required.
7. Water Qualttv Monitoring Plan. PRIOR TO ISSUANCE OF THE COASTAL
DEVELOPMENT PERMIT, te applk»nt shafl submit for ttie review and approval of ttie Executive
Diredor. a water quaHty monitoring pian to address te quality of mnoff prior to leaving te site or
entering the onsite riparian area. The plan shall describe the methodofogy for monitoring,
induding specific ttireshdd levels and sampling protocols, location of monttoring sttes. schedule
for monitoring, and reporting d resutts. The monitoring ptan shall also indude a contingency plan
describing ttie actions to be taken if water quality impacts are discovered. In addition to
specifications above, te plan shall be in substantial confonnance witti the folfowing requiremente:
a. The pten shaH require monitoring of te foHowing pdlutants: nittrates, nitrttes, phosptiates,
dissolved oxygen, pH, total suspended sdids (TSS), acute and chronfo toxidfy, and shall
indk:ate the proposed sampling frequencies. Total suspended solids (TSS) shall be
sampled for at the same frequency as te nuttlente.
b. The plan shall spedfy maximum threshoki levels for each water qualify parameter.
c. The plan shall specify sampling protocols to be used for each water qualify parameter.
Measuremente must be precise enough to evaluate compliance with applicable water
qualify threshold levels.
d. Sampling for basefine data shall be conduded a minimum of three (3) times and during
different level storms to acquire a representative sample of water qualify conditions at the
site.
e. Results of monitoring shall be submitted to the Executive Diredor annually.
f. If any water quality tiireshdd levels refened to above in b) are exceeded, te applicant (or
successor interest) shaH notify the Executive Diredor of the exceedances and potential
impads and within 48 hours of receipt of ttie monitoring data. At te same time te
applicant shall consutt with the Executive Diredor regarding the need for addttfonal
sampling to evaluate the exceedance or conective action to minimize water quality
impads. The applicant shall report to the Executive Diredor on the possible causes of the
exceedance and proposed conedive actions within 30 days of ttie initial receipt of te
data.
g. If any water quaUty impads persist after three years of detedion, not withstanding any
corredive actions taken by the applicant. aH use of the chemicals that exceed water quality
threshold levels shall cease.
8. Turf and Pest Management Plan. PRIOR TO ISSUANCE OF THE COASTAL
DEVELOPMENT PERMIT, ttie applteant shaH submit to te Executive Director for revtew and
approval, a detailed ttjrf and pest management plan for te gotf course portion of te devetofxnent
The plan shall comply with te fdfowing requiremente:
a. Tuif management practices shall utilize stete-of-ttie-art environmental methods to minimize
fertilizer use. water use and chemical pest conttol to te maximum extent feasibfo. to avokl
impads to native uptend habitet wetiands. riparian areas, and water quaUfy.
b. The plan shall favor non-chemical sttategies over chemfoal strategies for managing onsite
pests. Chemical strategies shaH only be emptoyed after aH oter sti^tegfos have been
used and proven ineffective. This shall be demonsti^ted by provkling written notice to the
Executive Diredor of te non-chemfoal strategies tet will be used, te reasons for telr
Ineffectiveness, and the chemk:al sttategies tiiat are being consktered.
The pemiittee shall undertake devefopment in accordance with the approved ttjrf and pest
management plan ptens. Any proposed dianges to the approved plans shafl be reported to the
Executive Diredor. No changes to the approved plans shaH occur witiiout an amendment to this
coastal development permit unless the Executive Diredor determines that no amendment is
legally required.
9. Public Golf Course Fadlitv. The golf course, clubhouse, paridng areas, driving range,
conference center and pads for futore industrial/golf related uses shall be operated as fadllties
open to the general public. Any proposed change in te tevel of publfo access andfor public use
shall require an amendment to tills pennit Signage shaH be provided incficating that the onsite
fadHtles as provkled above are open to te publk:.
10. Open Space and Conservation Easement
A. No development, as defined in Sedion 30106 d te Coastal Ad. shall occur In
those areas kidlcated as Preservation Areas In Exhfoit 7 (Cify Goff Course, Revised
Figure 8 of ttie Carisbad HMP, CAR LCPA 1-038), except for temporary Impacte
assodated with construction d the two approved golf cart patii crossings, consistent
with Special Condttion #3. and onsite habitet restoration/revegetetion activities as part
of an approved coastal sage scmb mitigation plan, consistent witti Spedal Condition
#2.
B. PRIOR TO ISSUANCE OF THE COASTAL DEVELOPMENT PERMIT, te
applk:ant shaH execute and record a document In a fomn and content acceptable to
the Executive Diredor. Inevocably offering to dedk^te to a the CaHfomte Department
of Rsh and Game and te U.S. Rsh and WHcHife Sendees, or telr successor
agencies, an open space and conservation easement over aH onsite habitet
preservation areas, and aH mitigation areas (onsite and/or offsite) that wUI be utilized
to address onsite impads to habitet The recorded document shaU indude legal
descriptions of both the applicant's entire parcel and the easement area(s). The
recorded document shafl also retted that development in the easement area(s) is
restrided as set forth in this permit condition.
C. The offer to dedicate shall be recorded free of prior Hens and encumbrances which
the Executive Director detemiines may affed ttie Interest being conveyed. The offer
shall mn witti ttie land in favor of te People of the State of Califomia, binding aH
successors and assignees, and shall be inevocabte for a period of 21 years, such
pertod mnning from the date of recording.
%
11. Protection d the Coastal Calttomla Gnatcatcher. To prevent breeding/nesting season
impacte to the coastal CaHfomia gnatcatcher (Pdfoptila califomk^a caiifomk^). te permtttee shaH
not undertake any dearing or grading activttles on ttie gdf course site between March 1 and
August 15. unless approved in writing by te U.S. Rsh and Wlkilife Servfoe and ttie Callfomte
Department of Rsh^nd Game. Herbldde, pestidde andfor ferti'llzer appHcatfons shaH occur
outekie of a 100-foot exdusfon zone to avokl drift towards nesting areas. A worker education
program shaH be Implemented to ensure tet aH gdf course constmction and maintenance
workers know the location of afl gnatcatcher nests and are aware of the above-described
protection measures.
During the non-breeding season (August 16 tiirough Febmary 28), if consttuction activities will
produce ndse levels greater ten 60 db, gnatcatcher-occupied habitete wtthin te habitet preserve
areas shaH be shielded from ttie sight and sound d such activities taking ptece witfiin 50 feet of
tiie occupied habitet using ttie fdlowing technk^ue. During constiruction, te gnatcatcher habitet
WiH be shielded from sight and sound by 8-foot high, sdfo 1-inch tiik:k baniers. A bfologfoal
monitor must be onsite dafly to ensure that ttie constmction activities are having no negative
impad on gnatcatchers.
The permittee shall staff a quaHfled monitoring biofogist on-sHe during aH CSS dearing and any
other prpjed-related wortc adjacent to CSS to be avoided. The biologist must be acknovtrledgeable
of gnatcatcher bidogy and ecofogy. The pemiittee shall ensure tet prior to and during ttie
clearing of coastal sage scrub and/or any other suitable gnatcatcher habitats outskte te
gnatcatcher breeding season, the biologist shall focate any IndMdual gnatcatchers on-site and
dired clearing to begin in an area away from birds. In addition, te biofogist shaH walk ahead of
clearing equipment to fiush birds towards areas of habitat that wfll be avokied andfor whtoh are
located within the permanent preserve areas.
12. Open Space Restriction.
A. No development, as defined in Sedlon 30106 d te Coastal Act shall occur in habitat
buffer areas as required in Spedal Conditions #2 and 4, and as kientified in the final
landscape ptens. and as described and deplded in an Exhibtt attached to the Notice of
Intent to Issue Permtt (NOI) tet te Executive Diredor issues for this permtt, except for
1. approved landscaping adivities and plantings andfor restoration and
revegetation of native habitat according to te final coastal sage scmb mitigation
pian; and
*B. PRIOR TO ISSUANCE BY THE EXECUTIVE DIRECTOR OF THE NOI FOR THIS
PERMIT, the applicant shaU submtt for te review and approval of te Executive Diredor.
and upon such approval, for attachment as an ExhiM to ttie NOI, a formal legal description
and graphk: depiction d the portion of the subjed property affeded by this condition, as
generally described above and shown on Exhibtt 7 attached to ttiis steff report.
C. PRIOR TO ANY CONVEYANCE OF THE PROPERTY THAT IS THE SUBJECT OF THIS
COASTAL DEVELOPMENT PERMIT, te applicant shall execute and record a deed
restridfon. in a form and content acceptable to ttie Executive Diredor: (1) indicating tfiat
pursuant to ttiis pemnit. the Califomia Coastel Commission has authorized development on the
subjed property, subjed to temns and conditions tet restrid te use and enjoyment d tet
properfy (hereinafter refened to as ttie "Standard and Spedal Conditions); and (2) imposing all
Standard and Special Conditions of this pemitt as covenante. condttions and restridions on the
use and enjoyment d ttie Property. The reslridlon shall include a legal description of the
applicant's entire parcel or parcels. It shall also indicate ttiat, in ttie event d an extinguishment
9?
or tennination of te dbc j resdiction for any reason, the Stance J and Special Conditions of
this permtt shaH continue to restrict te use and enjoyment d the subjed properfy so long as
either this permtt or te devefopment tt auterizes ~ or any part mcxJificatt'on or amendment
thereof - remains in existence on or witti resped to te subjed property.
13. Any future revisfons to the gott course layout andfor design which may be necessary to
address gotf course operati'ons or any other reason shaH require an amendment to this permit
Any such revisions to ttie gotf course shaH cxxur within the approved devefopable area in the least
environmentally damaging manner that is most protedive of te sensitive resources within the
habitet preserve. No impads to resources within the preserve shall be permitted.
14 Technteal Advisorv PaneL An independent technksal advisory pand of environmentel and
agency representatives shall be provkled te opportuntty to review and comment on te
management plans and ongoing monitoring reports. This wiH allow for meaningful Input by aH
parties interested in the water qualtty in the Agua HecTionda Lagoon, and wiH assist the Coastel
Commissk)n staff and te Cify in effedively assuring ttie environmental qualtty <A te gotf course.
All revtew andcommente will be requested to be submitted within 45 days of receipt of draft plans.
The Exe<:utive Diredor of te CaHfomia Coastal Commisskxi shall have final authorify over te
determination of condition compliance, unless tt is determined that ttie ttem stKXJid be refened to te
Commissfon.
A-6-CII-00-087P
EXHIBIT E-5
CiTY OF CARLSBAO
PLANNING DEPAfTTMENT
1635 Faraday Avenue
Carisbad CA 92008
ENDANGERED SPECIES ACT INCIDENTAL TAKE PERMIT
1. Permit Number
HMP 04-01
2. Name of Permittee
Cify of Caristiad. Recreation Departinent
3. Name of Project
Carisbad Municipal Gott Course
4. Contact Name and Phone Numt3er
John CahiH 602-2726
5. Location Where Authorized Acthdfy May Be Conducted
Ctty owned stte located generally north or Palomar Airport Road, south of Faraday Avenue,
east of Hidden Valley Road, and west d McCldlan-Palomar Airport.
6. Other Related Entltiemente
CUP 97-07
7. Conditions Of Permit
• The applfoant shaH comply wtth all conditions of approval and mitigatidn measures
contained in CUP 97-07, EIR 97-01, and Coastal Development Penntt A-6-C1I-00-87
issued by the Coastal Commissfon.
• The applicant shaH compiy with aU appitoabte provisions of the approved Habttat
Management Ptan. See attached Rndings.
Recommended for approval
8. Signature of Planning Director
Date:
PLANNING DIRECTC rINDINGS FOR ISSUANCE OF INCL .NTAL TAKE PERMIT
These Rndlngs accompany Carisbad HMP Permtt No. 04-01. In issuing te pennit te Ptenning
Diredor finds as fblfows:
1. That ttie Carisbad Munfoipal Gott Course has received aU necessary permlte.
entitiemente and approvals finom the Dty of Carisbad. te Calttomla Coastal
Commission, and aH otfier agencies having jurisdtetion.
2. That tfie Carisbad Munidpal Gotf Course is shown as a Proposed Hardline Projed in ttie
final approved Habitet Management Plan as Figure 8 Revised. A Grading Permft fbr ttie
projed will be issued which conforms to tiie areas of impad and preservation as shown
in Figure 8.
3. That auterization to take spedes of concem is subjed to continucxjs compltenoe wtth all
provisfons of te Habitet Management Plan for Natoral Communities in te Cify of
Carisbad (HMP), ttie Citywide Inddentel Take Permtt issued for te HMP. te
Implementing Agreement te Temns and Conditions of the Incidental Take Permft, and
the Biological Opinkm.
4. That authorization to take spedes of concem is subjed to continuous compUance with all
mitigation measures as steted in EIR 97-01 and all conditions of approval of Coastal
Devetopment Pernirt A-6-CII-00-87. Induding but not limited fo onsite revegetetion of
coastal sage scmb and Soutem Maritime Chaparral, offsite acquisition in te Counfy
Gnatcatcher Core Area, recordation of conservation easemente over all conserved
areas, seasonal grading resttidions, and management and monttoring in perpetutty by a
qualified cx^nservatbn entity.
5. That authorization to teke species of concem is subjed to continuous compUance with
the provisions of Volumes 1. II and 111 of te Multiple Habitet Conservation Program and
the Final Environmentel Impad Stetement/Environmentel Impad Report fbr Threatened
and Endangered Species Due to Urban Grovytti wtthin ttie Multiple Habttat Conservation
Program Planning Area (SCH No. 93121073).
6. That afl impads to habitet and ali take d species will be inddentel to oterwise lawful
activities related to construction and operation of a public gdf course.
7. That ttie projed design as approved by flie City of Carisbad and the Califomia Coastel
Commissfon has avoided and minimized impads to wildlife habitat and spedes of
concem to te maximum extent practi'cat}le.
8. That adequate funding has been provided to address changed circumstences and
adaptive management needs tet may be reasonably antldpated In the future,
consistent with the HMP Implementing Agreement
9. That ttie incidental take of spedes of concem as a resutt of te projed will not
appredabty reduce te likelihood of survival and recovery of te spedes in te wild due
to ccxnpliance with aU of the above steted requirements, as weH as ongdng monitoring
and reporting to the wildlife agendes and ttie public.
APPROVED
Ranning Director ^ Date
/co
UMXU»/2U04 US: 48 KAX 7tf0431590Z US KISU AND WILDLIFE itfOOZ
United States Departinent of the Interior
FISH AND WILDUEE SERVICE
Eootogical Services
Culitad Fishiad WikHttiB Offioe
6010 Hkidai VaBey Road
CarislMd.Cilifbnn 92009
InReplyRrfecTo:
Fws-sDo-ii8g.i SEP 0 8 2004
Mr. Nfichad Hokomller
Carlsbad Planxung Departmeitt
1635 Faraday Avenue
Carlsbad. Califoroia 92008
Re: Mitigation for te City of Carisbad^s Pmposed Muiddpal Golf Course
Dear Mr. HolzmiUer.
The U.S. Bah and Wildlifo Service (Service) has reviewed te infonxiation provided by te City
of Carisbad (Qty) regarding te purchase of 51.6 acres of coastal California gnateatcher
{PoUaptiia califomica californica; gnatcatcher) habitat to nutigate for impacts from te City's
proposed municipal golf course. This information included an exhibit which idientilled te exact
location of te 51.6 acres and te conservation easement deed.
Witfun te Muhiple Habitat Conservation Flan (MHCP) and te City's Subarea Plan (JOMP), te
City has an obligaticm to effoctoate te conserv^ioa and conveyance of 307.6 acres ci land
within te MHCP core gnatcatcher area. One means by which te City proposes to help meet
this obUgation is to acquire 51.6 acrea of habitat occupied by five pairs ot gnatcatchers to
partially mitigate for impacts that would cxxur from the development of te munidpal golf
course. It is our understanding tet this condition ia met by te purchase of 51.6 acres oi
mitigation land as identified on te enclosed exhibit for te following reasons: 1) te land is
located within te area te Service ccmsident as contnboting to te gnatcatcher core area within
te MHCP; 2) a conservation easement will lie placed over aU 51.6 acres witfi te Califonua
Department of Hsh and Game as third party t)enefldary; 3) records provided by te City indicate
that at least five pairs of gnatcatchers occupy te 51.6 acres that will be preserved; and 4) te
lands wiU be managed by te Center for Nataral Lands Management with a suffident endowment
to ensure te numagement of land to provide gnatcatcher habitat in peipetuity.
In axidition, te Service accepts te City's proposal to acquire te designated lands and upon
acquisition and implexxientation of te conditions outlined above, te City may appty te 51.6
acres towards te land acquisition obligation under te MHCP and HMP. If for any reason te
City does not proceed with devdopment of the munidpal golf course, te City shall have the
right to apply te 51.6 acres to mitigate for anottier public project that would require mitigation
for impacts to coastal sage scmb. If te City desires to apply te 51.6 acres towards mitigation
ciedit for private projects, te Service will work witfi die City to estabtish an appropriate
mitigation bank to fadiitate such a transfer.
TAKE PRiori
IN^MBRICA
un/uo/ 6\tu* uo;»o FAA /OU4JXO»U4 US KISH AWU WlLULlh'tl tflOOS
Mr. HolzmUler (FWS-SDG-1181.1)
The Service is pleased to know te City of Carlsbad is moving forward on such obligations pre-
perxnit issuance. If you have any questions, please contact Lee Aim Carranza of te Service at
(760) 431-9440 extension 292.
Sincerely.
Enclosure
Therese 0*Rourke
Assistant Held Supervisor
U.S. Fish and Wildlife Service
EXHIBIT E-6
San Di«90 Gas & Etectric
8335 Century Parte Cotot
San Diega CA 92123
Sempra Energy utility"
June 23, 2005
City of Carlsbad
Recreational Department
1200 Carlsbad Village Drive.
Carlsbad. CA 92123
Attn: John Cahill. Mimicipal Projects Manager
LETTER OF PERMISSION FOR GRADING
AND CONSTRUCTION OF IMPROVEMENTS
Dear Mr. Cahill:
San Diego Gas & Electric Company (SDG&E) is te owner of a 100', 150', & 200* Electric
Transmission Easement and a 20' Gas Transmission Easement located in and around te
following legal description: THOSE PORTTONS OF SECTION 35. TOWNSHIP 12 SOUTH.
RANGE 4 WEST AND SECTION 2, TOWNSHIP 13 SOUTH. RANGE 4 WEST, SAN
BERNARDINO MERIDIAN. IN THE CTTY OF CARLSBAD, COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA, ACCORDING TO THE OFFICTAL PLAT THEREOF. SAID
PROPERTY BEING MORE PARTICULARLY DESCRIBED IN EXHIBIT "A" OF QUTF
CLAIM DEED RECORDED MARCH 28, 1989 AS FILE NO. 89-157040 OF O.R. (A.P.N.
212-010-05, 07, 11, 12, 13, & 15; A.P.N. 212-041-12 TO 36; A.P.N. 212-082-01 TO 10; A.P.N.
212-081-01 TO 21)
(SDG&E Right of Way No. 31580, Recorded April 15, 1954 in Book 5205, Page 419 of O.R.;
SDG&E R/W No. 31581. Recorded May 6, 1954 in Book 5230, Page 131 of OR.; SDG&E RAV
No. 45062, Recorded August 14, 1957 in Book 6706, Page 514 of O.R.; SDG&E R/W No.
45064, Recorded September 27, 1957 in Book 6767, Page 25 of O.R.; SDG&E R/W No. 31564,
Recorded April 15, 1954 in Book 5205, Page 416 of OR.; SDG&E R/W No. 31565, Recorded
May 3, 1954 in Book 5525, Page 397 of OR; SDG&E R/W No. 45474, Recorded May 11.1961
as Doc. No. 81362 of O.R.; SDG&E R/W No. 45476, Recorded May 15. 1961 as Doc. No.
82981 of O.R.).
We have reviewed and approved te Grading & Improvement Plans for Carlsbad Municipal Golf
Course - Phase //, accepted April 4, 2005, which shows the proposed grading and improvements
on te property subject to our easement, attached hereto as Exhibit 'A* (27 sheets).
Carlsbad Cioif Couise.doc
Pennission is hereby granted to Cify of Carlsbad (Permittee), to grade and construct
improvemente as shown on said plan, subject to te following conditions:
1. Expiration:
This "Permission to Grade" shall expire if grading does not commence within 6
monte from te date of this letter, or woik is not diligently pursued to completion.
2. Submittals:
2.1. Permittee agrees to supply SDG&E with *as built* grading, improvement, and profile
plans to SDG&E specifications, if requested.
2.2. Permittee agrees to submit for review and approval, a blasting plan prior to blasting, if
blasting is required.
3. Pre-Constrnction Meetteg:
SDG&E *s Land Management Representative (LMR) must be invited with at least
three (3) working days prior notice.
4. Grading:
4.1. At least twenty-four (24) hours notice must be given to SDG&E*s LMR before start of
work. Field changes to plans within said easement shall be approved in writing by
SDG&E LMR.
4.2. Pemiittee is responsible to call DIG ALERT at 1-800-227-2600 for all underground
mark-out locations 48 hours before digging.
4.3. SDG&E standby personnel are required when grading or groimd penetration occurs
within te gas transmission easement or within ten (10) feet of te gas line when in a
firanchise position.
4.4. No power-operated equipment shall be used within two (2) feet of any portion of te gas
line, only hand digging is allowed and an SDG&E standby is required.
4.5. If any contact is made with te gas line or its coating, SDG&E must be notified
immediately at 1-800-411-7343 and te area left exposed.
4.6. The gas easement shall be staked with ribboned lath at fifty-foot (50*) increments and
the staking shall be maintained at all times during grading and construction of te
project.
Carlsbad Golf Course.doc 2
4.7. SDG&E reserves te right to inspect and perfonn quality control work during
construction. SEKj&E standby persoimel are auterized to stop work around te gas
line if all required precautions are not stricdy adhered to.
4.8. Equipment crossings of te gas line must be designed to eliminate any possible damage
to te gas line and approved by SDG&E gas transmission engineering.
4.9. Clearance of (35) fed minimum between te SDG&E electric transmission wires and te
natural ground shall be maintained on any given day, noting line sags vary depending
on ambient temperature and line current All requirements, including but not limited
to OSHA, CAL-OSHA. ANSI, NIOSH, and NEC for clearances when working
around energized electrical facilities must be maintained.
4.10. No grading shall be allowed within ten (10) feet of a single wood pole stmcture or
anchor, or fifteen (15) feet from any multi-wood pole stmcture (H-fi:ame, 3-pole, etc),
or twenty (20) fed fiom any electric steel lattice towers or thirty (30) fed of steel
poles. All measurements are taken fix>m te face of pole or face of foundation.
5. Special Conditions:
5.1. All new SDG&E access roads shall be sur£K:ed with an all-weather material. All access
driveways shall have a 30' wide commercial grade aproiL Roads shall be compacted
to 90% relative maximum compaction. SDG&E requires that Permittee submit a
complete compaction report upon completion of all areas of grading within te
SDG&E gas transmission easement. Appropriate plans must be made to protect te
afifected areas fi'om storm water.
5.2. All trees planted within SDG&£*s easement shall be no more than 15.00 feet in height
at maturity and shall not restrid SDG&E*s access to any of its facilities.
5.3. Irrigation systems shall not spray directiy onto any electric facilty, access road or
maintenance pad.
6. Erosion Control:
6.1. All disturbed and created slopes, within te SDG&E electric transmission easement
shall be hydro-seeded or planted by Permittee with an SDG&E approved mix.
6.2. All drainage shall be designed to prevent erosion of SDG&E easement and access roads.
7. Storage:
7.1. This permission to grade letter does not permit storage of equipment materials, dirt or
debris on te easement or SDG&E fee owned property.
Carlsbad Golf Couise doc /or
8. Access:
8.1. Access to all SDG&E facilities shall be maintained at all times. All coste associated
with restoration of access and all associated damages shall be home by Permittee.
5.2. All gates shall provide for SDG&E access by padlock, lock-box or kieyed bypass both
during and upon completion of construction. Location and constmction of gates to be
approved by SDG&E LMR.
9. Outstaiuijng Agreements:
Perminee agrees to pay for, sign and/or have signed all Consent Agreements, Consent to Use of
Land Agreements and/or Joint Use Agreements between SDG&E and owner or public agencies
who encroach upon te SDG&E easements. Said agreements shall be subject to te revocability
clause as stated in te Califomia Public Utility's Commission's General Order 69-C as shown on
website http://www.cpuc.ca.gov/PUBLISHED/(jraphics/645.PDF.
10. Indenmification:
10.1. Permittee agrees to assume all risk of loss, damage to property and/or injury and/or
death to persons, and to indemnify and hold SDG&E hannless fiom any and all
liability in any way arising fiom te proposed grading or construction of
improvements.
10.2. SDG&E shall not be responsible in any manner for any maintenance or repair of te
proposed grading or improvements. This includes, but is not limited to, drainage
and/or erosion problems or damage caused to improvements that were not constmcted
to take te weight or activities of vehicles and equipment owned by or worldng on
bdialf of SDG&E.
11. Terms and Conditions:
The terms and conditions of this approval shall benefit and bind Permittee its
successors, assigns, agents or contractors.
12. Posting:
This pennission letter shall be posted on te job site at all times.
Carfsbad Golf Course.doc
Should you have any questions or require additional assistance, please call me at (858) 654-1201.
APPROVED BY:
San Diego Cras & Electeic Company
/OS
Michael J.Will
Land Managem^t Representative
I ACCEPT THE AFOREMENTIONED CONDITIONS:
I hereby have te auterity to sign.
CityofCarlsb
Print Name:
Title: JHuM/a/Ac f2pre4s
Date:
Carlsbad Golf Course.doc
/07
The Crossings Golf Course
Management Agreement
Chris Hazeltine
December 4, 2012
Background
•July 28, 2007- CPFA entered into 5 year
agreement with KemperSports Management
(KSM) to manage the Crossings golf course
• April 26, 2012 – KSM agreement extended 6
months to January 27, 2013
2012 Capital Improvements
Hole #18 Redesign
Players’ Lounge
Access path between
No. 2 &3
Request for Qualifications
and Proposals
Players’ Lounge •October 2012 - RFP sent out
•November 2012 - 10 firms provided proposals
Proposals evaluated, scored and ranked
•3 highest ranked firms invited for interviews
and for further discussion
Qualifications and Proposals
Players’ Lounge Review committee selected KSM as the best
qualified firm based on:
•High standards and broad experience in golf
course operations
•Intimate knowledge of the course operations
•Demonstrated commitment to continuous
improvements in operations and facilities
Qualifications of Selected Firm
Players’ Lounge
$5,000,000
$5,200,000
$5,400,000
$5,600,000
$5,800,000
$6,000,000
$6,200,000
2010 2011 2012
$5,509,936
$6,040,189
$6,188,123
TOTAL REVENUE
39,000
40,000
41,000
42,000
43,000
44,000
45,000
46,000
47,000
48,000
2010 2011 2012
42,336
46,639
47,912 ROUNDS
Fees for Management Agreement
Fixed Annual Fee
+
Incentive Fee (based on revenues)
Proposed Fees
•Fixed Annual Fee $125,000
•Incentive Fee:
2% of revenue $5.0 to $5.5 million ($10,000)
5% of revenue $5.5 to $6.5 million ($50,000)
10% of revenue over $6.5 million ($65,000 maximum)
•Incentive Fee can not exceed fixed annual fee
•Maximum annual fee $250,000
Management Agreement
•Includes all day to day operations for course,
Players’ Lounge, Canyons restaurant and all food
and beverage, catering and special events
•Standards of Care remain in full force and effect
• 5 Year Agreement will commence on
January 28, 2013
Questions?