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Home My WebLink AboutStone Eagle GC - Accept as Complete & Release Securities - 10/09/08 Contract No. C28130 CITY OF PALM DESE PUBLIC WORKS DEPAR M��I G DATE �y �i�.C� � �. CONTINUED TO i_ v � � " C-�� STAFF REPORT � P��TO 2N0 REAOING REQUEST: Accept the Hearing Director's Recommendations Regarding Stone Eagle Golf Course, Accept the Project as Complete, Release the Securities, and Authorize the Mayor to Execute the Maintenance Agreement SUBMITTED BY: Mark Greenwood, P.E., Director of P rk„�s,� y �:.,:�.��,.�.�,�,�,�,.� APPLICANT: Stone Eagle §��,�p;��-�� 4 �_ � 74-001 Reserve Drive �._.�/ , Indian Wells, CA 92210 � �'E��i y��L��'-v„(�,,.,��,(,(r�/ �/ DATE: August 28, 2008 �� '�£��'4��'�«'��_ CONTENTS: Staff Report to Director's Hearing Dated 01-17- Minutes to Director's Hearing 01-17-08 Director's Hearing Recommendations Memo Contacts List for 01-17-08 Director's Hearing Maintenance Agreement with Exhibits Recommendation: That City Council, by Minute Motion: 1.) Accept the recommendations resulting from the Stone Eagle Golf Course Impacts Director's Hearing; 2.) Accept the golf course project as complete; 3.) Release the associated securities; and 4.) Authorize the Mayor to execute the maintenance agreement. Discussion: Soon after completion of the Stone Eagle Golf Course, complaints were received by the Public Works Department regarding what appeared to be excessive runoff from golf course irrigation. Staff performed extensive investigations over a period of approximately two years, and conducted public information meetings with affected residents in an effort to thoroughly identify and resolve their concerns. _._.�__.___._.e...,r.._..�_.� �� - --��:: The investigation concluded with a Director's Hearing on January 17, 2008, at which time input was received from affected residents, the developer, environmental professionals, and City staff. Each issue was thoroughly discussed and documented (see the staff report and minutes of the hearing, attached). While it is unlikely that there is or will ever be unanimous satisfaction, staff is confident that all of the significant concerns have been appropriately addressed. Accept Stone Eagle Golf Course and Release Securities Page 2 of 2 August 28, 2008 The results of the Director's Hearing are found in a report from Assistant City Attorney Bob Hargreaves, also attached. Mr. Hargreaves identifies specific issues regarding impacts resulting from golf course operations, provides acknowledgement of ineasures that have already been implemented, and recommends ongoing measures to prevent impacts from recurring. As part of the ongoing mitigation measures, Stone Eagle will be required to continue to perform weekly inspections of Bruce and Ramon creeks, and to provide acceptable documentation of these inspections to the City on a quarterly basis. City staff has the right to inspect the creeks quarterly and to recover the cost of these inspections from Stone Eagle. Stone Eagle will also conduct annual water quality testing, and is required to post a $50,000 performance bond to secure their performance. The golf course has been inspected by City staff and found to be in conformance with the project approvals, with the exception of several drainage pipes that concentrate drainage flows onto neighboring properties. Stone Eagle has agreed to modify these pipes to restore drainage flows to a more natural condition. Final approval of the golf course improvements is contingent upon successful completion of this relatively minor work. Staff has been contacted by a neighboring property owner regarding an access rights dispute with Stone Eagle. We have reviewed the records relating to this issue and has discussed the matter at length with the property owner and with Stone Eagle. It is the opinion of staff and the City Attorney that this is a private matter between the property owners and that the City has no regulatory nor enforcement responsibilities. Therefore, the Public Works Department recommends that Council accept and approve the recommendations from the Director's Hearing, accept the golf course construction project as complete, approve the release of the associated securities, and authorize the Mayor to execute the maintenance agreement. Fiscallmpact: None. Department H ad: �� Approval: � / � Mark Green od, P.E. Homer Croy Director of Public Works ACM for D pment Services Appro . -�a ��- r Carlos L. O City Mana r CITY OF PALM DESERT PUBLIC WURKS DEPARTMENT DIRECTOR'S HEARING REPORT SUBJECT: Stone Eagle Goif Course Impacts DATE: January 17, 2008 CONTENTS: Wat�r quality laboratory analysis reports Water quality biaassay Report from aquatic ecotoxicologist Report from veterinary toxicologist Minutes af 05-17-07 Direetor's Hearing Staff repor�dated 05-1�-07 with attachments The City of Palm Desert has received a number of complaints regarding impacts from the Stone Eagle Golf Course project. Through detailed investigation artd application of mitigation measures, many o� these complaints have been resolved. However, three serious issues have required further investigation and are the subject ofi this report. 1. Runoff in#o Bruce Creek Bruce Creek is a blue-iine stream within the jurisdiction of the U.S. Army Corps of Engineers. Residents and the project EIR have indicated that Bruce Creek was historically dry except during periods of heavy rainfall. Since completion of the golf course, water has been visibly and continuously flowing in Bruce Creek. Staff has performed a number of field reviews and �as found that water does indeed enter Bruce Creek from the golf course; however, water associated with the existing residential development was also abserved flowing fram tributaries to Bruce Creek. This water in the tributaries is likely the result of landscape irrigation systems as well as upstream construction activity. Residents have installed variaus improvements and made modificatians to the creek including canstruction of swimming pools, dams, channels, and the like. Due to long-term human activities Bruce Creek can in no way be considered a pristine environment. Golf course irrigatian runoff enters the creek by seeping through the canyon wa[Is as weI! as by periadic surface flows. Residents have aileged that water in Bruce Creek has resulted in the proliferation of mosquitoes and non-native plant species. In response, Stone Eag(e has periodical[y removed the intrusive vegetation on those properties to which they have been granted access. Staff Report for Stone Eagle Director's Hearing 01-17-08 In addition to the investigation and mitigation measures identified in the May 10, 20�7 staff report, a highly detailed water quality analysis requiring the exper�ise of nine laboratories was performed. The results of this analysis were interpreted by aquatic ecotoxicologist Dr. Daniel Schlenk of UC Riverside and by veterinary toxicologist Dr. Robert Poppenga of UC Davis. The results of the water quality testing indicate that the water is well wi#hin accepted parameters tor a creek. The water quality data has also been forwarded to aq interested parties including affected residents, the developer, the California Regional Water Quali#y Control Board, the California Department of Fish and Game, and the Caachella Valley Mosquito and Vector Control District, for their review. Having carefully evaluated runaff into Bruce Creek and having consulfied with various experts, it is the opinion of staff that the project conforms to #he environmental impact report, the conditions af approval, and the applicable city codes. However, the volume of water does present the potential for unwanted vegetation growth and mosquifio breeding; therefore, staff recommends that the fo[lowing additional mitigation rneasures be imposed on the project: 1. Stone E�g[e shall perform weekly inspections and maintenance of ._ retention pond and pump and provide quarterly reports #o the Director of Community Development. 2. Stone Eagle shail perform monthly inspectians of Bruce Creek (subject to permission to enter private properties); remove non-native plant species and potentiaf mosquito-breeding sites, and provide written reports to the Director of Community Development. The Public Works Department will perform quar�erly inspections at the expense of Stone Eagle. 3. Stone Eagle shall perform annua( water quality bioassays in Bruce Creek by a City-approved laboratary and provide a written report to t�e Director of Community Develapment. Stone Eagle shall be responsible to manage and mitigate nitrates and toxins in Bruce Creek, to levels acceptable to the various agencies with jurisdiction in this matter. 4. Stone Eagle shall post with the City of Pa(m Desert a $50,000 cash deposit to be used in the event af non-performance by Stone Eagle. 5. Stone Eagle sha11 enter into a maintenance agreement with the City for Stone Eagle's management of non-native vegetatian and pest contral. 2. Golf Course Road Residents have indicated fihat the di�t road along the perimeter fencing is unnecessary and unsightly, and creates a PM-10 hazard, Stone Eagle has indicated that portions of the perimefer road are necessary for equipment and vehicle access and could be used by emergency response personnel if needed. Residents have noted that the perimeter fence is of chain-link material rather than the wrought iron ma�erial identified in the EIR. The chain-link fence is preferred by the Department of Fish and Game due to the potential for bighorn sheep to be caught in the wrought iron. Therefore, the City administratively approved the use of chain-link material. G:V'ubWahslLand DeveloAmenft(TR)TraclslTR 3043BIRESlDENT CONCERNS1Meetfngsl�i-17-08 Diredors Hearingl0i-17-08 Stone Eagle Sfalf Report.doc Staff ftepart for Stone Eagle Director's Hearing 01-17-08 Stone Eagle has renaturalized the perimeter road as requested by staff. The Director of Community Development has recently performed inspections of the site and has determined that the road renaturalization is acceptable. 3. Snack Bar Lighting It has been noted that the snack bar lights are left on when not needed at night. Staff i�as observed that the snack bar lights are visibfe late into the night. Staff recommends that S�one Eagle be required to install timers on the snack bar lighting to extinguish them in a fimely manner when not in use. As the Stone Eagle Goif Caurse came into operation, nearby residents raised a number of serious concerns regarding the project. Staff has thoroughly evaluated each of the concerns and taken actions ta ensure campliance with applicabfe codes and regulations. Therefore, staff recommends that, upon conclusion of the above items, the work be deemed complefe and that the process to release the bonds be commenced. _ ._. , _...-- , i " .�--�^""� Mark Greenwood, P.E. Lauri Aylaian Director of Public Works Director of Community Development /dhl G:IPub WorkslLand DevelopmenN('(R)7racfslTR 3093B1RESlDENT CONCERNSVMeetingsV01-17-08 Direcfors Nea�inglOJ-77-08 Stone Eagle SfaRRepoR.COC Stone Eagle Director's Hearing 01-17-08 3:00 PM Administrative Conference Room Assistant City Attorney Robert Hargreaves began the meeting at 3:00 by stating this was a continued Director's Hearing with Stone Eagle for compliance with the conditions of development. Mr. Hargreaves stated that we would make introductions and present the staff report, and then he would open the meeting. Persons in attendance introduced themselves: Bob Hargreaves,Assistant City Attorney, City of Palm Desert Lauri Aylaian, Director of Community Development, City of Palm Desert Spencer Knight, Landscape Services Manager, City of Palm Desert Tim Bartlett, Property Owner, Cahuilla Hills Mark Fisher, Staff Biologist, UCR/Boyd Deep Canyon Dr.AI Muth, Biologist, UCR/Boyd Deep Canyon Kris Schulze, Stone Eagle Terry Cechin, Public Works Inspector, City of Palm Desert Christina Canales,Assistant Engineer, City of Palm Desert Mark Greenwood, Director of Public Works, City of Palm Desert Debra Lee,Administrative Secretary. City of Palm Desert Shawn Kilpatrick, Code Compliance, City of Palm Desert Phil Joy,Associate Transportation Planner, City of Palm Desert (Note: Shortly after introductions were made and the meeting progressed to presentation of the staff report, other participants arrived according to the sign-in sheets:Antoinette Carver, Peter Scheer, and Ted Lennon. Present at the meeting but not on the sign-in sheet were Cahuilla Hills resident Jerry Meintz, and John Criste of Terra Nova.) Mr. Greenwood presented the staff report by stating the following: Concerns arose from Stone Eagle Golf Course project. The biggest concern that remains to date is water runoff from Stone Eagle irrigation into Bruce Creek, and the resulting issues. At the request of residents adjacent to the golf course,the City has done an extensive investigation and procured expert analyses including, as relates to the water quality issue, the use of 9 different laboratories to obtain highly detailed water analyses. The results of these analyses were sent to aquatic ecotoxicologist Dr. Daniel Schlenk at UC Riverside, and to veterinary toxicologist Dr. Robert Poppenga of UC Davis. The results indicate that the water quality is well within acceptable parameters for creek water. Toxicology says the water is safe and healthy for aquatic and mammal life. There remains a concern about potential ponding and,therefore, mosquito breeding as water ebbs and flows. There is also a concern for the potentially rampant growth of non-native species of plants. Staff developed five specific mitigation issues as were outlined in the staff report, and Mr. Greenwood read the five mitigation issues aloud, although not verbatim. Stone Eagle has requested that these conditions be reviewed every five years for adequacy, and staff agrees with this request. It is possible that these measures might not produce the desired results; it is also possible that these measures may not be needed in order to achieve the desired outcome,which would result in a waste of money. As to the issue of the golf course perimeter road, Stone Eagle has renaturalized it. Inspections were performed within the past week and it has been found to be effective and adequate; no additional mitigation measures are recommended for this issue As to the issue of the lighting remaining on at the snack bar, at night, Mr. Greenwood commented that he has personally observed this and that it would be easily remedied by the installation of timers. Upon completion of the mitigation measures and successful execution of an agreement for future performance, staff recommends that the project be finalized and the bonds be authorized for release. Mr. Hargreaves asked if the developer's representatives wanted to comment. Mr. Schulze asked Mr. Greenwood if there is a time when the snack bar lighting should go off. Mr. Greenwood responded that should be "whenever activity ceases." Mr. Schulze said the developer is agreeable to the recommendations as proposed, and that the developer's attorney is currently working with the City Attorney to write an agreement. Mr. Hargreaves stated that there has been no drafting yet,that they are in the talking phase, but that they have made contact. Stone Eagle Director's Hearing Meeting Minutes 01-17-08 Mr. Hargreaves stated that the concept is to take what comes out of this hearing and reduce it to an agreement that will be recorded against the property, with guidelines going forward and the ability to change things in the future if needed, and to make the instrument enforceable with an ongoing assurance that issues will be addressed. Mr. Hargreaves then opened the meeting. Mr. Bartlett stated that Nancy Scott regrets she is unable to attend this meeting and asked to distribute a document on her behalf to be read into the minutes. The document was titled "Response to Director's Hearing Report Dated Jan. 17,2008." Mr. Hargreaves asked Mr. Bartlett to summarize it, stating that he was not interested in reading it but that we will make copies available to anyone who is. Mr. Bartlett stated that the following are his own comments and that he would like to ask for clarification regarding which building is referred to as the snack bar,the one with the lights. He said that if it's the building where they serve lunch, thaYs the "Bar and Grill," but if iYs on the turn between the 9'h and 10tn holes, thaYs the"Pavilion." Mr. Schulze stated that the one with the lights is the"Aerie." Mr. Bartlett said he thinks there are lights on in all the facilities at night, and that although he can't see the light in the new maintenance facility he can see the glow of it in the night sky. Mr. Bartlett said this was not worthy of discussion, and he thought that the"pertormance standard"was worthy of discussion. Stating that the report says"removal," he asked"What is the standard,what would we observe?" Mr. Hargreaves said, "Avoid unreasonable impacts to biological resources and downstream residents." Mr. Bartlett said that, so far, the"removal of unwanted vegetation" has consisted of pulling up only some of it, and then just leaving it there to dry up and create a fire hazard. Mr. Bartlett held up several gallon-sized zipper-type ciear plastic bags and said he had brought samples of the vegetation consisting of moss, algae, and weeds,to show and asked that the group compare it to the one empty bag containing what was growing there before the Stone Eagle development. Mr. Bartlett said that what Mr. Hargreaves had said was encouraging and it sounded good. He stated that the quality of the water concerns him, that it is his understanding from the discussion at the last hearing that the water testing would be done independently of the developer—not using his sampling and water testing people so that it wouldn't be under his control—and that Mr. Bartlett wonders if that was the case because after the first set of results the Stone Eagle group had flushed out the canyon with enough water to create "white water" and that it"seems that reduced the effects of the water testing." Mr. Bartlett stated he had read through the one hundred-or-so pages of the report and that it seems like a lot of the testing was inconclusive, that a lot of variables were not met. Mr. Bartlett stated that he had gone to the EPA website where they have listed specific things to look for that they feel are appropriate to test for, and he began to read from the list but stopped after three or four names because of the difficult words. Mr. Bartlett stated, "I took this off the EPA website regarding water testing"and submitted a printed e-mail to Ms. Lee. Mr. Bartlett stated that his dog becomes violently ili every time she goes down to the creek,that he found a dead coyote under the bridge and that he had heard from neighbors that they a�so found a dead coyote in the creek area. He said he also found a dying duck and dead frogs, He stated that the dead coyotes is odd, that he has heard from people who've lived there 20 years who say the coyotes no longer use Bruce Canyon as a thoroughfare as they used to. Mr. Bartlett stated that the coyotes try to find water at the most convenient source, and that obviously a running stream would be such a convenient source, yet the people say they have recently found coyotes in their yards drinking out of chlorinated and saltwater pools which is apparently not normal, and that based on observations it seems the water in the creek may contain something thaYs harmful. Mr. Bartlett said he had witnessed coyote scat that was,for a few months, more like a tarry substance than normal coyote scat which is dry like a granola bar. He asked if, in fact,the water is fine, why the developer wouldn't want to recapture it since water is so precious now, and pointed out that if you add up the distance between the two creeks they total about a mile in length (0.6 mile for Ramon and 0.4 for Bruce)and that they both percolate into the sand near their lakes, so that it seems it would be simple to capture that water it and put it back into the lake? Mr. Bartlett stated that he believes the water is percolating into the sand and entering the Palm Valley Storm Channel, but the Director of Public Works says that's not the case, and if that's true then it's percolating into the drinking water unless iYs going somewhere else, and that he hopes iYs going into the Channel. The water Page 2 of 4 Stone Eagle Director's Hearing Meeting Minutes 01-17-08 increases at night; so does the runoff and so does the Palm Valley Storm Channei. Someone alerted Code Compliance that there's a lot more water. Mr. Bartlett stated that he has found areas in the concrete-lined channel that could be mosquito habitat, and that the Ramon Creek pipe is percolating up out of the ground.They're using contaminated water to begin with so if they don't want to capture it, Mr. Bartlett can understand. Mr. Bartlett then stated that"the problem we have is the effects of the water"and that even if it's pure water, the effect it has on the environment has changed his enjoyment of the property, but that perhaps the statement relative to unreasonable mitigation will take care of it. Mr. Bartlett further stated that he has noticed significant erosion,that"we've probably lost 6 to 8 inches of soil or rock, side and bottom of channel,"that he heard from Katie Burrows that channeling of the wash would be unfeasible,which Mr. Bartlett found interesting because they actually did hire a guy and dug out a channel that has helped to keep water moving,and that they,the property owners, have been generous in offering to accept a gutter of contaminated water, contaminated water running on their property on a regular basis. Mr. Bartlett said that the comment that Fish and Game would never allow it, he didn't know about that, because they created a stream, so to say that lining the channel using native material would be an environmental disaster seems to be in conflict and seems ridiculous. fn the stafF report there's talk about the property owners of Cahuilla hills contributing to the water runoff. They say there is an approximate 100-gallon effluent per person per day; at 2,700 residents(an overestimate),that is 270,000 gallons per day compared to the millions of water"they"contribute, and that the day that they used hydraulic cement to put in the liner,they created a permanent seal between the rock and the liner, and the following day water started coming around the `Y.' [Note:At this point Mr. Bartlett had been speaking for approximately 20 minutes.] Mr. Hargreaves interrupted Mr. Bartlett and asked if he can wrap his comments up soon. Mr. Bartlett asked to read a document he had with him,stating that most of it was submitted at the last director's hearing but he believes it wasn't actually heard but rather submitted as an exhibit. Mr. Bartlett stated that the City has not acted in good faith, but that since he has submitted the document before, he supposed he was finished. Mr. Hargreaves stated he wants a synopsis of substance rather than details. Mr. Hargreaves asked the biologists (Dr. Muth and Mr. Fisher) present if they had reviewed the water quality reports,to which they answered that they had "looked it over"and that the general summary stated from a toxicology standpoint was that the water was perfectly safe to drink and that the presence of water fleas indicates a healthy ecosystem. Dr. Muth stated that they could not speak to protocol and lab chosen, but that it was their impression that the creek is a recovering habitat. Mr. Criste asked if Dr. Muth knew the people at UC Davis and UC Riverside and Dr. Muth said that he does not know Dr. Poppenga nor Dr. Schlenk. Mr. Greenwood highlighted the sampling and testing process, stating that to ensure impartiality the City issued a Request for Proposals to the public and to a number of laboratories, requesting assistance in pertorming water quality analysis. The City received a couple of proposals and selected Surabian Ag Laboratory and Consultants, Inc. as the sampling lab and distributor of the samples, based on cost. The City is not aware that they have had any involvement with Stone Eagle and it wasn't part of the selection process to ascertain that. Surabian Labs sent the water out for testing. Because of the detailed nature of the testing requested, it was circulated to seven other labs because of the expertise needed. The summary lists what the critical levels are of the various constituents and what the found levels were, and all were within the acceptable range for creek water; it is not to drinking water standards but it is not dangerous. In addition,they tested for pesticides, fungicides, and herbicides with the exception of "Monument." Because"Monument" is not known to be dangerous, no protocol exists for testing for its presence. The test for"Revolver"was inconclusive because of potential interaction with Monument. Some chemicals were present but because there is no protocol there's no evidence that the water is dangerous. The results were sent to an aquatic ecotoxicologist from UCR who reviewed the results and indicated that he wanted one more level of testing, so a bioassay was performed. Residents were notified of the testing and invited to watch, and some did watch the samples being taken and the labels applied. Mr. Bartlett interrupted to state that one resident was invited. Mr. Schulze stated that Ms. Scott, who was present at the sampling, stated at that time that Mr. Bartlett was out of town, and that Mr. Davenport was also present at the sampling. Mr. Greenwood continued by saying that the bioassay was completed and Page 3 of 4 Stone Eagle Director's Hearing Meeting Minutes 01-17-08 the report was that the water was healthy. The veterinary toxicologist also returned a report that the water was healthy. Mr. Knight stated that the laboratories involved were very careful about their protocol, which is why this process took such a long time. Dr. Muth asked to comment on the bagged plants that Mr. Bartlett brought. Holding up a bag he stated that one plant was a seedling tamarisk,that they sprout quickly,that he has observed a few of them down at the"big drop-off" in Bruce Creek, and that they will have to be repeatedly removed because they can't be gotten rid of. Dr. Muth identified another plant as papyrus and said they did not see this plant the last time they came down through there, so he thinks it is a recent invader. He stated that the rest of the plant material appears to be native. Dr. Muth said that willows, cottonwoods, sedges, and arrow weed are to be expected and are desirable. He stated that if you look closely in one bag you see aquatic beetles, which is a sign of normal material and indicative of a good healthy ecosystem. Dr. Muth stated that algae is good thing to have. Mr. Criste asked whether there were other insults to the creek that were not caused by the golf course and if so,would they be remediated. Mr. Hargreaves responded that there will be a maintenance agreement that sets as a general standard that the golf course will be required to mitigate only the impacts from the water from the golf course, and that staff has prepared the mitigation measures. There will be an ongoing review and the ability to address the undetermined aspects of the agreement—for example, if it becomes a mosquito problem according to the mosquito abatement district,then remedial action will be taken against that. Mr. Bartlett asked if that were meant to be at any time, or after five years, and Mr. Hargreaves answered that at any time a problem is recognized it will be remediated,they won't wait five years if there is a problem identified. There will be a strategy, but if something comes up that wasn't identified then we have the ability to reopen the process and address it. The elaborate testing appears to be adequate but if it appears we have a water quality problem it will be addressed. Mr. Shulze asked who will define"unreasonable impact." Mr. Hargreaves answered that it will be at the discretion of the Director of Public Works to make that determination, and if people aren't happy with his decision it can be litigated but the important thing is to take what comes out of this process and develop an agreement that will be shared with everyone before it's executed. Ms. Carver asked if the agreement would remain in effect should the project be sold and Mr. Hargreaves stated that the agreement will be recorded against the property and whomever owns it will be responsible for it.The ultimate sanction will be to shut off the irrigation,which will be a strong incentive for compliance. Ms. Carver commented that Stone Eagle has done an excellentjob of stemming the flow of water into Ramon Creek. Mr. Hargreaves stated that he is inclined to find as staff recommends and that upon entering into the (future)agreement the City will find the project in compliance and move forward. Mr. Hargreaves stated that he appreciated everyone's participation and that the agreement will be circulated for comment before the City enters into it, and that the meeting was now closed. Mr. Bartlett asked if he may ask one question before the meeting was closed and Mr. Hargreaves said he could. Mr. Bartlett said that the residents were told that a finai wouldn't be given until the matter was resolved. Mr. Greenwood stated that the finals have been withheld and wili continue to be withheld until these conditions are in place and enforceable. Mr. Bartlett ask who"everyone" is when Mr. Hargreaves said that everyone will see the agreement prior to its finalization and Mr. Hargreaves replied that "everyone"was everyone on the distribution list, including Mr. Bartlett. Mr. Hargreaves closed the meeting at 3:56 PM. Minutes recorded by Debra Lee. Page 4 of 4 BEST BEST & KRIEGER nz-ro�uv�s wT i.nw March 3, 2008 Memorandum To: Mark Greenwood CLIENT-MATTER NO.: 72500.00677 Director of Public Works CITY OF PALM DES FaoNr: Robert W. Hargreaves, ssi Attorney RE: Stone Eagle: Recommendation After DYrector's Hearing BACKGROEJND The Stone Eagle Golf Course Project has been under construction and review for several years. Stone Eagle has requested that the City accept the Project as complete, and that the bonds be released. A number of issues have been raised regarding compliance with the conditions of approval, the mitigation plan in the EIR, and city codes and state statutes. Several neighbors have expressed concern. In order to facilitate input into the decisian making process, and ta have an open discussion of issues of public concern, you appointed me to serve as hearing officer, to take public testimony and to make a recommendation. Pursuant to that appointment, public hearings were held on May 17, 2007 and January 17, 2008. Numerous reports and letters have been received, as well as substantial public testimony. I have summarized below my findings, the evidence supporting those findings, and my recammendations. RECOMMENDATION I recommend that the Project be received as complete, upon execution and recording of a maintenance agreement that will ensure an ongoing program of adaptive management to address potentially harmful effects of water discharges from the Project as well as other potential on-going issues. Particular aspects of the recommended maintenance program are included below. ISSUES APID FINDINGS 1, Run-Off into Bruce Creek. A. Findings (1) The Project does cause subsurface drainage into Bruce Creek that currently causes appreciable and continuous water flows in the Creek, that did not exist in a nat�aral condition. RM PUB\RHARGREAV ES�292742.5 BEST BEST & KRIEGER ATTORNEYS AT LAW • It is not seriously contested that flows from the golf course project are the principal current source of ongoing flows in the Creek. There is evidence that other adjoining praperties contribute to flows in Bruce Creek, at least on an intermittent basis. (2} The flows in Bruce Creek do not currently have a significant deleterious impact on the public health, safety, or welfare, and are not injurious to the natural environment, nor to adjacent properties. • There is testimony from several biologists that the Creek is a healthy eco-system that does not tY�reaten natural habitat values. • Extensive water quality testing was performed. Aquatic and mammalian toxicotogists opined that the water is not injurious to aquatic or terrestrial life. • State regulatory agencies, such as the Regional Water Quality Control Boarc�, and the State Department of Fish and Game,have inspected the Creek and have not initiated any regulatory actions. • Neighbor reports of toxicity of water to dogs and coyotes are not confirmed by either water quality testing or biologists. • Non-native vegetation can be controlled by an on-going maintenance program. (3) Neighbor Reports of Extensive Mosquito Infestations are Not Confirmed by Responsible Agencies. • Representatives of the Coachella Valley Mosquito and Vector Contral District have inspected the Creek at various times and have concluded that although the potential for mosquito breeding exists, the cu�rrent management efforts have been effective in controlling the problem. The District will continue to monitor and address problems if they arise. (4) Ongoing management of the creek environment will be necessary to ensure that deleterious impacts do not arise. � CVMVCD indicated that Bruce Creek posed a potential for mosquito breeding habitat and needs to be carefully monitored and controlled. • Biologist opined that ongoing controf of non-native vegetation will be necessary to reduce vegetation and rnaintain the free-flowing nature of the Creek. - 2 - RMPUBIRHARGTiEAV ES�292742.5 BEST BEST & KRIEGER A'Y'T'ORNEYS AT LAW (5) Channelization of the creek is not a feasible alternative. • Channelization would require permits from the Army Corps of Engineers, and the California Department of Fish and Game,which would require extensive studies and would not likely be granted. � Channelization would likeIy negatively impact natural values of the stream. (6) Flows into Ramon Creek have been effectively eliminated, but will continue to be monitored. B. Recommendation (1} Stone EagIe be required to enter into and record against the golf course property a maintenance agreement committing the owner to implement mitigation measures reasonably required by the City to ensure that the drainage flows from the golf course into Bruce and Ramon Creeks do not cause injury to biological resources or adjoining property owners. The initial mitigation plan shall require: (a) Stone Eagle shall cause weekly inspections to be made of the retention ponds and pumps in Bruce and Ramon Creeks, and shalt cause any required maintenance to be performed so that such facilities can serve their intended purpose. Stone Eagle shall provide the City with quarterly reports, addressed to the Director of Community Development, setting forth the dates of such inspections, the observations made during the inspections and any actions taken; (b) Stone Eagle shall: {i) cause monthly visual inspections of Bruce and Ramon Creeks (subject to permission to enter private properties); and (ii) cause (x) the removal of non-native plant species, and (y) the remediation of potential mosquito-breeding sites. Stone Eagle shall provide written reports to the Director of Community Development of observations made and actions taken. The Public Works Department will perform quarterly inspections at the expense of Stone Eagle; (c) Stone Eagle shall cause annual water quality bioassays to be taken in Bruce Creek by a City-approved consultant and shall provide a written report to the Director of Community Development. There is no intent to improve the quality of the water in the Creek (which is not potable) in excess of the quality that woutd exist without artificial drainage from the golf course, or in excess of the quality necessary to ensure that drainage from the golf course does not cause injury to biological values or adjoining property owners. Stone Eagle shall be responsible to manage and mitigate nitrates and toxins in Bruce Creek, ta levels acceptable to the City, Stone Eagle shall not be responsible for any mitigation of nitrates and toxins which are contributed by other property; (d) Stone Eagle shall post with the City of Palm Desert a$50,000 bond to be calied in the event of non-performance by Stone Eagle; - 3 - RMPU&1RHARGREA V ES1292742.5 BEST BEST & KRIEGER ATTpANEYS AT LAW (e) Stone Eagle shall enter into a maintenance agreement with the City for Stone Eagle's management of non-native vegetation and mosquito vector control. 2. Golf course perimeter fencing and road. A. Findings (I) Stone Eagle has adequately addressed concerns regarding the re-naturalization of the perimeter road to the satisfaction of the Director of Community Development; (2) Permanent fencing was originally required to be wrought iron, but was modified with the approval of the Director of Community Development, upon recommendation from the Department of Fish& Game,that chain link fencing was preferable to protect the bigharn sheep. B. Recommendation (1} Maintenance agreement shall require adequate maintenance of fencing. 3. Access to adjacent property. A. Findings (1) This is a private dispute between adjoining property owners that does not implicate Stone Eagle's compliance with the City's conditions for approval, (2} Issues with respect to the trail are within the jurisdiction of the City, and have been addressed. 4. Maintenance af debris basin. A. Findings (1) Installation of gasoline-powered pumping system to dewater the basin has proven to be an effective alternative to the originally-required, but likely more damaging, subsurface drainage system. B. Recommendation (1) Maintenance agreement will ensure ongoing maintenance of basin and pumping system, and ensure that pumping complies with City sound ordinances. 5. Temporary eguipment pad. A. Findings (1) Neighbor complaints have been addressed by removal of equipment and temporary storage area, and installation of a berm. -4 - R M P U B\R NARG R E A V E S 1292742.5 BEST BEST & KRIEGER ATTORNEYS AT LAW 6. Golf course exceeded average acreage of turf. A. Findings {1} There is no evidence to substantiate this concern. 7. Water source for golf course irrigation. A. Findings (1) There is no requirement in the conditions of approval that potable water be blended with non-potable water sources to manage nitrate levels, and any such blending would be wasteful of higher quality,potable water supplies. 8. Snack bar. A. Findings {1) Snack bar did receive architectural approval from the Community Development Director. (2) Snack bar lighting after hours has been a problem. B. Recommendation: Stone Eagle shall install timer to regulate lighting, so that it shal] be extinguished or shielded within one hour after dark. Maintenance agreement will provide for ongoing review of lighting issues. 9. Maintenance Bu'rlding. A. Findings (1) The former Community Development Director reviewed and approved the Maintenance Building at staff level and no further review was warranted. (2) Landscape planting and re-naturalization adequateiy addressed concerns regarding screening. B, Recommendation (1) Maintenance agreement will require mitigation of nuisance (after hour} lights and noise at this facility. 10. Comfort station septic systems. A. Findings (1) Comfort station septic systems have been appropriately approved. (2) Additional screening has been added to address visual impacts. - S - R M P U B Ut HARG RE A V E 51292742.5 BEST BEST & KRIEGER ATTORNEYS AT LAW 11. Residential pads. A. Findings (1} The grading af residential pads did conform to approval of Director of Community Development and requirements of Army Corps of Engineer permit. The final grading plan disturbed significantly less natural hillside than was originally approved. 12. Archeological sites. A. Findings (1} There is no evidence that archeological sites were destroyed during grading. C�NCLUSION Stone Eagle shall be required to enter into and record a maintenance agreement that will provide: (a} Stone Eagle shall have a continuing duty to mitigate impacts to Bruce and Ramon Creeks caused by golf course run-aff and drainage in a manner that avoids unreasonable ianpacts to biological resources or adjoining properties. The tnitigation plan shall initially include the steps outlined below, but may be axnended by the City, in consultation with owner and other interested parties, as necessary from time-to-time,to address the evolving situations in the Creeks. (b) The initial mitigation operation plan shall include: (1) Stone Eagle shall cause weekly inspections to be made of the retention ponds and pumps in Bruce and Raman Creeks, and shall cause any required maintenance to be performed so that such facilities can serve their intended purpose. Stone Eagle shall provide the City with quarterly reports, addressed to the Director of Community Development, setting forth the dates of such inspections, the observations made during the inspections and any actions taken; (2) Stone Eagle shall: (i) cause monihly visual inspections of Bruce and Ramon Creeks(subject to permission to enter private properties); and {ii) caus� (x)the removal of non-native plant species, and (y) the remediation of potential mosquito-breeding sites. Stone Eagle shall provide written reports to the Director of Community Development of observations made and actions taken. The Public Works Department will perform quarterly inspections at the expense of Stone Eagle; (3) Stone Eagle shall cause annual water quality bioassays to be taken in Bruce Creek by a City-approved consultant and shall provide a written report to the Director of Community Development. There is no intent to improve th� quality of the water in the Creek (which is not potable) in excess of the quality that would exist without artificial drainage from the golf course, or in excess of the quaiity necessary to ensure that drainage fram the golf course does not cause injury to biological values or adjoining property owners. Stone Eagle shall be responsible to manage - 6 - RM PU8IRHARGREA V ES�292742.5 BEST BEST & KRIEGER ATTORNEYS AT LAW and mitigate nitrates and toxins in Bruce Creek, to levels acceptable to the City. Stone Eagle shall not be responsible for any mitigatian of nitrates and toxins which are contributed by other property; (4) Perimeter fencing shall be maintained in a serviceable and esthetic condition. (5) Debris Basin shall be maintained and pumping system shali conform to the Cifiy's noise ordinance. (6) Lights from snack bar, maintenance facility, and other golf course facilities shall be regulated to prevent lighting after dark when facilities are not being used. (7) Additional screening shall be added, if necessary, to effectively screen comfort stations. � (8) ' Stone Eagle shall post with the City of Palm Desert a $50,004 bond to be called in the event of nan-performance by Stone Eagle; (c) The Agreement shall provide the ability to reopen the mitigation review process should problems arise, and require review of the mitigation program as a whole at least every five(5) years. (d) The Agreement will provide a dispute resolution process and remedies and sanctions sufficient to ensure adequate mitigation, RWH:dm cc: David J. Erwin, Esq. - 7 - RMPUBUtHARG REA VES1292742.5 STONE EAGLE RUN-OFF Director's Meeting CONTACT LIST Developer: Ted Lennon TlennonCc�loweenterprises.com Kris Schulze kschulzeCa�loweenterprises.com John Criste icristeCa�terranovaplannin .q com Developer contacts who were not sent notification: Nizar Farhat nfarhatCa�loweenterprises.com Bill Munson bmunsonCa�loweenterprises.com Scientists: AI Muth deepcanyonCa�mindspring.com Mark Fisher sandlizardsC�mindspring.com Water and other agencies: Doug Wylie dwylieCa�waterboards.ca.gov John Carmona jcarmonaCc�waterboards.ca.gov Rod Chamberlain rchamberlainCa�cvmvcd.orq Steve Bigley sbigleyCa�cvwd.org Kim Nicol knicolCc�dfa.ca.gov City: Terry Cechin tcechinCa�ci.palm-desert.ca.us Phil Joy pjoy@ci.palm-desert.ca.us Lauri Aylaian IavlaianCa�ci.palm-desert.ca.us Bob Hargreaves Robert.hargreavesCc�bbklaw.com Mark Greenwood mgreenwoodCa�ci.palm-desert.ca.us Hart Ponder hponderCa�ci.palm-desert.ca.us Shawn Kilpatrick skilpatrickCc�ci.palm-desert.ca.us Earth Systems Southwest: Craig Hill 345-1588 chill@earthsys.com Scot Stormo sstormo �earthsys.com Residents: Peter Schear Peter c(�.miraqecenter.com Nancy Scott TRYLIFE2Ca�aol.com Toni Carver cuentistaC�dc.rr.com Bill Carver carvermgmtCa�msn.com Tim Bartlett bartlettcCc�aol.com Janice Wood icw4257.1Ca�juno.com Piero Pierattoni pierop@earthlink.net Doug Hart dough@springsclub.com The following affected residents were not contacted because we have no e-mail address for them. For previous meetings we had sent notifications in the U.S. mail. None of these residents ever appeared at any of the meetings. Jim Richards Gordon & Ruth Dewitte Craig Davenport Craig Reisfield Contract No. C28130 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Palm Desert 73-510 Fred Waring Drive Palm Desert, California, 92260 Attn: Telephone: (310) 312-4217 Telecopier: (310) 914-5844 MAINTENANCE AGREEMENT by and between CITY OF PALM DESERT a California municipal corporation and STONE EAGLE DEVELOPMENT, LLC a Delaware limited liability company 41286388.6 � Contract No. C28130 MAINTENANCE AGREEMENT This MAINTENANCE AGREEMENT ("Agreement") is dated as of , 2008 ("Effective Date"), by and between the City of Palm Desert, a California municipal corporation ("City") and Stone Eagle Development, LLC, a Delaware limited liability company("Owner"). The City and Owner enter into this Agreement with reference to the following facts (each, a"Recital"): RECITALS A. Owner owns certain real property commonly known as the Stone Eagle Golf Course (the "Property") located in the County of Riverside, State of California, which Property is more particularly described on Exhibit A-1, and depicted in Exhibit A-2 attached hereto. B. The City has expressed concerns about the potential impacts on Bruce Creek and Ramon Creek of subsurface drainage from the golf course developed on the Property. C. In response to such concerns, and to mitigate any potential impact which arises from the Property, Owner has agreed with City that so long as a golf course is operated on the Property, Owner or its successors and assigns as owner of the Property will comply with the terms and conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, City and Owner (each herein sometimes called a "Party" and jointly the "Parties") hereby agree as follows: AGREEMENT 1. Term The term of this Agreement shall commence on the Effective Date and, unless earlier terminated by the City in its sole and absolute discretion, continue in full force and effect until such time as there is no longer an operating golf course on the Property("Term"). 2. Owner Obli�ations The following are herein called the "Owner Obligations:" 2.1 General Dutv. Owner shall have a continuing duty to mitigate impacts to Bruce and Ramon Creeks caused by golf course run-off and drainage in a manner that avoids unreasonable impacts to biological resources or adjoining properties. The mitigation plan shall initially include the steps outlined below, but may be amended by the City, in consultation with Owner and other interested persons, as necessary from time-to-time, to address the evolving situations in the creeks. 41286388.6 2 Contract No. C28130 2.2 Initial Mitigation Measures. 2.2.1 Owner shall cause weekly inspections to be made of the retention pond and pump located in Bruce Creek and Ramon Creek in the area of the Property delineated on Exhibit B hereto, and shall cause any required maintenance to be performed so that such facilities can serve their intended purpose. 2.2.2 Owner shall (i) cause monthly visual inspections of Bruce Creek and Ramon Creek to be performed in the locations shown on Exhibit C hereto (the "Inspection Area") (subject to Owner's obtaining permission from the necessary landowners to enter private properties as needed in order to obtain such access), and (ii) cause (x) the removal of non-native plant species, and (y) the remediation of potential mosquito-breeding sites, in the Inspection Area. 2.2.3 Owner shall retain a City-approved consultant to perform annual water quality bioassays of the type set forth on Exhibit D hereto in Bruce Creek at the Inspection Area and to provide an annual report thereof to Owner and to the Director of Community Development of the City. Owner shall perform such bioassays no later than August 1 of each year. If the test far Aquatic Toxicity — 96 Hour Acute Ceriodaphnia Survival has a 90% survival rate, then no further testing is required that year. If such survival rate is less than 90%, then additional testing shall be performed to determine the levels of the constituents shown and to determine the cause of the toxicity. City acknowledges that the water in Bruce Creek is not potable and that there is no intention of improving the quality of the water in Bruce Creek to a quality higher than the quality necessary to ensure that drainage from the Project does not degrade biological values or biologically degrade property located adjacent to the Creeks. To the extent required, and to the extent feasible by changing the drainage on the Property and taking no other act, Owner shall mitigate mtrate and toxin levels in Bruce Creek to levels which do not exceed the levels far such substances set forth on Exhibit D hereto. City recognizes (i) that property other than the Property contributes drainage to Bruce Creek, (ii) that Owner shall have no obligation to perform any work on property other than the Property, and (iii) that because of the drainage from property other than the Property it may not be possible for Owner to mitigate the levels of mtrate and toxins in Bruce Creek. 2.2.4 Owner shall provide to the City annually no later than July 1 of each year, a list of pesticides applied to the Property (including, without limitation, msecticides, herbicides, fungicides and miticides). The City shall have the right, within thirty (30) days after receipt of such list, to reasonably require additional tests to be performed to assess the presence of additional compounds, based on such annual list of applied pesticides. 2.3 Quarterlv Reports. Owner shall provide the City with quarterly reports setting forth the dates of inspections of Bruce Creek and Ramon Creek, the observations made during such inspections, and the action (if any) taken as a result of such inspections. 2.4 Amendment of Maintenance Duties. The Parties hereby acknowledge that the Owner Obligations may, from time to time, need to be revised to fulfill Owner's General Duty as required by the changing environmental condition of Bruce Creek and Ramon Creek and the surrounding properties, or if the testing program set forth herein does not warrant the time or expense involved. Therefore, the Owner Obligations shall be reviewed every five (5) years during the Term and, after such review, may be amended by a written agreement signed by the City and Owner to increase or decrease the obligations set forth herein. If City and Owner fail to 41286388.6 3 Contract No. C28130 agree, City may impose new or modified mitigation measures reasonably necessary to fulfill Owner's General Duty, subject to the Conflict and Dispute Resolution provisions of Section 3. . 2.5 City Ins eU ction. The City may perform quarterly inspections of the Inspection Area. Owner shall reimburse City for the reasonable, documented cost of such inspections, not to exceed the sum of$2,500 per quarter (the "Inspection Cost"). The Inspection Cost shall be increased beginning on January 1, 2013, and every five years thereafter (each, an "Adjustment Date"), by multipl}nng the Inspection Cost in effect immediately prior to the Adjustment Date in question by a fraction, the numerator of which shall be the CPI (as defined below) in effect on October 31st of the year immediately proceeding the Adjustment Date in question, and the denominator of which shall be the CPI in effect on the date that is five (5) years prior to the Adjustment Date in question. The term "CPI" shall be defined as the Consumer Price Index for All Urban Consumers for Riverside County published by the Bureau of Labor Statistics of the United States Department of Labor. If the CPI is replaced, the Parties shall use such other cost- of-living index as, in the Parties' reasonable judgment, most closely approximates the CPI. 2.6 Performance Bond. Owner shall post a fifty thousand dollar ($50,000.00) performance bond (the `Bond") with City to secure the performance of the Owner Obligations. Owner shall maintain the Bond in effect during the Term. 2.7 Maintenance Deficiencv. If, in the City's reasonable opinion, Owner has failed to perform any of the Owner Obligations , as from time to time modified pursuant to this Agreement, and/or the current mrtigation measures are inadequate to accomplish the General Objective, (collectively "Maintenance De�ciency") the City shall notify Owner in writing of such Maintenance Deficiency("Deficiency Notice"). Within ten (10) days of Owner's receipt of the Deficiency Notice, Owner shall, in wnting, (i) agree to remedy the Maintenance Deficiency in a mutually agreed-upon time and manner, or (ii) dispute the City's Deficiency Notice. If the Parties are unable to agree to the timing and/or manner of cure, then the Parties shall resolve the Maintenance Deficiency issue in accordance with Section 3 hereof. If the City believes that the Maintenance Deficiency represents an imminent threat to health and safety of persons or natural resources and/or to preservation of property, the City shall have the right to umlaterally require a cure within a resonable time under the circumstances, pursuant to its general power to abate public nuisances, and without resort to the Conflict and Dispute Resolution process described in Section 3, subject to Owner's right to seek prompt judicial review. 2.8 Cure. If Owner fails to remedy the Maintenance Deficiency either (a) within the time period previously agreed to in writing by the Parties or (b) by the date required in a written decision by the City pursuant to Section 3 stating that the disputed Maintenance Deficiency must be cured, the City shall have the right, but not the obligation, to perform the necessary maintenance to cure the Maintenance Deficiency. In the event the City has performed the work necessary to cure a Maintenance Deficiency, the City shall submit a written invoice ("Initial Invoice") to Owner for all reasonable costs incurred by the City to perform such work, together with a statement that Owner must pay such invoice in full within thirty (30) days of Owner's receipt of the invoice. If Owner disputes the amounts due pursuant to the Initial Invoice ("Initial Invoice Amount"), the Parties shall endeavor to resolve the dispute in good faith. If the Parties are unable to agree on an Initial Invoice Amount, then the Parties shall resolve the dispute in accordance with Section 3 hereof. If Owner does not respond to the Initial Invoice, the City shall submit to Owner a second written invoice ("Second Invoice") stating that the City will draw down the Bond in an amount equal to the reasonable costs due if Owner does not respond within ten (10) days of its receipt of the Second Invoice. If Owner does not respond to the Second Invoice within the ten (10) day period, the City shall draw down the Bond in the amount equal to its reasonable costs to cure the Maintenance Deficiency. 2.9 Lightin Miti ation. Owner shall regulate the lighting at the pavilion, 41286388.6 4 Contract No. C28130 maintenance facility and other golf course buildings, so that lighting is minimized commencing one (1) hour after any such facility has ceased being used for a given day (recognizing that such facilities do not have a uniform closing time, so the cessation of lighting shall vary from time to time and from facility to facility, based upon the usage on any given day of the facility in question). 2.10 Fencing Miti�ation. Owner shall maintain perimeter fencing around the Property. 2.11 Noise Miti ation. Owner shall use commercially reasonable efforts to control the volume of noise emanating from the Property maintenance facility after the Stone Eagle Golf Course and all areas thereof are closed for the night and prior to the time when they reopen in the morning. Owner shall adopt and enforce policies designed to maintain compliance with the City's noise ordinance. 3. Conflicts and Dispute Resolution In the event there is a dispute in connection with the interpretation of or performance under this Agreement, including without limitation a dispute regarding a Maintenance Deficiency, and the complaining party has provided written notice to the non-complaining party detailing with particularity the claimed dispute (the "Dispute Notice"), then the City and Owner will promptly endeavor in good faith to resolve such dispute. If no resolution can be reached within 30-days of delivery of the Dispute Notice to the non-performing party, or within such other time frame as the parties may mutually agree, then the City shall have the right to unilaterally impose a reasonable cure, subject to Owners right to challenge any such imposition by prompt judicial review. 4. Hold Harmless A�reement Owner hereby agrees to and shall indemnify and hold the City, its elective and appointive boards, commissions, officers, agents and employees harmless from any liability for damage or claims for damages for personal injury, including death, as well as from claims for property damage or inverse condemnation, which may arise from Owner's ar Owner's contractors' subcontractors' agents' or employees operations under this Agreement, the City's approval of the Stone Eagle Golf Course or the City's approval or rejection of any mitigation measures pursuant to this Agreement, whether such operations be by Owner, or by any persons directly or indirectly employed by or acting as agent for Owner. This provision shall survive and continue for a penod of one (1) year after the termination of this Agreement. The City shall have the right to select its own counsel to defend it in any indemnified claim unless either (i) Owner is also sued and its counsel can defend all parties or (ii) Owner's insurer requires engagement of counsel other than that selected by the City. In the event of any legal action instituted by a third party or any governmental entity or official arising out of the approval, execution or implementation of this Agreement (exclusive of any actions brought by Owner) including such actions brought pursuant to the provisions of the California Environmental Quality Act, Owner agrees to and shall cooperate fully and join in the defense by the City of such action and shall indemnify and hold the City, its elected and appointive boards, commissions, officers, agents and employees harmless from any liability for damages, costs or attorneys' fees which may arise from such action. This provision shall survive and continue for a period of one (1) year after termination of this Agreement. The City shall have the right to select is own counsel to represent it any action of the type referred to in this paragraph. 41286388.6 5 Contract No. C28130 5. General Provisions 5.1 Headin�s. Section headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement. 5.2 Binding Effect; Successors and Assig�ns. This Agreement shall be binding upon, and inure to the benefit of, the Parties hereto and their respective successors and assigns. 5.3 Severabilitv. If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions of this Agreement shall continue in full force and effect, unless and to the extent the rights and obligations of any of the Parties has been materially altered or abridged by such holding. 5.4 Covenant Runnin�with the Land. Owner's covenants to maintain the Property in accordance with this Agreement are covenants which shall run with the land, shall bind Owner's successors and assigns and shall remain in effect for so long as the Property is used as a golf course facility. Owner shall only be liable for complying with this Agreement during the time when Owner owns the Property; thereafter, the obligations set forth herein shall be the responsibility of Owner's successor(s) as owner of the Property. 5.5 Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by the duly authorized representative of the party against whom enforcement of the waiver is sought. No waiver of any right or remedy in respect of any occurrence or event shall be deemed a waiver of any right or remedy in respect of any other occurrence or event. 5.6 No Partnership or Joint Venture. The Parties hereto agree that nothing contained in this Agreement shall be deemed or construed as creating a partnership,joint venture, or similar relationship between City and Owner. 5.7 Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California. 5.8 Notices. Any notice or communication required hereunder between City and Owner must be in writing and may be given personally,by first class United States mail, postage prepaid, or by reputable overnight delivery service which provides confirmation of receipt in writing. Either party hereto may at any time, by giving ten (10) days' written notice to the other party hereto, designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to the parties at their addresses set forth below: 41286388.6 6 Contract No. C28130 To City: City of Palm Desert 73-510 Fred Waring Drive Palm Desert, California 92260 Attn: Director of Community Development With a copy to: Best, Best &Krieger, LLP 74-760 Highway 111, Suite 200 Indian Wells, CA 92210 Attn: Robert W. Hargreaves, Esq. To Owner: Stone Eagle Development, LLC 74001 Reserve Drive Indian Wells, CA 92210 Attn: Tom Cullinan With a copy to: Manatt, Phelps &Phillips, LLP 11355 West Olympic Boulevard Los Angeles, CA 90064-1614 Attn: Timi A. Hallem, Esq. 5.9 Time is of the Essence. Time is of the essence in this Agreement. 5.10 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original. 5.11 Full Size Copies of Exhibits. Twenty-four(24) inch by thirty-six (36) inch copies of Exhibits A-2, B, C and D shall be delivered to and maintained by the City of Palm Desert City Engineer for clarity of review. Reduced copies (8 1/2 by 11 inches) shall be attached to the executed versions of this Agreement. 41286388.6 ] Contract No. C28130 IN WITNESS WHEREOF, City and Owner have entered into this Agreement as of the date first written above. DECLARANT: STONE EAGLE DEVELOPMENT, LLC, a Delaware limited liability company By: LOWE STONE EAGLE CORPORATION, a California corporation, Manager of Stone Eagle Development, LLC, a Delaware limited liability company By: Ted Lennon, President of Lowe Stone Eagle Corporation, a California corporation By: Name: Title: [signatures continued on next page] 41286388.6 8 Contract No. C28130 CITY: CITY OF PALM DESERT, a California municipal corporation By: Jean M. Benson, Mayor ATTEST: By: Rachelle D. Klassen, City Clerk APPROVED AS TO LEGAL FORM: BEST, BEST &KRIEGER, LLP By: David J. Erwin 41286388.6 9 EXHIBIT A-1 [ATTACH LEGAL DESCRII'TION] 41286388.6 1� EXHIBIT A-1 PROPERTY DESCRIPTION STON�EAGL6 MAINTENANC�AGREEMBNT TEfE STONE EAGLE GOLF COURSE{TNE"PROPERTY")IS LOCAT�D IN TH� COUNTY OF RIVERSIDE, STATE OF CALIFORNI:A, WHiCH"PROPERTY"IS MORE PARTtCULA12LY DESCRIBED AS. LOT"A"OF TRACT 30438-1, RECORDED ON FEBRUARY 25,2004,IN BOOK 35 OF MAPS, PAGES [-4,OFPICE OF THE COUNTY RECORDER 4F RIVBRSIDE COUNTY,CALIFOI�NIA. 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EXHIBIT D Proposed Laboratory 7esting Program Test Drinking Water Limit(for AquaUc Life Protection Aquatic Tozicity Notes reference onl f Bioassay Aquatic Toxicity-96 Hour Acute Ceriodaphnia Survival Bioassay NA NA 90°/a Survivat General Minerals Ikalinit -Bicarbonate NA >20 NA Lower limit is the fkalinit -Carbonate NA >20 NA sum of all three lkalinity-Hydroxide NA >20 NA types of alkalinity Conductivity(Specific Conductance) 900 umhos/cm !JA NA SMCL ToEal Dissolved Solids 500 mg11 ED NA SMCL �gqg 0.5 mgA NA NA SMCI Py 6_5 to 8.5 pH units 6.5 to 9 FE units NA Ma or Cations Cafcium NA NA NA Sodium NA NA NA Potass9um NA NA N'�' Ma nesium � NA �A Anions Chloride 250 mg/l 230 mgl� NA SMCL Fluoride 2 to 4 mgll NA NA PMCL Nitrate(as NO3) 45 mg/l NA NA PMCL Nitrite(as N) 1.0 mgll NA NA P1�C�- Phosphate NA NA NA Sulfate 250 to 500 mg/l NA NA SMCL to PMCL Notes: PMCL=Primary Maximum Contaminant Leve[ SMCL=Secondary Maximum Contaminant Leve! Owner shall mitigate nitrate and toxin levels in Bruce Creek to levels which do not exceed the levels for Aquafic Life Protection as shown above.The levels ior Drinking Watar Limifs are shown for reference,on1y. � t�.... �� l g Y �� August 28, 2008 � � , Honorable Mayor 8� Distinguished Members of the City Council � � � City of Palm Desert �. 73-510 Fred Waring Drive o� Palm Desert, CA 92260-2578 � �� Re: Stone Eagle's Disturbing Environmental Impact on Palm Desert � Dear Council Members: Stone Eagle's golf course irrigation has turned downstream portions of finro normally dry desert canyons, Bruce & Ramon, into wetlands complete with harmful algae, non-native vegetation and of most concern, ideal disease carrying mosquito breeding habitat. The stagnate and low flow algae covered surface water in both canyons combined, extends over a mile in length and provides ideal habitat for breeding mosquito's. Vector Control has identified several mosquito sites and confirmed their presence in both canyons as recently as August 25, 2008. The high nitrate, human waste contaminated water, Stone Eagle uses for irrigation, nearly insures that some mosquitoes will carry E. coli bacteria and the West Nile Virus, which as you know has recently been discovered in Palm Desert. These conditions can be life threatening, especially to very young and mature individuals, with just one bite from a contaminated mosquito. Mosquito's typically fly in a three mile radius from their birth site, with a potential range of fifteen miles, so no one in Palm Desert is safe. I would not be surprised to learn that some of you, living in the vicinity of Stone Eagle, have experienced increased mosquito encounters. I have been a resident of Palm Desert for the past finrenty years and during most of that time I have worked, saved and planned for retirement and building my dream home in Cahuilla Hills. Unfortunately, I have been unable to enjoy my property for the past three and half years. Every time I visit the property, with my fourteen year old companion, my dog Cahuilla, she becomes violently ill. The only other dog that I am aware of who has been in the canyon has experienced the same reaction, in fact spent a weekend at the veterinarian hospital. In addition, we have found finro dead coyotes, which I have been told is a very unusual occurrence, and based on their droppings, the remaining population appears to be suffering from a digestion related disorder. This is not a good indication of a healthy environment. As so eloquently stated by our City Manager in this years calendar: "The importance of the outdoors in our daily lives is part of the attraction of living in Palm Desert...The beautiful weather and breathtaking scenery beckons you to be outside...Palm Desert believes in the value of these open spaces and they are a source of civic pride for those who appreciate and use them." This problem is not just my problem but affects us all. You were aware of this condition when Stone Eagle gained approval of their residential tract map, the subject of your next meeting. In fact, at the City Council Meeting of September 22, 2005, see pages 17 through 19, you prudently addressed the problem and diligently gained the developers assurance that the problem would be solved. The developer did make an attempt to recapture the water flowing down each canyon by constructing catch basins. Unfortunately this attempt was unsuccessful and the developers proposed solution is to clean out the non-native vegetation on a quarterly basis. Excuse me, but offering to clean up the weeds once every four months, after creating a continuous stream of human waste contaminated water across my property, is preposterous. I am aware that you have a long favorable history with the developer. One of you shared the rather humorous story of his footprints in the wet concrete during an evening inspection of the work at Shadow Mountain Country Club in the eighties. I also have known the developer for quite some time and I am aware of his environmental sensitivity. Unfortunately, I believe his attention is directed to his new venture in La Quinta. I also believe he is accustomed to receiving your support. In fact, when staff attempted to insure compliance, upper management removed the incentive, but that was pail in comparison to other concessions granted in his favor. He was allowed to commence grading five months before he was granted a grading permit and received certificates of occupancy without gaining a "final" grading permit still unresolved. He was allowed to turn an approved open air pavilion into a fully conditioned and equipped "bar and grille", and in addition, construct two more open air pavilions, currently not shown on any plans. He was allowed to use an open septic system when a closed system was conditioned. He was allowed to use 100% contaminated water for irrigation when a substantial dilution of potable water was conditioned. He was allowed to use chain link fencing, prohibited in Palm Desert, when wrought iron was conditioned. He was allowed to develop hundreds of acres without a landscape plan; still none exist for the golf course. He was allowed to terrace or staircase the residential site where terracing is prohibited. He was granted fractional ownership in a development agreement, when the zoning prohibits it. He was allowed to construct improvements on ridge lines, when none is permitted and metal buildings in a zone where they are prohibited, just to name a few. You may also recall that at an earlier council meeting you forgave a $1,000,000 drainage fee because you were led to believe that they would be making $1,300,000 worth of improvements to Bruce and Ramon Creeks to control drainage. In fact, the funds were used to construct scenic water features for the aesthetic benefit of future residents of Stone Eagle. Furthermore in the actual drainage fee waiver request they declared, "The Stone Eagle development will not dump or direct any flow which may occur on any of the city's property, nor on any other property adjacent to the Stone Eagle site. Also we will not be increasing or contributing to the flow to the CVWD White Water Channel." If the effluent is not entering the Palm Valley Storm Channel leading to the "White Water Channel" as staff and the developer claim, then it is contaminating our drinking water! This is a serious matter that requires your attention. I have failed to negotiate an acceptable solution with the developer since my initial contact in May of 2004. Until now, I have not considered utilizing either the power of the -_� � media or the residents of Palm Desert, trusting in staff's ability to prevail. Unfortunately, staff has also failed in reaching an acceptable solution as we approach the fifth season. In the interest of public health, and for the safety and welfare of all Palm Desert residents, you must not approve the development as complete. You must investigate this matter further and mitigate the effects to the environment. Sincerely, �-_`,,,_ ---_., _ _-_____ `� Timothy R. Bartlett, Palm Desert Resident . �� ._ v l . � / Nanc Scott � � y � � 7]-487 Painted Canyon Road �. Palm Desert, Ca. 92260 � Agenda Item# QL� �US/�$� )(�I �f'�-) • Subject: Maintenance Agreement between City of Palm Desert and Stone Eagle �-\ Development, LLC � v� Request: I request that you vote no on this maintenance agreement until some changes � have been made to document that I will discuss with you now. � I and other concerned residents of the Cahuilla Hills started this up hill battle with Stone Eagle in the summer of 2005. We have had several meetings since that time and have waited patiently for the city to enforce the approved EIR dated received by the city 7/22/02 which states in section Existing Conditions page M-3 "Two main streams drain the project site, Bruce Creek and Ramon Creek, both ephemeral streams, running only occasionally after significant rainfall."There are several references to this fact throughout this EIR. Phil Drell expressed his concern as well 3/27/02 when he requested an EIR to be done. The bottom line is this. These two creeks were dry before Stone Eagle put in the golf Course. Now we have water running 365days a year. During the hot months we have biting Black Flies, mosquitoes, and other flying insects that this neighborhood never had before the golf course went in. As you know mosquitoes have a range of 5 to 1 S miles depending on the species. Barbara Stanger who 1 ives in my neighborhood contracted encephalitis last summer a strain passed from a sheep to mosquito to humans. Toni Carver gave me this info and has told me that Mrs. Stanger has permanent damage to her nervous system such as the shakes. This situation effects us all. Not only encephalitis but West Nile Virus already found in Pa1m Desert. Maintenance Agreement problems as follows: 1. page 3 Item 2.2.1: The pump located in Bruce Creek has never had electricity therefare has never worked. Howevex this retention basis has been allowed to fill and sit for weeks full of water breeding mosquitoes. 2. page 3 Item 2.2.2: Mosquitoes proliferate every 10 days according to Rod Chamberlain from Vector Control who has sent teams out at my request while this process has been taking place to treat for mosquitoes. They have come as a courtesy to me but ultimately they will take the stance that the property vwners have to clean up themselves. So inspecting monthly is inefficient especially during the hot summer months. The water stagnates in some areas. Also if they find mosquitoes what do they intend to do about it? I have talked to Rod Chamberlain and Stone Eagle has not discussed any plans with them as of this meeting. What is their plan? Item (x). Removal of non-native vegetation species should mean total removal not stacking up on the sides of the creeks causing insect and mosquito breeding sites as well as a fire hazard. 3.page 3�Item 2.2.3: (ii) " owner(which I assume is Stone Eagle ) shall have no obligation to perform any work on property other than the property."which according to your recitals only includes Stone Eagle property . I am not privy to your exhibits. But Bruce Creek runs about a mile_ I consider this a huge loop hole in this agreement and I can promise yau S�tQ.ne Fagle will hold you to it and not take care of their responsibility any fizrther than��ieir properry line. My experience has been nothing gets done unless they are forced as is evident from�ven having to have an agreement. 4. page 4 Item# 2.7: Deficiency Notice discussion ( a mutually agreed time) what does that mean? It has taken 8 months to get this agreement and four years to get it done. 5. page 5 Item Conflicts: complaining parly I guess is us. What's that ? I do not want to police these people anyinore. This should clearly be the responsibility of the city to enforce your agreement. By having this statement it is pretty much the same way it has been for the past four years. We complain and the city takes months to try to resolve. No deal. 6. page 5 Item 4 : third party legal action. To have included this tells me that you reaily do believe that there is a problem and foresee future problems. You are covering all the bases here for liability . I really can not blame you here because this situation won't be getting any better. In my opinion of course. In conclusion I ask you to vote no until everyone agrees on the final Maintenance Agreement. 1 am requesting these clarifications be changed and or made to agreement. It is your civic duty to protect and preserve our beautiful city. My invitation for a ravine tour is still on the table for all interested parties. 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