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HomeMy WebLinkAbout2006-03-28; City Council; 18501; Request Approval of Ponto Beach EIR Fundingoat Bcc CL Q. Q LU OccQ_ a. OM HU O 3oM C/3 O o•z.3 Oo CITY OF CARLSBAD AND HOUSING AND REDEVELOPMENT COMMISSION AGENDA BILL 11 AB# 18,501 MTG. 3/28/06 DEPT. PLN/H&R TITLE: REQUEST FOR APPROVAL OF AGREEMENTS AND APPROPRIATION OF FUNDING FOR THE PREPARATION OF A PROGRAM ENVIRONMENTAL IMPACT REPORT (PEIR 05-05) FOR THE PONTO BEACHFRONT VILLAGE VISION PLAN. DEPT.HD.#/^— ~D CITYATTY.' d&Z' ^«^— . PITY MftR ^$\^•Mr \ RECOMMENDED ACTION: That the City Council ADOPT Resolution No. 2006-075 .. APPROVING an agreement with RBF Consulting for the preparation of a Program Environmental Impact Report (PEIR 05-05) for the Ponto Beachfront Village Vision Plan (GPA 05-04/LCPA 05-01/DI 05-01) and related applications, and approving financial participation agreements with three prospective project developers. That the Housing and Redevelopment Commission ADOPT Resolution No. 410 , APPROVING financial participation agreements with three prospective project developers for the preparation of a Program Environmental Impact Report (PEIR 05-05) for the Ponto Beachfront Village Vision Plan (GPA 05-04/LCPA 05-01/DI 05-01) and related applications, and authorizing the Finance Director to appropriate funding from the Carlsbad Redevelopment Agency for said project. ITEM EXPLANATION: The Ponto Beachfront Village Vision Plan, along with a draft Mitigated Negative Declaration and a Mitigation Monitoring and Reporting Program, was presented to the City Council on June 28, 2005 for review and approval. At that public hearing, the City Council received substantial public comment on the proposed Plan with the primary issue of concern related to the environmental review. The public requested that the city complete an environmental impact report for the project before any action was taken on the Ponto Plan itself. In light of the additional information submitted during the public hearing, the scope of the evidence and the differing expert opinions, the City Council agreed to return the Plan to staff to coordinate completion of a City-initiated Program Environmental Impact Report (PEIR). The City Council also directed staff to work with the four larger, individual property owners within the Plan area to include their anticipated projects in the PEIR and to solicit their interest in cooperatively participating in the financing of the PEIR. Staff sent requests for qualifications and proposals for preparation of the Ponto PEIR to eight (8) consulting firms, three (3) of which submitted proposals to the City for consideration. The Planning Department and the Housing and Redevelopment Department collectively conducted a thorough review of each proposal, the responses to the scope of work, the experience of the firm and of the specific individuals involved, and performance and product delivery schedules. After reviewing the three (3) proposals, staff recommends hiring RBF Consulting to prepare the PEIR for the Ponto Plan. The RBF proposal was well prepared, exhibited a thorough understanding of the scope of work, and included a schedule and cost proposal that was reasonable and acceptable to staff. RBF Consulting, along with Urban Design Studio, was also the consulting firm hired to assist the City in preparing the draft Ponto Beachfront Village Vision Plan document. Staff also met with the four larger, individual property owners/prospective developers within the Plan area to solicit their interest in cooperatively participating in the financing of the PEIR. Three of the property owners/prospective developers (K. Hovnanian Companies of California, Inc., Mr. Dale Schreiber, and Coast Development - Mr. Tony Sharp) have agreed to financially participate in the preparation of the PEIR and have provided project descriptions and preliminary review plans for their PAGE 2 OF AGENDA BILL NO. anticipated projects. As a result, the City-initiated PEIR is intended to cover the Ponto Beachfront Village Vision Plan, as well as the three specific individual preliminary review project proposals. The fourth larger, individual property owner (WaveCrest Resorts - Mr. Bill Canepa) has already submitted a formal development application for their proposed development and will be preparing a separate, project-specific EIR for the purposes of CEQA compliance. This property owner will not be financially participating in the Ponto Vision Plan PEIR. As appropriate, the City will pursue fair share reimbursement agreements with the remaining minor property owners within the Vision Plan area at the time they submit formal applications for future development. Therefore, staff recommends that the City Council approve the attached consulting agreement with RBF Consulting. Staff also recommends that the City Council and the Housing and Redevelopment Commission approve the attached agreements with K. Hovnanian Companies of California, Inc., Mr. Dale Schreiber, and Coast Development as financial participants in the preparation of the PEIR, and that the Housing and Redevelopment Commission approve the appropriation of funding for said project. FISCAL IMPACT: The total cost of the consulting services to prepare the PEIR is $230,555. The total cost for consulting services will be shared per the attached agreements and as follows: Carlsbad Redevelopment Agency ($101,444), K. Hovnanian Companies of California, Inc. ($46,111), Mr. Dale Schreiber ($27,667), and Coast Development ($55,333). The prospective developer contributions are based on their proportionate share of the project cost according to the acreage of land owned or represented by them within the Ponto Vision Plan area. The developer contributions have been received and appropriately deposited by the Finance Department. The $101,444 Carlsbad Redevelopment Agency share of the total cost will cover the remainder of acreage within the Ponto Vision Plan area. There is currently an unencumbered cash balance of $369,000 available within the South Carlsbad Coastal Redevelopment Operating Fund to cover the Agency's share of the total cost. Staff is, therefore, recommending that the Housing and Redevelopment Commission authorize the Finance Director to appropriate the Carlsbad Redevelopment Agency contribution of $101,444 from the South Carlsbad Coastal Redevelopment Operating Fund to said project. This appropriation will leave an unencumbered cash balance of $267,500. EXHIBITS: 1. City Council Resolution No. 2006-075 approving an agreement between the City of Carlsbad and RBF Consulting for preparation of a Program Environmental Impact Report for the Ponto Vision Plan and agreements between the City of Carlsbad, Carlsbad Redevelopment Agency, K. Hovnanian Companies of California, Inc., Mr. Dale Schreiber, and Coast Development as financial participants in the preparation of the PEIR. 2. Housing and Redevelopment Commission Resolution No. 410 , approving Agree- ments between the City of Carlsbad, Carlsbad Redevelopment Agency and K. Hovnanian Companies of California, Inc., Mr. Dale Schreiber, and Coast Development, as financial participants in the preparation of the PEIR. DEPARTMENT CONTACTS: Debbie Fountain. (760) 434-2935, dfoun@ci.carlsbad.ca.us Gary T. Barberio, (760) 602-4606, gbarb@ci.carlsbad.ca.us 1 RESOLUTION NO. 2006-075 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING A CONSULTING 3 AGREEMENT WITH RBF CONSULTING FOR THE PREPARATION OF A PROGRAM ENVIRONMENTAL IMPACT 4 REPORT FOR THE PONTO BEACHFRONT VILLAGE VISION PLAN (GPA 05-04/LCPA 05-01/DI 05-01) AND RELATED 5 APPLICATIONS, AND AGREEMENTS WITH K. HOVNANIAN COMPANIES OF CALIFORNIA, INC., MR. DALE SCHREIBER, 6 AND COAST DEVELOPMENT AS FINANCIAL PARTICIPANTS IN THE PREPARATION OF THE PROGRAM ENVIRONMENTAL 7 IMPACT REPORT - PEIR 05-05. 8n The City Council of the City of Carlsbad, California, does hereby resolve as 9 follows: 10 1. That a consulting agreement with RBF Consulting for consulting services to prepare a Program Environmental Impact Report (PEIR) for the Ponto Beachfront Village Vision Plan - GPA 05-04/LCPA 05-01/DI 05-01 (Exhibit 1), and agreements with K. Hovnanian Companies of California, Inc., Mr. Dale Schreiber, and Coast Development as financial participants in the preparation of the PEIR (Exhibit 2) are hereby approved and the City Manager is authorized to execute said agreements. 14 2. Following the City Manager's execution of said agreements, the City 15 Clerk is directed to forward copies of this resolution and said agreements to RBF Consulting, Attention: Alex Jewell, 9755 Clairemont Mesa Boulevard, Suite 100, San Diego, CA 92124- 16 1324; the Planning Department; and the Housing and Redevelopment Department. 17 PASSED AND ADOPTED at a regular meeting of the City Council of the City of 18 Carlsbad on the 28th day of March 2006, by the following vote, to wit: in AYES: Council Members Lewis, Kulchin, Packard, Sigafoose 20 NOES: None 21 /\/7 ABS^NT/l Cou^ci/ Member Hall 22 23 24 25 26 f } ft^-^f \s W+-*W. ^^r £Zx- l^^r~—' fo 27 28 3 EXHIBIT 1 AGREEMENT WITH RBF CONSULTING, INC. FOR THE PREPARATION OF A PROGRAM ENVIRONMENTAL IMPACT REPORT FOR PONTO BEACHFRONT VILLAGE VISION PLAN - EIR 05-05 THIS AGREEMENT, made this 11 day of April 20 Qb. between the CITY OF CARLSBAD, a municipal corporation of the State of California, hereinafter referred to as "CITY", and RBF Consulting/InlS, a California Corporation hereinafter lL>^2referred to as "CONTRACTOR". ^H- RECITALS WHEREAS, the CITY has entered into an agreement with RBF Consulting, Inc., a California Corporation hereinafter called contractor, wherein the CITY agrees to prepare a Program Environmental Impact Report (PEIR) for the proposed project identified as Ponto Beachfront Village Vision Plan PEIR (EIR 05-05) which is located in the southwest quadrant of Carlsbad, in Local Facilities Management Zones 9 and 22 and more precisely shown on the plat marked Attachment 1, attached hereto and made a part hereof; and WHEREAS, the CONTRACTOR has the qualifications to prepare the required Program Environmental Impact Report; and WHEREAS, it is understood that the CONTRACTOR shall be an independent contractor of the CITY; NOW, THEREFORE, in consideration of their mutual covenants and conditions, the parties hereto agree as follows: 1. CONTRACTOR OBLIGATIONS CONTRACTOR shall prepare a Program Environmental Impact Report on the subject project in accord with the California Environmental Quality Act as implemented 1 Rev. 08-08-97 by the State Guidelines and by CITY in Title 19 of the Carlsbad Municipal Code and its implementing resolutions. In carrying out this obligation the CONTRACTOR'S duties shall include the following: (a) The CONTRACTOR shall, consistent with the Work Program contained in Attachment 2, (1) make all necessary and required field explorations, reviews and tests; (2) make all necessary and required laboratory tests and analyses; (3) appear and be prepared to answer questions and prepare testimony on the final Program Environmental Impact Report at all public hearings before the Planning Commission and the City Council prior to the certification of the report; (4) make all reports necessary to comply with the requirements of this section. Before preparing the draft report, the CONTRACTOR shall submit five copies of a preliminary report (screen check PEIR) to the Planning Director for staff review. The CONTRACTOR shall revise the preliminary report as requested by staff in order to make it suitable for draft PEIR review. (b) CONTRACTOR shall prepare a draft report in compliance with the Work Program contained in Attachment 2 on file at the Planning Department attached hereto and made a part hereof and with applicable state law and CITY ordinances. The CONTRACTOR shall submit to CITY fifty copies plus a reproducible master of the draft Program Environmental Impact Report to the CITY consistent with the time periods outlined in the work program contained in Attachment 2. (c) CONTRACTOR shall attempt to determine as soon as possible in the study of the area involved, those factors which could severely inhibit or prohibit the proposed project. If it appears that such factors are present, CONTRACTOR shall so inform the Planning Director who in turn will discuss with the applicant the feasibility of 2 Rev. 08-08-97 continuing with the report. The objective of this subsection of the agreement is to minimize the cost if these adverse factors exist. (d) CONTRACTOR shall prepare and file with the CITY written responses to all comments received subsequent to public notice that the draft Program Environmental Impact Report has been filed. CONTRACTOR shall also prepare any responses necessary to matters raised at the public hearings. The written responses shall be prepared in a form that will permit the responses to be incorporated into the final Program Environmental Impact Report. 2. CITY OBLIGATIONS (a) The CITY will make payment to the CONTRACTOR as provided for in this agreement. (b) The CITY will make available to the CONTRACTOR any documents, studies, or other information in its possession related to the proposed project. (c) The CITY will review the Preliminary Report presented by the CONTRACTOR and make written comments to the CONTRACTOR consistent with the time periods outlined in the work program contained in Attachment 2. (d) The CITY shall provide the CONTRACTOR with copies of all written comments received on the draft Program Environmental Impact Report subsequent to public notice that the draft Program Environmental Impact Report has been filed and is available for public review. 3. TIME OF COMPLETION Time is of the essence in carrying out the terms of this agreement. It is understood that inclement weather conditions may delay the completion of field work. The CONTRACTOR will be allowed as many additional days as are necessary to 3 Rev. 08-08-97 compensate for days lost due to inclement weather. The CONTRACTOR shall submit to the CITY five copies of the Preliminary Program Environmental Impact Report and fifty-one copies of the draft Program Environmental Impact Report consistent with the time periods outlined in the work program contained in Attachment 2. 4. PAYMENT The CONTRACTOR will be paid a maximum of Two hundred thirty thousand five hundred fifty-five dollars ($230,555) for all work necessary to carry out the requirements of this agreement. Actual payment shall be based on the cost of the report based on the costs as set forth in Attachment 3 on file at the Planning Department. The CONTRACTOR shall be paid within 30 days, in response to invoice, up to 50 percent of the compensable services for the completion of the screen check draft Program Environmental Impact Report in accordance with Paragraph 1 above. The CONTRACTOR will be paid up to an additional 40 percent upon acceptance by the CITY of the response to comments from the CONTRACTOR, the final 10 percent will be paid, not to exceed the maximum amount provided in its agreement, within 30 days after receipt of invoice, to be submitted after the certification of the Program Environmental Impact Report by the City Council. 5. LIMITS OF THE OBLIGATION The limits of the obligation of the CITY under this agreement is the sum of Two hundred thirty thousand five hundred fifty-five dollars ($230,555) which amount is estimated to be sufficient to compensate the CONTRACTOR for all services performed hereunder during the terms of this agreement. In the event at any time it appears to the CONTRACTOR that said sum may not be sufficient, he shall immediately so notify the Planning Director. He will not perform any work or incur any obligation beyond said 4 Rev. 08-08-97 sum of Two hundred thirty thousand five hundred fifty-five dollars ($230,555) without appropriate amendment to this agreement. 6. CHANGES IN WORK If, in the course of this contract, changes seem merited by the CONTRACTOR or the CITY and informal consultations indicate that a change in the conditions of the contract is warranted, the CONTRACTOR or the CITY may request a change in the contract. Such changes shall be processed by the CITY in the following manner. A letter outlining the required changes shall be forwarded to the CITY or CONTRACTOR to inform them of the proposed changes along with a statement of estimated changes in charges or time schedule. After reaching mutual agreement on the proposal, a supplemental agreement shall be prepared by the CITY and approved by the CITY according to the procedures described in Carlsbad Municipal Code Section 3.28.080. Such supplemental agreement shall not render ineffective or invalid unaffected portions of the agreement. Changes requiring immediate action by the CONTRACTOR or the CITY shall be ordered by the Planning Director who will inform a principal of the CONTRACTOR'S firm of the necessity of such action and follow up with a supplemental agreement covering such work. The lump sum amounts detailed in this agreement shall be adjusted for changes, either additive or deductive, in the scope of work, provided such changes are processed according to the procedures in this paragraph. 7. COVENANTS AGAINST CONTINGENT FEES The CONTRACTOR warrants that their firm has not employed or retained any company or person, other than a bona fide employee working for the CONTRACTOR, to solicit or secure this agreement, and that CONTRACTOR has not paid or agreed to 5 Rev. 08-08-97 pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this agreement. For breach or violation of this warranty, the CITY shall have the right to annul this agreement without liability, or, in its discretion, to deduct from the agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fees, gift, or contingent fee. 8. NONDISCRIMINATION CLAUSE The CONTRACTOR shall comply with the state and federal laws regarding nondiscrimination. 9. TERMINATION OF CONTRACT The CITY may terminate this agreement at any time by giving written notice to the CONTRACTOR of such termination and specifying the effective date thereof, at least fifteen days prior to the effective date of the termination. In the event of termination, all finished or unfinished documents and other materials prepared pursuant to this agreement shall become its property. Upon termination for reasons other than breach of this agreement CITY shall pay CONTRACTOR the reasonable value of the services completed to the date of notice of determination. 10. DISPUTES If a dispute should arise regarding the performance of work under this agreement, the following procedure shall be used to resolve any question of fact or interpretation not otherwise settled by agreement between parties. Such questions, if they become identified as a part of a dispute among persons operating under the provisions of this contract, shall be reduced to writing by the principal of the 6 Rev. 08-08-97 CONTRACTOR or the CITY Planning Director. A copy of such documented dispute shall be forwarded to both parties involved along with recommended methods of resolution which would be of benefit to both parties. The CITY Planning Director or principal receiving the letter shall reply to the letter along with a recommended method of resolution within ten (10) days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the dispute shall be forwarded to the City Council for their resolution through the office of the City Manager. The City Council may then opt to consider the directed solution to the problem. In such cases, the action of the City Council shall be binding upon the parties involved, although nothing in this procedure shall prohibit the parties seeking remedies available to them at law. 11. CLAIMS AND LAWSUITS The CONTRACTOR agrees that any contract claim submitted to the City must be asserted as part of the contract process as set forth in this agreement and not in anticipation of litigation or in conjunction with litigation. The CONTRACTOR acknowledges that if a false claim is submitted to the City, it may be considered fraud and the CONTRACTOR may be subject to criminal prosecution. The CONTRACTOR acknowledges that California Government Code Sections 12650 et seq.. the False Claims Act, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If the City of Carlsbad seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. The CONTRACTOR acknowledges that the filing of a false claim may subject the CONTRACTOR to an administrative debarment proceeding wherein the CONTRACTOR may be prevented to Rev. 08-08-97 it act as a contractor on any public work or improvement for a period of up to five (5) years. The CONTRACTOR acknowledges debarment by another jurisdiction is grounds for the City of Carlsbad to disqualify the CONTRACTOR from the selection process. The provisions of Carlsbad Municipal Code Sections 3.32.025, 3.32.026, 3.32.027 and 3.32.08 pertaining to false claims are incorporated herein by reference. 12. STATUS OF THE CONTRACTOR The CONTRACTOR shall perform the services provided for herein in CONTRACTOR'S own way as an independent contractor and in pursuit of CONTRACTOR'S independent calling, and not as an employee of the CITY. CONTRACTOR shall be under control of the CITY only as to the result to be accomplished, but shall consult with the CITY as provided for in the request for proposal. The persons used by the CONTRACTOR to provide services under this agreement shall not be considered employees of the CITY for any purposes whatsoever. The CONTRACTOR is an independent contractor of the CITY. The payment made to the CONTRACTOR pursuant to the contract shall be the full and complete compensation to which the CONTRACTOR is entitled. The CITY shall not make any federal or state tax withholdings on behalf of the CONTRACTOR or his/her employees or subcontractors. The CITY shall not be required to pay any workers' compensation insurance or unemployment contributions on behalf of the CONTRACTOR or his/her employees or subcontractors, on behalf of the CONTRACTOR. The CONTRACTOR agrees to indemnify the CITY for any tax, retirement contribution, social security, 8 Rev. 08-08-97 overtime payment, or workers' compensation payment which the CITY may be required to make on behalf of the CONTRACTOR or any employee of the CONTRACTOR for work done under this agreement. The CONTRACTOR shall be aware of the requirements of the Immigration Reform and Control Act of 1986 and shall comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and CONTRACTORS that are included in this agreement. 13. OWNERSHIP OF DOCUMENTS All documents and materials prepared pursuant to this agreement are the property of the CITY. The CITY shall have the unrestricted authority to publish, disclose, distribute and otherwise use, in whole or in part, any reports, data, or other materials prepared under this agreement. 14. REPRODUCTION RIGHTS The CONTRACTOR agrees that all copyrights which arise from creation of the work pursuant to this contract shall be vested in CITY and hereby agrees to relinquish all claims to such copyrights in favor of CITY. 15. RELEASE OF INFORMATION BY CONTRACTOR Any reports, information or other data, prepared or assembled by the CONTRACTOR under this agreement shall not be made available to any individual or organization by the CONTRACTOR without prior written approval of the CITY. 16. HOLD HARMLESS AGREEMENT CONTRACTOR agrees to indemnify and hold harmless the City of Carlsbad and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorney fees arising out of the performance of the work 9 Rev. 08-08-97 /a described herein caused in whole or in part by any willful misconduct or negligent act or omission of the CONTRACTOR, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, except where caused by the active negligence, sole negligence, or willful misconduct of the City of Carlsbad. CONTRACTOR shall at its own expense, upon written request by the City, defend any such suit or action brought against the City, its officers, officials, employees and volunteers. CONTRACTOR'S indemnification of City shall not be limited by any prior or subsequent declaration by the CONTRACTOR. 17. ASSIGNMENT OF CONTRACT CONTRACTOR shall not assign this contract or any part hereof or any monies due or to become due thereunder without prior written consent of the CITY. 18. SUBCONTRACTING If the CONTRACTOR shall subcontract any of the work to be performed under this contract by CONTRACTOR, the CONTRACTOR shall be fully responsible to the CITY for the acts and omissions of its subcontractor and of the persons either directly or indirectly employed by its subcontractor, as it is for the acts and omissions of persons directly employed by it. Nothing contained in this contract shall create any employee or contractual relationship between any subcontractor of CONTRACTOR and the CITY. The CONTRACTOR shall bind every subcontractor and every subcontractor of the subcontractor by their terms of this contract applicable to its work unless specifically noted to the contrary in the subcontract in question approved in writing by the CITY. 19. PROHIBITED INTEREST 10 Rev. 08-08-97 13 No official of the CITY who is authorized in such capacity on behalf of the CITY to negotiate, make, accept or approve, or to take part in negotiating, making, accepting or approving any architectural, engineering, inspection, construction, or material supply contract or subcontract in connection with the construction of the project, shall become directly or indirectly interested personally in this contract or in any part thereof. No officer, employee, architect, attorney, engineer or inspector of or for the CITY who is authorized in such capacity and on behalf of the CITY to exercise any executive, supervisory or other similar functions in connection with the performance of this contract shall become directly or indirectly interested personally in this contract or any part hereof. 20. VERBAL AGREEMENT OR CONVERSATION No verbal agreement or conversation with any officer, agent or employee or the CITY, either before, during or after the execution of this contract, shall affect or modify any of the terms or obligations herein contained, nor shall such verbal agreement or conversation entitle the CONTRACTOR to any additional payment whatsoever under the terms of this contract. 21. SUCCESSOR OR ASSIGNS Subject to the provision of Paragraph 10, "Hold Harmless Agreement", all terms, conditions, and provisions hereof shall inure to and shall bind each of the parties hereto, and each of their respective heirs, executors, administrators, successors, and assigns. 22. EFFECTIVE DATE This agreement shall be effective on and from the day and year first written above. 11 Rev. 08-08-97 23. CONFLICT OF INTEREST The CONTRACTOR shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The CONTRACTOR shall report investments or interests in all four categories. 24. INSURANCE The CONTRACTOR shall obtain and maintain for the duration of the contract and any and all amendments insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the work hereunder by the CONTRACTOR, its agents, representatives, employees or subcontractors. Said insurance shall be obtained from an insurance carrier admitted «f»«l- authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:V" and shall meet the City's policy for insurance as stated in Resolution No. 91-403. A. Coverages and Limits. CONTRACTOR shall maintain the types of coverages and minimum limits indicated herein, unless a lower amount is approved by the City Attorney or City Manager: 1. Comprehensive General Liability Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits shall apply separately to the work under this contract or the general aggregate shall be twice the required per occurrence limit. 2. Automobile Liability (if the use of an automobile is involved for CONTRACTOR'S work for the City). $1,000,000 combined single-limit per accident for 12 Rev. 08-08-97 bodily injury and property damage. 3. Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the Labor Code of the State of California and Employer's Liability limits of $1,000,000 per accident for bodily injury. B. Additional Provisions. CONTRACTOR shall ensure that the policies of insurance required under this agreement contain, or are endorsed to contain, the following provisions. 1. The City shall be named as an additional insured on all policies excluding Workers' Compensation. 2. The CONTRACTOR shall furnish certificates of insurance to the City before commencement of work. 3. The CONTRACTOR shall obtain occurrence coverage. 4. This insurance shall be in force during the life of the agreement and any extension thereof and shall not be canceled without 30 days prior written notice to the City sent by certified mail. 5. If the CONTRACTOR fails to maintain any of the insurance coverages required herein, then the City will have the option to declare the CONTRACTOR in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order that the required coverages may be maintained. The CONTRACTOR is responsible for any payments made by the City to obtain or maintain such insurance and the City may collect the same from the CONTRACTOR or deduct the amount paid from any sums due the CONTRACTOR under this agreement. 13 Rev. 08-08-97 25. RESPONSIBLE PARTIES The name of the persons who are authorized to give written notices or to receive written notice on behalf of the City and on behalf of the CONTRACTOR in connection with the foregoing are as follows: For City: Title: Principal Planner Name: Gary T. Barberio Address: 1635 Faraday Avenue Carlsbad CA 92008 For Contractor:Title: Name: Project Manager RBF Consulting. Inc. Attn: Alex Jewell Address: 9755 Clairmont Mesa Boulevard. Suite 100 San Diego CA 92124-1324 N/A N/A Architect/License Number: Architect/License Number: 26. BUSINESS LICENSE CONTRACTOR shall obtain and maintain a City of Carlsbad Business License for the duration of the contract. 27. ENTIRE AGREEMENT This agreement, together with any other written document referred to or contemplated herein, embody the entire agreement and understanding between the parties relating to the subject matter hereof. Neither this agreement nor any provision hereof may be amended, modified, waived or discharged except by an instrument in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. 14 Rev. 08-08-97 17 Executed by CONTRACTOR this /5t>day of . 20 Ob CONTRACTOR: RBF Consulting^Jrox — CITY OF CARLSBAD, a municipal oration of the^State of Galifjar/nja (Name of Contractor) By: (sign here) Richard A. Rubin, Senior Vice President (print name/title) City Manager or Mayor ATTEST: ^ OV''fcoR^-\-X, '* K*>< (sign her^) Douglas J. Frost, Exec. VP/CFO (print name/title) (Proper notarial acknowledgment of execution by CONTRACTOR must be attached). (Chairman, president or vice-president and secretary, assistant secretary, CFO or assistant treasurer must sign for corporations. Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.) (If signed by an individual partner, the partnership must attach a statement of partnership authorizing the partner to execute this instrument). APPROVED AS TO FORM: RONALD R. BALL, City Attorney Byj AssisfsTnt City Attorney 15 Rev. 08-08-97 STATE OF CALIFORNIA COUNTY OF SAN DIEGO On re.bruarcy I. 6uUy> before me, _ Notary Public, personally appeared ^icUaY^ A. \2n\om , [^^personally known to me - or [ ] proved to me on the basis of satisfactory evidence to be the person^s)- whose namefs) is/afe subscribed to the within instrument and acknowledged to me that hefcho/thoy executed the same in his/her/their authorized capacity(iee>, and that by his/hcr/thcir signature(s) on the instrument the person(s); or the entity upon behalf of which the person(s)-acted, executed the instrument. 1WITNESS my hand and official seal. f SAN DIEGO COUNTY eCommfesfon Expires Jut/17.20081<VVWtftf>MAM^5vWtfVVVlArtftWVWWv{ (Signature of Notary) 19 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California Countvof Oran9e V ss. t On February 2 200R • before me, lav/no P .QHir>mmor Nntarw Puhlir_ _ . _ ^.^ , _ _ personally appeared r" • *$*& U • . y?r? Place Notary Seal / -Name aTfd'TitlS oTdfficer1 fe.g'.TlarVDoe; Nolar? Publ^ Douglas J. Frost Name{s) of Signer(s) ^personally known to me D proved to me on the basis of satisfactory evidence fejfl^^ll*Hf to be the person^ whose nameij?) is/ctf^" ^"T^ooi I subscribed to the within instrument and le-COBMnto I acknowledged to me that he/she/t>£y executed w County J the same in his/ft^F/tbefr authorized pjjjtJanWJJWw capacity(ibs)., and that by his*€r&h£Tr "^"^^^^^ signature^ on the instrument the persor]3(<), or the entity upon behalf of which the personjjsj acted, executed the instrument. WITNESS my hand and/official seal. /^\ J^/4 \bove ^sy^ ' — fy Signature or Notary Public^/ •(/ Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document ....Title or Type of Document: ^ oTCartsbad Agreement. Document Date: Signer(s) Other Than Namec Capacity(ies) Claimed b Signers Name: u Individual ^xf Corporate Officer — Title D Partner — D Limited D ( D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing: Fxfinuted by Contractor on S/rMftfi of Paaes: i Above: Douglas J Frost nM'b*j'iii»Mjinn ... Executive VP & CFO Top of thumb here ^S). Seneral RBF Consulting © 1997 National Notary Association • 9350 DeSotoAve., P.O. Box 2402 • Chatsworth, CA 91313-2402 Prod. No. 5907 Reorder: Call Toll-Free 1-800-876-6827 (Ponto (Beachfront Vittage Vision <PCan (program ATTACHMENT 2 I. WORK PROGRAM The following Work Program has been prepared pursuant to the information provided by the City in their Request For Proposal letter dated October 17, 2005, our understanding of the project, and applicable federal, state, and local regulations. TASK 1.0 PROJECT KICK-OFF AND NOTICE OF PREPARATION OF AN EIR SUBTASK 1.1 RESEARCH AND INVESTIGATION RBF will obtain project data and information from the City, local, state, and federal agencies, and all other agencies that may be affected by the project. RBF will review this information, along with environmental data and information from the City and other nearby jurisdictions, as the foundation of the EIR. Information will be incorporated into the EIR and other analysis, as deemed appropriate. SUBTASK 1.2 NOTICE OF PREPARATION RBF will assist City staff in preparing the necessary documents for the Notice of Preparation, including analysis and exhibits requested by the City. RBF will use the previously prepared initial study and environmental checklist in preparation of the document. TASK 2.0 PREPARATION OF SCREENCHECK EIR SUBTASK 2.1 INTRODUCTION AND EXECUTIVE SUMMARY The proposed project is subject to CEQA provisions and City CEQA implementation procedures that will be cited in the Introduction. The introduction will also identify the purpose of the study and statutory authority, document scoping procedures, and provide a summary of the EIR format, a listing of responsible and trustee agencies, and a listing of documentation incorporated by reference. SUBTASK 2.2 EXECUTIVE SUMMARY RBF will provide an Executive Summary for the EIR including a project summary, an overview of project impacts, mitigation and levels of significance after mitigation, summary of project alternatives, areas of controversy, and issues to be resolved. The Executive Summary will also provide a table identifying the significant impacts and proposed mitigation measures. This section will be assembled so it may be used as a stand-alone document. SUBTASK 2.3 PROJECT DESCRIPTION AND ENVIRONMENTAL SETTING The Project Description section of the EIR will detail the project location, background and history of the project, discretionary actions, characteristics, goals and objectives, phasing, agreements, and permits and approvals that are required for the Pagel CDNBULTINQ (Panto (Beachfront Vittage Vision <P(an (program project based on available information. This section will include a summary of the local environmental setting for the project. SUBTASK 2.4 ENVIRONMENTAL SETTING The Environmental Setting section will include a summary of the regional and local environmental setting for the project. This section will establish baseline environmental conditions for resources affected but the project. This section will include a discussion on resources that are unique to the area on a regional and local level. As required, this section will also provide a discussion of the project's consistency with regional and local plans that affect the project. SUBTASK 2.5 CONSIDERATION AND DISCUSSION OF ENVIRONMENTAL IMPACTS RBF will evaluate the necessary information with respect to the existing conditions, the potential adverse effects of project implementation (both individual and cumulative), and measures to mitigate such effects. Environmental issues raised during the scoping process (Notice of Preparation responses and any other relevant and valid informative sources) will also be evaluated. The analyses will be based upon all available data, results from additional research, and an assessment of existing technical data. RBF in-house Environmental Analysts, CEQA experts and Planners will perform these analyses. The Environmental Analysis section of the EIR will discuss the existing conditions for each environmental issue area, and identify short-term and long-term environmental impacts associated with the project and their levels of significance. Mitigation measures will be recommended to reduce the significance of impacts and identify areas of unavoidable significant adverse impacts even after mitigation. This section will include analysis for the following environmental issue areas: A. Aesthetics and Visual Character This section of the EIR will be prepared in accordance with the scope of work included in the Ponto Beachfront Village Vision Plan Request for Proposal. Visual Simulations. RBF has extensive experience in preparing highly accurate and defendable computer-based visual simulations. Visual simulations provide an accurate depiction of proposed structures from varying viewpoints. The advantage of visual simulations is that they provide the City staff with an opportunity to preview the proposed development and identify potential opportunities and constraints with the chosen improvements. Additionally, they provide the public and decision makers with a graphic illustration of the proposed changes on which to make more meaningful comments. Based on experience with prior coastal projects requiring approval by the Coastal Commission, RBF recommends the preparation of visual simulations. Page2 (Ponto (Beachfront Vitta$e Vision <P(an (Program Approach. Computer modeling of the proposed project will be accomplished utilizing state-of-the-art software. Each piece of software is selected based on it appropriateness and accuracy for each part of the modeling effort. This includes: a Terramodel for all terrain and hardscape Q FormZ and ArchiCad for all architectural elements. Site Modeling Topography and Grading. The proposed grading and terrain development for the proposed improvements will be computer modeled at a level of detail sufficient to depict the project realistically from all chosen viewpoints. The model will include proposed buildings, landscaping, open space areas, sidewalks, enhanced paving, and landscaping. Structure Modeling. For the proposed buildings, e.g., hotel and residential buildings, site modeling will be based on designs provided by the City. If no designs are available, general building designs that generally match the proposed development will be used. All structures will be modeled at level of detail sufficient to depict the project from the various viewpoints. The model will include doors, windows and architectural detail necessary to provide an accurate representation. Photography Professional photographs will be taken with a Fuji GX 617 Panoramic camera providing a 2.25 x 6 inch film transparency. Back-up shots will be taken using a Nikon D1X digital camera. All panoramas that require a wider field of view than 80 degrees will be shot with the Nikon D1X and seamed together using specialized software. The exact location and elevation of these photographs will be determined using GPS technology to ensure a precise perspective of each viewpoint. All photographs will be taken as specified by the client. Setup and Rendering The computer model will be aligned to each of the photographs utilizing state of the art rendering and Electric Image Universe animation software. Proper shading and texturing will be applied to the geometry and the various views corresponding to the photographs will be rendered photo-realistically. Photo Composition The rendered images will be superimposed onto the original photographs using Photoshop compositing software. Enhancements will include landscaping and foreground masking. All photo simulations will be presented in color format. Each page will show existing conditions, and a simulation of the proposed project with a thin outline showing the massing of the existing buildings (where relevant) for reference. PageS CONSULT* NO ^""wpVrr^l (Ponto (Beachfront Village Vision <PCan (Program This task includes five view locations. Additional views may be identified based on further scope refinement with the City and/or discussions with Coastal Commission staff. The costs for the above scope is described below based on the following level of detail: The buildings will include doors, windows and moderate architectural detail. The terrain will be modeled with curbs and gutters, sidewalks and accurate grading. Moderate amounts of landscaping are included to illustrate its impact or mitigation on the view. B. Agricultural Resources This section of the EIR will be prepared in accordance with the scope of work included in the Request for Proposal. C. Air Quality This section of the EIR will be prepared in accordance with the scope of work included in the Request for Proposal. RBF will prepare a technical air quality analysis that will be integrated into the EIR. The air quality analysis will contain the following elements: Existing Conditions. The proposed project site is within the San Diego Air Basin (SDAB), under the jurisdiction of the San Diego Air Pollution Control District (SDAPCD). Baseline and project setting meteorological and air quality data will be developed through climatological and air quality profile data gathered by the SDAPCD and the California Air Resources Board (CARS). Other sources such as regulatory documents, professional publications, and RBF experience in the project area will supplement background information. A summary of current air quality management efforts that may be related to the proposed project will be provided. A brief overview of the nature and location of existing sensitive receptors will be provided to set the context for how such uses may be affected. Construction-related Air Quality. RBF will calculate the construction emissions commensurate with available project-specific information. Emission factors will be based on the URBEMIS2002 and EMFAC2002 air quality models. Standard measures for construction activities recommended by the SDAPCD will be identified and incorporated as part of the project's standard conditions. Operational Air Quality. Emissions from long-term mobile and stationary sources associated with this project will be calculated with the URBEMIS 2002 air quality model. Due to the amendment to the City's Land Use Element and Local Coastal Plan, RBF will provide a local conformity analysis with the SDAPCD's Regional Air Quality Strategy (RAQS). Page4 CONSULTING (Ponto ^Beachfront Vittage Vision (Plan (Program This scope of work assumes City of Carlsbad staff will provide a list of pending/approved projects within a one-mile radius for a cumulative impacts analysis. Carbon Monoxide Hot-Spots. Should the project traffic warrant Carbon Monoxide Hotspot modeling, RBF will model up to five intersections utilizing the CALINE4 model. The information prepared will be consistent with the Transportation Project- Level Carbon Monoxide Protocol, revised December 1997, prepared by the Institute of Transportation Studies, University of California, Davis. Mitigation Measures. RBF will work with the City and, if necessary, the SDAPCD to identify feasible mitigation measures. Mitigation measures will be developed as indicated in the impact analysis. Excluded Tasks • Air quality permits • Health Risk Assessment (HRA) • Engineering design of mitigation measures (i.e. baffles, soundwalls, etc.) • Preparation of any design memos or documents D. Biological Resources This section of the EIR will be prepared in accordance with the scope of work included in the Request for Proposal. RBF has teamed with Helix Environmental Planning, Inc. (Helix) to evaluate potential impacts to biological resources. The Scope of Services performed by Helix will include the following tasks: Literature Review. Helix will review all available information on this project. This shall include the Existing Biological Conditions Report and Wetlands Delineation Report. Helix will identify any additional information needed to support our findings. Helix shall evaluate the methods and conclusions contained in the reports for legal and scientific adequacy and accuracy to ensure that the analyses are of a scale and level of effort appropriate to the requirements of the project. Helix will identify any flaws in the methodologies and/or conclusions. Field Verification Check. Helix will visit the project site to verify that the vegetation mapping previously performed for the project remains accurate. Biological Resources Section of EIR. Helix will prepare the biological evaluation for the EIR. This section will included the findings from the RECON Existing Biological Conditions Report and Wetlands Delineation Report. In addition, an impacts analysis will be conducted for all direct and indirect significant and less than significant project effects. The direct impacts analysis will include effects to sensitive vegetation communities, sensitive plant and animal species, and jurisdictional areas resulting from implementation of the proposed project (including grading, brush management, trails, or other project-related impact). The indirect impacts analysis Pages CONSULTING (ponto ^Beachfront Vitta$e Vision <Ptan (Program will include effects to sensitive vegetation communities and sensitive plant and animal species resulting from light and glare, decreased water quality (i.e., through sedimentation, contaminants, or fuel release), fugitive dust, colonization of non- native plant species, edge effects, animal breeding behavioral changes, roadkill, and construction noise. In addition, Helix will conduct a review of the consistency of the proposed project with the City Habitat Management Plan to be included in the biological resources section for the EIR. Helix will recommend appropriate mitigation to be included in the biological resources section for the EIR. Helix will identify any impacts remaining after implementation of the recommended mitigation measures. Management/Meetings. Helix has assumed 60 hours for management/meetings with the project team and City. If Client requests additional services that cause Helix to exceed the time allocated for this task, Helix will need to amend this task and its associated costs. E. Cultural / Historical Resources This section of the EIR will be prepared in accordance with the scope of work included in the Ponto Beachfront Village Vision Plan Request for Proposal. To complete the analysis of the cultural/historical resources in the project area, RBF has teamed with the professional historians at Brian F. Smith and Associates (BFSA). BFSA will conduct a cultural resource inventory on the specified project area. The scope of work will include a records search of the project and surrounding area to list all sites within the project area that have been previously recorded. An historical survey will be conducted to identify all historic or potentially historic elements of the City's project. If historic properties are identified in the project area, an historical assessment will be completed to evaluate historic structures. A technical report will also be prepared in accordance with CEQA regulations to present the findings of the records searches and structure evaluations. BFSA shall furnish all necessary personnel, facilities, equipment, materials, and transportation to perform the work described herein. The scope of work for these services is provided below: Institutional Records Searches Prior to the initiation of the project, an updated archaeological site files record search will be conducted at the appropriate archaeological records information center. A list of additional studies conducted and all new registered archaeological sites located within one mile of the subject property will be documented from the record search inquiry. Copies of all reports pertaining to the immediate project area will be gathered. PageG CONSULTING (Ponto (Beachfront Vitta$e Vision <P(an (Program Native American Consultation Brian F. Smith and Associates is aware of the importance that Native American consultation can play in any project where cultural resources could be identified as related to a specific group. BFSA is committed to the successful identification of Native American cultural values, issues, and concerns through consultation with tribal governments and practitioners of traditional culture and religion. Furthermore, the consideration of Native American concerns early in any project can minimize the potential for later project complications. It is the goal of the consultation process to identify both the resource management concerns and the strategies for addressing them, through an interactive dialogue with appropriate Native American communities. Native American concerns may require the consideration of different approaches to and treatment of cultural resources than the usual excavation and analysis, particularly in those situations when mitigation is not a realistic option. Such a situation may arise when a proposed action would infringe on constitutional rights or treaty rights. For BFSA, the general outline of consultation procedures focuses on Native American interests and concerns, but the approach is not significantly different from the approaches employed to identify and address the points of view and convictions of other interested parties. It is the nature of the planning and environmental review process to give adequate consideration to issues from outside the single agency performing the action, including those that do not lend themselves to physical inspection or objective and quantifiable analysis. BFSA has worked with many of the Native American groups, tribes, and reservations throughout southern California and has developed a mutual respect and an ability to address their concerns. Modified Phase I Process—Re-Survey A qualified archaeologist would need to visit the site to verify that there have been no adverse impacts to the property since the 2003 RECON study and to ascertain the current condition of the site. The field survey generally consists of the field check of known resources through intensive field reconnaissance of the entire subject property. In addition to the specific location of resources, a Phase I would also establish a sense of the horizontal extent of the identified resources as it compares to the previously recorded boundaries of the sites, a general impression regarding the potential for subsurface deposits, as well as an initial assessment of the integrity of the resource. Areas of high cultural probability and with dense vegetation are given extra care in order to accurately identify any resources. At the Phase I investigation level, prehistoric and historic site documentation consists of the completion of California Historic Resources Inventory forms following the guidelines of the Instructions for Recording Historic Resources (Office of Historic Preservation 1995). Report The final report will adhere to the guidelines set forth by the Office of Historic Preservation for the Archaeological Research Management Reports (ARMR). Page? CONSULTING (Ponto (Beachfront Vittage Vision <Ptan (Program F. Geology, Soils, and Seismicity This section of the EIR will be prepared in accordance with the scope of work included in the Ponto Beachfront Village Vision Plan Request for Proposal. To complete the required geotechnical analysis, RBF has teamed up with Kleinfelder, Inc. The geotechnical analysis shall consist of review of existing reports and published information and a geologic site reconnaissance. No new borings are anticipated for this phase of the project. After review of existing information and site reconnaissance, a feasibility level geotechnical report will be prepared that will take into consideration the geotechnical elements of the site. Geologic hazards will be addressed including faulting, landslides and liquefaction. G. Hazards and Hazardous Materials This section of the EIR will be prepared in accordance with the scope of work included in the Ponto Beachfront Village Vision Plan Request for Proposal. If necessary, RBF will prepare a Phase I Environmental Site Assessment to evaluate the presence of potentially hazardous materials and will integrate this analysis into the EIR. The Scope of Work shall include the following: Peer Review Delineation of Jurisdictional Waters RBF will conduct a peer review and prepare a summary technical memorandum based on the existing Delineation of Jurisdictional Waters (JD) (provided by the client) that has been prepared for the subject site. RBF's review of the JD focuses on the format, rather than findings for the subject site. This Task does not include an RBF site reconnaissance, permit applications, and resource agency consultation. Phase I Environmental Site Assessment RBF will prepare a Phase I Environmental Site Assessment (ESA) for the proposed project. The objectives of the Phase I ESA is to: (1) evaluate the potential for hazardous materials on the site, and (2) generally characterize the expected nature of hazardous materials that may be present. The assessment is not intended to provide specific qualitative or quantitative information as to the actual presence of hazardous materials at the site, but merely identify the potential presence based on available information and provide preliminary conclusions relative to site conditions. This scope specifically excludes laboratory testing, field sampling and chain of title documents (although these can be reviewed by RBF if provided by the Client). The documentation will be designed to document past activities, facilities, or waste disposal practices, which may have resulted in soil or groundwater contamination. Past site usage will be investigated through an aerial photograph review, interviews, review of former permits, review of documents on file, and a research of former PageS "^*<isXrrji <Ponto (Beachfront Vitiate Vision <P[an (Program citations from state and local agencies (if any). Current site conditions will be documented by an on-site inspection of the project area. H. Hydrology / Water Quality This section of the EIR will be prepared in accordance with the scope of work included in the Ponto Beachfront Village Vision Plan Request for Proposal. RBF will prepare a preliminary drainage report and stormwater management plan to evaluate potential impacts to hydrology and water quality. The scope of work will include preparation of an analysis of the pre- and post-project conditions of on-site hydrology and drainage. RBF's Water Resources Division will prepare a drainage study for the project to analyze on-site hydrologic changes resulting from the project. The study will include a comparison of the existing conditions hydrologic characteristics to the proposed conditions characteristics. It is anticipated that the City will require the project to attenuate any increases in 100-year peak flows leaving the property, therefore this task includes time to prepare preliminary detention calculations, as well as time to for a meeting with City staff to discuss any issues that arise during the review process. This scope of work does not include a watershed analysis, analysis of off-site drainage facilities, preparation of calculations or designs for actual construction documents, or responses to plan check cycles beyond the second cycle. Additional plan check cycles or extra work can be addressed and completed upon City approval. /. Land Use Planning This section of the EIR will be prepared in accordance with the scope of work included in the Ponto Beachfront Village Vision Plan Request for Proposal. /. Mineral Resources This section of the EIR will be prepared in accordance with the scope of work included in the Ponto Beachfront Village Vision Plan Request for Proposal. K. Noise This section of the EIR will be prepared in accordance with the scope of work included in the Ponto Beachfront Village Vision Plan Request for Proposal. RBF will prepare a technical noise analysis that will be integrated into the EIR. The noise analysis will contain the following elements: Existing Conditions. RBF will review applicable State and City noise and land use compatibility criteria for the project area. Noise standards regulating noise impacts in the Noise Element and Noise Ordinance of the City of Carlsbad will be discussed for land uses on and adjacent to the project sites. The areas with potential future noise impacts will be identified using land use information, aerial photographs, and field Page9 CONS ULTIMO (Ponto (Beachfront Vittage Vision <Pfan Program reconnaissance. Existing roadway traffic noise within the project area will be calculated using traffic data included in the traffic study. RBF will conduct a site visit along the project sites and at adjacent land uses. During the site visit, RBF will conduct short-term noise level measurements along the project area. Noise monitoring equipment will consist of a Larson Davis Laboratories Model LDL 820 sound level meter (SLM) equipped with Larson Davis Type 2561 random incidence microphone. The instrumentation will be calibrated prior to use with a Larson Davis CAL250 acoustical calibrator to ensure the accuracy of the measurements. The measurements and procedures shall be compatible with the applicable requirements of the American National Standards Institute (ANSI) for Type I (precision) sound level meters. The results of the noise measurements will be post-processed and graphically illustrated with the Larson Davis Laboratories Data Navigation Analysis (DNA) software. The noise monitoring survey will be conducted at up to eight separate locations to establish anticipated sound levels for potentially affected adjacent residences. Noise recording lengths are anticipated to require approximately 10 minutes at each location. The noise measurements will evaluate noise exposure due to traffic while accounting for local topography, shielding from existing structures, and variations in travel speed. Construction-related Noise. The Environmental Protection Agency (EPA) recommended noise emission levels and attenuation rates will be used for construction equipment during construction of the proposed project. Analysis requirements will be based on the sensitivity of the area and the Noise Ordinance specifications of the City. Stationary Noise Sources. Potential effects of existing off-site noise sources will be evaluated based on the City's land use compatibility standards. Compliance with applicable noise standards will be evaluated, with recommended mitigation measures included where appropriate. Stationary noise impacts resulting from the interaction of the proposed mixed-uses will also be discussed. Rail Noise. Railroad noise levels will be calculated using the U.S. Department of Housing and Urban Development (HUD) Noise Assessment guidelines. RBF will investigate any potential impacts arising from the adjacent rail line utilizing the Federal Rail Administration methodology. To conduct this analysis, RBF will research the train patterns adjacent to the project site and model the train movement noise and horn noise. Traffic Noise. Noise impacts from vehicular traffic will be assessed using the U.S. Federal Highway Traffic Noise Prediction Model (FHWA-RD-77-108, December 1978). The analysis will focus on potential noise impacts to residential areas. Model input data will include average daily traffic volumes, day/night percentages of autos, medium and heavy trucks, vehicle speeds, ground attenuation factors, and roadway widths. The 24-hour weighted Community Noise Equivalent Levels (CNEL) will be presented in a tabular format. Traffic parameters necessary for the model input will be obtained from the traffic study. PagelO CONOULTfNO (Ponto (Beachfront Vittage Vision <Ptan (Program Mitigation Measures. Noise mitigation measures designed to reduce short- and long- term impacts to acceptable noise levels in the vicinity of the project site will be determined where necessary. Both an evaluation of the potential mitigation measures and a discussion of their effectiveness will be provided. L. Population and Housing This section of the EIR will be prepared in accordance with the scope of work included in the Ponto Beachfront Village Vision Plan Request for Proposal. M. Public Services This section of the EIR will be prepared in accordance with the scope of work included in the Ponto Beachfront Village Vision Plan Request for Proposal. N. Recreation This section of the EIR will be prepared in accordance with the scope of work included in the Ponto Beachfront Village Vision Plan Request for Proposal. O, Traffic, Circulation, and Parking This section of the EIR will be prepared in accordance with the scope of work included in the Ponto Beachfront Village Vision Plan Request for Proposal. RBF will prepare a technical traffic analysis to evaluate potential traffic impacts. The traffic analysis will contain the following elements: Update Traffic Study RBF will review the September 2004 "Traffic Constraints Study" prepared for the project study area. In this task, RBF will update the data and reformat the report to be consistent with City traffic study requirements. RBF will update the existing conditions peak hour traffic volume data to reflect 2005 traffic count data from City of Carlsbad Growth Management Plan. As the traffic study is updated to reflect existing conditions, the report will be reformatted to adhere to both City of Carlsbad Growth Management Plan standards. All signalized intersections in the study area will be graphically illustrated and provided in the traffic report. If necessary, project-generate trips will be recalculated and redistributed on the roadway network, if changes to land use have occurred since the last traffic report was prepared. RBF will review and update the list of study intersections and roadway segments. Locations forecast to carry 20 percent or more of the project-generated traffic will be added to the traffic study, if not previously included. Page11 C D N B U LTIN D (Ponto (Beachfront Vittage Vision <Pfan Program The traffic study will be formatted such that the following scenarios are addressed: • Existing Conditions • Existing Plus Project • 2010 without/with Project (near-term) • 2030 without/with Project (horizon year) This format is consistent with the requirements set forth in the SANTEC/ITE traffic study guidelines. Intersections and roadway segments forecast to be impacted under project conditions will be identified in the traffic study. Significant impacts will be based on the SANTEC/ITE threshold of a two percent change in V/C ratios for both intersections (with LOS calculated using ICU methodology) and peak hour roadway segment analysis. At locations forecast to operate at deficient levels of service improvements will be recommended. The jurisdiction of each impacted intersection and/or roadway segment will be clearly identified in the traffic report. RBF will work closely with City staff to ensure that all planned improvement projects included in the City's Growth Management Plan are identified in the study area and included in proposed improvements, where appropriate. Where improvements cannot fully satisfy all impacts, those locations will be clearly addressed in the traffic report. A thorough review of the project site plan will be provided in the traffic study that addresses pedestrian linkages through the site, bicycle access, and on-site circulation. Through this evaluation, RBF will work with City staff to document linkages between communities to ensure compliance with City's access requirements. Response to Comments RBF will review and respond to comment letters relating to both Planning Commission and City Council hearings. If necessary, the traffic report will be modified to address comments. Parking Study RBF will prepare a parking study for the proposed land use that will include parking demand and shared parking analysis for the uses identified on site. The parking study will include exhibits illustrating the allocation of parking by use throughout the site plan. P. Utilities/Service Systems This section of the EER will be prepared in accordance with the scope of work included in the Ponto Beachfront Village Vision Plan Request for Proposal. SUBTASK 2.6 GROWTH INDUCEMENT This section of the EIR will be prepared in accordance with the scope of work included in the Ponto Beachfront Village Vision Plan Request for Proposal. Pagel2 CONSULTING 33 F~~<wakrrjl (Ponto (Beachfront Vittage Vision <PCan (program SUBTASK 2.7 CUMULATIVE IMPACTS This section of the EIR will be prepared in accordance with the scope of work included in the Ponto Beachfront Village Vision Plan Request for Proposal. SUBTASK 2.8 ALTERNATIVES TO THE PROPOSED ACTION This section of the EIR will be prepared in accordance with the scope of work included in the Ponto Beachfront Village Vision Plan Request for Proposal. Please note: This scope of work does not include the graphical depiction of any alternative project designs, as neither the alternatives nor the scope of work associated with each alternative is known at this time. If desired, alternative project designs may be prepared by RBF's engineering department at an additional fee. SUBTASK 2.9 ADDITIONAL MANDATORY CEQA SECTIONS RBF will provide additional sections in the EIR to meet CEQA and City requirements including the following: A. Significant Irreversible Environmental Changes That Would Be Involved In the Proposed Action Should It Be Implemented Changes in the environment and uses on non-renewable resources that will occur as a result of the proposed project that can be considered irreversible or irretrievable will be evaluated and discussed within this section of the EIR. B. Effects Found Not To Be Significant RBF will provide a qualitative explanation of issues checked No Impact in the City's Initial Study in order to substantiate the conclusions of the Initial Study. C. Inventory of Unavoidable Adverse Impacts This section will be a comprehensive list of unavoidable adverse impacts associated with the proposed project. D. Inventory of Mitigation Measures This section will be a comprehensive list of mitigation measures for the proposed project. To allow direct incorporation of mitigation measures into Conditions of Approval, RBF will provide a summary of mitigation measures. E. Organizations and Persons Consulted/Bibliography Federal, state or local agencies, other organizations and private individuals consulted in preparing the EIR will be listed in this section. RBF will provide a complete list of reference materials used in preparation of the EIR. Pagel3 C O N 8 U LTl N D <Ponto ^Beachfront Vittage Vision <PCan (Program SUBTASK 2.10 GRAPHIC EXHIBITS The EIR will include a maximum of 30 exhibits to enhance the written text and clarify the proposed project environmental impacts. Using state-of-the-art computer design equipment and techniques, our in-house graphic design team will create professional quality, black and white or full color exhibits, dividers and covers for the EIR and Appendices. TASK 3.0 DRAFT EIR SUBTASK 3.1 SCREENCHECK EIR RBF will prepare the Screencheck EIR and technical appendices for the City to review. RBF will provide the City with 5 copies of the revised document. Fees for reproduction of the document are included in the budget for the project. a Provide 5 (5) screen check draft EIR documents for City staff review that will be consistent with CEQA and the Carlsbad Environmental Protection Ordinance (Title 19 of the Carlsbad Municipal Code) within twelve (12) weeks from entering into agreement with the City. SUBTASK 3.2 SECOND SCREENCHECK DRAFT EIR RBF will respond to one complete set of City comments on the Screencheck Draft EIR. If desired by the City, RBF will provide the revised Screencheck Draft of the EIR with all changes highlighted to assist the final check of the document. Fees for reproduction of the document are included in the budget for the project. a Provide five (5) copies of the revised Draft EIR text, including appendices and exhibits, which incorporate staffs written recommendations and revisions to the screen check Draft EIR, in addition to the first draft of a Mitigation Monitoring and Reporting Program and Candidate Findings of Fact within twenty-four (24) weeks from entering into agreement with the City. SUBTASK 3.3 COMPLETION OF THE DRAFT EIR RBF will respond to final comments on the Draft EIR by the City and will prepare the report for the required 45-day public review period. RBF will also work with the City to develop a distribution listing for the Notice of Completion (NOC) and Draft EIR (distribution will be done by the City). a Provide fifty-one (51) copies of the City staff-approved Draft EIR with appendices, exhibits, and Mitigation Monitoring and Reporting Program. Twenty-five (25) of those copies shall be in 3-ring, loose-leaf binders, and twenty-five (25) shall be spiral-bound copies. One copy shall be an un-bound reproducible copy. PBF• • • • CONSULTING Page14 3s- <Ponto (Beachfront Vitiate Vision (Ptan (Program a Provide ten (10) copies of the City staff-approved Draft EIR with appendices, exhibits, and Mitigation Monitoring and Reporting Program on CD's, including one (1) Master CD from which copies can be made. TASK 4.0 FINAL ENVIRONMENTAL IMPACT REPORT SUBTASK 4.1 RESPONSE TO COMMENTS/FINAL EIR RBF will respond to comments received on the Draft EIR during the 45-day public review period, and additional comments raised during public hearings. This task includes written responses to written comments received on the Draft EIR. The Draft Responses to Comments will be prepared for review by City staff. Following review of the Draft Responses to Comments, RBF will finalize this section for inclusion in the Final EIR. For budgeting purposes, an assumption of 160 hours to prepare response to comments was used, billed on a time and materials basis. This time also includes word processing and graphic artist time to format the comments. Should the comments require more than the budgeted time, the additional time required would be modified with City authorization. a Consultant shall submit written responses to comments and provide five (5) screen check Final EIR documents which include all comments on the Draft EIR within thirty (30) days after the public review period ends. In addition five (5) copies of the Candidate Findings of Fact incorporating staffs comments shall be submitted. a Provide five (5) copies of the Final Draft EIR, including appendices and exhibits, which shall incorporate staffs written recommendations and revisions to the screen check Final EIR, a Mitigation Monitoring and Reporting Program and a separate submittal consisting of the Candidate Findings of Fact within two (2) weeks of receiving the written comments from City Staff on the responses to comments and the Final EIR. a Provide fifty-one (51) copies of the City staff-approved Final Draft EIR with appendices and exhibits. Twenty-five (25) of those copies shall be in 3-ring, loose-leaf binders, and twenty-five (25) shall be spiral-bound copies. One copy shall be an un-bound reproducible copy. Q Provide ten (10) copies of the City staff-approved Final Draft EIR with appendices, exhibits, and Mitigation Monitoring and Reporting Program on CD's, including one (1) Master CD from which copies can be made. a Provide five (5) copies of the certified Final EIR with appendices, exhibits, and Mitigation Monitoring and Reporting Program and the Findings of Fact including one (1) Master CD from which copies can be made, which incorporate any changes made to the Final draft documents during the public hearing and certification process. SUBTASK 4.2 MITIGATION MONITORING AND REPORTING PROGRAM RBF will prepare a Mitigation Monitoring and Reporting Program to be defined through working with City staff to identify appropriate monitoring steps/procedures and in order to provide a basis for monitoring such measures during and upon project implementation. Page15 CONSULTING (Ponto (Beachfront tillage Vision (Plan (Program SUBTASK 4.3 FINAL EIR The Final EIR will consist of the revised Draft EIR text, as necessary, and the Responses to Comments section. The Draft EIR will be revised in accordance with the responses to public comments on the EIR. SUBTASK 4.4 CANDIDATE FINDINGS OF FACT/STATEMENT OF OVERRIDING CONSIDERATIONS RBF will prepare the Findings in accordance with the provisions of Section 15091 and 15093 of the State CEQA Guidelines and in a form specified by the City. RBF will submit the Draft Findings for City review and will respond to one set of City comments. RBF will provide administrative assistance to facilitate the CEQA process including the preparation of the Statement of Overriding Considerations and Findings for City use in the project review process. TASK 5.0 PROJECT COORDINATION, MEETINGS AND HEARINGS Mr. Alex Jewell, AICP, will be responsible for management and supervision of the EIR Project Team, as well as consultation with the City staff to incorporate City policies into the EIR. Mr. Jewell will undertake consultation and coordination of the project and review the EIR for compliance with CEQA requirements and guidelines and City CEQA procedures. As the Project Manager, Mr. Jewell will coordinate with all technical staff, consultants, support staff and word processing toward the timely completion of the EIR. Mr. Jewell will be part of the Project Team at public hearings and make presentations, as necessary. This scope of work has assumed a total of 100 hours, billed on a time and materials basis for project coordination, meetings, and hearings. Additional time above that amount will be accommodated as an additional service upon the consent of the City, if necessary. CONSULTING Pagel6 37 ATTACHMENT 2 PRINCIPAL-IN-CHARGE Jeff Barfield, AICP Planning Commission / City Council Meeting Representative TECHNICAL REVIEW Kevin Thomas, CEP STAFF NAME Danielle Putnam, AICP Dawn Wilson, PE Nicole Marotz, AICP Edde Torres, INCE Marc Schulte, PE, CFM Bruce Grove, REA, CEI Barry Bevier, PE, GE Scott Rugg, PG, CEG Brian Smith Derek Langsford PROJECT TEAM PROJECT MANAGER Alex Jewell, AICP ENVIRONMENTAL SPECIALISTS ROLE Land Use and Policy Analysts Transportation / Traffic Environmental Analysis Air / Noise Hydrology / Water Quality Phase I Site Assessment Geotechnical Geology Cultural Resources Biology FIRM RBF Consulting RBF Consulting RBF Consulting RBF Consulting RBF Consulting RBF Consulting Kleinfelder, Inc. Kleinfelder, Inc. Brian F. Smith & Associates Helix Environmental Planning Ia. O Si* sl ID g I ^Nil! is S & I I § iss"s8IT) S AGREEMENT BETWEEN CITY/REDEVELOPMENT AGENCY AND APPLICANT FOR PAYMENT OF EIR CONSULTANT COSTS ATHIS AGREEMENT is made this II day of Apn 1 .200k . between the CITY OF CARLSBAD, a municipal corporation of the State of California, hereinafter referred to as CITY, CARLSBAD REDEVELOPMENT AGENCY, a body corporate and politic, hereinafter referred to as "AGENCY", and K. Hovnanian ,- Companies, aJimited liability corporation, hereinafter referred to as "APPLICANT". RECITALS WHEREAS, the APPLICANT has property located within the area to be governed by the Ponto Beachfront Village Vision Plan, if approved; and WHEREAS, the CITY and AGENCY have instructed staff to prepare an Environmental Impact Report for said Ponto Beachfront Village Vision Plan; and WHEREAS, the APPLICANT has indicated its intent to file with the CITY and/or AGENCY a request for approval of a proposed project identified as Carlsbad Coast Residential and Mixed Use Project, which is intended to be consistent with the Ponto Beachfront Village Vision Plan, if approved, and shall also require an Environmental Impact Report; and WHEREAS, the CITY, AGENCY, and APPLICANT desire to prepare an Environmental Impact Report that will include review for both the Ponto Beachfront Village Vision Plan and the proposed Carlsbad Coast Residenital and Mixed Use Project; and WHEREAS, CITY has determined that its current staff is inadequate in number to process the Environmental Impact Report in a timely and thorough manner, and therefore shall require the services of private consultant; and 1 Rev. 07/31/00 WHEREAS, APPLICANT has agreed to assist the CITY and AGENCY in funding said Environmental Impact Report and agrees to pay to CITY and/or AGENCY a proportionate share of the amount necessary to hire a CONSULTANT. NOW, THEREFORE, in consideration of the covenants and conditions, it is agreed as follows: 1. The CITY/AGENCY will engage the firm of RBF Consulting hereinafter referred to as "CONTRACTOR" to perform the necessary work in the processing and monitoring of the Environmental Impact Report for that area more particularly depicted upon a site map attached as Attachment 1 and made a part of this agreement. 2. It is understood that the CONTRACTOR services shall conform to the Proposal attached as Attachment 2 and made a part of this agreement, and may require: a) Field exploration; b) Weekly communication with the City/Agency staff; c) Written reports; and d) Such other work necessary to properly evaluate the proposed project as directed by the Planning Director. 3. It is understood that the CITY/AGENCY will direct the CONTRACTOR to complete a draft and final Environmental Impact Report at the earliest feasible time. The CITY/AGENCY will advise the APPLICANT in writing of any impacts which may render the proposed project infeasible within a reasonable time after CITY/AGENCY has received the CONTRACTOR's conclusions in writing. 2 Rev. 07/31/00 4. The APPLICANT shall pay to the CITY and AGENCY a total of twenty percent (20%) of the actual total cost of the CONTRACTOR 's services. The noted proportionate share is based on the acreage of land owned or represented by APPLICANT within the Ponto Beachfront Village Vision Plan and identified for said development proposal. CONTRACTOR cost shall be based on the costs set forth in Attachment 3. The APPLICANT has advanced the sum of forty-six thousand one hundred and eleven dollars ($46.111) as payment on account for the actual cost of the CONTRACTOR'S services. In the event it appears, as the work progresses, that said sum will not be sufficient to cover the actual cost, the CITY/AGENCY will notify the APPLICANT of the difference between the amount deposited and the new estimated cost. CITY/AGENCY will ensure, to the extent feasible, that no further work will be performed by the CONTRACTOR incurring an obligation beyond the amount advanced without an appropriate amendment to this Agreement. If the actual cost of preparing the report is less than the APPLICANT'S proportionate share advance, any surplus will be refunded to APPLICANT by CITY/AGENCY. 5. It is understood that the CONTRACTOR shall be an independent contractor of the CITY/AGENCY and CITY/AGENCY shall not be liable for any negligent acts or omissions of the CONTRACTOR. The APPLICANT agrees to permit the CONTRACTOR to enter upon his property and to perform all work thereon as the CONTRACTOR deems necessary to complete the Environmental Impact Report. It is agreed that the APPLICANT will not interfere with the CONTRACTOR in the performance of such work or attempt to influence such CONTRACTOR during the course of his investigation and report. 3 Rev. 07/31/00 6. It is understood that the CITY/AGENCY will attempt to bring the Environmental Impact Report to Planning Commission and City Council as soon as possible, barring no delays from the APPLICANT. 7. If the CITY/AGENCY is required to defend any third party claims and suits challenging any action taken by the CITY/AGENCY with regard to any procedure or substantive aspect of the CITY/AGENCY's environmental process and subsequent approval of development of the subject property, the APPLICANT shall be responsible and reimburse the CITY/AGENCY for legal fees and costs, in the appropriate proportionate share as set forth in this Agreement, that may be incurred by the CITY/AGENCY in defense of such action or proceeding. The CITY/AGENCY shall have the absolute right to retain such legal counsel as the CITY/AGENCY deems necessary and appropriate. APPLICANT shall reimburse the CITY/AGENCY for its proportionate share of any award of court costs or attorney fees made against CITY/AGENCY in favor of any third party challenging either the sufficiency of the EIR or the validity of the CITY/AGENCY's subsequent approval of the development application. This obligation survives until all legal proceedings have been concluded and continues even if the CITY/AGENCY's approval is not validated. Rev. 07/31/00 IN WITNESS WHEREOF, the parties hereto have executed this agreement on the day and year first above written. Executed by APPLICANT this «34 day of 20^ . APPLICANT: K. Hovnanian Companies of California, Inc., a California limited liability company (Name of Applicant) (sign here) // Nicholas Pappas President and First Assistant Secretary (print name here/title) Byj (sign here) (print name here/title) CITY OF CARLSBAD, a municipal corporation of th« , City Clenev-;•>o'^ (Proper notarial acknowledgment of execution by Contractor must be attached.) (Chairman, president or vice-president and secretary, assistant secretary, CFO or assistant treasurer must sign for corporations. Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.) (If signed by an individual partner, the partnership must attach a statement of partnership authorizing the partner to execute this instrument). APPROVED AS TO FORM: RONACCTR. BALL, City Attorney Bv:Q. Asoiottfot City Attorney <-{-/&, Rev. 07/31/00 STATE OF CALIFORNIA COUNTY OF SANDI On 240 4> Notary Public, personally appeared before me, , [HTpersonally known to me - ef-£ — ] proved to mo on OK basis uf salisfaUuiy evidence- to be the person^) whose namef^ fifatc' subscribed to the within instrument and acknowledged to me that (JigJ'she/they executed the same in(nig)hcr/thoir authorized capacity(ieSj, and that signature(^'on the instrument the personj^C or the entity upon behalf of which the acted, executed the instrument. fficial seal. (Signature of Notary) CATHIE ZHOU Commission #1508516 Notary Public-California Orange County . My Comm. Expires Aun j 7.2008) AGREEMENT BETWEEN CITY/REDEVELOPMENT AGENCY AND APPLICANT FOR PAYMENT OF EIR CONSULTANT COSTS THIS AGREEMENT is made this U day of /\T?r\\ .200U . between the CITY OF CARLSBAD, a municipal corporation of the State of California, hereinafter referred to as CITY, CARLSBAD REDEVELOPMENT AGENCY, a body corporate and politic, hereinafter referred to as "AGENCY", and Dale Schreiber, a property owner, hereinafter referred to as "APPLICANT". RECITALS WHEREAS, the APPLICANT has property located within the area to be governed by the Ponto Beachfront Village Vision Plan, if approved; and WHEREAS, the CITY and AGENCY have instructed staff to prepare an Environmental Impact Report for said Ponto Beachfront Village Vision Plan; and WHEREAS, the APPLICANT has indicated its intent to file with the CITY and/or AGENCY a request for approval of a proposed project identified as Hotel and Restaurant Development, which is intended to be consistent with the Ponto Beachfront Village Vision Plan, if approved, and shall also require an Environmental Impact Report; and WHEREAS, the CITY, AGENCY, and APPLICANT desire to prepare an Environmental Impact Report that will include review for both the Ponto Beachfront Village Vision Plan and the proposed Hotel and Restaurant Development; and WHEREAS, CITY has determined that its current staff is inadequate in number to process the Environmental Impact Report in a timely and thorough manner, and therefore shall require the services of private consultant; and WHEREAS, APPLICANT has agreed to assist the CITY and AGENCY in 1 Rev. 07/31/00 ¥7 funding said Environmental Impact Report and agrees to pay to CITY and/or AGENCY a proportionate share of the amount necessary to hire a CONSULTANT. NOW, THEREFORE, in consideration of the covenants and conditions, it is agreed as follows: 1. The CITY/AGENCY will engage the firm of RBF Consulting hereinafter referred to as "CONTRACTOR" to perform the necessary work in the processing and monitoring of the Environmental Impact Report for that area more particularly depicted upon a site map attached as Attachment 1 and made a part of this agreement. 2. It is understood that the CONTRACTOR services shall conform to the Proposal attached as Attachment 2 and made a part of this agreement, and may require: a) Field exploration; b) Weekly communication with the City/Agency staff; c) Written reports; and d) Such other work necessary to properly evaluate the proposed project as directed by the Planning Director. 3. It is understood that the CITY/AGENCY will direct the CONTRACTOR to complete a draft and final Environmental Impact Report at the earliest feasible time. The CITY/AGENCY will advise the APPLICANT in writing of any impacts which may render the proposed project infeasible within a reasonable time after CITY/AGENCY has received the CONTRACTOR 's conclusions in writing. Rev. 07/31/00 4. The APPLICANT shall pay to the CITY and AGENCY a total of twelve percent (12%) of the actual total cost of the CONTRACTOR 's services. The noted proportionate share is based on the acreage of land owned or represented by APPLICANT within the Ponto Beachfront Village Vision Plan and identified for said development proposal. CONTRACTOR cost shall be based on the costs set forth in Attachment 3. The APPLICANT has advanced the sum of twenty-seven thousand six hundred and sixty-seven dollars ($27.667) as payment on account for the actual cost of the CONTRACTOR'S services. In the event it appears, as the work progresses, that said sum will not be sufficient to cover the actual cost, the CITY/AGENCY will notify the APPLICANT of the difference between the amount deposited and the new estimated cost. CITY/AGENCY will ensure, to the extent feasible, that no further work will be performed by the CONTRACTOR incurring an obligation beyond the amount advanced without an appropriate amendment to this Agreement. If the actual cost of preparing the report is less than the APPLICANT'S proportionate share advance, any surplus will be refunded to APPLICANT by CITY/AGENCY. 5. It is understood that the CONTRACTOR shall be an independent contractor of the CITY/AGENCY and CITY/AGENCY shall not be liable for any negligent acts or omissions of the CONTRACTOR. The APPLICANT agrees to permit the CONTRACTOR to enter upon his property and to perform all work thereon as the CONTRACTOR deems necessary to complete the Environmental Impact Report. It is agreed that the APPLICANT will not interfere with the CONTRACTOR in the performance of such work or attempt to influence such CONTRACTOR during the course of his investigation and report. 3 Rev. 07/31/00 6. It is understood that the CITY/AGENCY will attempt to bring the Environmental Impact Report to Planning Commission and City Council as soon as possible, barring no delays from the APPLICANT. 7. If the CITY/AGENCY is required to defend any third party claims and suits challenging any action taken by the CITY/AGENCY with regard to any procedure or substantive aspect of the CITY/AGENCY's environmental process and subsequent approval of development of the subject property, the APPLICANT shall be responsible and reimburse the CITY/AGENCY for legal fees and costs, in the appropriate proportionate share as set forth in this Agreement, that may be incurred by the CITY/AGENCY in defense of such action or proceeding. The CITY/AGENCY shall have the absolute right to retain such legal counsel as the CITY/AGENCY deems necessary and appropriate. APPLICANT shall reimburse the CITY/AGENCY for its proportionate share of any award of court costs or attorney fees made against CITY/AGENCY in favor of any third party challenging either the sufficiency of the EIR or the validity of the CITY/AGENCY's subsequent approval of the development application. This obligation survives until all legal proceedings have been concluded and continues even if the CITY/AGENCY's approval is not validated. Rev. 07/31/00 S'O IN WITNESS WHEREOF, the parties hereto have executed this agreement on the day and year first above written. Executed by APPLICANT this day of . 20 APPLICANT: (Name ofApplicant) (sign here) (print name here/title (sign here) CITY OF CARLSBAD, a municipal joration of" z—^m"'"// r <JV'ESTABLISHED\%^ CARLSBAD REDEVELOJ^ENifoo ./|. IMOV Q Krt/4w /^>r«r\/-\ro4fib oriC^fPfcVfifrr* .-* ^ C ATTEST: (print name here/title) (Proper notarial acknowledgment of execution by Contractor must be attached.) (Chairman, president or vice-president and secretary, assistant secretary, CFO or assistant treasurer must sign for corporations. Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.) (If signed by an individual partner, the partnership must attach a statement of partnership authorizing the partner to execute this instrument). APPROVED AS TO FORM: RONALD R. PALL, City Attorney By: rj^%< Assistant City Attorney Rev. 07/31/00 STATE OF CALIFORNIA COUNTY OF SAN DIEGO On [7 2O3& before me, n^i/l 'Notary Public, personally appeared / 1- „ QUI5 H-pef&e»a% [ ^proved to me on the basis of satisfactory evidence to be the person£s)_whose namej^ls/are-subscribed to the within instrument and acknowledged to me that executed the same in his/her/their authorized capacity(ics), and that by his/her/their signatufefs)" on the instrument the personfs)p3r the entity upon behalf of which the persopfs^-acted, executed the instrument. WITNESS my hand and official seal. of Notary)OFFICIAL SEAL ASH NICKLE AGREEMENT BETWEEN CITY/REDEVELOPMENT AGENCY . THIS AGREEMENT is made Shis _1L_ day of Jt^OJ _____________ ,20 between the CITY OF CARLSBAD, a municipal corporation of the State of California hereinafter referred to as CITY, CARLSBAD REDEVELOPMENT corporate and politic, hereinafter referred to as "AGENCY", and.Coast Development aA limited liability corporation, hereinafter referred to as "APPLICANT". RECITALS WHEREAS, the APPLICANT has property located within the area to be governed by the Ponto Beachfront Village Vision Plan, if approved: and WHEREAS, the CITY and AGENCY have instructed staff to prepare an Environmental Impact Report for said Ponto Beachfront Village Vision Plan; and WHEREAS, the APPLICANT has indicated its intent to file with the CITY and/or AGENCY a request for approval of a proposed project identified as Sa.L'sbad_Coast HojeJ_^jd_JJ!M§.haigsJ which is intended to be consistent with the Ponto Beachfront Village Vision Plan, if approved, and shall also requrre an Environmental Impact Report; and WHEREAS, the CITY, AGENCY, and APPLICANT desire to prepare an Environmental Impact Report that will include review for both the Ponto Beachfront Village Vision Plan and the proposed Carlsbad Coast Hotel and Timeshares project; and WHEREAS, CiTY has determined that its current staff is inadequate in number to process the Environmental Impact Report in a timely and thorough manner, and therefore shall require the services of private consultant, and I Rev 07/31/00 WHEREAS, APPLICANT has agreed to assist the CITY and AGENCY in funding said Environmental Impact Report and agrees So pay to CITY and/or AGENCY a proportionate share of the amount necessary to hire a CONSULTANT. NOW, THEREFORE, in consideration of the covenants and conditions, it is agreed as follows: 1,. The CITY/AGENCY will engage the firm of RBF_jConsujtiri3 hereinafter referred to as "CONTRACTOR" to perform the necessary work in the processing and monitoring of the Environmental impact Report for that area more particularly depicted upon a site map attached as Attachment 1 and made a part of Shis agreement. 2. It is understood that the CONTRACTOR services shall conform to the Proposal attached as Attachment 2 and made a part of Ihis agreement, and may require: a) Field exploration; b) Weekly communication with the City/Agency staff: c) Written reports; and d) Such other work necessary to properly evaluate the proposed project as directed by the Planning Director. 3. It is understood that the CITY/AGENCY will direct the CONTRACTOR to complete a draft and final Environmental Impact Report at the earliest feasible time. The CITY/AGENCY will advise the APPLICANT in writing of any impacts which may render the proposed project infeas;bie within a reasonable time after CITY/AGENCY has received the CONTRACTOR 's conclusions in writing. 2 Rev. 07/31 (00 4. The APPLICANT shall pay to the CITY and AGENCY a total of twenty-four percent (24%) of the actual total cost of the CONTRACTOR 's services. The noted proportionate share is based on the acreage of land owned or represented by APPLICANT within She Ponto Beachfront Village Vision Plan and identified for said development proposal. CONTRACTOR cost shall be based on the costs set forth in Attachment 3. The APPLICANT has advanced the sum of fifty-five thousand three hundred and thirty-three dollars ($55.333) as payment on account for the actual cost of the CONTRACTOR'S services. In the event it appears, as the work progresses, that said sum wili not be sufficient to cover the actual cost, the CITY/AGENCY wilt notify the APPLICANT of the difference between the amount deposited and the new estimated cost. CITY/AGENCY will ensure, to the extent feasible, that no further work will be performed by the CONTRACTOR incurring an obligation beyond the amount advanced without an appropriate amendment to this Agreement, If the actual cost of preparing the report is less than the APPLICANT'S proportionate share advance, any surplus will be refunded to APPLICANT by CITY/AGENCY. 5. It is understood that the CONTRACTOR shall be an independent contractor of the CITY/AGENCY and CITY/AGENCY shall not be liable for any negligent acts or omissions of She CONTRACTOR. The APPLICANT agrees to permit the CONTRACTOR to enter upon his property and to perform all work thereon as the CONTRACTOR deems necessary to complete the Environmental Impact Report. It is agreed that the APPLICANT will not interfere with the CONTRACTOR in the performance of such work or attempt to influence such CONTRACTOR during the course of his investigation and report. 3 Rev, 07/31/00 6 It is understood that the CITY/AGENCY will attempt to bring the Environmental Impact Report to Planning Commission and City Council as soon as possible, barring no delays from the APPLICANT, 7. if the CITY/AGENCY is required to defend any third party claims and suits challenging any action taken by the CITY/AGENCY with regard to any procedure or substantive aspect of the CITY/AGENCY's environmental process and subsequent approval of development of the subject property, the APPLICANT shall be responsible and reimburse the CITY/AGENCY for legal fees and costs, in the appropriate proportionate share as set forth in this Agreement, that may be incurred by the CITY/AGENCY in defense of such action or proceeding. The CITY/AGENCY shall have the absolute right to retain such legal counsel as the CITY/AGENCY deems necessary and appropriate. APPLICANT shall reimburse the CITY/AGENCY for its proportionate share of any award of court costs or attorney fees made against CITY/AGENCY in favor of any third party challenging either the sufficiency of the E!R or the validity of the CITY/AGENCY's subsequent approval of the development application. This obligation survives until all legal proceedings have been concluded and continues even if the CITY/AGENCY's approval is nof validated. Rev, 07/31/00 IN WITNESS WHEREOF, the parties hereto have executed this agreement on the day and year first above written. Executed by APPLICANT this APP CITY OF CARLS! tation of CARLSBAD REDEVELOPMENT AGENCY, a body and politic. (print name here/title) J.J JL V ~1 ixacVtive D (Proper notarial acknowledgment of execution by Contractor mwsMfe attached) (Chairman, president or vice-president and secretary, assistant secretary, CfO or assistant treasurer must sign for corporations. Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.) (If signed by an individual partner, the partnership must attach a statement of partnership authorizing the partner to execute this instrument). corporate APPROVED AS TO FORM: RONALD B. 6ALL. Cit^Attorney Rev 07/31/00 PROVINCE OF ONTARIO ) ss On THE 20th day of February, in the year 2006 before me, the undersigned, personally appeared Anthony Sharp, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/hers/their signature(s) on the instrument, the individual(s), or the person upon behalf which the individuql(s) acted, executed the instrument. Notary Public V --•" GOODMANS^ AD SHARP US, INC CONSENT OF THE SOLE DIRECTOR IN LIEU OF SPECIAL MEETING The undersigned, being the sole director of AD Sharp US, Inc. (the "Director"), a California corporation (the "Corporation"), by affixing his signature hereto, does hereby consent to and takes the following action and adopts the following resolutions by written consent, pursuant to the California General Corporation Law, as if the same had been done at a meeting of the Board of Directors duly called and held: WHEREAS, the Corporation is the sole member of Carlsbad Coast Development, LLC, a California limited liability company; WHEREAS, the Director wants to certify, confirm and ratify the powers and authority of the sole officer of the Corporation; IT IS RESOLVED, that the Director hereby certify that Anthony D. Sharp is the sole officer of the Corporation, vested with the offices of President, Secretary and Chief Financial Officer; and FURTHER RESOLVED; that Anthony D. Sharp is hereby ratified as sole officer of the Corporation, vested with the offices of President, Secretary and Chief Financial Officer; and FURTHER RESOLVED, that Anthony D. Shaip, sole officer of the Corporation, is hereby authorized, empowered and directed to perform all acts and do all things which he may deem necessary, appropriate or desirable to consummate the business of the Corporation, and to performed the duties of the offices vested in him; and FURTHER RESOLVED, that any action taken by Anthony D. Sharp as officer or director of the Corporation prior to the date of these resolutions is hereby ratified, confirmed and approved. FURTHER RESOLVED, that a copy of this Consent in Lieu of Special Meeting be delivered to the Corporation for inclusion in its minutes and filing with its corporate records. This day of February, 2006. -t^,^-- . ^. (Corporate Seal) Anthony D. Sharp, Director K:\5756\1\AD Sharp US, Inc. - BoD Consent.doc PROVINCE OF ONTARIO ) ss On THE 20th day of February, in the year 2006 before me, the undersigned, personally appeared Anthony Sharp, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/hers/their signature(s) on the instrument, the individual(s), or the person upon behalf which the individual(s) acted, executed the instrument. GOODMANS^ 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 26 27 28 RESOLUTION NO.410 A RESOLUTION OF THE HOUSING AND REDEVELOPMENT COMMISSION OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING AGREEMENTS WITH K. HOVNANIAN COMPANIES OF CALIFORNIA, INC., MR. DALE SCHREIBER, AND COAST DEVELOPMENT AS FINANCIAL PARTICIPANTS IN THE PREPARATION OF A PROGRAM ENVIRONMENTAL IMPACT REPORT (PEIR 05-05) FOR THE PONTO BEACHFRONT VILLAGE VISION PLAN (GPA 05-04/LCPA 05- 01/DI 05-01) AND RELATED APPLICATIONS, AND APPROVE THE APPROPRIATION OF FUNDING FOR SAID PEIR. The Housing and Redevelopment Commission of the City of Carlsbad, California, does hereby resolve as follows: 1. That agreements with K. Hovnanian Companies of California, Inc., Mr. Dale Schreiber, and Coast Development as financial participants in the preparation of a Program Environmental Impact Report (PEIR 05-05) for the Ponto Beachfront Village Vision Plan (GPA 05-04/LCPA 05-01/DI 05-01) and related applications are hereby approved and the City Manager is authorized to execute said agreements. 2. That the Finance Director is hereby authorized to appropriate funds from the South Carlsbad Coastal Redevelopment Area Operating Fund in the total amount of $101,444 for said PEIR. meeting of the Housing and March 2006, by the PASSED AND ADOPTED at a Special Redevelopment Commission on the 28th day of _ following vote, to wit: AYES: Commissioners Lewis, Kulchin, Packard, Sigafoose NOES: None JT: / Counc/l Member Hall CLAUDE/A ATTEST: /o/ESTABLISHED \% 3 RAYMQJJD R. PATCHETT, Secretary (SEAL) ; <n :1970