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2007-11-06; City Council; 19214; Cotton Bridges amendment to agreement
CITY OF CARLSBAD - AGENDA BILL AB# MTG. DEPT. 19,214 11/06/07 PLN AMENDMENT NO. 3 TO EIR CONSULTANT SERVICES CONTRACT AGREEMENT WITH COTTON BRIDGES ASSOCIATES FOR THE PREPARATION OF AN ENVIRONMENTAL IMPACT REPORT ON LA COSTA TOWN SQUARE-EIR 01-02 DEPT. HEAD CITY ATTY. CITY MGR. 2007-286 approving Amendment No. 3 to RECOMMENDED ACTION: That the City Council ADOPT Resolution No. the agreement with Cotton Bridges Associates, for the preparation of an Environmental Impact Report (EIR 01-02 - La Costa Town Square). ITEM EXPLANATION: The increase in the cost of the preparation of the EIR requires an amendment to the contract agreement. The second amended agreement with Cotton Bridges was for $190,082.00 to be spent on consultant services. This amount will be increased by $63,922.00 for a maximum fee of $254,004.00. The increase in contract cost is due to the need to update technical reports as a result of revised and updated technical studies for the project. The completion of the traffic study for the project will allow for the completion of the traffic model, carbon dioxide hot spot analysis, air quality section and noise analysis. A new additional study will conduct an analysis of the project potential global warming impacts. The new and revised reports will also warrant the need to update the cumulative effects, executive summary and an overall update to the draft EIR. FISCAL IMPACT: The cost of the preparation of the EIR is born by the developer and there are no costs to the City. ENVIRONMENTAL IMPACT: The amendment to the Cotton Bridges Associates consultant agreement does not constitute a project and is not subject to the California Environment Quality Act (CEQA). EXHIBITS: 1. 2. 3. 2007-286Council Resolution No. Signed Amendment No. 3 with Cotton Bridges Associates. Signed Third Amendended Agreement with La Costa Town Square, LLC. DEPARTMENT CONTACT: Van Lynch, (760) 602-4613, vlvnc@ci.carlsbad.ca.us FOR CITY CLERKS USE ONLY. COUNCIL ACTION: APPROVED DENIED D CONTINUED D WITHDRAWN D AMENDED D CONTINUED TO DATE SPECIFIC D CONTINUED TO DATE UNKNOWN D RETURNED TO STAFF D OTHER - SEE MINUTES D i RESOLUTION NQ 2007-286 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD CALIFORNIA, APPROVING AMENDMENT NO. 3 TO 3 EIR CONSULTANT SERVICES CONTRACT AGREEMENT WITH COTTON BRIDGES ASSOCIATES FOR THE PREPARATION OF 4 AN ENVIRONMENTAL IMPACT REPORT ON LA COSTA TOWN SQUARE-EIR 01-02 5 WHEREAS, the City of Carlsbad has retained Cotton Bridges Associates for the 6 preparation of an Environmental Impact Report for the La Costa Town Square EIR 01-02; and 7 WHEREAS, the Parties desire to amend the Agreement's scope of work and to 8 increase the fees for the additional work by $63,922.00 for a total Agreement amount of 9 $254,004.00; and 10 WHEREAS, an amendment to the consultant agreement with Cotton Bridges 11 Associates has been prepared and submitted hereto; and12 WHEREAS, funding for the subject amendment is provided by the developer of the La Costa Town Square project, La Costa Town Square LLC. 14 NOW, THEREFORE BE IT RESOLVED, by the City Council of the City of Carlsbad, California, as follows:16 1. That the above recitations are true and correct. 2. That the City Council hereby authorizes the Mayor to approve the attached amendment to the agreement with Cotton Bridges Associates for consultant services. 19 3. That the City Council hereby authorize the Mayor to approve the attached 20 agreement between the City and La Costa Town Square LLC for payment of EIR Consultant. 21 22 23 24 25 26 27 28 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 PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 6th day of November, 2007, by the following vote to wit: AYES: Council Members Lewis, Kulchin, Hall, Packard and Nygaard. NOES: None. ABSENT: None. ATTEST: . iM.WOQDj City Clerk '(SEAL) 0 XS'\ .> O .•**,. HRP *, *"*.-«• s AMENDMENT NO. 3 TO EIR CONSULTANT SERVICES CONTRACT AGREEMENT WITH COTTON BRIDGES ASSOCIATES FOR PREPARATION OF AN ENVIRONMENTAL IMPACT REPORT ON LA COSTA TOWN SQUARE - EIR 01-02 ^n THIS AGREEMENT, made and entered into as of the O — day of 4 2007, by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City," and Cotton Bridges Associates, a Division of P & D Consultants, Inc. hereinafter referred to as "Consultant", shall serve to amend the previous contract dated March 6, 2003, attached hereto. All provisions of the original contract, as amended, shall remain in effect, except the Work Program referenced in Section 1(a) shall be amended to include the additional work outlined in the Consultant's revised proposal, dated July 6, 2007, attached hereto, and the fee payable as referenced in Sections 4 and 5 of the contract shall be increased by $63,922.00 for the additional work, making the maximum fees payable a total of $254,004.00. IN WITNESS WHEREOF we have hereunto set our hands and seals. CONTRACTOR: Cotton Bridges Associates Q. Name of Contractor ) (sign here) k) CITY pal Call ATTEST: (print name/titl By; (sign here) (print name/title) APPROVED AS TO FORM: RONALD R/ BALL, City Attorney / Assistant City Attorney City Attorney Approved Version 03/17/04 '^ CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California .ffljCounty of. »** On AiJ\ /O, 3L007 before me, Nicki Treadway, Notary Public J Date/ Name and Title of Officer (e.g., "Jame Doe, Notary Public") personally appeared WO-f*-* Sprd4u.e I ^J Name(s) of Signer(s) f\* ^[personally known to me NICKIfflEADWAY CommJ1537395HOWRY PUBLIC-CALIFORNIA (I)Orange County - jjy_Coinm. Expires Jan. 20,2009 ^ D (or proved to me on the basis of satisfactory evidence) to be the person(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 authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Place Notary Seal Above Signature OPTIONAL C Signature of 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:To £)R Document Date: A///f CbjVo* Bvidjes- Number of Pages: - KT 5e/t//CgS Co * Signer(s) Other Than Named Above: Signer's Name: D Individual A Capacity(ies) Claimed by Signer(s) Signer's Name: LUdVrtu SprCLjuA. C? Individual , _ . , nvua /• ^ Corporate Officer — Title(s): 1/t'ce rft6iqe*\l ^Corporate Officer — Title(s): |//ce. D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing: Top of thumb here D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here © 2006 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 Item No. 5907 v609 Reorder: Call Toll-Free 1-800-876-6827 I, Gretchen M. Umbeck, the undersigned Secretary of P & D Consultants, Inc., (the "Company") hereby certifies that: the Company is duly organized and existing under the laws of the State of Delaware as a corporation and the following is a true, accurate and complete transcript of a board consent contained in the minute book of the Board of Directors of said Company executed as of the 17th day of August, 2007; is authorized to transact business hereinafter described, and that the consent was in accordance with the charter and by-laws of said Company and that said resolutions have not been amended or revoked and are in full force and effect: RESOLVED, that Michael A. Benner and Warren Sprague, Vice Presidents of the Company, be and are hereby authorized and empowered to sign any and all documents on behalf of said Company, and to take such steps, and do such other acts and things, as in their judgment may be necessary, appropriate or desirable in connection with any contract amendments entered into between the City of Carlsbad, a municipal corporation and Cotton Bridges Associates, a Division of P & D Consultants, Inc. RESOLVED, that any and all transactions by and of the officers of representatives of the Company, in its name and for its account, with California County prior to the adoption of these resolutions be, and they are hereby, ratified and approved for all purposes. Witness my hand and seal of P & D Consultants, Inc. this 17th day of August, 2007. jdretclien M. Umbeck, Secretary (D TCB AECOM P&D Consultants 999 Town & Country Road, 4th Floor, Orange, California 92868 T 714.835.4447 F 714.285.0740 www.tcb.aecom.com JUL 2007 July 6, 2007 Mr. Van W. Lynch Senior Planner City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 RE: Scope of Services Amendment - La Costa Town Center EIR Dear Mr. Lynch: P&D Consultants (P&D) is pleased to provide the City of Carlsbad (City) with this proposed amendment to our existing scope of services for the La Costa Town Square Environmental Impact Report (EIR). The proposed scopes of services amendment has been developed based on recent discussions between P&D and the City, and is detailed in the tasks outlined below. All tasks are necessary to revise the draft EIR based on recent developments of the proposed project and to ensure that the environmental documentation is adequately updated to reflect the most recent regulatory requirements. The scope and costs outlined below assumes that the description of the proposed project has been slightly altered to reflect minor revisions to the proposed project. Task 1: Revision of the traffic section of the EIR with revised traffic technical report P&D understands that a revised traffic technical report has been drafted. P&D shall incorporate the revised traffic technical report, including all relevant tables and figures, into the EIR traffic section. Task 2: Update URBEMIS and CO2 Hot Spot analyses and revision of the air quality section of the EIR based on revised traffic technical report P&D will rerun the URBEMIS model as well as re-model the CO2 Hot Spot analysis for incorporation into the EIR air quality section. The City notified P&D (then CBA) in December 2004 that the project proponent had determined that rock blasting and crushing activities are necessary for construction of the proposed project. The re-run of the URBEMIS air quality model will include these activities and determine the level of significance of these additional construction activities. The results of the revised URBEMIS 2002 air quality model will be integrated into the air quality section of the EIR. In addition, P&D will: review the City's General Plan and San Diego Air Pollution Control District's AQMP for consistency; update ambient air quality data; update and revise, as needed, the existing setting and sensitive receptors; review and update all regulatory data, as needed; and, review established mitigation measures, updating/revising as necessary. Note: Our amendment request assumes that the City/project applicant will provide P&D with the following spatial and temporal information pertinent to rock blasting and crushing activities: the estimated location(s) of both rock blasting and crushing operations on the project site; the estimated amount of material (in tonnage and/or cubic yards) to be blasted and crushed; the estimated location and means of stockpiling the material blasted/crushed Page 2 Mr. Van W. Lynch July 6, 2007 (if proposed); the estimated timing (duration and hour) of the rock blasting and crushing activities on the project site. Task 3: Revision of the noise section of the EIR based on new noise technical report It is assumed that the City will request that the project applicant's noise consultant (Pacific Noise Control) to update/revise the noise technical report based on the revised traffic technical report. Based on our review, it does not appear that the noise technical report included discussion/analysis of potential noise impacts related to rock blasting and crushing activities during project construction. This analysis should be incorporated into the revised noise technical report. P&D will update the noise section of the EIR to incorporate the revised noise technical report. Note: Our amendment request assumes that the City/project applicant shall provide P&D with the revised noise technical report to include a discussion/analysis of rock blasting/crushing activities during project construction. Task 4: Revision of cumulative effects and executive summary based on changes to the traffic technical report, air quality modeling, and noise technical report P&D will revise the Long-Term Environmental Impacts section (cumulative effects) and the Executive Summary of the EIR based on the amended traffic, air quality, and noise analysis (see Tasks 1 through 3 above). Task 5: Update and Review EIR Based on our discussion with the City, P7D understands that existing technical reports, including: paleontological resources, biological resources, hydrology/hydraulics (including an analysis to ensure that requirements from the recent Vineyards case are met), and geotechnical will be updated. P&D will utilize these updates to confirm that the existing information contained in the EIR section is adequate or update the section based on the updated information. In addition, P&D will review and update the remaining sections of the draft EIR to ensure that existing conditions are properly reflected and that all new or revised regulatory requirements are adequately addressed. Task 6: Project Management and Meetings For initial budgeting purposes, we estimate about 44 hours associated with processing the EIR through City staff. This will include our on-going coordination with City staff, responding to questions from staff that may arise during the review process and coordination during revisions and subsequent submittal of the screencheck document. P&D proposes to meet with City staff and/or the applicants consultants on project related matters up to four times during the drafting and processing of the EIR. Each meeting is assumed to be located at the City's offices lasting two hours. Additional meetings can be accommodated by P&D if requested by the City. Any additional meetings beyond those identified above will be invoiced on a time and materials basis. Task 7: Global Warming Analysis P&D will conduct an analysis of the proposed project's potential global warming impacts. In 2006, California passed Assembly Bill 32- Global Warming Solutions Act of 2006 (AB 32). AB 32 is designed to reduce the state's global warming emission to 1990 levels by the year 2020. P&D recommends that the EIR address the issue of global warming. This analysis will include: 1) a general summary of state policy and the state's view of the science addressing global warming; 2) a statement that no universally accepted methodologies yet exist to quantify global warming impacts associated with vehicular emissions, but some attempt will be made to quantify these emissions based on emerging models; TCB AECOM Page 3 Mr. Van W. Lynch July 6, 2007 3) a conclusion that implementation of the proposed project will cause a cumulatively considerable incremental contribution to the significant cumulative (worldwide) impacts; and 4) mitigation measures will be evaluated for feasibility and proposed in the EIR, although the mitigation will likely be insufficient to render the impacts less than significant. Cost Estimate A detailed cost estimate based on individual task is presented in Attachment 1 for the City's review and approval. Please contact me at your earliest convenience if you have any questions regarding our proposed amendment. We look forward to a favorable consideration of this request and seek your immediate authorization to continue our work. Authorization for the amended scope of services may be provided immediately by signing both copies of this letter and returning one copy to P&D. Sincerely,Authorization /arren Sprague Vice President Attachment (1) City of Carlsbad TCB AECOM Attachment 1 Cost Estimate - La Costa Town Center EIR Budget Amendment Hourly Rate: Task 1.0 Revise EIR traffic section with new traffic report 1 .1 Integrate revised (March 2007) traffic report into EIR Total Task 1.0 Task 2.0 Revise EIR air quality section 2.1 Re-run URBEMIS air quality model with rock blasting/crushing and Hot Spot analyses 2.2 Integrate air modeling results into EIR air quality section Total Task 2.0 Task 3.0 Revise EIR noise section 3.1 Integrate revised noise report into EIR Total Task 3.0 Task 4.0 Revise EIR cumulative effects and executive summary 4.1 Update cumulative effects/exec, summary based on new traffic/air/noise Total Task 4.0 Task 5.0: Update and Review EIR 6.1 Review/Update existing Draft EIR Total Task 5.0 Task 6.0: Project Management and Meetings 7.1 Project Meetings (Assumes 4 meetings @ 2 hours each) 7.2 Project Management Total Task 6.0 Task 7.0: Global Warming Analysis 8.1 Analysis of proposed projects global warming impacts Total Task 7.0 TOTAL ALL TASKS Staff Hours $250 $125 $9 Principal- Project Pro in-Charge Manager Plar 2| 12 5 $80 ect Tech./ iner Graph. $80 Word Proc. 24 8] 8 , ,-4s*«>- ,,s***.-'~ 4| 10|30] 4| 4 '-.,$>••. :S*^'; . ..".;,.,, ?,ff'~f 2 10|12| 4| 4 -o^r •;,-" -.'"•••-•• , , .. • 2J 10|16| 4| 4 -' • ' ,-^:" , - ".'-.,r'!vf *•§!*>'•"•' 8| 60 1 ••:-,, «» , 8 8 12 32 120| 8| 8 s " ^""^^y^ * ts '^,/ 0-, s<lK. -**-' *" 2| 10| 40 1 152| 36| 4| 4 238 1 32 32 Labor Cost $7,482 $7,482 "-'**& $5,270 $5,740 $11,010 ii^ifttj\,' $3,530 $3,530 $3,910 $3,910 .,., $22,180 $22,180 $3,000 $7,000 $10,000 $5,810 $5,810 $63,922 TCB AEG ^ AMENDMENT NO. 2 TO EIR CONSULTANT SERVICES CONTRACT AGREEMENT WITH COTTON BRIDGES ASSOCIATES FOR PREPARATION OF AN ENVIRONMENTAL IMPACT REPORT ON LA COSTA TOWN SQUARE - EIR 01-02 THIS AGREEMENT, made and entered into as of the day of 2005, by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City," and Cotton Bridges Associates, a Division of P & D Consultants, Inc. hereinafter referred to as "Consultant", shall serve to amend the previous contract dated March 6, 2003, attached hereto. All provisions of the original contract, as amended, shall remain in effect, except the Work Program referenced in Section 1(a) shall be amended to include the additional work outlined in the Consultant's revised proposal, dated April 8, 2005, attached hereto, and the fee payable as referenced in Sections 4 and 5 of the contract shall be increased by $9,960.00 for the additional work, making the maximum fees payable a total of $190,082.00. IN WITNESS WHEREOF we have hereunto set our hands and seals. CONTRACTOR: Cotton Bridges Associates CITY OF CARLSBAD, a munici- pal corporation of the State of lifornia City Maager^r Mayor ATTEST: (print name/title Bv: (sign hen (print'name/title) APPROVED AS TO FORM: RONALD R. BALL,jCity Attorney By: Sr. Mire, rces>.— City Attorney Approved Version 03/17/04 \\ AMENDMENT NO. 1 TO EIR CONSULTANT SERVICES CONTRACT AGREEMENT WITH COTTON BRIDGES ASSOCIATES FOR PREPARATION OF AN ENVIRONMENTAL IMPACT REPORT ON LA COSTA TOWN SQUARE EIR 01 -02 THIS AGREEMENT, made and entered into as of the day of . 2005, by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City," and Cotton Bridges Associates, a Division of P & D Consultants, Inc. hereinafter referred to as "Consultant", shall serve to amend the previous contract dated March 6, 2003, attached hereto. All provisions of the original contract shall remain in effect, except that as QfTlanuary 24, 2005 ^> outlined in the Consultant's revised proposal, dated Ternary ?4 unqa attafthari hereto, the Work Program referenced in Section 1 (a) shall be amended to include the additional work outlined therein, and the fee payable as referenced in Sections 4 and 5 of the contract shall be increased by $24,657.00 for the additional work, making the maximum fees payable a total of $180,122.00. IN WITNESS WHEREOF we have hereunto set our hands and seals. CONTRACTOR: Cotton Bridges Associates Name of Contractor By: CITY OF CARLSBAD, a munici- pal corporation of the S$pte_ of Californis City MagiageMJi Mayui " ATTEST: (print name/title Bv: , City Clerk (sign heJJO A 5r Sec. (prftt name/title) ' APPROVED AS TO FORM: RONALD R. BALL, City Attorney By: City Attorney Approved Version 03/17/04 AGREEMENT WITH COTTON BRIDGES ASSOCIATES FOR THE PREPARATION OF AN ENVIRONMENTAL IMPACT REPORT (EIR 01-02) THIS AGREEMENT, made this bn day of ftfiteH . 20&3. between the CITY OF CARLSBAD, a municipal corporation of the State of California, hereinafter referred to as "CITY", and Cotton Bridges Associates, a Division of P & D Consultants, Inc. hereinafter referred to as "CONTRACTOR". RECITALS WHEREAS, the CITY has entered into an agreement with La Costa Town Square LLC. hereinafter called applicant, wherein the CITY agrees to prepare an Environmental Impact Report (EIR) for the proposed project identified as La Costa Town Square (CT 01-09 et.al) which is located on the northeast corner of Rancho Santa Fe Road and La Costa Avenue and more precisely shown on the plat marked Attachment 1, attached hereto and made a part hereof; and WHEREAS, the CONTRACTOR has the qualifications to prepare the required Environmental Impact Report; and WHEREAS, it is understood that the CONTRACTOR shall be an independent contractor of the CITY; NOW, THEREFORE, in consideration of their mutual covenants and conditions, the parties hereto agree as follows: 1. CONTRACTOR OBLIGATIONS CONTRACTOR shall prepare an Environmental Impact Report on the subject project in accord with the California Environmental Quality Act as implemented by the State Guidelines and by CITY in Title 19 of the Carlsbad Municipal Code and its 1 Rev. 08-08-97 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 Environmental Impact Report at all public hearings before the Planning Commission and the City Council prior to the certification of the report; (4) make all reports necessary to comply with the requirements of this section. Before preparing the draft report, the CONTRACTOR shall submit five copies of a preliminary report (screen check EIR) to the Planning Director for staff review. The CONTRACTOR shall revise the preliminary report as requested by staff in order to make it suitable for draft EIR review. (b) CONTRACTOR shall prepare a draft report in compliance with the Work Program contained in Attachment 2 on file at the Planning Department (unless otherwise stated in this agreement), attached hereto and made a part hereof and with applicable state law and CITY ordinances. The CONTRACTOR shall submit to CITY fifty copies plus a reproducible master of the draft Environmental Impact Report to the CITY. (c) CONTRACTOR shall attempt to determine as soon as possible in the study of the area involved, those factors which could severely inhibit or prohibit the proposed project. If it appears that such factors are present, CONTRACTOR shall so inform the Planning Director who in turn will discuss with the applicant the feasibility of continuing with the report. The objective of this subsection of the agreement is to minimize the cost if these adverse factors exist. 2 Rev. 08-08-97 (d) CONTRACTOR shall prepare and file with the CITY written responses to all comments received subsequent to public notice that the draft Environmental Impact Report has been filed. CONTRACTOR shall also prepare any response necessary to matters raised at the public hearings. The written responses shall be prepared in a form that will permit the responses to be incorporated into the final Environmental Impact Report. 2. CITY OBLIGATIONS (a) The CITY will make payment to the CONTRACTOR as provided for in this agreement. (b) The CITY will make available to the CONTRACTOR any documents, studies, or other information in its possession related to the proposed project. (c) The CITY will review the Preliminary Report presented by the CONTRACTOR within fourteen working days of their receipt and make written comments to the CONTRACTOR within that time period. (d) The CITY shall provide the CONTRACTOR with copies of all written comments received on the draft Environmental Impact Report subsequent to public notice that the draft Environmental Impact Report has been filed and is available for public review. 3. TIME OF COMPLETION Time is of the essence in carrying out the terms of this agreement. It is understood that inclement weather conditions may delay the completion of field work. The CONTRACTOR will be allowed as many additional days as are necessary to compensate for days lost due to inclement weather. The CONTRACTOR shall submit to the CITY five copies of the Preliminary Environmental Impact Report within six weeks 3 Rev. 08-08-97 of the signing of this agreement by both concerned parties. The CONTRACTOR shall submit to the CITY fifty copies of the draft Environmental Impact Report within ten working days of the completed staff review of the Preliminary Environmental Impact Report. 4. PAYMENT The CONTRACTOR will be paid a maximum of One Hundred Fifty-five Thousand Four Hundred sixty-five dollars ($ 155,465) 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 monthly invoices based on the percentages of the tasks completed according to Attachment 3. 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 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 One Hundred Fifty-five thousand Four Hundred sixty-five dollars ($ 155,465) which amount is estimated to be sufficient to compensate the CONTRACTOR for all services performed hereunder during the terms of this agreement. In the event at any time it appears to the CONTRACTOR that said sum may not be sufficient, he shall immediately so notify the Planning Director. He will not perform any work or incur any obligation beyond said sum of One Hundred Fifty-five Thousand Four Hundred sixty- five dollars ($ 155,465) without appropriate amendment to this agreement. 4 Rev. 08-08-97 6. CHANGES IN WORK If, in the course of this contract, changes seem merited by the CONTRACTOR or the CITY and informal consultations indicate that a change in the conditions of the contract is warranted, the CONTRACTOR or the CITY may request a change in the contract. Such changes shall be processed by the CITY in the following manner. A letter outlining the required changes shall be forwarded to the CITY or CONTRACTOR to inform them of the proposed changes along with a statement of estimated changes in charges or time schedule. After reaching mutual agreement on the proposal, a supplemental agreement shall be prepared by the CITY and approved by the CITY according to the procedures described in Carlsbad Municipal Code Section 3.28.172. Such supplemental agreement shall not render ineffective or invalid unaffected portions of the agreement. Changes requiring immediate action by the CONTRACTOR or the CITY shall be ordered by the Planning Director who will inform a principal of the 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 pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting 5 Rev. 08-08-97 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 CONTRACTOR or the CITY Planning Director. A copy of such documented dispute / shall be forwarded to both parties involved along with recommended methods of 6 Rev. 08-08-97 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 act as a contractor on any public work or improvement for a period of up to five (5) years. The CONTRACTOR acknowledges debarment by another jurisdiction is 7 Rev. 08-08-97 grounds for theCity of Carlsbad to disqualify the CONTRACTOR from the selection processlyy/ (Initial) The provisions of Carlsbad Municipal Code Sections 3.32.025, 3.32.026, 3.32.02and 3.32.08 pertaining to false claims are incorporated herein by reference. (Initial) 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 with holdings 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, overtime payment, or workers' compensation payment which the CITY may be required to make on behalf of the CONTRACTOR or any employee of the CONTRACTOR for 8 Rev. 08-08-97 work done under this agreement. The CONTRACTOR shall be aware of the requirements of the Immigration Reform and Control Act of 1986 and shall comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and CONTRACTORS that are included in this agreement. 13. OWNERSHIP OF DOCUMENTS All documents and materials prepared pursuant to this agreement are the property of the CITY. The CITY shall have the unrestricted authority to publish, disclose, distribute and otherwise use, in whole or in part, any reports, data, or other materials prepared under this agreement. 14. REPRODUCTION RIGHTS The CONTRACTOR agrees that all copyrights which arise from creation of the work pursuant to this contract shall be vested in CITY and hereby agrees to relinquish all claims to such copyrights in favor of CITY. 15. RELEASE OF INFORMATION BY CONTRACTOR Any reports, information or other data, prepared or assembled by the CONTRACTOR under this agreement shall not be made available to any individual or organization by the CONTRACTOR without prior written approval of the CITY. 16. HOLD HARMLESS AGREEMENT CONTRACTOR agrees to indemnify and hold harmless the City of Carlsbad and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorney fees arising out of the performance of the work described herein caused in whole or in part by any willful misconduct or negligent act or omission of the CONTRACTOR, any subcontractor, anyone directly or indirectly 9 Rev. 08-08-97 employed by any of them or anyone for whose acts any of them may be liable, except where caused by the active negligence, sole negligence, or willful misconduct of the City of Carlsbad. CONTRACTOR shall at its own expense, upon written request by the City, defend any such suit or action brought against the City, its officers, officials, employees and volunteers. 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 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 10 Rev. 08-08-97 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. 23. CONFLICT OF INTEREST The CONTRACTOR shall file a Conflict of Interest Statement with the City Clerk 11 Rev. 08-08-97 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 and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-V" and shall meet the City's policy for insurance as stated in Resolution No. 91-403. A. 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 bodily injury and property damage. 3. Workers' Compensation and Employer's Liability. Workers' 12 Rev. 08-08-97 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. 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 13 Rev. 08-08-97 with the foregoing are as follows: For City:Title: Name: Planning Director Michael J. Holzmiller Address: 1635 Faraday Avenue Carlsbad CA 92008 For Contractor:Title: Name: Project Manager Tim Gnibus N/A N/A Address: 8954 Rio San Diego Drive. Suite 610 San Diego CA 92108 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 discharges 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 Executed by CONTRACTOR this day of CONTRACTOR: Cotton Bridges Associates, A Division of P & D Consultants, Inc. (Name of Contractor) By: l\A (sign hefc) (print name/title) By: (sign Here) ' CITY OF CARLSBAD, a municipal corporation of the State of California ATTEST: OXRRAINE M. WOO0f City Clerk ^(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 officers) 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 By: 15 Rev. 08-08-97 STATE OF-CALirORNIA COUNTY OF SAN DIEGO 3 before me, Notary Public, personally appeared [ ] personally known to me - or [ ] proved to me on the basis of satisfactory evidence to be the person(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 authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal.NOTARY PUBLICSTATE OF NEVADA HAMMOND No 99-5394-1 *"*••» SfllBt. 13.2003 /Signature of Notary) THIRD AMENDED AGREEMENT BETWEEN CITY AND LA COSTA TOWN SQUARE, LLC FOR PAYMENT OF EIR CONSULTANT o day ofTHIS AGREEMENT, made and entered into as of the . 2007, by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City," and La Costa Town Square, LLC hereinafter referred to as "APPLICANT", shall serve to amend the previous contract dated, March 6, 2003 attached hereto. All provisions of the original contract, as amended, shall remain in effect, except the Work Program referenced in Section 2 shall be amended to include the additional work outlined in the Consultant's revised proposal, dated July 6, attached hereto, and the fee payable by Applicant as referenced in Sections 4 of the contract shall be increased by $63,922.00 for the additional work, making the maximum fees payable a total of $254,004.00. IN WITNESS WHEREOF we have hereunto set our hands and seals. APPLICANT: La Costa Town Square, LLC CITY OIECARLSBAD, a municipal te of California Name of Applicant Bv: (sigjh here) (print name/title Byj /LORRAI N^M/WOO^ity cierk^ ' »NS < (sign here) (print name/title) APPROVED AS TO FORM: RONALD R. BAJ_L, City Attorney By: Assistant City Attorney City Attorney Approved Version 03/17/04 LITHO USA SfMSSKY 103/941 08/07 Y07Sf004951M (F101) Invoice No. Inv. Date 07/06/07 'v- 07/06/07 Amount 63,922.00 63,922/00 TOTAL 63,922.00 CHECK DATE: 09/11/07 Discount Description 0.00 Prop 610. Q.OO La Costa Town Square CHECK NO. : 159489 Voucher No. Net Amount 33112 63,922.00 63,922.00 City of Carlsbad Faraday Center Faraday Cashiering 001 0725601-3 09/13/2007 32 Thu Sep13,2007 01:10 PM Name: SPECTRUM PROPERTY MGMT MISC - MISC FINANCIAL $63,922.00 Tran Nbr: 072560103 0006 0006 1 ITEM(S): TOTAL: Check (Chk# 159489) Total Received: Have a nice day! $63,922.00 $63,922.00 $63,922.00 **************CUSTQMER P&D Consultants 999 Town & Country Road, 4th Floor, Orange, California 92868 T 714.835.4447 F 714.285.0740 www.tcb.aecom.com July 6, 2007 TCB AECOM Mr. Van W. Lynch Senior Planner City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 RE: Scope of Services Amendment - La Costa Town Center EIR Dear Mr. Lynch; P&D Consultants (P&D) is pleased to provide the City of Carlsbad (City) with this proposed amendment to our existing scope of services for the La Costa Town Square Environmental Impact Report (EIR). The proposed scopes of services amendment has been developed based on recent discussions between P&D and the City, and is detailed in the tasks outlined below. All tasks are necessary to revise the draft EIR based on recent developments of the proposed project and to ensure that the environmental documentation is adequately updated to reflect the most recent regulatory requirements. The scope and costs outlined below assumes that the description of the proposed project has been slightly altered to reflect minor revisions to the proposed project. Task 1: Revision of the traffic section of the EIR with revised traffic technical report P&D understands that a revised traffic technical report has been drafted. P&D shall incorporate the revised traffic technical report, including all relevant tables and figures, into the EIR traffic section. Task 2: Update URBEMIS and CO2 Hot Spot analyses and revision of the air quality section of the EIR based on revised traffic technical report P&D will rerun the URBEMIS model as well as re-model the CO2 Hot Spot analysis for incorporation into the EIR air quality section. The City notified P&D (then CBA) in December 2004 that the project proponent had determined that rock blasting and crushing activities are necessary for construction of the proposed project. The re-run of the URBEMIS air quality model will include these activities and determine the level of significance of these additional construction activities. The results of the revised URBEMIS 2002 air quality model will be integrated into the air quality section of the EIR. In addition, P&D will: review the City's General Plan and San Diego Air Pollution Control District's AQMP for consistency; update ambient air quality data; update and revise, as needed, the existing setting and sensitive receptors; review and update all regulatory data, as needed; and, review established mitigation measures, updating/revising as necessary. Note: Our amendment request assumes that the City/project applicant will provide P&D with the following spatial and temporal information pertinent to rock blasting and crushing activities: the estimated location(s) of both rock blasting and crushing operations on the project site; the estimated amount of material (in tonnage and/or cubic yards) to be blasted and crushed; the estimated location and means of stockpiling the material blasted/crushed Page 2 Mr. Van W. Lynch July 6, 2007 (if proposed); the estimated timing (duration and hour) of the rock blasting and crushing activities on the project site. Task 3: Revision of the noise section of the EIR based on new noise technical report It is assumed that the City will request that the project applicant's noise consultant (Pacific Noise Control) to update/revise the noise technical report based on the revised traffic technical report. Based on our review, it does not appear that the noise technical report included discussion/analysis of potential noise impacts related to rock blasting and crushing activities during project construction. This analysis should be incorporated into the revised noise technical report. P&D will update the noise section of the EIR to incorporate the revised noise technical report. Note: Our amendment request assumes that the City/project applicant shall provide P&D with the revised noise technical report to include a discussion/analysis of rock blasting/crushing activities during project construction. Task 4: Revision of cumulative effects and executive summary based on changes to the traffic technical report, air quality modeling, and noise technical report P&D will revise the Long-Term Environmental Impacts section (cumulative effects) and the Executive Summary of the EIR based on the amended traffic, air quality, and noise analysis (see Tasks 1 through 3 above). Task 5: Update and Review EIR Based on our discussion with the City, P7D understands that existing technical reports, including: paleontological resources, biological resources, hydrology/hydraulics (including an analysis to ensure that requirements from the recent Vineyards case are met), and geotechnical will be updated. P&D will utilize these updates to confirm that the existing information contained in the EIR section is adequate or update the section based on the updated information. In addition, P&D will review and update the remaining sections of the draft EIR to ensure that existing conditions are properly reflected and that all new or revised regulatory requirements are adequately addressed. Task 6: Project Management and Meetings For initial budgeting purposes, we estimate about 44 hours associated with processing the EIR through City staff. This will include our on-going coordination with City staff, responding to questions from staff that may arise during the review process and coordination during revisions and subsequent submittal of the screencheck document. P&D proposes to meet with City staff and/or the applicants consultants on project related matters up to four times during the drafting and processing of the EIR. Each meeting is assumed to be located at the City's offices lasting two hours. Additional meetings can be accommodated by P&D if requested by the City. Any additional meetings beyond those identified above will be invoiced on a time and materials basis. Task 7: Global Warming Analysis P&D will conduct an analysis of the proposed project's potential global warming impacts. In 2006, California passed Assembly Bill 32- Global Warming Solutions Act of 2006 (AB 32). AB 32 is designed to reduce the state's global warming emission to 1990 levels by the year 2020. P&D recommends that the EIR address the issue of global warming. This analysis will include: 1) a general summary of state policy and the state's view of the science addressing global warming; 2) a statement that no universally accepted methodologies yet exist to quantify global warming impacts associated with vehicular emissions, but some attempt will be made to quantify these emissions based on emerging models; TCB AECO Page 3 Mr. Van W. Lynch July 6, 2007 3) a conclusion that implementation of the proposed project will cause a cumulatively considerable incremental contribution to the significant cumulative (worldwide) impacts; and 4) mitigation measures will be evaluated for feasibility and proposed in the EIR, although the mitigation will likely be insufficient to render the impacts less than significant. Cost Estimate A detailed cost estimate based on individual task is presented in Attachment 1 for the City's review and approval. Please contact me at your earliest convenience if you have any questions regarding our proposed amendment. We look forward to a favorable consideration of this request and seek your immediate authorization to continue our work. Authorization for the amended scope of services may be provided immediately by signing both copies of this letter and returning one copy to P&D. Sincerely, Authorization /arren Sprague Vice President City of Carlsbad Attachment (1) TCB AECOM Attachment 1 Cost Estimate - La Costa Town Center EIR Budget Amendment Hourly Rate: Staff Hours Task 1.0 Revise EIR traffic section with new traffic report 1.1 Integrate revised (March 2007) traffic report into EIR Total Task 1.0 Task 2.0 Revise EIR air quality section 2.1 Re-run URBEMIS air quality model with rock blasting/crushing and Hot Spot analyses 2.2 Integrate air modeling results into EIR air quality section Total Task 2.0 Task 3.0 Revise EIR noise section 3.1 Integrate revised noise report into EIR 2] 10]4| 4 $3.530 Total Task 3.0 $3,530 Task 4.0 Revise EIR cumulative effects and executive summary 4.1 Update cumulative effects/exec, summary based on new traffic/air/noise J6J_$3.910 Total Task 4.0 $3,910 Task 5.0: Update and Review EIR 6.1 Review/Update existing Draft EIR 8| 60| 120| 8 $22.180 Total Task 5.0 $22.180 Task 6.0: Project Management and Meetings 7.1 Project Meetings (Assumes 4 meetings @ 2 hours each)$3.000 7.2 Project Management 12 32 $7.000 Total Task 6.0 $10.000 Task 7.0: Global Warming Analysis -. 8.1 Analysis of proposed projects global warming impacts 2\ 10]36| 4]$5,810 Total Task 7.0 $5,810 TOTAL ALL TASKS 401 152| 2381 321 32 $63,922 «*,"- TCB AECOM SECOND AMENDED AGREEMENT BETWEEN CITY AND LA COSTA TOWN SQUARE, LLC FOR PAYMENT OF EIR CONSULTANT THIS AGREEMENT, made and entered into as of the day of _, 2005, by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City," and La Costa Town Square, LLC hereinafter referred to as "APPLICANT", shall serve to amend the previous contract dated, March 6, 2003 attached hereto. All provisions of the original contract, as amended, shall remain in effect, except the Work Program referenced in Section 2 shall be amended to include the additional work outlined in the Consultant's revised proposal, dated April 8, 2005, attached hereto, and the fee payable by Applicant as referenced in Sections 4 of the contract shall be increased by $9,960.00 for the additional work, making the maximum fees payable a total of $190,082.00. IN WITNESS WHEREOF we have hereunto set our hands and seals. APPLICANT: La Costa Town Square, LLC CITY OF CARLSBAD, a municipal corporation of the State of California t-t~c- Name of Applicant Bv: Of ]^. City Maffigercr Mayor«- ATTEST: (print name/title Bv; (sign here) (print name/title) APPROVED AS TO FORM: RONALD R. BALL, City Attorney sistant City Attorney City Attorney Approved Version 03/17/04 AMENDMENT NO. 1 AMENDED AGREEMENT BETWEEN CITY AND LA COSTA TOWN SQUARE, LLC FOR PAYMENT OF EIR CONSULTANT THIS AGREEMENT, made and entered into as of the day of . 2005, by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City," and La Costa Town Square, LLC hereinafter referred to as "APPLICANT1, shall serve to amend the previous contract dated, March 6, 2003 attached hereto. All provisions of the original contract shall remain in effect, except that as outlined in the Consultant's revised proposal, tasks 1 through 5, dated January 24, 2005, attached hereto, the Work Program referenced in Section 2 shall be amended to include the additional work outlined therein, and the fee payable by Applicant as referenced in Sections 4 of the contract shall be increased by $24,657.00 for the additional work, making the maximum fees payable a total of $180,122.00. IN WITNESS WHEREOF we have hereunto set our hands and seals. APPLICANT: La Costa Town Square, LLC CITY OF CARLSBAD, a municipal corporation of the State of California LA U.C. Name of Applicant Bv: (sign^iere) City Managers Mayor ATTEST: (print name/title By: LORRAINE M. WOOD, City CKfrk (sign here) (print name/title) APPROVED AS TO FORM: RONALD R. BALL, City Attorney /A 7 Assistant City Attorney City Attorney Approved Version 03/17/04 AGREEMENT BETWEEN CITY AND APPLICANT FOR PAYMENT OF EIR CONSULTANT THIS AGREEMENT is made this ^^ day of ffl/ftZ&tf .20^3. between the CITY OF CARLSBAD, a municipal corporation of the State of California, hereinafter referred to as CITY, and La Costa Town Square LLC. hereinafter referred to as "APPLICANT". RECITALS WHEREAS, the APPLICANT has filed with the CITY a request for approval of a proposed project identified as La Costa Town Square requiring an Environmental Impact Report; and WHEREAS, CITY has determined that its current staff is inadequate in number to process the Environmental Impact Report in a timely and thorough manner; and WHEREAS, APPLICANT in order to ensure the expeditious processing of said Environmental Impact Report desires to pay to CITY the amount necessary to hire a CONSULTANT. NOW, THEREFORE, in consideration of the covenants and conditions, it is agreed as follows: 1. The CITY will engage the firm of Cotton Bridges Associates hereinafter referred to as "CONTRACTOR" to perform the necessary work in the processing and monitoring of the Environmental Impact Report for that area more particularly depicted upon a site map attached as Attachment 1 and made a part of this agreement. 2. It is understood that the CONTRACTOR services shall conform to 1 Rev. 07/31/00 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 staff; c) Written reports; and d) Such other work necessary to properly evaluate the proposed project as directed by the Planning Director. 3. It is understood that the CITY will direct the CONTRACTOR to complete a draft and final Environmental Impact Report at the earliest feasible time. The CITY will advise the APPLICANT in writing of any impacts which may render the proposed project infeasible within a reasonable time after CITY has received the CONTRACTOR's conclusions in writing. 4. The APPLICANT shall pay to the CITY the actual cost of the CONTRACTOR 's services. Such cost shall be based on the costs set forth in Attachment 3. The APPLICANT has advanced the sum of One Hundred Fifty-five thousand Four Hundred sixty-five dollars ($ 155,465) 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 will notify the APPLICANT of the difference between the amount deposited and the new estimated cost. CITY will ensure, to the extent feasible, that no further work will be performed by the CONTRACTOR incurring an obligation beyond the amount advanced without an appropriate amendment to this Agreement. If the actual cost of preparing the report is less than the APPLICANT'S advance, any surplus will be refunded to APPLICANT by CITY. 2 Rev. 07/31/00 5. It is understood that the CONTRACTOR shall be an independent contractor of the CITY and CITY shall not be liable for any negligent acts or omissions of the CONTRACTOR. The APPLICANT agrees to permit the CONTRACTOR to enter upon his property and to perform all work thereon as the CONTRACTOR deems necessary to complete the Environmental Impact Report. It is agreed that the APPLICANT will not interfere with the CONTRACTOR in the performance of such work or attempt to influence such CONTRACTOR during the course of his investigation and report. 6. It is understood that the CITY will attempt to bring the Environmental Impact Report to Planning Commission and City Council as soon as possible, barring no delays from the APPLICANT. 7. The City shall not be required to defend any third party claims and suits challenging any action taken by the City with regard to any procedure or substantive aspect of the City's environmental process and approval of development of the property. If the City, in its sole and absolute discretion defends such action or proceeding, the Applicant shall be responsible and reimburse the City for whatever legal fees and costs, in their entirely, may be incurred by the City in defense of such action or proceeding. The City shall have the absolute right to retain such legal counsel as the City deems necessary and appropriate. Applicant shall reimburse the City for any award of court costs or attorney fees made against City in favor of any third party challenging either the sufficiency of a negative declaration or EIR or the validity of the City's approval of the application. This obligation survives until all legal proceedings have been concluded and continues even if the City's approval is not validated. 3 Rev. 07/31/00 IN WITNESS WHEREOF, the parties hereto have executed this agreement on the day and year first above written. Executed by APPLICANT this 3g.o day of F£f3<g.L>fa*xy . 20 o3. APPLICANT: CITY OF CARLSBAD, a municipal La Costa Town Square LLC. corporation of the State of California By: (Name of Applicant) Cityldaaagargrlvlayor By: (sigqTfere) °~~^ ATTEST: ~ s'l si s'l .1 _. iLfyQtdf (print name here/title) - R«* Sis^^ORRAINE M. WOOD/City Clerk *£(sign here) (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 officers) signing to bind the corporation.) (If signed by an individual partner, the partnership must attach a statement of partnership authorizing the partner to execute tf?/s instrument). APPROVED AS TO FORM: RONALD R. BALL, City Attorney Bv: Deooly City Attorney Rev. 07/31/00 STATE OF CALIFORNIA COUNTY OF SAN DIEGO On VfbniaKi £ £t$?\ before me, A/ I I V y Notary Public, personally appeared \~Tol )n T~u~r\fne>&4~ > M personally known to me - or [ ] proved to me on the basis of satisfactory evidence to be the person^ whose name^Qs^are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(4es), and that by his/ho^thoir signature^ on the instrument the person(X), or the entity upon behalf of which the person^j acted, executed the instrument. N. RUDOLPH . m__ ,,,«..,, *«• v—aa Commission #1310651WITNESS my hand and official seal. | feaffia\ Notary Public - California San Diego County My Comm. Expires Jun 26.2005 (SgnatureofNo