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Home My WebLink About2014-10-21; City Council; 21765; Approve Reimbursement Agreements Traffic Signals La Costa Avenue, Levante StreetCITY OF CARLSBAD - AGENDA BILL 21,765 APPROVING REIMBURSEMENT AGREEMENTS FOR THE CONSTRUCTION OF TRAFFIC SIGNALS AT THE INTERSECTION OF LA COSTA AVENUE AND LEVANTE STREET, AND ATTHE INTERSECTION OF LA COSTA AVENUE AND CAMINO DE LOS COCHES; AND THE CONSTRUCTION OF PLDA FACILITY, STORM DRAIN DQB, AND APPROPRIATION OF $182,165; AND APPROVING A STREET TREE MAINTENANCE AGREEMENT FOR LA COSTA TOWN SQUARE COMMERCIAL, PROJECT NO. a 01-09 DEPT. DIREaOR 10/21/14 APPROVING REIMBURSEMENT AGREEMENTS FOR THE CONSTRUCTION OF TRAFFIC SIGNALS AT THE INTERSECTION OF LA COSTA AVENUE AND LEVANTE STREET, AND ATTHE INTERSECTION OF LA COSTA AVENUE AND CAMINO DE LOS COCHES; AND THE CONSTRUCTION OF PLDA FACILITY, STORM DRAIN DQB, AND APPROPRIATION OF $182,165; AND APPROVING A STREET TREE MAINTENANCE AGREEMENT FOR LA COSTA TOWN SQUARE COMMERCIAL, PROJECT NO. a 01-09 CITY ATTORNEY DEPT. CED APPROVING REIMBURSEMENT AGREEMENTS FOR THE CONSTRUCTION OF TRAFFIC SIGNALS AT THE INTERSECTION OF LA COSTA AVENUE AND LEVANTE STREET, AND ATTHE INTERSECTION OF LA COSTA AVENUE AND CAMINO DE LOS COCHES; AND THE CONSTRUCTION OF PLDA FACILITY, STORM DRAIN DQB, AND APPROPRIATION OF $182,165; AND APPROVING A STREET TREE MAINTENANCE AGREEMENT FOR LA COSTA TOWN SQUARE COMMERCIAL, PROJECT NO. a 01-09 CITY MANAGER ^ RECOMMENDED ACTION: Adopt Resolution No. 2014-245 approving a reimbursement agreement with Property Development Centers, LLC, a Delaware limited liability company (developer) forthe construction ofa traffic signal at the intersection of La Costa Avenue and Levante Street; adopt Resolution No. 2014-246 approving a reimbursement agreement with developer for the construction of a traffic signal at the intersection of La Costa Avenue and Camino de Los Coches; adopt Resolution No. 2014-247 approving a reimbursement agreement with developer for the construction of Planned Local Drainage Area (PLDA) facility, storm drain DQB and appropriation of $182,165 from the Planned Local Drainage Area D Fund; and adopt Resolution No. 2014-248 approving a street tree maintenance agreement with developer for La Costa Town Square Commercial, Project No. CT 01-09 (project) generally located at northeast corner of La Costa Avenue and Rancho Santa Fe Road. ITEM EXPLANATION: The Planning Commission approved Resolution No. 6581 on July 15, 2009 which recommended approval of the project. City Council adopted Resolution No. 2009-232 on September 15, 2009 approving the project. Conditions 45 and 50 of the Planning Commission resolution state that the developer shall construct and install new fully actuated traffic signals including all appurtenances and traffic signal interconnect conduits and cables at the intersections of La Costa Avenue and Camino de Los Coches, and La Costa Avenue and Levante Street. The conditions further state that developer may be eligible for partial reimbursement from the city's Gas Tax Fund and reimbursement agreements must be approved by the City Council prior to the final map recordation. Pursuant to Condition No. 45 of Planning Commission Resolution No. 6581, the developer has prepared and processed improvement plans DWG 409-4F, executed a Traffic Signal Development DEPARTMENT CONTACT: Tecla Levy 760-602-2733 tecla.levv(5)carlsbadca.gov FOR CITY CLERKS USE ONLY COUNCIL ACTION: APPROVED CONTINUED TO DATE SPECIFIC • DENIED CONTINUED TO DATE UNKNOWN • CONTINUED • RETURNED TO STAFF • WITHDRAWN • OTHER-SEE MINUTES • AMENDED • Page 2 Improvement Agreement to install and has posted security in accordance with C.M.C. section 20.16.070 for the construction of a traffic signal at the intersection of La Costa Avenue and Levante Street. The city's cost estimate for the traffic signal is $210,000. The project's fair share contribution for the construction of the improvements is 79.6 percent of the actual cost as determined from the Project's Traffic Impact Analysis, Appendix B of La Costa Town Square Environmental Impact Report, EIR 01-02, dated August 2009, and Caltrans Method for Calculating Equitable Mitigation Measures for traffic impact. The developer is eligible for reimbursement of 20.4 percent ofthe actual cost, not to exceed $42,480, which is 20.4 percent ofthe city's cost estimate forthe improvement. Pursuant to condition 50 of Planning Commission Resolution No. 6581, the developer has prepared and processed improvement plans DWG 475-2C executed a Traffic Signal Development Improvement Agreement to install and has posted security in accordance with C.M.C. section 20.16.070 for the construction of a traffic signal at the intersection of La Costa Avenue and Camino de Los Coches. The city's cost estimate for the traffic signal is $190,000. The project's fair share contribution for the construction ofthe improvements is 61.5 percent ofthe actual cost as determined from the Project's Traffic Impact Analysis, Appendix B of La Costa Town Square Environmental Impact Report, EIR 01-02, dated August 2009, and Caltrans Method for Calculating Equitable Mitigation Measures for traffic impact. The developer is eligible for reimbursement of 38.5 percent ofthe actual cost, not to exceed $73,150, which is 38.5 percent ofthe city's cost estimate forthe improvement. PLDA Facility, Storm Drain DQB, as contained in the 2008 Drainage Master Plan, crosses the project site. City proposed to construct Storm Drain DQB in the future. Owner wishes to construct the storm drain DQB now to facilitate the project. The project revised the alignment of Storm Drain DBQ as shown on city approved drawing, DWG 409-4C. The developer has requested to enter into a reimbursement agreement pursuant to City of Carlsbad Municipal Code section 15.08.080. The developer has requested reimbursement for $182,165 as detailed in the cost estimate prepared by the developer. Pursuant to Condition No. 15 of Planning Commission Resolution No. 6581, the property owner, has executed a Street Tree Maintenance Agreement for the project. This Agreement addresses the maintenance of street trees in the public right-of-way along Rancho Santa Fe Road and La Costa Avenue at the project frontage. It is anticipated that the obligation to maintain street trees will be transferred to the Home Owners Association (HOA) for this project. Based on staff review, this agreement satisfies Condition No. 15 of Planning Commission Resolution No. 6581, therefore, staff recommends approval ofthis agreement. ENVIRONMENTAL IMPACT: The approval of these agreements is considered to be a ministerial project and is exempt from the requirements of CEQA pursuant to Carlsbad Municipal Code Section 19.04.070 A.l.a. FISCAL IMPACT: The traffic signal at La Costa Avenue and Levante is included in the city's Fiscal Year 2014-15 Capital Improvement Program and is funded by the Gas Tax Fund in the amount of $210,000. The developer will be responsible for 61.5 percent ofthe actual cost. The city will only pay 20.4 percent ofthe actual cost. Approval of the reimbursement agreement may save city up to approximately $167,160, which is 79.6 percent ofthe city's cost estimate forthis improvement. t Page 3 The traffic signal at La Costa Avenue and Camino de Los Coches is included in the city's Fiscal Year 2014-15 Capital Improvement Program and is funded by the Gas Tax Fund in the amount of $190,000. The developer will be responsible for 61.5 percent of the actual cost. The city will pay only 38.5 percent of the actual cost. Approval of the reimbursement agreement may save city up to approximately $116,850, which is 61.5 percent ofthe city's cost estimate for this improvement. The City's cost estimate for the design and construction of PLDA facility. Storm Drain DQB, as contained in the 2008 City Drainage Master Plan is $745,842. The developer has requested reimbursement for $182,165 as detailed in the cost estimate prepared by the developer. The approval of the reimbursement agreement for the construction of storm drain DBQ may save the city up to $563,677. The funding for this drainage project was not due to be appropriated through the Capital Improvement Program for several more years. Since the developer is requesting to build the improvement now staff is requesting an appropriation to be approved in the amount of $182,165 from the Planned Local Drainage Area D Fund. There is adequate cash in the fund to cover this expenditure. In lieu of the city performing maintenance of street trees, the HOA for this project may elect to perform said maintenance and, provided street tree maintenance is performed pursuant to the terms of this Agreement, the city will not perform street tree maintenance within Project limits. However, the city will continue to assess project street tree maintenance costs for city-wide street trees located outside project limits pursuant to the rights ofthe Lighting and Landscaping District #2. EXHIBITS: 1. Resolution No. 2014-245 approving a Reimbursement Agreement with developer for the construction of traffic signal at the intersection of La Costa Avenue and Levante Street 2. Resolution No. 2014-246 approving a Reimbursement Agreement with developer for the construction of traffic signal at the intersection of La Costa Avenue and Camino de Los Coches 3. Resolution No. 2014-247 approving a reimbursement agreement with developer for the construction of Planned Local Drainage Area (PLDA) facility, storm drain DQB and an approval for an appropriation of $182,165 from the Planned Local Drainage Area D Fund 4. Resolution No. 2014-248 approving a Street Tree Maintenance Agreement with Property Development Centers, LLC for La Costa Town Square Commercial, Project No. CT 01-09 5. Location Map 6. Reimbursement Agreement for the construction of traffic signal at the intersection of La Costa Avenue and Levante Street for La Costa Town Square Commercial, Project No. CT 01-09 7. Reimbursement Agreement for the construction of traffic signal at the intersection of La Costa Avenue and Camino de los Coches for La Costa Town Square Commercial, Project No. CT 01-09 8. Reimbursement Agreement for the construction of PLDA facility. Storm Drain DQB for La Costa Town Square Commercial, Project No. CT 01-09 9. Street Tree Maintenance Agreement for La Costa Town Square Commercial, Project No. CT 01- 09. ^1 3 EXHIBIT 1 1 RESOLUTION NO. 2014-245 2 3 APPROVING REIMBURSEMENT AGREEMENT FOR THE CONSTRUCTION OF TRAFFIC SIGNAL AT THE INTERSECTION OF LA 4 COSTA AVENUE AND LEVANTE STREET FOR LA COSTA TOWN SQUARE COMMERCIAL PROJECT NO. CT 01-09. 5 „ WHEREAS, the Property Owner, Property Development Centers, LLC, a Delaware b 7 limited liability corporation has executed a Reimbursement Agreement for the construction of 8 traffic signal at the intersection of La Costa Avenue and Levante Street for La Costa Town Square, Q Commercial (Agreement), and has submitted the Agreement to the City of Carlsbad for approval; 10 and 11 WHEREAS, the Property Owner has submitted this Agreement pursuant to 12 .J2 Condition No. 45 of Planning Commission Resolution No. 6581; and 14 WHEREAS, staff recommends approval of this agreement in that it satisfies ^5 Condition No. 45 of Planning Commission Resolution No. 6581. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, 17 California, as follows: 18 1. That the above recitations are true and correct. 19 2Q 2. That the Reimbursement Agreement for the construction of traffic signal 21 at the intersection of La Costa Avenue and Levante for La Costa Town Square Commercial, Project No. CT 01-09 between Property Development Centers, LLC and the City of Carlsbad, which is attached hereto and incorporated herein by reference, is hereby approved and the Mayor is authorized and directed to execute said Agreement. 3. That the City Clerk is authorized to forward said Agreement to the Office 23 24 25 26 27 of the County Recorder for recordation. 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 ofthe City Council ofthe City of Carlsbad on the 21st day of October 2014, by the following vote to wit: AYES: NOES: Council Members Hall, Packard, Schumacher, Blackburn. None. ABSENT: Council Member Wood. MATT HALL, Mayor ATTEST: .xvBAaBARA ENGLESON, City'Clerk V • ^^^^ ' ' • * i... 1 RESOLUTION NO. 2014-246 2 APPROVING REIMBURSEMENT AGREEMENT FOR THE 3 CONSTRUCTION OF TRAFFIC SIGNAL AT THE INTERSECTION OF LA COSTA AVENUE AND CAMINO DE LOS COCHES FOR LA COSTA 4 TOWN SQUARE COMMERCIAL. PROJECT NO. CT 01-09 ^ WHEREAS, the Property Owner, Property Development Centers, LLC, a Delaware 6 "imited liability corporation has executed a Reimbursement Agreement for the construction of 7 traffic signal at the intersection of La Costa Avenue and Camino de los Coches for La Costa Town 8 Square, Commercial (Agreement), and has submitted the Agreement to the City of Carlsbad for 9 .|Q approval; and 11 WHEREAS, the Property Owner has submitted this Agreement pursuant to condition 50 of Planning Commission Resolution No. 6581; and WHEREAS, staff recommends approval of this agreement in that it satisfies condition 50 of Planning Commission Resolution No. 6581. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, 12 13 14 15 16 17 California, as follows: 18 1. That the above recitations are true and correct. 19 20 21 22 23 Carlsbad, which is attached hereto and incorporated herein by reference, is hereby approved 24 and the Mayor is authorized and directed to execute said Agreement. 25 3. That the City Clerk is authorized to forward said Agreement to the Office 26 2. That the Reimbursement Agreement for the construction of traffic signal at the intersection of La Costa Avenue and Camino de los Coches for La Costa Town Square Commercial, Project No. CT 01-09 between Property Development Centers, LLC and the City of ofthe County Recorder for recordation. 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 ofthe City Council ofthe City of Carlsbad on the 21st day of October 2014, by the following vote to wit: AYES: NOES: ABSENT: Council Members Hall, Packard, Schumacher, Blackburn. None. Council Member Wood. MATT HALL, Mayor ATTEST: ..BARBARA ENGLESON, CMy Clerk XU' n 3 1 RESOLUTION NO. 2014-247 2 APPROVING REIMBURSEMENT AGREEMENT FOR THE 3 CONSTRUCTION OF PLDA FACILITY DQB AND APPROPRIATION OF $182,165 FOR LA COSTA TOWN SQUARE COMMERCIAL, PROJECT 4 NO. CT 01-09. ^ WHEREAS, the Property Owner, Property Development Centers, LLC, a Delaware 6 limited liability corporation has executed a Reimbursement Agreement for the construction of a 7 Planned Local Drainage Area (PLDA) facility. Storm Drain DQB, for La Costa Town Square, 8 Commercial (Agreement), and has submitted the Agreement to the City of Carlsbad for approval; 9 IQ and 11 WHEREAS, PLDA Facility, Storm Drain DQB, as contained in the 2008 Drainage Master Plan, crosses La Costa Town Square project site; and 13 WHEREAS, the owner wishes to construct the storm drain DQB now to facilitate 14 the project; and 15 WHEREAS, the project revised the alignment of Storm Drain DBQ as shown on 16 17 city approved drawing, DWG 409-4C; and 18 WHEREAS, the developer has requested to enter into a reimbursement 19 agreement pursuant to City of Carlsbad Municipal Code section 15.08.080; and 20 WHEREAS, staff recommends approval of this agreement in that it satisfies City 21 of Carlsbad Municipal Code section 15.08.080; and 22 23 WHEREAS, funding for this drainage project was not due to be appropriated 24 through the Capital Improvement Program for the year 2015; and 25 WHEREAS, staff is requesting an appropriation to be approved in the amount of 26 $182,165 from the Planned Local Drainage Area D Fund; and 27 WHEREAS, there is adequate cash in the fund to cover this expenditure. % 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 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows: 1. That the above recitations are true and correct. 2. That the Reimbursement Agreement for a Planned Local Drainage Area (PLDA) facility. Storm Drain DQB, for La Costa Town Square Commercial, Project No. CT 01-09 between Property Development Centers, LLC and the City of Carlsbad, which is attached hereto and incorporated herein by reference, is hereby approved and the Mayor is authorized and directed to execute said Agreement. 3. That the City Clerk is authorized to forward said Agreement to the Office ofthe County Recorder for recordation. 4. That the Administrative Services Director is authorized to appropriate $182,165 from the Planned Local Drainage Area D Fund to reimburse Property Development Centers, LLC for the construction of Storm Drain DQB. /// /// /// /// /// /// /// /// /// 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED, APPROVED AND ADOPTED at a Regular Meeting ofthe City Council ofthe City of Carlsbad on the 21st day of October 2014, by the following vote to wit: AYES: NOES: ABSENT: Council Members Hall, Packard, Schumacher, Blackburn. None. Council Member Wood. MATT HALL, Mayor ATTEST: BARBARA ENGLESON, Gi$V Clerk .v\tl"'//, c^:^^^^•fsHAL^v;•'.. 1 RESOLUTION NO. 2014-248 2 APPROVING A STREET TREE MAINTENANCE AGREEMENT FOR LA 3 COSTA TOWN SQUARE COMMERCIAL, PROJECT NO. CT 01-09. 4 WHEREAS, the Property Owner, Property Development Centers, LLC, a Delaware 5 g limited liability corporation has executed a Street Tree Maintenance Agreement for the for La 7 Costa Town Square, Commercial (Agreement), and has submitted the Agreement to the City of 8 Carlsbad for approval; and 9 WHEREAS, the Property Owner has submitted this Agreement pursuant to 10 Condition No. 15 of Planning Commission Resolution No. 6581; and 11 WHEREAS, staff recommends approval of this agreement in that it satisfies 12 .|3 Condition No. 15 of Planning Commission Resolution No. 6581 14 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, "I ^ California, as follows 16 17 18 19 20 Carlsbad, which is attached hereto and incorporated herein by reference, is hereby approved and 21 the Mayor is authorized and directed to execute said Agreement. 22 3. That the City Clerk is authorized to forward said Agreement to the Office 23 of the County Recorder for recordation 24 " 25 26 27 28 1. That the above recitations are true and correct. 2. That the Street Tree Maintenance Agreement for La Costa Town Square Commercial, Project No. CT 01-09 between Property Development Centers, LLC and the City of /// /// 1 PASSED, APPROVED AND ADOPTED at a Regular Meeting ofthe City Council ofthe City 2 of Carlsbad on the 21st day of October 2014, by the following vote to wit: 3 4 5 6 7 8 9 10 11 12 13 14 15 17 18 19 20 21 22 23 24 25 26 27 28 AYES: Council Members Hall, Packard, Schumacher, Blackburn. NOES: None. ABSENT: Council Member Wood. MATT HALL, Mayor ATTEST: 16 ..^AfipARA ENGLESON, Clerk ""t^lll^-^'^ LOCATION MAP NOT TO SCALE PROJECT NAME LA COSTA TOWN SQUARE - COMMERCIAL PROJECT NUMBER EXHIBIT 5 RECORDING REQUESTED BY WHEN RECORDED MAILTO: City Clerk CITY OF CARSLBAD 1200 Carlsbad Village Dr. Carlsbad, CA 92008 Please record this document At no fee as it is to the benefit Of the City of Carlsbad (Gov. Code [6103] SPACE ABOVE THIS LINE FOR RECORDER'S USE AGREEMENT FOR REIMBURSEMENT OF COSTS FOR THE CONSTRUCTION OF TRAFFIC SIGNAL AT THE INTERSECTION OF LA COSTA AVENUE AND LEVANTE STREET ASSOCIATED WITH CT 01-09 (LA COSTA TOWN SQUARE COMMERCIAL) Between CiTY OF CARLSBAD AND PROPERTY DEVELOPMENT CENTERS LLC AGREEMENT FOR REIMBURSEMENT OF COSTS FOR THE CONSTRUCTION OF TRAFFIC SIGNAL AT THE INTERSECTION OF LA COSTA AVENUE AND LEVANTE STREET ASSOCIATED WITH CT 01-09 (LA COSTA TOWN SQUARE COMMERCIAL) This Agreement for the reimbursement of costs for the construction pf traffic signal at the intersection of La Costa Avenue and Levante Street associated with Carlsbad Tract CT 01-09 (La Costa Town Square Commercial) dated AJy<>JrihjiAJ..^3 . 201^ ("Agreement") Is made at San Diego County California by and between the City of Carlsbad, a municipal corporation of the State of Califomia ("City"), and Property Development Centers LLC, a Delaware limited liability company ("Developer") (collectively the "Parties"). RECITALS A Developer is developing certain real property commonly known as La Costa Town Square - Commercial, ("Property"), located in City of Carlsbad and more particularly described as Carlsbad Tract CT 01-09 ("Project"); and, B. The Planning Commission of the City adopted Resolution No. 6581 on July 15, 2009, recommending approval ofthe Project; and, C. The^City Council of the City adopted Resolution No. 2009-232 on September 15, 2009 approving the project; and, D Condition no. 45 of Planning Commission Resolution No. 6581 requires Developer to design and construct certain public improvements more particularly described as a fully actuated traffic signal including all appurtenances and traffic signal interconnect at the intersection of La Costa Avenue and Levante Street ("Improvements"); and, E The Developer has entered into a secured Subdivision Improvement Agreement with City guaranteeing construction of Improvements per the improvement plans DWG 409- 4F dated November 9, 2012 ("Secured Improvement Agreement"), incorporated herein by this reference; and, F. Developer will construct Improvements in accordance with Secured Improvement Agreement and desires to receive reimbursement pursuant to condition number 50 of Planning Commission Resolution 6581; and, G The project's fair share contribution for the construction of the improvements is 79.6% percent of the actual cost determined from the Project's Traffic Impact Analysis, Appendix B of La Costa Town Square Environmental Impact Report, EIR 01-02, dated August 2009, and Caltrans Method for Calculating Equitable Mitigation Measures for traffic impact; and H Government Code Section 66485 allows the City to require a sub-divider to construct improvements benefiting outside the subdivision; and Government Code Section 66486 requires the City to enter into a reimbursement agreement for such improvements in excess ofthe construction required forthe subdivision. Parties agree that this agreement satisfies the requirements of Government Code Section 66486; and I. The Improvements are budgeted in the amount of $210,000 in the city's Fiscal Year 2014-15 Capital Improvement Program and is funded by the Gas Tax Fund; and J, City has established procedures entitled "Administrative Procedures for Reimbursable Public Works Projects" ("City Administrative Procedures"), incorporated herein by this reference, which guide the administration of developer constructed projects that receive reimbursement of construction costs using public funds to ensure compliance with State laws governing the use of publicly funded projects; and, K. A preliminary estimate of cost for design and construction of Improvements has been prepared and attached hereto as Exhibit "A" and made a part hereof by this reference. The Parties acknowledge that Exhibit "A", which was prepared by Developer's engineers, is for illustrative purposes only and that all costs are subject to audit and approval pursuant to City Administrative Procedures. L. Upon completion of the Improvements, Developer is eligible for reimbursement of 20.4 percent of the actual cost; but not to exceed $42,840, which is 20.4% of the City's cost estimate attached hereto as Exhibit "B" the and, M. City and Developer desire to establish a method to fairly reimburse fees to Developer for the cost to construct Improvements. NOW, THEREFORE, the City and Developer agree as follows: 1. Recitals. The recitals above are true and correct and incorporated herein by this reference. 2. Satisfaction of Obligation. Developer's agreement to perform the Reimbursable Work, as set forth herein, and the actual construction thereof, shall fully satisfy and constitute compliance with all requirements regarding the Project solely with respect to Reimbursable Work. 3. General Developer Obligations. a. Developer will cause the construction of Improvements in substantial compliance with Secured Improvement Agreement, and the City Administrative Procedures. b. Developer hereby waives any and all potential constitutional or other legal objections related to the Improvements. c. Developer agrees that the Reimbursable Amount recommended in the Improvement Audit prepared in accordance with City Administrative Procedures represents a fair accounting of the costs incurred by the Developer to construct the Improvements and no additional reimbursement and/or credit will be requested from City for the cost to construct the Improvements. 4. General Citv Obligations. a. City shall reimburse funds to Developer for the Reimbursable Amount as described in Section 5 and 6 below. b. All reimbursements made by the City pursuant to the terms of this Agreement shall be made only to Developer, unless othenwise directed, in writing by the Developer, to make reimbursement and/or to grant fee credits to another party 5. Reimbursable Work. a. The items of Reimbursable Work shall consist of all costs of construction thereof and all incidental costs of construction of the Improvements eligible for reimbursement under City Code and City Council Policy including the following: 1) Usual and customary design and engineering costs including civil engineering, soils engineering, survey and construction staking, agency fees and pemnits as they relate to the Improvements only 2) An amount equal to 4.0% of the direct cost of construction of the Improvements for the Developer's overhead, construction management and supervision, including on-site supervision. 3) An amount equal to 1.8% of the direct cost of constmction of the Improvements for the premiums paid by the Developer for blanket liability insurance coverage and for any surety bonds required for the Secured Improvement Agreement 6. Reimbursement Calculation. The Estimated Reimbursable Amount as determined by the Improvement Construction Estimate and Caltrans Method for Calculating Equitable Mitigation Measures is based on the project's Traffic Impact Analysis, Appendix B of La Costa Town Square Environmental Impact Report, EIR 01-02, dated August 2009. The Estimated Reimbursable amount is equal to 20.4 percent of the actual cost but not to exceed $42,840, which is 20.4 percent of the City's cost estimate attached hereto as Exhibit "B" 7. Pavment of Actual Reimbursement. Payment of the Actual Reimbursement shall be made, by the City within 30 days after submittal of an invoice for payment by Developer Any invoice submitted by Developer shall be made after approval of the respective audit report by the Deputy Public Works Director in accordance with City Administrative Procedures. 8. Disputes/Claims. If a dispute should arise regarding the perfomnance or interpretation of this Agreement, the following procedure shall be used to resolve any question of fact or interpretation not informally resolved by the parties. Such questions, if they become identified as a part of a dispute among persons operating under the provisions of this Agreement shall be reduced to writing by the principal of Developer or the Public Works Director of the City ("Director"). A copy of such documented dispute shall be fonwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The Director, or principal, upon receipt, shall reply to the letter, including a recommended method of resolution within ten (10) days. If the recommended resolution is unsatisfactory to the aggrieved party a letter outlining the dispute shall be fonwarded to the City Council for their resolution through the office of the City Manager The City Council may but is not obligated to resolve the dispute. If the City Council considers the dispute, and directs a solution, the action of the City Council shall be binding upon the parties involved, although nothing in this procedure shall prohibit the parties from seeking remedies available to them at law. 9. Assignment of Contract. The Developer may freely assign this contract or any part thereof or any monies due hereunder to any party that succeeds to Developer's obligations under a novation to the Secured Improvement AgreemenL Other assignments require written consent ofthe City. 10. Notices. Unless othenwise specifically provided herein, all notices, demands or other communications given hereunder shall be in writing and shall be deemed to have been duly delivered upon personal delivery or by Federal Express (or similar reputable express delivery service), or by facsimile transmission with back-up copy mailed the same day, or as of the second business day after mailing by United States Certified Mail, return receipt requested, postage prepaid, address as shown below. Notices required to be given to Developer shall be addressed as follows: Property Development Centers, LLC Attn: David Zylstra, Chief Operating Officer 5918 Stoneridge Mall Road Pleasanton, CA 94588-3229 Telephone: (925) 738-1202 Fax: (925) 738-1206 Notices to City shall be delivered to the following: CITY OF CARLSBAD Attention: Public Works Director 1635 Faraday Avenue Carlsbad, CA 92008 Telephone: (760) 602-2730 FAX: (760)602-8562 Each party shall notify the other immediately of any changes of address that would require any notice delivered hereunder to be directed to another address. 11. Transfer bv Developer. : The obligations and benefits of this Agreement may be transferred by Developer to any party that succeeds to Developer's obligations under a novation to the Secured Improvement Agreement. Other transfers require written consent of the City. 12. Governing Law and Venue. This Agreement shall be interpreted and enforced under the laws of the State of California, and venue shall reside in North San Diego County California. 13. Complete Agreement. This Agreement contains the entire agreement between the parties with respect to the subject matter contained herein, and supersedes all negotiations, discussions, and prior drafts with respect to this subject matter. 14. Amendment. This Agreement may be amended only by a written instrument executed by both the City and Developer. 15. Term. This Agreement shall be effective as of the date first above written, and shall terminate on August 15, 2019 or sooner if all of the Improvements have been completed and full reimbursement/credits have been given in accordance with the provisions of this Agreement. 16. No Third Partv Beneficiaries. This Agreement shall not be deemed to confer any rights upon any individual, or entity which is not a party hereto, and the parties hereto expressly disclaim any such third-party benefit. 17. Severability. The invalidity or unenforceability of any provision of this Agreement, as determined by a court of competent jurisdiction, shall in no way affect the validity or enforceability of any other provision hereof. /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written. DEVELOPER Property Development Centers LLC, A Delaware limited liability company By: Safeway Inc., a Delaware corporation jits sole member CITY OF CARLSBAD, a municipal corporation of the State of California By: Matt Hall, Mayor ATTEST: (sign here) (print name/titley Barbara City Clerk (e-mail address) By: (sign here) APPROVED AS TO FORM: Celia A. Brewer, City Attorney (print name/title) By Assistant City Attorney (e-mail addres FORIVI APPROVED: A proper notarial acknowledgment orixecution by Developer must be attached. Jf_a Corporation. Agreement must be signed^y one corporate officer from each of the following two groups. 'Group A. Chairman, President, or Vice-President "Group B. Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California 1 . J ; I Here Insert Name pnd Title'of the Officer 1 Date personally appeared Name(s) of Signer(s) SHELLEY COLLINS Commission # 1962114 Notary PuWic - California San Diego County r I ^''P'res Dec 25.2Q1.'i | who proved to me on the basis of satisfactory evidence to be the personld^ whose nam§(8f(@!ats. subscribed to the within instrument and acknowledged to me that (Bi^:ie/tbey executed the same in Ti^neftStheir authorized capacity (ies), and that by ^or/thoir. signature(8)^on the instrument the personl[5|f, or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. A Place Notary Seal Above Signature: OPTIONAL .mkm\jjM/- Signature al Notary Public Tiiougti the information below is not required by law, it may prove valuable to persotTSrtelying 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: Document Date: . Number of Pag§.sr Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: • Corporate Officer — Title(s): • Individual • Partner — • Limited • General • Attorney in Fact ^ • Trustee • Guardian or Conseryafbr • Other: ^ Signer Is-ffepresenting: RIGHT THUMBPRINT OFSIGNER Top 9f#iijrnb here Signer's Narne: •.eSrporate Officer — Title(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUIVIBPRINT OF SIGNER Top of thunnb here © 2010 National Notary Association • NatlonalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California County of _ On /of fflH before me, Of'nf^f^ "^r^/zS ^^/^j ' Date ' ( Here Insert Nameand Title of ttie Officer personally appeared ^f^(/C/?^,^oa{(y { /VP^^chs ^p'/^Y y I ( Namefs) of Signer(s) / • • • ft • L ANGELA PARLIAMENT Commission # 1935729 \ Notary Public - California 1 Alameila County g My Comm. Expires Jun 5. 20151 ^ i> ^ i> w n m • w * » »\ who 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. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and-Qfficial seal Place Notary Seal Above Signature: OPTIONAL 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: ^ Document Date: . Number of Pages:. Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: • Corporate Officer — Tjtle(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here Signer's Name: • Corporate Officer — Title(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here ) 2010 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 City of Carlsbad TRAFFIC SIGNAL BOND ESTIMATE FOR LA COSTA AVE and LEVANTE STREET C.T. 01-09 DWG. No. 409-4F JobNo. 10-1290 Prepared: July 5,2012 Revised: August 09,2012 Prepared by: O'DAY CONSULTANTS, INC. 2710 Loker Avenue West Suite 100 Carlsbad, Califomia 92010 Tel: (760)931-7700 Fax: (760)931-8680 Timothy O. Carroll RCE 55381 Exp. 12/31/12 Date La Costa Town Square Commercial \A'UI4 *A'' Improvement Plans 'g.J^v^* »T M LA COSTA AVE and LEVANTE STREET Dwg. No. 409-4F Quantity Unit Cost Item Total Traffic Signal: Traffic Signal (2x2 Intersection) 1.00 EA $127,050.00 $127,050.00 Signing and Striping LS $3,000.00 Traffic Signal Subtotal: $130,050.00 Total Cost without Contingencies $130,050.00 Contingencies @ 15% $19.507.50 Total Probable Construction Cost $149,557.50 00 CO o> CO QC o 0) CO Q UJ JS: -D ^ O QC Q. Q. < O o LU —} o oc Q. H- UJ Ul OC H (/} UJ I-z UJ < UI UJ 0) o o < I u. < QC I- UJ (/} > (/) 5 D O QC O LU < z H O UJ o DC CL AGREEMENT FOR REIMBURSEIMENT OF COSTS FOR THE CONSTRUCTION OF CITY OF CARLSBAD DRAINAGE MASTER PLAN FACILITY DQB LOCATED WITHIN LA COSTA TOWN SQUARE DEVELOPMENT, CT 01-09 BETWEEN CITY OF CARLSBAD, a Municipal corporation AND PROPERTY DEVELOPMENT CENTER, LLC AGREEMENT FOR REIMBURSEMENT OF COSTS FOR THE CONSTRUCTION OF CITY OF CARLSBAD DRAINAGE MASTER PLAN FACILITY DQB IN LA COSTA TOWN SQUARE COMMERCIAL CT 01-09 This Agreement for Reimbursement of Costs for the Constaiction of City of Cartsbad Drainage Master Plan facility, "Storm Drain DQB", in La Costa Town Square Commercial dated as of /0(»>t-cr1cuu.y^^ 2014 ("Agreement") is made at San Diego County, California, by and between the CITY OF CARLSBAD, a municipal corporation ("City") and Property Development Centers LLC, a Delaware limited liability company in the County of San Dlego ("Developer") with reference to the following recitals: RECITALS A. Owner is the record owner of certain real property located in the City of Carlsbad, California known as La Costa Town Square Commercial more particularly described on Exhibit "A" attached hereto and made a part hereof, and Exhibit "B", shown for reference purposes only. La costa Town Square is about 41.54 acres. B. Owner intends to subdivide the property into 15 commercial lots, 3 common lots and 1 open space lot ("Project"). The Project is the subject of certain development approvals received from City, including without limitation grading plans DWG 409-4C. C. A Planned Local Drainage Area Facility, Storm Drain DQB, as contained in 2008 the Drainage Master Plan, crosses the Project site. City proposes to construct improvements to Storm Drain DQB in the future. Owner wishes to construct the storm drain DQB improvements now to facilitate the Project. D. The Project revised the alignment of Storm Drain DBQ the Project as shown on city approved drawing, DWG 409-4C and Exhibit "C", attached hereto and made a part hereof. The Developer has requested to enter into a reimbursement agreement pursuant to City of Carlsbad Municipal Code section 15.08.080. E. The City's cost estimate for the design and construction of Storm Drain DQB as contained in the 2008 City Drainage Master Plan is $745,842 attached hereto as Exhibit "D". The developer has requested reimbursement for $182,165 as detailed in the cost estimate prepared by the owner and shown in Exhibit "E", attached hereto and made a part hereof. F. The Parties intend that upon completion of Storm Drain DQB, the City will perform an audit to determine the actual cost of the Storm Drain DQB. The developer is eligible for reimbursement of the actual cost of Storm Drain DQB but not to exceed $745,842, City's cost estimate for the design and construction of Storm Drain DQB. NOW, THEREFORE, the City and District agree as follows: 1. Recitals. The Recitals, above, are true and correct and incorporated herein by this reference, 2. Improvements. The proposed Storm Drain DQB are further described on Drawing No. 409-4C of the improvement plans for La Costa Town Square project on file with the City Engineer, incorporated herein by this reference. 3. Citv Obligations. (a) City agrees to pay Developer an amount equal to the actual cost of the said Storm Drain DQB, as determined by an audit performed by the City after completion of Storm Drain DQB but not to exceed $745,842, City's cost estimate for the design and construction of Storm Drain DQB. (b) Any such payment to the Owner shall be made within thirty days (30) of written request to make such payment. 4. District Obliaations. ' (a.) Owner agrees to bear the cost of the difference between the actual cost to construct the Storm Drain DQB, as determined by an audit performed by the City after completion of Storm Drain DQB, and $745,842, if such audit determines that the actual cost exceeds $745,842. 5. Audited Fair Share Work. Owner shall retain detailed payment records for all items of work during the design and construction of Storm Drain DBQ, for use by the City in preparing the audit of the cost of Storm Drain DQB. This audit shall be made available to the Owner for review, for a period of no less than thirty (30) days prior to the commencement of the thirty (30) day grace period by which payment is due per section 3. (c.) above. 6. Disputes/Claims. If a dispute should arise regarding the performance or interpretation of this Agreement, the following procedure shall be used to resolve any question of fact or interpretation not informally resolved by the parties. Such questions, if they become identified as a part of a dispute among persons operating under the provisions of this Agreement shall be reduced to writing by the District Superintendent or the City's Director of Public Works. A copy of such documented dispute shall be fonwarded to both parties involved along with recommended methods of resolution which would be of benefit to both parties. The Director, or principal, upon receipt, shall reply to the letter, including a recommended method of resolution within ten (10) working days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the dispute shall be fonwarded to the City Council for their resolution through the office of the City Manager. The City Council may, but is not obligated to resolve the dispute. If the City Council considers the dispute, and directs a solution, the action of the City Council shall be binding upon the parties involved, although nothing in this procedure shall prohibit the parties from seeking remedies available to them at law. 7. Assianment of Agreement. The Developer may freely assign this contract or any part thereof or any monies due hereunder to any party that succeeds to Developer's obligations under a novation of a Subdivision Improvement Agreement or othenwise. Other assignments require written consent of the City. 8. Notices. Unless othenwise specifically provided herein, all notices, demands or other communications given hereunder shall be in writing and shall be deemed to have been duly delivered upon personal delivery, or by Federal Express (or similar reputable express delivery service), or by facsimile transmission with back-up copy mailed the same day, or as of the second business day after mailing by United States Certified Mail, return receipt requested, postage prepaid, address as specified herein. Notices required to be given to District shall be addressed as follows: David Zylstra, Chief Operating Officer Property Development Centers 5858 Stoneridge Mall Road Pleasanton, CA 94588 Telephone: (925) 738-1202 Notices to City shall be delivered to the following: CITY OF CARLSBAD Public Works/Engineering Department Attention: Public Works Director 1635 Faraday Ave Carlsbad, CA 92008 Telephone: (760) 602-2730 FAX: (760) 602-8562 Each party shall notify the other immediately of any changes of address that would require any notice delivered hereunder to be directed to another address. 9. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute one and the same instrument. 10. Governing Law and Venue. This Agreement shall be interpreted and enforced under ttie laws of the State of California, and venue shall reside in San Diego County, California. 11. Complete Agreement. This Agreement contains the entire agreement between the parties with respect to the subject matter contained herein, and supersedes all negotiations, discussions, and prior drafts with respect to this subject matter. 13. Amendment This Agreement may be amended by a written instrument executed by City and Owner. 14. Term. This Agreement shall be effective as of the date first above written, and shall terminate on the date the City pays to Developer the actual audited amount of actual cost of the Storm Drain DQB Improvements. 15. Severability. The invalidity or unenforceability of any provision of this Agreement, as determined by a court of competent jurisdiction, shall in no way affect the validity or enforceability of any other provision hereof. /// /// /// /// /// /// /// IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written. OWNER: Property Development Centers, a Delaware corporation By: Safeway Inc., a Delaware corporation, its sole member (sign here) (print name and title) ^-^ (sign hex&fr CITY OF CARLSBAD, a municipal corporation of the State of California Matt Hall, Mayc ATTEST: (print name and title) FORM APPROVED; APPROVED AS TO FORM: Celia A. Brewer, City Attorney BY: eputy City Attorney -5- CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE §1189 State of California nf 5an ly\iiM) County On before me Date personally appeared [ hyuff. ,k\iMi.viA PiAblif. , 1 , , ' I Here Insert Name and Tkle c Here Insert Name and Tkle of the Officer Name(s) of Signer(s) SHELLEY COLLINS Commission # 1962114 Notary Public - California San Diego County Mv Comm. Exptfes Dec 25.2015 | who proved to me on the basis of satisfactory evidence to be the person^ whose name(sO ^/are- subscribed to the within instrument and acknowledged to me that ^l3fi&Tl5/they executed the same in ''^I\!iefM^\r authorized capacity(i^s)r' and that by Mr signature(s)^'"on the instrument the person(s)r' or the entity upon behalf of which the persori^acted, executed the instrument. 1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal Above Signature: OPTIONAL — Sigriature 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: Document Date: . Number of P.ag^s: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: • Corporate Officer — Title(s): • Individual • Partner— • Limited • General • Attorney in Fact • Trustee ,, •' • Guardian or Conservator' • Other: / RIGHTTHUMBPRINT OF SIGNER Top of tburfib here SignerJs-Representing:. Signer's„Name: CJ^orporate Officer — Title(s): • Individual • Partner — • Umited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: RIGHT THUMBPRINT OF SIGNER Top of thumb here 5 2010 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California County of _ before me. Date ' r. I Here insert Name and Title of the Officer personally appeared ^tC0(/) ^r fooif f Maf?C^ii ^p/^ ^ ^ .r l-l- £7 « J Name(s) of Signer(s) ' z ' ANGELA PARLIAMENT f Commission # 1935729 I Notary Public - California i Alameda County j My Comm. Expires Jun 5, 2015 { V « V V • « who 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. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand andjafficial seal. Place Notary Seal Above Signature: OPTIONAL — '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: Document Date: Number of Pages:. Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: • Corporate Officer — Title(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing:. RIGHTTHUMBPRINT OF SIGNER Top of thumb here Signer's Name: • Corporate Officer — Title(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: RIGHTTHUIVIBPRINT OF SIGNER Top of thumb here © 2010 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) March 20, 2014 JN.101290 EXHIBIT 'A' LEGAL DESCRIPTION PARCEL 2 OF CARLSBAD MINOR SUBDIVISION NO. 04-08 IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO PARCEL MAP THEREOF NO. 20982, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON JULY 11, 2012 AS DOCUMENT NO. 2012- 0402964, OF OFFICIAL RECORDS. Paee 1 of 1 EXHIBIT 'B' LEGEND BOUNDARY UNE LOT UNE LOT NUMBER SCALE: 1" = 300' PR COVENANT FOR PRIVATE DRAINAGE EASEMENTS APPLICANT: CITT OF CARLSBAD DATE: APRIL 22. 2014 PROPERTY DEVELOPMENT CENTERS. LLC 5918 STONERIDGE MALL RD PLEASANTON. CA 94588 (925) 738-1232 SHEET 1 OF 1 SHEET \001017\_Commafdd\Pfals\CovenoiitE3mt\CovenontEsml.dwo Apr 22, 2014 10;44om rafK 1090PSTR: 1090PHAP-CC6: 1090PMAP-BDYi CovanantEsmts-Bordan 1090PUTI- 2710 Loker Avenue West, Suite 100, Carlsbad, Co 92010 760-931-7700 www.ODayConsultants.com T.M. A.P.N. CC6; 109(»>Ua-CC6-PH2 NO SCALE LEGEND EXISTING PUBUC STORM DRAIN. . PROPOSED PUBUC STORM DRAIN. ... (COST TO BE REIMBURSED) RANCHO SANTA FE RD. ) O N S U L T A/N T S 2710 Loker Ave. West Suile 100 Carlsbad, California 92010 750-931-7700 Fax: 760-931-8680 ODoyConsuItants.com Civi! Engineering Planning Processing Surveying STORM DRAIN REIMBURSEMENT EXHIBIT O CITY OF CARLSBAD PAGE 1 OF 1 REQUESTED BY: PROPERTY DEVELOPMENT CENTERS. LLG 5918 STONERIDGE MALL RD. PLEASANTON, CA 94588 PREPARED BY: TIMOTHY 0. CARROLL JR. APM REQUESTED BY: PROPERTY DEVELOPMENT CENTERS. LLG 5918 STONERIDGE MALL RD. PLEASANTON, CA 94588 REQUESTED BY: PROPERTY DEVELOPMENT CENTERS. LLG 5918 STONERIDGE MALL RD. PLEASANTON, CA 94588 LS. 7700 EXP. 12/31/14 nATF JAN. 24. 2014 UJ z o -z. O CO :: LU H UJ X UJ o Q. Q. < O o Ui -3 o cr: CL LU O < z < Q 111 I-z UJ o z % o ? (0 o o < I (/} I-o UJ "9 o 0. UJ O < z < o ffl o o 2 Q. UJ I- S UJ O < z < Qf Q LU < z h-o LU .-3 o CL o o _l o UJ -» o tc. a. T3 CO O Qi (D LL ro c ro CO o c ro c^ T3 C ro (D c ro w o O ro I-Q. Q: o tn Mi D 1- U lil -> o te. o. 0 c o T3 C ro o ro o o > 0 g. Q. 0 .•-» 0 ^ o c o o T3 0 O C 0 \ i_ 0 .*-» 0 E ro .c o _c CD CO 0 tl O O Q UJ UJ Z H O UJ -5 o Of Q. c 0 E Q. O 0 > 0 T3 0 C 0 o i2 ro "5 o O ro •a 0 CO o Q. o 0 -.-» E o s M— !t O c L. >, 0 > c o o l2 0 u \-3 O CO o c c u. to o o •o 0) (0 E to Ul PPP < < < OQQ _1 _l _J CL CL CL o m O T- (N O CN CD r«~" o" 00" T- 00 CD «3- CM t» 0) to O Q w 3 Q. ro S .0 > CO c C 0 o UJ Q O to o O B .0 CON S U L T /K/T NTS Civil Engineermg • Surveying Storm Drain Reimbursement Drainage Master Plan Facilitv DOB J.N. 10-1290-10 August 28, 2014 Construction Surveying $5,550 Engineering design $17,737 Construction $140,586 Improvement plan check fee $5,979 Improvement inspection fee $4,650 Performance Bond $1,406 Payment Bond $1,406 General Contractor $3,515 Insurance $1,336 Total $182,165 O'Day Consultants Inc. 2710 Loker Avenue West, Suite 100 Carlsbaci, California 92010-6609 E-mail: oday@odayconsultants.com Website: www.odayconsultants.com Tel: 760.931.7700 Fax: 760.931.8680 RECORDING REQUESTED BY WHEN RECORDED MAILTO: City Clerk CITY OF CARSLBAD 1200 Carlsbad Village Dr. Carlsbad, CA 92008 Please record this document At no fee as It is to the benefit Of the City of Carlsbad (Gov. Code [6103] SPACE ABOVE THIS LINE FOR RECORDER'S USE AGREEMENT FOR REIMBURSEMENT OF COSTS FOR THE CONSTRUCTION OF TRAFFIC SIGNAL AT THE INTERSECTION OF LA COSTA AVENUE AND CAMINO DE LOS COCHES ASSOCIATED WITH CT 01-09 (LA COSTA TOWN SQUARE COMMERCIAL) Between CITY OF CARLSBAD AND PROPERTY DEVELOPMENT CENTERS, LLC AGREEMENT FOR REIMBURSEMENT OF COSTS FOR THE CONSTRUCTION OF TRAFFIC SIGNAL AT THE INTERSECTION OF LA COSTA AVENUE AND CAMINO DE LOS COCHES ASSOCIATED WITH CT 01-09 (LACOSTA TOWN SQUARE COMMERCIAL) This Agreement for the reimbursement of costs for the construction of traffic signal at the intersection of La Costa Avenue and Camino de los Coches associated with Carlsbad Tract CT 01-09 (La Costa Town Square Commercial) dated Lk}i^kuuJ<^S . 20jJL ("Agreement") is made at San Diego County, California by and between the City of Carlsbad, a municipal corporation of the State of California ("City"), and Property Development Centers LLC, a Delaware limited liability company ("Developer") (collectively, the "Parties"). RECITALS A. Developer is developing certain real property commonly known as La Costa Town Square - Commercial, ("Property"), located in City and more particularly described as CT 01-09 ("Project"); and, B. The Planning Commission of the City adopted Resolution No. 6581 on July 15, 2009, recommending approva! of the Project; and, C. The City Council of the City adopted Resolution No. 2009-232 on September 15, 2009 approving the Project; and, D. Condition number 50 of the Planning Commission Resolution No. 6581 requires Developer to design and construct certain public improvements more particularly described as a fully actuated traffic signal including all appurtenances and traffic signal interconnect at the intersection of La Costa Avenue and Camino De Los Coches ("Improvements"). The said condition states that the developer may be eligible for partial reimbursement and a reimbursement agreement must be approved prior to final map recordation; and, E. The Developer has entered into a secured Subdivision Improvement Agreement with City guaranteeing construction of Improvements per the improvement plans DWG 475- 2C dated November 9, 2012 ("Secured Improvement Agreement"), incorporated herein by this reference; and, F. Developer will construct Improvements in accordance with Secured Improvement Agreement and desires to receive partial reimbursement pursuant to condition number 50 ofthe Planning Commission Resolution 6581; and, G. The project's fair share contribution for the construction of the improvements is 61.5 percent of the actual cost determined from the Project's Traffic Impact Analysis, Appendix B of La Costa Town Square Environmental Impact Report, EIR 01-02, dated August 2009, and Caltrans Method for Calculating Equitable Mitigation Measures for traffic impact; and, H. Government Code Section 66485 allows the City to require a sub-divider to construct improvements benefiting outside the subdivision; and Govemment Code Section 66486 requires the City to enter into a reimbursement agreement for such improvements in excess of the construction required for the subdivision. Parties agree that this agreement satisfies the requirements of Government Code Section 66486; and, I. The Improvements are budgeted in the amount of $190,000 in the city's Fiscal Year 2013-14 Capital Improvement Program and is funded by the Gas Tax Fund; and, J. City has established procedures entitled "Administrative Procedures for Reimbursable Public Works Projects" ("City Administrative Procedures"), incorporated herein by this reference, which guide the administration of developer constructed projects that receive reimbursement of constmction costs using public funds to ensure compliance with State laws governing the use of publicly funded projects; and, K. A preliminary estimate of cost for design and construction of Improvements has been prepared and attached hereto as Exhibit "A" and made a part hereof by this reference. The Parties acknowledge that Exhibit "A", which was prepared by Developer's engineers, is for illustrative purposes only and that all costs are subject to audit and approval pursuant to City Administrative Procedures; and, L. Upon completion of the Improvements, Developer is eligible for reimbursement of 38.5 percent ofthe actual cost but not to exceed $73,150, which is 38.5 percent ofthe City's cost estimate attached hereto as Exhibit "B"; and, M. City and Developer desire to establish a method to fairly reimburse fees to Developer for the cost to construct Improvements. NOW, THEREFORE, the City and Developer agree as follows: 1. Recitals. The recitals above are true and correct and incorporated herein by this reference. 2. Satisfaction of Obligation. Developer's agreement to perform the Reimbursable Work, as set forth herein, and the actual construction thereof, shall fully satisfy and constitute compliance with all requirements regarding the Project solely with respect to Reimbursable Work. 3. General Developer Obligations. a. Developer will cause the construction of Improvements in substantial compliance with Secured Improvement Agreement, and the City Administrative Procedures. b. Developer hereby waives any and all potential constitutional or other legal objections related to the Improvements. c. Developer agrees that the Reimbursable Amount recommended in the Improvement Audit prepared in accordance with City Administrative Procedures represents a fair accounting of the costs incurred by the Developer to construct the Improvements and no additional reimbursement and/or credit will be requested from City for the cost to construct the Improvements. 4. General Citv Obligations. a. City shall reimburse funds to Developer for the Reimbursable Amount as described in Section 5 and 6 below. b. All reimbursements made by the City, pursuant to the terms of this Agreement shall be made only to Developer, unless othen/vise directed, in writing by the Developer, to make reimbursement and/or to grant fee credits to another party. 5. Reimbursable Work. a. The items of Reimbursable Work shall consist of all costs of construction thereof and all incidental costs of construction of the Improvements eligible for reimbursement under City Code and City Council Policy including the following: 1) Usual and customary design and engineering costs including civil engineering, soils engineering, survey and construction staking, agency fees and permits as they relate to the Improvements only. 2) An amount equal to 4.0% of the direct cost of construction of the Improvements for the Developer's overhead, construction management and supervision, including on-site supervision. 3) An amount equal to 1.8% of the direct cost of construction of the Improvements for the premiums paid by the Developer for blanket liability insurance coverage and for any surety bonds required for the Secured Improvement Agreement. 6. Reimbursement Calculation. The Estimated Reimbursable Amount as determined by the Improvement Construction Estimate and Caltrans Method for Calculating Equitable Mitigation Measures is based on the project's Traffic Impact Analysis, Appendix B of La Costa Town Square Environmental Impact Report, EIR 01-02, dated August 2009. The Estimated Reimbursable amount is equal to 38.5 percent of the actual cost but not to exceed $73,150, which is 38.5 percent ofthe City's cost estimate attached hereto as Exhibit "B". 7. Pavment of Actual Reimbursement. Payment of the Actual Reimbursement shall be made, by the City, within 30 days after submittal of an invoice for payment by Developer Any invoice submitted by Developer shall be made after approval of the respective audit report by the Deputy Public Works Director in accordance with City Administrative Procedures. 8. Disputes/Claims. If a dispute should arise regarding the perfonnance or interpretation of this Agreement, the following procedure shall be used to resolve any question of fact or interpretation not informally resolved by the parties. Such questions, if they become identified as a part of a dispute among persons operating under the provisions of this Agreement shall be reduced to writing by the principal of Developer or the Public Works Director of the City ("Director"). A copy of such documented dispute shall be fonwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The Director, or principal, upon receipt, shall reply to the letter, including a recommended method of resolution within ten (10) days. If the recommended resolution is unsatisfactory to the aggrieved party, a letter outlining the dispute shall be fonwarded to the City Council for their resolution through the office of the City Manager The City Council may, but is not obligated to resolve the dispute. If the City Council considers the dispute, and directs a solution, the action of the City Council shall be binding upon the parties involved, although nothing in this procedure shall prohibit the parties from seeking remedies available to them at law. 9. Assignment of Contract. The Developer may freely assign this contract or any part thereof or any monies due hereunder to any party that succeeds to Developer's obligations under a novation to the Secured Improvement Agreement. Other assignments require written consent of the City. 10. Notices. Unless othenwise specifically provided herein, all notices, demands or other communications given hereunder shall be in writing and shall be deemed to have been duly delivered upon personal delivery, or by Federal Express (or similar reputable express delivery service), or by facsimile transmission vwth back-up copy mailed the same day. or as of the second business day after mailing by United States Certified Mail, return receipt requested, postage prepaid, address as shown below. Notices required to be given to Developer shall be addressed as follows: Property Development Centers, LLC Attn: David Zylstra, Chief Operating Officer 5918 Stoneridge Mall Road Pleasanton, CA 94588-3229 Telephone: (925) 738-1202 Fax: (925) 738-1206 Notices to City shall be delivered to the following: CITY OF CARLSBAD Attention: Public Works Director 1635 FaradayAvenue Carlsbad, CA 92008 Telephone: (760) 602-2730 FAX: (760)602-8562 Each party shall notify the other immediately of any changes of address that would require any notice delivered hereunder to be directed to another address. 11. Transfer bv Developer. : The obligations and benefits of this Agreement may be transferred by Developer to any party that succeeds to Developer's obligations under a novation to the Secured Improvement Agreement. Other transfers require written consent ofthe City. 12. Governing Law and Venue. This Agreement shall be interpreted and enforced under the laws of the State of California, and venue shall reside in North San Diego County, California. 13. Complete AgreemenL This Agreement contains the entire agreement between the parties with respect to the subject matter contained herein, and supersedes all negotiations, discussions, and prior drafts with respect to this subject matter. 14. Amendment. This Agreement may be amended only by a written instrument executed by both the City and Developer. 15. Term. This Agreement shall be effective as of the date first above written, and shall terminate on August 15, 2020 or sooner if all of the Improvements have been completed and full reimbursement/credits have been given in accordance with the provisions of this Agreement. 16. No Third Partv Beneficiaries. This Agreement shall not be deemed to confer any rights upon any individual, or entity, which is not a party hereto, and the parties hereto expressly disclaim any such third-party benefit. 17. Severabilitv. The invalidity or unenforceability of any provision of this Agreement, as determined by a court of competent jurisdiction, shall in no way affect the validity or enforceability of any other provision hereof. /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written. DEVELOPER Property Development Centers LLC, A Delaware limited liability company By: Safeway Inc., a Delaware corporation/its sols, member ^ . (sign here) (print name/title) CITY OF CARLSBAD, a municipal corporation of the State of California Barbara City Clerk (e-mail address) (sign here) (print nbmenitle) ^ APPROVED AS TO FORM: Celia A. Brewer, City Attorney (e-mail add( FORM APPROVED: A proper notarial ackno'wledgfne"nt of/execution by Developer must be attached. ILl Conaoration. Agreement must be signecf by one corporate officer from each of the following two groups. "Group A. Chairman, President, or Vice-President **Group B. Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California County of: on 1fe^)7.aM ^is me, ."kilCii (ihlkS, .t\ ft iioUr , . ' nStT '-~ I , . . I ] Here Insert Narfie and Title of the Officer^ Date personally appeared Name(s) of Signer(s) SHELLEY COLLINS f Commission # 1962114 | Notary Public • Caiifornia f . -^jmim- San Diego County S L^^^ My Comm. Expires Pec 25,20isf who proved to me on the basis of satisfactory evidence to be the persor^ whose name(^)^/are- subscribed to the within instrument and acknowledged that J^slkMl\ iBy executed the same in letf- authorized capacity(i^ and that by ^j^h^TTffieTr'signature(a)^on the instrument the person(g^ or the entity upon behalf of which the person(s)^ted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS nzfit^and and ofticial seal. Place Notary Seal Above Signature: OPTIONAL mtaiy Publlc 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: Document Date:. , Numbepef Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Sigjje'^ Name:. • Corporate Officer — Title(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee ,--' • Guardian or Gon§efS7ator • Other: • RIGHT THUMBPRINT OF SIGNER Tgp^f thumb here Signdf Is Representing:. ^ D Corporate Officer — Title(s): j • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: : RIGHT THUMBPRINT OF SIGNER Top of thumb here O 2010 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California County of iia On /^/f//f before me, '^'7)^c/ff^//??^ ' Date <~' • / Here Insert Name and Title of the Officer personally appeared {/ 7 flame(^ of Slgner(s) ' / Ifti * * I ANGELA PARLIAMENT \ Commission # 1935729 | Notary Public - California z z wj^y^ Alameda County - 1 ^*tea9#^ Comm. Expires Jun 5, 2015 ^ who 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. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand an Place Notary Seal Above Signature: OPTIONAL — Signature of Notary PubUs 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: Document Date: . Number of Pages:. Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: • Corporate Officer — Title(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here Signer's Name: • Corporate Officer — Title(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here © 2010 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) City of Carlsbad TRAFFIC SIGNAL BOND ESTIMATE FOR LA COSTA AVE and CAMINO DE LOS COCHES C.T. 01-09 and 08-03 DWG. No. 475-2C JobNo. 10-1290 Prepared: July 5,2012 Revised: August 09,2012 Prepared by: O'DAY CONSULTANTS, INC. 2710 Loker Avenue West Suite 100 Carlsbad, Califomia 92010 Tel: (760)931-7700 Fax: (760)931-8680 Timothy O, Carroll RCE 55381 Exp. 12/31/12 Date La Costa Town Square Commercial Improvement Plans LA COSTA AVE and CAMINO DE LOS COCHES Dwg. No. 475-2C Quantity Unit Cost Item Total Traffic Signal: Traffic Signal (2x2 intersection) Striping and Signage 1.00 EA LS $127,050.00 $127,050.00 $3,000.00 Traffic Signal Subtotal: $130,050.00 Total Cost without Contingencies Contingencies @ 15% Total Probable Construction Cost $130,050.00 $19,507.50 $149,557.50 If) OJ CO CD a. cc o CO O K Q, < O o LU —3 o cc Q. Ul LU CO o o < < CO UJ X o o o CO o UJ o o z < o • CO < z Ol UJ —) O DC Q. CO o u. u. < oc z g o o o Ui -3 o oc 0. I CO .—. CO o O ctJ _1 •o c ca CO (D .c o o O CD O CD T3 O E CQ O c _o o 0 CO I 0 Z g CC o CO UJ Q H O UJ -3 o QC a. p b ^8 T- >- CO c C CO _3 o c CO c 'co .0 "5 •o 0 E © CO Q. I " o ^ 'B CO .Q-o CO D) C 'c O) CO CO ~ il = -% 5 0-5' 0 O C , © Cfl © > OJ H " CO CO .2 E O CO Q UJ UJ z H o UJ -a O OC 0. 5 w © © CO c: jg CO _ « .52 ^ .E £ >= *^ CO CO ° "o T3 © « O ^ ^ « § CO c CO ^ ©-g ©H-K . ^ «5 E c 0 eg E .c CO c © © :£ Jo ii2 g 5 © ^ ^ i CO i= CO if CO Q. C E .e* o w " o o i= (0 •O i: © © © © .C Z 5 o CO o u i- 3 o (0 o c '6 c (0 o o •o £ (0 UJ CO CO CO CO 0 O o o o o o o cxj cvT C£) o o o o o> r- 9 B .2> © S2 0- S2 x: CO ffi CO g CO o O z < z E o Q 3 QL c o o CO CO c © o Q O (0 o o UJ CO >- CO D O CC o RECORDING IS REQUESTED FOR THE BENEFIT OF THE CITY OF CARLSBAD WHEN RECORDED MAILTO: CITY OF CARLSBAD Attn: City Clerk 1200 Carlsbad Village Dr. Carlsbad, CA 92008 ASSESSOR'S PARCEL PROJECT ID PROJECT NAME CT 01-09 La Costa Town Square, Commercial RELATED PROJECT ID: STREET TREE MAINTENANCE AGREEMENT This Agreement is made by and between Property Development Centers LLC, a Delaware limited liability company ("Owner") and the City of Carlsbad, a municipal corporation ("City"), (collectively, "Parties"). Recitals WHEREAS, Owner owns certain real property in the City of Carlsbad, County of San Diego, and State of California more properly described in "Exhibit A", attached hereto and incorporated herein ("Property"); and, WHEREAS, Owner seeks to record a final map(s) to develop Property in accordance with Tentative Map No. CT 01-09 La Costa Town Square - Commercial ("Project"); and, WHEREAS, in consideration of the Project conditions-of-approval. Owner is required to install trees within the parkways ("Street Trees"), where parkways are defined as the areas along the sides of streets within the public street right-of-way between the back of the curb and the right-of-way line; and. WHEREAS, Owner seeks to satisfy condition 15 of PC Resolution 6581, to ensure ongoing maintenance is performed on Street Trees; and, WHEREAS, the Project is required to be annexed into Street Lighting and Landscape District #2 (District). District is a financing mechanism to fund the maintenance and replacement of certain improvements within the right-of-way including public street lights, arterial median landscaping & irrigation, and Street Trees; and, WHEREAS, In lieu of District performing maintenance of Street Trees, Owner may elect to perform said maintenance and, provided Street Tree maintenance is performed pursuant to the terms of this Agreement, District will not assess street tree maintenance costs to property owners within Project limits. NOW, THEREFORE, in consideration ofthe mutual covenants herein, the Parties agree as set forth below. 1. Street Trees. Owner has prepared construction plans to install Street Trees in accordance with the Project conditions-of-approval, City of Carlsbad's Community Forest Management Plan, Landscape Manual, Municipal Code, Council Policy on Street Trees, and City Standards, all as shown on the approved landscape and irrigation plan(s), DWG 409-4L, (collectiveiy "Landscape Plans") on file with the City. In addition to installing Street Trees, the Landscape Plans described herein detail construction of other items not covered by this Agreement. The term Street Trees, for the purposes of this Agreement, shall not include other items. Other items include, but are not limited to turf, shrubbery, groundcover, irrigation, and hardscape ("Other Items"). However, nothing in this Agreement shall preclude Owner or the Association referred to in Paragraph 12 below from maintaining the Other items. 2. Street Tree Maintenance, Upon construction of Project improvements and City release of security of Project improvements, Owner agrees, at its sole cost and expense, to maintain, repair, and replace, the Street Trees described herein. The locations of Street Trees covered by this Agreement are described in "Exhibit B", attached hereto. The maintenance obligations are described as: a. Owner shall perform all necessary maintenance on Street Trees including but not limited to trimming, pruning, staking, root barriers, and street tree replacement, all in accordance with the City of Carisbad's Community Forest Management Plan, Landscape Manual, Municipal Code, Council Policy on Street Trees, and City Standards to ensure Street Trees are maintained in a healthy condition. Owner shall install only those species of street trees as approved by the City. Owner Is responsible to maintain street trees in locations as shown on the approved Landscape Plan. Owner shall not remove or relocate street trees to alternate locations without written prior approval from the City. Owner shall perform maintenance to prevent and, if necessary, address any immediate health and safety concerns including but not limited to fallen Street Trees, overgrowth into vehicular or pedestrian travel way, root damage to sidewalks, and visual impairments related to traffic movements, All maintenance activities in this paragraph are described as "Street Tree Maintenance", hereinafter. Unless othenwise approved by the City, all Street Trees removed due to death shall be replaced by the Owner with a Street Tree of the same species as the one removed, and within the same vicinity as the one removed. The replacement Street Tree shall be of a minimum 15-gallon container size, and shall be installed by the Owner no later than 45 days from the date the prior Street Tree was removed. 3. Parkway Irrigation. Owner, at its sole cost and expense, shall provide for all ongoing irrigation required to ensure adequate growth and, once established, to maintain the Street Trees covered by this Agreement. Owner is responsible to maintain all Irrigation Improvements as shown on the Landscape Plan (Irrigation Improvements). Owner shall perform necessary inspections of irrigations systems and controllers to make adjustments of seasonal water demands and irrigation heads to provide the necessary water for Street Trees. 4. Successors and Assigns. This Agreement shall be binding and inure to the benefit of the parties hereto and their respective legal representatives, successors, and assigns. Owner agrees to incorporate this Agreement by reference in any subsequent deeds to the property, but any failure to do so does not invalidate this provision. 5. Permits Required. Owner shall obtain all necessary pennits required to perform Street Tree Maintenance in City right-of-way 6. Indemnity. Owner shall defend, indemnify and hold harmless the City, its officers, employees and agents from any actions, suits, claims, damages to persons or property, costs including attorney's fees, penalties, obligations, errors, omissions, demands, liability, or loss that may be asserted or claimed by any persons, firm, or entity arising from the Owner performing Street Tree Maintenance, or lack thereof, described herein. 7. Responsibility of Plans. Approval of the Landscape Plans by the City shall not constitute an assumption by the City of any responsibility for such damage, costs, etc. City shall not be an insurer or surety for the design, construction or maintenance ofthe Street Trees pursuant to the Landscape Plans, nor shall any officer or employee thereof be liable or responsible for any accident, loss or damage happening or occun-ing while performing Street Tree Maintenance as specified in this Agreement. 8. Notices. Any notice which is required or may be given pursuant to this Agreement shall be sent in writing by United States mail, first class, postage pre-paid, registered or certified with return receipt requested, or by other comparable commercial means and addressed as follows: If to the City: If to the Owner: City of Carisbad, City Engineer Property Development Centers 1635 Faraday Avenue 5858 Stoneridge Mall Road Carisbad CA 92008 Pleasanton, CA 94588 which addresses may be changed from time to time by providing notice to the other party in the manner described above. 9. Lien Capability. Subsequent to Owner notice, and lack of action to remedy the breach of terms of this Agreement, the City may have the right, but the not the obligation to perform certain Street Tree Maintenance to address issues that may involve public safety and the welfare of the public ("Public Safety Street Tree Maintenance"). The City may elect, at its own discretion, to bill to Owner the costs the City incurred to perform Public Safety Street Tree Maintenance covered by this Agreement ("Invoice"). The Owner shall pay the full amount invoice amount within 60-days of the date of Invoice. If after 60-days of non-payment of said Invoice, the amount listed on the Invoice shall constitute a lien on the Owner's Property subject to enforcement and foreclosure in accordance with California State law. However, the lien rights set forth in the declaration of restrictions required pursuant to Condition(s) 12d. of City Planning Commission Resolution No. 6581, shall apply Instead of the lien rights set forth in this Paragraph with respect to those portions of the Property that become annexed to the declaration of restrictions. 10. District. Pursuant to the conditions of approval. Project will be annexed into the District to cover the maintenance of certain improvements within City right-of-way. Among other requirements, District may collect assessments to perform Street Tree Maintenance. Under the terms of this Agreement, District will not assess costs for Street Tree Maintenance, provided Owner performs continued Street Tree Maintenance pursuant to the terms of this Agreement. 11. Failure to Maintain. In the event that the Owner fails, at any time to perform Street Tree Maintenance, the failure may be considered a breach of terms of this Agreement. The City is the sole arbiter to evaluate the Owner performance of Street Tree Maintenance. The City may elect, in the public's interest that the District take over Street Tree Maintenance. Upon the City's determination, the City shall provide one (1) written notice to inform Owner that the District intends take over Street Tree Maintenance covered by this Agreement. Within 90- days after receipt of said notice, the District will take over responsibility of Street Tree Maintenance and all property owners within the Project will, hereinafter, become annually assessed the current assessment rate most recently approved by City Council, consistent with the District requirements. The District, by assuming Street Tree Maintenance, shall not assume any obligation to maintain Other Items or Irrigation Improvements. Owner is responsible to maintain Irrigation Improvements and provide for ongoing irrigation necessary to maintain all landscaping in the Parkway, including but not limited to Street Trees as described above. 12, Homeowners Association. Owner represents to City that it intends to, and has the authority to, unilaterally transfer said Street Tree Maintenance to a Homeowners Association, as defined in Civil Code Section 1351(a) ("Association"), for the Project and that such transfer has been provided for in the Declaration, and that such document(s) include the Street Tree Maintenance provisions described herein. Upon or prior to transfer of obligations under this Agreement to an Association for a portion of the Property, that portion of the Property shall be annexed to the declaration of restrictions required pursuant to Condition(s) 12d., of City Planning Commission Resolution(s) No. 6581 which shall include provisions to collect adequate funds to perform Street Tree Maintenance covered by this Agreement. Transfer to an Association shall not reduce, limit, or modify the obligations and terms set forth in this Agreement. Nothing in this Agreement is intended to prevent the transfer to the Association of any obligations underthis Agreement 13. Capacity. Each party represents that the person(s) executing this Agreement on behalf of such party have the authority to execute this Agreement and by such signature(s) thereby bind such party, /// /// /// /// /// /// IN WITNESS WHEREOF, the undersigned has executed this instrument this day of. OWNER Property Development Centers LLC, a Delaware limited liability company By: Safeway, Inc. a Delaware corporation, its sole PTember CITY OF CARLSBAD a Municipal Corporation of the State of California By: (Sign Here) Matt Hall, Mayor (Print Name Here) As.d- l/iL^ fr^^rd (Print title) ATTEST Barbara (Print Name l^ere)' (Print title) FORM APPROVE! APPROVED AS TO FORM: CELIA A. BREWER City Attorney By Deputy City Attoniey (Proper notarial acknowledgment of execution by OWNER must be attached) (Chairman of the Board, President, or any Vice-President and secretary, any assistant secretary, the Chief Financial Officer, or any assistant treasurer must sign for corporations. If only one officer signs, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering that officer to bind the corporation.) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California County of Scxq T>(aXT^ DaSe T personally appeared before me, "Z:3r^\\eJ^\ CoVV\-ftS .K^^l^v^ A'^'OVC Ti , , \ Here Insert Name and Title of the Officer \ Name(s) of Signer{s) SHELLEY COLLINS ^ Commission # 1962114 t Notary Public - California I San Oiego County ^ My Comm. Expires Dec 25,20151 who proved to me on the^basis of satisfactory evidence to be the person(fi) whose name(^(||^ subscribed to the within instmment and acknowledged to me that (tOshe/they executed the same in b^s^ei#retr authorized capacit^(ies)r'and that by ^nsr/their signatur^(s7on the instmment the person(8)7 or the entity upon behalf of which the person(^^ted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Place Notary Seal Above WITNESS Signature: OPTIONAL - and and official seal. SIgnanjret Though the information below is not required by law, it may prove valuable to personifying on the document and could prevent fraudulent removal and reattachment of this fonv to another document Description of Attached Document Title or Type of Document: Document Date: _ Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: • Corporate Officer — Title(s): • Individual • Partner— • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: RIGHTTHUMBPRINT OF SIGNER Top of thumb here. Signer Is Repre^ Signer's Name^ • Corpofs^^fficer — Title(s): nindividual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here © 2010 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 CALiFORNiA ALL-PURPOSE ACKNOWLEDGIR^^ State of California County of _ on } beforeme. Q^^/fcf^^flI S/r?/" ^ ^ —i L_ UBiuio II'O, I fl Y '^f Hare Inprt Name ara/THIe of *e OHicer *-'ii —' ' , , . ^ . Hare Inpart Name and Title of the Officer personally appeared "ffrUm J) . f ^ Z/;,,^^^^^^^^^^ ANGELA PARLIAMENT Commission # 1935729 Notary Public - California }- sQ^^iTif Alameda County - ^""^^ My Comm. Expires Jun 5, 20151 who 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 thai he/shefthey executed the same In his/her/their authorized capaeity(les), and that by his/her/their signature(s) on the Instmment the person(s), or the entity upon behalf ot which the person(s) acted, executed the instrument I certify under PENALTY OF PERJURY under the laws of the State of Califomia that the foregoing paragraph is true and correct. WITNESS my hand and Place Notary Seal Abova Signature OPTIONAL Though the Intbrmation beloiv is not requitBd by /aw, it may piwe valuable to persons miylng 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: ^ _____ — ——— Document Date: '. —. . Number of Pages; Slgner<s) OtherThan Named Above: Capacity(ies) Claimed by Signer{s) Signer's Name; __ • Individual • Corporate Officer—Tille(s): • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: RIGHTTHUMBPRIfJT OF SIGNER Top of thumb herfe Signer Is Representing:- Signer's IMame: • Individual • Corporate Officer — Title(s);, • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other;. niGHTTHurviBPniiir OF SIGNER Top of thumb here Signer Is Represeriting:. ^^^^^^j^i^^^^^Ti^ODeSoto^^ ll=m»B907 ReordBKCBllToll-FrBe1-«X«7M8CT 10 Himevelopmant Ssrvices/Maslers/Bonda & Agraements/Developmenl Improvemenl Agreement REV. 01/26/13 March 20, 2014 JN.101290 EXHIBIT 'A' LEGAL DESCRIPTION PARCEL 2 OF CARLSBAD MINOR SUBDIVISION NO. 04-08 IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO PARCEL MAP THEREOF NO. 20982, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON JULY 11, 2012 AS DOCUMENT NO. 2012- 0402964, OF OFFICIAL RECORDS. Page 1 of 1 03 OQ I lU Q. 2 to § Zl 3 Q § to < U OC UJ o o Ul oc < o (/) (0 o o — OQ OQ i Ul 2 to i 3 i Q iij S ia E to < O OC UJ o o Ul oc < a tn z o (/) o o m ft I I 2 I —• o OQ OQ I UJ a. 2 to i 3 3 Q Ui § iii E iii S to < O OC UJ o O Ul oc < a (0 z o O o