HomeMy WebLinkAboutPlaza Camino Real; 2009-12-23;AMENDMENT NO. I TO AGREEMENT BETWEEN ClTY AND PLAZA CAMINO REAL
FOR PAYMENT OF EIR CONSULTANT
EIR 09-02 PLAZA CAMINO REAL REVITALIZATION PROJECT
THIS AGREEMENT, made and entered into as of the 15~ day of n
, 2010, by and between the ClTY OF CARLSBAD, a municipal
corporation, hereinafter referred to as "City," and PLAZA CAMINO REAL, a California
limited liability partnership hereinafter referred to as "APPLICANT", shall serve to
amend the previous contract dated, December 23, 2009 attached hereto.
All provisions of the original contract with amendments shall remain in
effect, except that as outlined in the Consultant's revised proposal, dated January 4,
2010, 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 $5,060.00 for the
additional work, making the maximum fees payable a total of $200,406.00.
IN WITNESS WHEREOF we have hereunto set our hands and seals.
APPLICANT: PLAZA CAMINO REAL, a CITY OF CARLSBAD, a municipal
California limited partnership corporation of the State of California
By: PCRGP, L.P., a Delaware limited
partnership, its general partner
By: Plaza Camino Real, LLC, a Delaware
limited liability partnership, its general
partner
Bv: Westfield America Limited Partnership, a el aware limited partnership, its sole
member
By: Westfield U.S. Holdings, LLC, a
Rory. ~:\@ker, Assistant Secretary
ATTEST:
City Attorney Approved Version 0311 7/04
January 4,2010
Ms. Michele Masterson
City of Carlsbad
Planning Department
1635 Faraday Avenue
Carlsbad, CA 92008
Subject: Contract Augment to Modify Scope and Cost - Plaza Camino
Real EIR
Dear Ms. Masterson:
HELIX Environmental Planning, Inc. (HELIX) is submitting this letter
proposal to modify our existing agreement with the City of Carlsbad (Client)
to provide additional environmental consulting services for the Plaza Camino
Real Project EJR. The purpose of this letter is to request an amendment to the
existing contract amount of $195,346 for the preparation of the Plaza Camino
Real EIR, as identified in Attachments 2 and 3 of our contract dated
December 23, 2009. The services described herein for Task 2.1 were not
contemplated in our existing work plan and budget and Westfield has
requested that we augment our work plan to include geotechnical
reconnaissance report, as described below. No changes to the other tasks are
currently contemplated.
SCOPE OF SERVICES
Task I: Specific Plan and Technical Studv Review - No Change
Task 2: Drafl EZR - No Change
Task 2. I: Technical Studies
In addition to the technical studies specified in our work plan, HELIX will
expand our subcontract with Geocon to include the preparation of a geologic
reconnaissance report to support the EIR. The purpose of the geotechnical
reconnaissance by Geocon will be to identify geologic conditions or hazards
that could affect site development. Based on the Specific Plan location, it
appears as though the site is likely underlain with alluvium and slope wash,
although formational materials may be present along the southern boundary of
the Specific Plan area. As such, the primary geotechnical considerations will
be on the potential for liquefaction during a seismic event and compression
7578 El C~pn Boulevard, SSI/~ 200, b Mesa, CA 91 942 pholr~ (619) 462- 15 15 jzx (61 91 462-0992 uww hekxepi.rnrn @ a
Agreement to Ms. Michelle Masterson 1 E 1 )( January 4,2010
Page 2 of 3
during settlement. To complete the analysis, Geocon will review published
geologic maps and other geotechnical literature, perform geologic mapping of
any exposed portions of the Specific Plan area by an engineering geologist,
and document the findings of the analysis in a geotechnical reconnaissance
report to be summarized in the EIR.
Task 2.2: Draft EIR - No Change
Task 3: Final EIR - No Change
Task 4: Findinns/SOCRMMRP - No Change
Task 5: Meetings and Hearings - No Change
Task 6: Project Management - No Change
ASSUMPTIONS AND ADDITIONAL LIMITATIONS ON SCOPE OF
SERVICES
Costs associated with additional meetings, document noticing, out-of-
scope focused species surveys, additional permit preparation and
processing andlor other technical studies and reports ("additional work")
are not included within the scope of services required of HELIX under this
Agreement.
COST ESTIMATE AND PAYMENT PROCEDURES
HELIX is pleased to submit a not to exceed cost estimate of $5,060 for the
services outlined herein. Approval of this Augment would result in a revised
contract total of $200,406 ($195,346 + 5,060).
EXECUTION OF AGREEMENT
This quote is good for 30 days from the date of this letter. This Augment will
become effective upon HELIX'S receipt of written authorization from the
Client signed by an authorized representative in accordance with Section 6 of
our existing agreement with Client.
7578 El Cqon Boslevnrd. SN~~P 200, LA Mew, CA 91 942 phone (61 9) 462-1 5 15 fgx (61 91 462-0552 uwwWWhei~xept.corn @ a
Agreement to Ms. Michelle Masterson H[lI)( Januav4,20lo
Page 3 of 3
We look forward to continuing our work with you on this project. If you have
any questions concerning this proposal, please call Kim Baranek at (619) 462-
1515.
Sincerely,
Tamara S. Ching 1 /
Senior Vice President
7578 El Calon Bolrla~avd. Satre 200, La Mew, CA 91942 *phone (019) 462-1515 *fax (619) 462-0552 w.helmpl corn 00 a
Exhibit 2
AGREEMENT BETWEEN CITY AND APPLICANT
FOR PAYMENT OF EIR CONSULTANT
EIR 09-02 PLAZA CAMINO REAL REVITALIZATION PROJECT
THfS AGREEMENT is made this (P>* day of ^(Le^/oU^ .20 Of , between the
CITY OF CARLSBAD, a municipal corporation of the State of California, hereinafter referred to
as CITY, and PLAZA CAMINO REAL, a California limited partnership hereinafter referred to as
"APPLICANT".
RECITALS
WHEREAS, the APPLICANT has filed with the CITY a request for approval of a
proposed project identified as Plaza Camino Real Revitalization project 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 HELIX Environmental Planning, Inc.
hereinafter referred to as "CONTRACTOR" to perform the necessary work in the processing
and monitoring of the Environmental Impact Report for that area more particularly depicted upon
a site map attached as Attachment 1 and made a part of this agreement.
2. It is understood that the CONTRACTOR services shall conform to the
Proposal attached as Attachment 2 and made a part of this agreement, and may require:
a) Field exploration;
b) Weekly communication with the City staff;
c) Written reports; and
1 Approved Revisions 12/10/09
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 $195,346 as payment on account for the actual cost
of the CONTRACTOR'S services. CITY will provide APPLICANT copies of all CONTRACTOR'S
invoices upon receipt. 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.
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 the
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 the investigation and report.
6. It is understood that the CONTRACTOR'S responsibility will be solely to
the CITY, and that the CONTRACTOR'S accountability will be solely to the CITY, and not the
2 Approved Revisions 12/10/09
APPLICANT, who is not an intended beneficiary of the CITY'S agreement with the
CONTRACTOR for the processing and monitoring of the Environmental Impact Report.
7. 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.
8. 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. If the Applicant
agrees to a rescission of its permits and entitlements, the Applicant is not obligated to provide or
pay for a defense under this contract.
Approved Revisions 12/10/09
IN WITNESS WHEREOF, the parties hereto have executed this agreement on the day
and year first above written.
Executed by APPLICANT this to day of 20
APPLICANT:
PLAZA CAMINO REAL, a California limited
partnership
By: PCRGP, L.P., a Delaware limited
partnership, its general partner
By: Plaza Camino Real, LLC, a Delaware
limited liability partnership, its general
partner
By: Westfield America Limited Partnership, a
Delaware limited partnership, its sole
member
By: Westfield U.S. Holdings, LLC, a
Delaware limited liability company, its
general partner
(Name of Applicant)
.-•-7
By:
(sign here)/
Rory. A. Pa ssistant Secretary
CITY OF CARLSBAD, a municipal
corporation of the State of California-»
City Manager or Mayor
ATTEST:
(Proper notarial acknowledgment of execution by Contractor must be attached.)
(Chairman, president or vice-president and secretary, assistant secretary, CFO or assistant
treasurer must sign for corporations. Otherwise, the corporation must attach a resolution
certified by the secretary or assistant secretary under corporate seal empowering the officer(s)
signing to bind the corporation.)
(If signed by an individual partner, the partnership must attach a statement of partnership
authorizing the partner to execute this instrument).
APPROVED AS TO FORM:
RONALD R. BALL, City Attorney
MA/A^
ssistant City Attorney
Approved Revisions 12/10/09
Agreement between City and Applicantn
For Payment of EIR Consultant
STATE OF CALIFORNIA)
COUNTY OF LOS ANGELES)
) ss.
On December 10, 2009, before me, Annie M. Zettel, a Notary Public
personally appeared Rory A. Packer
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 official seal.
(jSnSignature (Seal)
ANNIE M. ZETTEL
Commission # 1794435
Notary Public - California
los Angeles County
' fgi, 2012
ATTACHMENT 1
V
SITEMAP
NOT TO SCALE
Plaza Camino Real Revitalization
EIR 09-02 / SP 09-01 / SDP 09-04 / SUP 09-07
Attachment 2
REVISED Cost Proposal Assumptions - Plaza Camino Real Revitalization Project EIR
HELIX Environmental Planning, Inc.
HELIX COST PROPOSAL
HELIX proposes to provide the services described in our revised Detailed Work Program (dated
11/17/09) for a not to exceed fee of $195,346. A breakdown of these fees by task and staff is provided
below in Table 2. Our 2009 schedule of fees is attached for reference purposes.
The following assumptions were made in estimating the cost to complete the EIR:
• The NOP will be prepared by the City and several issues identified in the REP will end up in
the "Effects Found Not to be Significant" section within the EIR, including biological
resources, cultural and paleontological resources, geology/soils, hazards/hazardous materials,
mineral resources, public services, recreation and utilities and service systems. This approach
to EIR scoping results in time and cost savings to the City since fewer topics will be detailed
in the body of the EIR.
• The EIR will be focused on the following topics with the potential for significant impacts:
aesthetics, air quality/greenhouse gases, hydrology/water quality, land use and planning,
noise, and transportation/traffic. Additional fees would be needed to shift other topics into
the body of the EIR.
• The City will provide HELIX with current available digital baseline data for producing all
maps and graphics contained in the Specific Plan or applicant submittal package, which
should be submitted in one of the following formats: .dxf, .dwg (AutoCAD), .dgn
(Microstation), .eOO (Arclnfo export coverages), or .shp (ArcView shapefiles). In some cases,
.pdf files will be acceptable.
• The City will provide HELIX with bound and electronic copies of the technical study related
to traffic and parking. The technical study will address traffic at a 'sufficient level of detail to
support the EIR impact analysis for the proposed project.
• Westfield will provide a Geotechnical and Geologic Survey, Drainage Report, Storm Water
Management Plan, and Visual Simulations and HELIX will provide third-party review of
those technical studies. Any report revisions required from the peer review process will be the
responsibility of Westfield's consultants to implement.
• Once preparation of the first screencheck version of technical reports and/or the Draft EIR has
begun, no changes to the project description and associated assumptions will occur such that
major revisions to the project description or re-analysis of any environmental issue will be
required.
• No biological or cultural resources field surveys will be required to evaluate potential project
impacts.
• If revisions to technical appendices drafted by HELIX or its subconsultants are warranted
after public review, HELIX will discuss the extent of changes with the City and determine
whether they are within the scope of work detailed in the contract.
• Two screenchecks of the Draft EIR, Final EIR and MMRP/Findings/SOC will be submitted.
• Meetings will be billed on a time-and-materials basis based on attendance requests from the
City; unused meeting time will not be billed.
• Costs associated with additional meetings, and/or additional technical studies and reports
("additional work") are not included within the scope of services required of HELIX under this
proposal.
1
11/17/2009
REVISED Cost Proposal Assumptions - Plaza Camino Real Revitalization Project EIR
HELIX Environmental Planning, Inc.
HELIX is not responsible for the preparation of property owner mailing lists/labels, charges
associated with the publication of notices in local newspapers, or document filing fees (such as
County Clerk filing fees and California Department of Fish and Game environmental review
filing fees). HELIX is not responsible for distributing the Draft and Final EIRs.
The assumed cost of reproducing the Draft EIR is based on approximately 250 pages and 50
supporting graphics. The technical appendices will consist of approximately 300 pages with
up to 10 color pages. The numbers of copies of deliverable documents included in the current
cost estimate is specified in the scope of services. If City staff request additional copies of
documents, these will be produced and billed on a time and materials basis.
HELIX will prepare responses to up to 50 substantive comments.
The scope of services related to the Findings and Statement of Overriding Considerations do
not include generating overriding considerations related to financial feasibility.
Public hearings regarding the environmental document will be held at City Hall, and the City
will supply any required audio-visual equipment.
Project management will require up to eight hours per month of HELIX's Project Manager
time over a period of 12 months. If there are unanticipated delays in the schedule unrelated
to HELIX, additional budget may be needed.
11/17/2009
STATE OF CALIFORNIA )
SS:
COUNTY OF LOS ANGELES )
Date: December _/g, 2009
Being duly sworn, deposes and says:
1. That I, Elizabeth P. Satterthwaite, Senior Vice President and Assistant
Secretary of Westfield U.S. Holdings, LLC, a Delaware limited liability
company, the sole owner of CMF, Inc., the sole member of CMF PCR
LLC, a Delaware limited liability company.
2. Rory A. Packer, as Assistant Secretary of Westfield U.S. Holdings, LLC,
is duly authorized to execute documents on behalf of CMF PCR LLC, as
Applicant and Owner.
CMF PCR LLC, a Delaware limited liability company
By: CMF, Inc., a Delaware limited liability company, its sole member
By: Westfield U.S. Holdings, LLC, a Delaware limited liability company, its sole
owner
By:
Elizabeth P. Satterthwaite
Senior Vice President and
Assistant Secretary
If
STATE OF CALIFORNIA)
COUNTY OF LOS ANGELES)
) ss.
On (j)jLtJts
Public
personally appeared
10. 3001 before me, Ann,'t //. Ze,, a Notary
(P> cJL/£r-
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 official seal.
Signature Limm fa (Seal)
_I_JLJL.I • •it'*r''-J-f
ANNIE M. ZETTEL L
Commission* 1794435 *
Notary Public - California |
Los Angeles County 1
^CofjmExpfr*Apf2i^2012 I
CMF, Inc.
Structure at 12/22/08*
See WEA Group Structure Overview Chart
Westfield US Holdings, LLC
CMF
(QF
100%
, Inc.
*S)
CMF UTC
North LLC
Holds No
Property
MP North\
LLC J
Rob-
-—--
Ground Lease
100%
CMF MP South>
LLC j
CMF UTC
South LLC
Holds No
Property
CMF NCF
South LLC
CMF Santa
Anita LLC Ground Lease
With City
CMF NCF
North LLC
Ground Lease
with City
CMF WheatonN
Borrower LLC )»^ ... __S
CMF PCR LLC
Rob-Ma^
Fee
Rob-Ma^
^. '-^^
Ground Lease
'CMF RichlandN
LLC J
Lazarus
Fee"Revised to reflect the following 2008 Transactions:
Contribution by WEA of CMF Fox Hills LLC to WALP on 2/5/08
Contribution by WEA of the ground lease at Wheaton by to Wlieaton Plaza Regional Shopping Center
LLP on 3/14/08. On 6/13/08 CMF Wheaton LLC was dissolved.
Contribution by WEA of CMF PWC LLC to WALP on 5/1/08
Contribution by WEA on 12/22/08 of the fee interest in the Rob-May and Macys store owned by CMF
UTC North LLC and CMF UTC South LLC Respectively. The properties were contributed to WALP and
ultimately contributed to University Towne Center, LLC (See UTC/Valley Fair chart for further details).
Legend:
/'Partnership^
V^ or LLC J
STATE OF CALIFORNIA )
SS:
COUNTY OF LOS ANGELES )
Date: December /Q, 2009
Being duly sworn, deposes and says:
1. That I, Elizabeth P. Satterthwaite, Senior Vice President and Assistant
Secretary of Westfield U.S. Holdings, LLC, a Delaware limited liability
company, the general partner of Westfield America Limited Partnership, a
Delaware limited partnership, the sole member of Plaza Camino Real
LLC, a Delaware limited liability company, the general partner of
PCRGP, L.P., a Delaware limited liability company, the general partner of
PLAZA CAMINO REAL, a California limited partnership.
2. PLAZA CAMINO REAL is the Owner of Westfield Plaza Camino Real in
Carlsbad, California.
3. Rory A. Packer, as Assistant Secretary of Westfield U.S. Holdings, LLC,
is duly authorized to execute documents on behalf of PLAZA CAMINO
REAL as Applicant and Owner.
PLAZA CAMINO REAL, a California limited partnership
By: PCRGP, L.P., a Delaware limited partnership its general partner
By: Plaza Camino Real LLC, a Delaware limited liability company, its general partner
By: Westfield America Limited Partnership, a Delaware limited partnership, its sole
member
By: Westfield U.S. Holdings, LLC, a Delaware limited liability company, its general
partner
Elizabeth P. Satterthwaite
Senior Vice President and
Assistant Secretary
"52.
STATE OF CALIFORNIA)
COUNTY OF LOS ANGELES)
) ss.
On
Public
personally appeared
c2#0<?before me,fl?.a Notary
P-
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 official seal.
(JI^T^U>Signature ft).(Seal)
ANNIE M _
Commission # i '9/1435
Notary Puoilc - California
Los Angeies County
.2013
Plaza Camino Real
Structure at 9/7/2006
See Separate Chart for
Ownership above WALP
Westfield America Limited
Partnership (The OP)
49.9%
LP*
99%
LP
L
100%
Plaza Camino Real LLC
1%GP
PCRGP, L.P.Westfield Head LP 1
33.267% GP *
16.833% LP
Plaza Camino Real
(California Limited Partnership)
100%
WestfieldShoppingtown
Plaza Camino Real
* Reflects Capital Percentage
Notes:
1. See Westfield Head LP Chart for Ownership Details
2. Structure Reflects the 3rd Parties Contributions of
their 49.9% interest (by capital) in Plaza Camino Real
in exchange for WALP units.
100%
Plaza Camino \
Service LLC )
Legend:
/^Partnership^
V or LLC J
Plaza Camino Real 9-7-06.vsd