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HomeMy WebLinkAboutProperty Development Centers LLC; 2013-12-12;AGREEMENT BETWEEN CITY AND APPLICANT FOR PAYMENT OF CONSULTANT COSTS ENVISION CARLSBAD (CASE # GPA 07-02/LCPA 07-02/ZCA 07-01 THIS AGREEMENT is made this IZ- day of December, 2013, between the CITY OF CARLSBAD, a municipal corporation of the State of California, hereinafter referred to as CITY, and Property Development Centers LLC, A Delaware Limited Liability Company, hereinafter referred to as APPLICANT. RECITALS WHEREAS, since 2008, the CITY has been engaged in a multi-year work program (ENVISION CARLSBAD) to comprehensively update its General Plan, Local Coastal Program, and Zoning Ordinance, which will, among other things, regulate the type, extent, and intensity of land uses within the City of Carisbad; and WHEREAS, the APPLICANT has property located within the City of Carisbad which is subject to land use regulation; and WHEREAS, the APPLICANT has recently requested that the CITY analyze a proposed change to the General Plan land use and/or zoning designation on its property as part of the work program; and WHEREAS, to date the CITY has expended considerable time, effort and money to draft updates to the General Plan, Local Coastal Land Use Plan, and land use policy and zoning maps; further, the CITY has determined that including APPLICANT'S proposed land use change for analysis at this late date will impose additional cost and delay to the work program; and LEGAL28464527.2 WHEREAS, on November 5, 2013, the CITY COUNCIL approved the APPLICANT'S request - along with those of two other property owners who similariy sought to have their properties included in the process (the OTHER ADDED OWNERS) - and directed staff to include the property for analysis in the work program, provided that the APPLICANT and the OTHER ADDED OWNERS pay their shares of additional costs related to technical analysis, document revisions, staff review and processing; and WHEREAS, APPLICANT agrees to pay to CITY a proportionate share of the amount necessary to perform the additional work. NOW, THEREFORE, in consideration ofthe covenants and conditions, it is agreed as follows: 1. The CITY will engage the fimn of Dyett and Bhatia, hereinafter referred to as "CONTRACTOR", to perform the necessary additional work in the preparation of the General Plan, land use and zoning maps, Local Coastal Land Use Plan, Climate Action Plan, and Program Environmental Impact Report to include for analysis purposes a potential General Plan land use and/or zoning designation change for that area more particulariy depicted upon a site map attached as Attachment 1 and made a part of this agreement. 2. It is understood that this AGREEMENT does not entitle the APPLICANT to any General Plan land use and/or zoning designation change for the property described in Attachment 1, nor does it obligate the CITY to actually make any such General Plan land use and/or zoning designation change. 3. It is understood that the CONTRACTOR services shall conform to LEGAL28464527.2 the Proposal attached as Attachment 2 and made a part of this agreement, and may require: a) Field exploration; b) Regular communication with City staff; c) Technical analyses by subconsultants and third parties d) Written reports; and e) Such other work necessary to properiy evaluate the proposed land use change as directed by the City Planner. 4. It is understood that the CITY will direct the CONTRACTOR to complete drafts and final documents at the eariiest feasible time. The CITY will apprise the APPLICANT of progress in the analysis and preparation of documents, and will notify APPLICANT of circumstances that would significantly delay or adversely affect completion of the work program. 5. The APPLICANT shall pay to the CITY a total of $23.122. of which $16.667 shall be reserved to pay for the consulting services described in Attachment 2, plus a small contingency; and $6.455 which shall be credited to the CITY's General Fund to cover staff time and overhead costs. The proportionate share is based on the total additional cost ($69.365) divided by the total number of applicants participating in the cost-sharing arrangement (three). 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. The 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 LEGAL28464527.2 CONTRACTOR services identified in Attachment 2 is less than the APPLICANT'S proportionate share advance, any surplus will be refunded to APPLICANT by the CITY. 6. Once this AGREEMENT is executed and funds placed with the CITY, APPLICANT will not be entitled to any refund except as provided in paragraph 4 above. 7. It is understood that the CONTRACTOR shall be an independent contractor of the CITY, and CITY shall not be liable for any negligent acts or omissions of the CONTRACTOR. The APPLICANT agrees to permit the CONTRACTOR to enter upon his property and to perform all work thereon as the CONTRACTOR deems necessary to complete the work described in Attachment 2. It is agreed that the APPLICANT will not interfere with the CONTRACTOR in the performance of such work or attempt to influence such CONTRACTOR during the course of his investigation and preparation of documents. 8. It is understood that the CITY will attempt to bring the General Plan, land use and zoning maps, Local Coastal Land Use Plan, Climate Action Plan, and Program Environmental Impact Report to Planning Commission and City Council as soon as possible, barring no delays from the APPLICANT. 9. If the CITY is 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 subsequent approval of the planning documents (described in paragraph 1 above) resulting from the inclusion of the General Plan land use and/or zoning designation depicted in Attachment 1, the APPLICANT shall be responsible and reimburse the CITY for legal fees and costs, in 4 LEGAL28464527.2 the appropriate proportionate share as set forth in this Section 9, that 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 its proportionate share as set forth in this Section 9 of any award of court costs or attorney fees made against CITY in favor of any third party resulting from the inclusion of the General Plan land use and/or zoning designation depicted in Attachment 1. APPLICANT'S "proportionate share" for purposes of this Section 9 shall mean: i) as to a claim pertaining exclusively to inclusion of APPLICANT'S property (reflected in Attachment 1) and neither of the OTHER ADDITIONAL OWNERS' properties, a 100% share; and ii) as to a claim pertaining to inclusion of both APPLICANT'S property (reflected in Attachment 1) and one or both of the OTHER ADDITIONAL OWNERS' properties, an equal pro rata share as between the APPLICANT'S property and such OTHER OWNER(S)' property or properties. This obligation survives until all legal proceedings have been concluded and continues even ifthe CITY's approval is not validated. LEGAL28464527.2 IN WITNESS WHEREOF, the parties hereto have executed this agreement on the day and year first above written. The individuals executing this Agreement and the instruments referenced in it on behalf of APPLICANT each represent and warrant that they have the legal power, right and actual authority to bind APPLICANT to the terms and conditions of this Agreement. APPLICANT CITY OF CARLSBAD, a municipal corporation of the State of California By: ^^vvI:> ^y|->-ffg^y tdO (print name/title) By: ig^ (sigrPhere) (print name/title) City Clerk If required by City, proper notarial acknowledgment of execution by applicant must be attached. If a corporation. Agreement must be signed 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. LEGAL28464527.2 APPROVED AS TO FORM: CELIA A. BREWER, City Attorney assistant City Attorney LEGAL28464527.2 ATTACHMENT 1 PROPERTY LOCATION Site Name/Location Requested Land Use Change Site Name/Location From To La Costa Town Sauare Office (north side of La Costa Ave and northern terminus of Calle Timiteo) APN: 223-050-7300 0 (Office) R-23 (15-23 du/ac)) LEGAL28464527.2 ATTACHMENT 2 SCOPE OF WORK 1. Environmental Impact Report Dyett & Bhatia will project housing units, population, etc. resulting from the land use changes, and provide information by Traffic Analysis Zones to Fehr and Peers. Fehr and Peers will coordinate with SANDAG and conduct a model run, and also disaggregate VMT information needed for air quality, GHG and other analysis. Several sections of the EIRs will need to be updated, including: • Maps that have land use information. • Information on buildout, jobs housing balance, population growth projections, etc. as part of project description, and Land Use, Population, and Housing sections. • Mobility: Text and tables, including information on traffic volumes, LOS, VMT, etc. will need to be updated. • Air Quality/GHG: Revise modeling based on new traffic information. Update text as needed. • Noise: Revise modeling based on new traffic information. Update text as needed. Future noise map will need to be updated. • Public Utilities: Revise projections based on new population projections. • Schools: Revise projections for different school districts based on new population. • Parks and Recreation: Update information on recreation needs resulting from updated population. 2. General Plan Maps that have land use infomiation will need to be updated — Opportunity Sites and Key Development Constraints; Land Use Map; all focus area maps where the new sites appear; future noise map (same as from EIR). All information relating to population, housing units, jobs-housing balance, park and school needs, air quality, noise etc. that appear in different chapters of the General Plan will need to be updated and checked. This will include changes to text, tables, and a read through of the document to ensure internal consistency. 3. Climate Action Plan The analysis, the results and the figures would all need to be updated in response to changes in population and job projections. Vehicle Miles Traveled (VMT) projections would need to be revised using the SANDAG models for the two scenarios incorporated in the Climate Action Plan (CAP), VMT with the pass-through traffic, and VMT excluding pass- through traffic. Both models used for the CAP—the EPIC and SEEC models—would need to be revised to reflect the new growth rates. The models would then in turn produce LEGAL28464527.2 revised values for the community and government operations forecasts. The quantification of the effect of state and federal policies. General Plan policies, and CAP GHG reduction measures would also have to be quantified using the new estimated population and job projections. Finally changes to tables, charts and graphs, and text would need to be made to reflect the revised information. 4. Local Coastal Program Land Use Plan While changes to this document will be fewer compared to others, land use maps, population information etc. would still need to be updated. 5. Post-Adoption Processing Make final adjustments to the LCP and the General Plan based on the City Council adoption actions. This will include adjustment to population and housing units, jobs-housing balance, growth management, park and school facility needs, as well as maps where the changed information would appear. The CAP and the EIR would not be updated, and no new traffic model runs would be conducted. Budget The anticipated budget for the above scope of work is $46,900, inclusive of the direct cost of the SANDAG model run. 1.EIR 2. General 3. CAP Plan 4. LCLUP 5. Post- adoption Total Dyett & $8,500 $4,500 $8,500 $1,200 $5,000 $27,700 Bhatia Dudek $10,200 $10,200 Fehr& $4,000 $4,000 Peers SANDAG $5,000 $5,000 (traffic modeling) $27,700 $4,500 $8,500 $1,200 $5,000 $46,900 LEGAL28464527.2 10 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California 1 County of 7) m.'p id a. —-L , • I r\ A/3 before me, ^/M /jj7^//(FT) AL^UFM(^ ' Dafe A ' Her*-Insert Name and Tifle of the Officer / ' Dafe A ' Herr Insert Name i personally appeared /ATTAJT. '// ZcZ/gS^TZ^ I Name(s) of Signer(s) KIM DIGUIDO V Commission # 1942500 t Notary Public - California 1 ^ Alameda County ^ My Comm. Expires Jun 27.20151 9 9 9 W 9 9 9 9 9 1^^^^^^^^ 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 ll seal. Place Notary Seal Above Signature:^ OPTIONAL - 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: Docunnent 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 • Individual Title(s): • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: RIGHT THUMBPRINT OF SIGNER Top of thumb here © 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 TfloMfd/l. On '^/Af3- before me, F/rtn A^^f^/F.7) /j/^'l Date /\ . t- Here Insert Nanne and Title of 1 personally appeared LjA^nAblT^ //jr^^/f 2f^ NanlB(s) of Signer(s KIM OIGUiOO \ Commission # 1942500 t Notary Public • California i ^ Alameda County ^ My Comm. Expiras Jun 27.20151 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 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 handyand official 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: 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