Loading...
HomeMy WebLinkAboutDS Properties 18 LP; 2023-10-05;PROPERTY ACCESS AND INDEMNITY AGREEMENT This Property Access and Indemnity Agreement ("Agreement"), dated this J;;W day of October, 2023, is between the City of Carlsbad ("City"), a California charter city, whose principal address is 1635 Faraday Avenue, Carlsbad, CA, 2008, Attention: Public Works Department, and DS Properties 18, LP, a Delaware limited partnership ("DS"), whose address is 12520 High Bluff Drive, Suite 375, San Diego, CA 92130, Attention: Management Office. City and DS are referred to collectively herein as the "Parties." RECITALS A. Property. DS is the owner or manager of certain real property located within the commercial shopping center commonly known as Poinsettia Village in the City of Carlsbad at 7020 -7176 Avenida Encinas, Carlsbad, CA 92011 and owns parcels with APNs 214-430-21 and 214-430-24 ("Property"). DS also owns other parcels around the Property with APNs 214- 430-14, 214-430-16, 214-430-22 ("Other Property"), and manages those with APNs 214-430- 13, 214-430-15 , 214-430-19, 214-430-23 , 214-430-25, 214-430-26, and 214-430-27 owned by others ("Other Owners"), pursuant to recorded instruments including but not limited to that certain First Amendment and Restatement of Operation and Reciprocal Easement Agreement dated December 30, 1988 and that certain Agreement of Covenants, Restrictions and Easements Relating to Parcel Sale dated January 7, 2010 (said recorded documents, whether explicitly referenced herein, being the "REAs"). B. Project. City is performing certain works of public improvement known as the Avenida Encinas Coastal Rail Trail and Pedestrian Improvements, Segment 2, Project No. CIP 6004 ("Project"). C. Work. City desires to have permission to access the Property in order to make improvements as part of the Project in accordance with the City's Permission for Right of Entry marked as Exhibit A and attached hereto, including but not limited to sidewalk improvements to comply with The Americans with Disabilities Act of 1990 ("ADA") and irrigation repair for the purpose set forth in Recital B above (collectively, the "Work"). C. Access Approval. DS is willing to grant permission to City, its employees, agents, and contractors, to access the Property to the extent required for City to perform the Work, subject to the terms and conditions of this Agreement. Now, therefore, for and in consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows : Poinsettia Village -Project 6004 Access Agreement August 7, 2023 1 AGREEMENTS 1. Recitals. Each of the above Recitals is hereby incorporated into and made a part of the terms of this Agreement. 2. Access. 2.1 Work. DS grants permission, subject to the provisions ohhis Agreement, to City, its employees, agents, contractors, and consultants, to enter the Property for the sole purpose of undertaking the Work. City, for itself, its employees, agents, contractors, and consultants, acknowledges and agrees that no provision of this Agreement shall be interpreted to give such parties any other right to use or access the Property. 2.2 Procedures. City, its employees, agents, contractors, and consultants shall perform the Work on the Property in a good and safe manner per the approved engineering plans and specifications in such a way as to minimize impacts on, access to and from the Property by DS ' invitees, and shall take all necessary precautions to prevent damage to the Property and any improvements thereon. City shall engage such professional personnel as are needed to ensure that Work performed on and around the Property is done in conformity with the best practices for the type of work being performed. City shall take all reasonable steps necessary to prevent damage to the Property from City's Work on and around the Property. 2.3 Access to Property. City shall provide, or cause to be provided, traffic control around the Property during all times any of the Work is being done . City, its employees, agents, contractors and consultants will not, at any time, take any action that would wholly prevent pedestrian or vehicular ingress and egress to and from the Property and will use their best efforts to avoid reducing or impeding access to and from the Property between November 1, 2023 , and January 15, 2024 ("Holiday Period"). 2.4 City Expense. City acknowledges and agrees it and shall be responsible for any and all costs and expenses incuned in performing the Work and DS shall have no responsibility for any of the same. 3. Term and Termination. 3.1 Term of Agreement. This Agreement and City right to access the Property shall begin on the date that is ten (10) business days following written notice to DS and terminate on the date that is one hundred eighty (180) days thereafter ("Term"), unless otherwise sooner terminated or amended pursuant to the te1ms of this Agreement. 3 .2 Time of Work. City will instruct its agents, employees, contractors, and consultants to maintain communication with DS's designated agent, Pam Aguine, Prope1iy Manager at (858) 793-5753, paguine@firstwash.com or designee and to undertake the Work consistent with the terms of this Agreement. City shall not cause or permit the Work on the Prope1iy to be perfo1med in a manner that creates a nuisance to DS' tenants, their invitees, or customers or the Other Owners and occupants. Poinsettia Village -Project 6004 Access Agreement August 7, 2023 2 3.3 Termination. In the event City fails to perform the Work during the Term or fails to perform the Work in a safe and workmanlike manner, DS may terminate this Agreement after providing the City with five (5) business days to cure after providing written notice to City. If the City fails to remedy to DS's satisfaction, DS may terminate this Agreement upon three (3) business days' written notice to City. 4. Liens. City agrees that DS shall have no responsibility for any cost or expense in connection with the Work. City shall not place or permit to be placed any mechanics' lien or materialmen's lien on the Property. City shall hold DS and the Property harmless from any and all loss, costs, damage and expense of any kind, including attorney's fees, which arise out of or on account of any mechanic's lien or materialmen's lien related to the Work. 5. Safety. City shall be solely responsible for the safety of any person that enters the Property on City's behalf under this Agreement and, with respect to conditions created by City, for all other persons. City shall be solely responsible for the acts and omissions of its employees, contractors, consultants, and agents while on the Property. 6. Indemnity. City does hereby agree to indemnify, defend with counsel acceptable to City, reimburse and hold harmless DS, its parent companies, Global Realty Investors, LLC, First Washington Realty, Inc., and their respective officers, members, directors, employees, agents, successors, and assigns ("Indemnified Parties") from and against any and all claims, demands, fines, damages (including consequential, incidental and special damages), losses, obligations, liabilities, costs (including the costs of complying with any judicial or administrative order), and expenses (including expert witness costs and fees and attorneys" fees related to entering the Property and completion of the Work (collectively "Losses") in conjunction with any administrative proceeding, trial, appeal, or petition for review) arising out of the Work on the Property, except that the City shall not be liable for Losses to the extent arising out of the negligence or intentional acts of DS, its agents or employees. City's obligations herein concerning Losses shall extend to any claims by third parties that the Work was not constructed or installed as required by the ADA, as in effect during the Term of this Agreement, and all rules and regulations issued under that law, as well as any under other applicable laws related to construction-related accessibility standards. DS does hereby agree to indemnify, defend with counsel acceptable to City, reimburse and hold harmless City and its employees, agents, successors, and assigns from and against any and all Losses arising out of the negligence or intentional acts of DS, its agents or employees, including for any Losses pertaining to the on- going maintenance obligations ofDS following completion of the Work. 7. Insurance. City shall procure and maintain or cause to be procured and maintained during the Term of this Agreement and for a period of one (1) year thereafter insurance pursuant to and in the. amounts and form set forth in Exhibit B. 8. Restoration. Prior to the completion of the Work, City will have any and all portions of the Property which have been disturbed as a result of the Work repaired and/or restored to at least as good a condition as existed prior to City's entry onto the Property using materials of equal or better quality as previously existed. The repair and/or restoration work Poinsettia Village -Project 6004 Access Agreement August 7, 2023 3 shall include, without limitation, repair and/or replacement of any fencing, irrigation equipment, and landscaping. 9. Ownership and Maintenance. Upon its completion, the results of the Work on the Property shall become the property of DS and City shall have no ownership rights or maintenance obligations thereto. Promptly upon completion of the Work, City shall provide DS with copies of all specification sheets, manuals and similar documents related to the materials included in the Work and shall assign to DS all warranties related to the Work. 10. Survival of Terms. All rights or obligations of the Parties set forth in Section 6 which by its nature are continuing rights and obligations, shall survive the expiration or termination of this Agreement to the full extent necessary for their enforcement and the protection of the Indemnified Parties. 11. Specific Performance. If City neglects or refuses to carry out this Agreement according to its terms, DS shall be entitled to such remedies for breach of contract as may be available under applicable law. 12. Assignment. City's rights under this Agreement are not assignable. In the event that DS transfers its interest in the Property, City shall not be relieved of any of its obligations under this Agreement. 13. Compliance with Laws. The Work and any access to the Property under this Agreement shall comply and be performed in accordance with all applicable federal, state, and local statutes, regulations, and ordinances including, without limitation, any governing municipal agency 's requirements for permits in connection with any of the Work. 14. Integration. This Agreement represents the entire understanding of DS and the City as to those matters contained in this Agreement, and supersedes and cancels any prior oral or written understanding, promises or representations. This Agreement may not be modified or altered except in writing signed by both Parties. This is an integrated Agreement. 15. Waiver. The failure of DS or City to insist on the strict performance of any provision of this Agreement or to exercise any right, power or remedy upon a breach of any provision of this Agreement shall not constitute a waiver of any provision of this Agreement or limit DS or City 's right thereafter to enforce any provision or exercise any right. 16. Severability. Should any provision of this Agreement at any time conflict with any law, ruling, or regulation and be unenforceable, then that provision shall continue in effect only to the extent that it remains valid. In the event any provision of this Agreement becomes thus inoperative, the remaining provisions shall remain fully effective. 17. Counterparts/Facsimile. This Agreement may be executed in any number of counterpmis, each of which, when fully executed and delivered, shall be deemed an original, but such counterparts together shall constitute but one and the same instrument. Facsimile transmission of any signed original document, and retransmission of any signed facsimile Poinsettia Village -Project 6004 Access Agreement August 7, 2023 4 transmission, shall be the same as delivery of an original. At the request of either party, the Parties shall confirm facsimile transmitted signatures by signing an original document. 18. Notice. Any notice given pursuant to this Agreement shall be in wntmg addressed to the recipient at the address shown in the first paragraph of the Agreement, as such address may have been changed by written notice. Notice shall be (a) mailed by certified mail with return receipt requested, postage prepaid, or (b) delivered in person or by nationally recognized overnight courier. Any notice sent by mail, in person or by courier shall be deemed given when delivery is first attempted. Notice given to a party in any manner not specified above shall be effective only if and when received by the addressee as demonstrated by objective evidence in the possession of the sender. 19. Jurisdiction and Venue. This Agreement shall be interpreted in accordance with the laws of the State of California. Any action at law or in equity brought by either of the Parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a comi of competent jurisdiction in the County of San Diego, State of California, and the Parties waive all provisions of law providing for a change of venue in these proceedings to any other county. [ signatures on following page] Poinsettia Village -Project 6004 Access Agreement August 7, 2023 5 In Witness Whereof, the Parties have executed this Agreement to be effective on the date first above written. By: Name: Its: [ • / ~ C Date: 4 Attest: ~ SHERRY FREISINGER r City Clerk APPROVED AS TO FORM: GINA uty City Attorney Poinsettia Village -Project 6004 Access Agreement August 7, 2023 6 DS Properties 18 LP, a Delaware limited partnership By: Commercial Property DSRG, LLC, a Delaware limited liability company, Its General Partner By: Property Management DSRG, LLC, a California limited liability company, Its Sole Member By: Donahue Schriber Realty Group, L.P., a Delaware limited partnership, Its Sole Member By: GRI Pioneer, LLC, a Delaware limited liability company, Its General Partner By: Global Retail Investors, LLC, a Delaware limited liability company, Its Sole Member By: First Washington Realty, LLC, By: a Delaware limited liability company, Its Manager Henry A. Avila, CSM, RPA Senior Vice President, Operations Poinsettia Village -Project 6004 Access Agreement August 7, 2023 7 Poinsettia Village – Project 6004 Access Agreement August 7, 2023 1 PROPERTY ACCESS AND INDEMNITY AGREEMENT This Property Access and Indemnity Agreement (“Agreement”), dated this ___ day of October, 2023, is between the City of Carlsbad (“City”), a California charter city, whose principal address is 1635 Faraday Avenue, Carlsbad, CA, 2008, Attention: Public Works Department, and DS Properties 18, LP, a Delaware limited partnership (“DS”), whose address is 12520 High Bluff Drive, Suite 375, San Diego, CA 92130, Attention: Management Office. City and DS are referred to collectively herein as the “Parties.” RECITALS A. Property. DS is the owner or manager of certain real property located within the commercial shopping center commonly known as Poinsettia Village in the City of Carlsbad at 7020 – 7176 Avenida Encinas, Carlsbad, CA 92011 and owns parcels with APNs 214-430-21 and 214-430-24 (“Property”). DS also owns other parcels around the Property with APNs 214- 430-14, 214-430-16, 214-430-22 (“Other Property”), and manages those with APNs 214-430- 13, 214-430-15, 214-430-19, 214-430-23, 214-430-25, 214-430-26, and 214-430-27 owned byothers (“Other Owners”), pursuant to recorded instruments including but not limited to thatcertain First Amendment and Restatement of Operation and Reciprocal Easement Agreementdated December 30, 1988 and that certain Agreement of Covenants, Restrictions and Easements Relating to Parcel Sale dated January 7, 2010 (said recorded documents, whether explicitly referenced herein, being the “REAs”). B.Project. City is performing certain works of public improvement known as theAvenida Encinas Coastal Rail Trail and Pedestrian Improvements, Segment 2, Project No. CIP 6004 (“Project”). C.Work. City desires to have permission to access the Property in order to makeimprovements as part of the Project in accordance with the City’s Permission for Right of Entry marked as Exhibit A and attached hereto, including but not limited to sidewalk improvements to comply with The Americans with Disabilities Act of 1990 (“ADA”) and irrigation repair for the purpose set forth in Recital B above (collectively, the “Work”). C.Access Approval. DS is willing to grant permission to City, its employees,agents, and contractors, to access the Property to the extent required for City to perform the Work, subject to the terms and conditions of this Agreement. Now, therefore, for and in consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 5th DocuSign Envelope ID: D1871A49-0E9A-4E0E-A067-9A2B4D12C743 Poinsettia Village – Project 6004 Access Agreement August 7, 2023 2 AGREEMENTS 1. Recitals. Each of the above Recitals is hereby incorporated into and made a part of the terms of this Agreement. 2. Access. 2.1 Work. DS grants permission, subject to the provisions of this Agreement, to City, its employees, agents, contractors, and consultants, to enter the Property for the sole purpose of undertaking the Work. City, for itself, its employees, agents, contractors, and consultants, acknowledges and agrees that no provision of this Agreement shall be interpreted to give such parties any other right to use or access the Property. 2.2 Procedures. City, its employees, agents, contractors, and consultants shall perform the Work on the Property in a good and safe manner per the approved engineering plans and specifications in such a way as to minimize impacts on, access to and from the Property by DS’ invitees, and shall take all necessary precautions to prevent damage to the Property and any improvements thereon. City shall engage such professional personnel as are needed to ensure that Work performed on and around the Property is done in conformity with the best practices for the type of work being performed. City shall take all reasonable steps necessary to prevent damage to the Property from City’s Work on and around the Property. 2.3 Access to Property. City shall provide, or cause to be provided, traffic control around the Property during all times any of the Work is being done. City, its employees, agents, contractors and consultants will not, at any time, take any action that would wholly prevent pedestrian or vehicular ingress and egress to and from the Property and will use their best efforts to avoid reducing or impeding access to and from the Property between November 1, 2023, and January 15, 2024 (“Holiday Period”). 2.4 City Expense. City acknowledges and agrees it and shall be responsible for any and all costs and expenses incurred in performing the Work and DS shall have no responsibility for any of the same. 3. Term and Termination. 3.1 Term of Agreement. This Agreement and City right to access the Property shall begin on the date that is ten (10) business days following written notice to DS and terminate on the date that is one hundred eighty (180) days thereafter (“Term”), unless otherwise sooner terminated or amended pursuant to the terms of this Agreement. 3.2 Time of Work. City will instruct its agents, employees, contractors, and consultants to maintain communication with DS’s designated agent, Pam Aguirre, Property Manager at (858) 793-5753, paguirre@firstwash.com or designee and to undertake the Work consistent with the terms of this Agreement. City shall not cause or permit the Work on the Property to be performed in a manner that creates a nuisance to DS’ tenants, their invitees, or customers or the Other Owners and occupants. DocuSign Envelope ID: D1871A49-0E9A-4E0E-A067-9A2B4D12C743 Poinsettia Village – Project 6004 Access Agreement August 7, 2023 3 3.3 Termination. In the event City fails to perform the Work during the Term or fails to perform the Work in a safe and workmanlike manner, DS may terminate this Agreement after providing the City with five (5) business days to cure after providing written notice to City. If the City fails to remedy to DS’s satisfaction, DS may terminate this Agreement upon three (3) business days’ written notice to City. 4. Liens. City agrees that DS shall have no responsibility for any cost or expense in connection with the Work. City shall not place or permit to be placed any mechanics’ lien or materialmen’s lien on the Property. City shall hold DS and the Property harmless from any and all loss, costs, damage and expense of any kind, including attorney’s fees, which arise out of or on account of any mechanic’s lien or materialmen’s lien related to the Work. 5. Safety. City shall be solely responsible for the safety of any person that enters the Property on City’s behalf under this Agreement and, with respect to conditions created by City, for all other persons. City shall be solely responsible for the acts and omissions of its employees, contractors, consultants, and agents while on the Property. 6. Indemnity. City does hereby agree to indemnify, defend with counsel acceptable to City, reimburse and hold harmless DS, its parent companies, Global Realty Investors, LLC, First Washington Realty, Inc., and their respective officers, members, directors, employees, agents, successors, and assigns (“Indemnified Parties”) from and against any and all claims, demands, fines, damages (including consequential, incidental and special damages), losses, obligations, liabilities, costs (including the costs of complying with any judicial or administrative order), and expenses (including expert witness costs and fees and attorneys” fees related to entering the Property and completion of the Work (collectively “Losses”) in conjunction with any administrative proceeding, trial, appeal, or petition for review) arising out of the Work on the Property, except that the City shall not be liable for Losses to the extent arising out of the negligence or intentional acts of DS, its agents or employees. City’s obligations herein concerning Losses shall extend to any claims by third parties that the Work was not constructed or installed as required by the ADA, as in effect during the Term of this Agreement, and all rules and regulations issued under that law, as well as any under other applicable laws related to construction-related accessibility standards. DS does hereby agree to indemnify, defend with counsel acceptable to City, reimburse and hold harmless City and its employees, agents, successors, and assigns from and against any and all Losses arising out of the negligence or intentional acts of DS, its agents or employees, including for any Losses pertaining to the on-going maintenance obligations of DS following completion of the Work. 7. Insurance. City shall procure and maintain or cause to be procured and maintained during the Term of this Agreement and for a period of one (1) year thereafter insurance pursuant to and in the amounts and form set forth in Exhibit B. 8. Restoration. Prior to the completion of the Work, City will have any and all portions of the Property which have been disturbed as a result of the Work repaired and/or restored to at least as good a condition as existed prior to City’s entry onto the Property using materials of equal or better quality as previously existed. The repair and/or restoration work DocuSign Envelope ID: D1871A49-0E9A-4E0E-A067-9A2B4D12C743 Poinsettia Village – Project 6004 Access Agreement August 7, 2023 4 shall include, without limitation, repair and/or replacement of any fencing, irrigation equipment, and landscaping. 9. Ownership and Maintenance. Upon its completion, the results of the Work on the Property shall become the property of DS and City shall have no ownership rights or maintenance obligations thereto. Promptly upon completion of the Work, City shall provide DS with copies of all specification sheets, manuals and similar documents related to the materials included in the Work and shall assign to DS all warranties related to the Work. 10. Survival of Terms. All rights or obligations of the Parties set forth in Section 6 which by its nature are continuing rights and obligations, shall survive the expiration or termination of this Agreement to the full extent necessary for their enforcement and the protection of the Indemnified Parties. 11. Specific Performance. If City neglects or refuses to carry out this Agreement according to its terms, DS shall be entitled to such remedies for breach of contract as may be available under applicable law. 12. Assignment. City’s rights under this Agreement are not assignable. In the event that DS transfers its interest in the Property, City shall not be relieved of any of its obligations under this Agreement. 13. Compliance with Laws. The Work and any access to the Property under this Agreement shall comply and be performed in accordance with all applicable federal, state, and local statutes, regulations, and ordinances including, without limitation, any governing municipal agency’s requirements for permits in connection with any of the Work. 14. Integration. This Agreement represents the entire understanding of DS and the City as to those matters contained in this Agreement, and supersedes and cancels any prior oral or written understanding, promises or representations. This Agreement may not be modified or altered except in writing signed by both Parties. This is an integrated Agreement. 15. Waiver. The failure of DS or City to insist on the strict performance of any provision of this Agreement or to exercise any right, power or remedy upon a breach of any provision of this Agreement shall not constitute a waiver of any provision of this Agreement or limit DS or City’s right thereafter to enforce any provision or exercise any right. 16. Severability. Should any provision of this Agreement at any time conflict with any law, ruling, or regulation and be unenforceable, then that provision shall continue in effect only to the extent that it remains valid. In the event any provision of this Agreement becomes thus inoperative, the remaining provisions shall remain fully effective. 17. Counterparts/Facsimile. This Agreement may be executed in any number of counterparts, each of which, when fully executed and delivered, shall be deemed an original, but such counterparts together shall constitute but one and the same instrument. Facsimile transmission of any signed original document, and retransmission of any signed facsimile DocuSign Envelope ID: D1871A49-0E9A-4E0E-A067-9A2B4D12C743 Poinsettia Village – Project 6004 Access Agreement August 7, 2023 5 transmission, shall be the same as delivery of an original. At the request of either party, the Parties shall confirm facsimile transmitted signatures by signing an original document. 18. Notice. Any notice given pursuant to this Agreement shall be in writing addressed to the recipient at the address shown in the first paragraph of the Agreement, as such address may have been changed by written notice. Notice shall be (a) mailed by certified mail with return receipt requested, postage prepaid, or (b) delivered in person or by nationally recognized overnight courier. Any notice sent by mail, in person or by courier shall be deemed given when delivery is first attempted. Notice given to a party in any manner not specified above shall be effective only if and when received by the addressee as demonstrated by objective evidence in the possession of the sender. 19. Jurisdiction and Venue. This Agreement shall be interpreted in accordance with the laws of the State of California. Any action at law or in equity brought by either of the Parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the Parties waive all provisions of law providing for a change of venue in these proceedings to any other county. [signatures on following page] DocuSign Envelope ID: D1871A49-0E9A-4E0E-A067-9A2B4D12C743 Poinsettia Village – Project 6004 Access Agreement August 7, 2023 6 In Witness Whereof, the Parties have executed this Agreement to be effective on the date first above written. City of Carlsbad By: Name: Its: Date: Attest: SHERRY FREISINGER City Clerk APPROVED AS TO FORM: GINA HERRERA, Deputy City Attorney BY: _____________________________ Deputy City Attorney [ si gna t u res c ont i n ue on fo l l owi ng p age ] DocuSign Envelope ID: D1871A49-0E9A-4E0E-A067-9A2B4D12C743 Poinsettia Village – Project 6004 Access Agreement August 7, 2023 7 DS Properties 18 LP, a Delaware limited partnership By: Commercial Property DSRG, LLC, a Delaware limited liability company, Its General Partner By: Property Management DSRG, LLC, a California limited liability company, Its Sole Member By: Donahue Schriber Realty Group, L.P., a Delaware limited partnership, Its Sole Member By: GRI Pioneer, LLC, a Delaware limited liability company, Its General Partner By: Global Retail Investors, LLC, a Delaware limited liability company, Its Sole Member By: First Washington Realty, LLC, a Delaware limited liability company, Its Manager By: _____________________ Henry A. Avila, CSM, RPA Senior Vice President, Operations DocuSign Envelope ID: D1871A49-0E9A-4E0E-A067-9A2B4D12C743 CITY OF CARLSBAD PERMISSION FOR RIGHT OF ENTRY The City of Carlsbad provides this Permission for Right of Entry for scheduled entry and maintenance work within an easement on your property described as: NAME: D S Properties 18 LP STREET ADDRESS: Avenida Encinas ASSESSOR’S PARCEL NUMBER: 214-430-24,214-430-21 For the purposes of facilitating public improvements on Avenida Encinas, the City’s contractor will need to perform work on your property. For further details regarding the subject improvements please refer to the draft Improvement Plans for the Avenida Encinas Coastal Rail Trail and Pedestrian Improvements, Project No. CIP 6004, Drawing No. 536-6 (attached). Specifically, the project improvements requiring this entry include sidewalk improvements and irrigation repair. Authorization of this Right-of-Entry Agreement grants the City and its contractor permission to enter and construct these improvements on the properties addressed above. The City’s contractor shall perform all work in a professional manner per the approved engineering plans and specifications. These documents will be provided after approval and upon request. The City will only be responsible for all damages and liability arising from the sole or active negligence or willful misconduct of the City, or its contractors, entering the property for the above-stated reasons. When completed, the City will restore any affected real property to a condition similar to the existing condition before the construction. Permission described in this Agreement shall end when the project Notice of Completion is filed with the County Clerk’s office. Therefore, I hereby grant the City of Carlsbad, and its contractor, permission to enter my property to construct the above-described improvements. OWNER, Print Name OWNER, Signature DATE EXHIBIT A DocuSign Envelope ID: D1871A49-0E9A-4E0E-A067-9A2B4D12C743 10/10/2023 Henry Avila DocuSign Envelope ID: D1871A49-0E9A-4E0E-A067-9A2B4D12C743 DocuSign Envelope ID: D1871A49-0E9A-4E0E-A067-9A2B4D12C743 Memorandum October 2, 2023 To: From: Scott Chadwick, City Manager Tom Frank, Transportation Director/City Engineer Hossein Ajideh, Engineering Manager Brandon Miles, Associate Engineer Via: Geoff Patnoe, Assistant City Manager Paz Gomez, Deputy City Manager, Public Works {city of Carlsbad Re: City Manager Signature on Property Access and Indemnity Agreement for Segment 2 of the Avenida Encinas Coastal Rail Trail and Pedestrian Improvements Project (District 4) This memorandum provides background information on the need to upgrade three pedestrian ramps on private property located at the south driveway of the shopping center for Americans with Disabilities Act (ADA) compliance, as part of Segment 2 of the Avenida Encinas Coastal Rail Trail and Pedestrian Improvements, Capital Improvement Program {CIP) Project No. 6004 (Project). Segment 2, currently under construction, will make pedestrian and bicycle improvements to the portion of the project along Avenida Encinas between the Poinsettia Transit Station and Carlsbad Boulevard. In October 2022, after City Council approved Project construction, staff requested that the property owners grant permission to city staff and contractors to access certain portions of their property to construct the proposed improvements. One of the owners requested that the city execute a property access and indemnity agreement to allow the city and contractor access to the private property during construction. Staff in the Transportation Department and City Attorney's Office worked with the property owners to finalize and modify the indemnification obligation to cover the construction work that was authorized by City Council, which is consistent with the indemnify obligation in the city's standard Permission for Right of Entry Agreement. The property owners have agreed to the narrowed indemnification obligation. Staff request that the City Manager review and sign the following document attached to this memorandum as Attachment A: • Property Access and Indemnity Agreement; signature needed on page 6 The City Manager manager's authority to execute the agreement on behalf of the City of Carlsbad, is implied by the City Council's approval of the construction of the project, which includes the three pedestrian improvements on the owner's property. The City Attorney's Office has approved the agreement as to form. Public Works Branch Transportation Department 1635 Faraday Avenue I Carlsbad, CA 92008 I 442-339-2730 t