HomeMy WebLinkAbout2016-01-26; City Council; 22198; Approve Ratification of Reimbursement Agreement with CSDI, LLC for Right Turn Lane Improvements from East Bound Palomar Airport Road to South Bound El Camino RealRatification Reimbursement Agreement, Project 6039
January 26, 2016
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ENVIRONMENTAL IMPACT:
On Aug. 24, 2010 the City Council adopted Resolutions No. 2010-213 and 2010-214, adopting the
Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program for the project. As
approved, the project includes the right turn lane improvements which are the subject of this Ratification
of Reimbursement Agreement. The requested action is consistent with this environmental review.
PUBLIC NOTIFICATION:
None
EXHIBITS:
1. Resolution No. 2016-015 approving and authorizing execution of the Ratification of
Reimbursement Agreement with CSDI, LLC, a California Limited Liability Company ("Developer") for the
design and construction of the right turn lane improvements from east bound Palomar Airport Road to
south bound El Camino Real, Project No. 6039.
2. Ratification of Reimbursement Agreement for right turn lane improvement from east bound Palomar
Airport Road to south bound El Camino Real.
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PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City
of Carlsbad on the 26th day of January 2016, by the following vote to wit:
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AYES: Council Members Hall, Wood, Schumacher, Blackburn, Packard.
NOES: None.
ABSENT: None.
ATTEST:
(SEAL)
I. The Fee Program provides for reimbursement for Developer's cost to construct
Improvements; and,
J. Developer has constructed Improvements in accordance with Development
Improvement Agreement and desires to receive reimbursement of Fee Program fees
("Reimbursable Work"); and,
K. 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,
L. City has completed an audit of the Developer's costs to construct Improvements in
accordance with the City Administrative Procedures ("Improvement Audit"), incorporated
herein by this reference; and,
M. Improvement Audit finds that the Developer is eligible for reimbursement in the amount
of $257,196.84 ("Reimbursable Amount"); and,
N. City and Developer desire to establish a method to fairly reimburse 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 has caused 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 Improvements.
c. Developer agrees that the Reimbursable Amount recommended in the
Improvement Audit 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 City Obligations.
a. City shall reimburse Developer for the Reimbursable Amount as
described in Section 5 and 6 below.
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b. All reimbursements by the City, pursuant to the terms of this Agreement
shall be made only to Developer.
5. Reimbursable Work.
a. The items of Reimbursable Work shall consist of all costs of construction
of Improvements and all incidental costs of construction of the
Improvements eligible for reimbursement under City Code, City Council
Policy and the requirements of the Fee Program including the following:
1) 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.
2) An amount equal to 1.5% of the direct cost of construction of the
Improvements for the premiums paid for improvement and/or
performance bonds relating to construction of Improvements.
3) An amount equal to 1.8% of the direct cost of construction of the
Improvements for allocable portions of premiums paid for blanket
liability insurance coverage.
6. Reimbursement Calculation.
a. The Reimbursable Amount as determined by the Improvement Audit is
$257,196.84.
b. The amount of reimbursement due to Developer is $ 257,196.84.
7. Payment of Actual Reimbursement.
a. Payment of the Actual Reimbursement shall be made within 30 days of
the execution of this agreement.
8. 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 principal of Developer or the Public Works Director of the City ("Director'').
A copy of such documented dispute shall be forwarded 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 (1 0) days. If the
recommended resolution is unsatisfactory to the aggrieved party, a letter outlining
the dispute shall be forwarded to the City Council for their resolution through the
office of the City Manager. The City Council may, 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.
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9. Assignment of Contract. The Developer shall not assign this contract or any
part thereof or any monies due hereunder without the prior written consent of the
City.
10. Notices. Unless otherwise 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:
DEVELOPER: CSDI, LLC
Attention: Mark Radelow
5465 Morehouse Drive, Suite 260
San Diego, CA 92121-4714
Telephone: (858) 220-7226
Fax: (858) 220-7286
Notices to City shall be delivered to the following:
CITY OF CARLSBAD
Attention: Public Works Director
1635 Faraday Avenue
Carlsbad, CA 92008
Telephone: (760) 602-2751
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 by Developer. The obligations and benefits of this Agreement shall not
be transferred upon sale of the Property.
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 June, 2016 or sooner if full reimbursement has been made in
accordance with the provisions of this Agreement.
16. No Third Party 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.
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UNANIMOUS WRITTEN CONSENT OF
THE BOARD OF DIRECTORS OF
SUDBERRYDEVELOPMEN~INC
a California corporation
November 2, 2009
The undersigned, constituting all of the Board of Directors of Sudberry Development, Inc., a California corporation
("Corporation"), in lieu of holding a meeting of the Board of Directors, hereby adopt the following resolutions by
unanimous written consent without a meeting, effective immediately, in accordance with the Bylaws of the
Corporation and the provisions of California Corporations Code Sections 307(b) and 603(a):
NOW, THEREFORE, BE IT RESOLVED that Mark Radelow,
Vice-President of said Corporation, (the "Officer") is hereby authorized to
execute all documents for the City of Carlsbad and the County of San Diego
relating to the Corporation's projects within the City limits of Carlsbad, San
Diego County, California. All such documents so executed shall be binding
upon and becomes an obligation ofthe Corporation and therefore will be legally
valid and enforceable documents upon which the City of Carlsbad and County
of San Diego can rely.
RESOLVED FURTHER that the afore-mentioned Officer is hereby
authorized, directed and empowered to take such actions and to execute such
instruments and documents as are necessary or desirable in order to facilitate the
Corporation's actions regarding the Corporation's projects within the City of
Carlsbad, San Diego County, California, and such acts and actions on the part of
said Officer are hereby ratified.
Dated: November 2, 2009