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HomeMy WebLinkAboutTechbilt Construction Corporation; 2008-07-16;3 RATIFICATION OF REIMBURSEMENT AGREEMENT FOR PLANNED LOCAL DRAINAGE AREA FACILITY "BP" ALONG LA MIRADA CREEK AT FARADAY AVENUE (TECHBILT CONSTRUCTION CORPORATION) This RatificatiopHo^ Reimbursement Agreement ("Agreement") is entered into as of this U day of L^uUL/ __ 2008 by and between the City of Carlsbad, a municipal corporation ofe Stare of California ("City"), and Techbilt Construction Corporation, a California Corporation, ("Developer") (collectively, the "Parties"). RECITALS A. Developer is developing certain real property commonly known as Carlsbad Oaks North, ("Property"), located in City and more particularly described as Carlsbad Tract 97-1 3 ("Project"); and B. The Planning Commission of the City adopted a series of resolutions on August 21, 2002, recommending approval of the Project; and C. The City Council of the City adopted Resolution No. 2002-298 on October 8, 2002, approving the Project; and D. The project approvals require Developer to design and construct certain public improvements more particularly described as Planned Local Drainage Area facility BP, a detention basin along La Mirada Creek at Faraday Avenue ("Improvements"); and E. The Developer has entered into secured Subdivision Improvement Agreements with City guaranteeing construction of Improvements dated November 3, 2004 ("Secured Improvement Agreements"), incorporated herein by this reference; and F. The Improvements are included within the list of projects funded by the City's Planned Local Drainage Area Fee program ("Fee Program"); and G. Developer is obligated pursuant to City Code, City Council Policy and/or the Project conditions of approval to pay a fee and/or to construct certain improvements in satisfaction of the requirements of the Fee Program; and H. The Fee Program provides for reimbursement and/or credit against payment of Fee Program fees for Developer's cost to construct Improvements; and I. Developer has constructed Improvements in accordance with Secured Improvement Agreements and desires to receive reimbursement and/or credit against payment of Fee Program fees ("Reimbursable Work"); 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 General Counsel Approved Version #07.05.01 K. 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 L. Improvement Audit finds that the Developer is eligible for reimbursement and/or Fee Program fee credits in the amount of $306,310.59 ("Reimbursable Amount"); and M. City and Developer desire to establish a method to fairly reimburse and/or grant credits against payment of Fee Program 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 has caused the construction of Improvements in substantial compliance with Secured Improvement Agreement, Grading and Erosion Control Agreement and the City Administrative Procedures. b. Developer hereby waives any and all potential constitutional or other legal objections related to Improvements. c. Developer shall pay and/or receive credit against payment of Fee Program fees in accordance with City Codes, City Council Policy and the provisions of Fee Program. d. 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 and/or grant Fee Program credits to Developer for the Reimbursable Amount as described in Section 5 and 6 below. b. All reimbursements and/or grants of fee credits made by the City, pursuant to the terms of this Agreement shall be made only to Developer, unless otherwise directed, in writing by the Developer, to make reimbursement and/or to grant fee credits to another party. General Counsel Approved Version #07.05.01 (I 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, City Council Policy and the requirements of the Fee Program including the following: i. 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. ii. 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. iii. 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 $306,310.59. b. The amount of reimbursement due to Developer is $306,310.59. 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 (10) 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. 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. General Counsel Approved Version #07.05.01 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: Techbilt Construction Corporation Attn: Theodore Tchang 3575 Kenyon Street San Diego, CA 92110 Telephone: (619) 223-1663 Fax:(619)223-2865 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 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 January 1, 2009 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 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. General Counsel Approved Version #07.05.01 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 TECHBILT CONSTRUCTION CORPORATION *By: _ , (sign here) Theodore Tchang, President (print name/title) ted@techbilt.com (e-mail address) *By: (sign here) F CARLSBAD, itiorWf the State of icipal LORRAINE M. WOOD City Clerk (print name/title) (e-mafl address) A proper notarial acknowledgment of execution by Developer 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. APPROVED AS TO FORM: RONALD R. BALL.-Gowat-•£i -^ frfo^e^ General Counsel Approved Version #07.05.01 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of San DieS° On Mav 21. 2008 before me,Paula Harmer. Notary Piihlir Date personally appeared Here Insert Name and TitTe of the Officer Theodore Tchang Name(s) of Signer(s) PAULA HARMER Commission #1652769 Notary Public - California f San Diego County r My Comm. Expires Mar 19.201 Of 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 m 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: Ratification of Reimbursement Agreement Document Date: May 21, 2008 Number of Pages: 5 Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Theodore TchangSigner's Name:. D Individual St Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing: Theodore Tchang as President of Techbilt Construction Corp. President RIGHTTHUMBPRINT OF SIGNER Top of thumb here Signer's Name: D Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 •Chatsworth, CA 91313-2402-www.NatJonalNotary.org Item #5907 Reorder:CallToll-Free 1-800-876-6827 RESOLUTION I, Genevieve Tchang Frost . Secretary of TECHBILT CONSTRUCTION CORP. do hereby certify that the following resolution was unanimously adopted at a regular meeting of the Board of Directors held on October 16, 2007: RESOLVED, that the President, Theodore Tchang, acting alone, OR Genevieve Tchang Frost, the Vice President and Secretary, acting alone, OR Douglas E. Woods, Vice President, acting alone, are hereby authorized to sign any and all documents required on behalf of this corporation. I further certify that the specimen signatures appearing below are the signatures of the officers authorized to sign for this Corporation by virtue of this resolution. AUTHORIZED SIGNATURES: Theodore Tchang, President Genevieve Tchang Frost, Vi&e^resident and Secretary Douglag/E. Woods, Vice President I HEREBY CERTIFY that the above resolution and authority are still in force and effect. DATED: October 16. 2007 Secretary TECHBILT CONSTRUCTION CORP. \V