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HomeMy WebLinkAboutCSDI LLC; 2016-01-28;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. 2 12.1o.15 \o 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. 12.10.15 3 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. 12.10.15 4 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