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HomeMy WebLinkAbout2014-06-24; City Council; Resolution 2014-15927 28 RESOLUTION NO. 2014-159 Exhibit 1 1 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CAUFORNIA, APPROVING A REIMBURSEMENT AGREEMENT FOR 4 SPECIAL FINANCING DISTRICT FORMATION DEPOSITS - COMMUNITY FACILITIES DISTRICT 5 " 6 7 8 9 WHEREAS, the Policy stipulates that all formation costs are the responsibility ofthe 11 applicant; and, 12 WHEREAS, the attached Reimbursement Agreement for Special Financing District Formation Deposits - Community Facilities District ("Agreement") creates the mechanism for Bent-West, LLC to assume the responsibility for formation costs; and, WHEREAS, the city will incur no costs in the potential formation of a special financing WHEREAS, the CITY COUNCIL ofthe CITY OF CARLSBAD, CAUFORNIA, (hereinafter referred to as the "legislative body"), has outlined the steps necessary for the financing of public improvements in Council Policy No. 33 (the "Policy"); and. 13 14 15 16 17 district in Zone 15; and, 18 NOW, THEREFORE, BE IT RESOLVED by the City Council ofthe City of Carlsbad, California, as follows: 1. That the above recitations are true and correct. 2. That the Agreement, Exhibit 3 attached hereto, is hereby approved. 3. That the City Manager, or his designee, is hereby authorized to sign the 19 20 21 22 23 24 Agreement 25 4. That the City Clerk is hereby authorized and directed to record the fully 26 executed Agreement with the San Diego County Recorder's Office. // 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED, APPROVED AND ADOPTED at a Regular Meeting ofthe City Council ofthe City of Carlsbad on the 24th day of June 2014, by the following vote to wit: AYES: NOES: Council Members Hall, Packard, Wood, Schumacher, Blackburn. None. ABSENT: None. MATT HALL, Mayor ATTEST: 8(\RP/^RA ENGLESOIVCity Clerk ;0:-' EXHIBITS REIMBURSEMENT AGREEMENT FOR SPECIAL FINANCING DISTRICT FORMATION DEPOSITS - COMMUNITY FACIUTIES DISTRICT BENT WEST, LLC This Reimbursement Agreement dated as of Jc/rxC' 2014 ("Agreemenf) is effecfive as ofAjprW 15,2014, supplants the Reimbursement Agreement for Spedal Financing District Fomiation Deposits Dated September 13,2013, and is by and between ihe City of Cari^)ad, a municipal coiporafion ("City^, for itself and on b^alf ofthe proposed City of Carisbad, Califomia, Community Facilities Distrid for Local Fadlities Management Plan Zone 15 ("CFD") and Bent-West, LLC, a CaBfomia Limited Liability Company ("Developer*), coflecfively (the Parlies'^, with reference to the following recitals: RECITALS WHEREAS, the Developer previously requested the City consider the formation of an Assessment Distrid and the issuance of bonds for the Assessment District; and WHEREAS, the Developer deposited liinds wth Ihe City to ensure paymerrt of fte cods of 8ie City in forming the Assessment Distrid; and WHEREAS, Ihe City and Developer entered into a Reimbursement Agreement fbr Special Financing Distrid Fomiation Deposits approved by Coundl on Septembo-10,2013 through Agenda Bill 21,360 and Resolution No. 2013-226 fbr ttie payment of the coste of tiie Ciiy in forming the A^essm^t Didrid, and VW4EREAS, the Devel(H)er has now requested that ttie City consider ttie fonnation of the CFD and ttie issuance of bonds for ttie CFD f Bonds') under ttie Mello-Roos Community Fadlities Ad of 1982 (ttie "Ad^; and WHEREAS, ttie Devetoper is willing to deposit funds witti flie City to ensure payment of tiie costs of the City in forming the CFD and ottienwise in connection vntti the issuance of Bonds for the CFD and the proposed expaidibire of ttie proceeds thereof, provided that sudi ftmds so advanced are reimbursed to ttie Devetop^ frcnn the proceeds of any Bcmds issued by ttie City for tfie CFD to ttie e)d«it jxovided herein; and NOW, THEREFORE, the City and Developer agree as follows: 1. Recitals. The Recitals are true and correct and incorporated herein by this reference. 2. Deposite. The Developer hereby agree to advafK:e amounts necessary ("Depo^ and coiiectively "Deposits") to be used by ttie City to pay ttie coste in (inducting proceedings for ttie formaticm of ttie CFD and the issuance of Bonds fw ttie CFD (as mons fijHy described in Sedion 3 below, flie "Initial Coste"). The Deposit(s) shall be kept in a separate fUnd and the City shall maintain records as to ttie e^qjenditure of ttie D^x>sit(s). (a) The Devetoper hereby agrees to advance amounte wittiin ten (10) business days upon written demand by ttie Finance Director of tiie City. The City Manager, in his/her sole discretion, may dired City staff and consultante to cease ali wori( related to tiie formation of tiie CFD and ttie issuance of Bonds until ali moines, so demanded, have been received by the City, if ttie Oty Manager, in hisAia'sole disaie&(Mi,dBredsC% staff and consultonte to cease all wori( rdated to ttie fomiafion of the CFD and the ssuance of Bonds, the Rnance Director of ttie City diall, wittnn ten (10) busing days aft^ receipt 1 of such direction, retum ttie ttien unexpended Deposits to ttie Developer, vwttiout interest, less an amount equal to any costs incurred by ttie City or ttiat the (3ty is ottienwise committed to pay, which coste would be subjed to paymrait under Section 3(a) below but have not yet been so paid, and terminate tiie proceedings. 3. Use of Funds. The Deposits shall be adminidered as foltows: (a) The Finance Diredor of tiie City may draw upon ttie Deposite firom time to time to pay tiie Initial Coste, induding but not limited to: (i) ttie fees and expenses of any consultante to the City employed in connection with the formation ofthe CFD, ttie issuance ofthe Bonds, and the proposed expenditure of ttie prv)ceeds thereof (such as assessment engineering, legal counsel, induding the City Attomey. Bond Counsel, and finandal adwsory fees); (ii) the coste of mari(d absoiption, ap|»atsal and feas9}ility stodies and otti^ i^poils necessary or de^ed adwsatrie i3y City staff or consultonte fn a)nnedk»i wth ttie CFD or Bonds; (iii) tiie coste of publication of notices, preparation and mailing of baliote and ottier coste related to any eledton vnth resped to the CFD, the spedal taxes to be levied therein, and any ijonded indetrtedness tti^eo^ (iv) a reaswiabJe diarge for City staff time, as ddemiined by ttie Faiance Director in tiieir sole discndion, in an^y23ng flie CFD, ttie Bonds, and flie expenditore of flie pn3ceeds thereof, induding a reasonable allocatton of City overtiead expense related ttiereto; and (v) any and all oflier adual coste and expenses incurred by ttie City witti resped to the CFD or the Bonds after the date of executton <rf this Agreanent (b) If ttie Bonds are issued imder flie Ad by ihe City secured by spedal toxes levied upon ttie land within ttie CFD, the City shaB provide for reimbursement to tiie Developer, wittiout interest, of aU amounte charged againd the Deposite, said reimbursement to be made soldy ftom the proceeds of ttie Bonds and only to ttie extent ottienwise permitted under flie Ad. On ar wiflwi t«i (10) bu^ness days after the date of issuance and delivery of ttie Bonds, ttie Finan<» Diredor of flie City diaB retom ttie fliai unexpended Depoate to the Devetopo', vwflKHit biterest, iess an ammjnt equal to any mcuned by ihe City of tiiat ttie City is ottienwise committed to pay. which coste wouki be subjed to payment under Section 3(a) above, but have not yet been so paid. (c) If ttie Bonds are nd issued, or the City decides to terminate proceedings under the Ad witti resped to ttie formation of flie CFD and flie issuance of the Bonds, ttie finance Diredor of flie Oty shall, mMn ten (10) business days after rec^t of a request by tiie Devetop^, fBtom fl« flien uneiqpended D^xisite to flie D&iek3p&r, wflKMit intered, 1^ an amount equal to any coste incuned by flie City or that the City is oflienwise committed to pay, which coste would be sufcyed to payment under Section 3(a) atwve but have not yet been so paid. 4. Agreement Not Debt or Liabilifa of City. It is hereby acknowledged and agreed that tills Agreement is not a debt «• liatulity of flie City. The City shall nd in any event be liable hereunder cMvs ttian to rdum ihe imeiqjaKted and imoimmitted poi&Mis of flie D^site as provkled in Section 3 above and prowde an accounting under Se<^n 6 below. The City shall nd be ob^ated to adi»nce aiy of Hs owm funds witti resped to ttie CFD or for any of the oflier purposes tided in Sedton 3(a) hereof. No member of flie City Coundl, or ofttoer, emptoyee or agent of ttie City shall to any extent be personally liable hereunder. 5. No C»)lMaSon to Issue Bonds. The provisfon of fliis ^reement diall m no way obligate the City to form ttie CFD. to issue Bonds, or to eiqiend any of ite own funds in connection vwtti the CFD. 6. Accounting. The City Finance Diredor shall provide the Developer with a written accounting of moneys expended under ttiis Agreement, within ten (10) business days of receipt by ttie Finance Diredor of ttie City of a written requed ttierefore submitted by an auttiorized oflicer of the Developer. No more than one accounting will be provided in any calendar month and the cod of providing the accounting shall be charged to the Deposite. 7. Notices. Unless ottienwise spedfically provided h^n, all notices, danands or ottier communications given hereunder diall be in vniting and shall be deemed to have beer\ duly delivered upon personal delivery, or s^ed by caiified mail postage prepaid. Defivery of notice to Devetoper shall be presumed to have been made on the date of mailing regardless of receipt by Developer. Notices shall be address as follows: Notices to the City shall be delivered to: City of Carisbad Attn: Rnance Diredor 1635 Faraday Avenue Cartsbad, CA 92008-7314 Notices to Developer shall be delivered to: Bent-West, LLC Atto: Steve Powell, Projed Manager 5796 Armada Drive, Suite 300 Carisbad, CA 92008 Phone: 520-331-1720 Email: Powell@theriver.com 8. Successor and Assigns. This Agreement shall be binding upon and inure to the benefit of the successors and assigns ofthe parti'es hereto. The Parttes agree and acknowledge tiiat the Developer may, in ite sole discretion, assign ite righte and obligatitms under ttiis Agreement to a ttiird-party (a "Successor Developer"). In ttie event of such assignment, sril pre^ou^y advanced Deposite shall be deemed to have been made by such Succ^sor Developer and any unexpended Deposite shall, to the extent provided for in flie Agreement, be retomed to such Successor Developer. In the event of such assignm^t and iMthin 14 csdendar days of such assignment, Develop©- dial! notity City, in writing, of sudi assignment and prowde City witii Successor Developer's complete contad information. 9. Counterparte. This Agreement may be execute in any number of counterparte, each of which when so executed and delivered shall be deemed to be an original and all of which counterparts taken togetiier shall constitute one and the same insbument 10. Governing Law and Venue. This Agreanent shall be interprded and enfwced md& the laws of tiie State of Califomia and venue shall be in San Diego County, Califomia. 11. Coundl Policv No. 33. The process to fomi the CFD and issue Bonds shall comply witti Coundl Pdicy No. 33: Poltoy fcMr Use of Assesanait CS^ds, Commimity Fadities Disbids, and Bridge and Th(»oughfare Didrids. 12. Comptete Agreement This Agreemed contains ttie entire agreement between ttie parties wtth resped to ihe subjed matter contained herein, and supersedes all negotiations, discussions, and prior drafte witti resped to this subjed matter. 13. Amendment This Agreement may be amended only by a written instrument executed by ttie City and Devdoper. 14. Severabilitv. The invalidity or unenforceability of any provision of this Agreement, as detennined by a court of competent jurisdidron, shall in no way affed ttie validity or enforceability of any other proxnsion hereof. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK IN WITNESS WHEREOF, ttie parties hereto have caused ttiis Agreement to be executed as of tiie date first above written. DEVELOPER CITY OF CARLSBAD, a municipal corporation ofthe State of Califomia By: (sign here) Dennis O'Brien, Member/Manager (print name/title) dobrien@westpartners.com (Email address) By: (sign here) (print name/title) CitifManager / " ATTEST: BARBARA ENGLESOhP City Clerk '^t-^ ^. If required by City, proper notarial adcnowledgment of execution by Developer must be attached. If a corporation. Agreement must be signed by one corporate officer from each of the foltowing two groups: Group A. Chairman, PreskJent, or Vice-President Group B. Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resdulion certified by ttie seCTetary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A.^,B^©?^R,)C!ty Attorney CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State of Califomia County of San On before me, lAomm f^. ^^P^bl^M ?lAi>£jLCl^ « J^Ji (H AW insert name and title of Ai officer) personally appeared "St^V tV^ ^. Sguv 1<-DZ-L^ who proved to me on the basis of satisfactory evidence to be the person(s) whose name^s-) is/afe subscribed to the within instrument and acknowledged to me that he/^ie/feey executed the same in his/her/their authorized capacity(ies), and that by his/hsf/their signaturefs) 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 ofthe State of Califomia that the foregoing paragraph is tme and correct. iSS my hand and official seal. Signature of Notary Public (Notary Seal) MORGENFRY Commission # 1918442 Notary Public - California San Diego County g My Comm. Expires Dec 24,20141 • • • • • mmf^fimin^mm^ ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE ATTACIIED DOCUMENT (Title or description of attached document) *—' (Title or description of attached document contmued) Number of Pages Document Date (Additional information) CAPACITY CLAIMED BY THE SIGNER • Individual (s) • Corporate Officer • • • • (Title) Parttier(s) Attorney-in-Fact Trustee(s) Other INSTRUCTIONS FOR COMPLETING THIS FORM Any acknowledgment completed in California must contain verbiage exactly as appears above in the notary section or a separate acknowledgment form must be properly completed and attached to that document. The only exception is if a document is to be recorded outside of California. In such instances, any alternative acknowledgment verbiage as may be printed on such a document so long as the verbiage does not require the notary to do something that is illegal for a notary in California (i.e. certifying the authorized capacity of the signer). Please check the document carefully for proper notarial wording and attach this form if required. • State and County information must be the State and County where the document signer(s) personally appeared before the notary pubhc for acknowledgment. • Date of notarization must be the date that the signei(s) personally appeared which must also be the same date the acknowledgment is completed. • The notary pubhc must print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). • Print the name(s) of document signer(s) who personally appear at the time of notarization. • Indicate the correct singular or plural forms by crossing off incorrect forms (i.e. he/she/tbeyr is /are ) or circling the correct forms. Failure to correctly indicate this informafion may lead to rejection of document recording. • The notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines. If seal impression smudges, re-seal if a sufficient area permits, otherwise complete a different acknowledgment form. • Signature of the notary public must match the signature on file with the office of the county clerk. • Additional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document. • Indicate title or type of attached document, number of pages and date. • Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate the title (i.e. CEO, CFO, Secretary). • Securely attach this document to the signed document 2008 Version CAPA vl2.10.07 800-873-9865 www.NotaryClasses.com CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California County of. On before me, Date personally appeared Here Insert Name and Title of the Officer Nanie(s) of Signer(s) KAREN I. FALETTE Commission # 2021105 Notary Public - CaNfoniia San^Oiego County who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/ap© subscribed to the within instrument and acknowledged to me that he/sho/thoy executed the same in his/hef#»eir authorized capacity(ies), and that by his/hef/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 official seal. Place Notary Seal Above Signature OPTIONAL Signature of Notary Public Though the infonnation 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: ' Xt-J* n-. r,, i^ Number of Pages: t Signer(s) Otiier 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 • Otiier: Signer's Name: • Corporate Officer — Title(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: Signer Is Representing: ) 2072 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907