HomeMy WebLinkAboutBent West LLC; 2013-05-18;REIMBURSEMENT AGREEMENT FOR SPECIAL FINANCING DISTRICT
FORMATION DEPOSITS
BENT WEST, LLC
This Reimbursement Agreement dated as of ^^^^ , 2013 ("Agreement") is by
and between the City of Carlsbad, a municipal corporation ("City"), for itself and on behalf of the proposed
City of Carlsbad, California, Assessment District for Local Facilities Management Plan Zone 15 ("AD") and
Bent-West, LLC, a California Limited Liability Company ("Developer"), collectively ("the Parties"), with
reference to the following recitals:
RECITALS
WHEREAS, the Developer has requested that the City consider the formation of the AD and the
issuance of bonds for the AD ("Bonds") under the Municipal Improvement Act of 1913 and the
Improvement Bond Act of 1915 (collectively, the "Act"); and
WHEREAS, the Developer is willing to deposit funds with the City to ensure payment of the costs
of the City in forming the AD and otherwise in connection with the issuance of Bonds for the AD and the
proposed expenditure of the proceeds thereof, provided that such funds so advanced are reimbursed to
the Developer from the proceeds of any Bonds issued by the City for the AD to the extent provided
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. Deposits. The Developer hereby agree to advance amounts necessary ("Deposit" and
collectively "Deposits") to be used by the City to pay the costs in conducting proceedings for
the formation of the AD and the issuance of Bonds for the AD (as more fully described in
Section 3 below, the "Initial Costs"). The Deposit(s) shall be kept in a separate fund and the
City shall maintain records as to the expenditure of the Deposit(s).
(a) The Developer hereby agrees to advance amounts within ten (10) business days upon
written demand by the Finance Director of the City. The City Manager, in his/her sole
discretion, may direct City staff and consultants to cease all work related to the formation
of the AD and the issuance of Bonds until all monies, so demanded, have been received
by the City. If the City Manager, in his/her sole discretion, directs City staff and
consultants to cease all work related to the formation of the AD and the issuance of
Bonds, the Finance Director of the City shall, within ten (10) business days after receipt
of such direction, return the then unexpended Deposits to the Developer, without interest,
less an amount equal to any costs incurred by the City or that the City is otherwise
committed to pay, which costs would be subject to payment under Section 3(a) below but
have not yet been so paid, and terminate the proceedings.
3. Use of Funds. The Deposits shall be administered as follows:
(a) The Finance Director of the City may draw upon the Deposits from time to time to pay the
Initial Costs, including but not limited to:
(i) the fees and expenses of any consultants to the City employed in connection with the
formation of the AD, the issuance of the Bonds, and the proposed expenditure of the
proceeds thereof (such as assessment engineering, legal counsel, including the City
Attorney, Bond Counsel, and financial advisory fees);
(ii) the costs of market absorption, appraisal and feasibility studies and other reports
necessary or deemed advisable by City staff or consultants in connection with the AD
or Bonds;
(iii) the costs of publication of notices, preparation and mailing of ballots and other costs
related to any election with respect to the AD, the assessments to be levied therein,
and any bonded indebtedness thereof;
(iv) a reasonable charge for City staff time, as determined by the Finance Director in their
sole discretion, in analyzing the AD, the Bonds, and the expenditure of the proceeds
thereof, including a reasonable allocation of City overhead expense related thereto;
and
(v) any and all other actual costs and expenses incurred by the City with respect to the
AD or the Bonds after the date of execution of this Agreement
(b) If the Bonds are issued under the Act by the City secured by assessments levied upon
the land within the AD, the City shall provide for reimbursement to the Developer, without
interest, of all amounts charged against the Deposits, said reimbursement to be made
solely from the proceeds of the Bonds and only to the extent otherwise permitted under
the Act On or within ten (10) business days after the date of issuance and delivery of the
Bonds, the Finance Director of the City shall return the then unexpended Deposits to the
Developer, without interest, less an amount equal to any costs incurred by the City of that
the City is otherwise committed to pay, which costs would be subject to payment under
Section 3(a) above, but have not yet been so paid.
(c) If the Bonds are not issued, or the City decides to terminate proceedings under the Act
with respect to the formation of the AD and the issuance of the Bonds, the Finance
Director of the City shall, within ten (10) business days after receipt of a request by the
Developer, return the then unexpended Deposits to the Developer, without interest, less
an amount equal to any costs incurred by the City or that the City is otherwise committed
to pay, which costs would be subject to payment under Section 3(a) above but have not
yet been so paid.
4. Aareement Not Debt or Liabilitv of Citv. It is hereby acknowledged and agreed that this
Agreement is not a debt or liability of the City. The City shall not in any event be liable
hereunder other than to return the unexpended and uncommitted portions of the Deposits as
provided in Section 3 above and provide an accounting under Section 6 below. The City shall
not be obligated to advance any of its own funds with respect to the AD or for any of the other
purposes listed in Section 3(a) hereof No member of the City Council, or officer, employee or
agent of the City shall to any extent be personally liable hereunder.
5. No Obligation to Issue Bonds. The provision of this Agreement shall in no way obligate the
City to form the AD, to issue Bonds, or to expend any of its own funds in connection with the
AD.
6. Accounting. The City Finance Director shall provide the Developer with a written accounting
of moneys expended under this Agreement, within ten (10) business days of receipt by the
Finance Director of the City of a written request therefore submitted by an authorized officer
of the Developer. No more than one accounting will be provided in any calendar month and
the cost of providing the accounting shall be charged to the Deposits.
7. 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 served by certified mail postage prepaid. Delivery of
notice to Developer 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 Carlsbad
Attn: Finance Director
1635 Faraday Avenue
Carlsbad, CA 92008-7314
Notices to Developer shall be delivered to:
Bent-West, LLC
Attn: Steve Powell, Project Manager
5796 Armada Drive, Suite 300
Carlsbad, CA 92008
Phone: 520-331-1720
Email: Powell(S),theriver.com
8. Successor and Assigns. This Agreement shall be binding upon and inure to the benefit of the
successors and assigns of the parties hereto. The Parties agree and acknowledge that the
Developer may, in its sole discretion, assign its rights and obligations under this Agreement
to a third-party (a "Successor Developer"). In the event of such assignment, all previously
advanced Deposits shall be deemed to have been made by such Successor Developer and
any unexpended Deposits shall, to the extent provided for in the Agreement, be returned to
such Successor Developer. In the event of such assignment and within 14 calendar days of
such assignment. Developer shall notify City, in writing, of such assignment and provide City
with Successor Developer's complete contact information.
9. Counterparts. This Agreement may be execute in any number of counterparts, each of which
when so executed and delivered shall be deemed to be an original and all of which
counterparts taken together shall constitute one and the same instrument.
10. Governing Law and Venue. This Agreement shall be interpreted and enforced under the laws
of the State of California and venue shall be in San Diego County, California.
11. Council Policv No. 33. The process to form the AD and issue Bonds shall comply with
Council Policy No. 33: Policy for Use of Assessment Districts, Community Facilities Districts,
and Bridge and Thoroughfare Districts.
12. 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.
13. Amendment. This Agreement may be amended only by a written instrument executed by the
City and Developer.
14. Severability. 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
By:
(Email address)
By:
(sign here)
(print name/title)
CITY OF CARLSBAD, a municipal
corporation of the State of California
(sign here)
Dennis O'Brien, Member/Manager
(print name/title)
dobrien@westpartners.com
Manager or Mayor or Director
ATTEST:
BARBARA ENGLESON
City Clerk
If required by City, 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:
CELIA A. B^R^^, City Attorney
Assistant City Attorney
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189
State of California
County of _
On g / \^ I t?? before me, _
• Date Here Insert Name and Title of
personally appeared
the Officer
Name(s) of Signer(s)
KAREN L. FALTTTE
CofTNnission # 2021101
Notary Public • CaWofiil
SM Diaeo Cowilir at
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/s^^^e/they executed the same in
his/hefi#»eir authorized capacity(ies), and that by
his/hef/therr 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 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:
Document Date: ^ Number of Pagesf
CT
Signer(s) Other 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
• Other:
Signer's Name:
• Corporate Officer — Title(s):
• Individual
• Partner — • Limited • General
• Attorney in Fact
• Trustee
• Guardian or Consen/ator
• Other:
Signer Is Representing: Signer Is Representing:
^ 2012 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907