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HomeMy WebLinkAboutBent West LLC; 2014-06-25;REIMBURSEMENT AGREEMENT FOR SPECIAL FINANCING DISTRICT FORMATION DEPOSITS - COMMUNITY FACILITIES DISTRICT BENT WEST, LLC This Reimbursement >i^reement dated as of 3c/ng^ c^S* 2014 ("Agreemenf) is effecSve as of April 15,2014, supplants the Reimbursement Agreement for Special Financing District Fonnation Deposits Dated September 13,2013. and is by and between the City of Cari^sad, a municipal coiporafion ("City"), for itself and on b^alf of ihe proposed City of Cartsbad, Califomia, Community Facilities District for Local Fadlities Management Plan Zone 15 ("CFD") and Bent-West, LLC, a CaBfomia Limited Liability Company ("Developer^), coflecfively ('tiie Parties'), witti reference to ttie following recitals: RECITALS WHEREAS, the Developer previously requested the City consider the fonnation of an Assessment District and the issuance of bonds forthe Assessment District; and WHEREAS, the Developer deposited funds wth tfie City to ensure payment of tie coste of Ihe City in fonning the Assessment District; and WHBREAS, ttie City and Developer entered into a Reimbursement Agreement for Special Financing District Formation Deposits approved by Council on September 10.2013 ttirough Agenda Bill 21,360 and Resolution No. 2013-226 for ttie payment of ttie coste of ttie City in ^xmmg ttie Assessmait District and WHEREAS, ttie Develt^ier has now requested ttiat ttie City consider ttie fonnation of ttie CFD and ttie issuance of bonds for ttie CFD f Bonds! under ttie Mello-Roos Community Fadrifies Act of 1982 (flie "Arf^; send WHEREAS, the Devekiper is wifling to deposit furvis witti tiie City to ensure payment of ttie costs of the City in fbrming the CFD and ottienmse in connection wth the issuance of Bonds for the CFD and the proposed expafidibire of ttie proceeds thereof, provided that suc^ funds so advanced are reimbursed to ttie Develop^' from the proceeds of any Bonds is^ed by ttie City for ttie CFD to ttie extent proved heran; and NOW. THEREFORE, the City and Developer agree as follows: 1. Redtels. The Recitals are true and correct and incorporated herein by this reference. 2. Deposite. The Developer hereby agree to advance amounts necessary ( "Depoaf and collectively "Deposits") to be used by ttie City to pay the coste in ainduc^ng proceedings for ttie formaticm of ttie CFD and ttie issuance <tf Bc»ids fn- the CFD (as more fiiyy described in Section 3 below, ttie "Initial Coste"). The Deposit(s) shall be kept in a separate fund and flie City shsdl maintain records as to ttie expenditure of flie Deposit(s). (a) The Developer hereby agrees to advance amounte wittiin ten (10) business days upon written demand by the Finan<» Director of flie City. The City Manager, in his/her sole discretion, may dired City staff and consultante to cease all woric related to the formation of the CFD and ttie issuance of B(»ids until all moraes, so demanded, have been received by ttie City, if ttie City Man^iger, in his/h«-sole <fisa!^i(m,directeC^ staff and consultante to cease all worit rdated to ttie fonnation of ttie CFD and the tesuance of Bonds, the Finance Diredor of ttie City ^all. wittiin ten (10) busing days aft^ receipt 1 of such direction, retum ttie ttien unexpended Deposite to ttie Developer, wittiout interest, less an amount equal to any costs incurred by the City or fliat the (3ty is ottierwise committed to pay, which coste would be sub|ed to payment under Section 3(a) below but have not yet been so paid, and terminate flie proceedings. 3. Use of Funds. The Deposits shall be administered as follows: (a) The Finance Diredor of flie City may draw upon the Deposite from time to time to pay ttie Initial Coste, induding but not limited to: (i) the fees and expenses of any consultante to the City employed in connection with the fonnation ofthe CFD, ttie issuance of the Bonds, and the proposed expenditure of ttie piYiceeds ttiereof (such as assessment engineering, legal counsel, induding the City Attomey, Bond Counsel, and finandal advisory fees); (ii) the coste of marit^ absorption, apf»aisal and feasibiPity stodies and ottiar r^porte necessary or deaned adwsatde by City staff or omsultante in connedion wtti ttie CFD or Bonds; (iii) ttie coste of publication of notices, preparation and mailirig of baliote and ottier coste related to any election witti resped to the CFD. ttie spedal taxes to be levied therein, and any bonded indebtedness fli^eof. (iv) a reasraiable diarge for City staff time, as d^rmined by the Faiance Director in ttieir sole discr^n, in an^yang flie CFD. ttie Bonds, and flie exp^iditore of fflie proceeds thereof, induding a reasonable allocation of City overtiead expense related thereto; and (v) any and all ottier adual coste and expenses incuned by ttie City witti resped to the CFD or tiie Bonds after flie date of execution of this Agreanent (b) If ttie Bonds are issued imder ttie Ad by the City secured by spedcd taxes levied upon flie land wifliin the CFD, flie City shall provide for reimbursement to flie Developer, wittiout interest, of aU amounte charged against ttie Deposite, said reimbursement to be made solely ftom the proceeds of flie Bonds and only to ttie extent othenivise permitted under ttie Act On or vwfliin tai (10) business days after flie date of issuance and delivery of ttie Bonds, flie Finance Drrettor of flie City rebim ttie fli«i unecpended D^jo^ to the Developer, vwttiout inier^ less an amount equal to any coste mcuned by flie Qty of ttiat ttie City is ottienwise committed to pay. which aiste would be subject to payment under Sedion 3(a) above, but have not y^ been so paid. (c) If the Bonds are not issued, or ttie City decides to terminate proceedings under the Ad witti resped to ttie formation of ttie CFD and ttie issuance of the Bonds, the Finance Director of ttie City ^all. nwtt^n ten (10) buan^ days after receipt of a request by flie Dei^lop^, iBhim fl« fliai unesqaended D^)o»te to ttie Dev^iper. mflxxit in^e^, less an amount equal to any coste incurred by ttie City or that the City is oflienivise committed to pay, which coste would be sufcy^ to payment under Sedion 3(a) above but have not yet ti^n so paid. 4. Aoreanent Not Debt or Liability of Citv. It is hereby acknowledged and agreed that this Agreanent Is not a debt w BabiBty of ttie City. Tlie City shall not in any event be liat^ hereunder fliai to return flie uneiqiaided and imcommitted porSwis of the D^site as provkled in Secfion 3 above and provkie an accounfing under Secfion 6 below. The City shall ncrt t)e <*^Mied to adirance any <rf ite own fiinds wifli respert to the CFD or tor any of the ottier purposes ll^ed in Sedkin 3(a) hereof. No member of ttie City Coundl, or oflk»r, emptoyee or agent of ttie City shall to any extent be personally Bable hereundw. 5. No CtolMafiCTi to Issue Bonds. The fHOWskai of this ^reement ^i^ in no way obflgate ttie City to form ttie CFD, to Issue Bonds, or to eiqiend any of ite own ftinds in connec^on wntti the CFD. 6. Accounfing. The City Finance Diredor shall provide ttie Developer with a written accounfing of moneys expended under ttiis Agreement, within ten (10) business days of receipt by ttie Finance Diredor of ttie City of a written request ttierefore submitted by an auttiorized officer of ttie Developer. No more than one accounting will be provided in any calendar month and ttie cost of providing the accounting shall be charged to the Deposite. 7. Notices. Unless ottienwise spedfically provided haein, all noflces, demands or ottier communications given hereunder shall be in vwiting and shall tie deemed to have been duly delivered upon personal deBvery, or swved by cwfified mail postage prepaid. DeBvery of nofice to Developer shall be presumed to have been made on the date of mailing regareltess of receipt by Developer. Nofices shall tie address as foflows: Nofices to ttie City shall be delivered to: City of Cartsbad Atto: Rnance Diredor 1635 Faraday Avenue Carisbad, 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 of the parties hereto. The Parties agree and acknowledge that the Developer may, in ite sole discretion, assign ite righte and obligations under this ^reement to a ttiird-party (a "Successor Developer*). In ttie event of such assignment, aa iMewou^y advanced Deposite shafl be deemed to have been made by such Successor Developer and any unexpended Deposite shall, to the extent provided for in the Agreement, be retomed to such Successor Developer. In flie event of sudi assignm^t and within 14 calendar days of such assignment. Developer ^aB notify City, in vmting, of sudi assignment and pmvide City vwth Successor Developer's ccmplete 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 together shaH constitute one and the same instrument 10. Governing Law and Venue. This Agreement shaB be interpreted and enfi^ced under the laws of flie State of Califomia and venue shall be in San Diego County, Califomia. 11. Coundl Policv No. 33. The process to form the CFD and issue Bonds shaB comply with Coundl Poltoy No. 33: PoBcy for Use <rf Assesanent ra^ds. Community Facflffies Distiids, and Bridge and flioroughtare Distrids. 12. Complete Agreement This Agreement contains the entire agreement between the parties wifli resped to flie subjed matter omtained herein, and supersedes aH negotiations, discussions, and prior drafte witti resped to ttiis subjed matter. 13. AmendmCTt This Agreement may be amended only by a written in^mait executed by the City and Dev^oper. 14. SeverabBitv. The invalidity or unenforceability of any provision of ttiis Agreement, as detennined by a court of competent jurisdidion, shall in no way affed ttie validity or enforceability of any other provision hereof. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK d IN WITNESS WHEREOF, flie parties hereto have caused tiiis Agreement to be executed as of the 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@westpar^ers.com (Email address) By: (sign here) (print name/title) Cit^ Manager / '' ATTEST: BARBARA ENGLESOINP 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 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 resdution certified by ttie seCTetary or assistant secretary under corporate seal empowering the ofricer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A.^B^e^'^fDcity Attomey II CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State of Califomia County of San On b[a5|i4 before me. [3) (HA^ insert name and title of fti officer) personally appeared 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/sho/thoy executed the same in his/hcr/thcir authorized capacity(ies), and that by his/h©f/their signature(^ 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 foregomg paragraph is tme and correct. •MM iSS my hand and official seal Signature of Notaiy Public MORGENFRY | Commission # 1918442 f Notary Public • Calilornia 1 m v^M^' County S (Notary Seal) i My Comm. Expires Dec 24. m4| ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE ATTACHED DOCUMENT (Title or description of attached document) -^AA-^ h^i^it LL(L (Title or description of attached document contmued) Number of Pages Document Date (Additional information) CAPACITY CLAIMED BY THE SIGNER • Individual (s) • Corporate Officer • • • • (Title) Partner(s) Attorney-in-Fact Tmstee(s) Other INSTRUCTIONS FOR COMPLETING THIS FORM Any acknowledgment completed in California must contain verbiage exactly as appears above in ihe notary section or a separate acknowledgment form must be properly completed and attached lo 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 public for acknowledgment. • Date of notarization must be the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completed. • The notary public 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 signei(s) who personally appear at the time of notarization. • Indicate the correct singular or plural forms by crossing off incorrect forms (i.e. be/she/Aeyr is /are ) or circling the correct forms. Failure to correctly indicate this information 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 ofthe 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 Name(s) of Signer(s) r KAREN L. FALEHE Commission # 20211OS Notary Public • CaMbniM San Diego County Place Notary Seal Above 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/sho/thoy executed the same in his/hei#=»eir authorized capacity(ies), and that by his/hef/H=teir signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. 1 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. 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: ... n.... -<nHftK)eiU^i>l^T.^<=MVinTl^W P^f^^lT^umber of Pages: 4 Document Date: 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 Conservator • Other: Signer Is Representing:. Signer Is Representing:. ) 2012 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907