HomeMy WebLinkAboutLennar Bressi Ranch Venture LLC; 2001-07-13;DEPOSIT/REIMBURSEMENT AGREEMENT
(Bressi Ranch and La Costa Greens)
THIS DEPOSIT/REIMBURSEMENT AGREEMENT (the “Agreement”) is by and
among the City of Carlsbad (the “City”), for itself and on behalf of the proposed City of
Carlsbad, California, Assessment District for Bressi Ranch and La Costa Greens (the “AD”),
Lennar Bressi Ranch Venture, LLC, a California limited liability company (“Lennar”) and Real
Estate Collateral Management Company, a Delaware corporation (“RECMC”). Lennar and
RECMC are sometimes collectively referred to as the “Developers.”
RECITALS:
WHEREAS, the Developers have requested that the City consider the formation of the
AD and the issuance of bonds for the AD (the “Bonds”) under the Municipal Improvement Act
of 1913 and the Improvement Bond Act of 1915 (collectively, the “Act”); and
WHEREAS, the Developers are 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 Developers from the proceeds of any bonds issued by the City
for the AD to the extent provided herein; and
WHEREAS, the City and the Developers now desire to specify the terms of said deposit
and reimbursement.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants se??’
forth herein, and for other consideration the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
Section 1. The Deposit: Additional Advances. Each of Lennar and RECMC have
provided $25,000 to the City for a total of $50,000 (the “Deposit”), 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 2(a) below, the ‘Initial Costs”), said amount having
been heretofore delivered by the Developers to the Finance Director of the City by means of
checks made payable to the “City of Carlsbad.” The City, by its execution hereof, acknowledges
receipt by the City of the Deposit. The checks representing the Deposit will be cashed by the
City, and the Deposit may be commingled with other funds of the City for purposes of
investment and safekeeping, but the City shall at all times maintain records as to the expenditure
of the Deposit.
The Developers hereby agree to advance (in equal amounts for each of Lennar and
RECMC) any additional amounts necessary to pay any Initial Costs incurred by the City, in
excess of the amount of the Deposit, promptly upon written demand therefore by the Finance
Director of the City; provided that the amount of the Deposit, plus any such additional amounts
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(the “Additional Deposits” and, collectively with the Deposit, the “Deposits”), shall not exceed
$80,000 without the prior written consent of both Lennar and RECMC. Notwithstanding the
foregoing, the City Manager may direct City staff and consultants to cease all work related to the
formation of the AD and the issuance of the Bonds until any additional amounts so demanded
has been received by the City.
Section 2. Use of Funds. The Deposits shall be administered as follows:
(4 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 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 Bonds; (iii) 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 City Manager in his 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.
@> 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 Developers,
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 Developers,
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 2(a) above,
but have not yet been so paid.
(4 If the Bonds are not issued, the Finance Director of the City shall, within ten (10)
business days after written request of either Lennar or RECMC, immediately cease all work on
the formation of the AD and return the then unexpended Deposits to the Developers, 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 2(a) above but have
not yet been so paid.
Section 3. Reimbursement of Other Developer Costs. To the extent permitted under
the Act and otherwise provided for, at the reasonable discretion of the City, in the proceedings
for the issuance of the Bonds, nothing contained herein shall prohibit reimbursement of other
costs and expenses of the Developers, or any other entity with an interest in all or any portion of
the land in the AD, incurred in connection with the AD from the proceeds of the Bonds,
including, but not limited to fees and expenses of legal counsel to the Developers and financial
and assessment spread consultant expenses. Any such reimbursement shall be made solely from
the proceeds of the Bonds, if any.
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Section 4. Apreement Not Debt or Liability 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 2 above and provide an accounting under Section 7 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 2(a) hereof No member of the City Council, or officer,
employee or agent of the City shall to any extent be personally liable hereunder.
Section 5. No Obligation to Issue Bonds. The provisions of this Agreement shall in
no way obligate the City to form the AD, to issue any bonds, or to expend any of its own funds
in connection with the AD.
Section 6. Severabilitv. If any part of this Agreement is held to be illegal or
unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be
given effect to the fullest extent reasonably possible.
Section 7. 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.
Section 8. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the successors and assigns of the parties hereto.
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Section 9. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original.
IN WITNESS THEREOF, the parties hereto have executed this Agreement as of the
day and year written alongside their signature line below.
Executed on:
June&, 2001
DEVELOPERS:
LENNAR BRESSI RANCH VENTURE LLC,
a California limited liability company
By: Lennar Bressi Carlsbad, LLC
a California limited liability company
Its: Managing Member
Executed on:
June -, 2001
By: Lennar Homes of California, Inc.
a California corporation
By:
By:
REAL ESTATE COLLATERAL
MANAGEMENT COMPANY, a Delaware
corporation
By:
Its:
Executed on:
June -, 2001
CITY:
CITY OF CARLSBAD, for itself and on behalf
of its Assessment District to be formed
By:
Its:
24531-9-1647032.2
4 6126101
‘.
STATE OF CALIFORNIA )
) COUNTY Oc%&@ )
ss.
On
appeared
(or proved to me on the basis of satisfactory evidence) to be the person whose name(s)
are-/is subscribed to the within instrument and acknowledged to me that he/&&hey
executed the same in hisf authorized capacity, and that by his/he&heir
signature&) on the instrument the person@, or the entity upon behalf of which the
person(s)act executed the instrument.
WITNESS my hand and official seal.
STATE OF CALIFORNIA )
COUNTY OF
On before me, personally
appeared personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person whose name(s)
are/is subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity, 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.
WITNESS my hand and official seal.
Signature
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(SEAL)
6/26/01
Section 9. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original.
IN WITNESS THEREOF, the parties hereto have executed this Agreement as of the
day and year written alongside their signature line below.
Executed on:
June -, 2001 DEVELOPERS:
LENNAR HOMES OF CALIFORNIA, INC., a
California corporation
By:
By:
Robert L. Santos, Vice President
Executed on:
June g, 2001
Executed on:
June -, 2001
APPROVED AS TO FORM:
CITY ATTORNEY OF THE
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4
REAL ESTATE COLLATERAL
MANAGEMENT COMPANY, a Delaware
corporation
CITY: A
6/26/01
~/Lo I Is
STATE OF S+lBXMA )
/ ! ss- COUNTY OFCao c
appeaz; JAT/& before me, pt’a h 0. c. kp=m 0 personally
Lc9ret e. KL. personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person whose name(s)
are/is subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity, 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.
WITNESS rnx hand and official seal.
Signature i$Ih.&&cm , (SEAL)
STATE OFG&B3RM+A )
COUNTY OF I+&
) ss.
)
On 4 P 7 o/ before m ,
2/q
p/ha* .e. ,& B/lMD personally
appeared * ti v?i- personally known to me
(or proved to me on the ba:s of satisfactory evidence) to be the person whose name(s)
are/is subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity, 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.
WITNESS rnA hand and official seal.
Signature (SEAL)
NOTARY PUBLIC, STATE OF ILLINOIS MYCOMMISSION EXPlRES9/29/2001
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