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HomeMy WebLinkAbout2014-06-24; City Council; 21658; Reimbursement Agreement Special Financing District Formation Deposits, Community Facilities DistrictCITY OF CARLSBAD - AGENDA BILL 15 AB# 21.658 APPROVE REIMBURSEMENT AGREEMENT FOR SPECIAL FINANCING DISTRICT FORMATION DEPOSITS-COMMUNITY FACILITIES DISTRICT DEPT. DIRECTOR MTG. 06/24/14 APPROVE REIMBURSEMENT AGREEMENT FOR SPECIAL FINANCING DISTRICT FORMATION DEPOSITS-COMMUNITY FACILITIES DISTRICT CITY ATTY. ^<£S^^ DEPT. FIN APPROVE REIMBURSEMENT AGREEMENT FOR SPECIAL FINANCING DISTRICT FORMATION DEPOSITS-COMMUNITY FACILITIES DISTRICT CITY MGR. RECOMMENDED ACTION: Adopt Resolution No. 2014-159 approving a Reimbursement Agreement for Special Financing District Formation Deposits-Community Facilities District. ITEM EXPLANATION: On September 10, 2013, via Agenda Bill 21,360, Council approved a reimbursement agreement between the City of Carlsbad and Bent-West, LLC for assessment district formation deposits and allowed Bent-West, LLC to temporarily bypass the initial Policy No. 33 (the "Policy") approval steps. On April 15, 2014, via Agenda Bill 21,567, Council made a finding under the Policy to waive the provision of the pass-through requirement for community facilities districts based on the benefit of proceeding with the College Boulevard improvements in a district with diverse ownership. Staff is now pursuing the formation of a community facilities district as the financing mechanism for College Boulevard, Reach A in Local Facilities Management Plan Zone 15. As such, a new reimbursement agreement between the City of Carlsbad and Bent-West, LLC accepting formation deposits for community facilities district is required. Approving the reimbursement agreement will not affect Council's previous decision which allowed Bent-West, LLC to temporarily bypass the initial Policy approval steps. FISCAL IMPACT: Per the Policy, the cost to form a special financing district lies solely with the applicant. The applicant is required to deposit sufficient funds with the city to cover all formation costs. If a special financing district is formed and bonds are issued, the Policy allows the formation costs to be reimbursed to the applicant from bond proceeds. If, for any reason, a special financing district is not formed and bonds are not issued, the city will refund any unexpended deposits to the applicant per the Policy. There is no fiscal impact to the city by approving the attached reimbursement agreement with Bent- West, LLC. The attached reimbursement agreement memorializes the Policy formation cost rules and creates the mechanism for Bent-West, LLC to deposit sufficient funds for the community facilities district information they are requesting. DEPARTMENT CONTACT: Aaron Beanan 760-602-2414 Aaron.Beanan^carlsbadca.gov FOR CLERK USE. k COUNCIL AaiON: APPROVED k CONTINUED TO DATE SPECIFIC • DENIED • CONTINUED TO DATE UNKNOWN • CONTINUED • RETURNED TO STAFF • WITHDRAWN • OTHER- SEE MINUTES • AMENDED • REPORT RECEIVED • PAGE 2 ENVIRONMENTAL IMPACT: An Environmental Impact Report (EIR 98-02 -SCH No. 99111082) was prepared forthe Calavera Hills Master Plan Phase II, Bridge and Thoroughfare District No. 4, & Detention Basins. The EIR analyzed the construction ofthe missing section of College Boulevard between Cannon Road and El Camino Real. Furthermore, approving a reimbursement agreement for special financing district formation deposits is exempt from the requirements of CEQA pursuant to Public Resources Code Section 21065. This action does not constitute a "project" within the meaning of CEQA in that it has no potential to cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and therefore does not require environmental review. EXHIBITS: 1. Resolution No. 2014-159 approving a Reimbursement Agreement for Special Financing District Formation Deposits - Community Facilities District. 2. Area Map - Local Facilities Management Plane: Zone 15 3. Reimbursement Agreement for Special Financing District Formation Deposits - Community Facilities District. 1^ 26 27 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 IQ WHEREAS, the Policy stipulates that all formation costs are the responsibility of the 11 applicant; and, 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, 19 California, as follows: 20 1. That the above recitations are true and correct. 21 That the Agreement, Exhibit 3 attached hereto, is hereby approved. 22 22 3. That the City Manager, or his designee, is hereby authorized to sign the 24 Agreement. 25 4. That the City Clerk is hereby authorized and directed to record the fully 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: B/\RP^RA ENGLESOlfrtity Clerk Exhibit 2 EXHIBITS REIMBURSEMENT AGREEMENT FOR SPECIAL FlNANaNG DISTRiCT FORMATION DEPOSITS - COMMUNITY FACILITIES DISTRICT BENT WEST, LLC This Reimbursement Agreement dated as of CTt/AC-' tglS* 2014 fAgreemenf) is effective as of April 15,2014, supplants the Reimbursement Agreement for Special Financing District Fonnation Deposits Dated September 13,2013, and is by and tsetween the City of Cari^iad, a municipal corporafion ("City'), for itself and on b^aif ofthe proposed City of Carisbad, Caliibmia, Community Fadlities District for Local Fadlities Management Plan Zone 15 f CFD") and Bent-West. LLC, a Cafifomia Limited Liability Company {'Developer^), coflecfively (the Parties"), vwfli reference to the foliowing recitals: RECITALS WHEREAS, the Devekiper previously requested the City consider the formation of an Assessment District and the issuance of bonds fcnr the Assessment District; and WHEREAS, the Devetoper deposited lunds vwth the City to ensure payment <rf the co^ of the City in forming the Assessment District; and WHEREAS, the City and Developer entered into a Reimbursement Agreement for Special Financing Disbict Fonnation Deposits approved by Coundl on Septemb^ 10,2013 through Agenda Bill 21,360 and Resolufion No. 2013-226 for fiie paymmt of fl)e coste of tiie City in foimtttg the A^essment District and VWEREAS, the Devek^er has now requested tiiat tiie City consider ttie formation of tiie CFD and the issuance of bonds for tiie CFD f Bonds") under tiie Mello-Roos Community Fadrities Act of 1982 (flie °Ad"); and WHEREAS, the Devek>per is willing to deposit funds with the City to ensure payment of the costs of the City in fbrming the CFD and otherwise in connection with the issuance of Bonds for the CFD and the proposed expaiditure of ttie proceeds tiiereof, provided tiiat sudi funds so advanced are reimbursed to ttie Develops jiom the proceeds of any Bcmds isaied by the City for tfie CFD to ihe esdafit fsawded heran; and NOW, THEREFORE, the City and Devetoper agree as follows: 1. Recitals. The Recitals are true and correct and incorporated herein by this reference. 2. Deposite. The Developer hereby agree to advance amounts necessary ( 'Oeposif and coBecHvely "Deposits') to be used by tiie City to pay tiie costs in conducting proceedings for the fomiation of ttie CFD and ttie issuance af Bonds for the CFD (as more luVy descrit>ed in Section 3 below, the "Initial Costs'). The D^sit(s) ^all be kept in a separate fund and the City shall maintain records as to ttie expenditure of the Deposit(s). (a) The Devetoper hereby agrees to advance amounts within ten (10) business days upon written demand by the Finance Director of ttie City. The City Manager, in his/her sole discretion, may direct City staff and consultants to cease all woric related to the formation of the CFD and the issuance of Bonds until ali mor^, so demanded, have been received by ttie City. If ttie Oty Mar»g^. in his/ha- soie discretion, dmeds Cify staff and consultante to cease ^ WCHIC rdated to the fcmnation of ttie CFD and the issuance of Bonds, the Finance Director of ttie City shall, wittHn ten (10) business days after receipt 1 of such direction, retum tiie tiien unexpended Deposits to tiie Developer, witiiout interest, less an amount equal to any costs incurred by the City or ttiat ttie City is ottierwise committed to pay, which costs would be subject to payment under Section 3(a) below but have not yet been so paid, and temiinate tiie proceedings. 3. Use of Funds. The Deposits shall be administered as foltows: (a) The Finance Director of the City may draw upon tiie Deposits linom time to time to pay tiie Initial Costs, induding but not limited to: (i) the fees and expenses of any consultants to the City employed in connection with the fonnation ofthe CFD, the issuance ofthe Bonds, and the proposed expenditore of the fwoceeds thereof (such as assessment engineering, legal counsel, induding the City Attomey, Bond Counsd, and finandal advisory fees); (ii) ttie costs of maricet absorption. api»aisal and feasibiOty stodies and ottier r^xHts necessary or deaned adwsat^e by City staff or oinsufiante in connec^km wtti ttie CFD or Bonds; (i><) the costs of publication of notices, preparation and mailing of ballots and ottier costs related to any election witti respect to the CFD, the special taxes to be levied tiierein, and any bonded indetrtedness tiiereof. (iv) a reascMiable diarge for City staff fime. as d^rmlned by ttie Fnance Director in ttieir sole disc^'^n, in matfdrtg ttie CFD, the Bonds, and ttie exp^iditure of the proceeds thereof, induding a reasonable allocatton of City overhead expense related thereto; and (v) any and all other adual costs and eiqienses incurred by tiie City with resped to the CFD or tiie Bonds after tie date of executicMi of this ^reenent (b) If tiie Bonds are issued md&r flie Ad by tiie City secured by spec^ taxes levied upon the land within the CFD, the City shall provide for reimbursement to ttie Developer, wittiout interest, of aU amounts charged against tiie Deposits, said reimbursement to be made solely fixMn the proceeds ofthe Bonds and only to the extent otiienMise permitted under ttie Act On or vwttiin ten (10) bu^ne^ days after ttie date of issuamce and delivery of ttie Bonds, flie Firran<» elector <jf the City ^8 retum the fliai un«q>»ided Depo^ to ttie Devek^i^. iMttKHit bitHest, less an amcMint equal to any ccste 'mamTed by flie City of that the City is ottienwise committed to pay. which costs would be sutqect to payment under Sedion 3(a) above, but have not y^ been so paid. (c) If ttie Bonds are not issued, or ttie City decides to terminate proceedings under tiie Act witti resped to ttie formation of ttie CFD and ttie issuance of ttie Bonds, the Finance Diredor of ttie City ^all, mMn ten (10) business days after receipt of a request by ttie Devetop^, retom flie then uneiqpend^ Deposite to flie Devetoper. wfliout h^est, art amount equal to any coste incurred by flie Crty or that the City is ottienwise committed to pay, which coste would be sutyed to payment under Sedion 3(a) above but have not yet been so paid. 4. Aareanent Not Debt or Liabilifa of Cih^. It is hereby acknowledged and agreed tiiat ttiis Agre«nent Is not a debt or UaUilty of flie City. The C»y shall not in any event be liabte hereunder c^a- fliai to retom flie loieiqjaided and imoomm'itted porflcHis of the D^site as provkted in Section 3 above and provkle an accounta'ng under Section 6 below. The City shall not be obi^ed to advance any of ns own ftmds wifli respect to flie CFD or fcM^ any of the ottia purposes li^ed in Section 3(a) hereof. No member of flie City Coundl, or officer, emptoyee or agent of the City shall to any extent be personally liabte hereunder. 5. No Obttoation to Issue Bcxids. The prowiskm of flife AsremterA ^lall m no way ob^te the City to form ihe CFD, to issue Bonds, or to exp&vi any of ite own liinds in connec^on witii the CFD. 6. Accounting. The City Finance Director shall provide flie Developer witti a written accounting of moneys expended under tills Agreement, vwthin ten (10) business days of receipt by ttie Finance Diredor of ttie City of a vwitten request ttierefore submitted by an auttiorized officer of flie Developer. No more ttian one accounting will be provided in any calendar month and the cost of providing the accounting shall be charged to tiie Deposite. 7. Notices. Unless c^erwise spedfically provided haein, ali notices, danands or ottier communications given hereunder ^all be in iMiting and shall be deemed to have be&t duly delivered upon personal deBvery, or saved by catified msa\ posltage prepaid. DeBvery 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 ctelivered to: City of Carisbad Attn: Rnance Diredor 1635 Faraday Avenue Cartsbad. CA 92008-7314 Notices to Developer shall be delivered to: Bent-West, LLC Attn: Steve Powell, Projed Manager 5796 Annada 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 ttie successors and assigns ofthe parties hereto. The Parties agree and acknowledge that the Devetoper may, in ite sole discretion, assign ite righte and obligatkMis under this Agreement to a ttiird-party (a "Successor Developer*). In ttie event of such assignment, previou^y advanced Deposite shall 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 ttie event of sudi assignment and within 14 catendar days of such assignment, Developa ^aB notify City, in vwiting, of sudi assignment and pmwde City with Successor Developa's complete contad information. 9. Counteroarte. 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 t^en togettia shall constitote one and ttie same instrument 10. Governing Law and Venue. This Agreement shall be interpreted and enforced unda the laws of the State of Califomia and venue shall be in San Diego County. Califomia. 11. Coundl Policv No. 33. The process to fomri the CFD and issue Bonds shall comply witti Coundl Poltey No. 33: Policy for Use of Assessment Distrids, Community FacBittes Distrids, and Bridge and TYiaoughfare Distrids. 12. Comptete Agreement This Agreement conteins tiie entire agreement between the parties vi^ resped to ttie subjed matter cxmteined herein, and supersedes aH negotiations, discussions, and prior drafte witti resped to this subjed matter. 13. /anendment This Agreement may be amended only by a written instrumait executed by ttie City and Devdoper. 14. Severability. The invalidity or unenforceability of any provision of tiiis Agreement as detennined by a court of competent jurisdidion, shall in no way affed ttie validity or enforceability of any other pro\flsion hereof. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK IN WITNESS WHEREOF, tiie parties hereto have caused tiiis Agreement to be executed as of tiie date first above written. DEVELOPER CITY OF CARLSBAD, a municipal corporation of the State of Califomia By: (sign here) Dennis O'Brien, Member/Manager (print name/title) dobrien@westpartners.com (Email address) By: (sign here) (print nanne/title) ^pMu^^rn V— City Manager '" / ATTEST: BARBARA ENGLESON^ City Clerk /^^•ii^ If required by City, proper notarial acknowledgment of executron by Developer must be attached. If a coroofation. Agreement must be signed by one corporate officer from each of the following 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 the secretary or assistant secretary under corporate seal empowering the ofRcer(s) signing to bind tiie corporation. APPROVED AS TO FORM: CELIA A-JB^OfVEpDcity Attomey CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State of Califomia County of San On before me, V\omm HM. )OD-^i^ 7iA^G. (3J (Hdi^ insert name and title of *i 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/sfee/they executed the same in his/kcr/thcir authorized capacity(ies), and that by his/h©f/thetr signature(s) on the instrument the person(s-), or the entity upon behalf of which tiie 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. WITNESS my hand and official seal. Si^ature of Notary Public MORGENFRY Commission # 1918442 Notary Public - CaWornia San Oiego County 1 z (Notary Seal) < My COITini. EX^JI My Comm. Expires Dec 24.2014 0141 ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE ATTACHED 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) Partner(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 notaiy 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 altemative 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 carefullyfor 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 signer(s) who personally appear at the time of notarization. • Indicate the correct singular or plural forms by crossing off incorrect forms (i.e. iWshe/theyr is /afe ) or circling the correct forms. Failure to correctly indicate this information may lead to rejection of document recording. • The notary sea! 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 docimient, 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 Date personally appeared before me, Here Insert Name and Title of the Officer Name(s) of Signer(s) r KAREN L. FALEHE Commission # 2021105 Notary Putrtic - CaMontt San Oieoo County My Comm. Iwrifts MIK 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/l^ef#ieir 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. Signature: Signature of Notary Public OPTIONAL 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 AttachedJ3ocument Title or Type 1 Ul MllClUlieU UUUUIIICIIl ^ of Document: 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 — Titie(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