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HomeMy WebLinkAboutLFMP 15; Bent West LLC; 2013-0623961; Reimbursement Agreement/Releasen RECORDING REQUESTED BY: Carlsbad City Clerk's Office WHEN RECORDED MAIL TO: City Clerk City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 DOCS 2013-0623961 llililiillllilllllllillilllllllillllllll! OCT 17, 2013 11:31 AM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE EmeslJ. Dronenburg, Jr.. COUNTY RECORDER FEES: 33.00 PAGES: SPACE ABOVE THIS LINE FOR RECORDER'S USE City of Carlsbad REIMBURSEMENT AGREEMENT FOR SPECIAL FINANCING DISTRICT FORMATION DEPOSITS BENT WEST, LLC REIMBURSEMENT AGREEMENT FOR SPECIAL FINANCING DISTRICT FORMATION DEPOSITS BENT WEST, LLC This Reimbursement Agreement dated as of Se^nhdr 13 , 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 ofthe 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; (ill) 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 ofthe proceeds thereof, including a reasonable allocation of City overhead expense related thereto; and (v) any and ail 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 ofthe 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 othenwise committed to pay, which costs would be subject to payment under Section 3(a) above but have not yet been so paid. 4, Agreement Not Debt or Liabilitv of City, 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 ofthe 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 shalt 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: Powe I l@th e ri ver. 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 underthe 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. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written. DEVELOPER By: (sign here) Dennis O'Brien, Member/Manager (print name/title) dobrien(gwestpartners.com (Email address) By: (sign here) CITY OF CARLSBAD, a municipal corporation ofthe State of California City Manager «f^Aayo£-Of-©tfeetor ATTEST: (print name/title) 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. BREWER, City Attorney ACKNOWLEDGMENT State of California _^ * County of ^r\ij&Dp On PciYll^ (^i^^20^ before me. ^^1:1^A VW^Wt-, (OdmU f^iO (insert name an(sLtiJle of the officer) * personally appeared "T^eHnt^ QSn on who proved to me on the basis of satisfactory evidence to be the person^ whose namef^^sjafe subscribed to the within instrument and acknowledged to me that(fie)Jphe/they executed the same in (^^hefrtheir authorized capacity(i^, and that b/RfejheFAIwir signa!ure(^ on the instrument the personCs^, or the entity upon behalf of which the p^orj^^ 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. 1 IXSM^Z/ san Dtego coumy g —^ ^ r ^ /O fl 1 My Comm. EMpiras Oct 3.201Sl Siqnature T3eHajU=\ .LK:>Gl W~ (Seal) ' J n ^ WITNESS my hand and ofPcial seal. ] j^aStlK DEBBIE A.V0U8HT 3i^^» Commission # 1951218 immSi Nottry PtiUtc - Camomla San Dtego County CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State of California County of ^WvM .tXt^l On before me, 1 (Here ittsirl name and title of tlWoiTicer) personally appeared _ who proved to me on the basis of satisfactory evidence to be the person(-s-) whose name^e) is/«fe subscribed to the within instrument and acknowledged to me that he/sho/thoy executed the same in his/b©F/th©ir authorized capacity(ie»), and that by Ki^lh&diXmx signature^) on the instrument the person(9), or the entity upon behalf of which the person^e-) 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. - ^^^...^ ly^^ MOBGENFRY- , J I //^W^ •. ComiTilssion # 1918442 I WITNESS my hand and official seal. Signature of Notary Pub' {Notary' Seal) Li.iiii'^r " MOBGENFRY- , . ComiTilssion # 1918442 Notary Public - California | San Diego County j My Comm, Expires Dec 24-I ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE ATTACHED DOCUMENT (Title or description ol attached document) * (Title or description of aiiacWd document continued) (Title or descript Number of Pages : continued) 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 compteted in California must contain verbiage exactly as appears above in the notary section or a separate acknowledgment form must be properly completed and attached lo lhal documeni. The onty exception is if a document is lo be recorded outside of California. In such insiunces, any allernalive 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. ceriifying the autiiorized capacily of the signer). Please clieck the documeni carefully for proper notarial wording and aiUich this form if required. • State and County information must be the State and Count>' where the document signcr(s) personally appeared before the notaiy 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), • Prinl the namc(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, ^/she/theyr is /are) or circling the correct forms. Failure to correctly indicate this information may lead to rejection of document recording, • The notaiy 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 altached to a different document, • Indicate title or type of attached document, number of pages and dale, •:• Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate the title (i,e, CEO, Cl-O, Secretary), • Securely attach this document to the signed document 2008 VersionCAPAvi2,10,07 800-873-9865 www.NotaryClasses.com