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HomeMy WebLinkAboutLFMP 15; Bent West LLC; 2014-0310441; Reimbursement Agreement/ReleaseRECORDING REQUESTED BY: Carlsbad City Clerk's Office WHEN RECORDED MAIL TO: City Clerk City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 DOCtt 2014-0310441 lllllllllllllllllllllllllllllli JUL 23, 2014 11.38 AM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE Ernesl J. Dionenburg, Jr., COUNTY RECORDER FEES: 36.00 PAGES: 8 Iiiillilli SPACE ABOVE THIS LINE FOR RECORDER'S USE City of Carlsbad REIMBURSEMENT AGREEMENT FOR SPECIAL FINANCING DISTRICT FORMATION DEPOSITS - COMMUNITY FACIUTIES DISTRICT BETWEEN THE CITY OF CARLSBAD AND BENT WEST, LLC REIMBURSEMENT AGREEMENT FOR SPECIAL FINANCING DISTRICT FORMATION DEPOSITS - COMMUNiTY FACILITIES DiSTRICT BENT WEST, LLC This Reunbursement Agreement dated as of ^(/AC/ ^ylS* 2014 ("Agreement") is effective as of April 15,2014, supplants the Reimbursement Agreement for Special Financing District Formation Deposits Dated Septemt>er 13,2013, and Is by and between the City of Carlsbad, a municipal corporation CCity"), for itself and on behalf of the proposed City of Carisbad, Califomia, Community Facilities Distiict for Local Facflities Management Plan Zone 15 ("CFD") and Bent-West, LLC, a CaRfomia Limited LiatMlity Company ("Developer"), coRedively ("the Parties'), with reference to the fbllowing recitals: RECITALS WHEREAS, the Developer previously requested the City consider the formation of an Assessment Distiict and the issuance of bonds for tiie Assessmait DistrKt; and Wh^REAS, the Developa' deposited funds with the Qty to en^re paymeitt erf the costs of the City in fbrming the Assessment District; and WHEREAS, the City and Devetoper entered into a Reimtnirsement Agreement for Special Financing District Fonmation Deposits approved by Council on September 10.2013 through ^enda Bill 21,360 and Resoiution No. 2013-226 fn* ttie payment of ttie costs of ttie City HI forming ttie Assessment District; and WHEREAS, the Developer has now requested that flie City consider the formation of the CFO and the issuance of bonds for the CFD ("Bonds") under the Mello-Roos Community Facilities Act of 1982 (the "Act"); aaid WHEREAS, the Developer is willing to deposit funds with tiie City to ensure payment of the costs of the City in fonning ttie CFD and ottierwise in connection with the issuance of Bonds for the CFD and the proposed expenditure of ttie proceeds tiiereof, provided ttiat siK:h fiaids so advanced are reimtHirsed to the Developa-firom ttie (ffoceeds of any BcNids ssued t)y ttie City fcr ttie CFD to ttie exte^ herein; and NOW, THEREFORE, the City and Developer agree as follows: 1. Recitals. The Recitals are true and conect and incorporated herein by this reference. 2. D«x>site. The Developer hereby ^ee to advarK:e amounte necessary ("Deposif and cdectively "Deposits'^ to be used t>y the City to pay the coste in conducting proceedings for tiie formation of the CFD and the issuance of Bonds forthe CFD (as more fuMy d^cribed in Section 3 bdtow. the "Initial Coste"). The Deposit(s) stiall be ke(^ in a separate fund and the City shall maintain records as to ttie expenditure af ttie Dqx>sit(s). (a) The Developer hereby agrees to advance amounte within ten (10) business days upon written demand t^ the Finance Director of ttie City. The City Msmager, in his/her sole discretion, may direct City staff and consultante to cease all wDri( related to the formation of the CFO and ttie issuance of Bonds until aH monies, so donanded. tiave tieen received tiy ttie City. IfttieCMy Manager, HI his/lier sde discretion, <freds City staff aid consultante to cease woric related to Itie formation of ttie CFD aid ttie issuance of Bonds, ttie Rnaice [^rector (rf ttie City shall, wittun ten (10) tmsiness days after receipt of such direction, retum the ttien unexpended O^iosite to ttie Oei^loper, without interest, less an amount equal to any coste incurred by the City or ttiat the City is ottierwise committed to pay, which coste would tie subject to payment under Secticm 3(a) beiow but have not yet tieen so paid, and terminate the proc€»edings. 3. Use of Funds. The Deposits shall be administered as follows: (a) The Finance Director of the City may draw upon ttie Deposite from time to time to pay the Initiai Coste, inducfing t>ut ncrf lanited to: (i) the fees and expenses of any consultante to ttie City employed in connection with the formation ofthe CFD, the issuance ofthe Bonds, and the proposed expenditure of the proceeds ttiereof (such as assessment engineering, legal counsel, including the City Attomey. Bond Counsel, and finaidai advisory fees); (ii) the (X}ste of marttet atisorption, appraisal aid feasU^ studies and ottier reports necessary or deemed adws^Me tiy City ^aff or consutente HI cormection with the CFD or Bonds; (iii) the costs of publication of notices, preparation and mailing of tiaUote and otiier coste related to any election with respect to the CFD, the special taxes to be levied therein, and any bonded indebtedness ttiereof; (iv) a reasoriatiiectiarge for City ^afffirne, as d^emwied tiy ttie Hriance Director in their sole disoi^ion. MI an^yzing the CFD, ttie Bonds, aid the eqdoidSure of ttie proceeds thereof, including a reasonable allocation of City overhead expense related ttiereto; and (v) any and all other actual costs and expenses incurred by the City with respect to the CFD or the Bonds after ttie dale of execution of this ^reement (b) If ttie Bonds are is^ied under ttie Act by the City secured by spedd taxes levied upon tiie land within ttie CFD, the City shall provide for reimbursement to the Developer, wittKHjrt interest, of all anounte chaged againd the Deposite, sad reintfiursement to be made solely from the proceeds of ttie Bonds and only to the extent otiienvise permitted under ttie Act Cki orvMtwi ten (10) btsiness days after ttie date <rf Issuance and ddivery of ttie Bonds, the Fmance Director of the Ctty slial retum ttie then uneqpended D^iostts to the Devek^jer, wWioiA interest, less an amoimt equ^ to any coste moHred t>y llie City of that the City is otherwise committed to pay, which coste would be subject to payment under Section 3(a) above, but have ncH yet been so paid. (c) IftheBondsarenotissued. or ttie City decides to tenninate proceedings under the Act with respect to ttie formation of ttie CFD and ttie issuance of ttie Bonds, the Finance Dnector of ttie Oty sti^l, within ten (10) iM^iess days after receipt (rf a request tlie Developer, retum ttie ttien unexpended Deposite to ttie Developer, vwttiout interest less an amount equal to any coste incurred by the City or that the City is ottierwise committed to pay, wtiich coste would be suljject to payment under Section 3(a) above but liave not yet been so paid. 4. Agreement Not Debt or Ljat)ility(rfCttv. It is heretiy a(d(nowleclqed and acweed ttiat this Agreement is not a debt or Habatfoftne Cify. Tlie City shall not in any event be Satke hereunder ottier ttian to retum ttie unexpended and uncommitted portions (rf ttie Deposite as provided in Section 3 atiove and provicte an accounting under Section 6 tielow. Tlie City shall not tie otiiigated to advance any of ite own funds with respect to the CFD or fbr any of the ottier purposes tided in Section 3(a) here(rf. No member erf ttie City Coundl, or officer, empk^ee or agent Of the City sturil to any extent tie posonally iatrfe liereumter. 5. No Ot^oaJion to Issue Bonds. Ttie provision af tMs Aqreement sti^ in no way oliBdate ttie City to fonn the CFD, to i^ue Bonds, or to expend any of ite ovm funds in connection with the CFD. 6. Accounting. The City Finance Director shall provide tiie Develc^ier with a written accounting of moneys expended under this Agreement, within ten (10) txjsiness days of recdpt by the Finance Director of ttw City of a written rec|ued ttio^icKe submitted t>y ai aithorized ofRcer of ttie Developer. No more ttian one accounting will be provided in any calendar month and the cost af providing the accounting shall be charged to the Deposite. 7. Notices. Unless (rfherwise ^ledtically provitted herein, all ncrfices. donands or crfher communications gp/&n hereimder dicril be in wrttmg and disril be deoi^ to have beai duly delivered i^xm posonal deflvery. w served tiy certified mal postage prepaid. Deivery of notice to Developer shall be presumed to have been macte on tiie date of mailing regardless of recei(rf by Developer. Notices shall tie address as follows: Noti(»s to the City shall be delivered to: City of Carlsbad Attn: Rnance Director 1635 Faraday Avenue Carisbad, CA 92008-7314 Notices to Developer shall tie delivered to: Bent-West, LLC Atbi: Steve Powell, Project 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 af the parties hereto. The Parties agree and acknowledge that the Devetopo- may, in ite sole discretion, assign ite righte and oUigations under ttiis Agreement to a third-party (a "Su(x:essor Developer'). In the event af such assignment, ^1 previously advanced Deposite shall be deemed to have been made by such Successor Developer and any unexpended Deposite shall, to the extent provided for in tiie Agreement, be retumed to such Successor Developer. In the event af such assignment and within 14 calendar days of such assignment, Devekiper diaril notify City, m writir^, of sudi assigranent aid (xovkle City with Successor Developer's complete contact 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 counterparte taricen together stiaU constitute one and the same instnmait 10. Governing Law and Venue. This Agreement be interprded and oiforced imder the laws of ttie State erf Califomia and venue shall be in San Oiego County, Califomia. 11. Coundl Polfcy No. 33. The process to form the CFO and issue Bonds shall comply with Coundl PdHc^ No. 33: Rilfcy for Use of Assessnent t^tricte, Commimity FadXies Disbicts, and Bridge aid Hiorougtrfiare Districte. 12. Complete Agreement. This Agreement conteins ttie entire agreement between the parties witti respect to the sutiject matter contained tierein, and supersedes all negotiations, discusskms, and prior drafts with respect to this subjed matter. 13. Amoichnafit TIKS A^eement may be amended only by a written instatmient exernAed by the City and Devdoper. 14. Severability. The invalidity or unenforceatiitity of any provision of this Agreement, as ctetermined by a court erf competent jurisdfction, ^all in no way affect ttie validity or enforceatiility of any ottier provision hereof REMAINDER OF PAGE INTENTIONALLY LEFT BLANK IN WITNESS VWEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written. DEVELOPER CITY OF CARLSBAD, a municipal corporation of flie State of Califomia By: (sign here) Dennis O'Brien, Member/Manager (print name/title) dobrien@vyestpartners.com (Email address) By: (sign here) (print name/title) Citjr Manager ' '' J ' '' ATTEST: l/j^ BARBARA ENGLESON^ City Clerk If required by City, proper notarial acknowledgment of execnitbn by Developer must be attached. If a (X)rporation. Agre^nent must be signed by one corporate officer firom each of tiie foHowing two groups: Group A. Chairman, PreskJent. or Vice-President Group B. Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporatkm must attach a resolution certifled by flie secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A-JB^C^SM^R,^ Aitomey City Attomey CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State of California County of San I^'legD On before me, lAomen f~vM. )^D"bi>^ ?t>^i>^a. (H^ insert name and title of {hJ officer) personally appeared who proved to me on the basis of satisfactory evidence to be the person(s^ whose namefs^ is/«et 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/her/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 Califomia that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature ofNotary Public (Notary Seal) MORGEN FRY Commission # 1918442 Notary Public - Caliiornia z San Diego County ^ 1 ^ My Comm. Expires Dec 24.2014J ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE ATTACHED DOCUMENT (Title or description of attached document) ^jA-r ixV-^t LLC. (Title or description of attached document continued) 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 notary section or a separate acknowledgment form must be properly compleled 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 nolary lo do somelhiiig 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 signer(s) who personally appear at the time of notarization. • Indicate the correct singular or plural forms by crossing off incorrect forms (i.e. Iw/she/thoy, 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 of the notary public must match the signature on file with the office of the coimty 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 Date personally appeared before me, _ Here Insert Name and Title of the Officer Name(s) of Signer(s) KAREN L. FALETTE Conimtstion # 2021105 Notary Public • CaNtania San Oi<90 CowNy JJ^Comni^ggnl CowNy i Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/af© subscribed to the within instrument and acknowledged to me that he/sho/thoy executed the same in his/l^efitheir authorized capacity(ies), and that by his/l:»ef/tl=»eir 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: 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 Attached Document Title or' Type of Document: ant nato" nf Punoc" Document Date Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Number of Pages: • 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 • NationalNotaryorg • 1-800-US NOTARY (1-800-876-6827) Item #5907