HomeMy WebLinkAbout2013-09-10; City Council; Resolution 2013-226Exhibit 1
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RESOLUTION NO. 2013-226
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A RESOLUTION OF THE CtTY COUNCIL OF THE CtTY OF CARLSBAD,
CALIFORNIA APPROVING A REIIVIBURSEMENT AGREEIVIENT FOR
4 SPECIAL FINANCING DISTRICT FORMATION DEPOSITS
WHEREAS, the CITY COUNCIL ofthe CITY OF CARLSBAD, CALIFORNIA, (hereinafter
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7 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,
WHEREAS, the Policy requires the applicant prove they have consent ofthe owners of
not less than 65 percent, by area, ofthe property proposed to be subject to the levy of
assessments before proceeding through the formation process of a special financing district;
and,
14 WHEREAS, Zone 15 is uniquely characterized by fractured ownership and offsite
15 ownership which has made it challenging for Bent West, LLC to obtain the necessary ownership
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WHEREAS, Bent West, LLC believes having a preliminary Engineer's Report woutd help
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them obtain the necessary 65 percent ownership consent; and,
2Q WHEREAS, the Policy stipulates that alt formation costs are the responsibility ofthe
21 applicant; and,
WHEREAS, the attached Reimbursement Agreement for Special Financing District
Formation Deposits ("Agreement") creates the mechanism for Bent West, LLC to assume the
responsibility for formation costs; and,
WHEREAS, the city witl incur no costs in the potentiat formation of a special financing
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Exhibit 1
1 WHEREAS, staff requests that Council allow Bent West, LLC to temporarily bypass the
initiat formation steps given the unique characteristics of Zone 15, the fact that Bent West, LLC
is required to pay for all formation costs per the attached Agreement, and the fact that Council
is not approving the formation of a special financing district, the improvements inctuded in the
special financing district, the method of assessment allocation, the preliminary assessments, or
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NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Cartsbad,
California, as follows:
1. That the above recitations are true and correct.
2. That Bent West, LLC is allowed to temporarily bypass the initiat formation
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^2 steps outlined in the Policy, specificalty the requirement ofthe applicant to prove
14 they have the consent of the owners of not less than 65 percent, by area, of the
15 property proposed to be subject to the levy of the assessments, with the
understanding that Bent West, LLC, or any future applicant, is stilt required to
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meet the requisite 65 percent approvat threshold before proceeding with the rest
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ofthe formation process.
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2Q 3. That the Agreement, Exhibit 3 attached hereto, is hereby approved.
21 4. That the City Manager, or his designee, is hereby authorized to sign the
Agreement.
5. That the City Clerk is hereby authorized and directed to record the fully
executed Agreement with the San Diego County Recorder's Office.
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PASSED, APPROVED AND ADOPTED at a Regular Meeting ofthe City Council ofthe City
of Carlsbad on the 10*^ day of September, 2013, by the following vote to wit:
AYES:
NOES:
Council Members Hall, Packard, Wood, Blackburn and Douglas.
None.
ABSENT: None.
MATT HALL, Mayor
ATTEST:
BARB^RA'E<yU5LES0^City Clerk
Local Facilities
Management
Plan Zone 15
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EXHIBITS
REIMBURSEMENT AGREEMENT FOR SPECIAL FINANCING DISTRICT
FORMATION DEPOSITS
BENT WEST, LLC
This Reimbursement Agreement dated as of 2013 ("Agreement") is by
and between the City of Carlsbad, a municipal corporation ("Cit/), 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 Califomia 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 of the 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 ail 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 fonnation of the AD and the issuance of
Bonds, the Finance Director ofthe 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 othenwise
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 ofthe AD, the issuance ofthe Bonds, and the proposed expenditure ofthe
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;
(iii) 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 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.
(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 othenA/ise 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 of the 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 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 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
of the Developer. No more than one accounting wil! be provided in any calendar month and
the cost of providing the accounting shall be charged to the Deposits.
7. Notices. Unless othenwise 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 shall be delivered to:
City of Carisbad
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: Powell@theriver.CQm
8. Successor and Assigns. This Agreement shall be binding upon and inure to the benefit of the
successors and assigns of the part:ies 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 previousty
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 under the laws
of the State of California and venue shall be in San Diego County, California.
11. Council Policv No. 33. The process to forni 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 INTENTION ALL Y 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(^westpartners.com
(Emait address)
By:
(sign here)
(print name/title)
CITY OF CARLSBAD, a municipal
corporation ofthe State of Califomia
City Manager-eF-Mayon-opBifeetor
ATTEST:
BARBARA ENGLESON
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
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
By:.
ssistant City Attorney
ACKNOWLEDGMENT
State of California
County of fpH D&^O )
On PanilBh Gi^^lDI^ before me, T^B-jjt^A vU^qhf. (OrfatiU RJc^lC
^ (insert name an<sLtille of the officer) ^
personally appeared l^ehnfE> O&Klon
who proved to me on the basis of satisfactory evidence to be the personOgf) whose nan)e^@afe
subscribed to the within Instrument and acknowledged to me that(^^he/they executed the same in
(@h«F/their authorized capacity(Q96^, and that b/^piGf/tbeir signafurel^ on the instrument the
personCs^, or the entity upon behalf of which the pSfsoQ.^ acted, executed the instrument.
I certify under PENALTY OF PERJURY under the taws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal. f Jd»K 0a8« A vtuwJr
Committioo # 19S1218
Nottry (HiMic • Ctiiftnilt
Signature T^dhOULJ=\ i XJ^CJ::/^ (Seal)
Stn Ditgo County M
CALIFORNIA ALL-PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
State of Califomia
County of yAcut / W^O
On Oi/^ 10-{Q-0\^ before me, or^eAK^ fvH, y^Q-jTLKt^ "^uMxCy ,
I vl? (Here ii'iSert name and title of tfte^fficer)
personally appeared doilV^ CCTJ^^ ,
who proved to me on the basis of satisfactory evidence to be the personC-s) whose name^s) is/are subscribed to
the within instrument and acknowledged to me that he/s4ie4h^ executed the same in his/h^p/their authorized
capacity(+e»), and that by his/heivih^r signature^) on the instrument the person(s^, or the entity upon behalf of
which the person^*) 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 of Notary Pub
(Notary Seal)
MORGENFRY
Commission # 1918442
Notary Public • California |
«'r.j«i-.r' County g I ^^^SB^ Mv Comm. Expires Dec 24.20141
ADDITIONAL OPTIONAL INFORMATION
DESCRIPTION OF THE ATTACHED DOCUMENT
(Title or description ofattached document)
' (title or description of attacndd 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 Califomia must contain verbiage exactly as
appears above in the notary 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 Califomia. 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 ofthe 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.
hg/she/they, 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 pennits, 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 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 ciaimed capacity is a
corporate officer, indicate the title (i.e. CEO, CFO, Secretary).
• Securely attach this document to the signed document
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