07-0619_CENTRA REALTY CORP_Deposit/ Reimbursement Agreement0 0
DEPOSIVREIMBURSEMENT AGREEMENT
City of San Juan Capistrano
Community Facilities District No. 07-1
(Ventanas Business Center)
THIS DEPOSIT/REIMBURSEMENT AGREEMENT (the "Agreement") is by and
between the City of San Juan Capistrano (the "City"), for itself and on behalf of the
proposed City of San Juan Capistrano Community Facilities District No. 07-1 (Ventanas
Business Center) (the "CFD"), and LB/ Centra Tirador, LLC (the "Developer").
RECITALS:
WHEREAS, the Developer has requested that the City consider the formation of
the CFD and the issuance of bonds for the Ventanas Business Center CFD (the
"Bonds") under the provisions of Sections 53311 et. seq. of the California Government
Code (collectively, the "Law"); and
WHEREAS, the Developer is willing to deposit funds with the City to ensure
payment of the costs of the City in forming the CFD and otherwise in connection with
the issuance of the Bonds and the proposed expenditure of the proceeds thereof,
provided that such funds so advanced are reimbursed to the Developer from the
proceeds of any special taxes or Bonds issued by the City to the extent provided herein;
and
WHEREAS, the City and the Developer now desire to specify the terms of said
deposit and reimbursement.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants set 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.
(a) The Developer has provided to the City Fifty Thousand Dollars ($50,000.00) (the
"Deposit'), to be used by the City to pay the Initial Costs (as defined in Section 2(a)
below) in conducting proceedings for the formation of the CFD and the issuance of the
Bonds, said amount having been heretofore delivered by the Developer to the Director
of Administrative Services/City Treasurer of the City by means of a check made payable
to the "City of San Juan Capistrano." The City, by its execution hereof, acknowledges
receipt by the City of the Deposit. The check representing the Deposit will be cashed by
the City Treasurer, and the Deposit may be commingled with other funds of the City for
purposes of investment and safekeeping, but the City Treasurer shall at all times
maintain records as to the expenditure of the Deposit.
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(b) The Developer hereby agrees to advance 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 therefor by the Director of Administrative Services of the City;
provided that the amount of the Deposit, plus any such additional amounts (the
"Additional Deposits" and, collectively with the Deposit, the "Deposits"), shall not exceed
One Hundred Thousand Dollars ($100,000.00) without the prior written consent of the
Developer. Notwithstanding the foregoing, the Director of Administrative Services may
direct City staff and consultants to suspend all work related to the formation of the CFD
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:
(a) The Director of Administrative Services of the City may draw upon the Deposits
from time to time to pay the following costs (the "Initial Costs"), including but not limited
to":
The fees and expenses of any consultants to the City employed in connection
with the CFD and issuance of the Bonds, and the proposed expenditure of the
proceeds thereof (such as engineering, legal counsel, including the City Attorney,
Bond Counsel and financing and special tax consultants); and,
The costs of appraisals, market absorption and feasibility studies and other
reports necessary or deemed advisable by City staff or consultants in connection
with the CFD and the Bonds; and,
ill. Costs of publication of notices, preparation and mailing of ballots and other costs
related to any election with respect to the CFD, the rate and method of
apportionment of the special taxes to be levied therein and any bonded
indebtedness thereof; and,
iv. A reasonable charge for City staff time, as determined by the City Director of
Administrative Services, in analyzing the CFD, 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 directly incurred by the City with
respect to the CFD or the Bonds.
(b) If the CFD is formed and special taxes are levied or Bonds are issued under the Law
by the City secured by special taxes levied upon the land within the CFD, 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 or any special taxes collected by the CFD and only to the extent otherwise
permitted under the Law. On or within ten (10) business days after the date of issuance
and delivery of the Bonds, the Director of Administrative Services of the City shall return
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the then unexpended Deposits to the Developer, without interest, less an amount equal
to any Initial 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.
(c) If the CFD is not formed or the qualified electors of the CFD do not approve the
special tax or Bonds are not issued or if the Developer requests in writing that the City
terminate proceedings with respect to the formation of the CFD or the issuance of the
Bonds, the Director of Administrative Services of the City (by written request to the City
Treasurer) shall, within ten (10) business days after receipt of such written request or (if
no such written request has been received) after adoption of the resolution stating the
intent of the City to terminate proceedings under the Law with respect to the formation
of the CFD or the issuance of the Bonds, return the then unexpended Deposits to the
Developer, without interest, less an amount equal to any Initial 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.
Nothing contained herein shall prohibit reimbursement of other costs and expenses of
the Developer, or any other entity with an interest in all or any portion of the land in the
CFD, incurred in connection with the CFD from the proceeds of the Bonds, including,
but not limited to fees and expenses of legal counsel and/or financial consultants to the
Developer. Any such reimbursement shall be made solely from the proceeds of the
Bonds or from special taxes collected by the CFD and only to the extent otherwise
permitted under the Law and otherwise provided for, at the reasonable discretion of the
City, in the proceedings for the formation of the CFD or the issuance of the Bonds.
Section 4. Agreement Not Debt or Liability of the City.
It is hereby acknowledged and agreed that this Agreement is not a debt or liability of the
City, as provided in Section 53314.9(b) of the California Government Code. 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 CFD 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 CFD, to
issue any bonds, or to expend any of its own funds in connection with the CFD.
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Section 6. Severabilitv.
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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 Director of Administrative Services of the City (working with the City Treasurer)
shall provide the Developer with a written accounting of moneys expended under this
Agreement, within ten (10) business days of receipt by the Finance Officer of the City of
a written request therefore submitted by an authorized officer of the Developer and, in
any event, promptly following the issuance of the Bonds. 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.
Section 9. Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an
original.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS THEREOF, the parties hereto have executed this Agreement as of
the day and year written alongside their signature line below.
DEVELOPER:
LB/ CENTRAL
Date:
George PfiteAon, Vice
CITY OF SAN JUAN CAPISTRANO:
APPROVED AS TO FORM:
John R. Shaw, City Attorney
6/19/2007
AGENDA REPORT D13
TO: Dave Adams, City Manager'
FROM: Douglas D. Dumhart, Economic Development Manager
SUBJECT: Consideration of Resolution Approving A Deposit/Reimbursement
Agreement for the Ventanas Business Center Community Facilities District
(CFD) Request (Centra Realty, Inc.)
RECOMMENDATION:
By motion, adopt Resolution approving the Deposit/Reimbursement Agreement with
Centra Realty and authorize the Mayor to execute.
SUMMARY:
Centra Realty owns approximately 19 acres of vacant property at the terminus of Calle
Arroyo and the 1-5 freeway known as APN 666-131-07. Centra Realty has made
application for the development of a light industrial complex called 'The Ventanas
Business Center." Centra Realty has requested that the City consider the formation of a
Community Facilities District (CFD) and the issuance of bonds for improvements
associated with their commercial project.
They have requested the CFD to assist in the financing of extraordinary expenses,
extensive public improvements and development fees associated with their project.
Typically, the Developer requesting the CFD deposits funds with the City to ensure
payment of the costs of the City in analyzing and forming a District, in connection with
the issuance of the Bonds, and the proposed expenditure of the proceeds. These funds
which are advanced by the Developer are reimbursed from the proceeds of any Bonds
issued should the District formation be approved. If bonds are not issued the Developer
does not receive a reimbursement of their deposit.
At this time staff is recommending the City Council adopt the Resolution approving the
Deposit/Reimbursement Agreement with Centra Realty for funding the cost associated
with considering the Community Facilities District No.07-01 - Ventanas Business
Center. The Deposit/Reimbursement Agreement is provided as Exhibit A of the
Resolution which is provided as Attachment 1 to this report.
COMMISSION/BOARD REVIEW AND RECOMMENDATIONS:
Not Applicable.
FINANCIAL CONSIDERATIONS:
Agenda Report • • June 19, 2007
Page 2
The city bears no costs associated with the Deposit/Reimbursement Agreement. The
Developer agrees to fund the fees for analyzing and preparing a special district and
bond issuance should the district be approved. The Developer only receives a
reimbursement if the district is formed and bonds are issued.
NOTIFICATION:
Stephen Sandland, Centra Realty*
Denise Herring, Straddling, Yocca, Carlson & Rauth*
James Fabian, Fieldman, Rolapp & Associates*
Andrea Roess, David Taussig & Associates*
Peter Piller, DPFP, Inc.*
(*Received copy of Agenda Report)
RECOMMENDATION:
By motion, adopt Resolution approving the Deposit/Reimbursement Agreement with
Centra Realty and authorize the Mayor to execute.
Respectfully submitted,,
Douglas D. Dumhart
Economic Development Manager
Attachments: 1. Resolution Approving a Deposit/Reimbursement Agreement
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RESOLUTION NO. 07 -XX -XX -XX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN
JUAN CAPISTRANO, CALIFORNIA, APPROVING A
DEPOSITIREIMBURSMENT AGREEMENT WITH CENTRA
REALTY TO ADVANCE FUNDS FOR COSTS INCURRED TO
CONSIDER FORMATION OF A COMMUNITY FACILITIES
DISTRICT.
WHEREAS, the City Council ("City Council") of the City of San Juan Capistrano,
California, (the "City") proposes to undertake proceedings pursuant to the Mello -Roos
Community Facilities Act of 1982, as amended, commencing with Section 53311 of the
California Government Code (the "Act'), to evaluate and form a community facilities
districts; and,
WHEREAS, the Act provides that the City Council may initiate proceedings to
establish a community facilities district pursuant to the Act only if it has first considered
and adopted local goals and policies concerning the use of the Act; and,
WHEREAS, the City Council adopted its Local Goals and Policies by Resolution
07-05-15-06 on the 15th day of May 2007; and,
WHEREAS, Section 53314.9(a) of the California Government Code, provides
that at any time either before or after the formation of the district, the legislative body
may accept advances of funds or work in-kind from any source, including, but not
limited to, private persons or private entities and may provide, by resolution, for the use
of those funds or that work in-kind for any authorized purpose, including, but not limited
to, paying any cost incurred by the local agency in creating a district; and ,
WHEREAS, A Deposit/Reimbursement Agreement has been prepared in
accordance with the Act and is provided as Exhibit A attached hereto and incorporated
by reference.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of San
Juan Capistrano finds that the Deposit/Reimbursement Agreement advancing the funds
or work in-kind, to repay all or a portion of the funds advanced, or to reimburse the
person or entity for the value, or cost, whichever is less, of the work in-kind, as
determined by the legislative body, with or without interest, to evaluate the formation of
a community facilities district and/or the issuance of bonds for the Ventanas Business
Center, meets the requirements of the Act
BE IT FURTHER RESOLVED that the City Council hereby approves the
Deposit/Reimbursement Agreement and authorizes the Mayor to execute the
agreement.
ATTACHMENT
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PASSED, APPROVED and ADOPTED this _ day of , 2007.
Sam Allevato, Mayor
ATTEST: (SEAL)
Margaret R. Monahan, City Clerk
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DEPOSIT/REIMBURSEMENT AGREEMENT
City of San Juan Capistrano
Community Facilities District No. 07-1
(Ventanas Business Center)
THIS DEPOSIT/REIMBURSEMENT AGREEMENT (the "Agreement') is by and
between the City of San Juan Capistrano (the "City"), for itself and on behalf of the
proposed City of San Juan Capistrano Community Facilities District No. 07-1 (Ventanas
Business Center) (the "CFD"), and LB/ Centra Tirador, LLC (the "Developer").
RECITALS:
WHEREAS, the Developer has requested that the City consider the formation of
the CFD and the issuance of bonds for the Ventanas Business Center CFD (the
"Bonds") under the provisions of Sections 53311 et. seq. of the California Government
Code (collectively, the "Law"); and
WHEREAS, the Developer is willing to deposit funds with the City to ensure
payment of the costs of the City in forming the CFD and otherwise in connection with
the issuance of the Bonds and the proposed expenditure of the proceeds thereof,
provided that such funds so advanced are reimbursed to the Developer from the
proceeds of any special taxes or Bonds issued by the City to the extent provided herein;
and
WHEREAS, the City and the Developer now desire to specify the terms of said
deposit and reimbursement.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants set 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.
(a) The Developer has provided to the City Fifty Thousand Dollars ($50,000.00) (the
"Deposit'), to be used by the City to pay the Initial Costs (as defined in Section 2(a)
below) in conducting proceedings for the formation of the CFD and the issuance of the
Bonds, said amount having been heretofore delivered by the Developer to the Director
of Administrative Services/City Treasurer of the City by means of a check made payable
to the "City of San Juan Capistrano." The City, by its execution hereof, acknowledges
receipt by the City of the Deposit. The check representing the Deposit will be cashed by
the City Treasurer, and the Deposit may be commingled with other funds of the City for
purposes of investment and safekeeping, but the City Treasurer shall at all times
maintain records as to the expenditure of the Deposit.
EXHIBIT A
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(b) The Developer hereby agrees to advance 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 therefor by the Director of Administrative Services of the City;
provided that the amount of the Deposit, plus any such additional amounts (the
"Additional Deposits" and, collectively with the Deposit, the "Deposits"), shall not exceed
One Hundred Thousand Dollars ($100,000.00) without the prior written consent of the
Developer. Notwithstanding the foregoing, the Director of Administrative Services may
direct City staff and consultants to suspend all work related to the formation of the CFD
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:
(a) The Director of Administrative Services of the City may draw upon the Deposits
from time to time to pay the following costs (the "Initial Costs"), including but not limited
to":
The fees and expenses of any consultants to the City employed in connection
with the CFD and issuance of the Bonds, and the proposed expenditure of the
proceeds thereof (such as engineering, legal counsel, including the City Attorney,
Bond Counsel and financing and special tax consultants); and,
ii. The costs of appraisals, market absorption and feasibility studies and other
reports necessary or deemed advisable by City staff or consultants in connection
with the CFD and the Bonds; and,
iii. Costs of publication of notices, preparation and mailing of ballots and other costs
related to any election with respect to the CFD, the rate and method of
apportionment of the special taxes to be levied therein and any bonded
indebtedness thereof; and,
iv. A reasonable charge for City staff time, as determined by the City Director of
Administrative Services, in analyzing the CFD, the Bonds and the expenditure of
the proceeds thereof, including a reasonable allocation of City overhead expense
related thereto; and,
Any and all other actual costs and expenses directly incurred by the City with
respect to the CFD or the Bonds.
(b) If the CFD is formed and special taxes are levied or Bonds are issued under the Law
by the City secured by special taxes levied upon the land within the CFD, 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 or any special taxes collected by the CFD and only to the extent otherwise
permitted under the Law. On or within ten (10) business days after the date of issuance
and delivery of the Bonds, the Director of Administrative Services of the City shall return
the then unexpended Deposits to the Developer, without interest, less an amount equal
to any Initial 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.
(c) If the CFD is not formed or the qualified electors of the CFD do not approve the
special tax or Bonds are not issued or if the Developer requests in writing that the City
terminate proceedings with respect to the formation of the CFD or the issuance of the
Bonds, the Director of Administrative Services of the City (by written request to the City
Treasurer) shall, within ten (10) business days after receipt of such written request or (if
no such written request has been received) after adoption of the resolution stating the
intent of the City to terminate proceedings under the Law with respect to the formation
of the CFD or the issuance of the Bonds, return the then unexpended Deposits to the
Developer, without interest, less an amount equal to any Initial 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.
Nothing contained herein shall prohibit reimbursement of other costs and expenses of
the Developer, or any other entity with an interest in all or any portion of the land in the
CFD, incurred in connection with the CFD from the proceeds of the Bonds, including,
but not limited to fees and expenses of legal counsel and/or financial consultants to the
Developer. Any such reimbursement shall be made solely from the proceeds of the
Bonds or from special taxes collected by the CFD and only to the extent otherwise
permitted under the Law and otherwise provided for, at the reasonable discretion of the
City, in the proceedings for the formation of the CFD or the issuance of the Bonds.
Section 4. Agreement Not Debt or Liability of the City.
It is hereby acknowledged and agreed that this Agreement is not a debt or liability of the
City, as provided in Section 53314.9(b) of the California Government Code. 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 CFD 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 CFD, to
issue any bonds, or to expend any of its own funds in connection with the CFD.
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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. Accountinq.
The Director of Administrative Services of the City (working with the City Treasurer)
shall provide the Developer with a written accounting of moneys expended under this
Agreement, within ten (10) business days of receipt by the Finance Officer of the City of
a written request therefore submitted by an authorized officer of the Developer and, in
any event, promptly following the issuance of the Bonds. 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.
Section 9. Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an
original.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS THEREOF, the parties hereto have executed this Agreement as of
the day and year written alongside their signature line below.
DEVELOPER:
LB/ CENTR I C
Date:
George P6telgon, Vice President
CITY OF SAN JUAN CAPISTRANO:
Sam Allevato, MAYOR
ATTEST:
Margaret R. Monahan, City Clerk
APPROVED AS TO FORM:
John R. Shaw, City Attorney to
32400 PASEO ADELANTO
SAN JUAN CAPISTRANO, CA 92675
(949) 493-1171
(949) 493-1053 FAx
wwwsanjuancapzslrano.org
✓/vim IRED AIARolf A
(STAB tISHE O 1961
1776
MEMBERS OF THE CITY COUNCIL
NOTIFICATION OF MEETING OF POTENTIAL INTEREST
OF THE SAN JUAN CAPISTRANO CITY COUNCIL
SAMALLEVATO
THOMAS W. HRIBAR
MARK NIELSEN
JOE SOTO
DR. LONDRES USO
The City Council of San Juan Capistrano will meet at 7:00 p.m. on June 19, 2007 in the
City Council Chamber in City Hall, to consider: "Consideration of Resolution
Approving A Deposit/Reimbursement Agreement for the Ventanas Business
Center Community Facilities District (CFD) Request (Centra Realty, Inc)" — Item
No. D13.
If you have specific thoughts or concerns regarding this item, you are encouraged to
participate in this decision making process. You can communicate with the City Council
through correspondence addressed to the Council and/or by attending the meeting and
speaking to the Council during the public meeting.
Correspondence related to this item must be received at the City Clerk's office by 5:00
p.m. on Monday, June 18, 2007 to allow time for the Council to consider its content.
If you would like to speak at the meeting, please complete a yellow "Request to Speak"
form found inside the entrance to the Council Chamber. This form is turned in at the
staff table, just in front of the Council dais. You will be called to speak by the Mayor
when the item is considered.
You have received this notice at the request of the City staff member Douglas D.
Dumhart, Economic Development Manager. You may contact that staff member at
(949) 443-6316 with any questions.
The agenda, including agenda reports, is available to you on our web site:
www.san'uancai)istrano.org. If you would like to subscribe to receive a notice when
agendas are posted to the web site, please make that request by sending an e-mail to:
citvclerkasanivancapistrano.org.
Meg Monahan, MMC
City Clerk
cc: Stephen Sandland, Centra Realty"; Denise Herring, Straddling, Yocca, Carlson &
Rauth"; James Fabian, Fieldman, Rolapp & Associates'; Andrea Roess, David
Taussig & Associates'; Peter Piller, DPFP, Inc";; Douglas D. Dumhart, Economic
Development Manager
ReceiveM�PYtI&R2rtapistrano: Preserving the Past to Enhance the Future
Ca Pna[etl on t(Ia % mcydetl Oepet
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RESOLUTION NO. 07-06-19 0 2
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN
JUAN CAPISTRANO, CALIFORNIA, APPROVING A
DEPOSIT/REIMBURSMENT AGREEMENT WITH CENTRA
REALTY TO ADVANCE FUNDS FOR COSTS INCURRED TO
CONSIDER FORMATION OF A COMMUNITY FACILITIES
DISTRICT.
WHEREAS, the City Council ("City Council") of the City of San Juan Capistrano,
California, (the "City') proposes to undertake proceedings pursuant to the Mello -Roos
Community Facilities Act of 1982, as amended, commencing with Section 53311 of the
California Government Code (the "Act'), to evaluate and form a community facilities
districts; and,
WHEREAS, the Act provides that the City Council may initiate proceedings to
establish a community facilities district pursuant to the Act only if it has first considered
and adopted local goals and policies concerning the use of the Act; and,
WHEREAS, the City Council adopted its Local Goals and Policies by Resolution
07-05-15-06 on the 15th day of May 2007; and,
WHEREAS, Section 53314.9(a) of the California Government Code, provides
that at any time either before or after the formation of the district, the legislative body
may accept advances of funds or work in-kind from any source, including, but not
limited to, private persons or private entities and may provide, by resolution, for the use
of those funds or that work in-kind for any authorized purpose, including, but not limited
to, paying any cost incurred by the local agency in creating a district; and ,
WHEREAS, A Deposit/Reimbursement Agreement has been prepared in
accordance with the Act and is provided as Exhibit A attached hereto and incorporated
by reference.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of San
Juan Capistrano finds that the Deposit/Reimbursement Agreement advancing the funds
or work in-kind, to repay all or a portion of the funds advanced, or to reimburse the
person or entity for the value, or cost, whichever is less, of the work in-kind, as
determined by the legislative body, with or without interest, to evaluate the formation of
a community facilities district and/or the issuance of bonds for the Ventanas Business
Center, meets the requirements of the Act
Page 1 of 2 06-19-07
0
BE IT FURTHER RESOLVED that the City Council hereby approves the
Deposit/Reimbursement Agreement and authorizes the Mayor to execute the
agreement.
PASSED, APPROVED and ADOPTED this
STATE OF CALIFORNIA )
COUNTY OF ORANGE )ss -
CITY
ss.CITY OF SAN JUAN CAPISTRANO )
19th day of June, 2007.
Sam Allevato, Mayor
I, MARGARET R. MONAHAN, appointed City Clerk of the City of San Juan Capistrano, do
hereby certify that the foregoing Resolution No. 07-06-19-02 was duly adopted by the City
Council of the City of San Juan Capistrano at a Regular meeting thereof, held the 19"' day
of June 2007, by the following vote:
AYES: C NCIL MEMBERS: Nielsen, Uso, Hribar, Soto and Mayor Allevato
NOES:O N I MEMBER: None
ABSENT:, CO MEMBER: None
MARG E ONAH City C erk
Page 2 of 2 06-19-07
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DEPOSIT/REIMBURSEMENT AGREEMENT
City of San Juan Capistrano
Community Facilities District No. 07-1
(Ventanas Business Center)
THIS DEPOSIT/REIMBURSEMENT AGREEMENT (the "Agreement") is by and
between the City of San Juan Capistrano (the "City"), for itself and on behalf of the
proposed City of San Juan Capistrano Community Facilities District No. 07-1 (Ventanas
Business Center) (the "CFD"), and LB/ Centra Tirador, LLC (the "Developer").
RECITALS:
WHEREAS, the Developer has requested that the City consider the formation of
the CFD and the issuance of bonds for the Ventanas Business Center CFD (the
"Bonds") under the provisions of Sections 53311 et. seq. of the California Government
Code (collectively, the "Law"); and
WHEREAS, the Developer is willing to deposit funds with the City to ensure
payment of the costs of the City in forming the CFD and otherwise in connection with
the issuance of the Bonds and the proposed expenditure of the proceeds thereof,
provided that such funds so advanced are reimbursed to the Developer from the
proceeds of any special taxes or Bonds issued by the City to the extent provided herein;
and
WHEREAS, the City and the Developer now desire to specify the terms of said
deposit and reimbursement.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants set 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.
(a) The Developer has provided to the City Fifty Thousand Dollars ($50,000.00) (the
"Deposit"), to be used by the City to pay the Initial Costs (as defined in Section 2(a)
below) in conducting proceedings for the formation of the CFD and the issuance of the
Bonds, said amount having been heretofore delivered by the Developer to the Director
of Administrative Services/City Treasurer of the City by means of a check made payable
to the "City of San Juan Capistrano." The City, by its execution hereof, acknowledges
receipt by the City of the Deposit. The check representing the Deposit will be cashed by
the City Treasurer, and the Deposit may be commingled with other funds of the City for
purposes of investment and safekeeping, but the City Treasurer shall at all times
maintain records as to the expenditure of the Deposit.
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(b) The Developer hereby agrees to advance 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 therefor by the Director of Administrative Services of the City;
provided that the amount of the Deposit, plus any such additional amounts (the
"Additional Deposits" and, collectively with the Deposit, the "Deposits"), shall not exceed
One Hundred Thousand Dollars ($100,000.00) without the prior written consent of the
Developer. Notwithstanding the foregoing, the Director of Administrative Services may
direct City staff and consultants to suspend all work related to the formation of the CFD
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:
(a) The Director of Administrative Services of the City may draw upon the Deposits
from time to time to pay the following costs (the "Initial Costs"), including but not limited
to":
i. The fees and expenses of any consultants to the City employed in connection
with the CFD and issuance of the Bonds, and the proposed expenditure of the
proceeds thereof (such as engineering, legal counsel, including the City Attorney,
Bond Counsel and financing and special tax consultants); and,
ii. The costs of appraisals, market absorption and feasibility studies and other
reports necessary or deemed advisable by City staff or consultants in connection
with the CFD and the Bonds; and,
iii. Costs of publication of notices, preparation and mailing of ballots and other costs
related to any election with respect to the CFD, the rate and method of
apportionment of the special taxes to be levied therein and any bonded
indebtedness thereof; and,
iv. A reasonable charge for City staff time, as determined by the City Director of
Administrative Services, in analyzing the CFD, the Bonds and the expenditure of
the proceeds thereof, including a reasonable allocation of City overhead expense
related thereto; and,
Any and all other actual costs and expenses directly incurred by the City with
respect to the CFD or the Bonds.
(b) If the CFD is formed and special taxes are levied or Bonds are issued under the Law
by the City secured by special taxes levied upon the land within the CFD, 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 or any special taxes collected by the CFD and only to the extent otherwise
permitted under the Law. On or within ten (10) business days after the date of issuance
and delivery of the Bonds, the Director of Administrative Services of the City shall return
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the then unexpended Deposits to the Developer, without interest, less an amount equal
to any Initial 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.
(c) If the CFD is not formed or the qualified electors of the CFD do not approve the
special tax or Bonds are not issued or if the Developer requests in writing that the City
terminate proceedings with respect to the formation of the CFD or the issuance of the
Bonds, the Director of Administrative Services of the City (by written request to the City
Treasurer) shall, within ten (10) business days after receipt of such written request or (if
no such written request has been received) after adoption of the resolution stating the
intent of the City to terminate proceedings under the Law with respect to the formation
of the CFD or the issuance of the Bonds, return the then unexpended Deposits to the
Developer, without interest, less an amount equal to any Initial 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.
Nothing contained herein shall prohibit reimbursement of other costs and expenses of
the Developer, or any other entity with an interest in all or any portion of the land in the
CFD, incurred in connection with the CFD from the proceeds of the Bonds, including,
but not limited to fees and expenses of legal counsel and/or financial consultants to the
Developer. Any such reimbursement shall be made solely from the proceeds of the
Bonds or from special taxes collected by the CFD and only to the extent otherwise
permitted under the Law and otherwise provided for, at the reasonable discretion of the
City, in the proceedings for the formation of the CFD or the issuance of the Bonds.
Section 4. Agreement Not Debt or Liability of the City.
It is hereby acknowledged and agreed that this Agreement is not a debt or liability of the
City, as provided in Section 53314.9(b) of the California Government Code. 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 CFD 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 CFD, to
issue any bonds, or to expend any of its own funds in connection with the CFD.
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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 Director of Administrative Services of the City (working with the City Treasurer)
shall provide the Developer with a written accounting of moneys expended under this
Agreement, within ten (10) business days of receipt by the Finance Officer of the City of
a written request therefore submitted by an authorized officer of the Developer and, in
any event, promptly following the issuance of the Bonds. 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.
Section 9. Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an
original.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS THEREOF, the parties hereto have executed this Agreement as of
the day and year written alongside their signature line below.
DEVELOPER:
LB/ CENTRA TIRADOR, LLC
George Peterson, Vice President
CITY OF SAN JUAN CAPISTRANO:
Sam Allevato, MAYOR
ATTEST:
Margaret R. Monahan, City Clerk
APPROVED AS TO FORM:
John R. Shaw, City Attorney
Date:
Page 5 of 5 EXHIBIT A
32400 PASEO ADELANTO
SAN JUAN CAPISTRANO, CA 92675
(949) 493.1171
(949) 493-1053 FAx
www sanjuancaplstrano. org
TRANSMITTAL
George Peterson, Vice President
Centra Realty Corporation
3 Park Plaza, Suite 1490
Irvine, CA 92614
DATE: June 20, 2007
JWAR*
tA(AAItAAtfO
• nanuem � 1961
1776
FROM: Maria Morris, Deputy City Clerk (949) 443-6309
RE: Deposit/Reimbursement Agreement — Ventanas Business Center
MEMBERS OF THE CITY COUNCIL
SAM ALLEVATO
THOMAS W. HRIBAR
MARK NIELSEN
JOE SOTO
DR. LONDRES USO
Enclosed is an original agreement for the above mentioned agreement. If you have questions
concerning the agreement, please contact Douglas D. Dumhart, Economic Development
Manager (949) 443-6309.
An original agreement is enclosed for your records.
Cc: Douglas D. Dumhart, Economic Development Manager
San Juan Capistrano: Preserving the Past to Enhance the Future
0 Printed on 100% recycled paper