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HomeMy WebLinkAboutReso 52-17 Approving a Deposit and Reimbursement Agreement with Dublin Crossing, LLC RESOLUTION NO. 52 — 17 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN * * * * * * * * * * * APPROVING A DEPOSIT AND REIMBURSEMENT AGREEMENT WITH DUBLIN CROSSING, LLC WHEREAS in accordance with subsection (c) of Section 53318 of the California Government Code (the "Code"), a petition (the "Petition") containing the matters prescribed by Section 53319 of the Code, has been filed with the City Clerk of the City of Dublin (the "City Clerk") by Dublin Crossing Venture LLC (the "Developer"); and WHEREAS, the Petition requests that proceedings be initiated and conducted pursuant to the Mello-Roos Community Facilities Act of 1982 (Sections 53311 and following of the Code; hereafter in this resolution, the "Act") to establish a community facilities district to be known as "City of Dublin Community Facilities District No. 2017-1 (Dublin Crossing — Public Services)" ("CFD No. 2017-1"), in order to finance the maintenance, operation, and lighting of landscaped streets and street medians (the "Authorized CFD Services"); and WHEREAS, subsection (d) of Section 53318 of the Code specifies that the Petition shall not be acted upon prior to the time that the City receives a deposit of funds sufficient to compensate the City for all costs incurred in conducting the requested proceedings; and WHEREAS, to provide the terms and conditions under which (a) the Developer will make an initial deposit and subsequent deposits if needed, (b) the City will utilize the funds deposited to pay its costs to be incurred in conducting the requested proceedings (the "Proceedings Costs"), and (c) the City will include in its estimate of costs to be financed by CFD No. 2017-1, from proceeds of special taxes, the full amount of deposits made by the Developer for the payment of such Proceedings Costs, a form of Deposit and Reimbursement Agreement has been prepared, filed with the City Clerk and submitted to the members of this City Council for consideration at this meeting. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve the Deposit and Reimbursement Agreement, a copy of which is attached hereto as Exhibit A, and directs the execution and delivery thereof by the City Manager on behalf of the City; provided that, prior to such execution, the Deposit and Reimbursement Agreement may be modified to reflect changes mutually agreed upon by the City Manager and the Developer, with such mutual agreement to be conclusively evidenced by execution of the Deposit and Reimbursement Agreement by both parties. PASSED, APPROVED AND ADOPTED this 16th day of May 2017, by the following vote: AYES: Councilmembers Biddle, Goel, Gupta, Hernandez and Mayor Haubert NOES: ABSENT: ABSTAIN: Reso No. 52-17, Adopted 5/16/2017, Item No. 4.3 Page 1 of 2 Maya ATTEST: City Clerk Reso No. 52-17, Adopted 5/16/2017, Item No. 4.3 Page 2 of 2 City of Dublin Community Facilities District No. 2017-1 (Dublin Crossing—Public Services) DEPOSIT AND REIMBURSEMENT AGREEMENT This Deposit and Reimbursement Agreement(this "Agreement") is entered into as of April 24, 2017,by and between the CITY OF DUBLIN (the "City") a California municipal corporation and DUBLIN CROSSING, LLC, a Delaware limited liability company, (the "Developer"). City and Developer are collectively referred to herein as the"Parties." Recitals A. The City has initiated proceedings for establishment of a community facilities district,pursuant to the Mello-Roos Community Facilities Act of 1982 (the"Act") to be known as the "City of Dublin Community Facilities District No. 2017-1 (Dublin Crossing—Public Services) ("CFD No. 2017-1"); and B. In accordance with subsection (c) of Section 53318 of the California Government Code (the "Code"), a petition (the "Petition") containing the matters prescribed by Section 53319 of the Code, has been filed with the City Clerk of the City of Dublin (the "City Clerk") by all of the landowners within the proposed CFD No. 2017-1;and C. The Petition requests that proceedings be initiated to establish CFD No. 2017-1 in order to finance the maintenance, operation, and lighting of landscaped streets and street medians (the "CFD Services"); and D. Subsection (d) of Section 53318 of the Code specifies that the Petition shall not be acted upon prior to the time that the City receives a deposit of funds sufficient to compensate the City for all costs incurred in conducting the requested proceedings; and Deposit and Reimbursement Agreement 1 E. The Parties desire to enter into this Agreement to provide the terms and conditions under which the Developer will make an initial deposit and subsequent deposits if needed and under which the City will utilize the funds deposited to pay its costs to be incurred in conducting the requested proceedings. Agreement 1. The foregoing Recitals are true and correct, and the Parties expressly so acknowledge. 2. The City agrees to establish and maintain a special fund to be known as the "CFD Services Fund" for CFD No. 2017-1 (the "CFD Services Fund"). Forthwith following execution of this Agreement, the Developer agrees to make an initial deposit in the amount of $50,000 to be deposited by the City in the CFD Services Fund. From the proceeds of the initial deposit and all subsequent deposits (herein, the "Total Deposits"),if any,made by the Developer, the City is authorized to disburse amounts from the CFD Services Fund, from time to time, to pay preliminary and incidental costs and expenses incurred by the City in connection with the City's proceedings to establish CFD No. 2017-1 and to authorize and levy a special tax within CFD No. 2017-1. Without limiting the generality of the foregoing, the City may disburse amounts from the CFD Services Fund to pay third party invoices from consultants, engineers, and attorneys retained by the City to assist in the establishment of CFD No. 2017-1, and may disburse funds to reimburse the City for staff time dedicated to the establishment of CFD No. 2017-1 (the "Proceedings Payments"). 3. In the event that the balance in the CFD Services Fund is drawn down to an amount of less than $5,000, the City may notify the Developer of such fact, and the Developer shall forthwith cause the City to be provided with an additional deposit of not to exceed$25,000 Deposit and Reimbursement Agreement 2 .1■1r (i.e., the Total Deposit shall not exceed$75,000) as requested by the City to assure the continued availability of funds for the Proceedings Payments. No bonds will be issued by CFD No. 2017- 1. However, CFD No. 2017-1 shall levy special taxes on developed property at the maximum annual amount allowed by the Rate and Method of Apportionment for CFD No. 2017-1, and any special taxes not needed for CFD Services shall be used to repay the Developer for the Total Deposits. The repayment of the Total Deposits may occur over time as special taxes are collected. The repayment of the Total Deposits does not constitute a debt of the City,but is payable only to the extent of special taxes collected that are not needed to pay CFD Services. 4. The City agrees to proceed with all due diligence in conducting and completing the legal proceedings,leading to recording of a notice of special tax lien respecting the special tax obligation imposed upon the various taxable parcels of land within CFD No. 2017-1,as a foreclosable lien upon such parcels. 5. Developer acknowledges the Proceedings Payments do not include any additional fees and charges required by law, ordinance or resolution to be paid to City by Developer, such as application fees,inspection fees, and other processing fees for entitlements or permits that may be required. The expenses for which this Agreement applies are those costs not already covered by the applicable application and processing fees which fees shall be paid in the amounts and at the appropriate time consistent with the City's municipal code requirements. 6. This Agreement,including any exhibits hereto,may be amended only by mutual written agreement of the Parties. 7. City and Developer hereby renounce the existence of any form of agency relationship,joint venture or partnership between City and Developer and agree that nothing ii Deposit and Reimbursement Agreement 3 contained herein or in any document executed in connection herewith shall be construed as creating any such relationship between City and Developer. 8. Any action by any Party to this Agreement shall be brought in the appropriate court of competent jurisdiction within the County of Alameda, State of California, notwithstanding any other provision of law which may provide that such action may be brought in some other location. This Agreement shall be construed and enforced in accordance with the laws of the State of California. 9. Each Party acknowledges that this Agreement sets forth all covenants,promises, conditions and understanding between the Parties regarding the matters set forth herein, and there are no promises, conditions, or understanding either oral or in writing between the Parties other than as set forth herein. This Agreement may be executed in counterparts, all of which shall be considered one document. 10. No waiver by a Party of any provision of this Agreement shall be considered a waiver of any other provision or any subsequent breach of the same or any other provision, including the time for performance of any such provision. The exercise by a Party of any remedy provided in this Agreement or at law shall not prevent the exercise by that Party of any other remedy provided in this Agreement or at law. 11. This Agreement constitutes the entire agreement between the Parties and supersedes all prior discussions, negotiations, and agreements whether oral or written. Both Parties have had an equal opportunity to participate in the drafting of this Agreement. The usual construction of an agreement as to the drafting party shall not apply to this Agreement. Signatures to follow on next Pages Deposit and Reimbursement Agreement 4 { IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their authorized representatives as of the effective date stated above. CITY OF DUBLIN By Christopher L. Foss City Manager Attest: City Clerk By Caroline Soto Deposit and Reimbursement Agreement 5 DEVELOPER DUBLIN CROSSING, LLC, A Delaware limited Liability Company By: BrookCal Dublin LLC, A Delaware limited liability company Its: Member By: Name: ohn. 1'•yan Its: �� Pro By: Name: "go Glenn Its: CFO By: SPIC Dublin LLC, A Delaware limited liability company Its: Member By: Standard Pacific Investment Corp., A Delaware corporation Its: Member By: ".- \AflikbitA3 Name: -rig=8 .7 Its: ff Ale;,tllF lL By: ■.. rtf\ Namc: M OBI DI MA I WAS1 Its: AUTO p1z-i1 En )2EprE.IEN TATWf Deposit and Reimbursement Agreement 6 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 C/n'..'<b+l-.Tt!•ww!:<e!:ir!:,t/;�<!i�:n,✓dYr vs�<!1�./s, .:�t/.as!:�¢.:Ce%:�t!•.i✓si:!sC✓r.!aK.N�.di2.:CY_:!/.ti�La,<.:�tlr.+!:�..�./,:�!%�N.i: .T✓�a!iC.wN.{�S!:�t. A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness,accuracy, or validity of that document. State of California County of Contra Costa On Api 1 016, -O r7 before me, Yvonne M. Craves, Notary Public, Date Here Insert Name and Title of the Officer personally appeared John Ryan and Gregory Glenn Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacity,and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph YVONNE M.CRAVES is true and correct. Notary Public-California WITNESS my hand and official seal. =yti�Lsr ? Contra Costa County Commission N 4 -- � *^ Mar 26, My Comm,Expires Mar 26,2021 Signature 1701 Signature of Notary Public Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies)Claimed by Signer(s) Signer's Name: Signer's Name: ❑Corporate Officer—Title(s): ❑Corporate Officer—Title(s): Partner— ❑Lir>i ed General 0 Partner— Lined General Individual ❑Attorney in Fact Individual 0 Attorney in Fact L_J Trustee Guardian or Conservator Trustee Guardian or Conservator LI Other: Other: Signer Is Representing: Signer Is Representing: ,•a. '✓."ar.a4 •_.''.vp�, hS u .,v,-,r+.-✓ d:,+./,c sec�S yh:._e,.,i�✓:nu{\u.-ar<-a.'ri-ai.'v 'ri4'y:` c"✓:�:.:::. !:`+/S d.%c•' �!.v.5c- ©2015 National Notary Association•www.NationalNotary.org• 1-800-US NOTARY(1-800-876-6827) Item#5907 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. STATE OF CALIFORNIA COUNTY OF Alameda On April 25, 2017,before me,Elizabeth Neal,Notary Public (here insert name and title of the officer) personally appeared Thomas Burrill and Mandi Misasi 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/she/they executed the same in hisiker/their 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 California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. ELIZABETH NEAL .: :. Notary Public-California Alameda County ryi Commission#2187347 I M CCamm_Expirea Mar 20,2021_ I Signature (SEAL) 2294-00169\FORM\1227861.1 10/29/14