HomeMy WebLinkAboutAmended & Restated Deposit/Reimbursement Agreement
AMENDED AND RESTATED DEPOSIT/REIMBURSEMENJeA^^M|NJ!tyofperjurythatthe above and foregoing is a true and correct copy of an T i n I_T iv • A 1,1. •»_ original on deposit within the records
of the City of 1 emeCUla rUDllC financing AUttlOnty Temecula. In witness whereof, I have hereunto set Community Facilities District No. 03-02 ^ hand a^d affixed the seal of the City
of Temecula ,-L . . „ , , this \y^ day of rWv\ 20 OQ". (Ronpaugh Ranch) SUSANJ/VJONES, CMC, THIS AMENDED AND RESTATED DEPOSIT/REIMBURSEMENT^GREEI _ "Agreement") is by and among the City
of Temecula (the "City"), the Temecula Public Financing Authority (the "Authority") for itself and on behalf of the proposed Temecula Public Financing Authority Community Facilities
District No. 03-02 (Roripaugh Ranch) (the "CFD"), Ashby USA, LLC ("Ashby") and Galloway 220, LLC ("Galloway" and, together with Ashby, the "Developers"). RECITALS: WHEREAS, in 2001,
the City, the Authority (for itself and on behalf of the proposed CFD) and the Developers entered into into a Deposit/Reimbursement Agreement (the "Original Agreement"), pursuant to
which the Developers deposited funds with the City to ensure payment of the costs of the Authority and the City in forming the Authority and the CFD, and otherwise in connection with
the issuance of bonds (the "Bonds") for the CFD and the proposed expenditure of the proceeds thereof, which Original Agreement provided that the funds so advanced were to be reimbursed
to the Developers from the proceeds of any Bonds issued by the Authority for the CFD to the extent provided therein; and WHEREAS, since the parties hereto entered into the Original Agreement,
the name of the CFD has changed from "Temecula Public Financing Authority Community Facilities District No. 01-1 (Butterfield Stage Road)" to "Temecula Public Financing Authority Community
Facilities District No. 03-02 (Roripaugh Ranch)," and Galloway no longer owns property within the proposed boundaries of the CFD; and WHEREAS, the Initial Costs (as defined in the Original
Agreement) have been in excess of the amounts expected at the time of execution of the Original Agreement; and WHEREAS, in light of the foregoing, the parties to the Original Agreement
now desire to amend and restate the Original Agreement as provided herein, in order to cause the written agreement among the parties to the Original Agreement to reflect the current
understanding of the parties thereto as to the continued advancement of funds necessary to pay the Initial Costs, and the prospective reimbursement of amounts advanced by the Developers
with proceeds of the Bonds, if any Bonds are issued by the Authority for the CFD. AGREEMENT; NOW, THEREFORE, in consideration of the foregoing and the mutual covenants set forth herein,
and for other consideration the receipt and sufficiency of which is hereby
.. • _ ! hereby certify, under the penalty of perjury that the "" '• '• ' • • • • • • • • • • • . • • • • . • •. • • . -. . . • . -above and'fbregoing Is a true antf'correct cofty of
an' original on deposit within the.records of the City of • . • • • • • • • -. • • • -• ; ••-••.•. . • • • • -. • • • . •• •. ••...,-. .;-.: • • -. . -: • -. -*•'.-.-.• •TEmeeula.-ln
wttness'whereof, I have hereunto set .••• my hand and affixed the seal of the City of Temecula this t44W day of ftf»r\V 20 PC? . SUSAN VV. JONES, CMC, City Clerk. acknowledged, the parties
hereto agree that the operative provisions of the Original Agree* shall be amended and restated as follows: Section 1. The Deposits. In 2001, Ashby provided to the City $113,500 and
provided to the City $18,500 (collectively, the "2001 Deposits"), to be used by the City to pay the costs in conducting proceedings for the formation of the Authority and the CFD, and
for the issuance of bonds for the CFD (as more fully described in Section 2(a) below, the "Initial Costs").Subsequently, Ashby has provided to the City additional deposits of $68,000
and $70,000 for such purposes collectively, the "Ashby Deposits"). The City, by its execution hereof, acknowledges receipt by the City of the 2001 Deposits and the Ashby Deposits. The
checks representing the 2001 Deposits have been cashed by the City, and the 2001 Deposits and the Ashby Deposits were commingled with other funds of the City for purposes of investment
and safekeeping; however, the City at all times has maintained records as to the expenditure of the 2001 Deposits and the Ashby Deposits. Ashby hereby agrees to advance any additional
amounts necessary to pay any Initial Costs incurred by the City or the Authority, in excess of the amount of the 2001 Deposits and the Ashby Deposits, promptly upon written demand therefore
by the Director of Finance of the City; (the "Additional Deposits" and, collectively with the 2001 Deposits and the Ashby Deposits, the "Deposits"). Notwithstanding any other provision
of this Agreement, the City Manager may direct City and Authority staff and consultants to cease all work related to the issuance of the Bonds and/or the formation of the CFD until any
additional amount so demanded has been received by the City. Section 2. Use of Funds. The Deposits shall be administered as follows: (a) The Director of Finance 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 or the Authority employed in connection
with the 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); (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 Bonds; (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; (iv) a reasonable charge for City staff time, as determined by the City Manager in his sole discretion,
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 incurred by the City or the Authority with respect to the CFD or the Bonds after the date of execution of this Agreement. The Developers hereby acknowledge that, at
a minimum, the following amounts will or may be charged against the Deposits, whether or not the CFD is formed and the Bonds are issued: (i) $75,000.00 to David Taussig and Associates,
Inc., special tax consultant, (ii) at least $30,000.00 to an appraiser, (iii) at least $12,000.00 to Richards, Watson & Gershon, City Attorney and general counsel to the Authority, (iv)
$22,000.00 for a market absorption analysis related to the CFD, (v) $65,000.00 to Fieldman, Rolapp & Associates for financial advisory services, (vi) $70,000.00 to Albert A. Webb Associates
for engineering services related to the facilities proposed to be financed by the CFD, and (vii) at least $25,000.00 to the City for City Staff time in analyzing the -2-
I hereby certify, under the penalty of perj< >ry thai the above and foregoing is a true and correct copy of an original on deposit within the records of the City of Temecula. In witness
whereof, I have hereunto set Iptan^ay J-g^g^f Jga /^\(»^ i^^J^IL-.. CFD, the Bonds and -the expenditure of the proceeds thereof, includin; of City overhead expense related thereto, including
all other actual costs and expenses incurred by the City. Draws on the Deposits shall first be charged to the 2001 Deposits, and when the 2001 Deposits have been fully expended, then
to the Ashby Deposits, and when the 2001 Deposits and the Ashby Deposits have been fully expanded, then to any Additional Deposits. (b) If the Bonds are issued under the Mello-Ross Community
Facilities Act of 1982, as amended (the "Act") by the Authority secured by special taxes levied upon the land within the CFD, the Authority shall provide for reimbursement to the Developers,
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 Director of Finance of the City shall return the then unexpended Deposits to the Developers,
without interest, less an amount equal to any costs incurred by the City or the Authority or that the City or the Authority 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 Bonds are not issued, the Director of Finance of the City shall, within ten (10) business days after adoption
of the resolution stating the intent of the Authority to terminate proceedings under the Act with respect to the issuance of the Bonds, return the then unexpended Deposits to the Developers,
without interest, less an amount equal to any costs incurred by the City or the Authority or that the City or the Authority is otherwise committed to pay, which costs would be subject
to payment under Section 2(a) above but have not yet been so paid. (d) In the event that all or any portion of the Deposits drawn upon in accordance with Section 2(a) are reimbursed
with proceeds of Bonds (as described in Section 2(b)), or any portion of any unexpended Deposits are otherwise returned to the Developers (as described in Section 2(b) or 2(c)), the
amount so reimbursed or returned shall be applied first against any Additional Deposits advanced by Ashby and against the Ashby Deposits until the amount of any such Additional Deposits
and the amount of the Ashby Deposits have been fully returned or reimbursed, as applicable; and then against the 2001 Deposits, 86% to Ashby and 14% to Galloway. Section 3. Reimbursement
of Other Developer Costs. Nothing contained herein shall prohibit reimbursement of other costs and expenses of Ashby or any successor in interest thereto with respect to 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 to Ashby and/or any of its successors in
interest and special consultant expenses. Any such reimbursement shall be made (a) solely from the proceeds of the Bonds, (b) only to the extent otherwise permitted under the Act, (c)
if the Bond issue already includes full reimbursement of all amounts charged against the Deposits, and (d) only if otherwise provided for, at the reasonable discretion of the Authority,
in the proceedings for the issuance of the Bonds. Section 4. Agreement Not Debt or Liability of City or Authority. It is hereby acknowledged and agreed that this Agreement is not a debt
or liability of the City or the Authority, as provided in Section 53314.9(b) of the Act. Neither the City nor the Authority shall in any event be liable hereunder other than to return
the unexpended and uncommitted -3-
portions of the Deposits as provided in Section 2 above and provide an accounting under Section 7 below. Neither the City nor the Authority shall be obligated to advance any of their
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, the Board of Directors of the Authority or officer, employee
or agent of the City or the Authority 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 or the Authority to issue any bonds, or to expend any of their own funds in connection with the CFD. Section 6. Severability. 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 City
Director of Finance shall provide the Developers with a written accounting of moneys expended under this Agreement, within ten (10) business days of receipt by the Director of Finance
of the City of a written request therefor submitted by an authorized officer of a 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. Section 8. Multiple Bond Issues. In the event that the Authority determines to issue more than one series of the Bonds (due to the establishment
of improvement areas within the CFD or otherwise), or if the Authority determines to establish a second community facilities district which includes land originally contemplated to be
included in the CFD and determines to issue bonds for such second community facilities district, any portion of the Deposits not reimbursed from the first issue of Bonds shall be reimbursed,
without interest, from any such other issue of Bonds of the CFD or of bonds of such second community facilities district; but in any event only to the extent such reimbursement is permitted
under the Act. Section 9. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto. Section 10. Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original. I hereby certify, under the penalty of perjury that the above and foregoing is a true and correct
copy of an original on deposit within the records of the City of Temecula. In witness whereof, I have hereunto set my hand and affixed the seal of the City of Temecula this |H day of
rrp>-it 20 £>Cr> ^^^m^^NES^^rfWper^ ~' A^vkOT/L^
Section 11. Original Agreement Superceded. This Agreement supercedes in its entirety the Original Agreement. Upon execution of this Agreement by all of the parties hereto, the Original
Agreement shall be deemed terminated. * * * * * * * * IN WITNESS THEREOF, the parties hereto have executed this Agreement as of the day and year written alongside their signature line
below. Executed on: March 2* 2004 Executed on: March ^ . 2004 DEVELOPERS: ASHBY USA, LLC, a limited liability company By: Ashby Development Company, Inc., a California corporation, Managing
Member Justin K. Ashby,-¥i«'PresicleTtf--> By: USAInye^SrientP^rtners,LLC, a Nevada limited liability p0rn#any/!VLemt Executed on: March 16,2004 Executed on: March 16,2004 I hereby certify,
under the penalty of perjury that the above and foregoing is a true and correct copy of an original on deposit within the records of the City of Temecula. In witness whereof, I have
hereunto set my hand and affixed the seal of the City of Temecula this, iH*K day of Ajrit_ , _2a_rt£_ ~ IBS,' this S CITY: CITY OF TEMECULA Shawn D. Nelson, City Manager AUTHORITY: TEMECULA
PUBLIC FINANCING AUTHORITY, for itself and on behalf of the proposed Temecula Public Financing Authority Community Facilities District 03f^fKoriparfgh Ranch) Nelson, Executive Director
-5-
Section 11. Original Agreement Superceded. This Agreement supercedes in its entirety the Original Agreement. Upon execution of this Agreement by all of the parties hereto, the Original
Agreement shall be deemed terminated. * * * * * * * * IN WITNESS THEREOF, the parties hereto have executed this Agreement as of the day and year written alongside their signature line
below. Executed on: March **_, 2004 Executed on: March 1±, 2004 DEVELOPERS: ASHBY USA, LLC, a limited liability company By: Ashby Development Company, Inc., a California corporation,
Managing Member By: USA aNev, By: Its: Executed on: March 16,2004 Executed on: March 16,2004 I hereby certify, under the penalty of perjury that the above and foregoing is a true and
correct copy of an oriqinal on deposit within the records of the City of Temecula. In witness whereof, i have hereunto set eal of the City of Temecula CITY: CITYOFTEMECULA By: Shawn
D. Nelson, City Manager AUTHORITY: TEMECULA PUBLIC FINANCING AUTHORITY, for itself and on behalf of the proposed Temecula Public Financing Authority Community Facilities District 03?02/fj&ripadgh
Ranch) By: lhawn D. Nelson, Executive Director -5-
Section 11. Original Agreement Superceded. This Agreement supercedes in its entirety the Original Agreement. Upon execution of this Agreement by all of the parties hereto, the Original
Agreement shall be deemed terminated. * * * * * * * * EM WITNESS THEREOF, the parties hereto have executed this Agreement as of the day and year written alongside their signature line
below. Executed on: March W. 2004 Executed on: March ^ , 2004 Executed on: March 16, 2004 Executed on: March 16, 2004 I hereby certify, under the penalty of perjury that the above and
foregoing is a true and correct copy of an original on deposit within the records of the City of Temecula. In witness whereof, I have hereunto set my hand and affixed the seal of the
City of Temecula this <H^ dav of A^L 20 &*. DEVELOPERS: ASHBY USA, LLC, a limited liability company By: Ashby Development Company, Inc., a California corporation, Managing Member Justin
K. Ashby,-VieePresicferrt-^ By: USA a Ne1 GALLOWAY 220, LLC77717 CITY: CITY OF TEMECULA Shawn D. Nelson, City Manager AUTHORITY: TEMECULA PUBLIC FINANCING AUTHORITY, for itself and on
behalf of the proposed Temecula Public Financing Authority Community Facilities District 03^02/moriparfgh Ranch) Mhf^Shawii D. Nelson, Executive Director -5-
Section 11. Original Agreement Superceded. This Agreement supercedes in its entirety the Original Agreement. Upon execution of this Agreement by all of the parties hereto, the Original
Agreement shall be deemed terminated. * * * * * * * * IN WITNESS THEREOF, the parties hereto have executed this Agreement as of the day and year written alongside their signature line
below. Executed on: March W. 2004 Executed on: March ^ . 2004 Executed on: March 16,2004 Executed on: March 16,2004 I hereby certify, under the penalty of perjury that the above and
foregoing is a true and correct copy of an original on deposit within the records of the City of Temecula. In witness whereof, I have hereunto set my hand and affixed the seal of the
City of Temecul. tthhiiss_ !M^ dav of AorU 20,.fek. DEVELOPERS: ASHBY USA, LLC, a limited liability company By: Ashby Development Company, Inc., a California corporation, Managing Member
Justin K. Ashby,-Vt^T^esiaertt-^ By: USAInyelst By: Its: CITY: CITY OF TEMECULA Shawn D. Nelson, City City Manager AUTHORITY: TEMECULA PUBLIC FINANCING AUTHORITY, for itself and on behalf
of the proposed Temecula Public Financing Authority Community Facilities District OlKE/fKoriparfgh Ranch) 'hawn D. Nelson, Executive Director -5-