HomeMy WebLinkAboutAGMT - Boeing Realty (Deposit Reimbursement)DEPOSIT AND REIMBURSEMENT AGREEMENT
in connection with proposed
City of Seal Beach Community Facilities District No. 2005 -01
(Pacific Gateway Business Center)
This DEPOSIT AND REIMBURSEMENT AGREEMENT (the "Agreement ") is made
and entered into as of this "lay o , 2005, by and between the City of Seal Beach,
a municipal corporation and general law / y (t '4- "City "), and Boeing Realty Corporation, a
California corporation (the "Developer ").
RECITALS:
A. The City is undertaking proceedings to form a community facilities district (the
"District ") pursuant to the Mello -Roos Community Facilities Act of 1982, as amended
(Government Code Section 53311 et seq.) (the "Act ") for the purpose of financing certain public
facilities. The proposed boundaries of the District are described in Exhibit A, attached hereto
and incorporated herein. The proposed public facilities to be financed through the District are
set forth in Exhibit B, attached hereto and incorporated herein.
B. Pursuant to Section 53314.9 of the Act, the City Council is authorized to accept
advances of funds from any source, including, but not limited to, private persons or private
entities, and to enter into an agreement with such person or entity to repay all or a portion of the
funds under certain conditions.
C. The City and the Developer desire to enter into this Agreement in accordance
with Section 53314.9 of the Act.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth
herein, the parties hereto agree as follows:
1. Recitals. Each of the above recitals is incorporated herein and is true and correct.
2. Proposed Formation of District and Issuance of Bonds: Developer's Advance.
(a) The Developer agrees to advance moneys to the City to pay for costs
required to be incurred and paid prior to the sale of bonds in connection
with proceedings for the formation of the District and the issuance of
bonds in connection therewith. To the extent the District is not formed or
bonds are not ultimately sold, the Developer agrees to pay to the City
within 10 business days of a written demand by the City's Director of
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Administrative Services /Treasurer the costs incurred in connection with
proceedings for the formation of the District and the issuance of bonds in
connection therewith, but for which funds were not previously advanced.
(b) The City agrees to use the Developer's deposits solely to pay costs
incurred in connection with proceedings for the formation of the District
and the issuance of bonds in connection therewith, including but not
limited to, design and engineering fees, charges for City staff and City
Attorney time, and the costs of an engineer, special tax consultant,
financial advisor, market absorption consultant, appraiser, bond counsel or
other consultants deemed necessary by the City and as approved by
Developer in its reasonable discretion.
(c) The City will keep records with complete and correct entries of all
costs associated with proceedings for the formation of the District and the
issuance of the bonds in connection therewith.
(d) The City acknowledges the receipt of an initial deposit of $60,000
from the Developer. If, in the reasonable judgment of the City's Director
of Administrative Services /Treasurer, payment of the City's costs eligible
for reimbursement pursuant to this Agreement that have already been
incurred and that are reasonably expected to be incurred by the City will
cause the Developer's deposit to fall below $10,000, the City's Director of
Administrative Services /Treasurer shall make a written demand upon the
Developer for an additional deposit of moneys. Such additional amount
shall be the amount needed to bring the Developer's deposit to a balance
of $20,000. The Developer shall deposit such additional amount, by wire,
company check, cash or cashiers' check, within ten business days of
receipt of the demand of the Director of Administrative
Services /Treasurer. In the event the Developer fails to make the deposits
required by this Section, the City may cease the proceedings for the
formation of the District and the issuance of bonds until all required
moneys have been deposited with the City.
(e) Prior to the election on the levy of special taxes and the issuance of
bonds in connection with the District, the Developer shall have the right to
notify the City at any time, in writing, of its intention to withdraw its
consent to the formation of the District or the issuance of bonds. Upon
receipt of such notice, the City shall instruct its consultants to cease work
immediately thereafter. The Developer shall be responsible to pay the
costs and expenses incurred by the City or any City consultant or advisor
relating to the proposed District formation and /or bond issuance until work
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with respect to the proposed formation or bond issuance ceases following
the receipt of the Developer's notice of withdrawal of consent.
(f) The City will provide to the Developer a monthly summary of how
the advances have been spent.
3. Reimbursement Procedure. In accordance with Section 53314.9 of the
Act, it is hereby agreed by the parties hereto that, if the qualified electors of the proposed District
do not approve the proposed special tax to be levied within the District, the City shall return to
the Developer any funds which have been advanced by the Developer and have not been
expended or incurred for any authorized purpose by the time of the election and the City shall
have no liability to the Developer to reimburse it for any of amounts previously advanced by the
Developer and expended by the City. Such returned funds shall be with interest, determined at
the rate and by the method established by the City's Director of Administrative
Services /Treasurer. If the District is formed and the District issues, sells and delivers bonds, the
amounts advanced by the Developer pursuant to this Agreement will be reimbursable to the
Developer from the proceeds of the bonds.
4. Discretion of City. The Developer understands that formation of the District and
the issuance of bonds in connection therewith shall be in the sole discretion of the City. No
provision of this Agreement shall be construed as a promise, warranty or agreement by the City
to form the District or to issue bonds. The City shall have no liability to the Developer pursuant
to this Agreement for its decision not to form the District or issue bonds.
5. Notices. Any notice to be provided pursuant to this Agreement shall be delivered
to the following addresses:
Developer:
City:
Copy to:
S7296/0001/824047.1
Boeing Realty Corporation
4900 E. Conant St., Building 1
Long Beach, CA 90808 -1746
Attention: Stephane M. Wandel
City of Seal Beach
211 Eighth Street
Seal Beach, California 90740
Attention: City Manager
Richards, Watson & Gershon
Attorneys at Law
355 S. Grand Avenue, 40th Floor
Los Angeles, CA 90071
Attention: Quinn Barrow
Facsimile: (213) 626 -0078
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Each party may change its address for delivery of notice by delivering written notice of such
change of address to the other party.
6. Assignment. The Developer may not assign its interest in this Agreement without
the prior written consent of the City which consent shall not be unreasonably withheld.
7. 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 permitted by law.
8. Entire Agreement. This Agreement contains the entire agreement between the
parties with respect to the matters provided for herein.
9. Non - Liability of Officials and Employees of the City. No representative, agent,
attorney, consultant, or employee of the City shall personally be liable to the Developer in the
event of any default by the City under the terns of this Agreement.
10. Independent Contractor. It is agreed to that the Developer shall act and be an
independent contractor and not an agent or employee of the City.
11. Time of Essence. Time is of the essence in the performance of this Agreement.
12. Authority to Execute. The persons executing this Agreement on behalf of the
parties warrant that they are duly authorized to execute this Agreement.
13. Attorneys' Fees. If any party brings an action to enforce the terms hereof or
declare its rights hereunder, the prevailing party in any such action shall be entitled to its
reasonable attorneys' fees to be paid by the losing party as fixed by the court.
14. Interpretation. This Agreement shall be interpreted as though prepared by both
parties.
15. Amendments. This Agreement may be amended or modified only by written
instrument signed by all parties.
16. Counterparts. This Agreement may be executed in counterparts, each of which
shall he deemed an original.
17. Governing Law. This Agreement and any dispute arising hereunder shall be
governed by and interpreted in accordance with the laws of the State of California.
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18. No Third Party Beneficiaries. No person or entity shall be deemed to be a third
party beneficiary hereof, and nothing in this Agreement (either express or implied) is intended to
confer upon any person or entity, other than the City, the District and the Developer, any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year
first above written.
APPROVED AS TO FORM:
ar.t4.14A.r-
City Attorney
S7296/0001/824047.1
CITY OF SEAL BEACH
for the City of Seal Beach Community Facilities
District No. 2005 -01 (Pacific Gateway Business
Center)
BOEIN
By:
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Alan . DeFrancis
Vice President
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EXHIBIT "A"
BOUNDARIES OF PROPOSED
CITY OF SEAL BEACH COMMUNITY FACILITIES DISTRICT 2005-01
(PACIFIC GATEWAY BUSINESS CENTER)
S7296/0001/824047.1
A-1
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EXHIBIT B
DESCRIPTION OF IMPROVEMENTS
S7296/0001/824047.1
B-1
I. EXECUTIVE SUMMARY
Capital Improvements
This report summarizes eligible grading, landscaping,utilities, storm drain facilities, street facilities,
water facilities and sanitary sewer facilities within the proposed project. The Community Facilities
District(CFD)may also finance certain development charges. The lead agency in forming the CFD
will be the City of Seal Beach. The estimate of probable construction costs for these facilities is
summarized as follows.
Sanitary Sewer Facilities $725,245
Water Facilities $573,550
Roadway Facilities $6,946,107
Landscape &Irrigation $969,717
Dry Utilities and Joint Trench—limited to 5% of project fund amount(Moot) $382,916
Development Fees $2,415,000
Consultant Costs $1,000,000
Subtotal $13,012,535
10% Contingency (Excluding Fees) $1,059,754
Plan Check, Testing, Inspection, and Permits $500,000
Project Management $600,000
TOTAL ESTIMATED COST TO BOND ISSUANCE $15,172,289
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