HomeMy WebLinkAbout0016_4_CFD 2006-1 Formation of IA JJ and KK - Exhibit C Reimburstment AgreementREIMBURSEMENT AGREEMENT
CITY OF LAKE ELSINORE (SUMMERLY)
COMMUNITY FACILITIES DISTRICT NO. 2006-1
IMPROVEMENT AREA JJ AND IMPROVEMENT AREA KK
FORMATION PROCEEDINGS
THIS REIMBURSEMENT AGREEMENT (this “Agreement”) dated as of January 1, 2017
is entered into by and between the City of Lake Elsinore, a general law city organized and existing
under the laws and constitution of the State of California (the “City”), and McMillin Summerly, LLC,
a California limited liability company (the “Owner”).
R E C I T A L S :
A.The Owner owns approximately 24.66 acres of land described in Exhibit A
attached hereto, which land is consists of the land within Improvement Area DD of City of Lake
Elsinore Community Facilities District No. 2006-1 (the “District”);
B.The Owner owns approximately 37.55 acres of land described in Exhibit B
attached hereto, which land is consists of the land within Improvement Area GG of the District;
B.The Owner desires to (i) form Improvement Areas JJ and KK of the District from
the property currently within the boundaries of Improvement Areas DD and GG, respectively; (ii)
authorize the District to incur bonded indebtedness for Improvement Areas JJ and KK and (iii)
upon the completion of the proceedings described in the forgoing subsections (i) and (ii), dissolve
Improvement Areas DD and GG, all pursuant to the Mello-Roos Community Facilities Act of 1982
(Government Code Section 53311 et seq.) (the “Act”) (such proceedings referred to herein as the
“Formation Proceedings”).
B.The City and the Owner are desirous of entering into this Agreement in order to
provide a mechanism by which the Owner may advance certain funds related to the cost of the
Formation Proceedings, such costs to be reimbursed to the Owner for the amounts advanced
hereunder, from proceeds of bonds issued by the District for Improvement Area JJ and
Improvement Area KK, if any.
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.Formation Proceedings and Issuance of Bonds.
(a)At the request of the Owner, the City will undertake to complete the
Formation Proceedings. The City will retain, at the Owner’s expense, the necessary consultants
to analyze the proposed Formation Proceedings and issuance of bonds, including an engineer,
special tax consultant, financial advisor, bond counsel, market absorption consultant, appraiser
and other consultants deemed necessary by the City. In addition, City staff time spent in
connection with the Formation Proceedings and the issuance of bonds shall be at Owner’s
expense.
2
(b)In order to begin the process of analyzing the Formation Proceedings, the
Owner has advanced to the City a sum totaling $35,000. From time to time, the Owner shall make
additional advances to the City within 15 days following receipt from the City of a request for an
additional advance to cover the costs of the Formation Proceedings and/or issuing bonds. In the
event the Owner does not deliver the requested amount to the City within such 15-day period, the
City will have no obligation to proceed with the analysis or bond issue unless and until such
additional advance is received. The Owner shall have the right to notify the City at any time, in
writing, of its intention to abandon the Formation Proceedings or the issuance of bonds. Upon
receipt of such notice, the City shall instruct its consultants to cease work as soon as practicable.
The Owner shall be responsible to pay all costs and expenses incurred by the City or any City
consultant or advisor prior to the date on which the City’s consultants are notified of the Owner’s
notice of abandonment. Notwithstanding a decision of the Owner to abandon the Formation
Proceedings or the issuance of bonds, the City may, in its sole discretion, elect to proceed with
the Formation Proceedings and/or the issuance of bonds with funds other than those of the
Owner; provided, however, that, in executing this Agreement, the Owner shall not be deemed to
have waived their right to object to the Formation Proceedings or the issuance of bonds.
(c)The City will provide to the Owner on request a summary of how the
advances have been spent and the unexpended balance remaining. The amounts advanced by
the Owner will be reimbursable to the Owner, without interest, from the proceeds of bonds issued
by the District for Improvement Area JJ and Improvement Area KK, if any. In the event that bonds
are not issued to provide a source of reimbursement to the Owner, the City shall have no liability
to the Owner to reimburse them for any of amounts previously advanced by the Owner and
expended by the City in accordance with this Agreement.
3.Reimbursement Procedure. The City shall return any funds which have been
advanced by the Owner which are not expended on the purposes set forth in Section 2 above.
Such returned funds shall be without interest.
4.Abandonment of Formation Proceedings. The Owner understands that the
undertaking of the Formation Proceedings 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
undertake the Formation Proceedings or to issue any bonds. The City shall have no liability to
Owner for its decision not to undertake the Formation Proceedings or issue bonds.
5.Indemnification and Hold Harmless. The Owner hereby assumes the defense of,
and indemnifies and saves harmless, jointly and severally, the City and each of its officers,
directors, employees and agents, from and against all actions, damages, claims, losses or
expenses of every type and description to which they may be subjected or put, by reason of, or
arising out of any acts or omissions taken by the Owner or any of the Owner’s officers, employees,
contractors and agents with respect to the Formation Proceedings.
6.Notices. Any notice to be provided pursuant to this Agreement shall be delivered
to the following addresses:
Owner McMillin Summerly, LLC c/o Pacific Ventures Management
LLC, a Delaware limited liability company
4343 Von Karman Avenue, Suite 350
Attention: Jason Perrin, CFO/CIO
Telephone: 949-955-0984
Email: jperrin@pacv.com
3
City:City of Lake Elsinore
130 South Main Street
Lake Elsinore, CA 92530
Attn: Assistant City Manager
Telephone: (951) 674-3124
Email: jsimpson@lake-elsinore.org
With a copy to:Stradling Yocca Carlson & Rauth
660 Newport Center Drive, Suite 1600
Newport Beach, CA 92660
Attention: Brian Forbath, Esq.
Telephone: (949) 725-4193
Email: bforbath@sycr.com
Each party may change its address for delivery of notice by delivering written notice of
such change of address to the other party.
7.Assignment. The Owner may not assign its interest in this Agreement without the
prior written consent of the City.
8.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.
9.Entire Agreement. This Agreement contains the entire agreement between the
parties with respect to the matters provided for herein.
10.Amendments. This Agreement may be amended or modified only by written
instrument signed by all parties.
11.Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original.
12.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.
13.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 and the Owner, any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
14.Singular and Plural; Gender. As used herein, the singular of any word includes
the plural, and terms in the masculine gender shall include the feminine.
15.Termination. This Agreement shall terminate and be of no further force and effect
on January 1, 2021 unless expressly amended by the parties; provided, however, that the
Owner’s obligations under Section 5 shall survive the termination and the City’s obligation to
provide reimbursement in accordance with Section 3 for expenses incurred prior to the termination
date shall also survive termination.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
S-1
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year
first above written.
CITY OF LAKE ELSINORE, a political subdivision
of the State of California
By:
Assistant City Manager
ATTEST:
By:
Susan M. Domen, City Clerk
McMillin Summerly, LLC, a Delaware limited liability
company
By: PV Development Management LLC, a
Delaware limited liability company, as property
manager
By: Pacific Ventures Management LLC, a
Delaware limited liability company, its Manager
By:
Name:
Title:
APPROVED AS TO FORM:
CITY ATTORNEY
By:
A-1
EXHIBIT A
DESCRIPTION OF IMPROVEMENT AREA DD PROPERTY
Real property in the City of Lake Elsinore, County of Riverside, State of California, described as
follows:
Assessor’s Parcel Nos:
371-270-049
371-270-020
B-1
EXHIBIT B
DESCRIPTION OF IMPROVEMENT AREA GG PROPERTY
Real property in the City of Lake Elsinore, County of Riverside, State of California, described as
follows:
Assessor’s Parcel Nos:
371-040-015
371-040-016
371-270-022
371-270-004
371-270-054 (portion referenced as No. 5 in Parcel 1 below and as further described in Notice of
Lot Line Adjustment No. 16-416, recorded in the Official Records of the County of Riverside as
Document No. 2016-0281439 on July 7, 2016)