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HomeMy WebLinkAboutC23200 Ponderosa Homes II / Assessment DistrictREQUEST: SUBMITTED BY: DATE: CONTENTS: CITY OF PALM DESERT STAFF REPORT Contract No. C23200 APPROVAL OF DEPOSIT AND REIMBURSEMENT AGREEMENT WITH PONDEROSA HOMES II, INC., FOR COSTS ASSOCIATED WITH THE FORMATION OF AN ASSESSMENT DISTRICT DENNIS M. COLEMAN, REDEVELOPMENT/HOUSING FINANCE MANAGER NOVEMBER 18, 2004 DEPOSIT AND REIMBURSEMENT AGREEMENT WITH PONDEROSA HOMES II, INC. Recommendation: By Minute Motion, that Council approves the Deposit and Reimbursement Agreement between Ponderosa Homes II, Inc., and the City of Palm Desert, a municipal corporation. Executive Summary: On behalf of the various owners of the properties within what is known as Section 29, Ponderosa Homes has requested the City form Assessment District No. 2004-2 ("District") for the purposes of financing certain public improvements. The various owners have real property in the City that will be benefitted by the improvements. The City desires to be reimbursed for all of its costs and expenses associated with the formation of the new assessment district. Therefore, the property owners and the City desire to enter into an agreement to provide for the deposit of funds with the City, in order to reimburse the City of all of the costs and expenses associated with the formation of the District, and issuance of bonds in connection with such a district. Discussion: The District is located in a northwest section of the City with Monterey Avenue to West, Gerald Ford Drive to the South, Portola Avenue to the East and Avenue 35 to the North. The proposed District is approximately 300 acres and includes five property owners. The proposed District includes property owned by the Macloed Family Trust, Lowes (,-- RDA I knnis Coleman -DAL\,WP'REPOR IS Scct ion 14 Asse,mcm D,strc Fornaton w pi Contract No. C23200 Staff Report Approval of Deposit/Reimbursement Agreement with Ponderosa Homes II, Inc. Page 2 November 18, 2004 Corporation, The Sares-Regis Group, Rillington Communities, and Ponderosa Homes II, Inc. As the proposed boundaries indicate, The Noble Company was included preliminarily, but they have decided not to participate. The public improvements to be funded by the District include street improvements on Monterey Avenue, Gerald Ford Drive, Gateway Drive, Dinah Shore, Portola and others. The District will also fund storm drain improvements, water main improvements, sewer improvements, and will relocate utility poles. Ponderosa Homes II, Inc. ("Depositors") agrees to deposit $50,000 with the City to pay for the total aggregate costs required to be incurred and paid prior to the sale of bonds in connection with the proceedings for the formation of the District and the issuance of bonds. If during the formation of the District, payment of the Depositors' authorized costs that have already been incurred or are reasonably expected to be incurred cause the Depositors' deposit to fall below $1.00, the City Finance Director shall make a written demand upon the Depositors for an additional deposit of moneys. If the District is formed and bonds are issued, sold and delivered, the amounts deposited by the Depositors pursuant to this agreement shall be reimbursable to the Depositors from the proceedings of the bonds. In the event the District is not formed or bonds are not ultimately sold, the Depositors agree to pay to the City within ten business days, all authorized costs that have been incurred, less the amount that have previously been deposited. Submitted by: Dennis M. Coleman Redevelopment/Housing Finance Manager Approval: GYP • cCarthy, 1- CM/ Department Head: edevelopment/Housing lopment Paul GI son finance Director Carlos L. Orteg7City Manager C. `RDA Dennis C'olerrun-DA CA.WPRPPOR I S Seaton 29 Asscsr,cnt Dist act Formation wp,l Contract No. C23200 DEPOSIT AND REIMBURSEMENT AGREEMENT This DEPOSIT AND REIMBURSEMENT AGREEMENT (the "Agreement") is made and entered into as of this 18th day of November, 2004 by and between the City of Palm Desert, a municipal corporation (the "City") and Ponderosa Homes II, Inc. (the "Depositor"). RECITALS: A. The Depositor has requested the City to form Assessment District No. 2004-2 (the "District") for the purpose of financing certain public improvements (the "Improvements"). The proposed boundaries of the District are described in Exhibit A, attached hereto and incorporated herein. The Improvements to be financed through the District are set forth in Exhibit B, attached hereto and incorporated herein. B. The City desires to be reimbursed for all of its costs and expenses associated with the formation of the District and the issuance of bonds in connection with such District. C. The Depositor is one of five owners of real property in the City that will be benefited by the Improvements (each a "Participant" and collectively the "Participants"). The City has determined a fair and equitable proportionate share of the costs and expenses associated with the formation of the District and the issuance of bonds in connection with such District to be paid by each Participant. D. The Depositor and the City desire to enter into this Agreement to provide for the Depositor to deposit funds with the City in order to reimburse the City for the costs and expenses associated with the formation of the District and the issuance of bonds in connection therewith. 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; Depositor's Deposit. (a) The Depositor agrees to deposit moneys with the City to pay for the total aggregate costs required to be incurred and paid prior to the sale of bonds in connection with (i) the proceedings for the formation of the District and the issuance of bonds in connection therewith; and (ii) the review and approval of plans and engineering documents, appraisals, water plans, environmental assessments, feasibility studies and other documents relating to the Improvements P6401 /0001 /766565.2 Contract No. C23200 (b) The City agrees to use the Depositor's deposits solely to pay the costs and expenses incurred by the City in connection with proceedings for the formation of the District and the issuance of bonds in connection therewith, including but not limited to, the costs of an assessment engineer, financial advisor, appraiser, bond counsel, disclosure counsel, issuer's counsel and other consultants deemed necessary by the City ("Authorized Costs"). (c) To the extent the District is not formed or bonds are not ultimately sold, the Depositor agrees to pay to the City within ten business days of a written demand by the Finance Director of the City all Authorized Costs that have been incurred, Tess the amount of funds that have previously been deposited by the Depositor pursuant to this Agreement. (d) The City will keep records with complete and correct entries of all deposits made by the Depositor pursuant to this Agreement and all Authorized Costs incurred by the City and/or paid from any deposits made by the Depositor. Within a reasonable time following a request, the City will provide to the Depositor a summary of the foregoing. (e) The Depositor agrees to deposit the sum of $50,000 by wire or cashier's check within two business days of the execution of this Agreement. If, in the judgment of the Finance Director of the City, payment of the Authorized Costs that have already been incurred and that are reasonably expected to be incurred by the City will cause the Depositor's deposit to fall below $1 the Finance Director of the City shall make a written demand upon the Depositor for an additional deposit of moneys. Such additional amount shall be the amount needed to bring the Depositor's deposit to a balance of $50,000 or such greater amount that is anticipated by the Finance Director of the City to be necessary to meet the Authorized Costs to be incurred by the City. The Depositor shall deposit such additional amount by wire or cashiers' check within ten business days of receipt of the demand of the Finance Director of the City. In the event the Depositor fails to make the deposit 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. 3. Reimbursement Procedure. If the District is not formed, the City shall return to the Depositor any funds which have been deposited by the Depositor and which are not needed to pay for any Authorized Cost and the City shall have no liability to the Depositor to reimburse it for any amounts previously deposited by the Depositor and committed or expended by the City to pay for the Authorized Costs. Such returned funds shall be with interest, determined at the rate and by the method established by the Finance Director of the City. If the District is formed and bonds are issued, sold and delivered in connection therewith, the amounts deposited by the Depositor pursuant to this Agreement shall be reimbursable to the Depositor from the proceeds of the bonds. 4. Discretion of City. The Depositor 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 P6401 /0001 /766565.2 2 Contract No. C23200 agreement by the City to form the District or to issue, sell and deliver the bonds. The City shall have no liability to the Depositor pursuant to this Agreement for its decision not to form the District or issue, sell and deliver the bonds. 5. Notices. Any notice to be provided pursuant to this Agreement shall be delivered to the following addresses: Depositor: Ponderosa Homes II, Inc. 6671 Owens Drive Pleasanton, CA 94588 Attn: Linda F. Morasch City: City of Palm Desert 73-510 Fred Waring Drive Palm Desert, California 92260 Copy to: Richards, Watson & Gershon 355 South Grand Avenue, 40th Floor Los Angeles, California 90071-3101 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 Depositor may not assign its interest in this Agreement without the prior written consent of the City. 7. 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 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 Depositor in the event of any default by the City under the terms of this Agreement. 10. Independent Contractor. It is hereby agreed that the Depositor shall act and be an independent contractor and not an agent 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. Release. Except in the event of the City's sole negligence or willful misconduct, the Depositor hereby fully and irrevocably releases, waives, acquits and P6401 /0001 /766565.2 3 Contract No. C23200 discharges the City and its elective or appointive boards, council members, officers, and employees of and from any and all claims, rights, grievances, demands, damages, debts, liabilities, obligations, costs, expenses, causes of action, or damages of any nature, including attorneys' fees, whether known or unknown, existing or potential, anticipated or unanticipated, or which may hereafter be sustained, to the extent that such claims arise out of, or are related to, this Agreement. 14. 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. 15. Interpretation. This Agreement shall be interpreted as though prepared by both parties. 16. Amendments. This Agreement may be amended or modified only by written instrument signed by all parties. 17. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original. 18. 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. 19. 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 Depositor, 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. CITY CITY OF PALM DESERT By: Robert A. Spiegel, Mayor DEPOSITOR By: Its: P6401 /0001 /766565.2 4 Contract No.C23200 EXHIBIT "A" Proposed Boundaries of Assessment District No. 2004-2 P6401 /0001 /766565.2 A-1 AVENUE an AREA 1 �— '— AREA 8 AREA 2 1 AREA 3 AREA 4 nA Nr 1 I AREA 4O. *ACREAGE % OF TOTAL 11 AREA 1 70.84 ac. 227. AREA 2 20.87 sc. 6% AREA 3 ---- 25.08 ac. 87. AREA 4 ---- ' 38.82 ac. 127. AREA 5 ---- 118.19 ac. 387E AREA 6 ---- '3.00 ac. 17. AREA 7 ---- 38.40 ac. 127: AREA 8 ---- t42 ac. 17. TOTAL -- - 312.00 ac. ---- 100% * Acreage per Assessor's Map AREA 6 t AREA 7 AREA 8 N I N.T.S. REVISED: 05/04/04 0 W 0 O 0 00 1 0 CQ al Iv Contract No. C23200 EXHIBIT "B" 1. Street Improvements (including signage, striping signals and appurtenances) A.) Monterey Road — east side widening between Gerald Ford and Avenue 35 B) Gerald Ford Drive — north side widening between Monterey and Portola C) Gateway Drive between Gerald Ford and Avenue 25 D) Avenue 35 between Monterey and Dinah Shore E) Street "A" between Gateway and Monterey F) South Side School Street G) East Side School Street H) Dinah Shore extension from Noble Parcel to Portola I) Portola Avenue from Gerald Ford to Dinah Shore 2. Storm Drain Improvements A) Gateway 48" line between A Street and Avenue 35 B) A Street 48" line C) East Side School Street 30" and 48" line D) Avenue 35 54" and 72" line E) Noble Parcel 66", 78" and double 60" lines F) Partial relocation and enlargement of Noble detention basin 3. Water Improvements A) Portola Avenue 18" line B) Dinah Shore 18" line C) Avenue 35 18" line D) Gateway 12" line E) Monterey 18" line F) Gerald Ford 18" line P6401 /0001 /766565.2 B-1 Contract No. C23200 G) A Street 12" line 4. Sanitary Sewer Improvements A) Dinah Shore 8" line B) Noble Parcel 8" and 10" line C) 1-10 Undercrossing D) Gateway 8" line E) East Side School 8" line F) A Street 8" line G) Avenue 35 8" line 5. Dry Utilities A) Portola Avenue 115KV relocation B) Gerald Ford 115KV relocation/undergrounding P6401 /0001 /766565.2 B_2