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HomeMy WebLinkAboutCIM/Huntington, LLC - aka CIM Group, LLC - 2004-09-071-1 0 CITY OF HUNTINGTON BEACH 2000 MAIN STREET OFFICE OF THE CITY CLERK JOAN L. FLYNN CITY CLERK CALIFORNIA 92648 LETTER OF TRANSMITTAL OF ITEM APPROVED BY THE CITY COUNCIL/ REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH DATE: /9/0� TO: 01Mlj41}(o-/Z4 ATTENTION: 4b DSO N �� / tea, ?' � G.L y4j 00z Z"Z). DEPARTMENT: stt t LLV 1'j00/) C-q- 900j d' REGARDING: �� F6 /L) City, state, zip See Attached Action Agenda Item Date of Approval6/ Enclosed For Your Records Is An Executed Copy Of The Above Referenced Agenda Item. Remarks: City Clerk Attachments: Action Agenda PageAgreement J<_ Bonds Insurance RCA Deed ' Other CC: (oQ �c�,���-�J ✓ ✓ Name artment RCA Agreement fasurance Other Name Department RCA Agreement huarance Other Name Department RCA Agreement insurance Other Name Name Department Department RCA Agreement Insurance Other RCA Insurance g1fcilowup/letters/coverltndoc (Telephone: 714-536-5227 ) Council/Agency Meeting Held: Deferred/Continued to: Approved ❑ Conditionally Approved ❑ Denied City er 's Sp natur Council Meeting Date: 9/7/2004 -7 Department ID tuber: ED 04-27 CITY OF HUNTINGTON BEACH REQUEST FOR CITY COUNCIL ACTION. Y+ SUBMITTED TO: HONORABLE MAYOR CITY COUNCIL MEMBERS SUBMITTED BY: PENELOPE CULBRETH RAFT, 4D INIS PREPARED BY: DAVID C. BIGGS, DIRECTOR OF ECONOMIC DEVELOPMENT JENNIFER MCGRATITY ATTORNEY SUBJECT: Approval of a Deposit Agreement Between the City of Huntington Beach and CIM/Huntington, LLC for Legal Expenses Incurred in the Formation of a Community Facilities District for The Strand Statement of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachment(s) Statement of Issue: The Economic Development Department and the City Attorney's Office of the City of Huntington Beach are assisting with the formation of a Community Facilities District (CFD) for The Strand. CIM/Huntington, LLC has agreed to advance the necessary funds to pay for various professional services contracts to facilitate the formation of the CFD. Approving a deposit agreement for Legal Services will allow the City to deposit these funds and make payments to Bond Counsel for legal services. Funding Source: General Fund unappropriated fund balance. An equal amount of revenue will be deposited, into the General Fund. In essence there will not be an impact on the General Fund. Recommended Action: 1. Approve the Deposit Agreement between the City of Huntington Beach and CIM/Huntington, LLC for legal services expenses relating to the formation of the Community Facilities District for The Strand project and authorize the Mayor and City Clerk to sign the agreement. 2. Authorize the acceptance of $10,000 deposit funds from CIM/Huntington, LLC into revenue account 10000100.48410 and appropriate $10,000 from the Economic Development Business Development Fund account 10080101.69325 for expenses associated with Professional Services Contracts pertaining to the deposit agreement, and authorize the reimbursement to CIM/Huntington, LLC any unspent deposit funds after the termination of the consultants' contracts. f- 5 0 REQUEST FOR ACTION i MEETING DATE: DEPARTMENT ID NUMBER: 3. Authorize the Director of Economic Development to enter into the Professional Services Contracts funded through the Deposit Agreement with CIM/Huntington, LLC. 1. Alternative Action(s): Do not approve the Reimbursement Agreement. Analysis: The Economic Development Department and the City Attorney's Office of the City of Huntington Beach is assisting CIM Group in creating a Community Facilities District (CFD) for The Strand. The proposed CFD is to fund public improvements through a tax-exempt bond issue. In order to create a CFD, Bond Counsel to provide legal services in the formation of the CFD is needed. Although this service is an eligible cost payable from bond proceeds, the formation of the CFD is performed prior to the issuance of the bond. CIM/Huntington, LLC has agreed to advance the necessary funds to pay for this service. If the bond issue is sold and closed, then CIM/Huntington, LLC will be reimbursed from the bond proceeds. If the bond is not issued, then CIM/Huntington, LLC will still be responsible for the legal expenses related to the CFD formation. There will be no cost to the City. Approving a reimbursement agreement will allow the Economic Development Department and the to deposit these funds and make the payments for legal services. Environmental Status: Not Applicable Attachment(s): 1. Deposit Agreement between the Redevelopment Agency of the City of Huntington Beach and CIM/Huntington, LLC 2. Legal Description of Proposed CFD Boundaries 3. Fiscal Impact Statement G:\Gus\REDEV\CIM104-105\CFD\RCALega1ReibAg.doc -2- 81271200410:46 AM • 0 Deposit Agreement Attachment No. 1 0 DEPOSIT AGREEMENT BY AND BETWEEN THE CITY OF HUNTINGTON BEACH AND CIM/HUNTINGTON, LLC FOR BOND COUNSEL AND OTHER SERVICES THIS DEPOSIT AGREEMENT (the "Agreement") is made and entered into by and between the CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California, hereinafter referred to as the "City," and CIM/HUNTINGTON, LLC, a California limited liability company, hereinafter referred to as "Developer." RECITALS WHEREAS, Developer is owner of the property known as The Strand in Huntington Beach, California, and has requested that City and/or the Redevelopment Agency create a Community Facilities District (The Strand) to finance the public improvements, hereinafter referred to as "District;" and City has retained bond counsel to provide legal services relative to the formation of the District and has entered into an Agreement for Legal Services with Best Best & Krieger LLP in September 2002 ("Agreement for Legal Services") for this purpose; and Pursuant to the Agreement for Legal Services, fees for bond counsel services are contingent upon the issuance of District bonds and, for the most part, will be paid in accordance with a schedule determined by the amount of the bond issuance. Fees and costs of fees and costs of preparing the first two drafts of a funding and acquisition agreement, operating agreement and preparation and review of any other ancillary agreement, inc-hiding a reciprocal easement agreement, will be included in the fee schedule set firth in Section 2(A) of the Original Agreement (the "Fee Schedule"). However, that negotiation and drafting of additional drafts will be billed at an hourly rate of $250 per hour and will be fees charged in addition to the Fee Schedule. The fees billed will be payable solely from a deposit of the developer of the project, and may be reimbursed to the developer from the proceeds of the bonds at closing; and Developer and City wish to provide for the deposit by the Developer to provide for the payment of the above -referenced hourly fee payable to bond counsel, if any, in connection with the formation of the District, g/mulvihill/misc/deposit agreement/7/19/04 I NOW, THEREFORE, the parties hereby agree as follows: AGREEMENT 1. BOND COUNSEL DEPOSIT AND DEVELOPER CONTRIBUTION Within thirty days of execution of this Agreement, Developer will deposit with the City for the benefit of the District the amount of Ten Thousand Dollars ($10,000) (the "Bond Counsel Deposit"). If additional funds are needed for costs relating to the hourly fee for bond counsel services, the City shall notify the Developer either by telephone or in writing prior to incurring such costs. Upon Developer's acknowledgment of such notice, the City, on behalf of the District, shall make written demand upon Developer for such funds, and Developer shall comply with each demand within fifteen (15) business days thereafter. The Bond Counsel Deposit, together with any subsequent deposits made by Developer pursuant to the terms of this Agreement (collectively, the "Deposits"), are to be used to pay for the hourly fee of bond counsel in connection with the issuance of the Bonds that becomes due pursuant to the Agreement for Legal Services. The City may draw upon the Deposits from time to time to pay the Bond Counsel fee. If Developer fails to make any deposit of funds within the time required herein, the City on behalf of the District may suspend all proceedings until Developer advances the amounts demanded. The City shall provide Developer with a written summary of expenditures made from the Deposits, and the unexpended balance thereof, within ten (10) business days of receipt by the City of a written request therefor submitted by the Developer, provided that the City shall not be required to provide a summary of expenditures more frequently than one time during each calendar month. The cost of providing any such summary shall be charged to the Deposits. If the Bonds are issued by the District, the City shall reimburse the Developer, without interest, for the portion of the Deposits that have been expended or encumbered, said reimbursement to be made within ten (10) business days after the issuance of such Bonds, solely from the proceeds of such Bonds and only to the extent otherwise permitted under the Act. The City shall, within ten (10) business days after the issuance of such Bonds, return the then unexpended and unencumbered portion of the Deposits to the Developer, without interest. g/mulvihill/misc/deposit agreement/7/19/04 2 C� 2. TERMINATION City shall use its best efforts to form the District and issue the Bonds. If for any reason including, but not limited to, (i) failure of the qualified electors within the District to approve the proposed special tax to be levied thereon, (ii) court action or proceeding challenging the City's compliance with the California Environmental Quality Act, (iii) a regulation, decision or order of a State or federal regulatory agency, (iv) a voter imposed moratorium or restriction on development or the issuance of building permits which affects development of the Property, or (v) the insolvency or bankruptcy of Developer, or any other such matter, the City is unable to complete the formation of proceedings of the District and issue and sell the Bonds then City shall, within ten (10) business days after action by the City or District to terminate such proceedings, return any unexpended portion of the Deposits and any subsequent deposits to Developer. The City shall not be obligated to return any portion of the Deposits which have been spent by the City for the purposes set forth in Section Thereof or as required by the Agreement for Legal Services. 3. ASSIGNMENT This Agreement or any right or duty hereunder may not be assigned by either the City or the Developer; provided, however, that Developer shall be entitled to assign its rights and duties under this Agreement in connection with any sale, conveyance or transfer of its interest in the Project. 4. MUTUAL ASSISTANCE AND COOPERATION The City and Developer will assist one another mutually in the formation of the District, the formulation of special taxes to be levied within the District and the issuance of Bonds. Both parties will mutually assist one another in otherwise undertaking and furthering the goals and objectives set forth in this Agreement. 5. NOTICE Any notice, payment or instrument required or permitted by this Agreement to be given or delivered to either party shall be deemed to have been received when (a) personally delivered, (b) if given by electronic communication, whether by telex, telegram or telecopier upon the sender's receipt of an g/mulvihill/misc/deposit agreement/7/19/04 3 • 0 appropriate answer back or other written acknowledgment, of successful transmission, (c) if given by registered or certified mail, return receipt requested, deposited with the United States mail postage prepaid, 72 hours after such notice is deposited with the United States mail, (d) if given by overnight courier, with courier charges prepaid, 24 hours after delivery to said overnight courier, or (e) if given by any other means, upon delivery at the address specified in this Section addressed as follows: Developer: CIM/HUNTINGTON, LLC Attn: Mary Anderson 6922 Hollywood Boulevard, 9�" Floor Hollywood, CA 90028 District: City of Huntington Beach Attn: City Administrator 2000 Main Street Huntington Beach, CA 92648 Each party can change its address for delivery of notice by delivering written notice of such change of address to the other party within twenty (20) days of such change. 6. ATTORNEYS' FEES In the event of the bringing of any action or suit by either party against the other arising out of this Agreement, the party in whose favor final judgment shall be entered shall be entitled to recover from the other party all costs and expenses of suit, including reasonable attorneys' fees. 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 reasonably possible. 8. BINDING ON SUCCESSORS AND ASSIGNS This Agreement shall be binding upon and inure to the benefit of the heirs, successors -in -interest and assigns of the parties hereto. 9. AMENDMENTS This Agreement may be amended or modified only in writing signed by both parties. g/mulvihill/misc/deposit agreement/7/19/04 4 10. 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. 11. USAGE OF WORDS As used herein, the singular of any word includes the plural, and terms in the masculine gender shall include the feminine. 12. NO THIRD PARTY BENEFICIARIES Except as may be specifically provided herein to the contrary, no third party shall be the express or implied beneficiary of this Agreement or any of its provisions, no such third party may bring action at law or in equity with respect thereto. 13. VENUE AND FORM Any action at law or in equity arising under this Agreement brought by any party hereto for the purpose of enforcing, construing or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of Los Angeles, State of California, and the parties waive all provisions of law providing for the filing, removal or change of venue to any other Court. 14. COUNTERPARTS This Agreement may be executed in counterparts, all of which shall be deemed an original. 15. ENTIRE AGREEMENT This Agreement contains the entire agreement between the parties with respect to the matters provided for herein. There are no oral or written representations, understandings, undertakings or agreements which are not expressly referred to or contained herein, and any such representations, g/mulvihill/miscideposit agreement/7/19/04 5 understandings, undertakings or agreements are superseded by this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Deposit Agreement to be executed by and through their authorized officers on CIMMUNTING N LL By. v print name ITS: (circle one) Chairman/President/Vice President By: print name I ircle one) Secreta hief Financi Offic Asst. Secretary - Treasurer REVIEWED AND APPROVED: f C• Administrator 4 — CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California May(Tr City Clerk 9/q jo APPROVED AS TO FORM: 44tAl%ity +Attonm'ey INITIATED AND APPROVED: &�h� Director of conomic Development g/mulvihill/misc/deposit agreement/7/19/04 6 Legal Description of Proposed CFD Boundaries Attachment No. 2 0 0 PSOMAS 1 LEGAL DESCRIPTION 2 Proposed Boundaries of City of Huntington Beach 3 Community Facilities District No. 2004-1 (The Strand) 4 County of Orange, State of California 5 6 In the City of Huntington Beach, County of Orange, State of California, being Lots 10, '7 12, 14, 16, 18, 20, 22, 24, 26, 28, a portion of'Lot 9 and a portion of the alleys adjacent to 8 said Lots, in Block 104; Lots 1 through 21, inclusive, 23, 25, 27, and a portion of the 9 alleys adjacent to said Lots, in Block 105; together with that portion of Fifth Street 10 adjacent to said Blocks 104 and 105, all as shown on Map of Huntington Beach filed in 11 Book 3, Page 36 of Miscellaneous Maps, Records of'said County described as follows: 12 13 Beginning at most easterly corner of'said Lot 28; thence South 41 °3 7'44" West 14 225.10 feet along the northwesterly line of'the Alley, 15 feet wide, within said Block 104, 15 to the most southerly corner of'Lot 12 of'said Block 104; thence North 48°22'14" West 16 67..71 feet along the southwesterly line of'said Lot 12 to the northeasterly prolongation of 17 the northwesterly line of the Deed recorded October 10, 1990 as Instrument 18 No.. 90-538988, of'Official Records of'said County; thence South 41°37'10" West 19 125.05 feet along said prolongation and said northwesterly line to the northeasterly line 20 of'Pacifrc Coast Highway (Ocean Avenue), 100..00 feet wide, per the Map of Huntington 21 Beach, fled in Book 3, Page 36 of'Miscellaneous Maps, Records of'said County; thence 22 North 48°2F52" West 359„91 feet along said northeasterly line to the southeasterly line 23 of Sixth Street, 75 feet wide as shown on said Map of Huntington Beach; thence North 24 41 °37' 11" East 250.. 0.3 feet along said southeasterly line to the most northerly corner of 25 Lot 20 of'said Block 105; thence 26 South 48022'50" East 125..07 feet along the northeasterly line of'said Lot 20 and the 27 southeasterly prolongation thereof to the centerline of' the Alley, 15 feet wide, within said 28 Block 105; thence North 41'37' 11" East 100.01 feet along said centerline to the 29 southwesterly line of Walnut Avenue, 60 feet wide as shown on said Map of Huntington 30 Beach; thence South 48°22'50" East 302.58 feet along said southwesterly line to the 31 POINT OF BEGINNING. M:12H11N011300\survey\1ega1s\Tract No_16406.Rev doc Page 1 of'2 8/3I2064 4:48 PM 0 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 PS OMAS Containing 2.956 acres, more or less. This xeal property description has been prepared by me or under my direction, in conforplance with the Professional Land Surveyors' Act, Kari Launen, PLS 567 PSOMAS 3..F'3ili`�e.: N CK�. "/na/o a LS 6679 M:\2HUN011300\survey\legals\i'ract _No_16406.Rev.doc Page 2 of'2 8/3/2004 4:48 PM Date BOUNDARY MAP g/mulvihill/misc/deposit agreement/7/19/04 m PROPOSED BOUNDARIES OF CITY OF HUNTINGTON BEACH COMMUNITY FACILITIES DISTRICT No. 2004-1 (THE STRAND) COUNTY OF ORANGE STATE OF CALIFORNIA �I ll WALNUT nsD � o.aD• � o.00' za ( 3.5 ' _30,00, -- 'A-- I I W � W Ld S48'22'S0zz"E 125.07 I I W' H to w � I I W N = x' I 1 (� 7.50 jI ^YLilL'}i 4 zs0 I zw I 154.78 _ III I III 65' I I 30.00' 000'DD• r a.Otl vICIf1C CONT NNDx'Mr DEDGIED I FILED IN THE OFFICE OF THE CITY CLERK OF THE CITY OF HUNTINGTON BEACH THIS DAY OF , 2004. CONNIE BROCKWAY, THE CITY CLERK OF THE CITY OF HUNTINGTON BEACH. I HEREBY CERTIFY THAT THE WITHIN MAP SHOWING THE BOUNDARIES OF THE CITY OF HUNTINGTON BEACH COMMUNITY FACILITIES DISTRICT NO. 20W (THE STRAND) COUNTY OF ORANGE, STATE OF CALIFORNIA, WAS APPROVED BY THE CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH AT A REGULAR MEETING THEREOF HELD ON THE _DAY OF 2004 BY ITS RESOLUTION NO. CONNIE BROCKWAY, THE CITY CLERK OF THE CITY OF HUNTINGTON BEACH ACCEPTED AND FILED AT THE REQUEST OF THE CITY OF HUNTINGTON BEACH DATE TIME FEE 9 INSTRUMENT * BOOK PAGE FILED THIS DAY OF 2004, AT THE HOUR OF_ O'CLOCK IN BOOK PAGE OF MAPS OF ASSESSMENT AND COMMUNITY FACILITIES DISTRICTS, IN THE OFFICE OF THE COUNTY RECORDER OF THE COUNTY OF ORANGE, STATE OF CALIFORNIA. TOM DALY COUNTY CLERK/RECORDER DEPUTY AVENUE 302.58' (_ R I_ BLOCK 104 3. PNf 38MIA) ao _ -j04 I �5Acvrl I L. I W I I W c �rorl F- I I J I N ' LLL— I -- I I PARCEL MAP NO. 91-235 11 NSiPALS NO. 93-/037M L PIAD9.I I a L�--- 0' 60' 120' 240' GRAPHIC SCALE CFD BOUNDARY BASIS OF BEARING: BEARINGS HEREON ARE BASED ON THE BEARINGS BETWEEN O.C.S. HORIZONTAL CONTROL STATION GPS 5019 AND STATION GPS 5034R1 BEING NORTH 33°3325- WEST PER RECORDS ON FILE IN THE OFFICE OF THE ORANGE COUNTY SURVEYOR. SITE SHEET 1 OF 1 9 0 Fiscal Impact Statement Attachment No. 3 0 0 �CITY OF HUNTINGTON BEACH INTERDEPARTMENTAL COMMUNICATION To: Penelope Culbreth-Graft, City Administrator From: Clay Martin, Director of Administrative Services Subject: FIS 2004 — 33 Approval of a Deposit Agreement Between the City of Huntington Beach and CIM/Huntington, LLC for Legal Expenses Incurred in the Formation of a Community Facilities District for The Strand Date: August 18, 2004 As required by Resolution 4832, this Fiscal Impact Statement has been prepared for "Approval of a Deposit Agreement Between the City of Huntington Beach and CIM/Huntington, LLC for Legal Expenses Incurred in the Formation of a Community Facilities District for The Strand" If the City Council approves this action (total appropriation $10,000), there will be no effect on the fund balance of the Community Facilities District for the Strand, since all new expenditures are offset by revenuetyelj�ited in the original budget. Director ofAdministrative Services DATE:07/23/04 CK#:5810 TOTAL:$10,000.00** BANK:00000728 - Fund Disbursement Account PAYEE:CITY OF HUNTINGTON BEACH(vz3chbl) Prop/Job/Categ/Acct Invoice Description Amount 3031000N19210-10 072304 07/23/04 Deposit -Bond Legal Fee 10,000.00 10,000.00 RCA ROUTING SHIET INITIATING DEPARTMENT: Economic Development SUBJECT: Approval of a Deposit Agreement Between the City of Huntington Beach and CIMIHuntington, LLC for Legal Expenses the Formation of a CFD for The Strand COUNCIL MEETING DATE: I September 7, 2004 RCA ATTACHMENTS STATUS Ordinance (w/exhibits & legislative draft if applicable) Attached ❑ Not Ap licable Resolution (w/exhibits & legislative draft if applicable) Attached ❑ Not Applicable Tract Map, Location Map and/or other Exhibits Attached ❑ Not Applicable Contract/Agreement (w/exhibits if applicable) Attached Not Applicable ❑ (Signed in full by the City Attorney) Subleases, Third Party Agreements, etc. Attached Not Applicable ❑ Approved as to form by City Attorney) Certificates of Insurance (Approved b the City Attorne ( Pp Y Y Y) Attached Not Applicable ❑ Fiscal Impact Statement (Unbudget, over $5,000) Attached Not Applicable ❑ Bonds (If applicable) Attached Not Applicable ❑ Staff Re ort If applicable p ( pp ) Attached Not Applicable � Commission, Board or Committee Re ort applicableIf a p ( pp ) Attached Not Applicable El Findings/Conditions for Approval and/or Denial Attached Not Applicable ❑ EXPLANATION FOR MISSING ATTACHMENTS REVIEWED RETURNED FORWARDED Administrative Staff Assistant City Administrator Initial City Administrator Initial ( ) ( ) —City Clerk 'EXPLANATION FOR RETURN OF ITEM: RCA Author: Gus Duran X1529 r. F1in CITY OF HUNTINGTON BEACH 4 INTER -DEPARTMENT COMMUNICATION HUNTINGTON BEACH Connie Brockway, City Clerk Office of the City Clerk Liz Ehring, Deputy City Clerk II To:(% Date: F o-,1�91ZO Meeting Date: y 7 d Agenda Item: Pro11osed City Council Agenda Items: The City Clerk's Office/City Administrator's Office must return your agenda item due to the following requirements that have not been met. When your Agenda Item is ready to resubmit, please return to: , Administration I. Signature(s) Needed A On RCA B On Agreement C Other 2. Attachments A Missing B Not identified C Other 3. Exhibits Ul A Missing B Not identified C Other l,,a 4--- 4. Insur ce Certificate (Proof Of Insurance) 9i»..r' A Not attached B Not approved by City Attorney's Office C Signed form notifying City Clerk that department will be responsible for obtaining insurance certificate on this item. (See form attached) 5. Wording On Request For Council Action (RCA) Unclear A Recommended Action on RCA not complete B Clarification needed on RCA C Other 6. City Attorney Approval Required 7. Agreement Needs To Be Changed A Page No. �e 8. Other W G:agenda/misdmWorm ✓ U P V v