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HomeMy WebLinkAboutRES 2004-19 - Board TRUCKEE DONNER Public Utility District Resolution No. 2004- 19 RESOLUTION OF THE BOARD OF DIRECTORS OF THE TRUCKEE DONNER PUBLIC UTILITY DISTRICT APPROVING FUNDING AND REIMBURSEMENT AGREEMENT FOR TRUCKEE DONNER PUBLIC UTILITY DISTRICT COMMUNITY FACILITIES DISTRICT NO. 04-1 (GRAY'S CROSSING) WHEREAS, Gray's Crossing, LLC has filed with this Board of Directors a petition requesting the formation of a community facilities district and the issuance of bonds to finance certain infrastructure; and WHEREAS, this Board of Directors is willing to consider the formation of the community facilities district and the issuance of bonds as requested provided that all costs associated therewith are borne by the petitioner; and WHEREAS, there has been presented to this Board of Directors the form of a Funding and Reimbursement Agreement (the "Funding and Reimbursement Agreement") pursuant to which Gray's Crossing, LLC agrees to be responsible for the costs associated with the Truckee Donner Public Utility District's (the "PUD") consideration of and actions associated with the formation of the requested community facilities district and issuance of bonds and pursuant also to which the PUD agrees to reimburse Gray's Crossing, LLC for amounts advanced and/or work in kind provided by it, but only if and to the extent that bond proceeds are available for such purpose; NOW, THEREFORE, THE BOARD OF DIRECTORS OF THE TRUCKEE DONNER PUBLIC UTILITY DISTRICT DOES HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS: Section 1. The Funding and Reimbursement Agreement is hereby approved in the form presented to this Board of Directors; and the General Manager of the PUD is hereby authorized and directed, for and in the name of and on behalf of the PUD to execute and deliver to Gray's Crossing, LLC the Funding and Reimbursement Agreement in substantially the forms hereby approved with such changes thereto as may be approved by the General Manager as being in the best interests of the PUD. 1 Section 2. This Resolution shall take effect immediately upon its adoption. APPROVED and ADOPTED by the Board of Directors of the Truckee Donner Public Utility District on June 16, 2004. AYES: Directors Aguera, Hemig and Van Gundy NOES: Director Sutton ABSTAIN: None RECUSE: Director Maass ABSENT: None TRUCKEE DONNER PUBLIC UTILITY DISTRICT J es A. Maass, President ATTEST: Peter L. Ho&neister, Cfistrict Clerk 2 COMMUNITY FACILITIES DISTRICT FUNDING AND REIMBURSEMENT AGREEMENT (GRAY'S CROSSING) THIS COMMUNITY FACILITIES DISTRICT FUNDING AND REIMBURSEMENT AGREEMENT (GRAY'S CROSSING) (this "Agreement"), dated as of , 2004, is entered into by and between the TRUCKEE DONNER PUBLIC UTILITY DISTRICT, a public agency duly organized and validly existing under the laws of the State of California(the "PUD"), and GRAY'S CROSSING, LLC, a Delaware limited liability company(the "Developer"). RECITALS: A. The Developer has requested that the PUD form a community facilities district to be known as "Truckee Donner Public Utility District Community Facilities District No. 04-1 (Gray's Crossing) (the "CFD")to issue bonds for the purpose of financing various public facilities necessary or desirable in connection with the development of Developer's project known as"Gray's Crossing." B. The PUD and the Developer expect that the PUD would incur expenses in undertaking to study the appropriateness of forming the CFD and issuing bonds, and the Developer is willing to provide funds with which the PUD may pay such expenses. C. Pursuant to California Government Code Section 53314.9,the Board of Directors of the PUD is authorized to accept advances of funds or work-in-kind from any source, including,but not limited to, private persons or private entities, and may provide,by resolution, for the use of those funds or work-in-kind for any authorized purpose, including, but not limited to,paying any costs incurred by the PUD in connection with the formation of a community facilities district. The Board of Directors of the PUD is also authorized to enter into an agreement,by resolution, with the person or entity advancing the funds or work-in-kind to repay all or a portion of the funds advanced or to reimburse the person or entity for the cost or value of the work-in-kind provided that certain conditions are met. The conditions to be satisfied with respect to funds advanced require that(1)the proposal to repay the funds or to pay the cost or value of the work-in-kind must be included in the resolution of intention for the proposed community facilities district and in the resolution of formation for the proposed community facilities district, (2)that any proposed special tax is approved by the qualified electors of the community facilities district pursuant to the Act and that, if a proposed special tax is not approved, any funds advanced which have not been committed for any authorized purpose by the time of the election must be returned to the person or entity advancing funds and(3) any work-in-kind accepted shall have been performed or constructed as if the work had been performed or constructed under the direction and supervision, or under the authority, of the local agency. D. The PUD and the Developer are desirous of entering into this Agreement in accordance with Government Code Section 53314.9 in order to provide a mechanism by which the Developer may advance certain costs and provide work-in-kind related to the PUD's study of the possible formation of the CFD and, if the PUD determines to proceed with the formation of the CFD, to assist the PUD in connection therewith and with the possible issuance of bonds and the CFD, when and if bonds are issued and proceeds are available, can reimburse the Developer for the amounts advanced and/or pay the Developer for the cost or value of the work-in-kind supplied by the Developer. 1 DOC SOC/104193 8v2/22925-0010 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 the CFD and Issuance of Bonds. (a) The PUD will undertake to analyze the appropriateness of forming the CFD and the issuance of bonds by it and either has retained or will retain, at the Developer's expense,the consultants that the PUD determines necessary or convenient to assist it in studying the proposed formation of the CFD and, if the PUD determines to proceed with the formation of the CFD,to assist it in connection therewith and with the possible issuance of bonds, including a special tax consultant, a financial advisor,bond counsel, special counsel, an appraiser and other consultants deemed necessary by the PUD. In addition,the cost of PUD staff time spent in connection with the foregoing (as reasonably determined by the PUD based on(i) its estimate of the total hourly cost to the PUD for each of its employees who spends time in connection therewith times (ii) its estimate of the number of hours so spent by each such employee) shall be at Developer's expense. (b) In order to begin the process of analyzing the formation of the CFD and the issuance of bonds, concurrently with its execution and delivery hereof,the Developer will deliver to the PUD the sum of$20,000. From time to time, the Developer shall make additional advances to the PUD within 15 business days following receipt from the PUD of a request for an additional advance to cover the costs described herein. In the event the Developer does not deliver the requested amount to the PUD within such 15-business day period,the PUD will have no obligation to proceed with any activity relating to the formation of the CFD and/or the issuance of bonds. The Developer shall have the right to notify the PUD at any time, in writing, of its intention to abandon the formation of the CFD or the issuance of bonds. Upon receipt of such notice,the PUD shall instruct its consultants to cease work as soon as practicable. The Developer shall be responsible for all costs and expenses incurred by the PUD or any PUD consultant or advisor relating to the proposed formation of the CFD and/or bond issuance until work with respect to the proposed formation or bond issuance ceases following the receipt of the Developer's notice of abandonment. (c) The PUD will provide written notice to the Developer when the remaining balance of the Developer's advances is reduced to less than $5,000. The PUD will provide to the Developer from time to time a summary of how the advances have been spent,the unexpended balance remaining and the estimated costs to complete the studies contemplated hereby. The amounts advanced by the Developer will be reimbursable to the Developer,without interest, from the proceeds of any bonds issued by the CFD when and if it is formed and its bonds are issued,but only if and to the extent that the PUD determines that the available bond proceeds are sufficient for such purpose. In the event that bonds are not issued in an amount sufficient to provide a source of reimbursement to the Developer,the PUD shall have no liability to the Developer to reimburse it for any of amounts previously advanced by the Developer and expended by the PUD. (d) The Developer agrees that any work-in-kind to be performed by or on behalf of it and to be accepted by the PUD or the CFD shall be performed or constructed as if the work had been performed or constructed under the direction and supervision, or under the authority, of the PUD. In the event it is not so performed or constructed,the Developer shall not be entitled to reimbursement for it. It is the intention of the parties that such work may consist of the preparation 2 DOCSOC/l 041 938v2/22925-0010 of maps, engineering studies, a rate and method of apportionment of special tax and certain documents relating to formation of the CFD as determined by the PUD. 3. Reimbursement Procedure. In accordance with Government Code Section 53314.9, the parties agree that, if the qualified electors of the proposed CFD do not approve the proposed special tax,the PUD shall return any funds which have been advanced by the Developer pursuant to this Agreement and which have not been committed for any authorized purpose by the time of the election. Such returned funds shall be without interest. 4. Abandonment of Proposed CFD. The Developer understands that a decision to commence formation of the CFD shall be in the sole discretion of the PUD. No provision of this Agreement shall be construed as a promise, warranty or agreement by the PUD to form the CFD or to issue bonds. The PUD shall have no liability to Developer for a decision not to form the CFD or issue bonds. 5. Indemnification and Hold Harmless. The Developer hereby assumes the defense of, and indemnifies and saves harmless,the PUD and each of its officers, directors and employees, 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 of the Developer or any of the Developer's officers, employees, contractors and agents in connection with the proposed formation of the CFD or any work-in-kind provided by or on behalf of the Developer or its consultants, except for any action, damages, claims, losses or expenses arising out of the sole negligence or willful misconduct of the PUD, its officers, directors, employees or agents. 6. Notices. Any notice to be provided pursuant to this Agreement shall be delivered to the following addresses: Developer: Gray's Crossing, LLC c/o East West Partners P.O. Box 2537 Truckee, California 96160 Attention: Rick McConn PUD: Truckee Donner Public Utility District 11570 Donner Pass Road P. O. Box 309 Truckee, California 96160 Attention: General Manager Each party may change its address for delivery of notice by delivering written notice of such change of address to the other party. 7. Assip-nment. The Developer may not assign its interest in this Agreement without the prior written consent of the PUD, which consent shall not be unreasonably withheld. 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. 3 DOCSOC/1041938v2/22925-0010 9. Entire Agreement. This Agreement contains the entire agreement between the parties with respect to the matters provided for herein, and it supercedes and replaces entirely the Funding and Reimbursement Agreement, dated as of August 6, 2003, by and between the parties hereto. 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 PUD (and its officers, directors, employees and agents providing services under this Agreement) and the Developer, 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 the first anniversary of the date of this Agreement unless expressly amended by the parties;provided, however,that the Developer's obligations under Section 5 shall survive the termination and the PUD's obligation to provide reimbursement in accordance with Section 3 for expenses incurred prior to the termination date shall also survive termination. IN WITNESS WHEREOF,the parties have executed this Agreement on the day and year first above written. TRUCKEE DONNER PUBLIC UTILITY DISTRICT By: Peter Holzmeister, General Manager GRAY'S CROSSING, LLC By: EAST WEST RESORT DEVELOPMENT V, L.P., L.L.P., its Manager By: HF HOLDING CORP., its General Partner By: Blake L. Riva,Vice President 4 DOCSOC/104193 8v2/22925-0010