HomeMy WebLinkAboutPardee & EVMWD Joint Community Facilities Agreement CFD 2003-2 Canyon Hills 01-13-2004 JOINT COMMUNITY FACILITIES AGREEMENT
by and among
CITY OF LAKE ELSINORE
AND
ELSINORE VALLEY MUNICIPAL WATER DISTRICT
AND
PARDEE HOMES
RELATING TO
COMMUNITY FACILITIES DISTRICT NO. 2003-2 (CANYON HILLS)
OF THE CITY OF LAKE ELSINORE
Dated as of January 13, 2004
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JOINT COMMUNITY FACILITIES AGREEMENT
BY AND AMONG
CITY OF LAKE ELSINORE
AND
ELSINORE VALLEY MUNICIPAL WATER DISTRICT
AND
PARDEE HOMES
(Community Facilities District No. 2003-2 (Canyon Hills)
of the City of Lake Elsinore)
THIS JOINT COMMUNITY FACILITIES AGREEMENT ("Agreement") is made and
entered into as of the 131h day of January, 2004, by and among the ELSINORE VALLEY
MUNICIPAL WATER DISTRICT, County of Riverside, State of California, a municipal water
district ("EVMWD") organized and operating pursuant to the Municipal Water District Law of
1911 as set forth in the California Water Code, the CITY OF LAKE ELSINORE, a municipal
corporation ("City"), and PARDEE HOMES, a California corporation ("Property Owner").
RECITALS:
A. Property Owner is the owner of certain real property located within the
boundaries of the EVMWD and the City and depicted in Exhibit "A" hereto (the "Property").
The Property consists of Phases 2 through 5 of the Canyon Hills master planned community.
B. Property Owner intends to develop the Property for residential purposes and has
obtained or intends to obtain the necessary development approvals to construct approximately
3,208 dwelling units on the Property, as such development may be modified from time to time
(the "Project").
C. The Project will require the payment, pursuant to the rules and regulations of
EVMWD, as amended from time to time ("EVMWD Rules and Regulations"), of certain
EVMWD Charges (defined below). The EVMWD Charges may be paid directly to EVMWD, or
paid and then reimbursed to the paying party, from time to time out of Bond Proceeds (defined
below) pursuant to this Agreement.
D. The Project will also benefit, in whole or in part, from the construction of certain
Acquisition Facilities (defined below and described on Exhibit "B" attached hereto). EVMWD
and the Property Owner agree that any Acquisition Facilities to be constructed by Property
Owner shall be eligible for acquisition by EVMWD and the costs thereof shall be eligible for
reimbursement out of Bond Proceeds pursuant to this Agreement.
E. In conjunction with the recording of the final subdivision map(s) for the Project,
the issuance of building permits for the construction of homes within the Project and/or receipt
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of water meters for such homes, it may be necessary for Property Owner, or its successors or
assigns, to advance EVMWD Charges to EVMWD (the "Advances") before any Bond Proceeds
are available to pay for EVMWD Charges. In such case, Property Owner shall be entitled to (i)
reimbursement of such Advances and (ii) credit for payments made to the EVMWD from Bond
Proceeds for EVMWD Charges which would otherwise be due to the EVMWD in conjunction
with the Project, all as further described herein.
F. The Project will also require certain public improvements to be owned, operated
or maintained by the City (the "City Improvements") which will also be eligible for financing
through the CFD.
G. Pursuant to the request of the Property Owner, the City Council of the City
intends to form the CFD pursuant to the Act (defined below) to provide financing of the
EVMWD Charges, Acquisition Facilities and City Improvements.
H. City and EVMWD are authorized by Section 53313.5 of the Act to pay for or
finance, by means of the CFD, the EVMWD Charges, Acquisition Facilities and City
Improvements. This Agreement constitutes a "joint community facilities agreement" ("JCFA")
within the meaning of Section 53316.2 of the Act by and among EVMWD, the City and Property
Owner, pursuant to which the CFD, when formed, will be authorized to finance the City
Improvements and EVMWD Charges and to finance the construction and acquisition of
Acquisition Facilities. As provided by Section 53316.6 of the Act, responsibility for providing
and operating the Acquisition Facilities is delegated to EVMWD to the extent set forth herein
and responsibility for constructing, providing and operating the City Improvements is delegated
to the City.
I. The provision of the City Improvements, Acquisition Facilities and EVMWD
Char-es is necessitated by the Project, and the parties hereto find and determine that the residents
of the City and EVMWD will be benefited by the payment of EVMWD Charges and .
construction and acquisition of the Acquisition Facilities and the City Improvements and that this
Agreement is beneficial to the interests of such residents.
L
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ARTICLE I
GENERAL PROVISIONS
Section 1.1 Recitals.
The above recitals are true and correct and are hereby incorporated by this reference.
Section 1.2 Definitions.
Unless the context clearly otherwise requires, the terms defined in this Section shall, for
all purposes of this Agreement, have the meanings herein specified.
(a) "Act" means the Mello-Roos Community Facilities Act of 1982, as
amended, commencing with California Government Code Section 53311, et seq.
(b) "Acquisition Facility or Facilities" means those sewer and water facilities
listed on Exhibit "B" hereto, which are eligible to be constructed by the Property Owner,
acquired by EVMWD and paid for with Bond Proceeds.
(c) "Acquisition Price" means the amount to be paid out of Bond Proceeds for
an Acquisition Facility.
(d) "Actual Costs" with respect to an Acquisition Facility includes: (1)the
actual hard construction costs including labor, materials and equipment costs, (ii) the costs
incurred in design, engineering and preparation of plans (iii) the fees paid to consultants and
government agencies in connection with and for obtaining permits, licenses or other required
governmental approvals, (iv) a construction management fee of 5% of the costs described in
clause (1) above, (v) professional costs such as engineering, legal, accounting, inspection
construction staking, materials testing and similar professional services, (vi) costs of payment,
performance of maintenance bonds, and insurance costs (including the costs of any title
insurance) and (vii) the value of any real property or interests therein that (1) are required for the
construction of the Acquisition Facility such as temporary construction easements, haul roads,
etc. and (2) are required to be conveyed with such Acquisition Facility in an amount equal to the
fair market value of such real property or interests therein.
(e) "Advances" means an amount paid by Property Owner for EVMWD
Charges prior to the issuance and sale of Bonds and which are eligible for reimbursement from
Bond Proceeds.
(f) "Agreement" means this Joint Communities Facilities Agreement.
(g) "Bond Proceeds" or "Proceeds of the Bonds" shall mean those net funds
generated by the sale of the Bonds.
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(h) "Bond Resolution" means that Resolution, Resolution Supplement, Fiscal
Agent Agreement, Indenture of Trust or other equivalent document(s) providing for the issuance
of the Bonds.
(1) "Bonds" shall mean those bonds, or other securities, issued by, or on
behalf of the CFD, as authorized by the qualified electors within the CFD.
0) "CFD" means Community Facilities District No. 2003-2 (Canyon Hills) of
the City of Lake Elsinore.
(k) "Engineer" means the engineering firm or in-house personnel used by
EVMWD to determine the value of an Acquisition Facility to be acquired with Bond Proceeds.
(1) "EVMWD Charges" means water connection fees, sewer connection fees,
annexation fees, sewer treatment capacity charges and all components thereof of the EVMWD
imposed upon the Project to pay for the provision of water and sewer services to and the
construction of EVMWD water and sewer facilities required to serve the Project.
(m) "EVMWD Facilities Fund" means the fund, account or sub-account of the
CFD (regardless of its designation within the Bond Resolution) into which a portion of the Bond
Proceeds may be deposited in accordance with the Bond Resolution and Funding Agreement to
finance the construction and acquisition of the Acquisition Facilities and to pay EVMWD
Charges.
(n) "EVMWD Representative" means the EVMWD Chief Engineer or his
Designee-
(o) "Facilities" means the City Facilities, Acquisition Facilities and EVN WD
Charges.
(p) "Field Engineer' shall have the meaning ascribed to the term in Section 3.
(q) "Funding Agreement" shall mean the Funding, Construction and
Acquisition Agreement between City and Property Owner relating to the CFD, as it may be
amended from time to time.
(r) "Party" or "Parties" shall mean any one or all of the parties to this
Agreement, including the CFD which, upon its formation, shall be considered to be a party to
this Agreement and bound by its provisions.
(s) "Plans and Specifications" shall mean the plans and specifications for the
design and construction of an Acquisition Facility as approved by EVMWD, which approval
shall not be unreasonably withheld.
(t) "Rate and Method" means the Rate and Method of Apportionment of the
Special Tax authorizing the levy and collection of special taxes pursuant to proceedings
undertaken for the formation of the CFD pursuant to the Act.
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(u) "State" means the State of California.
(v) "Special Taxes" means the special taxes authorized to be levied and
collected pursuant to the Rate and Method.
(w) "Substantially Complete" or "Substantial Completion" with respect to an
Acquisition Facility means that such Acquisition Facility is substantially complete in accordance
with its Plans and Specifications and is available for use by the public for its intended purpose,
notwithstanding any final "punch list" items still required to be completed, unless such items are
required for the safe operation of such Acquisition Facility, and shall be based upon approval of
EVMWD's inspectors,which shall not be unreasonably withheld.
ARTICLE II
FORMATION OF CFD AND ISSUANCE OF BONDS
Section 2.1 Proposed Formation of the CFD.
The City, pursuant to the written request of the Property Owner, has initiated proceedings
pursuant to the Act for the formation of the CFD, the authorization of the Special Taxes within
the CFD and the authorization of Bonds on behalf of the CFD. Nothing contained herein shall be
deemed to limit the discretion of the City in that regard and the City shall have no liability to
EVMWD if the CFD is not formed or if the Special Taxes and Bonds are not authorized by the
qualified electors within the CFD.
Section 2.2 Issuance and Sale of Bonds.
In the event the CFD is formed and the Special Taxes and Bonds are authorized, the City
Council of the City, acting as the legislative body of the CFD, may, in its sole discretion, in
accordance with its adopted policies and the Funding Agreement adopt the Bond Resolution and
issue the Bonds to finance the Facilities.
Section 2.3 Bond Proceeds.
Upon the issuance and sale of each series of Bonds, and receipt of the Bond Proceeds, the
City shall determine the amount of the Bond Proceeds allocable to finance construction and
acquisition of Acquisition Facilities and to pay EVMWD Charges in accordance with the
Funding Agreement, and shall deposit such amount in the EVMWD Facilities Fund.
In conjunction with the recording of the final subdivision maps for the Property, the
issuance of building permits for the construction of homes within the Property and/or receipt of
water meters for such homes, it may be necessary for Property Owner, or its successors of
assigns, to make Advances before Bonds are issued_ Upon the issuance and sale of the Bonds,
Property Owner may execute and submit a payment request to the CFD in the format and
meeting the requirements as set forth in the Funding Agreement requesting disbursement of an
amount equal to all Advances from the EVMWD Facilities Fund. The sole source of funds from
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which Property Owner will be entitled to receive reimbursement of the Advances shall be the
Bond Proceeds to be deposited in the EVMWD Facilities Fund.
`- From time to time following the issuance and sale of the Bonds, Property Owner shall
authorize EVMWD in writing to request a disbursement from the EVMWD Facilities Fund to
fund EVMWD Charges. Upon such notice and EVMWD's receipt of such disbursement,
Property Owner shall be deemed to have satisfied the applicable EVMWD Charges with respect
to the number of dwelling units or lots for which the EVMWD Charges would otherwise have
been required in an amount equal to such disbursement.
Section 2.4 Responsibility for EVMWD Charges and Acquisition Facilities
(a) The Parties hereto acknowledge and agree that the final responsibility for the
payment of the EVMWD Charges and the design, construction and dedication of Acquisition
Facilities to be constructed by Property Owner lies with the Property Owner.
(b) If the amounts derived from Bond Proceeds deposited in the EVIVIWD Facilities
Fund, including investment earnings thereon, if any, are not sufficient to fund the total cost of the
EVMWD Charges and Acquisition Facilities to be constructed by Property Owner, the parties
hereto agree that all responsibility and liability for the amount of such shortfall shall be and
remain with the Property Owner and shall not lie with the City, CFD or EVMWD.
(c) In addition to financing the EVNPvVD Charges described above, the Parties
acknowledge that EVMWD may require the Property Owner, pursuant to the EVMWD Rules
and Regulations, to design, construct and dedicate to EVMWD Acquisition Facilities as a
condition to providing water and sewer service to the Property. The Parties also agree and
acknowledge that all responsibility and obligation for the design, construction and dedication of
such Acquisition Facilities to EVM, ", in accordance with all applicable statutes and the
EVMWD Rules and Regulations, shall be and remain the responsibility of the Property Owner.
(d) EVMWD agrees to utilize or apply funds provided to it by the CFD, in
accordance with the Act and other applicable law, and as set forth herein, for the EVMVVD
Charges and Acquisition Facilities to be constructed by Property Owner.
(e) Property Owner shall indemnify, defend, and hold harmless, the City, CFD, and
EVMWD, their respective officers, employees and agents, and each and every one of them 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 resulting from the design, engineering,
construction, and transfer of ownership of the Acquisition Facilities constructed by Property
Owner.
(f) EVMtiVD shall indemnify, defend, and hold harmless, the City, CFD and Property
Owner, their respective officers, employees and agents, and each and every one of them 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 resulting from the design, engineering,
construction, and acquisition of the Acquisition Facilities constructed by EVMWD and the
facilities constructed with the proceeds of the EVMWD Charges.
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Section 2.5 Responsibility for Debt Service or Special Taxes.
EVMWD shall have no obligation, responsibility, or authority with respect to the
issuance and sale of the Bonds, the Bond Proceeds available to finance the construction and
acquisition of the Acquisition Facilities and to pay EVMWD Charges, the payment of the
principal and interest on the Bonds, or for the levy of the Special Taxes to provide for the
payment of principal and interest thereon. The CFD shall have the sole authority and
responsibility for all such matters.
The Parties hereto specifically agree that the liabilities of the CFD, including liabilities,if
any, of the CFD pursuant to the documents providing for the issuance of Bonds, including the
Bond Resolution, shall not be or become liabilities of EVMWD.
Section 2.6 Administration of the CFD.
The City shall have the power and duty to provide for the administration of the CFD once
it is formed, subject to the terms hereof and the Funding Agreement, including employing and
compensating all consultants and providing for the various other administration duties set forth
in this Agreement. It is understood and agreed by Parties hereto that EVMWD will not be
considered a participant in the proceedings relative to formation of the CFD or the issuance of
the Bonds, other than as a Party to this Agreement.
ARTICLE III
CONSTRUCTION AND ACQUISITION OF ACQUISITION FACILITIES
Section 3.1 Construction of Acquisition Facilities by Property Owner.
The following provisions of this Article III shall apply solely with respect to those
Acquisition Facilities to be constructed by the Property Owner and acquired by EVMWD with
Bond Proceeds:
(a) The Property Owner will complete the Plans and Specifications for such
Acquisition Facilities. The Plans and Specifications shall include EVMWD's standard
specifications and shall be subject to EVMWD approval, which shall not be unreasonably
withheld. EVMWD agrees to process any Plans and Specifications for approval with
reasonable diligence and in a timely manner. The Property Owner may proceed with the
construction of any such Acquisition Facilities in accordance with the provisions of Section
3.2 hereof. A qualified engineering firm (the "Field Engineer") shall be employed by
Property Owner to provide all field engineering surveys determined to be necessary by the
EVMWD inspection personnel. Field Engineer shall promptly furnish to EVMWD a
complete set of grade sheets listing all locations, offsets, etc., in accordance with good
engineering practices, and attendant data and reports resulting from the Field Engineer's
engineering surveys and/or proposed facility design changes. EVMWD shall have the right,
but not the obligation, to review, evaluate and analyze whether such results comply with
applicable specifications.
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(b) A full-time soils testing firm, approved by EVMWD, shall be employed by
Property Owner to conduct soil compaction testing and certification. Property Owner shall
promptly furnish results of all such compaction testing to the EVMWD for its review,
evaluation and decision as to compliance with applicable specifications. In the event the
compaction is not in accordance or compliance with applicable specifications, Property
Owner shall be fully liable and responsible therefore. A final report shall be required fully
certifying trench compaction efforts prior to acceptance of each of the Acquisition Facilities.
(c) The cost of all surveying, compaction testing and report'costs associated
with such Acquisition Facilities furnished and constructed by any contractors or sub-
contractors (collectively, "Contractors") shall be included among the costs which are
eligible to be paid from the EVMWD Facilities Fund.
(d) EVMWD shall not be responsible for conducting any environmental,
archaeological, biological, or cultural studies or any mitigation requirements related to the
Acquisition Facilities to be constructed by Property Owner that may be requested by
appropriate Federal, State, and/or local agencies. Any such work shall be paid for and such
work shall be conducted by, or on behalf of Property Owner and the costs of such work shall
be eligible to be paid from the EVMWD Facilities Fund.
Section 3.2 Public Works Requirements.
In order to insure that the Acquisition Facilities to be constructed by the Property Owner,
completed after formation of the CFD and acquired with Bond Proceeds will be constructed as if
they had been constructed under the direction and supervision, or under the authority of, the
EVMWD, so that they may be acquired by the EVMWD pursuant to Government Code Section
53313.5, the Property Owner shall comply with all of the following requirements:
(a) The Property Owner shall obtain bids for the construction of such
Acquisition Facilities in conformance with the standard procedures and requirements of the
EVMWD with respect to its public works projects or in a manner which is approved by the
EVMWD Representative.
(b) The contract or contracts for the construction of such Acquisition Facilities
shall be awarded to the responsible bidder(s) submitting the lowest responsive bid(s) for the
construction of such Acquisition Facilities.
(c) The Property Owner shall require, and the specifications and bid and
contract documents shall require all such Contractors to pay prevailing wages and to
otherwise comply with applicable provisions of the Labor Code, the Government Code and
the Public Contract Code relating to public works projects and as required by the procedures
and standards of the EVMWD with respect to the construction of its public works projects.
(d) Said Contractors shall be required to furnish labor and material payment
bonds and contract performance bonds in an amount equal to 100 percent of the contract
price naming the Property Owner and the EVMWD as obligees and issued by insurance or
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surety companies approved by the EVMWD. All such bonds shall be in a form approved by
the EVMWD Representative. Rather than requiring its Contractors to provide such bonds,
the Property Owner may elect to provide the same for the benefit of its Contractors.
(e) All such Contractors shall be required to provide proof of insurance
coverage throughout the term of the construction of such Acquisition Facilities which they
will construct in conformance with EV 4"'s standard procedures and requirements.
(f) The Property Owner and all such Contractors shall comply with such other
requirements relating to the construction of such Acquisition Facilities which the EVMWD
may impose by written notification delivered to the Property Owner and each such
Contractor at any time either prior to the receipt of bids by the Property Owner for the
construction of such Acquisition Facilities or, to the extent required as a result of changes in
applicable laws, during the progress of construction thereof. In accordance with this Section
3.2, the Property Owner shall be deemed the awarding body and shall be solely responsible
for compliance and enforcement of the provisions of the Labor Code, Government Code,
and Public Contract Code of the State of California.
The Property Owner shall provide proof to the EVMWD, at such intervals and in such form
as the EVMWD Representative may require, that the foregoing requirements have been satisfied as
to all of the Acquisition Facilities constructed by Property Owner, acquired by EVMWD and paid
for with Bond Proceeds.
Section 3.3 Inspection, Completion of Construction.
�.. EVMVVD shall have primary responsibility for providing inspection of the construction of
the Acquisition Facilities constructed by the Property Owner to insure that the construction is
accomplished in accordance with the Plans and Specifications_ EVMWD's personnel shall have
access to the site of the work at all reasonable times for the purpose of accomplishing such
inspection. Upon Substantial Completion of the construction of such Acquisition Facilities by
Property Owner, the Property Owner shall notify the EVMWD in writing that the construction of
such Acquisition Facilities has been Substantially Completed.
Upon receiving such written notification from the Property Owner, and upon receipt of
written notification from its inspectors that construction of any of the Acquisition Facilities by
Property Owner has been Substantially Completed, the EVMWD shall in a timely manner notify the
Property Owner in writing that the construction of such Acquisition Facilities has been satisfactorily
completed. Upon receiving such notification, the Property Owner shall forthwith file with the
County Recorder of the County of Riverside a Notice of Completion pursuant to the provisions of
Section 3093 of the Civil Code. The Property Owner shall furnish to the EVMWD a duplicate copy
of each such Notice of Completion showing thereon the date of filing with the County Recorder.
Any actual costs reasonably incurred by the EVMWD in inspecting and approving the construction
of any Acquisition Facilities by Property Owner not previously paid by the Property Owner shall be
eligible to be reimbursed from the EVMWD Facilities Fund or paid directly by Property Owner.
Section 3.4 Liens.
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Upon the expiration of the time for the recording of claim of liens as prescribed by Sections
3115 and 3116 of the Civil Code, the Property Owner shall provide to the EVMWD such evidence
or proof as the EVMWD shall require that all persons, firms and corporations supplying work,
labor, materials, supplies and equipment on behalf of Property Owner for the construction of any
Acquisition Facilities have been paid, and that no claims of liens have been recorded by.or on behalf
of any such person, firm or corporation. Rather than await the expiration of the said time for the
recording of claims of liens, the Property Owner may elect to provide to the EVMWD a title
insurance policy or other security acceptable to the EVMWD guaranteeing that no such claims of
liens will be recorded or become a lien upon the Property with priority over the lien of the special
taxes to be levied thereon in the proceedings for the formation of the CFD.
Section 3.5 Acquisition,Acquisition Price; Source of Funds
Provided the Property Owner has complied with the requirements of this Agreement,
EVMWD agrees to acquire the Acquisition Facilities from the Property Owner. The price to be
paid by the CFD for the acquisition of such Acquisition Facilities by EVMWD (the "Acquisition
Price") shall be the lesser of(1) the value of the Acquisition Facilities or (ii) the total of the Actual
Costs of the Acquisition Facilities. The Property Owner shall transfer ownership of the Acquisition
Facilities to the EVMWD by grant deed, bill of sale or such other documentation as the EVMWD
may require. Upon the transfer of ownership of the Acquisition Facilities or any portion thereof
from the Property Owner to EVMWD, EVMWD shall be responsible for the maintenance of the
Acquisition Facilities or the portion transferred.
For purposes of determining the Acquisition Price to be paid by the CFD for the acquisition
of the Acquisition Facilities by EVMWD, the value of such improvements shall be the amount
�.. determined by the engineering firm retained by the EVMWD for such purpose (the "Engineer"), to
be the value of the Acquisition Facilities based on the Actual Costs submitted by the Property
Owner, as hereinbefore specified; provided, however, that if the Engineer determines that such
Actual Costs, or any of them, are excessive and that the value of the Acquisition Facilities is less
than the total amount of such Actual Costs, the Acquisition Price to be paid by the CFD for the
acquisition of the Acquisition Facilities shall be the value thereof as determined by the Engineer.
Upon completion of the construction of any Acquisition Facilities by Property Owner, the
Property Owner shall deliver to EVMWD copies of the contract(s) with the Contractor(s) who have
constructed the Acquisition Facilities or other relevant documentation with regard to the payments
made to such Contractor(s) and each of them for the construction of such Acquisition Facilities, and
shall also provide to EVMWD copies of all invoices and purchase orders with respect to all supplies
and materials purchased for the construction of such Acquisition Facilities. EVMVVD shall require
the Engineer to complete its determination of the value of the Acquisition Facilities as promptly as
is reasonably possible.
The Acquisition Price of any Acquisition Facilities may be determined and paid out of
the EVMWD Facilities Fund prior to transfer of ownership of the Acquisition Facilities to
EVMWD upon a determination of Substantial Completion of such Acquisition Facility. Property
Owner shall submit a payment request form to the CFD in the format and with the information
required by the Funding Agreement, which must also contain therewith approval of EVMWD,
which approval shall not be unreasonably withheld.
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Notwithstanding the preceding provisions of this section, the sole source of funds for the
acquisition by EVMWD of the Acquisition Facilities or any portion thereof shall be the Bond
�-- Proceeds made available by the CFD pursuant to Section 2.3 above. If for any reason beyond
EVMWD's control, the proceedings for the formation of the CFD are not completed or the Bonds
are not sold, EVMWD shall not be required to acquire any Acquisition Facilities from the Property
Owner. in such event, the Property Owner shall complete the design and construction and offer to
the EVMWD ownership of such portions of Acquisition Facilities as are required to be constructed
by the Property Owner as a condition to recordation of subdivision maps for the Property or any
other agreement between Property Owner and EVMWD, but need not construct any portion of the
Acquisition Facilities which it is not so required to construct.
Any credits to be applied against EVMWD Charges as a result of constructing Acquisition
Facilities are addressed in that certain "Agreement Regarding Facilities and Facilities Fees —
Canyon Hills (Cottonwood Hills Specific Plan)" between Property Owner and EVMWD dated
August 7, 2002, as it may be amended.
Section 3.6 Easements.
The Property Owner shall, at the time EVMWD acquires the Acquisition Facilities as
provided in Section 3.2 hereof, grant to EVMWD, by appropriate instruments prescribed by
EVMWD, all easements on private property which may be reasonably necessary for the proper
operation and maintenance of such Acquisition Facilities, or any part thereof.
Section 3.7 Maintenance.
Prior to the transfer of ownership of an Acquisition Facility by the Property Owner to the
EVMWD, as provided in Section 3.5 hereof, the Property Owner shall be responsible for the
maintenance thereof and shall maintain and transfer such Acquisition Facility to EVMWD in as
good condition as the Acquisition Facility was in at the time the Property Owner notified the
EVMWD that construction of same had been completed in accordance with the Plans and
Specifications.
The Parties agree that the construction and acquisition of the Acquisition Facilities to be
constructed by Property Owner is a matter between Property Owner and EVMWD only, and that
the City and the CFD shall have no responsibility for on-site inspection or monitoring or for
certifying that the provisions of Article III of this Agreement be satisfied.
The Parties also agree that, notwithstanding anything in this Agreement to the contrary,
certain Acquisition Facilities specified in Exhibit "B" have been completed prior to the date of this
Agreement and, subject to EVMWD's determination of the Acquisition Price of such Acquisition
Facilities, are eligible to be financed with the Proceeds of the Bonds.
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ARTICLE IV
TERM AND TERMINATION
Section 4.1 Effective Date.
This Agreement shall become effective and of full force and effect as of the date
("Effective Date") it is approved by the Property Owner, the City Council of the City and
governing board of the EVMWD, to be confirmed by the execution hereof by the authorized
representatives of the Parties hereto.
Section 4.2 Termination.
If the CFD is unable to complete the sale of the first series of Bonds prior to July 1, 2006,
this Agreement shall thereafter automatically terminate and be of no further force or effect.
ARTICLE V
ADDITIONAL GENERAL PROVISIONS
Section 5.1 Recordkeeping; Inspection of Records.
EVMWD hereby agrees to keep and maintain full and accurate records of all amounts,
and investment earnings, if any, paid to EVMWD for the EVMWD Charges and the City hereby
agrees to keep and maintain full and accurate records of all amounts, and investment earnings, if
any, expended from the EVNfWD Facilities Fund. Each Party further agrees to make such
records available to any other Party hereto, including Property Owner, during normal business
hours upon reasonable prior notice. All such records shall be kept and maintained by the
appropriate Party as provided by applicable law and their respective policies. Each of EVMWD
and Property Owner agree that they will cooperate with the CFD and the City in providing
documentation, reports or other data reasonably required and requested by the City or the CFD in
meeting the reporting requirements of the CFD under California Senate Bill (SB) No. 165,
Chapter 535 of the Statutes of 2000.
Section 5.2 Partial Invalidity.
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.
Section 5.3 Successors and Assigns.
Property Owner may assign its rights pursuant to this Agreement to a purchaser of the
Property, or any portion thereof who shall be the owner of any Acquisition Facilities as payer of
any EVMWD Charges and to whom Property Owner shall assign the right to receive payment of
the Acquisition Price for such Acquisition Facilities or other rights under this Agreement with
respect to EVMWD Charges. Such a purchaser and assignee shall enter into an assignment
agreement with the EVMWD and the City, in a form acceptable to the EVMWD and the City,
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whereby such purchaser agrees, except as may be otherwise specifically provided therein, to
assume the obligations of Property Owner pursuant to this Agreement and to be bound thereby.
This Agreement shall be binding upon and inure to the benefit of the successors and assigns of
the Parties hereto.
Section 5.4 Notice.
Any notice, payment or instrument required or permitted by this Agreement to be given
or delivered to any Party or other person shall be deemed to have been received when personally
delivered or upon deposit of the same in the United States Post Office registered or certified,
postage prepaid, addressed as follows:
City: City of Lake Elsinore
130 S. Main Street
Lake Elsinore, CA 92530
Attention: City Manager
EVMWD= Elsinore Valley Municipal Water District
31315 Chaney Street
Lake Elsinore, CA 92530
Attention: General Manager
Property Owner: Pardee Homes
10880 Wilshire Blvd, Suite 1900
Los Angeles, CA 90024
Attention: General Counsel
Each Party can change its address for delivery of notice by delivering written notice of
such change or address to the other parties within ten (10) calendar days prior to such change.
Section 5.5 Captions.
The captions to Sections used herein are for convenience purposes only and are not part
of this Agreement.
Section 5.6 Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the
State of California applicable to contracts made and performed in such State.
Section 5.7 Entire Agreement.
This Agreement contains the entire agreement between the parties with respect to the
matters provided for herein and supersedes all prior agreements and negotiations between the
Parties with respect to the subject matter of this Agreement.
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Section 5.8 Amendments.
This Agreement may be amended or modified only in writing executed by the authorized
representative(s) of each of the Parties hereto.
Section 5.9 Waiver.
The failure of any Party hereto to insist on compliance within any of the terms, covenants
or conditions of this Agreement by any other Party hereto, shall not be deemed a waiver of such
terms, covenants or conditions of this Agreement by such other Party, nor shall any waiver
constitute a relinquishment of any other right or power for all or any other times.
Section 5.10 Cooperation and Execution of Documents
The Parties hereto agree to complete and execute any further or additional documents
which may be necessary to complete or further the terms of this Agreement.
Section 5.11 Attorneys' Fees.
In the event of the bringing of any action or suit by any Party against any other Party
arising out of this Agreement, the Party in whose favor final judgment shall be entered shall be
entitled to recover from the losing Party all costs and expenses of suit, including reasonable
attorneys' fees.
Section 5.12 Exhibits.
`- The following exhibits attached hereto are incorporated into this Agreement by reference.
Exhibit Description
"A" CFD Boundary Map
"B" Acquisition Facilites Description
Section 5.13 Signatories.
The signatories hereto represent that they have been appropriately authorized to enter into
this Agreement on behalf of the party for whom they sign.
Section 5.14 Execution in Counterparts
This Agreement may be executed in counterparts, each of which shall be deemed an
original.
[Remainder of this page is blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Joint Community
Facilities Agreement as of the day and year written alongside their signature below.
CITY OF LAKE ELSINORE
By: &&4011iLajVj
Date: Its: City Mana er
APPROVED AS TO FORM
VAN BL�RCOM, LEIBOLD, MC ND
& MANN, P.C.
By: dL
4(Z--
Zara Leiboldd
ATTE
By:
City Clerk
ELSINORE. ALLEY MUNICIPAL WATER
DISTRIC
By:
�. Ge e 1 Manager f the Els' of Valley
Date: M nic al Water i trict
PARDEE HOMES, a liforn c rporation
By:
Name-
Title:
By-
Name:
Title:
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15
IN WITNESS WHEREOF, the parties hereto have executed this Joint Community
Facilities Agreement as of the day and year written alongside their signature below.
CITY OF LAKE ELSINORE
By:
Date: Its: City Manager
APPROVED AS TO FORM
VAN BLARCOM, LEIBOLD, MCCLENDON
& MANN, P.C.
By:
Barbara Leibold
ATTEST:
By:
City Clerk
ELSINORE VALLEY MUNICIPAL WATER
DISTRICT
By.
General Manager of the Elsinore Valley
Date: Municipal Water District
PARDEE HOMES, a California corporation
By: C6L '
Name: osema Bonnevie
Title: Assistant Vice President
By:
Name: A.Pya%N.Vice President
Title:
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15
PROPOSED BOUNDARY OF
COMMUNITY FACiUTiES DISTRICT No. 2003-2
OF THE CITY OF LAKE ELSINORE
(CANYON HILLS)
COUNTY OF RIVERSIDE,
STATE OF CALIFORNIA
LYPROVEIAENT AREA 8------
111PROM3"T AREA D
FIPROVDAENT AREA A
AREA C
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' IACLf=OE5T10CT ND 2M3-7 a"OF LAXr 0SWOM COUNTY a WW3tgK STATE OF CA1101MA WAS ARROWD fY
7HE OTY MAOX OF THE OTY CF LAKE E SMORE: AT A IEGLAIQY 90iDUEED WHIM MEW.NEW ON
DAY OF 2001 sY Trs R[90w1m No.
` FSED TIQ_DAY OF 2001. AT THE NODE Or O'ODOLy.N IDO(—OF YAPS
O/ASSE M"T AND COERRMTY FACTIJTES DmIWTS CAGE NOS`REE(K/(>rL_AS BESiR1uEM M0.
N TW OFFTL!0 TIE COUNTY RECOPI R N M UN COTY airIBWESbE,STA1E 6 CM/L2RNA
' FFr t
t
' Aal) MF TK Rr%ERStX COUNTY ASSIS90"YAPS FOR A OETAIUM DESOPAW W PARCEL UEo MO MID49015
H
'AaNITM YAP PROPOSED BOUNDARY MAP
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B N.
EXHIBIT "B"
ACQUISITION FACILITIES DESCRIPTION
The type of Acquisition Facilities eligible to be financed by the CFD under the Act are as
follows:
"Acquisition Facilities" means those facilities needed by EVMWD in order to
provide services to the Project and also includes any of the following: EVMWD
sewer and water transmission lines, sewer and water pump stations, water reservoirs,
including all costs of site acquisition, planning, design, engineering, legal services,
materials testing, coordination, surveying, construction staking, construction,
inspection and any and all appurtenant facilities relating to the foregoing.
"Acquisition Facilities" shall also include any attributable expenses related to the
issuance and sale of any "debt", as defined in Section 53317(d) of the Act, including
underwriters' discount, appraisals, market studies, reserve fund, capitalized interest,
bond counsel, special tax consultant, bond and official statement printing,
administrative expenses of EVMWD, the CFD and bond trustee or fiscal agent related
to the CFD, and any such debt and all other incidental expenses. The Acquisition
Facilities shall be constructed, whether or not acquired in their completed states,
pursuant to the Plans and Specifications approved by EVMVWD, which will not be
unreasonably withheld.
The Acquisition Facilities listed in this Exhibit B are representative of the types of
facilities eligible to be financed by the CFD. Detailed scope and limits of specific
projects will be determined as appropriate, consistent with the standards of EVMWD.
The following Acquisition Facilities have been completed prior to the date of this
Agreement and, subject only to determination of the Acquisition Price of such
Acquisition Facilities, are eligible to be financed with the Proceeds of the Bonds:
18" (1,315 LF) and 20" (1,320 LF) water transmission line in Railroad Canyon
Road
18" (4,700 LF) and 2 1" (3,050 LF) trunk sewer line in Railroad Canyon Road
16" (3,200 LF) reclaimed water line in Railroad Canyon Road
12" (14,211 LF) and 16" (9,730 LF)water transmission line in Canyon Hills Road
8" trunk sewer line(3,950 LF) in Canyon Hills Road
12" (4,900 LF) reclaimed water line in Canyon Hills Road
6" (2,320 LF) reclaimed water line in Lost Road
1,750 zone water tank(s)
1,934 zone water tank(s)
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