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2014/05/01 Eastern Municipal Water District (EMWD) Joint Community Facilities 2014-65 JOINT COMMUNITY FACILITIES AGREEMENT THIS JOINT COMMUNITY FACILITIES AGREEMENT (the "Agreement") is entered into effective as of the 15tday of )Wa y 2014, by and among EASTERN MUNICIPAL WATER DISTRICT, County of Riverside, State of California,a municipal water district organized and operating pursuant to the Municipal Water District Law of 1911 as set forth in the California Water Code ("EMWD"), the City of Menifee, a California general law city ("City")and Menifee 28859, LLC, a California limited liability company ("Property Owner"). This Agreement relates to the proposed formation by EMWD of a community facilities district to be known as "Community Facilities District No. 2014-65 (Menifee 28859) of Eastern Municipal Water District" (the "CFD") for the purpose of financing certain fees to construct facilities to be owned and operated by City from the proceeds of special taxes of, and bonds issued by the proposed CFD. RECITALS: A. The property described and depicted in Exhibit A hereto (the "Property"), which is located in the City of Menifee, County of Riverside, State of California, is proposed to constitute the land within the boundaries of the CFD. B. Property Owner owns the Property and intends to develop the Property for residential purposes. C. Property Owner petitioned EMWD to form the CFD for the purpose of financing, among other things, the payment of fees for the construction of various public facilities to be owned and operated by City as described in Exhibit B hereto, which facilities will benefit the Property in whole or in part, including certain public facilities to be constructed and owned and operated by City (the "City Fee Facilities") in lieu of the payment of City Fees (defined herein). D. Property Owner has yet to determine whether it will finance any or all of the City Fee Facilities, in lieu of payment of City Fees, with Bond Proceeds (defined below) that are available for such purpose. The parties hereto acknowledge that the purpose of this Agreement is to satisfy the requirements of the Act. E. In conjunction with the issuance of building permits for the construction of homes within the Property and/or receipt of final inspections or occupancy certificates for such homes, Property Owner, or its successors or assigns, may elect to advance City Fee Facilities costs in lieu of payment of City Fees (the "Advances") at such times as Bond Proceeds are not available in a sufficient amount to pay for City Fee Facilities. In such case, Property Owner shall be entitled to (i)reimbursement of such Advances and (ii) credit for payments made to City from Bond Proceeds against City Fees which would otherwise be due to City in conjunction with the development of the Property, all as further described herein. F. In addition to the City Fee Facilities, certain facilities to be owned and operated by EMWD (the "EMWD Facilities") are also expected to be funded from Bond Proceeds. G. EMWD will have sole discretion and responsibility for the formation and administration of the CFD. H. EMWD is authorized by Section 53313.5 of the Act to assist in the financing of the acquisition and/or construction of the City Fee Facilities. This Agreement constitutes a joint community facilities agreement, within the meaning of Section 53316.2 of the Act, by and among City, Property Owner and EMWD, pursuant to which the CFD, when and if formed, will be authorized to finance the acquisition and/or construction of all or a portion of the City Fee Facilities. As authorized by Section 53316.6 of the Act, responsibility for constructing, providing for and operating the City Fee Facilities is delegated to City. I. The parties hereto find and determine that the residents residing within the boundaries of City, EMWD and the CFD will be benefited by the construction and/or acquisition of the EMWD Facilities and City Fee Facilities and that this Agreement is beneficial to the interests of such residents. 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. 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, Chapter 2.5 (commencing with Section 53311) of Part 1 of Division 2 of Title 5 of the California Government Code. (b) "Advance" means an amount advanced by Property Owner to City for City Fee Facilities in lieu of payment of City Fees prior to the availability of sufficient Bond Proceeds. (c) `Bonds" shall mean those bonds, or other securities, issued by, or on behalf of the CFD in one or more series, as authorized by the qualified electors within the CFD. (d) "Bond Proceeds"shall mean those funds generated by the sale of each series of Bonds secured by the Special Taxes, net of costs of issuance, reserve fund, capitalized interest and administrative expenses. (e) "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. (f) "City Fees" means those capital improvement fees, and all components thereof,imposed by City in connection with development of any portion of the Property to finance City Fee Facilities; as further described in Exhibit B hereto. (g) "City Fee Facilities" means those City capital improvements eligible to be financed with the City Fees. (h) "EMWD Facilities" means those public improvements to be owned, operated or maintained by EMWD identified in proceedings to form the CFD that are eligible to be financed with Bond Proceeds. (i) "Other Facilities Account of the Improvement Fund" means the fund, account or sub-account of the CFD (regardless of its actual designation within the Bond Resolution) into which a portion of the Bond Proceeds may be deposited in accordance with the Bond Resolution to finance City Fee Facilities and which may have subaceounts. (j) "Party" or "Parties" shall mean anyone or all of the parties to this Agreement. (k) "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. (1) "Special Taxes" means the special taxes authorized to be levied and collected within the CFD pursuant to the Rate and Method. (m) "State"means the State of California. 3. Proposed Formation of the CFD. EMWD will undertake to analyze the appropriateness of forming the CFD to finance the City Fee Facilities and other facilities. EMWD will retain, at the expense of the Property Owner,the necessary consultants to analyze the proposed formation of the CFD. 4. Sale of Bonds and Use of Bond Proceeds. In the event that the CFD is formed, the Board of Directors of EMWD acting as the legislative body of the CFD may, in its sole discretion, finance City Fee Facilities by issuing the Bonds. To the extent that the CFD and Property Owner determine that Bond Proceeds are available to finance City Fee Facilities, the EMWD shall notify City of the amount of such Bond Proceeds deposited in the Other Facilities Account of the Improvement Fund that is available for such purpose. As Bond Proceeds are transferred to City as described in Section 5 below, the portion of the Property with respect to which such transfer was made shall receive a credit in the amount transferred against the payment of City Fees. Nothing herein shall supersede the obligation of a Property Owner to make Advances or otherwise pay City Fees to City when due. The purpose of this Agreement is to provide a mechanism by which the CFD may issue the Bonds to provide a source of funds to finance City Fee Facilities in lieu of the payment of City Fees. In the event that Bond Proceeds are not available or sufficient to satisfy the obligation, then Property Owner shall remain obligated to make Advances or otherwise pay City Fees to City as required by the City in accordance with applicable law. The Bonds shall be issued only if, in its sole discretion, the 'Board of Directors of EMWD determines that all requirements of State and Federal law and all EMWD policies have been satisfied or have been waived by EMWD. Nothing in this Agreement shall confer upon City or any owner of the Property, including Property Owner, a right to compel the issuance of the Bonds or the disbursement of Bond Proceeds to fund City Fee Facilities except in accordance with the terms of this Agreement. 5. Disbursements. (a) Upon the funding of the Other Facilities Account of the Improvement Fund, Properly Owner may execute and submit a payment request to EMWD or the CFD requesting disbursement to the Property Owner, or its written designee, from the Other Facilities Account of the Improvement Fund of an amount equal to all or a portion of the Advances. The sole source of funds from which Property Owner will be entitled to receive reimbursement of the Advances and from which Property Owner may request disbursements pursuant to Section 5(b) below shall be Bond Proceeds deposited in the Other Facilities Account of the Improvement Fund. (b) From time to time following the funding of the Other Facilities Account of the Improvement Fund, Property Owner may notify City in writing and City and Property Owner shall jointly request a disbursement from the Other Facilities Account of the Improvement Fund to fund City Fee Facilities by executing and submitting a request for payment, in substantially the form attached hereto as Exhibit C (the "Disbursement Request"). Upon receipt of such Disbursement Request completed in accordance with the ternas of this Agreement, the CFD shall wire transfer or otherwise pay to City such requested funds to the extent that Bond Proceeds are then available, or subsequently become available, in the Other Facilities Account of the Improvement Fund for such purpose. Upon such notice and City's receipt of such disbursement relating to City Fees, the Property Owner shall be deemed to have satisfied the applicable City Fees with respect to the number of dwelling Units or lots for which the City Fees would otherwise have been required in an amount equal to the amount of such disbursement divided by the per lot or unit amount of the applicable City Fees. (c) City agrees that prior to submitting a Disbursement Request requesting payment from the CFD it shall review and approve all costs included in its request and will have already paid or incurred such costs of City Fee Facilities from its own fiends subsequent to the date of this Agreement, or will disburse such amounts to pay the costs of the City Fee Facilities following receipt of finds from the CFD. In the event that City does not disburse any Bond Proceeds received by it to third parties within five banking days of receipt, it will trace and report to the CFD all earnings, if any, earned by City, from the date of receipt of such Bond Proceeds by City to the date of expenditure by City for capital costs of the City Fee Facilities. Such report shall be delivered at least semiannually until all Bond Proceeds are expended by City. City agrees that in processing the above disbursements it will comply with all legal requirements for the expenditure of Bond Proceeds under the Internal Revenue Code of 1986 and any amendments thereto. (d) City agrees to maintain adequate internal controls over its payment function and to maintain accounting records in accordance with generally accepted accounting procedures. City will, upon request, provide EMWD and/or Property Owner with access to City's records related to the City Fee Facilities and will provide to EMWD its annual financial report certified by an independent certified public accountant for purposes of assisting EMWD in calculating the arbitrage rebate obligation of the CFD, if any. (e) EMWD or the CFD agrees to maintain full and accurate records of all amounts, and investment earnings, if any, expended from each Other Facilities Account of the Improvement Fund. EMWD or the CFD will, upon request, provide City and the Property Owner with access to EMWD's or the CFD's records related to the Other Facilities Account of the Improvement Fund. 6. Ownershipof f City Fee Facilities. The City Fee Facilities shall be and remain the property of City. 7. Indemnification. (a) Indemnification by EMWD. EMWD shall assume the defense of, indemnify and save harmless, City, its 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, any act or omission of EMWD with respect to this Agreement and the issuance of the Bonds; provided, however, that EMWD shall not be required to indemnify any person or entity as to damages resulting from negligence or willful misconduct of such person or entity or their officers, agents or employees. (b) Indemnification by Property Owner. Property Owner shall assume the defense of, indemnify and save harmless, EMWD, the CFD and City, 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, any act or omission of Property Owner with respect to this Agreement; provided, however,that Property Owner shall not be required to indemnify any person or entity as to damages resulting from negligence or willful misconduct of such person or entity or their officers, agents or employees. (c) Indemnification by City. City shall assume the defense of, indemnify and save harmless, EMWD, the 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, any act or omission of City with respect to this Agreement, and the design, engineering and construction of the City Fee Facilities constructed by City; provided, however, that City shall not be required to indemnify any person or entity as to damages resulting from negligence or willful misconduct of such person or entity or their officers, agents or employees. 8. Allocation of Special Taxes. The Board of Directors of EMWD, as the legislative body of the CFD, shall annually levy the Special Tax as provided for in the formation proceedings of the CFD. The entire amount of any Special Tax levied by the CFD to repay Bonds, or to fiord other obligations, shall be allocated to the CFD. 9. Amendment and Assigrmment. This Agreement may be amended at any time but only in writing signed by each Party hereto. This Agreement may be assigned, in whole or in part, by Property Owner to the purchaser of any parcel of land within the Property provided, however, such assignment shall not be effective unless and until City and EMWD have been notified, in writing, of such assignment. 10. 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. 11. Notices. 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 personally delivered or seventy two hours following deposit of the same in any United States Post Office in California, registered or certified, postage prepaid, addressed as follows: EMWD: Eastern Municipal Water District 2270 Trumble Road P.O. Box 8300 Perris, CA 92572 Attn: Director of Finance City: City of Menifee 29714 Haun Road Menifee, CA 92586 Attn: City Clerk Property Owner: Menifee 28859, LLC 14 Cameo Crest Laguna Niguel, CA 92677 Attn: Mr. Steven T. Ash Each Party may change its address for delivery of notice by delivering written notice of such change of address to the other 'Party hereto. 12. Exhibits. All exhibits attached hereto are incorporated into this Agreement by reference. 13. 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. 14. 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. 15. Governina Law. This Agreement and any dispute arising hereunder shall be governed by and interpreted in accordance with the laws of the State of California. 16. Waiver. Failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party hereto, or the failure by a Party to exercise its rights upon the default of another Party, shall not constitute a waiver of such Party's right to insist and demand strict compliance by such other Party with the terms of this Agreement thereafter. 17. No Third Party Beneficiaries. No person or entity other than the CFD, when and if formed, 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 City,EMWD, the CFD, and the Property Owner (and their respective successors and assigns, exclusive of individual homebuyers), any rights, remedies, obligations or liabilities under or by reason of this Agreement. 18. 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. 19. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute but one instrument. [Signature Page Follows) IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year written above. EMWD EASTERN MU ICIPAL WATER DISTRICT By: Paul D. Jones II, e ral Manager ATTEST: By: Secretary, Board of Directors CITY OF MEN By: Name: 'OlCov—t k , 1& 7/,) Title: ATTEST: By: Clerk of the City PROPERTY OWNER Menifee 28859, LLC, a California li ited liability /company By: -7• Steven T. Ash, Managing Member EXHIBIT A DESCRIPTION OF PROPERTY Real property in the City of Menifee, County of Riverside, State of California, described as follows: LOTS 1 THROUGH 163, INCLUSIVE,AND LOTS A THROUGH O, INCLUSIVE, OF TRACT NO. 28859, IN THE CITY OF MENIFEE, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 431, PAGES 66 THROUGH 81 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. BOUNDARY MAP PROPOSED BOUNDARIES SHEET 1 OF I SHEETS COMMUNITY FACITITIES DISTRICT NO. 2014-65 (MENIFEE 28859) OF THE EASTERN MUNICIPAL WATER DISTRICT COUNTY OF RIVERSIDE, STATE OF CALIFORNIA TRACT NO. 28859 I HEREBY CERTIFY THAT THE WITHIN MAP SHOWING PROPOSED BOUNDARIES OF COMMUNITY FACILITIES DISTRICT NO.2014-65, (MENIFEE 28859)OF THE EASTERN MUNICIPAL WATER DISTRICT, COUNTY OF RIVERSIDE,STATE OF CALIFORNIA,WAS APPROVED BY THE BOARD OF DIRECTORS OF THE EASTERN MUNICIPAL WATER DISTRICT AT A REGULAR MEETING THEREOF, HELD ON THE_DAY OF ,2014, BY RESOLUTION NO. SECRETARY OF THE BOARD OF DIRECTORS, EASTERN MUNICIPAL WATER DISTRICT FILED IN THE OFFICE OF THE SECRETARY OF THE BOARD OF DIRECTORS OF EASTERN MUNICIPAL WATER DISTRICT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA THIS _ DAY OF , 2014, SECRETARY OF THE BOARD OF DIRECTORS EASTERN MUNICIPAL WATER DISTRICT RECORDED THIS DAY OF 2014 AT THE HOUR OF O'CLOCK _M IN BOOK _ PAGE _ OF MAPS OF ASSESSMENT AND COMMUNITY FACILITIES DISTRICTS IN THE OFFICE OF THE COUNTY RECORDER, IN THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA. FEE: fix+ MARRY W.WARD,RIVERSIDE COUNTY ASSESSOR-CLERK-RECORDER BY: DEPUTY APNs 339-500-001 thm 339-500-027 9 339-501-001 thm 339-501-005 339502-001 thin 339502-M 339J82-020 thm 339-362-027 C 339510.001 thm 339-510-012 =wl 339511-Ml thin 339-511-031 339-512-001 thru 339-512-014 339-520-007 ihru 339-520-019 339521-001 thm 339-521-012 E 339522-001 Ihru 339-522-029 CFO NO.2014-fib 0 5 R=l� i LEGEND PRO➢NT BCOMMUNITY FACILI11E5 DISTRICi BOUNDARY �-- PARCEI LINE VICINITY MAP _ BAN THIS BOUNDARY MAP CORRECTLY SHOWS THE BOUNDARIES OF W �/ E A oFnRi R� THE COMMUNITY FAULMES DISTRICT. FOR DETAILSCONCER VVV Aso ➢MCELSNING EFER HE LINES AND THE COUNTY ASSESSORSSNS OF LTS OR 5MAPS FOR FISCAL 0 00 000 Feel w nn un nw•n. YEAR 20132014, W0, 14 0052 EXHIBIT B CITY FEES The type of City Fee Facilities eligible to be financed by the CFD under the Act are the capital improvements authorized to be financed with the City development impact fees ("DIP) imposed pursuant to County Ordinance No. 659, as adopted by the City and as amended as of the date of this Agreement by City Ordinance No. 2010-76, and as subsequently amended by the City. Sequence No. City SA# EXHIBIT C DISBURSEMENT REQUEST FORM 1. Community Facilities District No. 2014-65 (Menifee 28859) of Eastern Municipal Water District ("CFD") is hereby requested to pay from Bond Proceeds to the City of Menifee ("City"), as Payee, the sum set forth in 3 below. 2. The undersigned certifies that the amount requested for City Fee Facilities is due and payable, has not formed the basis of prior request or payment, and is being made with respect to the property described in Exhibit A to the Joint Community Facilities Agreement by and among Eastern Municipal Water District, City of Menifee, and Menifee 28859, LLC, dated as of , 2014 (the "JCFA"). 3. Amount requested: $ For Tract/Lot Nos: 4. The amount set forth in 3 above is authorized and payable pursuant to the terms of the JCFA. Capitalized terms not defined herein shall have the meaning set forth in the JCFA. PROPERTY OWNER By: Name: Title: CITY OF MENIFEE By: Name: Title: ATTEST: By: Cleric of the City cc: City Finance Dept.