2021/11/03 Meritage Homes of California, Inc. Community Facilities District No. 2021-2 of the City of Menifee (Sumac Ridge) Acquisition, Construction, and Funding Agreement (missing Meritage signature)
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COMMUNITY FACILITIES DISTRICT NO. 2021-2
OF THE CITY OF MENIFEE (SUMAC RIDGE)
ACQUISITION, CONSTRUCTION AND FUNDING AGREEMENT
THIS ACQUISITION, CONSTRUCTION AND FUNDING AGREEMENT (the
“Agreement”) is made and entered into by and between CITY OF MENIFEE (the “City”), acting
for and on behalf of itself and COMMUNITY FACILITIES DISTRICT NO. 2021-2 OF THE CITY
OF MENIFEE (SUMAC RIDGE) (the “Community Facilities District” or “CFD”) and MERITAGE
HOMES OF CALIFORNIA, INC., a California corporation (the “Developer”), each individually a
“Party” and collectively the “Parties.”
WHEREAS, Developer has requested that the City consider the formation of a
community facilities district pursuant to the provisions of the Mello-Roos Community Facilities
Act of 1982, as amended (the “Act”), and the City has undertaken proceedings for the
authorization of special taxes and issuance of bonded indebtedness for the payment of the
construction and/or acquisition of certain improvements to be owned, operated or maintained by
the City, Eastern Municipal Water District (the “Water District”), and Menifee Union School
District (the “School District”), and incidental expenses in accordance with the Act; and
WHEREAS, in order to proceed in a timely way with development of the property within
the CFD which is described in the attached Exhibit “A” (the “Developer Property”), Developer
desires to fund through the Community Facilities District (i) the City’s acquisition or construction
of certain improvements that are to be owned, operated and maintained by the City or are
otherwise required for development (“City Improvements”), as more particularly set forth and
described in the Description of Cost Estimates attached hereto as Exhibit “B,”
(ii) improvements included in the City’s fee programs (the “City Fee Facility Improvements”), as
more particularly set forth and described in Exhibit “B,” and (iii) the improvements of the Water
District and the School District described in Exhibit “C” hereto (the “Miscellaneous
Improvements” and together with the City Improvements and the City Fee Facilities
Improvements, collectively the “Improvements”); and
WHEREAS, the City is authorized by the Act to form the CFD and to issue bonds
secured by Special Taxes (as defined in Section 2.2) of the CFD (the “Bonds”) to fund the
Improvements; and
WHEREAS, the City Council has adopted the City’s policies and procedures concerning
the use of special district financing programs to finance the City facilities (the “Policy”); and
WHEREAS, the purpose of this Agreement is to constitute a formal understanding
between Developer and the City (pursuant to the requirements of Government Code
Section 53313.51 and other provisions of the Act and the Policy) concerning financial and other
obligations and responsibilities related to the formation of the Community Facilities District and
the Improvements to be financed by the Community Facilities District, when and if formed, to the
extent funds are available, and to set forth the conditions upon which (1) the Community
Facilities District will reimburse Developer or its designee for (a) the amounts advanced by
Developer to form the Community Facilities District and (b) the cost of the City Improvements
constructed by or on behalf of the Developer and (2) the Community Facilities District will fund
the City Fee Facility Improvements thereby satisfying corresponding City fees; and (3) the
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Community Facilities District will also fund the Miscellaneous Improvements described in
Exhibit “C.”
NOW, THEREFORE, it is mutually agreed between the respective Parties as follows:
1. FEASIBILITY STUDY
The City has retained, at the Developer’s expense, the necessary consultants to analyze
the proposed formation of the CFD, including the special tax consultant, bond counsel, and
other consultants deemed necessary by the City. The Developer has advanced to the City a
sum of money for such costs, all or a part of which may be eligible for reimbursement from the
CFD in accordance with the Reimbursement Agreement dated as of September 1, 2021 (the
“Reimbursement Agreement”) between the Developer and the City.
2. SALE OF BONDS
2.1 City Policies. The City Council has adopted the Policy, setting forth the City’s
policies and procedures concerning the use of special district financing programs to finance the
Improvements. Pursuant to the Policy, the total annual amount of the special taxes to be
collected with respect to a parcel within the CFD and all other taxes and assessments which will
be collected with respect to such parcel from the secured tax roll must not exceed two percent
(2%) of the Fair Market Value (as defined in the Policy) of such parcel at the time of CFD
formation.
The Parties hereby agree that, unless waived by the City, at the time of issuance of the
Bonds, the ratio of the value of all parcels of property for which the Bonds are being issued to
the amount of outstanding community facilities district or assessment district bonds attributable
to such parcels (the “Value-to-Lien Ratio”) may not be less than four-to-one (4:1). Unless
waived by the City, the Fair Market Value of the property within the Community Facilities District
for purposes of determining the foregoing ratio will be determined based on the appraised value
of the property based on the appraisal made by an appraiser selected by the City with a
valuation date within three (3) months of the issuance of the Bonds, or, with respect to
developed projects (as determined in the sole discretion of the City) or issuance of refunding
bonds, the assessed value of the property, or some combination thereof. Subject to satisfaction
of the Policy and the requirements of this Agreement, the City shall use reasonable efforts to
issue and sell the Bonds in one or more series in an amount sufficient to fund the Improvements
in accordance with the schedule for development of the Developer Property. The ultimate
decision as to issuance and sizing lies in the sole legislative discretion of the City.
2.2 Security for Payment of Special Taxes.
(a) Concurrently with the issuance and sale of each series of the Bonds, the
owner of any land within the Community Facilities District which the City has determined, in its
sole discretion, to use in the sizing of such series of Bonds (the “Sizing Property”), together with
any Sizing Property owned by any affiliate (collectively, an “Account Party”), for which the
Maximum Special Taxes for the then-current fiscal year or the following fiscal year (as defined in
the Rate and Method of Apportionment of Special Tax for the Community Facilities District (the
“Rate and Method”) and such Special Tax referred to herein as the “Special Tax” or “Special
Taxes”), are equal to or exceed 20% of the aggregate Maximum Special Taxes authorized to be
levied on the Sizing Property in any of such fiscal years, shall deliver to the City either (i) a
renewable irrevocable instrument of credit from a financial institution (rated “A” or better, or
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otherwise approved by the City), in the form and upon the terms reasonably approved by the
City, or (ii) cash in-lieu thereof (a “Security”). The Security shall be in an amount equal to 200%
of the product of the maximum annual debt service on the Bonds proposed to be issued times a
fraction the numerator of which is the aggregate Maximum Special Taxes on the Sizing Property
in the then current fiscal year or the following fiscal year (whichever is greater), applicable to the
land owned by the Account Party and the denominator of which is the total Maximum Special
Taxes applicable to all of the Sizing Property in such fiscal year (the “Stated Amount”). The
Security shall be maintained by the Account Party in each fiscal year until terminated in
accordance with Section 2.2(c) below. While the Security is still required the Stated Amount of
such Security shall be reduced as set forth in a Certificate of Reduction or Termination (as
defined in Section 2.2(c) below).
The Security shall name the Fiscal Agent (as defined in Section 2.4 below) as a
beneficiary and shall provide that the Fiscal Agent may draw an amount equal to any
delinquencies in payment of semiannual installments of the Special Taxes levied on property
owned by the Account Party in the Community Facilities District. The total amount to be drawn
under the Security shall not exceed an amount equal to the Special Taxes owed by the Account
Party with respect to property within the Community Facilities District that is delinquent at the
time the draw is made. The amount drawn on the Security shall be applied in the same manner
and for the same purposes as the delinquent Special Taxes would have been applied; provided,
however the payment of a draw under the Security will not be deemed to cure the delinquency
in payment of the Special Taxes.
If, subsequent to a draw on the Security and prior to the satisfaction of any
reimbursements due to the institution providing the Security (the “Security Provider”) pursua nt to
this Agreement, the City receives payment of all or a portion of the delinquent Special Taxes or
the proceeds of a sale of delinquent real property pursuant to foreclosure proceedings
(“Delinquency Proceeds”) for a parcel for which the Security has been drawn, the Security
Provider (or its designee, which may be the Developer) shall be reimbursed for such draws to
the extent of Delinquency Proceeds net of the City’s costs of collection. The Security Provider
is intended by the Parties to be a third party beneficiary of this Section 2.2.
(b) The Security shall be renewed, or a substitute Security reasonably
satisfactory to the City (a “Substitute Security”) provided, not less than thirty (30) calendar days
prior to the expiration of the Security or Substitute Security then in effect. If the Account Party
provides a Substitute Security to the City, then the Fiscal Agent shall return any existing
Security on the effective date of the Substitute Security to the Security Provider.
If the Security is not renewed within thirty (30) days prior to its expiration date
and the requirements for release or termination of the Security as set forth in Section 2.2(c)
below have not then been met, the full amount of the Security may be drawn by the Fiscal Agent
and deposited in an account established under the Indenture (as hereinafter defined) or in such
account established with a financial institution selected by the City. Thereafter, amounts in such
account shall be held as security, and if Special Taxes owed by the Account Party with respect
to property within the Community Facilities District are not paid prior to delinquency, then such
amounts in such account may be applied by the City to pay the delinquent Special Taxes owed
by the Account Party with respect to such property on the same terms and conditions applicable
hereunder to draws on the Security.
At such time as the Security is renewed, or a Substitute Security is accepted by
the Fiscal Agent, or the requirement for the Security has been terminated pursuant to t his
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section, the City or its designee, shall release all amounts in the Security account to the Security
Provider (or its designee, which may be the Developer) within ten (10) calendar days from the
date of renewal or acceptance.
(c) Following the sale or transfer by the Account Party of any property to a
person other than the Account Party, or upon the prepayment of the Special Tax obligation for a
parcel owned by the Account Party, the Account Party shall notify the Community Facilities
District of such event, in writing, and, if requested by the Account Party, the Stated Amount of
the Security shall be reduced and be recalculated in accordance with this Section 2.2; provided,
however, that any costs associated with the recalculation and reduction shall be borne by the
Account Party. Subject to Section 2.2(d) below, the Stated Amount may be reduced to an
amount equal to 200% of the product of the maximum annual debt service on the outstanding
Bonds times a fraction the numerator of which is the aggregate Maximum Special Taxes
applicable to the Sizing Property owned by the Account Party and the denominator of which is
the total Maximum Special Taxes to all of the Sizing Property as of the date of calculation. The
Security shall be terminated when the Account Party has paid all Special Taxes owed by the
Account Party in the current fiscal year and the Sizing Property owned by the Account Party is
expected to be responsible for less than 20% of the Maximum Special Taxes in the next fiscal
year.
Reduction or termination of a Security shall occur automatically upon submission
to the Security Provider by the Fiscal Agent of a “Certificate of Reduction or Termination” upon
valuation of the Certificate of Reduction or Termination by the City. The City shall direct that the
Fiscal Agent deliver to the Security Provider such Certificate of Reduction or Termination
promptly upon receiving from the Account Party a certification which shall be made under
penalty of perjury and which shall indicate (i) the legal description of all Sizing Property owned
by the Account Party, and either (ii) a recalculation of the new Stated Amount that the Account
Party proposes be applicable to the Security or (iii) if termination of the Security is requested, a
statement that one of the requirements set forth in the preceding paragraph for termination of
the Security has been satisfied.
The Account Party shall notify the City of any events that will result in a reduction
of the Stated Amount of the Security and shall provide the City with verification of said events.
The Account Party may provide the Fiscal Agent with a Substitute Security in the reduced
amount, and the Fiscal Agent shall release and return to the Security Provider the Security then
in effect. The Parties expressly acknowledge that the Account Party’s failure to so notify the
City or to reduce the Security at the times prescribed herein shall in no way effect or invalidate
sale or transfer of property, or recordation of maps on property.
(d) If any Sizing Property is sold or transferred by an Account Party with the
result that the Sizing Property owned by the transferee, together with any of its affiliates
(collectively, a “Transferee”) is responsible for 20% or more of the aggregate Maximum Special
Taxes of all Sizing Property, a Security on the same terms specified in Section 2.2(a) above will
be furnished by Transferee with respect to all Sizing Property owned by such Transferee. Any
applicable purchase and sale agreement and/or escrow instructions shall notify the Transferee
of this Security requirement and obligate the Transferee to provide such Security, if applicable.
The Security of the Account Party will not be reduced to reflect the sale or transfer of such
Sizing Property until a Security is furnished by the Transferee and accepted by the Fiscal Agent.
The issuing financial institution and the form and terms of said Security will be subject to
reasonable prior approval by the City. All terms provided in this Section 2.2 are applicable to the
Transferee by replacing the term “Account Party” at each place where it occurs in each section
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with the term “Transferee.” Each provider of a Security for a Transferee shall be an express
third party beneficiary of the provisions of this Section 2.2.
Any costs related to the holding or maintaining the Security, including any fees of a fiscal
agent, trustee or other depository shall be borne by the Account Party.
2.3 Major Landowner Initial and Continuing Disclosure. An owner of land which is
responsible for twenty percent (20%) or more of the Maximum Special Taxes applicable to the
Sizing Property in the fiscal year in which the Bonds are issued or in the fiscal year following the
fiscal year in which the Bonds are issued (a “Major Landowner”) will be required to provide all
information regarding the development of its property, including the financing plan for such
development, which is necessary to ensure that the official statement for such Bonds complies
with the requirements of Rules 15c2-12 and 10b-5 of the Securities and Exchange Commission
and all other applicable federal and state securities laws. Additionally, Developer acknowledges
that, if it is a Major Landowner at the time of issuance of the Bonds, it will be necessary that
Developer enter into a continuing disclosure agreement to provide such continuing disclosure
pertaining to the development of the land owned by Developer within the CFD to assist in the
marketing of the Bonds.
2.4 Bond Issuance Parameters. The terms and conditions upon which each series of
the Bonds shall be issued and sold, the method of sale of the Bonds and the pricing of the
Bonds shall be determined solely by the City in its legislative discretion in conformance with the
Act, the Policy, and this Agreement. Each series of Bonds shall be issued with a term not to
exceed 35 years from the date of issuance of the Bonds, or such longer term as is then
permitted by law. The proceeds of the Bonds shall be used in the following priority to (1) fund a
reserve fund for the payment of principal and interest with respect to the Bonds in an amount
equal to the least of (i) ten percent (10%) of the total bond issue, (ii) maximum annual debt
service on Bonds, or (iii) 125% of average annual debt service; (2) fund capitalized interest
through the interest payment date on the Bonds for which Special Taxes are not available for
payment of debt service on the Bonds or such longer period as requested by the Developer and
approved by the City, subject to the Act; (3) reimburse the Developer or its designee pursuant to
Section 1 hereof for CFD formation costs advanced by the Developer which have not already
been reimbursed to the Developer from collected Special Tax; (4) pay for costs of issuance of
the Bonds including, without limitation, underwriter’s discount, bond counsel and disclosure
counsel fees, appraisal and special tax consultant fees, printing, fiscal agent fees, and
reasonable Developer legal and financial consultant costs; (5) pay for the costs of forming the
Community Facilities District; and (6) pay for the actual costs of the Improvements. The
Community Facilities District shall maintain records relating to the disbursements of proceeds of
the sale of the Bonds. The Indenture, Resolution or Fiscal Agent Agreement (hereinafter
“Indenture”) for the Bonds shall establish an acquisition and construction fund or improvement
fund (herein, the “Improvement Fund”) to be held by the fiscal agent (“Fiscal Agent”) into which
shall be deposited initially the proceeds of the Bonds net of the amount of proceeds required to
fund items (1) through (5) in the second preceding sentence. The Indenture shall also establish
separate accounts of the Improvement Fund designated the “City Improvements Account,” “City
Fee Facility Improvements Account,” and any Miscellaneous Improvement Account(s) for the
Miscellaneous Improvements described in Exhibit “C,” into which shall be deposited such
portions of the Improvement Fund as agreed by the Parties and directed by the City in writing at
or subsequent to the closing of the sale of the Bonds consistent with the following priorities:
(a) An amount sufficient to fund the reasonable, current estimated cost of the
City Fee Facility Improvements anticipated to be funded out of the Bonds being issued shall be
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deposited in the City Fee Facility Improvements Account (any Special Taxes levied in the CFD
and collected by the CFD remaining after the payment of administrative expenses of the CFD
and the reimbursement of the Developer for CFD formation costs pursuant to Section 1 hereof
shall be deposited into the City Fee Facility Improvements Account at the time of Bond
issuance, unless otherwise directed in writing by the Developer);
(b) If applicable, an amount to be agreed upon between Developer and the
CFD prior to the issuance of Bonds sufficient to fund the reasonable, current estimated costs of
the City Improvements shall be deposited, or later transferred, to the City Improvements
Account; and
(c) If applicable, an amount to be agreed upon between Developer and the
CFD prior to the issuance of Bonds sufficient to fund the reasonable, current estimated cost of
the Miscellaneous Improvements described in Exhibit “C” hereto, anticipated to be funded out
of the Bonds being issued shall be deposited, or later transferred, to the applicable
Miscellaneous Improvement Account(s).
Interest earned on moneys deposited in each of the City Fee Facility Improvements
Account, the City Improvements Account and the Miscellaneous Improvement Account(s) shall
remain in such accounts until such time as all of the Improvements have been funded.
Additionally, the Developer may direct the CFD to transfer excess moneys in any of the City Fee
Facility Improvements Account, the City Improvements Account or the Miscellaneous
Improvement Account(s) to another Account. The Indenture shall provide that amounts
remaining in the Improvement Fund after funding all proposed Improvements (such completion
of funding to be agreed by the City and the Developer) shall be deposited in the special tax fund
or bond service fund and be applied to pay debt service on the Bonds and/or to call Bonds in
advance of maturity.
3. ALLOCATION OF SPECIAL TAXES
Prior to the issuance of Bonds, the City Council of the City, acting as the legislative body
of the Community Facilities District, may levy Special Taxes on all parcels classified as
Developed Property pursuant to the Rate and Method. Such Special Taxes collected by the
City shall first be applied to fund annual administrative expenses of the Community Facilities
District and then to fund Improvements in the same manner as the proceeds of Bonds as set
forth herein. Upon sale and delivery of the Bonds, the City shall annually levy the Special Tax as
provided for in documents pursuant to which the Bonds were issued. Following the issuance of
the last series of Bonds, the City shall have no obligation to levy Special Taxes to reimburse the
Developer for the costs of any Improvements not paid for from Bond proceeds. The entire
amount of any Special Tax levied by the Community Facilities District to repay the Bonds and
recover costs and expenses allowable pursuant to Government Code Section 53313.5, shall be
allocated to the Community Facilities District.
4. NOTICE OF SPECIAL TAX
Developer shall provide written notice to all potential initial purchasers of lots advising of
the special tax obligation applicable to the Developer Property in the form required by
Section 53341.5 of the Government Code.
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5. DESIGN PLANS AND SPECIFICATIONS
The requirements of this Section shall not apply to any City Improvement that was
complete (as determined by the City Council) prior to the adoption by the City Council of the
resolution forming the CFD, but they shall apply to all other City Improvements. All plans,
specifications and bid documents for the City Improvements (“Plans”) constructed or to be
constructed by the Developer shall be prepared by the Developer at the Developer’s initial
expense, subject to approval by the applicable public agency. Costs for preparation of the
Plans will be eligible for reimbursement, conditioned upon the final approval of the applicable
public agency and the availability of funds. Reimbursement of costs for plan revisions will be
considered on a case by case basis. All such City Improvements shall be bid in accordance
with “public works” requirements of Sections 6 and 7 hereof to be eligible for reimbursement.
The Developer shall not award bids for construction, or commence or cause commencement of
construction, of a City Improvement until the Plans and bidding documents have been approved
by the City. The bid opening for City Improvements shall be coordinated with the City and take
place at the City’s facilities, with City personnel in attendance, for any City Improvements bid
after the execution of this Agreement.
6. CONSTRUCTION OF IMPROVEMENTS
The requirements of this Section shall not apply to any City Improvement that was
complete (as determined by the City Council) prior to the adoption by the City Council of the
resolution forming the CFD, but they shall apply to all other City Improvements.
6.1 General. Upon the approval of Plans for a City Improvement, the Developer will
provide for construction of such City Improvement in accordance with Sections 6 and 7 of this
Agreement. Sections 6 and 7 specify the requirements for construction of the City
Improvements that the City believes are necessary to ensure that such City Improvements are
constructed as if they had been constructed under the direction and supervision, or under the
authority of the City.
6.2 Construction. With respect to City Improvements, a qualified engineering firm
(the “Field Engineer”) shall be employed by the Developer to provide all field engineering
surveys determined to be necessary by the City’s inspection personnel. Field Engineer shall
promptly furnish to City a complete set of grade sheets listing all locations, offsets, etc., in
accordance with good engineering practices, and attendant data and reports resulting from Field
Engineer’s engineering surveys and/or proposed facility design changes. City shall have the
right, but not the obligation, to review, evaluate and analyze whether such results comply with
applicable specifications.
As necessary as determined by City, a full-time soil-testing firm, approved by City, shall
be employed by the Developer to conduct soil compaction testing and certification. The
Developer shall promptly furnish results of all such compaction testing to the City for its review,
evaluation and decision as to compliance with applicable specifications. In the event the
compaction is not in compliance with applicable specifications, the Developer shall be fully liable
and responsible for the costs of achieving compliance. A final report certifying all required
compaction in accordance with the specifications shall be a condition of final approval of
facilities.
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The costs of all surveying, testing and reports associated with the City Improvements
furnished and constructed by the Developer’s contractor(s) shall be eligible to be paid from
funds in the City Improvements Account.
The City shall not be responsible for conducting any environmental, archaeological,
biological, or cultural studies or any mitigation requirements that may be requested by
appropriate Federal, State, and/or local agencies. Any such work shall be paid for and
conducted by the Developer and reimbursed out of the City Improvements Account.
Should the Developer notify the City that the Developer is unable to complete such City
Improvement, the City shall have the right but not the obligation to require the Developer to
make an irrevocable offer of dedication to the City of the land owned by the Developer for the
City Improvement identified in the notice and to assume responsibility for the work to be
performed thereunder. In the event the City elects to assume the responsibility for any work on
a previously awarded contract as described in the preceding sentence, the following will occur:
(i) the Developer will make an irrevocable offer of dedication to the City of the land owned by the
Developer for such City Improvement identified in the notice; (ii) to the extent permitted by law
and the applicable contract, the Developer will assign all of the contracts for the work performed
to date on the City Improvement identified in the notice to the City, if requested to do so by the
City Manager; the City will use its best efforts to complete the City Improvement within a
reasonable time frame; and upon completion of the City Improvement, to the extent there are
Special Taxes or proceeds of the Bonds available following payment to the City for the costs of
completing such City Improvement, the Developer will be reimbursed for the lesser of the cost
or value of the previously unreimbursed satisfactory work performed or paid for by the
Developer. The cost of such work will be determined by taking the unreimbursed amounts
expended by the Developer under the contract(s) taken over by the City and deducting any
incremental cost incurred by the City to complete the work under the contracts in question.
Incremental cost shall be costs in excess of the sum of the original contract cost plus change
orders approved by the City.
7. PUBLIC WORKS REQUIREMENTS
7.1 City Requirements. In order that the City Improvements may be properly and
readily acquired by the City, the Developer shall comply with all of the following requirements
with respect to any such City Improvements to be acquired with funds in the City Improvements
Account and the Developer shall provide such proof to the City as the City may reasonably
require and at such intervals and in such form as the City may reasonably require, that the
following requirements have been satisfied as to all such City Improvements:
(a) The Developer shall prepare a bid package for review, comment and
approval by the City Manager or his designee (the “City Representative”) for any City
Improvements bid after the date of adoption by the City Council of the resolution forming the
CFD.
(b) For City Improvements bid after the date of adoption by the City Council
of the resolution forming the CFD, the Developer shall, after obtaining sealed bids for the
construction of the City Improvements in conformance with the procedures and requirements of
the City, submit to the City written evidence of such competitive bidding procedure, including
evidence of the means by which bids were solicited, a listing of all responsive bids and their
amounts, and the name or names of the contractor or contractors to whom the Developer
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proposes to award the contracts for such construction, which shall be the lowest responsible
bidder.
(c) The City Representative shall be invited to attend the bid opening for
such City Improvements bid after the date of adoption by the City Council of the resolution
forming the CFD. If unable to attend the bid opening, the City Representative shall approve or
disapprove of a contractor or contractors, in writing, within five (5) business days after receipt
from the Developer of the name or names of such contractor or contractors recommended by
the Developer. If the City Representative disapproves of any such contractor; the Developer
shall select the next lowest responsible bidder from the competitive bids received who is
acceptable to the City Representative.
(d) 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 City with respect to the
construction of its public works projects.
(e) The Developer shall submit faithful performance and payment bonds in
form and substance reasonably acceptable to the City with respect to the City Improvements.
(f) The Developer and its contractor and subcontractors shall be required to
provide proof of insurance coverage throughout the term of the construction of the City
Improvements, which they will construct in conformance with the City’s standard procedures
and requirements. The City’s insurance requirements are set out in Section 20 herein.
(g) The Developer and all such contractors shall comply with such other
requirements relating to the construction of the City Improvements which the City may impose
by written notification delivered to the Developer and each such contractor at the time either
prior to the receipt of bids by the Developer for the construction of such City Improvements or,
to the extent required as a result of changes in applicable laws, during the progress of
construction thereof; provided that such other requirements shall only be imposed to the extent
the City reasonably determines they are required in order to comply with applicable law. In
accordance with Section 7, the Developer 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.
(h) A “Change Order” is an order from the Developer to a contractor
authorizing a change in the work to be performed and a “Significant Change Order” is an order
from the Developer to a contractor authorizing a change in the work to be performed where
such Change Order is larger than 10% of the contract amount for such City Improvement. After
the effective date of this Agreement, the Developer shall receive comments from the City
Representative prior to the Developer’s approval of any Significant Change Order. The City
Representative shall comment on or deny the Significant Change Order request within fifteen
(15) business days of receipt of all necessary information. The City’s comments to a Significant
Change Order shall not be unreasonably delayed, conditioned or withheld. The Developer shall
not be entitled to be compensated for costs associated with a Significant Change Order that has
not been approved by the City Representative.
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Developer shall provide proof to the City, at such intervals and in such form as the City
may reasonably require, that the foregoing requirements have been satisfied as to all of the City
Improvements which are funded through Bond proceeds.
8. INSPECTION; COMPLETION OF CONSTRUCTION
The requirements of this Section shall not apply to any City Improvement that was
complete (as determined by the City Council) prior to the adoption by the City Council of the
resolution forming the CFD, but they shall apply to all other City Improvements.
The City shall have primary responsibility for inspecting the City Improvements to assure
that the work is being accomplished in accordance with the Plans. Such inspection does not
include inspection for compliance with safety requirements by the Developer’s contractor(s).
The City’s personnel shall be granted access to each construction site at all reasonable times
for the purpose of accomplishing such inspection. Upon satisfaction of the City’s inspectors, the
Developer shall notify the City in writing that a City Improvement has been completed in
accordance with the Plans. Any actual costs reasonably incurred by the City for inspection not
previously paid by the Developer shall be reimbursed from funds in the City Improvements
Account.
Within three (3) business days of receipt of written notification from City inspectors that a
City Improvement has been completed in accordance with the Plans, the City Representative
shall notify the Developer in writing that such City Improvement has been satisfactorily
completed. Upon receiving such notification, the Developer shall file a Notice of Completion
with the County of Riverside Recorders Office, pursuant to the provisions of Section 3093 of the
Civil Code. The Developer shall furnish to the City a duplicate copy of each such Notice of
Completion showing thereon the date of filing with the County of Riverside (the “County”). City
will in turn file a notice with the County for acceptance.
9. LIENS
With respect to any City Improvement that was complete (as determined by the City
Council) prior to the adoption by the City Council of the resolution forming the CFD, prior to any
payment by the CFD to the Developer for such City Improvement, the Developer shall provide to
the City such evidence or proof as the City shall require that all persons, firms and corporations
supplying work, labor, materials, supplies and equipment for the construction of the City
Improvements have been paid, and that no claims of liens have been recorded by or on behalf
of any such person, firm or corporation. With respect to City Improvements, upon the earlier of
(i) receipt of all applicable lien releases, or (ii) expiration of the time for the recording of claim of
liens as prescribed by Sections 3115 and 3116 of the Civil Code the Developer shall provide to
the City such evidence or proof as the City shall require that all persons, firms and corporations
supplying work, labor, materials, supplies and equipment for the construction of the City
Improvements have been paid, and that no claims of liens have been recorded by or on behalf
of any such person, firm or corporation.
10. ACQUISITION; ACQUISITION PRICE; SOURCE OF FUNDS
The acquisition price of a City Improvement that was complete (as determined by the
City Council) prior to the adoption by the City Council of the resolution forming the CFD shall be
its fair market value, as determined by the City’s Assistant General Manager or his or her
designee, as of the date of acquisition. The City shall consider input and data provided by the
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Developer prior to determining the final fair market value. The Actual Cost (as defined below) of
the City Improvement shall be presumed to be its fair market value unless there is reasonable
evidence that a lower amount is the fair market value.
The costs eligible to be included in the acquisition price of a City Improvement that is not
described in the preceding paragraph (the “Actual Costs”) shall include:
(i) The actual hard costs for the construction of such City
Improvement as established by the City-approved construction contracts, Change Orders, and
approved Significant Change Orders, including costs of payment, performance and
maintenance bonds and insurance costs, pursuant to this Agreement;
(ii) The design and engineering costs of such City Improvement
including, without limitation, the costs incurred in preparing the Plans;
(iii) The costs of environmental evaluations and public agency permits
and approvals attributable to the City Improvement;
(iv) Costs incurred by the Developer for construction management
and supervision of such City Improvement, not to exceed five percent (5%) of the actual
construction cost;
(v) Professional costs associated with the City Improvement such as
engineering, inspection, construction staking, materials, testing and similar professional
services; and
(vi) Costs approved by the City in accordance with the Act of acquiring
any real property or interests therein required for the City Improvement including, without
limitation, temporary construction easements, temporary by-pass road and maintenance
easements.
Provided the Developer has complied with the requirements of this Agreement, the City
agrees to pay the acquisition price of a completed City Improvement to the Developer or its
designee within thirty (30) days after the Developer’s satisfaction of the preconditions to such
payment stated herein, but only to the extent there are sufficient funds available in the City
Improvements Account. Except in the case of a City Improvement described in the first
paragraph of this Section, the acquisition price to be paid from Bond proceeds for the
acquisition of a City Improvement by the City shall be the least of (1) the value of the City
Improvement; or (2) the total of the Actual Costs of the City Improvement (“Acquisition Price”).
The Actual Cost of the City Improvement shall be presumed to be its Acquisition Price unless
there is reasonable evidence that a lower amount is the actual value.
As a condition to the payment of the Acquisition Price, the ownership of the completed
City Improvement shall be transferred to the City by grant deed, bill of sale or such other
documentation as such public agency may require free and clear of all taxes, liens,
encumbrances, and assessments, but subject to any exceptions determined by the City to not
interfere with the actual or intended use of the land or interest therein (including the lien of a
community facilities district so long as the subject property is exempt from taxation or is
otherwise not taxable by such community facilities district). Upon the transfer of ownership of
City Improvements or any portion thereof to the City, the City shall be responsible for the
maintenance of such City Improvements or the portion transferred. Notwithstanding the
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foregoing, the Acquisition Price of a City Improvement may be paid prior to transfer of
ownership and acceptance of the City Improvement if it is substantially completed at the time of
payment. The City Improvement shall be considered “substantially complete” when it has been
reasonably determined by the City to be usable, subject to final completion of such items as the
final lift or any other items not essential to the primary use or operation of the City Improvement.
For purposes of determining the Acquisition Price to be paid by the Community Facilities
District for the acquisition of the City Improvements by the City (other than City Improvements
described in the first paragraph of this Section), the value of such City Improvements shall
include the construction costs specified in the City-approved contracts, Change Orders, and
City-approved Significant Change Orders conforming to Section 7, as hereinbefore specified.
City approval is a condition prior to initiation of contract work for City Im provements bid after the
effective date of this Agreement. However, if the City reasonably determines that the additional
Actual Costs are excessive and that the value of the City Improvements is less than the total
amount of such Actual Costs and such construction costs, the price to be paid for the acquisition
of the City Improvements shall be the value thereof as determined by the Engineer, subject,
however, to the Developer’s right to appeal to the City Council.
Upon completion of the construction of a City Improvement, the Developer shall deliver
or cause to be delivered to the City a Disbursement Request Form in substantially the form of
Exhibit “D,” attached hereto, copies of the contract(s) with the contractor(s) who have
constructed the City Improvement and other relevant documentation with regard to the
payments made to such contractor(s) and each of them for the construction of the City
Improvement, documentation evidencing payment of prevailing wages, and shall also provide to
the City invoices and purchase orders with respect to all equipment, materials and labor
purchased for the construction of the City Improvements. The City shall require the Engineer to
complete its determination of the value of the City Improvements as promptly as is reasona bly
possible.
Notwithstanding the preceding provisions of this Section, the source of funds for the
acquisition of the City Improvements or any portion thereof shall be funds in the City
Improvements Account. If for any reason beyond the City’s control the Bonds are not sold, the
City shall not be required to acquire the City Improvements from the Developer, except to the
extent of funds from the collection of Special Taxes. In such event, the Developer shall
complete the design and construction and offer to the City ownership of such portions of the City
Improvements as are required to be constructed by the Developer as a condition to recordation
of subdivision maps for the Developer Property (but only at such times as required by such
condition), but need not construct any portion of the City Improvements which it is not so
required to construct. Reimbursement for these facilities would be made from the collection of
Special Taxes over time.
In addition to the foregoing, the City shall have the right to withhold payment for
acquisition of a City Improvement, if:
(a) the Developer or any of its affiliates is delinquent in the payment of any
Special Taxes levied by the Community Facilities District on properties then owned by the
Developer or any of its affiliates within the CFD, or
(b) the Developer is not then in substantial compliance with a condition or
obligation imposed upon the Developer Property by the City, including but not limited to,
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payment of all applicable fees, dedication of all applicable rights-of-way or other property and
construction requirements.
The City shall immediately provide written notice to the Developer of the decision to
withhold any such payment and shall specify the reason for such decision. If the payment is
withheld as a result of the delinquency in the payment of Special Taxes, the notice shall identify
the delinquent parcels and the amount of such delinquency. If the payment is withheld as a
result of substantial non-compliance with a condition or obligation, the notice shall specify such
condition or obligation and what action will be necessary by the Developer to substantially
comply with such condition or obligation. Upon receipt of evidence reasonably satisfactory to
the City that the Developer has paid the delinquent Special Taxes or complied with the subject
condition or obligation, the City shall forthwith make all payments which have been withheld
pursuant to the provisions of this Section.
11. EASEMENTS AND/OR FEE TITLE OWNERSHIP DEEDS
Without limiting the Developer’s rights to reimbursement for such grants pursuant to
Section 9 above, the Developer shall, at the time the City acquires the City Improvements as
provided in Section 9 hereof, grant or cause to be granted to the City, by appropriate
instruments prescribed by the City, all easements across private property and/or fee title
ownership deeds which may be reasonably necessary for the proper operation and
maintenance of such City Improvements, or any part thereof, but only to the extent located
within the Developer Property.
12. PERMITS
The Developer shall be responsible for obtaining all necessary construction permits from
the City and/or the County (as appropriate) covering construction and installation of the City
Improvement.
13. MAINTENANCE
Prior to the transfer of ownership of a City Improvement by the Developer to the City, as
provided in Section 9 hereof, the Developer shall be responsible for the maintenance thereof
and shall require its contractor(s) to repair all facilities damaged by any party other than the City,
prior to acceptance by the City and/or make corrections determined to be necessary by the
City’s inspection personnel. The City shall not be permitted to place any City Improvement in
service prior to acceptance of the same, unless the Developer otherwise consents in writing.
14. INSPECTION OF RECORDS
The City shall have the right to review all books and records of the Developer pertaining
to the costs and expenses incurred by the Developer for the design and construction of the City
Improvements during normal business hours by making arrangements with the Developer. The
Developer shall have the right to review all books and records of the City pertaining to costs and
expenses incurred by the City for services of the Engineer by making arrangements with the
City.
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15. OWNERSHIP OF IMPROVEMENTS
Notwithstanding the fact that some or all of the City Improvements may be constructed in
dedicated street rights-of-way or on property which has been or will be dedicated to the City,
each City Improvement shall be and remain the property of the Developer until acquired by the
City as provided in this Agreement.
16. MATERIALS AND WORKMANSHIP WARRANTY
The requirements of this Section shall not apply to any City Improvement that was
complete (as determined by the City Council) prior to the adoption by the City Council of the
resolution forming the CFD, but they shall apply to all other City Improvements.
Upon the completion of the acquisition of a City Improvement by the City, the
performance bond related to such individual City Improvement provided by the Developer
pursuant to Section 7.1(e) hereof, shall be reduced by 90%, and the remaining 10% shall serve
as a maintenance bond to guarantee that such City Improvement will be free from defects d ue
to faulty workmanship or materials for a period of one year.
17. CITY FEE FACILITY IMPROVEMENTS
The Developer may be required pursuant to the conditions of development or the fee
ordinance to pay certain City fees (the “City Fees”) relating to the City Fee Facility
Improvements prior to the availability of proceeds of the Bonds to pay for such City Fee Facility
Improvements. In the event such City Fees are paid prior to the availability of Bond proceeds,
the amounts paid to the City shall be deemed to be deposits (each a “Deposit”) that are subject
to refund by the City to the Developer in accordance with this Agreement. The City shall place
each Deposit in a capital facilities account(s). If the Developer has made any Deposits to the
City, then following deposit of Bond proceeds in the City Fee Facility Improvements Account,
the City shall return to the Developer, from the capital account in which the Deposits were
deposited the Deposits not previously returned, without interest or other earnings thereon. The
City shall be so obligated to return such Deposits only to the extent that an equivalent amount of
the Deposits to be returned is deposited in the City Fee Facility Improvements Account from
Bond proceeds or Special Tax collections prior to the issuance of Bonds.
Bond proceeds used to finance City Fee Facility Improvements which relate to the City
Fees shall be allocated first for return of all Deposits prior to being allocated to the payment of
City Fees not previously deposited by the Developer. Any Deposits that have not been returned
to the Developer at the time it is determined that there will be no further Bond proceeds
available (i.e. the final series of Bonds to finance the Improvements have been issued) shall be
retained by the City and may be used for the purposes for which the City Fee was required, and
the unrefunded Deposits shall constitute full and final payment for such City Fees, without any
increase of any kind.
18. MISCELLANEOUS IMPROVEMENTS
Improvements unrelated to the City Improvements and the City Fee Facility
Improvements are described in Exhibit “C” attached hereto. The amounts deposited in the
applicable Miscellaneous Improvement Account(s), if any, will be disbursed for the acquisition or
construction of Miscellaneous Improvements in accordance with the provisions in the applicable
Joint Community Facilities Agreement. Any amounts in the applicable Miscellaneous
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Improvement Account(s) shall be disbursed at the written direction of the City upon Developer’s
submittal of a payment request which will be based upon applicable entity’s payment request
form as provided for in the applicable Joint Community Facilities Agreement. Upon receipt of
such payment request, the City shall submit a written requisition for payment of the requested
amount to the Fiscal Agent for the Bonds, who shall directly pay the amount requested to the
applicable entity.
19. INDEPENDENT CONTRACTOR
In performing this Agreement, Developer is an independent contractor and not the agent
of the City. The City shall not have any responsibility for payment to any contractor or supplier
of Developer. It is not intended by the Parties that this Agreement create a partnership or joint
venture among them and this Agreement shall not otherwise be construed.
20. INDEMNIFICATION
Developer shall assume the defense of, indemnify and save harmless, the City, its
officers, employees and agents, and the Community Facilities District, its officers, employees
and agents, from and against all actions, damages, claims, losses or expenses of every type
and description to which they may be subject or put, by reason of, or resulting from the
Developer’s performance of its obligations under this Agreement and the construction of the City
Improvements and the Miscellaneous Improvements, the failure of the Developer to provide
notice of the Special Tax to be levied by the Community Facilities District pursuant to
Section 53341.5 of the Act (but only if the Developer is required by law to provide such notice),
or arising out of any alleged misstatements of fact or alleged omission of a material fact made
by the Developer, its officers, directors, employees or agents to the City, the Community
Facilities District, the underwriter of the Bonds and its counsel, the appraiser, the special tax
consultant, the market absorption consultant or bond counsel regarding the Developer, its
proposed developments, its property ownership, and any contractual arrangement it may enter
into in a disclosure document describing the Community Facilities District and the risks relating
to the Bonds. No provision of this Agreement shall in any way limit the extent of Developer’s
responsibility for payment of damages resulting from the operations of Developer and its
contractors; provided, however that Developer shall not be required to assume the defense or
indemnify and save harmless any person or entity as to actions, damages, claims, losses or
expenses resulting from the breach of this Agreement, the willful misconduct of such person or
entity or their officers, agents, consultants or employees.
21. INSURANCE REQUIREMENTS
For City Improvements bid after the effective date of this Agreement, neither the
Developer nor its contractor shall commence work on such City Improvement under this
Agreement prior to obtaining insurance with a company or companies acceptable to the City,
nor shall the Developer’s contractor allow any subcontractor to commence work on its
subcontract until all insurance required of the subcontractor has been obtained.
The Developer shall during the life of this Agreement, notify the City in writing of any
incident giving rise to any potential bodily injury or property damage claim and any resultant
settlements, whether in conjunction with this or any other project which may affect the limits of
the required coverage, as soon as is reasonable and practical.
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22. CONFLICT WITH OTHER AGREEMENTS
Except as specifically provided herein, nothing contained herein shall be construed as
releasing Developer from any condition of development or requirement imposed by any other
agreement with City. In the event of a conflicting provision, such other agreement shall prevail
unless such conflicting provision is specifically waived or modified in writing by City.
23. TERMINATION
The provisions of this Agreement related to the acquisition and financing of the
Improvements shall terminate and be of no further force or effect if the first series of Bonds for
the CFD are not sold within ten years from the date of this Agreement unless extended by
agreement of all the Parties. If the City is unable to sell the first series of Bonds for the CFD
after diligent, commercially reasonable efforts to do so, this Agreement shall terminate and be of
no further force and effect; provided, however, in such event, any collected Special Taxes
remaining after the payment of administrative expenses of the CFD and reimbursement to the
Developer of CFD formation costs shall be used to pay for Facilities in accordance with this
Agreement and Developer shall receive a credit against City Fees otherwise payable to City in
the amount so used to pay for City Fee Facility Improvements.
24. 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 (72) hours following deposit of the same in any United States Post Office in
California, registered or certified, postage prepaid. Any notice to the Community Facilities
District or the City shall be addressed to City of Menifee, 29844 Haun Road, Menifee, CA
92530, Attention: Deputy City Manager. Any notice to Developer shall be addressed to
Meritage Homes of California, Inc., 5 Peters Canyon Road, Suite 310, Irvine CA 92606,
Attention: _______.
Each Party may change its address for delivery of notice by delivering written notice of
such change of address to the other Party hereto.
25. NO GIFT OR WAIVER
25.1 No Gift or Waiver for City Improvements. The Developer and the City
acknowledge that:
(a) The Developer or its predecessor may have constructed or may be
constructing City Improvements before funds that will be used to acquire them are available with
the expectation that the Developer will be reimbursed for such City Improvements to the extent
and in the manner set forth in this Agreement.
(b) The City may inspect City Improvements and process Disbursement
Request Forms even if funds from the proceeds of Bonds available at the time of such
inspection and processing do not exist or are not then sufficient to satisfy the Disbursement
Request in full.
(c) The Developer may convey City Improvements to the City and the City
may accept such City Improvements even if funds from the proceeds of Bonds available at the
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time of such conveyance and acceptance do not exist or are not then sufficient to satisfy the
Disbursement Request in full.
(d) If the City accepts City Improvements before a Disbursement Request is
paid in full, the unpaid balance of the Disbursement Request will be paid from time to time, in
any number of installments and irrespective of the length of time payment is deferred, as funds
from the proceeds of Bonds become available.
(e) The Developer’s conveyance or dedication of City Improvements to the
City before the availability of funds from the proceeds of Bonds to acquire the City
Improvements is not and shall not be deemed, a gift or a waiver of the Developer’s right to
payment of the purchase price of such City Improvements pursuant to this Agreement.
25.2 No Gift or Waiver for City Fees. The Developer and the City acknowledge that:
(a) Prior to the availability of funds from the proceeds of Bonds, the
Developer or its predecessor may have been or may be required to deposit funds to assure
payment of applicable City Fees of the City.
(b) The Developer or its predecessor has deposited or will be depositing
such funds with the expectation that the Developer will be reimbursed for these Deposits to the
extent and in the manner set forth in this Agreement.
(c) The reimbursement of such Deposits pursuant to Section 16 of this
Agreement may occur from time to time, in any number of installments and irrespective of the
length of time payment is deferred, as funds become available.
(d) The Developer’s deposit of such funds to the City before the availability of
funds to reimburse the Developer is not, and shall not be deemed, a gift or a waiver of the
Developer’s right to reimbursement of such Deposits pursuant to this Agreement.
26. GENERAL PROVISIONS
26.1 Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the City and the Developer and their respective heirs, executors, legal
representatives, successors, and authorized assigns.
26.2 Amendment. This Agreement may be amended at any time but only in writing
signed by each Party hereto.
26.3 Entire Agreement. This Agreement, and the agreements referenced herein,
contains the entire understanding and 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. There are no oral or written
representations, understanding, undertakings or agreements which are not contained or
expressly referred to herein, and any such representations, understandings or agreements are
superseded by this Agreement. Failure by a Party to insist upon the strict performance of any of
the provisions of this Agreement by the other Parties 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 Parties with the terms of this Agreement
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thereafter. This Agreement shall be binding upon, and enforceable by and against the
Community Facilities District upon the establishment of the Community Facilities District.
26.4 Exhibits. All exhibits attached hereto are incorporated into this Agreement by
reference.
26.5 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.
26.6 Waiver. Failure by a Party to insist upon the strict performance of any of the
provisions of this Agreement by the other Parties 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 Parties with the terms of this Agreement
thereafter.
26.7 No Third Party Beneficiaries. Except as provided explicitly in this Agreement, no
person or entity shall be deemed to be a third party beneficiary hereof, and nothing in this
Agreement (either express or implied) is intended to confer upon any person or entity, other
than the City, the Community Facilities District, the Developer, and the Security Provider (and
their respective successors and assigns), any rights, remedies, obligations or liabilities under or
by reason of this Agreement.
26.8 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.
26.9 Assignment. Developer may assign all or any of its rights pursuant to this
Agreement to a purchaser of all or any portion of the Developer Property. Such a purchaser
and assignee shall, as a condition to taking an assignment of such rights, enter into an
assignment and assumption agreement with the City and Developer, in a form reasonably
acceptable to Developer and the City, whereby such rights assigned are specified and such
purchaser agrees, except as may be otherwise specifically provided therein, to assume the
obligations of Developer pursuant to this Agreement and to be bound thereby. A company that
acquires all of the assets of the Developer, including ownership of the Developer itself, shall be
deemed a successor and shall not require an assignment or assumption agreement to be bound
by, and enjoy the benefits of, this Agreement.
26.10 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.
26.11 Construction of Agreement. This Agreement has been reviewed by legal counsel
for both the City and Developer and shall be deemed for all purposes to have been jointly
drafted by the City and Developer. No presumption or rule that ambiguities shall be construed
against the drafting Party shall apply to the interpretation or enforcement of this Agreement.
26.12 Attorneys’ Fees. In the event of any action or proceeding, including an arbitration
or a reference pursuant to Section 638 et seq., of the Code of Civil Procedure brought by any
Party against any other under this Agreement, the prevailing Party shall be entitled to recover its
actual attorneys’ fees and all fees, costs and expenses incurred for prosecution, defense,
consultation, or advice in such action or proceeding. In addition to the foregoing, the prevailing
Party shall be entitled to its actual attorneys’ fees and all fees, costs and expenses incurred in
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any post-judgment proceedings to collect or enforce the judgment. This provision is separate
and several and shall survive the merger of this Agreement into any judgment on this
Agreement.
26.13 Venue and Forum. 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
Riverside, State of California, and the Parties waive all provisions of law providing for t he filing
removal or change of venue to any other Court.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and
year written below.
DATED: November 3, 2021
CITY OF MENIFEE, a political subdivision of
the State of California
By:
Armando G. Villa, City Manager
ATTEST:
By:
Sarah Manwaring, City Clerk
APPROVED AS TO FORM:
CITY ATTORNEY FOR THE CITY OF
MENIFEE
By:
Jeffrey T. Melching, City Attorney
MERITAGE HOMES OF CALIFORNIA, INC.,
a California corporation
By:
Name:
Title:
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LIST OF EXHIBITS
EXHIBIT A - DESCRIPTION OF DEVELOPER PROPERTY
EXHIBIT B - DESCRIPTION OF COST ESTIMATES
EXHIBIT C - MISCELLANEOUS IMPROVEMENTS
EXHIBIT D - DISBURSEMENT REQUEST FORM
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EXHIBIT A
DESCRIPTION OF DEVELOPER PROPERTY
Real property in the City of Menifee, County of Riverside, State of California, described as
follows:
Assessor Parcel No. (as set forth in the County of Riverside Assessor’s Fiscal Year 2020-21
Roll):
372-160-006
372-160-007
372-160-008
372-160-013
372-190-003
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EXHIBIT B
DESCRIPTION OF COST ESTIMATES OF THE IMPROVEMENTS (1)
I. CITY FEE FACILITY IMPROVEMENTS.
Estimated Cost of the City Fee Facility Improvements
Description Estimated Cost
Law Enforcement $ 40,625
Fire Facilities 107,450
Circulation 817,250
Storm Drainage 400,050
General Government 178,675
Public Use Facilities 26,950
Parks – Land Acquisition 404,950
Parks – Improvements 115,675
City Projects 337,295
Total City Fees Facility Improvements $ 2,428,720
II. CITY IMPROVEMENTS.
Those facilities constructed by or on behalf of the Developer and needed by
City in order to provide services to the Developer Property, including the following:
Description Estimated Cost
Offsite Landscaping (Scott & Linderberger) $ 524,482
Offsite Streets (Scott Road) 1,100,940
Park 977,027
Total City Improvements $ 2,602,449
(1) Amounts are estimates and subject to change. The Acquisition Price will be funded
with Bond proceeds.
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EXHIBIT C
DESCRIPTION OF THE MISCELLANEOUS IMPROVEMENT
The construction, purchase, modification, expansion, rehabilitation and/or improvement
of (i) water and sewer facilities including the acquisition of capacity in the sewer system and/or
water system of Eastern Municipal Water District which are included in Eastern Municipal Water
District’s water and sewer capacity and connection fee programs (the “Water District Facilities”),
and (ii) interim and permanent school facilities of Menifee Union School District, including
classrooms, multi-purpose facilities, administration and auxiliary space at school facilities,
athletic fields, playgrounds and recreational facilities and improvements thereto, landscaping,
access roadways, drainage, sidewalks and gutters and utility lines, furniture, equipment and
technology, including technology upgrades and mobile devices and infrastructure therefore, with
a useful life of at least five (5) years at such school facilities, including such school facilities of
Menifee Union School District which are included in Menifee Union School District’s school fee
program (the “School Facilities” and together, with the Water Facilities, the “Facilities”), and all
appurtenances and appurtenant work in connection with the foregoing Facilities, including the
cost of engineering, planning, designing, materials testing, coordination, construction staking,
construction management and supervision for such Facilities.
Water District Facilities included in the Water District’s capacity and connection fee
programs used to finance expansion projects, exclusive of in-tract facilities constructed by a
property owner, but including and not limited to the following:
Description Estimated Cost
Sewer Financial Participation Charge $ 517,650
Sewer Treatment Plant Capacity Charge 1,054,725
Water Financial Participation Charge 977,200
Water Supply Development Fee 52,500
1” Meter Drop-In Fee 65,975
Irrigation Meter Fees 74,910
Irrigation Meter Drop-In Fee 1,461
Total Estimated Water District Facilities Fees $ 2,744,421
School Facilities included in the School District’s development fee programs used to
finance School Facilities, in approximately the following amount:
Estimated Cost of the School Facilities
Description Estimated Cost
School Fees $1,632,723
DocuSign Envelope ID: FD9298FF-3696-4C49-86C2-C65FBACFA9C1
D-1
4851-0985-4461v3/200299-0004
EXHIBIT D
CFD NO. 2021-2 OF THE CITY OF MENIFEE (SUMAC RIDGE)
DISBURSEMENT REQUEST FORM
1. Community Facilities District No. 2021-2 of City of Menifee (Sumac Ridge) (the
“CFD”) is hereby requested to pay from the ________________________ Account, or any
applicable account or sub-account thereof, established by the CFD in connection with its 20__
Special Tax Bonds (the “Bonds”) to City of Menifee (the “City”) as payee, the sum set forth
below:
$_____________________ (the Requested Amount”)
2. The Requested Amount represents the payment of City Fees for ___ lot(s) within
the boundaries of the CFD (the “Property”).
(Tract No. __________, Lot Nos. ________________).
Or, City Improvements as supported by attached documentation.
3. The Requested Amount is due and payable, has not formed the basis of any
prior request or disbursement.
4. The City, as payee, is hereby directing payment of the Requested Amount be
payable to Meritage Homes of California, Inc., a California corporation (the “Developer”),
pursuant to the wiring instructions attached hereto.
5. The Requested Amount is authorized and payable pursuant to the terms of the
certain Acquisition, Construction and Funding Agreement (the “Agreement”) between the City of
Menifee, acting for and on behalf of itself and the CFD and Developer.
6. Capitalized undefined terms used herein shall have the meaning ascribed to
them in the Agreement.
DocuSign Envelope ID: FD9298FF-3696-4C49-86C2-C65FBACFA9C1
D-2
4851-0985-4461v3/200299-0004
Dated: DEVELOPER:
MERITAGE HOMES OF CALIFORNIA, INC.,
a California corporation
By:
Name:
______________________________
_
Title:
______________________________
_
Dated: CITY OF MENIFEE
By:
Its:
[ATTACH WIRING INSTRUCTIONS]
DocuSign Envelope ID: FD9298FF-3696-4C49-86C2-C65FBACFA9C1
City Manager
November 3, 2021