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HomeMy WebLinkAbout20712 - RESOLUTIONS - 9/3/2003 RESOLUTION NO. 20712 OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, APPROVING THAT CERTAIN "WATER FACILITIES AGREEMENT" BETWEEN THE CITY AND DESERT WATER AGENCY; AUTHORIZING EXECUTION THEREOF BY APPROPRIATE CITY OFFICIALS; AND MAKING CERTAIN FINDINGS AND DETERMINATIONS IN CONNECTION THEREWITH ASSESSMENT DISTRICT NO. 161 (MOUNTAIN GATE) WHEREAS the City Council ("Council') of the City of Palm Springs ("City"), California, has taken proceedings pursuant to the Municipal Improvement Act of 1913 ("1913 Act") Division 12 of the Streets and Highways Code, for the formation of an assessment district, the levy and collection of assessments, and the issuance and sale of limited obligation improvement bonds (the `Bonds") pursuant to the Improvement Bond Act of 1915, Division 10 of the Streets and Highways Code; and WHEREAS, the assessment district is denominated "Assessment District No. 161" ("AD No. 161"); and WHEREAS, proceeds from the sale of Bonds shall be used, among other things, to ' pay for public improvements including to pay for water system improvements and connection fees required for the development of land within AD No. 161; and WHEREAS, the water facilities (and the connection fees relevant to such facilities) shall become the property of Desert Water Agency ("Desert") and it is required by said Sections 10109 and 10110 of the 1913 Act that the transfer of such facilities be pursuant to a written agreement between the City and Desert; and WHEREAS, that certain "Water Facilities Agreement," a copy of which is attached hereto as Exhibit A, is an agreement which meets the requirements of Sections 10109 and 10110; NOW THEREFORE BE IT RESOLVED by the City Council of the City of Palm Springs, California as follows: Section 1. That the recitals set forth hereinabove are true and correct in all respects. 1003/042/25430 v2 Resolution 20712 Page 2 Section 2. That said Water Facilities Agreement in substantially the form of Exhibit A hereto is hereby approved and the City Manager and City ' Clerk are hereby authorized and directed to execute the same for and on behalf of the City. ADOPTED this 3`d day of September, 2003. AYES: Members Hodges, Reller-Spurgin and Mayor pro tem Oden NOES: None ABSENT: Member Mills and Mayor Kleindienst ATTEST: CITY OF PALM SPRINGS, CALIFORNIA City Clerk City Manager REVIEWED & APPROVED AS TO FORM City Attorney 1003/042/25430 Q 2 ^ WATER FACILITIES AGREEMENT Between CITY OF PALM SPRINGS and ' DESERT WATER AGENCY relating to ASSESSMENT DISTRICT NO. 161 (MOUNTAIN GATE) OF THE CITY OF PALM SPRINGS 1 10031042125185 v4 ' WATER FACILITIES AGREEMENT TIES WATER FACILITIES AGREEMENT (the "Agreement") is entered into' effective as of the 1" day of September, 2003, by and between the CITY OF PALM SPRINGS, a municipal corporation ("City), and DESERT WATER AGENCY, a public agency ("Desert"), and relates to the formation by the City of a special assessment district to be known as "Assessment District No. 161 (Mountain Gate) of the City of Palm Springs" ("AD. No. 161") for the purpose of financing certain public facilities and equipment, including water facilities (the "Facilities") to be acquired by Desert from _proceeds of bonds issued by the City. RECITALS: A. The-property depicted in Exhibit A hereto (the "Property") which is located in the City of Palm Springs, State of California, constitutes the land within the boundaries of A.D. No. 161. MOUNTAIN GATE PALM SPRINGS VENTURES,LLC, a Delaware corporation ("Property Owner") is the owner of the Property. B. The City has primary responsibility for the formation and administration of A.D. No. 161. C. On June 11, 2003, the City Council of the City of Palm Springs (the "City Council") adopted Resolution No. 20623 declaring its intention to form and establish A.D. No. 161 and to issue bonded indebtedness of A.D. No. 161 (the"Bonds") pursuant to the provisions of the Municipal Improvement Act of 1913, Chapter 7 of Division 12 of the California Streets and Highways Code and the Improvement Bond Act of 1915, Division 10 of said Code (commencing with Sections 10,000 and 8000 of said Code, respectively) (collectively, the"Act"). D. On July 8, 2003 for Unit No. 1 and August 5, 2003 for Unit No. 2, the Property Owner and Desert entered into the Agreements (Developer Installed Water and/or Sanitary Sewer Facilities) (the "Developer Agreements") wherein the Property Owner agreed to construct and install the Facilities and upon acceptance of such Facilities by Desert, title to the Facilities will vest in Desert. E. Desert has completed its analysis of the Facilities and has approved all plans and specifications in connection with the Facilities, the Developer Agreements and the engineer's report. F. The parties hereto find and determine that the residents residing within the boundaries of Desert and the City will be specially benefited by the construction and/or acquisition of the Facilities and that this Agreement,is beneficial to the interests of such residents. G. This Agreement constitutes a joint community facilities agreement, within the, meaning of Sections 10109 and 10110 of the Code, by and between Desert and the /I 6b 1003/042125185 A City, pursuant to which the City will be authorized to finance the construction and/or acquisition of the Facilities with the proceeds of the Bonds. As authorized by Section 10109 and 10110 of the Code, responsibility for constructing, providing for and operating the Facilities is delegated to City to the extent set forth herein. In addition to the Facilities, certain facilities to be owned and operated by the City are expected to be funded with proceeds of the Bonds. H. Desert finds and determines that, to the extent funds are made available to Desert pursuant to this Agreement, the Property will be credited an equal amount against Desert fees due and owing under the Developer Agreements, or to become due and owing, in connection with the development of the Property. AGREEMENT 1. Recitals. Each of the above recitals is incorporated herein and is true and correct. 2. Sale of Bonds and Use of Proceeds. Upon formation of A.D. No. 161, the City Council may, in its sole discretion, finance the Facilities and the payment of connection fees to be paid to Desert by issuing the Bonds in one or more series. To the . extent that the City Council determines, in its sole discretion, that Bond proceeds are ' available to finance the payment of connection fees to Desert, the City Council shall notify Desert of the amount of such Bond proceeds reserved for that purpose. As proceeds of the Bonds are transferred to Desert as described in Section 3 below, the Property with respect to which such transfer was made shall receive a credit in the amount transferred against the payment of water connection fees, as applicable. Nothing herein shall supersede the obligation of an owner of the Property to pay all water connection fees to Desert when due. The purpose of this Agreement is to provide a mechanism by which the City may issue the Bonds to provide a source of funds to finance the payment of water connection'fees or as reimbursement of payment of water connection fees under the Developer Agreements. In the event that Bond proceeds, including investment earnings thereon, are not available to satisfy the obligation, then the Property Owner shall remain obligated to pay water connection fees to Desert as a condition of receiving water service to the Property. 3. Disbursements. (a) Bond proceeds determined by the City to be available for the payment of Desert's connection fees shall be held by the City in a special fund (the "Water Facilities Account of the Acquisition and Construction Fund"). (b) The City shall make disbursements from the Water Facilities Account of the Acquisition and Construction Fund upon request of Desert and the Property Owner in the Form of Exhibit B hereto and made in accordance with the terms of this Agreement. (c) Desert agrees that prior to requesting payment it shall review the number of water service connections to provide water service to the Property and shall / �� b 1003/04212518S v4 calculate the amount of the connection fees to be paid for providing water service to the Property. Desert agrees that 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) Following the funding of the Water Facilities Account of the Acquisition and Construction Fund, Desert and Property Owner may submit'a request for payment, in the form attached hereto as Exhibit B, for (a) disbursement to Desert or Property Owner of Bond proceeds for the payment of Desert's connection fees for providing water service to the Property or (b) reimbursement for connection fees paid in connection with the Facilities pursuant to the Developer Agreements prior to the availability of the Bonds, which request shall be signed by an authorized officer of Desert and Property Owner. Upon receipt of an approved payment request completed in accordance with the terms of this Agreement, the City shall wire transfer (or pay in another mutually acceptable manner) to Desert or Property Owner, as requested such requested funds to the extent that Bond proceeds are available for such purpose. 4. Construction. Property Owner will complete the design of the Facilities and the plans and specifications for construction of the Facilities and will be responsible for constructing the Facilities in accordance with the terms of the Developer Agreements. ' Upon completion of construction according to the Plans and Specifications approved by Desert, Property Owner will convey the Facilities to Desert and Desert will accept the Facilities. The parties hereto expect the Facilities to be installed and completed by July, 2004. 5. Ownership of Facilities. Upon completion and acceptance of the Facilities by Desert, title to the Facilities shall vest in Desert and constitute part of its system. Desert shall use, operate, maintain and manage the Facilities. 6. Indemnification. .. The City shall assume the defense of, indemnify and save harmless, Desert, 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 the City with respect to this Agreement and the issuance of the Bonds; provided, however, that the 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 agents or employees. Desert shall assume the defense of, indemnify and save harmless, the 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, or resulting from, any act or omission of Desert with respect to this Agreement; provided, however, that Desert 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 agents or employees. 7. Amendment. This Agreement may be amended at any tune but only in writing signed by each party hereto. / 1003/042/25185 v4 q Page s S. 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. 9. 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-tow hours following deposit of the same in any United States Post Office in California, registered or certified, postage prepaid, addressed as follows: City: City of Palm Springs 3200 E. Tahquitz Canyon Way Palm Springs, California 92262 Facsimile: (760) 323-8207 Attention: City Manager Desert: Desert Water Agency 1200 Gene.Autry Trail South P.O. Box 1.710 Palm Springs, California 92263 ' Facsimile: (760) 325-6505 Attention: General Manager 10. Exhibits. All exhibits attached hereto are incorporated into this Agreement by reference. 11. 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. 12. Governing Law, This Agreement and any dispute arising hereunder shall be governed by and interpreted in accordance with the laws of the State of California. , 13. 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. 14. No Third Party Beneficiaries. No person or entity other than the Property Owner (and their respective successors and assigns) 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 Desert, the City, and the Property Owner (and their respective successors and assigns), any rights, remedies, obligations or liabilities under or by reason of this Agreement. 1003/042/25185 v4 4 15. 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. 16. 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. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year written above. CITY OF PALM SPRINGS David H. Ready, City Manager ATTEST: By: Clerk of the City of Palm Springs DESERT WATER AGENCY ' Dan Ainsworth, General Manager ATTEST: By: Secretary of the Board of Directors ACKNOWLEDGED AND AGREED TO BY: MOUNTAIN GATE PALM SPRINGS VENTURES, LLC, a Delaware corporation By: President By: Vice President of Finance 10031042/25185 A S EXHIBIT A THE PROPERTY The property included in A.D. No. 161 is described as: 1. Assessor Parcel No. 669-340-001-9 (Tract No. 30963-2 and Tract No. 30963-3 2. Assessor Parcel No. 669-371-002-5 (Tract No. 30963-1) 1�91D 1003/042/25185 A A-1 Resolution 20712 Page 11 . Sequence No. SA# '.' EXHIBIT B DISBURSEMENT REQUEST FORM 1. The City of Palm Springs (the "City") is hereby requested to pay from the Water Facilities Account of the Acquisition and Construction Fund established in connection with its Series 2003 Limited Obligation Bonds (the "Bonds') to [Desert Water Agency("Desert")][Property Owner], as Payee, the sum set forth in 3 below. 2. The undersigned certifies that the amount requested hereunder is due and payable to Desert as fees for providing connections to provide water service to the Property located within Assessment District No. 161 (Mountain Gate) of the City of Palm Springs. The amount requested is due and payable, has not formed the basis of prior request or payment and is being made with respect to the connection of the property "described in paragraph 3 hereof to [Desert][Property Owner]. 3. Amount requested: $ For Lot Nos. 4. The amount set forth in 3 above is authorized and payable pursuant to the ' terms of the Water Facilities Agreement by and between the City and Desert dated as of 2003 (the "Agreement"). Capitalized terms not defined herein shall have the meaning set forth in the Agreement. DESERT WATER AGENCY MOUNTAIN GATE PALM SPRINGS VENTURES, LLC, a Delaware corporation By: By: Name: Name: Title: Title: Date: Date: cc: Finance Department 1003/042/25185 v4 R_1