HomeMy WebLinkAboutA5170 - PALM SPRINGS CLASSIC ESCENA DESERT WATER AGENCY (DWA) JOINT COMMUNITY FACILITIES Or PAL/. s4,a
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MEMORANDUM
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June 16, 2009
MEMO FOR THE RECORD
SUBJECT: Bankruptcy Action
tandsource Communities Development LLC
A5076 -- Palm Springs Classic LLC, Fscena MOU
A5086 — Palm Springs Classic LLC, SIA FM 32233-1
A5087 — Palm Springs Classic LLC, SIA FM 32233-2
A5088 — Palm Springs Classic LLC, SIA FM 32233-3
A5089 — Palm Springs Classic LLC, SIA FM 32233-4
A5170 — Palm Springs Classic LLC, DWA Joint Community Facilities District
A5137 — Palm Springs Classic LLC, Deposit & Reimb Agreement (for CFD)
ALL THE DOCUMENTS WERE ONLY SCANNED ONCE
INTO APPLICATION EXTENDER.
To find the documents electronically go to A5076.
KEEP THIS PAGE ON TOP.
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PALM
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M E M 0 R A N D U M
June 8, 2009
MEMO FOR THE RECORD
SUBJECT: Bankruptcy Action
Landsource Communities Development LLC
A5076 — Palm Springs Classic LLC, Escena MOU
A5086 — Palm Springs Classic LLC, SIA FM 32233-1
A5087 — Palm Springs Classic LLC, SIA FM 32233-2
A5088 — palm Springs Classic LLC, SIA FM 32233-3
A5089 — Palm Springs Classic LLC, SIA FM 32233-4
A5170 — Palm Springs Classic LLC, DWA Joint Community Facilities District
A5137 — Palm Springs Classic LLC, Deposit & Reimb Agreement (for CFD)
ALL THE' DOCUMENTS WERE ONLY SCANNED ONCE
INTO APPLICATION EXTENDER.
To find the documents electronically go to A5076.
KEEP THIS PAGE ON TOP.
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June 1 , 2009
MEMO FOR THE RECORD
SUBJECT: Bankruptcy Action
Landsource Communities Development LLC
A5076 — Palm Springs Classic LLC, Escena MOU
A5086 -- Palm Springs Classic LLC, SIA FM 32233-1
A5087 — Palm Springs Classic LLC, SIA FM 32233-2
A5088 — Palm Springs Classic LLC, SIA FM 32233-3
A5089— Palm Springs Classic LLC, SIA FM 32233-4
VA5170— Palm Springs Classic LLC, DWA Joint Community Facilities District
A5137— Palm Springs Classic LLC, Deposit & Reimb Agreement (for CFD)
ALL THE DOCUMENTS WERE ONLY SCANNED ONCE
INTO APPLICATION EXTENDER.
To find the documents electronically go to A5076.
KEEP THIS PAGE ON TOP.
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May 13, 2009
MEMO FOR THE RECORD
SUBJECT: Bankruptcy Action
Landsource Communities Development LLC
A5076— Palm Springs Classic LLC, Escena MOU
A5086 — Palm Springs Classic LLC, SIA FM 32233-1
A5087 — Palm Springs Classic LLC, SIA FM 32233-2
A5088— Palm Springs Classic LLC, SIA FM 32233-3
A5089 — Palm Springs Classic LLC, SIA FM 32233-4
A5170 — Palm Springs Classic LLC, DWA Joint Community Facilities District
A5137 — Palm Springs Classic LLC, Deposit & Reimb Agreement (for CFD)
ALL THE DOCUMENTS WERE ONLY SCANNED ONCE
INTO APPLICATION EXTENDER.
To find the documents electronically go to A5076.
KEEP THIS PAGE ON TOP.
1kdh
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May 13, 2009
MEMO FOR THE RECORD
SUBJECT: Bankruptcy Action
Landsource Communities Development LLC
A5076-- Palm Springs Classic LLC, Escena MOU
A5086— Palm Springs Classic LLC, SIA FM 32233-1
A5087-- Palm Springs Classic LLC, SIA FM 32233-2
A5088— Palm Springs Classic LLC, SIA FM 32233-3
A5089 — Palm Springs Classic LLC, SIA FM 32233-4
A5170— Palm Springs Classic LLC, DWA Joint Community Facilities District
A5137 — Palm Springs Classic LLC, Deposit & Reimb Agreement (for CFD)
On Monday, May 11, 2009, I met with Diego Santana regarding the Bankruptcy Action
I
otices received. It was determined that no action is required at this time.
Documents received:
1. NOTICE OF FILING OF BLACKLINE VERSIONS OF (1) SECOND
AMENDED JOINT CHAPTER 11 PLAN OF REORGANIZATION FOR
LANDSOURCE COMMUNITY DEVELOPMENT LLC AND ITS AFFILIATED
DEBTORS AND (II) PROPOSED DISCLOSURE STATEMENT
2. PROPOSED DISCLOSURE STATEMENT PURSUANT TO SECTION
1125 OF THE BANKRUPTCY CODE FOR THE SECOND AMENDED JOINT
CHAPTER 11 PLAN OF REORGANIZATION FOR LANDSOURCE
COMMUNITY DEVELOPMENT LLC AND ITS AFFILIATED DEBTORS AND
PROPOSED BY BARCLAYS BANK PLC, AS ADMINISTRATIVE AGENT
UNDER THE SUPER-PRIORITY DEBTOR-]WROSS ESSI ON FIRST LIEN
CREDIT AGREEMENT
3. SECOND AMENDED JOINT CHAPTER 11 PLANS FOR
REORGANIZATION FOR LANDSOURCE COMMUNITIES DEVELOPMENT LLC
AND EACH OF ITS AFFILIATED DEBTORS PROPOSED BY BY BARCLAYS
BANK PLC, AS-ADMINISTRATIVE AGENT UNDER THE SUPER-PRIORITY
DEBTOR-IN-POSSESSION FIRST LIEN CREDIT AGREEMENT
The documents are tiled in A5076.
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cc: Diego Santana, Asst. City Attorney (w/o attachments)
Carol Templeton, Associate Engineer (w/o attachments)
Joint Community Facilities
Palm Springs Classic/DWA
AGREEMENT #A5170
Res 21415, 10-05-05
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JOINT COMMUNITY FACILITIES AGREEMENT
by and among
CITY OF PALM SPRINGS
and
PALM SPRINGS CLASSIC, LLC
and
DESERT WATER AGENCY
relating to
CITY OF PALM SPRINGS
COMMUNITY FACILITIES DISTRICT NO. 2005-2
(ESCENA)
01003.0080.40479v4
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JOINT COMMUNITY FACILITIES AGREEMENT
THIS JOINT COMMUNITY FACILITIES AGREEMENT (the "Agreement") is entered
into effective as of the 1st day of July, 2005, by and among CITY OF PALM SPRINGS, an
incorporated municipality ("City"), PALM SPRINGS CLASSIC LLC, a Delaware limited
liability company ("Property Owner"), and DESERT WATER AGENCY, a public agency
j organized and existing pursuant to Chapter 1069, Statutes 1961 ("DWA"), and relates to the
iproposed formation by City of a cominunity facilities district to be known as "City of Palm
Springs Community Facilities District No. 2005-2 (Escena) (the "CFD") for the purpose of,
among other things, financing certain facilities to be owned and operated by DWA from
proceeds of one or more series of bonds issued by the proposed CFD.
RECITALS:
A. The property described in Exhibit "A"hereto (the "Property") which is located in the
City of Palm Springs, County of Riverside, State of California, is proposed to constitute the land
within the boundaries of the CFD.
B. Property Owner intends to develop the Property for residential purposes and has
obtained or intends to obtain the necessary development approvals to construct approximately
1,158 single family residential units on the Property, as such development may be modified from
time to time (the "Project") pursuant to tract map number 32233 (excluding the Golf Course and
the Hotel sites).
C. Property Owner petitioned the City to form the CFD for the purpose of financing,
among other things, the acquisition and/or constriction of various public facilities to be owned
and operated by DWA as described in Exhibit "B"hereto, including certain public facilities to be
constructed by or on behalf of Property Owner and ultimately owned and operated by DWA (the
"DWA Facilities") and the payment of DWA's water service connection fees, capacity charges
and water frontage fees (collectively, the "Connection Fees") which become due as a condition
of obtaining domestic water service from DWA. Upon the construction of the DWA Facilities
by or on behalf of Property Owner and the inspection and acceptance thereof by DWA as
described herein, the DWA Facilities shall become part of the DWA system.
D. Property Owner has yet to determine whether it will finance any or all of the DWA
Facilities, or the payment of DWA's Connection Fees, with Bond Proceeds (defined below)
available for such purpose. The parties hereto acknowledge that the purpose of this Agreement
is to satisfy the requirements of the Act.
E. DWA and Properly Owner agree that any DWA Facilities to be constructed by
Property Owner shall be eligible for acquisition by DWA and the costs thereof shall be eligible
for reimbursement from Bond Proceeds pursuant to this Agreement.
F. In conjunction with the recording of the final subdivision map(s) for the Project, the
issuance of building permits for the constriction of homes within the Project and/or receipt of
01003 0080.40479v4
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water meters for such homes, Properly Owner, or its successors or assigns, may elect to deposit
the amount of DWA's Connection Fees before any Bond Proceeds are available. In such case,
j Property Owner shall be entitled to (i) recovery of such deposits and (ii) credit for payments
made to DWA from Bond Proceeds for DWA's Connection Fees which would otherwise be due
to DWA in conjunction with the Project, all as further described herein.
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G. In addition to the DWA Facilities, certain facilities to be owned and operated by City
(the "City Facilities") are expected to be funded fi-om proceeds of bonds issued by the proposed
CFD prior to the funding of DWA Facilities.
H. City will have sole discretion and responsibility for the formation and administration
of the CFD.
e I. The City Council of City (the "City Council") has, by adoption of Resolution No.
, on July 20, 2005, declared its intention to form and establish the CFD pursuant to
the provisions of the Act (defined below).
J. City is authorized by Section 53313.5 of the Act to assist in the financing of the
acquisition and/or construction of the DWA Facilities and the financing of the Connection Fees.
This Agreement constitutes a joint community facilities agreement, within the meaning of
Section 53316.2 of the Act, by and among DWA, Property Owner, and City, 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 DWA Facilities and to finance the Connection Fees. As authorized by
Section 53316.6 of the Act, responsibility for constructing, providing for and operating the DWA
Facilities is delegated to DWA.
K. The parties hereto find and determine that the residents residing within the boundaries
of DWA, City and the CFD will be benefited by the construction and/or acquisition of the City
Facilities and DWA Facilities and the financing of the Connection Fees 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:
I. Recitals. Each of the above recitals is incorporated herein and is true and correct.
2. Definitions. Unless the context clearly otherwise requires, the terns defined in
this Section shall, for all purposes of this Agreement, have the meanings herein specified.
(a) "Acquisition Price"means the amount to be paid out of Bond Proceeds for
DWA Facilities.
(b) "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.
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01003.0080.40479v4
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(c) "Actual Costs" with respect to the DWA Facilities includes: (i) the actual
hard construction costs including labor, materials and equipment costs, (ii) the costs incurred in
design, engineering and preparation of plans and specifications, (iii) the fees paid to consultants
and government agencies in connection with and for obtaining pennits, licenses or other required
governmental approvals, (iv) construction management fee of 5% of the costs described in clause
{i) above, (v) professional costs such as engineering, legal, accounting, inspection, construction
staking, materials testing and similar professional services, (vi) costs of payment, performance
of maintenance bonds, and insurance costs (including the costs of any title insurance), and
(vii) the value of any real property or interests therein that (1) are required for the construction of
the DWA Facility such as temporary construction easements, haul roads, etc. and (2) are required
to be conveyed with such DWA Facility in an amount equal to the fair market value of such real
property or interests therein.
(d) "Advances" means amounts deposited by Property Owner for DWA's
Connection Fees prior or subsequent to the issuance and sale of the series of Bonds which are
intended to finance such Connection Fees, all of and which are eligible for recovery from Bond
]Proceeds. The deposit by the Property Owner for such Connection Fees prior or subsequent to
the issuance of Bonds shall be made with the expectation of recovery from the proceeds of
Bonds (whenever such proceeds are available) and shall not be construed as a dedication or gift
of the Connection Fees, or a waiver of recovery of the costs of such Connection Fees.
(e) "Bond Proceeds" or "Proceeds of the Bonds" shall mean those net funds
generated by the sale of the Bonds and investment earnings thereon.
(f) "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.
(g) "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.
(h) "City Facilities" means those public improvements to be owned,
operated or maintained by the City identified in proceedings to form the CFD that are eligible to
be financed with Bond Proceeds.
(i) "Connection Fees" shall have the meaning set forth in Recital C, and shall
include the water connection fee (at approximately $2,285 per unit) and the water frontage fee
(in the approximate amount of$289,400).
0) "DWA Engineer" means the engineering firm or in-house personnel used
by DWA to determine the value of DWA Facilities to be acquired with Bond Proceeds.
(k) "DWA Facilities" means those water facilities listed on Exhibit `B"
hereto, which are eligible to be constructed by Property Owner, acquired by DWA and paid for
with Bond Proceeds.
(1) "DWA Representative" means the DWA Engineer or his designee.
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01003.0080.40479v4
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(m) "Field Engineer" shall have the meaning ascribed to the term in
Section 7(a)(i) of this Agreement.
(n) "Fiscal Agent" shall mean the fiscal agent or trustee under the Bond
Resolution.
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j (o) "Other Facilities Account of the Improvement Fund" means the fined,
j account or sub-account of the Improvement Fund (regardless of its designation within the Bond
Resolution) into which a portion of the Bond Proceeds may be deposited in accordance with the
Bond Resolution to finance DWA Facilities and the Connection Fees.
(p) "Party" or "Parties" shall mean any one or all of the parties to this
Agreement.
(q) "Plans and Specifications" shall mean the plans and specifications for the
design and construction of DWA Facilities as approved by DWA, which approval shall not be
unreasonably withheld.
(r) "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
rnidertaken for the formation of the CFD pursuant to the Act.
(s) "Special Taxes" means the special taxes authorized to be levied and
collected pursuant to the Rate and Method.
(t) "State"means the State of California.
(u) "Substantially Complete" or "Substantial Completion" with respect to
DWA Facilities means that such DWA Facility is substantially complete in accordance with its
Plans and Specifications and is available for use by the public for its intended purpose,
notwithstanding any final "punch list" items still required to be completed, unless such items are
required for the safe operation of such DWA Facility, and shall be based upon approval of
DWA's inspectors, which shall not be unreasonably withheld.
3. Proposed Formation of the CFD. City will undertake to analyze the
appropriateness of forming the CFD to finance the DWA Facilities, the Connection Fees, and
other facilities. City 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 Proceeds. In the event that the CFD is formed, the City
Council acting as the legislative body of the CFD may finance the DWA Facilities and payment
of DWA's Connection Fees by issuing the Bonds. As Bond Proceeds are transferred to DWA
for payment of Connection Fees the Property with respect to which such transfer was made shall
receive a credit in the amount transferred against the payment of such fees. Nothing herein shall
supersede the obligation of an owner of the Property to pay fees to DWA 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 DWA Facilities, fund the Acquisition Price of DWA
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01003.0080.40479v4
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Facilities, and pay DWA's Connection Fees. In the event that Bond Proceeds, including
investment earnings thereon, are not available or sufficient to satisfy the obligation, then such
owner shall remain obligated to pay DWA's Connection Fees to DWA as a condition of
receiving water service to the Property.
The Bonds shall be issued only if, in its sole discretion, the City Council
determines that all requirements of State and Federal law and all City policies have been satisfied
or have been waived by City. In no event shall DWA or any owner of the Property, including
Property Owner, have a right to compel the issuance of the Bonds or the disbursement of Bond
Proceeds to fund DWA Facilities or the payment of DWA's Connection Fees.
5. Disbursements.
(a) Upon the funding of the Other Facilities Account of the Improvement
Fund, Property Owner may execute and submit a payment request to the City or the CFD
requesting disbursement of an amount equal to all Advances from the Other Facilities Account of
the hmprovement Fund. The sole source of fluids from which Property Owner will be entitled to
recover the Advances shall be the Bond Proceeds to be 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 DWA in writing and request a disbursement
from the Other Facilities Account of the Improvement Fund to fund DWA Facilities or
Connection Fees 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 terms of this Agreement, the CFD shall
wire transfer or otherwise pay to DWA such requested funds to the extent that Bond Proceeds are
available in the Other Facilities Account of the Improvement Fund for such purpose. Upon such
notice and DWA's receipt of such disbursement relating to DWA's Connection Fees, Property
Owner shall be deemed to have made payment to DWA in an amount equal to such
disbursement.
(c) City or the CFD agrees to maintain full and accurate records of all
amounts, and investment earnings, if any, expended from the Other Facilities Account of the
Improvement Fund. City or the CFD will, upon request, provide DWA and/or Property Owner
with access to City's or the CFD's records related to the Other Facilities Account of the
Improvement Fetid.
6. Ownership of DWA Facilities. The DWA Facilities shall be and remain the
property of DWA.
7. Acquisition of DWA Facilities. The Parties acknowledge that DWA may require
the Property Owner, pursuant to the DWA Rules and Regulations, to design, construct and
dedicate the DWA Facilities to DWA as a condition to providing water service to the Property.
The following provisions of this Section 7 shall apply solely with respect to those DWA
Facilities to he constructed by Property Owner and acquired by DWA with Bond Proceeds:
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01003.0080.40479v4
(a) Construction and Acquisition of DWA Facilities.
(i) The Property Owner will complete the Plans and Specifications for
such DWA Facilities. The Plans and Specifications shall include DWA's standard specifications
and shall be subject to DWA approval, which shall not be unreasonably withheld. DWA agrees
to process any Plans and Specifications for approval with reasonable diligence and in a timely
manner. The Property Owner may proceed with the construction of any such DWA Facilities in
accordance with the provisions of Section 7(b) hereof. A qualified engineering firm (the "Field
Engineer") shall be employed by Property Owner to provide all field engineering surveys
determined to be necessary by the DWA inspection personnel. Field Engineer shall promptly
furnish to DWA a complete set of grade sheets listing all locations, offsets, etc., in accordance with
good engineering practices, and attendant data and reports resulting from the Field Engineer's
engineering surveys and/or proposed facility design changes. DWA shall have the right,but not the
obligation, to review, evaluate and analyze whether such results comply with applicable
specifications.
(ii) If requested in writing by DWA, a full-time soils testing firm,
approved by DWA, shall be employed by Property Owner to conduct soil compaction testing and
certification. Property Owner shall promptly furnish results of all such compaction testing to
DWA for its review, evaluation and decision as to compliance with applicable specifications. In
the event the compaction is not in accordance or compliance with applicable specifications,
Property Owner shall be fully liable and responsible therefor. A final report shall be required
fully certifying trench compaction efforts.prior to acceptance of each of the DWA Facilities.
(iii) The cost of all surveying, compaction testing and report costs
associated with such DWA Facilities furnished and constricted by any contractors or sub-
contractors (collectively, "Contractors") shall be included among the costs which are eligible to
be paid from the Other Facilities Account of the Improvement Fund.
(iv) DWA shall not be responsible for conducting any environmental,
archaeological, biological, or cultural studies or any mitigation requirements related to the DWA
Facilities to be constructed by Property Owner that may be requested by appropriate Federal,
State, and/or local agencies. Any such work shall be paid for and such work shall be conducted
by, or on behalf of Property Owner and the costs of such work shall be eligible to be paid from
the Other Facilities Account of the Improvement Fund.
(b) Public Works Requirements. In order to ensure that the DWA Facilities
to be constructed by the Property Owner and acquired with Bond Proceeds will be constructed as
if they had been constricted under the direction and supervision, or under the authority of, the
DWA, so that they may be acquired by the DWA pursuant to Government Code Section
53313.5, the Property Owner shall comply with all of the following requirements:
(i) The Property Owner shall solicit a minimum of three (3) bids from
firms reasonably determined to be qualified to construct the DWA Facilities in conformance with
the Plans and Specifications.
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01003.0080.40479A
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(ii) Property Owner shall make arrangements with DWA to schedule
the bid opening, which is to be held at DWA headquarters, conducted by Property Owner and
witnessed by DWA staff.
(iii) The contract or contracts for the construction of such DWA
Facilities shall be awarded to the responsible bidder(s) submitting the lowest responsive bid(s)
for the constriction of such DWA Facilities.
(iv) The Property Owner shall require, and the specifications and bid
and contract documents shall require all such Contractors to pay prevailing wages and to
otherwise comply with applicable provisions of the State Labor Code, Government Code and
Public Contract Code relating to public works projects to the extent expressly applicable to a
non-governmental entity constructing infrastructure to be acquired by a public entity.
(v) Said Contractors shall be required to furnish labor and material
payment bonds and contract performance bonds in an amount equal to 100 percent of the
contract price naming the Property Owner and the DWA as obligees and issued by insurance or
surety companies approved by the DWA. All such bonds shall be in a form approved by the
DWA Representative. Rather than requiring its Contractors to provide such bonds, the Property
Owner may elect to provide the same for the benefit of its Contractors.
(vi) All such Contractors shall be required to provide proof of
insurance coverage throughout the tern of the construction of such DWA Facilities which they
will construct in conformance with the approved Plans and Specifications.
(vii) The Property Owner and all such Contractors shall comply with
such other requirements relating to the construction of such DWA Facilities which the DWA
may reasonably impose by written notification delivered to the Property Owner and each such
Contractor at any time either prior to the receipt of bids by the Property Owner for the
constriction of such DWA Facilities or, to the extent required as a result of changes in applicable
laws, during the progress of construction thereof. In accordance with this Section 7(b), the
Property Owner shall be deemed the awarding body and shall be solely responsible for
compliance and enforcement of the provisions of the State Labor Code, Government Code, and
Public Contract Code to the extent expressly applicable to a non-governmental entity
constructing infrastructure to be acquired by a public entity.
(viii) The Property Owner shall provide proof to the DWA, at such
intervals and in such form as the DWA Representative may require, that the foregoing
requirements have been satisfied as to all of the DWA Facilities constructed by Property Owner,
acquired by DWA and paid for with Bond Proceeds.
(c) Inspection; Completion of Construction.
(i) DWA shall have primary responsibility for providing inspection of
the construction of the DWA Facilities constructed by the Property Owner to ensure that the
construction is accomplished in accordance with the Plans and Specifications. DWA's personnel
shall have access to the site of the work at all reasonable times for the purpose of accomplishing
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01003.0080.40479v4
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such inspection. Upon Substantial Completion of the construction of such DWA Facilities by
Property Owner, the Property Owner shall notify the DWA in writing that the construction of
such DWA Facilities has been Substantially Completed.
(ii) Upon receiving such written notification from the Property Owner,
and upon receipt of written notification from its inspectors that construction of any of the DWA
]Facilities by Property Owner has been Substantially Completed, the DWA shall within 15 days
notify the Property Owner in writing that the construction of such DWA Facilities has been
satisfactorily completed. Upon receiving such notification, the Property Owner shall forthwith
file with the County Recorder of the County of Riverside a Notice of Completion pursuant to the
provisions of Section 3093 of the Civil Code. The Property Owner shall furnish to the DWA a
duplicate copy of each such Notice of Completion showing thereon the date of filing with the
County Recorder. Any actual costs reasonably incurred by the DWA in inspecting and
approving the construction of any DWA Facilities by Property Owner not previously paid by the
Property Owner shall be eligible to be paid from the Other Facilities Account of the
Improvement Fund or paid directly by Property Owner.
(d) Liens. Upon the expiration of the time for the recording of claim of liens
as prescribed by Sections 3115 and 3116 of the Civil Code, the Property Owner shall provide to
the DWA such evidence or proof as the DWA shall require that all persons, firms and
corporations supplying work, labor, materials, supplies and equipment on behalf of Property
Owner for the construction of any DWA Facilities have been paid, and that no claims of liens
have been recorded by or on behalf of any such person, firm or corporation. Rather than await
the expiration of the said tirne for the recording of clairns of liens, the Property Owner may elect
to provide to the DWA a title insurance policy or other security acceptable to the DWA
guaranteeing that no such claims of liens will be recorded or become a lien upon the Property
with priority over the lien of the special taxes to be levied thereon in the proceedings for the
formation of the CFD.
(e) Acquisition, Acquisition Price; Source of Funds.
(i) Provided the Property Owner has complied with the requirements
of this Agreement, DWA agrees to acquire the DWA Facilities from the Property Owner.
Notwithstanding the above, nothing herein shall be construed as requiring Property Owner to
construct and deliver any DWA Facility. The price to be paid by the CFD for the acquisition of
such DWA Facilities by DWA (the "Acquisition Price") shall be the lesser of(i) the value of the
DWA Facilities or (ii) the total of the Actual Costs of the DWA Facilities. The Property Owner
shall transfer ownership of the DWA Facilities to the DWA by grant deed, bill of sale or such
other documentation as the DWA may require. Upon the transfer of ownership of the DWA
Facilities or any portion thereof from the Property Owner to DWA, DWA shall be responsible
for the maintenance of the DWA Facilities or the portion transferred.
(ii) For purposes of determining the Acquisition Price to be paid by the
CFD for the acquisition of the DWA Facilities by DWA, the value of such improvements shall
be the amount determined by the DWA Engineer to be the value of the DWA Facilities based on
the Actual Costs submitted by the Property Owner, as hereinbefore specified; provided, however,
that if the DWA Engineer determines that such Actual Costs, or any of them, are excessive and
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01003.0080.40479v4
that the value of the DWA Facilities is less than the total amount of such Actual Costs, the
Acquisition Price to be paid by the CFD for the acquisition of the DWA Facilities shall be the
value thereof as determined by the DWA Engineer.
(iii) Upon completion of the construction of any DWA Facilities by
]Property Owner, the Property Owner shall deliver to DWA copies of the contract(s) with the
Contractor(s) who have constructed the DWA Facilities or other relevant documentation with
regard to the payments made to such Contractor(s) and each of them for the construction of such
DWA Facilities, and shall also provide to DWA copies of all invoices and purchase orders with
respect to all supplies and materials purchased for the construction of such DWA Facilities.
DWA shall require the DWA Engineer to complete its determination of the value of the DWA
Facilities as promptly as is reasonably possible.
(iv) To the extent funds are available therein, the Acquisition Price of
any DWA Facilities may be determined and paid out of the Other Facilities Account of the
Improvement Fund prior to transfer of ownership of the DWA Facilities to DWA upon a
determination of Substantial Completion of such DWA Facility. Property Owner shall submit a
payment request in the form attached hereto as Exhibit D (the "Facility Payment Request") to the
City or the CFD which must also contain therewith approval of DWA, which approval shall not
be unreasonably withheld.
(v) The City, DWA and the Property Owner acknowledge that (i) to
the extent the Property Owner has constructed and DWA has accepted certain DWA Facilities,
the Property Owner may submit to the City a Facility Payment Request for such DWA Facilities
for payment from the proceeds from the initial series of the Bonds; (ii) the Property Owner will
be constructing DWA Facilities prior to the issuance of additional Bonds the proceeds of which
will be used to pay the Property Owner for those DWA Facilities not funded from the initial
series of the Bonds; (iii) the Property Owner may be submitting Facility Payment Requests to the
City in advance of such an issuance of the additional Bonds, with knowledge that there may be
insufficient funds available for reimbursement of such costs in the Other Facilities Account of
the Improvement Fund at the time of submission of such Facility Payment Requests; (iv) the
DWA Facilities that are the subject of the Facility Payment Requests submitted when there are
insufficient proceeds will be inspected and reviewed by the City as set forth in this Agreement
and that such Facility Payment Requests will be reviewed by the City and, if appropriate,
approved for payment from the proceeds of the Bonds; and (v) the payment for any Facility
Payment Requests approved in the preceding manner will be deferred until the date, if any, on
which there are amounts in the Other Facilities Account of the Improvement Fund to make all or
part of such payment, at which tirne the City will direct the Fiscal Agent to wire transfer (or pay
in another mutually acceptable mariner) to the payee identified in such Facility Payment Request.
The Facility Payment Requests may be (i) paid in increments as funds become available in the
Other Facilities Account of the Improvement Fund, and (ii) paid out of the proceeds of any series
of additional Bonds. The Property Owner may pay for the DWA Facilities prior to the issuance
of the series of Bonds intended to finance such DWA Facilities or when there are insufficient
funds in the Other Facilities Account of the hnprovernent Fund to pay the Property Owner for
such payment. Any DWA Facilities paid by the Property Owner shall be made with the
understanding that such DWA Facilities shall be paid from the proceeds of the Bonds if, and
9
01003.0080.40479v4
i
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when, Bonds are issued or there are otherwise sufficient finds in the applicable Other Facilities
Account of the Improvement Fund. The payment by the Property Owner of the costs of DWA
Facilities prior to the issuance of Bonds shall not be construed as a dedication or gift of the DWA
Facilities, or a waiver of the purchase price of such DWA Facilities.
(vi) Notwithstanding the preceding provisions of this section, the sole
source of funds for the acquisition by DWA of the DWA Facilities or any portion thereof shall
be the Bond Proceeds made available by the CFD pursuant to Section 4 above. If for any reason
beyond DWA's control, the proceedings for the formation of the CFD are not completed or the
Bonds are not sold, DWA shall not be required to acquire any DWA Facilities from the Property
Owner. In such event, the Property Owner shall complete the design and construction and offer
to the DWA ownership of such portions of DWA Facilities as are required to be constructed by
the Property Owner as a condition to recordation of subdivision maps for the Property or any
other agreement between Property Owner and DWA, but need not construct any portion of the
DWA Facilities which it is not so required to construct.
(vii) Any DWA monetary reimbursements for construction of DWA
Facilities funded by the CFD will be paid to the CFD to pay down CFD bond debt. All other
reimbursements due Property Owner for the construction of facilities other than those financed
by the CFD shall be addressed in a separate agreement between Property Owner and DWA.
(f) Easements. The Property Owner shall, at the time DWA acquires the
DWA Facilities as provided in Section 7(e) hereof, grant to DWA, by appropriate instruments
prescribed by DWA, all easements on private property which may be reasonably necessary for
the proper operation and maintenance of such DWA Facilities, or any part thereof.
(g) Maintenance. Prior to the transfer of ownership of a DWA Facility by
the Property Owner to DWA, as provided in Section 7(e) hereof, the Property Owner shall be
responsible for the maintenance thereof and shall maintain and transfer such DWA Facility to
DWA in as good condition as the DWA Facility was in at the time the Property Owner notified
the DWA that construction of same had been completed in accordance with the Plans and
Specifications.
(h) Responsibility for DWA Facilities. The Parties acknowledge and agree
that all responsibility and obligation for the design, construction and dedication of such DWA
Facilities to DWA, in accordance with all applicable statutes and the DWA Rules and
Regulations, shall be and remain the responsibility of the Property Owner. The Parties also
acknowledge and agree that the construction and acquisition of the DWA Facilities to be
constructed by Property Owner is a matter between Property Owner and DWA only, and that the
City and the CFD shall have no responsibility or liability for on-site inspection or monitoring or for
certifying that the provisions of this Section 7 be satisfied.
(i) Exceptions to Section 7. Notwithstanding the foregoing, the following are
exceptions to the provisions of this Section 7:
(i) The DWA Facilities set forth in Exhibit B that are harked with
single asterisk have, as of the date of this Agreement and prior to the formation of the CFD,
10
0 t 003.0080.40479v4
already been Substantially Completed. Accordingly, these DWA Facilities are eligible for
acquisition from, and reimbursement to, the Property Owner upon final inspection and
acceptance by DWA, and the approval of the Facility Payment Request shall be approved by the
City without the necessity of complying with any of the Public Works Requirements (including,
but not limited to, the public bidding and prevailing wage requirements) set forth in this Section
7.
(ii) The DWA Facilities set, forth in Exhibit B that are marked with
two asterisks are, as of the date of this Agreement, already under contract for construction.
DWA and the City acknowledge and agree that such DWA Facilities shall not be subject to the
bidding requirements set forth in this Section 7.
8. Indemnification.
(a) Indemnification by City. City shall assume the defense of, indemnify
and save harmless, DWA and the Property Owner, and their respective officers and employees,
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 issuance of the
Bonds; provided, however, that City shall not be required to indemnify any person or entity as to
darnages 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, City, the CFD and DWA, their respective officers and
employees, 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, and the design, engineering and construction of the DWA Facilities constructed by
Property Owner; 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 DWA. DWA shall assume the defense of, indemnify
and save harmless, City, the CFD and Property Owner, their respective officers and employees,
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 DWA with respect to this Agreement, and the design,
engineering and construction of the DWA Facilities constructed by DWA; provided, however,
that DWA 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.
9. Allocation of Special Taxes. The City Council, 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 fund other
obligations, shall be allocated to the CFD.
11
01003,0080.40479v4
i
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10. Amendment and Assi mnent. 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 the Property Owner to the purchaser of any parcel of land within the Property provided,
however, such assignment shall not be effective miless and until DWA and City have been
notified, in writing, of such assignment.
11. 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.
12. 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:
City: City of Palm Springs
3200 E. Tahquitz, Canyon Way
Palm Springs, CA 92262
Attn: City Manager
DWA: Desert Water Agency
1200 Gene Autry Trail
P.O. Box 1710
Palm Springs, CA 92263-1710
Attn: General Manager
Property Owner: Palm Springs Classic LLC
c/o Lennar Homes of California, Inc.
391 N. Main St., Ste. 301
Corona, CA 92880
(951) 817-3649
(951) 817-3679 Fax
Each Party may change its address for delivery of notice by delivering written notice of such
change of address to the other parties hereto.
13. Exhibits. All exhibits attached hereto are incorporated into this Agreement by
reference.
14. Attorney 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.
15. 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
01003.0080.40479v4
16. 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.
17. 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.
18. 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 DWA,
City, the CFD, and 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.
19. Singular and Plural; Gender. As used herein, the singular of any word includes
the plural, and terns in the masculine gender shall include the feminine.
20. 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.
13
01003.0080.40479A
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year written above.
CITY OF PALM SPRINGS
r
_ Authorized Signature . F
APPROVED
NOW t UNCIL
ATTEST:
_ ///"Y
Clerk
DESERT WATER AGEN
General Manager
ATTEST:
By: � 4-Q�`
"Secretary of the Board of Directors
PALM SPRINGS CLASSIC, LLC,
a Delaware limited liability company
By: Leimar Homes of California, Inc.,
A California corporation,
Its Manager
By: _�
Name:
Its: teesIVENM
14
01003.0080.40479v4
EXHIBIT A
DESCRIPTION OF PROPERTY
LEGAL DESCRIPTION
THE LAND REFERRED TO IN THIS AGREEMENT IS SITUATED IN
THE STATE OF CALIFORNIA, COUNTY OF RIVERSIDE AND IS
DESCRIBED AS THE LAND INCLUDED IN TENTATIVE TRACT MAP NO.
32233 (EXCLUDING THE GOLF COURSE AND HOTEL SITES).
01003.0080.40479A
EXHIBIT B
DWA FACILITIES DESCRIPTIONS
DWA Facilities. The type of DWA Facilities eligible to be financed by the CFD under
the Act are as follows:
"DWA Facilities" means those facilities constructed by or on behalf of Property
Owner to be owned by DWA and also includes any of the following: DWA water transmission
lines, water pump stations, water reservoirs, including all costs of site acquisition, planning,
design, engineering legal services, materials testing, coordination, surveying, construction,
staking, construction inspection and any and all appurtenant facilities relating to the foregoing.
The DWA Facilities shall include,but not be limited to, the following:
1. West Spine Water hmprovements (in the approximate amount of$745,800)*
2. East Spine Water Improvements (in the approximate amount of$1,394,634)*
3. Reclaimed Water Line Improvements (in the approximate amount of
$1,500,000)*
The DWA Facilities listed above are representative of the types of facilities
eligible to be financed by the CFD. Detailed scope and limits of specific projects will be
determined as appropriate, consistent with the standards of DWA.
x These facilities have already been completed, or have been constructed by DWA at the
Property Owner's expense, and are therefore deemed to have satisfied the public works
requirements of the Agreement: upon final inspection, the costs of these improvements will be
paid to the Property Owner.
01003.0080.40479v4
Sequence No.
DWA SA#
EXHIBIT C
DISBURSEMENT REQUEST FORM
1. City of Palm Springs Community Facilities District No. 2005-2 (Eseena)
("CFD") is hereby requested to pay from the CFD bond proceeds to the payee set forth below the
sun set forth in 3 below.
Payee:
2. The undersigned certifies that the amount requested for Connection Fees is [(i) an
Advance payable to the Property Owner under the Agreement or (ii) 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 Exhibit A to the DWA system].
3. Amount requested: $
For Lot Nos:
4. The amount set forth in 3 above is authorized and payable pursuant to the terms of
the Joint Community Facilities Agreement by and among the City of Palm Springs, Desert Water
Agency and Palm Springs Classic LLC, dated July 1, 2005 (the "Agreement'). Capitalized
terms not defined herein shall have the meaning set forth in the Agreement.
PALM SPRINGS CLASSIC,LLC,
a Delaware limited liability company
By: Lennar Homes of California, Inc.,
A California corporation,
Its Manager
By:
Name:
Its:
DESERT WATER AGENCY
By:
Name:
Title:
Date:
cc: DWA Finance Dept.
01003.0080.40479v4
EXHIBIT D
FORM OF FACILITY PAYMENT REQUEST
(1) City of Palm Springs Community Facilities District No. 2005-2 (Escena)
("CFD") is hereby requested to pay from the CFD bond proceeds to the payee listed below, as
Payee, the suin set forth in (3)below:
Payee:
(2) The undersigned certifies that the amount requested is for the payment of, or
reimbursement for, DWA Facilities financed through the Joint Community Facilities Agreement,
by and among the City of Palm Springs, Palm Springs Classic, LLC, and Desert Water Agency
(the "JCFA"), and that such amount has not formed the basis of prior request or payment, and is
being made with respect to DWA Facilities to be owned or operated by Desert Water Agency.
(3) Amount requested: $
Description of DWA Facilities:
(4) Capitalized terns not defined herein shall have the meaning set forth in the JCFA
Dated:
PALM SPRINGS CLASSIC, LLC,
a Delaware limited liability company
By: Lennar Homes of California, Inc.,
A California corporation,
Its Manager
By:
Name:
Its:
01003.0080.40479v4
By execution of this Facility Payment Request, the Desert Water Agency does hereby
approve of the payment as described in this Facility Payment Request.
DESERT WATER AGENCY
By:
Name:
Title:
Date:
01003.0080.40479v4
i
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A.O�pALMSA�2
City of Palm Spr •
ings
Office of the City Clerk
* nnseo'"3 3200 E.Tahquitz Canyon Way • Palm Springs, California 92262
C, �P Tel: (760) 323-8204 • Fax. (760) 322-8332 • Web: www.ci.palm-spungs.ca.us
q<IFoeN
j October 19, 2005
Ms. Anita Luck
Aleshire &Wynder LLP
18881 Von Karman Ave., Suite 400
Irvine, CA 92612
RE: CFD 2005-2 (Escena)
City of Palm Springs Special Tax Bonds
A5170
Dear Anita:
Attached are five (5) fully executed originals of the Joint Community Facilities
Agreement as approved by the City Council on October 5, 2005. 1 have kept one fully
executed original set for our records.
Please do not hesitate to contact our office if there are any questions, or if additional
information is required.
Sincerely,
Kathie Hart, CIVIC
Chief Deputy City Clerk
/kdh
Encl.
Post Office Box 2743 • Palm Springs, California 92263-2743
ALESHIRE Sz 18881 Von Karmen Ave.
I WYNDER, LLP suite 400
Irvine,CA 92612
ATTORNEYS AT LAW
Phone 949.223.1170
www.awattarneys.com
Fax 949.223.1180
October 5, 2005
i SENDER'S E-MAIL:
ALUCIC@A W ATTORNEYS.COM
James Thompson
City Clerk
3200 E. Tahquitz Canyon Way
Patin Springs, CA 92262
Re: CFD 2005-2 (Escena) of the City of Palm Springs Special Tax Bonds,
2005 Series A
]Dear James:
Enclosed please find six (6) originals of the Joint Colmnunity Facilities Agreement in
connection with the Escena project. These documents are being approved on October 5, 2005.
Please have these documents signed (by the City Manager and the City Clerk) where indicated,
maintain an original for your records and return the remaining documents to me. I will include
these in a final transcript of documents to be distributed to all parties.
Please call me with any questions.
Very truly yours,
ALESHIRE & /W��Y�Ni,DER, LLP
4'&" 06 �'
Anita Luck
AL:prj
Enclosure
01003/0080/41837 01