HomeMy WebLinkAbout04990 - DWA DESERT WATER AGENCY FACILITIES FOR AD#162 THE VILLAS 48 @ BARRISTO Kathie Hart
From: Marcus Fuller
Sent: August 04, 2010 10:15 AM
To: Kathie Hart
Subject: FW: AD 162, Water Facilities Agreement
Cathie, I've confirmed you can close out A4990.
Marcus
From: Steve Johnson [ma i Ito:steve@dwa.org]
Sent: Wednesday, August 04, 2010 8:53 AM
To: Marcus Fuller
Subject: RE: AD 162, Water Facilities Agreement \_+
Marcus--You can close out the agreement.
Thanks,
Steve
From: Marcus Fuller [mailto:Marcus.Fuller@palmsprings-ca.gov]
Sent: Tuesday, August 03, 2010 5:50 PM
To: Steve Johnson
Subject: AD 162, Water Facilities Agreement
Steve, I'm reasonably sure that we can close out this agreement from 2004 and that DWA's
been paid the bond proceeds for AD 162 that covered the water improvements, but please
confirm before I tell the Clerk to close out the agreement. Thanks
Sincerely,
Marcus L. Fuller, P.E., P.L.S.
Assistant City Engineer/
Assistant Director of Public Works
City of Palm Springs
(760) 323-8253, ext. 8744
www.palmspringsca,gav
Marcus.Fuller@palmspringsca.gov
From: Kathie Hart
Sent: Tuesday, August 03, 2010 12:02 PM
To: Marcus Fuller
Cc: Jay Thompson
Subject: A4990 - DWA
Marcus:
This agreement expired in 2005.
nwnaii o
DK to close?
'lease advise.
Thx!
A4990 Water Facilites A,graeMnt A. D. 162 Was In Ole!P S 48(M Bansta P a... 11 12004 1 UOU2005
Company Name: Desert Water Agency
Acldr ss: , P.0,Box 1710,Pala Spdrigs,CA 922
Oo,ntact: General Manager
Group: ENGINEERING
Service. in File
Ad, ENGINEERING
Iris. Status: No Cer Icate on tile.
Kathie
Kathie Hart, CIVIC
.hief Deputy City Clerk
.ity of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
(760) 323-8206 16 (760) 322-8332
Kathie.Hart@PalmSpringsCA.gov
Please note that City Hall is open 8 a.m. to 6 p.m. Monday through Thursday, and closed on
Fridays at this time.
numan 0
Desert Water Agency
Water Facilities for AD#162
AGREEMENT#4990
R21126, 11-3-04
WATER FACILITIES AGREEMENT
Between
CITY OF PALM SPRINGS
and
DESERT WATER AGENCY
relating to
ASSESSMENT DISTRICT NO. 162
(THE VILLAS IN OLD PALM SPRINGS AND 48 @ BARISTO)
OF THE CITY OF PALM SPRINGS
WATER FACILITIES AGREEMENT
THIS WATER FACILITIES AGREEMENT (the "Agreement") is entered into
effective as of , 2004, 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. 162 of the City of Palm Springs (The Villas in Old
Palm Springs and 48 @ Baristo)" ("A.D. No. 162") 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. 162. Palm Springs Modern Homes V, LLC and Palm Springs
Modern Homes II, LLC (collectively, "Property Owners") are the owners of the Property.
B. The City has primary responsibility for the formation and administration
of A.D. No. 162.
C. The City Council of the City of Palm Springs (the "City Council")
proposes to form and establish A.D. No. 162 and to issue bonded indebtedness of A.D.
No. 162 (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. The Property Owners intend to construct and install the Facilities, which
upon completion of such Facilities, title to such Facilities will vest in Desert.
E. The parties hereto find and detennine 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.
F. This Agreement constitutes a joint community facilities agreement, within
the meaning of Sections 10109 and 10110 of the Act, by and between Desert and the
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 Act, responsibility for constructing and providing for 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.
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G. 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, 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. 162, 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 fiords to
finance the payment of water connection fees or as reimbursement of payment of water
connection fees. In the event that Bond proceeds, including investment earnings thereon,
are not available to satisfy the obligation, then the Property Owners 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 Owners in the Form of Exhibit B hereto and made in accordance with the terns
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
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 finding of the Water Facilities Account of the
Acquisition and Construction Fund, Desert and Property Owners may submit a request
2
for payment, in the form attached hereto as Exhibit B, for (a) disbursement to Desert or
Property Owners 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 prior to the availability of the Bonds, which request shall
be signed by an authorized officer of Desert and the Property Owners. 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 Owners, as requested such requested funds to the extent that Bond proceeds are
available for such purpose.
4. Construction. Property Owners 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. Upon completion of construction according to the Plans
and Specifications approved by Desert, if any, Property Owners will convey the Facilities
to Desert and Desert will accept the Facilities. The parties hereto expect the Facilities to
be installed and completed by December, 2004.
S. 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 time but only in
writing signed by each party hereto.
8. 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
3
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 1710
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
patty'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
Owners (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 Owners
(and their respective successors and assigns), any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
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.
4
EXHIBIT A
THE PROPERTY
luded in A.D. No. 162 is described as:
6
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 2004 Limited Obligation Bonds (the "Bonds") to [Desert
Water Agency ("Desert")][Property Owners], 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. 162 (The Villas in Old Palm Springs and
48 @ Baristo) 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 Owners].
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
, 2004 (the "Agreement'). Capitalized terms not defined herein shall
have the meaning set forth in the Agreement.
DESERT WATER AGENCY [Property Owners]
By:
By: Name:
Name: Title:
Title:
Date:
Date:
1
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 Mane '
((�� 11 n,^^ 'ATTEST: __
By: IV6b
Otlerk of the City of Palm Springs
WAT
L�DESERT
r <• E `� Y
David K. Luker, General Manager
ATTEST:
By:
/Xecretary of the oard of Directors
ACKNOWLEDGED AND AGREED TO BY:
PALM SPRINGS MODERN I, LLC,
a California li itecTli�m�j
By:
e en i nm
t • �42 rize epre-sent�ative
PALM SPRINGS MODERN �ME LLC,
a California limited lia ' y cV��
By
rfgam
s: Anth o ed Rep ntative
APPROVED AS TO FORM
Cii�,ttomey
5
D�CONTRACT ABSTRACT
XA\11
Contract
Company Name: Desert Water Agency
Company Contact: General Manager
Summary of Services: Water Facilities Agreement for AD4162
Contract Price:
Funding Source:
Contract Term:
Contract Administration
Lead Department: Public Works & Engineering
Contract Administrator: David Barakian /Marcus Fuller
Contract Approvals
Council/Cc,mmunity Rede\,elopnient 11/03/04
Agency Approval Date:
Minute Order/Resolutioi,Number: To Be Assigned j%r.q/,
Agreement Number: To Be Assigned '
Contract Compliance
Exhibits:
Signatures:
Insurance:
Bonds:
Contract prepared by: VK- 1.l
`�Submitted on: By: G �� WVAA ? ° "
' r�--V i e,W i4,1-e—