CONSENT AND WAIVER
CITY OF FONTANA
COMMUNITY FACILITIES DISTRICT NO. 112
(THE GARDENS PHASE ONE)
City Council
City of Fontana
8353 Sierra Avenue
Fontana, California 92335
Members of the City Council:
Pursuant to a petition of AG EHC II (LEN) CA 2, L.P., a Delaware limited partnership (the "Landowner"), the City Council (the "City Council") of the City of Fontana (the "City") has commenced proceedings under the Mello-Roos Community Facilities Act of 1982 (the "Act") to establish a community facilities district proposed to be named City of Fontana Community Facilities District No. 112 (The Gardens Phase One) (the "Community Facilities District") and to authorize the levy of a special tax (the "Special Tax") therein and to authorize special tax bonds for the Community Facilities District. This is a consent and waiver with respect to certain procedural matters under the Act, and the undersigned hereby states as follows:
1. Landowner; Property. This Consent and Waiver is submitted by the Landowner, as the legal owner of the real property described in Exhibit A attached hereto and made a part hereof (the "Property"). All of the Property is proposed to be included within the boundaries of the Community Facilities District. The Property consists of approximately 40.69 acres and comprises approximately 79.4% of the area of land proposed to be included within the Community Facilities District and not proposed to be exempt from the Special Tax.
The boundaries of the territory that is proposed for inclusion in the Community Facilities District are described in Exhibit B attached hereto and made a part hereof. Such territory consists of approximately 69.92 acres.
2. Proceedings. The Landowner hereby acknowledges and agrees that the City Council has, pursuant to a petition of the Landowner, commenced proceedings pursuant to the Act to establish the Community Facilities District, to authorize the levy of the Special Tax in the Community Facilities District to finance certain public facilities and services, and to authorize special tax bonds for the Community Facilities District in an amount not to exceed $36,000,000.
The public facilities proposed to be financed by the Community Facilities District pursuant to the Act are described under the caption "Facilities" on Exhibit C attached hereto and the services proposed to be financed by the Community Facilities District pursuant to the Act are described under the caption "Services" on Exhibit C attached hereto. The City Council has fixed April 25, 2023 at 7:00 p.m. or as soon thereafter as the City Council may reach the matter, at 8353 Sierra Avenue, Fontana, California, as the time and place where the City Council will conduct public hearings on the establishment of the Community Facilities District and the proposed debt issue of the Community Facilities District, provided, that, in the event the April 25, 2023 City Council 4138-9535-5973.3
meeting is held via teleconference and/or videoconference only, the means by which the public may observe such public hearings and offer public comment would be as prescribed in the notice District. The Landowner hereby acknowledges and agrees that it had actual notice of the public hearings, that notice of such hearings has been given in accordance with the Act, that it waives any and all defects (if any) in such notice, and that it waives any rights it may have to make any protest or complaint or to undertake any legal action challenging the adequacy of such notice.
3. Ownership of Property; No Registered Voters; Landowner Election. The Landowner represents and warrants to the City that it is the legal owner of the fee interest in all of the Property and that no other person or entity is the legal owner of all or any portion of the fee interest in any of the Property. To the best of the Landowner's knowledge, there are no registered voters residing within the boundaries of the Property as of the date hereof, and there have been fewer than 12 registered voters residing therein during each of the 90 days preceding the date of this Consent and Waiver.
The Landowner hereby acknowledges and agrees that, pursuant to Section 53326(b) of the Act, if fewer than 12 persons have been registered to vote within the territory of the Community Facilities District for each of the 90 days preceding the close of the public hearings on the establishment of the Community Facilities District and the proposed debt issue of the Community Facilities District, the vote on the proposition to incur bonded indebtedness of the Community Facilities District, to levy the Special Tax in the Community Facilities District and to establish an appropriations limit for the Community Facilities District shall be by the landowners of the Community Facilities District and each person who is the owner of land at the close of said public hearings, or the authorized representative thereof, shall have one vote for each acre or portion of an acre of land that he or she owns within the Community Facilities District not exempt from the Special Tax. The Landowner hereby acknowledges and agrees that if, as anticipated, said public hearings are closed on the date hereof, said vote shall, pursuant to Section 53326(b) of the Act, be by the landowners of the Community Facilities District.
4. Request. The Landowner hereby requests that the special election to be held under the Act on the proposition to incur bonded indebtedness of the Community Facilities District, to levy the Special Tax in the Community Facilities District and to establish an appropriations limit for the Community Facilities District be conducted using mailed or hand-delivered ballots, that such ballots be opened and canvassed at such election, and that the results of such election be certified at the same meeting of the City Council as the public hearings on the establishment of the Community Facilities District and the proposed issuance of bonded indebtedness of the Community Facilities District, or as soon thereafter as possible.
5. Consent and Waiver. The Landowner hereby acknowledges and agrees that if the special election to be held under the Act on the proposition to incur bonded indebtedness of the Community Facilities District, to levy the Special Tax in the Community Facilities District and to establish an appropriations limit for the Community Facilities District is held on April 25, 2023, said election would be held less than 90 days after the anticipated close of the April 25, 2023 public hearings on the establishment of the Community Facilities District and the proposed issuance of 2 4138-9535-5973.3
bonded indebtedness of the Community Facilities District. The Landowner hereby acknowledges and agrees that, pursuant to Section 53326 of the Act, any time limit specified by Section 53326 of the Act and any requirement pertaining to the conduct of such special election, including any time limit or requirement applicable to an election pursuant to Article 5 of the Act (commencing with Section 53345 of the Act), may be waived with the unanimous consent of the qualified electors of the Community Facilities District and the concurrence of the election official conducting the election. The Landowner hereby consents to the waiver of, and hereby waives, any time limit specified by Section 53326 of the Act and any requirement pertaining to the conduct of said special election, including any time limit or requirement applicable to an election pursuant to Article 5 of the Act (commencing with Section 53345 of the Act), including, but not limited to, all notices with respect thereto (published, mailed or otherwise to be given), any voter qualification requirements, any time limitations, any requirements as to form or content of election materials, all publication requirements, all pre-election, election or voting procedures (other than the right to vote) and all canvass, recount and tie vote procedures. The Landowner hereby consents to the holding of said special election on April 25, 2023.
The Landowner hereby acknowledges and agrees that (a) as the vote is to be by the landowners of the Community Facilities District, pursuant to Section 53327(b) of the Act, any impartial analysis, arguments or rebuttals, if any, with respect to the special election on the proposition to incur bonded indebtedness of the Community Facilities District, to levy the Special Tax in the Community Facilities District and to establish an appropriations limit for the Community Facilities District may be waived with the unanimous consent of all the landowners of the Community Facilities District, and (b) pursuant to Section 53326 of the Act, with the concurrence of the election official for said special election, any requirement pertaining to the conduct of said special election may be waived with the unanimous consent of all the qualified electors of the Community Facilities District. The Landowner hereby acknowledges and agrees that said special election is to be held without the preparation of an impartial analysis and arguments and rebuttals, if any, as permitted by Section 53327(b) of the Act. The Landowner hereby consents to the waiver of, and hereby waives, the requirement in Section 53327(a) that there be prepared and included in the ballot material provided to each voter an impartial analysis pursuant to Section 9160, 9280 or 9500 of the California Elections Code, and arguments and rebuttals, if any, pursuant to Sections 9162 to 9167, inclusive, and Section 9190 of the California Elections Code or pursuant to Sections 9281 to 9287, inclusive, and Section 9295 of the California Elections Code, or pursuant to Sections 9501 to 9507, inclusive, of the California Elections Code, or pursuant to other provisions of law applicable to other special districts as appropriate.
The Landowner hereby represents that it has obtained such information with respect to the consents and waivers contained herein as it has deemed necessary or appropriate. The Landowner hereby confirms and represents that it is fully informed with respect to such consents and waivers and fully understands the consequences thereof.
The Landowner hereby waives any and all defects in notice or procedure in any proceedings to establish the Community Facilities District, to levy the Special Tax in the Community Facilities District and to authorize special tax bonds for the Community Facilities District, or in the conduct of the election, whether known or unknown (other than, in the case of the election, the right to have ballots accurately counted), and the Landowner hereby represents that the election is being expedited pursuant to this Consent and Waiver, at the particular request 3 4138-9535-5973.3
of the Landowner. The Landowner further waives its right to make any protest or complaint or to undertake any legal action challenging the validity of the election.
6. Authorized Representative. The undersigned, Steven S. Benson, has been duly authorized by the Landowner and possesses all authority necessary to execute this Consent and Waiver on behalf of the Landowner in connection with the election to be held under the Act on the proposition to incur bonded indebtedness of the Community Facilities District, to levy the Special Tax in the Community Facilities District and to establish an appropriations limit for the Community Facilities District, and is the authorized representative of the Landowner authorized to execute ballots on behalf of the Landowner and to vote in the election referred to herein. The signature set forth opposite the name of such authorized representative is the genuine signature of such person:
Name Signature
Steven S. Benson
7. Mailing Address. The address of the Landowner for receiving notices and ballots is:
AG EHC II (LEN) CA 2, L.P., c/o Essential Housing Asset Management, LLC, 8585 East Hartford Drive, Suite 118, Scottsdale, Arizona 85255, Attention: Steven S. Benson, Manager.
This Consent and Waiver is dated as of April 25, 2023.
AG EHC II (LEN) CA 2, L.P.,
a Delaware limited partnership
By: Essential Housing Asset Management, LLC,
an Arizona limited liability company,
its Authorized Agent
By: _
Steven S. Benson, its Manager
4 4138-9535-5973.3
EXHIBIT A
DESCRIPTION OF PROPERTY
The Property consists of the following:
Those portions of San Bernardino County Assessor Parcel Numbers 1118-411-01, 1118-441-02, 1118-461-01 and 1118-461-02, described as follows:
All of the property included within Lot 5 of Tract Map No. 20362, recorded on April 6, 2022, in Book 362 ot Tract Maps at Pages 78 through 84, inclusive, in the Office of the San Bernardino County Recorder (recorded as Document No. 2022-0129505), excepting therefrom Residential Units 1 through 5, inclusive, and Residential Units 23 through 25, inclusive, Module A, and the Master Common Area located within Module 1, Residential Unit 26 located within Module 1, and Residential Units 79 through 81, inclusive, and the Master Common Area located within Module 13; All of the property included within Lot 6 of Tract Map No. 20362, recorded on April 6, 2022, in Book 362 of Tract Maps at Pages 78 through 84, inclusive, in the Office of the San Bernardino County Recorder (recorded as Document No. 2022-0129505), excepting therefrom Residential Units 1011 through 1013, inclusive, and the Master Common Area located within Module 9 and Residential Units 1111 through 1113, inclusive, Residential Units 1121 through 1123, inclusive, Residential Units 1151 through 1153, inclusive, and the Master Common Area located within Module 1; All of the property included within Tract Map No. 20363, recorded on July 27, 2022, in Book 363 of Tract Maps at Pages 58 through 66, inclusive, in the Office of the San Bernardino County Recorder (recorded as Document No. 2022-0259528), excepting therefrom Lots 2 through 11, inclusive, Lots 48 through 73, inclusive, Lots 75 through 78, inclusive, Lot 81, Lot 82, Lots 92 through 95, inclusive, Lot 131, Lot 132, Lots 207 through 209, inclusive, and Lots 236 through 238, inclusive; and All of the property included within Tract Map No. 20364, recorded on July 27, 2022, in Book 363 of Tract Maps at Pages 67 through 71, inclusive, in the Office of the San Bernardino County Recorder (recorded as Document No. 2022-0259529), excepting therefrom Lots 1 through 10, Lot 48, Lot 49, and Lots 59 through 64, inclusive.
A-1
4138-9535-59733
EXHIBIT B
BOUNDARIES OF COMMUNITY FACILITIES DISTRICT
The boundaries of the territory which is proposed for inclusion in the Community Facilities District are depicted in the attached map. Such territory consists of the following:
San Bernardino County Assessor Parcel Numbers 1118-411-01, 1118-441-02, 1118-461-01 and 1118-461-02, described as follows:
All of the property included within Lot 5 and Lot 6 of Tract Map No. 20362, recorded on April 6, 2022, in Book 362 of Tract Maps at Pages 78 through 84, inclusive, in the Office of the San Bernardino County Recorder (recorded as Document No. 2022-0129505;
All of the property included within Tract Map No. 20363, recorded on July 27, 2022, in Book 363 of Tract Maps at Pages 58 through 66, inclusive, in the Office of the San Bernardino County Recorder (recorded as Document No. 2022-0259528); and All of the property included within Tract Map No. 20364, recorded on July 27, 2022, in Book 363 of Tract Maps at Pages 67 through 71, inclusive, in the Office of the San Bernardino County Recorder (recorded as Document No. 2022-0259529).
B-1
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CONFORMED CODY
PROPOSED BOUNDARIES OF CITY OF FONTANA COMMUNITY FACILITIES DISTRICT NO. 112 (THE GARDENS PHASE ONE)
COUNTY OF SAN BERNARDINO, STATE OF CALFORNIA
.. DUNCAN CANYON ROAD LEGAL DESCRIPTION
CONS 8997 ACR OF LONG MAD TRIAN DANENTY FACIES ASTRI NO IZ (THE CARDENS PHASE NE) -OD BOUNDARY
CE AS 107 3 AS 1076 TRACT A SAN EL C T N HIT L TENG NO SARAS CAR
BASIS OF BEARINGS
IN 158 8 59 920M 19 AISO SENE RE CONTAIN OF SENA ADRE BENS MORNINE PER TRACT AR - Aror. March. 122:
- SIERRA AVENUE
TRACT NO. 20363
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• AT THE REQUEST OF THE OTY OF FONTANA
N ME MaNrar8..111, 00
GO BOUNDARY
¿ CYPRESS AVENUE
TRACTNO. 20362 - Calls Duan
Đ' ТЕРИТУ РОКОЇХ
FIELDCRESS DRIVE
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TRACT NO. TRACT NO. 20364
20362
LOT 6
CASA GRANDE AVENUE (THE GARDENS PHASE ONE
SAT
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EXHIBIT C
FACILITIES AND SERVICES TO BE FINANCED
Facilities
The types of facilities to be financed by the Community Facilities District are streets, including grading, paving, curbs and gutters, sidewalks, street signalization and signage, street and easements necessary for any of such facilities.
Services
The types of services to be financed by the Community Facilities District are fire protection C-1
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