CERTIFICATE OF ACKNOWLEDGEMENTS, REPRESENTATIONS, WARRANTIES,
CONSENTS AND WAIVERS
CITY OF FONTANA
COMMUNITY FACILITIES DISTRICT NO. 113
(THE GARDENS PHASE TWO)
City Council
City of Fontana
8353 Sierra Avenue
Fontana, California 92335
Members of the City Council:
This Certificate of Acknowledgements, Representations, Warranties, Consents and Waivers (this "Certificate") is delivered by the undersigned, North Fontana Investment Company, LLC, a Delaware limited liability company (the "Landowner"), in connection with the special election referred to herein and is submitted to the City Council (the "City Council") of the City of Fontana (the "City") upon and as of the adoption on the date hereof of the resolution of the City Council entitled "A Resolution of the City Council of the City of Fontana Deeming it Necessary for City of Fontana Community Facilities District No. 113 (The Gardens Phase Two) to Incur Bonded Indebtedness."
1. Petition. The Landowner hereby acknowledges, confirms and agrees (a) that the Landowner submitted to the City Council the Landowner's Petition to Create a Community Facilities District, dated as April 9, 2024 (the "Petition"), requesting that the City Council institute proceedings under the Mello-Roos Community Facilities Act of 1982 (the "Act") (i) to establish a community facilities district proposed to be named City of Fontana Community Facilities District No. 113 (The Gardens Phase Two) (the "Community Facilities District"), (ii) to authorize the Community Facilities District to levy a special tax (the "Special Tax") within the Community Facilities District, (ili) to establish an appropriations limit of the Community Facilities District, and (iv) to authorize the Community Facilities District to incur bonded indebtedness in a maximum amount of $24,000,000, and (b) that, pursuant to the Petition, the City Council initiated such proceedings.
The Landowner hereby acknowledges, confirms and agrees (a) that the Petition described the real property owned by the Landowner that was to be included within the proposed boundaries of the Community Facilities District, which real property is described in Exhibit A attached hereto and made a part hereof (the "Property"), (b) that the Petition described the boundaries of the territory proposed for inclusion in the Community Facilities District, which boundaries are described in Exhibit B attached hereto and made a part hereof (the "Boundaries of the Community Facilities District"), (c) that the Petition stated the types of public facilities to be financed by the Community Facilities District, which facilities are described under the caption "Facilities" on Exhibit C attached hereto and made a part hereof (the "Facilities"), (d) that the Petition stated the types of services to be financed by the Community Facilities District, which services are described under the caption "Services" on Exhibit C attached hereto and made a part hereof (the "Services"), and (e) that, pursuant to the Petition, the Landowner consented to the waiver of, and waived, all 4151-4296-1486.2
time limits and all requirements pertaining to the conduct of the election specified in the Act, all notices with respect thereto (other than published notices required under the Act), all voter qualification requirements, all requirements as to the form or content of election materials, all voting procedures (other than the right to vote), all canvass, recount and tie vote procedures, all requirements that there be prepared and included in the ballot material provided to each voter an impartial analysis and arguments and rebuttals, if any, and all requirements as to the form and content of the ballot for the election, including any requirement that the ballot include the type or amount or rate of the Special Tax, the duration of the Special Tax, the use of the revenue derived from the Special Tax or the amount of money to be raised annually from the Special Tax.
2. Proceedings. The Landowner hereby acknowledges, confirms and agrees (a) that, on April 9, 2024, the City Council, pursuant to the Act, adopted a resolution entitled "A Resolution of the City Council of the City of Fontana of Intention to Establish a Community Facilities District Proposed to be Named City of Fontana Community Facilities District No. 113 (The Gardens Phase Two) and to Authorize the Levy of a Special Tax Therein" (the "Resolution of Intention"), stating its intention to establish the Community Facilities District, to authorize the Community Facilities District to levy the Special Tax within the Community Facilities District and setting the date for a public hearing to be held on the establishment of the Community Facilities District, which date is the date hereof, (b) that the Landowner had actual notice of said public hearing and that notice of said public hearing has been given in accordance with the Act, (c) that on the date hereof, the City Council opened, conducted and closed said public hearing, and (d) that none of the establishment of the Community Facilities District, the furnishing of any specified type or types of Facilities or Services within the Community Facilities District or the levying of a specified special tax was precluded by majority protest pursuant to 53324 of the Act. The Landowner hereby acknowledges, confirms and agrees that the rate and method of apportionment of the Special Tax (the "Rate and Method" was set forth in the Resolution of Intention and that the Rate and Method specifies the rate, method of apportionment and manner of collection of the Special Tax in sufficient detail to allow each landowner or resident within the proposed Community Facilities District to estimate the maximum amount that he or she will have to pay.
The Landowner hereby acknowledges, confirms and agrees (a) that, on April 9, 2024, the City Council, pursuant to the Act, adopted a resolution entitled "A Resolution of the City Council of the City of Fontana Declaring it Necessary for City of Fontana Community Facilities District No. 113 (The Gardens Phase Two) to Incur Bonded Indebtedness" (the "Resolution Declaring Necessity"), declaring it necessary for the Community Facilities District to incur bonded indebtedness, stating the purpose for which the proposed debt will be incurred, stating the maximum amount of the proposed debt and setting the date for a public hearing to be held on the proposed debt authorization, which date is the date hereof, (b) that the Landowner had actual notice of the said public hearing and that notice of said public hearing has been given in accordance with the Act, and (c) that on the date hereof, the City Council opened, conducted and closed said public hearing.
The Landowner hereby acknowledges, confirms and agrees that, on the date hereof, the City Council, pursuant to the Act, adopted a resolution entitled "A Resolution of the City Council of the City of Fontana of Formation of City of Fontana Community Facilities District No. 113 (The Gardens Phase Two, Proposing that the Community Facilities District be Authorized to Levy a Special Tax and Proposing that an Appropriations Limit of the Community Facilities District be 2 4151-4296-1486.2
Established" (the "Resolution of Formation"), establishing the Community Facilities District, proposing that the Community Facilities District be authorized to levy the Special Tax within the Community Facilities District, proposing that an appropriations limit of the Community Facilities District be established and stating that the propositions to authorize the Community Facilities District to levy the Special Tax and to establish the appropriations limit of the Community Facilities District shall be subject to the approval of the qualified electors of the Community Facilities District at a special election. The Landowner hereby acknowledges, confirms and agrees that the Rate and Method was set forth in the Resolution of Formation and that the Rate and Method specifies the rate, method of apportionment and manner of collection of the Special Tax in sufficient detail to allow each landowner or resident within the proposed Community Facilities District to estimate the maximum amount that he or she will have to pay.
The Landowner hereby acknowledges, confirms and agrees that, on the date hereof, the City Council, pursuant to the Act, adopted a resolution entitled "A Resolution of the City Council of the City of Fontana Deeming it Necessary for City of Fontana Community Facilities District No. 113 (The Gardens Phase Two) to Incur Bonded Indebtedness" (the "Resolution Deeming Necessity"), deeming it necessary for the Community Facilities District to incur bonded indebtedness, stating the purpose for which the bonded indebtedness will be incurred, stating the maximum amount of debt to be incurred, stating the maximum term the bonds to be issued shall run before maturity, stating the maximum annual rate of interest on the bonds and stating that the proposition to authorize the Community Facilities District to incur the bonded indebtedness shall be submitted to the qualified electors of the Community Facilities District.
3. Special Election. The Landowner hereby acknowledges, confirms and agrees (a) that there has been prepared and included in the agenda for the meeting of the City Council on the date hereof a resolution entitled "A Resolution of the City Council of the City of Fontana Calling Special Election for City of Fontana Community Facilities District No. 113 (The Gardens Phase Two)" (the "Resolution Calling Election"), calling a special election (the "Special Election") to submit to the qualified electors of the Community Facilities District the combined ballot proposition to authorize the Community Facilities District to incur bonded indebtedness, to authorize the Community Facilities District to levy the Special Tax and to establish the appropriations limit of the Community Facilities District, (b) that the form of the official ballot for the Special Election (the "Ballot") is attached as an exhibit to the Resolution Calling Election, and (c) that the measure to be submitted to the voters, as set forth in the Ballot, is as follows:
Shall the measure to authorize City of Fontana Community Facilities District No. 113 (The Gardens Phase Two) (the "Community Facilities District") to incur bonded indebtedness in a maximum amount of $24,000,000, to authorize the Community Facilities District to levy a special tax in order to finance certain facilities and services and to establish the annual appropriations limit of the Community Facilities District at $24,000,000, as specified in the resolutions adopted by the City Council of the City of Fontana on May 14, 2024 entitled "A Resolution of the City Council of the City of Fontana of Formation of City of Fontana 4151-4296-1486.2
Facilities District be Established" and "A Resolution of the City Council of the City of Fontana Deeming it Necessary for City of Fontana Community Facilities District No. 113 (The Gardens Phase Two) to Incur Bonded Indebtedness," be adopted?
The Landowner hereby represents and warrants (a) that, as of the date hereof, 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, (b) that all of the Property is included within the Boundaries of the Community Facilities District, (c) that the Property consists of approximately 17.72 acres not exempt from the Special Tax and comprises approximately 48.72% of the area of land included within the Boundaries of the Community Facilities District and not exempt from the Special Tax, (d) that the Boundaries of the Community Facilities District, as described in Exhibit B hereto, constitute the boundaries of the territory that is included in the Community Facilities District, and (e) that such territory consists of approximately 36.37 acres not exempt from the Special Tax.
The Landowner hereby represents and warrants that, to the best knowledge of the Landowner (a) as of the date hereof, there are no registered voters residing within the Boundaries of the Community Facilities District, and (b) there have been fewer than 12 registered voters residing within the Boundaries of the Community Facilities District during each of the 90 days preceding the date of the close of the public hearings on the establishment of the Community Facilities District and the proposed debt authorization of the Community Facilities District, which date is the date hereof.
The Landowner hereby acknowledges, confirms 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 authorization of the Community Facilities District, the vote on the ballot proposition to authorize the Community Facilities District to incur bonded indebtedness, to authorize the Community Facilities District to levy the Special Tax and to establish the appropriations limit of 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, confirms and agrees that said vote shall, pursuant to Section 53326(b) of the Act, be by the landowners of the Community Facilities District.
The Landowner hereby requests that the Special Election be held on the date hereof. The Landowner hereby acknowledges, confirms and agrees that the Special Election is being expedited at the particular request of the Landowner.
The Landowner hereby requests that the Special Election be conducted using mailed or hand-delivered ballots, that such ballots be opened and canvassed at the Special Election and that the results of the Special Election be certified at the meeting of the City Council being held on the date hereof.
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4. Consents and Waivers. The Landowner hereby acknowledges, confirms and agrees that if the Special Election is held on the date hereof, the Special Election will be held less than 90 days after the close, on the date hereof, of the public hearings on the establishment of the Community Facilities District and the proposed debt authorization of the Community Facilities District. The Landowner hereby acknowledges, confirms 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 the Special Election, including any time limit or requirement applicable to any 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 the Special Election (other than the right to have ballots accurately counted), including any time limit or requirement applicable to any 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, 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 acknowledges, confirms and agrees that, as the Special Election vote is to be by the landowners of the Community Facilities District, any impartial analysis, arguments or rebuttals, if any, with respect to the Special Election may, pursuant to Section 53327(b) of the Act, be waived with the unanimous consent of all the landowners of the Community Facilities District. The Landowner hereby consents to the waiver of, and hereby waives, the requirements of Section 53327(a) of the Act 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 (the "Elections Code"), and arguments and rebuttals, if any, pursuant to Sections 9162 to 9167, inclusive, and Section 9190 of the Elections Code or pursuant to Sections 9281 to 9287, inclusive, and Section 9295 of the Elections Code, or pursuant to Sections 9501 to 9507, inclusive, of the Elections Code, or pursuant to other provisions of law applicable to other special districts as appropriate.
The Landowner hereby waives any and all defects in notice or procedure in any proceedings to establish the Community Facilities District, to authorize the Community Facilities District to levy the Special Tax and to authorize the Community Facilities District to incur bonded indebtedness, or in the conduct of the Special Election, whether known or unknown.
The Landowner hereby waives all requirements as to the form and content of the Ballot and the Ballot measure for the Special Election, including, without limitation, all requirements that the Ballot measure be condensed, abbreviated or summarized in the Ballot, the requirements in Section 9051 of the Elections Code, the requirements in Section 13119(b) of the Elections Code that the Ballot measure include the amount of money to be raised annually from the Special Tax and the rate and duration of the Special Tax, the provisions of the Taxpayer Protection and Government Accountability Act that would, if enacted, require that the Ballot measure include the type and amount or rate of the Special Tax, the duration of the Special Tax and the use of revenue derived from the Special Tax; provided, however, that, notwithstanding the foregoing, the Landowner is not waiving, and does not waive, the requirement in Section 13247 of the Elections 5 4151-4296-1486.2
Code that the Ballot label be followed with the words "Yes" and "No" or the requirements in subsections (a), (c) or (d) of Section 13119 of the Elections Code.
The Landowner hereby waives all requirements as to the preparation, printing and delivery of election materials for the Special Election (other than delivery of the Ballot to each voter as provided in the Act) and the form and content of such election materials, including, without limitation, that a fiscal impact report or statement be prepared, delivered or referenced, that a voter information guide or pamphlet be prepared, printed, delivered or made available and that the full Ballot measure be printed in materials, other than the Ballot, delivered or made available to voters.
The Landowner hereby waives its right to make any protest or complaint or to undertake any legal action challenging the validity of the Special Election.
5. Landowner Fully Informed; Waivers Knowing, Intelligent and Voluntary. The Landowner's request, pursuant to the Petition, that the Community Facilities District be established, that the boundaries of the territory included in the Community Facilities District be the Boundaries of the Community Facilities District, that the territory in the Community Facilities District include the Property (which is real property owned by the Landowner), that the Community Facilities District be authorized to levy the Special Tax, that an appropriations limit of the Community Facilities District be established, that the Community Facilities District be authorized to incur bonded indebtedness in a maximum amount of $24,000,000, that the facilities to be financed by the Community Facilities District be the Facilities and that the services to be financed by the Community Facilities District be the Services, evidences, and the Landowner hereby represents and confirms, that the Landowner was in possession of such information and knowledge as it deemed necessary or appropriate with respect to such matters. The Landowner hereby represents and confirms that it is fully informed with respect to such matters, has a thorough understanding thereof and fully understands the consequences thereof.
The Landowner hereby acknowledges, confirms and agrees that that the Landowner and representatives thereof, including its financial advisor and legal counsel, received, reviewed, participated in discussions regarding, and provided comments and input on the documents and instruments constituting the proceedings to establish the Community Facilities District, to authorize the Community Facilities District to levy of the Special Tax, to authorize the Community Facilities District to incur bonded indebtedness and to establish an appropriations limit of the Community Facilities District, including, without limitation, the Petition, the Resolution of Intention, the Resolution Declaring Necessity, the Resolution of Formation, the Resolution Deeming Necessity, the Rate and Method, this Certificate, the Resolution Calling Election, the form of the Ballot, the description of the Facilities and Services to be financed by the Special Tax and the Special Tax analysis prepared by the Landowner's financial advisor.
The Landowner hereby represents and confirms that, by virtue of the Landowner and representatives thereof, including its financial advisor and legal counsel, having received, reviewed, participated in discussions regarding and provided comments and input on the documents and instruments constituting the proceedings to establish the Community Facilities District, to authorize the Community Facilities District to levy of the Special Tax, to authorize the Community Facilities District to incur bonded indebtedness and to establish an appropriations limit of the Community Facilities District, and the Landowner's and such representatives' independent 6 4151-4296-1486.2
inquiries, investigations and research with respect thereto, the Landowner is in possession of such information and knowledge with respect to such matters as it has deemed necessary or appropriate.
The Landowner hereby represents and confirms that it is fully informed with respect to such matters, has a thorough understanding thereof and fully understands the consequences thereof.
The Landowner hereby acknowledges, confirms and agrees (a) that the Rate and Method was set forth in the Petition, the Resolution of Intention and the Resolution of Formation, and (b) that the Rate and Method contains detailed provisions specifying (i) the type of the Special Tax (a special tax) and the amount or rate of the Special Tax to be levied on each parcel of property in the Community Facilities District, (i) the duration of the Special Tax (the fiscal year after which the Special Tax would no longer be levied), and (iii) the use of the revenue derived from the Special Tax (to pay costs of Facilities, or debt service on debt issued to pay costs of Facilities, to pay costs of Services, to pay administrative costs and to pay or provide for other related costs or expenses).
The Landowner hereby acknowledges, confirms and agrees that by virtue of the Ballot's reference to the Resolution of Formation, which sets forth the Rate and Method, and by virtue of the Landowner and representatives thereof, including its financial advisor and legal counsel, receiving, reviewing, participating in discussions regarding and providing comments and input on the Rate and Method, the Landowner has such information and knowledge about the matters described in clause (b) of this paragraph that is at least equal to that it would have had if such matters had been set forth in the Ballot, as the Taxpayer Protection and Government Accountability Act, if enacted, would require.
The Landowner hereby represents and confirms that it has obtained, and is in possession of, such information and knowledge with respect to the Landowner's representations, warranties, acknowledgements, confirmations, agreements, consents and waivers contained in this Certificate as it has deemed necessary or appropriate. The Landowner hereby represents and confirms that it is fully informed with respect to such representations, warranties, acknowledgements, confirmations, agreements, consents and waivers and fully understands the consequences thereof.
The Landowner hereby represents and confirms that each such waiver by the Landowner is a knowing, intelligent and voluntary waiver.
6. Authorized Representative. The Landowner hereby states and confirms (a) that the undersigned, Bryan T. Goodman, is an authorized representative of the Landowner and has been uly authorized by the Landowner to execute such documents and instruments on behalf of th andowner as are necessary or appropriate in connection with the Special Election, including thi Certificate and the Ballot envelope, and (b) that the signature set forth opposite the name of the undersigned is the genuine signature of such person:
Name Signature
Bryan T. Goodman furt aren
7. Mailing Address. The address of the Landowne r receiving notices and ballots is:
Vorth Fontana Investment Company, LL.C, c/o Lewis Management Corp., 1156 North Mountair Avenue, Upland, California 91786, Attention: Stacey Sassaman, Vice President [Remainder of page intentionally left blank.]
7 4151-4296-1486.2
This Certificate of Acknowledgements, Representations, Warranties, Consents and Waivers is dated May 14, 2024.
NORTH FONTANA INVESTMENT
COMPANY, LLC,
a Delaware limited liability company
Am. Sevelm
Bryan T. Goodman, Authorized Agent
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EXHIBIT A
DESCRIPTION OF PROPERTY
The Property consists of San Bernardino County Assessor Parcel Numbers 1118-401-01 and 1118-401-02 more particularly described as follows:
Lot 1 and Lot 2 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).
A-1
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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 San Bernardino County Assessor Parcel Numbers 1118-401-01, 1118-401-02, 1118-421-01 and 1118-441-01 more particularly described as follows:
Lots 1 through 4, inclusive, 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).
B-1
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confermed copy
PROPOSED BOUNDARIES OF CITY OF FONTANA COMMUNITY FACILITIES DISTRICT NO. 113 (THE GARDENS PHASE TWO
COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA
.%. DUNCAN CANYON ROAD LEGAL DESCRIPTION:
THESE DID COAR TES ARE OF CANO, A CAR LET AURE DESIRE A 1IS ME GARDENS
OD BOUNDARY
TRACT NO. TRACT NO.
20362 20362
LOT 1 LOT 2
BASIS OF BEARINGS
TACT SAP NO. 20196 M8 3519, ASO BENO ME CONTRE OF SERRA ANEME BONG MOOS% POR
LOD BUADAPY CMY CLERK'S CERTIFICATE
FEED N THE OFFICE OF THE OT LEAK CE ME OTE OF TONTARA TAS. 9th DAY or April
COTO BUNGARY CASSAVA DRIVE
Christina Rudsell, Deputy Lity Clerk
TRACT NO: 20362 DAY OFteril 2024, BY ITS RESOLUTON NO
JARDENS STREET CITY CLERK, CITY OF FONTANA
Christins Rudseri, Depuly lity Merk
SAN BERNARDINO COUNTY RECORDER'S CERTIFICATE
-OTO DOUMOARY MS WAP HAS BEEN FRED LINDER DOCUMENT MUMSER 2024-00812he CYPRESS AVENUE -. AT THE REQUEST OF THE CITY OF FONTANA TRACT NO.
LOT 4
FIELDCRESS DRIVE
BE DEPUTY RECORDER
MONTELENA ROAD
CALE: I' = 200"
PROPOSED BOUNDARIES OF CITY OF FONTANA
-CASi GRANDE AVENUE PREPARED Br
engintering consultants 10F1
EXHIBIT C
FACILITIES AND SERVICES TO BE FINANCED
Facilities
The types of public facilities to be financed by the Community Facilities District are streets, recreational facilities, water distribution, treatment and storage facilities, and land, rights-of-way Services
The types of City services to be financed by the Community Facilities District are fire protection and suppression services, maintenance and lighting of parks, parkways, streets, roads and open space, flood and storm protection services and maintenance and operation of any real property or other tangible property with an estimated useful life of five or more years that is owned by the City.
C-1
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