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JOINT COMMUNITY FACILITIES AGREEMENT
relating to
Community Facilities District No. 2021-3 (Bridle Ridge) of the City of Riverside by and among
City of Riverside, Western Municipal Water District and Riverside 103, LP
THIS JOINT COMMUNITY FACILITIES AGREEMENT (the “Agreement”) is entered into effective as of the _____ day of _____, 2022, by and among CITY OF RIVERSIDE, a California general law city (the “ City”), WESTERN MUNICIPAL WATER DISTRICT, a public agency organized and exist ing pursuant to Division 20 of the California Water Code (“ WMWD”), and RIVERSIDE 103, LP, a California limited partnership (“Property Owner ”), and relates to the formation by the City of a community facilities district known as “ Community Facilities Distri ct No. 2021-3 (Bridle Ridge) of the City of Riverside” (the “CFD”) for the purpose of financing certain facilities to be owned, operated or maintained by the City or WMWD from proceeds of bonds issued by the CFD and the proceeds of special taxes levied by the CFD. Capitalized terms used in the Agreement that are not defined in this preamble or in the Recitals shall have the meanings given such terms in Section 2 of this Agreement.
R E C I T A L S:
A. The property (“Property”) depicted in Exhibit “A” hereto, which is located in the City, County of Riverside, State of California, constitutes the land within the boundaries of the CFD.
B. Property Owner owns the Property included in the CFD . Property Owner intends to develop the Property for residential purposes. The Property is described in Exhibit “B” hereto.
C. The City received a petition in accordance with the Act (defined below) to form the CFD for the purpose of financing, among other things, certain public facilities to be constructed and owned and operated by WMWD (the “WMWD Facilities”) in lieu of the payment of WMWD Fees (defined herein).
D. In conjunction with the issuance of permits for the construction of homes on the Property and/or receipt of water meters for such homes, the Pr operty Owner, or its successors or assigns, may elect to advance WMWD Facilities costs in lieu of payment of WMWD Fees (the “Advances”) before Bond Proceeds (defined herein) are available in sufficient amounts to pay for WMWD Facilities. In such case, the Property Owner shall be entitled to (i ) reimbursement of such Advances limited to Bond Proceeds available to WMWD, if any (the Advances being considered an interest free loan by the Property Owner with no repayment obligation except to the extent there ar e Bond Proceeds received by or made available to WMWD as described herein, all as further described in Section 5(a) below), and (ii) credit against WMWD Fees which would otherwise be due to WMWD equal to the amount of Bond Proceeds disbursed to WMWD or at the direction of WMWD for WMWD Facilities, all as further described herein.
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E. The City will have sole discretion and responsibility for the formation and administration of the CFD.
F. The City is authorized by Section 53313.5 of the Act to assist in the f inancing of the acquisition and/or construction of the WMWD Facilities . This Agreement constitutes a joint community facilities agreement, within the meaning of Section 53316.2 of the Act, by and among WMWD, the Property Owner and the City, pursuant to wh ich the CFD, when formed, will be authorized to finance the acquisition and/or construction of all or a portion of the WMWD Facilities.
As authorized by Section 53316.6 of the Act, responsibility for constructing, providing for and operating the WMWD Facilities is delegated to WMWD.
G. The Parties (defined below) hereto find and determine that the residents residing within the boundaries of WMWD, the City and the CFD will be benefited by the construction and/or acquisition of the WMWD Facilities and that t his 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:
1. Recitals. Each of the above recitals is incorporated herein and is true and correct.
2. Definitions. Unless the context clearly otherwise requires, the terms defined in this Section shall, for all purposes of this Agreement, have the meanings herein specified. (a) “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.
(b) “Advance” or “Advances” means an amount advanced by Property Owner to WMWD for WMWD Facilities in lieu of payment of WMWD Fees prior to the availability of sufficient Bond Proceeds. Advances shall be deemed payment of WMWD Fees to the extent sufficient Bond Proceeds are not received by or made available to WMWD. (c) “Bond Proceeds ” or “Proceeds of the Bonds ” shall mean those net funds generated by the sale of the Bonds and investment earnings thereon, net of costs of issuance, reserve fund, capitalized interest and administrative expenses, and may include net funds generated by the levy of Special Taxes and investment earnings thereon.
(d) “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.
(e) “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. (f) “Disbursement Request ” means a request for payment relating to WMWD Facilities in the form attached hereto as Exhibit “D.”
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(g) “Other Facilities Account of the Improvement Fund” means the fund, account or subaccount of the CFD (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 WMWD Facilities and which may have subaccounts.
(h) “Party” or “Parties” shall mean any one or all of the parties to this Agreement. (i) “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 undertaken for the formation of the CFD pursuant to the Act.
(j) “Special Taxes” means the special taxes authorized to be levied and collected within the CFD pursuant to the Rate and Method.
(k) “State” means the State of California.
(l) “WMWD Facilities” means those water and sewer facilities listed on Exhibit “C” hereto, which are necessary for the provision of water and sewer services to the Property and paid for with Bond Proceeds in lieu of the payment of WMWD Fees. (m) “WMWD Fees” means water and sewer connection fees and all components thereof imposed by WMWD upon the Property to finance WMWD Facilities. (n) WMWD Representative” means the WMWD General Manager or their designee.
3. Formation of the CFD . The City has undertaken to analyze the appropriateness of forming the CFD to finance the WMWD Facilities and other facilities. The City has and will retain, at the expense of the Property Owner, the necessary consultants to analyze the formation of the CFD.
4. Sale of Bonds and Use of Bond Proceeds . In the event that the CFD is formed and Bonds are issued, the City and the Property Owner shall determine the amount of Bond Proceeds to be deposited in the Other Facilities Account of the Improvement Fund and ea ch subaccount thereof. As Bond Proceeds are transferred to WMWD and reserved to fund WMWD Facilities, as described in Section 5 below, the Property Owner shall receive a credit in the amount transferred against the payment of WMWD Fees with respect to the Property. Nothing herein shall supersede the obligation of an owner of the Property to make an Advance or pay WMWD Fees to WMWD when due. The purpose of this Agreement is to provide a mechanism by which the CFD may issue the Bonds and levy Special Taxes to provide a source of funds to finance WMWD Facilities in lieu of the payment of WMWD Fees. In the event that Bond Proceeds, including investment earnings thereon, are not available or sufficient to satisfy the obligation, then the Property Owner shall remain obligated to make an Advance for which it will receive no reimbursement (except to the extent Bond Proceeds later become available to WMWD), or pay WMWD Fees to WMWD as a condition of receiving water and sewer 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 the City. Nothing in this Agreement shall confer upon WMWD or any owner of the Property, including
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Property Owner, a right to compel the issuance of the Bonds or the disbursement of Bond Proceeds to fund WMWD Facilities except in accordance with the terms of this Agreement.
5. Disbursements for WMWD Facilities.
(a) Upon the funding of the Other Facilities Account of the Improvement Fund with funds reserved to fund WMWD Facilities, the Property Owner shall notify WMWD of the amount of Bond Proceeds reserved to fund WMWD Facilities and the Property Owner and WMWD may execute and submi t a Disbursement Request for payment to the City or the CFD requesting disbursement of an amount equal to all or a portion of Advances from the Other Facilities Account of the Improvement Fund to the extent that Bond Proceeds are available in the Other Fac ilities Account of the Improvement Fund for such purpose . Upon WMWD’s receipt of funds pursuant to such Disbursement Request, the Property Owner shall receive reimbursement of the Advances from WMWD. To facilitate WMWD’s bookkeeping, WMWD may direct in a Disbursement Request, that all or a portion of a payment be made directly from the Other Facilities Account to the Property Owner as reimbursement for Advances made by the Property Owner. In the event of a reimbursement to the Property Owner pursuant to the preceding sentence, WMWD shall account for an equivalent amount of Advances previously received from the Property Owner in accordance with Section 5(c) below.
To the extent that WMWD expends all or a portion of an Advance pending the deposit of Bond Proceeds in the Other Facilities Account of the Improvement Fund, for purposes of Treasury Regulations regarding investment and expenditure of Bond Proceeds and State law provisions regarding financing of public capital facilities, the Advance shall be a considered an interest free loan by the Property Owner, which WMWD only agrees to repay to the extent of the deposit, if any, of Bond Proceeds in the Other Facilities Account of the Improve ment Fund and WMWD’s written direction as described below to pay all or a portion of such deposit to the Property Owner as repayment of an Advance.
(b) From time to time following the funding of the Other Facilities Account of the Improvement Fund, the Property Owner may notify WMWD in writing and the Property Owner and WMWD may jointly request a disbursement from the Other Facilities Account of the Improvement Fund to fund WMWD Facilities by executing and submitting a 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 WMWD 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 WMWD’s receipt of such disbursement, the Property Owner shall be deemed to have satisfied the applicable WMWD Fees with respect to the number of dwelling units or lots for which the WMWD Fees would otherwise have been required in an amount equal to such disbursement. (c) WMWD agrees that prior to submitting a Disbursement Request requesting payment from the CFD it shall review and approve all costs included in its request and will have already paid or incurred such costs of WMWD Facilities from its own funds (which may include Advances from the Property Owner) subsequent to the date of this Agreement, or will disburse such amounts to pay the costs of WMWD Facilities following receipt of funds from the CFD. In the event that WMWD does not disburse any Bond Proceeds (or equivalent amount of Advances repaid pursuant to the second to the last sentence of the first paragraph of Section 5(a) above) received by it to third parties within five banking days of receipt, it will trace and report to the CFD all earnings, if any, earned by WMWD, from the date of receipt of such Bond Proceeds by WMWD (or the date of disbursement pursuant to the second to the last sentence of the first paragraph of Section 5(a) above) to the date of expenditure
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by WMWD for capital costs of the WMWD Facilities . Such report shall be delivered at least semiannually until all Bond Proceeds are expended by WMWD. WMWD agrees that in pro cessing the above disbursements 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) WMWD agrees to maintain adequate internal controls over its payment function and to maintain accounting records in accordance with generally accepted accounting procedures. WMWD will, upon request, provide the City and/or the Property Owner with access to WMWD’s records related to the WMWD Facilities and expenditure of Advances and will provide to the City its annual financial report certified by an independent certified public accountant for purposes of assisting the City in calculating the arbitrage rebate obligation of the CFD, if any. (e) The City or the CFD agrees to maintain ful l and accurate records of all amounts, and investment earnings, if any, expended from the Other Facilities Account of the Improvement Fund and expenditure of Advances . The City or the CFD will, upon request, provide WMWD and/or Property Owner with access to the City ’s or the CFD ’s records related to the Other Facilities Account of the Improvement Fund.
6. Ownership of WMWD Facilities. The WMWD Facilities shall be and remain the property of WMWD.
7. Indemnification.
(a) Indemnification by the City. The City shall assume the defense of, indemnify and save harmless, WMWD, 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 p ut, 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 neglige nce 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, the City, the CFD and WMWD, their respective 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 Property Owner with respect to this Agreement; 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 WMWD. WMWD shall assume the defense of, indemnify and save harmless, the City, the CFD and their respective 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 WMWD with respect to this Agreement, and the design, engineering and construction of the WMWD Facilities constructed by WMWD; provided, however, that WMWD 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.
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8. Allocation of Special Taxes . The entire amount of any Special Taxes levied by the CFD to repay Bonds, or to fund other obligations, shall be allocated to the CFD.
9. Amendment and Assignment. 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 unless and until WMWD and the City have been notified, in writing, of such assignment and the assignment specifies whether the Property Owner or such assignee is authorized to execute disbursement requests.
10. Entire Agreement. This Agreement contains the entire agreement between the Parties with respect to the matters provid ed for herein and supersedes all prior agreements and negotiations between the Parties with respect to the subject matter of this Agreement.
11. Notices. Any notice, payment or instrument required or permitted by this Agreement to be given or delivered to eit her 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 Riverside
3900 Main Street, 6th Floor
Riverside, CA 92522
Attention: Chief Financial Officer/Treasurer
City Legal Counsel: Stradling Yocca Carlson & Rauth
660 Newport Center Drive, Suite 1600
Newport Beach, CA 92660
Attention: Bradley R. Neal, Esq.
WMWD: Western Municipal Water District
14205 Meridian Parkway
Riverside, CA 92518
Attention: General Manager
Property Owner: Riverside 103, LP
Attention:
Each Party may change its address for delivery of notice by delivering written notice of such change of address to the other Parties hereto . Each such notice, statement, demand, consent, approval, authorization, offer, designation, request or other communication hereunder shall be deemed delivered to the party to whom it is addressed (a) if personally served or delivered, upon delivery, (b) if given by electronic communication, whether by telex, telegram or telecopier upon the sender’s receipt of written acknowledgement from the addressee, (c ) if given by registered or certified mail, return receip t requested, deposited with the United States mail postage prepaid, 72 hours after such notice is deposited with the United States mail, (d) if given by overnight courier, with courier charges prepaid, 24 hours after delivery to said overnight courier, or (e) if given by any other means, upon delivery at the address specified in this Section.
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12. Exhibits. All exhibits attached hereto are incorporated into this Agreement by reference.
13. Attorney’s 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 attorney’s fees.
14. Interpretation in the event of Ambiguities or Disputes . The Parties acknowledge and agree that each has been given the opportunity to review this Agreement with legal counsel independently, and/or has the requisite experience and sophistication to underst and, interpret, and agree to the particular language of the provisions hereof . In the event of an ambiguity in or dispute regarding the interpretation of same, the interpretation of this Agreement shall not be resolved by any rule of interpretation providing for interpretation against the Party who causes the uncertainty to exist or against the drafter.
15. Severability. If any part of this Agreement is held to be illegal or unenforceable by court of competent jurisdiction, the remainder of this Agreement sha ll be given effect to the fullest extent reasonably possible.
16. Governing Law. This Agreement and any dispute arising hereunder shall be governed by interpreted in accordance with the laws of the State of California.
17. Waiver. Failure by a Party to insist up on the strict performance of any of the provisions of this Agreement by any other Party hereto, or the failure by a Party to exercise its rights upon the default of any other 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 Agreeme nt (either express or implied) is intended to confer upon any person or entity, other than WMWD, the 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 terms 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.
21. 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. [REMAINDER OF PAGE LEFT BLANK]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year written above.
City: CITY OF RIVERSIDE
By:
Name: Edward Enriquez
Title Chief Financial Officer/City Treasurer
ATTEST:
By:
Donesia Gause
City Clerk of the City of Riverside
APPROVED AS TO FORM:
By:
Stradling Yocca Carlson & Rauth
a Professional Corporation
[SIGNATURES CONTINUED ON NEXT PAGE.]
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WESTERN MUNICIPAL WATER DISTRICT
By:
________________, General Manager
ATTEST:
By:
PROPERTY OWNER
RIVERSIDE 103, LP,
a California limited partnership
By:
Its:
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EXHIBIT “A”
COMMUNITY FACILITIES DISTRICT NO. 2021-3 (BRIDLE RIDGE)
OF THE CITY OF RIVERSIDE
DEPICTION OF PROPERTY
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EXHIBIT “B”
COMMUNITY FACILITIES DISTRICT NO. 2021-3 (BRIDLE RIDGE)
OF THE CITY OF RIVERSIDE
DESCRIPTION OF PROPERTY
City of Riverside, County of Riverside, State of California Tract Map(s):
CFD No. 2021-3 is located in the City of Riverside within Tract No. 32647. .
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EXHIBIT “C”
COMMUNITY FACILITIES DISTRICT NO. 2021-3 (BRIDLE RIDGE)
OF THE CITY OF RIVERSIDE
FACILITIES DESCRIPTION
1. WMWD Facilities. The type of WMWD Facilities eligible to be financed by the CFD under the Act are as follows:
Those water and sewer facilities included in WMWD’s water and sewer capacity and connection fee programs used to finance expansion projects, exclusive of in-tract facilities contributed by Property Owner. WMWD Facilities include, but are not limited to the following: water and sewer transmission pipelines, sewer treatment plants, disposal ponds, pumping plants, lift stations and 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 and appurtenant work relating to the foregoing.
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EXHIBIT “D”
COMMUNITY FACILITIES DISTRICT NO. (2021-3 BRIDLE RIDGE)
OF THE CITY OF RIVERSIDE
DISBURSEMENT REQUEST FORM
(WMWD Facilities)
1. City of Riverside Community Facilities District No. 2021-3 (Bridle Ridge) of the City of Riverside (“CFD”) is hereby requested to pay from the CFD bond proceeds (“Bond Proceeds”) to Western Municipal Water District (“WMWD”), as Payee, or to WMWD’s designee, the sum set forth in 3 below.
2. The undersigned certifies that the amount requested for WMWD Facilities 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 below to the WMWD system.
3. Amount requested: $________________
For Tract/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 Riverside, WMWD and Riverside 103, LP, dated _________, 2022 (the “Agreement”). Capitalized terms not defined herein shall have the meaning set forth in the Agreement . WMWD shall spend the Bond Proceeds allocated hereby in accordance with the requirements set forth in Section 5 of the Agreement.
PROPERTY OWNER
RIVERSIDE 103, LP,
a California limited partnership
By:
WESTERN MUNICIPAL WATER DISTRICT
By:
Name:
Title:
Date:
cc: WMWD Special Funding District