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HomeMy WebLinkAbout06-321 - Resolutions RESOLUTION NO. 06-321 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, APPROVING THE FORMS OF JOINT COMMUNITY FACILITIES FINANCING AGREEMENTS BY AND BETWEEN THE CITY OF RANCHO CUCAMONGA AND THE CUCAMONGA VALLEY WATER DISTRICT AND THE INLAND EMPIRE UTILITIES AGENCY PERTAINING TO COMMUNITY FACILITIES DISTRICT NO. 2006-01 (VINTNER'S GROVE) WHEREAS, the CITY COUNCIL of the CITY OF RANCHO CUCAMONGA, CALIFORNIA (the "City Council"), has initiated proceedings to create a Community Facilities District pursuant to the terms and provisions of the "Mello-Roos Community Facilities Act of 1982", being Chapter 2.5, Part 1, Division 2, Title 5 of the Government Code of the State of California (the "Act") for the purpose of providing for the financing of the acquisition of certain public facilities. This Community Facilities District shall hereinafter be referred to as COMMUNITY FACILITIES DISTRICT NO. 2006-01 (VINTNER'S GROVE) (the "District"); and, WHEREAS, included among the public facilities proposed to be acquired are certain public facilities which will be owned, operated and maintained by the Cucamonga Valley Water District ("CVWD") or the Inland Empire Utilities Agency ("IEUA" and together with CVWD, the "Public Agencies"); and, WHEREAS, the Act provides that the District may finance the acquisition of facilities to be owned or operated by an entity other than the City of Rancho Cucamonga (the "City") only pursuant to a Joint Community Facilities Agreement adopted pursuant to Government Code Section 53316.2; and WHEREAS, Government Code Section 53316.2 provides that the City Council and the legislative bodies of the Public Agencies may enter into separate Joint Community Facilities Agreements at any time prior to the adoption by the City Council of the resolution of formation creating the District if each legislative body declares that such Joint Community Facilities Agreement would be beneficial to the residents of each respective agency; and WHEREAS, the legislative body of each of the Public Agencies has approved the applicable form of Joint Community Facilities Agreement and thereby declared that such Joint Community Facilities Agreement would be beneficial to the residents of the applicable Public Agency; and WHEREAS, the form of each Joint Community Facilities Agreement by and between the City and each of the Public Agencies have been presented to this City Council for its consideration. SECTION 1: RECITALS. The above recitals are all true and correct. Resolution No. 06-321 Page 2 of 16 SECTION 2: DECLARATION. The City Council hereby declares that each of the Joint Community Facilities Agreements would be beneficial to the residents of the City. SECTION 3: APPROVAL OF JOINT COMMUNITY FACILITIES AGREEMENTS. The forms of each Joint Community Facilities Agreement as presented to this City Council and on file with the City Clerk is hereby approved. The City Manager or such other official of the City as may be designated by the City Manager (an "Authorized Officer"), acting for and on behalf of the District, is hereby authorized and directed to execute and deliver each Joint Community Facilities Agreement subject to such additions or changes therein as such Authorized Officer shall deem to be in the best interests of the District following consultation with and review by the City Attorney and Best Best & Krieger LLP, the District's bond counsel. Please see the following page for formal adoption,certification and signatures Resolution No. 06-321 Page 3 of 16 PASSED, APPROVED, AND ADOPTED this 18th day of October 2006. AYES: Alexander, Gutierrez, Michael, Spagnolo, Williams NOES: None ABSENT: None ABSTAINED: None William J. Alexa der-May-or ATTEST: Kath yi n L. Scott, CMC, Secretary I, KATHRYN L. SCOTT, DEPUTY SECRETARY, of the City of Rancho Cucamonga, California, do hereby certify that the foregoing Resolution was duly passed, approved and adopted by the City Council of the City of Rancho Cucamonga, California, at a Regular Meeting of said City Council held on the 18th day of October 2006. Executed this 19`h day of October 2006, at Rancho Cucamonga, California. Kath n L. Scott, CMC, Secretary Resolution No. 06-321 Page 4 of 16 JOINT COMMUNITY FACILITIES AGREEMENT BETWEEN CITY OF RANCHO CUCAMONGA AND CUCAMONGA VALLEY WATER DISTRICT COMMUNITY FACILITIES DISTRICT NO. 2006-01 (VINTNER'S GROVE) THIS JOINT COMMUNITY FACILITIES AGREEMENT, dated as of October _ 2006, is entered into by and between CITY OF RANCHO CUCAMONGA, a municipal corporation (the "City") and CUCAMONGA VALLEY WATER DISTRICT, a county water district (the "Water District"). RECITALS : (a) The City Council of the City, at the request of William Lyon Homes, Inc. as the owner (the "Owner") of certain property in the City and Water District located generally north of 261' Street and south of Arrow Route, between Center Avenue and Haven Avenue in the City and more particularly described in Exhibit A attached hereto and incorporated herein by this reference (the "Property"), has initiated proceedings to establish a community facilities district pursuant to 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 Government Code (the "Mello-Roos Act") to include the Property for the purpose of financing the construction of certain public facilities to be owned by various public entities (the "Public Facilities") necessary to serve new development within the Property (the "Project"). Such community facilities district has been designated as City of Rancho Cucamonga Community Facilities District No. 2006-01 (Vintner's Grove) (the "CFD"). The City has also initiated proceedings proposing to authorize the issuance of bonds to be secured by the levy of special taxes within the CFD in an amount expected to be sufficient to finance the acquisition or construction of the Public Facilities. (b) The Owner has requested that certain water and sewer facilities to be owned and operated by the Water District and which are necessary to provide water and sewer service to the Project be included among the Public Facilities to be financed by the CFD. The Water District, as the public agency responsible for providing water and sewer service to the Project, and the Owner have agreed that the Owner will construct or cause the construction of such water and sewer facilities (the "Owner Constructed Water District Facilities"), all as described in Exhibit B attached hereto and incorporated herein by this reference. (c) The Water District levies and collects water and sewer capacity fees (collectively, the "Water District Capacity Fees") as a condition precedent to the approval of new development within the Water District, including the Project, to finance the construction of the water and sewer facilities and the acquisition of capacity in existing facilities (the "Water District Capacity Facilities" and, together with the Owner Constructed Water District Facilities, the "Water District Facilities") described in Exhibit B necessary to provide capacity in the Water District's water and sewer systems to serve such new development. The Owner has requested that the CFD 1 Resolution No. 06-321 Page 5 of 16 finance the construction and acquisition of the Owner Constructed Water District Facilities and the construction and acquisition of the Water District Capacity Facilities that would otherwise be financed with the proceeds of the Water District Capacity Fees. (d) The Water District also collects fees (the "Agency Capacity Fees") for and on behalf of the Inland Empire Utilities Agency, a municipal water district (the "Agency"), which are required by the Agency as a condition precedent to the approval of new development within the Agency, including the Project, to finance regional wastewater treatment facilities (the "Agency Capacity Facilities") necessary to provide the treatment capacity within the Agency's wastewater treatment facilities to serve such new development. The Owner has requested that the CFD finance the Agency Capacity Facilities that would otherwise be funded with the proceeds of the Agency Capacity Fees. (e) The City desires to assist-the Water District and the Agency by financing through the CFD (i) the acquisition or construction of the Owner Constructed Water District Facilities; (ii) the construction and acquisition of the Water District Capacity Facilities in the approximate amount of$447,000 (representing the estimated amount of the Water District Capacity Fees for the Project) based upon the Water District's 2006 fee schedule for 156 single family homes (the "Water District Capacity Facilities Amount"); and (iii) the construction and acquisition of the Agency Capacity Facilities in the approximate amount of$245,000 based on the Agency's 2006 fee schedule for 156 single family homes (the "Agency Capacity Facilities Amount"). In exchange for the receipt of the Water District Capacity Facilities Amount, the Water District agrees to grant a credit in an amount equal to the funds actually received by the Water District from the bond proceeds of the CFD pursuant to this Agreement in the payment of the Water District Capacity Facilities Amount to be applied against the Water District Capacity Fees charged by the Water District in connection with the development of the Project. In exchange for the receipt of the Agency Capacity Facilities Amount, the Water District will, subject to the approval of the Agency, grant a credit in an amount equal to the funds actually received by the Water District from the bond proceeds of the CFD pursuant to this Agreement in payment of the Agency Capacity Facility Amount to be applied against the Agency Capacity Fees in connection with the development of the Project. (f) The Water District has reviewed the Water District Facilities and represents that the construction of such facilities is required by the Water District as a condition of regulatory approval by the Water District of the development of the Project. (g) Pursuant to Sections 53316.2, 53316.4 and 53316.6 of the Government Code, (i) a community facilities district may finance facilities to be owned or operated by an entity other than the agency that created the community facilities district pursuant to a joint community facilities agreement or a joint exercise of powers agreement adopted pursuant to Section 53316.2; (ii) a party to such an agreement may use the proceeds of any bonds or other indebtedness issued pursuant to the Mello-Roos Act to provide facilities which that party is otherwise authorized by law to provide, even though another party to the agreement does not have the power to provide those facilities; and (iii) no local agency which is a parry to a joint community facilities agreement, other than a city, a county, a city and county, or certain joint powers authorities, shall have primary responsibility for formation of a community facilities district unless it is reasonably 2 Resolution No. 06-321 Page 6 of 16 expected to have responsibility for providing facilities to be financed by a larger share of the proceeds of bonds of the community facilities district created pursuant to the agreement than any other local agency. (h) The purpose of this Agreement is to set forth the understandings of the parties with respect to the establishment of the CFD, the authorization of bonded indebtedness and the sale of bonds for the CFD, and the allocation of a portion of the proceeds of the sale of such bonds for the acquisition or construction of the Owner Constructed Water District Facilities, the Water District Capacity Facilities and the Agency Capacity Facilities. (i) The City and the Water District have each determined that entering into a joint community facilities agreement to enable the CFD to finance the acquisition or construction of the Owner Constructed Water District Facilities, the Water District Capacity Facilities and the Agency Capacity Facilities will be beneficial to the residents of the City and the Water District respectively, and, therefore, desire to enter into this joint community facilities agreement pursuant to Government Code Section 53316.2. NOW, THEREFORE, in consideration of the preceding recitals and the mutual covenants hereinafter contained, the parties agree as follows: 1. Formation Proceedings; Responsibility. The City Council of the City shall have the jurisdiction to and shall be solely responsible for conducting proceedings pursuant to the Mello- Roos Act for the establishment of the CFD. The City Council shall also have the jurisdiction to and shall be solely responsible for conducting proceedings pursuant to the Mello-Roos Act to authorize the CFD to incur a bonded indebtedness for the purpose of financing the acquisition or construction of the Public Facilities, including the Water District Facilities and the Agency Capacity Facilities. The City Council of the City, acting as the legislative body of the CFD, shall have the sole discretion to establish the terms and conditions for and approve the issuance of bonds for the CFD. The Water District is not directly or indirectly approving or responsible in any way whatsoever for the formation of the CFD, the authorization for the levy of special taxes within the CFD or the issuance of bonds for the CFD. The Water District shall not be responsible in any way whatsoever for the costs of formation of the CFD. 2. Issuance of Bonds. Upon completion of the proceedings for the establishment of the CFD and the authorization of bonded indebtedness, the CFD shall proceed to issue and sell a series of bonds of the CFD in an aggregate principal amount which shall not exceed $5,800,000 for the purpose of providing funding for financing the design, construction and acquisition of Public Facilities, including the Water District Facilities and the Agency Capacity Facilities. The CFD shall proceed with the issuance and sale of such bonds if and when it is determined, in the sole discretion of the CFD, that all of the conditions which must be satisfied in connection with 3 Resolution No. 06-321 Page 7 of 16 the issuance and sale of bonds of a community facilities district such as the CFD, including the requirements of Section 53345.8 of the Government Code and the goals and policies of the City with respect to community facilities districts, have been satisfied. In making such determination, the City shall be guided by the advice of its bond counsel and financial advisor and the underwriter of the bonds. 3. The Owner Constructed Water District Facilities. (a) Plans and Specifications. The parties agree that the Owner shall be responsible for preparing or causing the preparation of the plans and specifications for the construction of the Owner Constructed Water District Facilities (the "Owner Constructed Water District Facilities Plans and Specifications"). The Owner Constructed Water District Facilities Plans and Specifications shall conform to the requirements of the Water District for such facilities and shall be subject to the review and approval by the Water District. (b) Construction and Inspection of the Owner Constructed Water District Facilities. The parties agree that the Owner shall be responsible for constructing or causing the construction of the Owner Constructed Water District Facilities, the acquisition of which will be financed by the CFD. Neither the City nor the Water District will be responsible for constructing or causing the construction of the Owner Constructed Water District Facilities. The construction of the Owner Constructed Water District Facilities shall be subject to inspection by the Water District. The Owner Constructed Water District Facilities must be constructed in accordance with the Owner Constructed Water District Facilities Plans and Specifications as approved by the Water District and the policies and requirements of the Water District applicable to such construction. The Water District shall notify the Water District and the City when the Owner Constructed Water District Facilities have been completed in accordance with the Owner Constructed Water District Facilities Plans and Specifications and are ready for acceptance by the Water District. . The City, the CFD, and the Water District understand and agree that (i) Owner Constructed Water District Facilities will be constructed prior to the issuance of the bonds by the CFD, a portion of the proceeds of which will be used to reimburse the Owner for the Owner Constructed Water District Facilities; (ii) the Owner may submit payment requests for Owner Constructed Water District Facilities in an amount that exceeds the portion of the bond proceeds allocated for the Owner Constructed Water District Facilities; (iii) all payment requests submitted by the Owner will be inspected and reviewed in the manner set forth in this Agreement; and (iv) the City, the CFD, and the Water District have no obligation to pay the Owner for any costs or expenses related to Owner Constructed Water District Facilities that exceed the portion of bond proceeds allocated thereto. The Owner Constructed Water District Facilities will be purchased by the Water District solely from the portion of the proceeds of the CFD bonds that is allocated thereto (which shall not include any part of such proceeds that is allocated to the payment of the Water District Capacity Fees or the Agency Capacity Fees). The conveyance of Owner Constructed Water District Facilities to the Water District prior to receipt of the purchase price for such facilities shall not be construed as a dedication or gift, or a waiver of the purchase price for such facilities. 4 Resolution No. 06-321 Page 8 of 16 (c) Ownership of the Owner Constructed Water District Facilities. Upon receipt of written notification from the Water District that the Owner Constructed Water District Facilities have been completed in accordance with the Owner Constructed Water District Facilities Plans and Specifications and are accepted by the Water District, ownership of and title to the Owner Constructed Water District Facilities shall vest in the Water District. The parties agree to execute and deliver to the Water District the documents reasonably necessary to transfer to the Water District such right, title, and interest in and to the. Owner Constructed Water District Facilities and any real property associated with the Owner Constructed Water District Facilities as is appropriate. Upon acceptance of the Owner Constructed Water District Facilities by the Water District, the Water District shall incorporate the Owner Constructed Water District Facilities in the Water District's water or sewer system, as applicable, and the Water District shall thereafter be responsible for the maintenance of the Owner Constructed Water District Facilities in accordance with all applicable Water District maintenance procedures and practices. 4. The Water District Capacity Facilities. (a) Allocation of Bond Proceeds. Upon the issuance and sale of the CFD bonds, the fiscal agent agreement with respect to such bonds shall provide for the delivery by the fiscal agent for the bonds to the Water District of an aggregate amount not to exceed the Water District Capacity Facilities Amount (the "Water District Capacity Facilities Proceeds"). The exact amount of such funds to be transferred to the Water District shall be the net amount of bond proceeds available after allocating the bond proceeds to funding (a) the reserve fund for the bonds and (b) the costs of issuance of the bonds, the costs of formation of the CFD and the cost of the administration of the CFD and the bonds for the first year following the issuance of such bonds. (b) Use of Bond Proceeds Received by the Water District. The Water District agrees that the Water District Capacity Facilities Proceeds will be used to pay for the construction and acquisition of Water District Capacity Facilities, and that any facility constructed or acquired, in whole or in part, using such funds, shall have a useful life of not less than five years and shall, upon completion and acceptance thereof, be owned and operated by the Water District. (c) Credit Against Water District Capacity Fees. Following its receipt of the Water District Capacity Facilities Proceeds pursuant to paragraph 4(a) of this Agreement, the Water District agrees to apply a dollar-for-dollar credit, in the amount thereof, against Water District Capacity Fees otherwise due with respect to the Project. Such credit shall be applied in accordance with the policies and procedures of the Water District. The City and Water District understand that to the extent that the Water District Capacity Facilities Proceeds is less than the Water District Capacity Fees due with respect to the development of the Project that payment of such deficiency shall be required by the Water District as a condition of approval of the development of the Project at the time such Water District Capacity Fees are otherwise due. Any credit for the payment of such Water District 5 Resolution No. 06-321 Page 9 of 16 Capacity Fees shall be applied to the first units of the Project connecting to the Water District's water system, and any deficiency shall be payable by the Owner from the last units of the Project at the time such Water District Capacity Fees are otherwise due. The City further understands and acknowledges that the Water District may, from time to time, increase the amount of the. Water District Capacity Fees. Consequently, nothing in this Agreement shall be interpreted to in any way set or fix the Water District Capacity Fees that will be due in connection with any development, including the Project. Except to the extent a credit is granted pursuant to this paragraph 4(c), it is not the intent of this Agreement to relieve any person or entity of any obligation they would otherwise have with regard to Water District Capacity Fees. Furthermore, the City does not, by this Agreement, assume the obligation to pay any Water District Capacity Fees that it would not otherwise be obligated to pay. 5. The A2encv Capacity Facilities Amount. (a) Allocation of Bond Proceeds. Upon the issuance and sale of the bonds of the CFD, the fiscal agent agreement with respect to such bonds shall provide for the delivery by the fiscal agent for the bonds to the Water District of an amount not to exceed the Agency Capacity Facilities Amount (the"Agency Capacity Facilities Proceeds"). (b) Retention and Transfer of Agency Capacity Facilities Proceeds. The Water . District agrees to retain the Agency Capacity Facilities Proceeds and to transfer such proceeds to the Agency pursuant to the practices and procedures utilized by the Water District in the retention and transfer of Agency Capacity Fees. Investment of the Agency Capacity Facilities Proceeds and the disposition of earnings thereon shall be subject to the approval of the Water District and the Agency. (c) Credit Against Agency Capacity Facilities Fees. Following its receipt of the Agency Capacity Facilities Proceeds pursuant to paragraph 5(a) of this Agreement, the Water District agrees to apply a credit, in the amount thereof, against Agency Capacity Fees otherwise due with respect to the Project. Such credit shall be applied in accordance with the policies and procedures of the Water District and the Agency. The City and the Water District understand that to the extent that the Agency Capacity Facilities Proceeds is less than the Agency Capacity Fees due with respect to the development of the Project that payment of such deficiency shall be required by the Agency and the Water District as a condition of approval of the development of the Project at the time such Agency Capacity Fees are otherwise due. Any credit for the payment of such Agency Capacity Fees shall be applied to the first units of the Project connecting to the Water District's wastewater system, and any deficiency shall be payable by the Owner for which such Agency Capacity Fees are due for the last units of the Project. The City further understands and acknowledges that the Agency may, from time to time, increase the amount of the Agency Capacity Fees. Consequently, nothing in this Agreement shall be interpreted to in any way set or fix the Agency Capacity Fees that will be due in connection with any development, including the Project. 6 Resolution No. 06-321 Page 10 of 16 Except to the extent a credit is granted pursuant to this paragraph 5(c), it is not the intent of this Agreement to relieve any person or entity of any obligation they would otherwise have with regard to Agency Capacity Fees. Furthermore, the City does not, by this Agreement, assume the obligation to pay any Agency Capacity Fees that it would not otherwise be obligated to pay. (d) Obligations Contingent Upon Approval by Agency. The provisions of this paragraph 5 shall become effective only upon the execution of this Agreement by an authorized representative of the Agency, acting for and on behalf of the Agency, acknowledging and consenting to the provisions of paragraph 5 of this Agreement. 6. Investment Earnings. The Water District shall assist the City in complying with the arbitrage rebate requirements of the Internal Revenue Code of 1986, as amended, and the Treasury Regulations which relate thereto, by keeping accurate records of the investment earnings on any and all investments which the Water District may make of the amount of the proceeds of the bonds which are delivered to the Water District pursuant to paragraphs 4(a) and 5(a) of this Agreement, and at the end of each fiscal year shall provide to the City and its consultants such records and documents as they may reasonably request to enable them to determine the nature of any such investments and the interest eamings thereon for purposes of determining whether any portion thereof must be rebated to the United States of America as rebateable arbitrage earnings. 7. Indemnification. The City, acting for and on behalf of itself and the CFD, shall defend, indemnify and hold harmless the Water District, its officers, directors, employees and agents, from and against any and all claims, losses, liabilities, damages, including court costs and reasonable attorneys' fees by reason of, or resulting from, or arising out of(a) the formation of the CFD, (b) the authorization of the levy of special taxes and the issuance of bonds by the CFD, (c) the administration of the CFD and the bonds issued by the CFD, (d) the levy and collection of special taxes by the CFD, (e) the issuance of bonds by the CFD and initial and continuing disclosure related to such bonds and (f) the design and construction of the Public Facilities other than the Water District Facilities. The Water District shall defend, indemnify and hold harmless the City and the CFD, its officers, directors, employees and agents, from and against any and all claims, losses, liabilities, damages, including court costs and reasonable attorneys' fees by reason of, or resulting from, or arising out of the operation and maintenance of the Water District Facilities from and after the date on which the Water District accepts the Water District Facilities. 8. General Standard of Reasonableness. Any provision of this Agreement which requires. the consent, approval, discretion or acceptance of any party hereto or any of their respective employees, officers or agents shall be deemed to require that such consent, approval or acceptance not be unreasonably withheld or delayed, unless such provision expressly incorporates a different standard. 9. Entire Agreement; Amendment. This Agreement and the agreements expressly referred to herein contain all of the agreements of the parties hereto with respect to the matters 7 Resolution No. 06-321 Page 11 of 16 contained herein and no prior or contemporaneous agreement or understandings, oral or written, pertaining to any such matters shall be effective for any purpose. No provision of this Agreement may be modified, waived, amended or added to except by a writing signed by the party against which the enforcement of such modification, waiver, amendment or addition is or may be sought. 10. 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 (72) 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 Rancho Cucamonga 10500 Civic Center Drive Rancho Cucamonga, CA 92029 Attention: City Manager Water District: Cucamonga Valley Water District 10440 Ashford Street Rancho Cucamonga, CA 91729-0638 Attention: General Manager All notices will be deemed to be effective on the date of mailing. In case any party changes its address at which notice is to be received, written notice of such change of address will be given without delay to the other party. 11. Severability. If any provision of this Agreement is held to be illegal or unenforceable by a court of competent jurisdiction, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. 12. Successors and Assigns. Each and all provisions hereof shall be binding on and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and permitted assigns. 13. 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, irrespective of such state's choice-of-law principles. 14. Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by any other party, 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 any other party with the terms of this Agreement thereafter. 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. 8 Resolution No. 06-321 Page 12 of 16 16. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which will constitute one and the same instrument. 17. Construction of Agreement. This Agreement has been reviewed by legal counsel for both the City and the Water District and shall be deemed for all purposes to have been jointly drafted by the City and the Water District. No presumption or rule that ambiguities shall be construed against the drafting party shall apply to the interpretation or enforcement of this Agreement.. The language in all parts of this Agreement, in all cases, shall be construed as a whole and in accordance with its fair meaning and not strictly for or against any party and consistent with the provisions hereof, in order to achieve the objectives of the parties hereunder. The captions of the sections and subsections of this Agreement are for convenience only and shall not be considered or referred to in resolving questions of construction. 18. No Obligation to Form CFD or Construct Water District Facilities or Agency Capacity Facilities. The Water District acknowledges that the decision of the City Council of the City to form the CFD or to include any particular improvement or activity among the improvements to be financed by the CFD is a legislative action and the City may not enter into an agreement to obligate the City Council to exercise its legislative discretion in a particular manner or for a particular result. This Agreement does not, therefore, in any way create a contractual, legal or equitable obligation of or commitment by the City to approve the formation of the CFD or to construct, or cause the construction of, any Water District Facilities or any Agency Capacity Facilities. 19. Termination. This Agreement shall be null and void if the CFD bonds are not sold by the end of the third year following the date of this Agreement or any mutually agreed extension. 20. Entire Agreement. This Agreement contains the. entire agreement of the parties regarding the subject matter of this Agreement and supersedes all prior amendments, understandings and negotiations regarding the same. This Agreement may not be changed, modified, amended or supplemented except by a written instrument signed by both parties to this Agreement. 21. Further Assurances. Each party to this Agreement agrees to execute, acknowledge and deliver such further instruments, and to do all such other acts, as may be necessary or appropriate in order to carry out the purposes and intent of this Agreement. 22. Beneficiaries. The Owner (and its successors and assigns) is a third-party beneficiary of this Agreement. No person or entity, other than the Owner (and its 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 the City,the Water District, and the Owner (and its successors and assigns) any rights, remedies, obligations or liabilities under or by reason of this Agreement. [Remainder of this page intentionally left blank.] 9 Resolution No. 06-321 Page 13 of 16 IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first above written. CITY OF RANCHO CUCAMONGA By: Mayor ATTEST: City Clerk CUCAMONGA VALLEY WATER DISTRICT By: President of the Board of Directors ATTEST: Secretary of the Board of Directors ACKNOWLEDGMENT AND CONSENT The Inland Empire Utilities Agency (the "Agency") hereby acknowledges and consents to the provisions of paragraph 5 of this Agreement. The undersigned represents that he/she is a representative of the Agency and as such is legally authorized to execute this acknowledgement and consent for and on behalf of the Agency. INLAND EMPIRE UTILITIES AGENCY By: Title: 10 Resolution No. 06-321 Page 14 of 16 EXHIBIT "A" DESCRIPTION OF THE PROPERTY That property identified as Assessor's Parcel No. 0209-092-05 on the maps of the Office of the Assessor of the County of San Bernardino. A-1 Resolution No. 06-321 Page 15 of 16 EXHIBIT "B" DESCRIPTION OF FACILITIES WATER DISTRICT FACILITIES Owner Constructed Water District Facilities. • Those water and sewer facilities authorized to be financed from the proceeds of the Water District Capacity Fees. Water District Capacity Facilities. • Those water and sewer facilities authorized to be financed from the proceeds of the Water District Capacity Fees. B-1 S DPUB\W DI V EN\3-.+]-R8-1}}l_J198 i Resolution No. 06-321 Page 16 of 16 EXHIBIT `B" DESCRIPTION OF FACILITIES (VITNER'S GROVE) Owner Constructed Water Facilities Sewer Improvements . Estimated Cost 8"V.C.P. sewer line $2,250 48"manhole 4,500 Adjust sewer manhole to grade 800 AC paving 2,500 Total Sewer Improvements $10,050 Water Improvements Estimated Cost 8"hot tap $3,700 Fire hydrants 6,900 8"detector check service 20,000 2"landscape meter service 1,800 Total Water.Improvements $32,400 Water District Capacity Facilities Water Capacity Fee $446,784 Water Meter&Box Charge 51,480 Sewer Connection Fee 193.284 TOTAL $691,558