HomeMy WebLinkAboutRes 07-4A 07-4B and 07-4C Section 29 AD 2004-02 RESOLIITION NOS. 07-4, 07-4A, 07-4B, and 07-4C
CITY OF PALM DESERT
STAFF REPORT
REQUEST: CONSIDERATION OF THE FORMATION OF THE CITY OF PALM
DESERT SECTION 29 ASSESSMENT DISTRICT (NO. 2004-02)
SUBMITTED BY: DAVID YRIGOYEN, DIRECTOR OF REDEVELOPMENT/
HOUSING
DATE: JANUARY 11, 2007 M�ET G DATE / ! I�'C��
�
CONTENTS: RESOLUTION NO. 07- 4 -. �������ED T�1 0�� —��
RESOLUTION NO. 07- 4� ❑ PAS5ED TO 2ND RE�BING
RESOLUTION NO. 07- 4B
RESOLUTION NO. 07- 4c
Recommendation:
By Minute Motion, that the City Council:
Adopt one of the following resolutions in connection with the proposed
formation of the Section 29 Assessment District (No. 2004-02):
A. In the case of a maioritv protest in connection with the Section
29 Assessment District, adopt Resolution No. 07- 4 ,
declaring the results of the tabulation of assessment ballots in
connection with the Section 29 Assessment District and
finding a majority protest exists.
B. In the absence of a maioritv protest in connection with the
Section 29 Assessment District, adopt the following
resolutions:
(i) Resolution No. 07- 4A , making certain findings in
connection with proposed City of Palm Desert Section
29 Assessment District (No. 2004-02).
(ii) Resolution No. 07- 4B , approving the Engineer's
Report in connection with City of Palm Desert Section
29 Assessment District (No. 2004-02), confirming the
assessments in connection with such district, ordering
proposed acquisitions and improvements to be made,
approving as to form and authorizing the execution of
and delivery of certain agreements and taking certain
other actions.
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P6401-1033\938120v1.doc
Staff Report
Consideration of the Formation of the City of Palm Desert Section 29 Assessment District
(No. 200402)
Page 2 of 4
January 11, 2006
(iii) Resolution No. 07- �� , making certain designations
in connection with City of Palm Desert Section 29
Assessment District (No. 2004-02).
Discussion:
The owners of certain property located within the Section 29 area of the City of Palm
Desert have requested the City Council to initiate proceedings pursuant to the Municipal
Improvement Act of 1913 to form an assessment district for the purpose of acquiring,
constructing and installing certain public infrastructure improvements, including street,
storm drain, sewer and water improvements.
On November 16, 2006, the City Council adopted a resolution of intention to form the
Section 29 Assessment District and to levy and collect assessments within the district.
On November 16th, the City Council also adopted a resolution p�eliminarily approving
the Engineer's Report prepared by the City's Assessment Engineer, setting a public
hearing on January 11, 2007 and directing that a property owner balloting procedure be
conducted in connection with the proposed formation of the Section 29 Assessment
District. Such resolution also approved procedures for the completion, return and
tabulation of assessment ballots, which are on file in the office of the City Clerk.
The Engineer's Report, among other things, describes (i) the proposed acquisitions and
improvements, (ii) the properties proposed to be subject to the assessment, (iii) the
method of apportionment for calculating each parcel's proportional special benefits from
the acquisitions and improvements; and the (iv) the proposed assessments.
One of the proposed Section 29 Assessment District improvements is the acquisition by
the City of an existing retention basin which currently serves property in Monterey 170
and the improvement and expansion of the basin so that it can also serve certain of the
properties within the proposed Section 29 Assessment District as an alternative to the
developers providing on-site drainage. The City Council is undertaking separate,
concurrent proceedings to form a maintenance assessment district, City of Palm Desert
Benefit Assessment District No. 1, (which includes properties in Monterey 170 and
Section 29) for the purpose of levying annual maintenance assessments against the
benefited properties to provide funding for the ongoing maintenance of the retention
basin after it is acquired by the City. On January 11 th, prior to the public hearing on the
Section 29 Assessment District, the Council will be conducting a public hearing,
tabulating assessment ballots and determining whether a majority protest exists against
the levy of the annual maintenance assessment. In the event of a majority protest
against the maintenance assessment, the City would not have assessment revenues as
a source of funding for the ongoing maintenance of the retention basin.
P6401-1033\938120v1.doc 2
Staff Report
Consideration of the Formation of the City of Palm Desert Section 29 Assessment District
(No. 200402)
Page 3 of 4
January 11, 2006
Formation of the Section 29 Assessment District is subject to the requirements of
Proposition 218. In accordance with these requirements, the City mailed a notice of the
January 11th public hearing, together with an assessment ballot, to the property owners
within the proposed Section 29 Assessment District more than 45 days prior to the date
of the hearing.
At the hearing all interested persons must be given the opportunity to hear and be heard
regarding protests and objections to the formation of the Section 29 Assessment
District, the levy and collection of the proposed assessments, and related matters.
Each ballot is weighted in accordance with the proposed assessment against the parcel
covered by the ballot. In order to be counted, all ballots must be retumed to the City
prior to the close of the public input portion of the Section 29 Assessment District
hearing. If the weighted ballots cast in opposition to the assessment do not exceed the
weighted ballots cast in favor of the assessment (i.e., there is not a majority protest) the
City Council may proceed to form the Section 29 Assessment District, levy the
assessments, and authorize the issuance of bonds to represent unpaid assessments.
The City Clerk and the Assessment Engineer will tabulate the ballots following the close
of the public input portion of the hearing and determine whether or not a majority protest
exists.
In the event of a majority protest, Staff recommends that the City Council adopt
Resolution No. 07- 4 , which declares the results of the tabulation and finds that a
majority protest exists. In the event of a majority protest, proceedings for the formation
of the Section 29 Assessment District, the levy of assessments and the issuance of
bonds will terminate.
In the absence of a majority protest, Staff recommends that the City Council adopt
Resolution Nos. 07- 4A , 07- 4B , and 07- 4C . It is necessary for the City
Council to adopt the above resolutions to continue the process to form the Section 29
Assessment District and to authorize the issuance and sale of improvement bonds for
the Assessment District.
Resolution No. 07- 4A makes a finding with respect to the value of the land in the
proposed Assessment District compared with the amount of the proposed assessments.
As set forth in the Engineer's Report, the proposed assessments do not exceed one-
half of the total value of the parcels proposed to be assessed.
Resolution No. 07- 4B finally approves the Engineer's Report, confirms the assessment
for the cost of the acquisitions and improvements and the annual $50.00 administrative
assessment, orders the proposed acquisitions and improvements to be made, and
approves the form of certain agreements and authorizes their execution (including an
agreement for the City to purchase the retention basin, an agreement with the Palm
P6401-I 033\938 I 20v I.doc 3
Staff Report
Consideration of the Formation of the City of Palm Desert Section 29 Assessment District
(No. 200402)
Page 4 of 4
January 11, 2006
Springs Unified Schoof District with respect to a contribution of funds by the School
District and an acquisition agreement with respect to the acquisition of certain
improvements that have already been completed). Resolution No. 07-_ also directs
that notices of the assessment be mailed, published and reco�ded in accordance with
law. Following adoption of Resolution No. 07- , property owners will have a 30-day
cash collection period in which to pay all or a part of their assessments in cash at a
discounted amount (because certain financing costs, such as underwriter's discount,
would not be applicable). At a subsequent Council meeting, the City may consider a
resolution authorizing the issuance of improvement bonds to represent those
assessments, which remain unpaid after the end of the 30-day cash collection period.
Resolution No. 07- appoints financing professionals, such as the underwriters, the
financial advisor, bond counsel and disclosure counsel, in connection with the proposed
issuance of bonds.
Submitted by: Approval:
� y� .
avid Yrigoye sti Mc arthy
Director of evelopment/Housing AC Redevelopme t
DY:AKS:mh
Approval:
, ��
Carlos L. O a, City Manager Paul S. Gibson, Director of Finance
P6401-1033\938120v I.doc 4
RESOLUTION NO. 07- 4
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF PALM DESERT DECLARING THE RESULTS OF THE
TABULATION OF ASSESSMENT BALLOTS IN CONNECTION
WITH PROPOSED CITY OF PALM DESERT SECTION 29
ASSESSMENT DISTRICT (NO. 2004-02) AND FINDING THAT A
MAJORITY PROTEST EXISTS
THE CITY COUNCIL OF THE CITY OF PALM DESERT HEREBY FINDS,
DETERMINES, RESOLVES AND ORDERS AS FOLLOWS:
Section 1. The City Council, by its Resolution No. 06-151, (the "Resolution of Intention")
declared its intention to order acquisitions and improvements for proposed City of Palm Desert
Section 29 Assessment District (No. 2004-02) (the "Assessment District") pursuant to the
provisions of the Municipal Improvement Act of 1913 (California Streets and Highways Code
Section 10000, et sg.) (the "1913 Act") and as provided in Article XIIID of the California
Constitution and to comply with the requirements of Division 4 of the California Streets and
Highways Code by proceeding under Part 7.5 thereof, and ordered the Assessment Engineer,
Wildan and MuniFinancial, (the "Assessment Engineer") to prepare and file a report with the City
Clerk in accordance with Section 10204 of the 1913 Act and Section 4 of Article XIIID of the
California Constitution and containing the information required by Section 2961 of the California
Streets and Highways Code.
Section 2. The City Council, by its Resolution No. 06-152, (the "Resolution"),
preliminarily approved a report entitled "City of Palm Desert, Preliminary Engineer's Report Section
29 Assessment District No. 2004-02" (the "Engineer's Report") prepared by the Assessment
Engineer in connection with the Assessment District, which Engineer's Report is on file in the office
of the City Clerk and available for public inspection and further setting the time and place for a
hearing on the proposed assessments described in the Engineer's Report (the "Assessment').
Section 3. The Resolution directed the City Clerk to give notice in accordance with law of
a public hearing on the Assessment and to include with such notice the assessment ballot
required pursuant to Article XIIID, Section 4 of the California Constitution and Section 53753 of
the California Government Code.
Section 4. On January 11, 2007, following notice duly given in accordance with law, the
City Council held a full and fair public hearing on the Resolution of Intention, the Engineer's
Report, the levy and collection of the proposed Assessments and the proposed acquisitions and
improvements in connection with the Assessment District and protests and objections thereto
(the "Hearing").
Section 5. At the Hearing, (i) all interested persons were afforded the opportunity to
hear and be heard regarding protests and objections to the formation of the Assessment District
and the levy and collection of the proposed Assessments, and all related matters, and (ii) the
City Council heard and considered all oral and written protests.
Section 6. The City Clerk, together with such assistants as she deemed necessary,
tabulated all properly completed and returned assessment ballots submitted and not withdrawn
in connection with the Assessments.
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RESOLUTION 0. 07-4
Section 7. The City Council hereby finds and determines that (i) a majority protest
exists as defined in Section 4(e) of Article XIII D of the California Constitution, and (ii) the City
Council shall not form the Assessment District as described in the Resolution of Intention.
RESOLUTION NO. 07- 4
PASSED, APPROVED, AND ADOPTED THIS 11th DAY OF JANUARY 2007.
STATE OF CALIFORNIA
COUNTY OF RIVERSIDE ss.
CITY OF PALM DESERT
I, Rachelle D. Klassen, City Clerk of the City of Palm Desert, County of Riverside, State of
California do hereby certify that the foregoing Resolution No. 07- 4 was regularly adopted by
the City Council of said City of Palm Desert at a regular meeting of said council held on the 11th
day of January 2007 by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAINED:
Richard S. Kelly, Mayor
City of Palm Desert
Rachelle D. Klassen, City Clerk
City of Palm Desert
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RESOLUTION NO. 07- ��
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM DESERT MAKING CERTAIN FINDINGS IN CONNECTION
WITH PROPOSED CITY OF PALM DESERT SECTION 29
ASSESSMENT DISTRICT (NO. 2004-02)
THE CITY COUNCIL OF THE CITY OF PALM DESERT HEREBY
FINDS, DETERMINES, RESOLVES AND ORDERS AS FOLLOWS:
Section 1. The City Council, by its Resolution No. 06-151 (the
"Resolution of Intention"), declared its intention to order acquisitions and
improvements for proposed City of Palm Desert Section 29 Assessment District
(No. 2004-02) (the "Assessment District") pursuant to the provisions of the
Municipal Improvement Act of 1913 (California Streets and Highways Code
Section 10000, et seg.) (the "1913 Act") and as provided in Article XIIID of the
California Constitution and to comply with the requirements of Division 4 of the
California Streets and Highways Code by proceeding under Part 7.5 thereof, and
ordered the Assessment Engineer, Wildan and MuniFinancial (the "Assessment
Engineer"), to prepare and file a report with the City Clerk in accordance with
Section 10204 of the 1913 Act and Section 4 of Article XIIID of the California
Constitution and containing the information required by Section 2961 of the
California Streets and Highways Code.
Section 2. The City Council, by its Resolution No. 06-152, preliminarily
approved a report entitled "City of Palm Desert, Preliminary Engineer's Report
Section 29 Assessment District No. 2004-02," (the "Engineer's Report") prepared
by the Assessment Engineer in connection with the Assessment District, which
Engineer's Report is on file in the office of the City Clerk and available for public
inspection.
Section 3. Based upon its review of the Engineer's Report and other
reports and information presented to it, the City Council hereby finds and
determines that the total amount of the principal sum of all unpaid special
assessments levied against the parcels proposed to be assessed within the
Assessment District (being the total amount, as determined and set forth in such
Engineer's Report of the total principal sum of all unpaid special assessments
and special assessments required or proposed to be levied under any completed
or pending assessment proceedings, other than that contemplated in the
proceedings for the Assessment District, which would require an investigation
and report under Streets and Highways Code Section 2800, et se�c., against the
total area proposed to be assessed within the Assessment District), plus the
principal amount of the special assessment proposed to be levied in the
proceedings, do not exceed one-half of the total value of the parcels proposed to
be assessed within the Assessment District (being the total true value as shown
upon the last equalized assessment roll of the County of Riverside).
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RESOLUTION NO. 07- 4A
PASSED, APPROVED, AND ADOPTED THIS 11T" DAY OF JANUARY 2007.
STATE OF CALIFORNIA
COUNTY OF RIVERSIDE ss.
CITY OF PALM DESERT
I, Rachelle D. Klassen, City Clerk of the City of Palm Desert, County of Riverside,
State of California do hereby certify that the foregoing Resolution No. 07- 4A was
regularly adopted by the City Council of said City of Palm Desert at a regular
meeting of said council held on the 11�' day of January 2007 by the following
vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAINED:
Richard S. Kelly, Mayor
City of Palm Desert
Rachelle D. Klassen, City Clerk
City of Palm Desert
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RESOLUTION NO. 07- 4B
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM DESERT APPROVING THE ENGINEER'S REPORT IN
CONNECTION WITH CITY OF PALM DESERT SECTION 29
ASSESSMENT DISTRICT (NO. 2004-02), CONFIRMING THE
ASSESSMENTS IN CONNECTION WITH SUCH DISTRICT,
ORDERING PROPOSED ACQUISITIONS AND IMPROVEMENTS
TO BE MADE, APPROVING AS TO FORM AND AUTHORIZING
THE EXECUTION AND DELIVERY OF CERTAIN AGREEMENTS
AND TAKING CERTAIN OTHER ACTIONS
THE CITY COUNCIL OF THE CITY OF PALM DESERT HEREBY FINDS,
DETERMINES, RESOLVES, AND ORDERS AS FOLLOWS:
Section 1. The City Council, by its Resolution No. 06-151 (the "Resolution of
Intention"), declared its intention to order acquisitions and improvements for proposed
City of Palm Desert Section 29 Assessment District (No. 2004-02) (the "Assessment
District") pursuant to the provisions of the Municipal Improvement Act of 1913
(California Streets and Highways Code Section 10000, et se�c.) (the "1913 Act") and as
provided in Article XIIID of the California Constitution and to comply with the
requirements of Division 4 of the California Streets and Highways Code by proceeding
under Part 7.5 thereof, and ordered the Assessment Engineer, Wildan and
MuniFinancial ( the "Assessment Engineer"), to prepare and file a report with the City
Clerk in accordance with Section 10204 of the 1913 Act and Section 4 of Article XIIID of
the California Constitution and containing the information required by Section 2961 of
the California Streets and Highways Code.
Section 2. The City Council, by its Resolution No. 06-152, preliminarily
approved a report entitled "City of Palm Desert Preliminary Engineer's Report, Section
29 Assessment District, No. 2004-02" (the "Engineer's Report"), prepared by the
Assessment Engineer in connection with the Assessment District, which Engineer's
Report is on file in the o�ce of the City Clerk and available for public inspection.
Section 3. On January 11, 2007, following notice duly given in accordance with
law, the City Council held a full and fair public hearing on the Resolution of Intention,
the Engineer's Report, the levy and collection of the proposed assessments, and the
proposed acquisitions and improvements in connection with the Assessment District
and regarding protests and objections thereto.
Section 4. All interested persons were afforded the opportunity to hear and be
heard regarding protests and objections to the formation of the Assessment District and
the levy and collection of the proposed assessments and all related matters. The City
Council considered all oral and written protests. The City Clerk, together with such
assistants as she deemed necessary, tabulated all properly completed and returned
assessment ballots submitted and not withdrawn. The City Council hereby finds and
determines that a majority protest does not exist as defined in Section 4(e) of Article
P6401-1033\937807v l.doc
RESOLDTION N0. 07-4B
XIIID of the California Constitution. All protests and objections are hereby overruled by
the City Council.
Section 5. Based upon its review of the Engineer's Report and other reports and
information presented to it, the City Council hereby finds and determines that (i) the
lands within the Assessment District will be specially benefited by the acquisitions and
improvements described in the Engineer's Report and the public interest, convenience,
and necessity require that the acquisitions and improvements be made, (ii) the
Assessment District includes all of the lands so benefited, (iii) the assessment of the
total amount of the cost and expenses of such acquisitions and improvements upon the
several subdivisions of land in the Assessment District is in proportion to the estimated
special benefits to be received by such subdivisions, respectively, from such
acquisitions and improvements and (iv) only special benefits are assessed and no
assessment is imposed on any subdivision of land which exceeds the reasonable cost
of the proportional special benefit conferred on that subdivision.
Section 6. The proposed assessment for the cost of the acquisitions and
improvements provided for in subdivisions (d) and (e) of Section 10204 of the 1913 Act,
and the maximum annual assessment provided for in subdivision (f) of that section are
hereby confirmed as set forth in the Engineer's Report. The City Council hereby
determines that the amount of the annual assessment to pay for administrative costs
shall be $50.00 per parcel of land in the Assessment District for which there are unpaid
assessments.
Section 7. The City Council hereby orders the proposed acquisitions and
improvements set forth in the Engineer's Report to be made. The district benefitted by
the acquisitions and improvements and to be assessed to pay the costs and expenses
thereof, and the exterior boundaries thereof, are as shown by a map thereof filed in the
office of the City Clerk and incorporated herein by reference
Section 8. The City Council declares that the Engineer's Report as a whols and
each part thereof, is hereby finally approved and confirmed.
Section 9. The City Clerk is hereby directed to cause to be recorded in the office
of the Superintendent of Streets a certified copy of the diagram and assessments
provided for in subdivisions (d), (e) and (f) of Section 10204 of the 1913 Act.
Section 10. The City Clerk is hereby directed to cause to be recorded in the
office of the County Recorder of the County of Riverside a notice of assessment in
connection with the Assessment District as provided by Section 3114 of the California
Streets and Highways Code and Section 10402.5 of the 1913 Act.
Section 11. Following the recordation of such notice of assessment, the City
Clerk is hereby authorized and directed to provide notice of recordation of the
assessment in accordance with Section 10404 of the 1913 Act.
Section 12. The City Council hereby authorizes the City Manager and the
Director of Finance, at any time prior to the completion of the improvement proceedings,
2
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RESOLDTION N0. 07-4B
to make changes in connection with the Assessment District, including but not limited to
approving changes to the Engineer's Report (including, but not limited to, cost estimates
and line items therein), the acquisitions and improvements ordered herein, and the
assessments (including the amount of any of the individual assessments) confirmed
hereby, provided this Resolution shall not be deemed to authorize the City Manager or
Director of Finance to approve any increase in the amount of any of the individual
assessments.
Section 13. The form of Purchase and Sale Agreement and Escrow Instructions
by and between the City and Monterey 170, LLC, A California Limited Liability
Company, presented at this meeting and on file in the office of the City Clerk, is hereby
approved. Each of the Mayor, the Mayor Pro Tempore (in the Mayor's absence), and
any deputy of such officers (each an "Authorized Officer"), acting singly, is hereby
authorized and directed, for and in the name and on behalf of the City, to execute and
deliver the Purchase and Sale Agreement and Escrow Instructions in substantially the
form on file with the City Clerk and presented at this meeting, with such additions
thereto or changes or insertions therein as the Authorized Officer executing the same
may approve (such approval to be conclusively evidenced by such Authorized Officer's
execution and delivery).
Section 14. The form of the School District Funding Agreement by and
between the City and the Palm Springs Unified School District presented at this meeting
and on file in the office of the City Clerk, is hereby approved. Each of the Authorized
Officers, acting singly, is hereby authorized and directed, for and in the name and on
behalf of the City, to execute and deliver the School District Funding Agreement in
substantially the form on file with the City Clerk and presented at this meeting, with such ,
additions thereto or changes or insertions therein as the Authorized Officer executing
the same may approve (such approval to be conclusively evidenced by such Authorized
Officer's execution and delivery).
Section 15. The form of the Joint Facilities Agreement by and among the City,
the Coachella Valley Water District and Summit Monterey Properties, LLC, A California
Limited Liability Company, presented at this meeting and on file in the office of the City
Clerk, is hereby approved. Each of the Authorized Officers, acting singly, is hereby
authorized and directed, for and in the name and on behalf of the City, to execute and
deliver the Acquisition Agreement in substantially the form on file with the City Clerk and
presented at this meeting, with such additions thereto or changes or insertions therein
as the Authorized Officer executing the same may approve (such approval to be
conclusively evidenced by such Authorized Officer's execution and delivery).
Section 16. The officers of the City are hereby authorized and directed, jointly
and severally, to do any and all things, to execute and deliver any and all documents
3
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RESOLi1TI0N N0. 07-4B
which they may deed necessary or advisable in order to effectuate the purposes of the
this Resolution and the agreements referenced herein, and any actions previously taken
by such officers are hereby ratified and confirmed.
RESOLUTION NO. 07- 4B
PASSED, APPROVED, AND ADOPTED THIS 11th DAY OF JANUARY 2007.
STATE OF CALIFORNIA
COUNTY OF RIVERSIDE ss.
CITY OF PALM DESERT
I, Rachelle D. Klassen, City Clerk of the City of Palm Desert, County of Riverside, State
of California do hereby certify that the foregoing Resolution No. 07- 4B was regularly
adopted by the City Council of said City of Palm Desert at a regular meeting of said
council held on the 11"' day of , 2007 by the fol{owing vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAINED:
Richard S. KeNy, Mayor
City of Palm Desert
Rachelle D. Klassen, City Clerk
City of Palm Desert
4
P6401-1033\937807v1.doc
RESOLUTION NO. 07- 4B
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM DESERT APPROVING THE ENGINEER'S REPORT IN
CONNECTION WITH CITY OF PALM DESERT SECTION 29
ASSESSMENT DISTRICT (NO. 2004-02), CONFIRMING THE
ASSESSMENTS IN CONNECTION WITH SUCH DISTRICT,
ORDERING PROPOSED ACQUISITIONS AND IMPROVEMENTS
TO BE MADE, APPROVING AS TO FORM AND AUTHORIZING
THE EXECUTION AND DELIVERY OF CERTAIN AGREEMENTS
AND TAKING CERTAIN OTHER ACTIONS
THE CITY COUNCIL OF THE CITY OF PALM DESERT HEREBY FINDS,
DETERMINES, RESOLVES, AND ORDERS AS FOLLOWS:
Section 1. The City Council, by its Resolution No. 06-151 (the "Resolution of
Intention"), declared its intention to order acquisitions and improvements for proposed
City of Palm Desert Section 29 Assessment District (No. 2004-02) (the "Assessment
District") pursuant to the provisions of the Municipal Improvement Act of 1913
(California Streets and Highways Code Section 10000, et seg.) (the "1913 Act") and as
provided in Article XIIID of the California Constitution and to comply with the
requirements of Division 4 of the California Streets and Highways Code by proceeding
under Part 7.5 thereof, and ordered the Assessment Engineer, Wildan and
MuniFinancial ( the "Assessment Engineer"), to prepare and file a report with the City
Clerk in accordance with Section 10204 of the 1913 Act and Section 4 of Article XIIID of
the California Constitution and containing the information required by Section 2961 of
the California Streets and Highways Code.
Section 2. The City Council, by its Resolution No. 06-152, preliminarily
approved a report entitled "City of Palm Desert Preliminary Engineer's F2eport, Section
29 Assessment District, No. 2004-02" (the "Engineer's Report"), prepared by the
Assessment Engineer in connection with the Assessment District, which Engineer's
Report is on file in the office of the City Clerk and available for public inspection.
Section 3. On January 11, 2007, following notice duly given in accordance with
law, the City Council held a full and fair public hearing on the Resolution of Intention,
the Engineer's Report, the levy and collection of the proposed assessments, and the
proposed acquisitions and improvements in connection with the Assessment District
and regarding protests and objections thereto.
Section 4. All interested persons were afforded the opportunity to hear and be
heard regarding protests and objections to the formation of the Assessment District and
the levy and collection of the proposed assessments and all related matters. The City
Council considered all oral and written protests. The City Clerk, together with such
assistants as she deemed necessary, tabulated all properly completed and returned
assessment ballots submitted and not withdrawn. The City Council hereby finds and
determines that a majority protest does not exist as defined in Section 4(e) of Article
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RESOLIITION NO. 07-4B
XIIID of the California Constitution. All protests and objections are hereby overruled by
the City Council.
Section 5. Based upon its review of the Engineer's Report and other reports and
information presented to it, the City Council hereby finds and determines that (i) the
lands within the Assessment District will be specially benefited by the acquisitions and
improvements described in the Engineer's Report and the public interest, convenience,
and necessity require that the acquisitions and improvements be made, (ii) the
Assessment District includes all of the lands so benefited, (iii) the assessment of the
total amount of the cost and expenses of such acquisitions and improvements upon the
several subdivisions of land in the Assessment District is in proportion to the estimated
special benefits to be received by such subdivisions, respectively, from such
acquisitions and improvements and (iv) only special benefits are assessed and no
assessment is imposed on any subdivision of land which exceeds the reasonable cost
of the proportional special benefit conferred on that subdivision.
Section 6. The proposed assessment for the cost of the acquisitions and
improvements provided for in subdivisions (d) and (e) of Section 10204 of the 1913 Act,
and the maximum annual assessment provided for in subdivision (f) of that section are
hereby confirmed as set forth in the Engineer's Report. The City Council hereby
determines that the amount of the annual assessment to pay for administrative costs
shall be $50.00 per parcel of land in the Assessment District for which there are unpaid
assessments.
Section 7. The City Council hereby orders the proposed acquisitions and
improvements set forth in the Engineer's Report to be made. The district benefitted by
the acquisitions and improvements and to be assessed to pay the costs and expenses
thereof, and the exterior boundaries thereof, are as shown by a map thereof filed in the
office of the City Clerk and incorporated herein by reference
Section 8. The City Council declares that the Engineer's Report as a whole and
each part thereof, is hereby finally approved and confirmed.
Section 9. The City Clerk is hereby directed to cause to be recorded in the office
of the Superintendent of Streets a certified copy of the diagram and assessments
provided for in subdivisions (d), (e) and (f) of Section 10204 of the 1913 Act.
Section 10. The City Clerk is hereby directed to cause to be recorded in the
office of the County Recorder of the County of Riverside a notice of assessment in
connection with the Assessment District as provided by Section 3114 of the California
Streets and Highways Code and Section 10402.5 of the 1913 Act.
Section 11. Following the recordation of such notice of assessment, the City
Clerk is hereby authorized and directed to provide notice of recordation of the
assessment in accordance with Section 10404 of the 1913 Act.
Section 12. The City Council hereby authorizes the City Manager and the
Director of Finance, at any time prior to the completion of the improvement proceedings,
2
P6401-1033\937807v1.doc
RESOLIITION N0. 07-4B
to make changes in connection with the Assessment District, including but not limited to
approving changes to the Engineer's Report (including, but not limited to, cost estimates
and line items therein), the acquisitions and improvements ordered herein, and the
assessments (including the amount of any of the individual assessments) confirmed
hereby, provided this Resolution shall not be deemed to authorize the City Manager or
Director of Finance to approve any increase in the amount of any of the individual
assessments.
Section 13. The form of Purchase and Sale Agreement and Escrow Instructions
by and between the City and Monterey 170, LLC, A California Limited Liability
Company, presented at this meeting and on file in the office of the City Clerk, is hereby
approved. Each of the Mayor, the Mayor Pro Tempore (in the Mayor's absence), and
any deputy of such officers (each an "Authorized Officer"), acting singly, is hereby
authorized and directed, for and in the name and on behalf of the City, to execute and
deliver the Purchase and Sale Agreement and Escrow Instructions in substantially the
form on file with the City Clerk and presented at this meeting, with such additions
thereto or changes or insertions therein as the Authorized Officer executing the same
may approve (such approval to be conclusively evidenced by such Authorized Officer's
execution and delivery).
Section 14. The form of the School District Funding Agreement by and
between the City and the Palm Springs Unified School District presented at this meeting
and on file in the office of the City Clerk, is hereby approved. Each of the Authorized
Officers, acting singly, is hereby authorized and directed, for and in the name and on
behalf of the City, to execute and deliver the School District Funding Agreement in
substantially the form on file with the City Clerk and presented at this meeting, with such ,
additions thereto or changes or insertions therein as the Authorized Officer executing
the same may approve (such approval to be conclusively evidenced by such Authorized
Officer's execution and delivery).
Section 15. The form of the Joint Facilities Agreement by and among the City,
the Coachella Valley Water District and Summit Monterey Properties, LLC, A California
Limited Liability Company, presented at this meeting and on file in the office of the City
Clerk, is hereby approved. Each of the Authorized Officers, acting singly, is hereby
authorized and directed, for and in the name and on behalf of the City, to execute and
deliver the Acquisition Agreement in substantially the form on file with the City Clerk and
presented at this meeting, with such additions thereto or changes or insertions therein
as the Authorized Officer executing the same may approve (such approval to be
conclusively evidenced by such Authorized Officer's execution and delivery).
Section 16. The officers of the City are hereby authorized and directed, jointly
and severally, to do any and all things, to execute and deliver any and all documents
3
P6401-1033\937807v1.doc
RESOLIITION N0. 07-4B
which they may deed necessary or advisable in order to effectuate the purposes of the
this Resolution and the agreements referenced herein, and any actions previously taken
by such officers are hereby ratified and confirmed.
RESOLUTION NO. 07- 4B
PASSED, APPROVED, AND ADOPTED THIS 11t" DAY OF JANUARY 2007.
STATE OF CALIFORNIA
COUNTY OF RIVERSIDE ss.
CITY OF PALM DESERT
I, Rachelle D. Klassen, City Clerk of the City of Palm Desert, County of Riverside, State
of California do hereby certify that the foregoing Resolution No. 07- 4B was regularly
adopted by the City Council of said City of Palm Desert at a regular meeting of said
council held on the 11 th day of , 2007 by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAINED:
Richard S. Kelly, Mayor
City of Palm Desert
Rachelle D. Klassen, City Clerk
City of Palm Desert
4
P6401-1033\937807v1.doc
RESOLUTION NO. 07- 4C
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM DESERT MAKING CERTAIN DESIGNATIONS IN
CONNECTION WITH CITY OF PALM DESERT SECTION 29
ASSESSMENT DISTRICT (NO. 2004-02)
RECITALS:
THE CITY COUNCIL OF THE CITY OF PALM DESERT HEREBY FINDS,
DETERMINES, RESOLVES, AND ORDERS AS FOLLOWS:
Section 1. The City hereby retains the following firms pursuant to the respective
agreements on file in the office of the City Clerk in connection with the proceedings to
issue and sell bonds in connection with City of Palm Desert Section 29 Assessment
District (No. 2004-02) (the "Bonds"):
a) Appointment of Underwriters. Stinson Securities, LLC and Kinsell,
Newcomb, De Dios, Inc. are hereby appointed underwriters of the Bonds.
b) Appointment of Financial Advisor. Del Rio Advisors, LLC is hereby
appointed financial advisor in connection with the issuance and sale of the Bonds.
c) Appointment of Bond Counsel. Richards, Watson & Gershon, A
Professional Corporation, is hereby appointed bond counsel in connection with the
issuance and sale of the Bonds.
d) Appointment of Disclosure Counsel. Jones Hall Law Corporation is
hereby appointed disclosure counsel in connection with the issuance and sale of the
Bonds.
G RDA Mara Hunt WPDATA Section 29 Resolution Making Certain Devgnauonsl DOC
P6401-1033\860770v3.doc
RESOLUTION NO. 07- 4C
PASSED, APPROVED, AND ADOPTED THIS 11th DAY OF JANUARY 2007.
STATE OF CALIFORNIA
COUNTY OF RIVERSIDE ss.
CITY OF PALM DESERT
I, Rachelle D. Klassen, City Clerk of the City of Palm Desert, County of Riverside, State
of California do hereby certify that the foregoing Resolution No. 074c was regularly
adopted by the City Council of said City of Palm Desert at a regular meeting of said
council held on the 11 th day of January 2007 by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Richard S. Kelly, Mayor
City of Palm Desert
Rachelle D. Klassen, City Clerk
City of Palm Desert
P640 I - I 033 \860770v3.doc 2
CITY OF PALM DESERT
PRELIMINARY ENGINEER'S REPORT
SECTION 29 ASSESSMENT DISTRICT
No. 2004-02
NovEMSER 1G, 200G
INTENT MEETING: November 16, 2006
PUBLIC HEARING: January 11,2007
�
.�
�MuniFinancial
Corporate O�ce Regional Offices
373G8\'ia[nJustria .lnaheim,C_� Phoenix,.�Z
tiuirc 110 Indus�ry�,C:1 San Diego,C.�
"I'cmccula,(;:\92590 Lancaster,C:� Seatde,�l'.�
'1'el: (909) 58?-3500 Oakland,C.� ��'ashinKtc�n,DC
Tel: (800)755-�1IL'IvI (GSG4)
Fax: (909) �87-3�10
www.muni.com
ENGINEER'S REPORT
SECTION 29 ASSESSMENT DISTRICT NO. 2004-02
CITY OF PALM DESERT
TABLE OF CONTENTS
CERTIFICATIONS.................................................................................................................................................ii
ASSESSMENT...........................................................................................................................................................1
GENERAL DESCRIPTION OF SECTION 29 ASSESSMENT DISTRICT NO.2004-02.................................3
DESCRIPTIONOF WORK.....................................................................................................................................3
EXHIBIT A-PLANS AND SPECIFICATIONS...................................................................................................A
EXHIBIT B-COST ESTIMATE..........................................................................................................................B
EXHIBITC-ASSESSMENT ROLL....................................................................................................................0
EXHIBIT D- REPORT UIVDER PART 7.5 DIVISION 4....................................................................................D
EXHIBIT E- METHOD OF ASSESSMENT........................................................................................................E
EXHIBIT F-ASSESSEMENT DIAGRAM...........................................................................................................F
EXHIBIT G-RIGHT-OF-WAY AND EASEMENTS..........................................................................................0
EXHIBIT H-MAXIMUM ANIVUAL ADMINISTRAT[ON COST ADD ON................................................... H
MuniFinancial i City of Palm Desert
ENGINEER'S REPORT
SECTION 29 ASSESSMENT DISTRICT NO. 2004-02
CITY OF PALM DESERT
CERTIFICATIONS
'1'he undersigned respectfull}� submits the enclosed report as ciirected b}' the Cin�Council.
Date: , �00G.
I�SuniPinancial/W'illdan
�lssessment Fngineer
I f II:KI;BY CER"TIH�' that the enclosed Engineer's Report, together with the rlssessment and
:\ssessment I�ia�;ram thereto attached, was filed w�th me on the da�•of
,200G.
Clerk of the Ciry Council,
Cit}�of Palm Desert,California
I F�N:RI�.BY CER"I'II�Z' that the enclosed Engineer's Report, togethcr with the Assessment and
1lssessment Diagram thereto attached,was approc�ed and confirmed by the City Council for the Cit��of
Palm l�esert, California, on the da�� of ,200G.
Clerk of the City Council,
Cin'of Palm llesert, California
I HI�:Rf�:BY CrRTIFY that the encloscd Engineer's Report, together with the .�ssessment and
:lssessment Diagram thereto attached,�vas recorded in m��office on the da�� of
, �00C>.
Cit�•Engineer(Superintendent of Streets),
City of Palm Desert, California
MuniFinancial ll City of Palm Desert
ENGINEER'S REPORT
SECTION 29 ASSESSMENT DISTRICT NO. 2004-02
� CITY OF PALM DESERT
�-�SS�SSI�ICN"1'
WHEREAS, on No�-ember 1G, 2006, the Cin• Council of the City of Palm Descrt (the
"Cih''),State of California,under the �funicipal Impro��ement�1ct of 1913 (the"l�et"),adopteci its
Resolution of Intention to Make rlcquisitions and Improvements(the"Resoluuon of Intention") for
the acquisition andJor construction of the public impro�•ements (the "Improvements") more
particularl}�therein described in and for the Cih�'s Section 29 Assessment District No. 200�-02(thc
":�ssessmcnt District");
WHEREAS, with respect to the Impro��ements, the Resoluuon of Intenuon ciirected the
undersi�med to make and file a report presenting a general description of any works and appliances
alread}• installed and any other propern� necessar�� or con��enient for the operation of the
Impro�-ements,plans and specificauons for the proposed construccion,estimate of costs,maps and
descriptions of lands and easements to be acyuired, and diagram and assessment of and upon the
subcii��isions of land within the r�ssessment District,to which Resolution and the descripuon of the
Improvements therein contained reference is hereb}�made for further particulars;
NOW, THEREFORE, the following assessment is made to cover the poraon of the
estimated cost of the Improvements and the costs and expenses incidental thereto ro be paid b}�
the assessments:
SL�1��1KY COS"I'r:STI�i:1"I'£.
�1) �2) �3)
��s Preliminarilj� :�s Confirmed :1s tiiodified
��vnroved :�nd Recorded �lfter
�—
Recordation
Construction Costs $19,049,240
Im act l�ees �1,718,309
Ri hts-of-Vi'a�� �5,577,296
Contin encies �2,731,82C
�n �nccrin and Incidcntals �3,189,950
Bond Costs 57,025,321
'1'otal Im rovement Costs 539,291,942
Less Ci -Contributions 5713,246
Less Sewer Gencral Benefit �123,821
"I'(�'Ct1I.1'(� �SSF.SSI�ICNT $38,454,875
I cio hereb}� assess and a�portion the I3alance to �lssessment of the Total Cost of the
acquisiuons, work and impro��ements upon the se��eral lots, pieces or parcel or portions of lots or
subdi��isions of lanc3 liable therefor and benefited thereb��,and hereinafter numbered to correspond
���ith the numbers upon the attached.�ssessment Diagram,upon each,severall��and respecavel�•,in
accordance �vith the benefits to be received b}� such subdivisions, respectivel`�, from the
MuniFinancial 1 City of Palm Desert
Impro��ements,and more particularh•set forth in the list hemto attached and b�•reference made a part
hereof.
'I'hc assessmcnt is madc upon the several subciivisions of land within the rlssessment llistrict
in proporti�n to the cstimated benefits to be recei��ed b�• the subciivisions, respecti��el}•, from the
impro��ements. .�s required b}' thc ,�1ct, an .-�ssessment Diagram is hereto attached sho�ving the
.lssessment District and also the boundaries and dimensions of the respective subcii��isions of land
�vithin thc .lssessment District as the same existed at the time of thc passage of thc Resolution oF
Intcndon, each of�vhich subdivisions having been giecn a separate number upon the ,lssessmcnt
Diagram.
I:ach subdivision of land assessed is described in the within rlssessment Roll b�=reference to
its parcel number as shown on thc .�lssessor's �faps of the County� of Riverside for the fiscal }•ear
2005-2006 and includes all of such parcel excepting those portions thereof within existing pubGc
roads or right of way' ro be acquired in these proceeciings for public road purposes. For a more
particular description of said propert��,reference is hereby made to che deeds and maps on file and of
record in the office of the Count}� Recorder of the Counh•.
Notice is hereb}� �;iven that serial and/or term improvement bonds to represent unpaid
assessments and bear interest at the rate of not to exceed twelve percent (12%) per annum,or such
higher rate of interest as ma��be authorized by applicable law at the time of sale of such bonds,�ti�ill be
issued hereunder in the manner provided b�� Di�-ision 10 of the Strcets and Highways Codc, thc
Imprcn�ement Bond.�1ct of 1915,and the last installment of such bonds shall mature not to c�ceed
thirn�-nine (39) ��ears from the second da}�of September next succeeding twelve (12) months from
thcir date.
i�funiFinancial/��'illdan
�lssessment�.ngineer
Cit}'of Palm Dcsert
State of California
Si�med b��
Richard I.. Kopecky, I'.E. (CL 16742)
MuniFinancial 2 City of Palm Desert
ENGINEER'S REPORT
SECTION 29 ASSESSMENT DISTRICT NO. 2004-02
CITY OF PALM DESERT
The impro��ements,which are the subject of this report, are briefl�� described as follows:
GENERAL DESCRIPTION OF THE Section 29 Assessment District No. 2004-02
This impro��ement district includes properties generallj�in the south half and three pro�erties on thc
north half of Secuon 29 in the cih�of Palm Desert. The improvements consist generall}� of streets,
sewers, storm drains,water lines, drainage basins, relocation of utilides and acquisition of necessar}�
rights-of-�va�• or propern� on which to install the impro��ements. �fost of the impro�-ements cannot
be installed writhout the concurrence and cooperaaon of indi��idual land owners/de��elopers. For this
reason, it was decided that an improvement district would provide the vehicle to apporuon the costs
among thc se��eral properties.
DESCRIPTION OF WORK
"11�e following is a description of the planned improvements for the enare rlssessment District.
:1. STRI�;E1' I;�IPROVEI�II�:NTS
5treets to be constructed are arterial strects and collector streets. These streets �vill function to carr�
traffic around and within the developments for proper circulation. '17ie arterial streets consist of ne�v
streets or street widcnin�; of exisung streets. "11ie artcrial streets are Montcre}� •�vcnuc, C7erald I-�ord
llrive, Portola Avenue, 35'h r'�venue and Dinah Shore Drive. Collector streets to serve the internal
portions of the llistrict are C7ate�va�� Dri��e, "�1" Street, Dolce rlvenue and Cortesa�X'a}�.
'1'he streets�vill be constructed andJor�videned to the Cin•of Palm Desert standards. "I'hese standards
tna�� include curb and gutter, pavement, meciians and median landscaping, side�valks and utilin'
rclocation.
I3. 5'1'()R�1 DR.�1IN II�IPRO�'E�1�NTS
St�rm Drains arc required so that increased run-off from the developed properties does not negati�-el}�
affect do�vnstream properaes. 11ie storm cirains �vill �;enerally be constructed in the existing or
proposed streets. 'I'he storm drains will outlet into an existing drainage basin at the northcasterl�•
portion of the District. This basin will retain thc storm flows so that it does not negatively affect
downstream properties.
The drainagc basin is pri��atel��hcld and�vill need to be acquired to allow the properties to develop. 'I'he
basin will also need to be deepened to increase storm run-off capacin�and the side�valls will need to be
stabilized from erosion.
C. Sl�:��"F:R I�fPRO�'F�iL,IvTS
Sanitan� sewer improvements�vill be constructed to sen•e most of the properties in the llistrict. 'I1ic
sewers��nll be the backbone collecuon s��stem to ser�-e the properties as the}�develop. '1'he se�vers�vill
MuniFinancial 3 City of Palm Desert
be extended to an caisting 12-inch pipe owned b}�the Coachella Valle}���'arer l�istrict that crosses the
Southern Pacific Railroad tracks and I nterstate 10. 1'he 12-inch pipe will be remo��ed and replaced�vith
an 18-inch pipe to provide capacin' for the District properties.
As the �roperues de��elop, the sewcrs �vill be extended ro sen�e the indi�-idual lots/buildings in thc
de��elopment and the cost of these extensions are not included in this District.
D. ��'.1"1"F,R SY5'I'Eh�i II�4PR0�,'F,I�IENTS
��'ater mains and h��drants will be constructed in the I�istrict to provide fire protection and domestic
water to each of the properties as the}•develop. .1s development proceeds, these �vater mains will be
extended to serve individual lots{builciings in the derelopment and are not included in this District.
I-:. REI,C)C:1'TION OP L;1'LI'1'II-;S
I?xisting o��erhead utilities along some but not all of the arterial streets will be relocated to construct the
strcet improeements.
r. RICTI ITS-Or-�t'r1Y / ],:1ND 11CQUISI"1'ION
Rights-of-�va}� and/or land �vill be required to construct the impro��ements and benefit the parcels
�vhere existing street or utilit�•easements do not exist.
This report includes the following attached exhibits:
CXHIBI"T.�1 - 1'lans and specifications for impro��ements to be acquired or constructed. Plans
and specifications are a part �f this repart, separatel}� bound, and are available for review at thc
Off ce of the Citti� Engineer.
I�.�1IBIT B - .1n estunate of the cost oE the improvement.
E�HIBIT C - �1n assessment roll,sho�ving the amount to be assessed against each parcel of real
propert���vithin the rlssessment District. F..ach parcel is described by�Assessor's Parcel Number or
other designation. F.ach parcel is also assigned an "assessment number" for the purposes c7f this
procccding.
I�:X�III3IT ll-r1 report under Part 7.5 of Division�of the California Streets and f�ighwa�•s Code.
I:X}IIBIT E - r1 statement of the method b�� which the �lssessment �ngineer determined the
amount to be assessed against each parcel based on the special benefits to be derired b��each
parcel, respecti��el��, from the improvements.
I�:Xf IIBIT F - � eiiagram showing all of the parcels of real propert�� within this Section 29
Assessment llistrict No. 2004-02. "I�e diagram corresponds and is keyed to Exhibit C b�� the
assessment number.
��HII3I'1'G - � schedule sho�ving the right-of-�va}�easements and/or land to be acquired.
MuniFfnancial -� City of Palm Desert
ENGINEER'S REPORT
SECTION 29 ASSESSMENT DISTRICT NO. 2004-02
CITY OF PALM DESERT
EXHIBIT A- PLANS AND SPECIFICATIONS
PI,:1NS.-�Nll SI'ECIFICIITIONS
1'he plans and specifications for the improvements to be acquired or constructed for this :�lssessment
l�istrict are voluminous and�vill not be bound in this Report,but by this reference are incorporated as if
attached to this Report. The plans and specificauons are on file in the office of the(:it}'I-:ngineer of the
Cin� of I'alm Desert. The plans and specifications for this Assessment I�istrict consist of street and
storm drain, sanitarti�sewer and�vater main improvements.
MuniFinancial Exhibic 1� - I'age 1 City of Palm Desert
ENGINEER'S REPORT
SECTION 29 ASSESSMENT DISTRICT NO. 2004-02
CITY OF PALM DESERT
EXHIBIT B -COST ESTIMATE
�. :�. �,
Prcl�mmxnl�- (;unfirmcJ (:�,nfinncJ
Construction Costs \ppr�,�rJ :�nJ Ap�+n,ccJ and\f�xl�ficd
titrcct Improrrmcnts Artcn:J $ i,4'i,G28.Nu $ S
titrcci Impro��cmcnis Cullcaor I.i4'.ii(l.l i
tic��'er Improeementx I,G3H 184.12
�tnrm Ur:un Improccmcnts md Rasm l.and(��sis G,262?G'J.7)
\��atrr Impr��crmrnts 1,7i7,196 5(
Impacr fcca 1.'18,3u7.�hi
Cuntnt�,cna� 2.i 31.N25.9�
Total S 23,499,375
Enqinecrin�Deei�n,Conatruction,Administration,Righaof-Way Incidcntale
I�:n�,�nccnn� $ I!iu1,35(�����
()ff,�tc Polc Relocanon %;nMi,un
l�rdm�CourJmatiun 'S,iHMi.�Mi
Pcrm�h 4i'),ljl un
(:unxtcucnon\lana},cmrnt,tinil���nrk,and�ta4:m}; 1,G25,243.ui�
IL}�ht��f-\C'ay Z577.�95 9�1
Total S 8,767,246
Costo(Iseu�nce
Format�un S 55:��iu.iMi
Crt��ti��cixl c:nunscl 4i:xw thi
Bnnd(��umcl ri2�n x i i w�
:\.scssmcnr 1�:n�,�ncrnn� Hi i i n u i.i x i
;lppn�sal Sn�iun nn
I)isdnwre C�,unscl 5��;���������
(:m�:\Jm�ms trxnon Prr i i,�n n i.i u i
Prmnn�; I SJ��M U M i
I�mannal:\d��u��r Hi i i n u�i M i
titau>ncal I)aia 5 iMm iNi
Ii�,nJ I s,uancc Cunhn�;rna� 2��i�����.U��
Totxl S 557,000
Capitalized Inrerest,Reserve Funds,Diecount
Capicnlvcllnccccst S 3,14iJ�n��.�M�
Rc.cn-��1•und 2,7G;IIIMI.INI
l'n�rncntcr.a I)ixuunt �SG_i21.3i
Toml E 6,468,321
Toul Projcc[Costs and Capiulized Inrerest/ResenT S 39,291,9�2
L,ess General Benefit E (123,82t)
Less City Contributions (713,246)
'I'otal Assessment Amount S 38,454,975
MuniFlnancial I�:xhibit B - I'age 1 City of Palm Desert
ENGINEER'S REPORT
SECTION 29 ASSESSMENT DISTRICT NO. 2004-02
CITY OF PALM DESERT
EXHIBIT C-ASSESSMENT ROLL
:1n assessment of the total amount of the costs and expcnses of the improeements upon thc
subciivisions of land within the 1lssessment I�istrict in proportion to the estimated special benefit to be
receivcd by the subdivisions from the unpro�•cments,is set forth upon the follo�ving:lsscssment Roll
filcd�vith and madc part of this Rcport.
"I�e�lssessment Roll lists the assessor's parcel numbers�vithin this Assessment District b}•assessment
number. '1'he assessment numbers appearing on the:lssessment Roll correspond�vith the subdivisions
and�arccls of land and their numbers shown on thc:lssessment Diagram (I-;xhibit I-).
MuniFinancial Fxhibit C - Page 1 City of Palm Desert
ENGINEER'S REPORT
SECTION 29 ASSESSMENT DISTRICT NO. 2004-02
CITY OF PALM DESERT
Assessment Roll
Assessor's Assessment As Preliminarily As Confirmed As Confirmed
Parcel Number I.D. Number Approved and Approved and Modified
653-250-056 1 2,837,995.42 - -
653-250-073 2 - - -
653-260-016 3 277,743.28 - -
653-260-018 4 2,065,180.60 - -
653-260-021 5 46,644.00 - -
653-260-022 6 4,259,151.95 - -
653-260-023 7 938,47220 - -
653-260-024 8 5,626,120.68 - -
653-260-025 9 76,978.00 - -
653-260-029 10 5,452,807.64 - -
653-260-033 11 4,077,920.43 - -
653-260-035 12 - - -
653-260-036 13 6,792,085.59 - -
653-260-041 14 1,083,454.75 - -
653-260-042 15 206,352.78 - -
653-850-001 16 29,647.60 - -
653-850-002 17 29,647.60 - -
653-850-003 18 29,647.60 - -
653-850-004 19 29,647.60 - -
653-850-005 20 29,647.60 - -
653-850-006 21 29,647.60 - -
653-850-007 22 29,647.60 - -
653-850-008 23 29,647.60 - -
653-850-009 24 29,647.60 - -
653-850-010 25 29,647.60 - -
653-850-011 26 29,647.60 - -
653-850-012 27 29,647.60 - -
653-850-013 28 29,647.60 - -
653-850-014 29 29,647.60 - -
653-850-015 30 29,647.60 - -
653-850-016 31 29,647.60 - -
653-850-017 32 29,647.60 - -
653-850-018 33 29,647.60 - -
653-850-019 34 29,647.60 - -
653-850-020 35 29,647.60 - -
653-850-021 36 29,647.60 - -
653-850-022 37 29,647.60 - -
653-850-023 38 29,647.60 - -
653-850-024 39 29,647.60 - -
653-850-025 40 29,647.60 - -
653-850-026 41 29,647.60 - -
653-850-027 42 29,647.60 - -
653-850-028 43 29,647.60 - -
653-850-029 44 29,647.60 - -
653-850-030 45 29,647.60 - -
653-850-031 46 29,647.60 - -
MuniFinancial Exhibit C - Page 2 City of Palm Desert
Assessor's Assessment As Preliminarily As Confirmed As Confirmed
Parcel Number I.D. Number Approved and Approved and Modified
653-850-032 47 29,647.60 - -
653-850-033 48 29,647.60 - -
653-850-034 49 29,647.60 - -
653-850-035 50 29,647.60 - -
653-850-036 51 29,647.60 - -
653-850-037 52 29,647.60 - -
653-850-038 53 29,647.60 - -
653-850-039 54 29,647.60 - -
653-850-040 55 - - -
653-850-041 56 - - -
653-851-001 57 29,647.60 - -
653-851-002 58 29,647.60 - -
653-851-003 59 29,647.60 - -
653-851-004 60 29,647.60 - -
653-851-005 61 29,647.60 - -
653-851-006 62 29,647.60 - -
653-851-007 63 29,647.60 - -
653-851-008 64 29,647.60 - -
653-851-009 65 29,647.60 - -
653-851-010 66 29,647.60 - -
653-851-011 67 29,647.60 - -
653-851-012 68 29,647.60 - -
653-851-013 69 29,647.60 - -
653-851-014 70 29,647.60 - -
653-851-015 71 29,647.60 - -
653-851-016 72 29,647.60 - -
653-851-017 73 29,647.60 - -
653-851-018 74 29,647.60 - -
653-851-019 75 29,647.60 - -
653-851-020 76 29,647.60 - -
653-851-021 77 29,647.60 - -
653-851-022 78 29,647.60 - -
653-851-023 79 29,647.60 - -
653-851-024 80 29,647.60 - -
653-851-025 81 29,647.60 - -
653-851-026 82 29,647.60 - -
653-851-027 83 29,647.60 - -
653-851-028 84 29,647.60 - -
653-851-029 85 29,647.60 - -
653-851-030 86 29,647.60 - -
653-851-031 87 29,647.60 - -
653-851-032 88 29,647.60 - -
653-851-033 89 29,647.60 - -
653-851-034 90 29,647.60 - -
653-851-035 91 29,647.60 - -
653-851-036 92 29,647.60 - -
653-851-037 93 - - -
653-851-038 94 - - -
653-852-001 95 29,647.60 - -
653-852-002 96 29,647.60 - -
653-852-003 97 29,647.60 - -
653-852-004 98 29,647.60 - -
MuniFinancial l�:xhibit C - I'age 3 City of Palm Desert
Assessor's Assessment As Preliminarily As Confirmed As Confirmed
Parcel Number I.D. Number Approved and Approved and Modified
653-852-005 99 29,647.60 - -
653-852-006 100 29,647.60 - -
653-852-007 101 29,647.60 - -
653-852-008 102 29,647.60 - -
653-860-001 103 29,647.60 - -
653-860-002 104 29,647.60 - -
653-860-003 105 29,647.60 - -
653-860-004 106 29,647.60 - -
653-860-005 107 29,647.60 - -
653-860-006 108 29,647.60 - -
653-860-007 109 29,647.60 - -
653-860-008 110 29,647.60 - -
653-860-009 111 29,647.60 - -
653-860-010 112 29,647.60 - -
653-860-011 113 - - -
653-860-012 114 - - -
653-861-001 115 29,647.60 - -
653-861-002 116 29,647.60 - -
653-861-003 117 29,647.60 - -
653-861-004 118 29,647.60 - -
653-861-005 119 29,647.60 - -
653-861-006 120 29,647.60 - -
653-861-007 121 29,647.60 - -
653-861-008 122 29,647.60 - -
653-861-009 123 29,647.60 - -
653-861-010 124 29,647.60 - -
653-861-011 125 29,647.60 - -
653-861-012 126 29,647.60 - -
653-861-013 127 29,647.60 - -
653-861-014 128 29,647.60 - -
653-861-015 129 29,647.60 - -
653-861-016 130 29,647.60 - -
653-861-017 131 29,647.60 - -
653-861-018 132 29,647.60 - -
653-861-019 133 29,647.60 - -
653-861-020 134 29,647.60 - -
653-861-021 135 29,647.60 - -
653-861-022 136 29,647.60 - -
653-861-023 137 29,647.60 - -
653-861-024 138 - - -
653-861-025 139 - - -
653-861-026 140 - - -
653-862-001 141 29,647.60 - -
653-862-002 142 29,647.60 - -
653-862-003 143 29,647.60 - -
653-862-004 144 29,647.60 - -
653-862-005 145 29,647.60 - -
653-862-006 146 29,647.60 - -
653-862-007 147 29,647.60 - -
653-862-008 148 29,647.60 - -
653-862-009 149 29,647.60 - -
653-862-010 150 29,647.60 - -
MuniFinancial Exhibit C - Pagc 4 City of Palm Desert
Assessor's Assessment As Preliminarily As Confirmed As Confirmed
Parcel Number I.D. Number Approved and Approved and Modified
653-862-011 151 29,647.60 - -
653-862-012 152 29,647.60 - -
653-862-013 153 29,647.60 - -
653-862-014 154 - - -
653-862-015 155 - - -
653-863-001 156 29,647.60 - -
653-863-002 157 29,647.60 - -
653-863-003 158 29,647.60 - -
653-863-004 159 29,647.60 - -
653-863-005 160 29,647.60 - -
653-863-006 161 29,647.60 - -
653-863-007 162 29,647.60 - -
653-863-008 163 29,647.60 - -
653-863-009 164 29,647.60 - -
653-863-010 165 29,647.60 - -
653-863-011 166 29,647.60 - -
653-863-012 167 29,647.60 - -
653-863-013 168 29,647.60 - -
653-863-014 169 29,647.60 - -
653-863-015 170 29,647.60 - -
653-863-016 171 29,647.60 - -
653-863-017 172 - - -
653-863-018 173 - - -
653-864-001 174 29,647.60 - -
653-864-002 175 29,647.60 - -
653-864-003 176 29,647.60 - -
653-864-004 177 29,647.60 - -
653-864-005 178 29,647.60 - -
653-864-006 179 29,647.60 - -
653-864-007 180 29,647.60 - -
653-864-008 181 29,647.60 - -
653-864-009 182 29,647.60 - -
653-864-010 183 29,647.60 - -
653-864-011 184 29,647.60 - -
653-864-012 185 29,647.60 - -
653-864-013 186 29,647.60 - -
653-864-014 187 29,647.60 - -
653-864-015 188 - - -
653-865-001 189 - - -
TOTAL 38,454,875.24
MuniFinancial Exhibic C - Page 5 Cfty of Palm Desert
ENGINEER'S REPORT
SECTION 29 ASSESSMENT DISTRICT NO. 2004-02
CITY OF PALM DESERT
EXHIBIT D—REPORT UNDER PART 7.5 OF DIVISION 4
Under the Resolution of Intention, thc requirements of Di��ision -�of the California Strects
and I Iighwa}-s Codc shall be satisfied with Part 7.5 of said Division 4, for which the follow7ng is
�resented:
1. The total amount, as near as can be determined, of the total principal amount of all
unpaid special assessments and special assessments required or proposed to be lecied under an}•
completed or pending assessment proceedings, other than contemplated in the instant
proceedings is:
S_0
2. The total amount of the principal sum of the special assessments proposcd to be lc��icd
in the instant proceedings is:
$38.4�4.875
3. "1'he total amount of the principal sum of unpaid special assessments le��ied against thc
parcels proposed to be assessed,as computed pursuant to paragraph 1 above,}�lus the�rincipal
amount of the special assessments proposed to be levied in the instant proceedings frc>m
�aragraph 3 above is:
S38.454,875
-�. 1�e total parcel value,as near as near as ma��be determined,of the parcels of land and
improvements which are proposed to be assessed in the instant proceedings,as determined b}�
the full cash value of the parcels as shown upon the last equalized assessment roll of the(;ounh'
of Ri��erside is:
S89,398.�9�
MuniFinancial Fxhibit C - Page 6 City of Palm Desert
ENGINEER'S REPORT
SECTION 29 ASSESSMENT DISTRICT NO. 2004-02
CITY OF PALM DESERT
EXHIBIT E- METHOD OF ASSESSMENT
B,�CIiC�K(7l;ND
The la�v reyuires that assessments le��ied pursuant to the I�lunicipal Impro��ement Act of 1913 be based
on the benefit propertics receive from the�'orks of Improvcment. Ho�ve��er, the law docs not specifj�
the method or formula that should be used to apportion the assessments in the Assessment District
proceedings. In addiuon, �lrticles XIIIC and XIIID of the California Consutution reyuire that onl��
special benefits are assessable,that no assessment ma}�exceed the proporaonal special benefit conferred
on the parcel assessed and that publicly�o�vned parcels shall not be exempt from assessment unless clear
and c�nvincing evidence demonstrates that such public o�vned parcels receive no special benefits from
the impro��ements or sen�ices for�vhich the assessment is levied. Special benefit is a particular and
ciisunct benefit over and above general benefits conferred to the public at large on real propern�located
in the,lssessment District. General enhancement of propern'value does not consutute special benefit.
It is necessar}�to idenrif��the benefit that thc��'orks of Improvement w�ill render to the properues�vithin
the .�ssessment District. It is also necessar�' that the properties receive a special and ciirect benefit as
ciistinguished from general benefit to the general public.
The responsibilin�rests�vith the�lssessment Engineer who is appointed far the purpose of anal�-zing the
facts and determining the method or formula for apportionment(spread) of the assessment obligation
to the benefitted properties. For these proceedings, thc Cit}' has retained the firm of
nfuniFinancial/��'illdan as the��ssessment Engineer.
The�lssessment l�:nginecr makes the recommendation for the method of apportionment at the public
hearing. The final authorit}� and acuon rest �vith the Cin� Council after hearing all testimon�� and
evidence presented at the public hearing and the tabulation of assessment ballots. C;pon conclusion of
the public hearing,the Cit}•C:ouncil must make the final action in deternzining that the assessment has
been made in direct proportion to the benefit received. Ballot tabulation will then be completed,and if
a majoriry of ballots,weighted b}�assessment amount, are in support of the assessment, then the Cin•
Council may�establish the�lssessment District.
BFIv F:F'I'I'
The improvements to the:�ssessment District include improvements to the street,sanitan•sewer,storm
drain,water main and overhead utiliri�sy�stems. "17�e benefits attributable to each improvement�vill bc
discussed separatel}�.
General Benefit
�1 pordon of the public impro��ements, sewers and streets �vill com�e}� public benefit beti�ond the
properties within the District. Therefore, the costs of these impro��ements�vill not be assessed to the
properties within the District.
MuniFinancial �xhibit N; - Pagc 1 City of Palm Desert
'1'hc c�sung 12-inch se�ver linc under the Southcrn Pacific Railroad tracks and I-10 roadwa�•���ill bc
replaced�vith an 18-inch sewer that also will provide sewer capacit��for areas outside the district. 'I'his
general bcnefit is estimated to bc �123,82] and�vill not be assessed to properties «7thin the I�istrict.
Construction of Portola�lvenue to its ultimate�vidth is not a condition of approval for de��elopment of
the properties within the District. Construcaon of I'ortola:1��enue to its ulumate width is a benefit to
the public at large and constitutes the same�eneral benefit. The cost of this general benefit is estimated
at�713,2-�G and will be contributed b}'the Cin'of Palm Dcscrt. "1'his general benefit will n�t be assessed
to the propertics within the I�istrict.
Special Benefit
.111 of the improvements are necessar}�for the orderl}�de�-elopment of the properties�vithin the District
to achieve the full potential consistent with the(:it}'s General Plan. These impro��ements in total or in
�art are reyuired as conciitions for an�• subdi��ision of the parcels or building permit application.
Some of these impro��ements will also benefit school ciistrict pro�erues within the boundar}• of the
llistrict. F Iowe��er, thesc impro�-cments, without an}� reduction in length or sizc, are still required to
ser�-e the other developments within thc District. In addiuon, most of the other properties bcing
assesscd ma�-utilize the school facilities when built and the improvements that will sen�c it. '1'herefore,
the school district propert5• will receive no special benefit that is not alread}' conferred �n other
properaes �vithin the llistrict.
BENEFIT ANALYSIS AND METHOD OF ASSESSMENT
Streets
Streets to be constructed as impro��ements in the district will benefit the properties to different
degrees. In recognition of this factor, streets are classified inro t�vo benefit categories,i.c. rlrterial
and Collector. Generall}� the tlrterial streets benefit all of the de��eloper's properh�, the Collector
streets benefit onl}- some developers. Since the streets are necessary and required for the
de��elopment of the number of units on the properties, the corresponding assessments will be bascd
on the potential number of units that will be constructed on the properties.
'11ie].o�ves parcel will be constructing portions of the rlrterial streets —east side of i�lontereti� and
the north side of Gerald Ford across their propert��. Thet�will also be construcung a portion of the
south side of"�1" Street, a collector. 'l�e costs of these impro��ements are a credit to the ].owes
parcel,�vhich offsets entirelti• an}�benefit from the strect unpro��ements. Two other parcels on thc
north side of 35'h r�venue either constructed portions of 35ih�lvenue or are served b�� streets to the
north and recei��e no benefit from the ciistrict impro��ements.
'1'hc parcel, Summit i�4onterc}'Propertics: .1PN G�3-2�0-007,would also be sen-ed b�• streets to the
north but does reccive improeed access and benefit,albeit a reduced benefit, from the construction
of 35�h �1�•enue.
Storm Drains
'I'he storm drains are required to protect both thc properucs to be de��eloped as wcll as downstream
pr�perties. Since the units of development c�uld n�t be constructed on the properties�vithout the
MuniFinancial L�hibit �- Pagc 2 City of Palm Desert
storm cirains, thc assessments will bc based on the number of units or equivalent units to bc
developed on each propert}�.
Thc Sares-Regis, Summit I�lonterey Properties and Desert ��'ells parcels (653-250-0�G, G�3-2G0-0-�1,
G�3-2G0-0�2, 6�3-2C0-021, and 653-2C0-02)) will not be assessed for Storm Drains. '1'hc Sares-Kegis
anci DeBonne parcels are constructing on-site retention basins,which will contain all incremental run-
off on their properties. The Noble parcel alread}•includes a retenrion basin,�vhich adeyuately scr�•es the
parccl.
Sewers
Sanitar�� sewers are required to de��elop the units on the propert}�. '17�erefore, the assessments w�ill be
based on thc number of units or potential units to be devcloped on the propertics. "1'hc removal �f
the existing 12-inch sewer with an 18-inch sewer at the northeast section of the district�vill also
sen•e properues westerly of I�fontere�•Avenuc. "1'he cost of the sen�ice to that area�vill be e�:cluded
from the cost assessed to properties �vithin the district.
Water System
�t'atermains are required to develop the units on the properh�. �xcept for the Lowe's parcel,which is
constructing�vatermains to serve its property,the benefit and corresponding assessments�vill be based
on the number of units or potential units to be dc�-eloped on the properties.
Rights-of-WaX
Rights-of-wa�•�vill be required to construct the improvements and benefit the parcels �vhere existing
strcet or utilin�easements do not exist. �1n amount will be assessed for thc cost of these ri�hts-of-wa��.
If the properties dedicate the required rights-of-wa5�at no cost to the district,i.e.gratis,then a creciit of
the amount of the dedicated right-of-wa}��vill be given.
Land Acquisition
I.and�vill be necessar�� to expand and enlarge the drainage basin. Since this is a special benefit to all
properues that currendy do not or will not discharge to the smaller existing basin, the cost of lanc3
acyuisition�vill be assessed to those properaes newly discharging to the basin.
DISTRICT PROPERTIES
"1'here arc eight (7) property� o�vners who own sixteen (189) indi��idual assessors parcels. .1 potential
school parcel consisting of 25 acres will be can�ed out of two of the exisung parcels. 'I'he propern�
owners and individual ownerships are as follows:
Owner Assessot Parcels
I�icLeod C53-260-022, 023,024,025
Lo�ves G53-260-018
Sares-Rcgis 653-2G0-021, 029
Rillington Parcels�vithin Bk 653Pgs 85 and 8G
Pondcrosa Homes 653-260-016,033,035,03G
Dcscrt��'ells G53-260-041,043
Summit I�lontere}' Propertics G�3-250-05G
MuniFinancial Exhibit I-: - Page 3 City of Palm Desert
DEVELOPMENT POTENTIAL
Some of the properties ha��e development enutlements and others do not. In order to establish a
Ucncfit analvsis for thc improvemcnt district, each one of the developers�vas assi�,med a total
de�•elopment potential. '1'his was based on actual enudements or estimated devclopment potential
based on current zoning of the properties. There is a mixture of single-famil}•,multi-famil}�,
commercial and school zoned properties. It is generally accepted practice to assign an cyui��alent of
five (�) dwelling units per acre for commercial or school properties when the exact nature of the
dcvelopment is uncertain. For single and mulu-family units, the numbcr of units will be based on
the actual number of units allowed to be developed on thc properties.
The following is the number of development or potential de��elopment units assigned to cach
dcvclopment.
Developers Units
I�Icl.e�cl 220
Lowcs 103
Sares Regis 320
Rillington 159
Pondcrosa Homes 420
Desert�ti'ells 282
Summit Properties 3G
School Site 11�
Total Potential L'�nits 1,G5�
Conclusion
In conclusion,it is my�opinion that the assessments for Section 29.�ssessment District No.200�-02 arc
allocated in accordance with the direct and special benefit that the land receives from the �l'orks of
Improvement.
I�1uniFinancial/��'illdan
1lssessment Engineer
Cih� of Palm Desert
State of California
Signed b�•
Richard L. Kopecky�,P.E. (CF. 16742)
MuniFinancial �xhibic �- Page 4 City of Palm Desert
ENGINEER'S REPORT
SECTION 29 ASSESSMENT DISTRICT NO. 2004-02
CITY OF PALM DESERT
EXHIBIT F -ASSESSMENT DIAGRAM
�1 lliagram sho�ving the rlssessment District,the boundaries,and the ciimensions of thc subdivisions of
land within the �lssessment District as the}� existed at the time of the passagc of the Resolution of
Intention is filed �vith and made a part of this lteport and part of the asscssment. �ach of the
subcii��isions of land,parcels,or lots will be given a separate number on the�lssessment Diagram,which
corresponds with the assessment number shown on the .-lssessment Roll (Exhibit C).
The Boundar�� I�fap in a reduced-scale format follows.
MuniFinancial Eahibit F - Page 1 City of Palm Desert
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ENGINEER'S REPORT
SECTION 29 ASSESSMENT DISTRICT NO. 2004-02
CITY OF PALM DESERT
EXHIBIT G— RIGHT-OF-WAY
Rights-of-�va�� on the following .�lssessor Parcel Numbers �vill need to be dedicated or acquired in
Section 29 .'�ssessment District No.200�-02 bti• the Cit��of Palm Desert.The estimated amount of the
rights-of-wa}-cost has been added to each right-of-wat� parcel's assessment amount.
"1'he Streets and f�ighwa��s Code allows a credit for an}�right-of-�va}�and is granted�;ratis. I-;ach parcel
o�vner who grants the necessar}�right-of-�va}-gratis for the impro��ements will be gi��en a creciit equal to
the amount of the assessment to the parcel for street right-of-way. The Cit}� is in the process of
obtaining ri�ht-of-�va}'agrccments.
Right-of-Way
Assessor Assessment Ptoperty Assessment Cost
Parcel ID Owner
Number
653-250-Q56 1 Summit �-tontere��Pro erties S702,521.82
G53-2G0-022 5 i�lacLeod Couch Land Co S1,-�4�,7G�.50
G�3-2C0-023 G I�facLcod Couch I.and Co $553,053.-}-}
G53-2G0-02� 7 �1C Pro crttes $1,956,089.18
(53-260-025 8 School Site �7G,978.00
653-2G0-033 10 Ponderosa f Iomes II Inc SS-33,00G.00
G53-2G0-021 15 G'1'F.CaliE Inc �-�G,6-4-�.00
653-2G0-029 16 .1rt Palm Ltd Partnershi �253,238.00
Total S5,577,295.9�
MuniFinancial �xhibit G - Page 1 City of Palm Desert
ENGINEER'S REPORT
SECTION 29 ASSESSMENT DISTRICT NO. 2004-02
CITY OF PALM DESERT
EXHIBIT H—MAXIMUM ANNUAL ADMINISTRATION COST ADD-ON
In adciiuon to or as a part of the assessment lien le��ied against each parcel of land�vithin the.lssessment
I�istrict, each parcel of land shall also be subject to an annual administrative cost add-on to pay- costs
incurred b}�the Cin•,and not other�vise reimbursed,which result from the ac.iministrauon or registration
of an��bonds and or/resen�e or other related funds. The maximum annual total amount of such annual
administrati��e cost add-on for each parcel within the.�ssessment District�vill not exceed S50.00. L'ach
parcePs share of the administrative cost add-on shall be computed based on the parcel's proportionate
share of its annual assessment (not ro exceed $50.00.)
MuniFinancial �.xhibit H - Pa�c 1 City of Palm Desert
SCHOOL DISTRICT FUNDING AGREEMENT
This SCHOOL DISTRICT AGREEMENT(the "Agreement") is dated as of
, 2007 and is entered into by and between the CITY OF PALM DESERT, a
California municipal corporation ("City") and the PALM SPRINGS UNIFIED SCHOOL
DISTRICT("School DistricY').
RECITALS
A. The City has established the City of Palm Desert Section 29 Assessment
District in the City of Palm Desert(the"Assessment District") pursuant to the provisions of the
Municipal Improvement Act of 1913 (California Streets and Highways Code Section 10000, et
se .).
B. The City intends to authorize the issuance and sale of not to exceed
�40,000,000 principal amount of City of Palm Desert, Section 29 Assessment District (No. 2004-
02), Limited Obligation Bonds, Series 2007 pursuant to the Improvement Bond Act of 1915
(California Streets and Highways Code Section 8500, et se,,�c.) (the"Bonds") to represent
assessments levied against properties in the Assessment District which remain unpaid at the end
of a thirty-day cash collection period for the purpose of financing certain acquisitions and
improvements to be owned by the City and of benefit to the assessable properties in the
Assessment District (collectively, the"Improvements"), which Improvements are more fully
described in the final Engineer's Report prepared in connection with the Assessment District
entitled, "City of Palm Desert Engineer's Report, Section 29 Assessment District, No. 2004-02"
(the"Engineer's Report"), which Engineer's Report may be modified from time to time.
C. The School District is the owner of the land described on Exhibit"A" and
located within the boundaries of the Assessment District (the"SD Property"). The SD Property,
being public property, is exempt from the assessments levied within the Assessment District.
D. Certain of the Improvements will be installed and constructed in proximity
to the SD Property and the School District desires to execute and deliver this Agreement to
provide for a contribution by the School District of a portion of the cost of the installation and
construction of the Improvements which may be utilized for the use of the SD Property in the
future.
NOW, THEREFORE, in consideration of the foregoing recitals, and other good and
valuable consideration, the sufficiency of which is hereby irrevocably acknowledged, the School
District and City hereby agree as follows:
1. Payment. On or before February 12, 2007, the School District shall pay to the
City by cash, cashier's check or wire transfer the sum of$865,330.59 (the "Funds"). Time is of
the essence of the provisions of this Section 1 above.
2. Ri t-of-way. In order for the Improvements to be installed that may be utilized
by the School District for the SD Property, the School District shall dedicate sufficient right-of-
way(an irrevocable offer of dedication) described on Exhibit B, attached hereto on or before
February 12, 2007.
P6401-1033\937239v4.doc
3. Citv Use of Funds. Upon receipt, the City shall deposit the Funds in the
improvement fund established for the Assessment District (or a temporary account pending the
establishment of the improvement fund) and shall use the Funds for the payment of a portion of
the cost and expenses of the Improvements and for no other purpose.
4. Termination. In the event that the City does not issue the Bonds within eighteen
months of the date of this Agreement, this Agreement shall terminate and be of no further effect
and the City shall return the Funds to the School District and release the irrevocable offer of
dedication.
5. School District Covenant; Waiver and Release. The School District hereby
covenants not to file, assert or otherwise make any claims it may now have or may hereafter
acquire that this Agreement is not enforceable(whether such claims are made on its own
initiative, or as a defense in an action by City to enforce this Agreement), and the School District
hereby irrevocably waives and releases any and all such claims.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the date and year first set forth above.
CITY: CITY OF PALM DESERT,
a California municipal Corporation
By:
Print Name:
Title:
SCHOOL DISTRICT: Palm Springs Unified School District
By:
Print Name:
Title:
2
P6401-1033\937239v4.doc
EXHIBIT "A"
Descrintion of School
District Land
(Attached)
A-1
P6401-1033\937239v4.doc
Nov 30 06 04:27p Myron MaaL�od 858-832-1033 p.3
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EXHIBIT "A" �d A�d
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PARCEL MAP WAIVER - CtTY OF PAI.M DESERT
Prepored by. � Owner: Approved By.
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P6401-1033\937239v4.doc
EXHIBIT "B"
Description of Right-Of-Way
� EXHIBIT 'B'
RIGHT--OF'-WAY DEDICAYION
SW 1/4 SEC. 29. T. 4 5., R. 6 E., S.6.M. b
A.P.N. 653-26U-023/025 �,��
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39� i �.
CURVE DATA I
N0. OELTA RADIUS LENC�1 • TAIJOEfJT n� A��OBCi� �D�
1 1 1 o I' �.�I.�. �g'�'�
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IR�C. �/4�/�, O.R. � 43.605 5Q. FT.
I1.001 I1C.
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u� o�T� 8 �`Q;�
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i
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B-1
P6401-1033\937239v4.doc
JRN-03-2007 15�50 MJNIFINRNCIRL 8883266864 P.02i02
EXHIBIT 'B'
RIGHT—O�—WAY D£DICATION
!;W 1/4 SEC. 29, T. 4 S., R. 6 E., S.B.M.
A.P.N. 653-260-022/a24
O�A9t. 48 � I � � 9/�
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uo �
CI�IYE DATA
N0. OELTA . RADIUS LENCTFI TNKiFM PARCEL �A�
Ci � �
Ct l 4 t . 124.51� SQ. fT. �"
� . 2.B59 AC. r
4 1. 2 1 n Q
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1.� DATA � ��� S
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�„ � 2�� � 1�S��a('1!0)5269111� PAt C/E0��LTYO
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TOTAL P.92
B-2
P64Q1-1033\937239v4.doc
PURCHASE AND SALE AGREEMENT
AND ESCROW INSTRUCTIONS
This PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS (this
"Agreement") is dated as of _, 2007 (the"Effective Date"), and is entered
into by and between the CITY OF PALM DESERT, a California municipal corporation (the
"Buyer"), and MONTEREY 170, LLC, A California Limited Liability Company(the "Seller").
RECITALS
A. Seller is the owner of the unimproved land in the City of Palm Desert,
County of Riverside, State of California that is more particularly described on Exhibit"A"
attached hereto and made a part hereof, together with all improvements thereon, and all rights
and appurtenances pertaining to such land, including all right, title and interest of Seller in and to
adjacent streets, alleys or rights-of-way and appurtenant easements (collectively, the"Property").
B. Buyer has established the City of Palm Desert Section 29 Assessment
District in the City of Palm Desert (the "Assessment District") pursuant to the provisions of the
Municipal Improvement Act of 1913 (California Streets and Highways Code Section 10000, et
se�c.), which Assessment District includes the Property.
C. Buyer intends to authorize the issuance and sale of not to exceed
$40,000,000 principal amount of City of Palm Desert, Section 29 Assessment District (No. 2004-
02), Limited Obligation Bonds, Series 2007 pursuant to the Improvement Bond Act of 1915
(California Streets and Highways Code Section 8500, et seg.) (the"Bonds") to represent
assessments levied against properties in the Assessment District which remain unpaid at the end
of a thirty-day cash collection period for the purpose of financing certain acquisitions and
improvements, including the acquisition of the Property.
D. Buyer desires to purchase the Property from Seller from Bond Proceeds,
and Seller desires to sell the Property to Buyer.
NOW, THEREFORE, in consideration of the terms and conditions of this Agreement and
for other valuable consideration, the receipt of which is hereby acknowledged, Buyer and Seller
hereby agree as follows:
1. Purchase and Sale. Subject to and in accordance with the terms and conditions
hereinafter set forth, Seller agrees to sell the Property to Buyer, and Buyer agrees to purchase the
Property from Seller.
2. Escrow; Outside Closing Date. Promptly after their execution of this Agreement,
the parties shall open escrow(the"Escrow") at Insurance Company(the "Escrow
Holder"), , Attn: (Escrow Officer)
Phone: ; Fax: , email: , and the parties shall promptly
deliver to Escrow Holder a fully executed copy of this Ageement. The"Close of Escrow" shall
P640 l-I 033\937186v3.doc
be the date that a grant deed for the Property in favor of Buyer is recorded in the Official Records
of the Riverside County Recorder's Office and the Title Company(defined in Section 4b) shall
have committed to issue the Title Policy(defined in Section 5) to Buyer. The Close of Escrow
shall occur on or before the date that is (� days after the Effective Date (the"Outside
Closing Date").
3. Purchase Price. The purchase price for the Property to be paid by Buyer is the
sum of$1,040,000 (One Million Forty Thousand Dollars) (the "Purchase Price").
4. Delivery of Documents and Possession on the Close of Escrow.
(a) On the Close of Escrow, Seller shall cause to be delivered to Buyer a duly
executed and acknowledged Grant Deed in the form attached as Exhibit"B" attached hereto (the
"Grant Deed") conveying to Buyer all of Seller's interest in the Property subject only to the
Permitted Title Exceptions(as hereinafter defined), as provided below.
(b) At the Close of Escrow, Buyer shall receive a Title Policy(as defined in
Section 5) issued by Title Insurance Company(the "Title Company") insuring in
Buyer fee simple title to the Property, free and clear of all liens and encumbrances other than the
Permitted Title Exceptions (as defined in Section 5).
(c) At the Close of Escrow, Seller shall deliver possession of the Property to
Buyer free and clear of all leases and any other possessory interests in the Property.
5. Title and Title Insurance.
(a) Within ten (10) days after the Effective Date, Seller shall deliver to Buyer
a preliminary report for the Property from the Title Company together with copies of all
instruments noted as exceptions therein (the"Preliminary Title Report") and the most recent
ALTA survey of the Property in Seller's possession or under Seller's control, if any(the
"Existing Survey"). Buyer shall have the right in its sole and absolute discretion to update the
Existing Survey, or prepare a new ALTA survey, at Buyer's cost(such updated or new survey is
hereinafter referred to as the"Survey"), provided that Buyer's and its contractors' entry onto the
Property shall be subject to Section 9.
(b) Buyer shall have until the date that is days prior to the
Outside Closing Date to disapprove any exceptions to title shown on the Preliminary Title Report
or reflected on the Survey(collectively, "Disapproved Exceptions") and to provide Seller with
notice of disapproval in writing describing the defect with reasonable particularity(the
"Disapproval Notice"). The period from the Effective Date to the date that is days
prior to the Outside Closing Date is hereinafter refened to as the"Due Diligence Period." Any
cxceptions to title not approved or disapproved by Buyer within the Due Diligence Period shall
be deemed disapproved. Within days after Seller's receipt of a Disapproval Notice
(or days after the Due Diligence Date for exceptions that are deemed disapproved),
Seller shall notify Buyer in writing whether Seller intends to remove the Disapproved
Exceptions. If Seller notifies Buyer of an intention to eliminate the Disapproved Exceptions,
P6401-t033\937186v3.doc 2
Seller shall do so prior to the Close of Escrow. If Seller indicates to Buyer in writing within the
time allowed that Seller does not intend to remove any of the Disapproved Exceptions (or if an
exception is deemed disapproved), or if Seller does not respond, then Buyer may terminate this
Agreement by written notice to Seller or take the Property subject to the Disapproved Exceptions
and cause the Purchase Price to be redetermined as described in Section 3 above. In any event,
Seller shall pay in full all loans secured by mortgages and deeds of trust, any mechanics liens, all
special bonded assessments encumbering the Property, and any other monetary liens or
exceptions (other than current real property taxes and assessments which are not due and
payable) prior to or concurrently with the Close of Escrow, and the Escrow Holder is hereby
directed to cause same to be paid off ftom the proceeds of the Purchase Price. The policy of title
insurance shall include such endorsements as Buyer shall request, but any title policy
endorsements shall be paid for by Buyer. Whether or not Buyer shall have furnished to Seller
any notice of Disapproved Exceptions pursuant to the foregoing provisions of this Agreement,
Buyer may, at or prior to the Close of Escrow, notify Seller in writing of objections to any title
exceptions (including any matters reflected on the Survey) raised by the Title Company or the
surveyor after the Due Diligence Period or Buyer's response to title matters, whichever is earlier.
With respect to any Disapproved Exceptions set forth in such notice, Buyer shall have the right to
accept title subject to such matters or to terminate this Agreement.
(c) Buyer's fee title to the Property shall be insured at the Close of Escrow by a
CLTA(or if elected by Buyer,ALTA)Coverage Owner's Policy of Title Insurance in the amount of
the Purchase Price, issued by Title Company together with all endorsements requested by Buyer
(collectively, the"Title Policy"). The Title Folicy shall insure Buyer's fee interest in the Property
free and clear of all liens,encumbrances,restrictions,and rights-of-way of record,subject only to the
following(the "Permitted Title Exceptions"):
(i) Real property taxes for the then current tax fiscal year which are a
lien not yet due and payable;
(ii) Those title exceptions approved by Buyer or deemed approved by
Buyer pursuant to Section 5(b).
Seller shall not improve, alter, encumber, lease or sell or transfer (or otherwise agree to sell or
transfer) the Property or any portion thereof or interest therein to any other party during the period
from the Effective Date to the Close of Escrow or the date of the termination of this Agreement, as
applicable.
6. Deposit of Documents and Funds in Escrow.
(a) Seller and Buyer, as applicable, hereby covenant and agree to deliver to
Escrow Holder at least one(1)business day prior to the Close of Escrow the following instruments,
documents, and funds, the delivery of each of which shall be a condition of the Close of Escrow.
P6401-1033\937186v3.doc 3
(c) Escrow Holder shall have received Seller's authorization to close and
Seller's notice of approval or satisfaction or waiver of all of the contingencies/conditions to
Seller's obligations hereunder, as provided for in Section 14; and
(d) Seller and Buyer shall have deposited in Escrow the documents and funds
required pursuant to Section 6.
Unless otherwise instructed in writing, Escrow Holder is authorized to record at the Close of
Escrow any instrument delivered through this Escrow if necessary or proper for the issuance of
the Title Policy.
8. Escrow Charges and Prorations.
(a) Seller shall pay: (i) one-half(1 J2) of the escrow fees and charges of
Escrow Holder; (ii) Seller's share of the charges prorated under this Agreement; and (iii) all costs
of Seller's legal counsel and consultants, if any. If the Escrow shall fail to close for any reason
other than Buyer's or Seller's default, Seller shall pay one-half(1/2) of any applicable Escrow
cancellation charges; if Escrow shall fail to close due to Seller's default, Seller shall pay all
Escrow cancellation charges.
(b) Buyer shall pay: (i) one-half(1/2) of the escrow fees and charges of
Escrow Holder; (ii) the cost of the premium for the Owner's Title Policy; (iii) the cost of all
endorsements to the Title Policy; (iv) Buyer's share of the charges prorated under this
Agreement; (v) the cost of an ALTA survey, if required by Buyer; and (vi) all costs of Buyer's
legal counsel and consultants. If the Escrow shall fail to close for any reason other than Buyer's
or Seller's default, Buyer shall pay one-half(1/2) of any applicable Escrow cancellation charges;
if Escrow shall fail to close due to Buyer's default, then Buyer shall pay all Escrow cancellation
charges.
(c) The following shall be apportioned with respect to the Property as of 12:01
a.m., on the day on which the Close of Escrow occurs, as if Buyer were vested with title to the
Property during the entire day upon which the Close of Escrow occurs:
(i) taxes and assessments levied against the Property;
(ii) any operating expenses or other items pertaining to the Property.
(d) Notwithstanding anything contained in Section 8(c), any installment of
taxes or assessments for the current year paid at or prior to the Close of Escrow shall be prorated
based upon the amounts actually paid. If taxes and assessments for the current year have not
been paid before the Close of Escrow, Seller shall be charged at the Close of Escrow an amount
equal to that portion of such taxes and assessments which relates to the period before the Close
of Escrow and Buyer shall pay the taxes and assessments prior to their becoming delinquent.
Any such apportionment made with respect to a tax year for which the tax rate or assessed
valuation, or both, have not yet been fixed shall be based upon the tax rate andlor assessed
valuation last fixed. To the extent that the actual taxes and assessments for the current year differ
from the amount apportioned at the Close of Escrow, the parties shall make all necessary
P6401-1033\937186v3.doc $
adjustments by appropriate payments between themselves following the Close of Escrow. All
delinquent taxes and assessments (and any penalties therein) for periods prior to the Close of
Escrow, if any, affecting the Property shall be paid by Seller.
(e) All prorations shall be determined on the basis of a 360-day year. The
provisions of this Section 8 shall survive the Close of Escrow.
9. Documents and Reports; Due Diligence Date and Due Dili�ence Period; Access.
Seller hereby represents and warrants that it has provided to Buyer copies of any and all permits,
leases, licenses, agreements, contracts, documents, studies, and reports relating to the condition
of the Property or otherwise relating to the Property, including any material analyses, all surveys,
all environmental site assessments, and if material, other documents, in Seller's possession or
under Seller's control (collectively, "Documents and Reports").
Until the end of the Due Diligence Period, Buyer may inspect the Documents and RepoRs
and Buyer and its contractors shall have the right to enter upon the Property during the Due
Diligence Period to make inspections and other examinations of the Property, including without
limitation, the right to perform surveys, soil and geological tests of the Property and the right to
perform environmental site assessments and studies of the Property. In the event that Buyer
elects not to purchase the Property due to a matter disclosed by the Documents and Reports or
due to the condition of the Property, Buyer shall so notify Seller by the Closing Date whereupon
this Agreement shall automatically terminate, or Buyer shall elect to redetermine the Purchase
Price under Section 3 above.
10. Indemnification. Seller hereby agrees to indemnify Buyer against, and to hold
Buyer harmless and, at the option of Buyer, defend Buyer, its officers, directors, employees,
agents and representatives (collectively, "Indemnified Parties") with counsel approved by Buyer,
from all claims, liabilities, losses, damages, costs and expenses, including, without limitation,
legal fees and disbursements, incurred by Indemnified Parties by reason of any claims or
litigation relating to the Property that arises from acts, occurrences, omissions or other matters,
including any that took place on or about the Property prior to the Close of Escrow. The
provisions of this Section 10 shall survive the Close of Escrow, the termination of this
Agreement and/or the delivery of the Grant Deed.
11. Warranties, Representations and Covenants of Seller Re�ardin�The Propertv.
Seller hereby represents, warrants and covenants to Buyer the following, it being expressly
understood and agreed that all such representations, warranties and covenants shall survive the
Close of Escrow and delivery of the Grant Deed:
(a) Hazardous Substances.
(i) Except as disclosed in the Documents and Reports, to the best of
Seller's knowledge, the Property is free and has always been free
from Hazardous Substances (as defined in Exhibit"C") and is not
and has never been in violation of any Environmental Laws (as
defined in Exhibit"C").
P6401-1033\937186v3.doc 6
(ii) To the best of Seller's knowledge, there are no buried or partially
buried storage tanks located on the Property.
(iii) Seller has received no written notice, warning, notice of violation,
administrative complaint,judicial complaint, or other formal or
informal notice alleging that conditions on the Property are or have
been in violation of any Environmental Law, or informing Seller
that the Property is subject to investigation or inquiry regarding
Hazardous Substances on the Property or the potential violation of
any Environmental Law.
(iv) Except as disclosed in the Documents and Reports, there is no
monitoring program required by the Environmental Protection
Agency or any similar state agency concerning the Property.
(v) Except as disclosed in the Documents and Reports, to the best of
Seller's knowledge, no toxic or hazardous chemicals, waste, or
substances of any kind have ever been spilled, disposed of, or
stored on, under, or at the Property, whether by accident, burying,
drainage, or storage in containers, tanks, or holding areas, or by any
other means.
(vi) To the best of Seller's knowledge, the Property has never been
used as a dump or landfill.
(vii) Seller has disclosed to Buyer all information, records, site
assessment reports, remedial action plans and studies maintained
by Seller in connection with the Property and concerning
Hazardous Substances, including, but not limited to, all of such
information, records, reports and studies pertaining to the types and
locations thereof. As part of this representation, Seller shall
provide Buyer a Natural Hazards Disclosure Statement in
accordance with California Civil Code Section 1103.2. Seller has
produced a list of all information, records, reports and studies
maintained by Seller or under Seller's control in connection with
the Property concerning Hazardous Substances and all existing
orders and directives from or agreements with any governmental
agency pertaining to the environmental condition of the Property
and any requests for information, documents, access or
investigation pertaining thereto and such list is contained in
Exhibit"D" attached hereto.
(viii) Seller has made available to Buyer all subpoenas, and all orders,
directives and other requests for information from any government
agency relating to Hazardous Substances and the Property, and all
documents supplied by Seller to a government agency in response.
P6401-1033\937186v3.doc 7
Seller also has made available to Buyer all requests for access,
notices, warnings, notices of violation, orders, directives,
administrative complaints from any government agency, and any
judicial complaints, relating to Hazardous Substances and the
Property, and all documents supplied by Seller to a government
agency in response. Each of these documents is listed in
Exhibit"D." There is no outstanding administrative or judicial
subpoena, or other written request for any documents or
information relating to Hazardous Substances and the Property to
Seller from any government agency.
(ix) Seller has received no written request, directive, administrative
order or judicial order to impose any type of land use restriction or
institutional control relating to Hazardous Substances on the
Property.
(x) Except as disclosed in the Documents and Reports, there is no
outstanding written order, directive or administrative complaint
from any government agency, no outstanding judicial complaint or
order, and no current agreement with any government agency for
any investigation or cleanup of any Hazardous Substance that is on
or was released from the Property.
(b) Seller has full right and power to execute, deliver and perform its
obligations under this Agreement, and when executed and delivered, Seller and all parties having
an interest in the Property shall be lawfully bound by the terms of this Agreement. Seller is the
sole owner of the Property, free and clear of all liens, claims, encumbrances, easements,
encroachments on the Property from adjacent properties, encroachments by improvements or
vegetation on the Property onto adjacent property, or rights of way of any nature, other than those
that may appear on the Preliminary Title Report. Seller shall not further transfer or encumber the
Property or allow the Property to be further encumbered prior to the Close of Escrow.
(c) Any information that Seller has delivered to Buyer, either directly or
through Seller's agents, is accurate and Seller has disclosed to Buyer all material facts with
respect to the Property.
(d) There is no pending litigation or threatened litigation, which does or may
adversely affect the Property.
(e) There is no eminent domain or similar condemnation proceeding affecting
any portion of the Property now pending or, to Seller's knowledge and belief, threatened.
Further, there are no actions or proceedings pending or threatened against Seller or the Property,
before any court or administrative agency in any way connected with or relating to the Property,
or affecting Seller's ability to fulfill all of its obligations under this Agreement.
P6401-1033\937186v3.doc g
(� There are no written or oral commitments to or agreements with any
governmental authority or agency materially and adversely affecting the Property, or any part
thereof or any interest therein, which will survive the Close of Escrow. Seller has entered into no
understanding or ageement with any taxing or assessing authority respecting the imposition or
deferment of any taxes or assessments respecting the Property.
(g) Neither this Agreement nor anything provided to be done hereunder
including the transfer of title to the Property to Buyer, violates or shall violate, any contract,
instrument, partnership agreement, trust agreement, or any other agreement to which Seller is a
party, or which affects the Property or any part thereof, and the sale of the Property herein
contemplated does not require the consent of any party not a signatory hereto.
(h) Seller is not in default of its obligations under any contract, agreement or
instrument to which Seller is a party which would adversely affect the value of the Property or
Seller's ability to perform its obligations hereunder.
(i) There are no natural or artificial conditions upon the Property or any part
of the Property that could result in a material and adverse change in the condition of the Property.
(j) There are no mechanics', materialmen's or other claims or liens presently
claimed or which will be claimed against the Property for work performed or commenced prior
to the date of this Agreement or relating to the environmental condition of the Property. Seller
agrees to hold Indemnified Parties harmless from all costs, expenses, liabilities, losses, charges
and fees, including without limitation attorneys' fees, arising from or relating to any such lien or
any similar lien claimed against the Property and arising from work performed or commenced
prior to the Close of Escrow.
(k) There presently are, and at the Close of Escrow there will be, no oral or
written leases, contracts, agreements, licenses, commitments, or undertakings respecting
maintenance of the Property, or the performance of services on the Property, or the use or
occupancy of the Property or any part of it by which Buyer would become obligated or liable to
any person after the Close of Escrow.
(1) Except for this Agreement there are no written or oral leases or contractual
rights or options to lease, purchase, or otherwise enjoy possession, or any other rights or interests
of any nature in and to the Property or any part thereof, and no persons have any right of
possession to the Property or any part thereo£ Seller shall deliver possession of the Property to
Buyer free of all tenants and other persons or entities, and shall indemnify and hold Indemnified
Parties harmless from the claims of any tenants or persons or entities claiming a right to
possession relating to Seller's occupancy of the Property and arising before or after the Close of
Escrow.
(m) Seller is not a"foreign person"within the meaning of Section 1445(fl(3)
of the Internal Revenue Code.
P6401-1033\937186v3.doc 9
(n) There are no unrecorded contracts or agreements, such as maintenance,
service, or utility contracts relating to or affecting the Property.
Seller shall notify Buyer of any facts that would cause any of the representations
contained in this Ageement to be untrue as of the Close of Escrow. Seller agees to indemnify
Buyer and defend and hold Buyer harmless from all loss, costs, liability, expense, damage, or
other injury, including without limitation attorneys' fees and expenses, and all other costs and
expenses incurred by reason of, or in any manner resulting from the breach of any warranties and
representations in this Section. The provisions of this Section shall survive the Close of Escrow
and delivery of the Grant Deed or the termination of this A�-eement (as applicable).
12. Representations and Wananties of Buver. Buyer hereby represents and warrants
to Seller the following, it being expressly understood and agreed that all such representations and
warranties are to be true and correct at the date of this Agreement and as of the Close of Escrow:
(a) Buyer has the full power and authority to enter into this Agreement and
consummate the transactions contemplated hereby. The execution, delivery and performance of
this Agreement has been duly and validly authorized by Buyer, and no other action by Buyer is
requisite to the valid and binding execution, delivery, and performance of this Agreement by
Buyer.
(b) There is no pending litigation or, to the best of Buyer's knowledge,
threatened litigation, which does or will materially and adversely affect Buyer's ability to
consummate this transaction.
13. Buver's Conditions. Buyer's obligations under this Agreement are expressly
made subject to the following conditions precedent solely for the benefit of Buyer. The Close of
Escrow and Buyer's obligation to consummate the purchase of Property shall be contingent upon
and subject to written notice to Escrow Holder by Buyer of the occurrence of all of the following
(or Buyer's written waiver thereof, on or before the Close of Escrow:
(a) Buyer's obtaining a satisfactory commitment issued by Title Company to
issue the Title Policy in favor of Buyer with a liability amount equal to the Purchase Price
showing Buyer's fee interest in the Property subject only to the Permitted Title Exceptions.
(b) That as of the Close of Escrow, the representations and warranties of
Seller contained in this Agreement are all true and correct.
(c) Seller's delivery of all documents and funds required to be delivered by
Seller pursuant to Section 6 hereof.
(d) Buyer's approval, prior to the Closing Date, of the physical condition of
the Property, including without limitation, any and all inspections, tests, Survey(s), and other
studies to be conducted by Buyer, in Buyer's sole and absolute discretion, including without
limitation, any environmental site assessments, investigations, studies and reports, and Buyer's
approval of the Documents and Reports. Buyer's approval of any such inspections of the
Property shall not alter or diminish Seller's representations or warranties under this Ageement,
P640 I-1033\937186v3.doc 1�
and Seller acknowledges and agrees that Buyer is nonetheless relying on Seller's representations
and warranties made herein, unless such representation or warranty is specifically waived in
whole or in part by Buyer in writing.
(e) The issuance and sale of the Bonds and the deposit in the acquisition account
of the improvement fund established in connection with the Assessment District of an amount
sufficient to pay the Purchase Price and any closing costs(including title insurance costs)payable by
Buyer. The Buyer shall be obligated to pay the Purchase Price and such costs solely from amounts
on deposit in the acquisition account on or after the closing date of the Bonds. The City makes no
warranty, express or implied, that the proceeds of the Bonds deposited and held in the acquisition
account will be sufficient for payment of the Purchase Price. Nothing herein shall be construed as
requiring the City to issue the Bonds or any portion thereof or even to use"good faith"efforts to do
so.The legal proceedings and the principal amount,interest rates,terms,conditions and timing of the
issuance and sale of the Bonds shall be in all respects subject to the absolute discretion and approval
of the City Council or such City officers to whom the City Council has delegated the authority for
such absolute discretion and approval.
(fl The Seller shall not have made any material misrepresentation or omission
in any written materials furnished in connection with any preliminary official statement or
official statement used in connection with the sale of the Bonds.
(g) The Seller shall not have at any time challenged the validity of City of
Palm Desert Benefit Assessment District No. 1, the Assessment District, any of the Bonds or the
levy of assessments in City of Palm Desert Benefit Assessment District No. 1 or the Assessment
District.
If any of the foregoing conditions precedent has not been either met to Buyer's sole and
absolute satisfaction (and has not been expressly waived in writing by Buyer on or prior to the
Closing Date), then this Agreement shall, at the option of Buyer, terminate, in which event,
except as expressly set forth in this Agreement, neither party shall have any further rights, duties
and obligations hereunder.
14. Seller's Conditions. For the benefit of Seller, the Close of Escrow and Seller's
obligation to consummate the sale of the Property shall be contingent upon and subject to written
notice to the Escrow Holder by Seller of the occurrence of all of the following (or Seller's written
waiver thereo�, on or before the Close of Escrow:
(a) Deposit by Buyer of the Purchase Price, and all other sums to be deposited
by Buyer in Escrow in accordance with the requirements hereof.
(b) Buyer's delivery of all documents reyuired to be delivered by Buyer
pursuant to Section 6 hereof.
(c) That as of the Close of Escrow the representations and warranties of Buyer
contained in this Ageement are all either true and correct.
P6401-1033\93 7186v3.doc 1 1
15. Change in Condition; Condemnation. If at any time prior to the Close of Escrow,
the Property becomes contaminated with Hazardous Substances, then Buyer may terminate this
Ag�eement. Buyer agrees (to the extent permitted under applicable law) that Buyer will not
condemn any portion of the Property. If at any time prior to the Close of Escrow, the Property, or
any portion thereof, is taken or appropriated by an entity other than Buyer through eminent
domain or similar proceedings, or is condemned by an entity other than Buyer for any public or
quasi-public use, Buyer may not terminate this Agreement, but Buyer shall be entitled to receive
all condemnation proceeds actually paid for that portion of the Property taken.
16. Default. ln the event of a breach or default under this Ageement by either Seller
or Buyer, the non-defaulting party shall have the right to terminate this Agreement and the
Escrow by delivering written notice thereof to the defaulting party and to Escrow Holder, and if
Buyer is the non-defaulting party, Buyer shall have the right to obtain damages, or Buyer may
obtain specific performance. Such termination of the Escrow by a non-defaulting party shall be
without prejudice to the non-defaulting party's rights and remedies against the defaulting party at
law or equity.
17. No Relocation Assistance. The total compensation to be paid by Buyer for the
Property is the Purchase Price, which consideration covers all land and improvements,
equipment, loss of business goodwill, and relocation assistance, and is the full and complete
acquisition cost of the Property. Buyer shall have no obligation to Seller under the California
Relocation Assistance and Real Property Acquisition statutes and guidelines. Except for any
breach of terms or conditions contained in this Agreement, Seller waives and forever releases
Buyer, including its successors, officers, employees, attorneys, agents, representatives and
anyone else acting on Buyer's behalf, of and from any and all claims, demands, actions or causes
of action, obligations, liabilities, or claims for further compensation, known or unknown, based
upon or relating to the facts or allegations and circumstances arising from Buyer's acquisition of
the Property. By such release, Seller expressly waives its rights, if any, under California Civil
Code Section 1542 which provides:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST 1N HIS FAVOR AT THE TIME OF EXECUTING
THE RELEASE WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
Seller's Initials
18. Notices. All notices and demands shall be given in writing by certified mail,
postage prepaid, and return receipt requested, or by personal delivery. Notices shall be
considered given upon the earlier of(a) personal delivery, (b)two (2) business days following
deposit in the United States mail, postage prepaid, certified or registered, return receipt
requested, or(c) 24 hours after deposit with a reputable overnight delivery service (such as
Federal Express). Notices shall be addressed as provided below for the respective party;
PG401-1033\9371A6v3.doc IZ
provided that if any party gives notice in writing of a change of name or address, notices to such
party shali thereafter be given as demanded in that notice:
Buyer: City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260
Attn: Finance Director
Phone: (760) 346-0611
Seller:
Attn:
Phone:
Escrow
Holder: As set forth in Section 2.
19. Broker's Commissions. Buyer represents and warrants to Seller that Buyer has
used no broker, agent, finder or other person in connection with the transaction contemplated
hereby to whom a brokerage or other commission or fee may be payable. Seller represents and
warrants to Buyer that Seller has used no broker, agent, finder or other person in connection with
the transaction contemplated hereby to whom a brokerage or other commission or fee may be
payable. Each party indemnifies and agrees to defend and hold the other harmless from any
claims resulting from its breach of the warranties, representations and covenants made by it in
this Section.
20. Standard Escrow Instructions. Each party agrees to execute Escrow Holder's
supplemental reasonable standard instructions as may be necessary or proper in order to
consummate the transactions contemplated by this Ageement; provided, however, in the event
of a conflict between the terms hereof and the terms of such standard instructions, the terms
hereof shall control.
21. Time is of the Essence. The parties hereto agree that time is of the essence with
respect to each term, condition and covenant hereof.
22. Entire A�reement. This Agreement, together with all exhibits hereto, integrates
all of the terms and conditions mentioned herein or incidental hereto, and supersedes all
negotiations or previous agreements between the parties or their predecessors in interest with
respect to all or any part of the subject matter hereof.
23. Severabilitv. Invalidation of any of the terms, conditions, covenants, or other
provisions contained herein by jud�nent or court order shall in no way affect any of the other
terms, conditions, covenants, or provisions hereof, and the same shall remain in full force and
effect.
P6401-1033\937186v3.doc 13
24. Amendments. Any amendments to this Agreement shall be effective only when
duly executed by Seller and Buyer and deposited with Escrow Holder.
25. Attornevs' Fees. In the event that suit is brought for the enforcement of this
Agreement or as the result of any alleged breach thereof, the prevailing party or parties in such
suit shall be entitled to recover their reasonable attorneys' fees, costs, and expenses from the
losing party or parties, and any judgment or decree rendered in such proceedings shall include an
award thereof.
26. No Third Party Beneficiaries. This Agreement is entered into for the sole benefit
of Seller and Buyer, and no other parties are intended to be direct or incidental beneficiaries of
this Agreement and no third party shall have any right in, under or to this Agreement.
27. Governing Law. This Ageement shall be governed by and construed in
accordance with the laws of the State of California.
28. Counterparts. This Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original,but all of which together shall constitute
one and the same instrument.
29. Assi�.nment of Agreement. Neither party may assign or transfer their respective
rights or obligations under this Agreement without the prior written consent of the other.
30. Construction of Document. This Agreement is the result of a negotiation and is
not the product of any one party. There shall be no presumption in the interpretation hereof that
any ambiguity is to be resolved against any party hereto. The parties hereto waive expressly each
and all provisions of California Civil Code Section 1654, which provides: "IN CASES OF
UNCERTAINTY NOT REMOVED BY THE PRECEDING RULES, THE LANGUAGE OF A
CONTRACT SHOULD BE INTERPRETED MOST STRONGLY AGAINST THE PARTY
WHO CAUSED THE UNCERTAINTY TO EXIST."
31. Special Release and Covenant bv City. Buyer shall be responsible for the design and
construction of any improvements to the Property that are made after the Close of Escrow and are not
made by Seller("Future Improvements"), and Buyer hereby releases any claim it may have against
Seller relating to Buyer's design and construction of Future Improvements. City shall substantially
complete [DESCRIBE FILLING/COMPACTION WORK RE: ENCROACHMENT ONTO
ADJACENT LAND PRESUMABLY OWNED BY SELLER; DESCRIBE ON AN EXHIBIT?] on
or before June 20, 2007, subject to extension by delays beyond the control of the City.
P6401-1033\937186v3.doc 14
IN WITNESS WHEREOF,the parties have caused this A�-eement to be executed as of the
date first above written.
BUYER: SELLER:
THE CITY OF PALM DESERT, a
California municipal corporation
By: BY�
Print Name: Print Name:
Title: Title:
Attest:
By:
Print Name:
Title:
Approved as to form by:
RICHARDS, WATSON & GERSHON,
Special Counsel
By:
P6401-1033\937186v3.doc 15
EXHIBIT "A"
LEGAL DESCRIPTION OF THE LAND
Real property in the City of Palm Desert, County of Riverside, State of California, described as
follows:
PARCEL A:
A PORTION OF PARCELS 1, 2, G AND H AS SHOWN ON PARCEL MAP NO. 24255 ON
FILE IN BOOK 206, PAGES 94 THROUGH 99 INCLUSIVE, OR PARCEL MAPS,
RIVERSIDE COUNTY RECORDS, CALIFORNIA, BE1NG WITHIN A PORTION OF THE
NORTH ONE-HALF OF SECTION 29 TOWNSHIP 4 SOUTH RANGE 6 EAST, SAN
BERNARDINOO BASE AND MERIDIAN, IN THE CITY OF PALM DESERT, COUNTY OF
RIVERSIDE, STATE OF CALIFORNIA.
PARCEL B:
A PROTION OF PARCEL 3 OF RECORDS OF SURVEY FILED IN BOOK 40, PAGE 69 OF
RECORDS OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY
APN: 653-250-050-0
P6401-1033\937186v3.doc A-1
EXHIBIT "B"
FORM OF GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Palm Desert
APN:
Exemut from recordine chanees under Government Code Section 6103
[SPACE ABOVE FOR RECORDER'S USE ONLY]
GRANT DEED
THE UNDERSIGNED GRANTOR DECLARES AS FOLLOWS:
This transfer is exempt from documentary Transfer Tax pursuant to Revenue & Taxation
Code Section 11922.
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
(the"Grantor") hereby grants to the CITY OF PALM
DESERT, a California municipal corporation, the real property located in the City of Palm
Desert, County of Riverside, State of California, that is described on "Exhibit A" attached hereto
and incorporated herein by reference.
IN WITNESS WHEREOF, Grantor has executed this Grant Deed as of the date set forth
below.
Dated: , 2006
GRANTOR:
By:
Print Name:
Title:
P6401-I 033\937186v3.doc B-1
STATE OF CALIFORNIA )
)ss.
COUNTY OF )
On the day of ,20_,before me, ,personally
appeared , personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity and that by his signaturc on
the instrument the person or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
Notary Public
SEAL:
STATE OF CALIFORNIA )
)ss.
COUNTY OF )
On the day of ,20_,before me, ,personally
appeared , personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity and that by his signature on
the instrument the person or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
Notary Public
SEAL:
P6401-1033\937186v3.doc B-2
EXHIBIT A TO GRANT DEED
LEGAL DESCRIPTION
P6401-1033\937186v3.doc B-3
CERTIFICATE OF ACCEPTANCE FOR GRANT DEED
This is to certify that the interest in real property conveyed by the deed dated ,
20 , from to the CITY OF PALM DESERT is hereby accepted by
the undersigned officer or agent on behalf of the City of Palm Desert pursuant to authority
conferred by resolution of the City Council of the City of Palm Desert, adopted on ,
20_, and the grantee consents to recordation thereof by its duly authorized officer.
CITY OF PALM DESERT
By:
Name:
Title:
DATED: , 20
P6401-1033\9371A6v3.doc B-4
STATE OF CALIFORNIA )
)ss.
COUNTY OF RIVERSIDE )
On the day of ,20_,before me, ,personally
appeared , personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity and that by his signature on
the instrument the person or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
Notary Public
SEAL:
STATE OF CALIFORNIA )
) ss.
COUNTY OF RIVERSIDE )
On the day of ,20_,before me, ,personally
appeared , personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity and that by his signature on
the instrument the person or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
Notary Public
SEAL:
P6401-1033\937186v3.doc B-$
EXHIBIT "C"
CERTAIN DEFINITIONS
Environmental Laws means all federal, state, local, or municipal laws, rules, orders,
regulations, statutes, ordinances, codes, decrees, or requirements of any government authority
regulating, relating to, or imposing liability or standards of conduct concerning any Hazardous
Substance(as later defined), or pertaining to occupational health or industrial hygiene(and only to
the extent that the occupational health or industrial hygiene laws,ordinances,or regulations relate to
Hazardous Substances on, under, or about the Property), occupational or environmental conditions
on, under, or about the Property, as now or may at any later time be in effect, including without
limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980
(CERCLA) �42 USCS �� 9601 et seq.J; the Resource Conservation and Recovery Act of 1976
(RCRA) (42 USCS ¢� 6901 et seq.J; the Clean Water Act, also known as the Federal Water
Pollution Control Act (FWPCA) [33 USCS ,�¢ 1251 et seq.J; the Toxic Substances Control Act
(TSCA)[I S USCS��2601 et seq.J;the Hazardous Materials Transportation Act(HMTA)[49 USCS
SS'�'1801 et seq.J;the Insecticide,Fungicide,Rodenticide Act[7 USCS¢�136 et seq.J;the Superfund
Amendments and Reauthorization Act(4Z USCS,¢,yS 6901 et seq.J; the Clean Air Act�42 USCS�¢'
7401 et seg.J;the Safe Drinking Water Act[42 USCS��300f et seq.J;the Solid Waste Disposal Act
�42 USCS¢�6901 et seq.J; the Surface Mining Control and Reclamation Act[30 USCS�;¢1201 et
seq.J;the Emergency Planning and Community Right to Know Act[42 USCS��11001 etseq.J;the
Occupational Safety and Health Act[29 USCS¢¢655 and 657J;the California Underground Storage
of Hazardous Substances Act (H& S C�¢ 25280 et seq.J; the California Hazardous Substances
Account Act[H&S C¢�25300 et seq.J;the California Hazardous Waste Control Act�H&S C,¢;¢
25100 et seq.J; the California Safe Drinking Water and Toxic Enforcement Act�H 8c S C y�¢24249.S
et seq.J; the Porter-Cologne Water Quality Act [Wat C ,�� 13000 et seq.J together with any
amendments of or regulations promulgated under the statutes cited above and any other federal,state,
or local law, statute, ordinance, or regulation now in effect or later enacted that pertains to
occupational health or industrial hygiene, and only to the extent that the occupational health or
industrial hygiene laws, ordinances, or regulations relate to Hazardous Substances on, under, or
about the Property, or the regulation or protection of the environment, including ambient air, soil,
soil vapor, groundwater, surface water, or land use.
Hazardous Substances includes without limitation:
(a) Those substances included within the definitions of hazardous substance, hazardous
waste, hazardous material, toxic substance, solid waste, or pollutant or contaminant in CERCLA,
RCRA, TSCA, HMTA, or under any other Environmental Law;
(b)Those substances listed in the United States Department of Transportation(DOT)Table
(49 CFR 172.101 J,or by the Environmental Protection Agency(EPA),or any successor agency, as
hazardous substances j40 CFR Part 302J;
(c) Other substances, materials, and wastes that are or become regulated or classified as
hazardous or toxic under federal, state, or local laws or regulations; and
P6401-I 033\937186v3.doc C-1
(d) Any material, waste, or substance that is
(i) a petroleum or refined petroleum product,
(ii) asbestos,
(iii) polychlorinated biphenyl,
(iv) designated as a hazardous substance pursuant to 33 USCS § 1321 or listed
pursuant to 33 USCS § 1317,
(v) a flammable explosive, or
(vi) a radioactive material.
P6401-1033\937186v3.doc C-2
EXHIBIT `�D"
LIST OF ENVIRONMENTAL DOCUMENTS
(If none, Seller must write "None"below; if this Exhibit is left blank and no list is attached, then
Seller shall be deemed to have represented that there are none.)
PG401-1033\937186v3.doc D-1
JOINT FACILITIES AGREEMEIYT BY AND AMONG
THE CITY OF PALM DESERT,
THE COACHELLA VALLEY WATER DISTRICT,
AND
SUMMIT-MONTEREY PROPERTIES, LLC
relating to CVWD CHARGES
City of Palm Desert Section 29 Assessment District(No. 2004-02)
THIS JOINT FACILITIES AGREEMENT (this "Agreement"), dated as of
, 2007, is entered into by and among the CITY OF PALM DESERT, a
municipal corporation (the "City"), the COACHELLA VALLEY WATER
DISTRICT, a county water district (the "CVWD") and Summit-Monterey
Properties, LLC, a California Limited Liability Company(the"Developer").
RECITALS:
A. The City Council of the City has initiated proceedings to establish
an assessment district pursuant to the Municipal Improvement Act of 1913
(California Streets and Highways Code Section 10000, et seq.) (the "Act") to
include territory in the City located generally in Section 29 of the City for the
purpose of financing the construction and/or acquisition of certain public facilities
necessary to serve new development within the assessment district and to provide
financing for CVWD Charges (defined herein). Such assessment district is
proposed to be designated as the "City of Palm Desert Section 29 Assessment
District (No. 2004-02)"or a similar name (the "Assessment District").
B. Developer is the owner of certain real property that is located within
the boundaries of the City and CVWD and within the proposed boundaries of the
Assessment District, shown on Exhibit A, attached hereto and incorporated herein
(the"Developer Property").
C. As a condition of development of the Developer Property, CVWD
requires the payment, pursuant to the rules, regulations, procedures and
requirements of CVWD, as amended from time to time (the "CVWD Rules and
Regulations"), of certain CVWD Charges (defined below).
D. Pursuant to the Act, the City and CVWD are authorized to finance,
by means of the Assessment District, the CVWD Charges for the Developer
Property.
P6401-1033\919599v4.doc 1
E. The purpose of this Agreement is to set forth the understandings of
the Parties with respect to the CVWD Charges.
NOW, THEREFORE, in consideration of the preceding recitals and the
mutual covenants hereinafter contained, the Parties agree as follows:
ARTICLE I
GENERAL PROVISIONS
1.1 Recitals.
The above recitals are true and correct and are hereby incorporated by this
reference.
1.2 Defmitions.
Unless the context clearly otherwise requires, the terms defined in this
Section shall, for all purposes of this Agreement, have the meanings herein
specified.
"Bonds" shall have the meaning ascribed to the term in Section 2.1(a).
"Bond Proceeds" shall mean those net project funds generated by the sale
of the Bonds.
"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.
"CVWD Charges" means water connection fees, water system back-up
facilities charges, sewer connection fees, annexation fees, sewer treatment capacity
charges and atl components thereof of CVWD imposed upon the Developer
Property to pay for the provision of water and sewer services to and the
construction of CVWD water and sewer facilities required to serve the Developer
Property.
"CVWD Facilities Fund" means the fund, account or sub-account
established for the Assessment District into which a portion of the Bond Proceeds
may be deposited in accordance with the Bond Resolution to pay CVWD Charges.
"CVWD Representative" means the CVWD General Manager or any
designee thereof.
"Party" or"Parties"means any one or all of the parties to this Agreement.
P6401-1033\919599v4.doc 2
ARTICLE II
FORMATION OF ASSESSMENT DISTRICT AND ISSUANCE OF BONDS
2.1 Assessment District Formation Proceedings and Issuance of Bonds;
Responsibilitv.
(a) The City Council of the City, in its sole discretion, shall have the
jurisdiction to conduct, and shall be solely responsible for conducting, proceedings
pursuant to the Act for the establishment of the Assessment District. The City
Council, in its sole discretion, shall also have the jurisdiction to conduct, and shall
be solely responsible for conducting, proceedings pursuant to the Act and the
Improvement Bond Act of 1915 (California Streets and Highways Code Section
8500, et seg.) to authorize the City to issue Bonds for the purpose of financing the
construction and/or acquisition of certain public facilities necessary to serve new
development within the Assessment District and to provide financing to pay the
CVWD Charges for the Developer Property. The City Council of the City shall
have the sole discretion to establish the terms and conditions for, and approve the
issuance of the Bonds. Nothing herein shall be deemed to limit the discretion of the
City in regard to the foregoing and the City shall have no liability to CVWD or
Developer if the Assessment District is not formed, or if the Bonds are not issued.
(b) The City hereby agrees that the name "Coachella Valley Water
District" or the initials "CVWD" shall not appear in the name of the Assessment
District or on any property tax billing in connection with the Assessment District.
Further, the City agrees that any property tax billing in connection with the
Assessment District will not indicate that the billing or any portion thereof is for
water and/or sewer facilities and/or CVWD Charges.
(c) CVWD is not directly or indirectly approving, or responsible in any
way whatsoever for the formation of the Assessment District, the authorization for
the levy of assessments within the Assessment District or the issuance of Bonds by
the City. CVWD shall not be responsible in any way whatsoever for the costs of
formation of the Assessment District or any matter whatsoever having to do with
the same. The City acknowledges that it is solely responsible for the formation,
implementation and administration of the Assessment District.
2.2 Responsibilitv for CVWD Charges.
(a) The Parties hereto acknowledge and agree that the final
responsibility for the payrnent of the CVWD Charges on the Developer Property
lies with the Developer.
(b) If the amounts derived from the Bond Proceeds deposited in CVWD
Facilities Fund and reserved for the financing of CVWD Charges, including
investment earnings thereon, if any, are not sufficient to fund the total cost of
CVWD Charges, the Developer shall, within ten (10) days of a written request
from CVWD, deposit with CVWD, such sum as, when added to the Bond Proceeds
P6401-1033\919599v4.doc 3
received by CVWD, shall be satisfactory in CVWD's reasonable discretion, to be
sufficient to pay all of CVWD Charges imposed upon the Developer Property
("Advance"). The Developer shall have no right vested whatsoever, including,
without limitation, the right to receive water and/or sewer service at the Developer
Property until CVWD Charges for the Developer Property have been tendered in
full to CVWD and CVWD has the full, unencumbered use of such funds. The
Advance shall be held by CVWD to finance CVWD Charges for the Developer
Property, provided that CVWD shall first exhaust all available Bond Proceeds prior
to the use of the Advance. The term "available" shall mean that such Bond
proceeds have been distributed to CVWD and CVWD has the absolute right to use
such funds. The Developer hereby authorizes CVWD to use or apply any Advances
provided by the Developer to finance the CVWD Charges for the Developer
Property. The Developer shall not be entitled to interest on any Advance. Any
portion of any Advance remaining after funding all CVWD Charges for the
Developer Property shall be returned to the Developer within ten (10) business
days. If additional Advances are necessary, Developer shall, within ten (10)
business days after written demand therefor, deposit cash with CVWD in an
amount sufficient to fund such additional CVWD Charges ("Additional
Advances"). As any Advances and Additional Advances are transferred to CVWD
to pay CVWD Charges, Developer shall receive a credit in the amount transferred
against the payment of CVWD Charges owing to CVWD for the Developer
Property.
(c) The election by the City to finance or not to finance the CVWD
Charges and/or the fact that sufficient Bond Proceeds may not exist to pay the
CVWD Charges and/or if Bond Proceeds exist to pay the CVWD Charges but such
amounts have not been tendered to CVWD, shall in no way relieve the Developer
from its obligation with respect to paying fees and charges, including, without
limitation, CVWD Charges with respect to the development of the Developer
Property or to otherwise comply with CVWD's Rules and Regulations.
(d) All CVWD Charges for the Developer Property shall be paid in
such amounts and at such times as required by CVWD's Rules and Regulations.
(e) CVWD agrees to utilize or apply funds provided to it pursuant to
this Agreement in accordance with the Act, and as set forth herein, for the CVWD
Charges.
2.3 Bond Proceeds.
As proceeds of the Bonds are transferred to CVWD to fund CVWD
Charges, Developer shall receive a credit, in an amount of such Bond Proceeds so
received, against CVWD Charges required to be paid by the property owner in
connection with the development of the Developer Property. Nothing herein shall
supersede the obligation of any owner of the Developer Property to pay the CVWD
Charges to CVWD when due.
P6401-1033\919599v4.dac 4
2.4 Responsibilitv for Debt Service or Assessments.
CVWD shall have no obligation, responsibility or authority with respect to
the issuance and sale of the Bonds, the proceeds of the Bonds available to finance
the CVWD Charges, the payment of the principal and interest on the Bonds, or for
the levy of assessments within the Assessment District to provide for the payment
of principal and interest thereon. The City shall have the sole authority and
responsibility for all such matters. It is understood and agreed by the Parties that
CVWD will not be considered a participant in the proceedings relative to formation
of the District or the issuance of the Bonds, other than as a party to this Agreement.
The Parties hereto specifically agree that the liabilities of the City with
respect to the Assessment District, including liabilities, if any, of the City pursuant
to the documents providing for the issuance of Bonds, shall not be or become
liabilities of CVWD.
ARTICLE III
TERM AND TERMINATION
3.1 Effective Date.
This Agreement shall become effective and of full force and effect as of the
date set forth in the first paragraph of this Agreement ("Effective Date") provided it
is approved by the City Council of the City and the governing board of CVWD, to
be confirmed by the execution hereof by the authorized representatives of the
Parties hereto.
3.2 Termination.
In the event that the City has not formed the Assessment District and issued
Bonds prior to twelve (12) months after the Effective Date of this Agreement, this
Agreement shall automatically terminate and be of no further force and effect.
ARTICLE IV
ADDITIONAL GENERAL PROVISIONS
4.1 Record keeuine; Insnection of Records.
CVWD hereby agrees to keep and maintain full and accurate records of al1
amounts, and investment earnings, if any, paid to CVWD for the CVWD Charges,
and the City hereby agrees to keep and maintain full and accurate records of all
amounts, and investment earnings, if any, expended from the CVWD Facilities
Fund. Each Party further agees to make such records available to any other Party
hereto, including the Developer, during normal business hours upon reasonable
P6401-1033\919599v4.doc S
prior notice. All such records shall be kept and maintained by the appropriate
Party as provided by applicable law and their respective policies.
4.2 PartialInvalidity.
If any part of this Agreement is held to be illegal or unenforceable by a
court of competent jurisdiction, the remainder of this Agreement shall be given
effect to the fullest extent reasonably possible.
4.3 Notice.
Any notice, payment or instrument required or permitted by this Agreement
must be in writing, and sent to the addresses of each Party set forth below. Notice
will be sufficiently given or delivered to a Party for all purposes as follows: (a)
when personally delivered to the recipient, notice is effective on delivery; (b)
when mailed certified mail, return receipt requested, postage prepaid, notice is
effective on receipt, if a return receipt confirms its delivery; (c) when delivered by
an overnight delivery service such as Federal Express, charges prepaid or charged
to the sender's account, notice is effective on delivery, if delivery is confirmed by
the delivery service; (d) when delivered by facsimile transmission, notice is
effective on receipt, provided that the facsimile machine provides the sender a
notice that indicates that the transmission was successful and that a copy is mailed
by first class mail of the facsimile transmission date. Addresses for purpose of
giving notice are as follows:
City of Palm Desert
City: 73-510 Fred Waring Drive
Palm Desert, CA 92260
Facsimile: (760) 776-6306
Attention: City Manager
Coachella Valley Water District
CVWD: Highway l 11 and Avenue 52
P.O. Box 1058
Coachella Valley, CA 92236
Facsimile : (760) 398-3711
Attention: General Manager-Chief Engineer
Summit-Monterey Properties, LLC
Developer: 2082 Michelson Drive, Suite 100
Irvine, CA 92612
Attention: Steven H. Levenson
P6401-1033\919599v4.doc 6
Each Party can change its address for delivery of notice by delivering
written notice of such change of address to the other parties within ten (10)
calendar days prior to such change.
4.4 Caations.
The captions to Sections used herein are for convenience purposes only and
are not part of this Agreement.
4.5 GoverninQ Law.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of California applicable to contracts made and performed in
such State.
4.6 Entire Agreement.
This Agreement contains the entire agreement between the Parties with
respect to the matters provided for herein and supersedes all prior agreements and
negotiations between the Parties with respect to the subject matter of this
Agreement.
4.7 Amendments.
This Agreement may be amended or modified only in writing executed by
the authorized representative(s) of each of the Parties hereto.
4.8 Waiver.
The failure of any Party hereto to insist on compliance within any of the
terms, covenants or conditions of this Agreement by any other Party hereto, shall
not be deemed a waiver of such terms, covenants or conditions of this Agreement
by such other Party, nor shall any waiver constitute a relinquishment of any other
right or power for all or any other times.
4.9 No Third Partv Beneficiaries.
No person or entity 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 Parties, any rights, remedies, obligations
or liabilities under or by reason of this Agreement.
4.10 Cooneration and Execution of Documents.
The Parties hereto agree to complete and execute any further or additional
documents which may be reasonably necessary to complete or further the terms of
this Agreement.
P6401-1033\9 I 9599v4.doc 7
4.11 Attornevs' 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 judgnent
shall be entered shall be entitled to recover from the losing Party all costs and
expenses of suit, including reasonable attorneys' fees.
4.12 Signatories.
The signatories hereto represent that they have been appropriately
authorized to enter into this Agreement on behalf of the Party for whom they sign.
4.13 Sin�ular and Plural; Gender.
As used herein, the singular of any word includes the plural, and terms in
the masculine gender shall include the feminine.
4.14 Execution in Counterparts.
This Agreement may be executed in counterparts, each of which shall be
deemed an original.
4.15 Venue.
Any legal action or proceeding concerning this Agreement shall be filed
and prosecuted in the appropriate California state court in the County of Riverside,
California. Each Party irrevocably consents to the personal jurisdiction of that
court. The Parties each hereby expressly waive to the maximum legal extent the
benefit of any provision of federal or state law or judicial decision providing for
the filing, removal or change of venue to any other court or jurisdiction, including,
without implied limitation, federal district court, due to any diversity of citizenship
between the Parties.
4.16 Construction.
The language in all parts of this Agreement shall in all cases be construed
as a whole according to its fair meaning and not strictly for or against any Party.
All provisions and any variations thereof shall be deemed to refer to the masculine,
feminine, neuter, singular or plural, as the identification of the person or persons,
firm or firms, corporation or corporations may require. This Agreement is the
product of mutual negotiation and drafting efforts. Accordingly, the rule of
construction that ambiguities in a document are to be construed against the drafter
of that document shall have no application to the interpretation or enforcement of
this Agreement.
P6401-1033\919599v4.doc g
4.17 Time is of the Essence.
Time is of the essence of this Agreement and each and every provision
thereo f.
4.18 No CVWD Liabilitv.
City, CVWD and Developer acknowledge and agree that CVWD shall have
no responsibility or liability to City or Developer for the establishment of the
Assessment District, the levy of assessments; the issuance of Bonds, the financing
of the CVWD Charges, any disclosure made in connection with the offering and
sale of the Bonds or any continuing disclosure made at any time with respect to the
Bonds, or any matter related thereto.
4.19 CVWD Charges.
Nothing herein shall be construed to allow Developer to pay the CVWD
Charges in effect at the effective date of this Agreement. Developer shall pay the
CVWD Charges in effect at the time Developer pays the CVWD Charges or the
Advance.
4.20 Indenendent Contractor.
In performing this Ageement, Developer is an independent contractor and
not the agent of CVWD or City. It is not intended by the Parties to this Agreement
to create a partnership or joint venture among them and this Agreement shall not
otherwise be construed.
4.21 AssiQnment.
The City shall not have the right to assign or otherwise transfer this
Agreement, either voluntarily or by operation of law, in whole or in part, without
the prior written consent of CVWD, which consent may be withheld in CVWD's
sole and absolute discretion. Developer shall not have the right to assign or
otherwise transfer this Agreement, voluntarily or by operation of law, in whole or
in part, without the prior written consent of CVWD and the City, which consent
may be withheld by the City or CVWD, each in its sole and absolute discretion.
4Z2 Indemnification
(a) Developer shall indemnify, defend and hold harmless CVWD and
its officers, directors, employees, agents, officials, representatives, successors and
assigns (each a "CVWD Indemnified Person," and collectively the "CVWD
Indemnified Persons") and each and every one of them from and against all
actions, causes of action, liabilities, costs, damages, claims, losses or expenses of
every type and description (including without limitation attorneys' fees)
(collectively "Costs") to which they may be subjected or put, whether known or
unknown, existing or potential, anticipated or unanticipated, by reason of, or
P6401-1033\919599v4.doc 9
resulting or arising from this Agreement, including without limitation, thc
following: (i) the establishment of the Assessment District; (ii) the levy of
assessments; (iii) the issuance of Bonds; (iv) the financing of all or a portion of the
CVWD Charges from Bond Proceeds; (v) any disclosure made in connection with
the offering and sale of the Bonds or any continuing disclosure made at any time
with respect to the Bonds, or any matter related thereto; (vi) any violation or
alleged violation, breach or alleged breach by Developer of this Agreement; (vii)
any CVWD Indemnified Person's performance of its obligations under this
Agreement; (viii) any violation or alleged violation, breach or alleged breach by
City or CVWD of the Act or any law or regulation now or hereafter enacted with
respect to the subject matter of this Ageement; and (ix) any enforcement by
CVWD of the provisions of this Agreement provided, however, that Developer
shall not be required to indemnify a CVWD Indemnified Person as to Costs
ultimately established by a court of competent jurisdiction to have been caused by
or resulting from gross negligence or willful misconduct of such CVWD
Indemnified Person. The foregoing indemnity includes without limitation, Costs
arising from a legal challenge to the Assessment District and this Agreement.
CVWD may make all decisions with respect to its representation in any legal
proceeding covered by this Section 4.22(a). If Developer fails to do so, CVWD
shall have the right, but not the obligation, to defend the same and charge all of the
direct or incidental costs of such defense, including any fees and costs, to and
recover the same from Developer.
(b) Developer shall indemnify, defend and hold harmless the City and
its officers, directors, employees, agents, officials, representatives, successors and
assigns (each a "City Indemnified Person", and collectively the "City lndemnified
Persons") and each and every one of them from and against all actions, causes of
action, liabilities, costs, damages, claims, losses or expenses of every type and
description (including without limitation attorneys' fees) (collectively "Costs") to
which they may be subjected or put, whether known or unknown, existing or
potential, anticipated or unanticipated, by reason of, or resulting or arising from
this A�-eement, including without limitation, the following: (i) the establishment
of the Assessment District; (ii) the levy of assessments; (iii) the issuance of Bonds;
(iv) the financing of all or a portion of the CVWD Charges from Bond Proceeds;
(v) any disclosure made in connection with the offering and sale of the Bonds or
any continuing disclosure made at any time with respect to the Bonds, or any
matter related thereto; (vi) any violation or alleged violation, breach or alleged
breach by Developer of this Agreement; (vii) any City Indemnified Person's
performance of its obligations under this Agreement; or (viii) any violation or
alleged violation, breach or alleged breach by City or CVWD of the Act or any law
or regulation now or hereafter enacted with respect to the subject matter of this
Agreement; provided, however, that Developer shall not be required to indemnify a
City Indemnified Person as to Costs ultimately established by a court of competent
jurisdiction to have been caused by or resulting from gross negligence or willful
misconduct of such City Indemnified Person. The foregoing indemnity includes
without limitation, Costs arising from a legal challenge to the Assessment District
and this Agreement. The City may make all decisions with respect to its
P6401-I 033\919599v4.doc 1�
representation in any legal proceeding covered by this Section 4.22(b). If
Developer fails to do so, the City shall have the right, but not the obligation, to
defend the same and charge all of the direct or incidental costs of such defense,
including any fees and costs, to and recover the same from Developer.
(c) Developer waives, releases and covenants not to pursue: (i) any and
all claims against the City for reimbursement or contribution, (ii) any and all
claims against the City based on subrogation to any claims, rights or remedies of
CVWD against City and (iii) and any and all similar claims, rights and remedies, in
each case that may result from or arise out of Developer's performance of its
obligations under Section 4.22(a).
(d) The obligations of Developer hereunder this Section 4.22 shall
survive termination of this Agreement.
4.23 Citv and Develoaer Representations.
Notwithstanding any other provision in this Agreement, City and Developer
hereby represent and warrant to CVWD that the following are true and correct:
(a) The CVWD Charges qualify for financing pursuant to the Act,
notwithstanding the fact that CVWD may or may not be able to identify at the
execution of this Agreement or when the CVWD Charges are tendered to CVWD,
the improvements to be constructed with such funds.
(REMAINDER OF PAGE IS BLANK)
P6401-1033\919599v4.doc I1
IN WITNESS WHEREOF, the Parties have executed this Agreement on the day
and year first above written.
CITY OF PALM DESERT
By:
Mayor
ATTEST:
City Clerk
COACHELLA VALLEY WATER DISTRICT
By:
President of the Board of Directors
ATTEST:
Secretary of the Board of Directors
SUMMIT-MONTEREY PROPERTIES, LLC,
a California Limited Liability Company
By:
Its: Manager
P6401-1033\919599v4.doc 12
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