HomeMy WebLinkAbout2003-10-14 Agenda Packet - Board (13) ............. ................ .............. ....
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RESOLUTION NO.
RESOLUTION OF THE BOARD OF DIRECTORS OF THE
TRUCKEE DONNER PUBLIC UTILITY DISTRICT APPROVING
AN AGREEMENT WITH THE TOWN OF TRUCKEE
CONCERNING CERTAIN FACILITIES EXPECTED TO BE
FINANCED BY TRUCKEE DONNER PUBLIC UTILITY
DISTRICT COMMUNITY FACILITIES DISTRICT NO. 03-1
(OLD GREENWOOD)
WHEREAS, the Board of Directors(the"Board of Directors")of the Truckee Donner Public
Utility District(the"Public Utility District")has heretofore commenced proceedings for the
formation of Truckee Donner Public Utility District Community Facilities District No. 03-1 (Old
Greenwood) (the"Community Facilities District")pursuant to the Mello-Roos Community Facilities
Act of 1982, as amended(the"Act"),to finance the acquisition and construction of certain facilities;
and
WHEREAS, the facilities expected to be financed by the Community Facilities District
include street improvements and storm drain improvements(collectively,the "Town Improvements")
which are expected to be transferred to and owned by the Town of Truckee(the"Town"); and
WHEREAS, in order to permit the Community Facilities District to finance the Town
Facilities,the Act requires that the Public Utility District enter into an agreement with respect thereto
with the Town; and
WHEREAS, the proposed form of an agreement between the Public Utility District and the
Town relating to the Town Facilities(the "Agreement")has been prepared and presented to the
Board of Directors;
NOW, THEREFORE,THE BOARD OF DIRECTORS OF TRUCKEE DONNER
PUBLIC UTILITY DISTRICT DOES HEREBY RESOLVE, DETERMINE AND ORDER AS
FOLLOWS:
Section 1. The above recitals are true and correct.
Section 2. The execution and delivery of the Agreement would be beneficial to the
residents of the Public Utility District, and especially to the residents of the Community Facilities
District, in that the Agreement will permit the financing of the Town Facilities without requiring the
Town to form a separate financing district.
Section 3. The form of the Agreement presented to the Board of Directors is hereby
approved; and the President of the Board of Directors and the District Clerk are hereby authorized
and directed, for and in the name of, the Public Utility District, to execute and deliver a copy of the
Agreement to the Town substantially in the form so approved with such changes therein, if any, as
such officers may approve.
I)OCSOC1995050,3\,22925,0009
ADOPTED and APPROVED by the Board of Directors of the Truckee Donner Public
Utility District on this 14th day of October,2003 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
By:
President of the Board of Directors
ATTEST:
District Clerk
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DOCSOCA995050v3\22925.0009
_.. . __ _. __ __ _ __
JOINT COMMUNITY FACILITIES AGREEMENT
BETWEEN THE TRUCKEE-DONNER PUBLIC UTILITY DISTRICT
AND THE TOWN OF TRUCKEE
(Old Greenwood Project)
This Joint Community Facilities Agreement (the "Agreement") dated October_, 2003
is entered into by and between the Truckee-Donner Public Utility District (the "District"), a
California Public Utility District, and the Town of Truckee ("the Town"), a municipality organized
under the laws of the State of California.
RECITALS
WHEREAS, development of the Old Greenwood Project (the "Project") shown in Exhibit
A, attached hereto and incorporated herein by reference, requires the construction of public
facilities and improvements, including roadway and stormwater facilities;
WHEREAS, the Town owns and operates an integrated system of roadways and
stormwater facilities for the provision of road and drainage services within its boundaries;
WHEREAS, the landowners and developers (the "Property Owners") of the Project have
indicated their desire to undertake the design and construction of certain roadway and
stormwater drainage facilities to serve the Project, consisting of new facilities ("Facilities") as
described in Exhibit B, attached hereto and incorporated herein by reference, to accommodate
development within the Project;
WHEREAS, the District has, in conjunction with the Property Owners, determined to
consider financing the acquisition of the Facilities through the formation by the District of a
community facilities district pursuant to the Mello-Roos Community Facilities Act of 1982, as
amended (Government Code Sections 53311, et sea.) (the "Act");
WHEREAS, it is anticipated that, if the community facilities district is formed, it will issue
one or more series of bonds (the "Bonds") secured by special taxes to be levied on non-exempt
property located within the boundaries of the community facilities district, in an amount sufficient
to pay, among other costs, the costs of the Facilities. The provision of the Facilities is
necessitated by the development of the land within the Project and the parties hereto
acknowledge that the residents of the Project will be benefited by the construction and/or
acquisition of the Facilities;
WHEREAS, the parties hereto intend that, if the community facilities district is formed
and issues the Bonds, and if the Facilities are constructed in accordance with the Town's
specifications and standards, the Town will accept the Facilities for operation and maintenance
and the District will pay the acquisition costs to the Property Owners under appropriate
conditions and subject to an acquisition agreement between the District and the Property
Owners;
WHEREAS, Section 53316.2 of the Act provides that a public entity may use a
community facilities district to finance facilities owned by an entity other than the agency that
forms the community facilities district, but only pursuant to a joint community facilities
agreement or joint exercise of powers agreement;
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WHEREAS, Section 53316.2 of the Act authorizes the legislative bodies of two or more
local agencies to enter into a joint community facilities agreement prior to the formation of the
community facilities district if the legislative body of each entity adopts a resolution declaring
that such a joint agreement would be beneficial to residents of that entity;
WHEREAS, for purposes of the Act and this Agreement, the Board of Directors of the
District (the "Board") is the legislative body of the District; and the Town Council of the Town
(the "Council") is the legislative body of the Town;
WHEREAS, the Board and the Council have, prior to the execution of this Agreement,
duly considered the contents of this Agreement and have each determined, by resolution, that
the execution of this Agreement would be beneficial to the residents of the District and the
residents within the service area of the Town;
WHEREAS, by this Agreement, District and Town desire to set forth their intent and their
agreements with respect to the conduct of the proceedings for formation of the Community
Facilities District for the Project, the implementation of the levy and collection of the special tax,
the issuance of bonds and distribution of bond proceeds, and payment to the Property Owners
for the costs of design and construction of the Facilities.
NOW, THEREFORE, in consideration of the mutual promises contained herein, the
parties agree as follows:
1. Recitals. Each of the above recitals is incorporated herein and is true and
correct.
2. Formation and Administration of the Community Facilities District. The
District will have complete responsibility for the formation of the community facilities district, and
if it is formed, the District and the community facilities district will have sole responsibility for the
administration of such district, including the levy of the special taxes that may be authorized
thereby and the issuance and sale of the Bonds related thereto. The Town will not participate in
or be considered a participant in the formation proceedings for the community facilities districts,
nor will it for any purpose be considered an issuer of the Bonds or responsible for their payment.
3. Sale of Bonds and Use of Proceeds. The District and the community facilities
district will be solely responsible for the issuance of the Bonds and the application of Bond
proceeds. The Town acknowledges that amount and timing of payments to the Property
Owners for the acquisition of the Facilities shall be in all respects subject to the sole discretion
and approval of the District and the community facilities district. In no event will an act or a
failure or omission to act, by the District or the community facilities district with respect to the
disbursement or nondisbursement of the Bond proceeds or any other funding for the Facilities
subject the District or the community facilities district to pecuniary liability hereunder.
4. Acceptance of Facilities. The Town agrees to accept title to, and provide
operations and maintenance for, the Facilities, assuming that all other requirements of the
District and Town are met including the Town's Road Acceptance Policy and subject to approval
and inspection of the Facilities by the Town. The Town's Manager is authorized to supplement
or otherwise revise the Facilities by an addendum executed by him or her At District's request,
the Town will provide to District any information in Town's possession required to complete the
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portion of the public facilities report regarding the Facilities (as specified in Section 53321.5 of
the Act).
5. Maintenance and Operation. Following acceptance of the Facilities by the
Town, the Town shall be solely responsible for the maintenance and operation thereof.
6. Acquisition Agreement. The District may enter into an acquisition agreement
(the "Acquisition Agreement") with the Property Owners with respect to the Facilities that the
District elects to fund that will provide for payment from the bond proceeds provided that the
Facilities are designed and constructed to the satisfaction of the Town and the District.
Payment to the Property Owners for the Facilities under the Acquisition Agreement (if executed)
will be from Bond proceeds only and not from any other fund of District or the Town. The
District and the Town agree that the Acquisition Agreement (if executed) will require that the
Facilities shall be constructed pursuant to all applicable District and Town requirements and
statutes and in compliance with the applicable requirements of the Act. Nothing in this
Agreement or any Acquisition Agreement shall relieve the Property Owners of the obligation to
pay fees imposed by the Town, nor shall anything in this Agreement or any Acquisition
Agreement prevent the Town from agreeing separately to provide credits against such fees to
Property Owners for eligible Facilities constructed.
7. Distribution of Bond Proceeds.
a. Pursuant to each bond indenture, fiscal agent agreement, or other
document providing for the issuance of the Bonds ("Indenture"), District or the community
facilities district shall establish a separate account with the bond trustee or fiscal agent
designated in the Indenture, into which the proceeds of the Bonds to be used for the Facilities,
and other public improvements to be funded by proceeds from the sale of Bonds, shall be
deposited (the "Acquisition and Construction Fund").
b. The Town agrees that it shall review and approve all costs included in the
Property Owners' request to the District for payment to the Property Owners from an Acquisition
and Construction Fund for any of the Facilities. Town agrees to provide assistance to the
District in determining compliance by the Property Owners with the requirements of the Town.
8. Limited Obliqations. The Town's obligations hereunder shall be limited to the
obligations assumed by it with respect to the acceptance of the Facilities for operations and
maintenance. The Town shall have no obligation or responsibility whatsoever with respect to
the issuance and sale of the Bonds, for the payment of principal and interest thereon, or for the
levy of the special taxes required to provide debt service. The District shall have the sole
responsibility in such matters.
9. No Separate Entity. The parties do not intend to form a separate joint exercise
of powers authority by this Agreement; instead, the parties intend that the Board or the General
Manager of the District or his or her designee act on behalf of the District on all matters for
which the District is responsible under the Act and this Agreement, and that the Council or the
Manager of the Town or his or her designee, act on behalf of the Town in all matters for which it
is responsible under this Agreement.
10. Indemnification.
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a. By District. District shall, to the full extent permitted by law, indemnify,
defend and hold the Town, and its officers, employees, agents and contractors harmless from
and against any and all liabilities, losses, claims, damages, and expenses in connection
therewith, including attorneys' fees and expenses, arising out of or as a result of the
proceedings for the formation of any community facilities district, the levy and collection of the
special taxes, and the insurance, sale and administration of the Bonds and Bond proceeds.
b. By the Town. The Town shall, to the full extent permitted by law,
indemnify, defend and hold District, and its officers, employees, agents and contractors
harmless from and against any and all liabilities, obligations, losses, claims, damages and
expenses in connection therewith, including attorneys' fees and expenses, arising out of or as a
result of the design or the acceptance of the Facilities by the Town for operation and
maintenance.
11. Termination, This Agreement shall terminate upon the earliest occurrence of
the following events: (a) the dissolution pursuant to Section 53338.5 of the Act of the community
facilities district established to finance the Facilities; or (b) the written agreement of District and
the Town to terminate this Agreement.
12. Notice. Any notice, payment or instrument required or permitted by this
Agreement to any party shall be deemed to have been received when personally delivered to
any party or seventy-two (72) hours following mailing the same, first class, postage prepaid,
addressed as follows:
District: Truckee-Donner PUD
11570 Donner Pass Road
P.O. Box 309
Truckee, California 96160
Attention: General Manager
Town: Town of Truckee
10183 Truckee Airport Road
Truckee, CA 96161
Attention: Town Manager
13. Captions. Captions to sections of this Agreement are for convenience purposes
only, and are not part of this Agreement.
14. Severability. If any portion of this Agreement is declared by a court of
competent jurisdiction to be invalid or unenforceable, such portion shall be deemed severed
from this Agreement and the remaining parts shall remain in full effect as though such invalid or
unenforceable provision had not been a part of this Agreement.
15. Successors and Assigns: This Agreement shall be binding upon and inure to
the benefit of the successors and assigns of the parties hereto.
16. Entire Agreement. This Agreement contains the entire agreement between the
parties with respect to the matters contained herein and may be amended only by subsequent
written agreement signed by both parties.
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17. Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and the
year first written above.
THE TOWN OF TRUCKEE,
a California municipality
By: Stephen L. Wright
Its: Town Manager
Attest:
TRUCKEE-DONNER PUBLIC UTILITIES
DISTRICT, a California Public Utility District
By:
President, Board of Directors
Attest:
Approved as to form: Approved as to form:
Counsel District Counsel
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_ __. ,..,.._..... . ....._ . . .. _ _ _ _. ......_ ___.
Agenda Item #4,5,6,7,8 & 9
NI-M MUNH
M � �7o
To: Board of Directors
From: Stephen Hollabaugh
Date: October 10, 2003
Subject: Truckee Donner Public Utility District
Community Facilities District No. 03-1 (Old Greenwood)
Why this matter is before the Board:
We have been methodically moving toward formation of Community Facilities Districts for the Old
Greenwood and Gray's Crossing developments. We are now at the point in the process where we
need the Board to formally consider a series of actions implementing the CFDs
The Board is being asked to consider forming the Community Facilities District No. 03-1 (Old
Greenwood). A number of items will be discussed in order to form the Community Facilities District
No. 03-1, consisting of the Resolutions and Ordinance in agenda items #4 through #9.
History:
East West Partners asked the District to consider forming a CFD to help finance infrastructure at Old
Greenwood and Grays Crossing developments. The board approved a Community Facilities District
Study Funding and Reimbursement Agreement with East West Partners. Under the terms of that
Agreement, East West Partners agreed to pay the cost of a feasibility study, and to deposit an initial
sum of$20,000.
On April 16, 2003, the Board accepted a proposal from Fieldman, Rolapp & Associates to conduct a
review of forming a Community Facilities District (Phase 1). This study was presented to the Board
on June 18, 2003.
On August 6, 2003, the Board approved Fieldman, Rolapp &Associates to continue with Phase 2 and
Phase 3 which included the following:
1. Establish Financing Objectives
2. Develop the Pre-community Facilities District Formation Timetable
3. Monitor the Community Facilities District Formation and Transaction Process
4. Review the Official Statement
5. Procure and Coordinate Additional Service Providers
6. Provide Financial Advise to the District Relating to Financing Documents
7. Compute Sizing and Design Structure of Debt Issue
8. Plan and Schedule Investor Briefings
9. Conduct Credit Enhancement Evaluation
10. Conduct Market Analysis and Evaluate Timing of Market Entry
11. Recommend Award of Debt Issuance
12. Provide Pre-Closing and Closing Activities
These activities will be covered from Bond proceeds.
Also on August 6, 2003 the Board authorized among other things, the Resolution of Intention
to Establish Truckee Donner Public Utility District Community Facilities District No. 03-1 (Old
Greenwood) and to Authorize the Levy of a Special Tax Within Said Community Facilities District.
New information:
We now have a series of documents prepared by John Murphy (Stradling Yocca Carlson & Rauth)
and Larry Rolapp (Fieldman, Rolapp & Associates) that are part of the process the CFDs formation.
Those documents are attached for your review.
The documents are numerous. The Old Greenwood CFD has its own set of documents. The other
reason there are so many documents is the formation process is specific and simply requires a series
of steps. The documents have been prepared by experts in the field. They have been used in the
formation of other CFDs throughout the state, and have stood the test of time.
Recommendation:
Agenda items 4 thru 9 each have their specific recommendations and will be addressed with each
item.
4. Consideration of a Resolution of the Board of Directors of the Truckee Donner Public Utility District Approving
an Agreement with the Town of Truckee Concerning Certain Facilities Expected to be Financed by Truckee
Donner Public Utility District Community Facilities District No. 03-1 (Old Greenwood)
5. Consideration of a Resolution of the Board of Directors of the Truckee Donner Public Utility District Approving
an Acquisition and Disclosure Agreement in Connection with Truckee Donner Public Utility District Community
Facilities District No. 03-1 (Old Greenwood)
6. A public hearing will be held for the purpose of receiving written and or oral comments from members of the
public regarding the Board's intent to form Truckee Donner Public Utility District Community Facilities District
No. 03-1, Old Greenwood,to levy special taxes therein and to issue bonded indebtedness.
7. Consideration of the following documents relating to the Community Facilities District No. 03-1 (Old
Greenwood)
A). Resolution of the Board of Directors of the Truckee Donner Public Utility District Establishing Truckee
Donner Public Utility District Community Facilities District No. 03-1 (Old Greenwood), Authorizing the Levy of a
Special Tax therein and Establishing an Appropriations Limit
B). Resolution of the Board of Directors of the Truckee Donner Public Utility District, Acting as the Legislative
Body of Truckee Donner Public Utility District Community Facilities District No. 03-1 (Old Greenwood),
Determining it Necessary to Incur Bonded Indebtedness Within Said Community Facilities District
C). Resolution of the Board of Directors of the Truckee Donner Public Utility District, Acting as the Legislative
Body of Truckee Donner Public Utility District Community Facilities District No. 03-1 (Old Greenwood), Calling a
Special Election
8. Consideration of a Resolution of the Board of Directors of the Truckee Donner Public Utility District, Acting as
the Legislative Body of Truckee Donner Public Utility District Community Facilities District No. 03-1 (Old
Greenwood), Declaring the Results of a Special Election and Approving Certain Related Actions
9. Consideration of an Ordinance of the Board of Directors of the Truckee Donner Public Utility District, Acting
as the Legislative Body of Truckee Donner Public Utility District Community Facilities District No. 03-1 (Old
Greenwood), Authorizing the Levy of a Special Tax Within Said Community Facilities District
RESOLUTION NO.
RESOLUTION OF THE BOARD OF DIRECTORS OF THE
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
APPROVING AN ACQUISITION AND DISCLOSURE
AGREEMENT IN CONNECTION WITH TRUCKEE DONNER
PUBLIC UTILITY DISTRICT COMMUNITY FACILITIES
DISTRICT NO.03-1 (OLD GREENWOOD)
WHEREAS, the Board of Directors(the"Board of Directors")of the Truckee Donner Public
Utility District (the "Public Utility District') has heretofore commenced proceedings for the
formation of Truckee Donner Public Utility District Community Facilities District No. 03-1 (Old
Greenwood) (the"Community Facilities District')pursuant to the Mello-Roos Community Facilities
Act of 1982, as amended(the "Act'), to finance the acquisition and construction of certain facilities;
and
WHEREAS, some of the facilities expected to be financed by the Community Facilities
District have been, or are expected to be, constructed by or on behalf of Old Greenwood, LLC (the
"Developer") and to be acquired from the Developer if and to the extent bond proceeds are available
for such purpose; and
WHEREAS, in order to provide the terms on which such facilities will be required it is
appropriate that the Public Utility District enter into an agreement with respect thereto with the
Developer; and
WHEREAS, the proposed form of such an agreement between the Public Utility District and
the Developer(the "Acquisition and Disclosure Agreement')has been prepared and presented to the
Board of Directors;
NOW, THEREFORE, THE BOARD OF DIRECTORS OF TRUCKEE DONNER
PUBLIC UTILITY DISTRICT DOES HEREBY RESOLVE, DETERMINE AND ORDER AS
FOLLOWS:
Section 1. The above recitals are true and correct.
Section 2. The form of the Acquisition and Disclosure Agreement presented to the
Board of Directors is hereby approved; and the President of the Board of Directors and the District
Clerk are hereby authorized and directed, for and in the name of, the Public Utility District, to
execute and deliver a copy of the Acquisition and Disclosure Agreement to the Developer
substantially in the form so approved with such changes therein,if any, as such officers may approve.
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DOCSOCA997641 v2\22925.0009
ADOPTED and APPROVED by the Board of Directors of the Truckee Donner Public
Utility District on this 14th day of October,2003 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
By:
President of the Board of Directors
ATTEST:
District Clerk
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DOCS0099764 Iv2\22925.0009
ACQUISITION AND DISCLOSURE AGREEMENT
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
COMMUNITY FACILITIES DISTRICT NO. 03-1
(OLD GREENWOOD)
Recitals
A. The parties to this Agreement are the Truckee Donner Public Utility District, a
political subdivision of the State of California (the "PUD"), on behalf of itself and Truckee Donner
Public Utility District Community Facilities District No. 03-1 (Old Greenwood), which is expected to
be formed by the PUD (the "CFD"), and Old Greenwood, LLC,a Delaware limited liability company
(the"Developer").
B. The effective date of this Agreement shall be 2003.
C. The PUD expects to form the CFD pursuant to the provisions of the Mello-Roos
Community Facilities Act of 1982, as amended (the "Act"); and the Board of Directors of the PUD
will serve as the legislative body of the CFD if it is formed. The CFD is expected to be authorized to
issue bonds (the "Bonds") secured by a special tax (the "Special Tax") to be levied on property
within its boundaries (the "Subject Property") in order to finance the acquisition or construction of
certain facilities.
D. The CFD is expected to be authorized to utilize a portion of the proceeds derived
from the sale of the Bonds, if and to the extent such proceeds are available for such purpose, to
acquire on behalf of the PUD and the Town of Truckee (the "Town") certain public improvements to
be constructed either by, or under contract to, the Developer(the "Facilities").
E. Subject to the completion of proceedings pursuant to the Act for the formation of the
CFD and the authorization of the Special Tax, the Subject Property will be subject to a continuing
lien to secure payment of the Special Tax by virtue of the recordation of a notice of special tax lien in
the official records of the County Recorder of the County of Nevada,as provided by the Act.
F. The Facilities, the portions thereof that may be separately acquired (each, a
"Segment") and the respective estimated acquisition prices related thereto (each, an "Acquisition
Price") are identified in Exhibit A, attached hereto and by this reference incorporated herein. The
Facilities that may be acquired on behalf of the PUD (the "PUD Facilities") are identified as PUD
Facilities in Exhibit A, and the Facilities that may be acquired on behalf of the Town (the "Town
Facilities") are identified as Town Facilities in Exhibit A. The parties expressly acknowledge and
agree that Exhibit A may be subject to revision after the effective date of this Agreement, and the
Acquisition Prices may be adjusted to reflect bids received, changes in work, etc., upon the written
approval of the General Manager of the PUD, the Assistant General Manager of the PUD or the
designee of the General Manager(each,a "PUD Authorized Representative")and the Developer.
G. The Developer desires to assure the PUD that the Special Tax obligation will be fully
disclosed to future purchasers from the Developer of parcels of land comprising the Subject Property.
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DOCSOCA988372v5'22925.0009
Agreement
In consideration for the mutual undertakings of the parties stated herein, the parties agree as
follows:
1. Recitals. The foregoing recitals are true and correct, and the parties expressly so
acknowledge. Said recitals are incorporated herein by reference.
2. Acquisition of Facilities. Subject to the completion of proceedings pursuant to the
Act for the formation of the CFD, the authorization of the Special Tax and the issuance of the Bonds,
and subject also to the availability of Bond proceeds in amounts sufficient for the following
purposes, and subject also to the agreement of the Town with respect to the Town Facilities, the
Developer hereby agrees to sell to the PUD or the Town, as the case may be (the "Applicable
Governmental Entity"); and the CFD hereby agrees to pay to the Developer the applicable
Acquisition Price for each such Facility (subject to adjustments thereof as described in Recital F and
elsewhere in this Agreement), subject to the terms and conditions hereof. Title (where applicable) to
each Segment purchased pursuant hereto shall be conveyed by appropriate instrument by the
Developer to the Applicable Governmental Entity as of the date the Applicable Governmental Entity
accepts such Segment. The Developer expressly acknowledges that the conditional obligation of the
CFD to pay the Acquisition Price for each of the Facilities is strictly limited to a portion of the
proceeds of sale of the Bonds and any available investment earnings thereon and to no other source
of funds. The parties acknowledge and agree that the total of the Acquisition Prices for all of the
Facilities purchased will not exceed the sum of the net Bond proceeds (if any) remaining after paying
all costs of issuing the Bonds and funding a reserve fund and any other funds and accounts required
to be funded with Bond proceeds and the earnings (if any) derived from the investment thereof, but
that the Acquisition Price of any Facility may (with the approval of the PUD Authorized
Representative)be increased if and to the extent that the amount actually paid for one or more other
Facilities is less than the estimated Acquisition Price of such Facility.
3. Payment of Acquisition Price. (a)PUD Facilities. In order to be paid for a
completed Segment of a PUD Facility, the Developer shall deliver to the PUD Authorized
Representative (a) a request for such payment in the form attached as Exhibit B (a "Payment
Request"), together with all attachments and exhibits to be included therewith and, where applicable
as the PUD may deem appropriate under the circumstances, (i) a copy of the recorded documents
conveying to the PUD title, acceptable to the PUD ("Acceptable Title"), to the real property on, in or
over which such Segment is located, (it) a copy of the recorded Notice of Completion of such
Segment filed in accordance with Section 3093 of the California Civil Code (if applicable), and
(iii) an assignment of the warranties and guaranties for such Segment, as described in
Section 6(d)(ii), in form reasonably acceptable to the PUD.
Until the acceptance by the PUD of the entire Facility of which the Segment being acquired
is a part, the amount to be paid with respect to such Segment shall not exceed 90% of the Acquisition
Price. The remaining 10% of the Acquisition Price shall be payable to the Developer within 35 days
after the PUD's acceptance of the final Segment of the subject Facility.
Upon receipt of a completed Payment Request (and all documentation required by this
Agreement to be submitted therewith) for a Segment of a PUD Facility, the PUD Authorized
Representative shall conduct a review in order to confirm that such Segment was constructed in
accordance with the PUD-approved plans (the "Plans") therefor and to verify and approve the Actual
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DOCS009883720A22925.0009
Cost(as defined below) of such Segment specified in such Payment Request. The Developer agrees
to cooperate with the PUD Authorized Representative in conducting each such review and to provide
the PUD Authorized Representative with such additional information and documentation as is
reasonably necessary for the PUD Authorized Representative to conclude each such review. The
PUD Authorized Representative shall complete such review as soon as reasonably practicable after
receiving all necessary information and documentation and shall take action with respect thereto
within [60] days after his or her receipt of such information and documentation. If the PUD
Authorized Representative determines that the amount specified as the Actual Cost in such Payment
Request as initially submitted exceeds the Developer's Actual Cost of constructing such Segment,the
Developer shall resubmit such Payment Request,with the amount specified therein modified so as to
take into account such determination of the Actual Cost by the PUD Authorized Representative.
Upon confirmation that such Segment has been constructed in accordance with the Plans therefor,
and verification and approval of the Actual Cost of such Segment, the PUD Authorized
Representative shall sign the Payment Request and promptly forward the same to the Board of
Directors for acceptance of the Segment. Following Board of Directors approval, the PUD
Authorized Representative shall, as soon as possible, forward the Payment Request to the entity
which holds the Bond proceeds that are available for such purpose(the"Bond Trustee").
As used in this Agreement, the term "Actual Cost" means, with respect to a Segment, (in
each case, to the extent not previously paid to the Developer) an amount equal to the sum of(a)the
Developer's actual cost of constructing such Segment,including labor, material and equipment costs,
(b)the Developer's actual cost of preparing the Plans for such Segment, (c)the Developer's actual,
cost of environmental evaluations required specifically for such Segment, (d)the amount of the fees
actually paid by the Developer to governmental agencies in order to obtain permits, licenses or other
necessary governmental approvals for such Segment, (e) a construction management fee equal to
four percent (4%) of the amount described in clause (a), (f) a fee equal to thirteen percent (13%) of
the amount described in clause(a) to compensate for the costs of professional services directly
related to the construction of such Segment, including engineering, inspection, construction staking,
materials testing and similar professional services, and (g) the Developer's actual cost of any title
insurance required hereby for such Segment, all as specified in a Payment Request that has been
reviewed and approved by the PUD Authorized Representative. Notwithstanding the foregoing,
"Actual Cost" shall not include either (i) internal administrative costs incurred by the Developer or
(ii) costs incurred by the Developer in connection with the preparation of a tentative or final tract
map.
(b) Town Facilities. In order to be paid for a completed Segment of a Town Facility, the
Developer shall deliver to the PUD Authorized Representative a Town Facility Payment Request
approved by the Town Manager of the Town or his designee. The PUD Authorized Representative
shall promptly forward the Town Facility Payment Request to the Bond Trustee
Until the acceptance by the Town of the entire Facility of which the Segment being acquired
is a part, the amount to be paid with respect to such Segment shall not exceed 90%of the Acquisition
Price. The remaining 10% of the Acquisition Price shall be payable to the Developer within 35 days
after the Town's acceptance of the final Segment of the subject Facility.
4. Developer's Duty to Construct. The Developer shall construct each Facility, or
cause each Facility to be constructed, in accordance with the Plans for such Facility approved by the
Applicable Governmental Entity. The Developer shall perform all of its obligations hereunder, and
shall conduct all operations with respect to the construction of the Facilities, in a good, workmanlike
3
DOCSOCV988372v5A22925.0009
and commercially reasonable manner,with the standard of diligence and care normally employed by
duly qualified persons utilizing their best efforts in the performance of comparable work and in
accordance with generally accepted practices appropriate to the activities undertaken. The Developer
shall not be relieved of its obligation to construct each Segment, and convey such Segment to the
Applicable Governmental Entity in accordance with the terms hereof, even if the Acquisition Price
for such Segment is less than the Actual Cost of such Segment, or is in excess of proceeds of the
Bonds available to pay such Acquisition Price, if any.
5. Public Works Requirements. In order to insure that each Facility whose
construction has not been completed, as determined by the Board of Directors of the PUD (based on
the advice of the Town in the case of the Town Facilities),before the formation of the CFD will be
constructed as if it had been constructed under the direction and supervision, or under the authority,
of the Applicable Governmental Entity, so that it may be acquired pursuant to California Government
Code Section 53313.5, the Developer shall comply with all of the legal requirements that would
apply to the Applicable Governmental Entity if the Facility were being constructed by such
Applicable Governmental Entity.
In addition, the Developer shall provide for its own construction financing, construction
contracting and contract administration. In providing for the construction and installation of the
Facilities,the Developer and its contractor(s) shall be obligated to meet all requirements customarily
imposed by the Applicable Governmental Entity and by any other public agency or public utility
company having jurisdiction upon subdividers, developers and contractors in such circumstances.
Without limiting the generality of the foregoing, the Developer shall be obligated as follows:
i. The Developer and/or its contractor(s) shall post completion bonds, labor and
materials bonds, and one-year maintenance bonds (such one-year period to commence upon
acceptance by the Applicable Governmental Entity of the final Segment comprising a
Facility) in the same manner and in the same amount as is required by the Applicable
Governmental Entity and by any other public agency or public utility company having
jurisdiction as would be required in the absence of the District financing program.
ii. The Developer warrants, and by its offer to transfer ownership of the
Facilities to the Applicable Governmental Entity, shall warrant that the Facilities will be free
from defects in workmanship or materials and will be suitable for their intended use. Said
warranty shall extend for a period of one (1) year after the issuance by the PUD of a notice of
acceptance of the final Segment comprising a Facility. As an alternative to said sole
warranty from the Developer, the Developer shall require each contractor, subcontractor,
supplier, or materialman in connection with the construction and installation of the Facilities
to name the Applicable Governmental Entity as a beneficiary of each warranty or guarantee
given by such party to the Developer in connection with such party's work, supplies or
materials.
iii. In addition to the warranties and obligations of the Developer set forth in the
foregoing subparagraph(ii), the Developer shall remain and be responsible to the Applicable
Governmental Entity for any defects in work, supplies, or materials in connection with the
Facilities occurring or appearing within one (1) year of issuance by the Applicable
Governmental Entity of its notice of acceptance of said final Segment comprising a Facility.
The Applicable Governmental Entity shall give the Developer written notice to replace,
repair or correct any defect forthwith upon discovery thereof, and the Developer shall
4
DOCSOCA988372vS22925 0009
proceed forthwith and with all due diligence to effectuate replacement,repair or correction of
such defect.
The requirements of subparagraph (i) above pertaining to maintenance bonds and the
provisions of subparagraphs (ii) and (iii) above shall be applicable to all Facilities, not merely those
whose construction had not been completed prior to the formation of the CFD.
6. Representations, Warranties and Covenants of the Developer. The Developer
makes the following representations, warranties and covenants for the benefit of the PUD, the CFD
and the Town:
(a) Organization. The Developer represents and warrants that the Developer is a limited
liability company, duly organized and validly existing under the laws of the State of Delaware, is in
compliance with the laws of the State of California, and has the power and authority to own its
properties and assets and to carry on its business as now being conducted and as now contemplated.
(b) Authority. The Developer represents and warrants that it has the power and authority
to enter into this Agreement, and it has taken all action necessary to cause this Agreement to be
executed and delivered, and this Agreement has been duly and validly executed and delivered on
behalf of the Developer.
(c) Binding Obligation. The Developer represents and warrants that this Agreement is a
valid and binding obligation of the Developer and is enforceable against the Developer in accordance
with its terms.
(d) Completion of Facilities. The Developer covenants that it will use its reasonable and
diligent efforts to do all things which may be lawfully required of it in order to cause the Facilities to
be completed in accordance with this Agreement.
(e) Compliance with Laws. The Developer covenants that it will not commit, suffer or
permit any act to be done in, upon or to the property on which the Facilities are to be constructed or
the Facilities in violation of any law, ordinance, rule, regulation or order of any governmental
authority or any covenant, condition or restriction now or hereafter affecting such property or the
Facilities.
(f) Requests for Payment. The Developer represents and warrants that (i)it will not
request payment from the District for the acquisition of any improvements that are not part of the
Facilities, (ii) each facility described in Section 5 for which payment is requested will have been
constructed as if it had been constructed under the direction and supervision, or under the authority,
of the Applicable Governmental Entity and (iii)the Developer will diligently follow all procedures
set forth in this Agreement with respect to the Payment Requests.
(g) Financial Records and Construction Documents. Until the final acceptance of the
Facilities, the Developer covenants to maintain proper books of record and account for the Facilities
and all costs related thereto. The Developer covenants that such accounting books will be
maintained in accordance with generally accepted accounting principles, and will be available for
inspection by the District and the Applicable Governmental Entity, and their respective agents, at any
reasonable time during regular business hours on reasonable notice. In addition, the Developer
agrees to maintain and to make available for inspection by the District and the Applicable
5
DOCSOCA988372v5S22925.0009
Governmental Entity, and their respective agents, at any reasonable time during regular business
hours on reasonable notice all documents relating to the construction of the Facilities including, but
not limited to, the Plans, specifications, easements, rights-of-way, licenses, permits, surveys,
estimates, schedules, contracts for the construction of any portion of the Facilities, invoices and
receipts for payments relating to the Facilities, insurance policies, payroll records, and any other
documents required to be maintained by any applicable provision of law.
(h) Hazardous Materials. The Developer represents and warrants that, to the best
knowledge of the Project Manager for the Developer's Old Greenwood development, there is not
present upon the Subject Property, or any portion thereof, or upon any portion of the Facilities
currently existing, or any portion thereof, any Hazardous Materials (as defined below). The
Developer represents and warrants that all operations or activities upon, or use or occupancy of the
Subject Property and the Facilities, and each portion thereof, by the Developer, or to the best
knowledge of the Project Manager for the Developer's Old Greenwood development, by any prior
tenant, occupant or owner of the Subject Property or any portion thereof, is in all material respects in
compliance with all state, federal and local laws, ordinances, regulations, rules, decisions or policy
statements governing or in any way relating to the generation, handling, manufacturing, treatment,
storage, use, transportation, spillage, leakage, dumping, discharge or disposal (whether accidental or
intentional) of any toxic or hazardous substances, materials, or wastes, including, but not limited to,
Hazardous Materials. The Developer represents and warrants that there is no proceeding or inquiry
by any governmental authority body or agency with respect to the presence of Hazardous Materials
on the Subject Property or the Facilities or the migration thereof from or to other property. The
Developer represents and warrants that neither the Developer, nor any subcontractor, agent or
employee thereof will use, generate, manufacture,procure, store, release, discharge or dispose of any
Hazardous Material on, under or about the Subject Property or the Facilities or transport any
Hazardous Material to or from the Subject Property or the Facilities in violation of any federal, state
or local law, ordinance, regulation, rule, decision or policy statement regulating Hazardous Material.
"Hazardous Material" means any hazardous or toxic substance, material or waste which is or
becomes regulated by any local governmental authority, the State or the United States Government
and specifically includes, without limitation, any material or substance which is (a) designated as a
"hazardous substance"pursuant to Section 311 of the Federal Water Pollution Control Act, 33 U.S.C.
Sections 1251 et seq. (33 U.S.C. Section 1321), (b)defined as a "hazardous waste" pursuant to
Section 1004 of the Federal Resource Conservation and Recovery Act, 42 U.S.C. Sections 6901 et
seq. (42 U.S.C. Section 6903), (c) defined as a "hazardous substance"pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. Sections 9601 et seq., (d)petroleum, or(e) asbestos.
(i) Permits. The Developer represents and warrants that, all governmental or other
permits required to proceed with the acquisition, construction and installation of the Facilities have
been or will be obtained in a timely manner and all fees relating thereto have been or will be paid in a
timely manner. The Developer represents and warrants that there is no material impediment to the
Developer's proceeding with and completing the acquisition, construction and installation of the
Facilities or to the development of the Subject Property as contemplated by the Developer.
7. Indemnification. The Developer agrees to protect, indemnify, defend and hold the
CFD and the PUD, and their respective officers, employees and agents, and each of them, harmless
from and against any and all claims, losses, expenses, suits, actions, decrees, judgments, awards,
attorney's fees, and court costs which the CFD or the PUD, or their respective officers, employees
and agents, or any combination thereof, may suffer or which may be sought against or recovered or
6
➢OCS00988372v5122925.0009
obtained from the CFD or the PUD, or their respective officers, employees or agents, or any
combination, thereof as a result of or by reason of or arising out of or in consequence of (a) the
acquisition, construction, installation or financing of the Facilities, (b) the untruth or inaccuracy or
any representation or warranty made by the Developer in this Acquisition Agreement, (c) any act or
omission,negligent or otherwise,of the Developer or any of its subcontractors, agents or anyone who
is directly employed by or acting in connection with the Developer or any of its subcontractors, or
agents, in connection with the Facilities, or (d) this Agreement. If the Developer fails to do so, the
CFD and the PUD shall each 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 attorneys fees or court costs, to and
recover the same from the Developer.
No indemnification is required to be paid by the Developer for any claim, loss or expense
arising from the willful misconduct or sole negligence of the CFD or the PUD, or their respective
officers, employees or agents.
The provisions of this Section shall survive the termination of this Acquisition Agreement.
8. Disclosures to Purchasers of Subject Property. The Developer covenants and
agrees that from and after the date hereof it will provide all forms of disclosure of the Special Tax as
required by existing law and by any future laws. In particular, the Developer covenants and agrees
from and after the date hereof to provide the Special Tax disclosure notice required by
Section 53341.5 of the Act and to retain in its files copies of all notices signed by purchasers in
accordance with Section 53341.5. The PUD shall have the right to inspect and obtain copies of all of
the Developer's records regarding Special Tax disclosure. The Developer further agrees to include in
its contracts with purchasers of any of the Subject Property (other than individuals purchasing
custom lots or fractional interests in residences) entered into from and after the date hereof a
requirement that such purchasers (i)provide all forms of disclosure of the Special Tax required by
law, (ii) retain signed copies of the Section 53341.5 notice following the sale of any parcel
comprising part of the Subject Property to another, and (in)provide the PUD on request an
opportunity to review and obtain copies of all records relating to disclosure of the Special Tax. Such
contractual provision shall further provide that the PUD and the CFD are third party beneficiaries of
such disclosure requirements and that the purchaser of any of the Subject Property will indemnify the
PUD, the CFD and their respective officers and employees for any failure of such purchaser to
disclose the Special Tax as required by law.
9. Developer Responsibilities. The Developer acknowledges that it is represented by
its own separate legal counsel in regard to the proceedings for the formation of the CFD, the levy of
the Special Tax, the authorization and issuance of the Bonds, the negotiation of this agreement, and
the process of constructing and installing the Facilities. The Developer accepts responsibility for and
shall be responsible for identification of and for compliance with all applicable laws pertaining to
constructing and installing the Facilities and the contract or contracts pertaining thereto,including,in
the case of each Facility described in Section 5, the laws that would apply to the Applicable
Governmental Entity if it were constructing such Facility itself. Notwithstanding the requirements of
this Agreement, the PUD makes no representation as to the applicability or inapplicability of any
laws regarding contracts, including contracts related to the construction and installation of the
Facilities, and especially the matters of competitive bidding and the payment of prevailing wages.
The PUD may, in its sole discretion, supply guidance to the Developer with respect to laws
governing the construction of an improvement by the PUD if requested to do by the Developer; and
the PUD shall take no action against the Developer by reason of any act, or failure to act, of the
7
DOCSOCA988372v5\22925.0009
.... ....... ........................
Developer that is in strict conformance with any written guidance provided to the Developer by the
PUD Authorized Representative. Whether or not the PUD shall have provided any such guidance to
the Developer, the Developer will neither seek to hold nor hold the PUD liable for any consequences
of any failure by the Developer to correctly determine applicability of any such requirements to any
contract it enters into, irrespective of whether the PUD knew or should have known about
applicability of any such requirement. This paragraph shall apply with respect to any enforcement
action, whether public or private, and whether brought by a public enforcement agency or by private
civil litigation, against the Developer or the PUD or both with respect to the matters addressed by
this paragraph.
10. Special Tax Levy. In order to assure the highest possible level of accuracy in the
annual levy of the Special Tax, the PUD will use reasonable efforts to provide the Developer with a
copy of the proposed annual levy by July 1 of each year so that the Developer may review and
comment on it prior to its submittal to Nevada County, provided that the District's failure to do so
will not be a breach of this Agreement and will not prevent the District from filing the proposed
annual levy with Nevada County at such time as it deems necessary or appropriate. The provisions
of this section will expire and be of no further force or effect on the earlier of(i) the date on which
the Developers no longer owns property within the CFD that is responsible for more than 20% of the
total Special Tax that may be levied on property within the CUD or(ii)July 1,2014.
11. Notices. Any notices required to be given pursuant to this agreement shall be given
in writing and shall be mailed to the parties at the following addresses:
PUD: Truckee Donner Public Utility District
11570 Donner Pass Road
P.O. Box 309
Truckee, California 96160
Attention: General Manager
Developer: Old Greenwood, LLC
c/o East West Partners -Tahoe
P.O. Box 2537
Truckee, California 96160
Attention: Mark Wasley
12. Miscellaneous. This Agreement and any dispute arising hereunder shall be governed
by and interpreted in accordance with the laws of the State of California. Any action at law or in
equity arising under this Agreement brought by any party hereto for the purpose of enforcing,
construing or determining the validity of any provision of this Agreement shall be filed and tried in
the Nevada County Superior Court, and the parties hereby waive all provisions of law providing for
the filing,removal or change of venue to any other court.
As used herein, the singular of any word includes the plural, and terms in the masculine
gender shall include the feminine and vice versa.
The parties hereto hereby agree that an implied standard of reasonableness shall govern all
actions of the parties hereunder, and the parties hereby covenant to one another to act in good faith
and to deal fairly with one another to effectuate the purposes of this Agreement.
8
DOCSOC1988372v5S22925.0009
This is intended to be a fully integrated agreement which contains the entire agreement
between the parties with respect to the matters pertaining to the process of acquisition by the PUD of
the Facilities.
Time is of the essence with respect to this Agreement and each and every provision hereof.
Except as may be specifically provided herein to the contrary, no third party shall be the
express or implied beneficiary of this Agreement or any of its provisions, and no such third party
may bring any action in law or equity with respect thereto.
9
DOCSOC,988372a5\22925,0009
IN WITNESS WHEREOF, the parties hereto have caused this Acquisition and Disclosure
Agreement to be executed by their authorized representatives as of the effective date stated above.
TRUCKEE DONNER PUBLIC UTILITY
DISTRICT
By:
President of the Board of Directors
Attest:
By:
District Clerk
OLD GREENWOOD,LLC
By: EAST WEST RESORT DEVELOPMENT V,
L.P., L.L.P.,its Manager
By:HE HOLDING CORP., its General Partner
By:
Blake L. Riva,Vice President
10
DOCSOC988372v522925 0009
EXHIBIT A
FACILITIES, SEGMENTS AND ACQUISITION PRICES
PUD-Water Facilities
1 Water facilities connecting Glenshire Well to water storage
located within District 282,000
2 Water storage facility within District including all connections and
control devices(360,000 gallon water tank) 571,000
3 Water distribution facilities constructed and completed in 2001
connecting water storage facility to road entrance and existing structures 221,000
4 Water source distribution system serving all residential and commercial
properties adjoining Fairway Drive,Lookout Loop,Settler's Lane,
Caleb Drive,Caleb Circle,Lookout Circle and including
20"water mainline connecting water storage facility to Fiberboard
under crossing. 2,220,000
5 Development Agreement water connection fee 86,000
6 Water source distribution system-TDPUD-on-site production well 750,000
7 Water source distribution system and water agreement costs serving all residential
and commercial properties on Martis Forest Court 104,000
8 Water source distribution system and water agreement costs serving all residential
and commercial properties on Miners Trail 148,000
9 Water source distribution system and water agreement costs serving all residential
and commercial properties on Carson Range Court 151,000
10 Water source distribution system and wafer agreement costs serving all residential
and commercial properties on Sutter's Trail 199,000
1 I Water source distribution system and water agreement costs serving all residential
and commercial properties on Gold Rush Trail 39,000
12 Water source distribution system and water agreement costs serving all residential
and commercial properties on Trapper's Trail 112,000
13 Water source distribution system and water agreement cost serving all residential
and commercial properties on Frontier Trail 108,000
Total PUD-Water Facilities 4,991,000
PUD-Electrical Facilities
14 Offsite electrical facilities connecting Glenshire Drive to Interstate 80
as constructed and completed in 2001 1.138,000
15 Electrical infrastructure required to service residential and commercial
parcels adjoining Fairway Drive,Lookout Loop,Settler's Lane,Caleb
Drive,Caleb Circle,Lookout Circle and including but not
limited to design,conduit,trenching,transformers and installation
of cabling. 960,000
16 Development Agreement electrical connection fee 310,000
17 Electrical infrastructure and electrical agreement costs required to service residential
and commercial properties on Martis Forest Court 64,000
18 blecnreal infrastructure and electrical agreement costs required to service residential
and commercial properties on Miners Trail 91,000
19 Electrical infrastructure and electrical agreement costs required to service residential
and commercial properties on Carson Range Court 93,000
20 Electrical infrastructure and electrical agreement costs required to service residential
and commercial properties on Sutter's Trail 122,000
21 Electrical infrastructure and electrical agreement costs required to service residential
and commercial properties on Gold Rush Trail 24,000
22 Electrical infrastructure and electrical agreement costs required to service residential
and commercial properties on Trapper's Trail 69,000
23 Electrical infrastructure and electrical agreement costs required to service residential
and commercial properties on Frontier"frail 66,000
Total PUD-Electrical Facilities 2,937,000
PUD-Fiber Facilities
24 Firer infrastructure connecting residential and commercial parcels adjoining Fairway
Drive from 100 meters north of Lot D4,Lookout Loop,Lookout Circle,Caleb Drive,
Caleb Circle and Settler's Lane. 362,000
25 Fiber Optic Cable connecting residential and commercial parcels adjoining Fairway
Drive from 100 meters north of Lot D4,Lookout Loop,Lookout Circle,Caleb Drive,
Caleb Circle and Settler's Lane. 253,000
'Total PUD-Fiber Facilities 615,000
A-1
DOCSOCA988372v5t22925.0009
EXHIBIT A (continued)
FACILITIES,SEGMENTS AND ACQUISITION PRICES
Town-Roadways
26 Roadways including Old Truckee Airport Road from the intersection of fidersrate 80 exit
to die eastcm property boundary m constructed in 2001 469,000
27 Roadways including Fairway Drive from the intesection of Old Truckee Airport Road to
100 meters south of D4 308 000
28 Roadways including Fairway Drive fmm 100 meters south of lot D4 to third
iustersectlon with Lookout Loop and connecting roadways including
Lookout Loop,Lookout Circle,Caleb Drive,Caleb Circle and Settler's Lane 2,147,000
29 Roadways for Marls Forest Court 79,000
30 Roadways for Miners Tmil 113,000
31 Roadways for Cancer Range Court 115,000
32 Roadways for Sutter's Trail 152,000
33 Roadways for Gold Rush Trail 29,000
34 Roadways for Trapper's Trail 95,000
35 Roadways for Frontier Trail 82,000
36 Road Cut Slope Landscape 76,000
37 Street Signs 49,000
38 Street Lighting 127,000
39 Fire Cmuccomr Road Late 26,000
Total I own-Roadways 3,957,000
Town-Storm Water Systems
40 Storm water system including all v-ditches,culverts,and infiltration ponds associated
with Fairway Drive from the intersection of Old Truckee Airport Road to 100
meters south of Lot D4 and including the water tank road 328,000
41 Storm water systems including all v-ditches,culverts and infiltration ponds
associated with the remaining segments of Fairway Drive,and all other connecting
roadways including Lookout Loop,Lookout Circle,Caleb Drive,Caleb
Circle and Settler's Lane 817,000
42 Storm Water system including all v-ditches,culverts and infiltration ponds associated
with the properties m Maras Forest Court 47,000
43 Storm Water system including all v-ditches,culverts and infiltration ponds associated
with the properties on Miners Trail 67,000
44 Storm Water System including all v-ditches,culverts and infiltration ponds associated
with the properties on Carson Range Court 68,000
45 Storm Water system including all v-ditches,culverts and infiltration ponds associated
with the properties on Saber's Trail 90,000
46 Storm Water system including all v-ditches,culverts and infiltration ponds associated
with the properties on Gold Rosh Trail 18,000
47 Storm Water system including all v-ditches,culverts and infiltration ponds associated
with the properties on Tripper's Trail 50,000
48 Storm Water system including all v-ditches,culverts and infiltration ponds associated
with the properties on Frontier Trail 49,000
Total Town-Stan Water Systems F534,00o
CFD Formation Cost
49 CFD Formation Cost 200,000
Total CFD Fornrafion Cost 200,000
14,134,W0
A-2
D0CS0CA988372v5122925.0009
EXHIBIT B
FORM OF PUD FACILITIES PAYMENT REQUEST
Truckee Donner Public Utility District
Community Facilities District No. 03-1
(Old Greenwood)
The undersigned hereby requests payment of the Purchase Price of the Segment or Segments
described in Attachment A attached hereto. Capitalized undefined terms shall have the meanings
ascribed thereto in the Acquisition and Funding Agreement, dated as of , 2003 (the
"Acquisition Agreement'), by and between the Truckee Donner Public Utility District (the "PUD"),
on behalf of itself and the Truckee Donner Public Utility District Community Facilities District
No. 03-1 (Old Greenwood) (the "CID"), and Old Greenwood, LLC (the "Developer"). In
connection with this Payment Request, the undersigned hereby represents and warrants to the CFD
and the PUD as follows:
1. He (she) is a duly authorized officer of the Developer, qualified to execute this
request for payment on behalf of the Developer and knowledgeable as to the matters forth herein.
2. Each of the Segments described in Attachment A has been completed in
accordance with the Plans therefor.
3. The true and correct Actual Cost of each Segment for which payment is
requested is set forth in Attachment A.
4. Attached hereto are invoices, receipts, worksheets and other evidence of costs
which are in sufficient detail to allow the PUD Authorized Representative to verify the Actual Cost of
each Segment for which payment is requested.
5. There has not been filed with or served upon the Developer notice of any lien,
right to lien or attachment upon, or claim affecting the right to receive the payment requested herein
which has not been released or will not be released simultaneously with the payment of such obligation,
other than materialmen's or mechanics'liens accruing by operation of law. Copies of lien releases for all
work for which payment is requested hereunder are attached hereto.
b. The Developer is in compliance with the terms and provisions of the Acquisition
Agreement.
I hereby declare under penalty of perjury that the above representations and
warranties are true and correct.
Date:
Developer Representative
B-1
DOCS00988372v5122925.0009
APPROVAL BY THE PUD AUTHORIZED REPRESENTATIVE
The Actual Cost of each Segment described in Attachment A has been reviewed, verified and
approved by the PUD Authorized Representative. Payment of the Purchase Price of each such
Segment is hereby approved.
Date:
By:
Truckee Donner Public Utility District
Assistant General Manager
B-2
DOCSOCA988372v5Q2925.0009
ATTACHMENT A
Segment Acquisition Cost Actual Cost Purchase Price*
Total Purchase Price to
be Paid:
*Lesser of Acquisition Cost or Actual Cost
B-3
DOCSO(7988372v5\22925 0009
EXHIBIT C
FORM OF TOWN FACILITIES PAYMENT REQUEST
Truckee Donner Public Utility District
Community Facilities District No.03-1
(Old Greenwood)
The undersigned hereby requests payment of the Purchase Price of the Segment or Segments
described in Attachment A attached hereto. Capitalized undefined terms shall have the meanings
ascribed thereto in the Acquisition and Funding Agreement, dated as of , 2003 (the
"Acquisition Agreement'),by and between the Truckee Donner Public Utility District(the "PUD"),
on behalf of itself and the Truckee Donner Public Utility District Community Facilities District
No. 03-1 (Old Greenwood) (the"CFD"), and Old Greenwood LLC(the "Developer"). In connection
with this Payment Request,the undersigned hereby represents and warrants to the PUT), the CFD and
the Town as follows:
I. He (she)is a duly authorized officer of the Developer, qualified to execute this
request for payment on behalf of the Developer and knowledgeable as to the matters forth herein.
2. Each of the Segments described in Attachment A has been completed in
accordance with the Plans therefor.
3. The true and correct Actual Cost of each Segment for which payment is
requested is set forth in Attachment A.
q. Attached hereto are invoices, receipts, worksheets and other evidence of costs
which are in sufficient detail to allow the Town Manager of the Town to verify the Actual Cost of each
Segment for which payment is requested.
5. The Developer has submitted or submits herewith to the Town Manager of the
Town as-built drawings or similar plans and specifications for the Segments for which payment is
requested,and such drawings or plans and specifications,as applicable,are true,correct and complete.
6. There has not been filed with or served upon the Developer notice of any lien,
right to lien or attachment upon, or claim affecting the right to receive the payment requested herein
which has not been released or will not be released simultaneously with the payment of such obligation,
other than materialmen's or mechanics'liens accruing by operation of law. Copies of lien releases for all
work for which payment is requested hereunder are attached hereto.
T The Developer is in compliance with the terms and provisions of the Acquisition
Agreement.
I hereby declare under penalty of perjury that the above representations and
warranties are true and correct.
Date:
Developer Representative
C-1
DOCSOC1988372v5\22925.0009
f
f
f
i
i
f
APPROVAL BY THE TOWN MANAGER
The Actual Cost of each Segment described in Attachment A has been reviewed,verified and
approved by the undersigned. Payment of the Purchase Price of each such Segment is hereby
approved.
Date: TOWN OF TRUCKLE
By:
Town Manager
APPROVAL BY THE PUD AUTHORIZED REPRESENTATIVE
Based upon the representations and warranties of the Developer and the approval of the
Town,payment of the Purchase Price for each Segment is hereby approved.
Date:
By:
Truckee Donner Public Utilities District
Assistant General Manager
C-2
DOCSOCA98837201,22925.0009
r.
t
ATTACHMENT A
Y
Segment Acquisition Cost Actual Cost Purchase Price*
Total Purchase Price to
be Paid:
*Lesser of Acquisition Cost or Actual Cost
C-3
DOCSOCV988372v5\22925.0009
-714
RESOLUTION NO.
RESOLUTION OF THE BOARD OF DIRECTORS OF THE
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
ESTABLISHING TRUCKEE DONNER PUBLIC UTILITY
DISTRICT COMMUNITY FACILITIES DISTRICT NO. 03-1
(OLD GREENWOOD), AUTHORIZING THE LEVY OF A
SPECIAL TAX THEREIN AND ESTABLISHING AN ANNUAL
APPROPRIATIONS LIMIT
WHEREAS, on August 6, 2003, pursuant to a petition filed by Truckee Land, LLC(the
"Petitioner")the Board of Directors (the"Board of Directors") of the Truckee Donner Public Utility
District(the"Public Utility District") adopted a resolution(the "Resolution of Intention") stating its
intention to form Truckee Donner Public Utility District Community Facilities District No. 03-1 (Old
Greenwood) (the "Community Facilities District") pursuant to the Mello-Roos Community Facilities
Act of 1982, as amended (the"Act'); and
WHEREAS, a copy of said resolution, setting forth a description of the proposed boundaries
of the Community Facilities District,the facilities to be financed by the Community Facilities
District and the rats and method of apportionment of the special tax proposed to be levied within the
Community Facilities District,is on file with the Clerk of the Public Utility District(the "District
Clerk") and is incorporated herein by reference; and
WHEREAS, on August 6,2003, the Board of Directors also adopted a resolution stating its
intention to incur bonded indebtedness in an amount not to exceed $15,000,000 for the purpose of
financing (i) the cost of purchasing, constructing, expanding,improving or rehabilitating the facilities
listed on Appendix A to the Resolution of Intention, and all appurtenances and appurtenant work
associated with the foregoing(collectively the"Facilities") and(ii)the incidental expenses to be
incurred in connection with financing the Facilities, including costs associated with the creation of
the Community Facilities District and the issuance of bonds, the establishment and replenishment of
bond reserve and special reserve funds (the "Incidental Expenses"); all as more fully described in
said resolution; and
WHEREAS, notice was published and mailed as required by law relative to the intention of
the Board of Directors to form the Community Facilities District and to incur bonded indebtedness in
an amount not to exceed$15,000,000; and
WHEREAS, there has been filed with the Board of Directors a report containing a
description of the facilities necessary to meet the needs of the Community Facilities District and an
estimate of the cost of such facilities as required by Section 53321.5 of the Government Code (the
"Report"); and
WHEREAS, the Board of Directors has held a public hearing as required by law to
determine whether it should proceed with the formation of the Community Facilities District, issue
bonds to pay for the Facilities and the Incidental Expenses and authorize the rate and method of
apportionment of a special tax to be levied within the Community Facilities District for the purposes
described in the aforesaid resolutions; and
DOCSOCA9950370. 22925.0009
WHEREAS, at said hearing all persons desiring to be heard on all matters pertaining to the
formation of the Community Facilities District, the levy of a special tax and the issuance of bonds to
pay for the cost of the proposed Facilities and Incidental Expenses were heard, and a full and fair
hearing was held; and
WHEREAS, at the public hearing evidence was presented to the Board of Directors on the
matters before it, and the proposed special tax to be levied within the Community Facilities District
was not precluded by a majority protest of the type described in Government Code Section 53324,
and the Board of Directors is sufficiently advised as to all matters relating to the formation of the
Community Facilities District, the levy of the special tax and the issuance of bonded indebtedness;
and
WHEREAS, there have been fewer than twelve registered voters residing in the proposed
boundaries of the Community Facilities District for the statutory period and the qualified electors in
the Community Facilities District are the landowners within the Community Facilities District; and
WHEREAS, on the basis of all of the foregoing, the Board of Directors has determined at
this time to proceed with the establishment of the Community Facilities District and to call an
election therein to authorize(i) the levy of special taxes pursuant to the rate and method of
apportionment of the special tax, as set forth in Attachment A hereto, (ii)the issuance of bonds to
pay for the Facilities and the Incidental Expenses, and (iii) the establishment of an appropriations
limit for the Community Facilities District;
NOW, THEREFORE,THE BOARD OF DIRECTORS OF TRUCKEE DONNER
PUBLIC UTILITY DISTRICT DOES HEREBY RESOLVE, DETERMINE AND ORDER AS
FOLLOWS:
Section I. The above recitals are true and correct.
Section 2. A community facilities district designated "Truckee Donner Public Utility
District Community Facilities District No. 03-1 (Old Greenwood)" is hereby established pursuant to
the Act. The Board of Directors hereby finds and determines that all prior proceedings taken with
respect to the establishment of the Community Facilities District were valid and in conformity with
the requirements of law, including the Act. This finding is made in accordance with the provisions of
Section 53325.1(b) of the Act.
Section 3. The boundaries of the Community Facilities District are established as shown
on the map designated`Boundary Map of Proposed Community Facilities District No. 03-1 (Old
Greenwood) Truckee Donner Public Utility District,"which map is on file in the office of the District
Clerk and, pursuant to Sections 3111 and 3113 of the Streets and Highways Code, was recorded on
August 18, 2003 in the Book of Maps of Assessment and Community Facilities Districts in the
Office of the County Recorder of Nevada County in Book No. 1, at Page 20, as Instrument
No. 2003-0043758.
Section 4. The facilities authorized to be provided for the Community Facilities District
are those identified as the"Facilities" in the recitals of this resolution.
Section 5. It is the intention of the Board of Directors, subject to the approval of the
qualified electors of the Community Facilities District, to levy the proposed special tax at the rates
DOCSOCA995037v3\22925.0009
set forth in Attachment A hereto on all non-exempt property within the Community Facilities District
sufficient to pay for(i)the Facilities, (ii)the principal and interest and other periodic casts on the
bonds proposed to be issued to finance the Facilities, including the establishment and replenishment
of reserve funds, any remarketing, credit enhancement and liquidity facility fees and other expenses
of the type permitted by Section 53345.3 of the Act; and(iii)the other Incidental Expenses, including
the costs of forming the Community Facilities District and administering the levy and collection of
the special tax and all other administrative costs of the special tax levy and bond issues. The Public
Utility District expects to incur, and in certain cases has already incurred,incidental expenses in
connection with the creation of the Community Facilities District, the issuance of bonds, the levying
and collecting of the special tax, the completion and inspection of the Facilities and the annual
administration of the bonds and the Community Facilities District. The rate and method of
apportionment of the special tax is described in detail on Attachment A hereto and incorporated
herein by this reference, and the Board of Directors hereby finds that Attachment A contains
sufficient detail to allow each landowner within the Community Facilities District to estimate the
maximum amount that may be levied against each parcel. As described in greater detail in the
Report,which is incorporated by reference herein, the special tax is based generally on the land use,
location and,in some cases, area of each parcel of real property within the Community Facilities
District and,accordingly,is hereby determined to be reasonable. The special tax shall be levied on
each assessor's parcel for a period not to extend beyond fiscal year 2044-2045. The special tax is
apportioned to each parcel on the foregoing basis pursuant to Section 53325.3 of the Act, and such
special tax is not on or based upon the ownership of real property. Under no circumstances shall the
special tax levied against any parcel used for private residential purposes be increased by more than
10%as a consequence of delinquency or default by the owner of any other parcel or parcels within
the District.
The Assistant General Manager of the Public Utility District, 11570 Donner Pass Road,
Truckee,California 96160,telephone number(530) 582-3934,will be responsible for preparing
annually,or authorizing a designee to prepare, a current roll of special tax levy obligations by
assessor's parcel number and will be responsible for estimating futurespecial tax levies pursuant to
Section 53340.2 of the Act.
Section 6. In the event that a portion of the property within the Community Facilities
District shall become for any reason exempt,wholly or partially,from the levy of the special tax
specified on Attachment A,the Board of Directors shall, on behalf of theCommunity Facilities
District,increase the levy(to the extent necessary and permitted by law and these proceedings)upon
the remaining property within the Community Facilities District which is not exempt in order to yield
the required debt service payments on any outstanding bonds of the Community Facilities District or
to prevent the Community Facilities District from defaulting on any of its other obligations or
liabilities. The amount of the special tax will be set in accordance with the rate and method of
apportionment of the special tax attached hereto as Attachment A.
Section 7. Upon recordation of a notice of special tax lien pursuant to Section 3114.5 of
the Streets and Highways Code, a continuing lien to secure each levy of the special tax shall attach to
all non-exempt real property in the Community Facilities District,and this lien shall continue in force
and effect until the special tax obligation is prepaid and permanently satisfied and the lien canceled
in accordance with law or until collection of the special tax by the Community Facilities District
ceases.
.3.
DOCSOC;9950370\22925.0009
Section 8. It is hereby further determined that there will be no ad valorem property tax
levied on property within the Community Facilities District for the exclusive purpose of paying the
principal of or interest on bonds or other indebtedness incurred to finance the construction of capital
facilities which provide the same services to the territory of the Community Facilities District as are
proposed to be provided by the Facilities to be financed by the Community Facilities District.
Section 9. The Public Utility District may accept advances of funds or work-in-kind
from any source, including, but not limited to,the Petitioner and other private persons or private
entities, for any authorized purpose, including, but not limited to,paying any cost incurred by it in
creating the Community Facilities District. The Public Utility District may enter into an agreement
with the person or entity advancing the funds or work-in-kind, to repay all or a portion of the funds
advanced, or to reimburse the person or entity for the value, or cost, whichever is less, of the work-
in-kind, as determined by the Board of Directors, with or without interest.
Section 10. Written protests against the establishment of the Community Facilities
District have not been filed by one-half or more registered voters within the boundaries of the
Community Facilities District or by the property owners of one-half(1l2) or more of the area of land
within the Community Facilities District. The Board of Directors hereby finds that the proposed
special tax has not been precluded by a majority protest pursuant to Section 53324 of the Act.
Section 11. The annual appropriations limit(as defined in Section 8(h) of Article MIT B
of the California Constitution) of the Community Facilities District is hereby established at
$15,000,000.
Section 12. An election is hereby called for the Community Facilities District on the
propositions of levying the special tax on the property within the Community Facilities District and
establishing the appropriations limit for the Community Facilities District pursuant to
Section 53325.7 of the Act and shall be consolidated with the election on the proposition of incurring
bonded indebtedness, pursuant to Section 53351 of the Act. The language of the proposition to be
placed on the ballot is attached hereto as Attachment B.
Section 13. The date of the election for the Community Facilities District on the
proposition of incurring the bonded indebtedness, authorizing the levy of the special tax and
establishing the appropriations limit for the Community Facilities District shall be October 14, 2003.
The District Clerk shall conduct the election. Except as otherwise provided by the Act, the election
shall be conducted by personally delivered or mailed ballot and in accordance with the provisions of
law regulating elections of the Public Utility District insofar as such provisions are determined by the
District Clerk to be applicable.
It is hereby found that there have been fewer than twelve persons registered to vote within the
territory of the Community Facilities District for each of the ninety days preceding the close of the
public hearing described above; and,pursuant to Section 53326 of the Government Code, each
landowner who is the owner of record on the date hereof or the authorized representative thereof
shall have one vote for each acre or portion thereof that he or she owns within the Community
Facilities District.
Section 14. The preparation of the Report is hereby ratified. The Report, as submitted, is
hereby approved and is made a part of the record of the public hearing regarding the formation of the
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DOCSOCA995037v3'22925.0009
Community Facilities District, and is ordered to be kept on file with the transcript of these
proceedings and open for public inspection.
ADOPTED and APPROVED by the Board of Directors of the Truckee Donner Public
Utility District on this 14th day of October, 2003 by the following vote:
AYES:
NOTES:
ABSENT:
ABSTAIN:
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
By:
President of the Board of Directors
ATTEST:
District Clerk
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DOCSOCA995037v3\22925,0009
ATTACHMENT A
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
COMMUNITY FACILITIES DISTRICT NO. 03-1
(OLD GREENWOOD)
RATE AND METHOD OF APPORTIONMENT OF SPECIAL TAX
A Special Tax applicable to each Assessor's Parcel in the Truckee Donner Public Utility District
Community Facilities District No. 03-1 (Old Greenwood) [herein "CFD No. 03-1"] shall be levied
and collected according to the tax liability determined by the Board of Directors or its designee,
through the application of the appropriate amount or rate for Taxable Property, as described below.
All of the property in CFD No. 03-1, unless exempted by law or by the provisions of Section G
below, shall be taxed for the purposes, to the extent, and in the manner herein provided, including
property subsequently annexed to the CFD unless a separate Rate and Method of Apportionment is
adopted for the annexation area.
A. DEFINITIONS
The terms hereinafter set forth have the following meanings:
"Acre" or"Acreage" means the land area of an Assessor's Parcel as shown on an Assessor's Parcel
Map, or if the land area is not shown on an Assessor's Parcel Map, the land area shown on the
applicable Final Map or other parcel map recorded with the County.
"Act" means the Mello-Roos Community Facilities Act of 1982, as amended, being Chapter 2.5,
(commencing with Section 53311), Division 2 of Title 5 of the California Government Code.
"Administrative Expenses" means any or all of the following: the fees and expenses of any fiscal
agent or trustee (including any fees or expenses of its counsel) employed in connection with any
Bonds, and the expenses of the TDPUD carrying out its duties with respect to CFD No. 03-1 and the
Bonds, including, but not limited to, levying and collecting the Special Tax, the fees and expenses of
legal counsel, charges levied by the County Auditor's Office, Tax Collector's Office, and/or
Treasurer's Office, costs related to annexing property into the CFD, costs related to property owner
inquiries regarding the Special Tax, amounts needed to pay rebate to the federal government with
respect to the Bonds, costs associated with complying with any continuing disclosure requirements
for the Bonds and the Special Tax, and all other costs and expenses of the TDPUD in any way related
to the establishment or administration of the CFD.
"Administrator" means the person or firm designated by the TDPUD to administer the Special Tax
according to this Rate and Method of Apportionment of Special Tax.
"Affordable Unit" means any Unit within CFD No. 03-1 which, in the sole discretion of the Town,
is either deed-restricted to maintain the affordability of the Unit or is determined by the
Administrator to have been planned, designed and/or built to be an affordable unit.
"Assessor's Parcel" or "Parcel" means a lot or parcel shown on an Assessor's Parcel Map with an
assigned Assessor's Parcel number.
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DOCSOCA99503703 22925.0009
"Assessor's Parcel Map" means an official map of the County Assessor designating parcels by
Assessor's Parcel number.
"Association Property" means any property within the CFD that is owned by a homeowners
association, excluding Association Property under the pad or footprint of a Unit.
"Board of Directors" or"Board" means the Board of Directors of the TDPUD.
"Bonds" means bonds or other debt (as defined in the Act), whether in one or more series, issued,
insured or assumed by CFD No. 03-1 related to public infrastructure and/or improvements that are
authorized to be funded by CFD No. 03-1.
"Capitalized Interest" means funds in any capitalized interest account available to pay debt service
on Bonds.
"CFD Formation" means the date on which the Resolution of Formation to form CFD No. 03-1 was
adopted by the Board of Directors.
"County" means the County of Nevada.
"Developed Property" means, in any Fiscal Year, the following:
• for Single Family Detached Property, all parcels for which a Final Map was recorded
prior to May I of the preceding Fiscal Year
• for Single Family Attached Property and Rental Property, all parcels for which a
building permit for new construction of a residential structure was issued prior to
May 1 of the preceding Fiscal Year.
"Excess Public Property" means the acres of Public Property that exceed the acreage exempted in
Section G below. In any Fiscal Year in which a Special Tax must be levied on Excess Public
Property pursuant to Step 4 in Section E below, Excess Public Property shall be those Assessor's
Parcel(s) that most recently became Public Property based on the dates on which Final Maps
recorded creating such Public Property.
"Expected Land Uses" means the total number of Units expected to be constructed within the CFD
as determined from time to time by the Administrator after applying the steps set forth in Section D
below. At CFD Formation, the Expected Land Uses were based on the Tentative Map. The
Expected Land Uses at CFD Formation are summarized in Attachment I hereto; the Administrator
shall update Attachment 1 each time a change occurs to the land use plans for property in the CFD.
"Expected Maximum Special Tax Revenues" means the amount of annual revenue that would be
available if the Maximum Special Tax was levied on the Expected Land Uses. The Expected
Maximum Special Tax Revenues as of CFD Formation are shown in Attachment 1 of this Rate and
Method of Apportionment of Special Tax.
"Final Bond Sale" means the last series of Bonds that will be issued on behalf of CFD No. 03-1
(excluding any Bond refundings), as determined in the sole discretion of the TDPUD.
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DocsoC19950370 a2925.0009
"Final Map" means a final map, or portion thereof, recorded by the County pursuant to the
Subdivision Map Act (California Government Code Section 66410 et seq.) that creates individual
lots on which building permits for new construction may be issued without further subdivision and
for which no further subdivision is anticipated pursuant to the Tentative Map.
"Fiscal Year"means the period starting July 1 and ending on the following June 30.
"Fractional Unit" means a single family detached unit or a single family attached unit for which
multiple owners may each purchase a fractional share of ownership (also referred to as a timeshare
unit by the California Department of Real Estate).
"Golf Course Property" means any property within CFD No. 03-1 that is used as a golf course,
including but not limited to, a driving range, clubhouse, parking, lodge, outbuildings, and other golf-
related amenities. Golf Course Property shall also include any property within the CFD that is used
for a swim, tennis, and/or fitness facility.
"Maximum Special Tax" means the greatest amount of Special Tax that can be levied on an
Assessor's Parcel in any Fiscal Year determined in accordance with Section C below, as may be
adjusted pursuant to Step 3 in Section D below.
"Other Property" means, in any Fiscal Year, all Parcels of Taxable Property which are not Single
Family Detached Property, Single Family Attached Property, or Undeveloped Property.
"Proportionately" means, for Developed Property, that the ratio of the actual Special Tax levied in
any Fiscal Year to the Maximum Special Tax authorized to be levied in that Fiscal Year is equal for
all Assessor's Parcels of Developed Property, and for Undeveloped Property that the ratio of the
actual Special Tax to the Maximum Special Tax is equal for all Assessor's Parcels of Undeveloped
Property.
"Public Property" means any property within the boundaries of CFD No. 03-1 that is owned by the
federal government, State of California, County, Town, TDPUD, or other public agency.
"Rental Property" means, in any Fiscal Year, all Parcels within the CFD for which a building
permit was issued for construction of a residential structure with multiple Units that share common
walls, all of which are offered or are expected to be offered for rent to the general public and/or
employees. Fractional Units within the CFD shall at no time be categorized as Rental Property.
"SFD Lot" means an individual residential lot, identified and numbered on a recorded Final Map, on
which a building permit has been or is permitted to be issued for construction of a single family
detached unit without further subdivision of the lot and for which no further subdivision of the lot is
anticipated pursuant to the Tentative Map.
"Single Family Attached Property" means, in any Fiscal Year, all Parcels of Developed Property
for which a building permit was issued for construction of a residential structure consisting of two or
more Units that share common walls and are offered or expected to be offered as for-sale units,
including attached Fractional Units and such residential structures that meet that statutory definition
of a condominium contained in Civil Code Section 1351.
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DOCS0099503703 22925.0009
"Single Family Detached Property" means, in any Fiscal Year, all Parcels of Developed Property
for which a building permit was issued or is permitted to be issued for construction of a Unit that
does not share a common wall with another Unit, including detached Fractional Units.
"Special Tax"means a Special Tax levied in any Fiscal Year to pay the Special Tax Requirement.
"Special Tax Requirement" means the amount necessary in any Fiscal Year to: (i) pay principal
and interest on Bonds which is due in the calendar year that begins in such Fiscal Year; (ii) create
and/or replenish reserve funds for the Bonds; (iii) cure any delinquencies in the payment of principal
or interest on Bonds which have occurred in the prior Fiscal Year or, based on existing delinquencies
in the payment of Special Taxes, are expected to occur in the Fiscal Year in which the tax will be
collected; (iv)pay Administrative Expenses; and(v)pay the costs of public improvements and public
infrastructure authorized to be financed by CFD No. 03-1. The amounts referred to in clauses (i)
and (ii) of the preceding sentence may be reduced in any Fiscal Year by: (i) interest earnings on or
surplus balances in funds and accounts for the Bonds to the extent that such earnings or balances are
available to apply against debt service pursuant to a Bond indenture, Bond resolution, or other legal
document that sets forth these terms; (ii) proceeds received by CFD No. 03-1 from the collection of
penalties associated with delinquent Special Taxes; and(iii) any other revenues available to pay debt
service on the Bonds as determined by the Administrator.
"Taxable Other Property" means, in any Fiscal Year, all Assessor's Parcels of Other Property
which had, in prior Fiscal Years, been: (i) developed and taxed as Single Family Detached Property
or Single Family Attached Property, or (ii) designated in the Tentative Map as Single Family
Detached Property or Single Family Attached Property and, when a change to the Expected Land
Uses was proposed designating the Parcel as Other Property, no prepayment was received pursuant to
Step 3.b in Section D below.
"Taxable Property" means all of the Assessor's Parcels within the boundaries of CFD No. 03-1
which are not exempt from the Special Tax pursuant to law or Section G below.
"Tax Zone" means one of the two mutually exclusive geographic areas defined below and identified
in Attachment 2 of this Rate and Method of Apportionment of Special Tax, and any subsequent Tax
Zones created to contain property annexed into the CFD after CFD Formation.
"Tax Zone#V means the geographic area that is specifically identified in Attachment 2 of this Rate
and Method of Apportionment of Special Tax as Tax Zone#L
"Tax Zone#2" means the geographic area that is specifically identified in Attachment 2 of this Rate
and Method of Apportionment of Special Tax as Tax Zone#2.
"TDPUD" means the Truckee Donner Public Utility District.
"Tentative Map" means the Tentative Map and Conditional Use Permit for the Old Greenwood
Planned Development, which was included as Exhibit D to the Development Agreement between
East West Partners and the Town which was recorded at the County Recorder's Office on August 23,
2001
"Town" means the incorporated Town of Truckee.
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DOCSOCA995037v3\22925.0009
"Undeveloped Property" means, in any Fiscal Year, all Parcels of Taxable Property within the CFD
that are not Developed Property.
"Unit" means (i) for Single Family Detached Property, an individual single-family detached unit,
and (ii) for Single Family Attached Property, an individual residential unit within a duplex, triplex,
fourplex, townhome, or condominium structure.
B. DATA FOR ANNUAL ADMINISTRATION
On or about July 1 of each Fiscal Year, the Administrator shall identify the current Assessor's Parcel
numbers for all Parcels of Taxable Property. The Administrator shall also determine: (i) whether
each Assessor's Parcel of Taxable Property is Developed Property or Undeveloped Property, (ii) for
Developed Property, which Parcels are Single Family Detached Property, Single Family Attached
Property, and Taxable Other Property, (iii) for Parcels of Single Family Attached Property, the
number of Units on each Parcel, (iv) whether there are Parcels of Rental Property, Excess Public
Property or Parcels with Affordable Units, and (v)the Special Tax Requirement.
For Single Family Attached Property, the number of Units shall be determined by referencing the site
plan, condominium plan, or other development plan. If, in any Fiscal Year, an Assessor's Parcel
includes both Developed Property and Undeveloped Property, the Administrator shall determine the
Acreage associated with the Developed Property, subtract this Acreage from the total Acreage of the
Assessor's Parcel, and use the remaining Acreage to calculate the Special Tax that will apply to
Undeveloped Property within the Assessor's Parcel.
In addition, the Administrator shall, on an ongoing basis, monitor whether changes in land use have
been proposed that will affect the Expected Land Uses and whether Final Maps that have been
proposed for approval by the Town are consistent with the Expected Land Uses. If changes to the
Expected Land Uses are proposed, the Administrator shall apply the steps set forth in Section D
below.
C. MAXIMUM SPECIAL TAX
1. Single Family Detached Property
The Maximum Special Tax for Single Family Detached Property in Zone 1 for Fiscal Year
2004-05 is S3,000 per SFD Lot. The Maximum Special Tax for Single Family Detached
Property in Zone 2 for Fiscal Year 2004-05 is S3,400 per SIT) Lot. On July 1, 2005 and on
each July 1 thereafter, these Maximum Special Tax rates shall be increased by an amount
equal to two percent(2%) of the amount in effect for the prior Fiscal Year.
2. Single Family Attached Property
The Maximum Special Tax for Single Family Attached Property in Zone 1 for Fiscal Year
2004-05 is S3,000 per Unit. The Maximum Special Tax for Single Family Attached Property
in Zone 2 for Fiscal Year 2004-05 is $3,400 per Unit. On Judy 1, 2005 and on each July I
thereafter, these Maximum Special Tax rates shall be increased by an amount equal to two
percent(2%) of the amount in effect for the prior Fiscal Year.
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DOCSOCA995037,3122925.0009
3. Taxable Other Property
The Maximum Special Tax for Taxable Other Property shall be the amount needed on a per-
acre basis to maintain the Maximum Special Tax that was assigned to the Parcel prior to the
Parcel becoming Taxable Other Property. After the Maximum Special Tax has been
determined for a Parcel of Taxable Other Property, the Maximum Special Tax shall be
increased each Fiscal Year thereafter by an amount equal to two percent (2%) of the amount
in effect the prior Fiscal Year.
4. Undeveloped Property
The Maximum Special Tax for Undeveloped Property for Fiscal Year 2004-05 is $11,325 per
Acre. On July 1, 2005 and on each July 1 thereafter, this Maximum Special Tax shall be
increased by an amount equal to two percent (2%) of the amount in effect for the prior Fiscal
Year.
Pursuant to Section 53321 (d) of the Act, the Special Tax levied against a Parcel used for
private residential purposes shall under no circumstances increase more than ten percent
(10%) as a consequence of delinquency or default by the owner of any other Parcel or
Parcels and shall, in no event, exceed the Maximum Special Tax in effect for the Fiscal Year
in which the Special Tax is being levied.
D. BACK-UP FORMULA
The Maximum Special Taxes set forth in Section C above were calculated based on the Expected
Land Uses at CFD Formation. The Administrator shall review Tentative Map revisions and other
changes to the land uses proposed within the CFD and compare the revised land uses to the Expected
Land Uses to evaluate the impact on the Expected Maximum Special Tax Revenues. In addition, the
Administrator shall review Final Maps to ensure they reflect the number of residential lots that was
anticipated in the Tentative Map.
If, prior to the Final Bond Sale, a change to the Expected Land Uses (a "Land Use/Entitlement
Change") is proposed that will result in a reduction in the Expected Maximum Special Tax
Revenues, no action will be needed pursuant to this Section D as long as the reduction in Expected
Maximum Special Tax Revenues does not reduce debt service coverage on outstanding Bonds below
the amount committed to in the Bond documents. Upon approval of the Land Use/Entitlement
Change, the Administrator shall update Attachment I to show the reduced Expected Maximum
Special Tax Revenues, and the reduced Expected Maximum Special Tax Revenues shall be the
amount used to determine the amount of the Final Bond Sale.
If a Land Use/Entitlement Change is proposed after the Final Bond Sale, the following steps shall
be applied:
Step 1: By reference to Attachment I (which will be updated by the Administrator
each time a Land Use/Entitlement Change has been processed according to
this Section D), the Administrator shall identify the Expected Maximum
Special Tax Revenues for CFD No. 03-1;
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DOCSOCi9950370A22925,0009
Step 2: The Administrator shall calculate the Maximum Special Tax revenues that
could be collected from property in the CFD if the Iand Use/Entitlement
Change is approved;
Step 3: If the amount determined in Step 2 is higher than that calculated in Step 1, the
Land Use/Entitlement Change may be approved without further action. if the
revenues calculated in Step 2 are less than those calculated in Step 1, and if:
(a) The landowner does not withdraw the request for the Land
Use/Entitlement Change that was submitted to the Town; or
(b) Before approval of the Land Use/Entitlement Change, the landowner
requesting the Land Use/Entitlement Change does not prepay a
portion of the Special Tax for the CFD in an amount that corresponds
to the lost Maximum Special Tax revenue, as determined by applying
the steps set forth in Section H below; or
(c) The Land Use/Entitlement Change proposes that a Parcel of Single
Family Detached Property or Single Family Attached Property be
developed as another land use (other than Public Property), and the
landowner requesting the Land Use/Entitlement Change fails to
submit a written request to the TDPUD to designate the Parcel as
Taxable Other Property, thereby maintaining the Expected Maximum
Special Tax Revenues for the Parcel,
then, the amount of the prepayment determined in Step 3.b shall be allocated
on a per-acre basis and included on the next property tax bill for all
Assessor's Parcels within the property affected by the Land Use/Entitlement
Change. The amount allocated to each Assessor's Parcel shall be added to
and, until paid, shall be a part of, the Maximum Special Tax for the
Assessor's Parcel.
If multiple Land Use/Entitlement Changes are proposed at one time (which
may include approval of multiple Final Maps at one time), the Administrator
may consider the combined effect of all the Land Use/Entitlement Changes to
determine if there is a reduction in Expected Maximum Special Tax Revenues
that necessitates implementation of Step 3.b or 3.c. If, based on this
comprehensive analysis, the Administrator determines that there is a
reduction in Expected Maximum Special Tax Revenue, and all of the Land
Use/Entitlement Changes are being proposed by the same land owner, the
Administrator shall determine the required prepayment(pursuant to Step 3.b)
by analyzing the combined impact of all of the proposed Land
Use/Entitlement Changes. Notwithstanding the foregoing, if the
Administrator analyzes the combined impacts of multiple Land
Use/Entitlement Changes, and the Town subsequently does not approve one
or more of the Land Use/Entitlement Changes that was proposed, the
Administrator shall once again apply the three steps set forth above to
determine the combined impact of those Land Use/Entitlement Changes that
were approved simultaneously by the Town.
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DOCSOC9950370v'2925,0009
If, based on the comprehensive analysis, the Administrator determines that
there is a reduction in Expected Maximum Special Tax Revenue, and the
Land Use✓Entitlement Changes are not all being proposed by the same land
owner, the Administrator shall consider the proposed Land Use/Entitlement
Changes individually to determine the required prepayment from each owner.
E. METHOD OF LEVY OF THE SPECIAL TAX
Each Fiscal Year, the Administrator shall determine the Special Tax Requirement to be collected in
that Fiscal Year, and the Special Tax shall be levied according to the steps outlined below.
Step 1: The Special Tax shall be levied Proportionately on each Parcel of Developed
Property within the CFD up to 100% of the Maximum Special Tax for each
Parcel for such Fiscal Year until the amount levied on Developed Property is
equal to the Special Tax Requirement prior to applying any Capitalized
Interest that is available in the CFD accounts.
Step 2: If additional revenue is needed after Step 1, and after applying Capitalized
Interest to the Special Tax Requirement, the Special Tax shall be levied
Proportionately on each Assessor's Parcel of Undeveloped Property within
the CFD, up to 100% of the Maximum Special Tax for Undeveloped Property
for such Fiscal Year determined pursuant to Section C;
Step 3: If additional revenue is needed after applying the first two steps, the Special
Tax shall be levied Proportionately on each Parcel of Association Property
within the CFD, up to 100% of the Maximum Special Tax for Undeveloped
Property for such Fiscal Year determined pursuant to Section C;
Step 4: If additional revenue is needed after applying the first three steps, the Special
Tax shall be levied Proportionately on each Assessor's Parcel of Excess
Public Property, exclusive of property exempt from the Special Tax pursuant
to Section G below, up to 100% of the Maximum Special Tax for
Undeveloped Property for such Fiscal Year determined pursuant to Section C.
F. COLLECTION OF SPECIAL TAX
The Special Taxes for CFD No. 03-1 shall be collected in the same manner and at the same time as
ordinary ad valorem property taxes, provided, however,that prepayments are permitted as set forth in
Section H below and provided further that the TDPUD may directly bill the Special Tax, may collect
Special Taxes at a different time or in a different manner, and may collect delinquent Special Taxes
through foreclosure or other available methods. The Special Tax for Fractional Units may be billed
either directly to individual fractional owners or to a homeowners association, which shall then bill
the individual fractional owners; non-payment of Special Taxes billed by the homeowners
association shall result in interest and penalties, and the fractional ownership shall be subject to
foreclosure proceedings as set forth in the Bond covenants.
The Special Tax shall be levied and collected until principal and interest on Bonds have been repaid,
costs of constructing or acquiring authorized facilities from Special Tax proceeds have been paid,
n-s
DOCSO(.",995037v3\22925.0009
and all administrative expenses have been reimbursed. However, in no event shall a Special Tax be
levied after Fiscal Year 2039-2040.
G. EXEMPTIONS
Notwithstanding any other provision of this Rate and Method of Apportionment of Special Tax, no
Special Tax shall be levied on tip to 30.31 Acres of Public Property. A separate amount of public
acreage may be exempted each time property annexes into CFD No. 03-1, and such additional
exemption shall only apply to property within the annexation area. A Special Tax may be levied on
Excess Public Property pursuant to Step 4 of Section E; however, a public agency may require that
the special tax obligation on land conveyed to it that would be classified as Excess Public Property be
prepaid pursuant to Section H below.
In addition, no Special Tax shall be levied in any Fiscal Year on (i) Golf Course Property, (ii) Rental
Property, (iii) Affordable Units, or (iv) Other Property unless the Parcel is determined to be Taxable
Other Property.
H. PREPAYMENT OF SPECIAL TAX
The following definitions apply to this Section H:
"Outstanding Bonds" means all Previously Issued Bonds which remain outstanding, with
the following exception: if a Special Tax has been levied against, or already paid by, an
Assessor's Parcel making a prepayment, and a portion of the Special Tax will be used to pay
a portion of the next principal payment on the Bonds that remain outstanding (as determined
by the Administrator), that next principal payment shall be subtracted from the total Bond
principal that remains outstanding, and the difference shall be used as the amount of
Outstanding Bonds for purposes of this prepayment formula.
"Previously Issued Bonds" means all Bonds that have been issued on behalf of the CFD
prior to the date of prepayment.
"Public Facilities Requirements" means either $9,850,000 in 2003 dollars, which shall
increase on January 1, 2004, and on each January 1 thereafter by the percentage increase, if
any, in the construction cost index for the San Francisco region for the prior twelve (12)
month period as published in the Engineering News Record or other comparable source if the
Engineering News Record is discontinued or otherwise not available, or such lower number
as shall be determined by the TDPUD as sufficient to fund improvements that are authorized
to be funded by the CFD. The Public Facilities Requirements shown above may be adjusted
or a separate Public Facilities Requirements identified each time property annexes into CFD
No. 03-1; at no time shall the added Public Facilities Requirement for that annexation area
exceed the amount of public improvement costs that are expected to be supportable by the
Maximum Special Tax revenues generated within that annexation area.
"Remaining Facilities Costs" means the Public Facilities Requirements (as defined above),
mimis public facility costs funded by Outstanding Bonds (as defined above), developer
equity, and/or any other source of ftmding.
A-9
DOCSOCA9950370A22925.0009
The Special Tax obligation applicable to an Assessor's Parcel in the CFD may be prepaid and
the obligation of the Assessor's Parcel to pay the Special Tax permanently satisfied as
described herein, provided that a prepayment may be made only if there are no delinquent
Special Taxes with respect to such Assessors Parcel at the time of prepayment. An owner of
an Assessor's Parcel intending to prepay the Special Tax obligation shall provide the TDPUD
with written notice of intent to prepay. Within 30 days of receipt of such written notice, the
TDPUD or its designee shall notify such owner of the prepayment amount for such
Assessor's Parcel. Prepayment must be made not Less than 75 days prior to any redemption
date for Bonds to be redeemed with the proceeds of such prepaid Special Taxes. The
Prepayment Amount shall be calculated as follows: (capitalized terms as defined below):
Bond Redemption Amount
plus Remaining Facilities Amount
plus Redemption Premium
plus Defeasance Requirement
plus Administrative Fees and Expenses
less Reserve Fund Credit
equals Prepayment Amount
As of the proposed date of prepayment, the Prepayment Amount shall be determined by application
of the following steps:
Step 1. Compute the total Maximum Special Tax that could be collected from the
Assessor's Parcel prepaying the Special Tax in the Fiscal Year in which
prepayment would be received by the TDPUD or, in the event of a
prepayment pursuant to Step 3.b in Section D, compute the amount by which
the Maximum Special Tax revenues would be reduced by the Land
Use/Entitlement Change and use the amount of this reduction as the figure for
purposes of this Step 1.
Step 2. Divide the Maximum Special Tax from Step 1 by the then-current Expected
Maximum Special Tax Revenues for the CFD.
Step 3. Multiply the quotient computed pursuant to Step 2 by the Outstanding Bonds
to compute the amount of Outstanding Bonds to be retired and prepaid (the
"Bond Redemption Amount'.
Step 4. Compute the current Remaining Facilities Costs (if any).
Step 5. Multiply the quotient computed pursuant to Step 2 by the amount determined
pursuant to Step 4 to compute the amount of Remaining Facilities Costs to be
prepaid (the "Remaining Facilities Amount").
Step 6. Multiply the Bond Redemption Amount computed pursuant to Step 3 by the
applicable redemption premium, if any, on the Outstanding Bonds to be
redeemed (the "Redemption Premium").
A-10
DOCSOC,99503703 22925,0009
Step 7. Compute the amount needed to pay interest on the Bond Redemption Amount
starting with the first Bond interest payment date after which the prepayment
has been received until the earliest redemption date for the Outstanding
Bonds, which, depending on the Bond offering document, may be as early as
the next interest payment date.
Step S: Compute the amount of interest the TDPUD reasonably expects to derive
from reinvestment of the Bond Redemption Amount plus the Redemption
Premium from the first Bond interest payment date after which the
prepayment has been received until the redemption date for the Outstanding
Bonds.
Step 9: Take the amount computed pursuant to Step 7 and subtract the amount
computed pursuant to Step 8 (the"Defeasance Requirement").
Step 10. Determine the costs of computing the prepayment amount, the costs of
redeeming Bonds, and the costs of recording any notices to evidence the
prepayment and the redemption(the "Administrative Fees and Expenses").
Step It. If and to the extent so provided in the indenture pursuant to which the
Outstanding Bonds to be redeemed were issued, a reserve fund credit shall be
calculated as a reduction in the applicable reserve fund for the Outstanding
Bonds to be redeemed pursuant to the prepayment (the "Reserve Fund
Credit").
Step 12. The Special Tax prepayment is equal to the sum of the amounts computed
pursuant to Steps 3, 5, 6, 9, and 10, less the amount computed pursuant to
Step 11 (the"Prepayment Amount").
A partial prepayment may be made in an amount equal to any percentage of full prepayment desired
by the party making a partial prepayment. The Maximum Special Tax that can be levied on an
Assessor's Parcel after a partial prepayment is made is equal to the Maximum Special Tax that could
have been levied prior to the prepayment, reduced by the percentage of a full prepayment that the
partial prepayment represents, all as determined by or at the direction of the Administrator.
I. INTERPRETATION OF SPECIAL TAX FORMULA
The TDPUD reserves the right to make minor administrative and technical changes to this document
that do not materially affect the rate and method of apportioning Special Taxes. In addition, the
interpretation and application of any section of this document shall be left to the TDPUD's
discretion. Interpretations may be made by the TDPUD by ordinance or resolution for purposes of
clarifying any vagueness or ambiguity in this Rate and Method of Apportionment of Special Tax.
A-11
DOCSOCA9950370M925.0009
ATTACHMENT 1
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
COMMUNITY FACILITIES DISTRICT NO. 03-1
(OLD GREENWOOD)
EXPECTED LAND USES AND
EXPECTED MAXIMUM SPECIAL TAX REVENUES
AT CFD FORMATION
Number of Maximum Special Tax Total Expected
Expected Per UnitlAcre for Maximum Special Tax
Expected Land Uses Units/Acres Fiscal Year 2004-05 Revenues
Single Family Detached
Property and Single Family 104 Units $3,000 per SFD Lot $ 312,000
Attached Property in Zone 1
Single Family Detached
Property and Single Family 154 Units $3,400 per SFD Lot 523,600
Attached Property in Zone 2
Taxable Other Proj2erty 0 Acres N/A 0
Total Ex ected Maximum S ecial Tax Revenues $ 835,600
*Figures are shown in fiscal year 2004-05 dollars and will escalate two percent(2%)per year thereafter.
A-12
DOCSOC9950370122925,0009
ATTACHMENT 2
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
COMMUNITY FACILITIES DISTRICT NO. 03-1
(OLD GREENWOOD)
IDENTIFICATION OF TAX ZONES
A-13
DOCSOCV9 9503h3t32925.0009
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BALLOT PROPOSITION
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TRUCKEE DONNER PUBLIC UTILITY DISTRICT
COMMUNITY FACILITIES DISTRICT NO. 03-1 (OLD GREENWOOD)
SPECIAL ELECTION
MEASURE SUBMITTED TO VOTE OF VOTERS: Shall Truckee
Donner Public Utility District Community Facilities District
No. 03-1 (Old Greenwood) (the "Community Facilities District')
incur an indebtedness and issue bonds in the maximum aggregate
principal amount of$15,000,000, with interest at a rate or rates not
to exceed the maximum interest rate permitted by law, the proceeds
of which will be used to finance the costs of planning, designing,
constructing, acquiring, modifying, expanding, improving,
furnishing, equipping or rehabilitating certain real and other tangible
property with an estimated useful life of five years or longer,
consisting of certain street, water and sewer system and
appurtenances and appurtenant work (collectively, the "Facilities")
and to finance the incidental expenses associated therewith (the YES
"Incidental Expenses"), all as further provided in the resolution of NO
the Board of Directors of the Truckee Donner Public Utility District
establishing the Community Facilities District (the "Resolution of
Formation'), and shall a special tax with a rate and method of
apportionment as provided in the Resolution of Formation be
authorized to be levied, and shall the annual appropriations limit of
Community Facilities District No. 03-1 (Old Greenwood) be
established in the amount of$15,000,0009
s-1
DOCSOC995037v3L2925.0009