HomeMy WebLinkAboutRES 21-45 RESOLUTION NO. 21-45
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY
OF AAC E JUNCTION, ARIZO A, DECLARING ITS INTENT TO
FORM A COMMUNITY FACILITIES DISTRICT; ORDERING AND
DECLARING FORMATION OF THE TAX LEVYING SUPERSTITION
VISTAS COMMUNITY FACILITIES DISTRICT NO. 1® AND
APPROVING THE DISTRICT DEVELOPMENT, FINANCING
PARTICIPATION, WAIVER AND INTERGOVERNMENTAL AGREEMENT
FOR SUCH DISTRICT
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL
OF THE CITY OF APACHE JUNCTION, ARZO A, AS FOLLOWS ®
SECTION I FINDINGS
The mayor and city council hereby make the following findings :
A. Prior to the adoption hereof, there was presented to the
mayor and city council of the City of Apache Junction, Arizona
(hereinafter referred to as the "City") , a petition for formation
and petition for adoption of a resolution ordering and declaring
formation of Superstition Vistas Community Facilities District No.
1, submitted and effective as of September 9, 2021 (the
"Petition") , signed by the entities which, on the date of the
Petition and on the date hereof, are the owners of all real
property as shown on the assessment roll for state and county taxes
for Pinal County, Arizona, or, if such persons shown on such
assessment roll are no longer the owners of land in the proposed
District (as defined herein) , are the entities which are the
successor owners which have become known and have been verified by
recorded deed or similar evidence of transfer of ownership to be
the owners of such real property (collectively, the "Petitioner")
described in the Petition by metes and bounds to be in the
community facilities district, the formation of which is requested
by the Petitioner in the Petition, pursuant to Title 4 , Chapter
, Article 6, Arizona Revised Statutes, as amended (the "Act") .
The proposed district shall be referred to herein as the
"District".
B. Prior to the adoption hereof and in accordance with
A.R.S. § 5-702 subsections ( ) and (D) , there was presented to
the mayor and city council of the City by the Petitioner a
completed application (the "Application®`) for formation of the
District, which includes the information required pursuant to the
Act and the City' s Policy Guidelines and Application Procedures
for the Establishment of Community Facilities Districts .
RESOLUTION NO. 21-4
PAGE 1 OF
C. The Petitioner has represented, attested and declared
the following®
1 . The name of the District is requested pursuant to
the Petition to be "Superstition Vistas Community Facilities
District No. 1";
2 . The District is to be formed, and will exist,
pursuant to the terms and provisions of the Act;
3 . The District is to contain an area of approximately
1, 375 acres of land, more or less, wholly within the corporate
boundaries of the City, and is to be comprised of the land
described by metes and bounds as provided in Exhibit A hereto,
which is made a part hereof for all purposes (hereinafter referred
to as the "Property") ;
4 . The District is to be a special purpose district for
purposes of Article IX, Section 19, Constitution of Arizona, a tax
levying public improvement district for the purposes of Article
XIII, Section 7, Constitution of Arizona, and a municipal
corporation for all purposes of Title 35, Chapter 3, Articles 3,
3 . 1, 3 .2, 4 and 5, Arizona Revised Statutes, as amended; except as
otherwise provided in the Act, and is to be considered a municipal
corporation and political subdivision of the State of Arizona
separate and apart from the City; and is to be formed for, and
have, all the purposes and powers of a "district" as such term is
defined, and as provided, in the Act; and
5 . Public convenience and necessity require the
adoption of this resolution forming the District.
D. Petitioner further represented, attested and declared
that on the date thereof and hereof, as shown on the assessment
roll for state and county taxes in Pinal County, Arizona, all of
the land to be in the District is owned by Petitioner or, if a
person listed on such assessment roll is no longer the owner of
the land in the District, that the name of the successor owner has
become known and verified by recorded deed or similar evidence of
transfer of ownership to Petitioner and that the land to be
included in the District shall be benefited from the improvements
for which the District is proposed to be formed and that there are
no qualified electors residing on the land to be in the District.
E. After representing, attesting and declaring the
preceding, the Petitioner requested that the Petition be properly
filed as provided by law and that, as the Petition is signed by
RESOLUTION NO. 21-45
PAGE 2 OF 6
the owners of all the land to be in the District, any requirements
of posting, publication, mailing, notice, hearing and landowner
election otherwise required by the Act in connection with the
formation of the District and adoption hereof be waived, and that
the City, upon receipt of the Petition, declare its intention to
form the District and thereafter for the District without being
required to comply with such provisions for posting, publication,
mailing, notice, hearing or landowner election.
F. The substantially final for of a District Development,
Financing Participation, Waiver and Intergovernmental Agreement,
as may be amended and supplemented from time to time, (the
"Development Agreement") has been presented to the mayor and city
council, and it is now in order for the City to approve such
Development Agreement and authorize the execution of the
Development Agreement.
SECTION II AGREEMENTS AND FURTHER FINDINGS BY THE CITY
The mayor and city council hereby agree to and find the following:
A. Petitioner seeks formation of the District to exercise
the powers and functions set forth in the Act.
B. The General Plan (as defined hereafter) has been filed
with the Clerk of the City.
C. The Petition, and all necessary supporting materials,
meets the requirements of A.R. S. § 48-707 subsections (F) and (G) ,
and has been filed with the clerk of the City, and the showings in
the Petition are each noticed by the mayor and city council and
are hereby incorporated at this place as if set forth in whole.
D. The Application, and all necessary supporting materials,
meets the requirements of A.R. S. § 48-702 subsections (B) and (D) ,
and has been filed with the clerk of the City.
E. The purposes for which the organization of the District
is sought are as described in the Petition, Application and General
Plan and are purposes for which a community facilities district
created pursuant to the Act may be lawfully formed.
F. The District is to be wholly comprised of the Property
and the Property is wholly within the boundaries of the City.
RESOLUTION NO. 21-45
PAGE 3 OF 6
G. The Property is benefited by the District and the public
infrastructure and the public infrastructure purposes set forth in
the General Plan.
H. Pursuant to A.R. S. § 48-707 subsections (F) and (G) , no
hearing on the formation of the District will be held.
I . Petitioner is the owner of all of the Property and no
qualified electors reside on the Property.
J. Petitioner intends to split certain parcels partially
within the proposed boundaries of the District in order to comply
with A.R. S. § 48-272 et seq.
K. The public convenience and necessity require the
adoption hereof.
SECTION III APPROVAL OF THE GENERAL PLAN
Prior to the adoption hereof, a "General Plan for the Proposed
Superstition Vistas Community Facilities District No. 1" for the
District was filed with the clerk of the City setting out a general
description of the improvements for which the District is proposed
to be formed and the general areas to be improved and benefited
(hereinafter referred to as the "General Plan") The General Plan
is hereby approved in all respects .
SECTION IV APPROVAL OF THE DEVELOPMENT AGREEMENT
The Development Agreement by and among the City, the District and
the owners of the property within the District, in substantially
the form as presented to the City and as represented in Exhibit C,
is hereby approved. The mayor is authorized and directed to
execute and deliver, and the clerk is authorized and directed to
attest, the Development Agreement with such necessary and
appropriate omissions, insertions and variations as are permitted
or required hereby and are approved by the officers executing the
Development Agreement on behalf of the City. Execution of the
Development Agreement by the mayor, and attestation by the clerk,
shall be conclusive evidence of such approval .
SECTION V INTENTION TO FORM THE DISTRICT
The mayor and city council hereby declares, pursuant to the Act,
its intention to form the District comprised of the Property as a
community facilities district, pursuant to the terms and
provisions of, and with the powers and authority established by,
RESOLUTION NO. 21-45
PAGE 4 OF 6
the Act, with jurisdiction over the Property. Based on the
Petition and the findings set forth herein, all requirements of
posting, publication, mailing, notice, hearing and landowner
election otherwise required by the Act in connection with the
formation of the District and adoption hereof are waived.
SECTION VI GRANTING OF PETITION; FORMATION OF DISTRICT
The Petition is hereby granted, and the District is hereby formed
as a community facilities district pursuant to the terms and
provisions of, and with the powers and authority established by,
the Act, with jurisdiction over the Property. The mayor and city
council hereby determine October 14, 2021 to be the scheduled
election date to submit the question of formation of the District
to the qualified electors, if any, who reside within the boundaries
of the District. As of September 2, 2021, which is a date within
50 days immediately preceding such scheduled election date, there
are no resident electors or qualified electors residing on the
Property, therefore, the submission of the formation of the
District to an election of resident electors is hereby found to be
unnecessary and no formation election will be held. Promptly after
formation of the District, Petitioner shall take necessary steps,
if any, to comply with A.R.S . § 48-272 et seq. and other
requirements of the assessor of Pinal County, Arizona.
SECTION VII LEVY OF TAXES
Formation of the District may result in the levy of taxes by the
District on all taxable property located within the District to
pay the costs of improvements constructed by the District and the
administration of the District and for their operation and
maintenance and the administration of the District.
SECTION VIII DISTRICT BOARD AND OFFICERS
The District shall be governed by a "District Board" comprised of
the members of the governing body of the City, ex officio. Sherman
& Howard L.L.C. may serve as special counsel and bond counsel for
both the City and the District, and the City hereby waives any
conflict of interest that may exist now or in the future as a
result of such dual representation.
SECTION IX DISTRICT BOUNDARIES AND MAP
The District boundaries are set to be as described in metes and
bounds in Exhibit A hereto. The map showing the District
boundaries is set forth in Exhibit B hereto and is hereby approved.
RESOLUTION NO. 21-45
PAGE 5 OF 6
SECTION X DISSEMINATION OF THIS RESOLUTION
The clerk shall cause a copy of this resolution to be delivered to
the county assessor and the board of supervisors of Pinal County,
Arizona, and to the Department of Revenue of the State of Arizona.
The clerk shall cause a notice of the formation of the District to
be recorded with the county recorder of Pinal County, Arizona.
SECTION XI NO GENERAL LIABILITY OF OR FOR THE CITY
Neither the general fund or any other fund or moneys of the City,
nor that of the State of Arizona or any political subdivision of
either (other than the District) shall be liable for the payment
or repayment of any obligation, liability, bond or indebtedness of
the District, and neither the credit nor the taxing power of the
City, the State of Arizona or any political subdivision of either
(other than the District) shall be pledged therefor.
PASSED AND ADOPTED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF
APACHE JUNCTION, ARIZONA, THIS ,�' DAY OF 2021 .
SIGNED AND ATTESTED TO THIS L OF-- DAY
2021 .
WALTER CHIP®`
Mayor
ATTEST:
PJE N�TF�ERENA
jtv C
ity C lerk
APPROVED AS TO FORM:
RICHARD JOEL STERN
City Attorney
RESOLUTION NO. 21® 5
PAGE 6 OF 6
EXHIBIT A
LEGAL DESCRIPTION OF
SUPERSTITION VISTAS COMMUNITY FACILITIES DISTRICT NO. 1
RESOLUTION NO. 21- 5 _
EXHIBIT A
Wood, Patel &Associates, Inc. Revised March 9, 2021
480.834.3300 January 8, 2021
www.woodpatel.com WP#205166.01
Page 1 of 4
See Exhibit"A"
LEGAL DESCRIPTION
Superstition Vistas
D.R. Horton Parcel
General Land Office (GLO) Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, a portion of GLO Lot 12 and a
portion of the east half of Section 18 and GLO Lots 3,4, 5,6, 7, 8, 9, 10, 11, 12, a portion of GLO
Lots 1 and 2 and a portion of the east half of Section 19, and a portion of the north half of Section
30,Township 1 South, Range 8 East, of the Gila and Salt River Meridian, Pinal County,Arizona,
more particularly described as follows:
BEGINNING at the northeast corner of said Section 18, a 3-inch Pinal County brass cap in
handhole,from which the east quarter corner of said Section 18, a 3-inch Pinal County brass cap
in handhole, bears South 00013'51" East(basis of bearing), a distance of 2639,88 feet;
THENCE along the east line of said Section 18,South 00*13'51" East,a distance of 2639.88 feet,
to said east quarter corner;
THENCE South 00*17'10" East, a distance of 155.64 feet, to the northerly line of that certain
Maricopa County Flood Control District Easement, recorded in Document 2011-062136, Pinal
County Records (PCR)-,
THENCE leaving said east line, along said northerly line, South 53*29'26" West, a distance of
4200.33 feet, to the south line of said Section 18;
THENCE leaving said south line, South 53*29'13"West, a distance of 910.07 feet,
THENCE leaving said northerly line, South 82*28'36" East, a distance of 583.29 feet, to the
beginning of a curve;
THENCE easterly along said curve to the left, having a radius of 3000.00 feet, concave northerly,
through a central angle of 30*39'58", a distance of 1605.68 feet,to the curves end;
THENCE North 66*51'25" East, a distance of 540.51 feet, to the beginning of a curve;
THENCE easterly along said curve to the right, having a radius of 2500.00 feet, concave
southerly,through a central angle of 22*55'06",a distance of 1000.00 feet,to the north line of said
Section 19 and the curves end;
THE along said north line, North 89*46'31" East, a distance of 500.00 feet, to the northeast
corner of said Section 19;
THENCE leaving said north line, along the east line of said Section 19, South 00'17'35" East, a
distance of 2641.12 feet, to the east quarter corner of said Section 19;
THENCE South 00'17'01"East,a distance of 2640.28 feet,to the southeast corner of said Section
19;
THE leaving said east line, along the south line of said Section 19, South 89*44'56"West, a
distance of 702.14 feet, to the beginning of a curve;
THENCE leaving said south line,westerly along said curve to the left,having a radius of 10000.00
feet, concave southerly, through a central angle of 11*1639", a distance of 1968.29 feet, to the
beginning of a reverse curve;
RESOLUTION NO. 21-45
EXHIBIT A
Legal Description Revised March 9, 2021
Superstition Vistas January 8, 2021
D.R. Horton Parcel WP#205166.01
Page 2 of 4
See Exhibit"N'
THENCE westerly along said reverse curve to the right,having a radius of 10000.00 feet,concave
northerly,through a central angle of 11*56'03",a distance of 2082.89 feet,to the curves end;
THENCE North 89*35'40"West, a distance of 1421.78 feet, to the southeast corner of Section
24,Township 1 South, Range 7 East,of the Gila and Salt River Meridian;
THENCE along the east line of said Section 24,North 00*38'07"West,a distance of 2635.59 feet,
to the east quarter comer of said Section 24;
THENCE North 00*37'44"West, a distance of 2633.61 feet, to the southeast comer of Section
13,Township 1 South, Range 7 East,of the Gila and Salt River Meridian;
THENCE leaving said east line, along the east line of said Section 13, North 00*39'46"West, a
distance of 2637.45 feet,to the east quarter comer of said Section 13;
THENCE North 00'37'58"West, a distance of 2637.66 feet, to the southeast corner of Section
12,Township 1 South, Range 7 East,of the Gila and Salt River Meridian;
THENCE leaving said east line, along the east line of said Section 12, North 00*39'09"West, a
distance of 75.01 feet;
THENCE leaving said east line, South 89'37'08" East, a distance of 1403.26 feet, to a point of
intersection with a non-tangent curve;
THENCE southerly along said non-tangent curve to the left, having a radius of 1057.78 feet,
concave easterly,whose radius bears South 87035'14"East,through a central angle of 04*03'48",
a distance of 75.02 feet,to a point of intersection with a non-tangent curve;
THENCE easterly along said non-tangent curve to the left, having a radius of 10000.00 feet,
concave northerly,whose radius bears North 00*22'43"East,through a central angle of 12'09'59",
a distance of 2123.45 feet,to the beginning of a reverse curve;
THENCE easterly along said reverse curve to the right,having a radius of 10000.00 feet,concave
southerly,through a central angle of 11*33'02",a distance of 2015.94 feet,to the north line of said
Section 18 and the curves end;
THENCE along said north line, North 89'45'45"East,a distance of 703.03 feet,to the POINT OF
BEGINNING.
Containing 59,882,032 square feet or 1,374.7023 acres, more or less.
Subject to existing right-of-ways and easements.
This parcel description is based on client provided information and is located within an area
surveyed by Wood, Patel & Associates, Inc. during the month of December, 2020. Any
monumentation noted in this parcel description is within acceptable tolerance (as defined in
Arizona Boundary Survey Minimum Standards dated 02/14/2002)of said positions based on said
survey. tiQ LAN
YAWPParcel DBSOPUOMMW205160 01 9Vairstitim Vistas OR Hcdm Parcel LOIRD 103-09-21 docx
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EXPI 09-30-23
RESOLUTION NO. 21-45
EXHIBIT A
NORTHEAST CORNER
SECTION 18,T1 S,R8E
ELLIOT ROAD 3"PINAL COUNTY BCH
C5 G7 L18 POB
L16 L17— C6_
LOT 3 LOT 2+ LOT 1 r
SEC 18
T1S,R8E
LOT LOT LOT
4
L217 SEC 17
LOT LOT 8` LOT 7 T1 S,R8
EAST 1/4 CORNER
SECTION 18,T1S,R8E
®, LOT LOT 11 LOT 12 . + �gp/ 3"PINAL COUNTY BCH
10 L4 G2 L7 OOqARNER
L5 G� 4 00
LOT °° ,.
3 LOT 2 LOT 1
00 0 <s O
r> D
Q
LOT LOT 5 LOT 6 ,' O
s SEC 19
'-' T1 S,R8E 0 SEC 20 �O<�
'LOT 11",
9 LOT 8 LOT 7 T1S,R8E �cPJ�
LOT LOT 11 LOT 12
10
L11 C4 C3 L10 RAY ROAD
LD
limb �4®��gCiF%CMZg
23 �& "All
`' SUPERSTITION VISTAS
rn
, D.R.HORTON PARCEL
®` L 03/ 9/2021
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23 Z:\2020\205166\SurveylLegal\5166-LO1 R01. w
RESOLUTION NO® 21-4
EXHIBIT
LINE TABLE CURVE TABLE
LINE BEARING DISTANCE CURVE DELTA RADIUS � ARC
Ll S00*13'51"E 2639M' Cl 30'39'58" 3000.00' 1605,68'
L2 SOO*17'10"E 155.64' C2 22*55'06" 2500.00' 1000,00'
L3 S53*29'26"W 4200,33' C3 11*16'39" 10000.00' 1968.29'
L4 S53*29'13"W 9MOT C4 11*56'03" 10000,00' 2082,89'
L5 S82*28'36"E 58329' C5 4'03'48" 105738' 75.02'
L6 N66'51'25"E 540.51' C6 12'09'59" 10000.00, 212145'
I
L7 N89'46'31"E 500,00' C7 11'33'02" 10000,00' 2015.94'
L8 SOO'l TWE 2641.12'
L9 S00'17'01"E 2640.28'
L10 S89'44'56"W 702.14'
Lll N89035'40"W 1421,78'
L12 N00'38'07"W 2635.59'
L13 NOO*37'44"W 2633,61'
L14 NOO*39'46"W 263T45'
L15 N00*37'58"W 2637,66'
L16 N00*39'09"W 7MV
L17 S89*37'08"E 140126'
L18 N89045'45"E 70103'
L A/Vj)
tCAr,c
EXHIBIT "All
CO 23945 SUPERSTITION VISTAS
m
BRIAN J. < D.R.HORTON PARCEL
to DIEHL 0
03/09/2021
no WP#205166.01
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RESOLUTION O. 21-45
EXHIBIT A
EXHIBIT B
BOUNDARY MAP OF
SUPERSTITION VISTAS COMMUNITY FACILITIES DISTRICT NO. 1
LLI T AVENUE
CFD NO. I
1,375 ACRES
WARNER
AVENUE
AVENUE
4
0 10 2000
orz, 1 in.=20 0 ft.
RESOLUTION NO. 21-
EXHIBIT
EXHIBIT C
DISTRICT DEVELOPMENT, FINANCING PARTICIPATION, WAIVER
AND INTERGOVERNMENTAL AGREEMENT BY AND AMONG CITY OF APACE
JUNCTION, ARIZONA, SUPERSTITION VISTAS COMMUNITY FACILITIES
DISTRICT NO, 1, AND D.R. HORT N, INC.
RESOLUTION O. 21- 5
EXHI C
When recorded, return to:
Zachary D. Sakas, Esq.
Sherman & Howard L.L.C.
7033 East Greenway Parkway, Suite 250
Scottsdale, AZ 85254-2080
DISTRICT DEVELOPMENT, FINANCING PARTICIPATION, WAIVE';:
AND INTERGOVERNMENTAL AGREEMENT
by and among
CITY OF AACHE JUNCTION, ARIZONA,
SUPERSTITION VISTAS COMMUNITY FACILITIES DISTRICT NO. 1,
and
D.R. HORTON, INC.
Dated as of , 2021
DISTRICT DEVELOPMENT, FINANCING PARTICIPATION,WAIVER AND
INTERGOVERNMENTAL AGREEMENT
ARTICLE I DEFINED TERMS; MISCELLANEOUS MATTERS
RELATING TO USE THEREOF; AND GENERAL
DISTRICT MATTERS.............................................................................3
ARTICLE II CONSTRUCTION OF PROJECTS BY THE
DISTRICT; ACQUISITION OF PLANS AND
SPECIFICATIONS .................................................................................12
ARTICLE III CONSTRUCTION OF ACQUISITION PROJECTS
BY THE DEVELOPER; CERTAIN MATTERS
RELATED TO PLANS AND SPECIFICATIONS AND
CHANGEORDERS................................................................................14
ARTICLE IV ACQUISITION OF ACQUISITION PROJECTS
FROM THE DEVELOPER....................................................................16
ARTICLE V FINANCING OF COSTS OF PROJECTS AND
PLANS AND SPECIFICATIONS..........................................................17
ARTICLE VI MATTERS RELATING TO THE ASSESSMENT
BONDS AND THE GENERAL OBLIGATION BONDS
AND OTHER.OBLIGATIONS OF THE DISTRICT .........................19
ARTICLE VII ACCEPTANCE BY THE MUNICIPALITY AND
REIMBURSEMENT ELIGIBILITY.....................................................23
ARTICLE VIII INDEMNIFICATION AND INSURANCE...........................................24
ARTICLE IX PAYMENT OF CERTAIN EXPENSES AND COSTS........................27
ARTICLE X MISCELLANEOUS................................................................................29
EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY TO BE
INCLUDED IN THE DISTRICT....................................................... A-1
EXHIBIT B DESCRIPTION OF INFRASTRUCTURE........................................ B-1
EXHIBIT C FORM OF CERTIFICATE OF ENGINEERS FOR
CONVEYANCE OF ACQUISITION PROJECT OR
SEGMENT OF PROJECT................................................................. C-1
EXHIBIT D FORM OF CONVEYANCE OF ACQUISITION
PROJECT OR SEGMENT OF PROJECT ...................................... D-1
EXHIBIT E FORM OF DISCLOSURE STATEMENT ........................................ E-1
THIS DISTRICT DEVELOPMENT, FINANCING PARTICIPATION,
WAIVER AND INTERGOVERNMENTAL AGREEMENT, dated as of 9 2021 (this
"Agreement"), by and among the City of Apache Junction, Arizona, an Arizona municipal
corporation (the "Municipality"); Superstition Vistas Community Facilities District No. 1, a
community facilities district formed by the Municipality, and duly organized and validly
existing, pursuant to the laws of the State of Arizona (the "District"); and D.R. Horton, Inc., a
Delaware corporation duly organized and validly existing pursuant to the laws of the State of
Delaware (the "Developer"), which has an interest in certain property within the boundaries of
the District and is an investor, developer, guarantor and indemnitor. The Property (as defined
herein) is land granted to the Arizona State Land Department ("ASLD"), and ASLD has
consented to the recordation of this Agreement on the Property.
RECITALS
A. Pursuant to Title 48, Chapter 4, Article 6, Arizona Revised Statutes, as
amended (the "Act"), and § 9-500.05, Arizona Revised Statutes, as amended ("A.R.S."), the
Municipality, the District and the Developer are entering into this Agreement as a "development
agreement" to specify, among other things, conditions, terms, restrictions and requirements for
"public infrastructure" (as such term is defined in the Act) and the financing of public
infrastructure and subsequent reimbursements or repayments over time.
B. With regard to the real property described in Exhibit A hereto (the
"Property"), which makes up the real property included within the District, the Municipality, the
District and the Developer have determined to specify certain matters in this Agreement relating
to the acquisition, construction, financing, operation and maintenance of public infrastructure,
including matters relating to the construction or acquisition of certain public infrastructure by the
District, the acceptance thereof by the Municipality and the reimbursement or repayment of the
Developer with respect thereto, all pursuant to the Act, such public infrastructure being
necessary for the Developer to develop the Property prior to the time at which the District can
itself pay for the construction or acquisition thereof.
C. On November 4, 2020, the Developer was the successful bidder at a public
auction conducted by ASLD and is thereby entitled to purchase the Property from ASLD
pursuant to the terms of Certificate of Purchase No. 53-120190 (the "Certificate of Purchase")
and subject to the terms of the Participation and Infrastructure Contract Regarding ASLD Sale
No. 53-120190, executed on November 12, 2020 between ASLD and the Developer (the
"Participation Contract"), with the express condition that the Developer entitle and develop the
Property as a mixed-use master planned community.
D. Pursuant to the Participation Contract, the Property is a component of the
Auction Property(as defined in the Participation Contract).
E. Pursuant to the Participation Contract, the Developer is required to
acquire, construct and improve certain infrastructure benefitting the Property, and ASLD has
certain consent and approval rights regarding the Developer's development of the Property
including the formation of the District.
F. This Agreement as a "development agreement" pursuant to A.R.S. § 9-
500.05 is consistent with the "General Plan" of the Municipality, as defined in A.R.S. § 9-461,
applicable to the Property on the date this Agreement is executed.
G. To perform and finance certain "public infrastructure purposes" (as such
term is defined in the Act) the District Board (as defined herein) is expected to call an election to
be held in and for the District, pursuant to the Act, to authorize the District Board to: (i) in its
sole discretion, issue certain general obligation bonds of the District, in the amount of four
hundred million dollars ($400,000,000.00), provided however, the Developer shall not request
the issuance of more than three hundred fifty million dollars ($350,000,000.00), to provide
monies for certain "public infrastructure purposes" described in the General Plan of the District
approved by the Municipality and the District (the "General Obligation Bonds") and to annually
levy, assess and collect an ad valorem tax against all taxable property in the District,unlimited as
to rate or amount therefor, to pay debt service on the General Obligation Bonds; and (ii) annually
levy, assess and collect an ad valorem tax in an amount up to $0.30 (or such higher amount
approved at an election in accordance with the Act) per $100.00 of net assessed limited property
valuation against all taxable property in the District (the "OlM TcLe') to provide for amounts to
pay the administrative, operation and maintenance expenses of the District.
H. The District Board, pursuant to the Act and the procedures prescribed by
A.R.S. §§ 48-576 through 48-589, as nearly as practicable, or such other procedures as the
District board provides, may in its sole discretion levy assessments of the costs of any public
infrastructure purpose on any land in the District based on the benefit determined by the District
Board to be received by such land (the"Assessments").
I. If the District Board, in its sole discretion, adopts a resolution levying a
special assessment on property in the District, pursuant to the Act, special assessment bonds of
the District (the "Assessment Bonds") may be issued and sold to provide monies for certain
"public infrastructure purposes"described in the General Plan of the District.
J. This Agreement, together with the Land Development Agreement and the
CFD Guidelines (each as defined herein) shall set forth some parameters and conditions
pertaining to the use of the proceeds of any General Obligation Bonds, Assessment Bonds and
amounts which will be collected with respect to the O/M Tax in the future.
K. Pursuant to the Act and the Land Development Agreement, the District is
entering into this Agreement with the Developer with respect to, among other things, the
expenditure of monies for public infrastructure purposes by the Developer and, if the District, in
its sole discretion, sells General Obligation Bonds or Assessment Bonds, the reimbursement of
all or part of such expenditures, and the security for, and disbursement and investment of
proceeds of, the General Obligation Bonds and the Assessment Bonds.
L. The Municipality has adopted Policy Guidelines and Application
Procedures for the Establishment of Community Facility Districts (the "CFD Guidelines") in
Resolution No. 21-05, as thereafter amended and adopted by the Municipality in Resolution No.
21--, to establish certain requirements and procedures applicable to all community facility
2
districts within the Municipality, including the District except as otherwise provided in this
Agreement.
M. Pursuant to the Act and A.R.S. Title 11, Chapter 7, Article 3, the District
and the Municipality are entering into the specified sections of this Agreement as an
"intergovernmental agreement" with one another for joint or cooperative action for services and
to jointly exercise any powers common to them and for the purposes of the planning, design,
inspection, ownership, control, maintenance, operation or repair of "public infrastructure,"
including particularly to provide for the acceptance by the Municipality and other governmental
entities of certain public infrastructure constructed or acquired by the District.
N. The District has entered into the IGA (as defined herein) with vvruCFD,
SMCFD (each as defined herein) and Superstition Vistas Community Facilities District No. 2
pursuant to Resolution No. of the District Board pertaining to, among other things, public
infrastructure to be financed by the District.
O. Nothing contained in this Agreement is intended to limit the District
Board in exercising its sole discretion at any time with respect to the approval or rejection of a
feasibility report or the issuance of General Obligations Bonds or Assessment Bonds.
AGREEMENT
NOW, THEREFORE, in the joint and mutual exercise of their powers, in
consideration of the above premises and of the mutual covenants herein contained and for other
valuable consideration, and subject to the conditions set forth herein, the parties hereto agree
that:
ARTICLE I
DEFINED TERMS; MISCELLANEOUS
MATTERS RELATING TO USE THEREOF; AND GENERAL DISTRICT MATTERS
Section 1.1. (a) For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires, the terms defined in this Section
have the meanings assigned to them in this Section and include, as appropriate, the plural as well
as the singular:
"Acquisition Project" means each Project constructed by the Developer pursuant
to a Construction Contract and which the Developer intends to preserve the ability to finance
with the proceeds of District Bonds, and excludes Infrastructure that is a Construction Project
approved by the District Board as described in Section 2.1.
"Act"means A.R.S. Title 48, Chapter 4, Article 6, as amended.
"Agreement" means this District Development, Financing Participation, Waiver
and Intergovernmental Agreement, dated as of_, 2021, by and among the Municipality, the
District and the Developer.
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"ASLD"means the Arizona State Land Department.
"Assessed Property" means all or a portion of the real property within the District
subject to, from time to time, an Assessment.
"Assessment Bonds" means any series of special assessment bonds of the District
authorized to be sold and issued by the District as described in this Agreement and the Act,
payable from amounts collected from Assessments.
"Assessment Diagram" means the assessment diagram to be prepared by the
District Engineer and the superintendent of streets (as described in A.R.S. § 48-589 and
incorporated by reference in the Act pursuant to A.R.S. § 48-721.A.) showing the parcels and
lots subject to Assessments.
"Assessment District" means the Assessed Property described in the Assessment
Diagram which is benefited by the Work upon which Assessments will be levied.
"Assessments" means, as to be originally levied and as thereafter reallocated as
described herein, the "not to exceed" proportionate share of costs and expenses of the Work
levied against each parcel or lot of the Assessed Property pursuant to A.R.S. Title 48, Chapter 4,
Article 6.
"Auction Property"has the meaning ascribed in the Participation Contract.
"Bonds" means, as applicable, any Assessment Bonds or any General Obligation
Bonds issued by the District.
"Certificate of Purchase" means Certificate of Purchase No. 53-120190, pursuant
to which the Developer is entitled to purchase the Property from ASLD.
"Certificate of the Engineers"means a certificate of the Developer's Engineer and
the District Engineer in substantially the form of Exhibit C hereto.
"Community Plan" means the Master Planned Community Zoning Ordinance and
Development Plan for the Auction Property adopted by the Municipality on October 5, 2021, as
Ordinance No. , together with any amendment thereto approved by the Municipality in
the manner required by Community Plan and City Code.
"Construction Contract"means a construction or acquisition contract for a Project
procured and awarded pursuant to the Public Bid Requirements.
"Construction Cost" means an amount equal to the sum of the amounts paid by
the Developer or the District for: (1) the cost of any Plans and Specifications which have been
approved pursuant to Section 2.6 of this Agreement and comply with Section 5.3 (including the
costs of the review of such design by the District Engineer); (2) construction of the Project
pursuant to the Construction Contract for such Project (such amount to be equal to the contract
amount plus any increases to such contract amount approved as described in Section 3.5 less any
change orders decreasing the contract amount); (3) independent third party inspection and
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supervision of performance under such Construction Contract; and (4) other miscellaneous or
incidental costs for such Project attributable to construction of the Project approved by the
District Engineer and as certified in the Certificate of the Engineers for that Project.
"Construction Project" means each Project which is a part of Infrastructure
constructed by the District as described in Section 2.1.
"Conveyance" means a conveyance for a Segment in substantially the form of
Exhibit D hereto.
"days"means Justinian calendar twenty-four hour periods.
"Developer"means D.R. Horton, Inc., a Delaware corporation.
"Developer's Engineer" means any firm of professional engineers procured using
Public Procurement Requirements and hired by the Developer after approval thereof by the
District Manager to perform the services required therefrom for the purposes hereof.
"Disclosure Statement" means the disclosure statement substantially in the form
of Exhibit E hereto or such other form agreed to by the Developer and the Municipality.
"District" means Superstition Vistas Community Facilities District No. 1, a
community facilities district formed by the Municipality, and organized and existing, pursuant to
the laws of the State.
"District Board'means the board of directors for the District.
"District Budget" means the annual budget of the District adopted by the District
Board for each Fiscal Year.
"District Consulting Costs" means the costs and expenses incurred by the District
as described in Section 1.3 of this Agreement.
"District Engineer" means such engineer as is appointed or designated, from time
to time, on behalf of the District by the District Manager.
"District Expenses" means the expenses and costs of the operation and
administration of the District including, without limitation, the expenses and costs billed to the
District by the Municipality for services relating directly or indirectly to the District, including
but not limited to: overhead incurred by the Municipality in providing services to the District and
the operation and maintenance of the District's website including searchable electronic records
database pursuant to A.R.S. § 48-727; the expenses and costs of administering and operating the
District, including the District Consulting Costs, District Insurance Expense and the costs, time
and expenses of staff and overhead incurred by the District; the costs of issuance and
administration of Bonds not paid with the proceeds of Bonds; and Initial Expenses not paid
pursuant to Section 9.3 of this Agreement.
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"District Indemnified Party" means the Municipality and each council member,
director, trustee,member, officer, official, agent or employee thereof or of the District.
"District Insurance Expense"means the annual or semi-annual premium costs and
expenses incurred in obtaining a policy or policies of insurance in the form and coverage
amounts described in Section 8.3(a) or as otherwise determined by the District Manager
exercising his or her sole and absolute discretion, providing for commercial general liability
coverage for, from and against the Municipality and the District, its directors, officers, agents
and employees against any losses, claims, damages or liabilities, directly or indirectly, arising
from or related to activities or administration of the District, including but not limited to, any
losses, claims, damages or liabilities related to the offer and sale of the Bonds. District Insurance
Expense also includes, to the extent necessary as a result of application to claims under such
insurance, amounts to pay the deductible described in Section 8.3(a).
"District Manager" means the City Manager, or designee, serving independently
from the Municipality as the manager of the District.
"Engineers"means, collectively, the Developer's Engineer(as applicable) and the
District Engineer.
"Estimate" means the estimate of the Financeable Amount indicated in the
Report.
"Financeable Amount" means, with regard to any Project, the total of amounts
necessary to pay: (1)the total of all Construction Costs or Segment Prices due pursuant to
Construction Contracts for any such Project; and (2) (i) all other amounts indicated in this
Agreement (including the cost of Plans and Specifications); (ii) all relevant issuance costs related
to any Bonds; (iii) capitalized interest for a period not in excess of that permitted by the Act and
federal law; and (iv) if requested by the Developer and approved by the District Board, in its sole
discretion, an amount necessary to fund a debt service reserve fund in an amount not in excess of
that permitted by the Act and federal law as described elsewhere herein.
"Fiscal Year" means the twelve (12) month period beginning on July 1 of any
year and ending on June 30 of the following year.
"Force Majeure" means any condition or event not within the control of a party
obligated to perform hereunder, including, without limitation, "acts of God"; strikes, lock-outs,
or other disturbances of employer/employee relations; acts of public enemies; orders or restraints
of any kind of the government of the United States or any state thereof or any of their
departments, agencies, or officials, or of any civil or military authority; insurrection; civil
disturbances; riots; epidemics; pandemics; quarantines; curfews; federal, State or local executive
orders mandating public obedience to government emergency order mandates; landslides;
lightning; earthquakes; subsidence; fires; hurricanes; storms; droughts; floods; arrests; restraints
of government and of people; explosion; and partial or entire failure of utilities. Failure to settle
strikes, lock-outs and other disturbances of employer/employee relations or to settle legal or
administrative proceedings by acceding to the demands of the opposing party or parties, in either
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case when such course is in the judgment of the party hereto unfavorable to such party, shall not
constitute failure to use its commercially reasonable efforts to remedy such a condition or event.
"General Obligation Bonds" means any series of general obligation bonds of the
District authorized to be sold and issued by the District.
"General Plan of the District" means the General Plan submitted by the
Developer in connection with the petition for formation of the District in accordance with the
Act.
"IGA" means the Intergovernmental Agreement by and among the Apache
Junction Water Utilities Community Facilities District, the Superstition Mountains Community
Facilities District No. 1, the Superstition Vistas Community Facilities District No. 1 and the
Superstition Vistas Community Facilities District No. 2 Pertaining to Community Facilities
District Operations, Infrastructure and Financings, dated as of_, 2021 and recorded
2021, in the Official Records of the Pinal County Recorder as Instrument No.
"Indemnified Party" means the Municipality and the District and each council
member, legislator, director, trustee, partner, member, officer, official, independent contractor,
agent or employee thereof and each person, if any, who controls the Municipality and/or the
District within the meaning of the Securities Act. Indemnified Party further includes SMCFD
and WUCFD and each director, trustee, partner, member, officer, official, independent
contractor, agent or employee thereof, but only in connection with any Infrastructure accepted by
SMCFD or V%TUCFD, respectively.
"Infrastructure" means, collectively, the public infrastructure and public
infrastructure purposes described in Exhibit B hereto and described in the General Plan of the
District to be the subject of a Report.
"Initial Expenses" means, the expenses and costs incurred by the District and the
Municipality in connection with the formation and initial operation of the District and budgeted
District Expenses specifically allocated to the Initial Expenses.
"Intergovernmental Agreement Ace'means Title 11, Chapter 7, Article 3, Arizona
Revised Statutes, as amended.
"Land Development Agreement" means the Development Agreement for
Superstition Vistas dated October 5, 2021, between the Municipality and the Developer and
recorded on 1 2021, in the Official Records of Pinal County as Instrument No.
' as the same may be amended from time to time as expressly provided in Section 2.1
of this Agreement.
"Municipality" means the City of Apache Junction, Arizona, an Arizona
municipal corporation.
"Necessary Public Property"has the meaning ascribed in Section 2.5.
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"01M Expenses" means any and all expenses and costs of the operation and
maintenance of any Project and accumulating a Replacement Reserve Amount with respect to
the Projects including any overhead incurred by the Municipality, or other governmental entity,
with respect thereto and specifically allocated to the O/M Expenses.
"01M Reserve"has the meaning ascribed in Section 9.4.
"01M Tax" means an ad valorem tax levied at the rate of not to exceed $0.30 per
$100.00 of net assessed limited property valuation against all real and personal taxable property
in the District; provided that such O/M Tax rate may be increased in accordance with the Act.
"Participation Contract" means the Participation and Infrastructure Contract
Regarding ASLD Sale No. 53-120190, executed on November 12, 2020, between ASLD and the
Developer.
"Patented"has the meaning ascribed in the Participation Contract.
"Plans and Specifications"means the plans and specifications for a Project which,
if the District acquires, shall be prepared and reviewed in accordance with the same standards
and requirements for plans and specifications for construction projects of the Municipality, or
other governmental entity, similar to the Project or the Acquisition Project, as applicable.
"Project" means each component or element which is a part of the Infrastructure
on an individual basis and includes both Acquisition Projects and Construction Projects which
are the subject of a Construction Contract in the name of the District.
"Property"means the real property described in Exhibit A to this Agreement.
"Public Procurement Requirements" means the public procurement and award
processes established pursuant to A.R.S. Title 34, as amended from time to time, and the
procurement policies of the Municipality, or other governmental entity, pertaining to projects of
the Municipality, or other governmental entity, similar to the Infrastructure.
"Replacement Reserve Amount" means an amount calculated using generally
acceptable accounting practices based on the useful life of the various assets comprising the
Projects established by the Internal Revenue Code of 1986, as amended, to be used to replace
such assets.
,'Report" means the study of the feasibility and benefits required by the Act for
each applicable Project or Acquisition Project.
"Securities Act"means the Securities Act of 1933, as amended.
"Segment" means a completed, discrete, functional portion of a Project as
determined by the District Engineer and the District Manager, in their sole discretion.
"Segment Price" means an amount equal to the sum of the amounts paid by the
Developer or the District for: (1) the Plans and Specifications for the Segment if approved by the
8
District Board as described in Section 2.6 and Section 5.3 of this Agreement, (including the costs
of the review of such design by the District Engineer); (2) construction of the Segment pursuant
to the Construction Contract for such Segment (such amount to be equal to the contract amount
plus any increases to such contract amount approved as described in Section 3.5 less any change
orders decreasing the contract amount); (3) independent third party inspection and supervision of
performance under such Construction Contract; (4) the fair market value of any real property
required for public purposes, other than right-of-way, utility, access easements or other land
typically required to be dedicated by developers of infrastructure similar to the Project, if
included in a Report approved by the District Board, in its sole discretion; and (5) other
miscellaneous or incidental costs for such Segment attributable to design and construction of the
Segment approved by the District Engineer and as certified in the Certificate of the Engineers for
that Segment.
"Shortfall"has the meaning ascribed in Section 9.2(b).
"SMCFD" means Superstition Mountains Community Facilities District No. 1, a
municipal corporation and political subdivision of the State.
"State"means the State of Arizona.
"Work" means the portion of the Infrastructure described in the resolution of
intention pertaining to the formation of an Assessment District.
"Work Plans and Specifications" means, the descriptions of the Infrastructure in
the Report and the Plans and Specifications for the corresponding Projects, which shall comprise
the Work.
"WUCFD" means Apache Junction Water Utilities Community Facilities District,
a municipal corporation and political subdivision of the State.
(b) All references in this Agreement to designated "Exhibits,"
"Articles," "Sections" and other subdivisions are to the designated Exhibits, Articles, Sections
and other subdivisions of this Agreement as originally executed.
(c) The words "herein," "hereof' and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular Exhibit, Article,
Section or other subdivision.
Section 1.2. Except as otherwise specifically provided in this Agreement, the
District shall be subject to and governed by the terms and provisions of this Agreement and the
applicable terms and provisions of the Land Development Agreement, Community Plan and the
CFD Guidelines, as the same may be amended from time to time; provided, in the event of a
conflict between the Land Development Agreement, Community Plan, this Agreement and the
CFD Guidelines, the Land Development Agreement, Community Plan and this Agreement shall
control; provided, further, in the event of a conflict between the Land Development Agreement
and Community Plan and this Agreement, the Land Development Agreement and Community
Plan shall control.
9
Section 1.3. The District may retain an independent financial advisor, legal
counsel, bond counsel, underwriter, engineer and such other advisors and consultants as the
District determines are necessary to assist in its operations, including but not limited to
evaluating budgets, reports, financing documents, District construction documents and similar
matters. District Consulting Costs shall be included as District Expenses, provided, however, all
or certain District Consulting Costs may, if approved by the District Board, be paid with the
proceeds of Bonds.
Section 1.4. The District shall maintain its records and conduct its affairs in
accordance with the Act, the laws of the State, and this Agreement.
Section 1.5. The Municipality shall be paid by the District for costs and
expenses relating to the District and the Infrastructure financed by the District, provided,
however, in no event shall the Municipality be paid less than fifteen thousand ($15,000.00) per
fiscal year. The Municipality may request the District to allocate all or any portion of such
amount to SMCFD and VVUCFD in accordance with the IGA. Upon request of the Developer,
the Municipality will provide the District and the District will provide the Developer with an
invoice for the Municipality's costs and expenses.
Section 1.6. (a) All Infrastructure described in the District's General Plan (as
defined in the Act) that is or expected to be financed with District moneys or proceeds of District
Bonds: (i) shall be public infrastructure as described in the Act; and (ii) shall be publicly
procured and awarded pursuant to the Public Procurement Requirements.
(b) The form of Notice Inviting Bids shall be in such form as agreed to by the
Engineers and approved by the Municipality.
(c) Compliance with the Public Procurement Requirements shall be evidenced
by the Certificate of the Engineers.
(d) All Construction Contracts relating to Infrastructure shall provide that the
respective contractors or vendors shall not have recourse, directly or indirectly, against the
Municipality or other governmental entity, as applicable. In the case of any initial financing
provided by the Developer of any Construction Contract relating to Infrastructure for which
reimbursement is expected, such Construction Contract shall provide that the respective
contractors or vendors shall not have recourse, directly or indirectly, against the District for the
payment of any costs under such contract or any liability, claim or expense arising therefrom and
that the Developer shall have sole liability for payment under such Construction Contract of all
such amounts.
Section 1.7. (a) The Developer, or, after the end of the Developer's
Exclusive Period (as defined herein), the District or the Municipality or, if applicable, any third
party owning real property within the District, shall have the right to submit to the District Board
one or more Reports pertaining to the issuance of Bonds to finance the construction, acquisition
or installation of all or a part of the Infrastructure described in the General Plan. The District
Board, exercising its sole discretion, may thereafter approve or reject the Report and approve or
reject the issuance of District Bonds. With respect to the issuance of Bonds, the District Board
10
may consider Reports submitted by: (1) the District or the Municipality and issue Bonds upon
(and only upon) the earliest to occur of: (i)the twenty-fifth (25th) anniversary of the formation of
the District, (ii) the date on which the District has issued seventy percent (70%) or more of the
General Obligation Bonds authorized at the election referenced in the Recitals hereto, or (iii) the
date on which the undeveloped property then owned (including ownership rights under the
Participation Contract) by the Developer within the District represents less than fifteen percent
(15%) of the land within the District; provided, further in any such event the District may
consider Reports submitted for Assessment Bonds by parties other than the Developer only if no
portion of the assessment to be levied to secure the Assessment Bonds will be levied on property
owned by the Developer; or (2) parties other than Developer upon (and only upon) the earliest to
occur of (i) the twenty-fifth (25th) anniversary of the formation of the District, or(ii) the date on
which undeveloped property then owned (including ownership rights under the Participation
Contract) by the Developer within the District represents less than fifteen percent (15%) of the
land within the District (the foregoing periods described in clauses (1) and (2) are collectively
referred to herein as the"Developer's Exclusive Period"). Any District financing not initiated by
the Developer shall be in accordance with the CFD Guidelines and as otherwise approved by the
District Board.
(b) Notwithstanding the provisions set forth above in paragraph (a) of this
Section, the District Board, at any time, may approve a Report and authorize the issuance and
sale of Bonds, notwithstanding whether the Report was submitted by the District or the
Municipality, if the proceeds of such Bonds are necessary to: (1) alleviate or otherwise contain
bona fide threats, as determined by the District Engineer (provided, however, the Developer may
appeal such determination to the District Board and the District Board's determination shall be
conclusive), to public health and safety within the District; (2) construct Infrastructure required
to be constructed by the Developer and the Developer has failed to construct such Infrastructure
after a written request has been presented by the Municipality or other governmental entity; or
(3) to repair or replace Infrastructure which the Municipality, or other applicable governmental
entity, is responsible to maintain and which was not installed pursuant to or in conformance with
approved plans or specifications or which the District Engineer and Developer's Engineer
mutually agree has failed prior to its expected useful life, as such useful life is established by
usual and customary engineering principles, except if such failure is attributable to the failure of
the Municipality, or other governmental entity, to maintain such Infrastructure to applicable
standards.
(c) The Developer acknowledges and agrees as follows: -(1) the approval of
any Report, the issuance and sale of Bonds or the District's levy of taxes, assessments, fees or
charges are subject to the sole, absolute and unfettered discretion of the District and District
Board; (2) nothing contained in this Agreement or any action or continued actions taken or not
taken pursuant to this Agreement shall create any obligation, express or implied, of the District
to issue or continue to issue Bonds of any type or amount or levy or continue to levy any tax or
assessment of any type or amount; (3) the Developer has no rights and expressly waives any and
all future rights, claims or causes of action, express or implied, created by this Agreement for
any action or continued actions taken or not taken pursuant to this Agreement or under any other
agreement with the District or the Municipality that would create any obligation of the District to
issue or continue to issue Bonds of any type or amount or levy or continue to levy any tax or
assessment (except as necessary to pay debt service on outstanding Bonds of the District); (4) the
Developer is not relying now or shall not rely in the future on Bonds, taxes, assessments, fees or
other District actions for the development of the Property; and (5)upon expiration of the
Developer's Exclusive Period, as referenced in Section 1.7(a), or the occurrence of an event
described in Section 1.7(b), as applicable, the District may issue Bonds or levy taxes,
assessments, fees or charges for purposes other than payment to the Developer for Acquisition
Projects then eligible for financing pursuant to Article III of this Agreement. The District shall
review submitted Reports in accordance with the time periods described in A.R.S. § 48-715.
Section 1.8. Notwithstanding Section 1.7 above, the Developer shall be
permitted to withdraw any Report submitted by the Developer from consideration by the District
at any time before the conclusion of the hearing thereon. In the event of such a withdrawal, the
District Board shall not approve the Report or adopt any resolution which would effect an
implementation of any part of the transaction described in such Report. The Developer shall be
permitted to resubmit any such withdrawn Report or any Report which has been rejected by the
District Board and then amended by the Developer, at such time as the Developer may, in its sole
discretion, deem advisable. The Developer is responsible for the costs incurred prior to the
withdrawal, including consultant fees.
ARTICLE 11
CONSTRUCTION OF PROJECTS BY THE DISTRICT;
ACQUISITION OF PLANS AND SPECIFICATIONS
Section 2.1. Upon a written request of the Developer and after approval by the
District Board, exercising its sole discretion, the District may enter into a Construction Contract
to construct a portion of the Infrastructure. The District may cause any portion of the
Infrastructure to be constructed pursuant to the Plans and Specifications which, in the discretion
of the District Manager, allows for development of the Property to proceed in accordance with
the terms of the Participation Contract and the Land Development Agreement and any
amendment thereto. The District shall not enter into a Construction Contract unless all
Necessary Public Property has been conveyed to the Municipality or, if applicable, to the District
or other governmental entity pursuant to Section 2.5 of this Agreement.
Section 2.2. (a) The procurement and preparation of the Plans and
Specifications and the procurement of the contractor for a Construction Contract for
Infrastructure shall be procured and awarded pursuant to the Public Procurement Requirements.
The Infrastructure shall be designed and constructed in accordance with the requirements for
constructing projects of the Municipality, or other applicable governmental entity, similar to the
Projects.
(b) The Infrastructure (or any Project which is a part thereof) shall be
procured in one or more parts by and in the name of the District, and Construction Contracts
shall be entered into with the respondent selected in accordance with the requirements for
awarding contracts pursuant to the Public Procurement Requirements and the requirements of the
Municipality, or other applicable governmental entity, pertaining to projects of the Municipality
or governmental entity similar to the Construction Contracts.
12
Section 2.3. None of the Developer or any corporation, partnership or other
business entity that owns or controls, is owned or controlled by, or is under common ownership
or control with Developer, have been or shall be compensated by any of the Municipality,
another governmental entity, or the District for any costs of any Project except as provided
herein.
Section 2.4. The public procurement of a Project or, at the sole discretion of the
District Board, the award of a Construction Contract in the name of the District, shall occur only
after the sale and delivery of the Bonds in an amount sufficient to produce Bond proceeds,
together with any cash collections of Assessments or other lawfully available monies, to pay all
the applicable Financeable Amounts.
Section 2.5. Unless the District Board, in its sole discretion, agrees such real
property is to be acquired by the District as part of the construction of the Project, prior to
publicly procuring any Construction Contract for the construction of a Project under this
Article II, or at such other time as approved by the District Board or District Manager, in its or
his discretion, the Developer or other landowner shall dedicate to the District or the
Municipality, as directed by the District Manager, or, if directed by the District Manager, to such
other governmental entity (as applicable), without cost, all necessary real property required for
the construction, ownership and operation of the Project (the "Necessary Public Property"). The
type, size and terms of the Necessary Public Property required for the Project shall be as
provided for in the Participation Contract, Land Development Agreement and Community Plan,
as applicable, and otherwise shall be in compliance with the requirements for public
infrastructure projects of, as applicable, the Municipality, or other applicable governmental
entity, similar to the Project. In addition, any such dedication to the District, the Municipality, or
other governmental entity, as applicable, shall occur after receipt by the District Manager of the
following with respect to such Necessary Public Property, in form and substance reasonably
satisfactory to the District Manager:
(i) special warranty deed, easement or other conveyance instrument
acceptable in form and substance to the Municipality (or other governmental entity) from the
Developer or the applicable landowner for such Necessary Public Property executed by an
authorized officer of the Developer or other landowner(as applicable),
(ii) such environmental assessments or other evidence satisfactory to
the District Manager that such Necessary Public Property does not contain environmental
contaminants, historical sites, burial grounds or other conditions which make such Necessary
Public Property unsuitable for its intended use or to the extent such conditions are present, a plan
satisfactory to the District Manager which sets forth the process by which such Necessary Public
Property will be made suitable for its intended use, a plan for remediation of such conditions, if
required by the District Manager and the sources of funds necessary to accomplish such purpose,
and
(iii) such other documents, instruments, approvals or opinions as the
District, Municipality, or other governmental entity, as applicable, may reasonably request
including title reports, insurance, findings of no significant impact, etc.
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Section 2.6. Plans and Specifications for the Projects which pertain to possible
Construction Contracts to be entered into by the District pursuant to this Article II or to possible
Acquisition Projects to be acquired pursuant to Article III shall be procured utilizing Public
Procurement Requirements. The District shall not be liable for any payment or repayment to the
Developer with respect to the Plans and Specifications except as provided by this Agreement.
ARTICLE III
CONSTRUCTION OF ACQUISITION PROJECTS BY THE DEVELOPER;
CERTAIN MATTERS RELATED TO PLANS AND SPECIFICATIONS
AND CHANGE ORDERS
Section 3.1. Subject to the terms of this Agreement including the obligation of
the District under the circumstances described herein to pay the Segment Price for a Segment or
the Construction Cost of any Acquisition Project as hereinafter provided, the Developer shall, at
the sole cost and expense of the Developer, cause the Infrastructure (other than Infrastructure
constructed by the District pursuant to Article II of this Agreement) to be constructed pursuant to
the Plans and Specifications, in a fashion which allows for development of the Property to
proceed in accordance with the terms of, and the timing provided by, the Community Plan and
the Land Development Agreement on real property in which the Developer has an interest.
Section 3.2. (a) The procurement and preparation of the Plans and
Specifications and the procurement of a contractor for the construction of an Acquisition Project
shall be procured and awarded pursuant to the Public Procurement Requirements applicable to
such Project. Construction Contracts and the construction of the Acquisition Project related
thereto shall be in accordance with the requirements for constructing projects of the
Municipality, or other applicable governmental entity, similar to the Acquisition Project.
(b) The Municipality, the District, or other applicable governmental
entity shall not bear any risks, liabilities, obligations or responsibilities under any contract to
prepare the Plans and Specifications, under any Construction Contract for Acquisition Projects,
or any risk of loss of or damage to any Acquisition Project (or any part thereof) occurring prior
to the later of: the time of acceptance or the time of acquisition of such Acquisition Project (or
part thereof)pursuant to Article IV.
(c) The Municipality and the District shall each be named as an
additional insured party on any and all insurance policies required under the bid specifications
for procurement of the Plans and Specifications or the procurement and contract terms of a
Construction Contract for any Acquisition Project and as a third party beneficiary with respect to
all bonds, warranties and guarantees with respect thereto.
(d) Evidence of final payment, lien releases, assignments and such
other documents as required by the District Manager or District Engineer shall be provided by
the Developer to the District before any acquisition pursuant to Article IV. If any liens are
placed on any portion of an Acquisition Project which is the subject of a Construction Contract
or if litigation ensues between the Developer and any contractor or other person with respect to
an Acquisition Project or Construction Contract pertaining to an Acquisition Project, the District
14
shall not acquire the Acquisition Project or any portion thereof until such liens are removed or
such litigation is resolved.
Section 3.3. (a) Any advertisement for bids and a Construction Contract for
any Acquisition Project or any advertisement for bids and a contract for services relating to the
preparation of any Plans and Specifications for any Acquisition Project shall clearly indicate that
the Developer will be the "OWNER" for purposes of the Construction Contract or contract for
such Plans and Specifications and shall include the following language: "THE WORK
WHICH IS THE SUBJECT OF THE BID IS THE SUBJECT OF A DISTRICT
DEVELOPMENT, FINANCING PARTICIPATION, WAIVER AND
INTERGOVERNMENTAL AGREEMENT AMONG DEVELOPER, THE CITY OF
APACHE JUNCTION, ARIZONA, AND SUPERSTITION VISTAS COMMUNITY
FACILITIES DISTRICT NO. 1 PURSUANT TO WHICH SUCH WORK MAY BE
ACQUIRED FROM OWNER BY SUCH COMMUNITY FACILITIES DISTRICT. THE
SUCCESSFUL BIDDER WILL NOT HAVE RECOURSE, DIRECTLY OR
INDIRECTLY, TO SUCH CITY OR COMMUNITY FACILITIES DISTRICT FOR ANY
COSTS UNDER ANY CONTRACT OR ANY LIABILITY, CLAIM OR EXPENSE
ARISING THEREFROM."
(b) Each Construction Contract or contract for such Plans and
Specifications shall provide that the respective contractors shall not have recourse, directly or
indirectly, against the Municipality, the District, or other applicable governmental entity, for the
payment of any costs pursuant to such Construction Contract or contract for such Plans and
Specifications or any liability, claim or expense arising therefrom and that the Developer shall
have sole liability therefor. Notwithstanding the foregoing, each Construction Contract or
contract for Plans and Specifications shall provide for the assignment of all insurance,
warranties, guarantees and owner's rights to the District, the Municipality or other governmental
entity, as directed by the District Manager or designee, upon acquisition of the Acquisition
Project.
Section 3.4. The Developer shall provide for inspection of Work performed
under any Construction Contract by the Engineers and, if applicable the Municipality or other
applicable governmental entity. The District and, if applicable, the Municipality, shall comply
with the inspection review time periods described in A.R.S. § 48-728. In accordance with the
IGA, to the extent applicable, SMCFD and WUCFD have agreed to comply with A.R.S. § 48-
728.
Section 3.5. Any change order to any Construction Contract or contract for
Plans and Specifications shall be subject to approval by the Engineers (which approval shall not
be unreasonably withheld or delayed) and shall be certified to in the applicable Certificate of the
Engineers; provided, however, that any change order or the aggregate of any change order and
all previously approved change orders: (i) expected to increase the contract amount of a
Construction Contract in excess of ten percent (10%); (ii) for work not reasonably related to the
scope of work in the Construction Contract; or (iii) constituting a material change to the scope of
the Project shall be the subject of the same approval requirements that a change order to a
construction contract of, as applicable, the Municipality or other applicable governmental entity
15
would be subject unless modified by action of the District Board and, specifically, the approval
of the District Manager.
ARTICLE IV
ACQUISITION OF ACQUISITION PROJECTS FROM THE DEVELOPER
Section 4.1. (a) Subject to the other terms of this Agreement and after the
District Board, exercising its sole discretion, approves a Report, the Developer shall sell to the
District, and the District shall acquire from the Developer, the Acquisition Project or Segments
thereof, together with (if not previously conveyed or dedicated) the Necessary Public Property,
for the Construction Costs or Segment Prices, as applicable.
(b) Acquisition of an Acquisition Project or a Segment shall be
financed only pursuant to Section 5.2 hereof.
(c) None of the District, the Municipality, or other applicable
governmental entity, shall be liable for any payment or repayment to the Developer with respect
to the Acquisition Project except as provided by this Agreement.
Section 4.2. Unless the District, in its sole discretion, agrees such real property
is to be acquired as part of the Project, the Developer or other landowner, as applicable, shall
dedicate to the District or the Municipality, as directed by the District Manager, or if directed by
the District Manager, to such other governmental entity (as applicable), without cost, all
Necessary Public Property required for the Acquisition Project or the Segment, as applicable.
The type, size and terms of such Necessary Public Property required for the Acquisition Project
shall be in accordance with the Participation Contract, the Land Development Agreement and the
Community Plan, as applicable, and otherwise shall be in compliance with the requirements for
public infrastructure projects of the Municipality, or other governmental entity, similar to the
Project. Following the conveyance or dedication of Necessary Public Property to the District,
the Municipality or other governmental entity, the District, the Municipality or other
governmental entity, as applicable, shall provide any required license or other use right in respect
of the Necessary Public Property conveyed or dedicated, as necessary to permit the construction
of all or any remaining portion of the Acquisition Project (including performing required
warranty work).
Section 4.3. The District shall pay the Construction Cost or Segment Price, as
applicable, and acquire from the Developer, and the Developer shall accept the Construction
Cost or Segment Price for and sell to the District, the applicable Acquisition Project or Segment
described in the approved Report as provided in Section 4.1 within sixty (60) days after receipt
by the District Manager of the following with respect to such Acquisition Project or Segment, in
form and substance reasonably satisfactory to the District Manager:
(a) the Certificate of the Engineers;
(b) the Conveyance;
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(c) special warranty deed, easement, map of dedication, plat or other
conveyance instrument for all Necessary Public Property, executed by an authorized officer of
the Developer or other landowner, or, if applicable, evidence that all Necessary Public Property
pertaining to the Segment or the Acquisition Project, as applicable, has been conveyed to the
District or dedicated to the Municipality or other governmental entity, as applicable, pursuant to
Section 2.5 of this Agreement;
(d) the assignment of all applicable contractors' and materialmen's
warranties and guarantees as well as payment and performance bonds;
(e) a letter of acceptance issued by the Municipality, or other
governmental entity, and by its terms subject specifically to recordation of the Conveyance
which is the subject of such letter;
(f) if applicable, executed agreements pertaining to the Developer's
maintenance obligation for such Acquisition Project or Segment; and
(g) such other documents, instruments, insurance, warranties or
approvals as may reasonably be requested by the District Manager, or as may be required by the
Municipality (if such requirements are consistent with the Land Development Agreement), or
other governmental entity, for projects similar to the Acquisition Project, including, with respect
to any real property related to the Acquisition Project or Segment, title reports and evidence
satisfactory to the District Manager that such real property does not contain environmental
contaminants, historical sites, burial grounds or other conditions which make such real property
unsuitable for its intended use or, to the extent such conditions are present, a plan satisfactory to
the District Manager which sets forth the process by which such real property will be made
suitable for its intended use and the sources of funds necessary to accomplish such purpose.
ARTICLE V
FINANCING OF COSTS OF PROJECTS
AND PLANS AND SPECIFICATIONS
Section 5.1. (a) Any amounts due pursuant to a Construction Contract
wherein the District is the"owner" for purposes of such Construction Contract shall comply with
the provisions of Article II of this Agreement.
(b) For any Construction Contract wherein the District is the
"owner" for purposes thereof, until the requirements set forth in Article II of this Agreement are
satisfied, the District shall not have any obligation to pay any amounts pertaining to any Work or
Construction Contract or Plans and Specifications relating thereto.
Section 5.2.
(a) To provide for the financing of the acquisition of an
Acquisition Project or a Segment thereof as described in Article III of this Agreement, the
Developer shall submit a Report pertaining to such Acquisition Project or Segment to the District
Board for its approval, which Report the District Board may approve or reject, exercising its sole
discretion. If the Report is rejected, explanations for the rejection shall be provided and the
17
Developer will be given the opportunity to address the District Board's concerns and resubmit
the Report for the District Board's consideration. Notwithstanding the approval of the Report,
the issuance of Bonds or the District's levy of taxes or assessments shall require District Board
approval, which approval or denial may be exercised by the District Board in its sole discretion.
Prior to the sale of the Bonds, the Segment Price of that Acquisition Project or Segment shall be
paid by the Developer subject to the payment terms of this Agreement.
(b) If the District's issuance of Bonds for the financing of the
acquisition of an Acquisition Project is approved, as soon as possible after the sale and delivery
of the Bonds, the amount advanced by the Developer for the Construction Cost or Segment Price
of an Acquisition Project or a Segment thereof shall, subject to the requirements of Sections 4.2
and 4.3, be paid to the Developer from, and only from, the available,unrestricted proceeds of the
sale of the Bonds to the extent only of the remaining amounts thereof(and, if applicable, cash
collections, if any, from the Assessments). The District, the Municipality, or, as applicable,
other governmental entity, shall not be liable to the Developer or any other landowner (or any
contractor or assigns under any Construction Contract) for payment of any Construction Cost or
Segment Price except to the extent available, unrestricted proceeds of the sale of the Bonds (and,
if applicable, cash collections, if any, from the Assessments) are available for such purpose, and
no representation or warranty is given that Bonds will be issued, can be sold or that sufficient
available, unrestricted proceeds from the sale of the Bonds shall be available to pay any
Construction Cost or Segment Price. In the event there are not sufficient Bond proceeds to pay
all of the Construction Cost or Segment Price, nothing contained herein shall preclude the
Developer from including the unpaid portion in a future Report or preclude the District from
including the unpaid portion in a future Bond financing.
Section 5.3. The costs of any Plans and Specifications for a Project to be
constructed by the District pursuant to Article II of this Agreement or for an Acquisition Project
pursuant to Article III of this Agreement, and the Construction Costs of any Acquisition Project
or Segment Price of a Segment may be paid only after: (i) the District Board's approval of a
Report submitted by the Developer, which Report the District Board may approve or reject
exercising its sole discretion; (ii) the issuance, sale and delivery of the Bonds (and while there
are remaining, available, unrestricted proceeds of the sale of the Bonds) produces Bond proceeds
sufficient to pay all Construction Costs or Segment Prices; and (iii) the receipt by the District
Manager of reasonable evidence of ownership of the Plans and Specifications including
architectural or design materials (including memorandums, notes and preliminary and final
drawings) and the related intellectual property rights (including copyright, if any) related to such
Plans and Specifications, in all media, including electronic.
Section 5.4. The District, the Municipality or, as applicable, other
governmental entity shall not be liable to the Developer or any other landowner (or any
contractor or assigns under any Construction Contract) for payment of any Construction Costs or
Segment Price or for the costs of Plans and Specifications except to the extent available,
unrestricted proceeds of the sale of the Bonds (and, if applicable, cash collections, if any, from
the Assessments) are available for such purpose, and no representation or warranty is given that
the Bonds can be sold or that sufficient, available, unrestricted proceeds from the sale of the
Bonds shall be available to pay such Construction Costs or Segment Price or the costs of such
Plans and Specifications. In the event there are not sufficient Bond proceeds to pay all of the
18
Construction Costs or Segment Price, or the costs of such Plans and Specifications, nothing
contained herein shall preclude the Developer from including the unpaid portion in a future
Report or preclude the District from including the unpaid portion in a future Bond financing.
Section 5.5.
If any cost component described in a Segment Price is procured or
otherwise determined with reference to the Project of which the Segment is a part, without
reference to particular Segments (e.g., Plans and Specifications), such cost shall be
proportionately allocated among the Segments comprising the Project in a manner approved by
the District Manager for purposes of determining the applicable Segment Price.
ARTICLE VI
MATTERS RELATING TOT E ASSESSMENT BONDS AND
THE GENERAL OBLIGATION BONDS AND
OTHER OBLIGATIONS OFT DISTRICT
Section 6.1. (a) Upon dates established by the District Manager in his or
her sole discretion at the request of the Developer and in accordance with the Act, the District
Board shall consider Reports submitted by the Developer and if the District Board, exercising its
sole discretion, approves such Report, the District Board, in its sole discretion, may take all such
reasonable action necessary for the District to issue and sell, pursuant to the provisions of the
Act, the Bonds in accordance with the expected method of financing, including the nature and
timing of the issuance of the Bonds set forth in the Report.
(b) If the Assessment Bonds or the General Obligation Bonds, as
applicable, are not issued or if the available, unrestricted proceeds of the sale of the Assessment
Bonds or the General Obligation Bonds are insufficient to pay any or all of the amounts due
described in Sections 5.1(a), or 5.2(b), there shall be no recourse against the District, the
Municipality or other governmental entity for, and none of the District, the Municipality or other
governmental entity shall have liability with respect to, such amounts so due or the Construction
Costs or Segment Prices for the Acquisition Project, except from the available, unrestricted
proceeds of the sale of the Bonds, if any and as applicable. In the event there are not sufficient
Bond proceeds to pay all of the Construction Cost or Segment Price, nothing contained herein
shall preclude the Developer from including the unpaid portion in a future Report or preclude the
District from including the unpaid portion in a future Bond financing. Notwithstanding anything
contained in this Agreement, any Report or the Land Development Agreement, Bonds shall not
be issued to pay the Financeable Amount of any Project that does not meet the reimbursement
eligibility requirements set forth in Section 7.1.
(c) The District Board shall, in its sole and absolute discretion,
determine on a series by series basis the method of sale of the Bonds. The District will consider
factors such as investment grade ratings (as assigned by a nationally recognized bond rating
agency), public sale or placement and transfer restrictions, if any, at the time each series of
Bonds is sold.
(d) All costs of issuance related to the issuance, sale and delivery of
the General Obligation Bonds and the Assessment Bonds shall be paid by Developer, unless
19
otherwise approved by the District Board, in its sole and absolute discretion. On a case by case
basis, the District Board may require the Developer to pay an additional amount related to an
Assessment Bond or General Obligation Bond transaction for District staff time to process the
transaction.
(e) The District may enter into agreements with the Treasurer of Pinal
County, Arizona, for the collection of ad valorem property taxes, Assessment installment
payments, and other fees and charges imposed by the District. The Developer shall consent, as
applicable, to the modification of any Assessment Bond or General Obligation Bond financing
transaction structure as necessary to comply with such collection agreement between the
Treasurer of Pinal County, Arizona, and the District, including, without limitation, agreeing to
the application of proceeds of the General Obligation Bonds and the Assessment Bonds to
capitalized interest.
(f) The District shall only levy Assessments on such portion of the
Property that is Patented in accordance with the Participation Contract.
Section 6.2. (a) The total aggregate principal amount of all of the series of
the General Obligation Bonds shall not exceed $400,000,000, during the term of this Agreement.
The General Obligation Bond authorization shall not expire, but the Developer's ability to
request reimbursement from proceeds of the sale of General Obligation Bonds is limited as
described in Article VIL
(b) A series of the General Obligation Bonds shall only be issued if the
debt service therefor is reasonably projected to be amortized from amounts generated by a tax
rate of not to exceed $3.30 per one hundred dollars ($100.00) of net assessed limited property
valuation of taxable property within the boundaries of the District as indicated on the certified
tax roll for the current tax year; provided, however, and notwithstanding the foregoing, General
Obligation Bonds may be issued if authorized by the District Board, in its sole discretion, where
a tax rate greater than $3.30 is necessary to pay the combined debt service of a proposed and any
outstanding General Obligation Bonds if other financial assurances, sources of revenue or
security acceptable to the District Board, in its sole discretion, are provided to secure the
payment of debt service on the General Obligation Bonds.
(c) For purposes of the foregoing, a delinquency factor for tax
collections equal to the greater of five percent (5%) or the historic, average, annual, percentage
delinquency factor for the District calculated at or near the time of the issuance of the General
Obligation Bonds shall be assumed; all property in the District owned by the Developer
(including any ownership interest pursuant to the Participation Contract) or any entity owned or
controlled (as such term is used in the Securities Act) by the Developer shall be assigned the last
certified assessed value such property had when categorized as "vacant" for purposes of net
assessed limited property valuation and the debt service for any outstanding series of the General
Obligation Bonds theretofore issued shall be taken into account in determining whether such tax
rate will produce adequate debt service tax collections; provided, however, and without limiting
the District's sole discretion pertaining to a decision whether to issue Bonds, the District and the
Developer shall use their best efforts to issue the first series of the General Obligation Bonds no
later than necessary to have the debt service tax rate of $3.30 appear on the first tax bill
20
applicable to any single family residential dwelling unit to be located within the boundaries of
the District to be owned by other than the Developer or any entity owned or controlled (as such
term is used in the Securities Act) by the Developer or any homebuilder to whom the Developer
or any entity owned or controlled (as such term is used in the Securities Act) by the Developer
sells property within the boundaries of the District.
(d) If requested in the Report or determined to be necessary in the sole
discretion of the District Board, the "sale proceeds" of the sale of such series of General
Obligation Bonds shall include an amount sufficient to fund a reserve fund, which shall be a
reserve to secure payment of debt service on that series of the General Obligation Bonds, in an
amount not to exceed the maximum amount permitted by the Internal Revenue Code of 1986, as
amended, and the Treasury Regulations applicable thereto.
(e) At the sole discretion of the District Board, until such time as all of
the Property is Patented pursuant to the Participation Contract, in connection with the issuance of
any series of General Obligation Bonds requested in a Report submitted by the Developer, the
District Board may require any such series of General Obligation Bonds to have redemption
features or final maturity dates as determined appropriate by the District Board in its sole and
absolute discretion, and further the District Board may require the projected debt service of any
such series of General Obligation Bonds to be calculated using a net assessed limited property
valuation which excludes any portion of the Property that is not Patented.
Section 6.3. (a) The District Board shall, from time to time and in its sole
discretion, take all such reasonable action necessary for the District to levy Assessments and to
issue and sell, pursuant to the provisions of the Act, the CFI Guidelines and this Agreement,
Assessment Bonds, in an amount not to exceed the Financeable Amount. The Developer and
any landowners shall consent to and assist with necessary actions for the District to levy
Assessments and issue and sell Assessment Bonds, including, without limitation, entering into
waiver and development agreements pertaining to formation of assessment districts and levying
Assessments. The Developer's ability to request reimbursement from proceeds of the
Assessment Bonds is limited as described in Article VII. Assessments shall only be levied on
portions of the Property that have been Patented pursuant to the Participation Contract.
(b) (1) The Assessments shall be levied based on the Financeable
Amount, but in any case shall, subject to Section 6.3(d), not exceed $5,000 per single family
residential lot. Upon the request of the District, the Developer shall submit data and other
information pertaining to the expected average full cash value of the improved residential parcel,
such as comparable sales prices, per foot construction costs, or independent estimates or
appraisals.
(2) The Assessments may be levied pursuant to the procedures
prescribed by A.R.S. §§ 48-576 through 48-589, as amended, as nearly as practicable and except
as otherwise provided herein, upon all of the Assessed Property in an amount equal to the
Financeable Amount based on the benefits to be received by and as allocated to the Assessed
Property and shall be collected pursuant to the procedures prescribed by A.R.S. §§ 48-599 and
48-600 as nearly as practicable.
21
(3) The Developer and any other landowners shall accept the
Assessments which are in an amount not more than the Financeable Amount against the
Assessed Property and have the Assessments allocated and recorded against the Assessed
Property; provided, however, that the District Board may modify the Assessments after the
Assessments have been assessed to correspond to subsequent changes, modifications or
subdividing of the Assessed Property but in no case shall the aggregate total of all Assessments
be reduced below a total necessary to provide for debt service for the corresponding Assessment
Bonds.
(4) In the event of nonpayment of any of the Assessments, the
procedures for collection thereof and sale of the applicable portion of the Assessed Property
prescribed by A.R.S. §§ 48-601 through 48-607 shall apply, as nearly as practicable, except that
pursuant to A.R.S. § 48-721 neither the District nor the Municipality is required to purchase any
of the Assessed Property at the sale if there is no other purchaser.
(5) Assessments on single family residential lots may be
prepaid at any time and the Assessment Bonds secured by such Assessments shall provide for
redemption on any interest payment date, without penalty or premium, unless the District
approves different prepayment terms, such approval shall be deemed granted if different
prepayment terms are set forth in approved bond proceedings. To prepay in whole or in part the
applicable portion of any of the Assessments, the following shall be paid in cash to the District:
(I) the interest on such portion to the next date Bonds may be redeemed plus (II) the unpaid
principal amount of such portion rounded up to the next highest multiple of$1,000 plus (III) any
premium due on such redemption date with respect to such portion plus (IV) any administrative,
engineering or other fees charged by the District with respect thereto.
(6) The Developer and any other landowners hereby
acknowledge that lenders and other parties involved in financing future improvements on the
Assessed Property (including mortgages for single family residences) may require that liens
associated with the Assessments (or applicable portions thereof) be paid and released prior to
accepting a lien with respect to any such financing.
(c) (1) This Agreement shall be construed to be an express consent
by the Developer and all landowners that with respect to the issuance of any Assessment Bonds
that: (I) the District may, with respect to the Assessed Property, incur costs and expenses
necessary to complete the Work and (II) the District may levy and collect the Assessments in
amounts sufficient to pay the Financeable Amount, including the Work, but not in excess of the
Financeable Amount.
(2) The mailing to the governing body of the Municipality of
the Estimate and the Plans and Specifications in the form of the Report pursuant to A.R.S.
§ 48-715, shall satisfy the filing requirements of A.R.S. § 48-577.
(d) At the time of a limited or a private sale of the Assessment Bonds,
an appraisal prepared by an MAI appraiser must show that the bulk, wholesale value of each
parcel comprising the Assessed Property with all of the Infrastructure described in the Report,
and to be financed by the Assessment Bonds and/or for which performance bonds have been
22
obtained, in place as of the date of valuation has a value to lien ratio at least four (4) times as
much as the principal amount of the Assessment Bonds assessed to such parcel. In the case of a
public sale of Assessment Bonds, an appraisal prepared by an MAI appraiser must show that the
bulk, wholesale value of each parcel comprising the Assessed Property with all of the
Infrastructure described in the Report, and to be financed by the Assessment Bonds and/or for
which performance bonds have been obtained, in place as of the date of valuation has a value to
lien ratio at least six (6) times as much as the principal amount of the Assessment Bonds
assessed to such parcel.
(e) If requested in the Report or determined to be necessary in the sole
discretion of the District Board, the proceeds of the Assessment Bonds shall include an amount
sufficient to fund a reserve fund, which shall be a reserve to secure payment of debt service on
the Assessment Bonds, in an amount not to exceed the maximum amount permitted by the
Internal Revenue Code of 1986, as amended, and the Treasury Regulations applicable thereto.
Payment from such reserve shall not effect a reduction in the amount of the Assessments, and
any amount collected with respect to the Assessments thereafter shall be deposited to such
reserve to the extent the Assessments are so paid therefrom.
(f) The proceeds of the sale of the Assessment Bonds may include an
amount sufficient to fund interest accruing on such series of the Bonds in accordance with the
Act.
Section 6.4. In the event any portion of the Property is not eligible for an
Assessment for any reason, including, without limitation, a determination by the District Board
in its sole and absolute discretion, the Developer shall not assess fees or other costs against any
of the Property as an alternative to, or in lieu of, the Assessments that would otherwise be paid
by owners of the Property related to Bonds without the prior written approval of the District
Board, in its sole and absolute discretion. Provided, however, that if the fees or other costs
assessed by the Developer as an alternative to, or in lieu of, the Assessments does not exceed the
Assessments for other comparable property within the applicable Assessment District, then the
District Manager, in his or her sole and absolute discretion, may approve such fees or costs
without action by the District Board.
Section 6.5. Other than (1) this Agreement, (2) the Assessment Bonds and the
General Obligation Bonds and (3) any obligations necessary in connection with either of the
foregoing, the District shall not incur, or otherwise become obligated with respect to, any other
obligations.
ARTICLE VII
ACCEPTANCE BY THE MUNICIPALITY AND REIMBURSEMENT ELIGIBILITY
Section 7.1. Upon satisfaction of the terms for acceptance of the Infrastructure
established by the Municipality or other applicable governmental entity and compliance with the
provisions set forth in this Agreement and in the Land Development Agreement, the
Municipality, or as applicable, other governmental entity, shall accept such Infrastructure.
Unless previously paid by the proceeds of the District's Bonds, if sufficient Bond proceeds are
23
available, the District shall, simultaneously with the acceptance, pay the related Project
Construction Cost or Segment Price. If sufficient Bond proceeds are not available, the
Municipality or, as applicable, other governmental entity, shall accept such Infrastructure,
subject to the right of the Developer within the immediately succeeding ten(10) years from the
date of acceptance to seek reimbursement from the District for the advance of Project
Construction Costs and/or Segment Prices made by the Developer for the benefit of the District
from future Bond proceeds; provided, if the Developer seeks reimbursement there shall be
deducted from the reimbursement amount the amount, if any, expended by the Municipality, the
District or, as applicable, the other governmental entity, for the purposes described in Section
13(b)(3). The Project shall be accepted by the Municipality or, as applicable, other
governmental entity, subject to the conditions pursuant to which facilities such as the Projects so
constructed are typically accepted by the Municipality or, as applicable, other governmental
entity, including for purposes of the maintenance and operation thereof, except as otherwise
provided in the Land Development Agreement, and all warranties. Unless previously dedicated
and approved for public use by the Municipality or, as applicable, other governmental entity,
after acceptance the Project or Segment shall be made available for use by the general public.
ARTICLE VIII
INDEMNIFICATION AND INSURANCE
Section 8.1. (a) The Developer (1) shall indemnify and hold harmless each
Indemnified Party for, from and against any and all losses, claims, damages or liabilities,joint or
several, arising from any challenge or matter relating to the formation, activities or
administration of the District (including the establishment of the Assessed Property), or the
carrying out of the provisions of this Agreement (but not for any matters which are related to
infrastructure which is not part of the Infrastructure), including particularly but not by way of
limitation for any losses, claims or damages or liabilities (A)related to the levy or collection of
any tax or assessment which pays or secures any Bonds; (B) to which any such Indemnified
Party may become subject, under any statute or regulation at law or in equity or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material fact set forth in
any offering document relating to the Bonds, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a material fact required
to be stated therein or which is necessary to make the statement therein, in light of the
circumstances in which they were made, not misleading in any material respect; (C) to the extent
of the aggregate amount paid in any settlement of any litigation commenced or threatened arising
from a claim based upon any such untrue statement or alleged untrue statement or omission or
alleged omission if such settlement is effected with the written consent of the Developer (which
consent shall not be unreasonably withheld); and (D) related to any Construction Contract or
Project constructed pursuant to a Construction Contract, including claims of any contractor,
vendor, subcontractor or supplier and (2) shall reimburse any legal or other expenses reasonably
incurred by any such Indemnified Party in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however that the foregoing shall not apply to
any loss, claim, damage or liability to the extent arising from the activities or administration of
the District with respect to any portion of the Infrastructure that has been accepted by the
Municipality, or, as applicable, other governmental entity,pursuant to Section 7.1.
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(b) Section 8.1(a) shall, however, not be applicable to any of the
following:
(1) to the extent matters involve any gross negligence or
willful misconduct of any Indemnified Party,
(2) subject to Section 8.3(c), to the extent any loss, claim,
damage or liability for which and to the extent there is insurance coverage, procured for the
benefit of the District (excluding any self-insurance or coverage provided pursuant to any
insurance contracts obtained by the Municipality in the course of its normal business and not
specifically for community facilities district purposes) which names the District as an insured or
beneficiary, in order to provide insurance against the errors and omissions of the District Board
or the other representatives, agents or employees of the District and, subject to Section 8.3(c), to
the extent any loss, claim, damage or liability that is covered by any commercial general liability
insurance policy or other financial security instrument actually procured which names the
District as an insured or beneficiary. In the event that the insurance available to the Indemnified
Party is insufficient to reimburse the Indemnified Party for its actual losses, claims, damages or
liabilities, then the Indemnified Party has a right to indemnification from the Developer, but only
to the extent that indemnification by the Developer will be secondary to, and in excess of, the
insurance available pursuant to this Section 8.1(b)(2) of the Indemnified Party; provided,
however, that indemnification by the Developer will not be secondary to any available insurance
procured pursuant to Section 8.3(c) or in the event the District is otherwise unable to procure
insurance because of a breach by the Developer to pay amounts due pursuant to Section 9.2 or
Section 9.3,
(3) to the extent any loss, claim, damage or liability arises from
or relates to defects in any Infrastructure (i) not constructed by the Developer, or(ii) constructed
by the Developer that are not known to the Developer and are discovered after any applicable
warranty period following acceptance thereof by the Municipality or, if applicable, other
governmental entity, pursuant to Section 7.1,
(4) matters arising from or involving any material breach of
this Agreement by the District or any other Indemnified Party,
(5) the activities or administration of the District with respect
to Bonds or Infrastructure that is not the result of a Report submitted by the Developer,
(6) the levy and collection of any tax or assessment in order to
pay O/M Expenses which the Developer is not obligated to pay or any such levy and collection
in order to provide for the payment of Bonds which were not issued and sold as the result of a
Report submitted by the Developer,
(7) the offer or sale of any Bonds which are not the result of a
Report submitted by the Developer, or
(8) the claims of any contractor, vendor, subcontractor or
supplier under any Acquisition Project Construction Contract or Construction Contract which is
not initiated by, or is not the subject of an approved Report submitted by, the Developer.
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(c) An Indemnified Party shall, promptly after the receipt of notice of
a written threat of the commencement of any action against such Indemnified Party in respect of
which indemnification may be sought against the Developer, notify the Developer in writing of
the commencement thereof and provide a copy of the written threat received by such
Indemnified Party. Failure of the Indemnified Party to give such notice shall reduce the liability
of the Developer by the amount of damages attributable to the failure of the Indemnified Party to
give such notice to the Developer but the omission to notify the Developer of any such action
shall not relieve the Developer from any liability that it may have to such Indemnified Party
otherwise than under this section. In case any such action shall be brought against an
Indemnified Party and such Indemnified Party shall notify the Developer of the commencement
thereof, the Developer may, or if so requested by such Indemnified Party shall, participate
therein or defend the Indemnified Party therein, with counsel satisfactory to such Indemnified
Party and the Developer (it being understood that, except as hereinafter provided, the Developer
shall not be liable for the expenses of more than one counsel representing the Indemnified Parties
in such action), and after notice from the Developer to such Indemnified Party of an election so
to assume the defense thereof, the Developer shall not be liable to such Indemnified Party under
this section for any legal or other expenses subsequently incurred by such Indemnified Party in
connection with the defense thereof, subject to the Developer's obligations under Section 8.1(a)
of this Agreement; provided, however, that unless and until the Developer defends any such
action at the request of such Indemnified Party, the Developer shall have the right to participate
at its own expense in the defense of any such action. If the Developer shall not have employed
counsel to defend any such action within a reasonable period of time after receipt of written
notice of such action or if an Indemnified Party shall have reasonably concluded that there may
be defenses available to it and/or other Indemnified Parties that are different from or additional
to those available to the Developer (in which case the Developer shall not have the right to direct
the defense of such action on behalf of such Indemnified Party, which right may be exercised by
an Indemnified Party) or to other Indemnified Parties, the legal and other expenses, including the
expense of separate counsel, incurred by such Indemnified Party shall be borne by the
Developer.
Section 8.2. To the extent permitted by applicable law, the District shall
indemnify, defend and hold harmless each Indemnified Party who is not an independent
contractor for, from and against any and all liabilities, claims or demands for injury or death to
persons or damage to property arising from in connection with, or relating to the performance of
this Agreement by the District and any of its officials, officers, employees and agents. The
District shall not, however, be obligated to indemnify the District Indemnified Parties with
respect to damages caused by the negligence or willful misconduct of the District Indemnified
Parties. The District shall not indemnify, defend and hold harmless the Municipality or any
other governmental entity with respect to matters relating to public infrastructure owned by the
Municipality or any other governmental entity.
Section 8.3. (a) The District shall procure and maintain general liability and
public official liability insurance for the District and each member of the District Board with
limits of$1,000,000 per occurrence or claim, an annual aggregate liability of$3,000,000, with
defense costs not included in the limits, and terms and conditions acceptable to the Developer in
its reasonable discretion. The District shall maintain an additional $2,000,000 of excess
insurance above such primary underlying limits. The deductible associated with the insurance
obtained for the District and the members of the District Board shall not be more than $25,000
per occurrence or claim (provided that if such insurance is obtained in accordance with Section
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8.3(c), the deductible associated with the insurance shall not be more than $75,000 per
occurrence). Otherwise, such insurance shall be procured in accordance with the CFD
Guidelines and may include different terms than described in this Section if approved by the
District Manager in his or her sole discretion.
(b) Subject to the provisions of Section 83(c), the insurance required
by Section 8.3(a) shall be primary to, and will not seek contribution from, any insurance
available to the District as an additional insured pursuant to Section 8.4. Any insurance benefit
of the District as an additional insured pursuant to Section 8.4 shall be in excess of any insurance
required by Section 8.3(a). Subject to the provisions of Section 83(c), if any of the
Municipality, or other applicable governmental entities expected to accept Infrastructure, qualify
as an insured under the insurances required by Section 8.3(a), then the insurances described in
Section 8.3(a) shall be primary to, and will not seek contribution from, any insurance that is
available to the Municipality or other applicable governmental entities, as an additional insured
pursuant to Section 8.4, and any insurance for the benefit of the Municipality or other applicable
governmental entity as an additional insured pursuant to Section 8.4 shall be excess of any
insurance required by Section 8.3(a). The District shall obtain all endorsements to its policies of
insurance that are needed to cause its policies to comply with this requirement.
(c) At any time when the Developer is in breach of its payment
obligations pursuant to Section 9.2 or Section 9.3, or at any time when no Bonds that are the
result of a Report submitted by the Developer are outstanding, the District Manager, in his or her
sole discretion, may obtain the insurance required by Section 8.3(a) through a risk retention pool
available to certain political subdivisions of the State. If the District obtains insurance through a
risk retention pool, then, so long as such insurance is provided by a risk retention pool, Section
8.3(b) shall be of no force and effect and in no event shall any insurance coverage provided by
such risk retention pool be primary to the insurance available to the District pursuant to Section
8.4 or the indemnification available to the District pursuant to Section 8.1.
Section 8.4. The Developer, in connection with its development activities and
operation for development of the Property pursuant to the Participation Contract, the Land
Development Agreement, the Community Plan and this Agreement, and at its own expense, shall
maintain"occurrence" form commercial general liability insurance which names the District, the
Municipality, and other governmental entities anticipated to accept Infrastructure, with limits of
not less than $1,000,000 for each occurrence, $2,000,000 products and completed operations
aggregate, and $2,000,000 general aggregate. Proof of such insurance shall be provided to the
District Manager annually by July I of each calendar year as long as development activities and
operations for development of the Property pursuant to the Participation Contract, the Land
Development Agreement, the Community Plan and this Agreement are, from time to time,
occurring. In no event shall the Developer be required to maintain insurance specified in this
Section 8.4 after the District has acquired from the Developer public infrastructure from
proceeds of the sale of the General Obligation Bonds in the amount of$350,000,000.
ARTICLE IX
PAYMENT OF CERTAIN EXPENSES AND COSTS
Section 9.1. (a) To provide for expenses and costs required to administer
the General Obligation Bonds and the levy and collection of ad valorem taxes for payment of the
debt service for any General Obligation Bonds and any purposes otherwise related to such
activities of the District, amounts shall be budgeted by the District Board each Fiscal Year in the
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District Budget for such purposes and may be paid from amounts available from the tax levy
described in Section 6.2(b).
(b) To provide for the payment of expenses and costs required to
administer the Assessment Bonds and the levy and collection of the Assessments and any
purposes otherwise related to such activities of the District, amounts shall be budgeted by the
District Board each Fiscal Year in the District Budget for such purposes and may be paid from
amounts collected for such purposes as a portion of the interest portion of the installments due
with respect to the Assessments.
Section 9.2. (a) To provide for the payment of the District Expenses and the
O/M Expenses, the District Board shall levy all or a portion of the O/M Tax and shall apply the
collections of the O/M Tax first to pay the District Expenses and second to pay any remaining
O/M Expenses.
(b) Provided the District has levied or will levy in the Fiscal Year the
maximum authorized tax rate for the O/M Tax, and to the extent the collections of the O/M Tax
are not sufficient to pay the District Expenses, the Developer or, if approved by the District
Manager in his or her sole discretion, in lieu of the Developer, a homeowners' association,
property owners' association or similar association (an "HOA"), shall be liable and obligated to
pay to the District on May I of each year of the District the amount of any shortfall indicated in
the District Budget for the next Fiscal Year between the projected O/M Tax revenues for the
Fiscal Year and the aggregate amount of the District Expenses for such Fiscal Year (the
"Shortfall"), including any amount required because of any Shortfall in the prior Fiscal Year as
provided in such District Budget and no matter how such Shortfall was otherwise funded. The
obligation of the Developer or HOA to pay the Shortfall pursuant to this Section shall only be
effective until May I after the levy of the O/M Tax at $0.30 per $100.00 of net assessed limited
property value results in actual collections equal to or greater than $250,000 for three
consecutive Fiscal Years, and such collections are sufficient to pay all District Expenses
reflected in the respective District Budget for such three consecutive Fiscal Years. The District
shall only levy the O/M Tax in an amount necessary for the District Expenses and the O/M
Expenses reflected in the District Budget for the applicable Fiscal Year of the District and only
in reasonable amounts therefor.
Section 9.3. The Developer shall be obligated to promptly deposit with the
District such amounts and, at such times as are required by the CFD Guidelines (for example,
without limitation, a$60,000 initial deposit, additional $25,000 deposits (or such other additional
deposit amount approved by the District Manager or designee not less than $5,000) from time to
time, and at no time shall the balance fall below $25,000, all as further described in the CFD
Guidelines), provided, in no event shall the Developer be required, after the second full Fiscal
Year in which the O/M Tax is levied, to deposit amounts in excess of the estimated Shortfall, or
portion thereof, which the Developer is obligated to pay for the next succeeding Fiscal Year.
The District shall provide written notice to the Developer when additional deposits are required.
Upon the request of the Developer, an accounting will be made to the Developer of all amounts
spent for the Initial Expenses, to date. Amounts paid pursuant to this Section by the Developer
which may be reimbursed under applicable law to the Developer from the proceeds of the sale of
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Bonds shall, at the request of the Developer and to the extent of available amounts therefor, be
included as part of the uses of the Bond proceeds.
Section 9.4. (a) Within twenty (20) days of formation of the District, the
Developer shall be obligated to deposit $100,000 with the District (the "01M Reserve"). The
District shall maintain the O/M Reserve in a non-interest bearing account separate from the
general operating accounts of the District.
(b) In the event the Developer fails to pay the amounts to the District
required by Section 9.2(b) or Section 9.3, the District may apply the O/M Reserve to Initial
Expenses and District Expenses, as applicable. If the Participation Contract is terminated, or if at
any time the District applies any portion of the O/M Reserve to Initial Expenses or District
Expenses due to the Developer's nonpayment described in the preceding sentence, then (i)
Section 9.4(c) shall not apply, (ii) the District shall transfer any unspent balance of the O/M
Reserve to the general operating accounts of the District and (iii) close the separate non-interest
bearing account.
(c) Not later than 180 days after all Property has been Patented in
accordance with the Participation Contract and receipt by the District of a written request from
the Developer, the District shall disburse $100,000 to the Developer.
(d) The O/M Reserve may not be used for the payment of principal or
interest on the District's Bonds, and is not a reserve or replacement fund for federal tax law
purposes.
ARTICLE X
MISCELLANEOUS
Section 10.1. Federal Tax Law Compliance. The Municipality, the District
and the Developer shall not knowingly take, or cause to be taken, any action which would cause
interest on any Bond to be includable in gross income for federal income tax purposes of the
Internal Revenue Code of 1986, as amended.
Section 10.2. Disclosure Statement. (a) To provide evidence satisfactory to
the District Manager that any prospective purchaser of land within the boundaries of the District
has been notified that such land is within the boundaries of the District and that the Bonds may
be then or in the future be outstanding, the Disclosure Statement shall be produced by the
Developer or each homebuilder to whom the Developer has sold land and signed by each
subsequent owner of real property in the District, and such executed Disclosure Statement shall
be provided to the District as set forth below; provided, however, that the Disclosure Statement
may be modified as necessary in the future to adequately describe the District and the Bonds and
source of payment for debt service therefor as agreed by the District Manager and the Developer
or any homebuilder to whom the Developer has sold land. The failure to provide any subsequent
owner of real property in the District the Disclosure Statement will not relieve the Developer or
any other owner of real property in the District from the payment of any District tax, assessment,
fee or charge.
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(b) The Developer or each homebuilder to whom the Developer has
sold land shall:
(1) cause any purchaser of land to sign the Disclosure
Statement upon entering into a contract for purchasing such land;
(2) provide a copy of each fully executed Disclosure Statement
to be filed with the District Manager; and
(3) provide such information and documents, including audited
financial statements, to any necessary repository or depository, but only to the extent necessary
for the underwriters of the Bonds to comply with Rule 15c2-12 of the Securities Exchange Act of
1934, as amended.
(c) Any seller of a property in the District who is otherwise required to
obtain a subdivision public report as prescribed by A.R.S. § 32-2183 shall disclose to a
prospective purchaser the existence of the District, the purpose for which the District was formed
as set forth in the resolution forming the District, the estimated tax rate and the estimated annual
tax amount that is based on applying that tax rate to a hypothetical residential property.
Section 10.3. Binding Effect. (a) Subject to Section 10.3(b), this
Agreement shall be binding upon and shall inure to the benefit of the parties to this Agreement
and their respective legal representatives, successors and assigns and the rights, title, interest,
duties, liabilities and obligations under this Agreement are attached to and run with the Property;
provided, however, that none of the parties hereto shall be entitled to assign its rights and
obligations hereunder or under any document contemplated hereby without the prior written
consent of the other parties to this Agreement, which consent shall not be unreasonably withheld.
(b) In the event of the Developer's default and forfeiture of its interest
under the Certificate of Purchase prior to the Developer acquiring all of the Property in
accordance with the Certificate of Purchase, the Developer shall, if so directed by ASLD and
without any consent or approval required from the Municipality or the District, concurrently
relinquish and assign to ASLD, coupled with an appointment of ASLD as Developer's attorney-
in-fact for such purpose, all right and interest of the Developer under this Agreement and with
respect to the District, and shall execute and deliver such further consents and documents as
ASLD may request to evidence such relinquishment and assignment. Upon Developer's
relinquishment and assignment of all right and interest of the Developer under this Agreement
and with respect to the District, Developer will be relieved of all duties, obligations, and
liabilities arising after the effective date of such relinquishment and assignment, except for any
continuing or future obligations and liabilities with respect to Bonds issued, or Projects or
Infrastructure acquired, by the District pursuant to a Report submitted by D.R. Horton, Inc. to the
District Board, and including the activities or administration of the District related thereto. The
Municipality and the District each hereby agree, in respect of ASLD's and the Developer's rights
and obligations under this Section, to take all steps necessary to accommodate the assignment
and relinquishment by the Developer. Prior to, or promptly after, such relinquishment and
assignment, D.R. Horton, Inc., shall prepare a list of Acquisition Projects or Segments thereof
that are eligible for acquisition by the District in accordance with Article IV and Article VII, and
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submit such list to the District and ASLD (the "Horton Residual Project List"). Following the
relinquishment and assignment described above, D.R. Horton, Inc. may submit Reports to the
District Board pertaining to Projects described in the Horton Residual Project List, and the
District may, in its sole discretion, issue Assessment Bonds or General Obligation Bonds to
finance the acquisition of such Projects (and any Projects that were the subject of Reports
submitted by the Developer to the District Board prior to the relinquishment and assigrunent
described above) in accordance with Section 5.2; provided that the proceeds of any General
Obligation Bonds shall be equitably allocated, in accordance with Section 2.7 of the Participation
Contract,between D.R. Horton, Inc. and any other party or parties eligible to receive proceeds of
the General Obligation Bonds. Notwithstanding the foregoing, the District shall not issue Bonds
pertaining to Reports submitted by or on behalf of D.R. Horton, Inc. related to Projects included
in the Horton Residual Project List (or Projects that were the subject of Reports submitted by the
Developer to the District Board prior to the relinquishment and assignment described above)
unless D.R. Horton, Inc. has provided financial assurances and indemnifications to the District
substantially similar to the financial assurances and indemnifications required from the
Developer under this Agreement. This Section 10.3(b) shall survive the termination of this
Agreement and may not be amended, modified, supplemented, restated, replaced, or terminated
without the prior written consent of the District, the Municipality, ASLD, and D. R. Horton, Inc.,
which consent may be given or withheld in such party's sole and absolute discretion.
(c) To the extent applicable and subject to the Participation Contract
and Section 10.3(b), upon any bankruptcy or dissolution of the Developer, the Developer's
interest herein may be assigned by a bankruptcy judge or other court of competent jurisdiction to
a subsequent purchaser, receiver or trustee, who shall have the ability to seek reimbursement
from the District's Bonds as otherwise described herein.
Section 10.4. AcknowledMent and Effect. Each party hereto shall, promptly
upon the request of any other, have acknowledged and delivered to the other any and all further
instruments and assurances reasonably requested or appropriate to evidence or give effect to the
provisions of this Agreement.
Section 10.5. Entire Agreement; No Exception to Title. This Agreement sets
forth the entire understanding of the parties as to the matters set forth herein as of the date this
Agreement is executed and cannot be altered or otherwise amended except pursuant to an
instrument in writing signed by each of the parties hereto; provided, however, that an amendment
signed by only the Developer and the District shall be effective against the Developer and the
District only if such amendment does not amend any right, benefit or obligation of the
Municipality and an amendment signed by the Developer, the District and the Municipality shall
be effective against the Developer, the District and the Municipality, as applicable, with respect
to any amendment that does amend the Municipality's rights, benefits or obligations under this
Agreement. This Agreement is intended to reflect the mutual intent of the parties with respect to
the subject matter hereof, and no rule of strict construction shall be applied against any party.
This Agreement shall not create conditions or exceptions to title to or, except with regard to
waivers, consents and other matters relating to Assessments, covenants running with any
individual lots into which the Property is subdivided. Any title insurer can rely on this Section
when issuing any commitment to insure title to any individual lot or when issuing a title
insurance policy for any individual lot. For this section"lot" shall be any lot upon which a home
1
or commercial building has been completely constructed and approved to be occupied that is
contained in a recorded subdivision plat that been approved by the Municipality or any parcel of
land conveyed to a public entity, such as a school district or fire district.
Section 10.6. Diminution in Value and Land Use Laws Waiver; Development
Not Dependent on CFQ Financing. (a) The Developer on behalf of itself and all other
parties having an interest in the Property intends to encumber the Property with the agreements
and waivers described in this Section 10.6. The Developer hereby waives and releases the
District and the Municipality from any and all claims under A.R.S. § 12-1134, et seq., including
any right to compensation for reduction to the fair market value to the Property, as a result of the
approval of this Agreement by the Municipality or the District. The terms of this waiver shall
run with the land and shall be binding upon all subsequent landowners and shall survive the
expiration or earlier termination of this Agreement.
(b) The Developer acknowledges and agrees that Developer's
development of the Property is not dependent upon the formation of the District or District
financing. The Developer is not in any manner relying, to its detriment or otherwise, on the
Municipality forming the District or, if the District is formed, to issue Bonds or, if Bonds are
issued, issue any additional series of Bonds, levy any tax or assessment, or otherwise in any
manner finance the costs of any Project.
Section 10.7. Applicable Law; Venue and Jurisdiction. The terms and
conditions of this Agreement shall be governed by and interpreted in accordance with the laws of
the State of Arizona. Any action at law or in equity brought by the parties hereto for the purpose
of enforcing a right or rights provided for in this Agreement shall be tried in a court of competent
jurisdiction in Pinal County, Arizona. The parties hereto hereby waive all provisions of law
providing for a change of venue in such proceeding to any other county. In the event a party
brings suit to enforce any term of this Agreement or to recover any damages for and on account
of the breach of any term or condition in this Agreement, it is mutually agreed that the prevailing
party in such action shall recover all costs including reasonable attorneys' fees, court costs,
expert witness fees, and other litigation related expenses to be determined by the court in such
action.
Section 10.8. Waivers. The waiver by any party hereto of any right granted to
it under this Agreement all not be deemed to be a waiver of any other right granted in this
Agreement nor shall the same be deemed to be a waiver of a subsequent right obtained by reason
of the continuation of any matter previously waived under or by this Agreement.
Section 10.9. Counterpart Executions. This Agreement may be executed in
any number of counterparts, each of which, when executed and delivered, shall be deemed to be
an original, but all of which taken together shall constitute one of the same instrument. Each
party hereto shall, promptly upon the request of any other, have acknowledged and delivered to
the other any and all further instruments and assurances reasonably requested or appropriate to
evidence or give effect to the provisions of this Agreement.
Section 10.10. Cancellation Due To Conflict of Interest. The Municipality and
the District may, within three years after its execution, cancel this Agreement, without penalty or
32
further obligation, if any person significantly involved in initiating, negotiating, securing,
drafting or creating this Agreement on behalf of the Municipality or the District, respectively, is,
at any time while this Agreement is in effect, an employee or agent of the Developer in any
capacity or a consultant to any other party of this Agreement with respect to the subject matter of
this Agreement and may recoup any fee or commission paid or due any person significantly
involved in initiating, negotiating, securing, drafting or creating this Agreement on behalf of the
Municipality or the District, respectively, from the Developer arising as the result of this
Agreement. The Developer has not taken and shall not take any action which would cause any
person described in the preceding sentence to be or become an employee or agent of the
Developer in any capacity or a consultant to any party to this Agreement with respect to the
subject matter of this Agreement.
Section 10.11. Term; Expiration. The term of this Agreement shall be as of
the date of the execution and delivery hereof by each of the parties hereto and shall expire upon
the earlier of the agreement of the District, the Municipality and the Developer to the termination
hereof, December 31, 2056, or the date on which all of the Bonds are paid in full or defeased to
the fullest extent possible pursuant to the Act.
Section 10.12. Notices. All notices, certificates or other communications
hereunder (including in the Exhibits hereto) shall be sufficiently given and shall be deemed to
have been received 48 hours after deposit in the United States mail in registered or certified form
with postage fully prepaid addressed as follows:
If to the Municipality: City of Apache Junction, Arizona
Attn: City Manager
300 E. Superstition Boulevard
Apache Junction, Arizona 85119
If to the District: Superstition Vistas Community Facilities District No. I
c/o City of Apache Junction, Arizona
Attn: City Manager
300 E. Superstition Boulevard
Apache Junction, Arizona 85119
If to Developer: D.R. Horton, Inc.
Attn: Legal Department
20410 N. I 91h Avenue, Suite 100
Phoenix, Arizona 85027
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With a copy to: Dana Stagg Belknap, Esq.
Gallagher&Kennedy, P.A.
2575 East Camelback Road
Phoenix,Arizona 85016
If to ASLD: Arizona State Land Department
Attn: State Land Commissioner
1616 W. Adams
Phoenix, Arizona 85007
With a copy to: Arizona Attorney General
Attn: Natural Resources Division
2005 N. Central Avenue
Phoenix, Arizona 85004
Any of the foregoing, by notice given hereunder, may designate different addresses to which
subsequent notices, certificates or other corrununications will be sent.
Section 10.13. Severability. If any provision of this Agreement shall be held
invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate
or render unenforceable any other provision thereof.
Section 10.14. Headings. The headings or titles of the several Articles and
Sections hereof and in The Exhibits hereto, and any table of contents appended to copies hereof
and thereof, shall be solely for convenience of reference and shall not affect the meaning,
construction or effect of this Agreement.
Section 10.15. Governing Tenns. This Agreement does not relieve any party
hereto of any obligation or responsibility imposed upon it by law; provided, further, the
provisions of this Agreement shall be subject to and governed by the terms and provisions of the
terms and provisions of this Agreement and the applicable terms and provisions of the Land
Development Agreement, Community Plan and the CFD Guidelines, as provided in Section 1.2
hereof.
Section 10.16. Recording. No later than ten (10) days after this Agreement is
executed and delivered by each of the parties hereto, the Municipality shall record a copy of this
Agreement with the County Recorder of Pinal County, Arizona. Furthermore, the Municipality
shall, on behalf of the Developer and the District, file a copy of the recorded Agreement that
contains thereon the Pinal County Recorder's Office recording information with ASLD.
Section 10.17. Materiality and Continuing Effect. Unless otherwise expressly
provided, the representations, covenants, indemnities and other agreements contained herein
shall be deemed to be material and continuing, shall not be merged and shall survive any
conveyance or transfer provided herein.
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Section 10.18. Force Majeure. No party hereto shall be considered not to have
performed its obligations under this Agreement in the event of enforced delay (an "Enforced
Delay") due to causes beyond its control and without its fault or negligence or failure to comply
with applicable laws, including, but not restricted to, acts of God, fires, floods, epidemics,
pandemics, quarantines, governor's executive orders, restrictions, embargoes, labor disputes, and
unusually severe weather or the delays of subcontractors or materialmen due to such causes, acts
of a public enemy, war, terrorism or act of terror (including but not limited to bio-terrorism or
eco-terrorism), nuclear radiation, blockade, insurrection, riot, labor strike or interruption,
extortion, sabotage, or similar occurrence or any exercise of the power of eminent domain of any
governmental body on behalf of any public entity, or a declaration of moratorium or similar
hiatus (whether permanent or temporary) by any public entity directly affecting the obligations
under this Agreement. In no event will an Enforced Delay include any delay resulting from
unavailability for any reason of labor shortages, or the unavailability for any reason of particular
contractors, subcontractors, vendors or investors desired by the Developer in connection with the
obligations under this Agreement. In the event of the occurrence of any such Enforced Delay,
the time or times for performance of the obligations of the party claiming delay shall be extended
for a period of the Enforced Delay; provided, however, that the party seeking the benefit of the
provisions of this Section shall, within thirty(30) calendar days after such party knows or should
know of any such Enforced Delay, first notify the other parties of the specific delay in writing
and claim the right to an extension for the period of the Enforced Delay; and provided further
that in no event shall a period of an Enforced Delay exceed ninety(90) calendar days.
Section 10.19. Consent. Whenever the consent or approval of any party hereto,
or of any agency therefor, shallbe required under the provisions hereof, such consent or approval
shall not be unreasonably withheld, conditioned or delayed unless specifically otherwise limited
as provided herein.
Section 10.20.City Council/District Board Final Actions; Remedies and
Arbitration. (a-) Notwithstanding any provision of this Agreement to the contrary,
no act, requirement, payment, or other agreed upon action to be done or performed by the
Municipality or the District shall be required to be done or performed by the Municipality or the
District, respectively, unless and until said formal action of the City Council and the District
Board, respectively, has been taken and completed. This Agreement in no way acquiesces to or
obligates the Municipality or the District to perform a legislative act.
(b) Failure or unreasonable delay by any party to perform or otherwise
act in accordance with any term or provision of this Agreement for a period of thirty (30) days
(hereinafter referred to as the "Cure Period') after written notice thereof from any other party,
shall constitute a default under this Agreement; provided, however, that if the failure or delay is
such that more than thirty (30) days would reasonably be required to perform such action or
comply with any term or provision hereof, then such party shall have such additional time as
may be necessary to perform or comply so long as such party commences performance or
compliance within said thirty (30) day period and diligently proceeds to complete such
performance or fulfill such obligation. Said notice shall specify the nature of the alleged default
and the manner in which said default may be satisfactorily cured, if possible. In the event such
default is not cured within the Cure Period, any non-defaulting party shall have all rights and
remedies that are set forth in the next subsection.
35
(c) Except as provided in subsection(b), the parties shall be limited to
the remedies and the dispute resolution procedure set forth in this subsection and subsection(d).
Any decision rendered by the Panel (as hereinafter defined) pursuant to the provisions of
subsection (d) shall be binding on the parties unless and until a court of competent jurisdiction
renders its final decision on the disputed issue, and if any party does not abide by the decision
rendered by the Panel during the pendency of an action before the court of competent jurisdiction
or otherwise (if no court action), any other party may institute an action for money damages on
the issues that were the subject of the Panel's decision and/or any other relief as may be
permitted by law.
(d) (1) If an event of default is not cured within the Cure Period,
any non-defaulting party may institute the dispute resolution process set forth in this subsection
(hereinafter referred to as the "Process") by providing written notice initiating the Process
(hereinafter referred to as the"Initiation Notice") to the defaulting party.
(2) Within fifteen (15) days after delivery of the Initiation
Notice, each involved party shall appoint one person to serve on an arbitration panel (herein
referred to as the "Panel"). Within twenty-five (25) days after delivery of the Initiation Notice,
the persons appointed to serve on the Panel shall themselves appoint a separate neutral person to
serve as a member of the Panel. Such person shall function as the chairman of the Panel.
(3) The remedies available for award by the Panel shall be
limited to specific performance, declaratory relief and injunctive relief.
(4) Any party can petition the Panel for an expedited hearing if
circumstances justify it. Such circumstances shall be similar to what a court would view as
appropriate for injunctive relief or temporary restraining orders. In any event, the hearing of any
dispute not expedited shall commence as soon as practicable, but in no event later than forty-five
(45) days after selection of the chairman of the Panel. This deadline can be extended only with
the consent of all parties to the dispute or by decision of the Panel upon a showing of emergency
circumstances.
(5) The chairman of the Panel shall conduct the hearing
pursuant to the Center For Public Resources' Rules for Non-Administered Arbitration of
Business Disputes then in effect. The chairman of the Panel shall determine the nature and scope
of discovery, if any, and the manner of presentation of relevant evidence, consistent with the
deadlines provided herein, and the parties' objective that disputes be resolved in a prompt and
efficient manner. No discovery may be had of privileged materials or information. The
chairman of the Panel upon proper application shall issue such orders as may be necessary and
permissible under law to protect confidential, proprietary or sensitive materials or information
from public disclosure or other misuse. Any party may make application to the Pinal County
Superior Court (hereinafter referred to as the "Court") to have a protective order entered as may
be appropriate to confirm such orders of the chairman of the Panel.
(6) The hearing, once commenced, shall proceed from business
day to business day until concluded, absent a showing of emergency circumstances. Except as
36
otherwise provided herein, the Process shall be governed by the Uniform Arbitration Act as
enacted in the State.
(7) The Panel shall, within fifteen (15) days from the
conclusion of any hearing, issue its decision. The decision shall be rendered in accordance with
this Agreement and the laws of the State.
(8) Any involved party may appeal the decision of the Panel to
the Court for a de novo review of the issues decided by the Panel, if such appeal is made within
thirty(30) days after the Panel issues its decision. The remedies available for award by the Court
shall be limited to specific performance, declaratory relief and injunctive relief. The decision of
the Panel shall be binding on both parties until the Court renders a binding decision. If a non-
prevailing party in the Process fails to appeal to the Court within the time frame set forth herein,
the decision of the Panel shall be final and binding. If one party does not comply with the
decision of the Panel during the pendency of the action before the Court or otherwise, then
another party shall be entitled to exercise all rights and remedies that may be available under law
or equity, including without limitation the right to institute an action for money damages related
to the default that was the subject of the Panel's decision and the provisions of this subsection
shall not apply to such an exercise of rights and remedies.
(9) All fees and costs associated with the Process before the
Panel, including without limitation the fees of the Panel, other fees, and the prevailing party's
attorneys' fees, expert witness fees and costs, shall be paid by the non-prevailing party or parties.
The determination of prevailing and non-prevailing parties, and the appropriate allocation of fees
and costs, shall be included in the decision by the Panel. Similarly, all fees and costs associated
with an appeal to the Court or any appellate court thereafter, including without limitation, the
prevailing party's attorneys' fees, expert witness fees and costs, shall be paid by the non-
prevailing party. The determination of prevailing and non-prevailing parties, and the appropriate
allocation of fees and costs, shall be included in the decision by the Court.
Section 10.21. No Boycott of Israel. To the extent applicable, the Developer
certifies that it is not currently engaged in, and agrees for the duration of this Agreement that it
will not engage in a "boycott," as that term is defined in § 35-393, Arizona Revised Statutes, of
Israel.
Section 10.22. E-verify Compliance. To the extent applicable under A.R.S. §
41-4401, the Developer and its subcontractors warrant compliance with all federal immigration
laws and regulations that relate to their employees and their compliance with the E-verify
requirements under A.R.S. § 23-214(A). The Developer's or its subcontractor's failure to
comply with such warranty shall be deemed a material breach of this Agreement and may result
in the termination of this Agreement by the District.
Section 10.23. SMCFD and VvrUCFD. (a) The parties to this Agreement
anticipate that certain Projects will be accepted by SMCFD (generally, sewer Projects) or
VV'UCFD (generally, potable and non-potable water Projects) (the "Utility Projects" or "Utility
Acquisition Project"), and not accepted by the Municipality. In connection with such Utility
Projects:
37
(1) SMCFD or WUCFD, as applicable, will review any Plans
and Specifications for the Utility Projects.
(2) The Utility Projects will be subject to the Public
Procurement Requirements, including the procurement policies of SMCFD or WUCFD, as
applicable, pertaining to projects similar to the Utility Projects. Construction Contracts shall be
entered into with the respondent selected in accordance with the requirements of awarding
contracts pursuant to the Public Procurement Requirements and the requirements of SMCFD or
WUCFD, as applicable.
(3) The District Manager may appoint an engineer of SMCFD
or WUCFD as the District Engineer in connection with such Utility Projects.
(4) Construction Contracts relating to such Utility Projects
shall provide that the respective contractors or vendors shall not have recourse, directly or
indirectly, to SMCFD or WUCFD, as applicable. Construction Contracts and the construction of
Utility Projects shall be in accordance with the requirements for constructing projects of SMCFD
or WUCFD, as applicable. Neither SMCFD nor WUCFD will bear any risks, liabilities,
obligations or responsibilities under any contract to prepare Plans and Specifications, under any
Construction Contract for Utility Projects, or any risk of loss of or damage to any Utility Project
(or any part thereof) occurring prior to the later of: the time of acceptance by SMCFD or
WUCFD, as applicable, or the time of acquisition by the District of such Utility Project (or part
thereof)pursuant to Article IV.
(5) With respect to any Utility Project, SMCFD or WUCFD, as
applicable, shall be named as an insured on any and all insurance policies required under the bid
specifications for procurement of the pertinent Plans and Specifications or the procurement and
contract terms of a Construction Contract, and as a third party beneficiary with respect to all
bonds, warranties and guarantees with respect to the Utility Projects. The District Manager shall
direct that any Construction Contract or Plans and Specifications for Utility Projects shall
provide for the assignment of all insurance, warranties, guarantees and owner's rights to SMCFD
or WUCFD, as applicable,upon the District's acquisition of the Utility Projects.
(6) With respect to any change order described in Section 3.5
pertaining to a Utility Project, the District Manager shall confirm compliance with the
requirements of SMCFD or V%7UCFD, as applicable,prior to approving such change order.
(7) With respect to the acquisition of any Necessary Public
Property in connection with Utility Projects, the type, size and terms of the Necessary Public
Property shall be in compliance with the requirements for public infrastructure projects of
SMCFD or V%TUCFD similar to the Utility Project. Prior to any conveyance or dedication of
Necessary Public Property to SMCFD or VvUCFD, the District Manager shall confirm with
SMCFD or VvUCFD as to the sufficiency of the materials received pursuant to Section 2.5. Prior
to the District Manager directing the conveyance or dedication of any Necessary Public Property
in accordance with Sections 4.2 and 4.3 pertaining to any Utility Acquisition Projects, the
38
District Manager shall confirm with SMCFD or )VUCFD, as applicable, as to the fulfillment of
any requirements of SMCFD or W`UCFD for such conveyance or dedication.
(8) Prior to the District paying the Construction Cost or
Segment Price, as applicable, and acquiring a Utility Acquisition Project or Segment, the District
Manager shall confirm fulfillment of the requirements in Section 4.3 to the satisfaction of
SMCFD or VY`UCFD, as applicable.
(9) For any Utility Projects to be accepted by either of SMCFD
or VVUCFD, the District Manager shall, in accordance with the provisions of Section 7.1, receive
confirmation from SMCFD or VVUCFD, as applicable, as to acceptance of the Utility Projects
before such Utility Projects are eligible for reimbursement from proceeds of the District's Bonds.
(b) For purposes of Article VIII, each of SMCFD and V%TUCFD are
anticipated to accept Infrastructure and should be named as additional insureds pursuant to
Sections 8.3 and 8.4 in connection with Utility Projects.
(c) Each of SMCFD and VVUCFD shall be third-party beneficiaries of
the provisions hereof which grant rights and obligations to them.
IN WITNESS WHEREOF, the officers of the Municipality and of the District
have duly affixed their signatures and attestations, and the officers of the Developer their
signatures, all as of the day and year first written above.
[Signature Pages to Follow]
39
CITY OF APACHE JUNCTION, ARIZONA,
a municipal corporation
By:
Walter"Chip" Wilson, Mayor
STATE OF ARIZONA
)ss.
COUNTY OF PINAL
The foregoing instrument was acknowledged before me this day of
2021, by Walter "Chip" Wilson, as Mayor of the City of Apache Junction,
Arizona, a municipal corporation under the laws of the State of Arizona.
Notary Public
(Affix Seal Here)
ATTEST:
Jennifer Pena, City Clerk
Pursuant to A.R.S. Section I I-952(D), this
Agreement has been reviewed by the
undersigned attorney for the Municipality
who has determined that this Agreement is
in proper form and is within the powers and
authority granted pursuant to the laws of this
State to the Municipality.
Richard Joel Stem, City Attorney
40
[Signature Page to Superstition Vistas Community Facilities District No. I
District Development, Financing Participation,
Waiver and Intergovernmental Agreement]
SUPERSTITION VISTAS COMMUNITY
FACILITIES DISTRICT NO. 1
By:
Walter "Chip" Wilson, Chairman, District
Board
STATE OF ARIZONA
)ss.
COUNTY OF PINAL
The foregoing instrument was acknowledged before me this day of
1 2021, by Walter "Chip" Wilson, as Chairman of the Board of Directors of
Superstition Vistas Community Facilities District No. 1, an Arizona community facilities district.
Notary Public
(Affix Seal Here)
ATTEST:
Jennifer Pena, District Clerk
Pursuant to A.R.S. Section 11-952(D), this
Agreement has been reviewed by the
undersigned attorney for the District, who
has determined that this Agreement is in
proper form and is within the powers and
authority granted pursuant to the laws of this
State to the District.
Richard Joel Stern, District Counsel
41
[Signature Page to Superstition Vistas Community Facilities District No. I
District Development, Financing Participation,
Waiver and Intergovernmental Agreement]
DEVELOPER:
D.R. HORTON, INC., a Delaware corporation
By:
Name:
Its:
CORPORATE APPROVAL:
D.R. HORTON, INC., a Delaware corporation
By:
Name:
Its:
STATE OF )
)ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
2021, by , the of D.R.
Horton, Inc., a Delaware corporation.
(Seal and Expiration Date)
Notary Public in and for the State of
STATE OF )
)ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this w day of
, 2021, by the of D.R.
Horton, Inc., a Delaware corporation.
(Seal and Expiration Date)
Notary Public in and for the State of
42
[Signature Page to Superstition Vistas Community Facilities District No. 1
District Development, Financing Participation,
Waiver and Intergovernmental Agreement]
ACKNOWLEDGMENT AND CONSENT OF SMCFD AND WUCFD
Reference is made to that certain District Development, Financing Participation, Waiver
and Intergovernmental Agreement, dated as of 9 2021 (the "CFD Development
Agreement"), by and among the City of Apache Junction, Arizona (the "Municipality"),
Superstition Vistas Community Facilities District No. I (the "District"), and D.R. Horton, Inc.
(the "Developer"), to which this Acknowledgment and Consent (this "Acknowledgment and
Consent") is attached. All capitalized terms used and not otherwise defined in this
Acknowledgment and Consent shall have the meanings set forth in the CFD Development
Agreement, or, as applicable, the Intergovernmental Agreement by and among the Apache
Junction Water Utilities Community Facilities District, the Superstition Mountains Community
Facilities District No. 1, the Superstition Vistas Community Facilities District No. I and the
Superstition Vistas Community Facilities District No. 2 Pertaining to Community Facilities
District Operations, Infrastructure and Financings, dated as of_, 2021 and recorded __,
2021, in the Official Records of the Pinal County Recorder as Instrument No. (the
"IGA"). The undersigned representatives of SMCFD and WUCFD have had the opportunity and
right to review the terms and provisions of the CFD Development Agreement and the General
Plan of the District, and, in accordance with the IGA, SMCFD and WUCFD each hereby
acknowledges and consents to the terms of Section 10.23 of the CFD Development Agreement,
including, without limitation, accepting Infrastructure acquired by the District in accordance with
the CFD Development Agreement and A.R.S. Title 48, Chapter 4, Article 6, as amended.
43
Dated: 2021
APACHE JUNCTION WATER UTILITIES
COMMUNITY FACILITIES DISTRICT,
an Arizona community facilities district
By:
Walter "Chip" Wilson, Chairman, Board of
Directors
STATE OF ARIZONA
)ss.
COUNTY OF PINAL
The foregoing instrument was acknowledged before me this day of
2021, by Walter "Chip" Wilson, as Chairman of the Board of Directors of the
Apache Junction Water Utilities Community Facilities District, an Arizona community facilities
district.
Notary Public
ATTEST:
Jennifer Pena, District Clerk
SUPERSTITION MOUNTAINS COMMUNITY
FACILITIES DISTRICT NO. 1,
an Arizona community facilities district
By:
Kathleen Waldron, Chairperson,
Board of Directors
STATE OF ARIZONA
ss.
COUNTY OF PINAL
The foregoing instrument was acknowledged before me this day of
2021, by Kathleen Waldron, as the Chairperson of the Board ofYirectors of
Superstition Mountains Community Facilities District No. 1, an Arizona community facilities
district.
Notary Public
44
[Signature Page to Acknowledgment and Consent of SMCFD and WUCFD]
ATTACHMENTS TO DISTRICT DEVELOPMENT, FINANCING PARTICIPATION,
WAIVER AND INTERGOVERNMENTAL AGREEMENT:
EXHIBIT A - Legal Description Of The Property To Be Included in the District
EXHIBIT B - Description Of Infrastructure
EXHIBIT C - Form Of Certificate Of Engineers For Conveyance Of Acquisition Project
or Segment Of Project
EXHIBIT D - Form Of Conveyance Of Acquisition Project or Segment Of Project
EXHIBIT E - Form Of Disclosure Statement
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
TO BE INCLUDED IN THE DISTRICT
A-1
Wood, Patel &Associates, Inc. Revised March 9, 2021
480.834.3300 January 8, 2021
www.woodpatel.com WP#205166.01
Page 1 of 4
See Exhibit"A"
LEGAL DESCRIPTION
Superstition Vistas
D.R. Horton Parcel
General Land Office (GLO) Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, a portion of GLO Lot 12 and a
portion of the east half of Section 18 and GLO Lots 3,4, 5, 6, 7, 8, 9, 10, 11, 12, a portion of GLO
Lots I and 2 and a portion of the east half of Section 19, and a portion of the north half of Section
30, Township 1 South, Range 8 East, of the Gila and Salt River Meridian, Pinal County,Arizona,
more particularly described as follows:
BEGINNING at the northeast corner of said Section 18, a 3-inch Pinal County brass cap in
handhole,from which the east quarter comer of said Section 18, a 3-inch Pinal County brass cap
in handhole, bears South 00"13'51" East(basis of bearing), a distance of 2639.88 feet;
TH ENCE along the east line of said Section 18, South 000 13'51" East,a distance of 2639.88 feet,
to said east quarter corner;
THENCE South 00*17'10" East, a distance of 155.64 feet, to the northerly line of that certain
Maricopa County Flood Control District Easement, recorded in Document 2011-062136, Pinal
County Records (PCR);
THENCE leaving said east line, along said northerly line, South 53*29'26" West, a distance of
4200.33 feet, to the south line of said Section 18;
THENCE leaving said south line, South 53*29'13"West, a distance of 910.07 feet,
THENCE leaving said northerly line, South 82*28'36" East, a distance of 583.29 feet, to the
beginning of a curve;
THENCE easterly along said curve to the left, having a radius of 3000,00 feet, concave northerly,
through a central angle of 30*39'58", a distance of 1605.68 feet, to the curves end;
THENCE North 66*51'25" East, a distance of 540.51 feet, to the beginning of a curve;
THENCE easterly along said curve to the right, having a radius of 2500.00 feet, concave
southerly,through a central angle of 22'55'06",a distance of 1000.00 feet,to the north line of said
Section 19 and the curves end;
THENCE along said north line, North 89*46'31" East, a distance of 500.00 feet,to the northeast
comer of said Section 19;
THENCE leaving said north line, along the east line of said Section 19, South 00'17'35" East, a
distance of 2641.12 feet, to the east quarter corner of said Section 19;
THENCE South 00*1 T01"East,a distance of 2640.28 feet,to the southeast comer of said Section
19;
THENCE leaving said east line, along the south line of said Section 19, South 89*44'56"West, a
distance of 702.14 feet, to the beginning of a curve;
THENCE leaving said south line,westerly along said curve to the left,having a radius of 10000.00
feet, concave southerly, through a central angle of 11*1639", a distance of 1968.29 feet, to the
beginning of a reverse curve;
A-2
Legal Description Revised March 9, 2021
Superstition Vistas January 8, 2021
Horton rcl WP#205166.01
Page 2 of 4
See Exhibit" "
THENCE westerly along said reverse curve to the right,having a radius of 10000.00 feet,concave
northerly,through a central angle of 11*5 '03%a distance of 2082.89 feet,to the curves end;
THENCE North 8 °35' 0" West, a distance of 1421.78 feet, to the southeast comer of Section
24,Township 1 South, Range 7 East, of the Gila and Salt River Meridian;
THENCE along the east line of said Section 2 ,North 0° '07West,a distance of 2635,59 feet,
to the east quarter comer of said Section 4;
THENCE North 00°37' " West, a distance of 2633.61 feet, to the southeast comer of Section
13,Township 1 South, Range 7 East, of the Gila and Salt RiverMeridian;
THENCE leaving said east line, along the east line of said Section 13, North 0003 '46"West, a
distance of 267. 5 feet,to the east quarter comer of said Section 13;
THENCENorth 00°37'5 " West, a distance of 2637.66 feet, to the southeast corner of Section
12,Township 1 South, Range 7 East,of the Gila and Salt RiverMeridian;
THENCE leaving said east line, along the east line of said Section 12, North 0°39'0 "West, a
distance of 75.01 feet;
THENCE leaving said east line, South °37°0 " East, a distance of 1403.26 feet, to a point of
intersection with a non-tangent curve;
THENCE southerly along said non-tangent curve to the left, having a radius of 1057.78 feet,
concave easterly,whose radius bears South 7°35'14"East,through a central angle of 04°03' ",
a distance of 75. 2 feet,to a point of intersection with a non-tangent curve;
THENCE easterly along said non-tangent curve to the left, having a radius of 10000.00 feet,
concave northerly,whose radius bears North 00° °43"East,through a central angle of 12°09'5 ",
a distance of 212 . 5 feet,to the beginning of a reverse curve;
THENCE easterly along said reverse curve to the right,having a radius of 10000.00 feet,concave
southerly,through a central angle of 11°33'02",a distance of 2015.94 feet,to the north line of said
Section 18 and the curves end;
THENCE along said north line, North 9*45'45"East,a distance of 703.03 feet,to the POINT OF
BEGINNING.
Containing 59,882,032 square feet or 1,374.7023 acres, more or less.
Subject to existing right-of-ways and easements.
This parcel description is based on client provided information and is located within an area
surveyed by Wood, Patel & Associates, Inc. during the month of December, 2020. Any
monumentation noted in this parcel description is within acceptable tolerance (as defined in
Arizona Boundary Survey Minimum Standards dated 02/1 /2002)of said positions based on said
survey.
23945m
BRIAN J.
Lo DIE hL �EX P 09-30-23
A-3
NORTHEAST CORNER
SECTION 1 ,T1 S,R8E
ELLIOT ROAD/ 3"PINAL COUNTY BCH
C5 C7 1-1 PO
L16- L17— C6— ,,
LT 3 LOT 2
.LOT 1 "'" � ��a�fl •
- ' SEC 18 J
�'
®, Tl S,R8E
LOT LOT 5 y
4 LOT
6 ,
L2 ''
a °` SEC 17
LOT ° � .. T1S,R8E
9 LOT 8 LOT 7 f
_ _ EAST 114 CORNER
._
SECTION 18,T1S,R8E
J LOT 1 I LOT 2 3"PINAL COUNTY BCH LOT
10
L4 rC 2 L7 OARNER ROAJ
L5
LOT LOT 2` LOT 1f
/✓ 06, 0
-
J LOT LOT 5 J LOT 6 �w
SEC 19
..�" � T1S,R8E O
LOT a SEC 20 l0
g LOT 8 LOT 7 J' T1S,RE
N d A A
11 LOT LOT 11 �+
LOT 12 '
0
' 10
Lll C4 C3 L10RAY D
LAN
Bey 1VICAt� �` EXHIBIT "All
��
23945 m SUPERSTITION VISTAS
D.R. OT PARCEL
oil 03109/2021
seed P 20516.01
A, � PAGE 3 OF
NOT TO SCALE
09.30-23 Z:V020\205166\SurveylLe al\5166-LO1 ROI.dwg
A-4
LINE TABLE CURVE TABLE
LINE BEARING DISTANCE CURVE DELTA RADIUS ARC
L1 0 "13'51" 2639.88' C1 30'39'58" 3000. 0' 16 5,6 '
L2 - S0 "17'10"E 155. ' C2 22055'06" 2500.00' 10 0, 0'
L3 S53®2 '2 " 4200.33' C3 11"16'39" 1000 , 168.29'
L4 S53*29'13"W 9MOT C4 11 05 '0 " 10000,00' I', 2082. '
L5 8 ®28'36"E 58 .29' C5 4"03'48" 1 57,78' 75.02'
L6 N 6*51'25"E 54 .51° C6 12®09'59" 10000,00' 212145'
L7 N89"4 ' 1"E 5 0.00' C7 11®33'02" 1 00. ' 2015.94'
-------------------
L8-- 00'17135"E 641.12°
L9 S0 °17' 1" 2 0, 8'
- L10 89®44'56" 7 2,14'
Lll 89*35'40" 141,78'
L12 N00038'07"W2635.59'
L13 N00®37' " 26 . 1'
L14 00" 9'46" 237.4 '
L15 0®37'58" 2 37.6 '
L16 00" 9'0 " 75,01'
L17 S89@7'0 "E 140126'
L18 N89°45'45"E 73.0 '
LAIV
�Qt4F��AT� n
co 23945 SUPERSTITION VISTAS
BRIAN J. D.R.HORTON PARCEL
®IEH1 03109/2021
P 201 . 1
�A, ° PAGE 4 OF 4
NOT TO SCALE
s 23 Z:1202012051661Survey\Le all 1 6-L01 ROl,dwg
A-5
EXHIBIT B
DESCRIPTION OF INFRASTRUCTURE
(a) Sanitary sewage systems, including collection, transport, storage,
treatment, dispersal, effluent use and discharge.
(b) Drainage and flood control systems, including collection, transport,
diversion, storage, detention, retention, dispersal, use and discharge.
(c) Water systems for domestic, industrial, irrigation, municipal or fire
protection purposes, including production, collection, storage, treatment, transport, delivery,
connection and dispersal, but not including facilities for agricultural irrigation purposes unless
for the repair or replacement of existing facilities when required by other improvements
permitted by A.R.S. Title 48, Chapter 4, Article 6.
(d) Highways, streets, roadways and parking facilities, including all areas for
vehicular use for travel, ingress, egress and parking.
(e) Areas for pedestrian, equestrian,bicycle or other nonmotor vehicle use for
travel, ingress, egress and parking.
(f) Pedestrian malls,parks, recreational facilities other than stadiums, and
open space areas for the use of members of the public for entertainment, assembly and
recreation.
(g) Landscaping, including earthworks, structures, lakes and other water
features, plants, trees and related water delivery systems.
(h) Public buildings, public safety facilities and fire protection facilities.
(i) Lighting systems.
0) Traffic control systems and devices, including signals, controls, markings
and signage.
(k) Equipment, vehicles, furnishings and other personalty related to the items
listed in this Exhibit B.
(1) Any other public infrastructure now or hereafter included in the definition
of"Public Infrastructure" in A.R.S. Title 48, Chapter 4, Article 6.
(m) Operation and maintenance of the items listed in clauses (a) through and
including (1) above.
B-1
EXHIBIT C
FORM OF CERTIFICATE OF ENGINEERS FOR
CONVEYANCE OF ACQUISITION PROJECT
OR SEGMENT OF ACQUISITION PROJECT
CERTIFICATE OF ENGINEERS FOR CONVEYANCE OF SEGMENT OF
ACQUISITION PROJECT
(insert description of Acquisition Project/Segment)
STATE OF ARIZONA
COUNTY OF PINAL
CITY OF APACHE JUNCTION ss.
SUPERSTITION VISTAS
COMMUNITY FACILITIES
DISTRICT NO. I
We the undersigned, being Registered Engineers in the State of Arizona and,
respectively, the duly appointed District Engineer for Superstition Vistas Community Facilities
District No. I (the "District"), and the engineer employed by D.R. Horton, Inc. (hereinafter
referred to as the "Developer"), each hereby certify for purposes of the District Development,
Financing Participation, Waiver and Intergovernmental Agreement, dated as of 12021
(the "Development Agreement"), by and among the District, the City of Apache Junction,
Arizona, and D.R. Horton, Inc., a Delaware corporation, as the Developer, that:
1. The Acquisition Project or Segment indicated above has been completed
in substantial accordance with the Plans and Specifications (as such term and all of the other
initially capitalized terms in this Certificate are defined in the Development Agreement) and the
Acquisition Project Construction Contract (as modified by any change orders permitted by the
Development Agreement) for such Acquisition Project or Segment.
2. The Segment Price as publicly bid and including the cost of approved
change orders for such Segment is $
3. The Developer provided for compliance with the requirements for public
bidding for such Acquisition Project or Segment as required by the Agreement (including,
particularly but not by way of limitation, Title 34, Chapter 2, Article 1, Arizona Revised Statutes,
as amended) in connection with the award of the Acquisition Project Construction Contract for
such Acquisition Project or Segment.
4. The Developer filed all construction plans, specifications, contract
documents, and supporting engineering data for the construction or installation of such
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Acquisition Project or Segment with the District Engineer and the Municipality or other
governmental entity, as applicable.
5. The Developer obtained and has supplied to the District evidence of good
and sufficient performance and payment bonds or such other equivalent payment and
performance financial guarantees acceptable to the District Manager and the District Engineer in
connection with such Acquisition Project or Contract.
DATED AND SEALED THIS DAY OF 20_
By
District Engineer
[P.E. SEAL]
[P.E. SEAL] By
Engineer for the Developer
[Confirmed for purposes of Section 3.5 of the
Development Agreement by
District Manager for Superstition Vistas
Community Facilities District No. I']
[THIS WILL BE REQUIRED
FOR E VER Y SEGMENT A CQ UIRED
WITH PROCEEDS OF THE
SALE OF THE BONDS]
To be inserted if the provisions of Section 3.5 of the Development Agreement are applicable to the
respective Segment of the Project.
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EXHIBIT D
FORM OF CONVEYANCE OF SEGMENT OF ACQUISITION PROJECT
CONVEYANCE OF SEGMENT OF ACQUISITION PROJECT
(Insert description of Acquisition Project/Segment)
STATE OF ARIZONA
COUNTY OF PINAL
CITY OF APACHE JUNCTION ss.
SUPERSTITION VISTAS
COMMUNITY FACILITIES
DISTRICT NO. 1
KNOW ALL MEN BY THESE PRESENTS THAT:
D.R. Horton, Inc. (the "Developer"), in consideration of the promise to pay
[INSERT ACQUISITION PROJECT CONSTRUCTION COST OR SEGMENT PRICE, AS
APPLICABLE] to the Developer by Superstition Vistas Community Facilities District No. 1, a
community facilities district formed by the City of Apache Junction, Arizona (the
"Municipality"), and duly organized and validly existing pursuant to the laws of the State of
Arizona (the "District"), such amount in accordance with the hereinafter described Development
Agreement, does by these presents grant, bargain, sell and convey to the District, its successors
and assigns or, at the request of the District, to the Municipality (or other governmental entity),
all right, title and interest in and to the following described property, being the subject of a
District Development, Financing Participation, Waiver and Intergovernmental Agreement, dated
as of ' 2021 (the"Development Agreement"),by and among D.R. Horton, Inc., a Delaware
corporation, as the Developer, the Municipality and the District, as follows:
[Insert description of Acquisition Project/Segment]
together with any and all benefits, including warranties and performance and payment bonds,
under the Acquisition Project Construction Contract (as such terms are defined in such
Development Agreement) or relating thereto, all of which are or shall be located within public
rights-of-way, public utility or other public easements dedicated or dedicated by map of
dedication, plat or otherwise, free and clear of any and all liens, easements, restrictions,
conditions, or encumbrances affecting the same [, such subsequent dedications not affecting the
promise of the District to hereafter pay the amounts described in such Development
Agreement2], but subject to all reservations in patents, all easements, rights-of-way,
encumbrances, liens, covenants, conditions and restrictions to which reference is made in the
'Insert with respect to any acquisition financed pursuant to Section 5.2(a)of the Development
Agreement.
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public record including all obligations, leases, liabilities and other matters of record or as set
forth on Schedule 1 hereto (collectively, the "Property").
TO HAVE AND TO HOLD the Property, as described above, unto the
Municipality [or other governmental entity], its successors and assigns forever; and the
Developer does hereby bind itself and its successors and assigns to forever warrant and defend
the title against the acts of the Developer and no others, subject to the matters set forth above.
The Developer further binds itself and its successors and assigns to execute and
deliver at the request of the District such other or additional instruments of transfer, bills of sale,
conveyances or other instruments or documents which may be necessary or desirable to evidence
more completely or to perfect the conveyance to the District of the Property as described above,
subject to the matters set forth above.
This Conveyance is made pursuant to such Development Agreement and the
Developer hereby agrees that the amounts specified above and paid [or promised to be paid] to
the Developer hereunder satisfy in full the obligations of the District under such Development
Agreement and hereby releases the District from any further responsibility tomake payment to
the Developer under such Development Agreement except as above provided.
The Developer, in addition to the other representations and warranties herein,
specifically makes the following representations and warranties:
1. The Developer has the full legal right and authority to make the sale,
transfer, and assignment herein provided.
2. The Developer is not a party to any written or oral contract which
adversely affects this Conveyance.
3. The Developer is not subject to any bylaw, agreement, mortgage, lien,
lease, instrument, order, judgment, decree, or other restriction of any kind or character which
would prevent the execution of this Conveyance.
4. The Developer is not engaged in or threatened with any legal action or
proceeding, nor is it under any investigation, which prevents the execution of this Conveyance.
5. The person(s) executing this Conveyance on behalf of the Developer has
full authority to do so, and no further official action need be taken by the Developer to validate
this Conveyance.
6. The facilities conveyed hereunder are all located within public
rights-of-way or public utility or other public easements dedicated by deed or dedicated by map
of dedication, plat or otherwise.
' Insert with respect to any acquisition financed pursuant to Section 5.2(a)of the Development
Agreement.
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IN WITNESS WHEREOF, the Developer has caused this Conveyance to be
executed and delivered this day of , 20®.
y
Title
STATE OF ARIZONA
ss.
COUNTY OF
This instrument was acknowledged before me o , 20 by
of a on behalf of said
corporation.
Notary Public
Typed/Printed Name of Notary
(Affix Seal ere)
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EXHIBIT E
FORM OF DISCLOSURE STATEMENT
SUPERSTITION VISTAS COMMUNITY FACILITIES DISTRICT NO. 1
DISCLOSURE STATEMENT
D.R. Horton, Inc., a Delaware corporation ("Developer"), in conjunction with the City of
Apache Junction, Arizona (the "City"), have established a community facilities district (the
"CFD")within the planned community development known as Superstition Vistas. The CFD has
financed and, in the future, will finance certain public infrastructure improvements, which will
result in a property tax liability and a separate special assessment lien liability for each
residential property owner in Superstition Vistas.
HOW THE CFD WORKS
On October 5, 2021, the Mayor and Council of the City formed the CFD consisting of
approximately 1,375 acres of land. An election was held on _, 2021, at which time the
owners of the property within the CFD voted to authorize up to $400,000,000 of ad valorem tax
bonds to be issued over time by the CFD to finance the acquisition or construction of public
infrastructure improvements benefitting principally land within the CFD. The proceeds of
separate special assessment revenue bonds will be used to finance acquisition or construction
of public infrastructure improvements benefitting principally designated areas within the CFD.
Such improvements have been or will be dedicated to the City or other governmental entity
upon acquisition or construction of such public infrastructure by the CFD. The City or other
governmental entity will operate and maintain such improvements.
WHAT WILL BE FINANCED?
The CFD has been established to finance, at the request of Developer, not more than
$350,000,000 in public infrastructure improvements within the CFD, including financing
costs related to such improvements, through ad valorem tax bonds to be issued to finance the
acquisition and construction of public infrastructure benefitting principally land within the CFD.
[The CFD issued $_,_,000 of its General Obligation Bonds, Series 20 on
20—.
In addition, a special assessment bond has been issued in the amount of$_,_,000 to finance
the acquisition of completed public infrastructure, consisting of roadway, sewer, water, storm
drain, signage, street light, landscape and related improvements benefitting principally the
land area depicted on Attachment I hereto ("Assessment District —"). The lot and
residence for which this Disclosure Statement is provided is located in Assessment District—..
Developer may be reimbursed from CFD bond proceeds for eligible public infrastructure
improvements for up to ten (10) years after the date of acceptance of such infrastructure by the
City or other governmental entity.
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PROPERTY OWNERS' TAX AND ASSESSMENT LIABILITY
The obligation to retire the ad valorem tax bonds will become the responsibility of all
property owners in the CFD through the payment of ad valorem property taxes collected by the
Pinal County Treasurer in addition to all other property tax payments. The CFD has levied a
fiscal
per $100.00 of net assessed limited property value tax rate for the District's current f
year 20-- 20__ to provide for repayment of the ad valorem tax bonds. The CFD has also
levied up to a $0.30 per $100.00 of net assessed limited property value tax rate to provide
for the payment of certain administrative expenses and operation and maintenance of the
public infrastructure improvements financed by the CFD ("O/M Tax").
Although the ad valorem tax rate levied by the CFD to retire the ad valorem tax bonds is
not limited by law, beginning this fiscal year, the rate of the ad valorem tax is not expected to
exceed a rate of$3.30 per $100.00 of net assessed limited property value for as long as any
ad valorem tax bonds are outstanding. However, in the event of declining assessed values
or significant delinquencies in the collection of ad valorem taxes, the ad valorem tax rate
could increase above the rate that would generate the same levy as would have been generated
under a rate of $3.30 per $100.00 of net assessed limited property value. Accordingly,
there can be no guarantee ad valorem tax rates will not be increased, and may be
increased significantly, to provide for repayment of such ad valorem tax bonds in the
future. Developer is acquiring certain land within the boundaries of the District from the
Arizona State Land Department. Should Developer default on its obligations to the
Arizona State Land Department in connection with such land acquisition, portions of the
property within the District may revert tote Arizona State Land Department and no
longer be subject to ad valorem taxes. In such situation, the ad valorem taxes levied on
taxable property within the District, including the lot is is the subject of this
Disclosure Statement, may increase significantly above a rate of $3.30 per $100 of net
assessed limited property value.
The obligation to retire the special assessment bonds issued to finance the acquisition of
the completed public infrastructure benefitting principally Assessment District— will be
the responsibility of all property owners in Assessment District_ through the collection of
installments of assessment liens of$_,_00 per lot levied by the CFD. It is anticipated that
such assessment lien installment payments will be collected by the Pinal County Treasurer
through its standard ad valorem property tax collection process.
IMPACT OF ADDITIONAL CFD PROPERTY TAX AND ASSESSMENTS
The following illustrates the estimated additional annual ad valorem tax liability imposed by
the CFD, based on a range of residential values within Superstition Vistas and a combined
$3.60 tax rate for the current fiscal year 20_,-20_ (the $3.30 tax rate to retire the ad valorem
tax bonds plus the $0.30 O/M Tax rate):
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Assumed Value Estimated Annual
of Residence Additional CFD Tax Liability*
$_,000 $
$_,000
$_,000
$_,000
$_,000
$_,000
*Assumptions:
1. Improved residential property assessment ratio will remain at 10%.
2. The estimated total ad valorem tax amount is computed by multiplying the$3.60 per
$100 of assessed limited property value times the estimated limited tax rate Of
property value times the improved residential property assessment ratio. The actual
limited property value is determined by the Pinal County Assessor.
The estimated annual assessment lien liability imposed by the CFD in Assessment District
in addition to the ad valorem tax liability described above, is $
Additional information regarding the description of public infrastructure improvements to
be financed by the CFD, bond issue public disclosure documents and other documents and
agreements (including a copy of this Disclosure Statement) are available for review in the City
of Apache Junction City Clerk's office.
Your signature below acknowledges that you have read this Disclosure Statement at the time
you made your decision to purchase property at Superstition Vistas and signed your purchase
contract and that you understand the property you are purchasing will be taxed and separately
assessed to pay the CFD bonds described above and issued in the future and taxed to pay
the CFD operation, administration and maintenance expenses.
Home Buyer Signature/Date Home Buyer Printed Name
IF PURCHASING JOTNTLY OR OTHER K7SE WITH OTHER PAR-TY
Home Buyer Signature/Date Home Buyer Printed Name
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Builder e:
Parcel No.
Lot No.
UPON EXECUTION,MAIL DIRECTLY
TO: CFD DISTRICT CLERIC,
CITY OF APACHE JUNCTION
300 E. SUPERSTITION BLVD
APACHE JUNCTION, AZ 85119
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