EXHIBIT 5-B
FORM OF AGREEMENT
BETWEEN
MONTEREY PENINSULA
WATER MANAGEMENT DISTRICT
AND
__________________________________
FOR LOCAL WATER
PROJECT DEVELOPMENT EXPENSES
THIS
AGREEMENT is
entered into this _____ day of ________________, 20__, by and between the
Monterey Peninsula Water Management District (MPWMD) and the _________________________________________.
FACTS
A.
MPWMD was created by the California Legislature in 1977 for the purpose of
“conserving and augmenting the supplies by integrated management of ground and
surface water supplies, for control and conservation of storm and wastewater,
and for the promotion of the reuse and reclamation of water.” The MPWMD’s specific functions are
“management and regulation of the use, reuse, reclamation, conservation of
water and bond financing of public works projects.” It is authorized to issue bonds, assess
charges for groundwater enhancement facilities, levy assessments on real property
and improvements, and “fix, revise and collect rates and charges for the
services, facilities, or water furnished by it.”
B. The _________________________
through its Board and other officials, has all powers
necessary or appropriate to a municipal corporation and the general welfare of
its inhabitants, which are not prohibited by the Constitution of the State.
C. In an effort to improve the
local water supply by encouraging independent public works projects with
matching financial assistance, MPWMD solicited applications from local
jurisdictions and other interested parties.
D. At its June 16, 2014 meeting,
the MPWMD Board of Directors adopted a budget that included expenditures up to
$200,000 for development expenses for local water projects.
E. The ____________________
submitted a grant/loan application to MPWMD on September __, 2014. The application was approved by MPWMD’s Board
of Directors on October 20, 2014.
NOW,
THEREFORE, in
consideration of the facts recited above and the mutual goals and objectives
contained herein, the parties agree as follows:
1. Purpose of Agreement.
The purpose of this
Agreement is for MPWMD to advance $______ to the _______________, to be paid
beginning in MPWMD Fiscal Year 2014/15 and to be used by the _______________ for
development expenses associated with the ______________ Local Water Project (Project). __________ will adopt a reimbursement
resolution substantially in the form attached hereto and incorporated herein by
reference as Exhibit A. Reimbursement shall only be considered in the
case where permanent financing allows the reimbursement of development costs.
2. The Project.
The Project is
intended to produce a (potable/non-potable) water supply to offset existing use
of potable water delivered by the California American Water Company. This new water supply will increase and
diversify water resources by providing a drought resistant, sustainable
replacement source. (DESCRIBE PROJECT)
3. Term of Agreement.
The term of this
Agreement begins on the date set forth above and shall remain in effect until
June 30, 2017. Invoices received by MPWMD after this date for Project costs incurred
up to June 30, 2017, shall be paid unless MPWMD’s maximum commitment of
$________ has been reached.
4. Grants and Loans.
MPWMD and ______________
may each pursue and receive grants, state revolving fund loans, or other forms
of reimbursement from local, state, or federal sources. All receipts will be delivered to the _______________
and credited to the Project as received.
Such receipts will be deemed to offset Project costs.
5. Reimbursement.
The ________________
shall invoice MPWMD on a quarterly basis and MPWMD shall pay, subject to the
conditions described in Section 8 below.
6. Limited Obligations.
The parties agree
MPWMD’s financial obligations are limited obligations payable from its Water
Supply Charge. MPWMD will periodically report
to the ________________ indicating the status of available funds. The parties further agree the
________________’s financial obligations are limited obligations payable from budgeted
funds for the ____________ Local Water Project.
The ______________ will provide periodic reports to MPWMD indicating the
status of available matching funds.
7. Invoices.
The
_____________ shall pay for consultants, contractors,
and other Project costs in accordance with the terms of this Agreement. The _______________ shall submit quarterly invoices
to MPWMD for Project costs which will include back-up documentation
substantiating said Project costs incurred by the ______________.
8. Payment of Invoices.
MPWMD shall have the
right to review and confirm that the invoices submitted by the ________________
are in conformance with the terms of this Agreement. Where MPWMD finds the invoice and supporting
documentation for work to be unsatisfactory, MPWMD shall describe the
deficiencies in writing or by electronic mail to the ________________ within
ten (10) days. The ________________ shall
have the option of revising the invoice and supporting documentation to delete
reimbursement requests for invoices that are deemed unsatisfactory or revising
unsatisfactory invoices and resubmitting a reimbursement request. Payments
to the ________________ are due and payable within thirty (30) days of receipt
of invoice. MPWMD shall treat as
privileged and confidential any invoice that the ________________ transmits
under such label, and shall not disclose the content of that document to any
third party.
9. Conversion to Loan.
The payments made by
MPWMD to the ________________ shall constitute a convertible grant of
funds. In the event the ________________
shall enter into a permanent financing within three years of the expenditure of
MPWMD proceeds, and such permanent financing allows for reimbursement of
preconstruction costs, then the ________________ shall use best efforts to
reimburse MPWMD for funds made available under this Agreement pursuant to the
reimbursement resolution adopted by the ________________.
10. Event of Default.
The failure of a
party to comply with any provision of this Agreement that has a material and
adverse effect on the other party, except to the extent caused by a breach of
this Agreement by the other party, shall constitute an Event of Default under
this Agreement; provided, however, that the defaulting party shall first have a
period of thirty (30) days following receipt of notice from the other party of
such failure to comply to cure such failure, or if such cure cannot be effected
within such thirty (30) day period, such period shall extend for a total of one
hundred eighty (180) days, so long as the defaulting party is diligently trying
to cure such failure throughout such period.
11. Dispute Resolution.
Both parties shall
meet and use their best efforts to settle any dispute, claim, question or
disagreement (Dispute) arising from or relating to this Agreement. To that end, the parties shall consult and
negotiate with each other in good faith and, recognizing their mutual
interests, attempt to reach a just and equitable solution satisfactory to both
parties. If the parties do not reach such
a solution within a period of thirty (30) days after the first meeting
regarding the Dispute, then the parties shall pursue non-binding mediation to
be completed within sixty (60) days after the first meeting regarding the
Dispute. If the parties do not settle
the Dispute within the sixty (60) day period, either Party may pursue any and
all available legal and equitable remedies.
GENERAL PROVISIONS
12. Force
Majeure.
Neither party shall
be deemed to be in default where failure or delay in performance of any of its
obligations (other than payment obligations) under this Agreement is caused by
floods, earthquakes, other Acts of God, fires, wars, riots or similar
hostilities, actions of legislative, judicial, executive or regulatory
government bodies or other cause, without fault and beyond the reasonable
control of such party. If any such events shall occur, the time for performance
by either party of any of its obligations hereunder shall be extended by the parties
for the period of time that such events prevented such performance. Upon the occurrence
of an event of Force Majeure, the affected party shall: (i) promptly notify the
other party of such Force Majeure event, (ii) provide reasonable details
relating to such Force Majeure event and (iii) implement mitigation measures to
the extent commercially reasonable.
13. Indemnities.
a. MPWMD Indemnity. MPWMD shall fully indemnify the ________________
and its respective councilmembers, employees and agents against, and hold
completely free and harmless from, any cost, expense, claim, demand, judgment,
loss, injury and/or liability of any kind or nature, including personal or
bodily injury, death or property damage (Losses), that may arise from any
grossly negligent act or omission of MPWMD related to the Project.
b. ________________ Indemnity. The ________________
shall fully indemnify MPWMD and its respective directors, employees and agents
against, and hold completely free and harmless from, any Losses, that may arise
from (i) any grossly negligent act or omission of the ________________ related
to the Project construction, management, operation, maintenance or repair,
except for costs, expenses, claims, demands, judgments, losses, injuries and/or
liability arising from any grossly negligent act or omission of MPWMD related
to the Project development activities or
(ii) any claim made by a ________________ employee specifically retained to
provide services with respect to the Project development activities.
14. Insurance/Self Insurance.
The parties are either insured or
self-insured as to any requirements under this Agreement. No policies or bonds are required of either
party as to any provisions of this Agreement.
15. Notices.
All notices to MPWMD
required or permitted under this Agreement shall be in writing and shall be
deemed delivered (i) when delivered in person; (ii) on the third day after
mailing, if mailed, postage prepaid, by registered or certified mail (return
receipt requested); or (iii) on the day after mailing if sent by a nationally
recognized overnight delivery service which maintains records of the time,
place, and recipient of delivery. In each case the parties shall use the
following addresses or such addresses as may be furnished in writing by one
party to the other:
Monterey
Peninsula Water Management District
5 Harris Court, Building G
Monterey, CA 93940
Attention:
General Manager
All notices to the ________________
required or permitted under this Agreement shall be in writing and shall be
deemed delivered (i) when delivered in person; (ii) on the third day after
mailing, if mailed, postage prepaid, by registered or certified mail (return
receipt requested); or (iii) on the day after mailing if sent by a nationally
recognized overnight delivery service which maintains records of the time,
place, and recipient of delivery. In each case the parties shall use the
following addresses or such addresses as may be furnished in writing by one
party to the other:
Monterey Peninsula Airport District
200 Fred Kane Dr #200
Monterey, CA 93940
Attention: General Manager
16. Successors and
Assigns.
The terms and conditions of this Agreement shall inure to the
benefit of and are binding upon the parties hereto and their respective successors
in interest and permitted assigns.
17. No Third-Party
Beneficiaries.
Nothing in this Agreement is intended to create any
third-party beneficiaries to the Agreement, and no person or entity other than
the parties, and the permitted successors and assigns of either of them, shall
be authorized to enforce the provisions of this Agreement.
18. Further Acts and
Assurances.
The Parties agree to execute, acknowledge and deliver any and
all additional papers, documents and other assurances, and shall perform any
and all acts and things reasonably necessary, in connection with the performance
of the obligations hereunder and to carry out the intent of the parties.
19. Opinions and Determinations.
Where the terms of
this Agreement provide for action to be based upon opinion, judgment, approval,
review or determination of either party hereto, such terms are not intended to
be and shall never be construed as permitting such opinion, judgment, approval,
review or determination to be arbitrary, capricious or unreasonable.
20. Captions.
The captions in this Agreement are inserted only as a matter
of convenience and reference and in no way define, limit or describe the scope
or intent of this Agreement or in any way affect this Agreement. Words of any gender in this Agreement shall be
held to include any other gender and words in the singular number shall be held
to include the plural when the sense so requires.
21. Severability.
Should it be found that any part of this Agreement is illegal
or unenforceable, such part or parts of this Agreement shall be of no force nor
effect and this Agreement shall be treated as if such part or parts had not
been inserted.
22. Entire Agreement.
All previous negotiations had between the parties hereto
and/or their agents or representatives with respect to this Agreement are
merged herein and this Agreement alone fully and completely expresses the parties'
rights and obligations.
23. Modifications in
Writing.
This Agreement shall not be changed, altered or modified in
any manner except by an instrument in writing executed by the parties or their
respective successors in interest.
24. Assignment.
Neither Party may assign its interest in this Agreement without
the prior written consent of the other Party.
25. Drafting
Ambiguities.
This Agreement is the product of negotiation and preparation
between the parties. Both sides and
their counsel have had the opportunity to revise this Agreement. The parties waive the provisions of Section
1654 of the Civil Code of California and any other rule of construction to the
effect that ambiguities are to be resolved against the drafting party, and the
parties warrant and agree that the language of this Agreement shall neither be
construed against nor in favor of any party unless otherwise specifically
indicated.
26. Governing Law.
This Agreement and the rights and obligations of the parties
shall be governed, controlled and interpreted in accordance with the laws of
the State of California.
27. Venue.
The venue for any suit or proceeding concerning this
Agreement, the interpretation or application of any of its terms, or any
related disputes shall be in the County of Monterey, State of California.
28. Signing
Authority.
The representative of each party signing this Agreement hereby
declares that authority has been obtained to sign on behalf of the ________________
and MPWMD.
29. Inspection of
Books and Records.
The proper officers or agents of MPWMD shall have full and
free access at all reasonable times to the account books and official records
of the ________________ insofar as the same pertain to the matters and things
provided for in this Agreement, with the right at any time during office hours
to make copies thereof at MPWMD’s expense, and the proper representatives of
the ________________ shall have similar rights in respect to the account books
and records of MPWMD.
30. Representations
and Warranties.
No representations or warranties are made or have been relied
upon by either party other than those expressly set forth herein, if any.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
|
(Signature Section) |
MONTEREY PENINSULA
WATER MANAGEMENT DISTRICT
By:
__________________________________________________
DAVID POTTER, Chair
ATTEST:
________________________
DAVID
J. STOLDT, Board Secretary
APPROVED
AS TO FORM:
________________________
DAVID
C. LAREDO, General Counsel
(NAME OF ENTITY)
By:
__________________________________________________
NEED NAME, Board Chairman
ATTEST:
_______________________________
NEED
NAME, Board Secretary
APPROVED
AS TO FORM:
_______________________________
NEED
NAME, General Counsel
EXHIBIT A
RESOLUTION 2014- __
A Resolution of
the Board of Directors of the
______________________________
Declaring The
Official Intent to Reimburse Expenditures
From the
Proceeds of Tax Exempt Securities
WHEREAS,
the ___________________________ (the “_________”) desires to contribute funds
to finance the construction of facilities described in detail below
(collectively the “Project”); and
WHEREAS, the _____________ will be expending
funds for the financing of the project; and
WHEREAS,
the ______________
reasonably expects to reimburse such expenditures by authorizing the sale and
delivery of revenue certificates of participation or bonds, as described below:
NOW, THEREFORE, the Board of Directors of the _________________
hereby resolves as follows:
1. This Resolution is a declaration of
official intent to reimburse expenditures pursuant to Treasury Regulations
Section 1.150-2.
2. The ________________ desires to finance
a portion of the permitting, design, and construction of the Project consisting
of a non-potable water supply to offset existing use of potable water delivered
by the California American Water Company, through the retrofitting of a
formerly-used treatment system.
3. The ________________ reasonably expects
to reimburse the expenditures through the sale and delivery of revenue
certificates of participation or bonds (the “Debts”), the interest component of
which is excludable from gross income under Section 103 of the Internal Revenue
Code. The expected maximum principle
amount of the Debts to be issued for the project is $10,000,000.
4. The reimbursement allocation to be made
with respect to the expenditures will occur not later than eighteen (18)
months after the later of (i) the date on which the expenditure is made, or
(ii) the Project is placed in service, but in no event more than 3 years after
the expenditure is paid.
5. This Resolution expresses the ________________’s
expectations as of this date with respect to the financing of the construction
and acquisition of the Project. Future
events or extraordinary circumstances beyond the control of the ________________
may result in the Project being financed in a manner other than as described in
this Resolution, and nothing contained herein constitutes an irrevocable
commitment by the ________________ to issue the Debts.
On motion of Director _________, and
second by Director __________, the foregoing resolution is duly adopted this
___ day of ______ 2014 by the following votes:
AYES:
NAYS:
ABSENT:
I, _______________, Secretary to the
Board of Directors of the _____________________, hereby certify that the
foregoing is a resolution duly adopted on the ____ day of ______ 2014
Witness my hand and seal of the Board of
Directors this ___ day of ____ 2014.
_____________________________________
NEED NAME
Secretary to the Board
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