Resolution Number 21-01-19-01' RESOLUTION NO. 21-01-19-01
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN
CAPISTRANO, CALIFORNIA, AUTHORIZING THE CITY TO JOIN THE
STATEWIDE COMMUNITY INFRASTRUCTURE PROGRAM FOR
COMMUNITY FACILITIES DISTRICTS; AUTHORIZING THE CALIFORNIA
STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY TO ACCEPT
APPLICATIONS FROM PROPERTY OWNERS, CONDUCT SPECIAL
ASSESSMENT PROCEEDINGS AND LEVY ASSESSMENTS AND TO
FORM COMMUNITY FACILITIES DISTRICTS WITHIN THE TERRITORY
OF THE CITY OF SAN JUAN CAPISTRANO; EMBODYING A JOINT
COMMUNITY FACILITIES AGREEMENT SETTING FORTH THE TERMS
AND CONDITIONS OF COMMUNITY FACILITIES DISTRICT
FINANCINGS; APPROVING FORM OF ACQUISITION AGREEMENT FOR
USE WHEN APPLICABLE; AND AUTHORIZING RELATED ACTIONS
WHEREAS, the California Statewide Communities Development Authority
(the "Authority") is a joint exercise of powers authority lawfully formed and operating within
the State pursuant to an agreement (the "Joint Powers Agreement') entered into as of
June 1, 1988 under the authority of Title 1, Division 7, Chapter 5 (commencing with
Section 6500) of the California Government Code (the "JPA Law") the members of which
include numerous cities, counties and local agencies in the State of California, including
the City of San Juan Capistrano (the "City"); and
WHEREAS, the Joint Powers Agreement authorizes the Authority to undertake
financing programs under any applicable provisions of State law to promote economic
development, the stimulation of economic activity, and the increase of the tax base within
the jurisdictional boundaries of its members (such members, the "Program Participants");
and
WHEREAS, the Authority has established the Statewide Community Infrastructure
Program ("SCIP") to allow the financing of certain public capital improvements to be
constructed by or on behalf of property owners for acquisition by the City or another public
agency (the "Improvements") and improvements eligible for funding from certain
development impact fees (the "Fees") levied in accordance with the Mitigation Fee Act
(California Government Code Sections 66000 and following) and other authority providing
for the levy of fees on new development to pay for public capital improvements
(collectively, the "Fee Act') through the levy of special assessments pursuant to the
Municipal Improvement Act of 1913 (Streets and Highways Code Sections 10000 and
following) (the "1913 Act') and the issuance of improvement bonds (the "Local
Obligations") under the Improvement Bond Act of 1915 (Streets and Highways Code
Sections 8500 and following) (the "1915 Act') upon the security of the unpaid special
assessments; and
WHEREAS, the "Mello -Roos Community Facilities Act of 1982," being Chapter 2.5,
Part 1, Division 2, Title 5 (beginning with Section 53311) of the Government Code of the
State (the "Mello -Roos Act') is an applicable provision of State law available to, among
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other things, finance public improvements necessary to meet increased demands placed
upon local agencies as a result of development; '
WHEREAS, the Authority also uses SCIP to allow the financing of Fees and
Improvements through the levy of special taxes and the issuance of Local Obligations
under the Mello -Roos Act upon the security of the special taxes; and
WHEREAS, the City desires to allow the owners of property being developed
within its jurisdiction ("Participating Developers") to participate in SCIP and to allow the
Authority to conduct proceedings and to form community facilities districts ("CFDs") and
to issue Local Obligations under the Mello -Roos Act, as well as to conduct assessment
proceedings to form assessment districts ("Assessment Districts") under the 1913 Act and
to issue Local Obligations under the 1915 Act, to finance Fees levied on such properties
and Improvements, provided that such Participating Developers voluntarily agree to
participate and consent to the levy of such assessment or special taxes, as applicable;
and
WHEREAS, from time to time when eligible property owners within the jurisdiction
of the City elect to be Participating Developers, the Authority will conduct proceedings
under the 1913 Act and the Mello -Roos Act and issue Local Obligations under the 1915
Act and the Mello -Roos Act to finance Fees payable by such property owners and
Improvements and, at the conclusion of such proceedings, will levy assessments or
special taxes, as applicable, on such property within the territory of the City;
WHEREAS, both the Authority and the City are "local agencies" under the Mello- '
Roos Act;
WHEREAS, the Mello -Roos Act permits two or more local agencies to enter into a
joint community facilities agreement to exercise any power authorized by the Mello -Roos
Act;
WHEREAS, the City desires to enter into such an agreement with the Authority to
authorize the Authority to form CFDs from time to time within the territorial limits of the
City to Fees payable by such property owners and Improvements;
WHEREAS, there has been presented to this meeting a proposed form of
Resolution of Intention to be adopted by the Authority in connection with assessment
proceedings (the "ROI"), a copy of which is attached hereto as Exhibit A, and the territory
within which assessments may be levied for SCIP (provided that each Participating
Developer consents to such assessment) shall be coterminous with the City's official
boundaries of record at the time of adoption of such ROI (the "Proposed Boundaries"),
and reference is hereby made to such boundaries for the plat or map required to be
included in this Resolution pursuant to Section 10104 of the Streets and Highways Code;
and
WHEREAS, there has also been presented to this meeting a proposed form of '
Acquisition Agreement (the "Acquisition Agreement'), a copy of which is attached hereto
as Exhibit B, to be approved as to form for use with respect to any Improvements to be
constructed and installed by a Participating Developer and for which the Participating
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' Developer requests acquisition financing through the Mello -Roos Act as part of its SCIP
for CFDs application; and
WHEREAS, the City will not be responsible for the conduct of any proceedings;
the levy or collection of assessments or special taxes or any required remedial action in
the case of delinquencies in such assessment or special tax payments; or the issuance,
sale or administration of the Local Obligations or any other bonds issued in connection
with SCIP; and
WHEREAS, the Authority will issue revenue bonds pursuant to the Marks -Roos
Local Bond Pooling Act of 1985 (the "Marks -Roos Act") to acquire the Local Obligations
and thereby provide the proceeds to finance the Fees and Improvements; and
WHEREAS, pursuant to Government Code Section 6586.5, notice was published
at least five days prior to the adoption of this resolution at a public hearing, which was
duly conducted by this City Council concerning the significant public benefits of SCIP for
CFDs and the financing of the Improvements and the public capital improvements to be
paid for with the proceeds of the Fees;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of San
Juan Capistrano as follows:
Section 1. This resolution shall constitute full "local approval," under Section 9
of the Joint Powers Agreement, and under the Authority's Local Goals and Policies
(defined below), for the Authority to undertake and conduct proceedings in accordance
herewith and under the Mello -Roos Act to form CFDs with boundaries that shall be
coterminous with the City's official boundaries of record at the time of such proceedings
or any portion thereof (the "Proposed Boundaries"), and to authorize a special tax and to
issue bonds with respect thereto; provided that the Participating Developers, who shall
be the legal owners of such property at the time of formation of the CFD, execute a written
consent to the levy of special tax in connection with SCIP by the Authority and execute a
ballot in favor of the formation of such CFD and the Mello -Roos Act; provided however
that no Local Obligations shall be issued for any CFD until the City acknowledges the
Participating Developer's application.
Section 2. The City hereby consents to the conduct of special assessment
proceedings by the Authority in connection with SCIP pursuant to the 1913 Act and the
issuance of Local Obligations under the 1915 Act on any property within the Proposed
Boundaries; provided that:
(1) Such proceedings are conducted pursuant to one or more Resolutions
of Intention in substantially the form of the ROI; and
(2) The Participating Developers, who shall be the legal owners of such
property at the time of the formation of the Assessment District, execute a
written consent to the levy of special taxin connection with SCIP by the
Authority and execute an assessment ballot in favor of such assessment in
compliance with the requirements of Section 4 of Article XIIID of the State
Constitution and;
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(3) The City acknowledges the application of the Participating Developer.
Section 3. The Joint Powers Agreement, together with the terms and provisions
of this resolution, shall together constitute a separate joint community facilities agreement
between the City and the Authority under the Mello -Roos Act for each CFD formed. As,
without this resolution, the Authority has no power to finance City Fees and City
Improvements (as such terms are defined herein) in proceedings under the Act to form
the CFD, adoption by the Commission of the Authority of each Resolution of Intention to
form a CFD under the Mello -Roos Act to finance City Fees and City Improvements shall
constitute acceptance of the terms hereof by the Authority with respect to such CFD.
Section 4. This resolution and the agreement it embodies are determined to be
beneficial to the residents/customers of the City and are in the best interests of the
residents of the City, and of the future residents of the area within the proposed CFDs
and Assessment Districts. The City hereby finds and declares that the issuance of
revenue bonds by the Authority to purchase Local Obligations in connection with SCIP
will provide significant public benefits, including without limitation, the more efficient
delivery of local agency services to residential and commercial development within the
City.
Section 5. The Authority has adopted Local Goals and Policies as required by
Section 53312.7 of the Act. The City approves the use of those Local Goals and Policies
in connection with the formation of CFDs. The City hereby agrees that the Authority may
act in lieu of the City under those Local Goals and Policies in forming and administering
the CFDs.
Section 6. The Authority has prepared and will update from time to time the
"SCIP Manual of Procedures" (the "Manual'), and the City will handle Fee revenues and
funds for Improvements for properties participating in SCIP in accordance with the
procedures set forth in the Manual. The Authority shall provide to the City notice of any
updates to the Manual. Such notice may be accomplished by posting the Manual on the
official website of CSCDA.
Section 7. Pursuant to the Mello -Roos Act and this resolution, the Authority may
conduct proceedings under the Mello -Roos Act to form the CFDs and to have such CFDs
authorize the financing of any or all of the facilities and Fees set forth on Exhibit C,
attached hereto. All of the facilities, whether to be financed directly or through Fees, shall
be facilities that have an expected useful life of five years or longer and are facilities that
the City or other local public agencies, as the case may be, are authorized by law to
construct, own or operate, or to which they may contribute revenue. Exhibit C may be
modified from time to time by written agreement between an authorized representative of
the Authority and of the City. The facilities are referred to herein as the 'Improvements,"
and the Improvements to be owned by the City are referred to as the "City Improvements."
The Fees paid or to be paid to the City are referred to as the "City Fees." Prior to the
issuance of each series of Local Obligations, if the City does not at that time own and
operate any Improvement to be financed by such Local Obligations, the Authority shall
obtain approval of the Other Local Agency (as defined below) which owns and operates
such Improvement in accordance with Section 8 and the Mello -Roos Act.
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' Section 8. For Fees paid or to be paid to another agency by any particular CFD
(an "Other Local Agency"), the Authority will obtain the written consent of that Other Local
Agency before issuing Local Obligations to fund such Fees, as required by the Mello -
Roos Act. For the Improvements to be owned by an Other Local Agency, the Authority
will separately identify them in its proceedings, and will enter into a joint community
facilities agreement with such Other Local Agency prior to issuing Local Obligations to
finance such Improvements, as required by the Mello -Roos Act. Each joint community
facilities agreement with each Other Local Agency will contain a provision that the Other
Local Agency will provide indemnification to the City to the same extent that the City
provides indemnification to the Other Local Agency under the terms of this resolution
Section 9. At the time of formation of each CFD, the City will certify to the
Commission of the Authority that all of the City Improvements including the improvements
to be constructed or acquired with the proceeds of City Fees to be funded by such CFD
are necessary to meet increased demands placed upon the City as a result of
development occurring or expected to occur within the proposed CFDs in the form
attached hereto as Exhibit D. Any appropriate officer or staff of the City is authorized to
execute and deliver such certificate in substantially the form attached hereto as Exhibit
D, with such changes as such signatory shall approve. Joint community facilities
agreements with other local agencies will each contain a requirement that each Other
Local Agency will make identical certification in connection with respect to the
Improvements to be owned by, and Fees paid or to be paid to, such Other Local Agency
equivalent to that made by the City in this paragraph.
Section 10. The Authority will apply the special tax collections initially as required
by the documents under which any Local Obligations are issued; and thereafter, to the
extent not provided in the Local Obligations documents, may pay its own reasonable
administrative costs incurred in the administration of the CFDs. The Authority will remit
any special tax revenues from any particular CFD remaining after the final retirement of
all related Local Obligations to the City and to the other local agencies in the proportions
specified in the Authority's proceedings. The City will apply any such special tax revenues
it receives for authorized City Improvements or City Fees and its own administrative costs
only as permitted by the Mello -Roos Act. The joint community facilities agreements with
each Other Local Agency must require the Other Local Agency to apply the special tax
revenues they receive for their authorized Improvements and Fees under the CFDs and
for their own related administrative costs only as permitted by the Mello -Roos Act.
Section 11. The Authority will administer the CFDs, including employing and
paying all consultants, annually levying the special tax and all aspects of paying and
administering the Local Obligations, and complying with all State and Federal
requirements appertaining to the proceedings, including the requirements of the United
States Internal Revenue Code. The City will cooperate fully with the Authority in respect
of the requirements of the Internal Revenue Code and to the extent information is required
' of the City to enable the Authority to perform its disclosure and continuing disclosure
obligations with respect to the Local Obligations and any revenue bonds, although the
City will not participate in nor be considered to be a participant in the proceedings
respecting the CFDs (other than as a party to the agreement embodied by this resolution)
nor will the City be or be considered to be an issuer of the Local Obligations nor any
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revenue bonds. The Authority is required to obtain a provision equivalent to this
paragraph in all joint community facilities agreements with each Other Local Agency. '
Section 12. In the event the Authority completes issuance and sale of Local
Obligations, and Local Obligation proceeds become available to finance the
Improvements, the Authority shall establish and maintain a special fund for each
development project (the "Acquisition and Construction Fund"). The portion of Local
Obligation proceeds which is intended to be utilized to finance the Improvements and
Fees shall be deposited in the Acquisition and Construction Fund. The Acquisition and
Construction Fund will be available both for City Improvements and City Fees and for the
Improvements and Fees pertaining to each Other Local Agency. Subaccounts shall be
created as necessary.
Section 13. As respects the Authority and each Other Local Agency, the City
agrees to fully administer, and to take full governmental responsibility for, the construction
or acquisition of the City Improvements and for the administration and expenditure of the
City Fees including but not limited to environmental review, approval of plans and
specifications, bid requirements, performance and payment bond requirements,
insurance requirements, contract and construction administration, staking, inspection,
acquisition of necessary property interests in real or personal property, the holding back
and administration of retention payments, punch list administration, and the Authority and
each Other Local Agency shall have no responsibility in that regard. The City reserves
the right, as respects the each Participating Developer, to require the Participating
Developer to contract with the City to assume any portion or all of this responsibility. The '
Authority is required to obtain provisions equivalent to this paragraph in the joint
community facilities agreement with each Other Local Agency.
Section 14. The City agrees to indemnify and to hold the Authority, its other
members, and its other members' officers, agents and employees, and each Other Local
Agency and their officers, agents and employees (collectively, the "Indemnified Parties')
harmless from any and all claims, suits and damages (including costs and reasonable
attorneys' fees) arising out of the design, engineering, construction and installation of the
City Improvements and the improvements to be financed or acquired with the City Fees.
The City reserves the right, as respects each Participating Developer, to require the
Participating Developer to assume by contract with the City any portion or all of this
responsibility. The Authority is required to obtain a provision equivalent to this paragraph
in all joint community facilitiesagreements with each Other Local Agency naming the City
and its officers, agents and employees as Indemnified Parties with respect to the each
Other Local Agency's respective Improvements and the improvements to be constructed
or acquired with the each Other Local Agency's Fees.
Section 15. As respects the Authority and each Other Local Agency, the City
agrees — once the City Improvements are constructed according to the approved plans
and specifications, and the City and the Participating Developer have put in place their
agreed arrangements for the funding of maintenance of the City Improvements — to '
accept ownership of the City Improvements, to take maintenance responsibility for the
City Improvements, and to indemnify and hold harmless the Indemnified Parties to the
extent provided in the preceding paragraph from any and all claims, etc., arising out of
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' the use and maintenance of the City Improvements. The City reserves the right, as
respects the Participating Developer, to require the Participating Developer by contract
with the City to assume any portion or all of this responsibility. The Authority is required
to obtain a provision equivalent to this paragraph in all joint community facilities
agreements with each Other Local Agency naming the City and its officers, agents and
employees as Indemnified Parties.
Section 16. Except as provided for in Sections 13, 14 and 15 above, the Authority
agrees to indemnify and to hold the City and its officers, agents and employees
(collectively, the "Authority Indemnified Parties') harmless from any and all claims, suits
and damages (including costs and reasonable attorneys' fees) arising out of the City's
participation in SCIP.
Section 17. The City acknowledges the requirement of the Mello -Roos Act that if
the City Improvements are not completed prior to the adoption by the Commission of the
Authority of the Resolution of Formation of the CFD for each respective development
project, the City Improvements must be constructed as if they had been constructed under
the direction and supervision, or under the authority of, the City. The City acknowledges
that this means all City Improvements must be constructed under contracts that require
the payment of prevailing wages as required by Section 1720 and following of the Labor
Code of the State of California. The Authority makes no representation that this
requirement is the only applicable legal requirement in this regard. The City reserves the
right, as respects the Participating Developer, to assign appropriate responsibility for
compliance with this paragraph to the Participating Developer.
Section 18. The form of the Acquisition Agreement attached hereto as Exhibit B
is hereby approved, and the City Manager or such officer's designee (the "Authorized
Officer") is authorized to execute, and deliver to the Participating Developer, the
Acquisition Agreement on behalf of the City in substantially that form, with such changes
as shall be approved by the Authorized Officer after consultation with the City Attorney
and the Authority's bond counsel, such approval to be conclusively evidenced by the
execution and delivery thereof.
Section 19. After completion of the City Improvements and appropriate
arrangements for the maintenance of the City Improvements, or any discrete portion
thereof as provided in Section 53313.51 of the Mello -Roos Act and in the Acquisition
Agreement, to the satisfaction of the City, and in conjunction with the City's acceptance
thereof, acquisition of the City Improvements shall be undertaken as provided in the
Acquisition Agreement.
Section 20. The City hereby consents to the formation of the CFDs in accordance
with this resolution and consents to the assumption of jurisdiction by the Authority for the
proceedings respecting the CFDs with the understanding that the Authority will hereafter
take each and every step required for or suitable for consummation of the proceedings,
the levy, collection and enforcement of the special tax, and the issuance, sale, delivery
and administration of the Local Obligations, all at no cost to the City and without binding
or obligating the City's general fund or taxing authority.
7 1/19/2021
Section 21. The terms of the Agreement embodied by this resolution may be
amended by a writing duly authorized, executed and delivered by the City and the ,
Authority, except that no amendment may be made after the issuance of the Local
Obligations by the Authority that would be detrimental to the interests of the bondholders
without complying with all of the bondholder consent provisions for the amendment of the
bond resolutions, bond indentures or like instruments governing the issuance, delivery
and administration of all outstanding Local Obligations.
Section 22. Except to the extent of the indemnifications extended to each Other
Local Agency in the Agreement embodied by this resolution, and the City's agreement to
take responsibility for and ownership of the City Improvements, no person or entity,
including the Participating Developer, shall be deemed to be a third party beneficiary of
this resolution, and nothing in this resolution (either express or implied) is intended to
confer upon any person or entity other than the Authority and the City (and their respective
successors and assigns) any rights, remedies, obligations or liabilities under or by reason
of this resolution.
Section 23. The City shall be identified as a third -party beneficiary of all joint
community facilities agreements between the Authority and each Other Local Agency to
the extent of the indemnification provisions and the provisions whereby each Other Local
Agency agrees to take responsibility for and ownership of their Improvements.
Section 24. The appropriate officials and staff of the City are hereby authorized
and directed to make SCIP applications available to all property owners who are subject '
to Fees for new development within the City and/or who are conditioned to install
Improvements and to inform such owners of their option to participate in SCIP; provided,
that the Authority shall be responsible for providing such applications and related
materials at its own expense. The staff persons listed on the attached Exhibit E, together
with any other staff persons chosen by the City Manager from time to time, are hereby
designated as the contact persons for the Authority in connection with SCIP.
Section 25. The appropriate officials and staff of the City are hereby authorized
and directed to execute and deliver such closing certificates, requisitions, agreements
and related documents, including but not limited to such documents as may be required
by bond counsel in connection with the participation in SCIP of any districts, authorities
or other third -party entities entitled to own Improvements and/or to levy and collect fees
on new development to pay for public capital improvements within the jurisdiction of the
City, as are reasonably required by the Authority in accordance with the Manual to
implement SCIP and to evidence compliance with the requirements of federal and state
law in connection with the issuance by the Authority of the Local Obligations and any
other bonds for SCIP. To that end, and pursuant to Treasury Regulations Section 1.150-
2, the staff persons listed on Exhibit E, or other staff person acting in the same capacity
for the City with respect to SCIP, are hereby authorized and designated to declare the
official intent of the City with respect to the public capital improvements to be paid or
reimbursed through participation in SCIP.
Section 26. This Resolution shall take effect immediately upon its adoption. The
City Clerk is hereby authorized and directed to transmit a certified copy of this resolution
8 1/19/2021
' to the Secretary of the Authority. This resolution shall remain in force until all Local
Obligations have been retired and the authority to levy the special tax conferred by any
CFD proceedings and to levy the assessment conferred by any assessment proceedings
has ended or is otherwise terminated.
PASSED, APPROVED AND ADOPTED this 19th day of January 2021.
lit
JOHN T LOR, MAYOR
ATT ST
MAR A M RRIS, CITY CL RK
STATE OF CALIFORNIA
COUNTY OF ORANGE
CITY OF SAN JUAN CAPISTRANO
) ss.
I, Maria Morris, appointed City Clerk of the City of San Juan Capistrano, do hereby
certify that the foregoing Resolution No. 21-01-19-01 was duly adopted by the City
Council of the City of San Juan Capistrano at a Regular meeting thereof, held the 19th
day of January 2021, by the following vote:
1
AYES:1
O
NCIL MEMBERS:
Hart, Bourne, Farias and Mayor Taylor
OES:
NIO
NCIL MEMBERS:
None
ABSENT:
O
NCIL MEMBERS:
Reeve
MARIA MORRIS) CITY C
iJ
1/19/2021
EXHIBIT A TO THE RESOLUTION
FORM OF RESOLUTION OF INTENTION '
TO BE ADOPTED BY CSCDA
RESOLUTION NO. SCIP-
RESOLUTION OF INTENTION OF THE CALIFORNIA STATEWIDE
COMMUNITIES DEVELOPMENT AUTHORITY TO FINANCE CAPITAL
IMPROVEMENTS AND/OR THE PAYMENT OF DEVELOPMENT
IMPACT FEES FOR PUBLIC CAPITAL IMPROVEMENTS IN THE
PROPOSED STATEWIDE COMMUNITY INFRASTRUCTURE PROGRAM
ASSESSMENT DISTRICT NO. _ ([NAME OFPROJECT]) CITY OF SAN
JUAN CAPISTRANO, COUNTY OF ORANGE, APPROVING A
PROPOSED BOUNDARY MAP, MAKING CERTAIN DECLARATIONS,
FINDINGS AND DETERMINATIONS CONCERNING RELATED
MATTERS, AND AUTHORIZING RELATED ACTIONS IN CONNECTION
THEREWITH
WHEREAS, under the authority of the Municipal Improvement Act of 1913 (the
"1913 Act'), being Division 12 (commencing with Sections 10000 and following) of the
California Streets and Highways Code (the "Code"), the Commission (the "Commission")
of the California Statewide Communities Development Authority (the "Authority") intends
to finance, through its Statewide Community Infrastructure Program, the payment of '
certain development impact fees for public improvements (the "Improvement Fees")
and/or to finance certain public capital improvements to be constructed by or on behalf of
the property owner(s) and to be acquired by the City of San Juan Capistrano or another
local agency (the "Improvements") as described in Exhibit A attached hereto and by this
reference incorporated herein, all of which are of benefit to the property within the
proposed Statewide Community Infrastructure Program Assessment District No. _
([name of project]) City of San Juan Capistrano, County of Orange (the "Assessment
District');
WHEREAS, the Commission finds that the land specially benefited by the
Improvements and/or the Improvement Fees is shown within the boundaries of the map
entitled "Proposed Boundaries of California Statewide Communities Development
Authority Statewide Community Infrastructure Program Assessment District No. _
([name of project]) City of San Juan Capistrano, County of Orange," a copy of which map
is on file with the Secretary and presented to this Commission meeting, and determines
that the land within the exterior boundaries shown on the map shall be designated
"Statewide Community Infrastructure Program Assessment District No. _ ([name of
project]) City of San Juan Capistrano, County of Orange";
WHEREAS, the City of San Juan Capistrano is a member of the Authority and has
approved the adoption on its behalf of this Resolution of Intention and has consented to
the levy of the assessments in the Assessment District; I
A -I
4127-)03542 16 3
t NOW, THEREFORE, BE IT RESOLVED that the Commission of the California
Statewide Communities Development Authority hereby finds, determines and resolves as
follows:
Section 1. The above recitals are true and correct.
Section 2. Pursuant to Section 2961 of the Special Assessment Investigation,
Limitation and Majority Protest Act of 1931 (the "1931 Act'), being Division 4
(commencing with Section 2800) of the Code, the Commission hereby declares its intent
to comply with the requirements of the 1931 Act by complying with Part 7.5 thereof.
Section 3. The Commission has designated a registered, professional engineer
as Engineer of Work for this project, and hereby directs said firm to prepare the report
containing the matters; required by Sections 2961(b) and 10204 of the Code, as
supplemented by Section 4 of Article XIIID of the California Constitution.
Section 4. The proposed boundary map of the Assessment District is hereby
approved and adopted. Pursuant to Section 3111 of the Code, the Secretary of the
Authority is directed to file a copy of the map in the office of the County Recorder of the
County of Orange within fifteen (15) days of the adoption of this resolution.
Section 5. The Commission determines that the cost of financing the
' Improvements and/or the payment of the Improvement Fees shall be specially assessed
against the lots, pieces or parcels of land within the Assessment District benefiting from
the financing of the Improvements and/or the payment of the Improvement Fees. The
Commission intends to levy a special assessment upon such lots, pieces or parcels in
accordance with the special benefit to be received by each such lot, piece or parcel of
land, respectively, from the financing of the Improvements and/or the payment of the
Improvement Fees.
Section 6. The Commission intends, pursuant to subparagraph (f) of Section
10204 of the Code, to provide for an annual assessment upon each of the parcels of land
in the proposed Assessment District to pay various costs and expenses incurred from
time to time by the Authority and not otherwise reimbursed to the Authority which result
from the administration and collection of assessment installments or from the
administration or registration of the improvement bonds and the various funds and
accounts pertaining thereto.
Section 7. Bonds representing unpaid assessments, and bearing interest at a
rate not to exceed twelve percent (12%) per annum, will be issued in the manner provided
by the Improvement Bond Act of 1915 (Division 10 of the Code), and the last installment
of the bonds shall mature not to exceed twenty-nine (29) years from the second day of
September next succeeding twelve (12) months from their date.
Section 8. The procedure for the collection of assessments and advance
retirement of bonds under the Improvement Bond Act of 1915 shall be as provided in Part
11.1 thereof.
A-2
4127-1035.4216.3
Section 9. Neither the Authority nor any member agency thereof will obligate
itself to advance available funds from its or their own funds or otherwise to cure any ,
deficiency which may occur in the bond redemption fund. A determination not to obligate
itself shall not prevent the Authority or any such member agency from, in its sole
discretion, so advancing funds.
Section 10. The amount of any surplus remaining in the improvement fund after
acquisition of the Improvements and/or payment of Improvement Fees and all other
claims shall be distributed in accordance with the provisions of Section 10427.1 of the
Code.
Section 11. To the extent any Improvement Fees are paid to the Authority in cash
with respect to property within the proposed Assessment District prior to the date of
issuance of the bonds, the amounts so paid shall be reimbursed from the proceeds of the
bonds to the property owner or developer that made the payment.
A-3
4127-1035-4216.3
t PASSED AND ADOPTED by the California Statewide Communities Development
Authority this _ day of , 2020.
I, the undersigned, an Authorized Signatory of the California Statewide
Communities Development Authority, DO HEREBY CERTIFY that the foregoing
resolution was duly adopted by the Commission of the Authority at a duly called meeting
of the Commission of the Authority held in accordance with law on _ '2020.
►:Q1
4127-1035-4216.3
a
Authorized Signatory
California Statewide
Communities
Development Authority
EXHIBIT A TO THE RESOLUTION OF INTENTION
DESCRIPTION OF WORK
The payment of development impact fees levied within the Assessment District and/or
public capital improvements to be acquired and owned by the City of San Juan Capistrano
or another local agency upon or for the benefit of parcels within the Assessment District,
for the project known as [Project Name], which are authorized to be financed pursuant to
the Municipal Improvement Act of 1913 and as to which the owners of the applicable
parcels within the Assessment District have applied for participation in SCIP, as more
particularly described below.
PAYMENT OF IMPACT FEES
CAPITAL IMPROVEMENTS*
*Capital improvements includes funding for incidental costs associated with the capital '
improvements, including but not limited to, contingency, design, engineering, and
construction management
[End of Form of Resolution of Intention]
tEXHIBIT B TO RESOLUTION
FORM OF ACQUISITION AGREEMENT
CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY
STATEWIDE COMMUNITY INFRASTRUCTURE PROGRAM
ACQUISITION AGREEMENT
BY AND BETWEEN
CITY OF SAN JUAN CAPISTRANO
' AND
[DEVELOPER]
Dated as of , 20_
4127-1035-4216.3
ACQUISITION AGREEMENT
Recitals I
A. The parties to this Acquisition Agreement (the "Agreement") are the CITY
OF SAN JUAN CAPISTRANO, (the "Local Agency"), and [DEVELOPER], a [here indicate
type of legal entity] (the "Developer").
B. The effective date of this Agreement is , 20_.
C. The Developer has applied for the financing of, among other things, certain
public capital improvements to be owned by the Local Agency (collectively, the
"Acquisition Improvements") through the California Statewide Communities Development
Authority (the "Authority") and its Statewide Community Infrastructure Program ("SCIP").
[For CFDS:][The Acquisition Improvements are to be owned and operated by the Local
Agency, and the financing is to be accomplished through a community facilities district
which will be administered by the Authority under and pursuant to the Mello -Roos
Community Facilities Act of 1982 — California Government Code Sections 53311 and
following (the "Act"). On [ 1, 2020, the Local Agency entered into a Joint
Community Facilities Agreement authorizing the Authority to form a community facilities
district (the "District") within the territorial limits of the Local Agency to finance, among
other things, the Acquisition Improvements. On [ 1, 20_, the Authority
formed the District and, on the same date, a landowner election was conducted in which
all of the votes were cast unanimously in favor of conferring the District authority on the '
Authority Commission.] [For Assessment Districts:][The Acquisition Improvements are to
be owned and operated by the Local Agency, and the financing is to be accomplished
through an assessment district (the "District") which will be administered by the Authority
under and pursuant to Municipal Improvement Act of 1913 (Streets and Highways Code
Sections 10000 and following) (the "1913 Act") and the issuance of improvement bonds
(the "Local Obligations') under the Improvement Bond Act of 1915 (Streets and Highways
Code Sections 8500 and following) (the "1915 Act" and, together with the 1913 Act" the
"Act").]
D. The administration, payment and reimbursement of the capital facilities fees
is agreed to be governed by the provisions of the SCIP Manual of Procedures as it may
be amended from time to time. The administration, payment and reimbursement of the
Acquisition Improvements shall be as provided herein.
E. Under SCIP, the Authority intends to levy [assessments] [special taxes] and
issue bonds, in one or more series, to fund, among other things, all or a portion of the
costs of the Acquisition Improvements. The portion of the proceeds of the [special taxes
and] bonds allocable to the cost of the Acquisition Improvements, together with interest
earned thereon, is referred to herein as the "Available Amount".
F. The Authority will provide financing for the acquisition by the Local Agency
of the Acquisition Improvements and the payment of the Acquisition Price (as defined '
herein) of the Acquisition Improvements from the Available Amount. Attached hereto as
' Exhibit A is a description of the Acquisition Improvements, which includes authorized
discrete and usable portions, if any, of the public capital improvements, pursuant to
Section 53313.51 of the Act, to be acquired from the Developer.
G. The parties anticipate that, upon completion of the Acquisition
Improvements and subject to the terms and conditions of this Agreement, the Local
Agency will acquire such completed Acquisition Improvements solely with the Available
Amount.
H. Any and all monetary obligations of the Local Agency arising out of this
Agreement are the special and limited obligations of the Local Agency payable only from
the Available Amount, and no other funds whatsoever of the Local Agency shall be
obligated therefor.
I. Attached to this Agreement are ExhibitA (the Acquisition Improvements and
the Eligible Portions thereof), Exhibit B (form of Requisition), and Exhibit C (Bidding,
Contracting and Construction Requirements for Acquisition Improvements), all of which
are incorporated into this Agreement for all purposes.
Agreement
ARTICLE I
DEFINITIONS; DISTRICT
FORMATION AND FINANCING PLAN
Section 1.01. Definitions. As used herein, the following capitalized terms
shall have the meanings ascribed to them below:
"Acceptable Title" means free and clear of all monetary liens, encumbrances,
assessments, whether any such item is recorded or unrecorded, and taxes, except those
items which are reasonably determined by the Local Agency Engineer not to interfere
with the intended use and therefore are not required to be cleared from the title.
"Acquisition and Construction Fund" means the "[Local Agency] Acquisition and
Construction Fund" established by the Authority pursuant to Section 1.03 hereof for the
purpose of paying the Acquisition Price of the Acquisition Improvements and which fund
may be held as a subaccount within a fund established under the Authority Trust
Agreement and may be commingled with acquisition and construction fund monies
available for other public capital improvements.
"Acquisition Improvement" shall have the meaning assigned to such term in the
recitals and are further described in Exhibit A.
I "Acquisition Price" means the total amount eligible to be paid to the Developer
upon acquisition of an Acquisition Improvement as provided in Section 2.03 not to exceed
the Actual Cost of the Acquisition Improvement.
"Act" has the meaning ascribed thereto in Recital C.
"Actual Cost" means the total cost of an Acquisition Improvement, as documented
'
by the Developer to the satisfaction of the Local Agency and as certified by the Local
Agency Engineer in an Actual Cost Certificate including, without limitation, (a) the
Developer's cost of constructing such Acquisition Improvement including grading, labor,
material and equipment costs, (b) the Developer's cost of designing and engineering the
Acquisition Improvement, preparing the plans and specifications and bid documents for
such Acquisition Improvement, and the costs of inspection, materials testing and
construction staking for such Acquisition Improvement, (c) the Developer's cost of any
performance, payment and maintenance bonds and insurance, including title insurance,
required hereby for such Acquisition Improvement, (d) the Developer's cost of any real
property or interest therein that is either necessary for the construction of such Acquisition
Improvement (e.g., temporary construction easements, haul roads, etc.), or is required to
be conveyed with such Acquisition Improvement in order to convey Acceptable Title
thereto to the Local Agency or its designee, (e) the Developer's cost of environmental
evaluation or mitigation required for such Acquisition Improvement, (f) the amount of any
fees actually paid by the Developer to governmental agencies in order to obtain permits,
licenses or other necessary governmental approvals and reviews for such Acquisition
Improvement, (g) the Developer's cost for construction and project management,
administration and supervision services for such Acquisition Improvement, (h) the
Developer's cost for professional services related to such Acquisition Improvement,
including engineering, accounting, legal, financial, appraisal and similar professional
services, and (i) the costs of construction financing incurred by the Developer with respect
'
to such Acquisition Improvement.
"Actual Cost Certificate" means a certificate prepared by the Developer detailing
the Actual Cost of an Acquisition Improvement, or an Eligible Portion thereof, to be
acquired hereunder, as may be revised by the Local Agency Engineer pursuant to Section
2.03.
20
"Agreement" means this Acquisition Agreement, dated as of [ 11
"Authority" means the California Statewide Communities Development Authority.
"Authority Trust Agreement" means a Trust Agreement entered into by the
Authority and an Authority Trustee in connection with the issuance of bonds.
"Authority Trustee" means the financial institution identified as trustee in an
Authority Trust Agreement.
"Available Amount" shall have the meaning assigned to the term in Recital E.
"Bonds" means bonds or other indebtedness issued by the Authority as tax-exempt
or taxable bonds or other indebtedness, in one or more series, that is to be repaid by the
District.
' "Code" means the Streets and Highways Code or the Government Code of the
State of California, as applicable.
"Developer" means [Developer], its successors and assigns.
"Disbursement Request Form" means a requisition for payment of funds from the
Acquisition and Construction Fund for an Acquisition Improvement, or an Eligible Portion
thereof in substantially the form contained in Exhibit B hereto.
"District" shall have the meaning assigned to the term in Recital C.
"Eligible Portion" shall have the meaning ascribed to it in Section 2.03 below.
"Installment Payment" means an amount equal to ninety percent (90%) of the
Actual Cost of an Eligible Portion.
"Local Agency" means the City of San Juan Capistrano.
"Local Agency Engineer" means the Engineer of the Local Agency or his/her
designee who will be responsible for administering the acquisition of the Acquisition
Improvements hereunder.
"Project" means the Developer's development of the property in the District,
' including the design and construction of the Acquisition Improvements and the other
public and private improvements to be constructed by the Developer within the District.
["Special Taxes" means annual special taxes, and prepayments thereof,
authorized by the District to be levied by the Commission of the Authority.]
"Title Documents" means, for each Acquisition Improvement acquired hereunder,
a grant deed or similar instrument necessary to transfer title to any real property or
interests therein (including easements), or an irrevocable offer of dedication of such real
property with interests therein necessary to the operation, maintenance, rehabilitation and
improvement by the Local Agency of the Acquisition Improvement (including, if
necessary, easements for ingress and egress) and a bill of sale or similar instrument
evidencing transfer of title to the Acquisition Improvement (other than said real property
interests) to the Local Agency, where applicable.
Section 1.02. Participation in SCIP. [For CFDs:][The Local Agency has
entered into a Joint Community Facilities Agreement with the Authority for the purpose of
accepting applications from time to time of developers within the Local Agency's
jurisdictional boundaries.] Developer has applied for financing through. SCIP of the
Acquisition Improvements, and such application has been approved by the Local Agency.
Developer and Local Agency agree that until and unless such financing is completed by
the Authority and the Available Amount is deposited in the Developer Acquisition Account,
' neither the Developer nor the Local Agency shall ihave any obligations under this
agreement. Developer agrees to cooperate with the Local Agency and the Authority in
the completion of SCIP financing for the Acquisition Improvements.
Section 1.03. Deposit and Use of Available Amount.
(a) Upon completion of the SCIP financing, the Available Amount will be
deposited by the Authority in the Acquisition Account.
(b) The Authority will cause the SCIP Trustee to establish and maintain
the Acquisition Account for the purpose of holding all funds for the Acquisition
Improvements. All earnings on amounts in the Acquisition and Construction Fund shall
remain in the Acquisition and Construction Fund for use as provided herein and pursuant
to the Authority Trust Agreement. Money in the Acquisition and Construction Fund shall
be available to respond to delivery of a Disbursement Request Form and to be paid to the
Developer or its designee to pay the Acquisition Price of the Acquisition Improvements,
as specified in Article II hereof. Upon completion of all of the Acquisition Improvements
and the payment of all costs thereof, any remaining funds in the Acquisition and
Construction Fund (less any amount determined by the City as necessary to reserve for
claims against the account) (i) shall be applied to pay the costs of any additional
Acquisition Improvements eligible for acquisition with respect to the Project as approved
by the Authority and, to the extent not so used, (ii) shall be applied by the Authority [to
call Bonds or to reduce Special Taxes as the Authority shall determine][as provided in
Section 10427.1 of the Code to pay a portion of the assessments levied on the Project
property in the Assessment District.
Section 1.04. No Local Agency Liability; Local Agency Discretion; No Effect
on Other Agreements. In no event shall any actual or alleged act by the Local Agency or ,
any actual or alleged omission or failure to act by the Local Agency with respect to SCIP
subject the Local Agency to monetary liability therefor. Further, nothing in this Agreement
shall be construed as affecting the Developer's or the Local Agency's duty to perform
their respective obligations under any other agreements, public improvement standards,
land use regulations or subdivision requirements related to the Project, which obligations
are and shall remain independent of the Developer's and the Local Agency's rights and
obligations under this Agreement.
ARTICLE II
DESIGN, CONSTRUCTION AND ACQUISITION OF ACQUISITION IMPROVEMENTS
Section 2.01. Letting and Administering Design Contracts. The parties
presently anticipate that the Developer has awarded and administered or will award and
administer engineering design contracts for the Acquisition Improvements to be acquired
from Developer. All eligible expenditures of the Developer for design engineering and
related costs in connection with the Acquisition Improvements (whether as an advance to
the Local Agency or directly to the design consultant) shall be reimbursed at the time of
acquisition of such Acquisition Improvements. The Developer shall be entitled to
reimbursement for any design costs of the Acquisition Improvements only out of the
Acquisition Price as provided in Section 2.03 and shall not be entitled to any payment for ,
design costs independent of or prior to the acquisition of Acquisition Improvements.
S
. Section 2.02. Letting and Administration of Construction Contracts;
Indemnification. State law requires that all Acquisition Improvements not completed prior
to the formation of the District shall be constructed as if they were constructed under the
direction and supervision, or under the authority, of the [Local Agency]. In order to assure
compliance with those provisions, except for any contracts entered into prior to the date
hereof, Developer agrees to comply with the requirements set forth in Exhibit C hereto
with respect to the bidding and contracting for the construction of the Acquisition
Improvements. The Developer agrees that all the contracts shall call for payment of
prevailing wages as required by the Labor Code of the State of California. The
Developer's indemnification obligation set forth in Section 3.01 of this Agreement shall
also apply to any alleged failure to comply with the requirements of this Section, and/or
applicable State laws regarding public contracting and prevailing wages.
Section 2.03. Sale of Acquisition Improvements. The Developer agrees to
sell to the [Local Agency] each Acquisition Improvement to be constructed by Developer
(including any rights-of-way or other easements necessary for the Acquisition
Improvements, to the extent not already publicly owned), when the Acquisition
Improvement is has been constructed and is complete in compliance with the
requirements of the Local Agency and to the satisfaction of the Local Agency for an
amount not to exceed the lesser of (i) the Available Amount or (ii) the Actual Cost of the
Acquisition Improvement. Exhibit A, attached hereto and incorporated herein, contains a
list of the Acquisition Improvements. Portions of an Acquisition Improvement eligible for
Installment Payments prior to completion of the entire Acquisition Improvement are
described as eligible, discrete and usable portions in Exhibit A (each, an "Eligible
Portion"). At the time of completion of each Acquisition Improvement, or Eligible Portion
thereof, the Developer shall deliver to the Local Agency Engineer a written request for
acquisition, accompanied by an Actual Cost Certificate, and by executed Title Documents
for the transfer of the Acquisition Improvement where necessary. In the event that the
Local Agency Engineer finds that the supporting paperwork submitted by the Developer
fails to demonstrate the required relationship between the subject Actual Cost and eligible
work, the Local Agency Engineer shall advise the Developer that the determination of the
Actual Cost (or the ineligible portion thereof) has been disallowed and shall request
further documentation from°the Developer. If the further documentation is still not
adequate, the Local Agency Engineer may revise the Actual Cost Certificate to delete any
disallowed items and the determination shall be final and conclusive.
Certain soft costs for the Acquisition Improvements, such as civil engineering, may
have been incurred pursuant to single contracts that include work relating also to the
private portions of the Project. In those instances, the total costs under such contracts
will be allocated to each Acquisition Improvement as approved by the Local Agency
Engineer. Where a specific contract has been awarded for design or engineering work
relating solely to an Acquisition Improvement, one hundred percent (100%) of the costs
under the contract will be allocated to that Acquisition Improvement. Amounts allocated
' to an Acquisition Improvement will be further allocated among the Eligible Portions of that
Acquisition Improvement, if any, in the same proportion as the amount to be reimbursed
for hard costs for each Eligible Portion bears to the amount to be reimbursed for hard
costs for the entire Acquisition Improvement. Costs will be allocated to each Acquisition
7
Improvement as approved by the Local Agency Engineer. The costs of certain
environmental mitigation required to mitigate impacts of the public and private portions of I the Project will be allocated to each Acquisition Improvement as approved by the Local
Agency Engineer.
In the event that the Actual Cost is in excess of the Available Amount, the Local
Agency shall withdraw the Available Amount from the Acquisition Account and transfer
said amount to the Developer and such transfer shall constitute full payment for the
Acquisition Improvement. The Local Agency shall be under no responsibility to make
payment for the Acquisition Improvement from any funds of the Local Agency. In the
event that the Actual Cost is less than the Available Amount, the Local Agency shall
withdraw an amount from the Acquisition Account equal to the Actual Cost, and shall
transfer said amount to the Developer. Any amounts then remaining in the Acquisition
Account shall be applied as provided in Section 1.03.
In no event shall the Local Agency be required to pay the Developer more than the
amount on deposit in the Acquisition Account at the time such payment is requested.
Section 2.04. Conditions Precedent to Payment of Acquisition Price.
Payment to the Developer or its designee of the Acquisition Price for an Acquisition
Improvement from the Acquisition and Construction Fund shall in every case be
conditioned first upon the determination of the Local Agency Engineer, pursuant to
Section 2.03, that the Acquisition Improvement satisfies all Local Agency regulations and
ordinances and is otherwise complete and ready for acceptance by the Local Agency, '
and shall be further conditioned upon satisfaction of the following additional conditions
precedent:
(a) The Developer shall have provided the Local Agency with lien
releases or other similar documentation satisfactory to the Local Agency Engineer as
evidence that none of the property (including any rights-of-way or other easements
necessary for the operation and maintenance of the Acquisition Improvement, to the
extent not already publicly owned) comprising the Acquisition Improvement, and the
property which is subject to the [assessments/Special Taxes] of the District, is not subject
to any prospective mechanics lien claim respecting the Acquisition Improvements.
(b) All due and payable property taxes, and installments of
[assessments/Special Taxes] shall be current on property owned by the Developer or
under option to the Developer that is subject to the lien of the District.
(c) The Developer shall certify that it is not in default with respect to any
loan secured by any interest in the Project.
(d) The Developer shall have provided the Local Agency with Title
Documents needed to provide the Local Agency with title to the site, right-of-way, or
easement upon which the subject Acquisition Improvements are situated. All such Title
Documents shall be in a form acceptable to the Local Agency (or applicable governmental '
agency) and shall convey Acceptable Title. The Developer shall provide a policy of title
8
' insurance as of the date of transfer in a form acceptable to the Local Agency Engineer
insuring the Local Agency as to the interests acquired in connection with the acquisition
of any interest for which such a policy of title insurance is not required by another
agreement between the Local Agency and the Developer. Each title insurance policy
required hereunder shall be in the amount equal to or greater than the Acquisition Price.
Section 2.05. SCIP Requisition. Upon a determination by the Local Agency
Engineer to pay the Acquisition Price of the Acquisition Improvements pursuant to Section
2.04, the Local Agency Engineer shall cause a SCIP Requisition to be submitted to the
Program Administrator. The Program Administrator will review the SCIP Requisition and
forward it with instructions to the SCIP Trustee and the SCIP Trustee shall make payment
directly to the Developer of such amount pursuant to the SCIP Trust Agreement. The
Local Agency and the Developer acknowledge and agree that the SCIP Trustee shall
make payment strictly in accordance with the SCIP Requisition and shall not be required
to determine whether or not the Acquisition Improvements have been completed or what
the Actual Costs may be with respect to such Acquisition Improvements. The SCIP
Trustee shall be entitled to rely on the SCIP Requisition on its face without any further
duty of investigation.
". OWI[a]acm
MISCELLANEOUS
' Section 3.01. Indemnification and Hold Harmless. The Developer hereby
assumes the defense of, and indemnifies and saves harmless the Local Agency, the
Authority, and each of its respective officers, directors, employees and agents, from and
against all actions, damages, claims, losses or expenses of every type and description to
which they may be subjected or put, by reason of, or resulting from or alleged to have
resulted from the acts or omissions of the Developer or its agents and employees in the
performance of this Agreement, or arising out of any contract for the design, engineering
and construction of the Acquisition Improvements or arising out of any alleged
misstatements of fact or alleged omission of a material fact made by the Developer, its
officers, directors, employees or agents to the Authority's underwriter, financial advisor,
appraiser, district engineer or bond counsel or regarding the Developer, its proposed
developments, its property ownership and its contractual arrangements contained in the
official statement relating to the SCIP financing (provided that the Developer shall have
been furnished a copy of such official statement and shall not have objected thereto); and
provided, further, that nothing in this Section 3.01 shall limit in any manner the Local
Agency's rights against any of the Developer's architects, engineers, contractors or other
consultants. Except as set forth in this Section 3.01, no provision of this Agreement shall
in any way limit the extent of the responsibility of the Developer for payment of damages
resulting from the operations of the Developer, its agents and employees. Nothing in this
Section 3.01 shall be understood or construed to mean that the Developer agrees to
' indemnify the Local Agency, the Authority or any of its respective officers, directors,
employees or agents, for any negligent or wrongful acts or omissions to act of the Local
Agency, Authority its officers, employees, agents or any consultants or contractors.
0
Section 3.02. Audit. The Local Agency shall have the right, during normal
business hours and upon the giving of ten days' written notice to the Developer, to review '
all books and records of the Developer pertaining to costs and expenses incurred by the
Developer (for which the Developer seeks reimbursement) in constructing the Acquisition
Improvements.
Section 3.03. Cooperation. The Local Agency and the Developer agree to
cooperate with respect to the completion of the SCIP financing for the Acquisition
Improvements. The Local Agency and the Developer agree to meet in good faith to
resolve any differences on future matters which are not specifically covered by this
Agreement.
Section 3.04. General Standard of Reasonableness. Any provision of this
Agreement which requires the consent, approval or acceptance of either party hereto or
any of their respective employees, officers or agents shall be deemed to require that such
consent, approval or acceptance not be unreasonably withheld or delayed, unless such
provision expressly incorporates a different standard. The foregoing provision shall not
apply to provisions in the Agreement which provide for decisions to be in the sole
discretion of the party making the decision.
Section 3.05. Third Party Beneficiaries. The Authority and its officers,
employees, agents or any consultants or contractors are expressly deemed third party
beneficiaries of this Agreement with respect to the provisions of Section 3.01. It is
expressly agreed that, except for the Authority with respect to the provisions of Section ,
3.01, there are no third party beneficiaries of this Agreement, including without limitation
any owners of bonds, any of the Local Agency's or the Developer's contractors for the
Acquisition Improvements and any of the Local Agency's, the Authority's, or the
Developer's agents and employees.
Section 3.06. Conflict with Other Agreements. Nothing contained herein
shall be construed as releasing the Developer or the Local Agency from any condition of
development or requirement imposed by any other agreement between the Local Agency
and the Developer, and, in the event of a conflicting provision, such other agreement shall
prevail unless such conflicting provision is specifically waived or modified in writing by the
Local Agency and the Developer.
Section 3.07. Notices. All invoices for payment, reports, other
communication and notices relating to this Agreement shall be mailed to:
10
If to the Local Agency:
ICity of San Juan Capistrano
[Address to Come]
If to the Developer:
[Developer]
[Address to Come]
Either party may change its address by giving notice in writing to the other party.
Section 3.08. Severability. If any part of this Agreement is held to be illegal
or unenforceable by a court of competent jurisdiction, the remainder of this Agreement
shall be given effect to the fullest extent reasonably possible.
' Section 3.09. Governing Law. This Agreement and any dispute arising
hereunder shall be governed by and interpreted in accordance with the laws of the State
of California.
Section 3.10. Waiver. Failure by a party to insist upon the strict
performance of any of the provisions of this Agreement by the other party, or the failure
by a party to exercise its rights upon the default of the other party, shall not constitute a
waiver of such party's right to insist and demand strict compliance by the other party with
the terms of this Agreement.
Section 3.11. Singular and Plural; Gender. As used herein, the singular of
any word includes the plural, and terms in the masculine gender shall include the
feminine.
Section 3.12. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original.
Section 3.13. Successors and Assigns. This Agreement is binding upon the
heirs, assigns and successors -in -interest of the parties hereto. The Developer may not
assign its rights or obligations hereunder, except to successors -in -interest to the property
within the District, without the prior written consent of the Local Agency.
' Section 3.14. Remedies in General. It is acknowledged by the parties that
the Local Agency would not have entered into this Agreement if it were to be liable in
damages under or with respect to this Agreement or the application thereof, other than
II
for the payment to the Developer of any (i) moneys owing to the Developer hereunder, or
(ii) moneys paid by the Developer pursuant to the provisions hereof which are '
misappropriated or improperly obtained, withheld or applied by the Local Agency.
In general, each of the parties hereto may pursue any remedy at law or equity
available for the breach of any provision of this Agreement, except that the Local Agency
shall not be liable in damages to the Developer, or to any assignee or transferee of the
Developer other than for the payments to the Developer specified in the preceding
paragraph. Subject to the foregoing, the Developer covenants not to sue for or claim any
damages for any alleged breach of, or dispute which arises out of, this Agreement.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
12
' IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year written above.
CITY OF SAN JUAN CAPISTRANO
ATTEST:
City Clerk
M
a
Mayor
[DEVELOPER],
a [here indicate type of legal entity]
I By
(Signature)
(Print Name)
13
Exhibit A to the Acquisition Agreement
DESCRIPTION OF ACQUISITION IMPROVEMENTS AND BUDGETED AMOUNTS '
ACQUISITION IMPROVEMENTS
2.
9
Ij
BUDGETED AMOUNTS
14
' Exhibit B to The Acquisition Agreement
FORM OF SCIP REQUISITION
To: BLX Group LLC
SCIP Program Administrator
777 S. Figueroa St., Suite 3200
Los Angeles, California 90017
Attention: Vo Nguyen
Fax: 213-612-2499
Re: Statewide Community Infrastructure Program
The undersigned, a duly authorized officer of the CITY OF SAN JUAN CAPISTRANO
hereby requests a withdrawal from the [DEVELOPER] ACQUISITION ACCOUNT, as
follows:
Request Date: [Insert Date of Request]
Name of Developer: [Developer]
Withdrawal Amount: [Insert Acquisition Price]
' Acquisition Improvements: [Insert Description of Acquisition Improvement(s) from Ex. A]
Payment Instructions: [Insert Wire Instructions or Payment Address for
Developer]
The undersigned hereby certifies as follows:
1. The Withdrawal is being made in accordance with a permitted use of such monies
pursuant to the Acquisition Agreement, and the Withdrawal is not being made for the
purpose of reinvestment.
2. None of the items for which payment is requested have been reimbursed
previously from other sources of funds.
3. If the Withdrawal Amount is greater than the funds held in the [Developer]
Acquisition Account, the SCIP Program Administrator is authorized to amend the amount
requested to be equal to the amount of such funds.
4. To the extent the Withdrawal is being made prior to the date bonds have been
issued on behalf of SCIP, this withdrawal form serves as the declaration of official intent
of the CITY OF SAN JUAN CAPISTRANO, pursuant to Treasury Regulations 1.150-2, to
reimburse with respect expenditures made from the Developer Acquisition Account listed
above in the amount listed above.
15
CITY OF SAN JUAN CAPISTRANO
By: '
Title:
16
' EXHIBIT C TO RESOLUTION
ELIGIBLE FACILITIES AND FEES
Eligible facilities and fees that may be financed by a CFD formed by CSCDA through
SCIP include all improvements and fees authorized under the Mello -Roos Act, including
but not limited to the following:
Transportation Improvements
Eligible roadway improvements include, but are not limited to: acquisition of land and
easements; roadway design; project management; bridge crossings and culverts;
clearing, grubbing, and demolition; grading, soil import/export, paving (including slurry
seal), and decorative/enhanced pavement concrete and/or pavers; joint trenches,
underground utilities and undergrounding of existing utilities; dry utilities and
appurtenances; curbs, gutters, sidewalks, bike trails (including onsite and off-site),
enhanced fencing, and access ramps; street lights, signalization, and traffic signal control
systems; bus turnouts; signs and striping; erosion control; median and parkway
landscaping and irrigation; entry monumentation; bus shelters, bus and transit
improvements including transfer stations and regional public transit improvements;
masonry walls; traffic control and agency fees; and other improvements related thereto.
Eligible improvements for the roads listed herein also include any and all necessary
underground potable and recycled water, sanitary sewer, and storm drainage system
improvements.
Water System Improvements
Authorized facilities include any and all water facilities designed to meet the needs of
development within the CFD. These facilities include, but may not be limited to: water
storage, treatment and distribution facilities including waterlines and appurtenances, gate
valves, pressure reducing stations, flow meters, fire hydrants, and other improvements
related thereto such as site clearing, grading and paving; curbs and gutters; booster pump
stations & power; stand-by generators; site lighting, drainage, sanitary sewer, and water
service; landscaping and irrigation; access gates, and fencing; and striping and signage.
Recycled Water System Improvements
Authorized facilities include any and all recycled water system facilities designed to meet
the needs of development within the CFD. These facilities include, but may not be limited
to: treatment and distribution facilities including pipelines and appurtenances, gate valves,
flow meters, booster pump pressurization system, and other improvements related
thereto - such as site clearing, grading and paving; curbs and gutters; booster pump
stations; stand-by generators; site lighting, drainage, sanitary sewer, and water service;
landscaping and irrigation; access gates, and fencing; and striping and signage.
I
Drainage System Improvements
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4127-1035-4216.3
Authorized facilities include any and all drainage and storm drain improvements designed
to meet the needs of development within the CFD. These facilities include, but may not '
be limited to: excavation and grading, pipelines and appurtenances, outfalls and water
quality measures, detention/retention basins, drainage pretreatment facilities, drainage
ways/channels, pump stations, landscaping and irrigation; access roads, gates, and
fencing; and striping and signage and other improvements related thereto.
Wastewater System Improvements
Authorized facilities include any and all wastewater facilities designed to meet the needs
of development within the CFD. These facilities include, but may not be limited to,
pipelines and all appurtenances thereto; manholes; tie-in to existing main lines; force
mains; lift stations; upgrades to existing lift stations; odor -control facilities; and permitting
related thereto; and related sewer system improvements.
Park, Parkway and Open Space Improvements
Authorized facilities include any and all improvements to parks, parkways and open space
required for development within the CFD. These facilities include, but may not be limited
to: grading, turf, shrubs and trees, landscaping irrigation, site lighting, drainage, sanitary
sewer and water service, pedestrian and bicycle trails, protective fencing (including
soundwalls), pedestrian/bicycle bridges, storm drain crossings, wetland mitigation, hawk
mitigation for authorized facilities herein, access gates and fencing and related open
space improvements. Authorized facilities include acquisition of any and all parkland as '
well as open space/bike trail/public access easements required for development within
the CFD.
School and Educational Facilities
Authorized facilities include classroom renovation, updates to school safety and security
systems, technology improvements, energy efficiency improvements, school
modernization and retrofitting, and new classroom and school construction as required
for development within the CFD.
Development Impact Fees
Authorized facilities include the direct funding of any of the above referenced facility types
for which the Local Agency collects a development impact fee.
Other Incidental Expenses and Bond Issuance Costs
In addition to the above facilities, other incidental expenses as authorized by the Mello -
Roos Community Facilities Act of 1982, including, but not limited to, the cost of planning
and designing the facilities (including the cost of environmental evaluation, remediation
and mitigation); engineering and surveying; construction staking; utility relocation and
demolition costs incidental to the construction of the public facilities; costs of '
project/construction management; costs (including the costs of legal services) associated
with the formation of the CFD; issuance of bonds (if any); determination of the amount of
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4127-1035-4216.3
' taxes; collection of taxes; payment of taxes; costs of calculating and providing
reimbursements from one-time special tax payments; or costs otherwise incurred in order
to carry out the authorized purposes of the CFD; and any other expenses incidental to
the formation and implementation of the CFD and to the construction, completion,
inspection and acquisition of the authorized facilities.
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4127.10354216.3
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EXHIBIT D TO RESOLUTION
FORM OF INCREASED DEMANDS CERTIFICATE
I
To: California Statewide Communities Development Authority
Re: Statewide Community Infrastructure Program — Community Facilities District for
Pro'ec
The undersigned, a duly authorized officer of the CITY OF SAN JUAN CAPISTRANO
hereby certifies that the public capital improvements and development impact fees
identified below are necessary to meet increased demands placed upon the Local Agency
as a result of development within the proposed community facilities district for the
[Project]:
[List improvements/fees here]
CITY OF SAN JUAN CAPISTRANO
-32
Title:
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4127-10354216.3
' Exhibit E to Resolution
CITY OF SAN JUAN CAPISTRANO CONTACTS FOR SCIP PROGRAM
Primary Contact
Name:
Title:
Mailing Address:
Delivery Address (if different):
E-mail:
Telephone:
Fax:
Secondary Contact
Name:
' Title:
Mailing Address:
Delivery Address (if different):
E-mail:
Telephone:
Fax:
[Add additional contacts as needed]
E-1
4127-10354216.3