1995-0919_FOOTHILL / EASTERN TRANS CORRIDOR AGENCY_AgreementAGREEMENT REGARDING COLLECTION OF IMPACT FEES
FOOTHILL/EASTERN TRANSPORTATION CORRIDOR AGENCY
THIS AGREEMENT REGARDING COLLECTION OF IMPACT FEES is
entered into this 19th day of Sept ., 1995, by and between the Foothill/Eastern
Transportation Corridor Agency and the City of San Juan Capistrano.
WHEREAS, San Juan Capistrano ("Member") is a member of the Foothill/Eastern
Transportation Corridor Agency ("Agency"), a joint powers authority duly formed
pursuant to Government Code Sections 6500 et seq. and a First Amended and Restated
Joint Exercise of Powers Agreement Creating the Agency ("JPA"),
WHEREAS, the Agency was formed for the purpose of studying, designing,
financing, constructing and operating a toll facility in the County of Orange ("Corridor");
WHEREAS, approximately half of the cost of the Corridor is expected to be paid
from development impact fees ("DIFS") collected on behalf of the Agency by the
Member at the time of the issuance of a building permit with respect to development of
land within the area of benefit of the Corridor and remitted to the Agency in accordance
with the Major Thoroughfare and Bridge Fee Program attached to the TPA and
incorporated therein ("Program");
WHEREAS, in Section 4.3 of the JPA the Member agrees to collect and hold the
DIFS in trust for the Agency and the holders of the Agency's bonds and financial
institutions providing credit enhancement with respect to the Agency's bonds and to pay
the DIFS to the Agency in quarterly installments, within forty five days after the end of
each quarter;
WHEREAS, the parties hereto want to modify the procedures for the collection
and remittance of DIFS to give additional assurances to the holders of the Agency's
bonds and such financial institutions that DIFS will be collected on behalf of and remitted
to the Agency in a timely manner;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
contained herein, the parties hereto agree as follows:
SECTION 1. Member shall collect all DIFS in the form of cash, check or
cashier's check made payable to the Agency or, if funds have been deposited in trust for
payment of fees by developer, the Member shall issue a warrant for those DIFS, and shall
remit DIFS collected for the previous week(s) at least monthly to the Agency lockbox at:
Foothill/Eastern Transportation Corridor Agency
File No. 53610
Los Angeles, CA 90074-3610
After July 1, 1995, the remittance address is:
Foothill/Eastern Transportation Corridor Agency
c/o First Interstate Bank of California
Corporate Trust Department
707 Wilshire Blvd., W11-1
Los Angeles, CA 90017
SECTION 2. Member hereby ratifies and reaffirms its obligations under the JPA,
the Program and local law to collect the DIFS in trust and to remit the DIFS to the
Agency, except as modified herein.
SECTION 3. In the event that the Agency is unable to convert any instrument
used to pay the DIFS to cash for any reason, the Agency shall immediately provide
telephonic notice of such nonpayment, and on the same day, mail written notice of such
nonpayment, to the Member which collected the DIFS. Upon such telephonic notice, the
Member shall endeavor to not undertake any further activity to process or otherwise
approve the development or any permits relating thereto. The Member shall not, for any
reason, be liable to the Agency should the Member fail to cease such activities. The
Agency shall defend and indemnify any Member for and against any claim or legal action
arising from that Member's cessation of such activities. The Agency shall be directly
responsible for collecting any DIFS after providing notice of nonpayment as set forth in
this Section and the Member shall cooperate with Agency in such collection effort,
including but not limited to assigning or authorizing Agency the right to directly collect
unpaid DIFS on behalf of the Member. The Agency shall provide written notice to the
Member that the DIFS have been paid prior to the Member's resumption of any activity
in connection with approval of the development.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
Regarding Collection of Impact Fees as of the date first -above written.
San
By:
Its:
er
San Joaquin Hills Transportation Corridor Agency
Its: Chief Executive Officer
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September 22, 1995
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1776
Ms. Kathy Besnard
Manager of Administrative Services
Transportation Corridor Agencies
201 East Sandpointe Avenue, Suite 200
P. O. Box 28870
Santa Ana, California 92799-8870
Re: Collection of Developer Impact Fees
Dear Ms. Besnard:
MEMBERS OF THE CITY COUNCIL
COL EIE CAMPBELL
VVI HART
OIL JONES
CAAOLYN NASH
DAVID SWERDLIN
CITY MANAGER
At their meeting of September 19, 1995, the City Council of the City of San Juan
Capistrano approved agreements with the Foothill/Eastern Transportation Corridor Agency
and the San Joaquin Hills Transportation Corridor Agency which institute new procedures
for collecting and remitting development impact fees. The Agreements have been signed
by the City Manager and two copies each are enclosed. Upon signature by the Chief
Executive Officer of each Agency, please return a copy to the City Clerk's office.
Thank you for your assistance in this matter.
Very truly yours,
er I oh�rSon G��
Ch y J
City Clerk
Enclosure
cc: Director of Administrative Services
32400 PASEO ADELANTO. SAN JUAN CAPISTRANO, CALIFORNIA 92675 0 (714) 493-1171
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New Equipment Equipment Being Replaced
. Full size 1/2 -ton 2 -wheel drive pickup 1987 Ford 1 -ton flatbed - Unit 4135
1 -ton flatbed truck with lift gate 1987 Ford 1 -ton flatbed - Unit 4136
Mid-size 4 -wheel drive utility truck 1988 GMC utility 40 truck - Unit 4148
ll. COOPERATIVE AGREEMENT WITH SAN JOAOUiN HILLS
TRANSPORTATION CORRIDOR AGENCY - RANCHO VIEJO ROAD
WIDENING PROJECT. VILLAGE ROAD TO TRABUCO CREEK (600,50)
As set forth in the Report dated September 19, 1995, from the Engineering and Building
Director, the Cooperative Agreement between the City of San Juan Capistrano and the San
Joaquin Hills Transportation Corridor Agency (TCA) was approved to widen the 800 -foot,
two-lane portion of Rancho Viejo Road between Village Road and Trabuco Creek. The work
will be performed concurrently with the Corridor project by the TCA's contractor, California
Corridor Constructors, for a cost of $107,986 with the use of advanced funding received from
the Orange County Transportation Authority MRAP Program. The City Manager was
authorized to execute the Agreement on behalf of the City. Council Member Swerdlin
expressed appreciation to Council Members Jones and Campbell and Mr. Huber for their
efforts in this matter.
. As set forth in the Report dated September 19, 1995, from the Administrative Services
Director, the Agreements between the City of San Juan Capistrano and the Foothill/Eastern
Transportation Corridor Agency and the San Joaquin Hills Transportation Corridor Agency
were approved to modify the procedures for collecting Developer Impact Fees. To mitigate
any potential impacts from the County's bankruptcy situation, the modifications will require
all fees collected by the City on behalf of the Transportation Corridor Agency to be remitted
on separate checks and forwarded to the Transportation Corridor Agency directly on a
monthly basis rather than co -mingled with City funds. The City Manager was authorized to
execute the Agreements on behalf of the City.
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As set forth in the Report dated September 19, 1995, from the Engineering and Building
Director, the request by the Mission San Juan Capistrano was approved for the temporary
street closure of Ortega Highway from Camino Capistrano to EI Camino Real from 2:30 p.m.
to 3:15 p.m. on Saturday, October 7, 1995, for the proposed historical re-enactment event.
• City Council Minutes -6- 9/19/95
AGENDA ITEM September 19, 1995
TO: George Scarborough, City Manager
FROM: Cindy Pendleton, Administrative Services Director
SUBJECT: Consideration of Agreement Regarding Collection of Developer Impact Fees
(Foothill Eastern Transportation Corridor Agency and San Joaquin Hills
Transportation Corridor Agency)
RECOMMENDATION:
By Motion, approve the agreements and authorize the City Manager to execute the agreements.
SITUATION:
Currently, Developer Impact Fees collected by the City of San Juan Capistrano on behalf of the
Transportation Corridor Agencies (TCA) have been collected in accordance with the Major
Thoroughfare and Bridge Program as part of the City's membership in the Agency. This program
provides for fees to be collected at the time of building permit issuance along with other City fees.
These fees are held by the City and forwarded at the end of each quarter. These fees are remitted
and collected in a timely manner and in accordance with TCA policies.
In light of the recent Orange County bankruptcy, the TCA has taken steps to insure the protection
of the development impact fees and a more steady cash flow. One step in accomplishing their goal
is a modification to the procedures used for collection of Developer Impact Fees by various agencies.
These new procedures require that all fees collected by the City on behalf on the TCA be remitted
on separate checks issued in favor of the TCA and that these checks be forwarded to the TCA
directly rather than co -mingled with City funds. This process is similar to that of School Fees and
any other agency fee required to be collected at building permit issuance. Additionally, this manner
of collection and remittance will give additional assurances to the holders of the Agency's bonds and
such financial institutions with which the Agency has dealings. Draft agreements to accomplish this
purpose are attached. Staff recommends the City Council approve the agreements and authorize the
City Manager to execute the agreements.
COMMISSIONS/COMMITTEE REVIEW AND RECOMMENDATIONS:
None
FOR CITY COUNCIL AC -E.,"75 1311�
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ACEND ITEM -2- September 19, 1995
FINANCIAL CONSIDERATIONS:
Currently, Administrative Services maintains trust accounts for these funds. This new process will
not cost the City any additional staff time and will most likely result in reduced staff time once
implemented.
NOTIFICATION:
Ms. Kathy Besnard
Manager of Administrative Services
201 E. Sandpointe Ave., Suite 200
P.O. Box 28870
Santa Ana, California 92799-8870
ALTERNAIM ACTIONS:
By Motion, approve agreements and authorize the City Manager to execute agreements.
2. Do not approve agreement and direct staff to continue collecting fees in accordance with the
Major Thoroughfare and Bridge Fee Program.
3. Request additional information from staff.
RECOMMENDATION:
By Motion, approve agreements and authorize the City Manager to execute agreements.
Respectfully Sub/mitte ,
1.
Cy a L. Pendleton
Administrative Services Director
Attachments 1. Agreement Regarding Collection of Impact Fees - Foothill/Eastern TCA
2. Agreeemm Regarding Collection of Impact Fees - San Joaquin Hills TCA
F
October 6, 1995
Ms. Colleen Clark
Director of Finance
Transportation Corridor Agencies
P. O. Box 28870
Santa Ana, CA 92799-8870
Dear Ms. Clark:
MEMBERS OF THE CITY COUNCIL
COLLENE CAMPBELL
WYATT HART
GILJONES
CAROLYN NASH
DAVID SWERDUN
CITY MANAGER
GEORGESCARSOROUGH
In reply to your letter of October 3, enclosed is an executed Amended and Restated
Member Notice and Acknowledgment.
Please contact me if we may be of any further assistance.
Sincerely,
00Y -c-- 114-1 �/,�
George Scarborough
City Manager
GS:dh
Enclosure
32400 PASEO ADELANTO. SAN JUAN CAPISTRANO, CALIFORNIA 92675 0 (714) 493-1171
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This AMENDED AND RESTATED MEMBER NOTICE AND
ACKNOWLEDGEMENT (the "Notice and Acknowledgement") is given by
FOOTHILIJEASTERN TRANSPORTATION CORRIDOR AGENCY (the "Agency") and
FIRST INTERSTATE BANK OF CALIFORNIA, as trustee (the "Trustee") and
acknowledged by CITY OF SAN JUAN CAPISTRANO (the "Member").
WHEREAS, in order to implement the Major Thoroughfare and Bridge Fee
Program on a regional basis and to provide a means to finance, design and construct a toll
road for the Foothill/Eastern Transportation Corridor ("FooffidYEastem Transportation
Corridor System"), the County of Orange (the "County") and certain cities within the County
(collectively, the "Members") have entered into a First Amended and Restated Joint Exercise
of Powers Agreement, dated as of October 17, 1988 (the "Joint Powers Agreement") creating
the Agency; and
WHEREAS, in recognition of the particular transportation needs to be
addressed in the County, the California Legislature enacted laws codified as Section 50029
and Section 66484.3 of the California Government Code, authorizing the Members to require
the payment of Development Impact Fees for the purpose of financing the cost of bridges and
major thoroughfares within the County; and
WfEEREAS, the Agency has determined it necessary and advisable to provide
for the issuance from time to time of its Toll Road Revenue Bonds (the "Bonds") and other
evidences of its indebtedness from time to time for the purpose of paying costs of the
Foothill/Eastern Transportation Corridor System, including the 1995 Project (as defined in
the Second Supplemental Indenture); and
WHEREAS, the Agency has determined it necessary and advisable to issue
Bonds pursuant to the Master Indenture of Trust dated as of May 15, 1995, by and between
the Agency and the Trustee (the "Master Indenture") including Bonds designated as the
Series 1995B -E (Variable Rate) Bonds (the "Series 1995 (Variable Rate) Bonds") under the
conditions and subject to the limitations set forth in the Master Indenture as supplemented by
the Second Supplemental Indenture of Trust, as amended (the "Second Supplemental
Indenture") by and between the Agency and the Trustee; and
WHEREAS, the Agency's obligations to the banks providing letters of credit
to support the Series 1995 (Variable Rate) Bonds (the "Banks") and to Morgan Guaranty
Trust Company of New York (the "Swap Provider") in respect of the interest rate swap
relating to the Series 1995 (Variable Rate) Bonds, will be secured in part by a security
interest in all present and future Development Impact Fees, all rights to receive Development
Impact Fees and all of the Agency's rights under the Joint Powers Agreement relating to
SM -73%e.1 135623 -MBR -09/01/95
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receipt and collection of Development Impact Fees and the proceeds of the foregoing (the
"Collateral");
1. Notice is hereby given that pursuant to section 7.5(b) of the Second
Supplemental Indenture, the Agency has pledged and assigned to the Trustee and granted to
the Trustee a security interest in all of the Agency's present or future right, title and interest
in and to the Collateral, for the exclusive benefit of the Banks and the Swap Provider.
2. The Member hereby acknowledges the Trustee's security interest in the
Collateral.
3. The Member agrees that (i) it shall collect all Development Impact Fees
on behalf of the Agency; (ii) such Development Impact Fees are the property of the Agency
and the Member has no beneficial interest therein; (iii) until such Development Impact Fees
have been paid to the Agency, the Member shall hold all such Development Impact Fees in
trust for the benefit of the Agency and the Trustee acting for the benefit of the Banks and the
Swap Provider; (iv) the Member shall segregate such Development Impact Fees from its
other revenues and identify on its books and records such Development Impact Fees as
belonging to the Agency; and (v) the Member shall pay all Development Impact Fees directly
to the Trustee at the address specified by the Trustee or by wire transfer to the account
specified by the Trustee.
4. For purposes of this Notice and Acknowledgement, "Development
Impact Fees" means the fees collected by the Member as a condition of approval of a final
map or as a condition of approval of a building permit pursuant to Section 66484.3 of the
California Government Code, the Joint Powers Agreement and the ordinances adopted by
such Member.
SF3.739881 2 13-%-23-MBR-09101/95
7
5. This Notice and Acknowledgement is subject to California law and is
given in order to perfect and protect the security interest of the Trustee in the Collateral.
This Member Notice and Acknowledgement amends and restates the Member Notice and
Acknowledgement executed by the Member on June 1, 1995 and supersedes that certain
Member Notice and Acknowledgement dated July 7, 1993 executed by the Agency and
Morgan Guaranty Trust Company of New York and acknowledged by the Member.
FOOTEWJEASTERN TRANSPORTATION
CORRIDOR AGENCY
By:
Title:
FIRST INTERSTATE BANK OF CALIFORNIA,
as Trustee
By:
Title:
Acknowledged and Agreed:
CITY OF SAN JUAN CAPISTRANO
Dated: October 5, 1995
SP3-73986.1 3 135673-)aR-09101/95
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This MEMBER NOTICE AND ACKNOWLEDGMENT is given by
FOOTHILUEASTERN TRANSPORTATION CORRIDOR AGENCY (the "Agency") and
FIRST INTERSTATE BANK OF CALIFORNIA, as trustee (the "Trustee') and acknowledged
by the City of San Juan Capistrano (the "Member') as of 6/1 , 1995.
WHEREAS, in order to implement the Major Thoroughfare and Bridge Fee Program on a
regional basis and to provide a means to finance, design and construct a toll road for the
Foothill/Eastern Transportation Corridor ("Foothill/Eastern Transportation Corridor System"),
the County of Orange (the "County") and certain cities within the County (collectively, the
"Members') have entered into a First Amended and Restated Joint Exercise of Powers
Agreement, dated as of October 17, 1988 (the "Joint Powers Agreement") creating the Agency;
and
WHEREAS, in recognition of the particular transportation needs to be addressed in the
County, the California Legislature enacted laws codified as Section 50029 and Section 66484.3
of the California Government code, authorizing the Members to require the payment of
Development Impact Fees for the purpose of financing the cost of bridges and major
thoroughfares within the County; and
WHEREAS, the Agency has determined it necessary and advisable to provide for the
issuance from time to time of its Toll Road Revenue Bonds (the "Bonds") and other evidences of
its indebtedness from time to time for the purpose of paying costs of the Foothill/Eastem
Transportation Corridor System, including the 1995 Project (as defined in the Second
Supplemental Indenture); and
WHEREAS, the Agency has determined it necessary and advisable to issue Bonds
pursuant to the Master Indenture of Trust dated as of 6/1 , 1995, by and between the Agency
and the Trustee (the "Master Indenture') including a series of Bonds designated as the Series
1995B (Variable Rate) Bonds (the "Series 1995B Variable Rate Bonds") under the conditions
and subject to the limitations set forth in the Master Indenture as supplemented by the Second
Supplemental Indenture of Trust (the "Second Supplemental Indenture") dated as of __6/l , 1995
by and between the Agency and the Trustee; and
WHEREAS, the Agency's obligations to the owners of the Series 1995B Variable Rate
Bonds and to the banks providing letters of credit to support such Bonds (the `Banks") will be
secured in part by a security interest in all Development Impact Fees, all rights to receive
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Development Impact Fees and all of the Agency's rights under the Joint Powers Agreement, in
respect of such Development Impact Fees and the proceeds of the foregoing (the "Collateral"),
1. Notice is hereby given that pursuant to section 7.5(b) of the Second Supplemental
Indenture, the Agency has pledged and assigned to the Trustee and granted to the Trustee or will
hereafter pledge, assign and grant to the Trustee a security interest in all of the Agency's present
or future right, title and interest in and to the collateral, for the exclusive benefit of the Banks and
the owners of the Series 1995B Variable Rate Bonds.
2. The Member hereby acknowledges the Trustee's security interest in the
Collateral.
3. The Member agrees that (a) it shall collect all Development Impact Fees on behalf
of the Agency; (b) such Development Impact Fees are the property of the Agency and the
Member has no beneficial interest therein; (c) until such Development Impact Fees have been
paid to the Agency , the Member shall hold all such Development Impact Fees in trust for the
benefit of the Agency and the Trustee acting for the benefit of the Banks and the owners of the
Series 1995B Variable Rate Bonds; (d) the Member shall segregate such Development Impact
Fees from its other revenues and identify on its books and records such Development Impact
Fees as belonging to the Agency; (e) the Member shall pay all Development Impact Fees directly
to the Trustee at the address specified by the Trustee or by wire transfer to the account specified
by the Trustee.
4. For purposes of this Notice and Acknowledgment, "Development Impact Fees"
means the fees collected by the Member as a condition of approval of a final map or as a
condition of approval of a building permit pursuant to Section 66484.3 of the California
Government Code, the Joint Powers Agreement and the ordinances adopted by such Member.
E
5. This Notice and Acknowledgment is subject to California law and is given in
order to perfect and protect the security interest of the Trustee in the Collateral. This Notice and
Acknowledgment supersedes that certain Member Notice and Acknowledgment dated July 7,
1993 executed by the Agency and Morgan Guaranty Trust Company of New York and
acknowledged by the Member.
FOOTHILL/EASTERN TRANSPORTATION
CORRIDOR AGENCY
By:
Title: e6ee . 1l P
FIRST INTERSTATE BANK OF CALIFORNIA
AS TRUSTEE
Acknowledged and Agreed:
San.
S7
Title
Dated: May 18, 1995
CCO426A