HomeMy WebLinkAboutR-11460 authorizing the City to join the Statewide Community Infrastructure Program (SCIP)R 11460
RESOLUTION NO. 11460 (2023 SERIES)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN LUIS
OBISPO, CALIFORNIA, AUTHORIZING THE CITY TO JOIN THE
STATEWIDE COMMUNITY INFRASTRUCTURE PROGRAM;
AUTHORIZING THE CALIFORNIA STATEWIDE COMMUNITIES
DEVELOPMENT AUTHORITY TO ACCEPT APPLICATIONS FROM
PROPERTY OWNERS, CONDUCT SPECIAL ASSESSMENT
PROCEEDINGS AND LEVY ASSESSMENTS AND SPECIAL TAXES
AND TO FORM ASSESSMENT DISTRICTS AND COMMUNITY
FACILITIES DISTRICTS WITHIN THE TERRITORY OF THE CITY OF
SAN LUIS OBISPO; 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 Luis Obispo (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, as one of the Programs under the Joint Powers Agreement, 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
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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
other things, finance public improvements necessary to meet increased demands placed
upon local agencies as a result of development; and
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 assessments 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; and
WHEREAS, both the Authority and the City are “local agencies” under the Mello-
Roos Act; and
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; and
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 finance Fees payable by such property owners and Improvements; and
WHEREAS, the City has previously presented Resolution No. 10959 of the City
Council of the City of San Luis Obispo, authorizing the City to join the Statewide
Community Infrastructure Program; authorizing the California Statewide Communities
Development Authority to accept applications from property owners, conduct special
assessment proceedings and levy assessments within the territory of the City of San Luis
Obispo; approving a form of acquisition agreement; and authorizing related actions (the
“Original Resolution”), and such Original Resolution was adopted on November 13, 2018;
and
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WHEREAS, the City now wishes to amend and restate the Original Resolution;
and
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 Amended and Restated Resolution pursuant to Section 10104 of the
Streets and Highways Code; and
WHEREAS, there has also been presented to this meeting proposed forms of
Acquisition Agreement (the “Acquisition Agreement”), copies of which are 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
Developer requests acquisition financing as part of its SCIP 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, pursuant to SCIP, the Authority periodically issues Local Obligations
on behalf of the local agency participants in SCIP to provide financing for the Fees and
Improvements and then concurrently issues its revenue bonds pursuant to the Marks-
Roos Local Bond Pooling Act of 1985, consisting of Article 4 (commencing with Section
6584) of Chapter 5, Division 7, Title 1 of the California Government Code (the “Marks-
Roos Act”), the proceeds of which are used to purchase the Local Obligations; and
WHEREAS, pursuant to Government Code Section 6586.5, notice was published
at least five days prior to the adoption of this Amended and Restated Resolution at a
public hearing, which was duly conducted by this City Council concerning the significant
public benefits of SCIP and the financing of the Improvements and the public capital
improvements to be paid for with the proceeds of the Fees; and
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of San Luis
Obispo as follows:
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SECTION 1. This Amended and Restated 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.
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:
a) Such proceedings are conducted pursuant to one or more Resolutions of Intention in
substantially the form of the ROI; and
b) 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 assessments in 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.
SECTION 3. The Joint Powers Agreement, together with the terms and provisions
of this Amended and Restated 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 Amended and Restated Resolution, the
Authority has no power to finance City Fees and/or City Improvements (as such terms
are defined herein) in proceedings under the Mello-Roos 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 Amended and Restated 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,
savings in effective interest rate, bond preparation, bond underwriting and bond issuance
costs, and the more efficient delivery of local agency services to residential and
commercial development within the City.
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SECTION 5. The Authority has adopted Local Goals and Policies as required by
Section 53312.7 of the Mello-Roos 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.
SECTION 7. Pursuant to the Mello-Roos Act and this Amended and Restated
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.”
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 Amended and
Restated 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.
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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 Amended
and Restated Resolution) nor will the City be or be considered to be an issuer of the Local
Obligations nor any 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
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each Other Local Agency shall have no responsibility in that regard. The City reserves
the right, as respects 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 facilities agreements with each Other Local Agency naming the City
and its officers, agents and employees as Indemnified Parties with respect to each Other
Local Agency’s respective Improvements and the improvements to be constructed or
acquired with 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
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. 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.
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SECTION 17. The forms of the Acquisition Agreement attached hereto as Exhibit
B are hereby approved, and the City Manager or such officer’s designee (the “Authorized
Officer”) is authorized to execute, and deliver to the Participating Developer or, as
applicable, the appropriate property owner representative, an Acquisition Agreement on
behalf of the City in substantially said forms, 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 18. 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 19. The City hereby consents to the formation of the CFDs in
accordance with this Amended and Restated 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.
SECTION 20. The terms of the Agreement embodied by this Amended and
Restated 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 21. Except to the extent of the indemnifications extended to each Other
Local Agency in the Agreement embodied by this Amended and Restated 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 Amended and Restated Resolution, and
nothing in this Amended and Restated 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 Amended and Restated Resolution.
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SECTION 22. 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 23. 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 24. 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.
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SECTION 25. This Amended and Restated Resolution shall take effect
immediately upon its adoption. The City Clerk of the City of San Luis Obispo is hereby
authorized and directed to transmit a certified copy of this Amended and Restated
Resolution to the Secretary of the Authority. This Amended and Restated Resolution shall
remain in force with respect to any Assessment District and CFD formed 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. The Original Resolution shall remain in force with
respect to any SCIP application approved by the City and any Assessment District formed
pursuant to its authority until all Local Obligations have been retired and the authority to
levy the assessment conferred by any assessment proceedings carried out pursuant to
the Original Resolution has ended or is otherwise terminated.
Upon motion of Vice Mayor Marx, seconded by Mayor Stewart, and on the
following roll call vote:
AYES: Council Member Francis, Pease, Shoresman, Vice Mayor Marx, and
Mayor Stewart
NOES: None
ABSENT: None
The foregoing resolution was adopted this 14th day of November 2023.
___________________________
Mayor Erica A. Stewart
ATTEST:
___________________________
Teresa Purrington, City Clerk
APPROVED AS TO FORM:
___________________________
J. Christine Dietrick, City Attorney
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the
City of San Luis Obispo, California, on ______________________.
___________________________
Teresa Purrington, City Clerk
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Table of Contents for Exhibits A - F
• Exhibit A to Resolution – Form of Resolution of Intention
o Includes Exhibit A to the Resolution of Intention – Description of Work
o Exhibit A to the Amended and Restated Resolution is itself a form of
resolution of intention (ROI) to be adopted by the joint powers authority
(CSCDA) in connection with any assessment district, which will include any
assessment districts formed within the jurisdiction of the City. It is attached
for purely legal and informational purposes, and it is NOT for adoption by
the City Council.
• Exhibit B to Resolution – Form of Acquisition Agreement
o Includes Exhibit A to the Acquisition Agreement – Description of Acquisition
Improvements and Budgeted Amounts
o Includes Exhibit B to the Acquisition Agreement – Form of SCIP Requisition
o Includes Exhibit C to the Acquisition Agreement – Draft Working Acquisition
Agreement for the East Airport/ Fiero Project (as of November 2023)
Includes Exhibit A to the Draft Working Acquisition Agreement for East Airport/
Fiero Project – Description of the Acquisition Improvements, Eligible Portions
and Budgeted Amounts
Includes Exhibit B to the Draft Working Acquisition Agreement for East Airport/
Fiero Project – Disbursement Request Form
Includes Exhibit C to the Draft Working Acquisition Agreement for East Airport/
Fiero Project – Bidding, Contracting and Construction Requirements for
Acquisition Improvements
o Exhibit B is the form of Acquisition Agreement template which has been
revised from the form approved by City Council in its original SCIP
resolution (No. 10959, adopted on November 13, 2018) to include provisions
relating to community facilities districts. Also included in the draft working
Acquisition Agreement as of November 2023 and it’s associated exhibits.
• Exhibit C to Resolution – Eligible Facilities and Fees
o Exhibit C is a form of improvements and fees eligible for financing from any
community facilities district formed within the City’s boundaries.
• Exhibit D to Resolution – Form of Increased Demand Certificate
o Exhibit D is a form of increased demands certificate to be executed by the
City when CSCDA SCIP receives an application for the formation of a
community facilities district within the City’s boundaries, to specify the
actual fees and improvements to be funded for that community facilities
district.
• Exhibit E to Resolution – City of San Luis Obispo Contact for SCIP Program
• Exhibit F to Resolution – Certification of Resolution
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B-2
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 OF PROJECT])
[CITY OF _________], [COUNTY OF _________], 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/County] of [__________] 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 __________], [County of __________] (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 __________],
[County of __________], State of California,” 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 __________], [County of __________],
State of California”;
WHEREAS, the [City/County] of [__________] 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;
NOW, THEREFORE, BE IT RESOLVED that the Commission of the California
Statewide Communities Development Authority hereby finds, determines and resolves as follows:
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Section 1. The above recitals are true and correct.
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.
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.
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 __________] within fifteen (15)
days of the adoption of this resolution.
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.
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.
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.
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.
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.
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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.
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.
PASSED AND ADOPTED by the California Statewide Communities Development
Authority this ___ day of ______, 20__.
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 _____ __ , 20__.
By
Authorized Signatory
California Statewide Communities
Development Authority
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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/County] of [__________] 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]
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EXHIBIT B TO THE RESOLUTION
FORMS OF ACQUISITION AGREEMENT
_____________________
CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY
STATEWIDE COMMUNITY INFRASTRUCTURE PROGRAM
ACQUISITION AGREEMENT
BY AND BETWEEN
CITY OF SAN LUIS OBISPO
AND
[DEVELOPER]
Dated as of _______, 20__
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ACQUISITION AGREEMENT
Recitals
A. The parties to this Acquisition Agreement (the “Agreement”) are the
[CITY/COUNTY] OF [__________], (the “Local Agency”), and [DEVELOPER], a [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 [__________],
20[_], 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 [__________],
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.
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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 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 Exhibit A (Acquisition Improvements and the
Eligible Portions thereof) and Exhibit B (Form of Requisition), which are incorporated into this
Agreement for all purposes.
In consideration of Recitals A through I, inclusive, and the mutual covenants, undertakings
and obligations set forth below, the Local Agency and the Developer agree as stated below.
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 “[Name of 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.
“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.
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“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.
“Agreement” means this Acquisition Agreement, dated as of [_______________], 20[_].
“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.
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“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 Luis Obispo.
“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
Acquisition Account (as defined in Section 1.03 below), neither the Developer nor the Local
Agency shall have 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.
Upon completion of the SCIP financing, the Available Amount will be deposited by the Authority
in the Acquisition Account.
The Authority will cause the SCIP Trustee to establish and maintain an account (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.
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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 Local Agency 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 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.
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.
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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 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
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 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. 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.
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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:
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.
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.
The Developer shall certify that it is not in default with respect to any loan secured by any interest
in the Project.
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 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.
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ARTICLE III
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.
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,
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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:
If to the Local Agency:
City of San Luis Obispo
[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.
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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 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year
written above.
CITY OF SAN LUIS OBISPO
By:
[City Manager]
ATTEST:
City Clerk of the City of San Luis Obispo
By:
[DEVELOPER],
a [here indicate type of legal entity]
By:
Signature
Print Name
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Exhibit A to the Acquisition Agreement
DESCRIPTION OF ACQUISITION IMPROVEMENTS AND BUDGETED AMOUNTS
[To be completed based on Final Engineer’s Report]
Funding includes amounts for incidental costs associated with the capital improvements,
including, but not limited to, contingency, design, engineering, and construction management.
ACQUISITION IMPROVEMENTS TOTAL AMOUNT *
[_] ........................................................................................................ $[_]
[_] ........................................................................................................ $[_]
* Estimated. Acquisition Price will be determined based on Actual Cost as further described in this Acquisition
Agreement.
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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 LUIS OBISPO 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 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 LUIS OBISPO, pursuant to Treasury Regulations 1.150-2, to reimburse with respect
expenditures made from the Acquisition Account listed above in the amount listed above.
CITY OF SAN LUIS OBISPO
By:
Title:
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Exhibit C to the Acquisition Agreement
DRAFT WORKING ACQUSITION AGREEMENT FOR THE EAST AIRPORT/FIERO
PROJECT (AS OF NOVEMBER 2023)
_____________________
CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY
STATEWIDE COMMUNITY INFRASTRUCTURE PROGRAM
FUNDING AND ACQUISITION AGREEMENT
BY AND BETWEEN
THE CITY OF SAN LUIS OBISPO
AND
[FIERO LANE WATER COMPANY][EAST AIRPORT PARK ASSOCIATION]
Dated as of _____, 2023
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FUNDING AND ACQUISITION AGREEMENT
This Funding and Acquisition Agreement (the “Agreement”) is entered into as of the first
day of July, 2023 by and between the City of San Luis Obispo, California, a municipal corporation
and charter city (the “City”) and [Fiero Lane Water Company, a California corporation][East
Airport Park Association, a California nonprofit corporation] (the “Owner Representative”),
authorized to conduct business in the State of California.
Recitals
A. Certain landowners have applied for the financing of certain public capital
improvements (the “Acquisition Improvements”) and fees, capacity charges and fair share
contributions (together, the “Fees”) through the California Statewide Communities Development
Authority (the “Authority”) and its Statewide Community Infrastructure Program (“SCIP”) in
connection with the annexation of 59-acres into the City of San Luis Obispo, pursuant to the
Airport Area Specific Plan. The Acquisition Improvements are to be owned and operated by the
City, and the financing is to be accomplished through either a community facilities district under
and pursuant to the Mello-Roos Community Facilities Act of 1982, being California Government
Code Sections 53311 et seq. (the “Mello Roos Act”) or an assessment district under and pursuant
to the Municipal Improvement Act of 1913 (Streets and Highways Code Sections 10000 and
following (the “1913 Act”).
B. The Authority intends to levy assessments or special taxes, as applicable, and issue
bonds, in one or more series, to fund, among other things, all or a portion of the costs of the
Acquisition Improvements and Fees. The portion of the proceeds of the assessments, special taxes
and bonds allocable to the cost of the Acquisition Improvements and Fees, together with interest
earned thereon, is referred to herein as the “Available Amount.”
C. The Authority will provide financing for the acquisition by the City of the
Acquisition Improvements and the payment of the Acquisition Price (as defined herein) of the
Acquisition Improvements, or to provide for a credit to the landowners for the Fees, from the
Available Amount. Attached hereto as Exhibit A is a description of the Acquisition
Improvements[, including authorized discrete and usable portions,] and a description of the Fees.
D. The parties anticipate that, upon completion of the Acquisition Improvements and
subject to the terms and conditions of this Agreement, the City will acquire the completed
Acquisition Improvements to the extent of the Available Amount.
E. Any and all monetary obligations of the City arising out of this Agreement are the
special and limited obligations of the City payable only from the Available Amount, and no other
funds whatsoever of the City shall be obligated therefor under any circumstances.
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ARTICLE I
DEFINITIONS; COMMUNITY FACILITIES 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 City Engineer in his or her sole discretion not to interfere with the
intended use and therefore are not required to be cleared from the title.
“Acquisition and Construction Fund” means any fund or account established by the
Authority for deposit of assessments, special taxes or proceeds of bonds for the purpose of paying
the Acquisition Price of the Acquisition Improvements.
“Acquisition Improvement” means a public capital improvement described in Exhibit A
hereto, provided that such improvement has also been included as an eligible improvement
pursuant to the assessment district or community facilities district to be formed for the Property.
“Acquisition Price” means the amount paid to the Owner Representative upon acquisition
of an Acquisition Improvement and/or any Eligible Portion as provided in Section 2.03, equal to
the lesser of the Actual Cost or the Available Amount.
“Actual Cost” means the cost of construction of an Acquisition Improvement and/or any
Eligible Portion, as documented by the Owner Representative to the satisfaction of the City and as
certified by the City Engineer in an Actual Cost Certificate including, without limitation, (a) the
Owner Representative’s cost of constructing such Acquisition Improvement including grading,
labor, material and equipment costs, (b) the Owner Representative’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 Owner Representative’s cost of
any performance, payment and maintenance bonds and insurance, including title insurance,
required hereby for such Acquisition Improvement, (d) the Owner Representative’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
City or its designee, (e) the Owner Representative’s cost of environmental evaluation or mitigation
required for such Acquisition Improvement, and (f) the amount of any fees actually paid by the
Owner Representative to governmental agencies in order to obtain permits, licenses or other
necessary governmental approvals and reviews for such Acquisition Improvement.
“Actual Cost Certificate” means a certificate prepared by the Owner Representative
detailing the Actual Cost of an Acquisition Improvement, or an Eligible Portion thereof, to be
acquired hereunder, as may be revised by the City Engineer pursuant to Section 2.03. An Actual
Cost Certificate shall include such necessary information (including invoices, receipts, worksheets
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and other evidence of cost as necessary) in sufficient detail to allow the City Engineer to verify
the Acquisition Price of any Acquisition Improvement or Eligible Portion.
“Agreement” means this Acquisition Agreement, dated as of _____, 2023.
“Authority” means the California Statewide Communities Development Authority.
“Available Amount” shall have the meaning assigned to the term in Recital B.
“City” means the City of San Luis Obispo, a municipal corporation and charter city.
“City Engineer” means the Engineer of the City or his/her designee who will be responsible
for administering the acquisition of the Acquisition Improvements hereunder.
“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,
and for funding Fees in substantially the form contained in Exhibit B hereto.
“Eligible Portion” shall have the meaning ascribed to it in Section 2.03 below.
“Fee” means a water demand offset fee, sewer capacity charge, fair share contribution or
other similar charge or fee imposed by the City on the Owner Representative eligible for funding
from the Available Amount and more particularly described in Exhibit A attached hereto.
“Installment Payment” means an amount equal to ninety percent (90%) of the Actual Cost
of an Eligible Portion.
“Owner Representative” means [Fiero Lane Water Company, a California
corporation][East Airport Park Association, a California nonprofit corporation], and its successors
and assigns.
“Property” means the property annexed to the City of San Luis Obispo as part of the Fiero
Lane/East Airport Annexation.
“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) necessary or convenient to the operation, maintenance, rehabilitation and
improvement by the City 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 an
Acquisition Improvement (other than said real property interests) to the City, where applicable.
Section 1.02. Establishment of Assessment District or Community Facilities District. Owner
Representative has requested the City to permit the Authority to provide for financing of the
Acquisition Improvements and Fees through the establishment and authorization of an assessment
district or community facilities district. Owner Representative and the City agree to reasonably
cooperate with one another and with the Authority in the formation of such financing district and
completion of the financing through the issuance of the bonds in one or more series.
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Section 1.03. No City Liability; City Discretion; No Effect on Other Agreements. In no event
shall any actual or alleged act by the City or any actual or alleged omission or failure to act by the
City with respect to the assessment district, community facilities district or bonds subject the City
to monetary liability therefor. Further, nothing in this Agreement shall be construed as affecting
the Owner Representative’s or the City’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 Owner
Representative’s and the City’s rights and obligations under this Agreement.
ARTICLE II
DESIGN, CONSTRUCTION AND ACQUISITION OF ACQUISITION IMPROVEMENTS;
CREDITS FOR FEES
Section 2.01. Letting and Administering Design Contracts. The Owner Representative has
awarded and administered, or will award and administer, on behalf of the landowners within the
Property, engineering design contracts for the Acquisition Improvements to be acquired from
Owner Representative. Any such work shall be paid for and conducted by the Owner
Representative, and all eligible expenditures of the Owner Representative for design engineering
and related costs in connection with the Acquisition Improvements (whether as an advance to the
City or directly to the design consultant) shall be reimbursed at the time of acquisition of the
Acquisition Improvements. The Owner Representative 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.
Section 2.02. Letting and Administration of Construction Contracts; Indemnification;
Construction. State law requires that all Acquisition Improvements shall be constructed as if they
were constructed under the direction and supervision, or under the authority, of the City. In order
to assure compliance with those provisions, except for any contracts entered into prior to the date
hereof, Owner Representative agrees to comply with the rules and regulations of the City for letting
and administering said contracts. The Owner Representative agrees that all contracts for
Acquisition Improvements shall call for payment of prevailing wages as required by the Labor
Code of the State of California. The Owner Representative further agrees that it shall comply with
the procedures for public bidding and contracting specified in the attached Exhibit C. By
submitting a request for payment of the Acquisition Price or an Eligible Portion, the Owner’s
Representative certifies that it has complied with this Section 2.02. The Owner Representative’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 Owner Representative agrees to
sell to the City each Acquisition Improvement to be constructed by Owner Representative
(including any rights-of-way or other easements necessary for the operation and maintenance of
the Acquisition Improvements, to the extent not already publicly owned), when the Acquisition
Improvement is completed to the satisfaction of the City for an amount not to exceed the lesser of
(i) the Available Amount, or (ii) the Actual Cost of the Acquisition Improvement. Exhibit A,
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attached hereto and incorporated herein, contains a list of the Acquisition Improvements. At the
time of completion of each Acquisition Improvement the Owner Representative shall deliver to
the City Engineer a written request for acquisition, accompanied by an Actual Cost Certificate and
any other documents requested by the City Engineer, and by executed Title Documents for the
transfer of the Acquisition Improvement where necessary. In the event that the City Engineer finds
that the supporting paperwork submitted by the Owner Representative fails to demonstrate the
required relationship between the subject Actual Cost and the related Acquisition Improvement,
the City Engineer shall advise the Owner Representative that the determination of the Actual Cost
(or the ineligible portion thereof) has been disallowed and shall request further documentation
from the Owner Representative. If such further documentation is still not adequate, the City
Engineer may revise the Actual Cost Certificate to delete any disallowed items and the
determination shall be final and conclusive.
Section 2.04. Conditions Precedent to Payment of Acquisition Price. Payment by the City
to the Owner Representative from the Acquisition and Construction Account or its designee of the
Acquisition Price for an Acquisition Improvement from the Acquisition and Construction Fund
shall be conditioned first upon the determination of the City Engineer, pursuant to Section 2.03, in
consultation with the City, that the Acquisition Improvement is complete and ready for acceptance
by the City, and shall be further conditioned upon prior satisfaction of the following additional
conditions precedent:
(a) The Owner Representative shall have provided the City with lien releases
or other similar documentation satisfactory to the City Engineer as evidence that the Acquisition
Improvement is not subject to any prospective mechanics lien claim, and the Owner Representative
shall provide to the City such evidence or proof as the City shall require that all persons, firms and
corporations supplying work, labor, materials, supplies and equipment on behalf of the Owner
Representative for the construction of the Acquisition Improvement has been paid, and that there
are no claims by or on behalf of any such person, firm or corporation.
(b) All due and payable property taxes, installments of assessments and special
taxes shall be current on the Property.
(c) The Owner Representative shall have provided the City with Title
Documents needed to provide the City with title to the site, right-of-way, or easement upon which
the subject Acquisition Improvement is situated. All such Title Documents shall be in a form
acceptable to the City and shall convey Acceptable Title. The Owner Representative shall provide
a policy of title insurance as of the date of transfer in a form acceptable to the City Engineer and
the City’s counsel insuring the City 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 City and the Owner Representative. Each title insurance policy required hereunder
shall be in the amount equal to the Acquisition Price.
(d) The Owner Representative shall certify that it is not in default with respect
to any loan secured by any interest with respect to this Agreement.
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Section 2.05. Payment for Eligible Portions. The Owner Representative shall submit an
Actual Cost Certificate to the City Engineer with respect to any Eligible Portion. Payment to the
Owner Representative or its designee from the Acquisition and Construction Fund of an
Installment Payment with respect to such Eligible Portion shall in every case be conditioned first
upon the determination of the City Engineer, pursuant to Section 2.03, in consultation with the
City, that the Eligible Portion has been completed to the satisfaction of the City and, where
appropriate, is ready for acceptance by the City, and shall be further conditioned upon satisfaction
of the following additional conditions precedent:
(a) If applicable, shall have provided the City with lien releases or other similar
documentation satisfactory to the City Engineer as evidence that the Acquisition Improvement is
not subject to any prospective mechanics lien claim, and the Owner Representative shall provide
to the City such evidence or proof as the City shall require that all persons, firms and corporations
supplying work, labor, materials, supplies and equipment on behalf of the Owner Representative
for the construction of an Eligible Portion has been paid, and that there are no claims by or on
behalf of any such person, firm or corporation.
(b) All due and payable property taxes, installments of assessments and special
taxes shall be current on the Property.
(c) If applicable, the Owner Representative shall have provided the City with
Title Documents needed to provide the City with title to the site, right-of-way, or easement upon
which the subject Eligible Portion is situated. All such Title Documents shall be in a form
acceptable to the City Engineer and shall be sufficient, upon completion of the Acquisition
Improvement of which the Eligible Portion is a part, to convey Acceptable Title.
(d) Payment and performance bonds, from a bonding company with an A.M.
Best rating of at least “A-” or its equivalent, applying to Plans and Specifications for the
Acquisition Improvement approved by the City, shall be in place to secure completion of the
Acquisition Improvement of which the Eligible Portion is a part.
(e) The Owner Representative shall certify that it is not in default with respect
to any loan secured by any interest with respect to this Agreement.
Section 2.06. Disbursement Request Form – Acquisition Improvements or Eligible Portions.
Upon a determination by the City Engineer and the City to pay the Acquisition Price of an
Acquisition Improvement pursuant to Section 2.04 or to pay an Installment Payment for an Eligible
Portion pursuant to Section 2.05, the City Engineer shall cause a Disbursement Request Form
substantially in the form attached hereto as Exhibit B to be submitted to the Authority or to the
trustee designated by the Authority and shall make payment as directed therein. The City and the
Owner Representative acknowledge and agree that the Authority shall make payment strictly in
accordance with the Disbursement Request Form and shall not be required to determine whether
or not the Acquisition Improvement or Eligible Portion has been completed or what the Actual
Costs may be with respect to the Acquisition Improvement or Eligible Portion. The Authority
shall be entitled to rely on the executed Disbursement Request Form on its face without any further
duty of investigation.
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In the event that the Actual Cost of an Acquisition Improvement or the Installment Payment
for an Eligible Portion is in excess of the Available Amount, the Authority shall withdraw or cause
to be withdrawn all of the Available Amount. The Owner Representative may submit a
supplemental request for payment of the unpaid Actual Cost from any subsequent increases in the
Available Amount as a result of assessments, special taxes or bond proceeds being deposited to
the Acquisition and Construction Fund.
Section 2.07. Fee Payment Credits. The Owner Representative may elect to fund all or
a portion of Fees directly from the Available Amount to the extent of funds available. In such
case, Owner Representative shall submit a written request to City specifying (i) the description of
the Fees and amount requested to be funded and (ii) the APNs, lot numbers (or other applicable
description) for which the Fees are payable. The City shall thereafter submit a written request to
the Authority to apply the requested portion of the Available Amount to the funding of such Fees
and the City shall provide a credit for the payment of such Fees in the records of the City, which
credit shall be applied to the benefit of the when the Fees would otherwise be due and payable
and the moneys shall be available to the City for payment of the costs of capital expenditures for
public capital improvements eligible for funding from the Acquisition and Construction Fund. The
Authority may establish or cause to be established separate accounts to reflect such allocation.
When the City has capital expenditures payable from the funded Fees, the City shall cause a
Disbursement Request Form substantially in the form attached hereto as Exhibit B to be submitted
to the Authority, and the Authority shall make or cause to be made payment directly to or at the
direction of the City.
Notwithstanding the foregoing, the Owner Representative and the City
acknowledge that proceeds of tax-exempt bonds have certain limitations under applicable federal
income tax laws. The City covenants to cooperate with the Authority and the Authority’s bond
counsel by providing representations and certifications regarding the use of the Fees and
Acquisition Improvements, the application of the Owner Representative’s Fee credits, and the
reasonably expected use of the Available Amount therefor to allow the Authority to determine the
Fees eligible for financing from such tax-exempt Bond proceeds. The City and the Owner
Representative further acknowledge that not all Fees and not all components of the Fees may be
eligible for application of tax-exempt Bond proceeds. The Owner Representative further
acknowledges that no case are the City or the Authority required to provide for the issuance of
bonds.
ARTICLE III
MISCELLANEOUS
Section 3.01. Indemnification and Hold Harmless. The Owner Representative hereby assumes
the defense of, and indemnifies and saves harmless the City, the Authority and their respective
officers, directors, employees and agents, including any custodian or trustee administering
proceeds, 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 Owner Representative or its contractors,
subcontractors, agents and employees arising out of any contract for the design, engineering and
construction of the Acquisition Improvements entered into by the Owner Representative, the
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financing of the Acquisition Improvements, the formation of the applicable financing district, the
levy of assessments or special taxes as applicable, the issuance of bonds, or arising out of any
alleged misstatements of fact or alleged omission of a material fact made by the Owner
Representative, its officers, directors, employees or agents to the Authority’s underwriter, financial
advisor, appraiser, district engineer or bond counsel or regarding the Owner Representative, its
proposed developments, its property ownership and its contractual arrangements contained in the
official statement relating to the Authority financing (provided that the Owner Representative shall
have been furnished a copy of the official statement and shall not have objected thereto); and
provided, further, that nothing in this Section 4.01 shall limit in any manner the City’s rights
against any of the Owner Representative’s architects, engineers, contractors or other consultants.
Except as set forth in this Section 4.01, no provision of this Agreement shall in any way limit the
extent of the responsibility of the Owner Representative for payment of damages resulting from
the operations of the Owner Representative, its agents and employees. Nothing in this Section
4.01 shall be understood or construed to mean that the Owner Representative agrees to indemnify
the City, the Authority or any of their respective officers, directors, employees or agents, for any
wrongful acts or omissions to act of the Authority or its officers, employees, agents or any
consultants or contractors and for any wrongful acts, willful misconduct, active negligence or
omissions to act of the City, or its officers, employees, agents or any consultants or contractors.
Section 3.02. Audit. The City shall have the right, during normal business hours and upon the
giving of ten days’ written notice to the Owner Representative, to review all books and records
of the Owner Representative pertaining to costs and expenses incurred by the Owner
Representative (for which the Owner Representative seeks reimbursement pursuant to this
Agreement) in constructing the Acquisition Improvements.
Section 3.03. Cooperation. The City and the Owner Representative agree to cooperate with
respect to the completion of the financing of the Acquisition Improvements and Fees by the
Authority through the formation of a financing district, levy of assessments or special taxes, and
issuance of bonds. The City and the Owner Representative 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 the consent, approval or acceptance
not be unreasonably withheld or delayed, unless the 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 City’s or the Owner Representative’s
contractors for the Acquisition Improvements and any of the City’s, the Authority's or the Owner
Representative’s agents and employees.
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Section 3.06. Conflict with Other Agreements. Nothing contained herein shall be construed as
releasing the Owner Representative or the City from any condition of development or requirement
imposed by any other agreement between the City and the Owner Representative, and, in the event
of a conflicting provision, the other agreement shall prevail unless the conflicting provision is
specifically waived or modified in writing by the City and the Owner Representative.
Section 3.07. Notices. All invoices for payment, reports, other communication and notices
relating to this Agreement shall be mailed to:
If to the City:
City of San Luis Obispo
990 Palm Street
San Luis Obispo, CA 93401
Attn:
If to the Owner Representative:
[Fiero Lane Water Company][East Airport Park Association]
Attn:
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; Venue. This Agreement and any dispute arising hereunder shall
be governed by and interpreted in accordance with the laws of the State of California. Any legal
action or proceeding concerning this Agreement shall be filed and prosecuted in the appropriate
California state court in the County of Riverside, California. Each party hereto irrevocably
consents to the personal jurisdiction of that court.
Section 3.10. Waiver; Time is of the Essence. 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. Time is of the essence of this Agreement and each and every provision thereof.
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.
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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 Owner Representative may not assign its rights or
obligations hereunder, except to successors-in-interest to the property within the City, without the
prior written consent of the City.
Section 3.14. Electronic Signatures. Each of the parties hereto agrees that the transaction
consisting of this Acquisition Agreement may be conducted by electronic means under the
Uniform Electronic Transactions Act (California Civil Code section 1633.1 et seq.) and California
Government Code section 16.5. Each party agrees, and acknowledges that it is such party’s intent,
that if such party signs this Acquisition Agreement using an electronic signature, it is signing,
adopting, and accepting this Indenture and that signing this Acquisition Agreement using an
electronic signature is the legal equivalent of having placed its handwritten signature on this
Acquisition Agreement on paper. Each party acknowledges that it is being provided with an
electronic or paper copy of this Acquisition Agreement in a usable format.
Section 3.15. Remedies in General. It is acknowledged by the parties that the City 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 for the payment to the Owner Representative of
any (i) moneys owing to the Owner Representative hereunder, or (ii) moneys paid by the Owner
Representative pursuant to the provisions hereof which are misappropriated or improperly
obtained, withheld or applied by the City.
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 City shall not be liable in damages
to the Owner Representative, or to any assignee or transferee of the Owner Representative other
than for the payments to the Owner Representative specified in the preceding paragraph. Subject
to the foregoing, the Owner Representative covenants not to sue for or claim any damages for any
alleged breach of, or dispute which arises out of, this Agreement.
DocuSign Envelope ID: 9E539C0C-34AC-4644-861D-BA079AB663FE
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year
written above.
CITY OF SAN LUIS OBISPO
By: __________________________________
[City Manager]
ATTEST
(City Clerk)
By:
(Print Name)
[FIERO LANE WATER COMPANY, A
CALIFORNIA CORPORATION] [EAST
AIRPORT PARK ASSOCIATION, A
CALIFORNIA NONPROFIT CORPORATION]
By:
(Signature)
(Print Name)
DocuSign Envelope ID: 9E539C0C-34AC-4644-861D-BA079AB663FE
B-32
EXHIBIT A TO THE DRAFT WORKING ACQUISITION AGREEMENT FOR EAST
AIRPORT/ FIERO PROJECT
DESCRIPTION OF ACQUISITION IMPROVEMENTS, ELIGIBLE
PORTIONS AND BUDGETED AMOUNTS
ACQUISITION IMPROVEMENTS BUDGETED AMOUNTS $
[West Side – Fierro Lane]
1. Water distribution system improvements including tie-ins,
testing, hydrants, water services, and appurtenances.
[_]
2. Fiero Lane concrete surface improvements including
sidewalk, driveway, ramp rehabilitation, and related
demolition items.
3. Fiero Lane asphalt surface rehabilitation including removal
and replacement of asphalt roadway, traffic control, and all
surface facilities demolition not included in other items.
4. Santa Fe Road concrete surface improvements including
sidewalk, driveway, ramp rehabilitation, and related
demolition items.
5. Santa Fe Road surface improvements and demolition
including removal and replacement of asphalt roadway,
traffic control, and related surface demolition.
6. Domestic water improvements and related fees.
7. Sewer improvements and related fees.
8. Irrigation improvements and related fees.
[East Side – East Airport]
1. Water distribution system improvements including tie-ins,
water mains, water meters, offsite PRV’s, testing, hydrants,
water services, and appurtenances as described in the Plans.
[_]
2. Fuller Road Flow monitoring station including electrical
service, meter, and related items as described in the Plans.
3. Sewer collection system improvements including tie-in,
manhole, manhole lining.
4. Concrete surface improvements including sidewalk, curb
ramps, aggregate base, and related work.
5. Slurry seal, signage, and striping, including traffic control.
6. Domestic water improvements and related fees.
7. Sewer improvements and related fees.
8. Irrigation improvements and related fees.
9. Traffic improvements and related fees.
All costs shown above are estimates of the costs of the Acquisition Improvements and are not
intended to limit the Acquisition Price of the Acquisition Improvements. The Acquisition Price of
the Acquisition Improvements will be the Actual Costs, as determined pursuant to Section 2.03 of
the Acquisition Agreement, less the oversized portion of the Acquisition Improvement, if any.
DocuSign Envelope ID: 9E539C0C-34AC-4644-861D-BA079AB663FE
B-33
EXHIBIT B TO THE DRAFT WORKING ACQUISITION AGREEMENT FOR THE
EAST AIRPORT/ FIERO PROJECT
DISBURSEMENT REQUEST FORM
(Acquisition Improvement or Eligible Portion)
To: [Authority or trustee/designee]
Attention: ____________________
Fax: ____________________
Phone: ____________________
Re: San Luis Obispo Annexation Project
Dated: ____________________
The undersigned, a duly authorized officer of the City of San Luis Obispo hereby requests
a withdrawal from the Acquisition and Construction Fund pertaining to the above referenced
project, as follows:
Request Date: [Insert Date of Request]
Name of Recipient: [Insert Recipient]
Withdrawal Amount: [Insert Acquisition Price/Installment Payment/Applied Fee
amount]
Acquisition
Improvements/Fees: [Insert Description of Acquisition Improvement(s)/
Eligible Portion(s)/Fees from Exhibit A]
Payment Instructions: [Insert Wire Instructions or Payment Address]
The undersigned hereby certifies as follows:
The Withdrawal is being made in accordance with a permitted use of the monies pursuant
to the Acquisition Agreement and the Withdrawal is not being made for the purpose of
reinvestment.
None of the items for which payment is requested have been reimbursed previously from
the Acquisition and Construction Fund.
If the Withdrawal Amount is greater than the funds held in the Acquisition and
Construction Fund, the Authority is authorized to pay the amount of such funds and to pay
remaining amount(s) as funds are subsequently deposited in the Acquisition and Construction
Fund, should that occur.
DocuSign Envelope ID: 9E539C0C-34AC-4644-861D-BA079AB663FE
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Capitalized terms used but not defined herein shall have the meanings ascribed thereto in
the Acquisition Agreement.
CITY OF SAN LUIS OBISPO
By: _______________________________
Title: ______________________________
DocuSign Envelope ID: 9E539C0C-34AC-4644-861D-BA079AB663FE
B-35
EXHIBIT C TO THE DRAFT WORKING ACQUISITION AGREEMENT FOR THE
EAST AIRPORT/ FIERO PROJECT
BIDDING, CONTRACTING AND CONSTRUCTION REQUIREMENTS FOR
ACQUISITION IMPROVEMENTS
The Owner Representative shall obtain bids for the construction of Acquisition
Improvements in conformance with the standard procedures and requirements of the City. With
respect to construction contracts awarded after approval of the Agreement, bids for construction
shall be received from at least three (3) qualified bidders. The Owner Representative may also
directly solicit bids. The bid package may consist of preliminary Plans and Specifications. All
such contractors shall (1) be required to provide proof of insurance throughout the term of the
construction of the Acquisition Improvements in conformance with the City’s standard procedures
and requirements, and (2) be required to furnish labor and material bonds and contract performance
bonds in an amount equal to one hundred percent (100%) of the contract price naming the Owner
Representative and City as obliges and issued by insurance or surety companies approved by the
City. Prior notification to the City of supplemental contract agreements or change orders shall only
be required for such change orders which in any way materially alter the quality or character of
the Acquisition Improvements, or which involve an amount equal to the greater of ten percent
(10%) of the amount of the applicable bid for the Acquisition Improvement.
The bidding response time shall be not less than ten (10) working days.
Contract(s) for the construction of the public Acquisition Improvements shall be awarded
to the qualified responsible contractor(s) submitting the lowest responsive bid(s), as determined
by the Owner Representative and in conformance with the standard procedures and public
contracting requirements of the City. Before awarding a contract for construction of Acquisition
Improvements, the Owner Representative shall certify in writing to the City that the bidding
process and contract award are in compliance with the City’s requirements and any Plans and
Specifications. The City retains the right, but not the obligation, to request that Owner
Representative provide all bids and the contract documents to the City to review for compliance
with these requirements.
The contractor to whom a contract is awarded shall be required to pay not less than the
prevailing rates of wages pursuant to Labor Code Sections 1770, 1773 and 1773.1. A current copy
of applicable wage rates shall be on file in the Office of the Clerk of the Board, as required by
Labor Code Section 1773.2. The Owner Representative, and bid and contract documents, shall
require all contractors to comply with applicable provisions of the California Labor Code and the
California Public Contract Code relating to public works projects of the City. Owner
Representative shall provide proof to the City, at reasonable intervals and in such form as the City
may require, that the foregoing requirements have been satisfied as to the Acquisition
Improvements.
The Owner Representative shall provide the City with certified payrolls.
Notwithstanding the foregoing provisions, contract letting procedures that differ from the
procedures in this Section shall be deemed to satisfy this Agreement if the Owner Representative
and the Local Agency agree in writing on such other contract letting procedures.
DocuSign Envelope ID: 9E539C0C-34AC-4644-861D-BA079AB663FE
B-36
EXHIBIT C TO THE 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.
Drainage System Improvements
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.
DocuSign Envelope ID: 9E539C0C-34AC-4644-861D-BA079AB663FE
B-37
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 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.
DocuSign Envelope ID: 9E539C0C-34AC-4644-861D-BA079AB663FE
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EXHIBIT D TO THE RESOLUTION
FORM OF INCREASED DEMANDS CERTIFICATE
To: California Statewide Communities Development Authority
Re: Statewide Community Infrastructure Program – Community Facilities District for
[Project]
The undersigned, a duly authorized officer of the CITY OF SAN LUIS OBISPO (the
“Local Agency”) 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 LUIS OBISPO
By:
Title:
DocuSign Envelope ID: 9E539C0C-34AC-4644-861D-BA079AB663FE
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EXHIBIT E TO THE RESOLUTION
CITY OF SAN LUIS OBISPO CONTACTS FOR SCIP PROGRAM
Primary Contact
Title: Community Development Director
Mailing Address: 919 Palm Street, San Luis Obispo, CA 93401
E-mail: ttway@slocity.org
Secondary Contact
Title: Financial Analyst – Infrastructure Investment
Mailing Address: 919 Palm Street, San Luis Obispo, CA 93401
E-mail: btaylor@slocity.org
Additional Contact
Title: Assistant City Manager
Mailing Address: 919 Palm Street, San Luis Obispo, CA 93401
E-mail: wmcdonald@slocity.org
DocuSign Envelope ID: 9E539C0C-34AC-4644-861D-BA079AB663FE
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EXHIBIT F TO THE RESOLUTION
CERTIFICATION OF RESOLUTION
I, the undersigned, the duly appointed and qualified City Clerk of the City of San Luis
Obispo, do hereby certify that the foregoing Resolution No. ___________ was duly adopted at a
regular meeting of the City Council of the City of San Luis Obispo duly and regularly held at the
regular meeting place thereof on the _______ day of __________, 2023, of which meeting all of
the members of said City Council had due notice and at which a majority thereof were present.
An agenda of said meeting was posted at least 72 hours before said meeting at
_____________________, a location freely accessible to members of the public, and a brief
description of said resolution appeared on said agenda.
Notice of public was published in [name of newspaper] at least 5 days prior to the
hearing.
I have carefully compared the foregoing with the original minutes of said meeting on file
and of record in my office, and the foregoing is a full, true and correct copy of the original
resolution adopted at said meeting and entered in said minutes.
Said resolution has not been amended, modified or rescinded since the date of its adoption
and the same is now in full force and effect.
Dated: _______________, 2023
_________________________________
City Clerk of the City of San Luis Obispo
By: ______________________________
Seal
DocuSign Envelope ID: 9E539C0C-34AC-4644-861D-BA079AB663FE