HomeMy WebLinkAboutAGENDA REPORT 2005 0921 CC REG ITEM 08CITEM S • a.
CITY OF MOORPARK, CALIFORNIA
City Council Meeting
of 9' R /-
ACTION: P A '�°rte -
MOORPARK CITY COUNCIL
AGENDA REPORT Way:
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TO: Honorable City Council By: �i» •"�`�
FROM: Hugh R. Riley, Assistant City Mana e
DATE: September 12, 2005 (CC Meeting of 9/21/05)
SUBJECT: Consider Formation of City of Moorpark Community
Facilities District No. 2004 -1 (Moorpark Highlands)
BACKGROUND
On September 1, 2004, Morrison /Pardee submitted a petition to the
City to initiate the process to form a Community Facilities
District for the Moorpark Highlands Project (Pardee) (the "CFD ").
The purpose of the CFD is to fund the construction of certain major
on- and off -site improvements, and to pay certain fees associated
with projects of this nature, as well as the acquisition of a 22-
acre school site for the Moorpark Unified School District and to
fund $1,000,000 for watershed protection flood control studies and
improvements. These funds will be available to the City within a
few weeks from the receipt of bond proceeds by the CFD Fiscal Agent
and they may be used at the City's sole discretion for flood
control, watershed protection and drainage studies and improvements
and related improvements.
In addition, the special tax to be levied on the property will
include a police services component in the annual amount of $400.
This fee will not be used for debt service, but will be used to
offset the fiscal impact of providing police services to new
residents. It will also include an inflation factor of 3% per year.
The funds will be available to the City for budgeting purposes for
fiscal year 2006 -2007. The CFD will continue in perpetuity to
sustain the services fee after the bonds are retired.
The City will also receive an up -front fee of $50,000 from bond
proceeds which is separate from the petition deposits, to off -set
the cost of setting up the administrative structure to administer
the CFD. The City will also collect a $50,000 annual administrative
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Honorable City Council
September 21, 2005
Page 2
fee. This will provide sufficient funds to cover in -house staff and
contracted service to provide the necessary financial, legal and
administrative services.
At its September 15, 2004 meeting, the City Council adopted
Resolution No. 2004 -2239 declaring its intention to establish
Community Facilities District No. 2004 -1 and Resolution 2004 -2240
declaring its intention to incur bonded indebtedness for Community
Facilities District No. 2004 -1 (Moorpark Highlands).
DISCUSSION
In order to finalize the formation of Community Facilities District
No. 2004 -1, the City Council is being asked to open the continued
public hearing, conduct a special election (relative to the matter
of levying a special tax and issuing bonds) , and adopt five (5)
resolutions and one (1) ordinance.
Since fewer then 12 people have been registered to vote within the
boundaries of the CFD for each of the 90 days preceding the
election, the Council (by adopting Resolution No. 2005- ), will
find that, for purposes of this special election, the qualified
electors are the landowners within the CFD, and that the vote shall
be by such landowners or their authorized representative, each
having one vote for each acre or portion therein such landowner
owns in the CFD.
Ballots have been sent out to the landowner and have been returned
to the City Clerk. In addition, the City Clerk has on -file, a
written waiver executed by all of the qualified electors allowing
for a shortening of the time for the special election.
The Mayor will open the continued public hearing and accept
testimony. As all of the qualified electors will have voted in
favor of the ballot measures, it is safe to assume that there will
be no public testimony. It is recommended that once the public
hearing is closed that the following action items be considered:
1. Resolution No. 2005 - "A Resolution Approving a
Funding, Construction, and Acquisition Agreement in
Connection With Community Facilities District No. 2004 -1
(Moorpark Highlands)"
This Resolution approves the agreement which sets out the
terms and conditions of how bond proceeds will be
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Honorable City Council
September 21, 2005
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dispersed to the developer for the construction of those
improvements listed in the agreement. It also spells out
that the developer has agreed that $1,000,000 will be
disbursed to the City out of bond proceeds, to fund
watershed protection and flood control and drainage
studies and improvements and related improvements at the
City's sole discretion.
2. Adoption of Resolution No. 2005- "A Resolution of
Formation of Community Facilities District and to Levy a
Special Tax in Community Facilities District No. 2004 -1
(Moorpark Highlands)." (Resolution of Formation)
By adopting this resolution, the CFD is formed and the
special tax lien on the land within the CFD is
established. Exhibit A, lists the authorized facilities
and services to be financed with the special tax.
Exhibit B is the Rate and Method as currently proposed,
which has been approved by the developer. The Special
Tax levy will impose an annual tax on each of the
properties within the Project that will range from $3,858
for a home of 2,151 square feet or less to $7,097 for a
home with greater than 4,900 square feet. The amount of
the Special Tax for facilities remains constant for the
life of the CFD until the bonds are retired. The Special
tax represents an average of .670 of the total tax on the
property with a maximum of 1.80 of initial value. The
affordable units included in the project will be exempt
from the special tax.
Both Exhibits A and B can also be found in the Community
Facilities District Report as prepared by MuniFinancial
which is a included as a separately bound part of your
agenda package. Attachment 7, attached to this report,
is a copy of the Joint Community Facilities Agreement
(the "JCFA ") in and between the City of Moorpark and the
Moorpark Unified School District.
3. Resolution No. 2005- 1 "A Resolution Deeming it
Necessary to Incur Bonded Indebtedness in Community
Facilities District No. 2004 -1 (Moorpark Highlands)."
(Resolution Determining Necessity)
This Resolution makes the determination to issue bonds to
be financed with a portion of the special tax. Depending
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Honorable City Council
September 21, 2005
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upon market conditions at issuance, the duration of the
bond financing will be 30 to 35 years. The maximum
aggregate principal amount of bonds that can be issued is
set at $43,750,000. In addition, the Resolution calls
for the landowner to vote on the issuance of the bonds.
4. Resolution No. 2005- "A Resolution Calling for a
Special Election in Community Facilities District No.
2004 -1 (Moorpark Highlands)." (Resolution Calling Special
Election)
This Resolution calls for a special election to be held tonight
(September 21). All qualified voters have signed waivers allowing
for a shortening of any requirements for notices, analysis and /or
arguments in connection with the election.
The Clerk then is asked for the result of the vote, and presumably
announces that all votes cast have been in favor of the matters
voted upon.
1. Adoption of Resolution No. 2005- "A Resolution
Declaring Election Results of Community Facilities
District No. 2004 -1 (Moorpark Highlands)." (Resolution
Declaring Election Results)
This resolution approves the Canvass of the vote after
the results are announced by the City Clerk. In
addition, this Resolution also directs the City Clerk to
file a Notice of Special Tax Lien, against those lands
within the CFD.
2. Introduction of Ordinance No. , "An Ordinance of the
City Council of the City of Moorpark Levying a Special
Tax within Community Facilities District No. 2004 -1
(Moorpark Highlands)."
This is the official levy of the special tax within the
CFD and final action by the City Council in the formation
process. The ongoing process of determining the annual
special taxes and the processing of tax revenues will be
accomplished by City staff through its CFD administrator.
All costs associated with the ongoing administration of
the CFD will be paid for by the CFD from the levy of the
Special Tax. The ordinance also authorizes an annual tax
levy for each year thereafter.
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STAFF RECOMMENDATION (ROLL CALL VOTE)
Approval of Resolutions and Agreements are subject to final
language approval by the City Attorney and Bond Counsel:
1) Open the continued Public Hearing, accept testimony, and close
the public hearing;
2) Adopt Resolution No. 2005- (Resolution Approving a Funding,
Constructing, and Acquisition Agreement);
3) Resolution No. 2005- (Resolution of Formation of Community
Facilities District and to Levy a Special Tax);
4) Adopt Resolution No. 2005- (Resolution Determining
Necessity to Incur Bonded Indebtedness);
5) Adopt Resolution No. 2005- (Resolution Calling for a
Special Election);
6) Adopt Resolution No. 2005- (Resolution Declaring Election
Results);
7) Introduce Ordinance No. for first reading and schedule
second reading and adoption for October 19, 2005.
Attachments:
1. Resolution No. 2005- 1 Approving a Funding,
Construction, and Acquisition Agreement
2. Resolution
Facilities
3. Resolution
bonded ind
4. Resolution
No. 2005- 1 Formation of Community
District and to Levy a Special Tax
No. 2005- Deeming it necessary to incur
ebtedness
No. 2005- , Calling special election
5. Resolution No. 2005- , Declaring election results
6. Ordinance No. Levying a special tax within
Community Facilities District No. 2004 -1
Honorable City Council
September 21, 2005
Page 6
7. Joint Community Facilities Agreement
8. MuniFinancial's Community Facilities District Report
(separately bound report)
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RESOLUTION NO. 2005-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
MOORPARK, CALIFORNIA, APPROVING FUNDING,
CONSTRUCTION, AND ACQUISITION AGREEMENT IN
CONNECTION WITH COMMUNITY FACILITIES DISTRICT NO.
2004 -1 (MOORPARK HIGHLANDS)
WHEREAS, the Council is conducting proceedings to form a
community facilities district as described in Resolution No.
2004 -2239 with respect to Community Facilities District No. 2004-
1 (Moorpark Highlands) (the `CFD ") of the City pursuant to the
Mello -Roos Community Facilities Act of 1982, as amended, Chapter
2.5 of Part 1 of Division 2 of Title 5, commencing with Section
53311, of the California Government Code (the "Act "); and
WHEREAS, the facilities to
proceedings are to be set forth
forming the CFD; and
be provided as stated in the
in an exhibit to the resolution
WHEREAS, subsequent to formation of the CFD pursuant to the
Act, the City desires to acquire the facilities in accordance
with the provisions of the Act and to enter into an agreement for
such purpose.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK DOES
HEREBY RESOLVE AS FOLLOWS:
SECTION 1. As a part of the proceedings for the CFD,
this City has caused to be prepared a Funding and Acquisition
Agreement (the "Agreement ") by and between the City of Moorpark
and Pardee Homes, the form of which is on file with the City
Clerk. The purpose of the Agreement is to provide, in connection
with the establishment of the CFD, for the acquisition of certain
facilities and payment of certain incidental expenses relating
thereto, all of which will benefit the property in the CFD, in
connection with the issuance and sale of the bonds for the CFD
financing, including incidental expenses, and to provide the
terms of any reimbursement to owners of land within the CFD.
SECTION 2. The City Council hereby approves the
Agreement in the form presented to the City Council at this
meeting. The Mayor, the City Manager, the Assistant City
Manager, the City Attorney, or such other person or persons as
any one of them may designate (collectively, the "Authorized
Attachment 1
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Resolution No. 2005 -
Page 2
Officers "), are each hereby authorized and directed to execute
the Agreement and the City Clerk is hereby authorized to attest
its execution, for and in the name and on behalf of the City and
the CFD, in such form, together with any additions thereto or
changes therein deemed necessary or advisable by the Authorized
Officer, upon consultation with the City Attorney and Bond
Counsel for the CFD.
SECTION 3. Certification. The City Clerk shall certify
to the adoption of this resolution and cause a certified
resolution to be filed in the book of original resolutions.
PASSED AND ADOPTED this 21st day of September, 2005.
Patrick Hunter, Mayor
ATTEST:
Deborah S. Traffenstedt, City Clerk
Attachments: Exhibit "A" - Funding and Acquisition Agreement
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FUNDING AND ACQUISITION AGREEMENT
by and between the
CITY OF MOORPARK
and
PARDEE HOMES
Dated as of September 7, 2005
Relating to:
City of Moorpark
Community Facilities District No. 2004 -1
(Moorpark Highlands)
EXHIBIT A
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section1.01. Definitions .............................................................................................................. ..............................1
ARTICLE II
RECITALS
Section2.01. The CFD ................................................................................................................ ............................... 4
Section2.02. The Development ................................................................................................... ..............................4
Section2.03. The Facilities ......................................................................................................... ............................... 4
Section2.04. The Financing ........................................................................................................ ..............................4
Section2.05. The Bonds .............................................................................................................. ..............................4
Section 2.06. No Advantage to City Construction .................................................................... ..............................4
Section2.07. Agreements ............................................................................................................ ..............................4
ARTICLE III
FUNDING
Section3.01. City Proceedings .................................................................................................... ..............................4
Section3.02. Special Taxes ........................................................................................................ ............................... 5
Section3.03. Bonds ..................................................................................................................... ............................... 5
Section3.04. Bond Proceeds ...................................................................................................... ............................... 5
ARTICLE IV
CONSTRUCTION OF FACILITIES
Section4.01. Plans ...................................................................................................................... ............................... 6
Section 4.02. Duty of Developer to Construct .......................................................................... ............................... 6
Section 4.03. Relationship to Public Works; Bidding Requirements ..................................... ............................... 6
Section 4.04. Independent Contractor ...................................................................................... ............................... 8
Section 4.05. Performance and Payment Bonds ....................................................................... ............................... 8
Section 4.06. Contracts and Change Orders ............................................................................ ............................... 8
ARTICLE V
ACQUISITION AND PAYMENT
Section5.01. Inspection ............................................................................................................... ..............................8
Section 5.02. Agreement to Sell and Purchase City Facilities .................................................. ..............................8
Section5.03. Payment Requests ................................................................................................. ..............................9
Section 5.04. Processing Payment Requests ............................................................................. ............................... 9
Section5.05. Payment ................................................................................................................. ..............................9
Section 5.06. Restrictions on Payments .................................................................................... .............................10
Section 5.07. Defective or Nonconforming Work .................................................................... .............................11
Section 5.08. Modification or Designation of Discrete Components ...................................... .............................12
ARTICLE VI
OWNERSHIP AND TRANSFER OF CITY FACILITIES
Section 6.01. City Facilities to be Owned by the City — Conveyance of Land and Easements to City ..............12
Section 6.02. City Facilities to be Owned by the City — Title Evidence ................................. .............................12
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Section 6.03. City Facilities Constructed on Private Lands .................................................... .............................12
Section 6.04. City Facilities Constructed on City Land ........................................................ ............................... 13
Section 6.05. Maintenance and Warranties ............................................................................. .............................13
ARTICLE VII
INSURANCE; RESPONSIBILITY FOR DAMAGE
Section 7.01. Insurance Requirements .................................................................................... ............................... 13
Section 7.02. Responsibility for Damage .................................................................................. .............................13
ARTICLE VIII
CITY FEES
Section8.01. Funding of City Fees ............................................................................................ .............................14
ARTICLE IX
MISCELLANEOUS
Section 9.01. Limited Liability of City .................................................................................... ...............................
14
Section9.02. Force Majeure ...................................................................................................... .............................15
Section9.03. Excess Costs .......................................................................................................... .............................15
Section9.04. Audit ...................................................................................................................... .............................15
Section9.05. Attorney's Fees ..................................................................................................... .............................15
Section9.06. Notices ................................................................................................................... .............................15
Section9.07. Severability ........................................................................................................... .............................16
Section 9.08. Successors and Assigns ........................................................................................ .............................16
Section10.08. Other Agreements .............................................................................................. .............................16
Section9.10. Waiver ................................................................................................................... .............................16
Section9.11. Merger .................................................................................................................. .............................16
Section9.12. Parties in Interest ................................................................................................. .............................16
Section9.13. Amendment ........................................................................................................... .............................16
Section9.14. Counterparts ........................................................................................................ .............................16
Section9.16. Governing Law ..................................................................................................... .............................17
EXHIBIT A DESCRIPTION OF FACILITIES
EXHIBIT B DISCRETE COMPONENTS OF FACILITIES
EXHIBIT C -1 FORM OF PAYMENT REQUEST (City Facilities)
EXHIBIT C -2 FORM OF PAYMENT REQUEST (City Fees)
EXHIBIT D FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
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THIS FUNDING AND ACQUISITION AGREEMENT (the "Acquisition Agreement "), dated as
of September 7, 2005, is by and between the City of Moorpark a general law city organized and existing
under the laws of the State of California (the "City"), for and on behalf of the City's Community
Facilities District No. 2004 -1 (Moorpark Highlands) (the "CFD "), and Pardee Homes, a California
corporation (the "Developer ").
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. The following terms shall have the meanings ascribed to them in this
Section 1.01 for purposes of this Acquisition Agreement.
"Acceptable Title" means title to land or interest therein, in form acceptable to the City Engineer,
which title or interest is free and clear of all liens, taxes, assessments, leases, easements and
encumbrances, whether or not recorded, but subject to any exceptions determined by the City Engineer as
not interfering with the actual or intended use of the land or interest therein. Notwithstanding the
foregoing, an irrevocable offer of dedication may constitute land with an "Acceptable Title" if. (i) such
offer is necessary to satisfy a condition to a tentative or final parcel map, (ii) such offer is in a form
acceptable to the City Engineer, (iii) the City Engineer has no reason to believe that such offer of
dedication will not be accepted by the applicable public agency, and (iv) the Developer commits in
writing not to allow any liens to be imposed on such property prior to its formal acceptance by the
applicable public agency.
"Acceptance Date" means the date the City Council of the City (or other public entity which is to
own a Facility) takes final action to accept dedication of or transfer of title to a Facility.
"Acquisition Agreement" means this Funding and Acquisition Agreement, together with any
Supplement hereto.
"Act" means the Mello -Roos Community Facilities Act of 1982, Sections 53311 et seq. of the
California Government Code, as amended.
"Actual Cost" means the substantiated cost of a Facility or a Discrete Component, which costs
may include: (i) the costs incurred by the Developer for the construction of such Facility or Discrete
Component, (ii) the reasonable costs incurred by the Developer in preparing the Plans for such Facility or
Discrete Component and the related costs of design, engineering and environmental evaluations of the
Facility or Discrete Component, (iii) the fees paid to governmental agencies for obtaining permits,
licenses or other governmental approvals for such Facility or Discrete Component, (iv) professional costs
incurred by the Developer associated with such Facility or Discrete Component, such as engineering,
legal, accounting, inspection, construction staking, materials testing and similar professional services; (v)
costs directly related to the construction and /or acquisition of a Facility or Discrete Component, such as
costs of payment, performance and /or maintenance bonds, and insurance costs (including costs of any
title insurance required hereunder), and (vi) the cost or fair market value of any real property or interest
therein ( "Real Estate ") that (a) is required for the construction, operation or maintenance of a Facility,
and (b) is required to be conveyed with such Facility. Actual Cost may also include an amount not in
excess of ten percent (10 %) of the cost described in clause (i) of the preceding sentence in respect of any
construction, project management or other similar fee payable to the Developer or any party related
thereto.
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"Affiliate" means any entity with respect to which fifty percent (50 %) or more of the ownership
or voting power is held individually or collectively by any of the Developer and any other entity owned,
controlled or under common ownership or control by or with, as applicable, the Developer, and includes
the managing member of any entity that is a limited liability company, and includes all general partners
of any entity which is a partnership. Control shall mean ownership of fifty percent (50 %) or more of the
voting power of or ownership interest in the respective entity.
"Bonds" means the bonds or other debt (as defined in the Act) issued by the City for the CFD, or
otherwise secured by the levy of special taxes within the CFD.
"CFD" means the City of Moorpark Community Facilities District No. 2004 -1 (Moorpark
Highlands), created by the City Council of the City under the Act.
"City" means the City of Moorpark, California.
"City Engineer" means the City Engineer of the City, or his written designee acting as such under
this Acquisition Agreement.
"City Facilities" means the public facilities described in Exhibit A hereto to be owned, operated
or maintained by the City.
"City Fees" means the City fees described in Exhibit A authorized to be financed by the CFD.
"Conditions of Approval" means the conditions of approvals and mitigation measures imposed in
connection with the granting of the land use entitlements for the development of land in the CFD, and
any subdivision improvement, development or other agreement with the City relating to the development
of the land in the CFD or the installation of the City Facilities.
"Developer" means Pardee Homes, a California corporation, and its successors and assigns to the
extent permitted under Section 10.07 hereof.
"Discrete Component" means a functional segment or component of a City Facility that the City
Engineer has agreed can be separately identified, inspected and completed, and be the subject of a
Payment Request hereunder. The Discrete Components of each City Facility, if any, are described in
Exhibit B hereto.
"Facilities" means, collectively, City Facilities, City Fees and School Facilities.
"Fiscal Agent" means a financial institution, in its capacity as fiscal agent under the Fiscal Agent
Agreement, or any successor thereto acting as fiscal agent under the Fiscal Agent Agreement.
"Fiscal Agent Agreement" means an agreement by that name to be entered into by the City and
the Fiscal Agent prior to the issuance of any Bonds, which will, provide for, among other matters, the
issuance of the Bonds and the establishment of the Improvement Fund, as it may be amended from time
to time.
"Flood Control Improvements" means any studies, analysis, engineering, design and construction
of watershed protection and surface and subsurface flood control and drainage improvements including
but not limited to detention basins and structures and activities for compliance with National Pollution
Discharge Elimination Systems (NPDES) Regulations.
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"Goals and Policies" means the City of Moorpark Land Secured Financing Policy in the form
adopted by the City Council of the City on July 21, 2004.
"Improvement Fund" means a fund by that name to be established by the Fiscal Agent
Agreement.
"Payment Request" means a document, substantially in the form of Exhibit C -1 or Exhibit C -2
hereto, to be used by the Developer in requesting payment of a Purchase Price for a City Facility or a
disbursement in satisfaction of City Fees, respectively, and a document in the form of Exhibits A -1 and
A -2 to the School JCFA, to be used by the Developer to request payments for School Facilities.
"Plans" means the plans, specifications, schedules and related construction contracts for the City
Facilities and /or any Discrete Components thereof approved pursuant to the applicable standards of the
City. As of the date of this Acquisition Agreement, the City standards for construction incorporate those
set forth in the Green Book, Standard Specifications for Public Works Construction (SSPWC), by Public
Works Standards, Inc., as modified by applicable City Special Provisions.
"Purchase Price" means the amount paid by the City for a City Facility and /or any Discrete
Components thereof determined in accordance with Article V hereof, being an amount equal to the
Actual Cost of such City Facility or Discrete Component.
"RMA" means the rate and method of apportionment of special taxes pursuant to which the
special taxes of the CFD are authorized to be levied.
"Risk Manager" shall mean the person acting in the capacity of Risk Manager for the City.
"School District" means the Moorpark Unified School District.
"School Facilities" means the school facilities generally described in Exhibit A hereto that are
eligible to be financed by the CFD.
"School JCFA" means the Joint Community Facilities Agreement entered into by and among
City, School District and Developer with respect to the CFD prior to the formation of the CFD, as it may
be amended.
"Special Taxes" means the special taxes of the CFD levied as the "Assigned Special Tax for
Facilities" pursuant to the RMA.
"State" means the State of California.
"Supplement" means a written document amending, supplementing or otherwise modifying this
Acquisition Agreement and any exhibit hereto, including any amendments to the list of Facilities and
City Fees in Exhibit A, any amendments to the list of Facilities and their Discrete Components in Exhibit
B, and /or the addition to Exhibit A and Exhibit B of additional Facilities (and Discrete Components) to
be financed with the proceeds of the Bonds deposited in the Improvement Fund.
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ARTICLE II
RECITALS
Section 2.01. The CFD. The City Council of the City has established the CFD under the Act
for the financing of the Facilities.
Section 2.02. The Development. The Developer is developing land located within the CFD.
Section 2.03. The Facilities. The City Facilities are within or in the general vicinity of the
CFD, and the City and the Developer will benefit from a coordinated plan of design, engineering and
construction of the Facilities and the development of the land owned by the Developer that is located
within the CFD. The Developer acknowledges that the inclusion of City Facilities in Exhibit A hereto in
no way, in itself, implies that the City has in any way engaged the Developer to construct the City
Facilities, except as specifically provided in this Acquisition Agreement. The City Facilities which are
the subject of acquisition from the Developer under this Acquisition Agreement are only the City
Facilities listed in Exhibit A hereto, as such Exhibit may be amended and/or supplemented by any
Supplement.
Section 2.04. The Financing. The Developer and the City wish to finance with Special Taxes
of the CFD and the proceeds of the Bonds to be deposited in the Improvement Fund (i) the acquisition of
the City Facilities by the City and the payment therefor by entering into this Acquisition Agreement for
the acquisition of the City Facilities and payment for Discrete Components thereof as described in
Exhibit B hereto (as it may be amended and supplemented), (ii) City Fees and (iii) School Facilities.
Section 2.05. The Bonds. The City intends to proceed with the issuance of the Bonds under the
Act and the Fiscal Agent Agreement, the proceeds of which Bonds shall be used, in part, to finance the
Facilities. The execution by the City of this Acquisition Agreement in no way obligates the City to issue
any Bonds other than in accordance with this Agreement and the Goals and Policies, or the City to
acquire any Facilities financed with proceeds of any Bonds issued, except the City Facilities listed in
Exhibit A hereto which are to be acquired subject to the terms and conditions set forth in this Agreement.
Section 2.06. No Advantage to City Construction. The City, by its approval of this
Acquisition Agreement, has determined that it will obtain no advantage from undertaking the
construction by the City directly of the City Facilities, and that the provisions of this Acquisition
Agreement require that the City Facilities be constructed by the Developer as if they had been
constructed under the direction and supervision of the City. The Developer hereby represents that it has
experience in the supervision of the construction of public facilities of the character of the City Facilities.
Section 2.07. Agreements. In consideration of the mutual promises and covenants set forth
herein, and for other valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the City and the Developer agree that the foregoing recitals, as applicable to each, are true
and correct and further make the agreements set forth herein.
ARTICLE III
FUNDING
Section 3.01. City Proceedings. The City shall conduct all necessary proceedings under the
Act for the issuance, sale and delivery of the Bonds; provided, however, that nothing herein shall be
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construed as requiring the City to issue the Bonds or any portion thereof except in accordance with this
Acquisition Agreement and the Goals and Policies. Upon the written request of the Developer, the
Developer and the City staff shall meet regarding the amount, timing and other material aspects of the
Bonds.
Section 3.02. Special Taxes. The City agrees to levy annual Special Taxes of the CFD at 100%
of the Assigned Special Tax Rates for Facilities on all parcels classified as "Developed Property"
pursuant to and as such term is defined in the RMA prior to the issuance of Bonds in order to pay directly
for Facilities. Such Special Taxes collected shall be held in an account held and administered by the City
and disbursed to pay the Purchase Price of City Facilities and /or Discrete Components to pay City Fees
or to fund School Facilities pursuant to Payment Requests submitted by the Developer.
Section 3.03. Bonds. The City expects, subject to the provisions of Section 3.01 hereof, to
proceed with the issuance and delivery of the Bonds for the CFD. The City shall not be obligated to pay
the Purchase Price of the City Facilities or any Discrete Components thereof, to pay City Fees or to fund
School Facilities except from amounts deposited in the Improvement Fund and the account described in
Section 3.02. The City makes no warranty, express or implied, that any proceeds of the Bonds deposited
and held in the Improvement Fund, and any investment earnings thereon deposited to the Improvement
Fund, will be sufficient for payment of the Purchase Price of all of the City Facilities sufficient to fund
all City Fees or sufficient to fund the School Facilities.
The City agrees that, in determining the principal amount of the Bonds to be issued, it will take
into account a debt service coverage ratio of 110% (based upon the aggregate Special Taxes authorized
to be levied in the CFD upon buildout of the CFD), and will require a minimum "value -to- lien" ratio
determined in a manner consistent with the Goals and Policies. The City agrees to consider the use of an
escrow structure, at the Developer's request, in order to comply with the minimum value -to -lien ratio
requirement.
Section 3.04. Bond Proceeds. The proceeds of the Bonds will be deposited, held, invested,
reinvested and disbursed as provided in this Acquisition Agreement and the Fiscal Agent Agreement.
The proceeds of the Bonds available after funding costs of issuance, a reserve fund for the Bonds and
capitalized interest for a period of twenty-four (24) months (or a lesser period requested by the
Developer) shall be deposited in the Improvement Fund. Moneys in the Improvement Fund shall be
withdrawn therefrom in accordance with the provisions of this Acquisition Agreement for payment of all
or a portion of the Purchase Price of the City Facilities and Discrete Components thereof and to fund City
Fees. Moneys in the Improvement Fund shall be withdrawn therefrom to fund School Facilities in
accordance with the provisions of the School JCFA.
The Fiscal Agent Agreement shall include provisions which periodically allocate available
investment earnings on funds held thereunder, including on amounts in the reserve fund (to the extent its
balance in the reserve fund exceeds the reserve fund requirement) and the Improvement Fund (but not
including investment earnings on any capitalized interest account that is "net" funded or on any escrow
fund utilized to achieve a 3:1 value -to -lien ratio), to the Improvement Fund until all Facilities have been
fully funded or Developer certifies that amounts in the Improvement Fund are sufficient to all Payment
Requests for facilities Developer expects to submit and thereafter such earnings shall be allocated to the
bond fund to pay debt service on the Bonds and reduce the annual levy of Special Taxes. The City shall
have no responsibility whatsoever to the Developer with respect to any investment of funds made by the
Fiscal Agent under the Fiscal Agent Agreement, including any loss of all or a portion of the principal
invested or any penalty for liquidation of an investment. Any such loss may diminish the amounts
available in the Improvement Fund to fund Facilities.
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The Developer acknowledges that any lack of availability of amounts in the Improvement Fund
to pay the Purchase Price of City Facilities or any Discrete Components thereof and to fund School
Facilities shall in no way diminish any obligation of the Developer with respect to the construction of or
contributions for public facilities required by the Conditions of Approval.
ARTICLE IV
CONSTRUCTION OF FACILITIES
Section 4.01. Plans. To the extent that it has not already done so, the Developer shall cause
Plans to be prepared for the City Facilities in accordance with the Conditions of Approval and
Developer's timing of development of the property within the CFD. The Developer shall obtain the
written approval of the Plans in accordance with applicable ordinances and regulations of the City.
Copies of all Plans shall be provided by the Developer to the City Engineer upon request therefor, and, in
any event, as built drawings and a written assignment of the Plans for any City Facility shall be provided
to the City prior to its acceptance of the City Facility.
Section 4.02. Duty of Developer to Construct. All City Facilities to be acquired hereunder
specified in Exhibit A hereto, as amended from time to time, shall be constructed by or at the direction of
the Developer in accordance with the approved Plans and the Conditions of Approval. The Developer
shall perform all of its obligations hereunder and shall conduct all operations with respect to the
construction of City Facilities in a good, workmanlike and commercially reasonable manner, with the
standard of diligence and care normally employed by duly qualified persons utilizing their best efforts in
the performance of comparable work and in accordance with generally accepted practices appropriate to
the activities undertaken. The Developer shall employ at all times adequate staff or consultants with the
requisite experience necessary to administer and coordinate all work related to the design, engineering,
acquisition, construction and installation of the City Facilities to be acquired by the City from the
Developer hereunder.
The Developer shall be obligated: (i) to construct and cause conveyance to the City of all City
Facilities and Discrete Components thereof listed in Exhibit B hereto in accordance with the Conditions
of Approval and the Developer's timing of development of the property within the CFD, and (ii) to use
its own funds to pay all costs thereof in excess of the Purchase Prices thereof and available amounts in
the Improvement Fund (or in the account described in Section 3.02) to be paid therefor hereunder, except
as may be otherwise expressly provided in the Conditions of Approval.
Section 4.03. Relationship to Public Works; Bidding Requirements. The following shall
apply to all contracts applicable to the City Facilities and any Discrete Components thereof acquired with
funds withdrawn from the Improvement Fund:
A. General. This Acquisition Agreement is for the acquisition by the City of the
City Facilities and payment for Discrete Components thereof listed in Exhibit B hereto from
moneys in the Improvement Fund and is not intended to be a public works contract. The City
and the Developer agree that the City Facilities are of local, and not state -wide concern, and that
the provisions of the California Public Contract Code shall not apply to the construction of the
City Facilities. The City and the Developer agree that the Developer shall award all contracts for
the construction of the City Facilities and the Discrete Components thereof listed in Exhibit B
hereto and that this Acquisition Agreement is necessary to assure the timely and satisfactory
completion of the City Facilities and that compliance with the Public Contract Code with respect
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to the Facilities would work an incongruity and would not produce an advantage to the City or
the CFD.
B. Bidding Procedures. Notwithstanding the foregoing, the Developer shall award
all contracts for construction of the City Facilities and any Discrete Components thereof, and
materials related thereto, by means of a bid process consistent with this Section 4.03 B. or
otherwise acceptable to the City Engineer, in each case consistent with applicable City
regulations.
The Developer shall prepare bid packages, including engineering reports and estimates,
for each of the City Facilities (or any specific Discrete Components thereof to be separately bid).
If the Developer would like the option to proceed under the provisions of Section 4.03 C. below,
the bid documents shall expressly disclose the rights of the Developer to elect to perform or have
its agent perform the work with a specific reference to Section 53329.5 of the Act. Bid packages
shall be provided to at least three qualified bidders, unless Developer and the City Engineer
reasonably determine that three such bidders are not available. A list of the proposed bidders and
copies of each bid package shall be provided to the City Engineer prior to their submission to the
bidders.
The Developer shall, subject to the provisions of Section 4.03 C. below, award the
applicable contract to the lowest responsible bidder. Upon written request of the City Engineer,
the Developer shall provide an analysis of bids for construction and materials for the City
Facilities or applicable Discrete Components, indicating how the winning bid was determined.
C. Developer's Election to Perform Work. Notwithstanding the provisions of
Section 4.03 B. above, and in accordance with Section 53329.5 of the Act, if at the time bids are
received for any particular City Facility or Discrete Component the Developer owns three -
fourths of the area of lands in the CFD taxed or liable to be taxed for purposes of the CFD, the
Developer or a designated agent thereof (who shall provide the City Engineer with a written
declaration under penalty of perjury in form acceptable to the City Engineer to the effect that the
Developer so owns such land and, if applicable, that such other entity is such an agent), the
Developer or its designated agent may, within 10 days after the publication of the notice of the
bid results in such paper as the City Engineer shall specify, elect to perform the work and enter
into a written contract to do the whole work at prices not exceeding the prices specified in the bid
of the lowest responsible bidder, and all work done under the contract shall be subject to all
provisions of this Acquisition Agreement other than the requirement that the contract work be
awarded to and performed by the lowest responsible bidder. The Developer shall advise the City
Engineer of any election under the preceding sentence, and shall promptly provide written notice
to the lowest responsible bidder of its election to perform the work, and that the services of such
winning bidder will no longer be required. The Developer (and its agents) may only avail itself
of the foregoing provisions of this Section 4.03 C. if the bid documents for the respective Facility
or Discrete Component expressly disclosed its right to do so, as required by the second paragraph
of Section 4.03 B. above.
D. Periodic Meetings. From time to time at the request of the City Engineer,
representatives of the Developer shall meet and confer with City staff, consultants and
contractors regarding matters arising hereunder with respect to the City Facilities, Discrete
Components and the progress in constructing and acquiring the same, and as to any other matter
related to the City Facilities or this Acquisition Agreement.
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E. Prevailing Wages. The Developer shall require with respect to any contracts or
subcontracts for the construction of City Facilities or Discrete Components to be acquired from
Developer hereunder that the contractor or subcontractor assure complete compliance with any
applicable law or regulation for the payment of prevailing wages.
Section 4.04. Independent Contractor. In performing this Acquisition Agreement, the
Developer is an independent contractor and not the agent or employee of the City or the CFD. None of
the City or the CFD shall be responsible for making any payments directly or otherwise to any contractor,
subcontractor, agent, consultant, employee or supplier of the Developer except as specified in a Payment
Request submitted by Developer.
Section 4.05. Performance and Payment Bonds. The Developer agrees to comply with all
applicable performance and payment bonding requirements of the City with respect to the construction of
the City Facilities. Performance and payment bonds shall not be required of the Developer to the extent
moneys are available and reserved in the Improvement Fund to pay the Purchase Price of a City Facility;
provided that all contractors and /or subcontractors employed by the Developer in connection with the
construction of City Facilities shall provide a labor and materials and performance bonds which name the
City and the City as additional insureds.
Section 4.06. Contracts and Change Orders. The Developer shall be responsible for entering
into all contracts and any supplemental agreements (commonly referred to as "change orders ") required
for the construction of the City Facilities listed in Exhibit A hereto, as amended from time to time, and
all such contracts and supplemental agreements shall be submitted to the City Engineer. The increased
cost associated with any change order may be payable as part of the Purchase Price of the related City
Facility or Discrete Component as provided in Section 5.06A. hereof.
ARTICLE V
ACQUISITION AND PAYMENT
Section 5.01. Inspection. No payment hereunder shall be made by the City to the Developer for
a City Facility or Discrete Component thereof until the City Facility or Discrete Component thereof has
been inspected and found to be completed in accordance with the approved Plans by the City. The City
shall cause the City to make periodic site inspections of the City Facilities to be acquired hereunder;
provided that in no event shall the City incur any liability for any delay in the inspection of any City
Facilities or Discrete Components. For City Facilities to be acquired by public utilities, the Developer
shall be responsible for obtaining such inspections and providing written evidence thereof to the City
Engineer. The Developer agrees to pay all inspection, permit and other similar fees of the City
applicable to construction of the City Facilities, subject to reimbursement therefor as an Actual Cost of
the related City Facility.
Section 5.02. Agreement to Sell and Purchase City Facilities. The Developer hereby agrees
to sell the City Facilities listed in Exhibit A hereto to the City, and the City hereby agrees to use amounts
in the Improvement Fund to pay the Purchase Prices thereof to the Developer, subject to the terms and
conditions hereof. The City shall not be obligated to finance the purchase of any City Facility until the
City Facility is completed and the Acceptance Date for such City Facility has occurred; provided that the
City has agreed hereunder to make payments to the Developer for certain Discrete Components of City
Facilities expressly shown in Exhibit B hereto, as it may be supplemented by any Supplement prior to the
applicable Acceptance Date. The Developer acknowledges that the Discrete Components have been
identified for payment purposes only, and that the City shall not accept a City Facility of which a
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Discrete Component is a part until the entire City Facility has been completed. The City acknowledges
that the Discrete Components do not have to be accepted by the City as a condition precedent to the
payment of the Purchase Price therefor, but any such payment shall not be made until the Discrete
Component has been completed in accordance with the Plans therefor, as determined by the City
Engineer. In any event, the City shall not be obligated to pay the Purchase Price for any City Facility or
Discrete Component except from the moneys in the Improvement Fund or the account described in
Section 3.02.
Section 5.03. Payment Requests. In order to receive the Purchase Price for a completed City
Facility or Discrete Component, inspection thereof under Section 5.01 shall have been made and the
Developer shall deliver to the City Engineer: (i) a Payment Request in the form of Exhibit C -1 hereto for
such City Facility or Discrete Component, together with all attachments and exhibits required by Exhibit
C -1 and this Section 5.03 to be included therewith (including, but not limited to Attachments 1 and 2 to
Exhibit C), and (ii) if payment is requested for a completed City Facility, (a) if the property on which the
City Facility is located is not owned by the City at the time of the request, a copy of the recorded
documents conveying to the City Acceptable Title to the real property on, in or over which such City
Facility is located, as described in Section 6.01 hereof, (b) a copy of the recorded notice of completion of
such City Facility (if applicable), (c) to the extent paid for with the proceeds of the Bonds, an assignment
to the CFD of any reimbursements that may be payable with respect to the City Facility, such as public or
private utility reimbursements, and (d) an assignment of the warranties and guaranties for such City
Facility, as described in Section 6.05 hereof, in a form acceptable to the City.
Section 5.04. Processing Payment Requests. Upon receipt of a Payment Request (and all
accompanying documentation), the City Engineer shall conduct a review in order to confirm that such
request is complete, that such Discrete Component or City Facility identified therein was constructed in
accordance with the Plans therefor, and to verify and approve the Actual Cost of such Discrete
Component or City Facility specified in such Payment Request. The City Engineer shall also conduct
such review as is required in his discretion to confirm the matters certified in the Payment Request. The
Developer agrees to cooperate with the City Engineer in conducting each such review and to provide the
City Engineer with such additional information and documentation as is reasonably necessary for the
City Engineer to conclude each such review. For any City Facilities to be acquired by a public utility, the
Developer shall provide evidence acceptable to the City Engineer that such City Facilities are acceptable
to such utility. Within ten (10) business days of receipt of any Payment Request, the City Engineer
expects to review the request for completeness and notify the Developer whether such Payment Request
is complete, and, if not, what additional documentation must be provided. If such Payment Request is
complete, the City Engineer expects to provide a written approval or denial (specifying the reason for any
denial) of the request within 30 days of its submittal. If a Payment Request seeking reimbursement for
more than one City Facility or Discrete Component is denied, the City Engineer shall state whether the
Payment Request is nevertheless approved and complete for any one or more City Facilities or Discrete
Components and any such City Facilities or Discrete Components shall be processed for payment under
Section 5.05 notwithstanding such partial denial.
Section 5.05. Payment. Upon approval of the Payment Request by the City Engineer, the City
Engineer shall sign the Payment Request and forward the same to the City's Director of Finance. Upon
receipt of the reviewed and fully signed Payment Request, the City's Director of Finance shall, within the
then current City financial accounting payment cycle but in any event within thirty (30) days of receipt of
the approved Payment Request, cause the same to be paid by the Fiscal Agent under the applicable
provisions of the Fiscal Agent Agreement, to the extent of funds then on deposit in the Improvement
Fund (or otherwise will pay such amounts from the account described in Section 3.02). If an approved
Payment Request is not paid in full due to an insufficiency of funds in the Improvement Fund and the
account described in Section 3.02, the unpaid amount shall be paid promptly following the deposit into
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the Improvement Fund of proceeds of any investment earnings or other amounts transferred to the
Improvement Fund under the terms of the Fiscal Agent Agreement.
The Purchase Price paid hereunder for any City Facility or Discrete Component shall constitute
payment in full for such City Facility or Discrete Component, including, without limitation, payment for
all labor, materials, equipment, tools and services used or incorporated in the work, supervision,
administration, overhead, expenses and any and all other things required, furnished or incurred for
completion of such City Facility or Discrete Component, as specified in the Plans.
Section 5.06. Restrictions on Payments. Notwithstanding any other provisions of this
Acquisition Agreement, the following restrictions shall apply to any payments made to the Developer
under Sections 5.02 and 5.05 hereof:
A. Amounts of Payrnents. Subject to the following paragraphs of this Section 5.06,
payments for each Discrete Component or City Facility will be made only in the amount of the
Purchase Price for the respective Discrete Component or City Facility. Nothing herein shall
require the City in any event (i) to pay more than the Actual Cost of a City Facility or Discrete
Component, or (ii) to make any payment beyond the available funds in the Improvement Fund
and in the account described in Section 3.02. The parties hereto acknowledge and agree that all
payments to the Developer for the Purchase Prices of City Facilities or Discrete Components are
intended to be reimbursements to the Developer for monies already expended or for immediate
payment by the Developer (or directly by the City) to third parties in respect of such City
Facilities and /or Discrete Components.
B. Joint or Third Party Payments. The City may make any payment jointly to the
Developer and any mortgagee or trust deed beneficiary, contractor or supplier of materials, as
their interests may appear, or solely to any such third party, if the Developer so requests the same
in writing or as the City otherwise determines such joint or third party payment is necessary to
obtain lien releases.
C. Withholding Payments. The City shall be entitled, but shall not be required, to
withhold any payment hereunder for a Discrete Component or a City Facility if the Developer or
any Affiliate is delinquent in the payment of ad valorem real property taxes, special assessments
or taxes, or Special Taxes levied in the CFD. In the event of any such delinquency, the City shall
only make payments hereunder directly to contractors or other third parties employed in
connection with the construction of the City Facilities or to any assignee of the Developer's
interests in this Acquisition Agreement (and not to the Developer or any Affiliate), until such
time as the Developer provides the City Engineer with evidence that all such delinquent taxes
and assessments have been paid.
The City shall be entitled to withhold any payment hereunder for a Discrete Component
that is the subject of a Payment Request until it is satisfied that any and all claims for labor and
materials have been paid by the Developer for the Discrete Component that is the subject of a
Payment Request, or conditional lien releases have been provided by the Developer for such
Discrete Component. The City, in its discretion, may waive this limitation upon the provision by
the Developer of sureties, undertakings, securities and /or bonds of the Developer or appropriate
contractors or subcontractors and deemed satisfactory by the City Engineer to assure payment of
such claims.
The City shall be entitled to withhold payment for any City Facility hereunder to be
owned by the City (or the final Discrete Component of any such City Facility) until: (i) the City
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Engineer determines that the City Facility is ready for its intended use, (ii) the Acceptance Date
for the City Facility has occurred and the requirements of Section 6.01, if applicable to such City
Facility, have been satisfied, and (iii) a Notice of Completion executed by the Developer, in a
form acceptable to the City Engineer, has been recorded for the City Facility and general lien
releases conditioned solely upon payment from the proceeds of the Bonds to be used to acquire
such City Facility (or final Discrete Component) have been submitted to the City Engineer for
the City Facility. The City hereby agrees that the Developer shall have the right to post or cause
the appropriate contractor or subcontractor to post a bond with the City to indemnify it for any
losses sustained by the City or the City because of any liens that may exist at the time of
acceptance of a City Facility, so long as such bond is drawn on an obligor and is otherwise in a
form acceptable to the City Engineer. If the City Engineer determines that a City Facility is not
ready for intended use under (i) above, the City Engineer shall so notify the Developer as soon as
reasonably practicable in writing specifying the reason(s) therefor.
Nothing in this Acquisition Agreement shall be deemed to prohibit the Developer from
contesting in good faith the validity or amount of any mechanics or materialmans lien nor limit
the remedies available to the Developer with respect thereto so long as such delay in
performance shall not subject the City Facilities or any Discrete Component thereof to
foreclosure, forfeiture or sale. In the event that any such lien is contested, the Developer shall
only be required to post or cause the delivery of a bond in an amount equal to twice the amount
in dispute with respect to any such contested lien, so long as such bond is drawn on an obligor
and is otherwise in a form acceptable to the City Engineer.
D. Retention. The City shall withhold in the City Facilities Account an amount equal to
ten percent (10 %) of the Purchase Price of each City Facility or Discrete Component to be paid
hereunder. Any such retention will be released to the Developer upon final completion and
acceptance of the related City Facility and the earlier of (i) expiration of a maintenance period
consistent with applicable City policy thereafter or (ii) upon receipt of a maintenance bond
acceptable to the City Engineer to remain in effect for such maintenance period.
Notwithstanding the foregoing, the Developer shall be entitled to payment of any such
retention upon the completion and acceptance of a City Facility or Discrete Component, if a
maintenance or warranty bond is posted in lieu thereof in accordance with Section 6.05 hereof.
Payment of any retention shall also be contingent upon the availability of monies in the
Improvement Fund therefor. No retention shall apply if the Developer proves to the Director of
Public Work's satisfaction that the Developer's contracts for the City Facilities (or Discrete
Components) provide for the same retention as herein provided, so that the Purchase Price paid
for the City Facility or Discrete Component is at all times net of the required retention.
E. Right -of -Way. Payments for any right -of -way or other real property interests relating
to the City Facilities described in Exhibit B hereto shall be based upon appraisals of the
respective land to be acquired in a form acceptable to the City Engineer, or upon such other basis
as the City Engineer shall determine is appropriate in the circumstances.
Section 5.07. Defective or Nonconforming Work. If any of the work done or materials
furnished for a City Facility or Discrete Component are found by the City Engineer to be defective or not
in accordance with the applicable Plans: (i) and such finding is made prior to payment for the Purchase
Price of such City Facility or Discrete Component hereunder, the City may withhold payment therefor
until such defect or nonconformance is corrected to the satisfaction of the City Engineer, or (ii) and such
finding is made after payment of the Purchase Price of such City Facility or Discrete Component, the
City and the Developer shall act in accordance with the City's standard specification for public works
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construction (which are set forth in the Green Book, Standard Specifications for Public Works
Construction (SSPWC), by Public Works Standards, Inc., as modified by applicable City Special
Provisions).
Section 5.08. Modification or Designation of Discrete Components. Upon written request of
the Developer, the City Engineer shall consider modification of the description of any City Facilities,
Discrete Components or City Fees and shall consider the addition of new City Facilities, Discrete
Components or City Fees not currently designated in Exhibit A or Exhibit B. Any such modification or
addition shall be subject to the written approval of the City Engineer.
ARTICLE VI
OWNERSHIP AND TRANSFER OF CITY FACILITIES
Section 6.01. City Facilities to be Owned by the City — Conveyance of Land and Easements
to City. Acceptable Title to all property on, in or over which each City Facility will be located, shall be
deeded over to the City by way of grant deed, quitclaim, irrevocable offer of dedication or dedication of
such property, or easement thereon, if such conveyance of interest is approved by the City as being a
sufficient interest therein to permit the City to properly own, operate and maintain such City Facility
located therein, thereon or thereover, and to permit the Developer to perform its obligations as set forth
in this Acquisition Agreement. The Developer agrees to assist the City in obtaining such documents as
are required to obtain Acceptable Title. Completion of the transfer of title to land shall be accomplished
prior to the payment of the Purchase Price for a City Facility (or the last Discrete Component thereof)
and shall be evidenced by recordation of the acceptance thereof by the City Council or the designee
thereof.
Section 6.02. City Facilities to be Owned by the City — Title Evidence. Upon the request of
the City, the Developer shall furnish to the City a preliminary title report for land with respect to City
Facilities to be acquired by the City and not previously dedicated or otherwise conveyed to the City, for
review and approval at least fifteen (15) calendar days prior to the transfer of Acceptable Title to a City
Facility to the City. The City Engineer shall approve the preliminary title report unless it reveals a matter
which, in the judgment of the City, could materially affect the City's use and enjoyment of any part of
the property or easement covered by the preliminary title report for the purpose for which the property or
easement is being conveyed. In the event the City does not approve the preliminary title report, the City
shall not be obligated to accept title to such City Facility and the City shall not be obligated to pay the
Purchase Price for such City Facility (or the last Discrete Component thereof) until the Developer has
cured such objections to title to the satisfaction of the City.
Section 6.03. City Facilities Constructed on Private Lands. If any City Facilities to be
acquired are located on privately -owned land, the owner thereof shall retain title to the land and the
completed City Facilities until acquisition of the City Facilities under Article V hereof. Pending the
completion of such transfer, the Developer shall not be entitled to receive any payment for any such City
Facility or the last Discrete Component thereof. The Developer shall, however, be entitled to receive
payment for Discrete Components (other than the last Discrete Component) upon making an irrevocable
offer of dedication of such land in form and substance acceptable to the City Engineer. Notwithstanding
the foregoing, upon written request of the City Engineer before payment for any Discrete Component of a
City Facility, the Developer shall convey or cause to be conveyed Acceptable Title thereto in the manner
described in Sections 6.01 and 6.02 hereof.
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Section 6.04. City Facilities Constructed on City Land. If the City Facilities to be acquired
are on land owned by the City, the City shall cause the City to grant to the Developer a license to enter
upon such land for purposes related to the construction (and maintenance pending acquisition) of the City
Facilities. The provisions for inspection and acceptance of such City Facilities otherwise provided herein
shall apply.
Section 6.05. Maintenance and Warranties. The Developer shall maintain each Discrete
Component in good and safe condition until the Acceptance Date of the City Facility of which such
Discrete Component is a part. Prior to the Acceptance Date, the Developer shall be responsible for
performing any required maintenance on any completed Discrete Component or City Facility. On or
before the Acceptance Date of the City Facility, the Developer shall assign to the City all of the
Developer's rights in any warranties, guarantees, maintenance obligations or other evidence of contingent
obligations of third persons with respect to such City Facility. The Developer shall maintain or cause to
be maintained each City Facility to be owned by the City (including the repair or replacement thereof) for
a period of one year from the Acceptance Date thereof, or, alternatively, shall provide a bond reasonably
acceptable in form and substance to the City Engineer for such period and for such purpose (specifically,
a one -year maintenance period for landscaping improvements, and for the posting of a warranty bond to
remain in effect for one year as to other City Facilities), to insure that defects, which appear within said
period will be repaired, replaced, or corrected by the Developer, at its own cost and expense, to the
satisfaction of the City Engineer. The Developer shall commence to repair, replace or correct any such
defects within thirty (30) days after written notice thereof by the City to the Developer, and shall
complete such repairs, replacement or correction as soon as practicable. After such one -year period, the
City shall be responsible for maintaining such City Facility. Any warranties, guarantees or other
evidences of contingent obligations of third persons with respect to the City Facilities to be acquired by
the City shall be delivered to the City Engineer as part of the transfer of title.
ARTICLE VII
INSURANCE; RESPONSIBILITY FOR DAMAGE
Section 7.01. Insurance Requirements. The Developer shall provide to the City Engineer
evidence of insurance as may be required by the Conditions of Approval.
Section 7.02. Responsibility for Damage. The Developer shall take and assume all
responsibility for the work performed as part of the City Facilities constructed pursuant to this
Acquisition Agreement. The Developer shall bear all losses and damages directly or indirectly resulting
to it, to the City, and its consultants, and its Councilmembers, officers, employees and agents, or to others
on account of the performance or character of the work, unforeseen difficulties, accidents of any other
causes whatsoever.
The Developer shall assume the defense of and indemnify and save harmless the City, the City,
and its consultants, its Councilmembers, officers, employees, and agents, from and against any and all
claims, losses, damage, expenses and liability of every kind, nature, and description, directly or indirectly
arising from the performance of the work with respect to the City Facilities and from any and all claims,
losses, damage, expenses, and liability, howsoever the same may be caused, resulting directly, or
indirectly from the nature of the work covered by this Acquisition Agreement to the fullest extent
permitted by law. In accordance with Civil Code section 2782, nothing in this Section 7.02 shall require
defense or indemnification for death, bodily injury, injury to property, or any other loss, damage or
expense arising from the sole negligence or willful misconduct of the City, and its consultants, and its
Councilmembers, officers, employees, agents or independent contractors who are directly responsible to
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the City, or for defects in design furnished by such persons. Moreover, nothing in this Section 7.02 shall
apply to impose on the Developer, or to relieve the City from, liability for active negligence of the City,
or its officers, employees, agents or consultants as delineated in Civil Code Section 2782. Any relief for
determining the City's sole or active negligence shall be determined by a court of law.
The City does not, and shall not, waive any rights against the Developer which it may have by
reason of the aforesaid hold harmless agreements because of the acceptance by the City, or deposit with
the City by the Developer of any insurance policies required pursuant to the Conditions of Approval.
The aforesaid hold harmless agreement by the Developer shall apply to all damages and claims for
damages of every kind suffered, or alleged to have been suffered by reasons of any of the aforesaid
operations of the Developer, or any subcontractor, regardless of whether or not such insurance policies
are determined to be applicable to any of such damages or claims for damages.
No act by the City, or its representatives in processing or accepting any plans, in releasing any
bond, in inspecting or accepting any work, or of any other nature, shall in any respect relieve the
Developer or anyone else from any legal responsibility, obligation or liability it might otherwise have.
ARTICLE VIII
CITY FEES AND CONTRIBUTIONS
Section 8.01. Funding of City Fees and Contributions. The City may requisition from the
Improvement Fund, in the manner specified in this Agreement, an amount which is sufficient to pay all or
a portion of the City Fees which are then estimated to be due and payable by Developer or its successors
and assigns upon receipt of a Payment Request in the form attached hereto as Exhibit C -2. The City shall
provide a credit against the applicable City Fees to Developer or its successors and assigns equal to the
amount of the moneys disbursed pursuant to the Payment Request. In the event Developer or its
successors or assigns is required to pay City Fees to the City prior to the issuance and sale of the Bonds,
Developer or its successors and assigns shall deposit with the City the balance due in immediately
available funds (a "Deposit ") and such Deposit shall be reimbursed to Developer when funds
subsequently deposited in the Improvement Fund are disbursed to the City in an equal amount for the
payment of such City Fees.
Some of the City Facilities anticipated to be constructed are included in City development impact
fee or other financing programs. Developer shall be entitled to full credit against all applicable City Fees
based upon Developer's construction of such City Facilities whether or not the Purchase Price of such
City Facilities is funded out of the Improvement Fund.
Developer agrees that $1,000,000 fee for Flood Control Improvements may be reserved in the
improvement fund and the Developer further agrees that said fee may be expended at the City's sole
discretion.
ARTICLE IX
MISCELLANEOUS
Section 9.01. Limited Liability of City. The Developer agrees that any and all obligations of
the City arising out of or related to this Acquisition Agreement are special and limited obligations of the
City and the City's obligations to make any payments hereunder are restricted entirely to the moneys, if
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14 000029
any, in the Improvement Fund and the account specified in Section 3.02 and from no other source. No
member of the City Council, or City staff member, employee or agent shall incur any liability hereunder
to the Developer or any other party in their individual capacities by reason of their actions hereunder or
execution hereof.
Section 9.02. Force Majeure. Whenever performance is required of a party hereunder, that
party shall use all due diligence and take all necessary measures in good faith to perform, but if
completion of performance is delayed by reasons of floods, earthquakes or other acts of God, war,
terrorism, vandalism, civil commotion, riots, strikes, picketing, or other labor disputes, damage to work
in progress by casualty, or by other cause beyond the reasonable control of the party, then the specified
time for performance shall be extended by the amount of the delay actually so caused.
Section 9.03. Excess Costs. The Developer agrees to pay all costs of the City Facilities that it is
obligated to construct pursuant to the Conditions of Approval in excess of the moneys available therefor
in the Improvement Fund, except as may otherwise be expressly provided in the Conditions of Approval.
Section 9.04. Audit. The City Engineer and /or the City's Director of Finance shall have the
right, during normal business hours and upon the giving of two (2) business days prior written notice to
the Developer, to review all books and records of the Developer pertaining to costs and expenses
incurred by the Developer relating to the City Facilities, and any bids taken or received for the
construction thereof or materials therefor.
Section 9.05. Attorney's Fees. In the event that any action or suit is instituted by either party
against the other arising out of this Acquisition Agreement, the party in whose favor final judgment shall
be entered shall be entitled to recover from the other party all costs and expenses of suit, including
reasonable attorneys' fees.
Section 9.06. Notices. Any notice, payment or instrument required or permitted by this
Acquisition Agreement to be given or delivered to either party shall be deemed to have been received
when personally delivered, or transmitted by telecopy or facsimile transmission, or seventy-two hours
following deposit of the same in any United States Post Office, registered or certified mail, postage
prepaid, addressed as follows:
City or CFD: City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attention: City Engineer
Developer: Pardee Homes
c/o Jim Bizzelle
26650 The Old Road
Suite 110
Valencia, CA 91381
with a copy to: Hewitt & O'Neil LLP
19900 MacArthur Blvd., Suite 1050
Irvine, CA 92612
Attn: John P. Yeager, Esq.
Each party may change its address or addresses for delivery of notice by delivering written notice
of such change of address to the other party.
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15 000030
Section 9.07. Severability. If any part of this Acquisition Agreement is held to be illegal or
unenforceable by a court of competent jurisdiction, the remainder of this Acquisition Agreement shall be
given effect to the fullest extent possible.
Section 9.08. Successors and Assigns. This Acquisition Agreement shall be binding upon and
inure to the benefit of the successors and assigns of the parties hereto. The Developer may assign its
rights pursuant to this Agreement to a purchaser (an "Assignee ") of a portion or portions of the property
which is /are located within the District the responsibility for the construction of all or a portion of the
City Facilities which remain to be constructed and the right to receive payment of the Purchase Price for
such City Facilities and Discrete Components thereof previously completed by the Developer. Such
Assignee shall, as a condition to receiving payment of a Purchase Price, enter into an assignment and
assumption agreement with the City and the Developer, in the form attached hereto as Exhibit D,
whereby such Assignee agrees, except as may be otherwise specifically provided therein, to assume the
obligations of the Developer pursuant to this Acquisition Agreement with respect to such City Facilities
and to be bound thereby and whereby the Developer shall be released with respect to such obligations. In
addition, Developer may assign to an Assignee, without the City's consent or the Assignee's execution of
an assignment and assumption agreement, the rights and obligations under this Acquisition Agreement
relating to the funding of City Fees or School Facilities, provided Developer gives City written notice of
the identity of the Assignee, the specific City Fees covered by the assignment and the property to be
owned by such Assignee.
Section 9.09. Other Agreements. The obligations of the Developer hereunder shall be those of
a party hereto and not as an owner of property in the CFD. Nothing herein shall be construed as affecting
the City's or the Developer's rights, or duties to perform their respective obligations, under other
agreements, use regulations or subdivision requirements relating to the development of the lands in the
CFD. This Acquisition Agreement shall not confer any additional rights, or waive any rights given, by
either party hereto under any development or other agreement to which they are a party.
Section 9.10. Waiver. Failure by a party to insist upon the strict performance of any of the
provisions of this Acquisition 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 Acquisition Agreement thereafter.
Section 9.11. Merger. No other agreement, statement or promise made by any party or any
employee, officer or agent of any party with respect to any matters covered hereby that is not in writing
and signed by all the parties to this Acquisition Agreement shall be binding.
Section 9.12. Parties in Interest. Nothing in this Acquisition Agreement, expressed or implied,
is intended to or shall be construed to confer upon or to give to any person or entity other than the City,
the CFD and the Developer any rights, remedies or claims under or by reason of this Acquisition
Agreement or any covenants, conditions or stipulations hereof; and all covenants, conditions, promises,
and agreements in this Acquisition Agreement contained by or on behalf of the City, the CFD or the
Developer shall be for the sole and exclusive benefit of the City, the CFD and the Developer.
Section 9.13. Amendment. This Acquisition Agreement may be amended, from time to time,
by written Supplement hereto and executed by both the City and the Developer.
Section 9.14. Counterparts. This Acquisition Agreement may be executed in counterparts,
each of which shall be deemed an original.
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16
Section 9.15. Governing Law. The provisions of this Acquisition Agreement shall be governed
by the laws of the State of California applicable to contracts made and performed in such State.
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17
000032
IN WITNESS WHEREOF, the parties have executed this Acquisition Agreement as of the day
and year first -above written.
ATTEST:
LN
City Clerk
06001.06:J7701
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H &O: #20882 v3
CITY OF MOORPARK on behalf of itself and its
COMMUNITY CITY FACILITIES DISTRICT NO.
2004 -1 ( MOORPARK HIGHLANDS)
Mayor
PARDEE HOMES, a California corporation
go
18 000033
EXHIBIT A
DESCRIPTION OF FACILITIES
City Facilities'
1. Spring Road — Tract boundary to Walnut Canyon
2. Spring Road — In -tract portion
3. Spring Road — Tract boundary to High Street
4. Street C
5. Street A
6. Park improvements
7. Spring Road wall enhancement from Charles Street to Los Angeles Avenue
8. Landscaping improvements required by Conditions of Approval
9. $1,000,000 contribution to City watershed protection and flood control studies and
improvements
City Fees
1. All City fees, charges or monetary contributions imposed pursuant to the Conditions of
Approval
School Facilities
1. Acquisition of school site
2. Moorpark Unified School District Grades K -12 school facilities
1/ The description of the types of City Facilities eligible to be financed is general in nature
and includes any appurtenant work and incidental expenses relating to each City Facility. The
final nature, scope or location of the City Facilities will be determined upon the preparation and
approval of plans and specifications for each City Facility. The description of street
improvements shall include, but not be limited to, all related soft costs, grading, dry utilities, wet
utilities, paving, striping, sidewalks, curbs and gutters, pedestrian access ramps, traffic controls
and street lighting. The description of park improvements shall include, but not be limited to, all
related soft costs, grading, irrigation, surface improvements, equipment and structures, parking
facilities and lighting. The description of landscaping improvements shall include, but not be
limited to, all related soft costs, grading, irrigation, surface improvements and materials. Each
usable segment of the required landscape improvements shall be considered a separate City
Facility for which the Purchase Price may be paid
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Page 1
EXHIBIT B
DISCRETE COMPONENTS OF CITY FACILITIES
I . Discrete Components of Street Improvements shall consist of the following:
(i) soft costs
(ii) grading
(iii) underground utilities
(iv) paving (excluding final asphalt cap)
(v) sidewalks, curb and gutter
(vi) street lighting
(vii) traffic controls
(viii) final asphalt cap and other final completion items
2. Discrete components of Park Improvements shall consist of the following:
(i)
soft costs
(ii)
grading
(iii)
irrigation
(iv)
surface improvements and equipment
(v)
final completion items
3. Discrete components of Landscape Improvements shall consist of the following:
(i)
soft costs
(ii)
grading
(iii)
surface improvements
(iv)
final completion items
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Page 1
000035
EXHIBIT C -1
FORM OF PAYMENT REQUEST
(City Facilities)
PAYMENT REQUEST NO.
The undersigned (the "Developer "), hereby requests payment in the total amount of
$ for the City Facilities (as defined in the Acquisition Agreement, dated as of
, 2005, between the City of Moorpark (the "City "), for and on behalf of the City of
Moorpark Community City Facilities District No. 2004 -1 (Moorpark Highlands) and the Developer), or
Discrete Components thereof (as described in Exhibit B to that Agreement), all as more fully described in
Attachment 1 hereto. In connection with this Payment Request, the undersigned hereby represents and
warrants to the City as follows:
1. He(she) is a duly authorized officer of the Developer, qualified to execute this Payment
Request for payment on behalf of the Developer and is knowledgeable as to the matters set forth herein.
2. To the extent that this payment request is with respect to a completed City Facility, the
Developer has submitted or submits herewith to the City as -built drawings or similar plans and
specifications for the items to be paid for as listed in Attachment 1 hereto with respect to any such
completed City Facility, and such drawings or plans and specifications, as applicable, are true, correct
and complete. To the extent that this payment request is for a Discrete Component, the Developer has in
its construction office a marked set of drawings or similar plans and specifications for the Discrete
Components to be acquired as listed in Attachment 1 hereto, which drawings or plans and specifications,
as applicable, are current and show all changes or modifications which have been made to date.
3. All costs of the City Facilities or Discrete Components thereof for which payment is
requested hereby are Actual Costs (as defined in the Acquisition Agreement referenced above) and have
not been inflated in any respect. The items for which payment is requested have not been the subject of
any prior payment request submitted to the City.
4. Supporting documentation (such as third party invoices) is attached with respect to each
cost for which payment is requested.
5. There has been compliance with applicable laws relating to prevailing wages for the
work to construct the City Facilities or Discrete Components thereof for which payment is requested.
6. The City Facilities or Discrete Components thereof for which payment is requested were
constructed in accordance with all applicable City or other governmental standards, and in accordance
with the as -built drawings or plans and specifications, as applicable, referenced in paragraph 2 above.
7. The Developer is in compliance with the terms and provisions of the Acquisition
Agreement and no portion of the amount being requested to be paid was previously paid.
8. The Purchase Price for each City Facility or Discrete Component (a detailed calculation
of which is shown in an Attachment 2 hereto for each such City Facility or Discrete Component), has
been calculated in conformance with the terms of Section 5.06 of the Acquisition Agreement.
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Page 1
9. Neither the Developer nor any Affiliate (as defined in the Acquisition Agreement) is in
default in the payment of ad valorem real property taxes or special taxes or special assessments levied in
the CFD (as defined in the Acquisition Agreement).
I hereby declare under penalty of perjury that the above representations and warranties are true
and correct.
Date:
Date:
DEVELOPER:
CITY:
Payment Request Approved for Submission to the
Director of Finance of the City of Moorpark
City Engineer
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Page 2
EXHIBIT C -1
ATTACHMENT 1
[list here all City Facilities or Discrete Components thereoffor which payment is requested, and attach
support documentation]
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Page 3 000038
EXHIBIT C -1
ATTACHMENT 2
CALCULATION OF PURCHASE PRICE
[Use a separate sheet for each City Facility or Discrete Component
for which payment is being requested]
1. Description (by reference to Exhibit B to the Acquisition Agreement) of
the City Facility or Discrete Component
2. Actual Cost (list here total of supporting invoices and /or other
documentation supporting determination of Actual Cost):
3. Subtractions from Purchase Price:
A. Holdback for Lien releases (see Section 5.06(C) of the
Acquisition Agreement)
B. Retention (see Section 5.06(D) of the Acquisition Agreement)
4. Total disbursement requested (amount listed in 2, less amounts, if any,
listed in 3)
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Page 4
EXHIBIT C -2
FORM OF PAYMENT REOUEST (FEES)
1. The undersigned (the "Developer ") hereby requests payment in the amount of $
( "Requested Amount ") from CFD No. 2004 -1 for the City Fees specified below:
Fee Cateeory
Amount Requested
No. and Description of
Lots/DUs for which Fees
Requested
2. The Requested Amount is due and payable and has not formed the basis of any prior
request or disbursement.
3. The Developer is in compliance with the terms and provisions of the Acquisition
Agreement.
4. Neither the Developer not any Affiliate (as defined in the Acquisition Agreement) is in
default in the payment of ad valorem real property taxes or assessments of special assessments or taxes
levied in the District (as defined in the Acquisition Agreement).
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I hereby declare under penalty of perjury that the above representations and warranties are true
and correct.
Date:
Date:
DEVELOPER:
By:
Name:
Title:
By:
Name:
Title:
CITY:
Payment Request Approved for Submission to Finance
Director
LIM
Director of Public Works
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EXHIBIT D
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
Pursuant to an Acquisition Agreement dated as of , 2005 (the "Agreement ") by and
between the City of Moorpark ( "City ") and , [type of entity] (the "Owner "), which
Agreement is hereby incorporated herein by this reference, and for good and valuable consideration,
receipt of which is hereby acknowledged, the undersigned agree as follows:
1. The assignment, assumption and release provided for under this Assignment and
Assumption Agreement ( "Assignment ") is made together with the sale, transfer or assignment of all or a
part of the property subject to the Agreement. The property sold, transferred or assigned together with
this Assignment is included within CFD No. 2004 -1 (Moorpark Highlands) of the City and described in
"Attachment 1" attached hereto and incorporated herein by this reference (the "Subject Property").
2. , as the assignor hereof (the "Assignor ") hereby grants, sells, transfers,
conveys assigns and delegates to ( "Assignee "), all of Assignor's rights, title,
interest, benefits, privileges, duties and obligations arising under or from the Agreement with respect to
the Subject Property and the following City Facilities and Assignor is released from all such duties and
obligations: [Insert description of City Facilities to be subject of Assignment.]:
3. Assignee hereby accepts the foregoing assignment and unconditionally assumes and
agrees to perform all of the duties and obligations of Assignor arising under or from the Agreement as
owner of the Subject Property.
4. The sale, transfer or assignment of the Subject Property and the assignment and
assumption provided for under this Assignment are the subject of additional agreements between
Assignor and Assignee. Notwithstanding any term, condition or provision of such additional agreements,
the rights of the City arising under or from the Agreement and this Assignment shall not be affected,
diminished or defeated in any way, except upon the express written agreement of the City.
5. Assignor and Assignee execute this Assignment pursuant to Section 9.08 of the
Agreement, and the City evidences its consent to this Assignment by signing below.
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H &O: #20882 v3 D -1
IN WITNESS WHEREOF, the parties have executed this Assignment on
ASSIGNOR:
By:
Name:
Title:
ASSIGNEE:
By: _
Name:
Title:
CITY:
CITY OF MOORPARK
By:
Its: City Manager
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ATTACHMENT 1
DESCRIPTION OF SUBJECT PROPERTY
8/18/05 4000.94
H &O: #20882 v3 D -3 000044
RESOLUTION NO. 2005-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF MOORPARK, CALIFORNIA, OF FORMATION OF
COMMUNITY FACILITIES DISTRICT AND TO LEVY A
SPECIAL TAX IN COMMUNITY FACILITIES DISTRICT
NO. 2004 -1 (MOORPARK HIGHLANDS)
WHEREAS, on September 15, 2004, this Council adopted
Resolution No. 2004 -2239 (the "Resolution of Intention ") with
respect to Community Facilities District No. 2004 -1 (Moorpark
Highlands) (the "CFD ") of the City pursuant to the Mello -Roos
Community Facilities Act of 1982, as amended, Chapter 2.5 of Part
1 of Division 2 of Title 5, commencing with Section 53311, of the
California Government Code (the "Act "); and
WHEREAS, the Resolution of Intention incorporates a map of
the proposed boundaries of the CFD, states the facilities and
services to be provided, the cost of providing such facilities
and services and the rate and method of apportionment of the
special tax to be levied within the CFD to pay principal of and
interest on bonds proposed to be issued with respect to the CFD,
and is on file with the City Clerk and the provisions thereof are
incorporated herein by this reference as if fully set forth
herein; and
WHEREAS, the facilities and services to be provided as
stated in the Resolution of Intention are set forth in Exhibit A
attached hereto and hereby made a part hereof; and
WHEREAS, this Council noticed a public hearing to be held on
October 20, 2004, all pursuant to the Act and the Resolution of
Intention relating to the proposed formation of the CFD; and
WHEREAS, on October 20, 2004, this Council found that, due
to the complexity of the negotiations, the public hearings should
be opened, testimony taken, if any, and continued to December 15,
2004, and on December 15, 2004 and on dates subsequent thereto,
with the consent of the proponent of the CFD, this Council again
continued the public hearings, the most recent being a
continuation to September 21, 2005.
WHEREAS, at the hearing on September 21, 2005 all interested
persons desiring to be heard on all matters pertaining to the
Attachment 2
000045
Resolution No. 2005 -
Page 2
formation of the CFD, the facilities and services to be provided
therein and the levy of said special tax were heard and a full
and fair hearing was held; and
WHEREAS, at the hearing evidence was presented to this
Council on said matters before it, including a CFD Report (the
"Report ") as to the facilities and services to be provided in the
CFD and the costs thereof and incidental expenses related
thereto, a copy of which is on file with the City Clerk, and this
Council and the proponent of the CFD, at the conclusion of said
hearing, is fully advised in the premises; and
WHEREAS, written protests with respect to the formation of
the CFD, the furnishing of specified types of facilities and
services and the rate and method of apportionment of the special
taxes have not been filed with the City Clerk by fifty percent or
more of the registered voters residing within the territory of
the CFD or property owners of one -half or more of the area of
land within the CFD and not exempt from the proposed special tax;
and
WHEREAS, the special tax as described herein and proposed to
be levied in the CFD to pay for the proposed facilities and
services to be provided therein has not been eliminated by
protest by fifty percent or more of the registered voters
residing within the territory of the CFD or the owners of one -
half or more of the area of land within the CFD and not exempt
from the special tax;
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK DOES
HEREBY RESOLVE AS FOLLOWS:
SECTION 1.
true and correct.
Recitals Correct. The foregoing recitals are
SECTION 2. No Majority Protest. The proposed special
tax to be levied within the CFD has not been precluded by
majority protest pursuant to section 53324 of the Act.
SECTION 3.
Name of CFD. The
"Community Facilities
of the City is hereby
district designated
(Moorpark Highlands)"
to the Act.
SECTION 4.
CFD, are as set
in the Ventura
Boundaries of CFD.
forth in the map of the
County Recorder's Office
community facilities
District No. 2004 -1
established pursuant
The boundaries of the
CFD heretofore recorded
on October 5, 2004, in
000046
Resolution No. 2005 -
Page 3
Book 19 at Page 4 of Maps of Assessment and Community Facilities
Districts.
SECTION
type of publ
the CFD and
listed as
"Services ")
incorporated
5. Description
of Facilities and
Services. The
Lc facilities
and
services proposed to
be financed by
pursuant to
the
Act shall consist
of those items
facilities (the
"Facilities ") and
services (the
in Exhibit
A
hereto and by this reference
herein.
SECTION 6. Joint Facilities. Certain of the public
facilities proposed to be provided within the CFD include certain
facilities to be provided by the Moorpark Unified School
District, and as to such entity, City staff has facilitated the
preparation of a Joint Community Facilities Agreement between the
City, the Moorpark Unified School District and Pardee Homes, in
accordance with Section 53316.2 of the Act, the form of which has
been reviewed and approved by City staff and has been made
available for review by the City Council. The City Council
hereby finds that such joint facilities agreement will be
beneficial to the residents of the CFD and the City and
authorizes and ratifies the execution of such joint facilities
agreement by an authorized officer of the City for and in the
name and on behalf of the City and the CFD, in such form,
together with any additions thereto or changes therein deemed
necessary or advisable by the authorized officer executing such
agreement upon consultation with Bond Counsel or the City
Attorney. The City shall not use the proceeds of the special
tax of the CFD or of any bonds issued for the CFD for the
acquisition of facilities to be owned by the Moorpark Unified
School District unless and until such entity and the City have
entered into such Joint Community Facilities Agreement.
SECTION 7. Special Tax.
a. Except to the extent that funds are otherwise
available to the CFD to pay for the Facilities and /or the
principal and interest as it becomes due on bonds of the
CFD issued to finance the Facilities, or for the Services,
a special tax (the "Special Tax ") sufficient to pay the
costs thereof, secured by the recordation of a continuing
lien against all non - exempt real property in the CFD, is
intended to be levied annually within the CFD, and
collected in the same manner as ordinary ad valorem
property taxes or in such other manner as may be prescribed
by this Council.
000047
Resolution No. 2005 -
Page 4
b. The proposed rate and method of apportionment of
the Special Tax among the parcels of real property within
the CFD, in sufficient detail to allow each landowner
within the proposed CFD to estimate the maximum amount such
owner will have to pay, are shown in Exhibit B attached
hereto and by this reference incorporated herein.
C. In the case of any Special Tax to pay for the
Facilities and to be levied against any parcel used for
private residential purposes: (i) the maximum special tax
shall be specified as a dollar amount which shall be
calculated and thereby established not later than the date
on which the parcel is first subject to the tax because of
its use for private residential purposes and which amount
shall not be increased over time over two percent per year;
(ii) the tax year after which no further Special Tax
subject to this sentence shall be levied or collected shall
be as set forth in Exhibit B hereto; and (iii) under no
circumstances will the Special Tax levied against any
parcel subject to this sentence be increased as a
consequence of delinquency or default by the owner of any
other parcel within the CFD by more than ten percent. For
the purposes hereof, a parcel is used for "private
residential purposes" not later than the date on which an
occupancy permit for private residential use is issued.
SECTION 8. Increased Demands. It is hereby found and
determined that the Facilities and Services are necessary to meet
increased demands placed upon local agencies as the result of
development occurring in the CFD.
SECTION 9. Responsible Official. The office of the City
Manager of the City of Moorpark, 299 Moorpark Avenue, Moorpark,
California 93021 (805 -517 -6212) is designated as the office
responsible for preparing annually a current roll of special tax
levy obligations by assessor's parcel number, estimating future
special tax levies and for establishing procedures to promptly
respond to inquiries regarding estimates of future special tax
levies. The City may contract with private consultants to
provide this service in lieu of the Director of Finance.
SECTION 10. Tax Lien. The Special Tax will be collected
and enforced as a separate line item on the regular property tax
bill. However, this City Council reserves the right, under
Section 53340, to utilize any method of collecting the Special
Tax which it shall, from time to time, determine to be in the
best interests of the City, including, but not limited to, direct
Resolution No. 2005 -
Page 5
billing by the City to the property owners and supplemental
billing. In particular, the City may bill the 2005 -06 Special
Taxes directly, and not post those taxes to the regular, secured
property tax roll. The procedure for collection in any case when
the City chooses to collect the Special Tax through direct
billing shall be as follows:
After levy by the City Council, whether pursuant to
authorizing ordinance or annual resolution, the City Director of
Finance shall prepare and send to the property owners by first
class U.S. Mail, at their addresses as shown on the last
equalized assessment roll, a tax bill, which shall specify the
amount due, give instructions for payment to the City Director of
Finance, state (as is hereby authorized and provided) that the
first installment of the Special Tax (500 of the annual Special
Tax shall be payable in each installment) shall be delinquent if
not received by the City Director of Finance by the close of
business on the next succeeding December 10, and the second
installment shall be delinquent if not paid by the City Director
of Finance by the close of business on the next succeeding April
10, shall specify (as is hereby authorized and provided) that all
delinquencies shall incur an immediate loo penalty, and an
additional 1 1 /2o penalty on the first day of each month
beginning with the next succeeding September 1, and shall specify
(as is hereby authorized and provided) that delinquencies are
subject to judicial foreclosure under the procedure set forth in
§53356.1 and following of the Government Code.
The City Council, as an alternative enforcement
mechanism, may by resolution elect to place delinquent Special
Taxes on the next secured property tax roll. In such event,
attorneys' fees and costs to date in any foreclosure action, and
penalties on the delinquency through the following December 1,
may be included in the amount to be placed on the roll. Both
remedies may be pursued simultaneously, but if the property owner
pays the regular property tax bill for the subsequent year,
including the delinquent Special Tax posted to that bill, the
foreclosure action may thereafter be pursued solely for
attorneys' fees and costs incurred subsequent to the posting of
the delinquent Special Tax on the secured roll.
SECTION 11.
Act, the annual
(h) of Section
Constitution, of
$43,750,000 and
the voters of t]
Appropriations Limit. In accordance with the
appropriations limit, as defined by subdivision
8 of Article XIII B of the California
the CFD is hereby preliminarily established at
said appropriations limit shall be submitted to
le CFD as hereafter provided. The proposition
1 I t a
Resolution No. 2005 -
Page 6
establishing said annual appropriations limit shall become
effective if approved by the qualified electors voting thereon
and shall be adjusted in accordance with the applicable
provisions of the Act.
SECTION 12. Election. Pursuant to the provisions of the
Act, the proposition of the levy of the Special Tax and the
proposition of the establishment of the appropriations limit
specified above shall be submitted to the qualified electors of
the CFD at an election the time, place and conditions of which
election shall be as specified by a separate resolution of this
Council. The qualified electors for the election to be held in
these proceedings shall be the landowners owning land within the
District. The City Council will conduct the election by mailed
ballot and hereby designates the City Clerk as the official to
conduct the mailed - ballot election.
SECTION 13. Advances of Funds. Advances of funds or
contributions of work in kind from any lawful source,
specifically including owners of property within the District,
may be reimbursed from bond proceeds or from special tax revenue
or both to the extent of the lesser of the value or cost of the
contribution, but any agreement to do so shall not constitute a
debt or liability of the City.
SECTION 14.
proceedings
of the Act
resolution
bonds.
Callable Bonds. Any bonds issued in these
shall be callable in accordance with the provisions
and as more specifically to be set forth in any
providing for the form, execution and issuance of
SECTION 15. Prior Proceedings Valid.
now finds and determines that all proceedings
the adoption of this Resolution were and
conformity with the requirements of the Act.
and finding is final and conclusive in accord
Code Section 53325.1.
SECTION 16.
to the adoption
resolution to be
This City Council
up to and including
are valid and in
This determination
ance with Government
Certification. The City Clerk shall certify
of this resolution and cause a certified
filed in the book of original resolutions.
000050
Resolution No. 2005 -
Page 7
PASSED AND ADOPTED this 21st day of September, 2005.
Patrick Hunter, Mayor
ATTEST:
Deborah S. Traffenstedt, City Clerk
Attachments: Exhibit "A" List of Authorized Facilities and Services
Exhibit "B" Rate and Method of Apportionment
000051-
EXHIBIT A
List of Authorized Facilities and Services
COMMUNITY FACILITIES DISTRICT NO. 2004 -1
(Moorpark Highlands)
CITY OF MOORPARK, VENTURA COUNTY, CALIFORNIA
Facilities
The Facilities which are proposed to be financed with
the proceeds of the sale of bonds of the proposed community
facilities district, or the payment of the fees to the
appropriate jurisdiction with respect to such facilities
proposed to be financed with the proceeds of the sale of bonds
of the proposed community facilities district, generally
described as follows:
• City of Moorpark Infrastructure, including Development Impact
Fees (i.e. Police Facilities, Fire Facilities /Equipment,
Streets /Minor Bridges /Culverts, Traffic Signals /Controllers,
Storm Drainage and Retention Facilities, General
Facilities /Vehicles /Equipment, Open Space Acquisition, Park
Land /Facilities, Community Center, Library
Facilities /Collection and Major Bridge.)
• Street Improvements for Spring Road, "A" Street, and "C"
Street (including, but not limited to, the associated
sidewalks, traffic controls, street lighting, curb and
gutter, pedestrian access ramps, grading, design)
• Wall Improvements (Los Angeles Avenue to Charles Street)
• School Facilities, including acquisition of a school
site, and school fees
• Public Park, Recreation or Open Space Facilities
• Landscaping of Public Streets, Right -Of -Ways, Storm Drain
Facilities, Slopes, Mitigation Monitoring and Appurtenant
Facilities
The foregoing description of the types of Facilities
eligible to be financed is general in nature and includes any
appurtenant work and incidental expenses relating to the
Facilities. The final nature and location of the facilities will
be determined upon the preparation of final plans and
specifications for such facilities.
000052
Services
Services for the district include funding for Police
services within or in the vicinity of the District, in addition
to those services provided in the territory of the District and
do not supplant services already available within that territory,
to the extent authorized by the Mello -Roos Community Facilities
Act of 1982, as amended.
nther
The bond related expenses authorized include the City,
underwriters discount, financial advisor, appraisals, reserve
fund deposit, capitalized interest, bond counsel, disclosure
counsel, special tax consultant, bond and official statement
printing and all other incidental expenses.
Administrative fees include those of the City, the Community
Facilities District, the Bond Trustee, the Special Tax Consultant
and the Fiscal Agent, related to the Community Facilities
District and the Bonds.
000053
EXHIBIT B
RATE AND METHOD OF APPORTIONMENT FOR
COMMUNITY FACILITIES DISTRICT NO. 2004-1
OF THE CITY OF MOORPARK
(Moorpark Highlands)
A special tax as hereinafter defined shall be levied on and collected for Community Facilities
District No. 2004 -1 (Moorpark Highlands) of the City of Moorpark ( "CFD No. 2004 -1 ") each Fiscal
Year, in an amount determined by the City Council of the City of Moorpark through the application
of the appropriate Special Tax for "Developed Property," "Final Map Property," and "Undeveloped
Property" as described below. All of the real property in CFD No. 2004 -1, unless exempted by law
or by the provisions hereof, shall be taxed for the purposes, to the extent, and in the manner herein
provided.
SECTION A
DEFINITIONS
The terms hereinafter set forth have the following meanings:
"Acre or Acreage" means the land area of an Assessor's Parcel as shown on an Assessor's
Parcel Map, or if the land area is not shown on an Assessor's Parcel Map, the land area shown
on the applicable final map, parcel map, condominium plan, or other recorded County parcel
map. The square footage of an Assessor's Parcel is equal to the Acreage multiplied by 43,560.
The minimum acreage of Taxable Property for the CFD is determined in accordance with
Section J.
"Act" means the Mello -Roos Communities Facilities Act of 1982 as amended, being Chapter
2.5, Division 2 of Title 5 of the Government Code of the State of California.
"Administrative Expenses" means any ordinary and necessary expense of the City of
Moorpark to carry out the administration of CFD No. 2004 -1 related to the determination of the
amount of the levy of Special Taxes, the collection of Special Taxes including the expenses of
collecting delinquencies, the administration of Bonds, the payment of salaries and benefits of
any City employee whose duties are directly related to the administration of CFD No. 2004 -1,
and costs otherwise incurred in order to carry out the authorized purposes of CFD No. 2004 -1.
"Affordable Unit(s)" means, for each Fiscal year, up to a total of 25 dwelling unit(s) located
on an Assessor's Parcel(s) of Residential Property within Zone 2 that are subject to deed
restrictions, resale restrictions, and/or regulatory agreements recorded in favor of the City
providing for very low income housing prior to March 1 of the prior Fiscal Year. In order to
insure that a dwelling unit is correctly classified as an Affordable Unit, the owner of such
property shall provide the CFD Administrator with a copy of any applicable deed restrictions,
resale restrictions, and/or regulatory agreements. Dwelling units shall be classified as
Affordable Units by the CFD Administrator in the chronological order in which such
notification is received. If the total number of Affordable Units exceeds the amount stated
City of Moorpark
Community Facilities District No. 2004 -1
September 7, 2005
Page 1
000054
above, then the units exceeding such total shall not be considered Affordable Units and shall be
assigned to Land Use Classes 1 through 5 as described in Section D below based on the
Building Square Footage for such units.
"Assessor's Parcel" means a lot or parcel of land designated on an Assessor's Parcel Map with
an assigned Assessor's Parcel Number within the boundaries of CFD No. 2004 -1.
"Assessor's Parcel Map" means an official map of the Assessor of the County designating
parcels by Assessor's Parcel Number.
"Assigned Special Tax for Facilities" means the annual special tax of that name described in
Section D below.
"Backup Special Tax for Facilities" means the Special Tax of that name described in Section
E below.
"Bonds" means any obligation to repay a sum of money, including obligations in the form of
bonds, notes, certificates of participation, long -term leases, loans from government agencies, or
loans from banks, other financial institutions, private businesses, or individuals, or long -term
contracts, or any refunding thereof, to which Special Taxes have been pledged.
"Boundary Map" means the map of the boundaries for CFD No. 2004 -1, as approved by the
City Council.
"Building Permit" means a permit for new construction for a residential dwelling or non-
residential structure. For purposes of this definition, "Building Permit" shall not include permits
for construction or installation, retaining walls, utility improvements, or other such
improvements not intended for human habitation.
"Building Square Footage" or `BSF" means the square footage of assessable internal living
space, exclusive of garages or other structures not used as living space, as determined by
reference to the building permit application for such Assessor's Parcel.
"Calendar Year" means the period commencing January 1 of any year and ending the
following December 31.
"CFD Administrator" means an official of the City, or designee thereof, responsible for
determining the Special Tax Requirement and providing for the levy and collection of the
Special Taxes.
"CFD No. 2004 -1" means Community Facilities District No. 2004 -1 (Moorpark Highlands)
established by the City under the Act.
"City" means the City of Moorpark.
City of Moorpark September 7, 2005
Community Facilities District No. 2004 -1 Page 2
000055
"City Council" means the City Council of the City, acting as the Legislative Body of CFD
No. 2004 -1, or its designee.
"City Police Services" means the costs of police services for CFD No. 2004 -1.
"Condo Unit" means each separate residential condominium unit that comprises an
independent facility capable of conveyance or rental separate from adjacent residential dwelling
units.
"Consumer Price Index" means the index published monthly by the U.S. Department of
Labor, Bureau of Labor Statistics for all urban consumers in the Los Angeles- Riverside - Orange
County area.
"County" means the County of Ventura.
"Developed Property" means all Assessor's Parcels within Zones 1, 2, 3, and 4 of CFD No.
2004 -1 for which Building Permits were issued on or before April 1 preceding the Fiscal Year
for which Special Taxes are being levied, provided that such Assessor's Parcels were created on
or before January 1 of the prior Fiscal Year and that each such Assessor's Parcel is associated
with a Lot, as determined reasonably by the City.
"Exempt Property" means all Assessor's Parcels within Zones 1, 2, 3, and 4 of CFD No.
2004 -1 designated as being exempt from the Special Tax as determined in Section J.
"Final Map" means a subdivision of property evidenced by the recordation of a final map,
parcel map, or lot line adjustment, pursuant to the Subdivision Map Act (California
Government Code Section 66410 et seq.) or the recordation of a condominium plan pursuant to
California Civil Code 1352 that creates individual lots for which Building Permits may be
issued without further subdivision.
"Final Map Property" means all Assessor's Parcels: (i) that are included in a Final Map that
was recorded prior to the January 1St preceding the Fiscal Year in which the Special Tax is
being levied, and (ii) for which a Building Permit was not issued prior to the March 1 preceding
the Fiscal Year in which the Special Tax is being levied.
"Fiscal Year" means the period commencing on July 1 of any year and ending the following
June 30.
"Land Use Type" means any of the land use types listed in Tables 1 to 4 below.
"Lot" means an individual legal lot created by a Final Map or Condo Unit created by a
condominium plan for which a Building Permit could or has been issued.
"Maximum Special Tax" means the Maximum Special Tax for Facilities and the Maximum
Special Tax for Services, determined in accordance with Section C, which can be levied by
CFD No. 2004 -1 in any Fiscal Year on any Assessor's Parcel within Zones 1, 2, 3, or 4.
City of Moorpark
Community Facilities District No. 2004 -1
September 7, 2005
Page 3
000056
"Maximum Special Tax for Facilities" means the Maximum Special Tax, determined in
accordance with Section C. La and C. Lb, that can be levied by CFD No. 2004 -1 in any Fiscal
Year on any Assessors' Parcel.
"Maximum Special Tax for Services" means the Maximum Special Tax, determined in
accordance with Section C. Lc, that can be levied by CFD No. 2004 -1 in any Fiscal Year on any
Assessor's Parcel of Developed Property.
"Non Residential Property" means all Assessors' Parcels of Developed Property for which a
building permit was issued for any type of non - residential use.
"Partial Prepayment Amount" means the amount required to prepay a portion of the Special
Tax for Facilities obligation for an Assessor's Parcel, as described in Section H.
"Prepayment Amount" means the amount required to prepay the Annual Special Tax for
Facilities obligation in full for an Assessor's Parcel, as described in Section G.
"Proportionately" means that the ratio of the actual Annual Special Tax levy to the applicable
Special Tax is equal for all applicable Assessor's Parcels within Zones 1, 2, 3, and 4.
"Residential Property" means all Assessors' Parcels of Developed Property within Zones 1, 2,
3, and 4 of CFD No. 2004 -1 for which a building permit has been issued for purposes of
constructing one or more residential dwelling units.
"Special Tax" means any of the special taxes authorized to be levied by CFD No. 2004 -1
(including the Special Tax for Facilities and the Special Tax for Services) pursuant to the Act to
fund the Special Tax Requirement.
"Special Tax for Facilities" means any of the special taxes authorized to be levied by CFD No.
2004 -1 pursuant to the Act to fund the Special Tax Requirement for Facilities.
"Special Tax for Services" means any of the special taxes authorized to be levied by CFD No.
2004 -1 pursuant to the Act to fund the Special Tax Requirement for Services.
"Special Tax Requirement for Facilities" means the amount required in any Fiscal Year for
CFD No. 2004 -1 to pay: (i) the debt service or the periodic costs on all outstanding Bonds due
in the Calendar Year that commences in such Fiscal Year, (ii) Administrative Expenses, (iii) the
costs associated with the release of funds from an escrow account, and (iv) any amount required
to establish or replenish any reserve funds established in association with the Bonds, (v) the
collection of funds in any Fiscal Year to pay directly for the acquisition or construction of
eligible facilities or for the payment of City Police Services authorized by CFD No. 2004 -1
provided that the inclusion of such amount does not cause an increase in the levy of Special Tax
on Final Map Property or Undeveloped Property, less (vi) any amount available to pay debt
service or other periodic costs on the Bonds pursuant to any applicable bond indenture, fiscal
agent agreement, or trust agreement.
City of Moorpark
Community Facilities District No. 2004 -1
September 7, 2005
Page 4
000057
"Special Tax Requirement for Services" means the amount determined in any Fiscal Year for
CFD 2004 -1 equal to (i) the budgeted costs of the City Police Services during the current Fiscal
Year, (ii) Administrative Expenses, and (iii) anticipated delinquent Special Taxes for Services
based on the delinquency rate in CFD 2004 -1 for the previous Fiscal Year.
"Taxable Property" means all Assessors' Parcels within Zones 1, 2, 3, and 4 of CFD No.
2004 -1 that are not Exempt Property.
"Undeveloped Property" means all Assessors' Parcels within Zones 1, 2, 3, and 4 of CFD No.
2004 -1 of Taxable Property which are not Developed Property or Final Map Property.
"Unit" means each separate residential unit that comprises an independent facility capable of
conveyance or rental separate from adjacent residential dwelling units.
"Zone(s)" means Zone 1, 2, 3, or 4 as geographically identified on the boundary map of the
CFD No. 2004 -1.
"Zone 1" means the specific area identified on the Boundary Map as Zone 1 of CFD No. 2004-
1.
"Zone 2" means the specific area identified on the Boundary Map as Zone 2 of CFD No. 2004-
1.
"Zone 3" means the specific area identified on the Boundary Map as Zone 3 of CFD No. 2004-
1.
"Zone 4" means the specific area identified on the Boundary Map as Zone 4 of CFD No. 2004-
1.
SECTION B
CLASSIFICATION OF ASSESSOR'S PARCELS
Each Fiscal Year, beginning with Fiscal Year 2006 -2007, each Assessor's Parcel within CFD No.
2004 -1 shall be categorized into Zones 1, 2, 3, or 4 and shall be classified as Taxable Property or
Exempt Property. In addition, each Fiscal Year, beginning with Fiscal Year 2006 -2007, each
Assessor's Parcel of Taxable Property shall be further classified as Developed Property, Final Map
Property, or Undeveloped Property. Lastly, each Fiscal Year, beginning with Fiscal Year 2006 -2007,
each Assessor's Parcel of Developed Property shall further be classified as Residential Property or
Non Residential Property.
City of Moorpark
Community Facilities District No. 2004 -1
September 7, 2005
Page 5
SECTION C
MAXIMUM SPECIAL TAXES FOR ZONES 1, 2, 3, AND 4
1. Developed Property
a. The Maximum Special Tax for Facilities for each Assessor's Parcel of Residential
Property that is classified as Developed Property in any Fiscal Year shall be the amount
determined by the greater of (i) the application of the Assigned Special Tax for Facilities
set forth in Section D or (ii) the application of the Backup Special Tax for Facilities set
forth in Section E.
b. The Maximum Special Tax for Facilities for each Assessor's Parcel of Non - Residential
Property that is classified as Developed Property in any Fiscal Year shall be the
Assigned Annual Special Tax for Facilities set forth in Section D.
The Maximum Special Tax for Services for each Assessor's Parcel of Residential Property that is
classified as Developed Property in Fiscal Year 2005 -2006 shall be $400 per Lot. The Maximum
Special Tax for Services for each Assessor's Parcel of Non-Residential Property that is classified as
Developed Property in any Fiscal Year shall be $1,500 per Acre. On each July 1, commencing July
1, 2006, the Maximum Special Tax for Services for the prior Fiscal Year shall be adjusted by an
amount equal to the greater of (i) three percent (3.00 %), or (ii) the percentage change in the
Consumer Price Index for the Calendar Year ending in December of the prior Fiscal Year, not to
exceed seven percent (7.00 %).
2. Final Map Property
The Maximum Special Tax for Facilities for each Assessor's Parcel classified as Final Map
Property shall be the Assigned Special Tax for Facilities set forth in Section D.
3. Undeveloped Property
The Maximum Special Tax for each Assessor's Parcel classified as Undeveloped Property
shall be the Assigned Special Tax for Facilities set forth in Section D.
SECTION D
ASSIGNED SPECIAL TAX FOR FACILITIES
FOR ZONES 1, 2, 3, AND 4
1. Developed Property
Each Fiscal Year, each Assessor's Parcel of Developed Property within Zones 1, 2, 3, and 4
shall be subject to an Assigned Special Tax for Facilities. The Assigned Special Tax for
Facilities applicable to an Assessor's Parcel of Developed Property within Zones 1, 2, 3, and
4 for any Fiscal Year shall be determined pursuant to Tables 1 through 4 below.
City of Moorpark
Community Facilities District No. 2004 -1
September 7, 2005
Page 6
000059
TABLE 1
ZONE 1 - DEVELOPED PROPERTY
ASSIGNED ANNUAL SPECIAL TAX RATES FOR FACILITIES
Land Use Type
Building Square
Footage
Assigned Annual
Special Tax
1. Residential Property
Less than 2,151
$3,858 per Unit
2. Residential Property
2,151 — 2,350
$4,044 per Unit
3. Residential Property
2,351 — 2,550
$4,200 per Unit
4. Residential Property
2,551 2,750
$4,268 per Unit
5. Residential Property
Greater than 2,750
$4,483 per Unit
6. Non Residential Property
N/A
$40,182 per Acre
TABLE 2
ZONE 2 - DEVELOPED PROPERTY
ASSIGNED ANNUAL SPECIAL TAX RATES FOR FACILITIES
City of Moorpark September 7, 2005
Community Facilities District No. 2004 -1 Page 7
OOOOGO
Building Square
Assigned Annual
Land Use Type
Footage
Special Tax
1. Residential Property
Less than 1,401
$2,041 per Condo
Unit
2. Residential Property
1,401 — 1,600
$2,383 per Condo
Unit
4. Residential Property
Greater than 1,600
$2,818 per Condo
Unit
5. Non Residential Property
N/A
$79,030 per Acre
City of Moorpark September 7, 2005
Community Facilities District No. 2004 -1 Page 7
OOOOGO
TABLE 3
ZONE 3 - DEVELOPED PROPERTY
ASSIGNED ANNUAL SPECIAL TAX RATES FOR FACILITIES
Land Use Type
Building Square
Footage
Assigned Annual
Special Tax
1. Residential Property
Less than 2,351
$4,497 per Unit
2. Residential Property
2,351 - 2,600
$4,581 per Unit
3. Residential Property
2,601 - 2,850
$4,665 per Unit
4. Residential Property
2,851 - 3,100
$4,786 per Unit
5. Residential Property
3,101 - 3,350
$4,977 per Unit
6. Residential Property
3,351 - 3,600
$5,556 per Unit
7. Residential Property
3,601 - 3,850
$5,742 per Unit
8. Residential Property
3,851 - 4,100
$5,943 per Unit
9. Residential Property
4,101 - 4,350
$6,203 per Unit
10. Residential Property
4,351 - 4,600
$6,390 per Unit
11. Residential Property
Greater than 4,600
$6,576 per Unit
12. Non Residential Property
N/A
$25,511 per Acre
City of Moorpark
Community Facilities District No. 2004 -1
September 7, 2005
Page 8
000061
TABLE 4
ZONE 4 - DEVELOPED PROPERTY
ASSIGNED ANNUAL SPECIAL TAX RATES FOR FACILITIES
Land Use Type
Building Square
Footage
Assigned Annual
Special Tax
1. Residential Property
Less than 3,201
$5,868 per Unit
2. Residential Property
3,201 — 3,750
$6,278 per Unit
3. Residential Property
3,751 — 4,300
$6,464 per Unit
4. Residential Property
4,301 — 4,900
$6,725 per Unit
5. Residential Property
Greater than 4,900
$7,097 per Unit
6. Non Residential Property
N/A
$10,034 per Acre
2. Final Map Property and Undeveloped Property
Each Fiscal Year, each Assessor's Parcel of Final Map Property and Undeveloped Property
within Zones 1 to 4 shall be subject to an Assigned Special Tax for Facilities. The Assigned
Special Tax rate for an Assessor's Parcel classified as Final Map Property and Undeveloped
Property for Fiscal Year 2006 -2007 shall be $40,182 per Acre for Zone 1, $79,030 per Acre
for Zone 2, $25,511 per Acre for Zone 3, and $10,034 per Acre for Zone 4.
SECTION E
BACKUP SPECIAL TAXES FOR FACILITIES
FOR ZONES 1, 2, 3, AND 4
Each Fiscal Year, each Assessor's Parcel of Developed Property classified as Residential Property
within Zones 1, 2, 3, or 4 shall be subject to a Backup Special Tax for Facilities. In each Fiscal Year,
the Backup Special Tax for Developed Property classified as Residential Property within a Final
Map shall be the amount per Lot calculated according to the following formula:
I:M
RxA
L
The terms above have the following meanings:
B = Backup Special Tax for Facilities per Lot in each Fiscal Year.
R = Maximum Special Tax for Facilities per Acre for Undeveloped Property
for the applicable Fiscal Year.
City of Moorpark
Community Facilities District No. 2004 -1
September 7, 2005
Page 9
000062
A = Acreage of Developed Property classified or to be classified as
Residential Property in such Final Map.
L = Lots in the Final Map which are classified or to be classified as
Residential Property.
Notwithstanding the foregoing, if all or any portion of the Final Map(s) described in the preceding
paragraph is subsequently changed or modified, then the Backup Special Tax for Facilities for each
Assessor's Parcel of Developed Property classified or to be classified as Residential Property in such
Final Map area that is changed or modified shall be an amount per square foot of Acreage calculated
as follows:
1. Determine the total Backup Special Tax for Facilities anticipated to apply to the changed or
modified Final Map area prior to the change or modification.
2. The result of paragraph 1 above shall be divided by the Acreage of Developed Property
classified or to be classified as Residential Property which is ultimately expected to exist in
such changed or modified Final Map area, as reasonably determined by the City.
The result of paragraph 2 above shall be divided by 43,560. The result is the Backup Special
Tax for Facilities per square foot of Acreage which shall be applicable to Assessor's
Parcels of Developed Property classified as Residential Property in such changed or
modified Final Map area for all remaining Fiscal Years in which the Special Tax for
Facilities may be levied.
SECTION F
METHOD OF APPORTIONMENT OF THE SPECIAL TAX
FOR FACILITIES AND THE SPECIAL TAX FOR SERVICES
FOR ZONES 1, 2, 3, AND 4
Commencing Fiscal Year 2006 -2007 and for each subsequent Fiscal Year, the City Council
shall levy a Special Tax for Facilities on all Taxable Property within Zones 1, 2, 3, and 4
until the total amount of Special Tax for Facilities equals the Special Tax Requirement for
Facilities in accordance with the following steps:
Step One: The Special Tax for Facilities shall be levied Proportionately on each
Assessor's Parcel of Developed Property within Zones 1, 2, 3, and 4 at
up to 100% of the applicable Assigned Special Tax for Facilities as
presented in Tables 1, 2, 3, and 4 as needed to satisfy the Special Tax
Requirement for Facilities.
Step Two: If additional moneys are needed to satisfy the Special Tax
Requirement for Facilities after the first step has been completed, the
Special Tax for Facilities shall be levied Proportionately on each
Assessor's Parcel of Final Map Property within Zones 1, 2, 3, and 4 at
up to 100% of the Assigned Special Tax for Facilities applicable to
City of Moorpark
Community Facilities District No. 2004 -1
September 7, 2005
Page 10
000063
each such Assessor's Parcel as needed to satisfy the Special Tax
Requirement for Facilities.
Step Three: If additional moneys are needed to satisfy the Special Tax
Requirement for Facilities after the first two steps have been
completed, the Special Tax for Facilities shall be levied Proportionately
on each Assessor's Parcel of Undeveloped Property within Zones 1, 2,
3, and 4, excluding any Undeveloped Property pursuant to Section J, at
up to 100% of the Assigned Special Tax for Facilities applicable to
each such Assessor's Parcel as needed to satisfy the Special Tax
Requirement for Facilities.
Step Four: If additional moneys are needed to satisfy the Special Tax
Requirement for Facilities after the first three steps have been
completed, then for each Assessor's Parcel of Developed Property
within Zones 1, 2, 3, and 4 whose Maximum Special Tax for Facilities
is the Backup Special Tax for Facilities shall be increased
Proportionately from the Assigned Special Tax for Facilities up to
100% of the Backup Special Tax for Facilities as needed to satisfy the
Special Tax Requirement for Facilities.
Step Five: If additional moneys are needed to satisfy the Special Tax
Requirement for Facilities after the first four steps have been
completed, the Special Tax shall be levied Proportionately on each
Assessor's Parcel of Undeveloped Property within Zones 1, 2, 3, and 4
classified as Undeveloped Property pursuant to Section J at up to 100%
of the Assigned Special Tax for Facilities applicable to each such
Assessor's Parcel as needed to satisfy the Special Tax Requirement for
Facilities.
Notwithstanding the above, under no circumstances will the Special Taxes for Facilities levied
against any Assessor's Parcel of Residential Property for which an occupancy permit for private
residential use has been issued be increased by more than ten percent (10 %) per Fiscal Year as a
consequence of delinquency or default by the owner of any other Assessor's Parcel within CFD No.
2004 -1.
2. Commencing Fiscal Year 2006 -2007 and for each subsequent Fiscal Year, the City Council
shall levy a Special Tax for Services on all Developed Property within CFD No. 2004 -1
until the total amount of Special Tax for Services equals the Special Tax Requirement for
Services as follows:
The Maximum Special Tax for Services shall be levied Proportionately on each Assessor's
Parcel of Developed Property at up to 100% of the applicable Maximum Special Tax for
Services as needed to satisfy the Special Tax Requirement for Services.
City of Moorpark
Community Facilities District No. 2004 -1
September 7, 2005
Page 11
000064
SECTION G
PREPAYMENT OF SPECIAL TAX FOR FACILITIES
The following definitions apply to this Section G:
"CFD Public Facilities" means $43,750,000 expressed in 2005 dollars, which shall increase by the
Construction Inflation Index on January 1, 2006, and on each January 1 thereafter, or such lower
number as (i) shall be determined by the City as sufficient to provide the public facilities under the
authorized bonding program for CFD No. 2004 -1, or (ii) shall be determined by the City Council
concurrently with a covenant that it will not issue any more Bonds to be supported by Special Taxes
levied under this Rate and Method of Apportionment.
"Construction Fund" means an account specifically identified in the Indenture or functionally
equivalent to hold funds which are currently available for expenditure to acquire or construct public
facilities eligible under CFD No. 2004 -1.
"Construction Inflation Index" means the annual percentage change in the Engineering News -
Record Building Cost Index for the City of Los Angeles, measured as of the Calendar Year which
ends in the previous Fiscal Year. In the event this index ceases to be published, the Construction
Inflation Index shall be another index as determined by the City that is reasonably comparable to the
Engineering News - Record Building Cost Index for the City of Los Angeles.
"Future Facilities Costs" means the CFD Public Facilities minus public facility costs available to
be funded through existing construction or escrow accounts or funded by the Outstanding Bonds,
and minus public facility costs funded by interest earnings on the Construction Fund actually earned
prior to the date of prepayment.
"Outstanding Bonds" means all previously issued bonds issued and secured by the levy of Special
Tax which will remain outstanding after the first interest and/or principal payment date following the
current Fiscal Year, excluding bonds to be redeemed at a later date with the proceeds of prior
prepayments of the Maximum Special Tax.
The Special Tax for Facilities obligation of an Assessor's Parcel of Developed Property, an
Assessor's Parcel of Final Map Property or Undeveloped Property for which a Building Permit has
been issued or an Assessor's Parcel of Undeveloped Property that is classified as Undeveloped
Property pursuant to Section J. may be prepaid in full, provided that there are no delinquent Special
Taxes, penalties, or interest charges outstanding with respect to such Assessor's Parcel at the time
the Special Tax obligation would be prepaid. The Prepayment Amount for an Assessor's Parcel
eligible for prepayment shall be determined as described below.
An owner of an Assessor's Parcel intending to prepay the Special Tax for Facilities obligation shall
provide the City with written notice of intent to prepay, and within 5 days of receipt of such notice,
the City shall notify such owner of the amount of the non - refundable deposit determined to cover the
cost to be incurred by CFD No. 2004 -1 in calculating the proper amount of a prepayment. Within 15
City of Moorpark September 7, 2005
Community Facilities District No. 2004 -1 Page 12
000065
days of receipt of such non - refundable deposit, the City shall notify such owner of the prepayment
amount of such Assessor's Parcel.
The Prepayment Amount for each applicable Assessor's Parcel shall be calculated according to the
following formula (capitalized terms defined below):
Bond Redemption Amount
plus
Redemption Premium
plus
Future Facilities Amount
plus
Defeasance
plus
Administrative Fee
less
Reserve Fund Credit
equals Prepayment Amount
As of the date of prepayment, the Prepayment Amount shall be calculated as follows:
For Assessor's Parcels of Developed Property, compute the Assigned Special Taxes
and the Backup Special Taxes applicable to the Assessor's Parcel. For Assessor's
Parcels of Final Map Property or Undeveloped Property, excluding any Undeveloped
Property pursuant to Section J., compute the Assigned Special Tax and the Backup
Special Tax applicable to the Assessor's Parcel as though it was already designated
as Developed Property based upon the Building Permit issued or to be issued for that
Assessor's Parcel. For Assessor's Parcels classified as Undeveloped Property
pursuant to Section J., compute the Assigned Special Tax.
2. For each Assessor's Parcel of Developed Property, Final Map Property or
Undeveloped Property to be prepaid, (a) divide the Assigned Special Tax computed
pursuant to paragraph 1 for such Assessor's Parcel by the sum of the estimated
Assigned Special Tax applicable to all Assessor's Parcels of Taxable Property at
build out, as reasonably determined by the City, and (b) divide the Backup Special
Tax computed pursuant to paragraph 1 for such Assessor's Parcel by the sum of the
estimated Backup Special Tax applicable to all Assessor's Parcels of Taxable
Property at build out, as reasonably determined by the City.
Multiply the larger quotient computed pursuant to paragraph 2(a) or 2(b) by
Outstanding Bonds. The product shall be the "Bond Redemption Amount ".
4. Multiply the Bond Redemption Amount by the applicable redemption premium, if
any, on the Outstanding Bonds to be redeemed with the proceeds of the Bond
Redemption Amount. This product is the "Redemption Premium."
Compute the Future Facilities Cost.
City of Moorpark
Community Facilities District No. 2004 -1
September 7, 2005
Page 13
000066
6. Multiply the larger quotient computed pursuant to paragraph 2 (a) or 2 (b) by the
amount determined pursuant to paragraph 5. to determine the Future Facilities Cost
to be prepaid (the "Future Facilities Amount ").
7. Compute the amount needed to pay interest on the Bond Redemption Amount, the
Redemption Premium, and the Reserve Fund Credit (see step 11) to be redeemed
with the proceeds of the Prepayment Amount until the earliest call date for the
Outstanding Bonds.
Estimate the amount of interest earnings to be derived from the reinvestment of the
Bond Redemption Amount plus the Redemption Premium until the earliest call date
for the Outstanding Bonds.
9. Subtract the amount computed pursuant to paragraph 8 from the amount computed
pursuant to paragraph 7. This difference is the "Defeasance."
10. Estimate the administrative fees and expenses associated with the prepayment,
including the costs of computation of the Prepayment Amount, the costs of
redeeming Bonds, and the costs of recording any notices to evidence the prepayment
and the redemption. This amount is the "Administrative Fee."
11. Calculate the "Reserve Fund Credit" as the lesser of. (a) the expected reduction in
the applicable reserve requirements, if any, associated with the redemption of
Outstanding Bonds as a result of the prepayment, or (b) the amount derived by
subtracting the new reserve requirements in effect after the redemption of
Outstanding Bonds as a result of the prepayment from the balance in the applicable
reserve funds on the prepayment date. Notwithstanding the foregoing, if the reserve
fund requirement is satisfied by a surety bond or other instrument at the time of the
prepayment, then no Reserve Fund Credit shall be given. Notwithstanding the
foregoing, the Reserve Fund Credit shall in no event be less than $0.
12. The Prepayment Amount is equal to the sum of the Bond Redemption Amount, the
Redemption Premium, the Future Facilities Amount, the Defeasance, and the
Administrative Fee, less the Reserve Fund Credit.
With respect to the Special Tax for Facilities obligation that is prepaid pursuant to this Section G,
the City Council shall indicate in the records of CFD No. 2004 -1 that there has been a prepayment of
the Special Tax for Facilities obligation and shall cause a suitable notice to be recorded in
compliance with the Act within thirty (30) days of receipt of such prepayment to indicate the
prepayment of the Special Tax for Facilities obligation and the release of the Special Tax for
Facilities lien on such Assessor's Parcel, and the obligation of such Assessor's Parcel to pay such
Special Taxes for Facilities shall cease.
Notwithstanding the foregoing, no prepayment will be allowed unless the amount of Special Tax for
Facilities that may be levied on Taxable Property, net of Administrative Expenses, shall be at least
City of Moorpark
Community Facilities District No. 2004 -1
September 7, 2005
Page 14
000067
1.1 times the regularly scheduled annual interest and principal payments on all currently Outstanding
Bonds in each future Fiscal Year.
SECTION H
PARTIAL PREPAYMENT OF SPECIAL TAX FOR FACILITIES
The Special Tax for Facilities obligation of an Assessor's Parcel of Developed Property or an
Assessor's Parcel of Undeveloped Property for which a building permit has been issued and will be
classified as Developed Property in the next Fiscal Year, as calculated in this Section H. below, may
be partially prepaid, provided that there are no delinquent Special Taxes, penalties, or interest
charges outstanding with respect to such Assessor's Parcel at the time the Special Tax for Facilities
obligation would be prepaid.
The Partial Prepayment Amount shall be calculated according to the following formula:
PP =PGxF
The terms above have the following meanings:
PP = the Partial Prepayment Amount.
PG = the Prepayment Amount calculated according to Section G.
F = the percent by which the owner of the Assessor's Parcel is partially
prepaying the Special Tax obligation.
With respect to any Assessor's Parcel that is partially prepaid, the City Council shall indicate in the
records of CFD No. 2004 -1 that there has been a partial prepayment of the Special Tax for Facilities
obligation and shall cause a suitable notice to be recorded in compliance with the Act within thirty
(30) days of receipt of such partial prepayment of the Special Tax for Facilities obligation, to
indicate the partial prepayment of the Special Tax for Facilities obligation and the partial release of
the Special Tax for Facilities lien on such Assessor's Parcel, and the obligation of such Assessor's
Parcel to pay such prepaid portion of the Special Tax for Facilities for shall cease.
Notwithstanding the foregoing, no partial prepayment will be allowed unless the amount of Special
Tax for Facilities that may be levied on Taxable Property after such partial prepayment, net of
Administrative Expenses, shall be at least 1.1 times the regularly scheduled annual interest and
principal payments on all currently Outstanding Bonds in each future Fiscal Year.
SECTION I
TERMINATION OF SPECIAL TAX
For each Fiscal Year that any Bonds are outstanding the Special Tax for Facilities shall be levied on
all Assessor's Parcels within Zones 1, 2, 3, and 4 subject to the Special Tax for Facilities. If any
delinquent Special Tax for Facilities remain uncollected prior to or after all Bonds are retired, the
Special Tax for Facilities may be levied to the extent necessary to reimburse CFD No. 2004 -1 for
uncollected Special Tax for Facilities associated with the levy of such Special Taxes for Facilities,
but not later than the 2044 -45 Fiscal Year.
City of Moorpark September 7, 2005
Community Facilities District No. 2004 -1 Page 15
000068
The Special Tax for Services shall be levied for as long as the Special Tax for Services is needed to
meet the Special Tax Requirement for Services as determined at the sole discretion of the City
Council.
SECTION J
EXEMPTIONS
The City shall classify as Exempt Property (i) Assessor's Parcels owned by the State of California,
Federal or other local governments, (ii) Assessor's Parcels which are used as places of worship and
are exempt from ad valorem property taxes because they are owned by a religious organization, (iii)
Assessor's Parcels used exclusively by a homeowners' association, or (iv) Assessor's Parcels with
public or utility easements making impractical their utilization for other than the purposes set forth
in the easement, provided that no such classification would reduce the sum of all Taxable Property to
(a) less than 9.86 Acres for Tax Zone 1, (b) less than 2.47 Acres for Tax Zone 2, (c) less than 67.20
Acres for Tax Zone 3, or (d) less than 24.12 Acres for Tax Zone 4. Notwithstanding the above, the
City Council shall not classify an Assessor's Parcel as Exempt Property if such classification would
reduce the sum of all Taxable Property to (a) less than 9.86 Acres for Tax Zone 1, (b) less than 2.47
Acres for Tax Zone 2, (c) less than 67.20 Acres for Tax Zone 3, or (d) less than 24.12 Acres for Tax
Zone 4. Assessor's Parcels which cannot be classified as Exempt Property because such
classification would reduce the Acreage of all Taxable Property to less than (a) less than 9.86 Acres
for Tax Zone 1, (b) less than 2.47 Acres for Tax Zone 2, (c) less than 67.20 Acres for Tax Zone 3, or
(d) less than 24.12 Acres for Tax Zone 4 will continue to be classified as Undeveloped Property, and
will continue to be subject to Special Taxes accordingly. All Affordable Units shall be exempt from
the Special Tax.
SECTION K
APPEALS
Any property owner claiming that the amount or application of the Special Tax is not correct may
file a written notice of appeal with the City Council not later than twelve months after having paid
the first installment of the Special Tax that is disputed. A representative(s) of CFD No. 2004 -1 shall
promptly review the appeal, and if necessary, meet with the property owner, consider written and
oral evidence regarding the amount of the Special Tax, and rule on the appeal. If the representative's
decision requires that the Special Tax for an Assessor's Parcel be modified or changed in favor of
the property owner, a cash refund shall not be made (except for the last year of levy), but an
adjustment shall be made to the Special Tax on that Assessor's Parcel in the subsequent Fiscal
Year(s).
SECTION L
MANNER OF COLLECTION
The Annual Special Tax shall be collected in the same manner and at the same time as ordinary ad
valorem property taxes, provided, however, that CFD No. 2004 -1 may collect the Special Tax at a
different time or in a different manner if necessary to meet its financial obligations.
City of Moorpark September 7, 2005
Community Facilities District No. 2004 -1 Page 16
000069
Exhibit C
Boundary Map
September 7, 2005 Page C- 1 Community Facilities District No. 2004 -1
(Moorpark Highlands)
City of Moorpark
0000'70
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PROPOSED BOUNDARY MAP OF THE
CITY OF MOORPARK COMMUNITY FACILITIES DISTRICT NO. 2004 -1
( MOORPARK HIGHLANDS)
COUNTY OF VENTURA, STATE OF CALIFORNIA
HWY DEDICATION
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FILED IN THE OFFICE OF THE CITY CLERK OF THE
CITY OF MOORPARK THIS - -- DAY OF
2004.
CITY CLERK
I HEREBY CERTIFY THAT THE WITHIN YAP SHOWING
BOUNDARIES OF THE CITY OF MOORPARK
COMMUNITY FACILITIES DISTRICT NO 2004 -1
(MOORPARK HIGHLANDS), COUNTY OF VENTURA,
STATE OF CALIFORNIA, WAS APPROVED BY THE
CITY COUNCIL OF THE CITY OF MOORPARK AT A
REGULARLY SCHEDULED MEETING THEREOF, HELD
ON THE — DAY OF — 2004 BY ITS
RESOLUTION NOS.
------ - - - - --
CITY CLERK
THE BOUNDARIES OF THE DISTRICT INCLUDE
ASSESOR PARCEL NUMBERS:
500 -0 -160 -545, -555, & -705;
500 -0- 270 -076, -196, & -206;
500 -0- 240 -036.
SECTION 33, TOWNSHIP 3 NORTH, & SECTION 4,
TOWNSHIP 2 NORM RANGE 19 WEST
FILED THIS -- DAY OF - - - - - -, 2004, AT THE
HOUR OF _ O'CLOCK - -M IN BOOK _ OF
MAPS OF ASSESSMENT AND COMMUNITY
FACILITIES DISTRICTS AT PACE ___, AND AS
INSTRUMENT NO. IN THE OFFICE
OF THE COUNTY RECORDER, IN THE COUNTY OF
VENTURA. STATE OF CALIFORNIA.
COUNTY RECORDER, COUNTY OF VENTURA
0
C)
O
RESOLUTION NO. 2005-
A RESOLUTION 'OF THE CITY COUNCIL OF THE CITY
OF MOORPARK, CALIFORNIA, DEEMING IT
NECESSARY TO INCUR BONDED INDEBTEDNESS IN
COMMUNITY FACILITIES DISTRICT NO. 2004 -1
(MOORPARK HIGHLANDS)
WHEREAS, on September 15, 2004, this Council adopted
Resolution No. 2004 -2239 (the "Resolution of Intention ") with
respect to Community Facilities District No. 2004 -1 (Moorpark
Highlands) (the "CFD ") of the City pursuant to the Mello -Roos
Community Facilities Act of 1982, as amended, Chapter 2.5 of
Part 1 of Division 2 of Title 5, commencing with Section 53311,
of the California Government Code (the "Act "); and
WHEREAS, this Council has also adopted Resolution No. 2004-
2240 (the "Resolution Determining Necessity "), determining the
necessity to incur bonded indebtedness in the maximum aggregate
principal amount of $43,750,000 upon the security of the special
tax to be levied within the CFD pursuant to the Act; and stating
its intention to incur bonded indebtedness within the boundaries
of the CFD for the purpose of financing the costs of certain
facilities and services specified in the Resolution of Intention;
and
WHEREAS, this Council has held a noticed public hearing as
required by the Act about the determination to proceed with the
formation of the CFD, the provision of certain defined facilities
(the "Facilities ") and services (the "Services ") by the CFD and
the rate and method of apportionment of the special tax to be
levied within the CFD to pay the principal and interest on the
proposed bonded indebtedness in the CFD and the administrative
costs of the City relative to the CFD; and
WHEREAS, subsequent to the public hearing, this Council
adopted on September 21, 2005 Resolution No. 2005- the
"Resolution of Formation "; and
WHEREAS, this Council has also held a noticed public hearing
as required by the Act relative to the matters material to the
questions set forth in the Resolution of Intention to Incur
Indebtedness; and
WHEREAS, No written protests with respect to the matters
Attachment 3
0000'72
Resolution No. 2005 -
Page 2
material to the questions set forth in the Resolution of
Intention to Incur Indebtedness have been filed with the City
Clerk.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK
DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. Recitals. The foregoing recitals are true
and correct.
SECTION 2. Necessity. This Council deems it necessary
to incur bonded indebtedness in the maximum aggregate principal
amount of $43,750,000 within the boundaries of the CFD for the
purpose of financing the costs of the Facilities, as provided in
the Resolution of Intention and the Resolution of Formation
including, but not limited to, the costs of issuing and selling
bonds to finance the Facilities and the costs of the City in
establishing and administering the CFD.
SECTION 3. Entire CFD Liable. The whole of the CFD
shall pay for the bonded indebtedness through the levy of the
special tax. The tax is to be apportioned in accordance with the
formula set forth in Exhibit "B" to the Resolution of Formation.
SECTION 4. Bonds. Bonds in the maximum amount of
$43,750,000 are hereby authorized subject to voter approval. The
bonds may be issued in such series and may mature and bear
interest at such rate or rates, payable semiannually or in such
other manner, all as this Council or its designee shall
determine, at the time or times of sale of such bonds; provided,
however, that the interest rate or rates shall not exceed the
maximum interest rate permitted by applicable law at the time of
sale of the bonds and the bonds or any series thereof shall have
a maximum term of not to exceed 40 years. It is the intention of
this City Council that any bonds issued may be made callable on
terms to be specified in any resolution providing for the form,
execution and issuance of bonds, in accordance with the terms of
the Act. The maximum rate of interest shall be determined by
competitive sale or by negotiation at the time of bond sale, but
in any case shall not exceed the legal rate as specified, from
time to time, by Government Code Section 53531 or any similar
controlling provision of law.
SECTION 5. Election. The proposition of incurring the
bonded indebtedness herein authorized shall be submitted to the
qualified electors of the CFD and shall be consolidated with
elections on the proposition of levying special taxes within the
000073
Resolution No. 2005 -
Page 3
CFD and the establishment of an appropriations limit for the CFD
pursuant to Section 53353.5 of the Act. The time, place and
further particulars and conditions of such election shall be as
specified by separate resolution of this Council. The City Clerk
is hereby designated as the official to conduct the special,
mailed - ballot election pursuant to the Act. The special CFD
election shall be conducted by mailed ballot. In order to be
counted, ballots must be returned to, and be physically received
by, the City Clerk before the end of the public hearing on
formation of the CFD. If all authorized ballots are received by
the City Clerk prior to that time, the City Clerk shall, pursuant
to Government Code section 53326(d), immediately close the
election and declare the results.
SECTION 6. Certification. The City Clerk shall certify
to the adoption of this resolution and cause a certified
resolution to be filed in the book of original resolutions.
PASSED AND ADOPTED this 21st day of September, 2005.
Patrick Hunter, Mayor
ATTEST:
Deborah S. Traffenstedt, City Clerk
000074
RESOLUTION NO. 2005-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF MOORPARK, CALIFORNIA, CALLING SPECIAL
ELECTION IN COMMUNITY FACILITIES DISTRICT
NO. 2004 -1 ( MOORPARK HIGHLANDS)
WHEREAS, on September 21, 2005 this Council adopted
Resolution No. 2005- (the "Resolution of Formation ")
ordering the formation of the City's Community Facilities
District No. 2004 -1 ( MOORPARK HIGHLANDS) (the "CFD "), authorizing
the levy of a special tax on property within the CFD and
preliminarily establishing an appropriations limit for the CFD,
all pursuant to the Mello -Roos Community Facilities Act of 1982,
Chapter 2.5 of Part 1 of Division 2 of Title 5, commencing with
Section 53311, of the California Government Code (the "Act ") for
the purpose of providing certain facilities (the "Facilities ")
and services (the "Services ") shown in such resolution; and
WHEREAS, this Council has also adopted Resolution No. 2005 -
the "Resolution Determining Necessity ", determining the
necessity to incur bonded indebtedness in the maximum aggregate
principal amount of $43,750,000 upon the security of the special
tax to be levied within the CFD pursuant to the Act; and
WHEREAS, pursuant to the provisions of the Resolution of
Formation and the Resolution Determining Necessity, the
propositions of the levy of the special tax, the establishment of
the appropriations limit, and the incurring of the bonded
indebtedness shall be submitted to the qualified electors of the
CFD as required by the provisions of the Act.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK
DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. Issues Submitted. Pursuant to Sections
53326, 53351 and 53325.7 of the Act, the issues of the levy of
the special tax, the incurring of bonded indebtedness, and the
establishment of the appropriations limit shall be submitted to
the qualified electors (as defined below) of the CFD at an
election called therefore as provided below.
SECTION 2. Qualified Electors. This Council hereby
finds that fewer than 12 persons have been registered to vote
Attachment 4
000075
Resolution No. 2005 -
Page 2
within the territory of the CFD for each of the 90 days preceding
the close of the public hearings heretofore conducted and
concluded by this Council for the purposes of these proceedings.
Accordingly, and pursuant to Section 53326 of the Act, this
Council finds that, for these proceedings, the qualified electors
are the landowners within the CFD and that the vote shall be by
such landowners or their authorized representatives, each having
one vote for each acre or portion thereof such landowner owns in
the CFD as of the close of the public hearings.
SECTION 3. Conduct of Election. This Council hereby
calls a special election to consider the measures described in
Section 1 above, which election shall be held on September 21,
2005, and the results thereof canvassed at the meeting of this
Council on September 21, 2005. The City Clerk is hereby
designated as the official to conduct the election and to receive
all ballots until 7:00 p.m. on the election date. It is hereby
acknowledged that the City Clerk has on file the Resolution of
Formation, a certified map of the boundaries of the CFD, and a
sufficient description to allow the City Clerk to determine the
electors of the CFD. Pursuant to Section 53327 of the Act, the
election shall be conducted by messenger or mail - delivered ballot
pursuant to Section 4000 of the California Elections Code. This
Council hereby finds that paragraphs (a), (b), (c) (1) and (c)(3)
of Section 4000 are applicable to this special election.
SECTION 4. Ballot. As authorized by Section 53353.5 of
the Act, the three propositions described in section 1 above
shall be combined into a single ballot measure, the form of which
is attached hereto as Exhibit "A" and by this reference
incorporated herein and the form of ballot is hereby approved.
The City Clerk is hereby authorized and directed to cause a
ballot, in substantially the form of Exhibit "A," to be delivered
to each of the qualified electors of the CFD. Each ballot shall
indicate the number of votes to be voted by the respective
landowner to which the ballot pertains. Each ballot shall be
accompanied by all supplies and written instructions necessary
for the use and return of the ballot. The envelope to be used to
return the ballot shall be enclosed with the ballot, have the
return postage prepaid, and contain the following: (a) the name
and address of the landowner, (b) a declaration, under penalty of
perjury, stating that the voter is the owner of record or
authorized representative of the landowner entitled to vote and
is the person whose name appears on the envelope, (c) the printed
name, signature and address of the voter, (d) the date of signing
and place of execution of the declaration pursuant to clause (b)
above, and (e) a notice that the envelope contains an official
0000'76
Resolution No. 2005 -
Page 3
ballot and is to be opened only by the canvassing board of the
election.
SECTION 5. Waivers. This Council hereby further finds
that the provisions of Section 53326 of the Act requiring a
minimum of 90 days following the adoption of the Resolution of
Formation to elapse before the special election are for the
protection of the qualified electors of the CFD. There is on
file with the City Clerk a written waiver executed by all of the
qualified electors of the CFD allowing for a shortening of the
time for the special election to expedite the process of
formation of the CFD and waiving any requirement for notice,
analysis and arguments in connection with the election.
Accordingly, this Council finds and determines that the qualified
electors have been fully apprised of and have agreed to the
shortened time for the election and waiver of analysis and
arguments, and have thereby been fully protected in these
proceedings. This Council also finds and determines that the
City Clerk has concurred in the shortened time for the election.
Analysis and arguments with respect to the ballot measures are
hereby waived, as provided in Section 53327 of the Act
SECTION 6. Accountability. Under Sections 50075.1 and
53410 of the Government Code, the following accountability
measures shall apply to the special taxes and /or any bonds: (a)
the construction and /or acquisition of the Facilities, the
providing of the Services, and the incidental costs thereof
including any bonds, all as defined in the Resolution of
Formation shall constitute the specific single purpose; (b) the
proceeds shall be applied only to the specific purposes
identified in (a) above; (c) there shall be created special
account(s) or funds(s) into which the proceeds shall be
deposited; and (d) there shall be caused to be prepared an annual
report as required by Section 50075.3 or 53411 of the Government
Code.
SECTION 7. Certification. The City Clerk shall certify
to the adoption of this resolution and cause a certified
resolution to be filed in the book of original resolutions.
000077
Resolution No. 2005 -
Page 4
PASSED AND ADOPTED this 21St day of September, 2005.
Patrick Hunter, Mayor
ATTEST:
Deborah S. Traffenstedt, City Clerk
Attachments: Exhibit "A" - Form of Ballot
090078
EXHIBIT A
COMMUNITY FACILITIES DISTRICT NO. 2004 -1
(Moorpark Highlands)
CITY OF MOORPARK, VENTURA COUNTY, CALIFORNIA
SPECIAL ELECTION BALLOT
(Mailed- Ballot Election)
Number of Votes:
Property Owner:
According to the provisions of the Mello -Roos Community Facilities Act of 1982,
and the resolutions of the City Council of the City of Moorpark, the above -named
landowner is entitled to cast the number votes specified above on this ballot. In
order to be counted, this ballot must be certified below and be returned, either by
mail or in person, before the end of the public hearing on September 21, 2005, to:
Deborah S. Traffenstedt, City Clerk
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Mailing by that date will not be sufficient. The ballot must be physically
received by the City Clerk prior to the deadline in order to be counted.
AN "X" OR OTHER MARK WILL CAST ALL VOTES ASSIGNED TO THIS BALLOT, OR THE VOTER
MAY WRITE NUMBERS IN THE SPACES PROVIDED.
BALLOT MEASURE
Shall the City Council of the City of Number of votes
Moorpark be authorized to issue up to YES
$43,750,000 in bonds, levy a special tax,
and finance public facilities by and
through its Community Facilities District
No. 2004 -1 (Moorpark Highlands), all as Number of votes
specified in its Resolution Nos. 2004- NO
2239 and 2004 -2340, and shall the
appropriations limit for the District for
fiscal year 2004 -2005 be established at
$43,750,000?
Certification
The undersigned is the authorized representative of the above -named landowner
and is the person legally authorized and entitled to cast this ballot on behalf of the
above -named landowner.
signature
print name
print title
0000'79
RESOLUTION NO. 2005-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF MOORPARK, CALIFORNIA, DECLARING ELECTION
RESULTS OF COMMUNITY FACILITIES DISTRICT NO.
2004 -1 (MOORPARK HIGHLANDS)
WHEREAS, on September 21, 2005 this Council adopted
Resolution No. 2005- , ordering the formation of the City's
Community Facilities District No. 2004 -1 (Moorpark Highlands)
(the "CFD "), authorizing the levy of a special tax on property
within the CFD and preliminarily establishing an appropriations
limit for the CFD, all pursuant to the Mello -Roos Community
Facilities Act of 1982, Chapter 2.5 of Part 1 of Division 2 of
Title 5, commencing with Section 53311, of the California
Government Code (the "Act "); and
WHEREAS, this Council has also adopted Resolution No. 2005 -
(the "'Resolution Determining Necessity "), determining the
necessity to incur bonded indebtedness in the maximum aggregate
principal amount of $43,750,000 upon the security of the special
tax to be levied within the CFD pursuant to the Act; and stating
its intention to incur bonded indebtedness within the boundaries
of the CFD for the purpose of financing the costs of certain
facilities and services specified in the Resolution of Intention;
and
WHEREAS, under the provisions of the Resolution of Formation
and the Resolution Determining Necessity, and pursuant to
Resolution No. 2005- the "Election Resolution ", heretofore
adopted by this Council, the propositions of the levy of the
special tax, the establishment of the appropriations limit and
the incurring of the bonded indebtedness were submitted to the
qualified electors of the CFD as required by the provisions of
the Act; and
WHEREAS, pursuant to the terms of the Election Resolution,
which are by this reference incorporated herein, the special
election has been held and the City Clerk has on file a Canvass
and Statement of Results of Election (the "Canvass "), a copy of
which is attached hereto as Exhibit A; and
WHEREAS, this Council has reviewed the Canvass, finds it
appropriate and wishes to complete its proceedings for the CFD.
Attachment 5
Ii l:l
Resolution No. 2005 -
Page 2
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK
DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. Recitals. The foregoing recitals are all
true and correct.
SECTION 2. Issues Presented. The issues presented at
the special election were the levy of a special tax within the
CFD, the incurring of a bonded indebtedness in the maximum
aggregate principal amount of $43,750,000, and the approval of an
annual appropriations limit of not to exceed $43,750,000 all
pursuant to the Resolution of Formation and the Resolution
Determining Necessity.
SECTION 3. Canvass and Issues Approved. The Council
hereby approves the Canvass and finds that it shall be a
permanent part of the record of its proceedings for the CFD.
Pursuant to the Canvass, the issues presented at the special
election were approved by the qualified electors of the CFD by
more than two - thirds of the votes cast at the special election.
SECTION 4. Proceedings Approved. Pursuant to the voter
approval, the CFD is hereby declared to be fully formed with the
authority to levy the special taxes, to incur the approved bonded
indebtedness and to have the established appropriations limit,
all as heretofore provided in these proceedings and in the Act.
It is hereby found that all prior proceedings and actions taken
by this Council with respect to the CFD were valid and in
conformity with the Act.
SECTION 5. Notice of Tax Lien. The City Clerk is hereby
directed to complete, execute, and cause to be recorded in the
office of the County Recorder of the County of Ventura a notice
of special tax lien in the form required by the Act, such
recording to occur no later than 15 days following adoption by
the Council of this resolution.
SECTION 6. Certification. The City Clerk shall certify
to the adoption of this resolution and cause a certified
resolution to be filed in the book of original resolutions.
000081-
Resolution No. 2005 -
Page 3
PASSED AND ADOPTED this 21St day of September, 2005.
Patrick Hunter, Mayor
ATTEST:
Deborah S. Traffenstedt, City Clerk
Attachments: Exhibit "A" - Certificate of City Clerk Canvass and
Statement of Results of Election
1111:
EXHIBIT A
CERTIFICATE OF CITY CLERK
CANVASS AND STATEMENT OF RESULTS OF ELECTION
CITY OF MOORPARK
COMMUNITY FACILITIES DISTRICT NO. 2004 -1
(MOORPARK HIGHLANDS)
VENTURA COUNTY, CALIFORNIA
I, Deborah S. Traffenstedt, City Clerk of the City of
Moorpark (the "City ") hereby certify:
I have personally received and assembled all ballots
eligible to be cast in the special mailed - ballot, landowner
election called by the City Council in its "RESOLUTION CALLING
SPECIAL ELECTION IN COMMUNITY FACILITIES DISTRICT NO. 2004 -1
(MOORPARK HIGHLANDS)" adopted September 21, 2005, and in
accordance with my instructions contained in that Resolution, I
hereby declare the election closed.
I personally, in the presence of the City Council, and
members of the pubic and City staff, counted the ballots and
certify the result of that count to be as follows:
TOTAL VOTES THAT COULD BE CAST
TOTAL VOTES CAST "YES"
TOTAL VOTES CAST "NO"
TOTAL VOTES CAST
THE VOTES CAST "YES" EQUAL % OF THE TOTAL VOTES CAST.
I make this Certification on September 21, 2005.
Deborah S. Traffenstedt, City Clerk
000083
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF MOORPARK, CALIFORNIA, LEVYING A SPECIAL
TAX WITHIN COMMUNITY FACILITIES DISTRICT NO.
2004 -1 (MOORPARK HIGHLANDS)
WHEREAS, on September 15, 2004, this Council adopted
Resolution No. 2004 -2239 (the "Resolution of Intention ") with
respect to Community Facilities District No. 2004 -1 (Moorpark
Highlands) (the "CFD ") of the City pursuant to the Mello -Roos
Community Facilities Act of 1982, as amended, Chapter 2.5 of Part
1 of Division 2 of Title 5, commencing with Section 53311, of the
California Government Code (the "Act ") , to finance the
acquisition of certain facilities (the "Facilities ") and the
providing of certain services (the "Services "); and
WHEREAS, notice was published as required by the Act
relative to the intention of the Council to form the CFD and to
provide for the Facilities and Services; and
WHEREAS, the Council has held a noticed public hearing as
required by the Act relative to the determination to proceed with
the formation of the CFD and the rate and method of apportionment
of the special tax to be levied within the CFD to finance the
costs of the Facilities and Services; and
WHEREAS, at said hearing all persons desiring to be heard on
all matters pertaining to the formation of the CFD and the levy
of said special taxes were heard, substantial evidence was
presented and considered by this Council and a full and fair
hearing was held; and
WHEREAS, subsequent to the hearing, this City Council
adopted Resolution No. 2005- (the "Resolution of Formation ")
Resolution No. 2005- (the "Resolution Determining Necessity ")
and Resolution No. 2005- (the "Election Resolution ") which
resolutions established the CFD, authorized the levy of a special
tax with the CFD, determined the necessity to incur bonded
indebtedness in the CFD and called an election within the CFD on
the propositions of incurring indebtedness, levying a special
tax, and establishing an appropriations limit within the CFD,
respectively; and
Attachment 6
000084
Ordinance No.
Page 2
WHEREAS, on September 21, 2005, a special election was held
within the CFD at which the eligible landowner- electors approved
such propositions by the two- thirds vote required by the Act;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK
DOES ORDAIN AS FOLLOWS:
SECTION 1. By the passage of this Ordinance the Council
hereby authorizes and levies special taxes within the CFD
pursuant to the Act, at the rate and in accordance with the
formula set forth in the Resolution of Formation, which
Resolution is by this reference incorporated herein. The special
taxes are hereby levied commencing in fiscal year 2005 -2006 and
in each fiscal year thereafter, all as contemplated by the
Resolution of Formation and the Resolution Determining Necessity.
SECTION 2. The City Manager of the City is hereby
authorized and directed each fiscal year to determine the
specific special tax rate and amount to be levied for the next
ensuing fiscal year for each parcel of real property within the
CFD, in the manner and as provided in the Resolution of
Formation.
SECTION 3. Properties or entities of the State, federal,
or local governments shall be exempt from any levy of the special
taxes. In no event shall the special taxes be levied on any
parcel within the CFD in excess of the maximum tax specified in
the Resolution of Formation.
SECTION 4. All of the collections of the special tax
shall be used as provided for in the Act and in the Resolution of
Formation including, but not limited to, the payment of principal
of and interest on the Bonds, the replenishment of the reserve
fund for the Bonds, the payment of the costs of the City in
administering the CFD, and the costs of collecting and
administering the special tax.
SECTION 5. The special taxes shall be collected either
by direct billing of the property owner or in the same manner as
ordinary ad valorem taxes are collected and, in either case,
shall have the same lien priority, and be subject to the same
penalties and the same procedure and sale in cases of delinquency
as provided for ad valorem taxes; provided, however, that the
Council may provide for other appropriate methods of collection
by resolutions of the Council. In addition, the provisions of
Section 53356.1 of the Act shall apply to delinquent special tax
payments.
SECTION 6. If any section, subsection, sentence, caluse,
phrase, part or portion of this Ordinance is for any reason held
to be invalid or unconstitutional by any court of competent
000085
Ordinance No.
Page 3
jurisdiction, such decision shall not affect the validity of the
remaining portions of this Ordinance. The City Council declares
that it would have adopted this Ordinance and each section,
subsection, sentence, clause, phrase, part or portion thereof,
irrespective of the fact that any one or more section,
subsections, sentences, clauses, phrases, parts or portions be
declared invalid or unconstitutional.
SECTION 7. This Ordinance shall become effective thirty
(30) days after its passage and adoption.
SECTION 8. The City Clerk shall certify to the passage
and adoption of this Ordinance; shall enter the same in the book
of original ordinances of said City; shall make a minute of the
passage and adoption thereof in the records of the proceedings of
the city Council at which the same is passed and adopted; and
shall, within fifteen (15) days after the passage and adoption
thereof, cause the same to be published once in the Moorpark Star
a newspaper of general circulation, as defined in Section 6008 of
the Government Code, for the City of Moorpark, and which is
hereby designated for that purpose.
PASSED AND ADOPTED this 21St day of September, 2005.
ATTEST:
Deborah S. Traffenstedt, City Clerk
Patrick Hunter, Mayor
000086
JOINT COMMUNITY FACILITIES AGREEMENT BETWEEN
CITY OF MOORPARK,
MOORPARK UNIFIED SCHOOL DISTRICT and PARDEE HOMES
THIS AGREEMENT is entered into as of the 13th day of September, 2005 by and
between the CITY OF MOORPARK, a municipal corporation (the "City "), MOORPARK
UNIFIED SCHOOL DISTRICT, a school district of the State of California (the "School
District "), and PARDEE HOMES, a California corporation (the "Developer ").
RECITALS
A. The Developer has requested that the City establish a community facilities district
(the "CFD ") pursuant to the Mello -Roos Community Facilities Act of 1982, Chapter 2.5
(commencing with Section 53311) of Part 1 of Division 2 of Title 5 of the Government Code
(the "Mello -Roos Act ") to include property in the City of Moorpark (the "Property ") for the
purpose of financing the design, construction and acquisition of certain parks and park and
recreation facilities, master plan water system and sewer system facilities, streets, bridge and
traffic related facilities and storm drainage facilities of the City (the "City Facilities ") and the
acquisition of land and construction, furnishing and equipping of public school facilities of the
School District (the "School Facilities ").
B. Pursuant to Sections 53316.2, 53316.4 and 53316.6 of the Government Code, (i)
a community facilities district may finance facilities to be owned or operated by an entity other
than the agency that created the community facilities district pursuant to a joint community
facilities agreement or a joint exercise of powers agreement adopted pursuant to that section; (ii)
a party to such an agreement may use the proceeds of any bonds or other indebtedness issued
pursuant to the Mello -Roos Act to provide facilities which that party is otherwise authorized by
law to provide even though another party to the agreement does not have the power to provide
those facilities; and (iii) no local agency, other than a City or County, which is a party to a joint
community facilities agreement shall have primary responsibility for formation of a community
facilities district unless it is reasonably expected to have responsibility for providing facilities to
be financed by a larger share of the proceeds of bonds and special taxes of the community
facilities district created pursuant to the agreement than any other local agency.
C. The purpose of this Agreement is to set forth the understandings of the
parties with respect to the establishment of the proposed CFD, if it is established, the
authorization of bonded indebtedness and the sale of bonds of the CFD and the allocation of the
proceeds of the sale of such bonds between the City and the School District for the design,
construction and/or acquisition of the City Facilities and the School Facilities.
D. The Developer and School District have entered into a School Facilities
Agreement dated April 27, 2004 (the "School Agreement ").
ATTACHMENT
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NOW, THEREFORE, in consideration of the preceding recitals and the mutual covenants
hereinafter contained, the parties agree as follows:
Section 1. Formation Proceedings. The City Council of the City shall
conduct proceedings pursuant to the Mello -Roos Act for the establishment of the proposed CFD
which shall be designated "City of Moorpark Community Facilities District No. 2004 -1
(Moorpark Highlands)." The City Council shall also conduct proceedings pursuant to the Mello -
Roos Act to authorize the CFD to incur bonded indebtedness for the purpose of financing the
City Facilities and the School Facilities. The City Council shall commence such proceedings as
soon as is reasonably possible and shall thereafter conduct and complete such proceedings in a
timely manner.
Section 2. Issuance of Bonds. Upon completion of the proceedings for the
establishment of the CFD and the authorization of bonded indebtedness, the City shall proceed to
issue and sell a series of bonds of the CFD for financing the design, construction and/or
acquisition of the City Facilities and School Facilities. The City shall proceed with the issuance
and sale of such bonds when it is determined, in the sole discretion of the City, that all of the
conditions which must be satisfied in connection with the issuance and sale of bonds of a
community facilities district such as the CFD, including the requirements of Section 53345.8 of
the Government Code, have been satisfied. In making such determination, the City shall be
guided by the advice of its bond counsel and financial advisor and the underwriter of the bonds.
Section 3. Allocation of Bond Proceeds. Upon the issuance and sale of the
bonds of the CFD, the fiscal agent agreement or bond indenture with respect to such bonds (the
"Indenture ") shall provide for the establishment of a separate fund from which funds may be
disbursed for City Facilities, School Facilities and other facilities eligible to be financed through
the CFD (the "Improvement Fund "). Funds shall be disbursed from the Improvement Fund to
finance School Facilities in accordance with this Section 3.
Upon City's receipt of a disbursement request in the form attached hereto as
Exhibit A -1 executed by the Developer and School District, the City shall authorize funds to be
disbursed from the Improvement Fund in the amount requested to an escrow account established
pursuant to a School Site Purchase Agreement entered into between School District and
Developer relating to a school site within the Property to be acquired by the School District (the
"School Site "). The amount disbursed from the Improvement Fund to the Escrow Account for
the School Site shall equal up to the full fair market value of the School Site. The Developer
shall not be entitled to credit against statutory school fees based upon the disbursement of funds
to acquire the School Site.
Upon City's receipt of a disbursement request in the form attached hereto as
Exhibit A -2 executed by the Developer and School District, the City shall authorize funds to be
disbursed from the Improvement Fund to the School District to finance School Facilities in
satisfaction of the Developer's, or its successor's or assign's, obligation to pay statutory school
fees to the School District in an amount equal to the amount disbursed pursuant to the
disbursement request. In the event the Developer, or its successor or assign, has advanced school
fees to the School District prior to any disbursement request (an "Advance "), School District
shall, upon receipt of funds pursuant to a disbursement request in the form attached hereto as
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- 2 - 000088
Exhibit A -2 in an amount equal to or exceeding the amount of the Advance, reimburse the
Advance to the Developer.
Section 4. School District's Disposition of School Site. School District
agrees that if it determines the School Site to be surplus property after it has been acquired and
sells the School Site while CFD bonds are outstanding, the School District shall repay to the
CFD solely from the proceeds of the sale of the School Site the lesser of (i) the amount disbursed
by the CFD to the School District for acquisition of the School Site and (ii) the principal amount
of the then outstanding Bonds attributable to such amount disbursed by the CFD to the School
District, plus accrued interest and applicable call premium. The CFD shall apply the amount
repaid to pay accrued interest, any applicable call premium and principal with respect to the
redemption of outstanding bonds of the CFD.
Section 5. Responsibility and Indemnification. The City shall have sole
responsibility for the design, construction and acquisition of the City Facilities and the School
District shall have sole responsibility for the design, construction and acquisition of the School
Facilities. The City agrees to indemnify and hold the School District harmless from any and all
liability of any nature whatsoever, including attorneys' fees and costs, with respect to the design,
construction and acquisition of the City Facilities. The School District agrees to indemnify and
hold the City harmless from any and all liability of any nature whatsoever, including attorneys'
fees and costs with respect to the design, construction and acquisition of the School Facilities.
Section 6. Amendment. This Agreement may be amended at any time by a
subsequent written agreement signed on behalf of both parties.
Section 7. Beneficiaries. No person or entity shall be deemed to be a third
party beneficiary hereof, and nothing in this Agreement (either express or implied) is intended to
confer on any person or entity other than the City, School District and Developer any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
Section 8. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original but all of which shall constitute but one agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year first above written.
ATTEST:
City Clerk
CITY OF MOORPARK
In
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- 3 - 010089
ATTEST:
Clerk of the Board of Education
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H &O: 418722 v6RVPUB\RTA \667151.1
MOORPARK UNIFIED SCHOOL DISTRICT
President of the Board of Education
PARDEE HOMES,
a California corporation
By:
Its:
By:
Its:
010090
EXHIBIT "A -1"
DISBURSEMENT REQUEST FORM
1. Community Facilities District No. 2004 -1 of the City of Moorpark
( "CFD ") is hereby requested to pay from the Improvement Fund established in connection with
its Series 200_ Special Tax Bonds (the "Bonds ") to [insert Escrow Company] the sum set forth
in 3 below for the acquisition of a school site.
2. The undersigned certifies that the amount requested is due and payable,
and has not formed the basis of prior request or payment.
3. Amount requested: $
4. Disburse amount requested to: [Insert name, address, escrow account no.
and wire transfer instructions for Escrow Company.]
5. The amount set forth in 3 above is authorized and payable pursuant to the
term of the Joint Community Facilities Agreement by and among the City, School District and
Pardee Homes dated as of (the "Agreement "). Capitalized terms not defined herein
shall have the meaning set forth in the Agreement.
PARDEE HOMES
By:
Name:
Title:
Date:
MOORPARK UNIFIED SCHOOL DISTRICT
Superintendent
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EXHIBIT "A -2"
DISBURSEMENT REQUEST FORM
1. Community Facilities District No. 2004 -1 of the City of Moorpark
( "CFD ") is hereby requested to pay from the Improvement Fund established in connection with
its Series 200_ Special Tax Bonds (the "Bonds ") to Moorpark Unified School District ( "School
District ") or such other party designated below, as Payee, the sum set forth in 3 below.
2. The School District certifies that the amount requested hereunder has
been, or will be expended or incurred for capital costs related to the construction and completion
of the School Facilities on or after . The amount requested is due and payable, and
has not formed the basis of prior request or payment.
3. Amount requested: $
4. Disburse amount requested to: [Insert name, address and wire transfer
instructions for Payee.]
5. The amount set forth in 3 above is authorized and payable pursuant to the
term of the Joint Community Facilities Agreement by and among the City, School District and
Pardee Homes dated as of (the "Agreement "). Capitalized terms not defined herein
shall have the meaning set forth in the Agreement.
MOORPARK UNIFIED SCHOOL DISTRICT
IM
Superintendent
PARDEE HOMES
By:
Name:
Title:
Date:
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A -1
0-10092