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HomeMy WebLinkAboutAGENDA REPORT 2005 0921 CC REG ITEM 08DITEM- ---- -- '--^ CITY OF MOORPARK, CALIFORNIA City Council Meeting of 9'a?/- og006, MOORPARK CITY COUNCIL ACTION:, , Atzyd ,r2tt�,�o11 AGENDA REPORT �-� °�•� �"- TO: Honorable City Council BY :AD05 -,,1M! '5 03- a39CT oi005- oZ38cJ, loos -a 3 90 Q,,,a FROM: Hugh R. Riley, Assistant City Manager 60+d. 5u .32z DATE: September 12, 2005 (CC Meeting of 9/21/05) aY= �' SUBJECT: Consider Formation of City of Moorpark Community Facilities District No. 2004 -2 (Moorpark Vistas) BACKGROUND On September 1, 2004, Suncal Properties submitted a petition to the City to initiate the process to form a Community Facilities District for the Moorpark Vistas project ( Suncal) (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, and to fund $259,000 for watershed 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 fee. This will provide sufficient funds to cover in -house staff and contracted service to provide the necessary financial, legal and administrative services. 000093 Honorable City Council September 21, 2005 Page 2 At its September 15, 2004 meeting, the City Council adopted Resolution No 2004 -2241 declaring its intention to establish Community Facilities District No. 2004 -2 and Resolution No. 2004- 2242 declaring its intention to incur bonded indebtedness for Community Facilities District No. 2004 -2. DISCUSSION In order to finalize the formation of Community Facilities District No. 2004 -2, the City Council is being asked to open the continued public hearing, conduct a special election (relative to the matter of levying the 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. ), will find that for purposes of this special election, that 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 of the City Council of the City of Moorpark, California, Approving a Funding, Construction, and Acquisition Agreement in Connection With Community Facilities District No. 2004 -2 (Moorpark Vistas)" This Resolution approves the agreement which sets out the terms and conditions of how bond proceeds will be dispersed to the developer for the construction of those improvements listed in the agreement. It also spells out that the developer has agreed that $259,000 will be Honorable City Council September 21, 2005 Page 3 disbursed to the City, out of bond proceeds to fund watershed protection and flood control studies and improvements at the City's sole discretion. 2 Resolution No. 2005- "A Resolution of Formation of Community Facilities District No. 2004 -2 and to Levy a Special Tax in Community Facilities District No. 2004 -2 (Moorpark Vistas)." (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 approved at the September 15, 2004 City Council meeting. The Special Tax levy will impose an annual tax on each of the properties within the Project that will range from $6,025 for a home of 3,401 square feet or less to $8,408 for a home with greater than 4,300 square feet. The Special Tax remains constant for the life of the CFD until the bonds are retired. The Special tax represents an average of approximately .670 of the total tax on the property with a maximum of 1.80 of initial value. Both Exhibits A and B can also be found in the Community Facilities District Report prepared by MuniFinancial, which is included as a separately bound part of your agenda package. 3. Resolution No. 2005- "A Resolution Deeming it Necessary to Incur Bonded Indebtedness in Community Facilities District No. 2004 -2 (Moorpark Vistas)." (Resolution Determining Necessity) This Resolution makes the determination to issue bonds to be financed with a portion of the special tax. The maximum aggregate principal amount of bonds that can be issued is set at $20,000,000. In addition, the Resolution calls for the CFD 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 -2 (Moorpark Vistas)." (Resolution Calling Election) 000095 Honorable City Council September 21, 2005 Page 4 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. Resolution No. 2005- "A Resolution Declaring Election Results of Community Facilities District No. 2004 -2 (Moorpark Vistas)." (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 -2 (Moorpark Vistas)." 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. STAFF RECObMNDATION (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; 00®0-96 Honorable City Council September 21, 2005 Page 5 2) Adopt Resolution No. 2005- (Resolution Approving a Funding, Construction, and Acquisition Agreement); 3) Adopt Resolution No. 2005- (Resolution of Formation); 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 No. 2005- f Formation of Community Facilities District and to Levy a Special Tax 3. Resolution No. 2005- Deeming it necessary to incur bonded indebtedness 4. Resolution 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 -2 7. MuniFinancial's Community Facilities District Report (separately bound report) 000097 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 -2 ( MOORPARK VISTAS) WHEREAS, the Council is conducting proceedings to form a community facilities district as described in Resolution No. 2004 -2241 with respect to Community Facilities District No. 2004- 2 (Moorpark Vistas) (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 RESOLVES 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 Moorpark 150, LLC, the form of which is attached hereto. 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 CIZ�1Z1 • 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 District. 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 1 # 11 • FUNDING AND ACQUISITION AGREEMENT by and between the CITY OF MOORPARK and MOORPARK 150, LLC Dated as of September 7, 2005 Relating to: City of Moorpark Community Facilities District No. 2004 -2 (Moorpark Vistas) EXHIBIT A .100TI 171, TABLE OF CONTENTS ARTICLE I DEFINITIONS Section1.01. Definitions .............................................................................................................. ..............................1 ARTICLE II RECITALS Section2.01. The CFD ................................................................................................................ ............................... 3 Section2.02. The Development .................................................................................................. ............................... 3 Section2.03. The Facilities ......................................................................................................... ............................... 3 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 ........................................................................................................ ............................... 4 Section3.03. Bonds ..................................................................................................................... ............................... 5 Section3.04. Bond Proceeds ...................................................................................................... ............................... 5 ARTICLE IV CONSTRUCTION OF FACILITIES Section4.01. Plans ...................................................................................................................... ............................... 5 Section 4.02. Duty of Developer to Construct .......................................................................... ............................... 6 Section 4.03. Relationship to Public Works; Bidding Requirements ..................................... ............................... 6 Section 4.04. Independent Contractor ...................................................................................... ............................... 7 Section 4.05. Performance and Payment Bonds ....................................................................... ............................... 7 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 ................................................................................................ ............................... 8 Section 5.04. Processing Payment Requests ............................................................................. ............................... 9 Section5.05. Payment ................................................................................................................ ............................... 9 Section 5.06. Restrictions on Payments .................................................................................... ............................... 9 Section 5.07. Defective or Nonconforming Work .................................................................... .............................11 Section 5.08. Modification or Designation of Discrete Components ...................................... .............................11 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 1/11/05 9058.41 H &O: #20904 v1 -i- 000101 Section 6.02. City Facilities to be Owned by the City — Title Evidence ................................. .............................12 Section 6.03. City Facilities Constructed on Private Lands .................................................... .............................12 Section 6.04. City Facilities Constructed on City Land .......................................................... .............................12 Section 6.05. Maintenance and Warranties ............................................................................. .............................12 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 ...................................................................................................... .............................14 Section9.03. Excess Costs .......................................................................................................... .............................15 Section9.04. Audit ...................................................................................................................... .............................15 Section9.05. Attorney's Fees ..................................................................................................... .............................15 Section9.06. Notices ................................................................................................................... .............................15 Section9.07. Severability ........................................................................................................... .............................15 Section 9.08. Successors and Assigns ........................................................................................ .............................15 Section10.08. Other Agreements .............................................................................................. .............................16 Section9.10. Waiver ................................................................................................................... .............................16 Section9.11. Merger .................................................................................................................. .............................16 Section 9.12. Parties in Interest ................................................................................................. .............................16 Section9.13. Amendment ........................................................................................................... .............................16 Section9.14. Counterparts ........................................................................................................ .............................16 Section9.16. Governing Law ..................................................................................................... .............................16 EXHIBIT A DESCRIPTION OF FACILITIES EXHIBIT B DISCRETE COMPONENTS OF FACILITIES EXHIBIT C -1 FORM OF PAYMENT REQUEST (Facilities) EXHIBIT C -2 FORM OF PAYMENT REQUEST (Fees) EXHIBIT D FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT 1/11/05 9058.41 OV n ®SO� H &O: #20904 v1 -ii- 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 -2 (Moorpark Vistas) (the "CFD "), and Moorpark 150, LLC, a Delaware limited liability company (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. 1/11/05 9058.41 000103 H &O: #20904 v1 -1- "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 -2 (Moorpark Vistas), 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 Moorpark 150, LLC, a Delaware limited liability company, 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 and City Fees. "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. 1/11/05 9058.41 Q� ®S�� H &O: #20904 v1 -2- "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. "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. "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 City 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 City Facilities (and Discrete Components) or City Fees to be financed with the proceeds of the Bonds deposited in the Improvement Fund. 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 City 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 1/11/05 9058.41 000105 H &O: #20904 v1 -3- li 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 (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), and (ii) City Fees with Special Taxes of the CFD and the proceeds of the Bonds to be deposited in the Improvement Fund. 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, or the City to acquire any City 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 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 and to fund City Fees pursuant to Payment Requests submitted by the Developer. 1/11/05 9058.41 �1.1� V H &O: #20904 v1 -4- V " ® O V 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 City Fees 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 all City Fees. 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 twelve (12) months (or a different 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 applicable 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. 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 Funds are sufficient to all Payment Requests for facilities Developer expects to submitted 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 City Fees. 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 City Fees 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 1/11/05 9058.41 000107 H &O: #20904 v1 -5- 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 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 1/11/05 9058.41 0����8 H &O: #20904 v1 -6- 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. 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; 1/11/05 9058.41 00109 H &O: #20904 v1 -7- 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 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 1/11/05 9058.41 000110 H &O: #20904 v1 -8- 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 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 Payments. 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 1/11/05 9058.41 00 01.11 H &O: #20904 v1 -9- 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 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. 1/11/05 9058.41 !,� ®�.12 H &O: #20904 v1 -10- V 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 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. 1/11/05 9058.41 000113 H &O: #20904 v1 -11- 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. 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 1/11/05 9058.41 000114 H &O: #20904 v1 -12- 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 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. 1/11/05 9058.41 000115 H &O: #20904 v1 -13- 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 Section 8.01. Funding of City Fees. The City may requisition from the Improvement Fund, 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 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. 1/11/05 9058.41 000116 H &O: #20904 v1 -14- 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: Moorpark 150, LLC c/o SunCal Companies 21900 Burbank Blvd., Suite 114 Woodland Hills, CA 91367 Attention: Project Manager 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. 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 1/11/05 9058.41 000127 H &O: #20904 v1 -15- 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, 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. 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. IN WITNESS WHEREOF, the parties have executed this Acquisition Agreement as of the day and year first -above written. CITY OF MOORPARK on behalf of itself and its COMMUNITY CITY FACILITIES DISTRICT NO. 2004 -2 ( MOORPARK VISTAS) 1/11/05 9058.41 000118 H &O: #20904 v1 -16- ATTEST: LIN City Clerk Mayor 1/11/05 9058.41 O� ®1.19 H &O: #20904 v1 -17- MOORPARK 150, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY By: Moorpark Equity Partners, Ltd., a California limited partnership, its Managing Member By: KRE, L.L.C., a Delaware limited liability company, its General Partner LIN Bruce Elieff, its Managing Member Todd Kurtin, its Managing Member By: LSOF Moorpark Land, L.P., a Texas limited partnership, its Managing Member By: LSOF GenPar III, Inc., a Texas corporation, its General Partner By:_ Name: Title: 1/11/05 9058.41 0001.20 H &O: #20904 v1 -18- EXHIBIT A DESCRIPTION OF FACILITIES AND FEES City Facilities' 1. Spring Road cost participation 2. Walnut Canyon Road street improvements 3. North Hills Parkway street improvements 4. North Hills Parkway landscaping improvements 5. Wickes Road street improvements City Fees 1. All City fees, charges or monetary contributions imposed pursuant to the Conditions of Approval 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 landscaping improvements shall include, but not be limited to, all related soft costs, grading, irrigation, surface improvements and materials. 1/11/05 9058.41 H &O: #20904 vlvl Exhibit A Page 1 000121 EXHIBIT B DISCRETE COMPONENTS OF FACILITIES 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 Discrete components of Landscape Improvements shall consist of the following: (i) soft costs (ii) grading (iii) surface improvements (iv) final completion items 1/11/05 9058.41 H &O: #20904 vlvl Exhibit B Page 1 000122 EXHIBIT C -1 FORM OF PAYMENT REQUEST (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 -2 (Moorpark Vistas) 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. 1/11/05 9058.41 H &O: #20904 vlvl Exhibit C 0001.23 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: 144 Wa Payment Request Approved for Submission to the Director of Finance of the City of Moorpark 0 City Engineer 1/11/05 9058.41 H &O: #20904 v1v1 Exhibit C 0001.24 Page 2 EXHIBIT C -1 ATTACHMENT 1 [list here all City Facilities or Discrete Components thereoffor which payment is requested, and attach support documentation] 1/11/05 9058.41 H &O: #20904 v1v1 Exhibit C "00 5 Page 3 v �G. n 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) $ 1/11/05 9058.41 H &O: #20904 vlvl Exhibit C 0001-26 Page 4 EXHIBIT C -2 FORM OF PAYMENT REQUEST (FEES) 1. The undersigned (the "Developer ") hereby requests payment in the amount of $ ( "Requested Amount ") from CFD No. 2004 -2 for the City Fees specified below: Fee Category 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). 1/11/05 9058.41 H &O: #20904 v1v1 Exhibit C 0001.27 Page 5 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 C Director of Public Works 1/11/05 9058.41 H &O: #20904 vlvl Exhibit C Q 2 8 Page 6 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 -2 (Moorpark Vistas) 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 Facilities and Assignor is released from all such duties and obligations: [Insert description of Facilities to be subject to 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. 1/11/05 9058.41 ��p JJ H &O: #20904 vl D -1 V "0® 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 1111105 9058.41 000130 H &O: #20904 v D -2 ATTACHMENT 1 DESCRIPTION OF SUBJECT PROPERTY 1/11/05 9058.41 0001.31 H &O: #20904 vl D -3 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 -2 (MOORPARK VISTAS) WHEREAS, on September 15, 2004, this Council adopted Resolution No. 2004 -2241 (the "Resolution of Intention ") with respect to Community Facilities District No. 2004 -2 (Moorpark Vistas) (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 all interested persons desiring to be heard on all matters pertaining to the formation of the CFD, Attachment 2 000132 Resolution No. 2005 - Page 2 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 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 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 district designated "Community (Moorpark Vistas)" of the City the Act. CFD. The community Facilities District is hereby established facilities No. 2004 -2 pursuant to SECTION 4. Boundaries of CFD. The boundaries of the CFD, are as set forth in the map of the CFD heretofore recorded in the Ventura County Recorder's Office on October 5, 2004, in OO©JL33 Resolution No. 2005 - Page 3 Book 19 at Page 5 of Maps of Assessment and Community Facilities Districts. SECTION 5. Descriptic type of public facilities and the CFD and pursuant to the listed as facilities (the "Services ") in Exhibit A incorporated herein. SECTION 6. )n of Facilities and Services. The services proposed to be financed by Act shall consist of those items "Facilities ") and services (the hereto and by this reference 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. 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 000134 Resolution No. 2005 - Page 4 residential purposes" not later than the date on which an occupancy permit for private residential use is issued. SECTION 7. 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 8. 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 9. 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 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 (50o 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 000135 Resolution No. 2005 - Page 5 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 10. Appropriations Limit. In accordance with the Act, the annual appropriations limit, as defined by subdivision (h) of Section 8 of Article XIII B of the California Constitution, of the CFD is hereby preliminarily established at $20,000,000 and said appropriations limit shall be submitted to the voters of the CFD as hereafter provided. The proposition 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 11. 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 12. 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 000136 Resolution No. 2005 - Page 6 contribution, but any agreement to do so shall not constitute a debt or liability of the City. SECTION 13. Callable Bonds. Any bonds issued in these proceedings shall be callable in accordance with the provisions of the Act and as more specifically to be set forth in any resolution providing for the form, execution and issuance of bonds. SECTION 14. 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. This City Council up to and including are valid and in This determination ance with Government SECTION 15. 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 List of Authorized Facilities and Services Exhibit B Rate and Method of Apportionment 000137 EXHIBIT A List of Authorized Facilities and Services COMMUNITY FACILITIES DISTRICT NO. 2004 -2 (Moorpark Vistas) 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, Freeway Overpass & Ramp Improvements.) • Street Improvements for Walnut Canyon Road, Wickes Road, North Hills Parkway, and Spring Road (including, but not limited to, the associated sidewalks, traffic controls, street lighting, curb and gutter, pedestrian access ramps, grading, design) • Storm Drainage and Retention Facilities • 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 t: eligible to be financed is general in natu appurtenant work and incidental expenses Facilities. The final nature and location of be determined upon the preparation of specifications for such facilities. pes of Facilities e and includes any relating to the the facilities will final plans and 0001.38 Services Services for the distric services within or in the vicin. to those services provided in t: do not supplant services already to the extent authorized by the Act of 1982, as amended. Other include funding for Police ty of the District, in addition e territory of the District and available within that territory, Mello -Roos Community Facilities 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. 000139 RATE AND METHOD OF APPORTIONMENT FOR COMMUNITY FACILITIES DISTRICT NO. 2004-2 OF THE CITY OF MOORPARK (Moorpark Vistas) A special tax as hereinafter defined shall be levied on and collected Community Facilities District No. 2004 -2 (Moorpark Vistas) of the City of Moorpark ( "CFD No. 2004 -2 ") 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 -2, 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 -2 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 -2, and costs otherwise incurred in order to carry out the authorized purposes of CFD No. 2004 -2. "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 -2. "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. City of Moorpark Community Facilities District No. 2004 -2 September 7, 2005 Page 1 000140 "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 -2, 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 of 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 -2" means Community Facilities District No. 2004 -2 (Moorpark Vistas) established by the City under the Act. "City" means the City of Moorpark. "City Council" means the City Council of the City, acting as the Legislative Body of CFD No. 2004 -2, or its designee. "City Police Services" means the Proportional costs of police services for and within the vicinity of CFD No. 2004 -2. "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 for which Building Permits were issued on or before March 1 preceding the Fiscal Year for which Special Taxes are being levied, City of Moorpark Community Facilities District No. 2004 -2 September 7, 2005 Page 2 000141 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 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 Table 1 below. "Lot" means an individual legal lot created by a Final Map 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 -2 in any Fiscal Year on any Assessor's Parcel. "Maximum Special Tax for Facilities" means the Maximum Special Tax, determined in accordance with Section C that can be levied by CFD No. 2004 -2 in any Fiscal Year on any Assessor's Parcel. "Maximum Special Tax for Services" means the Maximum Special Tax, determined in accordance with Section C that can be levied by CFD No. 2004 -2 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. City of Moorpark September 7, 2005 Community Facilities District No. 2004 -2 Page 3 000142 "Proportionately" means that the ratio of the actual Annual Special Tax levy to the applicable Special Tax is equal for all applicable Assessors' Parcels. "Residential Property" means all Assessors' Parcels of Developed Property within CFD No. 2004 -2 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 -2 (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 -2 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 -2 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 -2 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 -2 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. "Special Tax Requirement for Services" means the amount determined in any Fiscal Year for CFD 2004 -2 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 -2 for the previous Fiscal Year. "Taxable Property" means all Assessors' Parcels within CFD No. 2004 -2 that are not Exempt Property. "Undeveloped Property" means all Assessors' Parcels of CFD No. 2004 -2 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. SECTION B CLASSIFICATION OF ASSESSOR'S PARCELS City of Moorpark September 7, 2005 Community Facilities District No. 2004 -2 Page 4 000143 Each Fiscal Year, beginning with Fiscal Year 2006 -2007, each Assessor's Parcel within CFD No. 2004 -2 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. SECTION C MAXIMUM SPECIAL TAXES 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. c. The Maximum Special Tax for Services for each Assessor's Parcel of Residential Property that is classified as Developed Property in Fiscal Year 2006 -2007 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 Fiscal Year 2006 -2007 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. City of Moorpark Community Facilities District No. 2004 -2 September 7, 2005 Page 5 000144 1. 2. SECTION D ASSIGNED SPECIAL TAX Developed Property Each Fiscal Year, each Assessor's Parcel of Developed Property 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 for any Fiscal Year shall be determined pursuant to Table 1. TABLE 1 DEVELOPED PROPERTY ASSIGNED ANNUAL SPECIAL TAX RATES FOR FACILITIES Land Use Typ e Building Square Footage Assigned Annual Special Tax 1. Residential Property Less than 3,401 $6,025 per Unit 2. Residential Property 3,401 — 3,850 $6,844 per Unit 3. Residential Property 3,851 — 4,300 $7,738 per Unit 4. Residential Property Greater than 4,300 $8,408 per Unit 5. Non Residential Property N/A $34,249 per Acre Final Map Property and Undeveloped Property Each Fiscal Year, each Assessor's Parcel of Final Map Property and Undeveloped Property shall be subject to an Assigned Special Tax for Facilities. The Assigned Special Tax for Facilities rate for an Assessor's Parcel classified as Final Map Property and Undeveloped Property for Fiscal Year 2006 -2007 shall be $34,249 per Acre. SECTION E BACKUP SPECIAL TAXES FOR FACILITIES Each Fiscal Year, each Assessor's Parcel of Developed Property classified as Residential Property shall be subject to a Backup Special Tax for Facilities. In each Fiscal Year, the Backup Special Tax for Facilities for Developed Property classified as Residential Property within a Final Map shall be the amount per Lot calculated according to the following formula: RxA L The terms above have the following meanings: City of Moorpark September 7, 2005 Community Facilities District No. 2004 -2 Page 6 000145 B = Backup Special Tax for Facilities per Lot in each Fiscal Year. R = Maximum Special Tax for Facilities rate per Acre for Undeveloped Property for the applicable Fiscal Year. 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: 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. 3. 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 Commencing Fiscal Year 2006 -2007 and for each subsequent Fiscal Year, the City Council shall levy a Special Tax on all Taxable Property within CFD No. 2004 -2 until the total amount of Special Tax for Facilities equals the Special Tax Requirement 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 at up to 100% of the applicable Assigned Special Tax for Facilities as presented in Table 1 as needed to satisfy the Special Tax Requirement. 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 City of Moorpark Community Facilities District No. 2004 -2 September 7, 2005 Page 7 000146 Facilities shall be levied Proportionately on each Assessor's Parcel of Final Map Property 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 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, 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 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 for Facilities shall be levied Proportionately on each Assessor's Parcel of Undeveloped Property 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 -2. 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 -2 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 September 7, 2005 Community Facilities District No. 2004 -2 Page 8 00014'7 Notwithstanding the above, under no circumstances will the Special Taxes for Services 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 -2. SECTION G PREPAYMENT OF SPECIAL TAX FOR FACILITIES The following definitions apply to this Section G: "CFD Public Facilities" means $9,682,000 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 -2, 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 -2. "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. City of Moorpark September 7, 2005 Community Facilities District No. 2004 -2 Page 9 000148 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 -2 in calculating the proper amount of a prepayment. Within 15 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 buildout, 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 buildout, as reasonably determined by the City. 3. 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." City of Moorpark Community Facilities District No. 2004 -2 September 7, 2005 Page 10 0001.49 5. Compute the Future Facilities Cost. 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. 8. 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 o£ (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 -2 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. City of Moorpark Community Facilities District No. 2004 -2 September 7, 2005 Page 11 0001.50 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 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 for Facilities obligation. With respect to any Assessor's Parcel that is partially prepaid, the City Council shall indicate in the records of CFD No. 2004 -2 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 Assessors' Parcels subject to the Special Tax. If any delinquent Special Tax for Facilities remain City of Moorpark September 7, 2005 Community Facilities District No. 2004 -2 Page 12 000151 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 -2 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. 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 less than 23.61 Acres. 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 less than 23.61 Acres. Assessor's Parcels which cannot be classified as Exempt Property because such classification would reduce the Acreage of all Taxable Property to less than 23.61 Acres will continue to be classified as Undeveloped Property, and will continue to be subject to Special Taxes accordingly. 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 -2 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 -2 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 -2 Page 13 0® ®1.52 City of Moorpark Community Facilities District No. 2004 -2 September 7, 2005 Page 14 0001.53 Exhibit C Boundary Map September 7, 2005 Page C- 1 Community Facilities District No. 2004 -2 (Moorpark Vistas) City of Moorpark Oa ®1.54 to O O PROPOSED BOUNDARY MAP OF THE CITY OF MOORPARK COMMUNITY FACILITIES DISTRICT NO. 2004 -2 (MOORPARK VISTAS) COUNTY OF VENTURA, STATE OF CALIFORNIA FILED IN THE OFFICE OF THE CITY CLERK OF THE CITY OF MOORPARK THIS ___ DAY OF 2004. 5-12-0-020-0-1 5- 12- 0-030 -0 -J ------ C ITY --- ---------- - - - - -- CITY CLERK ,( WITHIN P SHOWING BOUNDARIES OFI THE CITYTOF MOORPARK COMMUNITY FACILITIES DISTRICT N0. 2004 -2, COUNTY OF VENTURA, STATE OF CALIFORNIA, WAS G� APPROVED BY THE CITY COUNCIL OF THE CITY OF MOORPARK AT A REGULARLY SCHEDULED MEETING THEREOF, HELD ON THE DAY OF 2004 6-12-0-030-02 _ , BY ITS RESOLUTION NOS. 612-0-040-14 ______ ________ CITY CLERK THE BOUNDARIES OF THE DISTRICT INCLUDE ASSESOR PARCEL NUMBERS: 6-12 -0-050 Ji -02, C06 510001 05, & 2 r 512-0-04 (JJi -- 020 -, -03 612 -0- 030 -O k -0, 2 12-0 -050-3 512 -0- 040 -03, -04 -07, -14, & -24 512 -0- 050 -14, k -35. PORTION ML WICKS TR NO, 2, M. R. BK.S, PC 37 PORTION ML WICKS TR N0.1, M.R BK S, FC.37 SIMI, MR BK3, PO.7 RDRANCHO s IC KS FILED THIS _- DAY OF — ------ 2004, AT THE CASEY RD HOUR OF _ O'CLOCK - -M. IN BOOK _ OF MAPS OF ASSESSMENT AND COMMUNITY FACILITIES DISTRICTS AT PAGE , AND AS INSTRUMENT NO. _ IN THE OFFICE r_ ry _/ ;� 1 % V !f 0 1 - J (� / r� OF THE COUNTY RECORDER IN THE COUNTY OF VENTURA, STATE OF CALIFORNIA. _______________ __ __ COUNTY RECORDER COUNTY OF VENTURA 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 -2 (VISTAS AT MOORPARK) WHEREAS, on September 15, 2004, this Council adopted Resolution No. 2004 -2241 (the "Resolution of Intention ") with respect to Community Facilities District No. 2004 -2 (Vistas at Moorpark) (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- 2242 (the "Resolution Determining Necessity "), determining the necessity to incur bonded indebtedness in the maximum aggregate principal amount of $40,000,000 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, due to the complexity of the negotiations with owners of property in the District this Council and the owners of the property in the CFD desire to reduce the previously determined amount of bonded indebtedness necessary for the CFD to incur to a maximum aggregate principal amount of $20,000,000; 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 Attachment 3 ®U ®1.56 Resolution No. 2005 - Page 2 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 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 $20,000,000 within the boundaries of the CFD for the purpose of financing the costs of the Facilities and Services, 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 $20,000,000 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 00015'7 Resolution No. 2005 - Page 3 time to time, by Government Code Section 53531 or any similar controlling provision of law. SECTION S. 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 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. to the adoption resolution to be Certification. The City Clerk shall certify of filed this resolution and cause a certified in the book of original resolutions. PASSED AND ADOPTED this 21St day of September, 2005. Patrick Hunter, Mayor ATTEST: Deborah S. Traffenstedt, City Clerk 000158 RESOLUTION NO. 2005- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MOORPARK, CALIFORNIA, CALLING SPECIAL ELECTION IN COMMUNITY FACILITIES DISTRICT NO. 2004 -2 (VISTAS AT MOORPARK) WHEREAS, on September 21, 2005 this Council adopted Resolution No. 2005- 1 (the "Resolution of Formation) ordering the formation of the City's Community Facilities District No. 2004 -2 (Vistas at Moorpark) (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 $20,000,000 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 000159 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 000160 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. 000161 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 000162 EXHIBIT A COMMUNITY FACILITIES DISTRICT NO. 2004 -2 (VISTAS AT MOORPARK) 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 $20,000,000 in bonds, levy a special tax, and finance public facilities by and through its Community Facilities District No. 2004 -2 (Vistas at Moorpark), Number of votes all as specified in its Resolution Nos. NO 2004 -2241 and 2004 -2340, and shall the appropriations limit for the District for fiscal year 2004 -2005 be established at $20,000,000? 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 000163 RESOLUTION NO. 2005- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MOORPARK, CALIFORNIA, DECLARING ELECTION RESULTS OF COMMUNITY FACILITIES DISTRICT NO. 2004 -2 (VISTAS AT MOORPARK) 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 -2 (Vistas at Moorpark) (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 $20,000,000 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 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 000164 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 $20,000,000, and the approval of an annual appropriations limit of not to exceed $20,000,000 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. 000165 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 000166 EXHIBIT A CERTIFICATE OF CITY CLERK CANVASS AND STATEMENT OF RESULTS OF ELECTION CITY OF MOORPARK COMMUNITY FACILITIES DISTRICT NO. 2004 -2 (VISTAS AT MOORPARK) 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 -2 (VISTAS AT MOORPARK)" 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 o OF THE TOTAL VOTES CAST. I make this Certification on September 21, 2005. Deborah S. Traffenstedt, City Clerk 000167 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MOORPARK, CALIFORNIA, LEVYING A SPECIAL TAX WITHIN COMMUNITY FACILITIES DISTRICT NO. 2004 -2 (VISTAS AT MOORPARK) WHEREAS, on September 15, 2004, this Council adopted Resolution No. 2004 -2241 (the `Resolution of Intention ") with respect to Community Facilities District No. 2004 -2 (Vistas at Moorpark) (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 0001GS 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 000169 Ordinance No. Page 3 to be invalid or unconstitutional by any court of competent 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 000170