“Permitted Delay Notice” shall have the meaning set forth in Section 5.3. “PFE Fee” shall have the meaning set forth in Section 3.1. “PFE Fee Policy” shall have the meaning set forth in Section 3.1. "PFE Fee Program" shall have the meaning set forth in Section 3.1. “Plan Area Fee” shall have the meaning set forth in Section 3.2.1. “Plan Area Fee Program” shall have the meaning set forth in Section 3.2.1. “Project” means the overall development of the Property pursuant to this Agreement and the Entitlements.
“Property” means those parcels depicted in Exhibit “A” and more particularly described in Exhibit “B” as set forth in Recital C of this Agreement. “Public Improvements” shall have the meaning set forth in Section 2.2. “Specific Plan” (SP) means the Village 1 Specific Plan adopted by the City Council on November 27th, 2012 as set forth in Recital F.2(b).
“Specific Plan Amendment” (SPA) means the Village 1 Specific Plan Amendment adopted by the City Council on September 26, 2023, by Resolution 2023-179. “Subsequent Entitlements” shall mean all additional and further land use entitlements approved for development of the Property by City following the date of City’s approval of this Agreement.
"Tentative Map" means the Tentative Subdivision Map for the project as set forth in Recital F.2(f).
“Term” shall have the meaning set forth in Section 1.5.1. “Transfer Agreement” shall have the meaning set forth in Section 1.9.1(a). “Zoning Ordinance” shall mean City’s zoning ordinance contained in Title 18 of City’s Municipal Code.
1.4 Interest of Developer. Developer is the fee owner and holds a lega l interest in the Property and all portions thereof and all other persons holding legal or equitable interests in the Property are to be bound by this Agreement. Notwithstanding anything set forth in this Agreement to the contrary:
(a) Subject to Section 1.19 regarding the timing of development, the Property shall be developed in accordance with this Agreement as set forth herein. 194
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(b) Developer is not obligated by the terms of this Agreement to affirmatively act to develop all or any portion of the Property, pay any sums of money, dedicate any land (except as set forth in this Agreement), indemnify any party, or to otherwise meet or perform any obligation with respect to the Property, except and only as a condition to the development of any portion of the Property and even then only to the extent that such act or obligation is necessitated by and in proportion to Developer's development of that portion or phase of the Property. (c) Any development of a portion of the Property shall be subject to the terms of this Agreement, and all the rights, duties, and obligations of both parties to this Agreement shall pertain to such Property.
1.5 Term.
1.5.1 Term. The term of this Agreement shall commence upon _______[insert date] (“Effective Date”) and shall extend for a period of twenty (20) years from the Effective Date (“Term”).
1.6 Termination. This Agreement shall be terminated and of no further effect upon the occurrence of any of the following events:
(a) Expiration of the Term;
(b) Completion of the Project in accordance with the Entitlements and City’s issuance of all required occupancy permits and acceptance of all dedications and improvements required under the Entitlements and this Agreement;
(c) For any specific residential dwelling or other structure within the Project, this Agreement shall automatically be terminated upon the issuance by City of a certificate of occupancy for such dwelling or other structure;
(d) Entry of final judgment (with no further right of appeal) or issuance of a final order (with no further right of appeal) directing City to set aside or withdraw City’s approval of this Agreement or any material part of the Entitlements; or (e) The effective date of a termination as provided in Article 6 of this Agreement.
1.6.1 Notice of Termination. City shall, upon written request made by Developer to City ’s Community Development Director, determine if the Agreement has terminated with respect to any parcel or lot at the Property, and shall not unreasonably withhold, condition, or delay termination as to that lot or parcel. Upon termination of this Agreement as to any lot or parcel, City shall upon Developer ’s request record a notice of termination that the Agreement has been terminated as to that parcel or lot at the Property. The aforesaid notice may specify, and Developer agrees, that termination shall not affect in any manner any continuing obligation to pay any item specified by this Agreement. Termination of this Agreement as to any parcel or lot at the Property shall not affect Developer ’s rights or obligations under any of the Entitlements and Subsequent Entitlements, including but not limited to, the General Plan, Specific Plan, Zoning Ordinance and all other City policies, regulations and ordinances applicable to the Project or the Property, 195
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including such rights set forth in Article 4, including but not limited to the right to secure PFE Fee credits or Plan Area Fee credits and any and all reimbursements due to Developer from Non - Participating Landowners. City may charge a reasonable fee for the preparation and recordation of any notice(s) of termination requested by Developer.
1.7 Amendment of this Agreement. This Agreement may be amended from time to time, in whole or in part by mutual written consent of the parties hereto or their successors in interest, and as follows:
(a) Minor Amendments. Any Amendment to this Agreement, or the Infrastructure Financing Plan, meeting the provisions of Lincoln Municipal Code Section
18.84.100 and which can be processed under CEQA as exempt from CEQA, or with the preparation of a Negative Declaration, shall be a minor amendment and shall not require a noticed public hearing prior to the parties executing an amendment to this Agreement, except as otherwise required by state law; provided, however, that City shall retain discretion to hold a public hearing if it so chooses.
(b) Substantial Amendments. Except as otherwise described in Section 1.7(a), amendments to this Agreement shall require notice and a public hearing pursuant to California Government Code Section 65868.
(c) Parties Required to Amend . Where a portion of Developer’s rights or obligations have been transferred, assigned, and assumed in accordance with this Agreement, the signature of the person or entity to whom such rights or obligations have been assigned shall not be required to amend this Agreement unless such amendment would materially alter the rights or obligations of such assignee, provided thirty (30) days’ prior written notice of any amendment is provided to such person or entity by the amending parties. In no event shall the signature or consent of any non-assuming assignee be required to amend this Agreement.
1.7.1 Effect of Amendment. Any amendment to this Agreement shall be operative only as to those specific portions of this Agreement expressly subject to the amendment, with all other terms and conditions remaining in full force and effect without interruption. No amendment to this Agreement shall be effective unless contained in a writing executed by both Cit y and Developer, or their successors in interest.
1.8 Project Approval Amendments . To the extent permitted by state and federal law, any Entitlement may, from time to time, be amended or modified in the following manner:
1.8.1 Minor Amendments. Amendments to the Spe cific Plan shall comply with Section 7.6.2 thereof. Amendments to the General Development Plan shall comply with Section
4.4 thereof. For amendments or modifications to any Entitlement or Subsequent Entitlement (other than this Agreement), the Specific Plan, or the General Development Plan, Developer may submit a written request for amendment or modification to the Community Development Director. The Community Development Director or his/her designee shall determine whether the requested amendment or modification is a minor amendment or modification that may be approved by the Community Development Director without notice or public hearing. For purposes of this section only and by way of example, minor modifications or amendments include changes in pedest rian paths; amendments to lot patterns and street alignments which will not have a substantial or 196
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material impact on the circulation system as described for each village area in the Specific Plan; minor changes in landscaping for any landscaping shown on a final map or landscape plan; variations in the location of lots or home sites that do not substantially alter the design concepts of the Project; reductions in the number of lots or home sites that do not substantially alter the design concepts of the Project; and variations in the location or installation of utilities and other infrastructure connections or facilities that do not substantially alter the design concepts of the Project. Notwithstanding the foregoing, City retains the exclusive right to make the determination, in its own discretion, as to whether a modification or amendment constitutes a minor modification or amendment or requires an amendment in accordance with Section 1.8.2 below. The Community Development Director and/or the City Manager shall retain the right and discretion to present any amendment or modification to City’s Planning Commission and/or City Council for approval at a noticed public hearing and/or a public meeting of those legislative bodies.
1.8.2 Substantial Amendments. Any request of Developer for an amendment or modification to an Entitlement or Subsequent Entitlement (other than this Agreement) which is determined by City not to be a minor amendment as set forth in Section 1.8.1 above shall be subject to the provisions of review, consideration and action pursuant to the Specific Plan, General Development Plan, and other applicable law.
1.8.3 Vesting of Entitlements Made By Amendments. In the event of any change to any Entitlement or Subsequent Entitlement made pursuant to Sections 1.8.1 or 1.8.2 above, the change to such Entitlement or Subsequent Entitlement shall be vested for the then remaining duration of the Term of this Agreement, or the period of time allowed by applicable statute, whichever is longer.
1.8.4 Subsequent Approvals; Application of Agreement . City shall accept for processing and review any and all applications submitted by Developer for land use entitlements necessary or convenient for the exercise of Developer's rights under the Entitlements for the use and development of the Property.
1.9 Assignment of Interests, Rights and Obligations . Developer may assign all or any portion of its interests, rights or obligations under this Agreement to third parties acquiring an interest or estate in the Property or any portion thereof in accordance with the provisions of this Article.
1.9.1 Transfer Agreements.
(a) In connection with the transfer or assignment by Developer of all or any portion of the Property, Developer and the transferee shall enter into a written agreement in the form attached hereto as Exhibit “D” (“Transfer Agreement”) regarding the respective interests, rights and obligations of Developer and the transferee in and under this Agreement. Such Transfer Agreement shall: (i) release Developer from obligations under this Agreement, as described in the Transfer Agreement, provided that the transferee expressly assumes such obligations; (ii) transfer to the transferee rights under this Agreement; and (iii) address any other matter deemed by Developer to be necessary or appropriate in connection with the transfer or assignment. Transferor shall, within ten (10) days of the execution of the Transfer Agreement, provide City notice of the transfer pursuant to the notice provisions of this Agreement. Upon recordation of any Transfe r Agreement in the Official Records of Placer County, Developer shall be automatically released 197
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from those obligations assumed by the transferee therein. No breach or default hereunder by any person succeeding to any portion of Developer’s obligations unde r this Agreement shall be attributed to Developer, nor may Developer’s rights hereunder be canceled or diminished in any way by any breach or default of any transferee.
1.9.2 Non-Assuming Transferees. Except as otherwise elected by Developer, upon the sale of any parcel for which all public improvements required for the development thereon have been completed (or for which public improvements adequate financial security for the completion thereof has been posted by Developer and accepted by City) and any financing districts required to include such parcel hereunder have been formed, then the burdens, obligations and duties (but not the rights) of Developer under this Agreement as to such conveyed parcel shall terminate with respect to such transferee. In such event, a Transfer Agreement shall not be required in connection with the conveyance of such parcel and the assignment of the rights, without the obligations, under this Agreement. Nothing in this Section shall exempt any property transferred from payment of applicable fees and assessments or compliance with applicable conditions of approval.
1.10 Notices. All notices required or provided for under this Agreement shall be in writing and shall be sent by: (i) U.S. mail first class postage prepaid with return receipt requested; (ii) by overnight courier or hand delivery; or (iii) by facsimile with original forwarded by U.S.
Mail, addressed as follows, with email copies provided to the email addresses below:
Notice to City: City of Lincoln
Attention: City Manager
600 6th Street
Lincoln, CA 95648
Telephone: 916.434.2490
Facsimile: 916.645.8903
Email: [email protected]
Notice to Developer: Stardust 80
P.O. Box 1305
Loomis, CA 95650
Attention: Clifford Stokes
Telephone: (916) 712-7610
Email: [email protected]
Notice shall be effective when the postal authorities indicate the mailing was delivered, the date delivered in person, or upon receipt of the entire document by the receiving party’s fax machine, as evidenced by the sending party’s facsimile confirmation report.
1.11 Development Agreement Controls. In the event of any inconsistency between the terms and provisions of this Agreement, the Specific Plan, the General Development Plan, t he Large Lot Tentative Map conditions of approval, and/or the conditions of approval for any Small Lot Tentative Subdivision Map for the Project, the terms and provisions of this Agreement shall control. Developer acknowledges the obligations imposed by the Infrastructure Financing Plan, as 198
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amended from time to time, impose separate and distinct obligations that are binding upon Developer.
1.12 Vested Rights. Except as set forth in Sections 2.4, 2.5, 2.6, and 2.7, Developer shall have the vested right to proceed with development of the Property in accordance with the Entitlements, and to have Subsequent Entitlements considered for approval or denial, based upon the terms, standards and requirements set forth in the Entitlements. It is the intent of City and Developer that Developer’s vested rights shall include: (i) the permitted land uses, density and intensity of use, timing or phasing of development, zoning, provisions for reservation or dedication of land for public purposes, the maximum height and size of proposed buildings, the location and size of public improvements, and the design, improvement, and construction standards and specifications applicable to development of the Property all as set forth in the Entitlements and in this Agreement; and (ii) all other terms and conditions of the development of the Project as set forth in the Entitlements and in this Agreement. Any amendments to this Agreement will affect only those sections amended and shall not affect any other term of this Agreement.
1.13 Extension of Entitlements and Subsequent Entitlements . Pursuant to Government Code Section 66452.6, all vesting tentative subdivision maps, vesting tentative parcel maps, parcel maps, tentative subdivision maps, planned unit development permits, specific development permits, special permits, general development plans or any other maps, zonings, re-zonings or land use entitlements of potentially limited duration previously, contemporaneously or subsequently approved by City for the Property subject to this Agreement shall be valid for a minimum term equal to the Term of this Agreement, or for a period of forty -eight (48) months, whichever is longer, but in no event for a period shorter than the maximum period of time permitted by the California Subdivision Map Act or Government Code for such land use entitlements.
1.14 Rules, Regulations and Policies. Except as set forth in Sections 1.16, 1.17, 1.18 and
1.19, below, the rules, regulations, policies, ordinances, and resolutions of City governing the development of the Project, including permitted uses of the Property, density, and design, improvement, and construction standards and specifications, shall be those in force on the Effective Date of the Agreement and as contained in the Entitlements and this Agreement. In the event of any conflict between the provisions of this Agreement and any ordinance, resolution, rule, regulation or policy of City, the provisions of this Agreement shall control.
1.15 Application of Subsequently Enacted or Modified Rules, Regulations and Ordinances. City may, during the Term of this Agreement, apply such City -enacted or modified rules, regulations, ordinances, laws, and official policies including improvement and construction standards and specifications and plans adopted or modified after the date of this Agreement which are not inconsistent with or in conflict with the Entitlements or this Agreement, are applied uniformly to all similar properties, or otherwise do not prevent development of the Project in accordance with the Entitlements and the terms of this Agreement. (a) Should an ordinance or resolution or other measure be enacted, whether by action of the City Council, by initiative, referendum or otherwise which is in conflict with or reduces Developer’s vested development rights as provided in the Entitlements and/or this Agreement, City agrees that such ordinance, resolution or other measure shall not apply to the 199
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Project, or any development thereof, or construction related thereto, or construction of improvements necessary therefore.
(b) Should an ordinance or resolution or other measure be enacted, whether by action of the City Council, by initiative, referendum or otherwise which relates to the rate, timing or sequencing of the development or construction of the Project, including, but not limited to, development no-growth or slow growth moratoria, to the extent any such measure is inconsistent with or conflicts with the Entitlements and/or this Agreement, City agrees that such ordinance, resolution or other measure shall not apply to the Project, or any development thereof, or construction related thereto, or construction of improvements necessary therefore. (c) Should any initiative, referendum, or other measure be enacted, and any failure to apply such measure to the Property by City is legally challenged, Developer agrees to fully defend, indemnify and hold the City harmless against such legal challenge with legal counsel selected by City, including providing all necessary legal services, bearing all reasonable costs therefore, and otherwise holding City harmless from all costs and expenses reasonably incurred by City in connection with such legal challenge and litigation, but only if City’s failure to apply any such measure to the Property was at the written request of Developer. In addition, if Developer is not named as a party in any such litigation, City agrees that it will support Developer's efforts to intervene in any such litigation if Developer should choose to do so. (d) Without limiting the terms of Section 1.12 or 1.17, by virtue of this Agreement, Developer is being given the vested right to develop the Project without having to comply with the terms and provisions of any future City-enacted inclusionary housing ordinance, affordable housing ordinance, or similar ordinance that would require Developer to provide a minimum number of below -market rate housing units at the Property or pay a fee in- lieu of providing below-market rate housing units at the Property.
1.16 Uniform Building Code and Improvement Standards . Except as otherwise specifically set forth in this Agreement, and provided they have been adopted by City and are in effect on a city -wide basis, City may apply to the Property, at any time during the Term of this Agreement, the then current City Improvement Standards and Design Criteria, California Uniform Building Code (“UBC”), and any other uniform construction codes as approved by City.
1.17 State and Federal Law . As provided in California Government Code Section 65869.5, this Agreement shall not preclude the application to the Property of changes in law , permits, regulations, plans or policies, design criteria and improvement standards to the extent that such changes are specifically mandated and required by changes in state or federal laws, regulations or permits (“Changes in the Law”). In the event Changes in the Law prevent or preclude compliance with one or more provisions of this Agreement by either party hereto, such provisions of this Agreement shall be modified or suspended or performance delayed, as may be necessary to comply with Changes in the Law, and City and Developer shall meet and confer in good faith to determine whether the Changes in the Law apply to the Property and whether an amendment to this Agreement is necessary in light of the Changes in the Law. City and Developer shall take such action as may be necessary to meet the minimum requirements of such state or federal law, rule or regulation in a manner which is consistent with the original intent and rights and obligations originally placed on each party by this Agreement. In the event City and 200
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Developer, after having engaged in good faith negotiations, are unable to agree on any amendment, they shall consider whether suspension of the Term of this Agreement is appropriate, and if so, what the terms and conditions of any such suspension should be. In the event City and Developer, after having engaged in good faith negotiations are unable to agree on the suspension issues, then Developer shall have the right to terminate this Agreement by giving City sixty (60) days’ written notice of termination. Developer or City shall have the right to institute litigation relating to the Changes in the Law, and raise any issues regarding the validity of the Changes in the Law. If such litigation is filed, this Agreement shall remain in full force and effect until final judgment is issued.
Provided, however, that if any action that City would take in furtherance of this Agreement would be rendered invalid, facially or otherwise, by the Changes in the Law, City shall not be required to undertake such action until the litigation is resolved, or the Changes in the Law are otherwise determined invalid, inapplicable, or are repealed. In the event that such judgment invalidates the Changes in the Law or determines that it does not affect the validity of this Agreement, this Agreement shall remain in full force and effect, and its Term shall be extended by the amount of time between the effective date of the Changes in the Law, and the effective date of the judgment.
In the event that such judgment determines that the validity of this Agreement is, directly or indirectly affected by the Changes in the Law, then the provisions of this Section shall apply.
1.18 Health and Safety Measures . Notwithstanding anything to the contrary contained in this Agreement, nothing herein shall be construed to limit City’s general police power to implement, based upon appropriate and adequate findings, specific measures necessary to alleviate legitimate and bona fide harmful and noxious uses, or protect against threats to the health and safety of City residents as determined by the City Council, in which event any rule, regulation or policy imposed on the development of the Property shall be done to the minimum extent necessary to correct such bona fide harmful and noxious uses or protect against dangerous threats to the health and safety of City residents.
1.19 Development Timing. This Agreement does not require Developer to proceed with development of the Property or to initiate or complete development of any phase of the development of the Property or any portion thereof within any period of time set by City. City acknowledges the timing of development of the Property shall be in Developer’s sole and absolute discretion. No future modification of City’s municipal code or any ordinance or regulation which limits the rate of development over time shall be applicable to the Property.
1.20 Phasing. Developer may choose the size of and file phased small lot final maps for the Project. However, if Developer files a small lot final map consisting of less than ten (10) acres, Developer shall be required to pay the Plan Area Fee for a minimum of ten (10) acres until such time as Developer has met its obligations under the Plan Area Fee Program.
ARTICLE 2
DEVELOPER OBLIGATIONS
2.1 Fee Obligations. Subject to certain fee credits and/or fee reimbursements as set forth in Article 4, Developer shall pay only those Exactions listed in Exhibit “ E” hereto and fees identified in this Agreement including, but not limited to the fees identified in this Article. Except as otherwise provided herein, any and all required payments of fees or Exactions shall be made at the time and in the amount specified by the applicable City programs or ordinances. Nothing in 201
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this Agreement shall constitute a waiver of Developer’s right to challenge the legality of the amount of, allocation of, or any future increases in, the Exactions applied to the Property.
2.2 Public Improvements . Developer agrees, subject to the requirements and limitations of certain fee credits and/or fee reimbursements as set forth in Article 4, unless already constructed, to construct and/or finance those public infrastructure improvements necessary to serve the Project as per the Large Lot Tentative Map conditions of approval, and/or the conditions of approval for any Small Lot Tentative Subdivision Map for the Project, and as set forth in the Infrastructure Financing Plan (“Public Improvements”). Each of the Public Improvements shall be designed and constructed to City’s specifications in effect at the time plans ar e submitted to City for approval, except as may be otherwise provided in Sections 1.14 and 1.15 below. Subject to Section 1.19 regarding the timing of development, the timing for completion of the Public Improvements shall be as set forth in the Infrastructure Financing Plan.
2.3 Water.
2.3.1 Water Facilities . Developer shall construct, with the construction of the Roadway Frontage, a 12-18” water transmission main along t he frontage of the Project, and to connect Highway 193/ McBean Park Drive, where not already constructed by others, as outlined in the Infrastructure Financing Plan and as per the Large Lot Tentative Map conditions of approval, and/or the conditions of approval for any Small Lot Tentative Subdivision Map for the Project .
Developer shall design and construct a waterline within the Oak Tree Lane extension from McBean Park Drive through the Project site and a temporary (interim) waterline that will loop from the south boundary of the Stardust Project (the north boundary of the Leavell property) to the eastern termination of the Hidden Hills project, creating a looped waterline through Oak Tree Lane and McBean Park Drive, unless portions of such waterline section are constructed by others.
2.3.2 Water Supply. City acknowledges and agrees that Developer ’s payment of the applicable City water fees for the Project will provide City with the means to furnish an adequate supply of water for the needs of the Project.
2.3.3 Groundwater. City shall continue to utilize and expand its existing groundwater system to reduce peaks and as an emergency back-up supplement to its surface water supply. In furtherance of City ’s ability to develop its groundwater resources, Developer hereby agrees to dedicate to City all rights to the groundwater underlying the Property. The dedication of such groundwater rights shall take place prior to approval of the first final large lot map and/or small lot final map for the Project and shall be in a form acceptable to the City Attorney.
2.3.4 Water Supply Verification. City acknowledges and agrees that Developer has complied with the terms of California Government Code Section 66473.7 for the Project.
2.4 Drainage. Developer shall design the drainage system for the Project in accordance with all applicable regulations and criteria, including hydro modifications associated with Phase 2 of the Municipal General NPDES Permit currently in force and in accordance with the Village 1 Master Drainage report.
2.5 Wastewater. Developer shall construct backbone infrastructure improvements including a sewer lift station for collection system (gravity sewer mains, sewer pump station, and 202
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force mains) necessary to serve the Project and in accordance with the Infrastructure Finance Plan.
Developer shall be entitled for 3rd party reimbursement from parties benefitting from a lift station, if it is not part of the Infrastructure Financing Plan.
2.6 Parks and Open Space.
2.6.1 Park Dedication and Fee Requirements. City requires Developer to provide neighborhood parks and regional parks for recreational activities at the Property based upon the ratios and population factors per land density set forth in the Specific Plan.
2.6.2 Satisfaction of Regional Park Obligations . City hereby agrees and acknowledges that Developer ’s payment of the PFE Fee regional park fee component and Plan Area Fee regional park land acquisition fee component shall fully satisfy Developer ’s regional park obligations.
2.6.3 Satisfaction of Neighborhood Park Obligations. Developer’s neighborhood park obligations shall be satisfied by a payment of Plan Area Fees . Developer shall pay the neighborhood park development fee component and the neighborhood park land acquisition fee component of the Plan Area Fee in accordance with the Infrastructure Financing Plan. Developer shall receive credit toward any on-site park being dedicated with the small lot final map.
2.6.4 Open Space Preservation Areas . City, and or local, State, or Federal regulatory agencies, including but not limited to the United States Army Corps of Engineers may require Developer to preserve open space and/or enhanc e wildlife habitat and wetland mitigation areas in designated open space areas at the Project (“ Open Space Preservation Areas ”). If the regulatory agency requires compensatory mitigation and monitoring, such as wetland creation, riparian plantings, or oak tree plantings, Developer shall complete any required monitoring and maintenance of the Open Space Preservation Areas until the end of the agency - required monitoring period. City shall accept, maintain, and monitor the Open Space Preservation Areas after the end of the agency-required monitoring period provided: (1) Developer has prepared and submitted a baseline condition report that verifies the habitat has been established to the agencies or agencies’ satisfaction; and (2) City and/or Developer has established a financing mechanism for ongoing maintenance of the Open Space Preservation Areas consistent with Section 3.7.2. If compensatory mitigation and monitoring are not required, Developer may transfer ownership of the Open Space Preservation Area prior to recordation of a final map provided City has approved a baseline condition report and Developer has established an adequate funding mechanism for the ongoing maintenance of the Open Space Preservation Area. Open Space Preservation Areas shall be consistent with City ’s current overall open space management plan, provided nothing herein shall require Developer to violate the terms and conditions of its permit(s) applicable to said Open Space Preservation Areas. Additionally, City hereby agrees that as part of its negotiations with the United States Army Corps of Engineers regarding its overall open space management plan, City will request a provision allowing it to accept Open Space Preservation Areas established under existing permits, and to maintain said Open Space Preservation Areas pursuant to the terms and conditions of its overall open space management plan. In addition, City will adhere to recently approved and adopted Placer County Conservation Plan (PCCP) and any final permit requirements with the PCCP obtained permit.
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2.6.5 Trails. Developer shall construct trail facilities as shown on the Tentative Map, with the improvement plans associated with the final map of which the trail facility is a part.
2.7 Oak Tree and Swainson’s Hawk Mitigation. Developer shal l mitigate for the potential impacts to oak tree resources and Swainson’s Hawk foraging area as provided in the EIR.
Provided that such a plan is available, Developer may, in its sole discretion, provide mitigation through the payment of fees for the Foothill area pursuant to the Placer County Habitat Conservation Plan. Payment of mitigation fees into the Placer County Habitat Conservation Plan for Swainson’s Hawk and oak tree mitigations, if available, shall satisfy the mitigation requirements for those items in the Village 1 EIR.
2.8 Infrastructure, Maintenance and Public Services Finance.
2.8.1 Infrastructure Finance. As further set forth in the Tentative Map conditions of approval and Infrastructure Financing Plan, prior to approval of a small lot final map, upon request by Developer, City and Developer will cooperate to establish one or more CFDs to fund the Public Improvements. Developer may also utilize the Statewide Community Infrastructure Program (“SCIP”) or Bond Opportunities for Land Development (BOLD) Community Facilities District (CFD) Financing Program to fund the Public Improvements. To the extent the costs of the Public Improvements exceed the proceeds from CFDs or other financing mechanism(s), Developer shall be solely responsible for such shortfall.
(a) Infrastructure CFDs. Except as may otherwise be agreed to by Developer and City during the formation of a CFD for the Property, the following specific provisions shall be included within the applicable terms and conditions of any CFD related to the Property. The CFD shall be consistent with any City adopted finance policies relating to such financing. The term of the special tax to be levied by any CFD against the Property shall be sufficient to support multiple bond sales not to exceed an authorized amount appropriate for the Project, as determined by City and Developer. Available CFD bond proceeds and/or special tax proceeds may be used to fund, in addition to acquisition and/or construction of the Public Improvements, reimbursements and/or payment of development impact fees, and City PFE Fee Program projects outside of the Specific Plan area provided the amount of CFD proceeds used to fund such projects shall not exceed the amount of PFE fee credits for which Developer would otherwise be eligible for such projects. When the CFDs are created, City may include provisions that permit the acquisition or construction cost of the Public Improvements to be paid from Pay - As-You-Go Levies in amounts and for time periods to be agreed to in an acquisition agreeme nt entered into in connection with the issuance of bonds. Nothing in this Section shall be construed to limit or change Developer’s ability to receive fee credits and/or fee reimbursements for infrastructure improvements in accordance with City policies in effect as of the Effective Date, including but not limited to improvements financed by a CFD or other financing mechanism. (b) Alternative Financing Mechanisms. Nothing herein shall be construed to limit Developer’s option to construct any improvements through the use of alternative financing mechanisms, including but not limited to SCIP financing, traditional assessment districts, private financing, and other financing mechanisms as permitted by law and authorized by City.
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2.9 Maintenance Finance. As further set forth in the Infrastructure Financing Plan, prior to approval of a small lot final map, City and Developer will complete all actions needed to form, annex into, and/or implement the funding mechanism(s), including financing districts and special taxes, to pay to maintain existing and new public improvements and facilities associated with or needed to serve the Property as identified in the Infrastructure Financing Plan. Developer shall participate in, support, and pay all reasonable costs incurred by City associated with such actions consistent with this Agreement and the Infrastructure Financing Plan. The amount of special taxes or assessments to be included in each new maintenance or services district referred to herein and identified for formation by the Infrastructure Financing Plan shall not exceed the amounts reasonably determined by City and Developer during the formation of such finance district to fund the operations, maintenance and/or services to be financed thereby. City hereby acknowledges such special taxes or assessments shall be (i) used solely to cover the revenue shortfall, if any, caused by the tax sharing agreement negotiated between the City and County of Placer in compliance with California Revenue and Tax Code Section 99(b) and California Government Code Section 56842 for the annexation of the Specific Plan area and (ii) consistent with the City’s revenue and expense assumptions as set forth in the Lincoln Village 1 Infrastructure and Public Facilities Financing Plan prepared by Economic and Planning Systems and dated August 2016 (collectively, “City Acknowledgments”). As more particularly described in Chapter 8 of Volume 1 of the Infrastructure Financing Plan, the funding mechanisms will include the following: (1) parks, trails, landscape corridors, medians, and open space maintenance; (2) street, traffic signals, and lighting maintenance; and (3) storm drainage maintenance.
(a) Interim Maintenance. Existing and new public improvements and facilities associated with or needed to serve the Project may require maintenance prior to implementation of the funding mechanism(s) described in Section 2.8 above. In the event such maintenance is required, and subject to the City Acknowledgments, Developer hereby agrees to provide said maintenance, or enter into an agreement with City to provide advance funding for said maintenance, until the funding mechanism(s) provide sufficient revenue to fund the required maintenance. Once the funding mechanism(s) provide sufficient revenue to fund the required maintenance, City hereby agrees Developer shall be entitled to a reimbursement from the funding mechanism(s) for all sums previously paid or advanced by Developer for the interim maintenance.
The Parties agree the funding mechanism(s) shall be the sole source of funding for the reimbursement. Reimbursements will be paid after all annual maintenance costs have been funded, unless an earlier reimbursement is approved by the City Manager, provided the City Manager shall have the right, in his or her sole discretion, to seek City Council approval of any such alternative reimbursement.
(b) Interim Specific Plan Area Road Maintenance Costs. Developer and City acknowledge certain roads within the Specific Plan area may require maintenance prior to implementation of the funding mechanism(s) described in Section 2.9 and the costs of such maintenance will exceed revenues received by City to provide such maintenance. Said shortfall shall be funded by either a one-time fee per unit of $38.16 paid prior to building permit issuance, or an alternative financing mechanism acceptable to City. The fee of $38.16 per unit shall be adjusted each year on July 1
st by the City based on cost of living or other such inflationary adjustments (including inflationary adjustments based on the Engineering News Record Cost of Construction Index, a Consumer Price Index, or other method) in accordance with City ordinances 205
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or the financing plan. Interim Specific Plan Area Road Maintenance costs will stop once the project annexes into CFD 2018-1.
(c) Amounts and Effect of Alternative HOA Maintenance. If and to the extent the homeowner association for the Property elects to perform any of the maintenance obligations that would otherwise be performed by the districts described in Section 3.8, subject to City’s satisfaction, to be exercised in its reasonable discretion, with the adequacy of the performance thereof secured by the homeowner association, the applicable maintenance financing districts shall include a mechanism whereby the amount of the special taxes or assessments to be collected thereby shall be reduced by the annual savings to be realized by the districts from the performance of such maintenance obligations by the homeowner association and the relieving of the districts from having to perform such maintenance obligations.
2.9.1 Public Services Finance. As further set forth in the Infrastructure Financing Plan, and subject to the City Acknowledgments, prior to approval of a small lot final map, City and Developer will complete all actions needed to form, annex into, and/or implement the funding mechanism(s), including financing districts and special taxes, to pay for public services associated with or needed to serve the Project. City hereby acknowledges such special taxes or assessments shall be (i) used solely to cover the revenue shortfall, if any, caused by the tax sharing agreement negotiated between the City and County of Placer in compliance with California Revenue and Tax Code Section 99(b) and California Government Code Section 56842 for the annexation of the Specific Plan area and (ii) consistent with the City’s revenue and expense assumptions as set forth in the Lincoln Village 1 Infrastructure and Public Facilities Financing Plan prepared by Economic and Planning Systems and dated August 2016(collectively, “City Acknowledgments”). Developer shall participate in, support, and pay all reasonable costs incurred by City assoc iated with such actions consistent with this Agreement and the Infrastructure Financing Plan. a) Interim Wildland Fire Protection Costs. Developer and City acknowledge City may enter into a wildland fire protection agreement with the California Department of Forestry and Fire Protection to provide wildland fire protection within the Specific Plan area until such protection is no longer needed to serve the Specific Plan Area. Developer hereby agrees:
1. To reimburse City for its fair share of the cost of securing such wildland fire protection for each acre within the
Property requiring wildland fire protection as
determined by the wildland fire protection agreement.
2. The amount of the reimbursement owed by Developer
shall be calculated by taking the total number of
developable acres within the Stardust Project property
(Developable Acreage), plus 40% of the Developable
Acreage, and multiplying the sum by the CALFIRE
Total Protection Rate (cost per acre) in effect for the coverage year.
3. Developer shall be required to reimburse the City for any prior years of protection coverage purchased by the City, plus interest, for the Project Property acreage plus 40% of the Project Property Acreage.
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4. Said reimbursement shall be delivered to City by
February 1 each year following the Effective Date of this Agreement.
5. Payment of wildland fire protection costs shall be
required until the Property no longer requires wildland fire protection as determined by the City of Lincoln, at which point Developer’s annual payment obligation
under this Section shall cease.
2.9.2 Interim Public Safety Costs. Developer and City acknowledge providing public safety service to the Project prior to the sale of homes will exceed revenues by City to provide such services, based on the City ’s revenue and expense assumptions as set forth in the Lincoln Village 1 Infrastructure and Public Facilities Financing Plan prepared by Economic and Planning Systems and dated August 2016. Said shortfall shall be funded by either a one -time fee per unit of $246.21 paid prior to building permit issuance, or an alternative financing mechanism acceptable to City. The fee of $246.21 per unit shall be adjusted each year on July 1 st by the City
based on cost of living or other such inflationary adjustments (including inflationary adjustments based on the Engineering News Record Cost of Construction Index, a Consumer Price Index, or other method) in accordance with City ordinances or the financing plan. Interim Public Safety costs will stop once the project annexes into CFD 2018-2.
2.10 Prevailing Wages. To the extent required by California’s Prevailing Wage Law (Labor Code Sections 1720 et seq.), Developer shall pay prevailing wages for construction of the Public Improvements.
2.11 Community Benefit Fee. In recognition of the benefits conveyed by this Agreement, Developer hereby agrees to pay three hundred twenty -two dollars and twenty -seven cents ($322.27) per dwelling unit as a community benefit fee. The proceeds from said fee may be used to achieve com munity benefits as the City Council may deem appropriate. Payment of the community benefit fee shall be made at the time that each building permit for a dwelling unit is issued by the City. The fee of $322.27 per unit shall be adjusted each year on by the City based on cost of living or other such inflationary adjustments (including inflationary adjustments based on the Engineering New Record Cost of Construction Index, a Consumer Price Index or other method in accordance with City ordinances or the financing plan.
ARTICLE 3
CITY OBLIGATIONS
3.1 Public Facilities Element Fee Program. City is currently in the process of updating its PFE fee program to include the public facilities required to serve the 2050 General Plan (“PFE Fee Program”). Upon adoption of the PFE Fee Pr ogram and the Public Facilities Element Implementation Plan and Policies (“PFE Policy”), City shall administer said program and policy and impose a PFE Fee Program fee (“PFE Fee”) on all developing parcels within the Specific Plan area.
3.1.1 PFE Fee Program Credits/Reimbursements. When Developer provides PFE facilities, Developer shall receive PFE Fee credits consistent with City’s PFE Policy. If the amount 207
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of Developer’s PFE Fee credits do not reach a zero balance prior to the issuance of the last building permit within the Project, City shall transfer the then existing credit balance held by Developer to any other property within the Specific Plan area owned by Developer. Upon written notice to City using the form attached hereto as Exhibit “F”, Developer may at any time freely transfer and assign any unused PFE Fee credits to another developer within the Specific Plan area without obtaining City’s consent. PFE Fee credits are eligible for reimbursement when funds are available pursuant to the PFE Policy. If Constructing Owner has an outstanding monetary obligation to the City as noted above, then the City may require the monetary obligation to be met before transfer of the PFE Fee Credit owned by Constructing Owner
3.1.2 Village 1 Non-Critical PFE Fees. As set forth in the Village 1 Infrastructure Finance Plan, if the developer is required to construct or install a Village 1 eligible fee program improvement, the developer shall be allowed to request A) reimbursement or B) fee credits in compliance with the same proces s as exists within the City of Lincoln PFE Fee program. The developer shall be required to install public improvements as identified in the development agreement and associated tentative and final maps. To the extent that additional improvements are needed beyond what is located within the conditions of approval or needed to serve the project identified within this development agreement, the City will meet and confer with the developer to discuss reimbursement options to help facilitate the improvements. The City shall not authorize pooling of fee credits except in limited scenarios as determined by the City Manager.
3.1.3 Accounting of PFE Fee Credits/Reimbursements. Within sixty (60) days of receipt of written request by Developer, City shall provide Developer with a written accounting of Developer’s current balance of PFE Fee credits and/or reimbursements, including complete documentation of the basis for such PFE Fee credits and/or reimbursements. The PFE Fee credit and reimbursement obligations will be calculated in the manner set forth in the PFE Fee Program and/or PFE Policy.
3.1.4 PFE Fee Credits/Reimbursements Agreement . Prior to Developer commencing construction of any facility included in the PFE Fee Program, City shall enter into a PFE Fee credit/reimbursement agreement with Developer in the form attached hereto as Exhibit “G”.
3.1.5 Nature of PFE Fee Credits/Reimbursements . All rights to PFE Fee credits and/or reimbursements shall be personal to Developer and shall not run with the land, unless such rights are expressly designated in writing to do so.
3.2 Infrastructure Financing Plan . City hereby agrees to implement the Infrastructure Financing Plan for the Term of this Agreement such that all projects within the Specific Plan area shall be conditioned to comply with the fee and fee credit/fee reimbursement provisions included therein.
3.2.1 Plan Area Fee Program . As more particularly described in Chapter 6 of Volume 1 of the Infrastructure Financing Plan, City shall adopt and implement the Village 1 Plan Area Fee Program (“ Plan Area Fee Program ”) to finance the costs of excluded or underfunded public facilities and fairly spread the costs thereof to all developing parcels within the Specific Plan area. The Plan Area Fee Program shall consist of four components: (1) infrastru cture fee component; (2) neighborhood park development fee component; (3) neighborhood park land 208
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acquisition fee component; and (4) administration fee component (collectively, “Plan Area Fee”).
The timing of collection of the Plan Area Fee shall be as set forth in Chapter 6 of Volume 1 of the Infrastructure Financing Plan. The Plan Area Fee shall be collected and held by City, and earn interest at the same rate as City receives from the Local Agency Investment Fund.
3.2.2 Plan Area Fee Program Credits/Reimbursements . As more particularly described in Chapter 6 of Volume 1 of the Infrastructure Financing Plan, Developer shall be entitled to Plan Area Fee credits and/or reimbursements from the Plan Area Fee Program for the actual costs incurred to design and/or construct eligible Public Improvements. The amount of such Plan Area Fee credits and/or reimbursements shall be adjusted every year consistent with the Plan Area Fee Program.
3.2.3 Election between Plan Area Fee Credits/Reimbursements. Except as otherwise provided in the Infrastructure Financing Plan, Developer shall be entitled to elect between Plan Area Fee credits and reimbursements, or direct an apportionment between the two, from the Plan Area Fee Program, but shall only be entitled to reimbursements when funds are available for reimbursement through any eligible funding source as identified within the Plan Area Fee Program.
3.2.4 Accounting of Plan Area Fee Credits/Reimbursements . For purposes of calculating and applying Plan Area Fee credits and/or reimbursements, C ity shall maintain segregated Plan Area Fee Program accounts for each component. City shall also maintain an accounting of the current balance of Plan Area Fee credits and/or reimbursements. Within sixty (60) days of receipt of written request by Developer, City shall provide Developer with a written accounting of Developer ’s current balance of Plan Area Fee credits and/or reimbursements, including complete documentation showing the basis for such Plan Area Fee credits and/or reimbursements. The Plan Area Fee credit and reimbursement obligations will be calculated in the manner set forth in the Plan Area Fee Program.
3.2.5 Plan Area Fee Credits/Reimbursements Agreement . Prior to Developer commencing construction of any public facility described in Article 3, City shall enter into a Plan Area Fee credit/fee reimbursement agreement with Developer in the form attached hereto as Exhibit “I”.
3.2.6 Nature of Plan Area Fee Credits/Reimbursements . All rights to Plan Area Fee credits and/or reimbursements shall be personal to Developer and shall not run with the land, unless such rights are expressly designated in writing to do so
3.3 Right-of-Way Acquisition. With respect to the acquisition of any off -site interest in real property required by Developer in order to fulfill any condition required of the Project, the Entitlements or the Subsequent Entitlements, Developer shall make a good faith effort to acquire the necessary interest by private negotiations at the fair market value of such interest. If, after such reasonable efforts, Developer has been unable to acquire such interest and provided that Developer (i) provides evidence of a good faith effort to acquire the necessary property interest to the reasonable satisfaction of City’s Community Development Director and (ii) agrees to pay the cost of such acquisition, including reasonable attorneys’ fees, then City shall make an offer to acquire the necessary property interest at its fair market value. If such offer has not been accepted within sixty (60) days, City agrees, to the extent permitted by law, to cooperate and assist Developer in 209
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efforts to obtain such necessary property interest. Any such acquisition by City shall be subject to City’s discretion, which is expressly reserved by City, to make the necessary findings, including a finding thereby of public necessity, to acquire such interest. Subject to the reservation of such discretion, City shall schedule the necessary hearings, and, if approved by City, thereafter prosecute to completion the proceedings and action to acquire the necessary property interests by power of eminent domain. Developer shall fund all costs of the acquisition of such necessary property interests, including reasonable attorneys’ fees and court costs in the event that such acquisition and/or condemnation is necessary. The cost of rights -of-way for any eligible public facility shall constitute a creditable and/or reimbursable cost and City shall take all necessary steps to include such costs in the applicable fee program. As such, any costs incurred by Developer in the acquisition of such rights -of-way shall be credited to Developer against the applicable fee obligations for the development of the Project. In accordance with Government Code Section 66462.5, City shall not postpone or refuse approval of a final map at the Property because Developer has failed to satisfy a Tentative Map condition because Developer has been unable to construct or install an offsite improvement on land not owned or controlled by Developer or City at the time the final map is filed with City for approval. If determined by City to be necessary, Developer agrees to enter into a subdivision improvement agreement with City and agrees to post any reasonably necessary security, such as a bond, in order to ensure the acquisition and construction of an offsite improvement on land not owned by Developer where the offsite improvement was a condition of approval for the Project. Notwithstanding the foregoing, in the event that City fails to acquire such off-site property by negotiation or condemnation, the off-site improvements shall be conclusively deemed to be waived and Developer shall not be obligated to commence construction of the off -site improvements in accordance with Government Code Section 66462.5.
3.4 Review and Approval of Improvement Plans and Final Maps. To complete the improvement plan and final map review, City shall return first check prints to Developer a minimum of thirty (30) days from the date of the complete submittal package to City. Upon receipt by City of the second submittal, City shall, provided Developer adequately responds to City’s comments on the first check prints, within a minimum of fifteen (15) days of City’s receipt of such second submittal, review and verify that the plans submitted satisfactorily address all City comments. Within a minimum of fifteen (15) days of City’s receipt of completed plans and maps deemed ready for approval, plans shall be signed by the City Engineer, and City staff shall place such maps on the next available City Council hearing agenda. If City determines it will be unable to comply with this Section, and notifies Developer of such determination, then plan check and map review tasks shall be subcontracted to an outside service provider at Developer’s request and expense provided the outside service provider is on City’s on-call list.
3.5 Building Permits.
(a) City shall review construction drawings and master plans (“Master Plans”) prior to construction of any model homes and production homes . City and Developer shall endeavor to resolve all City plan check comments within forty-five (45) days after any application for a Master Plan is deemed complete by City. Thereafter, City shall issue building permits for homes subject to that Master Plan within seven (7) days of City’s acceptance of a complete building permit application provided all of the following have occurred: (1) City’s Design Review Board and Community Development Director have approved the Master Plan; (2) a final map has 210
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been recorded for the Project (prior to production home permits); (3) the requirements of City of Lincoln Public Facilities Improveme nt Standards Section 2- 5 has been satisfied for model home building permits and Section 2-6 has been satisfied for production home building permits, and (4) Developer has paid building permit plan check fees. Recordation of a final map for the Property shall not be required prior to issuance of a building permit for a model home. (b) In the event that an amendment to the UBC results in the need to change the Master Plan, construction of residential units pursuant to the Master Plan shall be allowed to continue for a period of six (6) months from the date the State of California publishes notice of a change in the UBC which triggers a corresponding need for changes to the Master Plan provided the model home is consistent with City’s Design Standards.
3.6 Other Government Permits . Developer shall be responsible for applying for and obtaining approvals and permits required by other governmental agencies having jurisdiction over, or providing services to, the Project. To the extent possible, City shall cooperate with Developer in obtaining all such approvals and permits in as timely a manner as possible.
3.7 Approval of Other Development Agreements within Specific Plan Area .
Subsequent to approval of this Agreement, City expects to process and approve development agreements with other owners within the Specific Plan area. City hereby acknowledges that in entering into such other development agreements within the Specific Plan area, City intends to negotiate terms consistent in all material respects to those in this Agreement with other owners. If within twenty -four (24) months from the Effective Date of this Agreement, City approves a Development Agreement within the Specific Plan area containing any term(s) more favorable than the analogous term(s) included in this Agreement, City hereby acknowledges its desire and intent to amend this Agreement within ninety (90) days of Developer’s written request in order to provide Developer the full benefit of said more favorable term(s). Notwithstanding the foregoing , Developer ackno wledges such an Amendment to this Agreement shall require Planning Commission and/or City Council approval at a noticed public hearing and/or a public meeting of those legislative bodies, as applicable.
ARTICLE 4
ANNUAL REVIEW
4.1 Annual Review.
A. During the Term of this Agreement, City shall once every calendar year review the extent of good faith compliance by Developer with the terms of this Agreement. The cost for City's annual review of this Agreement shall be paid by Developer. Such periodic review shall be limited in scope to compliance with the terms and conditions of this Agreement pursuant to California Government Code Section 65865.1. This review shall be conducted pursuant to Chapter 18.86 of the Lincoln Municipal Code. At least ten (10) days prior to any P lanning Commission and City Council meetings held in connection with said annual review, City shall provide Developer with a copy of the City staff report concerning Developer’s compliance with the terms and provisions of this Agreement.
B. Upon not less than thirty (30) days’ written notice by the Community Development Director, Developer shall provide such information as may be reasonably requested 211
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by the Community Development Director in order to ascertain Developer’s compliance with this Agreement.
C. Failure by City in any given calendar year to undertake and complete its annual review of the Agreement shall constitute a finding by City that Developer is not in default in the performance of its obligations under the Agreement for that calendar year, for purposes of the Estoppel Certificate.
4.2 Estoppel Certificate. Any party to this Agreement and any Lender may, at any time, and from time to time, deliver written notice to the other party requesting such party to certify in writing that, to the knowledge of the certifying party: (i) the Agreement is in full force and effect and a binding obligation on the parties; (ii) the Agreement has not been amended or modified, either orally or in writing, and if so amended or modified, identify the amendments or modifications; and (iii) as of the date of the estoppel certificate, the requesting party (or any party specified by a Lender) is not in default in the performance of its obligations under the Agreement, or if in default to describe therein the nature of any such default and the steps or actions to be taken by the other party reasonably necessary to cure any such alleged default. The party requesting the certificate shall pay all reasonable costs borne by City to complete the certificate. A party receiving a request hereunder shall execute and return such certificate or give a written detailed response explaining why it will not do so within thirty (30) days following the receipt of such request. Each party acknowledges that such an estoppel certificate may be relied upon by third parties acting in good faith. An estoppel certificate provided by City establishing the status of this Agreement shall be in recordable form and may be recorded at the expense of the recording party.
ARTICLE 5
DEFAULT, TERMINATION AND ENFORCEMENT
5.1 Defaults. Except as provided below, any failure by any party to perform any term or provision of this Agreement, which failure continues uncured for a period of thirty (30) days following the receipt of written notice of such failure from the other party, shall constitute a default under this Agreement. If the nature of the alleged default is such that it cannot reasonably be cured within thirty (30) days, the thirty -day time period will be tolled if: (a) the cure is commenced at the earliest practicable date following receipt of the notice; (b) the cure is diligently prosecuted to completion at all times thereafter; (c) at the earliest practicable date (in no event later than thirty (30) days after the party in default’s receipt of the notice), the party in default provides written notice to the non- defaulting party that the cure cannot practicably be completed within such 30- day time period; and (d) the cure is completed at the earliest practicable date. Any notice given pursuant to the preceding two sentences shall specify the nature of any alleged failure and, where appropriate, specify the manner in which said failure may be satisfactorily cured. Upon the occurrence of a default under this Agreement, the non- defaulting party may institute legal proceedings to enforce the terms of this Agreement or, in the event of an uncured material default, may terminate this Agreement. If the default is cured, then no default shall exist and the non- defaulting party shall take no further action.
5.2 Termination. If City elects to consider terminating this Agreement due to an uncured material default of Developer, then City shall give a written notice of intent to terminate this Agreement to Developer and the matter shall be scheduled for consideration and review by 212
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the City Council at a duly noticed and conducted public hearing. At least ten (10) days prior to said hearing, City shall provide Developer with a copy of the City staff report concerning such proposed termination of this Agreement. Developer shall have the right to offer written and oral evidence prior to or at the time of said public hearing. If the City Council determines that a material default has occurred and is continuing, and elects to terminate this Agreement, City shall give written notice of termination of this Agreement to Developer by certified mail and this Agreement shall thereby be terminated sixty (60) days thereafter.
5.3 Force Majeure. Performance by any party of its obligations under this Agreement (other than for payment of money) shall be excused during any period of “Permitted Delay” as hereinafter defined. For purposes hereof, Permitted Delay shall include delay beyond the reasonable control of the party claiming the delay (and despite the good faith efforts of the party) including: (i) acts of God; (ii) civil commotion; (iii) riots; (iv) acts of terrorism; (v) strikes, picketing or other labor disputes; (vi) shortage of materials, energy or supplies; (vii) damage to work in progress by reason of fire, flood, earthquake or ot her casualties; (viii) as to Developer only, failure, delay or inability of City to provide adequate levels of public services, facilities or infrastructure to the Project site; (ix) failure, delay or inability of the other party to act; (x) with respect to completion of the Annual Review, the failure, delay or inability of any party to provide adequate information or substantiation as reasonably required to complete the Annual Review; (xi) delay caused by governmental restrictions imposed or mandated by other governmental entities; (xii) enactment of conflicting state or federal laws or regulations; (xiii) judicial decisions or similar bases for excused performance; (xiv) litigation brought by a third party attacking the validity of this Agreement; (xv) City’s inability to issue or sell bonds necessary to finance any public facilities necessary for the Project’s development and use; and (xvi) building moratoria, water connection moratoria or sewer connection moratoria. Any party claiming a Permitted Delay shall notify the other party in writing of such delay within thirty (30) days after the commencement of the delay, which notice (“Permitted Delay Notice”) shall include the estimated length of the Permitted Delay.
A Permitted Delay shall be deemed to occu r for the time period set forth in the Permitted Delay Notice unless a party receiving the Permitted Delay Notice objects in writing within ten (10) days after receiving the Permitted Delay Notice. In the event of such objection, the parties shall meet and confer within thirty (30) days after the date of objection with the objective of attempting to arrive at a mutually acceptable solution to the disagreement regarding the Permitted Delay. If no mutually acceptable solution can be reached any party may take action as may be permitted under Section 6.1 of this Agreement.
5.4 Legal Action. In addition to any other rights or remedies, any party may institute legal action to cure, correct or remedy any default, to specifically enforce any covenant or agreement herein, or to enjoin any threatened or attempted violation. Notwithstanding anything in this Agreement to the contrary, the parties acknowledge that City would not have entered into this Agreement had it been exposed to liability for damages from Developer, and that therefore, Developer hereby waives any and all claims for damages against City for breach of this Agreement.
Developer further acknowledges that as an instrument which must be approved by ordinance, a development agreement is subject to referendum and that under law, the City Council's discretion to avoid a referendum by rescinding its approval of the underlying ordinance may not be constrained by contract, and Developer waives all claims for damages against City in this regard.
Nothing in this Section is intended to nor does it limit Developer’s or City’s rights to equitable remedies as permitted by law.
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ARTICLE 6
DEFENSE AND INDEMNITY/HOLD HARMLESS
6.1 Defense and Indemnity. Developer shall indemnify, defend and hold City, its elected and appointed commissioners , officers, agents, and employees (“Indemnitees”) harmless from and against any and all actual and alleged damages, claims, costs and liabilities, arising out of this Agreement, including, without limitation, contractual and statutory claims, and those arising out of the personal injury or death of any third party, or damage to the property of any third party, to the extent such damages, claims, costs or liabilities ar ise out of or in connection with the Agreement or the operations of the Project under this Agreement by Developer or by Developer’s contractors, subcontractors, agents or employees. Developer shall not be obligated to indemnify, defend, or hold Indemnitees harmless for damages, claims, costs and liabilities arising out of Indemnitees’ sole negligence or willful misconduct. Nothing in this Article 7 shall be construed to mean that Developer shall defend, indemnify or hold City harmless from any da mages, claims, costs or liabilities arising from, or alleged to arise from, activities associated with the maintenance or repair by City or any other public agency of improvements that have been offered for dedication and accepted by City or such other public agency. City and Developer may from time to time enter into subdivision improvement agreements, as authorized by the California Subdivision Map Act, or other agreements related to the Project, which agreements may include defense and indemnity provisions different from those contained in this Article 7. In the event of any conflict between such provisions in any such subdivision improvement agreements or other Project agreements and the provisions set forth above, the provisions of the agreement providing the broadest indemnity and defense to Indemnitees shall govern the obligations between the parties.
ARTICLE 7
COOPERATION IN THE EVENT OF LEGAL CHALLENGE
7.1 Cooperation. In the event of any administrative, legal, or equitable action or other proceeding instituted by any person not a party to this Agreement challenging the validity of any provision of any of the Entitlements, Subsequent Entitlements or this Agreement, the parties shall cooperate in defending such action or proceeding to dismissal, settlement or final judgment. Each party may select its own legal counsel, and Developer shall pay City’s legal defense fees and costs, including attorneys’ fees, consistent with Developer’s obligations under Section 7.1. In no event shall City be required to bear the fees or costs of Developer, including Developer’s attorneys’ fees.
If requested by Developer, City agrees to support any efforts made by Developer to intervene or join as a party in any such administrative, legal or equitable proceedings if Developer was not named as a party therein. Neither Developer nor City shall settle any action or proceeding on grounds that include non-monetary relief or admissions of liability without written consent of the other party. City agrees to not settle any action based upon monetary relief without the written consent of Developer, unless City is solely liable and agrees to pay such monetary relief. In the event of an award by the court or by an arbitrator of attorneys’ fees to a party challenging this Agreement or any of the Entitlements or Subsequent Entitlements, then Developer shall be liable for satisfying the payment of any such award of third party’s attorneys’ fees only if Developer continued to contest such litigation or legal challenge to a final judgment or other final determination, rather than settling it when City proposed to settle the matter. 214
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7.2 Court Judgment or Order. City and Developer shall meet and endeavor, in good faith to attempt to reach agreement on any amendments needed to allow development of the Property to proceed in a reasonable manner taking into account the terms and conditions of the court’s judgment or order. If agreement is reached, the procedures for amending this Agreement as specified herein shall apply. If agreement is not reached, Develope r shall have the right to terminate this Agreement by giving City sixty (60) days’ notice of termination. In the event that amendment of this Agreement is not required, and the court’s judgment or order requires City to engage in other or further proceedings, City agrees to comply with the terms or the judgment or order expeditiously.
ARTICLE 8
MISCELLANEOUS PROVISIONS
8.1 Authority to Execute Agreement. The person or persons executing this Agreement on behalf of Developer warrant and represent that they have the author ity to execute this Agreement and the authority to bind Developer to the performance of its obligations hereunder.
8.2 Cancellation or Modification . In addition to the rights provided the parties in Article 5 of this Agreement with respect to City’s Annual Review, and Sections 6.1 and 6.2 of this Agreement as to default and termination, any Party may propose cancellation or modification of this Agreement pursuant to Government Code Section 65868, but such cancellation or modification shall require the consent of any parties hereto retaining any legal interest in the Property or any portion thereof.
8.3 Consent. Where consent or approval of a Party is required or necessary under this Agreement, such consent or approval shall not be unreasonably withheld, conditioned or delayed.
8.4 Interpretation of Agreement. All parties have been represented by legal counsel in the preparation of this Agreement and no presumption or rule that ambiguity shall be construed against a drafting Party shall apply to interpretation or enforcement hereof. Captions on sections and subsections are provided for convenience only and shall not be deemed to limit, amend or affect the meaning of the provision to which they pertain.
8.5 California Law. This Agreement shall be construed and enforced in acco rdance with the laws of the State of California. City and Developer shall each comply with all applicable laws in the performance of their respective obligations under this Agreement.
8.6 No Joint Venture or Partnership. City and Developer hereby renounce the existence of any form of joint venture, partnership or other association between City and Developer, and agree that nothing in this Agreement or in any document executed in connection with it shall be construed as creating any such relationship between City and Developer.
8.7 Covenant of Good Faith and Fair Dealing. No Party shall do anything which shall have the effect of injuring the right of another Party to receive the benefits of this Agreement or do anything which would render its performance under this A greement impossible. Each Party shall perform all acts contemplated by this Agreement to accomplish the objectives and purposes of this Agreement.
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8.8 Partial Invalidity Due to Governmental Action. In the event state or federal laws or regulations enacted after the Effective Date of this Agreement, or formal action of any governmental jurisdiction other than City, prevent compliance with one or more provisions of this Agreement, or require changes in plans, maps or permits approved by City, the parties agre e that the provisions of this Agreement shall be modified, extended or suspended only to the minimum extent necessary to comply with such laws or regulations.
8.9 Further Actions and Instruments. The parties agree to provide reasonable assistance to the other and cooperate to carry out the intent and fulfill the provisions of this Agreement. Each of the parties shall promptly execute and deliver all documents and perform all acts as necessary to carry out the matters contemplated by this Agreement.
8.10 No Third-Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the parties and their successors and assigns. No other person shall have any right of action based upon any provision of this Agreement.
8.11 No Waiver . No delay or omission by a party in exercising any right or power accruing upon non-compliance or failure to perform by another party under the provisions of this Agreement shall impair any such right or power or be construed to be a waiver. A waiver by a party of any of the covenants or conditions to be performed by another party shall not be construed as a waiver of any succeeding breach or non -performance of the same or other covenants and conditions thereof.
8.12 Severability. If any provision of this Agreement shall be adjudicated to be invalid, void or illegal, it shall in no way affect, impair or invalidate any other provision, and, with the exception of such provision found invalid, void or illegal, this Agreement shall remain in full force and effect.
8.13 Recording. Pursuant to California Government Code Section 65868.5, no later than ten (10) days after City enters into this Agreement, the City Clerk shall record an executed copy of this Agreement in the official records of the Placer County Recorder’s Office and thereafter provide Developer with a copy of the recorded Agreement.
8.14 Attorneys’ Fees. Should any legal action be brought by any party for breach of this Agreement or to enforce any provisions herein, the prevailing party shall be entitled to reasonable attorneys’ fees, court costs and other costs as may be fixed by the Court. Attorneys’ fees shall include attorneys’ fees on any appeal, and in addition a party entitled to attorneys’ fees shall be entitled to all other reasonable costs for investigating su ch actions, taking depositions and discovery, and all other necessary costs incurred in the litigation.
8.15 Venue. Any action arising out of this Agreement shall be brought in Placer County, California, regardless of where else venue may lie.
8.16 Time is of the Essence. Time is of the essence of each and every provision of this Agreement.
8.17 Several Obligations of Owners. Notwithstanding anything to the contrary contained herein, no default in the performance of a covenant or obligation in this Agreement with respect to 216
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a particular portion of the Property shall constitute a default applicable to any other portion of the Property, and any remedy arising by reason of such default shall be applicable solely to the portion of the Property where the default has occurred. Similarly, the obligations of Developer and any successor in interest thereof shall be several and no default hereunder in performance of a covenant or obligation by any one of them shall constitute a default applicable to any other owner who is not affiliated with such defaulting owner, and any remedy arising by reason of such default shall be solely applicable to the defaulting owner and the portion of the Property owned by such defaulting owner.
ARTICLE 9
PROVISIONS RELATING TO LENDERS
9.1 Lender Rights and Obligations.
9.1.1 Prior to Lender Possession. No Lender shall have any obligation or duty under this Agreement prior to the time the Lender obtains possession of the Property to construct or complete the construction of improvements, or to guarantee such construction or completion, and shall not be obligated to pay any fees or charges which are liabilities of Developer or Developer’s successors-in-interest prior to Lender ’s possession of the Property, but such Lender shall otherwise be bound by all of the terms and conditions of this Agreement which pertain to the Property or such portion thereof in which it holds an interest. Nothing in this Section shall be construed to grant to a Lender right beyond those of Developer hereunder or to limit any remedy City has hereunder in the event of default by Developer, including termination or refusal to grant subsequent additional land use entitlements with respect to the Property.
9.1.2 Lender in Possession. A Lender who comes into possession of the Property, or any portion thereof, pursuant to foreclosure of a mortgage or deed of trust, or a deed in lieu of foreclosure, shall not be obligated to pay any fees or charges which are obligations of Developer and which remain unpaid as of the date such Lender takes possession of the Property or any portion thereof. Provided, however, that a Lender shall not be eligible to apply for or receive entitlements with respect to the Property, or otherwise be entitled to develop the Property or devote the Property to any uses or to construct any improvements thereon other than the development contemplated or authorized by this Agreement and subject to all of the terms and conditions hereof, including payment of all fees (delinquent, current and accruing in the future) and charges, and assumption of all obligations of Developer hereunder; provided, further, that no Lender, or successor thereof, shall be entitled to the rights and benefits of Developer hereunder or entitled to enforce the provisions of this Agreement against City unless and until such Lender or successor in interest qualifies as a recognized assignee of this Agreement and makes payment of all delinquent and current City fees and charges pertaining to the Property.
9.1.3 Notice of Developer ’s Default Hereunder. If City receives notice from a Lender requesting a copy of any notice of default given Developer hereunder and specifying the address for notice thereof, then City shall deliver to such Lender, concurrently with service thereon to Developer, any notice given to Developer with respect to any claim by City that Developer has committed a default, a nd if City makes a determination of non- compliance, City shall likewise serve notice of such non- compliance on such Lender concurrently with service thereof on Developer.
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9.1.4 Lender’s Right to Cure. Each Lender shall have the right, but not the obligation, during the same period of time available to Developer to cure or remedy, on behalf of Developer, the default claimed or the areas of non -compliance set forth in City ’s notice. Such action shall not entitle a Lender to develop the Property or otherwise partake of any benefits of this Agreement unless such Lender shall assume and perform all obligations of Developer hereunder.
9.1.5 Other Notices by City . A copy of all other notices given by City to Developer pursuant to the terms of this Agreement shall also be sent to Lender at the address provided pursuant to Section 10.1.3 above.
ARTICLE 10
ENTIRE AGREEMENT AND EXHIBITS
10.1 Integration Clause and List of Exhibits. This Agreement consists of twenty -nine (29) pages and thirteen (13) Exhibits, which constitute in full the final and exclusive understanding and agreement of the parties and supersedes all negotiations or previous agreements of the parties with respect to all or any part of the subject matter hereof. The following exhibits are attached to this Agreement and are hereby incorporated herein for all purposes:
Exhibit A Overall Project Map
Exhibit B Legal Description of Property
Exhibit C Land Use Map
Exhibit D Transfer Agreement Form
Exhibit E Exactions Applicable to Project
Exhibit F PFE Fee Credit Transfer Agreement Form
Exhibit G PFE Fee Credit/Reimbursement Agreement Form
Exhibit H Village 1 – Infrastructure Finance Plan Fee Reimbursement Agreement Form
Exhibit I Plan Area Fee Credit/Fee Reimbursement Agreement Form
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IN WITNESS WHEREOF , the City of Lincoln, a municipal corporation, has authorized the execution of this Agreement in duplicate by its City Manager and attestation by its City Clerk under authority of Ordinance No. _______________, adopted by the City Council of the City of Lincoln on the ____________day of ________________, 2024, and Developer has caused this Agreement to be executed.
“City”
City of Lincoln,
A Municipal Corporation By:
Name: Sean Scully
Title: City Manager Date:
Date:
“Developer”
Stardust 80, a California limited partnership
By:
Name:
Title:
Date:
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
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Exhibit A
EXHIBIT A
OVERALL PROJECT MAP
220
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Exhibit B - Page 1 of 2
EXHIBIT B
LEGAL DECRIPTION OF PROPERTY
LEGAL DESCRIPTION - STARDUST
REAL PROPERTY IN THE CITY OF LINCOLN, COUNTY OF PLACER, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
THAT PORTION OF SECTIONS 13 AND 24, TOWNSHIP 12 NORTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE WEST LINE OF SECTION 18, TOWNSHIP 12 NORTH, RANGE 7 EAST, MOUNT DIABLO BASE AND MERIDIAN, FROM WHICH THE WEST ¼ CORNER OF SAID SECTION 18 BEARS NORTH 00° 16' 00'' EAST 1980.00 FEET; THENCE FROM SAID POINT OF BEGINNING, SOUTH 00° 16' 00'' WEST 662.95 FEET, TO A 2 INCH IRON PIPE MARKING THE SECTION CORNER COMMON TO SECTIONS 18 AND 19, TOWNSHIP 13 NORTH, RANGE 7 EAST, MOUNT DIABLO BASE AND MERIDIAN, AND SECTIONS 13 AND 24, TOWNSHIP 12 NORTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN, THENCE SOUTH 00° 19' 35'' WEST 1115.75 FEET TO A ¾ INCH IRON PIPE TAGGED L.S. 3636; THENCE ALONG A FENCE LINE, NORTH 89° 40' 32'' WEST 2392.28 FEET, TO A ¾ INCH IRON PIN TAGGED L.S. 4325; THENCE NORTH 00° 08' 39'' EAST 1785.02 FEET TO A ¾ INCH IRON PIN TAGGED L.S. 4325; THENCE SOUTH 89° 14' 15''
EAST 1026.39 FEET; THENCE SOUTH 88° 54' 00'' EAST 106.34 FEET; THENCE SOUTH 89° 59' 33'' EAST
338.18 FEET TO A ¾ INCH IRON PIN TAGGED L.S. 4325; THENCE SOUTH 89° 44' 00'' EAST 926.10 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM ANY PORTION LYING WITHIN THE PROPERTY DESCRIBED IN DEED TO JAROL H. JANSEN, ET UX., RECORDED JUNE 27, 1947 IN BOOK 507 AT PAGE 141.
EXCEPTING THEREFROM THAT PORTION IN THE GRANT DEED DATED JANUARY 8, 1985, EXECUTED BY ALLEN C. CARMICHAEL, ET UX, TO ASSEMBLIES OF GOD NORTHERN CALIFORNIA AND NEVADA DISTRICT COUNCIL, INC., A CALIFORNIA CORPORATION, RECORDED FEBRUARY 4, 1985, IN BOOK 2772, PAGE 225, OFFICIAL RECORDS.
APN: 021-274-040
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Exhibit B – Page 2 of 2
222
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Exhibit C
EXHIBIT C
LAND USE MAP
223
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Exhibit D
1533536.2 4
EXHIBIT D
RECORDING REQUESTED BY
AND
WHEN RECORDED, MAIL TO:
_______________________________
_______________________________
_______________________________
(SPACE ABOVE THIS LINE RESERVED FOR
RECORDER'S USE)
TRANSFER AGREEMENT
THIS TRANSFER AGREEMENT (herein, this “Transfer Agreement’) is entered into as of ________________, 20______, by and between ____________, a ____________(“Seller”) and ________________, a _______________________(“Buyer”).
RECITALS
A. SELLER and BUYER are parties to that certain Agreement with an effective date of ______________, 20________, whereby SELLER agreed to convey to BUYER, subject to the terms of said Agreement, that certain real property situated in the City of Lincoln (“City”), County of Placer, State of California, which is more particularly described in Exhibit A attached hereto and incorporated by reference (the “Subject Property”).
B. The Subject Property is subject to that certain Development Agreement dated _________________, 20 ________recorded in the official records of Placer County (the “Records”) on __________________, 20_____, as Instrument No_____________.
C. The Subject Property is part of the Village 1 master planned community (the “Community”) described in the Development Agreement.
D. SELLER and BUYER are executing and recording this Transfer Agreement pursuant to Section 1.9 of the Development Agreement.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, SELLER and BUYER agree as follows:
1. This Transfer Agreement is effective upon transfer of title to the Subject Property to BUYER (the “Effective Date”).
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Exhibit D
1533536.2 5
2. Except as otherwise provided, all defined terms used in this Transfer Agreement shall correspond to the defined terms in the Development Agreement.
3. SELLER hereby assigns to BUYER all of SELLER’s rights, title, interest, burdens and obligations under the Development Agreement related to the Subject Property. BUYER, its successors and assigns hereby expressly assume all such rights and obligations as of the Effective Date.
4. BUYER hereby assumes all rights, title, interest, burdens and obligations of SELLER under the Development Agreement, and agrees to observe and fully perform all of the duties and obligations of SELLER under the Development Agreement. BUYER agrees that BUYER shall comply with all the provisions of the Development Agreement and with all City rules, regulations and policies regarding the Subject Property which are applicable to the Development Agreement.
5. SELLER hereby assigns to BUYER all of SELLER’s rights and obligations pertaining to PFE Credits and Plan Area Fee Credits as set forth in Exhibit B. BUYER, its successors and assigns hereby expressly assume all such rights and obligations pertaining to the PFE Credits and Plan Area Fee Credits as set forth in Exhibit B.
6. All of the covenants, terms and conditions set forth herein shall be binding upon and shall inure to the benefit of the parties hereto and to their respective heirs, successors and assigns.
7. As provided in Section 1.9 of the Development agreement, this Transfer Agreement shall not be effective unless and until approved in writing by the City Manager, which approval shall be assumed if Developer does not receive written response containing the City Manager’s approval or disapproval within ten (10) days of SELLER’s written request .
8. This Transfer Agreement may be executed in one or more counterparts. All counterparts so executed shall constitute one agreement, binding on all parties, even though all parties, even though all parties are not signatory to the same counterpart. The parties authorize each other to detach and combine, or cause to be detached and combined, original signature pages and consolidate them into a single identical original for recordation of this Agreement in the Official Records of Placer County, California.
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Exhibit D
1533536.2 6
IN WITNESS WHEREOF, the parties hereto have executed this Transfer Agreement as of the date and year first-above written.
SELLER:
_____________________________,
a ___________________________
By:
Name:
Title:
BUYER:
____________________________,
a _____________________
By:
Name:
Title:
226
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Exhibit D
1533536.2 EXHIBIT A
EXHIBIT A
LEGAL DESCRIPTION OF SUBJECT PROPERTY
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Exhibit D
1533536.2 EXHIBIT A
EXHIBIT B
PFE CREDITS ALLOCATED TO SUBJECT PROPERTY
NON-CRITICAL PFE FEE CREDITS IN
DOLLARS
EDU
CREDITS
Recorded
Final Map
No. of
Acres
Water
Wastewater
Transportation
Drainage
Sewer
Connection
s
$ .00 $ .00 $ .00 $ .00 0.00
$ .00 $ .00 $ .00 $ .00 0.00
$ .00 $ .00 $ .00 $ .00 0.00
NOTE: The transfer of sewer connections are based on the number of EDU, not a specific dollar amount. The sewer connections will be applied to building permits per the EDU factors identified in the PFE Program.
VERIFICATION
The City of Lincoln hereby verifies that the PFE Credits listed above are currently owned by BUYER and available for transfer to SELLER.
By:
Name:
Title: Director
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Exhibit E
DRAFT
Exhibit E
Exactions Applicable to Project
City of Lincoln Building Permit and Miscellaneous Fees
Building Permit Fee [1]
Plan Check Fee
Energy Plan Check & Inspection Fee
Incremental Fee
California Building Standards Commission (CBSC) Fee
Strong Motion
Instrumentation Fee
Water Use Fee Water
Meter Fee Park Tax
Building Occupancy Fee
Cemetery Fee
Refuse Container Community Benefits Fee
Public Facilities Element (PFE Fees)
City Water
Connection Fee
Drainage Impact Fee Sewer Connection
Fee Traffic Mitigation Fee
Community Services Fee
Plan Area Fees Potable Water Drainage
Wastewater Roadways Nonpotable
Water
Frontage Landscaping
Neighborhood Parks Land Acquisition
Neighborhood Parks Development Regional Park
Land Acquisition Trails
County and Regional Fees
Placer County Capital Facilities Impact Fee
South Placer Regional Transportation Authority Tier I (SPRTA) South Placer Regional Transportation Authority Tier II (SPRTA) Placer County Water Agency (PCWA) Zone 1 Water Connection Charge Western Placer Unified School District
Source: City of Lincoln; Western Placer Unified School District; South Placer Regional Transit Authority; Frayji Design Group; and EPS.
[1] Does not include electrical, plumbing, and mechanical permitting fees. 229
Stardust Development Agreement
Exhibit F
1533537.2
RECORDING REQUESTED BY
AND
WHEN RECORDED, MAIL TO:
_______________________________
_______________________________
_______________________________
Attn:
__________________________
(SPACE ABOVE THIS LINE RESERVED FOR
RECORDER'S USE)
PFE FEE CREDIT TRANSFER AGREEMENT
THIS PFE FEE CREDIT TRANSFER AGREEMENT (herein, this “PFE Transfer Agreement’) is entered into as ____________of____________,20_______, by _________and _____between __________________, a ______________(“Transferor”) _____and__________, a______________(“Transferee”).
RECITALS
A. TRANSFEROR agrees to convey to TRANSFEREE certain PFE Fee Credits identified in Exhibit A, applicable to PFE projects included in the Lincoln Village 1 Infrastructure and Public Facilities Financing Plan (“PFE Credits”).
B. Exhibit A is attached hereto and incorporated by reference.
C. TRANSFEROR and TRANSFEREE are executing and recording this PFE Transfer Agreement pursuant to Sections 4.2.7 of their respective development agreements.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, TRANSFEROR and TRANSFEREE agree as follows:
1. TRANSFEROR hereby assigns to TRANSFEREE all of TRANSFEROR’s rights pertaining to PFE Credits as set forth in Exhibit A.
2. TRANSFEREE, its successors and assigns hereby expressly assume all such rights pertaining the PFE Credits as set forth in Exhibit A.
3. All of the covenants, terms and conditions set forth herein shall be binding upon and shall inure to the benefit of the parties hereto and to their respective heirs, successors and assigns.
4. This Transfer Agreement may be executed in one or more counterparts. All counterparts so executed shall constitute one agreement, binding on all parties, even though all 230
Stardust Development Agreement
Exhibit F
1533537.2
parties, even though all parties are not signatory to the same counterpart. The parties authorize each other to detach and combine, or cause to be detached and combined, original signature pages and consolidate them into a single identical original for recordation of this Agreement in the Official Records of Placer County, California.
IN WITNESS WHEREOF, the parties hereto have executed this PFE Transfer Agreement as of the date and year first-above written.
TRANSFEROR:
_____________________________,
a ___________________________
By:
Name:
Title:
TRANSFEREE:
____________________________,
a _____________________
By:
Name:
Title:
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Stardust Development Agreement
Exhibit F
1533537.2
EXHIBIT A
PFE FEE CREDITS TRANSFERRED
NON-CRITICAL PFE FEE CREDITS
Recorded
Final
Map
No. of
Acres
Water
Wastewater
Transportation
Drainage
$ .00 $ .00 $ .00 $ .00
$ .00 $ .00 $ .00 $ .00
$ .00 $ .00 $ .00 $ .00
VERIFICATION
The City of Lincoln hereby verifies that the PFE Credits listed above are currently owned by TRANSFEREE and available for transfer to TRANSFEROR.
By:
Name:
Title: Director of Support Services
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Exhibit G
1536606.2 13583-026 Village 1 PFE Fee Credit Agmt Form (draft 1-20-17) 12
CITY OF LINCOLN
PUBLIC FACILITIES ELEMENT (PFE) FEE CREDIT/REIMBURSEMENT
AGREEMENT
VILLAGE 1
[LIST CONSTRUCTING OWNER HERE] [LIST FACILITY HERE]
This PFE Fee Credit Agreement (the “Agreement”) is entered into by and between the City of Lincoln (hereinafter the “City”) and ___________________________ a________________, and/or its successors in interest, (hereinafter the “Constructing Owner”) as of the day of__________________________ , 20 ____(the “Effective Date”).
RECITALS
WHEREAS, Constructing Owner is developing the ___________________________ development (the “Project”), including PFE improvements that will serve the Project and other areas of the City; and,
WHEREAS, on September 13, 2016, the City Council of City of Lincoln adopted Resolution 2016- 181, which approved the Village 1 Exh Plan for the Specific Plan Area (the “IFP”). The IFP includes the required construction of the PFE facilities and established provisions associated with PFE Fee Credits within the Village 1 Specific Plan Area (the “Plan Area”); and WHEREAS, Constructing Owner is required, as a condition of development of the Project per the IFP, or has otherwise agreed (with City’s approval), to construct or cause to be constructed the PFE facilities and improvements described in Exhibit A hereto, which are included within the improvement plans titled ________________________________, date ___________, 20 (hereinafter the “PFE Facilities”); and
WHEREAS, City and Constructing Owner have previously entered into a Development Agreement dated ______________________, 20 (and, as may be amended, herein referred to as the “DA”), which contains provisions governing the terms for PFE Fee Credits, and which are not intended to be amended in any way by this Agreement; and WHEREAS, administration of the City’s PFE Fee Program will be the responsibility of the City’s Director of Support Services, or their designee (the “Administrator”); and WHEREAS, City has agreed to allow Constructing Owner to execute a contract to design and construct the PFE Facilities; and
WHEREAS, Constructing Owner has entered into a contract with (name of Contractor) for construction of the PFE Facilities (the “Construction Contract”); and WHEREAS, City and Constructing Owner desire to enter into an agreement to provide for allowable reimbursements from the Village 1 Non -Critical Component of the PFE Fees (the “Village 1 PFE Pool”), as defined and described in IFP and the City’s Public F acilities Element Implementation Plan and Policies (the “PFE Policy”), by the City to Constructing Owner for certain costs of design and construction of the PFE Facilities, which PFE Fee Credits may, at Constructing Owner’s discretion, be applied as credits against the Non-Critical Component of the specific PFE 233
Stardust Development Agreement
Exhibit G
1536606.2 13583-026 Village 1 PFE Fee Credit Agmt Form (draft 1-20-17) 13
Fees (the “PFE Fee Credits”) by the Constructing Owner or their transferee; and WHEREAS, this Agreement will not apportion any PFE Fee Credits that Constructing Owner may elect to apply as PFE Fee Credits to any particular real property. Such apportionment shall be accomplished at Constructing Owner’s discretion to any portion or portions of the Constructing Owner’s Property as described herein;
NOW, THEREFORE, in consideration of the mutual promises contained herein, City and Constructing Owner agree as follows:
SECTION 1. DEFINITIONS
All terms not otherwise described herein shall have the meaning described thereto in the PFE Policy, IFP and DA.
SECTION 2. PURPOSE OF THE AGREEMENT
This Agreement is not intended to modify or amend in any way the rights and obligations defined in the PFE Policy, the IFP or the DA related to the construction of PFE projects and earned PFE Fee Credits. The purpose of the Agreement is to specify the PFE Facilities, the related earned PFE Fee Credits and the options available to the Constructing Owner in regards to application of earned PFE Fee Credits.
SECTION 3. CONSTRUCTION OF PFE FACILITIES
Constructing Owner shall complete construction of the PFE Facilities in accordance with the plans and specifications approved by the City Engineer, and in accordance with City improvement standards and this Agreement. Constructing Owner understands and acknowledges that the terms and conditions contained in any contract that Constructing Owner has or may execute with any contractors or material suppliers regarding the construction of the PFE Facilities shall have no force or effect upon this Agreement. Constructing Owner is solely responsible for all contract payment obligatio ns and may not rely upon reimbursement under the Village 1 PFE Pool for purpose of payment to contractors.
SECTION 4. BONDS
A. Constructing Owner has posted the following securities for the PFE Facilities in favor of the City in the amounts and forms acceptable to the City Attorney:
1. To secure faithful performance in the construction of the PFE Facilities, security in an amount equal to one hundred (100%) percent of the estimated cost of the work in the Preliminary Engineer’s Estimate (see Exhibit A), including but not limited to cost of the PFE Facilities, engineering, inspection, fees and incidental expenses, as determined by the City Engineer.
2. To secure payment to the contractor, subcontractors, and to persons furnishing labor, materials, or equipment to them, security in an amount equal to one hundred (100%) percent of the estimated cost of the work in the Preliminary Engineer’s Estimate (see 234
Stardust Development Agreement
Exhibit G
1536606.2 13583-026 Village 1 PFE Fee Credit Agmt Form (draft 1-20-17) 14
Exhibit A), including but not limited to cost of the PFE Facilities, engineering, inspection, fee and incidental expenses, as determined by the City Engineer.
3. If applicable, to secure payment of the cost of setting of monuments, security in an amount equal to one hundred (100%) percent of the estimated costs of setting such monuments as determined by the City Engineer.
B. To secure the guarantee and warranty of the work for a period of one (1) year following the completion and acceptance of the PFE Facilities, security in an amount equal to fifteen (15%) percent of the actual cost of the work performed, including but not limited to cost of the PFE Facilities, engineering, inspection, fees and incidental expenses, as determined by the City Engineer shall be filed with the City prior to the final acceptance of the PFE Facilities by the City.
C. If security is furnished in the form of a bond or bonds, such bonds shall be executed by a corporate surety company authorized to transact surety business in the State of California.
D. If Constructing Owner shall fail or neglect to comply with the provisions of this Agreement, the C ity shall have the right at any time to cause said provisions to be met by any lawful means, and thereupon recover from the Constructing Owner and/or his/her surety the full cost and expense incurred.
SECTION 5. EARNED PFE FEE CREDITS
City and Constructing Owner agree that the amount of PFE Fee Credits earned to the Constructing Owner hereunder shall be as set forth on Exhibit B hereto and made a part hereof, which shall indicate if the PFE Facilities are subject to a final “true up” as described in section 9 of this Agreement. A “true up” would include the reconciliation of actual costs, for both “hard costs” and “soft costs”, through the documents as required in Section 8. “Hard Costs” could include the costs of (i) construction of the PFE Facilities, based on the price included in the Construction Contract and actually paid to the contractor for the construction of the PFE Facilities, (ii) traffic control, staging and storm water pollution prevention implementation measures (i.e., structural BMPs) related to such construction, and (iii) habitat mitigation required as a mitigation measure in connection with the construction of such PFE Facilities. Hard Costs shall include the costs of any changes in scope or standards required by the City during the course of construction thereof that are added to the Construction Contract. “Eligible Hard Costs” means all of the Hard Costs incurred by the Constructing Owner to construct the PFE Facilities, except to the extent the Administrator, in consultation with the City Engineer excludes costs found to be commercially unreasonable. Evidence that costs are based on a properly bid construction contract shall be prima facie evidence that costs are commercially reasonable. In no event shall the PFE Fee Credits exceed the amou nts actually paid for Eligible Hard Costs.
Construction Owner shall provide documentation as required by the Administrator, which may include but is not limited to proof of payment and lien releases from all contractors, subcontractors, and suppliers for all costs for which it seeks reimbursement or credit under this Agreement. “Soft Costs” could include the costs of planning, design and financing of the PFE Facilities construction project, storm water pollution prevention monitoring & management (i.e., non - structural BMPs), engineering, inspection, geotechnical oversight and monitoring, testing, 235
Stardust Development Agreement
Exhibit G
1536606.2 13583-026 Village 1 PFE Fee Credit Agmt Form (draft 1-20-17) 15
surveying, outside agency review fees, and bonding related to the construction of the PFE Facilities. “Eligible Soft Costs” means all of the Soft Costs incurred by the Constructing Owner to construct the PFE Facilities, except to the extent the Administrator, in consultation with the City Engineer excludes costs found to be commercially unreasonable. Evidence that costs are based on a properly bid contracts shall be prima facie evidence that costs are commercially reasonable. In no event shall the PFE Fee Credits exceed the amounts actually paid for Eligible Soft Costs.
Construction Owner shall provide documentation as required by the Administrator, which may include but is not limited to proof of payment and lien releases from all contractors, subcontractors, and suppliers for all costs for which it seeks reimbursement or credit under this Agreement.
PFE Fee Credits related to the construction of PFE Facilities subject to a final “true up” shall be equal to the Eligible Hard Costs and Eligible Soft Costs (collectively, the “Total Eligible Costs”) and shall be set forth on Exhibit B upon execution of this Agreement.
In the event of any disagreement between the Constructing Owner and the Administrator and City Engineer on the initial calculation of the Total Eligible Costs, if all other conditions to the entry of this Agreement have been satisfied, the Constructing Owner may elect to enter this Agreement without having the amount of the Total Eligible Costs resolved and listed on Exhibit B.
In such case, Constructing Owner’s right hereunder to apply any portion of the PFE Fee Credits (or the disputed amount thereof) will be deferred until such disagreement is resolved by the Constructing Owner and the City. If the Constructing Owner, the Administrator and the City Engineer are unable to resolve any disputed amounts after the parties have engaged in good faith meetings and exchange of documents in support of their positions, the appeal provisions in Section 30 of this Agreement shall apply. The parties shall use their best efforts to resolve any such dispute within sixty (60) days of the cost document submission by the Constructing Owner.
Pending the resolution of any such dispute, the Constructing Owner shall pay any and all required PFE Fees and City shall retain any PFE Fees paid by the Construction Owner after the Effective Date of this Agreement for potential refund upon resolution of such PFE Fee Credit dispute. The amount of PFE Fee Credits retained pending resolution of any PFE Fee Credit dispute shall not exceed the disputed amount. Upon resolution of any PFE Fee Credit dispute, and within twenty (20) business days of resolution of the PFE Fee Credit dispute, the Administrator shall amend Exhibit B to provide the final amount of the PFE Fee Credits allowed hereunder.
Constructing Owner shall then have thirty (30) calendar days after receipt of the completed Exhibit B to retroactively apply any portion of such PFE Fee Credit to the Constructing Owner’s intervening development of the Project and obtain an equivalent refund of PFE Fees collected and retained from the Constructing Owner after the Effective Date of this Agreement pending the resolution of the PFE Fee Credit dispute. If Constructing Owner does not elect within such time to have any of the PFE Fee Credits applied to the Constructing Owner’s intervening development of the Project, then any PFE Fee Credits previously collected and retained from the Constructing Owner during such period shall remain eligible for future application or reimbursement.
SECTION 6. PFE FEE CREDITS - APPLICATION, REIMBURSEMENT OR
TRANSFER
PFE Fee Credits earned by the Constructing Owner; (1) may be applied towards PFE fees related to the Constructing Owner’s Property in accordance with the PFE Policy, (2) may be 236
Stardust Development Agreement
Exhibit G
1536606.2 13583-026 Village 1 PFE Fee Credit Agmt Form (draft 1-20-17) 16
requested for reimbursement from the Village 1 PFE Pool, or (3) may be transferred to another landowner within the Plan Area.
SECTION 7. PRIORITY FOR REIMBURSEMENT PAYMENT FOR PFE FEE
CREDITS
The priority of reimbursement payments for PFE Fee Credits shall be on a Calendar -Year Priority basis, as described in the IFP. As provided in the IFP, a constructing entity (herein defined as a Constructing Owner) achieves a given Calendar -Year Priority when it has a fully executed PFE Fee Credit Agreement and has expended at least 30 percent of the Eligible Hard Costs for the PFE Facilities included in such agreement. Based on the estimated schedule for construction of the PFE Facilities, the parties anticipate that Constructing Owner will complete 30% of the Eligible Hard Costs of the PFE Facilities, which 30% completion will establish the Calendar-Year Priority for a potential reimbursement hereunder, by Calendar-Year 20 . Constructing Owner shall notify the City upon expenditure of 30% of the Eligible Hard Costs of the PFE Facilities and, subject to confirmation thereof by the Administrator and the City Engineer, the City shall provide written notice to Constructing Owner of the Calendar-Year Priority. City shall provide Constructing Owner with the written notice required herein within 30 calendar days of the receipt of the written notification by the Constructing Owner of the expenditure of 30% of the Eligible Hard Costs.
Requested reimbursements for PFE Fee Credits shall be paid out first on the PFE Fee Credit Agreement(s) with the earliest Calendar -Year Priorities, until paid in f ull (i.e., a PFE Fee Credit Agreement with an earlier Calendar-Year Priority shall receive all available funds in the Village 1 PFE Pool until paid in full prior to any reimbursements being paid pursuant to a PFE Fee Credit Agreement with a later Calendar-Year Priority. If two or more PFE Fee Credit Agreements have the same Calendar -Year Priority (“Equal -Priority Agreements”), after payment in full on any reimbursement for an earlier Calendar -Year Priority, the reimbursements on such Equal -Priority Agreements shall be paid out pro rata, based on the relative amount of then requested reimbursements due thereunder at the time of such payment. For example, if at the time of payment of any reimbursement hereunder, another constructing owner was requested reimbursements pursuant to PFE Fee Credit Agreement with the same Calendar-Year Priority as this Agreement, then such payment would be divided between the Constructing Owner and the other constructing owner in proportion to the relative amounts of reimbursements then requested under the respective Agreements.
In accordance with the applicable Calendar -Year Priorities, the reimbursement hereunder shall be paid to Constructing Owner when the PFE Facilities are completed as determined by the City Engin eer (“Completion”) and accepted by the City in writing, or such earlier date after Completion that the City Engineer deems appropriate. The reimbursement shall be paid by the City as fee revenues from the Village 1 PFE Pool are collected within the Plan Area. After Completion of the PFE Facilities, such payments shall be made by the City at least quarterly throughout the year as funds become available.
The obligation arising from this Agreement is not a debt of the City, nor a legal or equitable pledge, charge, lien, or encumbrance, upon any of its property, or upon any of its income, receipts, or revenues, and is payable only and solely from the Village 1 PFE Pool.
SECTION 8. TRANSFER OF PFE FEE CREDITS
237
Stardust Development Agreement
Exhibit G
1536606.2 13583-026 Village 1 PFE Fee Credit Agmt Form (draft 1-20-17) 17
PFE Fee Credits are personal to Constructing Owner and do not run with the Project that is generating such credits. Provided the Constructing Owner has no outstanding monetary obligation to the City within the Project Area, Constructing Owner may, at its sole option and discretion, assign the rights to PFE Fee Credits, including the right to request reimbursements against the Village 1 PFE Pool, to any other landowner within the Plan Area, subject to the conditions and limitations herein regarding the application of such PFE Fee Credits.
If Constructing Owner has an outstanding monetary obligation to the City as noted above, then the City may require the monetary obligation to be met before transfer of the PFE Fee Credit owned by Constructing Owner. Any assignment of the rights to PFE Fee Credits shall be made in writing and delivered to the Administrator in the form attached hereto as Exhibit C. Assigned PFE Fee Credits carry the same priority the assignor had in the credits.
SECTION 9. “TRUE UP” OF PFE FEE CREDITS
Upon completion of the PFE Facilities by the Constructing Owner and acceptance thereof by the City, the final determination of actual Eligible Hard Costs upon which the PFE Fee Credits amount is based shall be determined by the Administrator, in consultation with the City Engineer, based on documentation thereof provided by Constructing Owner to the Administrator’s and City Engineer’s reasonable satisfaction. For construction change orders to be given consideration for reimbursement, the Constructing Owner must:
• Present the change order request and estimated cost along with supporting information to the Administrator and City Engineer; and
• Fully document any work performed under a change order to verify all associated costs.
Failure to comply with any of these procedures may result in the ineligibility of the requested change order for such PFE Fee Credits.
To secure final PFE Fee Credits, Constructing Owner shall provide the following items to the Administrator and City Engineer in order for each to determine the actual Eligible Hard Costs and Eligible Soft Costs incurred by Constructing Owner for the PFE Facilities that qualify for PFE Fee Credits:
(1) Copies of the original Construction Contract and any change orders that have been agreed to by the Constructing Owner, contractor, and the City. The portion of each change order associated with the PFE Facilities must be itemized separately; (2) Copies of all invoices, with unconditional lien releases, submitted by the contractor and suppliers;
(3) Copies of all checks issued by the Constructing Owner with related invoices indicated;
(4) A summary tabulation of all contractor and supplier invoices and Constructing Owner payments; and
238
Stardust Development Agreement
Exhibit G
1536606.2 13583-026 Village 1 PFE Fee Credit Agmt Form (draft 1-20-17) 18
(5) Prevailing Wage Certification, or documentation acceptable to the City Attorney of an exception to the applicability of prevailing wage.
If, when the final reconciliation of Total Eligible Costs for the PFE Facilities is conducted by the Administrator, the actual Total Eligible Costs for the PFE Facilities exceeds the amount of PFE Fee Credits initially provided hereunder, the Administrator shall review items (1) through above and determine if the actual Total Eligible Costs will serve as the basis for determination of the amount of the PFE Fee Credits earned by the Constructing Owner should be increased above the amount described in Exhibit B of this Agreement. The Administrator, in consultation with the City Engineer, shall determine how much of the actual construction costs should be included in any increase to the Total Eligible Costs and Exhibit B shall be adjusted accordingly.
If the final reconciliation determines that Total Eligible Costs are less than the amount of PFE Fee Credits initially provided hereunder, the Administrator shall notify the Constructing Owner of such reduction of the PFE Fee Credits and Exhibit B shall be revised accordingly. If the amount of PFE Fee Credits applied towards the PFE Fees exceeds the final amount of Total Eligible Costs that supported such PFE Fee Credits, then the Constructing Owner shall repay the amount of the PFE Fee Credits that were ap plied in excess of the confirmed Total Eligible Costs within sixty (60) calendar days of receipt of notice from the Administrator of the amount to be repaid.
In no event shall PFE Fee Credits exceed the amounts actually paid by Constructing Owner for Total Eligible Costs. Any determination by the Administrator and City Engineer under this Section shall be subject to the appeal rights set forth in Section 30 of this Agreement.
SECTION 10. FAILURE TO COMPLETE CONSTRUCTION.
Failure to complete work within the scope of this Agreement may affect the Calendar -Year Priority Status for the reimbursement hereunder, may result in termination of the PFE Fee Credits and termination of the right to apply PFE Fee Credits, and may require repayment of any PFE Fee Credits applied, as deemed appropriate by the Administrator. In connection therewith, the Administrator may determine that the Constructing Owner shall not be entitled to further PFE Fee Credits until completion of the PFE Facilities as determined by the City Engineer. A change in the Calendar-Year Priority for any reimbursement will be evaluated from the previously determined Calendar-Year Priority to the date of completion, which may affect priority for the reimbursement.
Any determination by the Administrator and City Engineer to invoke the provisions of this Section shall be subject to the appeal rights set forth in Section 30 of this Agreement.
SECTION 11. INSPECTION
City and its authorized representatives shall, at all times have access to the construction site during construction of the PFE Facilities and Constructing Owner shall furnish City with all reasonable information necessary for ascertaining full knowledge of the PFE Facilities with respect to the progress, workmanship, and character of materials and equipment used and employed in the work.
Whenever the contractors retained by Constructing Owner vary the normal period during which work or any portion of it is carried out on each day, Constructing Owner shall give timely 239
Stardust Development Agreement
Exhibit G
1536606.2 13583-026 Village 1 PFE Fee Credit Agmt Form (draft 1-20-17) 19
notice to the City Engineer so that if he or she wishes, be present to observe the work in progress. If Constructing Owner fails to give such timely notice, any work done in the absence of the City representative will be subject to rejection. Constructing Owner shall give timely notice to the City Engineer in advance of backfilling or otherwise covering any part of the work so that the City’s representative may, if he or she wishes, observe the work before it is concealed.
Notwithstanding any provision to the contrary, all PFE Fac ilities shall be subject to City inspection for compliance with City requirements prior to issuance of a Letter of Acceptance by the City Engineer. Observation of the work or inspection by the City shall not relieve Constructing Owner or its sureties of full responsibility for defective materials or workmanship or any of its obligations to complete construction in accordance with the plans and specifications approved by the City Engineer.
SECTION 12. COMPLIANCE WITH PREVAILING WAGE LAWS
Unless otherwise authorized by City Charter, City ordinance, or applicable State statutory or common law, pursuant to the provisions of Articles 1 and 2 of Chapter 1, Part 7, Division II of the Labor Code of the State of California (Labor Code Sections 1720 et seq . (“Prevailing Wage Laws”)), all work shall be performed in compliance which the Prevailing Wage Laws and not less than the general prevailing rate of per diem wages, and not less than the general prevailing rate of per diem wages for holidays and overtime work, for each craft, classification or type of worker needed to execute the work contemplated under this Agreement shall be paid to all workers, laborers, and mechanics employed in the execution of said work by the Constructing Owner or the Constructing Owner’s contractor, or by any subcontractor doing or contracting to do any part of said work. The appropriate determination of the Director of the California Department of Industrial Relations shall be filed by the Constructing Owner with, and made available for inspection at the office of the City Clerk.
Constructing Owner shall require all contractors to register with the Department of Industrial Relations in accordance with Labor Code section 1725.5. Constructing Owner shall require its contractor to post, at each jobsite, a copy of such prevailing rate of per diem wages as determined by the Director of the California Department of Industrial Relations. No PFE Fee Credits shall be permissible without full compliance with the Prevailing Wage Laws.
SECTION 13. INSURANCE
Constructing Owner shall require its contractor to carry and maintain for three (3) years after City Acceptance of the PFE Facilities, such public liability, property damage and contractual liability, auto, Workers’ Compensation, Builders’ Risk Insurance and other insurance coverage as required by the City in accordance with the improvement plan specifications for the PFE Facilities.
The contractor shall name the City as an additional insured. For any claims related to the PFE Facilities, the contractor’s general liability and automobile insurance coverage shall be primary insurance in their coverage of the City and its officers, officials, employees, agents, or volunteers, and any insurance or self -insurance maintained by the C ity, its officers, officials, employees, agents or volunteers shall be excess of the contractor’s insurance and shall not contribute with it.
SECTION 14. ACCEPTANCE AND CONVEYANCE OF FACILITIES
240
Stardust Development Agreement
Exhibit G
1536606.2 13583-026 Village 1 PFE Fee Credit Agmt Form (draft 1-20-17) 20
Once Constructing Owner has completed construction of the PFE Facilities and the PFE Facilities are deemed satisfactory by the City Engineer following City inspection, the City Engineer may recommend that City Council accept the PFE Facilities, including all associated easements and offers of dedication, provided that all liens, claims and encumbrances in connection with the PFE Facilities have been released and the required warranty bond has been provided to the City. No acceptance shall be valid without the Constructing Owner conveying and vesting full, complete and clear title in said PFE Facilities to the City at the time of acceptance.
SECTION 15. LIENS, CLAIMS, AND ENCUMBRANCES
Prior to the City’s acceptance of any PFE Facilities, Constructing Owner shall clear any and all liens, claims and encumbrances from said Facility as a condition of acceptance by the City.
SECTION 16. DELIVERY OF AS-BUILT PLANS AND SPECIFICATIONS Prior to acceptance of PFE facilities by City, Constructing Owner shall deliver to City copies of all as -built plans (if any), specifications, operating manuals, service manuals, warranties and other documents relating to the design, construction, and operation of the PFE Facilities described in this Agreement. Upon acceptance of the PFE Facilities, City shall file Notice of Completion with Placer County.
SECTION 17. INDEMNIFICATION
The Constructing Owner, by execution of this Agreement, specifically agrees to protect and assume the defense of, indemnify and hold harmless City and its elected representatives, officers, employees, agents and consultants (the “Indemnitees”), from and against all liabilities, actions, lawsuits, damages, claims, losses, or expenses of every type and description, including attorneys’ and consultants’ fees and expenses, (collectively, “Liabilities”), to which they may be subjected or put, by reason of or resulting from the design, construction, or installation of the PFE Facilities, except to the extent the Liabilities arise from the sole negligence, or willful misconduct of City and/or the Indemnitees. This indemni fication shall extend to Liabilities occurring after this Agreement is terminated as well as while it is in force. Notwithstanding the foregoing, following the acceptance of the improvements by City, or if there is an applicable warranty, following the end of any applicable warranty period, the Constructing Owner shall not be obligated to indemnify the Indemnitees for Liabilities to the extent that such Liabilities arise from Indemnitees’ active or passive negligence following acceptance of the PFE Facilities.
SECTION 18. THIRD PARTY LIABILITY
City does not assume any liability, duty or obligation to Constructing Owner’s contractors, subcontractors, agents or any person or entity not a party to this Agreement by execution or performance of this Agreement, and no contractors, subcontractors, agents or any parties are third party beneficiaries of this Agreement.
SECTION 19. WARRANTY
Constructing Owner hereby warrants the PFE Facilities as to materials, design and workmanship and should any defect or failure of the PFE Facilities, or any parts thereof, occur 241
Stardust Development Agreement
Exhibit G
1536606.2 13583-026 Village 1 PFE Fee Credit Agmt Form (draft 1-20-17) 21
within a period of one (1) year after final acceptance by City, Constructing Owner shall promptly cause the needed repairs to be made without any expense or cost to the City. Final acceptance shall be deemed to have occurred under this Agreement when the PFE Facilities have been accepted by the City pursuant to a written acceptance from the City Engineer, and is placed into actual service.
City shall provide written notification to Constructing Owner of final acceptance by the City.
City is hereby authorized to make repairs if Constructing Owner fails to make, or undertake with due diligence, the aforesaid repairs within twenty (20) calendar days after it is given written notice of such defect or failure. In case of emergency, where in the opinion of the City Engineer delay may cause serious hazard to the public, the necessary repairs may be made by the City without prior notice to Constructing Owner. All costs of the repair, if not paid by the Constructing Owner within twenty (20) calendar days of notice from the Administrator to the Constructing Owner, shall be paid out Warranty Bond. In no event shall the City be responsible for the cost of the repair within the warranty period. In all cases of defect or fai lure within the warranty period where the City has taken action in accordance with this paragraph, Constructing Owner shall promptly reimburse City and, if applicable, the Warranty Bond shall fund the repair for any and all costs or expenses, direct or indirect, incurred by the City. The foregoing is in addition to, and shall not in any way limit or affect, the rights of the City to enforce the warranty obligations of Constructing Owner hereunder and to recover any and all costs thereof from the warranty bond posted thereby.
SECTION 20. BINDING ON SUCCESSORS AND ASSIGNS
Each and every provision of this Agreement shall be binding upon and shall inure to the benefit of the respective successors and assigns of the parties hereto, in the same manner as if such parties had been expressly named herein.
SECTION 21. AUTHORITY TO ENTER INTO AGREEMENT
Constructing Owner and City certify that they have the authority and are legally empowered to enter into this Agreement on behalf of their entity and to bind their party to the performance of its obligations hereunder.
SECTION 22. NOTICES
Any notices, requests, demands or other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given on the date of service if served personally (FedEx and similar services, each of which is hereinafter called an “Express Courier,” shall be considered to be personal service) or by telephone facsimile or other electronic transmission (provided that the sender of a telephone facsimile or other electronic transmission has received confirmation of successful transmission by the sending fax machine), and upon receipt, if mailed to the party to whom notice is to be given, by first-class mail, registered or certified, postage prepaid, return receipt requested, and properly addressed as follows:
(a) If to City:
City of Lincoln
Attn: Director of Support Services / Administrator 600 Sixth Street 242
Stardust Development Agreement
Exhibit G
1536606.2 13583-026 Village 1 PFE Fee Credit Agmt Form (draft 1-20-17) 22
Lincoln, CA 95648
Telephone: (916) 434-2400
Facsimile: (916) _______________
With a copy to:
City of Lincoln Attn: City Engineer 600 Sixth Street
Lincoln, CA 95648
Telephone: (916) 434-2400
Facsimile: (916) __________
(b) If to Constructing Owner:
[fill in notice information for Constructing Owner]
Either party may change its mailing address at any time by giving written notice of such changes to the other party in the manner provided herein.
SECTION 23. NOTICE OF CONTRACTORS
Constructing Owner shall provide a copy of this Agreement to any contractors, subcontractors, or other parties performing work on the PFE Facilities, prior to commencement of construction by said party.
SECTION 24. TERM
The term of this Agreement shall start on the day and year duly executed by all parties and shall remain in effect until all the terms and conditions contained in this Agreement have been satisfied.
SECTION 25. SEVERABILITY
If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining portions hereof shall not in any way be affected or impaired thereby.
SECTION 26. CONFLICTS
This agreement is intended to implement and be consistent with the requirements of the PFE Policy. Therefore, in the event of any conflicts between the PFE Policy and this Agreement, the requirements of the PFE Policy shall prevail and control.
SECTION 27. EXHIBITS
The Exhibits attached hereto are hereby incorporated herein by this reference.
SECTION 28. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding of the parties regarding the subject matter hereof. The Agreement may be amended only by writing executed by both parties. 243
Stardust Development Agreement
Exhibit G
1536606.2 13583-026 Village 1 PFE Fee Credit Agmt Form (draft 1-20-17) 23
SECTION 29. RIGHT OF APPEAL
Constructing Owner may appeal any final determination by the Administrator and/or City Engineer to the City Manager and thereafter to the City Council. Prior to submitting the matter to the City Council, the City Manager may, in his/her discretion, elect to engage the services of a mediator to attempt to mediate the dispute in a non-binding fashion, not to exceed a total of thirty calendar days. Any decision of the City Council shall be final with no right of further appeal or action thereafter.
SECTION 30. EFFECTIVE DATE
The City’s execution of this Agreement shall be contingent upon confirmation by the Administrator, in co nsultation with the City Engineer, that (i) a Construction Contract has been properly bid and entered into for construction of the PFE Facilities, (ii) performance and payment bonds have been posted in form and amount required by the City, and (iii) a Notice to Proceed has been given to the contractor for the PFE Facilities. The date of such execution by the City, based in part on the City’s confirmation of the satisfaction of the foregoing conditions, shall be deemed to be the “Effective Date” of this Agreement. Upon execution of this Agreement by the City, the City shall insert the Effective Date in the Preamble to this Agreement and provide a copy of this fully executed and dated Agreement to Constructing Owner. [SIGNATURE PAGE FOLLOWS]
244
Stardust Development Agreement
Exhibit G
1536606.2 13583-026 Village 1 PFE Fee Credit Agmt Form (draft 1-20-17) 13
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above-written.
CITY:
CITY OF LINCOLN,
a municipal
corporation
CONSTRUCTING OWNER:
(INSERT CONSTRUCTING OWNER
SIGNATURE BLOCK)
By:
Its: City Manager a
ATTEST:
By:
Its: City Clerk
APPROVED AS TO CONTENT:
By:
Name:
Title:
Date:
By:
Its: City Engineer
APPROVED AS TO CONTENT:
By:
Its: Director of Support Services
APPROVED AS TO FORM:
By:
Its: City Attorney
245
Stardust Development Agreement
Exhibit G
1536606.2 13583-026
14 EXHIBIT A
PFE FACILITIES AND IMPROVEMENTS
(Including Preliminary Engineer’s Estimate of Facility Costs)
(to be attached)
246
Stardust Development Agreement
Exhibit G
1536606.2 13583-026
15 EXHIBIT B
IDENTIFICATION OF PFE FEE CREDITS VILLAGE 1 PLAN AREA
[Insert Name of Constructing Owner Here]
[List Facility Here]
Date of Agreement: , 20
PFE Fee Credits: $
Value in PFE Reconciled
Project List “True Up” Costs
PFE Fee Credits Based Upon:
247
Stardust Development Agreement
Exhibit G
1536606.2 13583-026
16 EXHIBIT C
FORM OF CERTIFICATE OF
ASSIGNMENT AND TRANSFER
OF PFE FEE CREDITS
The undersigned Constructing Owner, as the holder of certain PFE Fee Credits related to the PFE Fee Credits Agreement between Constructing Owner and the City of Lincoln, dated
(the “Agreement”), and with a Calendar-Year
Priority of 20 , hereby assigns, transfers and conveys to the undersigned Assignee the PFE Fee Credits as indicated below:
Constructing Owner’s Legal Name:
Assignee’s Legal Name:
[Detailed list of PFE Fee Credits descriptions and amounts]
$
$
$
$
CONSTRUCTING OWNER: ASSIGNEE/HOME BUILDER:
a a
By:
Name:
Title:
Date:
248
Stardust Development Agreement
Exhibit G
1536606.2 13583-026
17 By:
Name:
Title:
Date:
Constructing Owner Contact:
Name:
Address:
Assignee/Home Builder Contact:
Name:
Address:
Telephone:
Facsimile:
E-Mail:
Telephone: Facsimile:
E-Mail:
249
Stardust Development Agreement
Exhibit H
1536616.1 13583-026 Village 1 IFP Fee Reimbursement Agmt Form (draft 1-20-17) 15
CITY OF LINCOLN
VILLAGE 1 - INFRASTRUCTURE FINANCE PLAN FEE REIMBURSEMENT
AGREEMENT
[LIST CONSTRUCTING OWNER HERE] [LIST FACILITY HERE]
This Fee Reimbursement Agreement (the “Agreement”) is entered into by and between the City of Lincoln (hereinafter the “City”) and_____________________, ________________, and/or its successors in interest, (hereinafter the “ Constructing Owner ”) as of the day of _____20 ____ (the “Effective Date”).
RECITALS
WHEREAS, Constructing Owner is developing the ____________________development (the “Project”), including backbone infrastructure and/or required public facilities and improvements that will serve the Project; and,
WHEREAS, Constructing Owner is required, as a condition of development of the Project per the Lincoln Village 1 Infrastructure and Public Financing Plan, or has otherwise agreed (with City’s approval), to construct or cause to be constructed the facilities and improvements described in Exhibit A hereto, which are included within the improvement plans titled , dated _________ 20___________ (hereinafter the “Facilities”); and WHEREAS, on September 13, 2016, the City Council of the City of Lincoln adopted Resolution 2016-181, which approved the Village 1 Infrastructure Finance Plan for the Specific Plan Area (the “ IFP”). The IFP includes the implementation of the Village 1 Plan Area Fee Program (the “Plan Area Fee Program”), establishing the Plan Area Fees (the “Fees”) to pay for a variety of public facilities (the “Facilities”) and established provisions associated with fee credits and reimbursements within the Village 1 Specific Plan Area (the “Plan Area”). In connection with the adoption of the IFP, the City Council approved a nexus study (the “Study”) establishing the relationship between the Fees and Facilities for the Plan Area; and WHEREAS, City and Constructing Owner have previously entered into a Development Agreement dated , 20 (and, as may be amended, herein referred to as the “DA”), which contains provisions governing the terms for reimbursements and credits, and which are not intended to be amended in any way by this Agreement; and WHEREAS, administration of the Plan Area Fee Program will be the responsibility of the City’s Director of Support Services, or their designee (the “Administrator”); and WHEREAS, City has agreed to allow Constructing Owner to execute a contract to design and construct the Facilities; and
WHEREAS, Constructing Owner has entered into a contract with (name of Contractor) for construction of the Facilities (the “Construction Contract”); and WHEREAS, City and Constructing Owner desire to enter into an agreement to provide for allowable reimbursements from the Infrastructure Fee Component of the Fees (the “Fee 250
Stardust Development Agreement
Exhibit H
1536616.1 13583-026 Village 1 IFP Fee Reimbursement Agmt Form (draft 1-20-17) 16
Reimbursements”), as defined and described in IFP, by the City to Constructing Owner for certain costs of design and construction of the Facilities, which Fee Reimburs ements may, at Constructing Owner’s discretion, be applied as credits against the Infrastructure Fee Component of the Fees (the “Fee Credits”) within the Constructing Owner’s Property as that term is defined in the DA described herein and in Section 2 hereof; and WHEREAS, this Agreement will not apportion any Fee Reimbursements that Constructing Owner may elect to apply as Fee Credits to any particular real property. Such apportionment shall be accomplished at Constructing Owner’s discretion to any portion or portions of the Constructing Owner’s Property as described herein;
WHEREAS, Section 4.3 of the DA provides that any Fee Reimbursement Agreement shall provide that certain provisions of the IFP and the DA (as set forth more particularly below) shall be protected from the effects of any proposed amendments of provisions related to reimbursement and credits, and Section 2.2.1 of the DA vests provisions related to the establishment of fee reimbursement and credit provisions for advance-funded improvements.
NOW, THEREFORE, in consideration of the mutual promises contained herein, City and Constructing Owner agree as follows:
SECTION 1. DEFINITIONS
All terms not otherwise described herein shall have the meaning described thereto in the IFP.
SECTION 2. RESTATED AGREEMENT IMPLEMENTING VESTED PROVISIONS OF IFP; MAP OF CONSTRUCTING OWNER’S PROPERTY.
This Agreement is intended to implement and not to modify or amend in any way the vested provisions of the IFP or the DA related thereto or the provisions of the Study or the IFP.
Consistent with the limitations in Section 4.3 of the DA, the “Constructing Owner’s Property,” within which Fee Reimbursements may be applied as credits against the Infrastructure Fee Component of the Fee as provided herein, is shown on the map attached hereto as Exhibit B (the “Map of Constructing Owner’s Property”), and may also include additional property contiguous thereto, not exceeding five percent (5%) in area, that may hereafter be added to the description thereof by lot line adjustment, subdivision or other such lawful land division as requested by the Construction Owner.
SECTION 3. CONSTRUCTION OF FACILITIES
Constructing Owner shall complete construction of the Facilities in accordance with the plans and specifications approved by the City Engineer, and in accordance with City improvement standards and this Agreement. Constructing Owner understands and acknowledges that the terms and conditions contained in any contract that Constructing Owner has or may execute with any contractors or material suppliers regarding the construction of the Facilities shall have no force or effect upon this Agreement. Constructing Owner is solely responsible for all contract payment obligations and may not rely upon reimbursement under the Plan Area Fee Program for purpose of payment to contractors, provided Constructing Owner may assign its rights to such 251
Stardust Development Agreement
Exhibit H
1536616.1 13583-026 Village 1 IFP Fee Reimbursement Agmt Form (draft 1-20-17) 17
reimbursements to its contractors and/or lenders as additional security for such payment. All bidding and contracting for construction work shall be done to allow for the Facilities to be eligible for acquisition or construction through a community facilities district (“CFD”).
SECTION 4. BONDS
A. Constructing Owner has posted the following securities for the Facilities in favor of the City in the amounts and forms acceptable to the City Attorney:
1. To secure faithful performance in the construction of the Facilities, security in an amount equal to one hundred (100%) percent of the estimated cost of the work in t he Preliminary Engineer’s Estimate (see Exhibit A), including but not limited to cost of the Facilities, engineering, inspection, fees and incidental expenses, as determined by the City Engineer.
2. To secure payment to the contractor, subcontractors, and to persons furnishing labor, materials, or equipment to them, security in an amount equal to one hundred (100%) percent of the estimated cost of the work in the Preliminary Engineer’s Estimate (see Exhibit A), including but not limited to cost of the Facilities, engineering, inspection, fees and incidental expenses, as determined by the City Engineer.
3. If applicable, to secure payment of the cost of setting of monuments, security in an amount equal to one hundred (100%) percent of the estimated costs of setting such monuments as determined by the City Engineer.
B. To secure the guarantee and warranty of the work for a period of one (1) year following the completion and acceptance of the Facilities, securit y in an amount equal to fifteen (15%) percent of the actual cost of the work performed, including but not limited to cost of the Facilities, engineering, inspection, fees and incidental expenses, as determined by the City Engineer shall be filed with the City prior to the final acceptance of the Facilities by the City.
C. The amounts of all securities required under this Agreement shall be adjusted every two years based on the best available data, such as actual bids and contracts for construction and change orders, as reviewed and approved by the City.
D. If security is furnished in the form of a bond or bonds, such bonds shall be executed by a corporate surety company authorized to transact surety business in the State of California.
E. If Constructing Owner shall fail or neglect to comply with the provisions of this Agreement, the City shall have the right at any time to cause said provisions to be met by any lawful means, and thereupon recover from the Constructing Owner and/or his/her surety the full cost and expense incurred.
SECTION 5. ALLOWABLE FEE REIMBURSEMENT
City and Constructing Owner agree that the amount of Infrastructure Fee Reimbursements owed to Constructing Owner hereunder shall be as set forth on Exhibit C hereto and made a part hereof, subject to the final “true up” as described in Section 8 hereof. The City shall reimburse the Constructing Owner, solely from the Infrastructure Fee Component of the Fee, all Eligible Hard Costs and Soft Costs incurred by the Constructing Owner in connection with the construction of 252
Stardust Development Agreement
Exhibit H
1536616.1 13583-026 Village 1 IFP Fee Reimbursement Agmt Form (draft 1-20-17) 18
the Facilities, as approved by the Administrator in consultation with the City Engineer. “Hard Costs” shall consist of the costs of (i) construction of the Facilities, based on the price included in the Construction Contract and actually paid to the contractor for the construction of the Facilities, (ii) traffic control, staging and storm water pollution prevention implementation measures (i.e., structural BMPs) related to such construction, and (iii) habitat mitigation required as a mitigation measure in connection with the construction of such Facilities. Hard Costs shall include the costs of any changes in scope or standards required by the City during the course of construction thereof that are added to the Construction Contract. Hard Costs shall also include the cost for any materials that exceeded the minimum specifications required by the City, so long as the bid for the contract clearly describes the allowed minimum specification. “Eligible Hard Costs” means all of the Hard Costs incurred by the Constructing Owner to construct the Facilities, except to the extent the Administrator, in consultation with the City Engineer excludes costs found to be commercially unreasonable. Evidence that costs are based on a properly bid construction contract shall be prima facie evidence that costs are commercially reasonable. In no event shall Fee Reimbursement exceed the amounts actually paid for Eligible Hard Costs. Constructing Owner shall provide documentation as required by the Administrator, which may include but is not limited to proof of payment and lien releases from all contractors, subcontractors, and suppliers for all costs for which it seeks reimbursement or credit under this Agreement. “Soft Costs” include the costs of planning, design and financing of the Facilities construction project, storm water pollution prevention monitoring & management (i.e., non- structural BMPs), engineering, inspection, geotechnical oversight and monitoring, testing, surveying, outside agency review fees, and bonding related to the construction of the Facilities. “Eligible Soft Costs” means all of the Soft Costs incurred by the Constructing Owner to construct the Facilities, except to the extent the Administrator, in consultation with the City Engineer, excludes costs found to be commercially unreasonable. Evidence that costs are based on a properly bid contracts shall be prima facie evidence that costs are commercially reasonable. In no event shall Fee Reimbursement exceed the amounts actually paid for Eligible Soft Costs. Constructing Owner shall provide documentation as required by the Administrator, which may include but is not limited to proof of payment and lien releases from all contractors, subcontractors, and suppliers for all costs for which it seeks reimbursement or credit under this Agreement.
The Fee Reimbursement hereunder shall be equal to the Eligible Hard Costs and Eligible Soft Costs (collectively, the “Total Eligible Costs”), subject to the final “true up” as described in Section 8 below, and shall be set forth on Exhibit C upon execution of this Agreement.
In the event of any disagreement between the Constructing Owner, the Administrator and City Engineer on the initial calculation of the Total Eligible Costs, if all other conditions to the entry of this Agreement have been satisfied, the Constructing Owner may elect to enter this Agreement without having the amount of the Total Eligible Costs resolved and listed on Exhibit C (or having only the undisputed amount listed thereon as the Fee Reimbursement). In such case, Constructing Owner’s right hereunder to apply any portion of the Fee Reimbursement (or the disputed amount thereof) as credits against the Fee within the Constructing Owner’s Property will be deferred until such disagreement is resolved by the Constructing Owner and the City. If the Constructing Owner, the Administrator and the City Engineer are unable to resolve any disputed amounts after the parties have engaged in good faith meetings and exchange of documents in support of their 253
Stardust Development Agreement
Exhibit H
1536616.1 13583-026 Village 1 IFP Fee Reimbursement Agmt Form (draft 1-20-17) 19
positions, the appeal provisions in Section 32 of this Agreement shall apply. The parties shall use their best efforts to resolve any such dispute within sixty (60) days of the entry of this Agreement.
Pending the resolution of any such dispute, the Constructing Owner shall pay any and all required Fees (except as may be offset by Fee Reimbursements applied as Fee Credits pursuant to other Fee Reimbursement Agreements) and City shall retain any Fees paid by the Constructing Owner after the Effective Date of this Agreement for potential refund upon resolution of such fee reimbursement dispute. The amount of Fees retained pending resolution of any fee reimbursement dispute shall not exceed the disputed amount. Upon resolution of any fee reimbursement dispute, and within twenty (20) business days of resolution of the fee reimbursement dispute, the Administrator shall amend Exhibit C to provide the final amount of the Fee Reimbursement allowed hereunder. Constructing Owner shall then have thirty (30) calendar days after receipt of the completed Exhibit C to retroactively apply any portion of such Fee Reimbursements as credits to the Constructing Owner’s intervening development of the Project and obtain an equivalent refund of Fees collected and retained from the Constructing Owner after the Effective Date of this Agreement pending the resolution of the fee reimbursement dispute. If Constructing Owner does not elect within such time to have any of the Fee Reimbursement applied as credits to the Constructing Owner’s intervening development of the Project, then any Fees previously collected and retained from the Constructing Owner during such period shall be deposited into the Fee Program and applied as otherwise provided for in the IFP.
SECTION 6. ANNUAL ADJUSTMENTS TO FEE REIMBURSEMENTS
As provided in the IFP, all fee reimbursements, including those converted to fee credits, shall be adjusted annually based on the annual change to the Plan Area Fee Program.
SECTION 7. CALENDAR-YEAR PRIORITY FOR PAYMENT OF FEE
REIMBURSEMENTS
The priority of payment of the Fee Reimbursements shall be on a Calendar -Year Priority basis, as described in the IFP. As provided in the IFP, a constructing entity (herein defined as a Constructing Owner) achieves a given Calendar -Year Priority when it has a fully executed fee reimbursement agreement and has expended at least 30 percent of the Eligible Hard Costs for the plan area infrastructure improvements included in such reimbursement agreement. Based on the estimated schedule for construction of the Facilities, the parties anticipate that Constructing Owner will complete 30% of the Eligible Hard Costs of the Facilities, which 30% completion will establish the Calendar-Year Priority for the Fee Reimbursements hereunder, by Calendar-Year 20.
Constructing Owner shall notify the City upon expenditure of 30% of the Eligible Hard Costs of the Facilities and, subject to confirmation thereof by the Administrator and the City Engineer, the City shall provide written notice to Constructing Owner of the Calendar-Year Priority for payment of Fee Reimbursements to be applied by the City hereunder. City shall provide Constructing Owner with the written notice required herein within 30 calendar days of the receipt of the written notification by the Constructing Owner of the expenditure of 30% of the Eligible Hard Costs.
Outstanding Fee Reimbursements shall be paid out first on the Fee Reimbursement Agreement(s) with the earliest Calendar -Year Priorities, unt il paid in full (i.e., a Fee Reimbursement Agreement with an earlier Calendar -Year Priority shall receive all available Fee Reimbursements until paid in full prior to any Fee Reimbursements being paid pursuant to a Fee 254
Stardust Development Agreement
Exhibit H
1536616.1 13583-026 Village 1 IFP Fee Reimbursement Agmt Form (draft 1-20-17) 20
Reimbursement Agreement with a later Calendar-Year Priority. If two or more Fee Reimbursement Agreements have the same Calendar -Year Priority (“Equal -Priority Reimbursement Agreements”), after payment in full on any earlier Calendar -Year Priority Fee Reimbursements, the Fee Reimbursements on such Equal-Priority Reimbursement Agreements shall be paid out pro rata, based on the relative amount of then outstanding Fee Reimbursements due thereunder at the time of such payment. For example, if at the time of payment of any Fee Reimbursement hereunder, another constructing owner was owed Fee Reimbursements pursuant to Fee Reimbursement Agreement with the same Calendar -Year Priority as this Agreement, then such payment would be divided between the Constructing Owner and the other constructing owner in proportion to the relative amounts of reimbursements then owned under the respective Agreements.
In accordance with the applicable Calendar -Year Priorities, the Fee Reimbursement hereunder shall be paid to Constructing Owner when the Facilities are comple ted as determined by the City Engineer (“Completion”) and accepted by resolution of the City Council accepting the improvements and directing the City Clerk to file a Notice of Completion with the Placer County Recorder. The Fee Reimbursement shall be paid by the City as fee revenues from the Infrastructure Fee Component of the Fees that are collected within the Plan Area. After Completion of the Facilities, such payments shall be made by the City at least quarterly throughout the year as funds become available. Prior to such Completion, if the Fee Reimbursement hereunder is eligible for payment on a Calendar-Year Priority basis subject only to Completion of the Facilities, then fee revenues collected from the Infrastructure Fee Component of the Fee within the Plan Area that would otherwise be paid to the Constructing Owner hereunder shall be held by the City in reserve for payment of the Fee Reimbursement pending Completion of the Facilities up to the amount of the Fee Reimbursement then due hereunder.
As provided in the IFP, the Administration Fee Component of the Fees has priority with respect to distribution of any fees in the Village 1 Plan Area Fee Program Fund and must be satisfied before reimbursements are made from other components of the Plan Area Fee Program.
The obligation arising from this Agreement is not a debt of the City, nor a legal or equitable pledge, charge, lien, or encumbrance, upon any of its property, or upon any of its income, receipts, or revenues, and is payable only and solely from the Infrastructure Fee Component of the Fee deposited in the Plan Area Fee Program.
SECTION 8. “TRUE UP” OF FEE REIMBURSEMENT
Upon completion of the Facilities by the Constructing Owner and acceptance thereof by the City, the final determination of actual Eligible Hard Costs upon which the Fee Reimbursement amount is based shall be determined by the Administrator, in consultation with the City Engineer, based on documentation thereof provided by Constructing Owner to the Administrator’s and City Engineer’s reasonable satisfaction. For construction change orders to be given consideration for reimbursement, the Constructing Owner must:
• Present the change order request and estimated cost along with supporting information to the Administrator and City Engineer; and
• Fully document any work performed under a change order to verify all associated costs. 255
Stardust Development Agreement
Exhibit H
1536616.1 13583-026 Village 1 IFP Fee Reimbursement Agmt Form (draft 1-20-17) 21
Failure to comply with any of these procedures may result in the ineligibility of the requested change order for such Fee Reimbursement.
To secure final Fee Reimbursement, Constructing Owner shall provide the following items to the Administrator and City Engineer in order for each to determine the actual Eligible Hard Costs and Eligible Soft Costs incurred by Constructing Owner for the Facilities that qualify for reimbursement:
(1) Copies of the original Construction Contract and any change orders that have been agreed to and approved in writing by the Constructing Owner, contractor, and the City. The portion of each change order associated with the Facilities must be itemized separately; (2) Copies of all invoices, with unconditional lien releases, submitted by the contractor and suppliers;
(3) Copies of all checks issued by the Constructing Owner with related invoices indicated;
(4) A summary tabulation of all contractor and supplier invoices and Constructing Owner payments; and
(5) Prevailing Wage Certification, or documentation acceptable to the City Attorney of an exception to the applicability of prevailing wage.
If, when the final reconciliation of Total Eligible Costs for the Facilities is conducted by the Administrator, the actual Total Eligible Costs for the Facilities exceeds the amount of Fee Reimbursement initially provided hereunder, the Administrator shall review items (1) through (4) above and determine if the actual Total Eligible Costs will serve as the basis for determination of the amount of the Fee Reimbursement due or owed to the Constructing Owner should be increased above the amount described in Exhibit C of this Agreement. The Administrator, in consultation with the City Engineer, shall determine how much of the actual construction costs should be included in any increase to the Total Eligible Costs and Exhibit C shall be adjusted accordingly.
If the final reconciliation determines that Total Eligible Costs are less than the amount of Fee Reimbursement initially provided hereunder, the Administrator shall notify the Constructing Owner of such reduction of the Fee Reimbursement and Exhibit C shall be revised accordingly.
If the amount of Fee Reimbursements converted to and applied as Fee Credits exceeds the final amount of Total Eligible Costs that supported such Fee Credits, then the Constructing Owner shall repay the amount of the Fee Reimbursement that was converted to a nd applied as Fee Credits in excess of the confirmed Total Eligible Costs within sixty (60) calendar days of receipt of notice from the Administrator of the amount to be repaid. As an alternative to repaying such amount in cash, if the Constructing Owner holds Fee Reimbursements pursuant to another Fee Reimbursement Agreement that are convertible to Fee Credits within the Constructing Owner’s Property, the Constructing Owner may convert the Fee Reimbursements from such other Fee Reimbursement Agreement to Fee Credits and apply them against such repayment obligation.
Failure to make such repayment within the aforementioned 60- day timeframe shall constitute a default and a material breach of this Agreement.
256
Stardust Development Agreement
Exhibit H
1536616.1 13583-026 Village 1 IFP Fee Reimbursement Agmt Form (draft 1-20-17) 22
In no event shall Fee Reimbursement exceed the amoun ts actually paid by Constructing Owner for Total Eligible Costs. Any determination by the Administrator and City Engineer under this Section shall be subject to the appeal rights set forth in Section 32 of this Agreement.
SECTION 9. APPLICATION OF FEE REIMBURSEMENT CONVERTED TO FEE
CREDITS
The Fee Reimbursement may, at the Constructing Owner’s option, be converted to Fee Credits for application against the Infrastructure Fee Component of the Fee in connection with development within the Constructing Owner’s Property, subject to the following conditions:
A. If more than one Fee Reimbursement Agreement has been entered into with respect to development of a Constructing Owner’s Property, any conversion of Fee Reimbursements to Fee Credits shall occur in the order of the Calendar -Year Priority for such Fee Reimbursements, beginning with the earliest Calendar-Year Priority Fee Reimbursements; B. In any event, Fee Reimbursements converted to Fee Credits may not be assigned to, or applied against the Fee obligation associated with development of any Plan Area properties other than the Constructing Owner’s Property, as depicted on Exhibit B to this Agreement, and subject to the provisions of Section 2 related to application of Fee Credits to other contiguous properties not exceed five percent (5%) in area owned by the Constructing Owner.
C. Notwithstanding any provision to the contrary, Fee Reimbursements converted to Fee Credits may only be used to satisfy Plan Area obligations and not for any other purpose.
Subject to compliance with the foregoing conditions, Fee Reimbursements may be converted to Fee Credits at any time from and after the Effective Date of this Agreement. Any conversion of Fee Reimbursements to Fee Credits and the corresponding application of such converted Fee Credits against the Infrastructure Fee Component of the Fee shall be made in writing and delivered to the Administrator in the form attached hereto as Exhibit D . So long as the Constructing Owner is not in default of this Agreement at the time of its request, Fee Reimbursements may be converted to and applied as Fee Credits against the Infrastructure Fee Component of the Fee at any time from and after the Effective Date of this Agreement and such conversion is not dependent upon Completion of the Facilities.
The right to apply Fee Reimbursements as Fee Credits is limited hereunder to the Infrastructure Fee Component of the Fee and may not be applied against the Neighborhood Park Development Fee Component, the Neighborhood Park Land Acquisition Fee Component or the Administrative Fee Component of the Fee.
SECTION 10. DISCLOSURE REGARDING TIMING OF PAYMENT OF
INFRASTRUCTURE FEES
As described in the IFP, the Fee will be collected before acceptance of the first final small lot map on any property identified in the Constructing Owner’s DA. The Fee will be charged with each final small lot map, with 10 acres being the minimum quantity for each small lot map. The 10-acre minimum does not accumulate with or carryforward to future small lot maps. 257
Stardust Development Agreement
Exhibit H
1536616.1 13583-026 Village 1 IFP Fee Reimbursement Agmt Form (draft 1-20-17) 23
SECTION 11. TRANSFER OF FEE REIMBURSEMENTS
Fee Reimbursements are personal to Constructing Owner and do not run with the Project that is generating such Fee Reimbursements. Provided the Constructing Owner has no outstanding monetary obligation to the City within the Project Area, Constructing Owner may, at its sole option and discretion, assign the rights to any Fee Reimbursements, including the right to convert such Fee Reimbursements to be applied as Fee Credits against the Infrastructure Fee Component of the Fee, to any other person or entity, including any developer or builder acquiring property within any portion of the Constructing Owner’s Property, subject to the conditions and limitations herein regarding the application of such Fee Credits, including without limitation, the application thereof only for development within the Constructing Owner’s Property. If Constructing Owner has an outstanding monetary obligation to the City as noted above, then the City may either require the monetary obligation to be met before transfer of the Fee Credit or apply any Fee Reimbursement or converted Fee Credit then owned by Constructing Owner against the obligation owed by Constructing Owner. Any assignment of the rights to Fee Reimbursements shall be made in writing and delivered to the Administrator in the form attached hereto as Exhibit E. Assigned Fee Credits carry the same priority the assignor had in the credits.
SECTION 12. FAILURE TO COMPLETE CONSTRUCTION.
Failure to complete work within the scope of this Agreement may affect the Calendar-Year Priority Status for the Fee Reimbursement hereunder, may result in termination of the Fee Reimbursements and termination of the right to apply any converted Fee Credits against the Infrastructure Fee Component of the Plan Area (in which case, absent the availability of any other Fee Credits, the full amount of the Infrastructure Fee Component of the Plan Area would be due as and when required by development of the Constructing Owner’s Property), and may require repayment of any Fee Reimbursements paid or applied as Fee Credits, as deemed appropriate by the Administrator. In connection therewith, the Administrator may determine that the Constructing Owner shall not be entitled to further Fee Reimbursement or Fee Credits until completion of the Facilities as determined by approval of a resolution of the City Council accepting the improvements and authorizing the City Clerk to file a Notice of Completion with the Placer County Recorder. A change in the Calendar -Year Priority for any Fee Reimbursements will be evaluated from the previously determined Calendar-Year Priority to the date of completion, which may affect priority for Fee Reimbursement and priority for conversion to Fee Credits. Any determination by the Administrator and City Engineer to invoke the provisions of this Section shall be subject to the appeal rights set forth in Section 32 of this Agreement.
SECTION 13. INSPECTION
City and its authorized representatives shall, at all times have access to the construction site during construction of the Facilities and Constructing Owner shall furnish City with all reasonable information necessary for ascertaining full knowledge of the Facilities with respect to the progress, workmanship, and character of materials and equipment used and employed in the work.
Whenever the contractors retained by Constructing Owner vary the normal period during which work or any portion of it is carried out on each day, Constructing Owner shall give timely notice to the City Engineer so that if he or she wishes, be present to observe the work in progress. If Constructing Owner fails to give such timely notice, any work done in the absence of the City 258
Stardust Development Agreement
Exhibit H
1536616.1 13583-026 Village 1 IFP Fee Reimbursement Agmt Form (draft 1-20-17) 24
representative will be subject to rejection. Constructing Owner shall give timely notice to the City Engineer in advance of backfilling or otherwise covering any part of the work so that the City’s representative may observe the work before it is concealed.
Notwithstanding any provision to the contrary, all Facilities shall be subject to City inspection for compliance with City requirements prior to approval of a resolution of the City Council accepting the improvements and authorizing the City Clerk to file a Notice of Completion with the Placer County Recorder. Observation of the work or inspection by the City shall not relieve Constructing Owner or its sureties of full responsibility for defective materials or workmanship or any of its obligations to complete construction in accordance with the plans and specifi cations approved by the City Engineer.
SECTION 14. COMPLIANCE WITH PREVAILING WAGE LAWS
Unless otherwise authorized by City Charter, City ordinance, or applicable State statutory or common law, pursuant to the provisions of Articles 1 and 2 of Chapter 1, Part 7, Division II of the Labor Code of the State of California (Labor Code Sections 1720 et seq . (“Prevailing Wage Laws”)), all work shall be performed in compliance which the Prevailing Wage Laws and not less than the general prevailing rate of per diem wages, and not less than the general prevailing rate of per diem wages for holidays and overtime work, for each craft, classification or type of worker needed to execute the work contemplated under this Agreement shall be paid to all workers, laborers, and mechanics employed in the execution of said work by the Constructing Owner or the Constructing Owner’s contractor, or by any subcontractor doing or contracting to do any part of said work. The appropriate determination of the Director of the California Department of Industrial Relations shall be filed by the Constructing Owner with, and made available for inspection at the office of the City Clerk.
Constructing Owner shall require all contractors to register with the Department of Industrial Relations in accordance with Labor Code section 1725.5. Constructing Owner shall require its contractor to post, at each jobsite, a copy of such prevailing rate of per diem wages as determined by the Director of the California Department of Industrial Relations. No Fee Reimbursement or Fee Credit shall be permissible without full compliance with the Prevailing Wage Laws.
SECTION 15. INSURANCE
Constructing Owner shall require its contractor to carry and maintain for three (3) years after City Acceptance of the Facilities, such public liability, property damage and contractual liability, auto, Workers’ Compensation, Builders’ Risk Insurance and other insurance coverage as required by the City in accordance with the improvement plan specifications for the Facilities.
The contractor shall name the City as an additional insured. For any claims related to the Facilities, the contractor’s general liability and automobile insurance coverage shall be primary insurance in their coverage of the City and its officers, officials, employees, agents, or volunteers, and any insurance or self -insurance maintained by the City, its officers, officials, employees, agents or volunteers shall be excess of the contractor’s insurance and shall not contribute with it.
SECTION 16. ACCEPTANCE AND CONVEYANCE OF FACILITIES
259
Stardust Development Agreement
Exhibit H
1536616.1 13583-026 Village 1 IFP Fee Reimbursement Agmt Form (draft 1-20-17) 25
Once Constructing Owner has completed construction of the Facilities and the Facilities, to include all associated easements and offers of dedication, provided that all liens, claims and encumbrances in connection with the Facilities have been released and the required warranty bond has been provided to the City, final inspection, all engineering submittals and administrative components of the project, to the satisfaction of the City Engineer shall recommend that the City Council approve a resolution accepting the improvements and authorizing the City Clerk to file a Notice of Completion with the Placer County Recorder. No acceptance shall be valid without the Constructing Owner conveying and vesting full, complete and clea r title in said Facilities to the City at the time of acceptance.
SECTION 17. LIENS, CLAIMS, AND ENCUMBRANCES
Prior to the City’s acceptance of any Facilities, Constructing Owner shall clear any and all liens, claims and encumbrances from said Facility as a condition of acceptance by the City.
SECTION 18. DELIVERY OF AS-BUILT PLANS AND SPECIFICATIONS Prior to acceptance of the Facilities by City, Construction Owner shall deliver City copies of all as-built plans (if any), specifications, operating manuals, service manual, warranties and other documents relating to the design, construction and operation of the Facilities described in this Agreement.
SECTION 19. INDEMNIFICATION
The Constructing Owner, by execution of this Agreement, specifically agrees to protect and assume the defense of, indemnify and hold harmless City and its elected representatives, officers, employees, agents and consultants (the “Indemnitees”), from and against all liabilities, actions, lawsuits, damages, claims, losses, or expenses of every type and description, including attorneys’ and consultants’ fees and expenses, (collectively, “Liabilities”), to which they may be subjected or put, by reason of or resulting from the design, construction, or installation of the Facilities, except to the extent the Liabilities arise from the sole negligence, or willful misconduct of City and/or the Indemnitees. This indemnification shall extend to Liabilities occurring after this Agreement is terminated as well as while it is in force. Notwithstanding the foregoing, following the acceptance of the improvements by City, or if there is an applicable warranty, following the end of any applicable warranty period, the Constructing Owner shall not be obligated to indemnify the Indemnitees for Liabil ities to the extent that such Liabilities arise from Indemnitees’ active or passive negligence following acceptance of the Facilities.
SECTION 20. THIRD PARTY LIABILITY
City does not assume any liability, duty or obligation to Constructing Owner’s contractors, subcontractors, agents or any person or entity not a party to this Agreement by execution or performance of this Agreement, and no contractors, subcontractors, agents or any parties are third party beneficiaries of this Agreement.
SECTION 21. WARRANTY
Constructing Owner hereby warrants the Facilities as to materials, design and workmanship 260
Stardust Development Agreement
Exhibit H
1536616.1 13583-026 Village 1 IFP Fee Reimbursement Agmt Form (draft 1-20-17) 26
and should any defect or failure of the Facilities, or any parts thereof, occur within a period of one (1) year after final acceptance by City, or such other longer time duration that may be agreed to by separate agreement, Constructing Owner shall promptly cause the needed repairs to be made without any expense or cost to the City. Final acceptance shall be deemed to have occurred under this Agreement when the Facilities have been accepted resolution of City Council accepting the Facilities and directing the City Clerk to file a Notice of Completion with the Placer County Recorder. City shall provide written notification to Constructing Owner of final acceptance by the City.
City is hereby authorized to make repairs if Constructing Owner fails to make, or undertake with due diligence, the aforesaid repairs within twenty (20) calendar days after it is given written notice of such defect or failure. In case of emergency, where in the opinion of the City Engineer delay may cause serious hazard to the public or delaying the repairs may cause the damage to substantially increase, the necessary repairs may be made by the City without prior notice to Constructing Owner. All costs of the repair, if not paid by the Constructing Owner within twenty calendar days of notice from the Administrator to the Constructing Owner, shall be paid out of any Fee Reimbursement then otherwise payable to the Constructing Owner from the Infrastructure Fee Component of the Village 1 Plan Area Fee Program Fund. In the event available Fee Reimbursement otherwise payable to the Constructing Owner shall be insufficient to pay for the repair, the deficiency shall be paid out of _______. In no event shall the City be responsible for the cost of the repair within the warranty period. In all cases of defect or failure within the warranty period where the City has taken action in accordance with this paragraph, Constructing Owner shall promptly reimburse City and, if applicable, the _______ shall fund the repair for any and all costs or expenses, direct or indirect, incurred by the City. The foregoing is in addition to, and shall not in any way limit or affect, the rights of the City to enforce the warranty obligations of Constructing Owner hereunder and to recover any and all costs thereof from the warranty bond posted thereby.
SECTION 22. BINDING ON SUCCESSORS AND ASSIGNS
Each and every provision of this Agreement shall be binding upon and shall inure to the benefit of the respective successors and assigns of the parties hereto, in the same manner as if such parties had been expressly named herein.
SECTION 23. ATTORNEY’S FEES
If any suit, action or proceeding in law or equity (except for the dispute resolution process set forth herein) is brought to enforce the provisions of this Agreement, the prevailing party shall be entitled to reasonable costs and attorneys’ fees.
SECTION 24. AUTHORITY TO ENTER INTO AGREEMENT
Constructing Owner and City certify that they have the authority and are legally empowered to enter into this Agreement on behalf of their entity and to bind their party to the performance of its obligations hereunder.
SECTION 25. NOTICES
261
Stardust Development Agreement
Exhibit H
1536616.1 13583-026 Village 1 IFP Fee Reimbursement Agmt Form (draft 1-20-17) 27
Any notices, requests, demands or other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given on the date of service if served personally (FedEx and similar services, each of which is hereinafter called an “Express Courier,” shall be considered to be personal service) or by telephone facsimile or other electronic transmission (provided that the sender of a telephone facsimile or other electronic transmission has received confirmation of successful transmission by the sending fax machine), and upon receipt, if mailed to the party to whom notice is to be given, by first-class mail, registered or certified, postage prepaid, return receipt requested, and properly addressed as follows:
(a) If to City:
City of Lincoln
Attn: Director of Support Services / Administrator 600 Sixth Street Lincoln, CA 95648
Telephone: (916) 434-2400
Facsimile: (916) _____________________
With a copy to:
City of Lincoln Attn: City Engineer 600 Sixth Street
Lincoln, CA 95648
Telephone: (916) 434-2400
Facsimile: (916) _______________
(b) If to Constructing Owner:
[fill in notice information for Constructing Owner]
Either party may change its mailing address at any time by giving written notice of such changes to the other party in the manner provided herein.
SECTION 26. NOTICE OF CONTRACTORS
Constructing Owner shall provide a copy of this Agreement to any contractors, subcontractors, or other parties performing work on the Facilities, prior to commencement of construction by said party.
SECTION 27. TERM
The term of this Agreement shall start on the day and year duly executed by all parties and shall remain in effect until all the terms and conditions contained in this Agreement have been satisfied.
SECTION 28. SEVERABILITY
If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining portions hereof shall not in any way be affected or impaired thereby.
262
Stardust Development Agreement
Exhibit H
1536616.1 13583-026 Village 1 IFP Fee Reimbursement Agmt Form (draft 1-20-17) 28
SECTION 29. CONFLICTS
This agreement is intended to implement and be consistent with the requirements of the IFP.
Therefore, in the event of any conflicts between the IFP and this Agreement, the requirements of the IFP shall prevail and control.
SECTION 30. EXHIBITS
The Exhibits attached hereto are hereby incorporated herein by this reference.
SECTION 31. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding of the parties regarding the subject matter hereof. The Agreement may be amended only by writing executed by both parties.
SECTION 32. RIGHT OF APPEAL
Constructing Owner may appeal any final determination by the Administrator and/or City Engineer to the City Manager and thereafter to the City Council pursuant to the provisions of Lincoln Municipal Code. Prior to submitting the matter to the City Council, the City Manager may, in his/her discretion, elect to engage the services of a mediator to attempt to mediate the dispute in a non-binding fashion, not to exceed a total of thirty (30) calendar days. Any decision of the City Council shall be final with no right of further appeal or action thereafter.
SECTION 33. EFFECTIVE DATE
The City’s execution of this Agreement shall be contingent upon confirmation by the Administrator, in consultation with the City Engineer, that (i) a Construction Contract has be en properly bid and entered into for construction of the Facilities, (ii) performance and payment bonds have been posted in form and amount required by the City, and (iii) a Notice to Proceed has been given to the contractor for the Facilities. The date of such execution by the City, based in part on the City’s confirmation of the satisfaction of the foregoing conditions, shall be deemed to be the “Effective Date” of this Agreement. Upon execution of this Agreement by the City, the City shall insert the Effective Date in the Preamble to this Agreement and provide a copy of this fully executed and dated Agreement to Constructing Owner.
[SIGNATURE PAGE FOLLOWS]
263
Stardust Development Agreement
Exhibit H
1536616.1 13583-026 Village 1 IFP Fee Reimbursement Agmt Form (draft 1-20-17) 16
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above-written.
CITY:
CITY OF LINCOLN,
a municipal corporation
CONSTRUCTING OWNER:
(INSERT CONSTRUCTING
OWNER SIGNATURE BLOCK)
By:
Its: City Manager
ATTEST:
By:
Its: City Clerk
APPROVED AS TO CONTENT:
By:
Name:
Title:
Date:
By:
Its: City Engineer
APPROVED AS TO CONTENT:
By:
Its: Director of
Support Services
APPROVED AS TO FORM:
By:
Its: City Attorney
264
Stardust Development Agreement
Exhibit H
1536616.1 13583-026
17 EXHIBIT A
IDENTIFICATION OF FACILITIES AND MAP
(Including Preliminary Engineer’s Estimate of Facility Costs)
(to be attached)
265
Stardust Development Agreement
Exhibit H
1536616.1 13583-026
18 EXHIBIT B
MAP OF CONSTRUCTING OWNER’S PROPERTY
(Within Which Fee Reimbursements May Be Applied as Fee Credits)
(to be
attached)
266
Stardust Development Agreement
Exhibit H
1536616.1 13583-026
19 EXHIBIT C
IDENTIFICATION OF FEE REIMBURSEMENT
VILLAGE 1 PLAN AREA FEE PROGRAM
[Insert Name of Constructing Owner Here] [List Facility Here]
Date of Agreement: , 20
Village 1 Plan Area Program Fee Reimbursements: $___________________
267
Stardust Development Agreement
Exhibit H
1536616.1 13583-026
20 EXHIBIT D
FORM OF CERTIFICATE OF CONVERSION OF FEE REIMBURSEMENTS TO
AND APPLICATION OF INFRASTRUCTURE FEE CREDITS
The undersigned Constructing Owner, as the holder of certain Fee Reimbursements related to the Fee Reimbursement Agreement between Constructing Owner and the City of Lincoln, dated ___________ (the “Agreement”), and with a Calendar -Year Priority of 20 , hereby elects to convert the Fee Reimbursements to Fee Credits and apply such converted Fee Reimbursements indicated below as a credit against the Infrastructure Fee Component of the Village 1 Plan Area Fee Program otherwise payable in connection with the recordation of a small- lot subdivision map for development of the property within the Village 1 Specific Plan Area described below:
Constructing Owner’s Legal Name:
Project Name:
Subdivision Name:
Final Map Name and Date:
Village (or Units) and Lot Numbers:
Attach copy of Final Map with lot numbers visible.
Amount of Fee Reimbursements Converted to Fee Credits: $
Fee Reimbursement Balance Under Agreement Before Conversion: $
Fee Reimbursement Balance Under Agreement After Conversion: $
ACKNOWLEDGED: Administrator:
CONSTRUCTING OWNER:
________________________________
___,
a
268
Stardust Development Agreement
Exhibit H
1536616.1 13583-026
21 By:
Name:
Title:
Date:
269
Stardust Development Agreement
Exhibit H
1536616.1 13583-026
21 EXHIBIT E
FORM OF CERTIFICATE OF ASSIGNMENT AND TRANSFER
OF INFRASTRUCTURE FEE REIMBURSEMENTS
The undersigned Constructing Owner, as the holder of certain Fee Reimbursements related to the Fee Reimbursement Agreement between Constructing Owner and the City of Lincoln, dated
(the “Agreement”), and with a Calendar -Year Priority of 20 , hereby assigns, transfers and conveys to the undersigned Assignee the amount of Fee Reimbursements as indicated below:
Constructing Owner’s Legal Name:
Assignee’s Legal Name:
Amount of Assigned Fee Reimbursements: $
Fee Reimbursement Balance Held by Constructing Owner
under Agreement Before Assignment: $
Fee Reimbursement Balance Held by Constructing Owner
under Agreement After Assignment: $
ACKNOWLEDGED: Administrator:
CONSTRUCTING OWNER: ASSIGNEE/HOME BUILDER:
a a
By:
Name:
Title:
Date:
By:
Name:
Title:
Date:
Constructing Owner Contact:
Name:
Address:
Assignee/Home Builder Contact:
270
Stardust Development Agreement
Exhibit H
1536616.1 13583-026
22 Name: Address:
Telephone:
Facsimile: E-Mail:
Telephone:
Facsimile: E-Mail:
271
Stardust Development Agreement
Exhibit I
1533538.2 2
Recording requested by:
When recorded, mail to:
Attn.:
Space above this line for
recorder’s use only
PLAN AREA FEE CREDIT TRANSFER AGREEMENT
THIS PLAN AREA FEE CREDIT TRANSFER AGREEMENT (herein, this “Plan Area Transfer Agreement’) is entered into as of____________________, 20 ____, by and between ___________________, a_______________(“Transferor”) and ___________, a__________________ (“Transferee”).
RECITALS
A. TRANSFEROR agrees to convey to TRANSFEREE certain Plan Area Fee Credits identified in Exhibit A, applicable to Plan Area projects included in the Lincoln Village 1 Infrastructure and Public Facilities Financing Plan (“Plan Area Credits”).
B. Exhibit A is attached hereto and incorporated by reference.
C. TRANSFEROR and TRANSFEREE are executing and recording this Plan Area Transfer Agreement pursuant to Sections 4.3.5 of their respective development agreements.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, TRANSFEROR and TRANSFEREE agree as follows:
1. TRANSFEROR hereby assigns to TRANSFEREE all of TRANSFEROR’s rights and obligations pertaining to Plan Area Credits as set forth in Exhibit A.
2. TRANSFEREE, its successors and assigns hereby expressly assume all such rights and obligations pertaining the Plan Area Credits as set forth in Exhibit A.
3. All of the covenants, terms and conditions set forth herein shall be binding upon and shall inure to the benefit of the parties hereto and to their respective heirs, successors and assigns.
272
Stardust Development Agreement
Exhibit I
1533538.2 3
4. This Transfer Agreement may be executed in one or more counterparts. All counterparts so executed shall constitute one agreement, binding on all parties, even though all parties, even though all parties are not signatory to the same counterpart. The parties authorize each other to detach and combine, or cause to be detached and combined, original signature pages and consolidate them into a single identical original for recordation of this Agreement in the Official Records of Placer County, California.
IN WITNESS WHEREOF, the parties hereto have executed this Plan Area Transfer Agreement as of the date and year first-above written.
TRANSFEROR:
_____________________________,
a ___________________________
By:
Name:
Title:
TRANSFEREE:
____________________________,
a _____________________
By:
Name:
Title:
273
Stardust Development Agreement
Exhibit
1533538.2 EXHIBIT A
EXHIBIT A
PLAN AREA FEE CREDITS TRANSFERRED
PLAN AREA FEE
CREDITS
Infrastructure Fee
Neighborhood Park
Development Fee
Neighborhood Park
Land Acquisition
Fee
Administration Fee
$ .00
$ .00
$ .00
$ .00
VERIFICATION
The City of Lincoln hereby verifies that the Plan Area Credits listed above are currently owned by TRANSFEREE and available for transfer to TRANSFEROR.
By:
Name:
Title: Director of Support Services
274
SUBJECT:
Waive First Reading and Introduce by Title Only an Ordinance Authorizing the Levy of Special Taxes Within City of Lincoln Community Facilities District No. 2025-1 (Joiner Ranch East), Adopt a Resolution Establishing City of Lincoln Community Facilities District No. 2025-1 (Joiner Ranch East) and Calling an Election Therein, Adopt a Resolution Determining Necessity to Incur Bonded Indebtedness for City of Lincoln Community Facilities District No. 2025-1 (Joiner Ranch East), and Adopt a Resolution Certifying Election Results
. (Nita Wracker)
SUBMITTED BY:
Nita Wracker
DEPARTMENT:
Finance
DATE:
August 12, 2025
Item Number 8.B
STAFF RECOMMENDATION:
Hold a Public Hearing regarding the formation of City of Lincoln Community Facilities District No. 2025-1 (Joiner Ranch East)
Adopt Resolution Establishing City of Lincoln Community Facilities District No. 2025-1 (Joiner Ranch East) and Calling an Election Therein
Adopt Resolution Determining Necessity to Incur Bonded Indebtedness for City of Lincoln Community Facilities District No. 2025-1 (Joiner Ranch East)
Adopt Resolution Certifying Election Results
Introduce Ordinance Authorizing the Levy of Special Taxes Within City of Lincoln Community Facilities District No. 2025-1 (Joiner Ranch East)
BACKGROUND/INTRODUCTION:
The property to be included within proposed City of Lincoln Community Facilities District No. 2025-1 (Joiner Ranch East) (“CFD No. 2025-1” or the “District”) is located on the corner of Joiner Parkway and Nicolaus Rd. (the “Property”). The Property is approximately 26 gross acres and is entitled for 198 detached single family residential lots. The Master Developer of the Property is Taylor Builders on behalf of JEN CALIFORNIA 24 LLC. D.R. Horton and its landbank Hearthstone are under contract to acquire all 198 lots and to date have acquired 114 lots from the Master Developer. JEN CALIFORNIA 24 LLC, D.R. Horton and Hearthstone are collectively referred to herein as the “Property Owners.” The Property Owners have requested that the City form CFD No. 2025-1 to encompass the Property in accordance with the Mello-Roos Community Facilities Act of 1982, as amended
STAFF REPORT
275
(the “Act”), to finance the costs of certain public improvements through the levy of a special tax and the issuance of bonds. The maximum amount of bonded indebtedness proposed is $23,500,000.
The Property Owners have requested that the boundaries of CFD No. 2025-1 include the area described in Attachment A of the Resolution of Intention to Establish CFD No. 2025-1 adopted on June 24, 2025 (the “Resolution of Intention”), and that special taxes be levied within the boundaries of the District in accordance with the Rate and Method of Apportionment (the “RMA”) described in Attachment C to the Resolution of Intention. The Resolution of Intention was the first step in the process of forming CFD No. 2025-1 and, together with the Resolution of Intention to Incur Bonded Indebtedness by CFD No. 2025-1, which was also adopted by the City Council on June 24, 2025, declared the City’s intention to form CFD No. 20251, incur bonded indebtedness by CFD No. 2025-1, and called for a public hearing to take place on August 12, 2025. Notice of the public hearing was published on August 1, 2025, and mailed to each of the Property Owners.
In connection with the public hearing, Goodwin Consulting Group. Inc. has prepared a CFD Report which describes and analyzes the facilities to be financed by CFD No. 2025-1 and the estimated costs of such facilities. Following the close of the public hearing, the City Council will be asked to adopt the Resolution of Formation for CFD No. 2025-1 and the Resolution Determining Necessity to Incur Bonded Indebtedness by CFD No. 2025-1 which, together, approve the formation of the CFD No. 2025-1, the levy of the special taxes in CFD No. 2025-1 in accordance with the RMA and determines the necessity for CFD No. 2025-1 to issue bonds in an amount not to exceed $23,500,000. Such resolutions call for an election to submit to the qualified voters of the CFD No. 2025-1 ballot measures on the approval of the special taxes, the issuance of bonds and an appropriations limit for the CFD No. 2025-1.
The Resolution of Formation also approves the execution and delivery of an Acquisition, Construction and Funding Agreement with JEN CALIFORNIA 24 LLC (the “Acquisition Agreement”). The Acquisition Agreement sets forth the terms pursuant to which CFD No. 2025-1 will acquire improvements constructed by the Master Developer from bond proceeds from CFD No. 2025-1 and how the Master Developer will be reimbursed for development impact fees from bond proceeds. In order to be eligible for acquisition, such facilities must be constructed in accordance with the terms and conditions of the Acquisition Agreement. The City and CFD No. 2025-1 are only required to pay for the acquisition of such facilities from the proceeds of bonds or special taxes levied in CFD No. 2025-1 and not from any other source.
The Acquisition Agreement contains a provision requiring that the special taxes be levied within CFD No. 2025-1 at the maximum rates permissible under the RMA from Fiscal Years 2026-27 through 2035-36 for the purpose of using the special taxes in excess of what is needed to pay debt service on bonds and the City’s administrative expenses to reimburse the Master Developer for the cost of improvements and/or development impact fees which are not otherwise reimbursed from bond proceeds.
On file with the City Clerk is confirmation from Placer County that there are no registered voters residing within the boundaries of the CFD No. 2025-1. Accordingly, under the Act, only property owners owning land in CFD No. 2025-1 are eligible to vote at the election for CFD No. 2025-1 with each owner having one vote for each acre (or portion thereof) that they own within CFD No. 2025-1. The Property Owners have each executed a consent and waiver of certain election procedures with respect to the election, including certain timing requirements 276
with respect to the election, in accordance with the Act. Accordingly, if the City Council approves the Resolution of Formation and the Resolution Determining Necessity to Incur Bonded Indebtedness, the City Clerk will conduct the election. The Property Owners will have delivered their ballots to the City Clerk in advance of the public hearing, and the City Clerk will announce the election results and the City Council will be asked to adopt the Resolution Certifying the Election Results. Upon certification that 2/3rds of the votes cast are in favor of the propositions voted upon in CFD No. 2025-1, the Resolution Certifying the Election Results will direct the City Clerk to record a notice of special tax lien on the property within CFD No. 2025-1. The City Council will then be asked to introduce the ordinance authorizing the levy of the special tax within CFD No. 2025-1, in accordance with the RMA.
FINDINGS/ANALYSIS:
The proposed detached single family homes with the proposed District consist of 4 separate floor plans and range in average square footage of approximately 1550 sq/ft to 2300 sq/ft.
The effective tax rate in the District is estimated to be at approximately 1.85% of the estimated sales prices. The Special Tax rates range from $3,464 for units under 1,625 sq/ft to $4,016 for units greater than 2,000 sq/ft. The special taxes will escalate annually by 2%.
ENVIRONMENTAL REVIEW:
Joiner Ranch East received requisite environmental approvals in connection with the land use approvals for the Property.
LEVINE ACT COMPLIANCE:
The Levine Act requires a party (or the party’s agent(s)) to a proceeding before the City of Lincoln that involves any action or consideration to their contract, license, permit, or other entitlement for use, to disclose any campaign contribution made to City elected or appointed officer totaling more than $500 within the 12 months before the City decision.
This matter does not implicate the disclosure requirements of the Levine Act.
FISCAL IMPACT:
The Master Developer has made a deposit of $70,000 to pay for the costs of the formation proceedings which may be reimbursed to the Master Developer in accordance with the Reimbursement Agreement. If established and subject to necessary Council and voter approvals, CFD No. 2025-1 will annually levy special taxes on all of the taxable property within the District in accordance with the RMA (as attached to the Resolution of Intention). Such special taxes will be used to pay for the costs of facilities, debt service on bonds and administration of CFD No. 2025-1.
Any bonds issued by CFD No. 2025-1 are not
obligations of the City and will be secured solely by the Special Taxes levied within CFD No. 2025-1.
277
ATTACHMENTS:
1. Resolution of Formation (City of Lincoln CFD No. 2025-1 (Joiner Ranch East)) 4909-8412- 9108_3.docx
2. Resolution of Necessity to Incur Debt (City of Lincoln CFD No. 2025-1 (Joiner Ranch East)) 4933-4906-1204_3.docx
3. Resolution Certifying Election Results (City of Lincoln CFD No. 2025-1 (Joiner Ranch East)) 4921-8848-4180_3.docx
4. Ordinance (City of Lincoln CFD No. 2025-1 (Joiner Ranch East)) 4929-9503-5732_3.docx
5.a. Landowner Waiver (Hearthstone) (City of Lincoln CFD No. 2025-1 (Joiner Ranch East)), 4907-0029-2948_4.docx
5.b. Landowner Waiver (JEN California) (City of Lincoln CFD No. 2025-1 (Joiner Ranch East)), 4923-9046-6132_4.docx
5.c. Landowner Waiver (DR Horton) (City of Lincoln CFD No. 2025-1 (Joiner Ranch East)), 4931-5015-9700_4.docx
6. Confirmation from County Regarding Registered Voters..pdf
7. Acquisition and Funding Agreement (City of Lincoln CFD No. 2025-1 (Joiner Ranch East))- v3.docx
8. Joiner Ranch East CFD Report.pdf
278
Stradling Yocca Carlson & Rauth
Draft of July 23, 2025
4909-8412-9108v3/024161-0011
RESOLUTION NO. ______
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LINCOLN,
CALIFORNIA, ESTABLISHING CITY OF LINCOLN COMMUNITY FACILITIES DISTRICT NO. 2025-1 (JOINER RANCH EAST), AUTHORIZING THE LEVY OF
A SPECIAL TAX THEREIN, CALLING AN ELECTION AND APPROVING AND
AUTHORIZING CERTAIN ACTIONS RELATED THERETO
WHEREAS, the City Council (the “City Council”) of the City of Lincoln (the “City”) has heretofore adopted Resolution No. 25-4839 stating its intention to form City of Lincoln Community Facilities District No. 2025 -1 (Joiner Ranch East) (“Community Facilities District No. 2025-1” or the “District”) pursuant to the Mello -Roos Community Facilities Act of 1982, as amended, being Chapter 2.5 of Part 1 of Division 2 of Title 5 of the Government Code of the State of California (the “Act”); and
WHEREAS, a copy of Resolution No. 2025-087 setting forth a description of the proposed boundaries of Community Facilities District No. 2025-1, the facilities and incidental expenses to be financed by the District and the rate and method of apportionment of the special tax proposed to be levied within the District is on file with the City Clerk; and WHEREAS, notice was published and mailed to all landowners of the land proposed to be included within the District as required by law relative to the intention of this City Council to form proposed Community Facilities District No. 2025-1 and to levy a special ta x (the “Special Tax”) and to incur bonded indebtedness in one or more series in the maximum aggregate principal amount of $23,500,000 therein to finance the facilities and incidental expenses described in Resolution No. 2025-087; and
WHEREAS, on August 12, 2025, this City Council conducted a noticed public hearing as required by law relative to the proposed formation of Community Facilities District No. 2025-1, the levy of the Special Tax therein and the issuance of bonded indebtedness by the District; and WHEREAS, at the August 12, 2025, public hearing there was filed with this City Council a report containing a description of the facilities necessary to meet the needs of the District and an estimate of the cost of such facilities as required by Section 533 21.5 of the Act (the “ CFD Report”); and
WHEREAS, at the August 12, 2025, public hearing all persons desiring to be heard on all matters pertaining to the formation of Community Facilities District No. 2025-1, the levy of the Special Tax and the issuance of bonded indebtedness were heard and full and fair hearings were held; and
WHEREAS, following the public hearing, this City Council has determined to authorize the formation of the District to finance the types of facilities (the “Facilities”) and the incid ental expenses (the “Incidental Expenses”) set forth in Exhibit A hereto, which are described in more detail in the CFD Report; and
WHEREAS, at the public hearing evidence was presented to this City Council on the matters before it, and the proposed Special Tax to be levied within the District was not precluded by a majority protest of the type described in Section 53324 of the Act, and this City Council at the conclusion of the hearing was fully advised as to all matters relating to the formation of the District, the levy of the Special Tax and the issuance of bonded indebtedness therein; and 279
2 4909-8412-9108v3/024161-0011
WHEREAS, this City Council has determined, based on a Certificate of Registrar of Voters of the County of Placer on file in the office of the City Clerk, that no registered voters have been residing in the proposed boundaries of Community Facilities District No. 2025-1 for each of the 90 days prior to August 12, 2025 and that the qualified electors in Community Facilities District No. 2025-1 are the landowners within the District; and
WHEREAS, on the basis of all of the foregoing, this City Council has determined to proceed with the establishment of Community Facilities District No. 2025-1 and to call an election therein to authorize (i) the levy of Special Tax pursuant to the rate and method of apportionment of the special tax, as set forth in Attachment C to Resolution No. 2025-087 (the “Rate and Method”), (ii) the issuance of bonds to finance the Facilities and Incidental Expenses, and (iii) the establishment of an appropriations limit for Community Facilities District No. 2025-1; and WHEREAS, in order to facilitate the funding of the Facilities to be owned and operated by the City, the legislative body of the District desires to enter into a n Acquisition, Construction and Funding Agreement (the “Acquisition Agreement”) with JEN California 24 LLC, a California limited liability company (the “Developer”) and the form of the Acquisition Agreement is on file with the City Clerk; and
NOW, THEREFORE, BE IT RESOLVED BY THE CIT Y COUNCIL OF THE CITY OF LINCOLN AS FOLLOWS:
Section 1. The above recitals is true and correct.
Section 2. A community facilities district to be designated “City of Lincoln Community Facilities District No. 2025-1 (Joiner Ranch East)” is hereby established pursuant to the Act. The City Council hereby finds and determines that all prior proceedings taken with respect to the establishment of the District were valid and in conformity with the requirements of law, including the Act. This finding is made in accordance with the provisions of Section 53325.1(b) of the Act.
Section 3. The boundaries of Community Facilities District No. 2025-1 are established as shown on the map designated “ Proposed Boundaries of City of Lincoln Community Facilities District No. 2025-1 (Joiner Ranch East), County of Placer, State of California”, which map is on file in the office of the City Clerk and was recorded pursuant to Sections 3111 and 3113 of the Streets and Highways Code in the County Book of Maps of Assessment and Community Facilities Districts in the office of the County Recorder of the County of Placer, State of California in Book No. 5 at Page No. 38 on June 30, 2025 as Instrument No. 2025-0035114.
Section 4. The types of Facilities and Incidental Expenses authorized t o be provided for Community Facilities District No. 2025-1 are those set forth in Exhibit A attached hereto. The estimated cost of the Facilities and Incidental Expenses to be financed is set forth in the CFD Report, which estimates may change as the Facilities are designed and bid for construction and acquisition, as applicable.
The City is authorized by the Act to contribute revenue to, or to construct or acquire the Facilities, all in accordance with the Act. The City Council finds and determines that the proposed Facilities are necessary to meet the increased demand that will be placed upon local agencies and public infrastructure as a result of new development within the District and that the Facilities to be financed, including those to be financed p ursuant to any joint community facilities agreements entered into with the County of Placer and/or the South Placer Regional Transportation Authority, benefit residents of the City and the future residents of the District. 280
3 4909-8412-9108v3/024161-0011
Section 5. Except where funds are otherwise available, it is the intention of this City Council, subject to the approval of the eligible voters of the District, to levy annually a Special Tax at the rates set forth in the Rate and Method on all non -exempt property wi thin the District sufficient to pay for (i) the Facilities, (ii) the principal and interest and other periodic costs on the bonds proposed to be issued to finance the Facilities and Incidental Expenses, including the establishment and replenishment of rese rve funds, any remarketing, credit enhancement and liquidity facility fees and other expenses of the type permitted by Section 53345.3 of the Act; and (iii) the Incidental Expenses. The District expects to incur, and in certain cases has already incurred, Incidental Expenses in connection with the creation of the District, the issuance of bonds, the levying and collecting of the Special Tax, the completion and inspection of the Facilities and the annual administration of the bonds and the District. The Ra te and Method is described in detail in Attachment C to Resolution No. 2025-087 and incorporated herein by this reference, and the City Council hereby finds that the Rate and Method contains sufficient detail to allow each landowner within the District to estimate the maximum amount that may be levied against each parcel. As described in greater detail in the CFD Report, which is incorporated by reference herein, the Special Tax is based on the expected demand that each parcel of real property within Community Facilities District No. 2025-1 will place on the Facilities and on the benefit that each parcel will derive from the right to access the Facilities and, accordingly, is hereby determined to be reasonable. The Special Tax shall be levied on each assessor’s parcel in accordance with the Rate and Method provided, however, that the Special Tax shall not be levied after Fiscal Year 2065-66. The Special Tax is apportioned to each parcel on the foregoing bases pursuant to Section 53325.3 of the Act and such Special Tax is not on or based upon the ownership of real property or the assessed value of real property.
If Special Taxes of the District are levied against any parcel used for private residential purposes, (i) the maximum Special Tax rate shall be specified as a dollar amount which shall be calculated and established not later than the date on which the parcel is first subject to the Special Tax because of its use for private residential purposes and shall not be increased over time except as authorized under the Rate and Method, (ii) the Special Tax shall not be levied after Fiscal Year 2065-66, and (iii) under no circumstances will the Special Tax levied against any such parcel used for private residential uses be increased as a consequence of delinquency or default by the owner or owners of any other parcel or parcels within the District by more than ten percent above the amount that would have been levied in that fiscal year had there never been any such delinquencies or defaults.
The City Manager of the City of Lincoln, will be responsible for preparing annually, or authorizing a designee to prepare, a current roll of special tax levy obligations by assessor’s parcel number and will be responsible for estimating future special tax levies pursuant to Section 53340.2 of the Act.
Section 6. In the event that a portion of the property within Community Facilities District No. 2025-1 shall become for any reason exempt, wholly or partially, from the levy of the Special Tax specified in the Rate and Method, or in the event of delinquencies in the payment of Special Taxes levied, the City Council shall, on behalf of Community Facilities District No. 2025- 1, increase the levy to the extent necessary and permitted by law and these proceedings (including the maximum special tax set forth in the Rate and Method) upon the remaining property within Community Facilities District No. 2025-1 which is not exempt or delinquent in order to yield the required debt service payments on any outstanding bonds of the District, or to prevent the District from defaulting on any of its other obligations or liabilities; provided, however, under no circumstances will the Special Tax levied against any parcel used for private residential uses be increased as a consequence of delinquency or default by the owner or owners of any other parcel 281
4 4909-8412-9108v3/024161-0011
or parcels within the District by more than ten percent above the amount that would have been levied in that fiscal year had there never been any such delinquencies or defaults. The amount of the Special Tax will be set in accordance with the Rate and Method. The obligation to pay Special Taxes may be prepaid only as set forth in Section H of the Rate and Method.
Section 7. Upon recordation of a notice of special tax lien pursuant to Section 3114.5 of the Streets and Highways Code, a continuing lien to secure each levy of the Special Tax shall attach to all non-exempt real property in the District and this lien shall continue in force and effect until the Special Tax obligation is prepaid and permanently satisfied and the li en canceled in accordance with law or until collection of the Special Tax by the District ceases.
Section 8. Consistent with Section 53325.6 of the Act, the City Council finds and determines that the land within Community Facilities District No. 2025-1, if any, devoted primarily to agricultural, timber or livestock uses and being used for the commercial production of agricultural, timber or livestock products is contiguous to other land within Community Facilities District No. 2025-1 and will be benefited by the Facilities proposed to be provided within Community Facilities District No. 2025-1.
Section 9. It is hereby further determined that there is no ad valorem property tax currently being levied on property within proposed Community Facilities District No. 2025-1 for the exclusive purpose of paying the principal of or interest on bonds or other indebtedness incurred to finance the construction of capital facilities which provide the same services to the territory of Community Facilities District No. 2025-1 as are proposed to be provided by the Facilities to be financed by Community Facilities District No. 2025-1.
Section 10. Written protests against the establishment of the District have not been filed by one-half or more of the registered voters within the boundaries of the District or by the property owners of one-half (1/2) or more of the area of land within the District. The City Council hereby finds that the proposed Special Tax has not been precluded by a majority protest pursuant to Section 53324 of the Act.
Section 11. An election is hereby called for Community Facilities District No. 2025-1 on the propositions of levying the Special Tax on the property within Community Facilities District No. 2025-1 and establishing an appropriations limit for the District pursuant to Section 53325.7 of the Act and shall be consolidated with the election on the proposition of incurring bonded indebtedness, pursuant to Sections 53351 and 53353.5 of the Act. The language of the propositions to be placed on the ballot is attached hereto as Exhibit B.
Section 12. The date of the election for Community Facilities District No. 2025-1 on the propositions of incurring the bonded indebtedness, authorizing the levy of the Special Tax and establishing an appropriations limit for the District shall be August 12, 2025, or such later date as is consented to by the City Clerk or Deputy City Clerk (referred to herein as the “City Clerk”) of the City of Lincoln; provided that, if the election is to take place sooner than 90 days after August 12, 2025, then the unanimous written consent of each qualified elector within the District to such election date must be obtained. The polls shall be open for said election immediately following the close of the public hearing on August 12, 2025. The election shall be conducted by the City Clerk. Except as otherwise provided by the Act, the election shall be conducted in accordance with the provisions of law regulating elections of the City of Lincoln insofar as such provisions are determined by the City Clerk to be applicable. The City Clerk is authorized to conduct the election following the adoption of this resolution, and all ballots shall be received by, and the City Clerk shall close the election by, 11:00 p.m. on the election day; provided the election shall be closed 282
5 4909-8412-9108v3/024161-0011
at such earlier time as all qualified electors have voted as provided in Section 53326(d) of the Act.
Pursuant to Section 53326 of the Act, the ballots for the special election shall be distributed in person, or by mail with return postage prepaid, to the qualified electors wi thin Community Facilities District No. 2025-1. The City Clerk has secured a certificate from the Registrar of Voters of the County of Placer certifying that there were no registered voters within the District.
Accordingly, since there were fewer than 12 registered voters within the District for each of the 90 days preceding August 12, 2025, the qualified electors shall be the landowners within the District and each landowner, or the authorized representative thereof, shall have one vote for each acre or portion thereof that such landowner owns within Community Facilities District No. 2025-1, as provided in Section 53326 of the Act. Each landowner within the District has executed and delivered a waiver of certain election law requirements and consenting to the holding of the election on August 12, 2025, which waiver is on file with the City Clerk.
Section 13. The preparation of the CFD Report is hereby ratified. The CFD Report, as submitted, is hereby approved and was made a part of the record of the public hearing regarding the formation of Community Facilities District No. 2025-1. The CFD Report is ordered to be kept on file with the transcript of these proceedings and open for public inspection.
Section 14. The District may accept advances of funds or work-in-kind from any source, including, but not limited to, private persons or private entities, for any authorized purpose, including, but not limited to, paying any cost incurred in creating Community Facilities District No. 2025-1. The District may enter into an agreement with the person or entity advancing the funds or work-in-kind, to repay all or a portion of the funds advanced, or to reimburse the person or entity for the value, or cost, whichever is less, of the work -in-kind, as dete rmined by the City Council, with or without interest.
Section 15. The form of the Acquisition Agreement on file with the City Clerk is approved as to form, and each of the Mayor, the City Manager, the Assistant City Manager, or their written designees, are authorized to execute the Acquisition Agreement in substantially the form on file with the City Clerk, together with such changes as are approved by the officer executing the same, with the approval of such changes to be conclusively evidenced by the execution and delivery thereof.
Section 16. This Resolution shall be effective upon its adoption.
PASSED AND ADOPTED this 12th day of August, 2025, by the following vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
RECUSED:
______________________________
Holly Andreatta, Mayor
[Seal]
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ATTEST:
_______________________________
Hope Ithurburn, City Clerk
284
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EXHIBIT A
TYPES OF FACILITIES TO BE FINANCED BY
CITY OF LINCOLN
COMMUNITY FACILITIES DISTRICT NO. 2025-1
(JOINER RANCH EAST)
The proposed types of public facilities and expenses to be financed by the District include:
The construction, purchase, modification, expansion, rehabilitation and/or improvement of (i) sewer, water, storm drain, street and traffic facilities, and other public facilities of the City, including the foregoing public facilities which are included in the City’s fee programs with respect to such facilities and authorized to be financed under the Act (the “City Facilities”); (ii) capital facilities of the County of Placer which are included in the County’s Capital Facility Fee program and are authorized to be financed under the Act (the “County Facilities”); and (iii) capital facilities of the South Placer Regional Transportation Authority which are included in the Authority’s fee programs and are authorized to be financed under the Act (the “Transportat ion Facilities” and, together with the City Facilities and the County Facilities, the “Facilities”), and all appurtenances and appurtenant work in connection with the foregoing Facilities, including the cost of engineering, planning, designing, materials t esting, coordination, construction staking, construction management and supervision for such Facilities , and to finance the incidental expenses to be incurred, including:
a. The cost of engineering, planning and designing the Facilities; b. All costs, incl uding costs of the property owner petitioning to form the District, associated with the creation of the District, the issuance of the bonds, the determination of the amount of special taxes to be levied and costs otherwise incurred in order to carry out th e authorized purposes of the District; and
c. Any other expenses incidental to the construction, acquisition, modification, rehabilitation, completion and inspection of the Facilities.
Capitalized terms used and not defined herein shall have the meaning set forth in the Rate and Method of Apportionment of Special Taxes for the District.
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EXHIBIT B
BALLOT PROPOSITIONS
CITY OF LINCOLN
COMMUNITY FACILITIES DISTRICT NO. 2025-1
(JOINER RANCH EAST)
SPECIAL TAX AND SPECIAL BOND ELECTION
August 12, 2025
PROPOSITION A: Shall City of Lincoln Community
Facilities District No. 2025 -1 (Joiner Ranch East) (the “District”) incur an indebtedness and issue bonds in one or more series in the maximum aggregate principal
amount of $23,500,000, with interest at a rate or rates not to exceed the maximum interest rate permitted by law, to finance the Facilities and the Incidental Expenses
described in Resolution No. 2025-087 of the City Council of the City of Lincoln?
PROPOSITION B: Shall a special tax with a rate and
method of apportionment as provided in Resolution No.
2025-087 of the City Council of the City of Lincoln be
levied to pay for the Facilities, Incidental Expenses and other purposes described in Resolution No. 2025-087
including the payment of the principal of and interest on bonds issued to finance the Facilities and Incidental
Expenses?
YES______
NO_______
YES______
NO_______
PROPOSITION C: For each year commencing with
Fiscal Year 2025-26, shall the appropriations limit, as defined by subdivision (h) of Section 8 of Article XIII B of the California Constitution, for the District be an amount equal to $10,000,000?
YES______
NO_______
286
Stradling Yocca Carlson & Rauth
Draft of July 23, 2025
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RESOLUTION NO. _____
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LINCOLN,
CALIFORNIA, ACTING AS THE LEGISLATIVE BODY OF CITY OF LINCOLN COMMUNITY FACILITIES DISTRICT NO. 2025 -1 (JOINER RANCH EAST)
DETERMINING THE NECESSITY TO INCUR BONDED INDEBTEDNESS IN AN AMOUNT NOT TO EXCEED $ 23,500,000 WITHIN CITY OF LINCOLN COMMUNITY FACILITIES DISTRICT NO. 2025-1 (JOINER RANCH EAST) AND
CALLING AN ELECTION THEREIN
WHEREAS, on June 24, 2025, the City Council of the City of Lincoln (the “City Council”) adopted Resolution No. 2025-087 stating its intention to form City of Lincoln Community Facilities District No. 2025 -1 (Joiner Ranch East) (“Community Facilities District No. 2025-1” or the “District”) pursuant to the Mello-Roos Community Facilities Act of 1982, as amended (the “Act”); and
WHEREAS, on June 24, 2025, the City Council also adopted Resolution No. 2025-088 stating its intention to incur bonded indebtedness in the maximum aggregate principal amount of $23,500,000 within proposed Community Facilities District No. 2025-1 to finance (1) the purchase, construction, modification, expansion, improvement or rehabilitation of public facilities identified in Exhibit B to Resolution No. 2025-087 and (2) the incidental expenses to be incurred in financing such public facilities and services and forming and administering the Distric t, as identified in Exhibit B to Resolution No. 2025-087; and
WHEREAS, notice was published as required by law relati ve to the intention of the City Council to form proposed Community Facilities District No. 2025-1 and to incur bonded indebtedness in the maximum aggregate principal amount of $23,500,000 within the boundaries of proposed Community Facilities District No. 2025-1; and WHEREAS, on August 12, 2025, this City Council conducted a noticed public hearing to determine whether it should proceed with the formation of Community Facilities District No. 2025- 1, issue bonds to pay for the facilities and incidental expenses described in Resolution No. 2025- 087 and authorize the rate and method of apportionment of a special tax to be levied within Community Facilities District No. 2025-1 for the purposes described in Resolution No. 2025-087; and
WHEREAS, at said hearing all persons desiring to be heard on all matters pertaining to the formation of Community Facilities District No. 2025-1, the levy of a special tax and the issuance of bonds to pay for the cost of the proposed facilities and incidental expenses were heard and a full and fair hearing was held; and
WHEREAS, the City Council subsequent to such hearing adopted Resolution No. _____ establishing Community Facilities District No. 2025-1 (the “Resolution of Formation”) and authorizing the financing of the public facilities (the “Facilities”) and the incidental expenses (the “Incidental Expenses”) described in Exhibit A thereto; and WHEREAS, the City Council desires to make the necessary findings to incur bonded indebtedness within the District, to declare the purpose fo r said debt, and to authorize the submittal of a proposition to issue bonded indebtedness to the voters of the District, being the landowners within the proposed District, all as authorized and required by law; 287
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NOW, THEREFORE, BE IT RESOLVED BY THE CITY CO UNCIL OF THE CITY OF LINCOLN AS FOLLOWS:
Section 1. It is necessary to incur bonded indebtedness in one or more series in a maximum aggregate principal amount of $23,500,000 within Community Facilities District No. 2025-1.
Section 2. The indebtedness is to be incurred for the purpose of financing the costs of purchasing, constructing, modifying, expanding, improving, or rehabilitating the Facilities and financing the Incidental Expenses, as described in the Resolution of Formation, and carrying out the powers and purposes of Community Facilities District No. 2025-1, including, but not limited to, financing the costs of selling the bonds, establishing and replenishing bond reserve funds and paying remarketing, credit enhancement and liquidity facility fees and other expenses of the type authorized by Section 53345.3 of the Act.
Section 3. The whole of the property within Community Facilities District No. 2025-1, other than property exempted from the special tax pursuant to the provisions of the rate and method of apportionment attached to Resolution No. 25-4839 as Exhibit C, shall pay for the bonded indebtedness pursuant to the levy of the special tax authorized by the Resolution of Formation.
Section 4. The maximum term of the bonds to be issued shall in no event exceed 35 years or such longer term as is then permitted by law.
Section 5. The bonds shall bear interest at the rate or rates not to exceed the maximum interest rate permitted by law, payable annually or semiannually, or in part annually and in part semiannually, except the first interest payment may be for a period of less than six months, with the actual rate or rates and times of payment to be determined at the time or times of sale thereof.
Section 6. The bonds may bear a variable or fixed interest rate, pro vided that such variable rate or fixed rate shall not exceed the maximum rate permitted by Section 53531 of the Act, or any other applicable provision of law limiting the maximum interest rate on the bonds.
Section 7. Pursuant to Section 53351 of the Act, a special election is hereby called for Community Facilities District No. 2025-1 on the proposition of incurring the bonded indebtedness.
The proposition relative to incurring bonded indebtedness in the maximum aggregate principal amount of $ 23,500,000 shall be in t he form of Proposition A set forth in Exhibit A hereto. In accordance with Sections 53351(h) and 53353.5 of the Act, the election shall be consolidated with the special election called on the proposition of levying a special tax within the District as described in the Resolution of Formation, which proposition shall be in the form of Proposition B set forth in Exhibit A, and on the proposition of establishing an appropriations limit for the District, which proposition shall be in the form of Proposition C set forth in Exhibit A. 288
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Section 8. The date of the special election for Community Facilities District No. 2025- 1 on the propositions of incurring the bonded indebtedness, authorizing the levy of the special tax and setting an appropriations limit shall be August 12, 2025, or such later date as is consented to by the City Clerk, or a Deputy City Clerk of the City (referred to herein as the “City Clerk”); provided that, if the election is to take place sooner than 90 days after August 12, 2025, then the unanimous written consent of each qualified elector within the District to such election date must be obtained.
The polls shall be open for said election immediately following the public hearing on August 12, 2025. The election shall be conducted by the City Clerk. Except as otherwise provided by the Act, the election shall be conducted in accordance with the provisions of law regulating elections of the City of Lincoln insofar as such provisions are determined by the City Clerk to be applicable.
The City Clerk is authorized to conduct the election following the ad option of the Resolution of Formation, and this resolution and all ballots shall be received by and the City Clerk shall close the election by 11:00 p.m. on the election day; provided the election shall be closed at such earlier time as all qualified electors have voted as provided in Section 53326(d) of the Act. Pursuant to Section 53326 of the Act, the ballots for the special election shall be distributed in person, or by mail with return postage prepaid, to the qualified electors within Community Facilities District No. 2025-1. The City Clerk has secured a certificate of the Registrar of Voters of the County of Riverside certifying that there were no registered voters within the District. Accordingly, since there were fewer than 12 registered voters wi thin the District for each of the 90 days preceding August 12 , 2025 , the qualified electors shall be the landowners within the District and each landowner, or the authorized representative thereof, shall have one vote for each acre or portion thereof that such landowner owns within Community Facilities District No. 2025-1, as provided in Section 53326 of the Act. Each landowner within the District has executed and delivered a waiver of certain election law requirements and consenting to the holding of the election on August 12, 2025, which waiver is on file with the City Clerk.
Section 9. This Resolution shall be effective upon its adoption.
PASSED AND ADOPTED this 12th day of August, 2025, by the following vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
RECUSED:
______________________________
Holly Andreatta, Mayor
[Seal]
ATTEST:
_______________________________
Hope Ithurburn, City Clerk
289
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EXHIBIT A
BALLOT PROPOSITIONS
CITY OF LINCOLN
COMMUNITY FACILITIES DISTRICT NO. 2025-1
(JOINER RANCH EAST)
SPECIAL TAX AND SPECIAL BOND ELECTION
August 12, 2025
PROPOSITION A: Shall City of Lincoln Community
Facilities District No. 2025 -1 (Joiner Ranch East) (the “District”) incur an indebtedness and issue bonds in one or more series in the maximum aggregate principal
amount of $23,500,000, with interest at a rate or rates not to exceed the maximum interest rate permitted by law, to finance the Facilities and the Incidental Expenses
described in Resolution No. 2025-087 of the City Council of the City of Lincoln?
PROPOSITION B: Shall a special tax with a rate and
method of apportionment as provided in Resolution No.
2025-087 of the City Council of the City of Lincoln be
levied to pay for the Facilities, Incidental Expenses and other purposes described in Resolution No. 2025-087,
including the payment of the princip al of and interest on bonds issued to finance the Facilities and Incidental
Expenses?
YES______
NO_______
YES______
NO_______
PROPOSITION C: For each year commencing with
Fiscal Year 2025 -26, shall the appropriations limit, as defined by subdivision (h) of Section 8 of Article XIII B of the California Constitution, for the District be an amount equal to $10,000,000?
YES______
NO_______
290
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Draft of July 23, 2025
4921-8848-4180v3/024161-0011
RESOLUTION NO. _____
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LINCOLN,
CALIFORNIA, ACTING IN ITS CAPACITY AS THE LEGISLATIVE BODY OF
CITY OF LINCOLN, CALIFORNIA, ESTABLISHING CITY OF LINCOLN COMMUNITY FACILITIES DISTRICT NO. 2025 -1 (JOINER RANCH EAST)
CERTIFYING ELECTION RESULTS
WHEREAS, the City Council of the City of Lincoln called and duly held an election on August 12, 2025 within the boundaries of City of Lincoln Community Facilities District No. 2025- 1 (Joiner Ranch East) (“Community Facilities District No. 2025-1” or the “District”) pursuant to Resolution Nos. _____ and _____ for the purpose of presenting to the qualified electors within the District Propositions A, B and C, attached hereto as Exhibit A; and WHEREAS, there has been presented to this City Council a certificate of the City Clerk or Deputy City Clerk (referred to herein as the “City Clerk”) canvassing the results of the election, a copy of which is attached hereto as Exhibit B;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LINCOLN AS FOLLOWS:
Section 1. Each of the above recitals is true and correct and i s adopted by the legislative body of the District.
Section 2. Propositions A, B and C presented to the qualified electors of the District on August 12, 2025 were approved by more than two-thirds of the votes cast at said election and Propositions A, B and C each has carried. The City Council, acting as the legislative body of the District, is hereby authorized to levy on the land within the District the special tax described in Proposition B for the purposes described therein and to take the necessary steps to levy t he special tax authorized by Proposition B and to issue bonds in one or more series in the maximum aggregate principal amount of $23,500,000 specified in Proposition A.
Section 3. The City Clerk is hereby directed to record in the Assessor -County Clerk- Recorder’s office of the County of Riverside within fifteen days of the date hereof a notice of special tax lien with respect to the District which Bond Counsel to the District shall prepare in the form required by Streets and Highways Code Section 3114.5.
Section 4. This Resolution shall be effective upon its adoption. 291
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PASSED AND ADOPTED this 12th day of August, 2025, by the following vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
RECUSED:
______________________________
Holly Andreatta, Mayor
[Seal]
ATTEST:
_______________________________
Hope Ithurburn, City Clerk
292
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EXHIBIT A
BALLOT PROPOSITIONS
CITY OF LINCOLN
COMMUNITY FACILITIES DISTRICT NO. 2025-1
(JOINER RANCH EAST)
SPECIAL TAX AND SPECIAL BOND ELECTION
August 12, 2025
PROPOSITION A: Shall City of Lincoln Community
Facilities District No. 2025 -1 (Joiner Ranch East) (the “District”) incur an indebtedness and issue bonds in one or more series in the maximum aggregate principal
amount of $23,500,000, with interest at a rate or rates not to exceed the maximum interest rate permitted by law, to finance the Facilities and the Incidental Expenses
described in Resolution No. 2025-087 of the City Council of the City of Lincoln?
PROPOSITION B: Shall a special tax with a rate and
method of apportionment as provided in Resolution No.
2025-087 of the City Council of the City of Lincoln be
levied to pay for the Facilities, Incidental Expenses and other purposes described in Resolution No. 2025-087,
including the payment of the principal of and interest on bonds issued to finance the Faci lities and Incidental
Expenses?
YES______
NO_______
YES______
NO_______
PROPOSITION C: For each year commencing with
Fiscal Year 2025 -26, shall the appropriations limit, as defined by subdivision (h) of Section 8 of Article XIII B of the California Constitution, for the District be an amount equal to $10,000,000?
YES______
NO_______
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EXHIBIT B
CERTIFICATE OF CITY CLERK
AS TO THE RESULTS OF THE CANVASS OF THE ELECTION RETURNS I, Hope Ithurburn, City Clerk of the City of Lincoln, do hereby certify that I have examined the returns of the Special Tax and Bond Election for City of Lincoln Community Facilities District No. 2025-1 (Joiner Ranch East). The election was held at the City of Lincoln City Hall 3 rd Floor Council Chambers, 6 00 Sixth Street, Lincoln, California , on August 12, 2025. I caused to be delivered ballots to each qualified elector. Three (3) ballots were returned.
I further certify that the results of said election and the number of votes cast for and against Propositions A, B, and C are as follows:
PROPOSITION A PROPOSITION B PROPOSITION C
YES: YES: YES:
NO: NO: NO:
TOTAL: TOTAL: TOTAL:
Dated this 12th day of August, 2025.
HOPE ITHURBURN, CITY CLERK
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ORDINANCE NO. _____
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LINCOLN,
CALIFORNIA, ACTING I N ITS CAPACITY AS TH E LEGISLATIVE BODY O F CITY OF LINCOLN COMM UNITY FACILITIES DISTRICT NO. 2025-1 (JOINER
RANCH EAST) AUTHORIZING THE LEVY OF SPECIAL TAXES
WHEREAS, on June 24, 2025, the City Council (the “City Council”) of the City of Lincoln (the “City”) adopted Resolution No. 2025-087 declaring its intention to form City of Lincoln Community Facilities District No. 2025-1 (Joiner Ranch East) (the “District”) pursuant to the Mello- Roos Community Facilities Act of 1982, as amended, comprising Chapter 2.5 of Part 1 of Division 2 of Title 5 of the Government Code of the State of California (the “Act”), and its Resolution No. 2025-088 declaring its intention to incur bonded indebtedness for the District; and WHEREAS, on August 12, 2025, after providing all notice required by the Act, the Ci ty Council conducted a noticed public hearing required by the Act relative to the proposed formation of the District, the proposed levy of a special tax therein to finance certain public facilities described in Resolution No. 2025-087 and to secure the payment of any bonded indebtedness of the District, and the proposed issuance of bonded indebtedness in one or more series in the maximum aggregate principal amount of $ 23,500,000, as described in Resolution No. 25-088; and
WHEREAS, at the August 12, 2025 public hearing, all persons desiring to be heard on all matters pertaining to the formation of the District and the proposed levy of the special tax to finance the facilities described in Resolution No. 2025-087 and to secure the payment of bonded indebtedness in the maximum aggregate principal amount of $ 23,500,000 of the District as described in Resolution No. 2025-088 (the “Bonds”) were heard and a full and fair hearing was held; and
WHEREAS, on August 12, 2025, the City Council adopted Resolution Nos. ______ and _____ which formed the District and called a special election within the District on August 12, 2025 on three propositions relating to the levy of a special tax within the District, the issuance of the Bonds and the establishment of an appropriations limit within the District; and WHEREAS, on August 12, 2025, a special election was held within the District at which the qualified electors approved by more than a two thirds vote Propositions A, B, and C authorizing the levy of a special tax within the District for the purposes described in Resolution _____, the issuance of the Bonds as described in Resolution No. _____ and establishing an appropriations limit for the District; and
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF LINCOLN, CALIFORNIA,
ACTING IN ITS CAPACITY AS THE LEGISLATIVE BODY OF CITY OF LINCOLN COMMUNITY FACILITIES DISTRICT NO. 2025 -1 (JOINER R ANCH EAST) DOES HEREBY ORDAIN AS FOLLOWS:
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Section 1. The above recitals are all true and correct.
Section 2. By the passage of this Ordinance, the City Council authorizes and levies special taxes within the District pursuant to Sections 53328 and 53340 of the Act at the rates and in accordance with the rate and method of apportionment set forth in Attachment C to Resolution No. 2025-087, which is incorporated by r eference herein (the “Rate and Method”). The special taxes are hereby levied commencing in the fiscal year specified in the Rate and Method and in each fiscal year thereafter until payment in full of the Bonds (including any bonds issued to refund the Bonds), payment of all costs of the public facilities and services authorized to be financed by the District, and payment of all costs of administering the District.
Section 3. Each of the Mayor, the City Manager, the Assistant City Manager , the Director of Finance, or their written designees (each, an “Authorized Officer”), acting alone, is hereby authorized and directed each fiscal year to determine the specific special tax rates and amounts to be levied in such fiscal year on each parcel of real property within the Di strict, in the manner and as provided in the Rate and Method. The special tax rate levied on a parcel pursuant to the Rate and Method shall not exceed the maximum rate set forth in the Rate and Method for such parcel, but the special tax may be levied at a lower rate. Each Authorized Officer is hereby authorized and directed to provide all necessary information to the Treasurer-Tax Collector of the County of Placer and to otherwise take all actions necessary in order to effect proper billing and collection of the special tax, so that the special tax shall be levied and collected in sufficient amounts and at times necessary to satisfy the financial obligations of the District in each fiscal year, and with respect to Special Tax, until the Bonds are paid in full, the facilities have been paid for, and provision has been made for payment of all of the administrative costs of the District.
Section 4. Properties or entities of the state, federal or other local governments shall be exempt from the special tax, except as otherwise provided in Sections 53317.3 and 53317.5 of the Act and Section G of the Rate and Method. No other properties or entities are exempt from the special tax unless the properties or entities are expressly exempted in Resolution No. _____ or in a resolution of consideration to levy a new special tax or special taxes or to alter the rate or method of apportionment or an existing special tax as provided in Section 53334 of the Act.
Section 5. All of the collections of the special tax shall be used as provided for in the Act, the Rate and Method and Resolution No. _____.
Section 6. The special tax shall be collected in the same manner as ordinary ad valorem property taxes are collected an d shall be subject to the same penalties and the same procedure, sale and lien priority in case of delinquency as is provided for ad valorem taxes (which such procedures include the exercise of all rights and remedies permitted by law to make corrections, including, but not limited to, the issuance of amended or supplemental tax bills), as such procedure may be modified by law or by this City Council from time to time.
Section 7. As a cumulative remedy, if any amount levied as a special tax for payment of the interest or principal of the Bonds (including any bonds issued to refund the Bonds), together with any penalties and other charges accruing under this Ordinance, are not paid when due, the City Council may, not later than four years after the due date of the last installment of principal on the Bonds (including any bonds issued to refund the Bonds), order that the same be collected by an action brought in the superior court to foreclose the lien of such special tax, as authorized by the Act.
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Section 8. The Mayor of the City shall sign this Ordinance and the City Clerk or Deputy City Clerk (referred to herein as the “City Clerk”) shall attest to the Mayor’s signature and then cause the same to be published within fifteen (15) days after its passage at least once in ___________, a newspaper of general circulation published and circulated in the City of Lincoln.
Section 9. The specific authorization for adoption of this Ordinance is pursuant to the provisions of Section 53340 of the Act.
Section 10. The City Clerk is hereby authorized to transmit a certified copy of this ordinance to the Treasurer -Tax Collector of the County of Placer, and to perform all other acts which are required by the Act, this Ordinance or by law in order to accomplish the purpose of this Ordinance.
Section 11. A full reading of this Ordinance is dispensed with prior to its final passage, a written or printed copy having been available to the City Council and the public a day prior to its final passage.
Section 12. This Ordinance shall take effect thirty days after its final passage.
PASSED AND ADOPTED this ______ day of _____, 2025, by the following vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
RECUSED:
______________________________
Holly Andreatta, Mayor
[Seal]
ATTEST:
_______________________________
Hope Ithurburn, City Clerk
297
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WAIVER OF CERTAIN ELECTION PROCEDURES
WITH RESPECT TO LANDOWNER ELECTION FOR
CITY OF LINCOLN COMMUNITY FACILITIES DISTRICT NO. 2025-1 (JOINER RANCH EAST)
The undersigned, Steve C. Porath, acting on behalf of Jasper-Lincoln, L.P., a Delaware limited partnership (the “Owner”), hereby certifies to the City of Lincoln (the “City”), with respect to the proposed formation of City of Lincoln Community Facilities District No. 2025 -1 (Joiner Ranch East) (the “District”), as follows:
1. The undersigned has been duly authorized by the Owner and possesses all authority necessary to execute this Waiver on behalf of the Owner in connection with the election to be called by the City Council of the City with respect to the District. The Owner hereby appoints Steve C. Porath to act as its authorized representative to vote in the election referred to herein and certifies that his true and exact signature is set forth below:
Signature of Steve C. Porath: __________________________________
2. The Owner is the present owner of 5.13 acres of land located within the proposed boundaries of the District. T o the actual knowledge of the undersigned, t here are no registered voters residing within the territory owned by the Owner and have been none during the 90-day period preceding August 12, 2025.
3. The Owner has received notice of the August 12, 2025 public hearing to be held by the City Council of the City regarding the levy of a special tax in the District and the incurring of bonded indebtedness by the District. The Owner agrees that it received adequate notice of the August 12 , 2025 hearing and consents to the holding of the public hearing on August 12, 2025.
4. The Owner has received from the City and t he City has made available to the Owner necessary and relevant information regarding the proposed formation of the District and the imposition of the special tax and the issuance of bonded indebtedness, as set forth in Resolution Nos. 2025-087 and 2025-088 adopted by the City Council on June 24, 2025 (together, the “Resolutions”) to finance the facilities as set forth in the Resolutions.
5. The undersigned understands that if the District is formed on or after August 12, 2025, an election will be held by the District on the propositions set forth in the sample ballot attached hereto as Exhibit “A” less than 90 days after the close of the August 12, 2025 public hearing as in accordance with Section 53326 of the Government Code, without the preparation of an i mpartial analysis, arguments or rebuttals concerning the election as provided for by Elections Code Sections 9160 to 9167, inclusive, and 9190 and without preparation of a tax rate statement as provided in Section 9401 of the Elections Code and without fur ther notice of such election as required pursuant to the Elections Code or the Government Code. Having been fully advised with respect to the election, in accordance with the authority contained in Government Code Sections 53326 and 53327, the Owner waives compliance with the foregoing provisions of the Elections Code and Government Code, with any time limits or other procedural requirements pertaining to the conduct of the election which are not being complied with and consents to having the election on a ny date on or after the close of the August 12, 2025 public hearing and consents to the closing of the election as soon as all ballots are received by the City Clerk or Deputy City Clerk.
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6. The undersigned hereby represents that compliance with the procedural requirements for conducting the election, including the receipt of any ballot arguments and impartial analysis and the time limitations which apply in connection with scheduling, mailing and publishing notices for such an election, are unnecessary in light of the fact that the undersigned has received sufficient information regarding the imposition of the special tax and the issuance of bonded indebtedness as set forth in the Resolutions to allow it to properly complete the attached ballot. The Owner further waives its right to make any protest or complaint or undertake any legal action challenging the validity of the election, the validity of any bonded indebtedness issued by the Distric t as approved at the election, or the validity of the authorization of the special tax to finance facilities for the benefit of the District or to repay bonded indebtedness issued by the District in accordance with the rate and method of apportionment of s pecial taxes provided in Resolution No. 2025-087 of the City Council of the City.
Dated: August __, 2025
JASPER – LINCOLN, L.P., a
Delaware limited partnership
By: NP-HS LOJV GP VII, LLC, a
Delaware limited liability
company
Its: General Partner
By: ___________________________
Steve C. Porath
Authorized Person
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EXHIBIT A
SAMPLE
OFFICIAL BALLOT
CITY OF LINCOLN
COMMUNITY FACILITIES DISTRICT NO. 2025-1
(JOINER RANCH EAST)
SPECIAL TAX AND SPECIAL BOND ELECTION
August 12, 2025
You are entitled to cast __ votes.
To vote, stamp a cross (+) in the voting square after the word “YES” or after the word “NO”. All marks otherwise made are forbidden. All distinguishing marks are forbidden and make the ballot void.
If you wrongly mark, tear, or deface this ballot, return it to the City Clerk and obtain another.
PROPOSITION A: Shall City of Lincoln Community
Facilities District No. 2025 -1 (Joiner Ranch East) (the “District”) incur an indebtedness and issue bonds in one or more series in the maximum aggregate principal
amount of $23,500,000, with interest at a rate or rates not to exceed the maximum interest rate permitted by
law, to finance the Facilities and the Incidental Expenses described in Resolution No. 2025-087 of the City Council of the City of Lincoln?
PROPOSITION B: Shall a special tax with a rate and
method of apportionment as provided in Resolution No.
2025-087 of the City Council of the City of Lincoln be
levied to pay fo r the Facilities, Incidental Expenses and other purposes described in Resolution No. 2025-087,
including the payment of the principal of and interest on bonds issued to finance the Facilities and Incidental
Expenses?
YES______
NO_______
YES______
NO_______
PROPOSITION C: For each year commencing with
Fiscal Year 2025 -26, shall the appropriations limit, as defined by subdivision (h) of Section 8 of Article XIII B of the California Constitution, for the District be an amount equal to $10,000,000?
YES______
NO_______
300
1 4923-9046-6132/024161-0011
WAIVER OF CERTAIN ELECTION PROCEDURES
WITH RESPECT TO LANDOWNER ELECTION FOR
CITY OF LINCOLN COMMUNITY FACILITIES DISTRICT NO. 2025-1 (JOINER RANCH EAST)
The undersigned, Katherine Hart Johns, acting on behalf of JEN California 24, LLC, a California limited liability company (the “Owner”), hereby certifies to the City of Lincoln (the “City”), with respect to the proposed formation of City of Lincoln Community Facilities District No. 2025-1 (Joiner Ranch East) (the “District”), as follows:
1. The undersigned has been duly authorized by the Owner and possesses all authority necessary to execute this Waiver on behalf of the Owner in connection with the election to be called by the City Council of the City with respect to the District. The Owner hereby appoints Katherine Hart Johns to act as its authorized representative to vote in the election referred to herein and certifies that his true and exact signature is set forth below:
Signature of Katherine Hart Johns: __________________________________
2. The Owner is the present owner of 7.72 acres of land located within the proposed boundaries of the District. T o the actual knowledge of the undersigned, t here are no registered voters residing within the territory owned by the Owner and have been none during the 90-day period preceding August 12, 2025.
3. The Owner has received notice of the August 12, 2025 public hearing to be held by the City Council of the City regarding the levy of a special tax in the District and the incurring of bonded indebtedness by the District . The Owner agrees that it received adequate notice of the August 12 , 2025 hearing and consents to the holding of the public hearing on August 12, 2025.
4. The Owner has received from the City and the City has made available to the Owner necessary and relevant information regarding the proposed formation of the District and the imposition of the special tax and the issuance of bonded indebtedness, as set forth in Resolution No s. 2025-087 and 2025-088 adopted by the City Council on June 24, 2025 (together, the “Resolutions”) to finance the facilities as set forth in the Resolutions.
5. The undersigned understands that if the District is formed on or after August 12, 2025, an election will be held by the District on the propositions set forth in the sample ballot attached hereto as Exhibit “A” less than 90 days after the close of the August 12, 2025 public hearing as in accordance with Section 53326 of the Government Code, without the preparation of an impartial analysis, arguments or rebuttals concerning the election as provided for by Elections Code Sections 9160 to 9167, inclusive, and 9190 and without preparation of a tax rate statement as provided in Section 9401 of th e Elections Code and without further notice of such election as required pursuant to the Elections Code or the Government Code. Having been fully advised with respect to the election, in accordance with the authority contained in Government Code Sections 53326 and 53327, the Owner waives compliance with the foregoing provisions of the Elections Code and Government Code, with any time limits or other procedural requirements pertaining to the conduct of the election which are not being complied with and consents to having the election on any date on or after the close of the August 12, 2025 public hearing and consents to the closing of the election as soon as all ballots are received by the City Clerk or Deputy City Clerk.
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6. The undersigned hereby represents that compliance with the procedural requirements for conducting the election, including the receipt of any ballot arguments and impartial analysis and the time limitations which apply in connection with scheduling, mailing and publishing notices for such an election, are unnecessary in light of the fact that the undersigned has received sufficient information regarding the imposition of the special tax and the issuance of bonded indebtedness as set forth in the Resolution s to allow it to properly complete the attached ballot. The Owner further waives its right to make any protest or complaint or undertake any legal action challenging the validity of the election, the validity of any bonded indebtedness issued by the Distri ct as approved at the election, or the validity of the authorization of the special tax to finance facilities for the benefit of the District or to repay bonded indebtedness issued by the District in accordance with the rate and method of apportionment of special taxes provided in Resolution No. 2025-087 of the City Council of the City.
Dated: August __, 2025
JEN CALIFORNIA 24 LLC,
a California limited liability company
By: __________________________
Katherine Hart Johns, Vice
President
302
A-1
4923-9046-6132/024161-0011
EXHIBIT A
SAMPLE
OFFICIAL BALLOT
CITY OF LINCOLN
COMMUNITY FACILITIES DISTRICT NO. 2025-1
(JOINER RANCH EAST)
SPECIAL TAX AND SPECIAL BOND ELECTION
August 12, 2025
You are entitled to cast __ votes.
To vote, stamp a cross (+) in the voting square after the word “YES” or after the word “NO”. All marks otherwise made are forbidden. All distinguishing marks are forbidden and make the ballot void.
If you wrongly mark, tear, or deface this ballot, return it to the City Clerk and obtain another.
PROPOSITION A: Shall City of Lincoln Community
Facilities District No. 2025 -1 (Joiner Ranch East) (the “District”) incur an indebtedness and issue bonds in one or more series in the maximum aggregate principal
amount of $2 3,500,000, with interest at a rate or rates not to exceed the maximum interest rate permitted by
law, to finance the Facilities and the Incidental Expenses described in Resolution No. 2025-087 of the City Council of the City of Lincoln?
PROPOSITION B: Sha ll a special tax with a rate and
method of apportionment as provided in Resolution No.
2025-087 of the City Council of the City of Lincoln be
levied to pay for the Facilities, Incidental Expenses and other purposes described in Resolution No. 2025-087,
including the payment of the principal of and interest on bonds issued to finance the Facilities and Incidental
Expenses?
YES______
NO_______
YES______
NO_______
PROPOSITION C: For each year commencing with
Fiscal Year 2025 -26, shall the appropriations limit, as defined by subdivision (h) of Section 8 of Article XIII B of the California Constitution, for the District be an amount equal to $10,000,000?
YES______
NO_______
303
1 4931-5015-9700/024161-0011
WAIVER OF CERTAIN ELECTION PROCEDURES
WITH RESPECT TO LANDOWNER ELECTION FOR
CITY OF LINCOLN COMMUNITY FACILITIES DISTRICT NO. 2025-1 (JOINER RANCH EAST)
The undersigned, Bonnie Chiu, acting on behalf of D.R. Horton CA2, Inc., a California corporation (the “Owner”), hereby certifies to the City of Lincoln (the “City”), with respect to the proposed formation of City of Lincoln Community Facilities District No. 2025 -1 (Joiner Ranch East) (the “District”), as follows:
1. The undersigned has been duly authorized by the Owner and possesses all authority necessary to execute this Waiver on behalf of the Owner in connection with the election to be called by the City Council of the City with res pect to the District. The Owner hereby appoints Bonnie Chiu to act as its authorized representative to vote in the election referred to herein and certifies that his true and exact signature is set forth below:
Signature of Bonnie Chiu: __________________________________
2. The Owner is the present owner of 2.93 acres of land located within the proposed boundaries of the District. To the actual knowledge of the undersigned, there are no registered voters residing within the territory owned by the Owner a nd have been none during the 90-day period preceding August 12, 2025.
3. The Owner has received notice of the August 12, 2025 public hearing to be held by the City Council of the City regarding the levy of a special tax in the District and the incurring of bonded indebtedness by the District. The Owner agrees that it received adequate notice of the August 12 , 2025 hearing and consents to the holding of the public hearing on August 12, 2025.
4. The Owner has received from the City and the City has made avai lable to the Owner necessary and relevant information regarding the proposed formation of the District and the imposition of the special tax and the issuance of bonded indebtedness, as set forth in Resolution Nos. 2025-087 and 2025-088 adopted by the City Council on June 24, 2025 (together, the “Resolutions”) to finance the facilities as set forth in the Resolutions.
5. The undersigned understands that if the District is formed on or after August 12, 2025, an election will be held by the District on the propositions set forth in the sample ballot attached hereto as Exhibit “A” less than 90 days after the close of the August 12, 2025 public hearing as in accordance with Section 53326 of the Government Code, without the preparation of an impartial analysis, ar guments or rebuttals concerning the election as provided for by Elections Code Sections 9160 to 9167, inclusive, and 9190 and without preparation of a tax rate statement as provided in Section 9401 of the Elections Code and without further notice of such election as required pursuant to the Elections Code or the Government Code. Having been fully advised with respect to the election, in accordance with the authority contained in Government Code Sections 53326 and 53327, the Owner waives compliance with the foregoing provisions of the Elections Code and Government Code, with any time limits or other procedural requirements pertaining to the conduct of the election which are not being complied with and consents to having the election on any date on or after t he close of the August 12, 2025 public hearing and consents to the closing of the election as soon as all ballots are received by the City Clerk or Deputy City Clerk.
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6. The undersigned hereby represents that compliance with the procedural requirements for conducting the election, including the receipt of any ballot arguments and impartial analysis and the time limitations which apply in connection with scheduling, mailing and publishing notices for such an election, are unnecessary in light of the fact tha t the undersigned has received sufficient information regarding the imposition of the special tax and the issuance of bonded indebtedness as set forth in the Resolutions to allow it to properly complete the attached ballot. The Owner further waives its ri ght to make any protest or complaint or undertake any legal action challenging the validity of the election, the validity of any bonded indebtedness issued by the District as approved at the election, or the validity of the authorization of the special tax to finance facilities for the benefit of the District or to repay bonded indebtedness issued by the District in accordance with the rate and method of apportionment of special taxes provided in Resolution No. 2025-087 of the City Council of the City.
Dated: August __, 2025
D.R. HORTON CA2, INC., a California
corporation
By: ___________________________
Bonnie Chiu
Vice President
305
A-1
4931-5015-9700/024161-0011
EXHIBIT A
SAMPLE
OFFICIAL BALLOT
CITY OF LINCOLN
COMMUNITY FACILITIES DISTRICT NO. 2025-1
(JOINER RANCH EAST)
SPECIAL TAX AND SPECIAL BOND ELECTION
August 12, 2025
You are entitled to cast __ votes.
To vote, stamp a cross (+) in the voting square after the word “YES” or after the word “NO”. All marks otherwise made are forbidden. All distinguishing marks are forbidden and make the ballot void.
If you wrongly mark, tear, or deface this ballot, return it to the City Clerk and obtain another.
PROPOSITION A: Shall City of Lincoln Community
Facilities District No. 2025 -1 (Joiner Ranch East) (the “District”) incur an indebtedness and issue bonds in one or more series in the maximum aggregate principal
amount of $ 23,500,000, with interest at a rate or rates not to exceed the maximum interest rate permitted by
law, to finance the Facilities and the Incidental Expenses described in Resolution No. 2025-087 of the City Council of the City of Lincoln?
PROPOSITION B: Sh all a special tax with a rate and
method of apportionment as provided in Resolution No.
2025-087 of the City Council of the City of Lincoln be
levied to pay for the Facilities, Incidental Expenses and other purposes described in Resolution No. 2025-087,
including the payment of the principal of and interest on bonds issued to finance the Facilities and Incidental
Expenses?
YES______
NO_______
YES______
NO_______
PROPOSITION C: For each year commencing with
Fiscal Year 2025 -26, shall the appropriations limit, as defined by subdivision (h) of Section 8 of Article XIII B of the California Constitution, for the District be an amount equal to $10,000,000?
YES______
NO_______
306
307
308
309
310
Stradling Yocca Carlson & Rauth
Draft August 1, 2025
4921-8727-0484v3/024161-0011
CITY OF LINCOLN
COMMUNITY FACILITIES DISTRICT NO. 2025-1
(JOINER RANCH EAST)
ACQUISITION, CONSTRUCTION AND FUNDING AGREEMENT
THIS ACQUISITION, CONSTRUCTION AND FUNDING AGREEMENT (the “Agreement”) is made and entered into by and between CITY OF LINCOLN (the “City”), acting for and on behalf of itself and CITY OF LINCOLN COMMUNITY FACILITIES DISTRICT NO. 2025- 1 (JOINER RANCH EAST) (the “Community Facilities District” or “CFD”) and JEN CALIFORNIA 24 LLC, a California limited liability company (the “Developer”), each individually a “Party” and collectively the “Parties.”
WHEREAS, Developer has requested that the City consider the for mation of the CFD pursuant to the provisions of the Mello -Roos Community Facilities Act of 1982, as amended (the “Act”), and undertake proceedings for the authorization of special taxes and issuance of bonded indebtedness for the payment of the constructio n and/or acquisition of certain improvements to be owned, operated or maintained by the City, the County of Placer (the “County”) and the South Placer Regional Transportation Authority (the “SPRTA”), and incidental expenses in accordance with the Act; and
WHEREAS, in order to proceed in a timely way with development of the property within the CFD which is described in the attached Exhibit “A” (the “Developer Property”), Developer desires to fund through the Community Facilities District (i) the City’s acqui sition or construction of certain improvements that are to be owned, operated and maintained by the City or are otherwise required to be constructed by the City (“City Improvements”), as more particularly set forth and described in the Description of Cost Estimates attached hereto as Exhibit “B,” (ii) improvements included in the City’s fee programs (the “City Fee Facility Improvements”), as more particularly set forth and described in Exhibit “B,” (iii) only if a joint community facilities agreement is ent ered into, the improvements of the County described in Exhibit “C,” and (iv) only if a joint community facilities agreement is entered into, the improvements of the SPRTA described in Exhibit “C” hereto (the “Miscellaneous Improvements” and together with t he City Improvements and the City Fee Facilities Improvements, collectively the “Improvements”); and
WHEREAS, the City is authorized by the Act to form the CFD and to issue bonds secured by Special Taxes (as defined in Section 2.2) of the CFD (the “Bonds”) to fund the Improvements; and WHEREAS, the City Council has adopted the City’s policies and procedures concerning the use of special district financing programs to finance the Improvements (the “Policy”); and WHEREAS, the purpose of this Agreement is to c onstitute a formal understanding between Developer and the City (pursuant to the requirements of Government Code Section 53313.51 and other provisions of the Act and the Policy) concerning financial and other obligations and responsibilities related to the formation of the Community Facilities District and the Improvements to be financed by the Community Facilities District, when and if formed, to the extent funds are available, and to set forth the conditions upon which (1) the Community Facilities District will reimburse Developer or its designee for the cost of the City Improvements constructed by or on behalf of the Developer and (2) the 311
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Community Facilities District will fund the City Fee Facility Improvements thereby satisfying corresponding City fees; and (3) the Community Facilities District will also fund the Miscellaneous Improvements described in Exhibit “C.”
NOW, THEREFORE, it is mutually agreed between the respective Parties as follows:
1. Feasibility Study. The City has retained, at the Developer’s expense, the necessary consultants to analyze the proposed formation of the CFD to finance the Improvements, including a special tax consultant, bond counsel, and other consultants deemed necessary by the City. The Developer has advanced to the City a sum of money for such costs. From time to time, Developer will make additional advances, within 10 business days following receipt from the City of a request for an additional advance, to cover the costs of the formation proceedings and any change proceedings under the Act requested by the Developer. The City will provide to Developer on request a summary of how the advances have been spent and the unexpended balance remaining. The amounts advanced by the Developer, to the extent determined reasonable and appropriate by the City, expenses incurred by the Developer for legal and other consultant costs in connection with the formation proceedings, any change proceedings and the issuance of Bonds, will be reimbursable to the Developer, without interest, from the proceeds of Bonds. In the event that Bonds are not issued to provide a source of reimbursement to Developer, the City shall not have any liability to Developer to reimburse it for any of the amounts previously advanced by Developer and expended by the City.
Prior to the issuance of the Bonds, the City will request a final advance for any unpaid expenses incurred during preparatory technical, financial and legal work; and following payment of such expenses, the City shall promptly release the balance, if any, of the advance to the Developer. Should the City’s expenses exceed the remaining balance, the City will bill the Developer for the difference, which the Developer agrees to pay within 10 days following receipt of such billing, subject to the conditions of paragraph one of this section.
2. Sale of Bonds.
2.1 City Policies. The City Council has adopted the Policy, setting forth the City’s policies and procedures concerning the use of special district financing programs to finance the Improvements. Pursuant to the Policy, the total annual amount of the special taxes to be collected with respect to a parcel within the CFD and all other taxes and assessments which will be collected with respect to such parcel must not exceed two percent (2%) of the expected assessed value of such parcel within the Community Facilities District upon the completion of all expected structural improvements to such parcel and the sale of such parcel to the initial homeowner. In the event the sum of the special taxes and a ssessments exceed 2% of the expected assessed value of a parcel within the Community Facilities District, the City may require that the Developer or its assignees prepay a portion of the special tax obligation of such parcel prior to or in connection with the issuance of Bonds.
The Parties hereby agree that, unless waived by the City, at the time of issuance of the Bonds, the ratio of the value of all parcels of property for which the Bonds are being issued to the amount of outstanding community facilities district or assessment district bonds attributable to such parcels (the “Value-to-Lien Ratio”) may not be less than four -to-one (4:1). The fair market value of the property within the Community Facilities District for purposes of determining the foregoing ratio will be determined based on the assessed value of the property or the appraised value of the property based on the appraisal made by an appraiser selected by the City with a valuation date within ninety (90) days of the issuance of the Bonds. Subje ct to satisfaction of the Policy and the requirements of this 312
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Agreement, the City shall use reasonable efforts to issue and sell the Bonds in one or more series in an amount sufficient to fund the Improvements in accordance with the schedule for developmen t of the Developer Property. The ultimate decision as to issuance and sizing lies in the sole legislative discretion of the City.
2.2 Major Landowner Initial and Continuing Disclosure. An owner of land which is responsible for twenty percent (20%) or more of the Special Tax (as defined in the Rate and Method of Apportionment of Special Tax for the CFD (“Rate and Method”) and such Special Tax referred to herein as the “Special Tax” or “Special Taxes”)) levy applicable to the land within the CFD which the City has determined, in its sole discretion, to use in the sizing of a series of Bonds (the “Sizing Property”) in the fiscal year in which the Bonds are issued or in the fiscal year following the fiscal year in which the Bonds are issued (a “Major Landowner”) will be required to provide all information regarding the development of its property, including the financing plan for such development, which is necessary to cause the official statement for such Bonds to comply with the requirements of Rule 15c2-12 and Rule 10b -5 of the Securities and Exchange Commission (the “Rule”) and all other applicable federal and state securities laws. Additionally, Developer acknowledges that, if it is a Major Landowner at the time of issuance o f the Bonds, it will be necessary that Developer enter into a continuing disclosure agreement to provide such continuing disclosure pertaining to the development of the land owned by Developer to assist in the marketing of the Bonds.
2.3 Bond Issuance Parameters. The terms and conditions upon which each series of the Bonds shall be issued and sold, the method of sale of the Bonds and the pricing of the Bonds shall be determined solely by the City in its legislative discretion in conformance with the Act, the Policy, and this Agreement. Each series of Bonds shall be issued with a term not to exceed 3 1 years from the date of issuance of the Bonds. The proceeds of the Bonds shall be used in the following priority to (1) fund a reserve fund for the payment of p rincipal and interest with respect to the Bonds in an amount equal to the least of (i) ten percent (10%) of the total bond issue, (ii) maximum annual debt service on Bonds, or (iii) 125% of average annual debt service; (2) fund capitalized interest through the interest payment date on the Bonds for which Special Taxes are not available for payment of debt service on the Bonds or such longer period as requested by the Developer and approved by the City, subject to the Act; (3) reimburse the Developer or its designee pursuant to Section 1 hereof for CFD formation costs advanced by the Developer which have not already been reimbursed to the Developer from collected Special Tax; (4) pay for costs of issuance of the Bonds including, without limitation, underwriter’s discount, bond counsel and disclosure counsel fees, appraisal and special tax consultant fees, printing, fiscal agent fees, and reasonable Developer legal and financial consultant costs; (5) pay for the costs of forming the Community Facilities Distric t; and (6) pay for the actual costs of the Improvements. At the request of the Developer, the City, in consultation with the underwriter of the Bonds, may consider providing for surety or bond insurance in lieu of all or a portion of the reserve fund in o rder to generate additional proceeds to fund Improvements. The Community Facilities District shall maintain records relating to the disbursements of proceeds of the sale of the Bonds. The Indenture or Resolution or Fiscal Agent Agreement (hereinafter “Ind enture”) for the Bonds shall establish an acquisition and construction fund or improvement fund (herein, the “Improvement Fund”) to be held by the fiscal agent (“Fiscal Agent”) into which shall be deposited initially the proceeds of the Bonds net of the am ount of proceeds required to fund items (1) through (5) in the second preceding sentence. The Indenture shall also establish separate accounts of the Improvement Fund designated the “City Improvements Account,” “City Fee Facility Improvements Account,” an d any Miscellaneous Improvement Account(s) for the Miscellaneous Improvements described in Exhibit “C,” into which shall be deposited such portions of the Improvement Fund as 313
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agreed by the Parties and directed by the City in writing at or subsequent to the closing of the sale of the Bonds consistent with the following priorities:
(a) An amount sufficient to fund the reasonable, current estimated cost of the City Fee Facility Improvements anticipated to be funded out of the Bonds being issued shall be deposited in the City Fee Facility Improvements Account; (b) If applicable, an amount to be agreed upon between Developer and the CFD prior to the issuance of Bonds sufficient to fund the reasonable, current estimated costs of the City Improvements shall be deposited, or later transferred, to the City Improvements Account; and (c) If applicable, an amount to be agreed upon between Developer and the CFD prior to the issuance of Bonds sufficient to fund the reasonable, current estimated cost of the Miscellaneous Improvements d escribed in Exhibit “C” hereto, anticipated to be funded out of the Bonds being issued shall be deposited, or later transferred, to the applicable Miscellaneous Improvement Account(s).
Interest earned on moneys deposited in each of the City Fee Facility Improvements Account, the City Improvements Account the Miscellaneous Improvements Account(s) and the PayGo Account (defined below) shall remain in such accounts until such time as all of the Improvements have been funded. Additionally, the Developer may direct the CFD to transfer excess moneys in any of the City Fee Facility Improvements Account, the City Improvements Account or the Miscellaneous Improvements Account(s) to another Account. The Indenture shall provide that amounts remaining in the Improvement Fund after funding all proposed Improvements (such completion of funding to be agreed by the City and the Developer) shall be deposited in the special tax fund or bond service fund and be applied to pay debt service on the Bonds and/or to call Bonds in advance of maturity.
3. Levy of Special Taxes. The City agrees that the District shall levy the Special Taxes on Developed Property (as defined in the Rate and Method) at the maximum rates permitted in the Rate and Method from Fiscal Years 2026-27 through and including 2035-36. Levying Special Taxes on Developed Property at the maximum special tax rates as described above may produce Special Taxes not needed for debt service on Bonds (if any), for administrative expenses, or for replenishment of the reserve fund (if any) for such Bonds. These Special Taxes shall be referred to herein as “PayGo Special Taxes” and such PayGo Special Taxes shall be used to finance Improvements or reimburse Developer for approved costs and expenses in accordance with this Agreement . Prior to the issuance of Bonds, the PayGo Special Taxes shall be held in an account maintained by the City, and such amounts may be used to finance Improvements or reimburse Developer for approved costs and expenses in accordance with this Agreeme nt. After the issuance of Bonds, and upon release of such funds from the Special Tax Fund established under any Bond Indenture (as defined herein) for the Bonds, such PayGo Special Taxes shall be deposited into a separate account of the Improvement Fund or such other fund or account as may be designated in such Bond Indenture. The accounts which hold the PayGo Special Taxes, whether held by the City or the Trustee, shall be referred to herein collectively as the “PayGo Account.”
All PayGo Special Taxes on deposit in the PayGo Account shall be a source for the payment of the Acquisition Price of any Improvements and shall be applied in the same manner as the proceeds of Bonds.
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4. Notice of Special Tax . Developer agrees to comply with the requirements of Section 53341.5 of the Government Code, to the extent applicable to the sale of all or any portion of the Developer Property by Developer.
5. Design Plans and Specifications. The requirements of this Section shall not apply to any City Improvement that was complete (as determined by the City Council) prior to the adoption by the City Council of the resolution forming the CFD, but they shall apply to all other City Improvements for which the Acquisition Price is paid. All plans, specifications and bid docum ents for the City Improvements (“Plans”) constructed or to be constructed by the Developer shall be prepared by the Developer at the Developer’s initial expense, subject to approval by the applicable public agency.
Costs for preparation of the Plans will be eligible for reimbursement, conditioned upon the final approval of the applicable public agency and the availability of funds. Reimbursement of costs for plan revisions will be considered on a case by case basis. All facilities which were not complete prior to the formation of the District, as determined by the City and identified in Exhibit B , shall be bid in accordance with “public works” requirements of Section 7 to be eligible for reimbursement.
6. Construction of Improvements. The requirements of this Section shall not apply to any City Improvement that was complete (as determined by the City Council) prior to the adoption by the City Council of the resolution forming the CFD, but they shall apply to all other City Improvements for which the Acquisition Price is paid.
6.1 Acquisition of City Improvements . Upon the approval of Plans for a City Improvement, the Developer will provide for construction of such City Improvement in accordance with Sections 6.2 and 7 of this Agreement. Sections 6.2 and 7 specify the requirements for construction of the City Improvements that the City believes are necessary to ensure that such City Improvements are constructed as if they had been constructed under the direction and supervision, or under the authority of the City.
6.2 Acquisition. With respect to City Improvements, a qualified engineering firm (the “Field Engineer”) shall be employed by the Developer to provide all field engineering surveys determined to be necessary by the City’s inspection personnel. Field Engineer shall promptly furnish to City a complete set of grade sheets listing all locations, offsets, etc., in accordance with good engineering practices, and attendant data and reports resulting from Field Engineer’s engineering surveys and/or proposed facili ty design changes. City shall have the right, but not the obligation, to review, evaluate and analyze whether such results comply with applicable specifications.
As necessary as determined by City, a full -time soil-testing firm, approved by City, shall be employed by the Developer to conduct soil compaction testing and certification. The Developer shall promptly furnish results of all such compaction testing to the City for its review, evaluation and decision as to compliance with applicable specification s. In the event the compaction is not in compliance with applicable specifications, the Developer shall be fully liable and responsible for the costs of achieving compliance. A final report certifying all required compaction in accordance with the specifications shall be a condition of final approval of facilities.
The costs of all surveying, testing and reports associated with the City Improvements furnished and constructed by the Developer’s contractor(s) shall be eligible to be paid from funds in the City Improvements Account and/or PayGo Account.
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The City shall not be responsible for conducting any environmental, archaeological, biological, or cultural studies or any mitigation requirements that may be requested by appropriate Federal, State, and/or local agencies with respect to the construction of the Improvements. Any such work shall be paid for and conducted by the Developer and reimbursed out of the City Improvements Account and/or PayGo Account.
Should the Developer notify the City that the Developer is unable to complete such City Improvement, and to the extent the Developer has not previously made all required irrevocable offers of dedication, the City shall have the right but not the obligation to require the Developer to make an irrevocable offer of dedication to the City of the land owned by the Developer for the City Improvement identified in the notice and to assume responsibility for the work to be performed thereunder. In the event the Ci ty elects to assume the responsibility for any work on a previously awarded contract as described in the preceding sentence, the following will occur: (i) the Developer will make an irrevocable offer of dedication to the City of the land owned by the Deve loper for such City Improvement identified in the notice; (ii) to the extent permitted by law and the applicable contract, the Developer will assign all of the contracts for the work performed to date on the City Improvement identified in the notice to the City, if requested to do so by the City Manager; the City will use its best efforts to complete the City Improvement within a reasonable time frame; and upon completion of the City Improvement, to the extent there are Special Taxes or proceeds of the Bond s available following payment to the City for the costs of completing such City Improvement, the Developer will be reimbursed for the lesser of the cost or value of the previously unreimbursed satisfactory work performed or paid for by the Developer. The cost of such work will be determined by taking the unreimbursed amounts expended by the Developer under the contract(s) taken over by the City and deducting any incremental cost incurred by the City to complete the work under the contracts in question. Incremental cost shall be costs in excess of the sum of the original contract cost plus change orders approved by the City.
7. Public Works Requirements.
7.1 City Requirements . In order that the City Improvements for which the Acquisition Price is paid may be properly and readily acquired by the City, the Developer shall comply with all of the requirements in this Section 7.1 with respect to any such City Improvements to be acquired with funds in the City Improvements Account and/or PayGo Account and the Developer shall provide such proof to the City as the City may reasonably require and at such intervals and in such form as the City may reasonably require, that the requirements under this Section 7.1 have been satisfied as to all such City Improvements. Notwith standing the foregoing, City Improvements shall only be eligible for financing by the CFD if the City determines that the conditions under Section 53313.5 have been satisfied with respect to such City Improvements. (a) The Developer shall prepare a bid packa ge for review, comment and approval by the City Manager or his or her designee (the “City Representative”) for any City Improvements bid after the effective date of this Agreement. (b) For any City Improvements bid after the effective date of this Agreement, t he Developer shall, after obtaining sealed bids for the construction of the City Improvements in conformance with the procedures and requirements of the City, submit to the City written evidence of such competitive bidding procedure, including evidence of the means by which bids were solicited, a listing of all responsive bids and their amounts, and the name or names of the 316
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contractor or contractors to whom the Developer proposes to award the contracts for such construction, which shall be the lowest responsible bidder.
(c) For any City Improvements bid after the effective date of this Agreement, the following provisions apply: the City Representative shall attend the bid opening for such City Improvements. If unable to attend the bid opening, the City Representative shall approve or disapprove of a contractor or contractors, in writing, within five (5) business days after receipt from the Developer of the name or names of such contractor or contractors recommended by the Developer.
If the City Representative disapproves of any such contractor, the Developer shall select the next lowest responsible bidder from the competitive bids received who is acceptable to the City Representative. (d) The specifications and bid and contract documents shall require all such contractors to pay prevailing wages and to otherwise comply with applicable provisions of the Labor Code and the Government Code relating to public works projects and as required by the procedures and standards of the City with respect to the construction of its public works projects. (e) The Developer shall submit faithful performance and payment bonds in form and substance reasonably acceptable to the City with respect to the City Improvements in accordance with the requirements of the applicable subdivision improvement agreement. (f) The Developer and its contractor and subcontractors shall be required to provide proof of insurance coverage throughout the term of the construction of the City Improvements. The City’s insurance requirements are set out in Section 21 herein. (g) The Developer and all such contractors shall comply with such other requirements relating to the construction of the City Improvements which the City may impose by written notification delivered to the Developer and each such contractor at th e time either prior to the receipt of bids by the Developer for the construction of such City Improvements or, to the extent required as a result of changes in applicable laws, during the progress of construction thereof; provided that any such other requi rements shall only be imposed to the extent the City reasonably determines they are required in order to comply with applicable law. In accordance with Section 7, the Developer shall be deemed the awarding body for all contracts let by Developer for the c onstruction of City Improvements and shall be solely responsible for compliance and enforcement of the provisions of the Labor Code with respect thereto.
(h) A “Change Order” is an order from the Developer to a contractor authorizing a change in the work to be performed and a “Significant Change Order” is an order from the Developer to a contractor authorizing a change in the work to be performed where such Cha nge Order is larger than 10% of the contract amount for such City Improvement. After the effective date of this Agreement, the Developer shall receive comments from the City Representative prior to the Developer’s approval of any Significant Change Order. The City Representative shall comment on or deny the Significant Change Order request within ten (10) calendar days of receipt of all necessary information. The City’s comments to a Significant Change Order shall not be unreasonably delayed, conditioned or withheld. After the effective date of this Agreement, field verification that the work was performed in accordance with a Change Order or a Significant Change Order shall be required, which verification shall be demonstrated by the signature of a City Representative on the Change Order or Significant Change Order. The Developer shall not be entitled to be compensated for costs associated with a Change Order or a Significant Change Order that has not been approved or if the work has not been verified, as applicable, by the City Representative in accordance with this Section 7(h). 317
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Developer shall provide proof to the City, at such intervals and in such form as the City may reasonably require, that the foregoing requirements have been satisfied as to all o f the City Improvements which are funded through Bond proceeds.
8. Inspection; Completion of Construction. The requirements of this Section shall not apply to any City Improvement that was complete (as determined by the City Council) prior to the adoption by the City Council of the resolution forming the CFD, but they shall apply to all other City Improvements for which the Acquisition Price is paid.
The City shall have primary responsibility for inspecting the City Improvements to assure that the work is bei ng accomplished in accordance with the Plans. Such inspection does not include inspection for compliance with safety requirements by the Developer’s contractor(s). The City’s personnel shall be granted access to each construction site at all reasonable t imes for the purpose of accomplishing such inspection. Upon satisfaction of the City’s inspectors, the Developer shall notify the City in writing that a City Improvement has been completed in accordance with the Plans. Any actual costs reasonably incurred by the City for inspection not previously paid by the Developer shall be reimbursed from funds in the City Improvements Account and/or PayGo Account.
Within three (3) business days of receipt of written notification from City inspectors that a City Improvement has been completed in accordance with the Plans, the City Representative shall notify the Developer in writing that such City Improvement has bee n satisfactorily completed. If required pursuant to the applicable subdivision agreement, upon receiving such notification, the Developer shall file a Notice of Completion with the County of Placer Recorders Office, pursuant to the provisions of Sections 8182-8184 of the Civil Code. The Developer shall furnish to the City a duplicate copy of each such Notice of Completion showing thereon the date of filing with the County of Placer (the “County”).
9. Liens. With respect to any City Improvement that was complete (as determined by the City Council) prior to the adoption by the City Council of the resolution forming the CFD, prior to any payment by the CFD to the Developer for such City Improvement, the Developer shall provide to the City such evidence or proof as the City shall require that all persons, firms and corporations supplying work, labor, materials, supplies and equipment for the construction of the City Improvements have been paid, and that no claims of liens have been recorded by or on behalf of any such person, firm or corporation. With respect to all other City Improvements, upon the earlier of (i) receipt of all applicable lien releases, or (ii) expiration of the time for the recording of claim of liens as prescribed by Sections 8412 -8414 of the Civil Code the Developer shall provide to the City such evidence or proof as the City shall require that all persons, firms and corporations supplying work, labor, materials, supplies and equipment for the construction of the City Improvements have been pa id, and that no claims of liens have been recorded by or on behalf of any such person, firm or corporation.
10. Acquisition; Acquisition Price; Source of Funds . The acquisition price of a City Improvement that was complete (as determined by the City Council) prior to the adoption by the City Council of the resolution forming the CFD shall be its Actual Cost (as defined below), as determined by the City Manager or his or her designee, as of the date of acquisition. 318
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The costs eligible to be included in the acqui sition price of a City Improvement (the “Actual Costs”) shall include:
(i) The actual hard costs for the construction of such City Improvement as established by the City -approved construction contracts, Change Orders, and approved Significant Change Orders, including costs of payment, performance and maintenance bonds and insurance costs, pursuant to this Agreement;
(ii) The design and engineering costs of such City Improvement including, without limitation, the costs incurred in preparing the Plans; (iii) The costs of environmental evaluations and public agency permits and approvals attributable to the City Improvement;
(iv) Costs incurred by the Developer for construction management and supervision of such City Improvement, not to exceed five percent (5%) of the actual construction cost; (v) Professional costs associated with the City Improvement such as engineering, inspection, construction staking, materials, testing and similar professional services; and (vi) Costs approved by the City in accordance with the Act of acquiring any real property or interests therein required for the City Improvement including, without limitation, temporary construction easements, temporary by-pass road and maintenance easements.
Provided the Developer has complied with the requirements of this Agreement, the City agrees to pay the acquisition price of a completed City Improvement to the Developer or its designee within thirty (30) days after the Developer’s satisfaction of the conditions to such payment stated herein, but only to the extent there are sufficient funds available in the City Improvements Account and/or PayGo Account. The acquisition price to be paid from Bond proceeds for the acquisition of a City Improvement by the City shall be the total of the Actual Costs of the City Improvement (“Acquisition Price”). The Actual Cost of the City Improvement shall be presumed to be its Acquisition Price.
If the applicable City Improvement is not otherwise subject to an outstanding offer of dedication and the acceptance procedure set forth in a subdivisio n improvement agreement, as a condition to the payment of the Acquisition Price therefor, the ownership of the completed City Improvement shall be transferred to the City by grant deed, bill of sale or such other documentation as such public agency may require free and clear of all taxes, liens, encumbrances, and assessments, but subject to any exceptions determined by the City to not interfere with the actual or intended use of the land or interest therein (including the lien of a community facilities dist rict so long as the subject property is exempt from taxation or is otherwise not taxable by such community facilities district).
Upon the transfer of ownership of City Improvements or any portion thereof to the City, the City shall be responsible for the maintenance of such City Improvements or the portion transferred.
Notwithstanding the foregoing, the Acquisition Price of a City Improvement may be paid prior to transfer of ownership and acceptance of the City Improvement if it is substantially completed at the time of payment. The City Improvement shall be considered “substantially complete” when it has been reasonably determined by the City to be usable, subject to final completion of such items as the final lift or any other items not essential to the primary use or operation of the City Improvement. 319
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For purposes of determining the Acquisition Price to be paid by the Community Facilities District for the acquisition of the City Improvements by the City (other than City Improvements described in the first paragraph of this Section), the value of such City Improvements shall include the construction costs specified in the City -approved contracts (subject to the next sentence), Change Orders, and City -approved Significant Change Orders conforming to Sectio n 6, as hereinbefore specified. City approval is a condition prior to initiation of contract work for City Improvements bid after the effective date of this Agreement.
Upon completion of the construction of a City Improvement, the Developer shall deliver or cause to be delivered to the City a Disbursement Request Form in substantially the form of Exhibit “D,” attached hereto, copies of the contract(s) with the contractor(s) who have constructed the City Improvement and other relevant documentation with regard to the payments made to such contractor(s) and each of them for the construction of the City Improvement, if certified payroll records are not required to be submitted electronically to the Department of Industrial Relations through its payroll portal, documentation evidencing payment of prevailing wages, and shall also provide to the City invoices and purchase orders with respect to all equipment, materials and labor purchased for the construction of the City Improvements. The City shall require the Engineer to complete its determination of the Acquisition Price of the City Improvements as promptly as is reasonably possible.
The payment of the Acquisition Price of any City Improvement that is included in the City’s fee program shall not preclude the grant of City fee credits to the Developer for such City Improvements.
Notwithstanding the preceding provisi ons of this Section, the source of funds for the acquisition of the City Improvements or any portion thereof shall be funds in the City Improvements Account and/or PayGo Account. If for any reason beyond the City’s control the Bonds are not sold, the City shall not be required to pay the Acquisition Price for the City Improvements, except to the extent of funds from the collection of Special Taxes held in the PayGo Account. In such event, the Developer shall complete the design and construction and offer to the City ownership of such portions of the City Improvements as are required to be constructed by the Developer as a condition to recordation of subdivision maps for the Developer Property (but only at such times as required by such condition), but need not construct any portion of the City Improvements which it is not so required to construct. Reimbursement for these facilities would be made from the collection of Special Taxes over time.
In addition to the foregoing, the City shall have the right to w ithhold payment for acquisition of a City Improvement, if:
(a) the Developer or any of its affiliates is delinquent in the payment of any Special Taxes levied by the Community Facilities District on properties then owned by the Developer or any of its affiliates within the CFD, or
(b) the Developer is not then in substantial compliance with a condition or obligation imposed upon the Developer Property by the City, including but not limited to, payment of all applicable fees, dedication of all applicable rights -of-way or other property and construction requirements.
The City shall immediately provide written notice to the Developer of the decision to withhold any such payment and shall specify the reason for such decision. If the payment is withheld as a result 320
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of the delinquency in the payment of Special Taxes, the notice shall identify the delinquent parcels and the amount of such delinquency. If the payment is withheld as a result of substantial non-compliance with a condition or obligation, the notice shall spec ify such condition or obligation and what action will be necessary by the Developer to substantially comply with such condition or obligation. Upon receipt of evidence reasonably satisfactory to the City that the Developer has paid the delinquent Special Taxes or complied with the subject condition or obligation, the City shall forthwith make all payments which have been withheld pursuant to the provisions of this Section.
11. Easements and/or Fee Title Ownership Deeds . Without limiting the Developer’s rights to reimbursement for such grants pursuant to Section 10 above, the Developer shall, at the time the City acquires the City Improvements as provided in Section 10 hereof, grant or cause to be granted to the City, by appropriate instruments prescribed by th e City, all easements across private property and/or fee title ownership deeds which may be reasonably necessary for the proper operation and maintenance of such City Improvements, or any part thereof, but only to the extent located within the Developer Property.
12. Permits. The Developer shall be responsible for obtaining all necessary construction permits from the City and/or the County (as appropriate) covering construction and installation of the City Improvement.
13. Maintenance. Prior to the transfer of ownership of a City Improvement by the Developer to the City, as provided in Section 10 hereof, the Developer shall be responsible for the maintenance thereof and shall require its contractor(s) to repair all facilities damaged by any party other than the City, prior to acceptance by the City and/or make corrections determined to be necessary by the City’s inspection personnel. The City shall not be permitted to place any City Improvement in service prior to acceptance of the same, unless the Developer otherwise consents in writing.
14. Inspection of Records. The City shall have the right to review all books and records of the Developer pertaining to the costs and expenses incurred by the Developer for the design and construction of the City Improvements during normal business hours by making arrangements with the Developer. The Developer shall have the right to review all books and records of the City pertaining to costs and expenses incurred by the City for services of the Engineer by making arrangements wit h the City.
15. Ownership of Improvements. Notwithstanding the fact that some or all of the City Improvements may be constructed in dedicated street rights-of-way or on property which has been or will be dedicated to the City, each City Improvement shall be and remain the property of the Developer until acquired by the City as provided in this Agreement.
16. Materials and Workmanship Warranty. The requirements of this Section shall not apply to any City Improvement that was complete (as determined by the City C ouncil) prior to the adoption by the City Council of the resolution forming the CFD, but they shall apply to all other City Improvements.
Except as otherwise provided in any applicable subdivision improvement agreement, upon the completion of the acquisition of a City Improvement by the City, the performance bond related to such individual City Improvement provided by the Developer pursuant to Section 7.1(e) hereof, shall be reduced by 90%, and the remaining 10% shall serve as a maintenance bond to guarantee that such City Improvement will be free from defects due to faulty workmanship or materials for a period of one year. 321
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17. City Fee Facility Improvements . The Developer may be required pursuant to the conditions of development or the fee ordinance to pay cer tain City fees (the “City Fees”) relating to the City Fee Facility Improvements prior to the availability of proceeds of the Bonds to pay for such City Fee Facility Improvements. In the event such City Fees are paid prior to the availability of Bond proceeds, the amounts paid to the City shall be deemed to be deposits (each a “Deposit”) that are subject to refund by the City to the Developer in accordance with this Agreement. The City shall place each Deposit in a capital facilities account(s). If the Developer has made any Deposits to the City, then following deposit of Bond proceeds in the City Fee Facility Improvements Account or PayGo Special Taxes in the PayGo Account, the City shall return to the Developer, from the capital facilities account in which the Deposits were deposited the Deposits not previously returned, without interest or other earnings thereon. The City shall be so obligated to return such Deposits only to the extent that an equivalent amount of the Deposits to be returned is deposite d in the City Fee Facility Improvements Account from Bond proceeds or Special Tax collections prior to the issuance of Bonds.
Bond proceeds used to finance City Fee Facility Improvements which relate to the City Fees shall be allocated first for return of all Deposits prior to being allocated to the payment of City Fees not previously deposited by the Developer. Any Deposits that have not been returned to the Developer at the time it is determined that there will be no further Bond proceeds available (i.e. the final series of Bonds to finance the Improvements have been issued) or PayGo Special Taxes shall be retained by the City and may be used for the purposes for which the City Fee was required, and the unrefunded Deposits shall constitute full and final payment for such City Fees, without any increase of any kind.
18. Miscellaneous Improvements. Improvements unrelated to the City Improvements and the City Fee Facility Improvements are described in Exhibit “C” attached hereto. The amounts deposited in the applicable Miscellaneous Improvements Account(s), if any, will be disbursed for the acquisition or construction of Miscellaneous Improvements in accordance with the provisions in the applicable joint community facilities agreement. Any amounts in the applicable Miscellaneous Improvements Account(s) shall be disbursed at the written direction of the City upon Developer’s submittal of a payment request which will be based upon applicable entity’s payment request form as provided for in the applicable joint community facilities agreement. Upon receipt of such payment request, the City shall submit a written requisition for payment of the requested amount to the Fiscal Agent for the Bonds, who shall directly pay the amount requested to the applicable entity.
19. Independent Contractor. In performing this Agreement, Developer is an independent contractor and not the agent of the City. The City shall not have any responsibility for payment to any contractor or supplie r of Developer. It is not intended by the Parties that this Agreement create a partnership or joint venture among them and this Agreement shall not otherwise be construed.
20. Indemnification. Developer shall assume the defense of, indemnify and save harmless, the City, its officers, employees and agents, and the Community Facilities District, its officers, employees and agents, from and against all third-party actions, damages, claims, losses or expenses of every type and description to which they may be subject or put, by reason of, or resulting from such person’s or entity’s performance of its obligations under this Agreement and the construction of the City Improvements, the failure of the Developer to provide notice of the Special Tax to be levied by the Community Facilities District pursuant to Section 53341.5 of the Act (but only if the Developer is required by law to provide such notice), or arising out of any alleged misstatements of fact or alleged omission of a material fact made by the Developer, it s officers, directors, employees or agents to the City, the Community Facilities District, the underwriter of the Bonds and its counsel, the appraiser, the special tax consultant, the market absorption consultant or bond counsel regarding the Developer, it s 322
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proposed developments, its property ownership, and any contractual arrangement it may enter into in a disclosure document describing the Community Facilities District and the risks relating to the Bonds.
No provision of this Agreement shall in any way l imit the extent of Developer’s responsibility for payment of damages resulting from the operations of Developer and its contractors; provided, however that Developer shall not be required to assume the defense or indemnify and save harmless any person or entity as to actions, damages, claims, losses or expenses resulting from the breach of this Agreement, the willful misconduct of such person or entity or their officers, agents, consultants or employees or if otherwise prohibited by applicable law.
21. Insurance Requirements. For City Improvements bid after the effective date of this Agreement, neither the Developer nor its contractor shall commence work on such City Improvement under this Agreement prior to obtaining insurance in accordance with the requiremen ts of the applicable subdivision improvements agreement with a company or companies acceptable to the City, nor shall the Developer’s contractor allow any subcontractor to commence work on its subcontract until all insurance required of the subcontractor has been obtained.
The Developer shall during the life of this Agreement, notify the City in writing of any incident giving rise to any potential bodily injury or property damage claim and any resultant settlements, whether in conjunction with this or any o ther project which may affect the limits of the required coverage, as soon as is reasonable and practical.
22. Conflict With Other Agreements . Except as specifically provided herein, nothing contained herein shall be construed as releasing Developer from any condition of development or requirement imposed by any other agreement with City. In the event of a conflicting provision, such other ag reement shall prevail unless such conflicting provision solely benefits the City and is specifically waived or modified in writing by City.
23. Notices. Any notice, payment or instrument required or permitted by this Agreement to be given or delivered to eith er Party shall be deemed to have been received when personally delivered or seventy-two (72) hours following deposit of the same in any United States Post Office in California, registered or certified, postage prepaid. Any notice to the Community Facilities District or the City shall be addressed to City of Lincoln, 600 6th Street, Lincoln, CA 95648, Attention: Assistant City Manager. Any notice to Developer shall be addressed to JEN California 24 LLC, 1478 Stone Point Drive, Suite 100, Roseville, CA 95661, Attention: Clifton Taylor.
Each Party may change its address for delivery of notice by delivering written notice of such change of address to the other Party hereto.
24. No Gift or Waiver.
24.1 No Gift or Waiver for City Improvements . The Developer and the City acknowledge that:
(a) The Developer or its predecessor may have constructed or may be constructing City Improvements before funds that will be used to acquire them are available with the expectation that the Developer will be reimbursed for such City Improvements to the extent and in the manner set forth in this Agreement.
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The City may inspect City Improvements and process Disbursement Request Forms even if funds from the proceeds of Bonds available at the time of such inspection and processing do not exist or are not then sufficient to satisfy the Disbursement Request in full. (b) The Developer may convey City Improvements to the City and the City may accept such City Improvements even if funds from the proceeds of Bonds available at the time of such conveyance and acceptance do not exist or are not then sufficient to satisfy the Disbursement Request in full.
If the City accepts City Improvements before a Disbursement Request is paid in full, the unpaid balance of the Disbursement Request will be paid from time to time, in any number of installments and irrespective of the length of time payment is deferred, as funds from the proceeds of Bonds or PayGo Special Taxes become available.
(c) The Developer’s conveyance or dedication of City Improvements to the City before the availability of funds from the proceeds of Bonds PayGo Special Taxes to acquire the City Improvements is not and shall not be deemed, a gift or a waiver of the Developer’s right to payment of the purchase price of such City Improvements pursuant to this Agreement.
24.2 No Gift or Waiver for City Fees . The Developer and the City acknowledge that:
(a) Prior to the availability of funds from the proceeds of Bonds or PayGo Special Taxes, the Developer or its predecessor may have been or may be required to deposit funds to assure payment of applicable City Fees of the City.
The Developer or its predecessor has deposited or will be depositing such funds with the expectation that the Developer will be reimbursed for these Deposits to the extent and in the manner set forth in this Agreement.
(b) The reimbursement of such Deposits pursuant to Section 17 of this Agreement may occur from time to time, in any number of installments and irrespective of the length of time payment is deferred, as funds become available.
The Developer’s deposit of such funds to the City before the availability of funds to reimburse the Developer is not, and shall not be deemed, a gift or a waiver of the Developer’s right to reimbursement of such Deposits pursuant to this Agreement.
25. General Provisions.
25.1 Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the City and the Developer and their respective heirs, executors, legal representatives, successors, and authorized assigns.
25.2 Amendment. This Agreement may be amended at any time but only in writing signed by each Party hereto.
25.3 Entire Agreement . This Agreement, and the agreements referenced herein, contains the entire understanding and agreement between the Parties with respect to the matters provided for herein a nd supersedes all prior agreements and negotiations between the Parties with 324
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respect to the subject matter of this Agreement. There are no oral or written representations, understanding, undertakings or agreements which are not contained or expressly referred to herein, and any such representations, understandings or agreements are superseded by this Agreement. Failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Parties hereto, or the failure by a Party to exercise its rights upon the default of another Party, shall not constitute a waiver of such Party’s right to insist and demand strict compliance by such other Parties with the terms of this Agreement thereafter. This Agreement shall be bindin g upon, and enforceable by and against the Community Facilities District upon the establishment of the Community Facilities District.
25.4 Exhibits. All exhibits attached hereto are incorporated into this Agreement by reference.
25.5 Severability. If any part of this Agreement is held to be illegal or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible.
25.6 Waiver. Failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Parties hereto, or the failure by a Party to exercise its rights upon the default of another Party, shall not constitute a waiver of such Party’s right to insist and demand strict compliance by such other Parties with the terms of this Agreement thereafter.
25.7 No Third Party Beneficiaries. Except as provided explicitly in this Agreement, no person or entity shall be deemed to be a third party beneficiary hereof, and nothing in this Agreement (either express or implied) is intended to confer upon any person or entity, other than the City, the Community Facilities District, the Developer(and their respective successors and assigns), any rights, remedies, obligations or liabilities under or by reason of this Agreement.
25.8 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute but one instrument.
25.9 Assignment. Developer may assign all or any of its rights pursuant to this Agreement to a purchaser of all or any portion of the Developer Property. Such a purchaser and assignee shall, as a condition to taking an assignment of such rights, enter into an assignment and assumption agreement with the City and Developer, in a form reasonably acceptable to Developer and the City, whereby such rights assigned are specified and such purchaser agrees, except as may be otherwise specifically provided therein, to assume the obligations of Developer pursuant to this Agreement and to be bound thereby . A company that acquires all of the assets of the Developer, including ownership of the Developer itself, shall be deemed a successor and shall not require an assignment or assumption agreement to be bound by, and enjoy the benefits of, this Agreement.
25.10 Governing Law. This Agreement and any dispute arising hereunder shall be governed by and interpreted in accordance with the laws of the State of California.
25.11 Construction of Agreement . This Agreement has been reviewed by legal counsel for both the City and Developer and shall be deemed for all purposes to have been jointly drafted by the City and Developer. No presumption or rule that ambiguities shall be construed against the drafting Party shall apply to the interpretation or enforcement of this Agreement. 325
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25.12 Termination. The provisions of this Agreement related to the acquisition and financing of the Improvements shall terminate and be of no further force or effect if after diligent, commercially reasonable efforts by the City to do so, the first series of Bonds for the CFD are not sold within ten years from the date of this Agreement unless extended by agreement of all the Parties. In such event, any collected PayGo Special Taxes remaining after the reimbursement to the Developer of CFD formation costs sha ll be used to pay for Improvements in accordance with this Agreement and Developer shall receive a credit against City Fees otherwise payable to City in the amount so used to pay for City Fee Facility Improvements.
25.13 Attorneys’ Fees . In the event of any ac tion or proceeding, including an arbitration or a reference pursuant to Section 638 et seq., of the Code of Civil Procedure brought by any Party against any other under this Agreement, the prevailing Party shall be entitled to recover its actual attorneys’ fees and all fees, costs and expenses incurred for prosecution, defense, consultation, or advice in such action or proceeding. In addition to the foregoing, the prevailing Party shall be entitled to its actual attorneys’ fees and all fees, costs and expe nses incurred in any post -judgment proceedings to collect or enforce the judgment. This provision is separate and several and shall survive the merger of this Agreement into any judgment on this Agreement.
25.14 Venue and Forum. Any action at law or in equity arising under this Agreement brought by any Party hereto for the purpose of enforcing, construing or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of Placer, State of California, and the Parties waive all provisions of law providing for the filing removal or change of venue to any other Court.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year written below.
DATED: ______, 2025
CITY OF LINCOLN, a political subdivision of
the State of California
By:
City Manager
ATTEST:
By:
City Clerk
APPROVED AS TO FORM:
CITY ATTORNEY FOR THE CITY OF
LINCOLN
By:
City Attorney
JEN CALIFORNIA 24 LLC, a California
limited liability company
By: __________________________
Name: __________________________
Its: __________________________
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LIST OF EXHIBITS
EXHIBIT A - DESCRIPTION OF DEVELOPER PROPERTY
EXHIBIT B - DESCRIPTION OF COST ESTIMATES
EXHIBIT C - MISCELLANEOUS IMPROVEMENTS
EXHIBIT D - DISBURSEMENT REQUEST FORM
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EXHIBIT A
DESCRIPTION OF DEVELOPER PROPERTY
Real property in the City of Lincoln, County of Placer, State of California, described as follows:
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EXHIBIT B
DESCRIPTION OF COST ESTIMATES OF THE IMPROVEMENTS (1)
I. CITY FEE FACILITY IMPROVEMENTS.
Estimated Cost of the City Fee Facility Improvements
Description Estimated Cost
Traffic Fee $ 925,747
Total City Fees Facility Improvements $ 925,747
II. CITY IMPROVEMENTS.
Estimated Cost of the City Improvements
Description Estimated Cost
Sewer (pipes, manholes & valves) $ 1,946,038
Water (pipes, valves, hydrants & connections) 2,499,935 Storm Drain (pipes, manholes & basin) 1,165,350
Street (grading, curb/gutter, sidewalk, lighting,
paving, signs & monuments 7,759,500
Total City Improvements $13,370,823
(1) Amounts are estimates and subject to change. The Acquisition Price will be funded with Bond proceeds.
(2) Indicates Improvements completed prior to the formation of the District.
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EXHIBIT C
DESCRIPTION OF THE MISCELLANEOUS IMPROVEMENTS
County facilities included in the County’s Capital Facility Fee program , including but not limited to the following:
Description Estimated Cost
Capital Facility Fee $ 458,489
Capital facilities of the South Placer Regional Transportation Authority which are included in the Authority’s fee programs, including but not limited to the following:
Description Estimated Cost
South placer Regional Transportation Authority Fees $ 318,186
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EXHIBIT D
CITY OF LINCOLN
COMMUNITY FACILITIES DISTRICT NO. 2025-1
(JOINER RANCH EAST)
DISBURSEMENT REQUEST FORM
1. City of Lincoln Community Facilities District No. 2025 -1 (Joiner Ranch East) (the “CFD”) is hereby requested to pay from the ________________________ Account, or any applicable account or sub-account thereof, established by the CFD in connection with its 20__ Special Tax Bonds (the “Bonds”) to City of Lincoln (the “City”) as payee, the sum set forth below:
$_____________________ (the Requested Amount”)
2. The Requested Amount represents the payment of City Fees for ___ lot(s) within the boundaries of the CFD (the “Property”).
(Tract No. __________, Lot Nos. ________________).
Or, City Improvements as supported by attached documentation.
3. The Requested Amount is due and payable, and has not formed the basis of any prior request or disbursement.
4. The City, as payee, is hereby directing payment of the Requested Amount be payable to ________________ (the “Developer”), pursuant to the wiring instructions attached hereto.
5. The Requested Amount is authorized and payable pursuant to the terms of the certain Acquisition, Construction and Funding Agreement (the “Agreement”) between the City of Lincoln, acting for and on behalf of itself and the CFD and Developer.
6. Capitalized undefined terms used herein shall have the meaning ascribed to them in the Agreement.
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Dated: DEVELOPER:
________________
By:
Name:
Title:
Dated: CITY OF LINCOLN
By:
Its:
[ATTACH WIRING INSTRUCTIONS]
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EXHIBIT A
CITY OF LINCOLN
COMMUNITY FACILITIES DISTRICT NO. 2025-1
JOINER RANCH EAST
COMMUNITY FACILITIES DISTRICT HEARING REPORT
CONTENTS
Introduction
A. Description of Facilities
B. Cost Estimates
C. Proposed Boundaries of the Community Facilities District
D. Rate and Method of Apportionment of Special Tax
* * * * * * * * * * * *
Exhibit A – List of Authorized Facilities
Exhibit B – Cost Estimates
Exhibit C – Rate and Method of Apportionment of Special Tax
334
CITY OF LINCOLN
COMMUNITY FACILITIES DISTRICT NO. 2025-1
(JOINER RANCH EAST)
INTRODUCTION
The City Council (the “City Council”) of the City of Lincoln (the “City”) did, pursuant to the provisions of the Mello-Roos Community Facilities Act of 1982 (the “Act”), on June 24, 2025, adopt a resolution entitled, “ RESOLUTION OF INTENTION OF THE CITY
COUNCIL OF THE CITY OF LINCOLN TO ESTABLISH CITY OF LINCOLN COMMUNITY FACILITIES DISTRICT NO. 2025-1 (JOINER RANCH EAST), (the “CFD”)
TO AUTHORIZE THE LEVY OF A SPECIAL TAX TO PAY THE COSTS OF ACQUIRING
OR CONSTRUCTING CERTAIN FACILITIES AND TO PAY DEBT SERVICE ON BONDED INDEBTEDNESS” (the “Resolution of Intention”). In the Resolution of Intention, the City Council expressly ordered the preparation of a written Community Facilities District Report (the “Report”) for the proposed CFD.
The Resolution of Intention ordering the Report directed that the Report generally contain the following:
(a) A description of the facilities (the “Facilities”) by type which will be required to adequately meet the needs of the CFD.
(b) An estimate of the fair and reasonable cost of the Facilities including the cost of acquisition of lands, rights -of-way and easements, any physical facilities required in conjunction therewith and incidental expenses in connection therewith, including the costs of the proposed bond financing and other debt and all other related costs as provided in Section 53345.3 of the Act.
For particulars, reference is made to the Resolution of Intention for the CFD, as previously approved and adopted by the City Council.
NOW, THEREFORE, the following data is submitted pursuant to the direction of the City Council:
A. DESCRIPTION OF FACILITIES . A general description of the proposed Facilities is provided in Exhibit “A” attached hereto and hereby made a part hereof.
B. COST ESTIMATES. Cost estimates for the proposed Facilities are set forth in Exhibit “B” attached hereto and hereby made a part hereof.
C. PROPOSED BOUNDARIES OF THE COMMUNITY FACILITIES DISTRICT.
The proposed boundaries of the CFD are those properties and parcels on which special taxes may be levied to pay for the Facilities. The proposed boundaries of the CFD are identified in the map entitled “ Proposed Boundaries of City of Lincoln Community Facilities District No. 2025 -1 (Joiner Ranch East), County of Placer, State of California” which has been recorded in the office of the Placer County Recorder. 335
D. RATE AND METHOD OF APPORTIONMENT OF SPECIAL TAX . All of the property located within the CFD boundaries, unless exempted by law or by the Rate and Method of Apportionment of Special Tax (the “ RMA”), shall be taxed for the purpose of financing the Facilities. The City Council will annually determine the actual amount of the special tax levy based on the method and subject to the Maximum Special Tax rates contained in the RMA. The RMA is provided in Exhibit “C”, attached hereto and hereby made a part hereof.
336
EXHIBIT A
City of Lincoln
Community Facilities District No. 2025-1
(Joiner Ranch East)
LIST OF AUTHORIZED FACILITIES
The proposed types of public facilities and expenses to be financed by the District include:
The construction, purchase, modification, expansion, rehabilitation and/or improvement of (i) sewer, water, storm drain, street and traffic facilities, and other public facilities of the City, including the foregoing public facilities which are included in the City’s fee programs with respect to such facilities and authorized to be financed under the Act (the “City Facilities”); (ii) capital facilities of the County which are included in the County’s Capital Facility Fee program and are authorized to be financed under the Act (the “County Facilities”); and (iii) capital facilities of the South Placer Regional Transportation Authority which are included in the Authority’s fee programs and are authorized to be financed under the Act (the “Transportation Facilities” and, together with the City Facilities and the County Facilities, the “Facilities”), and all appurtenances and appurtenant work in connection with the foregoing Facilities, including the cost of engineering, planning, designing, materials testing, coordination, construction staking, construction management and supervision for such Facilities, and to finance the incidental expenses to be incurred, including:
a. The cost of engineering, planning and designing the Facilities;
b. All costs, including costs of the property owner petitioning to form the District, associated with the creation of the District, the issuance of the bonds, the determination of the amount of special taxes to be levied and costs otherwise incurred in order to carry out the authorized purposes of the District; and
c. Any other expenses incidental to the construction, acquisition, modification, rehabilitation, completion and inspection of the Facilities.
Capitalized terms used and not defined herein shall have the meaning set forth in the Rate and Method of Apportionment of Special Taxes for the District.
337
EXHIBIT B
City of Lincoln
Community Facilities District No. 2025-1
(Joiner Ranch East)
COST ESTIMATES
The following is a summary of the estimated costs of acquisition and construction of the Facilities. In addition, the CFD will finance bond and other debt issuance costs, capitalized interest, a debt service reserve fund, the costs of forming the CFD and other costs associated with the sale of bonds and annual administration of the CFD.
City of Lincoln Estimated Cost
Sewer (Pipes, manholes & valves) $1,946,038
Water (Pipes, valves, hydrants & connections ) $2,499,935 Storm Drain (Pipes, manholes & basin) $1,165,350
Street (Grading, curb/gutter, sidewalk, lighting, paving, signs & monuments) $7,759,500 Traffic Fee $925,747
Subtotal $14,296,570
Other Agencies
County of Placer - Capital Facility Fee $458,489
South Placer Regional Transportation Authority $318,186 Subtotal $776,675
Total $15,073,245
338
EXHIBIT C
City of Lincoln
Community Facilities District No. 2025-1
(Joiner Ranch East)
RATE AND METHOD OF APPORTIONMENT OF SPECIAL TAX
339
Joiner Ranch East CFD 1 June 10, 2025
CITY OF LINCOLN
COMMUNITY FACILITIES DISTRICT NO. 2025-1
(JOINER RANCH EAST)
RATE AND METHOD OF APPORTIONMENT OF SPECIAL TAX
A Special Tax applicable to each Assessor’s Parcel in the City of Lincoln Community Facilities District No. 2025-1 (Joiner Ranch East) shall be levied and collected according to the tax liability determined by the City Council through the applica tion of the appropriat e amount or rate for Taxable Property, as described below. All property in the CFD, unless exempted by law or by the provisions of Section G below, shall be taxed for the purposes, to the extent, and in the manner herein provided, including property subsequently annexed to the CFD unless a separate Rate and Method of Apportionment is adopted for the annexation area.
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 or other parcel map recorded at the County Recorder’s Office.
“Act” means the Mello-Roos Community Facilities Act of 1982, as amended, being Chapter 2.5 (commencing with Section 53311), Part 1, Division 2, of Title 5 of the Government Code of the State of California.
“Administrative Expenses” means any or all of the following: the fees and expenses of any fiscal agent or trustee (including any fees or expenses of its counsel) employed in connection with any Bonds, and the expenses of the City in carrying out its duties with resp ect to the CFD and the Bonds, including, but not limited to, the levy and collection of Special Taxes, the fees and expenses of its counsel, charges levied by the County in connection with the levy and collection of Special Taxes, costs related to property owner inquiries regarding the Special Tax, costs associated with appeals or requests for interpreta tion associated with the Special Tax and this RMA, amounts needed to pay rebate to the federal government with respect to Bonds, costs associated with complying with continuing disclosure requirements for the City and any major property owners or other obligated parties, costs associated with foreclosure and collection of delinquent Special Taxes, and all other costs and e xpenses of the City in any way related to the establishment or administration of the CFD.
“Administrator” shall mean the person or firm designate d by the City to administer the Special Tax according to this RMA.
“Assessor’s Parcel” or “Parcel” means a lot or parcel shown on an Assessor’s Parcel Map with an assigned Assessor’s Parcel number.
“Assessor’s Parcel Map” means an official map of the C ounty Assessor designating Parcels by Assessor’s Parcel number.
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Joiner Ranch East CFD 2 June 10, 2025
“Authorized Facilities” means the public facilities authorized to be financed, in whole or in part, by the CFD.
“Base Special Tax” means, for any Land Use Category, th e applicable Special Tax initially identified in Table 1 of Section C, as may be adjusted pursuant to Section D.
“Bonds” means bonds or other debt (as defined in the Act), whether in one or more series, secured by the Special Tax and issued or assumed by the CFD to fund Authorized Facilities.
“Building Permit” means a permit that allows for vertical construction of a building or buildings, which shall not include a separa te permit issued for construc tion of the foundation thereof.
“Capitalized Interest” means funds in any capitalized interest account available to pay debt service on Bonds.
“CFD” means the City of Lincoln Community Facilities District No. 2025-1 (Joiner Ranch East).
“CFD Formation” means the date on which the Resolution of Formation to form the CFD was adopted by the City Council.
“City” means the City of Lincoln.
“City Council” means the City Council of the City of Lincoln, acting as the legislative body of the CFD.
“County” means the County of Placer.
“Developed Property” means, in any Fiscal Year, all Parc els of Taxable Property that are not Taxable Owners Association Property, Taxable Pub lic Property, or Taxable Welfare Exemption Property for which a Building Permit for new cons truction was issued prior to June 1 of the preceding Fiscal Year.
“Development Class” means, individually, Developed Property, Final Map Property, Undeveloped Property, Taxable Owners Associ ation Property, Taxabl e Welfare Exemption Property, and Taxable Public Property.
“Expected Land Uses” means the number of Residential Units in each Square Footage Category and the acreage of Other Property expected within the CFD at CF D Formation, as identified in Attachments 1 and 2 of this RMA. Pursuant to Section D of th is RMA, the Administrator shall update Attachment 2 each time there is a Land Use Change. Updates to Attachments 1 and 2 shall be maintained internally by the Administrator a nd shall not require recordation of an amended RMA.
“Expected Maximum Special Tax Revenues” means the aggregate Special Tax that can be levied based on application of the Base Special Tax to the Expected Land Uses. The Expected Maximum Special Tax Revenues at CFD Formation are shown in Attachment 2 and may be revised pursuant to Sections D and H below. Updates to Attachments 1 and 2 shall be maintained internally by the Administrator and shall not require recordation of an amended RMA. 341
Joiner Ranch East CFD 3 June 10, 2025
“Final Map” means a final tract map, parcel map, or lo t line adjustment approved by the City pursuant to the Subdivision Map Act (California Government C ode Section 66410 et seq) or a condominium plan recorded pursuan t to California Civil Code 1352 that, in either case, creates individual lots for which Building Permits may be issued without further subdivision.
“Final Map Property” means, in any Fiscal Year, all Sing le Family Lots created within Final Maps that had recorded prior to June 1 of the preceding Fiscal Year and which have not yet become Developed Property.
“First Bond Sale” means issuance of the firs t series of Bonds secured, in whole or in part, by Special Taxes levied and collected from Parcels of Taxable Property in the CFD.
“Fiscal Year” means the period starting July 1 and ending on the following June 30.
“Improvement Fund” means the account (regardless of its name) identified in the Indenture to hold funds that are available for expenditure to acquire or construct Authorized Facilities or to pay eligible impact fees.
“Indenture” means the bond indenture, fiscal agent ag reement, trust agreement, resolution or other instrument pursuant to which Bonds are issued, as modified, amended, and/or supplemented from time to time, and any instrument replacing or supplementing the same.
“Land Use Category” means the categories of land use identified in Table 1 in Section C below.
“Land Use Change” means a proposed or approved change to the Expected Land Uses after CFD Formation.
“Master Developer” means JEN California 24 LLC and its successors and assigns.
“Maximum Special Tax” means the greatest amount of Special Tax that can be levied on a Parcel in any Fiscal Year, as determined in accordance with Sections C and D below.
“Other Property” means any Parcel of Developed Property in the CFD that is not Single Family Property.
“Owners Association” means a homeowners association or property owners association that provides services to, and collects assessments, f ees, dues, or charges from, property within the CFD.
“Owners Association Property” means any property within the boundaries of the CFD that is owned in fee or through easement by the Owners Association, not including any such property that is located directly under a residential structure.
“Proportionately” means, for each Development Class, that the ratio of the actual Special Tax levied in any Fiscal Year to the Maximum Special Tax authorized to be levied in that Fiscal Year is equal for all parcels assigned to the Development Class.
“Public Property” means any property with in the boundaries of the CF D that is owned by the City, County, federal government, State of California, or other public agency. 342
Joiner Ranch East CFD 4 June 10, 2025
“Required Coverage” means the amount by which the Expected Maximum Special Tax Revenues must exceed the Bond debt service and priority Administrative Expenses (if any), as set forth in the Indenture, Certificate of Special Tax Consultant, or other formation or bond document that sets forth the minimum required debt service coverage.
“Residential Unit” means an SFD Unit or an individual residential unit within a duplex, halfplex, triplex, fourplex, townhome, live/work or condominium structure. A second unit (granny flat) that shares a Parcel with an SFD Unit shall not be considered a Residential Unit for purposes of levying the Special Tax.
“RMA” means this Rate and Method of Apportionment of Special Tax.
“SFD Unit” means a residential dwelli ng unit that does not share a common wall with another residential dwelling unit.
“Single Family Lot” means an individual residential lot, identified and numbered on a recorded Final Map, on which a Building Permit has been or is permitted to be issued for construction of a Residential Unit without further subdivision of the lot and for which no further subdivision of the lot is anticipated pursuant to an approved Tentative Map.
“Single Family Property” means, in any Fiscal Year, all Parcels of Taxable Property for which a Building Permit was or is expected to be issued for: (i) construction of an SFD Unit, or (ii) construction of a residential structure consisting of two or more Residential Units that share common walls, have separate Asse ssor’s Parcel numbers assigned to them (except for a duplex unit, which may share an Assessor’s Parcel with another duplex unit), and may be purchased by individual homebuyers (which sha ll still be the case even if th e Residential Units are purchased and subsequently offered for rent by the owne rs of the Residential Units), including such residential structures that meet the statutory definition of a condominium contained in Civil Code Section 4125.
“Special Tax” means a special tax levied in any Fiscal Year to pay the Special Tax Requirement.
“Special Tax Requirement” means the amount necessary in any Fiscal Year to: (i) pay principal and interest on Bonds that are due in the calendar y ear that begins in such Fiscal Year; (ii) pay periodic costs on the Bonds, including but not limit ed to, credit enhancement, liquidity support, and rebate payments on the Bonds ; (iii) replenish rese rve funds created for the Bonds under the Indenture to the extent such replenishment has not been included in the computation of the Special Tax Requirement in a previous Fiscal Year; (iv) cure any delinquencies in the payment of principal or interest on Bonds which have occurred in the prior Fiscal Year; (v) pay Administrative Expenses; and (vi) pay directly fo r Authorized Facilities, so long as such levy under this clause (vi) does not increase the Special Tax levied on Final Map Property or Undeveloped Property. The amounts referred to in clauses (i) and (ii) of the definition of Special Tax Requirement may be reduced in any Fiscal Year by: (a ) interest earnings on or surplus balances in funds and accounts for the Bonds to the extent that such earnings or balances are available to apply against such costs pursuant to the Indenture; (b) in the sole and absolute discretion of the City, proceeds received by the CFD from the collection of penalties associat ed with delinquent Special Taxes; and (c) any other revenues available to pay such costs, each as determined in the sole discretion of the City. 343
Joiner Ranch East CFD 5 June 10, 2025
“Square Footage Category” means one of the categories of Single Family Property, distinguished based on the size of Residential Units within that category, for which a Special Tax amount is set forth in Table 1 in Section C below.
“Taxable Owners Association Property” means, in any Fiscal Year after the First Bond Sale, any Parcel of Owners Association Property that satisfies all three of the following conditions: (i) the Parcel had not been Owners Association Property on the date of the First Bond Sale; (ii) based on reference to Attachments 1 and 2 (as may be updated pursuant to Section D below), the Parcel was not anticipated to be Owners Association Property as determined by the Administrator; and (iii) if the Parcel were to be exempt from the Special Tax because it is Owners Association Property, the Expected Maximum Special Tax Revenues would be reduced to a point at which Required Coverage could not be maintained.
“Taxable Property” means all of the Parcels within the boundaries of the CFD that are not exempt from the Special Tax pursuant to law or Section G below.
“Taxable Public Property ” means in any Fiscal Year after the First Bond Sale, any Parcel of Public Property that satisfies all three of the following conditions: (i) the Parcel had not been Public Property on the date of the First Bond Sale; (ii) based on reference to Attachments 1 and 2 (as may be updated pursuant to Section D below), the Parcel was not anticipated to be Public Property as determined by the Administrator; an d (iii) if the Parcel were to be exempt from the Special Tax because it is Public Property, the Expected Maximum Special Tax Revenues would be reduced to a point at which Required Coverage could not be maintained.
“Taxable Welfare Exemption Property” means in any Fiscal Year after the First Bond Sale, any Parcel of Welfare Exemption Prope rty that satisfies all three of the following conditions: (i) the Parcel had not been Welfare Exemption Property on the date of issuance of the First Bond Sale; (ii) based on reference to Attachments 1 and 2 (as may be updated pursuant to Section D herein), the Parcel was not anticipated to be Welfar e Exemption Property based on the Expected Land Uses, as determined by the Administrator; and (iii) if the Parcel were to be exempt from the Special Tax because it has become Welfare Exemption Property, the Expected Maximum Special Tax Revenues would be reduced to a point at which Required Coverage could not be maintained.
“Tentative Map” means a tentative map or substantial co nformance exhibit for property in the CFD, including any adjustments or amendments thereto.
“Undeveloped Property” means, in any Fiscal Year, all Parcels of Taxable Property that are not Final Map Property, Developed Property, Taxabl e Owners Association Property, Taxable Public Property, or Taxable Welfare Exemption Property as defined herein.
“Welfare Exemption Property” means, in any Fiscal Year, any Parcels in the CFD that have received a welfare exemption under subdivision (g) of Section 214 of the Revenue and Taxation Code and for which such welfare exemption is still in place.
B. DATA FOR ADMINISTRAT ION OF THE SPECIAL TAX
Each Fiscal Year, the Administr ator shall: (i) assign each Parcel of Taxable Property to the appropriate Development Class; (ii) for Developed Property, cate gorize each Parcel as Single 344
Joiner Ranch East CFD 6 June 10, 2025
Family Property or Other Property; (iii) for Single Family Property, determine the Square Footage Category for each Parcel; (iv) for Other Property, determine the Acreage of each Parcel; and (v) determine the Special Tax Requirement for the Fiscal Year. In ad dition, the Administrator shall, on an ongoing basis, monitor the Te ntative Map, Final Maps, and Building Permits to determine if there are any proposed Land Us e Changes that would change the Expected Maximum Special Tax Revenues. If the Expected Maximum Special Tax Revenues will be re vised pursuant to a proposed Land Use Change, the Administrator shall apply the steps set forth in Section D herein.
In any Fiscal Year, if it is determined that: (i) a parcel map for property in the CFD was recorded after January 1 of the prior Fiscal Year (or any other date after which the Assessor will not incorporate the newly-created Parcel s into the then current tax roll), (ii) because of the date the parcel map was recorded, the Assessor does not yet recognize the new Parcels created by the parcel map, and (iii) one or more of th e newly-created Parcels is in a different Development Class than other Parcels created by the s ubdivision, the Administrator shall calculate the Special Taxes for the property affected by recordation of the parcel map by determining the Special Taxes that apply separately to the property within each Development Class, then applying the sum of the individual Special Taxes to the Parcel that was subdivided by recordation of the parcel map.
C. MAXIMUM SPECIAL TAX
1. Developed Property
The Maximum Special Tax for a Parcel of Developed Property is the greater of: (i) the Base Special Tax set forth in Table 1 below, or (ii) the Ma ximum Special Tax determined pursuant to Section D.
Table 1
Base Special Tax
Developed Property
Land Use Category Square Footage Category
Base Special Tax
Fiscal Year 2025-26 *
Single Family Property Greater than 2,000 square feet $4,016 per Residential Unit Single Family Property 1,726 – 2,000 square feet $3,648 per Residential Unit Single Family Property 1,625 – 1,725 square feet $3,544 per Residential Unit Single Family Property Less than 1,625 square feet $3,464 per Residential Unit Other Property N/A $61,120 per Acre
* On July 1, 2026, and on each July 1 thereafter, all figures shown in Table 1 above shall be increased by an amount equal to 2.0% of the amount in effect for the prior Fiscal Year.
Once a Parcel has been taxed in any Fiscal Year as Developed Property, the Parcel shall continue to be taxed as Developed Property regardless of changes to or expiration of the original Building Permit, and regardless of revisions to or destructi on of the structure that was or was expected to be constructed pursuant to the original Building Permit.
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Joiner Ranch East CFD 7 June 10, 2025
2. Final Map Property
The Maximum Special Tax for Final Map Property is $4,016 per Single Family Lot for Fiscal Year 2025-26, which amount shall increase on July 1, 2026 and each July 1 ther eafter by an amount equal to 2.0% of the amount in effect for the prior Fiscal Year.
3. Undeveloped Property, Taxable Owners Associa tion Property, Taxable Public Property, and Taxable Welfare Exemption Property
The Maximum Special Tax for Undeveloped Pr operty, Taxable Owners Association Property, Taxable Public Property, and Taxable Welfare Exemption Property is $61,120 per Acre for Fiscal Year 2025-26, which amount shall increase on Ju ly 1, 2026, and each July 1 thereafter by an amount equal to 2.0% of the amount in effect for the prior Fiscal Year.
D. CHANGES TO THE MAXIMUM SPECIAL TAX
1. Land Use Changes
The Expected Maximum Special Tax Revenues shown in Attachment 2 were originally calculated based on the Expected Land Uses at CFD Formation. Attachme nt 2 is subject to modification upon the occurrence of Land Use Changes, as described below. The Administrator shall review all Land Use Changes and compare the revised land uses to the Expected Land Uses to evaluate the impact on the Expected Maximum Special Tax Revenues.
Prior to the First Bond Sale, if a Land Use Change is proposed or identified that will result in a change in the Expected Maximum Special Tax Revenues, no action will be needed pursuant to this Section D. Upon approval of the Land Use Change, the Administrator shall update Attachment 2 to show the revised Expected Maximum Special Tax Revenues.
After the First Bond Sale, if a Land Use Change is proposed or identified, Steps 1 through 3 below must be applied:
Step 1: By reference to Attachment 2 (which shall be update d by the Administrator each time a Land Use Change has been processed according to this Section D or a partial prepayment has been made), the Admin istrator shall identify the Expected Maximum Special Tax Revenues prior to the Land Use Change.
Step 2: The Administrator shall calculate the Expected Maximum Special Tax Revenues that could be collected from Taxable Property in the CFD after the Land Use Change based on application of the Base Special Taxes from Table 1.
Step 3: If the revenues calculated in Step 2 are (i ) higher than those determined in Step 1 or (ii) less than those calculated in Step 1, but the reduction in Expected Maximum Special Tax Revenues does not reduce debt service coverage on outstanding Bonds below Required Coverage, no further action is needed, and the Administrator shall update Attachment 2 to show the revised Expected Maximum Special Tax Revenues.
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Joiner Ranch East CFD 8 June 10, 2025
If the revenues calculated in Step 2 are less than those calculated in Step 1, and the Administrator determines that the reduc tion in Expected Maximum Special Tax Revenues would reduce debt service c overage on outstanding Bonds below the Required Coverage, one of the following shall occur:
3.a. The landowner requesting the Land Use Change (the “Requesting Landowner”) may make a prepayment in an amount that will ensure that the reduced Expected Maximum Special Tax Revenues are sufficient to provide Required Coverage, as determined pur suant to Section H below. If the Requesting Landowner notifies the Administr ator that he/she would like to remedy the reduction by making a prepayment, such prepayment must be made by the earlier of (i) 30 days from the date of delivery of the prepayment estimate or (ii) the date of issuance of any Building Permits for any Parcel owned by the Requesting Landowner that was Final Map Property or Undeveloped Property at the time the Administrator prepared the prepayment estimate, or
3.b. If a prepayment is not received by th e due date specified above, the Base Special Tax used to dete rmine the Maximum Special Tax for each Parcel of Taxable Property in the area affected by the Land Use Change shall be increased proportionately until the Expected Maximum Special Tax Revenues are sufficient to maintain Required Coverage.
Pursuant to this Section D.1, the Administrator may from time to time update Attachment 2 to reflect revised Expected Maximu m Special Tax Revenues. Such update shall be maintained internally by the Administrator and shall not require recordation of an amended RMA.
If multiple Land Use Changes are proposed simu ltaneously by a single landowner (which may include approval of multiple Final Maps at one time), and the landowner requests that the impact of two or more of the Land Use Changes be considered together, the Administrator shall consider the combined effect of the Land Use Changes to determine if there is a reduction in Expected Maximum Special Tax Revenues. If there is a reduction that would reduce debt service coverage below the Required Coverage, and no prepayment has been received, then the Base Special Tax used to determine the Maximum Special Tax for each Parcel of Taxable Property in the areas affected by the Land Use Changes shall be incr eased proportionately until the aggregate amount that can be levied within such areas is equal to the amount that could have been levied prior to the proposed Land Use Changes. If Land Use Changes are proposed simultaneously by multiple landowners, or if an individual landowner proposing multiple Land Use Changes does not request that such Land Use Changes be considered together, the Administrator shall consider the proposed Land Use Changes individually.
Notwithstanding the foregoing, once a certificate of occupancy has be en issued for a Residential Unit on a Parcel, the Maximum Special Tax for the Parcel cannot be increased because of subsequent Land Use Changes that may occur within the area in which the Parcel is located.
The duties imposed on the Administrator pursuant to this Section D to review Land Use Changes, and to review Final Maps and ma ke certain calculations, are in tended only to facilitate the administration of the Special Tax an d to better assure the sufficie ncy of tax capacity to pay debt service on Bonds. Such duties are not intended to give any devel oper, subdivider, or owner of 347
Joiner Ranch East CFD 9 June 10, 2025
property the right to receive not ice of the potential impact of Land Use Changes on the Special Tax applicable to a Parcel; and each developer, subdivider, or owner of property whose property is the subject of a Land Use Change shall be re sponsible for understanding the impact thereof on the Special Tax applicable to such property.
2. Partial Prepayments
If a Parcel makes a partial prepayment pursuant to Section H below, the Administrator shall recalculate the Maximum Special Tax for the Parc el pursuant to Section H.2. In addition, the Administrator shall update Attachment 2 to refl ect the prepayment and the revised Expected Maximum Special Tax Revenues for the CFD. Af ter the prepayment has been received, the application of Sections D, E, and H of this RMA shall be based on the adjusted Expected Maximum Special Tax Revenues after the prepayment.
3. Conversion of a Parcel of P ublic Property to Private Use
If, in any Fiscal Year, a Parcel of Public Property is converted to private use, such Parcel shall be subject to the levy of the Special Tax. The Maximum Special Tax for each such Parcel shall be determined based on the applicable Base Special Tax for the Parcel, as determined by the Administrator.
4. Reduction in Maximum Special Tax
The Base Special Tax for Residential Units se t forth in Table 1 may be proportionately or disproportionately reduced prior to the First Bond Sale. Such a reduction shall be made without a vote of the qualified CFD electors if the Master Developer requests a reduction in the Base Special Tax. Any such reduction shall occur at least 30 days prior to the First Bond Sale.
E. METHOD OF LEVY OF THE SPECIAL TAX
Each Fiscal Year, the Administrator shall determine the Special Tax Requirement to be collected in that Fiscal Year. A Special Tax shall then be levied according to the following steps:
Step 1: The Special Tax shall be levied Propor tionately on each Parcel of Developed Property up to 100% of the Maximum Special Tax for each Parcel of Developed Property until the amount levied is equal to the Special Tax Requirement prior to applying any Capitalized Interest that is available in the CFD accounts.
Step 2: If additional revenue is needed after Step 1 in order to meet the Special Tax Requirement after Capitalized Interest has been applied to reduce the Special Tax Requirement, the Special Tax shall be le vied Proportionately on each Parcel of Final Map Property up to 100% of the Maximum Special Tax for each Parcel of Final Map Property until the amount levi ed is equal to the Special Tax Requirement.
Step 3: If additional revenue is needed after St ep 2, the Special Tax shall be levied Proportionately on each Parcel of Unde veloped Property up to 100% of the 348
Joiner Ranch East CFD 10 June 10, 2025
Maximum Special Tax for each Parcel of Undeveloped Property until the amount levied is equal to the Special Tax Requirement.
Step 4: If additional revenue is needed after St ep 3, the Special Tax shall be levied Proportionately on each Parcel of Taxa ble Welfare Exemption Property, up to 100% of the Maximum Special Tax for each Parcel of Taxable Welfare Exemption Property for such Fiscal Y ear until the amount levied is equal to the Special Tax Requirement.
Step 5: If additional revenue is needed after St ep 4, the Special Tax shall be levied Proportionately on each Parcel of Taxa ble Owners Association Property, up to 100% of the Maximum Special Tax for each Parcel of Taxable Owners Association Property until the amount levied is equal to the Special Tax Requirement.
Step 6: If additional revenue is needed after St ep 5, the Special Tax shall be levied Proportionately on each Parcel of Taxabl e Public Property, up to 100% of the Maximum Special Tax for each Parcel of Taxable Public Property until the amount levied is equal to the Special Tax Requirement.
F. MANNER OF COLLECTION OF SPECIAL TAX
The Special Tax shall be collected in the same manner and at the same time as ordinary ad valorem property taxes, provided, however, that prepayments are permitted as set forth in Section H below and provided further that the City may directly bill the Special Tax, may collect Special Taxes at a different time or in a diffe rent manner, and may collect delinquent Special Taxes through foreclosure or other available methods.
The Special Tax shall be levied and collected until principal and interest on Bonds have been repaid. However, in no event shall Special Taxes be levied after Fiscal Y ear 2065-66. Under no circumstances may the Special Tax on a Parcel of Developed Property in residential use be increased in any Fiscal Year as a consequence of delinquency or default in payment of the Special Tax levied on another Parcel or Parcels by more than ten percent (10 %) above the amount that would have been levied in that Fiscal Year had there never been any such delinquencies or defaults.
G. EXEMPTIONS
Notwithstanding any other pr ovision of this RMA, no Special Ta x shall be levied in any Fiscal Year on the following:
(1) Public Property, except Taxable Public Property.
(2) Owners Association Property, except Taxable Owners Association Property.
(3) Welfare Exemption Property, except Taxable Welfare Exemption Property.
(4) Parcels that are owned by a public utility for an unmanned facility.
(5) Parcels that are subject to an easement that precludes any other use on the Parcel.
(6) Parcels that have fully prepaid the Speci al Tax obligation assigned to the Parcel pursuant to the formula set forth in Section H below.
349
Joiner Ranch East CFD 11 June 10, 2025
H. PREPAYMENTS
The following definitions apply to this Section H:
“Outstanding Bonds” means all Previously Issued Bonds which remain outstanding, with the following exception: if a Special Tax has b een levied against, or already paid by, an Assessor’s Parcel making a prepayment, and a portion of the Special Tax will be used to pay a portion of the next principal payment on the Bonds that remain outstanding (as determined by the Administrator), that next principal payment shall be subtracted from the total Bond principal that remains outstanding, and the difference shall be used as the amount of Outstanding Bonds for purposes of this prepayment formula.
“Previously Issued Bonds” means all Bonds that have been issued prior to the date of prepayment.
“Public Facilities Requirement” means either $10.6 million in 2025 dollars, which shall increase on January 1, 2026, and on each January 1 thereafter by 2% of the amount in effect in the prior year, or such other number as sha ll be determined by the City as sufficient to fund improvements that are auth orized to be funded by the CFD. The Public Facilities Requirement shown above may be adjusted each time property annexes into the CFD or there is an adjustment to the Expected Maximum Special Tax Revenues due to a Land Use Change or prepayment; at no time shall the Public Facilities Requirement exceed the amount of public improvement costs that can be funded by the Expected Maximum Special Tax Revenues, as determined by the Administrator.
“Remaining Facilities Costs” means the Public Facilities Requirement minus public facility costs funded by Previously Issued B onds, developer equity, and any other source of funding.
1. Full Prepayment
The Special Tax obligation applicable to a Parcel in the CFD may be prepaid and the obligation of the Parcel to pay the Special Tax permanently sa tisfied as described he rein, provided that a prepayment may be made only if there are no delinquent Special Taxes with respect to such Parcel at the time of prepayment. An owner of a Parcel intending to prepay the Special Tax obligation shall provide the City with written notice of intent to prepay. Within 30 days of receipt of such written notice, the City or its designee shall notify such owner of the prepayment amount for such Parcel. Prepayment must be made not less than 60 days prior to any redemption date for Bonds to be redeemed with the proceeds of such prepaid Special Taxes. The Prepayment Amount shall be calculated as follows (capitalized terms as defined below):
Bond Redemption Amount
plus Remaining Facilities Amount
plus Redemption Premium
plus Defeasance Requirement
plus Administrative Fees and Expenses
less Reserve Fund Credit
equals Prepayment Amount
350
Joiner Ranch East CFD 12 June 10, 2025
As of the proposed date of prepayment, the Prepayment Amount shall be determined by application of the following steps:
Step 1. Compute the amount that could be collected from the Parcel prepaying the Special Tax in the Fiscal Year in wh ich prepayment would be received by the City by applying the Base Special Tax to the Expected Land Uses for the Parcel. If this Section H is bei ng applied to calculate a prepayment pursuant to Section D above, comput e the amount by which the proposed Land Use Change would reduce Expected Maximum Special Tax Revenues below the amount needed for Required Coverage, and use this amount for purposes of this Step 1.
Step 2. Divide the Maximum Special Tax com puted pursuant to Step 1 for such Parcel by the total Expected Maximum Special Tax Revenues for all property in the CFD, as shown in A ttachment 2 and as adjusted by the Administrator after prepayments or Land Use Changes.
Step 3. Multiply the quotient computed pursuant to Step 2 by the Outstanding Bonds to compute the amount of Outs tanding Bonds to be retired and prepaid (the “Bond Redemption Amount”).
Step 4. Compute the current Remaining Facilities Costs (if any).
Step 5. Multiply the quotient computed purs uant to Step 2 by the amount determined pursuant to Step 4 to compute the amount of Remaining Facilities Costs to be prepaid (the “Remaining Facilities Amount”).
Step 6. Multiply the Bond Redemption Amount computed pursuant to Step 3 by the applicable redemption premium, if any, on the Outstanding Bonds to be redeemed (the “Redemption Premium”).
Step 7. Compute the amount needed to pay interest on the Bond Redemption Amount starting with the first Bond inte rest payment date after which the prepayment will be received until th e earliest redemption date for the Outstanding Bonds. However, if Bonds are callable at th e first interest payment date after the prepayment ha s been received, Steps 7, 8, and 9 of this prepayment formula will not apply.
Step 8: Compute the amount of interest the C ity reasonably expects to derive from reinvestment of the Bond Redemp tion Amount plus the Redemption Premium from the first Bond interest payment date after which the prepayment has been received until the redemption date for the Outstanding Bonds.
Step 9: Subtract the amount computed pu rsuant to Step 8 from the amount computed pursuant to Step 7 (the “Defeasance Requirement”).
351
Joiner Ranch East CFD 13 June 10, 2025
Step 10. The administrative fees and expenses associated with the prepayment will be determined by the Administrator and include the costs of computing the prepayment, redeeming Bonds, and reco rding any notices to evidence the prepayment and the redemption (the “ Administrative Fees and Expenses”).
Step 11. If and to the extent so provided in the Bond Indenture, a reserve fund credit shall be calculated as a reduction in the applicab le reserve fund for the Outstanding Bonds to be redeemed pursuant to the prepayment (the “Reserve Fund Credit”).
Step 12. The Special Tax prepayment is equal to the sum of the amounts computed pursuant to Steps 3, 5, 6, 9, and 10, less the amount computed pursuant to Step 11 (the “Prepayment Amount”).
Step 13. From the Prepayment Amount, the am ounts computed pursuant to Steps 3, 6, and 9 shall be deposited into the a ppropriate fund as established under the Indenture and be used to retire Outstanding Bonds or make debt service payments. The amount computed pursuant to Step 5 shall be deposited into the Improvement Fund. The amount computed pursuant to Step 10 shall be retained in the account or fund that is establishe d to pay Administrative Expenses.
Once a full prepayment of a Parcel’s Special Tax obligation has been received, a Notice of Cancellation of Special Tax Lien shall be recorded against the Parcel to reflect the discharge of the Parcel’s obligation to pay the Special Tax. However, a Notice of Cancellation of Special Tax Lien shall not be recorded until all Special Taxes levied on the Parcel in the current or prior Fiscal Years have been collected.
2. Partial Prepayment
A partial prepayment may be made in an amount equal to any percentage of full prepayment desired by the party making a part ial prepayment, except that th e full amount of Administrative Fees and Expenses determined in Step 10 shall be included in the partial prepayment. The Maximum Special Tax that can be levied on a Parc el after a partial prepayment is made shall be equal to the portion of the Maximum Special Tax that was not prepaid. Once a partial prepayment has been received, an Amended Notice of Special Tax Lien shall be recorded against the Parcel to reflect the reduced Special Tax lien for the Parcel, and the Administrator shall update Attachment 2 to show the revised Expected Maximum Special Tax Revenues. However, an Amended Notice of Special Tax Lien shall not be recorded until all Special Taxes levied on the Parcel in the current or prior Fiscal Years have been collected.
3. Maintaining Required Coverage
Notwithstanding the foregoing, if at any point in time the Adminis trator determines that the Maximum Special Tax revenue that could be collected from Taxable Property that remains subject to the Special Tax after the proposed prepayment would be less than the Required Coverage on Bonds that will remain outstanding after defeasance or redemption of Bonds from proceeds of the estimated prepayment, the amount of the prepayment shall be increased until the amount of Bonds 352
Joiner Ranch East CFD 14 June 10, 2025
defeased or redeemed is sufficient to reduce rema ining annual debt service to a point at which Required Coverage is maintained.
I. INTERPRETATION OF RMA
Interpretations may be made by Resolution of the City Council to interpret, clarify, and/or revise this RMA to correct any inconsistency, vagueness, or ambiguity as it relates to the Special Tax, method of apportionment, classification of properties, or any definition applicable to the CFD, as long as such correction does not materially affect the levy and collection of Special Taxes. 353
ATTACHMENT 1
City of Lincoln
Community Facilities District No. 2025-1
(Joiner Ranch East)
Expected Lot Layout
354
ATTACHMENT 2
City of Lincoln
Community Facilities District No. 2025-1
(Joiner Ranch East)
Expected Land Uses and Expected Maximum Special Tax Revenues
Land Use
Category
Square Footage
Category
Expected
Residential Units/
Acreage
Base Special Tax
Fiscal Year 2025-26 *
Expected Maximum
Special Tax
Revenues *
Single Family
Property
Greater than
2,000 square feet 40 Residential Units $4,016 per
Residential Unit $160,640
Single Family
Property 1,726 – 2,000 square feet 57 Residential Units $3,648 per Residential Unit $207,936
Single Family
Property 1,625 – 1,725 square feet 57 Residential Units $3,544 per Residential Unit $202,008
Single Family
Property
Less than 1,625
square feet 44 Residential Units $3,464 per
Residential Unit $152,416
Other
Property N/A 0.0 Acres $61,120 per Acre $0
Expected Maximum Special Tax Revenues (FY 2025-26 $)
$723,000
* On July 1, 2026 and each July 1 thereafter, all dollar amounts shown above shall be increased by 2% of the amount in effect in the prior Fiscal Year.
355
SUBJECT:
Consideration of an Employment Agreement Amendment for
the City Manager and City Attorney, Including Compensation and Benefits Adjustments. (Veronica Rodriguez)
SUBMITTED BY:
Veronica Rodriguez
DEPARTMENT:
Human Resources
DATE:
August 12, 2025
Item Number 9.A
STAFF RECOMMENDATION:
Staff recommends that the City Council consider the attached resolution approving amendments to the employment agreements for the City Manager and City Attorney. If approved, the Council should also approve the revised salary schedule for the City Manager.
These amendments reflect the results of their recent performance evaluations and include salary adjustments and modifications to other compensation or fringe benefits. The estimated additional cost for Fiscal Year 2025/26 is $44,840, necessitating a budget augmentation of the same amount.
BACKGROUND/INTRODUCTION:
On April 1, 2025, the City of Lincoln retained the services of Municipal Resource Group LLC (MRG) to facilitate the performance evaluation process for both the City Manager and City Attorney. A closed session meeting was held on April 22, 2025, where the City Council, with the assistance of MRG, discussed the performance of both the City Manager, Sean Scully, and the City Attorney, Kristine Mollenkopf, over the past year. A subsequent closed session took place on July 22, 2025, in which the City Council reviewed and discussed potential adjustments to compensation and fringe benefits. Following these discussions, the City Council now wishes to consider and take action on recommended compensation adjustments in open session, in accordance with applicable law.
FINDINGS/ANALYSIS:
Based on the performance evaluation process overseen by MRG and conducted by the City Council, staff recommends the following amendments to the employment agreements of City Manager Scully and City Attorney Mollenkopf be revised as follows:
1. Merit Increase
• Increase the current salary for the City Manager by 5%, setting the new annual base salary at $281,190
• Increase the current salary for the City Attorney by 5%, setting the new annual base salary at $256,619.78
2. 457 Deferred Compensation Contribution
STAFF REPORT
356
10001500-4000
$5,740.00
71001500-4000
$1,722.00
75001500-4000
$574.00
72001500-4000
$1,148.00
60001500-4000
$1,722.00
73001500-4000
$574.00
10001500-
48095
$5,000.00
71001500-
48095
$1,500.00
75001500-
48095
$500.00
72001500-
48095
$1,000.00
60001500-
48095
$1,500.00
73001500-
48095
$500.00
60002000-
40000
$13,360.00
60002000-
48095
$10,000.00
TOTAL COST
$44,840.00
• Add an annual $10,000 City contribution to the 457 deferred compensation accounts for both the City Manager and City Attorney.
All other terms and conditions in the employment agreements for City Manager Scully (dated December 14, 2021 and amended on October 8, 2024) and City Attorney Mollenkopf (dated January 1, 2018) will remain unchanged.
CONCLUSION
To implement the recommended changes to Mr. Scully’s and Ms. Mollenkopf’s employment agreements dated December 14, 2021, and January 1, 2018, respectively, it is necessary to execute the attached amendments to City Manager Scully’s and City Attorney Mollenkopf’s at- will employment agreements. Therefore, staff recommends that the City Council approve a resolution authorizing the Mayor to execute the attached amendments that implements the revisions agreed upon by the City Council.
Additionally, in compliance with Section 570.5 of the California Code of Regulations (Employees’ Retirement System Regulations), staff recommends that the City Council approve the revised salary schedule for the City Manager to reflect the proposed salary increase.
FISCAL IMPACT:
The cost of the proposed change to City Manager Scully’s and City Attorney Mollenkopf’s compensation for Fiscal Year 25/26 is approximately $44,840, necessitating a budget augmentation for this amount allocated as follows:
357
ATTACHMENTS:
ATTACHMENT A - Resolution CM and CA Salary Contract Amendment.docx ATTACHMENT B-Amendment_Scully.pdf
ATTACHMENT C-Amendment_Mollenkopf.pdf
ATTACHMENT D-Proposed Unrepresented Salary Schedule.pdf 358
RESOLUTION NO. 2025-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LINCOLN APPROVING
AMENDMENT S TO THE AT-WILL EMPLOYMENT AGREEMENTS FOR CITY
MANAGER SEAN SCULLY AND CITY ATTORNEY KRISTINE MOLLENKOPF AND
ADOPTION OF THE REVISED SALARY SCHEDULE FOR THE CITY MANAGER
CLASSIFICATION
WHEREAS, the City of Lincoln entered into an at-will employment agreement with Sean Scully on December 14, 2021, appointing him as the City Manager of the City of Lincoln; and
WHEREAS, the City of Lincoln entered into an at-will employment agreement with Kristine Mollenkopf on January 1, 2018, appointing her as the City Attorney of the City of Lincoln; and
WHEREAS, the City Council has evaluated the salary and terms of the employment agreements for City Manager Sean Scully and City Attorney Kristine Mollenkopf ; and
WHEREAS, The City of Lincoln’s City Council has proposed revisions to City Manager Scully’s and City Attorney Mollenkopf’s at-will employment agreements; and
WHEREAS, Section 570.5 of the California Code of Regulations (Employees’ Retirement System Regulations), requires that a pay schedule be duly approved and adopted by the employer’s governing body in accordance with requirements of applicable public meeting laws; and
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Lincoln authorizes:
1. The approval of an Amendment to the December 14, 2021, At-Will Employment Agreement for City Manager Sean Scully as previously amended on October 8, 2024, and effective through September 24, 2029, or the date of earlier termination in accordance with provisions of the agreement.
2. The approval of an Amendment to the January 1, 2018, At-Will Employment Agreement for City Attorney Kristine Mollenkopf.
3. The adoption of the revised salary schedule for the City Manager.
PASSED AND ADOPTED this 12th day of August 2025.
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
Holly Andreatta, Mayor
ATTEST:
Hope Ithurburn, City Clerk
359
AMENDMENT 2 TO DECEMBER 14, 2021, AT-WILL EMPLOYMENT AGREEMENT: SEAN SCULLY
The employment agreement for City Manager, Sean Scully, is amended as follows:
1. The following section shall be added to Exhibit B of the employment agreement:
Deferred Compensation
Employee will receive an annual $10,000 employer contribution to Employee’s 457(b) deferred compensation plan beginning with the first pay period following the approval of this agreement. The $10,000 employer contribution will be made to the Employee’s 457(b) deferred compensation plan account in equal installments over 26 pay periods.
The amendment listed above does not affect the remainder of the employment agreement. The amended terms will take effect upon execution of this amendment.
________________________ __________________________
Holly Andreatta, Mayor Sean Scully, City Manager
________________________ __________________________
Dated Dated
Approved as to form:
____________________________
Kristine Mollenkopf, City Attorney
360
AMENDMENT TO JANUARY 1, 2018, AT-WILL EMPLOYMENT AGREEMENT: KRISTINE MOLLENKOPF
The employment agreement for City Attorney, Kristine Mollenkopf , is amended as follows:
1. The following section shall be added to Exhibit B of the employment agreement:
Deferred Compensation
Employee will receive an annual $10,000 employer contribution to Employee’s 457(b) deferred compensation plan beginning with the first pay period following the approval of this agreement. The $10,000 employer contribution will be made to the Employee’s 457(b) deferred compensation plan account in equal installments over 26 pay periods.
The amendment listed above does not affect the remainder of the employment agreement. The amended terms will take effect upon execution of this amendment.
________________________ _____________________________
Holly Andreatta, Mayor Kristine Mollenkopf, City Attorney
________________________ __________________________
Dated Dated
Approved as to form:
____________________________________
Kristi McKenney, Junior Deputy City Attorney
361
Adoption Date: TBD
Resolution: 2025-XXX
Unrepresented, Elected Officials and Commissions Bargaining Unit: Unrepresented Effective Date: TBD
Job Classification AdoptedEffective Min RangeMax Range
Assistant City Attorney10/22/2410/22/24 48.06126 132.21154 8,330.62 22,916.67
99,967.43275,000.00
Assistant City Manager12/14/21 12/14/21 48.06126 132.21154 8,330.62 22,916.67
99,967.43275,000.00
Chief Innov & Tech Ofcr12/14/21 12/14/21 48.06126 132.21154 8,330.62 22,916.67
99,967.43275,000.00
City Attorney 12/14/21 12/14/21 48.06126 132.21154
8,330.62 22,916.67
99,967.43275,000.00
City Clerk 12/14/21 12/14/21 48.06126 132.21154
8,330.62 22,916.67
99,967.43275,000.00
City Engineer 12/14/21 12/14/21 48.06126 132.21154
8,330.62 22,916.67
99,967.43275,000.00
City Manager TBD TBD 48.06126 135.18750
8,330.62 23,432.50
99,967.43281,190.00
Community Dev Director12/14/21 12/14/21 48.06126 132.21154 8,330.62 22,916.67
99,967.43275,000.00
Deputy Fire Chief 7/11/23 7/11/23 48.06126 132.21154
8,330.62 22,916.67
99,967.43275,000.00
Economic Development &
Communications
Specialist 9/5/23 9/5/23 48.06126 132.21154
8,330.62 22,916.67
99,967.43275,000.00
Finance Director 12/14/21 12/14/21 48.06126 132.21154
8,330.62 22,916.67
99,967.43275,000.00
Finance Manager 12/14/21 12/14/21 48.06126 132.21154
8,330.62 22,916.67
99,967.43275,000.00
Fire Chief 7/22/25 7/22/25 48.06126 132.21154
8,330.62 22,916.67
99,967.43275,000.00
City of Lincoln Salary Schedule
1 of 3 Timebase: Hourly/Monthly/Annual 362
Adoption Date: TBD
Resolution: 2025-XXX
Unrepresented, Elected Officials and Commissions Bargaining Unit: Unrepresented Effective Date: TBD
City of Lincoln Salary Schedule
Fire Marshal 7/22/25 7/22/25 48.06126 132.21154
8,330.62 22,916.67
99,967.43275,000.00
HR Director 12/14/21 12/14/21 48.06126 132.21154
8,330.62 22,916.67
99,967.43275,000.00
Junior Deputy City
Attorney 10/22/24 10/22/24 48.06126 132.21154
8,330.62 22,916.67
99,967.43275,000.00
Library Svcs Director 12/14/21 12/14/21 48.06126 132.21154 8,330.62 22,916.67
99,967.43275,000.00
Police Captain 7/11/23 7/11/23 48.06126 132.21154
8,330.62 22,916.67
99,967.43275,000.00
Public Safety Chief 12/14/21 12/14/21 48.06126 132.21154 8,330.62 22,916.67
99,967.43275,000.00
Public Works Director12/14/21 12/14/21 48.06126 132.21154 8,330.62 22,916.67
99,967.43275,000.00
PW Director/City Eng12/14/21 12/14/21 48.06126 132.21154 8,330.62 22,916.67
99,967.43275,000.00
Senior Deputy City
Attorney 10/22/24 10/22/24 48.06126 132.21154
8,330.62 22,916.67
99,967.43275,000.00
2 of 3 Timebase: Hourly/Monthly/Annual 363
Adoption Date: TBD
Resolution: 2025-XXX
Unrepresented, Elected Officials and Commissions Bargaining Unit: Unrepresented Effective Date: TBD
City of Lincoln Salary Schedule
Job Classification AdoptedEffective Step 1 Step 2 Step 3 Step 4 Step 5 Step 6 Step 7 Chief of Police 12/14/2112/14/21 59.19050 62.15000 65.25750 68.52038 71.94638 75.54375 79.32100 10,259.69 10,772.67 11,311.30 11,876.87 12,470.71 13,094.25 13,748.97 123,116.24129,272.00135,735.60142,522.38149,648.46157,131.00164,987.68 HR Manager 12/14/21 12/14/21 43.77800 45.96688 48.26525 50.67850 53.21250 55.87313 58.66675 7,588.19 7,967.59 8,365.98 8,784.27 9,223.50 9,684.68 10,168.90 91,058.24 95,611.10100,391.72105,411.28110,682.00116,216.10122,026.84 Library Manager 12/14/21 12/14/21 31.44000 33.01200 34.66263 36.39575 38.21550 40.12625 42.13263 5,449.60 5,722.08 6,008.19 6,308.60 6,624.02 6,955.22 7,302.99 65,395.20 68,664.96 72,098.26 75,703.16 79,488.24 83,462.60 87,635.86 Elected Officials and
Commissions Monthly Stipend
Councilmember 655.00
Mayor 705.00
City Treasurer 655.00
Planning Commission 100.00
3 of 3 Timebase: Hourly/Monthly/Annual 364