FUNDING, CONSTRUCTION AND ACQUISITION AGREEMENT
Dated as of September 1, 2023
by and between
CITY OF MANTECA
and
JEN CALIFORNIA 23, LLC
RELATIVE TO THE
CITY OF MANTECA
COMMUNITY FACILITIES DISTRICT NO. 2023-1
(VILLA TICINO WEST FACILITIES)
This FUNDING, CONSTRUCTION AND ACQUISITION AGREEMENT (this “Agreement”) is entered into as of September 1, 2023, by and between the CITY OF MANTECA, a municipal corporation and general law city existing under the laws of the State of California (the “City”), and JEN CALIFORNIA 23, LLC, a California limited liability company (“Developer”).
RECITALS
WHEREAS, the City Council of the City (the “City Council”) has conducted proceedings under and pursuant to the Mello-Roos Community Facilities Act of 1982, as amended (the “Act”), to (i) establish the City of Manteca Community Facilities District No. 2023-1 (Villa Ticino West Facilities) (the “District”), (ii) designate within the District, “Improvement Area No. 1 of the City of Manteca Community Facilities District No. 2023-1 (Villa Ticino West Facilities)” (“Improvement Area No. 1”), and (iii) establish a “City of Manteca Community Facilities District No. 2023-1 (Villa Ticino West Facilities) (Future Annexation Area)” for the District (the “Future Annexation Area”); WHEREAS, land in the District and land anticipated to annex from the Future Annexation Area into the District in the future relates to the proposed development within the City commonly known as “Villa Ticino West” being undertaken by the Developer (the “Property”), which is planned to develop into 766 residential units on 198 acres, as well as related public parks and other complementary uses; WHEREAS, the Property is being developed pursuant to that certain Development Agreement related to the Property, dated as of June 6, 2005, as amended pursuant to the First Amendment thereto, dated as of April 2, 2008, the Second Amendment thereto, dated as of October 2, 2008, the Third Amendment thereto, dated as of December 1, 2015, the Fourth Amendment thereto, dated as of May 2, 2018, and the Fifth Amendment thereto, dated as of May 12, 2021 (as so amended, the “Development Agreement”); WHEREAS, the City and the Developer are parties to one or more of the following: (i) the Development Agreement; (ii) improvement agreements between the Developer and the City concerning the acquisition and construction of public facilities related to the development of the Property; and (iii) conditions to the City’s approval of development entitlements for the Property that concern the acquisition or construction of a public facility related to the development thereof (collectively, as applicable, the “Development Documents”); WHEREAS, Section 53313.5 of the Act provides that a community facilities district may finance the construction and acquisition of facilities constructed after the adoption of the resolution of formation establishing the community facilities district if the facilities have been constructed as if they had been constructed under the direction and supervision, or under the authority of, the local agency whose governing body is conducting proceedings for the establishment of the district; and WHEREAS, the purpose of this Agreement is to provide for the acquisition of certain public facilities serving development of the Project to be financed in whole or in part by the District, using proceeds from available special taxes and issuance and sale of bonds for the District to finance the design and acquisition of such public facilities and expenses incidental thereto and to provide the terms of any reimbursement to Developer and is not intended to supersede or alter in any other way the rights and obligations of the parties under the Development Agreement and other Development Documents.
AGREEMENTS
NOW, THEREFORE, in consideration of the preceding recitals and the mutual covenants hereinafter contained, the parties agree as follows:
Section 1. Establishment of District and Improvement Area No. 1. The City has initiated and concluded proceedings pursuant to the Act for the establishment of the District, including designation of Improvement Area No. 1 therein, and identification of the Future Annexation Area related thereto. Such proceedings included elections pursuant to Sections 53326 and 53327 of the California Government Code on (i) the question of the issuance of bonds for Improvement Area No. 1 of the District to finance the design, construction or acquisition of the Authorized Facilities (defined below), (ii) the issue of the annual levy of special taxes on all taxable property within the Improvement Area No. 1 of the District pursuant to the terms of the Rate and Method of Apportionment of Special Taxes for Improvement Area No. 1 (for Improvement Area No. 1 and each future improvement area, an “RMA”), for the payment of principal and interest on the bonds of the District and the annual administrative expenses of the City and the District in levying and collecting such special taxes, paying the principal and interest on such bonds and providing for the registration, exchange and transfer of such bonds, including the fees of fiscal agents and paying agents, and any necessary replenishment for the reserve fund for such bonds, accumulation of funds for future bond payments, or the acquisition of authorized facilities and payment of authorized costs from the proceeds of such special taxes, and (iii) the question of the establishment of an appropriations limit for Improvement Area No. 1. This Agreement applies to Improvement Area No. 1 and each future improvement area (each, an “Improvement Area”) designated out of the Future Annexation Area.
Section 2. Authorization and Sale of Bonds; Authorized Facilities. The City intends to proceed with the sale of bonds in one or more series in each Improvement Area (collectively, the “Bonds”) for the District for the purpose of raising money eligible for use as payment for Authorized Facilities in accordance with this Agreement and City policies, in the maximum aggregate principal amount of not to exceed $24,000,000 (excluding Bonds described in Section 53364.2(e) of the Act) (the “Authorization”), initially allocated as follows: (i) for Improvement Area No. 1, $6,500,000 and (ii) for land not currently in Improvement Area No. 1 and within the Future Annexation Area, $17,500,000. The timing of the issuance and sale of each series of Bonds, the aggregate principal amount thereof, and the terms and conditions upon which they shall be sold shall be determined by the City.
The authorized facilities (the “Authorized Facilities”) eligible for reimbursement from Bond proceeds are described in the resolution of formation for the District, and summarized on Exhibit A. The Authorized Facilities represent all of the facilities that are eligible for acquisition; however, the Developer may not construct all of the Authorized Facilities (e.g., some facilities may be constructed by City, other public agencies or utilities, or other developers that require the construction of such facilities, or in concert with other developers). “Available Bond Proceeds” shall be the proceeds of the sale of the Bonds net of costs of issuance, less the Formation Fees and Costs (defined herein), capitalized interest, and any administration costs to be deducted therefrom, plus any interest earnings on such proceeds. “Available Proceeds” shall mean Available Bond Proceeds, plus Available Special Tax Revenues (defined in Section 8 below).
Section 3. Tax Requirements. For any Bonds that are issued as federally tax-exempt, the City shall take all actions which, in the opinion of City’s bond counsel, are necessary in order to avoid classification of the Bonds as “arbitrage bonds” or the loss of tax exemption for the Bonds for any other reason.
Section 4. Amounts to Be Included in Bonds. The principal amount of each series of Bonds shall include an amount needed (i) to fund a reserve fund for the payment of principal and interest of such Bonds as is determined by the City to be necessary and appropriate, capitalized interest on such Bonds for such period as the City and the Developer shall determine is appropriate (if and to the extent not provided by the levy and collection of special taxes in advance of such Bond sale), (ii) the amount of the discount of the underwriter who purchases such Bonds, and (iii) other expenses incurred by the City in connection with the issuance and sale of such Bonds, including bond and disclosure counsel fees, legal fees, fees of the bank which will act as transfer agent, registrar and paying or fiscal agent for such Bonds, other fees and costs normally incidental to the sale of Bonds, and such other fees and costs enumerated in Section 53345.3 of the Act as the City determines are necessary and appropriate. The City may also include within the principal amount of a series of Bonds an amount determined by the City to reimburse Developer, or any entities related thereto, for costs and expenses incurred by them which are related to the establishment of the District; provided, that the City shall determine the amount to be so reimbursed on the basis of detailed itemizations of costs provided by Developer. All of the foregoing fees, costs, and expenses described in this paragraph are hereinafter “Formation Fees and Costs.” In no event shall Developer be reimbursed from Bond proceeds for (i) in-house administrative overhead (except that Developer shall be entitled to payment equal to four percent (4%) of actual construction costs as and for project and construction management services), (ii) interest expense incurred by Developer on moneys advanced during the proceedings for formation of the District and issuance of Bonds, and during construction of the Authorized Facilities, and (iii) any other costs and expenses incurred by Developer which are not authorized by the Act.
If Developer does not design and construct the Authorized Facilities within the timelines set forth in the Development Agreement and the Development Documents, the City may, but has no obligation to, utilize Available Proceeds to complete such design and/or construction.
The sources of funds to be utilized by the City for the design or construction of any such Authorized Facilities may include (i) the proceeds of the sale of the Bonds, (ii) interest earnings on the reserve fund or improvement fund for Bonds, to the extent such earnings are determined by the City to be available for construction of the Authorized Facilities, (iii) the Developer’s subdivision bond or bonds to the extent applicable, (iv) any other performance security that may have been provided by Developer, and (v) the Developer’s and/or contractors’ performance bonds. To the extent that such sources may be insufficient to pay for the design or construction of an Authorized Facility, the City may either construct only those Authorized Facilities which can be constructed with such sources of funds which are available therefor, or the City may proceed to complete the Authorized Facilities and charge the Developer, the Developer’s bond or any contractor’s bond for the costs thereof. Nothing contained herein and no take-over of design or construction of Authorized Facilities by the City shall relieve a Developer of any of its responsibilities under any Development Document. Following completion of the Authorized Facilities taken over by the City, the City shall use the above-referenced sources to reimburse the Developer for any costs incurred by the Developer in the construction of the Authorized Facilities that were not previously reimbursed to the Developer.
Section 5. Design of Authorized Facilities.
(a) Conformance with Standards. Authorized Facilities to be acquired by the City shall be designed in conformance with all applicable City standards and requirements, except where deviation from such standard or requirement is required by the City or approved by the City in writing. (b) Reimbursement for Design. Developer may be reimbursed out of Available Proceeds for such expenses incurred in designing the Authorized Facilities, including all applicable plan checking and other fees paid, subject to the City’s reasonable determination of the amount to be so reimbursed pursuant to the terms hereof and as confirmed to the Developer prior to construction, and subject to the limitation that reimbursement in all cases is to be made from Available Proceeds only. Reimbursement for design and for plan check services related to approval of the design for each Authorized Facility shall be made in one or more lump sum payments as and when the design for each Authorized Facility is approved, but only after City has received and approved all invoices for such services associated with the design of such Authorized Facility and subject to any limits set forth in the Development Agreement or Development Documents.
Section 6. Construction for Acquisition. The City shall only be required to acquire from Developer, and otherwise pay Developer for, the Authorized Facilities constructed in accordance with the approved City plans and specifications. Developer shall comply with all of the following requirements to ensure that the Authorized Facilities are constructed as if they had been constructed under the direction and supervision, or under the authority of the City:
(a) Approval by City. The plans and specifications and form of contract documents shall be approved by the City Engineer and City Attorney for conformance with the City municipal code and applicable City policy. (b) Prevailing Wage Requirement. Developer shall require, and the specifications and contract documents shall require, all contractors to pay prevailing wages in accordance with the California Labor Code. (c) Bidding Requirements. The following bidding requirements of the City shall apply to contracts for the construction of Authorized Facilities:
(i) The bidding and contract award procedures shall be approved by the City Engineer for conformance with applicable City codes and policy. Based on qualifications submitted by the contractors, the Developer, in consultation with the City Engineer, shall select a list of qualified bidders, which shall be general contractors with an “A” license. (ii) The specifications and bid and contract documents shall require all contractors and subcontractors to pay prevailing wages in accordance with the California Labor Code. (iii) All contractors and subcontractors shall be required to provide proof of insurance coverage throughout the term of the construction of the Authorized Facilities. (iv) No contractor or subcontractor may be listed on a bid proposal for the Authorized Facilities unless registered with the Department of Industrial Relations pursuant to Labor Code Section 1725.5. No contractor or subcontractor may work on the Authorized Facilities unless registered with the Department of Industrial Relations pursuant to Labor Code Section 1725.5. Developer shall require its contractors comply with the registration requirements of the Labor Code. (v) Developer shall notify the Department of Industrial Relations within five (5) days of the award of the initial prime contract for the Authorized Facilities. (vi) Developer shall require its contractors to comply with all federal, state and local laws, ordinances and regulations applicable to the construction of the Authorized Facilities. (c) Proof of Insurance/Completion of Construction/Improvement Security. Insurance shall be maintained in accordance with Section 6.04(d) of the Development Agreement and/or Section 8 of the applicable improvement agreements. Inspections and acceptance shall be undertaken in accordance with Section 2 of the applicable improvement agreements. Improvement security shall be provided as described in Section 5 of the applicable improvement agreements. (d) Liens. Developer shall provide to the City (with its Request for Payment, defined in paragraph 7(a) below) reasonable evidence or proof that all persons, firms and corporations supplying work, labor, materials, supplies and equipment to the construction of the Authorized Facilities, or portion thereof, constructed by Developer for acquisition by the City (collectively, “Potential Lien Claimants”) have been paid; provided, however, while Developer shall endeavor to obtain signed lien releases from all Potential Lien Claimants, Developer shall not be required to provide signed lien releases form all Potential Lien Claimants to satisfy its obligations under this Section 8. During construction of the Authorized Facilities, Developer require its contractors to provide, conditional lien releases with respect to pending Requests for Payment (defined below), and unconditional lien releases for previously paid Requests for Payment. (e) Indemnification. Developer shall defend, indemnify and hold harmless the City and its respective officers, agents, volunteers, and employees from any and all liability, cost and expense in connection with the construction and acquisition of the Authority Facilities, as and to the extent set forth in the Development Agreement and other Development Documents.
Section 7. Payment of Acquisition Price.
(a) Request for Payment of Acquisition Price. On or about the 30th day of each month following commencement of construction of any of the Authorized Facilities, or such other dates as are mutually agreeable by City and Developer, Developer may submit to City a request for payment (the “Request for Payment”) of the Acquisition Price (defined below) for the portion of each Authorized Facility constructed during the previous month. The Request for Payment shall be made on the form attached hereto as Exhibit B and include such necessary information (including invoices, receipts, worksheets and other evidence) in sufficient detail to allow the City to verify the Acquisition Price of such portions of the Authorized Facilities. (b) Determination of Acquisition Price/City Inspection. Upon submittal of a complete (as reasonably determined by City) Request for Payment, the City (and when applicable, in consultation with the Other Public Entity to which Authorized Facilities will be dedicated) shall determine the Acquisition Price (or in the case of a reimbursement, the reimbursement amount, which hereinafter is included in the term “Acquisition Price”) to be paid by the City for the acquisition from Developer of the portions of the Authorized Facilities constructed by Developer during said prior month. City Inspectors shall verify the type and quantity of work described in the Request for Payment as having been completed and confirm said work is completed in a satisfactory manner. City Inspectors shall transmit to the City’s Finance Department the findings of their review and then consult with the Finance Department as needed to determine the Acquisition Price. The Acquisition Price for the portion of an Authorized Facility shall include the actual cost of construction (or payment) thereof as determined by the contract prices as set forth in contracts and purchase orders entered into by Developer with its contractors, and suppliers, in accordance with the terms of this Agreement and the applicable Development Documents. The City shall use its best efforts to determine the Acquisition Price within 30 days from receipt of a Request for Payment. Upon determining the Acquisition Price, City shall promptly notify Developer in writing of such Acquisition Price. The City may utilize third-party consultants to assist with this process. (c) Payment of Acquisition Price. Within 45 days after receipt of a complete (as reasonably determined by City) Request for Payment, the City, through its fiscal agent, shall pay from the Available Proceeds the Acquisition Price then due to Developer.
Upon completion of an Authorized Facility in its entirety and acceptance of such Authorized Facility by the City, the City, through its fiscal agent, shall pay from the Available Proceeds the balance, if any, of the Acquisition Price then due Developer for such Facility. City may withhold payment from Developer if the Developer is delinquent in the payment of any special taxes due with respect to property owned by the Developer in the District, until such time as the overdue special taxes are paid in full. For the purposes of clarity, acceptance of a completed Authorized Facility is not a condition precedent to the payment of the Acquisition Price of the Authorized Facility in accordance with this subsection. (d) Payment Limited to Available Proceeds. As noted hereunder, payments to Developer shall be payable solely from the Available Proceeds. The amount to be paid to Developer shall be a reimbursement for actual costs incurred as determined by the City in accordance with this Agreement and shall not exceed the Developer’s cost thereof as reasonably determined by the City to be eligible under the Act to be part of the Acquisition Price of Authorized Facilities. All portions of the Authorized Facilities not acquired with the Available Proceeds shall nonetheless be constructed by the Developer, to the extent required by the Development Documents. In the event Available Sales Proceeds are insufficient to pay the eligible Acquisition Price, the Gap Shortfall (as defined in Section 8, below) shall be the responsibility of the Developer, subject, however to Developer’s right to request that all or any portion of such Gap Shortfall be reimbursed from (i) the proceeds of one or more additional series of Bonds issued within the District if and when such additional Bonds are issued, and in such event the deferred amount will be eligible for reimbursement from proceeds of such future Bonds, to the extent funds are available, and/or (ii) Available Special Tax Revenues (defined in Section 8, below).
Developer shall not be entitled to reimbursement for costs allocable to any Authorized Facility which has previously been acquired by the City and reimbursed from other sources, if, in the opinion of the City, such reimbursement would create a double payment to Developer for such Authorized Facility, or component thereof. (e) Accounting of Available Proceeds. At the request of Developer, which shall be not more than once per quarter calendar year during the term of this Agreement, City shall prepare and provide to Developer an accounting (an “Accounting”) of the following: (i) the total amount of Available Proceeds then on deposit in the Improvement Fund hereunder and deposited thereto; (ii) if not previously provided to Developer, the fiscal year tax roll submitted to the County Auditor-Controller; (iii) the amount of all charges and credits to the Improvement Fund from the date of the last Accounting, including interest earnings on the funds therein and charges for City administration and any third party consultant or administration fees; (iv) the total amount then on deposit in the reserve fund, and (v) the amount, if any, of outstanding payments then approved for payment to Developer pursuant to approved Requests for Payment.
Section 8. Gap Shortfall; Available Special Tax Revenues. (a) “Gap Shortfall” Defined. The parties anticipate that a shortfall may occur between: (i) the anticipated cost of the design and construction of the Authorized Facilities, and (ii) the Available Sales Proceeds (hereafter referred to as the “Gap Shortfall”). (b) Reimbursement of Gap Shortfall to Developer. To cover the Gap Shortfall, the Developer may agree with the City to defer all or any portion of such payment until and to the extent the District can impose and collect annual special taxes (within the applicable improvement area) in excess of the amounts required annually to pay required debt service, replenish the debt service reserve fund, cure bond delinquencies and pay City administration costs and subject to the escalation calculated as provided in the Rate and Method of Apportionment for the District (“Available Special Tax Revenues”). In consideration of such deferral of payment of the Gap Shortfall, the City shall levy the maximum rate on Developed Property and Final Map Property (as defined in the Rate and Method of Apportionment of Special Tax for the District) within the applicable improvement area, and annually pay, after September 1st of each year, to Developer from Available Special Tax Revenues payments toward such deferred Acquisition Price (escalated by an amount equal to the increase, if any, in construction costs set forth in the Engineering News-Record Construction Cost Index 20-City Average (plus San Francisco) beginning on the date of Developer’s election to defer such deferred Acquisition Price and ending upon the date that such Acquisition Price is repaid), for a period of 15 years (unless the Gap Shortfall is sooner paid in full) beginning with Available Special Tax Revenues from the special tax levy within an improvement area for a fiscal year to be designated by the Developer in writing to the City as the initial fiscal year (each a “Gap Shortfall Period”). Notwithstanding anything to the contrary contained herein, (i) the deferral of all or any portion of the repayment of a Gap Shortfall shall not prevent the City, upon the Developer’s request, from issuing additional bond debt within the District, and (ii) subject to the application of the Gap Shortfall Period limitation to each such improvement area, upon the Developer’s request, the City may reimburse Developer for Gap Shortfalls with Available Special Tax Revenues collected from the applicable improvement area as well as other improvement areas located within the District. After the expiration of the Gap Shortfall Period and the retirement of all debt issued within the District, the City may use Available Special Tax Revenues for any other purpose authorized for the District. (c) Personal to Developer. Regardless of who pays the cost for any Authorized Facilities, the reimbursement of the Gap Shortfall hereunder shall be personal to Developer, shall not run with the land, but may be assigned by Developer with written notice thereof provided to the City.
Section 9. Assignment. Developer may not assign this Agreement or any right or duty hereunder without the express written approval of the City. The City’s approval of an assignment of this Agreement and the rights and duties of Developer hereunder shall not be unreasonably withheld or delayed. Provided, however, that where the City approves the assignment (in whole or in part) of a subdivision improvement agreement relating to the Property, the City shall not disapprove an assignment hereof (in whole or in part) in connection therewith, if requested by Developer.
Section 10. Prompt Action. All consents, approvals and determinations required of either the City or Developer pursuant to this Agreement shall be promptly given or made, and shall not be unreasonably withheld.
Section 11. General. This Agreement contains the entire agreement between the parties with respect to the matters herein provided for and may be amended by a subsequent written agreement signed on behalf of both parties. This Agreement is for the exclusive benefit of the parties and shall not be construed to confer any rights or benefits upon any persons other than the City and Developer. This Agreement shall, however, inure to the benefit of and be binding upon the successors and permitted assigns of the parties. This Agreement shall be construed and governed by the Constitution and laws of the State of California. Should either party to this Agreement commence a court action or proceeding against the other party with respect to this Agreement, the party prevailing in such action or proceeding shall be entitled to receive from the losing party its attorney’s fees and court costs incurred by it in successfully prosecuting or defending such action or proceeding. The captions of the sections of this Agreement are provided for convenience only and shall not have any bearing on the interpretation of any section hereof. This Agreement may be executed in several counterparts, each of which shall be an original of the same Agreement. [Signatures on following page.]
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the date first above written.
CITY OF MANTECA,
a municipal corporation
By: _______________________________
Name: ____________________________
Title: _____________________________
JEN CALIFORNIA 23, LLC,
a California limited liability company
By: _______________________________
Name: ____________________________
Title: _____________________________
EXHIBIT A
List of Authorized Facilities
The City of Manteca Community Facilities District No. 2023-1 (Villa Ticino West Facilities) (the “CFD”), Improvement Area No. 1 of the CFD, and each Improvement Area designated in the future in conjunction with subsequent annexations of all or any part of the Future Annexation Area or any other property is authorized to finance all or a portion of the costs of acquisition, construction, and improvement of facilities generally described as follows:
1. Roadway and Transportation Improvements (including pavement, curb, gutter, sidewalks, joint trench utilities, signals, street lights, stop signs, general signage, local & regional drainage, landscaping & irrigation (including backflow preventers), soundwalls, entry monumentation, and striping), including, but not limited to:
Louise Avenue
Airport Way
2. Water System and Irrigation Improvements, including but not limited to, any and all major public water facilities required to meet the needs of development within the CFD.
3. Recycled Water System Improvements, including but not limited to, any and all major public recycled water facilities required to meet the needs of development within the CFD.
4. Drainage System Improvements, including but not limited to, any and all major public drainage facilities required to meet the needs of development within the CFD.
5. Wastewater System Improvements, including but not limited to, any and all major public sewer facilities required to meet the needs of development within the CFD.
6. Environmental Mitigation, including but not limited to, any and all environmental mitigation costs and expenses required to meet the needs of development within the CFD.
7. Park, Trails, Landscaping and Open Space Improvements, including but not limited to, any and all on-site and off-site publicly-owned park, trail, landscaping and open space facilities required to meet the needs of development within the CFD, including:
North Park
South Park
Linear Park
8. Incidental Costs, including engineering studies, permitting, public facilities report, financing plan, including, but not limited to consultant fees, application fees, processing fees, and document production costs associated with the CFD preparation and processing of public facilities reports, engineering studies, CFD reports, financing plans, environmental permitting, and environmental studies, as well as other costs associated with the district formation and bond sales process.
9. Other Facilities, including, but not limited to:
Any other facilities serving substantially the same purpose as the above-described facilities.
Any other facilities permitted under the Mello-Roos Community Facilities Act of 1982, including the facilities described in Section 53313.5 of the California Government Code, as amended from time to time, provided that such facilities satisfy at least one of the following criteria: 1) augment, improve or expand existing District facilities that are primarily for the benefit of the District, or 2) repair or rehabilitate existing District facilities.
The foregoing description of the type of Facilities eligible to be financed is general in nature and includes any appurtenant work and incidental expenses related to the Facilities. The final nature and location of the facilities will be determined upon the preparation of final plans and specifications for such facilities.
Any facility authorized to be financed by the CFD and each Improvement Area (as originally designated and as designated in the future in conjunction with subsequent annexations of all or any part of the Future Annexation Area or any other property) may be financed through the construction and acquisition of the facility or through the payment of fees for such facility.
The facilities authorized to be financed may be located within or outside the boundaries of the CFD or any Improvement Area (as originally designated and as designated in the future in conjunction with subsequent annexations of all or any part of the Future Annexation Area or any other property). The facilities financed through the payment of fees for such facility may be located within or outside the CFD.
The facilities to be financed shall include all hard and soft costs associated with the facilities, including the costs of the acquisition of land and rights-of-way, the costs of design, engineering and planning, the costs of any environmental or traffic studies, surveys or other reports, costs related to landscaping and irrigation, soils testing, permits, plan check, and inspection fees, insurance, legal and related overhead costs, coordination and supervision and any other costs or appurtenances related to any of the foregoing as further defined in one or more acquisition agreements with the developer of the property in the CFD (and each Improvement Area therein, as originally designated and as designated in the future in conjunction with subsequent annexations of all or any part of the Future Annexation Area or any other property).
EXHIBIT B
Payment Request Form
City of Manteca
Community Facilities District No. 2023-1
(Villa Ticino West Facilities)
Request for Payment
The undersigned hereby requests payment pursuant to the Funding, Construction and Acquisition Agreement dated September 1, 2023 (the “Agreement”), between the CITY OF MANTECA and JEN CALIFORNIA 23, LLC, a California limited liability company (“Developer”), in the total amount of $____________. Capitalized terms used herein unless otherwise defined herein shall have the meanings ascribed thereto in the Agreement.
The payment requested is for the portion of the Authorized Facility that has been completed by Developer (the “Completed Work”) and is the subject of this request for payment, as more fully described in Schedule 1 attached hereto. In connection with this request for payment, the undersigned hereby represents and warrants to City as follows:
1. The person executing this request on behalf of the Developer is duly authorized to do so and is knowledgeable as to the matters set forth herein.
2. The Completed Work described in Schedule 1 hereto has been constructed in accordance with the approved plans therefor.
3. The true and correct actual cost of the Completed Work for which payment is requested is set forth in Schedule 1.
4. Attached hereto are invoices, receipts, worksheets and other evidence of actual cost that are in sufficient detail to allow City Inspectors and City consultants to verify the actual cost of the Completed Work for which payment is requested. The amount requested hereby [excludes a retention of 10% of the amounts invoiced] [includes an amount previously retained from payment] pursuant to the terms of a construction contract.
5. There has not been filed with or served upon the Developer notice of any lien, right to lien or attachment upon, or claim affecting the right to receive the payment requested herein that has not been released or will not be released simultaneously with the payment of such obligation, other than materialman’s or mechanics’ liens accruing by operation of law. Copies of lien releases for all Completed Work for which payment is requested hereunder are attached hereto.
6. The Developer is in compliance with the terms and provisions of the Agreement. Payment of the amount requested hereby should be made payable to:
and sent to:
at the following address:
I(we) hereby declare under penalty of perjury that the above representations and warranties are true and correct.
Developer:
JEN CALIFORNIA 23, LLC,
a California limited liability company
By: _______________________________
Name: ____________________________
Title: ______________________________
_________________________________________________________________________ (ATTACHMENT)
SCHEDULE 1
Description of Completed Work and Cost
-8-
[Signature page to Funding, Construction and Acquisition Agreement dated as of September 1, 2023] A-2
A-1
B-2
ATTACHMENT 1