Facilities & Business

School districts face a variety of complicated issues regarding contracting, real property, construction, and facilities use. Our Facilities and Business Group was formed to provide efficient, professional advice and service, and to provide the expertise required to represent clients from project inception to completion. The group is comprised of over 30 attorneys, including nine shareholders who focus on the complex array of issues involved with acquiring properties, financing, building and modernizing schools, closing school sites, selling and leasing school properties, use of school district facilities, and the myriad of other property and facility issues faced by school districts.

Real Property Financing Matters

In matters of capital funding for public facilities, the firm offers impressive credentials and has provided bond counsel and advice as to certificates of participation (COP) to numerous public agencies. The firm regularly advises clients on permissible conduct in bond elections and has handled challenges based on alleged violations of law in this area. In the past three years, the firm has served as counsel in ten bond elections ranging in scope from $1.62 million to $286 million.

Land Acquisition

Lozano Smith has extensive experience in all aspects of property acquisition, including reviewing, drafting and negotiating sophisticated real property transactions. These transactions have included negotiated purchases, real property exchanges with both private and public entities, acquisition through developer agreements, and eminent domain. The firm also has extensive experience dealing with the California Department of Education and other state agencies in the approval and acquisition of property. Our attorneys are very familiar with issues concerning entitlements, dedications, title and survey matters and real property due diligence.

Land Use

Lozano Smith has extensive experience in land and facility use issues affecting California's public school district. When addressing approval, permitting authority or fees from other local governmental agencies for particular land use by a school district, we have been involved in a range of situations, from successful collaborative efforts, to negotiations, to litigation. Where possible, our focus has been on working cooperatively with other local entities.

In the arena of facilities use, the firm has drafted and negotiated numerous joint use agreements and other arrangements for the development and/or use of school district and other community facilities. Our attorneys are well versed in the Civic Center Act and other relevant laws concerning use of school district property and facilities. This extends to complex issues involving the interaction of facility or property use and the rights of individuals or groups to freedom of speech and/or religion. We have also prepared and negotiated many leases, including long and short-term space leases, ground leases, tenant improvement agreements and licenses to enter District property.

In the area of land use, the firm has also negotiated easement agreements involving roads, access, utilities, and other issues. As an example, the firm recently negotiated easement agreements for the expansion of roads in Fresno County for a new education complex in Clovis Unified School District. In that instance, several residential property owners were affected by the need to improve access to a large, multi-building complex. Easements were ultimately worked out to the satisfaction of all involved parties.

Developer Fees/Developer Built Schools

Lozano Smith has long been a leader in the areas of developer fees and developer built schools. We have negotiated numerous developer fee agreements throughout the State. We have also defended challenges to both "Level 1" and "Level 2" impact fees, including through litigation. Lozano Smith has literally written the book on developer fees, publishing the Developer Fee Handbook for School Facilities, which is updated annually.

A growing trend in the area of developer fees is agreements for developers to build, rather that just fund, new schools. Lozano Smith has been at the forefront of that trend, having negotiated developer-built school agreements throughout the State, including in the Walnut Creek Valley Unified School District where developers are building seven new schools, including a comprehensive high school that, with land included, has a value approaching $200 million. We also negotiated a developer agreement in Westside Union School District that has involved potential developer built schools, and have recently worked the Keppel School District in the Antelope Valley area towards a potential developer-built school there.

Land Disposal

Lozano Smith has assisted many school districts in the surplus property process, including helping to form and advise "7-11" advisory committees, and providing guidance on options for a school district to maximize its resources from surplus properties and facilities. We have prepared creative contracts and also assisted in marketing of properties.

Construction Transactions and Administrative Support

The construction of new facilities is an issue common to many of the firm's clients. While each new project presents unique circumstances, many considerations are common to most projects. Lozano Smith has accounted for these considerations in contractual documents it has prepared and regularly updates to assist our clients through a construction project. These documents include an architect agreement, construction management agreement, inspector of record agreement and complete sets of construction contract documents for both general contractor and multiple prime contractor projects. We have prepared these documents to be protective of school districts while remaining reasonable and fair to the other contracting party. We find that our documents have held up very well in the face of challenges, particularly when compared to other model documents sometimes in use by school districts.

California Environmental Quality Act (CEQA), DTSC Compliance

Lozano Smith has extensive experience assisting school districts with issues relating to the California Environmental Quality Act (CEQA) and other environmental laws. We frequently advise school districts as to how they may best navigate CEQA procedures and avoid challenges, and are often called upon to negotiate disputes concerning CEQA compliance. We have reviewed environmental documents for various school districts prior to their adoption. We have also developed a "CEQA Checklist," available on our website, that is a user-friendly guide to assist school districts in making initial determinations of the level of CEQA review that is required for particular projects.

Lozano Smith attorneys also have experience negotiating the Department of Toxic Substances Control (DTSC) process, and have assisted school districts in numerous regards concerning DTSC. That has included coordinating and negotiating with, and where necessary, disputing with DTSC in order to keep school projects on a reasonable time line. We have also reviewed and are familiar with Phase I and Phase II studies and Preliminary Endangerment Analyses (PEAs).