RESOLUTION NO. 2017-0136 Adopted by the Sacramento City Council April 18, 2017 Authorizing the City to Join the Statewide Community Infrastructure Program; Authorizing the California Statewide Communities Development Authority to Accept Applications from Property Owners, Conduct Special Assessment Proceedings, and Levy Assessments Within the City s Territory; Approving Form of Acquisition Agreement for Use When Applicable; and Authorizing Related Actions BACKGROUND A. The California Statewide Communities Development Authority (the Authority ) is a joint-exercise-of-powers authority whose members include numerous cities and counties in California, including the City of Sacramento (the City ). B. The Authority has established the Statewide Community Infrastructure Program ( SCIP ) to allow the financing of certain development-impact fees (the Fees ) levied in accordance with the Mitigation Fee Act (Government Code sections 66000 through 66025) and other authorities providing for the levy of fees on new development to pay for public capital improvements (collectively, the Fee Act ). This financing is done through the levy of special assessments under the Municipal Improvement Act of 1913 (Streets and Highways Code sections 10000 through 10706) (the 1913 Act ) and the issuance of improvement bonds (the Local Obligations ) under the Improvement Bond Act of 1915 (Streets and Highways Code sections 8500 through 8887) (the 1915 Act ) upon the security of the unpaid special assessments. C. SCIP will also allow the financing of certain public capital improvements to be constructed by or on behalf of property owners for acquisition by the City or another public agency (the Improvements ). D. The City desires to allow the owners of property being developed within its jurisdiction ( Participating Developers ) to participate in SCIP and to allow the Authority to conduct assessment proceedings under the 1913 Act and issue Local Obligations under the 1915 Act to finance Fees levied on those properties and Improvements, provided that the Participating Developers voluntarily elect to participate and consent to the levy of the assessments. E. In each year in which eligible property owners within City s jurisdiction elect to be Participating Developers, the Authority will conduct assessment proceedings under the 1913 Act and issue Local Obligations under the 1915 Act to finance Fees payable by the property owners and Improvements and, at the conclusion of the proceedings, will levy special assessments on the property within the City s territory. Resolution 2017-0136 April 18, 2017 Page 1 of 31
F. Attached to this resolution as Exhibit A is a proposed form of Resolution of Intention to be adopted by the Authority in connection with the assessment proceedings (the ROI ). The territory within which assessments may be levied for SCIP (provided that each Participating Developer consents to the assessment) will be coterminous with the City s official boundaries of record at the time of adoption of each such ROI (the Proposed Boundaries ), and reference is hereby made to those boundaries for the plat or map required by section 10104 of the Streets and Highways Code to be included in the ROI. G. Attached to this resolution as Exhibit B is a proposed form of Acquisition Agreement (the Acquisition Agreement ), to be approved as to form for use with respect to any Improvements to be constructed and installed by a Participating Developer and for which the Participating Developer requests acquisition financing as part of its SCIP application. H. The City will not be responsible for conducting any assessment proceedings; for levying or collecting assessments or pursuing any required remedial action in the case of delinquencies in assessment payments; or for issuing, selling, or administering the Local Obligations or any other bonds issued in connection with SCIP. I. As required by Government Code section 6586.5, notice was published at least five days before the adoption of this resolution at a public hearing, duly conducted by the City Council, concerning the significant public benefits of SCIP and the financing of the Improvements and the public capital improvements to be paid for with the proceeds of the Fees. BASED ON THE FACTS SET FORTH IN THE BACKGROUND, THE CITY COUNCIL RESOLVES AS FOLLOWS: Section 1. The City hereby consents to the conduct of special assessment proceedings by the Authority in connection with SCIP under the 1913 Act and to the issuance of Local Obligations under the 1915 Act on any property within the Proposed Boundaries, subject to the following: (a) The proceedings are conducted under one or more ROIs in substantially the form of the ROI attached as Exhibit A. (b) The Participating Developers, who must be the legal owners of the property to be assessed, must execute (1) a written consent to the Authority s levy of assessment in connection with SCIP and (2) an assessment ballot in favor of the assessment in compliance with the requirements of section 4 of article XIIID of the California Constitution. (c) Each Participating Developer must pay the City, at the time the SCIP application is submitted, a non-refundable administrative-processing fee of Resolution 2017-0136 April 18, 2017 Page 2 of 31
$3,800 to recover the cost of staff time to process, review, and verify planning entitlements and impact fees for the project that will participate in SCIP. In addition, the City may charge a Participating Developer a fee based on the City s reasonable costs of administering the City s acquisition of any Improvements constructed under an Acquisition Agreement; this fee will be included in the engineer s estimate of the cost of the Improvement and be payable to the City when the City acquires the Improvement in accordance with the Acquisition Agreement. Section 2. Section 3. Section 4. Section 5. Section 6. The City hereby finds that the Authority s issuance of Local Obligations in connection with SCIP will provide significant public benefits, including savings in effective interest rate; savings in the costs of bond preparation, bond underwriting, and bond issuance; and the more efficient delivery of local agency services to residential and commercial development within the City. The Authority has prepared and will update from time to time the SCIP Manual of Procedures (the Manual ), and the City will handle Fee revenues and funds for Improvements for properties participating in SCIP in accordance with the procedures set forth in the Manual. The form of Acquisition Agreement attached as Exhibit B is hereby approved, and the Mayor is authorized to execute, and the City Clerk is authorized to attest the execution of, a completed Acquisition Agreement in substantially that form and pertaining to the Improvements being financed on behalf of the applicable Participating Developer. The appropriate City officials and staff are hereby authorized and directed (a) to make SCIP applications available to all property owners who are subject to Fees for new development within the City or who are conditioned to install Improvements and (b) to inform those owners of their option to participate in SCIP. The Authority will be responsible for providing the applications and related materials at its own expense. The staff persons listed on the Exhibit C to this resolution, together with any other staff persons designated by the City Manager from time to time, are hereby designated as the contact persons for the Authority in connection with the SCIP program. The appropriate City officials and staff are hereby authorized and directed to execute and deliver such closing certificates, requisitions, agreements and related documents, including such documents as may be required by bond counsel in connection with the participation in SCIP of any districts, authorities, or other third-party entities entitled to own Improvements or to levy and collect fees on new development to pay for public capital improvements within the City s jurisdiction, as are reasonably required by the Authority in accordance with the Manual to implement SCIP for Participating Developers and to evidence compliance with the requirements of federal and state law in connection with the Resolution 2017-0136 April 18, 2017 Page 3 of 31
Authority s issuance of the Local Obligations and any other bonds for SCIP. To that end, and as required by Treasury Regulations 1.150-2, the staff persons listed on Exhibit C, and other staff persons acting in the same capacity for the City with respect to SCIP, are hereby authorized and designated to declare the official intent of the City with respect to the public capital improvements to be paid or reimbursed through participation in SCIP. Section 7. This resolution take effects immediately upon its adoption. As used in this resolution, including means including but not limited to. The City Clerk is hereby authorized and directed to transmit a certified copy of this resolution to the Secretary of the Authority. Table of Contents: Exhibit A-Resolution of Intention Exhibit B-Acquisition Agreement Exhibit C-Contacts Adopted by the City of Sacramento City Council on April 18, 2017, by the following vote: Ayes: Noes: Abstain: Absent: Members Carr, Guerra, Hansen, Harris, Jennings, Schenirer, Warren and Mayor Steinberg None None Member Ashby Attest: The presence of an electronic signature certifies that the foregoing is a true and correct copy as approved by the Sacramento City Council. Resolution 2017-0136 April 18, 2017 Page 4 of 31
EXHIBIT A TO RESOLUTION NO. 2017- FORM OF RESOLUTION OF INTENTION TO BE ADOPTED BY CSCDA RESOLUTION OF INTENTION OF THE CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY TO FINANCE IMPROVEMENTS AND/OR THE PAYMENT OF DEVELOPMENT IMPACT FEES FOR PUBLIC CAPITAL IMPROVEMENTS IN THE PROPOSED ASSESSMENT DISTRICT NO. (COUNTY OF, CALIFORNIA), APPROVING A PROPOSED BOUNDARY MAP, MAKING CERTAIN DECLARATIONS, FINDINGS AND DETERMINATIONS CONCERNING RELATED MATTERS, AND AUTHORIZING RELATED ACTIONS IN CONNECTION THEREWITH WHEREAS, under the authority of the Municipal Improvement Act of 1913 (the 1913 Act ), being Division 12 (commencing with Sections 10000 and following) of the California Streets and Highways Code, the Commission (the Commission ) of the California Statewide Communities Development Authority (the Authority ) intends to finance, through its Statewide Community Infrastructure Program, the payment of certain development impact fees for public capital improvements as described in Exhibit A attached hereto and by this reference incorporated herein (the Fees ) and to finance certain public capital improvements to be constructed by or on behalf of the property owner(s) and to be acquired by the City or another local agency (the Improvements ), all of which are of benefit to the property within the proposed Assessment District No. (County of, California) (the Assessment District ); and WHEREAS, the Commission finds that the land specially benefited by the Fees and the Improvements is shown within the boundaries of the map entitled Proposed Boundaries of Assessment District No. (County of, California), a copy of which map is on file with the Secretary and presented to this Commission meeting, and determines that the land within the exterior boundaries shown on the map shall be designated Assessment District No. (County of, California) ; NOW, THEREFORE, BE IT RESOLVED that the Commission of the California Statewide Communities Development Authority hereby finds, determines and resolves as follows: 1. The above recitals are true and correct, and the Commission so finds and determines. 2. Pursuant to Section 2961 of the Special Assessment Investigation, Limitation and Majority Protest Act of 1931 (the 1931 Act ), being Division 4 (commencing with Section 2800) of the California Streets and Highways Code, the Commission hereby declares its intent to comply with the requirements of the 1931 Act by complying with Part 7.5 thereof. OHSUSA:766536480.2 A-1 Resolution 2017-0136 April 18, 2017 Page 5 of 31
3. The Commission has or will designate a registered, professional engineer as Engineer of Work for this project, and hereby directs said firm to prepare the report containing the matters required by Sections 2961(b) and 10204 of the Streets and Highways Code, as supplemented by Section 4 of Article XIIID of the California Constitution. 4. The proposed boundary map of the Assessment District is hereby approved and adopted. Pursuant to Section 3111 of the California Streets and Highways Code, the Secretary of the Authority is directed to file a copy of the map in the office of the County Recorder of the County of within fifteen (15) days of the adoption of this resolution. 5. The Commission determines that the cost of the Fees and Improvements shall be specially assessed against the lots, pieces or parcels of land within the Assessment District benefiting from the payment of the Fees and the provision of the Improvements. The Commission intends to levy a special assessment upon such lots, pieces or parcels in accordance with the special benefit to be received by each such lot, piece or parcel of land, respectively, from the payment of the Fees and the provision of the Improvements. 6. The Commission intends, pursuant to subparagraph (f) of Section 10204 of the California Streets and Highways Code, to provide for an annual assessment upon each of the parcels of land in the proposed assessment district to pay various costs and expenses incurred from time to time by the Authority and not otherwise reimbursed to the Authority which result from the administration and collection of assessment installments or from the administration or registration of the improvement bonds and the various funds and accounts pertaining thereto. 7. Bonds representing unpaid assessments, and bearing interest at a rate not to exceed twelve percent (12%) per annum, will be issued in the manner provided by the Improvement Bond Act of 1915 (Division 10, Streets and Highways Code), and the last installment of the bonds shall mature not to exceed thirty (30) years from the second day of September next succeeding twelve (12) months from their date. 8. The procedure for the collection of assessments and advance retirement of bonds under the Improvement Bond Act of 1915 shall be as provided in Part 11.1, Division 10, of the Streets and Highways Code of the State of California. 9. Neither the Authority nor any member agency thereof will obligate itself to advance available funds from its or their own funds or otherwise to cure any deficiency which may occur in the bond redemption fund. A determination not to obligate itself shall not prevent the Authority or any such member agency from, in its sole discretion, so advancing funds. 10. The amount of any surplus remaining in the improvement fund after payment of the Fees, acquisition of the Improvements and payment of all claims shall be OHSUSA:766536480.2 A-2 Resolution 2017-0136 April 18, 2017 Page 6 of 31
distributed in accordance with the provisions of Section 10427.1 of the Streets and Highways Code. 11. To the extent any Fees are paid to the Authority in cash with respect to property within the proposed Assessment District prior to the date of issuance of the bonds, the amounts so paid shall be reimbursed from the proceeds of the bonds to the property owner or developer that made the payment. [End of Form of CSCDA Resolution of Intention] OHSUSA:766536480.2 A-3 Resolution 2017-0136 April 18, 2017 Page 7 of 31
OHSUSA:766536480.2 A-4 Resolution 2017-0136 April 18, 2017 Page 8 of 31
EXHIBIT B TO RESOLUTION NO. 2017- FORM OF ACQUISITION AGREEMENT CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY STATEWIDE COMMUNITY INFRASTRUCTURE PROGRAM ACQUISITION AGREEMENT BETWEEN CITY OF SACRAMENTO AND [DEVELOPER] Dated as of, 20 B-1 Resolution 2017-0136 April 18, 2017 Page 9 of 31
ACQUISITION AGREEMENT This Acquisition Agreement, dated as of 20, for reference, is between the CITY OF SACRAMENTO, a California municipal corporation (the City ), and [DEVELOPER], a [here indicate type of legal entity] (the Developer ). Background A. The Developer has applied for the financing of certain public capital improvements (the Acquisition Improvements ) and capital facilities fees though the Statewide Community Infrastructure Program ( SCIP ) administered by the California Statewide Communities Development Authority (the Authority ), and the City has approved that application. B. The administration, payment, and reimbursement of the capital facilities fees will be governed by the provisions of the SCIP Manual of Procedures as it may be amended from time to time. The administration, payment, and reimbursement of the Acquisition Improvements will be as provided in this agreement. C. Under SCIP, the Authority intends to issue bonds to fund, among other things, all or a portion of the costs of the Acquisition Improvements, and the portion of the proceeds of the bonds allocable to the cost of the Acquisition Improvements to be constructed and installed by the Developer, together with interest earned on the proceeds before acquisition, is the Available Amount. D. SCIP will provide financing for the acquisition by the City of the Acquisition Improvements and the payment of the Acquisition Price (as defined in section 1 below) of the Acquisition Improvements from the Available Amount. Attached hereto as Exhibit A are descriptions of the Acquisition Improvements. Those descriptions are subject to modification by written amendment of this agreement with the Authority s approval. E. The parties anticipate that, upon completion of the Acquisition Improvements and subject to the terms and conditions of this agreement, the City will acquire the completed Acquisition Improvements using the Available Amount. F. All monetary obligations of the City arising out of this agreement are the special and limited obligations of the City payable only from the Available Amount, and no other City funds are obligated to pay those obligations. With these background facts in mind, the parties hereby agree as follows: 1. Defined Terms. Acceptable Title means free and clear of all taxes and of all monetary liens, encumbrances, and assessments, whether recorded or unrecorded, except those items the City Engineer determines, in his sole discretion, will not interfere with the B 2 Resolution 2017-0136 April 18, 2017 Page 10 of 31
intended use of the Acquisition Improvements and therefore need not be cleared from the title. Acquisition Price means the amount paid to the Developer upon the City s acquisition of all the Acquisition Improvements as provided in section 3.3. Actual Cost means the construction cost of all the Acquisition Improvements, as documented by the Developer to the City s satisfaction and certified by the City Engineer in an Actual Cost Certificate, plus an amount to reimburse the Participating Developer for the City s $3,800 application processing fee and an amount to reimburse the City for its costs of bidding construction contracts for the Project and verifying the Developer s compliance with this agreement. Actual Cost Certificate means a certificate prepared by the Developer detailing the Actual Cost of all Acquisition Improvements to be acquired under this agreement, as revised by the City Engineer in accordance with section 3.3. Assessment District means the assessment district that is established by the Authority in accordance with SCIP and includes the Developer s property for which the Acquisition Improvements are being funded. Code means the California Streets and Highways Code. Developer Acquisition Account means the account the Authority establishes by that name in accordance with SCIP for paying the Acquisition Price. City Engineer means the City s Public Works Director (the Director ) or the Director s designee, who will be responsible for administering the acquisition of the Acquisition Improvements under this agreement. Project means the Developer s land development program for the Developer s property in the Assessment District, including the design and construction of the Acquisition Improvements and the other public and private improvements to be constructed by the Developer within or adjacent to the Assessment District. SCIP Requisition means a requisition for payment of funds from the Developer Acquisition Account in substantially the form attached hereto as Exhibit B. SCIP Trust Agreement means the Trust Agreement between the Authority and the SCIP Trustee for the financing of the Acquisition Improvements. SCIP Trustee means Wilmington Trust, National Association, as trustee under the SCIP Trust Agreement. B 3 Resolution 2017-0136 April 18, 2017 Page 11 of 31
Title Documents means, for each Acquisition Improvement acquired under this agreement, a grant deed or similar instrument necessary to transfer title to any real property or interests in the real property (including easements) necessary or convenient to the City s operation, maintenance, rehabilitation, or improvement of that Acquisition Improvement (including, if necessary, easements for ingress and egress) and a Bill of Sale or similar instrument evidencing transfer of title to that Acquisition Improvement to the City (other than the real property interests), where applicable. 2. Assessment District Formation and Financing Plan 2.1 Participation in SCIP. Developer has applied for financing through SCIP of the Acquisition Improvements and has paid the City s application processing fee, and the City has approved the application. Until the Authority completes the financing and the Available Amount is deposited in the Developer Acquisition Account, neither the Developer nor the City will be obligated under this agreement. Developer shall cooperate with the City and the Authority in the completion of SCIP financing for the Acquisition Improvements. 2.2 Deposit and Use of Available Amount. (A) (B) (C) The Authority will cause the SCIP Trustee to establish and maintain the Developer Acquisition Account to hold all funds for the Acquisition Improvements. All earnings on amounts in the Developer Acquisition Account will remain there for use as provided by this agreement and SCIP. Upon completion of the SCIP financing, the Authority will deposit the Available Amount in the Developer Acquisition Account. The City shall withdraw amounts in the Developer Acquisition Account in accordance with SCIP procedures and use the withdrawn amounts to pay the Acquisition Price of the completed Acquisition Improvements within 30 days after both of the following have occurred (or as soon after as reasonably practicable): (1) the City Engineer receives the Actual Cost Certificate in accordance with section 3.3, and (2) the conditions precedent in section 3.4 are satisfied. Any funds remaining in the Developer Acquisition Account after completion of all the Acquisition Improvements and payment of all costs for the Acquisition Improvements will be used as follows: (1) first, the City may retain the amount it considers necessary to establish a reserve for claims against the account; (2) second, with the Authority s approval, the City may pay the costs of any additional improvements eligible for acquisition with respect to the Project; and (3) third, as provided in section 10427.1 of the Code, the Authority may pay a portion of the assessments levied on the Project property within the Assessment District. B 4 Resolution 2017-0136 April 18, 2017 Page 12 of 31
2.3. No City Liability and No Effect on Other Agreements. The City will incur no monetary liability for its actual or alleged acts and omissions with respect to SCIP. This agreement does not affect the Developer s or the City s respective obligations under any other agreements, public improvement standards, land use regulations, or subdivision requirements related to the Project. Those obligations are and will remain independent of the Developer s and the City s respective rights and obligations under this agreement. 3. Design, Construction, and Acquisition of Acquisition Improvements 3.1 Letting and Administering Design Contracts. The Developer has awarded and administered, or will award and administer, engineering design contracts for the Acquisition Improvements to be acquired from Developer. All eligible expenditures of the Developer for design engineering and related costs in connection with the Acquisition Improvements (whether as an advance to the City or directly to the design consultant) will be reimbursed at the time of acquisition of the Acquisition Improvements. The Developer is entitled to reimbursement for any design costs of the Acquisition Improvements only out of the Acquisition Price as provided in section 3.3 and is not entitled to any payment for design costs independent of, or prior to, the acquisition of Acquisition Improvements. 3.2 Letting and Administration of Construction Contracts. California law requires that all Acquisition Improvements be constructed as if they were constructed under the direction and supervision of the City. To assure compliance with those provisions, except for any contracts entered into before the date of this agreement, the Developer shall comply with the City s Guidelines for Special District Acquisition Projects attached as Exhibit C to this agreement. All such contracts must call for payment of prevailing wages as required by the California Labor Code. 3.3 Sale of Acquisition Improvements. When the Acquisition Improvements to be constructed by Developer are completed to the City s satisfaction, the Developer shall sell to the City the Acquisition Improvements (including any rights of way or other easements necessary for the operation and maintenance of the Acquisition Improvements, to the extent not already publicly owned) for an amount not to exceed the lesser of the Available Amount and the Actual Cost of the Acquisition Improvements. Exhibit A to this agreement is a list of each Acquisition Improvement. When an Acquisition Improvement is completed, the Developer shall deliver to the City Engineer a written request for acquisition, accompanied by an Actual Cost Certificate and executed Title Documents for the transfer of the Acquisition Improvement, when necessary. If the City Engineer finds that the supporting paperwork submitted by the Developer fails to demonstrate the required relationship between the subject Actual Cost and the related Acquisition Improvement, the City Engineer shall advise the Developer that the determination of the Actual Cost (or the ineligible portion of the Actual Cost) has been disallowed B 5 Resolution 2017-0136 April 18, 2017 Page 13 of 31
and shall request further documentation from the Developer. If the further documentation is still not adequate, the City Engineer may revise the Actual Cost Certificate to delete any disallowed items, and that determination will be final and conclusive. (A) (B) If the Actual Cost exceeds the Available Amount, the City shall withdraw the Available Amount from the Developer Acquisition Account and transfer that amount to the Developer. If the Actual Cost is less than the Available Amount, the City shall withdraw an amount from the Developer Acquisition Account equal to the Actual Cost and shall transfer that amount to the Developer. Any amounts then remaining in the Developer Acquisition Account will be applied as provided in section 2.2. The City is not required to pay the Developer more than the amount on deposit in the Developer Acquisition Account when payment is requested. 3.4 Conditions Precedent to Payment of Acquisition Price. Payment by the City to the Developer from the Developer Acquisition Account of the Acquisition Price for an Acquisition Improvement is conditioned upon the City Engineer s determination in accordance with section 3.3 that the Acquisition Improvement is complete and ready for acceptance by the City, and upon prior satisfaction of the following additional conditions: (A) (B) (C) (D) The Developer must have provided the City with lien releases or other similar documentation satisfactory to the City as evidence that the property subject to the special assessment liens of the Assessment District is not subject to any prospective mechanic s lien claim respecting the Acquisition Improvements. All due and payable property taxes and installments of special assessments must be current on property owned by the Developer (or under option to the Developer) that is subject to the special assessment liens of the Assessment District. The Developer must certify that it is not in default with respect to any loan secured by any interest in the Project. The Developer must have provided the City with Title Documents needed to provide the City with title to the site, right of way, or easement upon which the subject Acquisition Improvements are situated. All Title Documents must be in a form acceptable to the City (or applicable governmental agency, if the City is not taking title) and must convey Acceptable Title. The Developer must provide a policy of title insurance as of the date of transfer, in a form acceptable to the City Engineer, insuring the City as to the interests acquired in connection with the acquisition of any interest for which the policy of title insurance is not required by another agreement between the City and the B 6 Resolution 2017-0136 April 18, 2017 Page 14 of 31
Developer. Each title insurance policy must be in the amount equal to or greater than the Acquisition Price. 3.6 SCIP Requisition. Upon a determination by the City Engineer to pay the Acquisition Price of the Acquisition Improvements in accordance with section 3.4, the City Engineer shall cause a SCIP Requisition to be submitted to BLX Group LLC, the SCIP Program Administrator. BLX Group LLC will review the SCIP Requisition and forward it with instructions to the SCIP Trustee, and the SCIP Trustee will pay the amount set forth in the SCIP Requisition directly to the Developer in accordance with the SCIP Trust Agreement. The SCIP Trustee will make payment strictly in accordance with the SCIP Requisition and will not be required to determine whether the Acquisition Improvements have been completed or what the Actual Costs may be with respect to the Acquisition Improvements. The SCIP Trustee may rely on the SCIP Requisition on its face without any further duty of investigation. 4. Miscellaneous 4.1 Indemnification and Hold Harmless. (A) The Developer shall indemnify, defend, protect, and hold harmless the City and the Authority and each of the City s and the Authority s elected officials, directors, officers, employees, and agents from and against all liabilities, claims, demands, damages, and costs (including reasonable attorneys fees and litigation costs through final resolution on appeal) that result from or are alleged to have resulted from (1) the acts or omissions of the Developer or the Developer s officers, employees, or agents in the performance of this agreement; (2) any contract for the design, engineering, or construction of the Acquisition Improvements; or (3) any actual or alleged misstatement of fact or actual or alleged omission of a material fact by the Developer or the Developer s officers, directors, employees, or agents to the Authority s underwriter, financial advisor, appraiser, district engineer, or bond counsel (a) regarding the Developer, its proposed developments, its property ownership, or its contractual arrangements and (b) contained in the official statement relating to the SCIP financing (provided that the Developer received a copy of the official statement and did not object to it). (B) This section 4.1 does not limit the City s rights against any of the Developer s architects, engineers, contractors, or other consultants. B 7 Resolution 2017-0136 April 18, 2017 Page 15 of 31
(C) (D) Except as set forth in this section 4.1, this agreement does not limit the extent of the Developer s responsibility for payment of damages resulting from the operations of the Developer or the Developer s agents and employees. This section 4.1 does not obligate the Developer to indemnify the City or the Authority or any of the City s or the Authority s elected officials, officers, directors, employees, or agents for any negligent or wrongful acts or omissions of the City or the Authority or the City s or the Authority s elected officials, officers, employees, agents, consultants, or contractors. 4.2 Audit. During the Developer s normal business hours and after giving the Developer 10 days written notice, the City may to review Developer s records pertaining to costs the Developer incurred in constructing the Acquisition Improvements and for which the Developer seeks reimbursement. 4.3 Cooperation. The City and the Developer shall cooperate with respect to the completion of SCIP financing for the Acquisition Improvements. The City and the Developer shall meet in good faith to resolve any differences on future matters that are not specifically covered by this agreement. 4.4 General Standard of Reasonableness. Any provision of this agreement that requires the consent, approval, or acceptance of a party or of an officer, employee, or agent of the party will be deemed to require that the consent, approval or acceptance not be unreasonably withheld or delayed, unless the provision expressly incorporates a different standard. The foregoing provision does not apply to provisions in this agreement that provide for decisions to be in the sole discretion of the party making the decision. 4.5 Third Party Beneficiaries. This agreement is solely for the benefit of the City and the Developer. It is not intended to benefit any third parties, except as follows: the Authority and its officers, employees, agents, consultants, and contractors are third party beneficiaries, but only with respect to section 4.1. 4.6 Conflict with Other Agreements. This agreement does not release the Developer or the City from any condition of development or requirement imposed by any other agreement between the City and the Developer. If a conflict exists between a provision in this agreement and a provision in another agreement, then the other agreement will prevail unless the City and the Developer waive the conflict in writing. 4.7 Notices. All invoices for payment, reports, notices, or other communications under this agreement (each, a Notice ) must be in writing and will be considered properly given and effective only when mailed or delivered in the manner provided by this section 4.7 to the persons identified below. A Notice that is mailed will be effective or will be considered to have been given on the third day after it is B 8 Resolution 2017-0136 April 18, 2017 Page 16 of 31
deposited in the U.S. Mail (certified mail and return receipt requested), addressed as set forth below, with postage prepaid. A Notice sent in any other manner will be effective or will be considered properly given when actually delivered. A party may change its address for these purposes by giving written notice of the change to the other party in the manner provided in this section 4.7 If to the City: City of Sacramento Community Development Department 300 Richards Boulevard, Third Floor Sacramento, California 95814 Attention: [Name] [Title] If to the Developer: [Name] [Address] Attention: [Name] [Title] 4.8. Severability. If a court with jurisdiction rules that any provision of this agreement is invalid, unenforceable, or contrary to law or public policy, then the parties want the court to interpret this agreement as follows: (A) (B) (C) (D) by modifying the provision to the minimum necessary to make it enforceable or, if that modification is not permitted by law, by disregarding the provision; by holding that the rest of the agreement will remain in effect as written; by holding that the provision will remain as written in any circumstances other than those in which the provision is held to be unenforceable; and by holding the entire agreement unenforceable if modifying or disregarding the unenforceable provision would result in the failure of an essential purpose of this agreement. 4.9 Interpretation. This agreement is to be interpreted and applied in accordance with California law, except that that the rule of interpretation in California Civil Code section 1654 will not apply. Exhibits A, B, and C are part of this agreement. 4.10 Waiver. A party s failure to insist on strict performance of this agreement or to exercise any right or remedy upon breach of this agreement will not constitute a waiver of the performance, right, or remedy. A party s waiver of another party s breach of any provision in this agreement will not constitute a continuing waiver or a waiver of any subsequent breach of the same or any other provision. A waiver is binding only if set forth in a writing signed by the waiving party. 4.11 Counterparts. The parties may sign this agreement in counterparts, each of which will be considered an original, but all of which will constitute the same agreement. B 9 Resolution 2017-0136 April 18, 2017 Page 17 of 31
4.12 Successors and Assigns. This agreement is binding upon the heirs, assigns and successors in interest of the parties. The Developer may not assign its rights or obligations under this agreement without the City s prior written consent except to successors in interest to the property within the Assessment District. 4.13 Remedies in General. (A) (B) The City would not have entered into this agreement if it were to be liable in damages under or with respect to this agreement, other than for the payment to the Developer of any (1) moneys owing to the Developer under this agreement or (2) moneys paid by the Developer under this agreement that are misappropriated or improperly obtained, withheld, or applied by the City. In general, the parties may pursue any remedy at law or equity available for the breach of this agreement, except that (1) the City will not be liable in damages to the Developer or to any assignee or transferee of the Developer other than for the payments to the Developer specified in section 4.13(A); and (2) except as provided in clause (1) of this section 4.13(B), the Developer covenants not to sue for or claim any damages for any alleged breach of, or dispute that arises out of, this agreement. 4.14 Effective Date. This agreement is effective on the date both parties have signed it, as indicated by the dates in the signature blocks below. 4.15 Integration and modification. This agreement sets forth the parties entire understanding regarding the matters set forth above and is intended to be their final, complete, and exclusive expression of those matters. It supersedes all prior or contemporaneous agreements, representations, and negotiations written, oral, express, or implied and may be modified only by another written agreement signed by both parties. (Signature Page Follows) B 10 Resolution 2017-0136 April 18, 2017 Page 18 of 31
City of Sacramento [Developer s Name] By: Signature Print Name Title Date:, 20 By: Signature Print Name Title Date:, 20 Attest Sacramento City Clerk By: Signature Approved as to Form Sacramento City Attorney Approved as to Form [Law Firm s Name] By: [Name] Attorneys for [Developer s Name] By: Senior Deputy City Attorney B 11 Resolution 2017-0136 April 18, 2017 Page 19 of 31
EXHIBIT A TO THE ACQUISITION AGREEMENT DESCRIPTION OF ACQUISITION IMPROVEMENTS AND BUDGETED AMOUNTS ACQUISITION IMPROVEMENTS BUDGETED AMOUNTS 1. $ 2. 3. 4. C-12 Resolution 2017-0136 April 18, 2017 Page 20 of 31
EXHIBIT B TO THE ACQUISITION AGREEMENT FORM OF SCIP REQUISITION To: Re: BLX Group LLC SCIP Program Administrator 777 S. Figueroa St., Suite 3200 Los Angeles, California 90017 Attention: Vo Nguyen Fax: 213 612 2499 Statewide Community Infrastructure Program The undersigned, a duly authorized officer of the CITY OF SACRAMENTO (the City ), hereby requests a withdrawal from the Developer Acquisition Account, as follows: Request Date: Name of Developer: Withdrawal Amount: [Insert Date of Request] [Developer] [Insert Acquisition Price] Acquisition Improvements: [Insert Description of Acquisition Improvement(s) from Ex. A] Payment Instructions: [Insert Wire Instructions or Payment Address for Developer] The undersigned hereby certifies as follows: 1. The withdrawal is being made in accordance with a permitted use of the monies under the Acquisition Agreement, and the withdrawal is not being made for the purpose of reinvestment. 2. None of the items for which payment is requested has been reimbursed previously from other sources of funds. 3. If the amount withdrawn is greater than the funds held in the Developer Acquisition Account, the SCIP Program Administrator is authorized to amend the amount requested to be equal to the amount of those funds. 4. To the extent the withdrawal is being made before the date bonds have been issued on behalf of SCIP, this withdrawal form serves as the City s declaration of official intent, under Treasury Regulations 1.150 2, to reimburse itself with respect expenditures made from the Developer Acquisition Account listed above in the amount listed above. CITY OF SACRAMENTO By: Title: C-13 Resolution 2017-0136 April 18, 2017 Page 21 of 31
EXHIBIT C TO THE ACQUISITION AGREEMENT Guidelines for Special District Acquisition Projects City of Sacramento Departments of Utilities and Public Works Introduction The City of Sacramento Policies and Procedures Manual for Special Assessment and Community Facilities Districts provides for the use of acquisition districts. Listed in this exhibit are guidelines that must be followed to qualify improvement project costs for reimbursement by the contemplated community facilities district (the District ). Reimbursement is dependent upon the City s actual receipt of special tax proceeds or proceeds from special tax bonds (the Bonds ) if the Bonds are issued and upon the legality of reimbursement for individual expense items under applicable law. 1.0 Definitions 1.1 Acquisition Agreement. An agreement between the Developer and the City allowing the District to acquire certain public facilities from the Developer. 1.2 Acquisition Facility or Acquisition Facilities. Those public facility improvements described in Acquisition Agreements or a Hearing Report, as applicable, filed in the District proceedings. 1.3 Acquisition Price. The amount the District is to pay for the Acquisition Facilities in accordance with the Acquisition Agreement. 1.4 Advertisement. A published public notice that solicits bids for a project in accordance with these guidelines and applicable law. 1.5 Bid Documents. Plans, Specifications, and proposal documents that are prepared by, or under the supervision of, the Design Engineer; conform with policies, rules, regulations, and laws applicable to the City; and are suitable for the solicitation and submittal of bids by contractors for construction of an Acquisition Facility. 1.6 City Engineer. The Engineering Division Manager of the City s Department of Public Works or his or her designee. 1.7 Construction Security. Performance bonds and labor and material payment bonds or other security, provided by the Contractor to the Developer in a form assignable to the City, which guarantee that the Contractor will meet all contractual obligations. 1.8 Contractor. A person or entity that is under contract to construct the Acquisition Facility and who possesses the appropriate California contractor s license or licenses for the work. 1.9 Design Engineer. A California licensed professional civil engineer the Developer has retained for the purpose of designing and supervising construction of the Acquisition Facilities. C-14 Resolution 2017-0136 April 18, 2017 Page 22 of 31
1.10 The Developer. The person or entity identified as the Developer in the Acquisition Agreement to which these guidelines are attached as an exhibit. 1.11 District Administrator. The Public Improvement Financing Unit of the City s Department of Finance, or its successor. 1.12 Engineer s Estimate. A cost estimate for the Acquisition Facilities prepared by the Design Engineer and approved by the City Engineer. 1.13 Facility. An element or increment of an entire Acquisition Facility. A Facility is eligible for acquisition when it is complete and available for public benefit (i.e., when it is a functional, usable unit of infrastructure capable of being incorporated into the City s infrastructure system). 1.14 Hearing Report. The report required by the Mello Roos Act of 1982 that identifies the boundaries of the District, the specific improvements to be financed by the District and the maximum special tax rate each property owner will be responsible for paying in any given tax year. 1.15 Plans. Final bid drawings prepared by the Design Engineer and its consultants and approved by the City for construction of the Acquisition Facilities. 1.16 Specifications. Documents prepared by the Design Engineer or its consultants that describe in detail for construction contract purposes the material and workmanship required to complete an Acquisition Facility. 2.0 Pre Advertisement Procedures 2.1 The Developer shall submit project schedules to the City Engineer. 2.2 As and if required, the City shall endeavor to obtain necessary interests in real property, but only if the Developer has provided full and complete funding and has signed a funding agreement for this purpose in a form acceptable to the City Attorney. The Developer shall negotiate all utility relocations. 2.3 The Design Engineer shall prepare and submit Plans and Specifications to the City Engineer for review and approval. The Plans must indicate those portions of the Improvements that are Acquisition Facilities qualified for reimbursement from the District. These indications are not to be construed as the City s approval or disapproval of eligibility for cost reimbursement. The City Engineer and the District Administrator will jointly determine, independently of the Plans and the City Engineer s approval of the Plans, whether an Acquisition Facility qualifies for reimbursement through the District. 2.4 The Developer shall pay City plan check fees and inspection fees (normal and specific) in accordance with normal City procedures. C-15 Resolution 2017-0136 April 18, 2017 Page 23 of 31
2.5 The Developer shall provide Construction Security in the same manner as is provided for normal City public works projects. 2.6 The Design Engineer shall prepare the Bid Documents for the Acquisition Facilities and shall submit the documents to the City Engineer for review, and the City Engineer shall, in writing, either approve or disapprove the Bid Documents. The Bid Documents must be in conformance with all ordinances, laws, policies, rules, and regulations applicable to the City, including but not limited to the following: (a) (b) (c) (d) (e) Compliance with all applicable City and State of California requirements for public works contracts, including but not limited to Sacramento City Code sections 3.60.180 (concerning prevailing wages, hours of work, etc.) and 3.60.190 (concerning apprentices). The invitation to bidders must be publicly advertised. The Developer must submit to the City Engineer, in a form acceptable to the City, a noncollusion affidavit signed by an officer or manager of Developer. The Bid Documents must comply with all other applicable City requirements. The Developer must sign a certificate affirming compliance with all of the requirements set forth in this section 2.6. 2.7 The City Engineer shall review the Bid Documents to determine whether they meet the following requirements: (a) (b) (c) The Engineer s Estimate is reasonable and has been approved by the City Engineer. The bidding procedures are consistent with advertising and bid opening procedures for public contracts, and the bid forms clearly describe each bid item and are in a format that is substantially similar to the format of the cost breakdown in the Acquisition Agreements or Hearing Report, as applicable. The construction contract requires the Contractor and its subcontractors to comply with Sacramento City Code sections 3.60.180 (concerning prevailing wages, hours of work, etc.) and 3.60.190 (concerning apprentices). (d) (e) (f) The Bid Documents include a non collusion affidavit in a form acceptable to the City. The number of allotted working days specified in the contract documents is reasonable for the proposed work. Any liquidated damage clauses are consistent with City policy. C-16 Resolution 2017-0136 April 18, 2017 Page 24 of 31
2.8 The Developer may be excused from complying with some or all of this section 2.0, other than sections 2.6(a) and 2.7(c), if the City Council determines, by a two thirds vote, that excusing compliance is in the best interests of the City. 3.0 Advertisement and Bid Opening Procedures 3.1 The Developer shall provide the City Engineer with complete copy of all final Bid Documents, including any addenda, and may advertise the project only after the City has approved the Plans and the City Engineer has approved the final Bid Documents. 3.2 The Developer must advertise the project in a newspaper of general circulation published within the County of Sacramento, as follows: for a daily newspaper, the Advertisement must be published at least 10 consecutive times; and for a weekly newspaper, the Advertisement must be published at least two consecutive times. The Developer may use other advertising procedures in addition to the procedures specified in this section 3.2. 3.3 The Developer shall conduct a bid opening at a location open to the public. The bids must be sealed, must be submitted on or before the specified date and time, and must be publicly opened with each bidder s name and total bid announced at the opening in the presence of all interested parties. 3.4 The Developer shall notify the City Engineer at least 10 days before the bid opening date and location and shall provide the City Engineer with a copy of the Advertisement or Advertisements. 3.5 The City Engineer or the City Engineer s representative shall attend each pre bid meeting (if any) and the public bid opening. The Developer shall have a sign in sheet for attendees if a pre bid meeting is held and shall provide a copy of the sheet to the City. 3.6 If the Developer requests, the City may, in the City Engineer s sole discretion, advertise the project on the Developer s behalf using the City s procedures for advertising contracts for public projects. 3.7 The Developer may be excused from complying with this section 3.0, in whole or part, if the City Council determines, by a two thirds vote, that excusing compliance is in the best interests of the City. 4.0 Construction Contract Award 4.1 The Developer shall provide the City Engineer with a summary of all bids and a copy of the lowest bid proposal submitted, together with a written evaluation of the bids and a recommendation for award. The Developer shall provide the following information with the evaluation and recommendation, in the form of a certificate stating the following: (a) (b) That there are no pending disputes over the bidding procedures. That all bidders received the same set of Bid Documents and all of the addenda issued. C-17 Resolution 2017-0136 April 18, 2017 Page 25 of 31