EXHIBIT C
FORM OF ACQUISITION AND FEE FUNDING AGREEMENT
_____________________
CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY
STATEWIDE COMMUNITY INFRASTRUCTURE PROGRAM
ACQUISITION AND FEE FUNDING AGREEMENT
BY AND BETWEEN
CITY OF NAPA
AND
NAPA REDEVELOPMENT PARTNERS, LLC
Dated as of _______, 20__
ACQUISITION AND FEE FUNDING AGREEMENT
Recitals
A. The parties to this Acquisition and Fee Funding Agreement (the “Agreement”) are the CITY OF NAPA, (the “City”), and NAPA REDEVELOPMENT PARTNERS, LLC, a Delaware limited liability company (the “Developer”).
B. The effective date of this Agreement is ________, 20__.
C. The Developer has applied to the California Statewide Communities Development Authority (the “Authority”) for the financing of, among other things, public capital improvements to be owned by the City (collectively, the “Acquisition Improvements”) and the Developer’s payment to the City of development fees (collectively, the “Fees”) through the Authority’s Statewide Community Infrastructure Program (“SCIP”). As set forth herein, prior to the Authority’s approval or issuance of tax-exempt bonds that are proposed to finance Fees, the Fees to be financed on a tax-exempt basis will be specifically identified by Developer and City and Approved by the Authorized Officer of the City. Upon acquisition by the City, the Acquisition Improvements will be owned and operated by the City, and the financing is to be accomplished through a community facilities district which will be administered by the Authority under and pursuant to the Mello-Roos Community Facilities Act of 1982 – California Government Code Sections 53311 and following (the “Act”). On [__________], 20__, the City adopted Resolution No. [______] authorizing the Authority to form a community facilities district (the “Community Facilities District”) within the territorial limits of the City to finance, among other things, the Acquisition Improvements and Fees. On [__________], 20__, the Authority formed the Community Facilities District and, on the same date, a landowner election was conducted in which all of the votes were cast unanimously in favor of conferring the Community Facilities District authority on the Authority Commission. The Community Facilities District initially comprises a single Improvement Area (“Improvement Area No. 1”). Property has been identified in the formation proceedings as a future annexation area (“Future Annexation Area”), which may become part of the Community Facilities District as part of Improvement Area No. 1 or a separate Improvement Area (a “Future Improvement Area”) upon annexation by the property owners of the Future Annexation Area being annexed. This Agreement shall apply to the Community Facilities District as a whole, including Improvement Area No. 1 and all Future Improvement Areas (herein, an “Improvement Area” or “Improvement Areas”).
D. Under SCIP, the Authority intends to levy special taxes in each Improvement Area of the Community Facilities District, and to issue taxable and taxexempt bonds, in one or more series, to fund, among other things, all or a portion of the costs of the Acquisition Improvements (including the funding of Fees for Acquisition Improvements). The portion of the proceeds of the special taxes and bonds from all Improvement Areas of the Community Facilities District that are allocable to the cost of the Acquisition Improvements (including the Fees for Acquisition Improvements), together with interest earned thereon, is referred to herein as the “Available Amount”.
E. The Authority will provide financing for the acquisition by the City of the Acquisition Improvements and the payment of the Acquisition Price (as defined herein) of the Acquisition Improvements (including the funding of Fees for Acquisition Improvements), from the Available Amount. Attached hereto as Exhibit A is a description of the Acquisition Improvements and Fees which may be eligible for funding from the Available Amount, which includes authorized discrete and usable portions, if any, of the public capital improvements, pursuant to Section 53313.51 of the Act.
F. The parties anticipate that, upon completion of an Acquisition Improvement constructed by the Developer, and subject to the terms and conditions of this Agreement, the City will acquire the completed Acquisition Improvement.
G. Any and 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 funds whatsoever of the City shall be obligated therefor under any circumstances.
H. Attached to this Agreement are Exhibit A (Description of Acquisition Improvements, Fees and Estimated Amounts), Exhibit B (Disbursement Request Form), and Exhibit C (Requirements on Developer for Acquisition Improvements), all of which are incorporated into this Agreement for all purposes.
Agreement
DEFINITIONS; COMMUNITY FACILITIES DISTRICT FORMATION AND
FINANCING PLAN
Definitions. As used herein, the following capitalized terms shall have the meanings ascribed to them below:
“Acceptable Title” means free and clear of all monetary liens, encumbrances, assessments, whether any such item is recorded or unrecorded, and taxes, except those items which are reasonably determined by the City Engineer not to interfere with the intended use and therefore are not required to be cleared from the title. “Acquisition and Construction Fund” means any fund established by the Authority pursuant to the Resolution and Section 1.03 hereof for the purpose of paying the Acquisition Price of the Acquisition Improvements and which fund may be held as a subaccount within a fund established under the Authority Trust Agreement and may be commingled with acquisition and construction fund monies available for other public capital improvements. “Acquisition Improvement” means a public capital improvement described in Exhibit A hereto, which includes public capital improvements to be constructed by the City using Fees. “Acquisition Price” means the total amount eligible to be paid to the Developer for acquisition of an Acquisition Improvement as provided in Section 2.03 not to exceed the Actual Cost of the Acquisition Improvement. “Act” has the meaning ascribed thereto in Recital C.
“Actual Cost” means the total cost of an Acquisition Improvement, as documented by the Developer to the satisfaction of the City and as certified by the City Engineer in an Actual Cost Certificate including, without limitation, (a) the Developer’s cost of constructing such Acquisition Improvement including grading, labor, material and equipment costs, (b) the Developer’s cost of designing and engineering the Acquisition Improvement, preparing the plans and specifications and bid documents for such Acquisition Improvement, and the costs of inspection, materials testing and construction staking for such Acquisition Improvement, (c) the Developer’s cost of any performance, payment and maintenance bonds and insurance, including title insurance, required hereby for such Acquisition Improvement, (d) the Developer’s cost of any real property or interest therein that is either necessary for the construction of such Acquisition Improvement (e.g., temporary construction easements, haul roads, etc.), or is required to be conveyed with such Acquisition Improvement in order to convey Acceptable Title thereto to the City or its designee, (e) the Developer’s cost of environmental evaluation or mitigation required for such Acquisition Improvement, (f) the amount of any fees actually paid by the Developer to governmental agencies in order to obtain permits, licenses or other necessary governmental approvals and reviews for such Acquisition Improvement, (g) the Developer’s cost for construction and project management, administration and supervision services for such Acquisition Improvement, (h) the Developer’s cost for professional services related to such Acquisition Improvement, including engineering, accounting, legal, financial, appraisal and similar professional services, (i) the costs of construction financing incurred by the Developer with respect to such Acquisition Improvement, and (j) the actual, reasonable cost of compiling, reviewing, and preparing payment requests and the materials required to submit payments requests, paid by the Developer to companies that the Developer has engaged and to companies retained by the Authority or the City to evaluate payment requests. “Actual Cost Certificate” means a certificate prepared by the Developer detailing the Actual Cost of an Acquisition Improvement, or an Eligible Portion thereof, to be acquired hereunder, as may be revised by the City Engineer pursuant to Section 2.03. “Agreement” means this Acquisition and Fee Funding Agreement, dated as of [_______________], 20__. "Approved" or "Approval" means the written consent of the Authorized Officer to approve the financing of identified Fees with the proceeds of tax-exempt Bonds, which consent shall be provided if the Authorized Officer can reasonably make the certifications required by the Internal Revenue Code for the issuance of tax-exempt Bonds. “Authority” means the California Statewide Communities Development Authority. “Authority Trust Agreement” means one or more Trust Agreements entered into by the Authority and an Authority Trustee in connection with the issuance of Bonds. “Authority Trustee” means one or more financial institution identified as trustee in an Authority Trust Agreement. “Authorized Officer” has the meaning assigned to the term in Section 17 of the Resolution. “Available Amount” shall have the meaning assigned to the term in Recital D. “Bonds” means bonds or other indebtedness issued by the Authority in each Improvement Area as tax-exempt or taxable bonds or other indebtedness, in one or more series, that is to be repaid with applicable Special Taxes. “City” means the City of Napa.
“City Engineer” means the Engineer of the City or his/her designee who will be responsible for administering the acquisition of the Acquisition Improvements hereunder. “Code” means the Government Code of the State of California. “Community Facilities District” shall have the meaning assigned to the term in Recital C. “Developer” means Napa Redevelopment Partners, LLC, a Delaware limited liability company, its successors and assigns. “Disbursement Request Form” means a requisition for payment of funds from the Acquisition and Construction Fund for an Acquisition Improvement, or an Eligible Portion thereof, and for funding Fees in substantially the form contained in Exhibit B hereto. “Eligible Portion” shall have the meaning ascribed to it in Section 2.03 below. “Fee” means a capacity charge or development impact fee described on Exhibit A hereto that is eligible for funding through the Community Facilities District. "Future Annexation Area" has the meaning assigned the term in Recital C. "Future Improvement Area" has the meaning assigned the term in Recital C. "Improvement Area" has the meaning assigned the term in Recital C. "Improvement Area No. 1" has the meaning assigned the term in Recital C. "Improvement Areas" has the meaning assigned the term in Recital C. “Installment Payment” means an amount equal to ninety percent (90%) of the Actual Cost of an Eligible Portion. “Project” means the Developer’s development of the property in the Community Facilities District, including the design and construction of the Acquisition Improvements and the other public and private improvements to be constructed by the Developer within the Community Facilities District. “Resolution” means Resolution No. [_______], adopted by the City Council of the City on [_____________], 20__ and titled “A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NAPA (“CITY”), STATE OF CALIFORNIA, (1) AUTHORIZING THE CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY (“AUTHORITY”) TO FORM A COMMUNITY FACILITIES DISTRICT WITHIN THE TERRITORIAL LIMITS OF THE CITY TO FINANCE CERTAIN PUBLIC IMPROVEMENTS; (2) SETTING FORTH AND APPROVING CERTAIN TERMS AND CONDITIONS OF THE COMMUNITY FACILITIES DISTRICT FINANCING; (3) APPROVING AN ACQUISITION AND FEE FUNDING AGREEMENT BETWEEN THE CITY AND NAPA REDEVELOPMENT PARTNERS, LLC; (4) AUTHORIZING CITY STAFF TO COOPERATE WITH THE AUTHORITY AND ITS CONSULTANTS IN CONNECTION THEREWITH; AND (5) DETERMINING THAT THE ACTIONS AUTHORIZED BY THIS RESOLUTION WERE ADEQUATELY ANALYZED BY A PREVIOUS CEQA ACTION.” “Special Taxes” means annual special taxes, and prepayments thereof, authorized by the Community Facilities District to be levied by the Commission of the Authority within each Improvement Area. “Title Documents” means, for each Acquisition Improvement constructed by the Developer and acquired hereunder, a grant deed or similar instrument necessary to transfer title to any real property or interests therein (including easements), or an irrevocable offer of dedication of such real property with interests therein necessary to the operation, maintenance, rehabilitation and improvement by the City of the Acquisition Improvement (including, if necessary, easements for ingress and egress) and a bill of sale or similar instrument evidencing transfer of title to the Acquisition Improvement (other than said real property interests) to the City, where applicable.
Establishment of Community Facilities District. Developer has requested the City to permit the Authority to provide for financing of Acquisition Improvements and the funding of Fees through the establishment and authorization of the Community Facilities District and the City agreed by its adoption of the Resolution. The Community Facilities District, Improvement Area No. 1, and the Future Annexation Area were established by the Authority on [_________], 20__, and through the successful landowner election held that same day, the Commission of the Authority is authorized to levy the Special Taxes and to issue the Bonds in each Improvement Area to finance Acquisition Improvements and Fees, subject to the provisions herein regarding Fees financed with tax-exempt Bonds. Developer and the City agree to reasonably cooperate with one another and with the Authority in the completion of the financing through the issuance of the Bonds in one or more series in each Improvement Area.
Deposit and Use of Available Amount.
Prior to the issuance of the first series of Bonds for an Improvement Area, Special Taxes collected by the Authority in such Improvement Area shall be deposited in the Acquisition and Construction Fund established by the Resolution, and may be disbursed to pay the Acquisition Price of Acquisition Improvements (including the funding of Fees for Acquisition Improvements) in accordance with Article II of this Agreement. All funds in the Acquisition and Construction Fund shall be considered a portion of the Available Amount, and upon the issuance of the first series of Bonds for such Improvement Area, the Acquisition and Construction Fund shall be transferred to the applicable Authority Trustee to be held in accordance with the applicable Authority Trust Agreement. The foregoing process will be repeated separately for each Improvement Area.
Upon the issuance of the first series of Bonds for an Improvement Area, the Authority will cause the applicable Authority Trustee to establish and maintain the Acquisition and Construction Fund for the purpose of holding all funds for Acquisition Improvements (including the funding of Fees for Acquisition Improvements). All earnings on amounts in the Acquisition and Construction Fund shall remain in the Acquisition and Construction Fund for use as provided herein and pursuant to the applicable Authority Trust Agreement. Money in the Acquisition and Construction Fund shall be available to respond to delivery of a Disbursement Request Form and to be paid to the Developer or its designee to pay the Acquisition Price of an Acquisition Improvement, as specified in Article II hereof. For the Community Facilities District as a whole, including all Improvement Areas, upon completion of all Acquisition Improvements and disbursement of all Fees and other authorized capital improvements or capital fees eligible for payment from the Acquisition and Construction Fund, if any, and the payment of all costs thereof, any remaining funds in the Acquisition and Construction Fund (less any amount determined by the City as necessary to reserve for claims against the account) (i) shall be applied to pay the costs of any additional public improvements eligible for acquisition with respect to the Project as approved by the Authority and, to the extent not so used, (ii) shall be applied by the Authority to call Bonds or to reduce Special Taxes as the Authority shall determine.
No City Liability; City Discretion; No Effect on Other Agreements. In no event shall any actual or alleged act by the City or any actual or alleged omission or failure to act by the City with respect to SCIP subject the City to monetary liability therefor, including without limitation the Authorized Officer’s failure to make the findings required to finance any specific Fee through tax-exempt Bonds. Further, nothing in this Agreement shall be construed as affecting the Developer’s or the City’s duty to perform their respective obligations under any other agreements, public improvement standards, land use regulations or subdivision requirements related to the Project, which obligations are and shall remain independent of the Developer’s and the City’s rights and obligations under this Agreement.
DESIGN, CONSTRUCTION AND ACQUISITION OF ACQUISITION IMPROVEMENTS; FEE PAYMENTS Letting and Administering Design Contracts. The Developer has awarded and administered, or will award and administer, engineering design contracts for the specific Acquisition Improvements to be acquired from Developer. All eligible expenditures of the Developer for design engineering and related costs in connection with such Acquisition Improvements (whether as an advance to the City or directly to the design consultant) shall be reimbursed at the time of acquisition of the Acquisition Improvements. The Developer shall be entitled to reimbursement for any design costs of such Acquisition Improvements only out of the Acquisition Price as provided in Section 2.03 and shall not be entitled to any payment for design costs independent of the acquisition of Acquisition Improvements.
Letting and Administration of Construction Contracts; Indemnification. State law requires that all Acquisition Improvements not completed prior to the formation of the Community Facilities District shall be constructed as if they were constructed under the direction and supervision, or under the authority, of the City. In order to assure compliance with those provisions, except for any contracts entered into prior to the date hereof, Developer agrees to comply with the requirements set forth in Exhibit C hereto with respect to the construction of the Acquisition Improvements including but not limited to the specified public contracting requirements. The Developer agrees that all the contracts shall call for payment of prevailing wages as required by the Labor Code of the State of California. The Developer’s indemnification obligation set forth in Section 3.01 of this Agreement shall also apply to any alleged failure to comply with the requirements of this Section, and/or applicable State laws regarding prevailing wages.
Sale of Acquisition Improvements. The Developer agrees to sell to the City each Acquisition Improvement to be constructed by Developer (including any rights-of-way or other easements necessary for the Acquisition Improvements, to the extent not already publicly owned), when the Acquisition Improvement is completed to the satisfaction of the City for an amount not to exceed the Actual Cost of the Acquisition Improvement; provided, however, that such Actual Cost shall be payable only from Available Amounts as such amounts become available over time from any Available Amounts. Exhibit A, attached hereto and incorporated herein, contains a list of the Acquisition Improvements that may be eligible for financing by the Community Facilities District, subject to the provisions herein regarding financing Fees on a tax-exempt basis. Portions of an Acquisition Improvement eligible for Installment Payments prior to completion of the entire Acquisition Improvement are described as eligible, discrete and usable portions in Exhibit A (each, an “Eligible Portion”). At the time of completion of each Acquisition Improvement, or Eligible Portion thereof, the Developer shall deliver to the City Engineer a written request for acquisition, accompanied by an Actual Cost Certificate, and by executed Title Documents for the transfer of the Acquisition Improvement where necessary. In the event that the City Engineer finds that the supporting paperwork submitted by the Developer fails to demonstrate the required relationship between the subject Actual Cost and eligible work, the City Engineer shall advise the Developer that the determination of the Actual Cost (or the ineligible portion thereof) has been disallowed 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 the determination shall be final and conclusive.
Certain soft costs for Acquisition Improvements, such as civil engineering, may have been incurred pursuant to single contracts that include work relating also to the private portions of the Project. In those instances, the total costs under such contracts will be allocated to each Acquisition Improvement as approved by the City Engineer. Where a specific contract has been awarded for design or engineering work relating solely to an Acquisition Improvement, one hundred percent (100%) of the costs under the contract will be allocated to that Acquisition Improvement. Amounts allocated to an Acquisition Improvement will be further allocated among the Eligible Portions of that Acquisition Improvement, if any, in the same proportion as the amount to be reimbursed for hard costs for each Eligible Portion bears to the amount to be reimbursed for hard costs for the entire Acquisition Improvement. Costs will be allocated to each Acquisition Improvement as approved by the City Engineer. The costs of certain environmental mitigation required to mitigate impacts of the public and private portions of the Project will be allocated to each Acquisition Improvement as approved by the City Engineer.
Conditions Precedent to Payment of Acquisition Price. Payment to the Developer or its designee of the Acquisition Price for an Acquisition Improvement from the Acquisition and Construction Fund shall in every case be conditioned first upon the determination of the City Engineer, pursuant to Section 2.03, that the Acquisition Improvement satisfies all City regulations and ordinances and is otherwise complete and ready for acceptance by the City, and shall be further conditioned upon satisfaction of the following additional conditions precedent:
The Developer shall have provided the City with lien releases or other similar documentation satisfactory to the City Engineer as evidence that none of the property (including any rights-of-way or other easements necessary for the operation and maintenance of the Acquisition Improvement, to the extent not already publicly owned) comprising the Acquisition Improvement, and the property which is subject to the special taxes of the Community Facilities District, is not subject to any prospective mechanics lien claim respecting the Acquisition Improvements.
The Developer shall not be delinquent in the payment of any general property taxes and special taxes of the Community Facilities District on property owned by the Developer or under option to the Developer within the Community Facilities District.
The Developer shall certify that it is not in default with respect to any loan secured by any interest in the Project.
The Developer shall 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 Improvement is situated. All such Title Documents shall be in a form acceptable to the City and shall convey Acceptable Title. The Developer shall provide a policy of title insurance as of the date of transfer in a form acceptable to the City Engineer and the City Attorney insuring the City as to the interests acquired in connection with the acquisition of any interest for which such a policy of title insurance is not required by another agreement between the City and the Developer. Each title insurance policy required hereunder shall be in the amount equal to the Acquisition Price. The amount paid to the Developer or its designee upon satisfaction of the foregoing conditions precedent shall be the Acquisition Price less all Installment Payments paid previously with respect to the Acquisition Improvement.
Payment for Eligible Portions. The Developer may submit an Actual Cost Certificate to the City Engineer with respect to any Eligible Portion. Payment to the Developer or its designee from the Acquisition and Construction Fund of an Installment Payment with respect to such Eligible Portion shall in every case be conditioned first upon the determination of the City Engineer, pursuant to Section 2.03, that the Eligible Portion has been completed in accordance with the applicable plans and specifications and that the Eligible Portion satisfies all City regulations and ordinances and is otherwise complete and, where appropriate, is ready for acceptance by the City, and shall be further conditioned upon satisfaction of the following additional conditions precedent:
The Developer shall have provided the City with lien releases or other similar documentation satisfactory to the City Engineer as evidence that the property (including any rights-of-way or other easements necessary for the operation and maintenance of the Eligible Portion, to the extent not already owned by the City) comprising the Eligible Portion is not subject to any prospective mechanics lien claim respecting the Eligible Portion.
The Developer shall not be delinquent in the payment of any general property taxes and special taxes of the Community Facilities District on property owned by the Developer or under option to the Developer within the Community Facilities District.
The Developer shall 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 Eligible Portion is situated. All such Title Documents shall be in a form acceptable to the City Engineer and shall be sufficient, upon completion of the Acquisition Improvement of which the Eligible Portion is a part, to convey Acceptable Title.
Payment and performance bonds, from a bonding company with an A.M. Best rating of at least “A-” or its equivalent, applying to plans and specifications for the Acquisition Improvement approved by the City, shall be in place to secure completion of the Acquisition Improvement of which the Eligible Portion is a part.
Disbursement Request Form. Upon a determination by the City Engineer to pay the Acquisition Price of an Acquisition Improvement pursuant to Section 2.04 or to pay an Installment Payment for an Eligible Portion pursuant to Section 2.05, the City Engineer shall cause a Disbursement Request Form substantially in the form attached hereto as Exhibit B to be submitted to the Authority Trustee, and the Authority Trustee shall make payment directly to the Developer or its designee of the amount pursuant to the Authority Trust Agreement. The City and the Developer acknowledge and agree that the Authority Trustee shall make payment strictly in accordance with the Disbursement Request Form and shall not be required to determine whether or not the Acquisition Improvement or Eligible Portion has been completed or what the Actual Costs may be with respect to the Acquisition Improvement or Eligible Portion. The Authority Trustee shall be entitled to rely on the executed Disbursement Request Form on its face without any further duty of investigation.
In the event that the Actual Cost of an Acquisition Improvement or the Installment Payment for an Eligible Portion is in excess of the Available Amount, the Authority Trustee shall withdraw all funds remaining in the Acquisition and Construction Fund and shall transfer those amounts to the Developer or its designee. The unpaid portion of the Actual Cost shall be paid in one or more installments from additional Available Amounts that may subsequently be deposited in the Acquisition and Construction Fund from a subsequent issuance of Bonds from any Improvement Area or from Special Tax revenues from any Improvement Area, if either of those occurs.
Development Fees.
Subject to the provisions set forth herein, including without limitation the Authorized Officer’s prior written Approval that the specific Fees are eligible for financing from tax-exempt Bonds as set forth herein, the Developer may elect to apply the proceeds of Bonds to reimburse the Developer for previously paid Fees. For Fees paid directly to the City by the Developer or a subsequent owner of property within the Community Facilities District (the “Landowner”), the Developer may submit a written request to the City to reimburse such paid Fees from the Available Amount. In such case, and subject to any applicable laws and regulations, including those limiting the use of tax exempt Bond proceeds, the City shall direct the Authority Trustee to disburse the amounts previously paid by the Landowner to the Developer from the Available Amount provided, if the Available Amount consists of tax exempt Bond proceeds, the City must either (i) transfer such amounts from the applicable Fee fund to the Authority Trustee for deposit in the Acquisition and Construction Fund for arbitrage and rebate tracking purposes or (ii) certify to the Authority Trustee that such amounts received from the Developer have been spent and deliver a certificate to the Authority Trustee in substantially the form attached hereto as Exhibit B. If the City has not taken either of the actions specified in numeral “i” or “ii” of the preceding sentence within 30 days of Developer’s written request, City shall within 10 days thereafter proceed with transferring funds pursuant to numeral “i” of the preceding sentence to allow Developer to receive its requested reimbursement without undue delay.
Subject to the provisions set forth herein, including without limitation the Authorized Officer’s prior written Approval that the specific Fees are eligible for financing from tax-exempt Bonds as set forth herein, the Developer may elect to fund all or a portion of Fees directly from the Available Amount to the extent of funds available. In such case, Developer shall submit a written request to City specifying (i) the description of the Fees and amount requested to be funded and (ii) the lot numbers (or other applicable description) for which the Fees are payable. The City shall thereafter submit a written request to the Authority Trustee to apply the requested portion of the Available Amount to the funding of such Fees and the City shall document the payment of such Fees in the records of the City and the application of a credit to the Landowner for the payment of such Fees, which payment shall be applied to the benefit of the Developer or subsequent Landowner when the Fees would otherwise be due and payable. Upon receipt of written direction to apply a portion of the Available Amount to the payment of Fees, the Authority Trustee shall set aside such amounts in one or more separate subaccounts of the Acquisition and Construction Fund, which, subject to subsection (c) below, shall be disbursed pursuant to a Disbursement Request Form substantially in the form attached hereto as Exhibit B to be submitted to the Authority Trustee. The Authority Trustee shall be entitled to rely on the executed Disbursement Request Form on its face without any further duty of investigation.
Proceeds derived from tax-exempt bonds shall be disbursed only when the City allocates the disbursement to an eligible expenditure under Section 103 of the Internal Revenue Code of 1986 and in accordance with the closing certificate of the City delivered in connection with such Bonds. Proceeds derived from taxable bonds shall be immediately disbursed without any limitations or certifications under Section 103 of the Internal Revenue Code of 1986.
Notwithstanding the foregoing, the Developer and the City acknowledge that proceeds of tax-exempt Bonds have certain limitations under applicable federal income tax laws. The City covenants to cooperate with the Authority and the Authority’s bond counsel in determining the Fees eligible for financing from such tax-exempt Bond proceeds and the application of the funds from the Acquisition and Construction Fund to credit payment of developer’s Fee obligations. To ensure compliance with these limitations on tax-exempt Bonds, prior to the Authority’s approval or issuance of tax-exempt Bonds that are proposed to finance Fees, the Fees to be financed on a tax-exempt basis shall be specifically identified by Developer and City and Approved by the Authorized Officer of the City.
The City and the Developer further acknowledge that not all Fees and not all components of the Fees may be eligible for application of tax-exempt Bond proceeds, and that nothing in this Agreement shall require the City or the Authority to provide for the issuance of tax-exempt Bonds for the funding of Fee obligations that are not Approved by the Authorized Officer of the City, as set forth above, or that are otherwise determined by the City or the Authority to be ineligible for tax-exempt funding.
Fees that are financed from Community Facilities District Special Taxes or from proceeds of taxable Bonds shall not require the prior written Approval of the Authorized Officer to be financed.
Limitation on Obligations. In no event shall the City or the Authority be required to pay the Developer or its designee more than the amounts held in the Acquisition and Construction Fund from time to time.
MISCELLANEOUS
Indemnification and Hold Harmless. The Developer hereby assumes the defense of, and indemnifies and saves harmless the City, the Authority and their respective officers, directors, employees and agents, including the Authority Trustee, from and against all actions, damages, claims, losses or expenses of every type and description to which they may be subjected or put, by reason of, or resulting from or alleged to have resulted from the acts or omissions of the Developer or its agents and employees arising out of any contract for the design, engineering and construction of the Acquisition Improvements entered into by the Developer or arising out of any alleged misstatements of a material fact or alleged omission of a material fact made in writing by the Developer, its officers, directors, employees or agents to the Authority’s underwriter, financial advisor, appraiser, district engineer or bond counsel or regarding the Developer, its proposed developments, its property ownership and its contractual arrangements contained in the official statement relating to the Authority financing (provided that the Developer shall have been furnished a copy of the official statement and shall not have objected thereto); and provided, further, that nothing in this Section 3.01 shall limit in any manner the City’s rights against any of the Developer’s architects, engineers, contractors or other consultants. Except as set forth in this Section 3.01, no provision of this Agreement shall in any way limit the extent of the responsibility of the Developer for payment of damages resulting from the operations of the Developer, its agents and employees. Nothing in this Section 3.01 shall be understood or construed to mean that the Developer agrees to indemnify the City, the Authority or any of their respective officers, directors, employees or agents, including the Authority Trustee, for any wrongful acts, willful misconduct, negligence or omissions to act of the Authority, the City, or its officers, employees, agents or any consultants or contractors, including the Authority Trustee. The Developer’s obligations under this Section 3.01 are expressly intended by the City and Developer to include, without limitation, any and all indemnification responsibilities incurred by the City under any of the terms and provisions of the Resolution.
Audit. The City shall have the right, during normal business hours and upon the giving of ten days’ written notice to the Developer, to review all books and records of the Developer pertaining to costs and expenses incurred by the Developer (for which the Developer seeks reimbursement pursuant to this Agreement) in constructing the Acquisition Improvements.
Cooperation. Subject to the terms and conditions of this Agreement, the City and the Developer agree to cooperate with respect to the completion of the financing of the Acquisition Improvements (including the funding of Fees for Acquisition Improvements) by the Authority through the levy of the Community Facilities District Special Taxes and issuance of Bonds. The City and the Developer agree to meet in good faith to resolve any differences on future matters which are not specifically covered by this Agreement.
General Standard of Reasonableness. Any provision of this Agreement which requires the consent, approval or acceptance of either party hereto or any of their respective employees, officers or agents shall 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 shall not apply to provisions in the Agreement which provide for decisions to be in the sole discretion of the party making the decision.
Third Party Beneficiaries. The Authority and its officers, employees, agents or any consultants or contractors are expressly deemed third party beneficiaries of this Agreement with respect to the provisions of Section 3.01. It is expressly agreed that, except for the Authority with respect to the provisions of Section 3.01, there are no third party beneficiaries of this Agreement, including without limitation any owners of Bonds, any of the City’s or the Developer’s contractors for the Acquisition Improvements and any of the City’s, the Authority's or the Developer’s agents and employees.
Conflict with Other Agreements. Nothing contained herein shall be construed as releasing the Developer or the City from any condition of development or requirement imposed by any other agreement between the City and the Developer, and, in the event of a conflicting provision, the other agreement shall prevail unless the conflicting provision is specifically waived or modified in writing by the City and the Developer.
Notices. All invoices for payment, reports, other communication and notices relating to this Agreement shall be mailed to:
If to the City:
City of Napa
Public Works Director
[Address to Come]
If to the Developer:
[Addressee]
[Address to Come]
Either party may change its address by giving notice in writing to the other party.
Severability. If any part of this Agreement is held to be illegal or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible.
Governing Law. This Agreement and any dispute arising hereunder shall be governed by and interpreted in accordance with the laws of the State of California.
Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such party’s right to insist and demand strict compliance by the other party with the terms of this Agreement.
Singular and Plural; Gender. As used herein, the singular of any word includes the plural, and terms in the masculine gender shall include the feminine.
Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original.
Successors and Assigns. This Agreement is binding upon the heirs, assigns and successors-in-interest of the parties hereto. The Developer may not assign its rights or obligations hereunder, except to successors-in-interest to the property within the Community Facilities District, without the prior written consent of the City.
Remedies in General. It is acknowledged by the parties that the City would not have entered into this Agreement if it were to be liable in damages under or with respect to this Agreement or the application thereof, other than for the payment to the Developer of any (i) moneys owed by the City to the Developer hereunder, or (ii) moneys paid by the Developer pursuant to the provisions hereof which are misappropriated or improperly obtained, withheld or applied by the City.
In general, each of the parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Agreement, except that the City shall not be liable in damages to the Developer, or to any assignee or transferee of the Developer other than for the actual amounts payable to the Developer specified in the preceding paragraph. Subject to the foregoing, the Developer covenants not to sue for or claim any damages for any alleged breach of, or dispute which arises out of, this Agreement. [THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year written above.
CITY OF NAPA
By _____________________________________
[Authorized Officer]
ATTEST:
City Clerk
By
NAPA REDEVELOPMENT PARTNERS, LLC,
a Delaware limited liability company
By _____________________________________
(Signature)
_____________________________________
(Print Name)
EXHIBIT A TO THE ACQUISITION AND FEE FUNDING AGREEMENT
DESCRIPTION OF ACQUISITION IMPROVEMENTS AND FEES THAT MAY BE ELIGIBLE FOR FUNDING, AND ESTIMATED AMOUNTS ACQUISITION IMPROVEMENTS(1)(2)
ESTIMATED AMOUNTS(4)
FEES(2)(3)
ESTIMATED AMOUNTS(4)
(1) Eligible Portions of each Acquisition Improvement may be identified upon the written request of the Developer and subject to the approval of the Authorized Officer. (2) This Exhibit A may be amended for any reason at any time by the mutual written agreement of the Developer and the Authorized Officer, without requiring approval by the City Council; provided that if the amendment is the addition of an Acquisition Improvement or Fee, that such Acquisition Improvement or Fee added to Exhibit A pursuant to such amendment is authorized to be financed by the Community Facilities District. (3) Prior to the Authority’s approval or issuance of any tax-exempt Bonds by the Community Facilities District, the Authorized Officer shall identify in writing for the Authority and Developer the specific Fees that are eligible for funding by tax-exempt Bonds issued by the Community Facilities District. (4) Estimated Amounts are shown for information only; amounts that may be financed under the Acquisition Agreement are the Actual Costs of the Acquisition Improvements and actual amounts of the Fees paid or due from the property. Fee amounts are subject to change by the City.
EXHIBIT B TO THE ACQUISITION AND FEE FUNDING AGREEMENT
DISBURSEMENT REQUEST FORM
To: Wilmington Trust, National Association
Attention: Jeanie Mar
Fax: 714-384-4153
Phone: 714-384-4151
Email: [email protected]
Re: CSCDA Community Facilities District No. _________
The undersigned, a duly authorized officer of the CITY OF NAPA hereby requests a withdrawal from the [name of Acquisition and Construction Fund and identification of Improvement Area], in accordance with that certain Acquisition and Fee Funding Agreement dated _____, 2022 by and between the City and the Developer (the “Acquisition Agreement”). All capitalized terms used herein have the meaning set forth in the Acquisition Agreement.
Request Date: [Insert Date of Request]
Name of Payee: __________________________________
Withdrawal Amount: [Insert Acquisition Price/Installment Payment/portion of Fee] Acquisition Improvements/Applicable Fees: [Insert Description of Acquisition Improvement(s)/Eligible Portion(s)/Fee(s) from Exhibit A] Payment Instructions: [Insert Wire Instructions or Payment Address for Developer or Developer’s designee as provided by the Developer or, for Fees, City or other payee] The undersigned hereby certifies as follows:
The Withdrawal is being made in accordance with a permitted use of the monies pursuant to the Acquisition and Fee Funding Agreement and the Withdrawal is not being made for the purpose of reinvestment.
None of the items for which payment is requested have been reimbursed previously from the Acquisition and Construction Fund.
If the Withdrawal Amount is greater than the funds held in the Acquisition and Construction Fund, the Authority Trustee is authorized to pay the amount of such funds and to pay remaining amount(s) as funds are subsequently deposited in the Acquisition and Construction Fund, should that occur.
CITY OF NAPA
By:
Title:
EXHIBIT C TO THE ACQUISITION AND FEE FUNDING AGREEMENT
REQUIREMENTS ON DEVELOPER FOR
ACQUISITION IMPROVEMENTS
With respect to construction contracts awarded after approval of the Agreement, bids for construction shall be solicited from at least three (3) qualified contractors, provided at least three (3) qualified contractors are reasonably available. The Developer may also directly solicit bids. The bid package may consist of preliminary plans and specifications.
The bidding response time shall be not less than ten (10) working days.
An authorized representative of the City shall be provided a copy of the tabulation of bid results upon request.
Contract(s) for the construction of the public Acquisition Improvements shall be awarded to the qualified contractor(s) submitting the lowest responsible bid(s), as determined by the Developer.
The contractor to whom a contract is awarded shall be required to pay not less than the prevailing rates of wages pursuant to Labor Code Sections 1770, 1773 and 1773.1. A current copy of applicable wage rates shall be on file in the Office of the City Clerk, as required by Labor Code Section 1773.2.
The Developer shall provide the City with certified payrolls.
All change orders individually in excess of $50,000 or cumulatively in excess of $100,000 shall be submitted to the City Engineer for review and approval.
The Developer agrees to comply with all applicable performance and payment bonding requirements of the City with respect to construction of the Acquisition Improvements.
The Developer shall maintain each and every Acquisition Improvement that the Developer has constructed, and each and every Eligible Portion thereof, in good and safe condition until the City Council of City has accepted such Acquisition Improvement or Eligible Portion, as applicable. On or before such City Council acceptance, Developer shall assign to the City all Developer’s rights in any warranties, guarantees, maintenance obligations or other evidence of contingent obligations of third persons with respect to such Acquisition Improvement or Eligible Portion. The Developer shall maintain or cause to be maintained each Acquisition Improvement that the Developer has constructed, or Eligible Portion thereof, as applicable, to be owned by the City (including the repair or replacement thereof) for a period of one year from such City Council acceptance, or alternatively, shall provide City with a bond reasonably acceptable in form and substance to the City Engineer for such period and for such purpose, to insure that defects, which appear within said period will be repaired, replaced or corrected by the Developer at its own cost and expense, to the satisfaction of the City Engineer. During such one-year period, the Developer shall commence to repair, replace or correct any such defects within thirty (30) days after written notice thereof by the City to the Developer, and shall complete such repairs, replacement or correction as soon as practicable.
As set forth in Section 2.02 of this Agreement, the Developer agrees to construct the Acquisition Improvements that it has constructed, and the Eligible Portions thereof, in compliance with this Agreement, which shall be deemed constructed as if they were constructed under the direction, supervision, and authority of the City, and to cooperate and comply with all reasonable written requests for nonproprietary information by the City related to all of Developer’s obligations under this Agreement.
C-1
4131-3807-3396.8
4131-3807-3396.8
C-9
4131-3807-3396.8
4131-3807-3396.8
OHS West:260226565.2
C-19
4131-3807-3396.8
4131-3807-3396.8