EXHIBIT D
FORM OF BOND CLOSING CERTIFICATE
The undersigned, an authorized officer of the City of Napa (the “Local Agency”), hereby certifies as follows:
1. Attached hereto as Exhibit A is a full, true and correct copy of Resolution No. ____ (the “Local Agency Resolution”) containing the terms and provisions of the joint community facilities agreement (the “Joint Community Facilities Agreement”) with the California Statewide Communities Development Authority (the “Authority”), duly adopted by the governing board of the Local Agency at a meeting thereof duly and regularly held on _________, 2022, of which meeting all of the members of the governing board had due notice and at which a majority of the members thereof were present, and the Local Agency Resolution has not been amended, modified or superseded in any manner since the date of its adoption, and the same is now in full force and effect.
2. The Local Agency has duly executed and delivered the Acquisition and Fee Funding Agreement, dated as of __________, 2022 (the “Acquisition and Fee Funding Agreement” and, together with the Joint Community Facilities Agreement, the “Local Agency Documents”) between the Local Agency and Napa Redevelopment Partners, LLC.
3. To the best knowledge of the undersigned, the adoption of the Local Agency Resolution and the execution of the Local Agency Documents, and compliance with the provisions thereof by the Local Agency do not violate any applicable law, regulation or judgment, order or decree of any court or any public or governmental agency or authority of the State of California or the federal government of the United States of America and do not conflict with, or result in the breach of any of the provisions of, or constitute a default under, any indenture, mortgage, deed of trust or other agreement or instrument to which the Local Agency is a party or by which it or its properties is or may be bound.
4. To the best knowledge of the undersigned, no order, consent, permission, approval, authorization, order or license of, or filing or registration with, any governmental authority is necessary in connection with the Local Agency Resolution or the Local Agency Documents, or the consummation of any transaction therein contemplated, except as have been obtained or made and as are in full force and effect.
5. To the best knowledge of the undersigned, the Local Agency is not in breach of or default under any applicable law or administrative regulation of the State of California or the United States or any applicable judgment or decree or any loan agreement, note, resolution, agreement or other instrument to which the Local Agency is a party or is otherwise subject, which breach or default would materially adversely affect the transactions contemplated by the Local Agency Resolution and the Local Agency Documents, and compliance with the provisions thereof will not conflict with or constitute a breach of or default under any law, administrative regulation, judgment, decree, loan agreement, note, resolution, agreement or other instrument to which the Local Agency is a party or is otherwise subject.
6. To the best knowledge of the undersigned, there are no actions, suits, proceedings, inquiries or investigations, at law or in equity, before or by any court, governmental agency, public board or body which are pending and have been served, or threatened against the Local Agency, or against the titles of its officers to their respective offices, or seeking to restrain or to enjoin the application of the proceeds of the [name of bonds] (the “Bonds”) in accordance with the Local Agency Documents, or in any way contesting or affecting the powers of the Local Agency or its authority with respect to the Local Agency Documents, or any action on the part of the Local Agency contemplated by any of said documents.
7. The public capital improvements to be acquired under the Acquisition and Fee Funding Agreement have been or will be constructed as if constructed under the direction and supervision, or under the authority of, the Local Agency. [8. (Applicable only if tax-exempt Bonds are issued) The Tax Certifications attached hereto as Exhibit B are true and correct.] IN WITNESS WHEREOF, the undersigned has executed this CLOSING CERTIFICATE OF THE CITY OF NAPA as of the date first above written.
CITY OF NAPA
By:
Name:
Title:
Exhibit A to Form of Closing Certificate
Resolution No. ______
[Attach Resolution]
Exhibit B to Form of Closing Certificate
Tax Certifications of Local Agency
The Local Agency hereby makes the following representations of facts and expectations and covenants to comply with the requirements of this Tax Certification in connection with its participation in the $[PAR] California Statewide Communities Development Authority (the “Authority”) [name of bonds] (the “Bonds”). The representations and covenants contained in this Tax Certification are designed to support the conclusion that the interest paid on the Bonds issued to fund the Local Agency’s improvements is excluded from gross income for federal income tax purposes under Section 103 of the Internal Revenue Code of 1986 (the “Code”).
Use of Facilities. The proceeds of the Bonds in the amount of $[____] (the “Proceeds”) will be used to finance the construction or acquisition of certain public capital improvements (collectively, the “Facilities”). The Local Agency or another state or local government agency will own, and for the entire useful life of the Facilities reasonably expects to own, all of the Facilities. To the extent any of the Facilities are sold to an entity that is not a state or local government agency, the Local Agency agrees to promptly notify the Authority and provide such additional information to the Authority as shall be necessary in connection with such transfer. The Local Agency will not allow any of the Proceeds or any of the Facilities to be used (for example, by lease or other contract) in the trade or business of any nongovernmental persons (other than in their roles as members of the general public) and will not loan any of the Proceeds. All of the Facilities will be used in the performance of essential governmental functions of the Local Agency or another state or local government agency.
The average expected useful life of the Facilities is at least 20 years.
Timing of Expenditures. The Local Agency reasonably expects that all of the Proceeds will be spent for the governmental purpose of the Bonds within three years. In addition, the Local Agency reasonably expects that at least 5% of the Proceeds will be spent, or that the Local Agency will incur a binding obligation to a third party involving an expenditure of such amount, within six months. The Local Agency reasonably expects that construction or acquisition of the Facilities will proceed with due diligence to completion and that the allocation of proceeds to expenditures for the Facilities will proceed with due diligence. None of the Proceeds will be used to pay principal of or interest on any debt obligations.
Expenditure of Proceeds. Proceeds and other deposits are not treated as spent on the Facilities until the Local Agency makes a transfer to a person unrelated to the Local Agency and such transfer represents a payment for the Facilities. A payment for the Facilities will occur if Proceeds or other deposits are transferred from the construction fund either (a) to the Local Agency and actually used to make a payment to a person unrelated to the Local Agency no later than three days after the transfer, (b) directly to a third party at the direction of the Local Agency to pay the cost of the Facilities, or (c) to the Local Agency to reimburse the Local Agency for costs of the Facilities paid before the date of the transfer. To the extent Proceeds or other deposits relating to the Bonds are transferred to the Local Agency to reimburse the Local Agency for costs of Facilities paid before the date of the transfer, Proceeds will only be treated as spent if (i) such costs were originally paid no earlier than 60 days before ____, 2022, the date on which the Authority declared its intention to reimburse such costs, and (ii) the disbursement of Proceeds to reimburse for such costs occurs within 18 months of the date the costs were paid or 18 months of the date the respective Facilities was placed in service, but in no case more than 3 years after the date the costs were paid by the Local Agency.
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