Sacramento City Council
March 1, 2022

Susana Alcala Wood, City Attorney Jorge Oseguera, City Auditor Mindy Cuppy, City Clerk Howard Chan, City Manager John Colville, City Treasurer City Council Report
915 I Street, 1st Floor
Sacramento, CA 95814
www.cityofsacramento.org

File ID: 2021-01132 March 1, 2022 Consent Item 14

Title: Aggie Square Community Facilities District No. 2021-01 (Improvements) Acquisition Agreements

Location: Districts 5 and 6

Recommendation: Pass a Motion 1) authorizing the City Manager or the City Manager’s designee to execute an Acquisition and Shortfall Agreement with Wexford Development, LLC (Wexford), for improvements to be constructed as part of the Aggie Square Community Facilities District No. 2021-01 (Improvements) (Aggie Square CFD) and to be acquired by the City; and 2) authorizing the City Manager or the City Manager’s designee to execute an Acquisition Agreement by and between the City, Wexford, and the Regents of the University of California for improvements to be constructed as part of the Aggie Square CFD and to be acquired by the Regents of the University of California on behalf of its Davis campus (UC Davis).

Contact: Eric Frederick, Senior Development Project Manager [email protected]
, (916) 808-5129; Sheri Smith, Special Districts Manager [email protected], (916) 808-7204, Department of Finance

Presenter: None.

Attachments:
1-Description/Analysis
2-Background
3-Acquisition and Shortfall Agreement
4-UC Davis Acquisition Agreement

File ID: 2021-01132 Consent Item 14
March 1, 2022
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Description/Analysis

Issue Detail: The Aggie Square Project (Project) is a multi-phase development project envisioned to advance the City’s efforts to make the City of Sacramento a leading location for the health and food sciences and an innovation hub. The proposed Project is a mixed-use innovation and research center located on the UC Davis Sacramento Campus (home of the UC Davis Medical Center) along the Stockton Boulevard corridor. Phase 1 of the Project is being developed under a public/private partnership collaboration between Wexford and UC Davis and is intended to be the catalyst for future development of the surrounding area. In this phase, both UC Davis and private entities intend to put the innovation and research center to multiple uses, including science, technology and data research uses; continuing and professional education; co-working and convening spaces; and mixed-use residential, food education, catering, and community-serving retail.

On September 21, 2021, Council authorized the City to enter into a Master Funding Agreement (Funding Agreement) to evidence the City’s, Wexford’s, and UC Davis’s obligations related to the public-financing assistance for Phase 1. As outlined in the Funding Agreement, UC Davis owns the Aggie Square property and will lease the land to Wexford (or an affiliated entity) for development of the Project. Wexford will lease space in the new facilities to both UC Davis and private interests. The Funding Agreement also set out a framework for the financing of public facilities by utilizing both the Aggie Square Enhanced Infrastructure Financing District (Aggie Square EIFD), which will leverage tax-increment generated by the Project, and the Aggie Square CFD, which will utilize special taxes levied on leasehold interests in the Project.

On October 26, 2021, Council adopted a Resolution of Formation that established the Aggie Square CFD and created a future annexation area where parcels may annex to the Aggie Square CFD at a future date with the unanimous approval of the owner or owners of each such parcel at the time of annexation (Reso. No. 2021-0325). The formation of the Aggie Square CFD allows for tax-exempt bond financing to reimburse Wexford for the cost of public infrastructure to be acquired by the City and/or UC Davis. New public capital improvements necessary for the development of Phase 1 include roadway, storm water, water, and sewer improvements within and surrounding the Project.

In connection with the acquisition of facilities to be acquired by the City, the City and Wexford propose to enter into an Acquisition and Shortfall Agreement (A&S Agreement) that prescribes how Wexford is to construct the facilities, how the City is to acquire the facilities, and how bond proceeds generated by the Aggie Square CFD will be used to reimburse Wexford.

In connection with the acquisition of facilities to be acquired by UC Davis, the City, Wexford, and UC Davis propose to enter into an Acquisition Agreement (UC Davis Acquisition

File ID: 2021-01132 Consent Item 14
March 1, 2022
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Agreement) that prescribes how Wexford is to construct the facilities, how UC Davis is to acquire the facilities, and how bond proceeds generated by the Aggie Square CFD will be used to reimburse Wexford.

Both agreements are being entered into pursuant to the provisions set forth in the California Government Code section 53313.51, part of the Mello-Roos Community Facilities Act of 1982 (Act).

Policy Considerations: Both the A&S Agreement and the UC Davis Acquisition Agreement (collectively, the Agreements) are necessary to reimburse Wexford for construction of facilities.

They do not bind the City to make any expenditure, to incur any indebtedness, or to proceed with the Project.

Economic Impacts: None.

Environmental Considerations:

California Environmental Quality Act (CEQA): In November 2020, UC Davis prepared the Final Supplemental Environmental Impact Report (SEIR) for the UC Davis Sacramento Campus 2020 Long Range Development Plan Update (SCH No. 2020020161). This SEIR consists of three volumes, the second being the “Aggie Square Phase I Project EIR.” The UC Davis Sacramento Campus 2020 Long Range Development Plan Update can be viewed on the UC Davis Office of Environmental Planning’s website at:
https://environmentalplanning.ucdavis.edu/2020-lrdp-update- final-supplemental-eir. Additionally, the City prepared an Addendum to the SEIR which is available for review. Lastly, on April 6, 2021, the City adopted a Resolution No. 2021- 0078 certifying that the City has considered the SEIR, determining that the Project has no feasible alternatives or mitigation measures within the City’s jurisdiction that would substantially lessen or avoid any of the significant effects identified in the SEIR, adopting a statement of overriding considerations, and approving the addendum to the SEIR.

Council’s action in approving these agreements is solely for the purpose of providing funding and reimbursement mechanisms and does not affect the environmental review the was previously prepared for the Project. No additional CEQA review is required.

Sustainability: Not applicable.

Commission/Committee Action: None.

File ID: 2021-01132 Consent Item 14
March 1, 2022
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Rationale for Recommendation: Approval of the Agreements will support new development within the City, and the recommended actions are required by the Act to allow reimbursement to Wexford of the cost of public facilities to be acquired by the City or UC Davis, as applicable.

Financial Considerations: Wexford will fund all costs of improvements for the Project and be reimbursed at a later time if and when sufficient bond proceeds from the Aggie Square CFD and/or tax-increment revenues from the Aggie Square EIFD are available. Reimbursements using CFD special tax bonds will be limited to the construction or financing of authorized public improvements that comply with the City’s adopted Policies and Procedures for Use of Special Assessment and Mello-Roos Community Facilities District Financing for Infrastructure and Public Facilities or any subsequent update to such policy, as well as the Agreements. The special taxes will be used as security for the repayment of tax-exempt CFD bonds that may be are issued and to pay for administrative expenses related to the management of the CFD.

There are no impacts on other funds of the City.

Local Business Enterprise (LBE): Not applicable.

ATTACHMENT 2

BACKGROUND

The Aggie Square CFD was established by the City Council on October 26, 2021, under the Mello-Roos Community Facilities Act of 1982. The CFD currently covers approximately 5.06 acres of property within the Aggie Square Project (Project). An additional 2.60 acres of property are located in a “Future Annexation Area” that may annex to the CFD at a future date.

Purpose of the Aggie Square CFD; List of Facilities
The Aggie Square CFD will finance, through the issuance of tax-exempt bonds or other debt, certain public improvements serving the Project. A full list of improvements authorized to be financed through the CFD is provided in Exhibit B to the Resolution of Formation for the CFD, and a related list of incidental expenses authorized to be financed through the CFD is provided in Exhibit C thereto (Resolution No. 2021-0325).

The maximum principal amount of debt proposed to be incurred for the purposes of the CFD is $45 million. The Aggie Square CFD was established in connection with the Aggie Square EIFD that was also formed in 2021, with the goal of more quickly financing certain authorized facilities than would otherwise occur with the Aggie Square EIFD alone.

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ACQUISITION-AND-SHORTFALL AGREEMENT
Aggie Square Community Facilities District No. 2021-01 (Improvements) This Acquisition-and-Shortfall Agreement, dated __________, 2022, for reference, is between the CITY OF SACRAMENTO, a California municipal corporation and charter city (the “ City”) and WEXFORD DEVELOPMENT, LLC, a Delaware limited liability company, and its permitted assignees under this agreement (the “Developer”).

Background
A. The Developer requested that the City form a community facilities district under the Mello -Roos Community Facilities District Act of 1982, sections 53311 through 53368.3 of the California Government Code (the “Act”), to finance, in part, the acquisition and construction of the public improvements described in Exhibit A, which will be owned by the City (collectively the “Improvements,” and each an “Improvement”), none of which will be within the boundaries of the project site (the “Aggie Square Site”) identified in Exhibit A. The district is named Aggie Square Community Facilities District No. 2021-01 (Improvements) and includes any areas annexed to the district in the future (the “ District ”). The District will also fund facilities that will be owned by THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, acting through its Davis campus (“ UC Davis”) whose acquisition and construction will be governed by an agreement specifically applicable to UC Davis facilities and possibly one or more other agreements.

B. Section 53313.5 of the Act provides that the District may finance the acquisition of facilities benefitting the District only if the facilities have been constructed as if under the direction and supervision of, or the authority of, the local agency that will own or operate the facilities. The purposes of this agreement are (1) to provide for the formation of the District; (2) to provide for the design, construction, and acquisition of the Improvements from the proceeds of special-tax bonds issued by the City by means of the District (the “ Bonds”) or directly from special-tax revenues of the District; and (3) to specify the terms and conditions, including prices and timing, for any reimbursement or other payment to the Developer for the Improvements, and for payment of incidental expenses (e.g., the cost of issuing the Bonds and the expenses of administering the District), whether from the proceeds of the Bonds or special-tax revenues.

C. The parties contemplate that certain of the Improvements will be constructed under construction and design contracts to be awarded by the Developer. The parties further contemplate that the completed Improvements will be conveyed to, and accepted by, the City upon full satisfaction of this agreement. The Developer acknowledges that there may be insufficient funds from the sale of the Bonds to reimburse the Developer for the full cost of the Improvements and that the Developer must pay any funding shortfall in full and without reimbursement from the City. Nothing in this agreement limits or excludes the ability of the Developer to receive reimbursement or compensation for the full cost of

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the Improvements from any other source of funds.

D. The parties contemplate that the Improvements to be constructed by the Developer may be constructed in phases and that the City may sell the Bonds in successive series to finance the acquisition of the completed phases from the Developer.

With these background facts in mind, the parties agree as follows:

1. Formation of District. To the extent the City has not already done so, the City shall commence and complete proceedings under the Act for the formation of the District, and the Developer shall cooperate with the City in those proceedings, which may include elections under sections 53326 and 53353.5 of the Act on the following matters:
(a) the issuance and sale of the Bonds;
(b) As more particularly set forth in the Master Funding Agreement approved by the City Council on September 21, 2021 and as it may be amended from time to time (the “MFA”), the annual levy of special taxes on all taxable lease-hold property held by the Developer or the Developer’s successor-in-interest within the District to raise revenues needed to pay principal and interest on the Bonds, to pay the formation costs (including City expenses and consultant expenses), to pay the annual administrative expenses that the City and the District incur in levying and collecting the special taxes and in paying the principal and interest on the Bonds (including the fees of fiscal agents and paying agents), and to replenish the reserve fund for the Bonds, to accumulate funds for future Bond payments; and (c) the establishment of an appropriations limit for the District.

2. Sale of Bonds. Upon completion of the proceedings specified in section 1, the City intends to initiate the issuance and sale of the Bonds, subject to the following: (a) the Bonds will not be sold until this agreement is signed by all parties; and (b) subject to the terms of the MFA, the City will determine, in its sole discretion, the timing of the issuance and sale of the Bonds, their aggregate principal amount, and the terms and conditions upon which they will be sold, in accordance with the proceedings specified in section 1.

3. Improvement Fund. As provided in the indenture or supplemental indenture under which the Bonds are issued and sold (the “Indenture”), the City shall deposit, hold, invest, and disburse the proceeds of the Bonds and shall set aside a portion of the proceeds in a separate fund for constructing and acquiring the Improvements (the “Improvement Fund ”). The City may withdraw monies from the Improvement Fund in accordance with the Indenture to pay for all or a portion of the costs of design, construction, and acquisition and to pay other costs, as provided in this agreement or in the Indenture.

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4. Direct Funding. The City shall levy a special tax in accordance with the proceedings specified in section 1. All special tax revenues will be used consistent with Section 2(a) of the Master Funding Agreement.

5. Acquisition.
(a) Completion. The City will not acquire ownership of an Improvement or portion of an Improvement unless, as required by the Guidelines for Special District Acquisition Projects attached as Exhibit B to this agreement (the “Guidelines”), the City Manager determines in writing, as part of the verification process and record, that the Improvement or portion of an Improvement has been completed in accordance with section 6 of this agreement and is a functional, usable unit of infrastructure capable of being incorporated into the City’s infrastructure system. (b) Acquisition Price. When an Improvement or portion of an Improvement to be acquired by the City is completed, and when the Developer has given the City all documents, including lien releases, the City requires for the Improvement or portion of an Improvement, the City shall determine the acquisition price in accordance with the Guidelines. The acquisition price for each Improvement or portion of an Improvement will consist of the following: (1) the Developer’s actually paid construction cost as determined by the amounts set forth in contracts, invoices, cancelled checks, and purchase orders entered into by the Developer with its contractors and suppliers in accordance with the Guidelines; plus, (2) to compensate for engineering costs, an amount equal to 15% of the amount determined under clause (1). “Engineering costs” means engineering costs, design costs, surveying costs, construction-management costs, plan-check fees, and inspection fees. The City shall promptly notify the Developer in writing of the acquisition price once the City has determined it.
(c) Payment by City. Within 30 days after the City notifies the Developer of the acquisition price, the City shall pay the Developer, from the Improvement Fund, the amount of the acquisition price minus a retention equal to 150% of the value of punch-list work not yet completed. The City shall hold the retention amount on each acquired Improvement or portion of an Improvement until the punch-list work for the Improvement or portion of an Improvement is completed and the City has accepted the work.
(d) Payment from Improvement Fund. The City’s obligation to pay for the acquisition of the Improvements is limited to monies in the Improvement Fund after deducting other cash reimbursements. If the monies in the Improvement Fund that are available for the acquisition of the Improvements and the payment of incidental expenses are less than the total cost of the Improvements and expenses, then the Developer shall pay the shortfall. The Developer may carry forward any shortfall in

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anticipation of being reimbursed by the City from monies in the Improvement Fund that subsequently become available, and, subject to any applicable legal or other constraints or restrictions, the City shall pay the Developer the shortfall as and when monies become available in the Improvement Fund. Nothing in this agreement limits or excludes the ability of the Developer to receive reimbursement or compensation for the full cost of the Improvements from any other source of funds.

6. Construction Standards. The Developer shall design, bid, and construct the Improvements in accordance with those portions of the Guidelines that the City Manager determines in the City Manager’s sole discretion to be applicable to the particular Improvements. Among other things, the Guidelines specify the procedures for inspection of, approval of, application for, and manner of payment for Improvements. Compliance with the Guidelines will satisfy the following provisions of the Act:
(a) Under section 53313.5 of the Act, the District’s special-tax revenues and proceeds from the Bonds may be used to finance the purchase of Improvements that are completed after adoption of the resolution of formation only if the Improvements are constructed as if they had been constructed under the direction and supervision of, or the authority of, the public agency that will own or operate the Improvements. (b) Under section 53314.9(a)(3) of the Act, the District’s special-tax revenues and proceeds from the Bonds may be used to reimburse the Developer for advances of work in-kind, whether made before or after formation of the District, only if the work has been performed or constructed as if the work had been performed or constructed under the direction and supervision of, or the authority of, the local agency that accepts the work.

7. Ownership and Transfer of the Improvements. The Developer shall convey ownership of the Improvements to the City in accordance with the following policies and procedures:
(a) Real Property Interests. As used in this agreement, “Land” means fee-simple title or such lesser real-property interest as the City determines to be necessary or convenient to be transferred to it in conjunction with the Improvement or portion of an Improvement to be acquired. It is the Developer’s intention that all of the Improvements will be constructed on parcels owned by the City or in the City’s right of way. However, to the extent necessary if an Improvement will be owned and maintained by the City but is partially constructed on a parcel or parcels owned by UC Davis, Wexford shall cause UC Davis to sign and deliver to the City (or shall cause to be signed and delivered) the documents required to complete the transfer of all Land, together with a policy of title insurance, provided at Wexford’s expense, insuring that each of the interests to be transferred is free and clear of all liens, taxes, assessments, easements, leases, or other encumbrances (recorded or not) except for any encumbrances that the City determines, in its reasonable discretion, will not interfere with or have priority over the intended use of the Land or the

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Improvements (the “Title Insurance Policy”). The conveyances to the City as described above and the issuance of the Title Insurance Policy shall be completed through escrow and must be evidenced by a recordation indicating the City’s acceptance of title. Improvements. If a transfer is needed as described in section 7(a), Wexford shall transfer or shall cause UC Davis to transfer the Improvements and Land to the City by grant deed or such equivalent documents as the City determines in its reasonable discretion to be required for that purpose. (b) Maintenance Pending Transfer. Pending completion and transfer of the Improvements to the City as described in Section 7(a) above, Developer or its successors in interest shall pay the entire cost of maintaining the Land and the Improvements in accordance with the Guidelines.
(c) Entry upon City Property. The Developer must obtain from the City a written agreement through the Departments of Utilities or Public Works or other department authorizing any entry onto City property or City right of way and specifying the City’s and the Developer’s rights and liabilities related to such entry.

8. Warranties. The Guidelines specify the Developer’s warranty and related obligations.

9. Payment for Incidental and Other Expenses Relating to the Improvements. (a) Incidental and Other Expenses. If the Developer incurs incidental expenses that pertain to the Improvements but are not reimbursed by the 15% allowance for engineering costs in section 5(c) (examples of incidental expenses are the costs of environmental studies and environmental remediation), then the City may use available monies in the Improvement Fund to reimburse the Developer for those expenses so long as (1) the reimbursement is in accordance with the Indenture and any applicable legal or other restrictions and (2) the Developer submits supporting documentation that the City Manager determines to be satisfactory. (b) Advance of Funds. If the Developer advances funds to the City to pay for the City’s incidental expenses, such as the costs of conducting the District formation proceedings and the costs of issuing and selling the Bonds, then the City may use available monies in the Improvement Fund to reimburse the Developer for the advanced funding if (1) the reimbursement is in accordance with the Indenture and any applicable legal or other restrictions and (2) the Developer submits supporting documentation that the City Treasurer determines to be satisfactory. (c) City Expenses. To the extent that there are unfunded or unreimbursed City expenses for review, inspection, and project management pertaining to the Improvements, the City may reimburse itself for those expenses from proceeds of the Bonds or from special-tax revenues.

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10. Limitation of Liability; Excess Costs. All City obligations arising out of, or related to, this agreement are special and limited obligations of the City, and the City’s obligations to make any payments under this agreement are to be paid exclusively from the monies, if any, in the Improvement Fund. This agreement does not constitute a general debt or general liability of the City. The Developer’s reimbursement under this agreement will be solely from proceeds of the Bonds. The Developer is not entitled by this agreement or otherwise to reimbursement for sums advanced or expenditures made by the Developer under this agreement, whether for the Improvements, or the maintenance of the Land and Improvements, from any of the following: the City’s general fund, any other City funds, the City’s taxing power, or the City’s other assets. Cost overruns on the Improvements or any portion of the Improvements will be the Developer’s sole responsibility, except that the Developer may apply cost savings from any portion of the Improvements to another portion. For purposes of this agreement, the Developer is solely and fully liable for, and shall pay, all costs of the Improvements and all incidental expenses that are in excess of the available monies in the Improvement Fund. The City’s elected officials, officers, employees, and agents (including contractors and consultants) are not liable in their individual capacities to the Developer or any other party by reason of their signing this agreement or acting or failing to act in connection with this agreement.

Nothing in this agreement limits or excludes the ability of the Developer to receive reimbursement or compensation for the full cost of the Improvements from any other source of funds.

11. Indemnification; Waiver and Release.
(a) Definitions. The following definitions apply in sections 11(b), 11(c), 11(d), and 11(e):
(1) “Claim” means any liability, claim, demand, damage, or cost (including reasonable attorneys’ fees, whether for outside counsel or the City Attorney) arising directly or indirectly from any actions or omissions by any of the following in connection with the design, construction, operation, maintenance, or repair of the Improvements: the Developer; any of the Developer's engineers, contractors, or subcontractors; any person or entity employed by the Developer; or other person or entity acting on behalf of, or as the authorized agent for, the Developer or any of the Developer’s engineers, contractors, or subcontractors.
(2) “Hazardous Substance Claim” means any liability, claim, demand, damage, or cost (including reasonable attorneys’ fees, whether for outside counsel or the City Attorney) arising from any death, bodily injury, personal injury, property damage, economic loss, damage to the environment, or violation of law that— (A) relates to the use, storage, treatment, transportation, release, or disposal of any Hazardous Substances (defined in Exhibit C) by any person or entity (except persons or entities acting on the City’s behalf or under the City’s

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control) on, under, about, or around the portion of the Land on which any of the Improvements or the easements that are required to be or are transferred to City are located; and
(B) occurs on or before the date the Land or the Improvements are conveyed to City under this agreement.
(b) Indemnification by the Developer. The Developer shall fully indemnify, defend, protect, and hold harmless the City and the City’s elected officials, officers, employees, and agents from and against each Claim that arises from any death, bodily injury, personal injury, property damage, economic loss, or violation of law, subject to the following: the Developer will not be liable under this section 11(b) for a Claim alleging the City’s sole and active negligence while performing design review or approval or while inspecting construction in connection with the Improvements.

Nothing in this agreement constitutes the City’s waiver of any immunity or defense it may have relating to any Claim, including immunity or defenses relating to design review, design approval, or construction inspection.
(c) Indemnification Regarding Hazardous Substances. The Developer shall fully indemnify, defend, protect, and hold harmless the City and the City’s elected officials, officers, employees, and agents from and against all Hazardous Substance Claims, subject to the following: the Developer’s obligation under this section 11(c) does not apply to the incorporation of building materials as part of the Improvements so long as the incorporation is performed in accordance with applicable laws and is not in violation of Environmental Laws (defined in Exhibit C) in effect at the time of the incorporation.
(d) Duration of Indemnification Obligations. With respect to the Improvements and to each portion of the Improvements that the Developer constructs, the Developer’s obligations under sections 11(b) and 11(c) will expire on a phase-by-phase basis, as follows:
(1) The Developer’s obligations under section 11(b) will expire for a phase on the date that is one year after the City’s written acceptance of the phase as complete, except that section 11(b) will remain in effect for any Claim made before that date and for any Claim that relates directly or indirectly to such a Claim.
(2) The Developer’s obligations under section 11(c) will survive the termination of this agreement with respect to a phase until the date that is two years after the City’s written acceptance of the phase as complete, except that section 11(c) will remain in effect with respect to any Claim made before that date and for Claims that relate directly or indirectly to such a Claim.

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(3) This section 11(d) applies only to sections 11(b) and 11(c) of this agreement and does not affect any liability the Developer might have under applicable law to the extent the Developer is a contaminator of the Land. (e) Additional Provisions Regarding Indemnification Obligations. (1) The City does not waive any rights it has against the Developer under this section 11 because of any insurance coverage provided under this agreement. (2) Except as expressly provided in section 11(b) for Claims based upon the City’s sole and active negligence, the Developer’s obligations under this section 11 will not be limited or waived in any way because the City prepared, supplied, or approved plans and specifications for the Improvements or inspected or failed to inspect construction of the Improvements.
(3) The Developer’s obligations under this section 11 are to be interpreted and applied broadly so as to provide the City with the maximum coverage that accords with the language used.
(4) Except as expressly provided, nothing in this section 11 is to be interpreted as limiting the scope of the parties’ indemnification and defense rights and obligations.
(5) The Developer shall cause all engineering and construction contracts relating to the Improvements to require that the engineer or contractor fully and without limitation indemnify, defend, protect, and hold harmless the City and the City’s elected officials, officers, employees, and agents from and against any liability, claim, demand, damage, or cost (including reasonable attorneys’ fees, whether for outside counsel or the City Attorney) that arises directly or indirectly from any death, bodily injury, personal injury, property damage, economic loss, or violation of law, but only to the extent that (A) the liability, claim, demand, damage, or cost arises from actions or omissions of the engineer or contractor, or of any person or entity employed by, or acting as the authorized agent for, the engineer or contractor, in connection with the design, construction, maintenance, operation, or repair of the Improvements; and (B) the engineer, contractor, or other party is contractually responsible for a portion or aspect of the Improvements (for example, a contractor responsible for constructing a portion of the Improvements would not be held responsible for the design, nor would an engineer who designed a portion of the Improvements be held responsible for construction not in accordance with the design). If an engineering or construction contract contains the language contained in Exhibit D or other language the City has approved in writing, and if the City is satisfied in its sole discretion with the adequacy of the engineer’s or contractor’s insurance, then the Developer will have satisfied its obligation under this

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section 11(e)(5).
(f) Waiver by the Developer. The Developer and its successors and assigns hereby waive and release all claims of whatever nature that may arise against the City or the City’s elected officials, officers, employees, and agents in connection with the design or construction of the Improvements. This waiver and release includes all claims arising under section 1542 of the California Civil Code, which provides as follows:

A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.

Thus, this agreement releases and extinguishes, without limitation, all claims that the parties do not know or suspect to exist as well as all claims that the parties do know or suspect to exist.
(g) Disclaimer by the City Regarding Hazardous Substances. The City has not conducted any review, examination, or assessment to assess, identify, or detect the presence of any Hazardous Substances (defined in Exhibit C) on, under, about, or around the Land (defined in section 7(a)). Between the City and the Developer, any liability associated with the presence of any Hazardous Substances on, under, about, or around the Land, including any interests in the Land dedicated to the City as provided in this agreement, will be governed by the indemnity provisions in this section 11 regardless of whether any such review, examination, or assessment was or is conducted. (h) Indemnification by City. The City shall fully indemnify, defend, protect, and hold harmless the Developer and the Developer’s officers, employees, and agents from and against any liability, claim, demand, damage, or cost (including reasonable attorneys’ fees) arising from any death, bodily injury, personal injury, property damage, economic loss, damage to the environment, or violation of law to the extent arising from either of the following:
(1) the use, storage, treatment, transportation, release, or disposal of Hazardous Substances (defined in Exhibit C) by any person or entity (except persons or entities acting on the Developer’s behalf or under the Developer’s control) on, under, about, or around the portion of the Land on which any of the Improvements or the easements that are required to be or are transferred to City are located, and occurring after the Land or any of the Improvements or easements are conveyed to the City under this agreement; or (2) any act (including those covered by section 11(h)(1)) by the City or the City’s elected officials, officers, employees, and agents in the use and operation of the Improvements.

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(i) The parties’ rights and obligations under this section 11 will survive termination of this agreement.

12. Audit. The City is entitled, after giving 10-days’ written notice to the Developer, to review during the Developer’s normal business hours all of the Developer’s books and records pertaining to costs and expenses the Developer incurred in constructing the Improvements, including any construction contracts, subcontracts, change orders, invoices, and payroll records.

13. Termination.
(a) Mutual Consent. The City and the Developer may agree in writing to terminate this agreement, and upon termination the Developer will have no claim or right to any further payments for the Improvements except as otherwise may be provided in the written termination agreement.
(b) City Election for Cause.
(1) The City may terminate this agreement, without the Developer’s consent, if any of the following events occurs:
(A) The Developer voluntarily files for reorganization or other relief under any federal or state bankruptcy or insolvency law.
(B) The Developer has any involuntary bankruptcy or insolvency action filed against it, or suffers a bankruptcy or insolvency proceedings initiated by a trustee or a receiver to take possession of its assets, or suffers an attachment or levy of execution to be made against its leasehold interest or any building it owns within the District, and the action, possession, attachment, or levy is not terminated or released within 60 days after occurring.
(C) The Developer abandons the construction of the Improvements. (D) The Developer breaches any material covenant or defaults in the performance of any material obligation of this agreement. (E) The Developer transfers any of its obligations under this agreement unless as explicitly provided by this agreement.
(F) The Developer or any of its successors or assigns challenges the validity of the District, the Bonds, or the levy of the special tax within the District, except that the Developer may challenge the annual levy of the special tax

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for conformity with the special-tax formula.
(G) The Developer materially fails to complete the Improvements. (2) The City shall give the Developer written notice when an event described in section 13(b)(1) occurs. As soon as is practicable after receiving the notice, the Developer shall meet and confer with the City Manager and with other appropriate City staff and consultants to discuss options available to ensure timely completion of the Improvements or cure any other defaults, including the option of the City terminating this agreement. If the City elects to terminate this agreement, then the City shall notify the Developer in writing (and any mortgagee or trust beneficiary the Developer has identified to the City, in writing, as entitled to receive the notice) of the grounds for termination, and the Developer will have 60 days after receiving the notice to eliminate or mitigate the grounds for termination to the City’s satisfaction. If the mitigation or elimination selected is such that, by its nature, it cannot be completed within 60 days, and if the Developer begins the mitigation or elimination within the 60- day period and diligently pursues completion of the Improvements or cures any other defaults, then the period for completion will be extended for as long as the City determines is reasonably necessary. If, at the end of the 60-day period and any extension, the Developer has not eliminated or completely mitigated the grounds for termination to the City’s satisfaction, then— (A) the City may terminate this agreement;
(B) the City may assume the Developer’s contracts for, and may award new contracts for, any remaining work related to Improvements not already acquired from the Developer and continue with that work until it has been completed to the City’s satisfaction;
(C) the City may use all or any portion of the monies in the Improvement Fund to pay for any remaining work related to Improvements not already acquired from the Developer; and
(D) the Developer will have no claim or right to any further payments for the Improvements.
(c) Liability for taxes after termination. After termination of this agreement, the Developer’s lease-hold property within the District will remain fully liable for payment of the special taxes required for debt service on the Bonds, administrative costs of the CFD, and for payment of the special taxes required to complete the Improvements that benefit the Developer’s lease-hold property.

Acquisition & Shortfall Agreement | Page 12

14. Severability. If a court with jurisdiction rules that any nonmaterial part of this agreement is invalid, unenforceable, or contrary to law or public policy, then the rest of this agreement remains valid and fully enforceable.

15. Successors and Assigns. This agreement binds and inures to the benefit of the parties’ successors and assigns. Provided the Developer or any successor in interest as applicable provides the City with written notice no later than 10 business days after assignment, all or a portion of the rights and obligations under this agreement may be assigned to any ground lessee of any portion of the Aggie Square Site as permitted by the MFA, and further provided that amounts received by Developer (or its permitted successors in interest) in payment of the acquisition price may be assigned to a lender as collateral.

16. 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.

17. Notices. Any notice, payment, or instrument required or permitted by this agreement to be given or delivered to either party will be considered properly given only when mailed or delivered in the manner provided by this section 17 to the persons identified below. A notice, payment, or instrument that is mailed will be effective or will be considered to have been given on the third day after it is deposited in the U.S. Mail (certified mail and return receipt requested), addressed as set forth below, with postage prepaid. A notice, payment, or instrument 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 17.

If to the City:

Special Districts Manager
City of Sacramento
915 I Street, 5th Floor
Sacramento, CA 95814
If to the Developer:

Wexford Development, LLC
801 W. Baltimore Street, Suite 505
Baltimore, Maryland 21201
Attention: Danielle Howarth, Senior Vice
President and General Counsel and Mark
Korczakowski, Senior Vice President,
Asset Management

18. Interpretation. This agreement is to be interpreted and applied in accordance with California law. Exhibits A, B, C, and D are part of this

Acquisition & Shortfall Agreement | Page 13
agreement. “Include” and its variants are terms of enlargement rather than of limitation.

For example, “includes” means “includes but not limited to,” and “including” means “including but not limited to.” “Sole Discretion” means that the party exercising discretion or judgment may do so based solely on its own, unfettered assessment of its own interests, without considering how its decision affects the other party, and without constraint by the implied covenant of good faith and fair dealing. “Reasonable Discretion” means that the party exercising discretion or judgment shall do so as a reasonable person in comparable circumstances and in accordance with commonly accepted industry principles and practices.

19. Counterparts. The parties may sign this agreement with electronic or digital signatures. In addition, 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. Delivery of a signed counterpart may be accomplished by email transmission of a PDF file as follows:

For delivery to the Developer, [email protected] For delivery to the City, [email protected]

20. Amendments. This agreement may be amended only by another written agreement signed by all of the parties.

21. Term of Agreement. This agreement is effective on the date all parties have signed it, as indicated by the dates in the signature blocks below, and, except as otherwise provided in sections 11 and 13, will terminate one year after all of the following have occurred: the City has accepted all of the Improvements as complete, all bond proceeds have been expended and there is no anticipation or any future bond issuances.

22. No Agency. Neither the Developer nor any of the Developer’s agents, engineers, contractors, or subcontractors is an agent of the City in connection with the performance of any of the Developer’s obligations under this agreement.

23. Other Agreements. This agreement does not cancel, supersede, modify, or otherwise affect the following: any other agreements that have been or may be made by the parties regarding the subject matter of this agreement, including the Master Funding Agreement; or any approvals or permits that have been issued by any party regarding the subject matter of this agreement.

24. Consultation with Attorneys. The parties to this agreement have consulted with their own attorneys concerning this agreement and have been fully advised by their attorneys with respect to their rights and obligations under this agreement. Relying on that consultation and advice, each party voluntarily enters into this agreement.

25. Recording. Any party may record this agreement in the office of the Sacramento County Clerk/Recorder. In the event this agreement has been recorded, then at any time after the

Acquisition & Shortfall Agreement | Page 14
termination of this agreement, the City shall execute and deliver to Developer a certificate, in form and substance reasonably acceptable to the parties, confirming that this agreement is terminated. Such executed certificate shall be provided within 10 business days of the City’s receipt of written request therefor. Any such certificate may be recorded by Developer at its sole cost and expense.

26. Entire Agreement. This agreement sets forth the parties’ entire understanding regarding the matters set forth and is intended to be their final, complete, and exclusive expression of those matters except for any matters also covered by a Master Funding Agreement, or any other agreement entered into before or concurrently with this agreement. (Signature page follows)

Acquisition & Shortfall Agreement | Signature Page
City of Sacramento
By: ________________________________
Leyne Milstein
Assistant City Manager
Date: _____________, 2022
Wexford Development, LLC
By: ________________________________
Douglas Woodruff, Senior Vice President
Date: _____________, 2022
Attest
Sacramento City Clerk
By: ________________________________
Approved as to Form
Sacramento City Attorney
By: ________________________________
Senior Deputy City Attorney
Tharp
416

Acquisition & Shortfall Agreement | A-1 (Improvements & Budgeted Amounts) Acquisition-and-Shortfall Agreement

EXHIBIT A
Improvements and Budgeted Amounts
Note: Budgeted amounts are estimates. Actual amounts subject to reimbursement will be determined by the acquisition price.

The Aggie Square Site is depicted below as the outlines of future building footprints.

Improvements (City Owned) Budgeted Amounts
Stockton Blvd (Stockton curbs, landscaping, lighting, etc. and intersections work at both 2nd and 3rd)
$2,595,037
48th and 2nd (intersection improvements to 48th and 2nd and northern access to parking structure)
$3,785,731
2nd Avenue (curbs, gutters, sidewalks on the City owned section of 2nd avenue)
$2,545,681
Sub Total $8,926,449
Soft Cost Allowance (20%) $1,785,290
Construction Financing Costs $1,164,902
Total $11,876,640

Acquisition & Shortfall Agreement | Page B-1 (Guidelines) Acquisition-and-Shortfall Agreement

EXHIBIT B
City of Sacramento
Departments of Utilities and Public Works
Guidelines for Special District Acquisition Projects
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”) unless waived by the City consistent with City Code and policy. 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 the Division Manager’s 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.

Acquisition & Shortfall Agreement | Page B-2 (Guidelines)

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.

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.

Acquisition & Shortfall Agreement | Page B-3 (Guidelines)

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.

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) 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).
(b) The invitation to bidders must be publicly advertised. (c) The Bid Documents must include a non-collusion affidavit in a form acceptable to the City, to be signed by an authorized representative of the bidder. (d) The Bid Documents must comply with all other applicable City requirements. (e) 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) The Engineer’s Estimate is reasonable and has been approved by the City Engineer. (b) 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.

Acquisition & Shortfall Agreement | Page B-4 (Guidelines) (c) 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) The Bid Documents include a non-collusion affidavit in a form acceptable to the City, to be signed by an authorized representative of the bidder. (e) The number of allotted working days specified in the contract documents is reasonable for the proposed work.
(f) Any liquidated-damage clauses are consistent with City policy.

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

Acquisition & Shortfall Agreement | Page B-5 (Guidelines) 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) That there are no pending disputes over the bidding procedures. (b) That all bidders received the same set of Bid Documents and all of the addenda issued.
(c) That all applicable City approvals required for the work have been obtained. (d) That the bid proposal has not been conditioned in any way.

The Developer shall retain the original of all bids received for a minimum of four years after the date of the acceptance of the Acquisition Facility by the City.

4.2 Within five working days after receipt of the bid material specified in section 4.1, the City Engineer shall review the bid summary and a copy of the lowest bid and shall determine whether (a) to concur in the Developer’s recommendation or (b) to notify the Developer that additional review time will be required, specifying the date by which review will be complete.

4.3 The City Engineer shall give the Developer written notification of the determination under section 4.2 within the time stated in that section.

4.4 If the lowest bidder is not recommended, if the City Engineer does not concur with the Developer’s recommendation, or if the City Engineer is aware of any irregularities or possible disputes over the bidding procedure, then the Developer or the City Engineer shall notify the City Manager. This notice must be in writing and must be submitted to the City within five working days after the determination required by section 4.2 has been made. Within ten days after receiving the notice, the City Manager shall review the Bid Documents and procedures and advise the Developer of the City’s decision regarding the award of the contract.

Acquisition & Shortfall Agreement | Page B-6 (Guidelines)

4.5 The Developer may reject all bids received and re-advertise for bids in accordance with these guidelines or, with the City Engineer’s concurrence, may dispense with further competitive bidding. The Developer may not reject individual bids without the City Engineer’s concurrence.

4.6 The Developer must obtain the City Engineer’s formal written concurrence before awarding the construction contract.

4.7 The Developer shall award the contract, with the City Engineer’s concurrence in the form of a letter or memorandum on City letterhead, within 60 days after the bid opening and shall authorize the Contractor to proceed with the work within 60 days after award.

4.8 The Developer shall provide the following items to the City Engineer within 30 days after the Developer has authorized the Contractor to proceed:
(a) A copy of the signed contract with the Contractor, specifying the award date. (b) A written statement (1) that the contract award amount is within the Engineer’s Estimate and does not exceed the overall funds available from the District; or (2) that the contract award amount exceeds the Engineer’s Estimate or the overall funds available from the District, and the Developer will pay all amounts by which the contract exceeds the estimate and funds available.

4.9 The Developer may be excused from complying with this section 4.0, 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.

5.0 Construction

5.1 Either the Developer or the Design Engineer shall schedule and conduct a pre-construction meeting before work on the Acquisition Facilities begins. The pre-construction meeting must be attended by the Developer, the Design Engineer, the City Engineer, the Contractor, representatives of each agency issuing permits, representatives of affected utilities, and other interested parties. The City Engineer and the City must receive written notice of the pre-construction meeting at least five days before the meeting, and the meeting date must be scheduled for a time, place, and date acceptable to the City Engineer and the City.

5.2 The Contractor shall coordinate all inspections of Acquisition Facilities in accordance with City policy applicable to the Acquisition Facilities.

5.3 The Developer shall hire a labor-compliance consultant to certify to the City that all requirements of Sacramento City Code sections 3.60.180 (concerning prevailing wages, hours of work, etc.) and 3.60.190 (concerning apprentices) have been satisfied. The

Acquisition & Shortfall Agreement | Page B-7 (Guidelines) consultant’s certification must be submitted to the City Engineer when the Developer submits a request for reimbursement in accordance with section 7.0.

5.4 If the Developer desires to be reimbursed for any contract change-order work, then before allowing the Contractor to undertake the work the Developer must obtain from the City Representative overseeing the work (as designated in writing by the City) the representative’s written acknowledgment of the need to perform the change-order work in order to complete the project satisfactorily. The City Engineer shall subsequently determine if any adjustments are to be made to the Acquisition Price as a result of the change order.

5.5 The City Engineer must review and approve in advance any revisions to the Plans, and each change order must be submitted to, and approved by, the City Engineer as a condition for reimbursement of costs associated with the change order.

5.6 For the purposes of these guidelines, the construction will be considered complete when the Acquisition Facility is fully completed and available for public benefit, when the City has accepted the Acquisition Facility in accordance with City policy, and when the Developer has obtained the following, as applicable:
(a) Approval of the City if a grading permit is required. (b) Approval of all facilities shown on the Plans or included in the Acquisition Facilities by the affected utility companies or other affected departments of the City or the County of Sacramento.
(c) Approval of the City of all erosion-control improvements required by the Plans or the grading permit.
(d) Approval by the City’s Licensed Land Surveyor of all monumentation. (e) Approval of the City of all street improvements (e.g., storm drains, street lighting, traffic signals) shown on the Plans through issuance of an inspection-completion report.

6.0 Prevailing Wages and Apprentices

6.1 The Contractor and all subcontractors shall comply with Sacramento City Code sections

3.60.180 (concerning prevailing wages, hours of work, etc.) and 3.60.190 (concerning apprentices) for all work performed on the Acquisition Facilities. The Developer shall certify to the City Engineer, in writing, that the Contractor and all subcontractors have complied with the requirements of Sacramento City Code sections 3.60.180 and 3.60.190.

Upon request, the Developer shall provide copies of certified payrolls to the City Engineer.

Acquisition & Shortfall Agreement | Page B-8 (Guidelines)

6.2 Consistent with California Labor Code section 1720, subdivision (c)(2), work performed on the Acquisition Facilities will be eligible for reimbursement from the District’s special-tax proceeds or the District’s bond proceeds only if all public-improvement work that is within the District and required as a condition of regulatory approval for the Developer’s project, including work not funded through the District, has been performed in compliance with Sacramento City Code sections 3.60.180 and 3.60.190.

7.0 Reimbursement

7.1 The Developer shall submit to the City Engineer a finalized copy of Plans and Specifications that incorporates all approved changes, and a copy of any recorded tract map or maps. In addition, after completion of a Facility, the Developer shall submit a request for reimbursement to the District Administrator that follows the format provided in Schedule A to this exhibit (titled “Developer Reimbursement Request Format”) and includes the following:
(a) Final quantities and final costs on each contract item, certified by the Design Engineer, and the total of all construction costs for the particular Facility accompanied by any other supporting documentation necessary to justify reimbursement.
(b) Approved contract change orders with final quantities and final costs. (c) Certification that the Contractor and all subcontractors have complied on the project with all applicable City and State of California public-works provisions, including Sacramento City Code sections 3.60.180 (concerning prevailing wages, hours of work, etc.) and 3.60.190 (concerning apprentices).
(d) Itemized breakdown of other reimbursable costs as delineated in the applicable Acquisition Agreement.
(e) Copies of invoices, vouchers, canceled checks, and other available materials to support all of the Developer’s expenditures claimed for reimbursement. (f) Copies of all recorded notices of completion.
(g) Certification or proof of Advertisement as required by these guidelines. (h) Copies of final mechanics-lien releases for the Facility. If the Facility is an increment of a larger Acquisition Facility, the lien releases may be unconditional lien releases upon receipt of the progress payments applicable to the Facility. (i) Documentation that all required necessary property interests have been transferred to the City.

Acquisition & Shortfall Agreement | Page B-9 (Guidelines) (j) Documentation that all fee interests required for the Acquisition Facilities have been transferred to City or that other arrangements for such transfer, as required by the City, have been made.
(k) Submission of written certifications from other agencies or utilities involved in the reimbursement request, confirming that the Facility was inspected and completed according to approved Plans and Specifications and that any utilities or agency cost reimbursements are disclosed in the District reimbursement requests. (l) Where applicable, all equipment manuals for the Acquisition Facilities. (m) All warranties relating to the Acquisition Facilities.

In addition, the Developer shall submit to the City Engineer a finalized copy of Plans and Specifications that incorporates all approved changes, and copies of all recorded tract maps.

7.2 The District Administrator shall have the request for reimbursement and all supporting data reviewed by a professional engineer licensed in California, who may rely on the authenticity of all supporting data, documents, representations, and certifications provided by the Developer and each Design Engineer. The Developer shall sign a certification on all submitted data. If additional information is required during the review process to comply with section 7.1, then the District Administrator may request in writing that the Developer supply the supplemental data, and the Developer shall promptly comply with such a request.

7.3 Upon review of the submitted information, if complete, the District Administrator shall determine whether and to what extent the costs and expenses claimed are reimbursable, and shall provide a written recommendation to the City Manager, who shall make a final determination of reimbursement eligibility.

Acquisition-and-Shortfall Agreement

SCHEDULE A TO EXHIBIT B
Developer Reimbursement Request Format
Acquisition & Shortfall Agreement | Schedule A to Exhibit B City of Sacramento
[Name] Community Facilities District No. ___

REQUEST FOR PAYMENT
[NAME OF DEVELOPER] (the “Developer”) hereby requests payment in accordance with the Acquisition and Shortfall Agreement between the Developer and the CITY OF SACRAMENTO (the “City”), which is dated as of ________, 20__, and designated as City Agreement No. 20__- ___ (the “Agreement”), in the total amount of $__________, for the Improvement or Improvements or portions of the Improvement or Improvements identified in Exhibit A to the Agreement, all as more fully described in Exhibit A to this request. In connection with this request, the undersigned hereby represents to the City as follows:

1. I am an officer of the Developer, duly authorized to sign this request on the Developer’s behalf, and am knowledgeable about the matters set forth in this request.

2. All costs of the Improvements or portions of Improvements for which payment is requested are actual costs and have not been inflated in any respect. The items for which payment is requested have not been the subject of any prior payment request submitted to the City.

3. Documentation that supports each cost for which payment is requested (e.g., third-party invoices) is attached as Exhibit A to this request.

4. The Improvements or portions of Improvements for which payment is requested were constructed in accordance with all applicable City standards.

I hereby declare under penalty of perjury under the laws of the State of California that the representations set out above are true.

Signed on _______________, at _____________________________. (Print Date) (Print City and State)
[Name of Developer]
By: _____________________________
(Signature)
_____________________________
(Print Name)
_____________________________
(Print Title)
Attached as Exhibit A is a list of all Improvements or portions of Improvements for which payment is requested, with supporting documentation.

Acquisition & Shortfall Agreement | Page C-1 (Hazardous Substances) Acquisition-and-Shortfall Agreement

EXHIBIT C
Hazardous Substances

1. As used this agreement, “Hazardous Substances” means any of the following:
(a) Those substances included within the definitions of hazardous substance, hazardous waste, hazardous material, toxic substance, solid waste, pollutant, or contaminant under any Environmental Law, as defined below.
(b) Those substances listed in the United States Department of Transportation Table (49 C.F.R. § 172.101), or by the Environmental Protection Agency, or any successor agency, as hazardous substances (40 C.F.R. Part 302).
(c) Other substances, materials, and wastes that are or become regulated or classified as hazardous or toxic under federal, state, or local laws or regulations. (d) Any material, waste, or substance that is—
(1) a petroleum or refined petroleum product;
(2) asbestos;
(3) polychlorinated biphenyl;
(4) designated as a hazardous substance pursuant to 33 U.S.C. § 1321 or listed pursuant to 33 U.S.C. § 1317;
(5) an inflammable explosive; or
(6) a radioactive material.

2. As used this agreement, “Environmental Law” means all federal, state, local, or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, and requirements of any government authority regulating, relating to, imposing liability for, or establishing standards of conduct concerning any Hazardous Substance, or pertaining to environmental conditions on, under, about, or around any of the Land, in accordance with this agreement, as now or may at any later time be in effect, including but not limited to the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) (42 U.S.C. § 9601 et seq.); the Resource Conservation and Recovery Act of 1976 (RCRA) (42 U.S.C. § 6901 et seq.); the Clean Water Act, also known as the Federal Water Pollution Control Act (FWPCA) (33 U.S.C. § 1251 et seq.); the Toxic Substances Control Act (TSCA) (15 U.S.C. §2601 et seq.); the Hazardous Materials Transportation Act (HMTA) (49 U.S.C. § 1801 et seq.); the Insecticide, Fungicide, Rodenticide Act (7 U.S.C. § 136 et seq.); the Superfund Amendments and Reauthorization Act (42 U.S.C. § 6901 et seq.); the Clean

Acquisition & Shortfall Agreement | Page C-2 (Hazardous Substances) Air Act (42 U.S.C. §7401 et seq.); the Safe Drinking Water Act (42 U.S.C. § 300f et seq.); the Solid Waste Disposal Act (42 U.S.C. § 6901 et seq.); the Surface Mining Control and Reclamation Act (30 U.S.C. § 1201 et seq.); the Emergency Planning and Community Right to Know Act (42 U.S.C. § 11001 et seq.); the Occupational Safety and Health Act (29 U.S.C. §§ 655 and 657); the California Underground Storage of Hazardous Substances Act (Cal.

Health and Safety Code § 25280 et seq.); the California Hazardous Substances Account Act (Cal. Health and Safety Code § 25100 et seq.); the California Safe Drinking Water and Toxic Enforcement Act (Cal. Health and Safety Code § 24249.5 et seq.); the Porter-Cologne Water Quality Act (Cal. Water Code § 13000 et seq.), together with any amendments of or regulations promulgated under the statutes cited above, and any other federal, state, or local law, statute, ordinance, or regulation now in effect or later enacted that pertains to the regulation or protection of the environment, including ambient air, soil, soil vapor, groundwater, surface water, and land use.

Acquisition & Shortfall Agreement | Page D-1 (Construction Contract Language) Acquisition-and-Shortfall Agreement

EXHIBIT D
Construction Contract Language
For Construction Contractors:
[#]. Indemnity and Insurance.

A. Indemnity: Contractor shall defend, hold harmless, and indemnify the City and the City’s officers and employees, and each and every one of them, to the fullest extent permitted under law, from and against all actions, damages, costs, liabilities, claims, demands, losses, judgments, penalties, and expenses of every type and description, arising out of or caused by or in any way connected to Contractor’s performance or failure to perform under this Construction Contract, including performance or failure to perform by any of Contractor’s subcontractors, suppliers, or agents, or the officers or employees of any of them, provided that the foregoing indemnity does not apply to liability for damages for death or bodily injury to persons, injury to property, or other loss, damage, or expense, to the extent arising from the active negligence or willful misconduct of, or defects in design furnished by, the City or the City’s agents, servants, or independent contractors who are directly responsible to the City, except when such agents, servants, or independent contractors are under the supervision and control of Contractor or any subcontractor (including lower-tier subcontractors) or agent of Contractor.

B. Insurance Policies: The existence or acceptance by the City of any of the insurance policies or coverages described in this Construction Contract will not affect or limit any of the City’s rights under this section [#], nor will the limits of any insurance limit the liability of Contractor under this section [#].

C. Survival: The provisions of this section [#] will survive any expiration or termination of this Construction Contract.

For Design Professionals (architects, engineers, and other construction design professionals):
[#]. Indemnity and Insurance.

A. Indemnity: Contractor shall defend, hold harmless, and indemnify the City and the City’s officers and employees, and each and every one of them, to the fullest extent permitted under law, from and against all actions, damages, costs, liabilities, claims, demands, losses, judgments, penalties, and expenses of every type and description, arising out of or caused by or in any way connected to Contractor's performance or failure to perform under this [Design Professional] Contract, including performance

Acquisition & Shortfall Agreement | Page D-2 (Construction Contract Language) or failure to perform by any of Contractor's subcontractors, suppliers, or agents, or the officers or employees of any of them, provided that the foregoing indemnity does not apply to liability for damages for death or bodily injury to persons, injury to property, or other loss, damage, or expense, to the extent arising from the active negligence or willful misconduct of, or defects in design furnished by, the City or the City’s agents, servants, or independent contractors who are directly responsible to City, except when such agents, servants, or independent contractors are under the supervision and control of Contractor or any subcontractor (including lower-tier subcontractors) or agent of Contractor. While Contractor’s defense costs ordinarily cannot exceed Contractor’s proportionate percentage of fault, if one or more defendants is unable to pay its share of defense costs due to bankruptcy or dissolution, the Contractor shall meet and confer with the City and other parties regarding the unpaid defense costs.

B. Insurance Policies: The existence or acceptance by the City of any of the insurance policies or coverages described in this [Design Professional] Contract will not affect or limit any of City’s rights under this section [#], nor will the limits of any insurance limit the liability of Contractor under this section [#].

C. Survival: The provisions of this section [#] will survive any expiration or termination of this [Design Professional] Contract.

ACQUISITION

AGREEMENT
BY
AND
AMONG
THE

REGENTS
OF
THE
U1TIVER$ITY
OF

CALIFORNIA,

WEXFORD

DEVELOPMENT,
LLC
AND
THE
CITY
OF

SACRAMENTO
Dated
as
of
February—,
2022

ACQUISITION

AGREEMENT
Recitals
A.

The
parties
to
this
Acquisition
Agreement
(the
“Agreement”)
are
THE

REGENTS
OF
THE

UNIVERSITY
OF

CALIFORNIA,
on
behalf
of
its
Davis
campus
(“UC
Davis”);

WEXFORD

DEVELOPMENT,
LLC,
a
Delaware
limited
liability
company,
and
its
permitted
assignees
under
this
Agreement
(the
“Developer”);
and
the
City
of
Sacramento,
a
California
municipal
corporation
and
charter
city
(the
“City”).

B.

The
effective
date
of
this
Agreement
is
February—,
2022.

C.

The
Developer
has
requested
the
financing
of
certain
public
capital
improvements
to
be
owned
by
UC
Davis
(collectively,
the
“Acquisition
Improvements”)
through
the
City
of
Sacramento
Aggie
Square
Community
Facilities
District
No.
2021-01
(Improvements)
(including
areas
annexed
from
time
to
time,
the
“Community
Facilities
District”
or
the
“CFD”)
under
and
pursuant
to
the
Mello-Roos
Community
Facilities
Act
of
1982—
California
Government
Code
Sections
53311
and
following
(the
“Act”).

D.

The
City,
by
and
through
the
Community
Facilities
District,
intends
to
levy
special
taxes
and
issue
bonds
to
fund,
among
other
things,
all
or
aportion
of
the
costs
of
the
Acquisition
Improvements.

The
portion
of
the
proceeds
of
the
bonds
allocable
to
the
cost
of
the
Acquisition
Improvements
and
all
amounts
deposited
in
the
Improvement
Fund
from
time
to
time,
together
with
interest
earned
thereon,
is
referred
to
herein
as
the
“Available
Amount”.

E.

The
City,
by
and
through
the
Community
Facilities
District,
intends
to
provide
financing
for
the
acquisition
by
UC
Davis
of
the
Acquisition
Improvements
and
the
payment
of
the
Acquisition
Price
(as
defined
herein)
of
the
Acquisition
Improvements
from
the
Available
Amount.

Attached hereto
as
Exhibit
A
is
a
description
of
the
Acquisition
Improvements
to
be
acquired
from
the
Developer.

F.

The
parties
anticipate
that,
upon
completion
of
the
Acquisition
Improvements
and
subject
to
the
terms
and
conditions
of
this
Agreement,
UC
Davis
will
acquire
the
completed
Acquisition
Improvements.

G.

Any
and
all
monetary
obligations
of
UC
Davis
arising
out
of
this
Agreement
are
the
special
and
limited
obligations
of
UC
Davis
payable
only
from
the
Available
Amount,
and
no
other
funds
whatsoever
of
UC
Davis
shall
be
obligated
therefor
under
any
circumstances.

H.

Attached
to
this
Agreement
is
Exhibit
A
(the
Acquisition
Improvements)
which
is
incorporated
into
this
Agreement
for
all
purposes.ARTICLE
I
BASIC
TERMS
Section

1.1. Recitals.

The
parties
hereby
agree
that
the
foregoing
recitals
are
incorporated
in
this
Agreement
as
though
fully
set
forth
herein.
2

Section

1.2. 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
UC
Davis
Representative
not
to
interfere
with
the
intended
use
and
therefore
are
not
required
to
be
cleared
from
the
title.
“Acquisition
Improvements”
means
the
public
capital
improvements
described
in
Exhibit
A
hereto.
“Acquisition
Price”
means,
for
each
Acquisition
Improvement
or
portion
of
an
Acquisition
Improvement,
the
following:
(1)
the
Actual
Cost,
plus
(2)
to
compensate
for
plan-
check
fees,
inspection
fees,
and
construction
financing
costs,
an
amount
equal
to
8%
of
the
amount
determined
under
clause
(1).

UC
Davis
shall
promptly
notify
the
Developer
in
writing
of
the
Acquisition
Price
once
UC
Davis
has
determined
it.
“Actual
Cost”
means
the
Developer’s
actually
paid
construction
cost
of
an
Acquisition
Improvement,
as
may
be
challenged
by
the
UC
Davis
Representative
pursuant
to
Section

2.2. “Actual
Cost
Certificate”
means
a
certificate
prepared
by
the
Developer
detailing
the
Developer’s
Actual
Costs,
as
may
be
challenged
by
the
UC
Davis
Representative
pursuant
to
Section

2.2. The
Developer
shall
include
with
its
Actual
Cost
Certificate
documentation
evidencing
cost
(which
includes
but
is
not
limited
to
invoices,
payment
vouchers,
accounting
journals,
and
copies
of
corresponding
financing
statements
associated
with
the
expenditure
of
capital
costs)
and
asummary
sheet
of
expenditures,
grouped
at
the
sub-project
level.
“Agreement”
means
this
Acquisition
Agreement,
dated
as
of
February_,
2022.
“Available
Amount”
shall
have
the
meaning
assigned
to
the
term
in
the
recitals.
“Bonds”
means
bonds
or
other
indebtedness
issued
by
the
City
by
means
of
the
Community
Facilities
District.
“City”
means
the
City
of
Sacramento,
California,
amunicipal
corporation
and
charter
city
and
all
the
territory
within
the
boundaries
thereof.
“Community
Facilities
District”
or
“CFD”
shall
have
the
meaning
assigned
to
the
term
in
the
recitals.“Developer”
means
Wexford
Development,
LLC,
aDelaware
limited
liability
company,
and
its
permitted
assignees
under
this
Agreement.
“Development
Guidelines”
means
Volumes
4 and
5 of
the
Facilities
Manual
for
the
University
of
California,
currently
available
at
https://www.ucop.edu/construction
services/facilities-manual/index.html,
and
incorporated
by
reference
herein.
3

“Disbursement
Request
Form”
means
a
requisition
for
payment
of
funds
from
the
Improvement
Fund
for
an
Acquisition
Improvement
signed
by
a
UC
Davis
Representative
in
substantially
the
form
of
Exhibit
C
to
this
Agreement.
“Improvement
Fund”
means
a
separate
fund
under
an
indenture
or
supplemental
indenture
under
which
Bonds
are
sold,
established
for
constructing
and
acquiring
the
Acquisition
Improvements.

Such
fund
may
be
formally
defined
as
the
Acquisition
and
Construction
Fund
in
the
indenture
for
the
Bonds,
which
is
anticipated
to
be
established
and
maintained
by
the
City.
“MFA”
means
the
Master
Funding
Agreement
dated
as
of
November
17,
2021,
between
UC
Davis,
the
Developer,
the
City
of
Sacramento
Aggie
Square
Enhanced
Infrastructure
Financing
District,
a
California
governmental
entity
formed
under
California
Government
Code
sections
53398.50
through
53398.8$,
and
the
City.
“Project”
means
the
Developer’s
development
of
the
property
in
the
Community
Facilities
District,
including
the
construction
of
the
Acquisition
Improvements
and
the
other
public
and
private
improvements
to
be
constructed
by
the
Developer
within
the
Community
Facilities
District.
“Title
Documents”
means,
for
each
Acquisition
Improvement
acquired
hereunder,
the
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
UC
Davis
of
the
Acquisition
Improvement
(including,
ifnecessary,
easements
for
ingress
and
egress)
and
abill
of
sale
or
similar
instrument
evidencing
transfer
of
title
to
the
Acquisition
Improvement
(other
than
said
real
property
interests)
to
UC
Davis,
where
applicable.
“UC
Davis
Representative”
means
the
Executive
Director
of
Real
Estate
Services
of
UC
Davis
or
such
other
person
as
notified
to
the
Developer
and/or
the
City,
as
applicable,
in
writing.

Section

1.3. Establishment
of
Community
Facilities
District.

The
City
has
formed
the
Community
Facilities
District
pursuant
to
the
Act
for
the
annual
levy
of
special
taxes
on
taxable
leasehold
property
within
the
Community
Facilities
District
(the
“CfD
Proceedings”).

UC
Davis
agrees
to
cooperate
with
the
City
and
the
Developer
on
the
annexation
of
property
designated
for
future
annexation
into
the
Community
Facilities
District
from
time
to
time.

Section

1.4. Administration
of
Community
Facilities
District.

The
City
shall
administer
the
CFD.

Administration
includes
the
following:
employing
and
paying
all
consultants,
annually
levying
the
special
tax,
paying
debt
service
on
the
bonds
and
otherwise
administering
the
bonds,
and
complying
with
all
California
and
federal
requirements
concerning
the
CFD
Proceedings
or
the
Bonds,
including
those
of
the
United
States
Internal
Revenue
Code,
as
amended
(the
“Code”).

UC
Davis
is
not
responsible
for
administration
and
will
not
participate
in
or
be
considered
aparticipant
in
the
CFD
Proceedings
other
than
as
a
party
to
this
agreement
and,
if
applicable,
as
alandowner
within
the
CFD.

Section

1.5. Cooperation
of
UC
Davis.

If
the
City
completes
issuance
and
sale
of
Bonds
through
the
CFD,
and
if
Bond
proceeds
become
available
to
finance
Acquisition
Improvements,
then
UC
Davis
shall
cooperate
with
the
City
to
disburse
the
Bond
proceeds
for
the
payment
and/or
reimbursement
of
the
Acquisition
Improvements.
4

Section

1.6. Sale
of
Bonds.

Before
the
City
issues
any
series
of
Bonds,
the
proceeds
of
which
are
intended
to
finance
Acquisition
Improvements,
UC
Davis
must
sign
and
deliver
to
the
City
acertificate
for
the
applicable
series
of
Bonds
substantially
in
the
form
set
forth
in
Exhibit
B
to
this
Agreement
(the
“UC
Davis
Certificate”),
so
that
bond
counsel
can
determine
(a)
whether
the
proceeds
of
the
Bonds
are
being
used
in
conformity
with
the
Act
and
(b)
whether
interest
on
the
Bonds
will
be
excluded
from
gross
income
under
Section
103
of
the
Code.

If
the
City
issues
Bonds
through
the
CFD,
and
if
UC
Davis
has
delivered
the
signed
UC
Davis
Certificate
to
the
City,
then
the
City
shall
make
Bond
proceeds
available
to
UC
Davis
for
the
Acquisition
Improvements
described
in
the
UC
Davis
Certificate.

Provided
that
Developer
has
complied
with
its
obligations
hereunder,
UC
Davis
agrees
to
execute
and
deliver
the
UC
Davis
Certificate
to
the
extent
the
facts
contained
therein
are
true
and
correct
at
that
time.

The
Developer
and
UC
Davis
agree
to
cooperate
and
use
reasonable
best
efforts
to
resolve
any
concerns
raised
by
the
underwriter
and/or
bond
counsel
in
conjunction
with
the
sale
of
Bonds
through
the
Community
Facilities
District.

Section

1.7. Sale
of
Bonds
and
Levy
of
Special
Taxes.

The
City
shall
proceed
in
good
faith
to
take
the
steps
required
or
suitable
for
the
levy,
collection
and
enforcement
of
the
special
taxes
for
the
CFD,
and
the
issuance,
sale,
delivery
and
administration
of
the
Bonds;
provided,
however,
the
City
shall
not
be
liable
for
any
failure
to
finance
Acquisition
Improvements
through
the
CFD.

Section

1.8. Cooperation
of
UC
Davis.

After
issuance
of
any
series
of
Bonds,
UC
Davis
will
cooperate
with
the
City
and
provide
documentation
to
the
City
related
to
the
use
of
Bond
proceeds
by
UC
Davis
on
Acquisition
Improvements
as
reasonably
requested
by
the
City
to
ensure
(a)
the
proceeds
of
the
Bonds
are
being
used
in
conformity
with
the
Act
and
(b)
the
interest
on
any
series
of
Bonds
intended
to
be
excluded
from
gross
income
under
Section
103
of
the
Code
will
continue
to
be
excluded.

Section

1.9. No
UC
Davis
Liability;
UC
Davis
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
UC
Davis
with
respect
to
this
Agreement
subject
the
City
or
UC
Davis
to
monetary
liability
therefor,
other
than
for
the
payment
to
the
Developer
of
the
Acquisition
Price
solely
from
the
Available
Amount.

Further,
nothing
in
this
Agreement
shall
be
construed
as
affecting
the
Developer’s,
the
City’s
or
UC
Davis’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,
the
City’s
and
UC
Davis’s
rights
and
obligations
under
this
Agreement.

ARTICLE
II

CONSTRUCTION
AND

ACQUISITION
OF

ACQUISITION

IMPROVEMENTS
Section

2.1. 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
UC
Davis.

In
order
to
assure
compliance
5

withthoseprovisions,theDeveloperagreestocomplywiththerequirementssetforthinthe DevelopmentGuidelinesincluding,withoutlimitation,withrespecttothebiddingand contractingfortheconstructionoftheAcquisitionImprovements.TheDeveloperagreesthat allthecontractsshallcallforpaymentofprevailingwagesasrequiredbytheLaborCodeof theStateofCalifornia.The Developer’sindemnificationobligationsetforthinSection3.1of thisAgreementshallalsoapplytoanyallegedfailuretocomplywiththerequirementsofthis Section2.1,and/orapplicableStatelawsregardingpubliccontractingandprevailingwages.

Section2.2.SaleofAcquisitionImprovements.TheDeveloperagreestoselltoUC Davis,andUCDavisagreestopurchasefromtheDeveloper,eachAcquisitionImprovement tobeconstructedbyDeveloper(includinganyrights-of-wayorothereasementsnecessaryfor theAcquisitionImprovements,totheextentnotalreadypubliclyowned),whentheAcquisition ImprovementiscompletedtothesatisfactionofUCDavisforanamountnottoexceedthe lesserof(i)theAvailableAmount(subjecttoSection2.4)or(ii)theAcquisitionPriceofthe AcquisitionImprovement.ExhibitA,attachedheretoandincorporatedherein,containsalist oftheAcquisitionImprovements.AtthetimeofcompletionofeachAcquisitionImprovement, theDevelopershalldelivertotheUCDavisRepresentativeawrittenrequestforacquisition, accompaniedbyanActualCostCertificate,andbyexecutedTitleDocumentsforthetransfer oftheAcquisitionImprovementwherenecessary.IntheeventthattheUCDavis RepresentativefindsthatthesupportingpaperworksubmittedbytheDeveloperfailsto demonstratetherequired relationshipbetweenthesubjectActualCostandeligiblework,the UCDavisRepresentativeshalladvisetheDeveloperthatthedeterminationofthe ActualCost (orthe ineligibleportionthereof)hasbeendisallowedandshallrequestfurtherdocumentation fromtheDeveloper.Ifthefurtherdocumentationisstillnotadequate,theUCDavis RepresentativemaychallengetheActualCostCertificatetodisputetheamountsclaimed,and iftheDeveloperdisagreeswithsuchdetermination,suchdisputeshallbesubjecttothedispute resolutionprovisionsofSection3.16.

CertainsoflcostsfortheAcquisitionImprovementsmayhavebeenincurredpursuantto singlecontractsthatincludeworkrelatingalsototheprivateportionsoftheProject.Inthose instances,thetotalcostsundersuchcontractswillbe allocatedtoeachAcquisitionImprovement asapprovedbytheUCDavis Representative.Whereaspecificcontracthasbeenawardedforsoft costsrelatingsolelytoanAcquisitionImprovement,onehundredpercent(100%)ofthecosts underthecontractwillbeallocatedtothatAcquisitionImprovement.Costswillbeallocatedto eachAcquisitionImprovementasapprovedbytheUCDavisRepresentative.Thecostsofcertain environmentalmitigationrequiredtomitigateimpactsofthepublicandprivateportionsofthe ProjectwillbeallocatedtoeachAcquisitionImprovementasapprovedbytheUCDavis Representative.

Section2.3.ConditionsPrecedenttoPaymentofAcquisitionPrice.Paymenttothe DeveloperoritsassigneeoftheAcquisitionPriceforanAcquisitionImprovementfromthe ImprovementFundshallineverycasebeconditionedfirstuponthedeterminationoftheUC Davis,pursuanttoSection2.2,thattheAcquisitionImprovementiscompleteandreadyfor acceptancebyUCDavisinaccordancewiththeDevelopmentGuidelines,andshallbefurther conditioneduponsatisfactionofthefollowingadditionalconditionsprecedent:
6

(a)
To
the
extent
that
there
are
unfunded
or
unreimbursed
actual
UC
Davis
expenses
for
review,
inspection,
and
project
management
pertaining
to
the
Acquisition
Improvements,
UC
Davis
may
submit
arequest
to
the
City
to
reimburse
itself
for
those
expenses
from
proceeds
of
the
Bonds
or
from
special-tax
revenues
prior
to
payment
of
the
Acquisition
Price.
(5)
The
Developer
shall
certify
to
its
knowledge
that
it
has
complied
with
the
Development
Guidelines
with
respect
to
the
Acquisition
Improvement
to
be
acquired.
(c)
The
Developer
shall
have
provided
UC
Davis
with
lien
releases
or
other
similar
documentation
satisfactory
to
the
UC
Davis
Representative
as
evidence
that
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
related
to
contracts
to
which
the
Developer
is
aparty.
(d)
The Developer
shall
be
current
in
the
payment
of
all
due
and
payable
general
property
taxes,
possessory
interest
taxes,
and
all
special
taxes
of
the
Community
facilities
District,
on
property
owned
by
the
Developer
as
a
leasehold
interest
within
the
Community
Facilities
District.
(e)
The
Developer
shall
certify
that
to
its
actual
knowledge
it
is
not
in
default
with
respect
to
any
loan
secured
by
any
interest
in
the
Project.
(f)
The
Developer
shall
have
provided
UC
Davis
with
Title
Documents
needed
to
provide
UC
Davis
with
title
to
the
site,
right-of-way,
or
easement
upon
which
the
subject
Acquisition
Improvement
is
situated,
if
determined
necessary
by
the
UC
Davis
Representative.

All
such
Title
Documents
shall
be
in
aform
acceptable
to
the
UC
Davis
Representative
and
shall
convey
Acceptable
Title.

If
determined
necessary
by
UC
Davis,
the
Developer
shall
provide
apolicy
of
title
insurance
as
of
the
date
of
transfer
in
aform
acceptable
to
the
UC
Davis
Representative
and
the
counsel
to
UC
Davis
insuring
UC
Davis
as
to
the
interests
acquired
in
connection
with
the
acquisition
of
any
interest
for
which
such
apolicy
of
title
insurance
is
not
required
by
another
agreement
between
UC
Davis
and
the
Developer.

Each
title
insurance
policy
required
hereunder
shall
be
in
the
amount
equal
to
the
Acquisition
Price.

Section

2.4. Disbursement
Request
Form.

Upon
a
determination
by
the
UC
Davis
Representative
to
pay
the
Acquisition
Price
of
an
Acquisition
Improvement
pursuant
to
Section

2.3,
the
UC
Davis
Representative
shall
cause
aDisbursement
Request
Form
to
be
submitted
to
the
City.

The
City
shall
promptly
request
from
the
Developer
and
UC
Davis
any
additional
documents
or
back-up
information
reasonably
necessary,
in
the
opinion
of
the
City,
to
process
the
disbursement
of
Available
Amounts
pursuant
to
the
Disbursement
Request
Form.

In
the
event
that
the
Actual
Cost
of
an
Acquisition
Improvement
is
in
excess
of
the
Available
Amount,
the
City
shall
withdraw
all
funds
remaining
in
the
Improvement
Fund
and
shall
7

transfer
those
amounts
to
or
upon
the
order
of
UC
Davis,
in
accordance
with
the
applicable
Disbursement
Request
Form.

The
unpaid
portion
of
the
Actual
Cost
shall
be
paid
from
funds
that
may
subsequently
be
deposited
in
the
Improvement
Fund
from
asubsequent
issuance
of
Bonds
or
from
any
amounts
subsequently
deposited
into
the
Improvement
Fund
pursuant
to
the
MFA
or
otherwise,
if
either
of
those
occurs.

The
Developer’s
reimbursement
under
this
Agreement
will
be
solely
from
proceeds
of
the
Bonds,
and
interest
earnings
thereon.

The
Developer
is
not
entitled
by
this
Agreement
or
otherwise
to
reimbursement
for
sums
advanced
or
expenditures
made
by
the
Developer
under
this
Agreement,
whether
for
the
Acquisition
Improvements,
or
the
maintenance
of
any
land
or
Acquisition
Improvements,
from
any
of
the
following:
the
City’s
general
fund,
any
other
City
funds,
the
City’s
taxing
power,
or
the
City’s
other
assets.

Costs
of
the
Acquisition
Improvements
or
any
portion
thereof
in
excess
of
the
Available
Amount
will
be
the
Developer’s
sole
responsibility,
except
that
the
Developer
may
apply
cost
savings
from
any
portion
of
the
Acquisition
Improvements
to
another
portion.

Nothing
in
this
paragraph
shall
prevent
Developer
from
receiving
reimbursement
as
otherwise
permitted
under
the
terms
of
the
MFA.

Section

2.5. Limitation
on
Obligations.

In
no
event
shall
UC
Davis
or
the
City
be
required
to
pay
the
Developer
or
its
assignee
more
than
the
Available
Amount,
consisting
of
proceeds
of
Bonds
and
other
amounts
deposited
to
the
Improvement
Fund
from
time
to
time
pursuant
to
the
MFA.

ARTICLE
III

MISCELLANEOUS
Section

3.1. Indemnification
and
Hold
Harmless
by
Developer.

The
Developer
hereby
assumes
the
defense
of,
and
indemnifies
and
holds
harmless
UC
Davis
and
its
officers,
directors,
employees
and
agents
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
the
design,
engineering,
construction,
and
installation
of
the
Acquisition
Improvements
by
the
Developer
or
any
contracts
for
the
design,
engineering,
construction,
and
installation
of
the
Acquisition
Improvements
entered
into
by
the
Developer
or
on
behalf
of
the
Developer
or
arising
out
of
any
alleged
misstatements
of
fact
or
alleged
omission
of
amaterial
fact
made
by
the
Developer,
its
officers,
directors,
employees
or
agents
to
the
City’s
staff,
City’s
underwriter,
financial
advisor,
appraiser,
appraisal
reviewer,
special
tax
consultant,
disclosure
counsel,
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
Community
Facilities
District
financing
(provided
that
the
Developer
shall
have
been
furnished
acopy
of
any
offering
material
for
the
Bonds
and
shall
not
have
objected
thereto);
and
provided,
further,
that
nothing
in
this
Section

3.1 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

3.1,
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

3.1 shall
be
understood
or
construed
to
mean
that
the
Developer
agrees
to
indemnify
8

UC
Davis
or
any
of
its
officers,
directors,
employees
or
agents,
for
any
wrongful
acts
or
omissions
to
act
of
UC
Davis
or
its
officers,
employees,
agents
or
any consultants
or
contractors,
and
for
any
wrongful
acts,
willful
misconduct,
active
negligence
or
omissions
to
act
of
UC
Davis,
or
its
officers,
employees,
agents
or
any
consultants
or
contractors.

Section

3.2. Indemnification
and
Hold
Harmless
by
City.

The
City
shall
indemnify,
defend,
protect,
and
hold
harmless
UC
Davis
and
UC
Davis’s
officers,
employees,
and
agents
from
and
against
all
liabilities,
claims,
demands,
damages,
and
costs
(including
reasonable
attorneys’
fees
and
litigation
costs
through
final
appeal)
that
arise
out
of
the
following:
the
CFD
Proceedings;
the
authorization
for,
and
implementation
of,
the
levy,
collection,
and
enforcement
of
the
CFD’s
special
tax;
the
authorization
for,
and
initial
disclosure
with
respect
to,
the
issuance,
sale,
and
administration
of
the
Bonds;
any
continuing-disclosure
obligations
relating
to
the
Bonds;
any
arbitrage
or
rebate
issues
relating
to
the
Bonds
under
federal
tax
law.

Section

3.3. UC
Davis’
Responsibilities
and
Indemnification.

UC
Davis
shall
administer
and
take
full
governmental
responsibility
for
construction
or
acquisition
of
Acquisition
Jmprovements
financed
with
the
Bonds
as
if
under
the
direction
and
supervision,
or
under
the
authority
of,
UC
Davis,
and
the
City
shall
have
no
responsibility
therefor.

UC
Davis
reserves
the
right
to
contract
with
athird
party
for
all
or
any
portion
of
the
construction
of
the
Acquisition
Improvements.

UC
Davis
shall
indemnify,
defend,
protect,
and
hold
harmless
the
City
and
the
City’s
officers,
employees,
and
agents
as
well
as
the
CFD
and
its
officers,
employees,
and
agents
from
and
against
all
liabilities,
claims,
demands,
damages,
and
costs
(including
reasonable
attorneys’
fees
and
litigation
costs
through
final
appeal)
that
arise
out
of
the
design,
engineering,
construction,
or
installation
of
the
Acquisition
Improvements
financed
in
whole
or
part
with
the
Bonds.

Section

3.4. Indemnification
and
Hold
Harmless
by
UC
Davis.

UC
Davis
will
have
ownership
and
maintenance
responsibility
for
all
Acquisition
Improvements
acquired
or
constructed
with
the
Bonds.

UC
Davis
shall
indemnify,
defend,
protect,
and
hold
harmless
the
City
and
the
City’s
officers,
employees,
and
agents
from
and
against
all
liabilities,
claims,
demands,
damages,
and
costs
(including
reasonable
attorneys’
fees
and
litigation
costs
through
final
appeal)
that
arise
out
of
the
use
or
maintenance
of
those
facilities.

Section

3.5. Audit.

UC
Davis
shall
have
the
right,
during
normal
business
hours
and
upon
the
giving
of
10 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.

The
Developer
may
provide
access
to
all
such
books
and
records
by
electronic
means.

Section

3.6. Cooperation.

UC
Davis
and
the
Developer
agree
to
cooperate
with
respect
to
the
completion
of
the
financing
of
the
Acquisition
Improvements
by
the
City
through
the
levy
of
the
Community
Facilities
District
special
taxes
and
issuance
of
Bonds.

UC
Davis
and
the
Developer
agree
to
meet
in
good
faith
to
resolve
any
differences
on
future
matters
which
are
not
specifically
covered
by
this
Agreement.
9

Section

3.7. 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
adifferent
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.

Section

3.8. Third
Party
Beneficiaries.

It
is
expressly
agreed
that
there
are
no
third
party
beneficiaries
of
this
Agreement,
including
without
limitation
any
owners
of
bonds,
any
of
UC
Davis’s
or
the
Developer’s
contractors
for
the
Acquisition
Improvements
and
any
of
the
City’s,
UC
Davis’s
or
the
Developer’s
agents
and
employees.

Section

3.9. Conflict
with
Other
Agreements.

Nothing
contained
herein
shall
be
construed
as
releasing
the
Developer
or
UC
Davis
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,
UC
Davis
and
the
Developer.

Section

3.10. Notices.

All
invoices
for
payment,
reports,
other
communication
and
notices
relating
to
this
Agreement
shall
be
mailed
to:

If
to
UC
Davis:UC
Davis
Real
Estate
Services
255
Cousteau
Place
Davis,
California
95616
Attention:

Executive
Director,
Real
Estate
Services
If
to
the
Developer:Wexford
Development,
LLC
$01
W.

Baltimore
Street,
Suite
505
Baltimore,
Maryland
21201
Attention:

Danielle
Howarth,
Senior
Vice
President
and
General
Counsel
and
Mark
Korczakowski,
Senior
Vice
President,
Asset
Management
If
to
the
City:City
of
Sacramento
Office
of
the
City
Treasurer
915
“I”
Street,
HCH,
3rd
Floor
Sacramento,
CA
95814
Attn:

Brian
Wong,
Debt
Manager
e-mail:
[email protected]
10

Any
party
may
change
its
address
by
giving
notice
in
writing
(which
may
be
delivered
by
electronic
means)
to
the
other
parties.

Section

3.11. Severability.

If
any
part
of
this
Agreement
is
held
to
be
illegal
or
unenforceable
by
acourt
of
competent
jurisdiction,
the
remainder
of
this
Agreement
shall
be
given
effect
to
the
fullest
extent
reasonably
possible.

Section

3.12. 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.

Section

3.13. Waiver.

Failure
by
aparty
to
insist
upon
the
strict
performance
of
any
of
the
provisions
of
this
Agreement
by
the
other
party,
or
the
failure
by
aparty
to
exercise
its
rights
upon
the
default
of
the
other
party,
shall
not
constitute
awaiver
of
such
party’s
right
to
insist
and
demand
strict
compliance
by
the
other
party
with
the
terms
of
this
Agreement.

Section

3.14. 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.

Section

3.15. Counterparts.

This
Agreement
may
be
executed
in
counterparts,
each
of
which
shall
be
deemed
an
original.

Section

3.16. 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
(including
with
respect
to
leasehold
interests)
within
the
District
and
except
that
amounts
received
by
Developer
(or
its
permitted
successor-in-interest)
hereunder
in
payment
of
the
Acquisition
Price
may
be
assigned
to
a
lender
as
collateral.

In
the
event
there
is
an
assignment,
the
Developer
shall
notify
the
City
in
writing
of
said
assignment
within
10 days
of
such
assignment
being
made.Section

3.17. Amendments.

This
Agreement
may
be
amended
by
another
written
agreement
signed
by
the
parties,
except
that
an
amendment
may
not
be
made
afier
issuance
of
any
series
of
Bonds
if,
in
the
judgment
of
the
City,
which
determination
will
not
be
unreasonably
conditioned,
withheld
or
delayed,
would
be
detrimental
to
the
interests
of
the
Bondholders
unless
all
of
the
Bondholder-consent
provisions
for
amendment
of
the
Bond
resolutions,
Bond
indentures,
or
similar
instruments
governing
the
issuance,
delivery,
and
administration
of
the
outstanding
Bonds
have
been
satisfied.

Section

3.18. Remedies
in
General.

It
is
acknowledged
by
the
parties
that
neither
UC
Davis
nor
the
City
would
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
owing
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
UC
Davis
or
the
City.

The
City
is
entering
into
this
Agreement
for
the
sole
purpose
of
being
afunding
source
for
the
Acquisition
Improvements
to
the
limited
extent
described
herein.
11

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
and
UC
Davis
shall
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
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,
absent
willful
misconduct
or
fraud
on
the
part
of
the
City
or
UC
Davis.

Section

3.19. Entire
Agreement.

For
the
avoidance
of
doubt,
this
Agreement
shall
supersede
and
supplant
any
prior
version
of
this
Agreement
to
which
the
parties
hereto
were
previously
bound.

Section

3.20. Term
of
Agreement.

This
Agreement
will
remain
in
force
until
all
of
the
Bonds
have
been
retired
and
the
authority
to
levy
the
special
tax
conferred
by
the
CFD
Proceedings
has
ended
or
is
otherwise
terminated.

Section

3.21. Dispute
resolution.

If
any
dispute
arises
between
parties
to
this
Agreement
as
to
its
subject
matter,
the
parties
shall
first
attempt
to
resolve
the
dispute
among
themselves
and
shall
meet
and
confer
in
good
faith
to
provide
all
information
relevant
to
the
dispute
so
that
the
parties
will
have
adequate
information
to
resolve
the
dispute.

If
the
parties
are
unable
to
resolve
the
dispute
among
themselves,
then
the
parties
shall
attempt
in
good
faith
to
resolve
the
dispute
by
mediation
conducted
in
accordance
with
the
Commercial
Mediation
Rules
of
the
American
Arbitration
Association.

A
party
may
resort
to
legal
action
only
if
the
parties
are
unable
to
resolve
any
dispute
among
themselves
or
by
mediation.

Section

3.22. Electronic
Signatures.

Each
of
the
parties
hereto
agrees
that
the
transaction
consisting
of
this
agreement
may
be
conducted
by
electronic
means.

Each
party
agrees,
and
acknowledges
that
it
is
such
party’s
intent,
that
if
such
party
signs
this
agreement
using
an
electronic
signature,
it
is
signing,
adopting,
and
accepting
this
agreement
and
that
signing
this
agreement
using
an
electronic
signature
is
the
legal
equivalent
of
having
placed
its
12

handwritten
signature
on
this
agreement
on
paper.

Each
party
acknowledges
that
it
is
being
provided
with
an
electronic
or
paper
copy
of
this
agreement
in
ausable
format.

IN

WITNESS

WHEREOF,
the
parties
have
executed
this
Agreement
as
of
the
day
and
year
written
above.

THE

REGENTS
OF
THE

UNIVERSITY
OF
CALIFORNIABy4%%
4?t
Nathan
rostrom,
E
cutive
Vice
President—
Chief
Financial
Officer

WEXFORD

DEVELOPMENT,
LLC
By
_____________________________Douglas
Woodruff,
Senior
Vice
President
CITY
OF

SACRAMENTO
By
________________________Howard
Chan,
City
Manager
ATTEST:By:
_______________________City
Clerk
Reviewed
by
Sacramento
City
Attorney
By:
___________________Senior
Deputy
City
Attorney
13

13 WEXFORD DEVELOPMENT, LLC
By ______________________________________
Douglas Woodruff, Senior Vice President

CITY OF SACRAMENTO
By ______________________________________
Howard Chan, City Manager
ATTEST:

By:

City Clerk
Reviewed by Sacramento City Attorney
By: ____________________________
Senior Deputy City Attorney
Thirty

EXHIBITA

ACQUISITIONIMPROVEMENTS
Improvements(UCDavisOwned)BudgetedAmounts
AggieSquaredevelopment’$3,396,276
MarketSquaredevelopment”$2,105,060
SiteDevelopment1”$10,598,729
SubTotal$16,100,065
Plan-checkfees,inspectionfees,andconstructionfinancingcosts$1,288,005 allowance(8%)
Total$17,388,070
‘Hardscapeandsoftscapeforthecentraloittdoorplaza,includingbutnotlimitedtolandscaping, seating,etc.

Hardscapeandsoftscapeforthesecondaryoutdoorplaza;includingbutnotlimitedtolandscaping,seating,etc.

Grottnd-leveland subterraneanworkfortheProject,includedbittnotlimitedto:roads,curbs,andsidewalks,main utilityandsewerbranch lineplumbing,existingsitedemolition,stormdrains,etc.

EXHIBITB

CERTIFICATEOFTHEREGENTSOFTHEUNIVERSITYOFCALIFORNIA
Thiscertificateisbeingdeliveredtothe CityofSacramento(the“City”)byTHE REGENTSOFTHEUNIVERSITYOFCALIFORNIA,actingonbehalfofitsDaviscampus (“UCDavis”)inconnectionwiththeissuancebytheCityofitsCityofSacramentoAggie SquareCommunityFacilitiesDistrictNo.2021-01(Improvements)SpecialTaxBonds,Series ______
(the“Bonds”).

Background
A.On
___________,
2022,UCDavis,WexfordDevelopment,LLCandtheCity
enteredintoanAcquisitionAgreement(the“Agreement”)withrespecttotheCityof SacramentoAggieSquareCommunityFacilitiesDistrictNo.2021-01(Improvements)(the “CFD”),whichwasformedpursuanttosection53316.2oftheMello-RoosCommunityFacilities Actof1982(the“Act”).

B.ThepublicfacilitiestobefinancedbytheCFD,includingpublicfacilities financedbyfees,aredescribedinExhibitBtotheResolutionofFormationadoptedbytheCity CounciloftheCityfortheCFD(the“Improvements”).

C.AportionoftheImprovementswillbeownedoroperatedbyUCDavis(such portionbeingthe“AcquisitionImprovements”),andtheCityproposestoissueandsellbonds oftheCFDtofinancesomeofalloftheAcquisitionImprovements.

D.ThiscertificateisbeingexecutedbyUCDavistoprovideassurancetotheCity andtheCity’sbondcounselthatproceedsoftheBondsanticipatedtobedeliveredto,oron behalfof,UCDavisinanamountnottoexceed$_____________willbeutilizedbyUCDavisin conformancewiththeActandlawsandregulationsapplicabletothecontinuedtax-exemptstatus ofthe Bonds.

Representations,WarrantiesandCertifications

1.AsrequiredbySection53313.5oftheAct,UCDavisrepresents,warrantsand covenantsthattheAcquisitionImprovementsbeingfinancedbytheBondswereconstructedor willbeconstructedasiftheyhadbeenconstructedunderthedirectionandsupervision,orunder theauthorityof,UCDavis,asthelocalagencythatwillownand/oroperatetheAcquisition ImprovementsbeingfinancedbytheBonds.

2.Onthedatehereof,UCDavishasareasonableexpectationofspendingthe proceedsoftheBondsdeliveredtoUCDaviswithin3yearsfromthedateofissuanceofthe BondsonAcquisitionImprovements,whicharepubliccapitalimprovementsownedand/or operatedbyUCDavis.

3.ProceedsoftheBondsdeliveredtoUCDavisareanticipatedtobeusedtoacquire theAcquisitionImprovementsdescribedinSchedule1attachedhereto(the“Projects”).Ifthe identityofanytheProjectschanges,UCDaviswillpromptlynotifytheCitythereofandtimely

update
this
Certificate,
as
and
to
the
extent
requested
by
the
City
to
ensure
that
(a)
proceeds
of
the
Bonds
continue
to
be
used
in
confonTlity
with
the
Act
and
(b)
interest
on
the
Bonds
continues
to
be
excluded
from
gross
income
under
Section
103
of
the
Code
to
the
same
extent
as
on
the
date
of
the
issuance
of
the
Bonds.

4. The
Projects
consist
of
public
capital
improvements
owned
by
UC
Davis
that
are
reasonably
expected
to
be
owned
by
UC
Davis
for
the
entire
useful
life
of
the
Projects
(or
the
final
maturity
of
the
Bonds,
if
shorter).

The
average
expected
useful
life
of
the
Projects
is
at
least
20 years.

5. UC
Davis
will
not
allow
more
than
10%
(or
5%
for
unrelated
or
disproportionate
use)
of
the
proceeds
of
the
Bonds
or
of
the
Projects
financed
with
such
proceeds
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 more
than
the
lesser
of
5%
or
$5,000,000
of
the
proceeds
of
the
Bonds
(all
within
the
meaning
of
Section
141
of
the
Code).

All
of
the
Projects
will
be
used
in
the
performance
of
governmental
functions
of
UC
Davis
or
another
state
or
local
government
agency.

6. UC
Davis
understands
that
the
City
will
rely
on
this
certificate
for
purposes
of
making
certain
representations
to
the
City’s
bond
counsel
in
connection
with
issuance
of
the
Bonds.

Dated:
___________,
20 THE

REGENTS
OF
THE

UNIVERSITY
OF
CALIFORNIABy:
________________________

EXHIBIT
C

DISBURSEMENT

REQUEST
FORM
To:City
of
Sacramento
Office
of
the
City
Treasurer
915
“I”
Street,
HCH,
3rd
floor
Sacramento,
CA
95814
Attn:

Debt
Manager
or
submitted
via
e-mail
to:

Brian
Wong,
Debt
Manager
[email protected]
Re:

Acquisition
Agreement
by
and
among
The
Regents
of
the
University
of
California,
Wexford
Development,
LLC,
and
City
of
Sacramento,
dated,
2022
The
undersigned,
a
duly
authorized
representative
of
The
Regents
of
the
University
of
California,
on
behalf
of
its
Davis
campus
(“UC
Davis”),
hereby
requests
adisbursement
of
an
“Available
Amount”
held
by
the
City
of
Sacramento
(the
“City”)
pursuant
to
the
above-
referenced
Acquisition
Agreement
(the
“Agreement”)
as
follows:

Amount:Payee:
[The
Regents
of
the
University
of
California]
Purpose:
reimbursement
of
administrative
costs
Wiring
Instructions:
___________________________
Amount:Payee:Purpose:
payment
of
the
Acquisition
Price
of
Acquisition
Improvements
Wiring
Instructions:
___________________________
The
undersigned
hereby
additionally
certifies
as
follows:

1. These
funds
have
been
or
will
be
spent
as
of
the
date
indicated
below
or
within
5 days
thereafter
to
pay
or
reimburse
UC
Davis
for
actual
administrative
expense
and/or
to
acquire

and/or
construct
Acquisition
Improvements,
and
this
disbursement
is
not
being
made
for
the
purpose
of
reinvestment.

2. None
of
the
expenditures
for
which
payment
is
requested
have
been
reimbursed
previously
from
other
sources
of
funds.

3. If
the
total
amount
above
is
greater
than
the
“Available
Amount”
held
by
the
City
pursuant
to
the
Agreement,
the
City
is
authorized
to
amend
the
amount
requested
to
be
equal
to
the
Available
Amount.

The
City
shall
first
reimburse
actual
administrative
costs
before
disbursements
for
payment
of
the
Acquisition
Price
of
Acquisition
Improvements.

4. Certain
amounts
being
disbursed
pursuant
to
this
request
are
being
used
to
pay
the
Acquisition
Price
for
Acquisition
Improvements.

UC
Davis
will
own,
and
for
the
entire
useful
life
of
such
Acquisition
Improvements
reasonably
expects
to
own,
all
of
such
Acquisition
Improvements.

The
Acquisition
Improvements
are
described
in
the
attached
back-up
documentation.

5. To
the
extent
any
of
the
Acquisition
Improvements
being
financed
with
the
proceeds
of
this
requisition
are
sold
to
an
entity
that
is
not
aState
or
local
government
agency,
UC
Davis
will
seek
the
advice
and
approval
of
bond
counsel
to
the
City
prior
to
any
such
sale.

UC
Davis
will
not
allow
more
than
10%
(or
5%
for
unrelated
or
disproportionate
use)
of
such
Acquisition
Improvements
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).

All
of
such
Acquisition
Improvements
will
be
used
in
the
performance
of
governmental
functions
of
UC
Davis
or
another
State
or
local
government
agency.

The
average
expected
useful
life
of
such
Acquisition
Improvements
is
at
least
_____
years.

The
representations
and
covenants
contained
in
this
paragraph
are
intended
to
support
the
conclusion
that
the
interest
paid
on
the
bonds
issued
to
finance
the
Acquisition
Improvements
is
excluded
from
gross
income
for
federal
income
tax
purposes
under
Section
103
of
the
Internal
Revenue
Code,
as
amended.

Dated:
__________,
20 THE

REGENTS
OF
THE

UNIVERSITY
OF
CALIFORNIABy:
________________________
[Attach
back-up
documentation.

Such
documentation
includes
but
is
not
limited
to
invoices,
payment
vouchers,
accounting
journals,
and
copies
of
corresponding
financing
statements
associated
with
the
expenditure
of
capital
costs
funded
from
proceeds
of
Bonds
issued
for
the
CFD;
and
it
must
include
asummary
sheet
of
expenditures,
grouped
at
the
sub-project
level.]