HomeMy WebLinkAbout2020-080 - Authorizing the City to Join the Statewide Community Infrastructure ProgramRESOLUTION NO.2020-080
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
SANTA ANA AUTHORIZING THE CITY TO JOIN THE
STATEWIDE COMMUNITY INFRASTRUCTURE PROGRAM
FOR COMMUNITY FACILITIES DISTRICTS; AUTHORIZING
THE CALIFORNIA STATEWIDE COMMUNITIES
DEVELOPMENT AUTHORITY TO ACCEPT APPLICATIONS
FROM PROPERTY OWNERS, CONDUCT SPECIAL
ASSESSMENT PROCEEDINGS AND LEVY ASSESSMENTS
AND TO FORM COMMUNITY FACILITIES DISTRICTS
WITHIN THE TERRITORY OF THE CITY OF SANTA ANA;
EMBODYING A JOINT COMMUNITY FACILITIES
AGREEMENT SETTING FORTH THE TERMS AND
CONDITIONS OF COMMUNITY FACILITIES DISTRICT
FINANCINGS; APPROVING FORM OF ACQUISITION
AGREEMENT FOR USE WHEN APPLICABLE; AND
AUTHORIZING RELATED ACTIONS
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS
FOLLOWS:
Section 1. The City Council of the City of Santa Ana hereby, finds, determines and
declares as follows:
A. The California Statewide Communities Development Authority (the "Authority") is
a joint exercise of powers authority lawfully formed and operating within the State
pursuant to an agreement (the "Joint Powers Agreement') entered into as of June
1, 1988 under the authority of Title 1, Division 7, Chapter 5 (commencing with
Section 6500) of the California Government Code (the "JPA Law") the members
of which include numerous cities, counties and local agencies in the State of
California, including the City of Santa Ana (the "City"); and
B. The Joint Powers Agreement authorizes the Authority to undertake financing
programs under any applicable provisions of State law to promote economic
development, the stimulation of economic activity, and the increase of the tax
base within the jurisdictional boundaries of its members (such members, the
'Program Participants"); and
C. The Authority has established the Statewide Community Infrastructure Program
("SCIP") to allow the financing of certain public capital improvements to be
constructed by or on behalf of property owners for acquisition by the City or
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another public agency (the 'Improvements") and improvements eligible for
funding from certain development impact fees (the "Fees') levied in accordance
with the Mitigation Fee Act (California Government Code Sections 66000 and
following) and other authority providing for the levy of fees on new development
to pay for public capital improvements (collectively, the "Fee Act") through the
levy of special assessments pursuant to the Municipal Improvement Act of 1913
(Streets and Highways Code Sections 10000 and following) (the "1913 Act") and
the issuance of improvement bonds (the "Local Obligations") under the
Improvement Bond Act of 1915 (Streets and Highways Code Sections 8500 and
following) (the 1915 Act") upon the security of the unpaid special assessments;
and
D. The "Mello -Roos Community Facilities Act of 1982," being Chapter 2.5, Part 1,
Division 2, Title 5 (beginning with Section 53311) of the Government Code of the
State (the "Mello -Roos Act") is an applicable provision of State law available to,
among other things, finance public improvements necessary to meet increased
demands placed upon local agencies as a result of development; and
E. The Authority also uses SCIP to allow the financing of Fees and Improvements
through the levy of special taxes and the issuance of Local Obligations under the
Mello -Roos Act upon the security of the special taxes; and
F. The City desires to allow the owners of property being developed within its
jurisdiction ('Participating Developers) to participate in SCIP and to allow the
Authority to conduct proceedings and to form community facilities districts
("CFDs") and to issue Local Obligations under the Mello -Roos Act, as well as to
conduct assessment proceedings to form assessment districts ("Assessment
Districts") under the 1913 Act and to issue Local Obligations under the 1915 Act,
to finance Fees levied on such properties and Improvements, provided that such
Participating Developers voluntarily agree to participate and consent to the levy
of such assessment or special taxes, as applicable; and
G. From time to time when eligible property owners within the jurisdiction of the City
elect to be Participating Developers, the Authority will conduct proceedings under
the 1913 Act and the Mello -Roos Act and issue Local Obligations under the 1915
Act and the Mello -Roos Act to finance Fees payable by such property owners and
Improvements and, at the conclusion of such proceedings, will levy assessments
or special taxes, as applicable, on such property within the territory of the City;
and
H. Both the Authority and the City are 'local agencies" under the Mello -Roos Act;
and
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The Mello -Roos Act permits two or more local agencies to enter into a joint
community facilities agreement to exercise any power authorized by the Mello -
Roos Act; and
J. The City desires to enter into such an agreement with the Authority to authorize
the Authority to form CFDs from time to time within the territorial limits of the City
to Fees payable by such property owners and Improvements; and
K. There has been presented to this meeting a proposed form of Resolution of
Intention to be adopted by the Authority in connection with assessment
proceedings (the "ROI"), a copy of which is attached hereto as Exhibit A, and the
territory within which assessments may be levied for SCIP (provided that each
Participating Developer consents to such assessment) shall be coterminous with
the City's official boundaries of record at the time of adoption of such ROI (the
"Proposed Boundaries"), and reference is hereby made to such boundaries for
the plat or map required to be included in this Resolution pursuant to Section
10104 of the Streets and Highways Code; and
L. There has also been presented to this meeting a proposed form of Acquisition
Agreement (the "Acquisition Agreement"), a copy of which is attached hereto as
Exhibit B, to be approved as to form for use with respect to any Improvements to
be constructed and installed by a Participating Developer and for which the
Participating Developer requests acquisition financing through the Mello -Roos
Act as part of its SCIP for CFDs application; and
M. The City will not be responsible for the conduct of any proceedings; the levy or
collection of assessments or special taxes or any required remedial action in the
case of delinquencies in such assessment or special tax payments; or the
issuance, sale or administration of the Local Obligations or any other bonds
issued in connection with SCIP; and
N. The Authority will issue revenue bonds pursuant to the Marks -Roos Local Bond
Pooling Act of 1985 (the "Marks -Roos Act") to acquire the Local Obligations and
thereby provide the proceeds to finance the Fees and Improvements; and
O. Pursuant to Government Code Section 6586.5, notice was published at least five
days prior to the adoption of this resolution at a public hearing, which was duly
conducted by this City Council concerning the significant public benefits of SCIP
for CFDs and the financing of the Improvements and the public capital
improvements to be paid for with the proceeds of the Fees.
Section 2. The recitals set forth herein are true and correct
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Section 3. This resolution shall constitute full "local approval," under Section 9 of
the Joint Powers Agreement, and under the Authority's Local Goals and Policies (defined
below), for the Authority to undertake and conduct proceedings in accordance herewith and
under the Mello Roos Act to form CFDs with boundaries that shall be coterminous with the
City's official boundaries of record at the time of such proceedings or any portion thereof
(the "Proposed Boundaries"), and to authorize a special tax and to issue bonds with respect
thereto; provided that the Participating Developers, who shall be the legal owners of such
property at the time of formation of the CFD, execute a written consent to the levy of special
tax in connection with SCIP by the Authority and execute a ballot in favor of the formation of
such CFD and the Mello -Roos Act.
Section 4. The City hereby consents to the conduct of special assessment
proceedings by the Authority in connection with SCIP pursuant to the 1913 Act and the
issuance of Local Obligations under the 1915 Act on any property within the Proposed
Boundaries; provided that:
(1) Such proceedings are conducted pursuant to one or more Resolutions of
Intention in substantially the form of the ROI; and
(2) The Participating Developers, who shall be the legal owners of such property
at the time of the formation of the Assessment District, execute a written
consent to the levy of special tax in connection with SCIP by the Authority and
execute an assessment ballot in favor of such assessment in compliance with
the requirements of Section 4 of Article XIIID of the State Constitution.
Section 5. The Joint Powers Agreement, together with the terms and provisions
of this resolution, shall together constitute a separate joint community facilities agreement
between the City and the Authority under the Mello -Roos Act for each CFD formed. As,
without this resolution, the Authority has no power to finance City Fees and City
Improvements (as such terms are defined herein) in proceedings under the Act to form the
CFD, adoption by the Commission of the Authority of each Resolution of Intention to form a
CFD under the Mello -Roos Act to finance City Fees and City Improvements shall constitute
acceptance of the terms hereof by the Authority with respect to such CFD.
Section 6. This resolution and the agreement it embodies are determined to be
beneficial to the residents/customers of the City and are in the best interests of the residents
of the City, and of the future residents of the area within the proposed CFDs and Assessment
Districts. The City hereby finds and declares that the issuance of revenue bonds by the
Authority to purchase Local Obligations in connection with SCIP will provide significant
public benefits, including without limitation, the more efficient delivery of local agency
services to residential and commercial development within the City.
Section 7. The Authority has adopted Local Goals and Policies as required by
Section 53312.7 of the Act. The City approves the use of those Local Goals and Policies in
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connection with the formation of CFDs. The City hereby agrees that the Authority may act
in lieu of the City under those Local Goals and Policies in forming and administering the
CFDs.
Section 8. The Authority has prepared and will update from time to time the "SCIP
Manual of Procedures" (the "Manual'), and the City will handle Fee revenues and funds for
Improvements for properties participating in SCIP in accordance with the procedures set
forth in the Manual.
Section 9. Pursuant to the Mello -Roos Act and this resolution, the Authority may
conduct proceedings under the Mello -Roos Act to form the CFDs and to have such CFDs
authorize the financing of any or all of the facilities and Fees set forth on Exhibit C, attached
hereto. All of the facilities, whether to be financed directly or through Fees, shall be facilities
that have an expected useful life of five years or longer and are facilities that the City or other
local public agencies, as the case may be, are authorized by law to construct, own or
operate, or to which they may contribute revenue. Exhibit C may be modified from time to
time by written agreement between an authorized representative of the Authority and of the
City. The facilities are referred to herein as the 'Improvements," and the Improvements to
be owned by the City are referred to as the "City Improvements." The Fees paid or to be
paid to the City are referred to as the "City Fees."
Section 10. For Fees paid or to be paid to another agency by any particular CFD
(an "Other Local Agency'), the Authority will obtain the written consent of that Other Local
Agency before issuing Local Obligations to fund such Fees, as required by the Mello -Roos
Act. For the Improvements to be owned by an Other Local Agency, the Authority will
separately identify them in its proceedings, and will enter into a joint community facilities
agreement with such Other Local Agency prior to issuing Local Obligations to finance such
Improvements, as required by the Mello -Roos Act. Each joint community facilities
agreement with each Other Local Agency will contain a provision that the Other Local
Agency will provide indemnification to the City to the same extent that the City provides
indemnification to the Other Local Agency under the terms of this resolution.
Section 11. At the time of formation of each CFD, the City will certify to the
Commission of the Authority that all of the City Improvements including the improvements
to be constructed or acquired with the proceeds of City Fees to be funded by such CFD are
necessary to meet increased demands placed upon the City as a result of development
occurring or expected to occur within the proposed CFDs in the form attached hereto as
Exhibit D. Any appropriate officer or staff of the City is authorized to execute and deliver
such certificate in substantially the form attached hereto as Exhibit D, with such changes as
such signatory shall approve. Joint community facilities agreements with other local
agencies will each contain a requirement that each Other Local Agency will make identical
certification in connection with respect to the Improvements to be owned by, and Fees paid
or to be paid to, such Other Local Agency equivalent to that made by the City in this
paragraph.
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Section 12. The Authority will apply the special tax collections initially as required
by the documents under which any Local Obligations are issued; and thereafter, to the
extent not provided in the Local Obligations documents, may pay its own reasonable
administrative costs incurred in the administration of the CFDs. The Authority will remit any
special tax revenues from any particular CFD remaining after the final retirement of all
related Local Obligations to the City and to the other local agencies in the proportions
specified in the Authority's proceedings. The City will apply any such special tax revenues
it receives for authorized City Improvements or City Fees and its own administrative costs
only as permitted by the Mello -Roos Act. The joint community facilities agreements with
each Other Local Agency must require the Other Local Agency to apply the special tax
revenues they receive for their authorized Improvements and Fees under the CFDs and for
their own related administrative costs only as permitted by the Mello -Roos Act.
Section 13. The Authority will administer the CFDs, including employing and
paying all consultants, annually levying the special tax and all aspects of paying and
administering the Local Obligations, and complying with all State and Federal requirements
appertaining to the proceedings, including the requirements of the United States Internal
Revenue Code. The City will cooperate fully with the Authority in respect of the requirements
of the Internal Revenue Code and to the extent information is required of the City to enable
the Authority to perform its disclosure and continuing disclosure obligations with respect to
the Local Obligations and any revenue bonds, although the City will not participate in nor be
considered to be a participant in the proceedings respecting the CFDs (other than as a party
to the agreement embodied by this resolution) nor will the City be or be considered to be an
issuer of the Local Obligations nor any revenue bonds. The Authority is required to obtain
a provision equivalent to this paragraph in all joint community facilities agreements with each
Other Local Agency.
Section 14. In the event the Authority completes issuance and sale of Local
Obligations, and Local Obligation proceeds become available to finance the Improvements,
the Authority shall establish and maintain a special fund for each development project (the
"Acquisition and Construction Fund"). The portion of Local Obligation proceeds which is
intended to be utilized to finance the Improvements and Fees shall be deposited in the
Acquisition and Construction Fund. The Acquisition and Construction Fund will be available
both for City Improvements and City Fees and for the Improvements and Fees pertaining to
each Other Local Agency. Subaccounts shall be created as necessary.
Section 15. As respects the Authority and each Other Local Agency, the City
agrees to fully administer, and to take full governmental responsibility for, the construction
or acquisition of the City Improvements and for the administration and expenditure of the
City Fees including but not limited to environmental review, approval of plans and
specifications, bid requirements, performance and payment bond requirements, insurance
requirements, contract and construction administration, staking, inspection, acquisition of
necessary property interests in real or personal property, the holding back and
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administration of retention payments, punch list administration, and the Authority and each
Other Local Agency shall have no responsibility in that regard. The City reserves the right,
as respects the each Participating Developer, to require the Participating Developer to
contract with the City to assume any portion or all of this responsibility. The Authority is
required to obtain provisions equivalent to this paragraph in the joint community facilities
agreement with each Other Local Agency.
Section 16. The City agrees to indemnify and to hold the Authority, its other
members, and its other members' officers, agents and employees, and each Other Local
Agency and their officers, agents and employees (collectively, the "Indemnified Parties")
harmless from any and all claims, suits and damages (including costs and reasonable
attorneys' fees) arising out of the design, engineering, construction and installation of the
City Improvements and the improvements to be financed or acquired with the City Fees.
The City reserves the right, as respects each Participating Developer, to require the
Participating Developer to assume by contract with the City any portion or all of this
responsibility. The Authority is required to obtain a provision equivalent to this paragraph in
all joint community facilities agreements with each Other Local Agency naming the City and
its officers, agents and employees as Indemnified Parties with respect to the each Other
Local Agency's respective Improvements and the improvements to be constructed or
acquired with the each Other Local Agency's Fees.
Section 17. As respects the Authority and each Other Local Agency, the City
agrees — once the City Improvements are constructed according to the approved plans and
specifications, and the City and the Participating Developer have put in place their agreed
arrangements for the funding of maintenance of the City Improvements — to accept
ownership of the City Improvements, to take maintenance responsibility for the City
Improvements, and to indemnify and hold harmless the Indemnified Parties to the extent
provided in the preceding paragraph from any and all claims, etc., arising out of the use and
maintenance of the City Improvements. The City reserves the right, as respects the
Participating Developer, to require the Participating Developer by contract with the City to
assume any portion or all of this responsibility. The Authority is required to obtain a provision
equivalent to this paragraph in all joint community facilities agreements with each Other
Local Agency naming the City and its officers, agents and employees as Indemnified
Parties.
Section 18. The City acknowledges the requirement of the Mello -Roos Act that if
the City Improvements are not completed prior to the adoption by the Commission of the
Authority of the Resolution of Formation of the CFD for each respective development
project, the City Improvements must be constructed as if they had been constructed under
the direction and supervision, or under the authority of, the City. The City acknowledges
that this means all City Improvements must be constructed under contracts that require the
payment of prevailing wages as required by Section 1720 and following of the Labor Code
of the State of California. The Authority makes no representation that this requirement is
the only applicable legal requirement in this regard. The City reserves the right, as respects
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the Participating Developer, to assign appropriate responsibility for compliance with this
paragraph to the Participating Developer.
Section 19. The form of the Acquisition Agreement attached hereto as Exhibit B is
hereby approved, and the City Manager or designee (the "Authorized Officer") is authorized
to execute, and deliver to the Participating Developer, the Acquisition Agreement on behalf
of the City in substantially that form, with such changes as shall be approved by the
Authorized Officer after consultation with the City Attorney and the Authority's bond counsel,
such approval to be conclusively evidenced by the execution and delivery thereof.
Section 20. After completion of the City Improvements and appropriate
arrangements for the maintenance of the City Improvements, or any discrete portion thereof
as provided in Section 53313.51 of the Mello -Roos Act and in the Acquisition Agreement, to
the satisfaction of the City, and in conjunction with the City's acceptance thereof, acquisition
of the City Improvements shall be undertaken as provided in the Acquisition Agreement.
Section 21. The City hereby consents to the formation of the CFDs in accordance
with this resolution and consents to the assumption of jurisdiction by the Authority for the
proceedings respecting the CFDs with the understanding that the Authority will hereafter
take each and every step required for or suitable for consummation of the proceedings, the
levy, collection and enforcement of the special tax, and the issuance, sale, delivery and
administration of the Local Obligations, all at no cost to the City and without binding or
obligating the City's general fund or taxing authority.
Section 22. The terms of the Agreement embodied by this resolution may be
amended by a writing duly authorized, executed and delivered by the City and the Authority,
except that no amendment may be made after the issuance of the Local Obligations by the
Authority that would be detrimental to the interests of the bondholders without complying
with all of the bondholder consent provisions for the amendment of the bond resolutions,
bond indentures or like instruments governing the issuance, delivery and administration of
all outstanding Local Obligations.
Section 23. Except to the extent of the indemnifications extended to each Other
Local Agency in the Agreement embodied by this resolution, and the City's agreement to
take responsibility for and ownership of the City Improvements, no person or entity, including
the Participating Developer, shall be deemed to be a third party beneficiary of this resolution,
and nothing in this resolution (either express or implied) is intended to confer upon any
person or entity other than the Authority and the City (and their respective successors and
assigns) any rights, remedies, obligations or liabilities under or by reason of this resolution.
Section 24. The City shall be identified as a third -party beneficiary of all joint
community facilities agreements between the Authority and each Other Local Agency to the
extent of the indemnification provisions and the provisions whereby each Other Local
Agency agrees to take responsibility for and ownership of their Improvements.
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Section 25. The appropriate officials and staff of the City are hereby authorized and
directed to make SCIP applications available to all property owners who are subject to Fees
for new development within the City and/orwho are conditioned to install Improvements and
to inform such owners of their option to participate in SCIP; provided, that the Authority shall
be responsible for providing such applications and related materials at its own expense. The
staff persons listed on the attached Exhibit E, together with any other staff persons chosen
by the City Manager or designee from time to time, are hereby designated as the contact
persons for the Authority in connection with SCIP.
Section 26. The appropriate officials and staff of the City are hereby authorized and
directed to execute and deliver such closing certificates, requisitions, agreements and
related documents, including but not limited to such documents as may be required by bond
counsel in connection with the participation in SCIP of any districts, authorities or other third -
party entities entitled to own Improvements and/or to levy and collect fees on new
development to pay for public capital improvements within the jurisdiction of the City, as are
reasonably required by the Authority in accordance with the Manual to implement SCIP and
to evidence compliance with the requirements of federal and state law in connection with
the issuance by the Authority of the Local Obligations and any other bonds for SCIP. To that
end, and pursuant to Treasury Regulations Section 1.150-2, the staff persons listed on
Exhibit E, or other staff person acting in the same capacity for the City with respect to SCIP,
are hereby authorized and designated to declare the official intent of the City with respect to
the public capital improvements to be paid or reimbursed through participation in SCIP.
Section 27. This Resolution shall take effect immediately upon its adoption. The
City Clerk is hereby authorized and directed to transmit a certified copy of this resolution to
the Secretary of the Authority. This resolution shall remain in force until all Local Obligations
have been retired and the authority to levy the special tax conferred by any CFD proceedings
and to levy the assessment conferred by any assessment proceedings has ended or is
otherwise terminated.
ADOPTED this 201h day of October.
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APPROVED AS TO FORM:
Sonia R. Carvalho, City Attorney
Attorney
AYES: Councilmembers Bacerra Mendoza Penaloza, Pulido,
Sarmiento Solorio, Villegas (7)
NOES: Councilmembers None (0)
ABSTAIN: Councilmembers None (0)
NOT PRESENT: Councilmembers None (0)
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, DAISY GOMEZ, Clerk of the Council, do hereby attest to and certify the attached
Resolution No. 2020-080 to be the original resolution adopted by the City Council of the
City of Santa Ana on October 20, 2020.
Date:
Daisy Gomez
Clerk of the Coun it
City of Santa Ana
Resolution No. 2020-080
Page 10 of 10
EXHIBIT A TO THE RESOLUTION
FORM OF RESOLUTION OF INTENTION
TO BE ADOPTED BY CSCDA
RESOLUTION NO. SCIP-
RESOLUTION OF INTENTION OF THE CALIFORNIA STATEWIDE
COMMUNITIES DEVELOPMENT AUTHORITY TO FINANCE CAPITAL
IMPROVEMENTS AND/OR THE PAYMENT OF DEVELOPMENT IMPACT
FEES FOR PUBLIC CAPITAL IMPROVEMENTS IN THE PROPOSED
STATEWIDE COMMUNITY INFRASTRUCTURE PROGRAM ASSESSMENT
DISTRICT NO. _ (CITY OF SANTA ANA, COUNTY OF ORANGE,
CALIFORNIA), APPROVING A PROPOSED BOUNDARY MAP, MAILING
CERTAIN DECLARATIONS, FINDINGS AND DETERMINATIONS
CONCERNING RELATED MATTERS, AND AUTHORIZING RELATED
ACTIONS IN CONNECTION THEREWITH
WHEREAS, under the authority of the Municipal Improvement Act of 1913 (the "1913 Act"),
being Division 12 (commencing with Sections 10000 and following) of the California Streets and Highways
Code (the "Code"), the Commission (the "Commission") of the California Statewide Communities
Development Authority (the "Authority") intends to finance, through its Statewide Community
Infrastructure Program, the payment of certain development impact fees for public improvements (the
"Improvement Fees") and/or to finance certain public capital improvements to be constructed by or on
behalf of the property owner(s) and to be acquired by the City of Santa Ana or another local agency (the
"Improvements") as described in Exhibit A attached hereto and by this reference incorporated herein, all
of which are of benefit to the property within the proposed Statewide Community Infrastructure Program
Assessment District No. _ (City of Santa Ana, County of Orange, California) (the "Assessment District");
WHEREAS, the Commission finds that the land specially benefited by the Improvements and/or
the Improvement Fees is shown within the boundaries of the map entitled "Proposed Boundaries of
California Statewide Communities Development Authority Statewide Community Infrastructure Program
Assessment District No. _ (City of Santa Ana, County of Orange,) State of California," a copy of which
map is on file with the Secretary and presented to this Commission meeting, and determines that the land
within the exterior boundaries shown on the map shall be designated "Statewide Community Infrastructure
Program Assessment District No. _ (City of Santa Ana, County of Orange,) State of California";
WHEREAS, the City of Santa Ana is a member of the Authority and has approved the adoption
on its behalf of this Resolution of Intention and has consented to the levy of the assessments in the
Assessment District;
NOW, THEREFORE, BE IT RESOLVED that the Commission of the California Statewide
Communities Development Authority hereby finds, determines and resolves as follows:
Section 1. The above recitals are true and correct.
Section 2. Pursuant to Section 2961 of the Special Assessment Investigation, Limitation and
Majority Protest Act of 1931 (the "1931 Act"), being Division 4 (commencing with Section 2800) of the
Code, the Commission hereby declares its intent to comply with the requirements of the 1931 Act by
complying with Part 7.5 thereof.
A-1
Section 3. The Commission has designated a registered, professional engineer as Engineer
of Work for this project, and hereby directs said firm to prepare the report containing the matters required
by Sections 2961(b) and 10204 of the Code, as supplemented by Section 4 of Article XIIID of the
California Constitution.
Section 4. The proposed boundary map of the Assessment District is hereby approved and
adopted. Pursuant to Section 3111 of the Code, the Secretary of the Authority is directed to file a copy of
the map in the office of the County Recorder of the County of Orange within fifteen (15) days of the
adoption of this resolution.
Section 5. The Commission determines that the cost of financing the Improvements and/or
the payment of the Improvement Fees shall be specially assessed against the lots, pieces or parcels of land
within the Assessment District benefiting from the financing of the Improvements and/or the payment of
the Improvement Fees. The Commission intends to levy a special assessment upon such lots, pieces or
parcels in accordance with the special benefit to be received by each such lot, piece or parcel of land,
respectively, from the financing of the Improvements and/or the payment of the Improvement Fees.
Section 6. The Commission intends, pursuant to subparagraph (f) of Section 10204 of the
Code, to provide for an annual assessment upon each of the parcels of land in the proposed Assessment
District to pay various costs and expenses incurred from time to time by the Authority and not otherwise
reimbursed to the Authority which result from the administration and collection of assessment installments
or from the administration or registration of the improvement bonds and the various funds and accounts
pertaining thereto.
Section 7. Bonds representing unpaid assessments, and bearing interest at a rate not to exceed
twelve percent (12%) per annuim, will be issued in the manner provided by the Improvement Bond Act of
1915 (Division 10 of the Code), and the last installment of the bonds shall mature not to exceed twenty-
nine (29) years from the second day of September next succeeding twelve (12) months from their date.
Section 8. The procedure for the collection of assessments and advance retirement of bonds
under the Improvement Bond Act of 1915 shall be as provided in Part 11.1 thereof.
Section 9. Neither the Authority nor any member agency thereof will obligate itself to
advance available funds from its or their own funds or otherwise to cure any deficiency which may occur
in the bond redemption fund. A determination not to obligate itself shall not prevent the Authority or any
such member agency from, in its sole discretion, so advancing funds.
Section 10. The amount of any surplus remaining in the improvement fund after acquisition of
the Improvements and/or payment of Improvement Fees and all other claims shall be distributed in
accordance with the provisions of Section t0427.1 of the Code.
Section 11. To the extent any Improvement Fees are paid to the Authority in cash with respect
to property within the proposed Assessment District prior to the date of issuance of the bonds, the amounts
so paid shall be reimbursed from the proceeds of the bonds to the property owner or developer that made
the payment.
PASSED AND ADOPTED by the California Statewide Communities Development Authority this
day of , 2020.
I, the undersigned, an Authorized Signatory of the California Statewide Communities Development
Authority, DO HEREBY CERTIFY that the foregoing resolution was duly adopted by the Commission of
the Authority at a duly called meeting of the Commission of the Authority held in accordance with law on
2020.
0
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Authorized Signatory
California Statewide Communities
Development Authority
EXHIBIT A TO THE RESOLUTION OF INTENTION
DESCRIPTION OF WORD
The payment of development impact fees levied within the Assessment District and/or public capital
improvements to be acquired and owned by the City of Santa Ana or another local agency upon or for the
benefit of parcels within the Assessment District, for the project known as [Project Name], which are
authorized to be financed pursuant to the Municipal Improvement Act of 1913 and as to which the owners
of the applicable parcels within the Assessment District have applied for participation in SCIP, as more
particularly described below.
PAYMENT OF IMPACT FEES
CAPITAL IMPROVEMENTS*
*Capital improvements includes funding for incidental costs associated with the capital improvements,
including but not limited to, contingency, design, engineering, and construction management
[End of Form of Resolution of Intention]
EXHIBIT B TO RESOLUTION
FORM OF ACQUISITION AGREEMENT
CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY
STATEWIDE COMMUNITY INFRASTRUCTURE PROGRAM
ACQUISITION AGREEMENT
BY AND BETWEEN
CITY OF SANTA ANA
0
[DEVELOPER]
Dated as of , 20
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ACQUISITION AGREEMENT
Recitals
A. The parties to this Acquisition Agreement (the "Agreement") are the CITY OF
SANTA ANA, (the "Local Agency"), and [DEVELOPER], a [here indicate type of legal entity]
(the "Developer").
B. The effective date of this Agreement is , 2020.
C. The Developer has applied for the financing of, among other things, certain public
capital improvements to be owned by the Local Agency (collectively, the "Acquisition
Improvements") through the California Statewide Communities Development Authority (the
"Authority") and its Statewide Community Infrastructure Program ("SCIP"). [For CFDS:][The
Acquisition Improvements are to be owned and operated by the Local Agency, and the financing
is to be accomplished through a community facilities district which will be administered by the
Authority under and pursuant to the Mello -Roos Community Facilities Act of 1982 — California
Government Code Sections 53311 and following (the "Act"). On [ ], 2020, the Local
Agency entered into a Joint Community Facilities Agreement authorizing the Authority to form a
community facilities district (the "District") within the territorial limits of the Local Agency to
finance, among other things, the Acquisition Improvements. On [ ], 2020, the
Authority formed the District and, on the same date, a landowner election was conducted in which
all of the votes were cast unanimously in favor of conferring the District authority on the Authority
Commission.] [For Assessment Districts:][The Acquisition Improvements are to be owned and
operated by the Local Agency, and the financing is to be accomplished through an assessment
district (the "District") which will be administered by the Authority under and pursuant to
Municipal Improvement Act of 1913 (Streets and Highways Code Sections 10000 and following)
(the "1913 Act") and the issuance of improvement bonds (the "Local Obligations") under the
Improvement Bond Act of 1915 (Streets and Highways Code Sections 8500 and following) (the
"1915 Act" and, together with the "1913 Act" the "Act").]
D. The administration, payment and reimbursement of the capital facilities fees is
agreed to be governed by the provisions of the SCIP Manual of Procedures as it may be amended
from time to time. The administration, payment and reimbursement of the Acquisition
Improvements shall be as provided herein.
E. Under SCIP, the Authority intends to levy [assessments] [special taxes] and issue
bonds, in one or more series, to fund, among other things, all or a portion of the costs of the
Acquisition Improvements. The portion of the proceeds of the [special taxes and] bonds allocable
to the cost of the Acquisition Improvements, together with interest earned thereon, is referred to
herein as the "Available Amount".
F. The Authority will provide financing for the acquisition by the Local Agency 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, which includes authorized discrete and usable
portions, if any, of the public capital improvements, pursuant to Section 53313.51 of the Act, to
be acquired from the Developer.
G. The parties anticipate that, upon completion of the Acquisition Improvements and
subject to the terms and conditions of this Agreement, the Local Agency will acquire such
completed Acquisition Improvements with the Available Amount.
H. Any and all monetary obligations of the Local Agency arising out of this Agreement
are the special and limited obligations of the Local Agency payable only from the Available
Amount, and no other funds whatsoever of the Local Agency shall be obligated therefor.
I. Attached to this Agreement are Exhibit A (the Acquisition Improvements and the
Eligible Portions thereof), Exhibit B (form of Requisition), and Exhibit C (Bidding, Contracting
and Construction Requirements for Acquisition Improvements), all of which are incorporated into
this Agreement for all purposes.
Agreement
ARTICLE I
DEFINITIONS; DISTRICT
FORMATION AND FINANCING PLAN
Section 1.01. 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 Local Agency Engineer not to interfere with the intended use and
therefore are not required to be cleared from the title.
"Acquisition and Construction Fund" means the "[Local Agency] Acquisition and
Construction Fund" established by the Authority pursuant to Section 1.03 hereof for the purpose
of paying the Acquisition Price of the Acquisition Improvements and which fund may be held as
a subaccount within a fund established under the Authority Trust Agreement and may be
cormningled with acquisition and construction fund monies available for other public capital
improvements.
"Acquisition Improvement" shall have the meaning assigned to such term in the recitals
and are further described in Exhibit A.
"Acquisition Price" means the total amount eligible to be paid to the Developer upon
acquisition of an Acquisition Improvement as provided in Section 2.03 not to exceed the Actual
Cost of the Acquisition Improvement.
"Act" has the meaning ascribed thereto in Recital C.
"Actual Cost"means the total cost of an Acquisition Improvement, as documented by the
Developer to the satisfaction of the Local Agency and as certified by the Local Agency Engineer
in an Actual Cost Certificate including, without limitation, (a) the Developer's cost of constructing
such Acquisition Improvement including grading, labor, material and equipment costs, (b) the
Developer's cost of designing and engineering the Acquisition Improvement, preparing the plans
and specifications and bid documents for such Acquisition Improvement, and the costs of
inspection, materials testing and construction staking for such Acquisition Improvement, (c) the
Developer's cost of any performance, payment and maintenance bonds and insurance, including
title insurance, required hereby for such Acquisition Improvement, (d) the Developer's cost of any
real property or interest therein that is either necessary for the construction of such Acquisition
Improvement (e.g., temporary construction easements, haul roads, etc.), or is required to be
conveyed with such Acquisition Improvement in order to convey Acceptable Title thereto to the
Local Agency or its designee, (e) the Developer's cost of environmental evaluation or mitigation
required for such Acquisition Improvement, (f) the amount of any fees actually paid by the
Developer to governmental agencies in order to obtain permits, licenses or other necessary
governmental approvals and reviews for such Acquisition Improvement, (g) the Developer's cost
for construction and project management, administration and supervision services for such
Acquisition Improvement, (h) the Developer's cost for professional services related to such
Acquisition Improvement, including engineering, accounting, legal, financial, appraisal and
similar professional services, and (i) the costs of construction financing incurred by the Developer
with respect to such Acquisition Improvement.
"Actual Cost Certificate" means a certificate prepared by the Developer detailing the
Actual Cost of an Acquisition Improvement, or an Eligible Portion thereof, to be acquired
hereunder, as may be revised by the Local Agency Engineer pursuant to Section 2.03.
"Agreement' means this Acquisition Agreement, dated as of [ 1, 2020.
"Authority" means the California Statewide Communities Development Authority.
"Authority Trust Agreement" means a Trust Agreement entered into by the Authority and
an Authority Trustee in connection with the issuance of bonds.
"Authority Trustee" means the financial institution identified as trustee in an Authority
Trust Agreement.
"Available Amount" shall have the meaning assigned to the term in Recital E.
"Bonds" means bonds or other indebtedness issued by the Authority as tax-exempt or
taxable bonds or other indebtedness, in one or more series, that is to be repaid by the District.
"Code" means the Streets and Highways Code or the Government Code of the State of
California, as applicable.
"Developer" means [Developer], its successors and assigns.
"Disbursement Request Form" means a requisition for payment of funds from the
Acquisition and Construction Fund for an Acquisition Improvement, or an Eligible Portion thereof
in substantially the form contained in Exhibit B hereto.
"District" shall have the meaning assigned to the term in Recital C.
"Eligible Portion" shall have the meaning ascribed to it in Section 2.03 below.
"Installment Payment" means an amount equal to ninety percent (90%) of the Actual Cost
of an Eligible Portion.
"Local Agency" means the City of Santa Ana.
"Local Agency Engineer" means the Engineer of the Local Agency or his/her designee
who will be responsible for administering the acquisition of the Acquisition Improvements
hereunder.
"Project" means the Developer's development of the property in the District, including the
design and construction of the Acquisition Improvements and the other public and private
improvements to be constructed by the Developer within the District.
["Special Taxes" means annual special taxes, and prepayments thereof, authorized by the
District to be levied by the Commission of the Authority.]
"Title Documents" means, for each Acquisition Improvement acquired hereunder, a grant
deed or similar instrument necessary to transfer title to any real property or interests therein
(including easements), or an irrevocable offer of dedication of such real property with interests
therein necessary to the operation, maintenance, rehabilitation and improvement by the Local
Agency of the Acquisition Improvement (including, if necessary, easements for ingress and egress)
and a bill of sale or similar instrument evidencing transfer of title to the Acquisition Improvement
(other than said real property interests) to the Local Agency, where applicable.
Section 1.02. Participation in SCIP. [For CFDs:][The Local Agency has entered
into a Joint Community Facilities Agreement with the Authority for the purpose of accepting
applications from time to time of developers within the Local Agency's jurisdictional boundaries.]
Developer has applied for financing through SCIP of the Acquisition Improvements, and such
application has been approved by the Local Agency. Developer and Local Agency agree that until
and unless such financing is completed by the Authority and the Available Amount is deposited in
the Developer Acquisition Account, neither the Developer nor the Local Agency shall have any
obligations under this agreement. Developer agrees to cooperate with the Local Agency and the
Authority in the completion of SCIP financing for the Acquisition hnprovements.
Section 1.03. Deposit and Use of Available Amount.
(a) Upon completion of the SCIP financing, the Available Amount will be
deposited by the Authority in the Acquisition Account.
(b) The Authority will cause the SCIP Trustee to establish and maintain the
Acquisition Account for the purpose of holding all funds for the Acquisition Improvements. All
earnings on amounts in the Acquisition and Construction Fund shall remain in the Acquisition and
Construction Fund for use as provided herein and pursuant to the Authority Trust Agreement.
Money in the Acquisition and Construction Fund shall be available to respond to delivery of a
Disbursement Request Form and to be paid to the Developer or its designee to pay the Acquisition
Price of the Acquisition Improvements, as specified in Article II hereof. Upon completion of all
of the Acquisition Improvements and the payment of all costs thereof, any remaining funds in the
Acquisition and Construction Fund (less any amount determined by the City as necessary to
reserve for claims against the account) (i) shall be applied to pay the costs of any additional
Acquisition Improvements eligible for acquisition with respect to the Project as approved by the
Authority and, to the extent not so used, (ii) shall be applied by the Authority [to call Bonds or to
reduce Special Taxes as the Authority shall determine] [as provided in Section 10427.1 of the Code
to pay a portion of the assessments levied on the Project property in the Assessment District.
Section L04. No Local Agency Liability; Local Agency Discretion; No Effect on
Other Agreements. hi no event shall any actual or alleged act by the Local Agency or any actual
or alleged omission or failure to act by the Local Agency with respect to SCIP subject the Local
Agency to monetary liability therefor. Further, nothing in this Agreement shall be construed as
affecting the Developer's or the Local Agency's duty to perform their respective obligations under
any other agreements, public improvement standards, land use regulations or subdivision
requirements related to the Project, which obligations are and shall remain independent of the
Developer's and the Local Agency's rights and obligations under this Agreement.
ARTICLE II
DESIGN CONSTRUCTION AND ACQUISITION OF ACQUISITION IMPROVEMENTS
Section 2.01. Letting and Administering Design Contracts. The parties presently
anticipate that the Developer has awarded and administered or will award and administer
engineering design contracts for the Acquisition Improvements to be acquired from Developer.
All eligible expenditures of the Developer for design engineering and related costs in connection
with the Acquisition Improvements (whether as an advance to the Local Agency or directly to the
design consultant) shall be reimbursed at the time of acquisition of such Acquisition
Improvements. The Developer shall be entitled to reimbursement for any design costs of the
Acquisition Improvements only out of the Acquisition Price as provided in Section 2.03 and shall
not be entitled to any payment for design costs independent of or prior to the acquisition of
Acquisition Improvements.
Section 2.02. Letting and Administration of Construction Contracts;
indemnification. State law requires that all Acquisition Improvements not completed prior to the
formation of the District shall be constructed as if they were constructed under the direction and
supervision, or under the authority, of the [Local Agency]. In order to assure compliance with
those provisions, except for any contracts entered into prior to the date hereof, Developer agrees
to comply with the requirements set forth in Exhibit C hereto with respect to the bidding and
contracting for the construction of the Acquisition Improvements. The Developer agrees that all
the contracts shall call for payment of prevailing wages as required by the Labor Code of the State
of California. The Developer's indemnification obligation set forth in Section 3.01 of this
Agreement shall also apply to any alleged failure to comply with the requirements of this Section,
and/or applicable State laws regarding public contracting and prevailing wages.
Section 2.03. Sale of Acquisition Improvements. The Developer agrees to sell to
the [Local Agency] each Acquisition Improvement to be constructed by Developer (including any
rights -of -way or other easements necessary for the Acquisition Improvements, to the extent not
already publicly owned), when the Acquisition Improvement is has been constructed and is
complete to the satisfaction of the Local Agency for an amount not to exceed the lesser of (i) the
Available Amount or (ii) the Actual Cost of the Acquisition Improvement. Exhibit A, attached
hereto and incorporated herein, contains a list of the Acquisition Improvements. Portions of an
Acquisition Improvement eligible for Installment Payments prior to completion of the entire
Acquisition Improvement are described as eligible, discrete and usable portions in Exhibit A (each,
an "Eligible Portion"). At the time of completion of each Acquisition Improvement, or Eligible
Portion thereof, the Developer shall deliver to the Local Agency Engineer a written request for
acquisition, accompanied by an Actual Cost Certificate, and by executed Title Documents for the
transfer of the Acquisition Improvement where necessary. In the event that the Local Agency
Engineer finds that the supporting paperwork submitted by the Developer fails to demonstrate the
required relationship between the subject Actual Cost and eligible work, the Local Agency
Engineer shall advise the Developer that the determination of the Actual Cost (or the ineligible
portion thereof) has been disallowed and shall request further documentation from the Developer.
If the further documentation is still not adequate, the Local Agency Engineer may revise the Actual
Cost Certificate to delete any disallowed items and the determination shall be final and conclusive.
Certain soft costs for the Acquisition Improvements, such as civil engineering, may have
been incurred pursuant to single contracts that include work relating also to the private portions of
the Project. In those instances, the total costs under such contracts will be allocated to each
Acquisition Improvement as approved by the Local Agency Engineer. Where a specific contract
has been awarded for design or engineering work relating solely to an Acquisition Improvement,
one hundred percent (100%) of the costs under the contract will be allocated to that Acquisition
Improvement. Amounts allocated to an Acquisition Improvement will be further allocated among
the Eligible Portions of that Acquisition Improvement, if any, in the same proportion as the amount
to be reimbursed for hard costs for each Eligible Portion bears to the amount to be reimbursed for
hard costs for the entire Acquisition Improvement. Costs will be allocated to each Acquisition
Improvement as approved by the Local Agency Engineer. The costs of certain environmental
mitigation required to mitigate impacts of the public and private portions of the Project will be
allocated to each Acquisition Improvement as approved by the Local Agency Engineer.
In the event that the Actual Cost is in excess of the Available Amount, the Local Agency
shall withdraw the Available Amount from the Acquisition Account and transfer said amount to
the Developer. In the event that the Actual Cost is less than the Available Amount, the Local
Agency shall withdraw an amount from the Acquisition Account equal to the Actual Cost, and
shall transfer said amount to the Developer. Any amounts then remaining in the Acquisition
Account shall be applied as provided in Section 1.03.
hi no event shall the Local Agency be required to pay the Developer more than the amount
on deposit in the Acquisition Account at the time such payment is requested.
Section 2.04. Conditions Precedent to Payment of Acquisition Price. Payment to
the Developer or its designee of the Acquisition Price for an Acquisition Improvement from the
Acquisition and Construction Fund shall in every case be conditioned first upon the determination
of the Local Agency Engineer, pursuant to Section 2.03, that the Acquisition Improvement satisfies
all Local Agency regulations and ordinances and is otherwise complete and ready for acceptance
by the Local Agency, and shall be further conditioned upon satisfaction of the following additional
conditions precedent:
(a) The Developer shall have provided the Local Agency with lien releases or
other similar documentation satisfactory to the Local Agency Engineer as evidence that none of
the property (including any rights -of -way or other easements necessary for the operation and
maintenance of the Acquisition Improvement, to the extent not already publicly owned)
comprising the Acquisition Improvement, and the property which is subject to the
[assessments/Special Taxes] of the District, is not subject to any prospective mechanics lien claim
respecting the Acquisition Improvements.
(b) All due and payable property taxes, and installments of
[assessments/Special Taxes] shall be current on property owned by the Developer or under option
to the Developer that is subject to the lien of the District.
(c) The Developer shall certify that it is not in default with respect to any loan
secured by any interest in the Project.
(d) The Developer shall have provided the Local Agency with Title Documents
needed to provide the Local Agency with title to the site, right-of-way, or easement upon which
the subject Acquisition Improvements are situated. All such Title Documents shall be in a form
acceptable to the Local Agency (or applicable governmental agency) and shall convey Acceptable
Title. The Developer shall provide a policy of title insurance as of the date of transfer in a form
acceptable to the Local Agency Engineer insuring the Local Agency as to the interests acquired in
connection with the acquisition of any interest for which such a policy of title insurance is not
required by another agreement between the Local Agency and the Developer. Each title insurance
policy required hereunder shall be in the amount equal to or greater than the Acquisition Price.
Section 2.05. SCIP Requisition. Upon a determination by the Local Agency
Engineer to pay the Acquisition Price of the Acquisition Improvements pursuant to Section 2.04,
the Local Agency Engineer shall cause a SCIP Requisition to be submitted to the Program
Administrator. The Program Administrator will review the SCIP Requisition and forward it with
instructions to the SCIP Trustee and the SCIP Trustee shall make payment directly to the
Developer of such amount pursuant to the SCIP Trust Agreement. The Local Agency and the
Developer acknowledge and agree that the SCIP Trustee shall make payment strictly in accordance
with the SCIP Requisition and shall not be required to determine whether or not the Acquisition
Improvements have been completed or what the Actual Costs may be with respect to such
Acquisition Improvements. The SCIP Trustee shall be entitled to rely on the SCIP Requisition on
its face without any further duty of investigation.
ARTICLE III
MISCELLANEOUS
Section 3.01. Indemnification and Hold Harmless. The Developer hereby
assumes the defense of, and indemnifies and saves harmless the Local Agency, the Authority, and
each of its respective 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 in the performance of this Agreement, or arising out of any
contract for the design, engineering and construction of the Acquisition Improvements or arising
out of any alleged misstatements of fact or alleged omission of a material fact made by the
Developer, its officers, directors, employees or agents to the Authority's underwriter, financial
advisor, appraiser, district engineer or bond counsel or regarding the Developer, its proposed
developments, its property ownership and its contractual arrangements contained in the official
statement relating to the SCIP financing (provided that the Developer shall have been furnished a
copy of such official statement and shall not have objected thereto); and provided, further, that
nothing in this Section 3.01 shall limit in any manner the Local Agency's rights against any of the
Developer's architects, engineers, contractors or other consultants. Except as set forth in this
Section 3.01, no provision of this Agreement shall in any way limit the extent of the responsibility
of the Developer for payment of damages resulting from the operations of the Developer, its agents
and employees. Nothing in this Section 3.01 shall be understood or construed to mean that the
Developer agrees to indemnify the Local Agency, the Authority or any of its respective officers,
directors, employees or agents, for any negligent or wrongful acts or omissions to act of the Local
Agency, Authority its officers, employees, agents or any consultants or contractors.
Section 3.02. Audit. The Local Agency shall have the right, during normal
business hours and upon the giving of ten days' written notice to the Developer, to review all books
and records of the Developer pertaining to costs and expenses incurred by the Developer (for which
the Developer seeks reimbursement) in constructing the Acquisition Improvements.
Section 3.03. Cooperation. The Local Agency and the Developer agree to
cooperate with respect to the completion of the SCIP financing for the Acquisition Improvements.
The Local Agency and the Developer agree to meet in good faith to resolve any differences on
future matters which are not specifically covered by this Agreement.
Section 3.04. 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 such consent, approval or
acceptance not be unreasonably withheld or delayed, unless such provision expressly incorporates
a different standard. The foregoing provision shall not apply to provisions in the Agreement which
provide for decisions to be in the sole discretion of the party making the decision.
Section 3.05. Third Party Beneficiaries. The Authority and its officers,
employees, agents or any consultants or contractors are expressly deemed third party beneficiaries
of this Agreement with respect to the provisions of Section 3.01. It is expressly agreed that, except
for the Authority with respect to the provisions of Section 3.01, there are no third party
beneficiaries of this Agreement, including without limitation any owners of bonds, any of the
Local Agency's or the Developer's contractors for the Acquisition Improvements and any of the
Local Agency's, the Authority's, or the Developer's agents and employees.
Section 3.06. Conflict with Other Agreements. Nothing contained herein shall be
construed as releasing the Developer or the Local Agency from any condition of development or
requirement imposed by any other agreement between the Local Agency and the Developer, and,
in the event of a conflicting provision, such other agreement shall prevail unless such conflicting
provision is specifically waived or modified in writing by the Local Agency and the Developer.
Section 3.07. Notices. All invoices for payment, reports, other communication
and notices relating to this Agreement shall be mailed to:
If to the Local A eg ncy:
City of Santa Ana
[Address to Come]
If to the Developer:
[Developer]
[Address to Come]
Either party may change its address by giving notice in writing to the other party.
Section 3.08. Severability. If any part of this Agreement is held to be illegal or
unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given
effect to the fullest extent reasonably possible.
Section 3.09. 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 3.10. Waiver. Failure by a party to insist upon the strict performance of
any of the provisions of this Agreement by the other party, or the failure by a party to exercise its
rights upon the default of the other party, shall not constitute a waiver of such party's right to insist
and demand strict compliance by the other party with the terms of this Agreement.
Section 3.11. 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 3.12. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original.
Section 3.13. Successors and Assigns. This Agreement is binding upon the heirs,
assigns and successors -in -interest of the parties hereto. The Developer may not assign its rights
or obligations hereunder, except to successors -in -interest to the property within the District,
without the prior written consent of the Local Agency.
Section 3.14. Remedies in General. It is acknowledged by the parties that the
Local Agency would not have entered into this Agreement if it were to be liable in damages under
or with respect to this Agreement or the application thereof, other than for the payment to the
Developer of any (i) moneys 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 the Local Agency.
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 Local Agency 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.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year
written above.
ATTEST:
City Clerk
CITY OF SANTA ANA
e
[City Manager]
[DEVELOPER],
a [here indicate type of legal entity]
M
(Signature)
(Print Name)
Exhibit A to the Acquisition Agreement
DESCRIPTION OF ACQUISITION IMPROVEMENTS AND BUDGETED AMOUNTS
ACQUISITION IMPROVEMENTS
1.
2.
3.
4.
BUDGETED AMOUNTS
Exhibit B to The Acquisition Agreement
FORM OF SCIP REQUISITION
To: BLX Group LLC
SCIP Program Administrator
777 S. Figueroa St., Suite 3200
Los Angeles, California 90017
Attention: Vo Nguyen
Fax: 213-612-2499
Re: Statewide Community Infrastructure Program
The undersigned, a duly authorized officer of the CITY OF SANTA ANA hereby requests a
withdrawal from the [DEVELOPER] ACQUISITION ACCOUNT, as follows:
Request Date: [Insert Date of Request]
Name of Developer: [Developer]
Withdrawal Amount: [hisert Acquisition Price]
Acquisition Improvements: [Insert Description of Acquisition Improvement(s) from Ex. A]
Payment Instructions: [Insert Wire Instructions or Payment Address for Developer]
The undersigned hereby certifies as follows:
1. The Withdrawal is being made in accordance with a permitted use of such monies pursuant
to the Acquisition Agreement, and the Withdrawal is not being made for the purpose of
reinvestment.
2. None of the items for which payment is requested have been reimbursed previously from
other sources of funds.
3. If the Withdrawal Amount is greater than the funds held in the [Developer] Acquisition
Account, the SCIP Program Administrator is authorized to amend the amount requested to be equal
to the amount of such funds.
4. To the extent the Withdrawal is being made prior to the date bonds have been issued on
behalf of SCIP, this withdrawal form serves as the declaration of official intent of the CITY OF
SANTA ANA, pursuant to Treasury Regulations 1.150-2, to reimburse with respect expenditures
made from the Developer Acquisition Account listed above in the amount listed above.
CITY OF SANTA ANA
Title:
EXHIBIT C TO RESOLUTION
ELIGIBLE FACILITIES AND FEES
Eligible facilities and fees that may be financed by a CFD formed by CSCDA through SCIP
include all improvements and fees authorized under the Mello -Roos Act, including but not limited
to the following:
Transportation Improvements
Eligible roadway improvements include, but are not limited to: acquisition of land and easements;
roadway design; project management; bridge crossings and culverts; clearing, grubbing, and
demolition; grading, soil import/export, paving (including slurry seal), and decorative/enhanced
pavement concrete and/or pavers; joint trenches, underground utilities and undergrounding of
existing utilities; dry utilities and appurtenances; curbs, gutters, sidewalks, bike trails (including
onsite and off -site), enhanced fencing, and access ramps; street lights, signalization, and traffic
signal control systems; bus turnouts; signs and striping; erosion control; median and parkway
landscaping and irrigation; entry monumentation; bus shelters, bus and transit improvements
including transfer stations and regional public transit improvements; masonry walls; traffic control
and agency fees; and other improvements related thereto. Eligible improvements for the roads
listed herein also include any and all necessary underground potable and recycled water, sanitary
sewer, and storm drainage system improvements.
Water System Improvements
Authorized facilities include any and all water facilities designed to meet the needs of development
within the CFD. These facilities include, but may not be limited to: water storage, treatment and
distribution facilities including waterlines and appurtenances, gate valves, pressure reducing
stations, flow meters, fire hydrants, and other improvements related thereto such as site clearing,
grading and paving; curbs and gutters; booster pump stations & power; stand-by generators; site
lighting, drainage, sanitary sewer, and water service; landscaping and irrigation; access gates, and
fencing; and striping and signage.
Recycled Water System Improvements
Authorized facilities include any and all recycled water system facilities designed to meet the needs
of development within the CFD. These facilities include, but may not be limited to: treatment and
distribution facilities including pipelines and appurtenances, gate valves, flow meters, booster
pump pressurization system, and other improvements related thereto - such as site clearing, grading
and paving; curbs and gutters; booster pump stations; stand-by generators; site lighting, drainage,
sanitary sewer, and water service; landscaping and irrigation; access gates, and fencing; and
striping and signage.
Drainage System Improvements
Authorized facilities include any and all drainage and storm drain improvements designed to meet
the needs of development within the CFD. These facilities include, but may not be limited to:
excavation and grading, pipelines and appurtenances, outfalls and water quality measures,
detention/retention basins, drainage pretreatment facilities, drainage ways/channels, pump
C-1
stations, landscaping and irrigation; access roads, gates, and fencing; and striping and signage and
other improvements related thereto.
Wastewater System Improvements
Authorized facilities include any and all wastewater facilities designed to meet the needs of
development within the CFD. These facilities include, but may not be limited to, pipelines and all
appurtenances thereto; manholes; tie-in to existing main lines; force mains; lift stations; upgrades
to existing lift stations; odor -control facilities; and permitting related thereto; and related sewer
system improvements.
Park, Parkway and Open Space Improvements
Authorized facilities include any and all improvements to parks, parkways and open space required
for development within the CFD. These facilities include, but may not be limited to: grading, turf,
shrubs and trees, landscaping irrigation, site lighting, drainage, sanitary sewer and water service,
pedestrian and bicycle trails, protective fencing (including soundwalls), pedestrian/bicycle
bridges, storm drain crossings, wetland mitigation, hawk mitigation for authorized facilities herein,
access gates and fencing and related open space improvements. Authorized facilities include
acquisition of any and all parkland as well as open spaceibike trail/public access easements
required for development within the CFD.
School and Educational Facilities
Authorized facilities include classroom renovation, updates to school safety and security systems,
technology improvements, energy efficiency improvements, school modernization and
retrofitting, and new classroom and school construction as required for development within the
CFD.
Development Impact Fees
Authorized facilities include the direct funding of any of the above referenced facility types for
which the Local Agency collects a development impact fee.
Other Incidental Expenses and Bond Issuance Costs
In addition to the above facilities, other incidental expenses as authorized by the Mello -Roos
Community Facilities Act of 1982, including, but not limited to, the cost of planning and designing
the facilities (including the cost of environmental evaluation, remediation and mitigation);
engineering and surveying; construction staking; utility relocation and demolition costs incidental
to the construction of the public facilities; costs of project/construction management; costs
(including the costs of legal services) associated with the formation of the CFD; issuance of bonds
(if any); determination of the amount of taxes; collection of taxes; payment of taxes; costs of
calculating and providing reimbursements from one-time special tax payments; or costs otherwise
incurred in order to carry out the authorized purposes of the CFD; and any other expenses
incidental to the formation and implementation of the CFD and to the construction, completion,
inspection and acquisition of the authorized facilities.
C-2
EXHIBIT D TO RESOLUTION
FORM OF INCREASED DEMANDS CERTIFICATE
To: California Statewide Communities Development Authority
Re: Statewide Community Infrastructure Program — Community Facilities District for
Project
The undersigned, a duly authorized officer of the CITY OF SANTA ANA hereby certifies that the
public capital improvements and development impact fees identified below are necessary to meet
increased demands placed upon the Local Agency as a result of development within the proposed
community facilities district for the [Project]:
[List improvements/fees here]
CITY OF SANTA ANA
C
Title:
D-1
Exhibit E to Resolution
CITY OF SANTA ANA CONTACTS FOR SCIP PROGRAM
Primary Contact
Name: Marc Morley
Title: Economic Development Manager
Mailing Address: 20 Civic Center, Santa Ana, CA 92702
Delivery Address (if different):
E-mail: mmorley@santa-ana.org
Telephone: (714) 647-6588
Fax:
Secondary Contact
Name: Sylvia Vazquez
Title: Economic Development Specialist II
Mailing Address: 20 Civic Center, Santa Ana, CA 92702
Delivery Address (if different):
E-mail: svazquez@santa-ana.org
Telephone: (714) 647-5445
Fax:
[Add additional contacts as neededl
E-1