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HomeMy WebLinkAboutReso 2012-188RESOLUTION NO. 2012-188 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE CITY OF CHULA VISTA TO JOIN THE STATEWIDE COMMUNITY INFRASTRUCTURE PROGRAM; AUTHORIZING THE CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY TO ACCEPT APPLICATIONS FROM PROPERTY OWNERS, CONDUCT SPECIAL ASSESSMENT PROCEEDINGS AND LEVY ASSESSMENTS WITHIN THE TERRITORY OF THE CITY OF CHULA VISTA; APPROVING FORM OF ACQUISITION AGREEMENT FOR USE WHEN APPLICABLE; AND AUTHORIZING RELATED ACTIONS WHEREAS, the California Statewide Communities Development Authority (the "Authority") is a joint exercise of powers authority the members of which include numerous cities and counties in the State of California, including the City of Chula Vista; and WHEREAS, the Authority has established the Statewide Community Infrastructure Program ("SC1P") to allow the financing of 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 capita] 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 WHEREAS, SCIP will also allow the financing of certain public capital improvements to be constructed by or on behalf of property owners for acquisition by the City of Chula Vista or another public agency (the "Improvements"); and WHEREAS, the City of Chula Vista desires to allow the owners of property being developed within its jurisdiction ("Participating Developers") to participate in SCIP and to allow the Authority to conduct assessment proceedings under the 1913 Act and 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 assessments; and WHEREAS, in each year in which eligible property owners within the jurisdiction of the City of Chula Vista elect to be Participating Developers, the Authority will conduct assessment proceedings under the 1913 Act and issue Local Obligations under the 1915 Act to finance Fees payable by such property owners and Improvements and, at the conclusion of such proceedings, will levy special assessments on such property within the territory of the City of Chula Vista; and Resolution No. 2012-188 Page No. 2 WHEREAS, there has been presented to this meeting a proposed form of Resolution of Intention to be adopted by the Authority in connection with such 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 of Chula Vista's official boundaries of record at the time of adoption of each 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 WHEREAS, 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 as part of its SCIP application; and WHEREAS, the City of Chula Vista will not be responsible for the conduct of any assessment proceedings; the levy or collection of assessments or any required remedial action in the case of delinquencies in such assessment payments; or the issuance, sale or administration of the Local Obligations or any other bonds issued in connection with SCIP; and WHEREAS, 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 Council concerning the significant public benefits of SCIP and the financing of the Improvements and the public capital improvements to be paid for with the proceeds of the Fees; and WHEREAS, The Development Services Director has reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA) and has determined that the activity is not a "Project" as defined under Section 15378 of the State CEQA Guidelines because it involves governmental administrative activities that will not result in direct or indirect physical changes to the environment. Therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines, the activity is not subject to CEQA. Thus, no environmental review is required. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista as follows: Section 1. The City of Chula Vista 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, execute a written consent to the levy of assessment 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. Reso]ution No. 2012-188 Page No. 3 Section 2. The City of Chula Vista hereby finds and declares that the issuance of bonds by the Authority in connection with SCIP will provide significant public benefits, including without limitation, savings in effective interest rate, bond preparation, bond underwriting and bond issuance costs and the more efficient delivery of local agency services to residential and commercial development within the City of Chula Vista. Section 3. The Authority has prepared and will update from time to time the "SCIP Manua] of Procedures" (the "Manual"), and the City of Chula Vista will handle Fee revenues and funds for Improvements for properties participating in SCIP in accordance with the procedures set forth in the Manual. Section 4. The form of Acquisition Agreement presented to this meeting is hereby approved, and the Mayor is authorized to execute and the City Clerk is authorized to attest the execution of a completed Acquisition Agreement in substantially said form and pertaining to the Improvements being financed on behalf of the applicable Participating Developer. Section 5. The appropriate officials and staff of the City of Chula Vista aze hereby authorized and directed to make SLIP applications available to all property owners who are subject to Fees for new development within the City of Chula Vista and/or who 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 C, together with any other staff persons chosen by the City Manager from time to time, are hereby designated as the contact persons for the Authority in connection with the SCIP program. Section 6. The appropriate officials and staff of the City of Chula Vista 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 of Chula Vista, as aze reasonably required by the Authority in accordance with the Manual to implement SCIP for Participating Developers and to evidence compliance with the requirements of federal and state law in connection with the 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 C, or other staff person acting in the same capacity for the City of Chula Vista with respect to SCIP, are hereby authorized and designated to declare the official intent of the City of Chula Vista with respect to the public capital improvements to be paid or reimbursed through participation in SCIP. Section 7. 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. Resolution No. 2012-188 Page No. 4 Presented by Gazy Hal rt, P.E., AICP Assistant City Manager/Director of Development Services Approved as to form by len R. Go gins ~ ey PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista, California, this 25th day of September 20 ] 2 by the following vote: AYES: Councilmembers: Aguilar, Bensoussan, Castaneda, Ramirez and Cox NAYS: Councilmembers: None ABSENT: Councilmembers: None Cheryl Cox, Ma r ATTEST: ~~~~ Donna R. Norris, CMC, City Clerk STATE OF CALIFORNIA COUNTY OF SAN DIEGO CITY OF CHULA VISTA I, Donna R. Norris, City Clerk of Chula Vista, California, do hereby certify that the foregoing Resolution No. 2012-188 was duly passed, approved, and adopted by the City Council at a regulaz meeting of the Chula Vista City Council held on the 25th day of September 2012. Executed this 25th day of September 2012. /2 ~, /Yv/tl~.-o Donna R. Norris, CMC, City Clerk Resolution No. 2012-188 Page No. 5 Exhibit "A" RESOLUTION OF INTENTION TO BE ADOPTED BY CSCDA RESOLUTION OF INTENTION OF THE CALIFORNIA STATEWIDE COMMUA'TTIES DEVELOPMENT AUTHORTTY TO FINANCE IMPROVEMENTS AND/OR THE PAYMENT OF DEVELOPMENT IMPACT FEES FOR PUBLIC CAPTTAL IMPROVEMENTS IN THE PROPOSED ASSESSMENT DISTRICT NO. (COUNT'Y OF SAN DIEGO, CALIFORNIA), APPROVING A PROPOSED BOUNDARY MAP, MAKING CERTAIN DECLARATIONS, FINDINGS AND DETER'11INATIONSCONCERNINGRELATED MATTERS, AND AUTHORIZING RELATED ACTIONS IN CONNECTION THEREWITH WHEREAS, under the authority of the Municipal improvement Act of 1913 (the "1913 Act"), being Division 12 (commencing with Sections 10000 and following) of the California Streets and Highways Code, the Commission (the "Commission") of the California Statewide Communities Development Authority (the "Authority") intends to finance, through its Statewide Community Infrastructure Progam, the payment of certain development impact fees for public capital improvements (the "Fees") and to finance certain public capital improvements to be constructed by or on behalf of the properly owner(s) and to be acquired by the City of Chula Vista or another local agency (the "Improvements"), both of which aze descnbed in Exhibit A attached hereto and by this reference incorporated herein, and all of which aze of benefit to the propeny within the proposed Assessment District No. (County of San Diego, Califomia) (the "Assessment District"); and WHEREAS, the Commission fmds that the land specially benefited by the Fees and Improvements is shown within the boundaries of the map entitled "Proposed Boundaries of Assessment District No. (County of San Diego, Califomia)," a copy of which map is om file with the Secretary and presented to this Commission meeting, and determines that the land within the exterior boundaries shown on the map shall be designated "Assessment District No. (County of San Diego, Califomia)." NOW, THEREFORE, BE IT RESOLVED that the Commission of the California Statewide Communities Development Authority hereby fmds, determines and resolves as follows: 1. The above recitals are true and correct, and the Commission so fmds and determines. 2. Pursuantto 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 Califomia Streets and Highways Code, the Commission hereby declares its intent to comply with the requirements of the 193 ] Act by complying with Part 7.5 thereof. 3. The Commission has or will designate a registered, professional engineer as Engineer of Work for this project, and hereby duects said firm to prepare the report containing the matters required by Sections 2961(b) and 10204 of the Streets and Highways Code, as supplemented by Section 4 of Article XIIID of the Califomia Constitution. 4. The proposed boundary map of fire Assessment District is hereby approved and adopted. Pursuant to Section 3111 of the Califomia Streets and Highways Code, the Secretary of the Authority is directed to file a copy of the map in the office of the County Recorder of the County of San Diego within fifreen (15) days of the adoption of this resolution. 5. The Commission determines that the cost of the Fees and Improvements shall be specially assessed against the lots, pieces or pazcels of land within the Assessment District benefiting from the payment of the Fees and the provision of the Improvements. The Commission intends to levy a special assessment upon such lots, pieces or parcels in accordance with the special benefit to be received by each such lot, piece or parcel of land, respectively, from the payment of the Fees and the provision of the Improvements. Resolution No. 2012-188 Page No. 6 6. The Commission intends, pursuant to subparagraph (f) of Section 10204 of the California Streets and Highways Code, to provide for an annual assessment upon each of the pazcels of land in the proposed assessment district to pay various costs and expenses iocutred 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 vazious funds and accounts pertaining thereto. 7. Bonds representing unpaid assessments, and bearing interest at a rate not to exceed twelve percent (12%) per annum, will be issued in the manner provided by the Improvement Bond Act of 1915 (Division 10, Streets and Highways Code), and the last installment of the bonds shall mature not to exceed thirty (30) years from the second day of September next succeeding twelve (12) months from their date. 8. The procedure for the collection of assessments and advance retirement of bonds under the Improvement Bond Act of 1915 shall be as provided in Part 1 I.1, Division 10, of the Streets and Highways Code of the State of California. 9. Neither the Authority nor any member agency thereof will obligate itself to advance available funds from its or they own funds or otherwise to core 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. ] 0. The amount of any surplus remaining in the improvement fund after payment of the Fees, acquisition of the Improvements and payment of al] claims shall be distributed in accordance with the provisions of Section 10427. ] of the Streets and Highways Code. 11. To the extent any Fees are paid to the Atthority 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 [hat made the payment [End of Form of Resolution of Intention] [Attach Exhibit A-description of development impact fees and public capital improvements. This exhibit will be prepared by Developer's Engineer, subject to SCIP review.] Resolution No. 2012-188 Page No. 7 Exhibit "B" ACQUISITION AGREEMENT Recitals A. The panes to this Acquisition Agreement (the "Agreement") are the City of Chula Vista, (the "Local Agency"), and [DEVELOPER], a [here indicate type of legal entity] (the "Developed'). B. The effective date of this Agreemrnt is , 20_ C. The Developer has applied for financing of certain public capita] improvements (the "Acquisition Improvements") and capital facilities fees though the Statewide Community Infrastructure Program ("SCIP") administered by the California Statewide Communities Development Authority (the "Authority") and such application has been approved by the Local Agency. D. Under SCIP, the Authority intends to issue bonds to fund, among other things, all or a portion of the costs of the Acquisition Improvements, and the portion of the proceeds of such bonds allocable to the cost of the Acquisition Improvements to be constructed and installed by the Developer, together with interest earned thereon prior to such acquisition, is referred to herein as the "Available Amount". E. SC1P 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 [he Acquisition Improvements from the Available Amount. Attached hereto as Exhibit A are descriptions of the Acquisition Improvements, which descriptions are subject to modification by written amendment of this Agreement, subject to the approval of the Authority. F. The parties anticipate that, upon completion of the Acquisition Improvements and subject to the teims and conditions of this Agreement, the Local Agency will acquire such completed Acquisition Improvements with the Available Amount. G. Any and al] monetary obligations of the Local Agency azising 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. H. in consideration of Recitals A through G, inclusive, and the mutual covenants, undertakings and obligations set forth below, the Local Agency and the Developer agree as stated below. Aazeement ARTICLE I DEFINITIONS: ASSESSMENT DISTRICT FORMATION AND FINANCING PLAN Section 1.01. Definitions. As used herein, the following capitalized teens shall have the meanings ascribed to them below: "Acceptable Title" means free and clear of al] 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 in his sole discretion not to interfere with the intended use and therefore are not required to be cleared from the title. Resolution No. 2012-188 Page No. 8 "Acquisition Unprovements" shall have the meaning assigned to such term in Recital C and are described in Exhibit A. "Acquisition Price" means the amount paid to the Developer upon acquisition of al] of the Acquisition Improvements as provided in Section 2.03. "Actual Cost" means the cost of construction of all of the Acquisition Improvements, as documented by the Developer to the satisfaction of the Local Agency, as certified by the Local Agency Engineer in an Actual Cost Certificaze. "Actual Cost Certificate" shall mean a certificate prepared by the Developer detailing the Actual Cost of all of the Acquisition Improvement to be acquired hereunder, as revised by the Local Agency Engineer pursuant to Section 2.03. "Agreement" means this Acquisition Agreement, dated as of _ 20_, provided in Section 2.03. "Assessment District' means the assessment district established by the Authority pursuant to SCIP which includes the Developer's property for which the Acquisition Improvements are being funded. "Authority" means the Califomia Statewide Communities Development Authority. "Available Amount" means the amount of funds deposited in the Developer Acquisition Account by the Authority pursuant to SCIP, together with any interest earnings thereon. "Code" means the Streets and Highways Code of the State of California. "Developer" means [Developer], a [here indicate type of legal entity]. "[Developer] Acquisition Account" means the account by that name established by the Authority pursuant to SCIP for the purpose of paying the Acquisition Price of the Acquisition Irrtprovements. "Local Agency" means the City of Chula Vista. "Local Agency Engineer" means the Director of Public Works of the Local Agency (the "Director") or the designee of [he Director, who will be responsible for administering the acquisition of the Acquisition Improvements hereunder. "Project" means the land development program of the Developer pertaining to the Developer's property in the Assessment District, including the desigt and construction of the Acquisition Improvements and the other public and private improvements to be wnstructed by the Developer within or adjacent to the Assessment District. "SCIP" means the Statewide Community Infrastructure Program of the Authority. "SCIP Requisition" means a requisition for payment of funds from the [Developer] Acquisition Account in substan5ally the form attached hereto as Exhibit B. "SCIP Trust Agreement" means the Tmst Agreement entered into by the Authority and the SCIP Trustee in connection with the fmancing for the Acquisition Improvements. Resolution No. 2012-188 Page No. 9 "SCIP Trustee" means A~ells Fargo Bank, National Association, as trustee under the SCIP Trust Agreement "Title Documents" means, for each Acquisition Improvement acquired hereunder, a grant deed or similar instrument necessary to transfer title to any real property or interestr therein (including easements) necessary or convenient to the operation, maintenance, rehabilitation and improvement by the Local Agency of that Acquisition Ltnprovement (including, if necessary, easements for ingress and egress) and a Bill of Sale or similar instrument evidencing transfer of title to that Acquisition Improvement (other than said real property interests) to the Local Agency, where applicable. Section 1.02. Participation in SCIP. Developer has applied for financing thorough 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 the SCIP fmancing for the Acquisition Improvements. 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 [Developer] Acquisition Account. (b) The Authority will cause the SCIP Trustee to establish and maintain the [Developer] Acquisition Account for the purpose of holding all funds for the Acquisition Improvements. All earnings on amounts in the (Developer] Acquisition Account shall remain in the [Developer] Acquisition Account for use as provided herein and pursuant to SCIP. The amounts in the [Developer] Acquisition Account shall be withdrawn by the Local Agency in accordance with SCIP procedures upon completion of the Acquisition Improvements within 30 days (or as soon thereafter as reasonably practicable) of receipt by the Local Agency of the certification of the Local Agency Engineer required by Section 2.03 of this Agreement, and subject to satisfaction of all other conditions precedent to such acquisition putsuant.to Section 2.04 of this Agreement, to pay the Acquisition Price of such completed 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 [Developer] Acquisition Account (less any amount determined by the Local Agency as necessary to reserve for claims against such account) (i) shall be applied io pay the costs of any additional improvemenu 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 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 1.04. No Local Aeencv Liability; Local Aeencv Discretion; No Effect on Other Aereements. In 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 they respective obligations under any other agreements, public improvement standards, land use regulations or subdivision requirements related to the Project, which obligations are and shat] remain independent of the Developer's and the Local Agency's rights and obligations under this Agreement. ARTICLE II Resolution No. 2012-188 Page No. 10 DESIGN. CONSTRUCTION AND ACQUISITION OF ACQUISITION IMPROVEMENTS Section 2.01. Letting and Administerin¢ Desi® 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 eligtble 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 az 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.D2. Letting and Administration of Construction Contracts. State law requires that all Acquisition Improvements shall be constructed as if they were constructed under the direction and supervision of the Local Agency. In order to assure compliance with those provisions, except for any contracts entered into prior to the date hereof, Developer agees to comply with the guidelines of the Local Agency for letting and administering said contracts. The Developer agees that all such contracu shall call for payment of prevailing wages as required by the Labor Code of the State of California. Section 2.03. Sale of Acquisition Imnrovements. The Developer agees [o sell [o the Local Agency the Acquisition Improvements to be constructed by Developer (including any rightsof--way or other easements necessary for the operation and maintenance of the Acquisition Improvements, to the extent not already publicly owned) when such Acquisition Improvements are completed to the satisfaction of the Luca] Agency for an amount not to exceed the lesser of (i) the Available Amount or (ii) the Actual Cost of the Acquisition Improvements. Exhibit A, attached hereto and incorporated herein, contains a list of each Acquisition Improvement. At the time of completion of each Acquisition Improvement, the Developer shall deliver to the Lora] Agency Engineer a written request for acquisition, accompanied by an Actual Cost Certificate and executed Title Documents for the transfer of the Acquisition Improvement, where necessary. 1n the event that the Local Agency Engineer fmds that the supporting paperwork submitted by the Developer fails to demonstrate the required relationship between the subject Actual Cost and the related Acquisifion Improvement, 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 such further documentation is still not adequate, [he Local Agency Engineer may revise the Actual Cost Certificate to delete any disallowed items, and such determination shall be final and conclusive. In the event that the Actual Cost is in excess of the Available Amount, the Local Agency shall withdraw the Available Amount from the [Developer] 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 [Developer] Acquisition Account equal to the Actual Cost, and shall transfer said amount to [he Developer. Any amounts then remaining in the [Developer] Acquisition Account shall be applied as provided in Section 1.03. In no event shall the Local Agency be required [o pay the Developer more than the amount on deposit in the [Developer] Acquisition Account at the time such payment is requested. Section 2.04. Conditions Precedent to Payment of Acquisition Price. Payment by the Local Agency to the Developer from the [Developer] Acquisition Account of the Acquisition Price for an Acquisition Improvement shall be conditioned fvst upon the determination of the Local Agency Engineer, pursuant to Section 2.03, that such Acquisition Improvement is al] complete and ready for acceptance by Resolution No. 2012-188 Page No. 11 the Local Agency, and shall be further conditioned upon prior 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 as evidence that the property which is subject to the special assessment liens of the Assessment District is not subject to any prospective mechanics lien claim respecting the Acquisition Improvements. (b) The Developer shall be current in the payment of all due and payable property taxes and installments for the special assessments of the Assessment District on property owned by the Developer or under option to the Developer. (c) The Developer shall certify thaz it is not th 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, rightof--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 behveen 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 SC1P Trustee and the SCIP Trustee shall make payment duectly 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 hnprovements 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 famished a copy of such official statement and shall not have objected thereto); and provided, further, that nothing in this Resolution No. 2012-188 Page No. 12 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 aze 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 a5 releasing the Developer or the Local Agency from any condition of development or requ'vement 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. Alf invoices for payment, reports, other communication and notices relating to this Agreement shall be mailed to: If to the Local A eg ncv: Director of Public Works [Address] If to the Developer: Resolution No. 2012-188 Page No. 13 [Developer] [Address to Come] Either party may change its address by giving notice in writing to the other party. Section 3.08. Severabiliri. 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 righu 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 Ageement. Section 3.11. Sineular 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. ThisAgrcement may be executed in counterparts, each of which shall be deemed an original. Section 3.13. Successors and Assiens. This Agreement is binding upon the heirs, assigns and suceessors-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 [o 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 a[ 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. [THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK] Resolution No. 2012-188 Page No. 14 IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year written above. By Mayor/Board Chair ATTEST: City Clerk By [DEVELOPER], a [here indicate type of legal entity] By _ (Sigaature) " (Print Name) Resolution No. 2012-188 Page No. 15 Exhibit A to Acquisition Agreement DESCRIPTION OF ACQUISITION IMPROVEMENTS AND BUDGETED AMOUNTS ACOUISITION APROVEMENTS BUDGETED AMOUNTS I. 2. 3. 4. Resolution No. 2012-188 Page No. 16 Et:ltibit B to Acgnisilioo Agreement FORM OF SCIP REQUISITION To: Bond Logistix LLC SCIP Program Administrator 777 S. Figueroa St., Suite 3200 Los Angeles, California 90017 Attention: Daniel Chang Fax: 213-612-2499 Re: Statewide Community infrastructure Program The undersigned, a duly authorized officer of the hereby requests a withdrawal from the [DEVELOPER] ACQUISITION ACCOUNT, as follows: Request Date: [Insert Date of Request] Name of Developer: [Developer] Withdrawal Amount: [Insert Acquisition Price] Acquisition Improvements: [Insert Description of Acquisition Improvement(s) from Ex. A] Payment Instructions: [Insert Wire Instructions or Payment Address for Developer] The undersigned hereby certifies as follows: 1. The Withdrawal is being made in accordance with a permitted use of 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 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. By: Title: 10 Resolution No. 2012-188 Page No. 17 EXI~IT C TO SCIP RESOLUTION CITY OF CHULA VISTA CONTACTS FOR SCIP PROGRAM Primary Contact Name: Janice Kluth Title: Senior Project Coordinator Mailing Address: 276 Fourth Avenue Delivery Address (if different): E-mail: jkluth@chulavistaca.gov Telephone: 619-691-5022 Fax: 619-585-5698 Secondary Contact Name: Maria Kachadoorian Title: Director of Finance Mailing Address: 276 Fourth Avenue, Chula Vista, CA 91910 Delivery Address (if different): E-mail: mkachadoorian@chulavistaca.gov Telephone: 619-409-5818 Fax: 619-585-5685 (Add additional contacts as needed] 1 CERTIFICATION OF RESOLUTION I, the undersigned, the duly appointed and qualified City Clerk of the City of Chula Vista, do hereby certify that the foregoing Resolution No. 2012-188 was duly adopted at a regular meeting of the City Council of the City of Chula Vista duly and regulazly held at the regular meeting place thereof on the 25th day of September, 2012, of which meeting all of the members of said City Council had due notice and at which a majority thereof were present. An agenda of said meeting was posted at least 72 hours before said meeting at 276 4~' Avenue, Chula Vista, California 91910, a location freely accessible to members of the public, and a brief description of said resolution appeared on said agenda. I have carefully compared the foregoing with the original minutes of said meeting on file and of record in my office, and the foregoing is a full, true and correct copy of the original resolution adopted at said meeting and entered in said minutes. Said resolution has not been amended, modified or rescinded since the date of its adoption and the same is now in full force and effect. Dated: October 4, 2012 ti City Clerk City of Chula Vista By: Donna R. Norris, CMC, City Clerk [Seal] OHSUSA:751555697.1