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HomeMy WebLinkAbout24473RESOLUTION NO. 24473 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, AMENDING RESOLUTION NO. 23671 RELATING TO PUBLIC FINANCING PROVIDING THROUGH THE STATEWIDE COMMUNITY INFRASTRUCTURE PROGRAM, ACCEPTANCE OF APPLICATIONS FROM PROPERTY OWNERS, CONDUCTING SPECIAL ASSESSMENT PROCEEDINGS, AND LEVYING ASSESSMENTS WITHIN THE TERRITORY OF THE CITY OF PALM SPRINGS, AND APPROVING THE STANDARD FORM ACQUISITION AGREEMENT FOR USE WHEN APPLICABLE. 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 Palm Springs (the "City"); and WHEREAS, the Authority has established the Statewide Community Infrastructure Program ("SCIP") to allow the financing of certain development impact fees (the "Fees") levied in accordance with the Mitigation Fee Act (California Government Code Sections 66000 et seq.) 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 1 0000 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 allows the financing of certain public capital improvements to be constructed by or on behalf of property owners for acquisition by the City of another public agency (the "Improvements"); and WHEREAS, the City Council adopted Resolution No. 23671 on October 1, 2014, ("Resolution 23671 "), allowing 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, Resolution 23671 approved proposed forms of Resolution of Intention to be adopted by the Authority in connection with assessment proceedings ("ROI") and acquisition agreement to be approved as to form for use with respect to any Resolution No. 24473 Page2 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 ("Acquisition Agreement"); and WHEREAS, Section 4 of Resolution 23671 identified that the Mayor is the authorized representative to execute the completed Acquisition Agreement; and WHEREAS, Section 2.08.020 "Authorization to execute documents," of the Palm Springs Municipal Code allows for all documents specified in Section 40602 of the California Government Code may be executed by the City Manager or other named subordinate city officer whenever such authorization is granted in a resolution, motion, or minute order adopted by the city council; and WHEREAS, Section 5 of Resolution 23671 specified that City staff are authorized and directed to make SCIP applications available to all property owners who are subject to Fees for new development within the City, and/or who are conditioned to install Improvements and to inform such owners of their option to participate in SCIP; and WHEREAS, the City Council has determined that it is in the City's best interests, and will advance the public health, safety and welfare to identify the specific type of new development projects that will be authorized to participate in SCIP, through an amendment to Resolution 23671, attached hereto and incorporated by this reference herein as EXHIBIT A, which amendment establishes, by Resolution approved by the City Council, a policy providing for public financing of Fees and/or Improvements for certain residential projects, inclusive of City Manager execution of all documents. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PALM SPRINGS DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. The foregoing Recitals are true, correct and incorporated by this reference herein, inclusive of all definitions and exhibits, as the basis, and findings in support of this Resolution. SECTION 2. Section 1 of Resolution 23671 adopted by the City Council of the City of Palm Springs on October 1, 2014, is hereby amended in its entirety to read: The City hereby authorizes the City Manager, upon City Council approval determined on a case-by-case basis, to conduct 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. .. (3) To the extent anything in this Resolution may be deemed to require SCIP proceedings, this Section 1 shall control. Resolution No. 24473 Page 3 SECTION 3. Section 4 of Resolution 23671 adopted by the City Council of the City of Palm Springs on October 1, 2014, is hereby amended in its entirety to read: Subject to the City Council's prior review and approval of a Participating Developer's new development project for participation in SCIP, pursuant to Section 5 of Resolution 23671 adopted by the City Council of the City of Palm Springs on October 1, 2014, as further amended herein pursuant to Section 2 of this Resolution, the form of Acquisition Agreement is hereby approved, and the City Manager is authorized to execute and the City Clerk is authorized to attest the execution of the completed Acquisition Agreement in substantially said form and pertaining to the Improvements being financed on behalf of the applicable Participating Developer. SECTION 4. Section 5 of Resolution 23671 adopted by the City Council of the City of Palm Springs on October 1, 2014, is hereby amended in its entirety to read: The City Council shall review and consider new residential development projects for participation in SCIP, and evaluate whether such new residential development projects meet the minimum requirements for participation in SCIP in accordance with such policies as may be established from time to time by the City Council, (hereafter referred to as the "Residential Financing Policy''). Only new residential development projects that meet the Residential Financing Policy may be considered for participation in SCIP for purposes of publicly financing Fees and/or Improvements. An affirmative review and approval by the City Council shall be required for any new residential development project to participate in SCIP prior to the City's appropriate officials and staff having any authorization to execute and deliver such applications and documents to SCIP for public financing of Fees and/or Improvements of a new residential development project. Subject to the City Council's approval of SCIP participation for a new residential development project, the appropriate officials and staff of the City are hereby authorized to make SCIP applications available to the Participating Developer of the new residential development project that is subject to Fees and/or conditioned to install Improvements; 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. Commercial or other non- residential projects, including hotel projects, are hereby authorized to participate in SCIP without further review and approval by the City Council, and appropriate officials and City staff of the City are hereby authorized to make SCIP applications available to the Participating Developer of a new commercial or non-residential development project requesting participation in SCI P. Resoluti o n No. 24473 Pa ge 4 SECTION 5 . This Resolution amends and is supplemental to Resolution 23671. All of the terms , conditions, and provisions of Resolution 23671, including without limitation the exhibits thereto, unless specifically modified herein, remain and shall continue in full force and effect. In the event of any conflict or inconsistency between a provision of this Resolution and any provision of the Resolution 23671 , the provisions of this Resolution shall in all respects govern and control. SECTION 6. 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. ADOPTED THIS 18TH DAY OF JULY , 2018 . ~~~ David H . Ready , Esq:<O City Manager ATTEST: Resolution No. 24473 Page 5 STATE OF CALIFORNIA ) CERTIFICATION COUNTY OF RIVERSIDE ) ss. CITY OF PALM SPRINGS) I, Anthony J. Mejia , MMC , City Clerk of the City of Palm Springs, hereby certify that Resolution No. 24473 is a full, true and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Palm Springs on July 18, 2018 by the following vote: AYES: NOES: ABSENT: ABSTAIN: Councilmembers Kors , Mayor ProTem Roberts, and Mayor Moon Councilmembers Holstege and Middleton None None IN WITNESS WHEREOF , I have hereunto set my hand and aff ixed the official seal of the City of Palm Springs, California , this 2 1 *"' day of k-a.-.~ , 20cc d-~~ n ti1011Yi)A~ City Clerk EXHIBIT A RESOLUTION NO. 23671 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, AUTHORIZING THE CITY 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 PALM SPRINGS, AND APPROVING THE STANDARD FORM ACQUISITION AGREEMENT FOR USE WHEN APPLICABLE. WHEREAS, the California Statewide Communities Development Authority (the "Authority") is a joint exercise of powers authority the members of which inctude numerous cities and counties in the State of California, including the City of Palm Springs (the "City"): and WHEREAS, the Authority has established the Statewide Community Infrastructure Program ("SCI P") to allow the financing of certain development impact fees (the .. Fees 11 ) 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 WHEREAS, SCI P wilt also allow the financing of certain public capital improvements to be constructed by or on behalf of property owners for acquisition by the Crty or another public agency (the "lmprovements11 ); and WHEREAS, 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 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 elect to be Participating Developers, the Authority will conduct assessment proceedings under the 1913 Act and issue Local Obligations under the 1915 Act to Exhibit A to Resolution __ _ Page 1 of 22 93 Resolution No. 23671 Page2 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; 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 UROI"), a copy of which is attached hereto as Exhibit A. and the terrHory within which assessments may be levied for SCIP (provided that each Partic;pating Developer consents to such assessment) shall be coterminous with the City'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 fn this Resolution pursuant to Sectjon 1 01 04 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 Exhibft B. to be approved as to form for use with respect to any Improvements to be construded 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 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 LocaJ 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. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, DOES HEREBY RESOLVE AS FOLLOWS: . SECTION 1. 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, execute a written consent to the levy of assessment in connection with SCIP by the Exhibit A to Resolution ___ _ Page 2 of22 94 Resolution No. 23671 Page3 Authority and execute an assessment ballot in favor of such assessment in compliance with the requirements of Section 4 of Article XI liD of the State Constitution. SECTION 2. The City 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 resident;al and commercial development within the City. SECTION 3. 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 rmprovements 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 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/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 Exhjbit 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 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 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 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. Exhibit A to Resolution ___ _ Page 3 of22 95 Resolution No. 23671 Page4 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. ADOPTED THIS 1sr DAY OF OCTOBER, 2014. .., 2~ . ~ ~ --- David H. Ready, Ci~ ATTEST: CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss. CITY OF PALM SPRINGS ) I, JAMES THOMPSON, City Clerk of the City of Palm Springs, California, hereby certify that Resolution No. 23671 was adopted by the Palm Springs City Council at a regular meeting held on the 18 ' of October, 2014, by the following vote: AYES: NOES: ABSENT: ABSTAIN: Councilmember Foat, Councilmember Lewin, Councilmember MiUs, Mayor Pro Tern Hutcheson, and Mayor Pougnet. None. None. None. mes Thompson, City Clerk 1 0 / z 0 J £0 t...f. Exhibit A to Resolution __ _ Page 4 of 22 96 Resolution No 23671 Page5 EXHIBIT A TO THE RESOLUTION FORM OF RESOLUTION OF INTENTION TO BE ADOPTED BY CSCOA RESOLUTION OF INTENTION OF THE CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY TQ FINANCE IMPROVEMENTS AND/OR THE PAYMENT OF DEVELOPMENT IMPACT FEES FOR PUBLIC CAPITAL IMPROVEMENTS IN THE PROPOSED ASSESSMENT DISTRICT NO. {COUNTY OF RIVERSIDE, CALIFORNIA), APPROVING A PROPOSED BOUNDARY MAP, MAKING CERTAIN DECLARATfONS, 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 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 capi1al improvements as described in Exhibit A attached hereto and by this reference incorporated herein (the "Fees") and 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 or another local agency {the "Improvements"), all of which are of benefit to the property within the proposed Assessment District No. (County of Riverside, California) (the "Assessment District"); and WHEREAS, the Commission finds that the land specially benefited by the Fees and the Improvements is shown within the boundaries of the map entitled uProposed Boundaries of Assessment District No. (County of Riverside, 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 4'Assessment District No. (County of Riverside, California)". NOW, THEREFORE, BE IT RESOLVED that the Commission of the California Statewide Communities Development Authority hereby finds, determines and resolves as follows: 1. The above recitals are true and correct, and the Commission so finds and determines. 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 California Streets and Highways Code, the Exhibit A to Resolution ___ _ Page 5 of22 97 Resolution No. 23671 Page6 Commission hereby declares its intent to comply with the requirements of the 1931 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 directs said finn 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 California Constitution. 4. The proposed boundary map of the Assessment District is hereby approved and adopted. Pursuant to Section 3111 of the California 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 Riverside within fifteen (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 parcels 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. 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 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. 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 11.1, 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 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. Exhibit A to Resolution ___ _ Page 6 of 22 98 Resolution No. 23671 Page7 10. The amount of any surplus remammg in the improvement fund after payment of the Fees, acquisition of the Improvements and payment of all claims shall be distributed in accordance with the provisions of Section 1 0427.1 of the Streets and Highways Code. 11. To the extent any 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. [End of Form of Resolution of Intention) Exhibit A to Resolution ___ _ Page 7 of 22 99 Resolution No. 23671 Page8 EXHIBIT B TO THE RESOLUTION FORM OF ACQUISITION AGREEMENT CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY STATEWIDE COMMUNITY INFRASTRUCTURE PROGRAM ACQUISITION AGREEMENT BY AND BETWEEN CITY OF PALM SPRINGS AND [DEVELOPER] Dated as of , 20 Exhibit A to Resolution __ _ Page 8 of 22 1 00 Resolution No. 23671 Page 15 and against aU actions, damages, claims, losses or expenses of every type and description to which they may be subjected or put, by reason of, or resuHing 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 statemen1 and shall not have objected thereto); and provided, further, that nothing in this Section 3.01 shall Jimit 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 Exhibit A to Resolution ___ _ Page 15 of 22 107 Resolution No. 23671 Page 16 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 confliding 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 Aaency: City Manager City of Palm Springs 3200 Tahquitz Canyon Way P.O. Box 2743 Palm Springs, California 92262 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 3.1 0. 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 defauH 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. Exhibit A to Resolution ___ _ Page 16 of 22 108 Resolution No. 23671 Page 17 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. [THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK] Exhibit A to Resolution ___ _ Page 17 of 22 109 Resolution No. 23671 Page 18 IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year written above. CJTY OF PALM SPRINGS By ATTEST: City Manager City Clerk By ______________________ __ [DEVELOPER], a [here indicate type of legal entity] By ____________________ __ (Signature) (Print Name) Exhibit A to Resolution _____ _ Page 18 of 22 110 Resolution No. 23671 Page 13 Section 2.02. 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 agrees to comply with the guidelines of the Local Agency for letting and administering said contracts. The Developer agrees that all such contracts shall call for payment of prevailing wages as required by the Labor Code of the State of California. Section 2.03. Sate of Acauisition Improvements. The Developer agrees to sell to the Local Agency the Acquisition Improvements to be constructed by Developer (including any rights-of-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 Local Agency for an amount not to exceed the lesser of 0) 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 Local Agency EngJneer a written request for acquisition, accompanied by an Actual Cost Certificate and executed Title Documents for the transfer of the AcquisHion 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 the related Acquisition 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. the 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 the 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 to 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 Acauisition Prioe. Payment by the Local Agency to the Developer from the (Developer] Acquisition Account of the Acquisition Price for an Acquisition Improvement shall be conditioned first upon the determination of the Local Agency Engineer, pursuant to Section 2.03. that such Acquisition Improvement is all complete and ready for acceptance by the Exhibit A to Resolution ___ _ Page 13 of 22 105 Resolution No. 23671 Page 14 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 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 Reauisition. 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 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 a.nd 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 SCtP Requisition on its face without any further duty of investigation. ARTICLE Ill MISCELLANEOUS Section 3.01.1ndemnrrscation 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 Exhibit A to Resolution ___ _ Page 14 of 22 106 Resolution No. 23671 Page 11 Acquisition Improvements. "Local Agency" means the City of Palm Springs . .. Local Agency Engineer" means the Director of Public Works of the Local Agency (the "Directorn) or the designee of the Director, who will be responsible for administering the acquisition of the Acquisition tmprovements hereunder. "Project" means the 'and development program of the Developer pertaining to the Developer's property in the Assessment District. including the design and construction of the Acquisition Improvements and the other public and private improvements to be constructed 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 substantially the form attached hereto as Exhibit B. I'SCIP Trust Agreemenr means the Trust Agreement entered into by the Authority and the SCIP Trustee in connection with the financing for the Acquisition Improvements. "SCIP Trustee" means Wells 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 interests therein (including easements) necessary or convenient to the operation, maintenance. rehabilitation and improvement by the Local Agency of that Acquisition Improvement (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. Particioation 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 SCIP financing for the Acquisition Improvements. Section 1.03. Deposit and Use of Availabre Amount. (a} Upon completion of the SCI P financing, the Available Amount will be deposited by the Authority in the [Developer] Acquisition Account. Exhibit A to Resolution ___ _ Page 11 of 22 103 Resolution No. 23671 Page 12 (b) The Authority will cause the SCfP 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 LocaJ 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 pursuant to Section 2.04 of this Agreement, to pay the Acquisition Price of such completed Acquisition Improvements, as specified in Article ll.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 to pay the costs of any additional 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 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 Agency Liability; Local Agency Discretion: No Effect on Other Agreements. 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 Developers 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 onfy 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. Exhibit A to Resolution ___ _ Page 12 of 22 104 Resolution No. 23671 Page9 ACQUISITION AGREEMENT Recitals A. The parties to this Acquisition Agreement (the "Agreementd) are the CITY OF PALM SPRINGS, (the "Local Agency"), and [DEVELOPER], a [here indicate type of legal entity] (the .. Developer'). B. The effective date of this Agreement is ___ , 20_. C. The Developer has applied for financing of certain public capital 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. SCIP 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 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 terms and conditions of this Agreement, the Local Agency will acquire such completed Acquisition Improvements with the Available Amount. G. 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. 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. Exhibit A to Resolution ___ _ Page 9 of22 101 Resolution No. 23671 Page 10 Agreement ARTICLE I DEFINITIONS; ASSESSMENT 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 in his sole discretion not to interfere with the intended use and therefore are not required to be cleared from the title. "Acquisition Improvements" shall have the meaning assigned to such tenn in Recital C and are described in Exhibit A. "Acquisition Price" means the amount paid to the Developer upon acquisition of all 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 Certificate. "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_. "Assessment District" means the assessment district established by the Authority pursuant to SCIP which includes the Developers property for which the Acquisition Improvements are being funded. "Authority" means the California Statewide Communities Development Authority. "Available Amount" means the amount of funds deposited in the Developer Acquisition Account by the Authority pursuant to SCI P, 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 Exhibit A to Resolution ___ _ Page 10 of 22 102 Resolution No. 23671 Page 19 EXHIBIT A TO THE ACQUISITION·AGREEMENT DESCRfPTION OF ACQUISITION IMPROVEMENTS AND BUDGETED AMOUNTS 1. 2. 3. 4. ACQUISITION IMPROVEMENTS BUDGETED AMOUNTS $ Exhibit A to Resolution __ _ Page 19 of 22 111 Resolution No. 23671 Page 20 EXHIBIT 8 TO THE ACQUISITION 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 CITY OF PALM SPRINGS hereby requests a withdrawal from the [DEVELOPER] ACQUISITION ACCOUNT, as follows: Request Date: Name of Developer: Withdraw a I Amount: [Insert Date of Request) [Developer] [Insert Acquisition Price] Acquisition Improvements: [Insert Description of Acquisition fmprovement(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 PALM SPRINGS, 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 PALM SPRINGS By: Title: Exhibit A to Resolution ___ _ Page 20 of 22 112 Resolution No. 23671 Page 21 EXHIBIT C TO THE RESOLUTION CITY OF PALM SPRINGS CONTACTS FOR SCIP PROGRAM Primary Contact Name: Mr. John Raymond Title: Director of Community and Economic Development Mailing Address: P.O. Box 2743. Palm Springs, California 92263-2743 Delivery Address: 3200 E. Tahquitz Canyon Way, Palm Springs, California 92262 E-mail: john.raymond@palmspringsca.gov Telephone: 760-323-82 59 Fax: •. Secondary Contact Name: Title: Mailing Address: DeHvery Address (if different): E-mail: Telephone: Fax: (Add additional contacts as needed] Exhibit A to Resolution ___ _ Page 21 of 22 113 Resolution No. 23871 Page22 CERTIFICATION OF RESOLUTION I, the undersigned, the duly appointed and qualified City Clerk of the City of Palm Springs. do hereby certify that the foregoing Resolution No. was duly adopted at a regular meeting of the City Council of the City of Palm Springs duly and regularly held at the regular meeting place thereof on the day of , 2014. 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 ______________ _. 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 hu not been amended, modified or rescinded since the date of its adoption and the same is now in full force and effect. Dated: ______ ,, 2014 City Clerk City of Palm Springs By: [Seal] Exhibit A to Resolution __ _ Page 22 of22 114 Date: March27,20 19 City of Palm Springs Office of the City Clerk 3200 E. Ta hq uitz Canyo n Wa y • Palm Spr in gs, Cali fo rn ia 92262 Tel: 760.323.8206 • Fax: 760.322.8332 • TOO 760.864 .9527 • www.palmspringsca.gov From: Anthony J. Mejia, C ity c@ To : Fi le SUBJ ECT: Resolution No. 24473 , SC IP F in ancing On July 18 , 20 18 , th e Palm Springs City Coun c il adopted Resolution No. 24473 w ith amendments. Inadverte ntl y, the original and unmodifi ed version of the subject reso lu tion was executed. On March 27, 20 19, this err or was di scovered a nd the reso luti on was modifi ed as di rected by the C ity Co uncil. The revised resolution was c ircu lated for exec uti on and fi led into the record s of th e C ity .