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HomeMy WebLinkAbout07 - Formation of Community Facilities District for Uptown NewportCITY OF ms NEWPORT BEACH C941C1F0FL City Council Staff Report June 26, 2018 Agenda Item No. 7 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Dan Matusiewicz, Finance Director/Treasurer danm _newportbeachca.gov PREPARED BY: Dan Matusiewicz, Finance Director/Treasurer danm(a-)-newportbeachca.gov PHONE: (949) 644-3126 TITLE: Formation of Community Facilities District for Uptown Newport ABSTRACT: The Developer of the Uptown Newport development project has requested that a Community Facilities District ("CFD") be formed in order to finance public facilities and improvements. The City wishes to authorize California Statewide Communities Development Authority ("CSCDA") to form and administer the CFD and issue bonds instead of allocating City resources and City staff time. RECOMMENDATION: a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and b) Adopt Resolution No. 2018-44, A Resolution of the City Council of the City of Newport Beach, California: (1) Authorizing the California Statewide Communities Development Authority ("Authority') to Form a Community Facilities District within the Territorial Limits of the City of Newport Beach to Finance Certain Public Improvements, (2) Embodying a Joint Community Facilities Agreement Setting Forth the Terms and Conditions of the Community Facilities District Financing; (3) Approving an Acquisition Agreement among the Authority, the City and the Developer; and (4) Authorizing Staff to Cooperate with the Authority and its Consultants in Connection Therewith. FUNDING REQUIREMENTS: There is no fiscal impact related to this item. The Developer is responsible for all the costs associated of forming the CFD and issuing the bonds. There is no cost to the City's General Fund related to the adoption of the attached resolution. The Development Project will promote economic development, the stimulation of economic activity, and the increase of the tax base within the City. 7-1 Formation of Community Facilities District for Uptown Newport June 26, 2018 Page 2 DISCUSSION: The development project known as "Uptown Newport" in the City is owned by TSG — Parcel 1, LLC, a Delaware limited liability company and Uptown Newport Jamboree, LLC, a Delaware limited liability company (collectively, the "Developer or Shopoff'), and the Developer has requested the City to consider formation of a community facilities district. Uptown Newport is approved for 1,244 dwelling units and 11,500 square feet of commercial retail with the residential units being (455 apartments, 200 condominiums and 589 future units). Phase I of the project consists of the 455 apartments, the 200 condominiums and 6,500 square feet of commercial, although only the 200 -condo units and the 6,500 square feet of commercial will be subject to the CFD tax, as the developer of the apartments will contribute their share in cash. There is an Entitled Specific Plan, Certified EIR, a Development Agreement and a recorded Tract Map. The project is located on Jamboree Road and bounded by Birch Street and MacArthur Boulevard in downtown Newport Beach. The Uptown Newport development project will promote economic development, the stimulation of economic activity, and increase the tax base within the City. The CFD will be authorized to finance public capital facilities and improvements including: Preliminary and Incidental Expense and Appurtenant Work and Improvements, associated with the undergrounding of overhead utilities by Southern California Edison (SCE), and a City Park. The current budget includes $3,305,000 for the 1 acre City Park, and $3,250,000 for the 66 -kV utility undergrounding project. Pursuant to various private letter rulings, bond counsel is of the opinion the utility undergrounding project can be financed on a tax exempt basis as long asthe undergrounding does not increase capacity. The utility work will be done by SCE pursuant to a Rule 20B SCE Agreement with the City. The park will be constructed by the developer and acquired from bonds proceeds pursuant to an acquisition agreement, the form of which is attached to the Resolution as Exhibit C. The current bond estimate is approximately $8.0 MM. However, Exhibit D to the Resolution provides not to exceed parameters forthe bond issue given the preliminary nature of the current estimates and the fact that interest rates may change between now and the time of sale. Table 1 provides estimated costs of issuance. I0firm Service Amount Legal $70,000 Issuer (1 % of Par Amount) $79,000 Appraisal $22,000 Special Tax Consultant $40,000 Formation Costs $15,000 City Admin $20,000 Printing Trustee and Miscellaneous $13,000 Total $259,000 Note: CSCDA collects $10,000 from the levy in administrative costs every year. The Special Tax Administrator collects approximately $15,000 in administrative costs every year. 7-2 Formation of Community Facilities District for Uptown Newport June 26, 2018 Page 3 The City does not desire to allocate City resources and City staff time to the formation and administration of a community facilities district and to the issuance of bonds. Staff is proposing that the CFD be formed through the CSCDA. CSCDA offers CFD financing through the Statewide Communities Infrastructure Program ("SCIP"), of which the City has been a member since April 2015. The SCIP program affords the City the opportunity to provide CFD financing for development projects with considerably less risk than acting as issuer of the bonds. CSCDA will form the district and issue the bonds and as such will be responsible for handling the funds, administering the tax levy, filing continuing disclosure reports and foreclosing if there are late property tax payments. Per the attached resolution, the City acknowledges that CSCDA has adopted Local Goals and Policies and approves the use of those Local Goals and Policies in connection with the CFD. The Resolution, included as Attachment B, accomplishes the following: Authorizes the CSCDA to form a CFD, with boundaries substantially as shown in Exhibit A, to finance a proposed list of city facilities and public improvements at no cost to the City and without binding or obligating the City's general fund or taxing authority; Approves the list of facilities and improvements to be financed (Exhibit B); Provides that CSCDA is the issuer of any bonds and is fully responsible for their issuance and administration; Contains the provisions necessary to embody the requirements of and to constitute, along with the Joint Powers Agreement governing CSCDA (to which the City is a party), a joint community facilities agreement between the City and the Authority under the Mello -Roos Act; Authorizes the City Manager or designee to execute the form of Acquisition Agreement (Exhibit C) on behalf of the City in substantially the form as attached, with such changes as shall be approved by the City Manager after consultation with the City Attorney; and Authorizes the City Manager or their designee to cooperate with CSCDA and to execute certificates and documents in connection with a future bond issuance for the CFD. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. 7-3 Formation of Community Facilities District for Uptown Newport June 26, 2018 Page 4 NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENTS: Attachment A — Location of Facilities to be Financed within CFD Attachment B — Resolution No. 2018-44 with Exhibits A — D 7-4 Attachment A Location of Facilities to be Financed within CFD 7-5 Uptown Newport, L.P. Uptown Newport Beach Overall Site Newport CA. Illustrative JAMBOREE ROAD CFD COMPONENTS 1. 1 ACRE PUBLIC PARK 2.66 KV UNDERGROUND I w w ry U) U 0 30 60 120 0 c ValleyCrest DesignGroup Project No: 173863 Date: June 24, 2013 W1 Attachment B Resolution with Exhibits A — D 7-7 RESOLUTION NO. 2018- 44 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA: (1) AUTHORIZING THE CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY ("AUTHORITY") TO FORM A COMMUNITY FACILITIES DISTRICT WITHIN THE TERRITORIAL LIMITS OF THE CITY OF NEWPORT BEACH TO FINANCE CERTAIN PUBLIC IMPROVEMENTS; (2) EMBODYING A JOINT COMMUNITY FACILITIES AGREEMENT SETTING FORTH THE TERMS AND CONDITIONS OF THE COMMUNITY FACILITIES DISTRICT FINANCING; (3) APPROVING AN ACQUISITION AGREEMENT AMONG THE AUTHORITY, THE CITY AND THE DEVELOPER; AND (4) AUTHORIZING STAFF TO COOPERATE WITH THE AUTHORITY AND ITS CONSULTANTS IN CONNECTION THEREWITH WHEREAS, the City of Newport Beach ("City") is a municipal corporation and charter city duly organized and existing under and by virtue of the laws of the State of California (the "State"); WHEREAS, the California Statewide Communities Development Authority (the "Authority") is a California joint -exercise of powers authority lawfully formed and operating within the State pursuant to an agreement (the "Joint Powers Agreement") entered into as of June 1, 1988 under the authority of Title 1, Division 7, Chapter 5 (commencing with Section 6500) of the California Government Code; WHEREAS, the City is a party to the Joint Powers Agreement and by virtue thereof a member (a "Program Participant") of the Authority; WHEREAS, the Joint Powers Agreement was entered into to establish the Authority as an agency authorized to issue bonds to finance projects within the territorial limits of its Program Participants; WHEREAS, the Joint Powers Agreement authorizes the Authority to undertake financing programs under any applicable provisions of State law to promote economic development, the stimulation of economic activity, and the increase of the tax base within the jurisdictional boundaries of its Program Participants; WHEREAS, the "Mello -Roos Community Facilities Act of 1982," being Chapter 2.5, Part 1, Division 2, Title 5 (beginning with Section 53311) of the Government Code of the State (the "Act") is an applicable provision of State law available to, among other things, finance public improvements necessary to meet increased demands placed upon local agencies as a result of development; WHEREAS, there is a development project known as "Uptown Newport" (the "Development Project") in the City owned by TSG — Parcel 1, LLC, a Delaware limited 7-8 Resolution No. 2018 - Page 2 of 8 partnership and Uptown Newport Jamboree, LLC, a Delaware limited liability company (collectively, the "Developer") and the Developer has requested the City to consider formation of a community facilities district for the Development Project under the Act; WHEREAS, the City does not desire to allocate City resources and City staff time to the formation and administration of a community facilities district and to the issuance of bonds; WHEREAS, the Development Project will promote economic development, the stimulation of economic activity, and the increase of the tax base within the City; WHEREAS, both the Authority and the City are "local agencies" under the Act; WHEREAS, the Act permits two or more local agencies to enter into a joint community facilities agreement to exercise any power authorized by the Act; WHEREAS, the City desires to enter into such an agreement with the Authority to authorize the Authority to form a community facilities district within the territorial limits of the City to finance certain public improvements required of the Development Project; WHEREAS, a form of Acquisition Agreement (the "Acquisition Agreement") among the Authority, the City and the Developer has been presented to the City Council and is on file with the City Clerk; WHEREAS, nothing herein constitutes the City's approval of any applications, Development Project entitlements and/or permits, and such, to the extent required in the future, are subject to and contingent upon City Council approval following, to the extent applicable, environmental review in compliance with the California Environmental Quality Act; WHEREAS, nothing herein affects, without limitation, requirements for and/or compliance with any and all applicable and/or necessary improvement standards, land use requirements or subdivision requirements relating to the Development Project or any portion thereof, which obligations are and shall remain independent and subsisting; WHEREAS, all significant environmental effects for the development of the Uptown Newport Planned Community have been adequately addressed in the previously certified Environmental Impact Report No. ER2012-001 (SCH No. 2010051094) ("EIR"), which included a mitigation, monitoring and reporting program and statement of overriding considerations, and the City of Newport Beach intends to use said document for the approval of the creation of a Community Facilities District (CFD) to finance public improvements associated with the Uptown Newport Planned and its implementation. Copies of the previously prepared environmental document are available for public review and inspection at the Planning Division or at the City of Newport Beach website at www.newportbeachca.gov/ceqadocuments; 7-9 Resolution No. 2018 - Page 3 of 8 WHEREAS, none of the conditions described in Section 15162 of the CEQA Guidelines calling for preparation of a subsequent or supplemental EIR have occurred, and the CFD and its implementation do not require changes or additions to the EIR pursuant to Section 15164 of the CEQA Guidelines; WHEREAS, no new effects would occur, nor would a substantial increase in the severity of previously identified significant effects occur as the result of this CFD, and this CFD identifies the same previously approved project with refined detailed drawings, no increase in intensity, and no changes to the development standards; WHEREAS, there are no additional reasonable alternatives or mitigation measures that should be considered in conjunction with the CFD or its implementation; WHEREAS, the City Council finds that judicial challenges to the City's CEQA determinations and approvals of land use projects are costly and time consuming, and project opponents often seek an award of attorneys' fees in such challenges; WHEREAS, project applicants are the primary beneficiaries of such approvals, it is appropriate that such applicants should bear the expense of defending against any such judicial challenge, and bear the responsibility for any costs, attorneys' fees and damages which may be awarded to a successful challenger; and WHEREAS, the City Council is fully advised in this matter. NOW THEREFORE, the City Council of the City of Newport Beach resolves as follows: Section 1. The City hereby specifically finds and declares that the actions authorized hereby constitute and are with respect to municipal affairs of the City and the statements, findings and determinations of the City set forth in the recitals above and in the preambles of the documents approved herein are true and correct. Section 2. This resolution shall constitute full "local approval," under Section 9 of the Joint Powers Agreement, and under the Authority's Local Goals and Policies (see below), for the Authority to undertake and conduct proceedings in accordance herewith and under the Act to form a community facilities district (the "Community Facilities District") with boundaries substantially as shown on Exhibit A, attached hereto, to designate separate improvement areas within the Community Facilities District (each, an "Improvement Area"), to authorize a special tax within each Improvement Area and to issue bonds, in one or more series on a taxable or tax exempt basis, for each Improvement Area secured by the special taxes. Section 3. The Joint Powers Agreement, together with the terms and provisions of this resolution, shall together constitute a joint community facilities agreement between the City and the Authority under the Act. As, without this resolution, the Authority has no power to conduct proceedings under the Act to form the Community Facilities District, adoption by the Commission of the Authority of the Resolution of Intention to form the 7-10 Resolution No. 2018 - Page 4 of 8 Community Facilities District under the Act shall constitute acceptance of the terms hereof by the Authority. Section 4. This resolution and the agreement it embodies are determined to be beneficial to and are in the best interests of the future residents of the area within the Community Facilities District. Section 5. The City acknowledges that the Authority has adopted Local Goals and Policies as required by Section 53312.7 of the Act. The City approves the use of those Local Goals and Policies in connection with the Community Facilities District; provided that the terms of any series of bonds issued for the Community Facilities District shall not exceed the parameters listed on Exhibit D. Section 6. Pursuant to the Act and this resolution, the Authority may conduct proceedings under the Act to form the Community Facilities District and to have it authorize the financing of the facilities set forth on Exhibit B, attached hereto. All of the facilities are facilities that have an expected useful life of five years or longer and are facilities that the City or other local public agencies, as the case may be, are authorized by law to construct, own or operate, or to which they may contribute revenue. The facilities are referred to herein as the "Improvements," and the Improvements to be owned by the City are referred to as the "City Improvements." Section 7. The City Council certifies to the Commission of the Authority that all of the City Improvements are necessary to meet increased demands placed upon the City as a result of development occurring or expected to occur within the Community Facilities District. Joint community facilities agreements with each other local agency owning Improvements (any such local agency referred to herein as an "Other Local Agency") shall each contain a certification with respect to the Improvements to be owned by the Other Local Agency equivalent to that made by the City in this paragraph. Section 8. Prior to issuance of bonds, the Authority will apply the special tax collections within each Improvement Area to fund City Improvements as provided in the Acquisition Agreement, either for the acquisition of City Improvements or for the construction of City Improvements by the City. Following the issuance of bonds of an Improvement Area, the Authority will apply the special tax collections within the Improvement Area initially as required by the documents under which any bonds are issued; and thereafter, to the extent not provided in the bond documents, to the Authority's reasonable administrative costs incurred in the administration of the Community Facilities District. The Authority will remit any special tax revenues for any Improvement Area remaining after the final retirement of all bonds for such Improvement Area to the City and to each Other Local Agency in the proportions specified in the Authority's proceedings. The City will apply any such special tax revenues it receives for authorized City Improvements and its own administrative costs only as permitted by the Act. The joint community facilities agreements with each Other Local Agency must require such Other Local Agency to apply the special tax revenues they receive for their authorized Improvements under the Community Facilities District and for their own related administrative costs only as permitted by the Act. 7-11 Resolution No. 2018 - Page 5 of 8 Section 9. The Authority will administer the Community Facilities District, including employing and paying all consultants, annually levying the special tax and all aspects of paying and administering the bonds, and complying with all State and Federal requirements appertaining to the proceedings, including the requirements of the United States Internal Revenue Code. The City will cooperate fully with the Authority in respect of the requirements of the Internal Revenue Code and to the extent information is required of the City to enable the Authority to perform its disclosure and continuing disclosure obligations with respect to the bonds, although the City will not participate in nor be considered to be a participant in the proceedings respecting the Community Facilities District (other than as a party to the agreement embodied by this resolution) nor will the City be or be considered to be an issuer of the bonds or an obligated person for purposes of Rule 15c2-12. The Authority shall obtain a provision equivalent to this paragraph in the joint community facilities agreement with each Other Local Agency. Section 10. Upon the first levy of special tax within the Community Facilities District or any Improvement Area prior to the issuance of bonds for an Improvement Area, the Authority shall establish and maintain a special fund (which may be established with a bond trustee under an indenture or trust agreement) to be known as the "Uptown Newport Project Community Facilities District, Improvement Area No. _ Acquisition and Construction Fund." Special taxes collected within the applicable Improvement Area prior to the issuance of bonds shall be deposited in a separate account of the Acquisition and Construction Fund for such Improvement Area. If the Authority issues bonds for the Improvement Area and bond proceeds become available to finance the Improvements, the Authority shall deposit the portion of bond proceeds which is intended to be utilized to finance the Improvements in a separate account of the Acquisition and Construction Fund for such Improvement Area. The Acquisition and Construction Fund will be available both for City Improvements and for the Improvements pertaining to each Other Local Agency. Amounts in the Acquisition and Construction Fund shall be disbursed in accordance with the provisions of the indenture or other similar document governing the bonds issued for the applicable Improvement Area, the Acquisition Agreement and/or the relevant joint community facilities agreement or acquisition agreement for any Other Local Agency. Section 11. As respects the Authority and the Other Local Agencies, the City agrees to fully administer, and to take full governmental responsibility for, the construction or acquisition of the City Improvements including but not limited to environmental review, approval of plans and specifications, bid requirements, performance and payment bond requirements, insurance requirements, contract and construction administration, staking, inspection, acquisition of necessary property interests in real or personal property, the holding back and administration of retention payments, punch list administration, and the Authority and the Other Local Agencies shall have no responsibility in that regard. The City reserves the right, as respects the Developer, to require the Developer to contract with the City to assume any portion or all of this responsibility. The Authority shall obtain a provision equivalent to this paragraph in the joint community facilities agreement with each Other Local Agency. 7-12 Resolution No. 2018 - Page 6 of 8 Section 12. The City agrees to require the Developer to indemnify and to hold the Authority, its other members, and its other members' officers, agents and employees, and the Other Local Agencies and their officers, agents and employees (collectively, the "Indemnified Parties") harmless from any and all claims, suits and damages (including costs and reasonable attorneys' fees) arising out of the design, engineering, construction and installation of the City Improvements. The Authority shall obtain a provision equivalent to this paragraph in each joint community facilities agreement with each Other Local Agency naming the City and its officers, agents and employees as Indemnified Parties with respect to such Other Local Agency's Improvements. Section 13. As respects the Authority and each Other Local Agency, the City agrees — once the City Improvements are constructed according to the approved plans and specifications — to accept ownership of the City Improvements, to take maintenance responsibility for the City Improvements. Section 14. The City acknowledges the requirement of the Act that if the City Improvements are not completed prior to the adoption, by the Commission of the Authority, of the Resolution of Formation of the Community Facilities District, the City Improvements must be constructed as if they had been constructed under the direction and supervision, or under the authority of, the City. The City acknowledges that this means all City Improvements must be constructed under contracts that require the payment of prevailing wages as required by Section 1720 and following of the Labor Code of the State of California. The Authority makes no representation that this requirement is the only applicable legal requirement in this regard. The City reserves the right, as respects the Developer, to assign appropriate responsibility for compliance with this paragraph to the Developer. Section 15. The form of the Acquisition Agreement attached hereto as Exhibit C is hereby approved, and each of the City Manager, Assistant City Manager, or such person as the City Manager or Assistant City Manager shall designate (each, an "Authorized Officer") is authorized to execute, and deliver to the Developer, the Acquisition Agreement on behalf of the City in substantially that form, with such changes as shall be approved by the Authorized Officer after consultation with the City Attorney and the Authority's bond counsel, such approval to be conclusively evidenced by the execution and delivery thereof. Section 16. For City Improvements to be financed on an acquisition basis (that is, constructed by or on behalf of the Developer), after completion of the City Improvements and appropriate arrangements for the maintenance of the City Improvements, or any discrete portion thereof as provided in Section 53313.51 of the Act and in the Acquisition Agreement, to the satisfaction of the City, and in conjunction with the City's acceptance thereof, acquisition of the City Improvements shall be undertaken as provided in the Acquisition Agreement. For City Improvements to be financed on a construction basis (that is, constructed by the City or under contract with the City), the City may request disbursement from the special tax collections for reimbursement of the City or direct payment of costs in accordance with applicable law. 7-13 Resolution No. 2018 - Page 7 of 8 Section 17. The City hereby consents to the formation of the Community Facilities District in accordance with this resolution and consents to the assumption of jurisdiction by the Authority for the proceedings respecting the Community Facilities District with the understanding that the Authority will hereafter take each and every step required for or suitable for consummation of the proceedings, the levy, collection and enforcement of the special tax, and the issuance, sale, delivery and administration of the bonds, all at no cost to the City and without binding or obligating the City's general fund or taxing authority. Section 18. The terms of the Agreement embodied by this resolution may be amended by a writing duly authorized, executed and delivered by the City and the Authority, except that no amendment may be made after the issuance of the bonds by the Authority that would be detrimental to the interests of the bondholders without complying with all of the bondholder consent provisions for the amendment of the bond resolutions, bond indentures or like instruments governing the issuance, delivery and administration of all outstanding bonds. Section 19. Except to the extent of the City's agreement to take responsibility for and ownership of the City Improvements, no person or entity, including the Developer, shall be deemed to be a third party beneficiary of this resolution, and nothing in this resolution (either express or implied) is intended to confer upon any person or entity other than the Authority and the City (and their respective successors and assigns) any rights, remedies, obligations or liabilities under or by reason of this resolution. Section 20. The City shall be identified as a third -party beneficiary of all joint community facilities agreements between the Authority and the other local agencies to the extent of the provisions whereby the Other Local Agency agree to take responsibility for and ownership of their Improvements. Section 21. This resolution shall remain in force until all bonds have been retired and the authority to levy the special tax conferred by the Community Facilities District proceedings has ended or is otherwise terminated. Section 22. The City Council hereby authorizes and directs each Authorized Officer and other appropriate City staff to cooperate with the Authority and its consultants and to do all things necessary and appropriate to carry out the intent of this resolution and the Community Facilities District financing, and to execute any and all certificates and documents in connection with the bond issuance as shall be approved by an Authorized Officer after consultation with the City Attorney and the Authority's bond counsel. Section 23. The City Council hereby approves delivery of a certified copy of this resolution to the Authority's Bond Counsel, Orrick, Herrington & Sutcliffe LLP. Section 24. The recitals provided in this resolution are true and correct and are incorporated into the operative part of this resolution. 7-14 Resolution No. 2018 - Page 8 of 8 Section 25. If any section, subsection, sentence, clause or phrase of this resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby declares that it would have passed this resolution, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. Section 26. The requirement for environmental review under the California Environmental Quality Act ("CEQA") is satisfied by the City Council's previous certification of the Uptown Newport Planned Community final EIR (SCH No. 2010051094) (Resolution No. 2013-21). The finding of this Resolution is incorporated here by reference. Section 27. This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the resolution. ADOPTED this 26th day of June, 2018. Marshall "Duffy" Duffield Mayor ATTEST: Leilani I. Brown City Clerk APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE aron C. Harlf City Attorney Attachment(s): Exhibit A — Community Facilities District Boundaries Exhibit B — Authorized Improvements Exhibit C — Form of Acquisition Agreement Exhibit D — Project Description and Bond Parameters 7-15 EXHIBIT A COMMUNITY FACILITIES DISTRICT BOUNDARIES [ATTACHED] 7-16 SHEET 1 OF 1 PROPOSED BOUNDARIES OF CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY COMMUNITY FACILITIES DISTRICT NO. 2018-03 UPTOWN NEWPORT) i CITY OF NEWPORT BEACH COUNTY OF ORANGE P; 9 STATE OF CALIFORNIA (1) Filed in the office of the Secretary of California Statewide Communities Development Authority Y this da of 2018. t S , C x 0 m vpN Secretary, California Statewide Communities Development Authority (2) 1 hereby certify that the within map showing proposed boundaries of California Statewide Communities Development Authority Community Facilities District No. 2018-03 (Uptown Newport), City of Newport Beach, County of Orange, State of California, was approved by the Commission of the California Statewide Communities Development Authority at a regular meeting thereof, held on this particulars of lines and dimensions, Forday of 2018, by its resolution No. 445-133-07 reference is made to the parcels maps of 33-08 the Orange County Assessor, California, and \� to Tract map No. 17763 recorded on June 19, 2015 as instrument No. 201500320061 at Pages Secretary, California Statewide Communities Development Authority 17 through 23 in Book 937 of maps in the office of -17 the County Recorder of Orange County, California. LEGEND Proposed Boundaries of California Statewide Communities Development Authority Community Facilities District No. 2018-03 (Uptown Newport), City of Newport Beach, County of Orange, California - Parcel Line - Phase 1 Phase 2 445 -13n -nn Assessor Parcel Number Pkt.PAkkU BY DAVID IAUSSIG AND ASM X IA I" V4 (3) Filed this day of , 2018, at the hour of o'clock _ m., in Book of Maps of Assessment and Community Facilities Districts at page and as Instrument No. in the office of the County Recorder of Orange County, State of California. Hugh Nguyen Clerk -Recorder, County of Orange By Deputy Fee 7-17 EXHIBIT B AUTHORIZED IMPROVEMENTS 1. Preliminary and Incidental Expense and Appurtenant Work and Improvements Generally, for each of the following categories of public capital facilities to be acquired, constructed and installed on public property (including dedicated rights-of-way and public easements), the authorized facilities shall be deemed to include the cost and expense of mobilization, clearing, grubbing, protective fencing and erosion control, excavation, curb, gutter and sidewalks, base and finish paving, striping, traffic signage, traffic signals, streetlights, landscaping, irrigation, barricades, undergrounding of various utilities, and related appurtenant work and facilities, together with the cost and expense of engineering design, plan review, project management, construction -related surety bonds or like security instruments, construction staking and management, inspection, and any like fees and costs incidental to such acquisition, construction and installation. 2. Public Capital Improvements Undergrounding of overhead utilities. Park improvements, including but not limited to playground infrastructure, irrigation, landscaping, utilities, drainage and grading. 7-18 EXHIBIT C FORM OF ACQUISITION AGREEMENT ACQUISITION AGREEMENT BY AND AMONG CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY, CITY OF NEWPORT BEACH TSG — PARCEL 1, LLC and UPTOWN NEWPORT JAMBOREE, LLC Dated as of , 20 7-19 ACQUISITION AGREEMENT Recitals A. The parties to this Acquisition Agreement (the "Agreement") are the California Statewide Communities Development Authority (the "Authority"), City of Newport Beach, a California municipal corporation and charter city ("City"), Uptown Newport Jamboree, LLC, a Delaware limited partnership and TSG — Parcel 1, LLC, a Delaware limited liability company (collectively, the "Developer"). B. The effective date of this Agreement is , 20_ C. The Developer has applied for the financing of certain public capital improvements (each, as more particularly described on Exhibit A, an "Acquisition Improvement" and collectively, the "Acquisition Improvements") through the Authority. The Acquisition Improvements are to be owned and operated by the City, and the financing is to be accomplished through a Community Facilities District which will be established and administered by the Authority under and pursuant to the Mello -Roos Community Facilities Act of 1982 — California Government Code Sections 53311 and following (the "Act"). On [ ], 20_, the City adopted Resolution No. f authorizing the Authority to form a community facilities district (the "Community Facilities District") within the territorial limits of the City and designate improvement areas within the Community Facilities District (each, an "Improvement Area") to finance the Acquisition Improvements. On [ ], 20_, the Authority formed the Community Facilities District and, on the same date, a landowner election was conducted for each Improvement Area in which all of the votes were cast unanimously in favor of conferring the Community Facilities District authority on the Authority Commission. D. The Authority intends to levy special taxes for facilities and issue bonds for each Improvement Area, in one or more series, to fund, among other things, all or a portion of the Acquisition Improvements. The portion of the proceeds of such special taxes (including prepayments) and bonds allocable to the cost of the Acquisition Improvements, together with interest earned thereon, is referred to herein as the "Available Amount". E. The Community Facilities District will provide financing for the acquisition by the City of the Acquisition Improvements and the payment of the Acquisition Price (as defined herein) of the Acquisition Improvements from the Available Amount. Attached hereto as Exhibit A is a description of the Acquisition Improvements, which includes authorized discrete and usable portions, if any, of the Acquisition Improvements, pursuant to Section 53313.51 of the Act, to be acquired from the Developer. F. The parties anticipate that, upon completion of the Acquisition Improvements and subject to the terms and conditions of this Agreement, the City will acquire the completed Acquisition Improvements. G. Any and all monetary obligations of the City arising out of this Agreement are the special and limited obligations of the City payable only from the Available Amount, 7-20 and no other funds whatsoever of the City shall be obligated therefor under any circumstances. H. Attached to this Agreement are Exhibit A (Description of the Acquisition Improvements and the Eligible Portions thereof), Exhibit B (Disbursement Request Form for Acquisition Improvements) and Exhibit C (Bidding, Contracting and Construction Requirements for Acquisition Improvements), all of which are incorporated into this Agreement for all purposes. Agreement ARTICLE I DEFINITIONS; COMMUNITY FACILITIES 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 title (whether a fee interest, easement or other acceptable title or property rights) free and clear of all monetary liens, encumbrances, assessments, whether any such item is recorded or unrecorded, and taxes, except (i) those items which are reasonably determined by the City Engineer not to interfere with the intended use and therefore are not required to be cleared from the title, and (ii) the lien of the Community Facilities District or any other community facilities district or assessment district provided that the property owned by the City is exempt from such taxation or assessment. "Acquisition and Construction Fund" means each "Uptown Newport Community Facilities District Acquisition and Construction Fund" established by the Authority pursuant to the Resolution and Section 1.03 hereof for the purpose of paying the Acquisition Price of the Acquisition Improvements. "Acquisition Improvement" means a public capital improvement described in Exhibit A hereto. "Acquisition Price" means the total amount eligible to be paid to the Developer upon acquisition of an Acquisition Improvement as provided in Section 2.03, not to exceed the Actual Cost of the Acquisition Improvement. "Actual Cost" means the total cost of an Acquisition Improvement, as documented by the Developer to the satisfaction of the City and as certified by the City Engineer in an Actual Cost Certificate including, without limitation, (a) the Developer's cost of constructing such Acquisition Improvement including grading, labor, material and equipment costs, (b) the Developer's cost of designing and engineering the Acquisition Improvement, preparing the plans and specifications and bid documents for such Acquisition Improvement, and the costs of inspection, materials testing and construction staking for such Acquisition Improvement, (c) the Developer's cost of any performance, 7-21 payment and maintenance bonds and insurance, including title insurance, required hereby for such Acquisition Improvement, (d) the Developer's cost of any real property or interest therein that is either necessary for the construction of such Acquisition Improvement (e.g., temporary construction easements, haul roads, etc.), or is required to be conveyed with such Acquisition Improvement in order to convey Acceptable Title thereto to the City or its designee, (e) the Developer's cost of environmental evaluation or mitigation required for such Acquisition Improvement, (f) the amount of any fees actually paid by the Developer to governmental agencies in order to obtain permits, licenses or other necessary governmental approvals and reviews for such Acquisition Improvement, (g) the Developer's cost for construction and project management, administration and supervision services for such Acquisition Improvement, and (h) the Developer's cost for professional services related to such Acquisition Improvement, including engineering, accounting, legal, financial, appraisal and similar professional services. "Actual Cost Certificate" means a certificate prepared by the Developer detailing the Actual Cost of an Acquisition Improvement, or an Eligible Portion thereof, to be acquired hereunder, as may be revised by the City Engineer pursuant to Section 2.03. 20 "Agreement" means this Acquisition Agreement, dated as of [ j, "Authority" means the California Statewide Communities Development Authority. "Authority Trust Agreement" means a Trust Agreement entered into by the Authority and an Authority Trustee in connection with the issuance of bonds. "Authority Trustee" means the financial institution identified as trustee in an Authority Trust Agreement. "Available Amount" shall have the meaning assigned to the term in Recital D. "Bonds" means bonds or other indebtedness issued by the Authority that is to be repaid with Special Taxes. "City" means the City of Newport Beach, California. "City Engineer" means the Engineer of the City or his/her designee who will be responsible for administering the acquisition of the Acquisition Improvements hereunder. "Code" means the Government Code of the State of California. "Community Facilities District" shall have the meaning assigned to the term in Recital C. "Developer" means, collectively or severally, as appropriate, TSG — Parcel 1, LLC, a Delaware limited partnership and Uptown Newport Jamboree, LLC, a Delaware limited liability company, and their respective successors and assigns. 7-22 "Disbursement Request Form" means a requisition for payment of funds from an Acquisition and Construction Fund for an Acquisition Improvement, or an Eligible Portion thereof in substantially the form contained in Exhibit B hereto. "Eligible Portion" shall have the meaning ascribed to it in Section 2.03 below. "Improvement Area" means an improvement area of the Community Facilities District designated as such by the Authority in accordance with the Act. "Installment Payment" means an amount equal to ninety percent (90%) of the Actual Cost of an Eligible Portion. "Project" means the development of the property in the Community Facilities District, including the design and construction of the Acquisition Improvements and the other public and private improvements to be constructed by the Developer within the Community Facilities District. "Resolution" means City of Newport Beach Resolution No. , adopted [ 1, 20_ authorizing the execution and delivery of this Agreement. "Special Taxes" means annual special taxes for facilities, and prepayments thereof, authorized by the Community Facilities District to be levied by the Commission of the Authority within each Improvement Area. "Title Documents" means, for each Acquisition Improvement acquired hereunder, a grant deed or similar instrument necessary to transfer title to any real property or interests therein (including easements or rights of way), or an irrevocable offer of dedication of such real property with interests therein necessary to the operation, maintenance, rehabilitation and improvement by the City of the Acquisition Improvement (including, if necessary, easements for ingress and egress) and a bill of sale or similar instrument evidencing transfer of title to the Acquisition Improvement (other than said real property interests) to the City, where applicable. Section 1.02. Establishment of Community Facilities District. Developer has requested the City to permit the Authority to provide for financing of the Acquisition Improvements and collection of special tax through the establishment and authorization of the Community Facilities District and the City agreed by its adoption of the Resolution. The Community Facilities District was established by the Authority on [ ], 20_, and through the successful landowner election held that same day with respect to each Improvement Area of the Community Facilities District, the Commission of the Authority is authorized to levy the Special Taxes and to issue the Bonds to finance the Acquisition Improvements. Developer and the City agree to reasonably cooperate with one another and with the Authority in the completion of the financing through the issuance of the Bonds in one or more series for each Improvement Area. Section 1.03. Deposit and Use of Available Amount. 7-23 (a) Prior to the issuance of Bonds for each Improvement Area, Special Taxes collected by the Authority (including from prepayments of Special Taxes) shall be deposited in the Acquisition and Construction Fund established by the Authority pursuant to the terms of the Resolution, and may be disbursed to pay the Acquisition Price of Acquisition Improvements in accordance with Article II of this Agreement. All funds in the Acquisition and Construction Fund shall be considered a portion of the Available Amount, and upon the issuance of the Bonds the Acquisition and Construction Fund shall be transferred to the Authority Trustee to be held in accordance with the Authority Trust Agreement. (b) If not already established pursuant to the Resolution, upon the issuance of the Bonds of an Improvement Area, the Authority will cause the Authority Trustee to establish and maintain the Acquisition and Construction Fund for the purpose of holding all funds for the Acquisition Improvements to be financed by such Improvement Area. All earnings on amounts in the Acquisition and Construction Fund shall remain in the Acquisition and Construction Fund for use as provided herein and pursuant to the Authority Trust Agreement. Money in such Acquisition and Construction Fund shall be available to respond to delivery of a Disbursement Request Form and to be paid to the Developer or its designee to pay the Acquisition Price of the Acquisition Improvements, as specified in Article II hereof. Upon completion of all of the Acquisition Improvements and the payment of all costs thereof, any remaining funds in the Acquisition and Construction Fund (less any amount determined by the City as necessary to reserve for claims against the account) (i) shall be applied to pay the costs of any additional Acquisition Improvements eligible for acquisition with respect to the Project, as approved by the Authority and, to the extent not so used, (ii) shall be applied by the Authority to call Bonds for such Improvement Area or to reduce Special Taxes for such Improvement Area as the Authority shall determine. Section 1.04. No City Liability; City Discretion; No Effect on Other Agreements. In no event shall any actual or alleged act by the City or any actual or alleged omission or failure to act by the City with respect to the Authority subject the City to monetary liability therefor. Further, nothing in this Agreement shall be construed as affecting the Developer's or the City'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 City'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 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 City or directly to the design consultant) shall be reimbursed at the time of acquisition of the Acquisition Improvements. 7-24 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 the acquisition of Acquisition Improvements. Section 2.02. Letting and Administration of Construction Contracts; Indemnification. State law requires that all Acquisition Improvements not completed prior to the formation of the Community Facilities District shall be constructed as if they were constructed under the direction and supervision, or under the authority, of the City. In order to assure compliance with those provisions, except for any contracts entered into prior to the date hereof, Developer agrees to comply with the requirements set forth in Exhibit C hereto with respect to the bidding and contracting for the construction of the Acquisition Improvements. The Developer agrees that all the contracts shall call for payment of prevailing wages as required by the Labor Code of the State of California. The Developer's indemnification obligation set forth in Section 3.01 of this Agreement shall also apply to any alleged failure to comply with the requirements of this Section, and/or applicable State laws regarding public contracting and prevailing wages. Section 2.03. Sale of Acquisition Improvements. The Developer agrees to sell to the City each Acquisition Improvement to be constructed by or on behalf of the Developer (including any rights-of-way or other easements necessary for the Acquisition Improvements, to the extent not already publicly owned), when the Acquisition Improvement is completed to the satisfaction of the City for an amount not to exceed the lesser of (i) the Available Amount from time to time or (ii) the Actual Cost of the Acquisition Improvement. Exhibit A, attached hereto and incorporated herein, contains a list of the Acquisition Improvements. Portions of an Acquisition Improvement eligible for Installment Payments prior to completion of the entire Acquisition Improvement are described as eligible, discrete and usable portions in Exhibit A (each, an "Eligible Portion"). At the time of completion of each Acquisition Improvement, or Eligible Portion thereof, the Developer shall deliver to the City Engineer a written request for acquisition, accompanied by an Actual Cost Certificate, and by executed Title Documents for the transfer of the Acquisition Improvement where necessary. In the event that the City Engineer finds that the supporting paperwork submitted by the Developer fails to demonstrate the required relationship between the subject Actual Cost and eligible work, the City Engineer shall advise the Developer that the determination of the Actual Cost (or the ineligible portion thereof) has been disallowed and shall request further documentation from the Developer. If the further documentation is still not adequate, the City Engineer may revise the Actual Cost Certificate to delete any disallowed items and the determination shall be final and conclusive. Certain soft costs for the Acquisition Improvements, such as civil engineering, may have been incurred pursuant to single contracts that include work relating also to the private portions of the Project. In those instances, the total costs under such contracts will be allocated to each Acquisition Improvement as approved by the City Engineer. Where a specific contract has been awarded for design or engineering work relating solely to an Acquisition Improvement, one hundred percent (100%) of the costs under the contract will be allocated to that Acquisition Improvement. Amounts allocated to an 7-25 Acquisition Improvement will be further allocated among the Eligible Portions of that Acquisition Improvement, if any, in the same proportion as the amount to be reimbursed for hard costs for each Eligible Portion bears to the amount to be reimbursed for hard costs for the entire Acquisition Improvement. Costs will be allocated to each Acquisition Improvement as approved by the City Engineer. The costs of certain environmental mitigation required to mitigate impacts of the public and private portions of the Project will be allocated to each Acquisition Improvement as approved by the City Engineer. Section 2.04. Conditions Precedent to Payment of Acquisition Price. Payment to the Developer or its designee of the Acquisition Price for an Acquisition Improvement from the Acquisition and Construction Fund shall in every case be conditioned first upon the determination of the City Engineer, pursuant to Section 2.03, that the Acquisition Improvement satisfies all City regulations and ordinances and is otherwise complete and ready for acceptance by the City, and shall be further conditioned upon satisfaction of the following additional conditions precedent: (a) The Developer shall have provided the City with lien releases or other similar documentation satisfactory to the City Engineer as evidence that none of the property (including any rights-of-way or other easements necessary for the operation and maintenance of the Acquisition Improvement, to the extent not already publicly owned) comprising the Acquisition Improvement 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 general property taxes, and all special taxes of the Community Facilities District, on property owned by the Developer within the Community Facilities District. Property shall be exempt from the special tax of the Community Facilities District upon conveyance to the City or the Developer shall prepay the special tax on the property so conveyed. (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 City with Title Documents needed to provide the City with Acceptable Title to the site, right-of-way, or easement upon which the subject Acquisition Improvement is situated. All such Title Documents shall be in a form acceptable to the City 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 City Engineer and the City Attorney insuring the City 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 City and the Developer. Each title insurance policy required hereunder shall be in the amount equal to the Acquisition Price. The amount paid to the Developer or its designee upon satisfaction of the foregoing conditions precedent shall be the Acquisition Price less all Installment Payments paid previously with respect to the Acquisition Improvement. Section 2.05. Payment for Eligible Portions. The Developer may submit an Actual Cost Certificate to the City Engineer with respect to any Eligible Portion. Payment 7-26 to the Developer or its designee from the Acquisition and Construction Fund of an Installment Payment with respect to such Eligible Portion shall in every case be conditioned first upon the determination of the City Engineer, pursuant to Section 2.03, that the Eligible Portion has been completed in accordance with the applicable plans and specifications and that the Eligible Portion satisfies all City regulations and ordinances and is otherwise complete and, where appropriate, is ready for acceptance by the City, and shall be further conditioned upon satisfaction of the following additional conditions precedent: (a) The Developer shall have provided the City with lien releases or other similar documentation satisfactory to the City Engineer as evidence that the property (including any rights-of-way or other easements necessary for the operation and maintenance of the Eligible Portion, to the extent not already owned by the City) comprising the Eligible Portion is not subject to any prospective mechanics lien claim respecting the Eligible Portion. (b) The Developer shall be current in the payment of all due and payable general property taxes, and all special taxes of the Community Facilities District, on property owned by the Developer within the Community Facilities District. (c) The Developer shall have provided the City with Title Documents needed to provide the City with title to the site, right-of-way, or easement upon which the subject Eligible Portion is situated. All such Title Documents shall be in a form acceptable to the City Engineer and shall be sufficient, upon completion of the Acquisition Improvement of which the Eligible Portion is a part, to convey Acceptable Title. (d) Payment and performance bonds, from a bonding company with an A.M. Best rating of at least "A-" or its equivalent, applying to plans and specifications for the Acquisition Improvement approved by the City, shall be in place to secure completion of the Acquisition Improvement of which the Eligible Portion is a part. Section 2.06. Disbursement Request Form. Upon a determination by the City Engineer to pay the Acquisition Price of an Acquisition Improvement pursuant to Section 2.04 or to pay an Installment Payment for an Eligible Portion pursuant to Section 2.05, the City Engineer shall cause a Disbursement Request Form substantially in the form attached hereto as Exhibit B-1 to be submitted to the Authority and Authority Trustee, and the Authority or Authority Trustee shall make payment directly to the Developer or its designee of the amount requested from the applicable Acquisition and Construction Fund. The City and the Developer acknowledge and agree that the Authority or Authority Trustee shall make payment strictly in accordance with the Disbursement Request Form and shall not be required to determine whether or not the Acquisition Improvement or Eligible Portion has been completed or what the Actual Costs may be with respect to the Acquisition Improvement or Eligible Portion. The Authority or Authority Trustee shall be entitled to rely on the executed Disbursement Request Form on its face without any further duty of investigation. 7-27 In the event that the Actual Cost of an Acquisition Improvement or the Installment Payment for an Eligible Portion is in excess of the Available Amount, the Authority or Authority Trustee shall withdraw all funds remaining in the Acquisition and Construction Fund and shall transfer those amounts to the Developer or its designee. The unpaid portion of the Actual Cost shall be paid from funds that may subsequently be deposited in the Acquisition and Construction Fund from a subsequent issuance of Bonds, from prepayments of Special Taxes to be used for financing Acquisition Improvements, or from Special Tax revenues, if any of those occurs. Section 2.07. Limitation on Obligations. In no event shall the City be required to pay the Developer or its designee more than the amounts held in the Acquisition and Construction Fund. Section 2.08. Under -grounding of Utilities. In addition to financing the acquisition of the Acquisition Improvements, proceeds of bonds for the Community Facilities District are expected to finance the undergrounding of certain utilities owned or to be owned by Southern California Edison. Notwithstanding anything to the contrary herein, the City shall be entitled to directly request payment to the City (or to reimburse the Developer) pursuant to a Request to the Authority Trustee to (i) reimburse amounts the City has paid Southern California Edison or a contractor for the amount in such request, or (ii) to pay directly to Southern California Edison or a contractor for the amount in such request. To the extent authorized by law, the City agrees to first reimburse amounts previously deposited by the Developer pursuant to the Deposit Agreement between the City of Newport Beach and TSG — Parcel 1, LLC, dated January 5, 2015, for the costs of the undergrounding of utilities, including design and planning, from proceeds of bonds or the Special Tax pursuant to this Section. ARTICLE III MISCELLANEOUS Section 3.01. Indemnification and Hold Harmless. The Developer hereby assumes the defense of, and indemnifies and saves harmless the City, the Authority and their respective officers, directors, employees and agents, including the Authority Trustee, from and against all actions, damages, claims, losses or expenses of every type and description to which they may be subjected or put, by reason of, or resulting from or alleged to have resulted from the acts or omissions of the Developer or its agents and employees arising out of any contract for the design, engineering and construction of the Acquisition Improvements entered into by the Developer 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 Authority financing (provided that the Developer shall have been furnished a copy of the official statement and shall not have objected thereto); and provided, further, that nothing in this Section 3.01 shall limit in any manner the City's rights against any of the Developer's architects, engineers, contractors or other 7-28 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 City, the Authority or any of their respective officers, directors, employees or agents, for any wrongful acts or omissions to act of the Authority or its officers, employees, agents or any consultants or contractors, including the Authority Trustee, and for any wrongful acts, willful misconduct, active negligence or omissions to act of the City, or its officers, employees, agents or any consultants or contractors, including the Authority Trustee. Section 3.02. Audit. The City 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 pursuant to this Agreement) in constructing the Acquisition Improvements. Section 3.03. Cooperation. The City and the Developer agree to cooperate with respect to the completion of the financing of the Acquisition Improvements by the Authority through the levy of the Community Facilities District Special Taxes and issuance of Bonds. The City 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 the consent, approval or acceptance not be unreasonably withheld or delayed, unless the provision expressly incorporates a different standard. Section 3.05. Third Party Beneficiaries. The Authority and its officers, employees, agents or any consultants or contractors are expressly deemed third party beneficiaries of this Agreement with respect to the provisions of Section 3.01. It is expressly agreed that, except for the Authority with respect to the provisions of Section 3.01, there are no third party beneficiaries of this Agreement, including without limitation any owners of bonds, any of the City's or the Developer's contractors for the Acquisition Improvements and any of the City'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 City from any condition of development or requirement imposed by any other agreement between the City and the Developer, and, in the event of a conflicting provision, the other agreement shall prevail unless the conflicting provision is specifically waived or modified in writing by the City and the Developer. Section 3.07. Notices. All invoices for payment, reports, other communication and notices relating to this Agreement shall be mailed to: 7-29 If to the City: City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 Attention: City Manager If to the Authority: California Statewide Communities Development Authority 1100 K Street, Suite 101 Sacramento, CA 95814 Attention: Chair If to the Developer: Uptown Newport Jamboree, LLC c/o Shopoff Realty Investments, L.P 2 Park Plaza, Suite 700 Irvine, CA 92614 Attention: William A. Shopoff TSG — Parcel 1, LLC c/o Shopoff Realty Investments, L.P 2 Park Plaza, Suite 700 Irvine, CA 92614 Attention: William A. Shopoff With a copy to: Jackson Tidus 2030 Main Street 12th Floor Irvine, CA 92614 Attention: Gregory P. Powers, Esq. Either party may change its address by giving notice in writing to the other party. Section 3.08. Severability. If any part of this Agreement is held to be illegal or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible. Section 3.09. Governing Law. This Agreement and any dispute arising hereunder shall be governed by and interpreted in accordance with the laws of the State of California. Section 3.10. Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a 7-30 waiver of such party's right to insist and demand strict compliance by the other party with the terms of this Agreement. Section 3.11. Singular and Plural; Gender. As used herein, the singular of any word includes the plural, and terms in the masculine gender shall include the feminine. Section 3.12. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original. Section 3.13. Successors and Assigns. This Agreement is binding upon the heirs, assigns and successors -in -interest of the parties hereto. The Developer may not assign its rights or obligations hereunder, except to successors -in -interest to the property within the Community Facilities District, without the prior written consent of the City. Section 3.14. Remedies in General. It is acknowledged by the parties that the City 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 City. Section 3.15. Non -Liability of Authority. The Authority shall not be liable for any costs, expenses, losses, damages, claims or actions, of any conceivable kind on any conceivable theory, under or by reason of or in connection with this Agreement, except only to the extent amounts are received for the payment thereof from the Special Tax. In general, each of the parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Agreement, except that the City 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 Section 3.14. 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. 7-31 IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year written above. ATTEST: 0 Leilani I. Brown City Clerk APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE 0 Aaron C. Harp City Attorney CITY OF NEWPORT BEACH M [Authorized Officer] UPTOWN NEWPORT JAMBOREE, LLC, a Delaware limited partnership By: _ Name Title TSG — PARCEL 1, LLC, a Delaware limited liability company By: _ Name Title CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY go Authorized Signatory 7-32 EXHIBIT A TO THE ACQUISITION AGREEMENT DESCRIPTION OF ACQUISITION IMPROVEMENTS, ELIGIBLE PORTIONS ACQUISITION IMPROVEMENTS Park improvements, including playground infrastructure, irrigation, landscaping, utilities, drainage and grading. 7-33 EXHIBIT B TO THE ACQUISITION AGREEMENT DISBURSEMENT REQUEST FORM (Acquisition Improvement or Eligible Portion) To: [Authority Trustee] Attention: Fax: Phone: Re: CSCDA Community Facilities District No. , Improvement Area m The undersigned, a duly authorized officer of the CITY OF NEWPORT BEACH hereby requests a withdrawal from the Uptown Newport Project Community Facilities District Acquisition and Construction Fund, as follows: Request Date: Name of Developer: Withdrawal Amount: Acquisition Improvements: Payment Instructions: [Insert Date of Request] [Insert Acquisition Price/Installment Payment] [Insert Description of Acquisition Improvement(s)/Eligible Portion(s) from Exhibit A] [Insert Wire Instructions or Payment Address for Developer or Developer's designee as provided by the Developer] The undersigned hereby certifies as follows: The Withdrawal is being made in accordance with a permitted use of the monies pursuant to the Acquisition Agreement and the Withdrawal is not being made for the purpose of reinvestment. None of the items for which payment is requested have been reimbursed previously from the Acquisition and Construction Fund. If the Withdrawal Amount is greater than the funds held in the Acquisition and Construction Fund, the Authority Trustee is authorized to pay the amount of such funds and to pay remaining amount(s) as funds are subsequently deposited in the Acquisition and Construction Fund, should that occur. [For Park Improvement Disbursements:][The amounts being disbursed pursuant to this request are being used to finance or refinance certain public infrastructure and facilities (the "Improvements"). The City will own, and for the entire useful life of such 7-34 Improvements reasonably expects to own, all of such Improvements. To the extent any of such Improvements are sold to an entity that is not a state or local government agency, the City will seek the advice and approval of bond counsel to the Authority prior to any such sale. The City will not allow any of such Improvements to be used (for example, by lease or other contract) in the trade or business of any nongovernmental persons (other than in their roles as members of the general public). All of such Improvements will be used in the performance of essential governmental functions of the City or another state or local government agency. The average expected useful life of such Improvements is at least 20 years. The representations and covenants contained in this paragraph are intended to support the conclusion that the interest paid on the bonds issued to finance the Improvements is excluded from gross income for federal income tax purposes under Section 103 of the Internal Revenue Code of 1986 (the "Code" ).] CITY OF NEWPORT BEACH 0 Title: 7-35 EXHIBIT C TO THE ACQUISITION AGREEMENT BIDDING, CONTRACTING AND CONSTRUCTION REQUIREMENTS FOR ACQUISITION IMPROVEMENTS With respect to construction contracts awarded after approval of the Agreement, bids for construction shall be solicited from at least three (3) qualified contractors, provided at least three (3) qualified contractors are reasonably available. The Developer may also directly solicit bids. The bid package may consist of preliminary plans and specifications. The bidding response time shall be not less than ten (10) working days. An authorized representative of the City shall be provided a copy of the tabulation of bid results upon request. Contract(s) for the construction of the public Acquisition Improvements shall be awarded to the qualified contractor(s) submitting the lowest responsible bid(s), as determined by the Developer. The contractor to whom a contract is awarded shall be required to pay not less than the prevailing rates of wages pursuant to Labor Code Sections 1770, 1773 and 1773.1. A current copy of applicable wage rates shall be on file in the Office of the City Clerk, as required by Labor Code Section 1773.2. The Developer shall provide the City with certified payrolls. 7-36 EXHIBIT D PROJECT DESCRIPTION AND BOND PARAMETERS Project Description A. Specific Project(s) for which the Debt is Being Incurred • Park Improvements • 66 -kV Undergrounding B. Not to exceed Authorized Par Amount • $82800,000 C. Not to exceed Term of the Bonds, which will be no greater than the useful life of the project • 30 years from date of issuance D. Not to exceed true interest cost • 5.75% E. Not to exceed maximum annual debt service • $900,000 F. Call provisions, including specifically identifying any deviation from a par call • Optional Call in 10 —Years at 100% of Par • Extraordinary redemption from prepayment of special taxes with not to exceed 3% premium through 10 years and then par call thereafter. G. Not to exceed underwriter's discount • 1.50% of Par Amount inclusive of underwriter's counsel fees H. List of Consultants Hired for the Issuance • Orrick — Bond Counsel & Disclosure Counsel • RBC Capital Markets, LLC - Underwriter • David Taussig & Associates, Inc. - Special Tax Consultant 7-37