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HomeMy WebLinkAbout25H - JOINT COMM. FACILITIES AGMT REQUEST FOR COUNCIL ACTION ~ ~ CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: APRIL 17, 2006 TITLE: APPROVED D As Recommended D As Amended D Ordinance on 1" Reading D Ordinance on 2" Reading D Implementing Resolution D Set Public Hearing For AGREEMENT BETWEEN THE CITIES OF SANTA ANA AND TUSTIN REGARDING JOINT COMMUNITY FACILITIES EMENT / CONTINUED TO FILE NUMBER RECOMMENDED ACTION Direct the City Attorney to prepare and authorize the City Manager and the Clerk of the Council to execute an agreement between the Cities of Santa Ana and Tustin regarding a Joint Community Facilities Agreement authorizing the use of bond proceeds to fund intersection improvements, DISCUSSION On February 22, 2001 the Cities of Santa Ana and Tustin entered into an Amendment to Joint Exercises of Power Agreement regarding the Tustin- Santa Ana Transportation System Improvement Authority. Pursuant to the amendment, Tustin is required to pay Santa Ana its joint share of two intersection improvements - at Dyer and Grand and at Edinger and Grand. The Tustin City Council has initiated proceedings to establish Community Facilities District No. 06 -1. This Facilities District will authorize the levy of special taxes upon the land within the former Marine Base site now known as Tustin Legacy. The City of Tustin is considering the use of bond proceeds to fund the two intersection improvements in Santa Ana. The City of Santa Ana would be responsible for designing the project, acquiring the right-of-way and constructing the improvements, For Santa Ana to receive the bonds proceeds, both cities must adopt a Joint Community Facilities Agreement. The bond proceeds are simply another revenue source to pay for Tustin's obligation of the intersection improvements. 25H-1 Joint Community Facilities Agreement April 17, 2006 Page 2 of 2 ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT Funds received from the bond proceeds will be deposited in each of the project accounts. APPROVED AS TO FUNDS AND ACCOUNTS: ~ ~r'-'- James G. oss Executive Director Public Works Agency ~ ti.u..c4- -J. Francisco Gutierrez ~~xecutive Director Finance & Mgmt. Services Agen~ o K:\Sr. Management\rfca Joint Agmt Tustin-SA.doc 25H-2 JOINT COMMUNITY FACILITIES AGREEMENT TIDS JOINT COMMUNITY FACILITIES AGREEMENT (this "Facilities Agreement"), dated as of 1,2006, is by and between the CITY OF TUSTIN, a general law city organized and existing under the laws of the State of California ("Tustin"), and the CITY OF SANTA ANA, a charter city organized and existing under the laws of the State of California and its charter ("Santa Ana"). WIT N E SSE T H: WHEREAS, the owner of certain property within Tustin has submitted to the City Council of Tustin (the "Tustin City Council") a petition to institute proceedings under the Mello- Roos Community Facilities Act of 1982 (the "Act") to establish a community facilities district; WHEREAS, pursuant to the Act and said petition, the Tustin City Council has instituted proceedings to establish City of Tustin Community Facilities District No. 06-1 (Tustin LegacylLennar Homes) (the "Community Facilities District"), to authorize the levy of special taxes (the "Special Taxes") upon the land within the Community Facilities District and to issue bonds (the "Bonds") secured by the Special Taxes, the proceeds of which are to be used to fmance certain public facilities; WHEREAS, the facilities proposed to be financed by the Community Facilities District include certain facilities to be owned and operated by Tustin (the "Tustin Facilities") and certain facilities to be owned and operated by Santa Ana (the "Santa Ana Facilities"); . WHEREAS, Section 53316.2 of the Act provides that a community facilities district may fmance facilities to be owned or operated by an entity other than the agency that created the community facilities district only pursuant to a joint community facilities agreement or a joint exercise of powers agreement adopted pursuant to said Section; WHEREAS, Section 53316.2 of the Act further provides that at any time prior to the adoption of the resolution of formation creating a community facilities district, the legislative bodies of two or more local agencies may enter into a joint community facilities agreement pursuant to said Section and Sections 53316.4 and 53316.6 of the Act to exercise any power authorized by the Act with respect to the community facilities district being created if the legislative body of each entity adopts a resolution declaring that such a joint agreement would be beneficial to the residents of that entity, and by its authorization hereof, the legislative body of each of Tustin and Santa Ana has so declared; WHEREAS, Tustin and Santa Ana desire to enter into this Facilities Agreement in accordance with Sections 53316.2, 53316.4 and 53316.6 of the Act in order to provide for the fmancing of the Santa Ana Facilities through the issuance of Bonds by the Community Facilities District; WHEREAS, Santa Ana and Tustin have entered into an Amendment to Joint Exercise of Powers Agreement between the City of Santa Ana and the City of Tustin Regarding the Tustin- Santa Ana Transportation System Improvement Authority, dated as of February 22, 2001 (said OOCSLAI:517226.2 42081-3 GHI 1 25H-3 Amendment, as originally executed or as it may from time to time be amended is referred to herein as the "Amendment"); WHEREAS, pursuant to the Amendment, Tustin is required to pay to Santa Ana Tustin's fair share obligation of certain of the costs of the Santa Ana Facilities, as and when set forth in the Amendment; and WHEREAS, Tustin and Santa Ana desire to provide a credit against Tustin's obligation to pay such costs of the Santa Ana Facilities pursuant to the Amendment, if and to the extent that Bond proceeds are made available to Santa Ana to pay such costs; NOW, THEREFORE, for and in consideration of the mutual promises and covenants herein contained, the parties hereto agree as follows: Section 1. The Commnnity Facilities District; Issuance of Bonds. The Tustin City Council shall, in its sole discretion, determine whether and when it may be appropriate to establish the Community Facilities District. In no event shall Santa Ana have any right to compel the Tustin City Council to establish the Community Facilities District. Tustin shall engage such consultants as it may deem necessary or appropriate to facilitate the establishment of the Community Facilities District. Santa Ana shall have no responsibility for any costs incurred by Tustin in connection with the establishment of the Community Facilities District. It is anticipated that the Community Facilities District will issue Bonds to fmance the acquisition, construction and installation of the Tustin Facilities and the Santa Ana Facilities. If the Community Facilities District is established, the Tustin City Council, acting as the legislative body of the Con:uilunity Facilities District, shall, in its sole discretion, determine whether, when, under what conditions and to what extent Bonds shall be issued to [mance the acquisition, construction and installation of the Tustin Facilities and the Santa Ana Facilities, or any combination thereof. In no event shall Santa Ana have any right to compel the Community Facilities District to issue Bonds to fmance the acquisition, construction and installation of Santa Ana Facilities or to disburse Bond proceeds to pay the costs of the acquisition, construction and installation of Santa Ana Facilities. Section 2. Santa Ana Facilities. The Santa Ana Facilities, including any real or tangible property which is to be purchased, constructed, expanded or rehabilitated, are described in Exhibit A attached hereto. It is anticipated that the Community Facilities District will issue Bonds, a portion of the proceeds of which are to be available to finance the acquisition, construction and instaIlation of the Santa Ana Facilities. If the Community Facilities District issues Bonds for such purpose, Tustin shall, or shall cause the Community Facilities District to, notifY Santa Ana of the amount of such proceeds available for such purpose within 15 days of such proceeds becoming so available. Santa Ana shall not apply any of the proceeds of the Bonds to the purchase of any Santa Ana Facilities unless such Santa Ana Facilities were constructed as if they had been constructed under the direction and supervision, or under the authority of, Santa Ana. DOCSLA1:517226.2 42081-8 GHl 2 25H-4 Section 3. Disbursements. Bond proceeds available for the acquisition, construction and installation of the Santa Ana Facilities shall be deposited in a special account (the "Santa Ana Facilities Account") to be established under the Indenture pursuant to which the Bonds are issued. Moneys on deposit in the Santa Ana Facilities Account shall be invested and disbursed at the direction of the Community Facilities District. To the extent that Bond proceeds are available therefor, the Community Facilities District shall cause disbursements to be made from the Santa Ana Facilities Account from time to time to pay the costs of the acquisition, construction and installation of the Santa Ana Facilities upon submission ofa written request of Santa Ana stating (a) the name and address of the person to whom payment is to be made, (b) the amount to be paid, (c) that an obligation in such amount has been incurred by Santa Ana, (d) the purpose for which the obligation to be paid was incurred, (e) that each item of the obligation to be paid constitutes a cost of the Santa Ana Facilities, (f) that the obligation to be paid has not been the subject of a prior Santa Ana request for disbursement from the Santa Ana Facilities Account, and (g) if the amount requested to be disbursed is to be applied to the purchase of any Santa Ana Facilities, that such Santa Ana Facilities were constructed as if they had been constructed under the direction and supervision, or under the authority of, Santa Ana. The Community Facilities District shall process in a timely manner written requests for disbursements received from Santa Ana that conform to the requirements hereof. Section 4, Credit for Tustin's Oblil!ation for Improvements, Upon the deposit of proceeds of the Bonds in the Santa Ana Account, Tustin shall receive a credit against the payment of its fair share obligation of the Total Costs (as defmed in the Amendment) for each Improvement (as defmed in the Amendment) in an amount equal to the amount so deposited, and, upon such deposit, Tustin shall be deemed to have paid, in accordance with the Amendment, such fair share obligation in an amount equal to the amount so deposited. Section 5. Construction. Ownership and Maintenance of Tustin Facilities and Sauta Ana Facilities. Tustin shall be solely responsible for the acquisition, construction and installation of the Tustin Facilities, and Santa Ana shall have no responsibility therefor or liability with respect thereto. The Tustin Facilities shall be and remain the sole and separate property of Tustin and shall be operated, maintained and utilized by Tustin. Santa Ana shall not have any ownership interest in the Tustin Facilities, and Santa Ana shall have no responsibility for the operation, maintenance or utilization of the Tustin Facilities or any liability with respect thereto, Santa Ana shall be solely responsible for the acquisition, construction and installation of the Santa Ana Facilities, and Tustin shall have no responsibility therefor or liability with respect thereto. The Santa Ana Facilities shall be and remain the sole and separate property of Santa Ana and shall be operated, maintained and utilized by Santa Ana. Tustin shall not have any ownership interest in the Santa Ana Facilities, and Tustin shall have no responsibility for the operation, maintenance or utilization of the Santa Ana Facilities or any liability with respect thereto. Section 6, Tax Matters, In connection with the issuance of any Bonds, a portion of the proceeds of which are to be made available to fmance the acquisition, construction and DOCSLAI :517226.2 42081-8 GHI 3 25H-5 installation of Santa Ana Facilities, Santa Ana agrees to execute and deliver such certifications and agreements as may be reasonably required in order for bond counsel to conclude that interest on such Bonds will be excluded from gross income under Section 103 of the Internal Revenue Code ofl986. Section 7. Indemnification. Tustin agrees to protect, indemnifY, defend and hold Santa Ana, and its officers, employees and agents, and each of them, harmless from and against any and all claims, losses, expenses, suits actions, decrees, judgments, awards, attorneys' fees and court costs which Santa Ana, or its officers, employees and agents, or any combination thereof, may suffer or which may be sought against or recovered or obtained from Santa Ana, or its officers, employees or agents, or any combination thereof, as a result of or by reason of or arising out of or in consequence of the acquisition, construction, installation, operation, maintenance or utilization of the Tustin Facilities. If Tustin fails to do so, Santa Ana shall have the right, but not the obligation; to defend the same and charge all of the direct and incidental costs of such defense, including any attorneys' fees or court costs, to and recover the same from Tustin. No indemnification is required to be paid by Tustin for any claim, loss or expense arising from the willful misconduct or negligence of Santa Ana, or its officers, employees or agents. Santa Ana agrees to protect, indemnifY, defend and hold Tustin and the Community Facilities District, and their respective officers, employees and agents, and each of them, harmless from and against any and all claims, losses, expenses, suits actions, decrees, judgments, awards, attorneys' fees and court costs which Tustin or the Community Facilities District, or their respective officers, employees and agents, or any combination thereof, may suffer or which may be sought against or recovered or obtained from Tustin or the Community Facilities District, or their respective:officers, employees or agents, or any combination thereof, as a result of or by reason of or arising out of or in consequence of the acquisition, construction, installation, operation, maintenance or utilization of the Santa Ana Facilities. If Santa Ana fails to do so, Tustin and the Community Facilities District shall have the right, but not the obligation, to defend the same and charge all of the direct and incidental costs of such defense, including any attorneys' fees or court costs, to and recover the same from Santa Ana. No indemnification is required to be paid by Santa Ana for any claim, loss or expense arising from the willful misconduct or negligence of Tustin or the Community Facilities District, or their respective officers, employees or agents. Section 8. Nature of A2reemeut: Allocation of Special Taxes. This Facilities Agreement shall constitute a joint community facilities agreement entered into pursuant to Sections 53316.2, 53316,4 and 53316.6 of the Act. The entire amount of the proceeds of the Special Taxes shall be allocated and distributed to Tustin. Section 9. Third-Party Beneficiarv. If and when established, the Community Facilities District shall be a third-party beneficiary of this Facilities Agreement. Section 10. Limitation of Riehts to Parties. Nothing in this Facilities Agreement expressed or implied is intended or shall be construed to give to any person other than Tustin, Santa Ana and the Community Facilities District, any legal or equitable right, remedy or claim DOCSLAI:517226.2 4208].8 GHl 4 25H-6 under or in respect of this Facilities Agreement or any covenant, condition or provision herein contained; and all such covenants, conditions and provisions are and shall be held to be for the sole and exclusive benefit of Tustin, Santa Ana and the and the Community Facilities District. Section 11. Notices. All written notices to be given hereunder shall be given to the party entitled thereto at its address set forth below, or at such other address as such party may provide to the other parties in writing from time to time, namely: If to Tustin: City of Tustin 300 Centennial Way Santa Ana, California 92680 Attention: Finance Director lfto Santa Ana: City of Santa Ana 20 Civic Center Plaza Post Office Box 1988 ' Santa Ana, California 92707 Attention: Each such notice, statement, demand, consent, approval, authorization, offer, designation, request or other communication hereunder shall be deemed delivered to the party to whom it is addressed (a) if personally served or delivered, upon delivery, (b) if given by electronic communication, whether by telex, telegram or telecopier, upon the sender's receipt of an appropriate answerback or other written acknowledgment, (c) if given by registered or certified mail, return recei)2t requested, deposited with the United States mail postage prepaid, 72 hours after such notice is deposited with the United States mail, (d) if given by overnight courier, with courier charges prepaid, 24 hours after delivery to said overnight courier, or (e) if given by any other means, upon delivery at the address specified in this Section. Section 12. California Law. This Facilities Agreement shall be governed and construed in accordance with the laws of the State of California. Section 13. Severabilitv. If any part of this Facilities Agreement is held to be illegal or unenforceable by a court of competent jurisdiction, the remainder of this Facilities Agreement shall be given effect to the fullest extent reasonably possible. Section 14. Successors. This Facilities Agreement shall be binding upon and inure to the benefit of the successors of the parties hereto. Section 15. Counterparts. This Facilities Agreement may be executed in counterparts, each of which shall be deemed an original and all of which shall constitute but one and the same instrument. DOCSLA t :517226.2 42QSI-SGHl 5 25H-7 '. IN WITNESS WHEREOF, the parties hereto have executed this Facilities Agreement as of the date first written above. CITY OF TUSTIN By: CiTY OF SANTA ANA By: DOCSLAl:517226.2 42081-80Hl 6 25H-8 EXHmIT A DESCRIPTION OF SANTA ANA FACILITIES The types of facilities to be owned and operated by Santa Ana and fmanced by the Conununity Facilities District are street improvements at the intersection of Grand and Dyer and street improvements at the intersection of Grand and Edinger, as described in the Amendment. DOCSLAl:Sl7226.2 42081-8 GHI A-I 25H-9 - 25H-10