HomeMy WebLinkAboutResolution No. 2008-401 EXHIBIT A DESCRII'TION OF AUTHORIZED FACILITIES The facilities listed in Items 1-15, inclusive, shall have the first priority for financing with proceeds of any Bonds secured by the Special Taxes, if later authorized and/or proceeds of the Special Taxes, and the facilities listed in Item 16 shall, unless otherwise agreed to by the County and the Petitioner, have second priority and shall be eligible for financing only upon completion of all financing for all facilities listed in Items 1-15 from such proceeds, if any, of. later authorized Bonds secured by the Special Taxes and/or the Special Taxes as may remain available for such purpose.Item No. Description of Item 1. Omao i6-inch Transmission Main 2. Piwai Well Nos. 2 & 3 and 0.1 MG Reservoir 3. Paanau 0.5 MG Reservoir 4. Mariuhonuhonu Reservoir 5. Roundabout 6. Western Bypass Road 7. Major Project Road -Entry to Club Drive 8. Major Project Road -Club Drive to Lawai Connector Road.9. Lawai Connector Road 10. Lawai Road Widening 11. Shoreline Recreation Improvements, including $360,000 contribution to County constructed Shoreline Recreational Improvements 12. Northern Leg of Western Bypass Road, including $278,76() contribution to County constructed portion of the Northern Leg 13. Major Project Road -Lawai Connector Road to "A" Entry 14. Life Safety -Sirens A-1
EXHIBIT C RATE AND METHOD OF APPORTIONMENT FOR COUNTY OF KAUAI COMMUNITY FACILITIES DISTRICT N0.2008-1 KUKUI`ULA DEVELOPMENT PROJECT)A Special Tax shall be levied on all Tax Map Key Parcels in the County of K;aua`i Community Facilities District No. 2008-1 (Kukui`ula Development Project) ("CFD No. 2008-1") and collected each Fiscal Year commencing in Fiscal Year 2009-2010, in an amount determined by the Council through the application of the appropriate Special Tax for "Improved Lot Property,"Interim Builder Property," "Other Taxable Property," "Taxable Public Property," and Undeveloped Property" as described below. All of the real property in CFD No. 2008-1, unless exempted by law or by the provisions hereof, shall be taxed for the purposes, to the extent and in the manner herein provided. All capitalized terms are defined below in Section A.A. DEFINITIONS The terms hereinafter-set forth have the following meanings:Acre or Acreage" means the land area of a TMK Parcel as shown o:n a Tax Map, or if the land area is not shown on a Tax Map, the land area shown on th.e applicable Final Map, parcel map, condominium plan, or other map recorded in the Bureau of Conveyances of the State.Acquisition Agreement" means the Acquisition and Funding Agreement by and between County of Kauai relating to County of Kauai Community Facilities District No. 2008-1 (if and when formed) and Kukui`ula Development Company(Hawaii), LLC,as modified, amended and/or supplemented from time to time in accordance with its terms, or any applicable successor to or restatement of such agreement.ArchaeologicaUBiological Property" means, for each Fiscal Year, any area, excluding Golf Course Property, identified as an archaeological preserve or a biological preserve on the Kukui'ula Land Use Plan attached herein as Exhibit A, as amended from time-to time as indicated in an Updated Report) or modified pursuant to a Final Map.Assigned Special Tax" means the Special. Tax for Improved Lot Property or Interim Builder Property, as determined in accordance with Section C.l.b. below.Backup Special Tax" means the Special Tax applicable to each TMK Parcel of Improved Lot Property or Interim Builder Property, as determined in accordance with Section C.l.d. below.Bonds" means any bonds or other debt (as defined in Section 26-1.1 of the Ordinance),whether in one or more series, issued under the Ordinance.County of Kaua `i July 2l, 2008 CFD No. 2008-1(Kukui `ula Project) page G1
Builder" means an entity (other than the Developer or a Related Party), that is building or intends to build and sell a home on a TMK Parcel, and whose primary business includes building homes for resale, including any land bank entity that :is assembling and holding lots on behalf of a home builder, as determined by the CFD Administrator.CFD Administrator" means the Director of Finance of the County, o:r designee thereof including an outside consultant), responsible for determining the Special Tax Requirement and providing for the levy and collection of the Special Taxes.CFD Facilities" means the special improvements described in t:he Ordinance of Formation and/or the Acquisition Agreement.CFD No. 2008-1" means the County of Kauai Community Facilities :District No. 2008-1 (Kukui`ula Development Project).Council" means the Council of the County of Kauai.County" means the County of Kauai.Developer" means Kukui`ula Development Company (Hawaii), LLC, or their successors and assigns.Final Map" means a condominium map, subdivision map, parcel map, lot line adjustment, or functionally equivalent .map or instrument that creates ]legal lots, and that has been recorded in the Bureau of Conveyances of the State.Fiscal Year" means the period starting July 1 and ending on the following June 30.Golf Course Property" means, for each Fiscal Year, .all TMK Parcels that have been identified as a golf course on a Final Map or recorded easement, or that; are actually being used for golf course purposes including: fairways, greens, driving ranges, parking facilities, cart barns, garages, tennis facilities, banquet facilities, pro shop, restaurants,locker rooms, meeting rooms, and any other golf course purpose use as determined by the CFD Administrator, as of March 1 of the prior Fiscal Year.Improved Lot Property" means, for each Fiscal Year, all TMK Parcels of Taxable Property intended for a residential use, excluding Interim Builder Property, Other Taxable Property, and Taxable Public Property, that are located within a Final Map and for which escrow has closed from the Developer, Related Party, or Builder to an entity other than a Related Party or a Builder after January 1, 2006 and prior to March 1 of the previous Fiscal Year.Improved Lot Property Value" means the land value of a TMK Marcel of Improved Lot Property, including any improvements to the land but excluding any portion of the value attributable to buildings, as determined by the CFD Administrator based on the purchase and sale agreement, escrow statement, Updated Report, or• other information provided by the seller or Developer, or information otherwise available to the CFD Administrator. The Improved Lot Property Value shall be fixed at the time a TMK County of Kaua `i July 21, 2008 CFD No. 2008-I (Kukui`ula Project) page C-2
Parcel is first classified as Improved Lot Property and-shall not be increased or decreased thereafter. In the event that there is conflicting land value information from the seller,Developer, or Builder or no land value information is available, or otherwise at the discretion of the CFD Administrator, the CFD Administrator may direct the preparation of a Short Form Appraisal to determine the land value. To the extent that a Short Form Appraisal is prepared for a particular TMK Parcel, the land value identiiE-red on such Short Form Appraisal shall be used as the Improved Lot Property Value.Incidental Expenses" means the actual or reasonably estimated costs related to the administration of CFD No. 2008-1 as set forth in the Ordinance of Formation including,but not limited to: the costs of computing the Special Taxes and preparing the annual Special Tax collection schedules (whether by the County or designee thereof or both); the costs of collecting the Special Taxes (whether by the County or designee thereof or both);the costs of remitting the Special Taxes to the Trustee; the costs of the 'Trustee (including its legal counsel) in the discharge of the duties required of it under the Indenture; the costs to the County, CFD No. 2008-1 or any designee thereof of complying with arbitrage rebate requirements; the costs to the County, CFD No. 2008-1 or any designee thereof of complying with disclosure requirements of the County, CFD No. 2008-1 or obligated persons associated with applicable federal and state securities laws and the Ordinance;the costs of any Short Form Appraisals required to determine Improved Lot Property Value; the costs associated with preparing Special Tax disclosure statements and responding to public inquiries regarding the Special Taxes; the costs o,f the County, CFD No. 2008-1 or any designee thereof related to an appeal of the Special Tax; the costs associated with the release of funds from an escrow account; and the County's annual administration fees and third party expenses. Incidental Expenses shall also include amounts estimated by the CFD Administrator or advanced by the County or CFD No.2008-1 for any other administrative purposes of CFD No. 2008-1, including attorney's fees and other costs related to commencing and pursuing to completion any foreclosure of delinquent Special Taxes.Indenture" means the indenture, trust agreement, fiscal agent agreement, ordinance,resolution or other instrument pursuant to which Bonds are issued, as modified; amended and/or supplemented from time to time, and any instrument replacing or supplementing the same.Interim Builder Property" means, for each Fiscal Year, all TMK Parcels of Taxable Property that are owned by the Developer, Related Party, or Builder, excluding Improved Lot Property, Other Taxable Property, and Taxable Public Property, that (i) are located within a Final Map and (ii) for which a building permit for construction of a new residential structure was issued after January 1, 2006 and prior to March 1 of the previous Fiscal Year.Interim Builder Property Value" means the land value of a TMK Parcel of Interim Builder Property, including any improvements to the land but excluding any portion of the value attributable to buildings, as determined by the purchase and sale agreement,escrow statement, Updated Report, or other information provided by the seller or Developer, or information otherwise available to the CFD Administrator. The Interim Builder Property Value shall be fixed at the time a TMK Parcel is first classified as County of Kaua `i July 21, 2008 CFD No. 2008-1(Kukui`ula Project) Page C-3
Interim Builder Property and shall not be increased or decreased thereafter until such TMK Parcel is classified as Improved Lot Property. Additionally, if .a TMK Parcel of Interim Builder Property is further subdivided, the Interim Builder Property Value will be allocated based on the Acreage of all expected lots.Land Use Class" means any of the classes listed in Table 1 below.Maximum Special Tax" means the maximum Special Tax, determined in accordance with Section C below, that can be levied in any Fiscal Year on any TMK Parcel.Non-Profit Property" means, for each Fiscal Year, all TMK Parcels, excluding Archaeological/Biological Property and Golf Course Property, owned by a charitable organization or other organization that is exempt from federal income tax under Sections 501(c)(3) or 501(c)(4) of the Internal Revenue Code, as of January 1 of the previous Fiscal Year. In order to ensure that a TMK Parcel is correctly classifieds as an Non-Profit Property, the owner of such property shall notify the CFD Administrator of the ownership of such property and provide documentation that substantiates its 501(c)(3) or 501(c)(4)status.Non-Residential Property" means, for each Fiscal Year, all TMK :Parcels, excluding Archaeological/Biological Property, Golf Course Property, Non-Profit Property, Property Owner Association Property, and Public Property, for which a building permit permitting the construction of one or more non-residential buildings or facilities was issued after January 1, 2006 and prior to March 1 of the previous Fiscal Year.Ordinance" means Ordinance No. 837, establishing Chapter.26 to the Kauai Code 1987 relating to special improvement financing by Community Facilities Districts, as amended.Ordinance of Formation" means the ordinance of formation for CFD No. 2008-1 adopted by the Council pursuant to Section 26-2.12 of the Ordinance.Other Taxable Property" means all TMK Parcels of Archaeological/Biological Property, Golf Course Property, Non-Profit Property, Non-Residential Property, and Property Owner Association Property that are not exempt pursuant to Section E below.Outstanding Bonds" means all Bonds which are deemed to be outstanding under the Indenture.Partial Prepayment Amount" means the amount required to prepay a portion of the Special Tax obligation for a TMK Parcel as described in Section I.Prepayment Amount" means the amount required to prepay the Special Tax obligation in full for a TMK Parcel as described in Section H.Property Owner Association Property" means, for each Fiscal Year any property within the boundaries of CFD No. 2008-1, excluding ArchaeologicaUBiological Property and Golf Course Property, that was owned by a property owner association, including County of Kaua `i July 21, 2008 CFD No. 2008-1 (Kukui `ula Project) Page C-4
any master or sub-association, as of January 1 of the previous Fiscal Year.Proportionately" means for Improved Lot Property that the ratio of the actual Special Tax levy to the Assigned Special Tax is equal for all TMK Parcels of Improved Lot Property. For Interim Builder Property, "Proportionately" means that the ratio of the actual Special Tax levy to the Assigned Special Tax is equal for all TMK Parcels of Interim Builder Property. For Undeveloped Property, "Proportionatelyy" means that the ratio of the actual Special Tax levy per Acre to the Maximum Special Tax per Acre is equal for all TMK Parcels of Undeveloped Property. The term "Proportionately" may similarly be applied to other categories of Taxable Property as listed in Section D below.Public Property" means, for each Fiscal Year, any property within the boundaries of CFD No. 2008-1, excluding ArchaeologicaUBiological Property and Golf Course Property, that (i) was owned by or irrevocably offered for dedication to the federal government, the State, the County or any other public agency as of January 1 of the previous Fiscal Year; provided however that any property that is leased by a public agency to a private entity and subject to taxation under Section 26-3.5(b) of the Ordinance shall be taxed and classified in accordance with its use; or (ii) was encumbered, as of January 1 of the previous Fiscal Year, by an easement or deed restriction for water and/or wastewater facilities or other public utilities making impractical its utilization for other than the purpose set forth in the easement or deed restriction.Related Party" means any entity which is a subsidiary or affiliate (with common stock ownership exceeding 10%), or a limited liability company, a member of which is an affiliate of DMB Associates, Inc., Alexander & Baldwin, Inc., or Kukui`ula Development Company (Hawaii), LLC, or their successors and assigns.Short Form Appraisal" means a limited appraisal of the land valuf; of a TMK Parcel prepared by a qualified appraiser as determined by the CFD Adminisl:rator using a form similar to Fannie Mae Form 2055, which is also known as an "exterior-only inspection residential appraisal report" designed to contain a limited amount of data about the subject property and utilizes only the sales comparison approach as i1:s sole approach to value.Special Tax" means the special tax to be levied in each Fiscal Year on each TMK Parcel of Taxable Property to fund the Special Tax Requirement.Special Tax Requirement" means that amount required in any Fiscal Year for CFD No. 2008-1 to: (i) pay debt service on all Outstanding Bonds due in such Fiscal Year; (ii)pay periodic costs on the Bonds, including but not limited to, credit enhancement and rebate payments on the Bonds due in such Fiscal Year or that were paid in the previous Fiscal Year but not included in the Special Tax Requirement for the previous Fiscal Year;iii) pay Incidental Expenses; (iv) pay any amounts required to establish or replenish any reserve funds for any Outstanding Bonds; (v) pay for reasonably anticipated Special Tax delinquencies based on the delinquency rate for the Special Tax levy in the previous Fiscal Year; (vi) pay directly for authorized CFD Facilities as set forth in the Ordinance of Formation and the Acquisition Agreement; less (vii) a credit for funds available to County of Kaua `i July 2l, 2008 CFD No. 2008-1 (Kukui`ula Project) Page C-S
reduce the annual Special Tax levy, as.determined by the CFD Administrator pursuant to the Indenture.State" means the State of Hawaii.Taxable Property" means all of the TMK Parcels within the boundaries of CFD No.2008-1 that are not exempt from the Special Tax pursuant to law or Section E below.Taxable Public Property" means all TMK Parcels of Public Property that are not exempt pursuant to Section E below.Tax Map" means an official map of the County designating parcels by Tax Map Key number.Tax Map Key Parcel" or "TMK Parcel" means a lot or parcel shown in a County Tax Map with an assigned tax map key number.Trustee" means the trustee, fiscal agent, or paying agent under the Indenture.Undeveloped Property" means, for each Fiscal Year, all Taxable Property not classified as Improved Lot Property, Interim Builder Property, Other Taxable Property, or Taxable Public Property.Updated Report" means the updated report to be submitted by the Developer to the CFD Administrator semi-annually (within 45 days after each March 1 and September 1)until all lots intended for a residential use within CFD No. 2008-1 have been sold to an entity other than a .Builder or Related Party. Such report shall contain (i) a lot-by-lot listing for all property that has sold (a) by the Developer to a Related Party, Builder or end user and the date of escrow closing or (b) to the extent the information is available;by a Builder or Related Party to an end user and the date of escrow closing, (ii)documentation (i.e., copies of purchase and sale agreement, escrow statement, etc.) of sales prices for all lots sold since the date of the last Updated Report which should include a breakdown of the land value and improvement value as separate components,iii) a listing of any residential building permits that have been issued. to the Developer,Builder, or Related Party since the date of the last Updated Report, (iv) any updates to the Kukui'ula Land Use Plan Map attached herein as Exhibit A.B. ASSIGNMENT TO LAND USE CATEGORIES Each Fiscal Year, all Taxable Property within CFD No. 2008-1 shall be classified as Improved Lot Property, Interim Builder Property, Other Taxable Property, Taxable Public Property, or Undeveloped Property, and shall be subject to Special Taxes in accordance with this Rate and Method of Apportionment determined pursuant to Section C below.County of Kaua `i July 21, 2008 CFD No. 2008-1 (Kukui `ula Project) Page C-6
r C. MAXIMUM SPECIAL TAX 1. Improved Lot Property and Interim Builder Property a. Maximum Special Tax The Maximum Special Tax for each TMK Parcel classified as Improved Lot Property or Interim Builder Property shall be the greater of (i) the amount derived by application of the Assigned Special Tax or (ii) the amount derived by application of the Backup Special Tax:.b. Assi n~ ed Special Tax The Assigned Special Tax for Improved Lot Property is calculated by multiplying the applicable tax rate as shown below ui Table 1 by the Improved Lot Property Value. The Assigned Special. Tax for Interim Builder Property is calculated by multiplying the applicable tax rate as shown below in Table 1 by the Interim Builder Property Value.TABLE 1 Assigned Special Taxes for Improved Lot Property and Interim Buildier Property Community Facilities District No. 2008-1 Fiscal Year 2009-2010 Land Use Description FY 2009-2010 Class Assigned Speciall Tax I Improved Lot Property 3.20 per $1,000 of Improved Lot Property Value 2 Interim Builder Property 3.20 per $1,000 of Interim Builder Property Value c. Increase in the Assigned Special Tax The Assigned Special Tax rates identified in Table 1 above shall be applicable for Fiscal Year 2009-2010, and shall increase thereafter,commencing on July 1, 2010 and on July 1 of each Fiscal Year thereafter,by an amount equal to two percent (2%) of the Assigned Special Tax for the previous Fiscal Year.d. Backup Special Tax The Fiscal Year 2009-2010 Backup Special Tax shall equal $14,311 per Acre, and shall increase thereafter, commencing on July 1, 2010 and on July 1 of each Fiscal Year thereafter, by an amount equal to two percent 2%) of the Backup Special Tax for the previous Fiscal Year.County of Kaua `i July 2l, 2008 CFD No. 2008-I (Kukui `ula Project) Page C-7
2. Undeveloped Property, Other Taxable Property, and Taxable Public Property The Fiscal Year 2009-2010 Maximum Special Tax for Undeveloped Property,Other Taxable Property, and Taxable Public Property shall be $14,311 per Acre,and shall increase thereafter, commencing on July 1, 2010 and on July 1 of each Fiscal Year thereafter, by an amount equal to two percent (2%) of the Maximum Special Tax for the previous Fiscal Year.D. METHOD OF APPORTIONMENT OF THE SPECIAL TAX Commencing with Fiscal Year 2009-2010 and for each following Fiscal Year, the Council shall levy the Special Tax until the amount of Special Taxes levied equals .the Special Tax Requirement. The Special Tax shall be levied each Fiscal Fear as follows:First: The Special Tax shall be levied on each TMK Parcel of Improve;d Lot Property at 100% of the Assigned Special Tax for Improved Lot Property and on each TMK Parcel of Interim Builder Property at 100% of the Assigned Special Tax far Interim Builder Property;Second: If additional monies are needed to satisfy the Special Tax Requirement after the first step has been completed, the Special Tax shall be -levied Proportionately on each TMK Parcel of Undeveloped Property at up to 100% of the Maximum Special Tax for Undeveloped Property;Third: If additional monies are needed to satisfy the Special Tax Requirement after the first two steps have been completed, then the levy of the Special Tax on each TMK Parcel of Improved Lot Property whose Maximum Special Tax is determined through the application of the Backup Special Tax shall be increased in equal percentages from the Assigned Special Tax up to the Maximum Special Tax for each such TMK Parcel;Fourth: If additional monies are needed to satisfy the Special Tax Requirement after the first three steps have been completed, then the levy of the Special 7'ax on each TMK Parcel of Interim Builder Property whose Maximum Special Tax is determined through the application of the Backup Special Tax shall be increased in equal. percentages from the Assigned Special Tax up to the Maximums Special Tax for each such TMK Parcel;Fifth: If additional monies are needed to satisfy the Special 'Tax Requirement after the first four steps have been completed, then the Special Tax shall be levied Proportionately on each TMK Parcel of Other Taxable Property at up to the Maximum Special Tax for Other Taxable Property;Sixth: If additional monies are needed to satisfy the Special Tax Requirement after the first five steps have been completed, then the Special Tax shall be levied Proportionately on each TMK Parcel of Taxable Public Property at up to the Maximum Special Tax for Taxable Public Property.County of Kaua `i July 21, 2008 CFD No. 2008-I (Kukui `ula Project) Page C-8
Notwithstanding the above, the Council may, in any Fiscal Year, lew Proportionately less than 100% of the Assigned Special Tax on Improved Lot Property and Interim Builder Property in step one (above) when (i) the Council is no longer required to levy a Special Tax pursuant to steps two through six above in order to meet; the Special Tax Requirement; (ii) all authorized Bonds have already been issued or the Council has covenanted that it will not issue any additional Bonds (except refunding bonds) to be supported by Special Taxes levied under this Rate and Method of Apportionment; and iii) all CFD Facilities that are expected to be funded by CFD No. 2.008-1 have been acquired, as determined by the CFD Administrator and permitted pursuant to the Acquisition Agreement.E. EXEMPTIONS No Special Tax shall be levied on up to 431 Acres of ArchaeologicaUBiological Property,Golf Course Property, Non-Profit Property, Non-Residential Property, Property Owner Association Property, and Public Property. Tax-exempt status will be assigned by the CFD Administrator in the chronological order in which property becomes ArchaeologicaUBiological Property, Golf Course Property, Non-Profit Property, Non-Residential Property, Property Owner Association Property, or Public Property.However, should a TMK Parcel no longer be classified as Archaeological/Biological Property, Golf Course Property, Non-Profit Property, Non-Residential 1roperty, Property Owner Association Property, or Public Property its tax-exempt status will be revoked.ArchaeologicaUBiological Property, Golf Course Property, Non-Profit Property, Non-Residential Property, and Property Owner Association Property that is~ not exempt from the Special Tax under this section shall be considered Other Taxable Property and is subject to the levy of the Special Tax and shall be taxed Proportionately under the fifth step in Section D above, at up to 100% of the applicable Maximum Special Tax for Other Taxable Property.Public Property that is not exempt from the Special Tax under this section shall be subject to the levy of the Special Tax and shall be taxed Proportionately under the sixth step in Section D above, at up to 100% of the applicable Maximum Special Tax for Taxable Public Property.F. INTERPRETATIONS Interpretations may be made by the Council by ordinance or resolution for purposes of clarifying any vagueness or ambiguity in this Rate and Method of Apportionment.G. MANNER OF COLLECTION The Special Tax shall be collected in the same manner and at the samie time as ordinary ad valorem property taxes; provided, however, that CFD No. 2008-1 may directly bill the Special Tax, may collect Special Taxes at a different time or in a different manner if necessary to meet its financial obligations, and may covenant to foreclose and may actually foreclose on delinquent TMK Parcels as permitted by the Ordinance.County of Kaua `i July 2l, 2008 CFD No. 2008-1 (Kukui `ula Project) Page C-9
H. PREPAYMENT OF SPECIAL TAX The Special Tax obligation of a TMK Parcel of Improved Lot Property may be prepaid in full, provided that there are no delinquent Special Taxes, penalties, or interest charges outstanding with respect to such TMK Parcel at the time the Special Tax obligation would be prepaid. The Special Tax obligation of a TMK Parcel of Unde;veloped Property or Interim Builder Property may be prepaid in full, provided that there are no delinquent Special Taxes, penalties, or interest charges outstanding with respect to such TMK Parcel at the time the Special Tax obligation would be prepaid and further provided that the TMK Parcel is in escrow to be sold to a person or entity other than a Builder or Related Party and the prepayment of the Special Tax obligation will occur as part of the closing of the escrow.. The Prepayment Amount for a TMK Parcel eligible for prepayment shall be determined as described below.An owner of a TMK Parcel intending to prepay the Special Tax obligation shall provide the CFD Administrator with written notice of intent to prepay. Within thirty (30) days of receipt of such written notice, the CFD Administrator shall determine the Prepayment Amount for such TMK Parcel and shall notify such owner of such Prepayment Amount.The Prepayment Amount shall be calculated according to the following formula:P=PVT+PAF The terms above have the following meanings:P = Prepayment Amount PVT = Present Value of the Assigned Special Tz~x computed using an interest rate equal to the weighted average coupon interest rate of the Outstanding Bonds. Should there be no Outstanding Bonds, assume an interest rate of 7%.PAF = Prepayment Administrative Fees For purposes of the calculation of the Present Value of the Assigned Special Tax, the term of the Special Tax shall be the maximum term specified in Section J, provided however that if all authorized Bonds have already been issued or the Council has covenanted that it will not issue any additional Bonds (except refunding bonds) to be supported by Special Taxes levied under this Rate and Method of Apportionment, the term shall conclude with the final maturity date of the final series of Bonds. For Undeveloped Property or Interim Builder Property, the Present Value of the Assigned Special Tax shall be computed using the applicable Assigned Special Tax for Improved Lot Property, based on the expected Improved Lot Property Value.Notwithstanding the foregoing, no prepayment will be allowed unless the amount of Special Taxes that may be levied on Taxable Property (excluding Other Taxable Property and Taxable Public Property), less expected Incidental Expenses, sY~all be at least 1.1 times the regularly scheduled annual interest and principal payments on all Outstanding Bonds in each future Fiscal Year and such prepayment will not impavr the security of all Outstanding Bonds, as reasonably determined by the CFD Administrator. Such County of Kaua `i July 21, 2008 CFD No. 2008-1 (Kukui `ula Project) Page C-10
determination shall include identifying all TMK Parcels that are expected to become exempt pursuant to Section E.With respect to any TMK Parcel that is prepaid, the Council shall indicate in the records of CFD No. 2008-1 that there has been a prepayment of the Special Tax obligation. The CFD Administrator shall prepare a notice of cancellation of the Special Tax obligation for such TMK Parcel and shall transmit a copy of the notice to the owner, who may file it with the Bureau of Conveyances of the State or land court, and the obligation of such TMK Parcel to pay such Special Tax shall cease.Example:Assume that a TMK Parcel of Improved Lot Property to be prepaid has an Assigned Special Tax for Fiscal Year 2009-2010 of $3,325, increasing at 2°io per year. The prepayment calculation is requested to be performed as of July 1, 2009.Assume further that there are no delinquent Special Taxes, penalties, or interest charges outstanding with respect to such TMK Parcel at the time the Special Tax obligation would be prepaid and that all Bonds have not been issued.Assume further that the weighted average coupon interest rate of the C-utstanding Bonds is 6% per anum. The County will incur Incidental Expenses of $750 in order to calculate the amount of the prepayment, and has determined that amount to be the Prepayment Administrative Fees.Calculation of Prepayment Amount P=PVT+PAF PVT = $70,979 (the Present Value of the Assigned Special Ta:x, which escalates at 2% per year for the remaining 49 year life of the Special Tax:, computed using a weighted average Bond interest rate of 6.0%).P = $70,979 + 750 (the Prepayment Administrative Fees).P = $71,729 I. PARTIAL PREPAYMENT OF SPECIAL TAX The Special Tax obligation of a TMK Parcel of Improved Lot Property may be partially prepaid, provided that there are no delinquent Special Taxes, penalties, or interest charges outstanding with respect to such TMK Parcel at the time the Special Tax obligation would be partially prepaid. The Special Tax obligation of a TMK Parcel of Undeveloped Property or Interim Builder Property may be partially prepaid, provided that there are no delinquent Special Taxes, penalties, or interest charges outstanding with respect to such TMK Parcel at the time the Special Tax obligation would be prepaid and further provided that the TMK Parcel is in escrow to be sold to a person or entity other than a Related Party and the prepayment of the Special Tax obligation will occur as part of the closing of the escrow. The Partial Prepayment Amount for a TMK Parcel eligible for prepayment shall be determined as described below.County of Kaua `i July 21, 2008 CFD No. 2008-1 (Kukui`ula Project) Page C-Il
An owner of a TMK Parcel intending to partially prepay the Special Ta:x obligation shall provide the CFD Administrator with written notice of intent to prepay. 'Within thirty (30)days of receipt of such written notice, the CFD Administrator shall determine the Partial Prepayment Amount of such TMK Parcel and shall notify such owner of such Partial Prepayment Amount. The Partial Prepayment Amount shall be calculated according to the following formula:PP = [(P-PAF) x F] +PAF These terms have the following meaning:PAF = the Prepayment Administrative Fees PP = the Partial Prepayment Amount P = the Prepayment Amount calculated according to. Section H F = the percentage by which the owner of the TMK Parcel is partially prepaying the Special Tax.With respect to any TMK Parcel that is partially prepaid, the Council shall indicate in the records of the CFD No. 2008-1 that there has been a partial prepayment of the Special Tax obligation, and the obligation of such TMK Parcel to pay such prepaid portion of the Special Tax shall cease.Notwithstanding the foregoing, no partial prepayment will be allowed unless the amount of Special Taxes that may be levied on Taxable Property (excluding Other Taxable Property and Taxable Public Property) after such partial prepayment, net of Incidental Expenses, shall be at least 1.1 times the regularly scheduled annual intf;rest and principal payments on all Outstanding Bonds in each future Fiscal Year and such partial prepayment will not impair the security of all Outstanding Boncls, as reasonably determined by the CFD Administrator. Such determination shall inch.~de identifying all TMK Parcels that are expected to become exempt pursuant to Section E';.Example:Assume that the owner of the TMK Parcel described in the previous example requests to prepay 60% of the Special Tax obligation.Calculation of Partial Prepayment Amount PP = [(P-PAF) x F] +PAF P = $71,729 (the Prepayment Amount calculated in the previous example)PAF = $750 F = 60% (the percent by which the owner of the TMK Parcel is partially prepaying the Special Tax Obligation).PP =[($71,729-$750) x 60%] +$750 PP = $43,337 County of Kaua `i July 21, 2008 CFD No. 2008-1 (Kukui`ula Project) Page C-12
EXHIBIT I~TABLE OF CONTENTS Execution Copy ARTICLE I. DEFINITIONS .................................:..........................................................................1 Section 1.01 Definitions ..........................:..............................................................................1 ARTICLE II. GENERAL AGREEMENTS ..................................................................................4 Section 2.01 The CFD ................................................................:...........................................4 Section 2.02 The Facilities and No Obligtion ........................................................................4 Section 2.03 The Financing of Seller Facilities and County Projects ....................................5 Section 2.04 The Bonds ..............................................................................:...........................5 Section 2.05 Incidental Expenses ...........................................................................................6 Section 2.06 Agreements ........................................................................................................6 Section 2.07 Findings .............................................................................................................7 ARTICLE III. FUNDING ..............................................................................................................7 Section 3.01 County Proceedings ...........................................................................................7 Section 3.02 Bonds .................................................................................................................8 Section 3.03 Bond Proceeds ..................................................................................................:8 Section 3.04 Bond Funding Parameters ..................................................................................8 Section 3.05 Secondary Market Transfers ..............................................................................8 ARTICLE IV. CONSTRUCTION OF FACILITIES ....................................................................11 Section 4.01 Public Procurement of Facilities ........................................................................11 Section 4.02 Construction .......................................................................................................11 Section 4.03 Independent Contractor .....................................................................................12 Section 4.04 Performance and Payment Bonds ......................................................................12 ARTICLE V. ACQUISITION AND PAYMENT .........................................................................12 Section 5.01 Construction and Dedication .............................................................................12 Section 5.02 Certificate of Acceptance ...................................................................................12 Section 5.03 Payment Requests ...............................................................................................12 Section 5.04 Processing Payment Requests .......................................13 Section 5.05 Payment ......................................................................................................:......13 Section 5.06 Restrictions on Payments ...........................................................................:.......13 Section 5.07 Acquisition of Additional Facilities ...................................................................14 Section 5.08 Defective or Nonconforming Work ...................................................................14 ARTICLE VI. OWNERSHIP AND TRANSFER OF FACILITIES ............................................15 Section 6.01 Facilities to be Owned by the County -Conveyance of Land an:d Easements to County .........................................................................................15 Section 6.02 Facilities to be Owned by the County -Title Evidence .....................................15 Section 6.03 Facilities Constructed on Private Lands ...................................:........................15 Section 6.04 Facilities Constructed on County Land .............................................................15 Section 6.05 Facilities to be Acquired by Other Accepting Agencies ...................................15 Section 6.06 Maintenance and Warranties .............................................................................15 879091.8 1
EXHIBIT D Execution Copy with or controlled by the Seller, with respect to overseeing and managing the construction of such Facility or its financing by the CFD, (v) costs of professional third parties incurred by the Seller, the County or the Accepting Agency associated with such Facility, such as engineering, accounting,inspection, construction staking, materials testing and similar professional services; (vi) professional internal costs of the County, including Incidental Expenses, and/or the Accepting Agency (other than those paid through fees set forth in (iii) above, related to the design, construction or acceptance of the Facility); (vii) the fair market value of any real property located outside of the boundaries of the CFD purchased for the construction of such Facility from an entity other than the Seller; (viii) legal and professional costs incurred by the County or the Accepting Agency with respect to the establishment and administration of the CFD; the issuance of bonds by the CFD, the levying of taxes and collection costs associated therewith to the extent not covered by items (i) through (vii) above; and (ix) costs of third parties directly related to the construction and/or acquisition of such Facility, such as costs of payment, performance and/or maintenance bonds, and insurance costs (including costs of any title insurance required hereunder). Actual Cost shall not include any cost of carry or interest expense of the Seller with respect to such Facility.Bonds" means the bonds, notes, leases, loans or other forms of indebtedness designated County of Kauai Community Facilities. District No 2008-1 Special Tax Bonds", or such other designation as necessary to better describe the obligation, if and when issued in one or more series at one time or from time to time by the County with respect to the CFD.Budgeted Cost" means the estimated cost of a Facility as shown on Exhibit A.Certificate of Acceptance" means a certificate to be issued by the County Clerk in the case of the County or, if not the County, an appropriate officer or official of the Accepting Agency certifying that all required action to accept the Facility has been taken by the Accepting Agency.CFD" means the County of Kauai Community Facilities District No. 2008-1, or such other CFD for the Project, if formed by the County under the Ordinance.County Projects" means any special improvements with a useful life of five years or more described in Item 15 of Exhibit A hereto and selected by the County to be financed with CFD funds.County's Project Share" means, with respect to each series of Bonds and any Special Taxes an amount equal to 15% of the Net Construction Proceeds of such series of Bonds or 15% of the proceeds of any Special Taxes collected in a fiscal year and not required to be used to pay Incidental Expenses, debt service on any Bonds, or otherwise required for any reserve accounts, if any.County's Unused Portion" has the meaning set forth in Section 2.03.Deposit Agreement" means that certain Amended Deposit and Reimbursement Agreement made and entered into as of November 1, 2007, as amended, by and between the County and the Seller,governing the Seller's payment of Incidental Expenses related to the formation and administration of the CFD and the issuance of Bonds.Facilities" or "Facility" means a special improvement or the special improvements described in, if adopted, the Ordinance of Formation, and any subsequent changes thereto allowed by the 879091.8 2
EXHIBIT D Section 2.05 Incidental Expenses.Execution Copy A. The County shall be paid all of its Incidental Expenses from the Bond proceeds,the proceeds of Special Taxes or, in the event of insufficient Special Taxes, pursuant to the terms of the Deposit Agreement, as applicable. If the County expects to incur Incidental Expenses it shall use its best reasonable efforts to levy a Special Tax to provide a proper matching of proceeds to Incidental Expenses. The County Finance Director, not less than 60 days prior to each fist;al year, shall prepare an estimate of the Incidental Expenses for the succeeding fiscal year. Any charge, for County overhead or staff time shall be made by the County using sound management/accounting principles. Seller shall have the right to review and comment to the County upon the allocation practices and methodologies used in allocating County overhead and staff costs and have the right, at Seller's expense, during reasonable business hours to audit or otherwise verify the County's Incidental Expenses.B. In estimating the Special Taxes available to pay debt service on any Bonds, to pay any costs of the Facilities or fund any reserves, the Special Taxes shall first be allocated in an amount equal to the annual Incidental Expenses estimated for the fiscal year by the Finance Director,which estimate may include a reasonable contingency amount.C. The County may retain third party professionals to perform all or part of the duties of the County in creating, operating and administering the CFD. The third party professionals may include, among others, administrators to prepare the tax levy and administer the CFD, financial advisors, legal advisors, underwriters, engineers and. tax collectors. The costs and fees of the third party professionals, consultants and advisors shall be included as Incidental Expenses.D. The parties agree that the Deposit Agreement shall apply to the Seller's payment of Incidental Expenses prior to the issuance of Bonds by the CFD and the receipt by the County of Special Taxes, and that any such advances, if eligible, may be reimbursed to the Seller from the Bond proceeds. Notwithstanding the levy and collection of Special Taxes by the County, the Seller during such time as the Seller is an Obligated Person, agrees to pay the Incidental Expenses to the extent all or part of such Incidental Expenses are not paid by the Special Taxes. For purposes of this paragraph,Seller agrees that Special Taxes shall first be applied to pay debt- service on CF]D Bonds and replenish any Bond reserve or expense fund. In the event of a shortfall of Special Tax revenues, the County will provide the Seller with an invoice for the County's unpaid Incidental Expenses. The Seller agrees to pay the County the amounts owed pursuant to this Agreement within thirty (30) business days of receipt of the invoice. Nothing contained in this Agreement is intended to terminate or modify the provisions of the Deposit Agreement.Section 2.06 Agreements. If a resolution of intention is adopted by the County Council pursuant to Section 26-2.3 of the Ordinance, the Seller acknowledges that the; County Engineer and any third party consultants under the direction of the County Engineer will prepare the report studying the CFD, as required by Section 26-2.4 of the Ordinance. Seller agrees to pay pursuant to the terms of the Deposit Agreement all costs, expenses and fees incurred by the County in connection with the preparation of such report. Seller agrees to cooperate and cause its consultants to cooperate, with the County Engineer and his/her third party consultants by providing all information, documents, studies,reports, financial information, cost estimates, title reports, descriptions of ownership structures,development experience, operating documents and agreements, construction financing arrangements,879091.8 6
EXHIBIT D Execution Copy issuance, sale and delivery of one or more series of Bonds; provided, however, that nothing herein shall be construed as requiring the County to issue the Bonds or any series thereof.Section 3.02 Bonds. If the County Council, exercising its sole discretion, approves the issuance of CFD Bonds pursuant to Article 7 of the Ordinance, the County, pursuant to the terms and provisions of this Agreement, may proceed with the issuance and delivery of th.e Bonds with respect to the CFD. The County shall not be obligated to pay the Purchase Price of the Facilities except from amounts on deposit in the Acquisition Account on or after the closing date of the Bonds. The County now or at anytime hereafter, makes no warranty, express or implied, that the proceeds of any Bonds deposited and held in the Acquisition Account, and any investment earnings thereon deposited to the Acquisition Account, will be sufficient for payment of the Purchase Price of all of the Facilities.Section 3.03 Bond Proceeds. The proceeds of any Bonds shall be deposited, held, invested,reinvested and disbursed as provided in the Indenture pertaining to such Bonds.The Seller acknowledges that any lack of availability of amounts in the Acquisition Account to pay the Purchase Price of Facilities shall in no way diminish any obligation of the Seller with respect to the contributions for the Facilities and mitigation measures required by this Agreement or any subdivision or other agreements to which the Seller is a party, or any governmental approval to which the Seller or any land within the CFD is subject.Section 3.04 Bond Funding Parameters. Upon the adoption of a bond ordinance by the County Council pursuant to Article 7, the Finance Director may take all reasonable action necessary to issue, sell and deliver the Bonds pursuant to the terms and conditions of the Ordinance, the bond ordinance and this Agreement. All of the following funding parameters and conditions shall apply to all Bonds issued by the County, unless otherwise amended by the County Council by ordinance or resolution.A. Bonds may be sold in one or several series, in such form as required by the Ordinance and approved by the Finance Director.B. Bonds shall be sold in an amount sufficient to: (i) pay the Purchase Price of the designated completed Facilities or Facilities to be completed within such time required by bond counsel, such Purchase Price shall be equal to the Actual Cost, including any approved change orders,of the Facility together with any related Incidental Expense that: (x) has not been previously paid with the proceeds of Special Taxes or Bonds, (y) would be treated under generally accepted accounting practices as a capital cost of the Facility, and (z) pertains to a Facility with a useful life of five years or more; (ii) pay all costs of issuance pertaining to the Bonds; (iii) pay any Incidental Expenses pertaining to the Bonds; (iv) fund a debt service reserve fund in an amount not in excess of that permitted by law;and (v) pay capitalized interest for a period not in excess of that permitted by the Ordinance.C. In connection with the sale of the first series of Bonds, and to the extent permitted by law, the total amount of Special Taxes projected to be received by the County in each fiscal year, subtracting the Incidental Expenses estimated for such fiscal year, shall be in each bond year not less than 110% of the amount needed to pay the debt service for each bond year to come due on the Bonds to be sold and any reserve requirements. In connection with any sales of Bonds after the first sale, the total amount of Special Taxes projected to be received by the County in each fiscal year 879091.8 g
EXHIBIT D Execution Copy shall be determined by the Finance Director, but in no event shall the projected amount of Special Taxes together with other available CFD monies be less than 100% of the estimated Incidental Expenses, the combined debt service on all Bonds outstanding and any amounts needed to fund any reserves payable in the fiscal year.D. The future values of any taxable property for purposes o~f establishing a debt service schedule shall not assume- an increase in values greater than the five ye~lr average for similar type property in the County, or such other percentage change as reasonably required by the County.E. At the time of issuance of any series of Bonds, Seller or• other owners of the Property shall have constructed or installed privately financed Project infrastructure or privately owned improvements that will not be paid or reimbursed by Bond proceeds or the proceeds of Special Taxes equal to $0.25 for each $1.00 of Net Construction Proceeds from the Bonds. The County acknowledges and agrees that Seller has constructed or installed over $25,000,000 (twenty-five million dollars) of Project public and private improvements that will not be paid or reimbursed with CFD funds, thus, for purposes of this condition, permitting $100,000,000 (one hundred million dollars) of Net Construction Proceeds from the Bonds. To the extent additional Net Construction Proceeds from the Bonds are desired, the Seller shall demonstrate that is has met the requirements of this Section 3.04E.F. Each Obligated Person shall execute and deliver, and thereafter comply with and carry out all the provisions of a "continuing disclosure undertaking" with respect to the Bonds that shall be in a form satisfactory to the County and the purchaser of the Bonds for such purchaser to comply with the requirements of the Rule (as such term is defined in the definition of "Obligated Person"). If any entity becomes an Obligated Person as a result of the acquisiition of land from the Seller, the Seller shall cause such purchaser to execute an agreement requiring ttie purchasing entity to fulfill the obligations of the Rule as a condition precedent to such acquisition.G. The Seller, in its capacity as the authorized representative of the owner of more than 25% of the land to be taxed in the CFD, accepts the rate and method of apportionment of the Special Taxes described in the document attached to the resolution of intention as Exhibit C, titled Rate and Method of Apportionment for County of Kauai Community Facilities District No. 2008-1 Kukui'ula Development Project)" (the "RMA"). Seller agrees to timely provide to the Finance Director, and such other third parties designated by the County, the "Updated Report" (as such term is defined in the RMA) at the times and in the form and substance required by the RMA.H. A notice of the existence of the CFD and a summary of the Special Tax shall be provided by the Seller or any successor to the Seller who is in the business ofd selling parcels of the Property, to each prospective purchaser of a residential lot within the CFD. Such disclosure document shall be in form and substance acceptable to the County. Each potential purchaser must acknowledge in writing that the purchaser received and understood the disclosure document. A signed copy of the disclosure document shall be maintained by the Seller and the Seller shall provide the County with a signed copy.I. Any disclosure document prepared in connection with the offer or sale of Bonds must clearly indicate that the Bonds are payable solely from the proceeds of the Special Taxes levied 879091.8 9
EXHIBIT I~Execution Copy Section 3.05 Secondary Market Transfers. Secondary market transfers of Bonds sold pursuant to Section 3.04(J)(ii) and (iii) above will be permitted provided the subsequent purchaser of the Bonds is a QIB, Accredited Investor or a SMMP purchasing for its own account and not with a view towards distribution. The offering and transfer restrictions shall be set out in the proceedings authorizing the issuance of such Bonds and the form of the Bonds shall contain a legend advising the owner thereof of the offering and transfer restrictions.Any offering restrictions and/or transfer restrictions imposed on the Bonds pursuant to this Agreement may terminate with the written approval of the Finance Director, which approval shall not be unreasonably withheld. The Finance Director shall not consider terminating the transfer restrictions unless one or more of the following events has occurred: (i) the Bonds are rated by a national rating agency "A" or higher; (ii) the requirements of Section 3.04(J)(i) above are satisfied with respect to all outstanding Bonds of the CFD and the amount of any overlapping assessment liens; or (iii) there has been a complete economic defeasance of the Bonds by means of an irrevocable escrow or trust comprised of cash and/or U.S. government securities rated in the highest rating category by a national rating agency.ARTICLE IV.CONSTRUCTION OF FACILITIES Section 4.01 Public Procurement of Facilities. All services or materials related to the design, engineering, construction or installation of the Facilities that are expected to be financed with Special Taxes or Bond proceeds shall be procured in a public, competitive manner pursuant to the provisions of either: (i) the State public bidding statutes; (ii) the bidding rules and policies of the County; (iii) the CFD bidding procedures set forth on Exhibit C to this Agreement; or (iv) such other public bidding process approved by the County Attorney. The Seller shall certify to its compliance with the public procurement requirements set forth. above with every Payment Request for a completed Facility. Bond proceeds and Special Taxes may be spent to reimburse the Seller for Facilities constructed or acquired by the Seller prior to the effective date of this .Agreement.Each bid document, design contract, construction contract or other contract or agreement for services or materials related to .completed Facilities entered into by the Sellel- after the date of this Agreement shall provide that the respective professionals, contractors, material suppliers, vendors or other contracting party shall not have recourse, directly or indirectly, to the County, the Accepting Agency or to CFD monies for the payment of any costs under such contract or agreement nor shall the County, the Accepting Agency or the CFD have any liability, responsibility or obligation for any claims, damages, fees, costs or expenses arising therefrom and Seller shall have sole liability for payment under such contract or agreement for all such amounts.Section 4.02 Construction. Any Facility to be acquired by an Accepting Agency hereunder shall be constructed by or at the direction of the Seller in accordance with the plans and specifications approved by the Accepting Agency and the Accepting Agency's requirements for such type of infrastructure to be dedicated or sold to such Accepting Agency. The Seller shall perform all of its obligations hereunder and shall conduct all operations with respect to the construction of the Facilities it constructs or causes to be constructed in a good, workmanlike and commercially reasonable manner 879091.8 11
EXHIBIT D ARTICLE VII.INSURANCE Execution Copy Section 7.01 Insurance Requirements. The Seller shall, and shall cause its subcontractors and contractors to, at all times prior to the final Acceptance Date of all Facilities., maintain and keep in full force and effect, or cause the general contractor for the Facilities to maintain in full force and effect, insurance policies with coverage and limits of insurance required by the Accepting Agency that will acquire such Facility, which insurance policies shall be maintained with insurers and under forms of policies reasonably satisfactory to the Accepting Agency accepting the Facility.Section 7.02 Evidence of Insurance: The Seller shall furnish to an Accepting Agency, from time to time upon request of such entity, a certificate of insurance regarding each insurance policy required to be maintained by the Seller hereunder.ARTICLE VIII.REPRESENTATIONS, WARRANTIES AND COVENAI\rTS Section 8.01 Representations, Covenants and Warranties of the Seller. The Seller represents, warrants and covenants for the benefit of the County as follows:A. Organization. The Seller is a duly organized and validly existing limited liability company under the laws of the State, is in compliance with the laws of~ the State, and has the power and authority to own its properties and assets and to carry on its business as now being conducted and as now contemplated.B. Authority. The Seller has the power and authority to enter into this Agreement,and has taken all action necessary to cause this Agreement to be executed and delivered, and this Agreement has been duly and validly executed and delivered by the Seller.C. Binding Obli ag tion. This Agreement is a legal, valid anti binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject to bankruptcy and other equitable principles.D. Compliance with Laws. The Seller shall not with knowledge commit, suffer or permit any act to be done in, upon or to the lands in the CFD or the Facilities in violation of any law,ordinance, rule, regulation or order of any governmental authority or any covenant, condition or restriction now or hereafter affecting the lands in the CFD or the Facilities.E. Requests for Payment. The Seller represents and warrants that (i) it will not request payment from the County for the acquisition of any improvements that are not part of the Facilities; and (ii) it will diligently follow all procedures set forth in this Agreement with respect to the Payment Requests.F. Financial Records. Until the final acceptance of thf; Facilities, the Seller covenants to maintain proper books of record and account for the construction of the Facilities and all costs related thereto. Such accounting books shall be maintained in accordance with generally 879091.8 16
EXHIBIT I1 Execution Copy Section 10.06 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 possible.Section 10.07 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto. This Agreement may be freely assigned by the Seller.Section 10.08 Other Agreements. The obligations of the Seller hereunder shall be those of a party hereto and not as a Seller of property in the CFD. Nothing herein shall be construed as affecting the County's or the Seller's rights, or duties to perform their respective obligations, under other agreements, use regulations or subdivision requirements relating to the development of the lands in the CFD. This Agreement shall not confer any additional rights, or waive; any rights given, by either party hereto under any development or other agreement to which they are a party.Section 10.09 Merger. No other agreement, statement or promise made by any party or any employee, officer or agent of any party with respect to any matters covered hereby that is not in writing and signed by all the parties to this Agreement shall be binding.Section 10.10 Parties in Interest. Nothing in this Agreement, expressed or implied, is intended to or shall be construed to confer upon or to give to any person or• entity other than the County and the Seller any rights; remedies or claims under or by reason of this Agreement or any covenants, conditions or stipulations hereof; and all covenants, conditions, promises, and agreements contained in this Agreement by or on behalf of the County or the Seller shall be for the sole and exclusive benefit of the County and the Seller.Section 10.11 Amendment. This Agreement may be amended, from time to time, by written Supplement hereto and executed by both the County and the Seller.Section 10.12 Counterparts. This Agreement may be executed in: counterparts, each of which shall be deemed an original.Section 10.13 Conflict. If any provision of this Agreement is in conflict with or inconsistent with any provision of the Ordinance, the provision of the Ordinana~ shall control.Section 10.14 Recordation of Special Tax Lien. The Seller agrees to record a notice of Special Tax lien in a form reasonably satisfactory to the County on all property subject to the Special Taxes.This space left intentionally blank)879091.8 20
EXHIBIT D EXHIBIT A DESCRIPTION OF AUTHORIZED FACILITIES ELIGIBLE FOR CFD FINANCING Execution Copy The facilities listed in Items 1-15, inclusive, shall have the first priority for financing with proceeds of any Bonds secured by the Special Taxes, if later authorized and/or proceeds of thE; Bonds or Special Taxes are available, then the Facilities listed in Item 16 shall have second priority and shall be eligible for financing only upon completion of all financing for all facilities listed in Items 1-15 from such proceeds; provided, that if any of Items 1-15 are no longer to be included in the C'FD pursuant to an agreement between the County and the Seller, the financing of the Facilities listed in Item 16 shall not be dependent upon the completion of such removed items.Item No.Description of Item Budgeted Cost 1.Omao 16-inch Transmission Main 2,545,000 2.Piwai Well Nos. 2 & 3 and 0.1 MG Reservoir 5,819,000 3.Paanau 0.5 MG Reservoir 10,078,000 4.Manuhonuhonu Reservoir 2,578,000 5.Roundabout 8,477,000 6.Western B ass Road 3,900,000 7.Major Project Road -Entry to Club Drive 15,050,000 8.Major Project Road -Club Drive to Lawai Connector Road 8,020,000 9.Lawai Connector Road 1,325,000 10.Lawai Road Widening 2,997,000 11.Shoreline Recreation Improvements,including $360,000 contribution to County constructed Shoreline Recreational Im rovements 00,000 12.Northern Leg of Western Bypass Road,including $278,760 contribution to County constructed ortion of the Northern Leg 2,430,000 13.Major Project Road -Lawai Connector Road to "A" Entr 3,406,000 14.Life Safety -Sirens 327,000 879091.8 22
EXHIBIT I)Post-Bid:Execution Copy 1. Lowest bid numbers are spread and reviewed for accuracy and qualifications of bidders.2. If lowest responsible bidder number is correct, they are contacted to setup work.3. Bid results and lowest responsible bidder is announced.4. Schedule of lump sum bid results are distributed to County staff.l 5. Winning bid is held and available for County staff inspection.l 1 Effective for bid results announced after July 30, 2008.879091.8 27