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HomeMy WebLinkAboutRES 347 Draft 01 2006-2008 tv or ~ •~4 L~ COUNTY OF HAWAII :r STATE OF HAWAII RESOLUTION NO. 347 U"7 A RESOLUTION TO APPROVE THE ADMINISTRATIVE GUIDELINES FOR EVALUATION OF PROPOSED COMMUNITY FACILITIES DISTRICTS AND TO ENCOURAGE THE DEPARTMENT OF FINANCE TO ADMINISTER THE EFFECTIVE STANDARDS AS ESTABLISHED BY THE GUIDELINES. WHEREAS, chapter 32 of the Hawaii County Code 1983 (2005 Edition, as amended), titled the "Community Facilities District Code", hereinafter "chapter 32", authorizes the County of Hawaii (the "County") to establish community facilities districts ("CFDs") within the County for the purpose of financing the purchase, construction, installation, expansion, improvement or rehabilitation of special improvements; and WHEREAS, in each and every circumstance, the decision as to whether or not the County will establish a CFD under chapter 32 will be made solely by the County Council; and WHEREAS, the establishment of a CFD is subject to the satisfaction of vazious substantive and procedural requirements specified in chapter 32; and WHEREAS, the County recognizes that the requirements of chapter 32 must be applied in a fair and consistent manner and based on the development of effective standards; and WHEREAS, effective standards have been prepared by the Department of Finance in a document titled "Administrative Guidelines for Evaluation of Proposed Community Facilities Districts"; and WHEREAS, a copy of the Administrative Guidelines for Evaluation of Proposed Community Facilities Districts is attached to this resolution; and WHEREAS, the administrative guidelines, as organized into two basic parts, are as follows: 1. Part I relates to the CFD Review Committee that has been established to administer the review process for proposed CFDs, and the review process to be administered by the Committee, including provisions for the initiation of the review process, the initial and subsequent reviews to be conducted by the Committee and the County's retention of special consultants for advice and assistance in connection with the consideration and formation of proposed CFDs. 2. Part II relates to the criteria to be applied by the Committee in its review of proposed CFDs including a description of special improvements eligible for CFD funding; the types of public benefits that these special improvements should be expected to provide; the funding priorities of different types of special improvements; the special taxes to be imposed; the appraisals and market absorption analyses required to support the feasibility of the CFDs; relevant structural considerations for CFD bond issues; and disclosure obligations to CFD bond investors and purchasers of CFD properties; now, therefore, BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII, that the attached Administrative Guidelines for Evaluation of Proposed Community Facilities Districts is hereby approved as the procedures and standards to be applied by the Mayor's Administration towards the evaluation of proposals for a CFD; and BE IT FURTHER RESOLVED that the council encourages the Department of Finance to administer the effective standards as established by the Administrative Guidelines for Evaluation of Proposed Community Facilities Districts; and 2 BE IT FINALLY RESOLVED that the Clerk of the County of Hawaii shall transmit copies of this resolution to the Office of the Mayor and the Department of Finance. Dated at Hilo , Hawaii, this 3rd day of October , 2007. INTRODU ED B COUNCIL M R, CO TY OF H WAI`I COUNTY COUNCIL ROLL CALL VOTE County of I-Iawai`i aYES NOES ABS ?:x Hilo, Hawaii r;oR~ X H[GA X I hereby certify that the foregoing RESOLUTION was by HOFFMANN the vote indicated to the right hereof adopted by the COUNCIL of the ?KEDA County of Hawaii on OCtOber 3 . 2007 X JACOBSON X NAEOLE X AT"TEST: Pll,AGO X YAGONG X YC SHIMOTO 8 0 1 0 - _ . J~ ~ ~ ~ ~ ~ ~ ~ ference. C-686/Waived FC COUN"t`Y CLERK CHAIRMAN OFh1 ER - SOLUTION NO. _ _ r' 3 COUNTY OF HAWAI`1 ADMINISTRATIVE GUIDELINES FOR EVALUATION OF PROPOSED COMMUNITY FACILITIES D1STR[CTS Chapter 32 of the Hawaii County Code ("Chapter 32"), entitled the "Community Facilities Districts Code," authorizes the County of Hawaii (the "County") to establish community facilities districts ("CFOs") within the County for the purpose of financing the purchase, consrtuction, installation, expansion, improvement or rehabilitation of special improvements (as defined in Chapter 32). The establishment of a CFll is subject to satisfaction of vazious substantive and procedural requirements specified in Chapter 32. The County recognizes that the requirements of Chapter 32 must be applied in a fair and consistent manner based on fair and consistent standards. The purpose of these administrative guidelines is to establish the procedures and standards to be applied by the Administration in evaluating proposed CFOs and CFD bond issues. "The procedures and standards set forth in these guidelines will apply generally to CFOs proposed by the County itself and those proposed by private owners. However, the application process will differ for CFOs proposed by private owners (as discussed herein). In addition, to the extent applicable in the case of CPDs proposed by the County, the availability of County funding to defray costs and the degree of County oversight over construction of the special improvements will he taken into ac;ectunt in addressing various standards set forth in these guidelines. In each and every circumstance, the decision as to whether or not the County will establish a CFD under Chapter 32 will be made solely by the County. Nothing contained herein shall he construed as obligating the County [o establish a CFD in any circumstance or as granting to any person any right to have the County establish a CFll in any circumstance. These administrative guidelines aze organized into two basic parts: 1 art I: relates to the CFD Review Committee that has been created to administer the review process for proposed CFOs, and the review process to be administered by the Committee, including provisions for the initiation of the review process, the initial and subsequent reviews (if necessary) to be conducted by the Committee and the County's retention of special consultants for advice and assistance in connection with the consideration and formation of proposed CPDs. Attached as Exhibits A and B hereto are the current corms of the CFD Application and the Deposit and Reimbursement Agreement described herein with respect to the County's CPD process. Part II: relates to the criteria to be applied by the Committee in its review of proposed CFDs, including a description of special improvements eligible for CFD funding, the types of public benefits that these special improvements should be expected to provide, the funding priorities of different types of special improvements, the special taxes to be imposed, the appraisals and market absorption analyses required to support the feasibility of the CFDs, relevant structural considerations for CFD bond issues, and disclosure obligations to CFD bond investors and purchasers of CPD properties. 2 PAKT I: THE CFD REVIF,W COMMITTEE AND THE CFD REVIEW PROCESS A. THE CFD KEVIEW COMMITTEE Each proposed CFD shall be evaluated by the Administration's Community Facilities llistrict Review Committee (the "Committee"), which shall include the following officials or their respective designees: the Managing Director, the Finance Uirector; the Planning Director; the Director of Public Works; and the Corporation Counsel. The Committee shall be chaired by the Finance Director or his/her designee. The Committee shall review each proposed CFD for compliance with the requirements of Chapter 32 and these administrative guidelines. Each proposed CFD will be reviewed initially prior to consideration by the County Council of the Resolution of Intention (the "ROI") authorizing the institution of proceedings for the formation of the CFD, and again if necessary prior to consideration by the County Council of the Ordinance of Formation providing for the establishment of the CFD (the "Ordinance of Formation") and the Bond Ordinance providing for the issuance of bonds to finance special improvements relating to the CFD (the "Bond Ordinance"). B. INITIATION OF CFD REVIEW PROCESS 1. CFD Application. Each developer/landowner proposing the formation of a CFD (the "Applicant") will be required to submit a completed Application for CFD Financing (the "CFD Application") to the Department of Finance. 'l~he current form of CI'D Application is attached as Exhibit A hereto. Submission of the completed CFD Application will be required before the Applicant petitions the Council to commence proceedings for formation of the proposed CFD, with sufficient time allowed for the Committee to conduct its initial review of the proposed CFD. 2. Deposit of Funds. In addition, in connection with the processing of a CFD Application and as a condition to the taking of any action on the Applicant's petition, the Applicant will be required to deposit funds with the County to cover the costs and expenses incurred by the County in connection with its consideration and implementation of the proposed CFD, including a reasonable charge for administrative stat~f time, fees of the County's special consultants and out-of=pocket expenses of ~ The application procedure outlined in this Section applies specifically to CFD proceedings commenced upon petition by a developer/landowner. In the case of proceedings commenced by [he Council on its own initiative, the Committee will work cooperatively with the Council to develop and obtain the necessary information for the Committee's review of the proposed CFD. 3 [he County relating to the proposed CFD. The deposit will be made pursuant to a Deposit and Reimbursement Agreement between the County and the Applicant. The current form of Deposit and Reimbursement Agreement is attached as Exhibit B hereto. The County will generally suggest the initial deposit to be at least $75,000, and may require a higher amount depending on the circumstances. Pursuant to the Deposit and Reimbursement Agreement, the deposit will be used by the County to pay its costs and expenses relating to the proposed CFD and is subject to replenishment by the Applicant on demand of the County if the balance falls below a specified minimum level. 1'hc use of the deposit shall in no way be construed as obligating the County to form the proposed CFD or to issue CFD bonds. Upon termination of the CFD proceedings or issuance of bonds for the CFD (as applicable), and after payment of all of the County's costs and expenses relating to the CFD, any remaining portion of the deposit will be returned to the Applicant. C. THE CFD REVIEW PROCESS 1. Initial Review Process. The Committee will conduct an initial review process for each proposed CPD prior to consideration of the ROI for the CFD by the County Council. In the case of CFD proceedings to be commenced by petition of a developer/landowner, this initial review process will be conducted upon the Committee's receipt of the completed CFD Application for the proposed CFD, and the Applicant's petition to Council should not be submitted until completion of this review process. This initial review process will focus primarily on the following azcas: a. "fo confirm that the information provided in the CFD Application is sufficiently complete and responsive to the requirements of Chapter 32 and the review criteria set forth herein; b. "fo identify and evaluate the public benefits and funding priorities associated with the special improvements included in the proposed CFD; c. 'I'o review the proposed forms of the Applicant's petition to Council and ROI, including the legislative tindings and detcrrninations [o be made pursuant to the ROI; d. 'fo review the proposed rate and method of apportionment (the "RMA") for the special taxes to be imposed within the proposed CFD, as specified in the RMA report prepared by the County's special tax consultant; e. 'I'o review relevant components of [he proposed CFD for conlormity with the guidelines set forth herein and to identify and address any potential difficulties that may be encountered at later stages in the CFD process (e.g., at the time of the County's consideration of the Ordinance of Formation or Bond Ordinance, or at the time of any subsequent offering of CFD bonds 1'or the proposed CFD); 4 2. Additional Discretionary Review. To the extent deemed necessary or appropriate by the Committee in its discretion, each proposed CFD will be subject to further review by the Committee, prior to submission of the Ordinance of Formation and the Bond Ordinance to [he County Council, for the following purposes: a. To review the principal components of the CFD and CFD bonds to be authorized in relation to the requirements of Chapter 32 and the review criteria set forth herein, to the extent that such matters were not fully addressed in the initial review process; and b. If applicable, to consider any significant changes in relevant facts or circumstances subsequent to the completion of the initial review process. 1). CONSULTANTS The Committee may seek and rely upon the advice of special consultants retained by the County in connection with the Committee's review of proposed CFDs. All such special consultants shall be independent of the Applicant. The selection of such special consultants will be made pursuant to the County's consultant selection procedures for bond issues (which are applicable to CFD bonds). Accordingly, the selection of special consultants will he made solely by the County in its discretion. Typically, County will retain the following special consultants in connection with the Rirmation of CFDs and issuance of CFD bond issues: 1. Special Tax Consultant. A special tax consultant will be retained by the County to collect and analyze relevant information on the tax base in the CFD, advise the County regarding appropriate tax calculation and allocation methods to support the costs of the proposed special improvements and related costs of the CFD and the CFD bonds, and prepare the RMA reflecting the tax calculation and allocation methods to be implemented. (See Part ILB for a discussion oC RMAs.) 2. Appraiser. An appraiser will be retained by the County to determine the value of the properties within the CFD, and to prepare the MAI appraisal report(s) on such value for purposes of Chapter 32, Section 32-18, and for bond mazketing purposes. At its discretion, the County may permit the appraisal to be prepared by an appraiser not appointed by the County, bul the County reserves the right in such instances to retain its own appraiser to perform an independent review of the appraisal. (See Part iLC for a discussion of relevant appraisal criteria.) 3. Market Absorption Consultant. In most cases, the County will retain a market absorption consultant to analyze and report on the rate at which the properties in the CFD which are subject to a special tax are expected to he sold or leased to end users. As necessary, the market absorption consultant will also provide 5 relevant information to the appraiser for purposes of the CFD appraisals. (See Part II.D for a discussion of the mazkel absorption study.) 4. Bond Underwriter. In most cases, the County will sell CFD bonds in a negotiated sale process [n connection with such sales, the County will retain a bond underwriter to assist in the structuring of the bond issue, to market the bonds to potential investors and to purchase the bonds from the County for reoffering to investors. (See Part ILF for a discussion of considerations regarding the structure of CFD bond issues.) Depending on the size and complexity of the offering, the County may retain a team of two or more underwriting firms, in which case one firm will be designated as the lead underwriter. "fhe bond underwriter will be represented by legal counsel for the purpose, among others, of preparing the offering and underwriting documents for the CFD bond issue. The underwriter will select its own legal counsel, but the underwriter will be expected to consult with the County in making this selection so as to help avoid potential conflicts and promote the formation of an effective financing team. 5. Snccial Cuunscl. The County will retain bond counsel for purposes of: preparing the ROI, Ordinance of Formation, Bond Ordinance and bond financing documents; assisting the County in the review of the RMA, appraisals, market absorption study, bond purchase contract, otTicial statement and other documents relating to the formation of the CFD and the offering and sale of bonds for the CFD; and providing legal advice regarding the foregoing. In appropriate cases, special tax counsel will also be retained to provide tax advice regarding the CFD bonds in conjunction with the services of bond counsel. In connection with the issuance of CFD bonds, the County may also retain disclosure counsel for the purpose of preparing the official statement or other offering document to be circulated in connection with the marketing of the bonds. 6. Financial Advisor. In most cases, the County will also retain a financial advisor to provide financial analysis and advice regarding the formation o1~ the CPD and the structure, offer and issuance of the CFD bonds, and to assist in coordinating the respective responsibilities of the County and its special consultants in connection with the foregoing. 7. Other Annointments. In addition to the foregoing special consultants, the County will also select other outside service providers in connection with CFD bond issues, including the bond trustee, credit enhancement provider and official statement printer. 6 PART II: CRITERIA FOR REVIEW OF CFA PROPOSALS A. ELIGIBLE IMPROVEMENTS 1. Eligible Special Improvements Generally. Special improvements eligible for funding under Chapter 32 include infrastructure facilities that serve and provide benefits to the public in connection with the formation of a CFD. Such facilities are required to have an estimated useful life of five years or morc. Privately-owned facilitics may be eligible for financing under Chapter 32 if the County Council determines that they serve a public purpose? Eligible special improvements may include, but are not limited to, the following types of facilities and improvements: a. Streets, roads, highways, pedestrian malls, sidewalks or alleyways, including but not limited to, grading, paving or otherwise improving the foregoing; b. Public parking facilities; c. Lighting systems, including but not limited to traffic signals, for any public right-ot=way; d. Local park, recreation, child care, parkway and open-space facilities; e. Elementary, secondary, vocational and higher education school sites and lacilitics; E Libraries, museums or other cultural facilities; g. 1'he undergrounding of natural gas pipeline facilities, telephone lines, facilities tier the transmission or distribution of electrical energy, cable television lines and other utility facilities, subject to the further provisions of Chapter 32, Section 32-7(g); h. Water systems; i. Police, criminal justice (including but not limited to jails and courthouses), fire suppression (including but not limited to Lire stations) and paramedic facilities; j. Wastewater, storm damage, sewage removal or treatment, or solid waste disposal, recycling or resource recovery systems or facilities; k. 'I}ansit or transportation systems; z I[ should be noted that federal tax laws impose limits on tax-exempt bonds that can be issued to finance privately-owned infrastructure facilitics as part of a CFD. 'Therefore, it may be necessary to issue taxable bonds to finance such facilities. Chapter 32 permits the issuance of both tax-exempt and taxable bonds for CFDs. 7 I. "Felecommunications systems; and m. Any other facilities which the County is authorized by law to contribute revenue to, or construct, own, maintain or operate. 2. Required Public Benefits. Chapter 32, Section 32-18, provides in relevant part that: "No district shall he established unless the council finds that such approval is in the public interest." In connection with each CFD proposal, this public interest requirement will be evaluated in terms of the benefits to the public that will be provided by the special improvements to be funded through the formation of the CFD and issuance of CFD Bonds. In view of the financial benefits to be realized by developers and owners of properties within the boundaries of the CFD, the County will require demonstration of meaningful types and levels of public benefits. There is no single standard by which public benefits produced by CFDs can be measured. Therefore, each Applicant should be expected to demonstrate how and to what extent specific improvements included in its proposed CFD, and the CFD as a whole, will produce meaningful benefits to the public. Consideration will be given to the fallowing types of factors: a. Regional Benefits. Special improvements that provide regional benefits include those which serve and provide benefits to communities beyond the boundaries of the CFD, including but not limited to: the construction or improvement of regional roadways and transportation systems; the expansion or improvement of water and sewer facilities that enhance the capacity of such facilities to serve communities within the region; and the construction or improvement of other public facilities (such as police stations, fire stations, and public parks and recreational facilities) that serve communities outside the proposed CFD. Generally speaking, improvements providing regional benefits will be expected to do more than simply offset or mitigate burdens on regional public facilities resulting from the development of properties within the CFD; they will be expected to produce a net improvement to such regional facilities and the public benefits produced by such facilities. In most cases, a special improvement will not be considered as providing regional benefits if the direct benefits provided by the improvement are limited to residents and businesses within the CFD. However, certain special improvements, although primarily local in nature, may nevertheless he considered as providing regional benelits if they provide significant indirect benelits beyond the CFD boundaries. "these may include, for example, innovative infrastructure facility projects within the CFD which are implemented as pilot projects and identified by the County as potentially having broader application. h. Furtherance oFldentilied County Pro crams/F Obiecrfves. Special improvements may provide public benefits by supporting identified County programs and objectives, such as infrastructure facilities necessary for the development of affordable housing projects (including projects to provide senior housing, low-to-moderate income housing or workforce housing) or for the revitalization of targeted areas of economic distress. 8 c. Cnviranmentul Benefits. Special improvements may also be considered as providing public benefits to the extent that they help to address environmental concerns. Examples may include: acquisition and preservation of wetlands (or other significant ecological habitats) and open space; provision of public access to coastal areas and recreational trails; and construction of storm water facilities. d. Facilities Enhunc•ed Beyond Leyal Reuuiremenls. Under applicable land use and development laws, approvals for new property developments are typically conditioned upon compliance with vazious requirements regarding infrastructure facilities to be provided. While these required facilities will generally be recognized as providing public benefits, developments that meet, but do not exceed, the minimum requirements may not be regarded as providing a sufficient level of public benefits to merit funding through a CFD. Consideration will generally be given to higher levels of public benefits provided by infrastructure facilities that exceed the minimum requirements. e. Acceleration oflmnravemenls•. In some cases, the availability of CFD funding for infrastructure may have the effect of accelerating the completion of infrastructure facilities in comparison to other funding sources. Accelerated completion of infrastructure, in and of itself, does not necessarily provide public benefits. However, to the extent that the infrastructure itself provides public benefits, consideration may be given to the extent to which CFD funding can enhance these benefits by making them available to the public sooner. f Other Public Benefits. 'The foregoing is not intended as an exhaustive listing of factors to be considered in detcnnining whether improvements within a proposed CFD will provide meaningful benefits to the public. his recognized in this regard that CFDs may provide other forms of public benefits depending on the particular facts and circumstances involved. "Therefore, consideration will be given to other potential benefits in light of the applicahle facts and circumstances. 3. Priority of Funding. In order to optimize the public benefits realized through a CFD bond issue, special improvements provided by the CFD will generally be prioritized for funding purposes in the following order: First: Facilities that constitute regional or backbone infrastructure providing public benefits required to serve proposed development; Second: Other facilities addressing a clearly demonstrated public need; and Third Other facilities authorized to be financed pursuant to Chapter 32. 9 Notwithstanding the foregoing, it is recognized that circumstances may differ significantly from one CFD to another. In appropriate cases, exceptions to the above priority may be appropriate in order to enhance the potential benefits provided to the public. The Committee will consider whether exceptions are appropriate on a case-by-case basis. B. SPECIAL TAX FORMULAS AND MAXIMUM SPECIAL TAXF,S 1. Reasonable Basis of A~nortionment. Special taxes must be allocated and apportioned on a reasonable basis to al] categories and classes of property (other than exempt property) within the CFD. Exemptions from the special tax may be given to parcels which are publicly-owned, are held by property owners associations, are used for a public purpose such as open space or wetlands or are affected by public utility casements making impractical their utilization for other than the purposes set forth in the easements. Gther exemptions in whole or in part may also be provided to the extent deemed reasonable and equitable by the County. 2. Total Tax Burden. The County will need to be reasonably satislied that the total tax burden on properties within a proposed CFD will not be excessive, including the anticipated annual CFD special tax, together with ud valorem property taxes, special improvement assessments, special taxes for any overlapping community facilities districts, and any other taxes, fees and chazges payable from and secured by the property. Limits on the CPD special taxes will be established at levels necessary to avoid undue burdens on properties, as determined by the County in consultation with the CPD appraiser, market absorption consultant and other special consultants to the County. 3. Rate and Method of Annortionment. The rate and method of apportionment for CFD special taxes must be structured so as to produce annual special tax revenues sufficient to pay reasonable and necessary annual administrative expenses of the CPD and 110% of the annual debt service on all CPD bonds. Additionally, the rate and method of apportionment may he structured so as to produce amounts suliicient to fund (a) any amounts required to establish or replenish any reserve fund established for a CFD bond issue, (b) amounts to pay directly the costs of public facilities authorized to be financed by the CFD, (c) amounts to pay the costs of services authorized to be financed by the CFD, (d) the accumulation of funds reasonably required for future debt service on CFD bonds, (e) amounts equal u, projected delinquencies in special tax payments, (Q remarketing, credit enhancement or liquidity fees, and (g) any other costs or payments permitted by law. Generally, the rate and method of apportionment for CFD special taxes will be required to include aback-up tax so that changes in development within the CFD would not result in the inability to levy special taxes that would produce special tax revenues in such amounts. 10 4. Increases in Special Tax. Generally, the maximum special tax levied to finance public facilities for any parcel within a CFD Ibr which a building permit for the construction of a for-sale residential unit has been issued shall no[ escalate. However, the County may, in its discretion, on a case-by-case basis, allow such maximum special tax to escalate atmually in an amount not exceeding the maximum specified in the applicable RMA. "fhe increase in the special tax levied on any parcel within a CFD as a consequence of delinquency or default by the owner on any other pazcel may not exceed the maximum specitied in the applicable RMA. 5. Prepayment of Special Tax. 'T'ypically, the RMA for a CFD will be structured so as to allow the prepayment of special taxes by a property owner. The applicable prepayment provisions must provide for payment of the property owner's allocable share of the CFD bonds and other CFD costs for which the owner is responsible. C. APPRAISALS Chapter 32, Section 32-18, provides in relevant par[ that: "No district shall be established unless the council finds that the appraised value of the land in the district (in accordance with prevailing standards of appraisal then used by financial institutions for loans thereon) is at least two times the estimated cost of the proposed improvement...." The appraised value of the land in a proposed CFD must he included in the report on the CFD to he filed by the Director of Public Works under Chapter 32, Section 32-21, within 60 or 90 days otter adoption of the ROl fitr a proposed CFD (depending on whether or not a public hearing is held for the CFD). When the CFD is established, an appraisal will also be required in connection with the offering of CPD bands for the CFD. Ideally, this requirement and the appraisal requirement under Section 32-18 could be satisfied by a single appraisal report. This may not be possible, however. due to timing consideration and/or the extent to which the two appraisal requirements call for inconsistent assumptions. Each appraisal will be prepared in compliance with applicable standards under the iJniform Standards of Professional Appraisal Practice of the Appraisal Foundation, and the Code of Professional I?thics and Standards of Professional Appraisal Practice of the Appraisal lnsti[ute. Subject to such standards, the specific assumptions for purposes of Section 32-18 and for bond marketing purposes will be determined by the Committee upon consultation with the appraiser and other special consultants retained by the Camty. The appraisals will be performed by the independent appraiser retained by the County. However, in appropriate cases where an appraiser has been retained by the construction lender for the proposed infrastructure improvements, the County may accept that appraiser's report for purposes of the appraisal requirement under Section 32-18. In any other cases, if an appraisal is 11 provided by an appraiser not retained by the County, the County may retain its own appraiser to perform an independent review of the appraisal. D. ABSORPTION STUDY Generally, for all new residential development, and in such other cases as may be appropriate, the County will require a market absorption study of the proposed development within the CPD. The market absorption study will provide the market absorption consultant's estimates. based on specified economic and demographic data, of the rates at which the linished products (lots or completed buildings or units) will be sold to final users and, generally, shall include an analysis of competitive prices for the product types proposed to be developed within the CFD. E. CONSTRUCTION FINANCING Except in unusual cases, CFD bond proceeds will not be used to fund the initial construction of the special improvements for a CFD. Instead, the Applicant will be required to construct the special improvements for a CPD with funds other than the CFD bonds, and the CFD bond proceeds will be used to acquire the special improvements upon completion. Therefore, the Applicant will need to obtain construction tinancing for the special improvements sutTicient to fund initial construction. F. STI2UCTUItAL CONSIDERATIONS FOR CFD BONll 1SSUF.S 1. Reserve Fund.} In order to enhance the credit quality of CPD bond issues, the County generally will require that each tixed rate bond issue be secured by a debt service reserve fund. Generally, each debt service reserve fund will be required to be funded (with cash or an acceptable reserve surety or other credit facility) in an amount equal to the lowest of the following: (a) 10% of the initial principal amount of the bonds of such issue; (b) maximum annual debt service on the bonds of such issue; or (c) l25% of the average annual debt service on the bonds of such issue. Any reserve surety or other credit facility funding such a reserve fund will generally he required to be issued or guaranteed by an entity, the long term unsecured obligations of which arc rated at least "A" by Moody's Investors Service or Standard & Poor's Ratings Service. The County may, on a case-by- case basis, also require a debt service reserve fund for variable rate issues, although the reserve requirement, if any, may differ for such issues. 2. Credit F.nhanccment. Where a substantial amount of the property within a CPD is undeveloped or is owned by a single owner, the County will generally require credit enhancement to increase the credit quality of a CPD bond issue, particularly where the value-to-lien ratio of a significant portion of the property Chapter 32 permits the issuance of either general obligation bonds or bonds secured solely by the special taxes on properties within a CFD. A debt service reserve fund will be considered only in cases involving bonds secured solely by special taxes. 12 in such CFD is less than three-to-one. The County may, in its discretion, require such credit enhancement in other situations where the County deems such an increase in credit quality to be necessary, appropriate or prudent. Such credit enhancement will usually be in the form of an irrevocable letter of credit issued or guaranteed by an entity, the long term unsecured obligations of which are rated at least "A" by Moody's Investors Service or Standard & Poor's Ratings Service. Any such credit facility will generally be required to he in an amount no[ Icss than two times the amount of annual special taxes levied on undeveloped property and will be required to remain in effect until such property is developed or the value thereof has otherwise been sufficiently increased. The actual requirements for any particular credit facility will be determined on a case- by-case basis to address deficiencies in land values and other relevant circumstances. 3. Capitalized Interest. Where appropriate, capitalized interest (i.e., interest during construction) will be funded from CFD bond proceeds. Capitalized interest can improve the credit quality of CPD bonds and result in lower borrowing costs. Flowever, the funding of capitalized interest also uses debt capacity that could otherwise be used to fund additional infrastructure improvements. The amount of capitalized interest to be lunded will be determined on a case by case basis. 4. Bond Structure. Under Chapter 32, the term to final maturity of CFD bonds may not exceed 40 years. The actual term to maturity of each issue will be determined on a case-by-case basis. CFD bonds will generally be structured such that, once principal amortization thereof has commenced, debt service thereon will he substantially level. however, the County may, in its discretion, on a case-by-case basis, allow such bonds to he structured such that debt service thereon escalates annually within speciticd limits. G. llISCLOSURE REQUIREMENTS FOR IIOND ISSUES 1. Initial Disclosure. Each owner of property within a CFD that has not reached its planned development stage and that will be responsible for a substantial portion (as determined by the County) of annual debt service on an issue of CFD bonds will be required to provide for inclusion in the ofticial statement or other offering materials distributed in connection with the offering and sale of such bonds such information as may he required for the County to comply with, satisfy any requirements of, or avoid any liability under, any applicable federal or state securities laws. Each such property owner will be required to verify in writing the accuracy and completeness the information so provided for inclusion in the official statement or other offering materials. 2. Cnntinuin~ Disclosure. Each owner of property within a CFD that has not reached its planned development stage and that will be responsible for a substantial portion (as determined by the County) of annual debt service on an issue of CFll bonds will he required to provide such information, on an ongoing basis, as may be required tier the underwriter of such bonds to satisfy the requirements imposed on 13 it pursuant to Rule 15c2-12 promulgated under the Securities Exchange Act of 1934. Cach such property owner will be required to provide a written comrni[ment to provide such information for so long as the property owner remains responsible for a substantial portion of the annual debt service on the CFD bonds. H. DISCLOSURES TO PROSPECTIVE PROPERTY PURCHASERS In order to ensure that prospective property purchasers are fully inl'otmed about their special tax obligations imposed under Chapter 32, the County will require that proper disclosure statements regarding such special tax obligations be made to prospective property purchasers. Such disclosure statements will be subject to approval by the Committee, and will include the following information: a statement that the property being purchased is subject to a special CFD tax which is in addition to regular CounTy property taxes; the maximum annual amount of the special tax, the number of years over which it will he levied and the permitted amount of annual increases; the prepayment provisions for the special tax; if the property owner fails to pay the special tax, the County may foreclose on the property to collect the delinquent special tax; and such other information regarding the CFD and special tax as may he required by the Committee. 1. C12ITERIA INTENDED AS GUiDEL[NES; WAIVERS AND AMENDMF,N'T I'he review procedures and criteria set forth herein reflect the administrative guidelines for the consideration of proposed CFDs by the County. 'fhe County may, in its discretion, require additional or different procedures and review criteria, enhanced security and higher standards in particular casts. The administrative guidelines set forth herein may be amended at any time and by the Committee and will be forwarded to the Council. 14 EXHH3IT A COUNTY OF HAWAII COMMUNITY FACILITIES DISTRICT FINANCING PROGRAM Application for Formation of Community Facilities District Instructions: The Ji~llowing Application will be required for consideration of a proposed Community Facilities District (a "CFD') under Chapter 32 ~f the Hawaii County Code ("Chapter 32"). Reference should be mode m Chapter 32 and the County's Administrative Guidelines for Evaluation of Props.+ed Community Fac•itities Districts (the "Administrative Guidelines") %r ,further it?farmulinn regarding matters to he addressed in this Application. Three c•ompleled and signed copies of lhi.+ Application, including attachrnenls. should he +uhmitted ut [he Director o/'Finance of the County of /lawaii. The Application will be reviewed by the County's Cl~'D Review Committee, which consists of the following oJfcials or their respective designees: Managing Direc•lor; Finance Director; Planning Director; Director of Puhlic Works; and Corporation Counsel. Attach additional sheets as necessary. Attachments should identify the .+pecilic sections of this Application to which they relate. I. BASIC INFORMATION REGARDING APPLICANT AND OTHER INTERESTED PARTIES A. The Applicants Name: Mailing Address: Contact Person: Title: Telephone: Facsimile: E-Mail: ' Pursuant to Chapter 32, the Applicant must own at least 25% of the land within the proposed CPU in order to petition the County Council to institute proceedings for formation of the CFD. If the Applicant does own the requisite percentage of land within [he proposed CFD, this requirement can be met on a combined basis by two or more co-Applicants. In such event, the Application must he submitted jointly by the co- Applicants. B. Contractor/Developer (if other than Applicant) Name: Mailing Address: Contact Person: 't'itle: Telephone: Facsimile: li-Mail: C. Legal Counsel Attorney/Firm: _ _ Mailing Address: Contact Person: Title: Cclephone: _ Facsimile: E-Mail: D. Other Consultants Name: Role: Mailing Address: Contact Person: 'title: 'telephone: Facsimile: h: Mail: II. PROPOSED CFD A. Location/Boundaries of Proposed CFD Provide a map and narrative description identifying the location and boundaries of the proposed CFD. ]f separate improvement areas within the CFD are proposed, this information should indicate the boundaries of each improvement area. 2 B. Overall Project Development Plans Describe the development plans for the property within the proposed CFD, including reasonable detail regarding: the proposed uses (residential, commercial etc.); types, numbers of units and acreage applicable to each use; development schedule; and other information reasonably necessary to understand the nature and scope of the development plans. C. Proposed Special Improvements Describe the proposed special improvements to be funded through the establishment of~ the proposed CFD. (See Administrative Guidelines: Part il, Section A.1 for a listing of eligible improvements.) Description should include a cost breakdown and construction timetable. D. Public Benefits to be Provided Describe the public benefits expected to be provided as a result of the funding of the proposed special improvements by the proposed CFD. (See Administrative Guidelines: Part li. Section A.2 for a discussion of required public benefits.) F,. Other Infrastructure Needs Identify all required infrastructure facilities that will serve the proposed CFD, but will not be funded by the CFD. Provide cost estimates and identify funding sources. F. Permits and Approvals Identify all pending and issued governmental permits and approvals required for the development of the property within the proposed CFD (including the overall project components, special improvements and other required infrastructure identified in B, C and P, above). In the case of pending permits and approvals, provide information regarding the status of the application and anticipated issuance date. G. Appraisals and Other Studies 1'rovidc copies of all appraisal(s) of the properly within the proposed CPD. If an additional appraisal will be required to obtain financing for construction within the proposed CFD, identify the appraiser and the anticipated issuance date for the appraisal. Provide copies of all other studies, including marketing studies and financial feasibility studies, prepared with respect to the proposed CFD and/or the development plan components identified in B above. 3 H. Other Information 1. Are there any other community facilities districts or special improvement districts that will overlap the boundaries of the proposed CFD? Yes No L~ If yes, please identify such other district(s) by name and number assigned by the County, and identify the overlapping boundaries on the map of the proposed CFD. 2. Is 100% of the property within the proposed CPD owned by the Applicant (or co- Applicants)? Yes No If no, identify all other property owners, show their properties on the map of the proposed CFD, and provide information about their level of support for the proposed CFD. 3. [s the property within the proposed CFD current on property taxes? Yes Nn [J If no, provide further information. III. PROPOSED FINANCING AKRANGF.MENTS A. Construction Financing for Special Improvements As indicated in the Administrative Guidelines (see Part Il, Section E therein), applicants will generally be required to obtain construction financing for the CFD special improvements subject to repayment from CFD bond proceeds upon completion of the improvements. Provide information regarding the anticipated source and amount of construction financing. if available, provide a copy of the signed loan commitment letter. If application for financing is pending, identify the financing source and provide information regarding the status of the loan application and anticipated commitment daft. B. Other Financing Commitments Provide information regarding the anticipated sources and amounts of financing to be obtained for project components and infrastructure requirements (other than special improvements to be funded by the proposed CFD) identified in 11.B and ILE above. If available, provide copies of signed financing commitments. If application for financing is pending, identity the financing source and provide information regarding the status of the application and anticipated commitment date. C. Project Financing Pro Formes Provide project lnancing pro formes, including projected timelines, reflecting the amounts and sources of financing identified in A and B above. 4 IV. ADDITIONAL INFORMATION A. Identify up to three banking references, including the name and address of the banking institution, and the name and contact information for the bank representative to be contacted. E3. Provide recent financial statements of the Applicant and/or other information demonstrating past financial performance. C. Has the Applicant been in bankruptcy? Yes No If yes, provide further information. D. Is the Applicant current on all tax obligations? Yes [ ] No If no, provide further information. E. List previous experience with developments of similar type andlor size, including location, size, project mix, year of completion and Applicant's involvement. f. Were any of the listed prior developments funded by CPD bonds'? Yes No If yes, (a) identify the bond-financed developments on the list, (b) confirm whether the bonds have been in default (whether or not cured), and (c) confirm whether the Applicant has been in default (whether or not cured) of any continuing disclosure obligations relating to the bonds. Submitted by: Applicant By: - Name: Title: Date: 5 EXHIBIT B COUNTY OF HAWAII PROPOSED COMMUNITY FACILITIES DISTRICT DEPOSIT AND REIMBURSEMENT AGREEMENT THIS AGREEMENT is made and entered into this 20_, by and between the County of Hawaii (the "County"), and a (the "Proponent"), which owns the property within the boundaries of a proposed community facilities district. RECITALS A. The Proponent owns the real property that is included within the proposed boundaries of a proposed community facilities district (the "Proposed District") for the development known as (the "Development Project"). The Proposed District is proposed to be established pursuant to the provisions of Chapter 32 of the Hawaii County Code, as amended ("Chapter 32") far financing the acquisition, construction and installation of "special improvements" (as defined in Chapter 32) (the "Special Improvements") which the Proponent is required to provide in connection with the Development Project. B. The Proponent has agreed to advance funds to allow the County to pay all costs and expenses of the County related to proceedings heretofore and hereafter conducted for the establishment of the Proposed District and the issuance of special tax bonds for the Proposed District pursuant to Chapter 32 (the "Proposed Bonds"). C. The parties hereto wish to enter into an agreement to define the terms and conditions under which the funds will be advanced and subsequently reimbursed. AGREEMENT In consideration of the mutual promises herein contained, the parties hereto do hereby agree as follows: Section 1. Proponent's Deposit• Use of Deposited Funds. (a) The Proponent agrees to deposit initially the sum of [$75,000] (together with additional deposits hereunder, the "Deposit") with the County to pay one hundred percent (100%) of the costs and expenses of the County relating to the proceedings for the formation of the Proposed District and the issuance of the Proposed Bonds (collectively, the "County Costs"), including without limitation: (i) the fees and expenses of the County's special tax consultant, financial advisor, appraiser, absorption consultant, legal counsel (including bond counsel and special tax counsel), consulting engineers and other professional consultants and advisors (individually a "Consultant" and collectively the "Consultants"); (ii) publication costs and other out-of-pocket expenses; (iii) a reasonable charge (if applicable) for County staff time; and (iv) other County staff and administrative costs. (b) The County may draw upon the Deposit to pay the County Costs from time to time. The County shall not be obligated to advance any of its funds for purposes of forming the Proposed District or the issuance and sale of the Proposed Bonds. (c) In the event that the balance of the Deposit falls below [$20,000], or is otherwise insufficient to pay any County Costs due or coming due, the Proponent shall deposit additional monies with the County in the amount necessary to restore the balance of the Deposit to [$75,000] and/or pay the County Costs due or coming due. The Proponent shall deposit such additional monies within ten (10) calendar days of the receipt of written notification from the County of the need for such additional funds. Without limiting any other right of the County to discontinue proceedings relating to the Proposed District or the Proposed Bonds, it is expressly understood and agreed that the County shall have the right to suspend or terminate all proceedings for the establishment of the Proposed District and/or the issuance of the Proposed Bonds in the event that the Proponent fails to deposit such additional monies with the County within said ten (10) calendar days. (d) The County shall provide monthly statements to the Proponent showing the amount disbursed from the Deposit and the remaining balance thereof. The County agrees to keep such records as are reasonably necessary to show the amount of monies disbursed for payment of County Costs. The County shall make such records available to the Proponent upon request. Section 2. Consultants Comaensation, and Method of Payment. The County shall retain the Consultants upon such terms as it deems appropriate in its sole discretion. The County shall have the sole discretion to select the persons or firms to be retained as Consultants, and to evaluate their performance and the reasonableness of their compensation. Compensation shall be paid to each Consultant for work performed as specified in their respective contracts with the County. Upon request, the County shall provide the Proponent with a summary of fees paid to the Consultants on a bi-monthly basis. Deposit and Reimbursement Agreement Page 2 of 6 Section 3. Reimbursement to Proponent. If the Proposed District is established and the Proposed Bonds are issued, the Proponent shall be entitled to be reimbursed for Deposit, without interest, from the proceeds of the Proposed Bonds. In the event that the net proceeds of the Proposed Bonds, after deducting the costs of issuance from the proceeds received by the County, are insufficient to fully fund both (i) reimbursement of the Deposit and (ii) financing of the Special Improvements, the Proponent shall advise the County in writing whether it wishes to receive reimbursement of the Deposit or to waive its entitlement to such reimbursement. In the event that the Proposed Bonds are issued in multiple series, waiver of reimbursement with respect to a given series shall not constitute a waiver of reimbursement from the proceeds of any subsequent series. If the proceedings are abandoned for any reason prior to the sale and issuance of the Proposed Bonds, the obligation of the County to reimburse the Proponent for the Deposit or any portion thereof shall be strictly limited to that portion of the Deposit not yet expended, and the provisions of subsection (c) of Section 5 hereof shall govern the application of such unexpended portion of the Deposit. Section 4. Ownershia of Documents. All plans, specifications, reports, appraisals and other documentation prepared as part of the proceedings to establish the Proposed District and to sell and issue the Proposed Bonds shall become the property of the County, regardless of whether the Proposed District is formed and/or the Proposed Bonds are sold and issued; provided, however, that the Proponent shall be entitled to use the information contained in such documents. Section 5. No Obligation to form a Community Facilities District: Abandonment of Proceedings. (a) The County expressly reserves the right to abandon the proceedings for the establishment of the Proposed District and/or issuance of the Proposed Bonds for any reason at any time prior to the completion thereof. Without limiting the generality of the foregoing, the Proponent expressly acknowledges that the decision of the County to form a community facilities district and/or to issue special tax bonds under Chapter 32 is an exercise of the legislative authority of the Council of the County, and that the County may not enter into a contract or obligate the Council to exercise its legislative discretion in a particular manner. This Agreement does not, therefore, in any way create a contractual, legal or equitable obligation of or commitment by the County to approve the formation of the Proposed District or to sell the Proposed Bonds to finance the Project. (b) Should the Proponent elect to abandon the proceedings, the Proponent shall provide written notification of such election to the County and request the County to terminate all consulting agreements and use reasonable efforts to minimize any and all additional County Costs. Deposit and Reimbursement Agreement Page 3 of 6 (c) If proceedings to form the Proposed District and/or issue the Proposed Bonds are not completed and are abandoned for any reason at any time, there will be no obligation on the part of the County to reimburse the Proponent for any monies previously advanced pursuant to this Agreement. In such event, the County, however, agrees to return to the Proponent such portion of the remaining balance of the Deposit, without interest, as the County determines to be in excess of the amount necessary to pay any outstanding County Costs which the County is obligated to pay, which determination shalt be made as soon as reasonably practicable. If, for any reason, the remaining balance of the Deposit is not sufficient to pay all outstanding County Costs, the Proponent shall deposit such additional amounts as are required to pay all such County Costs. (d) It is hereby expressly acknowledged and agreed that this Agreement is not a debt or liability of the County, and that the County shall not be obligated to advance any of its funds for purposes of forming the Proposed District or issuing the Proposed Bonds. Section 6. Authority to Execute Aareement. The County and the Proponent each represents that it has the authority to execute, deliver and perform its obligations under the terms of this Agreement and that the individual(s) signing this Agreement on its behalf have fu11 right and authority to bind said party to this Agreement. Section 7. Desianated Representatives; Notices. The following individuals are hereby designated as representatives for the County and the Proponent, respectively, to act as liaison between the parties: County: Director of Finance (or his/her designee) County of Hawaii 25 Aupuni Street, Rm. 118 Hilo, Hawaii 96720 Proponent: [Contact Person/Address] Any written notice, statement, demand, consent, approval, authorization, offer, designation, request or other communication to be given hereunder shall be given to the party entitled thereto at its address set forth above, or at such other address as such party may provide to the other party in writing from time to time. Each such notice, statement, demand, consent, approval, authorization, offer, designation, request or other communication hereunder shall be delivered to the Deposit and Reimbursement Agreement Page 4 of 6 party to whom it is addressed (a) if personally served or delivered, upon delivery, (b) if given by electronic communication, whether telex, telegram, electronic mail or telecopy upon sender's receipt of an appropriate answerback or other written acknowledgment, (c) if given by registered or certified mail, return receipt 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 8. Jurisdiction and Venue. Each of the County and the Proponent (a) agrees that any suit action or other legal proceeding arising out of or relating to this Agreement shall be brought in state court in the County of Hawaii, (b) consents to the jurisdiction of each such court in any suit, action or proceeding, and (c) waives any objection that it may have to the laying of venue or any suit action or proceeding in any of such courts and any claim that any such suit, action or proceeding has been brought in an inconvenient forum. Section 9. Amendments. This Agreement may be amended by an instrument in writing executed and delivered by the parties hereto. Section 10. Waivers. No waiver of, or consent with respect to, any provision of this Agreement by a party hereto shall in any event be effective unless the same shall be in writing and signed by such party, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given. Section 11. Indemnification. The Proponent hereby indemnifies, and agrees that it shall defend and hold harmless, the County and its officials, employees, contractors and agents, from and against any and all actions, claims, damages, losses or expenses of any kind whatsoever arising out of or relating to any acts or omissions on the part of the Proponent or any of its officers, employees, contractors or agents with respect to the Proposed District or the Proposed Bonds. Section 12. Governing Law. This Agreement has been executed in and shall be governed by the laws of the State of Hawaii. Section 13. Construction. The parties to this Agreement and their counsel have reviewed and revised this Agreement, and the normal rule of construction to the effect that any ambiguities in an agreement are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement. Section 14. Severability. If a provision of this Agreement is found to be void, illegal or unenforceable, then any such provision shall be deemed stricken Deposit and Reimbursement Agreement Page 5 of 6 and the remaining provisions hereof shall, nevertheless, remain in full force and effect. Section 15. Entire Agreement. This Agreement shall constitute the entire Agreement between the parties. Any amounts to or clarification necessary to this Agreement shall be in writing and acknowledged by all parties to the Agreement. Section 16. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute an original, and all of which together shall be considered one and the same instrument. IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date and year first above written. COUNTY OF HAWAII By: Name: Title: [PROPONENT] By: Name: Title: Deposit and Reimbursement Agreement Page 6 of 6