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99-0913_CAPISTRANO UNIFIED SCHOOL DISTRICT_Joint Community Facilities Agreement9 JOINT COMMUNITY FACILITIES AGREEMENT among CAPISTRANO UNIFIED SCHOOL DISTRICT and CITY OF SAN JUAN CAPISTRANO relating to COMMUNITY FACILITIES DISTRICT NO. 98-I OF THE CAPISTRANO UNIFIED SCHOOL DISTRICT (PACIFIC POINT) DIGIC1014kir717 [MVO 111E111D➢.F7 0 0 JOINT COMMUNITY FACILITIES AGREEMENT THIS JOINT COMMUNITY FACI ITIES AGREEMENT (the "Agreement") is entered into effective as of the day o 1999, by and among the CAPISTRANO UNIFIED SCHOOL DISTRICT, a public enti (the "School District"), and the CITY OF SAN JUAN CAPISTRANO, a municipal corporation (the "City"), and SJD PARTNERS, LTD., a California Limited Partnership (the "Company"), and relates to the proposed formation of COMMUNITY FACILITIES DISTRICT NO. 98-1 OF THE CAPISTRANO UNIFIED SCHOOL DISTRICT (PACIFIC POINT) (the "District"). RECITALS: A. The Company is the owner of all of the land within Assessor's Parcel Numbers listed on Exhibit "A" hereto in the incorporated territory of the City of San Juan Capistrano, State of California (the "Property") and which is proposed to constitute the land within the boundaries of the District. Such boundaries are shown on the map included in Exhibit "A" attached hereto, which is incorporated by reference herein. B. The Company is the developer of the Property and has obtained the necessary development approvals to construct approximately 325-425 residential units, as well as approximately 23 acres of commercial improvements, on the Property and to provide the required infrastructure for such units and improvements, including schools to be owned and operated by the School District (the "School Facilities") and certain roadway and storm drain improvements to be owned and operated by the City which are described in Exhibit B hereto and incorporated by reference herein (the "City Facilities"). The City Facilities and the School Facilities are sometimes collectively referred to herein as the "Facilities". Additionally, the Company has requested that the School District enter into a joint community facilities agreement with the Water District with respect to certain water facilities (collectively, the "Water District Facilities") to be financed by the District. C. It is expected that the cost of the School Facilities will exceed the cost of the City Facilities and Water District Facilities, therefore, the School District is permitted to have primary responsibility for the formation and administration of the District. D. The Company has requested the Board of Trustees of the School District (the "Board of Trustees") to form and establish the District pursuant to the provisions of the Mello -Roos Community Facilities Act of 1982, Chapter 2.5 (commencing with Section 53311) of Part 1 of Division 2 of Title 5 of the California Government Code (the "Act"). E. The provision of the School Facilities and the City Facilities is necessitated by the development of the land within the District and the parties hereto find and determine that the residents of the City, the School District and the District will be benefited by the construction and/or acquisition of the City Facilities and the School Facilities and that this Agreement is beneficial to the interests of such residents. F. The parties hereto intend to have the District assist in financing the City Facilities by disbursing District bond construction proceeds in an amount which is estimated at, and shall not 2 D0CS0C\655160v2\22508.0025 0 0 exceed, $2,200,000 (the "City Facilities Amount") at the written request to the District of the City to finance the construction and/or acquisition of the City Facilities. G. The City is authorized by Section 53313.5 of the Act to assist in the financing of the acquisition and/or construction of the City Facilities and the School District is authorized to assist in the financing of the School Facilities. This Agreement constitutes a joint community facilities agreement, within the meaning of Section 53316.2 of the Act, by and among the City, the Company and the School District, pursuant to which the District when formed will be authorized to finance the construction and/or acquisition of the City Facilities in the not to exceed amount of $2,200,000 and to finance the School Facilities in the approximate amount of $7,000,000. As authorized by Section 53316.6 of the Act, responsibility for constructing, providing and operating the School Facilities is delegated to the School District and responsibility for constructing, providing for and operating the City Facilities is delegated to the City to the extent set forth herein. H. Pursuant to Government Code Section 53314.9, the Board of Trustees of the School District is authorized to accept advances of funds from any source, including, but not limited to, private persons or private entities, and may provide, by resolution, for the use of those funds for any authorized purposes, including, but not limited to, paying any costs incurred by the local agency in creating a district. The legislative body may also enter into an agreement, by resolution, with the person or entity advancing the funds, to repay all or a portion of the funds advanced provided that certain conditions are met. The conditions to be satisfied require that (1) the proposal to repay the funds must be included in the resolution of intention for the proposed district and in the resolution of formation for the proposed district and (2) that any proposed special tax is approved by the qualified electors of the district pursuant to the Act and that if not approved any funds which have not been committed for any authorized purpose by the time of the election must be returned to the person or entity advancing funds. I. The parties hereto intend to have the District assist in financing the City Facilities by transferring to the City a portion of District Bond construction proceeds, in accordance with the terms of this Agreement and pursuant to the Act. Under the terms set forth herein, the District will transfer to the City up to $2,200,000 in District Bond proceeds (the "District Contribution"). AGREEMENT NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, the parties hereto agree as follows: Recitals. Each of the above recitals is incorporated herein and is true and correct. 2. Proposed Formation of District. At the request of the Company, the School District will undertake to analyze the appropriateness of forming a community facilities district to finance the Facilities. The School District will retain, at the Company's expense, the necessary consultants to analyze the proposed formation of the District, including an engineer, special tax consultant, bond counsel, appraiser and other consultants deemed necessary by the School District. 3. Sale of Bonds and Use of Proceeds. In the event the District is formed, the Board of Trustees of the School District acting as the legislative body of the District may, in its sole discretion, finance the design, construction and acquisition of the School Facilities and the City Facilities by issuing bonds (the "Bonds"). If any Bond proceeds are escrowed, after payment of the costs of D0CS0C\655160v2\22508.0025 0 0 issuing the Bonds, there shall first be reserved from the Bond construction proceeds $7,000,000 to finance the School Facilities. The District anticipates that proceeds from the sale of District Bonds shall be available for the City Facilities substantially in accordance with this Section 3, however, release of Bond proceeds to the City for City Facilities may be subject to escrow release tests to be established in the bond documents which the District will hereafter enter into with respect to the Bonds (the "Bond Documents"), and the terms of such escrow release test shall be as the District shall determine, in its sole discretion, to be reasonably appropriate in order to comply with the School District's Statement of Local Goals and Policies and municipal bond industry standards for land -secured financings. The District shall maintain records relating to the disbursements of proceeds of the sale of the District Bonds. The Company acknowledges that the acquisition of the City Facilities, including the amount and timing for the delivery of all funding, including the District Contribution, required for the City Facilities shall be in all respects subject to the sole discretion and approval of the City and the School District, as applicable. In no event will an act, or an omission or failure to act, by the City or the District with respect to the disbursement or nondisbursement of the District Contribution or by the District with respect to the provision of any other funding for the School Facilities or the City Facilities subject the District, the School District or the City to pecuniary liability hereunder. The Bonds shall be issued only if in its sole discretion the Board of Trustees determines that all requirements of state and federal law and all School District policies and any applicable City policies have been satisfied or in the case of the policies waived by the School District or the City, as applicable. In no event shall the Company have a right to compel the issuance of the Bonds. 4. Disbursements. (a) District Bond proceeds designated for the City Facilities shall be held, together with all District Bond proceeds designated for the acquisition and/or construction of School Facilities, by the fiscal agent for the District (the "Fiscal Agent") in a special fund (the "Acquisition and Construction Fund") which shall be invested by the Fiscal Agent and earn and accumulate its own interest. The District shall designate in the Acquisition and Construction Fund an amount equal to the District Contribution as funds available solely for City Facilities, and all moneys in the Acquisition and Construction Fund designated for the City Facilities shall at all times be available for the City Facilities except to the extent the School District determines interest earnings must be rebated to the United States in accordance with the Internal Revenue Code of 1986, as amended. (b) The Fiscal Agent shall make disbursements from the Acquisition and Construction Fund in accordance with the terms of this Agreement and neither the School District nor the District shall be responsible to the City for costs incurred by the City as a result of withheld or delayed payments. (c) The City agrees that prior to requesting payment from the District it shall review and approve all costs included in its request and (a) will have already paid such costs of City Facilities from its own funds or shall have prepared a check for disbursement which will be mailed or hand delivered within 48 hours of receipt of District funds or (b) will have already encumbered the funds requested and will trace and remit to the District all earnings, if any, by the City in excess of the yield on the applicable District Bonds accruing from the investment of the District Bond proceeds requested, from the date of receipt of such District Bond proceeds by the City to the date of 4 DOCS00655160v2\22508.0025 0 0 expenditure by the City of such District Bond proceeds for actual legitimate capital costs of the City Facilities. Such remittance, if any, shall occur on the earlier of the date of expenditure of such District Bond proceeds or each anniversary date of the transfer of such District Bond proceeds from the District to the City. The City agrees that in processing the above disbursements it will comply with all legal requirements for the expenditure of bond proceeds under the Act, as amended, and the Internal Revenue Code of 1986 and any amendments thereto. (d) The City agrees to maintain adequate internal controls over its payment function and to maintain accounting records in accordance with generally accepted accounting procedures. The City will, upon request, provide to the District its annual financial report certified by an independent Certified Public Accountant for purposes of calculating the District's arbitrage rebate obligations. The District shall have the right to conduct its own audit of the City's records at reasonable times and during normal business hours. (e) The City shall submit a request for payment to the Fiscal Agent which shall be in the form attached hereto as Exhibit "C", which shall be signed by its City Manager or written designee and which shall be for the exact amount paid or encumbered or to be disbursed as provided in paragraph (d) above by the City for City Facilities costs under paragraph (c) above, which costs shall in no event exceed the District Contribution of $2,200,000. Upon receipt of an approved payment request completed in accordance with the terms of this Agreement, the Fiscal Agent shall wire transfer such portion of requested funds as are then available for release pursuant to the Bond Documents to the City's bank account, as directed by the City. 5. Construction. The City will complete the plans and specifications for construction of the City Facilities (hereinafter the "Plans and Specifications") in a form and substance which is satisfactory to the City. The Company will design and construct the City Facilities in conformance with the City's Plans and Specifications. The Company acknowledges that none of the City, the School District nor the District has any obligation to pay any amount in excess of the District Contribution for the City Facilities, regardless of the cost to construct the City Facilities. The Company agrees hereby that it will be solely responsible to pay any and all City Facilities costs in excess of the District Contribution. 6. Ownership of Facilities. Notwithstanding the fact that some or all of the City Facilities may be constructed in dedicated street rights-of-way or on property which has been or will be dedicated to the City of San Juan Capistrano or any other entity, the City Facilities shall be and remain the property of the City. 7. Indemnification. The School District shall assume the defense of, indemnify and save harmless, the City, its officers, employees and agents, and each and every one of them, from and against all actions, damages, claims, losses or expenses of every type and description to which they may be subjected or put, by reason of, or resulting from, this Agreement, and the design, engineering and construction of the School Facilities. No provision of this Agreement shall in any way limit the extent of the School District's responsibility for payment of damages resulting from the operations of the School District and its contractors; provided, however, that the School District shall not be required to indemnify any person or entity as to damages resulting from negligence or willful misconduct of such person or entity or their agents or employees. The City shall assume the defense of, indemnify and save harmless, the School District, its officers, employees and agents, and each and every one of them, from and against all actions, damages, claims, losses or expenses of every type and description to which they may be subjected or put, by reason of, or resulting from, this 5 DOCSOC\6551600\22508.0025 0 0 Agreement, and the design, engineering and construction of the City Facilities. No provision of this Agreement shall in any way limit the extent of the City's responsibility for payment of damages resulting from the operations of the City and its contractors; provided, however, that the City shall not be required to indemnify any person or entity as to damages resulting from negligence or willful misconduct of such person or entity or their agents or employees. 8. Disclosure. The Company shall cooperate with the District and the School District in complying with the requirements of Rule 15cl2-12 of the Securities and Exchange Commission in connection with the issuance and sale of the Bonds. The Company shall provide information to the District and the School District regarding its operations and financial condition, including, if available, an audited financial statement for its most recently completed fiscal year, for inclusion in the preliminary official statement and the final official statement for the Bonds. The Company acknowledges that, due to the extent of its initial property ownership in the District, it will be an "obligated person" for purposes of compliance with Rule 15cl2-12(b)(5) of the Securities and Exchange Commission and that it will therefore be necessary that Company enter into a continuing disclosure undertaking that so long as it remains an obligated person it will annually, at the time specified in such undertaking, provide information to the District and the School District regarding the Company's financial condition, including, if available, audited financial statements, to be included in the annual reports which the District will file with the Nationally Recognized Municipal Securities Repositories which are identified by the Securities and Exchange Commission and any state information depository that may be designated for the State of California, as required by that rule. The Company further acknowledges that it will be an obligated person pursuant to such rule as long as it owns property within the District that is responsible for the payment of annual special tax installments which represent 10 percent or more of the annual debt service on the outstanding Bonds. 9. Allocation of Special Taxes. Upon sale and delivery of the Bonds, or such earlier date as the District, in its sole discretion, determines appropriate, the Board of Trustees, as the legislative body of the District, shall annually levy a special tax as provided for in the formation proceedings of the District. The entire amount of any special tax levied by the District to repay the Bonds, or to fund other obligations, shall be allocated to the District. 10. Amendment. This Agreement may be amended at any time but only in writing signed by each party hereto. 11. Entire Agreement. This Agreement contains the entire agreement between the parties with respect to the matters provided for herein and supersedes all prior agreements and negotiations between the parties with respect to the subject matter of this Agreement. 12. Notices. Any notice, payment or instrument required or permitted by this Agreement to be given or delivered to either party shall be deemed to have been received when personally delivered or seventy-two hours following deposit of the same in any United States Post Office in California, registered or certified, postage prepaid, addressed as follows: P D0CS0C\655160v2\22508.0025 0 0 School District/District: Capistrano Unified School District 32972 Calle Perfecto San Juan Capistrano, California 92675 Attn: Assistant Superintendent, Facilities Planning City of San Juan Capistrano City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, California 92675 Attn: City Manager Company: SJD Partners, Ltd. 5109 E. La Palma, Suite D Anaheim, California 92807 Each party may change its address for delivery of notice by delivering written notice of such change of address to the other parties hereto. 13. Exhibits. All exhibits attached hereto are incorporated into this Agreement by reference. 14. Severability. If any part of this Agreement is held to be illegal or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible. 15. Govemina Law. This Agreement and any dispute arising hereunder shall be governed by and interpreted in accordance with the laws of the State of California. 16. Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other parties hereto, or the failure by a party to exercise its rights upon the default of another party, shall not constitute a waiver of such party's right to insist and demand strict compliance by such other parties with the terms of this Agreement thereafter. 17. No Third Party Beneficiaries. No person or entity shall be deemed to be a third party beneficiary hereof, and nothing in this Agreement (either express or implied) is intended to confer upon any person or entity, other than the City, the School District, the District and the Company (and their respective successors and assigns), any rights, remedies, obligations or liabilities under or by reason of this Agreement. 18. Singular and Plural; Gender. As used herein, the singular of any word includes the plural, and terms in the masculine gender shall include the feminine. 19. Countemarts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute but one instrument. DOCS0065516MU2508.0025 IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year written below. Date: September 13 , 1999 CAPISTRANO UNIFIED SCHOOL DISTRICT President of the Board of Trustee ATTEST: By: Jerk of the Board of Trustees of the Capistrano Unified School District CITY OF JUA CAPISTRANO By: Its: City Manager ATTEST: City Clerk S-1 DOCSOC\655160x2\22508.0025 0 0 SJD PARTNERS, LTD., a California Limited Partnership By: SJD Development Corp., a California Corporation, General Partner By: IM DOCS006551640\22508.0025 Todd Kurtin, Chief Financial Officer & Secretary EXHIBIT A DESCRIPTION OF PROPERTY The real property to be included within Community Facilities District No. 98-1 of the Capistrano Unified School District (Pacific Point): 666-301-01 666-301-09 675-081-04 675-081-10 675-081-14 675-361-01 675-361-04 675-361-05 A-1 DOCS00655160v2\22508.0025