04-0601_CAPISTRANO UNIFIED SCHOOL DISTRICT_G3a_Agenda Report6/1112004
G 3a
AGENDA REPORT
TO: Dave Adams, City Manager
FROM: Cindy Russell, Administrative Services Director
SUBJECT: Consideration of Amended and Restated Joint Community Facilities
Agreement (CFD 98-1A) (Capistrano Unified School District)
(SJD Partners, Ltd.)
RECOMMENDATION:
By Motion, adopt the Resolution approving the Amended and Restated Joint
Community Facilities Agreement (CFD 98-1 A) among the City of San Juan Capistrano,
Capistrano Unified School District and SJC Partners, Ltd. relating to the Pacifica San
Juan Planned Development
SITUATION
Summary and Recommendation:
On April 6, 2004, the City Council approved, in concept, an amendment to the Joint
Community Facilities Agreement (JCFA) for Community Facilities District (CFD) 98-1
relating to the Pacifica San Juan Planned Development. The JCFA was originally
approved by the City and Capistrano Valley Water District on September 13, 1999
The Pacifica San Juan Developer, SJD Partners (Developer), in conjunction with the
Capistrano Unified School District (CUSD) requested and the City Council approved, in
concept, an amendment to the JCFA to reflect the increased values on this project. The
project is now able to generate approximately $27.6 million in funds with a maximum
average tax rate of 1.71 % as opposed to $11.8 million with a maximum average tax rate
of 1.7%. Additionally, the CUSD, City, and Developer have agreed to share equally in
the proceeds of the amended CFD.
This increase provides additional funds for the CUSD for a total of approximately $13.8
million. The City will receive $10.1 million in developer required fees up front rather
than over time as each area is built; funding for fair share contributions ($79,401); and
$850,000 in new funds available for facilities not required as part of this development
that provide a benefit to the community.
Since April, the CUSD has been notified that the Transportation Corridor Agency (TCA)
does not wish to participate in the JCFA and therefore the fees proposed to be paid to
the TCA cannot be funded by the CFD. The conceptual amendment approved by City
Council provided for City fees, contributions and community -wide facilities to be funded
Agenda Report
Paqe 2
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June 1, 2004
first as outlined in Attachment 1 and any remaining proceeds to be available for
"A" street grading. The value of fees that would have been paid to the TCA has now
been allocated to "A" street grading (See Attachment 1: Developer Proposal —
Amended).
Staff recommends the City Council adopt the Resolution approving the Amended and
Restated Joint Community Facilities Agreement (CFD 98-1) among the City of San Juan
Capistrano, Capistrano Unified School District and SJC Partners, Ltd. relating to the
Pacifica San Juan Planned Development.
Background:
The approved CFD provided for $11,765,000 in improvement dollars based on a
maximum tax rate of 1.7% total for the homes in this development. Of the $11.8 million,
$6.9 million was identified for CUSD improvements and the balance of $4.8 million was
identified for City and Water improvements required as part of the Pacifica San Juan
development. The $6.9 million for the CUSD was earmarked for the Kinoshita
Elementary School and a future school site.
Due to rising property values over the past five years, the Pacifica San Juan
development will generate significantly more improvement dollars based on the 1.7°x6
tax rate. The CUSD financial consultants, David Taussig & Associates (Taussig), have
calculated the new amount available from the CFD to be approximately $24.6 million.
However, this calculation does not consider the value of "view premiums". View
premiums are the additional values assigned to those lots within the development with
enhanced views. Pacifica San Juan has projected that the amount available from the
CFD to be approximately $27.6 million when including the view premiums. Taussig has
evaluated the view premium information submitted by Pacific San Juan and places a
somewhat lower value on these premiums. Based on the 1.7% tax rate, Taussig
estimates that $27.08 million in proceeds can conservatively be supported by the
property values, including the view premiums. Taussig projects that the average total
tax rate would need to be set at 1.712% to generate the $27.6 million in proceeds rather
than $27.08 million. On April 6, 2004, the City Council approved, in concept, amending
the JCFA to reflect total proceeds of $27.8 million with a maximum average tax rate of
1.712% (See Attachment 1— Developer Proposal).
Since the JCFA is being amended, the City has the opportunity to add other community-
wide facilities. These improvements could include access to the Northwest Open
Space, unfunded traffic improvements, a new City Hall, recreational facilities, or other
necessary facilities. The CUSD and Developer were supportive of a portion of the new
funds to be allocated to other community -wide facilities. In discussions with the CUSD,
their portion of the CFD will be providing approximately $1 million toward District -wide
facilities. Through negotiations with the Developer, City staff arrived at a figure of
$850,000 for the City to be allocated toward community -wide facilities. This amount
was approved by City Council on April 6, 2004.
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Agenda Report
Page 3 June 1, 2004
COMMISSION/BOARD REVIEW AND RECOMMENDATIONS:
Not Applicable
FINANCIAL CONSIDERATIONS:
The amendment to the JCFA provides an
funding source for community -wide facilities.
not lose any existing funds.
NOTIFICATION:
opportunity for the City to generate a new
If this funding is not approved, the City will
Mr. Ron Freeman, SJD Partners, Ltd.*
Mr. Brad Gates, DTS LLC*
Denise Hering, Stradling, Yocca, Carlson & Rauth*
Dave Doomey, Capistrano Unified School District*
* Agenda Report included
ALTERNATE ACTIONS:
By Motion, adopt the Resolution approving the Amended and Restated Joint
Community Facilities Agreement (CFD 98-1A) among the City of San Juan
Capistrano, Capistrano Unified School District and SJC Partners, Ltd. relating to the
Pacifica San Juan Planned Development.
2. Do not adopt the resolution and request additional information from staff.
RECOMMENDATION:
By Motion, adopt the Resolution approving the Amended and Restated Joint
Community Facilities Agreement (CFD 98-1A) among the City of San Juan Capistrano,
Capistrano Unified School District and SJC Partners, Ltd. relating to the Pacifica San
Juan Planned Development.
Respectfully submitted,
Cindy�l
Administrative Service Director
Attachment:
1. Allocation of Community Facilities District Funds
2. Resolution 04 -06 -01 -XX
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RESOLUTION NO. 04-06-01-0 5
E
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN
CAPISTRANO, CALIFORNIA, APPROVING AN AMENDED AND
RESTATED JOINT COMMUNITY FACILITIES AGREEMENT AMONG THE
CITY OF SAN JUAN CAPISTRANO, THE CAPISTRANO UNIFIED SCHOOL
DISTRICT AND SJD PARTNERS, LTD. RELATING TO THE PACIFICA SAN
JUAN PLANNED DEVELOPMENT
WHEREAS, the Board of Trustees of the Capistrano Unified School District
(the "School District') has heretofore adopted, on April 19, 2004, a resolution of
consideration ("Resolution No. 0304-77") stating its intention to amend the special tax rates,
boundaries and facilities (collectively, the "Amendments") of Community Facilities District
No. 98-1 of the School District (Pacific Pointe), now Community Facilities District No. 98-1 A
("CFD No. 98-1A") of the Capistrano Unified School District (Pacifica San Juan), all
pursuant to the Mello -Roos Community Facilities Act of 1982, as amended (the "Act") and
to approve an Amended and Restated Joint Community Facilities Agreement among SJD
Partners, Ltd. (the "Property Owner"), the City of San Juan Capistrano (the "City") and the
School District (the "City JCFA"); and,
WHEREAS, Resolution No. 0304-77 also stated the School District's intention to
incur bonded indebtedness in an aggregate principal amount not to exceed $45,000,000
within CFD No. 98-1A for the purpose of financing certain infrastructure improvements
required in connection with the development of land therein, including, among other
facilities, certain City facilities (collectively, the "City Facilities") as more particularly
described in the form of City JCFA attached hereto as Exhibit A and incorporated herein by
this reference; and,
WHEREAS, the City is a public agency authorized by law to own and operate the
City Facilities; and,
WHEREAS, pursuant to Section 53316.2 of the Act, a community facilities district is
authorized to finance facilities to be owned or operated by an entity other than the agency
that created the community facilities district only pursuant to a joint community facilities
agreement or joint exercise of powers agreement; and,
WHEREAS, the School District, the Property Owner and the City (acting in the first
instance for itself and in the second on behalf of the Capistrano Valley Water District, then
a subsidiary of the City) heretofore entered into two certain Joint Community Facilities
Agreements, each dated September 13, 1999 with respect to CFD No. 98-1 and now desire
to enter into an amended and restated joint community facilities agreement in the form
attached hereto as Exhibit A in order to reflect the Amendments, and the consolidation of
the City and the Capistrano Valley Water District, in compliance with Section 53316.2 of the
Act; and,
1 06-01-2004
WHEREAS, the City has determined that the construction of the City Facilities and
the conveyance of the City Facilities to the City in accordance with the City JCFA will be
beneficial to the residents within the City.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of San
Juan Capistrano does hereby determine as follows:
Section 1. The above recitals are true and correct and are incorporated herein as
if fully set forth in the body of this Resolution.
Section 2. Pursuant to Section 53316.2 of the Act, the City Council hereby
approves the execution and delivery by the City of the City JCFA in substantially the form
attached hereto as Exhibit A, and hereby declares that the construction of the City Facilities
and the conveyance of the City Facilities to the City in accordance with the City JCFA will
be beneficial to the residents within the City
ATTEST:
PASSED,APPROVED,AND
JOE
R. MONAHAN, CITY CLERK
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF SAN JUAN CAPISTRANO )
thi�1" day of June 2004.
,MA
I, MARGARET R. MONAHAN, appointed City Clerk of the City of San Juan Capistrano, do hereby certify that the
foregoing Resolution No. 04-06-01-05 was duly adopted by the City Council of the City of San Juan Capistrano at
a regular meeting thereof, held the 1� day of June 2004, by the following vote:
AYES: COUNCIL MEMBERS: Allevato, Swerdlin, and Mayor pro tem Hart
NOES: COUNCIL MBERS: None
ABSTAIN: COUNCIL M M S: Bathgate and Mayor Soto
AR ARET R. MONAHAN, City Clerk
2 06-01-2004
AMENDED AND RESTATED
JOINT COMMUNITY FACILITIES AGREEMENT
among
CAPISTRANO UNIFIED SCHOOL DISTRICT
and
CITY OF SAN JUAN CAPISTRANO
and
SJD PARTNERS, LTD.
relating to
COMMUNITY FACILITIES DISTRICT NO. 98-1A OF THE
CAPISTRANO UNIFIED SCHOOL DISTRICT
(PACIFICA SAN JUAN)
EXHIBIT "A" 19
AMENDED AND RESTATED
JOINT COMMUNITY FACILITIES AGREEMENT
THIS AMENDED AND RESTATED JOINT COMMUNITY FACILITIES AGREEMENT
(the "Agreement") is entered into effective as of the 14`h day of June, 2004, by and among the
CAPISTRANO UNIFIED SCHOOL DISTRICT, a public entity, (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 COMMUNITY FACILITIES
DISTRICT NO. 98-1A OF THE CAPISTRANO UNIFIED SCHOOL DISTRICT (PACIFICA SAN
JUAN), as amended on June 14, 2004, COMMUNITY FACILITIES DISTRICT NO. 99 -IA OF
THE CAPISTRANO UNIFIED SCHOOL DISTRICT (PACIFICA SAN JUAN) (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 as amended pursuant to the 2004 Amendment Proceedings (defined below). 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
legislative approvals to construct 416 residential units on the Property and to provide the required
infrastructure for such units.
C. The Company has heretofore requested the Board of Trustees of the School District
(the "Board of Trustees") to form and establish the District, and, pursuant to Company's Petition to
the School District dated February 26, 2004 (the "Petition"), to amend, 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").
The School District and the District are currently undertaking proceedings to amend the District
pursuant to the Petition, which proceedings shall be collectively referred to herein as the "2004
Amendment Proceedings."
D. The District, as amended, is expected to be authorized to finance schools to be owned
and operated by the School District (the "School Facilities") and certain 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, collectively, as the "Facilities".
E. It is expected that the cost of the School Facilities will exceed the cost of the City
Facilities, therefore, the School District is permitted to have primary responsibility for the formation
and administration of the District.
F. 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
DOCSOC 1032540v5,22508-0049
acquisition of the City Facilities and the School Facilities and that this Agreement is beneficial to the
interests of such residents.
G. The parties hereto (the "Parties") have previously entered into that certain Joint
Community Facilities Agreement dated September 13, 1999 (the "Prior City JCFA-), and the
Capistrano Valley Water District ("Capistrano Valley Water District"), the District and the Company
have also entered into that certain Joint Community Facilities Agreement dated September 13, 1999
(the "Prior Water District JCFA" and, together with the Prior City JCFA, the "Prior JCFA") with
respect to the District.
H. In 2002, the Capistrano Valley Water District became a subsidiary of the City. This
Agreement supersedes the Prior JCFA.
I. The Parties intend that the District, as amended, will assist in financing the City
Facilities by disbursing District bond construction proceeds pursuant to this Agreement in an amount
which is estimated at, and shall not exceed $13,800,000, plus investment eamings, if any, thereon
(collectively, 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.
J. 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 amended, will be authorized to finance
from District bond proceeds the construction and/or acquisition of the City Facilities in the City
Facilities Amount and School Facilities as provided in the 2004 Amendment Proceedings. 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.
K. The Company has requested that, upon the deposit of proceeds of District bonds in an
amount equal to $13,800,000 into the City Facilities Account (defined below), the Company shall
receive credit against those certain fees and charges authorized to be levied by the City in connection
with the development of the Property as set forth in Section 9 below.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein,
the parties hereto agree as follows:
1. Recitals. Each of the above recitals is incorporated herein and is true and correct.
2. Proposed Amendment of District. At the request of the Company, the School District
has undertaken to amend the District, pursuant to the Petition, to finance the Facilities. The School
District will retain, at the Company's expense, the necessary consultants to process the proposed
amendments to the District and the issuance of bonds of the District (the `Bonds"), including an
engineer, special tax consultant, bond counsel, appraiser and other consultants deemed necessary by
the School District.
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DOCSOC/ 1032540v5/22508-0049
3. Sale of Bonds and Use of Proceeds. In the event the District is amended pursuant to
the Petition, 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 School Facilities and
the City Facilities by issuing Bonds. If any Bond proceeds are escrowed, after payment of the costs
of issuing the Bonds, there shall first be reserved from the Bond construction proceeds $13,818,000
to finance the School Facilities, which amount shall adjust according to the Impact Mitigation
Agreement related to Community Facilities District No. 98-1A by and between the School District
and the Company (the "Mitigation Agreement"). 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 an
escrow release test 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 Bonds.
The Company acknowledges that the acquisition of the City Facilities and the amount
and timing for the funding of the City Facilities Amount shall be in all respects subject to this
Agreement. 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 funds for 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 have been
satisfied or 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) Bond proceeds designated for the City Facilities and School Facilities shall be
held by the fiscal agent for the District (the "Fiscal Agent") in separate subaccounts of the Project
Account of a special fund (the "Acquisition and Construction Fund") to be established in connection
with the issuance of the Bonds. After funding costs of issuance of the Bonds, a reserve fund, and
capitalized interest for a period of twelve (12) months, or a lesser or greater period requested by the
Company and approved by the School District, the remaining proceeds of the Bonds shall be
deposited in subaccounts of the Project Account of the Acquisition and Construction Fund designated
the "School Facilities Account" and "City Facilities Account" in the following order of priority:
(i) $13,818,000 shall deposited in the School Facilities Account, (ii) $13,800,000 shall be deposited
in the City Facilities Account and (iii) any remaining net proceeds shall be deposited in the School
Facilities Account. The amount to be deposited in the School Facilities Account shall adjust
according to the Impact Mitigation Agreement. Investment earnings on amounts in each subaccount
of the Acquisition and Construction Fund shall remain in such subaccount until expended for the
respective Facilities, except as provided in the following sentence. The amount in the Acquisition
and Construction Fund shall at all times be available for the 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.
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DOCSOCf 1032540v522509-0049
(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 Bonds accruing from the investment of the Bond proceeds requested, from
the date of receipt of such Bond proceeds by the City to the date of expenditure by the City of such
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 Bond proceeds or each anniversary date of the
transfer of such 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 City Facilities Amount. 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. Acquisition of City Facilities.
(a) 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 City
Facilities Amount, regardless of the cost of City Facilities, and further that the City shall have no
obligation to pay any costs of the Acquisition Facility unless and until an amount at least equal to
$13,800,000 has been deposited into the City Facilities Account. Company shall be responsible for
the preparation of the plans and specifications (the "Plans and Specifications") for the grading of a
portion of "A" Street as provided in Exhibit B hereto to be acquired with the proceeds of the Bonds
(the "Acquisition Facility"). The Plans and Specifications shall conform to the requirements of the
City for the Acquisition Facility and shall be subject to the review and approval by the City.
(b) Construction and Inspection of the Acquisition Facility. The Acquisition
Facility must be constructed in accordance with the Plans and Specifications as approved by the City.
The Company shall be solely responsible for the bidding, contracting and construction of the
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DO( 'SOG 1032540v5/22509-0049
Acquisition Facility to be acquired with the proceeds of the Bonds in accordance with the
requirements set forth in this Section 5. The District shall have no responsibility whatsoever for the
bidding, contracting and/or the construction of the Acquisition Facility. The construction of the
Acquisition Facility shall be subject to inspection by the City. Upon the request of the Company, the
City shall notify the District and the Company in writing when the Acquisition Facility has been
substantially completed in accordance with the Plans and Specifications and when the Acquisition
Facility has been finally completed and is ready for acceptance by the City Engineer. The Company
represents that (i) prior to approval of this Agreement at least two (2) bids were obtained for the
grading of the "A" Street right-of-way, (ii) the contract for such grading (the "Grading Contract")
was awarded to the lowest bidder, (iii) the Grading Contract substantially complies with the terms of
this Agreement, and (iv) the Company will pay prevailing wages for all work performed pursuant to
the Grading Contract. The Grading Contract, bid forms and winning bid (collectively, the "Bid
Documents") are subject to review and approval or rejection by the City. The City acknowledges
that, subject to prior satisfaction of the following conditions precedent: (i) City approval of the Bid
Documents, (ii) the contractor to whom the Acquisition Facility contract is awarded shall have paid
not less than the prevailing rates of wages for all Acquisition Facility work pursuant to Labor Code
Sections 1770, 1773 and 1773.1, and (iii) Final Completion of the Acquisition Facility, expenditures
with respect to such Grading Contract shall be eligible for funding from the City Facilities Account.
City hereby affirms that Company's compliance with all provisions of this Section 5(b) ensures that
the Acquisition Facility to be acquired with the proceeds of the Bonds shall be constructed as if it had
been constructed under the direction and supervision, or under the authority of, the City.
For purposes of this Agreement, the Acquisition Facility shall be deemed "substantially
completed" when the Company has notified the City that the Acquisition Facility has been completed
in accordance with its Plans and Specifications, the City's inspector has inspected the facility,
prepared a final "punch list" and has determined that the punch list items required to be completed
are items not required for the safe operation of the Acquisition Facility and can therefore be
completed after the Acquisition Facility has been accepted by the City. For purposes of this
Agreement, Final Completion of the Acquisition Facility shall be deemed to have occurred,
notwithstanding the fact that the construction of "A" Street is not then complete, upon acceptance by
the City Engineer of the "A" Street grading improvements provided all punch list items have been
completed to the satisfaction of the City and all contractors and subcontractors constructing the
grading improvements shall have provided lien and material releases.
(c) Acquisition and Ownership of the Acquisition Facility. Upon receipt by the
District of notification by the City that the Acquisition Facility has been finally completed in
accordance with the Plans and Specifications, the Acquisition Facility shall be deemed eligible for
acquisition by the District. Simultaneously upon acquisition of the Acquisition Facility by the
District, title to the land or, if acceptable to the City, an irrevocable offer of dedication of the land,
underlying the Acquisition Facility shall be conveyed to the City.
Neither the School District nor the City is not directly or indirectly obligated,
indebted or otherwise liable for the payment of the acquisition price, or any portion thereof, of the
Acquisition Facility.
Upon acceptance of the Acquisition Facility by the City, the City shall incorporate
the Acquisition Facility in the City's street system. Following the expiration of any warranty period
applicable to the construction of the Acquisition Facility during which time the Company shall be
responsible for the maintenance of the Acquisition Facility, the City shall thereafter be responsible
DOCSOC/ 1032540v5/22508-0049
for the maintenance of the Acquisition Facility in accordance with all applicable City maintenance
procedures and practices.
(d) Payment Requests. The form of payment request to be submitted to City by
the Company in requesting payment by the District of the acquisition price or funding with respect to
the Acquisition Facility, shall be substantially in the form of Exhibit C-1 hereto. Within ten (10)
business days of Company's submission to City of a payment request, City shall determine if the
Acquisition Facility has been finally completed and shall either deny or approve the payment request,
which approval shall not be unreasonably withheld. If City denies any payment request it shall
provide the Company a detailed written explanation describing the reasons or rational for such
denial. All denied payment requests may be resubmitted for approval. The Company shall
reimburse City for its actual costs incurred in connection with the processing of such payment
requests, including the inspection of the Acquisition Facility and such amounts shall be included in
the acquisition price paid by the District. The sole source of funds for payment of the acquisition
price or funding with respect to the approved Acquisition Facility shall be the Bond proceeds on
deposit in the City Facilities Account, and investment earnings, if any, thereon.
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
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.
The Company shall assume the defense of, indemnify and save harmless, School District, the
District and the City, their respective 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, any act or omission of
Company with respect to this Agreement; provided, however, that the Company 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 officers, agents or employees.
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8. 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 2004
Amendment Proceedings. 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.
9. Fee Credits. The deposit of the following amounts in the City Facilities Account
will be made in lieu of, and in full satisfaction of the payment of the following fees and charges
due to the City in connection with the development of the Property with up to 416 residential
units (collectively, the "Fee Credit Amounts"):
Park Fees
$ 2,661,384
Affordable Housing Fees
1,800,000
Systems Development Fees (211 and 364)
1,182,668
Agricultural Preservation Fees
242,700
Soils Subsidence Remediation Fees
500,000
Catchment Area Fees
150,000
Water Capacity Fees
1,000,000
Non -Domestic Water Fees
700,000
La Novia Fees
364,050
Sewer Connection Fees
1,580,390
Fair Share of Southbound Ortega Hwy. Offramp
76,979
Fair Share of Northbound Ortega Hwy. Offramp
2,604
Total Fee Credit Amounts $10,260,775
The City shall grant a credit against the foregoing fees owed by the Company, its
successors and assigns for the development of up to 416 residential units within the Property
when Bond proceeds in the amount of $10,260,775 are deposited in the City Facilities Account.
If any of the foregoing fees and charges have been advanced by the Company prior to the deposit
of the corresponding amount in the City Facilities Account, such amounts shall be reimbursed to
the Company at the time funds of an equal amount are deposited in the City Facilities Account.
Once the amount of $10,260,775 has been deposited in the City Facilities Account, the
Company, its successors and assigns shall not be required to make any payment for the
corresponding fees and charges at the time such fees and charges are otherwise due unless more
than 416 residential units are developed within the Property. The Company agrees that in
addition to the Fee Credit Amounts, $850,000 (the "Government Facility Amount") shall be
reserved in the City Facilities Account for use by the City to finance other City Facilities, as
determined by the City in its sole discretion. The portion of the City Facilities Amount not
including the Fee Credit Amounts and the Government Facility Amount shall be available to
fund the Acquisition Facility and no fee or charge credit shall be given for such remaining
portion of the City Facilities Amount or for the Government Facility Amount.
10. Amendment. This Agreement may be amended at any time but only in writing
signed by each party hereto.
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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:
School District/District: Capistrano Unified School District
32972 Calle Perfecto
San Juan Capistrano, California 92675
Attn: Associate 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: SID Partners, Ltd.
2392 Morse Avenue
Irvine, California 92614
Attn: Ron Freeman and Bruce Elieff
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. Governing Law. This Agreement and any dispute arising hereunder shall be
governed by and interpreted in accordance with the laws of the State of California.
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.
DOCSOC/ 1032540v5/22508-0049
0 0
18. Successors and Assigns. All of the covenants, stipulations, promises, and
agreements contained in this Agreement by or on behalf of, or for the benefit of, any of the
parties hereto, shall bind or inure to the benefit of any of the successors and assigns of the
respective parties; provided, however, that purchasers of completed residential units shall not be
deemed to be successors and assigns of the Company for purposes of this Agreement, and shall
have no right to enforce any provisions of this Agreement.
19. 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.
20. Counterparts. This Agreement may be executed in counterparts, each of which shall
be deemed an original, but all of which shall constitute but one instrument.
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DOCSOC/ 1032540v5/22508-0049
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year
written below.
Date: .2004 CAPISTRANO UNIFIED SCHOOL DISTRICT
ATTEST:
in
Clerk of the Board of Trustees of the
Capistrano Unified School District
President of the Board of Trustees
CITY OF SAN JUAN CAPISTRANO
M
Its:
City Manager
ATTEST:
0
City Clerk
S-1
DOCSOC/ 1032540v5/22508-0049
SJD PARTNERS, LTD., a California Limited
Partnership
By: SJD Development Corp., a California
Corporation, General Partner
Bruce Elieff
S-2
DOCSOC/ 1032540v5/22508-0049
0
EXHIBIT A
DESCRIPTION OF PROPERTY
0
The real property to be included within Community Facilities District No. 98-1A of the
Capistrano Unified School District (Pacifica San Juan):
666-301-01
675-081-04
675-081-10
675-081-14
675-361-01
675-361-08
675-361-09
A-1
DOC SOC/1032540v5/22508-0049
EXHIBIT B
DESCRIPTION OF CITY FACILITIES
The following improvements are eligible City Facilities:
DESCRIPTION
A. Constructed by City (fees and charges)
Park Improvements
$ 2,661,384
Affordable Housing Improvements
1,800,00011)
Systems Development Improvements (211 and 364)
1,182,668
Agricultural Preservation Improvements
242,700
Soils Subsidence Remediation Improvements
500,000
Catchment Area Improvements
150,000
Water Capacity Improvements
1,000,000
Non -Domestic Water Improvements
700,000
La Novia Improvements
364,050(1)
Sewer Connection Improvements
1,580,390
Fair Share of Southbound Ortega Hwy. Offramp
76,979
Fair Share of Northbound Ortega Hwy. Offramp
2,604
City Wide Development Improvements
850,000
B. Acquisition Facility (2)
"A" Street Grading 2,689,22513)
Total $13,800,000
11) Represent amounts previously advanced by Company to City as of May 1, 2004 to be reimbursed
to Company when City Facilities Account funded.
(2) "A" Street grading costs shall be funded upon completion of grading, prior to completion of
roadway construction and separate from funding for construction and soft costs for "A" Street.
Individual Facilities, if any, may be specified in a written supplement executed by Company and
City Engineer.
13) "A" Street grading costs in excess of $2,689,225, but not to exceed $4,716,648 in aggregate
grading costs, may be funded from the City Facilities Account to the extent of investment
earnings, if any, therein.
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DOCSOC/1032540v5/22508-0049
EXHIBIT C
DISBURSEMENT REQUEST FORM
CITY OF SAN JUAN CAPISTRANO
PACIFICA SAN JUAN PLANNED COMMUNITY
Community Facilities District No. 98-1A of the Capistrano Unified School District (Pacifica
San Juan) ("CFD No. 98-1A") is hereby requested to pay from the City Facilities Subaccount of the
Project Account of the Acquisition and Construction Fund established by that certain Bond Indenture
(the "Bond Indenture") entered into by CFD No. 98-1A in connection with its CFD No. 98-1A Series
2004 Special Tax Bonds (the "Bonds"), to the City of San Juan Capistrano (the "City"), as Payee, the
sum set forth below in payment of project costs described below.
The undersigned certifies that the amount requested has been expended or encumbered for
the purposes of acquiring, constructing or completing City Facilities. The amount requested is due
and payable under, or is encumbered for the purpose of funding, a purchase order, contract or other
authorization with respect to the project costs described below and has not formed the basis of prior
request or payment. The City agrees to trace and remit to CFD No. 98-1A all earnings, if any, in
excess of the yield on the Bonds accruing from the investment of the amounts requested herein, from
the date of receipt by the City of such amounts to the date of expenditure of such amounts by
payment thereof to a third party for the costs set forth below. Such remittance, if any, shall be made
each year on the earlier of the expenditure of such amounts or the anniversary date of the transfer of
the requested amounts by CFD No. 98-1A to the City.
Total payments to the City from the Acquisition and Construction Fund have not exceeded
$13,800,000 plus investment earnings, if any, on such amount.
Description of City Facilities Costs:
Amount requested: $
The amount of $ is authorized and payable pursuant to the terms of the Joint
Community Facilities Agreement among CFD No. 98-1A, SJD Partners Ltd., and the City of San
Juan Capistrano dated as of June 14, 2004.
Executed by an authorized representative of each of SJD Partners, Ltd. and the City of San
Juan Capistrano.
SID PARTNERS, LTD. CITY OF SAN JUAN CAPISTRANO:
By: By:
Its: Its:
Date:
Date:
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DOCSOC/ 1032540v 5/22508-0049
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EXHIBIT C-1
FORM OF ACQUISITION FACILITY PAYMENT REQUEST
The undersigned, hereby requests payment in the total amount of S for the
Acquisition Facility (as defined in the Joint Community Facilities Agreement by and among
Capistrano Unified School District (the "School District'), City of San Juan Capistrano (the "City")
and SJD Partners, Ltd. (the "Owner"), dated June 14, 2004 (the "Agreement')), all as more fully
described in Attachment I hereto. In connection with this Payment Request, the undersigned hereby
represents and warrants to the City as follows:
1. He(she) is a duly authorized officer of the undersigned, qualified to execute this
Payment Request for payment on behalf of the undersigned and is knowledgeable as to the matters
set forth herein.
2. All costs of the Acquisition Facility for which payment is requested hereby are actual
costs and have not been inflated in any respect. The actual costs for which payment is requested
have not been the subject of any prior disbursement request submitted to Community Facilities
District No. 98-1 (Pacifica San Juan) of the Capistrano Unified School District (the "CFD").
3. Supporting documentation (such as third party invoices, lien releases and cancelled
checks or other evidence of payment) is attached with respect to each cost for which payment is
requested.
4. The Acquisition Facility for which payment is requested was constructed in
accordance with the requirements of the Agreement.
5. The undersigned is in compliance with the terms and provisions of the Agreement
and no portion of the amount being requested to be paid was previously paid.
6. The acquisition price for the Acquisition Facility has been calculated in conformance
with the terms of the Agreement.
7. Please authorize payment of the acquisition price by the CFD to the following
entity(ies), if other than the undersigned, in the amounts or percentages indicated:
[Insert names of payees and amounts or percentages]
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DOCSOC/ 10325400/22508-0049
0
0
I declare under penalty of perjury that the above representations and warranties are true and correct.
SID PARTNERS, LLC: CITY OF SAN JUAN CAPISTRANO:
Payment Request Approved for
Submission to CFD
By: By:
Its: Its:
Date:
DOCSOC/ 1032540x5/22508-0049
Date:
C-1-2
0
ATTACHMENT
0
SUMMARY OF ACQUISITION FACILITY(IES)
TO BE ACQUIRED AS PART OF PAYMENT REQUEST
Disbursement
Acquisition Facility Actual Costs Requested
[List here all Acquisition Facilities
which payment is requested, and attach support documentation]
C-1-3
DOCSOC/ 1032540v5/22508-0049