1997-0519_CAPISTRANO UNIFIED SCHOOL DISTRICT_2nd Amd & Rstd Agr for Cooperation040
SECOND AMENDED AND RESTATED AGREEMENT FOR COOPERATION
1. PARTIES AND DATE.
1.1 Parties to Agreement. This Second Amended and Restated Agreement for
Cooperation (the "Agreement" or the "Second Amended Agreement") is hereby entered into as of
May 19, 1997, by and among the CAPISTRANO UNIFIED SCHOOL DISTRICT, a public
agency (the "District"), the SAN JUAN CAPISTRANO COMMUNITY
REDEVELOPMENT AGENCY, a public body, corporate and politic (the "Agency"), and the
CITY OF SAN JUAN CAPISTRANO, a municipal corporation (the "City").
1.2 Amends and Restates Original Agreement. This Agreement amends and
restates those specific provisions of: 1) that certain Agreement for Cooperation between the
District, the Agency and the City, dated March 5, 1985 (the "Original Agreement"); and 2) that
certain Amended and Restated Agreement for Cooperation between the District, the Agency and
the City, dated January 7, 1986 (the "First Amended Agreement"), which remain to be performed
in the manner agreed by the respective parties.
2. RECITALS.
2.1 Redevelopment Plan. The City of San Juan Capistrano has adopted Ordinance
No. 488 on July 12, 1983, as amended by Ordinance No. 509 adopted on May 15, 1984, and as
amended by Ordinance No. 547 adopted on July 16, 1985, which ordinances approve the San
Juan Capistrano Central Redevelopment Project ("Redevelopment Plan") and establish the San
Juan Capistrano Central Project Area ("Area") pursuant to the California Community
Redevelopment Law (Health and Safety Code Section 33000, et. seq. for the redevelopment,
replanning and redesigning of certain blighted areas within the City of San Juan Capistrano which
require redevelopment in the interest of the health, safety, and general welfare of the City of San
Juan Capistrano.
2.2 Need for Elementary School. The District has identified the need for a new
elementary school site in close proximity to Marco Forster Middle School. A site for such
elementary school has been incorporated into the City's Open Space Master Plan and shall be
named as determined by the District (the "Elementary School 664640007 Parcel"). The
Elementary School 664640007 Parcel is an approximately seven (7) acre portion of a larger parcel
of real property which has been jointly acquired by the City and the Agency, and is depicted on
Exhibit "A", attached and incorporated herein by reference.
2.3 Purpose of Agreement. District on the one hand and Agency and City, on the
other hand, wish to enter into this Second Amended and Restated Agreement for Cooperation
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among themselves to provide mutual aid and assistance in the redevelopment of certain areas of
the City. More specifically, and subject to the conditions described hereinafter, Agency, City and
District wish to cooperate in connection with the following redevelopment activities, which shall
constitute mutual and adequate consideration for the exchange and release of each obligation and
activity:
(a) Conveyance of fee title to the Elementary School 664640007 Parcel from the
City and the Agency to the District for the construction of a school thereon as further described in
the Purchase and Sale Agreement attached as Exhibit "B", attached hereto and incorporated
herein by reference.
(b) Reconveyance from the Agency to the District of fee title to Parcel B of the
Capistrano Elementary School Site (more particularly known as the "Serra High School Site"),
particularly described in the grant deed attached hereto as Exhibit "C", attached hereto and
incorporated herein, to be executed concurrently herewith. The legal description for Parcel B
shall include the playing field and all property upon which permanent and relocatable buildings as
currently situated on the Serra High School Site, as more particularly determined by a survey, the
cost of which shall be equally shared by the Agency and the District.
(c) Release by District of the Agency's obligation to proceed with the construction
of a fifty (50) meter competition swimming pool as required by Sections 5.4(b) and 5.9 of the
First Amended Agreement; however, this does not preclude the District from utilizing school
facilities fund proceeds for the construction of said swimming pool as provided for in Section 5.3.
(d) Release by District of the Agency's obligation to relocate the District's existing
adult education and continuation school facilities which exist on said Parcel B to a permanent site
to be acquired by the Agency for the District as imposed by Section 2.2(d) of the First Amended
Agreement.
(e) Release by the District of the obligation to convey fee title to the District of a
2.5 acre site free and clear of all liens and encumbrances, subject to the District's prior right to
approve such site, as required by Sections 5.4(b) and 5.9 of the First Amended Agreement.
(f) Lease of real property from the District to the Agency, known as "Stone
Field", more particularly described in the proposed lease, attached as Exhibit "D" and
incorporated herein by reference, and the conveyance of fee title to the Agency of another parcel
known as the "Library Parcel", as described on Exhibit "E", attached hereto and incorporated
herein.
(g) Continuation of the existing tax sharing agreement, as provided in the Original
Agreement and First Amended Agreement, to alleviate the burden and detriment of the
Redevelopment Plan upon the District.
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(h) Termination of all other obligations under the Original Agreement and the
First Amended Agreement, permanently and irrespective of the performance or non-performance
of the obligations under this Second Amended Agreement.
3. EFFECT ON PRIOR OBLIGATIONS.
3.1 Continuation of Tax Sharing and Termination of Other Obligations. The
parties intend that the tax sharing obligations of the Agency to the District pursuant to Section 6.1
(bxii) of the First Amended Agreement shall remain in full force and effect as restated in this
Second Amended Agreement, and shall be clarified but not amended by this Second Amended
Agreement. Except as specified in Section 2.3 of this Agreement, all other respective obligations
of the parties pursuant to the Original Agreement and the First Amended Agreement are hereby
terminated, extinguished and of no further force or effect, regardless of the performance or failure
thereof of any obligation under this Second Amended Agreement. All obligations to assist in the
development of the Commercial Site as a single, unified, high intensity commercial development
are hereby extinguished. The obligation of the District to convey Buchheim Field and the
recreational portion of the San Juan School Site to the Agency is terminated, and the Agency's
obligation for the redevelopment thereof is terminated. The obligation of the Agency to construct
a competition swimming pool is terminated, however, this does not preclude the District from
utilizing school facilities fund proceeds for the construction of such a swimming pool as provided
for in Section 5.3. The obligation to establish Fund No. 1 is terminated.
4. CONVEYANCE OF THE ELEMENTARY SCHOOL 664640007 PARCEL TO
DISTRICT.
4.1 Purchase and Sale of Elementary School 664640007 Parcel. The City and
Agency agree to sell to the District and the District agrees to purchase the Elementary School
664640007 Parcel, in accordance with and subject to all of the terms, covenants, and conditions
of that certain Purchase and Sale Agreement (Exhibit "B").
4.2 Purchase Price, Payment and Note.
A. The purchase price of the Elementary School 664640007 Parcel shall be
Two Million Four Hundred Thousand Dollars ($2,400,000.00), or a final purchase price set by
appraisal as approved by the Office of Public School Construction of the State of California,
subject to the following limitations:
(i) the final purchase price may be set anywhere within the range of
10% of the $2,400,000, plus or minus, pursuant to the Office of
Public School Construction final approval of an appraisal from a
certified appraiser;
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(ii) if the final appraisal figure deviates more than 10% from the
$2,400,000 purchase price, then either party reserves the right to
reconsider and rescind this Agreement within 30 days of receipt of
written notice of the final appraisal figure from the Office of Public
School Construction. Rescission of this Agreement shall be
completed by either party sending written notice of termination to
the other party.
B. The purchase price shall be subject to a credit from the Agency in favor of
the District. The credit shall be calculated to equal an amount of money using the same per -acre
value established for the Elementary School 664640007 Parcel, multiplied by a factor of two and
1/2. Therefore, as an example, if the Elementary School 664640007 Parcel is assumed to be 10
acres and having a final appraised value of $2.4 million, the per -acre value would be $240,000.
The credit calculation would then be 2 1/2 x $240,000 = $600,000. The credit of $600,000
would then be applied to reduce the purchase price by that amount.
C. The purchase price shall be paid by District with payments from the
Capistrano Unified School District\San Juan Capistrano Community Redevelopment Agency
School Facilities Fund ("School Facilities Fund") as described herein in Section 5. 1, until paid in
full. Each party agrees to authorize the application of tax sharing payments to provide for the
payment of the purchase price of the Elementary School 664640007 Parcel through Agency's
retention of the amounts to be paid to District into the School Facilities Fund.
D. Since the consideration for the reduced purchase price is separate and apart
from the value of the Elementary School 664640007 Parcel, the reduced purchase price shall not
be reflected in the Purchase and Sale Agreement. The purchase price shall be paid by the District
commencing upon the eleventh (11th) anniversary of the date that the Agency first makes a
payment to the District pursuant to Section 5.1 hereunder.
E. District shall execute a Promissory Note in the form of Exhibit '7%
attached hereto and made a part hereof, secured by the School Facilities Fund, to guarantee
payment of the purchase price. The note shall reference the above stated credit.
4.3 No Interest on Promissory Note. The promissory note reflecting the purchase
price of the Elementary School 664640007 Parcel shall bear no interest.
4.4 District Certificate Regarding Future Public Uses of Elementary School
664640007 Parcel. District shall execute the certificate, attached as Exhibit "G," and
incorporated herein by reference, acknowledging that the Elementary School 664640007 Parcel
shall not be used for private, non-public purposes. This certificate is required by Agency to
satisfy certain provisions of the California Community Redevelopment Law (Health and Safety
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Code Sections 33000, et seq.) which apply to the financing used by the Agency to acquire this
subject seven acres of land.
5. CAPISTRANO UNIFIED SCHOOL DISTRICT SAN JUAN CAPISTRANO
COMMUNITY REDEVELOPMENT AGENCY CAPITAL IMPROVEMENT
FUND.
5.1 Establishment of School Facilities Fund. The obligation to create what was
described as Fund No. I in the First Amended Agreement is terminated. Capistrano Unified
School District San Juan Capistrano Community Redevelopment Agency Capital Improvement
Fund No. 2, as said fund was described in the First Amended Agreement, shall be renamed and
hereafter referred to in this Agreement as the "School Facilities Fund", and is hereby restated,
clarified and established. The School Facilities Fund is to be administered by the Agency and to be
utilized for the purposes of this 'agreement. The following monies shall be deposited in the
School Facilities Fund: property taxes which are allocated to the Agency pursuant to Health and
Safety Code Section 33670(b) and which are attributable to that area lying within the territorial
limits of the District which also lies within the territorial limits of the Project Area of the Agency
after the effective date of Ordinance No. 488 of the City of San Juan Capistrano, and which are in
excess of Three Million Dollars ($3,000,000.00) in any year of the Redevelopment Plan (which
excess shall be referred to hereinafter as the "extraordinary tax increment"). Said moneys shall be
allocated by Agency upon receipt to the School Facilities Fund and shall be used and accumulated
in sufficient amount to pay principal and interest on loans, monies advanced to, or indebtedness,
whether funded, refunded, assumed or otherwise, incurred by Agency to finance or refinance, in
whole or in part, its obligations hereunder; provided, however, that in no event shall the District
be entitled to more than Five Million Dollars ($5,000,000.00) in any consecutive five (5) year
period.
5.2 Relationship to Other Tax Increment Funds. The obligations of Agency with
respect to the School Facilities Fund shall be subordinated to funds provided to other taxing
agencies or pledged to other Agency indebtedness if and to the extent that tax increment is
hereafter pledged or promised by Agency to such taxing agencies or other obligees of Agency
other than City, except that no such pledge or promise shall reduce the taxes allocated to School
Facilities Fund below the amount which would otherwise have been levied by or on behalf of the
District after the effective date of Ordinance No. 488 and which are allocated to Agency pursuant
to Health and Safety Code Section 33670(b).
5.3 Use of School Facilities Fund. The School Facilities Fund may be expended only
for acquisition or lease of real property and /or capital improvement projects located within the
City of San Juan Capistrano, either inside or outside of the Project Area, which are of benefit to
the Project Area and in compliance with Health and Safety Code Sections 33445 and 33679, and
all other applicable laws. The primary application of the School Facilities Fund, and first in
priority, shall be the payment of the purchase price of the Elementary School 664640007 Parcel,
as set forth in Section 4.1 of this Agreement. Other permissible uses of the School Facilities Fund
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proceeds include, but are not limited to: the construction of a fifty (50) meter competition
swimming pool at Capistrano Valley High School; the lease or purchase of land or facilities for
use only as schools, District administrative offices and operations facilities; the construction,
expansion, addition to, or reconstruction or modernization of permanent school buildings,
facilities, structures or other permanent public improvements, including without limitation any and
all direct development costs for planning, engineering, and architectural services and costs for
contract administration expenses incurred in connection with the planning, construction or
completion of such public improvements, provided that such expenditures are of benefit to the
Project Area. The use of such funds for payment of salaries, wages or benefits to District
employees is prohibited, except those costs of District personnel for services directly involved in
the construction, inspection or project management of such public improvements.
6. PROPERTY LEASES AND PARCEL B.
6.1 Parcel B Conveyance to District. The Agency agrees to convey fee title of
Parcel B to District in the form of a grant deed as set forth in Exhibit "C".
6.2 Termination of Existing Lease. That certain "Lease" of Parcel B at the Serra
High School Site from the City/Agency, as lessor, to the District, as lessee, dated April 27, 1989,
is hereby terminated and of no further force or effect. Possession of Parcel B is hereby delivered
to the District, effective with the execution of this Agreement, and the parties mutually release
each other from any obligations pursuant to the Lease.
6.3 Agreement to Lease Stone Field and Convey Fee Title to the Library Parcel.
A. District and City agree to enter into a lease wherein District shall lease to
City the property known as Stone Field, more particularly described in the lease (Exhibit "D") to
be executed concurrently herewith, for a term of twenty-five (25) years.
B. District, Agency and City agree to the conveyance by District to City of fee
title to the Library Parcel (Exhibit "E"), presently burdened by the remaining term of a fifty (50)
year lease to the City.
7. GENERAL PROVISIONS.
7.1 Termination by Mutual Consent. This Agreement can be terminated only by
mutual consent of all parties.
7.2 Education Code Requirements. This Agreement, inasmuch as it binds District to
sell, lease, exchange and/or grant real property under certain conditions/events, must be executed
in accordance with applicable provisions of the Education Code as must each real property
transaction, subject to approval by the appropriate State Agency.
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7.3 Attorneys' Fees. If any party to this Agreement commences litigation against any
other party for the purpose of determining and enforcing its rights hereunder or for money
damages for a breach hereof or for other equitable relief related hereto, the prevailing party shall
be entitled to receive from the losing party attorneys' fees in the amount determined by the Court,
together with costs reasonably incurred in prosecuting and defending such action.
7.4 Effective Date and Term. This Agreement shall become effective upon the date
set forth above and shall remain in effect for the periods set forth herein.
7.5 Modification and Termination. In the event any section or portion of this
Agreement shall be held, found or determined to be unenforceable or invalid for any reason
whatsoever, the remaining provisions shall remain in effect, and the parties thereto shall take
further actions as may be reasonably necessary and available to them to effectuate the intent of the
parties as to all provisions set forth in this Agreement.
7.6 Default. Failure or delay by any party to perform any term or provision of this
Agreement constitutes a default under this Agreement. The party who so fails or delays must
immediately commence to cure, correct or remedy such failure or delay, and shall complete such
cure, correction or remedy with reasonable diligence and during any period of curing shall not be
in default. The injured party shall give written notice of default to the party in default, specifying
the default complained of by the injured party. If the cure of default is not commenced within
thirty (30) days after service of such notice of default, and is not cured promptly in a continuous
and diligent manner within a reasonable period of time after commencement, the defaulting party
shall be liable for any damages caused by such default, and the non -defaulting party may thereafter
commence an action for damages or for specific performance of this Agreement, with respect to
such default.
7.7 Indemnification. The Agency shall indemnify and hold harmless the District and
its officers, agents, employees, representatives and volunteers, from and against any loss, liability,
claim or judgment relating in any manner to the Agency's discharge or breach of its obligations
pursuant to this Agreement. The District shall indemnify and hold harmless the City, the Agency
and their officers, agents, employees, representatives and volunteers, from and against any loss,
liability, claim or judgment relating in any manner to the District's discharge or breach of its
obligations pursuant to this Agreement.
7.8 Notices. Written notices, demands and communications between the parties shall
be sufficiently given if delivered by hand, sent by telecopy or overnight delivery service, or
dispatched by registered or certified mail, postage prepaid, return receipt requested, to the
addresses specified below:
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To Agency:
San Juan Capistrano Community Redevelopment Agency
32400 Paseo Adelanto
San Juan Capistrano, California 92675
Attention: Executive Director
To District:
Capistrano Unified School District
32972 Calle Perfecto
San Juan Capistrano, California 92675
Attention: Deputy Superintendent
All notices and communications sent to the parties shall be deemed to have been received three
(3) days after the notice or communication has been deposited in the U.S. Mail, and the next
business day after the notice or communication has been delivered by hand or sent by telecopy or
overnight delivery service.
7.9 Books and Records. The Agency shall, within thirty (30) days after receipt of
written request from the District, make available to the District for review or audit its records or
statements regarding the allocation and payment of Tax Increment to the Agency in accordance
with its Redevelopment Plan pursuant to Health and Safety Code Section 33670(b).
7.10 Nonliability of Officials and Employees of Parties. No member, official or
employee of the parties hereto shall be personally liable to the other party, or any successor in
interest, in the event of any default or breach of this Agreement or for any amount which may
become due hereunder, or on any obligations under the terms of this Agreement.
7.11 Conflicts of Interest. No member, official or employee of the parties hereto shall
have any personal interest, direct or indirect, in this Agreement, nor shall any member, official or
employee participate in any decision relating to the Agreement which affects his or her personal
interests or the interests of any corporation, partnership or association in which he or she is
directly or indirectly interested.
7.12 Entire Agreement. This Agreement and the Exhibits attached hereto constitute
the entire understanding and agreement of the parties, integrate all of the terms and conditions
mentioned herein or incidental hereto, and supersede all negotiations or previous agreements
between the parties with respect to all or any part of the subject matter hereof, specifically
including the Original Agreement and the First Amended Agreement, which shall be terminated
and of no further force or effect as of the date of this Agreement. In the event that this
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Agreement is found to be invalid or is otherwise terminated, the Agency and District agree that
each shall attempt in good faith to renegotiate this Agreement to give effect to the intent of the
Agreement, the Original Agreement and the First Amended Agreement.
7.13 Waivers and Amendments. All waivers of the provisions of this Agreement shall
be in writing and executed by the appropriate authorities of the parties, and all amendments hereto
shall be in writing and executed by the appropriate authorities of the parties.
7.14 Time of Essence. Time is of the essence with respect to every portion of this
Agreement of which time is a material part.
7.15 Legal Challenge. The District, City and Agency agree that in the event litigation
is initiated by a person or entity not a party to this Agreement, attacking the validity of all or any
portion of this Agreement, each party shall support and seek to uphold this Agreement.
7.16 Governing Law. This Agreement shall be construed in accordance with the laws
of the State of California.
7.17 Further Assurances. Each party without further consideration agrees to execute
such other and further documents, and to perform such other and further acts, as may be
necessary or proper in order to consummate the settlement and transaction contemplated by this
Agreement.
7.18 Severability. If any term or provision of this Agreement shall be invalid or
unenforceable to any extent, the remainder of this Agreement shall not be affected thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first above written.
DISTRICT:
CAPISTRANO UNIFIED SCHOOL
DITe
T, a publ c agency
By
A. Fleming
Superintendent
ATTEST:1
By:
District Secretary
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APPROVED AS TO FORM:
PARKER, COVERT & CHIDESTER
By: r
Douglas N. Yeo
Special District Counsel
ATTEST:
Cheryl Johns &, A ncy Secretary
APPRO�ASTO RM:
John IV. Shaw, Agency Counsel
ATTEST:
By Cheryl Johns66, CiK Clerk
APPROVED AS TO FORM:
By:
John haw, City Attorney
AGENCY:
SAN JUAN CAPISTRANO COMMUNITY
REDEVELOPMENT AGENCY, a public body
CITY:
CITY OF SAN JUAN CAPISTRANO, a
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