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05-0701_CAPISTRANO UNIFIED SCHOOL DISTRICT_Joint Community Facilities AgreementJOINT COMMUNITY FACILITIES AGREEMENT among CAPISTRANO UNIFIED SCHOOL DISTRICT and CITY OF SAN JUAN CAPISTRANO and WHISPERING HILLS, LLC relating to COMMUNITY FACILITIES DISTRICT NO. 2005-1 OF THE CAPISTRANO UNIFIED SCHOOL DISTRICT (WHISPERING HILLS) DOCSOC/ I103616v2/22508-0042 JOINT COMMUNITY FACILITIES AGREEMENT THIS JOINT COMMUNITY FACILITIES AGREEMENT (the "Agreement") is entered into effective as of the Ist day of July, 2005 (the "Effective Date"), by and among the CAPISTRANO UNIFIED SCHOOL DISTRICT, a public entity, (the "School District"), and the CITY OF SAN JUAN CAPISTRANO, a municipal limited liability company (the "City"), and WHISPERING HILLS, LLC, a California limited liability company (the "Company"), and relates to the proposed formation of COMMUNITY FACILITIES DISTRICT NO. 2005-1 OF THE CAPISTRANO UNIFIED SCHOOL DISTRICT (WHISPERING HILLS) (the "District"). RECITALS: A. The Company is the owner of all of the land within the 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 155 residential units on the Property and to provide the required infrastructure for such units, including schools to be owned and operated by the School District (the "School Facilities") and certain roadway, water, sewer, and storm drain and 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". The City Facilities are to be financed in lieu of the payment of certain fees imposed by the City as a condition of development of the property within the proposed boundaries of the District. C. 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. 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 I 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 $12,200,000 (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. 1 ®C DOCSOCI1103616v2122508-0042 . 0 0 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 City Facilities Amount. 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. 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 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") and levying special taxes of the District. 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 the amount identified in the bond indenture to be hereafter executed in connection with the issuance of the Bonds (the "Bond Indenture") 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 Indenture, 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 SD2 DOCSOC/1 103616v2/22508-0042 0 0 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. Whether or not Bond proceeds are escrowed pursuant to the Bond Indenture, on the date that all or a portion of the City Facilities Amount is deposited into the City Facilities Account of the Acquisition and Construction Fund hereafter established pursuant to the Bond Indenture (the "City Facilities Account') and the City Facilities Amount is known, the City, the District and the Company shall agree as to which City Facilities listed in Exhibit B will be financed and in what amount. Once the City Facilities to be financed are identified, and so long as sufficient Bond proceeds are deposited in the City Facilities Account, the City shall provide a dollar for dollar credit in respect of the fees imposed by the City for the City Facility financed (as shown on Exhibit B) for every dollar of Bond proceeds available to pay costs of the corresponding City Facilities. The credit shall be given in the amount on deposit in the City Facilities Account on the date such amount is deposited in the City Facilities Account. To the extent that the Bond proceeds are not sufficient to pay all of the fees imposed by the City on the development, the Company shall be responsible to pay the remaining amounts when and as due in accordance with the City's policies. The City and the Company will execute such certifications and other documentation as each may reasonably require to implement the provisions of the preceding sentence. The Company acknowledges that the acquisition of the City Facilities, including the amount and timing for the delivery of all funding, including the City Facilities Amount, 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, and neither the City nor the School District shall be liable for the failure to issue bonds or the failure to issue bonds in an amount sufficient to pay for all or any part of the School Facilities and City Facilities. In no event will an act, or an omission or failure to act, excepting only in the event of willful misconduct, by the City or the District with respect to the disbursement or nondisbursement of funds pursuant to this Agreement 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 City Facilities Amount 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. SDDOCSOC/1103616v2/22508-0042 (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 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 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 Indenture 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 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 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 fees relating to the development of the Property in excess of the City Facilities Amount. 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. SDDOCSOC/1103616v2/22508-0042 qO 0 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. 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 Company's obligations under this Agreement; provided, however, that 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. 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 use in drafting 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 15c12-12(6)(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 SD5 DOCSOC/ 1103616v2/22508-0042 0 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: School District/District: Capistrano Unified School District 32972 Calle Perfecto San Juan Capistrano, California 92675 Attn: Deputy Superintendent, Business Services City of San Juan Capistrano City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, California 92675 Attn: City Manager Company: Whispering Hills, LLC c/o Concorde Development 19700 Fairchild, Suite 120 Irvine, CA 926120 Attn: Dennis Gage, President 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. Severabilitv. If any non -material 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. SDDOCS001103616v2/22508-0042 0 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. 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. SDDOCSOC/1103616v2/22508-0042 0 IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date. ATTEST: By:C. le f the Board of Trustees of the Capistrano Unified School District A l-MQ'r- Approved as to form: John Shaw, ity Attomay DOCSOU1103616YN22508.0042 CITY OF SAN JUAN CAPISTRANO By: -.04u - Its: City Manager WHISPERING HILLS, LLC, s Delaware limited liability company By: Concorde Development, L.P., a California limited partnership, as Managing Member S-8 By: Ferrari Investments, a California corporation, as General Partner By: Dern , President EXHIBIT A DESCRIPTION OF PROPERTY The real property to be included within Community Facilities District No. 2005-1 of the Capistrano Unified School District (Whispering Hills): That certain parcel of land situated in the City of San Juan Capistrano, County of Orange, State of California described as follows: SDB-1 DOCSOC/ 1103616v2/22508-0042 EXHIBIT B DESCRIPTION OF CITY FACILITIES The following improvements are eligible City Facilities: May 16, 2005 Description Agency Estimated Budget School Fee CUSD $ 2,355,900 Ambuehl CUSD 500,000 Stadium Lights CUSD 700,000 Pool CUSD 1,800,000 Additional School Facilities Road CUSD 1,500,000 CUSD Subtotal $ 6,855,900 a Traffic Mitigation Fee City 1,144,985 Park Fee City 1,798,000 San Juan AG Preserve City 77,500 San Juan Water Capacity Fee Citv 578,232 San Juan Water Meter City 31,000 San Juan Water Capital Improvement Charge city 311,240 San Juan Water Storage Fee city 217,000 San Juan Drainage Fee city 181,350 San Juan Fee Ordinance No. 211 city 7,750 San Juan Fee Ordinance No. 364 city 575,625 San Juan Sanitation District Sewer Fee city 490,575 Street Improvements city 494,651 Grading City 1,530,071 Sewer city 228,800 Water City 646,500 Reclaimed Water city 236,762 Storm Drain Costs city 1,766,134 Engineering Costs 15% city 735,438 City Payment (10%.fPme.dsA)lacabielo Noo-CUSD6cilities) city 1,227,957 City Subtotal $ 12,279,570 Grand Total LizjiLffi (a) Amount does not include facilities to be funded from pay as you go revenues. SD B-2 DOCSOC/ 1103616v2/22508-0042 EXHIBIT C DISBURSEMENT REQUEST FORM CITY OF SAN JUAN CAPISTRANO WHISPERING HILLS PLANNED COMMUNITY Community Facilities District No. 2005-1 of the Capistrano Unified School District (Whispering Hills)'("CFD No. 2005-1") is hereby requested to pay from the Acquisition and Construction Fund established by Bond Indenture (the "Bond Indenture") of the Board of Trustees of the Capistrano Unified School District in connection with its CFD No. 2005-1 Series 200_ 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 constructing and 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. 2005-1 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. 2005-1 to the City. Total payments to the City from the Acquisition and Construction Fund have not exceeded Description of City Facilities Costs: Amount requested: The amount of $ is authorized and payable pursuant to the terms of the Resolution and the Joint Community Facilities Agreement among CFD No. 2005-1, Whispering Hills, LLC, and the City of San Juan Capistrano dated as of 1, 2005. Executed by an authorized representative of the City of San Juan Capistrano. Request Attest: C-1 SDDOCSOC/1103616v2/22508-0042 so 32400 PASEO ADELANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493.1171 (949) 493.1053 FAx www,san)uancapistrano. org rJwa, IAIRPOO RATIO • m msem 1961 1776 TRANSMITTAL TO: Cindy Russell, Administrative Services Director FROM: Meg Monahan, City Clerk RE: CUSD/Whispering Hills Joint Facilities Agreement DATE: July 12, 2005 MEMBERS OF THE CITY COUNCIL SAM ALLEVATO DIANE BATHOATE WYATT HART JOE SOTO DAVID M. SWERDLIN (3) original signed agreements were transmitted to your office today. Please arrange for approval and execution by the Capistrano Unified School District and return (1) original signed agreement to my attention. Thank you, San Juan Capistrano: Preserving the Past to Enhance the Future 0 AGENDA REPORT TO: Dave Adams, City Manager � F FROM: Cindy Russell, Administrative Services Director 7/5/05 G 2a SUBJECT: Consideration of Joint Community Facilities Agreement (CFD 2005-1) Located West of La Pata Avenue Approximately 1.4 Miles South of the Ortega Highway (Capistrano Unified School District) (Whispering Hills, LLC) RECOMMENDATION: By Motion, adopt the Resolution approving the Joint Community Facilities Agreement (CFD 2005-1) among the City of San Juan Capistrano, Capistrano Unified School District and Whispering Hills, LLC relating to the Whispering Hills Estates development. SITUATION: The Whispering Hills Estates developer, Whispering Hills, LLC (developer), has been working with the Capistrano Unified School District (CUSD) and the City to form a community facilities district (CFD) to fund CUSD as well as City fees and facilities. Similar to the Pacifica San Juan (CFD 98-1) and Rancho Madrina (CFD 2004-1) developments, the developer has requested City participation in the CFD in order to fund certain fees and facilities (Exhibit 1) that are required of this development. In the past, the City Council has identified a projected average total tax rate of 1.7% to be maximum rate they are willing to support for this type of participation in a CFD. Participation in the CFD provides an opportunity for the City to secure a portion of the funds available for City purposes to fund community -wide facilities that would otherwise not be funded by this development. Additionally, the City will receive the benefit of certain fees being paid upon issuance of the debt as opposed to being paid at the time of building permit issuance sometime in the future. The developer has agreed that 10% of the funds allocable to the non-CUSD or City facilities be allocated to community -wide facilities and the remainder be allocated to fees and facilities that are required as part of this development. Based on the estimated available proceeds of approximately $12.2 million, the City's share of funding is estimated to be approximately $1.2 million. The final property valuations, bond market and interest rates will determine the ultimate proceeds. In order to participate in the CFD the City, CUSD, and the developer need to enter into a Joint Community Facilities Agreement (JCFA). The CUSD will be the lead agency for the CFD. The proceeds of this CFD designated for community -wide facilities will be set- 0 Agenda Report Paae 2 0 3, 2004 aside for future improvements as deemed appropriate by the City Council. Staff is currently working on a list of projects that could be funded through CFD funds. This list will also be prepared for review and prioritization by the City Council in the near future. Staff recommends the City Council adopt the Resolution approving the Joint Community Facilities Agreement (CFD 2005-1) among the City of San Juan Capistrano, Capistrano Unified School District and Whispering Hills, LLC relating to the Whispering Hills Estates development. COMMISSION/BOARD REVIEW AND RECOMMENDATIONS: Not Applicable FINANCIAL CONSIDERATIONS: The JCFA provides an opportunity for the City to generate a new funding source for community -wide facilities. Additionally, certain funds that would have been available overtime will now be available sooner upon issuance of the CFD bonds. If the JCFA is not approved, the City will not lose any existing or budgeted funds. NOTIFICATION: Mr. Dennis Gage, Whispering Hills, LLC * Denise Hering, Stradling, Yocca, Carlson & Rauth* Dave Doomey, Capistrano Unified School District* * Agenda Report included RECOMMENDATION: By Motion, adopt the Resolution approving the Joint Community Facilities Agreement (CFD 2005-1) among the City of San Juan Capistrano, Capistrano Unified School District and Whispering Hills, LLC relating to the Whispering Hills Estates development. Respeectffuulllly� submitted, < Cindy Russell Administrative Service Director Attachment: 1. Allocation of Community Facilities District Funds 2. Resolution 05 -07 -05 -XX 3. Location Map • RESOLUTION NO. 05-07-05-05 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, APPROVING A JOINT COMMUNITY FACILITIES AGREEMENT AMONG THE CITY OF SAN JUAN CAPISTRANO, THE CAPISTRANO UNIFIED SCHOOL DISTRICT AND WHISPERING HILLS, LLC RELATING TO THE WHISPERING HILLS ESTATES DEVELOPMENT WHEREAS, the Board of Trustees of the Capistrano Unified School District (the "School District") has heretofore adopted, on April 25, 2005, a resolution of intention ("Resolution No. 0405-83") stating its intention to establish Community Facilities District No. 2005-1 ("CFD No. 2005-1") of the Capistrano Unified School District (Whispering Hills Estates), all pursuant to the Mello -Roos Community Facilities Act of 1982, as amended (the "Act") and to approve a Joint Community Facilities Agreement (the "City JCFA") among Whispering Hills, LLC (the "Property Owner"), the City of San Juan Capistrano (the "City") and the School District; and WHEREAS, Resolution No. 0405-84 also stated the School District's intention to incur bonded indebtedness in an aggregate principal amount not to exceed $30,000,000 within CFD No. 2005-1 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 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: Section 1. Determine that the above recitals are true and correct and are incorporated herein as if fully set forth in the body of this Resolution. Section 2. Order that pursuant to Section 53316.2 of the Act, the City Council hereby approves, and authorizes the execution and delivery by the City Manager or his or her designee, on behalf of the City, the City JCFA in substantially the form attached hereto as Exhibit A, and hereby declares that the construction of the City Facilities and 07-05-2005 0 the conveyance of the City Facilities to the City in accordance with the City JCFA will be beneficial to the residents within the City. ADOPTED, SIGNED and APPROVED this 5th day of July 200 . WYATVXART1 MAY R n i MONAHAN, CITY CLERK STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF SAN JUAN CAPISTRANO ) I, MARGARET R. MONAHAN, appointed City Clerk of the City of San Juan Capistrano, do hereby certify that the foregoing Resolution No. 05-07-05-05 was duly adopted by the City Council of the City of San Juan Capistrano at a Regular meeting thereof, held the 5"' day of July 2005, by the following vote: AYES: COUNCIL MEMBERS: Allevato, Bathgate, Swerdlin, & Mayor Hart NOES: COUNCIL MEMBER: None ABSTAIN: COUNJedL MEMBER: Soto R. MONAHAN, City Clerk 07-05-2005 11 • JOINT COMMUNITY FACILITIES AGREEMENT among CAPISTRANO UNIFIED SCHOOL DISTRICT and CITY OF SAN JUAN CAPISTRANO and WHISPERING HILLS, LLC relating to COMMUNITY FACILITIES DISTRICT NO. 2005-1 OF THE CAPISTRANO UNIFIED SCHOOL DISTRICT (WHISPERING HILLS) EXHIBIT A DOCSOG 1103616v2/22508-0042 JOINT COMMUNITY FACILITIES AGREEMENT 1 THIS JOINT COMMUNITY FACILITIES AGREEMENT (the "Agreement") is entered into 1 effective as of the Ist day of July, 2005 (the "Effective Date"), by and among the CAPISTRANO UNIFIED SCHOOL DISTRICT, a public entity, (the "School District"), and the CITY OF SAN JUAN CAPISTRANO, a municipal limited liability company (the "City"), and WHISPERING HILLS, LLC, a California limited liability company (the "Company"), and relates to the proposed formation of COMMUNITY FACILITIES DISTRICT NO. 2005-1 OF THE CAPISTRANO UNIFIED SCHOOL DISTRICT (WHISPERING HILLS) (the "District"). RECITALS: A. The Company is the owner of all of the land within the 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 155 residential units on the Property and to provide the required infrastructure for such units, including schools to be owned and operated by the School District (the "School Facilities") and certain roadway, water, sewer, and storm drain and 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". The City Facilities are to be financed in lieu of the payment of certain fees imposed by the City as a condition of development of the property within the proposed boundaries of the District. C. 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. 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 1482, 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 findand 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 $12,200,000 (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. DOCSOC/ 1 103616v2/22508-0042 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 City Facilities Amount. 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 taxis 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. 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 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") and levying special taxes of the District. 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 the amount identified in the bond indenture to be hereafter executed in connection with the issuance of the Bonds (the "Bond Indenture") 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 Indenture, 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 DOCSOC t 103616v2/22508-0042 9 0 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. Whether or not Bond proceeds are escrowed pursuant to the Bond Indenture, on the date that all or a portion of the City Facilities Amount is deposited into the City Facilities Account of the Acquisition and Construction Fund hereafter established pursuant to the Bond Indenture (the "City Facilities Account") and the City Facilities Amount is known, the City, the District and the Company shall agree as to which City Facilities listed in Exhibit B will be financed and in what amount. Once the City Facilities to be financed are identified, and so long as sufficient Bond proceeds are deposited in the City Facilities Account, the City shall provide a dollar for dollar credit in respect of the fees imposed by the City for the City Facility financed (as shown on Exhibit B) for every dollar of Bond proceeds available to pay costs of the corresponding City Facilities. The credit shall be given in the amount on deposit in the City Facilities Account on the date such amount is deposited in the City Facilities Account. To the extent that the Bond proceeds are not sufficient to pay all of the fees imposed by the City on the development, the Company shall be responsible to pay the remaining amounts when and as due in accordance with the City's policies. The City and the Company will execute such certifications and other documentation as each may reasonably require to implement the provisions of the preceding sentence. The Company acknowledges that the acquisition of the City Facilities, including the amount and timing for the delivery of all funding, including the City Facilities Amount, 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, and neither the City nor the School District shall be liable for the failure to issue bonds or the failure to issue bonds in an amount sufficient to pay for all or any part of the School Facilities and City Facilities. In no event will an act, or an omission or failure to act, excepting only in the event of willful misconduct, by the City or the District with respect to the disbursement or nondisbursement of funds pursuant to this Agreement 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 cam and accumulate its own interest. The District shall designate in the Acquisition and Construction Fund an amount equal to the City Facilities Amount 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. DOCSOC/ 1 103616v2/22508-0042 0 0 (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 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 generallyaccepted 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 Indenture 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 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 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 fees relating to the development of the Property in excess of the City Facilities Amount. 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. DOCS OC/ 1 103616v2/22508-0042 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. 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 Company's obligations under this Agreement; provided, however, that 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. 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 use in drafting 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 15c12 -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 5 DOCSOC! l 103616v2l22508-0042 9 i 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. It. 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: Deputy Superintendent, Business Services City of San Juan Capistrano City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, California 92675 Attn: City Manager Company: Whispering Hills, LLC c/o Concorde Development 19700 Fairchild, Suite 120 Irvine, CA 926120 Attn: Dennis Gage, President 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. Severabilitv. If any non -material 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. DOCSOC/ 1103616v2/22508-0042 Fi 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. 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. DOCSOC/(103616v2/22508-0042 IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date. ATTEST: By: Clerk of the Board of Trustees of the Capistrano Unified School District ATTEST: Un City Clerk CAPISTRANO UNIFIED SCHOOL DISTRICT Deputy Superintendent, Business Services CITY OF SAN JUAN CAPISTRANO By: Its: City Manager WHISPERING HILLS, LLC, a Delaware limited liability company By: Concorde Development, L.P., a California limited partnership, as Managing Member By: Ferrari Investments, a California corporation, as General Partner LE S-8 DOCSOC/ 1103616v2/22508-0042 Dennis Gage, President EXHIBIT A DESCRIPTION OF PROPERTY The real property to be included within Community Facilities District No. 2005-1 of the Capistrano Unified School District (Whispering Hills): That certain parcel of land situated in the City of San Juan Capistrano, County of Orange, State of California described as follows: B-1 DOCSOC/t 103616v2/22508-0042 0 0 EXHIBIT B DESCRIPTION OF CITY FACILITIES The following improvements are eligible City Facilities: May 16, 2005 Description Agency Estimated Budget School Fee CUSD $ 2,355,900 Ambuehl CUSD 500,000 Stadium Lights CUSD 700,000 Pool CUSD 1,800,000 Additional School Facilities Road CUSD 1,500,000 CUSD Subtotal $ 55900(a) Traffic Mitigation Fee city 1,144,985 Park Fee city 1,798,000 San Juan AG Preserve City 77,500 San Juan Water Capacity Fee City 578,232 San Juan Water Meter City 31,000 San Juan Water Capital Improvement Charge City 311,240 San Juan Water Storage Fee City 217,000 San Juan Drainage Fee City 181,350 San Juan Fee Ordinance No. 211 city 7,750 San Juan Fee Ordinance No. 364 city 575,625 San Juan Sanitation District Sewer Fee City 490,575 Street Improvements city 494,651 Grading City 1,530,071 Sewer city 228,800 Water city 646,500 Reclaimed Water City 236,762 Storm Drain Costs city 1,766,134 Engineering Costs @ 15% City 735,438 City Payment (10% f Proceeds Allocable to Non-CUSD facilidea) City 1,227,957. City Subtotal $ 12,279,570 Grand Total 1 4 (a) Amount does not include facilities to be funded from pay as you go revenues. B-2 DOCSOC/ 1 103616v2/22508-0042 0 0 EXHIBYf C DISBURSEMENT REQUEST FORM CITY OF SAN JUAN CAPISTRANO WHISPERING HILLS PLANNED COMMUNITY Community Facilities District No. 2005-1 of the Capistrano Unified School District (Whispering Hills) ("CFD No. 2005-1") is hereby requested to pay from the Acquisition and Construction Fund established by Bond Indenture (the "Bond Indenture") of the Board of Trustees of the Capistrano Unified School District in connection with its CFD No. 2005-1 Series 200_ 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 constructing and 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. 2005-1 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. 2005-1 to the City. Total payments to the City from the Acquisition and Construction Fund have not exceeded Description of City Facilities Costs: Amount requested: The amount of $ is authorized and payable pursuant to the terms of the Resolution and the Joint Community Facilities Agreement among CFD No. 2005-1, Whispering Hills, LLC, and the City of San Juan Capistrano dated as of 1, 2005. Executed by an authorized representative of the City of San Juan Capistrano. LE Date: Request C-1 DOCSOC/ 1 103616x2/22508-0042 • 0 RESOLUTION NO. 05-07-05-05 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, APPROVING A JOINT COMMUNITY FACILITIES AGREEMENT AMONG THE CITY OF SAN JUAN CAPISTRANO, THE CAPISTRANO UNIFIED SCHOOL DISTRICT AND WHISPERING HILLS, LLC RELATING TO THE WHISPERING HILLS ESTATES DEVELOPMENT WHEREAS, the Board of Trustees of the Capistrano Unified School District (the "School District") has heretofore adopted, on April 25, 2005, a resolution of intention ("Resolution No. 0405-83") stating its intention to establish Community Facilities District No. 2005-1 ("CFD No. 2005-1") of the Capistrano Unified School District (Whispering Hills Estates), all pursuant to the Mello -Roos Community Facilities Act of 1982, as amended (the "Act") and to approve a Joint Community Facilities Agreement (the "City JCFA") among Whispering Hills, LLC (the "Property Owner"), the City of San Juan Capistrano (the "City") and the School District; and WHEREAS, Resolution No. 0405-84 also stated the School District's intention to incur bonded, indebtedness in an aggregate principal amount not to exceed $30,000,000 within CFD No. 2005-1 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 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: Section 1. Determine that the above recitals are true and correct and are incorporated herein as if fully set forth in the body of this Resolution. Section 2. Order that pursuant to Section 53316.2 of the Act, the City Council hereby approves, and authorizes the execution and delivery by the City Manager or his or her designee, on behalf of the City, the City JCFA in substantially the form attached hereto as Exhibit A, and hereby declares that the construction of the City Facilities and 07-05-2005 the conveyance of the City Facilities to the City in accordance with the City JCFA will be t beneficial to the residents within the City. ADOPTED, SIGNED and APPROVED this 5" day of July200 WYAT ART, MAYCfFV MONAHAN, CITY CLERK STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF SAN JUAN CAPISTRANO ) I, MARGARET R. MONAHAN, appointed City Clerk of the City of San Juan Capistrano, do hereby certify that the foregoing Resolution No. 05-07-05-05 was duly adopted by the City Council of the City of San Juan Capistrano at a Regular meeting thereof, held the 5'" day of July 2005, by the following vote: AYES: COUNCIL MEMBERS: Allevato, Bathgate, Swerdlin, & Mayor Hart NOES: COUNCIL MEMBER: None ABSTAIN: C0UW;lL MEMBER: Soto f, R. MONAHAN, City Clerk 07-05-2005 JOINT COMMUNITY FACILITIES AGREEMENT among CAPISTRANO UNIFIED SCHOOL DISTRICT and CITY OF SAN JUAN CAPISTRANO and WHISPERING HILLS, LLC relating to COMMUNITY FACILITIES DISTRICT NO. 2005-1 OF THE CAPISTRANO UNIFIED SCHOOL DISTRICT (WHISPERING HILLS) EXHIBIT A DOCSOC/ 1 103616v2/22508-0042 9 0 JOINT COMMUNITY FACILITIES AGREEMENT t THIS JOINT COMMUNITY FACILITIES AGREEMENT (the "Agreement") is entered into effective as of the 1st day of July, 2005 (the `Effective Date"), by and among the CAPISTRANO UNIFIED SCHOOL DISTRICT, a public entity, (the "School District"), and the CITY OF SAN JUAN CAPISTRANO, a municipal limited liability company (the "City"), and WHISPERING HILLS, LLC, a California limited liability company (the "Company"), and relates to the proposed formation of COMMUNITY FACILITIES DISTRICT NO. 2005-1 OF THE CAPISTRANO UNIFIED SCHOOL DISTRICT (WHISPERING HILLS) (the "District"). RECITALS: A. The Company is the owner of all of the land within the 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 155 residential units on the Property and to provide the required infrastructure for such units, including schools to be owned and operated by the School District (the "School Facilities") and certain roadway, water, sewer, and storm drain and 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". The City Facilities are to be financed in lieu of the payment of certain fees imposed by the City as a condition of development of the property within the proposed boundaries of the District. C. 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. 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 $12,200,000 (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. DOCSOC/ 1103616v2/22508-0042 0 0 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 City Facilities Amount. 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 taxis 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. 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 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") and levying special taxes of the District. 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 the amount identified in the bond indenture to be hereafter executed in connection with the issuance of the Bonds (the "Bond Indenture") 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 Indenture, 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 2 DOCSOG 1 103616Q/22508-0042 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. Whether or not Bond proceeds are escrowed pursuant to the Bond Indenture, on the date that all or a portion of the City Facilities Amount is deposited into the City Facilities Account of the Acquisition and Construction Fund hereafter established pursuant to the Bond Indenture (the "City Facilities Account") and the City Facilities Amount is known, the City, the District and the Company shall agree as to which City Facilities listed in Exhibit B will be financed and in what amount. Once the City Facilities to be financed are identified, and so long as sufficient Bond proceeds are deposited in the City Facilities Account, the City shall provide a dollar for dollar credit in respect of the fees imposed by the City for the City Facility financed (as shown on Exhibit B) for every dollar of Bond proceeds available to pay costs of the corresponding City Facilities. The credit shall be given in the amount on deposit in the City Facilities Account on the date such amount is deposited in the City Facilities Account. To the extent that the Bond proceeds are not sufficient to pay all of the fees imposed by the City on the development, the Company shall be responsible to pay the remaining amounts when and as due in accordance with the City's policies. The City and the Company will execute such certifications and other documentation as each may reasonably require to implement the provisions of the preceding sentence. The Company acknowledges that the acquisition of the City Facilities, including the amount and timing for the delivery of all funding, including the City Facilities Amount, 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, and neither the City nor the School District shall be liable for the failure to issue bonds or the failure to issue bonds in an amount sufficient to pay for all or any part of the School Facilities and City Facilities. In no event will an act, or an omission or failure to act, excepting only in the event of willful misconduct, by the City or the District with respect to the disbursement or nondisbursement of funds pursuant to this Agreement 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 tocompelthe 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 City Facilities Amount 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. DOCSOC/ 1 103616v2/22508-0042 0 • (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 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 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 Indenture 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 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 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 fees relating to the development of the Property in excess of the City Facilities Amount. 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. 4 DOCSOC/ 1 103616x2/22508-0042 0 • 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. 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 Company's obligations under this Agreement; provided, however, that 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. 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 use in drafting 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 15c 12-12(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 5 DOCSOC/ 1103616v2/22508-0042 0 • 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 parry 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: Deputy Superintendent, Business Services City of San Juan Capistrano City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, California 92675 Attn: City Manager Company: Whispering Hills, LLC c/o Concorde Development 19700 Fairchild, Suite 120 Irvine, CA 926120 Attn: Dennis Gage, President 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 non -material 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. DOCSOC/ 1 103616v2/22508-0042 0 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. 14. 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. DOCS OC/ 1 103616v2/22508-0042 • IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date. CAPISTRANO UNIFIED SCHOOL DISTRICT Deputy Superintendent, Business Services ATTEST: By: Clerk of the Board of Trustees of the Capistrano Unified School District CITY OF SAN JUAN CAPISTRANO By: Its: City Manager ATTEST: By: City Clerk WHISPERING HILLS, LLC, a Delaware limited liability company By: Concorde Development, L.P., a California limited partnership, as Managing Member By: Ferrari Investments, a California corporation, as General Partner By: Dennis Gage, President S-8 DOCSOC/ 1 103616v2/22508-0042 EXHIBIT A DESCRIPTION OF PROPERTY The real property to be included within Community Facilities District No. 2005-1 of the Capistrano Unified School District (Whispering Hills): That certain parcel of land situated in the City of San Juan Capistrano, County of Orange, State of California described as follows: B-1 DOCSOG 1103616v2/22508-0042 EXHIBIT B DESCRIPTION OF CITY FACILITIES The following improvements are eligible City Facilities: May 16, 2005 Description Agency Estimated Budget School Fee CUSD $ 2,355,900 Ambuehl CUSD 500,000 Stadium Lights CUSD 700,000 Pool CUSD 1,800,000 Additional School Facilities (Road) CUSD 1,500,000 CUSD Subtotal $ 6,855,900' Traffic Mitigation Fee city 1,144,985 Park Fee City 1,798,000 San Juan AG Preserve City 77,500 San Juan Water Capacity Fee Citv 578,232 San Juan Water Meter city 31,000 San Juan Water Capital Improvement Charge city 311,240 San Juan Water Storage Fee city 217,000 San Juan Drainage Fee City 181,350 San Juan Fee Ordinance No. 211 City 7,750 San Juan Fee Ordinance No. 364 City 575,625 San Juan Sanitation District Sewer Fee City 490,575 Street Improvements city 494,651 Grading City 1,530,071 Sewer city 228,800 Water City 646,500 Reclaimed Water city 236,762 Storm Drain Costs city 1,766,134 Engineering Costs 15% Citv 735,438 City Payment (10%.fProceedsAllocable to Non-CUSD[aciUdes) Cit 1,227,957, City Subtotal $ 12,279,570 Grand TotalS—MUL420 (a) Amount does not include facilities to be funded from pay as you go revenues. B-2 DOCSOC/ 1103616v2/22508-0042 • i � EXHIBIT C DISBURSEMENT REQUEST FORM CITY OF SAN JUAN CAPISTRANO WHISPERING HILLS PLANNED COMMUNITY Community Facilities District No. 2005-1 of the Capistrano Unified School District (Whispering Hills) ("CFD No. 2005-1") is hereby requested to pay from the Acquisition and Construction Fund established by Bond Indenture (the "Bond Indenture") of the Board of Trustees of the Capistrano Unified School District in connection with its CFD No. 2005-1 Series 200_ 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 constructing and 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. 2005-1 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. 2005-1 to the City. Total payments to the City from the Acquisition and Construction Fund have not exceeded Description of City Facilities Costs: Amount requested: $ The amount of $ is authorized and payable pursuant to the terms of the Resolution and the Joint Community Facilities Agreement among CFD No. 2005-1, Whispering Hills, LLC, and the City of San Juan Capistrano dated as of 1, 2005. Executed by an authorized representative of the City of San Juan Capistrano. By: Date: Request C-1 DOCSOC/ 1 103616v2/22508-0042 THE CITY OF SAN JUAN CAPISTRANO N f A s $ y � f CFD 2005-1 WHISPERING HILLS F d 30M 6000 9000 Fee: ATTACHMENT • 6/7/2005 E2 AGENDA ITEM TO: David Adams, City Manager 9b f , FROM: Molly Bogh, Planning Director SUBJECT: Consideration of a Development Agreement for Vesting Tentative Tract Map 16634, a Proposal to Develop 155 Single -Family Detached Homes on Approximately 314 Acres (Located in the Southeast Portion of the City, West of La Pata Avenue and Approximately 1.4 Miles South of the Ortega Highway (Whispering Hills Estates) (APNs 121-172-02, 124-140-49, 124- 140-53 and 124-223-45). By motion, open the public hearing, accept testimony, and continue the public hearing to Tuesday, July 5, 2005 at 7:00 p.m. ADDlicant - ProDerty Owner: Dennis Gage Whispering Hills LLC 19700 Fairchild Road, Suite 120 Irvine, CA 92612 949-833-1100 Attorney David Colgan Nossaman Guthner Knox Elliott LLP 18101 Von Kerman Avenue, Suite 1800 Irvine, CA 92612-0177 949-833-7800 SITUATION Owner's Representative: Phillip Schwartze, The PRS Group 31682 EI Camino Real San Juan Capistrano, CA 92675 949-240-1322 Whispering Hills LLC has requested that the City approve a Development Agreement for the Whispering Hills residential project, Vesting Tentative Tract Map (VTTM) 16634. The Planning Commission reviewed the Agreement at its May 24, 2005 meeting and continued it to June 14, 2005. Therefore, staff recommends that the City Council continue the item to July 5, 2005 in order to provide additional time for review of this item by the Planning Commission. The applicant is in concurrence with the continuance, and the delay will not impede progress on formation of a community facilities district for the project. ,Agenda Report' Whispering H*A 2 • June 7, 2005 By motion, open the public hearing, accept testimony, and continue the public hearing to Tuesday, July 5, 2005 at 7:00 p.m. Respectfully submitted, Prepared by, Molly h Larry 6�iwrence Planning Director Consulting Case Planr C Owunientts and SettingslSJC -Whispering Hills DA\Wh Hills DA -CC 6-7-65-wntinuence,dm AFFIDAVIT OF PUBLICATION STATE OF CALIFORNIA, ) ) ss. County of Orange ) I am a citizen of the United States and a resident of the County aforesaid; I am over the age of eighteen years, and not a party to or interested in the above entitled matter. I am the principal clerk of the Capistrano Valley News , a newspaper that has been adjudged to be a newspaper of general circulation by the Superior Court of the County of Orange, State of California, on June 7, 1984, Case No. A-122949 in and for the City of San Juan Capistrano, County of Orange, State of California; that the notice, of which the annexed is a true printed copy, has been published in each regular and entire issue of said newspaper and not in any supplement thereof on the following dates, to wit: May 26, 2005 "I certify (or declare) under the penalty of perjury under the laws of the State of California that the foregoing is true and correct": Executed at Santa Ana, Orange County, California, on Date: May 26, 2005 Signature Capistrano Valley News 625 N. Grand Ave. Santa Ana, CA 92701 (714) 796-7000 ext, 2209 PROOF OTl'1(PEf1 ET)N Jape 20@31 P it 08 CITY CLERK SAN JUAN CAPISTRANO Proof of Publication of NOTICE OF is PUBLIC NEARING CRY OF SAN JUAN CAPISTRANO NAME r MEEST GIVEN, Ow w the 7th day of June, 2005, at 7:00 P.M. In the City Council Chirnilm. 322400 P o A Sen er JeCapi�tranu. CaNaNa. the Gly Conn. Me following: WHUWU IG Nn1S ESTATES PLNGILG COMMUNRY OaVaLOPMENr AGO ES Apphodlon for a dwelaameat agreement for the prffooueyappr v d VAu Pwft Mips EF at ma public ry Lawrence. MARGARET R. MO RK 0 r NOTICE OF TRANSMITTAL CAPISTRANO VALLEY NEWS Legal Publications CHARGE TO ACCOUNT NO. FOR PUBLICATION ON: DOCUMENT TO BE PUBLISHED PROOF OF PUBLICATION AUTHORIZED BY:- DATE: Y'DATE: May 16, Date of Public Hearing Date notice published Date affidavit received 0041125000 Thursday, May 26, 2005 NOTICE OF PUBLIC HEARING - Whispering Hills Development Agreement Please send to: City Clerk's Division, City Hall 32400 Paseo Adelanto San Juan Capistrano, CA 92675 (949) 493-1171 Date notice posted in designated posting places (3) - Date notice posted on property - Date of mailing notice to interested parties - Date notice transmitted to City Manager's Office - 06/07/05 05/26/05 (.0 05/26/05 N/A 05/26/05 05/16/05 0 0 NOTICE OF PUBLIC HEARING CITY OF SAN JUAN CAPISTRANO NOTICE IS HEREBY GIVEN, that on the 7`h day of June, 2005, at 7:00 P.M. in the City Council Chamber, 32400 Paseo Adelanto, San Juan Capistrano, California, the City Council will hold a public hearing on the following: WHISPERING HILLS ESTATES PLANNED COMMUNITY DEVELOPMENT AGREEMENT Application for a development agreement for the previously -approved Whispering Hills Planned Community. The affected property includes approximately 352 acres and is located in the southeast portion of the City, west of La Pate Avenue and approximately 1.4 miles south of the Ortega Highway (APNs 121-172-02,124-140-49,124-140- 53 and 124-223-45). The applicant is Phillip Schwartze for Whispering Hills LLC. The development agreement is intended to provide assurances for the development of the property and for the provision of public infrastructure and facilities, in accordance with the previously approved Vesting Tentative Tract Map 16634 and Comprehensive Development Plan CDP 04-01. The City Council will consider approval or denial of the agreement. The City staff has determined that the City Council's previous finding that all potentially significant impacts of the Whispering Hills project have been avoided or mitigated per the certified Final Environmental Impact Report (FEIR) and EIR Addendum for the Whispering Hills project applies to the present application. The FEIR and Addendum are available for public review at the City's Planning Department, 32400 Paseo Adelanto. Those desiring to be heard in favor of, or opposition to, this item will be given an opportunity to do so during such hearing. Written information pertaining to this item must be submitted to the City Clerk by 5:30 p.m., on Monday, June 6, 2005 at 32400 Paseo Adelanto, San Juan Capistrano, CA 92675. Individuals desiring to submit late written information at the meeting must orally request to raising only those issues which you or correspondence to the City prior to final action such action. If you challenge this action in Court, you may be limited someone else has raised at the public hearing or in written in this case. For more information, please contact the City's consulting case planner, Larry Lawrence, at 949-661-8175 ) Am 0—,CA� MAR ART R. MONAHAN, CITY CLERK FOR OFFICE USE ONLY: STATE OF CALIFORNIA COUNTY OF ORANGE CITY OF SAN JUAN CAPISTRANO ) ss. AFFIDAVIT OF POSTING AND PUBLICATION I, MARGARET R. MONAHAN, declare that I am the duly appointed and qualified City Clerk of the City of San Juan Capistrano; that on May 26, 2005, 1 caused the above Notice to be posted in three (3) public places in the City of San Juan Capistrano, to wit: City Hall; Community Center Reception Area; Orange County Public Library AND, that on May 26, 2005, the above Notice was published in the Capistrano Valley News newspaper. I declare under penalty of perjury that the foregoing is true and correct. MA AR R. ONA , CITY CL K City of Sa Juan Capis o, California PUBLIC HEARING NOTICE • J; City of San Juan Capistrano Dear Resident/Property Owner: 0 NOTICE IS HEREBY GIVEN, that on the 7'" day of June, 2005, at 7:00 P.M. in the City Council Chamber, located at 32400 Paseo Adelanto, San Juan Capistrano, California, the City Council will hold a public hearing on the following: WHISPERING HILLS ESTATES PLANNED COMMUNITY DEVELOPMENT AGREEMENT Application for a development agreement for the previously -approved Whispering Hills Planned Community. The affected property includes approximately 352 acres and is located in the southeast portion of the City, west of La Pata Avenue and approximately 1.4 miles south of the Ortega Highway (APNs 121-172-02, 124-140-49, 124-140-53 and 124-223-45). The applicant is Phillip Schwartze for Whispering Hills LLC. The development agreement is intended to provide assurances for the development of the property and for the provision of public infrastructure and facilities in accordance with the previously approved Vesting Tentative Tract Map 16634 and Comprehensive Development Plan CDP 04-01, The City Council will consider approval or denial of the development agreement. The City staff has determined that the City Council's previous finding that all potentially significant impacts of the Whispering Hills project have been avoided or mitigated per the certified Final Environmental Impact Report (FEIR) and EIR Addendum for the Whispering Hills project applies to the present application. The FOR and Addendum are available for public review at the City's Planning Department, 32400 Paseo Adelanto. Those desiring to be heard in favor of, or opposition to, this item will be given an opportunity to do so during such hearing. Written information pertaining to this item must be submitted to the City Clerk by 5:30 p.m., on Monday, December 6, 2004 at 32400 Paseo Adelanto, San Juan Capistrano, CA 92675. Individuals desiring to submit late written information at the meeting must orally request such action. If you challenge this action in Court, you may be limited to raising only those issues which you or someone else has raised at the public hearing or in written correspondence to the City prior to final action in this case. For more information, please contact the City's project manager, Larry Lawrence, at 949-661-8175. /s/Margaret R. Monahan City Clerk m PUBLIC HEARING NOTICE City of San Juan Capistrano Dear Resident/Property Owner: NOTICE IS HEREBY GIVEN, that on the 7'" day of June, 2005, at 7:00 P.M. in the City Council Chamber, located at 32400 Paseo Adelanto, San Juan Capistrano, California, the City Council will hold a public hearing on the following: WHISPERING HILLS ESTATES PLANNED COMMUNITY DEVELOPMENT AGREEMENT Application for a development agreement for the previously -approved Whispering Hills Planned Community. The affected property includes approximately 352 acres and is located in the southeast portion of the City, west of La Pata Avenue and approximately 1.4 miles south of the Ortega Highway (APNs 121-172-02, 124-14049, 124-140-53 and 124-223-45). The applicant is Phillip Schwartze for Whispering Hills LLC. The development agreement is intended to provide assurances for the development of the property and for the provision of public infrastructure and facilities in accordance with the previously approved Vesting Tentative Tract Map 16634 and Comprehensive Development Plan CDP 04-01. The City Council will consider approval or denial of the development agreement. The City staff has determined that the City Council's previous finding that all potentially significant impacts of the Whispering Hills project have been avoided or mitigated per the certified Final Environmental Impact Report (FEIR) and EIR Addendum for the Whispering Hills project applies to the present application. The FEIR and Addendum are available for public review at the City's Planning Department, 32400 Paseo Adelanto. Those desiring to be heard in favor of, or opposition to, this item will be given an opportunity to do so during such hearing. Written information pertaining to this item must be submitted to the City Clerk by 5:30 p.m., on Monday, December 6, 2004 at 32400 Paseo Adelanto, San Juan Capistrano, CA 92675. Individuals desiring to submit late written information at the meeting must orally request such action. If you challenge this action in Court, you may be limited to raising only those issues which you or someone else has raised at the public hearing or in written correspondence to the City prior to final action in this case. For more information, please contact the City's project manager, Larry Lawrence, at 949-661-8175. /s/Margaret R. Monahan City Clerk Jam and Smudge Free PriMln® • www.avery.com AV�i�®5160 Use Avefy0 TEMPLATE 5160 1-800-60-AVERY 124-140-48 124-140-49 124-140-50 County Of Orange Whispering Hills Llc Whispering Hills Llc PO Box 4106 19700 Fairchild 120 19700 Fairchild 120 Santa Ana, CA 92702 Irvine, CA 92612 Irvine, CA 92612 124-140-51 124-140-52 124-140-53 Whispering Hills Llc County Of Orange Whispering Hills Llc 19700 Fairchild 120 PO Box 4106 19700 Fairchild 120 Irvine, CA 92612 Santa Ana, CA 92702 Irvine, CA 92612 124-140-54 124-140-55 1 124-140-64 County Of Orange County Of Orange City Of San Juan PO Box 4106 PO Box 4106 32400 Paseo Adelanto Santa Ana, CA 92702 Santa Ana, CA 92702 San Juan Capi, CA 92675 124-223-23 124-223-45 1 124-223-79 Whispering Hills Llc Whispering Hills Llc Schook Capistrano 19700 Fairchild 19700 Fairchild 120 32972 Calle Perfecto Irvine, CA 92612 Irvine, CA 92612 San Juan Capi, CA 92675 124-223-80 124-223-81 1 125-172-05 Whispering Hills Llc Whispering Hills Llc 1 County Of Orange 19700 Fairchild 120 19700 Fairchild 120 1 400 Civic Center Dr W Irvine, CA 92612 Irvine, CA 92612 Santa Ana, CA 92701 125-172-16 125-172-17 125-172-18 Hills Whispering Dmb San Juan Investment Dmb San Juan Investment 19700 Fairchild 120 PO Box 9 PO Box 9 Irvine, CA 92612 San Juan Capi, CA 92693 San Juan Capi, CA 92693 664-101-06 664-101-07 664-101-08 Eldon E Blasco Eldon E & Faith Blasco Hidden Mountain Estates 26482 Avenida La Mancha 28582 Avenida La Mancha 19100 Von Karman Ave 620 San Juan Capi, CA 92675 San Juan Capi, CA 92675 Irvine, CA 92612 664-101-09 664-101-10 664-101-11 Stanley C Cohn Bill D & Jacquelynn Stewart Constance T Mazelin 28521 Avenida La Mancha 28551 Avenida La Mancha 28581 Avenida La Mancha San Juan Capi, CA 92675 San Juan Capi, CA 92675 San Juan Capi, CA 92675 664-101-12 664-101-13 664-101-14 George P & Kay Winckel Anita & Edward Richards Angelo P & Lisa Garruba 31882 Paseo Sagrado 31902 Paseo Sagrado 31922 Paseo Sagrado San Juan Capi, CA 92675 San Juan Capi, CA 92675 San Juan Capi, CA 92675 664-101-15 664-101-16 664-101-17 Douglas Jarvis Ronald J & Annette Hitzfield I Kevin & Jennifer Murphy 31942 Paseo Sagrado 31952 Paseo Sagrado 31962 Paseo Sagrado San Juan Capi, CA 92675 San Juan Capi, CA 92675 San Juan Capi, CA 92675 ANAv-09"O L �. ®o9►s w"e6 ai zesman ®oats ®AZ13/►f/ worAane* M M a0dej a6e439s q 49 a6eunogpue uoissewdwi Jam and Smudge Free Printing Use Avety® TEMPLATE 51604D 664-101-18 W Dye 31972 Paseo Sagrado San Juan Capi, CA 92675 664-101-21 Eric H & Candy Nelson 31971 Paseo Sagrado San Juan Capi, CA 92675' 664-101-24 Teresa E Bayless 31911 Paseo Sagrado San Juan Capi, CA 92675 664-101-27 Arthur E Tribolet 28451 Via Mambrino San Juan Capi, CA 92675 664-101-41 Estates At San Juan 2100 W orangewood Ave 1800 Orange, CA 92868 664-201-24 Scott C Looney 221 20Th St 100 Newport Beach, CA 92663 666-171-32 Gary S Johnson 28382 Paseo Establo San Juan Capi, CA 92675 Mark Nielsen 27126-B Paseo Espada, Suite 725 San Juan Capistrano, CA 92.675 San Juan Creek HOA TSG Mgmt. Company 27129 Calle Arroyo #1802 SJC, CA. 92675 Rancho Mission Viejo Attn: Dan Kelly RO.Box 9 San Juan Capistrano, CA 92693 • ww• AVERY® smO 1 -800 -GO -AVERY Y i 664-101-19 664-101-20 Paul R St Pierre Hidden Mountain Estates 31982 Paseo Sagrado 19100 Von Karman Ave 620 San Juan Capi, CA 92675 Irvine, CA 92612 664-101-22 Harry & Susan Purel 31961 Paseo Sagrado San Juan Capi, CA 92675 664-101-25 Michael K & Alyson Adler 31881 Paseo Sagrado San Juan Capi, CA 92675 664-101-30 Jeffrey G & Peggy Butler 28484 Via Mambrino San Juan Capi, CA 92675 664-171-01 City Of San Juan 32400 Paseo Adelanto San Juan Capi, CA 92675 664-231--09 Stonefield San Juan Llc 23333 Avenida La Caza Coto De Caza, CA 92679 666-171-33 Thomas Mc Donald 28372 Paseo Establo San Juan Capi, CA 92675 664-101-23 Walter Keusder 31941 Paseo Sagrado San Juan Capi, CA 92675 664-101-26 Lloyd H Malchow 28481 Via Mambrino San Juan Capi, CA 92675 664-101-31 Michael J Hajeck *M* 28481 Avenida La Mancha San Juan Capi, CA 92675 664-172-01 City Of San Juan 32400 Paseo Adelanto San Juan Capi, CA 92675 666-171-31 Bonnie Lynn 28381 Paseo Establo San Juan Capi, CA 92675 *** 50 Printed *** Rancho SJ HOA c/o Transpacific Mgmt 2112 E. Fourth St. Santa Ana, CA 92705 i Estates of San Juan HOA Hunters Creek HOA TSG Management Co. c/o Sea Breeze Mgmt Co. 27129 Arroyo #1802 39 Argonaut #100 San Juan Capistrano, CA 92675 Aliso Viejo, CA 92656 Sam Couch Rancho Mission Viejo P. O. Box 9 San Juan Capistrano, CA 92693 Lois Huddlestone 27337 Paseo Laguna San Juan Capistrano, CA 92675 ®09Ls ®A213A1o► a Aa3AV-09.OW& ®o9Ls wege6 ai zesmin ww AGane*AWM aptideJ 86e439s @ 40 ar3eiinogpue uoisswdwi 32400 PASEO ADELANTO SAN JUAN CAPISTRANO, CA 92675 (949) 4931171 (949) 493-10531" www.sanjuancapistrano.org Jo D(DRRDRRIID I SS LIRRm 1961 1776 MEMBERS OF THE CITY COUNCIL NOTIFICATION OF MEETING OF POTENTIAL INTEREST OF THE SAN JUAN CAPISTRANO CITY COUNCIL SAM ALLEVATO DIANE BATHGATE WYATT HART JOE SOTO DAVID M, SWERDLIN The City Council of San Juan Capistrano will meet at 7:00 p.m. on July 5, 2005 in the City Council Chamber in City Hall, to consider: "Consideration of Joint Community Facilities Agreement (CFD 2005-1) Located West of La Pata Avenue Approximately 1.4 Miles South of the Ortega Highway (Capistrano Unified School District) (Whispering Hills, LLC)" — Item No. G 2a. If you have specific thoughts or concerns regarding this item, you are encouraged to participate in this decision making process. You can communicate with the City Council through correspondence addressed to the Council and/or by attending the meeting and speaking to the Council during the public meeting. Correspondence related to this item must be received at the City Clerk's office by 12:00 p.m. on Tuesday, July 5, 2005 to allow time for the Council to consider its content. If you would like to speak at the meeting, please complete a yellow "Request to Speak" form found inside the entrance to the Council Chamber. This form is turned in at the staff table, just in front of the Council dais. You will be called to speak by the Mayor when the item is considered. You have received this notice at the request of the City staff member Cindy Russell, Administrative Director. You may contact that staff member at (949) 443-6301 with any questions. The agenda, including agenda reports, is available to you on our web site: www.sanivancapistrano.orci. If you would like to subscribe to receive a notice when agendas are posted to the web site, please make that request by sending an e-mail to: council-agendasasanivancapistrano.oro. Meg Monahan, CMC City Clerk cc: Dennis Gage, Whispering Hills, LLC*; Denise Hering, Stradling, Yocca, Carlson & Rauth*; Dave Doomey, Capistrano Unified School District*; Cindy Russell, Administrative Director * Received staff report San Juan Capistrano: Preserving the Past to Enhance the Future 40 Printed on recvcletl pager