04-0901_CAPISTRANO UNIFIED SCHOOL DISTRICT_Joint Community Facilities AgreementJOINT COMMUNITY FACILITIES AGREEMENT
among
CAPISTRANO UNIFIED SCHOOL DISTRICT
and
CITY OF SAN JUAN CAPISTRANO
and
WILLIAM LYON HOMES, INC.
relating to
COMMUNITY FACILITIES DISTRICT NO. 2004-1 OF THE
CAPISTRANO UNIFIED SCHOOL DISTRICT
(RANCHO MADRINA)
EXHIBIT A
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SD
JOINT COMMUNITY FACILITIES AGREEMENT
THIS JOINT COMMUNITY FACILITIES AGREEMENT (the "Agreement") is entered into
effective as of the I" day of September, 2004 (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 corporation (the "City"), and WILLIAM LYON
HOMES, INC., a California corporation (the "Company"), and relates to the proposed formation of
COMMUNITY FACILITIES DISTRICT NO. 2004-1 OF THE CAPISTRANO UNIFIED SCHOOL
DISTRICT (RANCHO MADRINA) (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 120 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, and shall not
exceed, $3,947,000 (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.
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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
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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.
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(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 terns 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.
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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 15c12-12 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 15cl2-12(b)(5) of the Securities and
Exchange Commission and that it will therefore be necessary that Company enter into a continuing
disclosure undertaking that so long as it remains an obligated person it will annually, at the time
specified in such undertaking, provide information to the District and the School District regarding
the Company's financial condition, including, if available, audited financial statements, to be
included in the annual reports which the District will file with the Nationally Recognized Municipal
Securities Repositories which are identified by the Securities and Exchange Commission and any
state information depository that may be designated for the State of California, as required by that
rule. The Company further acknowledges that it will be an obligated person pursuant to such rule as
long as it owns property within the District that is responsible for the payment of annual special tax
installments which represent 10 percent or more of the annual debt service on the outstanding Bonds,
9. Allocation of Special Taxes. Upon sale and delivery of the Bonds, or such earlier
date as the District, in its sole discretion, determines appropriate, the Board of Trustees, as the
legislative body of the District, shall annually levy a special tax as provided for in the formation
5
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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: Associate Superintendent, Facilities Planning
City of San Juan Capistrano City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, California 92675
Attn: City Manager
Company: William Lyon Homes, Inc.
4490 Von Karman Avenue
Newport Beach, CA 92660
Attn: Thomas G. Grable, Project Manager
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.
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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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective
Date.
ATTEST:
B�/ 1.
Clerk of the Board of Trustees of the
Capistrano Unified School District
ATTEST:
Cify cli&
CAPISTRANO UNIFIED SCHOOL DISTRICT
Associate Superintendent, Faciliti6Flanning
CITY OF SAN JUAN CAPISTRANO
By: & G Ar
Its: City Manager, David F. Adams
WILLIAM LYON HOMES, INC.,
a California co at on
IM
HIChard S. Robinson
Its: SenioLVice
By:
Thomas G Grable
Its:
S-8
DOCS00 1031138v4/22508-0057
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
----------------------------------
..
On July 22, 2004 before me, Paula Leslie Gruner, Notary Public, personally
appeared, Richard S. Robinson and Thomas G. Grable personally known to me to be
the person(s) whose names are subscribed to the within instrument and acknowledged
to me that they executed the same in their authorized capacities, and that by their
signatures on the instrument the person(s) or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature
/Paula Leslie Gruner, Notary Pldblic
Commission Expires June 4, 2008
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EXHIBIT A
DESCRIPTION OF PROPERTY
The real property to be included within Community Facilities District No. 2004-1 of the
Capistrano Unified School District (Rancho Madrina):
That certain parcel of land situated in the City of San Juan Capistrano, County of Orange,
State of California described as follows:
Parcels 4 to 12, inclusive, as shown on Exhibit `B" attached to that certain Certificate of
Compliance, recorded March 10, 2000, as Instrument No. 20000127689 of Official Records in the
Office of the County Recorder of said Orange County.
TOGETHER WITH Parcel 2 as shown on Exhibit `B" attached to that certain Lot Line
Adjustment No. 02-103/11-02 recorded May 6, 2002, as Instrument No. 20020378695 of Official
Records in said Office of the County Recorder.
A-1
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EXHIBIT B
DESCRIPTION OF CITY FACILITIES
The following improvements are eligible for acquisition as City Facilities:
DESCRIPTION
City -Wide Facilities $394,700
San Juan Water Facilities
San Juan Water Capital Improvement Facilities
San Juan Water Storage Facilities
Capistrano Circulation Facilities
San Juan Park Facilities
San Juan Ordinance #364 Facilities
San Juan Drainage Facilities
B-1
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$293,494
$263,748
$183,892
$886,440
$1,392,000
$461,627
$71,099
EXHIBIT C
DISBURSEMENT REQUEST FORM
CITY OF SAN JUAN CAPISTRANO
RANCHO MADRINA PLANNED COMMUNITY
Community Facilities District No. 2004-1 of the Capistrano Unified School District (Rancho
Madrina) ("CFD No. 2004-1") 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. 2004-1 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. 2004-1 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. 2004-1 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. 2004-1, William Lyon
Homes, Inc., and the City of San Juan Capistrano dated as of September 15, 2004.
Executed by an authorized representative of the City of San Juan Capistrano.
LE
Name:
Request
C-1
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