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04-0614_CAPISTRANO UNIFIED SCHOOL DISTRICT_Amd & Rstd Jt Comm Facilities AgrAMENDED AND RESTATED JOINT COMMUNITY FACILITIES AGREEMENT among CAPISTRANO UNIFIED SCHOOL DISTRICT and CITY OF SAN JUAN CAPISTRANO and SID PARTNERS, LTD. relating to COMMUNITY FACILITIES DISTRICT NO. 98-1A OF THE CAPISTRANO UNIFIED SCHOOL DISTRICT (PACIFICA SAN JUAN) DOCSOC/ 1032540v5/22508-0049 SD AMENDED AND RESTATED JOINT COMMUNITY FACILITIES AGREEMENT THIS AMENDED AND RESTATED JOINT COMMUNITY FACILITIES AGREEMENT (the "Agreement") is entered into effective as of the 14a' day of June, 2004, by and among the CAPISTRANO UNIFIED SCHOOL DISTRICT, a public entity, (the "School District"), and the CITY OF SAN JUAN CAPISTRANO, a municipal corporation (the "City"), and SID PARTNERS, LTD., a California limited partnership (the "Company"), and relates to COMMUNITY FACILITIES DISTRICT NO. 98-1A OF THE CAPISTRANO UNIFIED SCHOOL DISTRICT (PACIFICA SAN JUAN), as amended on June 14, 2004, COMMUNITY FACILITIES DISTRICT NO. 98-1A OF THE CAPISTRANO UNIFIED SCHOOL DISTRICT (PACIFICA SAN JUAN) (the "District"), RECITALS: A. The Company is the owner of all of the land within Assessor's Parcel Numbers listed on Exhibit A hereto in the incorporated territory of the City of San Juan Capistrano, State of California (the "Property") and which is proposed to constitute the land within the boundaries of the District as amended pursuant to the 2004 Amendment Proceedings (defined below). Such boundaries are shown on the map included in Exhibit A attached hereto, which is incorporated by reference herein. B. The Company is the developer of the Property and has obtained the necessary legislative approvals to construct 416 residential units on the Property and to provide the required infrastructure for such units. C. The Company has heretofore requested the Board of Trustees of the School District (the `Board of Trustees") to form and establish the District, and, pursuant to Company's Petition to the School District dated February 26, 2004 (the "Petition"), to amend, the District pursuant to the provisions of the Mello -Roos Community Facilities Act of 1982, Chapter 2.5 (commencing with Section 5 3311) o f P art 1 of D ivision 2 o f T itle S o f t he C alifornia G overnment C ode ( the "Act"). The School District and the District are currently undertaking proceedings to amend the District pursuant to the Petition, which proceedings shall be collectively referred to herein as the "2004 Amendment Proceedings." D. The District, as amended, is expected to be authorized to finance schools to be owned and operated by the School District (the "School Facilities") and certain improvements to be owned and operated by the City which are described in Exhibit B hereto and incorporated by reference herein (the "City Facilities"). The City Facilities and the School Facilities are sometimes collectively referred to herein, collectively, as the "Facilities". E. It is expected that the cost of the School Facilities will exceed the cost of the City Facilities, therefore, the School District is permitted to have primary responsibility for the formation and administration of the District. F. The provision of the School Facilities and the City Facilities is necessitated by the development of the land within the District and the parties hereto find and determine that the residents of the City, the School District and the District will be benefited by the construction and/or DOCS001032540x5/22508-0049 0 0 acquisition of the City Facilities and the School Facilities and that this Agreement is beneficial to the interests of such residents. G. The parties hereto (the "Parties") have previously entered into that certain Joint Community Facilities Agreement dated September 13, 1999 (the "Prior City JCFA"), and the Capistrano Valley Water District ("Capistrano Valley Water District"), the District and the Company have also entered into that certain Joint Community Facilities Agreement dated September 13, 1999 (the "Prior Water District JCFA" and, together with the Prior City JCFA, the "Prior JCFA") with respect to the District. H. In 2002, the Capistrano Valley Water District became a subsidiary of the City. This Agreement supercedes the Prior JCFA. 1. The Parties intend that the District, as amended, will assist in financing the City Facilities by disbursing District bond construction proceeds pursuant to this Agreement in an amount which is estimated at, and shall not exceed $13,800,000, plus investment earnings, if any, thereon (collectively, the "City Facilities Amount") at the written request to the District of the City to finance the construction and/or acquisition of the City Facilities. J. The City is authorized by Section 53313.5 of the Act to assist in the financing of the acquisition and/or construction of the City Facilities and the School District is authorized to assist in the financing of the School Facilities. This Agreement constitutes a joint community facilities agreement, within the meaning of Section 53316.2 of the Act, by and among the City, the Company and the School District, pursuant to which the District, when amended, will be authorized to finance from District bond proceeds the construction and/or acquisition of the City Facilities in the City Facilities Amount and School Facilities as provided in the 2004 Amendment Proceedings. As authorized by Section 53316.6 of the Act, responsibility for constructing, providing and operating the School Facilities is delegated to the School District and responsibility for constructing, providing for and operating the City Facilities is delegated to the City to the extent set forth herein. K. The Company has requested that, upon the deposit of proceeds of District bonds in an amount equal to $13,800,000 into the City Facilities Account (defined below), the Company shall receive credit against those certain fees and charges authorized to be levied by the City in connection with the development of the Property as set forth in Section 9 below. AGREEMENT NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, the parties hereto agree as follows: Recitals. Each of the above recitals is incorporated herein and is true and correct. 2. Proposed Amendment of District. At the request of the Company, the School District has undertaken to amend the District, pursuant to the Petition, to finance the Facilities. The School District will retain, at the Company's expense, the necessary consultants to process the proposed amendments to t he D istrict and the i ssuance o f b onds o f the D istrict ( the "Bonds"), i ncluding an engineer, special tax consultant, bond counsel, appraiser and other consultants deemed necessary by the School District. DOCSOC/ 1032540v5/22508-0049 0 0 3. Sale of Bonds and Use of Proceeds. In the event the District is amended pursuant to the Petition, the Board of Trustees of the School District acting as the legislative body of the District may, in its sole discretion, finance the design, construction and acquisition of School Facilities and the City Facilities by issuing Bonds. If any Bond proceeds are escrowed, after payment of the costs of issuing the Bonds, there shall first be reserved from the Bond construction proceeds $13,818,000 to finance the School Facilities, which amount shall adjust according to the Impact Mitigation Agreement related to Community Facilities District No. 98-1A by and between the School District and the Company (the "Mitigation Agreement"). The District anticipates that proceeds from the sale of District Bonds shall be available for the City Facilities substantially in accordance with this Section 3, however, release of Bond proceeds to the City for City Facilities may be subject to an escrow release test to be established in the bond documents which the District will hereafter enter into with respect to the Bonds (the "Bond Documents"), and the terms of such escrow release test shall be as the District shall determine, in its sole discretion, to be reasonably appropriate in order to comply with the School District's Statement of Local Goals and Policies and municipal bond industry standards for land -secured financings. The District shall maintain records relating to the disbursements of proceeds of the sale of the Bonds. The Company acknowledges that the acquisition of the City Facilities and the amount and timing for the funding of the City Facilities Amount shall be in all respects subject to this Agreement. In no event will an act, or an omission or failure to act, by the City or the District with respect to the disbursement or nondisbursement of funds for School Facilities or the City Facilities subject the District, the School District or the City to pecuniary liability hereunder. The Bonds shall be issued only if in its sole discretion the Board of Trustees determines that all requirements of state and federal law and all School District policies have been satisfied or waived by the School District or the City, as applicable. In no event shall the Company have a right to compel the issuance of the Bonds. 4. Disbursements. (a) Bond proceeds designated for the City Facilities and School Facilities shall be held by the fiscal agent for the District (the "Fiscal Agent") in separate subaccounts of the Project Account of a special fund (the "Acquisition and Construction Fund") to be established in connection with the issuance of the Bonds. After funding costs of issuance of the Bonds, a reserve fund, and capitalized interest for a period of twelve (12) months, or a lesser or greater period requested by the Company and approved by the School District, the remaining proceeds of the Bonds shall be deposited in subaccounts of the Project Account of the Acquisition and Construction Fund designated the "School Facilities Account" and "City Facilities Account" in the following order of priority: (i) $13,818,000 shall deposited in the School Facilities Account, (ii) $13,800,000 shall be deposited in the City Facilities Account and (iii) any remaining net proceeds shall be deposited in the School Facilities Account. The amount to be deposited in the School Facilities Account shall adjust according to the Impact Mitigation Agreement. Investment earnings on amounts in each subaccount of the Acquisition and Construction Fund shall remain in such subaccount until expended for the respective Facilities, except as provided in the following sentence. The amount in the Acquisition and Construction Fund shall at all times be available for the Facilities except to the extent the School District determines interest earnings must be rebated to the United States in accordance with the Internal Revenue Code of 1986, as amended. DOCSOC/ 1032540x5/22508-0049 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 Bonds accruing from the investment of the Bond proceeds requested, from the date of receipt of such Bond proceeds by the City to the date of expenditure by the City of such Bond proceeds for actual legitimate capital costs of the City Facilities. Such remittance, if any, shall occur on the earlier of the date of expenditure of such Bond proceeds or each anniversary date of the transfer of such Bond proceeds from the District to the City. The City agrees that in processing the above disbursements it will comply with all legal requirements for the expenditure of bond proceeds under the Act, as amended, and the Internal Revenue Code of 1986 and any amendments thereto. (d) The City agrees to maintain adequate internal controls over its payment function and to maintain accounting records in accordance with generally accepted accounting procedures. The City will, upon request, provide to the District its annual financial report certified by an independent certified public accountant for purposes of calculating the District's arbitrage rebate obligations. The District shall have the right to conduct its own audit of the City's records at reasonable times and during normal business hours. (e) The City shall submit a request for payment to the Fiscal Agent which shall be in the form attached hereto as Exhibit C, which shall be signed by its City Manager or written designee and which shall be for the exact amount paid or encumbered or to be disbursed as provided in paragraph (d) above by the City for City Facilities costs under paragraph (c) above, which costs shall in no event exceed the City Facilities Amount. Upon receipt of an approved payment request completed in accordance with the terms of this Agreement, the Fiscal Agent shall wire transfer such portion of requested funds as are then available for release pursuant to the Bond Documents to the City's bank account, as directed by the City. 5. Acquisition of City Facilities. (a) Plans and Specifications. The Company acknowledges that none of the City, the School District nor the District has any obligation to pay any amount in excess of the City Facilities Amount, regardless of the cost of City Facilities, and further that the City shall have no obligation to pay any costs of the Acquisition Facility unless and until an amount at least equal to $13,800,000 has been deposited into the City Facilities Account. Company shall be responsible for the preparation of the plans and specifications (the "Plans and Specifications") for the grading of a portion of "A" Street as provided in Exhibit B hereto to be acquired with the proceeds of the Bonds (the "Acquisition Facility"). The Plans and Specifications shall conform to the requirements of the City for the Acquisition Facility and shall be subject to the review and approval by the City. (b) Construction and Inspection of the Acquisition Facility. The Acquisition Facility must be constructed in accordance with the Plans and Specifications as approved by the City. The Company shall be solely responsible for the bidding, contracting and construction of the DOCSOC/ 1032540v5/22508-0049 0 0 Acquisition Facility to be acquired with the proceeds of the Bonds in accordance with the requirements set forth in this Section 5. The District shall have no responsibility whatsoever for the bidding, contracting and/or the construction of the Acquisition Facility. The construction of the Acquisition Facility shall be subject to inspection by the City. Upon the request of the Company, the City shall notify the District and the C ompany i n writing when the Acquisition Facility has been substantially completed in accordance with the Plans and Specifications and when the Acquisition Facility has been finally completed and is ready for acceptance by the City Engineer. The Company represents that (i) prior to approval o f this Agreement at 1 east two (2) b ids were obtained for the grading of the "A" Street right-of-way, (ii) the contract for such grading (the "Grading Contract") was awarded to the lowest bidder, (iii) the Grading Contract substantially complies with the terms of this Agreement, and (iv) the Company will pay prevailing wages for all work performed pursuant to the Grading Contract. The Grading Contract, bid forms and winning bid (collectively, the "Bid Documents") are subject to review and approval or rejection by the City. The City acknowledges that, subject to prior satisfaction of the following conditions precedent: (i) City approval of the Bid Documents, (ii) the contractor to whom the Acquisition Facility contract is awarded shall have paid not less than the prevailing rates of wages for all Acquisition Facility work pursuant to Labor Code Sections 1770, 1773 and 1773. 1, and (iii) Final Completion of the Acquisition Facility, expenditures with respect to such Grading Contract shall be eligible for funding from the City Facilities Account. City hereby affirms that Company's compliance with all provisions of this Section 5(b) ensures that the Acquisition Facility to be acquired with the proceeds of the Bonds shall be constructed as if it had been constructed under the direction and supervision, or under the authority of, the City. For purposes of this Agreement, the Acquisition Facility shall be deemed "substantially completed" when the Company has notified the City that the Acquisition Facility has been completed in accordance with its Plans and Specifications, the City's inspector has inspected the facility, prepared a final "punch list" and has determined that the punch list items required to be completed are items not required for the safe operation of the Acquisition Facility and can therefore be completed after the Acquisition Facility has been accepted by the City. For purposes of this Agreement, Final Completion of the Acquisition Facility shall be deemed to have occurred, notwithstanding the fact that the construction of "A" Street is not then complete, upon acceptance by the City Engineer of the "A" Street grading improvements provided all punch list items have been completed to the satisfaction of the City and all contractors and subcontractors constructing the grading improvements shall have provided lien and material releases. (c) Acquisition and Ownership of the Acquisition Facility. Upon receipt by the District of notification by the City that the Acquisition Facility has been finally completed in accordance with the Plans and Specifications, the Acquisition Facility shall be deemed eligible for acquisition by the District. Simultaneously upon acquisition of the Acquisition Facility by the District, title to the land or, if acceptable to the City, an irrevocable offer of dedication of the land, underlying the Acquisition Facility shall be conveyed to the City. Neither the School District nor the City is not directly or indirectly obligated, indebted or otherwise liable for the payment of the acquisition price, or any portion thereof, of the Acquisition Facility. Upon acceptance of the Acquisition Facility by the City, the City shall incorporate the Acquisition Facility in the City's street system. Following the expiration of any warranty period applicable to the construction of the Acquisition Facility during which time the Company shall be responsible for the maintenance of the Acquisition Facility, the City shall thereafter be responsible DOCSOC/ 1032540v5/22508-0049 0 0 for the maintenance of the Acquisition Facility in accordance with all applicable City maintenance procedures and practices. (d) Payment Requests. The form of payment request to be submitted to City by the Company in requesting payment by the District of the acquisition price or funding with respect to the Acquisition Facility, shall be substantially in the form of Exhibit C-1 hereto. Within ten (10) business days of Company's submission to City of a payment request, City shall determine if the Acquisition Facility has been finally completed and shall either deny or approve the payment request, which approval shall not be unreasonably withheld. If City denies any payment request it shall provide the Company a detailed written explanation describing the reasons or rational for such denial. All denied payment requests may be resubmitted for approval. The Company shall reimburse City for its actual costs incurred in connection with the processing of such payment requests, including the inspection of the Acquisition Facility and such amounts shall be included in the acquisition price paid by the District. The sole source of funds for payment of the acquisition price o r funding w ith respect to the approved Acquisition Facility shall b e the B and proceeds o n deposit in the City Facilities Account, and investment earnings, if any, thereon. 6. Ownership of Facilities. Notwithstanding the fact that some or all of the City Facilities may be constructed in dedicated street rights-of-way or on property which has been or will be dedicated to the City of San Juan Capistrano or any other entity, the City Facilities shall be and remain the property of the City. 7. Indemnification. The School District shall assume the defense of, indemnify and save harmless, the City, its officers, employees and agents, and each and every one of them, from and against all actions, damages, claims, losses or expenses of every type and description to which they may be subjected or put, by reason of, or resulting from, this Agreement, and the design, engineering and construction of the School Facilities. No provision of this Agreement shall in any way limit the extent of the School District's responsibility for payment of damages resulting from the operations of the School District and its contractors; provided, however, that the School District shall not be required to indemnify any person or entity as to damages resulting from negligence or willful misconduct of such person or entity or their agents or employees. The City shall assume the defense of, indemnify and save harmless, the School District, its officers, employees and agents, and each and every one of them, from and against all actions, damages, claims, losses or expenses of every type a nd d escription t o which they m ay b e s ubjected o r p ut, b y r eason o f, o r r esulting from, t his Agreement, and the design, engineering and construction of the City Facilities. No provision of this Agreement shall in any way limit the extent of the City's responsibility for payment of damages resulting from the operations of the City and its contractors; provided, however, that the City shall not be required to indemnify any person or entity as to damages resulting from negligence or willful misconduct of such person or entity or their agents or employees. The Company shall assume the defense of, indemnify and save harmless, School District, the District and the City, their respective officers, employees and agents, and each and every one of them, from and against all actions, damages, claims, losses or expenses of every type and description to which they may be subjected or put, by reason of, or resulting from, any act or omission of Company with respect to this Agreement; provided, however, that the Company shall not be required to indemnify any person or entity as to damages resulting from negligence or willful misconduct of such person or entity or their officers, agents or employees. 6 DOCSOC/ 1032540v5/22508-0049 8. Allocation of Special Taxes. Upon sale and delivery of the Bonds, or such earlier date as the District, in its sole discretion, determines appropriate, the Board of Trustees, as the legislative body of the District, shall annually levy a special tax as provided for in the 2004 Amendment Proceedings. The entire amount of any special tax levied by the District to repay the Bonds, or to fund other obligations, shall be allocated to the District. 9. Fee Credits. The deposit of the following amounts in the City Facilities Account will be made in lieu of, and in full satisfaction of the payment of the following fees and charges due to the City in connection with the development of the Property with up to 416 residential units (collectively, the "Fee Credit Amounts"): Park Fees $ 2,661,384 Affordable Housing Fees 1,800,000 Systems Development Fees (211 and 364) 1,182,668 Agricultural Preservation Fees 242,700 Soils Subsidence Remediation Fees 500,000 Catchment Area Fees 150,000 Water Capacity Fees 1,000,000 Non -Domestic Water Fees 700,000 La Novia Fees 364,050 Sewer Connection Fees 1,580,390 Fair Share of Southbound Ortega Hwy. Offramp 76,979 Fair Share of Northbound Ortega Hwy. Offramp 2,604 Total Fee Credit Amounts $10,260,775 The City shall grant a credit against the foregoing fees owed by the Company, its successors and assigns for the development of up to 416 residential units within the Property when Bond proceeds in the amount of $10,260,775 are deposited in the City Facilities Account. If any of the foregoing fees and charges have been advanced by the Company prior to the deposit of the corresponding amount in the City Facilities Account, such amounts shall be reimbursed to the Company at the time funds of an equal amount are deposited in the City Facilities Account. Once the amount of $10,260,775 has been deposited in the City Facilities Account, the Company, its successors and assigns shall not be required to make any payment for the corresponding fees and charges at the time such fees and charges are otherwise due unless more than 416 residential units are developed within the Property. The Company agrees that in addition to the Fee Credit Amounts, $850,000 (the "Government Facility Amount') shall be reserved in the City Facilities Account for use by the City to fmance other City Facilities, as determined by the City in its sole discretion. The portion of the City Facilities Amount not including the Fee Credit Amounts and the Government Facility Amount shall be available to fund the Acquisition Facility and no fee or charge credit shall be given for such remaining portion of the City Facilities Amount or for the Government Facility Amount, 10. Amendment. This Agreement may be amended at any time but only in writing signed by each party hereto. 7 DOCSOC/ 1032540v5/22508-0049 11. Entire Agreement. This Agreement contains the entire agreement between the parties with respect to the matters provided for herein and supersedes all prior agreements and negotiations between the parties with respect to the subject matter of this Agreement. 12. Notices. Any notice, payment or instrument required or permitted by this Agreement to be given or delivered to either party shall be deemed to have been received when personally delivered or seventy-two hours following deposit of the same in any United States Post Office in California, registered or certified, postage prepaid, addressed as follows: School District/District: Capistrano Unified School District 32972 Calle Perfecto San Juan Capistrano, California 92675 Attn: Associate Superintendent, Facilities Planning City of San Juan Capistrano City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, California 92675 Attn: City Manager Company: SID Partners, Ltd. 2392 Morse Avenue Irvine, California 92614 Attn: Ron Freeman and Bruce Elieff Each party may change its address for delivery of notice by delivering written notice of such change of address to the other parties hereto. 13. Exhibits. All exhibits attached hereto are incorporated into this Agreement by reference. 14. Severability. If any part of this Agreement is held to be illegal or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible. 15. Governing Law. This Agreement and any dispute arising hereunder shall be governed by and interpreted in accordance with the laws of the State of California. 16. Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other parties hereto, or the failure by a party to exercise its rights upon t he d efault o f a nother p arty, s hall n of c onstitute a w aiver o f s uch p arty's right t o i nsist and demand strict compliance by such other parties with the terms of this Agreement thereafter. 17. No Third Party Beneficiaries. No person or entity shall be deemed to be a third party beneficiary hereof, and nothing in this Agreement (either express or implied) is intended to confer upon any person or entity, other than the City, the School District, the District and the Company (and their respective successors and assigns), any rights, remedies, obligations or liabilities under or by reason of this Agreement. DOCS OC/ 103 2540v5/225 08-0049 18. Successors and Assigns. All of the covenants, stipulations, promises, and agreements contained in this Agreement by or on behalf of, or for the benefit of, any of the parties hereto, shall bind or inure to the benefit of any of the successors and assigns of the respective parties; provided, however, that purchasers of completed residential units shall not be deemed to be successors and assigns of the Company for purposes of this Agreement, and shall have no right to enforce any provisions of this Agreement. 19. Singular and Plural; Gender. As used herein, the singular of any word includes the plural, and terms in the masculine gender shall include the feminine. 20. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute but one instrument. 9 DOCSOCA 032540v5/22508-0049 0 0 IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year written below. Date: June 14 12004 ATTEST: By: Clerk of the Bo rd of Trustees of the Capistrano Unified School District AP TRA IFIED SCHOOL DISTRICT President of the Board of Trustees CITY OF SAN JUAN CAPISTRANO By: li v) --T-- ll`� Its: C AJ City Manage ATTEST: A^, By: ` S-1 DOCS00 1032540v5/22508-0049 0 SJD PARTNERS, LTD., a California Limited Partnership By: SJD Development Corp., a California M DOCSOC/ 103254Ov5/22508-0049 0 EXHIBIT A DESCRIPTION OF PROPERTY 0 The real property to be included within Community Facilities District No. 98-1A of the Capistrano Unified School District (Pacifica San Juan): 666-301-01 675-081-04 675-081-10 675-081-14 675-361-01 675-361-08 675-361-09 A-1 I)OCSOC/ 103254ov5/22508-0049 (1) (2) (3) EXHIBIT B DESCRIPTION OF CITY FACILITIES The following improvements are eligible City Facilities: DESCRIPTION A. Constructed by City (fees and charges) Park Improvements $ 2,661,384 Affordable Housing Improvements 1,800,000(1) Systems Development Improvements (211 and 364) 1,182,668 Agricultural Preservation Improvements 242,700 Soils Subsidence Remediation Improvements 500,000 Catchment Area Improvements 150,000 Water Capacity Improvements 1,000,000 Non -Domestic Water Improvements 700,000 La Novia Improvements 364,050(1) Sewer Connection Improvements 1,580,390 Fair Share of Southbound Ortega Hwy. Offramp 76,979 Fair Share of Northbound Ortega Hwy. Offramp 2,604 City Wide Development Improvements 850,000 B. Acquisition Facility(2) "A" Street Grading 2,689,225(3) Total $13,800,000 Represent amounts previously advanced by Company to City as of May 1, 2004 to be reimbursed to Company when City Facilities Account funded. "A" Street grading costs shall be funded upon completion of grading, prior to completion of roadway construction and separate from funding for construction and soft costs for "A" Street. Individual Facilities, if any, may be specified in a written supplement executed by Company and City Engineer. "A" Street grading costs in excess of $2,689,225, but not to exceed $4,716,648 in aggregate grading costs, may be funded from the City Facilities Account to the extent of investment earnings, if any, therein. B-1 DOCSOC/ 1032540v5/22508-0049 0 0 EXHIBIT C DISBURSEMENT REQUEST FORM CITY OF SAN JUAN CAPISTRANO PACIFICA SAN JUAN PLANNED COMMUNITY Community Facilities District No. 98-1A of the Capistrano Unified School District (Pacifica San Juan) ("CFD No. 98 -IA") is hereby requested to pay from the City Facilities Subaccount of the Project Account of the Acquisition and Construction Fund established by that certain Bond Indenture (the "Bond Indenture") entered into by CFD No. 98-1A in connection with its CFD No. 98-1A Series 2004 Special Tax Bonds (the "Bonds"), to the City of San Juan Capistrano (the "City"), as Payee, the sum set forth below in payment of project costs described below. The undersigned certifies that the amount requested has been expended or encumbered for the purposes of acquiring, constructing or completing City Facilities. The amount requested is due and payable under, or is encumbered for the purpose of funding, a purchase order, contract or other authorization with respect to the project costs described below and has not formed the basis of prior request or payment. The City agrees to trace and remit to CFD No. 98-1A all earnings, if any, in excess of the yield on the Bonds accruing from the investment of the amounts requested herein, from the date of receipt by the City of such amounts to the date of expenditure of such amounts by payment thereof to a third party for the costs set forth below. Such remittance, if any, shall be made each year on the earlier of the expenditure of such amounts or the anniversary date of the transfer of the requested amounts by CFD No. 98-1A to the City. Total payments to the City from the Acquisition and Construction Fund have not exceeded $13,800,000 plus investment earnings, if any, on such amount. Description of City Facilities Costs: Amount requested: $ The amount of $ is authorized and payable pursuant to the terms of the Joint Community Facilities Agreement among CFD No. 98-1A, SJD Partners Ltd., and the City of San Juan Capistrano dated as of June 14, 2004. Executed by an authorized representative of each of SJD Partners, Ltd. and the City of San Juan Capistrano. SID PARTNERS, LTD. CITY OF SAN JUAN CAPISTRANO: By: By: Its: Its: Date: Date: C-1 DOCSOC/ 1032540v5/22508-0049 0 0 EXHIBIT C-1 FORM OF ACQUISITION FACILITY PAYMENT REQUEST The undersigned, hereby requests payment in the total amount of $ for the Acquisition Facility (as defined in the Joint Community Facilities Agreement by and among Capistrano Unified School District (the "School District"), City of San Juan Capistrano (the "City") and SID Partners, Ltd. ( the "Owner"), dated June 14, 2004 ( the "Agreement")), all as more fully described in Attachment 1 hereto. In connection with this Payment Request, the undersigned hereby represents and warrants to the City as follows: 1. He(she) is a duly authorized officer of the undersigned, qualified to execute this Payment Request for payment on behalf of the undersigned and is knowledgeable as to the matters set forth herein. .2. All costs of the Acquisition Facility for which payment is requested hereby are actual costs and have not been inflated in any respect. The actual costs for which payment is requested have not been the subject of any prior disbursement request submitted to Community Facilities District No. 98-1 (Pacifica San Juan) of the Capistrano Unified School District (the "CFD"). 3. Supporting documentation (such as third party invoices, lien releases and cancelled checks or other evidence of payment) is attached with respect to each cost for which payment i s requested. 4. The Acquisition Facility for which payment is requested was constructed in accordance with the requirements of the Agreement. 5. The undersigned is in compliance with the terms and provisions of the Agreement and no portion of the amount being requested to be paid was previously paid. 6. The acquisition price for the Acquisition Facility has been calculated in conformance with the terms of the Agreement. 7. Please authorize payment of the acquisition price by the CFD to the following entity(ies), if other than the undersigned, in the amounts or percentages indicated: [Insert names of payees and amounts or percentages] C -I-1 DOCSOC/ 1032540v5/22508-0049 0 w I declare under penalty of perjury that the above representations and warranties are true and correct. SID PARTNERS, LLC: CITY OF SAN JUAN CAPISTRANO: Payment Request Approved for Submission to CFD By: By: Its: Its: Date: DOCS001032540v5/22508-0049 Date: C-1-2 ATTACHMENT 1 SUMMARY OF ACQUISITION FACILITY(IES) TO BE ACQUIRED AS PART OF PAYMENT REQUEST Disbursement Acquisition Facility Actual Costs Requested [List here all Acquisition Facilities which payment is requested, and attach support documentation] C -I-3 DOCSOC/ 1032540v5/22508-0049 ,. Capistrano Unified School District Excellence in Education 32972 Calle Perfecto, San Juan Capistrano, California 92675 Telephone (949) 489-7000/FAX 248-8546 Sincerely, paDavid A. Doomey Associate Superintendent Facilities Planning Enclosure :G USE IS pD E Serving the Southern California communities of Aliso Viejo • Coto de Caza • Dana Point • Ladera Ranch • Laguna Niguel • Las Flores • Mission Viejo • Rancho Santa Margarita • San Clemente • San Juan Capistrano w .capousd.org June 22, 2004 BOARD OF Lr) d Z. A TRUSTEES (St n MIKE DARNOLD president Ms. Meg Monahan';.=, uNi-- MARLENE M. DRAPER City Clerk D Vice President City of San Juan Capistrano SHEILA J. BENECKEnr. 32400 Paseo Adelanto Clerk San Juan Capistrano, CA 92675 JOHN J. CASABIANCA-' SHELIA J. HENNESS Mr. Bruce Elieff CRYSTAL SJD Partners, Ltd. KOCHENDORFER SunCal Companies DR. DUANE E. STIFF 2392 Morse Avenue Irvine, CA 92614 SUPERINTENDENT Denise E. Hering, Esq. DR JAMES A FLEMING Stradling Yocca Carlson & Rauth 660 Newport Center Drive, #1600 DIVISION OF Newport Beach, CA 92660 FACILITIES PLANNING DAVID A. DOOMEY Subject: Joint Community Facilities Agreement Associate Superintendent (CUSD, City of SJC and SJD Partners) CARY BROCKMAN Director BOB SENDZIK Enclosed you will each find one fully executed copy of the above Joint Manager Community Facilities Agreement for your files. Sincerely, paDavid A. Doomey Associate Superintendent Facilities Planning Enclosure :G USE IS pD E Serving the Southern California communities of Aliso Viejo • Coto de Caza • Dana Point • Ladera Ranch • Laguna Niguel • Las Flores • Mission Viejo • Rancho Santa Margarita • San Clemente • San Juan Capistrano w .capousd.org 0 0 JOINT COMMUNITY FACILITIES AGREEMENT among CAPISTRANO UNIFIED SCHOOL DISTRICT and CITY OF SAN JUAN CAPISTRANO relating to COMMUNITY FACILITIES DISTRICT NO. 98-1 OF THE CAPISTRANO UNIFIED SCHOOL DISTRICT (PACIFIC POINT) DOC SOC\655160x2\22508.0025 SD 0 0 JOINT COMMUNITY FACILITIES AGREEMENT THIS JOINT COMMUNITY FACILITIES AGREEMENT (the "Agreement") is entered into effective as of the �e3_ day of 1999, by and among the CAPISTRANO UNIFIED SCHOOL DISTRICT, a publie enti , (the "School District"), and the CITY OF SAN JUAN CAPISTRANO, a municipal corporation (the "City"), and SJD PARTNERS, LTD., a California Limited Partnership (the "Company"), and relates to the proposed formation of COMMUNITY FACILITIES DISTRICT NO. 98-1 OF THE CAPISTRANO UNIFIED SCHOOL DISTRICT (PACIFIC POINT) (the "District"). RECITALS: A. The Company is the owner of all of the land within Assessor's Parcel Numbers listed on Exhibit "A" hereto in the incorporated territory of the City of San Juan Capistrano, State of California (the "Property") and which is proposed to constitute the land within the boundaries of the District. Such boundaries are shown on the map included in Exhibit "A" attached hereto, which is incorporated by reference herein. B. The Company is the developer of the Property and has obtained the necessary development approvals to construct approximately 325-425 residential units, as well as approximately 23 acres of commercial improvements, on the Property and to provide the required infrastructure for such units and improvements, including schools to be owned and operated by the School District (the "School Facilities") and certain roadway and storm drain improvements to be owned and operated by the City which are described in Exhibit B hereto and incorporated by reference herein (the "City Facilities"). The City Facilities and the School Facilities are sometimes collectively referred to herein as the "Facilities". Additionally, the Company has requested that the School District enter into a joint community facilities agreement with the Water District with respect to certain water facilities (collectively, the "Water District Facilities") to be financed by the District. C. It is expected that the cost of the School Facilities will exceed the cost of the City Facilities and Water District Facilities, therefore, the School District is permitted to have primary responsibility for the formation and administration of the District. D. The Company has requested the Board of Trustees of the School District (the "Board of Trustees") to form and establish the District pursuant to the provisions of the Mello -Roos Community Facilities Act of 1982, Chapter 2.5 (commencing with Section 53311) of Part 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 D0CS0C\655160v2\22508.0025 0 0 exceed, $2,200,000 (the "City Facilities Amount") at the written request to the District of the City to finance the construction and/or acquisition of the City Facilities. G. The City is authorized by Section 53313.5 of the Act to assist in the financing of the acquisition and/or construction of the City Facilities and the School District is authorized to assist in the financing of the School Facilities. This Agreement constitutes a joint community facilities agreement, within the meaning of Section 53316.2 of the Act, by and among the City, the Company and the School District, pursuant to which the District when formed will be authorized to finance the construction and/or acquisition of the City Facilities in the not to exceed amount of $2,200,000 and to finance the School Facilities in the approximate amount of $7,000,000. As authorized by Section 53316.6 of the Act, responsibility for constructing, providing and operating the School Facilities is delegated to the School District and responsibility for constructing, providing for and operating the City Facilities is delegated to the City to the extent set forth herein. H. Pursuant to Government Code Section 53314.9, the Board of Trustees of the School District is authorized to accept advances of funds from any source, including, but not limited to, private persons or private entities, and may provide, by resolution, for the use of those funds for any authorized purposes, including, but not limited to, paying any costs incurred by the local agency in creating a district. The legislative body may also enter into an agreement, by resolution, with the person or entity advancing the funds, to repay all or a portion of the funds advanced provided that certain conditions are met. The conditions to be satisfied require that (1) the proposal to repay the funds must be included in the resolution of intention for the proposed district and in the resolution of formation for the proposed district and (2) that any proposed special tax is approved by the qualified electors of the district pursuant to the Act and that if not approved any funds which have not been committed for any authorized purpose by the time of the election must be returned to the person or entity advancing funds. 1. The parties hereto intend to have the District assist in financing the City Facilities by transferring to the City a portion of District Bond construction proceeds, in accordance with the terms of this Agreement and pursuant to the Act. Under the terms set forth herein, the District will transfer to the City up to $2,200,000 in District Bond proceeds (the "District Contribution"). AGREEMENT NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, the parties hereto agree as follows: Recitals. Each of the above recitals is incorporated herein and is true and correct. 2. Proposed Formation of District. At the request of the Company, the School District will undertake to analyze the appropriateness of forming a community facilities district to finance the Facilities. The School District will retain, at the Company's expense, the necessary consultants to analyze the proposed formation of the District, including an engineer, special tax consultant, bond counsel, appraiser and other consultants deemed necessary by the School District. 3. Sale of Bonds and Use of Proceeds. In the event the District is formed, the Board of Trustees of the School District acting as the legislative body of the District may, in its sole discretion, finance the design, construction and acquisition of the School Facilities and the City Facilities by issuing bonds (the "Bonds"). If any Bond proceeds are escrowed, after payment of the costs of DOCSOC\655160v2\22508.0025 issuing the Bonds, there shall first be reserved from the Bond construction proceeds $7,000,000 to finance the School Facilities. The District anticipates that proceeds from the sale of District Bonds shall be available for the City Facilities substantially in accordance with this Section 3, however, release of Bond proceeds to the City for City Facilities may be subject to escrow release tests to be established in the bond documents which the District will hereafter enter into with respect to the Bonds (the "Bond Documents"), and the terms of such escrow release test shall be as the District shall determine, in its sole discretion, to be reasonably appropriate in order to comply with the School District's Statement of Local Goals and Policies and municipal bond industry standards for land -secured financings. The District shall maintain records relating to the disbursements of proceeds of the sale of the District Bonds. The Company acknowledges that the acquisition of the City Facilities, including the amount and timing for the delivery of all funding, including the District Contribution, required for the City Facilities shall be in all respects subject to the sole discretion and approval of the City and the School District, as applicable. In no event will an act, or an omission or failure to act, by the City or the District with respect to the disbursement or nondisbursement of the District Contribution or by the District with respect to the provision of any other funding for the School Facilities or the City Facilities subject the District, the School District or the City to pecuniary liability hereunder. The Bonds shall be issued only if in its sole discretion the Board of Trustees determines that all requirements of state and federal law and all School District policies and any applicable City policies have been satisfied or in the case of the policies waived by the School District or the City, as applicable. In no event shall the Company have a right to compel the issuance of the Bonds. 4. Disbursements. (a) District Bond proceeds designated for the City Facilities shall be held, together with all District Bond proceeds designated for the acquisition and/or construction of School Facilities, by the fiscal agent for the District (the "Fiscal Agent") in a special fund (the "Acquisition and Construction Fund") which shall be invested by the Fiscal Agent and earn and accumulate its own interest. The District shall designate in the Acquisition and Construction Fund an amount equal to the District Contribution as funds available solely for City Facilities, and all moneys in the Acquisition and Construction Fund designated for the City Facilities shall at all times be available for the City Facilities except to the extent the School District determines interest earnings must be rebated to the United States in accordance with the Internal Revenue Code of 1986, as amended. (b) The Fiscal Agent shall make disbursements from the Acquisition and Construction Fund in accordance with the terms of this Agreement and neither the School District nor the District shall be responsible to the City for costs incurred by the City as a result of withheld or delayed payments. (c) The City agrees that prior to requesting payment from the District it shall review and approve all costs included in its request and (a) will have already paid such costs of City Facilities from its own funds or shall have prepared a check for disbursement which will be mailed or hand delivered within 48 hours of receipt of District funds or (b) will have already encumbered the funds requested and will trace and remit to the District all earnings, if any, by the City in excess of the yield on the applicable District Bonds accruing from the investment of the District Bond proceeds requested, from the date of receipt of such District Bond proceeds by the City to the date of 4 DOCSOC\655160x2\22508.0025 • 0 expenditure by the City of such District Bond proceeds for actual legitimate capital costs of the City Facilities. Such remittance, if any, shall occur on the earlier of the date of expenditure of such District Bond proceeds or each anniversary date of the transfer of such District Bond proceeds from the District to the City. The City agrees that in processing the above disbursements it will comply with all legal requirements for the expenditure of bond proceeds under the Act, as amended, and the Internal Revenue Code of 1986 and any amendments thereto. (d) The City agrees to maintain adequate internal controls over its payment function and to maintain accounting records in accordance with generally accepted accounting procedures. The City will, upon request, provide to the District its annual financial report certified by an independent Certified Public Accountant for purposes of calculating the District's arbitrage rebate obligations. The District shall have the right to conduct its own audit of the City's records at reasonable times and during normal business hours. (e) The City shall submit a request for payment to the Fiscal Agent which shall be in the form attached hereto as Exhibit "C", which shall be signed by its City Manager or written designee and which shall be for the exact amount paid or encumbered or to be disbursed as provided in paragraph (d) above by the City for City Facilities costs under paragraph (c) above, which costs shall in no event exceed the District Contribution of $2,200,000. Upon receipt of an approved payment request completed in accordance with the terms of this Agreement, the Fiscal Agent shall wire transfer such portion of requested funds as are then available for release pursuant to the Bond Documents to the City's bank account, as directed by the City. 5, Construction. The City will complete the plans and specifications for construction of the City Facilities (hereinafter the "Plans and Specifications") in a form and substance which is satisfactory to the City. The Company will design and construct the City Facilities in conformance with the City's Plans and Specifications. The Company acknowledges that none of the City, the School District nor the District has any obligation to pay any amount in excess of the District Contribution for the City Facilities, regardless of the cost to construct the City Facilities. The Company agrees hereby that it will be solely responsible to pay any and all City Facilities costs in excess of the District Contribution. 6. Ownership of Facilities. Notwithstanding the fact that some or all of the City Facilities may be constructed in dedicated street rights-of-way or on property which has been or will be dedicated to the City of San Juan Capistrano or any other entity, the City Facilities shall be and remain the property of the City. 7. Indemnification. The School District shall assume the defense of, indemnify and save harmless, the City, its officers, employees and agents, and each and every one of them, from and against all actions, damages, claims, losses or expenses of every type and description to which they may be subjected or put, by reason of, or resulting from, this Agreement, and the design, engineering and construction of the School Facilities. No provision of this Agreement shall in any way limit the extent of the School District's responsibility for payment of damages resulting from the operations of the School District and its contractors; provided, however, that the School District shall not be required to indemnify any person or entity as to damages resulting from negligence or willful misconduct of such person or entity or their agents or employees. The City shall assume the defense of, indemnify and save harmless, the School District, its officers, employees and agents, and each and every one of them, from and against all actions, damages, claims, losses or expenses of every type and description to which they may be subjected or put, by reason of, or resulting from, this 5 DOCSOC\655160v2122508.0025 0 0 Agreement, and the design, engineering and construction of the City Facilities. No provision of this Agreement shall in any way limit the extent of the City's responsibility for payment of damages resulting from the operations of the City and its contractors; provided, however, that the City shall not be required to indemnify any person or entity as to damages resulting from negligence or willful misconduct of such person or entity or their agents or employees. 8. Disclosure. The Company shall cooperate with the District and the School District in complying with the requirements of Rule 15cl2-12 of the Securities and Exchange Commission in connection with the issuance and sale of the Bonds. The Company shall provide information to the District and the School District regarding its operations and financial condition, including, if available, an audited financial statement for its most recently completed fiscal year, for inclusion in the preliminary official statement and the final official statement for the Bonds. The Company acknowledges that, due to the extent of its initial property ownership in the District, it will be an "obligated person" for purposes of compliance with Rule 1562-12(b)(5) of the Securities and Exchange Commission and that it will therefore be necessary that Company enter into a continuing disclosure undertaking that so long as it remains an obligated person it will annually, at the time specified in such undertaking, provide information to the District and the School District regarding the Company's financial condition, including, if available, audited financial statements, to be included in the annual reports which the District will file with the Nationally Recognized Municipal Securities Repositories which are identified by the Securities and Exchange Commission and any state information depository that may be designated for the State of California, as required by that rule. The Company further acknowledges that it will be an obligated person pursuant to such rule as long as it owns property within the District that is responsible for the payment of annual special tax installments which represent 10 percent or more of the annual debt service on the outstanding Bonds. 9. Allocation of Special Taxes. Upon sale and delivery of the Bonds, or such earlier date as the District, in its sole discretion, determines appropriate, the Board of Trustees, as the legislative body of the District, shall annually levy a special tax as provided for in the formation proceedings of the District. The entire amount of any special tax levied by the District to repay the Bonds, or to fund other obligations, shall be allocated to the District. 10. Amendment. This Agreement may be amended at any time but only in writing signed by each party hereto. 11. Entire Agreement. This Agreement contains the entire agreement between the parties with respect to the matters provided for herein and supersedes all prior agreements and negotiations between the parties with respect to the subject matter of this Agreement. 12. Notices. Any notice, payment or instrument required or permitted by this Agreement to be given or delivered to either party shall be deemed to have been received when personally delivered or seventy-two hours following deposit of the same in any United States Post Office in California, registered or certified, postage prepaid, addressed as follows: DOCS00655160v2122508.0025 School District/District: Capistrano Unified School District 32972 Calle Perfecto San Juan Capistrano, California 92675 Attn: Assistant Superintendent, Facilities Planning City of San Juan Capistrano City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, California 92675 Attn: City Manager Company: SJD Partners, Ltd. 5109 E. La Palma, Suite D Anaheim, California 92807 Each party may change its address for delivery of notice by delivering written notice of such change of address to the other parties hereto. 13. Exhibits. All exhibits attached hereto are incorporated into this Agreement by reference. 14. Severability. If any part of this Agreement is held to be illegal or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible. 15. Governing Law. This Agreement and any dispute arising hereunder shall be governed by and interpreted in accordance with the laws of the State of California. 16. Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other parties hereto, or the failure by a party to exercise its rights upon the default of another party, shall not constitute a waiver of such party's right to insist and demand strict compliance by such other parties with the terms of this Agreement thereafter. 17. No Third Party Beneficiaries. No person or entity shall be deemed to be a third party beneficiary hereof, and nothing in this Agreement (either express or implied) is intended to confer upon any person or entity, other than the City, the School District, the District and the Company (and their respective successors and assigns), any rights, remedies, obligations or liabilities under or by reason of this Agreement. 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. DOCSO0655160v2\22508.0025 0 0 IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year written below. Date: September 13, 1999 CAPISTRANO UNIFIED SCHOOL DISTRICT hh[it rl/kP 2n President of the Board of Trustee ATTEST: By: lerk of the Board of Trustees of the Capistrano Unified School District ATTEST: �,�wmi_J S-1 DOCSOC\655160x2=508.0025 SJD PARTNERS, LTD., a California Limited Partnership By: SJD Development Corp., a California Corporation, General Partner By: S-2 DOCSOC%55164v3\22508.0025 Todd Kurtin, Chief Financial Officer & Secretary EXHIBIT A DESCRIPTION OF PROPERTY The real property to be included within Community Facilities District No. 98-1 of the Capistrano Unified School District (Pacific Point): 666-301-01 666-301-09 675-081-04 675-081-10 675-081-14 675-361-01 675-36I-04 675-361-05 A-1 DOCSOC\655160v2\2250&.0025 • 0 EXHIBIT B DESCRIPTION OF CITY FACILITIES The following improvements are eligible for acquisition as City Facilities: DESCRIPTION Roadway Improvements Signalization @ Camino Las Ramblas & Via California Valle Road Between I-15 Ramps & Existing Terminus Widening Valle Road Between San Juan Creek & I-5 Terminus Intersection & Signals @ San Juan Creek Road & Valle Road Intersection & Signals @ I-5 & Valle Road Intersection Imps. @ San Juan Creek & Camino Capistrano Rechannelization & Signal Modi£ @ Camino Capistrano & I-5 Ramps Reimbursement for La Novia Avenue Improvements Widening La Novia for Secondary Standards From Valle Rd. to 2,500 LF East Storm Drain Improvements New Channel Inlet R -R Undercrossing Extend 78" RCP D0CS0C%55160v2\22508.0025 EXHIBIT C DISBURSEMENT REQUEST FORM CITY OF SAN JUAN CAPISTRANO PACIFIC POINT PLANNED COMMUNITY Community Facilities District No. 98-1 of the Capistrano Unified School District (Pacific Point) ("CFD No. 98-1") 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. 98-1 Series 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. 98-1 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. 98-I to the City. Total payments to the City from the Acquisition and Construction Fund have not exceeded $2,200,000. 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. 98-1, SJD Partners Ltd., and the City of San Juan Capistrano dated as of , 1999. Executed by an authorized representative of the City of San Juan Capistrano. By: Name: Title: Date: Request No C-1 DOCS0065516M\22508.0025 32400 PASEO ADELANTO SAN JUAN CAPISTRANO, CA 9267$ (949) 493-1171 (949) 493-1053 FAX Agnew. sanjuancaplstrano.org ;A1 1776 HIAAAMAIfA • fsraeusAfe � 1961 1776 TRANSMITTAL MEMBERS OF THE CITY COUNCIL SAM ALLEVATO DIANE L. BATHGATE WYATT HART JOE SOTO DAVID M. SWERDLIN TO: Dennis Hering, Stradling, Yocca, Carlson & Rauth 660 Newport Center Drive, Ste 1600 Newport Beach, CA 92660 FROM: Meg Monahan, City Clerk RE: Joint Community Facilities Agreemeq USD, City of SJC & SJD Partners) DATE: June 4, 2004 Enclosed, please find (4) original executed agreements as approved by the City Council on June 1, 2004. Please return (1) fully executed agreement to my attention when approved by the remaining parties. Thank you. Cc: Cynthia L. Russell, Administrative Services Director San Juan Capistrano: Preserving the Past to Enhance the Future 0 AMENDED AND RESTATED JOINT COMMUNITY FACILITIES AGREEMENT among CAPISTRANO UNIFIED SCHOOL DISTRICT and CITY OF SAN JUAN CAPISTRANO and SID PARTNERS, LTD. relating to COMMUNITY FACILITIES DISTRICT NO. 98 -IA OF THE CAPISTRANO UNIFIED SCHOOL DISTRICT (PACIFICA SAN JUAN) DOCSOG 1032540v5/22508-0049 0 0 AMENDED AND RESTATED JOINT COMMUNITY FACILITIES AGREEMENT THIS AMENDED AND RESTATED JOINT COMMUNITY FACILITIES AGREEMENT (the "Agreement") is entered into effective as of the 14`' day of June, 2004, by and among the CAPISTRANO UNIFIED SCHOOL DISTRICT, a public entity, (the "School District"), and the CITY OF SAN JUAN CAPISTRANO, a municipal corporation (the "City"), and SID PARTNERS, LTD., a California limited partnership (the "Company"), and relates to COMMUNITY FACILITIES DISTRICT NO. 98 -IA OF THE CAPISTRANO UNIFIED SCHOOL DISTRICT (PACIFICA SAN JUAN), as amended on June 14, 2004, COMMUNITY FACILITIES DISTRICT NO. 98-1A OF THE CAPISTRANO UNIFIED SCHOOL DISTRICT (PACIFICA SAN JUAN) (the "District"). RECITALS: A. The Company is the owner of all of the land within Assessor's Parcel Numbers listed on Exhibit A hereto in the incorporated territory of the City of San Juan Capistrano, State of California (the "Property") and which is proposed to constitute the land within the boundaries of the District as amended pursuant to the 2004 Amendment Proceedings (defined below). Such boundaries are shown on the map included in Exhibit A attached hereto, which is incorporated by reference herein. B. The Company is the developer of the Property and has obtained the necessary legislative approvals to construct 416 residential units on the Property and to provide the required infrastructure for such units. C. The Company has heretofore requested the Board of Trustees of the School District (the "Board of Trustees") to form and establish the District, and, pursuant to Company's Petition to the School District dated February 26, 2004 (the "Petition"), to amend, the District pursuant to the provisions of the Mello -Roos Community Facilities Act of 1982, Chapter 2.5 (commencing with Section 5 3311) o f P art 1 of D ivision 2 o f Title 5 o f t he C alifornia G overnment C ode ( the "Act"). The School District and the District are currently undertaking proceedings to amend the District pursuant to the Petition, which proceedings shall be collectively referred to herein as the "2004 Amendment Proceedings." D. The District, as amended, is expected to be authorized to finance schools to be owned and operated by the School District (the "School Facilities") and certain improvements to be owned and operated by the City which are described in Exhibit B hereto and incorporated by reference herein (the "City Facilities"). The City Facilities and the School Facilities are sometimes collectively referred to herein, collectively, as the "Facilities". E. It is expected that the cost of the School Facilities will exceed the cost of the City Facilities, therefore, the School District is permitted to have primary responsibility for the formation and administration of the District. F. The provision of the School Facilities and the City Facilities is necessitated by the development of the land within the District and the parties hereto find and determine that the residents of the City, the School District and the District will be benefited by the construction and/or DOCS00 1032540v5/22508-0049 0 0 acquisition of the City Facilities and the School Facilities and that this Agreement is beneficial to the interests of such residents. G. The parties hereto (the "Parties") have previously entered into that certain Joint Community Facilities Agreement dated September 13, 1999 (the "Prior City JCFA"), and the Capistrano Valley Water District ("Capistrano Valley Water District"), the District and the Company have also entered into that certain Joint Community Facilities Agreement dated September 13, 1999 (the "Prior Water District JCFA" and, together with the Prior City JCFA, the "Prior JCFA") with respect to the District. H. In 2002, the Capistrano Valley Water District became a subsidiary of the City. This Agreement supercedes the Prior JCFA. I. The Parties intend that the District, as amended, will assist in financing the City Facilities by disbursing District bond construction proceeds pursuant to this Agreement in an amount which is estimated at, and shall not exceed $13,800,000, plus investment earnings, if any, thereon (collectively, the "City Facilities Amount") at the written request to the District of the City to finance the construction and/or acquisition of the City Facilities. J. The City is authorized by Section 53313.5 of the Act to assist in the financing of the acquisition and/or construction of the City Facilities and the School District is authorized to assist in the financing of the School Facilities. This Agreement constitutes a joint community facilities agreement, within the meaning of Section 53316.2 of the Act, by and among the City, the Company and the School District, pursuant to which the District, when amended, will be authorized to finance from District bond proceeds the construction and/or acquisition of the City Facilities in the City Facilities Amount and School Facilities as provided in the 2004 Amendment Proceedings. As authorized by Section 53316.6 of the Act, responsibility for constructing, providing and operating the School Facilities is delegated to the School District and responsibility for constructing, providing for and operating the City Facilities is delegated to the City to the extent set forth herein. K. The Company has requested that, upon the deposit of proceeds of District bonds in an amount equal to $13,800,000 into the City Facilities Account (defined below), the Company shall receive credit against those certain fees and charges authorized to be levied by the City in connection with the development of the Property as set forth in Section 9 below. AGREEMENT NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, the parties hereto agree as follows: Recitals. Each of the above recitals is incorporated herein and is true and correct. 2. Proposed Amendment of District. At the request of the Company, the School District has undertaken to amend the District, pursuant to the Petition, to finance the Facilities. The School District will retain, at the Company's expense, the necessary consultants to process the proposed amendments to the D istrict a nd the i ssuance o f b onds o f the D istrict ( the " Bonds"), i ncluding an engineer, special tax consultant, bond counsel, appraiser and other consultants deemed necessary by the School District. DOCSOC/ 1032540v5/22508-0049 0 0 3. Sale of Bonds and Use of Proceeds. In the event the District is amended pursuant to the Petition, the Board of Trustees of the School District acting as the legislative body of the District may, in its sole discretion, finance the design, construction and acquisition of School Facilities and the City Facilities by issuing Bonds. If any Bond proceeds are escrowed, after payment of the costs of issuing the Bonds, there shall first be reserved from the Bond construction proceeds $13,818,000 to finance the School Facilities, which amount shall adjust according to the Impact Mitigation Agreement related to Community Facilities District No. 98-1A by and between the School District and the Company (the "Mitigation Agreement"). The District anticipates that proceeds from the sale of District Bonds shall be available for the City Facilities substantially in accordance with this Section 3, however, release of Bond proceeds to the City for City Facilities may be subject to an escrow release test to be established in the bond documents which the District will hereafter enter into with respect to the Bonds (the "Bond Documents"), and the terms of such escrow release test shall be as the District shall determine, in its sole discretion, to be reasonably appropriate in order to comply with the School District's Statement of Local Goals and Policies and municipal bond industry standards for land -secured financings. The District shall maintain records relating to the disbursements of proceeds of the sale of the Bonds. The Company acknowledges that the acquisition of the City Facilities and the amount and timing for the funding of the City Facilities Amount shall be in all respects subject to this Agreement. In no event will an act, or an omission or failure to act, by the City or the District with respect to the disbursement or nondisbursement of funds for School Facilities or the City Facilities subject the District, the School District or the City to pecuniary liability hereunder. The Bonds shall be issued only if in its sole discretion the Board of Trustees determines that all requirements of state and federal law and all School District policies have been satisfied or waived by the School District or the City, as applicable. In no event shall the Company have a right to compel the issuance of the Bonds. 4. Disbursements. (a) Bond proceeds designated for the City Facilities and School Facilities shall be held by the fiscal agent for the District (the "Fiscal Agent") in separate subaccounts of the Project Account of a special fund (the "Acquisition and Construction Fund") to be established in connection with the issuance of the Bonds. After funding costs of issuance of the Bonds, a reserve fund, and capitalized interest for a period of twelve (12) months, or a lesser or greater period requested by the Company and approved by the School District, the remaining proceeds of the Bonds shall be deposited in subaccounts of the Project Account of the Acquisition and Construction Fund designated the "School Facilities Account" and "City Facilities Account" in the following order of priority: (i) $13,818,000 shall deposited in the School Facilities Account, (ii) $13,800,000 shall be deposited in the City Facilities Account and (iii) any remaining net proceeds shall be deposited in the School Facilities Account. The amount to be deposited in the School Facilities Account shall adjust according to the Impact Mitigation Agreement. Investment earnings on amounts in each subaccount of the Acquisition and Construction Fund shall remain in such subaccount until expended for the respective Facilities, except as provided in the following sentence. The amount in the Acquisition and Construction Fund shall at all times be available for the Facilities except to the extent the School District determines interest earnings must be rebated to the United States in accordance with the Internal Revenue Code of 1986, as amended. 3 DOCSOC/ 1032540v5/22508-0049 0 9 (b) The Fiscal Agent shall make disbursements from the Acquisition and Construction Fund in accordance with the terms of this Agreement and neither the School District nor the District shall be responsible to the City for costs incurred by the City as a result of withheld or delayed payments. (c) The City agrees that prior to requesting payment from the District it shall review and approve all costs included in its request and (a) will have already paid such costs of City Facilities from its own funds or shall have prepared a check for disbursement which will be mailed or hand delivered within 48 hours of receipt of District funds or (b) will have already encumbered the funds requested and will trace and remit to the District all earnings, if any, by the City in excess of the yield on the applicable Bonds accruing from the investment of the Bond proceeds requested, from the date of receipt of such Bond proceeds by the City to the date of expenditure by the City of such Bond proceeds for actual legitimate capital costs of the City Facilities. Such remittance, if any, shall occur on the earlier of the date of expenditure of such Bond proceeds or each anniversary date of the transfer of such Bond proceeds from the District to the City. The City agrees that in processing the above disbursements it will comply with all legal requirements for the expenditure of bond proceeds under the Act, as amended, and the Internal Revenue Code of 1986 and any amendments thereto. (d) The City agrees to maintain adequate internal controls over its payment function and to maintain accounting records in accordance with generally accepted accounting procedures. The City will, upon request, provide to the District its annual financial report certified by an independent certified public accountant for purposes of calculating the District's arbitrage rebate obligations. The District shall have the right to conduct its own audit of the City's records at reasonable times and during normal business hours. (e) The City shall submit a request for payment to the Fiscal Agent which shall be in the form attached hereto as Exhibit C, which shall be signed by its City Manager or written designee and which shall be for the exact amount paid or encumbered or to be disbursed as provided in paragraph (d) above by the City for City Facilities costs under paragraph (c) above, which costs shall in no event exceed the City Facilities Amount. Upon receipt of an approved payment request completed in accordance with the terms of this Agreement, the Fiscal Agent shall wire transfer such portion of requested funds as are then available for release pursuant to the Bond Documents to the City's bank account, as directed by the City. Acquisition of City Facilities. (a) Plans and Specifications. The Company acknowledges that none of the City, the School District nor the District has any obligation to pay any amount in excess of the City Facilities Amount, regardless of the cost of City Facilities, and further that the City shall have no obligation to pay any costs of the Acquisition Facility unless and until an amount at least equal to $13,800,000 has been deposited into the City Facilities Account. Company shall be responsible for the preparation of the plans and specifications (the "Plans and Specifications") for the grading of a portion of "A" Street as provided in Exhibit B hereto to be acquired with the proceeds of the Bonds (the "Acquisition Facility"). The Plans and Specifications shall conform to the requirements of the City for the Acquisition Facility and shall be subject to the review and approval by the City. (b) Construction and Inspection of the Acquisition Facility. The Acquisition Facility must be constructed in accordance with the Plans and Specifications as approved by the City. The Company shall be solely responsible for the bidding, contracting and construction of the DOCSOC/ 1032540v5/22508-0049 0 0 Acquisition Facility to be acquired with the proceeds of the Bonds in accordance with the requirements set forth in this Section 5. The District shall have no responsibility whatsoever for the bidding, contracting and/or the construction of the Acquisition Facility. The construction of the Acquisition Facility shall be subject to inspection by the City. Upon the request of the Company, the City s hall n otify t he D istrict and the C ompany i n writing w hen t he A cquisition F acility h as b een substantially completed in accordance with the Plans and Specifications and when the Acquisition Facility has been finally completed and is ready for acceptance by the City Engineer. The Company represents t hat (i) prior t o a pproval o f t his A greement a t l east t wo ( 2) b ids were o btained for t he grading of the "A" Street right-of-way, (ii) the contract for such grading (the "Grading Contract") was awarded to the lowest bidder, (iii) the Grading Contract substantially complies with the terms of this Agreement, and (iv) the Company will pay prevailing wages for all work performed pursuant to the Grading Contract. The Grading Contract, bid forms and winning bid (collectively, the "Bid Documents") are subject to review and approval or rejection by the City. The City acknowledges that, subject to prior satisfaction of the following conditions precedent: (i) City approval of the Bid Documents, (ii) the contractor to whom the Acquisition Facility contract is awarded shall have paid not less than the prevailing rates of wages for. all Acquisition Facility work pursuant to Labor Code Sections 1770, 1773 and 1773.1, and (iii) Final Completion of the Acquisition Facility, expenditures with respect to such Grading Contract shall be eligible for funding from the City Facilities Account. City hereby affirms that Company's compliance with all provisions of this Section 5(b) ensures that the Acquisition Facility to be acquired with the proceeds of the Bonds shall be constructed as if it had been constructed under the direction and supervision, or under the authority of, the City. For purposes of this Agreement, the Acquisition Facility shall be deemed "substantially completed" when the Company has notified the City that the Acquisition Facility has been completed in accordance with its Plans and Specifications, the City's inspector has inspected the facility, prepared a final "punch list" and has determined that the punch list items required to be completed are items not required for the safe operation of the Acquisition Facility and can therefore be completed after the Acquisition Facility has been accepted by the City. For purposes of this Agreement, Final Completion of the Acquisition Facility shall be deemed to have occurred, notwithstanding the fact that the construction of "A" Street is not then complete, upon acceptance by the City Engineer of the "A" Street grading improvements provided all punch list items have been completed to the satisfaction of the City and all contractors and subcontractors constructing the grading improvements shall have provided lien and material releases. (c) Acquisition and Ownership of the Acquisition Facility. Upon receipt by the District of notification by the City that the Acquisition Facility has been finally completed in accordance with the Plans and Specifications, the Acquisition Facility shall be deemed eligible for acquisition by the District. Simultaneously upon acquisition of the Acquisition Facility by the District, title to the land or, if acceptable to the City, an irrevocable offer of dedication of the land, underlying the Acquisition Facility shall be conveyed to the City. Neither the School District nor the City is not directly or indirectly obligated, indebted or otherwise liable for the payment of the acquisition price, or any portion thereof, of the Acquisition Facility. Upon acceptance of the Acquisition Facility by the City, the City shall incorporate the Acquisition Facility in the City's street system. Following the expiration of any warranty period applicable to the construction of the Acquisition Facility during which time the Company shall be responsible for the maintenance of the Acquisition Facility, the City shall thereafter be responsible 5 DOCSOC/ 1032540v5/22508-0049 0 0 for the maintenance of the Acquisition Facility in accordance with all applicable City maintenance procedures and practices. (d) Payment Requests. The form of payment request to be submitted to City by the Company in requesting payment by the District of the acquisition price or funding with respect to the Acquisition Facility, shall be substantially in the form of Exhibit C-1 hereto. Within ten (10) business days of Company's submission to City of a payment request, City shall determine if the Acquisition Facility has been finally completed and shall either deny or approve the payment request, which approval shall not be unreasonably withheld. If City denies any payment request it shall provide the Company a detailed written explanation describing the reasons or rational for such denial. All denied payment requests may be resubmitted for approval. The Company shall reimburse City for its actual costs incurred in connection with the processing of such payment requests, including the inspection of the Acquisition Facility and such amounts shall be included in the acquisition price paid by the District. The sole source of funds for payment of the acquisition price or funding with respect to the approved Acquisition Facility shall be the B and proceeds on deposit in the City Facilities Account, and investment earnings, if any, thereon. 6. Ownership of Facilities. Notwithstanding the fact that some or all of the City Facilities may be constructed in dedicated street rights-of-way or on property which has been or will be dedicated to the City of San Juan Capistrano or any other entity, the City Facilities shall be and remain the property of the City. 7. Indemnification. The School District shall assume the defense of, indemnify and save harmless, the City, its officers, employees and agents, and each and every one of them, from and against all actions, damages, claims, losses or expenses of every type and description to which they may be subjected or put, by reason of, or resulting from, this Agreement, and the design, engineering and construction of the School Facilities. No provision of this Agreement shall in any way limit the extent of the School District's responsibility for payment of damages resulting from the operations of the School District and its contractors; provided, however, that the School District shall not be required to indemnify any person or entity as to damages resulting from negligence or willful misconduct of such person or entity or their agents or employees. The City shall assume the defense of, indemnify and save harmless, the School District, its officers, employees and agents, and each and every one of them, from and against all actions, damages, claims, losses or expenses of every type a nd d escription t o which they m ay b e s ubjected o r p ut, b y r eason o f, o r r esulting from, t his Agreement, and the design, engineering and construction of the City Facilities. No provision of this Agreement shall in any way limit the extent of the City's responsibility for payment of damages resulting from the operations of the City and its contractors; provided, however, that the City shall not be required to indemnify any person or entity as to damages resulting from negligence or willful misconduct of such person or entity or their agents or employees. The Company shall assume the defense of, indemnify and save harmless, School District, the District and the City, their respective officers, employees and agents, and each and every one of them, from and against all actions, damages, claims, losses or expenses of every type and description to which they may be subjected or put, by reason of, or resulting from, any act or omission of Company with respect to this Agreement; provided, however, that the Company shall not be required to indemnify any person or entity as to damages resulting from negligence or willful misconduct of such person or entity or their officers, agents or employees. 6 DOCSOC/ 1032540v5/22508-0049 8. Allocation of Special Taxes. Upon sale and delivery of the Bonds, or such earlier date as the District, in its sole discretion, determines appropriate, the Board of Trustees, as the legislative body of the. District, shall annually levy a special tax as provided for in the 2004 Amendment Proceedings. The entire amount of any special tax levied by the District to repay the Bonds, or to fund other obligations, shall be allocated to the District. 9. Fee Credits. The deposit of the following amounts in the City Facilities Account will be made in lieu of, and in full satisfaction of the payment of the following fees and charges due to the City in connection with the development of the Property with up to 416 residential units (collectively, the "Fee Credit Amounts"): Park Fees $ 2,661,384 Affordable Housing Fees 1,800,000 Systems Development Fees (211 and 364) 1,182,668 Agricultural Preservation Fees 242,700 Soils Subsidence Remediation Fees 500,000 Catchment Area Fees 150,000 Water Capacity Fees 1,000,000 Non -Domestic Water Fees 700,000 La Novia Fees 364,050 Sewer Connection Fees 1,580,390 Fair Share of Southbourid Ortega Hwy. Offramp 76,979 Fair Share of Northbound Ortega Hwy. Offramp 2.604 Total Fee Credit Amounts $10,260,775 The City shall grant a credit against the foregoing fees owed by the Company, its successors and assigns for the development of up to 416 residential units within the Property when Bond proceeds in the amount of $10,260,775 are deposited in the City Facilities Account. If any of the foregoing fees and charges have been advanced by the Company prior to the deposit of the corresponding amount in the City Facilities Account, such amounts shall be reimbursed to the Company at the time funds of an equal amount are deposited in the City Facilities Account. Once the amount of $10,260,775 has been deposited in the City Facilities Account, the Company, its successors and assigns shall not be required to make any payment for the corresponding fees and charges at the time such fees and charges are otherwise due unless more than 416 residential units are developed within the Property. The Company agrees that in addition to the Fee Credit Amounts, $850,000 (the "Government Facility Amount') shall be reserved in the City Facilities Account for use by the City to finance other City Facilities, as determined by the City in its sole discretion. The portion of the City Facilities Amount not including the Fee Credit Amounts and the Government Facility Amount shall be available to fund the Acquisition Facility and no fee or charge credit shall be given for such remaining portion of the City Facilities Amount or for the Government Facility Amount. 10. Amendment. This Agreement may be amended at any time but only in writing signed by each party hereto. 7 DOCSOC/ 1032540v5/22508-0049 0 0 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: SJD Partners, Ltd. 2392 Morse Avenue Irvine, California 92614 Attn: Ron Freeman and Bruce Elieff Each party may change its address for delivery of notice by delivering written notice of such change of address to the other parties hereto. 13. Exhibits. All exhibits attached hereto are incorporated into this Agreement by reference. 14. Severabilitv. If any part of this Agreement is held to be illegal or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible. 15. Governing Law. This Agreement and any dispute arising hereunder shall be governed by and interpreted in accordance with the laws of the State of California. 16. Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other parties hereto, or the failure by a party to exercise its rights upon the default o f another party, shall not constitute a waiver o f such party's right to insist and demand strict compliance by such other parties with the terms of this Agreement thereafter. 17. No Third Party Beneficiaries. No person or entity shall be deemed to be a third party beneficiary hereof, and nothing in this Agreement (either express or implied) is intended to confer upon any person or entity, other than the City, the School District, the District and the Company (and their respective successors and assigns), any rights, remedies, obligations or liabilities under or by reason of this Agreement. DOCS001032540v5/22508-0049 9 0 18. Successors and Assigns. All of the covenants, stipulations, promises, and agreements contained in this Agreement by or on behalf of, or for the benefit of, any of the parties hereto, shall bind or inure to the benefit of any of the successors and assigns of the respective parties; provided, however, that purchasers of completed residential units shall not be deemed to be successors and assigns of the Company for purposes of this Agreement, and shall have no right to enforce any provisions of this Agreement. 19. Singular and Plural; Gender. As used herein, the singular of any word includes the plural, and terms in the masculine gender shall include the feminine. 20. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute but one instrument. 9 DOCSOC/ 1032540v5/22508-0049 0 IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year written below. Date: 12004 CAPISTRANO UNIFIED SCHOOL DISTRICT President of the Board of Trustees ATTEST: By: Clerk of the Board of Trustees of the Capistrano Unified School District CITY OF SAN JUAN CAPI1S`T•`RA-NO Its:e �� `K %A� City Manager ATTEST: By: Ci Clerk S-1 DOCSOC/ 1032540v5/22508-0049 SJD PARTNERS, LTD., a California Limited Partnership By: SJD Development Corp., a California Corporate General P er t ft By: BruceeElieff Title: A/ S-2 DOCSOC/ 1032540v5/22508-0049 0 EXHIBIT A DESCRIPTION OF PROPERTY 0 The real property to be included within Community Facilities District No. 98-1A of the Capistrano Unified School District (Pacifica San Juan): 666-301-01 675-081-04 675-081-10 675-081-14 675-361-01 675-361-08 675-361-09 A-1 DOCSOC/ 1032540v5/22508-0049 • EXHIBIT B DESCRIPTION OF CITY FACILITIES The following improvements are eligible City Facilities: DESCRIPTION A. Constructed by City (fees and charges) Park Improvements $ 2,661,384 Affordable Housing Improvements 1,800,00011) Systems Development Improvements (211 and 364) 1,182,668 Agricultural Preservation Improvements 242,700 Soils Subsidence Remediation Improvements 500,000 Catchment Area Improvements 150,000 Water Capacity Improvements 1,000,000 Non -Domestic Water Improvements 700,000 La Novia Improvements 364,050(') Sewer Connection Improvements 1,580,390 Fair Share of Southbound Ortega Hwy. Offramp 76,979 Fair Share of Northbound Ortega Hwy. Offramp 2,604 City Wide Development Improvements 850,000 B. Acquisition Facille "A" Street Grading 2.689,225(3) Total $13,800,000 Represent amounts previously advanced by Company to City as of May 1, 2004 to be reimbursed to Company when City Facilities Account funded. t2) "A" Street grading costs shall be funded upon completion of grading, prior to completion of roadway construction and separate from funding for construction and soft costs for "A" Street. Individual Facilities, if any, may be specified in a written supplement executed by Company and City Engineer. (3) "A" Street grading costs in excess of $2,689,225, but not to exceed $4,716,648 in aggregate grading costs, may be funded from the City Facilities Account to the extent of investment earnings, if any, therein. IN DOCSOV 153254ON5/22508-0049 EXHIBIT C DISBURSEMENT REQUEST FORM CITY OF SAN JUAN CAPISTRANO PACIFICA SAN JUAN PLANNED COMMUNITY Community Facilities District No. 98 -IA of the Capistrano Unified School District (Pacifica San Juan) ("CFD No. 98-1A") is hereby requested to pay from the City Facilities Subaccount of the Project Account of the Acquisition and Construction Fund established by that certain Bond Indenture (the "Bond Indenture") entered into by CFD No. 98 -IA in connection with its CFD No. 98 -IA Series 2004 Special Tax Bonds (the "Bonds"), to the City of San Juan Capistrano (the "City"), as Payee, the sum set forth below in payment of project costs described below. The undersigned certifies that the amount requested has been expended or encumbered for the purposes of acquiring, constructing or completing City Facilities. The amount requested is due and payable under, or is encumbered for the purpose of funding, a purchase order, contract or other authorization with respect to the project costs described below and has not formed the basis of prior request or payment. The City agrees to trace and remit to CFD No. 98-1A all earnings, if any, in excess of the yield on the Bonds accruing from the investment of the amounts requested herein, from the date of receipt by the City of such amounts to the date of expenditure of such amounts by payment thereof to a third party for the costs set forth below. Such remittance, if any, shall be made each year on the earlier of the expenditure of such amounts or the anniversary date of the transfer of the requested amounts by CFD No. 98-1A to the City. Total payments to the City from the Acquisition and Construction Fund have not exceeded $13,800,000 plus investment earnings, if any, on such amount. Description of City Facilities Costs: Amount requested: The amount of $ is authorized and payable pursuant to the terms of the Joint Community Facilities Agreement among CFD No. 98-1A, SID Partners Ltd., and the City of San Juan Capistrano dated as of June 14, 2004. Executed by an authorized representative of each of SID Partners, Ltd. and the City of San Juan Capistrano. SID PARTNERS, LTD. CITY OF SAN JUAN CAPISTRANO: By: By: Its: Its: Date: DOCSOC/ 1032540v5/22508-0049 Date: C-1 0 EXHIBIT C-1 41 FORM OF ACQUISITION FACILITY PAYMENT REQUEST The undersigned, hereby requests payment in the total amount of $ for the Acquisition Facility (as defined in the Joint Community Facilities Agreement by and among Capistrano Unified School District (the "School District"), City of San Juan Capistrano (the "City") and SJD Partners, Ltd. (the "Owner"), dated June 14, 2004 (the "Agreement")), all as more fully described in Attachment 1 hereto. In connection with this Payment Request, the undersigned hereby represents and warrants to the City as follows: 1. He(she) is a duly authorized officer of the undersigned, qualified to execute this Payment Request for payment on behalf of the undersigned and is knowledgeable as to the matters set forth herein. 2. All costs of the Acquisition Facility for which payment is requested hereby are actual costs and have not been inflated in any respect. The actual costs for which payment is requested have not been the subject of any prior disbursement request submitted to Community Facilities District No. 98-1 (Pacifica San Juan) of the Capistrano Unified School District (the "CFD"). 3. Supporting documentation (such as third party invoices, lien releases and cancelled checks o r o ther a vidence o f p ayment) i s a ttached with r espect t o each c ost for w hich p ayment i s requested. 4. The Acquisition Facility for which payment is requested was constructed in accordance with the requirements of the Agreement. 5. The undersigned is in compliance with the terms and provisions of the Agreement and no portion of the amount being requested to be paid was previously paid. 6. The acquisition price for the Acquisition Facility has been calculated in conformance with the terms of the Agreement. 7. Please authorize payment of the acquisition "price by the CFD_ to the following entity(ies), if other than the undersigned, in the amounts or percentages indicated: [Insert names of payees and amounts or percentages] C-1-1 DOCSOC/ 1032540v5/22508-0049 I declare under penalty of perjury that the above representations and warranties are true and correct. SJD PARTNERS, LLC: CITY OF SAN JUAN CAPISTRANO: Payment Request Approved for Submission to CFD By: By: Its: Its: Date: DOCS00l 032540v5/22508-0049 Date: C -I-2 ATTACHMENT SUMMARY OF ACQUISITION FACILITY(IES) TO BE ACQUIRED AS PART OF PAYMENT REQUEST Disbursement Acquisition Facility Actual Costs Requested [List here all Acquisition Facilities which payment is requested, and attach support documentation] C-1-3 DOCSOC/ 1032540v5/22508-0049