Resolution Number 08-09-16-02J
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RESOLUTION NO. 08-09-16-0 2
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN
CAPISTRANO, CALIFORNIA, ESTABLISHING COMMUNITY FACILITIES
DISTRICT NO. 2008-1 OF THE CITY OF SAN JUAN CAPISTRANO
(VENTANAS BUSINESS CENTER), APPROVING THE FORM OF AN
ACQUISITION AGREEMENT AND CALLING AN ELECTION
WHEREAS, the City Council (the "City Council") of the City of San Juan
Capistrano (the "City") has, on August 5, 2008, adopted its Resolution of Intention to
Establish CFD No. 2008-1 ('Resolution of Intention to Establish CFD") stating its
intention to form Community Facilities District No. 2008-1 of the City of San Juan
Capistrano (Ventanas Business Center) ("Community Facilities District No. 2008-1" or
the "District') pursuant to Mello -Roos Community Facilities Act of 1982, as amended,
commencing with Section 53311 of the Government Code (the "Act'); and
WHEREAS, a copy of the Resolution of Intention to Establish CFD setting forth a
description of the proposed boundaries of Community Facilities District No. 2008-1, the
facilities and incidental expenses to be financed by the District (the "Facilities" and
"Incidental Expenses," respectively) and the rate and method of apportionment of the
special tax (the 'Rate and Method of Apportionment') proposed to be levied within the
District is on file with the City Clerk and except to the extent amended by this resolution
is incorporated herein by reference; and
WHEREAS, the City has determined the necessity and benefit of acquiring
certain public capital improvements which have been, or will be constructed, by
LB/CENTRA TIRADOR, LLC, a Delaware limited liability company, as the owner of the
land within the District (the "Owner") pursuant to Section 53314.9 of the Act and
pursuant to an acquisition agreement by and between the Owner, the City and the
District (the "Acquisition Agreement), the form of which is attached hereto as EXHIBIT
"A" and incorporated herein by this reference, and funding certain public improvements
to be constructed or provided by the City and, in connection therewith, to credit such
amounts against impact fees required to be paid in connection with the development of
land within the District; and
WHEREAS, notice was published and mailed to all landowners of the land
proposed to be included within the District as required by law relative to the intention of
the City Council to form proposed Community Facilities District No. 2008-1, to levy a
special tax within the District and to incur bonded indebtedness of the District; and
WHEREAS, at the September 16, 2008 public hearing, there was filed with this
City Council a report containing a description of the Facilities necessary to meet the
needs of the District and an estimate of the cost of such Facilities as required by
Section 53321.5 of the Act (the "CFD Report"); and
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WHEREAS, at the September 16, 2008 public hearing all persons desiring to be
heard on all matters pertaining to the proposed formation of Community Facilities
District No. 2008-1, the levy of the special taxes and the issuance of bonded
indebtedness of the District were heard and a full and fair hearing was held; and
WHEREAS, at the September 16, 2008 public hearing, evidence was presented
to the City Council on the matters before it, and the proposed formation of the District
and the levy of special taxes within the District was not precluded by a majority protest
of the type described in Section 53324 of the Act, and this City Council at the conclusion
of the hearing is fully advised as to all matters relating to the formation of the District,
the levy of the special taxes within the District and the issuance of bonded indebtedness
of the District; and
WHEREAS, the City Council has determined that there have been fewer than
twelve registered voters residing in the proposed boundaries of Community Facilities
District No. 2008-1 for the period of 90 days prior to September 16, 2008 and that the
qualified electors in Community Facilities District No. 2008-1 are the landowners within
the District; and
WHEREAS, on the basis of all of the foregoing, the City Council has determined
at this time to proceed with the establishment of Community Facilities District No. 2008-
1 and to call an election within the District to authorize (i) the levy of special taxes
pursuant to the Rate and Method of Apportionment for Community Facilities District
No. 2008-1, as set forth in EXHIBIT "C" hereto to finance the Facilities and Incidental
Expenses, (ii) the issuance of bonds of the District to finance the Facilities and
Incidental Expenses, and (iii) the establishment of an appropriations limit for Community
Facilities District No. 2008-1, as set forth in the form of Ballot attached hereto as
EXHIBIT "B'
NOW, THEREFORE, the City Council of City of San Juan Capistrano does
hereby resolve, determine and order as follows:
SECTION 1. Each of the above recitals is true and correct.
SECTION 2. A community facilities district to be designated "Community
Facilities District No. 2008-1 of the City of San Juan Capistrano (Ventanas Business
Center)" is hereby established pursuant to the Act. The City Council hereby finds and
determines that all prior proceedings taken with respect to the establishment of the
District were valid and in conformity with the requirements of law, including the Act.
This finding is made in accordance with the provisions of Section 53325.1(b) of the Act.
The creation of the District and the issuance of bonds by the District to finance
the Facilities, City Facilities and Incidental Expenses are activities exempt from the
California Environmental Quality Act ("CEQA") pursuant to Guidelines
Section 15378(b)(4) in that the bond proceeds have not been committed to any specific
project or projects which may result in a potentially significant physical impact on the
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environment, and the creation of the District and the issuance of bonds thereby
' represent a government financing mechanism or fiscal activity.
Because the City Council's action in creating the District and authorizing the
issuance of bonds are activities exempt from CEQA pursuant to the Guidelines sections
set forth above, the City Council hereby directs the City Clerk to cause a Notice of
Exemption to be prepared and to file such Notice of Exemption with the Office of the
Recorder of the County of Orange.
SECTION 3. The boundaries of Community Facilities District No. 2008-1 is
established as shown on the map designated "Map of Proposed Boundaries of
Community Facilities District No. 2008-1 of the City of San Juan Capistrano (Ventanas
Business Center)," which map is on file in the office of the City Clerk and was recorded
pursuant to Sections 3111 and 3113 of the Streets and Highways Code on the 12th of
August, 2008, in Book: 93, Page: 10, Instrument: 2008-000383752 of Maps of
Assessment and Community Facilities Districts, in the office of the County Recorder of
County of Orange, State of California, which map is now the final boundary map of CFD
No. 2008-1 (the "Map'), which map shall be deemed a consolidated map for purposes
of the California Streets and Highways Code, and shall supercede any other maps of
the District.
SECTION 4. The types of Facilities and Incidental Expenses authorized to be
provided for Community
Facilities District No. 2008-1 are
those set forth in the
'
Resolution
of Intention to
Establish CFD. The estimated cost of the Facilities and
Incidental
Expenses to be
financed is set forth in the CFD
Report, certain of which
estimates
may change as
the Facilities are designed and
bid for construction and
acquisition.
SECTION 5. Except where funds are otherwise available, it is the intention of the
City, subject to the approval of the eligible voters within the District, to levy the proposed
special taxes at the applicable rates for the District set forth in EXHIBIT "C" hereto on all
non-exempt property within the District sufficient to pay for (i) the Facilities, (ii) the
principal and interest and other periodic costs on the bonds proposed to be issued by
the District to finance the Facilities and Incidental Expenses, including the establishment
and replenishment of a reserve fund, any remarketing, credit enhancement and liquidity
facility fees and other expenses of the type permitted by Section 53345.3 of the Act; and
(iii) the Incidental Expenses. The District expects to incur, and in certain cases has
already incurred, Incidental Expenses in connection with the creation of the District, the
issuance of bonds, the levying and collecting of the special tax, the completion and
inspection of the Facilities and the annual administration of the bonds and the District.
The Rate and Method of Apportionment is described in detail on EXHIBIT "C" hereto,
and the City Council hereby finds that EXHIBIT "C" contains sufficient detail to allow
each landowner within the District to estimate the maximum amount that may be levied
against each parcel. The special tax shall be levied on each assessor's parcel for a
period necessary to fully satisfy the Special Tax Requirement (as defined in the Rate
and Method of Appointment) but not later than 45 years from Fiscal Year 2008-09. The
special tax is apportioned to each parcel on the foregoing bases pursuant to
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Section 53325.3 of the Act and such special tax is not on or based upon the ownership
of real property.
The District may accept advances of funds or work-in-kind from any source,
including, but not limited to, private persons or private entities, for any authorized
purpose, including, but not limited to, paying any cost incurred by the District in creating
Community Facilities District No. 2008-1. The District may enter into an agreement with
the person or entity advancing the funds or work-in-kind, to repay all or a portion of the
funds advanced, or to reimburse the person or entity for the value, or cost, whichever is
less, of the work-in-kind, as determined by the City Council, with or without interest.
The Office of the City Manager, City of San Juan Capistrano, 32400 Paseo
Adelanto, San Juan Capistrano, CA 92675, telephone number (949) 443-6301, will be
responsible for preparing annually, or authorizing a designee to prepare, a current roll of
special tax levy obligations by assessor's parcel number and will be responsible for
estimating future special tax levies pursuant to Section 53340.2 of the Act.
SECTION 6. In the event that a portion of the property within Community
Facilities District No. 2008-1 shall become for any reason exempt, wholly or partially,
from the levy of the special tax specified in the Rate and Method of Apportionment
contained in EXHIBIT "C" hereto, the City Council shall, on behalf of Community
Facilities District No. 2008-1, increase the levy to the extent necessary and permitted by
law upon the remaining property within the District which is not delinquent or exempt in
order to yield the required debt service payments on any outstanding bonds of the
District to prevent the District from defaulting on any other obligations or liabilities of the
District; provided, however, that in no event shall the special tax on a residential
property increase as a result of a default by more than 10 percent.
SECTION 7. Upon recordation of a notice of special tax lien pursuant to
Section 3114.5 of the Streets and Highways Code, a continuing lien to secure each levy
of the special tax shall attach to all non-exempt real property in the District and this lien
shall continue in force and effect until the special tax obligation is prepaid and
permanently satisfied and the lien canceled in accordance with law or until collection of
the special tax by the District ceases.
SECTION 8. Consistent with Section 53325.6 of the Act, the City Council finds
and determines that the land within Community Facilities District No. 2008-1, if any,
devoted primarily to agricultural, timber or livestock uses and being used for the
commercial production of agricultural, timber or livestock products is contiguous to other
land within Community Facilities District No. 2008-1 and will be benefited by the
Facilities proposed to be provided within Community Facilities District No. 2008-1.
SECTION 9. It is hereby further determined that there is no ad valorem property
tax currently being levied on property within proposed Community Facilities District
No. 2008-1 for the exclusive purpose of paying the principal of or interest on bonds or
other indebtedness incurred to finance the construction of capital facilities which provide
the same services to the territory of Community Facilities District No. 2008-1 as are
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proposed to be provided by the Facilities to be financed by Community Facilities District
No. 2008-1.
SECTION 10. Written protests against the establishment of the District
have not been filed by one-half or more of the registered voters within the boundaries of
the District or by the property owners of one-half or more of the area of land within the
boundaries of the District. The City Council hereby finds that the proposed special tax
for the District has not been precluded by a majority protest pursuant to Section 53324
of the Act.
SECTION 11. An election is hereby called for Community Facilities District
No. 2008-1 on the propositions of levying the special tax on the property within the
District and establishing an appropriations limit for the District pursuant to
Section 53325.7 of the Act and shall be consolidated with the election on the proposition
of incurring bonded indebtedness for the District, pursuant to Section 53351 of the Act.
The propositions to be placed on the ballot for the District are attached hereto as
EXHIBIT'S."
SECTION 12. The date of the election within Community Facilities District
No. 2008-1 shall be September 16, 2008 at 7:00 p.m., or such later time or date as is
consented to by the City Clerk and the landowners within the District. The City Clerk
shall conduct the election. Except as otherwise provided by the Act, the election shall
be conducted by personally delivered or mailed ballot and, except as otherwise
provided by the Act, the election shall be conducted in accordance with the provisions of
law regulating elections of the City insofar as such provisions are determined by the City
Clerk to be applicable.
It is hereby found that there are not more than twelve registered voters within the
territory of Community Facilities District No. 2008-1, and, pursuant to Section 53326 of
the Act, each landowner who is the owner of record on the date hereof, or the
authorized representative thereof, shall have one vote for each acre or portion thereof
that he or she owns within the District.
SECTION 13. The City is authorized by the Act to contribute revenue to, or
to construct or acquire the Facilities, all in accordance with the Act. The City Council
finds that the proposed Facilities are necessary to meet the increased demand that will
be placed upon the facilities within the City as a result of new development within the
District.
SECTION 14. The preparation of the CFD Report is hereby ratified. The
CFD Report, as submitted, is hereby approved and made a part of the record of the
public hearing regarding the formation of Community Facilities District No. 2008-1, and
is ordered to be kept on file with the transcript of these proceedings and open for public
inspection.
SECTION 15. Consistent with Section 53314.9 of the Act, the City Council
hereby approves the Acquisition Agreement in substantially the form attached hereto as
EXHIBIT "A", together with such changes as may be approved by the City Manager or
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his designee (the "Authorized Officer"). Approval of such changes shall be conclusively
evidenced by the execution and delivery of the Acquisition Agreement by the Authorized
Officer,
SECTION 16. This Resolution shall be effective u on its adoption.
PASSED, APPROVED, AND ADOPT this 1 `h darjAeptember 2008.
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF SAN JUAN CAPISTRANO )
)E SOT/O. MA
I, MARGARET R. MONAHAN, appointed City Clerk of the City of San Juan Capistrano, do hereby certify
that the foregoing Resolution No. 08-09-16-02 was duly adopted bythe City Council of the City of San Juan
Capistrano at a Regular meeting thereof, held the 16th day of September 2008, by the following vote:
AYES: COUNCIL MEMBERS: Allevato, Hribar, Uso, and Mayor Soto
NOES: COUNCIL MEMBER: Mayor pro tem Nielsen
RECUSE: COUNCIL MEMBER: None
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ACQUISITION, FUNDING AND DISCLOSURE AGREEMENT
' COMMUNITY FACILITIES DISTRICT NO. 2008-1
OF THE CITY OF SAN JUAN CAPISTRANO (VENTANAS BUSINESS PARK)
Recitals
A. The parties to this Acquisition, Funding and Disclosure Agreement ("Agreement")
are the City of San Juan Capistrano, a municipal corporation (the "City"), Community Facilities
District No. 2008-1 of the City of San Juan Capistrano (Ventanas Business Park), a separately
constituted governmental agency (the "CFD"), and LB/Centra Tirador, LLC, a Delaware limited
liability company (the "Developer"). The City, the CFD and the Developer are referred to herein,
collectively, as the "Parties" and each individually as a "Party".
B. The effective date of this Agreement shall be October 1, 2008. All capitalized terms
not otherwise defined in this Agreement shall have the meanings ascribed thereto in that certain Rate
and Method of Apportionment of Special Tax for the CFD included in the resolution forming the
CFD, heretofore adopted by the City Council (the "RMA").
C. The City, at the Developer's request, has formed the CFD pursuant to the provisions
of the Mello -Roos Community Facilities Act of 1982, as amended (the "Act"); and the City Council
of the City serves as the legislative body of the CFD. The CFD is authorized to issue bonds (the
"Bonds") secured by the Special Tax (the "Special Tax") to be levied pursuant to the RMA on
property within its boundaries (the "Subject Property") in order to finance the acquisition or
' construction of certain facilities to be owned and operated by the City and incidental expenses.
D. The CFD is authorized pursuant to Government Code Section 53313.51 to utilize (i) a
portion of the proceeds derived from the sale of the Bonds, if and to the extent such proceeds are
available for such purpose, and (ii) certain Special Tax revenues, all as described in Section 3
(collectively, the "Eligible Funds"), to pay for (a) the acquisition by the City of certain public
improvements to be constructed either by, or under contract to, the Developer (individually a
"Developer Facility" or "Facility" and collectively, the "Developer Facilities" or "Facilities") and (b)
the costs of certain public improvements to be constructed by the City in lieu of applicable City
development impact fees ("Impact Fees") with respect to the Subject Property.
E. The City and the Developer have each respectively determined that it is desirable to
enter into an agreement which identifies the Facilities and Impact Fees to be funded by the CFD.
This Agreement is intended to, among other things, provide for the acquisition of the Developer
Facilities with a portion of the proceeds of the Bonds, if any, hereafter issued and, if and to the extent
such proceeds are insufficient for such purpose, with other Eligible Funds, if any.
F. The Developer Facilities, the respective estimated costs thereof, and the estimated
Impact Fees to be credited are generally identified in Exhibit A attached hereto and by this reference
incorporated herein.
G. Pursuant to the proceedings establishing the CFD, proceeds of the Bonds and the
Special Tax will additionally be utilized to fund community -wide public facilities in an amount equal
to ten percent (10%) of the Acquisition Price plus the Impact Fees actually funded by the CFD. Such
funding is required pursuant to City community facilities district policy to help mitigate the impacts
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DOC SOC/ 1290535v5/022658-0023
of the proposed development in the community facilities district on facilities and services provided to
the community as a whole.
H. The Developer desires to assure the City that the Special Tax obligation will be fully
disclosed in writing to future purchasers from the Developer, or Developer's successors or assigns, of
parcels of real estate comprising the Subject Property or of any interest therein.
Agreement
In consideration for the mutual undertakings of the parties stated herein, the parties agree as
follows:
1. Recitals. The foregoing recitals are true and correct, and the parties expressly so
acknowledge. Said recitals are incorporated herein by reference.
2. Acquisition of Developer Facilities. The Developer hereby agrees to sell to the City
and, subject to the availability of Eligible Funds in amounts sufficient for such purpose, the CFD
hereby agrees to pay to the Developer the applicable Acquisition Price (defined below) for each
Developer Facility, subject to adjustments thereof as described in this Agreement and to the terms
and conditions hereof. Title (where applicable) to each Developer Facility paid for by the CFD
pursuant hereto shall be conveyed to the City by appropriate instrument as of the date on which the
City accepts such Developer Facility, which may be after the City has paid 90% of the Acquisition
Price. In each case the "Acquisition Price" of a Developer Facility shall equal the lesser of (i) the
Actual Cost (defined below) of the Developer Facility or (ii) the Value (defined below) of the
Developer Facility, as each is determined pursuant to Section 4 of this Agreement.
The Developer expressly acknowledges that the obligation of the CFD to pay the Acquisition
Price for each of the Developer Facilities is strictly limited to Eligible Funds and that no other source
of funds is expected or obligated to be used for such purpose. The Parties acknowledge and agree
that the total of the Acquisition Prices for all of the Developer Facilities purchased will not exceed
the Eligible Funds. The Parties acknowledge that actual Developer Facilities may differ from the
general description contained in Exhibit A and that payment of the Acquisition Price for a Developer
Facility shall not be withheld as a result of any difference so long as the Developer Facilities are
consistent with the type of facilities authorized to be funded by the CFD and have been constructed
in accordance with City approved plans and the terms of this Agreement.
3. Eligible Funds. As used in this Agreement, the term "Eligible Funds" means the
sum of (i) the Bond proceeds (if any) remaining after (a) paying all costs of issuing the Bonds,
including without limit any Administrative Expenses (as defined in the RMA) ("Administrative
Expenses") (b) funding an interest reserve fund for the Bonds and (c) capitalizing interest on the
Bonds (the "Net Bond Proceeds"), and (ii) Special Tax proceeds, if any, available in any year
following funding all amounts required to be funded in such year pursuant to any indenture of trust
executed in connection with Bonds (the "Indenture"), including without limit all debt service, reserve
replenishment and Administrative Expenses due and payable in such year. The terms and conditions
upon which each series of Bonds will be sold, the method of sale and the pricing of the Bonds shall
be determined by the City in its sole discretion in conformance with the requirements of the Act, the
CFD formation documents, including without limitation the City's Statement of Local Goals and
Policies, and this Agreement. Notwithstanding the foregoing, the Parties currently expect that the
term of the Bonds will be for not less than thirty (30) years, debt service on the Bonds will escalate
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commensurate with the Special Taxes, capitalized interest will be as mutually agreed by the Parties,
' provided that if the Developer is the owner of property which, absent the capitalized interest, would
be responsible for less than 20% of the projected Special Tax burden for the next fiscal year, the City
will make such determination in its own discretion, and priority Administrative Expenses will be
levied at the annual rate of $30,000, escalating each fiscal year by an amount equal to two percent
(2%) of the amount in effect for the previous Fiscal Year, commencing July 1, 2009. The Parties
further agree that, should the City determine to issue Bonds, the sizing of the Bonds will be as the
City determines is prudent in light of market and credit factors applicable at that time.
An owner of land which is responsible for twenty percent (20%) or more of the Maximum
Special Taxes applicable to all of the land in the CFD (a "Major Landowner") will be required to
provide all information regarding the development of its property, including the financing plan for
such development, which is necessary to ensure that the official statement for such Bonds complies
with the requirements of Rule 15c2-12 of the Securities and Exchange Commission (the "Rule") and
all other applicable federal and state securities laws. Additionally Developer acknowledges that, if it
is a Major Landowner at the time of issuance of the Bonds, it will be necessary that Developer enter
into a continuing disclosure agreement to provide such continuing disclosure pertaining to the
development of the land owned by Developer in the CFD as necessary to assist the underwriter in
complying with the continuing disclosure requirements of the Rule.
4. Payment of Acquisition Price; Payment Conditions.
(a) Determination of Acquisition Price. In order to be paid for a completed Developer
' Facility, the Developer shall deliver to the City Director of utilities, with respect to water or other
utility facilities, and the Director of Public Works, with respect to street and transportation facilities,
as applicable, ("City Authorized Representative") a request for such payment in the form attached
hereto as Exhibit B (a "City Payment Request"), together with all attachments and exhibits to be
included therewith and, where applicable as the City may deem appropriate under the circumstances,
(i) a copy of the documents conveying title of such Developer Facility to the City, in the form
acceptable to the City ("Acceptable Title") (and to the extent the Developer Facility consists of real
property, such documents shall be recorded in the official records of Orange County, California and
(ii) a copy of the recorded Notice of Completion of such Developer Facility filed in accordance with
Section 3093 of the California Civil Code (if applicable).
Until the acceptance by the City of the applicable Developer Facility, the amount to be paid
with respect to such Developer Facility shall not exceed 90% of the Acquisition Price. The
remaining 10% of the Acquisition Price shall be payable to the Developer within 35 days after the
City's acceptance of the applicable Developer Facility. Provided Developer has complied with the
requirements of this Agreement, the CFD agrees to pay such portion of the Acquisition Price of a
completed Developer Facility, as may be then funded from available Eligible Funds, with any
unfunded amount paid upon the availability of additional available Eligible Funds until paid in full.
Upon receipt of a completed City Payment Request (and all documentation required by this
Agreement to be submitted therewith) for a Developer Facility, the City Authorized Representative
shall conduct a review in order to confirm that such Developer Facility was constructed in
accordance with the Plans therefor and to verify the Actual Cost (as defined below) of such
' Developer Facility, specified in such City Payment Request. The Developer agrees to cooperate with
the City Authorized Representative in conducting each such review and to provide the City
Authorized Representative with such additional information and documentation as is reasonably
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necessary for the City Authorized Representative to conclude each such review. The City
Authorized Representative shall complete such review as soon as reasonably practicable after
receiving all necessary information and documentation and shall take action with respect thereto
within 45 calendar days after his or her receipt of such information and documentation.
The Acquisition Price to be paid from Eligible Funds for the acquisition of a Developer
Facility by the City shall be lesser of (i) the Value (as defined below) of the Developer Facility as
determined by the City Authorized Representative and (ii) the Actual Cost (as defined below) of the
Developer Facility. As used herein, the term "Value" means, with respect to a Developer Facility,
the estimated cost to the City to provide such Developer Facility as determined by the City
Authorized Representative. In the event that the City Authorized Representative determines that the
Value is less than the Actual Costs of a particular Developer Facility, then the City Authorized
Representative shall provide Developer with his/her reason(s) as to why the determined Value is less
than the Actual Costs and Developer shall have an opportunity to provide any oral and/or written
comments, which the City Authorized Representative will reasonably consider before making his/her
final determination of the Value of such Developer Facility.
If the final determination of the Acquisition Price for a Developer Facility differs from the
amount initially specified in the City Payment Request, the Developer shall resubmit such City
Payment Request, with the amount specified therein modified to reflect the final determined
Acquisition Price pursuant to the City Authorized Representative. Upon confirmation that such
Developer Facility has been constructed in accordance with the plans therefor, and verification and
approval of the Acquisition Price of such Developer Facility, the City Authorized Representative
shall sign the City Payment Request, amended by the Developer, if applicable, as provided in the
preceding sentence (the "City Certificate of Acquisition Price") and promptly forward the same to
the City Manager. In the event the Parties cannot agree on the Acquisition Price following
application of the foregoing process, either Party shall be entitled to refer the matter to the City
Council, and the City Council shall determine the appropriate Acquisition Price based on the terms of
this Agreement. Following the final approval of the Acquisition Price pursuant to this Section, and
provided the Developer does not dispute the amount of the approved Acquisition Price, the City
Authorized Representative shall, as soon as possible, forward a City Certificate of Acquisition Price,
revised if necessary to reflect the City Council approved Acquisition Price, to the entity which holds
Eligible Funds for such purpose (the "Bond Fiscal Agent") with instructions to effectuate payment to
the Developer, from Eligible Funds, if any, in the amount of the approved Acquisition Price or 90%
of the approved Acquisition Price, as applicable.
As used in this Agreement, the term "Actual Cost" means, with respect to a Developer
Facility, (in each case, to the extent not previously paid to the Developer) an amount equal to the sum
of (a) the Developer's actual cost of designing and constructing such Developer Facility, including
labor, material and equipment costs, and for the costs of preparing plans and specifications for such
Developer Facility, environmental evaluations of the Developer Facility, professional services
directly related to the construction of such Developer Facility, including engineering, inspection,
construction staking, materials testing and similar professional services, and for the cost of
performance bonds, labor bonds, materials bonds, maintenance bonds, and/or other securities posted
in connection with construction of the Developer Facility; (b) the amount of the fees actually paid by
the Developer to governmental agencies in order to obtain plan checks, permits, licenses or other
necessary governmental approvals for such Developer Facility, (c) a total fee not to exceed ten
percent (10%) of the amount described in clause (a) to Developer in order to compensate Developer
for construction management services, and (d) the Developer's actual cost of any title insurance
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DOCSOC/7290535v5/022658-0023
required hereby for such Developer Facility, all as specified in a City Payment Request that has been
' reviewed and approved by the City Authorized Representative or the City Council (as applicable).
"Actual Cost" shall not include either (i) internal administrative costs or legal costs incurred by the
Developer or (ii) costs incurred by the Developer in connection with the preparation of a tentative or
final tract map.
City and Developer acknowledge that the Developer Facilities have been identified for
payment purposes only, and that the City shall not accept a Developer Facility until the entire
Developer Facility has been completed. The City acknowledges that the Developer Facilities do not
have to be accepted by the City as a condition precedent to the payment of 90% of the Acquisition
Price therefore, but the City shall not be obligated to make such payment until the Developer Facility
has been "substantially completed", which shall mean that such Developer Facility is substantially
complete for its intended use in accordance with its Plans, notwithstanding any final "punch list"
items still required to be completed. In any event, the City shall not be obligated to pay the
Acquisition Price for any Developer Facility except from Eligible Funds. Upon City's acceptance of
a Developer Facility, the City Authorized Representative shall, as soon as possible, forward the City
Certificate of Acquisition Price to the Bond Fiscal Agent with instructions to effectuate payment to
the Developer, from Eligible Funds, in the amount of the remaining 10% of the approved Acquisition
Price of such Developer Facility.
(b) No Obligation to Pay if Developer Delinquent. Any provision of this Agreement to
the contrary notwithstanding, the CFD will not be required to pay the Developer for any Developer
Facility even if it were otherwise required to do so pursuant to this Agreement, if the Developer or
' any Affiliate of the Developer is delinquent in the payment of the Special Tax or any other amount
payable by the Developer to the CFD or the City pursuant to this Agreement or otherwise relating to
the CFD.
An "Affiliate" shall mean (a) each person that, directly or indirectly, owns or controls,
whether beneficially or as trustee, guardian, or other fiduciary, 50% or more of any class or equity
securities of the Developer, and (b) each person that controls, is controlled by or is under common
control with or by the Developer or any Affiliate of the Developer. For the purpose of this definition,
"control" of a person shall mean possession, directly or indirectly, of the power to direct or cause the
direction of its management or policies, whether through the ownership of voting securities, by
contract or otherwise.
(c) Inspection. The City has primary responsibility for inspecting the Developer
Facilities to assure that the work was accomplished in accordance with the Plans. City's inspection
does not include inspection for compliance with safety requirements by Developer's contractor(s).
The City's personnel will be granted access to each construction site at all reasonable times for the
purpose of accomplishing such inspection. Upon satisfaction of the City's inspectors, City shall
notify the Developer in writing that a Developer Facility has been completed in accordance with the
Plans. Any actual costs reasonably incurred by the City for inspection not previously paid by the
Developer shall be reimbursed from Eligible Funds.
(d) Liens. Prior to City acceptance of the Developer Facility and upon earlier of (i)
receipt of all applicable lien releases, or (ii) expiration of the time for the recording of claim of liens
as prescribed by Section 3115 and 3116 of the Civil Code, Developer shall provide to the City such
evidence or proof as the City shall require that all persons, firms and corporations supplying work,
labor, materials, supplies and equipment for the construction of the Developer Facility have been
A-5
DOCSOC/ 1290535v5/022658-0023
paid, and that no claims of liens have been recorded by or on behalf of any such person, firm or
corporation.
5. Developer's Duty to Construct. The Developer shall construct each Developer
Facility, or cause each Developer Facility to be constructed, in accordance with the Plans for such
Facility approved by the City. The Developer shall perform all of its obligations hereunder, and shall
conduct all operations with respect to the construction of the Developer Facilities, in a good,
workmanlike and commercially reasonable manner, with the standard of diligence and care normally
employed by duly qualified persons performing comparable work and in accordance with generally
accepted practices appropriate to the activities undertaken. The Developer shall not be relieved of its
obligation to construct each Developer Facility, and convey such Developer Facility to the City in
accordance with the terms hereof, even if the Acquisition Price for such Developer Facility is in
excess of Eligible Funds.
6. Public Works Requirements. In order to insure that each Developer Facility whose
construction has not been completed, as determined by the City Council of the City, before the
formation of the CFD, each such Developer Facility will be constructed as if it had been constructed
under the direction and supervision, or under the authority, of the City, so that it may be acquired
pursuant to California Government Code Section 53313.5. The Developer shall comply with all of
the legal requirements that would apply if the Developer Facility were being constructed under the
direction and supervision or the authority of the City.
In addition, the Developer shall provide for its own construction financing, construction
contracting and contract administration. In providing for the construction and installation of the
Developer Facilities, the Developer and its contractor(s) shall be obligated to meet all requirements
customarily imposed by the City and by any other public agency or public utility company having
jurisdiction upon subdividers, developers and contractors in such circumstances. Without limiting
the generality of the foregoing, the Developer shall be obligated as follows:
(i.) The Developer and/or its contractor(s) shall post completion bonds, labor and
materials bonds, and one-year maintenance bonds (such one-year period to commence upon
acceptance by the City of a Developer Facility) in the same manner and in the same amount
as is required by the City and by any other public agency or public utility company having
jurisdiction as would be required in the absence of the Bond financing program.
(ii.) The Developer warrants, and by its offer to transfer ownership of a Developer
Facility to the City, shall warrant that such Developer Facility will be free from defects in
workmanship or materials. Said warranty shall extend for a period of one (1) year after the
issuance by the City of a notice of acceptance of such Developer Facility.
(iii.) In addition to the warranties and obligations of the Developer set forth in the
foregoing subparagraph (ii), the Developer shall remain and be responsible to the City for
any defects in work, supplies, or materials in connection with a Developer Facility occurring
or appearing within one (1) year of issuance by the City of its notice of acceptance of said
Developer Facility. The City shall give the Developer written notice to replace, repair or
correct any defect forthwith upon discovery thereof, and the Developer shall proceed
forthwith and with all due diligence to effectuate replacement, repair or correction of such
defect.
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DOCSOC/ 129053 5 v5/022658-0023
The requirements of subparagraph (i) above pertaining to maintenance bonds and the
' provisions of subparagraphs (ii) and (iii) above shall be applicable to all Developer Facilities, not
merely those whose construction had not been completed prior to the formation of the CFD.
7. Reimbursements. The Developer assigns to the CFD any and all rights that the
Developer may have, now or in the future, to receive payments of any kind from any other agency in
respect of Developer Facilities actually financed by the CFD; provided, however, that nothing shall
preclude Developer from receiving any deposits or similar amounts to the extent the same were not
financed by the CFD. The Developer will execute such documents as may be reasonably necessary
in order to assure that such payments are made to the CFD, and the Developer will promptly pay to
the CFD any such payments received by the Developer. The CFD will transfer all amounts received
by it pursuant to this Section to the Fiscal Agent for the Bonds and will instruct the Fiscal Agent to
deposit such amounts into the fund or account from which the Acquisition Price of Developer
Facilities is payable.
I I
8. Impact Fees. Developer anticipates that it will request the issuance of building
permits for the construction of units within the Project prior to the issuance of Bonds. Developer will
be required, as a condition precedent to the issuance of such building permits, to pay the Impact Fees
for each such building permit issued prior to the issuance of Bonds. Developer shall be reimbursed,
to the extent of Eligible Funds, for the Impact Fees related to the City Facilities funded by the CFD
paid to the City prior to the issuance of Bonds pursuant to the terms and conditions of this
Agreement.
The Parties intend that, upon issuance of Bonds, if any, a portion of the proceeds of
the Bonds will be set aside for one or more of the following purposes, as directed in writing by the
Developer (i) reimburse Developer for Impact Fees related to the City Facilities funded by the CFD
paid prior to the issuance of Bonds by the Developer, (ii) finance Impact Fees for units to be
constructed on the Subject Property for which building permits have not yet been issued, and (iii)
fund Developer Facilities acquisition, provided such amount shall not exceed the amount of then
Eligible Funds. At such time as Developer applies for the issuance of a building permit for the
construction of a unit within the CFD, the City shall either require cash payment of the applicable
Impact Fees or, if Bonds have been issued and proceeds thereof designated by the Developer for such
purpose, debit the Bond proceeds so designated ("DIF Credit") for the then current applicable Impact
Fees for such unit. At no time shall the City be required to issue a building permit if the then current
applicable Impact Fees are not paid either with a cash payment or DIF Credit, or some combination
thereof. Any Impact Fee reimbursement shall promptly be paid to the Developer following the
City's receipt of a completed City Impact Fee Payment Request in the form attached hereto as
Exhibit C, verified by the City, provided Eligible Funds are available for such purpose.
9. Representations, Warranties and Covenants of the Developer. As used herein, to
Developer's "knowledge" (or words of similar import) shall mean the actual, current knowledge of
Mr. George Peterson, Mr. Keith Ross and/or Mr. Stephen Sandland of Centra Realty Corporation (an
affiliate of Developer). The Developer makes the following representations, warranties and
covenants for the benefit of the City and the CFD:
(a) Organization. The Developer represents and warrants that the Developer is a limited
liability company, duly organized and validly existing under the laws of the State of Delaware, is in
compliance with the laws of the State of Delaware, and has the power and authority to own its
properties and assets and to carry on its business as now being conducted and as now contemplated.
DOCS00129053 5v5/022658-0023
A-7
(b) Authority. The Developer represents and warrants that it has the power and authority
to enter into this Agreement, and it has taken all action necessary to cause this Agreement to be
executed and delivered, and this Agreement has been duly and validly executed and delivered on
behalf of the Developer.
(c) Binding Obligation. The Developer represents and warrants that this Agreement is a
valid and binding obligation of the Developer and is enforceable against the Developer in accordance
with its terms.
(d) Completion of Developer Facilities. The Developer covenants that it will use its
reasonable and diligent efforts to do all things which may be lawfully required of it in order to cause
the Developer Facilities to be completed in accordance with this Agreement.
(e) Compliance with Laws. The Developer covenants that it will not knowingly commit,
suffer or permit any act to be done in, upon or to the property on which the Developer Facilities are
to be constructed or the Developer Facilities in violation of any law, ordinance, rule, regulation or
order of any governmental authority or any covenant, condition or restriction now or hereafter
affecting such property or the Developer Facilities.
(f) Requests for Payment. The Developer represents and warrants that (i) it will not
request payment from the CFD for the acquisition of any improvements that are not part of the
Developer Facilities, (ii) each Developer Facility for which payment is requested will have been
constructed as if under the direction and supervision, or the authority, of the City and (iii) the
Developer will diligently follow all procedures set forth in this Agreement with respect to the --
applicable Payment Requests.
(g) Financial Records and Construction Documents. Until the final acceptance of the
Developer Facilities, the Developer covenants to maintain proper books of record and account for the
Developer Facilities and all costs related thereto for which CFD funding is requested. The Developer
covenants that such accounting books will be maintained in accordance with consistently applied
accounting principles, and will be available for inspection by the City, and its agents, at any
reasonable time during regular business hours on reasonable notice. In addition, the Developer
agrees to maintain and to make available for inspection by the City, and its agents, at any reasonable
time during regular business hours on reasonable notice all documents relating to the construction of
the Developer Facilities including, but not limited to, the Plans, specifications, easements, rights-of-
way, licenses, permits, surveys, estimates, schedules, contracts for the construction of any portion of
the Developer Facilities, invoices and receipts for payments relating to the Developer Facilities,
insurance policies, payroll records, and any other documents required to be maintained by any
applicable provision of law.
(h) Hazardous Materials. The Developer represents and warrants that, to its knowledge,
there is not present upon the Subject Property, or any portion thereof, or upon any portion of the
Developer Facilities currently existing, or any portion thereof, any Hazardous Materials (as defined
below). The Developer represents and warrants that all operations or activities upon, or use or
occupancy of the Subject Property and the Developer Facilities, and each portion thereof, by the
Developer, or to Developer's knowledge, by any prior tenant, occupant or owner of the Subject
Property or any portion thereof, is in all material respects in compliance with all state, federal and
local laws, ordinances, regulations, rules, decisions or policy statements governing or in any way
relating to the generation, handling, manufacturing, treatment, storage, use, transportation, spillage,
ME.
DOCSOC/ 1290535v5/022658-0023
leakage, dumping, release, discharge or disposal (whether accidental or intentional) of any Hazardous
Materials. The Developer represents and warrants that, to its knowledge, there is no proceeding or
inquiry by any governmental authority body or agency with respect to the presence of Hazardous
Materials on, under or emanating from the Subject Property or the Developer Facilities. The
Developer represents and warrants that Developer will not use, generate, manufacture, treat, handle,
procure, store, release, dump, spill, discharge or dispose of any Hazardous Material on, under or
about the Subject Property or the Developer Facilities or transport any Hazardous Material to or from
the Subject Property or the Developer Facilities in violation of any federal, state or local law,
ordinance, regulation, rule, decision or policy statement regulating Hazardous Material, nor shall
Developer knowingly permit any subcontractor, employee or agent to do the same. "Hazardous
Material" means any and all pollutants, wastes, flammables, explosives, radioactive materials,
hazardous or toxic substances, materials or waste which is or becomes regulated by any local
governmental authority, the State of California or the United States Government and specifically
includes, without limitation, any material or substance which is (a) designated as a "hazardous
substance" pursuant to Section 311 of the Federal Water Pollution Control Act, 33 U.S.C.
Sections 1251 et seq. (33 U.S.C. Section 1321), (b) defined as a "hazardous waste" pursuant to
Section 1004 of the Federal Resource Conservation and Recovery Act, 42 U.S.C. Sections 6901 et
seq. (42 U.S.C. Section 6903), (c) defined as a "hazardous substance" pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended,
42 U.S.C. Sections 9601 et seq., (d) petroleum or petroleum products, (e) asbestos. (f) hydrocarbons
or (g) polychlorinated biphenyl ("PCB") or PCB -containing materials.
(i) Permits. The Developer represents and warrants that, to Developer's knowledge, all
governmental or other permits required to proceed with the acquisition, construction and installation
of the Developer Facilities have been or will be obtained in a timely manner and all fees relating
thereto have been or will be paid in a timely manner. The Developer represents and warrants that, to
Developer's knowledge, there is no material impediment to the Developer's proceeding with and
completing the acquisition, construction and installation of the Facilities or to the development of the
Subject Property as contemplated by the Developer. Notwithstanding the foregoing, the City and the
CFD acknowledge that the Developer intends to initially construct Facilities and obtain permits
solely for Phase I of the development of property within the CFD ("Phase I"), and that the CFD
intends to issue a first series of Bonds for the purpose of funding Impact Fees and/or Facilities for
Phase 1; and, at some time thereafter determined by the Developer in its sole discretion, construct
Facilities, obtain permits, and remove impediments, if any, for Phase II of the development of
property within the CFD ("Phase II"), with a second series of Bonds issued for the purpose of
funding Impact Fees and/or Facilities for Phase II.
10. Indemnification. The Developer agrees to protect, indemnify, defend and hold the
CFD and the City, and their respective directors, officers, employees and agents, and each of them,
harmless from and against any and all claims, losses, expenses, suits, actions, decrees, judgments,
awards, attorney's fees, and court costs (collectively "Claims")which the CFD or the City, or their
respective directors, officers, employees and agents, or any combination thereof, may suffer or which
may be sought against or recovered or obtained from the CFD or the City, or their respective
directors, officers, employees or agents, or any combination, thereof as a result of or by reason of or
arising out of or in consequence of (a) the acquisition, construction, installation or financing of the
Developer Facilities, (b) the materially inaccuracy of any representation or warranty made by the
Developer in this Acquisition Agreement, (c) any act or omission, negligent or otherwise, of the
Developer or any of its subcontractors, agents or anyone who is directly employed by or acting in
connection with the Developer in connection with the Developer Facilities, or (d) this Agreement. If
DOCSOC/ 129053 5v5/022658-0023
the Developer fails to do so, the CFD and the City shall each have the right, but not the obligation, to
defend the same and charge all of the direct or incidental costs of such defense, including any
attorneys fees or court costs, to and recover the same from the Developer. Developer further agrees
and covenants to, and shall fully indemnify, defend and hold harmless the City and the CFD, and
their directors, officers, employees, agents, and representatives, from and against any and all Claims
arising by reason of any death, bodily injury, personal injury, property damage or damage to the
environment to the extent arising from any use, storage, treatment, transportation, release or disposal,
on, about, around, under, or emanating from the Subject Property, of any Hazardous Materials as
defined in Section 9(h), by any person or entity (except the City, the CFD or persons or entities
acting on the City or CFD's behalf or under their control). Notwithstanding anything in the
preceding sentence to the contrary, the Developer's indemnification of the CFD and the City
provided in this Section shall apply to any and all Claims arising from the Developer's removal of
the City's existing water lines, including any existing water lines referenced in Exhibit A attached
hereto.
No indemnification is required to be paid by the Developer for any Claim, loss or expense to
the extent arising from the willful misconduct or negligence of the CFD or the City, or their
respective officers, employees or agents.
The provisions of this Section shall survive the termination of this Agreement.
11. Disclosures to Purchasers of Subject Property. The Developer covenants and
agrees that from and after the date hereof, it will provide all forms of disclosure of the Special Tax as
required by existing law and by any future laws. In particular, the Developer covenants and agrees
from and after the date hereof to provide the Special Tax disclosure notice required by
Section 53341.5 of the Act and to retain in its files copies of all notices signed by purchasers in
accordance with Section 53341.5. The City shall have the right to inspect and obtain copies of all of
the Developer's records regarding Special Tax disclosure. The Developer further agrees to include in
its contracts with purchasers of any of the Subject Property (other than persons and entities
purchasing completed units) entered into from and after the date hereof a requirement that such
purchasers (i) provide all forms of disclosure of the Special Tax required by law, (ii) retain signed
copies of the Section 53341.5 notice following the sale of any parcel comprising part of the Subject
Property to another, and (iii) provide the City on request an opportunity to review and obtain copies
of all records relating to disclosure of the Special Tax. Such contractual provision shall further
provide that the City and the CFD are third party beneficiaries of such disclosure requirements and
that the purchaser (other than persons and entities purchasing completed units) of any of the Subject
Property will indemnify the City, the CFD and their respective officers and employees for any failure
of such purchaser to disclose the Special Tax as required by law.
12. Developer Responsibilities. The Developer acknowledges that it has been and is
represented by its own separate legal counsel in regard to the proceedings for the formation of the
CFD, the levy of the Special Tax, the authorization and issuance of the Bonds, the negotiation of this
Agreement, and the process of constructing and installing the Developer Facilities, The Developer
accepts responsibility for and shall be responsible for identification of and for compliance with all
applicable laws pertaining to constructing and installing the Developer Facilities and the contract or
contracts pertaining thereto, including the laws that would apply to a facility being constructed under
the direction and supervision, or the authority, of the City. Notwithstanding the requirements of this
Agreement, the City makes no representation as to the applicability or inapplicability of any laws
regarding contracts, including contracts related to the construction and installation of the Developer
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DOCS 04C/ 1290535v5/022658-0023
Facilities, and especially the matters of competitive bidding and the payment of prevailing wages.
The City may, in its sole discretion, supply guidance to the Developer with respect to laws governing
the construction of an improvement by the City if requested to do so by the Developer; and the City
shall take no action against the Developer by reason of any act, or failure to act, of the Developer that
is in strict conformance with any written guidance provided to the Developer by the City Authorized
Representative. Whether or not the City shall have provided any such guidance to the Developer, the
Developer will neither seek to hold nor hold the City liable for any consequences of any failure by
the Developer to correctly determine applicability of any such requirements to any contract it enters
into, irrespective of whether the City knew or should have known about applicability of any such
requirement. This paragraph shall apply with respect to any enforcement action, whether public or
private, and whether brought by a public enforcement agency or by private civil litigation, against the
Developer or the City or both with respect to the matters addressed by this paragraph.
13. Notices. Any notices required to be given pursuant to this agreement shall be given
in writing and shall be mailed to the parties at the following addresses:
City or CFD: City of San Juan Capistrano
400 Main Street
San Juan Capistrano, California 92227-2941
Attention: Director of Utilities and
Director of Public Works
Developer: LB/Centra Tirador, LLC
' c/o Centra Realty Corporation
3 Park Plaza, Suite 1490
Irvine, CA 92614
Attention: President
14. Miscellaneous. This Agreement and any dispute arising hereunder shall be governed
by and interpreted in accordance with the laws of the State of California. Any action at law or in
equity arising under this Agreement brought by any party hereto for the purpose of enforcing,
construing or determining the validity of any provision of this Agreement shall be filed and tried in
the Orange County Superior Court, and the parties hereby waive all provisions of law providing for
the filing, removal or change of venue to any other court.
As used herein, the singular of any word includes the plural, and terms in the masculine
gender shall include the feminine and vice versa.
The parties hereto hereby agree that an implied standard of reasonableness shall govern all
actions of the parties hereunder, and the parties hereby covenant to one another to act in good faith
and to deal fairly with one another to effectuate the purposes of this Agreement.
This is intended to be a fully integrated agreement which contains the entire agreement
between the parties with respect to the matters pertaining to the process of payment for the Impact
Fees and Developer Facilities by the CFD and the acquisition of such Developer Facilities by the
' City.
Time is of the essence with respect to this Agreement and each and every provision hereof.
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DOC SOC/ 1290535v5/022658-0023
Except as may be specifically provided herein to the contrary, no third party shall be the
express or implied beneficiary of this Agreement or any of its provisions, and no such third party
may bring any action in law or equity with respect thereto.
IN WITNESS WHEREOF, the parties hereto have caused this Acquisition, Funding and
Disclosure Agreement to be executed by their authorized representatives as of the effective date
stated above.
CITY OF SAN JUAN CAPISTRANO,
on its own behalf and on behalf of the CFD
M
Mayor
Attest:
City Clerk of the City of San Juan Capistrano
LB/CENTRA TIRADOR, LLC,
a Delaware limited liability company
By: Centra Tirador, LLC
a Delaware limited liability company,
its Regular Managing Member
A-12
DOCSOC/ 1290535 v5/022658-0023
By: Centra Development Company, LP
a California limited partnership,
its Managing Member
By: Centra Realty Corporation,
a California corporation,
its General Partner
0
EXHIBIT A
IMPACT FEES, DEVELOPER FACILITIES AND ESTIMATED COSTS
' Phase I Phase 2
Description of Fees and Improvements (a) Total 102,100 SF 123,400 SF
Offsite Improvements (c)(a)
Calle Arroyo Street Improvements
$ 40,329
$ 40,329
$
Multi Purpose Trail
121,168
121,168
Estimated Soft Costs & Contingency
52.865
52.865
Total Offsite Improvements
$ 214.362
$ 214,362
$
On -Site Improvements t`il`l.
Well Fill Line (size to be determined)
$ 71,906
$ 71,906
$
12" Water Line
26,123
26,123
18" Sewer Line
173,072
173,072
Estimated Soft Costs & Contingency
88.749
88,749
Total On -Site Improvements
$ 359.850
$ 359.850
$ -
Water and Sewer Fees (b):
Sewer Capacity Fee & Connection Fee
$ 625,086
$ 283,021
$ 342,065
Water Capital Improvement Charge
108,240
48,974
59,266
Water Storage Fee
162,360
73,461
88,899
Water Capacity Charge
142,065
64,278
77,787
Meter Installation Fee
3,615
2,169
1,446
Non -Domestic Water Fee
172.011
172,011
Total Water and Sewer Fees
$ 1.213,377
$ 643,914
$ 569.463
City Impact Fees (b):
Capistrano Circulation Fee
$ 1,443,200
$ 653,440
$ 789,760
Estimated Traffic Fairshare Fees
360,000
360,000
-
'
Agricultural Preservation Fee
20,000
20,000
Drainage Area Fee
23.751
23.751
Total Impact Fees
$ 1.846.951
$ 1.057.191
$ 789,760
Project Management (10% of Hard Costs)
$ 43,260
$ 43.260
$
Subtotal Fees and Improvements
$ 3,659,279
$ 2.318,577
$ 1.340.702
10% Proposed Community Wide Facilities Charge
$ 365.928
$ 231,858
$ 134,070
Total CFD Fees and Improvements
$ 4.025.207
$ 2.550.435
$ 1.474.772
I I
Footnotes:
(a) Amounts represent estimates only and are subject to change.
c�bb The indicated Impact Fees are subject to change. The City may, in its sole discretion, at any time, increase City Impact Fees
applicable to the Subject Property, as permitted by law. Additionally, the Developer, in its discretion may add to or change the actual
Impact Fees to be financed through the CFD provided such additional Impact Fees are for authorized facilities of the CFD. Estimated
costs are subject to change.
t`) This description of the eligible improvements is preliminary, general and subject to change. The actual improvements eligible to be
financed through the CFD shall be based upon the final approved Plans and shall include CFD authorized facilities required to be
constructed in connection with development of the land within the CFD. Estimated costs are subject to change.
(d) Pursuant to Section 4 of the Agreement.
(`) Assumes budgeted items above include prevailing wage.
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DOCSOC/ 1290535v5/022658-0023
EXHIBIT B
FORM OF DEVELOPER FACILITIES PAYMENT REQUEST
CITY OF SAN JUAN CAPISTRANO
COMMUNITY FACILITIES DISTRICT NO. 2008-1 (VENTANAS BUSINESS PARK)
The undersigned hereby requests payment of the Acquisition Price of the Developer Facilitiy,
or Segment or Segments thereof, described in Attachment A attached hereto. Capitalized undefined
terms shall have the meanings ascribed thereto in the Acquisition, Funding and Disclosure
Agreement (the "Acquisition Agreement"), by and among the City of San Juan Capistrano (the
"City"), the City of San Juan Capistrano Community Facilities District No. 2008-1 (Ventanas
Business Park) (the "CFD"), and LB/Centra Tirador, LLC (the "Developer"). In connection with this
Payment Request, the undersigned hereby represents and warrants to the CFD and the City as
follows:
1. He (she) is a duly authorized officer of the Developer, qualified to execute this
request for payment on behalf of the Developer and knowledgeable as to the matters forth herein.
2. The Developer Facility(ies) described in Attachment A has been completed in
accordance with the Plans therefor.
3. The true and correct Actual Cost of each Developer Facility for which payment
is requested is set forth in Attachment A.
4. Attached hereto are invoices, receipts, worksheets and other evidence of costs
which are in sufficient detail to allow the City Authorized Representative to verify the Actual Cost of
each Developer Facility for which payment is requested.
5. There has not been filed with or served upon the Developer notice of any lien,
right to lien or attachment upon, or claim affecting the right to receive the payment requested herein
which has not been released or will not be released simultaneously with the payment of such obligation,
other than materialmen's or mechanics' liens accruing by operation of law. Copies of lien releases for
all work for which payment is requested hereunder are attached hereto.
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DOC SOC/ 129053 5v5/022658-0023
' 6. The Developer is in compliance with the terms and provisions of the Acquisition
Agreement and is not delinquent in the payment of Special Taxes.
J
u
I hereby declare under penalty of perjury that the above representations and warranties are
true and correct.
Date:
LB/CENTRA TIRADOR, LLC,
a Delaware limited liability company
By: Centra Tirador, LLC
a Delaware limited liability company,
its Regular Managing Member
A-2
V OCSOC/ 1290535v5/022658-0023
By: Centra Development Company, LP
a California limited partnership,
its Managing Member
By: Centra Realty Corporation,
a California corporation,
its General Partner
Developer Representative
APPROVAL BY THE CITY
AUTHORIZED REPRESENTATIVE
The Acquisition Price of each Developer Facility, , described in Attachment A has been
reviewed, verified and approved by the City Authorized Representative. Payment of the Acquisition
Price of each such Developer Facility is hereby approved.
Date:
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DOCSOC/ 1290535v5/022658-0023
City of San Juan Capistrano
Authorized Representative
EXHIBIT C
FORM OF CITY IMPACT FEE PAYMENT REQUEST
CITY OF SAN JUAN CAPISTRANO
COMMUNITY FACILITIES DISTRICT NO. 2008-1 (VENTANAS BUSINESS PARK)
The undersigned hereby requests payment of the Impact Fee reimbursement, described in
Attachment A attached hereto. Capitalized undefined terms shall have the meanings ascribed thereto
in the Acquisition, Funding and Disclosure Agreement (the "Acquisition Agreement'), by and
among the City of San Juan Capistrano (the "City"), the City of San Juan Capistrano Community
Facilities District No. 2008-1 (Ventanas Business Park) (the "CFD"), and LB/Centra Tirador, LLC
(the "Developer"). In connection with this Payment Request, the undersigned hereby represents and
warrants to the CFD and the City as follows:
1. He (she) is a duly authorized officer of the Developer, qualified to execute this
request for payment on behalf of the Developer and knowledgeable as to the matters forth herein.
2. The Impact Fees described in Attachment A have previously been paid by the
Developer and have not previously been reimbursed to the Developer from Eligible Funds.
3. Attached hereto are receipts, cancelled checks, or other evidence of payment in
sufficient detail to allow the City Authorized Representative to verify the Impact Fees for which
reimbursement is requested have previously been paid by Developer.
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DOCSOC/ 1290535v5/022658.0023
4. The Developer is in compliance with the terms and provisions of the Acquisition
I
Agreement and is not delinquent in the payment of any Special Taxes.
I hereby declare under penalty of perjury that the above representations and
warranties are true and correct.
Date:
LB/CENTRA TIRADOR, LLC,
a Delaware limited liability company
By: Centra Tirador, LLC
a Delaware limited liability company,
its Regular Managing Member
By: Centra Development Company, LP
a California limited partnership,
its Managing Member
By: Centra Realty Corporation,
a California corporation,
' its General Partner
By:
Developer Representative
1
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DOCSOC/ 129053 5v5/022658-0023
APPROVAL BY THE CITY
AUTHORIZED REPRESENTATIVE
The Impact Fee Reimbursement, described in Attachment A has been reviewed, verified and
approved by the City Authorized Representative. Payment is hereby approved.
Date:
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DOCS00 1290535v5/022658-0023
M
City of San Juan Capistrano
Authorized Representative
[Provide calculation of Impact F
DOC SOC/ 1290535v5/022658-0023
A-8
EXHIBIT "B"
OFFICIAL BALLOT
COMMUNITY FACILITIES DISTRICT NO. 2008-1
OF THE CITY OF SAN JUAN CAPISTRANO (VENTANAS BUSINESS CENTER)
SPECIAL TAX AND SPECIAL BOND ELECTION
September 16, 2008
This ballot represents _ votes.
To vote, stamp a cross (x) in the voting square after the word "YES" or
after the word "NO". All marks otherwise made are forbidden. All distinguishing marks
are forbidden and make the ballot void.
If you wrongly mark, tear or deface this ballot, return it to the City Clerk of
the City of San Juan Capistrano and obtain another.
PROPOSITION A: Shall Community Facilities District No. 2008-
1 of the City of San Juan Capistrano (Ventanas Business
Center) (the "District') incur an indebtedness and issue bonds of
YES
the District in the maximum principal amount of $7,500,000 with
'
interest at a rate or rates not to exceed the maximum interest
NO
rate permitted by law, to finance the Facilities and the Incidental
Expenses described in the Resolution Establishing the District of
the City Council of the City of San Juan Capistrano, adopted on
September 16, 2008?
YES
PROPOSITION B: Shall a special tax with a Rate and Method of
Apportionment as provided in the Resolution Establishing the
NO
District of the City Council of the City of San Juan Capistrano,
adopted on September 16, 2008 (the 'Resolution of Formation"),
be levied to pay for the Facilities, Incidental Expenses and other
purposes described in the Resolution of Formation, including the
payment of the principal of and interest on bonds issued by the
District to finance the Facilities and Incidental Expenses?
PROPOSITION C: For each year commencing with Fiscal Year
2008-09, shall the appropriations limit, as defined by
YES
subdivision (h) of Section 8 of Article XIIIB of the California
Constitution, for Community Facilities District No. 2008-1 of the
NO
City of San Juan Capistrano (Ventanas Business Center) be an
amount equal to $7,500,000?
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DOCSOC/ 1297857v2/022658-0023
EXHIBIT "C"
' RATE AND METHOD OF APPORTIONMENT FOR
CITY OF SAN JUAN CAPISTRANO
COMMUNITY FACILITIES DISTRICT NO. 2008-1
(VENTANAS BUSINESS CENTER)
A Special Tax as hereinafter defined shall be levied on all Assessor's Parcels in the City
of San Juan Capistrano Community Facilities District No. 2008-1 (Ventanas Business
Center) ("CFD No. 2008-1") and collected each Fiscal Year commencing in Fiscal Year
2008-2009, in an amount determined by the City Council of the City of San Juan
Capistrano, through the application of the Rate and Method of Apportionment as
described below. All of the real property in CFD No. 2008-1, unless exempted by law or
by the provisions hereof, shall be taxed for the purposes, to the extent and in the
manner herein provided.
A. DEFINITIONS
The terms hereinafter set forth have the following meanings:
' "Acre or Acreage" means the land area of an Assessor's Parcel as shown on
an Assessor's Parcel Map, or if the land area is not shown on an Assessor's
Parcel Map, the land area shown on the applicable final map, parcel map,
condominium plan, or other recorded County parcel map.
"Act" means the Mello -Roos Community Facilities Act of 1982, as amended,
being Chapter 2.5, Division 2 of Title 5 of the Government Code of the State of
California.
"Administrative Expenses" means the following actual or reasonably estimated
costs directly related to the administration of CFD No. 2008-1: the costs of
computing the Special Taxes and preparing the annual Special Tax collection
schedules (whether by the City or designee thereof or both); the costs of
collecting the Special Taxes (whether by the County or otherwise); the costs of
remitting the Special Taxes to the Trustee; the costs of the Trustee (including its
legal counsel) in the discharge of the duties required of it under the Indenture;
the costs to the City, CFD No. 2008-1 or any designee thereof of complying with
arbitrage rebate requirements; the costs to the City, CFD No. 2008-1 or any
designee thereof of complying with City, CFD No. 2008-1 or obligated persons
disclosure requirements associated with applicable federal and state securities
laws and of the Act; the costs associated with preparing Special Tax disclosure
statements and responding to public inquiries regarding the Special Taxes; the
costs of the City, CFD No. 2008-1 or any designee thereof related to an appeal of
the Special Tax; the costs associated with the release of funds from an escrow
account; and the City's annual administration fees and third party expenses.
DOCSOC/ 1297857v2/022658-0023
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Administrative Expenses shall also include amounts estimated or advanced by
the City or CFD No. 2008-1 for any other administrative purposes of CFD No.
2008-1, including attorney's fees and other costs related to commencing and
pursuing to completion any foreclosure of delinquent Special Taxes.
"Assessor's Parcel" means a lot or parcel shown in an Assessor's Parcel Map
with an assigned Assessor's parcel number.
"Assessor's Parcel Map" means an official map of the County Assessor of the
County designating parcels by Assessor's parcel number.
"Assigned Special Tax" means the Special Tax for each Assessor's Parcel of
Developed Property, as determined in accordance with Section C below.
"Backup Special Tax" means the Special Tax applicable to each Assessor's
Parcel of Developed Property, as determined in accordance with Section C
below.
"Bonds" means any bonds or other debt (as defined in Section 53317(d) of the
Act), whether in one or more series, issued by CFD No. 2008-1 under the Act.
"Building Square Footage" or "Building Square Foot" means the total
building square footage of the building(s) located on an Assessor's Parcel,
measured from outside wall to outside wall, exclusive of overhangs, porches,
patios, garages, carports, or similar spaces attached to the building. The
determination of Building Square Footage shall be made by reference to the
building permit(s) issued for such Assessor's Parcel, or as otherwise determined
by the CFD Administrator.
"CFD No. 2008-1" means the City of San Juan Capistrano Community Facilities
District No. 2008-1 (Ventanas Business Center).
"City" means the City of San Juan Capistrano.
"CFD Administrator" means an official of the City, or designee thereof,
responsible for calculating the Special Tax Requirement and providing for the
levy and collection of the Special Taxes.
"Council" means the City Council of the City.
"County" means the County of Orange.
"Developed Property" means, for each Fiscal Year, all Taxable Property,
exclusive of Taxable Public Property and Taxable Property Owner Association
Property, for which a building permit for new construction was issued prior to
March 1 of the prior Fiscal Year.
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' "Fiscal Year" means the period starting July 1 and ending on the following June
30.
"Indenture" means the indenture, fiscal agent agreement, resolution or other
instrument pursuant to which Bonds are issued, as modified, amended and/or
supplemented from time to time.
"Maximum Special Tax" means the Maximum Special Tax, determined in
accordance with Section C below that can be levied in any Fiscal Year on any
Assessor's Parcel.
"Non -Residential Property" means all Assessors' Parcels of Developed
Property for which a building permit(s) was issued for a non-residential use.
"Outstanding Bonds" means all Bonds which are deemed to be outstanding
under the Indenture.
"Proportionately" means, for Developed Property, that the ratio of the actual
Special Tax levy to the Assigned Special Tax is equal for all Assessors' Parcels
of Developed Property. For Undeveloped Property, "Proportionately" means that
the ratio of the actual Special Tax levy per Acre to the Maximum Special Tax per
Acre is equal for all Assessor's Parcels of Undeveloped Property.
"Property Owner Association Property" means any property within the
boundaries of CFD No. 2008-1 that is owned by or irrevocably dedicated to a
property owner association, including any master or sub -association.
"Public Property" means any property within the boundaries of CFD No. 2008-1
that is (i) used for rights-of-way or any other purpose and is owned by or
irrevocably offered for dedication to the federal government, the State of
California, the County, the City or any other public agency or (ii) encumbered by
an unmanned utility easement making impractical its utilization for other than the
purpose set forth in the easement, provided however that any property leased by
a public agency to a private entity and subject to taxation under Section 53340.1
of the Act shall be taxed and classified in accordance with its use.
"Residential Property" means all Assessor's Parcels of Developed Property for
which a building permit has been issued for purposes of constructing one or
more residential dwelling units.
"Special Tax" means the special tax to be levied in each Fiscal Year on each
Assessor's Parcel of Taxable Property to fund the Special Tax Requirement.
"Special Tax Requirement" means that amount required in any Fiscal Year for
CFD No. 2008-1 to: (i) pay debt service on all Outstanding Bonds; (ii) pay
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B.
C
periodic costs on the Bonds, including but not limited to, credit enhancement and
rebate payments on the Bonds; (iii) pay Administrative Expenses; (iv) pay any
amounts required to establish or replenish any reserve funds for all Outstanding
Bonds; (v) pay directly for construction of CFD No. 2008-1 facilities eligible under
the Act to the extent that the inclusion of such amount does not increase the
Special Tax levy on Undeveloped
anticipated delinquent Special Taxes
Taxes levied in the previous Fiscal Y
reduce the annual Special Tax levy,
pursuant to the Indenture.
"State" means the State of California.
Property; and (vi) pay for reasonably
based on the delinquency rate for Special
;ar; less (vii) a credit for funds available to
as determined by the CFD Administrator
"Taxable Property" means all of the Assessor's Parcels within the boundaries of
CFD No. 2008-1 which are not exempt from the Special Tax pursuant to law or
Section E below.
"Taxable Property Owner Association Property" means all Assessor's
Parcels of Property Owner Association Property that are not exempt pursuant to
Section E below.
"Taxable Public Property" means all Assessor's Parcels of Public Property that
are not exempt pursuant to Section E below.
"Trustee" means the trustee or fiscal agent under the Indenture.
"Undeveloped Property" means, for each Fiscal Year, all Taxable Property not
classified as Developed Property, Taxable Public Property or Taxable Property
Owner Association Property.
ASSIGNMENT TO LAND USE CATEGORIES
Each Fiscal Year, all Taxable Property within CFD No. 2008-1 shall be classified
as Developed Property (which shall be further classified as Residential Property
or Non -Residential Property), Taxable Public Property, Taxable Property Owner
Association Property, or Undeveloped Property, and shall be subject to Special
Taxes in accordance with the rate and method of apportionment determined
pursuant to Sections C and D below.
MAXIMUM SPECIAL TAX RATE
Developed Property
Maximum Special Tax
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The Maximum Special Tax for each Assessor's Parcel classified as
' Developed Property shall be the greater of (i) the amount derived
by application of the Assigned Special Tax or (ii) the amount
derived by application of the Backup Special Tax.
b. Assigned Special Tax
The Fiscal Year 2008-2009 Assigned Special Tax for each Land
Use Class is shown below in Table 1.
TABLE 1
Assigned Special Taxes for Developed Property in CFD No. 2008-1
(A) Fiscal Year 2008-2009
1 Residential Property $35,743 per Acre
2 Non -Residential $1.75 per Building Square Foot
Property
C. Backup Special Tax
The Fiscal Year 2008-2009 Backup Special Tax for an Assessor's
Parcel of Developed Property shall equal $35,743 per Acre.
d. Increase in the Assigned Special Tax and the Backup Special Tax
On each July 1, commencing July 1, 2009 the Assigned Special
Tax and the Backup Special Tax shall be increased by an amount
equal to two percent (2%) of the amount in effect for the previous
Fiscal Year.
2. Undeveloped Property, Taxable Public Property, and Taxable
Property Owner Association Property
a. Maximum Special Tax
The Maximum Special Tax for Undeveloped Property, Taxable
Public Property, and Taxable Property Owner Association Property
shall be $36,277 per Acre for Fiscal Year 2008-2009.
DOC SOC/ 1297857v2/022658-0023
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b. Increases in the Maximum Special Tax
On each July 1, commencing July 1, 2009, the Maximum Special
Tax for Undeveloped Property, Taxable Public Property, and
Taxable Property Owner Association Property shall be increased by
two percent (2%) of the amount in effect in the previous Fiscal
Year.
D. METHOD OF APPORTIONMENT OF THE SPECIAL TAX
14
Commencing with Fiscal Year 2008-2009 and for each following Fiscal Year, the
Council shall determine the Special Tax Requirement and shall levy the Special
Tax until the amount of Special Taxes equal the Special Tax Requirement. The
Special Tax shall be levied each Fiscal Year as follows:
First: The Special Tax shall be levied Proportionately on each Assessor's Parcel
of Developed Property at up to 100% of the applicable Assigned Special Tax;
Second: if additional monies are needed to satisfy the Special Tax Requirement
after the first step has been completed, the Special Tax shall be levied
Proportionately on each Assessor's Parcel of Undeveloped Property at up to
100% of the Maximum Special Tax for Undeveloped Property;
Third: If additional monies are needed to satisfy the Special Tax Requirement
after the first two steps have been completed, then the levy of the Special Tax on
each Assessor's Parcel of Developed Property whose Maximum Special Tax is
determined through the application of the Backup Special Tax shall be increased
in equal percentages from the Assigned Special Tax up to the Maximum Special
Tax for each such Assessor's Parcel;
Fourth: If additional monies are needed to satisfy the Special Tax Requirement
after the first three steps have been completed, then the Special Tax shall be
levied in equal percentages on each Assessor's Parcel of Taxable Public
Property and Taxable Property Owner Association Property up to the Maximum
Special Tax for Taxable Public Property or Taxable Property Owner Association
Property.
No Special Tax shall be levied on up to 5.52 Acres of Property Owner
Association Property and 0.06 Acres of Public Property. Tax-exempt status will
be irrevocably assigned by the CFD Administrator in the chronological order in
which property becomes Property Owner Association Property or Public
Property. However, should an Assessor's Parcel no longer be classified as
Public Property or Property Owner Association Property its tax-exempt status will
be revoked.
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' Property Owner Association Property or Public Property that is not exempt from
the Special Tax under this section shall be subject to the levy of the Special Tax
and shall be taxed Proportionately as part of the fourth step in Section D above,
at up to 100% of the applicable Maximum Special Tax for Taxable Public
Property or Taxable Property Owner Association Property.
F. APPEALS AND INTERPRETATIONS
Any landowner or resident may file a written appeal of the Special Tax on his/her
property with the CFD Administrator, provided that the appellant is current in
his/her payments of Special Taxes. During the pendency of an appeal, all
Special Taxes previously levied must be paid on or before the payment date
established when the levy was made. The appeal must specify the reasons why
the appellant claims the Special Tax is in error. The CFD Administrator shall
review the appeal, meet with the appellant if the CFD Administrator deems
necessary, and advise the appellant of its determination. If the CFD
Administrator agrees with the appellant, the CFD Administrator shall eliminate or
reduce the Special Tax on the appellant's property and/or provide a refund to the
appellant. If the CFD Administrator disagrees with the appellant and the
appellant is dissatisfied with the determination, the appellant then has 30 days in
which to appeal to the Council by filing a written notice of appeal with the City
' Clerk, provided that the appellant is current in his/her payments of Special Taxes.
The second appeal must specify the reasons for its disagreement with the CFD
Administrator's determination.
Interpretations may be made by the Council by ordinance or resolution for
purposes of clarifying any vagueness or ambiguity in this Rate and Method of
Apportionment.
G. MANNER OF COLLECTION
The Special Tax will be collected in the same manner and at the same time as
ordinary ad valorem property taxes; provided, however, that CFD No. 2008-1
may directly bill the Special Tax, may collect Special Taxes at a different time or
in a different manner if necessary to meet its financial obligations, and may
covenant to foreclose and may actually foreclose on delinquent Assessor's
Parcels as permitted by the Act.
H. PREPAYMENT OF SPECIAL TAX
The following definition applies to this Section H:
"CFD Public Facilities" means either $4.03 million in 2008 dollars, which shall
increase by the Construction Inflation Index on July 1, 2009, and on each July 1
thereafter, or such lower number as (i) shall be determined by the CFD
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Administrator as sufficient to provide the public facilities to be provided by CFD
No. 2008-1 under the authorized bonding program for CFD No. 2008-1, or (ii)
shall be determined by the Council concurrently with a covenant that it will not
issue any more Bonds to be supported by Special Taxes levied under this Rate
and Method of Apportionment as described in Section D.
"Construction Fund" means an account specifically identified in the Indenture
to hold funds which are currently available for expenditure to acquire or construct
public facilities eligible under the Act.
"Construction Inflation Index" means the annual percentage change in the
Engineering News -Record Building Cost Index for the City of Los Angeles,
measured as of the calendar year which ends in the previous Fiscal Year. In the
event this index ceases to be published, the Construction Inflation Index shall be
another index as determined by the CFD Administrator that is reasonably
comparable to the Engineering News -Record Building Cost Index for the City of
Los Angeles.
"Future Facilities Costs" means the CFD Public Facilities minus (i) public
facility costs previously paid from the Construction Fund, (ii) moneys currently on
deposit in the Construction Fund, and (iii) moneys currently on deposit in an
escrow fund that are expected to be available to finance facilities costs.
"Outstanding Bonds" means all Bonds which are deemed to be outstanding
under the Indenture after the first interest and/or principal payment date following
the current Fiscal Year.
1. Prepayment in Full
The obligation of an Assessor's Parcel to pay the Special Tax may be prepaid
and permanently satisfied as described herein; provided that a prepayment
may be made only for Assessor's Parcels of Developed Property and
Undeveloped Property for which a building permit has been issued, and only
if at the time of prepayment, there are no delinquent Special Taxes with
respect to such Assessor's Parcel and all other Assessor's Parcels which are
under the same ownership and located in CFD No. 2008-1. An owner of an
Assessor's Parcel intending to prepay the Special Tax obligation shall provide
the CFD Administrator with written notice of intent to prepay. Within 30 days
of receipt of such written notice, the CFD Administrator shall notify such
owner of the prepayment amount of such Assessor's Parcel. The CFD
Administrator may charge a reasonable fee for providing this service.
Prepayment must be made not less than 45 days prior to the next occurring
date that notice of redemption of Bonds from the proceeds of such
prepayment may be given to the Trustee pursuant to the Indenture.
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The Prepayment Amount (defined below) shall be calculated as summarized
' below (capitalized terms as defined below):
Bond Redemption Amount
plus
Redemption Premium
plus
Future Facilities Amount
plus
Defeasance Amount
plus
Administrative Fees and Expenses
less
Reserve Fund Credit
less
Capitalized Interest Credit
Total: equals
Prepayment Amount
As of the proposed date of prepayment, the Prepayment Amount (defined
below) shall be calculated as follows:
Paraaraph No.:
1. Confirm that no Special Tax delinquencies apply to such Assessor's Parcel.
2. For Assessor's Parcels of Developed Property, compute the Assigned
Special Tax and Backup Special Tax applicable for the Assessor's Parcel to
be prepaid. For Assessor's Parcels of Undeveloped Property (for which a
' building permit has been issued) to be prepaid, compute the Assigned
Special Tax and Backup Special Tax for that Assessor's Parcel as though it
was already designated as Developed Property, based upon the building
permit which has already been issued for that Assessor's Parcel.
3. (a) Divide the Assigned Special Tax computed pursuant to paragraph 2 by
the total estimated Assigned Special Taxes for the entire CFD No. 2008-1
based on the Developed Property Assigned Special Taxes which could be
charged in the current Fiscal Year on all expected development through
buildout of CFD No. 2008-1, excluding any Assessor's Parcels which have
been prepaid, and
(b) Divide the Backup Special Tax, computed pursuant to paragraph 2 by
the estimated Maximum Special Taxes from Developed Property at buildout
of CFD No. 2008-1, excluding any Assessor's Parcels which have been
prepaid.
4. Multiply the larger quotient computed pursuant to paragraph 3(a) or 3(b) by
the Outstanding Bonds to compute the amount of Outstanding Bonds to be
retired and prepaid (the "Bond Redemption Amount").
' 5. Multiply the Bond Redemption Amount computed pursuant to paragraph 4
by the applicable redemption premium, if any, on the Outstanding Bonds to
be redeemed (the "Redemption Premium").
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6. Compute the current Future Facilities Costs
7. Multiply the larger quotient computed pursuant to paragraph 3(a) or 3(b) by
the amount determined pursuant to paragraph 6 to compute the amount of
Future Facilities Costs to be prepaid (the "Future Facilities Amount").
8. Compute the amount needed to pay interest on the Bond Redemption
Amount from the first bond interest and/or principal payment date following
the current Fiscal Year until the earliest redemption date for the Outstanding
Bonds.
9. Determine the Special Taxes levied on the Assessor's Parcel in the current
Fiscal Year which have not yet been paid.
10. Compute the amount the CFD Administrator reasonably expects to derive
from the reinvestment of the Prepayment Amount less the Future Facilities
Amount and the Administrative Fees and Expenses from the date of
prepayment until the redemption date for the Outstanding Bonds to be
redeemed with the prepayment.
11. Add the amounts computed pursuant to paragraphs 8 and 9 and subtract
the amount computed pursuant to paragraph 10 (the "Defeasance
Amount").
12.Verify the administrative fees and expenses of CFD No. 2008-1, including
the costs of computation of the prepayment, the costs to invest the
prepayment proceeds, the costs of redeeming Bonds, and the costs of
recording any notices to evidence the prepayment and the redemption (the
"Administrative Fees and Expenses").
13. If reserve funds for the Outstanding Bonds, if any, are at or above 100% of
the reserve requirement (as defined in the Indenture) on the prepayment
date, a reserve fund credit shall be calculated as a reduction in the
applicable reserve fund for the Outstanding Bonds to be redeemed pursuant
to the prepayment (the "Reserve Fund Credit"). No Reserve Fund Credit
shall be granted if reserve funds are below 100% of the reserve
requirement.
14.If any capitalized interest for the Outstanding Bonds will not have been
expended at the time of the first interest and/or principal payment following
the current Fiscal Year, a capitalized interest credit shall be calculated by
multiplying the larger quotient computed pursuant to paragraph 3(a) or 3(b)
by the expected balance in the capitalized interest fund after such first
interest and/or principal payment (the "Capitalized Interest Credit").
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11
15. The Special Tax prepayment is equal to the sum of the amounts computed
pursuant to paragraphs 4, 5, 7, 11 and 12, less the amounts computed
pursuant to paragraphs 13 and 14 (the "Prepayment Amount").
16. From the Prepayment Amount, the amounts computed pursuant to
paragraphs 4, 5, 11, 13 and 14 shall be deposited into the appropriate fund
as established under the Indenture and be used to retire Outstanding Bonds
or make debt service payments. The amount computed pursuant to
paragraph 7 shall be deposited into the construction fund. The amount
computed pursuant to paragraph 12 shall be retained by CFD No. 2008-1.
The Prepayment Amount may be sufficient to redeem other than a
$5,000 increment of Bonds. In such cases, the increment above $5,000 or
integral multiple thereof will be retained in the appropriate fund established
under the Indenture to be used with the next prepayment of bonds or to make
debt service payments.
As a result of the payment of the current Fiscal Year's Special Tax levy
as determined under paragraph 9 (above), the CFD Administrator shall
remove the current Fiscal Year's Special Tax levy for such Assessor's Parcel
from the County tax rolls. With respect to any Assessor's Parcel that is
prepaid, the Council shall cause a suitable notice to be recorded in
compliance with the Act, to indicate the prepayment of Special Taxes and the
release of the Special Tax lien on such Assessor's Parcel, and the obligation
of such Assessor's Parcel to pay the Special Tax shall cease.
Notwithstanding the foregoing, no Special Tax prepayment shall be
allowed unless the amount of Assigned Special Taxes that may be levied on
expected Taxable Property at buildout of CFD No. 2008-1 both prior to and
after the proposed prepayment is at least 1.1 times the maximum annual debt
service on all Outstanding Bonds.
2. Prepayment in Part
The Special Tax on an Assessor's Parcel of Developed Property or an
Assessor's Parcel of Undeveloped Property for which a building permit has
been issued may be partially prepaid. The amount of the prepayment shall
be calculated as in Section H.1; except that a partial prepayment shall be
calculated according to the following formula:
PP = (PE — A) x F + A.
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These terms have the following meaning:
PP = the partial prepayment
PE = the Prepayment Amount calculated according to
Section H.1
F = the percentage by which the owner of the Assessor's
Parcel(s) is partially prepaying the Special Tax.
A = the Administration Fees and Expenses from Section H.1.
The owner of any Assessor's Parcel who desires such prepayment shall
notify the CFD Administrator of such owner's intent to partially prepay the
Special Tax and the percentage by which the Special Tax shall be prepaid.
The CFD Administrator shall provide the owner with a statement of the
amount required for the partial prepayment of the Special Tax for an
Assessor's Parcel within thirty (30) days of the request and may charge a
reasonable fee for providing this service. With respect to any Assessor's
Parcel that is partially prepaid, the City shall (i) distribute the funds remitted to
it according to Section H.1, and (ii) indicate in the records of CFD No. 2008-1
that there has been a partial prepayment of the Special Tax and that a portion
of the Special Tax with respect to such Assessor's Parcel, equal to the
outstanding percentage (1.00 - F) of the remaining Maximum Special Tax,
shall continue to be levied on such Assessor's Parcel pursuant to Section D.
I. TERM OF SPECIAL TAX
The Special Tax shall be levied for a term not to exceed 45 years commencing
with Fiscal Year 2008-2009.
K:\CLIENTS2\Sanlnan Capistrano\mello\Ventanas\RMA\RMA fnal.dw
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