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Resolution Number 11-06-07-06RESOLUTION NO. 11-06-07-06 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, APPROVING A FIRST AMENDED AND RESTATED JOINT COMMUNITY FACILITIES AGREEMENT, AN AGREEMENT REGARDING ACCESS EASEMENT AND AN ACCESS EASEMENT; MAKING CERTAIN DETERMINATIONS RELATING THERETO; AND AUTHORIZING CERTAIN OTHER ACTIONS IN CONNECTION THEREWITH AND CAPISTRANO UNIFIED SCHOOL DISTRICT, COMMUNITY FACILITIES DISTRICT NO. 2005-1 OF CAPISTRANO UNIFIED SCHOOL DISTRICT (WHISPERING HILLS) WHEREAS, the City of San Juan Capistrano (the "City") is a municipal corporation duly organized and validly existing under the laws of the State of California; and WHEREAS, the City, the Capistrano Unified School District (the "School District"), the Community Facilities District No. 2005-1 of Capistrano Unified School District (Whispering Hills) (the "CFD") and Whispering Hills, LLC, a Delaware limited liability company ("Prior Owner") have previously executed a Joint Community Facilities Agreement, dated as of July 1, 2005 ("JCFA") with respect to the CFD; and WHEREAS, Rancho San Juan Development LLC, a Delaware limited liability company (the "Landowner"), the successor in interest to the Prior Owner, has requested that the School District take certain action with. respect to the CFD, which action also require amending the JCFA; and WHEREAS, there have been presented at this meeting a form of First Amended and Restated Joint Community Facilities Agreement (the "Amended JCFA"), among the City, the School District, the CFD, the prior Owner and the Landowner; and WHEREAS, in partial consideration for the City to enter into the Amended JCFA, the Landowner proposes to grant the City a nonexclusive easement and right of way over certain property of the Landowner to provide ingress and egress to certain City property, pursuant to an Access Easement between the City and the Landowner (the "Access Easement") and an Agreement Regarding Access Easement between the City and the Landowner (the "Easement Agreement"), copies of which have been presented at this meeting . NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of San Juan Capistrano does hereby find as follows: Section 1: Approval of Amended JCFA. The form of Amended JCFA, as presented to this meeting (Exhibit A), is hereby approved. The Mayor or City Manager (or their designated representative), each acting alone (collectively the "Officers"), are hereby authorized and directed, for and on behalf of the City, to execute, acknowledge and deliver the Amended JCFA, in substantially the form presented to this meeting, with such changes therein as such Officers may require or approve, with the advice and 6/7/11 approval of the City Attorney and Nossaman LLP ("Special Counsel"), such approval to be conclusively evidenced by the execution and delivery thereof. Section 2: Approval of Easement Agreement and Access Easement. The forms of Easement Agreement and Access Easement, as presented at this meeting (Exhibit B), are hereby approved. The Officers are hereby authorized and directed, for and on behalf of the City, to execute, acknowledge and deliver. the Easement Agreement and Access Easement, in substantially the forms presented at this meeting, with such changes therein as such Officers may require or approve, with the advice and approval of the City Attorney and Special Counsel, such approval to be conclusively evidenced by the execution and delivery thereof. Section 3: Other Acts. The Officers and staff of the City are hereby authorized and directed, jointly and severally, to do any and all things, to execute and deliver any and all documents, which in consultation with Special Counsel, they may deem necessary or advisable in order to effectuate the purposes of this Resolution, and any and all such actions previously taken by such Officers or staff members are hereby ratified and confirmed. Section 4: Effective Date. This Resolution shall take effect upon adoption. PASSED, APPROVED, AND ADOPTED this 7 I day of June, 2011. AM ALLEVATO, MAYOR 2 617/11 STATE OF CALIFORNIA ) COUNTY OF ORANGE CITY OF SAN JUAN CAPISTRANO ) I, MARIA MORRIS, appointed City Clerk of the City of San Juan Capistrano do certify that the foregoing Resolution No. Council of the City of San Juan Capistrano day of June 2011, by the following vote: AYES: COUNCIL MEMBERS: Freese, NOES: COUNCIL MEMBER: None ABSENT: COUNCIL -MEMBER: None IvIARTA MORRI$, Vdity Berk S '11-06-07-01 was duly adopted by t at a Regular meeting thereof, held hereby i.e City the 7t Reeve, Taylor, Kramer and Mayor Allevato 6/7/11 FIRST AMENDED AND RESTATED JOINT COMMUNITY FACILITIES AGREEMENT among CAPISTRANO UNIFIED SCHOOL DISTRICT, COMMUNITY FACILITIES DISTRICT NO. 2005-1 OF CAPISTRANO UNIFIED SCHOOL DISTRICT (WHISPERING HILLS), CITY OF SAN JUAN CAPISTRANO, RANCHO SAN JUAN DEVELOPMENT LLC and WHISPERING HILLS, LLC FINAL 5/31111 158190.6 EXHIBIT A FIRST AMENDED AND RESTATED JOINT COMMUNITY FACILITIES AGREEMENT AMONG CAPISTRANO UNIFIED SCHOOL DISTRICT, COMMUNITY FACILITIES DISTRICT NO. 2005-1 OF CAPISTRANO UNIFIED SCHOOL DISTRICT (WHISPERING HILLS), CITY OF SAN JUAN CAPISTRANO, RANCHO SAN JUAN DEVELOPMENT LLC AND WHISPERING HILLS, LLC THIS FIRST AMENDED AND RESTATED JOINT COMMUNITY FACILITIES AGREEMENT AMONG CAPISTRANO UNIFIED SCHOOL DISTRICT, COMMUNITY FACILITIES DISTRICT NO. 2005-1 OF CAPISTR.ANO UNIFIED SCHOOL DISTRICT (WHISPERING HILLS), CITY OF SAN JUAN CAPISTRANO, RANCHO SAN JUAN DEVELOPMENT LLC AND WHISPERING HILLS, LLC. ("F/A JCFA") dated this _ day of '2011, by and among the CAPISTRANO UNIFIED SCHOOL DISTRICT, of Orange County, California, a school district organized under the laws of the State of California ("School . District" and "State"), COMMUNITY FACILITIES DISTRICT NO. 2005-1 (WHISPERING HILLS), a community facilities district formed and.operating pursuant to State laws including the Act (as defined below) ("CFD No. 2005-1 "), the CITY OF SAN JUAN CAPISTRANO, a general law city ("City"), RANCHO SAN JUAN DEVELOPMENT LLC, a Delaware limited liability company ("Landowner") and WHISPERING HILLS, LLC, a Delaware limited liability company ("Prior Owner"), individually "Party" and in some instances referred to herein collectively as the "Parties." RECITALS A. The City, School District and Landowner's predecessor -in -interest, Prior Owner, entered into that certain Joint Community Facilities Agreement among Capistrano Unified School District and City of San Juan Capistrano and Whispering Hills, LLC relating to Community Facilities District No. 2005.1 of the Capistrano Unified School District (Whispering Hills) as of July 1, 2005 ("JCFA"), with respect to proposed CFD No. 2045-1. CFD No, 2005-1 has now been formed, pursuant to the provisions of the Mello -Roos Community Facilities Act of 1982, as amended, being Government Code Section 53311 et seq. ("Act"), as to the property described on Exhibit "A" ("Property"), and is added hereto as a Party. Prior Owner has assigned the JCFA to Landowner, and the Property is included in CFD No. 2005-1. B. Landowner has requested that CFD No. 2005-1 conduct proceedings to consider reducing the "Special Taxes" of CFD No. 2005. 1, pursuant to the Act, which proceedings are now pending ("SCT Revision Proceedings"), and if completed as proposed by Landowner, will reduce the Special Taxes and the amount of bonds to be issued by CFD No. 2005-1. In conjunction with the SCI` Revision Proceedings, the School District, CFD No. 2005-1, Landowner, and Prior Owner expect to enter into a First Amended Impact Mitigation Agreement related to the Whispering Hills Project and Community Facilities District No. 2005-1 ("F/A Agreement"), which will, among other matters, specify the parameters for issuance of two series of bonds of CFD No. 2005-1 ("Bonds") to finance School Facilities as described and defined in the F/A Agreement, payment of the "Incremental Payment Obligation" provided for in the FIA Agreement and City Facilities (defined below). The City, School District, CFD No. 2005-1, Prior Owner and Landowner intend to enter into this FIA JCFA to supersede the JCFA concurrent with the execution of the F/A FINAL 5/31/11 2 158190.6 Agreement. This F/A JCFA shall become effective (°`Effective Date") on the same conditions and date as the F/A Agreement. C. Landowner is the owner and developer of the Property and has obtained the necessary development approvals ("City Entitlements") to construct approximately 155 residential "Dwelling Units" on the Property ("Project"), and to provide the required infrastructure for such Dwelling Units, as described in Exhibit "B" prepared by David Taussig &. Associates ("Special Tax Administrator for CFD No. 2005-1") based on information provided by Landowner. CFD No. 2005-1 has been authorized, pursuant to the Act, to finance School Facilities as described in the F/A Agreement, certain roadway, water, sewer, storm drain and other public improvements that are included in City fee programs described in Exhibit "C" hereto ("City Fee Facilities") and other improvements, described on Exhibit "C" that have been constructed by the Prior Owner, or in the future may be constructed by Landowner and acquired by City, to be owned and operated by the City ("Acquisition Facility(ies)"). The City Fee Facilities are to be provided in lieu of the payment of certain fees imposed by the City as a condition of development of the Project ("City Fees"). Additional capital improvements of the City that are to be constructed by the City and that relate to needs created by development of the Project may also be financed through CFD No. 2005-1 ("Additional City Facilities"). The Additional City Facilities, together with the Acquisition Facility(ies) and City Fee Facilities, are collectively referred to herein as the "City Facilities." Proceeds of Special Takes and Bonds to be provided to City for City Facilities shall be provided pursuant to this F/A JCFA, so long as consistent with applicable law, including the Act, federal law relating to use of proceeds of tax-exempt bonds for capital facilities, not services, maintenance or repair, and Landowner shall comply with the applicable provisions of Article 2 (commencing with Section 1770) of Chapter 1 of Part 7 of Division 2 of the Labor Code ("Labor Compliance Requirements" and "LCR"). D. The cost of the School Facilities was determined at the time of formation of CFD No. 2005-1 to be funded by a larger share of the proceeds of the Special Taxes and Bonds of CFD No. 2005-1 than the City Facilities. Such is determined to be the case as to this F/A JCFA, therefore the School District was determined, and is hereby determined, to be the governing body for the administration, levy of Special Taxes, and issuance of Bonds of CFD No. 2005-1. E. The provision of the School Facilities and the City Facilities is necessitated by the development of the Project within CFD No. 2005-1 and the Parties hereto find and determine that the residents of the City, the School District, and CFD No. 2005-1 will be benefited by the construction and/or acquisition of the City Facilities and the School Facilities, and as such, this F/A JCFA is beneficial to the interests of such residents of the City and the School District. F. The Parties hereto intend to have CFD No. 2005-1, to the extent provided in the F/A Agreement and this F/A JCFA, assist in funding the City Facilities based on amounts which will vary depending on the interest rate at which the Bonds are issued as shown on Exhibit "B" and as provided in the F/A Agreement and applicable law, including the Act and federal law pertaining to use of proceeds of the Bonds. G. The City is authorized by Section 53313.5 of the Act to assist in the financing of the acquisition and/or construction of the City Facilities and the School District is authorized to assist in the financing of the School Facilities. This Agreement constitutes an amended joint community facilities agreement, within the meaning of Section 53316.2 of the Act, by and among the City, FINAL 5/31/11 3 158190.6 Prior Owner, Landowner, CFD No. 2005-1, and the School District, pursuant to which CFD No. 2005-1 was and is authorized to finance the construction and/or acquisition of the City Facilities to the extent and as provided in this F/A JCFA and the F/A Agreement. As authorized by Section 53316.6 of the Act, responsibility for constructing, providing and operating the School Facilities is agreed to be the function of the School District and responsibility for constructing, providing for and operating the City Facilities is agreed to be the function of the City. W#J"TD D151DQ1111 NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, the parties hereto agree as follows: 1. Recitals. Each of the above recitals is incorporated herein and is true and correct. 2. S/T Revision Proceedings. At the request of Landowner, CFD No. 2005-1 has initiated proceedings to consider reducing the Special Taxes of CFD No. 2005-1. Sale of Bonds and Use of Proceeds. (a) The issuance and sale of Bonds and allocation of proceeds of the. Special Taxes of CFD No. 2005-1 and proceeds of the Bonds shall be as set forth in the F/A Agreement and this F/A JCFA. CFD No. 2005-1 shall maintain records consistent with generally accepted accounting procedures as determined by CFD No. 2005-1 relating to the disbursements of proceeds of the Special Taxes and the proceeds of the sale of each series of the Bonds. (b) Pursuant to the F/A Agreement, Special Taxes shall be levied on property within CFD No. 2005-1 prior to the issuance of all Bonds of CFD No. 2005-1 to finance School Facilities and City Facilities. Of the amount of such Special Taxes collected by CFD No. 2005-1 and deposited in the "Special Fund" established pursuant to the F/A Agreement, 60% shall be disbursed to finance School Facilities and 40% shall be disbursed to finance City Facilities. On the first business day following each April l funds in the Special Fund as of March 1, and October 1 funds in the Special Fund as of September 1, CFD No. 2005-1 shall be disbursed to City an amount equal to 40% of the amount then on deposit in the Special Fund. Of such amount disbursed to the City, 88% shall be disbursed by City in the priority specified in Section 4(c) below and 12% shall be used by the City to fund Additional City Facilities. (c) Each series of Bonds shall be issued pursuant to a fiscal agent agreement, trust indenture or similar document ("Indenture"), The indenture shall establish a City Facilities Account ("City Facilities Account") into which the proceeds of each series of Bonds (to the extent provided in the F/A Agreement) shall be deposited to finance all or a portion of the City Facilities listed in Exhibit C, in the amounts and to the extent provided in the F/A Agreement, Landowner acknowledges that City shall not be liable for CFD No. 2005-1's failure to issue Bonds or the failure to issue Bonds in an amount sufficient to pay for all or any part of the School Facilities and City Facilities. In no event will an act, or an omission or failure to act, excepting only an event of willful misconduct, by the City with respect to the disbursement or nondisbursement of funds pursuant to this F/A JCFA or by CFD No. 2005-1 with respect to the provision of any other funding for the School Facilities or the City Facilities subject the City to liability hereunder. FINAL 5/31/11 4 158190,6 4. Disbursements. (a) Landowner acknowledges that neither the City, School District nor CFD No. 2005.1 has any obligation to pay any amount with respect to City Facilities except as to the amount available in the Special Fund and City Facilities Account from time to time, regardless of the cost of the City Facilities, nor will the unavailability of such funds reduce the amounts owed by Landowner to City with respect to City Facilities. The proceeds of the Bonds designated for the City Facilities, to the extent provided in the F/A Agreement and this F/A JCFA, shall be held by the fiscal agent or trustee for the Bonds ("Fiscal Agent") in the City Facilities Account, which shall be a separate account. Funds in the City Facilities Account shall be invested by the Fiscal Agent, as determined by the Fiscal Agent, and earn and accumulate interest thereon as provided in the applicable Indenture. Funds in the City Facilities Account shall be available to finance the City Facilities, as provided for in this F/A JCFA, except to the extent CFD No. 2005-1 determines interest earnings must be rebated to the United States in accordance with the Internal Revenue Code of 1986, as amended. Landowner agrees that City shall be entitled to receive an amount equal to 12% of the total amount deposited in the City Facilities Account with respect to each series of Bonds for Additional City Facilities ("Additional City Facilities Amount"). City agrees that the provisions of this F/A JCFA with respect to the funding to be provided from the Special Fund and City Facilities Account for Additional City Facilities shall fully satisfy the provisions of Section 6.7 of that certain "Amended Development Agreement for Whispering Hills Estates" by and between the City and Landowner dated July 16, 2009. The foregoing has no applicability to School District nor CFD No. 2005-1. (b) The Fiscal Agent shall make disbursements to City from the City Facilities Account in accordance with the terms of this F/A JCFA and the Indenture. Neither the School District nor CFD No. 2005-1 shall be responsible to the City for costs incurred by the City as a result of withheld or delayed payments. (c) The City agrees that prior to requesting payment from CFD No. 2005-1 relating to City Fee Facilities and Additional City Facilities it shall review, verify, and approve all costs included in its request and (a)will have already paid such costs of City Fee Facilities and Additional City Facilities from its own funds or shall have prepared a check for disbursement which will be mailed or hand delivered within 48 hours of receipt of CFD No. 2005-1 funds, (b) or will have already encumbered the funds requested and will trace and remit to CFD No. 2005-1 all earnings, if any, by the City in excess of the yield on the applicable Bonds accruing from the investment of the proceeds of the Bonds requested, from the date of receipt of such proceeds by the City to the date of expenditure by the City of such proceeds for verified legitimate capital costs of the City Fee Facilities or Additional City Facilities as herein described, and (c) City Fee Facilities and Additional City Facilities for which payment is requested, pursuant thereto were or will be constructed in accordance with applicable law, including the LCR to the extent the City determines it is applicable. Such remittance, if any, shall occur on the earlier of the date of expenditure of such proceeds or each anniversary date of the transfer of such proceeds from CFD No. 2005-1 to the City. The City agrees that in processing the above disbursements it will comply with all applicable law for the expenditure of Bond proceeds including the Act, as amended, the Internal Revenue Code of 1986, and any amendments thereto. Prior Owner and Landowner have advanced to the City amounts for certain City Fee Facilities pursuant to the JCFA, as specified in Exhibit "C." Consequently, as between Landowner and City, the first priority for the disbursement of funds received from the Special Fund in accordance with Section 3(b) above and from the City Facilities FINAL 5/31/11 5 158190.6 Account shall be those amounts previously advanced, amounts attributable to the Additional City Facilities as provided herein, and upon City's receipt of the disbursement of funds from the City Facilities Account and the Special Fund, Landowner shall be reimbursed and repaid for its prior advances by the City in an amount equal to 88% of such disbursements and City shall retain 12% of such disbursement for Additional City Facilities. If Landowner or its`designee is required to advance additional funds to the City for City Fee Facilities to the extent herein provided prior to the availability of sufficient funds in the Special Fund or the City Facilities Account, such advances shall be reimbursed by City to Landowner at the time, and only to the extent, funds in an equal amount are disbursed to the City for City Fee Facilities in satisfaction of the corresponding City Fees from the Special Fund or City Facilities Account. City and Prior Owner acknowledge that the City has no obligation to reimburse the Prior Owner for any amounts provided for in this F/A JCFA. (d) The City agrees to maintain adequate internal controls over its payment function and to maintain accounting records in accordance with generally accepted accounting procedures., The City will, upon request, provide to CFD No. 2005-1 its annual financial report certified by an independent certified public accountant for purposes of calculating CFD No. 2005.1's arbitrage rebate obligations, if any. CFD No. 2005-1 shall have the right to conduct its own audit of the City's records at reasonable times and during normal business hours. (e) Upon receipt of Landowner's written request, the City shall submit a request for payment for City Fee Facilities to CFD No. 2005-1 to send to the Fiscal Agent, which shall be in the form attached hereto as Exhibit "D", shall be signed on behalf of CFD No. 2005-1 by the Deputy Superintendent, Business Support Services of School District or written authorized designee and by the City Manager or written authorized designee of City, and shall be for the exact amount paid or encumbered or to be disbursed as provided in paragraph (c) above by the City for City Fee Facilities costs. At the same time as the City submits a payment request to CFD No. 2005-1 pursuant to this Section 4(e) or a payment request pursuant to Section 5(d) below, it may also submit a payment request for Additional City Facilities to the extent, and as limited by this F/A JCFA, including not by way of limitation, Recital C above and Exhibit "C," in an amount equal to 25% of the amount in such other payment request, but only until the amount disbursed to the City with respect to the applicable series of Bonds equals the Additional City Facilities Amount. Upon receipt of an approved payment request by CFD No. 2005-1 and City completed in accordance with the terms of this FIA JCFA, the Fiscal Agent shall wire transfer such portion of requested funds as are then available for release from the City Facilities Account pursuant to the Indenture to the City's bank account, as directed by the City. If there are insufficient funds available in the City Facilities Account to pay the entire amount requested, the unfunded amount shall be paid as soon as possible following the deposit of additional funds in the City Facilities Account. If more than one payment request has been submitted, the Fiscal Agent shall make payment on all payment requests from available funds in proportion to the total amount submitted. (f) The provisions of this FIA JCFA shall in no way relieve the Landowner from the payment of any fees charged by the City, nor does any provision of this F/A JCFA constitute deferral or any fee or facility required to be paid or provided by the Landowner with respect to the development of the Property when otherwise due under the policies and procedures of the City. If the City Fees which would otherwise be due to the City from the Project ultimately are determined to be less than the amounts, if any, deposited in the City Facilities Account, the Landowner shall not be entitled to any rebate or other credit or consideration, it being intended that FINAL 5/31/11 6 158190.5 the amount deposited in the City Facilities Account be applied solely as a credit up to the amount of the total City Fees otherwise due with respect to the Project, and the Landowner bears the risk that the total of such City Fees are less than the amount deposited in the City Facilities Account.. Any deposit to the City Facilities Account shall in no way fix the amount of the City Fees due with respect to the Project, and any increase in City Fees from and after the date of this F/A JCFA shall be taken into account in determining the amount of the credit to be given pursuant to this F/A JCFA, except as may have otherwise been agreed to by the City and the Landowner. If the total City Fees due with respect to the Project are greater than the amounts, if any, deposited to the City Facilities Account, the excess shall be charged to the Landowner in the same manner that such City Fees would be charged by the City in the absence of this F/A JCFA. This F/A JCFA shall in no way be construed as a deferral of any City Fee otherwise due with respect to the Project and amounts remaining in the City Facilities Account when it is closed, if any, shall be transferred as provided in Section 8.4 of the F/A Agreement. 5. City Acquisition of Acquisition Facility(ies). (a) Plans and Specifications. Landowner shall be responsible for the preparation of the plans and specifications ("Plans and Specifications") for each Acquisition Facility(ies) described in Exhibit C, which shall relate to the need created by development of the Project. The Plans and Specifications shall conform to the requirements of the City for the Acquisition Facility(ies) and shall be subject to the review and approval by the City. (b) Construction and Inspection of the Acquisition Facility(ies). Each Acquisition Facility(ies) shall be constructed in accordance with the Plans and Specifications as approved by the City. Landowner shall be solely responsible for the bidding, contracting and construction of the Acquisition Facility(ies) and each Acquisition Facility that is acquired with the proceeds of the Bonds shall be bid, contracted and constructed in accordance with the requirements set forth in this Section 5. Neither School District nor CFD No. 2005-1 shall have any responsibility whatsoever for the bidding, contracting and/or construction of the Acquisition Facility(ies). The construction of each Acquisition Facility shall be subject to inspection by the City, Upon the request of Landowner, the City shall notify CFD No. 2005-1 and Landowner in writing when the Acquisition Facility(ies) has been substantially completed in accordance with the Plans and Specifications and when the Acquisition Facility(ies) has been finally completed and is ready for acceptance by the City Engineer. In order for Acquisition Facility(ies) to be eligible to be financed with the proceeds of the Bonds, Prior Owner and Landowner shall have complied with and shall prospectively comply with the following conditions precedent: (i) City shall approve the Plans and Specifications and the construction bid documents, (ii) the contractor to whom the construction contract is awarded shall comply with the LCR to the extent determined applicable by the City and pay not less than the prevailing rates of wages for all construction work pursuant to Labor Code Sections 1770, 1773 and 1773. 1, and (iii) the construction contract shall be awarded, on the basis of competitive bids, to the lowest, responsible bidder. City, Prior Owner and/or Landowner shall affirm and warrant that Landowner's compliance with all ,provisions of this Section 5(b) ensures that the Acquisition Facility(ies) to be acquired with the proceeds of the Bonds is consistent with the Act, the LCR to the extent determined applicable by the City, and shall be constructed as if it had been constructed by the City. For purposes of this Agreement, an Acquisition Facility(ies) shall be deemed "substantially completed" when Landowner has notified the City that the Acquisition Facility(ies) FINAL 5/31/11 7 158190.6 has been completed in accordance with its Plans and Specifications, the City's inspector has inspected the facility, prepared a final "punch list" and has determined that the punch list items required to be completed are items not required for the safe operation of the Acquisition Facility(ies) and can therefore be completed after the Acquisition Facility(ies) has been accepted by the City, and provision has been made to the City's satisfaction for completion of such items. For purposes of this Agreement, "final completion" of the Acquisition Facility(ies) shall be deemed to have occurred, when all punch list items have been completed to the satisfaction of the City and all contractors and subcontractors constructing the grading improvements shall have provided lien and material releases. (c) Acquisition and Ownership of the Acquisition Facility(ies). Upon receipt by CFD No. 2005-1 of notification by the City that an Acquisition Facility(ies) has been completed in accordance with the provisions hereof, the Acquisition Facility(ies) shall be deemed eligible for acquisition by the City. Simultaneously upon acquisition of the Acquisition Facility(ies) by the City, title to the land or, if acceptable to the City, an irrevocable offer of dedication of the land,. underlying the Acquisition Facility(ies) shall be conveyed to the City if such title or irrevocable offer of dedication has not previously been conveyed to the City. Neither the School District, CFD No. 2005-1 nor the City is directly or indirectly obligated, indebted or otherwise liable for the payment of the "Acquisition Price," or any portion thereof, of the Acquisition Facility(ies). Upon acceptance of the Acquisition Facility(ies) by the City, the City shall incorporate the Acquisition Facility(ies) in the City's public works system. Following the expiration of any warranty period applicable to the construction of the Acquisition. Facility(ies) during which warranty period Landowner shall be responsible for the maintenance of the Acquisition Facility(ies), the City shall thereafter be responsible for the maintenance of the Acquisition Facility(ies) in accordance with all applicable City maintenance procedures and practices. (d) Payment Requests. The form of payment request to be submitted by Landowner to City and by City to CFD No. 2005-1 in requesting payment by the District of the Acquisition Price with respect to an Acquisition Facility(ies) shall be substantially in the form of Exhibit D-1 hereto. The Acquisition Price of an Acquisition Facility(ies) shall include all actual costs and expenses relating to the planning, design, engineering, construction and inspection of the Acquisition Facility(ics) substantiated to the reasonable satisfaction of City. Within ten (10) business days of Landowner's submission to City of a payment request, City shall determine if the Acquisition Facility(ies) has been finally completed and shall either deny or approve the payment request and send it to CFD No. 2005-1, which approval shall not be unreasonably withheld. if City denies any payment request it shall provide Landowner a detailed written explanation describing the reasons or rational for such denial. All denied payment requests may be resubmitted for approval. Landowner shall reimburse City for its actual costs incurred in connection with the processing of such payment requests, including the inspection of the Acquisition Facility(ies) and such amounts shall be included in the Acquisition Price paid from the City Facilities Account. The City shall send approved payment requests to CFD No. 2005-1, which within ten (10) business days will forward such request to the Fiscal Agent, The Fiscal Agent shall wire transfer the amount of the approved Acquisition Price to the City as designated by City. City will in turn make payment to Landowner as specified in the payment request, The sole source of funds for payment FINAL 5/31/11 8 15819016 of the Acquisition Price of an approved Acquisition Facility(ies) shall be the funds on deposit in the City Facilities Account and funds disbursed to the City from the Special Fund. 6. Tax Matters. In connection with the issuance of any Bonds, where a portion of the proceeds will be deposited in the City Facilities Account for the payment of City Facilities, City agrees to execute and deliver such certifications and agreements as may be reasonably required in order for Bond Counsel for CFD No. 2005-1 to conclude that interest on such Bonds will be excluded from gross income under Section 103 of the internal Revenue Code of 1986. City agrees that it shall not use proceeds of Bonds provided to pay for City Facilities in any manner that would cause interest on the Bonds to become included in gross income for federal income tax purposes. City represents the following with respect to the use of the proceeds of the Bonds provided to fund City Facilities: (a) City expressly acknowledges that the Bonds are subject to Federal tax requirements applicable to the tax-exempt securities; (b) City expressly confirms and warrants to CFD No. 2005-1 that the City Facilities financed hereunder have not been previously financed with the proceeds of other tax-exempt securities or bonds; and (c) City agrees to promptly provide written notice to CFD No. 2005-1 of any such financing of City Facilities financed hereunder until the issuance of the Bonds. City reasonably expects to expend the proceeds of the Bonds on City Facilities as identified in Exhibit "C," attached hereto, and by this reference herein incorporated, within three (3) years from the date of issuance of the Bonds. City further agrees to maintain proceeds of the Bonds provided to pay for City Facilities in a separate accounting, apart from all other accountings of City. City shall maintain adequate controls over its payments, and of proceeds of the Bonds provided to pay for City Facilities accounting records, in accordance with generally accepted accounting principles as to its receipt and expenditure of proceeds of Bonds provided to pay for City Facilities. City will, upon request, provide CFD No. 2005-1 and/or Landowner with access to City records related to the City Facilities and will provide to CFD No. 2005-1 and/or Landowner, its annual financial report certified by an independent certified public accountant upon either Party's request and payment of applicable copying charges, if any, in accordance with the City's Public Record Act guidelines. CFD No. 2005-1 agrees to maintain full and accurate records of all amounts, and investment earnings, if any, expended for such Projects. CFD No. 2005-1 will, upon request, provide City and/or the Landowner with access to CFD No. 2005-1's records relating to the City Facilities Account. 7. Indemnification. Landowner shall assume the defense of, indemnify and save harmless, School District, CFD No. 2005-1 and the City, their respective officers, employees and agents, and each and every one of them, from and against all actions, damages, claims, losses or expenses of every type and description to which they may be subjected or put, by reason of or resulting from, any act or omission of Landowner with respect to Landowner's obligations under this F/A JCFA. This shall include any and all claims, actions, damages, losses, or expense of every type or description relating to the failure of Prior Owner or Landowner to comply with the LCR as FINAL 5/31/11 9 158190.6 to any City Fee Facilities, Acquisition Facilities, or privately -funded public improvements required by City Entitlements of the Project; provided, however, that Landowner shall not be required to indemnify any person or entity as to damages resulting from willful misconduct of such person or entity or their officers, agents or employees. 8. Allocation of Special Taxes. The Board of Trustees of School District, as the governing body of CFD No. 2005-1, shall annually levy a Special Tax, subject to completion of the SIT Revision Proceedings, as provided for in the S/T Revision Proceedings. The entire amount of any Special Tax levied by CFD No. 2005-1, as provided in the F/A Agreement, shall be allocated to CFD No. 2005-1, as provided in the F/A Agreement, 9. Amendment. This FIA JCFA may be amended at any time but only in writing signed by each Party hereto. 10. Entire Agreement. This FIA JCFA contains the entire agreement between the parties with respect to the matters provided for herein and supersedes the JCFA. 11. Notices. Any notice,. payment or instrument required or permitted by this Agreement to be given or delivered to either party shall be deemed to have been received when personally delivered or seventy --two hours following deposit of the same in any United States Post Office in California, registered or certified, postage prepaid, addressed as follows: School District: Capistrano Unified School District 32972 Calle Perfecto Sari Juan Capistrano, California 92675 Attention: Deputy Superintendent, Business Services CFD No. 2005-1 Capistrano Unified School District 32972 Calle Perfecto San Juan Capistrano, California 92675 Attention: Deputy Superintendent, Business Services With copy to: Bowie, Arneson, Wiles & Giannone 4920 Campus Dr., Newport Beach, CA 92660 Attention: Alexander Bowie, Esq. City of San Juan Capistrano: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, California 92675 Attention: City Manager FINAL 5/31/11 10 asaisn.s Landowner: Rancho San Juan Development LLC 27285 Los Rambles, Suite 260 Mission Viejo, CA 92691 Attention: Todd Cunningham, Manager With a copy to: O'Neil LLP 19900 MacArthur Blvd., Suite 1050 Irvine, CA 92612 Attention: John Yeager, Esq. With a copy to: IHP Capital Partners 19800 MacArthur Blvd., Suite 700 Irvine, CA 92612 Attention: Jay W. Pruitt, Partner/Senior Vice President Prior Owner: Whispering Hills, LLC c/o IHP Capital Partners 19800 MacArthur Blvd., Suite 700 Irvine, CA 92612 Attention: Jay W. Pruitt, Partner/Senior Vice President Each Party may change its address for delivery of notice by delivering written notice of such change of address to the other parties hereto. 12. Exhibits. All exhibits attached hereto are incorporated into this F/A JCFA by reference. 13. Severability. If any non -material part of this FIA JCFA is held to be illegal or unenforceable by a court of competent jurisdiction, the remainder of this F/A JCFA shall be given effect to the fullest extent reasonably possible. 14. Governing Law. This F/A JCFA and any dispute arising hereunder shall be governed by and interpreted in accordance with the laws of the State of California. 15, Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this F/A JCFA by the other parties hereto, or the failure by a party to exercise its rights upon the default of another party, shall not constitute a waiver of such party's right to insist and demand strict compliance by such other parties with the terms of this Agreement thereafter. 16. No Third Party Beneficiaries, No person or entity shall be deemed to be a third party beneficiary hereof, and nothing in this F/A JCFA (either express or implied) is intended to confer upon any person or entity, other than the City, the School District, the District, Prior Owner and Landowner (and their respective successors and assigns), any rights, remedies, obligations or liabilities under or by reason of this F/A JCFA. FINAL S/31/11 11 159190.6 17. Singular, Plural and Gender. As used herein, the singular of any word includes the plural, and terms in the masculine gender shall include the feminine. 18. Counterparts. This F/A JCFA may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute but one instrument. IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date. Approved as to form: By: Name: Nossaman, LLP., Special Counsel CAPISTRANO UNIFIED SCHOOL DISTRICT By: Name: Title: Approved as to form: By: Alexander Bowie, Counsel to Capistrano Unified School District and Community Facilities District No. 2005-1 FINAL 5/31/11 CITY OF SAN JUAN CAPISTRANO M. Name: Mayor ATTEST: Name: . City Clerk COMMUNITY FACILITIES DISTRICT NO, 2001-1 of the Capistrano Unified School District By: Name: Title: 12 158190.6 RANCHO SAN JUAN DEVELOPMENT LLC, a Delaware limited liability company By: Woodbridge Builders, LLC, a Delaware limited liability company, Its: Managing Member By: Woodbridge Communities I1, LLC, a Delaware limited liability company, Its: Member I' Tadd Cunningham, Manager WMSPERI<NG HILLS, LLC, a Delaware limited liability company By: Name: Title: By: Name: Title: FINAL 5/31111 13 158190,6 EXHIBIT A DESCRIPTION OF PROPERTY The real property within Community Facilities District No. 2005-1 of the Capistrano Unified School District (Whispering Hills): Those certain parcels of land situated in the City of Sari Juan Capistrano, County of Orange, State of California described as follows: A-1 David Taussig & Associates, Inc. FY 2010-11 Assessor's Parcels within CFD No. 2005-1 of the Capistrano Unified School district (Whispering hills) 5126/2011 Assessor's Parcel Number Tract Lot Owner 111 Acreaee 124-140-50 RANCHO SAN JUAN DEVELOPMENT LLC 0.048 664-241-01 16634 155 RANCHO SAN JUAN DEVELOPMENT%LLC 0,746 664-241-02 16634 154 RANCHO SAN JUAN DEVELOPMENT LLC 0.722 664-241-03 16634 153 RANCHO SAN JUAN DEVELOPMENT LLC 0.660 664-241-04 16634 152 RANCHO SAN JUAN DEVELOPMENT LLC 0.704 664-241-05 16634 151 RANCHO SAN JUAN DEVELOPMENT LLC 0.697 664-241-06 16634 150 RANCHO SAN JUAN DEVELOPMENT LLC 0.965 664.241-07 16634 149 RANCHO SAN JUAN DEVELOPMENT LLC 1.134 664-241-08 16634 148 RANCHO SAN JUAN DEVELOPMENT LLC 0,697 664-241-09 16634 147 RANCHO SAN JUAN DEVELOPMENT LLC 0.708 664-241-10 16634 146 RANCHO SAN JUAN DEVELOPMENT LLC 0.795 664-241-11 16634 145 RANCHO SAN JUAN DEVELOPMENT LLC 0.818 664-241-12 16634 144 RANCHO SAN JUAN DEVELOPMENT LLC 1.032 664-241-13 16634 143 RANCHO SAN JUAN DEVELOPMENT LLC 0.918 664-241-14 16634 142 RANCHO SAN JUAN DEVELOPMENT LLC 0.815 664-241-15 16634 141 RANCHO SAN JUAN DEVELOPMENT LLC 0.410 664-241.16 16634 S RANCHO SAN JUAN DEVELOPMENT LLC 0.120 664-241-17 16634 R RANCHO SAN JUAN DEVELOPMENT LLC 2.190 664-241-18 16634 M RANCHO SAN JUAN DEVELOPMENT LLC 0.140 664-241-19 16634 N RANCHO SAN JUAN DEVELOPMENT LLC 0.150 664-241-20 16634 E RANCHO SAN JUAN DEVELOPMENT LLC 10.130 664-241-21 16634 G RANCHO SAN JUAN DEVELOPMENT LLC 34.020 664-241-22 16634 C RANCHO SAN JUAN DEVELOPMENT LLC 4.310 664-251-04 16634 L RANCHO SAN JUAN DEVELOPMENT LLC 0,002 664-251-05 16634 0 RANCHO SAN JUAN DEVELOPMENT LLC 8.690 664-251-06 16634 H RANCHO SAN JUAN DEVELOPMENT LLC 17.840 664-251-08 16634 T CITY OF SAN JUAN 0.990 664-251-10 (PORTION) 16634 PORTION OF LOT 13 RANCHO SAN JUAN DEVELOPMENT LLC 5.530 664-251-13 16634 D RANCHO SAN JUAN DEVELOPMENT LLC 1.740 664-251-15 16634 PORTION OF LOT F RANCHO SAN JUAN DEVELOPMENT LLC 124.570 664-252-01 16634 10 RANCHO SAN JUAN DEVELOPMENT LLC 0.231 664-252-02 16634 9 RANCHO SAN JUAN DEVELOPMENT LLC 0.230 664-252-03 16634 8 RANCHO SAN JUAN DEVELOPMENT LLC 0.243 664-252-04 16634 7 RANCHO SAN JUAN DEVELOPMENT LLC 0.255 664-252-05 16634 6 RANCHO SAN JUAN DEVELOPMENT LLC 0.241 664-252-06 16634 5 RANCHO SAN JUAN DEVELOPMENT LLC 0.246 664-252-07 16634 4 RANCHO SAN JUAN DEVELOPMENT LLC 0.254 664-252-08 16634 3 RANCHO SAN JUAN DEVELOPMENT LLC 0.276 664252-09 16634 2 RANCHO SAN JUAN DEVELOPMENT LLC 0.288 664-252-10 16634 1 RANCHO SAN JUAN DEVELOPMENT LLC 0.350 664-252-11 16634 24 RANCHO SAN JUAN DEVELOPMENT LLC 0.308 664-252-12 16634 25 RANCHO SAN JUAN DEVELOPMENT LLC 0.288 664-252-13 16634 23 RANCHO SAN JUAN DEVELOPMENT LLC 0.451 664-252-14 16634 22 RANCHO SAN JUAN DEVELOPMENT LLC 0.250 664-252-15 16634 21 RANCHO SAN JUAN DEVELOPMENT LLC 0.230 664-252-16 16634 20 RANCHO SAN JUAN DEVELOPMENT LLC 0.237 K;ICLIENTS21CAPO.USDtMEI,L01whisphil]Watabase110-I 11APN Exhibit Page 1 of David Taussig & Associates, Inc. FY 2010-11 Assessor's Parcels within CFD No. 2005-1 of the Capistrano Unified School District (Whispering Hills) 5/26011 Assessor's Parcel Number Tract Lot Owner I 1 I AeA reaee 664-252-17 16634 19 RANCHO SAN JUAN DEVELOPMENT LLC 0.248 664-252-18 16634 l8 RANCHO SAN JUAN DEVELOPMENT LLC 0.252 664-252-19 16634 44 RANCHO SAN JUAN DEVELOPMENT LLC 0.245 664-252-20 16634 45 RANCHO SAN JUAN DEVELOPMENT LLC 0.245 664-252-21 16634 46 RANCHO SAN JUAN DEVELOPMENT LLC 0.245 664-252-22 16634 47 RANCHO SAN JUAN DEVELOPMENT LLC 0.581 664-252-23 16634 26 RANCHO SAN JUAN DEVELOPMENT LLC 0,236 664.252-24 16634 27 RANCHO SAN JUAN DEVELOPMENT LLC 0.232 664.252-25 16634 28 RANCHO SAN JUAN DEVELOPMENT LLC 0.244 664-252-26 16634 29 RANCHO SAN JUAN DEVELOPMENT LLC 0.232 664-252-27 16634 48 RANCHO SAN JUAN DEVELOPMENT LLC 0.443 664-252-28 16634 49 RANCHO SAN JUAN DEVELOPMENT LLC 0.303 664-252-29 16634 50 RANCHO SAN JUAN DEVELOPMENT LLC 0.354 664-252-30 16634 51 RANCHO SAN JUAN DEVELOPMENT LLC 0.282 664-252-31 16634 52 RANCHO SAN JUAN DEVELOPMENT LLC 0.317 664-252-32 16634 53 RANCHO SAN JUAN DEVELOPMENT LLC 0.352 664-252-33 16634 54 RANCHO SAN JUAN DEVELOPMENT LLC 0.384 664-252-34 16634 55 RANCHO SAN JUAN DEVELOPMENT LLC 0.421 664-252-35 16634 56 RANCHO SAN JUAN DEVELOPMENT LLC 0.428 664.252-36 16634 30 RANCHO SAN JUAN DEVELOPMENT LLC 0.239 664-252-37 16634 31 RANCHO SAN JUAN DEVELOPMENT LLC 0.236 664-252-38 16634 32 RANCHO SAN JUAN DEVELOPMENT LLC 0.568 664-252-39 16634 33 RANCHO SAN JUAN DEVELOPMENT LLC 0.322 664-252.40 16634 34 RANCHO SAN JUAN DEVELOPMENT LLC 0.266 664-25241 16634 35 RANCHO SAN JUAN DEVELOPMENT LLC 0.264 664-25242 ( 6634 U RANCHO SAN JUAN DEVELOPMENT LLC 0.100 664-253-01 16634 17 RANCHO SAN JUAN DEVELOPMENT LLC 0.320 664-253-02 16634 81 RANCHO SAN JUAN DEVELOPMENT LLC 0.281 664-253-03 16634 80 RANCHO SAN JUAN DEVELOPMENT LLC 0.282 664-253-04 16634 79 RANCHO SAN JUAN DEVELOPMENT LLC 0.329 664-253-05 16634 78 RANCHO SAN JUAN DEVELOPMENT LLC 0.410 664-253-06 16634 77 RANCHO SAN JUAN DEVELOPMENT LLC 0.264 664-253-07 16634 76 RANCHO SAN JUAN DEVELOPMENT LLC 0.230 664-253-08 16634 75 RANCHO SAN JUAN DEVELOPMENT LLC 0.230 664-253-09 16634 74 RANCHO SAN JUAN DEVELOPMENT LLC 0.574 664-253-10 16634 16 RANCHO SAN JUAN DEVELOPMENT LLC 13.325 664-253-11 16634 15 RANCHO SAN JUAN DEVELOPMENT LLC 0.473 664-253-12 16634 14 RANCHO SAN JUAN DEVELOPMENT LLC 0.748 664-253-13 16634 11 RANCHO SAN JUAN DEVELOPMENT LLC 0.232 664-253-14 16634 12 RANCHO SAN JUAN DEVELOPMENT LLC 0.230 664-253-15 16634 13 RANCHO SAN JUAN DEVELOPMENT LLC 0.361 664-253-16 16634 140 RANCHO SAN JUAN DEVELOPMENT LLC 0.308 664-253-17 16634 139 RANCHO SAN JUAN DEVELOPMENT LLC 0.305 664-253-18 16634 138 RANCHO SAN JUAN DEVELOPMENT LLC 0.319 664-253-19 16634 137 RANCHO SAN JUAN DEVELOPMENT LLC 0.366 664-253-20 16634 136 RANCHO SAN JUAN DEVELOPMENT LLC 0.361 664-253-21 16634 135 RANCHO SAN JUAN DEVELOPMENT LLC 0.304 K:1CLIENTS2ICAPO.USDIMELLO3whisphilMatabase110-111APN Exhibit Page 2 of David Taussig & Associates, Inc. FY 2010-11 Assessor's Parcels within Clap No. 2005-1 of the Capistrano Unified School District (Whispering Hills) 511612011 Asscsser's Parcel Number Tract Lot Owner -III Acreage 664-253-22 16634 134 RANCHO SAN JUAN DEVELOPMENT LLC 0.300 664-253-23 16634 133 RANCHO SAN JUAN DEVELOPMENT LLC 0.349 664-253-24 16634 73 RANCHO SAN JUAN DEVELOPMENT LLC 1.016 664-253-25 16634 72 RANCHO SAN JUAN DEVELOPMENT LLC 0.360 664-253-26 16634 71 RANCHO SAN JUAN DEVELOPMENT LLC 0.298 664-253-27 16634 70 RANCHO SAN JUAN DEVELOPMENT LLC 0.350 664-253-28 16634 69 RANCHO SAN JUAN DEVELOPMENT LLC 0.367 664-253-29 16634 68 RANCHO SAN JUAN DEVELOPMENT LLC 0.589 664-253-30 16634 67 RANCHO SAN JUAN DEVELOPMENT LLC 0.279 664-253-31 16634 66 RANCHO SAN JUAN DEVELOPMENT LLC 0.254 664-253-32 16634 65 RANCHO SAN JUAN DEVELOPMENT LLC 0,230 664-253-33 16634 64 RANCHO SAN JUAN DEVELOPMENT LLC 0.230 664-253-34 16634 63 RANCHO SAN JUAN DEVELOPMENT LLC 0.230 664-253-35 16634 62 RANCHO SAN JUAN DEVELOPMENT LLC 1.030 664-253-36 16634 1 RANCHO SAN JUAN DEVELOPMENT LLC 0.130 664-254-01 16634 57 RANCHO SAN JUAN DEVELOPMENT LLC 0.695 664-254.02 16634 39 RANCHO SAN JUAN DEVELOPMENT LLC 4.370 664-254-03 16634 38 RANCHO SAN JUAN DEVELOPMENT LLC 0.264 664-254-04 16634 37 RANCHO SAN JUAN DEVELOPMENT LLC 0.273 664-254-05 16634 36 RANCHO SAN JUAN DEVELOPMENT LLC 0.264 664-254-06 16634 43 RANCHO SAN JUAN DEVELOPMENT LLC 0.342 664-254-07 16634 42 RANCHO SAN JUAN DEVELOPMENT LLC 0.310 664-254-08 16634 41 RANCHO SAN JUAN DEVELOPMENT LLC 0.368 664-254-09 16634 40 RANC140 SAN JUAN DEVELOPMENT LLC 0.513 664-254-10 16634 101 RANCHO SAN JUAN DEVELOPMENT LLC 0.586 664-254-11 16634 102 RANCHO SAN JUAN DEVELOPMENT LLC 0.461 664254-12 16634 103 RANCHO SAN JUAN DEVELOPMENT LLC 0,415 664-254-13 16634 104 RANCHO SAN JUAN DEVELOPMENT LLC 0.393 664-254-14 16634 105 RANCHO SAN JUAN DEVELOPMENT LLC 0.365 664-254-15 16634 106 RANCHO SAN JUAN DEVELOPMENT LLC 0.336 664-254-16 16634 107 RANCHO SAN JUAN DEVELOPMENT LLC 0.330 664-254-17 16634 108 RANCHO SAN JUAN DEVELOPMENT LLC 0,264 664-254-18 16634 109 RANCHO SAN JUAN DEVELOPMENT LLC 0.264 664.254-19 16634 110 RANCHO SAN JUAN DEVELOPMENT LLC 0.264 664-254-20 16634 111 RANCHO SAN JUAN DEVELOPMENT LLC 0,264 664-254-21 16634 112 RANCHO SAN JUAN DEVELOPMENT LLC 0.264 664-254-22 16634 113 RANCHO SAN JUAN DEVELOPMENT LLC 0.349 664-254-23 16634 114 RANCHO SAN JUAN DEVELOPMENT LLC 0.280 664-255-01 16634 82. RANCHO SAN JUAN DEVELOPMENT LLC 0.293 664-255-02 16634 83 RANCHO SAN JUAN DEVELOPMENT LLC 0.308 664-255-03 16634 84 RANCHO SAN JUAN DEVELOPMENT LLC 0.272 664-255-04 16634 85 RANCHO SAN JUAN DEVELOPMENT LLC 0.264 664-255-05 16634 86 RANCHO SAN JUAN DEVELOPMENT LLC 0.266 664-255-06 16634 87 RANCHO SAN JUAN DEVELOPMENT LLC 0.286 664-255-07 16634 88 RANCHO SAN JUAN DEVELOPMENT LLC 0.326 664-255-08 16634 89 RANCHO SAN JUAN DEVELOPMENT LLC 0.267 664-255-09 16634 58 RANCHO SAN JUAN DEVELOPMENT LLC 1.809 K:WLIENTS2ICAPO.USDWELLOtwhisphilhDatabase110-I IXAPN Exhibit Page 3 of David Taussig & Associates, Inc. FY 2010-11 Assessor's Parcels within CFD No. 2005-1 of the Capistrano Unified School District (Whispering Hills) 5/26/2011 Assessor's Parcel Number Tract Lot Owner III Ac- -, r_ ewe 664-255-10 16634 59 RANCHO SAN JUAN DEVELOPMENT LLC 0.414 664-255-11 16634 60 RANCHO SAN JUAN DEVELOPMENT LLC 0.396 664-255-12 16634 61 RANCHO SAN JUAN DEVELOPMENT LLC 0.851 664-255-13 16634 90 RANCHO SAN JUAN DEVELOPMENT LLC 0.582 664-255-14 16634 91 RANCHO SAN JUAN DEVELOPMENT LLC 0.676 664-255-15 16634 92 RANCHO SAN JUAN DEVELOPMENT LLC 0.412 664-255-16 16634 93 RANCHO SAN JUAN DEVELOPMENT LLC 0.430 664-255-17 ' 16634 94 RANCHO SAN JUAN DEVELOPMENT LLC 0.426 664-255-18 16634 95 RANCHO SAN JUAN DEVELOPMENT LLC 0.413 664-255-19 16634 96 RANCHO SAN JUAN DEVELOPMENT LLC 0.394 664-255-20 16634 97 RANCHO SAN JUAN DEVELOPMENT LLC 0,382 664-255-21 16634 98 RANCHO SAN JUAN DEVELOPMENT LLC 0.370 664-255-22 16634 99 RANCHO SAN JUAN DEVELOPMENT LLC 0.361 664-255-23 16634 100 RANCHO SAN JUAN DEVELOPMENT LLC 0,382 664-255-24 16634 Hs RANCHO SAN JUAN DEVELOPMENT LLC 0.288 664-255-25 16634 116 RANCHO SAN JUAN DEVELOPMENT LLC 0.264 664-255-26 16634 117 RANCHO SAN JUAN DEVELOPMENT LLC 0.264 664-255-27 16634 118 RANCHO SAN JUAN DEVELOPMENT LLC 0.264 664-255-28 16634 119 RANCHO SAN JUAN DEVELOPMENT LLC 0.264 664-255-29 16634 120 RANCHO SAN JUAN DEVELOPMENT LLC 0.275 664-255-30 16634 121 RANCHO SAN JUAN DEVELOPMENT LLC 0.267 664.255-31 16634 122 RANCHO SAN JUAN DEVELOPMENT LLC 0.264 664-255-32 16634 123 RANCHO SAN JUAN DEVELOPMENT LLC 0.264 664-255-33 16634 124 RANCHO SAN JUAN DEVELOPMENT LLC 0.264 664-255-34 16634 125 RANCHO SAN JUAN DEVELOPMENT LLC 0.283 664-255-35 16634 126 RANCHO SAN JUAN DEVELOPMENT LLC 0,286 664.255-36 16634 127 RANCHO SAN JUAN DEVELOPMENT LLC 0.277 664-255-37 16634 128 RANCHO SAN JUAN DEVELOPMENT LLC 0.445 664-255-38 16634 129 RANCHO SAN JUAN DEVELOPMENT LLC 0,310 664.255-39 16634 130 RANCHO SAN JUAN DEVELOPMENT LLC 0.315 664-25540 16634 131 RANCHO SAN JUAN DEVELOPMENT LLC 0.314 664.255-41 16634 132 RANCHO SAN JUAN DEVELOPMENT LLC 0.305 664-255-42 16634 J RANCHO SAN JUAN DEVELOPMENT LLC 1.190 No. of Parcels: 173 273,689 11 ] Ownership based on 1/112010 Assessor's Roll provided by the County, K:iCLIENTS21CAPO.US171MELLOtwhisphilliDatabasc110-t IIAPN Exhibit Page 4 of EXHIBIT B ALTERNATIVE BOND SALE AMOUNTS AND PROCEEDS PREPARED BY DAVID TAUSSIG & ASSOCIATES unne6nei rS all m �a ' n SB gill O QE�i� dYyy HO yQ{� n o HUMP go O s V— .4 a C R w v q p unne6nei rS M. 6$ ill all RssasN tat M. 6$ ill all tat gill O QE�i� dYyy HO yQ{� n o S g S CHs W n I I pili Ra RRISR ry N 219Rallis RR RR as a as 22 as �� SR aR as e P o lar 5; v F4 6m C �R si v ry ry 1'1 0i q f+ 4 AYI YN lfl'(G OI I n � � o va{ a oaao �.nN �1 P a a v a Q H jupIR ¢ ayY�NK» p QQ o ry ^ n mM N »LjNN�Yf M w NNNMMMY� » a s(.(yy.atrymry� N �y�yyy{{ pqqppp aN^4F rlmmFDm�w M N N N a a RRAUH $ a a RR146M R �:iAh A a S 222222231 $ MN�q��MVIRR� � as RRp a &aaaa it RSi s� �aaag as as p Uff"RW R as sit Rl��aR�� aR , $ Ra aua5i�,tma n aa� 221 a5il spall RRI � R RS » w SII all39RU4RaRI $ S RR F3�1� wMRS � L � � NHS +Oh f0 K rNM/ tN tl1�9ppDyy �yV]�II MN�q��MVIRR� � as RRp a &aaaa it RSi s� �aaag as as p Uff"RW R as sit Rl��aR�� aR , $ Ra aua5i�,tma n aa� 221 a5il spall RRI � R RS » w SII all39RU4RaRI $ S RR F3�1� ti LZ» u M1 W» � � S M •- •- •- � C �j N»MMNMN31 pVry7 to �Nryrv�yI � � �NM�'IN»yH M nGr r rr MM $ .,44g41,11, # �Ainn+iJ w«N�M��M W Ij� N HCi,. �e.��.ccig �c.Veecas dap] p ��py fm� pmt �Rp �wp1 N Nm�Q�pO N N M N n H II O z�z ppr M �'Y ' ;ARA NRRYR;ARA pp �f $ q qq 4t Nrfy « p p p q t�p n .l„;, N p NK��, ®O® YI •n- y�� R � � � M N N w:; N B-4 ry n w V9 q N NMN �l N MM y. p p N N p �y �yp� app +p pp �/ qq NMWI9m§p1 V wO��fpp1 «NM��ViN A $1 yp� ym� py �pp� ,Q( Ry@�.fmAgp OYmNl�p 1Fj[ 1q �rf F� Q IV N ffH.. • P y�6Y [ � �1N ��11N N�n1 I[ `� O r N a a R R RRRSi�t�r�6pm� YINNM M M R R RRRRRRRSi $ RSiRRRRRR$ ti $ .,44g41,11, # �e.��.ccig �c.Veecas mill i� B-4 11 .. as as as pq a SMUMj4 �'EESE A ~ ��in A rr rid astaaaa r as � 9 1k U w� �N w ry{� ♦ nmA m y LLL � urjj nNM rb 10n m NNN� mill It as as as p !g::avtAaa x it a asmi wa% as §g9gassi IN as 141 sa aslas 6 q 1,�RV%R8v a a Rst�UMI as 5aasan as as as as a ":Shap "2a a m N asm ISaaaa 8I as N N iii N as SaIR2 P4 o :w��CR�p� i a 8 as 2ssav; � �, as N N M as as as n o r�S�ivk�3p a a 5tnpmm as a& rn�o� $F�BaaaF �yp as aara b w�av:as=� s ssa�l sallsaaa� sad $ as as as a aa a rye as a �nsaaak IN gal a �1 Np !1 [V p Q as Na 3511251 o Ma 0 r ar �`1 tY �'t �I I%WN•NM~IF„1$ 4] a M ¢S pq 8 A7 AIM 10 l�t0 g y p p NN ry� p W O O w� �Z; 5§gSSSS !p R II p GN O Ma NW M) mO F FSR as galas e o T 8vf,gg,--1 i a S as �q�l a&a&� $ as ~ I �t!Aoj]p§pA NM NViNNN �' of s a N Pi 111 Ti I N M M T i7t x 0 � Yr rl rf rl �'EESE A ~ ��in A rr rid r � U w� w ry{� ♦ nmA m y LLL � urjj nNM rb 10n m NNN� mill V O .-n r+v �mm�m .•nHvnwtim �� T. 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B-19 1*94 11111.1 t.li<�7 DESCRIPTION OF CITY FACILITIES The following improvements are eligible City Facilities: CITY FEE FACILITIES PAID TO DATE TO BE PAID TOTAL Traffic Mitigation Fee (CCFP) 7,387 1,137,598 1,144,985 Park Fee 1,798,000 — 1,798,000 San Juan AG Preserve Fee 500 77,000 77,500 San Juan Water Capacity Fee 578,232 — 578,232 San Juan Water Meter 31,000 — 31,000 San Juan Water Capital Improvement Charge 311,240 — 311,240 San Juan Water Storage Fee 217,000 -- 217,000 San Juan Drainage Fee 862.41 132,811 133,674 San Juan Fee Ordinance 211 115 17,710 17,825 San Juan Ordinance 364 3,522 646,478 650,000 San Juan Sanitation District (Sewer) Fee 4301.46 662,425 666,726 SUBTOTAL 2,952,160 2,674,022 5,626,182 CITY ACQUISITION FACILITIES (Detailed description attached) COMPLETED TO BE PRIOR TO COMPLETD 111109 2009-2015 TOTAL Vista Montana Improvements 2,328,431 — 2,328,431 Sewer 263,120 2,000,000 2,263,120 Water 743,475 1,200,000 1,943,75 Reclaimed Water 272,276 400,000 672,276 Storm Drain 2,031,054 — 2,031,054 SUBTOTAL 5,638,356 3,600,000 9,238,356 ADDITIONAL CITY FACILITIES' 1,783,745 GRAND TOTAL 8,590,516 8,057,767 16,648,282 1' City to receive amount equal to 12% of all disbursements for City Facilities to be used for Additional Facilities. C- 1. EXHIBIT D DISBURSEMENT REQUEST FORM CITY OF SAN JUAN CAPISTRANO/CFD NO. 2005-1 WHISPERING HILLS PLANNED COMMUNITY Community Facilities District No. 2005-1 of the Capistrano Unified School District (Whispering Hills) `("CFD No. 2005-1") is hereby requested to pay from the City Facilities Account established by the Indenture described in the FIA Agreement among the Parties ("Indenture") of CFD No. 2005-1 in connection with its CFD No. 2005-1 First Series and Second Series Special Tax Bonds ("Bonds"), to the City of San Juan Capistrano ("City"), as Payee, the sun set forth below in payment of City Facilities described below. The undersigned certifies that the amount requested has been expended or encumbered for the purposes of constructing and completing City Facilities. The amount requested is due and payable under, or is encumbered for the purpose of funding, a purchase order, contract or other authorization with respect to the project costs described below and has not formed the basis of prior request or payment. The City agrees to trace and remit to CFD No. 2005-1 all earnings, if any, in excess of the yield on the Bonds accruing from the investment of the amounts requested herein, from the date of receipt by the City of such amounts to the date of expenditure of such amounts by payment thereof to a third party for the costs set forth below. Such remittance, if any, shall be made each year on the earlier of the expenditure of such amounts or the anniversary date of the transfer of the requested amounts by CFD No. 2005-1 to the City. Description of corresponding City Facilities: Amount requested: $ The amount of $ is authorized and payable pursuant to the terms of the First Amended and Restated Joint Community Facilities Agreement among Capistrano Unified School District, Community Facilities District No. 2005-1 of Capistrano Unified School District (Whispering Hills), the City of San Juan Capistrano, Rancho San Juan Development LLC and Whispering Hills LLC, dated as of 1, 2011. Executed by an authorized representative of the City of San Juan Capistrano. By: Name: Title: Dated: Request No.: Attest: D-1 EXHIBIT D-1 FORM OF ACQUISITION FACILITY(IES) PAYMENT REQUEST The undersigned, hereby requests payment in the total amount of $ as the Acquisition Price of the Acquisition Facility(ies) (as defined in the First Amended and Restated Joint Community Facilities Agreement by and among Capistrano Unified School District Community Facilities District No. 2005-1 (Whispering Hills), City of San Juan Capistrano ("City"), Rancho San Juan Development LLC, and Whispering Hills, LLC dated as of 1, 2011 ("F/A JCFA") more fully described in Attachment l hereto. In connection with this Payment Request, the undersigned hereby represents and warrants to the City as follows: 1. He(she) is a duly authorized officer of the undersigned, qualified to execute this Payment Request for payment on behalf of the undersigned and is knowledgeable as to the matters set forth herein. 2. All costs of the Acquisition Facility(ies) for which payment is requested hereby are actual costs and have not been inflated at any respect. The actual costs for which payment is requested have not been the subject of any prior disbursement request submitted to Community Facilities District No. 2000-1 of the Capistrano Unified School District (the "CFD"). 3. Supporting documentation (such as third party invoices, lien releases and cancelled checks or other evidence of payment) is attached with respect to each cost for which payment is requested. 4. The Acquisition Facility(ies) for which payment is requested was constructed in accordance with the requirements of the FIA JCFA. 5. The undersigned is in compliance with the term and provisions of the FIA JCFA and no portion of the amount being requested to be paid was previously paid. d. The Acquisition Price for the Acquisition Facility(ies) has been calculated in. conformance with the terms of the F/A JCFA. 7. Please authorize payment of the Acquisition Price by CFD No. 2005-1 to the following entity(ies), if other than the undersigned, in the amounts or percentages indicated: [Insert names of payees and amounts or percentages] D-1-1 correct. Dated: Dated: I declare under penalty of perjury that the above representations and warranties are true and D-1-2 RANCHO SAN JUAN DEVELOPMENT LLC By: Its: 141679!]" +'�`10�,rs"a gf- ,73091 Payment Request Approved for Submission to CFD By: Its: ATTACHMENT 1 SUMMARY OF ACQUISITION FACILITY(IES) TO BE ACQUIRED AS PART OF PAYMENT REQUEST Acquisition Facility(ies) Actual Casts Disbursement Requested [List here all Acquisition Faciiity(ies) which payment is requested, and attach support documentation] AGREEMENT REGARDING ACCESS EASEMENT THIS AGREEMENT REGARDING ACCESS EASEMENT (this "Agreement") is entered into as of _ , 2011., by and between RANCHO SAN JUAN DEVELOPMENT LLC, a Delaware limited liability company ("RSJ") and the CITY OF SAN JUAN CAPISTRANO, a general law city (the "City"). RSJ and the City are each sometimes referred to herein individually as a "Party," and, collectively, as the "Parties." The Parties are entering into this Agreement with reference to the following facts: RECITALS A. RSJ is the owner of that certain real property located in the City of San Juan Capistrano, County of Orange, State of California, legally described on Exhibit "A" attached hereto and made a part hereof (the "RSJ Property"). B. The City is the owner of that certain real property located in the City of San Juan Capistrano, County of Orange, State of California, legally described on Exhibit "B" attached. hereto and made a part hereof (the "City Property") which is located adjacent to the RSJ Property. C. In connection with the City's contemplated use of the City Property, the City desires to obtain from RSJ a nonexclusive easement and right of way over the RSJ Property consisting of two access roads providing ingress and egress to the City Property, all pursuant to an Access Easement (the "Access Easement"), in the form attached hereto as Exhibit "C" and made a part hereof. D. The Parties desire to enter into this Agreement simultaneous with that certain First Amended and Restated Joint Community Facilities Agreement among Capistrano Unified School District (the "School District"), Community Facilities District No. 2005-1 of Capistrano Unified School District (Whispering Hills) (the "CFD"), the City, RSJ, and Whispering Hills, LLC (the "A&R JCFA"), which provides a means of financing through the CFD certain development fee reimbursements and public improvements needed to serve certain real property, including the RSJ Property. E. The Parties intend to enter into this Agreement to provide for the granting of the Access Easement and the construction by RSJ of the access road within the area crosshatched on Exhibit "C" attached to the Access Easement (the "Easement Area") pursuant to specifications described in Exhibit "D" attached hereto and made a part hereof (the "Access Road Specifications") upon the City's receipt of all necessary regulatory approvals and permits for such construction.. AGREEMENT NOW, THEREFORE, in consideration of the above Recitals and the conditions, covenants and other provisions set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by each of the Parties, the Parties hereto hereby agree as follows: 5/26/11 9130.2 #96779 0 EXHIBIT B I . Access Easement. Upon completion of the Access Road described in Section 2 below, RSJ and the City hereby agree to immediately execute and deliver the Access Easement and cause it to be recorded in the Official Records of the County of Orange. RSJ and the City acknowledge that the Access Easement provides for, among other things, (i) the grant of a nonexclusive easement and right of way over two access roads located in approximately the Easement Area hatched and crosshatched on Exhibit "C" to the Access Agreement, each not less than twenty-two (22) feet in width, each providing ingress and egress to the City Property, and each access being across, through and over the RSJ Property, (ii) that the easement shall be used for vehicular (including, without limitation, delivery trucks and such other trucks as are required for the construction and maintenance of the roadway and all other vehicles involved in permitted uses described in the Access Easement) and pedestrian access, ingress to and egress from the City Property over and across the Easement Area, as well as for purposes of repairing, replacing and maintaining the roadways and other associated improvements, (iii) that the easement shall be limited to purposes reasonably relating to the open space uses of the City Property and as otherwise permitted by or described in this Agreement and the Access Easement (including, without limitation, as set forth in provision (iii) above), fIS THIS CORRECT (E.G. IS THIS BROAD ENOUGH? ANY MODIFICATIONS SHOULD ALSO BE REFLECTED IN THE ACCESS EASEMENT) (iv) that RSJ's predecessor in interest previously granted to the Capistrano Unified School District (the "School District") a nonexclusive easement within the portion of the Easement Area from. La Pata Avenue to the San Juan Hills High School. Property for purposes of ingress and egress, and (v) that use of the Easement Area by the City shall not unreasonably interfere with or impede the use of the portion of the Easement Area by the School District. 2. Construction of Access Road. Provided the City obtains the necessary governmental permits and authorizations contemplated herein, RSJ agrees to grade and construct, at its sole cost and expense, the access road within the crosshatched portion of the Easement Area depicted on Exhibit "C" pursuant to and in accordance with the Access Road Specifications. RSJ shall use good faith efforts to commence the grading and construction of the access road within thirty (30) days of City's written request, which request shall include reasonably satisfactory evidence that the City has obtained the necessary governmental permits and authorizations. Upon commencement, RSJ shall thereafter prosecute such grading and construction to completion and shall use good faith efforts to substantially complete the same within sixty (60) days of commencement. 3. Government Regulations. The City agrees, in connection with RSJ's grading and construction activities contemplated herein, to obtain, at its sole cost and expense, all governmental permits and authorizations of whatever nature required by any and all applicable governmental or quasi -governmental agencies or authorities in order to conduct and complete such activities. 4. Maintenance and Condition of Easement Area. Upon completion of the Access Road, the City will be responsible for any damage done to the Easement Area during the term of the Access Easement by the City and/or its contractors, subcontractors, employees, lessees, licensees, invitees, permittees, successors and assigns, or any other persons directly or indirectly employed by any one of the foregoing or reasonably under the 512611.1 9130.2 996779 v7 2 control of any of the foregoing or for whose acts any of the foregoing may be liable. In addition, the City shall be obligated to maintain the Easement Area and all improvements, installations and facilities installed thereon (including any landscaping) in good and safe order, condition and repair, including, without Iimitation, maintenance as may be required by any applicable governmental or quasi -governmental agency or authority. Following completion of the Access Road, RSJ shall not be required to make any alterations or repairs to the Easement Area or otherwise maintain the Easement Area except as a result of R.SJ's negligence or willful misconduct. 5. Further Assurances. Each Party shall execute and deliver such further instruments and shall take such other action as the other Party may reasonably request from time to time in order to carry out the intent of this Agreement. 6. Entire Agreement; Amendments. This Agreement and the Access Easement contain the entire agreement of the parties hereto relating to the subject matter hereof. Any amendment or supplement to, or waiver of, any provision of this Agreement must be in writing and signed by the Party whose obligations are purported to be affected thereby. 7. Binding, Effect. This Agreement shall be binding on and shall inure to the benefit of the successors, and assigns of RSJ and the City. 8. Attorne, s' Dees. 1f any legal action or proceeding arising out of or relating to this Agreement is brought by either Party, the prevailing Party shall be entitled to receive from the other Party, in addition to any other relief that may be granted, the reasonable attorneys' fees, costs, and expenses incurred in the action or proceeding by the prevailing party. 9. Notices. All notices, demands, requests, solicitations of consent or approval, and other communications hereunder required or permitted shall be in writing and shall be deemed to have been given (i) when personally delivered or telecopied, (ii) one (1) business day after the date when deposited with an overnight courier or (iii) three (3) business days after the date when. deposited in the United States mail and sent postage prepaid by registered or certified mail, return receipt requested, addressed as follows: If to RSJ: Rancho San Juan Development LLC c/o Woodbridge Homes 27285 Los Rambles, Suite 260 Mission Viejo, CA 92691 Attention: Todd Cunningham, Manager Telephone No.: 949/493-11.71 Facsimile No.. 949/661-5451 E-mail: : 1seC7t :.Gr1a 5126/11 9130.2 #96774 0 3 with a copy to: IHP Capital Partners 19800 .MacArthur Blvd., Suite 700 Irvine, CA 92612 Attention: Jay W. Pruitt, Partner/Senior Vice President Telephone: 949/655-7605 Email: If to City: City of San Juan Capistrano 32400 Pasco Adelanto San Juan Capistrano, California 92675 Attention: City Manager/City Cleric with a copy to: Attention: Telephone No.: Facsimile No.- E-mail: o.:E-mail: One Party may change its address for notice purposes under this Agreement by giving the other party written. notice of such change in the manner prescribed above. 10. Counterparts. This Agreement may be signed in multiple counterparts which, when signed by all Parties, shall constitute a binding agreement. [Signature Page Follows] 5/26/11 9130.2 #96779 v7 4 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.. 6f'GWT "'W" CITY OF SAN JUAN CAPISTRANO RANCHO SAN JUAN DEVELOPMENT LLC, a Delaware limited liability company By. By: Woodbridge Builders, LLC, Name: City Manager a Delaware limited liability company, Its: Managing Member By: Woodbridge Communities I1, LLC, a Delaware limited liability company, Its: Member By: APPROVED AS TO FORM; By: City Attorney 5/26111 9130.2 996779 v7 5 Todd Cunningham, Manager I II►:4II I:. RSJ PROPERTY jINSERT LEGAL DESCRIPTION] 5/26/11 91 302 06779 0 A- I EXHIBIT P CITY PROPERTY [INSERT LEGAL DESCRIPTION] 5/26/11 9130.2 496779 v7 B-1 EXHIBIT C ACCESS EASEMENT See Attached. 5126/11 9130.2 096779 v7 C-1 RECORDING REQUESTED BY AND WHEN RECO.RI)ED MAIL TO: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, California 92675 Attention: City Clerk/City Manager ACCESS EASEMENT Space Above This bine For Recorder's Use Only TMS ACCESS EASEMENT (this "Agreement") is entered into as of _ - --1 2011, by and between RANCHO SAN JUAN DEVELOPMENT LLC, a Delaware limited liability company ("Grantor") and the CITY OF SAN JUAN CAPISTRA.NO, a general law city ("Grantee"). RECITALS A. Grantor is the owner of that certain real property located in the City of San . Juan Capistrano, County of Orange, State of California, legally described on Exhibit "A" attached hereto and made a part hereof (the "Grantor Parcel"). B. Grantee is the owner of that certain real property located in the City of San Juan Capistrano, County of Orange, State of California, legally described on Exhibit "I3" attached hereto and made a part hereof (the "Grantee Parcel"). C. Grantee desires a nonexclusive access easement and rights of way for vehicles and pedestrians across, through and over the Grantor Parcel by way of two access roads for ingress and egress to and from the Grantee Parcel, together with rights for the purposes associated with the on-going maintenance of the rights of way. Grantor has agreed to grant Grantee such easement and rights of way on the terms and conditions contained in this Agreement. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of the parties, the parties hereto hereby agree as follows: Grant and Description of Easement. 1.1 Grant. Grantor hereby establishes and grants to Grantee, for the benefit of Grantee and its contractors, subcontractors, employees, lessees, licensees, invitees (including the public), permittees, successors and assigns (collectively "Grantee Parties"), a nonexclusive easement and right of way over two access roads consisting of two access roads each not less than twenty-two (22) feet in width and each providing ingress and egress to the Grantee Parcel. Each access road shall be across, through and over the Grantor Parcel and shall be located within the area described in Exhibit "C" attached hereto and depicted as the areas hatched and crosshatched on Exhibit "D" attached hereto and made a part .hereof (the "Easement Area"). The portion of this easement and right of way attributable thereto shall be located upon and. within the area comprising the actual access roads. The portion of the Easement Area running north -south shall be fenced on its eastern boundary as necessary to prevent access from the Easement Area to the Grantee Parcel. Grantee agrees to comply with all governmental laws, statutes and regulations in connection with the maintenance of the roadway to be constructed by Grantor in the Easement Area. 5/25/11 9130.2 996659 A 1.2 Uses. The easement and rights of way granted in this Agreement are nonexclusive easement and rights of way for vehicular (including, without limitation, delivery trucks and such other trucks as are required for the construction and maintenance of the roadway and all other vehicles involved in permitted uses described below) and pedestrian access, ingress to and egress from the Grantee Parcel over and across the Easement Area, as well as for purposes of repairing, replacing and maintaining the roadways and any other.associated improvements. 'rhe use of such roadways by Grantee shall be limited to purposes reasonably relating to the open space uses of the Grantee Parcel and as otherwise permitted by or described in this Agreement. Grantee acknowledges Grantor's predecessor in interest previously granted to the Capistrano iJnified School District (the "School District") a nonexclusive easement within the portion of the Easement Area from La Pata Avenue to the San Juan Hills High School property for purposes of ingress and egress as further described in that certain Access Easement recorded April 30, 2003, as Instrument No. 2003000487414 of Official Records of the County of Orange (the "School District Easement"). The use of such roadways by Grantee or any Grantee Party shall not interfere with or impede the use of the portion of the Easement Area by the School District as described in the School District Easement. 1.3 Duration and Termination. This Agreement and the easement granted by this Agreement shall remain in effect in perpetuity, unless sooner terminated by mutual agreement of the then current owners of the Grantee Parcel and the Grantor Parcel or, in the event an access road is offered for dedication to a public agency, termination shall occur solely as to such road upon dedication thereof to the City of San Juan Capistrano, the County of Orange or other public agency. Such termination (unless and to the extent by dedication) shall be evidenced by a written termination agreement signed by the then current owners of both the Grantee Parcel and the Grantor Parcel, and shall be effective on the date of recording of such termination agreement in the Official Records of Orange County, California. Termination shall be automatic as to any applicable access road., without further action of Grantor or Grantee, if and to the extent of dedication of such access road, provided Grantor and Grantee shall record a written termination. upon the request of either party. 1.4 Easement Appurtenant. The easement granted by this Agreement shall be appurtenant to the Grantee Parcel. The easement granted pursuant to this Agreement shall be nonexclusive and for the use and benefit of each Grantee Party in common with Grantor and its licensees, permittees, successors and assigns. This Agreement is not intended to grant a fee interest in the Grantor Parcel, nor is it intended to be a lease or a license. 2. Insurance Grantee shall maintain a comprehensive liability policy in such amounts as may be commonly carried by owners of similar properties that shall protect the Grantee and its officers, employees and agents from claims, losses or damages arising out of the acts or omissions of the Grantee Parties occurring in the Easement Area. All such policies shall name the Grantor as an additional insured. Grantor acknowledges that the insurance to be procured by Grantee hereunder may not be a separate policy insuring the Basement Area, but that the Easement Area may be insured as part of the insurance policy covering other real property interests of Grantee. 3. Indemnification. ;..� � ., Grantee shall indemnify, defend and hold Grantor harmless from and against any and all liability, loss, damage, cost or expense (including, but not limited to, reasonable attorneys' fees and court costs) arising from or in connection with the Grantee's or any Grantee Parties' use of the Easement Area, provided that no indemnification is given for any of the foregoing resulting from Grantor's, or Grantor's representatives', agents', assigns', employees', consultants' or officers' negligence or willful misconduct. 4. Bindin b_ . This Agreement shall be binding on and shall inure to the benefit of the successors, and assigns of Grantor and. Grantee. 5125111 91302 #96659 v& 5. Attorneys' Fees. If any legal action or proceeding arising out of or relating to this Agreement is brought by either party to this Agreement, the prevailing party shall be entitled to receive from the other party, in addition to any other relief that may be granted, the reasonable attorneys' fees, costs, andexpenses incurred in the action or proceeding by the prevailing party. 6. Recordation of Agreement. This Agreement shall be recorded in the Official Records of Orange County, State of California, and shall serve as notice to all parties succeeding to the interest of the parties hereto that their use of the Grantee Parcel and. Grantor Parcel shall be benefited or restricted., or both, in the manner herein described. 7. Entire Agreemgnl A tnendments. This Agreement and that certain. Agreement Regarding Access Easement contain the entire agreement of the parties hereto relating to the casement herein granted. Any representations or modifications concerning this Agreement shall be of no force and effect, accepting a subsequent modification in writing, signed by all of the then. current owners of the Grantee Parcel and the Grantor Parcel and recorded in the Official Records of Orange County, State of California. 8. Warranty of Authority. Grantor hereby represents and warrants to and for the benefit of Grantee that (i) Grantor has full power and. authority to place the encumbrance of this Agreement on the Grantor Parcel, (ii) Grantor has not conveyed (or purported to convey) any right, title or interest in or to the Grantor Parcel except as has been disclosed herein., and (iii) if necessary or appropriate, Grantor has the written consent of any lenders, tenants and subtenants of the Grantor Parcel to the terms and conditions of this Agreement. 9. Notices. All notices, demands, solicitations of consent or approval, and other communications hereunder required or permitted shall be in writing and shall be deemed to have been given (i) when personally delivered or telecopied, (ii) one (1) business day after the date when deposited with an overnight courier or (iii) three (3) business days after the date when deposited in the United States .mail and sent postage prepaid by registered or certified mail, return receipt requested, addressed as follows: If to Grantor: Rancho San Juan Development LLC c/o Woodbridge Homes 27285 Los Rambles, Suite 260 Mission Viejo, CA 92691 Attention: Todd Cunningham, Manager Telephone No.: 9491493-1171 Facsimile No.: 949/661-5451 E-mail with a copy to: HIP Capital .Partners 19800 MacArthur Blvd.., Suite 700 Irvine, CA 92612 Attention: Jay W. Pruitt, Partner/Senior Vice President Telephone: 949/655-7605 Email: If to Grantee: City of San Juan Capistrano 32400 Paseo Adelanto San .Tuan Capistrano, California 92675 Attention: City Manager/City Cleric 5/25111 9130.2 #96659 v8 with a copy to: Attention: Telephone No.: Facsimile No.: E-mail: One Party may change its address for notice purposes under this Agreement by giving the other Party written notice of such change in the manner prescribed above. 10. Counterparts. This Agreement may be signed in multiple counterparts which., when signed by all parties, shall constitute a binding agreement. (Signature Page Follows] 5/25/11 9130.2 #96659 v8 4 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. "GRANTEE" "GRANTOR" CITY OF SAN JUAN CAPISTRANO RANCHO SAN JUAN DEVELOPMENT LLC, a Delaware limited liability company By: �- — By: Woodbridge Builders, I,I,C Name: a Delaware limited liability company, City Manager Its: Managing Member By: Woodbridge COmmun.ities 11, LLC, a Delaware limited liability company, Its: Member By: APPROVED AS TO FORM: By: City Attorney 5/25111 91302 #966)9 v8 Todd Cunningham, Manager STATE OF CALIFORNIA ) ss COUNTY OF On --- , before ane, _ , a Notary Public, personally appeared _ , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are, subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(es), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon. behalf of which the person(s) acted, executed. the instrument. I certify under PENALTY Of PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Notary Public 5/25/11 9130,2 196659 v8 6 EXHIBIT A GRANTOR PARCEL. Parcel 1 of Lot Line Adjustment LLC 2003-004 recorded as Instrument No. 2003000294469 Official Records, together with the "Remainder Parcel" of "/Tact 16634 in the City of San Juan Capistrano per Map filed in Book 884, Pages 33 through 50, inclusive; of Miscellaneous Maps, both recorded in the Office of the County Recorder of Orange County, State of California. 5/25/11 91302 496659 v8 A-1 EXHIBIT B GRANTEE PARCEL (INSERT LEGAL DESCRIPTION] 5125/11 9130.2 #966-59 v8 B -j EXHIBIT C EASEMENT AREA LEGAL DESCRIPTION [ATTACHED] 5/25/11 9130.2 #196659 v8 C-1 EXHIBIT "C" Easement for Street and Utility and Access Road And Recreational Trail Purposes (Secondary High School Access Street) (City Open Space Access Road and Recreational Trail) That portion of Parcel 1 of Lot Line Adjustment LLA 2043-004 recorded as Instrument No. 2003000294469, Official Records, together with that portion of the "Remainder Parcel" of Tract 16634 in the City of San Juan Capistrano per map filed in boob 884, pages 33 through 50 inclusive of miscellaneous traps, both recorded in the office of the county recorder of Grange County, State of California, being more particularly described as follows: Beginning at the northwest corner of said Parcel 1; Thence North 681,13'09" East 25.012 feet to a line that is parallel with and 25 feet northeast of the southwesterly line of said Parcel 1; Thence along said parallel line, South 19117'33" East 551.08 feet; Thence North 671141'26" East 232:51 feet to the beginning of a tangent curve, concave northwesterly having a radius of 60.003 feet; Thence northeasterly along said curve a distance of 51.62 feet through a central angle of 491117'24" to a point on the southwesterly right-of-way line of La Pata Avenue (50 foot half width) as shown on said aforementioned Lot Line Adjustment 2003-0014; Thence along said right-of-way line, South 21'46'51" East 46.87; Thence leaving said right-of-way line, South 67041'26" West 204.91 feet; Thence South 52656'08" West 103.87 feet to a point on the southwesterly line of said Parcel 1 of said LLA 20033-004; Thence along said southwesterly line North 19°17'33" West 578.84 feet" Thence leaving said southerly line of said Parcel 1, South 70642'27" West 25.00 feet to a line that is parallel with and 25 feet southwesterly of the aforementioned southerly line of said Parcel 1; Thence along said parallel line, North 19617'33" West 58.13 feet to the northwesterly line of said "remainder Parcel" of Tract 16634; 5/25111 9130.2 #96659 v8 C-2 EXHIBIT D EASEMENT AREA MAP [ATTACHED] 5/25/11 9130.2 996659 A D-1. IN THE CITY OF SAN JUAN CAPISTRANO• COUNTY Off' ORANGE, STATE` OF CALIFORNIA I ! SHEET 1 OF 1 1— _267--•3 1 DRWN BY FKC DATE4-YI-int SCALE: 1"=100' CHKD BY JA DATE 4-0-10 SUBJECTACCESS EASEMEN, 5/25111 9130.2 496659 v8 U-2 EXHIBIT n ACCESS ROAD SPECIFICATIONS A road 22" in width consisting of ars S" base and 4" asphalt surface [MORE TO CONTE] 5/26/11 9130.2 496779 v7 D-]