16-0405_CAPISTRANO UNIFIED SCHOOL DISTRICT_2nd Amd & Restated Jt Comm Facilities AgrSECOND AMENDED AND RESTATED
JOINT COMMUNITY FACILITIES AGREEMENT
by and among
CAPISTRANO UNIFIED SCHOOL DISTRICT,
COMMI-INITY FACILITIES DISTRICT NO. 98-1A OF TTTE CAPISTRANO UNIFIED
SCHOOL DISTRICT (PACIFICA SAN JUAN),
CITY OF SAN JUAN CAPISTRANO
PACIFIC POINT DEVELOPMENT PARTNERS LLC
relating to
COMMI-INITY FACILITIES DISTRICT NO. 98-IA OF THE CAPISTRANO UNIFIED
SCHOOL DISTRICT
(PACIFICA SAN JUAN)
and
COMMUNITY FACILITIES DISTRICT NO. 98-IB OF THE CAPISTRANO UNIFIED
SCHOOL DISTRICT
(PACIFICA SAN JUAN)
and
SECOND AMENDED AND RESTATED
JOINT COMMUNITY FACILITIES AGREEMENT
THIS SECOND AMENDED AND RESTATED JOINT COMMLINITY FACILITIES
AGREEMENT (the "Agreement") dated as of March 1,2016, by and among the CAPISTRANO
LTNIFIED SCHOOL DISTRICT, a public entity ("CUSD"), COMMUNITY FACILITIES
DISTRICT NO. 98-IA OF THE CAPISTRANO UNIFIED SCHOOL DISTRICT (PACIFICA SAN
JUAN) ("CFD No. 98-14"), the CITY OF SAN JUAN CAPISTRANO, a municipal corporation
(the "City"), and PACIFIC POINT DEVELOPMENT PARTNERS LLC, a Delaware limited
liability company (the "Developer"), and relates to both COMMI-INITY FACILITIES DISTRICT
NO. 98-lA OF TFm CAPTSTRANO UNTFTED SCHOOL DTSTRTCT (PACIFICA SAN JUAN)
and COMMUNITY FACILITIES DISTRICT NO. 98-IB OF THE CAPISTRANO LTNIFIED
SCHOOL DISTRICT (PACIFICA SAN JUAN). The City, CUSD, CFD No. 98-14, and the
Developer may be referred to herein individually as a "Part¡r" and collectively as the "Parties."
RECITALS:
A. In 1999, CUSD formed Community Facilities District No. 98-1 of the Capistrano
Unified School District, which was, in 2004, amended pursuant to the Mello-Roos Community
Facilities Act of 1982 being California Government Code Section 53311 et seq. (the "Act"), and
renamed Community Facilities District No. 98-lA of the Capistrano Unified School District
(Pacifica San Juan).
B. In connection with CFD No. 98-lA, CUSD recorded Amendment No. I to Notice of
Special Tax for Community Facilities District No. 98-14 on June 25,2004, in the Official Records
of Orange County as Document No. 2004000580583 (the "98-LA Notice of Special Tax Lien"),
which has attached as Appendix A thereto the document entitled "Amended and Restated Rate and
Method of Apportionment of Special Tax Lien for Capistrano Unified School District Community
Facilities District No. 98-14 (Pacifica San Juan)" (herein, the "98-1A RMA"). CFD No. 98-1A was
created to ler,y special taxes pursuant to the 98-lA RMA (the "98-14 Special Taxes") and to issue
bonds secured by such 98-14 Special Taxes (the "98-14 Bonds") to finance, among other things,
certain facilities to be owned and operated by CUSD (the "School Facilities").
C. The original boundaries of CFD No. 98-1,A. include lots for the development of 416
single-family residential units (the "Overall Project"). In2004, all of the taxable property in CFD
No. 98-14 was owned by SJD Partners, LTD, a California limited partnership ("SJD").
D. On January 31,2004, SJD, First American Title Insurance Company, and Lehman
ALI Inc., a Delaware corporation ("Lehman ALI"), entered into the Amended and Restated Deed of
Trust, Security Agreement and Fixture Filing Statement with Assignment of Rents (the "Deed of
Trust"). The Deed of Trust secured a loan (the "Loan") made by Lehman ALI to SJD.
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E. In addition, on January 3I, 2004, SJD executed the Amended and Restated
Memorandum of Assignment of Contracts to and for the benefit of Lehman ALI (the
"Assignment"). The Assignment was recorded on January 30, 2004 as instrument number
2004000075051.
F. Under the Act, CUSD, the City, and SJD entered into the Amended and Restated
Joint Community Facilities Agreement, dated as of June 14,2004 (the "Original JCFA") in order
for CFD No. 98-1A to finance certain capital facilities and fees.
G. Subsequent to the foregoing, the Overall Project was partially developed by the
construction and sale of 98 of the lots to homeowners (the "98 Lots"). The residual 318 lots (out of
the original416) remain undeveloped (the "Undeveloped Property").
H. ln 2007 , SJD defaulted under the terms of the Loan, and on June 18, 2008, Lehman
ALI assigned the Deed of Trust and its security interest in the "Loan Documents" (which included
the Assignment) to LV Pacific Point LLC, a Delaware limited liability company ("LVPP"), pursuant
to the Assignment of Deed of Trust and Subordination Agreements recorded as instrument number
2008000292518 (the "LVPP Assignment"). Under the LVPP Assignment, the term ool.oan
I)ocuments" is defined to mean, among other documents, the Deed of Trust and the Assignment.
I. LVPP, as successor-in-interest to Lehman ALI, foreclosed on the Deed of Trust and
the assigned security interest in the Loan Documents in a unified sale pursuant to California
Commercial Code Section 960a(a)(1)(B), and was the buyer at the foreclosure sale conducted on
August 28,2008. On September 9, 2008, the Trustee's Deed Upon Sale was recorded as instrument
number 2008000425460 (the "Trustee's Deed"), making LVPP the owner of the Undeveloped
Property and successor to SJD on all contracts, agreements, and documents executed or held by SJD
in relation to the Overall Project, including all contracts with governmental agencies entitling SJD to
receive CFD No. 98-14 monies, including the Original JCFA.
J. On May 19,2015, the Developer purchased the Undeveloped Property from LVPP,
and became the successor to LVPP and SJD under the Original JCFA.
K. Since acquiring the Undeveloped Property, the Developer has been in discussions
with CUSD and the City to make changes to the Impact Mitigation Agreement Related to
Community Facilities District No. 98-1A, dated as of June 14, 2004 (the "Original Mitigation
Agreement"), and the Original JCFA, to reflect changed circumstances resulting from the delay in
developing the Overall Project. CUSD, CFD No. 98-1A, the City, and the Developer have met and
agreed upon a series of changes to the Original Mitigation Agteement and the Original JCFA that
equitably address the concerns of the Parties.
L. To implement the agreed-upon changes, CUSD is in the process of forming a new
community facilities district over the Undeveloped Property (herein, the "98'18 Property") named
Community Facilities District No. 98-18 of the Capistrano Unified School District (Pacifica San
Juan) ("CFD No. 98-18r" and together with CFD No. 98-14, the "Districts") and will record a
Notice of Special Tax Lien over the 98-1B Property with the Rate and Method of Apportionment of
Special Tax (the "98-LB RMA") attached as an exhibit thereto. CFD No. 98-18 is being created to
levy special taxes pursuant to the 98-18 RMA (the "98-LB Special Taxes," and together with the
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98-14 Special Taxes, the "Special Taxes") and to issue bonds secured by such 98-lB Special Taxes
(the "98-l.B Bonds" and together with the 98-1A Bonds, the "Bonds") to finance School Facilities
and City Facilities (as defined below).
M. As part of the changes described above, CUSD, CFD No. 98-1A, and the Developer
entered into the "Amended and Restated Impact Mitigation Agreement Related to Community
Facilities District No. 98-lA and Community Facilities District No. 98-18" dated March 1,2016
(the "Amended and Restated Mitigation Agreement").
N. Also, as part of the changes described above, CUSD, CFD No. 98-14, the City, and
the Developer entered into this Agreement. This Agreement authorizes both CFD No. 98-lA and
CFD No. 98-18 to finance the facilities and amounts equal to the capital fees described in Exhibit A
attached hereto (the "City Facilities") up to the amount of $13,800,000 (the "City Facilities
Amount"). All of the City Facilities are authorized, or will be authorized, to be financed pursuant to
their respective formation resolutions of the Districts.
O. In conjunction with the formation of CFD No. 98-18 and exercising its powers
under the Act to levy special taxes at amounts less than the maximum amount, CUSD will record as
soon as practicable following the Statute of Limitations Expiration Date (as defined in the Amended
and Restated Mitigation Agreement, the "Statute of Limitations Expiration Date") an amendment
to the 98-14 Notice of Special Tax Lien (in the form of Exhibit D to the Amended and Restated
Mitigation Agreement) that will permanently reduce the special tax rates under the 98-14 RMA in
CFD No. 98-14 so as to achieve the 60.33% Reduction as defined in the Amended and Restated
Mitigation Agreement (the " 60.33 %o Re duction ").
P. Upon completion of the formation of CFD No. 98-18, both CFD No. 98-14 and
CFD No. 98-18 will be authorized to finance both School Facilities and City Facilities through all of
the following sources (the "CFD Funding Sources"): (i) the previous and future levy of 98-14
Special Taxes on the property in CFD No. 98-1A and the issuance of one or more series of 98-lA
Bonds secured by the levy of 98-14 Special Taxes on the property in CFD No. 98-14; and (ii) the
future levy of 98-18 Special Taxes on the property in CFD No. 98-lB and the issuance of one or
more series of 98-18 Bonds secured by the levy of 98-18 Special Taxes on the property in CFD No.
98-18, all as described in the Amended and Restated Mitigation Agreement and in this Agreement.
a. The provision of the School Facilities and the City Facilities is necessitated by the
development of the Overall Project and the Parties find and determine that the residents of the City,
CUSD, and the Districts will be benefited by the construction and/or acquisition of the City
Facilities and the School Facilities and that this Agreement is beneficial to the interests of such
residents.
R. 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 CUSD is authorized to assist in the
financing of the School Facilities. This Agreement constitutes a joint community facilities
agreement, within the meaning of Section 53316.2 of the Act, by and among the City, the
Developer, CFD No. 98-14, and CUSD, pursuant to which the Districts are authorized to
finance from the CFD Funding Sources the City Facilities up to the City Facilities Amount and
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School Facilities as provided in the Amended and Restated Mitigation Agreement and this
Agreement. As authorized by Section 53316.6 of the Act, responsibility for constructing,
providing, and operating the School Facilities is delegated to CUSD, and responsibility for
constructing, providing for, and operating the City Facilities is delegated to the City to the extent
set forth herein.
S. Other than the A Street Facilities as described in Recital U, all of the City Facilities
are authorized to be financed by either or both of CFD No. 98-14 andlor CFD No. 98-18. The
amount of CFD Funding Sources to be allocated to the financing of City Facilities is set forth in the
Amended and Restated Mitigation Agreement.
T. The City acknowledges receipt by the predecessors to the Developer of the deposit
of Authorized Fees (as defined herein) with the City, as shown under the caption "City Impact Fees -
Previously Paid Deposits" in Exhibit A attached hereto. The Developer is the successor to all
previous owners, and is entitled to the return of such deposits once an amount equal to the
corresponding Authorized Fees is paid from the CFD Funding Sources. The Parties acknowledge
that none of the Previously Paid Deposits include any fees paid by merchant home builders.
U. In the list of City Facilities set forth in Exhibit A attached hereto, the "4" Street
improvements (consisting of streets now known as Avenida California and Vista Marina, curb and
gutter, lighting, signalization, landscaping and monumentation on such streets, and the underlying
sewer, water, and storm drain improvements) in the amount of $6,998,148 (the "A Street
Facilities") will be financed by CFD No. 98-18, and such A Street Facilities were constructed as a
facility completed prior to the formation of CFD No. 98-18. Although the Developer's predecessor
was obligated to construct facilities in accordance with the Original JCFA, the Developer and the
City do not have access to the records of the Developer's predecessor to confirm compliance with
the Original JCFA, but the City has determined that such A Street Facilities were constructed in
accordance with the City's standards. Accordingly, the A Street Facilities have met all of the
conditions for financing Acquisition Facilities (as defined herein) set forth in Section 5 of this
Agreement and are authorized to be acquired from the Developer from the CFD No. 98-1B CFD
Funding Sources.
V. This Agreement is effective on the Effective Date (as defined in Section 2 below).
AGREEMENT
NOV/, THEREFORE, in consideration of the mutual promises and covenants set forth
herein, the Parties agree as follows:
1. Recitals. Each ofthe above recitals is incorporated herein and is true and correct.
2. Effective Date. This Agreement is effective on the Effective Date, and shall be
effective automatically and without any further action on the part of any Party. The term "Effective
Date" means the date that the Formation Conditions have been satisfied in full. The term
"Formation Conditions" means all of the following: (i) the qualified electors of the 98-18
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Property approve of the levy of special taxes in CFD No. 98-lB, the issuance of bonds, and the
appropriations limit by 213 or more of the votes cast on the ballot measures at the special election;
(iÐ CUSD adopts a resolution certifying the results of the special election; (iii) a notice of special
tax lien is recorded after the Statute of Limitations Expiration Date against the 98-18 Property
which contains the 98-18 RMA; (iv) an amendment to the 98-14 Notice of Special Tax Lien is
recorded after the Statute of Limitations Expiration Date to permanently lower the special tax rates
that may be levied in CFD No. 98-1A so as to achieve the 60.33% Reduction; (v) the Statute of
Limitations Expiration Date has occurred; (vi) the approval by CUSD and the execution by CUSD
and the Developer of the Purchase and Sale Agreement (as defined in the Amended and Restated
Mitigation Agreement); (vii) the approval by the City Council of the City and the Board of Trustees
of CUSD (on behalf of itself and CFD No. 98-lA), and the execution by the City, CUSD, CFD No.
98-14, and the Developer, of this Agreement; and (viii) the approval by the Board of Trustees of
CUSD (on behalf of itself and CFD No. 98-14), and the execution by CUSD, CFD No. 98-14, and
the Developer, of the Amended and Restated Mitigation Agreement. This Agreement shall be null
and void if the Effective Date has not occurred by December 31, 2016, or such later date as is
mutually agreed to by the Parties in writing.
J Sale of Bonds and Use of Proceeds. CUSD , acting as the legislative body of the
Districts, shall, in accordance with the Amended and Restated Mitigation Agreement, finance
the design, construction, and acquisition of School Facilities and the City Facilities with the
CFD Funding Sources.
The Developer acknowledges that the acquisition of the City Facilities and the amount
and timing for the funding of the City Facilities Amount shall be in all respects subject to the
Amended and Restated Mitigation Agreement and this Agreement.
The Bonds shall be issued only if CUSD determines that all requirements of state and
federal law, and all CUSD policies, including CUSD's Statement of Local Goals and Policies
Concerning the Use of the Mello-Roos Community Facilities Act of 1982, As Amended, revised as
of May 12,2008, have been satisfied or waived by CUSD or the City, as applicable.
4. Cit)'Facilities Accounts
a. The CFD Funding Sources for CFD No. 98-14 allocated pursuant to the
Amended and Restated Mitigation Agreement for City Facilities will initially be held by CFD No.
98-14, or by CUSD acting on behalf of CFD No. 98-14, in a City Facilities account (the "98-14
City Facilities Account") until the issuance of the first series of 98-14 Bonds. Upon the issuance
of the first series of 98-1A Bonds, the CFD Funding Sources for CFD No. 98-14 held in the 98-lA
City Facilities Account will be transferred to and held by the fiscal agent for CFD No. 98-14 (the
"Fiscal Agent"). The CFD Funding Sources for CFD No. 98-18 will initially be held by CFD No.
98-18, or by CUSD acting on behalf of CFD No. 98-18, in a City Facilities account (the "98-18
Cify Facilities Account" and together with the 98-1A City Facilities Account, the "City Facilities
Accounts") until the issuance of the first series of 98-18 Bonds. Upon the issuance of the first
series of 98-18 Bonds, the CFD Funding Sources for CFD No. 98-18 held in the 98-lB City
Facilities Account will be transferred to and held by the Fiscal Agent for CFD No. 98-lB.
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b. CUSD and the Fiscal Agent shall make disbursements from both the 98-14
City Facilities Account and the 98-lB City Facilities Account in accordance with Article 6 of the
Amended and Restated Mitigation Agreement. CUSD, the Districts and the Fiscal Agent(s) shall
not be responsible to the City for costs incurred by the City as a result of withheld or delayed
payments.
c. 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, upon request, will provide to the Districts its annual financial report certified
by an independent certified public accountant for purposes of calculating the Districts' arbitrage
rebate obligations. The District shall have the right to conduct its own audit of the City's records at
reasonable times and during normal business hours.
d. The Developer acknowledges that neither the City, CUSD, nor the Districts
has any obligation to pay any amount in excess of the City Facilities Amount, regardless of the
actual cost of the City Facilities.
5. Acquisition Facilities.
(a) Acquisition Facilities. Portions of the City Facilities described in Exhibit A
are categorized as "Acquisition Facilities." Other than the A Street Facilities (which are discussed
below in Section 5(h)), these facilities shall be referred to herein, individually, as an "Acquisition
Facility" or, collectively, as the "Acquisition Facilities." The Acquisition Facilities shall be
acquired by the City as set forth in this Section 5. The City's obligation hereunder to pay the
purchase prices of the Acquisition Facilities is limited to the CFD Funding Sources on deposit in the
City Facilities Accounts of the Districts.
(b)Plans and Specifications Developer shall be responsible for the preparation
of the plans and specifications (the "Plans and Specifications") for the Acquisition Facilities. The
Plans and Specifications shall be subject to the review and approval by the City and shall conform to
the requirements of the City for the Acquisition Facilities at the time of such approval.
(c) Construction and Inspection of the Acquisition Facilities. The Acquisition
Facilities must be constructed in accordance with the Plans and Specifications as approved by the
City. The Developer shall be solely responsible for the bidding, contracting, and construction of the
Acquisition Facilities to be acquired with the CFD Funding Sources in accordance with the
requirements set forth in this Section 5. The Districts shall have no responsibility whatsoever for the
bidding, contracting, andlor the construction of the Acquisition Facilities. The construction of the
Acquisition Facilities shall be subject to inspection by the City. Upon the request of the Developer,
the City shall notiff the Districts and the Developer in writing when each of the Acquisition
Facilities has been Substantially Completed (as defined below) in accordance with the Plans and
Specifications, and when each of the Acquisition Facilities has been Substantially Completed and is
ready for payment of the purchase price. The bid forms and winning bid (collectively, the "Bid
Documents") are subject to review and approval or rejection by the City. The City acknowledges
that expenditures with respect to such Acquisition Facility shall be eligible for funding from the City
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Facilities Accounts, subject to prior satisfaction of the following conditions precedent: (i) City
approval of the Bid Documents; (ii) the contractor to whom the Acquisition Facility contract is
awarded shall have paid not less than the prevailing rates of wages for all Acquisition Facility work
pursuant to Califurnia Labor Code Sections 1770, 1773, and 1773.1; and (iii) Substantial
Completion (as defined below) of the Acquisition Facility shall have occurred. Under current law as
of the date of this Agreement, the City hereby affirms that Developer's compliance with all
provisions of this Section 5(c) ensures that an Acquisition Facility to be acquired with the CFD
Funding Sources shall be constructed as if it had been constructed under the direction and
supervision, or under the authority of, the City.
For purposes of this Agreement, the terms "Substantially Complete" and "Substantial
Completion" when refening to an Acquisition Facility mean that: the Developer has notified the
City that the Acquisition Facility has been completed in accordance with its Plans and
Specifications; the City's inspector has inspected the facility, prepared a final "punch list," and has
determined that the punch list items required to be completed are items not required for the safe
operation of the Acquisition Facility and can therefore be completed after the purchase price of the
Acquisition Facility has been paid by the City and all contractors and subcontractors constructing
the Acquisition Facility shall have provided lien and material releases.
Subject to compliance with the City Facilities Amount, the purchase price of an Acquisition
Facility shall be the actual cost of the Acquisition Facility. The costs shown in Exhibit A are
estimates only and shall not limit the purchase price of an Acquisition Facility.
(d) Acquisition and Ownership of the Acquisition Facilities. Upon receipt by
the Districts of notification by the City that an Acquisition Facility has been Substantially
Completed in accordance with the Plans and Specifications, that Acquisition Facility shall be
deemed eligible for acquisition by the City from the CFD Funding Sources. Simultaneously upon
acquisition of such Acquisition Facility 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 shall be conveyed to
the City.
Upon acceptance of an Acquisition Facility by the City, the City shall incorporate the
Acquisition Facility into the City's maintained system (it being acknowledged by the Parties that
formal acceptance of an Acquisition Facility is not required for the payment of the purchase price of
such Acquisition Facility under this Agreement). Following the expiration of any warranty period
applicable to the construction of an Acquisition Facility during which time the Developer shall be
responsible for the maintenance of such Acquisition Facility, the City shall thereafter be responsible
for the maintenance of the Acquisition Facility in accordance with all applicable City maintenance
procedures and practices.
(e) Payment Requests. The form of payment request to be submitted to the
Districts by the Developer and the City in requesting payment by the Districts of the purchase price
of an Acquisition Facility shall be substantially in the form of Exhibit C hereto. Within ten business
days of Developer's submission to City of a payment request, City shall determine if the Acquisition
Facility has been Substantially Completed and shall either deny or approve the payment request,
which approval shall not be unreasonably withheld. If the City approves the payment requisition,
the City shall promptly counter-sign the payment request and submit it to CFD No. 98-14 or CFD
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No. 98-18, as applicable. If City denies any payment request, then it shall provide the Developer
with a detailed written explanation describing the reasons or rationale for such denial. All denied
payment requests may be resubmitted for approval. The Developer shall reimburse City for its
actual costs incurred in connection with the processing of such payment requests, including the
inspection of the Acquisition Facility, and such amounts shall be included in the purchase price paid
by the Districts. The sole source of funds for payment of the purchase price of an Acquisition
Facility shall be the CFD Funding Sources on deposit in the City Facilities Accounts, and
investment eamings, if any, thereon. The payment requisition for the purchase price of an
Acquisition Facility may be split between the Districts through submissions of separate payment
requisitions, so long as the aggregate of all payment requisitions for an Acquisition Facility does not
exceed the actual cost of such Acquisition Facility.
(Ð Expectations of the Parties. The Parties understand and agree that: (i) the
Developer may be constructing Acquisition Facilities prior to the availability of CFD Funding
Sources that will be available to pay for such Acquisition Facilities; (ii) the City may inspect such
Acquisition Facilities in accordance with this Agreement and process and complete payment
requests for the payment of such Acquisition Facilities with knowledge that there may be
insufficient CFD Funding Sources available at such time; (iii) the Acquisition Facilities may be
conveyed to and accepted by the City when there are insufficient CFD Funding Sources to pay the
purchase prices of such Acquisition Facilities; and (iv) in any such case, the payment of any
approved payment requests for the purchase prices of such Acquisition Facilities will be deferred
until there are sufficient CFD Funding Sources available to pay the purchase prices of such
Acquisition Facilities, at which time the Districts will make such payments in accordance with the
Amended and Restated Mitigation Agreement and this Agreement. At all times, the Developer will
be constructing such Acquisition Facilities with the expectation that the purchase prices for such
Acquisition Facilities will be paid from the CFD Funding Sources if and when they become
available. The conveyance of Acquisition Facilities to the City prior to receipt of the full purchase
prices for such Acquisition Facilities shall not be construed as a gift or a waiver of the payment of
the purchase prices, or any part thereof, for such Acquisition Facilities. The sole source of funds for
payment of the purchase price of an Acquisition Facility shall be the CFD Funding Sources on
deposit in the City Facilities Accounts, and investment earnings, if any, thereon.
(g) Ownership of Facilities. Notwithstanding the fact that some or all of the
Acquisition Facilities may be constructed in dedicated street rights-of-way or on property which has
been or will be dedicated to the City, the Acquisition Facilities shall be and remain the property of
the Developer until acquired by the City as set forth in this Agreement. The acquisition of the
Facilities may occur in advance of the payment of the purchase price of such Acquisition Facilities
and shall occur regardless ofthe adequacy ofthe CFD Funding Sources.
(h) A Street Facilities. Notwithstanding anything herein to the contrary, the A
Street Facilities are deemed Substantially Complete and, except for the completion of certain punch
list items, have satisfied all conditions precedent to the payment of the purchase price of such A
Street Facilities. In clarification of the foregoing, Section 5(a) through Section 5(e) shall not apply
to the A Street Facilities, and, following completion of the punch list items to the satisfaction of the
City, a payment requisition for the purchase price of the A Street Facilities submitted to the City by
the Developer shall be approved and counter-signed by the City, and promptly submitted to CFD
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No. 98-18. As specified in Section 5(Ð, payment may be delayed pending deposit of funds in the
City Facilities Account (from time to time in any number of installments as funds become available)
to pay such payment requisition, and the full amount of such payment requisition will not be paid if
ultimately there are insufficient funds in the City Facilities Account to make such payment.
6. Capital Fees
(a) Authorization. The Act allows for the financing of capital improvement
fees, and the City Facilities described in Exhibit A as "City Impact Fees" are capital
improvement fees that may be financed under the Act ("Authorized X'ees").
(b) Request for Payments Equal to Authorized Fees. The Developer may
request payment of an amount equal to Authorized Fees from the CFD Funding Sources on
deposit in the City Facilities Accounts to the City by executing and submitting to the Districts a
payment request in the form attached hereto as Exhibit B. Upon receipt of such payment
request, the applicable District shall pay, or cause to be paid to the City, such amount equal to
the Authorized Fees requested in such payment request to the extent of such CFD Funding
Sources on deposit in the City Facilities Accounts. Upon receipt of an approved payment request
completed in accordance with the terms of this Agreement, the Fiscal Agent shall wire transfer such
portion of requested funds as are then available for release to the City's bank account, as directed by
the City. As provided in Section 4(c), the City agrees to maintain adequate internal controls over its
payment function and to maintain accounting records in accordance with generally accepted
accounting procedures of its expenditures of such amounts for capital facilities of the City. The City,
upon request, will provide to the Districts its annual financial report certified by an independent
certified public accountant for purposes of calculating the Districts'arbitrage rebate obligations. The
Districts shall have the right to conduct their own audit of the City's records at reasonable times and
during normal business hours.
(c) Deposit of Authorized Fees in Advance of Availabilit)' of CFD Funding
Sources. The Parties acknowledge and agree that; (i) pursuant to the Original JCFA, some of
the Authorized Fees have been deposited with the City (the "Previously Paid Deposits"); (ii)
the Developer may be required pursuant to the Conditions of Approval or the fee ordinance to
deposit with the City the Authorized Fees prior to the availability of the CFD Funding Sources
to pay an amount in lieu of such Authorized Fees (the "Future l)epositsr" and together with the
Previously Paid Deposits, the "I)eposits"); and (iii) both the Previously Paid Deposits
(regardless of the entity that originally paid the Previously Paid Deposits) and any Future
Deposits paid by the Developer shall be refunded by the City to the Developer in the manner
set forth in subsection (d) of this Section 6, and any Future Deposits paid by a successor or
merchant builder shall be refunded by the City to the successor or merchant builder which paid
such amounts in the manner set forth in subsection (d) of this Section 6, unless specifically
assigned to another party. The City shall place each Deposit in a capital facilities account(s).
(d) Return of Deposits. Following the payment from the Districts to the City
from CFD Funding Sources for an amount equal to the corresponding Authorized Fees, the City
shall retum to the Developer (and to the Developer only) the Previously Paid Deposits
(regardless of the entity that originally paid the Previously Paid Deposits) from the capital
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account in which the corresponding Deposits were deposited the corresponding Deposits not
previously returned, without interest or other earnings thereon and the City shall return to the
Developer, a successor, or a merchant builder, Future Deposits to the Developer, successor, or
merchant builder that originally paid such Future Deposits (unless specifically assigned to
another party) from the capital account in which the corresponding Deposits were deposited the
corresponding Deposits not previously returned, without interest or other earnings thereon. The
City shall be so obligated to return such Deposits only to the extent that an amount equivalent
to the Deposits to be returned is deposited with the City from the CFD Funding Sources. The
Deposits may be returned from time to time as additional CFD Funding Sources become
available. The City has acknowledged receipt of the Previously Paid Deposits, and no backup
documentation of any kind is required as a condition to the return of such Previously Paid
Deposits once an equivalent amount of the CFD Funding Sources are deposited with the City.
(e) Deposits Allocated First. After payment of amounts equal to the Citywide
Development Fee as provided in Section 6(h) below, CFD Funding Sources used to pay an
amount equal to Authorized Fees shall be allocated first to enable return of all Deposits prior to
being allocated to the payment of amounts to be paid in lieu of Authorized Fees that have not
previously been deposited by the Developer. For example, if the Developer has paid $10,000 in
Deposits (say, $7,000 in Previously Paid Deposits and $3,000 in Future Deposits), and CFD
Funding Sources become available in the amount of $15,000 (net of the payment of the
Citywide Development Fee), the City shall apply the first $10,000 of the CFD Funding Sources
to the payment of an amount equal to the Authorized Fees that were paid by the Deposits (and,
thereafter, return the $10,000 in Deposits to the Developer) and use the remaining $5,000 of the
CFD Funding Sources for the funding of City Facilities in lieu of the Developer's deposit of
amount equal to the Authorized Fees identified in the payment requisition.
(Ð Application of Deposits. If it is determined that there will be no further
CFD Funding Sources available (now or in the future), or if the City Facilities Amount is
reached, any Deposits that have not been returned to the Developer at the time shall be retained
by the City and may be used for the purposes for which the Authorized Fee was required, and
the unretumed Deposits shall constitute full and final payment for such Authorized Fees,
without any increase of any kind. To the extent that Deposits or CFD Funding Sources are not
available to pay all Authorized Fees or all amounts in lieu of Authorized Fees, as applicable,
the Developer, or its successor shall be obligated to pay the unpaid Authorized Fees with
respect to applicable parcels when such Authorized Fees are otherwise due and payable.
(e) Expectations. The Parties acknowledge and agree that: (i) the Previously
Paid Deposits have been made, and that the Developer may pay Future Deposits prior to the
availability of CFD Funding Sources in an amount equal to such Authorized Fees; and (ii) any
Authorized Fees paid as Deposits were made with the agreement under the Original JCFA and
this Agreement that such Deposits would be returned to the Developer as the successor to
previous owners once payments to the City from the CFD Funding Sources are made, if, and
when, such CFD Funding Sources become available. The payment of Deposits prior to the
availability of the CFD Funding Sources shall not be construed as a dedication or gift of the
Authorized Fees, or a waiver of the rettrn of the CFD Deposits, it being the intention that an
amount equal to the Authorized Fees be paid by the CFD Funding Sources to the extent of the
10
CFD Funding Sources.
(h) Citvwide Development Fee. Notwithstanding the other provisions of this
Section 6, the Citywide Development Fee described in Exhibit A in the amount of $850,000 is
not required to be paid by the Developer in connection with the development of the Overall
Project. However, an amount equal to said Citywide Development Fee is to be financed by the
first available CFD Funding Sources on deposit in the City Facilities Accounts. The Parties
agree that the City may requisition CFD No. 98-14 for the payment of an amount equal to the
Citywide Development Fee, which amount equal to the Citywide Development Fee shall be the
first amounts relating to Authorized Fees that are paid to the City from the CFD Funding
Sources.
7. Indemnifisation. Except for damages caused by the negligence or willful misconduct
of any other person or entity, CUSD for itself and acting on behalf of the Districts, shall assume the
defense of, indemnify and save harmless, the City, its officers, employees, and agents, and each and
every one of them, from and against all actions, damages, claims, losses, or expenses of every type
and description to which they may be subjected or put, by reason of, or resulting from, CUSD's
performance for itself and on behalf of the Districts under this Agreement, or the design,
engineering, and construction of the School Facilities. No provision of this Agreement, though,
shall in any way limit the extent of CUSD's or the Districts responsibility for payment of damages
resulting from the operations of CUSD for itself and acting on behalf of the Districts and its
contractors; provided, however, that CUSD shall not be required to defend or indemniû any person
or entity as to actions, damages, claims, losses, or expenses resulting from the negligence or willful
misconduct of such person or entity, or their agents or employees.
Except for damages caused by the negligence or willful misconduct of any other person or
entity, the City shall assume the defense of, indemniS and save harmless, CUSD, its officers,
employees and agents, and the Districts, 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, the City's performance under this Agreement, or
the design, engineering and construction of the City Facilities. No provision of this Agreement,
though, shall in any way limit the extent of the City's responsibility for payment of damages
resulting from the operations of the City and its contractors; provided, however,that the City shall
not be required to defend or indemnify any person or entity as to actions, damages, claims, losses, or
expenses resulting from the negligence or willful misconduct of such person or entity, or their
agents or employees.
Except for damages caused by the negligence or willful misconduct of any other person or
entity, the Developer shall assume the defense of, indemnifu and save harmless, CUSD, the Districts
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 Developer with
respect to this Agreement; provided, however, that the Developer shall not be required defend or
indemnifu any person or entity as to actions, damages, claims, losses, or expenses resulting from the
negligence or willful misconduct of such person or entity, or their officers, agents, or employees.
L1.
8. Amendment. This Agreement may be amended at any time but only in writing
signed by each Party.
9. Entire Asreement. This Agreement amends and restates the Original JCFA and, as
of the date hereof, the terms of this Agreement shall control over the terms of the Original JCFA.
Each Party acknowledges that no representation by any Party which is not embodied herein or in
any other agreement, statement, or promise not contained in this Agreement shall be valid and
binding. The Parties agree to act in a manner which will not frustrate the purposes of this
Agreement
10. 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
Offrce in California, registered or certified, postage prepaid, addressed as follows:
CUSD and CFD
No.98-14:Capistrano Unified School District
33122 Valle Road
San Juan Capistrano, California 92675
Attn: Deputy Superintendent, Business and Support Services
City City of SanJuarì Capistrano
32400 Paseo Adelanto
San Juan Capistrano, California 92675
Attn: City Manager
Developer:Pacific Point Development Partners LLC
8105 Irvine Center Drive, Suite 1450
Irvine, California 92618
Attention: Phil Bodem
Each Party may change its address for delivery of notice by delivering written notice of such
change of address to the other Parties.
11
reference.
Exhibits. All exhibits attached hereto are incorporated into this Agreement by
12. Severability. If any part of this Agreement is held to be illegal or unenforceable by a
court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest
extent reasonably possible.
13. Goveming Law. This Agreement and any dispute arising hereunder shall be
governed by and interpreted in accordance with the laws of the State of California. Any dispute
arising hereunder shall be adjudicated in Orange County, California.
12
14. V/aiver. Failure by a Party to insist upon the strict performance of any of the
provisions of this Agreement by the other Parties, 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.
15. No Third Party Beneficiaries. No person or entity shall be deemed to be a third party
beneficiary hereof, and nothing in this Agreement (either express or implied) is intended to confer
upon any person or entity, other than the City, CUSD, the Districts, and the Developer (and their
respective successors and assigns), any rights, remedies, obligations, or liabilities under or by reason
of this Agreement.
t6. Successors and Assiens. All of the covenants, stipulations, promises, and
agreements contained in this Agreement by or on behalf of, or for the benefit of, any of the Parties,
shall bind or inure to the benefit of any of the successors and assigns of the respective Parties;
provided, however, that purchasers of completed residential units shall not be deemed to be
successors and assigns of the Developer for purposes of this Agreement, and shall have no right to
enforce any provisions of this Agreement.
I7. Sineular and Plural: Gender. As used herein, the singular of any word includes the
plural, andterms inthe masculine gender shall include the feminine.
18. Countemarts. This Agreement may be executed in counterparts, each of which shall
be deemed an original, but all ofwhich shall constitute but one instrument.
IREMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
L3
IN WITNESS WI{EREOF, the Parties have executed this Agreement as of the day and year
written below.
CAPISTRANO SCHOOL DISTRICT
By:
ATTEST:
By:
COMMUNITY FACILITIES DISTRICT NO 98-
1A OF T}IE CAPISTRANO LINIFIED SCHOOL
DISTRICT SANruAN)
By:
ATTEST:
By:
CITY OF SAN ruAN CAPISTRANO
ATTEST:
ISIGNATURES CONTINUED ON NEXT PAGE]
By:
By:
L4
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year
written below.
CAPISTRANO LTNIFIED SCHOOL DISTRICT
ATTEST:
COMMTIMTY FACILITIES DISTRICT NO 98-
1A OF TI{E CAPISTRANO UNIFIED SCHOOL
DISTRICT (PACIFICA SAN ruAN)
By:
ATTEST
CITY SAN JUAN
ftrloC
By:
By:
By
By:
ISIGNATURES
L4
ON NEXT PAGE]
ISIGNATURES CONTINUED FROM PREVIOUS PAGE]
By
PACIFIC POINT DEVELOPMENT PARTNERS LLC,
A Delaware limited liability company
Taylor Morrison Pacific Point Holdings, LLC,
A Delaware limited liability company,
Its
By
Name:3
Title: V'¡eQìr-lt*t
15
EXHIBIT A
DESCRIPTION OF CITY FACILITIES
Description 1t¡
City Impact Fees - Previously Paid Deposits
Park Imprôvements
Affordable Housing Improvements
Water Capacity Improvements
Water Capital Improvement Fee
Water Storage Fee
Non-Domestic Water Improvements
La Novia Fair Share
Fair Share of Southbound Ortega Hwy. Off-ramp
Fair Share ofNorthbound Ortega Hwy. Off-ramp
La Novia Widening
Subtotal - Previously Paid Deposits
City Impact Fees - Future Deposits
Systems Development Improvements (21 l)
Systems Development Improvements (364)
Agricultural Preservation Improvements
Sewer Connection Improvements
Citywide Development Fee
Signalization - San Juan Creek @ Valle Road (Fair Share)
Subtotal - Future Deposits
Acquisition Facilities (1) (3)
A Street - Storm Drain
A Street - Sewer
A Street - Water
A Street - Street Improvements
A Street - Landscape
A Street - Monument
Subtotal - A Street Facilities
La Novia Ave Improvements
Valle Road North Improvements
Camino Capistrano @ San Juan Creek Road Improvements
Subtotal - Acquisition Facilities
Amount (l)
s2,239,146
$1,800,000
$998,550
8778,464
$943,497
$700,000
$364,050
s76,979
92,604
$225,000
$8,128,290
$15,900
$760,653
$159,000
s|,412,457
$850,000
$106,400
$3,304,410
$1,751,385
s562,027
$1,781,691
$1,961,019
s923,526
$18,500
$6,998,148
$1,682,000
$692,000
$ 197,000
$2,571,000
Total City Authorized Fees and Facilities(2)$21,001,848
Notes:
(t) The facilities descriptions and associated costs are estimates. Detailed scope and limits of specifîc
facilities will be determined as appropriate, consistent with the standards of the City. The Authorized
Fees and Facilities listed above may be modified in a written supplement executed by Developer and
City Engineer.
(2)th. City Facilities financed by the Districts will not exceed $13,800,000.
(')Th" t.rrn "A Street Facilities" refers to facilities consisting of streets now known as Avenida
California and Vista Marina, curb and gutter, lighting, signalization, landscaping and monumentation
on such streets, and the underlying sewer, water, and storm drain improvements.
A-1
EXHIBIT B
DISBURSEMENT REQUEST FOR AMOUNTS EQUAL TO AUTHORIZED FEES
[Choose one: Community Facilities District No. 98-14 of the Capistrano Unified School
District (Pacifica San Juan) ("CFD No. 98-14"); or Community Facilities District No. 98-lB of the
Capistrano Unified School District (Pacifica San Juan) ("CFD No. 98-18")l is hereby requested to
pay from the City Facilities Account, to the City of San Juan Capistrano (the "City"), as Payee, the
sum set forth below:
$(the "Requested Amount")
1. The Requested Amount represents the payment of an amount equal to Authorized
Fees for property within the Overall Project (the "Property") described as follows:
2. The Requested Amount is due and payable, has not formed the basis of any prior
request or disbursement.
3. The Requested Amount shall be payable to the City pursuant to the wiring
instructions attached hereto.
4. The Requested Amount is authorized and payable pursuant to the terms of the
certain Second Amended and Restated Joint Community Facilities Agreement among the
Capistrano Unified School District, Community Facilities District No. 98-1A of the Capistrano
Unified School District (Pacifica San Juan), Pacific Point Development Partners LLC (the
"Developer"), and the City dated as of March 1,2016 (the "Agreement").
5. Capitalized undefined terms used herein shall have the meaning ascribed to them in
the Agreement.
Executed by an authorized representative of each of the Developer and the City
CITY OF SAN JUAN CAPISTRANO
By:
ATTEST:
By
B-L
PACIFIC POINT DEVELOPMENT PARTNERS LLC,
A Delaware limited liability company
By: Taylor Morrison Pacific Point Holdings, LLC,
A Delaware limited liability company,
Its Managing Member
Name:
Title
By
B-2
EXHIBIT C
F'ORM OF ACQUISITION FACILITY PAYMENT REQUEST
The undersigned, hereby requests payment in the total amount of $for the
below-described Acquisition Facility from [Chooso one: Community Facilities District No. 98-14
of the Capistrano Unified School District (Pacifica San Juan) ("CFD No. 98-14"); or Community
Facilities District No. 98-18 of the Capistrano Unified School District (Pacifica San Juan) ("CFD
No. 98-18")], all ¿ìs mor€ fully described in Attachment t 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
setforthherein.
2. The Developer requests the payment of the purchase price in the amount set forth
above for the following Acquisition Facility:
3. All costs ofthe Acquisition Facility for which payment is requested hereby are actual
costs and have not been inflated in any respect. The actual costs for which payment is requested
have not been the subject of any prior disbursement request submitted.
4. [For Acquisition Facilities other than A Street Facilities only: ,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.]
5. The Acquisition Facility for which payment is requested was constructed in
accordance with the requirements ofthe Agreement.
6. The undersigned is in compliance with the terms and provisions of the Agreement
and no portion of the amount being requested to be paid was previously paid.
7. The purchase price for the Acquisition Facility, when combined with amounts
paid under all previous payment requisitions under the Agreement does not exceed the City
Facilities Amount.
8.Please authorize payment of the purchase price by the CFD No. _ to the
undersigned pursuant to the following wiring instructions
9. Capitalized terms not defined herein shall have the meanings given such terms in
the Second Amended and Restated Joint Community Facilities Agreement by and among
Capistrano Unified School District (the "CUSD"), Community Facilities District No. 98-14 of the
Capistrano Unified School District (Pacifica San Juan), City of San Juan Capistrano (the "City") and
Pacific Point Development Partners LLC ( the "Developer"), dated as of March l, 2016 (the
"Agreement").
c-1
I declare under penalty of perjury that the above representations and warranties are fue and correct.
PACIFIC POINT DEVELOPMENT PARTNERS LLC,
A Delaware limited liability company
By: Taylor Morrison Pacific Point Holdings, LLC,
A Delaware limited liability company,
Its ManagingMember
Name:
Title
Agreed and Approved:
CITY OF SAN JUAN CAPISTRANO
By:
ATTEST:
By:
By
c-2
ATTACHMENT I
SUMMARY Or ACQUTSTTTON FACTLTTY(rES)
TO BE ACQUIRED AS PART OF PAYMENT REQUEST
[List here allAcquisition Facilities which payment isrequested, andattach support documentation,
if requiredl