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16-0405_CAPISTRANO UNIFIED SCHOOL DISTRICT_F6_Agenda ReportCity of San Juan Capistrano Agenda Report TO : Honorable Mayor and Members of the City Council FROM : ~ Siegel, City Manager SUBMITTED BY: Ken AI-Imam, Interim Chief Financial Officer /)L DATE : April 5, 2016 4/5/2016 F6 SUBJECT: Approval of Second Amended and Restated Joint Community Facilities Agreement Regarding Community Facilities District No. 98-1 (Pacifica San Juan) RECOMMENDATION : By motion, approve the Second Amended and Restated Joint Community Facilities Agreement. EXECUTIVE SUMMARY: As reported to City Council in an informational report on March 15, 2016, the developer for the Pacifica San Juan housing development (Taylor Morrison) has been working with homeowners and the Capistrano Unified School District to modify the Special Tax rate that is applicable to Community Facilities District No. 98-1. A tentative agreement has been reached that will result in a reduction to the Special Tax that is currently being paid by existing homeowners in Pacifica San Juan. City Council approval of the Second Amended and Restated Joint Community Facilities Agreement is required in order for this Special Tax reduction to take effect. DISCUSSION/ANALYSIS: The Pacifica San Juan housing development was entitled for 416 homes. To date, only 98 homes have been built and sold to homeowners. A summary of significant events associated with this development project is set forth below: 1999 The Capistrano Unified School District formed Community Facilities District No. 98-1 ("the CFD") of the Capistrano Unified School District. The School District formed the CFD pursuant to the Mello-Roos Community Facilities Act of 1982. 2004 The School District and the City of San Juan Capistrano entered into an City Council Agenda Report April 5, 2016 Page 2 of 4 2004- 2008 2008 2015 Amended and Restated Joint Community Facilities Agreement. The purpose of this agreement was to set forth the intent to use the CFD to finance developer fees and capital facilities ("Project Costs") of the School District and the City that are related to the Pacifica San Juan residential housing project. The original developer (SunCal) and homebuilder John Laing Homes constructed and sold to private homeowners 98 of the 416 homes intended to be built. The developer constructed public infrastructure and paid certain fees to the City. Subsequent to the sale of the initial 98 homes and prior to construction of the remaining 318 homes, the developer defaulted on its debt obligations causing its creditor to foreclose on the remaining undeveloped property. On May 19, 2015, Pacific Point Development Partners LLC led by Taylor Morrison Homes ("Taylor Morrison") purchased the remaining undeveloped property. As a part of that purchase, Taylor Morrison acquired the right to receive reimbursement for any public facility costs and development fees previously paid by the original developer. Under the provisions of the Mello-Roos Community Facilities Act of 1982, community facilities districts are authorized to issue bonds to finance public improvements and related development fees. The bonds are repaid by Special Taxes levied on the homeowners. Neither the School District nor the City have any obligation to pay the debt service associated with these bonds. To facilitate the issuance of the bonds, a Second Amended and Restated Joint Community Facilities Agreement has been developed to address the changed circumstances associated with this project. For purposes of assessing the Special Tax that will fund the debt service on the bonds, CFD 98-1 is proposed to be reformed into two community facilities districts, CFD 98-1A pnd CFD 98-1 B. CFD 98-1A will apply an across-the-board tax rate of 39.67% of the maximum tax to all homes within the project (including both the 98 existing homes and the 318 new homes). This is a reduction from the rate of 57.73% of the maximum that was approved in 2009 (which reflected an adjustment that was made at that time). CFD 98-1 B will add an additional component to the Special Tax to be paid by the 318 new homeowners for a portion of the total development cost that is attributable solely to the new homes. The amount to be paid by each of the new homeowners depends upon which zone of the remaining development the home will be located. The existing homeowners are supportive of the proposed changes. City Council Agenda Report April 5, 2016 Page 3 of 4 On March 15, 2016, City Council received and filed an informational report regarding the planned amendments to Community Facilities District No. 98-1 and directed staff to return in April 2016 with the final version of the Second Amended and Restated Joint Community Facilities Agreement to be considered for approval. On March 23, 2016, the Board of Trustees of the Capistrano Unified School District approved a resolution of intent to amend CFD 98-1. The Second Amended and Restated Joint Community Facilities Agreement has been reviewed by the City's bond counsel. FISCAL IMPACT: Most of the bond proceeds identified as City Facilities represent prior construction costs and development fees previously paid by the original developer of the project. Consequently, bond proceeds will be paid to Taylor Morrison, who is the successor to all previous owners and is entitled to reimbursements associated with costs paid by prior owners. A total of $27.6 million of the CFD bond proceeds will be available to provide reimbursement for School Facilities ($13.8 million) and City Facilities ($13.8 million). The $13.8 million of the CFD bond proceeds that is restricted for reimbursement for City Facilities will be applied as follows: $12,950,000 Reimbursement to developer for infrastructure construction and private development fees City mitigation fee to be paid to and retained by the City 850,000 $13.800.000 ENVIRONMENTAL IMPACT: Not applicable . PRIOR CITY COUNCIL REVIEW: • On September 13, 1999, the City Council approved a Joint Community Facilities Agreement with the Capistrano Unified School District. • On June 1, 2004, the City Council approved an Amended and Restated Joint Community Facilities Agreement with the Capistrano Unified School District. City Council Agenda Report April 5, 2016 Page 4 of 4 • On October 20, 2009, the City Council approved an adjustment to the Special Tax associated with CFD 98-1 . • On March 15, 2016, City Council received and filed an informational report regarding Community Facilities District No. 98-1 and directed staff to return in April 2016 with the final version of the Second Amended and Restated Joint Community Facilities Agreement. COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS: This item does not go through the Commission/Committee review process. NOTIFICATION: Capistrano Unified School District Pacific Point Development Partners LLC (Taylor Morrison) PaulL. Jenkinson, Pacifica San Juan Residents for Fair Taxation ATTACHMENTS: Attachment 1 -Second Amended and Restated Joint Community Facilities Agreement SECOND AMENDED AND RESTATED JOINT COMMUNITY FACILITIES AGREEMENT by and among CAPISTRANO UNIFIED SCHOOL DISTRICT, COMMUNITY FACILITIES DISTRICT NO. 98-IA OF THE CAPISTRANO UNIFIED SCHOOL DISTRICT (PACIFICA SAN JUAN), CITY OF SAN JUAN CAPISTRANO, and PACIFIC POINT DEVELOPMENT PARTNERS LLC relating to COMMUNITY FACILITIES DISTRICT NO. 98-lA 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) ATTACHMENT 1 SECOND AMENDED AND RESTATED JOINT COMMUNITY FACILITIES AGREEMENT TillS SECOND AMENDED AND RESTATED JOINT COMMUNITY FACILITIES AGREEMENT (the "Agreement") dated as ofMarch 1, 2016, by and among the CAPISTRANO UNIFIED SCHOOL DISTRICT, a public entity ("CUSD"), COMMUNITY FACILITIES DISTRICT NO. 98-1A OF THE CAPISTRANO UNIFIED SCHOOL DISTRICT (PACIFICA SAN JUAN) ("CFD No. 98-lA"), 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 COMMUNITY FACILITIES DISTRICT NO. 98-lA OF THE CAPISTRANO UNIFIED SCHOOL DISTRICT (PACIFICA SAN JUAN) and COMMUNITY FACILITIES DISTRICT NO. 98-lB OF THE CAPISTRANO UNIFIED SCHOOL DISTRICT (PACIFICA SAN JUAN). The City, CUSD, CFD No. 98-lA, and the Developer may be referred to herein individually as a "Party" 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. 98-1A, CUSD recorded Amendment No. 1 to Notice of Special Tax for Community Facilities District No. 98-1A 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-lA (Pacifica San Juan)" (herein, the "98-lA RMA"). CFD No. 98-1A was created to levy special taxes pursuant to the 98-1A RMA (the "98-lA Special Taxes") and to issue bonds secured by such 98-IA Special Taxes (the "98-lA 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. 98-1A include lots for the development of 416 single-family residential units (the "Overall Project"). In 2004, all of the taxable property in CFD No. 98-1A 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. 1 E. In addition, on January 31, 2004, SID 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 200400007 5051. 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. In 2007, SID 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 ("L VPP"), 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 "Loan Documents" 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 9604(a)(l)(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 SID to receive CFD No. 98-lA monies, including the Original JCFA. J. On May 19, 2015, the Developer purchased the Undeveloped Property from LVPP, and became the successor to L VPP and SJD under the Original JCF A. 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 Agreement and the Original JCF A 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-lB Property") named Community Facilities District No. 98-1B of the Capistrano Unified School District (Pacifica San Juan) ("CFD No. 98-lB," and together with CFD No. 98-1A, the "Districts") and will record a Notice of Special Tax Lien over the 98-1 B Property with the Rate and Method of Apportionment of Special Tax (the "98-lB RMA") attached as an exhibit thereto. CFD No. 98-1B is being created to levy special taxes pursuant to the 98-1B RMA (the "98-lB Special Taxes," and together with the 2 98-lA Special Taxes, the "Special Taxes") and to issue bonds secured by such 98-lB Special Taxes (the "98-lB Bonds" and together with the 98-lA 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-lA, 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-lB" dated March 1, 2016 (the "Amended and Restated Mitigation Agreement"). N. Also, as part of the changes described above, CUSD, CFD No. 98-lA, the City, and the Developer entered into this Agreement. This Agreement authorizes both CFD No. 98-lA and CFD No. 98-lB to fmance 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. 0. In conjunction with the formation of CFD No. 98-lB 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-lA 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-lA RMA in CFD No. 98-lA so as to achieve the 60.33% Reduction as defined in the Amended and Restated Mitigation Agreement (the "60.33% Reduction"). P. Upon completion of the formation of CFD No. 98-lB, both CFD No. 98-lA and CFD No. 98-lB 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-IA Special Taxes on the property in CFD No. 98-lA and the issuance of one or more series of 98-IA Bonds secured by the levy of 98-lA Special Taxes on the property in CFD No. 98-lA; and (ii) the future levy of 98-lB Special Taxes on the property in CFD No. 98-lB and the issuance of one or more series of 98-lB Bonds secured by the levy of 98-1 B Special Taxes on the property in CFD No. 98-lB, all as described in the Amended and Restated Mitigation Agreement and in this Agreement. Q. 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-lA, 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 3 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-lA and/or CFD No. 98-lB. The amount of CFD Funding Sources to be allocated to the fmancing 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 "A" Street improvements (consisting of streets now known as A venida 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-lB, and such A Street Facilities were constructed as a facility completed prior to the formation of CFD No. 98-lB. 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 fmancing Acquisition Facilities (as defmed herein) set forth in Section 5 of this Agreement and are authorized to be acquired from the Developer from the CFD No. 98-lB CFD Funding Sources. V. This Agreement is effective on the Effective Date (as defmed in Section 2 below). AGREEMENT NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, the Parties agree as follows: 1. Recitals. Each of the 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-lB 4 Property approve of the levy of special taxes in CFD No. 98-1B, the issuance of bonds, and the appropriations limit by 2/3 or more of the votes cast on the ballot measures at the special election; (ii) 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 98-1 B Property which contains the 98-1B RMA; (iv) an amendment to the 98-1A 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. 98-1A), and the execution by the City, CUSD, CFD No. 98-1A, and the Developer, of this Agreement; and (viii) the approval by the Board of Trustees of CUSD (on behalfofitselfand CFD No. 98-1A), and the execution by CUSD, CFD No. 98-1A, 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. 3. 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. City Facilities Accounts. a. The CFD Funding Sources for CFD No. 98-lA allocated pursuant to the Amended and Restated Mitigation Agreement for City Facilities will initially be held by CFD No . 98-lA, or by CUSD acting on behalf of CFD No. 98-1A, in a City Facilities account (the "98-lA City Facilities Account") until the issuance of the first series of 98-lA Bonds. Upon the issuance of the first series of 98-lA Bonds, the CFD Funding Sources for CFD No. 98-lA held in the 98-lA City Facilities Account will be transferred to and held by the fiscal agent for CFD No. 98-lA (the "Fiscal Agent"). The CFD Funding Sources for CFD No. 98-lB will initially be held by CFD No. 98-lB, or by CUSD acting on behalf of CFD No. 98-lB, in a City Facilities account (the "98-lB City Facilities Account" and together with the 98-lA City Facilities Account, the "City Facilities Accounts") until the issuance of the first series of 98-lB Bonds. Upon the issuance of the first series of 98-lB Bonds, the CFD Funding Sources for CFD No. 98-lB held in the 98-lB City Facilities Account will be transferred to and held by the Fiscal Agent for CFD No. 98-lB. 5 b. CUSD and the Fiscal Agent shall make disbursements from both the 98-IA City Facilities Account and the 98-IB 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 accordan~e 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) PlallS 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) Con truction 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, and/or 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 notify 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 6 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 California 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 referring 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) Acquis it ion 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) Pavment 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-lA or CFD 7 No. 98-lB, 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 earnings, 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. (f) 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 of the adequacy of the 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 S(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 8 No. 98-lB. As specified in Section 5(f), 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 Fees"). (b) Regue t 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 Availability of CFD Funding Sources. The Parties acknowledge and agree that; (i) pursuant to the Original JCF A, 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 Deposits," and together with the Previously Paid Deposits, the "Deposits"); 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 Depo it . 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 return 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 9 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 ofthe 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. (f) Application of Depo its. 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 unreturned 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. (g) 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 JCF A 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 return 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) Citywide 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-lA 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. Indemnification. 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 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 City shall assume the defense of, indemnify 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, indemnify 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 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 officers, agents, or employees. 11 8. Amendment. This Agreement may be amended at any time but only in writing signed by each Party. 9. Entire Agreement. 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 JCF A. 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 Office in California, registered or certified, postage prepaid, addressed as follows: CUSDandCFD No. 98-lA: City: Developer: Capistrano Unified School District 33122 Valle Road San Juan Capistrano, California 92675 Attn: Deputy Superintendent, Business and Support Services City of SanJuan Capistrano 32400 Paseo Adelanto San Juan Capistrano, California 92675 Attn: City Manager 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. Exhibits. All exhibits attached hereto are incorporated into this Agreement by reference. 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. Governing Law. This Agreement and any dispute ansmg 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. Waiver. 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. 16. Successors and Assigns. All of the covenants, stipulations, promises, and agreements contained in this Agreement by or on behalf of, or for the benefit of, any of the Parties, 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. 17. Singular and Plural; Gender. As used herein, the singular of any word includes the plural, and terms in the masculine gender shall include the feminine . 18. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all ofwhich shall constitute but one instrument. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 13 IN WilNESS WHEREOF, the Parties have executed this Agreement as of the day and year written below. ATTEST: By: __________________ _ ATTEST: By: __________________ _ ATTEST: By: __________________ _ CAPISTRANO UNIFIED SCHOOL DISTRICT By: ____________________ __ COMMUNITY FACILITIES DISTRICT NO 98- lA OF THE CAPISTRANO UNIFIED SCHOOL DISTRICT (PACIFICA SAN JUAN) By: ____________________ __ CITY OF SAN JUAN CAPISTRANO By: ____________________ __ [SIGNATURES CONTINUED ON NEXT PAGE] 14 [SIGNATURES CONTINUED FROM PREVIOUS PAGE] 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 By: __________________ _ Name: ------------------ Title: ------------------ 15 EXHIBIT A DESCRIPTION OF CITY FACILITIES Description (I) City Impact Fees-Previously Paid Deposits Park Improvements 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 of Northbound Ortega Hwy. Off-ramp La Novia Widening Subtotal-Previously Paid Deposits City Impact Fees-Future Deposits Systems Development Improvements (211) Systems Development Improvements (364) Agricultural Preservation Improvements Sewer Connection Improvements Citywide Development Fee Signalization-San Juan Creek@ Valle Road (Fair Share) Acquisition Facilities (I) (3) A Street-Storm Drain A Street -Sewer A Street -Water A Street -Street Improvements A Street -Landscape A Street -Monument La Novia Ave Improvements Valle Road North Improvements Subtotal -Future Deposits Subtotal -A Street Facilities Camino Capistrano @ San Juan Creek Road Improvements Subtotal-Acquisition Facilities Total City Authorized Fees and Facilities(2) Notes: Amount (I) $2,239,146 $1,800,000 $998,550 $778,464 $943 ,497 $700,000 $364,050 $76,979 $2,604 $225,000 $8,128,290 $15,900 $760,653 $159,000 $1,412,457 $850,000 $106,400 $3,304,410 $1,751,385 $562,027 $1,781,691 $1,961 ,019 $923,526 $18,500 $6,998,148 $1,682,000 $692,000 $197,000 $2,571,000 $21,001,848 (!)The facilities descriptions and associated costs are estimates. Detailed scope and limits of specific 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)The City Facilities financed by the Districts will not exceed $13,800,000. (3)The term "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. 98-1A of the Capistrano Unified School District (Pacifica San Juan) ("CFD No. 98-1A"); or Community Facilities District No. 98-1B of the Capistrano Unified School District (Pacifica San Juan) ("CFD No. 98-1B")] 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 wtrmg 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 undefmed 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-1 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 By: __________________ ___ Name: ------------------ Title: ------------------ B-2 EXHIBIT C FORM OF ACQUISITION FACILITY PAYMENT REQUEST The undersigned, hereby requests payment in the total amount of $ for the below-described Acquisition Facility from [Choose one: Community Facilities District No. 98-lA of the Capistrano Unified School District (Pacifica San Juan) ("CFD No. 98-1A"); or Community Facilities District No. 98-1B of the Capistrano Unified School District (Pacifica San Juan) ("CFD No. 98-lB")], all as more fully described in Attachment 1 hereto. In connection with this Payment Request, the undersigned hereby represents and warrants to the City as follows: 1. He( she) is a duly authorized officer of the undersigned, qualified to execute this Payment Request for payment on behalf of the undersigned and is knowledgeable as to the matters set forth herein. 2. 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 m accordance with the requirements of the 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-lA 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 1, 2016 (the "Agreement"). C-1 I declare under penalty of perjury that the above representations and warranties are true 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 Managing Member By: __________________ ___ Name: ------------------ Title: ------------------ Agreed and Approved: CITY OF SAN JUAN CAPISTRANO By: ______________________ _ ATTEST: By: __________________ __ C-2 ATTACHMENT I SUMMARY OF ACQUISITION FACILITY(IES) TO BE ACQUIRED ASP ART OF PAYMENT REQUEST [List here all Acquisition Facilities which payment is requested, and attach support documentation, if required]