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RES-10014 Joint Community Facilities District No. 2005-1I I RESOLUTION NO. 10014 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ORANGE APPROVING JOINT COMMUNITY FACILITIES AGREEMENT WITH THE ORANGE UNIFIED SCHOOL DISTRICT AND SERRANO HEIGHTS EAST, LLC WHEREAS, Serrano Heights East, LLC (the Developer), has requested that the Board of Education of the Orange Unified School District (the School District) form Community Facilities District No. 2005-1 (Tremont) of the School District (the CFD) pursuant to the Mello-Roos Community Facilities Act of 1982 (the Act), and that the CFD issue bonds (the Bonds) in order to finance certain School District facilities and capital and impact fees and in addition, certain City of Orange (City) park facilities, specifically the Serrano 9-B park and the Grijalva Park Community Center (the Improvements), and certain City capital and impact fees (the Fees); and WHEREAS, in order to enable the CFD to finance the Improvements and the Fees, Section 53316.2 of the California Government Code requires that the City and the School District enter into a joint cornmunity facilities agreement ("JCF A") prior to the formation of the CFD with respect to the Improvements and the Fees; and WHEREAS, attached hereto as Exhibit A is a copy of the proposed JCF A, by and among the City, the School District and the Developer relating to the Improvements to be owned or operated by the City and the Fees to be imposed by the City; and WHEREAS, the City Council, with the assistance of City staff, has reviewed the JCF A and the City Council now desires to approve the JCFA and direct its execution and delivery. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ORANGE DOES HEREBY RESOLVE AS FOLLOWS: Section 1. Approval of Joint Community Facilities Agreement. The City Council hereby approves the JCFA in the form attached hereto as Exhibit "A" and on file with the City Clerk and finds and declares that it will be of benefit to the residents residing within the City's jurisdiction. The City Manager is authorized and directed to execute the JCF A, for and in the name and on behalf of the City, in such form, together with any additions thereto or changes therein deemed necessary or advisable by the City Manager upon consultation with the City Attorney, with the City Council to be notified of any substantive changes to the JCFA. The approval of such changes shall be conclusively evidenced by the execution and delivery by the City Manager of the JCFA. Section 2. Official Actions. The Mayor, City Manager, the Director of Finance, the City Attorney and the City Clerk, and all other officers of the City, are hereby authorized and directed to take all actions and do all things necessary or desirable to implement the JCI' A, including but not limited to the execution and delivery of any and all agreements, certificates, documents and other instruments which they, or any of them, deem necessary or desirable and not inconsistent with the purposes of this Resolution and the JCI'A. Section 3. Effective Date. This Resolution shall take effect upon the date of its adoption. ADOPTED this 13th day of September, 2005. ATTEST: Mark A. Murphy, Ma~OfOrange Ctt<?-Mary E. M I, MARY E. MURPHY, City Clerk of the City of Orange, California, do hereby certify that the foregoing Resolution was duly and regularly adopted by the City Council of the City of Orange at a regular meeting thereof held on the 13th day of September, 2005, by the following vote: AYES: NOES: ABSENT: ABSTAIN: COUNCILMEMBERS: Smith, Ambriz, Murphy, Cavecche, Dumitru COUNCILMEMBERS: None COUNCILMEMBERS: None COUNCILMEMBERS: None Mary E. 0- 2- Quint & Thimmig LLP 9/1/05 I JOINT COMMUNITY FACILITIES AGREEMENT among ORANGE UNIFIED SCHOOL DISTRICT and CITY OF ORANGE and SERRANO HEIGHTS EAST, LLC relating to COMMUNITY FACILITIES DISTRICT NO. 2005-1 (TREMONT) OF THE ORANGE UNIFIED SCHOOL DISTRICT I 15013.01:JB:~62 I I JOINT COMMUNITY FACILITIES AGREEMENT THIS JOINT COMMUNITY FACILITIES AGREEMENT (the" Agreement") is entered into effective as of the _ day of , 2005 (the "Effective Date"), by and among the ORANGE UNIFIED SCHOOL DISTRICT, a public entity (the "School District"), the CITY OF ORANGE, a municipal corporation (the "City"), and SERRANO HEIGHTS EAST, LLC, a Delaware limited liability company (the "Company"), and relates to the proposed formation of COMMUNITY FACILITIES DISTRICT NO. 2005-1 (TREMONT) OF THE ORANGE UNIFIED SCHOOL DISTRICT (the "District"). RECITALS: A. The Company is the developer of the land described in Exhibit" A" hereto in the incorporated territory of the City of Orange, State of California (the "Property") and which is proposed to constitute the land within the boundaries of the District. B. The Company has requested that the Board of Education of the School District the "Board of Education") form and establish the District pursuant to the provisions of the Mello-Roos Community Facilities Act of 1982, Chapter 2.5 (commencing with Section 53311) of Part 1 of Division 2 of Title 5 of the California Government Code (the" Act"). The Company has requested that the District issue special tax bonds (the "Bonds") and use the proceeds of the Bonds (the "Bond Proceeds") to finance, among other things, the acquisition and/or construction of various public facilities to be owned and operated by the City and certain City fees, as described in Exhibit "B" hereto, including (i) certain public facilities to be constructed by or on behalf of the Company and ultimately owned and operated by the City (the "City Acquisition Facilities"), (ii) certain public facilities to be constructed and owned and operated by the City (the "City Fee Facilities") in lieu of the payment of City Fees described in Exhibit B hereto (the "City Fees"), and (iii) a capital facilities contribution to be made to the City in the amount of $350,000 (the "City Capital Contribution"). Upon the construction of the City Acquisition Facilities by or on behalf of the Company and the inspection and acceptance thereof by the City as described herein, the City Acquisition Facilities shall become part of the City's public facilities. The City Acquisition Facilities, the City Fee Facilities, and the City Capital Contribution are collectively referred to herein as the "City Facilities." C. The Company has sold the Property to MBK Tremont, LLC ("MBK") who has obtained, or is obtaining, the necessary development approvals to construct approximately 97 attached condominium residential units On the Property (the "Project"). D. The District shall also finance certain facilities described in Exhibit D hereto to be owned and operated by the School District (the "School Facilities"). It is expected that the cost of the School Facilities financed by the Bonds will exceed the cost of the City Facilities financed by the Bonds, therefore the School District is permitted to have primary responsibility for the formation and administration of the District. E. The provision of the School Facilities and the City Facilities is necessitated by the development of the land within the District and the City and the School District find and 1- determine that the residents of the City, the School District and the District will be benefited by the construction and/ or acquisition of the City Facilities and the School Facilities and that this Agreement is beneficial to the interests of such residents. F. The parties hereto intend to have the District assist in financing the City Facilities by disbursing Bond Proceeds to finance the construction and/ or acquisition of the City Facilities; provided however, that the parties acknowledge that the priority of funding shall be for financing costs, reserve fund deposits, capitalized interest, if any, and the School Facilities listed in Exhibit D (herein, the "First Priority Uses"), with the City Facilities being funded to the extent of available funds after satisfaction of the First Priority Uses. With respect to the funding of the City Facilities, the priority shall be first, the financing of the City Capital Contribution; second, the funding of an amount (the "City Fee Facilities Amount") to be used to finance the City Fee Facilities; and third, the funding of an amount for the City Acquisition Facilities. G. The City is authorized by Section 53313.5 of the Act to assist in the financing of the acquisition and/ or construction of the City Facilities, and the School District is authorized to assist in the financing of the School Facilities. This Agreement constitutes a joint community facilities agreement, within the meaning of Section 53316.2 of the Act, by and among the City, the School District and the Company, pursuant to which the District when formed will be authorized to finance the construction and/ or acquisition of the City Facilities. As authorized by Section 53316.6 of the Act, responsibility for constructing, providing and operating the School Facilities is delegated to the School District and responsibility for constructing, providing for and operating the City Facilities is delegated to the City to the extent set forth herein. AGREEMENT NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, the parties hereto agree as follows: 1. Recitals. Each of the above recitals is incorporated herein and is true and correct. 2. Proposed Formation of District. At the request of the Company, the School District will undertake to analyze the appropriateness of forming a community facilities district to finance, among other things, the City Facilities. The School District will retain, at the Company's expense, the necessary consultants to analyze the proposed formation of the District, including an engineer, special tax consultant, bond counsel, appraiser and other consultants deemed necessary by the School District. The City has retained counsel to assist it in the review and drafting of this Agreement, and the City expects to retain a consultant to assist it with the inspection and coordination of construction of the City Acquisition Facilities. The Company agrees to promptly pay the fees and expenses of any such consultants retained by the School District or the City, upon receipt of an invoice or invoices therefor, which costs related to consultants engaged to assist in the inspection and coordination of construction of the City Acquisition Facilities shall be a part of the Actual Costs (as defined in the last paragraph of Section 5 below) of the City Acquisition Facilities. 2- I I 3. Sale of Bonds and Use of Proceeds. a) City Facilities Account. In the event the District is formed, the Board of Education of the School District acting as the legislative body of the District may, in its sole discretion, finance the design, construction and/ or acquisition of the School Facilities and City Facilities by issuing the Bonds and levying special taxes of the District. The Bonds shall be governed by the fiscal agent agreement or bond indenture to be hereafter executed in connection with the issuance of the Bonds (the "Fiscal Agent Agreement"). Bond Proceeds to the extent designated for the City Facilities shall be held, together with all Bond Proceeds designated for the acquisition and/ or construction of School Facilities, by the fiscal agent for the District (the "Fiscal Agent") in a special fund (however denominated in the Fiscal Agent Agreement, but hereinafter referred to as the "Acquisition and Construction Fund") which shall be invested by the Fiscal Agent and earn and accumulate its own interest. The portion of the Bond Proceeds attributable to construction of the City Facilities shall be deposited into a separate account of the Acquisition and Construction Fund for the City Facilities (however denominated in the Fiscal Agent Agreement, but hereinafter referred to as the "City Facilities Account"), and the Fiscal Agent Agreement shall provide that the City shall direct the investment of amounts in the City Facilities Account subject to the permitted investments for the Acquisition and Construction Fund specified in the Fiscal Agent Agreement. b) Deposits. When the Bonds are issued, a portion of the Bond Proceeds shall be deposited in (i) a special account designated as the "School Facilities Account" of the Acquisition and Construction Fund, and (ii) the City Facilities Account. As of the date of this Agreement, the School District does not know the amount, if any, which may be deposited in the School Facilities Account, but currently estimates the amount to be deposited to be 3,312,569. Once a deposit is made to the City Facilities Account, the District shall notify the City of the amount of such Bond Proceeds deposited to the City Facilities Account. If for any reason the amount deposited to the City Facilities Account is less than 350,000, the Company shall, within five business days of the date of issuance of the Bonds, remit to the City cash in an amount equal to the difference between the amount deposited to the City Facilities Account and $350,000, which funds the City agrees to expend for costs of the Grijalva Gym/Sports Center. c) Credit For City Fees. To the extent that Bond Proceeds in excess of $350,000 are deposited to the City Facilities Account, the amount in excess of $350,000, up to the next 196,548, shall be considered to be the "City Fee Facilities Amount" for purposes of this Agreement. The City shall provide a dollar for dollar credit with respect to the City Fees for the City Fee Facilities Amount. In the event that the City Fee Facilities Amount is less than the amount of the City Fees (as shown in Exhibit B hereto), the City shall determine the specific fee obligations to be so credited. The School District and the District shall have no liability to the Company or any other party with respect to the amount or allocation of credits against applicable City Fees provided by the City. Nothing herein shall supersede the obligation of an owner of the Property to pay the City Fees to the City when due. The purpose of this Agreement is to provide a mechanism by which the District may issue the Bonds to provide a source of funds to finance City Fee 3- Facilities, which, when and if the Bonds are issued and the City Capital Contribution is paid in full from the City Facilities Account, may be used in lieu of the payment of City Fees and, when and if other Bond proceeds are deposited to the City Facilities Account, to finance City Acquisition Facilities. In the event that Bond Proceeds deposited in the City Facilities Account are not available or sufficient to satisfy City Fee obligations after paying the City Capital Contribution, then such owner shall remain obligated to pay the uncredited City Fees to the City as a condition of receiving any further building permits for the Property. d) Financing City Acquisition Facilities. In the event that Bond Proceeds deposited to the City Facilities Account are in excess of $546,548, the excess shall be available to pay costs of the City Acquisition Facilities, as provided in Section 5 below. e) Discretion of School District. The Company acknowledges that the acquisition of the City Facilities, induding the amount and timing for the delivery of all funding, required for the City Facilities shall be in all respects subject to the sole discretion and approval of the City and the School District, as applicable, and neither the City, the District nor the School District shall be liable for the failure to issue the Bonds or the failure to issue the Bonds in an amount sufficient to pay for all or any part of the City Facilities. In no event will an act, or an omission or failure to act, excepting only in the event of the gross negligence or willful misconduct, by the City, the School District or the District with respect to the disbursement or non-disbursement of funds pursuant to this Agreement subject the District, the School District or the City to pecuniary liability hereunder. f) Conformity with Policies. The Bonds shall be issued only if in its sole discretion the Board of Education determines that all requirements of state and federal law and all School District policies have been satisfied or waived by the School District. In no event shall the Company or the City have a right to compel the issuance of the Bonds. The School District agrees to use its good faith efforts to issue the Bonds in an amount sufficient to fund the School Facilities and, after payment of costs of issuance and administrative expenses, as much of the City Facilities Account that can be supported by the rate and method of apportionment and the value of the property in the District; subject however to market conditions, the School District's Local Goals and Policies for Community Facilities Districts, and the advice of the consultants engaged by the School District in connection with the issuance of the Bonds. Notwithstanding the foregoing, the School District shall have no liability if the Bonds are not issued, or are issued in an amount that is not sufficient to finance all or any part of the City Facilities. 4. City Capital Contribution, City Fee Facilities: Disbursements; Advances. a) Disbursement. From time to time following the funding of the City Facilities Account of the Acquisition and Construction Fund, (i) the City may notify the District in writing of a request for the disbursement of all or any portion of the first $350,000 on deposit in the City Facilities Account for the payment of the City Capital Contribution, and (ii) with respect to the next $196,548 of the amount in the City Facilities Account, the City may notify the District in writing and request a disbursement from the City Facilities Account to fund City Fee Facilities. Upon receipt of any such request from the City, the District shall wire transfer or 4- I I otherwise pay to the City such requested funds to the extent that Bond Proceeds are available in the City Facilities Account of the Acquisition and Construction Fund for such purpose. The City agrees to apply any amounts received by it pursuant to this paragraph to costs of Grijalva Gym/Sports Center (with respect to amounts drawn in respect of the City Capital Contribution) or to costs of the City Fee Facilities (with respect to draws in regard to the City Fee Facilities Amount), and not for purposes of reinveshnent. b) Withheld or Delayed Payments. The Fiscal Agent shall make disbursements from the Acquisition and Construction Fund in accordance with the terms of the Fiscal Agent Agreement and the School District and the District shall take such actions as are necessary to cause the Fiscal Agent to make such disbursements in a timely fashion, but they shall not be responsible for any actions or failure to act on the part of the Fiscal Agent. The District shall make the City an intended third party beneficiary of the Fiscal Agent Agreement, so that the City may, at its option, enforce the draw and inveshnent provisions with respect to amounts in the City Facilities Account against the Fiscal Agent. c) Expenditures. The City reasonably expects and agrees to expend amounts disbursed to the City from the City Facilities Account on costs of the Grijalva Gym/Sports Center or City Fee Facilities, as applicable, within three years from the date the Bonds are issued, but the City shall have no liability if for any reason amounts are not so spent. d) Internal Controls. The City agrees to maintain adequate internal controls over its payment function and to maintain accounting records in accordance with generally accepted accounting procedures with respect to the expenditure of amounts disbursed to it from the City Facilities Account. The City will, upon request, provide to the District the records as to the use of funds remitted to it from the City Facilities Account for purposes of calculating the District's arbitrage rebate obligations. e) Advances. Prior to the formation of the District or the issuance of the Bonds, and in conjunction with the issuance of building permits for the construction of homes within the Project, MBK, or its successors or assigns, may elect or be required to ad vance City Fees to the City (the" Advances"). It is the intent of the City and the Company to finance the City Fee Facilities with the Bond Proceeds so that all of the City Fees for all units in the Project are credited as specified in Section 3(c) above. Accordingly, for all Advances made, or to be made, by MBK or its successors, prior to the issuance of the Bonds, the City shall hold such Advances unexpended pending payment for the City Fee Facilities through the Bond Proceeds. If the Bonds are issued and funds in respect of the City Fee Facilities Amount are deposited in the City Facilities Account, then the City shall pay the Company (and the Company only) an amount equal to all Advances but solely from such Advances (excluding interest earnings thereon) up to the amount of funds deposited to the City Facilities Account in respect of the City Fee Facilities Amount (i.e. the amount deposited to the City Facilities Account up to 196,548 in excess of $350,000). The City shall only be required to hold the Advances unexpended until March 1, 2006. After such date, the City may expend such Advances, in which case City Fee Facilities equal to such expended amount shall be deemed paid and such Advances will not be paid to the Company. Notwithstanding the foregoing, the City shall make no payments to the Company of the Advances made by MBK or another party unless and until the Company provides evidence satisfactory to the City Attorney of its legal right to such 5- payments (which may be evidenced by an agreement or letter signed by the party that paid the Advances acknowledging or consenting to such payments being made to the Company). f) Construction. The City will complete the plans and specifications for construction of the City Fee Facilities in a form and substance which is satisfactory to the City. The Company agrees hereby that the owner of the Property will be solely responsible to pay any and all City Fees relating to the development of the Property in excess of the amount of the credit for the City Fees provided by Section 3(c) of this Agreement, which City Fees shall be due at the time such City Fees would otherwise be collected for the Project. 5. City Acquisition Facilities. The following provisions of this Section 5 shall apply solely with respect to those City Acquisition Facilities to be constructed by the Company and acquired by the City with Bond Proceeds. a) Construction and Acquisition of City Acquisition Facilities. The Company will complete the plans and specifications for such City Acquisition Facilities herein, the "Plans and Specifications"). The Plans and Specifications shall include the City's standard specifications and the Plans and Specifications and bid documents shall be subject to the City approval, which shall not be umeasonably withheld. The City agrees to process any Plans and Specifications and bid documents for approval in a manner consistent with current City policies and procedures. The Company will complete construction of City Acquisition Facilities as required by the City's conditions of approval of the Project or as otherwise mutually agreed between the City and the Company. b) Public Works Requirements. In order to ensure that the City Acquisition Facilities to be constructed by the Company and acquired with Bond Proceeds will be constructed as if they had been constructed under the direction and supervision, or under the authority of, the City, so that they may be acquired by the City pursuant to Government Code Section 53313.5, the Company shall comply with all of the following requirements: i) The City and the Company agree that the City Acquisition Facilities are of local, and not state-wide concern, and that the provisions of the California Public Contract Code shall not apply to the construction of the City Acquisition Facilities. The City and the Company agree that the Company shall award all contracts for the construction of the City Acquisition Facilities, and that this Agreement is necessary to assure the timely and satisfactory completion of the City Acquisition Facilities and that compliance with the Public Contract Code with respect to the City Acquisition Facilities would work an incongruity and would not produce an advantage to the City or the District. Notwithstanding the foregoing, the Company shall award all contracts for construction of the City Acquisition Facilities as set forth in this Agreement. The Company shall establish a list of written criteria acceptable to the City Engineer (including experience, ability to perform on schedule and financial ability) to determine qualified general contractors for the construction of the City Acquisition Facilities. Such general contractors shall provide reasonable opportunity for 6- c. I local contractors to participate as subcontractors. Formal bids need be requested from only those entities on the list of qualified contractors; and if no such list is established for any specific City Acquisition Facility, the Company shall solicit at least three bids for such City Acquisition Facility by means of an informal bidding process acceptable to the City Engineer. Notwithstanding the foregoing, bids for each City Acquisition Facility shall be submitted in sealed envelopes to the City Engineer prior to the time and date prescribed for bid opening. The City Engineer shaIl open the bids and read them aloud immediately following the submittal deadline. Upon written request of the City Engineer, the Company shall provide an analysis of bids for construction of the City Acquisition Facilities to be constructed under the supervision of the Company. ii) The contract or contracts for the construction of such City Acquisition Facilities shall be awarded to the responsible bidder(s) submitting the lowest responsive bid(s) for the construction of such City Acquisition Facilities as certified by the Company to the City and the School District. Any determination to award a contract other than to the apparent lowest bidder shall be subject to review and approval of the City Engineer. iii) The Company shall require, and the specifications and bid and contract documents shaIl require all such Contractors to pay prevailing wages and to otherwise comply with applicable provisions of the State law relating to public works projects to the extent applicable to a non-governmental entity constructing infrastructure to be acquired by a public entity. iv) Contractors shall be required to furnish labor and material payment bonds and contract performance bonds in an amount equal to 100 percent of the contract price naming the Company and the City as obligees and issued by insurance or surety companies approved by the City. All such bonds shall be in a form approved by the City. Rather than requiring its contractors to provide such bonds, the Company may elect to provide the same for the benefit of its contractors. v) All such contractors shall be required to provide proof of insurance coverage in scope and amount acceptable to the City's Risk Manager throughout the term of the construction of such City Acquisition Facilities which they will construct in conformance with the approved Plans and Specifications. I vi) In accordance with this Section 5(b), the Company shall be deemed the awarding body and shall be solely responsible for compliance and enforcement of the provisions of the State Labor Code and Government Code to the extent expressly applicable to a non-governmental entity constructing infrastructure to be acquired by a public entity. c) Inspection; Completion of Construction. The City shall have primary responsibility for providing inspection of the construction of the City Acquisition Facilities constructed by the Company to ensure that the construction is accomplished in 7- accordance with the Plans and Specifications. The City's personnel and consultants shall have access to the site of the work at all reasonable times for the purpose of accomplishing such inspection. Upon Substantial Completion (as defined below) of the construction of such City Acquisition Facilities by Company, the Company shall notify the City in writing that the construction of such City Acquisition Facilities has been Substantially Completed. For purposes of this Agreement, the term "Substantially Complete" or "Substantial Completion" with respect to a City Acquisition Facility means that such City Acquisition Facility is substantially complete in accordance with its Plans and Specifications and is available for use by the public for its intended purpose, notwithstanding any final "punch list" items stilI required to be completed, unless such items are required for the safe operation of such City Acquisition Facility, and shall be based upon approval of the City's inspectors, which shall not be unreasonably withheld. Upon receiving such written notification from the Company, and upon receipt of written notification from its inspectors that construction of any of the City Acquisition Facilities by Company has been Substantially Completed, the City shall within 15 days of such notification from its inspectors notify the Company in writing that the construction of such City Acquisition Facilities has been satisfactorily completed, or if not satisfactorily completed, provide a punch list of items required to be satisfactorily completed. Upon receiving notification of satisfactory completion (including any and all punch list items), the Company shall forthwith file with the County Recorder of the County of Orange a Notice of Completion pursuant to the provisions of Section 3093 of the Civil Code. The Company shall furnish to the City a duplicate copy of each such Notice of Completion showing thereon the date of filing with the County Recorder. Any actual costs incurred by the City in inspecting and approving the construction of any City Acquisition Facilities by Company (including the cost of the consultants engaged by the City in connection with such inspection and/ or for any cost review referenced in the next paragraph) shall be paid by the Company when and as due but in any event prior to the City's acceptance of and payment for the City Acquisition Facility, subject to reimbursement to the Company as part of the Actual Cost of the City Acquisition Facility, without interest, from the City Facilities Account of the Acquisition and Construction Fund if funds are available therefore. d) Liens. Upon the expiration of the time for the recording of claim of liens as prescribed by Sections 3115 and 3116 of the Civil Code, the Company shall provide to the City such evidence or proof as the City shall require that all persons, firms and corporations supplying work, labor, materials, supplies and equipment on behalf of Company for the construction of any City Acquisition Facilities have been paid, and that no claims of liens have been recorded by or on behalf of any such person, firm or corporation. Rather than await the expiration of the said time for the recording of claims of liens, the Company may elect to provide to the City a title insurance policy or other security acceptable to the City guaranteeing that no such claims of liens will be recorded or become a lien upon the Property. In any event, no property to be conveyed to the City in connection with any City Acquisition Facilities shaII be subject to the levy of any special taxes by the District, or subject to any other lien or encumbrance unless such liens or encumbrances are reasonably detennined by the City to not interfere with the actual or intended use of the land or interest therein, or subject to the City to any 8- I monetary obligations, and the Company shall discharge any such lien or encumbrance prior to the use of funds in the City Facilities Account to pay for any such City Acquisition Facility. If the land underlying the City Acquisition Facility is within the boundaries of any existing community facilities district, the Company shall be deemed to have satisfied the foregoing sentence about discharging such lien if the land, while owned by a governmental agency, is not taxable property or is identified in the rate and method of apportionment as being exempt from the special tax to be levied by the community facilities district and the Company provides written confirmation to the City from the community facilities district administrator and/ or special tax consultant that the land is non-taxable or that the exemption will apply to the land upon acquisition thereof by the City. If the land is so identified and confirmed as being non-taxable or exempt, the Company shall not be required to make any payments, cancel the special taxes, Or otherwise record any notices of cessation, cancellation, or termination with respect to such community facilities district, and the lien of the special tax shall be a permitted exception to title to such land. e) Acquisition, Acquisition Price; Source of Funds. Provided the Company has complied with the requirements of this Agreement, the City agrees to acquire the City Acquisition Facilities from the Company. Notwithstanding the above, nothing herein shall be construed as requiring Company to construct and deliver any City Acquisition Facility to the extent it is not already obligated to do the same under the entitlements and other legal conditions to the development of land in the District, or to the extent that the Bond Proceeds deposited to the City Facilities Account are not in excess of the amount of the City Capital Contribution and the City Fee Facilities Amount. The price to be paid by the District for the acquisition of such City Acquisition Facilities by the City (the" Acquisition Price") shall be the lesser of (i) the value of the City Acquisition Facilities, determined as provided below, (ii) the total of the Actual Costs of the City Acquisition Facilities (as such term is defined below) or (iii) the moneys available for such purpose in the City Facilities Account (after the withdrawal of the City Capital Contribution and the City Fee Facilities Amount). The Company shall transfer ownership of the City Acquisition Facilities to the City by grant deed, bill of sale or such other documentation as the City may require. Upon the transfer of ownership of the City Acquisition Facilities or any portion thereof from the Company to the City and expiration of any maintenance period required by the City, the City shall be responsible for the maintenance of the City Acquisition Facilities or the portion transferred. I The Company shall submit to the City, prior to any payment in respect of any City Acquisition Facility, evidence of the Actual Costs thereof. If the City Engineer reasonably determines (in a written letter to the Company) that the Actual Cost is excessive and that the value of the City Acquisition Facilities is less than the total amount of such Actual Costs, the Acquisition Price to be paid by the District for the acquisition of the City Acquisition Facilities shall be the value thereof as reasonably determined by the City Engineer or a consultant engaged by the City for such purpose. To the extent funds are available therein, the Acquisition Price of any City Acquisition Facilities may be determined and paid out of the City Facilities Account of the Acquisition and Construction Fund upon transfer of ownership of the City 9. Acquisition Facilities to the City upon a determination of satisfactory completion of such City Acquisition Fadlity, after deduction for any City consultant costs incurred in connection with this Agreement not theretofore paid by the Company. Company shall submit a payment request in the form of Exhibit "C" to the City which upon approval by the City, which approval shall not be unreasonably withheld, shall be submitted to the District. Notwithstanding the preceding provisions of this section, the sole source of funds for the acquisition by the City of the City Acquisition Facilities or any portion thereof shall be the Bond Proceeds made available by the District (after the withdrawal of the City Capital Contribution and the City Fee Facilities Amount). If for any reason beyond the City's control, the proceedings for the formation of the District are not completed, the Bonds are not sold, or the amount of Bond Proceeds deposited to the City Facilities Account are not in excess of 546,548, the City shall not be required to pay any costs of any City Acquisition Facilities to the Company. In such event, the Company shall complete the design and construction and offer to the City ownership of such portions of City Acquisition Facilities as are required to be constructed by the Company as a condition to recordation of subdivision maps for the Property, land use entitlements, or any other agreement between Company and the City, but need not construct any portion of the City Acquisition Facilities which it is not so required to construct. For purposes of this Agreement, the term" Actual Costs" shall mean with respect to a City Acquisition Facility: (i) the reasonable actual hard construction costs including labor, materials and equipment costs, (ii) the costs incurred in design, engineering and preparation of plans and specifications, (iii) the fees paid to consultants and government agencies in connection with and for obtaining permits, licenses or other required governmental approvals, and as described in the last sentence of Section 2 above, (iv) construction management fee up to 5% of the costs described in clause (i) above, (v) professional costs such as engineering. legal, accounting. inspection, construction staking, materials testing and similar professional services, vi) costs of payment, performance of maintenance bonds, and insurance costs (including the costs of any title insurance), and (vii) the value of any real property or interests therein that are required to be conveyed with such City Acquisition Facility in an amount equal to the fair market value of such real property or interests therein. Expenses that shall not be included in the Actual Costs of a City Acquisition Facility to be acquired are (i) interest during or after construction, (ii) any costs related to private improvements, (iii) profit of the Company, and (iv) any amounts paid in respect of the City Acquisition Facilities from or by any other governmental agency or community facilities district. 6. Allocation of Special Taxes. Upon sale and delivery of the Bonds, or such earlier date as the District, in its sole discretion, determines appropriate, the Board of Education, as the legislative body of the District, shall annually levy a special tax as provided for in the formation proceedings of the District. The entire amount of any special tax levied by the District to repay the Bonds, or to fund other obligations, shall be allocated to the District. 7. Indemnification. The Company shall assume the defense of, indemnify and save harmless, the City, and its respective officers and employees, and each and everyone of them, from and against all actions, damages, claims, losses or expenses of every type and description to which they may be subjected or put, by reason of, or resulting from this Agreement or any act 10- I I or omission of the Company with respect to this Agreement; provided, however, that the Company shall not be required to indemnify any person or entity as to damages resulting from negligence or willful misconduct of such person or entity or their officers or employees, nor shall the Company be required to indemnify any person or entity for the enforcement of this Agreement against the City. The Company shall assume the defense of, indemnify and save harmless, School District and the District, their respective officers and employees, and each and everyone 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 the Company with respect to this Agreement; provided, however, that the Company shall not be required to indemnify any person or entity as to damages resulting from gross negligence or willful misconduct of such person or entity or their officers or employees, nor shall the Company be required to indemnify any person or entity for the enforcement of this Agreement against the School District, the District or any indemnified party. 8. Amendment. This Agreement may be amended at any time but only in writing signed by each party hereto. 9. Entire Agreement; No Change to MOU. This Agreement contains the entire agreement between the parties with respect to the matters provided for herein and supersedes all prior agreements and negotiations between the parties with respect to the subject matter of this Agreement. The School District and the Company explicitly agree that nothing in this Agreement shall in any way change the terms of the Memorandum of Understanding dated as of November 18, 2004, by and between the Company and the School District. 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: School District/District:Orange Unified School District 1401 North Hardy Street Orange, California 92867 Attention: Assistant Superintendent of Business Services City of Orange:City of Orange 300 E. Chapman Ave. Orange, CA 92866 Attention: City Manager Company:Serrano Heights East, LLC cia SunCal Companies 2392 Morse A venue 11- r---- Irvine, California 92614 Attention: Ron Freeman Each party may change its address for delivery of notice by delivering written notice of such change of address to the other parties hereto. 11. reference. Exhibits. All exhibits attached hereto are incorporated into this Agreement by 12. Severability. If any non-material 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 arising hereunder shall be governed by and interpreted in accordance with the laws of the State of California. 14. Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other parties hereto, or the failure by a party to exercise its rights upon the default of another party, shall not constitute a waiver of such party's right to insist and demand strict compliance by such other parties with the terms of this Agreement thereafter. 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, the School District, the District and the Company (and their respective successors and assigns), any rights, remedies, obligations or liabilities under or by reason of this Agreement. The Company may not assign any of its rights or obligations under this Agreement without the prior written consent of the City. 16. 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. 17. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute but one instrument. 12- I I IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date. ORANGE UNIFIED SCHOOL DISTRICT By: President of the Board of Education of the Orange Unified School District ATTEST: By: Clerk of the Board of Education of the Orange Unified School District CITY OF ORANGE By: Mark A. Murphy, Mayor ATTEST: By: Mary E. Murply, City Clerk APPROVED AS TO FORM: By: Theodore J. Reynolds, Assistant City Attorney on behalf of David A. DeBerry, City Attorney SERRANO HEIGHTS EAST, LLC, a Delaware limited liability company By: SHD-1400,Inc., a California corporation, its Managing Member 13- 14- By: Name: Title: EXHIBIT A DESCRIPTION OF PROPERTY I The real property to be included within Community Facilities District No. 2005-1 Tremont) of the Orange Unified School District is Lot 1 of Tract Map 16601. I A-I EXHIBIT B DESCRIPTION OF CITY FACILITIES The following improvements are eligible City Facilities: Description of City Acquisition Facilities Amount 9-B Passive Park Construction 1,370,239* Description of City Fee Facilities Sewer Connection Fees Facilities Transportation System Improvement Fee Facilities Police Facility Fee Facilities Fire Facility Fee Facilities 7,275 62,274 34,435 59,364 Water Main Connection Fee Facilities Library Fee Facilities 13,800 19,400 Total City Fee Facilities 196,548 Description of the City Capital Contribution City Capital Contribution - portion of costs for Grijalva Gym/Sports Center 350,000** TOTAL CITY F ACILmES 1,916,787 Only to the extent such facilities have not been paid for by other governmental agencies or community facilities districts. Per Section 4(a)(i), this amount may be requisitioned directly by the City and is to be the first amount disbursed from the City Facilities Account or otherwise reserved in such account for disbursement. B-1 I I EXHIBIT C DISBURSEMENT REQUEST FORM COMMUNITY FACILITIES DISTRICT NO. 2005-1 (TREMONT) OF THE ORANGE UNIFIED SCHOOL DISTRICT The undersigned, a duly authorized representative of Serrano Heights East, LLC (the Company"), hereby certifies to the Orange Unified School District Community Facilities District No. 2005-1 (Tremont) ("CFD No. 2005-1"), for purposes of requesting payment to the Company, as Payee, for the acquisition by the City of Orange ("City") of the City Acquisition Facilities described below, and acceptance thereof by the City, the sum set forth below. With respect to City Acquisition Facilities: 1) The City Acquisition Facilities described in detail on Attachment A hereto have been duly and properly constructed. 2) A breakdown and a total of the cost which have been incurred by the Company in constructing such City Acquisition Facilities, including construction contracts and purchase orders is attached hereto as Attachment B. 3) To the extent that this payment request is with respect to a completed City Acquisition Facility, the Company has submitted or submits herewith to the City as- built drawings or similar plans and specifications for the items to be paid for as listed in the exhibit hereto with respect to any such City Acquisition Facility, and such drawings or plans and specifications, as applicable, are true, correct and complete. 4) There has been compliance with applicable laws relating to prevailing wages for the work to construct the City Acquisition Facility for which payment is requested. 5) The Company is in compliance with the terms and provisions of the Joint Community Facilities Agreement among the Orange Unified School District, the City, and the Company dated as of the . 2005 (the" Agreement"), the amount set forth above is authorized, due and payable pursuant to the terms of the Agreement and no portion of the amount being requested to be paid has formed the basis of a prior request for payment or was previously paid or has otherwise been paid by any other governmental entity or community facilities district. 6) I hereby agree to furnish such additional back up verification with respect to the costs and expenses incurred by the Company as the City shall request. Furthermore, I agree to furnish all documentation evidencing transfer of ownership of the City Acquisition Facilities described above as requested by the City. 7) The Company acknowledges that satisfactory evidence of Actual Costs must be submitted to the City and that no payment will be made for any City Acquisition Facility until all Actual Cost., have been audited by the City and its consultants. C-l Capitalized terms not defined herein shall have the meaning set forth in the Agreement. Date: SERRANO HEIGHTS EAST, LLC, a Delaware limited liability company By: SHD-1400, Inc., a California corporation, its Managing Member By: Name: Title: I, an authorized representative of the City, hereby certify that, pursuant to the request of the Company, this Requisition For Payment has been reviewed, all documentation requested by the City regarding transfer of ownership of the City Acquisition Facilities described in this Requisition For Payment has been reviewed and approved, and the payment requested herein has been approved by the City. CITY OF ORANGE By: Its: City Engineer C-2 EXHIBIT D I DESCRIPTION OF SCHOOL FACILITIES FINANCED COMMUNITY FACILITIES DISTRIcr NO. 2005-1 (TREMONT) OF THE ORANGE UNIFIED SCHOOL DISTRIcr I I I The following School Facilities will be financed by the proceeds of tpe Bonds: 1. Serrano Heights 9B Sports Park 1,$0,000 I Total I 3~12,569 2. School District Capital and Impact Fees I D-1