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HomeMy WebLinkAboutATTACHMENT 4 JOINT COMMUNITY FACILITIES AGREEMENTATTACHMENT 4 JOINT COMMUNITY FACILITIES AGREEMENT JOINT COMMUNITY FACILITIES AGREEMENT BY AND AMONG TUSTIN UNIFIED SCHOOL DISTRICT, COMMUNITY FACILITIES DISTRICT NO. 2014-1 OF THE CITY OF TUSTIN, STANDARD PACIFIC CORP. i'Wl �7 CITY OF TUSTIN JOINT COMMUNITY FACILITIES AGREEMENT This JOINT COMMUNITY FACILITIES AGREEMENT ("TUSD/JCFA") is entered into effective as of the 241h day of August, 2015, by and among Tustin Unified School District, a California school district ("TUSD"), Community Facilities District No. 2014-1 of the City of Tustin, organized and existing pursuant to the Mello -Roos Community Facilities Act of 1982, as amended (respectively, "CFD No. 2014-1" and the "Act"), Standard Pacific Corp., a Delaware corporation ("SPC"), and City of Tustin, a municipal corporation existing pursuant to the laws of the State of California ("City"), and relates to the funding by CFD No. 2014-1 of certain facilities to be owned and operated by TUSD from proceeds of "Special Taxes," "Bonds," of CFD No. 2014-1 to the extent and as herein provided "Contractual Mitigation Payments" and "CFD/COC Deposits." RECITALS: A. The property described and depicted in Exhibit "A" hereto ("SPC Property") is located in the City, County of Orange, State of California ("State") and is within the boundaries of CFD No. 2014-1 and TUSD. B. City was designated as the "Local Redevelopment Authority" for the MCAS - Tustin property of which the SPC Property is a portion which has been sold and transferred by City to SPC pursuant to that certain Tustin Legacy Disposition and Development Agreement for Disposition Parcels 113 and 6A ("SPC/DDA") resulting in the inclusion of the SPC Property in CFD No. 2014-1 to fund public facilities including the School Facilities Project (hereinafter defined) for TUSD. C. In conjunction with the development of the 375 dwelling units (each, a "Dwelling Unit") as shown on Exhibit "B" ("Project") and the issuance of building permits for the construction of Dwelling Units within the Project, SPC agrees to pay to TUSD, as herein provided, Contractual Mitigation Payments for "Certificates of Compliance" from TUSD to permit the City to issue building permits for development of the Project. Prior to issuance of the herein described Bonds by CFD No. 2014-1, City agrees to advance for CFD No. 2014-1 the applicable CFD/COC Deposits. The advance of the CFD/COC Deposits relates to the deferred issuance of Bonds by CFD No. 2014-1 to fund the TUSD School Facilities, and is subject to reimbursement by CFD No. 2014-1 from the herein described proceeds of the Bonds. The proceeds of the Bonds, if and when issued, shall be deposited with the Trustee of CFD No. 2014- 1 described in the "Indenture" pursuant to which the Bonds are issued. The foregoing notwithstanding, TUSD agrees that such CFD/COC Deposits by City as to the Project may be deferred until the earlier of ten (10) calendar days after the issuance of the Bonds by CFD No. 2014-1 or May 1, 2016. When such Bonds are issued by CFD No. 2014-1, SPC shall be entitled, to future Certificates of Compliance for the Project upon payment of the herein described Contractual Mitigation Payments, and if applicable, Supplemental Dwelling Payments, hereinafter described. CFD No. 2014-1 pursuant hereto agrees to take all actions reasonably necessary to sell and issue Bonds of CFD No. 2014-1 on or before March 1, 2016, if practicable, to fund pursuant hereto the CFD/COC Deposits for the Project in the net amount shown on Exhibit "C" hereto. On such date if the net proceeds described herein have not been deposited BAW&0/178931.21 18047 B I FINAL 08-20-15 with the Trustee designated in the Indenture pursuant to which such Bonds have been or are to be issued by CFD No. 2014-1, City shall on or before close of the business day on May 1, 2016, pay to TUSD, the applicable deferred CFD/COC Deposits for Certificates of Compliance issued by TUSD for which CFD/COC Deposits have not been received and as applicable CFD/COC Deposits for any future Certificates of Compliance for the Project pending future issuance of the Bonds by CFD No. 2014-1 as herein described. Should such sale of Bonds, as herein described, not occur, CFD No. 2014-1 shall have no liability other than the herein -described CFD/COC Deposits as set forth in Section 2.2 of this TUSD/JCFA. D. In addition to the "School Facilities Project" described in Exhibit "C," certain "City Facilities" to be owned and operated by City also are to be funded from Bond Proceeds of CFD No. 2014-1 as described in the formation proceedings of CFD No. 2014-1. E. The City, acting as the legislative body of CFD No. 2014-1, has approved and authorized execution of this TUSD/JCFA pursuant to the Act. The Board of Education of TUSD ("TUSD Board") has approved and authorized execution of this TUSD/JCFA pursuant to the provisions of the Act. Also, the authorized party has executed this TUSD/JCFA on behalf of SPC. F. This TUSD/JCFA constitutes a joint community facilities agreement, within the meaning of Section 53316.2 of the Act, by and among TUSD, CFD No. 2014-1, SPC, and City pursuant to which CFD No. 2014-1 is authorized to finance, in part, the School Facilities Project, as described in Exhibit "C" hereto. As authorized by Section 53316.6 of the Act, TUSD shall have responsibility for constructing, providing for and operating the School Facilities Project. G. City, CFD No. 2014-1 and TUSD find and determine that the construction and/or acquisition of the School Facilities Project will be beneficial to the interests of the persons residing within the boundaries of CFD No. 2014-1. AGREEMENT NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein and the concurrent execution by TUSD, City and other named parties of that certain agreement entitled, "School Facilities Implementation, Funding and Mitigation Agreement Between Tustin Unified School District, Community Facilities District No. 06-1 of Tustin Unified School District, the City of Tustin and Community Facilities District No. 2014-1 of the City of Tustin" ("I/M Agreement") on file at the District office of TUSD located at 300 South C Street, Tustin, California and by this reference herein incorporated, the parties hereto agree that the foregoing Recitals are herein incorporated and further agree as follows: ARTICLE I DEFINITIONS Section 1.1. Definitions. Unless the context clearly otherwise requires, the terms defined in this Section shall, for all purposes of this Agreement, have the meanings herein specified. 2 BAW&G/178931.21 18047 B 1 FINAL 08-20-15 (a) "Act" means 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. (b) "Bond Proceeds" shall mean the net proceeds received by CFD No. 2014 - from the sale of Bonds. (c) "Bond Resolution" means that Resolution, Resolution Supplement, Fiscal Agent Agreement, Indenture of Trust or other equivalent document(s) providing for the issuance of the Bonds. (d) "Bonds" shall mean those bonds, or other securities, issued by CFD No. 2014-1 in one or more series, as authorized by the qualified electors within the CFD. (e) "Certificate of Compliance" means a certificate in the form attached hereto as Exhibit "E" to be executed by TUSD and delivered to SPC upon payment of the Contractual Mitigation Payment for each Dwelling Unit, subject to the terms of this TUSD/JCFA. (f) "Contractual Mitigation Payment" means the contractual obligation of the owner of the SPC Property, as set forth herein, to be paid to TUSD prior to the issuance of a Certificate of Compliance. (g) "I/M Agreement" means the "School Facilities Implementation, Funding and Mitigation Agreement Between Tustin Unified School District, Community Facilities District No. 06-1 of Tustin Unified School District, the City of Tustin and Community Facilities District No. 2014-1 of the City of Tustin. (h) "Index" means the greater of Marshall & Swift Class B Construction - Western Region Index or two percent (2%) from a base date of July 1, 2014, and increasing annually thereafter beginning on July 1, 2015. (i) "Rate and Method" means the Rate and Method of Apportionment of the Special Tax authorizing the levy and collection of special taxes pursuant to proceedings by City for the formation of CFD No. 2014-1 pursuant to the Act on file at the City Hall of City and herein incorporated. 0) "School Facilities Project" means those school facilities described on Exhibit "C" hereto, to be owned, operated or maintained by TUSD. (k) "CFD/COC Deposit" means any amount to be advanced or paid by City on behalf of CFD No. 2014-1 to TUSD in the event the sale and issuance of the Bonds does not occur on or before May 1, 2016, and in such event in the amount shown on Exhibit "C" which are eligible, to the extent provided in this TUSD/JCFA, for reimbursement from Bonds Proceeds. In the event the I/M Agreement is not executed by the Parties thereto on or before October 31, 2015, this TUSD/JCFA shall terminate. BAW&G/178931.21 18047 B 1 FINAL 08-20-I5 (1) "Special Taxes" means the special taxes authorized to be levied and collected by CFD No. 2014-1 pursuant to the Rate and Method. (m) "State" means the State of California. ARTICLE II AGREEMENTS REGARDING CFD NO. 2014-1 BOND PROCEEDS Section 2.1. CFD No. 2014-1. City, as described herein, has established CFD No. 2014-1. City engaged such consultants as it deemed necessary or appropriate to establish CFD No. 2014-1. TUSD has no responsibility for any costs incurred by City in connection with the establishment of the CFD No. 2014-1. Section 2.2. Sale of Bonds and Use of Proceeds. It is anticipated that CFD No. 2014-1 will issue Bonds to finance the acquisition, construction, and installation of a portion of the School Facilities Project described on Exhibit "C" and City Facilities as provided for in the formation of CFD No. 2014-1. If City, acting as the legislative body of CFD No. 2014-1, in its sole discretion, determines on or before March 1, 2016 that all requirements of State and "Federal" law, all policies of the City as to its community facilities districts have been satisfied or waived and whether, when, and under what conditions and to what extent the Bonds shall be issued to finance the acquisition, construction and installation of the School Facilities Project and the City Facilities, or any combination thereof, CFD No. 2014-1 shall issue, consistent with applicable law, the herein -described Bonds. CFD No. 2014-1 makes no representation that, if Bond Proceeds are made available to finance the acquisition other than the payment of the herein -described CFD/COC Deposits, construction and installation of the portion of the School Facilities Project noted on Exhibit "C," or other school facilities in lieu thereof as provided in the I/M Agreement, that such proceeds will be sufficient to finance all of the School Facilities Project. If CFD No. 2014-1 does not issue the Bonds to refund any CFD/COC Deposits to fund in part the acquisition, construction and installation of the School Facilities Project, City shall advance for CFD No. 2014-1 such CFD/COC Deposits to fund the costs of the acquisition, construction, and installation of the School Facilities Project in addition to the Contractual Mitigation Payments to be made by SPC. Section 2.3. Disbursements. Bond Proceeds available for the acquisition, construction of the School Facilities Project and reimbursement to City of the CFD/COC Deposits in the amount specified on Exhibit "C" shall be deposited with the corporate trustee ("Trustee") for CFD No. 2014-1 in the "TUSD Improvement Account" of the "Improvement Fund" all as provided in the "Indenture" or "Bond Resolution" pursuant to which Bonds are issued by CFD No. 2014-1. Funds on deposit in the TUSD Improvement Account of the Improvement Fund shall be invested and disbursed, including earnings thereon to TUSD at the request of TUSD pursuant to the terns hereof, the I/M Agreement, and subject to the provisions contained in the Indenture with respect to investments of Bond Proceeds. To the extent of the funds in the TUSD Improvement Account, the CFD No. 2014-1 shall cause disbursements to be made from the TUSD Improvement Account of the Improvement 4 BAW&G/178931.21 18047 B i FINAL 08-20-15 Fund as requested by TUSD from time to time upon submission of a disbursement request in substantially the same form attached hereto as Exhibit "D" ("Disbursement Request"), which shall include the TUSD verifications and certifications as shown on Exhibit "D." CFD No. 2014-1 shall process in a timely manner Disbursement Requests received from TUSD that conform to the requirements hereof. All disbursements from the TUSD Improvement Account of the Improvement Fund shall be used by TUSD as provided in the I/M Agreement executed concurrent herewith and on file at the District office of TUSD. All Parties hereto hereby acknowledge that the obligation of TUSD to construct the School Facilities Project is contingent on receiving necessary funding therefore from the sources described in the I/M Agreement allocated to TUSD pursuant to Exhibit "C." Section 2.4. Disbursement of Proceeds and Special Taxes. TUSD agrees that prior to submitting a Disbursement Request requesting payment from the CFD No. 2014-1 it shall review and approve all amounts included in its request to pay the costs of the School Facilities Project following receipt of funds from CFD No. 2014-1. In the event that TUSD does not disburse any Bond Proceeds received by it to third parties within five (5) banking days of receipt, it will trace and report to CFD No. 2014-1 all earnings, if any, earned by TUSD, from the date of receipt of such Bond Proceeds by TUSD to the date of expenditure by TUSD for capital costs of the School Facilities Project. Such report shall be delivered at least semiannually until all Bond Proceeds are expended by TUSD. TUSD agrees that in processing the above disbursements it will comply with all legal requirements for the expenditure of Bond Proceeds under the Internal Revenue Code of 1986 and any amendments thereto. Section 2.5. Construction, Ownership and Maintenance of School Facilities Project. TUSD shall be solely responsible for the work relating to the acquisition, construction and installation of the School Facilities Project, and neither SPC, City nor CFD No. 2014-1 shall have any responsibility therefor or liability with respect thereto. The School Facilities Project shall be, and remain, the sole and separate property of TUSD, and shall be operated, maintained and utilized by TUSD. CFD No. 2014-1 shall not have any ownership interest in the School Facilities Project, and CFD No. 2014-1 shall have no responsibility for the operation, maintenance, or utilization of the School Facilities Project or any liability with respect thereto. TUSD may use the CFD/COC Deposits pending issuance of the Bonds for the purposes described in the I/M Agreement. Section 2.6. Tax Matters. In connection with the issuance of any Bonds, the portion of the Bond Proceeds which are made available to finance the acquisition, construction and installation of the School Facilities Project, TUSD agrees to execute and deliver such certifications and agreements as may be reasonably required in order for bond counsel for CFD No. 2014-1 to conclude that interest on such Bonds will be excluded from gross income under Section 103 of the Internal Revenue Code of 1986 and any amendments thereto. Section 2.7. Accounting Records. TUSD agrees to maintain adequate internal controls over its payment function and to maintain accounting records in accordance with generally accepted accounting principles. TUSD will, upon request, provide CFD No. 2014-1 with access to TUSD's records related to the use of Bond Proceeds for the School Facilities Project and will provide to CFD No. 2014-1 its annual financial report, including the Bond Proceeds for purposes BAW&G/178431.21 18047 B 1 FINAL 08-20-15 of assisting CFD No. 2014-1 in calculating the arbitrage rebate obligation of CFD No. 2014-1, if any. CFD No. 2014-1 agrees to maintain full and accurate records of all amounts, and investment earnings, if any, expended from the TUSD Improvement Account of the Improvement Fund. CFD No. 2014-1 will, upon request, provide TUSD with access to CFD No. 2014-1's records including those of the Trustee holding the Bond Proceeds relating to the TUSD Improvement Account of the Improvement Fund. ARTICLE III CERTIFICATES OF COMPLIANCE, MITIGATION OF PROJECT AND SCHOOL FACILITIES PROJECT FUNDING Section 3.1. Certificates of Compliance for Project. (a) SPC shall pay to TUSD a Contractual Mitigation Payment prior to issuance of a Certificate of Compliance for a building permit for a Dwelling Unit or any Commercial/Industrial Development in the Project as set forth on Exhibit `B" notwithstanding the issuance of Bonds in the amount of the Net Facilities Obligation as set forth under Exhibit "C." The Contractual Mitigation Payment shall be in the amount authorized by Education Code Section 17620 and Government Code Section 65995. The Contractual Mitigation Payment as of the date of this TUSD/JCFA is $3.36 per square foot of Assessable Space of each Dwelling Unit (other than the Senior Units) and $0.54 per square foot of Assessable Space for Senior Units and for all "Covered and Enclosed" square footage of Commercial/Industrial Development in the Project. TUSD shall collect such Contractual Mitigation Payments, but not in excess of such amounts (as increased every other year, commencing 2016 by the State Allocation Board and effective to SPC on July 1 of the applicable year), notwithstanding any change in State law, the repeal of Education Code Section 17620 or Government Code Section 65995. Should such repeal or change in State law occur, the Contractual Mitigation Payment shall be increased pursuant to the Marshall & Swift Class B Construction -Western Region index. TUSD shall execute and deliver a Certificate of Compliance promptly following its receipt of the Contractual Mitigation Payment and the herein provided CFD/COC Deposits, if applicable, for each Dwelling Unit. This contractual obligation applies with respect to Certificates of Compliance for the original improvements constructed by SPC or initial merchant builders of the SPC Property, and shall not preclude any statutory school fees as to building permits for additional construction, reconstruction, nor for new construction undertaken on a previously improved lot following its first sale by the SPC or a merchant builder to an end user. All such additional construction, reconstruction or new construction shall be subject to any Statutory School Fees or Alternative School Fees authorized by applicable law. (b) When Bond Proceeds in the amount not less than the net amount shown on Exhibit "C" are transferred to the TUSD Improvement Account of the Improvement Fund provided herein, SPC shall receive, to the extent of such funds, a "Bulk Certificate" for up to 375 Dwelling Units to cover the Supplemental DU Mitigation Payment obligation set forth in Exhibit "C," reduced by the amount of CFD/COC Deposits refunded to City in the form attached as Exhibit "F." The purpose of this TUSD/JCFA is to provide for payment by SPC of the 6 BAW&G/178931.21 18047 B I FINAL 08-20-15 Contractual Mitigation Payments, as herein provided, deposit of the CFD/COC Deposits by City with TUSD prior to issuance of the herein described Bonds, and reimbursement of such CFD/COC Deposits to the extent herein provided and for the issuance of the described Certificate of Compliance in the form set forth as Exhibit "E." Dwelling Units in excess of 375 shall pay the applicable Contractual Mitigation Payment and a "Supplemental DU Mitigation Payment" in the amount described in Exhibit "C" for the CFD/COC Deposit but which is not subject to refund from proceeds of the Bonds. Section 3.2. Mitigation of Project. Pursuant to the foregoing but subject to performance by SPC, City and CFD No. 2014-1 of all provisions of this TUSD/JCFA, TUSD agrees that the impacts of the Project on TUSD are mitigated, and TUSD shall not under any circumstances: (a) Exercise any power or authority under current or future law to levy or impose by school fee, condition, exaction or other requirement (other than Special Taxes of CFD No. 2014-1 or Contractual Mitigation Payments authorized pursuant to this TUSD/JCFA) in any way relating to the use, occupancy or development of the Project, exclusive of property taxes for general obligation bonds of TUSD, special taxes or assessments established on a TUSD-wide basis that relate to operating, maintaining or modernizing school facilities, or providing educational programs; (b) Require, request or cooperate with the City or any other governmental entity to exercise any power or authority as to the Project to levy or impose an exaction of land, goods, money or services, whether denominated a fee, charge, dedication or tax for TUSD's benefit; or (c) Oppose the development of the Project or any governmental approval, whether legislative or administrative, or change in any governmental approval on any basis whatsoever; Section 3.3. School Facilities Project Funding. The Contractual Mitigation Payments of SPC provided for herein and proceeds of Bonds of CFD No. 2014-1 are only a portion of the funding for the herein described School Facilities Project the completion of all of which are also contingent upon the City and TUSD entering into the proposed I/M Agreement for the funding of all of the School Facilities Project described in Exhibit "C" hereto. The students resulting from the development of the Project will have the right to attend the School Facilities Project to the extent provided by Government Code Section 53312.7. ARTICLE IV MISCELLANEOUS Section 4.1. Indemnification. (a) Indemnification by CFD No. 2014-1. CFD No. 2014-1 shall assume the defense of, indemnify and save harmless, TUSD and SPC and their respective officers, employees and agents, and each and every one of them, from and against all actions, damages, 7 BAW&G/178931.21 18047 B I FINAL 08-20-15 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 CFD No. 2014-1 with respect to this TUSD/JCFA; provided, however, that CFD No. 2014-1 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, agents or employees. (b) Indemnification by TUSD. TUSD shall assume the defense of, indemnify and save harmless, CFD No. 2014-1 City and SPC 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 TUSD with respect to this TUSD/JCFA, the construction of the School Facilities Project, and the issuance of the Bonds by CFD No. 2014-1, TUSD 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, agents or employees. (c) Indemnification by SPC. SPC shall assume the defense of, indemnify and save harmless, CFD No. 2014-1, as well as City and TUSD, 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 SPC with respect to any breach of this TUSD/JCFA by SPC. SPC 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, agents or employees. (d) Indemnification by City. City shall assume the defense of, indemnify and save harmless, CFD No. 2014-1, as well as SPC and TUSD, 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 City with respect to any breach of this TUSD/JCFA by City. City 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, agents or employees. Section 4.2. Nature of Agreement; Allocation of Special Taxes. This TUSD/JCFA shall constitute a joint community facilities agreement entered into pursuant to Sections 53316.2, 53316.4 and 53316.6 of the Act. The portion of the proceeds of the Special Taxes collected with respect to CFD No. 2014-1 proportional to the portion of the Bond Proceeds for TUSD to the total net Bond Proceeds shall be allocated and distributed to TUSD, as herein provided, to the extent not required for debt service of the Bonds or reasonable costs of administration of CFD No. 2014-1 as described in the Rate and Method. Section 4.3. Amendment and Assignment. This TUSD/JCFA may be amended at any time but only in writing signed by each party hereto. This TUSD/JCFA may be assigned, in whole or in part, by SPC to the purchaser of any parcel of land within the SPC Property; provided, however, such assignment shall not be effective unless and until CFD No. 2014-1, City and TUSD have been notified, in writing, of such assignment. BA W&G/ 178931.21 18047 B 1 FINAL 08-20-15 Section 4.4. Entire Agreement. This TUSD/JCFA 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. Section 4.5. 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, sent via overnight mail, or seventy-two (72) hours following deposit of the same in any United States Post Office in California, registered or certified, postage prepaid, addressed as follows: TUSD: Tustin Unified School District 300 South C Street Tustin, California 92780 Attn: Chief Financial Officer Phone: (714) 730-7301 Ext. 51302 CFD No. 2014-1 of City: City of Tustin 300 Centennial Way Tustin, California 92780 Attn: City Manager Phone: (714) 573-3000 SPC: Standard Pacific Corp. c/o Standard Pacific Homes, Southern California Coastal 15360 Barranca Parkway Irvine, California 92618 Attn: Michael C. Battaglia, Vice President Project Development Phone: (949) 789-1752 City: City of Tustin 300 Centennial Way Tustin, California 92780 Attn- City Manager Phone: (714) 573-3000 Each party may change its address for delivery of notice by delivering written notice of such change of address to the other party hereto. Section 4.6. Exhibits. Agreement by reference. BAW&G1178931.21 18047 B 1 FINAL 08-20-15 All exhibits attached hereto are incorporated into this 9 Section 4.7. Attorneys' Fees. In the event of the bringing of any action, suit or legal proceeding by any Party against any other Party arising out of this TUSD/JCFA, the prevailing Party in whose favor final judgment shall be entered shall be entitled to recover from the losing Party all costs and expenses of such action, suit or legal proceeding, including reasonable attorneys' fees. Section 4.8. 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. Section 4.9. 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. Section 4.10. Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party 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 party with the terms of this Agreement thereafter. Section 4.11. No Third Party Beneficiaries. No person or entity shall be deemed to be a third party beneficiary hereof, and nothing in this Agreement (either expressed or implied) is intended to confer upon any person or entity, other than City, TUSD, CFD No. 2014-1, and SPC (and their respective successors and assigns, exclusive of individual homebuyers), any rights, remedies, obligations or liabilities under or by reason of this Agreement. Section 4.12. 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. Section 4.13. 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. Section 4.14. Recitals. The foregoing Recitals A through G, inclusive, are herein incorporated in this TUSD/JCFA. [Remainder of page intentionally left blank] 10 BAW&G/178931.21 18047 B 1 FINAL 08-20-15 IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year written above. TUSTIN UNIFIED SCHOOL DISTRICT Its: APPROVED AS TO FORM: Bowie, Arneson, Wiles & Giannone, Legal Counsel for Tustin Unified School District By: Wendy H. Wiles COMMUNITY FACILITIES DISTRICT NO. 2014-1 OF THE CITY OF TUSTIN By: Its: CITY OF TUSTIN Its: ATTEST: 11 BAW&G/178931.21 18047 B 1 FINAL 08-20-15 STANDARD PACIFIC CORP., a Delaware Corporation LE S A ELLIOT MANN AUTHORIZED REPRESENTATIVE 12 BAW&G1178931,21 18047 B I FINAL 08-20-15 Sol, 91Is law 0 Nib . s psi alNovi � oi s o oa tiC I � tea°. j oQ0 IF dc z3 �o zo a �u� z, w 0 4 g� o V Of 66 CONI.SULTINGREAL ESTATE APPRAISERS IMISIT $W' I al �% .144 / � � op ]='B]:T "Be' EXHIBIT "C" TUSTIN UNIFIED SCHOOL DISTRICT/CITY OF TUSTIN SCHOOL FACILITIES PROJECT SCHOOL FACILITIES PROJECT & BOND PROCEEDS COMPUTATION FOR TUSD TUSD and City of Tustin ("City") have reached a conceptual agreement as to a School Facilities Implementation, Funding and Mitigation Agreement Between Tustin Unified School District, Community Facilities District No. 06-1 of the Tustin Unified School District , the City of Tustin, and Community Facilities District No. 2014-1 of the City of Tustin ("I/M Agreement") for the remaining portion of the former MCAS -Tustin property (other than the SPC Property) held of record by the City ("City Property"). The School Facilities Project includes the following, provided, however, that if TUSD does not receive the full funding from SPC Contractual Mitigation Payments, the TUSD portion of the Bond Proceeds as provided below and bond proceeds from the CFD to be formed with respect to City Property pursuant to the I/M Agreement, TUSD shall not be required to complete all of the below School Facilities Project, but shall construct that portion of School Facilities Project for which it receives funding from the foregoing sources in the following order of priority: Subject to the provisions of the I/M Agreement, the Heritage School will open for grades K through 5 for the 2016-17 school year. 2. Based on the current development expectations for the Project and the remainder of the City Property, either: (i) Subject to the provisions of the UM Agreement, expand Heritage School to provide facilities for grades K through 8, (ii) Provide capacity other than on City Property as provided in the UM Agreement, or (iii) Construct a middle school within MCAS -Tustin for grades 6 through 8 or other than on City Property, subject to the provisions of the I/M Agreement. 3. Construct the 6-12 School Project within MCAS -Tustin or other than on City Property, subject to the provisions of the I/M Agreement. 4. Net Facilities Obligation (FY 2014/15) of CFD No. 2014-1/SPC - $7,858,391(1)(2) subject to adjustment by Index as noted below. CFD/COC Deposit and Supplemental DU Mitigation Payment of $20,956 per Dwelling Unit, subject to adjustment on July 1, 2016 and annually thereafter until paid by the Index as provided in the I/M Agreement - ($7,858,391 _ 375 DU (1) Represents the estimated net bond proceeds from Mitigation Alternative DIB of April 2014. (2) Subject to increase in accordance with the percentage change in the Index commencing July 1, 2015. C-1 BAW&G/178931.19 18047 B 1 FINAL EXHIBIT "D" DISBURSEMENT REQUEST FORM 1. Community Facilities District No. 2014-1 of the City of Tustin ("CFD No. 2014- 1") is hereby requested to pay from the TUSD Improvement Account of the Improvement Fund established in connection with its Special Tax Bonds to Tustin Unified School District ("TUSD"), as Payee, the sum set forth in 3 below. 2. TUSD certifies that the amount requested hereunder has been, or will be expended or incurred for capital costs related to the construction and completion of the School Facilities Project described in the TUSD/JCFA, on or after . The amount requested is due and payable, and has not formed the basis of prior request or payment. 3. Amount requested: 4. The amount set forth above is authorized and payable pursuant to the term(s) of the TUSD/JCFA dated as of June , 2015. Capitalized terms not defined herein shall have the meaning set forth in the Agreement. TUSTIN UNIFIED SCHOOL DISTRICT By: Name: Title: Date: D-1 BAW&GI178931.19 18047 B 1 FINAL Tusm UNIFIED SCHOOL DISTRICT CERTIFICATE OF COMPLIANCE REGARDING STATUTORY AND ALTERNATIVE SCHOOL FEES ("COC') Education Code Section 17620 and Government Code Section 65995, arseq BUSINESS SERVCIES DEPARTMENT — 300 South C Street, Tustin, CA 92780 — (714) 730-7301 Date: —J_/20_ PermitNo.• Project Appiicant/Owner. Applicant Picone Number: Mailing Address: ProjectAddress: Owner Phone Number. Owner. Owner Address: Tract) acs: Unit(s): Total Square Footage: Parcel Number(s): Project Type: SFDUMFAU RResidential Addition Industrial [Check onej e SFAU e Hotel Commercial Other APPL[CANTDECLARATIOM The persan vacuting this declaration ("Applicent1 haft represents and doctstes. under peaalty ofpeamuy under the laws of Celiforoie, that the following is true and correct: (1) Applicant has toad Ibis application in its caBreti. (2)Appliaeat Is the awna(s) of IS aeting on behetf of the owner(s) of the abovarefaeneed project ("Frgjeet") and is authorized to. by such owner(s), agree to the terms for issuance of this Catific o of Compliance ("COC"k (3) to the best of the Applicant's lmowledge, the information provided above Is trre; (4) the square foot amounts used is the fee calculation below were determined by the building department that will issue a building permit far the herein described construction; and (S) Applicant or owaa(s) of the Po4ect agrees to and sbs0 obtain an amended COC and pay any additional amounts due if there is an increase is the number of dwelling units CDU") or the assessable square foctagc of any DU at an increase in the chargeable covered and enclosed space of the Project as ddamined by the District to be greater than descnW heroin after Applicant has obtahud any COC In lien of indepeodadly vai0ring the squese footage amounts provided by Applicant and In expeditiEtg the issuance of this COC, the District has retied oa the Appliceat's represeowians herein and such reliance Is consideration for the caatmmal obligations of Applicant if the initial determination of the mmdm of units or the square fbetsge is found to be incorrect, Applicant shall be responsible to pay all additional amounts awed within thbW (30) days of notice by the District at other parties and shall pay any costs of the collection thereof including attorneys' fees and legal case. Signattue: _ Print Name: School District Requirements for the Project have been satisfied in Accordance with the Following: (Check One) Level I Level 2 [] Ntipdou AgmtJCFD AgmtJCFD. No.: Q Not subject to fen requirements Note: Number of Square Feet of Residential Spacet M New Construction ] Room Additions (over S00 sq. R) X Fee per sq. fL - $ Total Sq. Ftg. Sub Total Number of Square Fact of Commercial and Industrial Space: X _ Fee per sq. R. - $ Total Sq. Ftg. Sub Total a Total SCHOOL DISTRICT CERIMCATION. The Tustin Unified School District ("District") hereby certifies that the Applicant hes paid the mod smou nt, which was den MbW secording to the h*;metion p=coted by the Appliaum% and that this COC Is ismted to Applicant as a presequssde to the issuance of a building permits) for the Lowws specified above. Receipt Number. ChockNo.: ToWAmount Celleetolt S _— - 40. Date of Issuance Received & Authorized By. DistrictSfgeatare Printed Name & Tito NOTICE OF 90 -DAY PERIOD FOR PROTEST OF FEES: Govern cant Casio sectlaa 66020 requites dial a selroal distriict etavida (1) writomn ttatlee to the Applicant, at the time of of sehaol fees err other exaetiorm[ah-iobvenmumt of the ninety (40) day period m pmatrst the inmpasifian o these tea sad the amount of the FnL ThaetoM this slice shell serve to advise you =thatl!) day protest period in r�rd to sack Fans of due validity thM==9 cammaspxs wish the payment ddm foes or Vrbnnmee of other regmik&wWm es dCode section 660¢0. Additionally, the amount of the fees imposed h as stated hada, whether payable sift time in whole or In part, prier to the issuance of this COC. As in the latter lnsisnce, the ninety (90) day protrst period start as time Date Of issuance. EFFECTIVE PERIOD OF CERTIFICATE OF COMP AANC&r This COC is valid for a period of days from the Date of Issuance. Extensions of up to � will bo granted only for good as determined by the Business Services Dcpatcsatt of time pplliicant may ayp�y for cep to two such Oftalons. Much time as itis COC expires, if a buil peremit has sot been issued for the aonstrtmctlen of mho cotrespoading dwelling trait, the Appl�sat w+� teimbtttsed all aruouats paid, without iataeat. that were p to obtain this COC. Applicant must submit a txquest limn mmahabtttsamment in wdting and suppottbmg docmmumts Foam the applicable City or County to the Business Services Departrnant of tho Disuict This COC sbaU be deemed to boa separate COC for each Lot/DU speetBal above THIS COC EXPUM: THE ABOVE EXPIRATION DATE IS IEXTE14DED TO: 01 02 SIGNATURE VERIFYING AUTHORITY M(TENSIONM. 01 02 EXHIBIT "Ell I—ILAill 1. Residential Fern Fan can be chord on any new square footage within the perimeter of a residential structure, awtuding owporq, walkways, garagm overhatok ratios, enclosed patios„ dataebed accessory sm==, or simitar structures (government Code Section 65995(6)(1)). Fees on roost additions are limited by the restrictions above. Additionally, Seas on room additions eanmot be assessed unless the iacv:we in the assoa to square footage of the residence is more then five hundred (500) square tact. If the room addition creates a net inorease of greater than live hundred (500)"M feet. the fee is charged on the entire net increase in square footage (Education Code Section 17620(a)(1)(a)0)). 2. COMMWJ81finstusaW Fees Govesu meat Code Section 65995(b)M specifies the We of commarcialfimdusWel space that may be chmged. Fes can be charged an covered and enclosed apace within the pew of the ooaomaciaYindnstrisi strawma. not including storege areas incideaml to the cmustrnedon, garages, ptu ft strnatnres, rm molosed waM ways, er utility or disposal area. 3. Emotions From Fees Government Code Section 65995(d) states that the following cannot be charged: (1) stroctthres that are tax exempt and used exclusively for religious purpose; (2) private fiat -time day schools as described in Education Code Sector 48222: and M structures owned and occupied by a pvartmental rrgeaay. Education Coda Section 17626 and Government Code Section 66011 togatuar pmbtbit charging fees on structures replacing those darnagpd or destroyed by a natural dlsasta However. if the flmction, size, or use of the previous am== h changing. then Ile resulting lowcase In fuactim size or cdaage of use impacts school facilities and must be charged a fe to mttigata the impact of this increase or change. 4. SoniormOnly Facilities Although scalar -only facilities are residences, Govaiameot Code Section 69995.1(a) limits tee fees on certain senior -only facilities to that of Fees. Samar hotsfmg affected by limitation is defined in Civil Code Section 51.3, Health and Safety Code Sections ISM(k) and Goveramart Code Section 15432(d)M. Additionally. Govamment Cade Sectim 65995.2 provides that Contmacialihndustrial Fees may only be chard to mobile home pubs whew residency is limited to older persons. S. Cammercial/faduslrM Fees Arcual maws Appeals for Fees aro allowed per Government Code Section 66020 and Educadon Code 17621. The per' appealing to fe, charge, dedication, or other requirement shall bearthe burden of estaldisi log that the foe, charge or dedication ar. other requirement is haproper. SEE PROCEDURE BELOW. NOTICE OF APPEAL. PROCEDURES FOR COMMERCIA ANDUffRL1L FEES Pw asmut to the District's most recant Resolution adopting statutory school fees, the thtlowing summarizes the process adopted for protesting Fees levied for construction pussumjt to Education Code Section 17621(e)(2). 1. Within tat (10) calendar days of paying the CommerclalMdustrW Fea, the patty shall file a written request for a hewing Waft the grounds for opposing the fees paid, by personal delivery or U.& melt. Possible grounds for appeal include, but are not limited to, rho Inaccuracy of lackk tttg the project witch the category of the Commaeialltmdustrial Fes. or that the employee generation or pup generatiwt firctors wilized under the applicable category me inaccurate as applied to the project. The party appealing the imposition ofthe Fees sheli bear ft burden of establishing that die ComatadaWtduatrial Fes are i rFW. 2. Within ten (10) calender days of receipt of the written request for a hemfmg, the Supedate ndeat ofthe District or desighmo shall give aatice in writing of the date, written decision shall be wit � (ten 10) days fbilowiug the haft on ft patty's app�slaU be withfn tiiAy (30) eeteadardays otrersipt of the writtairequest A 3. The" may appeal the Superintendent ce his dosignee's decision to do Board of District The grounds for opposing the written decision and the imposition of the fees shell be included in do request for as appeal to the Boar4 and must also be personally delivered or scat by U.S. mail to the Si n's of&a The possible grounds for that appeal to the Board of the District include, but are not limited to, the hraaanaey including the pmject within the category of the Ores paid, err dist rho oumptoyee gaiaation or pupil generation factors utilized ender the applicable category are inaccurate as applied to the project 4. Within ten (10) Wonder r days of realpt of the written request for a haft befirte the Board of die DWrick the Superintendent of designee shag give notice In writing of the date, preen, and time of the hearing to be conducted at the next regular meeting of the Board, pmvlded that the pai4y is given notice at least Dvo (5) wonting days prior to the regular meeting of the Board. The Board shell reader a written decision within ten (10) working days following the hewing an the patty's appeal and save to decision by ceitifted or registered mail to $tie last known address ofthe party. REFUND POLICY If construction does not commence as provided in Education Code Section 17624 and Government Cede Section 65995, the amount of the fee paid, 0111811112 Fft rf� and nello0 Dollars (850.00) chap punnent to Education Code Section 17620(m), will be ref Luded. An au written mortar Dom the building department tesponsible for les 4 the building permit declaring do die building permit has been camcolled mist be delivered to the Tustin L%MW School District Business Services DepartmeaL Ref ands w01 be processed d ty (30) to sixty (60) days after mcefpt of «otificallon. EXHIBIT "F" BULK CERTIFICATE OF COMPLIANCE COMMUNITY FACILITIES DISTRICT NO. 2014-1 OF THE CITY OF TUSTIN This Bulk Certificate of Compliance for Standard Pacific Corp. (`Bulk Certificate") is issued by the Tustin Unified School District ("District"} on the _ day of , 201_, to certify that receipt by District of proceeds of bonds of Community Facilities District No. 2014-1 of the City of Tustin ("CFD No. 2014-1") shall satisfy the obligation to mitigate impacts on the school facilities of District to the extent of the construction specified within CFD No. 2014-1, with the exception of the payment for the continuing obligation to pay the Contractual Mitigation Payment. This Bulk Certificate is valid only if signed by both District and the authorized representative of Standard Pacific Corp, a Delaware corporation ("Builder"), and the applicable conditions set forth in the TUSD/JCFA, dated August 24, 2015, have been satisfied. This Bulk Certificate is valid only for lots defined as a "Dwelling Unit" within the "SPC Property," as provided in the TUSD/JCFA. Issuance and continued validity of this Bulk Certificate is made subject to agreement by Builder to the terms and conditions stated herein. Builder, Representative/Contact Person: Address: Telephone: Facsimile: Project Name/Planning Area: Tract Map No./Lot Nos.: Initial Number/Type of Constructions Assessable Space: In consideration for issuance of this Bulk Certificate, the Builder acknowledges and agrees as follows: W/ierefore, in consideration for the issuance of this Bulk Certificate, the Builder, acting by and through its authorized representative agrees to the terms and conditions for issuance of this Bulk Certificate as set forth herein. The undersigned, acting in his/her capacity as an officer of the Builder, represents and warrants that he/she is the duly authorized representative of Builder and that he/she is authorized to agree and so bind Builder to the terms and conditions set forth herein. Date: BAW&G/WHW/JWF/1850893 Signature: _ Print Name: Print Title: Notice of 90 -day Period for Protest Pursuant to Section 66020 of the California Government Code and other applicable law, you have a period of ninety (90) days from the date of payment of school fees, mitigation payments or other exactions to protest the validity thereof. This ninety (90) day period commences upon such payment or performance of any other requirement, as provided in Section 66020. Any such protest related to this Bulk Certificate must be in writing and received by the Tustin Unified School District within ninety (90) calendar days of the date signed by Builder. Certification of Tustin Unified School District Tustin Unified School District hereby certifies, by presentation of the original of this Certificate, that receipt by District of the Special Taxes and/or proceeds of the Bonds of CFD 2014-1 has (or shall) satisfy Builder's obligations to District to pay the Supplemental DU Mitigation Payment for construction of the number and type of dwelling units specified above. Date: aaw&c►wH W/JWFn 350893 Signature: Print Name: Print Title: