HomeMy WebLinkAboutATTACHMENT 2 SCHOOL FACILIITES IMPLEMENTAION, FUNDING AND MITIGATION AGREEMENTATTACHMENT 2
SCHOOL FACILITIES IMPLEMENTATION, FUNDING,
AND MITIGATION AGREEMENT
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
This SCHOOL FACILITIES IMPLEMENTATION, FUNDING AND MITIGATION
AGREEMENT (" I/M Agreement") is made and entered into as of this _ day of August, 2015,
between Tustin Unified School District ("TUSD"), Community Facilities District No. 06-1 of
Tustin Unified School District ("CFD No. 06-1"), City of Tustin ("City"), and Community
Facilities District No. 2014-1 of the City of Tustin ("City/CFD"). TUSD, CFD No. 06-1, City
and City/CFD may hereinafter be referred to individually as "Party" and collectively as
"Parties."
RECITALS
A. City is the holder of title of record of the property depicted on Exhibit "A"
("City Property"). The City Property is located in the City and within TUSD. The City Property
presently is zoned for approximately 1,500 "Dwelling Units" and City anticipates possibly 2,835
Dwelling Units ("Potential Project Dwelling Units") being developed on the City Property if and
when entitled therefor ("City Project") as described in Exhibit `B." The Potential Project
Dwelling Units do not include the dwelling units from the "St. Anton Project," the for -sale
"Legacy Villas Project," or the "SPC Project," which are not mitigated by this I/M Agreement
("Excluded Projects").
B. The City Property is on a portion of the Marine Corps Air Station — Tustin
("MCAS -Tustin") which was closed pursuant to the Defense Base Closure and Realignment Act
of 1990, as amended. In 1992, the City was designated by the Office of Economic Adjustment
on behalf of the Secretary of Defense to act as the Local Redevelopment Authority ("LRA"). As
the LRA, the City prepared a reuse plan for MCAS -Tustin. In October 1996, the "City Council"
of City submitted the MCAS Tustin Reuse Plan ("Reuse Plan") to the Department of the Navy.
In 2001 City certified the Joint Final EIS/EIR for the Disposal and Reuse of MCAS Tustin
("Base EIS/EIR") and established the "MCAS Tustin Specific Plan." In 2001 the Department of
the Navy published a Record of Decision ("ROD") approving the Reuse Plan and the Base
EIS/EIR. The Reuse Plan, Base EIS/EIR, the ROD and subsequent agreements entered into by
the City provide for conveyance to TUSD of a ten -acre site and a forty -acre site as shown on
Exhibit "C" (respectively, "Site No. 1" and "Site No. 2").
C. City and TUSD previously entered into that certain agreement entitled,
Agreement Between City of Tustin and Tustin Unified School District Regarding Transfer of
School Sites and Other Mitigation Measures, dated by City, October 21, 1996 ("Base M/Sites
Agreement") and now desire to implement and supersede, as applicable, the provisions thereof,
as to the City Project on the City Property including formation of Community Facilities District
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No. 15-2 of the Tustin Unified School District ("TUSD/CFD"), as provided in the Mello -Roos
Community Facilities Act of 1982, as amended ("Act"), including Government Code Section
53317(f)(4), as contemplated by the Base 1V/Sites Agreement, applicable provisions of the Base
EIS/EIR, ROD and subsequent agreements relating thereto and entered into by City and TUSD.
D. TUSD is responsible for educating and providing facilities for students in
kindergarten through the twelfth grade ("K-12") who reside within TUSD.
E. City has indicated that some of the Dwelling Units of the City Project might
be restricted for ownership and occupancy as Senior Units for seniors as specified by
Government Code Section 65995.1.
F. The City Project will generate additional K-12 school students to be enrolled
in TUSD that cannot be accommodated in the existing school facilities of TUSD.
G. City has conveyed portions of the MCAS -Tustin to other developers which
are not included within the City Property. The students from these other developments will
require additional interim and permanent school facilities. These other developments are not
affected nor mitigated by this UM Agreement.
H. City/CFD, previously was formed by City, and concurrent herewith, City,
City/CFD, SPC and TUSD have executed the Joint Community Financing Agreement
("TUSD/JCFA") pursuant to the Act as set forth on Exhibit "I" herein incorporated, and City and
TUSD have executed concurrently the "Site Conveyance Agreement" set forth on Exhibit "G."
I. TUSD and City further agree that the "School Facilities Project" described in
Exhibit "F" will be needed to serve K-12 school students resulting from the City Project, the
SPC Project and development within CFD No. 06-1, which also is a portion of MCAS -Tustin.
The Parties agree that it is in the mutual best interests of the Parties to enter into this I/M
Agreement for the purpose of funding the School Facilities Project, including funds to be
provided by TUSD/CFD.
J. City intends to convey other portions of the City Property to third parties.
Prior to City conveying portions of the City Property to other parties (hereafter, "City
Assignees"), City shall assign proportionately this I/M Agreement to such City Assignees and
require such City Assignees to assume all executory provisions hereof. As provided in Section
15 below, no such assignment to any City Assignees shall be valid or effective unless and until
the party or parties to whom this I/M Agreement is to be assigned have timely executed and
delivered to TUSD and TUSD/CFD a copy of the Assignment/Assumption Agreement attached
as Exhibit "K" hereto.
K. "Interim Facilities" may be provided, constructed or installed by TUSD,
subject to the terms of this I/M Agreement, at the Veeh Elementary School, Currie Middle
School, the Tustin High School, or other schools of TUSD as determined by TUSD. Any cost
for additional interim, relocatable or other facilities may be funded by TUSD from the "Project
Funds" described in Exhibit "F."
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L. The School Facilities Project, as defined herein, will be funded and
constructed as set forth in this UM Agreement.
M. As to the 6-12 School Project, TUSD may construct additional permanent
school facilities for the 6-12 School Project at locations other than on the City Property if. (i) the
City fails to provide Site No. 2, or an "Alternative Site" on the City Property as provided in the
Site Conveyance Agreement that is reasonably acceptable to TUSD, including delivery of the
Site in a Construction -Ready condition as defined therein; or (ii) the cost of constructing the 6-12
School Project on Site No. 2 or an Alternative Site exceeds the Sources of Funding so as to not
make construction thereof financially feasible as reasonably determined by TUSD. In such
event, TUSD may use the Sources of Funding for the 6-12 School Project at locations other than
on City Property provided such locations shall be as near as possible to City Property as
reasonably determined by TUSD, in order that students generated from development of the City
Property shall reasonably be able to attend such schools. In such an event, TUSD may use the
Project Funds to provide 6-12 school facilities for future grade 6-12 students from the City
Property, SPC Project and CFD No. 06-1 at locations other than on City Property. City
previously executed and provided to TUSD a "License and Site Access Agreement" ("License")
authorizing TUSD, under the provisions thereof, to access the City Property for access to Site
No. 2 and to pursue analysis of Site No. 2 for testing, borings and soil analysis in order to
accomplish conceptual preliminary design of the 6-12 School Project and seek preliminary
approval from the California Department of Education ("CDE") and the Department of Toxic
Substance Control ("DTSC"), or other regulatory approvals (collectively, "Regulatory
Approvals"), pursuant to the terms of such License including indemnification, insurances and
restrictions thereof. City shall not authorize others to enter upon Site No. 2 without the prior
written consent of TUSD, which TUSD shall not unreasonably withhold.
N. As to Heritage School, using "Sources of Funding" described herein, TUSD
may construct additional permanent school facilities for grades K-5 at locations other than at
Heritage School or other than on the City Property if. (i) the cost of constructing such additional
K-5 school facilities at the Heritage School exceeds the Sources of Funding so as to not make
construction thereof financially feasible as reasonably determined by TUSD; or (ii) additional
property or use of additional property adjacent to Heritage School cannot be acquired on terms
reasonably acceptable to TUSD for expanding the Heritage School. If either event occurs,
TUSD may use the Project Funds to provide K-5 school facilities at locations other than on the
City Property, provided such locations shall be as nearby as possible to the future grade K-5
students from the City Property, the SPC Property, and CFD No. 06-1 as reasonably determined
by TUSD, in order that students generated from development of the City Property shall
reasonably be able to attend such schools.
O. Subject to the Base WSites Agreement, TUSD presently may only collect
from development occurring on MCAS -Tustin school fees in accordance with Education Code
Section 17620 and Government Code Sections 65995 ("Level 1 Fees"), 65995.5 and 65995.7
(respectively, "Level 2 Fees" and "Level 3 Fees" and, hereafter referred respectively to as
"Statutory School Fees" and "Alternative School Fees").
P. City has requested and TUSD shall initiate, at no cost to City, proceedings
pursuant to the Act, including Section 53317(f)(4), for the formation and authorization of
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"Special Taxes" and "Bonds" of the TUSD/CFD, subject to execution of this I/M Agreement, the
Site Conveyance Agreement and the TUSD/JCFA by applicable parties prior to formation of the
TUSD/CFD. City and TUSD shall take those actions required by law to establish the proposed
TUSD/CFD including the authorization of the Special Taxes and Bonds described in Exhibit
"E," encompassing the City Property for the purpose of partially funding the School Facilities
Project consistent with the provisions of this I/M Agreement.
Q. TUSD and City agree that, for the mutual consideration provided herein and
in the Site Conveyance Agreement, it is in their mutual best interests to enter into this I/M
Agreement, the mutually acceptable Site Conveyance Agreement, the TUSD/JCFA, the
TUSD/CFD to provide a site for the 6-12 School Project and a local source of funding for the
School Facilities Project in excess of the amount that would otherwise be required as Statutory
School Fees and Alternative School Fees by the City as mitigation for development of the City
Project.
R. The performance by all relevant Parties and City Assignees of this I/M
Agreement, the Site Conveyance Agreement, and the TUSD/JCFA, and the completion by
TUSD of the Formation Proceedings for the TUSD/CFD shall constitute complete mitigation of
any impact of the City Project upon TUSD and is in lieu of and shall completely satisfy any
obligation of the City to pay Statutory School Fees, Alternative School Fees or any other
mitigation which TUSD might otherwise impose on the City Project, including, but not limited
to, the school facilities requirements set forth in the Base M/Sites Agreement and other
applicable obligations relating to the City Project; provided, however, that the developers/project
applicants for any Senior Units or any non-residential development ("Commercial/Industrial
Development") constructed as part of the City Project shall be required to pay the then applicable
Statutory School Fees. To the extent City has assigned a portion of the City Property to the City
Assignees, development of such assigned City Property shall only be deemed complete
mitigation to the extent the City Assignee is in full compliance with the I/M Agreement, as
applicable to the City Assignee. In the event a City Assignee is in default for a portion of the
City Property, such City Property shall not be deemed in compliance with the mitigation
requirements until such default is fully cured.
S. Any development of the City Project resulting in more than 2,835 Dwelling
Units, excluding the Excluded Projects, which TUSD reasonably determines will generate a
greater number of K-12 school students than can be accommodated by the School Facilities
Project, shall be mitigated by the payment of a "Supplemental DU Mitigation Payment" by the
appropriate developers/project applicants in the amount for the applicable product type as
provided in Exhibit "D" hereto.
AGREEMENT
1. Incorporation of Recitals. All of the foregoing Recitals are correct and are
incorporated in this I/M Agreement by reference and made a part hereof.
2. Definitions. Unless the context otherwise requires, the words and terms defined
in this Article shall, for the purpose hereof, have the meanings herein specified.
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116-12 School Project" means the delivery of a "Construction -Ready" Site and
the construction, furnishing and equipment costs associated with the proposed school facilities to
be constructed on a Site as described in Exhibit "F" hereto.
"Act" means the Mello -Roos Community Facilities Act of 1982, as amended,
being California Government Code Sections 53311 et seq.
"Actual Project Cost" means the cost of the 6-12 School Project or applicable
portion thereof as described in Section 16 of this I/M Agreement.
"Alternative School Fees" means "Level 2 Fees" and "Level 3 Fees" as provided
in Government Code Sections 65995.5 and 65995.7.
"Alternative Site" means a site for the 6-12 School Project other than Site No. 2
as described in Recital M.
"Assessable Space" shall have the same meaning as set forth presently in
Government Code Section 65995(b)(1).
"Base EIS/EIR" means the Joint Final Environmental Impact
Statement/Environmental Impact Report for the Disposal and Reuse of the MCAS -Tustin
Property.
"Base M/Sites Agreement" means the October 21, 1996, agreement entitled,
"Agreement Between City of Tustin and Tustin Unified School District Regarding Transfer of
School Sites and Other Mitigation Measures."
"Bonds" means special tax bonds, or equivalent securities, for which the Special
Taxes of CFD No. 15-2 are pledged, issued by or on behalf of CFD No. 15-2 to provide funding
for the School Facilities Project.
"Builder" means any residential merchant builder building dwelling units on the
City Property or a builder of Commercial/Industrial Property.
"Certificate of Compliance" means the document issued by TUSD providing
that applicable requirements have been satisfied for City to issue a building permit as to
described Dwelling Units or Commercial/Industrial Development of the City Property.
"CFD Goals and Policies" means the rules, regulations and requirements
adopted by TUSD pursuant to the Mello -Roos Community Facilities Act of 1982.
"CFD No. 06-1" means the Community Facilities District No. 06-1 of TUSD.
"CFD No. 15-2" means the Community Facilities District No. 15-2 of the TUSD
(referred to herein, in some instances, as the TUSD/CFD).
"CFD No. 15-2/RMA" means the Second Amended Rate and Method of
Apportionment applicable to CFD No. 15-2 set forth on Exhibit "E" hereto.
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"City Advance" means the payment by the City of the Actual Project Cost for the
6-12 School Project as set forth in Sections 16 and 17 of this I/M Agreement.
"City/CFD" means the Community Facilities District No. 2014-1 of the City of
Tustin.
"City/COC Deposit" means a deposit by the City or a successor as to a
Certificate of Compliance as to the City Project and prior to the satisfaction of all conditions
precedent to this UM Agreement.
"City Project" means the development of the City Property currently proposed
and described on Exhibit `B" to this I/M Agreement.
"City Property" means the property depicted on Exhibit "A" to this I/M
Agreement and located within TUSD.
"Commercial/Industrial Development" means any non-residential development
of the City Property.
"Construction -Ready" means a project that meets the specifications set forth in
Exhibit "G" of this I/M Agreement, the Site Conveyance Agreement.
"Contractual Mitigation Payments" means the contractual obligation of the
owner of the City Property, as set forth herein, prior to the issuance of a Certificate of
Compliance as set forth in Section 5(a) of this I/M Agreement.
"Covered and Enclosed square feet of Commercial/Industrial Development"
shall have the same meaning as the definition of "Chargeable covered and enclosed space" in
Government Code Section 65995(b)(2) as such exists as of July 1, 2014.
"Currie School" means the A.G. Currie Middle School located within TUSD at
1402 Sycamore Avenue, Tustin, California 92780.
"District Account of the Improvement Fund" means an account within the
Improvement Fund into which the remaining amount of the proceeds from the CFD No. 15-2
Sale of Bonds will be deposited as provided in Section 10(d) of this I/M Agreement.
"Dwelling Units" means each separate residential dwelling unit that comprises an
independent facility capable of sale or lease separate from adjacent residential dwelling units.
"Formation Proceedings" means the formation of CFD No. 15-2, including
expiration of the applicable statute of limitation without a challenge thereto.
"Heritage School" means the Heritage School located at 15400 Lansdowne
Road, Tustin, CA 92782 on the former Tustin Marine Base.
"I/M Agreement" means this School Facilities Implementation, Funding and
Mitigation Agreement Between Tustin Unified School District, CFD No. 06-1 of TUSD, CFD
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No. 15-2 of TUSD (upon formation), the City of Tustin, and Community Facilities District No.
2014-1 of the City of Tustin.
"Index" means the greater of the Marshall & Swift Class B Construction -
Western Region Index or two percent (2%), from a base date of July 1, 2015, and increasing
annually thereafter beginning on July 1, 2016.
"Interim School Facilities" means interim TUSD school facilities required to
serve students anticipated by the City Project prior to completion of the School Facilities Project
as described in Paragraph J of the Recital of this I/M Agreement.
"Legacy Villas" means the development consisting of 533 multi -family Dwelling
Units.
"LRA" means the City of Tustin as the Local Redevelopment Authority
designated for the MCAS -Tustin Property.
"MCAS -Tustin Property" means the portion of the deactivated Marine Corps
Air Station — Tustin for which City is acting as the Local Redevelopment Authority.
"Party" or "Parties" means TUSD, TUSD/CFD, CFD No. 06-1, City and
City/CFD, individually or collectively.
"Planning Design City Advance" means the $4,000,000 advanced by City for
the conceptual site planning and preliminary design of the 6-12 School Project as set forth in
Section 16(b)(ii) of this I/M Agreement.
"Project Costs" means those costs described in Exhibit "F" to this I/M
Agreement.
"Project Funds" means those funds described in Exhibit "F" to this I/M
Agreement.
"Reserve Fund" an account to be funded by a portion of the bond sale proceeds
in an amount equal to the lesser of (i) 10% of the initial principal amount of the Bonds, (ii)
maximum annual debt service on the outstanding Bonds, or (iii) 125% of the average annual debt
service on the outstanding bonds.
"ROD" means the Record of Decision in connection with the City acting as the
Local Redevelopment Authority for the MCAS -Tustin Property.
"Sale of Bonds" means the sale and issuance of Bonds by or on behalf of the
CFD No. 15-2 to provide funding for the public facilities described herein.
"School Facilities Project" means the conveyance of Site No. 2 or an Alternative
Site and permanent K-12 facilities to be constructed by TUSD to accommodate the students
which are anticipated from the development of the City Project and the Interim School Facilities
needed prior to completion thereof, as well as the costs incurred by TUSD for formation of
TUSD/CFD and this I/M Agreement. The School Facilities Project consists of the "6-12 School
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Project," the "Heritage School," and. the expansion of Heritage School as described in Exhibit
"F." As discussed further herein, construction of the 6-12 School Project is dependent upon the
timely availability of funds for such construction from the Sources of Funding. The Parties
intend to fund the 6-12 School Project with the following priority: (a) 6-12 School Project; (b)
9-12 School Project; (c) 6-8 School Project; and (d) Heritage School Expansion.
"Senior Unit" means a Dwelling Unit within a property developed for senior
citizen housing, a residential care facility for the elderly or a multi-level facility for the elderly,
as those terms are defined in Government Code Section 65995.1 and as such section may be
amended from time to time.
"Site" means Site No. 2, or if Site No. 2 is not conveyed in a Construction -Ready
condition, an Alternative Site on the City Property conveyed in a Construction -Ready condition
and reasonably acceptable to TUSD, or a location other than on City Property as described in the
I/M Agreement and the Site Conveyance Agreement.
"Site Conveyance Agreement" means the agreement set forth in Exhibit "G"
hereto.
"Site No. 1" means the ten (10) acre site on the MCAS -Tustin Property shown on
Exhibit "C" of this I/M Agreement.
"Site No. 2" means the forty (40) acre site on the MCAS -Tustin Property shown
on Exhibit "C" to be conveyed to TUSD pursuant to this I/M Agreement and the Site
Conveyance Agreement set forth in Exhibit "G" hereto
"Sources of Funding" means the sources of funding for the Project Costs
described in Exhibit "F" of this I/M Agreement.
"SPC" means the Standard Pacific Corporation.
"SPC Project" means the development of presently estimated 375 single-family
Dwelling Units on the SPC Property.
"SPC Property" means the portions of the MCAS -Tustin Property conveyed to
the Standard Pacific Corporation by the City consisting of 375 dwelling units.
"Special Fund" a designated, interest earning special fund in which the herein -
described Sources of Funding shall be deposited, held and used by TUSD as provided in this I/M
Agreement, excluding proceeds of bonds of the CFDs held by their respective Trustee.
"Special Tax Remainder" means any Special Tax proceeds not needed for
interest and principal of the Bonds or costs of administration of CFD No. 15-2 as provided for in
the CFD No. 15-2 RMA and the TUSD/JCFA.
"Special Taxes" means the special taxes of CFD No. 15-2, authorized to be
levied and collected on taxable real property located within the boundaries of the CFD No. 15-2,
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pursuant to State law, including, but not limited to, the provisions of the Act and the Rate and
Method.
"St. Anton Project" means the development described in Exhibit `B" consisting
of 225 multi -family Dwelling Units.
"State" means the State of California.
"Statutory School Fees" means those developer impact school fees authorized
by Education Code Section 17620 and Government Code Sections 65997.5, 65997.6 and
65997.7.
"Supplemental DU Mitigation Payment" means the contractual obligation of
the owner of the City Property who requests a Certificate of Compliance in excess of the
specified number of non -Senior Units shown on Exhibit `B," in the amount for the applicable
product type set forth in Exhibit "D," subject to increase as provided in Section 5(a) of this I/M
Agreement.
"Total School Facilities Project Amount" means the total estimated cost of the
School Facilities Project as described in Exhibit "F" to this I/M Agreement.
"TUSD" means the Tustin Unified School District.
"TUSD/CFD" means proposed Community Facilities District No. 15-2 of the
Tustin Unified School District.
"TUSD/JCFA" means the Joint Community Facilities Agreement By and Among
Tustin Unified School District, Community Facilities District No. 2014-1 of the City of Tustin
and Standard Pacific Corp. set forth on Exhibit "I" hereto.
"Tustin High School" means Tustin High School located at 1171 El Camino
Real, Tustin, California 92780.
"Veeh Elementary School" means the Marjorie Veeh Elementary School located
within TUSD at 1701 San Juan Street, Tustin, California 92780.
Unless the context otherwise indicates, words expressed in the singular shall include the
plural and vice versa and the use of the neuter, masculine or feminine gender is for convenience
only and shall be deemed to include the neuter, masculine or feminine gender, as appropriate.
Headings of sections herein are solely for convenience of reference, do not constitute a part
hereof and shall not affect the meaning, construction or effect hereof.
All references herein to "Sections" and other subdivisions are to the corresponding
Sections or subdivisions of this I/M Agreement; the words "herein," "hereof," "hereby,"
"hereunder" and other words of similar import refer to this I/M Agreement as a whole and not to
any particular Section or subdivision hereof.
3. Purposes of I/M Agreement. As is set forth in detail in the above Recitals, the
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purposes of this I/M Agreement are to (i) supersede the provisions of the Base M/Sites
Agreement and implement the provisions of the Base EIS/EIR, ROD, and agreements entered
into by City and TUSD as herein provided with respect to the City Project; and (ii) establish a
means for funding and accomplishing the School Facilities Project.
4. Costs of School Facilities Project. The overall Total School Facilities Project
Amount of the School Facilities Project relating to the City Project, SPC Project and
development in CFD No. 06-1 as of July 1, 2014, subject to adjustment as provided for herein
and as set forth in Exhibit "F," is presently estimated to be $75,117,850 as described in Exhibit
"F." This I/M Agreement and Exhibit "F" assume conveyance to TUSD by City of Site No. 2
improved by City as Construction -Ready prior to "Close of Escrow," except that TUSD shall be
responsible for completing Item 7 of Exhibit "F" to the Site Conveyance Agreement ("Item 7
Work") after Close of Escrow. TUSD's obligation to complete Item 7 Work is conditioned upon
City making the Planning Design City Advance as specified in Section 6.1.2(e) of the Site
Conveyance Agreement and providing to TUSD, by electronic funds transfer, all funds
reasonably estimated and determined by TUSD (the "Estimated Funds") to be necessary to cover
all costs of undertaking and completing the work and improvements associated with the Item 7
Work from the Sources of Funding. All such Estimated Funds shall be transferred to TUSD by
the City in advance of TUSD's undertaking any portion of the Item 7 Work. Any such Estimated
Funds provided to TUSD by the City for the Item 7 Work shall be paid to the City to the extent
and on the conditions provided in the Site Conveyance Agreement. The Total School Facilities
Project Amount shall be increased by the Index on July 1, 2015, and annually thereafter from a
base date of July 1, 2014. When needs for any additional remediation of Site No. 2, or an
Alternative Site, if any, are known, City may accomplish in its discretion remediation as required
by CDE or DTSC or may in its discretion, provide from the City Property a comparable
Construction -Ready Alternative Site reasonably acceptable to TUSD, CDE, and DTSC on terms
and conditions reasonably acceptable to TUSD for the 6-12 School Project. If either Site No. 2
or an Alternative Site are not so provided by City on conditions reasonably acceptable to TUSD,
such 6-12 student capacity may be constructed by TUSD as herein provided at locations other
than on the City Property using all the Sources of Funding described in Exhibit "F." Subject to
all of the foregoing of this Section 4, this provision shall not be interpreted as requiring the City
to remediate any such environmental issues as to Site No. 2 or the Alternative Site, but, if either
are conveyed to TUSD, such Sites shall be conveyed Construction -Ready as described in the Site
Conveyance Agreement.
5. Funding Provisions. The Parties shall fund, as applicable, the following four
components of the Total School Facilities Project Amount for the School Facilities Project:
a. The first component of the Total School Facilities Project Amount consists
of the applicable "Contractual Mitigation Payment" in the amount of Statutory School Fees to be
paid by City prior to issuance of a "Certificate of Compliance" (herein defined) for a building
permit for a Dwelling Unit, or the applicable Level 1 Statutory School Fee as to Senior Units or
Commercial/Industrial Development in the City Project. The Contractual Mitigation Payment
provided for herein shall be paid to TUSD in the amount then currently authorized by Education
Code Section 17620 and Government Code Section 65995. Such amounts as of the date of this
I/M Agreement are $3.36 per square foot of "Assessable Space" of each Dwelling Unit (other
than the Senior Units) and $0.54 per "Covered and Enclosed" square feet of
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Commercial/Industrial Development and Assessable Space of Senior Units. TUSD shall not
collect Contractual Mitigation Payments in excess of such amounts (which shall increase every
other year, commencing 2016, by the percentage change in the Index for the preceding two-year
period), notwithstanding (a) any change in State law, (b) the repeal of Education Code
Section 17620 or Government Code Section 65995 or (c) TUSD's authorization of school
facilities fees on new development District -wide in excess of such amount. The Contractual
Mitigation Payments apply with respect to Certificates of Compliance for the original
improvements constructed on the City Property. It shall not preclude the levying by TUSD of
any Statutory School Fees or Alternative School Fees as to building permits for additional
construction or reconstruction undertaken on a Dwelling Unit following its first sale by the City.
All such additional construction or reconstruction shall be subject to any Statutory School Fee or
Alternative School Fee authorized by applicable law.
b. The second component shall be proceeds of special taxes and bonds of the
City/CFD to be issued and provided to TUSD as provided in the TUSD/JCFA and proceeds of
Special Taxes and Bonds of TUSD/CFD as described in Exhibit "F."
C. The third component shall be the sum of $15,000,000, to be provided by
City. This third component shall be paid to TUSD no later than May 1, 2016.
d. The fourth component shall be the "Other Funds" included in the
"Contractual Mitigation Payments & Other Funds" agreed to be provided by TUSD and CFD
No. 06-1 as described in Exhibit "F" hereto.
All the above-described Sources of Funding shall be deposited and held by TUSD in the
herein described Special Funds, or held by the Trustee of City/CFD, and the Trustee of
TUSD/CFD pursuant to the provisions of the applicable "Indenture" or "Trust Agreement" for
proceeds of bonds of the City/CFD and TUSD/CFD. The applicable portions of the Sources of
Funding being provided by the City, excluding bonds of the City/CFD and the TUSD/CFD,
consisting of the $15,000,000 by City as provided in Section 5(c) and the City Advance, if any,
of the Actual Project Cost shall be held in a "County Special Fund" by the County Treasurer, or
by TUSD as agreed by TUSD and City, to be provided to TUSD as specified in this I/M
Agreement. All of such Sources of Funding, no matter how held, shall be disbursed, upon
request of TUSD, to TUSD by such Trustee, or the County Treasurer, or used by TUSD if held
by TUSD in Trust in its Special Fund or Funds, only to fund obligations provided for in this I/M
Agreement. Each September 1, beginning September 1, 2016, or as soon thereafter as
reasonably possible, TUSD, upon request by City, shall provide City with an unaudited
accounting of such Funds specifying the amounts received on a cumulative basis and received
since the last accounting, the amount and specific nature of expenditures from the Funds and the
balance in the Funds as of the preceding June 30. Interest earned on amounts in the Funds shall
inure to the Funds until the School Facilities Project is completed and accepted by TUSD.
6. Formation of TUSD/CFD. City has requested and TUSD is initiating and is
pursuing the formation of the TUSD/CFD, pursuant to the Act, including Section 53317(f)(4)
thereof, authorizing the herein described Special Taxes and Bonds to provide in part the Sources
of Funding for the Project Costs as described herein, including Exhibit "F." Subject to execution
of this I/M Agreement and the other herein -described agreements, and the request and actions
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taken by City, TUSD and City have hereby agreed to, and shall, take any and all actions
reasonably necessary to accomplish the formation of the TUSD/CFD as described in Exhibit "H"
hereto if applicable.
7. Issuance of Certificates of Compliance for Project. Subsequent to the execution
of this I/M Agreement, the Site Conveyance Agreement, the TUSD/JCFA, completion of the
Formation Proceedings, and issuance of the Bonds of TUSD/CFD for TUSD in an amount
relating to the CFD No. 15-2 RMA set forth on Exhibit "E" hereto, as described and shown on
Exhibit "F," City may seek a Certificate of Compliance upon payment of the applicable
Contractual Mitigation Payment for a Dwelling Unit or Statutory School Fee as to a Senior Unit
or Commercial/Industrial Development. Prior to issuance of the Bonds of the TUSD/CFD, a
Certificate of Compliance may be obtained by paying the Contractual Mitigation Payment and a
"City/COC Deposit" in the amount for the product type as provided in Exhibit "D" other than
from the proceeds of any tax-exempt financing by City or on its behalf. In the event the City
provides the "City Advance" as described in Section 16 hereof, no City/COC Deposit shall be
required in addition to the applicable Contractual Mitigation Payment to the extent of the
amounts of the City Advance, if any. The City/COC Deposit will, upon the occurrence of the
foregoing, including the described Formation Proceedings for the TUSD/CFD be refunded
within thirty (30) calendar days after receipt and to the extent of proceeds of the Bonds of the
TUSD/CFD. When such Bond proceeds are received, City shall be entitled to receive, to the
extent herein provided: (i) a refund of such City/COC Deposits without interest thereon to the
extent of the proceeds of Bonds therefor; and (ii) credit in lieu of a City/COC Deposit as further
described herein as to future Certificates of Compliance for the City Project to the extent of the
remaining Bond proceeds.
S. Mitigation of City Proiect School Facility Impacts. Pursuant to the foregoing, but
subject to completion of the Formation Proceedings of the TUSD/CFD and performance of this
I/M Agreement, the Site Conveyance Agreement by City and the City/CFD, and Close of Escrow
for the Site, the Parties agree that the City Project's impacts on TUSD, excluding the Excluded
Projects, are mitigated. Except as provided under this I/M Agreement, 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, except as provided in this I/M
Agreement in any way relating to the use, occupancy or development of the City Project,
excluding the Excluded Projects and exclusive of property taxes for existing or future general
obligation bonds of TUSD, a school facilities improvement district of TUSD, Special Taxes of
TUSD/CFD. Also, the foregoing exempts parcel taxes, special taxes, or assessments established
by TUSD that relate to operating, maintaining or modernizing its 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 City 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;
C. Oppose or encourage others to oppose the development of the City Project
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or any governmental approval, whether legislative or administrative, or change in any
governmental approval on any basis whatsoever, provided, however, that any such change is not
materially inconsistent with the terms, objectives, or assumptions of this I/M Agreement, the Site
Conveyance Agreement, or the TUSD/JCFA; or
d. Sponsor or require the formation of any other community facilities district,
assessment district or similar district including the City Project, but excluding the Excluded
Projects, without the written consent of City which consent may be given or withheld by City in
its sole discretion, except as provided in subparagraph (a) of this Section 8.
If City requests a Certificate of Compliance in excess of the 2,835 non -Senior Units
shown on Exhibit `B," it shall be required to pay the Supplemental DU Mitigation Payment in
the amount provided for the applicable product type as provided in Exhibit "D" hereto.
The foregoing provisions of this Section 8 of this I/M Agreement shall automatically
terminate upon issuance of the initial Certificate of Compliance for the last Dwelling Unit in the
City Project.
9. Proiect Funds, TUSD/CFD. As set forth herein, and subject to the provisions of
Section 16(f) hereof and applicable law including state and federal law relating to issues of tax-
exempt financing, TUSD, consistent with Exhibit "D," and Exhibit "E" and subject to
completion of the Formation Proceedings for TUSD/CFD shall take all actions necessary to issue
Bonds in one or more series consistent with applicable laws, its CFD Goals and Policies attached
hereto as Exhibit "J" and this I/M Agreement in an amount consistent with the Special Taxes set
forth in Exhibit `B" to this I/M Agreement. Exhibit "E" was prepared as an example based on
assumptions that the Bonds are being issued at an average coupon rate of six and one-quarter
percent (6.25%), a thirty (30) year bond term, 110% debt service coverage, and on the specified
number of Dwelling Units set forth on Exhibit "D" provided to TUSD by City.
10. TUSD/CFD Bonds. The Bonds of TUSD/CFD to be issued consistent with the
provisions of this I/M Agreement as reasonably determined by the TUSD/CFD and TUSD and
the Bond proceeds shall be applied as follows:
a. First Priority: To pay for costs of issuing the Bonds.
b. Second Priority: To fund the Reserve Fund.
C. Third Priority: Capitalized interest for a period of up to twelve (12)
months.
d. Fourth Priority: To deposit into the District Account of the Improvement
Fund for the Bonds, the unfunded remaining amount of the Bonds for the School Facilities
Project. Subject to applicable law, including state and federal law relating to use of proceeds of
tax exempt bonds any remaining Bond proceeds shall be used to compensate City for the
Construction -Ready Cost provided to TUSD as set forth in the Site Conveyance Agreement, and
to reimburse the City for the City Advance, if any, and/or any City/COC Deposit. Any proceeds
in excess of the amount required to complete the funding of the School Facilities Project, if and
when received, including provisions of the Site Conveyance Agreement as to costs of City as to
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improving the Site as Construction -Ready as described therein, shall be deposited into the
District Account of the Improvement Fund to be used as reasonably determined by TUSD for
additions to the School Facilities Project or as determined by TUSD consistent with applicable
law.
11. Rate and Method of Apportionment. City and TUSD, agree that the formation of
the TUSD/CFD shall be accomplished as set forth in Exhibit "H" hereto and that the Special
Taxes and the related provisions of the CFD No. 15-2/RMA shall be applicable to the City
Property. The Parties also agree the Special Taxes shall be levied in the fixed amount specified
in the CFD No. 15-2/RMA, including any Special Tax Remainder provided for in the CFD No.
15-2/RMA. Pending completion of the School Facilities Project, the Special Tax Remainder of
the TUSD/CFD shall be added to the funds available for the School Facilities Project. After
completion thereof, such amounts shall inure to the benefit of TUSD for its use consistent with
applicable law.
12. Issuance of Bonds for TUSD/CFD. City and TUSD agree that, subject to
completion of the Formation Proceedings, TUSD/CFD shall take all actions reasonably
necessary to offer for sale, sell, and to issue the Bonds of TUSD/CFD The approximate net
proceeds of the Bonds presently anticipated to be issued by TUSD/CFD based on the
assumptions herein is $38,593,074, or a varying amount depending on any increase by the Index
as herein provided or the number of such Dwelling Units for which building permits have been
or are authorized to be issued for the City Property, as herein provided. Such amount is based on
the assumed 2,835 Dwelling Units of the City Project and shall be the maximum amount which
may be supported by the Special Taxes as provided for in the CFD No. 15-2/RMA within the
limits imposed by the CFD Goals and Policies of TUSD and applicable law consistent with the
following terms:
a. The term of the initial series of Bonds shall be not less than thirty (30)
years subject to issuance of refunding bonds and "Parity Bonds," if any, which may be issued for
a lesser term.
b. Issuance costs shall be reasonable and in accordance with sound municipal
finance practices and CFD Goals and Policies of TUSD.
C. The Reserve Fund shall be funded in an amount equal to the lesser of
(i) 10% of the initial principal amount of the Bonds, (ii) maximum annual debt service on the
outstanding Bonds, or (iii) 125% of the average annual debt service on the outstanding Bonds.
d. Capitalized interest for up to twelve (12) months may be funded as
determined by TUSD and the TUSD/CFD.
e. Interest earnings on the Reserve Fund in excess of the Reserve Fund
requirement shall be transferred to the District Account of the Improvement Fund.
f. Interest earnings on the funds in the District Account of the Improvement
Fund shall be retained in the District Account.
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g. The interest rate on the Bonds for the purpose of setting the Special Tax
rates has been agreed at six and one-quarter percent (6.25%). The Special Tax rates, together
with overlapping general property taxes and assessments will be established with a maximum
total tax rate of 2.00% of the average sales price as represented to TUSD by City at the time of
formation of the TUSD/CFD.
h. Administrative expenses, for purposes of (i) setting any Special Taxes and
(ii) determining the Special Tax revenue available for debt service when actually issuing the
Bonds, are specified as first priority of Fifty Thousand Dollars ($50,000) per fiscal year which
shall index at two percent (2.00%) per year commencing July 1, 2015. Notwithstanding the
foregoing, the annual Special Tax levy may include an administrative expense amount exceeding
$50,000 to the extent authorized pursuant to the CFD No. 15-2/RMA.
i. Gross debt service coverage, for purposes of (i) setting the Special Tax
rates and (ii) issuing the Bonds, is agreed to be 110%.
13. School Facilities Project Review Committee. A committee comprised of five (5)
persons, including a person designated by City, shall be created by TUSD upon completion of
the Formation Proceedings. The committee shall be responsible for review of TUSD
expenditures of the Sources of Funding for the School Facilities Project consistent with this I/M
Agreement. TUSD shall provide written information as to all expenditures from the Sources of
Funding to the committee on a quarterly basis in a form reasonably acceptable to the committee.
14. Disclosure of Special Taxes and Indemnification. City shall comply with all
applicable legal requirements for disclosure to purchasers of any applicable portion of the City
Property as to the TUSD/CFD and their Special Taxes in accordance with Government Code
Section 53341.5. In any and all agreements pursuant to which City may sell all or a portion of
the City Project to any residential merchant builder ("Builder"), City shall require that the
Builder similarly comply with all such applicable legal requirements.
City, or as applicable each of the City Assignees, shall defend, indemnify and hold
harmless TUSD as well as the TUSD/CFD, and each of their officers, employees and agents
from and against any and all actions, damages, claims, losses, expenses or liability arising from,
or related to, any deficiency in, the adequacy of, or the making of or failure to make any
disclosure required pursuant to these provisions. In any and all agreements pursuant to which
City may sell all or a portion of the City Property to any Builder, City shall require that the
Builder agree to defend, indemnify and hold harmless TUSD and TUSD/CFD, and each of their
officers, employees and agents to the extent set forth in these provisions.
15. Assi nay of this I/M Agreement. Nothing in this UM Agreement shall in any
way limit the right or ability of City or a City Assignee to transfer, assign, encumber, or
hypothecate the City Property or portions thereof without the consent of TUSD or TUSD/CFD,
provided, however, that no such transfer of any such Property, and no such assignment of all or
any portions of this I/M Agreement, shall be valid or effective unless and until: (i) TUSD and
TUSD/CFD are provided written notice of the transfer or assignment within ten (10) calendar
days thereof; and (ii) the City Assignee executes and delivers to TUSD and TUSD/CFD, within
such 10-day period, a copy of the Assignment/Assumption Agreement attached as Exhibit "K"
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hereto, and thereby assumes all applicable executory obligations under this I/M Agreement with
respect to the portion of the City Property transferred. If these conditions are met, TUSD and
TUSD/CFD agree to look solely to the City Assignee for performance of the City's transferred
obligations under this I/M Agreement. Whenever this I/M Agreement provides City with a right,
that right may be exercised by a City Assignee of that right to the same extent that City could
have exercised that right itself.
16. Implementation of 6-12 School Project. The Parties agree (i) that the timing of
construction of the 6-12 School Project is not certain at this time, and hence the potential need
for the provision of the Interim School Facilities, if applicable, funded by the Project Funds
described in Exhibit "F"; and (ii) the School Facilities Project, as further described in Exhibit
"F," will be accomplished as provided in this UM Agreement and is comprised of the following,
including related costs of furnishings and equipment as well as fees, permits, legal and
administrative costs. For the mutual benefit of TUSD and the City, "Joint Use Agreements" will
be accomplished relative to the School Facilities Project, including, but not limited to, the joint
use of playfields adjacent to Heritage School prior to the Close of Escrow for the Site.
(a) Heritage School. Heritage School is the existing ten (10) -acre site on
which Heritage School is located and expansion thereof, or additions thereto, to provide school
facilities for grade K-5 students from the City Project the SPC Project and CFD 06-1. The
currently estimated cost of expanding Heritage School is $6,565,815 based on TUSD's assumed
time of construction, as further described in Exhibit "F." The existing Heritage School shall be
open and operating as an elementary school for the 2016/2017 school year, provided the Parties
have executed this I/M Agreement, the Site Conveyance Agreement, the TUSD/JCFA, the City
has paid the Planning Design City Advance and the City has taken all actions reasonably
necessary for the formation of TUSD/CFD as set forth in Section 6 hereof on or before October
31, 2015. Should such actions occur after October 31, 2015, but collectively before June 30,
2016, the opening date shall be for the 2017/2018 school year. TUSD shall commence the
conceptual site planning and preliminary design of the expansion of Heritage School, in
accordance with applicable law, including compliance with Education Code Section 17210,
CEQA, and CDE approval when reasonably necessary as determined by TUSD. The cost of
expanding Heritage School as herein provided shall be funded as set forth in Exhibit "F"
including Bonds and Special Taxes of the TUSD/CFD.
(b) The 6-12 School Project. The 6-12 School Project to be constructed on
Site No. 2, an Alternative Site, in part at Heritage School, or other than on City Property as
herein provided is to provide school facilities for approximately 1,200 grade 6-12 students,
including grade 6-12 students expected to enroll from the development of the City Project
assuming entitlement of 2,835 Dwelling Units for the City Project, the SPC Project, and
development occurring within CFD No. 06-1. The anticipated events are contemplated as
follows:
i. Conditions to Proceeding with 6-12 School Project. TUSD,
subject to TUSD's receipt of the Planning Design City Advance, Close of Escrow on the Site and
complying with applicable law, agrees to take all reasonable actions to obtain all necessary
approvals and build the 6-12 School Project consistent with this I/M Agreement. Subject to: (a)
acquiring the Site Construction -Ready as provided in the Site Conveyance Agreement; (b)
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a
securing all necessary approvals for the acquisition and construction of the 6-12 School Project;
(c) sufficient Project Funds being timely available to TUSD from the Sources of Funding; and
(d) satisfaction of the provisions of this I/M Agreement, the 6-12 School Project shall be open
and operating in accordance with the timeframe set forth in subsections 16(b) v and vi below.
ii. Conceptual and Final Site Planning/Design. Within sixty (60)
calendar days following execution of this I/M Agreement, City shall pay to TUSD the Planning
Design City Advance to be utilized by TUSD for the planning and design of the 6-12 School
Project. Thereafter, and provided formation of the TUSD/CFD, TUSD will contract for and
commence the conceptual site planning and preliminary design of the 6-12 School Project,
including consideration of expanding Heritage School for grades K-8. Provided timely funding
from the Sources of Funding has been made to TUSD, final design will be accomplished and
submitted to the DSA for approval of construction by January 30, 2017, subject to any delays
beyond the control of TUSD including, but not limited to, those relating to the approval of the
Site by CDE and DTSC or satisfying conditions imposed by CDE or DTSC reasonably
acceptable to TUSD as herein provided. TUSD shall provide a preliminary site plan for the 6-12
School Project to City on or before February 29, 2016. The Parties shall work together to
designate by March 31, 2016, the mutually acceptable locations for the utility installations to
serve the School Facilities Project.
iii. Student Capacity for the 6-12 School Proiect. Bond covenants will
provide that, subject to the provisions of this I/M Agreement, TUSD shall construct and operate
the 6-12 School Project or capacity therefor as herein described for approximately 1,200 students
or such number of students as determined by TUSD and consistent with CDE requirements and
approval.
iv. Phasing of 6-12 School Project. Subject to the foregoing
provisions of this Section 16, absent the receipt of a City Advance or sufficient timely funds
from the Sources of Funding for the construction of the 6-12 School Project, the 6-12 School
Project is anticipated to be constructed in two (2) or more "Phases." TUSD will seek bids for the
construction of the 6-12 School Project based upon architectural plans approved by DSA. If
sufficient funds from the Sources of Funding have not been provided to TUSD to authorize
construction of the 6-12 School Project, TUSD will determine if sufficient funds from the
Sources of Funding are available for the construction of the 9-12 School Project. If sufficient
funds from the Sources of Funding have not been provided to TUSD to authorize construction of
the 9-12 School Project, TUSD will determine if sufficient funds from the Sources of Funding
are available for the construction of the 6-8 School Project as reasonably determined by TUSD.
The number and content of the Phases will be determined by TUSD based on the availability of
Project Funds and when Close of Escrow occurs as to the Site improved as Construction-Ready.
V. Phase I. Subject to (a) Close of Escrow of the Site as
Construction-Ready; (b) receipt by TUSD of a minimum of $41,383,215 of Project Funds as
increased by the Index for the 9-12 portion of the 6-12 School Project or a minimum of
$25,304,653 of Project Funds as increased by the Index for the 6-8 portion of the 6-12 School
Project, as described in Exhibit "F;" (c) TUSD's receipt of all necessary approvals for the
construction of the applicable portion of the 6-12 School Project; and (d) compliance with
applicable law, Phase I will be open and operating within thirty-six (36) months following
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satisfaction of these conditions for the 9-12 portion 'of the 6-12 School Project or thirty (30)
months following satisfaction of these conditions for the 6-8 portion of the 6-12 School Project
consistent with the plans therefor prepared by TUSD as herein provided, and approved by DSA
(based on the projected revenue and cost assumptions set forth in Exhibit "F"). What Phase I
might be and the cost thereof, will be reasonably determined by TUSD, however, Phase I will
include the administration building and kitchen/cafeteria facilities. The Parties agree that if the
Actual Project Cost, as defined in Section 16(e), is provided to TUSD from the Project Funds for
the 9-12 portion of the 6-12 School Project, the "Multi-Purpose/Gymnasium Facility" will be
included as part of the 9-12 portion of the 6-12 School Project. In the event the Actual Project
Cost is not provided to TUSD from the Project Funds for the 9-12 portion of the 6-12 School
Project, TUSD shall have discretion to revise the 9-12 portion of the 6-12 School Project by
reducing what is included as part of such 9-12 School Project. With respect to the proposed
Multi-Purpose/Gymnasium to be constructed as part of the 6-12 School Project, provided timely
funds from Sources of Funding have been provided to TUSD for the construction of the Multi-
Purpose/Gymnasium, there shall be a Joint -Use Agreement executed by City and TUSD prior to
Close of Escrow for the Site.
vi. Phase 11 and Subsequent Phases. Subject to (a) Close of Escrow of
the Site as Construction -Ready; (b) receipt by TUSD of the remaining Project Funds revised by
the Index sufficient to construct the Phase II portion of the 6-12 School Project; and (c) TUSD's
receipt of all necessary approvals for the construction of the applicable portion of the Phase II 6-
12 School Project. Phase II of the 6-12 School Project will be open and operating for the first
school year after the later of the following two events: (i) eight (8) years from the conveyance of
the Site as Construction -Ready; or (ii) within thirty-six (36) months after Close of Escrow of the
Site as Construction -Ready, and the issuance of a building permit by City for the 2,268th
residence within the TUSD/CFD, including not less than 600 single-family detached and
attached Dwelling Units. The facilities and improvements included in Phase II of the 6-12
School Project will be as reasonably determined by TUSD.
vii. Conveyance of Site for 6-12 School Project. The Site will be
conveyed by City Construction -Ready to TUSD as to Items 1-5 of Exhibit "F" of the Site
Conveyance Agreement, within three hundred sixty-five (365) calendar days of TUSD notifying
the City that the Site is acceptable. Upon execution of this I/M Agreement, TUSD shall
promptly take all reasonable steps to determine if the Site is reasonably acceptable and provide
notice to the City of its determination. If the Site is not accepted by TUSD, then the City may
take additional steps to make the Site Construction -Ready as to Items 1-5 in Exhibit "F" of the
Site Conveyance Agreement, or select and provide Construction -Ready an Alternative Site as to
Items 1-5 in Exhibit "F" of the Site Conveyance Agreement reasonably acceptable to TUSD,
CDE and DTSC, or notify TUSD that it is unable to provide a Site on City Property. If the City
selects an Alternative Site, TUSD shall promptly take all reasonable steps to determine if the
Alternative Site is reasonably acceptable and provide notice to the City of its determination.
(c) Additional Permanent School Facilities. If the City is not able to provide
the Site by means of Site No. 2 or an Alternative Site, at a location and in a condition reasonably
acceptable to TUSD, or, in the event TUSD has not been provided with sufficient funds to
construct the 9-12 School Project or the 6-8 School Project, TUSD may use the Project Funds to
construct the applicable portion of the 6-12 School Project at locations other than City Property
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as provided in Recital "K" hereof. If the cost of additional permanent school facilities for grade
K-5 at Heritage School or the applicable portion of the 6-12 School Project exceed the Sources
of Funding, so as to make construction thereof financially infeasible or additional property or use
of additional property adjacent to Heritage School cannot be acquired adjacent to Heritage
School on terms reasonably acceptable to TUSD, TUSD may construct additional permanent
school facilities for grades K-5 or the applicable portion of the 6-12 School Project at locations
other than on City Property as provided in Recital "K" hereof.
(d) Project Costs. The estimated "Project Costs" relating to the School
Facilities Project as set forth in greater detail in Exhibit "F," are $75,117,850 as of July 1, 2014.
These estimated Project Costs may escalate at a percentage greater than the assumed escalation
of the available Project Funds shown above, and depending upon the timing and phasing of
construction, the Project Costs may exceed the amount of Project Funds available for the
proposed School Projects.
(e) The foregoing provisions of this Section 16 notwithstanding:
i. Alternatively at any time prior to construction of the 6-12 School
Project, or the 9-12 School Project, the City may provide preliminary written notice
("PW/Notice") to TUSD that it desires to provide advance funding for the 6-12 School Project or
a portion thereof ("City Advance Notice". and "City Advance") and certify in the PW/Notice that
such will not be funded by City with the proceeds of tax exempt bonds or other tax exempt
financings. The City Advance, if such occurs, is agreed to be in the amount of the anticipated
bid or bids for construction thereof, construction management, supervision, furnishings,
equipment, fees and up to 10% of the anticipated bid or bids for contingencies for change orders
or unforeseen costs (collectively, "Actual Project Cost"), as reasonably determined by TUSD and
agreed to by the Parties. The Actual Project Cost will be determined to fund the 6-12 School
Project ("City 6-12 Advance Project") or, if there are not sufficient funds to construct the 6-12
School Project, the Actual Project Cost to construct the 9-12 School Project portion of the 6-12
School Project ("City 9-12 Advance Project") upon receipt of bids therefor, if the grade 6-8
portion of the 6-12 School Project has been postponed to Phase II of the 6-12 School Project.
The Parties acknowledge that the Actual Project Cost will not be known
until final design of the 6-12 School Project has been accomplished and approved by the DSA
and bids received. The 6-12 School Project shall be designed and submitted to DSA inclusive of
the alternative of only constructing the Phase I grade 9-12 portion or the Phase II grade 6-8
portion. If the City has provided TUSD with the PW/Notice of its desire to pay the applicable
City Advance, TUSD shall, upon receipt of final design approval by the DSA, solicit bids for
construction of the 6-12 School Project or, if applicable, the 9-12 School Project and on bids
received, advise City of the applicable Actual Project Cost.
If City does not concur in the applicable Actual Project Cost, the Parties
shall meet to discuss such and seek to determine and agree upon Actual Project Cost of the 6-12
School Project, the 9-12 School Project or the 6-8 School Project as designed and submitted to
and approved by DSA for which bids were received by TUSD. If an agreement is reached, the
City shall, within thirty (30) days of agreement as to Actual Project Cost, pay the applicable City
Advance to TUSD, but not later than five (5) calendar days prior to expiration of the bids
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referenced herein, or such other time as the Parties agree.
If the City Advance is made for the 6-12 School Project, the 6-12 School
Project shall be open and operating for the first school year that is thirty-six (36) months after
Close of Escrow of the Site as Construction -Ready and TUSD's receipt of the applicable City
Advance. If the foregoing relates to the 9-12 School Project, that Project shall be open and
operating for the first school year that is thirty-six (36) months after TUSD's receipt of the
applicable City Advance. If the City Advance is not agreed to by the Parties or received by
TUSD as herein described, the 6-12 School Project or applicable portion of the 6-12 School
Project shall be constructed and operated by TUSD as otherwise provided in this UM Agreement.
ii. To the extent that proceeds of Bonds become available in the
District Account of the Improvement Fund to fund the 6-12 School Project, the TUSD/CFD shall
reimburse the City the amount of the City Advance, without interest provided that such is
consistent with then applicable law relating to use of proceeds of tax-exempt bonds, and to the
extent City has certified in writing that the City Advance was not funded with proceeds of tax
exempt bonds or other tax exempt financings. The City Advance shall only be reimbursed after
the 6-12 School Project has been funded, and before Heritage. After payment of the City
Advance, but prior to issuance of the Bonds, the City may, in its discretion, notify TUSD to not
issue the Bonds relating to the amount of the City Advance of the Actual Project Cost including
costs of the Construction -Ready improvements of the Site funded by City. In such an event,
TUSD shall have no obligation to reimburse the City Advance and TUSD/CFD shall have no
obligation to the City. If City pays the City Advance, the funds therefrom shall be held in the
herein described County Special Fund of the County Treasurer or as agreed by City and TUSD in
Section 5(d) of this I/M Agreement. The City Advance funds shall be disbursed to TUSD only
to fund the applicable 6-12 Project, the 9-12 Project or the 6-8 School Project funded by the City
Advance. In the event City requests that Bonds not be issued to reimburse City for the
applicable City Advance or other Construction -Ready Costs on the Site funded by City after
completion of the 6-12 School Project or applicable portion thereof, the TUSD/CFD shall
proportionately reduce the future levy of the Special Taxes of TUSD/CFD as to the amount of
the Bonds not to be issued. The Special Taxes shall not be reduced as to amounts needed for
expansion of Heritage School or funds needed for completion of the School Facilities Project. If
such occurs, the obligation of TUSD/CFD for Construction -Ready Costs of the Site by City
provided for in Section 6.1.2(d) of the Site Conveyance Agreement shall terminate.
17. Special Taxes of TUSD/CFD Contractually Obligated for School Facilities. This
I/M Agreement and the SPC Mitigation Agreement establish a contractual agreement between
and among TUSD, City, and the herein described community facilities districts, and commit the
herein described Special Taxes to the funding of the School Facilities Project to enable, to the
extent provide herein, TUSD to meet the school facilities needs of TUSD and to provide a
process by which the City as the LRA and SPC may obtain Certificates of Compliance to
complete the City Project and the SPC Project. The levy of Special Taxes is an integrated
contractual obligation to fund the herein described amount for the School Facilities Project
required by the aforementioned contractual obligations. The Parties agree that any reduction or
repeal of the Special Taxes authorized to be levied on parcels in the TUSD/CFD would impair
such existing contractual obligations.
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18. Binding on Successors: No Third Party Beneficiaries. This I/M Agreement shall
be binding upon and inure to the benefit of the successors and assigns of the Parties hereto. This
I/M Agreement is entered into solely for the benefit of the Parties and the successors, transferees
and assigns of all Parties. Other than TUSD, TUSD/CFD, City and City/CFD and their
successors, transferees and assigns, no third person shall be entitled, directly or indirectly, to
base any claim or to have any right arising from, or related to, this I/M Agreement.
19. Entire Agreement. This I/M Agreement and the agreements incorporated herein
contain the entire agreement and understanding concerning the funding of school facilities to
house students generated by the development of the City Project and supersedes and replaces all
prior negotiations and proposed agreements, written and oral. The Parties acknowledge that
neither the other Party nor its agents nor its attorneys have made any promise, representation or
warranty whatsoever, express or implied, not contained herein to induce the execution of this I/M
Agreement and acknowledge that this I/M Agreement has not been executed in reliance upon any
promise, representation or warranty not contained herein.
20. Amendments Must Be In Writing. This I/M Agreement may not be amended,
except by a writing signed by TUSD, City, City/CFD, and CFD No. 06-1.
21. Interpretation Guides. In interpreting this I/M Agreement, it shall be deemed that
it was prepared by the Parties jointly and no ambiguity shall be resolved against either Party on
the premise that it or its attorneys were responsible for drafting this I/M Agreement or any
provision thereof. Headings used in this I/M Agreement are for convenience and ease of
reference only and are not intended nor may be construed as a guide to interpret any provision of
this I/M Agreement.
22. Due Authority of Signatories to Execute Agreement. Each individual signing this
I/M Agreement warrants and represents that he or she has been authorized by appropriate action
of the Party which he or she represents to enter into this I/M Agreement on behalf of the Party.
23. Notices. All notices, demands and communications between the Parties shall be
given by personal delivery, registered or certified mail, postage prepaid, return receipt requested,
Federal Express or other reliable private express delivery, or by facsimile transmission. Such
notices, demands or communications shall be deemed received upon delivery if personally
served or sent by facsimile or after three business days if given by other approved means as
specified above. Notices, demands and communications shall be sent:
To TUSD: Tustin Unified School District
300 South C Street
Tustin, CA 92780
Telephone No.: (714) 73 0-73 01
Fax No.: (714) 730-7436
Attn: Chief Financial Officer
CFD No. 06-1: Community Facilities District No. 06-1
of the Tustin Unified School District
c/o Tustin Unified School District
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300 South C Street
Tustin, CA 92780
Telephone No. (714) 730-7304
Fax No.: (714) 730-7436
Attn: Chief Financial Officer
With a copy to: Bowie, Arneson, Wiles & Giannone
4920 Campus Drive
Newport Beach, CA 92660
Telephone No.: (949) 851-1300
Fax No.: (949) 851-2014
Attn: Alexander Bowie, Esq.
To City: City of Tustin
300 Centennial Way
Tustin, CA 92780
Telephone No.: (714) 573-3000
Fax No.: (714) 832-0825
Attn: City Manager
To City/CFD: Community Facilities District No. 2014-1 of
the City of Tustin
c/o City of Tustin
300 Centennial Way
Tustin, CA 92780
Telephone No.: (714) 573-3000 Fax No.:
(714) 832-0825
Attn: Finance Director
With a copy to: David Kendig, City Attorney
Woodruff, Spradlin & Smart
555 Anton Boulevard, Suite 1200
Costa Mesa, CA 92626
24. SB 165 Disclosure. City recognizes that California SB 165, Chapter 535 of the
Statutes of 2000, effective January 1, 2001, provides disclosure and reporting requirements for
any local bond measure that is subject to voter approval and which would provide for the sale of
the Bonds by a local agency. City agrees to fully and completely cooperate with TUSD and CFD
No. 15-2 in meeting the requirements of SB 165.
25. Continuing Disclosure. City shall cooperate with TUSD and CFD No. 15-2 in
complying with Rule 15c2-12 of the Securities and Exchange Commission throughout the
issuance and sale of the Bonds so long as City is an "obligated person" under such Rule 15c2-12.
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26. California Law Governs I/M Agreement. This I/M Agreement and all rights and
obligations arising out of it shall be construed in accordance with the laws of the State of
California.
27. Counterparts. This I/M Agreement may be signed in one or more counterparts
which, taken together, shall constitute one original document.
28. School Facilities Project Attendance Priority. The Special Taxes and Bonds of
TUSD/CFD are a portion of the funding of the cost of the School Facilities Project. Students
residing within TUSD/CFD shall have a degree of attendance priority reflecting the proportion of
the School Facilities Project that is funded by the Special Taxes and Bonds of the TUSD/CFD, as
provided by Government Code Section 53312.7. The foregoing excludes any City Advance of
Actual Project Cost unless reimbursed from Bonds of the TUSD/CFD or provided as a
prepayment of Special Taxes of TUSD/CFD. This statutory -based priority is subject to elections
and determinations pursuant to the McKinney-Vento Homeless Education Improvements Act (42
U.S.C. Sec. 11431 et seq.) as incorporated, amended and reauthorized by the No Child Left
Behind Act of 2001 (20 U.S.C. Sec. 6301) and Education Code Section 48850 relating to
"Education for Homeless Children and Youth."
29. Exhibits. All Exhibits attached hereto are incorporated into this I/M Agreement.
30. CEQA Proceedings Regarding School Facilities Project. The obligation of
TUSD as to the accomplishment of the herein described School Facilities Project has been
addressed by the Mitigated Negative Declaration ("MND") approved by TUSD on May 18, 2015
and the Addendum to the MND approved by TUSD on August 24, 2015. By approval of this
I/M Agreement, TUSD approves the School Facilities Project as described herein.
31. Expedited ADR Provisions.
31.1 Any disputes, controversies, or claims between or among the Parties
arising under or relating to any of the terms or conditions of this I/M Agreement or the Site
Conveyance Agreement, including, but not limited to, the breach, enforcement, or interpretation
of any of the terms or conditions of this I/M Agreement or the Site Conveyance Agreement
(collectively, "Dispute"), shall be resolved solely and exclusively by final and binding arbitration
("Expedited ADR") conducted through the Orange County, California office of Judicial
Arbitration and Mediation Services, Inc. ("JAMS"), in accordance with the procedures set forth
below.
31.2 Expedited ADR shall be commenced by a Party giving written notice to
the other Party or Parties to the Dispute ("Expedited ADR Notice"). Such Expedited ADR
Notice shall include a description of the Dispute sufficient to put the other Party or Parties on
notice as to the factual and legal bases for the Dispute. No later than thirty (30) days after
service of the Expedited ADR Notice, the Parties to the Dispute, unless they otherwise agree in
writing to extend the 30 -day deadline for hearing the Dispute, shall submit to final and binding
Expedited ADR of the Dispute at a hearing to be conducted at the Orange County, California
office of JAMS, by a retired judge ("Neutral Jurist") from the panel of jurists at JAMS, unless
the Parties to the Dispute agree in writing to (a) hold the hearing at a different location or (b) use
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a retired judge associated with a different ADR provider.
31.3 The Parties to the Dispute shall be responsible for advancing their
respective pro rata shares of the fees and expenses of the Neutral Jurist and all administrative
fees associated with the Expedited ADR, subject to the later reallocation or award of such fees
and expenses pursuant to Section 31.5.5 below. The Party serving the Expedited ADR Notice
shall be entitled to have the Dispute heard by the Neutral Jurist on the first date available on the
calendar of the Neutral Jurist that is consistent with the briefing schedule set forth below and
within the 30 -day period specified above, unless otherwise agreed in writing by the Parties to the
Dispute. In the event of death or incapacity of the Neutral Jurist or upon the Neutral Jurist's
acknowledged unavailability or other inability to preside over or resolve the Dispute within the
time deadlines specified, and unless the Parties otherwise agree in writing, a replacement Neutral
Jurist shall be appointed to preside over and resolve the Dispute in accordance with the
procedures set forth below and, if necessary, the Expedited ADR proceeding shall begin anew.
31.4 In order to select the Neutral Jurist, the Parties to the Dispute, within five
(5) business days after service of the Expedited ADR Notice, shall simultaneously exchange a
list of three retired judges from JAMS who are available to conduct the Expedited ADR. In the
event that the name of a single retired judge appears on each of the Parties' list, then that judge
shall be appointed as the Neutral Jurist. In the event that the names of at least two or more
retired judges appear on each of the Parties' lists, then the names of all judges who appear on
each of the Parties' lists shall be placed in a hat and the judge whose name is drawn out of the
hat (by a representative of JAMS) shall be appointed as the Neutral Jurist. Finally, in the event
there is no retired judge whose name appears on each of the Parties' lists, then the names of all
judges on each of the Parties' lists shall be placed in a hat and the judge whose name is drawn
out of the hat (by a representative of JAMS) shall be appointed as the Neutral Jurist.
31.5 The Expedited ADR shall be conducted in accordance with (i) the
California Arbitration Act, Code of Civil Procedure, sections 1280 through 1294.2, inclusive (as
the Act may exist as of the date of this Agreement) ("Arbitration Act"), except as such statutory
provisions may be modified by, or are otherwise inconsistent with, the procedures established
herein, in which case the modifications and procedures set forth herein shall govern; and (ii) the
JAMS Comprehensive Arbitration Rules & Procedures effective at the time the Expedited ADR
is commenced, except as such Rules & Procedures may be modified by, or are otherwise
inconsistent with, the procedures established herein, in which case the modifications and
procedures set forth herein shall govern. In the event that the JAMS Rules & Procedures conflict
with the Arbitration Act, the Arbitration Act shall govern. In addition to the procedures set forth
above, the following additional procedures shall govern the Expedited ADR:
31.5.1 Unless otherwise agreed in writing by the Parties or ordered by
the Neutral Jurist, all briefs and other papers relating to the Dispute shall be submitted to the
Neutral Jurist and served by e-mail upon the other Party or Parties to the Dispute during normal
business hours in accordance with the following schedule:
31.5.1.1 At least twenty (20) business days before the date of the
Expedited ADR hearing, the Party that scheduled the Expedited ADR hearing shall personally
serve the Neutral Jurist and the other Party or Parties to the Dispute with (i) an application
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("Application") describing the Dispute and the relief sought; (ii) a memorandum of points and
authorities in support of the Application; and (iii) any and all additional papers in support of the
Application;
31.5.1.2 Any memorandum of points and authorities to be
submitted by a Party to the Dispute in opposition to the Application, and all other papers in
support of such memorandum of points and authorities, shall be personally served on the Neutral
Jurist and the other Party or Parties to the Dispute at least ten (10) business days before the date
of the Expedited ADR hearing; and
31.5.1.3 Any reply brief in support of the Application, and all
other papers in support of such brief, shall be personally served on the Neutral Jurist and the
other Party or Parties to the Dispute at least five (5) business days before the date of the
Expedited ADR hearing.
31.5.2 Subject to the requirements of California law, the Neutral Jurist
shall be authorized to interpret and apply the provisions of this Agreement only, and shall have
no power to modify or change any of the provisions of this Agreement in any manner.
31.5.3 The Neutral Jurist shall have the power and authority to award
any monetary, equitable, provisional, extraordinary, ex parte, or other relief or remedy that any
Superior Court in the State of California could order or grant under California law with respect to
the type of Disputes arising under this I/M Agreement, including, but not limited to, the granting
or issuing of any (i) compensatory damages, to the extent proven, for breach of this UM
Agreement; (ii) declaratory relief; (iii) specific performance of any duty or obligation arising
under this Agreement; (iv) temporary, preliminary, or permanent injunctive relief; (v)
extraordinary relief, such as a writ of mandate; or (vi) monetary sanctions or penalties for the
violation of or non-compliance with any ruling, award, determination, or other order of the
Neutral Jurist. The existence of this UM Agreement shall not preclude the availability of
equitable remedies such as specific performance, mandamus, or injunctive or declaratory relief in
connection with any Expedited ADR proceeding. However, all defenses to such relief otherwise
may be interposed by any Party against whom such relief is sought.
31.5.4 The Neutral Jurist shall conduct the Expedited ADR in such a
manner that a final award or determination ("Final Determination") is made or rendered as soon
as is reasonably practicable, but in no event later than thirty (30) days after service of the
Expedited ADR Notice or five (5) business days after the conclusion of the Expedited ADR
hearing, whichever is earlier in time, unless the Parties to the Dispute otherwise agree in writing
to extend such deadlines. In rendering the Final Determination, the Neutral Jurist shall set forth
in writing the reasons for the decision. Immediately upon being served on the Parties, the Final
Determination, shall be final and binding upon the Parties to the Dispute without appeal or
review except as permitted by the Arbitration Act. Any Party to the Dispute may apply to the
Orange County Superior Court, pursuant to sections 1285 through 1294.2, inclusive, of the
Arbitration Act, as such Act may be amended, for entry and enforcement of a judgment based on
the Final Determination. Pursuant to Code of Civil Procedure section 1290.4(a), service of any
application or petition for entry and enforcement of a judgment pursuant to sections 1285
through 1294.2, inclusive, of the Arbitration Act, as such Act may be amended, shall be made by
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sending a copy of such application or petition to the other Parry or Parties to the Dispute by
overnight courier service at the addresses specified in or designated pursuant to the notice
provisions of this I/M Agreement.
31.5.5 The prevailing Party or Parties to the Dispute shall be entitled to
recover its/their attorney's fees, costs, and expenses which are reasonably incurred from the non -
prevailing Party or Parties to the Dispute. In addition, the Neutral Jurist shall award to the
prevailing Party or Parties to the Dispute its/their share of (a) the fees and expenses of the
Neutral Jurist; and (b) the administrative fees of the Expedited ADR.
31.5.6 Pursuant to section 1283.1 of the Code of Civil Procedure, the
provisions of section 1283.05, and any amendments to such sections, are hereby made applicable
to the resolution of any Dispute under this Agreement. However, notwithstanding the provisions
of subdivision (e) of section 1283.05, each Party to the Dispute may take up to three depositions
of its choosing without prior approval of the Neutral Jurist.
[Remainder of page intentionally left blank.]
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31.5.7 The period of time from service of the Expedited ADR Notice
until final resolution pursuant thereto shall extend all dates and periods of time provided for in
this I/M Agreement and the Site Conveyance Agreement.
IN WITNESS WHEREOF, this I/M Agreement is agreed and entered into as of the date
first written above.
TUSTIN UNIFIED SCHOOL DISTRICT
La-fi
Anthony Soria, Chief Financial Officer
COMMUNITY FACILITIES DISTRICT NO. 06-1
OF THE TUSTIN UNIFIED SCHOOL DISTRICT
LOU
Authorized Officer
APPROVED AS TO FORM:
BOWIE, ARNESON, WILES & GIANNONE
Legal Counsel to the Tustin Unified
School District and CFD No. 06-1 of
the Tustin Unified School District
Wendy H. Wiles
CITY OF TUSTIN
L80
Charles E. Puckett, Mayor
ATTEST:
Jeffrey C. Parker, City Clerk
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COMMUNITY FACILITIES DISTRICT NO. 2014-1
OF THE CITY OF TUSTIN
Authorized Officer
APPROVED AS TO FORM:
David Kendig, City Attorney
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1089890.1
EMBIT "A"
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EXHIBIT "B"
MMIBIT "C"
School Facildes Cost & Revenue Assumdonsrl
Computation of Supplements! DU Mitigation Payment & City COC DM=lt
Estimated Cost of Heritage Expansion (K-5)
Estimated Cost of 6.12 School PmJect (Site No. 2):
Site Development
Middle School Classrooms
High Schaal Ctassroloms & Gymnasium
Total 8.12 School Pr*d Costs
Estimated Costs to Debar "Construction Rudy" 6.12 Protect Ste
$6,565,615
$3,017,892
17,806,382
44.7.787
$86,582,036 65,552,095
3,000,000
Total Estimated Costs of School Facilities Prated ST5,11T M
Comm*Man of 14clueal Fgjttes Pnated Cast Par Drwellina Urdb
Total Estimated Costs of Schaal Facilities Pried
$76,117,850
Less Coy Payment of Expected Sale Proceeds def Site #1
(15,000.000)
Lose Available Funding from CFD MI & Other Sources
r►.Bzs.9latl
Portion of Schaal Prated to Be Funded by Cty Property & SPC Property
$52.499,836
Lose Portion or Project Funding Derived from Non4tesMderrilai Development
9
$61,102,130
Allocation of Net School Facilites Protect to City Property and SPC Property:
Esbmted Boras Proceeds and Contractual Mitigation Payments from SPC Property
$11,528,898
Estimated Bond Proceeds and Contractual Millgation Payments from CRY Property
49, 1.334
Portion of Schaal Facilities Protect to Be Funded by Residential Development
$61,221AS7
P9 1va8an ofSundemerhal DU 01116;lion Payment & City CDC DWMA
sing amojr stag a
Aasstment Units Attached Detached
Land Use Cateaw (Dweft Type) markat-Rate Affordebles (SFAs) (BPDs) TOW
No. of Dwelling Urns to Be Constructed
Assumed Square Footage Per Dwelling Unt
Aggregate Square Footage By Dwelling Type
Mitigation Funding By Dwelling Type:
Contraddaal Moigetion Payments
Net Bond Proceeds By Denting Type
Total Mitigation Funding
2,000 200 325 310 2,035
850 905 1.800 2,700 1,165
1,700,000 181,000 585,000 837,000 3,303,000
$5,712,000 $60.160 51,068,800 52,612,320 $11.098,080
22.3 7,278JW ON -LOW MLMM
$28,101.622 $1.437,405 $9,242,227 $10,809,800 $49.691.184
DU MaMeft Pwmer4 & City COC Owma §14,0111 $7187 =438 WM93
pl as cosi and rawoaue pvd d, I aro dwwa In 2oten5dG0w ane aresvW to , puraumomua prorlaraa b ft AO a
TTI
RATE AND METHOD OF APPORTIONMENT OF
SPECIAL TAXES
FOR
TUSTIN UNIFIED SCHOOL DISTRICT
COMMUNITY FACILITIES DISTRICT NO. 15-2
(TUSTIN LEGACY)
A Special Tax shall be levied on all Assessor's Parcels in Tustin Unified School District Community
Facilities District No. 15-2 ("CFD No. 15-2") and collected each Fiscal Year commencing in Fiscal Year
2015-2016, in an amount determined through the application of the Rate and Method of Apportionment
as described below. All of the real property in CFD No. 15-2, unless exempted by law or by the provisions
hereof, shall be taxed for the purposes, to the extent and in the manner herein provided.
A.
The terms hereinafter set forth have the following meanings:
"Acre or Acreage" means the land area of an Assessor's Parcel as shown on an Assessor's Parcel
Map, or if the land area is not shown on an Assessor's Parcel Map, the land area shown on the
applicable final map, parcel map, condominium plan, or other recorded County parcel map. The
square footage of an Assessor's Parcel is equal to the Acreage of such parcel multiplied by 43,560.
"Act" means the Mello -Roos Community Facilities Act of 1982, being Chapter 2.5, Division 2 of
Title 5 of the California Government Code.
"Administrative Expenses" means the following actual or reasonably estimated costs directly
related to the administration of CFD No. 15-2: the costs of computing the Special Taxes and
preparing the annual Special Tax collection schedules (whether by the District or designee thereof
or both); the costs of collecting the Special Taxes (whether by the County or otherwise); the costs
of remitting the Special Taxes to the Trustee; the costs of the Trustee (including its legal counsel)
in the discharge of the duties required of it under the Indenture; the costs to the District, CFD No.
15-2 or any designee thereof of complying with arbitrage rebate requirements; the costs to the
District, CFD No. 15-2 or any designee thereof of complying with District, CFD No. 15-2 or
obligated persons disclosure requirements of applicable federal and state securities laws and the
Act; the costs associated with preparing Special Tax disclosure statements and responding to
public inquiries regarding the Special Taxes; the costs of the District, CFD No. 15-2 or any
designee thereof related to an appeal of the Special Tax; the costs associated with the release of
funds from any escrow account, if any; and the District's annual administration fees and third party
expenses. Administrative Expenses shall also include amounts estimated or advanced by the
District or CFD No. 15-2 for any other administrative purposes of CFD No. 15-2, including
attorney's fees and other costs related to commencing and pursuing to completion any foreclosure
as a result of delinquent Special Taxes.
"Affordable Units" means residential dwelling units located on one or more Assessor's Parcels
of Residential Property that are subject to deed restrictions, resale restrictions, and/or regulatory
agreements recorded in favor of the City providing for affordable housing. Affordable Units
constructed within the CFD shall be designated by the CFD Administrator in the chronological
RMA -08/19/15 - 1 .
EXHIBIT "E"
order in which the building permits for such units are issued. However, if the total number of
Affordable Units constructed exceeds 200 then the units exceeding such total shall be not be
considered Affordable Units and shall be assigned to a Land Use Class based on the type of use
and Residential Floor Area for each such units.
"Apartment Property" means all Assessor's Parcels of Residential Property for which a building
permit has been issued for construction of a residential structure with two or more dwelling units
all of which are offered for rent to the general public and which cannot be separately purchased by
individual homebuyers and which are not considered to constitute Affordable Units or Senior
Units.
"Assessor's Parcel" means a lot or parcel shown in an Assessor's Parcel Map with an assigned
Assessor's Parcel number.
"Assessor's Parcel Map" means an official map of the County Assessor of the County
designating parcels by Assessor's Parcel number.
"Assigned Special Tax" means for Developed Property the Assigned Special Tax Rates as shown
in Table 1, that can be levied in any Fiscal Year on any Assessor's Parcel.
"Backup Special Tax" means the Special Tax per Residential Dwelling Unit as described in
Section `D'
"Board" means the Board of Education of Tustin Unified School District acting as the legislative
body of CFD No. 15-2.
"Bonds" means any bonds or other debt (as defined in Section 53317(d) of the Act), whether in
one or more series, issued by CFD No. 15-2 under the Act.
"Buildout" means, for CFD No. 15-2, that all expected building permits to the extent of applicable
zoning have been issued, but not less than 2,835 dwelling units.
"CFD Administrator" means an official of the District, or designee thereof, responsible for
determining the Special Tax Requirement and providing for the levy and collection of the Special
Taxes.
"CFD No. 15-211 means Community Facilities District No. 15-2 of Tustin Unified School District,
as identified on the boundary map for CFD No. 15-2.
"CFD School Facilities" means either $38.6 million in 2014 dollars, which shall increase by the
Index on July 1, 2015, and on each July 1 thereafter, or such lower number as (i) shall be
determined by the CFD Administrator as sufficient to provide all of the school facilities of CFD
No. 15-2 as more fully described in the Mitigation Agreement or (ii) shall be determined by the
Board concurrently with a covenant that it will not issue any more Bonds to be supported by
Special Taxes levied under this Rate and Method of Apportionment as described in Section E.
"City" means the City of Tustin.
RMA -08/19/15 -2-
"County" means the County of Orange.
"Developed Property" means, for each Fiscal Year, all Taxable Property, exclusive of Taxable
Public Property and Taxable Property Owner Association Property, for which a building permit
for new construction was issued after January 1, 2015 and prior to July 1 of the current Fiscal Year.
"District" means the Tustin Unified School District.
"Final Subdivision" means a subdivision of property by recordation of a final map, parcel map,
and lot line adjustment, if any, pursuant to the Subdivision Map Act (California Government Code
Section 66410 et seq.) or recordation of a condominium plan pursuant to California Civil Code
1352 that creates individual lots for which building permits may be issued without further
subdivision.
"Fiscal Year" means the period starting July 1 and ending on the following June 30.
"Future Facilities Costs" means the CFD School Facilities minus (i) school facility costs
previously paid from the Improvement Fund, (ii) moneys currently on deposit in the Improvement
Fund, and (iii) moneys currently on deposit in an escrow fund that are expected to be available to
finance school facilities costs.
"Homebuyer" means the initial purchaser of one or more dwelling units of Residential Property
for which the City of Tustin has signed off on the building permit for occupancy.
"Improvement Fund" means one or more accounts specifically identified in the Mitigation
Agreement and one or more Indentures to hold funds which are currently available for expenditure
to acquire or construct CFD School Facilities eligible under the Act.
"Indenture" means the indenture, fiscal agent agreement, resolution or other instrument pursuant
to which Bonds are issued, as modified, amended and/or supplemented from time to time.
"Index" means the greater of the Marshall & Swift Class B Construction -Western Region Index
or two percent (20/o), from a base date of July 1, 2014, and increasing annually thereafter beginning
on July 1, 2015.
"Land Use Class" means any of the classes listed in Table 1 below.
"Maximum Special Tax" means the greater of the Assigned or Backup Special Tax determined
in accordance with Table 1 and Section C below, that can be levied in any Fiscal Year on any
Assessor's Parcel.
"Mitigation Agreement" means that 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, to be executed prior to formation of CFD No. 15-2 and
subject to the herein provided Special Taxes.
"Non -Residential Property" means all Assessor's Parcels of Developed Property (excluding
Property Owner Association Property) for which a building permit permitting the construction of
RMA — 08/19/15 -3-
one or more non-residential units or facilities has been issued by the City of Tustin.
"Outstanding Bonds" means all Previously Issued Bonds which are deemed to be outstanding
under the Indenture after the first interest and/or principal payment date following the current
Fiscal Year.
"Previously Issued Bonds" means all Bonds that have been issued by IA No. 1 prior to the date
of prepayment.
"Property Owner Association Property" means, for each Fiscal Year, any property within the
boundaries of CFD No. 15-2 that was owned by a property owner association, including any master
or sub -association, as of January 1 of the prior Fiscal Year.
"Proportionately" means, for Developed Property, that the ratio of the actual Special Tax levy
to the Maximum Special Tax is equal for all Assessor's Parcels of Developed Property. For
Undeveloped Property, "Proportionately" means that the ratio of the actual Special Tax levy per
Acre to the Maximum Special Tax per Acre is equal for all Assessor's Parcels of Undeveloped
Property. The term "Proportionately" may similarly be applied to other categories of Taxable
Property as listed in Section E below.
"Public Property" means property within the boundaries of CFD No. 15-2 and as more
particularly defined as "City Property" in the Mitigation Agreement as of the date of its execution
that is owned by the City of Tustin, or will be irrevocably offered or dedicated to, or over, through
or under which an easement for purposes of public right-of-way has been granted, to the federal
government, the State, the County, the City of Tustin, the District, or any local government or
other public agency provided that any property leased by a public agency to a private entity and
subject to taxation under Section 53340.1 of the Act shall be taxed and classified according to its
use.
"Residential Floor Area" means all of the square footage of living area within the perimeter of
a residential structure, not including any carport, walkway, garage, overhang, patio, enclosed patio,
or similar area. The determination of Residential Floor Area for an Assessor's Parcel shall be
made by reference to the building permit(s) issued for such Assessor's Parcel.
"Residential Property" means all Assessor's Parcels of Developed Property for which a building
permit permitting the construction thereon of one or more residential dwelling units has been
issued by the City.
"Senior Unit" means either senior citizen housing, a residential care facility for the elderly or a
multilevel facility for the elderly as those facilities are defined under Section 65995.1(a) of the
California Government Code, as such exists as of January 1, 2013.
"Single -Family Attached Property" means all Assessor's Parcels of Residential Property for
which building permits have been issued for attached residential units which are not considered to
constitute Affordable Units or Senior Units.
"Single -Family Detached Property" means all Assessor's Parcels of Residential Property for
which building permits have been issued for detached residential units which are not considered
to constitute Affordable Units or Senior Units.
RMA - 08/19/15 .4-
"Special Tax" means the special tax to be levied in each Fiscal Year on each Assessor's Parcel
of Taxable Property within CFD No. 15-2 to fund the Special Tax Requirement.
"Special Tag Requirement" means that amount required in any Fiscal Year for CFD No. 15-2
to: (i) pay debt service on all Outstanding Bonds due in the calendar year commencing in such
Fiscal Year; (ii) pay periodic costs on the Bonds, including but not limited to, credit enhancement
on the Bonds due in the calendar year commencing in such Fiscal Year; (iii) pay Administrative
Expenses; (iv) pay any amounts required to establish or replenish any reserve funds for all
Outstanding Bonds; (v) pay for reasonably anticipated Special Tax delinquencies based on the
delinquency rate for the Special Tax levy in the previous Fiscal Year; and (vi) an additional amount
that when added to subparagraphs (i) through (v) does not exceed the aggregate amount of
Assigned Special Taxes that can be levied on Developed Property, which pending completion of
the School Facilities (as defined in the Mitigation Agreement) shall be used to fund School
Facilities (as defined in the Mitigation Agreement) and after completion of the School Facilities
such additional amount may be used by the District for any use consistent with applicable law.
"State" means the State of California.
"Taxable Property" means all of the Assessor's Parcels within the boundaries of CFD No. 15-2
which are not exempt from the Special Tax pursuant to law or Section F below.
"Taxable Property Owner Association Property" means, for each Fiscal Year, all Assessor's
Parcels of Property Owner Association Property that are not exempt from the Special Tax pursuant
to Section F below.
"Taxable Public Property" means, for each Fiscal Year, all Assessor's Parcels of Public Property
for which written consent has been provided by the property owner to the CFD allowing for the
levy of the Special Tax against such property.
"Trustee" means the trustee or fiscal agent under the Indenture.
"Undeveloped Properly" means, for each Fiscal Year, all Taxable Property not classified as
Developed Property, Taxable Public Property or Taxable Property Owner Association Property.
B. ASSIGNMENT TO LAND USE CATEGORIES
Each Fiscal Year, all Taxable Property within CFD No. 15-2 shall be classified as Developed
Property, Taxable Public Property, Taxable Property Owner Association Property, or
Undeveloped Property, and shall be subject to Special Taxes in accordance with this Rate and
Method of Apportionment determined pursuant to Sections C, D, and E below. Residential
Property shall be assigned to Land Use Classes 1 through l l as listed in Table 1 below based on
the type of use and the Residential Floor Area for each unit. Non -Residential Property shall be
assigned to Land Use Class 12.
C. SPECM TAX
1. Developed Property
RMA -0&119/15 - 5 -
(a). Maximum Special Tax
The Maximum Special Tax for each Land Use Class of Developed Property for Fiscal
Year 2014-15 shall be the greater of the Backup Special Tax as set forth in Section `D'
or the Assigned Special Tax as shown below in Table 1.
TABLE 1
Assigned Special Tax for Developed Property in
Tustin Unified School District Community Facilities District No. 15-2
(Tustin Legacy)
Fiscal Year 2014-2015
Land
Use
Class
Description
Residential
Floor
..Area
Assigned:
-.Special..;
Tax 0M/U. .
1
Single -Family
Detached Property
>=3,500 s.f.
$2175
2
1 Single -Family
Detached Property
3,000 - 3,499 s.f.
$1,985
3
Single -Family
Detached Property
2,500 — 2,999 s.f
$1,890
4
Single -Family
Detached PropeM
2,000 — 2,499 s.f.
$1,795
5
Single -Family
Detached Property
<2,000 s.f.
$1,700
6
Single Family
Attached Property
>=2,250 s.f.
$1,780
7
Single Family
Attached Property
2,000 -2,249 s.f.
$1700
8
Single Family
Attached Property
1,750 -2,199 s.f.
$1,620
9
Single Family
Attached Property
1 500 -1,749 s.f.
$19540
10
Single Family
Attached Property
< 1,500 s.f.
$1,460
11
Apartment Property
N/A
$810
12
Affordable Units
N/A
$300
13
Non -Residential Property
N/A
N/A
(b). Increase in the Assigned Special Tax
On each July 1, commencing on July 1, 2015, the Assigned Special Tax listed in
Table 1 above shall be increased by two percent (20/6).
(c). Multiple Land Use Classes
In some instances an Assessor's Parcel of Developed Property may contain more
than one Land Use Class. The Maximum Special Tax levied on an Assessor's
Parcel shall be the sum of the Maximum Special Taxes for all Land Use Classes
located on that Assessor's Parcel.
2. Undeveloped Property, Taxable Public Property, and Taxable Property Owner
Association Property
(a). Maximum Special Tax
RMA -09/19/15 .6-
The Fiscal Year 2014-1015 Maximum Special Tax for Undeveloped Property,
Taxable Public Property, and Taxable Property Owner Association Property shall
be $23,475 per Acre. On each July 1, commencing on July 1, 2015, the Maximum
Special Tax for Undeveloped Property, Taxable Public Property and Taxable
Property Owner Association Property shall be increased by two percent (2%).
D. BACKUP SPECIAL TAX
1. Backup Special Tax Rates
The initial Backup Special Tax Rates established for each of the product types proposed to
be developed as Single -Family Attached Property, Single -Family Detached Property and
taxed within the CFD commencing Fiscal Year 2014-15 are as shown below in Table 2:
TABLE 2
Backup Special Tax Rates for Developed Property in
Tustin Unified School District Community Facilities District No. 15-2
(MCAS/Legacy)
Fiscal Year 2014-1015
2. Increase in the Backup Special Tax Rates
On each July 1, commencing on July 1, 2015, the Backup Special Tax listed in Table 2 above
shall be increased by two percent (20/6).
E. METHOD OF APPORTIONMENT OF THE SPECIAL TAX
Commencing with Fiscal Year 2015-2016 and for each following Fiscal Year, the Board shall
determine the Special Tax Requirement and shall levy the Special Tax on Developed Property at
the Assigned Special Tax Rates as set forth in Table 1, as adjusted each July 1 and, if necessary,
on all other Taxable Property until the total Special Tax levy equals the Special Tax Requirement.
The Special Tax shall be levied each Fiscal Year as follows:
First: The Special Tax shall be levied Proportionately on each Assessor's Parcel of Developed
Property at the applicable Assigned Special Tax;
Second: If additional monies are needed to satisfy the Special Tax Requirement after the first step
has been completed, the Special Tax shall be levied Proportionately on each Assessor's Parcel of
Undeveloped Property at up to 100% of the Maximum Special Tax for Undeveloped Property;
RMA -08/19115 -7-
Backup
Product
Spec>AL Tax
Descripfiopt
Per D/[T
Single -Family Detached Property
$1,890
Single -Family Attached Property
$1,620
2. Increase in the Backup Special Tax Rates
On each July 1, commencing on July 1, 2015, the Backup Special Tax listed in Table 2 above
shall be increased by two percent (20/6).
E. METHOD OF APPORTIONMENT OF THE SPECIAL TAX
Commencing with Fiscal Year 2015-2016 and for each following Fiscal Year, the Board shall
determine the Special Tax Requirement and shall levy the Special Tax on Developed Property at
the Assigned Special Tax Rates as set forth in Table 1, as adjusted each July 1 and, if necessary,
on all other Taxable Property until the total Special Tax levy equals the Special Tax Requirement.
The Special Tax shall be levied each Fiscal Year as follows:
First: The Special Tax shall be levied Proportionately on each Assessor's Parcel of Developed
Property at the applicable Assigned Special Tax;
Second: If additional monies are needed to satisfy the Special Tax Requirement after the first step
has been completed, the Special Tax shall be levied Proportionately on each Assessor's Parcel of
Undeveloped Property at up to 100% of the Maximum Special Tax for Undeveloped Property;
RMA -08/19115 -7-
F.
Third: If additional monies are needed to satisfy the Special Tax Requirement after the first two
steps have been completed, then the Special Tax shall be levied Proportionately on each Assessor's
Parcel of Developed Property for which the applicable Maximum Special Tax is equal to the
Backup Special Tax up to the Maximum Special Tax;
Fourth: If additional monies are needed to satisfy the Special Tax Requirement after the first three
steps have been completed, then the Special Tax shall be levied Proportionately on each Assessor's
Parcel of Taxable Property Owner Association Property at up to the Maximum Special Tax for
Taxable Property Owner Association Property;
Fifth: If additional monies are needed to satisfy the Special Tax Requirement after the first four
steps have been completed, then the Special Tax shall be levied Proportionately on each Assessor's
Parcel of Taxable Public Property at up to the Maximum Special Tax for Taxable Public Property.
No Special Tax shall be levied on up to 3.5 Acres of Property Owner Association Property or on
Public Property that has not been classified as Taxable Public Property. Tax-exempt status will be
assigned by the CFD Administrator in the chronological order in which property becomes Property
Owner Association Property. However, should an Assessor's Parcel no longer be classified as
Property Owner Association Property, its tax-exempt status will be revoked.
Public Property or Property Owner Association Property that is not exempt from the Special Tax
under this section shall be subject to the levy of the Special Tax and, if required, shall be taxed
Proportionately as part of the fourth and fifth steps in Section E.
G. APPEALS AND INTERPRETATIONS
Any landowner or resident who feels that the amount of the Special Tax levied on such
landowner's or resident's Assessor's Parcel is in error may submit a written appeal to CFD No.
15-2. The CFD Administrator shall review the appeal and if the CFD Administrator concurs, the
amount of the Special Tax levied shall be appropriately modified.
The Board may interpret this Rate and Method of Apportionment of Special Tax for purposes of
clarifying any ambiguity and make determinations relative to the amount of Administrative
Expenses and any landowner or resident appeals. Any decision of the Board shall be final and
binding as to all persons.
RMA -08/19/15 - 8 -
H. MANNER OF COLLECTION
The Special Tax will be collected in the same manner as ordinary ad valorem property taxes or in
such other manner as the Board shall determine, including direct billing of the affected property
owners.
I. PREPAYMENT OF SPECIAL TAX
The following provisions are intended to allow for the prepayment of the special tax, in full or in
part, and its associated obligations under this Rate & Method of Apportionment and as also
described in the Mitigation Agreement. Such prepayment can occur either prior to of subsequent
to the issuance of bonds.
1. Prepayment in Full
The obligation of an Assessor's Parcel to pay the Special Tax may be prepaid and permanently
satisfied as described herein provided that a prepayment may be made only for Assessor's Parcels
of Developed Property or Undeveloped Property for which a building permit has been issued, and
only if there are no delinquent Special Taxes with respect to such Assessor's Parcel at the time of
prepayment. The owner of Assessor's Parcels intending to prepay the Special Tax obligation shall
provide the CFD Administrator with written notice of intent to prepay. Within 30 days of receipt
of such written notice, the CFD Administrator shall notify such owner of the prepayment amount
for such Assessor's Parcel. The CFD Administrator may charge a reasonable fee for providing this
service. Prepayment must be made not less than 60 days prior to the next occurring date that notice
of redemption of Bonds from the proceeds of such prepayment may be given by the Trustee
pursuant to the Indenture.
The Special Tax Prepayment Amount (defined below) shall be calculated as summarized below
(capitalized terns as defined below):
Bond Redemption Amount plus Redemption Premium plus Defeasance Amount plus
Administrative Fees and Expenses less Reserve Fund Credit less Capitalized Interest Credit
Total: equals Prepayment Amount
As of the proposed date of prepayment, the Special Tax Prepayment Amount (defined below) shall
be calculated as follows:
1. Confirm that no Special Tax delinquencies apply to such Assessor's Parcel.
2. For Assessor's Parcels of Developed Property, compute the Maximum Special Tax for the current
Fiscal Year applicable for the Assessor's Parcel to be prepaid. For Assessor's Parcels of
Undeveloped Property (for which a building permit has been issued) to be prepaid, compute the
Maximum Special Tax for the current Fiscal Year applicable for that Assessor's Parcel as though
it was already designated as Developed Property, based upon such building permit.
3. Divide the Maximum Special Tax computed pursuant to paragraph 2 by the total estimated
Maximum Special Tax for CFD No. 15-2 based on the Developed Property Special Tax which
could be levied in the current Fiscal Year on all expected development through Buildout, excluding
RMA -08/19/15 -9-
any Assessor's Parcels for which the Special Tax has been prepaid.
4. Multiply the quotient computed pursuant to paragraph 3 by the Previously Issued Bonds to
compute the amount of Previously issued Bonds to be retired and prepaid (the "Bond Redemption
Amount").
5. Multiply the Bond Redemption Amount computed pursuant to paragraph 4 by the applicable
redemption premium (e.g., the redemption price -1000/o), if any, on the Previously Issued Bonds to
be redeemed (the "Redemption Premium").
6. Compute the current Future Facilities Costs.
7. Multiply the larger quotient computed pursuant to paragraph 3(a) or 3(b) by the amount determined
pursuant to paragraph 6 to compute the amount of Future Facilities Costs to be prepaid (the "Future
Facilities Amount").
8. Compute the amount needed to pay interest on the Bond Redemption Amount from the first bond
interest and/or principal payment date following the current Fiscal Year until the earliest
redemption date for the Previously Issued Bonds.
9. Determine the Special Tax levied on the Assessor's Parcel in the current Fiscal Year which has
not yet been paid.
10. Compute the minimum amount the CFD Administrator reasonably expects to derive from the
reinvestment of the Special Tax Prepayment Amount less the Future Facilities Amount
Administrative Fees and Expenses from the date of prepayment until the redemption date for the
Outstanding Bonds to be redeemed with the prepayment.
11. Add the amounts computed pursuant to paragraphs 8 and 9 and subtract the amount computed
pursuant to paragraph 10 (the "Defeasance Amount").
12. Verify the administrative fees and expenses of CFD No. 15-2, including the costs of computation
of the prepayment, the costs to invest the prepayment proceeds, the costs of redeeming Bonds, and
the costs of recording any notices to evidence the prepayment and the redemption (the
"Administrative Fees and Expenses").
13. if reserve funds balances, if any, are at or above 100% of the reserve requirement (as defined in
the Indenture) on the prepayment date, a reserve fund credit shall be calculated as a reduction in
the applicable reserve fund for the Previously Issued Bonds to be redeemed pursuant to the
prepayment (the "Reserve Fund Credit'). No Reserve Fund Credit shall be granted if reserve funds
are below 100% of the reserve requirement.
14. If any capitalized interest for the Outstanding Bonds will not have been expended at the time of
the first interest and/or principal payment following the current Fiscal Year, a capitalized interest
credit shall be calculated by multiplying the quotient computed pursuant to paragraph 3 by the
expected balance in the capitalized interest fund or account under the Indenture after the next
pending interest and/or principal payment for which bonds can be called as a result of the
prepayment (Capitalized Interest Credit).
RMA -09/19/15 -10-
For a prepayment in full, the Special Tax Prepayment is equal to the sum of the amounts computed
pursuant to paragraphs 4, 5, 7, 11 and 12, less the amounts computed pursuant to paragraphs 13
and 14 and for a partial prepayment the Special Tax Prepayment is equal to the sum of the amounts
computed pursuant to paragraphs 4, 5, 7, 11 and 12, less the amounts computed pursuant to
paragraphs 13 and 14 multiplied by a discrete percentage (expressed as a decimal) ranging between
0 and 100% (the "Prepayment Amount").
From the Prepayment Amount, the amounts computed pursuant to paragraphs 4, 5, 11, 13 and 14
shall be deposited into the appropriate fund as established under the Indenture and be used to retire
Previously Issued Bonds or make debt service payments. The amount computed pursuant to
paragraph 10 shall be retained by CFD No. 15-2.
The Special Tax Prepayment Amount may be sufficient to redeem other than a $5,000 increment
of Bonds. In such cases, the increment above $5,000 or integral multiple thereof will be retained
in the appropriate fund established under the Indenture to be used with the next prepayment of
Bonds or to make debt service payments.
As a result of the payment of the current Fiscal Year's Special Tax levy as determined under
paragraph 7 (above), the CFD Administrator shall remove the current Fiscal Year's Special Tax
levy for such Assessor's Parcel from the County tax rolls. With respect to any Assessor's Parcel
that is prepaid, the Board shall cause a suitable notice to be recorded in compliance with the Act,
to indicate the prepayment of the Special Tax and the release of the Special Tax lien on such
Assessor's Parcel, and the obligation of such Assessor's Parcel to pay the Special Tax shall cease.
Notwithstanding the foregoing, no Special Tax prepayment shall be allowed unless, at the time of
such proposed prepayment, the amount of Maximum Special Tax that may be levied on Taxable
Property within CFD No. 15-2 after excluding 3.5 Acres of Property Owner Association and all
Acreage of Taxable Public Property, if any, both prior to and after the proposed prepayment is at
least 1.1 times the maximum annual debt service on all Previously Issued Bonds, plus the cost of
annual CFD administration.
J. TERM OF SPECIAL TAX
The Special Tax shall be levied for a period not to exceed forty years commencing with Fiscal
Year 2016-2017.
RMA -08/19/15 -H-
1.
E KMff "F"
SCHOOL FACILITIES PROJECT AND SOURCES OF FUNDING
The Sources of Funding for Project Costs are only the following and TUSD will use only fiords for the
School Facilities Project (defined in this I/M Agreement) generated from development of property
within the City/CFD, TUSD/CFD and CFD No. 06-1. TUSD is not obligated to use general funds or
any other TUSD fimds except those specifically identified in this Exhibit "F".
The following estimated Sources of Funding for Project Costs and Estimated Costs of the School
Facilities Project are estimates based on the following development assumption:
Assumed Development (2,835 Units) on the City Property and other DU = 3,968 DU per
Legacy Vision Plan
Estimated Sources of Funding for Project Costs:
TUSD/JCFA (Net Bond Proceeds)
TUSD/CFD (Net Bond Proceeds based on 2,835 DU)
TOTAL
City Contribution (Described in Section 5 (c) of the
I/M Agreement)
Contract%W Mitigation Payments & Other Funds
2014 Fsfimated Total
F-1
$ 7,858,426
$38.593.074
$46,451,500
$15,000,000
$23.575.436
$85,026,936
Estimated Costs of School Facilities Project:
EStlrnated Square Footage
Building/instruction Space
6-0Sehool - Initial Project
Site Development
20 Classrooms (27.700 sq ft)
Administration Office (5,267 sq ft)
Kltchen/Cafeteria (3$866 sq ft)
Gym/Activity Center (2D,125 sq ft)
6-85choal Subtotal
9-12 School -Initial Project
Site Development
30 Classrooms (30,700 sq ft)
Administration Office (5.267 sq ft)
Kitchen/Cafeteria (12.365 sq ft)
Gym/Activity Center (20,129 sq ft)
9.12Sehool
IlerltageDrpanslon (22 Classrooms)
Total 6-22 School- initial Project
Total Ali Initial Projects
Construction RoodyAddidon
Road ExtenticnAmlitles
Fill/Rough Grade
Construction RaadySubtatal
Phase 3: Comments Grades 6-8
Phaco 1: Commence
construction Scenario First
Grades 9-12 Construction
23.863,850
Scenario First
Original Original Estimate
Current Current
Estimate (Base) (w/inflation)
Estimate Estimate
(Base) (w/Inflation)
2.615.737
3.017.892
O
O
23.863,850
16,SMS70
23.863,850
17.806.382
2.636.134
3,152.138
O
O
6,188,992
7,400,358
O
O
O
0
0
O
25,50016599
BaZ4719"
fit am
17.80 9=
O
0
2,625,737
3„017.892
".869.850
'15,520 338
19,809,850
22.924,729'
O
O
2,634134
8,.043.425
0
0
4180.932
7,240,445.
30,072,562
12.934946
20,072,862
11.621,162
29,94 ,422
31%49,284
4Z38""
47,7436653
5,=%1Y0
4564=5
512944M
61511Vr8lsi
58.247.068
71.605,237
so a47A66
68.552,035
6%545.21S
75.272,052
60.543.2!5
77,117.8SOr
3,500,000
1.5M000
2-900.000
3,900`000
1,500.000
1,500%000
21500.000
3,800000
9.000.000
9.0006000
3,01011%000
3AIMO00
Total All Projects with Construction ReadyAddition 83,848.215 7$172, 63,34.225 786217.860
ONe1nw1 _.rt11eltewlPhn�{na ,m 9.6�L l.edw,wd � 1e�11etlew/Phs�lw�® R.RtR
6-12 Sim Development- 4 years 8-12 site Development- 4 vests
6-8 School - S years 6.6 School - 7 years (6 years from present)
9-12 School - 7 wars 9-iZ school -4 years (8 veers from preseM
Morttaso 6XP - 6 years "Witess Brp - 6 wars
* Not a construction timeline, but an example of seven years of construction inflation. It should be noted
that current inflation is between 1.5 — 2.0 percent.
F-2
2. City/CFD, including the SPC Property, has been established by the City. The TUSD/CFD, which includes
development and projects on City Property is contemplated. The St. Anton Project and Legacy Villas
Project are excluded from the City/CFD and the IVSD/CFD.
TUSD/CFD portion of the Funding Sources will escalate at 2% per year. The City/CFD funding will
escalate at 2% per year and will provide that TUSD will receive a share of the special taxes, proportional
to the proposed bond proceeds for the School Facilities Project.
The Project Costs may escalate at a percentage greater than the above-described escalation of the available
Project Funds shown above, if any, and depending upon the timing/phasing of construction, the Project
Costs may exceed the amount of Project Funds available for the proposed School Projects.
F-3
EXIMIT"G"
SITE CONVEYANCE AGREEMENT
Exhibit "G"
ALMEAMER 80VIE0
joMe-MMUM
VBMYILwlu3s*
PAMUCTAILGIANNONS
RORMLANSLOW
RRIANW.5M=
JEFFREM HOSUNSON
JEFFREY W. FREY
MA77HEWT. NICHOLS
TYLER LbWMEZ
GAPROFMONALCORPORATION
Bowm, ARNEsm,, Wins & GL&NWONE
AFAMMMMUMMKOPROMMOMLCORPORMIGM
"nW="L%W
4220 CAbWW DMIS
NEWPORT DRUM CAIMRMA2290
(OMUS.&M
..........
I Sir
-*--*,S. ON
3 T
1JEC -MC
(NO"94M
FAX(9M8U4M
Dines Activities
August 7,2015 Agenda deadline for TUSD August 24, 2015 Board
meeting.
MWAURMH
UMC6
Prior to August 24, 2015 Tustin Unified School District CTUSV) receives letter
from the City requesting initiating of CFD No. 15-2
formation. [This will be'in the same format as the City
letter dated February 4, 2015 regarding CFD No. 15-1
formation.]
August 24, 2015 T_UID Board Meeting
The Board adopts a Resolution for the cancellation of the
formation proceedings of proposed CFD No. 15-1.
The Board adopts a Resolution approving the IN
Agreement and its exhibits.
The Board adopts Resolution of Intention to Form proposed
CFD No. 15-2 and calls a public Hearing for September 28,
2015, on formation of the proposed CFD No. 15-2.
(§ 53321)'
I All section references are to the California Goveranieut Code unless otherwise noted.
9AW&Cl/184914
EXHIBIT "ll"
Bowm, ARNwoN, Wums & GLwNONE
Tustin Unified School District — Proposed CFD No. 2015-2 Formation Proceedings
Calendar of Events
Page 2
Dates Aedvftw
August 24, 2015 (continued) Board adopts Resolution Declaring Intention to Incur
Bonded indebtedness and calls a public hearing for
September 28, 2015. (§ 53345)
Board adopts Resolution Approving Boundary Map for
CFD No. 15-2. (§ 53321(a) and Streets and Highways Code
§ 3110, et seq.)
August 25, 2015 Orange County Registrar of Voters is requested to review
the number of registered voters (if any) included within
CFD No. 15-2.
August 25, 2015 City Council meeting of the City of Tustin ("LWI
approving the Implementation and Mitigation Agreement
CW Agreement") and its exidbits.
On or before August 31, 2015 A copy of the Resolution of Intention to form CFD No. 15-2
is filed with the City ofTustin. (153315.6)
TUSD executes and files a Notice of Exemption (CEQA) as
to formation of CFD No. 15-2 of TUSD with County Clerk
and post at TUSD posting location(s). Statute of limitations
for CEQA challenges expires 35 days after filing. (Public
Resource Code § 21167)
September 1, 2015 City Council meeting to take action to authorize voting in
proposed CFD No. 15-2 election. [This can also be done at
the City Council meeting of September 15, 2015.)
September 11, 2015 Agenda deadline date for Board meeting regarding CFD No.
15-2 Hearings of September 28, 2015.
On or before September 11, Clerk of the Board endorses and files Boundary Map of the
2015 proposed CFD No. 15-2 with TUSD and Boundary Maps
(No later than IS days prior to are recorded with County Recorder. (Streets and Highways
public hearing) Code §§ 3111 and 3112)
On or before September 11, Notice of Public Hearing and Landowner Waiver and
2015 (continued) Consent forms are mailed to City as legal landowner in the
proposed CFD No. 15-2. (§ 53322.4)
BAW&QnMI4
Bowm, Anmm,, Wins & GIANNoNE
Tustin Unified School District — Proposed CFD No. 2015-2 Formation Proceedings
Calendar -of Events
Page 3
ages Activldes
September 14, 2015 Submit to newspaper a request for publication of Notices of
public hearings to be published no later than September 21,
2015.
September 15, 2015 City Council meeting to take action to authorize voting in
proposed CFD No. 15-2 election.
On or before September 21, Publication of Notices of Public Hearings on formation and
2015 incurring bonded indebtedness of CFD No. 15 -2 in a
(At least 7 days prior to public newspaper of general circulation in the TUSD. (§ 53322)
hearing)
Verify receipt of proof of land ownership and executed
Waiver and Consent documents are received from City as
sole landowner of the property subject to proposed special
taxes within the proposed CFD No. 15-2, based on
anticipated receipt of Waiver and Consent documents from
City described as sole landowner in CFD No. 15-2. CFD
No. 15-2 designates TUSD/CFO as Election Official who
concurs as to holding election on a shortened time frame if
election occurs less than 125 days after Resolution of
Formation was adopted. (§ 53326(a))
Districts posts notices of public hearings.
On or before September 25, Deadline for Jeff Hamill of Special District Financing &
2015 Administration to complete and file CFD No. 15-2 Report
with TUSD. (§ 53321.5)
Deadline for County Registrar of Voters to confirm the
number of registered voters (if any) within CFD No. 15-2.
September 25, 2015 Agenda deadline for District Board meeting of October 12,
2015.
September 28, 2015 Public Rearms. (§ 53325)
If more than 500A of the registered voters file written
9AW& CV184914
Bowm, ARNwoN, WILES & GIANNoNE
Tustin Unified School District — Proposed CFD No. 2015-2 Formation Proceedings
Calendar of Events
Page 4
Dates A
protests, no further proceedings may occur. If no majority
protest, the Board takes the following actions:
Board adopts Resolution of Formation to establish CFD No.
15-2, and levy special tax (Section 53325.1); ells an
election for submitting to the registered voters of the CFD
the question of whether to levy any special taxes? The
Special Election will be conducted on January 24, 20113 and
is expected to be a "walk-in" election.
Board adopts Resolution Determining Necessity to incur
Bonded Indebtedness and calling special tax and bond
election. (§ 53352)
Special Tax and Bond election conducted. (§ 53350)
Board adopts Resolution Canvassing Election Remits.
(§ 53328)
Board conducts First Reading of Ordinance Authorizing
Levy of Special Tax is conducted. (§§ 53316 and 36900, et
seq.)
On or before October 5, 2015 Post copy of proposed Ordinance at the District's normal
posting locations.
October 12, 2015 Board Meeting.
Board Conducts Second reading of Ordinance Authorizing
Levy of the Special Tax and adopts the Ordinance.
On or before October 13, 2015 File Notice of Special Tax Lien with County Recorder.
(§ 53328.3 and Streets and Highways Code § 3114.5(b))
2 The election questions wffl be combined into a single ballot measure.
s This election date presumes that there aro less than 12 registered voters within the CFD and that
all of the landowner(s) within the CFU consent to waiving the Election Code requirements.
BAW&Q/184914
BOWIE, ASNESON, WILES & GIANNoNE
Tustin Unified School District — Proposed CFD No. 2015-2 Formation Proceedings
Calendar of Events
Page 5
Data ActimWa
On or before October 27, 2015 Publish and post Notice of Adoption and Summary of
(within IS days after adopted Ordinance.
adoption)
November 11, 2015 Special Tax Ordinance becomes effective. (§ 36937)
November 27, 2015 Statute of limitations expires to challenge special tax levy
approved by 213 of the voters.(§ 53341)
BAWW184914
'
"
Exblbit 'T'
N
Students
PRIORITY ACCESS
Polley -5122
A priority access policy for each of the schools of tine Bastin Unified School District financed in
whole or in part by the proceeds of community faa'lities district taxes shall be established by the
Governing Board on recommendation of the Superintendeu. Priority attendance access for a
specific school facility shall be given to students residing in any CPD whose residents have paid
special taxes to finance the construction of that facility. Additional degrees of priority will reflect
the proportion ofeach school facility's hording which isprovided through do CFD. TbeBoard dWl
review, the priority access policy and make adjustments as deemed necessary. Actual CFD boundary
descriptions as set forth by the Board shall be kept on file by the Superintendent. In establishing of
adjusting priority areas, the Board shall be guided by *a Wowing criteria:
1. Federal, state or court mandates.
2. Grade levels for which faetiides were deslgaed.
3. Iosuring conum dW of schooling within my single school year.
4. Transportation availability and cq mse.
S. Traffic and ss%ty hazards.
6. Raciallabdo balance and racial -economic diversity.
7. Physical plan adeque" and/or ina k*wdes.
Legal Reference:
Qovenune I Q&
53312.7(b) Initiation of proceedings to esmblisb district upon
adoption ofearainlocal BOWS ndpoliciesadoPWby
school districts.
SBHIBIT "J"
77.iS ZN L44U t3D SCHOOL DISTRICT
Tustin, Caufomta - CFD Fins= Potcry - Page r
M
Students P' -
PRIORITY SCHOOL ACCESS POLICY
The fallowing procedures are established for establishing or altering a priority mess policy:
1. Studies regarding new school facilities to be financed in whole or in part by community
facilities district special taxes shall be made under the direction *f the SuperiatertdeQt:
2. A priority access policy shall be made when 8 particular facility is financed in whale at in
Part by community facility district veoial taxes.
3. Plans for establishing or altering a priority access policy' will be pvpuW by the
Superintendent.
The Superintendent shall bring landowner, voter, and student concerns to theattention ofthe
administration and Hoard. Evidence regarding p%Jected enrollments, class loads, walldng
distances, e&dcbalaacx, double sessions, safely factors of Plant facilities indicate such study
is needed.
4. Those plans which have been reviewed in accordance with this procedure and avow most
practical shall be pmeuftd to the 3trpe2intendent. Prior to the public hearing on the
formation of file CFD and the SVWh- tea1 1 making a teconimendation to the Board,
landowners and voters to be affected by the policy Will have an oppartUDity+xo participate in
informal meetings with the Sit
(`� 1 D►w TUSMN tiNDW SCHOOL MSTRICi'
u rsoar Bsi ornuoo 7tntla. Catif� -CFD Fin�ea Pe�.y • Pye 2
poNcp-7114
ACommuttityFamliftDist idFinandngPlmdAbeestablishedbyftGovemiagBoard
on recommendation by the Sltperirttendedt. The Plan sha t e maintained and kept up-to-date and
SW reflect financing priorities for District educational needs.
In establishing or maintaining the Conmiunity Facilities District Financing Plan, the Board
shall be guided by certain factory new factors shall include, but shall not be limited to:
(1) N The District will cooperate with city and county agencies to prioritize the
various kinds of public facilities shall have far 8naacing thrOnBb the use of the Mello -Roos
Community Facilities Act. It shall include school buildings, strUchm or additions thereto, as well
as other public facilities to be owned and operated by other public agencies. The District will Work
in the planning stages in cooperation with other county add municipal bodies such as plamdng and
zoning commissions, and other relevant bodies:
(Z) o bit Mggigd of bond issm. if community facilities district bonds '
are issued, the bonds are to be payable Som the proeeeds ofAd yalmm property taxes levied upon
taxable property in the District, but may be additionally secured by or paid from other sources of
f anding, such as general obligation bonds, redevelopment tax increment or developer fees. -A bond
reserve fund may be required.
The District may agree with bondholders that it will commence foreclosure proceedings by
a specified time if an installment of a special tax is delinqueffi.
The District may rewire additional swurity for the bonds in the form of a letter of credit or
a guaranty where the land in the District is largely undeveloped and is owned by a few persons. N
such a requinment is imposed, the.additional set wity may o* be required until the CFD is fully
developed.andt the propwty is sold to the general per.
(3) 1"Minfoimati_on. ne Superinteadentordesigneeshall establisbproceduresfor
the timely dissemination of information in accordance with the requirements of law. Helshe shall
cooperate with local governmental agencies in disseminating such information.
(4) Faulty of Tax Allocation. Before levying special taxes, the govenling board shall
make any futdings required by law. Such Endings may be govetaed by criteria for evaluating the
equity of teat allocation formulas and concern desirable and maximum amounts -of special taxes to
be levied against any parcel. The criteria may include:
a. the need for the school fadlities for which the special tax is levied;
b. the amount of the special tax and the cost of the sChaol Construction;
lU TUSTiN [ItJfft W SCHOOL DISTRICT'
ar►waa�e7i4o Tnatt4 California - CFD Finance Palley - Pare 3
18017.8.3.1 WAIfaO
C. the required finding8 made in the CFD Report.
` In taking into account the equity of the tax allocation formulas and the desirable ma idmum
amount of the special tax, other available funds6 the estimated costs of planting, land acquisition,
school construction and CFD administration shall be taken into consideration. The fomntia for
levying special taxes may be based upon a variety of factors, including current land use or zoning.
(5) Bim. MW definitions, standards, and assumptions to be used in appraisals are
as MOWS:
a An appraisal of the property within the community f cities district shall be
done by a state certified real estate appraiser, as defined in Budnes$ and
Professions Code Section 113404
b. The appraisal report will be prepared considering the requirements of the
Office, of the Comptroller oft o Currency (OCC) and Uniform Standards of
Professional Appraisal Practice (USPAP) as provided by the Appraisal
Foundation.
C. The Board may determine that the value. of . the real property in the
community facilities district subject to the special tax levied to pay debt
service on botods exceeds by at feast three times the•prinaipal amount of the
bonds and the principal amount of all other bonds outstanding 'that are
secured by a M=W tax levied pursuartt'to the W116 -Roos Cammrmity.
Facilities Act or a .special assessment levied on property' within the
community facilities district.
d. If the finding in (c) cannot be made, the Board may find and determine that
the proposed bonds do not present my unusual credit risk due to the
availability of credit a&mcenmw or other reasons specified by the board.
C. The property in the community facilities district will be appraised on an
ie Was assuming the densities as agreed to by the Board.
R&Mina Bonds
Refunding bands may be issued without repeating any of the proce#res rkuised for the
approval of the original bond issue. if the Board deumnines flint the tax saviap to•tsxpayers world
result from the issuance of the refunding bonds.
Any savings achieved by issuing ref nft buds must be used to reduce the special taxes
which are levied.
TUSMN UNtt7ED SCROC)L DISTRICT
IS A S.1 Qm ISMIND To"b Catit'mnia - CFD'r== Foody - Pap 4
• csoor.e.3.0 oritttoo
Legal References:
Government Code
533123(x)
Initiation of proceedings to establish dis iici upon
adapthmofcertaialoW goslseadpoliciesedoptsd by
scbod districts.
53321
ResobAon of intention to estabibb district coAtwts:
53340.2
Preparation of aurent YOU of special tax. levy
obligations; designation of responsible office;
estimation of future special tax levics; liability of
inaccurate estimates; notice of special taxes; form;
modification of form.
53341.5
Sale or lease of lot, parcel or unit of subdivision;
notice of special fax; form; modification -of form;
termination ofagieement; violations and penalties.
53345.8
Sale of bonds; appraisal of real property subject to
special tax for paying debt service on bonds;
determination of no value civAt ft vote to proceed
•
for specific public policy masons.
53359.5
Notice of sale of bonds; contents.
53359.7
Confidentiality of Wwmatiou contained in notice of
sale or bonds.
Bysiness andL
11340
Xdeasigm owe
Process and procedure; regulalims; educedoual:
requirements; equivalent course and experlenice;
C@rtiflCatiQA
(moi
aAW&aMBA/ "7M
07111M
TUSTTN UNIFIED SCHOOL DISTRICT
Tusda. C ditomk - CFD Fhw= Poft - Pege 5
EXHIBIT "K"
ASSIGNMENT AND ASSUMPTION OF LM AGREEMENT
This Assignment and Assumption of Mitigation Agreement ("Assignment") is made
effective as of 2015, by and between the City of Tustin
("Assignor") and ("Assignee"). The Assignor and the
Assignee may be referred to herein individually as "Party" and collectively as "Parties"
Recitals
A. The Tustin Unified School District ("District") is a party to 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. 20141 of the City of Tustin" and dated
$20 ("I/M Agreement"). The I/M Agreement was recorded in the County of
Orange as Instrument No. . The I/M Agreement pertains to certain real
property located within the City of Tustin and also within the District's boundaries ("City
Property"). The City Property is described and depicted in Exhibit "A" and Exhibit `B" hereto.
B. Recital "J" of the I/M Agreement provides:
"City intends to convey other portions of the City Property to third parties. Prior
to City conveying portions of the City Property to other parties (hereafter, "City
Assignees"), City shall assign proportionately this I/M Agreement to such City
Assignees and require such City Assignees to assume all executory provisions
hereof. As provided in Section 15 below, no such assignment to any City Assignees
shall be valid or effective unless and until the party or parties to whom this I/M
Agreement is to be assigned have timely executed and delivered to TUSD and
TUSD/CFD a copy of the Assignment/Assumption Agreement attached as Exhibit
"K" hereto"
C. Section 15 of the I/M Agreement provides:
"Assignability of this I/M A ear ement. Nothing in this I/M Agreement shall in any
way limit the right or ability of City or a City Assignee to transfer, assign,
encumber, or hypothecate the City Property or portions thereof without the consent
of TUSD or TUSD/CFD, provided, however, that no such transfer of any such
Property, and no such assignment of all or any portions of this I/M Agreement, shall
be valid or effective unless and until: (i) TUSD and TUSD/CFD are provided
written notice of the transfer or assignment within ten (10) calendar days thereof,
and (ii) the City Assignee executes and delivers to TUSD and TUSD/CFD, within
such 10 -day period, a copy of the Assignment/Assumption Agreement attached as
Exhibit "K" hereto, and thereby assumes all applicable executory obligations under
this I/M Agreement with respect to the portion of the City Property transferred. If
BAW&G/WHW/JWF/185054 Assignment and Assumption
of VM Agreement
these conditions are met, TUSD and TUSD/CFD agree to look solely to the City
Assignee for performance of the City's transferred obligations under this I/M
Agreement. Whenever this I/M Agreement provides City with a right, that right
may be exercised by a City Assignee of that right to the same extent that City could
have exercised that right itself."
B. Assignor represents that, by separate instrument, it has conveyed all of its rights,
title, and interests in a portion or portions of the Property ("Property Portion") to Assignee. The
Property Portion is described and depicted in Exhibit "C" and Exhibit "D" hereto. Assignee
represents that it intends to either construct the dwelling units to be authorized within the Property
Portion, or to convey its Property Portion to another builder for such purposes. The Parties intend
that, under this Assignment, Assignee shall accept the rights and assume the obligations and duties
set forth in the IN Agreement, thereby releasing Assignor from its obligations and duties under
the I/M Agreement. The Parties further intend that the District shall be a signatory to this
Assignment for the sole purposes of consenting to such assignment and releasing Assignor from
its obligations and duties under the I/M Agreement.
Now, therefore, in consideration of the foregoing and of rights and obligations set forth
herein, the Parties agree as follows:
Agreement
Section 1. - Assignor hereby assigns to Assignee, without limitation, each and every
right of Assignor under, and interest of Assignor in, the I/M Agreement, and any amendments
thereto.
Section 2. Assignee hereby: (i) accepts, without limitation, the assignment of rights
and interests described in Section 1; (ii) assumes, without limitation, all obligations and duties
under the UM Agreement, and any amendments thereto, as they relate to the Property Portion; and
(iii) agrees with respect to the Property Portion to be bound by all of the terms and conditions of
the I/M Agreement, and any amendments thereto.
Section 3. The District is hereby deemed, for all purposes, to be a third -party
beneficiary of the agreements of the Parties referenced or set forth in this Assignment.
Section 4. The Recitals set forth herein, and the Exhibits referenced herein and
attached hereto, are hereby incorporated as operative and effective provisions of this Assignment.
Section 5. If, for any reason, a court of competent jurisdiction determines that any
provision of this Assignment is to any extent invalid, unenforceable, or void, which
determination becomes final, each of the other provisions of this Assignment shall remain in
effect and shall be construed, to the fullest extent permitted by law, to effect the intent of the
invalid, unenforceable or void provision.
Section 6. This Assignment represents the entire understanding of the Parties with
respect to the matters addressed herein, and this Assignment supersedes and cancels all prior and
2.
BAW&G/WHW/JWF/185054 Assignment and Assumption
of 1 M Agreement
contemporary understandings, promises or representations relating to such matters, whether
written or oral.
Section 7. This Assignment shall be construed in accordance with the laws of the
State of California. Any action, arbitration, mediation or other proceeding arising from this
Amendment shall be initiated and conducted only in the County of Orange, State of California.
Section S. This Assignment may be signed in one or more counterparts, which
individually and collectively shall constitute one and the same original instrument. Signature
pages submitted via electronic mail or via facsimile shall constitute original signatures.
Signature pages may be detached from counterpart originals and combined to physically form
one or more copies of this Assignment bearing original signatures of both Parties.
Section 9. Each person signing this Assignment on behalf of a Party represents and
warrants that he has been duly authorized by appropriate action of such Party to sign, and
thereby bind such Party to, this Assignment.
In witness whereof, the Parties have executed this Assignment as evidenced by the
signatures below of their duly -authorized representatives.
ASSIGNOR
City of Tustin
By:
Name:
Title:
ASSIGNEE
By:
Name:
Title:
ACKNOWLEDGMENT OF ASSIGNMENT BY DISTRICT
The District hereby acknowledges to the foregoing assignment and assumption of the UM
Agreement and the other terms of this Assignment. The District, for all purposes of the UM
Agreement relating to the Property Portion, and unless and until changed by subsequent
assignment and assumption, shall hereafter acknowledge the Assignee as a party to the 1/M
Agreement in substitution of prior owners of the Property Portion, and Assignor is hereby released
from its obligations under the UMI Agreement. The signature of the District representative below
shall in no circumstances be deemed to make the District a party to this Assignment, or to alter the
rights and obligations of the District under the I/M Agreement.
Tustin Unified School District
By:
Name:
Title:
3.
8AW&G/WHW/JWF/185054 Assignment and Assumption
of UM Agreement
EXIMIT 4$A"
Property Legal Descriptlon
Exhibit to begin on the next page.
A -I
BAW&G/WHW/JWF/185054 Assignment and Assumption
of I/M A8mement
EXHIBIT "B"
Property Depiction
Exhibit to begin on the next page.
B -I
BAW&GMHW/JWF/185054 Assignment and Assumption
ofUM Agreement
FJ(MIT 44C"
Property Portion Legal Description
Exhibit to begin on the next page.
G1
BAW&O/WHW/JWF/185054 Assignment zmd Assumption
ofUMAgn t
EXfMIT "D"
Property Portion Depiction
Exhibit to begin on the next page.
D-1
BAW&G/WHWAWF/185054 Assignu=t and Assumption
of UM Agreement