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2014/07/02 Menifee Union School District CFD 2014-4JOINT COMMUNITY FACILITIES AGREEMENT by and among MENIFEE UNION SCHOOL DISTRICT, CITY OF MENIFEE and RCFC INVESTMENTS, LLC relating to MENIFEE UNION SCHOOL DISTRICT COMMUNITY FACILITIES DISTRICT NO.2014-4 397/019623-0048 7002178.1 a07/07/14 JOINT COMMUNITY FACILITIES AGREEMENT THIS JOINT COMMUNITY FACILITIES AGREEMENT (the "Agreement") is entered into effective as of July 2, 2014, by and among MENIFEE UNION SCHOOL DISTRICT, a California School District ("School District"), the City of Menifee, a California general law city ("City") and RCFC Investments, LLC, a California limited liability company ("Property Owner"). This Agreement relates to the proposed formation by School District of a community facilities district to be known as Menifee Union School District Community Facilities District No. 2014-4 (the "CFD") for the purpose of financing with the proceeds of bonds of the proposed CFD certain fees incurred as a consequence of the development within the CFD to be used by the City to construct facilities to be owned and operated by the City. RECITALS A. The property described and depicted in Exhibit A hereto (the "Property"), which is located in the City of Menifee, County of Riverside, State of California, is proposed to constitute the land within the boundaries of the CFD. B. Property Owner owns the Property and intends to develop it for residential purposes. C. Property Owner petitioned the School District to form the CFD for the purpose of financing, among other things, certain fees incurred as a consequence of the development within the CFD to be used by the City for the construction of various public facilities to be owned and operated by City as described in Exhibit B hereto, which facilities will benefit the Property in whole or in part, including certain public facilities to be constructed and owned and operated by City (the "City Fee Facilities") in satisfaction of the payment of City Fees (defined herein). D. The parties hereto acknowledge that the purpose of this Agreement is to satisfy the requirements of the Act. E. In conjunction with the recording of the final subdivision map(s) for the Property, the issuance of building permits for the construction of homes within the Property and/or receipt of final inspections or occupancy certificates for such homes, Property Owner, or its successors or assigns, may elect to advance City Fee Facilities costs in lieu of payment of City Fees (the "Advances") at such times as Bond Proceeds are not available in a sufficient amount to pay for City Fee Facilities. In such case, Property Owner shall be entitled to (i) reimbursement of such Advances and (ii) credit for payments made to City from Bond Proceeds against City Fees which would otherwise be due to City in conjunction with the development of Property Owner's portion of the Property, all as further described herein. F. In addition to the City Fee Facilities, certain facilities to be owned and operated by School District (the "School Facilities") are also expected to be funded from Bond Proceeds. G. School District will have sole discretion and responsibility for the formation and administration of the CFD. 397/019623-0048 7002178.1 a07/07/14 I H. School District is authorized by Section 53313.5 of the Act to assist in the financing of the acquisition and/or construction of the City Fee Facilities. This Agreement constitutes a joint community facilities agreement, within the meaning of Section 53316.2 of the Act, by and among City, Property Owner and School District, pursuant to which the CFD, when and if formed, will be authorized to finance the acquisition and/or construction of all or a portion of the City Fee Facilities. As authorized by Section 53316.6 of the Act, responsibility for constructing, providing for and operating the City Fee Facilities is delegated to City. I. The parties hereto find and determine that the residents residing within the boundaries of City, School District and the CFD will be benefited by the construction and/or acquisition of the School Facilities and City Fee Facilities and that this Agreement is beneficial to the interests of such residents. AGREEMENT NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, the parties hereto agree as follows: 1. Recitals. Each of the above recitals is incorporated herein and is true and correct. 2. Definitions. Unless the context clearly otherwise requires, the terms defined in this Section shall, for all purposes of this Agreement, have the meanings herein specified. (a) "Act' means the Mello -Roos Community Facilities Act of 1982, Chapter 2.5 (commencing with Section 53311) of Part 1 of Division 2 of Title 5 of the California Government Code. (b) "Advance" means an amount advanced by Property Owner to City for City Fee Facilities in lieu of payment of City Fees prior to the availability of sufficient Bond Proceeds. (c) "Bonds" shall mean those bonds, or other securities, issued by, or on behalf of the CFD in one or more series, as authorized by the qualified electors within the CFD. (d) "Bond Proceeds" shall mean those funds generated by the sale of each series of Bonds secured by the Special Taxes of the CFD, net of costs of issuance, reserve fund, capitalized interest and administrative expenses. (e) "Bond Resolution" means that resolution, resolution supplement, fiscal agent agreement, indenture of trust or other equivalent document(s) providing for the issuance of the Bonds. (f) "City Fees" means those capital improvement fees, and all components thereof, imposed by City as a consequence of development of any portion of the Property to finance City Fee Facilities; as further described in Exhibit B hereto. (g) "City Fee Facilities" means those City capital improvements eligible to be financed with the City Fees. 397/019623-0048 7002178.1 a07/07/14 2 (h) "Other Facilities Account of the Improvement Fund" means the fund, account or sub -account of the CFD (regardless of its actual designation within the Bond Resolution) into which a portion of the Bond Proceeds may be deposited in accordance with the Bond Resolution to finance City Fee Facilities and which may have subaccounts. (i) "Party" or "Parties" shall mean any one or all of the parties to this Agreement. (j) "Rate and Method" means the Rate and Method of Apportionment of the Special Tax authorizing the levy and collection of special taxes within the CFD pursuant to proceedings undertaken for the formation of the CFD pursuant to the Act. (k) "School Facilities" means those public improvements to be owned, operated or maintained by the School District identified in proceedings to form the CFD that are eligible to be financed with Bond Proceeds. (1) "School Facilities Agreement" means a separate agreement between School District and Property Owner relating to the CFD and the financing of the School Facilities, as amended. (m) "Special Taxes" means the special taxes authorized to be levied and collected within the CFD pursuant to the Rate and Method. (n) "State" means the State of California. 3. Proposed Formation of the CFD. School District will undertake to analyze the appropriateness of forming the CFD to finance the City Fee Facilities and other facilities. School District will retain, at the expense of the Property Owner, the necessary consultants to analyze the proposed formation of the CFD. 4. Sale of Bonds and Use of Bond Proceeds. In the event that the CFD is formed, the School District Board acting as the legislative body of the CFD may, in its sole discretion, finance City Fee Facilities by issuing the Bonds. To the extent that the CFD and Property Owner determine that Bond Proceeds are available to finance City Fee Facilities, the School District Board shall notify City of the amount of such Bond Proceeds deposited in the Other Facilities Account that is available for such purpose. As Bond Proceeds are transferred to City as described in Section 5 below, the portion of the Property with respect to which such transfer was made shall receive a credit in the amount transferred against the payment of City Fees. Nothing herein shall supersede the obligation of Property Owner to make Advances or otherwise pay City Fees to City when due. The purpose of this Agreement is to provide a mechanism by which the CFD may issue the Bonds to provide a source of funds to finance City Fee Facilities in satisfaction of the payment of City Fees. In the event that Bond Proceeds are not available or sufficient to satisfy the obligation, then such Property Owner shall remain obligated to make Advances or otherwise pay City Fees to City as required by the City in accordance with applicable law. The Bonds shall be issued only if, in its sole discretion, the School District Board determines that all requirements of State and Federal law and all School District policies have 397/019623-0048 7002178.1 a07/07/14 3 been satisfied or have been waived by School District. Nothing in this Agreement shall confer upon City or any owner of the Property, including any Property Owner, a right to compel the issuance of the Bonds or the disbursement of Bond Proceeds to fund City Fee Facilities except in accordance with the terms of this Agreement. 5. Disbursements. (a) Upon the funding of the Other Facilities Account of the Improvement Fund, Property Owner may execute and submit a payment request to the School District or the CFD requesting disbursement to the Property Owner, or its written designee, from the Other Facilities Account of the Improvement Fund of an amount equal to all or a portion of the Advances. The sole source of funds from which Property Owner will be entitled to receive reimbursement of the Advances and from which Property Owner may request disbursements pursuant to Section 5(b) below shall be the Advances themselves held by the City or the Bond Proceeds deposited in the Other Facilities Account of the Improvement Fund. (b) From time to time following the funding of the Other Facilities Account of the Improvement Fund, Property Owner may notify City in writing and City and Property Owner shall jointly request a disbursement from the Other Facilities Account of the Improvement Fund to fund City Fee Facilities by executing and submitting a request for payment, in substantially the form attached hereto as Exhibit C (the "Disbursement Request"). Upon receipt of such Disbursement Request completed in accordance with the terms of this Agreement, the CFD shall wire transfer or otherwise pay to City such requested funds to the extent that Bond Proceeds are then available, or subsequently become available, in the Other Facilities Account of the Improvement Fund for such purpose. Upon such notice and City's receipt of such disbursement relating to City Fees, Property Owner shall be deemed to have satisfied the applicable City Fees with respect to the number of dwelling units or lots for which the City Fees would otherwise have been required in an amount equal to the amount of such disbursement divided by the per lot or unit amount of the applicable City Fees. (c) City agrees that prior to submitting a Disbursement Request requesting payment from the CFD it shall review and approve all costs included in its request and will have already paid or incurred such costs of City Fee Facilities from its own funds subsequent to the date of this Agreement, or will disburse such amounts to pay the costs of the City Fee Facilities following receipt of funds from the CFD. In the event that City does not disburse any Bond Proceeds received by it to third parties within five banking days of receipt, it will trace and report to the CFD all earnings, if any, earned by City, from the date of receipt of such Bond Proceeds by City to the date of expenditure by City for capital costs of the City Fee Facilities. Such report shall be delivered at least semiannually until all Bond Proceeds are expended by City. City agrees that in processing the above disbursements it will comply with all legal requirements for the expenditure of Bond Proceeds under the Internal Revenue Code of 1986 and any amendments thereto. (d) City agrees to maintain adequate internal controls over its payment function and to maintain accounting records in accordance with generally accepted accounting procedures. City will, upon request, provide School District and/or Property Owner with access to City's records related to the City Fee Facilities and will provide to School District its annual 397/019623-0048 7002178.1 a07/07/14 4 financial report certified by an independent certified public accountant for purposes of assisting School District in calculating the arbitrage rebate obligation of the CFD, if any. (e) School District or the CFD agrees to maintain full and accurate records of all amounts, and investment earnings, if any, expended from each Other Facilities Account of the Improvement Fund. School District or the CFD will, upon request, provide City and the Property Owner with access to School District's or the CFD's records related to the Other Facilities Account of the Improvement Fund. 6. Ownership of City Fee Facilities, The City Fee Facilities shall be and remain the property of City. 7. Indemnification. (a) Indemnification by School District. School District shall assume the defense of, indemnify and save harmless, City, its officers, employees and agents, and each and every one of them, from and against all actions, damages, claims, losses or expenses of every type and description to which they may be subjected or put, by reason of, or resulting from, any act or omission of School District with respect to this Agreement and the issuance of the Bonds; provided, however, that School District shall not be required to indemnify any person or entity as to damages resulting from negligence or willful misconduct of such person or entity or their officers, agents or employees. (b) Indemnification by Property Owner. Property Owner shall assume the defense of, indemnify and save harmless, School District, the CFD and City, their respective officers, employees and agents, and each and every one of them, from and against all actions, damages, claims, losses or expenses of every type and description to which they may be subjected or put, by reason of, or resulting from, any act or omission of Property Owner with respect to this Agreement; provided, however, that Property Owner shall not be required to indemnify any person or entity as to damages resulting from negligence or willful misconduct of such person or entity or their officers, agents or employees. (c) Indemnification by City. City shall assume the defense of, indemnify and save harmless, School District, the CFD and Property Owner, their respective officers, employees and agents, and each and every one of them, from and against all actions, damages, claims, losses or expenses of every type and description to which they may be subjected or put, by reason of, or resulting from, any act or omission of City with respect to this Agreement, and the design, engineering and construction of the City Fee Facilities constructed by City; provided, however, that City shall not be required to indemnify any person or entity as to damages resulting from negligence or willful misconduct of such person or entity or their officers, agents or employees. 8. Allocation of Special Taxes. The School District Board, as the legislative body of the CFD, shall annually levy the Special Tax as provided for in the formation proceedings of the CFD. The entire amount of any Special Tax levied by the CFD to repay Bonds, or to fund other obligations, shall be allocated to the CFD. 397/019623-0048 7002178.1 a07/07/14 $ 9. Amendment and Assi nment. This Agreement may be amended at any time but only in writing signed by each party hereto. This Agreement may be assigned, in whole or in part, by Property Owner to the purchaser of any parcel of land within the Property provided, however, such assignment shall not be effective unless and until City and School District have been notified, in writing, of such assignment. 10. Entire Agreement. This Agreement contains the entire agreement between the parties with respect to the matters provided for herein and supersedes all prior agreements and negotiations between the parties with respect to the subject matter of this Agreement. 11. Notices. Any notice, payment or instrument required or permitted by this Agreement to be given or delivered to either party shall be deemed to have been received when personally delivered or seventy two hours following deposit of the same in any United States Post Office in California, registered or certified, postage prepaid, addressed as follows: School District: Menifee Union School District 30205 Menifee Road Menifee, CA 92584 Attention: Asst. Supt. Business Services City: City of Menifee 29714 Haun Road Menifee, CA 92586 Attention: City Clerk Property Owner: RCFC Investments, LLC 26071 Merit Circle, Suite 101 Laguna Hills, CA 92653 Attention: Gordon Youde Each party may change its address for delivery of notice by delivering written notice of such change of address to the other party hereto. 12. Exhibits. All exhibits attached hereto are incorporated into this Agreement by reference. 13. Attorneys' Fees. In the event of the bringing of any action or suit by any Party against any other Party arising out of this Agreement, the Party in whose favor final judgment shall be entered shall be entitled to recover from the losing Party all costs and expenses of suit, including reasonable attorneys' fees. 14. Severability. If any part of this Agreement is held to be illegal or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible. 15. Governing Law. This Agreement and any dispute arising hereunder shall be governed by and interpreted in accordance with the laws of the State of California. 397/019623-0048 7002178.1 a07/07/14 16. Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party hereto, or the failure by a party to exercise its rights upon the default of another party, shall not constitute a waiver of such party's right to insist and demand strict compliance by such other party with the terms of this Agreement thereafter. 17. No Third Partv Beneficiaries. No person or entity other than the CFD, when and if formed, shall be deemed to be a third party beneficiary hereof, and nothing in this Agreement (either express or implied) is intended to confer upon any person or entity, other than City, School District, the CFD, and the Property Owner (and their respective successors and assigns, exclusive of individual homebuyers), any rights, remedies, obligations or liabilities under or by reason of this Agreement. 18. Shwi lar and Plural; Gender. As used herein, the singular of any word includes the plural, and terms in the masculine gender shall include the feminine. 19. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute but one instrument. [Signature Page Follows] 397/019623-0048 7002178.1 a07/07/14 % IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year written above. ATTEST: lerk the Board of Trustees ATTEST: Lo Clerk of the City SCHOOL DISTRICT MENIV By: Name: Title: Superintendent t CITY OF MENIFEE By: Name: Title: PROPERTY OWNER RCFC INVESTMENTS, LLC, a California limited liability company Gordon D. Youde, Manager 397/019623-0048 7002178.1 a05/19/14 -$- IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year written above. SCHOOL DISTRICT MENIFEE UNION SCHOOL DISTRICT By: Name: Title: ATTEST: By: Clerk of the Board of Trustees CITY OF MEN By: Name: '5Gy_ Jq. Y I fr,04 Title: 1 r ATTEST: I - By: _J 9-wq�— Clerk of the City PROPERTY OWNER RCFC INVESTMENTS, LL , a California limited liability c n ny By: Gordon Youde, Manager 397/019623-0048 7002178.1 a07/07/14 EXHIBIT A DESCRIPTION OF PROPERTY Tract No. 31456 in the County of Riverside, California 397/019623-0048 7002178 1 a07/07/14 A EXHIBIT R CITY FEES The type of City Fee Facilities eligible to be financed by the CFD under the Act are the capital improvements authorized to be financed with the City development impact fees ("DIF") imposed pursuant to County Ordinance No. 659, as adopted by the City and as amended as of the date of this Agreement by City Ordinance No. 2010-76, and as subsequently amended by the City. W. Sequence No. City SA# EXHIBIT C DISBURSEMENT REQUEST FORM 1. Menifee Union School District Community Facilities District No.2014-3 ("CFD") is hereby requested to pay from Bond Proceeds to the City of Menifee ("City"), as Payee, the sum set forth in 3 below. 2. The undersigned certifies that the amount requested for City Fee Facilities is due and payable, has not formed the basis of prior request or payment, and is being made with respect to the property described in Exhibit A to the Joint Community Facilities Agreement by and among the Menifee Union School District, City of Menifee, CV Communities, LLC et al dated as of . 2014 (the "JCFA"). 3. Amount requested: For Tract/Improvement Area Lot Nos: 4. The amount set forth in 3 above is authorized and payable pursuant to the terms of the JCFA. Capitalized terms not defined herein shall have the meaning set forth in the JCFA. ATTEST: By: Clerk of the City cc: City Finance Dept. PROPERTY OWNER By: Name: Title: CITY OF MENIFEE By: Name: Title: C RESOLUTION NO. 2015-41 A RESOLUTION APPROVING A JOINT COMMUNITY FACILITIES AGREEMENT WITH THE CITY OF MENIFEE AND RCFC INVESTMENTS, LLC (OWNER) WHEREAS, the Menifee Union School District (District) is in the process of considering the formation of a community facilities district (CFD 2014-4) in order to finance a portion of the school mitigation requirements for a residential project which is subject to a School Facilities Mitigation Agreement with the District; and WHEREAS, the City of Menifee (City) can participate through the CFD in the funding of the fee and facilities requirements for Owner through a Joint Community Facilities Agreement (JCFA) with the District and Owner; and WHEREAS, JCFAs between public agencies are specifically authorized under Government Code Section 53316.2, which is a portion of the Mello -Roos Community Facilities Act of 1982. NOW THEREFORE BE IT RESOLVED as follows: 1. The Board of Trustees hereby approves the JCFA between the District, City and the Owner attached hereto as Exhibit A and incorporated herein by reference. 2. The Superintendent or designee is directed to send an executed copy of this Resolution , and executed copies of the JCFA to each of the other signators. Steve Kennedy, Secretaryf6f the Board ATTEST: crk 4er rd As Clerk of the Board of Trustees of the Menifee Union School District, I hereby certify that this Resolution was duly adopted at a regular meeting of the Board held on July 22, 2014, and that it remains in frill force and effect. Clerk of the Board