SUPPLEMENTAL Agenda Materials
Item No. 13.E - School Facility Agreement Updated
Documents
DATE: City Council Meeting of May 13, 2025
PLEASE SEE THE ATTACHED SUPPLEMENTAL
DOCUMENTS
1 WESTERN PLACER UNIFIED SCHOOL DISTRICT,
CITY OF LINCOLN, AND LEWIS COMMUNITIES
SCHOOL FACILITIES AGREEMENT
P R E A M B L E
This SCHOOL FACILITIES AGREEMENT (“ Agreement”) shall be effective as of ___________________, 2025 (“ Effective Date ”), and is entered into by and between WESTERN PLACER UNIFIED SCHOOL DISTRICT, a public school district in the State of California (“ District”), LINCOLN LAND HOLDINGS, LLC (“ Lewis”), and the CITY OF LINCOLN, a California general law city (“City”). District, Lewis, and City may each be referred to as a Party or collectively as the Parties.
R E C I T A L S
A. WHEREAS, Lewis owns approximately 516 acres of real property ( “Current Lewis Property”) located within the “Village 7” geographic area and subject to the Village 7 Specific Plan (“Specific Plan”), as shown in blue in Exhibit A-1 attached hereto and made a part hereof. Lewis anticipates acquiring and annexing into the City and Village 7 approximately 173 acres of real property located north of Moore Road (“Annexed Property”), the land use diagram for which is attached hereto as Exhibit A-2 and made a part hereof. The Current Lewis Property and Annexed Property shall be referred to as the “Developer Property”.
B. WHEREAS, the Specific Plan affects approximately 703 acres of land located partially within the City and partially within unincorporated Placer County, within the boundaries of the District. As shown on Exhibit A-1, the Specific Plan provides for single-family residential units, multi- family residential units, non -residential uses , including commercial development, various public and quasi-public facilities, school facilities, parks and open space, and a circulation system. As shown on Exhibit A -2, the pr oposed illustrative land use plan incorporating the Annexed Property will have similar land uses.
C. WHEREAS, the Specific Plan identifies the maximum allowable density within the Current Lewis Property of 2470 residential units. The anticipated density of the Developer Property, inclusive of the Annexed Property, is 3000 to 3300 residential units.
D. WHEREAS, the Specific Plan also identifies an 11.6 acre school site south of Ferrari Ranch Road, as depicted in Exhibit B-1 (“Current School Site”) , but Lewis and the District agree that the 16.6 acre school site north of Ferrari Ranch Road, as shown in Exhibit B-2 (“New School Site”) is more suitable for a school, and thus Lewis, with the support of the District, intends to relocate the designated school site in the Specific Plan to the New School Site. “School Site” means, individually, the Current School Site or the New School Site, or alternative school site, as the context requires.
E. WHEREAS, Lewis has obtained City’s approval of the Village 7 General Development Plan (“ Development Plan”), subsequent amendments, and other entitlements for the Current Lewis Property (collectively with the Specific Plan and Development Plan, the “Entitlements”). (The development of the Current Lewis Property pursuant to the Entitlements,
2 as they may be amended, shall be referred to as the “Project. ”) Once the Annexed Property is acquired by Lewis, or a related entity, annexed and entitled, it will be considered part of the Project and subject to the terms of this Agreement.
F. WHEREAS, the Parties acknowledge that students generated by the Project will result in significant impacts on the District's facilities and infrastructure at all grade levels.
G. WHEREAS, this Agreement addresses the financing and construction of a permanent transitional kindergarten through eighth grade (TK -8) school facility, including furnishings, fixtures, equipment, and technology required to accommodate students generated by the Project, joint -use park and recreation facilities development (collectively, the “ School Facilities”), and acquisition of the School Site.
H. WHEREAS, the Parties acknowledge this Agreement does not fully address the District’s school facilities needs for students generated by the Project in grades 9- 12, which the District anticipates funding through a future District-wide general obligation bond or other future resources.
I. WHEREAS, through this Agreement, the Parties wish to work together to provide School Facilities to accommodate up to 1200 students within the Project (subject to the final design of the School Facilities) and make available for joint use by the City and the community other recreational spaces at the School Facilities to promote the health and general welfare of the community and to enhance the recreational opportunities afforded to the community. Specifically, the School Facilities will include a joint use Park (including a track and fields) to be developed by Lewis before the school is constructed, as well as hardcourts and multi -use facilities that will be part of the School Facilities, all for the benefit of the community.
J. WHEREAS, consistent with Education Code sections 10900 et seq. and 17534, as part of the financing and future use of the School Facilities, a portion of the School Facilities will be available for joint use by the City and the District.
K. WHEREAS, City and District shall enter into a separate joint use agreement that will provide additional detail related to the annual payment to the District required by this Agreement, an allocation of non- critical facilities Development Impact fees as allowable and required by this Agreement, and the City’s use of the Joint Use Facilities.
L. WHEREAS, the Agreement provides a financing structure to acquire the School Site and construct the School Facilities utilizing a combination of statutory developer fees, developer-built recreational facilities, bond proceeds and special taxes from a community facilities district, local District resources, and State Funding, all supported by the cooperation of the Parties to leverage and maximize revenue streams as needed , which are memorialized in the “School Facilities Funding Plan” incorporated as Exhibit C.
M. WHEREAS, the District and City are members of a Joint Powers Authority known as the California Municipal Finance Authority (“CMFA”).
N. WHEREAS, CMFA operates the Bond Opportunities for Land Development (“BOLD”) Program, pursuant to which CMFA may form a Community Facilities District pursuant
3 to the Mello Roos Community Facilities Act of 1982 codified at Government Code section 53311, et. seq. and issue bonds to finance public facilities (“Mello-Roos Act”).
O. WHEREAS, the Parties desire to utilize the BOLD Program to form a CFD over the Project and issue bonds to, in part, finance a portion of the School Facilities.
P. WHEREAS, the District and Lewis agree this Agreement is entered into freely and voluntarily and acknowledge that at the time of the Effective Date, the California State Legislature has enacted as part of Senate Bill 50 (“SB 50”) in Government Code sections 65995, et seq., which became fully effective in November 1998, certain modifications to the law concerning payment of school impact fees by homebuilders. Lewis acknowledges the school impact fees collected by the District are for the construction and rehabilitation of school facilities and that the District has adopted a five-year construction plan, pursuant to Education Code section 17017.5, subdivision c.
The District and Lewis mutually acknowledge, agree , and find that this Agreement sets forth the responsibility of Lewis to mitigate impacts on the District’s Grades K-12 school facilities intended to be mitigated by any “State Mandated Fee” (as hereinafter defined), and the California Environmental Quality Act.
Q. WHEREAS, Lewis and District further acknowledge and agree that this Agreement is not subject to legal challenge as an alleged violation of any terms of SB 50, Senate Bill 937, or any other applicable law concerning the payment of school impact fees by homebuilders.
R. WHEREAS, in light of the complex nature of the School Facilities Funding Plan and its reliance on Surplus Special Taxes that may also be available for other Project purposes, the Parties shall establish a Liberty School Funding Advisory Committee to monitor the Surplus Special Tax Revenues.
NOW, THEREFORE, in consideration of the premises set forth above, the mutual covenants and obligations of the parties set forth herein, District, Lewis, and City hereby agree as follows:
AGREEMENT
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. In addition to the terms defined elsewhere in this Agreement, as used in this Agreement, the following terms shall have the meaning set forth below:
(1) “Act” means the Mello Roos Community Facilities Act of 1992 codified at Government Code section 53311, et. seq.
(2) “Active Adult Living Unit ” means any unit meeting the qualifications of Government Code section 65995.1(a).
(3) “Active Adult School Fee” shall have the meaning set forth in Section 3.1. (4) “Annexed Property” shall have the meaning set forth in Recital A.
4 (5) “Annual Contribution” shall have the meaning set forth in Section 6.2. (6) “Annual Meeting” shall have the meaning set forth in Section 8.1. (7) “Audit” shall have the meaning set forth in Section 5.1. (8) “Auditing Agency” shall have the meaning set forth in Section 5.1. (9) “Acquisition Notice” shall have the meaning set forth in Section 7.2. (10) “Appraised Value” shall have the meaning set forth in Section 7.3. (11) “Board” means the District’s Board of Trustees.
(12) “BOLD” shall have the meaning set forth in Rectial N. (13) “Bond” or “Bonds” has the meaning set forth in Section 4.1. (14) “Bridge Financing” shall have the meaning set forth in Section 5.2. (15) “Carveout Period” shall have the meaning set forth in Section 9.1. (16) “CDE” means the California Department of Education. (17) “Certificate of Compliance” means a certificate issued by District for the purpose of Lewis, or its successors and assigns, obtaining a building permit from the City, or if the area does not incorporate, from the County of Placer (“County”), acknowledging that all requirements of this Agreement and the School Fee Legislation with respect to the issuance of a building permit for any Residential Unit located within the Project have been complied with. (18) “CFD” means a community facilities district formed pursuant to the Act over the Developer Property.
(19) “City” means the City of Lincoln.
(20) “City Account” has the meaning set forth in Section 4.7. (21) “City Joint Use Contribution” shall have the meaning set forth in Section 6.2. (22) “CMFA” means the California Municipal Finance Authority. (23) “Commercial School Impact Fee” shall have the meaning set forth in Section 3.1. (24) “Construction Ready Condition” has the meaning set forth in Section 7.6. (25) “Construction Ready Costs” has the meaning set forth in Section 7.6. (26) “Cost of Issuance Fund” shall have the meaning set forth in Section 4.8.
5 (27) “Current Lewis Property” shall have the meaning set forth in Recital A. (28) “Current School Site” shall have the meaning set forth in Recital D. (29) “Developer Contribution” shall have the meaning set forth in Section 2.3. (30) “Developer Fees” shall have the meaning set forth in Section 3.1. (31) “Developer Property” shall have the meaning set forth in Recital A. (32) “Development Plan” shall have the meaning set forth in Recital E. (33) “District” means the Western Placer Unified School District. (34) “District License” has the meaning set forth in Section 7.8. (35) “District Liability Policy” has the meaning set forth in Section 7.10. (36) “District Bond Proceeds Share” has the meaning set forth in Section 4.7. (37) “DSA” means the Division of the State Architect.
(38) “DTSC” means the Department of Toxic Substance Control. (39) “Entitlements” shall have the meaning set forth in Recital E. (40) “Floor Fee” shall have the meaning set forth in Section 3.1. (41) “GO Bond” means a General Obligation Bond.
(42) “Improvement Area” means one or more areas designated in the formation of the CFD as an Improvement Area within the meaning of the Act, and any additional Improvement Area created following the annexation of property to the CFD pursuant to the Act. (43) “JCFA” means a joint community facilities agreement by and among the City, District, CMFA and Lewis entered in accordance with the Mello-Roos Act. (44) “Joint Use Facilities” shall have the meaning set forth in Section 2.1. (45) “JUA” shall have the meaning set forth in Section 6.2. (46) “Level 2 Fee” shall have the meaning set forth in Section 3.1. (47) “Lewis” or “Developer ” means Lincoln Land Holdings, LLC or any of its successors or assigns.
(48) “Liberty School Funding Advisory Committee ” or “LSFAC” shall mean a committee comprised of one member of the District’s Governing Board solely appointed by the District, , one member of the City Council solely appointed by the City, and a Lewis representative.
6 The District’s Superintendent or designee, City Manager or designee, and other District, City, or Lewis staff shall administratively support the LSFAC.
(49) “Mello-Roos Act” shall have the meaning set forth in Recital N. (50) “Merchant Builder” means a buyer, assignee, or transferee of one or more individual lots or tracts of the Project, or any other party to an agreement with Lewis, for the purpose of engaging in the business of developing, improving, or using such lots or tracts for development.
(51) “New School Site” shall have the meaning set forth in Recital D. (52) “Non-Critical PFE Equivalent” has the meaning set forth in Section 6.2. (53) “Park” means the 8.5 acre regional -size park to be developed by Lewis for joint use by the District and City in accordance with District and City design standards, which comprises a portion of the total acreage of the School Site.
(54) “Park Credit” shall have the meaning set forth in Section 6.1. (55) “Payment Sources” means all or any combination of Developer Fees paid pursuant to this Agreement, the Developer Contribution, Bonds, Surplus Special Taxes generated from the CFD, the City Joint Use Contribution, State Funding, and any other sources to be used to acquire, plan, design and/or construct the School Facilities to the extent identified as Revenue in the School Facilities Funding Plan. The term “Payment Sources” does not include the proceeds of any bonds issued pursuant to a future general obligation bond authorization or the District’s general fund. (56) “PFE” shall have the meaning set forth in Section 6.1. (57) “Purchase and Sale Agreement” means the Agreement for Purchase and Sale of Real Property and Joint Escrow Instructions for the School Site attached hereto as Exhibit D. (58) “Purchase Price” shall have the meaning set forth in Section 7.3. (59) “Project” shall have the meaning set forth in Recital E. (60) “Refunding” shall have the meaning set forth in Section 4.9. (61) “Reimbursement Costs" shall have the meaning set forth in Section 4.7. (62) “Residential Unit ” means a residential dwelling, as that term is used and interpreted in Chapter 4.7 (school facilities) of the State Government Code, and shall include single-family attached and detached units (including condominiums) and multi-family (apartment) units.
(63) “Residential School Fee” shall have the meaning set forth in Section 3.1. (64) “Reserve Fund” shall have the meaning set forth in Section 4.7.
7 (65) “RMA” means the Rate and Method of Apportionment of Special Taxes for each Improvement Area.
(66) “SB-50” shall have the meaning set forth in Recital P. (67) “School Facilities” shall have the meaning set forth in Recital G. (68) “School Facilities Account” shall have the meaning set forth in Section 4.7. (69) “School Facilities Funding Plan” means the document attached hereto as “Exhibit C”, which may be amended from time to time as provided herein. The School Facilities Funding Plan provides a summary of the Parties’ financing projections through the buildout of the Developer Property on a per-year basis including: the expected number of developed Residential Units by type; the resulting number of students expected to be generated by the Project; income to the District for the School Facilities, including all Payment Sources,; and expenditures related to the School Facilities, including estimated cost based on2025 dollars, and timing of the construction of School Facilities and related School Site acquisition. (70) “School Facility Program ” or “SFP” means the State program providing State Funds in the form of per pupil grants, with supplemental grants for site development, site acquisition, and other project specific costs when warranted, as contemplated by School Fee Legislation.
(71) “School Fee Legislation ” means sections 65995 through 65996, inclusive, of the Government Code of the State of California and Section 17620, et seq., of the Education Code of the State of California (including any amendments thereto), and any related or successor statutes thereto.
(72) “School Improvements” means the maintenance, improvement, modernization, expansion or addition to the School Facilities (once constructed) and construction or improvement of any high school facilities where Project students will matriculate. (73) “School Site” shall have the meaning set forth in Recital D. (74) “School Site Approvals” shall have the meaning set forth in Section 7.5. (75) “School Site Development Costs” shall have the meaning set forth in Section 7.6. (76) “SFID” means School Facilities Improvement District. (77) “SFNA” means a School Facilities Needs Analysis and Justification Study related to Developer Fees and adopted by the District.
(78) “SFPD” means the School Facilities Planning Division of the California Department of Education.
(79) “Share Deferral” shall have the meaning set forth in Section 4.7.
8 (80) “Special Note” means a Special Limited -Obligation Note in the form attached to the Purchase and Sale Agreement.
(81) “Special Note Revenues” shall have the meaning set forth in Section 7.4. (82) “State” means the State of California.
(83) “State Funds ” or “State Funding ” means the total funds allocated and paid to District by the State specifically intended for the acquisition, construction, furnishing and/or equipping of School Facilities.
(84) “State Law” means the applicable laws and/or administrative regulations of the State of California and its agencies.
(85) “State Mandated Fee” means the statutorily mandated fee for School Facilities pursuant to the School Fee Legislation.
(86) “Surplus Special Taxes” shall have the meaning set forth in Section 4.10. (87) “Surplus Special Tax First Priority” shall have the meaning set forth in Section
4.10. (88) “Surplus Special Tax Second Priority" shall have the meaning set forth in Section 4.10.
(89) “TK-8 School” shall have the meaning set forth in Section 2.1.
ARTICLE II
SCHOOL FACILITIES AND FUNDING MODEL
Section 2.1 School Facilities . The School Facilities shall be constructed to serve up to 1200 students generated by the Project, but the capacity of the School Facilities will ultimately be determined by its final design. The final design of the School Facilities will include approximately 40-50 classrooms meeting the square footage requirements and education specifications for grade levels transitional kindergarten through eighth grade (the “TK-8 School”), the Park, and joint use recreational facilities such as an i ndoor gymnasium, multi -purpose room, multi -media center, basketball hardcourts, and athletic fields (collectively, with the Park, the “Joint Use Facilities”).
Section 2.2 Funding Model. The total cost to construct the School Facilities is currently estimated to be approximately One Hundred Eight Million One Hundred Fifty Thousand Dollars ($108,150,000) (2025 Dollars), based upon the School Facilities Funding Plan. The School Facilities are expected to be paid, in full, by the Payment Sources as modeled in the School Facilities Funding Plan.
Section 2.3 Additional Developer Contribution. Lewis shall contribute an amount equal to the Park Credit (“Developer Contribution”), which shall be satisfied by Lewis incurring the Construction Ready Costs and School Site Development Costs (both defined below) and, if such combined costs are less than the value of the Park Credit , a cash payment or credit toward the Special Note equal to the amount by which the value of the Park Credit exceeds such combined costs. Lewis may remit or satisfy any balance
9 of the Developer Contribution at any time after the District acquires the School Site and prior to the District satisfying any Special Note for the School Site.
ARTICLE III
DEVELOPER FEES AND ADDITIONAL DEVELOPER CONTRIBUTION
Section 3.1 Developer Fees. District has approved a Residential School Fee, Commercial School Impact Fee, and Active Adult School Fee (collectively, “ Developer Fees”) pursuant to the authority of the School Fee Legislation. Lewis or Merchant Builders shall pay the Developer Fees as set forth in this Section 3.1:
(1) Prior to and as a condition of obtaining a Certificate of Compliance and a building permit for each Residential Unit, Lewis or Merchant Builders shall pay the “ Residential School Fee” pursuant to the then most recent SFNA adopted by the Board multiplied by the total square footage of “assessable space” within each Residential Unit as such term is defined in Government Code section 65995(b)(1). Lewis acknowledges and shall ensure Merchant Builders acknowledge, that the School Facilities Funding Plan assumes the District will maintain the authority to levy against residential construction a fee pursuant to Government Code section 65995.5 (“ Level 2 Fee”) throughout the entirety of this Agreement. If at any time during the term of the Agreement, the District’s SFNA supports a Residential School Fee that is less than the Level 2 Fee identified in the District’s 2024-2025 SFNA (“Floor Fee”), Lewis or the Merchant Builders shall continue to pay a Residential School Fee equal to the greater of the Floor Fee or the then -current Level 1 Fee until the Board adopts an SFNA that supports a Level 2 Fee greater than that amount. The Residential School Fee shall be paid by Lewis or Merchant Builders in lieu of the State Mandated Fee for all Residential Units in the Project. If Lewis or Merchant Builders fails to pay the Residential School Fee, the District may withhold a Certificate of Compliance for the Residential Unit and Lewis or Merchant Builders may not construct the Residential Unit until the Residential School Fee is paid for that Residential Unit.
(2) Commercial, Office and/or Industrial Unit Fee. Lewis or Merchant Builders shall pay in cash the State Mandated Fee for a commercial, office and/or industrial unit (“Commercial School Impact Fee”) to District in accordance with Education Code sections 17620, et seq ., and Government Code sections 65995, et seq. Lewis or Merchant Builders shall pay the Commercial School Impact Fee for each commercial, office, and/or industrial unit constructed within the Project, multiplied by the total square footage of each unit’s “chargeable covered and enclosed space,” as such term is defined in Government Code section 65995(b)(2). (3) Active Adult Living Units. For each Active Adult Living Unit constructed within the Project, as defined by the School Facilities Agreement, Lewis or Merchant Builders shall make a payment equal to the Commercial School Impact Fee (“Active Adult School Fee”) multiplied by the total square footage of assessable space within each Active Adult Living Unit.
Section 3.2 Prepayment Option. Lewis or Merchant Builders may prepay the Residential School Fee for any Residential Unit or any Active Adult Living Unit at any time and at the rate in effect at the time of prepayment, even if building permits for such Residential Units or Active Adult Living Units will not be immediately obtained. If prepayment is made, the Parties will complete an accounting when building permits are obtained for the Residential Units or Active Adult Living Units to reconcile the square
10 footage of assessable space and appropriate Residential School Fee or Active Adult School Fee. After the accounting, Lewis or the Merchant Builder will pay any deficiency in the pre -paid Residential School Fees or Active Adult School Fees at the then-current rate of the Residential School Fee or Active Adult School Fee. If the accounting determines Lewis or Merchant Builders have overpaid for any Residential Unit or Active Adult Living Unit, the District shall refund any overpayment based upon the difference in final square footage of assessable space for any Residential Unit or Active Adult Living Unit multiplied by the value of the pre-paid Residential School Fee or Active Adult School Fee. The refund shall be made as soon as practical based upon the School Facilities Funding Plan. Any refund by District to Lewis shall be discussed during the Annual Meet and Confer meeting described in Article VIII, and the date the refund is due will be a greed upon by both parties in writing. The prepayment of Resident ial School Fees or Active Adult School Fees shall be specific to Residential Units or Active Adult Living Unit s within the Project. As such, Lewis or Merchant Builder may not bank, sell , or trade credits accrued as a result of prepayment for application toward Residential Unit s or Active Adult Living Unit s outside the Project.
Further, any change in the allocation of pre -paid Residential School Fees from Residential Unit to Residential Unit or pre-paid Active Adult School Fees from Active Adult Living Uni t to Active Adult Living Unit within the Project shall require the written consent of the District, which shall not be unreasonably withheld. The form for written consent is attached as Exhibit E.
ARTICLE IV
BOLD PROGRAM
Section 4.1 BOLD Program. Prior to and as a condition of a Certificate of Compliance being issued for a building permit for any Residential Unit, the Parties shall use their commercially reasonable efforts and reasonably cooperate with CMFA to utilize the BOLD Program to form a CFD over the Project, through one or more Improvement Areas, authorize the special taxes, and authorize the issuance of one or more series of bonds issued for each Improvement Area within the CFD (“Bonds”) to finance the School Facilities, other School Improvements as approved by the LSFAC, and other Project infrastructure. The School Facilities Funding Plan anticipates the District will receive an estimated Forty Million Dollars ($40,000,000) (2025 dollars) through the CFD. The formation of the CFD and the Parties’ obligations under the process shall be governed by the standards and requirements of the BOLD Program to be administered by CMFA, in addition to the requirements set forth in this Agreement. The District and City shall have the right to review and provide input on the RMA for each Improvement Area within the CFD.
Lewis, the City and the District will enter into one or more acquisition agreements or joint community facilities agreements in form and substance satisfactory to Lewis, the City , and District, respectively, related to the CFD which shall govern the use of proceeds of Bonds and Surplus Special Taxes to finance the costs of acquisition of eligible public facilities and/or the financing of fees by Lewis as set forth in section 4.5 be low. The District and City may participate in the Bond sale, including reviewing all documents and participating in Bond pricing. The District and the City shall be entitled to reimbursement for staff, consultants and legal costs from either or both of the: (a) Lewis deposit related to the formation of the CFD and the designation of Improvement Areas or (b) proceeds from the sale of Bonds.
Section 4.2 CFD Name. The CFD shall be designated as Liberty at Lincoln CFD No. 1 or similar.
Section 4.3 Lewis Cooperation. Lewis shall cooperate with CMFA to provide for the formation of the CFD, designation of Improvement Areas and issuance of Bonds in a manner generally consistent with the School Facilities Funding Plan and this Agreement. Lewis shall, from time to time, deposit with CMFA funds sufficient to cover CMFA, District , and City costs (including both legal and consultant)
11 associated with the formation of the CFD, designation of Improvement Areas , and preparing and reviewing the acquisition agreements and/or joint community facility agreements. Prior to the issuance of Bonds, Lewis shall ensure that the District and the City have the opportunity to review and approve the proposed costs of issuance for the Bonds. If the District and the City disapprove of the proposed costs of issuance of the Bonds, the District and the City shall have the right to mutually agree to request reductions if such costs are inconsistent with costs generally applicable to the BOLD program and/or require CMFA to select replacement financing team members acceptable to the District and the City.
Section 4.4 Improvement Areas. The number of Improvement Areas shall be determined at the written request of Lewis. The Parties anticipate there will be six Improvement Areas. At the request of Lewis, the CFD may be formed with a future annexation area, in which case future Improvem ent Areas may be formed and annexed as determined by Lewis.
Section 4.5 Joint Community Facilities Agreements . The Parties agree the CFD will finance a portion of the costs of the School Facilities, as well as other infrastructure for the Project. Financing of the School Facilities will require the City and the District to enter into a joint community facilitie s agreement with CMFA prior to the issuance of any Bonds. The terms of each such joint community facilities agreement shall be consistent with the terms of this Agreement.
Section 4.6 Levy of Special Taxes and Issuance of Bonds. (1) Levy of Special Taxes. Pursuant to each RMA, CMFA shall levy Special Taxes on each assessor’s parcel within the CFD (or Improvement Area, as applicable) that is classified as “Developed Property” at the “Assigned Annual Special Tax” rate (as such terms are defined in the RMA) prior to and following the issuance of Bonds. Special Taxes in each Improvement Area shall have a maximum term of forty-five (45) years. Special Taxes shall escalate not in excess of 2% per year for each Improvement Area, and shall be structured at the f ormation of the CFD and the designation of each Improvement Area based on an assumed 1.80% effective tax rate when combined with all other property taxes. Once the School Facilities have been fully funded and all related obligations repaid, and when the final series of bonds of an Improvement Area have been repaid, the City shall have the discretion to request that CMFA reduce or eliminate the annual escalation of the Special Taxes of the Improvement Area. (2) Issuance of Bonds . The Parties shall work with CMFA and its underwriter to establish the term, years of serial or term maturities and the maximum number of months of capitalized interest for each series of Bonds; provided that in no event shall any Bonds have a term longer than 30 years. Prior to the issuance of any series of Bonds, Lewis shall submit to CMFA a written request to proceed with the sale of Bonds. The amount and timing for the actual issuance of Bonds shall be determined by CMFA and its under writer based on expected investor market acceptance of the status of development within the applicable Improvement Area. Pursuant to Section 8.2(i) the appropriate representatives of each Party will meet at least ninety (90) days prior to any Bond issuance to discuss the anticipated amount of issuance and to ensure Bonds will be issued appropriately in advance of when the District plans to begin the construction of the School Facilities, whereupon the District shall notify CM FA and Lewis whether it shall r eceive or defer its District Bond Proceeds Share (defined below), including any previous Share Deferral (defined below). Bond proceeds will be maximized, as determined by the bond underwriter for the BOLD
12 program, through multiple series based on the expected number of developed Residential Units in the Improvement Area and/or CFD.
Section 4.7 Application of Bond Proceeds. The proceeds of the sale of each series of Bonds shall be applied as follows:
(1) First Priority: To pay for costs of issuing the Bonds and reimbursing the Parties for the costs, including any legal and financial consultant fees and costs, of forming the CFD and preparing and reviewing the JCFA and this Agreement, including any exhibits attached thereto (collectively “Reimbursement Costs”).
(2) Second Priority: To establish a reserve fund for the Bonds (the “ Reserve Fund”) and fund capitalized interest on the Bonds for up to twelve (12) months. (3) Third Priority: To deposit into the school facilities account under the indenture or fiscal agent agreement for the Bonds (the “School Facilities Account ”) an amount equal to the
11.05% of the proceeds of each issuance of Bonds that are available after funding the First and Second Priority (“District Bond Proceeds Share”), unless the District has elected to not receive its share of the proceeds from the bond sale (a “Share Deferral”), in which case, the District will be entitled to receive the Share Deferral from the next bond sale first to be sufficient to generate the Share Deferral amount, adjusted by the Inflation Factor as defined below, in addition to the District Bond Proceeds Share during that bond sale. The “Inflation Factor” shall be the inflation factor applied by the State to the per pupil grant amount pursuant to Education Code section 17072.10 (i.e., the statewide cost index for class B construction as determined by the State Allocation Board and use d for the biennial adjusted for the State Mandated Fee) rounded to the nearest tenth. In the event there is a change in the SFP such that the State no longer allocates per- pupil grants, the Parties shall apply the Marshall & Swift Eight California Cities Class B Construction Index to determine the Inflation Factor. In the event the Inflation Factor is negative for a particular year, there shall be no Inflation Factor applied for that particular year. The District may request payment of the Share Deferral at any time amounts in the School Facilities Account are sufficient for payment thereof and all withdrawals from the School Facilities Account shall first be applied to any outstanding Share Deferral.
(4) Fourth Priority: To deposit into the City Account under the indenture or fiscal agent agreement for the Bonds (the “ City Account ”) any remaining proceeds to pay for , City infrastructure projects.
Section 4.8 Establishment of Funds.
(1) Reserve Fund. A portion of the proceeds from the sale of the Bonds shall be applied to fund the Reserve Fund in an amount equal to the “Reserve Fund Requirement,” as defined in the applicable fiscal agent agreement. Each fiscal year, interest earnings on the Reserve F und, in excess of any amount required to replenish the Reserve Fund Requirement shall be used to cure any delinquency on the Bonds then to make debt service payments on the Bonds. (2) School Facilities Account. Unless the District has submitted to the City and CMFA a notice indicating it has elected a Share Deferral, the District Bond Proceeds Share of the proceeds from the sale of the Bonds apportioned to finance the School Facilities shall be held in the School
13 Facilities Account established by the fiscal agent agreement. Interest earnings from the School Facilities Account shall be held within that fund and available for funding School Facilities. (3) City Account. The proceeds from the sale of the Bonds apportioned to satisfy the Project infrastructure shall be held in the City Account established by the fiscal agent agreement.
Interest earnings from the City Account shall be held within the fund and available f or funding Project infrastructure authorized to be financed by the CFD. (4) Cost of Issuance Fund. The proceeds of the Bonds apportioned to pay the costs of issuing the Bonds, forming the CFD , and reimbursing deposits made by Lewis pursuant to Section 4.3 above shall be held in a fund or account established by the fiscal agent agreement (“Cost of Issuance Fund”). Interest earnings from the Cost of Issuance Fund shall be held within that fund and available to pay the costs of issuing the Bonds, forming the CFD and reimbursing the Lewis deposits. Any proceeds remaining in the Cost of Issuance Fund not needed to pay such costs shall be applied and transferred in accordance with the priorities set forth in Section 4.7.
Section 4.9 Refunding. The Parties anticipate refinancing of each series of Bonds may occur approximately seven (7) years from the initial sale of Bonds for each Improvement Area (each a “Refunding”), as determined by CMFA to generate interest cost savings. The savings resulting from such any Refunding during the original 30- year term of the Bonds shall be capitalized to produce additional proceeds for the benefit of the District to be deposited in to the School Facilities Account. In no event shall any Refunding have a longer maturity date than the Bonds being refunded.
Section 4.10 Surplus Special Taxes (Pay-As-You-Go Revenue). (1) Priorities. Special Taxes levied in each Improvement Area and collected each fiscal year in excess of the amount required (i) to pay principal and interest on the outstanding Bonds, (ii) pay “Administrative Expenses” (as defined in the financing documents) and (iii) replenish the reserve fund for the Bonds to the Reserve Fund Requirement shall be referred to as “Surplus Special Taxes.” Any Surplus Special Taxes collected during the life of the CFD shall first be allocated to the School Facilities (as defin ed and related obligations including the acquisition of the School Site) and then to other CFD eligible facilities or fees as approved by the LSFAC. The LSFAC shall review , prioritize and approve the allocation of Surplus Special Taxes as follows :
first, towards the acquisition of the School Site and construction of the School Facilities and any School Facilities related debt repayment (“Surplus Special Tax First Priority ”); and then towards (with no priority preference) Public Safety Facilities/Infrastructure, Reimbursement of City contribution of Non -Critical PFE Equivalent, School Improvements, early retirement of outstanding Bonds, or other eligible uses (“Surplus Special Tax Second Priority”). (2) LSFAC Approvals. Any member of the LSFAC may convene a meeting to either discuss or call for a vote to approve the allocation of Surplus Special Taxes. The LSFAC must meet at a mutually agreeable time and place within thirty (30) days upon receipt of a written notice from a member to convene a meeting. The LSFAC must agree by majority vote for allocation of Surplus Special Taxes for the School Facilities or Surplus Special Tax Second Priorities other than School Improvements. The LSFAC must unanimously agree to any allocation of Surplus Special Taxes for School Improvements. A unanimous agreement of the LSFAC means affirmative votes from the City Council representative , the District’s Board representative, and the Lewis
14 representative. All other allocations may be agreed to by a majority vote of the LSFAC. Once the LSFAC approves the allocation of Surplus Special Taxes (subject to City Council override for Surplus Special Tax Second Priority items), the LSFAC shall have no authority over the recipient’s expenditure of the funds. Any recipient of Surplus Special Taxes is solely responsible for expending funds in any lawful manner and as authorized by the CFD. (3) City Council Override for Surplus Special Tax Second Priority. After all Surplus Special Tax First Priority funding obligations have been fulfilled, within thirty (30) days of the LSFAC approval of a Surplus Special Tax Second Priority item, the City Council may, by majority vote, override the recommendation and approval of the LSFAC for use of the Surplus Special Tax for an alternative Surplus Special Tax Second Priority.
ARTICLE V
DISTRICT RESOURCES
Section 5.1 State Funding. During the term of this Agreement, various sources of school construction funding may be available to District from the State of California or from other sources of public funding. District agrees to undertake active, continued and good faith efforts to seek funds from public sources intended for School Facilities, including the School Facilities Program. District will seek State funds in accordance with this Agreement associated with the planning, design, development, acquisition and construction of the School Facilities. The parties shall cooperate fully with each other and any of their consultants or representatives retained in connection with the District’s obligations in this Section 5.1. The Parties acknowledge that the use of State Funding in connection with the acquisition of the School Site and construction of School Facilities may give rise to an audit by the Office of Public School Construction, State Allocation Board or other state agency (any or all such entities constitute the “Auditing Agency”) pursuant to Title 2, Section 1859.106 of the California Code of Regulations or other applicable law (the “Audit”). Upon receipt of notice that an Auditing Agency intends to conduct an Audit, District shall immediately notify Lewis and City, whereupon Lewis and City shall reasonably cooperate with and assist each other and the District in connection with the Audit , at the District’s cost, with the aim of ensuring that the Audit does not result in an adjustment of the apportionment of St ate Funding, collection or reimbursement procedures, or any other actions or determinations that may require District to surrender or reimburse any or all such State Funding to the State, forego future State Funding allocations, to have funds deducted from State Fundings allocations, or otherwise to lose all or any part of the State Funding allocation.
Section 5.2 Bridge Financing. The Parties recognize even if the District is approved to receive State Funding, it is unlikely that the District will receive such funds before the acquisition of the School Site and construction of the School Facilities. As a result, the District may utilize appropriate financing methods such as certificates of participation, lease-purchase agreements, interfund borrowing, or any other financing method authorized by law (“Bridge Financing”) to facilitate the acquisition of the School Site and construction of the School Facilities, as reflected in the School Facilities Funding Plan. The District’s use of Bridge Financing is conditioned on approval by its Governing Board. Any State Funds received by the District will first be used to retire Bridge Financing debt, before satisfying any of District’s outstanding obligations under this Agreement. In the event that Bridge Financing is not economically feasible on the timeline expressed in the School Facilities Funding Plan, the District may i mplement a phasing plan for construction of the School Facilities.
15 Section 5.3 No Obligation of General Fund or Other Developer Fee Resources. At District’s sole discretion, and subject to approval by the District’s Governing Board, the District may utilize its general fund, statutory developer fees collected outside of the Project , or other funding sources to construct the School Facilities. Notwithstanding this option, at no time during this Agreement shall the District have an obligation to use such other resources to complete construction of the School Facilities or pay the Special Note. Except as required by law, the use of such developer fees collected outside of the Project shall not entitle students from outside of the Project to attend the TK-8 School unless there is excess capacity after all Project students are enrolled at the TK-8 School.
ARTICLE VI
CITY CONTRIBUTIONS
Section 6.1 Park Credit. City has established a Public Facilities Element (“ PFE”) Fee Program based on a 2022 nexus study required by the Mitigation Fee Act. Lewis is required to pay the City a PFE Parks and Trails Fees for all of the Residential Units in the Project. The City and Lewis shall enter into a separate agreement providing for approximately a Six Million Dollars ($6,000,000) PFE development impact fee credit (“Park Credit”) based on Lewis’s obligation to provide the Park. The final amount of the Park Credit will be dependent on the park build out and contingent upon the provisions for reimbursement or credit with the City’s PFE program. The Park Credit shall be applied to each Residential Unit in the Project as each building permit is issued for the Residential Units until the Park Credit is exhausted.
Section 6.2 Joint Use Contribution. Once the Park is operational and available for joint use, the City shall make an annual payment of $200,000 to the District for thirty (30) years, adjusted annually by two percent (2%) for inflation (“ Annual Contribution”) for construction, furnishing, maintenance and repair of the Joint Use Facilities . In addition, the City shall pay to the District, on an annual basis, an amount equivalent to the City’s PFE Non-Critical Facilities Fee collected for all Residential Units in the Project (“Non-Critical PFE Equivalent ”, and together with the Annual Contribution, the “City Joint Use Contribution”). In exchange, the District shall provide joint use of the Joint Use Facilities to the City in proportion to the City Joint Use Contribution. The District and City shall separately enter into a joint use agreement ( “JUA”) setting forth in greater detail the terms and methods for payment and the City and District’s use of the Joint Use Facilities , to be approved by the City Council and District Governing Board within twelve (12) months of execution of this Agreement.
ARTICLE VII
TK-8 SCHOOL SITE
Section 7.1 Reservation of School Site. Lewis shall reserve the New School Site for the purpose of conveying it to the District as provided herein, unless and until it is sold to the District or released by the District. Lewis shall continue to retain and reserve the Current School Site until the District releases Lewis in writing from reserving the Current School Site. The School Site shall be subject to final approval by the CDE and shall comply with the applicable provisions of the “School Site Selection and Approval Guide”, or any successor guidelines prepared by CDE. If CDE does not find the School Site acceptable or the District is otherwise not able to obtain the School Site Approvals, Lewis shall use its commercially reasonable efforts to assist the District in finding an alternative school site acceptable to the District and CDE located within the Project. If CDE does not approve the School Site or in the event , the District is
16 only able to construct a TK -5 school on the School Site, the Parties shall meet and confer as to whether the Parties must amend the Agreement.
Section 7.2 Covenant To Sell School Site . Lewis agrees to sell the School Site to the District in Construction Ready Condition, and the District agrees to purchase the School Site, in accordance with the terms and conditions of this Agreement and the Purchase and Sale Agreement, a form of which is attached hereto and incorporated herein as Exhibit D. The District and Lewis shall enter into the Purchase Agreement upon written notice delivered to Lewis (the “Acquisition Notice”) at least nine (9) months but no more than twelve (12) months prior to the anticipated start date of construction of the School Facilities.
The District shall commence construction of the School Facilities within one year of acquiring the School Site. The District shall provide the Parties a comprehensive construction schedule during the Annual Meeting (defined below) . The District shall inform the Parties of any significant changes to the construction schedule, including delays due to insufficient funds or failure to obtain School Site approvals (defined below), at any design review meeting described in Section 8.2(ii) of this Agreement.
Section 7.3 Determination of Purchase Price. The District shall purchase the School Site for a total purchase price (“Purchase Price”) based upon an appraisal for the School Site to be obtained by the District within six (6) months of acquisition (“ Appraised Value ”) plus the cost of any School Site Development Costs as defined in Section 7.6(3). The appraisal shall be based upon the fair-market value of the School Site based on its highest and best use , which is currently medium -density residential, in Construction Ready Condition. The Purchase Price may be satisfied by delivery of a Special Note in the form attached as Exhibit B to the Purchase and Sale Agreement attached hereto as Exhibit D. The Special Note shall be paid in full within thirty (30) days of the latest of : (i) the date the City issued building permits for ninety -five percent (95%) of all approved Residential Units within the Current Developer Property; (ii) the date District receives State Funding together with other Special Note Revenues in a sufficient amount to repay the Special Note ; or (iii) seven (7) years after the District receives final DSA close out of the School Facilities. The Parties acknowledge that any payment of the Special Note will occur after the Close of Escrow.
Section 7.4 Not Debt of the District. The Special Note is a limited obligation of the District and is payable, both as to principal and interest from State Funding, Developer Fees, Surplus Special Taxes (to the extent available under the bond financing documents), and any other Payment Sources available (with the exception of Bond proceeds), excluding general funds (“Special Note Revenues”). The general fund of the District is not liable for the payment of the Special Note or its interest. The Special Note is not secured by a legal or equitable pledge of, or charge, lien or encumbrance upon, any of the property of the District or any of its income or receipts, except the Special Note Revenues. No owner of the Special Note shall ever have the right to compel any exercise of the taxing power of the District to pay this Special Note or the interest hereon.
Section 7.5 Approvals District will complete all due diligence review s of the School Site and secure the approval of all applicable state agencies (including, as such agencies may be revised or modified by the State of California from time to time, the DSA, the SFPD, and the DTSC as required by law (collectively, the “ School Site Approvals ”), and will provide Lewis written notice the School Site is acceptable to District. The District shall be responsible for the design of the School Site and School Facilities. Except for the improvements performed by Lewis to deliver the School Site in a Construction Ready Condition, the District shall be responsible for the construction of the School Facilities.
17 Section 7.6 School Site Development. Lewis shall deliver the School Site subject to the conditions set forth in this Section. Improvement to the School Site for delivery in “Construction Ready Condition” as set forth below, will be considered in the appraisal and the determined Appraised Value.
All other improvements by Lewis are developer-built School Site Development Costs. (1) Construction Ready Condition. Lewis shall deliver the School Site in a Construction Ready Condition upon Close of Escrow. The Parties estimate the costs to be incurred by Lewis to deliver the School Site in a Construction Ready Condition is One Million, Eight Hundred Thousand Dollars ($1,800,000.00) (“Construction Ready Costs”). (2) “Construction Ready Condition ” means, unless otherwise agreed in writing by the Parties, the School Site being rough graded to master pad conditions as described in the plans for development of the School Site, including:
(i) one hundred percent (100%) useable to construct public school structures upon without any specific engineering and design costs due to topographic conditions (uniformly graded to no more than 2% plus or minus 0.2’);
(ii) utilities stubbed to the property line of the site (across any existing joint trenches if present), including domestic water, water service for fire loop, sewer, and any other utility service including but not limited to conduit and wiring, etc., all sized adequately for the School Facilities;
(iii) curbs, gutters, sidewalks, driveways, roadways, landscaping and irrigation, signals if required and approved by the City, signage, street lighting, crosswalks, in and on all adjacent rights-of-ways;
(iv) perimeter block walls (6’ high) along the property lines on the sides of the school site adjacent to land uses other than open space, agricultural, unless required by the California Department of Education, or parks if part of the overall project design and not otherwise provided for in the specific school design; and
(v) work necessary to prepare site for school building construction, including on-site drainage, and required retaining walls unless these items are part of the bid drawings of a particular school; including SWPPP and temporary measures required to maintain condition of site after completion of this portion of work.
(vi) In addition, Construction Ready Condition requires the School Site to be in accordance with the standards for school site construction, as approved by the DSA or other applicable approving authority relating to off -site utility services (e.g., water, sewag e, gas electricity, telephone, computer cable); off -site development (outside of property lines of the school to include pavement of adjacent streets, curbs and gutters, sidewalks, street lighting, planting areas and parkway landscape, street signs, traffic signals as required and approved by the City, street trees, off-site rough and final grading, off-site driveways and aprons); and service site development (site clearance, demolition, removal/relocation of utility services, rough grading, soil compaction, on-site drainage facilities, erosion control and embankment improvements).
18 (vii) In addition, Construction Ready Condition requires the School Site to be in accordance with the standards set by the CDE, OPSC and the DTSC. (viii) In addition, the School Site shall have a width to depth ratio of no more than 2:1, except as mutually agreed upon, and shall be free and clear of encumbrances that would affect the District’s ability to use the site for its intended purposes. (3) Park Condition. Lewis shall deliver that portion of the School Site identified as the Park in a condition agreed to by both the District and Lewis in writing, but at least commensurate with other regional parks in the City of Lincoln and in conformance with the standards for school site construction, as approved by the DSA. Unless otherwise agreed to by the District and Lewis in writing, Lewis shall deliver the Park in the agreed upon condition upon Close of Escrow. The Parties estimate the value of the completed Park to be Two Million Eight Hundred Thousand Dollars ($2,800,000.00), but the actual costs incurred to design, engineer, and complete the Par k shall be determined following the completion of the Park (“School Site Development Costs”). (4) Prevailing Wages . Lewis shall cause all contractors, subcontractors and other workers employed by it in connection with the construction of the Park to be paid not less than the general prevailing rate of per diem wages established by the Department of Industrial Relatio ns for work of similar character in Placer County.
(5) Development Costs. Lewis agrees to thoroughly document all costs and expenses incurred to develop the School Site to the conditions set forth herein, and timely provide copies of such records to the District upon request. For the purposes of accounting, such costs and expenses shall be identified as either Construction Ready Costs or School Site Development Costs. The Parties recognize that the normal application process to obtain State Funding for site acquisition, site development and construction does not explicitly address the construction or funding of a partially developer-built school facility. As a result, the parties agree to commit continued and diligent efforts to work with staff at OPSC and the SAB to complete such forms and provide such documentation as may be necessary to establish eligibility and obtain State Funding.
Section 7.7 Design and Construction of School Facilities. The District shall consult with the Lewis and City regarding the design and construction of the School Facilities, and Lewis and City shall be invited to serve on any design committee for the School Facilities. However, the design responsibility and all final decisions relating to the School Facilities shall remain with the District. Nothing herein shall be deemed or construed as limiting the District’s discretion and sole determination as to the type, quality, configuration, furnishing, furniture, fixtures, equipment, and construction requirements for each of the School Facilities.
Section 7.8 District License. Lewis hereby grants to the District a non- exclusive license to enter in and upon the School Site prior to the delivery of the School Site for purposes set forth in the Purchase Agreement and to determine the feasibility of using the School Site as a site for construction of the School Facilities, including examination of the physical, geological, environmental or other condition of the School Site (“District License”). The District License shall include, but is not limited to, allowing the District and District Agents to enter, cross over, on, along, through and across the School Site (and other property owned or controlled by Lewis as necessary for access to the School Site) for all activities undertaken pursuant to this Article. The District License is granted subject to any covenants, restrictions,
19 reservations, rights of way, and encumbrances of record. If possible, the District shall enter the School Site from a public right of way. If escrow of the School Site fails to close for any reason, the District shall restore the School Site to the condition existing on the site ab sent District entry on the School Site. The District License shall expire automatically upon any cancellation of escrow or upon closing of escrow of the School Site. The District shall comply with all applicable laws and regulations in connection with its activities on the School Site.
Section 7.9 Indemnification by District. The District shall indemnify, defend and hold harmless Lewis (including its directors, officers, managers, employees and agents) from and against any liabilities, claims, demands, actions, judgments, expenses and costs, resulting from activities on the S chool Site by the District or the District Agents pursuant to the District License, including, but not limited to, any loss of or damage to property or injury or death of any person whomsoever, and any mechanic liens, materialmens liens, or other lien. With respect to any incident occurring prior to closing of escrow of the School Site or any earlier termination of the District License, the indemnification obligation set forth in this Section shall survive, as applicable, termination of this Agreement, cancellation of escrow, closing of escrow and/or termination of the District License.
Section 7.10 District Insurance . Prior to entry onto the School Site pursuant to the District License, the District shall obtain, and shall thereafter maintain until the termination of the District License, a policy of commercial general liability insurance providing coverage in the fac e amount of one million dollars ($1,000,000) for all activities conducted by District and the District Agents on the School Site prior to the close of escrow (“District Liability Policy”). The District Liability Policy shall name Lewis as an additional insured. Prior to entering the School Site, the District shall provide Lewis a “Certificate of Insurance” to evidence that the District Liability Policy is in full force and effect. The Certificate of Insurance shall require that the ins urer provide written notice to Lewis not less than thirty (30) calendar days prior to any cancellation, termination or expiration without renewal, except in the case of termination for non-payment of premium, in which case the insurer shall provide written notice to Lewis not less than ten (10) calendar days prior to termination. Provided it satisfies all requirements set forth herein, a policy of insurance obtained through a joint powers agency of which the District is a member shall satisfy the obligation of the District to obtain and maintain the District Liability Policy.
ARTICLE VIII
MEET AND CONFER
Section 8.1 Annual Meet and Confer. The Parties shall select appropriate representatives to meet at least annually during the term of this Agreement to review the status and funding of the School Facilities. This meeting (the “Annual Meeting”) shall occur by March 31 st of each year. At the Annual
Meeting, the Parties shall review the following information:
(1) Lewis will advise the Parties on the status of the Project’s development plans, including but not limited to: (i) modifications to the timing and product phasing of future construction; (ii) modifications to the housing type (i.e. single -family, multi-family, high-density condominiums and active adult, etc.) and products offered (“for sale” one, two and three bedroom attached units, apartment rental units, etc.); (iii) a summary of the housing types and products to be constructed by including square foot size and number of bedrooms; and (iv) the current status of the School Site development and Park.
20 (2) The District shall provide the Parties a status update on the District’s future student projections for a period of five years; school site approval by CDE; applications for State Funding; the current state of the School Facilities Funding Plan; the District’s draft SFNA and proposed Developer Fees for the upcoming year ; and a comprehensive schedule regarding the status of design and anticipated construction of the School Facilities. The schedule will identify the month the District intends to provide Lewis the Acquisition Notice and the estimated Close of Escrow. (3) The Parties will discuss the CFD, the Improvement Areas, projected Bond issuances, repayment plan, distribution of proceeds, the School Facilities Funding Plan and Payment Sources. It is the intent of the Parties to evaluate whether the Payment Sources and School Facilities Funding Plan continue to meet expectations regarding anticipated funding levels necessary to construct the School Facilities and service debt obligations.
Section 8.2 Milestone Meetings. During the term of the Agreement until DSA close- out of the School Facilities and in addition to the Annual Meeting, the Parties shall meet as needed to address the following items:
(i) School Facilities Funding : The Parties shall work collaboratively and in good faith to review and update the School Facilities Funding Plan. The Parties will select appropriate representatives to meet at least ninety (90) days prior to any intended Bond issuance to identify the average assessed value of each Improvement Area, any anticipated Refunding or estimated savings pursuant to Section 4.9, and any proposed GO Bond issuance by the District subject to the Carveout Period described in Section 9.1. (ii) Design Review: It is the intent of the Parties that the Parties cooperate in a collective, timely, good faith, and reasonable manner to facilitate the planning, design and construction of the School Facilities and Park consistent with the provisions of this Agreement.
The City shall have the right to review any plans associated with the Park as provided in Section
10.2 below. However, the District shall have sole discretion over the design, quality, site plans, and any amenities construction for all School Facilities.
ARTICLE IX
GO BOND CARVE OUT
Section 9.1 GO Bond Election Carveout. To the extent permitted by law, for a period of ten (10) years from the first issuance of Bonds (“Carveout Period”), the District will not place a new measure on the ballot for GO Bond that includes the Developer Property without the written approval of Lewis in its sole and absolute discretion. Except with the written consent of Lewis, the District shall not include the Developer Property in any SFID , other community facilities district (excepting the CFD), assessment district, or other financing. At the conclusion of the Carveout Period, the District may seek approval for the authorization of a GO Bond or other financing of capital improvements that will be payable, in part from all or any part of the Developer Property. Lewis shall not oppose the District from seeking authorization of GO Bonds that includes the Developer Property following the conclusion of the Carveout Period.
21 ARTICLE X
JOINT USE FACILITIES
Section 10.1 Joint Use Facilities. The Joint Use Facilities will be for joint use by the City and District. City and District agree to enter into a separate joint use agreement that will define the Parties’ rights and obligations with regard to joint use of the Joint Use Facilities.
Section 10.2 Design of the Joint Use Facilities. The City will review and provide input on the design for the Park, including lighting and accessibility needs, prior to the District submitting the plans to DSA for approval. The City’s review of the plans shall take no longer than fifteen (15) business days.
Section 10.3 Naming Rights. The City shall have the right to name the Park in a manner consistent with the District’s naming policies. Any name proposed by the City must be submitted to the District and approved by the District’s Governing Board prior to the City submitting the Park name to the City Council for approval.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.1 Agreement Runs With Land. This Agreement is created for the benefit of Lewis and the Project. Subject to the limitations set forth herein, the covenants of this Agreement shall run with the land constituting the Current Lewis Property. Lewis agrees for the benefit of District that the Current Lewis Property and any portion of the Annexed Property acquired by Lewis shall be held, transferred, and encumbered subject to the provisions of this Agreement which are for the use and benefit of the District, Lewis, the Project and of each and every person who now or in the future owns any portion or portions of the Project. Either Party to this Agreement may cause this Agreement to be recorded on the Current Lewis Property with the Recorder’s Office of Placer County and shall reasonably cooperate to prepare or provide any further documents and signatures necessary for the recording of the terms of this Agreement with respect to Annexed Property subsequently acquired by Lewis. Lewis shall cause this Agreement to be recorded with the Recorder’s Office of Placer County on title for the Annexed Property within thirty (30) days of Lewis, or any of its affiliates, taking title to the Annexed Property.
Section 11.2 No Impairment of Contract. The Parties are entering into this Agreement, in part, for the purpose of creating a stream of Special Tax revenues that will be available to the CFD to pay directly the costs of acquisition, construction and/or equipping of School Facilities and other C FD-eligible fees and facilities and to pay debt service on Bonds and other indebtedness of the CFD, the proceeds of which will be used to pay the costs of acquisition, construction and/or equipping of the School Facilities and other CFD-eligible fees and f acilities. Parties hereby acknowledge and agree (i) that any reduction or termination of the Special Taxes by exercise of the initiative power or the exercise of the discretion of CMFA or the CFD would constitute a substantial impairment of the Special Ta x revenue stream that the Parties and the CFD intend to create for the purpose of providing an assured source of funding for the School Facilities, (ii) such an impairment of the special tax revenue stream would result in an impairment of this Agreement, a nd (iii) that this Agreement is being entered into, and the Special Taxes are being imposed upon the property in each Improvement Area pursuant to the RMA in accordance with existing laws relating to the imposition of fees and charges as a condition of property development and such Special Taxes are being incurred as an incident of the voluntary act of development of such property.
22 Section 11.3 Assignability of Agreement. Lewis shall have the unconditional right to assign any right or obligation under this Agreement to anyone at any time. Lewis shall give written notice to City and District of such assignment, and Lewis shall require any assignee to enter into an assignme nt agreement specifically assuming the rights and obligations of this Agreement. A copy of the assignment agreement shall be provided to the City and District following its execution. Whenever this Agreement provides Lewis with a right, that right may be exercised by an assignee of that right to the same extent that Lewis could have exercised that right itself.
Section 11.4 Authority and Cooperation, Binding on Successors. The Parties represent and warrant to the other that they are duly authorized to enter into this Agreement and to be bound by its terms, and that this Agreement does not conflict with any other agreement, contract, document or law to which either may be bound or subject. Lewis and their successors and assigns agree to fully cooperate with CMFA in complying with Rule 15c2-12 of the Securities and Exchange Commission in connection with the issuance and sale of Bonds so long as Lewis or any of their successors or assigns is an “obligated person” under Rule 15c2-12. The parties recognize that California SB 165, Chapter 535 of the Statutes of 2000, became effective on January 1, 2001. SB 165 provides new disclosur e and reporting requirements for any local bond measure that is the subject of voter approval, and which would provide for the sale of Bonds by a local agency. Lewis agrees fully and completely to cooperate with CMFA in meeting the requirements of SB 165. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto.
Section 11.5 Disputes. If a dispute arises relating to the interpretation of, enforcement of, or compliance with the terms of this Agreement, the Parties shall first attempt to resolve such dispute through informal discussions or other alternative means. Any Party may convene such discussions by written notice and shall reasonably accommodate the other Party with respect to scheduling any such discussion.
If the dispute is not resolved in this manner within thirty (30) days of such written notice, it shall be referred to mediation upon the request of either Party for a period not to exceed an additional thirty (30) days. This dispute resolution process shall be undertaken in good faith and exhausted prior to judicial review. However, compliance with this process does not waive any Party’s obligation to comply with, or right to assert as a defense, any applicable statutes of limitation. The Parties may agree in writing to toll any applicable statutes of limitation for such period as may reasonably be necessary to com plete the dispute resolution process outlined in this section.
Section 11.6 Successors and Assignees . All terms and conditions of this Agreement shall be binding upon all successors -in-interest, including without limitation purchasers of all or any part of the Project. In the event that Lewis transfers title to all or a portion of the Project, then such successor or assign shall be required to fulfill Lewis’s obligations under this Agreement for that certain portion of the transferred Project. Lewis shall be released from the obligations under this Agreement which apply to the transferred portion of the Project. For that portion of the Project that is not transferred, Lewis’ obligations under this Agreement shall remain in full force and effect. Prior to any such transfer or assignment, Lewis shall also notify the District in writing of the name of the success or or assign and all appropriate contact information for the District’s records.
Section 11.7 Termination as to Individual Residential Units. This Agreement shall automatically be terminated, without any further action by either Party or need to record any additional document, with respect to any Residential Unit within a parcel designated in any final map for the Project for residential use, upon completion of construction and issuance by the City of a final inspection for a dwelling unit
23 upon such residential lot and conveyance of such improved residential lot by Lewis or any Merchant Builder to a bona-fide good faith purchaser thereof. The Parties agree, at no additional cost, expense, or liability to the District, to execute such further commercially reasonable documents as may be necessary to carry out the intentions of this Agreement. This Section is not intended to apply to termination of the Agreement as to Lewis, its successors, or any other developer of the Project.
Section 11.8 Headings. The headings of this Agreement are for convenience purposes only and shall not limit or define the meaning of the provisions of this Agreement.
Section 11.9 Governing Law and Venue. This Agreement shall be construed in accordance with, and governed by, the laws of the State of California applicable to contracts to be performed wholly within this State. Any dispute arising from the terms and conditions of this Agreement shall be heard by a court of competent jurisdiction located within Placer County.
Section 11.10 Attorneys’ Fees and Costs . In the event of any legal proceeding or alternative dispute resolution proceeding, including any lawsuit, action, or proceeding in law or equity, arising out of or relating to this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and costs arising from the proceeding, including expert witness fees, not to exceed the total attorneys’ fees and costs incurred by the Party incurring fewer fees. The prevailing Party on any appeal shall also be entitled to recover its reasonable attorneys’ fees and costs arising out of any such appeal, not to exceed the total attorneys’ fees and costs incurred by the Party incurring fewer fees. In addition to the foregoing attorneys’ fees and costs, the prevailing Party shall be entitled to its attorneys’ fees and costs incurred in any post-judgment proceedings to collect or enforce the judgment. This provision is separate and several and shall survive the merger of this Agreement into any judgment on this Agreement.
Section 11.11 Construction. The singular includes the plural, “shall” is mandatory, and “may” is permissive. The Parties acknowledge and agree the each of the Parties and each of the Parties’ attorneys have participated fully in the negotiation and drafting of this Agreement. In cases of uncertainty as to the meaning, intent or interpretation of any provision of this Agreement, the Agreement shall be construed without regard to which of the Parties caused, or may have caused, the uncertainty to exist. No presumption shall arise from the fact that particular provisions were or may have been drafted by a specific Party, and prior versions or drafts of this Agreement may be used to interpret the meaning or intent of this Agreement or any provision thereof.
Section 11.12 Notices. Any notice to be given hereunder to either Party shall be in writing and shall be given either by personal delivery (including express or courier service), by receipt -confirmed facsimile, or by registered or certified mail, with return receipt requested, and postage prepaid (excluding electronic messaging) and addressed as follows:
To District:
Western Placer Unified School District
ATTN: SUPERINTENDENT
600 Sixth Street, Suite 600
Lincoln, CA 95648
24 With a copy to Legal Counsel:
Lozano Smith
Attn: Megan E. Macy
1 Capitol Mall, Suite 640
Sacramento, CA 95814
To City:
City of Lincoln
Attn: City Manager
600 Sixth Street
Lincoln, CA 95648
With a copy to Legal Counsel:
City of Lincoln
Attn: Kristine Mollenkopf, City Attorney
600 Sixth Street
Lincoln, CA 95648
To Lewis:
Lincoln Land Holdings, LLC
Attn: Phil Rodriguez
Lewis Management Corp.
9216 Kiefer Blvd.
Sacramento, CA 95826
With a copy to Legal Counsel:
O’Neil LLP
Attn: John P. Yeager, Esq.
19800 MacArthur Blvd., Suite 650
Irvine, CA 92612
With a copy to Lewis General Counsel:
Lewis Management Corp
Attn: W. Bradford Francke.
1156 North Mountain Ave.
Upland , CA 91785
Section 11.13 No Joint Venture. The relationship of the Parties to this Agreement is determined solely by the provisions of this Agreement. This Agreement does not create and shall not be construed to create any agency, partnership, joint venture, trust or other relationship with dut ies or incidents different from those of parties to an arm’s-length contract.
Section 11.14 No Further Assurances. Nothing in this Agreement, whether express or implied, is intended to or shall do any of the following: (a) confer any benefits, rights or remedies under or by reason of this Agreement on any persons or entities other than the express Parties to this Agreement; (b) relieve or discharge the obligation or liability of any person not an express party to this Agreement; or (c) give
25 any person not an express party to this Agreement any right of subrogation or action against any Party to this Agreement.
Section 11.15 Time is of the Essence. Time is of the essence in the performance of each Party’s respective obligations under this Agreement.
Section 11.16 Amendments and Waivers . No amendment of, supplement to, or waiver of any obligations under this Agreement shall be enforceable or admissible unless set forth in writing signed by the Party against which enforcement or admission is sought. No delay or failure to require perfor mance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance. Any waiver granted shall apply solely to the specific instance expressly stated in a writing signed by the Parties.
Section 11.17 Entire Agreement. This Agreement sets forth the entire understanding of the Parties relating to the transactions it contemplates, and supersedes all prior understandings relating to them, whether written or oral. There are no obligations, commitments, representations, or warranties relating to them except those expressly set forth in this Agreement.
Section 11.18 Severability. If any provision of this Agreement is held invalid, void or unenforceable by a court of competent jurisdiction, but the remainder of the Agreement can be enforced without failure of material consideration to any Party, then this Agreement shall not be a ffected and it shall remain in full force and effect, unless amended or modified by mutual consent of the Parties.
Section 11.19 Execution in Counterparts . This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and counterpart signature pages may be assembled to form a single document which shall be deemed an original document. Consolidated signature pages shall be compiled by District and forwarded to Lewis and City to constitute each Party’s executed copy of the Agreement.
Section 11.20 Signatures. By signing below, each of the signatories represents and warrants that he or she has been duly authorized to execute this Agreement on behalf of the Party on whose behalf he or she is signing.
Section 11.21 Eminent Domain . Nothing in the Agreement shall prevent the District from exercising its rights of eminent domain pursuant to law.
Section 11.22 Represented by Counsel . Each Party hereto acknowledges that it has been represented by legal counsel, or had the opportunity to obtain legal counsel and consciously chose not to obtain it, in the negotiation, drafting, and execution of this Agreement. [SIGNATURES ON FOLLOWING PAGE]
26 IN WITNESS WHEREOF, this Agreement has been entered into by and between the Parties of the last date set forth below.
WESTERN PLACER UNIFIED
SCHOOL DISTRICT
By: _____________________________
Name: Kerry Callahan
Its: Superintendent
Date: _______________, 2025
LINCOLN LAND HOLDINGS, LLC
By: Lewis Management Corp., Its
Manger
By: _____________________________
Name: John M. Goodman
Its: Sr. Exec. VP/CEO
Date: _______________, 2025
CITY OF LINCOLN
By: _____________________________
Name: Sean Scully
Its: City Manager
Date: _______________, 2025
27 EXHIBIT A-1
Current Lewis Property
28 EXHIBIT A-2
Annexed Property
29 EXHIBIT B-1
Current School Site and Land Use Designation
30 Exhibit B-2
New School Site and Land Use Designation
31 EXHIBIT C
School Facilities Funding Plan
32 EXHIBIT D
Purchase And Sale Agreement
33 Exhibit E
Form of Written Consent
Western Placer Unified School District
Request to Assign Prepaid Developer Fees
Instructions to Lewis/Merchant Builders: Fill in and sign the attached form and return to the District office. District will review and return a copy of this form indicating its approval or disapproval within ten (10) business days.
As evidenced by the signatures below_______________[insert Lewis or Merchant Builder] (the “Assigning Party”) wishes to transfer and assign prepaid Developer Fees from Residential Unit _________________[insert address or parcel number]_to the Residential Unit _______________ [insert address or parcel number] (“Assigned Unit”), and _____________ [insert Lewis or Merchant Builder] (the “Accepting Party”) wishes to accept the prepaid fees for the Assigned Unit.
The Accepting Party hereby acknowledges that it assumes Lewis’ obligations under the SFA pursuant to the payment of Developer Fees for Assigned Unit___________, and that Accepting Party shall be responsible for any underpayment of Developer Fees at the tim e Accepting Party pulls its Building Permit for the Assigned Unit.
ASSIGNING PARTY
___________________________
By: _______________________
Name: _____________________
Title: ______________________
Date: ______________________
ACCEPTING PARTY
________________________
By: _______________________
Name: _____________________
Title: ______________________
Date: ______________________
For District Use:
Western Placer Unified School District (“District”) hereby acknowledges that it has received the prepayment of Developer Fees in the amount of _____________ ($____________) on ______ [insert date] for Residential Unit___________ [insert address or parcel number] for _________ square feet of assessable space, from _______________ ___ [insert Lewis or name of Merchant Builder] pursuant to the School Facilities Agreement between District and Lincoln Land Holdings, LLC (“Lewis”) dated ________ (“SFA”).
District approves the assignment of prepaid fees to the Accepting Party.
District disapproves the assignment of prepaid fees to the Accepting Party.
Name: ________________________________
(District Signature) _________________________________ Date: _________________
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LINCOLN VILLAGE 7B AND VILLAGE 5B ANNEXATION
CURRENT LAND USE PLAN
CITY OF LINCOLN CALIFORNIA
10/24/2024
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LIBERTY PARKWAY
Lincoln, CA
PROPOSED ILLUSTRATIVE LAND USE PLANLINCOLN VILLAGE 7November 4, 2024 N
0 400800200SCALE: 1"=400'
Framework Liberty at Lincoln TK-8 School Preliminary Cash Flow 2025-26 2026-27 2027-28 2028-29 2029-30 2030-31 2031-32 2032-33 2033-34 2034-35 2035-36 2036-37 2037-38 2038-39 2039-40 2040-41 After 2040-41 Total Residential Units
Single Family 116 160 160 160 166 138 140 143 150 150 150 150 154 176 176 176 0 2,465 Multi-Family 0 0 60 242 183 0 67 23 0 0 0 0 0 0 0 0 0 575 Total Residential Units 116 160 220 402 349 138 207 166 150 150 150 150 154 176 176 176 0 3,040 Cumulative Residential Units 116 276 496 898 1,247 1,385 1,592 1,758 1,908 2,058 2,208 2,358 2,512 2,688 2,864 3,040 3,040 Student Generation
Total TK-5 38 52 77 152 130 45 74 56 49 49 49 49 51 58 58 58 0 1046 Total 6-8 16 21 26 40 36 18 24 21 20 20 20 20 21 24 24 24 0 373 Total 9-12 14 19 28 55 47 16 27 20 18 18 18 18 18 21 21 21 0 377 Total Students 67 93 131 247 213 80 124 98 87 87 87 87 89 102 102 102 0 1,797 Cumulative TK-5 Students 38 91 168 320 450 496 569 625 675 724 773 822 873 931 988 1,046 1,046 Cumulative TK-8 Students 54 128 231 423 589 652 750 827 896 966 1,035 1,104 1,175 1,257 1,338 1,419 1,419 Cumulative Total Students 67 160 291 538 751 831 955 1,053 1,140 1,227 1,314 1,401 1,490 1,592 1,694 1,797 1,797 Revenues
Level II Developer Fee $1,881,984 $2,595,840 $3,488,160 $6,194,864 $5,414,760 $2,238,912 $3,267,784 $2,662,088 $2,433,600 $2,433,600 $2,433,600 $2,433,600 $2,498,496 $2,855,424 $2,855,424 $2,855,424 $0 $48,543,560 CFD Bond Issuances [4] $0 $0 $3,906,197 $0 $2,264,660 $0 $0 $1,409,189 $0 $2,118,943 $0 $0 $0 $2,799,021 $0 $0 $1,554,863 $14,052,874 CFD Refunding Bonds $0 $0 $0 $0 $0 $0 $0 $5,944,214 $0 $0 $0 $3,446,221 $0 $0 $2,144,418 $0 $9,849,954 $21,384,808 CFD Pay-Go $0 $0 $0 $0 $0 $236,029 $240,181 $402,828 $411,288 $517,147 $519,343 $531,009 $692,709 $701,069 $662,493 $0 $0 $4,914,096 Lewis Funded Park Improvements (Cost Offset) [1] $0 $0 $0 $0 $0 $6,000,000 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $6,000,000 PFE Fee Revenues [2] $65,506 $90,354 $114,749 $188,749 $168,148 $77,930 $106,301 $90,105 $84,707 $84,707 $84,707 $84,707 $86,965 $99,389 $99,389 $99,389 $0 $1,625,800 Park Maintenance Payment (From City) - Monitized [3] $0 $0 $0 $0 $0 $3,200,000 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $3,200,000 State Funding [5] $0 $0 $0 $0 $0 $0 $0 $0 $0 $22,000,000 $0 $0 $0 $0 $0 $0 $0 $22,000,000 State Funding GAN (District Borrowing) [5] $0 $0 $0 $0 $0 $0 $20,000,000 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $20,000,000 District COP (District Borrowing) [5] $0 $0 $0 $0 $0 $0 $16,500,000 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $16,500,000 Total Revenues $1,947,490 $2,686,194 $7,509,107 $6,383,613 $7,847,568 $11,752,871 $40,114,266 $10,508,424 $2,929,594 $27,154,397 $3,037,650 $6,495,537 $3,278,170 $6,454,903 $5,761,724 $2,954,813 $11,404,817 $158,221,137 Cumulative Revenues $1,947,490 $4,633,684 $12,142,791 $18,526,403 $26,373,971 $38,126,842 $78,241,108 $88,749,532 $91,679,127 $118,833,523 $121,871,173 $128,366,710 $131,644,880 $138,099,783 $143,861,507 $146,816,320 $158,221,137 K-8 School Expenditures [5]
Site Acquisition $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $12,450,000 $0 $12,450,000 Soft Costs (Adjusted) $0 $3,600,000 $4,200,000 $0 $0 $764,444 $2,197,778 $2,197,778 $0 $0 $0 $0 $0 $0 $0 $0 $0 $12,960,000 Site Development (Adjusted) $0 $0 $0 $0 $0 $14,940,000 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $14,940,000 Construction $0 $0 $0 $0 $0 $9,600,000 $27,600,000 $27,600,000 $0 $0 $0 $0 $0 $0 $0 $0 $0 $64,800,000 FF&E $0 $0 $0 $0 $0 $0 $0 $3,000,000 $0 $0 $0 $0 $0 $0 $0 $0 $0 $3,000,000 State Funding GAN Repayment $0 $0 $0 $0 $0 $0 $0 $0 $0 $24,310,125 $0 $0 $0 $0 $0 $0 $0 $24,310,125 District COP Repayment $0 $0 $0 $0 $0 $0 $0 $0 $0 $891,000 $891,000 $891,000 $891,000 $2,502,301 $2,502,301 $2,502,301 $14,690,110 $25,761,012 Total Expenditures $0 $3,600,000 $4,200,000 $0 $0 $25,304,444 $29,797,778 $32,797,778 $0 $25,201,125 $891,000 $891,000 $891,000 $2,502,301 $2,502,301 $14,952,301 $14,690,110 $158,221,137 Cumulative Expenditures $0 $3,600,000 $7,800,000 $7,800,000 $7,800,000 $33,104,444 $62,902,222 $95,700,000 $95,700,000 $120,901,125 $121,792,125 $122,683,125 $123,574,125 $126,076,426 $128,578,726 $143,531,027 $158,221,137 Surplus/(Deficit) $1,947,490 ($913,806) $3,309,107 $6,383,613 $7,847,568 ($13,551,573) $10,316,488 ($22,289,354) $2,929,594 $1,953,272 $2,146,650 $5,604,537 $2,387,170 $3,952,602 $3,259,423 ($11,997,488) ($3,285,293) $0 Cumulative Surplus/(Deficit) $1,947,490 $1,033,684 $4,342,791 $10,726,403 $18,573,971 $5,022,398 $15,338,886 ($6,950,468) ($4,020,873) ($2,067,602) $79,048 $5,683,585 $8,070,755 $12,023,357 $15,282,781 $3,285,293 $0 Additional CFD Pay-Go To Be Considered by Committee $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $52,096 $918,232 $26,514,609 $27,484,937 Assumptions
Single Family Avg. Sq. Ft. 2,400
Multi-Family Avg. Sq. Ft. 2,200
Single Family TK-5 SGR 0.328 0.58 8165.82
Multi-Family TK-5 SGR 0.413 4617.912
Single Family 6-8 SGR 0.134 1886.586
Multi-Family 6-8 SGR 0.075 1661.322
Single Family 9-12 SGR 0.118
Multi-Family 9-12 SGR 0.150
Level II Developer Fee $6.76
Footnotes:
[1] Lewis will be building the joint use park which will reduce the cost of the school by roughly $6M. Lewis will also receive fee credits or reimbursement from the City for building the park. [2] The Park Recreation Facilities portion of the PFE fee that Liberty at Lincoln pays will be earmarked for a funding contribution to the joint use K-8 gymnasium. Fee amount is $564 per DUE. [3] In lieu of reducing CFD 2018-1 to account for the school district maintaining the joint use park, the City will instead make an annual payment to the school district. This payment has been borrowed against with an estimated revenue of $3.2M (per WPUSD) at school construction. [4] Assumes WPUSD takes fair share of proceeds at each bond issuance. In reality, WPUSD may elect to take funds at different times. This also assumes a single bond issuance per IA, ultimate timing and issuance may vary. [5] Provided by WPUSD.
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1
AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
AND JOINT ESCROW INSTRUCTIONS
by and between
Western Placer Unified School District (“District”)
and
Lincoln Land Holdings, LLC (“Lewis”)
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1
TABLE OF CONTENTS
Page
PURCHASE AND SALE ...................................................................... 5 Purchase and Sale of the School Site ....................................................................5 Purchase Price, Appraisal Process, and Special Note ........................................5
1.3 School Site Development .......................................................................................7
1.4 Due Diligence and Feasability ...............................................................................8 REPRESENTATIONS AND WARRANTIES .................................. 10 Lewis’s Representations and Warranties ..........................................................10 District’s Representations and Warranties .......................................................14 CONDITIONS PRECEDENT ............................................................ 15 Conditions Precedent to Closing of Escrow.......................................................15 ESCROW PROVISIONS ................................................................... 16 Escrow, Escrow Holder, and Opening of Escrow .............................................16 Escrow Instructions .............................................................................................16 Close of Escrow ....................................................................................................17 Preliminary and Supplemental Title Reports ...................................................17 Condition of Title .................................................................................................18 Escrow Closing Costs ...........................................................................................18 Obligations of District..........................................................................................19 Obligations of Lewis ............................................................................................19 Pro Forma Title Report & Estimated Closing Statement ................................20 Title Policy ............................................................................................................20 Signing of Other Documents; Compliance with Regulations ..........................20 Recording of Documents and Delivery of Funds ..............................................20 Escrow Cancellation Charges .............................................................................20 NOTICES ............................................................................................. 21 Notices ...................................................................................................................21 MISCELLANEOUS PROVISIONS .................................................. 22 Entire Agreement, Waivers, and Amendments ................................................22 Exhibits .................................................................................................................22 Effect of Recitals ..................................................................................................22 Section References ...............................................................................................23 Commissions or Brokerage Fees.........................................................................23 Dispute Resolution ...............................................................................................23 Attorney’s Fees and Costs ...................................................................................23 Third-Party Beneficiaries ....................................................................................23 Successors and Assigns ........................................................................................24 Assignment............................................................................................................24 Obligations Survive Close of Escrow .................................................................24 Severability ...........................................................................................................24 Governing Law .....................................................................................................24 Time is of the Essence ..........................................................................................24 Condemnation ......................................................................................................24
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1 Headings................................................................................................................25 Nondiscrimination................................................................................................25 Rights and Remedies are Cumulative ................................................................25 Cooperation ..........................................................................................................25 Business Days .......................................................................................................25 Force Majeure ......................................................................................................26 Facsimile and E-Mailed Signatures ....................................................................26
EXHIBITS
“A-1” - LEGAL DESCRIPTION OF LAND
“A-2” - PLAT MAP DEPICTING LAND
“B” - SPECIAL NOTE
“C” - GRANT DEED
“D” - PUBLIC AGENCY CERTIFICATE OF ACCEPTANCE
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1
AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
AND JOINT ESCROW INSTRUCTIONS
BETWEEN
WESTERN PLACER UNIFIED SCHOOL DISTRICT
AND
LINCOLN LAND HOLDINGS LLC
This Agreement for Purchase and Sale of Real Property and Joint Escrow Instructions (“Agreement”) is entered into as of ___, 20___ (“Effective Date”) between WESTERN PLACER UNIFIED SCHOOL DISTRICT, a California public school district (“ District” or “Buyer”) and LINCOLN LAND HOLDINGS , LLC, a California limited liability company ( “Lewis” or “Seller”). Lewis and District may also be referred to in this Agreement singularly as a “Party” and collectively as the “Parties.”
RECITALS
A. Lewis is developing real property in the City of Lincoln’s Village 7 Specific Plan and within District’s boundaries, which may ultimately consist of approximately 3,300 residential units (“Project”).
B. To address the need for additional school facilities for the students to be generated by the Project, District and Lewis entered into that certain School Facilities Agreement dated ___, 20___, and recorded ___, 20__, Document No. _______ in the Placer County records (as may be amended from time to time ) (“School Facilit ies Agreement”). The School Facilities Agreement establishes the general terms and conditions under which Lewis would reserve and sell to the District a school site along with certain improvements made thereon, within the Project.
C. Pursuant to the School Facilities Agreement, the District intends to construct a TK-8 school facility, including furnishings, fixtures, equipment and technology required to accommodate students generated by the Project, and joint -use facilities and the Park (defined below) (collectively, the “School Facilities”) on a 16.6 acre parcel on the corner of the future Ferrari Ranch Road and Liberty Parkway within the Project, as more particularly described in Exhibits A -1 and A -2 attached hereto ( “School Site ” or “Property”).
Lewis desires to sell to the District, and the District desires to purchase from Lewis, upon the terms and conditions set forth in this Agreement, and the School Facilities Agreement, the School Site , and all improvements, easements, licenses, and interest appurtenant thereto.
Capitalized terms not otherwise defined in this Agreement shall have the same meanings given them in the School Facilities Agreement.
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1
AGREEMENT
Based upon the foregoing Recitals, which are incorporated herein by this reference, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, pursuant to the terms of this Agreement, Lewis and District agree as follows:
PURCHASE AND SALE
Purchase and Sale of the School Site
(A) Purchase and Sale. Subject to the terms and conditions that follow, Lewis shall sell to the District, and the District shall purchase from Lewis the School Site for the Purchase Price set forth in Section 1.2 of this Agreement . The purchase of the School Site includes the land, and all easements, licenses, and interests appurtenant thereto.
1.2. Purchase Price, Appraisal Process, and Special Note
(A) Purchase Price. The total P urchase Price for the School Site shall be based upon an appraisal of the School Site obtained by the District within six (6) months of acquisition (“Appraised Value”) plus Lewis’ School Site Development Costs, as set forth in Section 7.6 of the School Facilities Agreement. The Appraised Value shall be the fair-market value of the School Site based on its highest and best use in the Construction Ready Condition, as set forth in Section 1.3( B) of this Agreement. As used herein “Highest and Best Use” means Median Density Residential, unless determined otherwise by a Qualified Appraiser. The Appraised Value shall not include the School Site Development Costs. At the time the Parties entered into the School Facilities Agreement, the Parties estimated the value of the improvements provided by Lewis to deliver the School Site in a Constructi on Ready Condition to be One Million, Eight Hundred Thousand Dollars ($1,800,000.00). At the time the Parties entered into the School Facilities Agreement, the Parties estimated the value of the School Site Development Costs provided by Lewis for the Park (as defined below) to be Two Million, Eight Hundred Thousand Dollars ($2,800,000.00)
(B) Updated Appraisal. As required pursuant to regulations of the State Allocation Board (“SAB”), the Appraisal shall have a valuation date of within six (6) months of the date the District submits its application for State Funding for the School Site.
In the event , that the District is delayed in submitting its application, or for any other reason the Appraisal does not have a valuation date as required pursuant to SAB regulations, the District, at its sole cost and expense, may update the Appraisal so that the valuation date is within the required six-month period.
(B) Qualifications of the Appraisers. The appraisal shall be performed on behalf of the District by a Qualified Appraiser (as defined in Section 1.2(C)) (“District’s
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1 Appraisal”) of the District’s choosing at District’s sole cost and expense, and reviewed and approved by the Parties.
If Lewis disagrees with the Appraised Value in the District’s Appraisal, Lewis has the right to have an appraisal performed on behalf of the District by a Qualified Appraiser, (“ Lewis’ Appraisal”) of Lewis’ choosing at Lewis’s sole cost and expense, and reviewed by both Parties. If the Appraised Values in the District’s Appraisal and Lewis’ Appraisal are within 10%, then the Appraisal Value would be the average between the two appraisals. If th e Appraised Values are different by more than 10%, then the Di strict’s Appraiser and Lewis’ Appraiser will select another Qualified Appraiser to complete a third appraisal (“ Third Appraisal ”) with the Appraised Value in the Third Appraisal averaged against the closest of the Appraisal Values identified in the District’s Appraisal or Lewis’s Appraisal. The cost of the Third Appraisal will be shared equally by District and Lewis.
Any Appraisal shall (i) be prepared by an appraiser who is licensed by the State, is a member of the Appraisal Institute, and has at least ten (10) years of experience appraising real property situated within the County, including valuation of school sites loca ted in new development projects; (ii) value the property based on its highest and best use; (iii) comply with all applicable laws and regulations, including, without limitation, Title 2 of the California Code of Regulations, Section 1859.74.1; (iv) comply with the Uniform Standards of Professional Apprai sal Practice as promulgated by the Appraisal Standards Board of the Appraisal Foundation; and (v) establish and support the appraiser’s opinion of the fair market value of each of the property, which shall be specified on both a per-acre-value and a total-value basis (“Qualified Appraiser”).
(D) Special Note. The Purchase Price may be satisfied by delivery of a Special Note in the form set forth in Exhibit B attached hereto. The Special Note shall be pledged and secured by the Special Note Revenues identified in Section 7.4 of the School Facilities Agreement, and paid in full within thirty (30) days of the latest of: (i) the date the City issued building permits for ninety-five percent (95%) of all approved units within the Current Developer Property; (ii) the date District receives State Funding together with other Special Note Revenues in a sufficient amount to repay the Special Note; or (iii) seven (7) years after the District receives final Division of State Architect (“DSA”) close out of the School Facilities . The Parties acknowledge that any payment of the Special Note will occur after the Close of Escrow from Special Note Revenues (as that term is defined in Section 7.4 of the School Facilities Agreement) . The Special Note is a limited obligation of the District and is subject to the requirements set forth in Section 7.4 of the School Facilities Agreement. In no event shall any of the terms in this Agreement create obligation that may be held against or fulfilled by the D istrict’s general fund.
District’s obligations under this Section 1.2( D) shall survive the Close of Escrow or any termination of this Agreement.
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1
(E) Initial Deposit. District shall place into escrow one -dollar ($1.00) as a good faith deposit (“Initial Deposit”) within ten (10) days after the Effective Date. The Initial Deposit shall be fully refundable if the District chooses to not purchase the School Site due to any termination rights set forth herein, provided the District is not in breach or default of this Agreement. In the event , that the District chooses to not purchase the School Site pursuant to the foregoing, the District shall notify Escrow Holder and Lewis, whereupon Escrow shall be canceled, and the Initial Deposit shall be returned in full to District.
1.3. School Site Development
(A) School Site Condition. Lewis shall deliver the School Site in the condition specified in Article VII of the School Facilities Agreement. Lewis shall assure that the School Site complies with the provisions of the “School Site Selection and Approval Guide” prepared by the California Department of Education (“CDE”).
Lewis shall deliver the School Site in a Construction Ready Condition.
(B) Construction Ready Condition. “Construction Ready Condition” means, unless otherwise agreed in writing by the Parties, the School Site being rough graded to master pad conditions as described in the plans for the development of the School Site, including:
1. one hundred percent (100%) useable to construct public school structures upon without any specific engineering and design costs due to topographic conditions (uniformly graded to no more than 2% plus or minus 0.2’);
2. utilities stubbed to the property line of the site (across any existing joint trenches if present), including domestic water, water service for fire loop, sewer, and any other utility service including but not limited to conduit and wiring, etc., all sized adequately for the School Facilities;
3. curbs, gutters, sidewalks, driveways, roadways, landscaping and irrigation, signals if required and approved by the City, signage, street lighting, crosswalks, in and on all adjacent rights-of-ways;
4. perimeter block walls (6’ high) along the property lines on the sides of the school site adjacent to land uses other than open space, agricultural, unless required by the California Department of Education, or parks if part of the overall project design and not otherwise provided for in the specific school design; and
5. work necessary to prepare the site for school building construction, including on-site drainage, and required retaining walls, unless these items are part of the bid drawings of a
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1 particular school; including SWPPP and temporary measures required to maintain the condition of the site after completion of this portion of work.
6. In addition, Construction Ready Condition requires the School Site to be in accordance with the standards for school site construction, as approved by the DSA or other applicable approving authority relating to off -site utility services (e.g., water, sewage, gas electricity, telephone, computer cable); off - site development (outside of property lines of the school to include pavement of adjacent streets, curbs and gutters, sidewalks, street lighting, planting areas and parkway landscape, street signs, traffic signals as required and approved by the City, street trees, off-site rough and final grading, off -site driveways and aprons); and service site development (site clearance, demolition, removal/relocation of utility services, rough grading, soil compaction, on- site drainage facilities, erosion control and embankment improvements).
7. In addition, Construction Ready Condition requires the School Site to be in accordance with the standards set by the CDE, Office of Public School Construction (“ OPSC”), and the Department of Toxic Substance Control (“DTSC”).
8. In addition, the School Site shall have a width to depth ratio of no more than 2:1, except as mutually agreed upon, and shall be free and clear of encumbrances that would affect the District’s ability to use the site for its intended purposes.
(C) District is responsible for finish grading, and civil engineering and geotechnical certification as to final finished grade and soil compaction for School Facilities, not including the Park (as defined in Section 1.3(D)).
(D) Park Condition. Lewis shall deliver that portion of the School Site, identified as the 8.5 acre regional-size park to be developed by Lewis for joint use by the District and the City of Lincoln (“Park”), in a condition agreed to by both parties in writing, but at least commensurate with other regional parks in the City of Lincoln and in conformance with the standards for school site construction, as approved by the DSA.
1.4. Due Diligence and Feasibility
(A) Feasibility Period. District shall have a period of one hundred eighty (180) days from and after the Effective Date (“Feasibility Period”) to review the condition of the School Site and conduct any and all appropriate geological, environmental, engineering, safety and other inspections it determines necessary or as required by
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1 state and local law so as to ensure that the School Site complies with all state and local requirements applicable to District’s proposed use of the School Site.
District’s obligation to purchase the School Site is conditioned upon District’s approval of the following:
(1) District’s approval of and satisfaction with the physical condition of the School Site and all tests, inspections, and studies to be conducted by District, or Lewis, including, without limitation, any environmental assessments.
(2) District’s determination that the School Site is suitable for District’s intended uses.
(B) Failure to Disapprove. District’s failure to disapprove the above conditions in writing to Lewis within the Feasibility Period shall be deemed District’s approval of such conditions.
(C) District License. Lewis hereby grants to the District a non- exclusive license to enter in and upon the School Site prior to the delivery of the School Site for purposes set forth in Section 1.3 ( F) of this Agreement (“District License”). The District License shall include, but is not limited to, allowing the District and District Agents to enter, cross over, on, along, through , and across the School Site (and other property owned or controlled by Lewis as necessary for access to the School Site) for all activities undertaken purs uant to this Article. The District License is granted subject to any covenants, restrictions, reservations, rights of way, and encumbrances of record. If possible, the District shall enter the School Site from a public right of way. If escrow of the School Site fails to close for any reason, the District shall restore the School Site to the condition existing on the site ab sent District entry on the School Site. The District License shall expire automatically upon any cancellation of escrow or upon closing of escrow of the School Site. The District shall comply with all applicable laws and regulations in connection with its activities on the School Site.
(D) Indemnification by District. The District shall indemnify, defend and hold harmless Lewis (including its directors, officers, managers, employees, and agents) from and against any liabilities, claims, demands, actions, judgments, expenses , and costs, resulting from activities on the School Site by the District or the District a gents pursuant to the District License, including, but not limited to, any loss of or damage to property or injury or death of any person whomsoever, and any mechanic liens, materialmen liens, or other lien. With respect to any incident occurring prior to closing of escrow of the School Site or any earlier termination of the District License, the indemnification obligation set forth in this Section shall survive, as applicable, terminat ion of this Agreement, cancellation of escrow, closing of escrow and/or termination of the District License.
(E) District Insurance . Prior to entry onto the School Site pursuant to the District License, the District shall obtain and shall thereafter maintain, until the termination of the District License, a policy of commercial general liability insurance providing
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1 coverage in the face amount of one million dollars ($1,000,000) for all activities conducted by District and the District Agents on the School Site prior to Close of Escrow (“District Liability Policy ”). The District Liability Policy shall name Lewis and Lewis Management Corp. as additional insureds . Prior to entering the School Site, the District shall provide Lewis a “Certificate of Insurance” to evidence that the District Liability Policy is in full force and effect. The Certificate of Insurance shall require that the insurer provide written notice to Lewis not less than thirty (30) calendar days prior to any cancellation, termination or expiration without renewal, except in the case of termination for non-payment of premium, in which case the insurer shall provide written notice to Lewis not less than ten (10) calendar days prior to termination. Provided it satisfies all requirements set forth herein, a policy of insurance obtained through a joint powers agency of which the District is a member shall satisfy the obligation of the Distric t to obtain and maintain the District Liability Policy.
(F) School Site Approvals . District shall complete all due diligence review s of the School Site and secure the approval of all applicable state agencies , including the CDE, DSA, OPSC, and DTSC, and as required by law (collectively, the “School Site Approvals”) during the Feasibility Period.
REPRESENTATIONS AND WARRANTIES
Lewis’s Representations and Warranties
Lewis hereby represents and warrants to District:
No Commitments or Agreements
Except as specifically disclosed to District in writing (including in the Preliminary Title Report [defined below]), or otherwise known to the best knowledge of District, Lewis has made no written commitments or agreements materially and adversely affecting the School Site, or any part thereof, or any interest therein, which will survive the Close of Escrow.
Liens
Except as specifically disclosed to District in writing or otherwise known to the best knowledge of District, to the best of Lewis ’s knowledge, there are no mechanic, materialmen or similar claims or liens presently claimed, or which will be claimed against the School Site for work performed or commenced for Lewis or on Lewis’s behalf.
Rights of Possession
Except as specifically disclosed to District in writing or otherwise known to the best knowledge of District, there are not as of the date of this Agreement, nor will there be as of the Close of Escrow, any written or oral leases or contractual right or
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1 option to lease, purchase, or otherwise enjoy possession, rights or interest of any nature in and to the School Site and no other persons shall have any right of possession to the School Site as of the Close of Escrow or at any time thereof.
Ownership and Encumbrances
Lewis has not except as specifically disclosed to District in writing (including in the Preliminary Title Report) , prior to Close of Escrow without the prior written consent of District, which consent may be given or denied in District’s reasonable discretion, enter into any lien, encumbrance, easement or license agreement, or any other agreement permitting others to use the School Site, or any portion thereof, or convey any part of the School Site which will survive the Close of Escrow ; provided, however, District shall not unreasonably withhold its consent to the granting by Lewis of one or more easements over the School Site for public utility, access, sewer and/or drainage purposes so long as the granting of any such easement does not unreasonably interfere with District’s use of the School Site for the School Facilities.
Full Power and Authority
Neither this Agreement nor anything provided to be done hereunder including the transfer of title to the School Site to District violates any contract, agreement or instrument to which Lewis is a party. Lewis has the full power and authority to enter into this Agreement and consummate the transaction contemplated hereby.
The execution, delivery and performance of this Agreement has been duly and validly authorized by Lewis, and no other action by Lewis is requisite to the valid and binding execution, delivery, and performance of this Agreement by Lewis.
Litigation
Except as specifically disclosed to District in writing, or otherwise known to District, to the best of Lewis ’s knowledge, there are no actions, suits, claims or legal or other proceedings pending (based upon proper service of process having been accomplished) or, to the best of Lewis’s knowledge, threatened against Lewis, which could materially adversely affect Lewis ’s ability to consummate this transaction and to convey the School Site to the District.
Reports
To the best of Lewis’s knowledge, Lewis has made available to the District all third- party professional reports within its possession regarding any material issue relating to the physical condition of the School Site or the ability of the School Site to be reasonably used for the construction of School Facilities.
Environmental Laws/Hazardous Materials
Except as disclosed in writing by Lewis, including in any third-party professional reports delivered by Lewis to District, and except as disclosed to District in its due
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1 diligence reviews of the School Site , and except for petroleum products used in automobiles and equipment, to the best of Lewis ’s knowledge: (i) there has been no production, storage or disposal on the School Site of any Hazardous Material (as defined below) by Lewis or, to the best of Lewis’s knowledge, by any third party ; (ii) Hazardous Materials have not been dumped, buried, leaked, or otherwise released upon, in or under School Site or allowed to pass on, under or through the School Site at any time during Lewis’s ownership of the School Site or disclosed in writing by a previous owner of the School Site to Lewis; (iii) Lewis has complied with all laws, regulations, and ordinances (“Environmental Laws”) relating to the use of all Hazardous Materials used on the School Site; (iv) there is no proceeding or inquiry by any federal, state or local governmental agency with respect to the use, production, storage, release or migration of Hazardous Materials on, through or across the School Site; and (v) there is no existing contamination of Hazardous Materials on, at, about, or within the School Site,. “ Hazardous Material” means any hazardous or toxic substance, material or waste that is: (i) regulated by any governmental authority, the State of California or the United States; (ii) defined as an “acutely hazardous waste,” “extremely hazardous waste,” “hazardous waste,” or “waste” under Sections 25110.02, 25115, 25117, or 25124 of the California Health and Safety Code, or listed pursuant to Sections 25141 and 25141.5 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control); (iii) defined as a “hazardous material,” “hazardous substance,” or “hazardous waste” under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory); (iv) defined as a “hazardous substance” under Section 25281 of the California Health and Safety Code Division 20 Chapter 6.7 (Underground Storage of Hazardous Substances); (v) petroleum; (vi) asbestos; (vii) listed under Chapter 10 Division 4.5 of Title 22 of the California Code of Regulations or defined as hazardous or extremely hazardous pursuant to Division 21.5 of Title 26 of the California Code of Regulations; (viii) designated as a “hazardous waste” pursuant to Section 6903 of the Federal Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901 et seq. ; (ix) defined as a “hazardous substance” pursuant to Section 9601 of the Comprehensive Environmental Response, Compensati on and Liability Act, 42 U.S.C. Section 9601 et seq. ; (x) any flammable substances or explosives; or (xi) any radioactive material.
Notices
To the best of Lewis’s knowledge, Lewis has made all disclosures and provided all notices to District, which are required by Section 25359.7 of the California Health and Safety Code.
Best Knowledge
For purposes of this Section 2.1, the phrase “best of Lewis’s knowledge” means the actual and present knowledge of Phil Rodriguez and Eric Anderson, without any independent investigation or duty to investigate, having been made, and not based on any implied, imputed or constructive knowledge of Lewis.
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1 To the best of Lewis’s knowledge, Lewis is not in default of any of its obligations or liabilities pertaining to the School Site, nor are there any existing facts, circumstances, conditions, or events that would constitute or result in any default on the giving of notice, the passage of time, or both.
To the best of Lewis’s knowledge, Lewis has not received written notice from any governmental agency that the School Site is in violation of any statute or regulation that would interfere with or prevent the District’s development or use of the School Facilities after the Closing.
Lewis has not:
(1) Made a general assignment for the benefit of creditors; (2) Filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition by its creditors;
(3) Suffered the appointment of a receiver to take possession of all or substantially all of its assets;
(4) Suffered the attachment or other judicial seizure of all, or substantially all, of its assets;
(5) Admitted in writing its inability to pay its debts as they come due; or (6) Made an offer of settlement, extension, or composition to its creditors generally.
Neither this Agreement, nor anything to be done hereunder, violates any contract, agreement, or instrument to which Lewis is a party, or which, to the best of Lewis’s knowledge affects the School Site. The signature, consent, or acknowledgment of no other person or entity is necessary to validate the signing of this Agreement by Lewis or permit its sale of the School Site to District.
If between the Effective Date and the Close of Escrow, Lewis or District becomes aware of facts or circumstances which would make any of Lewis’s representations or warranties hereunder materially incorrect, whether as of the Effective Date or any time thereafter to the Close of Escrow, such fact or circumstance shall not be construed as a breach by Lewis of such applicable representation or warranty but District shall have the right to either: (i) terminate this Agreement if such fact or circumstance would have a material and adverse impact on the School Site or District’s intended development thereof, such termination being treated as a failure of a condition precedent under Section
3.1, below, or (ii) waive such condition and
proceed to Close of Escrow in accordance with this Agreement in which case the representations and warranties of Lewis hereunder shall be deemed modified and remade to incorporate such fact or circumstance as an exception thereto, or (iii) in the manner provided in the School Facilities Agreement, require the Lewis to provide an alternate site that would be reasonably suitable for the School Facilities,
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1 if the fact or circumstance renders the School Site unsuitable for the S chool Facilities.
District’s Representations and Warranties
No Commitments or Agreements
Except as specifically disclosed to Lewis in writing or otherwise known to the best of Lewis’s knowledge, District has made no written commitments to or agreements with any governmental authority or agency materially and adversely affecting the School Site, or any part thereof, or any interest therein, which will survive the Close of Escrow.
Liens
Except as specifically disclosed to Lewis in writing or otherwise known to the best of Lewis’s knowledge, to the best knowledge of District, there are no mechanic, materialmen or similar claims or liens presently claimed against the School Site for work performed or commenced for District or on District’s behalf.
Full Power and Authority
Neither this Agreement nor anything provided to be done hereunder, including the transfer of title to the School Site to District, violates any contract, agreement or instrument to which District is a Party. District has the full power and authority to enter into this Agreement and consummate the transaction contemplated hereby.
The execution, delivery and performance of this Agreement has been duly and validly authorized by District upon ratification by District’s Board of Trustees, and no other action by District is requisite to the valid and binding execution, delivery, and performance of this Agreement by District.
Litigation
Except as specifically disclosed to Lewis in writing, or otherwise known to the best of Lewis’s knowledge, there are no actions or proceedings pending or threatened against District, which do or will materially adversely affect District’s ability to consummate this transaction and to acquire the School Site from the Lewis.
Change of Representation or Warranty
In the event District acquires knowledge that any such representation or warranty is no longer accurate, District shall immediately advise Lewis of same. Lewis shall then have the right to either: (i) terminate this Agreement if such fact or circumstance would have a material and adverse impact on the Lewis ’s rights or obligations pursuant to this Agreement, such termination being treated as a failure of a condition precedent under Section 3.1, below, or (ii) waive such condition and proceed to Close of Esc row in accordance with this Agreement in which case the representations and warranties of Lewis hereunder shall be deemed modified and
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1 remade to incorporate such fact or circumstance as an exception thereto, or (iii) if the fact or circumstance renders the School Site unsuitable for the school facility , require the Parties to select an alternate site in the manner provided in the School Facilities Agreement.
Best Knowledge
For purposes of this Section 2.2, the phrase “best of District’s knowledge” means the actual knowledge of the District Superintendent, acting in their representative capacity, on behalf of, and for, the District only, without any independent investigation having been made, and not based on any implied, imputed or constructive knowledge of District, including all of its officers and directors.
District has conducted appropriate environmental tests of the School Site, and District’s tests did not reveal a prohibited condition existing on the School Site.
District, as a public school district, is not required to comply with the Subdivision Map Act, or County Subdivision Ordinance or any related subdivision law in connection with the purchase of the School Site.
CONDITIONS PRECEDENT
Conditions Precedent to Closing of Escrow
The obligation of the District and the Lewis to complete this transaction pursuant to this Agreement is subject to the satisfaction, at or before the Close of Escrow, of the conditions contained herein. The District and Lewis agree that each will, in good faith, endeavor to remove all said contingencies and conditions that are within its control. The following are conditions precedent to the Close of Escrow:
Lewis must have satisfied the conditions set forth in Section 1.3 A, B , and D with regards to the completion of improvements to and for the School Site and Park.
Lewis must deposit with Escrow Holder a fully executed and notarized grant deed for the School Site (“Grant Deed”) in the form attached as Exhibit A.
District must deposit with Escrow Holder the Certificate of Acceptance in the form attached as Exhibit B.
The District must deposit with Escrow Holder either the full amount of the Purchase Price or a duly executed original Special Note in advance of the Scheduled Closing Date (as hereinafter defined);
Prior to the Scheduled Closing Date , the Parties will deposit with the Escrow Holder the title insurance and escrow closing costs for which they are responsible.
The Escrow Holder will place all sums deposited into an Escrow account;
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1 The Title Company will be prepared to issue the “Title Policy” (as hereinafter defined) in the name of the District for marketable title, free of restrictions, liens, and encumbrances except for those restrictions, liens, and encumbrances specifically allowed by Section 4.4 below, or otherwise approved in writing by the District;
The District shall have approved the “Preliminary Title Report” (as hereinafter defined) for the School Site and any exceptions stated therein or is considered to have approved those pursuant to Section 4.4 of this Agreement; District’s Board of Trustees shall have ratified this Agreement; Each Party must have deposited such other instruments or documents as the other Party or Escrow Holder may reasonably request or may be necessary to effectuate the sale, assignment, transfer, conveyance and delivery of the School Site to District.
Escrow must not have been canceled or this Agreement terminated; The District’s and the Lewis ’s covenants, representations and warranties shown above are true as of the Close of Escrow; and
Lewis and District must not be in breach or default of any of their respective material obligations under this Agreement.
District must have deposited an original IRS Form 8283 completed by Lewis and duly executed by District with Escrow Holder in prior to the Scheduled Closing Date.
The completion of the formation of the CFD under the School Facilities Agreement.
ESCROW PROVISIONS
Escrow, Escrow Holder, and Opening of Escrow
District’s delivery to Escrow Holder of a fully executed original of this Agreement constitutes the opening of Escrow. The obligation to sell and purchase the School Site shall not arise, however, until the Escrow Holder receives a fully executed copy of this Agreement.
Escrow Instructions
The Parties shall provide a copy of this Agreement, supplemental escrow instructions, signed by both Parties, and any other document necessary to consummate the purchase of the School Site and to the Close of Escrow as contemplated by this Agreement to the Escrow Holder. Without limiting the effect of the foregoing, Escrow Holder’s General
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1 Conditions will be binding on Lewis and District to the extent not inconsistent herewith, but the terms of this Agreement shall control in the event of a conflict.
Close of Escrow
Escrow for the School Site shall be deemed closed upon the recordation of the Grant Deed in accordance with the terms and conditions hereof (“Close of Escrow” or “Closing Date” or “Closing”). Escrow shall close on a date selected by District upon a minimum of sixty (60) days prior written notice to Lewis and the Escrow Holder, but in no event later than ninety (90) days after the later of (i) conclusion of the Feasibility Period, or (ii) the satisfaction of the conditions set forth in Sections 3.1 A and N, unless otherwise extended by mutual written agre ement between the District and Lewis (the “Scheduled Closing Date”). Any extension of the Close of Escrow shall not be effective unless and until a fully executed (by District and Lewis) copy of any such written extension is provided to the Escrow Holder. In any event, the Close of Escrow shall only occur after all conditions set forth in this Agreement have been satisfied or waived.
Preliminary and Supplemental Title Reports
Within ten (10) calendar days following the Effective Date, Escrow Holder shall provide both Parties with a preliminary title report with respect to the School Site (“Preliminary Title Report ”). The Preliminary Title Report shall be in “e -Prelim” format, with hyperlinks to all exceptions that are referred to in the Preliminary Title Report (collectively, the “Title Documents”). Except as provided below, District may review and approve the Preliminary Title Report and the Title Documents for a period of thirty (30) calendar days following District’s receipt of the Title Documents or hyperlinks thereto (“ Title Review Period”), with District’s approval not to be unreasonably withheld. If District fails to disapprove any item in the Preliminary Title Report by a writing delivered to Lewis and Escrow Holder by the expiration of the Title Review Period, then District will be conclusively considered to have approved the item. However, District is not required to give notice of disapproval of debts, liens to secure debts, delinquent taxes, assessments due for the period prior to the Closing Date (real property taxes and assessments for the period on or after the Closing Date are Permitted Exceptions (as hereinafter defined)) , or other financing or monetary encumbrances on the School Site, and those items will not be considered as “Permitted Exceptions” (as hereinafter defined). If District reasonably disapproves any item other than as provided in the preceding sentence, Lewis may elect by written notice to the District within ten (10) days thereafter (the “ Seller Title Notice”) to remove such objectionable item(s) or to not remove such items and Seller’s failure to deliver the Seller Title Notice shall be deemed Seller’s election to not remove any items.
Buyer shall then, prior to expiration of the Feasibility Period, either terminate this Agreement or be deemed to have waived its objections to such title matters which shall be “Permitted Exceptions”. In the event Buyer terminates this Agreement, the Parties shall select another School Site pursuant to the terms of the School Facilities Agreement. District may not object to or require Lewis to remove or prepay any special taxes or assessments which special taxes or assessments are due on or after the Closing Date.
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1 Condition of Title
Lewis must convey the School Site to District in fee simple title subject only to the Permitted Exceptions. At the expiration of the Feasibility Period, all matters contained in the Title Documents that District has approved, or is considered to have approved, are all “Permitted Exceptions.” The term “Permitted Exceptions” shall also include the following:
If the School Site is within the boundaries of any existing community facilities district (“Existing CFD”), assessment district, or other financing district, then the lien of the special taxes or assessments shall be a Permitted Exception so long as the School Site, while owned by a governmental agency, is exempt from , or otherwise is not required to pay, the special tax or assessment of such Existing CFD, assessment district, or other financing district;
The CFD to be formed in accordance with the School Facilities Agreement; The standard printed exceptions and exclusions contained in the form of the Title Policy commonly used by Title Company;
Title exceptions resulting from documents being recorded or delivered through Escrow pursuant to this Agreement; and
Any exceptions to title caused by or approved in writing by the District, prior to the Close of Escrow.
Escrow Closing Costs
The Parties shall pay the costs associated with this transaction as follows, which shall be deposited with the Escrow Holder (“Closing Costs”):
Lewis will pay the cost of a standard form ALTA (American Land Title Association) title insurance policy issued by the Escrow Holder as the “Title Insurer,” and covering the School Site for the Purchase Price (“Title Policy”). (B) District will pay any additional costs of obtaining any extended coverage under an ALTA policy, including any required survey and any endorsements to the policy requested by District.
(C) Lewis shall pay all past due property taxes due and satisfy or remove any voluntary monetary liens (excluding taxes, bonds and assessments) and/or abstracts of judgment of record.
(D) Lewis and District shall each be responsible for fifty percent (50%) of all other escrow fees and costs.
(E) District is exempt from certain charges, such as recording fees and documentary transfer taxes, in accordance with Section 27383 of the Government Code. To the extent there are any recording fees, Lewis shall be responsible for those costs.
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1 Notwithstanding Section 4.7(1) of the School Facilities Agreement, each party shall be responsible for their legal accounting and other professional fees incurred in connection with the negotiation and preparation of this Agreement and the transaction contemplated herein.
Obligations of District
If all of the conditions precedent have been met or waived, then by Scheduled Closing Date, District must deposit with Escrow Holder the following documents:
District’s share of Closing Costs;
The Special Note;
A Certificate of Acceptance meeting the requirements of California Government Code Section 27281; and
A Preliminary Change of Ownership Statement, if required.
Obligations of Lewis
In addition to fulfilling any other obligations of Lewis contained in this Agreement, by the Scheduled Closing Date, Lewis must deposit into Escrow:
Lewis’s share of Closing Costs;
The Grant Deed in recordable form and duly signed and acknowledged by Lewis; All sums due hereunder , including but not limited to, any sums necessary to pay taxes, special taxes, fees, charges, and assessments due prior to the Closing Date , and other sums necessary to deliver free and clear title subject only to the Permitted Exceptions;
Documents reasonably required of Lewis by Escrow Holder to carry out Close of Escrow; provided, however, that with respect to the removal of the rights of parties in possession and/or mechanics lien exceptions in any title insurance policy, Lewis shall only be required to provide (i) an affidavit reasonably acceptable to Lewis that does not require any manager, member, or indirect owner of Lewis or of Lewis’s manager to (a) incur any obligations, execute any document other than in a representative capacity, or (b) disclose any financial information, and (ii) an unsecured indemnity from Lewis only against any such rights of possession or non- District mechanics liens. By the Close of Escrow, Lewis must sign and deposit with Escrow Holder an original California Form 593-C and Certification of Non-Foreign Status (FIRPTA Certificate); and
Such proof of Lewis’s authority and authorization to enter into this transaction as the Title Company may reasonably require in order to issue the Title Policy.
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1 Pro Forma Title Report & Estimated Closing Statement
The Escrow Holder must request from the Title Company a “Pro Forma Title Policy” at least fifteen (15) calendar days before the Close of Escrow and must deliver it to District for District’s approval before the Close of Escrow. The District will be considered to have approved the “Pro Forma Title Policy” if it contains only the Permitted Exceptions. The Escrow Holder must deliver to the District and Lewis an estimate of Closing Costs at least fifteen (15) calendar days before the Close of Escrow. The Parties shall deposit their share of the Closing Costs within five (5) calendar days before the Close of Escrow.
Title Policy
Escrow Holder must deliver to District, through Escrow, an ALTA owner’s standard policy of title insurance insuring District as fee owner of the School Site, subject only to the usual printed title company exceptions and the Permitted Exceptions, in an amount equal to the Purchase Price, issued by Title Company and dated as of the Close of Escrow.
Signing of Other Documents; Compliance with Regulations The Parties will do all things and sign all documents that are reasonably necessary for Close of Escrow to occur. Furthermore, the Parties will comply at their own expense with all applicable laws and governmental regulations required for Close of Escrow t o occur, including, but not limited to, any required filings with governmental authorities.
Recording of Documents and Delivery of Funds
On receipt of the funds and instruments described in this Article 4, and on the satisfaction or waiver of the conditions precedent to Close of Escrow, Escrow Holder, on the Scheduled Closing Date, must:
Deliver the original of the Special Note to the Lewis, with a copy to the District; Cause the Grant Deed and other documents as specified in this Agreement to be recorded in the Office of the County Recorder of the County of Placer, California; Deliver conformed copies of the Grant Deed and all other appropriate documents to District and Lewis on Close of Escrow; and.
If applicable, Deliver an original of the FIRPTA Certificate to District and Lewis on Close of Escrow.
Escrow Cancellation Charges
If Escrow fails to close because of the default of either Party, the defaulting Party shall be liable for all Escrow cancellation charges. If Escrow fails to close for any other reason, then Lewis will pay all Escrow cancellation charges.
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1
NOTICES
Notices
All notices under this Agreement must be in writing. All notices must be sent with postage fully prepaid and be addressed to the respective Parties as set forth below or to other addresses and persons as the Parties may designate by written notice to the other Parties.
The Notices will be effective:
When personally delivered by the other Party or messenger or courier of the other Party;
Three (3) business days after deposit in the United States mail, registered or certified;
Next scheduled delivery day after deposit before the daily deadline time with a reputable overnight courier or service; or
On receipt of a telecopy , fax transmission, or e -mail, if a hard copy of the transmission is thereafter delivered in one of the methods described in (A) through (C) above. However, facsimiles or e -mails sent af ter 5:00 p.m. PST, or PDT as applicable, are considered to have been sent the next business day.
TO THE LEWIS:
Lincoln Land Holdings, LLC
Attention: Doug Mull
c/o Lewis Management Corp.
9216 Kiefer Blvd.
Sacramento, CA 95826
Telephone/Fax: (916) 403-1702
Email: [email protected]
with copy to:
Attention: W. Bradford Francke, Esq.
Lewis Management Corp.
1156 North Mountain Avenue
Upland, CA 91786
Telephone:/Fax (909) 946-7538
Email: [email protected]
TO THE DISTRICT:
Western Placer Unified School District
600 Sixth St., Ste. 400
Lincoln, California 95648
Attention: Superintendent
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1 with copy to:
Lozano Smith
One Capitol Mall, Suite 640
Sacramento, California, 95814
Tel: (916) 329-7433
Fax: (916) 329-9050
Attention: Megan Macy and Arielle Percival
TO THE ESCROW HOLDER:
_________
_________
MISCELLANEOUS PROVISIONS
Entire Agreement, Waivers, and Amendments
This Agreement supersedes all negotiations and previous agreements between the Parties related to the purchase and sale of the School Site, except for those terms and conditions of the School Facilities Agreement. This Agreement and the School Facilities Agreement shall be read together. In the event of a conflict between the terms of this Agreement and the School Facilities Agreement, the terms of this Agreement shall control. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the Party to be charged. Any amendment or modification to this Agreement must be in writing and executed by both Parties.
Exhibits
Exhibits “A-1,” “A-2,” “B,” “C”, and “D” attached to this Agreement are made a part of this Agreement by this reference. The Exhibits are as follows:
“A-1” - LEGAL DESCRIPTION OF LAND
“A-2” - PLAT MAP DEPICTING LAND
“B” - SPECIAL NOTE
“C” - GRANT DEED
“D” - PUBLIC AGENCY CERTIFICATE OF ACCEPTANCE
Effect of Recitals
The Recitals shown above are considered true and are binding on Lewis and District.
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1 Section References
Any reference to any Section of this Agreement cited without a decimal includes all Sections following the cited Section. For example, a reference to Article 5 includes 5.1,
5.1(a), et seq.
Commissions or Brokerage Fees
Lewis and District will not pay any commissions or fees to third parties because of this Agreement. The Parties will indemnify each other against all liabilities, costs, damages, and expenses, including without limitation, attorneys’ fees, resulting from any claims, or the payment of any fees or commissions, based on any agreements by the indemnifying Party to pay any broker’s commissions or finder’s fees, or those of any third party.
Dispute Resolution
If a dispute arises relating to the interpretation of, enforcement of or compliance with the terms of this Agreement, Lewis and the District shall first attempt to resolve such dispute through informal discussions or negotiations. Any Party may convene such discussions by written notice, and shall reasonably accommodate the other Party with respect to scheduling. If the dispute is not resolved in this manner within thirty (30) calendar days following the written notice, it may be referred to mediation upon the request of either Party for a period not to exceed an additional thirty (30) calendar days. This dispute resolution process shall be undertaken in good faith and exhausted prior to judicial review.
However, compliance with this process does not waive any Party’s obligation to comply with, or right to assert as a defense, any applic able statute of limitations. The Parties may agree in writing to toll any applicable statute of limitations for such period as may reasonably be necessary to complete the disp ute resolution process. The cost of such proceeding shall initially be borne equally by the Parties.
Attorney’s Fees and Costs
In the event of any legal proceeding arising out of or relating to this Agreement, the prevailing Party, as declared by a court or adjudicatory body with competent jurisdiction over the matter, shall be entitled to recover its reasonable attorneys’ fees and expenses (including expert witness fees) arising from the proceeding. Attorneys’ fees under this Section shall include attorneys’ fees on any appeal and, in addition, a Party entitled to attorneys’ fees shall be entitled to all other reasonable costs and expenses incurred in connection with such action. In addition to the foregoing award of attorneys’ fees to the prevailing Party, the prevailing Party in any lawsuit shall be entitled to its attorneys’ fees incurred in any post -judgment proceedings to coll ect or enforce the judgment. This provision is separate and several and shall survive the merger of this Agreement into any judgment on this Agreement.
Third-Party Beneficiaries
This Agreement confers no rights on any party except the signatories to this Agreement.
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1 Successors and Assigns
Subject to compliance with the assignment provisions of Section 6.10 below, the provisions of this Agreement shall inure to the benefit of and likewise be binding upon each of the Party’s successors and/or assigns, if any.
Assignment
Neither Party shall have the right to transfer or assign any of its rights or obligations under this Agreement without the prior written consent of the other Party. Further, Lewis may only assign this Agreement to another entity and be relieved of all liability or responsibility under this Agreement, provided that such assignee fully assumes all of Lewis’s obligations hereunder in a writing, approved and duly executed by the District and the assignee, and only where the assignee demonstrates to the reasonable satisfaction of the District its capability, both financial and practical, to properly and fully complete and perform all obligations hereunder; otherwise Lewis will retain all obligations.
Obligations Survive Close of Escrow
All obligations to be performed at a time after the Close of Escrow, whether specifically referred to as surviving the Close of Escrow or not, and all covenants, representations , warranties, and indemnity obligations of the Parties, will survive the Close of Escrow.
Severability
If any provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining portions hereof shall not in any way be affected or impaired thereby, provided that no Party is deprived of material benefit under this Agreement due to the invalidity, illegality or unenforceability of any provision.
Governing Law
This Agreement must be construed according to its fair meaning and as if prepared by both District and Lewis. This Agreement must be construed in accordance with the laws of the State of California in effect on the Effective Date. Any action or proceeding seeking any relief under or with respect to this Agreement shall be brought solely in the Superior Court of the State of California for the County of Placer.
Time is of the Essence
Time is of the essence in this Agreement.
Casualty/Condemnation
If before Close of Escrow, the School Site or any portion thereof is materially destroyed or damaged which will prevent its use and development as contemplated by the District, then Lewis shall apply all proceeds of any insurance policy applicable to the loss to the restoration of the School Site. If, before Close of Escrow, the School Site a material portion
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1 of the School Site, which will prevent the use and development of the remainder of the School Site as contemplated by the District, becomes subject to a taking by virtue of eminent domain, the District shall have a right to contest the taking of the School Site as the highest and best use of the property, or shall have the right to modify this Agreement with Lewis to locate the School Site at another mutually agreeable location on the terms set forth in the School Facilities Agreement. Consistent with the School Facilities Agreement, the District and Lewis shall cooperate to locate a suitable alternative site for the School and revise the affected terms of the Agreement accordingly.
Headings
Headings at the beginning of each Article and Section are solely for the convenience of the Parties and must not to be construed as enlarging or limiting the language following the headings.
Nondiscrimination
District and Lewis must not discriminate against any person because of race, color, disability, religion, sex, gender, gender identity, sexual orientation, age, marital status, national origin, or ancestry in the performance of their respective obligations under this Agreement.
Rights and Remedies are Cumulative
Unless stated otherwise in this Agreement, the rights and remedies of the Parties are cumulative. A Party’s exercise of any of its rights or remedies will not preclude its exercise, at the same or at different times, of any other rights or remedies for the same, or any other default.
Cooperation
Lewis must provide District, upon request, copies of all planning, engineering, architectural and other project documents, and all modifications to those documents, relating to the School Site to the extent that they are in Lewis’s possession or control. Further, each of the Parties shall execute and deliver any and all additional papers, documents, and other assurances, and shall do any and all acts and things reasonably necessary in connection with the performance of their obligations hereunder and to car ry out the intent of this Agreement.
Business Days
In this Agreement; “business days” means days other than Saturdays, Sundays, and federal and state legal holidays. If the time for performance of an obligation under this Agreement falls on other than a business day, the time for performance shall be exten ded to the next business day.
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1 Force Majeure
No Party shall be deemed to be in default where failure or delay in the performance of any of its obligations under this Agreement is caused by floods, earthquakes, other acts of God, fires, wars, terrorism, riots or similar hostilities, strikes and other labor difficulties beyond a Party’s control, shortage of materials (exclusive of prefab/modular building products), prohibitory court actions (such as restraining orders or injunctions), epidemic or pandemic or other causes beyond a Party’s control, financial inability not included. If any such events shall occur, the time for performance by any Party of its obligations hereunder shall be extended for the period of time that such events prevented such performance.
Facsimile and E-Mailed Signatures
Signatures delivered by facsimile and e- mail shall be as binding as originals upon the Parties so signing and delivering. This Agreement may be executed in counterparts, each of which shall constitute an original of the Agreement. * * * * * * * * * * * * * * * * * * * *
Signatures follow
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1 DISTRICT:
WESTERN PLACER UNIFIED SCHOOL
DISTRICT
By
President of the Board of Trustees of the
Western Placer Unified School District
ATTEST:
By _______________________________
Clerk of the Board of Trustees of the
Western Placer Unified School District
LEWIS:
LINCOLN LAND HOLDINGS, LLC,
a California limited liability company
By: Lewis Management Corp., a Delaware
corporation
Its Manager
By: ______________________________
John M. Goodman
Its : Sr. Exec. VP/CEO
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1
ACKNOWLEDGMENT AND ACCEPTANCE
We acknowledge receipt of an original of the foregoing Escrow Instructions and the enclosures listed, and we agree to act as Escrow Holder under the terms and conditions of the instructions.
_______TITLE COMPANY
By_______________________________ Dated ________________, 202__ Its: Authorized Officer
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1 EXHIBIT “A-1” TO PSA
LEGAL DESCRIPTION OF SCHOOL SITE
Real property in the County of Placer, State of California, described as follows:
OUTLOT _______________________________
Contains an area of _______acres.
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1 EXHIBIT “A-2” TO PSA
PLAT MAP
(Attached)
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1 EXHIBIT “B” TO PSA
FORM OF SPECIAL NOTE
_____________, 20___ $_____________
SPECIAL LIMITED-OBLIGATION NOTE
_____________, 20___ $_____________
This Special Limited -Obligation Note (this “ Special Note”) is made and issued, effective the __ day of __________________, 20__, by the Western Placer Unified School District, a unified school district organized and existing pursuant to California law (the “District”), to the order of Lincoln Land Holdings, LLC, a California limited liability company (“Lewis”).
RECITALS
A. The District and Lewis entered into that certain School Facilities Agreement, dated _________________ (the “ School Facilities Agreement ”) and that certain Agreement for Purchase and Sale and Joint Escrow Instructions, dated___________ (“PSA”) (the PSA and School Facilities Agreement shall be collectively referred to hereafter as the “Mitigation Agreements”). The Mitigation Agreements (i) provide for funding of District school facilities required as a result of the development of property owned or to be owne d by Lewis and referred to herein as “Lewis Property” and (ii) implement the Parties’ intent with respect to conveyance by Lewis to the District the School Site, as defined below.
B. The District has determined to purchase an elementary school site (the “School Site”) for the construction of a permanent transitional kindergarten through eighth grade (TK-8) school and joint-use park and recreational facilities (the “School Facilities”) C. The Mitigation Agreements require, subject to the terms therein, that the District pay to Lewis the Purchase Price of the School Site in the amount of __________________ (“Purchase Price”).
D. At the close of escrow for the School Site, the District paid a portion of the Purchase Price in cash in the amount of 2.5% of the Appraised Value leaving the balance of the Purchase Price to be satisfied pursuant to the terms of this Special Note.
E. As set forth in the Mitigation Agreements , for purposes of closing escrow on the conveyance of the School Site to the District, the District is issuing this Special Note to Lewis in the principal amount of $________________ (the “Note Principal”).
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1 F. This Special Note shall be payable out of any Special Note Revenues, based upon the timing and terms set forth in Section 7.4 of the School Facilities Agreement and the Mitigation Agreements generally.
G. The District intends that, upon issuance and delivery of this Special Note, it shall become a binding and enforceable obligation of the District. This Special Note creates a special, and not a general, obligation of the District.
H. All capitalized terms used herein and not defined shall have the meaning ascribed thereto in the Mitigation Agreement s, except in the case of any conflicts the School Facilities Agreement shall control.
NOW THEREFORE, based on the foregoing, the District determines, states and agrees as follows:
Section 1. Promise to Pay. For value received, the District, whose address is 600 Sixth Street, Suite 400, Lincoln, California 95648 promises to pay the Note Principal to the order of Lewis, whose address is 9216 Kiefer Blvd. Sacramento, CA 95826 solely from the sources provided herein.
Section 2. Payment. This Special Note may be payable from any combination of Special Note Revenue available upon the terms set forth in the School Facilities Agreement.
The Note Principal shall be paid in full within thirty (30) days of the latest of: (i) the date the City issued building permits for ninety-five percent (95%) of all approved Residential Units within the Current Developer Property; (ii) the date District receives State Funding together with other Special Note Revenues in a sufficient amount to repay the Special Note; or (iii) seven (7) years after the District receives final Division of State Architect (“ DSA”) close out of the School Facilities
Section 3. Assignment. Subject to all provisions of the Mitigation Agreements, Lewis, in its sole discretion, may assign any or all of its rights or obligations pursuant to this Special Note. Any such assignment shall be effective thirty (30) calendar days after written notice to the District. This Special Note may be assigned by or on behalf of the District if the territory of the District that contains the School Facilities is subject to a completed school district reorganization pursuant to Education Code Section 35500 et seq. and/or Education Code Section 35700 et seq.
Section 4. Not Debt of the District. Pursuant to the Mitigation Agreement s, the District is obligated to pay the amount specified herein to the Lewis, on the terms and conditions set forth herein, only as a special obligation of the District if and when it receives Special Note Revenue and only from such sources and not from any general or other funds of the District. The District is not required, and hereby denies any claim that it has committed, or has agreed to commit, pursuant to the Mitigation Agreeme nts or otherwise, to expend any District general or other funds for the purpose of paying the Note Balance. In addition, the District shall
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1 not be required to appropriate any general or other funds on any annual or other basis for payment of the Note Balance. This Special Note creates a special, and not a general, obligation of the District. The full extent of the District’s obligation pursuant to this Special Note shall be to pay to the Lewis up to an amount equal to the Note Balance, without interest or other cost therefor, from the sources identified in the School Facilities Agreement. Therefore, notwithstanding that this document is entitled “Special Note,” the first-priority right granted herein does not establish a debt of the District for constitutional, statutory or other purposes.
Section 5. Attorney’s Fees and Costs. In the event of any legal proceeding arising out of or relating to this Special Note, the prevailing party, as declared by a court or adjudicatory body with competent jurisdiction over the matter, shall be entitled to recover its reasonable attorney’s fees and expenses (including expert witness fees) arising from the proceeding. Attorney’s fees under this Section shall include attorney’s fees on any appeal and, in addition, a party entitled to attorney’s fees shall be entitled to all other reasonable costs and expenses incurred in connection with such action. In addition to the foregoing award of attorney’s fees to the prevailing party, the prevailing party in any lawsuit shall be entitled to its attorney’s fees incurred in any post-judgment proceedings to collect or enforce the judgment. This provision is separate and several and shall survive the merger of this Special Note into any judgment on this Special Note.
IN WITNESS WHEREOF, this Special Note is hereby executed and issued by the duly authorized representative of the Western Placer Unified School District pursuant to authority granted in Resolution No. ________________ of the Board of Trustees of the Western Placer Unified School District.
WESTERN PLACER
UNIFIED SCHOOL DISTRICT
By: _____________________________
Superintendent
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1
ATTACHMENT 1
Western Placer Unified School District
School Site Acquisition
Payment Schedule
Estimated
Value
Principal Amount $
Closing Date
Payment Frequency Annual
First Payment
Final Payment
Prepayment Option none
Avg. interest Rate 0%
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1 EXHIBIT “C” TO PSA
FORM OF GRANT DEED
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Western Placer Unified School District
Attention: Superintendent
600 Sixth Street. Suite 400,
Lincoln. California. 95648
MAIL TAX STATEMENTS TO:
Same as above
Recording of this document is fee -exempt under Government Code Section 6103. No Documentary Transfer Tax is due on this document pursuant to Revenue and Taxation Code Section 11922.
This document is exempt from the Building Homes & Jobs Act fee because it is being recorded by a political subdivision of the state (Gov. Code 27388. l(a)(2)(D)).
GRANT DEED
Assessor’s Parcel Number:
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, the undersigned, LINCOLN LAND HOLDINGS , LLC, a California limited liability company (“Grantor”), hereby grants to WESTERN PLACER UNIFIED SCHOOL DISTRICT, a school district duly organized and existing under the laws of the State of California (“Grantee”), that certain real property in an unincorporated part of the County of Placer , State of California described in Exhibit A to Grant Deed attached hereto and incorporated herein, together wit h all buildings and improvements located thereon, subject to any covenants, conditions, restrictions, easements and other matters of record, including any recorded concurrently herewith. [Remainder of page intentionally blank]
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1 In witness whereof, Grantor has caused this Grant Deed to be executed as of the _____ day of _________________, 202___.
GRANTOR:
LINCOLN LAND HOLDINGS, LLC,
a California limited liability company
By: Lewis Management Corp., a Delaware corporation
Its Manager
By: ______________________________
John M. Goodman
Its : Sr. Exec. VP/CEO
MAIL TAX STATEMENTS AS SET FORTH ABOVE
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1
EXHIBIT A
TO
GRANT DEED
Real property in the County of Placer, State of California, described as follows:
OUTLOT _______________________________
Contains an area of _____acres.
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1
NOTARY ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
)
COUNTY OF _____________ )
On ___________________, ___, before me, _____________________, Notary Public, personally appeared ___________________________, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity, and that by his/her/their signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
(Seal)
Exhibit D - Purchase and Sale Agreement - Village 7 - final 4897-7892-2300 1 EXHIBIT “D” TO PSA
FORM OF CERTIFICATE OF ACCEPTANCE OF DEDICATION
This is to certify that the interest in real property conveyed by the Grant Deed dated ___________, 20__, from Lincoln School District, LLC, a California limited liability company, to the Western Placer Unified School District, a school district duly organized and existing under the laws of the State of California, is hereby accepted by the undersigned officer on behalf of the Western Placer Unified School District pursuant to authority conferred by the California Constitution and California Education Code and the Western Placer Unified School District consents to the recordation thereof by its duly authorized officer.
Dated: ____________________________
“DISTRICT”
WESTERN PLACER UNIFIED SCHOOL DISTRICT,
a school district duly organized and existing
under the laws of the State of California
By: ________________________________________
Name:
Its: Superintendent of Schools