HomeMy WebLinkAboutC-3172 - Joint Powers Authority Agreement Creating the Bonita Canyon Public Faclilities Financing AuthorityJOINT EXERCISE OF POWERS AGREEMENT
CREATING THE
BONITA CANYON
PUBLIC FACILITIES FINANCING AUTHORITY
Orange County, California
THIS JOINT EXERCISE OF POWERS AGREEMENT ("Agreement") is entered into as
of , 1997, under the authority of the Joint Exercise of Powers Law of the State of
California, between IRVINE UNIFIED SCHOOL DISTRICT (which is referred to herein as
"IUSD"), NEWPORT-MESA UNIFIED SCHOOL DISTRICT (which is referred to herein as
"NMUSD") (hereinafter collectively ("School Districts") and the City of Newport Beach (which is
referred to herein as "City" and collectively School Districts and City shall be referred to as
"Parties").
WITNESSETH
WHEREAS, pursuant to Section 6502 of the Government Code, IUSD, NMUSD and City
desire to enter into a joint exercise of powers agreement pursuant to Chapter 5 (commencing with
Section 6500) of Division 7 of Title 1 of the Government Code (the "Law") for the purpose of
establishing a community facilities district, to be known as "Community Facilities District No. 98-
1 of the Bonita Canyon Public Facilities Financing Authority ("CFD No. 98-1"), under the Mello -
Roos Community Facilities Act of 1982 (Chapter 2.5 of Part 1 of Division 2 of Title 5 of the
California Government Code, as amended) ("Act") to provide for the acquisition and financing of
public school and public park facilities pursuant to those certain agreements known as
Implementation Agreement Concerning School Facilities For A Portion Of Planning Area 26
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(Bonita Canyon), Annexation And Development Agreement Approved By The City Council Of
The City Of Newport Beach On November 10, 1997 By Ordinance No. 97-35 And Bonita Canyon
Boundary Adjustment And School Impact Mitigation Agreement Effective As Of October 28,
1997, and to exercise any power common to the contracting parties or otherwise provided under
the Law; and
WHEREAS, the legislative bodies of the Parties have determined that entering into this
Agreement would be beneficial to the present and future residents of the Parties; and
WHEREAS, the Parties propose that the Authority be established to conduct proceedings
under the Act to form CFD No. 98-1 or annex additional property to CFD No. 98-1 (the "Mello -
Roos Proceedings") to finance certain public facilities to the extent determined by each of the
Parties; and
WHEREAS, each Party shall specify the public facilities, if any, to be financed for such
Party and the distribution of proceeds of the financing to be made available to the Parties; and
WHEREAS, the Parties wish to provide that the Mello -Roos Proceedings are solely for the
purpose of raising funds for the Parties to provide public facilities, and that each Party shall be
solely responsible for all decisions as to the planning, acquiring, constructing, reconstructing,
rehabilitating, furnishing and equipping of the public facilities financed for such Party,
NOW, THEREFORE, the parties agree as follows:
SECTION 1. Recitals. The above recitals are agreed to.
SECTION 2. Best Interests. This Agreement is determined to be in the best interests of
the Parties and the future residents of the area within proposed CFD No. 98.1.
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SECTION 3. Definitions. Unless the context otherwise requires, the teens defined in this
Section 3 shall for all purposes of this Agreement have the meanings herein specified.
Act. The term "Act" shall mean the Mello -Roos Community Facilities Act of
1982, Chapter 2.5 of Part 1 of Division 2 of Title 5 of the California Government Code,
commencing with Section 53311, as amended.
Agreement. The term "Agreement" shall mean this Joint Exercise of Powers
Agreement as the same now exists or as it may from time to time be amended pursuant to
the provisions hereof.
Authority. The term "Authority" shall mean the Bonita Canyon Public Facilities
Financing Authority created by this Agreement.
Board. The term `Board" shall mean the Governing Board of the Authority.
CFD Bonds. The term "CFD Bonds" shall mean bonds, notes or other evidence of
indebtedness of CFD No. 98-1 authorized and issued pursuant to the Act, including each
and all series of bonds, and shall also include, except where the context shall require
otherwise, any other form of indebtedness of CFD 98-1 authorized and issued pursuant to
the Act.
CFD 98-1. The term "CFD No. 98-1" shall mean Community Facilities District
No. 98-1 of the Bonita Canyon Public Facilities Financing Authority to be formed by the
Authority pursuant to the Act and in accordance with this Agreement.
Indenture. The term "Indenture" shall mean the indenture, fiscal agent agreement
or other instrument pursuant to which CFD Bonds are issued.
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Law. The term "Law" shall mean the Joint Exercise of Powers Law, Article 1 of
Chapter 5 of Division 7 of Title 1 of the California. Government Code, commencing with
Section 6500 thereof.
Parties. The term "Parties" shall mean the parties to this Agreement. "Party" shall
mean a party to this Agreement.
Project. The term "Project" shall mean the acquisition and construction of those
public facilities as determined by each Party.
SECTION 4. Purpose. This Agreement is made pursuant to the Law to provide for the
exercise of powers possessed by any of the Parties. In particular, the Parties desire to finance the
acquisition of real property and the acquisition and construction of certain public school and public
park facilities in the manner set forth in, and subject to the provisions of, this Agreement. Each
Party is empowered by the laws of the State of California to exercise those powers assigned to it in
this Agreement.
This Agreement is intended to be, and shall be construed to be, a joint exercise of
powers agreement adopted pursuant to Section 53316.2 of the Act.
SECTION 5. Creation of Authority. There is hereby created pursuant to the Law an
agency and public entity to be known as `Bonita Canyon Public Facilities Financing Authority".
As provided in the Law, the Authority shall be a public entity separate and apart from the Parties
and shall administer this Agreement. The debts, liabilities and obligations of the Authority shall
not constitute debts, liabilities or obligations of the Parties.
Within thirty (30) days after the effective date of this Agreement or any amendment
hereto, and prior to the issuance of any CFD Bonds or any bonds of the Authority, the Authority
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will cause a notice of this Agreement or such amendment to be filed with the California Secretary
of State in accordance with Section 6503.5 of the Law.
SECTION 6. lerm. This Agreement shall become effective upon execution hereof by the
Parties and shall continue in full force and effect until terminated by the Parties or as otherwise set
forth herein.
SECTION 7. Powers: Restriction Upon Exercise. The Authority shall have the power to
undertake and implement the Mello -Roos Proceedings, to finance the Projects, to exercise the
authority conferred on local agencies under the Act and to exercise such other rights, powers and
authority as are granted pursuant to the Law, subject to the limitations contained herein. Within
that limitation, the Authority shall have the powers granted to a "local agency" pursuant to the Act,
including the power to finance the purchase, or acquisition by condemnation (by a Party) or
otherwise, of a site or sites for a project, and the acquisition, construction, improvement, or
equipping and leasing, all or part of a project, subject, however, to the conditions and restrictions
of this Agreement.
The Authority is authorized, in its own name and pursuant to the Law, to do all acts
necessary for the exercise of said powers for said purposes, including the following:
(a) to make and enter into contracts;
(b) to employ agents or employees;
(c) to sue and be sued in its own name;
(d) to issue bonds and otherwise to incur debts, liabilities or obligations,
provided that no such bond, debt, liability or obligation shall constitute a debt, liability or
obligation of the members and to sell bonds by competitive or negotiated sales;
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(e) to apply for, accept, receive and disburse grants, loans and other aid from
any agency of the United States of America or of the State of California;
(f) to invest any money in its treasury pursuant to Sections 6505.5 and 6509.5
of the Law which is not required for the immediate necessities of the Authority, as the
Authority determines is advisable, in the same manner and upon the same conditions as
local agencies, pursuant to Section 53601 of the California Government Code and in such
other investments as permitted by the Law;
(g)
to apply for letters of credit or other form of financial guarantees in order to
secure the repayment of its bonds and enter into agreements in connection therewith;
(h) to carry out and enforce all the provisions of this Agreement;
(i) to make and enter into bond purchase agreements and any other agreements,
assignments and documents of any nature whatsoever as may be necessary or convenient in
the exercise of its powers hereunder or under the Law or the Act;
(j) to exercise any and all other powers as may be provided in the Act or in the
Law.
Pursuant to Section 6509 of the Law, the power of the Authority shall be subject to
the restrictions upon the manner of exercising the power of NMUSD.
The Authority shall undertake and implement the Mello -Roos Proceedings and
shall administer CFD No. 98-1, including employing and paying all consultants, annually levying
the CFD No. 98-1 special tax and all aspects of paying and administering the CFD Bonds and
complying with all State and Federal requirements pertaining to the proceedings, including the
requirements of the United States Internal Revenue Code. The Parties will not participate in nor
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be considered participants in the Mello -Roos Proceedings (other than as parties to this
Agreement).
The Authority will, to the extent of its available resources, indemnify and hold the
Parties harmless from any and all claims or suits arising out of the conduct of the Mello -Roos
Proceedings, the authorization for, the levying and collection of the CFD No. 98-1 special tax and.
the authorization for, issuance and administration of the CFD Bonds.
The Parties hereby consent to the formation of CFD No. 98-1 in conformance with
this Agreement and consent to the assumption of jurisdiction for the proceedings by the Authority,
with the understanding that the Authority may hereafter take each and every step required for or
suitable for consummation of the Mello -Roos Proceedings and the levying, collecting and
enforcement of the CFD No. 98-1 special taxes, and the issuance and enforcement of the CFD
Bonds.
SECTION 8. Termination of Powers. This Agreement shall continue until rescinded or
terminated by agreement of the Parties; provided, however, that, so long as the Board is the
legislative body of CFD No. 98-1, this Agreement shall not be rescinded or terminated, unless no
CFD bonds are outstanding, the CFD No. 98-1 special tax has been terminated and CFD No. 98-1
has been dissolved, and provided, further, that this Agreement shall not be rescinded or terminated
so long as any bonds or other indebtedness of the Authority remains outstanding or unpaid.
SECTION 9. Governing Board. The Authority shall be administered by the Board, which
shall consist of two (2) members from each of the Parties, unless and until such number is changed
by amendment of this Agreement. The members from each Party shall be designated by the
governing body of such Party, or, at the election of such governing body, designated by the
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Superintendent of a School District or the City Manager of City. Each member shall serve in his
or her individual capacity as a member of the Board. Each Party may designate one or more
alternate members of the Board.
Members of the Board shall not receive any compensation for serving as such, but
shall be entitled to reimbursement for any expenses actually incurred in connection with serving as
a member if the Board shall determine that such expenses shall be reimbursed and there are
unencumbered funds available for such purpose.
SECTION 10 Meetings of the Board.
(a) Regular Meetings. The Board shall hold at least one regular meeting each
year, and by resolution may provide for the holding of regular meetings at more frequent
intervals. The date upon which, and the hour and place at which, each such regular
meeting shall be held shall be fixed by resolution or motion of the Board, or by designation
of the President of the Authority.
(b) Special Meetings. Special meetings of the Board may be called in
accordance with the provisions of Section 54956 of the California Government Code. All
business which may be conducted at regular meetings, may also be conducted at special
meetings.
(c) Legal Notice. All meetings of the Board shall be called, noticed, held and
conducted subject to the provisions of the Ralph M. Brown Act (Chapter 9 of Part 1 of
Division 2 of Title 5 of the California Government Code, Sections 54950-54962).
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(d) Minutes. The Secretary of the Authority shall cause minutes of all
meetings of the Board to be kept and shall, as soon as possible after each meeting, cause a
copy of the minutes to be forwarded to each member of the Board and to the Parties.
(e) rujn. One member of the Board from each of the Parties shall
constitute a quorum for the transaction of business. Less than a quorum may adjoum from
time to time.
(f) Voting. All voting of the Authority shall reside in the Board. Each Party
represented on the Board shall have one vote. The unanimous affirmative vote of each
Party shall be required to take any action by the Board.
(g) Bylaws. The Board may adopt, from time to time, such bylaws, rules and
regulations for the conduct of its meetings as are necessary for the purposes thereof.
SECTION 11. Officers: Duties: Bonds.
(a) The officers of the Authority shall be a President, a Vice -President, a
Treasurer, a Controller and a Secretary. The Board shall elect its President and Vice -
President from among its members, each for a one-year term. Annually, after levying the
CFD No. 98-1 special tax, a President and Vice -President shall be elected. Persons serving
as President or Vice -President may be re-elected to the same office. The Treasurer,
Controller or Secretary need not be members of the Board. If either the President or Vice -
President shall cease to be a Board member, he or she shall also cease to be an officer. The
Board shall promptly elect a replacement officer. The Treasurer, Controller and Secretary
shall be appointed by the Board and serve at its pleasure.
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(b) The President shall conduct the meetings of the Board and shall be
authorized to sign such contracts on its behalf as shalt have been approved by the Board,
and such certificates and other documents as shall be necessary or appropriate. The Vice -
President shall serve in the President's absence.
(c) The Treasurer and Controller shall have the powers and duties specified in
Section 6505.5 of the Law.
(d) The Treasurer and Controller of the Authority are designated as the public
officers or persons who have charge of, handle, or have access to property of the Authority,
and each such officer shall file an official bond with the Secretary of the Authority in the
amount of $25,000. To the extent permitted by law, any such officer may satisfy this
requirement by filing an official bond obtained in connection with another public office.
(e) The Board shall have the power to appoint such other officers and
employees as it may deem necessary and to retain independent counsel, consultants and
accountants.
(f) None of the officers, agents, or employees directly employed by the Board
shall be deemed, by reason of their employment by the Board, to be employed by the
Parties or by reason of such employment, to be subject to the requirements of the Parties.
(g) All of the privileges and immunities from liability, exemption from laws,
ordinances, rules and regulations, and all benefits which apply to the activities of public
agencies when performing their respective functions, shall apply to the officers, agents, or
employees of the Authority while engaged in the performance of their duties.
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SECTION 12. Fiscal Year. Unless and until changed by resolution of the Board, the fiscal
year of the Authority shall be the period from July 1 of each year to and including the following
June 30, except for the first fiscal year which shall be the period from the date of this Agreement
to June 30, 1998.
SECTION 13. Adoption of Local Goals and Policies. Pursuant to California Government
Code Section 53312.7, the Board of Directors shall first adopt local goals and policies as required
by such section prior to initiating proceedings to establish a CFD.
SECTION 14. Withdrawal of Party. The Parties recognize that a portion of the territory
proposed to be included within the boundaries of CFD No. 98-1 is presently located within the
boundaries of IUSD and that efforts are being made to transfer such territory to NMUSD. In the
event the territory is transferred to NMUSD, upon such transfer, IUSD shall withdraw from the
Authority, this Agreement shall be amended to reflect such withdrawal, and IUSD shall bear no
liability for any action taken by the Authority, including any action with regard to CFD No. 98-1,
on or after such withdrawal. In the event such territory is not transferred to NMUSD, but remains
within the boundaries of IUSD, and NMUSD and IUSD terminate their efforts to effect such
transfer upon such termination of efforts, NMUSD shall withdraw from the Authority, this
Agreement shall be amended to reflect such withdrawal, and NMUSD shall bear no liability for
any action taken by the Authority, including any action with regard to CFD No. 98-1 on or after
such withdrawal.
SECTION 15. Disposition of Assets. The proceeds of the sale of any CFD Bonds shall be
disbursed for the costs of issuance of such CFD Bonds and then for the costs of acquisition and
construction of the Project financed thereby and as otherwise specified by the Indenture pursuant
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to which such CFD Bonds are issued. The specific procedures for the payment of contractors and
vendors or the reimbursement to the Parties or others of their expenditures eligible for
reimbursement from the CFD Bond proceeds shall be those of the Parties themselves, as may be
modified by the Indenture pursuant to which such CFD Bonds are issued. The Parties agree to use
all CFD Bond proceeds for the purposes specified under the Agreement. In the event that CFD
Bonds are not issued, then all assets of the Authority shall be distributed to the respective grantors
or assignors thereof. After the completion of the purpose of this Agreement, any surplus money on
hand shall be returned to the Parties in proportion to the contributions made.
SECTION 16. Conflict of Interest Code. The Authority, by resolution, shall adopt a
Conflict of Interest Code as required by law.
SECTION 17. Operation of Projects. Except as may relate to property acquired and held
on behalf of the Authority, each Party agrees to construct or acquire each Project financed for it
through the issuance of CFD Bonds, to utilize the requisition procedure to be set forth in the
Indenture for payment of the costs thereof from CFD Bond proceeds, to take ownership and
maintenance responsibility for all such Projects, and to indemnify and hold harmless all other
Parties hereto, and the Authority, from any and all claims arising out of all aspects of planning,
acquiring, constructing, reconstructing, rehabilitating, furnishing, equipping and operating such
Projects.
Each Party shall administer the acquisition and construction of each Project
financed for it through the issuance of CFD Bonds subject to such requirements as may be
imposed by the Indenture pursuant to which such CFD Bonds are issued.
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SECTION 18. Administration of CFD No. 98-1. Costs of the financing and any
administrative or other costs attributable directly to CFD No. 98-1 shall be paid directly from CFD
Bond proceeds or from CFD No. 98-1 special tax proceeds.
Any savings realized in the construction or acquisition of any facilities for any Party
shall be held for the purpose of financing other facilities authorized for that Party by the
proceedings conducted under the Act.
If, for any reason, any Party holds funds of CFD No. 98-1 at any time, that Party
agrees to hold and invest such funds in strict compliance with any instructions provided by the
Authority, provided that nothing shall interfere with any Parry's right to make timely payments on
any contracts.
SECTION 19. Agreement Not Exclusive. This Agreement shall not be exclusive and shall
not be deemed to amend or alter the terms of other agreements between the Parties, except as
expressly provided herein.
SECTION 20. Contributions and Advances. Contributions or advances of public funds
and of personnel, equipment or property may be made to the Authority by the Parties or other
persons for any of the purposes of this Agreement. Payment of public funds may be made to
defray the cost of any such contribution. Any such advance may be made subject to repayment
from either CFD Bond proceeds or CFD No. 98-1 special taxes, and shall be repaid out of CFD
Bond proceeds only if a CFD Bond financing contemplating such repayment is successfully
completed.
SECTION 21. Accounts and Reports. The Authority shall establish and maintain such
funds and accounts as may be required by good accounting practice and by any provision of any
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Indenture. The books and records of the Authority shall be open to inspection at all reasonable
times by the Parties and their representatives. The Authority agrees to have prepared, and keep
available to all Parties, a record of all CFD No. 98-1 special tax collections or CFD Bond proceeds
received each year by the Authority.
The Treasurer of the Authority shall make quarterly reports to the Authority and the
Parties in accordance with Section 6505.5(e) of the Law.
The Controller of the Authority shall either make or contract with a certified public
accountant or public accountant to make an annual audit of the accounts and records of the
Authority. In each case the minimum requirements of the audit shall be those prescribed by the
State Controller for special districts under Section 26909 of the California Government Code and
shall conform to generally accepted auditing standards. When such an audit of accounts and
records is made by a certified public accountant or public accountant, a report thereof shall be filed
as a public record with the Parties and also with the County Auditor of Orange County. Such
report shall be filed within 12 months of the end of the fiscal year under examination.
Any costs of the audit, including contracts with, or employment of, certified public
accountants or public accountants in making an audit pursuant to this Section, shall be borne by
the Authority and shall be a charge against any unencumbered funds of the Authority available for
the purpose. and may be paid out of special tax revenues.
In any year in which the annual budget of the Authority does not exceed five
hundred dollars ($500), the Board may replace the annual special audit with an audit covering a
two-year period.
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SECTION 22. Breach. If default shall be made by any of the Parties in any covenant
contained in this Agreement, such default shall not excuse any other Party from fulfilling its
obligations under this Agreement and each Party shall continue to be liable for the performance of
all conditions herein contained. The Parties hereby declare that this Agreement is entered into for
the benefit of the Authority created hereby and the Parties hereby grant to the Authority the right to
enforce by whatever Lawful means the Authority deems appropriate all of the obligations of each of
the Parties hereunder. Each and all of the remedies given to the Authority hereunder or by any law
now or hereafter enacted are cumulative and the exercise of one right or remedy shall not impair
the right of the Authority to any or all other remedies.
SECTION 23. Severability. Should any part, term, or provision of this Agreement be
decided by the courts to be illegal or in conflict with any law of the State of California, or
otherwise be rendered unenforceable or ineffectual, the validity of the remaining parts, terms or
provisions hereof shall not be affected thereby.
SECTION 24. Successors Assignment This Agreement shall be binding upon and shall
inure to the benefit of the successors of the Parties. No Party may assign any right or obligation
hereunder without the consent of the others.
SECTION 25. Amendment of Agreement. This Agreement may be amended by
supplemental agreement executed by the Parties (a) at any time prior to the issuance of any CFD
Bonds, or any bonds or other indebtedness of the Authority, or (b) at any time after the issuance of
CFD Bonds or any bonds or other indebtedness of the Authority in any manner that will not
materially adversely affect the owners of such CFD Bonds, bonds or other indebtedness.
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The Mello -Roos Proceedings permitted by this Agreement may vary from the terms
hereof with the unanimous written consent of the Board.
SECTION 26. Form of Approvals. Whenever an approval is required in this Agreement,
unless the context specifies otherwise, it shall be given by resolution duly and regularly adopted by
the boards of each of the Parties and, in the case of the Authority, by resolution duly and regularly
adopted by the Board. Whenever in this Agreement any consent or approval is required, the same
shall not be unreasonably withheld.
SECTION 27. Section I-Ieadingg. All section headings contained herein are for
convenience of reference only and are not intended to define or limit the scope of any provision of
this Agreement.
SECTION 28. Notices. Notices hereunder shall be in writing and shall be sufficient if
delivered to:
Irvine Unified School District
5050 Barranca Parkway
Irvine, California 92604
Attention: Superintendent
Newport -Mesa Unified School District
2985 Bear Street, Building A
Costa Mesa, California 92626
Attention: Superintendent
City of Newport Beach
3300 Newport Boulevard
P.O. Box 1768
Newport Beach, CA 92658-8915
Attention: City Manager
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SECTION 29. Law Governing. This Agreement is made in the State of California under
the Constitution and laws of the State of California, and is to be construed.
SECTION 30. Enforcement by Authority. The Authority is hereby authorized to take any
or all legal or equitable actions, including, but not limited to, injunction and specific performance,
necessary or permitted by law to enforce this Agreement.
SECTION 31. Annexation to City a Condition Precedent. The Parties recognize that the
territory proposed to be included within the boundaries of CFD No. 98-1 is presently located
within the boundaries of the City of Irvine and that efforts are being made to annex such territory
to the City. Section 53316.2(c) of the Act provides that a party to a joint exercise of powers
agreement adopted pursuant to Section 53316.2 of the Act (such as this Agreement), may use the
proceeds of any special tax levied pursuant to the Act or of any bonds or other indebtedness issued
pursuant to the Act to provide facilities which that contracting party is otherwise authorized by law
to provide. The Parties recognize that the City will not be authorized by law to provide facilities
within such territory until such annexation is complete. Accordingly, no CFD No. 98-1 special tax
/ / /
/ / /
/ / /
/ / /
/1/
/ / /
/ / /
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shall be levied, and no CFD Bonds shall be issued, to finance City Projects unless and until the
annexation to the City of said territory is complete.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
above written.
IRVINE UNIFIED SCHOOL DISTRICT NEWPORT-MESA UNIFIED SCHOOL DISTRICT
By
Its
President of the Board of
Education
/ i
Attest
y: i,�! ,�� ' 'E. Attest:
` ;i % 1_r
C rk of the Boarof
ucation
REVIEWED AND APPROVED. CITY OF NE BEACH
AS W Pam4 AND CONTENT:
BOWIE, APNESaN, KADI, WiT..':'_R
& GThMfl7E - Legal Counsel By`�—
for Irvine Unified School
District
By:• ttXaA 41. (Sir)
Wendy H. Wiles
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Its
Attest:
REVIEWED AND APPROVED AS TO FORM
AND CONTENT: PARKER, COVERT &
CHIDESTER, egal Counsel for
Newport-Lesit Unified S hool District
By:
18
pencer E. Covert
181