HomeMy WebLinkAbout2008-01-15; City Council; 19286; Community Facilities District No. 3 (Faraday-Melrose) Authorizing the Issuance of Special Tax Bonds and Approving the Form of Various Related Documents for ImprovementCITY OF CARLSBAD - AGENDA BILL
AB# 19,286
MTG. 1/15/08
DEPT. FIN
COMMUNITY FACILITIES DISTRICT NO. 3
(FARADAY-MELROSE)
AUTHORIZING THE ISSUANCE OF
SPECIAL TAX BONDS AND APPROVING
THE FORM OF VARIOUS RELATED
DOCUMENTS FOR IMPROVEMENT AREA 2
DEPT. HEAD ^PjL
CITY ATTY. tf&r
CITY MGR. (/A^~
RECOMMENDED ACTION:
Adopt Resolution No. 2008-011 authorizing and providing for the issuance of special tax bonds for
Improvement Area 2 of Community Facilities District No. 3 (Faraday-Melrose), approving the form of the
Fiscal Agent Agreement, Purchase Contract, Preliminary Official Statement and other documents
related thereto and authorizing certain actions in connection with the issuance of such bonds.
ITEM EXPLANATION:
A Community Facilities District (CFD) is a mechanism to finance the acquisition or construction of public
improvements and to spread the cost of such public improvements among properties that will benefit
from the improvements. Council Policy 33 sets forth the policies and procedures to be followed in using
CFD financing.
In previous Council meetings, the City Council adopted Resolution 2005-329 forming Community
Facilities District No. 3 (CFD #3) to fund certain public improvements necessary to serve the Palomar
Forum, Raceway and Carlsbad Oaks North developments; all of which are non-residential
developments. The City Council also adopted a map of CFD #3 boundaries; Resolution 2005-300;
approved the acquisition agreement; Resolution 2005-301; and approved the use of tax-exempt debt
and set the maximum tax for the parcels of land within the CFD boundaries; Resolution 2005-330. Also,
previously adopted was the issuance of bonds for Improvement Area No. 1 (IA1) of CFD #3: Resolution
2006-084. The adoption of the Resolution in this agenda item will be the final actions necessary to issue
bonds for Improvement Area No. 2 (IA2) of CFD #3.
The boundaries of CFD #3 are shown on the location map in Exhibit 1 and are divided into two
improvement areas. IA1 includes the Palomar Forum (Zone A) and the Raceway property (Zone B)
while IA2 contains the Carlsbad Oaks North property. IA1 contains two separate tax rate zones. These
distinctions were necessary to properly spread the cost of the improvements to the properties that are
benefiting from them. The taxable acreage, lots and current maximum tax rates for each of the
properties are shown below.
Property Name
IA1 , Zone A - Palomar Forum
IA1 , Zone B - Raceway
IA2 - Carlsbad Oaks North
Taxable
Acreage
51.50
86.10
167.30
Number of
Developable Lots
8
25
23
Annual Maximum
Tax Rate
$15,241 per acre
$7,265 per acre
$13,861 per acre
DEPARTMENT CONTACT: Lisa Irvine 760-602-2430 lirvin@ci.carlsbad.ca.us
FOR CITY CLERKS USE ONLY. v ;
COUNCIL ACTION:APPROVED
DENIED
CONTINUED
WITHDRAWN
AMENDED
AD'
D
D
D
CONTINUED TO DATE SPECIFIC
CONTINUED TO DATE UNKNOWN
RETURNED TO STAFF
OTHER -SEE MINUTES
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Page 2
The total estimated cost of the improvements to be acquired by the City from the proceeds of bonds
issued for CFD #3 is $25.0 million. The improvements include the following:
• The widening of Palomar Airport Road from west of Melrose Drive Intersection to the Vista City
Limits;
• Faraday Avenue from Orion Street to Melrose Drive;
• Melrose Drive from Palomar Airport Road to the Vista City Limits;
• Melrose Drive construction of right turn lane south of Palomar Airport Road;
• El Fuerte from northerly terminus to the future extension of Faraday Avenue; and
• Palomar Airport Road construction of eastbound right turn lane onto Melrose Drive south of
Palomar Airport.
Related costs for environmental, acquisition and creation of mitigation lands, engineering, and
inspection are included in the cost of acquiring such improvements in addition to the actual cost of
construction.
Of the total $25.0 million estimated cost, approximately $10 million was funded from the IA1 bond
issuance and approximately $15.0 million will be from the IA2 issuance. Since only the bonds for IA2
are being issued at this time, the remainder of the discussion will focus only on IA2.
The addition of bond issuance costs and a debt service reserve fund will add approximately $3.2 million
to the improvement costs for IA2 resulting in an anticipated bond issue amount of approximately $18.3
million. Also included in this issuance is an escrow fund of $3.8 million that will initially reduce the
amount placed in the improvement fund by such amount. The Resolution provides for a "not to exceed"
threshold of $20.0 million of bonds to be issued. The "not to exceed" threshold of $20.0 million was
developed to allow for some cushion in case of changes in the financing assumptions and/or due to
possible instability of the bond market. The non-rated tax-exempt bonds are scheduled for sale in early
February of 2008.
The City is not responsible for the repayment of the bonds. The bonds will be secured by the property
within CFD #3 IA2 and repaid through the annual taxes collected from the subject property. The annual
tax levy will be included on the property tax bill. However, through the attached documents, the City is
pledging to initiate foreclosure proceedings when the cumulative aggregate delinquent assessment
installments of one property owner exceed $10,000 or when the total assessment receipts for the year
are less than 95% of what was billed.
Compliance with Council Policy 33
In compliance with City Policy Statement No. 33, the City's Special District Review Committee has
reviewed this CFD, finds that it complies with the terms and conditions of the Council's policy. Some of
the more specialized conditions are noted below. Due to the restrictions of Council Policy 33 and
previous Council guidance, there are several provisions for CFD #3 and bond financing which are
unique to Carlsbad and/or this bond issue. These provisions are further described in the attached
documents and adoption of the Resolution will indicate Council's acceptance of these provisions. These
terms have been reviewed and approved by the underwriter, financial advisor and bond counsel.
• Pass-through of the Special Tax:
The property owners have requested that they be authorized to pass through the special taxes to
new property owners as the lots are sold. Since the boundaries of the proposed District consist of
only non-residential properties, Policy 33 does allow the pass-through of the taxes at the discretion
of the City Council. Adoption of Resolution 2006-085, April 4, 2006 provided Council approval of the
developer's request.
Page 3
• Overall Value-to-lien:
According to Council Policy 33 guidelines, the project property value-to-lien ratio should be at least
4:1 after the installation of the improvements to be financed. The overall value-to-lien based on the
most recent preliminary bond sizing of $18.4 million is 4:1 for IA2, when use of an escrow fund is
taken into consideration.
• Escrow Fund:
The amount needed to be deposited into the improvement fund from this issuance is $15.2 million;
however this would result in a value-to-lien (VTL) ratio below 4:1. In an effort to still issue the $15.2
million needed for the improvement fund and to meet the guideline of Council Policy 33 an escrow
fund will be established. An amount equal to the amount needed to reduce the initial deposit into
the improvement fund so that the VTL will be at least 4:1 will be placed into an escrow fund.
Amounts placed in the escrow fund are not considered part of the VTL calculation. This escrow
fund, along with capitalized interest associate with the amount placed in escrow, will be held with a
fiscal agent as are the other funds created by this issuance.
The amount placed in the escrow fund will be allowed to be transferred to the improvement fund as
the aggregate appraised value of the properties in IA2 increases. In order for a transfer to occur
various release tests must be performed and met. The essence of the first release test is to require
an appraisal to be performed on IA2. The appraisal is to be paid by the developers of the IA2 lots.
Using the new aggregate appraised value of IA2 to then calculate the amount (if any) that the
improvement fund can be increased so that the non-escrowed funds in the improvement fund create
at a minimum a VTL ratio of 4:1. A second part of the test is that certain properties are not
delinquent on their special taxes. As amounts are released from the escrow fund an appropriate
amount will also be transferred into the reserve fund as required by the bond documents. This
amount will also be funded from the escrow fund. In order for a transfer to occur a written certificate
from the City to the fiscal agent is required authorizing the transfer.
The release test can only occur once in every twelve month period and the escrow fund must be
depleted by September 1, 2010, unless an extension is granted by the City. If at September 1, 2010
there is still a deposit remaining in the escrow fund, the bonds associated with this amount will be
called and the principal balance of the called bonds will be redeemed. Also, if at any time up to this
date the special taxes associated with specific property become delinquent the remaining funds in
the escrow fund can be called and used to redeem the bonds. Any amounts that were transferred
from the escrow fund to the improvement fund will remain outstanding.
• Disclosure:
Council Policy 33 requires certain disclosures to potential purchasers of property within a CFD in
addition to that required by State law. Specifically, Council Policy 33 requires that the property
owner include information about the CFD in their sales documentation and that the prospective
buyers are given an opportunity to pay off their CFD obligation up front. Adoption of the attached
Resolution approves the form of the agreement between the City and the current and future
property owners in CFD #3 to provide such disclosure.
• Sale of the Bonds:
The attached Resolution authorizes the sale of the bonds to Stone & Youngberg on a negotiated
basis. Council previously authorized Stone & Youngberg to act as the underwriter on this bond
issue; Resolution 2001-373. The current resolution sets the total amount of the underwriter's
discount at an amount not to exceed 2% of the bond issue. It also states that the interest rate on
the bonds cannot exceed 7.0% per year. The actual amount of the discount and the interest rate
will be set when the bonds are priced. The City's special tax consultant, Special District Financing
and Administration, will participate in the bond sale to ensure that the City is receiving a fair price for
the bonds.
Page 4
Requested Actions
Staff is requesting that Council adopt the attached Resolution which will:
1. Authorize issuance of bonds not to exceed $20.0 million for CFD #3 IA2.
2. Approve the form of the documents needed to cause the bonds to be issued, sold and delivered
and authorize certain officials to execute the documents with such additions and changes as
advisable subject to review by the City Attorney and Bond Counsel and/or Disclosure Counsel.
These documents are on file with the City Clerk and include the following:
• Preliminary Official Statement
• Fiscal Agent Agreement
• Continuing Disclosure Certificate
• Bond Purchase Contract
FISCAL IMPACT:
The bonds will fund the acquisition of public improvements of benefit to the areas within the boundaries
of IA2 of CFD #3. Together with issuance costs, a debt service reserve fund, and an escrow fund the
total issue amount should approximate $18.3 million; although staff is requesting authority to bond up to
$20 million. The City will receive reimbursement for certain administrative costs related to ongoing
costs. The City is not responsible for the funding of any of the improvements included within CFD #3
IA2. The sale of bonds is expected in early February 2008.
The maximum annual special taxes that can be levied on the properties are $13,861 per acre in IA2.
The maximum special taxes wilj escalate based on the change in the Engineering News Record index
annually. The actual tax rate will be set annually by the City Council based upon the needs of CFD #3
IA2 similar to the City's CFD #3 IA1.
At the time of the first CFD #3 issuance for IA1 it was known that a separate issuance would occur for
IA2. When IA1 was issued IA2 was not in a state of development to make it possible to issue bonds.
IA2 is now nearing a state of development that will allow for the issuance of special tax bonds to help
secure the funding of public improvements of benefit in IA2 of CFD #3.
ENVIRONMENTAL IMPACT:
The Carlsbad Oaks North (CT 97-13), Carlsbad Raceway Business Park (CT98-10), and Palomar
Forum (CT99-06) projects have all processed environmental review per CEQA requirements. A
Program Environmental Impact Report and the associated Candidate Findings of Fact, Statement of
Overriding Considerations and Mitigation Monitoring and Reporting Program were certified on October
8, 2002 for the Carlsbad Oaks North project. Mitigated Negative Declarations dated July 15, 2001 were
issued for the Carlsbad Raceway Business Park and Palomar Forum projects.
EXHIBITS:
1. Boundary Map Community Facilities District No. 3.
2. Resolution No. 2008-011 authorizing and providing for the issuance of special tax bonds for
Improvement Area 2 of Community Facilities District No. 3 (Faraday-Melrose), approving the form
of the Fiscal Agent Agreement, Purchase Contract, Preliminary Official Statement and other
documents related thereto and authorizing certain actions in connection with the issuance of such
bonds.
3. Preliminary Official Statement (without exhibits)
PageS
4. Documents on file with the City Clerk:
a. Fiscal Agent Agreement by and between the City of Carlsbad and The Bank of New
York Trust Company;
b. Preliminary Official Statement (with all exhibits);
c. Bond Purchase Contract between Stone & Youngberg as the underwriter and the City
of Carlsbad;
d. Continuing Disclosure Certificate.
e. Community Facilities District Disclosure Agreement
EXHIBIT #1
AMENDMENT TO BOUNDARY MAP
COMMUNITY FACILITIES DISTRICT NO. 3
CITY OF CARLSBAD
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA
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EXHIBIT #2
1 RESOLUTION NO. 2008-011
2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, AUTHORIZING AND PROVIDING FOR THE ISSUANCE
3 OF SPECIAL TAX BONDS FOR IMPROVEMENT AREA 2 OF
4 COMMUNITY FACILITIES DISTRICT NO. 3, APPROVING THE FORM
OF FISCAL AGENT AGREEMENT, PURCHASE CONTRACT,
5 PRELIMINARY OFFICIAL STATEMENT AND OTHER DOCUMENTS
RELATED THERETO AND AUTHORIZING CERTAIN ACTIONS IN
6 CONNECTION WITH THE ISSUANCE OF SUCH BONDS
7
8 WHEREAS, the CITY COUNCIL of the CITY OF CARLSBAD, CALIFORNIA (this
9 "City Council"), did previously conduct proceedings to form and did form a community
10 facilities district and designate two improvement areas therein pursuant to the terms and
11
provisions of the "Mello-Roos Community Facilities Act of 1982", being Chapter 2.5,
12
Part 1, Division 2, Title 5 of the Government Code of the State of California (the "Act"),
such community facilities district designated as Community Facilities No. 3 (the
15 "Community Facilities District") and such improvement areas designated as
16 Improvement Area 1 and Improvement Area 2, respectively, for the purpose of financing
17 the acquisition or construction of certain public improvements; and,
18 WHEREAS, this City Council has previously declared its intention to issue bonds
19 for each Improvement Area of the Community Facilities District to finance the
20 acquisition or construction of such improvements, such bonds be issued pursuant to the
21
terms and provisions of the Act and Policy 33 of the City Council pertaining to the use of
22
Assessment Districts, Community Facilities Districts and Bridge and Thoroughfare
23
Districts, as amended to date (the "Policy 33"); and,
25 WHEREAS, the City Council did previously authorize the issuance of bonds for
26 Improvement Area 1 and, on May 11, 2006, the City, acting for and on behalf of the
27 District, issued $11,340,000 principal amount of City of Carlsbad Community Facilities
28 District No. 3 2007 Special Tax Bonds (Improvement Area 1); and,
1 WHEREAS, at this time this City Council desires to set forth the general terms
2 and conditions relating to the authorization, issuance and administration of the Bonds
(defined below) for Improvement Area 2; and,
4
WHEREAS, the forms of the following documents have been presented to and
5
considered for approval by this City Council:
6
A. Fiscal Agent Agreement by and between the Community Facilities District
7 and The Bank of New York Trust Company, N.A., as fiscal agent (the
"Fiscal Agent") setting forth the terms and conditions relating to the
^ issuance and sale of the Bonds (the "Fiscal Agent Agreement");
9 B. Purchase Contract authorizing the sale of the Bonds to Stone &
10 Youngberg LLC, the designated underwriter (the "Purchase Contract");
11 C. Preliminary Official Statement containing information including but not
limited to the Community Facilities District, Improvement Area 2 and the
12 Bonds, including the terms and conditions thereof (the "Preliminary Official
Statement"); and
14 D. Continuing Disclosure Certificate to be executed by the City pursuant to
which the City will be obligated to provide ongoing annual disclosure
15 relating to the Bonds (the "Continuing Disclosure Certificate"); and
16 WHEREAS, this City Council, with the aid of City staff, has reviewed and
17 considered the Fiscal Agent Agreement, the Purchase Contract, the Continuing
18 Disclosure Certificate and the Preliminary Official Statement and finds those documents
19 suitable for approval, subject to the conditions set forth in this resolution; and
20 WHEREAS, all conditions, things and acts required to exist, to have happened
21 and to have been performed precedent to and in the issuance of the Bonds as
22 contemplated by this resolution and the documents referred to herein exist, have
23 happened and have been performed or have been ordered to have been preformed in
24 due time, form and manner as required by the laws of the State of California, including
25 the Act and Policy 33.
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1 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CARLSBAD
2 HEREBY RESOLVES AS FOLLOWS:
3 1. Recitals. The above recitals are true and correct.
4 2. Determinations. This legislative body hereby makes the following
5 determinations pertaining to the proposed issuance of the Bonds:
6
(a) Policy 33 generally requires that the full cash value of the properties within
7 Improvement Area 2 subject to the levy of the special taxes securing the
Bonds (the "Taxable Properties") must be at least 4 times the principal
amount of the Bonds, plus any prior or anticipated fixed assessment liens
9 and/or special tax liens (collectively, "Land Secured Indebtedness").
Policy 33 does, however, permit the City Council, in its sole discretion, to
10 accept a form of credit enhancement including the escrow of bond
proceeds to offset a deficiency in the required value to debt ratio as it
11 applies to the Taxable Property.
12 In order to determine the full cash value of the Taxable Properties the City
retained Bruce W. Hull & Associates (the "Appraiser"), a state certified real
13 estate appraiser, as defined in Business and Professions Code Section
11340(c) to undertake an appraisal of the Taxable Properties. The
Appraiser concluded that the aggregate full cash value of the Taxable
15 Properties as of November 10, 2007 was $63,974,000. Based upon the
proposed maximum principal amount of the Bonds, the full cash value of
16 the Taxable Property would be 3.19 times the Land Secured
Indebtedness.
17
To offset the deficiency in the foregoing value to debt ratio, a portion of the
18 proceeds of the Bonds will, pursuant to the terms of the Fiscal Agent
Agreement, be deposited into an Escrow Fund so that the full tax value of
19 the Taxable Property will be 4 times the Land Secured Indebtedness when
2Q considering only the non-escrowed proceeds of the Bonds. Proceeds of
the Bonds deposited in the Escrow Fund will be permitted to be released
21 from the Escrow Fund and used for the purposes of the Bonds only if the
full tax value of all Taxable Property will be 4 times the Land Secured
22 Indebtedness when considering only the non-escrowed proceeds of the
Bonds following any such release. If any portion of the proceeds of the
23 Bonds deposited in the Escrow Fund is not released prior to the expiration
of the escrow period, such proceeds will be utilized to redeem Bonds and
24 thereby increase the value to debt ratio based upon the outstanding
principal amount of the Bonds following such redemption.
2fi The City Council determines that the proposed escrow structure will
adequately offset the deficiency in the existing value to debt ratio.
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1 (b) The terms and conditions of the Bonds as contained in the Fiscal Agent
Agreement are consistent with and conform to Policy 33.
- (c) As a result of the current status of development of the property within
Improvement Area 2 and the relative overall lack of diversity of ownership
4 of property therein, the private sale of the Bonds will result in a lower
overall cost to the owners of the Taxable Properties.
5
6 3. Bonds Authorized. Pursuant to the Act, this Resolution and the Fiscal
7 Agent Agreement, limited obligation bonds of the City designated as "City of Carlsbad
g Community Facilities District No. 3 2008 Special Tax Bonds (Improvement Area 2)" (the
9 "Bonds") in an aggregate principal amount not to exceed $20,000,000 are hereby
10 authorized to be issued for and on behalf of Improvement Area 2. The date, manner of
11 payment, interest rate or rates, interest payment dates, denominations, form,
12 registration privileges, manner of execution, place of payment, terms of redemption and
13 other terms, covenants and conditions of the Bonds shall be as provided in the Fiscal
14 Agent Agreement as finally executed.
15 4. Authorization and Conditions. The City Manager, the Acting City
16 Manager, the Assistant City Manager, the Director of Finance and such other official or
17 officials of the City as may be designated in writing by this City Council, the City
13 Manager, or the Acting City Manager (each, an "Authorized Officer") are each hereby
19 authorized and directed to execute and deliver the final form of the various documents
20 and instruments described in this Resolution, with such additions thereto or changes
21 therein as such Authorized Officer may deem necessary and advisable provided that no
22 additions or changes shall authorize an aggregate principal amount of Bonds in excess
23 of $20,000,000, an annual interest rate on the Bonds in excess of seven percent (7.0%)
24 per year and underwriter's discount on the Bonds in excess of two percent (2.0%) of the
25 par amount of the Bonds (excluding original issue discount, if any). The approval of
26 such additions or changes shall be conclusively evidenced by the execution and
27 delivery of such documents or instruments by an Authorized Officer, upon consultation
28
1 with and review by the City Attorney, Best Best & Krieger LLP, bond counsel, and/or
2 Jones Hall, A Professional Corporation, disclosure counsel, as applicable.
3 5. Fiscal Agent Agreement. The form of Fiscal Agent Agreement by and
4 between the City and the Fiscal Agent, with respect to the Bonds as presented to this
5 City Council and on file with the City Clerk, including each and every covenant
6 contained therein, is hereby approved. An Authorized Officer is hereby authorized and
7 directed to cause the same to be completed and executed on behalf of the City, subject
8 to the provisions of Section 3 above.
9 6. Official Statement and Continuing Disclosure Certificate. The City Council
10 hereby approves the form of the Preliminary Official Statement as presented to this City
11 Council and on file with the City Clerk, together with any changes therein or additions
12 thereto deemed advisable by the Director of Finance or, in the absence of the Director
13 of Finance, another Authorized Officer. Pursuant to Rule 15c2-12 under the Securities
14 Exchange Act of 1934 (the "Rule") the Director of Finance or, in the absence of the
15 Director of Finance, another Authorized Officer is authorized to determine when the
16 Preliminary Official Statement is deemed final, and the Director of Finance or such other
17 Authorized Official is hereby authorized and directed to provide written certification
18 thereof. The execution of the final Official Statement, which shall include such changes
19 and additions thereto deemed advisable by the Director of Finance or, in the absence of
20 the Director of Finance, another Authorized Officer pursuant to the Rule, shall be
21 conclusive evidence of the approval of the final Official Statement by the Community
22 Facilities District. The City Council hereby authorizes the distribution of the final Official
23 Statement by the Underwriter as the initial purchaser of the Bonds. The form of
24 Continuing Disclosure Certificate by and between the Community Facilities District and
25 the Dissemination Agent as presented to this City Council and on file with the City Clerk
26 is hereby approved. An Authorized Officer is hereby authorized and directed to cause
27
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1 the same to be completed and executed on behalf of the Community Facilities District,
2 subject to the provisions of Section 3 above.
3 7. Sale of Bonds. This City Council hereby authorizes and approves the
4 negotiated sale of the Bonds to the Underwriter. The form of the Purchase Contract is
5 hereby approved and an Authorized Officer is hereby authorized and directed to
6 execute the Purchase Contract on behalf of the Community Facilities District upon the
7 execution thereof by the Underwriter, subject to the provisions of Section 3 above.
8 8. Bonds Prepared and Delivered. Upon the execution of the Purchase
9 Contract, the Bonds shall be prepared, authenticated and delivered, all in accordance
10 with the applicable terms of the Act and the Fiscal Agent Agreement, and any
11 Authorized Officer and other responsible City officials, acting for and on behalf of the
12 Community Facilities District, are hereby authorized and directed to take such actions
13 as are required under the Purchase Contract and the Fiscal Agent Agreement to
14 complete all actions required to evidence the delivery of the Bonds upon the receipt of
15 the purchase price thereof from the Underwriter.
16 9. Actions. All actions heretofore taken by the officers and agents of the City
17 with respect to the establishment of the Community Facilities District and the sale and
18 issuance of the Bonds are hereby approved, confirmed and ratified, and the proper
19 officers of the City, acting for and on behalf of the Community Facilities District, are
20 hereby authorized and directed to do any and all things and take any and all actions and
21 execute any and all certificates, agreements, contracts, and other documents, which
22 they, or any of them, may deem necessary or advisable in order to consummate the
23 lawful issuance and delivery of the Bonds in accordance with the Act, this Resolution,
24 the Fiscal Agent Agreement, the Purchase Contract, the Continuing Disclosure
25 Certificate, and any certificate, agreement, contract, and other document described in
26 the documents herein approved.
27 10. Effective Date. This resolution shall take effect from and after its adoption.
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PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council
of the City of Carlsbad on the 15th day of January, 2008, by the following vote to wit:
AYES: Council Members Lewis, Kulchin, Hall, Packard and Nygaard.
NOES: None.
ABSENT: None.
ATTEST:
M. W00D, City
EXHIBIT #3
13061-14 JH:CKL:PJN 10/01/07
10/22/07
11/07/07
a, « 12/04/07
£ -° 12/13/07
S § 12/20/07
1 •= NEW ISSUE NOT RATED
.£• J2 /n toe opinion of Best Best & Krieger LLP, Bond Counsel, based on an analysis of existing laws, regulations, rulings and
^ " c court decisions, and assuming, among other matters, compliance with certain covenants, interest on the Bonds is excluded from
§° -|= gross income for federal income tax purposes under Section 103 of the Internal Revenue Code of 1986 and is exempt from State of
m >> =5 California personal income taxes. In the further opinion of Bond Counsel, interest on the Bonds is not a specific preference item for
a> -0 •" purposes of federal individual or corporate alternative minimum taxes, although Bond Counsel observes that such interest is
"5, ~ jr included in adjusted current earnings in calculating federal corporate alternative minimum taxable income. Bond Counsel expresses
.a ig ^ no opinion regarding any other federal or state income tax consequences relating to the ownership or disposition of, or the accrual
0 o <n or receipt of interest on, the Bonds. See "LEGAL MATTERS - Tax Matters."e § °
111 $18,340,000*
1 1 S CITY OF CARLSBAD
0 i | COMMUNITY FACILITIES DISTRICT NO. 3
1 %% 2008 SPECIAL TAX BONDS
| S I (IMPROVEMENT AREA 2)
|8«= B § Dated: Date of Delivery Due: September 1 , as shown below>* t~ r-ro (D o
^ *o 1o Authority for Issuance. The bonds captioned above (the "Bonds") are being issued under the Mello-Roos
H § s= Community Facilities Act of 1982 (the "Act" ), the Resolution of Issuance, and a Fiscal Agent Agreement, dated as of
=> •§ =. January 1, 2008, by and between the City of Carlsbad (the "City"), for and on behalf of City of Carlsbad Community
% fj 5 Facilities District No. 3, County of San Diego, State of California (the "Community Facilities District" or "District" ) with
% o § respect to its Improvement Area 2 and The Bank of New York Trust Company, N.A., as fiscal agent (the "Fiscal
" •£ H Agent" ). Improvement Area 2 is one of two improvement areas within the Community Facilities District. The City
! f Council (the "City Council") of the City, acting as the legislative body of the Community Facilities District, and the
g S. $> eligible landowner voters in Improvement Area 2, have authorized the issuance of bonds in an aggregate principal
E 55 o amount not to exceed $21 million. See "THE BONDS - Authority for Issuance."
S H .§£ £ Q. Security and Sources of Payment The Bonds are payable from: (i) Special Tax Revenues derived from
5 o 3 the levy of special taxes (the "Special Taxes") on property within Improvement Area 2 according to the rate and
g m* method of apportionment of special tax approved by the City Council and the eligible landowner voters in
|j -| § Improvement Area 2, and (ii) moneys deposited in certain funds held under the Fiscal Agent Agreement. See
f- f .8 "SECURITY FOR THE BONDS." Revenues derived from the levy of special taxes in Improvement Area 1 of the
o a~ 2 Community Facilities District are not available to pay debt service on the Bonds.
S'lit> = j> Additional Obligations Secured by Special Tax Revenues. The Fiscal Agent Agreement authorizes the
:§* •£ « issuance of additional bonds secured by a pledge of Special Tax Revenues solely for the purpose of refunding all or a
<" £ o part of the outstanding Bonds.JD o C
«8 C .9
j= in S Use of Proceeds. The Bonds are being issued to: (i) finance acquisition and construction of certain public
fe I = capital improvements, (ii) fund a reserve fund for the Bonds, (iii) pay certain administrative expenses of the
TI •§ ™ Community Facilities District, (iv) capitalize interest on the Bonds through September 1 , 2008, and (v) pay the costs
.i o s| of issuing the Bonds. See "FINANCING PLAN - Facilities to be Financed with Proceeds of the Bonds" and "-
fj JK .c Estimated Sources and Uses of Funds."
Ill§ -1 -g Bond Terms. Interest on the Bonds is payable on March 1 , 2008 and semiannually thereafter on each
S 1 1 March 1 and September 1. The Bonds will be issued in denominations of $5,000 or integral multiples of $5,000. The
o £• = Bonds, when delivered, will be initially registered in the name of Cede & Co., as nominee of The Depository Trust
!E 1 § Company ("DTC"), New York, New York. DTC will act as securities depository for the Bonds. See "THE BONDS -
5 c 1 General Bond Terms" and "APPENDIX F - DTC and the Book-Entry Only System."^ "~ ^-o <n
Redemption. Prior to their maturities, the Bonds are subject to optional redemption, mandatory sinking fund
~°
redemption, and special mandatory redemption from prepaid Special Taxes, and the Escrow Bonds are subject to
extraordinary mandatory redemption in the event the conditions for release of moneys from the Escrow Fund are not
5 ~ « met. See "THE BONDS - Redemption."w S -Bs E '§
ro 1 S ;.E jg £ " Preliminary, Subject to Change
.E o "5gj <u ^
« o> >.jc E cI— *^ 03
THE BONDS ARE LIMITED OBLIGATIONS OF THE CITY FOR AND ON BEHALF OF IMPROVEMENT
AREA 2 OF THE COMMUNITY FACILITIES DISTRICT, AND THE PRINCIPAL, PREMIUM, IF ANY, AND
INTEREST, ARE PAYABLE SOLELY FROM, AND SECURED IN ACCORDANCE WITH THEIR TERMS AND THE
PROVISIONS OF THE FISCAL AGENT AGREEMENT SOLELY BY, THE SPECIAL TAX REVENUES AND THE
OTHER AMOUNTS PLEDGED THEREFOR UNDER THE FISCAL AGENT AGREEMENT. NEITHER THE CITY,
THE STATE, NOR ANY POLITICAL SUBDIVISION THEREOF (EXCEPT THE CITY, TO THE LIMITED EXTENT
SET FORTH IN THE FISCAL AGENT AGREEMENT) WILL IN ANY EVENT BE LIABLE FOR THE PAYMENT OF
THE PRINCIPAL OF, OR PREMIUM (IF ANY) OR INTEREST ON THE BONDS OR FOR THE PERFORMANCE OF
ANY PLEDGE, OBLIGATION OR AGREEMENT OF ANY KIND WHATSOEVER, AND NONE OF THE BONDS OR
ANY OF THE CITY'S AGREEMENTS OR OBLIGATIONS WILL BE CONSTRUED TO CONSTITUTE AN
INDEBTEDNESS OF OR A PLEDGE OF THE FAITH AND CREDIT OF OR A LOAN OF THE CREDIT OF THE
CITY, THE STATE OR ANY POLITICAL SUBDIVISION THEREOF (EXCEPT THE CITY, TO THE LIMITED
EXTENT SET FORTH IN THE FISCAL AGENT AGREEMENT) WITHIN THE MEANING OF ANY
CONSTITUTIONAL OR STATUTORY PROVISION WHATSOEVER.
MATURITY SCHEDULE
(see Inside cover)
This cover page contains certain information for quick reference only. It is not a summary of the
issue. Potential investors must read the entire Official Statement to obtain information essential to the
making of an informed investment decision with respect to the Bonds. Investment in the Bonds involves
risks which may not be appropriate for some investors. See "BONDOWNERS" RISKS" for a discussion of
special risk factors that should be considered in evaluating the investment quality of the Bonds.
The Bonds are offered when, as and if issued and accepted by the Underwriter, subject to approval as to
their legality by Best Best & Krieger LLP, San Diego, California, Bond Counsel, and subject to certain other
conditions. Jones Hall, A Professional Law Corporation, San Francisco, California, is acting as disclosure counsel to
the City. Certain legal matters will be passed on for the City and the Community Facilities District by the City
Attorney. It is anticipated that the Bonds, in book-entry form, will be available for delivery on or about ,
2008.
The date of this Official Statement is: , 2008.
/7
MATURITY SCHEDULE
(BaseCUSIP:t )
$ Serial Bonds
Maturity
(September 1)
Principal
Amount
Interest
Rate
Price/
Yield
Maturity
(September 1)
Principal
Amount
Interest
Rate
Price/
Yield CUSIPT
$_
$_
$_
$_
_% Term Bond due September 1, 20_
_% Term Bond due September 1, 20_
Priced to Yield:.
Priced to Yield:.
Priced to Yield:_% Term Bond* due September 1, 20.
_% Term Bond* due September 1, 20 , Priced to Yield:
_% CUSIpt No..
_% CUSIP"!" No..
_% CUStpt No..
% CUSIpt No.
Copyright 2008, American Bankers Association. CUSIP data herein is provided by Standard & Poor's CUSIP Service
Bureau, a division of The McGraw-Hill Companies, Inc.
Indicates Bonds that are Escrow Bonds.
CITY OF CARLSBAD
CITY COUNCIL
Claude A. "Bud" Lewis, Mayor
Ann J. Kulchin, Mayor Pro Tern, Council Member
Matt Hall, Council Member
Mark Packard, Council Member
Julie Nygaard, Council Member
CITY STAFF
Lisa Hildabrand, Acting City Manager
James F. Elliott, Administrative Services Director/Deputy City Manager
Glenn Pruim, Public Works Director
Harold "Mac" McSherry, City Treasurer
Lisa Irvine, Finance Director
Lorraine Wood, City Clerk
Ronald R. Ball, City Attorney
PROFESSIONAL SERVICES
BOND COUNSEL
Best Best & Krieger LLP
San Diego, California
DISCLOSURE COUNSEL
Jones Hall, A Professional Law Corporation
San Francisco, California
SPECIAL TAX CONSULTANT
Special District Financing and Administration
Escondido, California
FISCAL AGENT
The Bank of New York Trust Company, N.A.
Los Angeles, California
APPRAISER
Bruce W. Hull & Associates, Inc.
Ventura, California
MARKET ABSORPTION ANALYST
Empire Economics
Capistrano Beach, California
GENERAL INFORMATION ABOUT THIS OFFICIAL STATEMENT
No Offering May Be Made Except by this Official Statement No dealer, broker, salesperson or other
person has been authorized by the City or the Underwriter to give any information or to make any representations
with respect to the Bonds other than as contained in this Official Statement, and if given or made, such other
information or representation must not be relied upon as having been authorized by the City or the Underwriter.
No Unlawful Offers or Solicitations. This Official Statement does not constitute an offer to sell or the
solicitation of an offer to buy in any state in which such offer or solicitation is not authorized or in which the person
making such offer or solicitation is not qualified to do so or to any person to whom it is unlawful to make such offer or
solicitation.
Effective Date. This Official Statement speaks only as of its date, and the information and expressions of
opinion contained in this Official Statement are subject to change without notice. Neither the delivery of this Official
Statement nor any sale of the Bonds will, under any circumstances, create any implication that there has been no
change in the affairs of the City, the Community Facilities District, or any other parties described in this Official
Statement, or in the condition of property within Improvement Area 2 of the Community Facilities District since the
date of this Official Statement.
Use of this Official Statement This Official Statement is submitted in connection with the sale of the
Bonds referred to herein and may not be reproduced or used, in whole or in part, for any other purpose. This Official
Statement is not a contract with the purchasers of the Bonds.
Preparation of this Official Statement The information contained in this Official Statement has been
obtained from sources that are believed to be reliable, but this information is not guaranteed as to accuracy or
completeness.
The Underwriter has provided the following sentence for inclusion in this Official Statement: The
Underwriter has reviewed the information in this Official Statement in accordance with, and as part of, its
responsibilities to investors under the federal securities laws as applied to the facts and circumstances of this
transaction, but the Underwriter does not guarantee the accuracy or completeness of such information.
Document References and Summaries. All references to and summaries of the Fiscal Agent Agreement
or other documents contained in this Official Statement are subject to the provisions of those documents and do not
purport to be complete statements of those documents.
Stabilization of and Changes to Offering Prices. The Underwriter may overallot or take other steps that
stabilize or maintain the market price of the Bonds at a level above that which might otherwise prevail in the open
market. If commenced, the Underwriter may discontinue such market stabilization at any time. The Underwriter may
offer and sell the Bonds to certain dealers, dealer banks and banks acting as agent at prices lower than the public
offering prices stated on the cover page of this Official Statement, and those public offering prices may be changed
from time to time by the Underwriter.
Bonds are Exempt from Securities Laws Registration. The issuance and sale of the Bonds have not
been registered under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended,
in reliance upon exemptions for the issuance and sale of municipal securities provided under Section 3(a)(2) of the
Securities Act of 1933 and Section 3(a)(12) of the Securities Exchange Act of 1934.
Estimates and Projections. Certain statements included or incorporated by reference in this Official
Statement constitute "forward-looking statements" within the meaning of the United States Private Securities
Litigation Reform Act of 1995, Section 21E of the United States Securities Exchange Act of 1934, as amended, and
Section 27A of the United States Securities Act of 1933, as amended. Such statements are generally identifiable by
the terminology used such as "plan," "expect," "estimate," "budget" or other similar words.
THE ACHIEVEMENT OF CERTAIN RESULTS OR OTHER EXPECTATIONS CONTAINED IN SUCH FORWARD-
LOOKING STATEMENTS INVOLVE KNOWN AND UNKNOWN RISKS, UNCERTAINTIES AND OTHER FACTORS
WHICH MAY CAUSE ACTUAL RESULTS, PERFORMANCE OR ACHIEVEMENTS DESCRIBED TO BE
MATERIALLY DIFFERENT FROM ANY FUTURE RESULTS, PERFORMANCE OR ACHIEVEMENTS EXPRESSED
OR IMPLIED BY SUCH FORWARD-LOOKING STATEMENTS. THE CITY DOES NOT PLAN TO ISSUE ANY
UPDATES OR REVISIONS TO THOSE FORWARD-LOOKING STATEMENTS IF OR WHEN ANY EXPECTATIONS,
OR EVENTS, CONDITIONS OR CIRCUMSTANCES ON WHICH SUCH STATEMENTS ARE BASED OCCUR.
20
TABLE OF CONTENTS
INTRODUCTION 1
Continuing Disclosure 6
FINANCING PLAN 8
Facilities to be Financed with Proceeds
of the Bonds 8
Estimated Sources and Uses of Funds 9
THE BONDS 10
General Bond Terms 10
Authority for Issuance 11
Redemption 12
Registration, Transfer and Exchange 14
Debt Service Schedule 16
SECURITY FOR THE BONDS 17
General 17
Special Taxes 17
Additional Obligations Secured by
Special Taxes 18
Rate and Method 18
Covenant to Foreclose 20
Special Tax Fund 21
Bond Fund 22
Reserve Fund 22
Escrow Fund 22
Limited Obligation 23
No Acceleration ...23
THE CITY 23
IMPROVEMENT AREA 2 26
General 26
Entitlements 26
Environmental Conditions 28
Infrastructure Development 34
Direct and Overlapping Governmental
Obligations 35
Market Absorption Study 37
Appraised Property Value 38
Appraised Value to Burden Ratio 40
PROPERTY OWNERSHIP AND
PROPOSED DEVELOPMENT 41
Property Ownership 41
Page
Proposed Development by Techbilt
Construction 41
Proposed Development by Kilroy 45
BOND OWNERS' RISKS 47
Limited Obligation of the City to Pay
Debt Service 47
Levy and Collection of the Special Tax 47
Payment of Special Tax is not a
Personal Obligation of Property Owners 48
Appraised Values 48
Property Values and Property
Development 48
Water Availability 51
Concentration of Property Ownership 51
Other Possible Claims Upon the Value
of Taxable Property 52
Exempt Properties 53
Depletion of Reserve Fund 53
Bankruptcy and Foreclosure Delays 53
Disclosure to Future Purchasers 55
No Acceleration Provisions 56
Extraordinary Mandatory Redemption of
Escrow Bonds 56
Loss of Tax Exemption 56
Voter Initiatives 56
Limitations on Remedies 57
Factors Relating to Sub-Prime Loans 57
Absence of Secondary Market for the
Bonds 58
LEGAL MATTERS 58
Legal Opinions 58
Tax Matters 58
No Litigation 59
CONCLUDING INFORMATION 60
No Ratings 60
Underwriting 60
Professional Fees 60
APPENDIX A - General Information About the City of Carlsbad and County of San Diego
APPENDIX B - Rate and Method of Apportionment of Special Tax
APPENDIX C - The Appraisal
APPENDIX D - Market Absorption Study Summary and Conclusions
APPENDIX E - Summary of Fiscal Agent Agreement
APPENDIX F - DTC and the Book-Entry Only System
APPENDIX G - Form of Issuer Continuing Disclosure Certificate
APPENDIX H - Form of Property Owner Continuing Disclosure Certificate
APPENDIX I - Form of Opinion of Bond Counsel
APPENDIX J - Boundary Map of Improvement Area 2 and Community Facilities District
[INSERT REGIONAL MAP]
OFFICIAL STATEMENT
$18,340,000*
CITY OF CARLSBAD
COMMUNITY FACILITIES DISTRICT NO. 3
2008 SPECIAL TAX BONDS
(IMPROVEMENT AREA 2)
INTRODUCTION
This introduction is not a summary of this Official Statement. It is only a brief description
of and guide to, and is qualified by, more complete and detailed information contained in the
entire Official Statement, including the cover page and attached appendices, and the
documents summarized or described in this Official Statement. A full review should be made of
the entire Official Statement.
This Official Statement, including the cover page and attached appendices, is provided
to furnish information regarding the bonds captioned above (the "Bonds") to be issued by the
City of Carlsbad (the "City") for and on behalf of the City of Carlsbad Community Facilities
District No. 3, County of San Diego (the "County"), State of California (the "Community
Facilities District") with respect to its Improvement Area 2 ("Improvement Area 2").
Improvement Area 2 is one of two improvement areas within the Community Facilities District.
The City. The City of Carlsbad (the "City") is located approximately 35 miles north of
the City of San Diego on the southern California coast. The City is a general law city
incorporated in 1952. The City covers approximately 42 square miles. The City has a current
estimated population of 95,146. See "APPENDIX A - General Information About The City of
Carlsbad and County of San Diego."
The Community Facilities District and Improvement Area 2. The Community
Facilities District (including Improvement Area 1 and Improvement Area 2 within the Community
Facilities District) was established by the City Council of the City (the "City Council"), acting as
legislative body of the Community Facilities District, under the Mello-Roos Community Facilities
Act of 1982, as amended (the "Act"), pursuant to a resolution adopted on November 8, 2005 by
the City Council following a public hearing, and a landowner election held on November 8, 2005
at which the then-qualified electors of the Community Facilities District authorized the
Community Facilities District to incur bonded indebtedness and approved the levy of special
taxes. See "THE BONDS - Authority for Issuance."
Improvement Area 2 consists of 413.9 gross acres of which 167.13 taxable acres are
designated for development by the property owners with approximately 2,004,800 square feet of
industrial, research and development, office and corporate office buildings on 23 lots. Another 4
lots comprising approximately 220.26 gross acres are set aside for open space and public
utilities. The proposed development is commonly referred to as Carlsbad Oaks North Business
' Preliminary, Subject to Change.
Park ("Carlsbad Oaks North"). Improvement Area 2 was formed to finance the acquisition and
construction of certain public capital improvements necessary for development of Carlsbad
Oaks North.
The Bonds are payable from and secured by Special Tax Revenues (defined
below), which are derived from the levy of Special Taxes (defined below) in Improvement
Area 2 only; special taxes that may be levied in Improvement Area 1 of the Community
Facilities District, and proceeds of any foreclosure sales of property in Improvement
Area 1, will not be available to pay debt service on the Bonds. See "Security and
Sources of Payment for the Bonds" below.
Authority for Issuance of the Bonds. The Bonds are issued pursuant to the following
(see "THE BONDS - Authority for Issuance"):
• The Act.
• Certain resolutions adopted by the City Council, acting as the legislative body of the
Community Facilities District, including the Resolution of Issuance adopted on
_, 2008 (the "Resolution of Issuance").
• A Fiscal Agent Agreement, dated as of January 1, 2008 (the "Fiscal Agent
Agreement"), by and between the City, for and on behalf of the Community Facilities
District, and The Bank of New York Trust Company, N.A., as fiscal agent (the "Fiscal
Agent").
The City Council, acting as the legislative body of the Community Facilities District and
the eligible landowner voters in Improvement Area 2 have authorized the issuance of not to
exceed $21 million of bonded indebtedness in Improvement Area 2.
Purpose of the Bonds. Proceeds of the Bonds will be used primarily to finance the
acquisition and construction of certain public capital improvements to be owned and operated
by the City that are necessary for the development of Improvement Area 2. Bond proceeds will
also be used to pay for interest on the Bonds through September 1, 2008, fund a reserve fund
for the Bonds, pay certain costs of administering the Bonds, and pay the costs of issuing the
Bonds. See "FINANCING PLAN - Facilities to be Financed with Proceeds of the Bonds" and "-
Estimated Sources and Uses of Funds."
Escrow Bonds. Proceeds of the bonds designated in the Maturity Schedule on the
inside cover of this Official Statement as "Escrow Bonds" (the "Escrow Bonds") will be
deposited into an Escrow Fund to be held by the Fiscal Agent under the Fiscal Agent
Agreement. The Fiscal Agent Agreement provides for the transfer of funds from the Escrow
Fund to the Improvement Fund and the Reserve Fund not more often than once each 12-month
period (each, an "Escrow Release Date"), subject to satisfaction of certain "Escrow Release
Tests." If the Escrow Release Tests have not been met prior to September 1, 2010 or such
later date identified by the City (the "Escrow Redemption Date"), moneys in the Escrow Fund
will be transferred to the Interest Account and the Principal Account for the purpose of
redeeming the Escrow Bonds on the Escrow Redemption Date. See "SECURITY FOR THE
BONDS - Escrow Fund" and "APPENDIX E - Summary of Fiscal Agent Agreement."
Security and Sources of Payment for the Bonds. Pursuant to the Fiscal Agent
Agreement, the Bonds are secured by and payable from the following:
• Funds Established Under the Fiscal Agent Agreement. Moneys in the Bond
Fund, the Reserve Fund and the Special Tax Fund are pledged to the repayment
of the Bonds. Moneys in the Administrative Expense Fund, the Improvement
Fund (including any accounts therein) and the Costs of Issuance Fund are not
pledged to the repayment of the Bonds.
• Special Tax Revenues. The Fiscal Agent Agreement defines "Special Tax
Revenues" as proceeds of the special taxes levied within Improvement Area 2
("Special Taxes"), including any scheduled payments and any prepayments,
related interest and penalties, and proceeds of the redemption or sale of property
sold as a result of foreclosure of the lien of the Special Taxes to the amount of
the Special Tax lien, interest and penalties.
The Special Taxes will be levied within Improvement Area 2 in accordance with the City
of Carlsbad Community Facilities District No. 3 Improvement Area No. 2 Rate and Method of
Apportionment of Special Tax (the "Rate and Method"). See "SECURITY FOR THE BONDS -
Rate and Method." Special Tax Revenues do not include proceeds of special taxes that
may be levied within Improvement Area 1, nor may real property within Improvement
Area 1 be foreclosed upon in the event property owners in Improvement Area 2 are
delinquent in the payment of Special Taxes.
The Facilities (defined in "FINANCING PLAN - Facilities to be Financed with Proceeds of
the Bonds" below) financed with proceeds of the Bonds are not in any way pledged as security
for the Bonds.
The City has covenanted in the Fiscal Agent Agreement to cause foreclosure
proceedings to be commenced and prosecuted against certain parcels with delinquent
installments of the Special Tax. For a more detailed description of the foreclosure covenant,
see "SECURITY FOR THE BONDS - Covenant to Foreclose."
Additional Obligations Payable From Special Tax Revenues. The Fiscal Agent
Agreement authorizes the City to issue bonds secured by a pledge of Special Tax Revenues
solely for the purpose of refunding all or a portion of the outstanding Bonds. See "SECURITY
FOR THE BONDS - Additional Obligations Secured by Special Taxes."
Property Ownership and Proposed Development. The taxable property within
Improvement Area 2 was all initially owned by two related legal entities, namely Techbilt
Construction Corp. ("Techbilt Construction") and Carlsbad Oaks North Partners, L.P.
("CONP"). Techbilt Construction and CONP are both part of the Techbilt Companies and are
owned by the same individuals.
Techbilt Construction's long term plan is a combination of selling finished lots to other
builders, constructing and selling buildings directly to end users, and constructing buildings and
subsequently leasing them to end users. The development is presently proceeding in three
separate phases. Consistent with this plan, on February 16, 2007, Techbilt Construction sold a
portion of the completed lots it owned in Phase 1 (approximately 31.99 taxable acres) to Kilroy
Realty Finance Partnership, L.P. ("Kilroy"; collectively with Techbilt Construction and CONP,
the "Property Owners"). Kilroy is proceeding with development plans to build and lease office
buildings.
Techbilt Construction presently owns the remaining lots in Phase 1 not sold to Kilroy,
and all of Phase 2. Techbilt Construction also has an option to purchase Phase 3 from CONP,
which Techbilt Construction expects to exercise when property in Phase 3 is ready for grading
(estimated September 2008).
The taxable property within Improvement Area 2 is currently owned according to the
following table:
Property
Owner
Techbilt Construction
Kilroy
CONP
Lots Owned <1)(2)
1-3,6,13-19
4, 5, 7 and 8
20-27
Carlsbad Oaks
North Phase
Phases 1 and 2
Phase 1
Phase 3
Taxable
Acres (3)
81.14
31.99
54.00
Net Saleable
Acres (4)
73.9
25.8
49.9
Potential
Development (5)
1,02 1,200 square feet
288,000 square feet
695,600 square feet
Totals 23 167.13 149.6 2,004,800 square feet
(1) Final maps for lots 1-19 have been finalized and approved by the City. Techbilt Construction projects the final map for lots
20-27 will record in August 2008.
(2) Does not include Lots 9-12, which were permanently reserved as open space and public utility.
(3) Taxable Acres," as that term is used in this Official Statement, is defined as the "Acreage" of 'Taxable Property" as those
terms are defined in the Rate and Method. In general, with respect to property for which a final subdivision map has been
recorded, the Rate and Method defines "Acreage" as the acreage shown on or determined from the applicable final map for
each assessor's parcel. The Rate and Method establishes a minimum of 150.7 Acres of Taxable Property.
(4) The Appraisal values the price per square foot of the "net saleable area" or "net acres," which the Appraisal defines as the
gross area of the property less: (i) any portion of the property dedicated for public infrastructure such as streets, gutters,
sidewalks and curbs, except to the extent that such dedications satisfy code-mandated setback requirements, (ii) areas
within the gross lot represented by recorded easements, CC&R restrictions or rights-of-way that prohibit construction of
improvements thereupon, except to the extent that such dedications satisfy code-mandated setback, and (iii) open-space
lots.
(5) For Techbilt Construction/CONP, listed in total square feet of theoretical building size, based on entitled use. For Kilroy
based on Kilroy's current development plan. It should be noted that the Market Absorption Study described below assumed
the theoretical building size provided by Techbilt Construction for all of the lots in Improvement Area 2, including the Kilroy
property. However, Kilroy's current development plan calls for development of approximately 82,700 square feet less than
the theoretical building size provided by Techbilt Construction.
Source: Techbilt Construction and Special District Financing and Administration.
For detailed information about the Property Owners, current land uses and proposed
development plans for the property in Improvement Area 2, see "PROPERTY OWNERSHIP
AND PROPOSED DEVELOPMENT." No assurance can be given that development will occur
as expected by the Property Owners.
Redemption of Bonds Before Maturity. Prior to their maturities, the Bonds are subject
to optional redemption, mandatory sinking fund redemption, and special mandatory redemption
from prepaid Special Taxes, and the Escrow Bonds are subject to extraordinary mandatory
redemption in the event the Escrow Release Tests are not met. See "THE BONDS -
Redemption."
Appraisal. An appraisal of the Taxable Property (as defined in the Rate and Method)
within Improvement Area 2 dated November 19, 2007 (the "Appraisal") was prepared by Bruce
Hull & Associates, Inc., Ventura, California (the "Appraiser") in connection with issuance of the
Bonds. The purpose of the appraisal was to ascertain the market value of the fee simple estate
of the Taxable Property in Improvement Area 2 as of November 10, 2007.
See "IMPROVEMENT AREA 2 - Appraised Property Value" and "APPENDIX C - The
Appraisal" for further information about the Appraisal. The City makes no representation as to
the accuracy or completeness of the Appraisal.
Market Absorption Study. Empire Economics, Inc., Capistrano Beach, California (the
"Market Consultant"), prepared a report entitled "Market Absorption Study," dated September
14, 2007 (the "Market Absorption Study"), to estimate the projected market absorption of the
industrial, research and development and office space proposed to be constructed in
Improvement Area 2. The Market Absorption Study's conclusions are summarized in
"IMPROVEMENT AREA 2 - Market Absorption Study" and in "APPENDIX D - Market Absorption
Study Summary and Conclusions."
The Market Absorption Study reports that the Market Consultant's absorption schedule
anticipates approximately 86% build-out by 2016 while Techbilt Construction projects reaching
full build-out at the end of 2012. The Market Consultant concludes the difference can be
attributed to the Market Consultant (i) forecasting lower economic growth and hence lower
demand for industrial-office buildings and (ii) considering all of the nearby business parks in the
aggregate, as they compete with each other in the marketplace.
The Appraisal considered the conclusions of the Market Absorption Study; however, the
Appraisal values the taxable property in Improvement Area 2 as finished lots, while the Market
Consultant estimated the absorption period to occupancy. See "IMPROVEMENT AREA 2 -
Market Absorption Study" and "APPENDIX D - Market Absorption Study Summary and
Conclusions" for further information about the Market Absorption Study. The City makes no
representation as to the accuracy or completeness of the Market Absorption Study.
Risk Factors Associated with Purchasing the Bonds. Investment in the Bonds
involves risks that may not be appropriate for some investors. See "BOND OWNERS' RISKS"
for a discussion of certain risk factors which should be considered, in addition to the other
matters set forth in this Official Statement, in considering the investment quality of the Bonds.
Professionals Involved in the Offering. The following professionals are participating
in this financing:
• Best Best & Krieger LLP, San Diego, California, is serving as Bond Counsel to
the City.
• Jones Hall, A Professional Law Corporation, San Francisco, California, is acting
as Disclosure Counsel to the City.
• The Bank of New York Trust Company, N.A., Los Angeles, California, will serve
as the paying agent, registrar, authentication and transfer agent for the Bonds
and will perform the functions required of it under the Fiscal Agent Agreement.
• Bruce Hull & Associates, Inc., Ventura, California, prepared the Appraisal.
• Empire Economics, Inc., Capistrano Beach, California, prepared the Market
Absorption Study.
• Special District Financing and Administration, of Escondido, California, acted as
special tax consultant to the City and will act as initial administrator to the City in
connection with annual Special Tax levies, and as dissemination agent for the
City under the Issuer Continuing Disclosure Certificate described below.
Continuing Disclosure
The City, for and on behalf of the Community Facilities District. The City will
covenant, for and on behalf of the Community Facilities District, in a continuing disclosure
certificate, the form of which is set forth in "APPENDIX G - Form of Issuer Disclosure Certificate"
(the "Issuer Continuing Disclosure Certificate"), for the benefit of holders and beneficial
owners of the Bonds, to provide certain financial information and operating data relating to
Improvement Area 2 and the Bonds (the "Issuer Annual Report") by not later than nine months
after the end of the City's Fiscal Year, resulting in a deadline of March 31 of each year,
beginning with an initial deadline of March 31, 2008 (provided the fiscal year 2006-07 report
may consist of the Official Statement and the City's fiscal year 2006-07 audited financial
statements). The Issuer Continuing Disclosure Certificate also requires the City to provide
notices of the occurrence of certain enumerated events, if material. The initial Dissemination
Agent under the Issuer Continuing Disclosure Certificate will be Special District Financing and
Administration.
The covenants of the City in the Issuer Continuing Disclosure Certificate will be made in
order to assist the Underwriter in complying with Securities and Exchange Commission Rule
15c2-12(b)(5) (the "Rule").
A default under the Issuer Continuing Disclosure Certificate will not, in itself, constitute
an Event of Default under the Fiscal Agent Agreement, and the sole remedy under the Issuer
Continuing Disclosure Certificate in the event of any failure of the City or the Dissemination
Agent to comply will be an action to compel specific performance.
The City has never failed to comply, in any material respect, with an undertaking under
the Rule.
Property Owners. Techbilt Construction will covenant on behalf of itself and CONP, in
a continuing disclosure certificate, the form of which is set forth in "APPENDIX H - Form of
Property Owner Continuing Disclosure Certificate" (the "Property Owner Continuing
Disclosure Certificate"), for the benefit of holders and beneficial owners of the Bonds, to
provide certain information relating to itself and the parcels it owns within Improvement Area 2
on a semi-annual basis (each a "Property Owner Semi-Annual Report"), and to provide
notices of the occurrence of certain enumerated events. Techbilt Construction may serve as
dissemination agent under its own Property Owner Continuing Disclosure Certificate, although
Special District Financing and Administration will act as the initial dissemination agent.
In addition, Kilroy will covenant in a separate Property Owner Continuing Disclosure
Certificate for the benefit of holders and beneficial owners of the Bonds, to provide certain
information relating to itself and the parcels it owns within Improvement Area 2 in Property
Owner Semi-Annual Reports, and to provide notice of the occurrence of certain enumerated
events. Kilroy may serve as dissemination agent under its own Property Owner Continuing
Disclosure Certificate, although Special District Financing and Administration will act as the
initial dissemination agent.
The obligations of Techbilt Construction and Kilroy under their respective Property
Owner Continuing Disclosure Certificates will terminate on the earlier of: (i) legal defeasance,
prior redemption or payment in full of all the Bonds; (ii) at such time as property owned by the
Property Owner is no longer responsible for payment of 10% or more of the Special Taxes;
(iii) the date on which the Property Owner prepays in full all of the Special Taxes attributable to
its property in Improvement Area 2; or (iv) the date on which (A) the Property Owner's property
in Improvement Area 2 is responsible for between 10% and 25% of the annual Special Tax levy,
(B) the Property Owner has completed construction of all buildings to be constructed within
property it owns in Improvement Area 2 and (C) each such building constructed by the Property
Owner and intended for lease by the Property Owner has been, since completion of
construction, at least 80% occupied at one time or another.
A default under the Property Owner Continuing Disclosure Certificate will not, in itself,
constitute an Event of Default under the Fiscal Agent Agreement, and the sole remedy under a
Property Owner Continuing Disclosure Certificate in the event of any failure of the respective
Property Owner or the Dissemination Agent to comply will be an action to compel specific
performance. The City has no obligation to enforce the continuing disclosure undertaking of any
Property Owner.
Techbilt Construction has never previously undertaken a continuing disclosure
obligation.
Authorized representatives of Kilroy have represented that Kilroy has never failed to
comply with previous undertakings to provide periodic continuing disclosure reports or notices of
material events within the last five years.
FINANCING PLAN
Facilities to be Financed with Proceeds of the Bonds
Pursuant to the Resolution of Formation adopted by the City Council of the City, acting
as legislative body for the Community Facilities District, on November 8, 2005, the Community
Facilities District is authorized to finance a variety of public capital improvements (the "Project"),
including the following, all of which will be acquired by the City upon completion of construction:
1. Improvement A: widening of Palomar Airport Road from West of Melrose Drive
Intersection to City of Vista limits (were financed with the proceeds of bonds
issued for Improvement Area 1 only).
2. Improvement B: improvement of Faraday Avenue from Orion Street to Melrose
Drive.
3. Improvement C: improvement of Melrose Drive from Palomar Airport Road to
City of Vista limits.
4. Improvement D: construction of Melrose Drive right turn lane south of Palomar
Airport Road. The City anticipates that approximately one-third of the costs of
Improvement D will be paid from proceeds of the bonds issued for Improvement
Area 2 and from the contribution of Techbilt Construction and CONP. The
remaining costs are being funded with proceeds of bonds issued for
Improvement Area 1.
5. Improvement E: improvement of El Fuerte Street from northerly terminus to the
future extension of Faraday Avenue (to be financed with the proceeds of the
bonds Issued for Improvement Area 2 only (see below)).
6. Improvement F: construction of eastbound right turn lane on Palomar Airport
Road onto Melrose Drive south of Palomar Airport Road (to be financed with the
proceeds of bonds issued for Improvement Area 1 only).
The City expects the Facilities described above as Improvements B, C, D, and E will be
financed, in part, by proceeds of the bonds issued for Improvement Area 2 and, in part, by
proceeds of bonds issued for Improvement Area 1 of the Community Facilities District.
Proceeds of the Improvement Area 2 Bonds will be used to acquire the improvements described
above after they are built by Techbilt Construction. The Facilities described in Improvement A
and F above were financed solely from the proceeds of bonds issued for Improvement Area 1 of
the Community Facilities District.
Estimated Sources and Uses of Funds
The estimated proceeds from the sale of the Bonds, as indicated below, will be
deposited into the following funds established under the Fiscal Agent Agreement, as described
below:
SOURCES
Principal Amount of Bonds
Less: Original Issue Discount
Less: Underwriter's Discount
Total Sources
USES
Deposit into Reserve Fund (1)
Deposit into Costs of Issuance Fund (2)
Deposit into Administrative Expense Fund (3)
Deposit into Improvement Fund
Deposit into Capitalized Interest Sub-account (4)
Deposit into Escrow Interest Account
Deposit into Escrow Holding Account
Total Uses
(1) Equal to the Reserve Requirement with respect to the Bonds as of their date of delivery.
(2) Includes, among other things, the fees and expenses of Bond Counsel and Disclosure Counsel, the cost of printing the
Preliminary and final Official Statements, fees and expenses of the Fiscal Agent, the cost of the Appraisal and the Market
Absorption Study, and the fees of the Special Tax Consultant.
(3) To pay initial costs of administering the Bond program.
(4) Amounts deposited into the Capitalized Interest Sub-account of the Interest Account of the Bond Fund will be used to pay
interest on the Bonds through September 1, 2008.
THE BONDS
General Bond Terms
Dated Date, Maturity and Authorized Denominations. The Bonds will be dated their
date of delivery and will mature in the amounts and on the dates set forth on the inside of the
cover page of this Official Statement. The Bonds will be issued in fully registered, book-entry
only form, in denominations of $5,000 each or any integral multiple of $5,000.
Interest The Bonds will bear interest at the annual rates set forth on the cover page of
this Official Statement, payable semiannually on each March 1 and September 1, commencing
March 1, 2008 (each, an "Interest Payment Date"). Interest will be calculated on the basis of a
360-day year composed of twelve 30-day months.
DTC and Book-Entry Only System. DTC will act as securities depository for the
Bonds. The Bonds will be issued as fully-registered securities registered initially in the name of
Cede & Co. (DTC's partnership nominee). See "APPENDIX F - DTC and the Book-Entry Only
System." References in this Official Statement to the owners or holders of the Bonds means
DTC, and not the beneficial owners of the Bonds.
Payments of Interest and Principal. For so long as DTC is used as depository for the
Bonds, principal, premium, if any, and interest payments on the Bonds will be made solely to
DTC or its nominee, Cede & Co., as registered owner of the Bonds, for distribution to the
beneficial owners of the Bonds in accordance with the procedures adopted by DTC.
Each Bond will bear interest from the Interest Payment Date next preceding the date of
authentication unless: (i) it is authenticated on an Interest Payment Date, in which event it will
bear interest from the date of authentication; or (ii) it is authenticated prior to an Interest
Payment Date and after the close of business on the Record Date preceding such Interest
Payment Date, in which event it will bear interest from such Interest Payment Date; or (iii) it is
authenticated prior to the Record Date preceding the first Interest Payment Date, in which event
it will bear interest from the Closing Date; provided, however, that if at the time of authentication
of a Bond, interest is in default thereon, such Bond will bear interest from the Interest Payment
Date to which interest has previously been paid or made available for payment thereon.
During any period in which the Bonds are not subject to DTC's book-entry system,
interest on the Bonds (including the final interest payment upon maturity or earlier redemption)
will be payable by check of the Fiscal Agent mailed on the Interest Payment Dates by first class
mail to the registered Owners thereof at the registered Owners' address as they appear on the
registration books maintained by the Fiscal Agent at the close of business on the Record Date
preceding the Interest Payment Date, or by wire transfer to an account within the United States
made on such Interest Payment Date upon written instructions of any Owner of $1,000,000 or
more in aggregate principal amount of Bonds received before the applicable Record Date. The
principal of the Bonds and any premium on the Bonds will be payable by check in lawful money
of the United States of America upon surrender of the Bonds at the principal office of the Fiscal
Agent.
10
Authority for Issuance
Community Facilities District Proceedings. The Bonds are issued pursuant to the
Act, the Resolution of Issuance and the Fiscal Agent Agreement. As required by the Act, the
City Council of the City has taken the following actions with respect to establishing the
Community Facilities District and authorizing issuance of the Bonds:
Resolutions of Intention: On October 4, 2005 the City Council adopted
Resolution No. 2005-301 stating its intention to establish the Community Facilities
District, including Improvement Area 2, and to authorize the levy of a special tax in the
Community Facilities District, including Improvement Area 2 (the "Resolution of
Intention"). On October 4, 2005, the City Council adopted Resolution No. 2005-302
stating its intention to incur bonded indebtedness in the Community Facilities District,
including an amount not to exceed $21 million in Improvement Area 2.
Resolution of Formation: Following a noticed public hearing on November 8,
2005, the City Council, acting as legislative body of the Community Facilities District,
adopted on November 8, 2005 Resolution No. 2005-329 (the "Resolution of
Formation"), which established the Community Facilities District, including Improvement
Area 2, and authorized the levy of a special tax within the Community Facilities District.
Resolution of Necessity: On November 8, 2005, the City Council adopted
Resolution No. 2005-330, declaring the necessity to incur bonded indebtedness in an
aggregate amount not to exceed $21 million within Improvement Area 2.
Landowner Election and Declaration of Results: On November 8, 2005, an
election was held within each improvement area of the Community Facilities District in
which the then-qualified electors within Improvement Area 2 approved a ballot
proposition authorizing the improvement area to incur bonded indebtedness, including
an amount not to exceed $21 million in Improvement Area 2, to finance the acquisition
and construction of the Project, the levy of a special tax and the establishment of an
appropriations limit for the improvement area. On November 8, 2005, the City Council
adopted Resolution No. 2005-331 pursuant to which the City Council, acting as the
legislative body of the Community Facilities District, approved the canvass of the votes
and declared each improvement area to be fully formed with the authority to levy Special
Taxes, to incur bonded indebtedness and to have its respective appropriations limit.
Special Tax Lien and Lew: A Notice of Special Tax Lien encumbering property
in Improvement Area 2 was recorded in the real property records of the County on
November 17, 2005 as Document No. 2005-0998003.
Ordinance Levying Special Taxes: On November 15, 2005, the City Council,
acting as legislative body for the Community Facilities District, adopted Ordinance No.
NS-777 levying the Special Tax within Improvement Area 2 beginning with the 2006-07
Fiscal Year (the "Ordinance").
Resolution Authorizing Issuance of the Bonds: On , 2008, the City
Council, acting as legislative body for the Community Facilities District, adopted
Resolution No. 2008- approving issuance of the Bonds.
City's Goals and Policies. As required by the Act, the City adopted a "local goals and
policies" pursuant to Council Policy Statement No. 33 ("Policy Statement 33"), effective
December 17, 2002. The City has determined that issuance of the Bonds conforms with Policy
Statement 33.
Redemption
Optional Redemption. The Bonds, including the Escrow Bonds, are subject to optional
call and redemption prior to maturity, as a whole or in part, pro rata among maturities and by lot
within a maturity, on any Interest Payment Date on or after September 1, 20 from funds
derived by the Community Facilities District from any source at a redemption price (expressed
as a percentage of the principal amount of the Bonds to be redeemed) as set forth below,
together with accrued interest to the redemption date:
Redemption Dates Redemption Prices
September 1, 20 through March 1, 20 10_%
September 1, 20 through March 1, 20 10_
September 1, 20 through March 1, 20 10_
September 1, 20 and any Interest Payment Date thereafter 100
Mandatory Sinking Fund Redemption. The Outstanding Bonds, other than the
Escrow Bonds, maturing on September 1, 20 , are subject to mandatory sinking fund
redemption in part, on September 1, 20 , and on each September 1 thereafter to maturity, by
lot, at a redemption price equal to the principal amount thereof to be redeemed, together with
accrued interest to the date fixed for redemption, without premium, from sinking payments as
follows:
Redemption Date
(September 1) Sinking Payments
The Outstanding Bonds, other than the Escrow Bonds, maturing on September 1, 20 ,
are subject to mandatory sinking fund redemption in part on September 1, 20 , and on each
September 1 thereafter to maturity, by lot, at a redemption price equal to the principal amount
thereof to be redeemed, together with accrued interest to the date fixed for redemption, without
premium, from sinking payments as follows:
Redemption Date
(September 1) Sinking Payments
The amounts in the foregoing schedules will be reduced by the City pro rata among
redemption dates, in order to maintain substantially level Debt Service, as a result of any prior
partial redemption of the Bonds as described in "Optional Redemption" above or "Redemption
from Special Tax Prepayments" below.
The Outstanding Escrow Bonds maturing on September 1, 20 are subject to
mandatory sinking fund redemption, in part, on September 1, 20 , and on each September 1
thereafter to maturity, by lot, at a redemption price equal to the principal amount thereof to be
redeemed, together with accrued interest to the date of redemption, without premium, and from
sinking payments as follows:
12
Redemption Date
(September 1) Sinking Payments
The Outstanding Escrow Bonds maturing on September 1, 20 are subject to
mandatory sinking fund redemption, in part, on September 1, 20 , and on each September 1
thereafter to maturity, by lot, at a redemption price equal to the principal amount thereof to be
redeemed, together with accrued interest to the date of redemption, without premium, and from
sinking payments as follows:
Redemption Date
(September 1) Sinking Payments
The amounts in the foregoing schedules pertaining to the Escrow Bonds shall be
reduced by the City pro rata among redemption dates, in order to maintain substantially level
Debt Service, as a result of any prior or partial redemption of the Bonds as described in
"Optional Redemption" above and "Redemption from Special Tax Prepayments" below.
Redemption from Special Tax Prepayments. Special Tax Prepayments and any
corresponding transfers from the Reserve Fund will be used to redeem Bonds, including the
Escrow Bonds following the Escrow Redemption Date, on the next Interest Payment Date for
which notice of redemption can timely be given, among maturities so as to maintain
substantially the same debt service profile for the Bonds (and any Parity Bonds) as in effect
prior to such redemption and by lot within a maturity, at a redemption price (expressed as a
percentage of the principal amount of the Bonds to be redeemed), as set forth below, together
with accrued interest to the date fixed for redemption:
Redemption Dates Redemption Prices
March 1, 2008 through March 1, 20__ 10_%
September 1, 20 and March 1, 20 10_
September 1, 20 and March 1, 20 10_
September 1, 20 and any Interest Payment Date thereafter 100
Extraordinary Mandatory Redemption of Escrow Bonds. The Escrow Bonds are
subject to extraordinary mandatory redemption on the Escrow Redemption Date See
"SECURITY FOR THE BONDS - Escrow Fund," from funds transferred from the Escrow Fund to
the Bond Fund pursuant to the Fiscal Agent Agreement at a redemption price equal to [ ]
of the principal amount thereof, together with accrued interest thereon to the date of redemption.
See "SECURITY FOR THE BONDS - Escrow Fund" below and "APPENDIX E - Summary of
Fiscal Agent Agreement" for a discussion of the conditions that would lead to an Extraordinary
Mandatory Redemption of the Escrow Bonds.
Purchase In Lieu of Redemption. In lieu of any redemption as described above, at the
direction of an Authorized Officer, moneys in the Bond Fund may be used and withdrawn by the
Fiscal Agent for purchase of Outstanding Bonds, at public or private sale, but in no event may
Bonds be purchased at a price in excess of the principal amount thereof, plus interest accrued
to the date of purchase and any premium which would otherwise be due if such Bonds were to
be redeemed in accordance with the Fiscal Agent Agreement.
Notice of Redemption. The Fiscal Agent will cause notice of any redemption to be
mailed by first class mail, postage prepaid, at least 30 days but not more than 60 days prior to
the date fixed for redemption, to the Securities Depositories, to one or more Information
13
Services, and to the respective registered Owners of any Bonds designated for redemption, at
their addresses appearing on the Bond registration books in the Principal Office of the Fiscal
Agent; however, mailing of the notice by the Fiscal Agent is not a condition precedent to
redemption and failure to mail or to receive any such notice, or any defect in the notice, will not
affect the validity of the proceedings for the redemption of the Bonds.
Effect of Redemption. From and after the date fixed for redemption, if funds available
for the payment of the principal of, and interest and any premium on, the Bonds so called for
redemption are deposited in the Bond Fund, the Bonds called for redemption will cease to be
entitled to any benefit under the Fiscal Agent Agreement other than the right to receive payment
of the redemption price, and no interest will accrue thereon on or after the redemption date
specified in the redemption notice.
Registration, Transfer and Exchange
Registration. The Fiscal Agent will keep or cause to be kept, at its Principal Office
sufficient books for the registration and transfer of the Bonds, which books will show the series
number, date, amount, rate of interest and last known Owner of each Bond. The City and the
Fiscal Agent will treat the Owner of any Bond whose name appears on the Bond register as the
absolute Owner of such Bond for any and all purposes, and the City and the Fiscal Agent shall
not be affected by any notice to the contrary. The City and the Fiscal Agent may rely on the
address of the Bondowner as it appears in the Bond register for any and all purposes.
The following provisions regarding the exchange and transfer of the Bonds apply only
during any period in which the Bonds are not subject to DTC's book-entry system. While the
Bonds are subject to DTC's book-entry system, their exchange and transfer will be effected
through DTC and the Participants and will be subject to the procedures, rules and requirements
established by DTC. See "APPENDIX F - DTC and the Book-Entry Only System."
Transfers of Bonds. Any Bond may, in accordance with its terms, be transferred, upon
the Bond register by the person in whose name it is registered, in person or by his duly
authorized attorney, upon surrender of such Bond for cancellation, accompanied by delivery of a
duly written instrument of transfer in a form acceptable to the Fiscal Agent. The cost for any
services rendered or any expenses incurred by the Fiscal Agent in connection with any such
transfer shall be paid by the City. The Fiscal Agent shall collect from the Owner requesting
such transfer any tax or other governmental charge required to be paid with respect to such
transfer.
Whenever any Bond or Bonds is surrendered for transfer, the City will execute and the
Fiscal Agent will authenticate and deliver a new Bond or Bonds, for like aggregate principal
amount of authorized denomination(s).
No transfers of Bonds will be required to be made (i) fifteen days prior to the date
established by the Fiscal Agent for selection of Bonds for redemption; or (ii) with respect to a
Bond after such Bond has been selected for redemption.
Exchange of Bonds. Bonds may be exchanged at the Principal Office of the Fiscal
Agent for a like aggregate principal amount of Bonds of authorized denominations and of the
same series and maturity. The cost for any services rendered or any expenses incurred by the
Fiscal Agent in connection with any such exchange shall be paid by the City. The Fiscal Agent
14
will collect from the Owner requesting such exchange any tax or other governmental charge
required to be paid with respect to such exchange.
No exchanges of Bonds may be required to be made (i) fifteen days preceding the date
established by the Fiscal Agent for selection of Bonds for redemption; or (ii) with respect to a
Bond after such Bond has been selected for redemption.
15
Debt Service Schedule
The following table presents the annual debt service on the Bonds (including sinking
fund redemptions), assuming (i) the release of Escrow Bond proceeds from the Escrow Fund
(see "SECURITY FOR THE BONDS - Escrow Fund") and (ii) no optional redemptions or special
mandatory redemptions from Special Tax prepayments.
Year Ending
September 1
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
2019
2020
2021
2022
2023
2024
2025
2026
2027
2028
2029
2030
2031
2032
2033
2034
2035
2036
2037
2038
Total
Principal
$
Interest
$
Total
Debt Service
$
16
SECURITY FOR THE BONDS
General
The City's obligation to pay the principal of, and interest and any premium on, the Bonds
is secured by a first pledge of the following:
• Funds Established Under the Fiscal Agent Agreement. Moneys in the Bond
Fund (including the Special Tax Prepayments Account), the Reserve Fund and
the Special Tax Fund. Moneys in the Administrative Expense Fund, the
Improvement Fund, the Rebate Fund and the Costs of Issuance Fund are not
pledged to the repayment of the Bonds.
• Special Tax Revenues. The Fiscal Agent Agreement defines "Special Tax
Revenues" as proceeds of the Special Taxes levied within Improvement Area 2
("Special Taxes"), including any scheduled payments and any prepayments
thereof, interest and penalties thereon and proceeds of the redemption or sale of
property sold as a result of foreclosure of the lien of the Special Taxes to the
amount of said lien, interest and penalties thereon.
The Facilities to be financed with the proceeds of the Bonds are not in any way pledged
to pay debt service on the Bonds. Any proceeds of condemnation or destruction of the Facilities
are not pledged to pay debt service on the Bonds and are free and clear of any lien or obligation
imposed under the Fiscal Agent Agreement.
Special Taxes
Levy of Special Taxes. The City has covenanted in the Fiscal Agent Agreement to
comply with all requirements of the Act so as to assure the timely collection of Special Tax
Revenues, including without limitation, the enforcement of the payment or collection of
delinquent Special Taxes.
Under the Fiscal Agent Agreement, the City is obligated to effect the levy of the Special
Taxes each Fiscal Year in accordance with the Ordinance by each August 1 (or a later date
authorized by the Act or any amendment of the Act) that the Bonds are outstanding, such that
the computation of the levy and the transmission of the amounts to the County is complete
before the final date on which the County will accept the transmission of the Special Tax
amounts for the parcels within Improvement Area 2 for inclusion on the next real property tax
roll.
An authorized officer of the City will fix and levy the amount of Special Taxes within
Improvement Area 2 required for the payment of principal of and interest on any outstanding
Bonds becoming due and payable during the ensuing calendar year, including any necessary
replenishment or expenditure of the Reserve Fund for the Bonds and an amount estimated to
be sufficient to pay the Administrative Expenses (including any rebate requirement imposed by
federal tax law) during such year, taking into account the balances in such funds and in the
Special Tax Fund.
Reduction of Special Taxes. The City covenants in the Fiscal Agent Agreement not to
initiate, consent or conduct proceedings to reduce the maximum Special Taxes that may be
levied in Improvement Area 2 below an amount which is necessary to provide Special Tax
17
Revenues in any Fiscal Year in an amount equal to 110 % of the maximum annual debt service
on the Bonds plus a reasonable estimate of Administrative Expenses for such Fiscal Year.
Manner of Collection. The Fiscal Agent Agreement provides that the Special Taxes
may be collected either on the County tax roll or directly from the owners or lessees of the
parcels of taxable property. The City expects to collect the Special Taxes levied in
Improvement Area 2 in fiscal year 2008-09 through the County tax roll.
Because the Special Tax levy is limited to the maximum Special Tax rates set forth in
the Rate and Method, no assurance can be given that, in the event of Special Tax
delinquencies, the receipts of Special Taxes will, in fact, be collected in sufficient amounts in
any given year to pay debt service on the Bonds. See "BOND OWNERS' RISKS," including the
subsection entitled "- Other Possible Claims Upon the Value of Taxable Property," for a
discussion of factors that could impact the amount of Special Taxes collected by the City and
the amount, if any, to be realized by Bond owners as a result of a foreclosure sale in respect of
delinquent Special Taxes.
Additional Obligations Secured by Special Taxes
The Fiscal Agent Agreement authorizes the City to incur additional obligations secured
by Special Tax Revenues solely for the purpose of refunding the outstanding Bonds.
Rate and Method
General. The Special Tax will be levied and collected according to the Rate and
Method, which provides the means by which the City, or its designee, may annually levy the
Special Taxes within Improvement Area 2, up to the Maximum Special Tax. In addition, the
Rate and Method provides the formula to determine the amount of the Special Tax that will need
to be collected each Fiscal Year from the "Taxable Property" within Improvement Area 2.
The following is a summary of the provisions of the Rate and Method, which should be
read in conjunction with the complete text of the Rate and Method which is attached to this
Official Statement as "APPENDIX B - Rate and Method of Apportionment of Special Tax." The
meaning of the defined terms used in this section are as set forth in APPENDIX B. This section
provides only a summary of the Rate and Method, and is qualified by more complete and
detailed information contained in the entire Rate and Method attached to this Official Statement
as APPENDIX B.
Assignment to Land Use Categories. Prior to the beginning of each Fiscal Year, all
property within Improvement Area 2 will be classified as either Taxable Property or Exempt
Property. Taxable Property shall be further classified as Final Map Property or Developable
Property.
Maximum Special Tax. The Annual Maximum Special Tax per Acre for Fiscal Year
2007-08 for all Taxable Property is $13,367.84.
Each Fiscal Year, the Annual Maximum Special Tax will escalate at the applicable Index,
i.e., the lesser of (a) the annual percentage increase, if any, in the "Construction Cost Index for
ENR 20 Cities" for the City of Los Angeles as published in the "Engineering News Record" for
the twelve-month period ending with the month of March preceding each Fiscal Year or (b) 3%
18
The escalation will cease in the Fiscal Year following the earlier of (1) the completion of
the construction and acquisition of all of the Improvements pursuant to the Acquisition
Agreement or (2) the sale of the final series of Bonds.
Method of Apportionment of the Special Tax. Commencing with Fiscal Year 2008-09
and for each following Fiscal Year, the CFD Administrator will determine the Special Tax
Requirement. No Special Tax will be levied until any property is classified as Final Map
Property. After any property has been classified as Final Map Property, the Special Tax will be
levied on all Taxable Property within Improvement Area 2 as necessary to fund the Special Tax
Requirement as follows:
First: The Special Tax will be levied in equal percentages on each Assessor's
Parcel of Taxable Property, exclusive of Open Space Property and Public Property, up
to 100% of the applicable Annual Maximum Special Tax.
Second: If additional Special Taxes are needed after the first step, the Special
Tax shall be levied in equal percentages on each remaining Assessor's Parcel of
Taxable Property (i.e., Open Space Property and Public Property which is not exempt
from the Special Tax), up to 100% of the applicable Annual Maximum Special Tax.
Exemptions. The CFD Administrator will classify the following as Exempt Property:
(i) Public Property,
(ii) Open Space, and
(iii) Assessor Parcels with public or utility easements making impractical their
utilization for other than the purposes set forth in the easement;
provided, however, that no such classification will reduce the sum of all Taxable Property to less
than 150.57 Acres. Assessor's Parcels which cannot be classified as Exempt Property because
such classification would reduce the Acreage of all Taxable Property to less than the amount
stated above will be classified as Taxable Property and will be taxed.
The Annual Maximum Special Tax obligation for any property which would be classified
as Public Property upon its transfer or dedication to a public agency but which is classified as
Taxable Property pursuant to the preceding paragraph will be prepaid in full by the seller prior to
the transfer/dedication of such property to such public agency. Until the Annual Maximum
Special Tax obligation for any such Public Property is prepaid, the property will continue to be
subject to the levy of the Special Tax as Taxable Property.
If the use of an Assessor's Parcel of previously classified Exempt Property changes so
that such Assessor Parcel is no longer classified as Exempt Property, such Assessor Parcel will
cease to be classified as Exempt Property and will be deemed to be Taxable Property.
Manner of Collection of Special Taxes. The Special Tax will be collected in the same
manner and at the same time as ordinary ad valorem property taxes; provided, however, that
the CFD Administrator may directly bill the Special Tax, or may collect Special Taxes at a
different time or in a different manner if necessary to meet the financial obligation of the
Community Facilities District for Improvement Area 2 or as otherwise determined appropriate by
the CFD Administrator.
19
Prepayment of Special Taxes. The Rate and Method permits prepayment of Special
Taxes. See "APPENDIX B - Rate and Method of Apportionment of Special Tax" for more
detailed information about the manner in which the amount of Special Tax prepayments will be
calculated.
Duration of the Special Tax Levy. The Special Tax may not be levied (a) longer than
the 10th Fiscal Year following the final maturity of the last series of Bonds or (b) longer than is
needed to pay the cost and incidental expenses of the construction of the Improvements,
whichever is later.
Covenant to Foreclose
Foreclosure Under the Act. Under Section 53356.1 of the Act, if any delinquency
occurs in the payment of the Special Tax, the City may order the institution of a Superior Court
action to foreclose the lien therefor within specified time limits. In such an action, the real
property subject to the delinquent Special Tax levy may be sold at judicial foreclosure sale.
City's Foreclosure Covenant. The City has covenanted in the Fiscal Agent
Agreement, with and for the benefit of the owners of the Bonds, that it will order, and cause to
be commenced as described in the following paragraph, and thereafter diligently prosecute to
judgment (unless the delinquency is brought current), an action in the superior court to foreclose
the lien of any Special Tax or installment thereof not paid when due.
The City covenants to order, cause to be commenced and diligently pursue to
completion, judicial foreclosure proceedings against property or properties under common
ownership with cumulative aggregate delinquent Special Taxes in excess of $10,000 by the
October 1 following the close of the Fiscal Year in which such delinquent Special Taxes first
exceed such amount, and will commence judicial foreclosure proceedings against all properties
with delinquent Special Taxes by the October 1 following the close of each Fiscal Year in which
it receives Special Tax Revenues in an amount which is less than 95% of the total Special Tax
Revenues which were to be received in such Fiscal Year.
Sufficiency of Foreclosure Sale Proceeds; Foreclosure Limitations and Delays.
No assurances can be given that the real property subject to a judicial foreclosure sale will be
sold or, if sold, that the proceeds of sale will be sufficient to pay any delinquent Special Tax
installment. The Act does not require the City to purchase or otherwise acquire any lot or parcel
of property foreclosed upon if there is no other purchaser at such sale. See "BOND OWNERS'
RISKS," including the subsection entitled "- Other Possible Claims Upon the Value of Taxable
Property," for a discussion of factors that could impact amounts, if any, to be realized by Bond
owners as a result of a foreclosure sale.
Section 53356.6 of the Act requires that property sold pursuant to foreclosure under the
Act be sold for not less than the amount of judgment in the foreclosure action, plus post-
judgment interest and authorized costs, unless the consent of the owners of 75 percent of the
outstanding Bonds is obtained. However, under Section 53356.6 of the Act, the City, as
judgment creditor, is entitled to purchase any property sold at foreclosure using a "credit bid,"
where the City could submit a bid crediting all or part of the amount required to satisfy the
judgment for the delinquent amount of the Special Tax. If the City becomes the purchaser
under a credit bid, the City must pay the amount of its credit bid into the redemption fund
established for the Bonds, but this payment may be made up to 24 months after the date of the
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foreclosure sale. The City has no obligation whatsoever to make any credit bid or purchase any
property subject to delinquent Special Taxes and has no intention to do so.
Foreclosure by court action is subject to normal litigation delays, the nature and extent of
which are largely dependent on the nature of the defense, if any, put forth by the debtor and the
Superior Court calendar. In addition, the ability of the City to foreclose the lien of delinquent
unpaid Special Taxes may be substantially delayed by bankruptcy court proceedings, may be
limited in certain other circumstances and may require prior consent of the property owner if the
property is owned by or in receivership of the Federal Deposit Insurance Corporation (the
"FDIC"). See "BOND OWNERS' RISKS - Bankruptcy and Foreclosure Delays."
Wo Teeter Plan. Because the County has not elected to follow the procedures of the
"Teeter Plan" (which is the County's Alternative Method of Distribution of Tax Levies and
Collections and of Tax Sale Proceeds, as provided for in Section 4701 et seq. of the California
Revenue and Taxation Code) with respect to special taxes, collections of Special Taxes will
reflect actual delinquencies.
Special Tax Fund
Deposits. The Fiscal Agent Agreement obligates the City to (i) not later than January
15 or July 15, deliver all Special Tax prepayments to the Fiscal Agent for deposit in the Special
Tax Prepayments Account of the Bond Fund (moneys in the Special Tax Prepayments Account
will be used to redeem Bonds on the next date for which notice of redemption can be given) and
(ii) deposit all other Special Tax Revenues received by it, within 5 Business Days after receipt,
into the Special Tax Fund held by the City's Finance Director.
Special Tax Fund Held in Trust. Moneys in the Special Tax Fund will be held in trust
by the Finance Director for the benefit of the owners of the Bonds and the City.
Disbursements. From time to time as needed to pay the obligations of the District, but
no later than the Business Day prior to each Interest Payment Date, the Finance Director will
withdraw from the Special Tax Fund and transfer the following amounts in the following order of
priority:
Administrative Expense Fund: To the Administrative Expense Fund in an
amount not to exceed the Priority Administrative Expense Amount ($ ).
Bond Fund: To the Fiscal Agent for deposit in the Bond Fund, an amount, taking
into account any amounts then on deposit in the Bond Fund and any expected transfers
to the Bond Fund from the Improvement Fund, the Reserve Fund, and the Special Tax
Prepayments Account, such that the amount in the Bond Fund equals the principal
(including any sinking payment), premium, if any, and interest due on the Bonds on the
next Interest Payment Date.
Reserve Fund: To the Fiscal Agent for deposit in the Reserve Fund, an amount,
taking into account amounts then on deposit in the Reserve Fund, such that the amount
in the Reserve Fund is equal to the Reserve Requirement.
Additional Administrative Expenses: Amounts then in the Special Tax Fund
remaining after disbursements described above will be transferred from time to time by
the Finance Director to the Administrative Expense Fund, to pay additional
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Administrative Expenses in excess of the amount deposited above, so long as any such
transfers do not exceed, in any Fiscal Year, the amount included in the Special Tax levy
for such Fiscal Year for Administrative Expenses.
Bond Fund
The Fiscal Agent Agreement establishes the Bond Fund, and within the Bond Fund, an
Interest Account (and a Capitalized Interest Sub-account within the Interest Account), a
Principal Account and a Special Tax Prepayments Account. Moneys in the Bond Fund and the
accounts therein will be held in trust by the Fiscal Agent for the benefit of the Owners of the
Bonds, will be disbursed for the payment of the principal of, and interest and any premium on,
the Bonds, and, pending such disbursement, will be subject to a lien in favor of the Owners of
the Bonds. See APPENDIX E for a summary of the provisions of the Fiscal Agent Agreement
relating to deposits into and disbursements from the Bond Fund.
Reserve Fund
In order to further secure the payment of principal of and interest on the Bonds, certain
proceeds of the Bonds will be deposited into the Reserve Fund in an amount equal to the
Reserve Requirement. See "FINANCING PLAN - Estimated Sources and Uses of Funds."
"Reserve Requirement" is defined in the Fiscal Agent Agreement to mean, as of any date of
calculation, an amount equal to the least of the following (excluding the amount, if any, on
deposit in the Escrow Fund as of the date of calculation):
(i) 10% of the outstanding principal amount of the Bonds,
(ii) maximum annual debt service on the outstanding Bonds, or
(iii) 125% of average annual debt service on the outstanding Bonds.
If Special Taxes are prepaid and Bonds are to be redeemed with the proceeds of such
prepayment, a proportionate amount in the Reserve Fund (determined on the basis of the
principal amount of the Bonds to remain outstanding) will be applied to the redemption of the
Bonds.
See "APPENDIX E - Summary of Fiscal Agent Agreement" for a description of the
timing, purpose and manner of disbursements from the Reserve Fund.
Escrow Fund
Establishment of Escrow Fund. The proceeds of the Escrow Bonds will be deposited
into various accounts in an Escrow Fund to be held by the Fiscal Agent under the Fiscal Agent
Agreement. Moneys in the Escrow Fund will be held in trust by the Fiscal Agent for the benefit
of the Bondowners and will be transferred only as provided in the Fiscal Agent Agreement. Set
forth below is a brief summary of the provisions of the Fiscal Agent Agreement relating to the
Escrow Fund. See "APPENDIX E - Summary of Fiscal Agent Agreement" for a more
comprehensive summary of the Escrow Fund provisions.
Transfers on Escrow Release Dates. The Fiscal Agent Agreement provides for the
transfer of funds from the Escrow Fund to the Improvement Fund and the Reserve Fund not
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more often than once each 12-month period (each, an "Escrow Release Date"), subject to
satisfaction of certain "Escrow Release Tests," including written certification by the City that:
(1) Based on information from the County Tax Collector, there are no current
defaults in the payment of any ad valorem real property taxes, special taxes or assessments
levied on the Remaining Lots owned by either Techbilt Construction or CONP. "Remaining
Lots" is defined as the property in Improvement Area No. 2 that is owned as of the date of this
Official Statement by Techbilt Construction and CONP, or any Affiliate of either such entity. See
"PROPERTY OWNERSHIP AND PROPOSED DEVELOPMENT - Property Ownership" below.
(2) The final subdivision map for Phase 3 of Carlsbad Oaks North has been
recorded in the office of the County Recorder.
(3) Two separate 4:1 value-to-lien tests have been met, the first of which is based on
the appraised value of all parcels of Taxable Property in Improvement Area 2 and the second of
which is based on the appraised value of the Remaining Lots.
Extraordinary Mandatory Redemption of Escrow Bonds. On the day immediately
preceding September 1, 2010 or such later date determined by the City (the "Escrow
Redemption Date"), moneys in the Escrow Fund will be transferred to the Interest Account and
the Principal Account for the purpose of redeeming the Escrow Bonds on the Escrow
Redemption Date. See "THE BONDS - Redemption - Extraordinary Mandatory Redemption of
Escrow Bonds."
Limited Obligation
All obligations of the City under the Fiscal Agent Agreement and the Bonds are special
obligations of the City, payable solely from Special Tax Revenues and other moneys identified
in the Fiscal Agent Agreement.
No Acceleration
The principal of the Bonds are not subject to acceleration under the Fiscal Agent
Agreement as a result of a default relating to the Fiscal Agent Agreement or the Bonds.
THE CITY
For general information on the City see "APPENDIX A - General Information About the
City of Carlsbad and County of San Diego."
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[INSERT AERIAL PHOTO FROM APPRAISAL]
24
[INSERT MAP OF CARLSBAD OAKS NORTH]
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IMPROVEMENT AREA 2
General
The Community Facilities District. The Community Facilities District includes
Improvement Area 1 and Improvement Area 2. The Bonds are secured by Special Tax
Revenues derived from the levy of Special Taxes in Improvement Area 2 only.
The boundary map showing the boundaries of Improvement Area 2 and the Community
Facilities District is attached as APPENDIX J.
Improvement Area 2. Improvement Area 2 consists of 413.9 gross acres of which
167.13 taxable acres are designated for development by the Property Owners with
approximately 2,004,800 square feet of industrial, research and development, office and
corporate office buildings on 23 lots. Another approximately 220.26 acres are set aside for
open space and public utilities on 4 lots. The proposed development is commonly known as
Carlsbad Oaks North.
Property in Improvement Area 2 is characterized by three different topographic areas:
the north-facing hillside slopes that extend down from the southern portion of the property; the
rocky hills that cover the central and northern portions of the property (characterized by
gradually steepening granite hillsides, including numerous tributary drainages and rock
outcrops); and the intervening east-west canyon drainage.
Entitlements
No assurances can be made that the Property Owners or any other current or future
owner of property within Improvement Area 2 will have the resources, willingness and ability to
successfully complete development activities on the property within Improvement Area 2. No
representation is made by the City as to the ability (financial or otherwise) of the Property
Owners, or any other owner of property within Improvement Area 2 to complete the property
development as currently planned.
Development Agreement. There is no development agreement with respect to the
property in Improvement Area 2.
Entitlement Status. Techbilt Construction reports the following entitlement status:
• Carlsbad Oaks North Specific Plan (SP 211) approved by City Council Ordinance
No. NS-646 adopted October 15, 2002. The Specific Plan authorizes
development of 23 buildable lots ranging in size from 3.0 acres to 20.7 acres,
and allows industrial, research and development, office, auxiliary commercial and
open space use; the remaining 4 lots would be used for a sewer pump station
and passive recreation area (1 lot) and open space (3 lots).
• Approved Tentative Tract Map (TM 97-13) approved by Resolution No. 5249 of
the City's Planning Commission adopted on August 21, 2002. The Tentative
Tract Map divides the 414 acres in Improvement Area 2 into 27 lots in three
phases (97-13-01, 97-13-02, 97-13-03) corresponding to the three proposed
phases of development of Carlsbad Oaks North. The Tentative Tract Map is a
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phased tentative map; it expires with respect to Phase 3 on January 23, 2010.
Final Maps have been recorded for Phases 1 and 2; as a result thereof, the
Tentative Tract Map expires on January 23, 2010 with respect to Phase 3.
• Recorded Final Map for Phase 1 (Map No. 14926 recorded December 15, 2004).
The Final Map provides that building permits will not be issued until the local
agency providing water and sewer services (the City) certifies that service is
available to the project and will continue to be available until the time of
occupancy. Techbilt Construction reports that water and sewer service pipelines
are complete and Techbilt Construction projects the sewer pump station will be
operable by December 21, 2007. [Confirm prior to print]
• Recorded Final Map for Phase 2 (Map No. 15505 recorded January 23, 2007).
The Final Map provides that building permits will not be issued until the local
agency providing water and sewer services (the City) certifies that service is
available to the project and will continue to be available until the time of
occupancy. Techbilt Construction reports that (1) lot grading is complete, (2)
storm drain and sewer is 90% complete and water lines are 30% complete.
Techbilt Construction projects the remaining site improvements including dry
utilities, curb, gutter, paving and landscaping will be complete by June 2008.
• 404 Permit (No. 200200641-JMB). The U.S. Army Corps of Engineers ("Corps")
permit authorizes impact on 2.70 acres of jurisdictional wetlands and waters of
the United States to construct: (i) a Faraday Avenue extension consisting of two
separate crossings, (ii) a South Agua Hedionda Sewer extension, (iii) a regional
stormwater detention basin and (iv) Carlsbad Oaks North. The permit expires on
October 29, 2009 and requires Techbilt Construction to implement the
conservation measures described in the U.S. Fish and Wildlife Service's final
Biological Opinion dated December 4, 2003 (see "Environmental Conditions"
below). The permit requires not less than 2.7 acres of wetland creation, 6 acres
of wetland enhancement and 6 acres of riparian fringe enhancement. The permit
further requires a pre-construction delineation and functional assessments and
submission to the Corps of final wetland construction plans, specifications and
drawings based on the approved, conceptual mitigation plan. Techbilt
Construction reports that all wetland enhancement and creation measures are
now complete; the subsequent five-year maintenance and monitoring program is
underway and its performance is secured by a bank letter of credit.
• Final Map for Phase 3. Techbilt Construction reports it expects to record the final
map for Phase 3 in November 2008.
Utilities. It is expected that utility services for the property in Improvement Area 2 will
be provided by the entities listed below.
• Water. The City of Carlsbad. The tentative map for Phase 3 and
the final maps for Phase 1 and Phase 2 provide that a building permit will not be
issued until the City determines that water facilities are available. The City does
not authorize water connection until it issues a building permit.
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• Sanitary sewer. The City of Carlsbad. The tentative map for Phase 3 and
the final maps for Phase 1 and Phase 2 provide that a building permit will not be
issued until the City determines that sewer facilities are available. The City does
not authorize sewer connection until it issues a building permit.
• Stormwater drainage: The City of Carlsbad. The tentative map for Phase 3 and
the final maps for Phase 1 and Phase 2 provide that a building permit will not be
issued until the City determines that Stormwater facilities are available. The City
does not determine whether adequate Stormwater capacity is available until a
building permit is issued.
• Electricity and Gas: San Diego Gas & Electric.
• Telephone: SBC and Cox Communications.
Environmental Conditions
Set forth in the following paragraphs are summaries of environmental issues applicable
to development of property in Improvement Area 2.
CEQA Review. Pursuant to Resolution No. 5249 adopted on August 21, 2002, the
City's Planning Commission found that the design and improvements of Carlsbad Oaks North
are not likely to cause substantial environmental damage nor substantial and avoidable injury to
fish and wildlife or their habitat because the mitigation required by the Final Program EIR 98-08
will reduce potentially significant environmental impacts to below significant levels except for
specific unavoidable adverse impacts on circulation, air quality and biological resources. The
Planning Commission found that overriding considerations for the unavoidable adverse impacts
were justified based on the project's contribution to the City's revenues, employment
opportunities, open space, habitat management plan, and Citywide road and sewer
infrastructure in accordance with the City's Growth Management Plan. The resolution further
provided that the approvals were granted subject to the certification, adoption and approval of
the Program Environmental Impact Report and Mitigation, Monitoring and Reporting Program,
General Plan Amendment 97-05, Zoning Change 97-05, Carlsbad Oaks North Specific Plan (SP
21-1), Zone 16 Local Facilities Management Plan Amendment (LFMP 89-16(A)), Hillside
Development Permit (HDP 97-10), Planned Industrial Permit (PIP 02-02) and Special Use
Permit (SUP 97-07), and is subject to all conditions contained in Planning Commission
Resolutions 5244, 5245, 5246, 5247, 5248, 5249, 5250, 5251 and 5252.
Pursuant to Resolution No. 2002-298 adopted on October 8, 2002, the City Council of
the City certified Program EIR 98-08 and approved the Mitigation Monitoring and Reporting
Program attached as Exhibit "EIR-B" to Planning Commission Resolution No. 5244 adopted
August 21, 2002. The Mitigation Monitoring and Reporting Program includes the following
mitigation requirements, among others:
• 75-150 foot building setback and 60-foot minimum landscape buffer along the
eastern boundary of the property to reduce impacts to adjacent residential uses
in terms of lighting, noise, air quality and hazardous material.
• Design and construction of improvements to a number of intersections and
construction of certain road extensions. Techbilt Construction reports that all of
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50
these improvements have been completed with the exception of: (i) final asphalt
lift and lane striping on El Fuerte Street, and (ii) the Melrose Drive right-turn lane
south of Palomar Airport Road (which is to be constructed by a separate
developer).
100.6 acres of remaining mitigation credit within the Carlsbad Highlands
mitigation bank and 70.4 acres of suitable conservation from other mitigation
lands meeting certain standards. Techbilt Construction reports that this
requirement has been satisfied.
A 2:1 (conserved to impacted) ratio of all coastal sage scrub on the property to
address impacts on gnatcatcher habitat. Techbilt Construction reports that this
mitigation has been satisfied.
Wetland mitigation to produce a no-net-loss of wetlands as required by the
Carlsbad Habitat Management Plan. A wetlands restoration and monitoring plan
has been prepared and approved by all state and federal permitting agencies.
Techbilt Construction reports that all wetland enhancement and creation
measures are now complete; the subsequent 5 year maintenance and monitoring
program is underway, and its performance is secured by a bank letter of credit.
Wildlife undercrossing at Faraday Avenue. Techbilt Construction reports that the
undercrossing has been completed.
The EIR identified the presence of loose porous soils and expansive soils and
required, in mitigation, that grading and construction of property in Improvement
Area 2 must comply with the geotechnical conditions contained in: (i) the
Preliminary Geotechnical investigation for Proposed Carlsbad Oaks East
prepared by Woodward-Clyde Consultants (June 15, 1990) (as updated by
Geocon Inc. January 4, 2000), (ii) Geologic Reconnaissance with Limited
Subsurface Investigation, Proposed South Agua Hedionda Interceptor Alignment,
Carlsbad, California prepared by Leighton and Associates, Inc. (November 30,
2000), and (iii) Geological Reconnaissance, Proposed Faraday Avenue
Extension Orion Street to Brookhaven Pass, Carlsbad, California prepared by
Leighton and Associates, Inc. (March 23, 2001). Techbilt Construction reports
that it is complying with the recommendations of Geocon Incorporated, the
engineer of record for the development, set forth in its report dated October 21,
2004 (see "Geologic Conditions" below), which recommendations fully
incorporate and implement the recommendations contained in the earlier reports.
The EIR identified the risk of landslides (ancient landslide deposits were
identified on the property) and the fact that the property is located in a seismically
active region as potential significant impacts, and, in addition to previously-
described mitigation requirements, required development in compliance with the
Uniform Building Code and State building requirements in effect at the time of
development. Techbilt Construction reports that it will comply with these
requirements in connection with construction of buildings.
The EIR concludes that, in a hillside development, control of groundwater is
essential to reduce the potential for undesirable surface flow, hydrostatic
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5(
pressure and the adverse effects of groundwater on slope stability. To reduce
the potential impact of these conditions, the EIR requires an additional
geotechnical investigation prior to grading and construction to identify possible
future seepage areas that could occur during grading. The EIR also requires a
detailed hydrology analysis at the time specific developments are submitted for
review by the City, and that a drainage control system be implemented in
accordance with the recommendations of the hydrology analysis. Techbilt
Construction reports that it commissioned these reports and is developing the
project in accordance with the reports' recommendations.
• To mitigate potential significant impact on specific archaeological sites (relating
to the prehistoric Luseno people), the sites must undergo further testing and data
recovery prior to grading and disturbance. The EIR concludes that mitigation of
impacts can be achieved by exhausting the research potential of the significant
sites through implementation of a plan to recover artifacts and data
representative of the occupation of the sites. Techbilt Construction reports that all
testing, data recover and mitigation measures have been completed.
• Because the proposed project will disturb geological deposits that have a
moderate and high potential for producing potentially significant paleontological
resources, the EIR requires a qualified paleontologist to carry out an appropriate
mitigation program; discovery of significant fossils could delay construction.
Techbilt Construction reports that it is complying with this requirement during
grading of the site and no disruptions have resulted.
• The EIR also noted the measures required of Techbilt Construction pursuant to
the City's Growth Management Program and land uses ordinances, including
growth management Local Facilities Fees of $310 per equivalent dwelling unit
(EDU); payment of amounts required by the Citywide Community Facilities
District No. 1; Traffic Impact Fees; Public Facilities Fees; Drainage Fees; Sewer
Connection Fees per EDU; Water Capacity charges per EDU; preservation of an
estimated 219.5 acres of sensitive habitats under the Regional Multiple Habitat
Conservation Plan, the City's Draft HMP (1999) and 1993 Agreement
Establishing the CNP; construction of the final link of Faraday Avenue, a critical
east/west circulation element road; construction of a link of El Fuerte Street, a
critical north/south circulation element road; and construction of a detention basin
located within the Agua Hedionda Watershed that is part of a larger area
stormwater drainage plan. Techbilt Construction reports that the Faraday
Avenue link, the El Fuerte Street link, and the detention basin have been
completed, with the exception of the final asphalt lift and lane striping on El
Fuerte Street.
Phase I Environmental Site Assessments. Geocon Consultants, Inc. ("Geocon
Consultants") prepared a Phase I Environmental Site Assessment for the Carlsbad Oaks North
property dated November 17, 2004. The Geocon Phase I reported that Geocon Consultants
had not observed any recognized environmental conditions (the presence or likely presence of
any hazardous substances or petroleum products on a property under conditions that indicate
an existing release, a past release, or a material threat of a release of any hazardous
substances or petroleum products into structures on the property or into the ground, ground
water, or surface water of the property) and concluded that no additional onsite environmental
assessment was warranted. However, it did report a potential recognized environmental
30
condition had been identified on the southern portion of the property: pesticides and herbicides
that might be present as a result of historical agricultural crop production. Geocon Consultants
recommended sampling and analysis if the southern portion of the property was disturbed for
grading, road construction, etc. In a letter dated February 27, 2006, Geocon Consultants stated
that because the site has been graded, topsoil that may have contained pesticide residues have
been incorporated into and placed as compacted fill, reducing the potential for exposure to
future occupants of the site, and that any remaining organochlorine pesticide residue in the fill
does not pose a risk to human health or the environment.
Kilroy also had a Phase I Environmental Site Assessment conducted on the property in
conjunction with its purchase of four lots from Techbilt Construction. The Phase I
Environmental Site Assessment was prepared by Ardent Environmental Group, Inc., (Project
No. 100002001) on February 20, 2007. Ardent Environmental Group, Inc. confirmed the prior
Geocon findings and updated the prior Phase I to the current date and new standards.
Geologic Conditions. An Update Geotechnical Investigation by Geocon Incorporated
("Geocon") dated October 21, 2004 concluded that no soil or geologic conditions were
encountered that would preclude the development of the property as presently planned.
However, Geocon made a number of recommendations, including remedial grading, buttresses
and/or stability fills, grading in compliance with recommended specifications, certain actions to
provide slope stability, compliance with specified seismic design parameters and foundation
recommendations, and good drainage to reduce the potential for differential soil movement,
erosion and subsurface seepage, Techbilt Construction reports that the recommendations set
forth in the Geocon report have been followed or will be implemented as further development
occurs. As noted in "CEQA Review" above, the October 21, 2004 report's recommendations
fully incorporate and implement the recommendations from the earlier reports.
In connection with the earlier sale of four lots in Phase 1 to Kilroy, Geocon certified the
Phase 1 grading is in general conformance with the October 21, 2004 report. On September
11, 2007, Geocon again visited the subject site and reported that grading of Phase 2 is
substantially complete. Based on Geocon's observations and test results, it is the opinion of
Geocon that the Phase 2 grading has been performed in general conformance with the
recommendations of Geocon's October 21, 2004 geotechnical report. The City has not verified
Techbilt Construction's compliance with these recommendations.
Wetlands. CONP entered into an Agreement Regarding Proposed Stream or Lake
Alteration (Notification No. R5-2002-0218) with the State of California, Department of Fish and
Game. The Agreement relates to the proposed diversion of two unnamed drainages to Agua
Hedionda Creek: Agua Hedionda Creek and La Mirada Creek to accommodate the construction
of the Faraday Avenue Extension, the El Fuerte Street extension, the Agua Hedionda sewer
interceptor and the Carlsbad Oaks North Business Park; the construction requires filling 2.8
acres of streambed. The Agreement terminates on December 31, 2007 for project construction
(because streambed alteration agreements can only be issued for a maximum five-year period,
it provides that CONP is responsible for extending the agreement) and requires all revegetation
to be installed no later than March 31, 2005. The Agreement limits removal of vegetation
between February 15 and August 30 to avoid impacts on nesting birds, and requires a Final
Revegetation, Mitigation for on-site creation/enhancement and Monitoring Plan. Techbilt
Construction reports that all wetland restoration and creation measures are now complete; the
subsequent 5 year maintenance and monitoring program is underway and its performance is
secured by a bank letter of credit.
31 53
Biological Resources. The United States Department of the Interior, Fish and Wildlife
Service ("Fish and Wildlife") issued: (i) a biological opinion dated December 4, 2003 (ii) an
amendment dated January 4, 2005 and (Hi) an amendment dated August 8, 2005 (collectively,
the "Biological Opinion").
The Biological Opinion focuses on the project's impact on the coastal California
gnatcatcher and its habitat under the Endangered Species Act. The project occurs within the
planning area for the Multiple Habitat Conservation Program (MHCP), a subregional plan that
addresses north coastal San Diego County; the project site occurs within the planning area of
the Carlsbad Habitat Management Plan, which is now an approved subarea plan under the
MHCP. The Biological Opinion reports that habitat of the gnatcatcher encompasses 280.13
acres of proposed critical habitat on-site and the proposed development would reduce available
gnatcatcher habitat by a total of 215.16 acres offsite including the Faraday Avenue extension.
The Biological Opinion concludes the project is not likely to jeopardize the continued existence
of the gnatcatcher or adversely modify designated critical habitat, based upon the project
providing a number of conservation measures, including the following:
• Approximately 219.5 acres of wildlife habitat must be preserved on-site in
perpetuity pursuant to a long-term management plan approved before February
28, 2005. Techbilt Construction reports that this conservation measure has been
satisfied;
• At least 100.6 acres of land must be preserved as wildlife habitat at the Carlsbad
Highlands Conservation Bank. Techbilt Construction reports that this
conservation measure has been satisfied.
• At least 64.95 acres of wildlife habitat must be preserved off-site (immediately
west of the Specific Plan area). Techbilt Construction reports that this
conservation measure has been satisfied.
• Wildlife undercrossing structures must be installed where proposed roads cross
corridors thought to be important to wildlife movement. Techbilt Construction
reports that this undercrossing has been completed.
• Concurrently with or prior to construction, at least 2.8 acres of native riparian
vegetation must be created in areas that are currently non-native grassland. In
addition, 6 acres of wetland and 6 acres of riparian fringe must be enhanced
pursuant to a Wetland Restoration and Monitoring Plan. Techbilt Construction
reports that these conservation measures are now completed; the subsequent 5
year maintenance and monitoring program is underway and its completion is
secured by a bank letter of credit.
• Approximately 20.9 acres suitable for revegetation within the Highland
Conservation Bank must be revegetated with coastal sage scrub. Techbilt
Construction reports that this conservation measure has been completed
• Certain wildlife corridors must be maintained. Techbilt Construction reports that
this conservation measure has been satisfied.
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• With the exception of a 1.51 acre site, clearing and grubbing must be completed
during the non-breeding season for gnatcatchers (September 1 through February
14). Techbilt Construction reports that it is in compliance with this conservation
measure.
Removal of wildlife habitat must be phased, such that project clearing and grading must
be accomplished in three phases. Phasing maps must be part of the permit. The time between
each phase of wildlife habitat removal shall be approximately 24 months. Lot 24 must not be
significantly impacted by clearing or grading for approximately 24 months from implementation
of restoration activities on Carlsbad Highlands. With respect to the required phasing, Techbilt
Construction interprets the phasing requirement to run from issuance of the 404 permit for
Phase 1 and from commencement of clearing/grading for Phase 2. Consequently, Techbilt
Construction reports that the 24-month period for Phase 1 commenced in January 2005 and
that Phase 1 (buildable lots 1-8) has been completed with lots 4, 5, 7, and 8 delivered to Kilroy
on February 16, 2007. Techbilt Construction reports that it began clearing/grading Phase 2 in
January 2007 and substantially completed Phase 2 grading in September 2007 and projects
finished lots ready for delivery in Spring 2008. Techbilt Construction reports that
clearing/grading Phase 3 will begin in the third calendar quarter of 2008 with delivery of finished
lots beginning in second calendar quarter of 2009. Techbilt Construction reports it is in full
compliance with the Biological Opinion and other permits as substantially all of the natural
habitat was disturbed as part of Phases 1 and 2 grading and all on-site and offsite habitat
mitigation measures have been completed.
Waste Discharge Requirements. Under Section 401 of the Clean Water Act, the
California Regional Water Quality Control Board, San Diego Region, issued an Order for
Technically-conditioned Certification and Waiver of Waste Discharge Requirements dated July
19, 2004 relating to the discharge of dredged and/or fill materials with respect to the Faraday
Avenue Extension and Carlsbad Oaks North. The Section 401 approval is subject to a number
of conditions, and all on-site and off-site habitat mitigation is in place ahead of total impacts
including the following:
• Techbilt Construction must install three permanent water quality basins. Techbilt
Construction reports that the basins have been completed.
• Permanent impacts to 2.7 acres of jurisdictional waters must be mitigated in
accordance with the May 2004 Wetland Mitigation Plan (prepared by Merkel &
Associates), i.e., by creation of 3.5 acres of jurisdictional waters and habitat, and
the enhancement of 6.0 acres of Southern Willow Scrub. Techbilt Construction
reports that these measures are now complete.
• Within 90 days of issuance of the final map, a draft preservation mechanism
providing for protection of all mitigation areas and their buffers in perpetuity must
be submitted. Techbilt Construction reports it has fully completed this
requirement.
• Construction of mitigation must be completed within the same calendar year as
the impact occurs, or at least no later than 9 months following the close of the
calendar year in which impacts first occur. Techbilt Construction reports that it is
in compliance with this requirement.
33
Infrastructure Development
Techbilt Construction will develop the following public infrastructure as part of the
development of Carlsbad Oaks North:
Bond-Financed Infrastructure: As of November 1, 2007, Techbilt Construction
has constructed the following public infrastructure improvements, which will be acquired
by the City with proceeds of the Bonds:
Commencement Estimated
Improvement Tract No. Date Completion Date Cost
Faraday Avenue 97-13-1 January 2005 September 1, 2007 $15,956,550
El Fuerte Street 97-13-1 January 2005 January 21, 2008 (1) 4,055,423
Total $20,011,973
(1) Completion date based on Techbilt Construction's current projections. Techbilt Construction reports that
only the final asphalt lift and lane striping on El Fuerte Street remain.
Pending their acquisition with Bond proceeds, Techbilt Construction has financed
construction of the public infrastructure listed above from the following two sources:
• A line of credit provided by City National Bank. The available amount
under the line of credit is $22,567,000 and the balance outstanding as of
December 21, 2007 was approximately $11,00,000. The City National
Bank line of credit is secured by a deed of trust on Techbilt
Construction's/CONP's property in Improvement Area 2.
• To the extent necessary, contributions by the shareholders of Techbilt
Construction (see "PROPERTY OWNERSHIP AND PROPOSED
DEVELOPMENT - Proposed Development by Techbilt Construction" for a
description of the ownership of Techbilt Construction). City National Bank
has confirmed in a letter dated February 21, 2006 that it required, as a
condition of approving the letter of credit, the four shareholders of Techbilt
Construction to provide evidence, on a semi-annual basis, of minimum
liquid assets of $60 million. As of December 21, 2007, City National Bank
confirmed compliance with this condition.
No assurance can be given that these sources of financing will be available and,
if available, will be sufficient to complete property development and project construction
as currently anticipated.
Privately-Financed Infrastructure: In addition, as of November 1, 2007, Techbilt
Construction expects to spend a total of approximately $27.5 million on subdivision
improvements, consisting of backbone infrastructure, water and sewer improvements,
grading, and interior streets, as follows:
34
Complete
Begin Finish Infrastructure
Tract No. / Phase Grading Grading Improvement Total Cost (Est.)
97-13-01/Phase 1 1/2005 2/2007 9/2007 $11,639,650
97-13-02/Phase 2 1/2007 9/2007 2nd Qtr/2008 11,587,570
97-13-03/Phase 3 3rd Qtr/2008 2/2009 2nd Qtr/2009 4.221.054
Total $27,448,274
Techbilt Construction expects to finance construction of these subdivision improvements
with the City National Bank letter of credit and shareholder contributions described above.
Infrastructure Development as of November 1, 2007. Techbilt Construction has
completed all of the infrastructure required for development of Phase 1, which includes most of
the backbone infrastructure for all of Improvement Area 2. Techbilt Construction will extend
utilities, grade and construct interior streets as part of Phase 2 and 3 development. Phase 2
grading has been completed and includes most of the Phase 3 grading and all of the Phase 3
circulation roadway improvements. Techbilt Construction expects to be completed with all of
the infrastructure for Phase 2 by the second calendar quarter of 2008 and to complete all Phase
3 infrastructure by the second calendar quarter of 2009. As of November 1, 2007, Techbilt
Construction reported approximately $8,774,778 of infrastructure development remained to be
completed from the overall total of $27,448,274.
35
Direct and Overlapping Governmental Obligations
Taxes, Charges and Assessments. The base tax rate on property in Improvement
Area 2 for fiscal year 2007-08 is 1% on net assessed value plus 0.04187% on all voter
approved bonds. Voter approved bonds represent the Carlsbad Unified School District 1997
General Obligation Bond Election - Series A Bonds, the 2006 General Obligation Bond Election
- Series A Bonds and the San Diego County Water Authority General Obligation Bonds. In
addition, Improvement Area 2 is also subject, or will be subject, to the following annual charges
and assessments (which will be billed to property owners on a semi-annual basis):
Table 1
City of Carlsbad
Community Facilities District No. 3
Improvement Area 2
Overlapping Taxes, Charges and Assessments
(Fiscal Year 2007-08)
SAMPLE ASSESSOR PARCEL:
Assessor Parcel Number: 206-120-01-00
Tract / Lot: CT97-13-01 / Lot 1
Acres: 6.38
FIXED CHARGED ASSESSMENTS:
Lighting and Landscape District No. 2 Zone (1) 1,061.50
Vector Disease Control (2) 94.42
CWA Water Availability (3) 63.80
MWD Water Standby Charge (4) 73.42
Mosquito Surveillance (5) 3.00
Carlsbad CFD No. 1 Maximum Annual Special Tax - Developed Property (6) 6,802.36
Carlsbad CFD No. 3 Maximum Special Tax (7) 85,283.63
TOTAL FIXED CHARGES $93,382.13
(1) The City of Carlsbad Landscape and Lighting District No. 2, Zone 9 charges cover the lighting and median
landscaping. For fiscal year 2007-08 they are equal to $27.73 per EDU at a rate of 6 EDU per acre.
(2) San Diego County charges are equal to one half the residential single family rate of $5.95 per one fifth of an acre
for fiscal year 2007-08.
(3) The County Water Authority charges $10.00 per acre or a portion thereof for fiscal year 2007-08 to cover water
availability.
(4) The Metropolitan Water District charges are $11.51 per acre or a portion thereof for fiscal year 2007-08.
(5) Charges are $3.00 per parcel for the 2007-08 fiscal year.
(6) City of Carlsbad CFD No. 1 Maximum Annual Special Tax - Developed Property assuming a coverage factor of
20% producing 55,582 square feet of building, a permit issuance prior to March 1, 2007, a land use of
Commercial / Industrial Business Park and the decision at the time of permit issuance to pass through the
special tax for a period not-to-exceed 25 years. No vacant land tax was levied in CFD No. 1 for fiscal year 2007-
08.
(7) City of Carlsbad CFD No. 3 Improvement Area No. 2 Maximum Special Tax.
Source: Special District Financing and Administration
Overlapping Debt. The direct and overlapping debt obligations of local agencies
affecting the property in Improvement Area 2 as of 1, 2007 are shown in the following
table. The table was prepared by California Municipal Statistics, Inc., and is included for
general information purposes only. The City has not reviewed this report for completeness or
accuracy and makes no representation in connection therewith.
36
Table 2
City of Carlsbad
Community Facilities District No. 3
Improvement Area 2
Direct and Overlapping Governmental Obligations
[To Gomel
Source: California Municipal Statistics.
37
Market Absorption Study
The following is a summary of certain provisions of the Market Absorption Study, which
should be read in conjunction with the Market Absorption Study Summary and Conclusions
prepared by the Market Consultant attached as APPENDIX D. The City makes no
representation as to the accuracy or completeness of the Market Absorption Study.
Empire Economics, Inc., Capistrano Beach, California (the "Market Consultant"),
prepared a report entitled "Market Absorption Study" dated September 14, 2007 to estimate the
projected market absorption of industrial, research and development and office space proposed
to be constructed in Improvement Area 2 (the "Market Absorption Study").
With respect to Improvement Area 2, the Market Absorption Study summarized the
following characteristics of the parcels, their market orientations, their acreage, expected
development size and anticipated development time schedule (based on information provided
by Techbilt Construction), and reached the following absorption conclusions.
Development Description. Carlsbad Oaks North is composed of 167.13 taxable acres
and is proposed to be developed with industrial, research & development, office and corporate
office use as well as hotel and retail. The Market Absorption Study includes the following
description of Carlsbad Oaks North's market orientation, acreage, expected building size and
anticipated development time schedule:(1)
Improvement Area No. 2
(Carlsbad Oaks North)
Industrial / R&D Products
Developer
Time
Schedule
2009
2009
2009
2010
2010
2010
2010
2011
2012
2012
2012
2012
2012
2012
2012
Lot/
Bldg. #
Bldg. Sq. Ft.
1,315,900
63.0%
120-05
120-07
120-06
129,600
157,500
83,600
_ Phase II
13
17
18
19
14
164,500
104,500
68,300
55,800
145,000
Phaco III
20
21
22
23
25
26
27
32,100
50,200
48,800
61,300
107,300
53,000
54,400
Acres
94.4
63.1%
9.3
1.1.3
6.0
11.8
7.5
4.9
4.0
10.4
2.3
3.6
3.5
4.4
7.7
3.8
3.9
Office / Corporate / Retail
Developer
Time
Schedule
2009
2009
2009
2010
2011
2010
2010
2012
Lot/
Bldg. #
Pha
120-03
120-04
121-01
120-01
120-02
Bldg. Sq. Ft.
771,600
37.0%
S6 I
65,600
64,000
81,700
91,500
70,100
pu_-_ it
15
16
55,800
54,400
Pha
24
SO III
288,500
Acres
55.2
36.9%
4.3
4.2
7.5
6.0
4.6
4.0
3.9
20.7
(1> The Market Absorption Study analyzes 2,087,500 square feet of building space based on a theoretical building size
related to existing entitlements provided by Techbilt Construction which may not be the amount actually built in Improvement Area 2.
For example, Kilroy's current development plan for its property contemplates construction of 288,000 square feet of building space,
which is 82,700 square feet less than the theoretical building size provided by Techbilt Construction (370,700 square feet).
38
Absorption Conclusions. Subject to the assumptions and conditions set forth in the
Market Absorption Study, the Market Absorption Study outlines the following absorption
conclusions for Improvement Area 2:
Product
Type
Industrial/R&D
Office/hotel/
retail
Absorption
in 2009
(so. ft.)
100,000
50,000
Absorption
in 2010
(sa. ft.)
125,000
75,000
Absorption
in 2011
(sa. ft.)
150,000
100,000
Absorption
in 2012
tea, ft.)
175,000
125,000
Absorption
in 201 3
(sa. ft.)
175,000
125,000
Absorption
in 2014
(sa. ft.)
175,000
125,000
Absorption
in 2015
(sa. ft.)
175,000
125,000
Absorption
in 2016+
(sa. ft.)
240,900
46,600
The Market Consultant's absorption schedule anticipates approximately 86% build-out
by 2016 while Techbilt Construction projects reaching full build-out at the end of 2012. The
Market Consultant concludes the difference can be attributed to the Market Consultant (i)
forecasting lower economic growth and hence lower demand for industrial-office buildings and
(ii) considering all of the nearby business parks in the aggregate, as they compete with each
other in the marketplace.
The Appraisal considered the conclusions of the Market Absorption Study; however, the
Appraisal values the taxable property in Improvement Area 2 as finished lots, while the Market
Consultant estimated the absorption period to occupancy.
Appraised Property Value
The following is a summary of certain provisions of the Appraisal, which should be read
in conjunction with the full text of the Appraisal attached as APPENDIX C. The City makes no
representation as to the accuracy or completeness of the Appraisal.
The Appraisal. An appraisal of the Taxable Property within Improvement Area 2 dated
November 19, 2007 (the "Appraisal"), was prepared by Bruce Hull & Associates, Inc., Ventura,
California (the "Appraiser") in connection with issuance of the Bonds. The purpose of the
Appraisal was to estimate the market value of the fee simple estate of the property within
Improvement Area 2 that is subject to the Special Tax, i.e., the "Taxable Property" as defined in
the Rate and Method, as of November 10, 2007.
Conditions and Assumptions. The Appraisal was based on certain assumptions and
limiting conditions set forth in APPENDIX C, including the following:
1. The Appraisal assumes the property is subject to the lien of the Special Taxes
and easements of record, but is free and clear of any other liens or
encumbrances.
2. Title to the property is assumed to be good and marketable unless otherwise
stated in the Appraisal.
3. The Appraisal assumes all engineering is correct and that there are no hidden or
unapparent conditions of the property, subsoil, or structures that render the
property more or less valuable.
4. The Appraisal assumes that there is full compliance with all applicable federal,
state and local environmental regulations and laws, unless otherwise stated in
the Appraisal. The Appraisal assumes that all required licenses, certificates of
occupancy or other legislative or administrative authority from any local, state, or
national governmental or private organization have been or can be obtained or
39
renewed for any use on which the value estimates contained in the Appraisal are
based.
5. The Appraisal assumes that there is full compliance with all applicable zoning
and use regulations and restrictions, unless non-conformity has been identified in
the Appraisal.
6. The Appraiser assumes there is no hazardous waste or toxic materials on or in
the subject property that would cause a loss in value.
7. The Appraisal assumes that all of the improvements to be funded by the
Community Facilities District are completed and in place.
8. The Appraisal assumes that all conditions for approval are completed in a timely
manner so as not to slow or thwart development.
9. The Appraisal uses cost estimates from Techbilt Construction and assumes they
are complete and accurate.
10. The highest and best use of the subject property is development of the proposed
Carlsbad Oaks North Business Park.
11. The marketing and exposure time for the subject properties would be 12 months
if placed on the open market in today's market conditions at the concluded
market value, assuming the lien of the Special Taxes and assuming a sale in
bulk or one transaction on a property owner-by-property owner basis.
Valuation Methods. The Appraisal determined the price per square foot of the "net
acreage" or "net saleable area" (i.e., the pad area plus the required setback) of the subject
property in a finished lot condition.
The Appraisal incorporates two different methods for estimating the market value of
Taxable Property in Improvement Area 2:
• Sales Comparison Approach: this approach compares the subject property to
similar properties that have recently sold, are currently listed or are under
contract. To the extent the subject property is not in finished lot condition, the
sales comparison approach considers the costs required to develop the property
to finished lot condition and subtracts the total of those costs from the finished lot
value.
• Discounted Cash Flow Analysis: The Appraisal also used a discounted cash flow
analysis. A discounted cash flow analysis considers the finished lot value of the
property (using the sales comparison approach), the costs to develop the
property to finished lot condition, the absorption time needed to sell the property
in a finished lot condition and the administrative and carrying costs over that
period of time, the profit due to the developer, and a discount rate that takes into
account both the time value of money and the risk of the project.
Value Estimate. Subject to the various assumptions and conditions set forth in the
Appraisal, the Appraiser estimated that, as of the November 10, 2007 date of value, the fee
simple interest in the property within Improvement Area 2 owned by the Property Owners had
the following value:
40
Appraised
Property Owner Value d)
Techbilt Corporation / CONP $47,033,000
Kilroy 16.941.000
Total $63,974,000
(1) Appraised Value numbers have been rounded.
Appraised Value to Burden Ratio
The table below shows the projected value to burden ratio for the property in
Improvement Area 2 based on the appraised values set forth in the Appraisal and the principal
amount of the Bonds.
No assurance can be given that the amounts shown in this table will conform to those
ultimately realized in the event of a foreclosure action following delinquency in the payment of
the Special Taxes. See "BOND HOLDERS' RISKS - Property Values and Property
Development."
Table 3
City of Carlsbad
Community Facilities District No. 3
Improvement Area 2
Aggregate Appraised Values and Value to Burden Ratios on Non-Escrowed Bonds*
Number
Property
Owner
Techbilt/CONP (5)
Kilroy
TOTAL
of
Lots
19
4
23
Taxable
Acres
135.14
31.99
167.13
Maximum Special
Tax Levy
2007-08 '1)
$1,806,462.33
427.621.21
$2,234,083.53
% of Max. Special
Tax Levy
2007-08
80.86%
19.14
100.00%
Allocable Share
of Bonds* m
$11,757,044
2.782.956
$14,540,000
Appraised
Values ("
$47,033,000
16.941.000
$63,974,000
Value to Burden
Ratio* m
4.00
6.09
4.40
* Preliminary, Subject to Change.
(1) Source: Rate and Method.
(2) Reflects each Property Owner's share, based on the Maximum Special Taxes, of the maximum authorized indebtedness of
$18,340,000. Does not reflect the release of moneys initially deposited into the Escrow Fund.
(3) Source: Appraisal Report dated November 19, 2007.
(4) Appraised value divided by allocable share of Bonds. Does not include other liens and charges described in "Overlapping
Taxes, Charges and Assessments." Assumes release of moneys from the Escrow Fund to the Improvement Fund.
(5) Although Techbilt Construction and CONP are separate legal entities, their underlying ownership is the same and, accordingly,
their ownership interest has been aggregated for purposes of this table.
Source: Special District Financing and Administration
41
PROPERTY OWNERSHIP AND PROPOSED DEVELOPMENT
The information about the Property Owners and their respective properties and
proposed development contained in this Official Statement has been provided by
representatives of the respective entities and has not been independently confirmed or verified
by the Underwriter or the City. Neither the Underwriter nor the City makes any representation
as to the accuracy or adequacy of the information contained in this section. No assurance can
be given that the ownership of such properties will not change or that the proposed
development will occur at all, will occur in a timely manner or will occur as presently anticipated
and described below. There may be material adverse changes in this information after the date
of this Official Statement.
Property Ownership
The table below shows, for Improvement Area 2, a summary of current ownership.
Table 4
City of Carlsbad
Community Facilities District No. 3
Improvement Area 2
Property Ownership and
Share of Maximum Special Tax Lew
% of Max.
Maximum Special
Property Number of Taxable Special Tax Tax Levy
Owner (1) Lots Owned (2) Lots Owned Acreage Lew 2007-08 2007-08
Techbilt Construction/CONP 1-3,6,13-19,20-27 19 135.14 $1,806,462.33 80.86%
Kilroy 4,5,7, and 8 _4 31.99 427.621.21 19.14
Total 23 167.13 $2,234,083.53 100.00%
(1) Although Techbilt Construction and CONP are separate legal entities, their underlying ownership is the same and,
accordingly, their ownership interest has been aggregated for purposes of this table.
(2) Does not include lots 9, 10,11 and 12, which are presently reserved as open space.
Source: Special District Financing & Administration.
Proposed Development by Techbilt Construction
General. Techbilt Construction Corp. is a California corporation owned by four
shareholders: Paul and Rose Tchang Family Trust, Lorna Tchang Alcala Trust, Genevieve
Tchang Trust and Theodore Tchang Trust.
Carlsbad Oaks North Partners LP is a California limited partnership, the general partner
of which is Sun Tech Investments Corp., a California corporation, which is owned by the same
four shareholders as Techbilt Construction.
See "Development Experience" below.
Proposed Development. Techbilt Construction proposes construction of Carlsbad
Oaks North in three phases on 167.13 taxable acres. Carlsbad Oaks North is a master planned
commercial/industrial project totaling 23 buildable lots ranging in size from 2.0 acres to 20.7
acres. The lots are generally planned and zoned P-M, which allows for a wide range of uses,
42
including distribution/warehouse, industrial, manufacturing, office and corporate headquarters.
In addition, lots 1 and 2 are zoned to allow commercial/retail uses.
Techbilt Construction has completed constructing the infrastructure for Phase 1
(buildable lots 1-8) and all grading and infrastructure improvements are now complete except for
final asphalt lift and striping on El Fuerte Street and sewer lift station. On February 16, 2007,
Techbilt Construction delivered finished lots 4, 5, 7 and 8 (totaling 31.99 taxable acres) to Kilroy.
Phase 2 is currently under construction with scheduled completion in the second calendar
quarter of 2008. Phase 3 is planned to begin grading in the third calendar quarter of 2008 with
infrastructure planned to be finished by the second calendar quarter of 2009.
Techbilt Construction, which owns the Phase 1 and 2 properties (not including the lots
already sold to Kilroy as mentioned above) and has an option to acquire Phase 3 from CONP,
which is a related entity, has a development plan that is a combination marketing program of: (i)
sales of finished lots; (ii) construction and sale of product to end users; and (iii) construction of
buildings and leasing to end users for long-term holds.
The current and anticipated construction schedule and product mix for the portion of
Carlsbad Oaks North owned by Techbilt Construction and CONP is set forth below. Because of
the longer absorption period for Phases 2 and 3, the schedules do not reflect the anticipated
construction schedule or a decision as to whether Techbilt Construction will own or lease the
property. No assurance can be given that construction will be carried out on the schedule and
according to the plans outlined below, or that Techbilt Construction's construction and sale
plans will not change after the date of this Official Statement.
Proposed Product Mix and Construction and Sales Schedule
Phase 1
Current
Lot# Owner
1 Techbilt
Construction
2
3
6
Techbilt
Construction
Techbilt
Construction
Techbilt
Construction
Total:
APN# Proposed Use
209-120-01 Hotel
Net Saleable Taxable
Acres Acres
209-121-01 Retail
209-120-02 Office/headquarters
209-120-05 Industrial/Flex/R&D
6.0
7.5
4.6
9.3
27.4
6.38
7.52
5.18
11.55
30.63
Building
Area
(sq. ft.) Status
91,500 Non-binding letter of
intent from Marriott
International, Inc. for
purchase
81,700 In negotiations w/ retail
partner
Presently undecided70,100
129.600 Design development
underway; for lease
372,900
43
Proposed Product Mix and Construction and Sales Schedule
Phase 2 (1)
Lot# Current Owner
13 Techbilt Construction
Proposed Use
Industrial/Flex/R&D
14 Techbilt Construction Industrial/Flex/R&D
15 Techbilt Construction
16 Techbilt Construction
17 Techbilt Construction
18 Techbilt Construction
19 Techbilt Construction
Total
Office/headquarters
Office/headquarters
Industrial/Flex/R&D
Industrial/Flex/R&D
Industrial/Flex/R&D
Net Saleable Taxable
Acres Acres
11.8 13.28
10.4
4.0
3.9
7.5
4.9
4.0
46.5
11.77
4.06
4.09
8.03
5.10
4.18
50.51
Building Area
tea, ft.)
164,500
145,000
55,800
54,400
104,500
68,300
55.800
648,300
Expected Final Lot
Completion Date
Spring 2008; lot/build-
to-suit for sale
Spring 2008; lot/build-
to-suit for sale
Spring 2008
Spring 2008
Spring 2008; lot/build-
to-suit for sale
Spring 2008
Spring 2008
(1) Techbilt Construction completed grading in September 2007, and expects to finish infrastructure improvements by the second
calendar quarter of 2008.
(2) But see "IMPROVEMENT AREA 2 - Market Absorption Study" above for the Market Consultant's differing view on overall timing
and absorption of the project.
Proposed Product Mix and Construction and Sales Schedule
Phase 3(1)
Lot#
20
21
22
23
24
25
26
27
Total
Current Owner
CONP
CONP
CONP
CONP
CONP
CONP
CONP
CONP
Proposed Use
Industrial/Flex/R&D
Industrial/Flex/R&D
Industrial/Flex/R&D
Industrial/Flex/R&D
Headquarters/R&D
Industrial/Flex/R&D
Industrial/Flex/R&D
Industrial/Flex/R&D
Net Saleable
Acres
2.3
3.6
3.5
4.4
20.7
7.7
3.8
3.9
Taxable
Acres
2.6
4.3
4.0
4.7
20.8
8.9
4.2
4.5
Building Area
(sa. ft.)
32,100
50,200
48,800
61,300
288,500
107,300
53,000
54.400
49.9 54.0 695,600
Expected Final Lot
Completion Date
Spring 2009
Spring 2009
Spring 2009
Spring 2009
Spring 2009
Spring 2009
Spring 2009
Spring 2009
(1) Techbilt Construction expects to complete grading in February 2008, and expects to finish infrastructure improvements
by the second calendar quarter of 2009.
(2) But see "IMPROVEMENT AREA 2 - Market Absorption Study" above for the Market Consultant's differing view on overall
timing and absorption of the project.
The Market Consultant's absorption schedule anticipates approximately 86% build-out
by 2016 while Techbilt Construction projects reaching full build-out at the end of 2012. The
Market Consultant concludes the difference can be attributed to the Market Consultant (i)
forecasting lower economic growth and hence lower demand for industrial-office buildings and
(ii) considering all of the nearby business parks in the aggregate, as they compete with each
other in the marketplace. See "IMPROVEMENT AREA 2 - Market Absorption Study" above.
Financing Plan. Techbilt Construction expects to finance building construction with a
combination of the line of credit from City National Bank and shareholder contributions, as
described in "Infrastructure Development" above. No assurance can be given that these
sources of financing will continue to be available and, if available, will be sufficient to complete
property development and project construction as currently anticipated.
44
Development Experience. During calendar year 2005, Techbilt Construction
developed 40 acres of land and built 175,000 square feet of buildings in Poway, California. In
calendar year 2006 and through October 2007, Techbilt Construction has developed over
270,000 square feet of new office and industrial buildings in Poway and Carlsbad. In addition to
its commercial and industrial development operations, Techbilt Construction is building
approximately 20-25 homes a year in the Emerald Cove community of the La Jolla Alta master
planned development and is also building approximately 3-4 custom homes per year in the
Rancho Santa Fe area. The price range of its homes is currently $1.3-2.5 million.
Techbilt Construction and CONP are part of the Techbilt Companies family of real estate
businesses owned by the Tchang family. Techbilt Construction was incorporated in 1960, but
the first company of the Techbilt Companies was incorporated in 1957. The Techbilt
Companies have developed and built approximately 10,000 homes throughout Southern
California including the communities of Lomas Santa Fe, the Lomas Santa Fe Country Club,
and La Jolla Alta. In addition the Techbilt Companies have developed the 180-acre Carlsbad
Oaks and Carlsbad Oaks East Business Parks, the 86-acre Poway Corporate Center and
Poway Tech Center business parks, and the 108-acre Tech Business Center business park in
Poway. Corporate occupants of the Techbilt Construction developed business parks include
Costco, Home Depot, Bilstein, Atlas Van Lines, Upper Deck, Pacificare, Disguise, Ferguson
Waterworks, Rollins Co., and Kone Elevator. In addition to their business park land
developments, Techbilt Construction has also built and currently owns 10 light industrial and
office buildings in Poway and Carlsbad and has another 8 buildings totaling approximately
250,000 square feet under planning and construction. The Techbilt Companies currently own
and manage approximately 375,000 square feet of leased office and industrial space.
Techbilt Construction reports that, in its 50 year history of developing land, building
homes, and building industrial buildings, there has never been a valid mechanics' lien or lien
default filed on any Techbilt project or property.
History of Property Tax Payments; Loan Defaults; Bankruptcy. Techbilt
Construction and CONP have represented as follows:
Techbilt Construction and CONP have never defaulted to any material extent in
the payment of special taxes or assessments in connection with the Community Facilities
District or any other community facilities districts or assessment districts in California within the
past five years.
Techbilt Construction and CONP are not currently in default on any loans, lines
of credit or other obligation, the result of which could materially adversely affect the
development of property owned by the Techbilt Construction and CONP in Improvement Area 2.
Techbilt Construction and CONP are solvent and no proceedings are pending or,
to the actual knowledge of Techbilt Construction and CONP, threatened in which Techbilt
Construction or CONP may be adjudicated as bankrupt or become the debtor in a bankruptcy
proceeding, or discharged from all of its respective debts or obligations, or granted an extension
of time to pay its respective debts or a reorganization or readjustment of its respective debts.
45
There is no litigation or administrative proceeding of any nature in which Techbilt
Construction and CONP have been served, or is pending or threatened against Techbilt
Construction and CONP which, if successful, would materially adversely affect the ability of the
Techbilt Construction and CONP to complete the development and sale of its property within
Improvement Area 2, or to pay the Special Taxes or ordinary ad valorem property tax
obligations when due on its property within Improvement Area 2, or which challenges or
questions the validity or enforceability of the Bonds, the Resolution of Issuance, the Fiscal
Agent Agreement, The Property Owner Continuing Disclosure Certificate (for and on behalf of
Techbilt Construction and CONP) or the Bond Purchase Contract.
Proposed Development by Kilroy
General. On February 16, 2007, Techbilt Construction sold a portion of the completed
lots it owned in Phase 1 (approximately 31.99 taxable acres) to Kilroy. The terms of the sale by
Techbilt Construction to Kilroy included a $2 million holdback pending completion of
infrastructure improvements by Techbilt Construction. Fifty percent of the holdback has been
released and the remainder will be released upon completion of the sewer pump station and
opening of El Fuerte Street, which is scheduled to occur in first quarter 2008.
Kilroy Realty Finance Partnership, L.P., is a limited partnership organized in the state of
Delaware. Kilroy Realty Finance, Inc., a Delaware corporation, is its general partner and Kilroy
Realty, L.P., a Delaware limited partnership, is its limited partner. Kilroy Realty Finance, Inc. is
a wholly-owned subsidiary of Kilroy Realty Corporation, a Delaware Corporation. (See
"Development Experience" below").
Proposed Development Kilroy purchased Lots 4, 5, 7 and 8 from Techbilt
Construction for the purposes of constructing office buildings for lease to end-users. Kilroy
anticipates beginning construction on Lots 4 and 5 prior to the end of 2010, with construction to
be completed within two years thereafter. Kilroy presently plans on beginning construction on
Lots 7 and 8 following completion and lease up of buildings on Lots 4 and 5. The size of the
proposed buildings has not yet been determined, but Kilroy presently anticipates they will
contain approximately 288,000 square feet in the aggregate.
Proposed Product Mix and Construction and Sales Schedule
Current Net Saleable Taxable
Lot#
4
5
7
8
Total
Owner
Kilroy
Kilroy
Kilroy
Kilroy
APN#
209-120-03
209-120-04
209-120-06
209-120-07
Proposed Use
Office/headquarters
Office/headquarters
Office/headquarters
Office/headquarters
Acres
4.3
4.2
6.0
11.3
25.8
Acres
5.98
5.24
7.57
13.20
31.99
Status (1)
Conceptual Planning underway
Conceptual Planning underway
Conceptual Planning underway
Conceptual Planning underway
(1) See "IMPROVEMENT AREA 2 - Market Absorption Study" above for the Market Consultant's view on overall timing and
absorption of the project.
Financing Plan. Kilroy purchased its 31.99 Taxable Acres with cash and the property
presently remains unencumbered by any outstanding liens. Kilroy is currently in the process of
planning its improvements and estimating site and building construction costs. Kilroy expects to
finance such costs with an existing $550 million credit facility, which is led by JP Morgan. This
46
credit facility is a corporate, unsecured line of credit in the name of Kilroy Realty, L.P., but Kilroy
expects the credit facility will be available to it to finance development of its property in
Improvement Area 2. No assurance can be given that these sources of financing will continue
to be available and, if available, will be sufficient to complete property development and project
construction as currently anticipated.
Development Experience. Kilroy Realty Finance, L.P. and Kilroy Realty Finance, Inc.
are related entities to Kilroy Realty Corporation which is the successor in interest to Kilroy
Industries. Kilroy Industries and its related entities have for over 60 years owned, operated,
developed, and acquired Class A suburban office and industrial real estate, primarily in
Southern California. Kilroy Realty Corporation was founded in 1947 by John Kilroy, Sr., the
company's chairman, and today focuses its operations in several of southern California's
suburban submarkets, where local economies, an attractive quality of life, and strong barriers to
entry provide strategic advantages to long-term real estate investment.
Since January 1997, Kilroy Realty Corporation has operated as a publicly traded, self-
administered and self-managed real estate investment trust. The company's stabilized portfolio
of operating properties as of September 30, 2007 totaled 89 office buildings and 43 industrial
buildings, encompassing in the aggregate approximately 8.6 million and 3.9 million rentable
square feet, respectively. Kilroy Realty Corporation conceived and developed the majority of
the properties in its current portfolio and maintains an active development program.
History of Property Tax Payments; Loan Defaults; Bankruptcy. Kilroy has
represented as follows:
Kilroy has not defaulted to any material extent in the payment of special taxes or
assessments in connection with the Community Facilities District or any other community
facilities districts or assessment districts in California within the past five years.
Kilroy is not currently in default on any loans, lines of credit or other obligation,
the result of which could materially adversely affect the development of property owned by
Kilroy in Improvement Area 2.
Kilroy is solvent and no proceedings are pending or, to the actual knowledge of
Kilroy, threatened in which Kilroy may be adjudicated as bankrupt or become the debtor in a
bankruptcy proceeding, or discharged from all of its respective debts or obligations, or granted
an extension of time to pay its respective debts or a reorganization or readjustment of its
respective debts.
There is no litigation or administrative proceeding of any nature in which Kilroy
has been served, or is pending or threatened against Kilroy which, if successful, would
materially adversely affect the ability of Kilroy to complete the development and sale of its
property within Improvement Area 2, or to pay the Special Taxes or ordinary ad valorem
property tax obligations when due on its property within Improvement Area 2, or which
challenges or questions the validity or enforceability of the Bonds, the Resolution of Issuance,
the Fiscal Agent Agreement, Kilroy's Property Owner Continuing Disclosure Certificate or the
Bond Purchase Contract.
BOND OWNERS' RISKS
The purchase of the Bonds described in this Official Statement involves a degree of risk
that may not be appropriate for some investors. The following includes a discussion of some of
the risks, in no particular order of importance, which should be considered before making an
investment decision.
Limited Obligation of the City to Pay Debt Service
The City has no obligation to pay principal of and interest on the Bonds if Special Tax
collections are insufficient for that purpose, other than from amounts, if any, on deposit in the
Reserve Fund. The City is not obligated to advance its own funds to pay debt service on the
Bonds.,
Levy and Collection of the Special Tax
The principal source of payment of principal of and interest on the Bonds is the proceeds
of the annual levy and collection of the Special Tax against property within Improvement Area 2.
The annual levy of the Special Tax is subject to the Maximum Annual Special Tax rate
authorized in the Rate and Method. The levy cannot be made at a higher rate even if the failure
to do so means that the estimated proceeds of the levy and collection of the Special Tax,
together with other available funds, will not be sufficient to pay debt service on the Bonds.
Because the Special Tax formula set forth in the Rate and Method is not based on
property value, the levy of the Special Tax will rarely, if ever, result in a uniform relationship
between the value of particular parcels of Taxable Property and the amount of the levy of the
Special Tax against those parcels. Thus, there will rarely, if ever, be a uniform relationship
between the value of the parcels of Taxable Property and their proportionate share of debt
service on the Bonds, and certainly not a direct relationship.
The following are some of the factors that might cause the levy of the Special Tax on
any particular parcel of Taxable Property to vary from the Special Tax that might otherwise be
expected:
• Reduction in the number of parcels of Taxable Property for such reasons as
acquisition of Taxable Property by a governmental entity and failure of the government to pay
the Special Tax based upon a claim of exemption or, in the case of the federal government or
federal agency, immunity from taxation, thereby resulting in an increased tax burden on the
remaining taxed parcels.
Failure of the owners of Taxable Property to pay the Special Tax and delays in
the collection of or inability to collect the Special Tax by tax sale or foreclosure and sale of the
delinquent parcels, thereby resulting in an increased tax burden on the remaining parcels.
Development of other parcels of Taxable Property less rapidly than expected,
thereby resulting in delay in application of development factors in the Special Tax formula to the
other parcels of Taxable Property and resulting in an increased tax burden on the parcel of
Taxable Property.
Except as set forth above under "SECURITY FOR THE BONDS - Special Taxes" and " -
Rate and Method," the Fiscal Agent Agreement provides that the Special Tax is to be collected
in the same manner as ordinary ad valorem property taxes are collected and, except as
provided in the special covenant for foreclosure described in "SECURITY FOR THE BONDS -
Covenant to Foreclose" and in the Act, is subject to the same penalties and the same
procedure, sale and lien priority in case of delinquency as is provided for ordinary ad valorem
property taxes. Under these procedures, if taxes are unpaid for a period of five years or more,
the property is subject to sale by the County.
If sales or foreclosures of property are necessary, there could be a delay in payments to
owners of the Bonds pending such sales or the prosecution of foreclosure proceedings and
receipt by the City of the proceeds of sale if the Reserve Fund is depleted. See "SECURITY
FOR THE BONDS - Covenant to Foreclose."
Payment of Special Tax is not a Personal Obligation of Property Owners
An owner of Taxable Property is not personally obligated to pay the Special Tax.
Rather, the Special Tax is an obligation only against the parcels of Taxable Property. If, after a
default in the payment of the Special Tax and a foreclosure sale by the City, the resulting
proceeds are insufficient to pay the delinquent Special Taxes, taking into account other
obligations also constituting a lien against the parcels of Taxable Property, the City has no
recourse against the owner.
Appraised Values
The Appraisal attached in APPENDIX C estimates the market value of the taxable
property within Improvement Area 2. This market value is merely the present opinion of the
Appraiser, and is subject to the assumptions and limiting conditions stated in the Appraisal. The
City has not sought the present opinion of any other appraiser of the value of the taxed parcels.
A different present opinion of value might be rendered by a different appraiser.
The opinion of value relates to sale by a willing seller to a willing buyer, each having
similar information and neither being forced by other circumstances to sell or to buy.
Consequently, the opinion is of limited use in predicting the selling price at a foreclosure sale,
because the sale is forced and the buyer may not have the benefit of full information.
In addition, the opinion is a present opinion, based upon present facts and
circumstances. Differing facts and circumstances may lead to differing opinions of value. The
appraised value is not evidence of future value because future facts and circumstances may
differ significantly from the present.
No assurance can be given that any of the Taxable Property in Improvement Area 2
could be sold for the estimated market value contained in the Appraisal if that property should
become delinquent in the payment of Special Taxes and be foreclosed upon.
Property Values and Property Development
The value of Taxable Property within Improvement Area 2 is a critical factor in
determining the investment quality of the Bonds. If a property owner defaults in the payment of
the Special Tax, the City's only remedy is to foreclose on the delinquent property in an attempt
to obtain funds with which to pay the delinquent Special Tax. Land development and land
values could be adversely affected by economic and other factors beyond the City's control,
such as a general economic downturn, adverse judgments in future litigation that could affect
49 7/
the scope, timing or viability of development, relocation of employers out of the area, stricter
land use regulations, shortages of water, electricity, natural gas or other utilities, destruction of
property caused by earthquake, flood or other natural disasters, environmental pollution or
contamination, or unfavorable economic conditions.
The City has not evaluated development risks. Since these are largely business risks of
the type that property owners customarily evaluate individually, and inasmuch as changes in
land ownership may well mean changes in the evaluation with respect to any particular parcel,
the City is issuing the Bonds without regard to any such evaluation. Thus, the creation of
Improvement Area 2 and the issuance of the Bonds in no way implies that the City has
evaluated these risks or the reasonableness of these risks.
The following is a discussion of specific risk factors that could affect the timing or scope
of property development in Improvement Area 2 or the value of property in Improvement Area 2.
Land Development. Land values are influenced by the level of development in the area
in many respects.
First, undeveloped or partially developed land is generally less valuable than developed
land and provides less security to the owners of the Bonds should it be necessary for the City to
foreclose on undeveloped or partially developed property due to the nonpayment of Special
Taxes.
Second, failure to complete development on a timely basis could adversely affect the
land values of those parcels that have been completed. Lower land values would result in less
security for the payment of principal of and interest on the Bonds and lower proceeds from any
foreclosure sale necessitated by delinquencies in the payment of the Special Tax. See
"IMPROVEMENT AREA 2 - Appraised Value to Burden Ratios." No assurance can be given
that the proposed development within Improvement Area 2 will be completed, and in assessing
the investment quality of the Bonds, prospective purchasers should evaluate the risks of
noncompletion.
Risks of Real Estate Investment Generally. Continuing development of land within
Improvement Area 2 may be adversely affected by changes in general or local economic
conditions, fluctuations in or a deterioration of the real estate market, increased construction
costs, development, financing and marketing capabilities of individual property owners, water or
electricity shortages, and other similar factors. Development in Improvement Area 2 may also
be affected by development in surrounding areas, which may compete with Improvement Area
2. In addition, land development operations are subject to comprehensive federal, state and
local regulations, including environmental, land use, zoning and building requirements. There
can be no assurance that proposed land development operations within Improvement Area 2
will not be adversely affected by future government policies, including, but not limited to,
governmental policies to restrict or control development, or future growth control initiatives.
There can be no assurance that land development operations within Improvement Area 2 will
not be adversely affected by these risks.
Disasters. The value of the Taxable Property in the future can be adversely affected by
a variety of natural occurrences, particularly those that may affect infrastructure and other public
improvements and private improvements on the Taxable Property and the continued habitability
and enjoyment of such private improvements. For example, areas in and surrounding
Improvement Area 2, like those in much of California, may be subject to unpredictable seismic
activity and periodic wildfires. See "IMPROVEMENT AREA 2 - Environmental Conditions."
Other natural disasters could include, without limitation, landslides, floods, droughts or
tornadoes. One or more natural disasters could occur and could result in damage to
improvements of varying seriousness. The damage may entail significant repair or replacement
costs and that repair or replacement may never occur either because of the cost, or because
repair or replacement will not facilitate habitability or other use, or because other considerations
preclude such repair or replacement. Under any of these circumstances there could be
significant delinquencies in the payment of Special Taxes, and the value of the Taxable
Property may well depreciate or disappear.
Improvement Area 2 is located near the eastern end of the McClellan-Palomar Airport
Runway and is subject to periodic overflight. An airplane accident could result in damage to
improvements, reduce occupancy rates and adversely impact the value of Taxable Property.
Legal Requirements. Other events that may affect the value of Taxable Property
include changes in the law or application of the law. Such changes may include, without
limitation, local growth control initiatives, and similar changes to land use laws and regulations
applicable to the Taxable Propertylocal utility connection moratoriums and local application of
statewide tax and governmental spending limitation measures.
Hazardous Substances. One of the most serious risks in terms of the potential
reduction in the value of Taxable Property is a claim with regard to a hazardous substance. In
general, the owners and operators of Taxable Property may be required by law to remedy
conditions of the parcel relating to releases or threatened releases of hazardous substances.
The federal Comprehensive Environmental Response, Compensation and Liability Act of 1980,
sometimes referred to as "CERCLA" or the "Superfund Act," is the most well-known and widely
applicable of these laws, but California laws with regard to hazardous substances are also
stringent and similar. Under many of these laws, the owner or operator is obligated to remedy a
hazardous substance condition of property whether or not the owner or operator has anything to
do with creating or handling the hazardous substance. The effect, therefore, should any of the
Taxable Property be affected by a hazardous substance, is to reduce the marketability and
value of the parcel by the costs of remedying the condition, because the purchaser, upon
becoming owner, will become obligated to remedy the condition just as is the seller.
As described in "IMPROVEMENT AREA 2 - Appraised Property Value," the Appraisal
assumes that no toxic waste or groundwater contamination problems exist on the property.
Accordingly, the Appraisal does not take into account the possible reduction in marketability and
value of any of the Taxable Property by reason of the possible liability of the owner or operator
for the remedy of a hazardous substance condition of the parcel. Although the City is not aware
that the owner or operator of any of the Taxable Property has such a current liability with
respect to any of the Taxable Property, it is possible that such liabilities do currently exist and
that the City is not aware of them.
Further, it is possible that liabilities may arise in the future with respect to any of the
Taxable Property resulting from the existence, currently, on the parcel of a substance presently
classified as hazardous but that has not been released or the release of which is not presently
threatened, or may arise in the future resulting from the existence, currently on the parcel of a
substance not presently classified as hazardous but that may in the future be so classified.
Further, such liabilities may arise not simply from the existence of a hazardous substance but
from the method of handling it. All of these possibilities could significantly affect the value of
Taxable Property that is realizable upon a delinquency. See "IMPROVEMENT AREA 2 -
Environmental Conditions."
Endangered and Threatened Species. It is illegal to harm or disturb any plants or
animals in their habitat that have been listed as endangered species by the United States Fish &
Wildlife Service under the Federal Endangered Species Act or by the California Fish & Game
Commission under the California Endangered Species Act without a permit. Although the
Property Owners believe that no federally listed endangered or threatened species would be
affected by the proposed development within Improvement Area 2 without a permit, the
discovery of an endangered plant or animal could delay development of vacant property in
Improvement Area 2 or reduce the value of undeveloped property. See "IMPROVEMENT
AREA 2 - Environmental Conditions."
Water Availability
The development of the land within Improvement Area 2 is dependent upon the
availability of water. Improvement Area 2 will receive its water from the Carlsbad Municipal
Water District who in turn purchases 100% of its water from the San Diego County Water
Authority. The San Diego County Water Authority partly obtains its water from the Colorado
River and partly from the State Water Project, which imports water to Southern California from
Northern California rivers.
There is currently a case pending in Federal District Court in Fresno, California, in which
environmental groups are alleging violations of environmental laws and that the alleged
violations may jeopardize the Sacramento Delta smelt's survival and recovery or adversely
affect the smelt's critical Sacramento Delta habitat. In connection with the foregoing, on August
31, 2007, the Federal Court ordered the following: (1) year-round monitoring actions that fully
implement all current surveys that are being conducted for the Delta smelt; (2) increase in the
frequency of sampling for entrained fish at certain protective facilities; (3) modifications of
project operations; (4) prohibition on the installation of tidal operations of three South Delta
agricultural barriers from late winter to early summer; (5) prohibition on the installation of the
Head of Old River Barrier from late winter to early summer; (6) modification in the seven-day
running average of upstream Old and Middle River flows; and (7) implementation of the Vernalis
Adaptive Management Plan. This decision may adversely impact the ability of the State Water
Project to supply Northern California river water to Southern California cities, which would limit
availability of the water supply to the District. Shortage of water could negatively affect the
economy of Southern California and the City and could adversely impact development in
Improvement Area 2.
Concentration of Property Ownership
As of the date of issuance of the Bonds, three entities own all of the Taxable Property in
Improvement Area 2. Because Techbilt Construction and CONP share common ownership
interests, the Appraisal aggregates their property for valuation purposes.
Failure of these Property Owners to pay installments of the Special Tax when due could
result in the depletion of the Reserve Fund prior to reimbursement from the resale of foreclosed
property or payment of the delinquent Special Tax and, consequently, an insufficiency of
Special Tax proceeds to meet obligations under the Fiscal Agent Agreement. In that event,
there could be a delay or failure in payments of the principal of and interest on the Bonds.
52
Failure of the Property Owners to complete development as proposed on their property in
Improvement Area 2 for any reason could increase the chances that they would not pay
installments of Special Taxes when due see "- Property Values and Property Development"
above.
Other Possible Claims Upon the Value of Taxable Property
While the Special Taxes are secured by the Taxable Property, the security only extends
to the value of such Taxable Property that is not subject to priority and parity liens and similar
claims.
The table in the section entitled "IMPROVEMENT AREA 2 - Direct and Overlapping
Governmental Obligations" shows the presently outstanding amount of governmental
obligations (with stated exclusions), the tax or assessment for which it is or may become an
obligation of one or more of the parcels of Taxable Property. The table also states the
additional amount of general obligation bonds the tax for which, if and when issued, may
become an obligation of one or more of the parcels of Taxable Property. The table does not
specifically identify which of the governmental obligations are secured by liens on one or more
of the parcels of Taxable Property.
In addition, other governmental obligations may be authorized and undertaken or issued
in the future, the tax, assessment or charge for which may become an obligation of one or more
of the parcels of Taxable Property and may be secured by a lien on a parity with the lien of the
Special Tax securing the Bonds.
In general, as long as the Special Tax is collected on the County tax roll, the Special Tax
and all other taxes, assessments and charges also collected on the tax roll are on a parity, that
is, are of equal priority. Questions of priority become significant when collection of one or more
of the taxes, assessments or charges is sought by some other procedure, such as foreclosure
and sale. In the event of proceedings to foreclose for delinquency of Special Taxes securing
the Bonds, the Special Tax will be subordinate only to existing prior governmental liens, if any.
Otherwise, in the event of such foreclosure proceedings, the Special Taxes will generally be on
a parity with the other taxes, assessments and charges, and will share the proceeds of such
foreclosure proceedings on a pro-rata basis. Although the Special Taxes will generally have
priority over non-governmental liens on a parcel of Taxable Property, regardless of whether the
non-governmental liens were in existence at the time of the levy of the Special Tax or not, this
result may not apply in the case of bankruptcy. See "- Bankruptcy and Foreclosure Delays"
below.
Special Tax Revenues include proceeds of a foreclosure sale and, therefore, if amounts
held under the Fiscal Agent Agreement are not sufficient to pay debt service on the Bonds and
delinquencies in Special Tax payments by property owners have occurred, owners of the Bonds
will be paid following foreclosure of the lien in respect of the delinquent Special Taxes from
Special Tax Revenues, if any, collected in any such foreclosure action.
53
Exempt Properties
Certain properties are exempt from the Special Tax in accordance with the Rate and
Method and the Act, which provides that properties or entities of the state, federal or local
government are exempt from the Special Tax; provided, however, that property within
Improvement Area 2 acquired by a public entity through a negotiated transaction or by gift or
devise, which is not otherwise exempt from the Special Tax, will continue to be subject to the
Special Tax. See "SECURITY FOR THE BONDS - Rate and Method." In addition, although the
Act provides that if property subject to the Special Tax is acquired by a public entity through
eminent domain proceedings, the obligation to pay the Special Tax with respect to that property
is to be treated as if it were a special assessment, the constitutionality and operation of these
provisions of the Act have not been tested, meaning that such property could become exempt
from the Special Tax.
The Act further provides that no other properties or entities are exempt from the Special
Tax unless the properties or entities are expressly exempted in a resolution of consideration to
levy a new special tax or to alter the rate or method of apportionment of an existing special tax.
Depletion of Reserve Fund
The Reserve Fund is to be maintained at an amount equal to the Reserve Requirement.
See "SECURITY FOR THE BONDS - Reserve Fund." Funds in the Reserve Fund may be used
to pay principal of and interest on the Bonds if insufficient funds are available from the proceeds
of the levy and collection of the Special Tax against property within Improvement Area 2. If
funds in the Reserve Fund for the Bonds are depleted, the funds can be replenished from the
proceeds of the levy and collection of the Special Tax that are in excess of the amount required
to pay all amounts to be paid to the Bond holders pursuant to the Fiscal Agent Agreement.
However, no replenishment from the proceeds of a Special Tax levy can occur as long as the
proceeds that are collected from the levy of the Special Tax against property within
Improvement Area 2 at the maximum Special Tax rates, together with other available funds,
remains insufficient to pay all such amounts. Thus it is possible that the Reserve Fund will be
depleted and not be replenished by the levy of the Special Tax.
Bankruptcy and Foreclosure Delays
Bankruptcy. The payment of the Special Tax and the ability of the City to foreclose the
lien of a delinquent unpaid tax, as discussed in "SECURITY FOR THE BONDS," may be limited
by bankruptcy, insolvency or other laws generally affecting creditors' rights or by the laws of the
State of California relating to judicial foreclosure. The various legal opinions to be delivered
concurrently with the delivery of the Bonds (including Bond Counsel's approving legal opinion)
will be qualified as to the enforceability of the various legal instruments by bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting creditors' rights, by the
application of equitable principles and by the exercise of judicial discretion in appropriate cases.
Although bankruptcy proceedings would not cause the Special Taxes to become
extinguished, bankruptcy of a property owner or any other person claiming an interest in
property subject to the Special Taxes could result in a delay in superior court foreclosure
proceedings and could result in the possibility of Special Tax installments not being paid in part
or in full. Such a delay would increase the likelihood of a delay or default in payment of the
principal of and interest on the Bonds. To the extent that property in Improvement Area 2
continues to be owned by a limited number of property owners, the chances are increased that
54
the Reserve Fund established for the Bonds could be fully depleted during any such delay in
obtaining payment of delinquent Special Taxes. As a result, sufficient moneys would not be
available in the Reserve Fund for transfer to the Bond Fund to make up shortfalls resulting from
delinquent payments of the Special Tax and thereby to pay principal of and interest on the
Bonds on a timely basis.
Property Owned by FDIC. In addition, the ability of the City to foreclose upon the lien
on property for delinquent Special Taxes may be limited for properties in which the Federal
Deposit Insurance Corporation (the "FDIC") has an interest. On November 26, 1996, the FDIC
adopted a Statement of Policy Regarding the Payment of State and Local Property Taxes (the
"Policy Statement") (which superseded a prior statement issued by the FDIC and the
Resolution Trust Corporation in 1991). The Policy Statement applies to the FDIC when it is
liquidating assets in its corporate and receivership capacities. The Policy Statement provides,
in part, that real property of the FDIC is subject to state and local real property taxes if those
taxes are assessed according to the property's value, and that the FDIC is immune from ad
valorem real property taxes assessed on other bases. The Policy Statement also provides that
the FDIC will pay its proper tax obligations when they become due and will pay claims for
delinquencies as promptly as is consistent with sound business practice and the orderly
administration of the institution's affairs, unless abandonment of the FDIC interest in the
property is appropriate. It further provides that the FDIC will pay claims for interest on
delinquent property taxes owned at the rate provided under state law, but only to the extent the
interest payment obligation is secured by a valid lien. The FDIC will not pay for any fines or
penalties and will not pay nor recognize liens for such amounts. The Policy Statement also
provides that if any property taxes (including interest) on FDIC-owned property are secured by a
valid lien (in effect before the property became owned by the FDIC), the FDIC will pay those
claims. No property of the FDIC is subject to levy, attachment, garnishment, foreclosure or sale
without the FDIC's consent. In addition, a lien for taxes and interest may attach, but the FDIC
will not permit a lien or security interest held by the FDIC to be eliminated by foreclosure without
the FDIC's consent.
With respect to challenges to assessments, the Policy Statement provides: "The (FDIC)
is only liable for state and local taxes which are based on the value of the property during the
period for which the tax is imposed, notwithstanding the failure of any person, including prior
record owners, to challenge an assessment under the procedures available under state law. In
the exercise of its business judgment, the (FDIC) may challenge assessments which do not
conform with the statutory provisions, and during the challenge may pay tax claims based on
the assessment level deemed appropriate, provided such payment will not prejudice the
challenge. The (FDIC) will generally limit challenges to the current and immediately preceding
taxable year and to the pursuit of previously filed tax protests. However, the (FDIC) may, in the
exercise of its business judgment, challenge any prior taxes and assessments provided that (1)
the (FDIC's) records (including appraisals, offers or bids received for the purchase of the
property, etc.) indicate that the assessed value is clearly excessive, (2) a successful challenge
will result in a substantial savings to the (FDIC), (3) the challenge will not unduly delay the sale
of the property, and (4) there is a reasonable likelihood of a successful challenge."
The Policy Statement states that the FDIC generally will not pay non-ad valorem taxes,
including special assessments, on property in which it has a fee simple interest unless the
amount of tax is fixed at the time the FDIC acquires its fee simple interest in the property, nor
will the FDIC recognize the validity of any lien to the extent it purports to secure the payment of
any such amounts. Because the Special Taxes are neither ad valorem taxes nor special
assessments, and because they are levied under a special tax formula under which the amount
of the Special Tax is determined each year, the Special Taxes appear to fall within the category
of taxes the FDIC generally will not pay under the Policy Statement.
Following the County of Orange bankruptcy proceedings filed in December 1994, the
FDIC filed claims against the County of Orange in the U.S. Bankruptcy Court and the Federal
District Court which challenged special taxes that Orange County had levied on FDIC-owned
property (and which the FDIC had paid) under the Act. The FDIC took a position similar to that
outlined in the Policy Statement, to the effect that the FDIC, as a governmental entity, is exempt
from special taxes under the Act. The Bankruptcy Court agreed, finding that the FDIC was not
liable for post-receivership Mello-Roos taxes, and the Bankruptcy Appellate Panel affirmed. On
appeal, the U.S. Court of Appeals for the Ninth Circuit, while not specifically asked to decide on
the issue, stated in its decision filed on August 28, 2001, that "the FDIC, as a federal agency, is
exempt from the Mello-Roos tax," and quoted Section 53340(c) of the Act in stating that
"'properties or entities' of the federal government are exempt from the tax."
The City is unable to predict what effect the application of the Policy Statement, or the
ultimate outcome of the County of Orange case, would have in case of a Special Tax
delinquency on a parcel in which the FDIC has an interest. However, prohibiting the judicial
foreclosure sale of a FDIC-owned parcel would likely reduce the number of or eliminate the
persons willing to purchase a parcel at a foreclosure sale. Owners of the Bonds should assume
that the City will be unable to foreclose on parcels of land in Improvement Area 2 owned by the
FDIC. Such an outcome would cause a draw on the Reserve Fund and perhaps, ultimately, a
default in payment of the Bonds.
Disclosure to Future Purchasers
The City has recorded a notice of the Special Tax lien in the Office of the County
Recorder. While title companies normally refer to such notices in title reports, there can be no
guarantee that such reference will be made or, if made, that a prospective purchaser or lender
will consider such special tax obligation in the purchase of a parcel of land or a home in
Improvement Area 2 or the lending of money secured by property in Improvement Area 2. The
Act and the Goals and Policies require the subdivider of a subdivision (or its agent or
representative) to notify a prospective purchaser or long-term lessor of any lot, parcel, or unit
subject to a Mello-Roos special tax of the existence and maximum amount of such special tax
using a statutorily prescribed form. California Civil Code Section 1102.6b requires that in the
case of transfers other than those covered by the above requirement, the seller must at least
make a good faith effort to notify the prospective purchaser of the special tax lien in a format
prescribed by statute. Failure by an owner of the property to comply with these requirements, or
failure by a purchaser or lessor to consider or understand the nature and existence of the
Special Tax, could adversely affect the willingness and ability of the purchaser or lessor to pay
the Special Tax when due.
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No Acceleration Provisions
The Bonds do not contain a provision allowing for the acceleration of the Bonds in the
event of a payment default or other default under the terms of the Bonds or the Fiscal Agent
Agreement. Under the Fiscal Agent Agreement, a Bond holder is given the right for the equal
benefit and protection of all Bond holders similarly situated to pursue certain remedies. See
"APPENDIX E - Summary of Fiscal Agent Agreement." So long as the Bonds are in book-entry
form, DTC will be the sole Bond holder and will be entitled to exercise all rights and remedies of
Bond holders.
Extraordinary Mandatory Redemption of Escrow Bonds
As set forth in "SECURITY FOR THE BONDS - Escrow Fund" and "APPENDIX E -
Summary of Fiscal Agent Agreement," proceeds of the Escrow Bonds will be deposited into an
Escrow Fund to be held by the Fiscal Agent under the Fiscal Agent Agreement. The Fiscal
Agent Agreement provides for the transfer of funds from the Escrow Fund to the Improvement
Fund and the Reserve Fund not more often than once each 12-month period, subject to
satisfaction of certain Escrow Release Tests. If the Escrow Release Tests have not been met
prior to the Escrow Redemption Date, moneys in the Escrow Fund will be transferred to the
Interest Account and the Principal Account for the purpose of redeeming the Escrow Bonds on
the Escrow Redemption Date.
Satisfaction of the Escrow Release Tests is dependent upon development and
occupancy of property in Improvement Area 2. Failure of the Property Owners to develop, sell or
lease their property as currently proposed (see "PROPERTY OWNERSHIP AND PROPOSED
DEVELOPMENT") may result in an ability to meet the Escrow Release Tests and lead to an
extraordinary mandatory redemption of the Escrow Bonds prior to their maturity. See "THE
BONDS - Redemption - Extraordinary Mandatory Redemption of Escrow Bonds."
Loss of Tax Exemption
As discussed under the caption "LEGAL MATTERS - Tax Matters," interest on the
Bonds might become includable in gross income for purposes of federal income taxation
retroactive to the date the Bonds were issued as a result of future acts or omissions of the City
in violation of its covenants in the Fiscal Agent Agreement. The Fiscal Agent Agreement does
not contain a special redemption feature triggered by the occurrence of an event of taxability.
As a result, if interest on the Bonds were to be includable in gross income for purposes of
federal income taxation, the Bonds would continue to remain outstanding until maturity unless
earlier redeemed pursuant to optional or mandatory redemption or redemption upon
prepayment of the Special Tax. See "THE BONDS - Redemption."
Voter Initiatives
Under the California Constitution, the power of initiative is reserved to the voters for the
purpose of enacting statutes and constitutional amendments. Since 1978, the voters have
exercised this power through the adoption of Proposition 13 and similar measures, the most
recent of which was approved as Proposition 218 in the general election held on November 5,
1996.
Any such initiative may affect the collection of fees, taxes and other types of revenue by
local agencies such as the Community Facilities District. Subject to overriding federal
57
7?
constitutional principles, such collection may be materially and adversely affected by voter-
approved initiatives, possibly to the extent of creating cash-flow problems in the payment of
outstanding obligations such as the Bonds.
Proposition 218—Voter Approval for Local Government Taxes—Limitation on Fees,
Assessments, and Charges—Initiative Constitutional Amendment, added Articles XI11C and
XIIID to the California Constitution, imposing certain vote requirements and other limitations on
the imposition of new or increased taxes, assessments and property-related fees and charges.
The Special Taxes and the Bonds were each authorized by not less than a two-thirds
vote of the landowners within Improvement Area 2 who constituted the qualified electors of
Improvement Area 2 at the time of such voted authorization. The City believes, therefore, that
issuance of the Bonds does not require the conduct of further proceedings under the Act or
Proposition 218.
Like its antecedents, Proposition 218 is likely to undergo both judicial and legislative
scrutiny before its impact on Improvement Area 2 and the City's related obligations can be
determined. Certain provisions of Proposition 218 may be examined by the courts for their
constitutionality under both State and federal constitutional law, the outcome of which cannot be
predicted.
Limitations on Remedies
Remedies available to the owners of the Bonds may be limited by a variety of factors
and may be inadequate to assure the timely payment of principal of and interest on the Bonds
or to preserve the tax-exempt status of the Bonds.
Bond Counsel has limited its opinion as to the enforceability of the Bonds and of the
Fiscal Agent Agreement to the extent that enforceability may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium, or other similar laws
affecting generally the enforcement of creditors' rights, by equitable principles and by the
exercise of judicial discretion. The lack of availability of certain remedies or the limitation of
remedies may entail risks of delay, limitation or modification of the rights of the owners of the
Bonds.
Factors Relating to Sub-Prime Loans
Since the end of 2002, many homeowners have financed the purchase of their new
homes using loans with little or no down-payment and with adjustable interest rates that are
subject to being reset at higher rates on a specified date or on the occurrence of specified
conditions. Homeowners who purchased their homes with "sub-prime loans" have begun to
experience difficulty in making their loan payments due to automatic rate increases on their
adjustable loans and rising interest rates in the market.
As a result of increasing defaults on "sub-prime loans" in recent months, credit has
become more difficult and more expensive to obtain, not only in the residential market, but also
in the commercial and industrial sectors. Unavailability of loans for the purchase and
development of real property in Improvement Area 2 may adversely impact assessed values
and development timelines of property in Improvement Area 2 and, as a result, adversely impact
Special Tax Revenues available to pay debt service on the Bonds.
58
Absence of Secondary Market for the Bonds
There can be no guarantee that there will be a secondary market for the Bonds or, if a
secondary market exists, that any Bonds can be sold for any particular price. Prices of bond
issues for which a market is being made will depend upon then-prevailing circumstances. Such
prices could be substantially different from the original purchase price. No assurance can be
given that the market price for the Bonds will not be affected by the introduction or enactment of
any future legislation (including without limitation amendments to the Internal Revenue Code),
or changes in interpretation of the Internal Revenue Code, or any action of the Internal Revenue
Service, including but not limited to the publication of proposed or final regulations, the issuance
of rulings, the selection of the Bonds for audit examination, or the course or result of any
Internal Revenue Service audit or examination of the Bonds or obligations that present similar
tax issues as the Bonds.
On May 21, 2007, the U.S. Supreme Court agreed to review Daw's v. Kentucky Dept of
Revenue of the Finance and Admin. Cabinet, 197 S.W.Sd 557 (2006), a decision holding that
state statutes providing more favorable state income tax treatment to holders of debt issued by
in-state government bodies than for debt issued by out-of-state government bodies violate the
U.S. Constitution. If the decision is upheld, the marketability and market price for the Bonds
may be affected.
LEGAL MATTERS
Legal Opinions
The legal opinion of Best Best & Krieger LLP, San Diego, California, Bond Counsel,
approving the validity of the Bonds will be made available to purchasers at the time of original
delivery and is attached as APPENDIX I.
Jones Hall, A Professional Law Corporation, San Francisco, California is serving as
Disclosure Counsel to the City.
Tax Matters
In the opinion of Best Best & Krieger LLP, based upon analysis of existing laws,
regulations, rulings and court decisions, and assuming, among other matters, compliance with
certain covenants, interest on the Bonds is excluded from gross income for federal income tax
purposes under Section 103 of the Internal Revenue Code of 1986 (the "Code") and is exempt
from State of California personal income taxes. Bond Counsel is of the further opinion that
interest on the bonds is not a specific preference item for purposes of the federal individual or
corporate alternative minimum taxes, although Bond Counsel observes that such interest is
included in adjusted current earnings when calculating federal corporate alternative minimum
taxable income. A complete copy of the proposed form of opinion of Bond Counsel is set forth
in APPENDIX H hereto.
The Code imposes various restrictions, conditions and requirements relating to the
exclusion from gross income for federal income tax purposes of interest on obligations such as
the Bonds. The District has covenanted to comply with certain restrictions designed to insure
that interest on the Bonds will not be included in federal gross income. Failure to comply with
59
these covenants may result in interest on the Bonds being included in federal gross income,
possibly from the date of original issuance of the Bonds. The opinion of Bond Counsel assumes
compliance with these covenants. Bond Counsel has not undertaken to determine (or to inform
any person) whether any actions taken (or not taken) or events occurring (or not occurring) after
the date of issuance of the bonds may adversely affect the value of, or the tax status of interest
on, the Bonds. Prospective Bondholders are urged to consult their own tax advisors with
respect to proposals to restructure the federal income tax.
Certain requirements and procedures contained or referred to in the Indenture, the Tax
Certificate, and other relevant documents may be changed and certain actions (including,
without limitation, defeasance of the Bonds) may be taken or omitted under the circumstances
and subject to the terms and conditions set forth in such documents. Bond Counsel expresses
no opinion as to any bond or the interest thereon if any such changes occurs or action is taken
or omitted upon the advice or approval of counsel other than Best Best & Krieger LLP.
Although Bond Counsel is of the opinion that interest on the bonds is excluded from
gross income for federal income tax purposes and is exempt from State of California personal
income taxes, the ownership or disposition of, or the accrual or receipt of interest on, the Bonds
may otherwise affect a Bondholder's federal or state tax liability. The nature and extent of these
other tax consequences will depend upon the particular tax status of the Bondholder or the
Bondholder's other items of income or deduction, and Bond Counsel expresses no opinion
regarding any such other tax consequences.
No Litigation
[Confirm] At the time of delivery of the Bonds, the City will certify that there is no action,
suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public
agency or body, pending with respect to which the City has been served with process or known
to be threatened, which:
in any way questions the powers of the City Council or the Community
Facilities District; or
in any way questions the validity of any proceeding taken by the City
Council in connection with the issuance of the Bonds; or
• if there is an unfavorable decision, ruling or finding, could materially
adversely affect the transactions contemplated by the Bond Purchase Contract; or
• in any way, could adversely affect the validity or enforceability of the
resolutions of the City Council adopted in connection with the formation of the
Community Facilities District or the issuance of the Bonds, the Bonds, the Fiscal Agent
Agreement, the Issuer Continuing Disclosure Certificate or the Bond Purchase Contract;
or
in any way questions the exclusion from gross income of the recipients
thereof of the interest on the Bonds for federal income tax purposes; or
in any other way questions the status of the Bonds under State tax laws
or regulations.
60
CONCLUDING INFORMATION
No Ratings
The Bonds have not been rated by any securities rating agency.
Underwriting
The Bonds are being purchased by the Stone & Youngberg LLC (the "Underwriter") at a
purchase price of $ (which represents the aggregate principal amount of the
Bonds ($ ), less an original issue discount of $ , and less an
Underwriter discount of $ ).
The purchase agreement relating to the Bonds provides that the Underwriter will
purchase all of the Bonds, if any are purchased, the obligation to make such purchase being
subject to certain terms and conditions set forth in such purchase agreement.
The Underwriter may offer and sell Bonds to certain dealers and others at prices lower
than the offering price stated on the cover page hereof. The offering prices may be changed
from time to time by the Underwriter.
Professional Fees
In connection with the issuance of the Bonds, fees or compensation payable to certain
professionals are contingent upon the issuance and delivery of the Bonds. Those professionals
include:
• Best Best & Krieger LLP, as Bond Counsel;
• Jones Hall, A Professional Law Corporation, as Disclosure Counsel; and
• Stone & Youngberg LLC, the Underwriter.
Execution
The execution and delivery of the Official Statement by the City has been duly
authorized by the City Council, acting as the legislative body of Improvement Area 2.
CITY OF CARLSBAD, for and on behalf of the City
of Carlsbad Community Facilities District No. 3,
County of San Diego, State of California
By:
Acting City Manager
61
City of Carlsbad
Office of the City Clerk
Records Management Department
CERTIFICATE OF ELECTION OFFICIAL
AND STATEMENT OF VOTES CAST
STATE OF CALIFORNIA )
COUNTY OF SAN DIEGO )ss.
CITY OF CARLSBAD )
The undersigned, ELECTION OFFICIAL OF THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, DOES HEREBY
CERTIFY that pursuant to the provisions of Section 53326 of the Government Code
and Division 12, commencing with Section 17000 of the Elections Code of the State
of California, I did canvass the returns of the votes for the
CITY OF CARLSBAD
STREET LIGHTING & LANDSCAPING DISTRICT NO. 2
SPECIAL ELECTION
ANNEXATION OF LA COSTA RIDGE VILLAGE 2.6 ZONE 8
In such City, held December 31,2007.
I FURTHER CERTIFY that this Statement of Votes Cast shows the whole number
of votes cast in the area proposed to be annexed to Street Lighting & Landscaping
District No. 2 of such City for or against the Measure are full, true and correct.
VOTES CAST ON ZONE 8 ANNEXATION YES /
NO
WITNESS my hand this 31st day of December, 2007
tlTY Ct»ERK/ELECTION OFFICIAL
CITY OF CAHLSBAD
STATE OF CALIFORNIA
12OO Carlsbad Village Drive • Carlsbad, CA 92OO8-1989 • (76O) 434-28O8
City Clerk PROPERTY OWNER ASSESSMENT BALLOT
City of Carlsbad ON PROPOSED ASSESSMENTS
1200 Carlsbad Village Drive CITY OF CARLSBAD
Carlsbad, CA 92008 STREET LIGHTING AND LANDSCAPING DISTRICT NO. 2
Western Pacific Housing, Inc.
Attn: Kim Molina
5790 Fleet Street, Suite 210
Carlsbad, CA 92008
Assessor's Parcel Number: 223-720-03-00
Landuse: 53 Single Family Detached and 1 Park
Total Proposed Maximum FY 2007-08 Assessment* = $3,372.52
* The maximum annual maintenance assessment will be increased for cost of living each year according to the change in the San
Diego Consumer Price Index - Urban (SDCPI-U) for the San Diego County area.
The person completing and submitting this assessment ballot must be the record owner of the property identified above or the
representative of the record owner of such property who is legally authorized to complete and submit this assessment ballot for and
on behalf of the record owner.
If there are two or more property owners, only one needs to sign and return the assessment ballot.
Please mark your assessment ballot in ink. Do not use pencil.
PROPERTY OWNER ASSESSMENT BALLOT
Owner Name: Western Pacific Housing, Inc.
Total Maximum FY 2007-08 Assessment Amount*: $3,372.52
* to be adjusted annually by the change in San Diego Consumer Price Index - Urban (SDCPI-U)
Yes, I am IN FAVOR of the levy of the assessment described in this assessment ballot on the properties described in this
assessment ballot
No, I am OPPOSED to the levy of the assessment described in this assessment ballot on the properties described in this
assessment ballot
/ hereby declare under penalty of perjury that I am the record owner, or the authorized representative of the record owner, of
the parcel identified above
/Z/tl/Oj
Date Printed Name " Signature'
D-4 12/18/07
C:\Documents and Settings\kjmolina\Local SettingsVTemporary Internet Files\OLK89\The Ridge Annex 2 6 Exhibits.doc
[ORION'im
90 FLEET STREET SUITE 210
CARLSBAD, CA 92008
SAN .-DIEGO CA
.2*3 DEC O7 P-
Cj-K| of
02 1A $00-41°
0004618680 DEC 22 2007
MAI LED FROM ZIP CODE 92008
Community Facilities District #3Faraday-MelroseImprovement Area 2 FinancingJanuary 15, 2008
History•CFD #3 was created in November 2005 to fund certain public improvements necessary to serve the Palomar Forum, Raceway and Carlsbad Oaks North developments
CFD #3CFD #3CFD #3CFD #3CFD #3CFD #3CFD #3
History•Due to the timing of the development within these non-residential areas, the district was divided into two areas, IA1 and IA2•$11.3 million of tax exempt bonds were issued for IA1 in May 2006
Tonight’s Purpose•Authorize the issuance of special tax bonds for Improvement Area 2 and approve the form of the financing documents
•Financing Team–Tax Administrator•Special District Financing–Bond Counsel•Best, Best and Krieger–Underwriter•Stone and Youngberg–Disclosure Counsel•Jones Hall
Order of Procedure1.Staff Report2.Council Questions and Comments3.Council Action:Authorize the issuance of bonds not to exceed $20 million for CFD#3 IA2Approve the form of the financing documents including:Preliminary Official StatementFiscal Agent AgreementContinuing Disclosure CertificateBond Purchase Contract
Bond Issuance•Value to Lien–Must be 4:1 unless specific findings made•All other Terms and Conditions to be determined at Council’s discretion•Expect issuance in early February 2008
Value to Lien•An escrow account will be established to maintain the value to lien ratio at a minimum of 4:1•Anticipate approximately $3.8 million to be held in escrow until value increases•Escrowed bonds will be released when several release tests are met
Construction (Including Escrow Funds)$15,746,000Formation and Bond Issuance717,000Capitalized Interest 523,000Bond Reserve Fund1,379,000Estimated Debt Needed$18,365,000Contingent Debt Allowance1,635,000Total Debt AuthorizationRequested $20,000,000Bond Estimate for Area 2
Sale of BondsPrincipal not-to-exceed:$20 millionInterest not-to-exceed:7% per year
Financing ScheduleJanuary 15th:Approval of Resolutions & Financing DocumentsJanuary 17:Preliminary Official Statement to printerEarly February:Sale of bonds and close financing
Actions RequestedCouncil ActionAuthorize the issuance of bonds not to exceed $20 million for CFD#3 IA2Approve the form of the financing documents including:Preliminary Official StatementFiscal Agent AgreementContinuing Disclosure CertificateBond Purchase Contract
Community Facilities District #3Faraday-MelroseImprovement Area 2 FinancingJanuary 15, 2008
CFD #3Streets Total Development # of LotsGross AcresPad/Net Acres# of Lots Acres Acres AcresCarlsbad Oaks North23 167.2 129.9 4 219.5 27.2 413.9Raceway 25 86.1 73.0 3 48.9 12.1 147.1Forum 8 51.5 44.5 2 3.4 14.9 69.8Open Space LotsBuilding Lots
Construction$28,100,000Less Grant funding <3,000,000>Formation and Bond Issuance1,070,000Capitalized Interest (one year) 1,270,000Bond Reserve Fund2,160,000Estimated Debt Needed$29,610,000Contingent Debt Allowance3,390,000Total Debt Limit Requested $33,000,000Cost Estimate for the Project