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HomeMy WebLinkAbout2005-01-11; City Council; Resolution 2005-0101 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit 2 RESOLUTION NO. 2005-010 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AUTHORIZING AND PROVIDING FOR THE ISSUANCE OF LIMITED OBLIGATION IMPROVEMENT BONDS FOR ASSESSMENT DISTRICT NO. OF BOND INDENTURE, PRELIMINARY OFFICIAL STATEMENT, BOND PURCHASE AGREEMENT, CONTINUING DISCLOSURE CERTIFICATE AND OTHER DOCUMENTS AND AUTHORIZING CERTAIN ACTIONS IN CONNECTION THEREWITH. 2002-01 (POINSETTIA LANE EAST), APPROVING THE FORM WHEREAS, the City Council of the City of Carlsbad, California (this “City Council”) has conducted proceedings to form and did form an assessment district for the purpose of financing a portion of the cost of the acquisition or construction of certain public improvements pursuant to the terms and provisions of the “Municipal Improvement Act of 191 3”, being Division 12 of the Streets and Highways Code of the State of California, such assessment district known and designated as ASSESSMENT DISTRICT NO. 2002-01 (POINSETTIA LANE EAST) (the “Assessment District”); and, WHEREAS, this City Council has previously declared its intention to issue bonds to finance that portion of the cost of the acquisition or construction of such public improvements representing the special benefit to the properties within the Assessment District from such improvements, such bonds to issue pursuant to the terms and provisions of the “Improvement Bond Act of 1915, being Division 10 of the Streets and Highways Code of the State of California (the “Bond Act”); and, WHEREAS, at this time this City Council desires to set forth the general terms and conditions relating to the authorization, issuance and administration of such bonds to be secured by the assessments levied within the Assessment District; and, WHEREAS, on January 21, 2003, the City entered into an Acquisition and Financing Agreement (the “Acquisition Agreement”) with Lennar Bressi Ranch Venture, LLC, a California limited liability company (“Lennar”) and Real Estate Collateral Management Company, a Delaware corporation to establish the terms and conditions pursuant to which, among other things, such public improvements were to be constructed and acquired and bonds were to be 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit 2 issued for the Assessment District in conformity with the City Council’s adopted policy for the use of assessment districts and the issuance of bonds therefore; and, WHEREAS, the Acquisition Agreement provides that bonds to be secured by the assessments levied within the Assessment District may be issued if (i) the aggregate appraised value of all properties within the Assessment District shall be at least four (4) times the Land Secured Debt (defined below) allocable to the properties within the Assessment District and (ii) the aggregate appraised value of all properties within each discrete development area designated by the Finance Director within the Assessment District shall also be at least four (4) times the Land Secured Debt allocable to the properties within each such discrete development area; and, WHEREAS, the Acquisition Agreement defines “Land Secured Debt” to means as to any taxable property, the principal amount of all outstanding bonds of the Assessment District allocable to such property, together with the principal amount of any other indebtedness of any community facilities district secured by the levy of special taxes which is allocable to such parcel and the principal amount of any other fixed lien assessment levied against such property; and, WHEREAS, an appraisal of the properties within the Assessment District (the “Appraisal”), undertaken on behalf of the City by Bruce W. Hull 81 Associates, Inc., showed that (a) the aggregate appraised value of all properties within the Assessment District is greater than four (4) times the Land Secured Debt attributable to such properties and (b) the aggregate appraised value of all properties within each discrete development area designated by the Finance Director within the Assessment District is, with the exception of the property identified as Assessment No. 13 in the Final Engineer’s Report for the Assessment District, is at least four (4) times the Land Secured Debt allocable to the properties within each such discrete development area; and, WHEREAS, the appraised value of the property within Assessment No. 13 is approximately 2.81 times the Land Secured Debt allocable to such property; and, WHEREAS, the Acquisition Agreement provides that the City may, in its sole discretion, accept a lower ratio of appraised value to Land Secured Debt or accept a form or forms of credit c 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit 2 enhancement such as a letter of credit, cash deposit, bond insurance or the escrow of bond proceeds to offset a deficiency in the required value-to-debt ratio; and, WHEREAS, the City’s financing team has recommended that proceeds of the bonds proposed to be issued be escrowed to offset the deficiency in the required value-to-debt ratio for the property within Assessment No. 13 and such provisions have been incorporated into the Bond Indenture (defined below); and WHEREAS, there have been presented to and considered and ready for approval by this City Council the forms of the following documents: A. Bond Indenture by and between the City of Carlsbad (the “City”) and BNY Western Trust Company as Paying Agent (the “Paying Agent”) setting forth the terms and conditions relating to the issuance and sale of bonds (the “Bond Indenture”); B. Bond Purchase Agreement authorizing the sale of bonds to Stone & Youngberg LLC, the designated underwriter (the “Bond Purchase Agreement”); C. Preliminary Official Statement containing information including but not limited to the Assessment District and the type of bonds, including terms and conditions thereof (the “Preliminary Official Statement”); and D. Continuing Disclosure Certificate pursuant to which the City will be obligated to provide both annual disclosure and additional disclosure upon the occurrence of certain events relating to the Assessment District and the bonds (the “Continuing Disclosure Certificate ”); and WHEREAS, this City Council, with the aid of City staff, has reviewed and considered the forms of the Bond Indenture, the Bond Purchase Agreement, Preliminary Official Statement and the Continuing Disclosure Certificate and finds the forms of these documents suitable for approval, subject to the conditions set forth in this resolution; and WHEREAS, all conditions, things and acts required to exist, to have happened and to have been performed precedent to and in the issuance of the bonds and the levy of the assessments as contemplated by this resolution and the documents referred to herein exist, have happened and have been performed or have been ordered to have been preformed in due time, form and manner as required by the laws of the State of California, including the Bond Act 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit 2 and the applicable policies and regulations of the City. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows: 1. 2. That the above recitations are true and correct. BOND AUTHORIZATION. Pursuant to the Bond Act, this resolution and the Bond Indenture, limited obligation improvement bonds of the City for the assessment district designated as “City of Carlsbad Assessment District No. 2002-01 (Poinsettia Lane East) Limited Obligation Improvement Bonds, Series 2004A (the “Series 2004A Bonds”) in an aggregate principal amount not to exceed $35,000,000 are hereby authorized to be issued. The date, manner of payment, interest rate or rates, interest payment dates, denominations, form, registration privileges, manner of execution, place of payment, terms of redemption and other terms, covenants and conditions of the Bonds shall be as provided in the Bond Indenture as finally executed. 3. AUTHORIZATION AND CONDITIONS. The City Manager, the Finance Director and such other officials of the City as may be designated in writing by the City Manager or the Finance Director (each, an “Authorized Officer”) are, and each of them individually is, hereby authorized and directed for and on behalf of the City to execute and deliver the various documents and instruments described in this resolution in substantially the form approved hereby with such changes, insertions and omissions as the Authorized Officer executing the same may deem necessary or advisable; provided, however, that no additions or changes shall authorize an aggregate principal amount of Series 2004A Bonds in excess of $35,000,000, an annual interest rate on the Series 2004A Bonds in excess of seven percent (7.00%) per year and a purchase price for the Series 2004A Bonds not less than ninety eight and twenty five hundredths percent (98.25%) of the par amount of the Series 2004A Bonds. The approval of such additions or changes shall be conclusively evidenced by the execution and delivery of such documents or instruments by the Authorized Officer, following consultation with and review by the City Attorney and Best Best & Krieger LLP, the City’s bond counsel for the Series 2004A Bonds. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit 2 4. BOND INDENTURE. The proposed form of Bond Indenture by and between the City and the Paying Agent, with respect to the Series 2004A Bonds as presented to this City Council and on file with the City Clerk is hereby approved. 5. SALE OF SERIES 2004A BONDS; BOND PURCHASE AGREEMENT. This City Council hereby authorizes and approves the sale of the Series 2004A Bonds by negotiation to Stone & Youngberg LLC (the "Underwriter"). The form of the Bond Purchase Agreement presented to this City Council and on file with the City Clerk is hereby approved. 6. OFFICIAL STATEMENT. The form of Preliminary Official Statement presented to this City Council and on file with the City Clerk is hereby approved. The Authorized Officers, acting for and on behalf of the City, are, and each of them individually is, hereby authorized and directed to approve such changes, insertions and omissions therein as are necessary to enable such Authorized Officer to certify on behalf of the City that the approved Preliminary Official Statement is deemed final as of its date except for the omission of certain information as permitted by Section 240.15c2-12(b)(l) of Title 17 of the Code of Federal Regulations. The Authorized Officers, acting for and on behalf of the City, are, and each of them individually is, further authorized and directed to cause the City to bring the Preliminary Official Statement into the form of a final official statement (the "Final Official Statement") and to execute a statement that the facts contained in the Final Official Statement, and any supplement or amendment thereto (which shall be deemed an original part thereof for the purpose of such statement) were, at the time of sale of the Series 2004A Bonds, true and correct in all material respects and that the Final Official Statement did not, on the date of sale of the Series 2004A Bonds, and does not, as of the date of delivery of the Series 2004A Bonds, contain any untrue statement of a material fact with respect to the City, the Assessment District and/or the Series 2004A Bonds or omit to state material facts with respect to the City, the Assessment District and/or the Series 2004A Bonds required be stated where necessary to make any statement made therein not misleading in the light of the circumstances under which it was made. The Underwriter is hereby authorized to distribute copies of the Preliminary Official Statement to 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit 2 persons who may be interested in the purchase of the Series 2004A Bonds and is directed to deliver copies of the Final Official Statement to all actual purchasers of the Series 2004A Bonds from the Underwriter acting in such capacity. 7. CONTINUING DISCLOSURE CERTIFICATE. The form of the Continuing Disclosure Certificate presented to this City Council and on file with the City Clerk is hereby approved. 8. SERIES 2004A BONDS PREPARED AND DELIVERED. Upon the execution of the Bond Purchase Agreement, the Series 2004A Bonds shall be prepared, authenticated and delivered, all in accordance with the applicable terms of the Bond Act and the Bond Indenture, and any Authorized Officer and other responsible City officials are hereby authorized and directed to take such actions as are required under the Bond Purchase Agreement and the Bond Indenture to complete all actions required to evidence the delivery of the Series 2004A Bonds upon the receipt of the purchase price thereof from the Underwriter. 9. ADMINISTRATION OF ESCROW FUND; FUTURE APPRAISALS OF PROPERTY WITHIN ASSESSMENT NO. 13. The proceeds of the Series 2004A Bonds deposited in the Escrow Fund shall be administered and released pursuant to the provisions of the Bond Indenture. Lennar or the owner of the property within Assessment No. 13 may, not more than one (1) time during each consecutive twelve (12) month period following the date of the issuance of the Series 2004A Bonds, file a written request with the Finance Director that the City retain an Appraiser (as defined in the Bond Indenture) to undertake an Appraisal (as defined in the Bond Indenture) of the such property to determine the then appraised value of such property. The City shall have no obligation to cause any such Appraisal to be undertaken unless and until such party shall have deposited with the Finance Director that sum deemed necessary by the Finance Director to pay the costs of undertaking such Appraisal and determining the Land Secured Debt allocable to such property and the value-to-debt ratio then applicable to such property. IO. ANNUAL ASSESSMENT INSTALLMENTS. A copy of the resolution confirming the assessments levied within the Assessment District, which assessments shall constitute the lo 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit 2 security for the Series 2004A Bonds, shall be delivered to the Finance Director and the Finance Director shall keep or cause to be kept the record showing the several installments of principal and interest on the assessments levied within the Assessment District which are to be collected each year during the term of the Series 2004A Bonds. An annual portion of each such assessment, together with annual interest on said assessment, shall be payable in the same manner and at the same time and in the same installment as the general property taxes of the County of San Diego and shall be payable and become delinquent at the same time and in the same proportionate amount. Each year the annual installments shall be submitted to the San Diego County Auditor for purposes of collection. 11. SUPERIOR COURT FORECLOSURE. This City Council does hereby specifically covenant for the benefit of the holders of the Series 2004A Bonds to commence and prosecute foreclosure actions regarding delinquent installments of the assessments levied within the Assessment District in the manner, within the time limits and pursuant to the terms and conditions as shall be set forth in the Bond Indenture. 12. NO CITY LIABILITY. This legislative body hereby reaffirms and ratifies its previous declaration not to obligate itself to advance available funds from the Treasury to cure any deficiency that may occur in the bond redemption fund. This determination was originally made and is reaffirmed and ratified pursuant to the authority of Section 8769(b) of the Streets and Highways Code of the State of California, and such determination shall further be set forth in the text of the Series 2004A Bonds. 13. ACTIONS. All actions heretofore taken by the officers and agents of the City with respect to the establishment of the Assessment District and the sale and issuance of the Series 2004A Bonds are hereby approved, confirmed and ratified, and the proper officers of the City are hereby authorized and directed to do any and all things and take any and all actions and execute any and all certificates, agreements, contracts, and other documents, which they, or any of them, may deem necessary or advisable in order to consummate the lawful issuance and delivery of the Series 2004A Bonds in accordance with the Bond Act, this Resolution, the Bond indenture, the Bond Purchase Agreement, the Continuing Disclosure Certificate, and any 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit 2 certificate, agreement, contract, and other document described in the documents herein approved. 14. ISSUANCE OF PARITY BONDS. The City may, in its sole discretion, issue Parity Bonds (as defined in the Bond Indenture) only pursuant to and in conformity with the provisions of the Bond Indenture. 15. PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City EFFECTIVE DATE. This resolution shall take effect upon its adoption. Council held on the 11th day of JANUARY AYES: Council Members Hall, Kulchin, Packard, Sigafoose NOES: None ABSENT: Council Member Lewis , 2005 by the following vote, to wit: ATTEST: 1 EWI .Mavor MATT HAtL, Mayor. Pro- Tem (SEAL)