HomeMy WebLinkAbout2005-01-11; City Council; Resolution 2005-0101
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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
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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
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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
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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.
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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
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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
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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
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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)