HomeMy WebLinkAboutItem 8.1 - 1526 Authorizing Issuance of First Series of Spe
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STAFF REPORT
CITY COUNCIL
DATE: July 18, 2017
TO: Honorable Mayor and City Councilmembers
FROM:
Christopher L. Foss, City Manager
SUBJECT:
Authorizing Issuance of First Series of Special Tax Bonds for Improvement
Area No. 1 of Community Facilities District No. 2015-1 (Dublin Crossing)
and Approving Form of and Execution of Related Documents; Authorizing
Execution of Acquisition Agreement; and Authorizing Execution of Joint
Community Facilities Agreement
Prepared by: Colleen Tribby, Director of Administrative Services
EXECUTIVE SUMMARY:
This report contains three related items for the City Council’s consideration regarding
the first phase of special tax bond financing for Community Facilities District No. 2015 -1
(Dublin Crossing) and the use of the bond sale proceeds to finance authorized public
capital facilities and public capital facility impact fees. The first is a Resolution
authorizing issuance of the 2017 special tax bonds and approving the forms of and
authorizing the execution of related bond issuance documents. The second is a
Resolution authorizing execution of an Acquisition Agreement with Dublin Crossing,
LLC, which prescribes the conditions and procedure for disbursement of bond proceeds
to finance (through reimbursement) authorized public capital facilities upon completion
and to finance (through reimbursement) authorized public capital facility impact fees.
The third is a Resolution authorizing execution of a Joint Community Facilities
Agreement with Zone 7 of the Alameda County Flood Control and Water Conservation
District (Zone 7), providing the procedure for transferring ownership of those authorized
public capital facilities which, upon completion, are to be owned by Zone 7.
STAFF RECOMMENDATION:
Adopt the following: 1) Resolution Authorizing Issuance of Special Tax Bonds;
Approving the Form and Authorizing Execution of a Fiscal Agent Agreement, a
Purchase Contract and a Continuing Disclosure Certificate and Authorizing Sale and
Delivery of the Bonds Pursuant to the Purchase Contract; Approving the Form and
Delivery of a Preliminary Official Statement and the Preparation and Distribution of a
Final Official Statement to be Derived from the Preliminary Official Statement; and
Approving Execution and Delivery of Other Doc uments and Taking of Actions as
Necessary to Implement the Issuance, Sale and Delivery of the Bonds; 2) Resolution
Authorizing Execution of an Acquisition Agreement Between the City of Dublin and
Dublin Crossing, LLC; and, 3) Resolution Authorizing Execution of a Joint Community
Facilities Agreement Among the City of Dublin, Zone 7 of the Alameda County Flood
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Control and Water Conservation District, and Dublin Crossing, LLC.
FINANCIAL IMPACT:
None.
DESCRIPTION:
This Staff Report discusses three separate actions for City Council consideration,
represented by adoption of the three separate but related resolutions. All three actions
are required to proceed with issuance, sale and delivery of t he first series of bonds for
Community Facilities District no. 2015-1 (Dublin Crossing) (the CFD) and the
disbursement of bond sale proceeds to finance the previously authorized public capital
facilities upon completion and public capital facility fees relating to the development
project initially known as Dublin Crossing but since renamed Boulevard.
Consideration of Authorizing Issuance of Bonds and Approving Related Documents
(Attachments 1-4)
On June 2, 2015, the City Council adopted Resolution No. 96 -15, forming the CFD and
identifying the public capital facilities and public capital facility impact fees to be
financed by the CFD. On the same date, the City Council adopted Resolution No. 97 -
15, deeming it necessary to incur indebtedness (in the form of bonds) to provide the
authorized financing.
The financing program has been structured to take place in phases related to
designated subareas of the CFD, known as Improvement Areas. This first phase
relates to Improvement Area No. 1, which was the subject of the annexation
proceedings completed by the recording on June 26, 2017, of Annexation Map No. 1,
approved by Resolution No. 93-17, adopted by the City Council on June 20, 2017. The
bonds are secured by and will be repaid from the proceeds of special taxes levied upon
only the taxable parcels in Improvement Area No. 1, which now includes the property
commonly referred to as Phase 1A and Phase 1B.
The Fiscal Agent Agreement (Attachment 2), between the City and U.S. Bank National
Association, as Fiscal Agent, provides the form of the bonds and provides for the
administration of both the bond sale proceeds and the speci al tax proceeds from which
the bonds will be repaid and, when possible, authorized facilities and impact fees will be
financed directly.
The Purchase Contract (Attachment 3), between the City and Prager & Co., LLC (the
Underwriter), provides for the sale by the City and the purc hase by the Underwriter of
the bonds.
The Continuing Disclosure Certificate (Attachment 4, Appendix G-1), to be executed
and delivered on behalf of the City, prescribes the terms and conditions under which the
City, as issuer of the bonds, will provide annual disclosure reports respecting prescribed
information for the benefit of the bond holders, in satisfaction of requirements of federal
securities laws, together with notice of certain prescribed events (the Listed Events) in
the event such events occur.
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Consideration of Approving the Acquisition Agreement (Attachments 5 and 6)
The Acquisition Agreement (Attachment 6), between the City and Dublin Crossing, Inc.,
prescribes the terms and conditions under which Dublin Crossing, Inc. (the Developer)
or affiliated parties may request disbursement of Bond proceeds or available special tax
proceeds to pay the acquisition price of authorized public capital facilities or to
reimburse for authorized capital facility impact fees which the Developer or affiliated
party has paid to the City, Dublin San Ramon Services District (DSRSD) or Zone 7.
Under the agreement, disbursement requests are submitted to and must be approved
by the Director of Public Works prior to disbursement of any requested amount by the
Fiscal Agent.
Consideration of Approving the Joint Community Facilities Agreement (the JCFA) with
Dublin Crossing, Inc., and Zone 7 (Attachments 7 and 8)
The JCFA (Attachment 8), among the City, Dublin Crossing, Inc, and Zone 7 prescribes
the terms and conditions under which ownership of authorized capital facilities, upon
completion, is transferred to Zone 7.
The corresponding JCFA for DSRSD was approved by the City Council by Resolution
No. 03-17, adopted on January 10, 2017.
City Council Actions Needed
Approval of the attached three resolutions (Attachments 1, 5 and 7) will complete the
three items discussed in this Staff Report and enable the working group for the
financing program to proceed with issuance, sale and delivery of the bonds.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
None.
ATTACHMENTS:
1. Resolution Authorizing Issuance of Special Tax Bonds; Approving the Form and
Authorizing Execution of a Fiscal Agent Agreement
2. Fiscal Agent Agreement
3. Purchase Contract
4. Preliminary Official Statement, and Continuing Disclosure Certificate (Appendix G -1)
5. Resolution Authorizing Execution of an Acquisition Agreement Between the City of
Dublin and Dublin Crossing, LLC
6. Exhibit A to the Resolution Authorizing Execution of an Acquisition Agreement
7. Resolution Authorizing Execution of a Joint Community Facilities Agreement
8. Exhibit A to the Resolution Authorizing Execution of a Joint Community Facilities
Agreement
RESOLUTION NO. __-17
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
**********
AUTHORIZING THE ISSUANCE OF SPECIAL TAX BONDS FOR AND
ON BEHALF OF THE CITY OF DUBLIN COMMUNITY FACILITIES
DISTRICT NO. 2015-1 (DUBLIN CROSSING); APPROVING THE FORM
AND AUTHORIZING THE EXECUTION OF A FISCAL AGENT AGREEMENT,
A PURCHASE CONTRACT AND A CONTINUING DISCLOSURE
CERTIFICATE AND AUTHORIZING THE SALE AND DELIVERY OF
SPECIAL TAX BONDS PURSUANT TO SAID PURCHASE CONTRACT;
APPROVING THE FORM AND DELIVERY OF A PRELIMINARY OFFICIAL
STATEMENT AND THE PREPARATION AND DISTRIBUTION OF A FINAL
OFFICIAL STATEMENT TO BE DERIVED FROM THE PRELIMINARY
OFFICIAL STATEMENT; AND APPROVING EXECUTION AND DELIVERY
OF OTHER DOCUMENTS AND TAKING OF ACTIONS AS NECESSARY TO
IMPLEMENT THE ISSUANCE, SALE AND DELIVERY OF THE BONDS
WHEREAS, the City Council (the “City Council”) of the City of Dublin (the "City") has
previously conducted proceedings under and pursuant to the Mello-Roos Community Facilities
Act of 1982, as amended (the "Act"), to form the City of Dublin Community Facilities District
No. 2015-1 (Dublin Crossing) (“CFD No. 2015-1"), to authorize the levy of special taxes (the
“Special Taxes”) upon the land within CFD No. 2015-1, and to issue special tax bonds (the
“Bonds”) secured by the special taxes to be levied upon the taxable property within prescribed
improvement areas of CFD No. 2015-1 for the purpose of financing all or a portion of the cost
and expense of certain authorized public capital facilities and capital facility impact fees (the
“Authorized CFD Public Improvements”) pertaining to and required as conditions of approval of
a development project in the City (the “Development Project”), being implemented in phases
within or pertaining to CFD No. 2015-1; and
WHEREAS, the property within the boundary of CFD No. 2015-1 is designated as
“Improvement Area No. 1,” as shown on the boundary map recorded on May 4, 2015 (the
“Boundary Map”), in Book 18 of Maps of Assessment and Community Facilities Districts, at
page 61, as Document No. 2015118036, official records of the County Recorder of the County of
Alameda (the “County Recorder”), as supplemented by Annexation Map No.1 recorded on June
26, 2017 (“Annexation Map No. 1”) in Book 317 of Maps of Assessment and Community
Facilities Districts, at page 60, as Document No. 2017138466, official records of the County
Recorder, with additional property designated on the Boundary Map and Annexation Map No. 1
as “Future Annexation Area” which is anticipated to be annexed into CFD No. 2015-1 and upon
such annexation established as future Improvement Areas No. 2 through 5, inclusive; and
WHEREAS, Resolution No. 96-15, adopted by the City Council on June 2, 2015 (the
“Resolution of Formation”), among other things, authorized the financing of the Authorized CFD
Public Improvements, as described in Exhibit A thereto (“Original Exhibit A”), by proceeds of
the Special Taxes and proceeds of sale of the Bonds, and approved five separate instruments
(each a “rate and method of apportionment of special tax” and hereafter in this Resolution
referred to as an “RMA”), attached to the Resolution of Formation as Exhibits B through F,
inclusive, to provide for the levy of Special Taxes upon the taxable property within each of five
corresponding improvement areas (including Improvement Area No. 1 and each of the four
improvement areas anticipated to be established by annexation proceedings and to be known as
Improvement Areas No. 2 through 5, inclusive), as follows:
(a) For Improvement Area No. 1, the RMA attached to the Resolution of Formation
as Exhibit B (the “RMA for Improvement Area No. 1”); and
(b) For Improvement Areas No. 2 through 5, the RMAs attached as Exhibits C
through F, respectively; and
WHEREAS, Original Exhibit A has been modified by proceedings concluded on this
same date with the adoption by this City Council of its resolution entitled “Resolution Declaring
Results of Landowner-Voter Election and Ordering Change to Exhibit A of Resolution No. 96-
15 to Authorize, Under Prescribed Conditions, the Addition or Deletion of Capital Improvements
and/or Capital Facilities Impact Fees Which May be Financed” (the “Resolution Ordering
Change”), as a result of which Original Exhibit A has been superceded by the modified Exhibit
A attached to the Resolution Ordering Change (“New Exhibit A”); and
WHEREAS, the levy of Special Taxes within Improvement Area No. 1 in accordance
with the RMA for Improvement Area No. 1 has been authorized by Ordinance No. 3-15, passed
and adopted by the City Council on June 16, 2015;
WHEREAS, by this Resolution (this “Resolution”), in order to provide financing for a
portion of the costs and expenses of Authorized CFD Public Improvements, the City Council,
acting on behalf of CFD No. 2015-1, desires to provide for the issuance, sale and delivery of its
City of Dublin Improvement Area No. 1 Community Facilities District No. 2015-1 (Dublin
Crossing) Special Tax Bonds, Series 2017 (the "2017 Bonds"); and
WHEREAS, there has been submitted to the City Council for consideration at this
meeting forms of the following documents:
(a) a Fiscal Agent Agreement (the "Fiscal Agent Agreement"), between the City and
U.S. Bank National Association, as fiscal agent (the "Fiscal Agent"), providing
for the issuance, execution, delivery and administration of the 2017 Bonds upon
the security of and payable solely from the proceeds of the Special Taxes of
Improvement Area No. 1 and certain prescribed portions of the proceeds of sale of
the 2017 Bonds;
(b) a Purchase Contract (the “Purchase Contract”), between the City and Prager &
Co., LLC (the "Underwriter"), providing for the sale by the City and the purchase
by the Underwriter of the 2017 Bonds;
(c) a Continuing Disclosure Certificate (the “Continuing Disclosure Certificate”), by
which the City agrees to provide an annual report providing certain information
for the benefit of the municipal bond market in general and the owners of the
Bonds in particular; and
(d) a Preliminary Official Statement (the "Preliminary Official Statement"), providing
certain information about the City, CFD No. 2015-1, Improvement Area No. 1,
the Development Project and the owners and developers of the property in
Improvement Area No. 1 to enable prospective purchasers of the 2017 Bonds to
make an informed investment decision; and
WHEREAS, the City Council wishes by this Resolution to approve the forms of the
Fiscal Agent Agreement, Purchase Contract and Continuing Disclosure Certificate and to
authorize the City Manager (or any person designated in writing by the City Manager to act on
his behalf; all references hereafter in this Resolution to the City Manager shall be deemed to
include reference to any such designee) to execute and deliver each of them, subject to such
modifications as the City Manager in his sole discretion deems appropriate following
consultation with the City Attorney or Bond Counsel, Financial Advisor or Special Tax
Consultant to the City for CFD No. 2015-1 and the Bonds; and
WHEREAS, the City Council further wishes by this Resolution to approve the
Preliminary Official Statement and to authorize and direct the delivery thereof to the
Underwriter, subject to such modifications as the City Manager in his sole discretion deems
appropriate following consultation with the City Attorney or the Disclosure Counsel, Financial
Advisor or Special Tax Consultant to the City for CFD No. 2015-1 and the Bonds, and to
authorize and direct the preparation, execution and delivery of a final Official Statement to be
derived therefrom; 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 2017 Bonds as contemplated by this
Resolution and the execution and delivery of the documents referred to herein exist, have
happened and have been performed in due time, form and manner as required by the laws of the
State of California, including the Act. Without limiting the generality of the foregoing, the City
Council hereby finds and determines that the 2017 Bonds and the authorized applications of the
proceeds of sale thereof are in compliance with the City's Local Goals and Policies Concerning
Use of the Mello-Roos Community Facilities Act of 1982;
NOW, THEREFORE, BE IT RESOLVED THAT the City Council of the City of
Dublin hereby finds, determines and resolves as follows:
Section 1. The foregoing recitals are true and correct, and the City Council hereby so
finds and determines.
Section 2. The City Council hereby authorizes the issuance of the 2017 Bonds pursuant to
the Act, this Resolution and the Fiscal Agent Agreement in an aggregate principal amount to be
set forth in the Purchase Contract, subject to the limitation on said principal amount as provided
in Section 4 hereof. The 2017 Bonds shall be issued as the "City of Dublin Improvement Area
No. 1 Community Facilities District No. 2015-1 (Dublin Crossing) Special Tax Bonds, Series
2017." The 2017 Bonds shall be executed in the form set forth in and otherwise as provided in
the Fiscal Agent Agreement.
Section 3. The City Council hereby approves the Fiscal Agent Agreement, the Purchase
Contract and the Continuing Disclosure Certificate in the respective forms presented. The City
Manager is hereby authorized and directed to execute each of these three agreements, for and in
the name and on behalf of the City, subject to such modifications as the City Manager in his sole
discretion deems appropriate following consultation with the City Attorney or the Bond Counsel,
Financial Advisor or Special Tax Consultant to the City for CFD No. 2015-1 and the 2017
Bonds. The City Council hereby authorizes the performance by the City and its officers and
employees of the duties and obligations imposed upon the City and its officers and employees
under the terms of each of the three agreements. Without limiting the generality of the
foregoing, the City shall coordinate with the Fiscal Agent to apply the proceeds of the 2017
Bonds for the purposes and in the amounts as set forth in the Fiscal Agent Agreement.
Section 4. The City Manager is hereby authorized and directed to accept the offer of the
Underwriter to purchase the 2017 Bonds as set forth in the Purchase Contract, as executed by the
Underwriter and by the City Manager, for and in the name and on behalf of the City; provided
that no modifications to the Purchase Contract prior to execution thereof shall authorize an
aggregate principal amount of 2017 Bonds in excess of one-third of the appraised value of the
taxable property within Improvement Area No. 1, as established by an appraisal report prepared
prior to the execution of the Purchase Contract, or result in an underwriter's discount (excluding
original issue discount) in excess of one and one-half percent (1.50 %).
Section 5. The City Council hereby approves the Preliminary Official Statement in the
form presented. The City Manager is hereby authorized and directed to approve changes to the
Preliminary Official Statement prior to its dissemination to the Underwriter and prospective
investors, and to execute and deliver a final Official Statement (the "Official Statement") to be
derived from the Preliminary Official Statement, for and in the name and on behalf of the City,
with such changes or additions thereto as the City Manager in his sole discretion deems
appropriate following consultation with the City Attorney or the Disclosure Counsel, Financial
Advisor or Special Tax Consultant to the City for CFD No. 2015-1 and the 2017 Bonds. The
City Council hereby authorizes the Underwriter to distribute copies of said Preliminary Official
Statement to persons who may be interested in the purchase of the Bonds and to deliver copies of
the Official Statement to all actual purchasers of the 2017 Bonds. The City Manager is hereby
authorized and directed to execute a certificate or certificates to the effect that the Preliminary
Official Statement and the Official Statement were deemed "final" as of their respective dates for
purposes of Rule 15c2 -12 of the Securities Exchange Act of 1934, and the City Manager is
hereby authorized to so deem them final.
Section 6. The City hereby covenants, for the benefit of the owners of the 2017 Bonds, to
commence and diligently pursue to completion any foreclosure action regarding delinquent
installments of any amount levied as a Special Tax for the payment of interest or principal of the
2017 Bonds, said foreclosure action to be commenced and pursued as more completely set forth
in the Fiscal Agent Agreement.
Section 7. The 2017 Bonds, when executed by the prescribed officers of the City, shall be
delivered to the Fiscal Agent for authentication. The Fiscal Agent is hereby requested and
directed to authenticate the 2017 Bonds by executing the Fiscal Agent's certificate of
authentication and registration appearing thereon, and to deliver the 2017 Bonds, when duly
executed and authenticated, to the Underwriter in accordance with written instructions executed
on behalf of the City by the City Manager, which instructions the City Manager is hereby
authorized, for and in the name and on behalf of the City, to execute and deliver to the Fiscal
Agent. Such instructions shall provide for the delivery of the 2017 Bonds to the Underwriter or
its designee in accordance with the Purchase Contract, upon payment of the purchase price
therefor.
Section 8. All actions heretofore taken by the officers and agents of the City with respect
to the establishment of CFD No. 2015-1 and the sale and issuance of the 2017 Bonds are hereby
approved, confirmed and ratified, and the City Manager is hereby authorized and directed to do
any and all things and take any and all actions and execute any and all certificates, agreements
and other documents, which he may deem necessary or advisable in order to consummate the
lawful issuance and delivery of the 2017 Bonds in accordance with this Resolution, and any
certificate, agreement, and other document described in the documents herein approved. Any
document herein approved and executed and delivered by any one of the City Manager shall be a
valid and binding agreement of the City.
Section 9. This Resolution shall take effect upon its adoption.
PASSED, APPROVED, AND ADOPTED by the City Council of the City of Dublin at a
regular meeting held on July 18, 2017, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
APPROVED:
__________________________
Mayor
ATTEST: APPROVED AS TO FORM:
__________________________ __________________________
City Clerk City Attorney
2433351.2
FISCAL AGENT AGREEMENT
by and between the
CITY OF DUBLIN
and
U.S. BANK NATIONAL ASSOCIATION,
as Fiscal Agent
Dated as of _____________ 1, 2017
Relating to:
$_______________
City of Dublin
Improvement Area No. 1
Community Facilities District No. 2015-1
(Dublin Crossing)
Special Tax Bonds, Series 2017
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TABLE OF CONTENTS
ARTICLE I
AUTHORITY AND DEFINITIONS
Section 1.01. Authority for this Agreement ............................................................................................ 2
Section 1.02. Agreement for Benefit of Owners of the Bonds ............................................................... 2
Section 1.03. Definitions ........................................................................................................................ 2
ARTICLE II
THE BONDS
Section 2.01. Principal Amount; Designation ....................................................................................... 12
Section 2.02. Terms of Bonds .............................................................................................................. 12
Section 2.03. Redemption .................................................................................................................... 13
Section 2.04. Form of Bonds................................................................................................................ 16
Section 2.05. Execution and Authentication of Bonds ......................................................................... 16
Section 2.06. Transfer or Exchange of Bonds ..................................................................................... 16
Section 2.07. Bond Register ................................................................................................................ 17
Section 2.08. Temporary Bonds .......................................................................................................... 17
Section 2.09. Bonds Mutilated, Lost, Destroyed or Stolen .................................................................. 17
Section 2.10. Book-Entry Only System ................................................................................................ 18
ARTICLE III
ISSUANCE OF 2017 BONDS
Section 3.01. Issuance and Delivery of 2017 Bonds ........................................................................... 20
Section 3.02. Pledge of Special Tax Revenues ................................................................................... 20
Section 3.03. Limited Obligation .......................................................................................................... 20
Section 3.04. No Acceleration .............................................................................................................. 20
Section 3.05. Validity of Bonds ............................................................................................................ 21
Section 3.06. Parity Bonds ................................................................................................................... 21
ARTICLE IV
PROCEEDS, FUNDS AND ACCOUNTS
Section 4.01. Application of 2017 Bond Proceeds ............................................................................... 23
Section 4.02. Costs of Issuance Fund ................................................................................................. 23
Section 4.03. Reserve Fund................................................................................................................. 24
Section 4.04. Bond Fund...................................................................................................................... 25
Section 4.05. Special Tax Fund ........................................................................................................... 27
Section 4.06. Administrative Expense Fund ........................................................................................ 29
Section 4.07. Improvement Fund ......................................................................................................... 30
Section 4.08. Remainder Taxes Fund ................................................................................................. 31
ARTICLE V
COVENANTS
Section 5.01. Collection of Special Tax Revenues .............................................................................. 32
Section 5.02. Covenant to Foreclose ................................................................................................... 33
Section 5.03. Punctual Payment .......................................................................................................... 34
Section 5.04. Extension of Time for Payment ...................................................................................... 34
Section 5.05. Against Encumbrances .................................................................................................. 34
Section 5.06. Books and Records ........................................................................................................ 34
Section 5.07. Protection of Security and Rights of Owners ................................................................. 34
Section 5.08. Further Assurances ........................................................................................................ 34
Section 5.09. Private Activity Bond Limitations .................................................................................... 34
Section 5.10. Federal Guarantee Prohibition ....................................................................................... 34
Section 5.11. Rebate Requirement ...................................................................................................... 35
Section 5.12. No Arbitrage ................................................................................................................... 35
Section 5.13. Yield of the 2017 Bonds ................................................................................................. 35
Section 5.14. Maintenance of Tax-Exemption ..................................................................................... 35
ii
Section 5.15. Continuing Disclosure .................................................................................................... 35
Section 5.16. Limits on Special Tax Waivers and Bond Tenders ........................................................ 36
Section 5.17. City Bid at Foreclosure Sale .......................................................................................... 36
Section 5.18. Limitation on Principal Amount of Parity Bonds ............................................................. 36
Section 5.19. Amendment of Rate and Method .................................................................................... 36
ARTICLE VI
INVESTMENTS; LIABILITY OF THE CITY
Section 6.01. Deposit and Investment of Moneys in Funds ................................................................. 37
Section 6.02. Liability of City ................................................................................................................ 38
Section 6.03. Employment of Agents by City ....................................................................................... 39
ARTICLE VII
THE FISCAL AGENT
Section 7.01. The Fiscal Agent ............................................................................................................ 40
Section 7.02. Liability of Fiscal Agent .................................................................................................. 41
Section 7.03. Information; Books and Accounts .................................................................................. 42
Section 7.04. Notice to Fiscal Agent .................................................................................................... 42
Section 7.05. Compensation, Indemnification...................................................................................... 43
ARTICLE VIII
MODIFICATION OR AMENDMENT
Section 8.01. Amendments Permitted ................................................................................................. 44
Section 8.02. Owners’ Meetings .......................................................................................................... 45
Section 8.03. Procedure for Amendment with Written Consent of Owners ......................................... 45
Section 8.04. Disqualified Bonds ......................................................................................................... 45
Section 8.05. Effect of Supplemental Agreement ................................................................................ 46
Section 8.06. Endorsement or Replacement of Bonds Issued After Amendments ............................. 46
Section 8.07. Amendatory Endorsement of Bonds .............................................................................. 46
ARTICLE IX
MISCELLANEOUS
Section 9.01. Benefits of Agreement Limited to Parties ...................................................................... 47
Section 9.02. Successor and Predecessor .......................................................................................... 47
Section 9.03. Discharge of Agreement ................................................................................................ 47
Section 9.04. Execution of Documents and Proof of Ownership by Owners ....................................... 48
Section 9.05. Waiver of Personal Liability ............................................................................................ 48
Section 9.06. Notices to and Demands on City and Fiscal Agent ....................................................... 48
Section 9.07. Partial Invalidity .............................................................................................................. 49
Section 9.08. Unclaimed Moneys ........................................................................................................ 49
Section 9.09. Applicable Law ............................................................................................................... 49
Section 9.10. Conflict with Act.............................................................................................................. 49
Section 9.11. Conclusive Evidence of Regularity ................................................................................ 49
Section 9.12. Payment on Business Day ............................................................................................. 50
Section 9.13. State Reporting Requirements....................................................................................... 50
Section 9.14. Counterparts .................................................................................................................. 51
EXHIBIT A: FORM OF 2017 BOND
EXHIBIT B: OFFICER’S CERTIFICATE REQUESTING DISBURSEMENT FROM
IMPROVEMENT FUND
EXHIBIT C: OFFICER’S CERTIFICATE REQUESTING DISBURSEMENT FROM COSTS OF
ISSUANCE FUND
EXHIBIT D: OFFICER’S CERTIFICATE REQUESTING DISBURSEMENT FROM
ADMINISTRATIVE EXPENSE FUND
1
FISCAL AGENT AGREEMENT
THIS FISCAL AGENT AGREEMENT (this “Agreement”) is made and entered into and
dated as of ______________ 1, 2017, by and between the CITY OF DUBLIN, a municipal
corporation and general law city organized and existing under and by virtue of the Constitution
and laws of the State of California (the “City”) for and on behalf of the City of Dublin Community
Facilities District No. 2015-1 (Dublin Crossing) (the “CFD”), and U.S. Bank National Association,
a national banking association duly organized and existing under the laws of the United States
of America with a corporate trust office located in San Francisco, California, as fiscal agent (the
“Fiscal Agent”).
WITNESSETH:
WHEREAS, the City Council of the City (the “City Council”) has formed the CFD under
the provisions of the Mello-Roos Community Facilities Act of 1982, as amended (section 53311
et seq. of the California Government Code) (the “Act”); and
WHEREAS, the City Council, as the legislative body with respect to the CFD, is
authorized under the Act to levy special taxes to pay f or the costs of certain authorized public
capital facilities and capital facilities fees within the CFD and to authorize the issuance of the
Bonds (as defined in Section 1.03) in multiple series, each secured by the Special Taxes (as
defined in Section 1.03) levied on the taxable property within a specified improvement area of
the CFD; and
WHEREAS, on _________, 2017, the City Council adopted Resolution No. __-17 (the
“Resolution”), authorizing the issuance of the 2017 Bonds (as defined in Section 1.03) on behalf
of the CFD, to be secured and to be made payable from proceeds of the Special Tax levied on
the taxable property within Improvement Area No. 1 (as defined in Section 1.03); and
WHEREAS, it is in the public interest and for the benefit of the City, the CFD and the
persons responsible for the payment of special taxes that the City enter into this Agreement to
provide for the issuance of the 2017 Bonds hereunder to finance the acquisition and
construction of certain authorized public capital facilities and the payment of certain authorized
capital facilities fees for the CFD and to provide for the disbursement of proceeds of the 2017
Bonds, the disposition of the Special Taxes securing the 2017 Bonds and the administration and
payment of the 2017 Bonds; and
WHEREAS, the City has determined that all things necessary to cause the 2017 Bonds,
when authenticated by the Fiscal Agent and issued as provided in the Act, the Resolution and
this Agreement, to be legal, valid, binding and limited obligations in accordance with their terms,
and all things necessary to cause the creation, authorization, execution and delivery of this
Agreement and the creation, authorization, execution and issuance of the 2017 Bonds, subject
to the terms hereof, have in all respects been duly authorized.
NOW, THEREFORE, in consideration of the covenants and provisions herein set forth
and for other valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
2
ARTICLE I
AUTHORITY AND DEFINITIONS
Section 1.01. Authority for this Agreement. This Agreement is entered into pursuant
to the Act and the Resolution.
Section 1.02. Agreement for Benefit of Owners of the Bonds. The provisions,
covenants and agreements herein set forth to be performed by or on behalf of the City shall be
for the equal benefit, protection and security of the Owners of the Bonds. All of the Bonds,
without regard to the time or times of their issuance or maturity, shall be of equal rank without
preference, priority or distinction of any of the Bonds over any other thereof, except as expressly
provided in or permitted by this Agreement.
Section 1.03. Definitions. Unless the context otherwise requires, the terms defined in
this Section 1.03 shall, for all purposes of this Agreement, of any Supplemental Agreement, and
of any certificate, opinion or other document herein mentioned, have the meanings herein
specified. All references herein to “Articles,” “Sections” and other subdivisions are to the
corresponding Articles, Sections or subdivisions of this Agreement, and the words “herein,”
“hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and
not to any particular Article, Section or subdivision hereof.
“Act” means the Mello-Roos Community Facilities Act of 1982, as amended, being
Sections 53311 et seq. of the California Government Code.
“Administrative Expenses” means costs directly related to the administration of the CFD
consisting of: the costs of computing the Special Taxes and preparing the annual Special Tax
collection schedules (whether by a City employee or consultant or both) and the costs of
collecting the Special Taxes (whether on the secured property tax roll of the County or
otherwise); the costs of remitting the Special Taxes to the Fiscal Agent; costs of the Fiscal
Agent (including its legal counsel) in the discharge of its duties under this Agreement; the costs
of the City or its consultants relating to the annexation of property to the CFD; the costs of the
City or its designee of complying with the disclosure provisions of the Act and this Agreement,
including those related to public inquiries regarding the Special Tax and both initial and
continuing disclosures to the Original Purchaser and the Owners of the Bonds; the costs of the
City or its designee related to an appeal of the Special Tax; any amounts required to be rebated
to the federal government; an allocable share of the salaries of the City staff directly related to
the foregoing and a proportionate amount of City general administrative overhead related
thereto. Administrative Expenses shall also include amounts advanced by the City for any
administrative purpose of the CFD, including costs related to prepayments of Special Taxes,
recordings related to such prepayments and satisfaction of Special Taxes, amounts advanced
to ensure maintenance of tax exemption of interest on the Bonds, and the costs of prosecuting
foreclosure on account of delinquent Special Taxes.
“Administrative Expense Fund” means the fund designated the “City of Dublin
Improvement Area No. 1 Community Facilities District No. 2015-1 (Dublin Crossing)
Administrative Expense Fund" established and administered under Section 4.06.
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“Administrator” means the person or firm designated in writing to the Fiscal Agent by the
Director of Administrative Services to administer the Special Tax in accordance with the Rate
and Method; provided that in the absence of such written designation, the Director of
Administrative Services shall perform the duties of the Administrator under this Agreement and
the Rate and Method.
“Agreement” means this Fiscal Agent Agreement, as it may be amended or
supplemented from time to time by any Supplemental Agreement adopted pursuant to the
provisions hereof.
“Annual Debt Service” means, for each Bond Year, the sum of (i) the interest due on the
Outstanding Bonds in such Bond Year, assuming that the Outstanding Bonds are retired as
scheduled, and (ii) the principal amount of the Outstanding Bonds due in such Bond Year
(including any mandatory sinking payment due in such Bond Year).
“Auditor” means the Auditor/Controller of the County, or such other official at the County
who is responsible for preparing property tax bills.
“Authorized Officer” means the City Manager, the Assistant City Manager, the Director of
Administrative Services or any other officer or employee authorized by the City Council of the
City or by an Authorized Officer to undertake an action referenced in this Agreement as required
to be undertaken by an Authorized Officer.
“Bond Counsel” and “Bond and Disclosure Counsel” means Meyers, Nave, Riback,
Silver & Wilson, A Professional Law Corporation or any other attorney or firm of attorneys
acceptable to the City and nationally recognized f or expertise in rendering opinions as to the
legality and tax-exempt status of securities issued by public entities.
“Bond” or “Bonds” means the 2017 Bonds and, if the context requires, any Parity Bonds,
at any time Outstanding under this Agreement or any Supplemental Agreement and all of which
are secured by and are payable from proceeds of the Special Taxes of Improvement Area No.
1.
“2017 Bonds” means the City of Dublin Improvement Area No. 1 Community Facilities
District No. 2015-1 (Dublin Crossing) Special Tax Bonds, Series 2017.
“Bond Fund” means the fund designated the “City of Dublin Improvement Area No. 1
Community Facilities District No. 2015-1 (Dublin Crossing) Special Tax Bonds, Bond Fund”
established and administered under Section 4.04.
“Bond Year” means the one-year period beginning on September 2nd in each year and
ending on September 1 in the following year, except that the first Bond Year shall begin on the
Closing Date and shall end on September 1, 20__.
“Boundary Map” means that certain map entitled “Proposed Boundaries of City of Dublin
Community Facilities District No. 2015-1 (Dublin Crossing),” approved by Resolution No. 54-15,
adopted by the Council on April 21, 2015, and recorded in the official records of the Alameda
County Recorder on May 4, 2015, in Book 18 of Maps of Assessment and Community Facilities
Districts, at page 61, as Document No. 2015118036.
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“Business Day” means any day other than (i) a Saturday or a Sunday or (ii) a day on
which banking institutions in the state in which the Fiscal Agent has its principal corporate trust
office are authorized or obligated by law or executive order to be closed.
“Capitalized Interest Account” means the account by that name held by the Fiscal Agent
and established and administered under Section 4.04 (A).
“CDIAC” means the California Debt and Investment Advisory Commission in the Office
of the California State Treasurer, or any successor agency, board or commission.
“CFD” means the City of Dublin Community Facilities District No. 2015-1 (Dublin
Crossing) formed under the Resolution of Formation.
“City” means the City of Dublin, California and any successor thereto.
“City Attorney” means any attorney or firm of attorneys employed by the City in the
capacity of City attorney.
“Closing Date” means the date upon which there is a physical delivery of the 2017
Bonds in exchange for the amount representing the purchase price of the 2017 Bonds by the
Original Purchaser, as set forth in Section 4.01.
“Continuing Disclosure Agreement” shall mean that certain Continuing Disclosure
Agreement executed by the City and the dissemination agent identified therein, dated as of
______________, 2017, as originally executed and as it may be amended from time to time in
accordance with the terms thereof.
“Costs of Issuance” means items of expense payable or reimbursable directly or
indirectly by the City and related to the authorization, sale, delivery and issuance of the 2017
Bonds, which items of expense shall include, but not be limited to, printing costs, costs of
reproducing and binding documents, closing costs, appraisal costs, filing and recording fees,
fees and expenses of counsel to the City, initial fees and charges of the Fiscal Agent including
its first annual administration fees and its legal fees and charges, including the allocated costs
of in-house attorneys, expenses incurred by the City in connection with the issuance of the 2017
Bonds, bond (underwriter’s) discount, legal fees and charges, including those of Bond and
Disclosure Counsel, financial consultant’s fees, charges for execution, authentication,
transportation and safekeeping of the 2017 Bonds and any other costs, charges and fees of a
like nature.
“Costs of Issuance Fund” means the fund designated the “City of Dublin Improvement
Area No. 1 Community Facilities District No. 2015-1 (Dublin Crossing) Special Tax Bonds,
Costs of Issuance Fund” established and administered under Section 4.02.
“City Council” means the City Council of the City in its capacity as the legislative body of
the CFD.
“County” means the County of Alameda, California.
“Dated Date” means the dated date of the 2017 Bonds, which is the Closing Date.
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“Debt Service” means the scheduled amount of interest and amortization of principal
payable on the 2017 Bonds under Sections 2.02 and 2.03 and the scheduled amount of interest
and amortization of principal payable on any Parity Bonds during the period of computation, in
each case excluding amounts scheduled during such period which relate to principal which has
been retired before the beginning of such period.
“Depository” means (a) initially, DTC, and (b) any other Securities Depository acting as
Depository for book-entry under Section 2.10.
“Developer” means Dublin Crossing, LLC, and its successors and assigns.
“Director of Administrative Services” means the official of the City having that title, or
such official's designee, who acts in the capacity as the chief financial officer of the City.
“Director of Public Works” means the official of the City having that title, or such official’s
designee.
“DTC” means The Depository Trust Company, New York, New York, and its successors
and assigns.
“Fair Market Value” means with respect to Permitted Investments, the price at which a
willing buyer would purchase the investment from a willing seller in a bona fide, arm’s length
transaction (determined as of the date the contract to purchase or sell the investment becomes
binding) if the investment is traded on an established securities market (within the meaning of
section 1273 of the Tax Code) and, otherwise, the term “Fair Market Value” means the
acquisition price in a bona fide arm’s length transaction (as referenced above) if (i) the
investment is a certificate of deposit that is acquired in accordance with applicable regulations
under the Tax Code, (ii) the investment is an agreement with specifically negotiated withdrawal
or reinvestment provisions and a specifically negotiated interest rate (for example, a guaranteed
investment contract, a forward supply contract or other investment agreement) that is acquired
in accordance with applicable regulations under the Tax Code, (iii) the investm ent is a United
States Treasury Security—State and Local Government Series that is acquired in accordance
with applicable regulations of the United States Bureau of Public Debt, or (iv) any commingled
investment fund in which the City and related parties do not own more than a ten percent (10%)
beneficial interest if the return paid by such fund is without regard to the source of the
investment.
“Federal Securities” means: (a) any direct general obligations of the United States of
America (including obligations issued or held in book entry form on the books of the Department
of the Treasury of the United States of America), the payment of principal of and interest on
which are unconditionally and fully guaranteed by the United States of America; and (b) any
obligations the principal of and interest on which are unconditionally guaranteed by the United
States of America.
“Fiscal Agent” means U.S. Bank National Association, the Fiscal Agent appointed by the
City and acting as an independent fiscal agent with the duties and powers herein provided, its
successors and assigns, and any other corporation or association which may at any time be
substituted in its place, as provided in Section 7.01.
“Fiscal Year” means the twelve-month period extending from July 1 in a calendar year to
June 30 of the succeeding year, both dates inclusive.
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“Improvement Area No. 1” means the property within the boundary of the CFD and
designated as “Improvement Area No. 1,” as shown on the Boundary Map.
“Improvement Area No. 1 Value” means the market value, as of the date of the appraisal
described below and/or the date of the most recent County real property tax roll, as applicable,
of all parcels of real property in Improvement Area No. 1 subject to the levy of the Special Taxes
and not delinquent in the payment of any Special Taxes then due and owing, including with
respect to such nondelinquent parcels the value of the then existing improvements and any
facilities to be constructed or acquired with any amounts then on deposit in the Improvement
Fund and the Remainder Taxes Fund and with the proceeds of any proposed series of Parity
Bonds, as determined with respect to any parcel or group of parcels by reference to (i) an
appraisal performed within six (6) months of the date of issuance of any proposed Parity Bonds
by an MAI appraiser (the “Appraiser”) selected by the City, or (ii) in the alternative, the assessed
value of all such nondelinquent parcels and improvements thereon as shown on the then
current County real property tax roll available to the Director of Administrative Services. It is
expressly acknowledged that, in determining the Improvement Area No. 1 Value, the City may
rely on an appraisal to determine the value of some or all of the parcels in Improvement Area
No. 1 and/or the most recent County real property tax roll as to the value of some or all of the
parcels in Improvement Area No. 1. Neither the City nor any Authorized Officer shall be liable to
the Owners, the Original Purchaser or any other person or entity in respect of any appraisal
provided for purposes of this definition or by reason of any exercise of discretion made by any
Appraiser pursuant to this definition.
“Improvement Fund” means the fund designated “City of Dublin Improvement Area No. 1
Community Facilities District No. 2015-1 (Dublin Crossing) Improvement Fund,” established
under Section 4.07.
“Independent Financial Consultant” means any consultant or firm of such consultants
appointed by the City or the Director of Administrative Services, and who, or each of whom: (i)
is judged by the Director of Administrative Services to have experience in matters relating to the
issuance and/or administration of bonds under the Act; (ii) is in fact independent and not under
the domination of the City; (iii) does not have any substantial interest, direct or indirect, with or in
the City, or any owner of real property in the CFD, or any real property in the CFD; and (iv) is
not connected with the City as an officer or employee of the City, but who may be regularly
retained to make reports to the City.
“Information Services” means (i) the Municipal Securities Rulemaking Board’s Electronic
Municipal Market Access website and (ii) in accordance with then current guidelines of the
Securities and Exchange Commission, such other addresses and/or such services providing
information with respect to called bonds as the City may designate in an Officer’s Certificate
delivered to the Fiscal Agent.
“Interest Payment Date” means each March 1 and September 1 of every calendar year,
commencing with ___________ 1, 20__.
“Maximum Annual Debt Service” means the largest Annual Debt Service for any Bond
Year after the calculation is made through the final maturity date of any Outstanding Bonds.
“Officer’s Certificate” means a written certificate of the City signed by an Authorized
Officer of the City.
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“Ordinance” means any ordinance of the City Council of the City levying the Special
Taxes, including but not limited to Ordinance 3-15 adopted by the Council on June 16, 2015.
“Original Purchaser” means Prager & Co., LLC, the first purchaser of the 2017 Bonds
from the City.
“Outstanding,” when used as of any particular time with reference to Bonds, means
(subject to the provisions of Section 8.04) all Bonds except (i) Bonds theretofore canceled by
the Fiscal Agent or surrendered to the Fiscal Agent for cancellation; (ii) Bonds paid or deemed
to have been paid within the meaning of Section 9.03; and (iii) Bonds in lieu of or in substitution
for which other Bonds shall have been authorized, executed, issued and delivered by the City
under this Agreement or any Supplemental Agreement.
“Owner” or “Bondowner” means any person who shall be the registered owner of any
Outstanding Bond.
“Parity Bonds” means bonds issued by the City for the CFD in addition to the 2017
Bonds and payable on a parity with any then Outstanding Bonds pursuant to Section 3.06.
“Participating Underwriter” shall have the meaning ascribed thereto in the Continuing
Disclosure Agreement.
“Permitted Investments” means any of the following which at the time of investment
are legal investments under the laws of the State and the City's investment policies for the
moneys proposed to be invested therein (the Fiscal Agent is entitled to conclusively rely on
written investment direction of the City as a determination by the City that such investment is a
legal investment), but only to the extent that the same are acquired at Fair Market Value:
(a) Federal Securities;
(b) bonds, debentures, notes or other evidence of indebtedness issued or
guaranteed by any of the following federal agencies and provided such obligations are backed
by the full faith and credit of the United States of America (stripped securities are only
permitted if they have been stripped by the agency itself): (i) direct obligations or fully
guaranteed certificates of beneficial ownership of the U.S. Export-Import Bank; (ii) certificates
of beneficial ownership of the Farmers Home Administration; (iii) obligations of the Federal
Financing Bank; (iv) debentures of the Federal Housing Administration; (v) participation
certificates of the General Services Administration ; (vi) guaranteed mortgage-backed bonds
or guaranteed pass-through obligations of the Government National Mortgage Association;
(vii) gua ranteed Title XI financings of the U.S. Maritime Administration; and (viii) project
notes, local authority bonds, new communities debentures and U.S. public housing notes and
bonds of the U.S. Department of Housing and Urban Development;
(c) bonds, debentures, notes or other evidence of indebtedness issued or
guaranteed by any of the following non-full faith and credit U.S. government agencies (stripped
securities are only permitted if they have been stripped by the agency itself): (i) senior debt
obligations of the Federal Home Loan Bank System; (ii) participation certificates and senior
debt obligations of the Federal Home Loan Mortgage Corporation; (iii) mortgage -backed
securities and senior debt obligations of the Federal National Mortgage Association (excluding
stripped mortgage securities which are valued greater than par on the portion of unpaid
8
principal); (iv) senior debt obligations of the Student Loan Marketing Association; (v)
obligations (but only the i nterest component of stripped obligations) of the Resolution
Funding Corporation; and (vi) consolidated system-wide bonds) and notes of the Farm Credit
System;
(d) money market funds (including funds of the Fiscal Agent or its affiliates)
registered under the Federal Investment Company Act of 1940, whose shares are registered
under the Federal Securities Act of 1933, and having a rating by S&P of “AAAm -G”, “AAAm”,
or "AAm," or, if rated by Moody’s, rated "Aaa-mf", "Aa-mf' or "A-mf";
(e) certificates of deposit secured at all times by collateral described in (a) or (b)
above, which have a maturity of one year or less, which are issued by commercial banks,
savings and loan associations or mutual savings banks, and such collateral must be held
by a third party, and the Fiscal Agent must have a perfected first security interest in such
collateral;
(f) certificates of deposit, savings accounts, deposit accounts or money market
deposits (including those of the Fiscal Agent and its affiliates) which are fully insured by the
Federal Deposit Insurance Corporation;
(g) investment agreements, including guaranteed investment contracts, forward
purchase agreements and Reserve Account put agreements, which are general obligations of
an entity whose long term debt obligations, or claims paying ability, respectively, is rated in one
of the two highest rating categories by Moody's or S&P;
(h) commercial paper rated, at the time of purchase, "Prime-1" by Moody's and "A 1"
or better by S&P;
(i) bonds or notes issued by any state or municipality which are rated by Moody's
and S&P in one of the two highest rating categories assigned by such agencies;
(j) deposit accounts, federal funds or bankers acceptances with a maximum term of
one year of any bank which has an unsecured, uninsured and unguaranteed obligati on
rating of "Prime -1" or "A3" or better by Moody's and "A-1" or "A" or better by S&P;
(k) repurchase agreements which provide for the transfer of securities from a dealer
bank or securities firm (seller/borrower) to the Fiscal Agent and the transfer of cash from the
Fiscal Agent to the dealer bank or securities firm with an agreement that the dealer bank
or securities firm will repay the cash plus a yield to the Fiscal Agent in exchange for the
securitie s at a specified date, which satisfy the following criteria:
(i) repurchase agreements must be between the Fiscal Agent and (A) a
primary dealer on the Federal Reserve reporting dealer list which falls under the jurisdiction of
the Securities Investors Protection Corporation which are rated "A" or better by Moody's and
S&P, or (B) a bank rated "A" or better by Moody's and S&P;
(ii) the written repurchase agreement contract must include the following:
(A) securities acceptable for transfer, which may be direct U.S. government obligations,
or federal agency obligations backed by the full faith and credit of the U.S. government; (B)
the term of the repurchase agreement may be up to 30 days; (C) the collateral must be
delivered to the Fiscal Agent or a t hird party acting as agent for the Fiscal Agent
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simultaneous with payment (perfection by possession of certificated securities); (D) the
Fiscal Agent must have a perfected first priority security interest in the collateral; (E) the
collateral must be free and clear of third -party liens and, in the case of a broker which falls .
under the jurisdiction of the Securities Investors Protection Corporation, are not subject
to a repurchase agreement or a reverse repurchase agreement; (F) failure to maintain the
requisite collateral percentage, after a two -day restoration period, will require the Fiscal
Agent to liquidate the collateral; (G) the securities must be valued weekly, marked -to-
market at current market price plus accrued interest and the value of collateral must be equal to
104% of the amount of cash transferred by the Fiscal Agent to the dealer bank or
securities firm under the repurchase agreement plus accrued interest (unless the securities
used as collateral are obligations of the Federal National Mortgage Association or the
Federal Home Loan Mortgage Corporation, in which case the collateral must be equal to
105% of the amount of cash transferred by the Fiscal Agent to the dealer bank or
securities firm under the repurchase agreement plus accrued interest). If the value of
securities held as collateral falls below 104% of the value of the cash transferred by the Fiscal
Agent, then additional cash and/or acceptable securities must be transferred; and
(iii) a legal opinion must be delivered to the Fiscal Agent to the effect that the
repurchase agreement meets guidelines under state law for legal investment of public funds;
(l) the Local Agency Investment Fund of the State of California, created
pursuant to Section 16429.1 of the California Government Code, to the extent the Fiscal Agent
is authorized to register such investment in its name; and
(k) the California Asset Management Program.
“Principal Office” means such corporate trust office of the Fiscal Agent as may be
designated from time to time by written notice from the Fiscal Agent to the City, initially being at
the address set forth in Section 9.06, or such other office designated by the Fiscal Agent from
time to time; except that with respect to presentation of Bonds for payment or for registration of
transfer and exchange such term shall mean the office or agency of the Fiscal Agent at which,
at any particular time, its corporate trust agency business shall be conducted, initially in St. Paul
MN.
“Priority Administrative Expenses Amount” means (i) for Fiscal Year 20__-__, the
amount of $25,000 and (ii) for each succeeding Fiscal Year, the sum of (A) the Priority
Administrative Expenses Amount for the preceding Fiscal Year plus (B) 2% of the Priority
Administrative Expenses Amount for the preceding Fiscal Year.
“Proceeds” when used with reference to the Bonds, means the face amount of the
Bonds, plus any accrued interest and original issue premium, less any original issue and/or
underwriter’s discount.
“Project” means those items described as the “Authorized CFD Public Improvements” in
the Resolution of Intention.
“Rate and Method” means the Rate and Method of Apportionment of Special Tax for
Improvement Area No. 1, as set forth in Exhibit B to the Resolution of Formation, as it may
subsequently be amended in compliance with its provisions and the provisions of this
Agreement and the Act.
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“Rating Agency” means any nationally recognized rating agency.
“Record Date” means the fifteenth day of the calendar month next preceding the
applicable Interest Payment Date, whether or not such day is a Business Day.
“Refunding Bonds” means bonds issued by the City for the CFD, the net proceeds of
which are used to refund all or a portion of the then-Outstanding Bonds; provided that (i) the
total interest cost to maturity on the refunding bonds plus the principal amount of the refunding
bonds is less than the total interest cost to maturity on the Bonds to be refunded plus the
principal amount of the Bonds to be refunded and (ii) the final maturity of the Refunding Bonds
is not later than the final maturity of the Bonds being refunded.
“Remainder Taxes” means that amount of Special Tax Revenues received by the City on
account of Special Taxes for Improvement Area No. 1 during the one-year period ending on
September 2 of each Fiscal Year, excluding proceeds of Special Tax Prepayments, which
exceeds the sum of the following: (i) amounts paid during said one-year period on account of
principal of and interest on the Bonds, exclusive of the amount of (a) interest paid from the
Capitalized Interest Account, if any, and (b) any such principal and interest paid from proceeds
of Special Tax Prepayments, if any, (ii) amounts included in the Special Tax Requirement for
the prior Fiscal Year on account of Administrative Expenses and (iii) amounts, if any, deposited
into the Reserve Fund during said one-year period to restore the balance in the Reserve Fund
to the Reserve Requirement.
“Remainder Taxes Fund” means the fund designated the “City of Dublin Improvement
Area No. 1 Community Facilities District No. 2015-1 (Dublin Crossing) Remainder Taxes Fund,”
to be established and administered by the City under Section 4.08.
“Reserve Fund” means the fund designated the “City of Dublin Improvement Area No. 1
Community Facilities District No. 2015-1 (Dublin Crossing), Special Tax Bonds, Reserve Fund”
established and administered under Section 4.03.
“Reserve Requirement” means, as of the date of any calculation, an amount equal to the
least of (i) Maximum Annual Debt Service on the Outstanding Bonds, (ii) 125% of average
Annual Debt Service on the Outstanding Bonds and (iii) 10% of the original principal amount of
the Bonds.
“Resolution” or “Resolution of Issuance” means Resolution No. __-17 adopted by the
Council on ______________, 2017, authorizing the issuance of the 2017 Bonds.
“Resolution of Formation” means Resolution No. 96-15 adopted by the Council on June
2, 2015, forming the CFD.
“Resolution of Intention” means Resolution No. 56-15 adopted by the Council on April
21, 2015.
“Securities Depositories” means DTC and, in accordance with then current guidelines of
the Securities and Exchange Commission, such other securities depositories as the City may
designate in an Officer’s Certificate delivered to the Fiscal Agent.
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“Special Tax Fund” means the special fund designated “City of Dublin Improvement
Area No. 1 Community Facilities District No. 2015-1 (Dublin Crossing), Special Tax Fund”
established and administered under Section 4.05.
“Special Tax Prepayments” means the proceeds of any Special Tax prepayments
received by the City with respect to Improvement Area No. 1, as calculated pursuant to the Rate
and Method, less any administrative fees or penalties collected as part of any such prepayment.
“Special Tax Prepayments Account” means the account by that name established within
the Bond Fund by Section 4.04(A) hereof.
“Special Tax Revenues” means the proceeds of the Special Tax received by the City,
including (a) any scheduled payments thereof, (b) any Special Tax Prepayments, (c) the
proceeds of the redemption of any delinquent payments of the Special Tax and (d) the proceeds
of redemption or sale of property sold as a result of foreclosure on account of delinquent
payments of the Special Tax, but excluding therefrom any penalties collected in connection with
any such foreclosure.
“Special Tax” or “Special Taxes” means the Special Tax (as defined in the Rate and
Method) levied by the City pursuant to the Rate and Method within Improvement Area No. 1
under the Act, the Ordinance and this Agreement.
“State” means the State of California.
“Supplemental Agreement” means an agreement the execution of which is authorized by
a resolution which has been duly adopted by the City Council under the Act and which
agreement is amendatory of or supplemental to this Agreement, but only if and to the extent that
such agreement is specifically authorized hereunder.
“Tax Code” means the Internal Revenue Code of 1986 as in effect on the date of
issuance of the Bonds or (except as otherwise referenced herein) as it may be amended to
apply to obligations issued on the date of issuance of the Bonds, together with applicable
temporary and final regulations promulgated, and applicable official public guidance published,
under the Tax Code.
“Term Bonds” means the 2017 Bonds maturing on September 1, 20__.
“2017 Bonds” means the Bonds so designated and authorized to be issued under
Section 2.01 hereof.
“Verification Agent” means an individual or firm of individuals appointed by the City or
the Director of Administrative Services to advise the City with respect to the sufficiency of cash
and/or Federal Securities, as provided by subsection (C) of Section 9.03 hereof, and who, or
each of whom, (i) is judged by the Director of Administrative Services to have experience in
matters relating to such determinations; (ii) is in fact independent and not under the domination
of the City; (iii) does not have any substantial interest, direct or indirect, with or in the City, or
any owner of real property in the CFD, or any real property in the CFD; and (iv) is not connected
with the City as an officer or employee of the City, but who may be regularly retained to make
reports to the City.
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ARTICLE II
THE BONDS
Section 2.01. Principal Amount; Designation. The 2017 Bonds in the aggregate
principal amount of _____________________________________ Dollars ($_________) are
hereby authorized to be issued by the City for the CFD under and subject to the terms of the
Act, the Resolution, this Agreement and other applicable laws of the State of California. The
2017 Bonds shall be designated as the “City of Dublin Improvement Area No. 1 Community
Facilities District No. 2015-1 (Dublin Crossing) Special Tax Bonds, Series 2017”.
Section 2.02. Terms of the 2017 Bonds.
(A) Form; Denominations. The 2017 Bonds shall be issued as fully registered
Bonds without coupons. The 2017 Bonds shall be lettered and numbered in a customary
manner as determined by the Fiscal Agent. The 2017 Bonds shall be issued in the
denominations of $5,000 or any integral multiple in excess thereof.
(B) Date of 2017 Bonds. The 2017 Bonds shall be dated the Closing Date.
(C) CUSIP Identification Numbers. “CUSIP” identification numbers may, at the
election of the Original Purchaser of the Bonds, be imprinted on the Bonds, but such numbers
shall not constitute a part of the contract evidenced by the Bonds and any error or omission with
respect thereto shall not constitute cause for refusal of any purchaser to accept delivery of and
pay for the Bonds. In addition, failure on the part of the City or the Fiscal Agent to use such
CUSIP numbers in any notice to Owners shall not constitute an event of default or any violation
of the City’s contract with such Owners and shall not impair the effectiveness of any such
notice.
(D) Maturities; Interest Rates. The 2017 Bonds shall mature and become payable
on each September 1 in the principal amounts, and shall bear interest at the rates per annum,
indicated in the below table.
Maturity
(September 1)
Principal
Amount
Interest
Rate
20__ $ %
20__
20__
20__
20__
20__
20__
20__
20__
20__
20__
20__
20__
20__
13
20__
20__
20__
20__
20__
20__*
_____________
* Term Bond
(E) Interest. The 2017 Bonds shall bear interest at the rates set forth above payable
on the Interest Payment Dates in each year. Interest on all Bonds shall be calculated on the
basis of a 360-day year composed of twelve 30-day months. Each 2017 Bond shall bear
interest from the Interest Payment Date next preceding the date of authentication thereof unless
(i) it is authenticated on an Interest Payment Date, in which event it shall bear interest from such
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
shall bear interest from such Interest Payment Date, or (iii) it is authenticated on or before the
Record Date preceding the first Interest Payment Date, in which event it shall bear interest from
the Dated Date; provided, however, that if at the time of authentication of a 2017 Bond, interest
is in default thereon, such 2017 Bond shall bear interest from the Interest Payment Date to
which interest has previously been paid or made available for payment thereon.
(F) Method of Payment. Interest on the Bonds (including the final interest payment
upon maturity or earlier redemption), is payable on the applicable Interest Payment Date by
check of the Fiscal Agent mailed by first class mail to the registered Owner thereof at such
registered Owner’s address as it appears 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 made on such Interest Payment Date upon written instructions of any Owner of
$1,000,000 or more in aggregate principal amount of Bonds delivered to the Fiscal Agent prior
to the applicable Record Date, which instructions shall continue in effect until revoked in writing,
or until such Bonds are transferred to a new Owner. The interest, principal of and any premium
on the Bonds are payable in lawful money of the United States of America, with principal and
any premium payable upon surrender of the Bonds at the Principal Office of the Fiscal Agent. All
Bonds paid by the Fiscal Agent pursuant this Section shall be canceled by the Fiscal Agent.
The Fiscal Agent shall destroy the canceled Bonds and issue a certificate of destruction of such
Bonds to the City.
Section 2.03. Redemption.
(A) Redemption Provisions.
(i) Optional Redemption. The 2017 Bonds maturing on or after September
1, 20__ are subject to redemption prior to their stated maturities, on any date on and
after September 1, 20__, in whole or in part, at a redemption price equal to the principal
amount of the 2017 Bonds to be redeemed, together with accrued interest thereon to the
date fixed for redemption, without premium.
(ii) Mandatory Partial Redemption. The Term Bonds maturing on
September 1, 20__ are subject to mandatory partial redemption in part by lot, from
payments made by the City from the Bond Fund, at a redemption price equal to the
principal amount thereof to be redeemed, together with accrued interest to the
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redemption date, without premium, in the aggregate respective principal amounts all as
set forth in the following table:
Mandatory Partial
Redemption Date
(September 1)
Principal Amount
Subject to Redemption
20__ $
20__
20__
20__
20__
20__
20__
20__
20__
20__ (Maturity)
Provided, however, if some but not all of the Term Bonds have been redeemed
under subsection (i) above or subsection (iii) below, the total amount of all future
Mandatory Partial Redemptions shall be reduced by the aggregate principal amount of
Term Bonds so redeemed, to be allocated among such Mandatory Partial Redemption
Dates on a pro rata basis in integral multiples of $5,000 as determined by or on behalf of
the City, notice of which determination (which shall consist of a revised mandatory partial
redemption schedule) shall be given by the City to the Fiscal Agent.
(iii) Redemption from Special Tax Prepayments. Special Tax Prepayments
and any corresponding transfers from the Reserve Fund pursuant to Section 4.03(F)
shall be used to redeem 2017 Bonds on the next Interest Payment Date for which notice
of redemption can timely be given under Section 2.03(D), among maturities so as to
maintain substantially the same debt service profile for the 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 2017 Bonds to be redeemed), as set forth
below, together with accrued interest to the date fixed for redemption:
Redemption Date Redemption Price
Any Interest Payment Date on or before March 1, 20__ 103%
On September 1, 20__ and March 1, 20__ 102
On September 1, 20__ and March 1, 20__ 101
On September 1, 20__ and any Interest Payment Date thereafter 100
(B) Notice to Fiscal Agent. The City shall give the Fiscal Agent written notice of its
intention to redeem Bonds under subsection (A)(i) and (A)(iii) not less than forty-five (45) days
prior to the applicable redemption date or such lesser number of days as shall be allowed by the
Fiscal Agent in the sole determination of the Fiscal Agent, such notice to the Fiscal Agent for the
convenience of the Fiscal Agent in performing its duties hereunder.
(C) Purchase of Bonds in Lieu of Redemption. In lieu of redemption under
Section 2.03(A), moneys in the Bond Fund or other funds provided by the City may be used and
withdrawn by the Fiscal Agent for purchase of Outstanding 2017 Bonds, upon the filing with the
Fiscal Agent of an Officer’s Certificate requesting such purchase, at public or private sale as
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and when, and at such prices (including brokerage and other charges) as such Officer’s
Certificate may provide, but in no event may 2017 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 2017 Bonds were to be redeemed in accordance with this
Agreement. Any 2017 Bonds purchased pursuant to this Section 2.03(C) shall be treated as
outstanding 2017 Bonds under this Fiscal Agent Agreement, except to the extent otherwise
directed by the Director of Administrative Services.
(D) Redemption Procedure by Fiscal Agent.
(i) Notices. The Fiscal Agent shall cause notice of any redemption to be
mailed by first class mail, postage prepaid, at least thirty (30) days but not more than
sixty (60) days prior to the date fixed for redemption, to the Securities Depositories, to
one or more Information 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; but such mailing shall not be a condition
precedent to such redemption and failure to mail or to receive any such notice, or any
defect therein, shall not affect the validity of the proceedings for the redemption of such
Bonds.
(ii) Contents of Notices. Such notice shall state the redemption date and
the redemption price and, if less than all of the then Outstanding Bonds are to be called
for redemption shall state as to any Bond called in part the principal amount thereof to
be redeemed, and shall require that such Bonds be then surrendered at the Principal
Office of the Fiscal Agent for redemption at the said redemption price, and shall state
that further interest on such Bonds will not accrue from and after the redemption date.
The cost of mailing any such redemption notice and any expenses incurred by the Fiscal
Agent in connection therewith shall be paid by the City from amounts in the
Administrative Expense Fund.
The City has the right to rescind any notice of the optional redemption of Bonds
by written notice to the Fiscal Agent on or prior to the date fixed for redemption. Any
notice of optional redemption shall be cancelled and annulled if for any reason funds will
not be or are not available on the date fixed for redemption for the payment in full of the
Bonds then called for redemption, and such cancellation shall not constitute a default
under this Agreement. The City and the Fiscal Agent have no liability to the Owners or
any other party related to or arising from such rescission of redemption. The Fisc al
Agent shall mail notice of such rescission of redemption in the same manner as the
original notice of redemption was sent under this Section.
(iii) Partial Redemption. Whenever provision is made in this Agreement for
the redemption of less than all of the Bonds, the Fiscal Agent shall select the Bonds to
be redeemed, from all Bonds or such given portion thereof not previously called for
redemption, among maturities so as to maintain substantially the same debt service
profile for the Bonds as in effect prior to such redemption, and by lot within a maturity.
(iv) New Bonds. Upon surrender of Bonds redeemed in part only, the City
shall execute and the Fiscal Agent shall authenticate and deliver to the Owner, at the
expense of the City, a new Bond or Bonds, of the same series and maturity, of
authorized denominations in aggregate principal amount equal to the unredeemed
portion of the Bond or Bonds of such Owner.
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(E) 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 shall have been deposited in the Bond Fund, such Bonds so called shall
cease to be entitled to any benefit under this Agreement other than the right to r eceive payment
of the redemption price, and no interest shall accrue thereon on or after the redemption date
specified in the notice of redemption. All Bonds redeemed and purchased by the Fiscal Agent
under this Section 2.03 shall be canceled by the Fiscal Agent. The Fiscal Agent shall destroy
the canceled Bonds in accordance with the Fiscal Agent’s retention policy then in effect.
Section 2.04. Form of Bonds. The 2017 Bonds, the Fiscal Agent’s certificate of
authentication and the assignment, to appear thereon, shall be substantially in the forms,
respectively, set forth in Exhibit A attached hereto and by this reference incorporated herein,
with necessary or appropriate variations, omissions and insertions, as permitted or required by
this Agreement, the Resolution and the Act.
Section 2.05. Execution and Authentication of Bonds.
(A) Execution. The Bonds shall be executed on behalf of the City by the manual or
facsimile signatures of its Mayor and its City Clerk who are in office on the date of execution of
this Agreement or at any time thereafter, and the seal of the City shall be impressed, imprinted
or reproduced by facsimile thereon. If any officer whose signature appears on any Bond ceases
to be such officer before delivery of the Bonds to the Owner, such signature shall nevertheless
be as effective as if the officer had remained in office until the delivery of the Bonds to the
Owner. Any Bond may be signed and attested on behalf of the City by such persons as at the
actual date of the execution of such Bond shall be the proper officers of the City although at the
nominal date of such Bond any such person shall not have been such officer of the City.
(B) Authentication. Only such Bonds as shall bear thereon a certificate of
authentication in substantially the form set forth in Exhibit A, executed and dated by the Fiscal
Agent, shall be valid or obligatory for any purpose or entitled to the benefits of this Agreement,
and such certificate of authentication of the Fiscal Agent shall be conclusive evidence that the
Bonds registered hereunder have been duly authenticated, registered and delivered hereunder
and are entitled to the benefits of this Agreement.
Section 2.06. Transfer or Exchange of Bonds. Any Bond may, in accordance with its
terms, be transferred, upon the books required to be kept under the provisions of Section 2.07
by the person in whose name it is registered, in person or by such person’s 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. Bonds may be
exchanged at the Principal Office of the Fiscal Agent solely for a like aggregate principal amount
of Bonds of authorized denominations and of the same maturity. The cost for any services
rendered or any expenses incurred by the Fiscal Agent in connection with any such transfer or
exchange shall be paid by the City from amounts in the Administrative Expense Fund. The
Fiscal Agent shall collect from the Owner requesting such transfer or exchange any tax or other
governmental charge required to be paid with respect to such transfer or exchange. Whenever
any Bond or Bonds shall be surrendered for transfer or exchange, the City shall execute and the
Fiscal Agent shall authenticate and deliver a new Bond or Bonds, for a like aggregate principal
amount. No transfers or exchanges of Bonds shall 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
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respect to a Bond after such Bond has been selected for redemption; or (iii) between a Record
Date and the succeeding Interest Payment Date.
Section 2.07. Bond Register. The Fiscal Agent will keep, or cause to be kept, at its
Principal Office sufficient books for the registration and tr ansfer of the Bonds which books shall
show the series number, date, amount, rate of interest and last known owner of each Bond and
shall at all times be open to inspection by the City during regular business hours upon
reasonable notice; and, upon presentation for such purpose, the Fiscal Agent shall, under such
reasonable regulations as it may prescribe, register or transfer or cause to be registered or
transferred, on said books, the ownership of the Bonds as hereinbefore provided. 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 Owner as it appears in the Bond register for any and all purposes.
Section 2.08. Temporary Bonds. The Bonds may be initially issued in temporary form
exchangeable for definitive Bonds when ready for delivery. The temporary Bonds may be
printed, lithographed or typewritten, shall be of such authorized denominations as may be
determined by the City, and may contain such reference to any of the provisions of this
Agreement as may be appropriate. Every temporary Bond shall be executed by the City upon
the same conditions and in substantially the same manner as the definitive Bonds. If the City
issues temporary Bonds, it will execute and furnish definitive Bonds without delay and
thereupon the temporary Bonds shall be surrendered, for cancellation, in exchange for the
definitive Bonds at the Principal Office of the Fiscal Agent or at such other location as the Fiscal
Agent shall designate, and the Fiscal Agent shall authenticate and deliver in exchange for such
temporary Bonds an equal aggregate principal amount of definitive Bonds of authorized
denominations. Until so exchanged, the temporary Bonds shall be entitled to the same benefits
under this Agreement as definitive Bonds authenticated and delivered hereunder.
Section 2.09. Bonds Mutilated, Lost, Destroyed or Stolen.
(A) Mutilated. If any Bond shall become mutilated, at the expense of the Owner of
such Bond, the City shall execute and the Fiscal Agent shall authenticate and deliver a
replacement Bond of like tenor and principal amount in exchange and substitution for the Bond
so mutilated, but only upon surrender to the Fiscal Agent of the Bond so mutilated. Every
mutilated Bond so surrendered to the Fiscal Agent shall be canceled by it and destroyed by the
Fiscal Agent, in accordance with the Fiscal Agent’s retention policy then in effect.
(B) Destroyed or Stolen. If any Bond shall be lost, destroyed or stolen, the City
shall execute and the Fiscal Agent shall authenticate and deliver a replacement Bond of like
tenor and principal amount in lieu of and in substitution for the Bond so lost, destroyed or stolen,
at the expense of the Owner, but only following provision by the Owner to the Fiscal Agent of
indemnity for the City and the Fiscal Agent satisfactory to the Fiscal Agent. The City may require
payment of a sum not exceeding the actual cost of preparing each a replacement Bond
delivered under this Section, and the City and the Fiscal Agent may require payment of the
expenses which may be incurred by the City and the Fiscal Agent for the preparation, execution,
authentication and delivery thereof. Any Bond delivered under the provisions of this Section in
lieu of any Bond alleged to be lost, destroyed or stolen shall constitute an original additional
contractual obligation on the part of the City whether or not the Bond so alleged to be lost,
destroyed or stolen is at any time enforceable by anyone, and shall be equally and
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proportionately entitled to the benefits of this Agreement with all other Bonds issued under this
Agreement.
(C) Additional Supply. If the Fiscal Agent has an insufficient supply of
unauthenticated printed Bonds for such purpose, it shall communicate with the Director of
Administrative Services with respect to the printing of an additional supply of Bonds, in such
quantities and as otherwise approved in writing by the Director of Administrative Services.
Section 2.10. Book-Entry Only System. DTC shall act as the initial Depository for the
Bonds. One Bond for each maturity of each series of the Bonds shall be initially executed,
authenticated, and delivered as set forth herein with a separate fully registered certificate (in
print or typewritten form). Upon initial execution, authentication, and delivery, the ownership of
the Bonds shall be registered in the Bond register kept by the Fiscal Agent for the Bonds in the
name of Cede & Co., as nominee of DTC or such other nominee as DTC shall appoint in writing.
The Authorized Officers of the City and the Fiscal Agent are hereby authorized to take
any and all actions as may be necessary and not inconsistent with this Agreement to qualify the
Bonds for the Depository's book-entry system, including the execution of the Depository's
required representation letter.
With respect to Bonds registered in the Bond register in the name of Cede & Co., as
nominee of DTC, neither the City nor the Fiscal Agent shall have any responsibility or obligation
to any broker-dealer, bank, or other financial institution for which DTC holds Bonds as
Depository from time to time (the “DTC Participants”) or to any person for which a DTC
Participant acquires an interest in the Bonds (the “Beneficial Owners”). Without limiting the
immediately preceding sentence, neither the City nor the Fiscal Agent shall have any
responsibility or obligation with respect to (i) the accuracy of the records of DTC, Cede & Co., or
any DTC Participant with respect to any ownership interest in the Bonds, (ii) the delivery to any
DTC Participant, any Beneficial Owner, or any other person, other than DTC, of any notice with
respect to the Bonds, including any Bonds to be redeemed in the event the City elects to
redeem the Bonds, in part, (iii) the selection by the Depository of the beneficial interests in the
Bonds to be redeemed in the event the City elects to redeem the Bonds in part, (iv) the
payments to any DTC Participant, any Beneficial Owner, or any person, other than DTC, of any
amount with respect to the principal of or interest or premium on the Bonds, or (v) any consent
given or other action taken by the Depository as Owner of the Bonds.
Except as set forth above, the City and the Fiscal Agent may treat as and deem DTC to
be the absolute Owner of each Bond, for which DTC is acting as Depository for the purpose of
payment of the principal of and premium and interest on such Bonds, for the purpose of giving
notices of redemption and other matters with respect to such Bonds, for the purpose of
registering transfers with respect to such Bonds, and for all purposes whatsoever. The Fiscal
Agent on behalf of the City shall pay all principal of and premium and interest on the Bonds only
to or upon the order of the Owners as shown on the Bond register, and all such payments shall
be valid and effective to fully satisfy and discharge all obligations with respect to the principal of
and premium and interest on the Bonds to the extent of the sums or sums so paid.
No person other than an Owner, as shown on the Bond register, shall receive a physical
Bond. Upon delivery by DTC to the City and the Fiscal Agent of written notice to the effect the
DTC has determined to substitute a new nominee in place of Cede & Co., and subject to the
transfer provisions in Section 2.06 hereof, references to “Cede & Co.” in this Section 2.10 shall
refer to such new nominee of DTC.
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DTC may determine to discontinue providing its services with respect to the Bonds at
any time by giving written notice to the City and to the Fiscal Agent during any time that the
Bonds are Outstanding, and discharging its responsibilities with respect thereto under
applicable law. The City may terminate the services of DTC with respect to the Bonds if it
determines that DTC is unable to discharge its responsibilities with respect to the Bonds or that
continuation of the system of book-entry transfer through DTC is not in the best interest of the
Beneficial Owners, and the City shall mail notice of such termination to the Fiscal Agent.
Upon termination of the services of DTC as provided in the previous paragraph, and if no
substitute Depository willing to undertake the functions hereunder can be found which is willing
and above to undertake such functions upon reasonable or customary terms, or if the City
determines that it is in the best interest of the Beneficial Owners of the Bonds that they be able
to obtain certified Bonds, the Bonds shall no longer be restricted to being registered in the Bond
register of the Fiscal Agent in the name of Cede & Co., as nominee of DTC, but may be
registered in whatever name or names the Owners shall designate at that time, in accordance
with Section 2.06.
To the extent that the Beneficial Owners are designated as the transferee by the
Owners, in accordance with Section 2.06, the Bonds will be delivered to such Beneficial
Owners.
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ARTICLE III
ISSUANCE OF 2017 Bonds
Section 3.01. Issuance and Delivery of 2017 Bonds. At any time after the execution
of this Agreement, the City may issue the 2017 Bonds for the CFD in the aggregate principal
amount set forth in Section 2.01 and deliver the 2017 Bonds to the Fiscal Agent for
authentication and delivery to the Original Purchaser. The Authorized Officers of the City are
hereby authorized and directed to execute and deliver any and all documents and instruments
necessary to cause the issuance of the 2017 Bonds and to provide for payment of Costs of
Issuance and costs of the Project in accordance with the provisions of the Act, the Resolution
and this Agreement, and to do or cause to be done any and all acts and things necessary or
convenient for the timely delivery of the 2017 Bonds to the Original Purchaser. The Fiscal
Agent is hereby authorized and directed to authenticate the 2017 Bonds and deliver them to the
Original Purchaser, upon receipt of the Proceeds of the 2017 Bonds in the amount set forth in
Section 4.01.
Section 3.02. Pledge of Special Tax Revenues. The Bonds shall be secured by a first
pledge (which pledge shall be effected in the manner and to the extent herein provided) of all of
the Special Tax Revenues (other than the Special Tax Revenues to be deposited into the
Administrative Expense Fund pursuant to clause (i) of the second paragraph of Section 4.05(A)
and the Special Tax Revenues deposited into the Remainder Taxes Fund pursuant to Section
4.08) and all moneys deposited in the Bond Fund (including the Capitalized Interest Account
and the Special Tax Prepayments Account) and the Reserve Fund, and, until disbursed as
provided herein, in the Special Tax Fund. The Special Tax Revenues (other than the Special
Tax Revenues to be deposited into the Administrative Expense Fund pursuant to clause (i) of
the second paragraph of Section 4.05(A) and the Special Tax Revenues deposited into the
Remainder Taxes Fund pursuant to Section 4.08) and all moneys deposited into such funds
(except as otherwise provided herein) are hereby dedicated to the payment of the principal of,
and interest and any premium on, the Bonds as provided herein and in the Act until all of the
Bonds have been paid and retired or until moneys or Federal Securities have been set aside
irrevocably for that purpose under Section 9.03.
Amounts in the Improvement Fund, the Administrative Expense Fund, the Costs of
Issuance Fund and the Remainder Taxes Fund are not pledged to the repayment of the Bonds.
The Project is not pledged to the repayment of the Bonds, nor are the proceeds of any
condemnation or insurance award received by the City with respect to the Project.
Section 3.03. Limited Obligation. All obligations of the City under this Agreement and
the Bonds shall not be general obligations of the City, but shall be limited obligations, payable
solely from the Special Tax Revenues (other than the Special Tax Revenues to be deposited
into the Administrative Expense Fund pursuant to clause (i) of the second paragraph of Section
4.05(A) and the Special Tax Revenues deposited into the Remainder Taxes Fund) and the
funds pledged therefor hereunder. Neither the faith and credit nor the taxing power of the City
(except to the limited extent set forth herein) or of the State of California or any political
subdivision thereof is pledged to the payment of the Bonds.
Section 3.04. No Acceleration. The principal of the Bonds shall not be subject to
acceleration hereunder. Nothing in this Section shall in any way prohibit the redemption of
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Bonds under Section 2.03, or the defeasance of the Bonds and discharge of this Agreement
under Section 9.03.
Section 3.05. Validity of Bonds. The validity of the authorization and issuance of the
Bonds shall not be dependent upon the completion of the construction or acquisition of the
Project or upon the performance by any person of such person’s obligation with respect to the
Project.
Section 3.06. Parity Bonds. In addition to the 2017 Bonds, the City may issue Parity
Bonds in such principal amount as shall be determined by the City, subject to the limitation set
forth in Section 5.18, under a Supplemental Agreement entered into between the City and the
Fiscal Agent. Any such Parity Bonds shall constitute Bonds hereunder and shall be secured by
a lien on the Special Tax Revenues (other than the Special Tax Revenues to be deposited into
the Administrative Expense Fund pursuant to clause (i) of the second paragraph of Section
4.05(A) and the Special Tax Revenues deposited into the Remainder Taxes Fund) and funds
pledged for the payment of the Bonds hereunder on a parity with all other Bonds Outstanding
hereunder. The City may issue such Parity Bonds subject to the following specific conditions
precedent:
(A) Compliance. The City shall be in compliance with all covenants set forth
in this Agreement and all Supplemental Agreements, and issuance of the Parity Bonds
shall not cause the City to exceed the limitation on debt (as defined in the Act) for
Improvement Area No. 1.
(B) Same Payment Dates. The Supplemental Agreement providing for the
issuance of such Parity Bonds shall provide that interest thereon shall be payable on
Interest Payment Dates, and principal thereof shall be payable on September 1 in any
year in which principal is payable on the Parity Bonds (provided that there shall be no
requirement that any Parity Bonds pay interest on a current basis).
(C) Separate Funds; Reserve Fund Deposit. The Supplemental Agreement
providing for the issuance of such Parity Bonds may provide for the establishment of
separate funds and accounts and may, in the alternative, provide for subaccounts within
the funds and accounts established hereunder. Proceeds of the Parity Bonds shall be
deposited into the Reserve Fund in the amount that shall cause the balance in the
Reserve Fund to be equal to the Reserve Requirement for the Bonds to be outstanding
following issuance of the Parity Bonds.
(D) Value. The Improvement Area No. 1 Value shall be at least three (3)
times the sum of: (i) the aggregate principal amount of all Bonds then Outstanding, plus
(ii) the aggregate principal amount of the series of Parity Bonds proposed to be issued,
plus (iii) the aggregate principal amount of any fixed assessment liens on the parcels in
the CFD subject to the levy of Special Taxes, plus (iv) a portion of the aggregate
principal amount of any and all other community facilities district bonds then outstanding
and payable at least partially from special taxes to be levied on parcels of land within the
CFD (the “Other District Bonds”) equal to the aggregate outstanding principal amount of
the Other District Bonds multiplied by a fraction, the numerator of which is the amount of
special taxes levied for the Other District Bonds on parcels of land within the CFD, and
the denominator of which is the total amount of special taxes levied for the Other District
Bonds on all parcels of land against which the special taxes are levied to pay the Other
District Bonds (such fraction to be determined based upon the maximum special taxes
22
which could be levied in the year in which maximum annual debt service on the Other
District Bonds occurs), based upon information from the most recent Fiscal Year for
which information is available.
(E) Coverage. For each Fiscal Year after issuance of the Parity Bonds, the
maximum amount of the Special Taxes that may be levied for such Fiscal Year under
the Ordinance, the Agreement and any Supplemental Agreement less the Priority
Administrative Expense Amount for each respective Fiscal Year, shall be at least 110%
of the total Annual Debt Service of the then Outstanding Bonds and the proposed Parity
Bonds for each Bond Year that commences in each such Fiscal Year, and the aggregate
Special Tax Prepayments that could occur after the issuance of the Parity Bonds shall
be not less than the principal amount of the Outstanding Bonds and the proposed Parity
Bonds.
(F) Certificates. The City shall deliver to the Fiscal Agent an Officer's
Certificate certifying that the conditions precedent to the issuance of such Parity Bonds
set forth in subsections (A), (B), (C), (D), and (E) of this Section 3.06 have been
satisfied.
Notwithstanding the foregoing, the City may issue Refunding Bonds as Parity Bonds
without the need to satisfy the requirements of clauses (D) or (E) above, and, in connection
therewith, the Officer’s Certificate in clause (F) above need not make reference to said clauses
(D) and (E).
Nothing in this Section 3.06 shall prohibit the City from issuing any other bonds or
otherwise incurring debt secured by a pledge of the Special Tax Revenues (other than the
Special Tax Revenues to be deposited into the Administrative Expense Fund pursuant to clause
(i) of the second paragraph of Section 4.05(A)) subordinate to the pledge thereof under Section
3.02 of this Agreement.
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ARTICLE IV
PROCEEDS, FUNDS AND ACCOUNTS
Section 4.01. Application of 2017 Bond Proceeds. The Proceeds of the 2017 Bonds
received from the Original Purchaser in the amount of $___________ (which is equal to the
initial principal amount of the 2017 Bonds, [plus a net original issue premium of $__________ or
less a net original issue discount of $__________] and less an underwriter’s discount of
$__________) shall be paid to the Fiscal Agent, which shall deposit the Proceeds on the
Closing Date as follows:
(i) $_________ into the Costs of Issuance Fund;
(ii) $_________ into the Reserve Fund equaling the initial Reserve
Requirement;
(iii) $_________ into the Bond Fund (which shall represent capitalized
interest and shall be deposited into the Capitalized Interest Account); and
(iv) $_________ into the Improvement Fund.
The Fiscal Agent may, in its discretion, establish a temporary fund or account to facilitate
the foregoing deposits.
Section 4.02. Costs of Issuance Fund.
(A) Establishment of Costs of Issuance Fund. The Costs of
Issuance Fund is hereby established as a separate fund to be held by the Fiscal
Agent, to the credit of which a deposit shall be made as required by Section 4.01.
Moneys in the Costs of Issuance Fund shall be held by the Fiscal Agent for the
benefit of the City and shall be disbursed as provided in subsection (B) of this
Section for the payment or reimbursement of Costs of Issuance.
(B) Disbursement. Amounts in the Costs of Issuance Fund shall be
disbursed from time to time to pay Costs of Issuance, as set forth in a requisition
substantially in the form of Exhibit C hereto, executed by an Authorized Officer,
specifying the respective amounts to be paid to the respective designated
payees and delivered to the Fiscal Agent. Each such requisition shall be
sufficient evidence to the Fiscal Agent of the facts stated therein, and the Fiscal
Agent shall have no duty to confirm the accuracy of such facts and may
conclusively rely thereon.
(C) Investment. Moneys in the Costs of Issuance Fund shall be
invested and deposited by the Fiscal Agent under Section 6.01. Interest earnings
and profits resulting from such investment shall be retained by the Fiscal Agent in
the Costs of Issuance Fund to be used for the purposes of such fund.
(D) Closing of Fund. The Fiscal Agent shall maintain the Costs of
Issuance Fund for a period of 90 days from the Closing Date, and then the Fiscal
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Agent shall deposit any moneys remaining therein, including any investment
earnings thereon, into the Improvement Fund and close the Costs of Issuance
Fund.
Section 4.03. Reserve Fund.
(A) Establishment of Fund. The Reserve Fund is hereby
established as a separate fund to be held by the Fiscal Agent to the credit of
which a deposit shall be made as required by Section 4.01, which deposit, as of
the Closing Date, is equal to the initial Reserve Requirement with respect to the
2017 Bonds, and deposits shall be made as provided in Sections 3.06(C) and
4.05(A) and (B). Moneys in the Reserve Fund shall be held by the Fiscal Agent
for the benefit of the Owners of the Bonds as a reserve for the payment of the
principal of, and interest and any premium on, the Bonds and shall be subject to
a lien in favor of the Owners of the Bonds.
(B) Use of Reserve Fund. Except as otherwise provided in this
Section, all amounts deposited in the Reserve Fund shall be used and withdrawn
by the Fiscal Agent solely for the purpose of making transfers to the Bond Fund
in the event of the insufficiency at any time of the balance in the Bond Fund to
pay the amount then required for payment of the principal of, and interest and
any premium on, the Bonds or, in accordance with the provisions of this Section,
for the purpose of redeeming Bonds from the Bond Fund. Whenever a transfer is
made from the Reserve Fund to the Bond Fund due to a deficiency in the Bond
Fund, the Fiscal Agent shall provide written notice thereof to the Director of
Administrative Services, specifying the amount withdrawn.
(C) Transfer of Excess of Reserve Requirement. Whenever, on or
before any Interest Payment Date, or on any other date at the request of the
Director of Administrative Services, the amount in the Reserve Fund exceeds the
Reserve Requirement, the Fiscal Agent shall transfer an amount equal to the
excess from the Reserve Fund (i) to the Improvement Fund until the
Improvement Fund is closed pursuant to Section 4.07 and (ii) thereafter to the
Bond Fund, to be used to pay interest on the Bonds on the next Interest Payment
Date.
Notwithstanding the provisions of the first paragraph of this Section
4.03(C), no amounts shall be transferred from the Reserve Fund under this
Section 4.03(C) until after: (i) the calculation of any amounts due to the federal
government under Section 5.11 and withdrawal of any such amount under
Section 4.03(D) for purposes of making such payment to the federal government;
and (ii) payment of any fees and expenses due to the Fiscal Agent.
(D) Transfer for Rebate Purposes. Amounts in the Reserve Fund
shall be withdrawn for purposes of making payment to the federal government to
comply with Section 5.11, upon receipt by the Fiscal Agent of an Officer's
Certificate specifying the amount to be withdrawn and to the effect that such
amount is needed for rebate purposes; provided, however, that no amounts in
the Reserve Fund shall be used for rebate unless the amount in the Reserve
Fund following such withdrawal equals the Reserve Requirement.
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(E) Transfer When Balance Exceeds Outstanding Bonds.
Whenever the balance in the Reserve Fund, together with the balance in the
Bond Fund, exceeds the amount required to redeem or pay the Outstanding
Bonds, including interest accrued to the date of payment or redemption and
premium, if any, due upon redemption, the Fiscal Agent shall, upon the written
request of the Director of Administrative Services, transfer any cash or Permitted
Investments in the Reserve Fund to the Bond Fund to be applied, on the
redemption date to the payment and redemption, in accordance with Section
4.04 or 2.03, as applicable, of all of the Outstanding Bonds. In the event that the
amount so transferred from the Reserve Fund to the Bond Fund exceeds the
amount required to pay and redeem the Outstanding Bonds, the balance in the
Reserve Fund shall be transferred to the Director of Administrative Services to be
used by the City for any lawful purpose.
Notwithstanding the provisions of the first paragraph of this Section
4.03(E), no amounts shall be transferred from the Reserve Fund under this
Section 4.03(E) until after: (i) the calculation of any amounts due to the federal
government under Section 5.11 and withdrawal of any such amount under
Section 4.03(D) for purposes of making such payment to the federal government;
and (ii) payment of any fees and expenses due to the Fiscal Agent.
(F) Transfer Upon Special Tax Prepayment. Whenever Special
Taxes are prepaid and Bonds are to be redeemed with the proceeds of such
prepayment pursuant to Section 2.03(A)(iii), a proportionate amount in the
Reserve Fund (determined on the basis of the principal of Bonds to be redeemed
and the then-Outstanding principal of the Bonds, but in any event not in excess
of the amount that will leave the balance in the Reserve Fund following the
proposed redemption equal to the Reserve Requirement) shall be transferred on
the Business Day prior to the redemption date by the Fiscal Agent to the Bond
Fund to be applied to the redemption of the Bonds pursuant to Section
2.03(A)(iii). The Director of Administrative Services shall deliver to the Fiscal
Agent an Officer’s Certificate specifying any amount to be so transferred, and the
Fiscal Agent may rely on any such Officer’s Certificate.
(G) Investment. Moneys in the Reserve Fund shall be invested by
the Fiscal Agent under Section 6.01.
Section 4.04. Bond Fund.
(A) Establishment of Bond Fund. The Bond Fund is hereby
established as a separate fund to be held by the Fiscal Agent to the credit of
which deposits shall be made as required by Section 4.03, Section 4.05 and 4.07
(D) as otherwise set forth in this Agreement. Moneys in the Bond Fund shall be
held by the Fiscal Agent for the benefit of the Owners of the Bonds, and shall be
disbursed for the payment of the principal of, and interest and any premium on,
the Bonds as provided below.
Within the Bond Fund there is hereby established a separate account
designated as the “Capitalized Interest Account” to be held by the Fiscal Agent
for the benefit of the City and the Owners of the 2017 Bonds into which shall be
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deposited the amount specified in Section 4.01(iii). Amounts on deposit in the
Capitalized Interest Account shall be used and withdrawn by the Fiscal Agent
solely for the payment of interest on the 2017 Bonds as follows: $_________
shall be used on _________ 1, 20__, and the remainder shall be used on
___________ 1, 20__. When the amount in the Capitalized Interest Account is
fully expended for the payment of interest, the account shall be closed.
There is also hereby created in the Bond Fund a separate account to be
held by the Fiscal Agent, designated as the “Special Tax Prepayments Account,”
to the credit of which deposits shall be made as provided in clause (iii) of the
second paragraph of Section 4.05(A).
(B) Disbursements. At least ten (10) Business Days before each
Interest Payment Date, the Fiscal Agent shall notify the Director of Administrative
Services in writing as to the principal and premium, if any, and interest due on
the 2017 Bonds on the next Interest Payment Date (including principal and
premium, if any, due as a result of (i) scheduled maturity of 2017 Bonds as
provided in Section 2.02(D), (ii) optional redemption of 2017 Bonds as provided
in Section 2.03(A)(i), (iii) scheduled mandatory partial redemption of 2017 Bonds
as provided in Section 2.03(A)(ii) or (iv) redemption of 2017 Bonds from
proceeds of Special Tax Prepayments as provided in Section 2.03(A)(iii)). On
each Interest Payment Date, the Fiscal Agent shall withdraw from the Bond Fund
and pay to the Owners of the 2017 Bonds the principal of, and interest and any
premium, due and payable on such Interest Payment Date on the Bonds.
Notwithstanding the foregoing, amounts in the Bond Fund as a result of a
transfer pursuant to clause (ii) of the second paragraph of Section 4.05(A) shall
be immediately disbursed by the Fiscal Agent to pay past due amounts owing on
the 2017 Bonds.
At least three (3) Business Days prior to each Interest Payment Date, the
Fiscal Agent shall determine if the balance then on deposit in the Bond Fund are
sufficient to pay the debt service due on the 2017 Bonds on the next Interest
Payment Date. In the event that the balance in the Bond Fund is insufficient for
such purpose, the Fiscal Agent promptly shall notify the Director of Administrative
Services by telephone (and confirm in writing) of the amount of the insufficiency.
In the event that the balance in the Bond Fund is insufficient for the
purpose set forth in the preceding paragraph with respect to any Interest
Payment Date, the Fiscal Agent shall withdraw from the Reserve Fund, in
accordance with the provisions of Section 4.03, to the extent of any funds or
Permitted Investments therein, amounts to cover the amount of such Bond Fund
insufficiency. Amounts so withdrawn from the Reserve Fund shall be deposited
in the Bond Fund.
If, after the foregoing transfers, there are insufficient funds in the Bond
Fund to make the payments provided for in the second sentence of the first
paragraph of this Section 4.04(B), the Fiscal Agent shall apply the available
funds first to the payment of interest on the 2017 Bonds, then to the payment of
principal due on the 2017 Bonds other than by reason of mandatory partial
redemptions, if any, and then to payment of principal due on the 2017 Bonds by
reason of mandatory partial redemptions. Each such payment shall be made
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ratably to the Owners of the 2017 Bonds based on the then Outstanding principal
amount of the 2017 Bonds, if there are insufficient funds to make the
corresponding payment for all of the then Outstanding 2017 Bonds. Any
mandatory partial redemption payment not made as scheduled shall be added to
the mandatory partial redemption amount to be made on the next mandatory
partial redemption date.
Any failure by the Fiscal Agent to provide the notices required by this
Section 4.04(B) shall not alter the obligation of the City to make the scheduled
payments from amounts in the Bond Fund.
(C) Disbursements from the Special Tax Prepayments Account.
Moneys in the Special Tax Prepayments Account shall be transferred by the
Fiscal Agent to the Bond Fund on the next date for which notice of redemption of
2017 Bonds can timely be given under Section 2.03(A)(iii) and shall be used
(together with any amounts transferred pursuant to Section 4.03(F)) to redeem
2017 Bonds on the redemption date selected in accordance with Section 2.03.
(D) Investment. Moneys in the Bond Fund, the Capitalized Interest
Account and the Special Tax Prepayments Account shall be invested under
Section 6.01. Interest earnings and profits resulting from such investment shall
be retained in the Bond Fund.
(E) Deficiency. If at any time it appears to the Fiscal Agent that there
is a danger of deficiency in the Bond Fund and that the Fiscal Agent may be
unable to pay Debt Service on the 2017 Bonds in a timely manner, the Fiscal
Agent shall report to the Director of Administrative Services such fact. The City
covenants to increase the levy of the Special Taxes in the next Fiscal Year
(subject to the maximum amount authorized by the Rate and Method) in
accordance with the procedures set forth in the Act for the purpose of curing
Bond Fund deficiencies.
(F) Excess. Any excess moneys remaining in the Bond Fund (not
including moneys in the Capitalized Interest Account) following the payment of
Debt Service on the 2017 Bonds on any September 1, shall be transferred to the
Special Tax Fund.
Section 4.05. Special Tax Fund.
(A) Establishment of Special Tax Fund. The Special Tax Fund is
hereby established as a separate fund to be held by the Fiscal Agent, to the
credit of which the Fiscal Agent shall deposit amounts received from or on behalf
of the City consisting of Special Tax Revenues and amounts transferred from the
Administrative Expense Fund and the Bond Fund. The City shall promptly remit
any Special Tax Revenues received by it to the Fiscal Agent for deposit by the
Fiscal Agent to the Special Tax Fund.
Notwithstanding the foregoing,
(i) Special Tax Revenues in an amount not to exceed the lesser of
(a) the amount included in the Special Tax levy for such Fiscal Year for
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Administrative Expenses and (b) the Priority Administrative Expenses Amount for
such Fiscal Year shall be separately identified by the Director of Administrative
Services and shall be deposited by the Director of Administrative Services in the
Administrative Expense Fund;
(ii) any Special Tax Revenues constituting the collection of
delinquencies in payment of Special Taxes shall be separately identified by the
Director of Administrative Services and shall be disposed of by the Fiscal Agent
first, for transfer to the Bond Fund to pay any past due debt service on the 2017
Bonds; second, for transfer to the Reserve Fund to the extent needed to increase
the amount then on deposit in the Reserve Fund up to the then Reserve
Requirement; and third, to be held in the Special Tax Fund for use as described
in Section 4.05(B) below; and
(iii) any proceeds of Special Tax Prepayments shall be separately
identified by the Director of Administrative Services and shall be deposited by the
Fiscal Agent as follows (as directed in writing by the Director of Administrative
Services): (a) that portion of any Special Tax Prepayment constituting a
prepayment of costs of the Project shall be deposited by the Fiscal Agent to the
Improvement Fund, and (b) the remaining Special Tax Prepayment shall be
deposited by the Fiscal Agent in the Special Tax Prepayments Account
established pursuant to Section 4.04(A).
Moneys in the Special Tax Fund shall be held by the Fiscal Agent for the
benefit of the City and Owners of the 2017 Bonds, shall be disbursed as provided
below and, pending disbursement, shall be subject to a lien in favor of the
Owners of the 2017 Bonds.
(B) Disbursements. On the third Business Day prior to each Interest
Payment Date, the Fiscal Agent shall withdraw from the Special Tax Fund and
transfer the following amounts in the following order of priority (i) to the Bond
Fund an amount, taking into account any amounts then on deposit in the Bond
Fund and any expected transfers from the Improvement Fund, the Reserve
Fund, the Capitalized Interest Account and the Special Tax Prepayments
Account to the Bond Fund, such that the amount in the Bond Fund equals the
principal (including any mandatory partial redemption payment), premium, if any,
and interest due on the 2017 Bonds on such Interest Payment Date and any past
due principal or interest on the 2017 Bonds not theretofore paid from a transfer
described in clause second of subparagraph (ii) of the second paragraph of
Section 4.05(A), and (ii) to 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.
Each calendar year, following the transfers pursuant to the preceding
paragraph for the March 1 Interest Payment Date occurring in such calendar
year, when amounts (including investment earnings) have been accumulated in
the Special Tax Fund sufficient to make the transfers pursuant to the preceding
paragraph for the September 1 Interest Payment Date occurring in such calendar
year, the Director of Administrative Services, during the period up to but not
including December 10 of such calendar year, may in his or her sole discretion
direct the disposition of moneys in the Special Tax Fund in excess of the
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amounts needed for such September 1 Interest Payment Date as follows: (i)
direct the Fiscal Agent to transfer money to the Improvement Fund f or payment
or reimbursement of the costs of the Project and (ii) direct the Fiscal Agent to
transfer money to the City for deposit by the City in the Administrative Expense
Fund, in an amount not to exceed the amount included in the Special Tax levy for
such Fiscal Year, after deducting the amount deposited in the Administrative
Expense Fund pursuant to clause (i) of the second paragraph of Section 4.05(A).
(C) Investment. Moneys in the Special Tax Fund shall be invested
and deposited by the Fiscal Agent under Section 6.01. Interest earnings and
profits resulting from such investment and deposit shall be retained in the Special
Tax Fund to be used for the purposes thereof.
Section 4.06. Administrative Expense Fund.
(A) Establishment of Administrative Expense Fund. The
Administrative Expense Fund is hereby established as a separate fund to be held
by the Director of Administrative Services for the benefit of the City, to the credit
of which deposits shall be made as required by Sections 4.01 (if applicable),
4.05(A) and 4.05(B). Moneys in the Administrative Expense Fund shall be held
by the Director of Administrative Services for the benefit of the City, and shall be
disbursed as provided below.
(B) Disbursement. Amounts in the Administrative Expense Fund
shall be withdrawn by the Director of Administrative Services and either (i) paid to
an entity upon the receipt by the Director of Administrative Services of an invoice
in respect of an Administrative Expense or a Cost of Issuance or (ii) paid to the
City or its order upon receipt by the Director of Administrative Services of an
Officer’s Certificate, in substantially the form of Exhibit D hereto, stating the
amount to be withdrawn, that such amount is to be used to pay an Administrative
Expense or a Cost of Issuance and the nature of such Administrative Expense or
such Cost of Issuance. Amounts deposited to the Administrative Expense Fund
pursuant to Section 4.01 (if applicable) shall be separately identified at all times,
and shall be expended for purposes of the Administrative Expense Fund prior to
the use of amounts transferred to the Administrative Expense Fund from the
Special Tax Fund pursuant to Section 4.05(A).
Annually, on the last day of each Fiscal Year, the Director of
Administrative Services shall withdraw from the Administrative Expense Fund
and transfer to the Fiscal Agent for deposit into the Special Tax Fund any amount
in excess of that which is needed to pay any Administrative Expenses incurred
but not yet paid, and which is not otherwise encumbered.
(C) Investment. Moneys in the Administrative Expense Fund shall be
invested by the Director of Administrative Services under Section 6.01. Interest
earnings and profits resulting from such investment shall be retained by the
Director of Administrative Services in the Administrative Expense Fund to be
used for the purposes of such fund.
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Section 4.07. Improvement Fund.
(A) Establishment of Improvement Fund. The Improvement Fund
is hereby established as a separate fund to be held by the Fiscal Agent, and two
separate subaccounts shall be established within the Improvement Fund, namely
the Bond Proceeds Subaccount and the Special Tax Proceeds Subaccount.
Deposits made to the Improvement Fund pursuant to Sections 4.01 and 4.02(D)
shall be credited to the Bond Proceeds Subaccount, and deposits made pursuant
to Section 4.05(B) shall be credited to the Special Tax Proceeds Subaccount.
Moneys in the Improvement Fund shall be disbursed, except as otherwise
provided in subsection (D) of this Section, for the payment or reimbursement of
the costs of the Project, and all such disbursements shall be made first from the
Bond Proceeds Subaccount and secondly, as to any remaining portion of such
disbursements following depletion of the Bond Proceeds Subaccount, from the
Special Tax Proceeds Subaccount.
(B) Procedure for Disbursement. Disbursements from the
Improvement Fund shall be made by the Fiscal Agent upon receipt of an Officer's
Certificate substantially in the form of Exhibit B attached hereto which shall:
(i) set forth the amount required to be disbursed, the purpose
for which the disbursement is to be made (which shall be for payment of a
Project cost or to reimburse expenditures of the City or any other party for
Project costs previously paid), and the person to which the disbursement
is to be paid; and
(ii) certify that no portion of the amount then being requested
to be disbursed was set forth in any Officers Certificate previously filed
requesting disbursement.
Each such requisition shall be sufficient evidence to the Fiscal Agent of
the facts stated therein, and the Fiscal Agent shall have no duty to confirm the
accuracy of such facts.
(C) Investment. Moneys in the Improvement Fund shall be invested
in accordance with Section 6.01. Interest earnings and profits from such
investment shall be retained in the Improvement Fund to be used for the purpose
of such fund.
(D) Closing of Fund. The Director of Public Works or his or her
authorized representative shall monitor progress on the Project, in consultation
with the Developer. Upon determining in his or her sole discretion that the Project
has been completed, the Director of Public Works shall file an Officer’s Certificate
with the Fiscal Agent, stating that the Project has been completed and that all
costs of the Project have been paid or are not required to be paid from the
Improvement Fund. Upon receipt of such Officer’s Certificate, the Fiscal Agent
shall transfer the amount, if any, remaining in the Improvement Fund to the Bond
Fund for application to Debt Service payments due on the next succeeding
Interest Payment Date, and the Improvement Fund shall be closed.
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Section 4.08. Remainder Taxes Fund.
(A) Establishment of Remainder Taxes Fund. The Remainder
Taxes Fund is hereby established as a separate fund to be held by the Director
of Administrative Services for the benefit of the City, to the credit of which
deposits shall be made and from which disbursements shall be made as
provided below.
(B) Deposits. Annually, not later than October 10, the Director of
Administrative Services shall determine or shall cause the Administrator to
determine the amount of Special Tax Revenues which, as of the preceding
September 2, constitute Remainder Taxes. Not later than five business days
following such determination, the Director of Administrative Services shall
provide the Fiscal Agent with written instructions to transfer to the City from the
Special Tax Fund an amount equal to the Remainder Taxes, and said amount
shall be deposited in the Remainder Taxes Fund.
Following the closure of the Remainder Taxes Fund in accordance with
subsection (D) of this Section, the procedures prescribed in said foregoing
paragraph shall terminate.
(C) Disbursements. Amounts on deposit in the Remainder Taxes
Fund shall be disbursed, except as otherwise provided in subsection (D) of this
Section, for the payment or reimbursement of costs of the Project in accordance
with the requisition and disbursement procedure set forth in subsection (B) of
Section 4.07, except that all references therein to the Fiscal Agent to be deemed
references to the Director of Administrative Services; provided, however, that any
disbursements for such payment or reimbursement of costs of the Project shall
be made first from the Improvement Fund pursuant to subsection (B) of Section
4.07 so long as there are moneys available therein, and only when the
Improvement Fund has been depleted shall disbursements be made from the
Remainder Taxes Fund as to any remaining portion of such payment or
reimbursement then due and payable.
(D) Closing of Fund. The Director of Public Works or his or her
authorized representative shall monitor progress on the Project, in consultation
with the Developer. Upon determining in his or her sole discretion that the Project
has been completed, the Director of Public Works shall file an Officer’s Certificate
with the Director of Administrative Services, stating that the Project has been
completed and that all costs of the Project have been paid or are not required to
be paid from the Improvement Fund. Upon receipt of such Officer’s Certificate,
the Director of Administrative Services shall transfer the amount, if any,
remaining in the Remainder Taxes Fund to the Fiscal Agent for deposit into the
Bond Fund for application to Debt Service payments due on the next succeeding
Interest Payment Date, and the Remainder Taxes Fund shall be closed.
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ARTICLE V
COVENANTS
Section 5.01. Collection of Special Tax Revenues. The City shall comply with all
requirements of the Rate and Method and the Act so as to assure the timely collection of
Special Tax Revenues, including without limitation, the enforcement of delinquent Special
Taxes.
(A) Processing. On or within five (5) Business Days of each May 1,
the Fiscal Agent shall provide the Administrator with a notice stating the amount
then on deposit in the Bond Fund and the Reserve Fund, and, if the amount in
the Reserve Fund is less than the Reserve Requirement, informing the
Administrator that replenishment of the Reserve Fund is necessary. The receipt
of or failure to receive such notice by the Administrator shall in no way affect the
obligations of the Administrator under the following two paragraphs and the
Fiscal Agent shall not be liable for failure to provide such notices to the
Administrator.
(B) Levy. The Administrator shall effect the levy of the Special Taxes
in accordance with the Rate and Method each Fiscal Year that the 2017 Bonds
are outstanding, or otherwise such that the computation of the levy is complete
and transmitted to the Auditor before the final date on which the Auditor will
accept the transmission of the Special Tax amounts for the parcels within
Improvement Area No. 1 for inclusion on the next real property ta x roll. Upon the
completion of the computation of the amounts of the levy, the Administrator shall
prepare or cause to be prepared, and shall transmit to the Auditor, such data as
the Auditor requires to include the levy of the Special Taxes on the next real
property tax roll.
(C) Computation. The Director of Administrative Services shall fix
and levy the Special Taxes within Improvement Area No. 1 in accordance with
the Rate and Method so as to assure the timely payment of principal of and
interest on any outstanding 2017 Bonds becoming due and payable during the
ensuing calendar year, including any necessary replenishment or expenditure of
the Reserve Fund for the 2017 Bonds and an amount estimated to be sufficient
to pay the Administrative Expenses, including amounts necessary to discharge
any rebate obligation, during such year, taking into account the balances in the
applicable funds established under this Agreement and in the Special Tax Fund;
provided that the Special Taxes so levied shall not exceed the authorized
amounts as provided by the Rate and Method.
(D) Collection. Except as set forth in the Ordinance, Special Taxes
shall be payable and be collected in the same manner and at the same time and
in the same installment as the general taxes on real property are payable, and
have the same priority, become delinquent at the same time and in the same
proportionate amounts and bear the same proportionate penalties and interest
after delinquency as do the ad valorem taxes on real property. The fees and
expenses of the Administrator and the costs and expenses of the Director of
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Administrative Services (including a charge for City staff time) in conducting its
duties hereunder shall be an Administrative Expense hereunder.
Section 5.02. Covenant to Foreclose. Under the Act, the City hereby covenants with
and for the benefit of the Owners of the 2017 Bonds that it will order, and cause to be
commenced as hereinafter provided, and thereafter diligently prosecute to judgment (unless
such delinquency is theretofore brought current), an action in the Alameda County Superior
Court to foreclose the lien of any Special Tax or installment thereof not paid when due as
provided in the following two paragraphs. The Director of Administrative Services shall notify
the City Attorney of any such delinquency of which the Director of Administrative Services is
aware, and the City Attorney shall commence, or cause to be commenced, such proceedings.
On or about June 1 of each Fiscal Year, the Director of Administrative Services shall
compare the amount of Special Taxes theretofore levied in Improvement Area No. 1 to the
amount of Special Tax Revenues theretofore received by the City, and:
(A) Individual Delinquencies. If the Director of Administrative
Services determines that any single parcel subject to the Special Tax in
Improvement Area No. 1 is delinquent in the payment of Special Taxes for two
years or in the aggregate amount of $10,000 or more, then the Director of
Administrative Services shall send or cause to be sent a notice of delinquency
(and a demand for immediate payment thereof) to the property owner within 45
days of such determination, and, if the delinquency remains uncured, foreclosure
proceedings shall be commenced by the City within 90 days of such
determination.
(B) Aggregate Delinquencies. If the Director of Administrative
Services determines that the total amount of delinquent Special Taxes for the
entire Improvement Area No. 1, (including the total of delinquencies under
subsection (A) above), exceeds five percent (5%) of the total Special Taxes
levied on all parcels in Improvement Area No. 1 for the Fiscal Year ending on
such June 1, the Director of Administrative Services shall notify or cause to be
notified property owners who are then delinquent in the payment of Special
Taxes (and a demand immediate payment of the delinquency) within 45 days of
such determination, and shall commence foreclosure proceedings within 90 days
of such determination against each parcel of land in Improvement Area No. 1 for
which a Special Tax delinquency remains uncured.
Notwithstanding the foregoing, the Director of Administrative Services need not take any
such actions with respect to a delinquent parcel if (1) Improvement Area No. 1 is then
participating in the Alternative Method of Distribution of Tax Levies and Collections described in
Revenue & Taxation Code Section 4701 et seq., or an equivalent procedure, and (2) the
amount in the Reserve Fund is at least equal to the Reserve Requirement.
The Director of Administrative Services may employ the person or firm designated as the
Administrator, if other than the Director of Administrative Services, to perf orm the duties
delegated to the Director of Administrative Services under this Section 5.02, and the City
Attorney may employ counsel to conduct any such foreclosure proceedings. The fees and
expenses of the Director of Administrative Services or the Administrator in performing such
duties and the fees and expenses of the City Attorney or such counsel in conducting foreclosure
proceedings shall be an Administrative Expense hereunder.
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Section 5.03. Punctual Payment. The City will punctually pay or cause to be paid the
principal of, and interest and any premium on, the 2017 Bonds when and as due in strict
conformity with the terms of this Agreement and any Supplemental Agreement, and it will
faithfully observe and perform all of the conditions covenants and requirements of this
Agreement and all Supplemental Agreements and of the 2017 Bonds.
Section 5.04. Extension of Time for Payment. In order to prevent any accumulation
of claims for interest after maturity, the City shall not, directly or indirectly, extend or consent to
the extension of the time for the payment of any claim for interest on any of the 2017 Bonds and
shall not, directly or indirectly, be a party to the approval of any such arrangement by
purchasing or funding said claims for interest or in any other manner. In case any such claim
for interest shall be extended or funded, whether or not with the consent of the City, such claim
for interest so extended or funded shall not be entitled, in case of default hereunder, to the
benefits of this Agreement, except subject to the prior payment in full of the principal of all of the
2017 Bonds then Outstanding and of all claims for interest which shall not have been so
extended or funded.
Section 5.05. Against Encumbrances. The City will not encumber, pledge or place
any charge or lien upon any of the Special Tax Revenues or other amounts pledged to the 2017
Bonds superior to or on a parity with the pledge and lien herein created for the benefit of the
2017 Bonds, or their Owners, except as permitted by this Agreement.
Section 5.06. Books and Records. The City will keep, or cause to be kept, proper
books of record and accounts, separate from all other records and accounts of the City, in which
complete and correct entries shall be made of all transactions relating to the Special Tax
Revenues. Such books of record and accounts shall at all times during business hours be
subject to the inspection of the Fiscal Agent and the Owners of not less than ten percent (10%)
of the principal amount of the 2017 Bonds then Outstanding, or their representatives duly
authorized in writing.
Section 5.07. Protection of Security and Rights of Owners. The City will preserve
and protect the security of the 2017 Bonds and the rights of the Owners, and will warrant and
defend their rights against all claims and demands of all persons. From and after the delivery of
any of the 2017 Bonds by the City, the 2017 Bonds shall be incontestable by the City.
Section 5.08. Further Assurances. The City will adopt, make, execute and deliver any
and all such further resolutions, instruments and assurances as may be reasonably necessary
or proper to carry out the intention or to facilitate the performance of this Agreement, and for the
better assuring and confirming unto the Owners of the rights and benefits provided in this
Agreement.
Section 5.09. Private Activity Bond Limitations. The City shall assure that the
proceeds of the 2017 Bonds are not so used as to cause the 2017 Bonds to satisfy the private
business tests of section 141(b) of the Tax Code or the private loan financing test of section
141(c) of the Tax Code.
Section 5.10. Federal Guarantee Prohibition. The City shall not take any action or
permit or suffer any action to be taken if the result of the same would be to cause the 2017
Bonds to be “federally guaranteed” within the meaning of Section 149(b) of the Tax Code.
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Section 5.11. Rebate Requirement. The City shall take any and all actions necessary
to assure compliance with section 148(f) of the Tax Code, relating to the rebat e of excess
investment earnings, if any, to the federal government, to the extent that such section is
applicable to the 2017 Bonds. The Director of Administrative Services shall take note of any
investment of monies hereunder in excess of the yield on the 2017 Bonds, and shall take such
actions as are necessary to ensure compliance with this Section 5.11, such as increasing the
portion of the Special Tax levy for Administration Expenses as appropriate to have funds
available in the Administrative Expense Fund to satisfy any rebate liability under this Section. If
necessary to satisfy its obligations under this Section 5.11, the City may use:
(A) Amounts in the Reserve Fund if the amount on deposit in the Reserve
Fund, following the proposed transfer, is at least equal to the Reserve
Requirement;
(B) Amounts on deposit in the Administrative Expense Fund; and
(C) Any other funds available to the City, in its sole discretion, to be repaid to
the City as soon as practicable from amounts described in the preceding
clauses (A) and (B).
Section 5.12. No Arbitrage. The City shall not take, or permit or suffer to be taken by
the Fiscal Agent or otherwise, any action with respect to the proceeds of the 2017 Bonds which,
if such action had been reasonably expected to have been taken, or had been deliberately and
intentionally taken, on the date of issuance of the 2017 Bonds would have caused the 2017
Bonds to be “arbitrage bonds” within the meaning of section 148 of the Tax Code.
Section 5.13. Yield of the 2017 Bonds. In determining the yield of the 2017 Bonds to
comply with Sections 5.11 and 5.12, the City will take into account redemption (including
premium, if any) in advance of maturity based on the reasonable expectations of the City, as of
the Closing Date, regarding prepayments of Special Taxes and use of prepayments for
redemption of the 2017 Bonds, without regard to whether or not prepayments are received or
2017 Bonds redeemed.
Section 5.14. Maintenance of Tax-Exemption. The City shall take all actions
necessary to assure the exclusion of interest on the 2017 Bonds from the gross income of the
Owners of the 2017 Bonds to the same extent as such interest is permitted to be excluded from
gross income under the Tax Code as in effect on the date of issuance of the 2017 Bonds.
Section 5.15. Continuing Disclosure. The City hereby covenants and agrees that it
will comply with and carry out all of the provisions of the Continuing Disclosure Agreement.
Notwithstanding any other provision of this Agreement, failure of the City to comply with the
Continuing Disclosure Agreement shall not be considered an event of default for the purposes
of this Agreement. However, any Owner or Beneficial Owner of the 2017 Bonds may take such
actions as may be necessary and appropriate to compel performance, including seeking
mandate or specific performance by court order.
One or more owners of the real property in Improvement Area No. 1 as of the Closing
Date may also have executed a continuing disclosure agreement for the benefit of the holders
and Beneficial Owners of the 2017 Bonds. Any Participating Underwriter or Holder or Beneficial
Owner may take such actions as may be necessary and appropriate directly against any such
landowner to compel performance by it of its obligations thereunder, including seeking mandate
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or specific performance by court order; however the City shall have no obligation whatsoever to
enforce any obligations under any such property owner agreement.
Section 5.16. Limits on Special Tax Waivers and Bond Tenders. The City
covenants not to exercise its rights under the Act to waive delinquency and redemption
penalties related to the Special Taxes or to declare Special Tax penalties amnesty program if to
do so would materially and adversely affect the interests of the owners of the 2017 Bonds.
The City covenants not to permit the tender of 2017 Bonds in payment of any Special
Taxes except upon receipt of a certificate of an Independent Financial Consultant that to accept
such tender will not result in the City having insufficient Special Tax Revenues, assuming the
Special Taxes are levied and collected in the maximum amount permitted by the Rate and
Method, to pay the principal of and interest when due on the 2017 Bonds remaining Outstanding
following such tender. Subject to the foregoing, in the event 2017 Bonds are tendered to the
Fiscal Agent, such 2017 Bonds shall be cancelled by the Fiscal Agent and shall cease to accrue
interest from the date such 2017 Bonds are tendered. Upon surrender of a 2017 Bond to be
tendered in part only, the City shall execute and the Fiscal Agent shall authenticate and deliver
to the tendering party a new 2017 Bond or 2017 Bonds the principal amount of which is equal to
the untendered portion of the 2017 Bonds and the interest rate and maturity date of which shall
be the same as the interest rate and maturity date of the tendered bond. To the extent
applicable, the City shall deliver to the Fiscal Agent an Officer’s Certificate setting forth any
adjustments to the mandatory sinking fund schedule as a result of the tender, which Officer’s
Certificate must be accompanied by a certificate of an Independent Financial Consultant to the
effect that it has reviewed the proposed adjustments in the mandatory sinking fund schedule
and that the remaining Special Tax Revenues, if the Special Taxes are levied and collected in
the maximum amount permitted by the Rate and Method, will be sufficient to pay principal of
and interest on the 2017 Bonds when due following such adjustment.
Section 5.17. City Bid at Foreclosure Sale. The City will not bid at a foreclosure sale
of property in respect of delinquent Special Taxes, unless it expressly agrees to take the
property subject to the lien for Special Taxes and that the Special Taxes levied on the property
are payable while the City owns the property.
Section 5.18. Limitation on Principal Amount of Parity Bonds. Following issuance
of the 2017 Bonds, the City will not issue Parity Bonds (exclusive of any Refunding Bonds) in a
principal amount which, when added to the initial principal amount of the 2017 Bonds, exceeds
$46 million.
Section 5.19. Amendment of Rate and Method. The City shall not initiate
proceedings under the Act to modify the Rate and Method if such modification would adversely
affect the security for the 2017 Bonds. If an initiative is adopted that purports to modify the Rate
and Method in a manner that would adversely affect the security for the 2017 Bonds, the City
shall, to the extent permitted by law, commence and pursue reasonable legal actions to prevent
the modification of the Rate and Method in a manner that would adversely affect the security for
the 2017 Bonds.
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ARTICLE VI
INVESTMENTS; LIABILITY OF THE CITY
Section 6.01. Deposit and Investment of Moneys in Funds.
(A) General. Moneys in any fund or account created or established by this
Agreement and held by the Fiscal Agent shall be invested by the Fiscal Agent in Permitted
Investments, which in any event by their terms mature prior to the date on which such moneys
are required to be paid out hereunder, as directed pursuant to an Officer’s Certificate filed with
the Fiscal Agent at least two (2) Business Days in advance of the making of such investments.
In the absence of any such Officer’s Certificate, the Fiscal Agent hold such funds uninvested.
The Director of Administrative Services shall make note of any investment of funds hereunder in
excess of the yield on the 2017 Bonds so that appropriate actions can be taken to assure
compliance with Section 5.11.
(B) Moneys in Funds. Moneys in any fund or account created or established by this
Agreement and held by the Director of Administrative Services shall be invested by the Director
of Administrative Services in any Permitted Investment or in any other lawful investment for City
funds, which in any event by its terms matures prior to the date on which such moneys are
required to be paid out hereunder. Obligations purchased as an investment of moneys in any
fund shall be deemed to be part of such fund or account, subject, however, to the requirements
of this Agreement for transfer of interest earnings and profits resulting from investment of
amounts in funds and accounts. Whenever in this Agreement any moneys are required to be
transferred by the City to the Fiscal Agent, such transfer may be accomplished by transferring a
like amount of Permitted Investments.
(C) Actions of Officials. The Fiscal Agent and its affiliates or the Director of
Administrative Services may act as sponsor, advisor, depository, principal or agent in the
acquisition or disposition of any investment. Neither the Fiscal Agent nor the Director of
Administrative Services shall incur any liability for losses arising from any investments made
pursuant to this Section. The Fiscal Agent shall not be required to determine the legality of any
investments.
(D) Valuation of Investments. Except as otherwise provided in the next sentence,
all investments of amounts deposited in any fund or account created by or pursuant to this
Agreement, or otherwise containing gross proceeds of the 2017 Bonds (within the meaning of
section 148 of the Tax Code) shall be acquired, disposed of, and valued (as of the date that
valuation is required by this Agreement or the Tax Code) at Fair Market Value. Investments in
funds or accounts (or portions thereof) that are subject to a yield restriction under the applicable
provisions of the Tax Code and (unless valuation is undertaken at least annually) investments of
funds in the Reserve Fund shall be valued at their present value (within the meaning of section
148 of the Tax Code). The Fiscal Agent shall not be liable for verification of the application of
such sections of the Tax Code or for any determination of Fair Market Value or present value
and may conclusively rely upon an Officer’s Certificate as to such valuations.
(E) Commingled Money. Investments in any and all funds and accounts may be
commingled in a separate fund or funds for purposes of making, holding and disposing of
investments, notwithstanding provisions herein for transfer to or holding in or to the credit of
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particular funds or accounts of amounts received or held by the Fiscal Agent or the Director of
Administrative Services hereunder, provided that the Fiscal Agent or the Director of
Administrative Services, as applicable, shall at all times account for such investments strictly in
accordance with the funds and accounts to which they are credited and otherwise as provided in
this Agreement.
(F) Confirmations Waiver. The City acknowledges that to the extent regulations of
the Comptroller of the Currency or other applicable regulatory entity grant the City the right to
receive brokerage confirmations of security transactions as they occur, the City specifically
waives receipt of such confirmations to the extent permitted by law. The City understands that
trade confirmations for securities transactions effected by the Fiscal Agent will be available upon
request and at no additional cost and other trade confirmations may be obtained from the
applicable broker. The Fiscal Agent will furnish the City periodic cash transaction statements
which include will detail for all investment transactions made by the Fiscal Agent hereunder.
Upon the City’s election, such statements will be delivered via the Fiscal Agent’s online service
and upon electing such service, paper statements will be provided only upon request.
(G) Sale of Investments. The Fiscal Agent or the Director of Administrative
Services, as applicable, shall sell at Fair Market Value, or present for redemption, any
investment security whenever it shall be necessary to provide moneys to meet any required
payment, transfer, withdrawal or disbursement from the fund or account to which such
investment security is credited and neither the Fiscal Agent nor the Director of Administrative
Services shall be liable or responsible for any loss resulting from the acquisition or disposition of
such investment security in accordance herewith.
Section 6.02. Liability of City.
(A) General. The City shall not incur any responsibility in respect of the Bonds or this
Agreement other than in connection with the duties or obligations explicitly herein or in the
Bonds assigned to or imposed upon it. The City shall not be liable in connection with the
performance of its duties hereunder, except for its own negligence or willful default. The City
shall not be bound to ascertain or inquire as to the performance or observance of any of the
terms, conditions, covenants or agreements of the Fiscal Agent herein or of any of the
documents executed by the Fiscal Agent in connection with the 2017 Bonds, or as to the
existence of a default or event of default thereunder.
(B) Reliance. In the absence of bad faith, the City, including the Director of
Administrative Services, may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions furnished to the City
by the Fiscal Agent or an Independent Financial Consultant and conforming to the requirements
of this Agreement. The City, including the Director of Administrative Services, shall not be liable
for any error of judgment made in good faith unless it shall be proved that it was negligent in
ascertaining the pertinent facts. The City may rely and shall be protected in acting or refraining
from acting upon any notice, resolution, request, consent, order, certificate, report, warrant,
bond or other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or proper parties. The City may consult with counsel, who may be
the City Attorney, with regard to legal questions, and the opinion of such counsel shall be full
and complete authorization and protection in respect of any action taken or suffered by it
hereunder in good faith and in accordance therewith.
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(C) No General Liability. No provision of this Agreement shall require the City to
expend or risk its own general funds or otherwise incur any financial liability (other than with
respect to the Special Tax Revenues) in the performance of any of its obligations hereunder, or
in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(D) Owner of Bonds. The City shall not be bound to recognize any person as the
Owner of a 2017 Bond unless and until such 2017 Bond is submitted for inspection, if required,
and his title thereto satisfactorily established, if disputed.
Section 6.03. Employment of Agents by City. In order to perform its duties and
obligations hereunder, the City may employ such persons or entities as it deems necessary or
advisable. The City shall not be liable for any of the acts or omissions of such persons or
entities employed by it in good faith hereunder, and shall be entitled to rely, and shall be fully
protected in doing so, upon the opinions, calculations, determinations and directions of such
persons or entities.
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ARTICLE VII
THE FISCAL AGENT
Section 7.01. The Fiscal Agent.
(A) Appointment. The Fiscal Agent is hereby appointed as the fiscal, authentication,
paying and transfer agent hereunder for the 2017 Bonds. The Fiscal Agent undertakes to
perform such duties, and only such duties, as are specifically set forth in this Agreement, and no
implied duties, covenants or obligations shall be read into this Agreement against the Fiscal
Agent.
(B) Merger. Any company into which the Fiscal Agent may be merged or converted
or with which it may be consolidated or any company resulting from any merger, conversion or
consolidation to which it shall be a party or any company to which the Fiscal Agent may sell or
transfer all or substantially all of its corporate trust business, provided such company shall be
eligible under the following paragraph of this Section 7.01 shall be the successor to such Fiscal
Agent without the execution or filing of any paper or any further act, anything herein to the
contrary notwithstanding. The Fiscal Agent shall give the Director of Administrative Services
written notice of any such succession hereunder.
(C) Removal. Upon 30 days written notice, the City may remove the Fiscal Agent
initially appointed, and any successor thereto, and may appoint a successor or successors
thereto, but any such successor shall be a bank, national banking association or trust company
having a combined capital (exclusive of borrowed capital) and surplus of at least fifty million
dollars ($50,000,000), and subject to supervision or examination by federal or state authority. If
such bank, national banking association or trust company publishes a report of condition at least
annually, pursuant to law or to the requirements of any supervising or examining authority
above referred to, then for the purposes of this Section 7.01, combined capital and surplus of
such bank, national banking association or trust company shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so published.
(D) Resignation. The Fiscal Agent may at any time resign by giving written notice to
the City by certified mail return receipt requested, and by giving to the Owners notice by mail of
such resignation. Upon receiving notice of such resignation, the City shall promptly appoint a
successor Fiscal Agent by an instrument in writing. Any resignation or removal of the Fiscal
Agent shall become effective only upon acceptance of appointment by the successor Fiscal
Agent.
(E) No Successor. If no appointment of a successor Fiscal Agent shall be made
pursuant to the foregoing provisions of this Section 7.01 within forty-five (45) days after the
Fiscal Agent shall have given to the City written notice or after a vacancy in the office of the
Fiscal Agent shall have occurred by reason of its inability to act, the Fiscal Agent, or any Owner
may apply, at the expense of the City, to any court of competent jurisdiction to appoint a
successor Fiscal Agent. Said court may thereupon, after such notice, if any, as such court may
deem proper, appoint a successor Fiscal Agent.
(F) Court Order. If, by reason of the judgment of any court, the Fiscal Agent is
rendered unable to perform its duties hereunder, all such duties and all of the rights and powers
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of the Fiscal Agent hereunder shall be assumed by and vest in the Director of Administrative
Services in trust for the benefit of the Owners. The City covenants for the direct benefit of the
Owners that the Director of Administrative Services in such case shall be vested with all of the
rights and powers of the Fiscal Agent hereunder, and shall assume all of the responsibilities and
perform all of the duties of the Fiscal Agent hereunder, in trust for the benefit of the Owners of
the 2017 Bonds.
Section 7.02. Liability of Fiscal Agent.
(A) General. The recitals of facts, covenants and agreements herein and in the
Bonds contained shall be taken as statements, covenants and agreements of the City, and the
Fiscal Agent assumes no responsibility for the correctness of the same, nor makes any
representations as to the validity or sufficiency of this Agreement or of the 2017 Bonds, nor shall
the Fiscal Agent incur any responsibility in respect thereof, other than in connection with the
duties or obligations herein or in the 2017 Bonds assigned to or imposed upon it. The Fiscal
Agent shall not be liable in connection with the performance of its duties hereunder, except for
its own negligence or willful misconduct. The Fiscal Agent assumes no responsibility or liability
for any information, statement or recital in any offering memorandum or other disclosure
material prepared or distributed with respect to the issuance of the 2017 Bonds. All
indemnifications and releases from liability granted to the Fiscal Agent hereunder shall extend to
the directors, officers and employees of the Fiscal Agent.
The Fiscal Agent shall not be considered in breach of or in default in its obligations
hereunder in the event of delay in the performance of such obligations due to unforeseeable
causes beyond its control and without its fault or negligence, including, but not limited to, Acts of
God or of the public enemy or terrorists, acts of a government, acts of the other party, fires,
floods, epidemics, quarantine restrictions, strikes, freight embargoes, earthquakes, explosion,
mob violence, riot, inability to procure or general sabotage or rationing of labor, equipment,
facilities, sources of energy, material or supplies in the open market, litigation or arbitration
involving a party or others relating to zoning or other governmental action or inaction pertaining
to the project, malicious mischief, condemnation, and unusually severe weather or delays of
suppliers or subcontractors due to such causes or any similar event and/or occurrences beyond
the control of the Fiscal Agent.
(B) Reliance. The Fiscal Agent may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon certificates, documents,
written instructions or opinions furnished to the Fiscal Agent and conforming to the requirements
of this Agreement; but in the case of any such certificates, documents, written instructions or
opinions by which any provision hereof are specifically required to be furnished to the Fiscal
Agent, the Fiscal Agent shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Agreement. Except as provided above in this
paragraph, the Fiscal Agent shall be protected and shall incur no liability in acting or proceeding,
or in not acting or not proceeding, in accordance with the terms of this Agreement, upon any
resolution, order, notice, request, consent or waiver, certificate, statement, affidavit, facsimile
transmission, electronic mail, or other paper or document which it shall reasonably believe to be
genuine and to have been adopted or signed by the proper person or to have been prepared
and furnished pursuant to any provision of this Agreement, and the Fiscal Agent shall not be
under any duty to make any investigation or inquiry as to any statements contained or matters
referred to in any such instrument.
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(C) No Duty to Inquire. The Fiscal Agent shall not be bound to ascertain or inquire
as to the performance or observance of any of the terms, conditions, covenants or agreements
of the City herein or of any of the documents executed by the City in connection with the 2017
Bonds, or as to the existence of a default or event of default thereunder.
(D) Errors in Judgment. The Fiscal Agent shall not be liable for any error of
judgment made in good faith by a responsible officer of the Fiscal Agent unless it shall be
proved that the Fiscal Agent was negligent in ascertaining the pertinent facts.
(E) No Expenditures. No provision of this Agreement shall require the Fiscal Agent
to expend or risk its own funds or otherwise incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or powers.
(F) No Action. The Fiscal Agent shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement at the request or direction of any of the Owners
under this Agreement unless such Owners shall have offered to the Fiscal Agent reasonable
security or indemnity satisfactory to the Fiscal Agent against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or direction.
(G) Owner of Bonds. The Fiscal Agent may become the owner of the 2017 Bonds
with the same rights it would have if it were not the Fiscal Agent.
Section 7.03. Information; Books and Accounts. The Fiscal Agent shall provide to
the City such information relating to the 2017 Bonds and the funds and accounts maintained by
the Fiscal Agent hereunder as the City shall reasonably request, including but not limited to
monthly statements reporting funds held and transactions by the Fiscal Agent, including the
value of any investments held by the Fiscal Agent. The Fiscal Agent will keep, or cause to be
kept, proper books of record and accounts, separate from all other records and accounts of the
Fiscal Agent, in which complete and correct entries shall be made of all transactions made by
the Fiscal Agent relating to the expenditure of amounts disbursed from the following funds and
any accounts in such funds: the Bond Fund, the Special Tax Fund, the Reserve Fund, the
Improvement Fund, and the Costs of Issuance Fund. Such books of record and accounts shall,
upon reasonable notice, during business hours be subject to the inspection of the City and the
Owners of not less than ten percent (10%) of the principal amount of the 2017 Bonds then
Outstanding, or their representatives duly authorized in writing.
Section 7.04. Notice to Fiscal Agent. The Fiscal Agent may conclusively rely and shall
be fully protected in acting or refraining from acting upon any notice, resolution, request,
consent, order, certificate, facsimile transmission, electronic mail, written instructions, report,
warrant, bond or other paper or document believed by it to be genuine and to have been signed
or presented by the proper party or proper parties. The Fiscal Agent may consult with counsel,
who may be counsel to the City, with regard to legal questions, and the opinion of such counsel
shall be full and complete authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in accordance therewith.
The Fiscal Agent shall not be bound to recognize any person as the Owner of a 2017
Bond unless and until such 2017 Bond is submitted for inspection, if required, and his title
thereto satisfactorily established, if disputed.
Whenever in the administration of its duties under this Agreement the Fiscal Agent shall
deem it necessary or desirable that a matter be proved or established prior to taking or suffering
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any action hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of willful misconduct on the part of the Fiscal Agent,
be deemed to be conclusively proved and established by an Officer’s Certificate of the City, and
such certificate shall be full warrant to the Fiscal Agent for any action taken or suffered under
the provisions of this Agreement or any Supplemental Agreement upon the faith thereof, but in
its discretion the Fiscal Agent may, in lieu thereof, accept other evidence of such matter or may
require such additional evidence as to it may seem reasonable.
Section 7.05. Compensation, Indemnification. The City shall pay to the Fiscal Agent
from time to time reasonable compensation for all services rendered as Fiscal Agent under this
Agreement, and also all reasonable expenses, charges, counsel fees and other disbursements,
including those of its attorneys (including the allocated costs of in-house attorneys), agents and
employees, incurred in and about the performance of their powers and duties under this
Agreement, but the Fiscal Agent shall not have a lien therefor on any funds at any time held by
it under this Agreement. The City further agrees, to the extent permitted by applicable law, to
indemnify and save the Fiscal Agent, its officers, employees, directors and agents harmless
from and against any liabilities, costs, suits, claims or expenses, including fees and expenses of
its attorneys, which it may incur in the exercise and performance of its powers and duties
hereunder which are not due to its negligence or willful misconduct. The obligations of the City
under this Section shall survive resignation or removal of the Fiscal Agent under this
Agreement, and payment of the 2017 Bonds and discharge of this Agreement, but any
monetary obligation of the City arising under this Section shall be limited solely to amounts on
deposit in the Administrative Expense Fund.
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ARTICLE VIII
MODIFICATION OR AMENDMENT
Section 8.01. Amendments Permitted.
(A) With Consent. This Agreement and the rights and obligations of the City and of
the Owners of the 2017 Bonds may be modified or amended at any time by a Supplemental
Agreement pursuant to the affirmative vote at a meeting of Owners, or with the written consent
without a meeting, of the Owners of at least sixty percent (60%) in aggregate principal amount
of the Bonds then Outstanding, exclusive of 2017 Bonds disqualified as provided in Section
8.04. No such modification or amendment shall (i) extend the maturity of any 2017 Bond or
reduce the interest rate thereon, or otherwise alter or impair the obligation of the City to pay the
principal of, and the interest and any premium on, any 2017 Bond, without the express consent
of the Owner of such Bond, or (ii) permit the creation by the City of any pledge or lien upon the
Special Taxes superior to or on a parity with the pledge and lien created for the benefit of the
2017 Bonds (except as otherwise permitted by the Act, the laws of the State of California or this
Agreement), or reduce the percentage of 2017 Bonds required for the amendment hereof.
(B) Without Consent. This Agreement and the rights and obligations of the City and
of the Owners may also be modified or amended at any time by a Supplemental Agreement,
without the consent of any Owners, only to the extent permitted by law and only for any one or
more of the following purposes:
(i) to add to the covenants and agreements of the City herein, other
covenants and agreements thereafter to be observed, or (b) to limit or surrender any
right or power herein reserved to or conferred upon the City;
(ii) to make modifications not adversely affecting any Outstanding 2017
Bonds in any material respect, including, but not limited to, amending the Rate and
Method, so long as the amendment does not result in debt service coverage less than
that set forth in Section 3.06(E);
(iii) to make such provisions for the purpose of curing any ambiguity, or of
curing, correcting or supplementing any defective provision contained in this Agreement,
or in regard to questions arising under this Agreement, as the City and the Fiscal Agent
may deem necessary or desirable and not inconsistent with this Agreement, and which
shall not adversely affect the rights of the Owners of the 2017 Bonds;
(iv) to make such additions, deletions or modifications as may be necessary
or desirable to assure exclusion from gross income for federal income tax purposes of
interest on the 2017 Bonds;
(v) in connection with the issuance of any Parity Bonds under and pursuant
to Section 3.06.
(C) Fiscal Agent’s Consent. Any amendment of this Agreement may not modify any
of the rights or obligations of the Fiscal Agent without its written consent. The Fiscal Agent shall
be furnished an opinion of counsel that any such Supplemental Agreement entered into by the
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City and the Fiscal Agent complies with the provisions of this Section 8.01 and the Fiscal Agent
may conclusively rely on such opinion and shall be absolutely protected in so relying.
Section 8.02. Owners’ Meetings. The City may at any time call a meeting of the
Owners. In such event the City is authorized to fix the time and place of said meeting and to
provide for the giving of notice thereof and to fix and adopt rules and regulations for the conduct
of said meeting.
Section 8.03. Procedure for Amendment with Written Consent of Owners. The
City and the Fiscal Agent may at any time adopt a Supplemental Agreement amending the
provisions of the 2017 Bonds or of this Agreement or any Supplemental Agreement, to the
extent that such amendment is permitted by Section 8.01(A), to take effect when and as
provided in this Section 8.03. A copy of such Supplemental Agreement, together with a request
to Owners for their consent thereto, shall be mailed by first class mail, by the Fiscal Agent, at
the expense of the City), to each Owner of 2017 Bonds Outstanding, but failure to mail copies of
such Supplemental Agreement and request shall not affect the validity of the Supplemental
Agreement when assented to as in this Section 8.03 provided.
Such Supplemental Agreement shall not become effective unless there shall be filed
with the Fiscal Agent the written consents of the Owners of at least sixty percent (60%) in
aggregate principal amount of the 2017 Bonds then Outstanding (exclusive of Bonds
disqualified as provided in Section 8.04) and a notice shall have been mailed as hereinafter in
this Section 8.03 provided. Each such consent shall be effective only if accompanied by proof of
ownership of the 2017 Bonds for which such consent is given, which proof shall be such as is
permitted by Section 9.04. Any such consent shall be binding upon the Owner of the 2017
Bonds giving such consent and on any subsequent Owner (whether or not such subsequent
Owner has notice thereof) unless such consent is revoked in writing by the Owner giving such
consent or a subsequent Owner by filing such revocation with the Fiscal Agent prior to the date
when the notice hereinafter in this Section 8.03 provided for has been mailed.
After the Owners of the required percentage of 2017 Bonds shall have filed their
consents to the Supplemental Agreement, the City shall mail a notice to the Owners in the
manner hereinbefore provided in this Section 8.03 for the mailing of the Supplemental
Agreement, stating in substance that the Supplemental Agreement has been consented to by
the Owners of the required percentage of 2017 Bonds and will be effective as provided in this
Section 8.03 (but failure to mail copies of said notice shall not affect the validity of the
Supplemental Agreement or consents thereto). Proof of the mailing of such notice shall be filed
with the Fiscal Agent. A record, consisting of the papers required by this Section 8.03 to be filed
with the Fiscal Agent, shall be proof of the matters therein stated until the contrary is proved.
The Supplemental Agreement shall become effective upon the filing with the Fiscal Agent of the
proof of mailing of such notice, and the Supplemental Agreement shall be deemed conclusively
binding (except as otherwise hereinabove specifically provided in this Article) upon the City and
the Owners of all 2017 Bonds at the expiration of sixty (60) days after such filing, except in the
event of a final decree of a court of competent jurisdiction setting aside such consent in a legal
action or equitable proceeding for such purpose commenced within such sixty-day period.
Section 8.04. Disqualified Bonds. 2017 Bonds owned or held for the account of the
City, excepting any pension or retirement fund, shall not be deemed Outstanding for the
purpose of any vote, consent or other action or any calculation of Outstanding 2017 Bonds
provided for in this Article VIII, and shall not be entitled to vote upon, consent to, or take any
other action provided for in this Article VIII. Upon request of the Fiscal Agent, the City shall
46
specify in a certificate to the Fiscal Agent those 2017 Bonds disqualified pursuant to this Section
and the Fiscal Agent may conclusively rely on such certificate.
Section 8.05. Effect of Supplemental Agreement. From and after the time any
Supplemental Agreement becomes effective under this Article VIII, this Agreement shall be
deemed to be modified and amended in accordance therewith, the respective rights, duties and
obligations under this Agreement of the City, the Fiscal Agent and all Owners of 2017 Bonds
Outstanding shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions of any such
Supplemental Agreement shall be deemed to be part of the terms and conditions of this
Agreement for any and all purposes.
Section 8.06. Endorsement or Replacement of Bonds Issued After Amendments.
The City may determine that 2017 Bonds issued and delivered after the effective date of any
action taken as provided in this Article VIII shall bear a notation, by endorsement or otherwise,
in form approved by the City, as to such action. In that case, upon demand of the Owner of any
2017 Bond Outstanding at such effective date and upon presentation of his Bond for that
purpose at the Principal Office of the Fiscal Agent or at such other office as the City may select
and designate for that purpose, a suitable notation shall be made on such 2017 Bond. The City
may determine that new 2017 Bonds, so modified as in the opinion of the City is necessary to
conform to such Owners’ action, shall be prepared, executed and delivered. In that case, upon
demand of the Owner of any 2017 Bonds then Outstanding, such new 2017 Bonds shall be
exchanged at the Principal Office of the Fiscal Agent without cost to any Owner, for 2017 Bonds
then Outstanding, upon surrender of such 2017 Bonds.
Section 8.07. Amendatory Endorsement of Bonds. The provisions of this Article VIII
shall not prevent any Owner from accepting any amendment as to the particular 2017 Bonds
held by him, provided that due notation thereof is made on such 2017 Bonds.
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ARTICLE IX
MISCELLANEOUS
Section 9.01. Benefits of Agreement Limited to Parties. Nothing in this Agreement,
expressed or implied, is intended to give to any person other than the City, the Fiscal Agent and
the Owners, any right, remedy, claim under or by reason of this Agreement. Any covenants,
stipulations, promises or agreements in this Agreement contained by and on behalf of the City
shall be for the sole and exclusive benefit of the Owners and the Fiscal Agent.
Section 9.02. Successor and Predecessor. Whenever in this Agreement or any
Supplemental Agreement either the City or the Fiscal Agent is named or referred to, such
reference shall be deemed to include the successors or assigns thereof, and all the covenants
and agreements in this Agreement contained by or on behalf of the City or the Fiscal Agent shall
bind and inure to the benefit of the respective successors and assigns thereof whether so
expressed or not.
Section 9.03. Discharge of Agreement. The City may pay and discharge the entire
indebtedness on all or any portion of 2017 Bonds Outstanding in any one or more of the
following ways:
(A) by paying or causing to be paid the principal of, and interest and
any premium on, all 2017 Bonds Outstanding, as and when the same become
due and payable;
(B) by depositing with the Fiscal Agent, irrevocably, at or before
maturity, money which, together with the amounts then on deposit in the funds
and accounts provided for in the Bond Fund and the Reserve Fund hereof, is
fully sufficient to pay all 2017 Bonds Outstanding, including all principal, interest
and redemption premiums; or
(C) by irrevocably depositing with the Fiscal Agent, irrevocably, cash
and/or Federal Securities in such amount as the City shall determine, as
confirmed by an independent certified public accountant, will, together with the
interest to accrue thereon and moneys then on deposit in the fund and accounts
provided for in the Bond Fund and the Reserve Fund (to the extent invested in
Federal Securities), be fully sufficient to pay and discharge the indebtedness on
all 2017 Bonds (including all principal, interest and redemption premiums) at or
before their respective maturity dates.
If the City shall have taken any of the actions specified in (A), (B) or (C) above, and if
such 2017 Bonds are to be redeemed prior to the maturity thereof and notice of such
redemption shall have been given as in this Agreement provided or provision satisfactory to the
Fiscal Agent shall have been made for the giving of such notice, then, at the election of the City,
and notwithstanding that any such 2017 Bonds shall not have been surrendered for payment,
the pledge of the Special Taxes and other funds provided for in this Agreement and all other
obligations of the City under this Agreement with respect to such 2017 Bonds shall cease and
terminate. Notice of such election shall be filed with the Fiscal Agent.
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Notwithstanding the foregoing, the following obligations and pledges of the City shall
continue in any event: (i) the obligation of the City to pay or cause to be paid to the Owners of
the 2017 Bonds not so surrendered and paid all sums due thereon, (ii) the obligation of the City
to pay amounts owing to the Fiscal Agent pursuant to Section 7.05, and (iii) the obligation of the
City to assure that no action is taken or failed to be taken if such action or failure a dversely
affects the exclusion of interest on the 2017 Bonds from gross income for federal income tax
purposes.
Upon compliance by the City with the foregoing with respect to all 2017 Bonds
Outstanding, any funds held by the Fiscal Agent after payment of all fees and expenses of the
Fiscal Agent, which are not required for the purposes of the preceding paragraph, shall be paid
over to the City and any Special Taxes thereafter received by the City shall not be remitted to
the Fiscal Agent but shall be retained by the City to be used for any purpose permitted under
the Act.
Section 9.04. Execution of Documents and Proof of Ownership by Owners. Any
request, declaration, consent or other instrument which this Agreement may require or permit to
be executed by Owners may be in one or more instruments of similar tenor, and shall be
executed by Owners in person or by their attorneys appointed in writing.
Except as otherwise herein expressly provided, the fact and date of the execution by any
Owner or his attorney of such request, declaration, consent or other instrument, or of such
writing appointing such attorney, may be proved by the certificate of any notary public or other
officer authorized to take acknowledgments of deeds to be recorded in the state in which he
purports to act, that the person signing such request, declaration or other instrument or writing
acknowledged to him the execution thereof, or by an affidavit of a witness of such execution,
duly sworn to before such notary public or other officer.
Except as otherwise herein expressly provided, the ownership of registered 2017 Bonds
and the amount, maturity, number and date of holding the same shall be proved by the
registration books maintained by the Fiscal Agent under Section 2.07.
Any request, declaration, consent or other instrument or writing of the Owner of any
2017 Bond shall bind all future Owners of such 2017 Bond in respect of anything done or
suffered to be done by the City or the Fiscal Agent in good faith and in accordance therewith.
Section 9.05. Waiver of Personal Liability. No Council member, officer, agent or
employee of the City shall be individually or personally liable for the payment of the principal of
or interest or any premium on the 2017 Bonds; but nothing herein contained shall relieve any
such Council member, officer, agent or employee from the performance of any official duty
provided by law.
Section 9.06. Notices to and Demands on City and Fiscal Agent. Any notice or
demand which by any provision of this Agreement is required or permitted to be given or served
by the Fiscal Agent to or on the City may be given or served (A) by facsimile transmission
receipt of which has been confirmed, (B) by being deposited postage prepaid in a post office
letter box addressed (until another address is filed by the City with the Fiscal Agent) or (C)
electronic mail as follows:
49
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Fax: (925) ___-____ - Attention: Director of Administrative Services
Email: colleen.tribby@dublin.ca.gov
Any notice or demand which by any provision of this Agreement is required or permitted
to be given or served by the City to or on the Fiscal Agent may be given or served (A) by
facsimile transmission receipt of which has been confirmed, (B) by being deposited postage
prepaid in a post office letter box addressed (until another address is filed by the Fiscal Agent
with the City) or (C) electronic mail as follows:
U.S. Bank National Association
Global Corporate Trust Services
One California Street, 10th Floor
San Francisco, California 94111
Fax: (415) ___-____ - Attention: Michelle Knutson
Email: michelle.knutson@usbank.com
Section 9.07. Partial Invalidity. If any Section, paragraph, sentence, clause or phrase
of this Agreement shall for any reason be held by a court of competent jurisdiction to be illegal
or unenforceable, such holding shall not affect the validity of the remaining portions of this
Agreement. The City hereby declares that it would have adopted this Agreement and each and
every other Section, paragraph, sentence, clause or phrase hereof and authorized the issuance
of the 2017 Bonds pursuant thereto irrespective of the fact that any one or more Sections,
paragraphs, sentences, clauses, or phrases of this Agreement may be held illegal, invalid or
unenforceable.
Section 9.08. Unclaimed Moneys. Anything contained herein to the contrary
notwithstanding, any moneys held by the Fiscal Agent for the payment and discharge of the
principal of, and the interest and any premium on, the 2017 Bonds which remains unclaimed for
two (2) years after the date when the payment of such principal, interest and premium have
become payable, if such moneys were held by the Fiscal Agent at such date, shall be repaid by
the Fiscal Agent to the City as its absolute property free from any trust, and the Fiscal Agent
shall thereupon be released and discharged with respect thereto and the Owners of such 2017
Bonds shall look only to the City for the payment of the principal of, and interest and any
premium on, such 2017 Bonds. Any right of any Owner to look to the City for such payment
shall survive only so long as required under applicable law.
Section 9.09. Applicable Law. This Agreement shall be governed by and enforced in
accordance with the laws of the State applicable to contracts made and performed in the State.
Section 9.10. Conflict with Act. In the event of a conflict between any provision of this
Agreement with any provision of the Act as in effect on the Closing Date, the provision of the Act
shall prevail over the conflicting provision of this Agreement.
Section 9.11. Conclusive Evidence of Regularity. 2017 Bonds issued under this
Agreement shall constitute conclusive evidence of the regularity of all proceedings under the Act
relative to their issuance and the levy of the Special Taxes.
50
Section 9.12. Payment on Business Day. In any case where the date of the maturity
of interest or of principal (and premium, if any) of the 2017 Bonds, or the date fixed for
redemption of any 2017 Bonds, or the date any action is to be taken under this Agreement, is
other than a Business Day, the payment of interest or principal (and premium, if any) or the
action shall be made on the next succeeding day which is a Business Day with the same force
and effect as if made on the date required and no interest shall accrue for the period from and
after such date.
Section 9.13. State Reporting Requirements. In addition to Section 5.15, the
following requirements shall apply to the 2017 Bonds:
(A) Annual Reporting. Not later than October 30 of each calendar year, beginning
with the October 30 first succeeding the date of the 2017 Bonds, and in each calendar year
thereafter until the October 30 following the final maturity of the Bonds, the Director of
Administrative Services shall cause the information required by Government Code Section
53359.5(b) to be supplied to CDIAC. The annual reporting shall be made using such form or
forms as may be prescribed by CDIAC.
(B) Other Reporting. If at any time the Fiscal Agent fails to pay principal and
interest due on any scheduled payment date for the 2017 Bonds, or if funds are withdrawn from
the Reserve Fund to pay principal and interest on the 2017 Bonds so as to reduce the amount
in the Reserve Fund to less than the Reserve Requirement, the Fiscal Agent shall notify the
Director of Administrative Services of such failure or withdrawal in writing. The Director of
Administrative Services shall notify CDIAC and the Original Purchasers of such failure or
withdrawal within 10 days of such failure or withdrawal.
(C) Special Tax Reporting. The Director of Administrative Services shall file a
report with the City no later than January 1, 20__, and at least once a year thereafter, which
annual report shall contain: (i) the amount of Special Taxes collected and expended with
respect to Improvement Area No. 1, (ii) the amount of 2017 Bond proceeds collected and
expended with respect to the CFD, and (iii) the status of the Project. It is acknowledged that the
Special Tax Fund and the Special Tax Prepayments Account are the accounts into which
Special Taxes collected in Improvement Area No. 1 will be deposited for purposes of Section
50075.1(c) of the California Government Code, and the funds and accounts listed in Section
4.01 are the funds and accounts into which 2017 Bond proceeds will be deposited for purposes
of Section 53410(c) of the California Government Code, and the annual report described in the
preceding sentence is intended to satisfy the requirements of Sections 50075.1(d), 50075.3(d)
and 53411 of the California Government Code.
(D) Amendment. The reporting requirements of this Section 9.13 shall be amended
from time to time, without action by the City or the Fiscal Agent (i) with respect to
subparagraphs (A) and (B) above, to reflect any amendments to Section 53359.5(b) or Section
53359.5(c) of the Act, and (ii) with respect to subparagraph (C) above, to reflect any
amendments to Section 50075.1, 50075.3, 53410 or 53411 of the California Government Code.
Notwithstanding the foregoing, any such amendment shall not, in itself, affect the City’s
obligations under the Continuing Disclosure Agreement. The City shall notify the Fiscal Agent in
writing of any such amendments which affect the reporting obligations of the Fiscal Agent under
this Agreement.
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(E) No Liability. None of the City and its officers, agents and employees, the
Director of Administrative Services or the Fiscal Agent shall be liable for any inadver tent error in
reporting the information required by this Section 9.13.
The Director of Administrative Services shall provide copies of any such reports to any
Bondowner upon the written request of a Bondowner and payment by the person requesting the
information of the cost of the City to photocopy and pay any postage or other delivery cost to
provide the same, as determined by the Director of Administrative Services. The term
“Bondowner” for purposes of this Section 9.13 shall include any “Beneficial Owner” of the 2017
Bonds, as the term “Beneficial Owner” is described in Section 2.10.
Section 9.14. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original.
* * * * * * * * * *
52
IN WITNESS WHEREOF, the City and the Fiscal Agent have caused this Agreement to
be executed as of the date first written above.
CITY OF DUBLIN,
FOR AND ON BEHALF OF CITY OF DUBLIN
COMMUNITY FACILITIES DISTRICT
NO. 2015-1 (Dublin Crossing)
By:
City Manager
U.S. BANK NATIONAL ASSOCIATION,
as Fiscal Agent
By:
Authorized Officer
Exhibit A
Page 1
EXHIBIT A
FORM OF 2017 BOND
No. __ ***$______***
UNITED STATES OF AMERICA
STATE OF CALIFORNIA
COUNTY OF ALAMEDA
CITY OF DUBLIN
Improvement Area No. 1
Community Facilities District No. 2015-1
(Dublin Crossing)
Special Tax Bond, Series 2017
INTEREST RATE MATURITY DATE DATED DATE CUSIP
____% September 1, ____ ___________, 2017 ___________
REGISTERED OWNER: Cede & Co.
PRINCIPAL AMOUNT: *********DOLLARS
The City of Dublin (the City) for and on behalf of the City of Dublin Community Facilities
District No. 2015-1 (Dublin Crossing) (the “CFD”), for value received, hereby promises to pay
solely from the Special Tax (as hereinafter defined) to be collected in Improvement Area No. 1
of the CFD or amounts in certain funds and accounts held under the Agreement (as hereinafter
defined), to the registered owner named above, or registered assigns, on the maturity date set
forth above, unless redeemed prior thereto as hereinafter provided, the principal amount set
forth above, and to pay interest on such principal amount from the Dated Date set forth above,
or from the most recent Interest Payment Date (as hereinafter defined) to which interest has
been paid or duly provided for (unless this Bond is authenticated on or before an Interest
Payment Date (as hereinafter defined) and after the close of business on the Record Date (as
hereinafter defined) preceding such Interest Payment Date, in which event it shall bear interest
from such Interest Payment Date, or unless this Bond is authenticated on or prior to _______
15, 201_, in which event it shall bear interest from the Dated Date identified above, payable
semiannually on each September 1 and March 1, commencing _______ 1, 201_ (each an
“Interest Payment Date”), at the interest rate set forth above, until the principal amount hereof is
paid or made available for payment provided, however, that if at the time of authentication of
this Bond, interest is in default on this Bond, this Bond shall bear interest from the Interest
Payment Date to which interest has previously been paid or made available for payment.
Principal of and interest on the Bonds (including the final interest payment upon maturity
or earlier redemption), is payable on the applicable Interest Payment Date by check of the
Fiscal Agent (defined below) mailed by first class mail to the registered Owner thereof at such
registered Owner's address as it appears 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 made on such Interest Payment Date upon written instructions of any Owner of
$1,000,000 or more in aggregate principal amount of Bonds delivered to the Fiscal Agent prior
Exhibit A
Page 2
to the applicable Record Date. The principal of the Bonds and any premium on the Bonds are
payable in lawful money of the United States of America upon surrender of the Bonds at the
Principal Office of the Fiscal Agent or such other place as designated by the Fiscal Agent.
This Bond is one of a duly authorized issue of bonds in the aggregate principal amount
of $__________ approved by resolution of the City Council of the City on __________, 2017
(the “Resolution”), under the Mello-Roos Community Facilities Act of 1982, as amended, being
sections 53311, et seq., of the California Government Code (the “Act”) for the purpose funding
certain facilities for the CFD, and is one of the series of bonds designated “City of Dublin
Improvement Area No. 1 Community Facilities District No. 2015-1 (Dublin Crossing) Special Tax
Bonds, Series 2017” (the “Bonds”). The issuance of the Bonds and the terms and conditions
thereof are provided for by a Fiscal Agent Agreement, dated as of __________ 1, 2017 (the
“Agreement”), between the City and U.S. Bank National Association (the “Fiscal Agent”) and this
reference incorporates the Agreement herein, and by acceptance hereof the owner of this Bond
assents to said terms and conditions. The Agreement is authorized under, this Bond is issued
under and both are to be construed in accordance with, the laws of the State of California.
Pursuant to the Act, the Resolution and the Agreement, the principal of and interest on
this Bond are payable solely from the annual special tax authorized under the Act to be
collected within Improvement Area No. 1 of the CFD (the “Special Tax”) and certain funds held
under the Agreement. Any tax for the payment hereof shall be limited to the Special Tax, except
to the extent that provision for payment has been made by the City, as may be permitted by law.
The Bonds do not constitute obligations of the City for which the City is obligated to levy or
pledge, or has levied or pledged, general or special taxation other than described hereinabove.
Neither the faith and credit nor the taxing power of the City (except to the limited extent set forth
in the Agreement) or the State of California or any political subdivision thereof is pledged to the
payment of the Bonds.
Optional Redemption. The Bonds maturing on or after September 1, 20__ are subject to
redemption prior to their stated maturities, on any date on and after September 1, 20__, in
whole or in part, at a redemption price equal to the principal amount of the Bonds to be
redeemed, together with accrued interest thereon to the date fixed for redemption, without
premium.
Mandatory Partial Redemption. The Term Bond maturing on September 1, 20__ is
subject to mandatory partial redemption in part by lot, from payments made by the City from the
Bond Fund, at a redemption price equal to the principal amount thereof to be redeemed, without
premium, together with accrued interest thereon to the date of redemption, in the aggregate
respective principal amounts all as set forth in the following table:
Mandatory Partial
Redemption Date
(September 1)
Principal Amount
Subject to Redemption
20__ $___,000
20__ ___,000
20__ ___,000
20__ ___,000
20__ ___,000
20__ ___,000
20__ ___,000
Exhibit A
Page 3
20__ ___,000
20__ ___,000
20__ (Maturity) ___,000
Provided, however, if some but not all of the Term Bonds have been redeemed as a
result of an optional redemption or a mandatory partial redemption, the total amount of all future
mandatory partial redemption principal amounts shall be reduced by the aggregate principal
amount of Term Bonds so redeemed, to be allocated among such mandatory partial redemption
principal amounts on a pro rata basis in integral multiples of $5,000 as determined by the Fiscal
Agent, notice of which determination shall be given by the Fiscal Agent to the City.
Redemption From Special Tax Prepayments. The Bonds are also subject to redemption
from the proceeds of Special Tax Prepayments and any corresponding transfers from the
Reserve Fund pursuant to the Agreement on any Interest Payment Date, among maturities so
as to maintain substantially the same debt service profile 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 Date Redemption Price
Any Interest Payment Date on or before March 1, 20__ 103%
On September 1, 20__ and March 1, 20__ 102
On September 1, 20__ and March 1, 20__ 101
On September 1, 20__ and any Interest Payment Date thereafter 100
Under the terms of the Agreement, in the event the City pays and discharges the entire
indebtedness on all or any portion on the Bonds Outstanding (as such term is defined therein) in
one or more of the ways specified therein, the pledge of the Special Taxes and other funds
provided for in the Agreement and all other obligations of the City under the Agreement with
respect to such Bonds shall cease and terminate.
Notice of redemption with respect to the Bonds to be redeemed shall be given to the
registered owners thereof, in the manner, to the extent and subject to the provisions of the
Agreement. The City has the right to rescind any notice of the optional redemption of Bonds by
written notice to the Fiscal Agent on or prior to the date fixed for redemption as further described
in the Agreement.
This Bond shall be registered in the name of the owner hereof, as to both principal and
interest. Each registration and transfer of registration of this Bond shall be entered by the Fiscal
Agent in books kept by it for this purpose and authenticated by its manual signature upon the
certificate of authentication endorsed hereon.
No transfer or exchange hereof shall be valid for any purpose unless made by the
registered owner, by execution of the form of assignment endorsed hereon, and authenticated
as herein provided, and the principal hereof, interest hereon and any redemption premium shall
be payable only to the registered owner or to such owner’s order. The Fiscal Agent shall require
the registered owner requesting transfer or exchange to pay any tax or other governmental
charge required to be paid with respect to such transfer or exchange. No transfer or exchange
hereof shall be required to be made in the circumstances set forth in the Fiscal Agent
Agreement.
Exhibit A
Page 4
The Agreement and the rights and obligations of the City thereunder may be modified or
amended as set forth therein. The principal of the Bonds is not subject to acceleration upon a
default under the Agreement or any other document.
This Bond shall not become valid or obligatory for any purpose until the certificate of
authentication and registration hereon endorsed shall have been dated and signed by the Fiscal
Agent.
IT IS HEREBY CERTIFIED, RECITED AND DECLARED by the City that all acts,
conditions and things required by law to exist, happen and be performed precedent to and in the
issuance of this Bond have existed, happened and been performed in due time, form and
manner as required by law, and that the amount of this Bond, together with all other
indebtedness of the City, does not exceed any debt limit prescribed by the laws or Constitution
of the State of California.
Unless this Bond is presented by an authorized representative of The Depository Trust
Company, a New York corporation (“DTC”), to the Fiscal Agent for registration of transfer,
exchange, or payment, and any Bond issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized representative of DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has
an interest herein.
Exhibit A
Page 5
IN WITNESS WHEREOF, the City of Dublin has caused this Bond to be to be signed by
the facsimile signature of its Mayor and countersigned by the facsimile signature of the City
Clerk with the seal of the City imprinted hereon.
[S E A L]
City Clerk Mayor
[FORM OF FISCAL AGENT’S CERTIFICATE OF AUTHENTICATION AND REGISTRATION]
This is one of the Bonds described in the Agreement which has been authenticated on
, 2017.
U.S. BANK NATIONAL ASSOCIATION,
as Fiscal Agent
By:
Authorized Signatory
Exhibit A
Page 6
FORM OF ASSIGNMENT
For value received, the undersigned do(es) hereby sell, assign and transfer unto
(Name, Address and Tax Identification or Social Security Number of Assignee)
the within Bond and do(es) hereby irrevocably constitute and appoint
, attorney, to transfer the same on the registration books of the Fiscal Agent, with
full power of substitution in the premises.
Dated:
Signature Guaranteed:
NOTICE: Signature guarantee shall be
made by a guarantor institution participating
in the Securities Transfer Agents Medallion
Program or in such other guarantee
program acceptable to the Fiscal Agent.
NOTICE: The signature on this assignment
must correspond with the name(s) as
written on the face of the within Bond in
every particular without alteration or
enlargement or any change whatsoever.
Exhibit B
Page 1
EXHIBIT B
CITY OF DUBLIN
Improvement Area No. 1
Community Facilities District No. 2015-1
(Dublin Crossing)
Special Tax Bonds, Series 2017
OFFICER’S CERTIFICATE REQUESTING DISBURSEMENT FROM IMPROVEMENT
FUND
REQUISITION NO. _____
The undersigned hereby states and certifies that:
(i) I am the duly appointed, qualified and acting _____________________ of the
City of Dublin, a municipal corporation duly organized and existing under the laws of the State of
California (the “City”) and as such, am familiar with the facts herein certified and am authorized
to certify the same.
(ii) I am an “Authorized Officer,” as such term is defined in that certain Fiscal Agent
Agreement, dated as of __________ 1, 2017 (the “Fiscal Agent Agreement”), by and between
the City and U.S. Bank National Association, as fiscal agent (the “Fiscal Agent”).
(iii) Under Section 4.07(B) of the Fiscal Agent Agreement, the undersigned hereby
requests and authorizes the Fiscal Agent to disburse from the Improvement Fund established
under the Fiscal Agent Agreement to each payee designated on Schedule A attached hereto
and by this reference incorporated herein, the amount set forth opposite such payee, for
payment or reimbursement of previous payment of a Project cost (as Project is defined in the
Fiscal Agent Agreement) as described on attached Schedule A. Payments shall be made by
check or wire transfer in accordance with the payment instructions set forth on Schedule A (or
the invoice attached thereto) and the Fiscal Agent shall rely on such payment instructions as
though given by the City with no duty to investigate or inquire as to the authenticity of the
invoice or the payment instructions contained therein or the authority under which they were
given.
(iv) No portion of the amount herein requested to be disbursed was set forth in any
Officer’s Certificate previously filed requesting disbursement.
Dated:
CITY OF DUBLIN
By: _______________________________
(Signature)
_______________________________
(Title)
Exhibit B
Page 2
SCHEDULE A
Payee Name and Address Purpose of Obligation Amount
Exhibit C
Page 1
EXHIBIT C
CITY OF DUBLIN
Improvement Area No. 1
Community Facilities District No. 2015-1
(Dublin Crossing)
Special Tax Bonds, Series 2017
OFFICER’S CERTIFICATE REQUESTING DISBURSEMENT
FROM COSTS OF ISSUANCE FUND
REQUISITION NO. _____
The undersigned hereby states and certifies that:
(i) I am the duly appointed, qualified and acting ________________________ of the
City of Dublin, a municipal corporation duly organized and existing under the laws of the State of
California (the “City”) and as such, am familiar with the facts herein certified and am authorized
to certify the same.
(ii) I am an “Authorized Officer,” as such term is defined in that certain Fiscal Agent
Agreement, dated as of ______________ 1, 2017 (the “Fiscal Agent Agreement”), by and
between the City and U.S. Bank National Association, as fiscal agent (the “Fiscal Agent”).
(iii) Under Section 4.02(B) of the Fiscal Agent Agreement, the undersigned hereby
requests and authorizes the Fiscal Agent to disburse from the Costs of Issuance Fund
established under the Fiscal Agent Agreement to each payee designated on Schedule A
attached hereto and by this reference incorporated herein, the amount set forth in an invoice
submitted by each such payee but no more than the amount set forth opposite such payee, for
payment or reimbursement of previous payment of Costs of Issuance (as that term is defined in
the Fiscal Agent Agreement) as described on attached Schedule A. Payments shall be made
by check or wire transfer in accordance with the payment instructions set forth on Schedule A
(or the invoice attached thereto) and the Fiscal Agent shall rely on such payment instructions as
though given by the City with no duty to investigate or inquire as to the authenticity of the
invoice or the payment instructions contained therein or the authority under which they were
given.
(iv) The disbursements described on the attached Schedule A constitute Costs of
Issuance, and are properly chargeable to the Costs of Issuance Fund.
Dated:
CITY OF DUBLIN
By: ____________________________
(Signature)
____________________________
(Title)
Exhibit C
Page 2
SCHEDULE A
Payee Name and Address Purpose of Obligation Amount
Exhibit D
Page 1
EXHIBIT D
CITY OF DUBLIN
Improvement Area No. 1
Community Facilities District No. 2015-1
(Dublin Crossing)
Special Tax Bonds, Series 2017
OFFICER’S CERTIFICATE REQUESTING DISBURSEMENT
FROM ADMINISTRATIVE EXPENSE FUND
REQUISITION NO. _____
The undersigned hereby states and certifies that:
(i) I am the duly appointed, qualified and acting ______________________ of the
City of Dublin, a municipal corporation duly organized and existing under the laws of the State of
California (the “City”) and as such, am familiar with the facts herein certified and am authorize d
to certify the same.
(ii) I am an “Authorized Officer,” as such term is defined in that certain Fiscal Agent
Agreement, dated as of ______________ 1, 2017 (the “Fiscal Agent Agreement”), by and
between the City and U.S. Bank National Association, as fiscal agent (the “Fiscal Agent”).
(iii) Under Section 4.06(B) of the Fiscal Agent Agreement, the undersigned hereby
requests and authorizes the Director of Administrative Services (as defined in the Fiscal Agent
Agreement) to disburse from the Administrative Expense Fund established under the Fiscal
Agent Agreement to each payee designated on Schedule A attached hereto and by this
reference incorporated herein, the amount set forth opposite such payee, for payment or
reimbursement of previous payment of an Administrative Expense or Costs of Issuance (as
those terms are defined in the Fiscal Agent Agreement) as described on attached Schedule A.
Payments shall be made by check or wire transfer in accordance with the payment instructions
set forth on Schedule A (or the invoice attached thereto).
(iv) The disbursements described on the attached Schedule A constitute
Administrative Expenses or Costs of Issuance, and are properly chargeable to the
Administrative Expense Fund.
Dated:
CITY OF DUBLIN
By: _______________________________
(Signature)
_______________________________
(Title)
Exhibit D
Page 2
SCHEDULE A
Payee Name and Address Purpose of Obligation Amount
2785656.6
$__________
CITY OF DUBLIN
IMPROVEMENT AREA NO. 1
COMMUNITY FACILITIES DISTRICT NO. 2015-1 (DUBLIN CROSSING)
SPECIAL TAX BONDS, SERIES 2017
PURCHASE CONTRACT
July __, 2017
City of Dublin
100 Civic Plaza
Dublin, California 94568
Ladies and Gentlemen:
The undersigned, Prager & Co., LLC (the “Underwriter”) offers to enter into this
Purchase Contract (the “Purchase Contract”) with you, the City of Dublin (the “City”), for and
on behalf of the City of Dublin Community Facilities District No. 2015-1 (Dublin Crossing) (the
“District”), and upon acceptance hereof, this offer will become binding upon the City and the
Underwriter. This offer is made subject to acceptance by delivery of an executed counterpart
hereof at or prior to 11:59 p.m., Pacific time, on this date or on such later date as shall have been
consented to by the parties hereto. Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Fiscal Agent Agreement, dated as of _________, 2017 (the
“Fiscal Agent Agreement”), between the City and U.S. Bank National Association, as fiscal agent
(the “Fiscal Agent”).
1. Purchase, Sale and Delivery of the Bonds.
(a) Upon the basis of the representations, warranties and agreements herein set forth
and subject to the terms and conditions contained herein, the Underwriter hereby agrees to
purchase from the City, and the City hereby agrees to sell to the Underwriter, all (but not less
than all) of the $________ aggregate principal amount of the City of Dublin Improvement Area
No. 1 Community Facilities District No. 2015-1 (Dublin Crossing) Special Tax Bonds, Series
2017 (the “Bonds”), dated the date of delivery of the Bonds, bearing interest at the rates and
maturing on the dates in the principal amounts, and subject to redemption, as set forth in Exhibit
A attached hereto. The Underwriter will purchase the Bonds at an aggregate price of
$__________ (being the aggregate principal amount of the Bonds of $________, plus a [net]
original issue premium of $_________, less an Underwriter’s discount of $________).
The Bonds shall be substantially in the form described in, shall be issued and
secured under the provisions of, and shall be payable as provided in, the Fiscal Agent
Agreement. The Bonds and interest thereon will be payable from Special Tax Revenues levied
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and collected on the taxable land within Improvement Area No. 1 of the District. The City,
acting as the legislative body of the District, authorized the issuance of the Bonds pursuant to a
resolution adopted on _________, 2017 (the “City Resolution”).
The proceeds from the sale of the Bonds will be used in accordance with the
Fiscal Agent Agreement and the Mello-Roos Community Facilities Act of 1982, as amended,
constituting Section 53311 et seq. of the California Government Code (the “Act”), (i) to finance
the costs of the acquisition and/or construction of capital improvements and reimbursement of
capital facilities impact fees, (ii) to fund a debt service reserve fund for the Bonds, (iii) to pay for
capitalized interest, and (iv) to pay for the costs of issuing the Bonds, all as more fully described
in the Official Statement under the caption, “INTRODUCTION—Use of Proceeds,” and as
enumerated in Section 5 of this Purchase Contract.
(b) The City will cooperate in the preparation and delivery to the Underwriter of the
Official Statement, dated the date hereof, substantially in the form of the Preliminary Official
Statement relating to the Bonds, dated ________, 2017 (the “Preliminary Official Statement”),
with only such changes therein as have been accepted by the Underwriter and approved by Jones
Hall, a Professional Law Corporation (“Bond Counsel”) (the Preliminary Official Statement with
such changes, and including the cover page and all appendices, exhibits, reports and statements
included therein or attached thereto, as then supplemented in accordance with this Purchase
Contract, being herein called the “Official Statement”), signed on behalf of the City by the City
Manager or other authorized official of the City, in such quantities as the Underwriter shall
request. The City confirms that the information contained in the Preliminary Official Statement
was deemed to be final as of its date for purposes of Rule 15c2-12 promulgated under the
Securities Exchange Act of 1934 (“Rule 15c2-12”), except for any information permitted to be
omitted therefrom by Rule 15c2-12, and represents and warrants that information contained in
the Official Statement is deemed final as of the date hereof for purposes of Rule 15c2-12. The
City will undertake, pursuant to the Continuing Disclosure Agreement dated as of ________,
2017 (the “Continuing Disclosure Agreement”), between the City and the Dissemination Agent
(as defined therein), to provide certain annual information and notices of the occurrence of
certain enumerated events. A description of this undertaking is set forth in the Official
Statement.
(c) At 8:00 a.m., Pacific time, on August __, 2017 or at such other time or on such
earlier or later date as we may mutually agree upon (the “Closing Date”), the City will deliver or
cause to be delivered to The Depository Trust Company (“DTC”) for the account of the
Underwriter in New York, New York, or at such other place as we may mutually agree upon, the
Bonds in definitive form, bearing proper CUSIP numbers, duly executed and authenticated, and
to the offices of Bond Counsel in Oakland, California the other documents hereinafter
mentioned; and, subject to the conditions of this Purchase Contract, the Underwriter will accept
such delivery and pay the purchase price of the Bonds as set forth in paragraph (a) of this Section
by certified or official bank check or by wiring funds (which payment in any event shall be in
immediately available funds) payable to the order of the Fiscal Agent (such delivery and
payment being herein referred to as the “Closing”). Upon initial issuance, the ownership of the
Bonds will be registered in the name of Cede & Co., as nominee of DTC, and will be in the form
of a separate, single, fully-registered Bond for each maturity.
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(d) The Underwriter has entered into this Purchase Contract in reliance upon the
representations and warranties of the City contained herein and the certificates and opinions
required to be delivered pursuant hereto.
2. Representations, Warranties and Agreements of the City.
The City represents and warrants to and agrees with the Underwriter that:
(a) The District is a community facilities district duly organized and validly existing
under the Constitution and laws of the State of California, and the City, acting on behalf of the
District, has, and will have at the Closing Date, full power and authority to issue the Bonds, to
adopt the City Resolution, to enter into the Fiscal Agent Agreement, the Continuing Disclosure
Agreement, and this Purchase Contract and to perform its obligations under the Fiscal Agent
Agreement, the Continuing Disclosure Agreement, and this Purchase Contract, and when
executed and delivered by the respective parties thereto, the Fiscal Agent Agreement, the
Continuing Disclosure Agreement, and this Purchase Contract will constitute the legal, valid and
binding obligations of the City enforceable in accordance with their respective terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, arrangement,
fraudulent conveyance, moratorium and other similar laws related to or affecting creditors’ rights
generally and to the application of equitable principles as the court having jurisdiction m ay
impose, regardless of whether such proceeding is considered a proceeding in equity or law, to the
exercise of judicial discretion in appropriate cases, and to the limitations on legal remedies
against governmental entities in the State of California and by matters of public policy;
(b) When delivered to and paid for by the Underwriter at the Closing in accordance
with the provisions of this Purchase Contract and assuming proper authentication by the Fiscal
Agent by the manual signature of an authorized officer thereof, the Bonds will have been duly
authorized, executed, issued and delivered and will constitute valid and binding limited
obligations of the City, enforceable in accordance with their terms and entitled to the benefit and
security of the Fiscal Agent Agreement;
(c) By official action of the City prior to or concurrently with the acceptance hereof,
the City has authorized and approved the distribution of the Preliminary Official Statement,
authorized and approved the distribution of the Official Statement, and authorized and approved
the execution and delivery of, and the performance by the City of the obligations on its part
contained in, the Bonds, the Fiscal Agent Agreement, the Continuing Disclosure Agreement, and
this Purchase Contract, and the consummation by the City of all other transactions on its part
contemplated by the Official Statement and this Purchase Contract;
(d) As of the date hereof, there is no action, suit, proceeding, inquiry or investigation,
at law or in equity, before or by any court, governmental agency, public board or body, pending
(with service of process against the City having been accomplished) or known to the City to be
threatened against the City, seeking to restrain or enjoin the issuance, sale, execution or delivery
of the Bonds, or in any way contesting any proceedings of the City taken concerning the issuance
or sale thereof, the adoption of the City Resolution, the pledge or application of any moneys or
security provided for the payment of the Bonds, or in any way contesting the validity or
enforceability of the Bonds, the Fiscal Agent Agreement, the Continuing Disclosure Agreement,
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or this Purchase Contract, or contesting in any way the completeness or accuracy of the
Preliminary Official Statement or the Official Statement, as amended or supplemented, or the
existence or powers of the City relating to the issuance of the Bonds;
(e) As of the date thereof and as of the date hereof, the statements and information
contained in the Preliminary Official Statement were and will be true, correct and complete in all
material respects, and did not and will not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the statements and
information therein, in light of the circumstances under which they were made, not misleading.
(f) Both as of the date hereof and at the Closing Date, the statements and information
contained in the Official Statement are and will be true, correct and complete in all material
respects, and do not and will not contain any untrue statement of a material fact or omit to state a
material fact which is necessary to make such statements and information therein, in the light of
the circumstances under which they were made, not misleading in any material respect;
(g) The City will furnish such information, execute such instruments and take such
other action in cooperation with the Underwriter as the Underwriter may reasonably request in
endeavoring (i) to qualify the Bonds for offer and sale under the Blue Sky or other securities
laws and regulations of such states and other jurisdictions of the United States as the Underwriter
may designate, and (ii) to determine the eligibility of the Bonds for investment under the laws of
such states and other jurisdictions, and subject to Section 6 hereof, will use its best efforts to
continue such qualification in effect so long as required for distribution of the Bonds; provided,
however, that in no event shall the City be required to qualify as a foreign entity in any such state
or take any action that would subject it to general, special or unlimited service of process in any
jurisdiction in which it is not now so subject;
(h) To the best knowledge of the City, the adoption of the City Resolution will not,
and the execution and delivery by the City of the Bonds, the Fiscal Agent Agreement, the
Continuing Disclosure Agreement, and this Purchase Contract (collectively, the “City
Documents”) and compliance with the provisions on the City’s part contained therein will not, in
any material respect, conflict with or constitute on the part of the City a breach of or default
under any material law, administrative regulation, court order, judgment, decree, loan agreement,
indenture, bond, note, resolution, agreement or other instrument to which the City is a party or by
which it is bound, which breach or default would have a material adverse effect on the City’s
ability to perform its obligations under the City Documents;
(i) To the best knowledge of the City, neither the District nor the City is in breach of
or in default under any applicable material law or administrative regulation of the State of
California or the United States or any applicable material judgment or decree or any material
loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the
City is a party or is otherwise subject, which breach or default would have a material adverse
effect on the City’s ability to perform its obligations under the City Documents, and no event has
occurred and is continuing which, with the passage of time or the giving of notice, or both,
would constitute a breach of or a default or an event of default under any such instrument, which
breach or default would have a material adverse effect on the City’s ability to perform its
obligations under the City Documents;
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(j) To the best knowledge of the City, no other public debt secured by a tax or
assessment levied by the City on the land in the District is in the process of being authorized,
and, except for the City of Dublin Community Facilities District No. 2017-1 (Dublin Crossing –
Public Services), no assessment districts or community facilities district have been or are in the
process of being formed by the City that include any portion of the land within the District;
(k) The Special Tax constituting the security for the Bonds has been duly and
lawfully authorized and may be levied under the Act, the Constitution of the State of California
and applicable laws of the State of California, and the Special Tax, when levied, will constitute a
valid and legally binding continuing lien on the properties on which it has been levied;
(l) The Fiscal Agent Agreement creates a valid pledge of the Special Tax Revenues
and the moneys deposited in any fund established pursuant to the Fiscal Agent Agreement,
including the investments thereof, subject in all cases to the provisions of the Fiscal Agent
Agreement permitting the application thereof for the purposes and on the terms an d conditions
set forth therein. Until such time as moneys have been set aside in an amount sufficient to pay
all then outstanding Bonds at maturity or to the date of redemption if redeemed prior to maturity,
plus unpaid interest thereon to maturity or to the date of redemption if redeemed prior to
maturity, and premium, if any, the City will faithfully perform and abide by all of its covenants
and undertakings, and the provisions contained in the Fiscal Agent Agreement;
(m) The City shall not knowingly take or omit to take any action that, under existing
law, may adversely affect the exemption from state income taxation or the exclusion from gross
income for federal income tax purposes of the interest on the Bonds;
(n) If between the date of this Purchase Contract and up to and including the 25th day
following the end of the underwriting period (as such term is defined in Rule 15c2-12) (i) an
event occurs, of which the City has knowledge, which might or would cause the information in
the Official Statement, as then supplemented or amended, to contain an untrue statement of a
material fact or to omit to state a material fact required to be stated therein or necessary to make
such information therein, in the light of the circumstances under which it was presented, not
misleading, or (ii) if the City is otherwise requested to amend, supplement or otherwise change
the Official Statement, the City will notify the Underwriter, and if in the reasonable opinion of
the Underwriter such event requires the preparation and publication of a supplement or
amendment to the Official Statement, the City will participate in the amendment or supplement
in a form and in a manner approved by the Underwriter and counsel to the City, provided all
expenses thereby incurred will be paid by the City and provided further that, for purposes of this
provision, the end of the underwriting period shall be the Closing Date unless the Underwriter on
or prior to the Closing provides written notice to the contrary to the City; and
For twenty-five (25) days from the date of the end of the underwriting period (as
such term is defined in Rule l5c2-12), (i) the City will not participate in the issuance of any
amendment of or supplement to the Official Statement to which, after being furnished with a
copy, the Fiscal Agent or the Underwriter shall reasonably object in writing or which shall be
disapproved by any of their respective counsel, and (ii) if any event relating to or affecting the
City shall occur as a result of which it is necessary, in the opinion of counsel for the Underwriter,
to amend or supplement the Official Statement in order to make the Official Statement not
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misleading in light of the circumstances existing at the time it is delivered to a purchaser, the
City will forthwith cause the preparation of and furnish to the Underwriter (at the expense of the
City for twenty-five (25) days from the date of Closing, and thereafter at the expense of the
Underwriter) a reasonable number of copies of an amendment of or supplement to the Official
Statement (in form and substance satisfactory to counsel for the Underwriter and counsel to the
City) which will amend or supplement the Official Statement so that it will not contain an untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances existing at the time the Official Statement is
delivered to a purchaser, not misleading. For purposes of this subsection, the City will furnish
such information with respect to itself as the Underwriter may from time to time reasonably
request.
The execution and delivery of this Purchase Contract by the City shall constitute a
representation by the City to the Underwriter that the representations, warranties and agreements
contained in this Section 2 are true as of the date hereof; provided that as to information
furnished by the City pursuant to this Purchase Contract or otherwise and in the Preliminary
Official Statement and in the Official Statement, the City is relying on such information in
making the City’s representations, warranties and agreements; and as to all matters of law, other
than federal tax and securities laws, the City is relying on the advice of counsel to the City; and
as to matters of federal tax law and securities laws, the City is relying on the advice of Bond
Counsel; and provided further that no member of the governing body or officer, employee or
agent of the City shall be individually liable for the breach of any representation, warranty or
agreement contained herein.
3. Conditions to the Obligations of the Underwriter.
The obligation of the Underwriter to accept delivery of and pay for the Bonds on
the Closing Date shall be subject, at the option of the Underwriter, (i) to the accuracy in all
material respects of the representations, warranties and agreements on the part of the City
contained herein as of the date hereof and as of the Closing Date, to the accuracy in all material
respects of the statements of the officers and other officials of the City made in any certificates
or other documents furnished pursuant to the provisions hereof, and to the performance by the
City of its obligations to be performed hereunder at or prior to the Closing Date; and (ii) to the
following additional conditions:
(a) At the time of Closing, the City Documents shall be in full force and effect as
valid, binding and enforceable agreements between or among the various parties thereto, and this
Purchase Contract and the remainder of the City Documents shall not have been amended,
modified or supplemented, except as described herein or as may otherwise have been agreed to
in writing by the Underwriter, and there shall have been taken in connection with the issuance of
the Bonds and with the transactions contemplated thereby and by this Purchase Contract, all such
actions as, in the opinion of Bond Counsel, shall be necessary and appropriate;
(b) As of the Closing Date, the Official Statement shall not have been amended,
modified or supplemented, except as may have been agreed to in writing by the Underwriter;
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(c) Between the date hereof and the Closing Date, none of the following shall have
occurred:
(1) legislation enacted in the Congress or in the legislature of the State of
California, or a decision rendered by a court established under Article III of the Constitution of
the United States or under the Constitution of the State of California, as the case may be, or by
the Tax Court of the United States, or an order, ruling, regulation (final or temporary) or official
or staff statement issued or made:
(A) by or on behalf of the Treasury Department of the United States or
the Internal Revenue Service, or any agency, commission or instrumentality of the State of
California, with the purpose or effect, directly or indirectly, of imposing federal income taxation
or State of California personal income taxation, respectively, upon the Special Tax Revenues (as
defined in the Fiscal Agent Agreement) as would be received by the City or the Fiscal Agent or
upon such interest as would be received by the holders of the Bonds or obligations of the general
character of the Bonds, or
(B) by or on behalf of the Securities and Exchange Commission, or
any other governmental agency having jurisdiction of the subject matter, to the effect that
obligations of the general character of the Bonds or the Bonds are not exempt from registration
under the Securities Act of 1933, as amended (the “Securities Act”), or that the Fiscal Agent
Agreement is not exempt from qualification under the Trust Indenture Act of 1939, as amended
(the “Trust Indenture Act”),
which, in either case, in the reasonable judgment of the Underwriter, would have a material and
adverse effect on the market price or marketability, at the initial offering prices set forth in the
Official Statement, of the Bonds;
(2) the declaration of war or the material outbreak or material escalation of
existing military hostilities involving the United States or the occurrence of any other national
emergency or calamity relating to the effective operation of the government of or the financial
community in the United States, which, in the reasonable judgment of the Underwriter, would
have a material and adverse effect on the market price or marketability, at the initial offering
prices set forth in the Official Statement, of the Bonds;
(3) the declaration of a general banking moratorium by federal, New York or
California authorities, or the general suspension of trading on any national securities exchange,
which, in the reasonable judgment of the Underwriter, would have a material and adverse effect
on the market price or marketability, at the initial offering prices set forth in the Official
Statement, of the Bonds;
(4) the imposition by the New York Stock Exchange or other national
securities exchange, or any governmental authority, of any material restrictions not now in force
with respect to the Bonds or obligations of the general character of the Bonds or securities
generally, or the material increase of any such restrictions now in force, including those relating
to the extension of credit by, or the charge to the net capital requirements of, underwriters;
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(5) an order, decree or injunction of any court of competent jurisdiction, or
order, ruling, regulation or official or staff statement by the Securities and Exchange
Commission, or any other governmental agency having jurisdiction of the subject matter, issued
or made to the effect that the issuance, offering or sale of obligations of the general character of
the Bonds, or the issuance, offering or sale of the Bonds, including any or all underlying
obligations, as contemplated hereby or by the Official Statement, is or would be in violation of
the federal securities laws as amended and then in effect;
(6) any event occurring, or information becoming known which, in the
reasonable judgment of the Underwriter, makes untrue in any material respect any statement or
information contained in the Official Statement, or has the effect that the Official Statement
contains any untrue statement of material fact or omits to state a material fact required to be
stated therein or necessary to make the statements or information therein, in the light of the
circumstances under which they were made, not misleading, and the City refuses to amend or
supplement the Official Statement to correct such statements or information;
(7) the entry of an order by a court of competent jurisdiction that enjoins or
restrains the City from issuing permits, licenses or entitlements within the District or which
order, in the reasonable opinion of the Underwriter, otherwise materially and adversely affects
proposed development of property within the District;
(8) any amendment to the federal or California Constitution or action by any
federal or California court, legislative body, regulatory body or other authority materially
adversely affecting the tax status of the City or the District, their property, income or securities
(or interest thereon), the validity or enforceability of the Special Tax as contemplated by the
Fiscal Agent Agreement, the City Documents, or the Official Statement; or
(9) any adverse event occurs with respect to the affairs of the City, the District
or the Fiscal Agent, which, in the reasonable judgment of the Underwriter, would have a material
and adverse effect on the market price or marketability, at the initial offering prices set forth in
the Official Statement, of the Bonds.
(d) At or prior to the Closing Date, the Underwriter shall have received the following
documents, in each case satisfactory in form and substance to the Underwriter:
(1) The City Documents, duly executed and delivered by the respective
parties thereto, with only such amendments, modifications or supplements as may have been
agreed to in writing by the Underwriter;
(2) The Official Statement, executed on behalf of the City by its City Manager
or another authorized official of the City;
(3) An approving opinion of Bond Counsel, dated the Closing Date and
addressed to the City, in substantially the form attached to the Official Statement as APPENDIX
F, together with a reliance letter addressed to the Underwriter;
(4) A supplemental opinion of Bond Counsel, dated the Closing Date and
addressed to the Underwriter and the City, to the effect that (i) the City Documents have been
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duly authorized, executed and delivered by the City, and, assuming such agreements constitute a
valid and binding obligation of the other respective parties thereto, constitute the legally valid
and binding agreements of the City for the District enforceable in accordance with their
respective terms, except as enforcement may be limited by bankruptcy, moratorium, insolvency
or other laws affecting creditor’s rights or remedies and may be subject to general principles of
equity (regardless of whether such enforceability is considered in equity or at law); (ii) the Bonds
are not subject to the registration requirements of the Securities Act of 1933, as amended, and the
Fiscal Agent Agreement is exempt from qualification under the Trust Indenture Act of 1939, as
amended; and (iii) the information contained in the Official Statement on the cover and under the
captions “INTRODUCTION,” “THE BONDS” (other than information relating to DTC and its
Book-Entry Only System), “SECURITY AND SOURCES OF PAYMENT FOR THE BONDS,”
“TAX MATTERS” and APPENDICES C and F thereof is accurate, insofar as such information
purports to summarize or replicate certain provisions of the Act, the Bonds and the Fiscal Agent
Agreement and the exclusion from gross income for federal income tax purposes and exemption
from State of California personal income taxes of interest on the Bonds;;
(5) An opinion of counsel to the City, dated the Closing Date and addressed to
the City and the Underwriter, to the effect that (i) to its current actual knowledge and except as
disclosed in the Official Statement, no action, suit, proceeding, inquiry or investigation, at law or
in equity, before or by any court, regulatory agency, public board or body is pending with respect
to which the City has been served with process or is known to such counsel to be threatened, as
to which the City is or would be a party, which would materially adversely affect the ability of
the City or the District to perform their obligations under the City Documents, or which seeks to
restrain or enjoin the issuance, sale and delivery of the Bonds or exclusion from gross income for
federal income tax purposes or State of California personal income taxes of interest on the
Bonds, or the application of the proceeds thereof in accordance with the Fiscal Agent
Agreement, or the collection or application of the Special Tax to pay the principal of and interest
on the Bonds, or which in any way contests or affects the validity or enforceability of the Bonds,
the City Documents or the accuracy of the Official Statement, or any action of the City
contemplated by any of said documents or the development of property within the District;
(ii) the City is duly organized and validly existing as a public entity under the laws of the State of
California and the District is duly organized and validly existing as a community facilities
district under the laws of the State of California, and the City has full legal right, power and
authority to issue the Bonds and to perform all of its obligations under the City Documents;
(iii) the City has obtained all approvals, consents, authorizations, elections and orders of or
filings or registrations with any California governmental authority, board, agency or commission
having jurisdiction that constitute a condition precedent to the levy of the Special Tax, the
issuance of the Bonds or the performance by the City of its obligations thereunder or under the
Fiscal Agent Agreement, except that no opinion need be expressed regarding compliance with
blue sky or other securities laws or regulations; (iv) the City Council has duly and validly
adopted the City Documents at meetings of the City Council which were called and held
pursuant to law and with all public notice required by law and at which a quorum was present
and acting throughout, and the City Documents are now in full force and effect and have not
been amended; and (v) the City has duly authorized, executed and delivered the City Documents
and has duly authorized the preparation and delivery of the Official Statement;
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(6) An opinion of Jones Hall, A Professional Law Corporation, as Disclosure
Counsel, dated the Closing Date and addressed to the City and Underwriter, to the effect that
nothing has come to such counsel’s attention that would lead them to believe that the Official
Statement, as of its date and as of the Closing Date (but excluding therefrom the appendices
thereto, financial statements and statistical data, and information regarding The Depository Trust
Company and its book-entry system, as to which no opinion need be expressed), contains an
untrue statement of a material fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not
misleading;
(7) An opinion of Rossi A. Russell, Esq., counsel to the Underwriter, dated
the Closing Date and addressed to the Underwriter, to the effect that (i) the Bonds are exempt
from the registration requirements of the Securities Act of 1933, as amended, and the Fiscal
Agent Agreement is exempt from qualification under the Trust Indenture Act of 1939, as
amended; and (ii) without having undertaken to determine independently the accuracy or
completeness of the statements contained in the Official Statement, but on the basis of his
participation in conferences with representatives of the City, Bond Counsel, Disclosure Counsel,
representatives of the Underwriter, and others, and his examination of certain documents,
nothing has come to his attention that has led him to believe that the Official Statement as of its
date and as of the Closing Date contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading (except that no opinion
or belief need to be expressed as to any information relating to The Depository Trust Company,
or any information relating to CUSIP numbers, or with respect to any financial or statistical data
or forecasts or estimates or assumptions or any expressions of opinion or appraised or assessed
valuations);
(8) A certificate of the City Manager, or such other authorized official of the
City as is acceptable to the Underwriter, dated the Closing Date, to the effect that:
(A) the representations and warranties made by the City herein are true
and correct as of the Closing Date with the same effect as if made on the Closing Date; and
(B) no event affecting the City has occurred since the date of the
Official Statement that either (i) makes untrue or incorrect in any material respect as of the
Closing Date any statement or information contained in the Official Statement concerning the
City, or (ii) is not reflected in the Official Statement but should be reflected therein in order to
make the statements and information therein concerning the City not misleading in any material
respect;
(9) A certified copy of the City Resolution authorizing the execution and
delivery of the Bonds, the Fiscal Agent Agreement, the Official Statement, the Continuing
Disclosure Agreement, and this Purchase Contract;
(10) A certificate of the City pursuant to Rule 15c2-12 relating to the
Preliminary Official Statement, in form and substance satisfactory to the Underwriter;
11
(11) A certificate of the Fiscal Agent and an opinion of counsel to the Fiscal
Agent, each dated the Closing Date and addressed to the City and the Underwriter, to the effect
that the Fiscal Agent has authorized the execution and delivery of the Fiscal Agent Agreement
and that the Fiscal Agent Agreement is a valid and binding obligation of the Fiscal Agent
enforceable in accordance with its terms;
(12) A certificate of Dublin Crossing, LLC, a Delaware limited liability
company (“Dublin Crossing” or “Developer”), Brookfield Bay Area Holdings LLC, a Delaware
limited liability company (“Brookfield BAH” or “Developer”), and CalAtlantic Group, Inc., a
Delaware corporation (“CalAtlantic” or “Developer”), with each certificate dated the date of the
Preliminary Official Statement and substantially in the form attached as Exhibits B, C, and D
hereto (each a “Developer Certificate”), or as any such certificate may be modified with the
approval of the Underwriter, and a closing certificate of each Developer dated the Closing Date
to the effect that the representations in its respective Developer Certificate are true and correct as
of the Closing Date (except that all references to the Preliminary Official Statement in each
Developer Certificate shall be deemed to be references to the final Official Statement);
(13) Separate continuing disclosure undertakings executed by each of
Brookfield BAH and CalAtlantic in the forms attached as APPENDIX G to the Official
Statement (each a “Developer Continuing Disclosure Undertakings”);
(14) An opinion letter from counsel to each Developer (which may be in-house
counsel), dated the Closing Date and addressed to the City and the Underwriter, substantially to
the effect that: (a) [for Brookfield BAH and CalAtlantic only], the Developer is duly formed,
validly existing and in good standing under the laws of the state of its formation and has full
power and authority to enter into its Developer Continuing Disclosure Undertakings; (b) [for
Brookfield BAH and CalAtlantic only], the Developer has duly and validly executed and
delivered its Developer Continuing Disclosure Undertakings, and its Developer Continuing
Disclosure Undertakings constitutes the legal, valid and binding obligations of such Developer,
enforceable against such Developer in accordance with its terms; and (c) [for each Developer
with respect to the Developer that it represents], without having undertaken to determine
independently the accuracy, completeness or fairness of the statements contained in the Official
Statement under the captions [for the Dublin Crossing Opinion] “THE DUBLIN CROSSING
PROJECT,” “IMPROVEMENT AREA NO. 1—Formation of the District,” “—Location and
Description of the Improvement Area No. 1 and the Immediate Area,” “—Improvement Area
No. 1 Ownership,” “—Tract Map Status,” “—The Merchant Builders,” “—Financing Plan –
Developer,” and “OWNERSHIP OF PROPERTY WITHIN IMPROVEMENT AREA NO. 1”
(other than under the caption “- CalAtlantic); [for the Brookfied BAH opinion]
“IMPROVEMENT AREA NO. 1—Improvement Area No. 1 Ownership,” “—The Development
Plan - Huntington Neighborhood,” “- Wilshire Neighborhood,” “- Fillmore Neighborhood,” “—
Financing Plan – Merchant Builders - Brookfield Merchant Builders Financing Plan,” and
“CONTINUING DISCLOSURE – Brookfield BAH”; [for the CalAtlantic opinion]
“IMPROVEMENT AREA NO. 1 – Improvement Area No. 1 Ownership,” “—The Development
Plan – Madison Neighborhood,” – “Union Neighborhood,” “ – Sunset Neighborhood,” “—
Financing Plan – Merchant Builders – CalAtlantic’s Financing Plan,” “OWNERSHIP OF
PROPERTY WITHIN IMPROVEMENT AREA NO. 1 – The Developer – CalAtlantic,” and
“CONTINUING DISCLOSURE – CalAtlantic” (except that no opinion or belief need be
12
expressed as to any information relating to The Depository Trust Company, or any information
relating to CUSIP numbers, or with respect to any financial statements and other financial,
statistical, economic, demographic or engineering data or forecasts, numbers, charts, tables,
graphs, estimates, projections, assumptions or expressions of opinion, or any information about
valuation, appraisals, market absorption, archaeological, or environmental matters, or to any
information which is attributable to a source other than the applicable Developer contained in the
Official Statement), no facts came to their attention during the course of their representation of
the applicable Developer that would lead them to believe that the information under said captions
of the Official Statement relating to the applicable Developer and the applicable Developer’s
organization and property and its proposed development of the applicable Developer’s property
within the District, contains any untrue statement of a material fact or omits any material fact
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading;
(15) A certificate from Seevers Jordan Ziegenmeyer (the “Appraiser”)
consenting to the inclusion of their appraisal report (the “Appraisal”) in the Preliminary Official
Statement and the final Official Statement and certifying that (i) the information in the Official
Statement relating to the Appraisal does not contain an untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (ii) since the date of the
Appraisal they are not aware of any facts that would materially affect the conclusions of value
set forth therein;
(16) One or more certificates dated the Closing Date from Goodwin Consulting
Group, Inc. (the “Special Tax Consultant”) addressed to the City and the Underwriter to the
effect that [(i) the amount of the Special Taxes that could be levied in each Fiscal Year on all
Parcels (as defined in the Rate and Method of Apportionment of Special Tax for the District) of
Taxable Property in the District less Administrative Expenses (as defined in the Rate and Method
of Apportionment of Special Tax for the District) of 1%, is at least one hundred ten percent
(110%) of the total Annual Debt Service for each such Fiscal Year on the Bonds], and (ii) all
information supplied by the Special Tax Consultant for use in the Official Statement is true and
correct as of the date of the Official Statement and as of the Closing Date;
(17) A certificate of Fieldman, Rolapp & Associates, as municipal advisor to
the City (the “Municipal Advisor”), dated as of the Closing Date, in form and substance
satisfactory to Disclosure Counsel, Bond Counsel and the Underwriter; and
(18) Such additional legal opinions, certificates, proceedings, instruments and
other documents as the Underwriter or Bond Counsel may reasonably request to evidence
compliance by the City with legal requirements, the truth and accuracy, as of the Closing Date,
of the representations of the City contained herein, and the due performance or satisfaction by
the City at or prior to such time of all agreements then to be performed and all conditions then to
be satisfied by the City.
13
4. Conditions to the Obligations of the City.
The obligations of the City to issue and deliver the Bonds on the Closing Date
shall be subject, at the option of the City, to the performance by the Underwriter of its
obligations to be performed hereunder at or prior to the Closing Date and to the following
additional conditions:
(a) The Fiscal Agent Agreement, the Continuing Disclosure Agreement, and this
Purchase Contract, respectively, shall have been executed by the other parties thereto; and
(b) No order, decree, injunction, ruling or regulation of any court, regulatory agency,
public board or body shall have been issued, nor shall any legislation have been enacted, with the
purpose or effect, directly or indirectly, of prohibiting the offering, sale or issuance of the Bonds
as contemplated hereby or by the Official Statement;
5. Expenses.
All reasonable expenses, fees and costs of the City incident to the performance of
its obligations in connection with the authorization, issuance and sale of the Bonds to the
Underwriter, including printing costs of outside printing companies incurred in connection with
printing the Bonds and preparing the Official Statement, fees and expenses of consultants, fees
and expenses of counsel for the City, if any, fees and expenses of the Fiscal Agent and of the
Fiscal Agent’s counsel (if any), fees of DTC, fees and expenses of rating agencies, insurance
policy premiums, if any, any out-of-pocket disbursements of the City, and fees and expenses of
Bond Counsel, Disclosure Counsel, and Underwriter’s counsel shall be paid by the City. All fees
and expenses to be paid by the City pursuant to this Purchase Contract may be paid from Bond
proceeds to the extent permitted under federal tax law. All expenses of selling the Bonds, all
out-of-pocket expenses of the Underwriter, including travel and other expenses, CUSIP Service
Bureau charges, California Debt and Investment Advisory Commission fees, and blue sky fees, if
any, shall be paid by the Underwriter.
6. Termination.
This Purchase Contract may be terminated by the Underwriter if any of the
conditions specified in Section 3 hereof shall not have been fulfilled by the Closing, upon written
notice of such termination to the City. This Purchase Contract may be terminated by the City if
any of the conditions specified in Section 4 hereof shall not have been fulfilled by the Closing,
upon written notice of such termination to the Underwriter.
Any notice of termination pursuant to this Section 6 shall be given in the manner
provided in Section 7 hereof. If this Purchase Contract shall be terminated as provided in the
first paragraph of this Section 6, such termination shall be without liability of the City or the
Underwriter, except as to the expenses in Section 5 above.
7. Notices.
Any notice or other communication to be given to the City under this Purchase
Contract may be given by delivering the same in writing at the address of the City set forth
14
above; any notice or other communication to be given to the Underwriter may be given by
delivering the same to Prager & Co., LLC, One Maritime Plaza, Suite 1000, San Francisco,
California 94111.
8. Governing Law.
The laws of the State of California govern all matters arising out of or relating to
this Purchase Contract, including, without limitation, its validity, interpretation, construction,
performance, and enforcement.
9. Arms-Length Transaction.
The City and the Underwriter acknowledge and agree that (i) the purchase and
sale of the Bonds pursuant to this Purchase Contract is an arm’s-length, commercial transaction
between the City and the Underwriter in which the Underwriter is acting solely as a principal and
is not acting as an agent, advisor or fiduciary of the City, (ii) the Underwriter has not assumed
any advisory or fiduciary responsibility to the City with respect to this Purchase Contract, the
offering of the Bonds and the discussions, undertakings and procedures leading thereto
(irrespective of whether the Underwriter, or any affiliate of the Underwriter, has provided other
services or is currently providing other services to the City on other matters), (iii) the only
contractual obligations the Underwriter has to the City with respect to the transactions
contemplated hereby are those set forth in this Purchase Contract, (iv) the Underwriter has
financial and other interests that differ from those of the City, and (v) the City has consulted with
its own legal, accounting, tax, financial and other advisors, as applicable, to the extent they have
deemed appropriate. Nothing in the foregoing paragraph is intended to limit the Underwriter’s
obligations of fair dealing under MSRB Rule G-17.
10. Miscellaneous.
This Purchase Contract is made solely for the benefit of the City and the
Underwriter, and no other person shall acquire or have any right hereunder or by virtue hereof
except as expressly provided herein. All representations, warranties and agreements of the City
in this Purchase Contract shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Underwriter and shall survive the delivery of and
payment for the Bonds. This Purchase Contract may be executed in several counterparts, each of
which shall be regarded as an original and all of which shall constitute one and the same
agreement.
[The Remainder of this Page is Intentionally Left Blank.]
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Underwriter the enclosed duplicate hereof whereupon it will become
a binding agreement among the City and the Underwriter.
PRAGER & CO., LLC
as Underwriter
By:
Authorized Officer
Accepted and Agreed to:
CITY OF DUBLIN, on behalf of the City of Dublin
Community Facilities District No. 2015-1 (Dublin Crossing)
By:
City Manager
A-1
EXHIBIT A
Maturity Schedule* $_____________
City of Dublin Improvement Area No. 1
Community Facilities District No. 2015-1 (Dublin Crossing)
Special Tax Bonds, Series 2017
MATURITY DATES, PRINCIPAL AMOUNTS, INTEREST RATES
AND YIELDS FOR THE BONDS
Serial Bonds
Maturity Principal Interest
(September 1) Amount Rate Yield
2019 $
2020
2021
2022
2023
2024
2025
2026
2027
$___________ _____% Term Bond due __________, 203_ to Yield _____%
$__________ _____% Term Bond due __________, 204_ to Yield _____%
___________________________
* Yield to September 1, 202_ par call.
REDEMPTION PROVISIONS FOR THE BONDS
(i) Optional Redemption. The Bonds maturing on or after September 1, 20__ are
subject to redemption prior to their stated maturities, on any date on and after September 1, 20__,
in whole or in part, at a redemption price equal to the principal amount of the Bonds to be
redeemed, together with accrued interest thereon to the date fixed for redemption, without
premium.
(ii) Mandatory Partial Redemption. The Term Bonds maturing on September 1,
20__ are subject to mandatory partial redemption in part by lot, from payments made by the City
from the Bond Fund, at a redemption price equal to the principal amount thereof to be redeemed,
together with accrued interest to the redemption date, without premium, in the aggregate
respective principal amounts all as set forth in the following table:
Mandatory Partial
Redemption Date
(September 1)
Principal Amount
Subject to Redemption
20__ $
20__
A-2
20__
20__
20__
20__
20__
20__
20__
20__ (Maturity)
The Term Bonds maturing on September 1, 20__ are subject to mandatory partial
redemption in part by lot, from payments made by the City from the Bond Fund, at a redemption
price equal to the principal amount thereof to be redeemed, together with accrued interest to the
redemption date, without premium, in the aggregate respective principal amounts all as set forth
in the following table:
Mandatory Partial
Redemption Date
(September 1)
Principal Amount
Subject to Redemption
20__ $
20__
20__
20__
20__
20__
20__
20__
20__
20__ (Maturity)
Provided, however, if some but not all of the Term Bonds have been redeemed under
subsection (i) above or subsection (iii) below, the total amount of all future Mandatory Partial
Redemptions shall be reduced by the aggregate principal amount of Term Bonds so redeemed, to
be allocated among such Mandatory Partial Redemption Dates on a pro rata basis in integral
multiples of $5,000 as determined by the Fiscal Agent, notice of which determination (which
shall consist of a revised mandatory partial redemption schedule) shall be given by the City to
the Fiscal Agent.
(iii) Redemption from Special Tax Prepayments. Special Tax Prepayments and any
corresponding transfers from the Reserve Fund pursuant to the Fiscal Agent Agreement shall be
used to redeem Bonds on the next Interest Payment Date for which notice of redemption can
timely be given under the Fiscal Agent Agreement, among maturities so as to maintain
substantially the same debt service profile for the 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 Date Redemption Price
Any Interest Payment Date on or before March 1, 20__ 103%
A-3
On September 1, 20__ and March 1, 20__ 102%
On September 1, 20__ and March 1, 20__ 101%
On September 1, 20__ and any Interest Payment Date thereafter 100%
B-1
EXHIBIT B
CITY OF DUBLIN
IMPROVEMENT AREA NO. 1
COMMUNITY FACILITIES DISTRICT NO. 2015-1 (DUBLIN CROSSING)
SPECIAL TAX BONDS, SERIES 2017
CERTIFICATE OF DUBLIN CROSSING, LLC
Dated: ___________
In connection with the issuance and sale of the above-captioned bonds (the “Bonds”),
and pursuant to the Purchase Contract (the “Purchase Contract”) to be executed by and
between City of Dublin (the “City”), for and on behalf of the City of Dublin Community
Facilities District No. 2015-1 (Dublin Crossing) (the “District”), and Prager & Co., LLC (the
“Underwriter”), the undersigned certify that they are familiar with the facts herein certified and
are authorized and qualified to certify the same as authorized officers or representatives of
Dublin Crossing, LLC, a Delaware limited liability company (the “Developer”), and the
undersigned, on behalf of the Developer, further certify, represent, warrant, and covenant to the
City, the District and the Underwriter as of the date hereof that:
1. The Developer is duly organized and validly existing under the laws of the State
of Delaware, is qualified to transact business in the State of California, and has all requisite right,
power, and authority to execute and deliver this Certificate of Dublin Crossing, LLC (the
“Certificate”).
2. As set forth in the Preliminary Official Statement, certain property within
Improvement Area No. 1 of the District is held in the name of the Developer (herein the
“Property”). The Developer makes the representations herein with respect to all such Property.
3. Except as disclosed in the Preliminary Official Statement, to the Actual
Knowledge of the Undersigned,1 the Developer and its Affiliates2 have not violated any
1 As used in this Certificate, the phrase “Actual Knowledge of the Undersigned” means the knowledge that the individual(s)
signing on behalf of the Developer currently has as of the date of this Certificate or has obtained through (i) interviews with such
current officers and responsible employees of the Developer and its Affiliates as the undersigned has determined are reasonab ly
likely, in the ordinary course of their respective duties, to have knowledge of the matters set forth in this Certificate, and/or (ii)
review of documents that were reasonably available to the undersigned and which the undersigned has reasonably deemed
necessary for the undersigned to obtain knowledge of the matters set forth in this Certificate. The undersigned has not conducted
any extraordinary inspection or inquiry other than such inspections or inquiries as are prudent and customary in connection w ith
the ordinary course of the Developer’s current business and operations. Individuals who are no longer employees of the
Developer and its Affiliates have not been contacted.
2 “Affiliate” means, with respect to the Developer any other Person (i) who directly, or indirectly through one or more
intermediaries, is currently controlling, controlled by or under common control with the Developer, and (ii) for whom
information, including financial information or operating data, concerning such Person is material to an evaluation of the District
and the Bonds (i.e., information relevant to (a) the Developer’s development plans with respect to its Property and the payme nt of
its Special Taxes on the Property (to the extent the responsibility of the Developer) prior to delinquency, or (b) such Person’s
assets or funds that would materially affect the Developer’s ability to develop its Property as described in the Preliminary Official
Statement or to pay its Special Taxes on the Property (to the extent the responsibility of the Developer) prior to delinquency).
Notwithstanding the foregoing, the following entities shall not be considered Affiliates of the Developer: CalAtlantic Group ,
B-2
applicable law or administrative regulation of the State of California or the United States of
America, or any agency or instrumentality of either, which violation could reasonably be
expected to materially and adversely affect the Developer’s ability to pay Special Taxes due with
respect to the Property (to the extent the responsibility of the Developer) prior to delinquency.
4. Except as disclosed in the Preliminary Official Statement, to the Actual
Knowledge of the Undersigned, (a) the Developer and its Affiliates are not in breach of or in
default under any applicable judgment or decree or any loan agreement, option agreement,
development agreement, indenture, bond or note (collectively, the “Material Agreements”) to
which the Developer or its Affiliates are a party or otherwise subject, which breach or default
could reasonably be expected to materially and adversely affect the Developer’s ability to
complete the development of the Property as described in the Preliminary Official Statement or
to pay the Special Taxes due with respect to the Property (to the extent the responsibility of the
Developer) prior to delinquency and (b) no event has occurred and is continuing that with the
passage of time or giving of notice, or both, would constitute such a breach or default.
5. Except as described in the Preliminary Official Statement, there is no material
indebtedness of the Developer or its Affiliates that is secured by an interest in the Property. To
the Actual Knowledge of the Undersigned, neither the Developer nor any of its Affiliates is in
default on any obligation to repay borrowed money, which default is reasonably likely to
materially and adversely affect the Developer’s ability to complete the development of the
Property as described in the Preliminary Official Statement or to pay its Special Taxes due with
respect to the Property (to the extent the responsibility of the Developer) prior to delinquency.
6. Except as set forth in the Preliminary Official Statement, no action, suit,
proceeding, inquiry or investigation at law or in equity, before or by any court, regulatory
agency, public board or body is pending against the Developer (with proper service of process to
the Developer having been accomplished) or, to the Actual Knowledge of the Undersigned, is
pending against any current Affiliate (with proper service of process to such Affiliate having
been accomplished) or, to the Actual Knowledge of the Undersigned, is threatened in writing
against the Developer or any such Affiliate which if successful, is reasonably likely to materially
and adversely affect the Developer’s ability to complete the development of the Property as
described in the Preliminary Official Statement or to pay the Special Tax or ad valorem tax
obligations on its Property (to the extent the responsibility of the Developer) prior to
delinquency.
7. As of the date thereof, the Preliminary Official Statement, to the Actual
Knowledge of the Undersigned, solely with respect to information contained therein with respect
to the Developer, its Affiliates, ownership of the Property, the Developer’s development plan,
the Developer’s financing plan, the Developer’s lenders, if any, and contractual arrangements of
the Developer or any Affiliates as set forth under the captions “THE DUBLIN CROSSING
Inc.; Brookfield Bay Area Holdings, LLC; Brookfield Wilshire LLC; or Brookfield Fillmore LLC. “Person” means an
individual, a corporation, a partnership, a limited liability company, an association, a joint stock company, a trust, any
unincorporated organization or a government or political subdivision thereof. For purposes hereof, the term “control” (including
the terms “controlling,” “controlled by” or “under common control with”) means the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
B-3
PROJECT,” “IMPROVEMENT AREA NO. 1 – Formation of the District,” “—Location and
Description of the Improvement Area No. 1 and the Immediate Area,” “—Improvement Area
No. 1 Ownership,” “—Tract Map Status,” “—The Merchant Builders,” “—Financing Plan –
Developer,” and “OWNERSHIP OF PROPERTY WITHIN IMPROVEMENT AREA NO. 1”
(other than under the caption “—CalAtlantic) (but in all cases under all captions excluding
therefrom (i) information regarding the Appraisal, market value ratios, and annual special tax
ratios), and (ii) information which is identified as having been provided by a source other than
the Developer), is true and correct in all material respects and did not contain any untrue
statement of a material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading.
8. The Developer covenants that, while the Bonds or any refunding obligations
related thereto are outstanding, the Developer and its Affiliates that it controls will not bring any
action, suit, proceeding, inquiry or investigation at law or in equity, before any court, regulatory
agency, public board or body, that in any way seeks to challenge or overturn the formation of the
District, to challenge the adoption of the ordinance of the City levying Special Taxes within the
District, to invalidate the District or any of the Bonds or any refunding bonds related thereto, or
to invalidate the special tax liens imposed under Section 3115.5 of the Streets and Highways
Code. The foregoing covenant shall not prevent the Developer in any way from bringing any
action, suit, proceeding, inquiry or investigation at law or in equity, before any court, regulatory
agency, public board or body, including, without limitation, (a) contending that the Special Tax
has not been levied in accordance with the methodologies contained in the Rate and Method of
Apportionment of Special Taxes for Improvement Area No. 1 pursuant to which the Special
Taxes are levied, (b) with respect to the application or use of the Special Taxes levied and
collected, or (c) to enforce the obligations of the City and/or the District under the City
Documents, or any other agreements among the Developer and its Affiliates, the City, and/or the
District or to which the Developer or its Affiliates is a beneficiary.
9. Except as disclosed in the Preliminary Official Statement, to the Actual
Knowledge of the Undersigned, the Developer is not aware that any other public debt secured by
a tax or assessment on the Property exists or is in the process of bein g authorized or any
assessment districts or community facilities districts have been or are in the process of being
formed that include any portion of the Property.
10. The Developer has been developing or has been involved in the development of
numerous projects over an extended period of time. It is likely that the Developer and some of
its Affiliates have been delinquent at one time or another in the payment of ad valorem property
taxes, special assessments or special taxes. To the Actual Knowledge of the Undersigned, in the
last five years, neither the Developer nor any Affiliate has been delinquent to any material extent
in the payment of any ad valorem property tax, special assessment or special tax on property
owned by the Developer or any current Affiliate during the period of its ownership included
within the boundaries of a community facilities district or an assessment district within
California that (a) caused a draw on a reserve fund relating to such assessment district or
community facilities district financing or (b) resulted in a judicial foreclosure action being
commenced against the Developer or any such Affiliate.
B-4
11. The Developer consents to the issuance of the Bonds. The Developer
acknowledges and agrees that the proceeds of the Bonds will be used as described in the
Preliminary Official Statement.
12. The Developer intends to comply with the provision of the Mello-Roos
Community Facilities District Act of 1982, as amended, relating to the Notice of Special Tax
described in Government Code Section 53341.5 in connection with the sale of the Property, or
portions thereof.
13. To the Actual Knowledge of the Undersigned, the Developer is able to pay its
bills as they become due and no legal proceedings are pending against the Developer (with
proper service of process to the Developer having been accomplished) or, to the Actual
Knowledge of the Undersigned, threatened in writing in which the Developer may be adjudicated
as bankrupt or discharged from any and all of its debts or obligations, or granted an extension of
time to pay its debts or obligations, or be allowed to reorganize or readjust its debts, or be subject
to control or supervision of the Federal Deposit Insurance Corporation.
14. To the Actual Knowledge of the Undersigned, Affiliates of the Developer are able
to pay their bills as they become due and no legal proceedings are pending against any Affiliates
of the Developer (with proper service of process to such Affiliate having been accomplished) or
to the Actual Knowledge of the Undersigned, threatened in writing in which the Affiliates of the
Developer may be adjudicated as bankrupt or discharged from any or all of their debts or
obligations, or granted an extension of time to pay their debts or obligations, or be allowed to
reorganize or readjust their debts or obligations, or be subject to control or supervision of the
Federal Deposit Insurance Corporation.
15. Based upon its current development plans, including, without limitation, its
current budget and subject to economic conditions and risks generally inherent in the
development of real property, including, but not limited to, the risks described in the Preliminary
Official Statement under the section entitled “SPECIAL RISK FACTORS,” and except as
disclosed in the Preliminary Official Statement including in the sections entitled “THE DUBLIN
CROSSING PROJECT,” “IMPROVEMENT AREA NO. 1 – Formation of the District,” “—
Location and Description of the Improvement Area No. 1 and the Immediate Area,” “—
Improvement Area No. 1 Ownership,” “—Tract Map Status,” “—The Merchant Builders,” “—
Financing Plan – Developer,” and “OWNERSHIP OF PROPERTY WITHIN IMPROVEMENT
AREA NO. 1” (other than under the caption “—CalAtlantic), the Developer anticipates that it
will have sufficient funds to complete the development of the Property as described in the
Preliminary Official Statement and to pay Special Taxes levied against the Property (to the
extent the responsibility of the Developer) prior to delinquency and does not anticipate that the
City or the District will be required to resort to a draw on the Reserve Fund for payment of
principal of or interest on the Bonds due to the Developer’s nonpayment of Special Taxes. The
Developer reserves the right to change its development plan and financing plan for the Property
at any time without notice.
16. Solely as to the limited information described in the sections of the Preliminary
Official Statement indicated in Paragraph 8 above (and subject to all limitations set forth in
Paragraph 8), the Developer agrees to indemnify and hold harmless, to the extent permitted by
B-5
law, the City, the District, the Underwriter, and their officials and employees, and each Person, if
any, who controls any of the foregoing within the meaning of Section 15 of the Securities Act of
1933, as amended, or of Section 20 of the Securities Exchange Act of 1934, as amended (each an
“Indemnified Party”), against any and all losses, claims, damages or liabilities, joint or several,
to which such Indemnified Party may become subject under any statute or at law or in equity or
otherwise and shall reimburse any such Indemnified Party for any reasonable legal or other
expense reasonably incurred by it in connection with investigating any such claim against it and
defending any such action, only to the extent that such losses, claims, damages, liabilities or
actions arise from any untrue statement by the Developer of a materia l fact contained in the
above referenced information in the Preliminary Official Statement, as of its date, or the
omission by the Developer to state in the Preliminary Official Statement, as of its date, a material
fact necessary to make the statements made by the Developer contained therein, in light of the
circumstances under which they were made not misleading. This indemnity provision shall not
be construed as a limitation on any other liability which the Developer may otherwise have to
any Indemnified Party, provided that in no event shall the Developer be obligated for double
indemnification, or for the negligence or willful misconduct of an Indemnified Party.
If any suit, action, proceeding (including any governmental or regulatory investigation),
claim or demand shall be brought or asserted against any Indemnified Party in respect of which
indemnification may be sought pursuant to the above paragraph, such Indemnified Party shall
promptly notify the Developer in writing; provided that the failure to notify the Developer shall
not relieve it from any liability that it may have hereunder except to the extent that it has been
materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure;
and provided, further, that the failure to notify the Developer shall not relieve it from any
liability that it may have to an Indemnified Party otherwise than under the above paragraph. If
any such proceeding shall be brought or asserted against an Indemnified Party and it shall have
notified the Developer thereof, the Developer shall retain counsel reasonably satisfactory to the
Indemnified Party (who shall not, without the consent of the Indemnified Party, be counsel to the
Developer) to represent the Indemnified Party in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding, as incurred. In any such proceeding, any
Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Party unless (i) the Developer and the
Indemnified Party shall have mutually agreed to the contrary; (ii) the Developer has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified Party; (iii) the
Indemnified Party shall have reasonably concluded that there may be legal defenses available to
it that are different from or in addition to those available to the Developer; or (iv) the named
parties in any such proceeding (including any impleaded parties) include both the Developer and
the Indemnified Party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interest between them. It is understood and
agreed that the Developer shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Indemnified Parties, and that all such fees and expenses, to
the extent reasonable, shall be paid or reimbursed as they are incurred. Any such separate firm
shall be designated in writing by such Indemnified Parties. The Developer shall not be liable for
any settlement of any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Developer agrees to indemnif y each
Indemnified Party from and against any loss or liability by reason of such settlement or
B-6
judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall
have requested that the Developer reimburse the Indemnified Party for fees and expenses of
counsel as contemplated by this paragraph, the Developer shall be liable for any settlement of
any proceeding effected without its written consent if (i) such settlement is entered into more
than 60 days after receipt by the Developer of such request and (ii) the Developer shall not have
reimbursed the Indemnified Party in accordance with such request prior to the date of such
settlement (provided that the foregoing shall not be applicable to any failure to reimburse if the
Developer is disputing such payment in good faith and shall have paid any amounts not in
dispute). The Developer shall not, without the written consent of the Indemnified Party, effect
any settlement of any pending or threatened proceeding in respect of which any Indemnified
Party is or could have been a party and indemnification could have been sought hereunder by
such Indemnified Party, unless such settlement (x) includes an unconditional release of such
Indemnified Party, in form and substance reasonably satisfactory to such Indemnified Party,
from all liability on claims that are the subject matter of such proceeding and (y) does not
include any statement as to or any admission of fault, culpability or a failure to act by or on
behalf of any Indemnified Party.
17. If between the date hereof and the Closing Date any event relating to or affecting
the Developer, its Affiliates, ownership of the Property, the Developer’s development plan, the
Developer’s financing plan, the Developer’s lenders, if any, and contractual arrangements of the
Developer or any Affiliates shall occur of which the undersigned has actual knowledge and
which the undersigned believes would cause the information under the sections of the
Preliminary Official Statement indicated in Paragraph 8 hereof, to contain an untrue statement of
a material fact or to omit to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, the undersigned shall
notify the City and the Underwriter and if in the opinion of counsel to the City or the
Underwriter such event requires the preparation and publication of a supplement or amendment
to the Preliminary Official Statement, the Developer shall reasonably cooperate with the City in
the preparation of an amendment or supplement to the Preliminary Official Statement in form
and substance reasonably satisfactory to counsel to the City and to the Underwriter.
18. For the period through 25 days after the “end of the underwriting period” as
defined in the Purchase Contract, if any event relating to or affecting the Developer, its
Affiliates, ownership of the Property, the Developer’s development plan, the Developer’s
financing plan, the Developer’s lenders, if any, and contractual arrangements of the Developer or
any Affiliates (including, if material to the Developer’s development plan or the Developer’s
financing plan, other loans of such Affiliates) shall occur as a result of which it is necessary, in
the opinion of the Underwriter or counsel to the City, to amend or supplement the Official
Statement in order to make the Official Statement not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, the Developer shall reasonably
cooperate with the City and the Underwriter in the preparation of an amendment or supplement
to the Official Statement in form and substance reasonably satisfactory to the Underwriter and
Disclosure Counsel which will amend or supplement the Official Statement so that it will not
contain an untrue statement of a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances existing at the time the Official
Statement is delivered to a purchaser, not misleading.
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19. On behalf of the Developer, the undersigned have reviewed the contents of this
Certificate and have met with counsel to the Developer for the purpose of discussing the
meaning of its contents.
The undersigned have executed this Certificate solely in their capacity as
authorized representatives of Developer and they will have no personal liability arising from or
relating to this Certificate. Any liability arising from or relating to this Certificate may only be
asserted against the Developer.
DUBLIN CROSSING, LLC,
a Delaware limited liability company
By: BrookCal Dublin LLC,
a Delaware limited liability company
Its: Member
By: __________________________
Name: ________________________
Title: _________________________
By: __________________________
Name: ________________________
Title: _________________________
By: SPIC Dublin LLC,
a Delaware limited liability company
Its: Member
By: Standard Pacific Investment Corp.,
a Delaware corporation
Its: Member
By: _______________________
Name: _____________________
Title: ______________________
By: _______________________
Name: _____________________
Title: ______________________
C-1
EXHIBIT C
CITY OF DUBLIN
IMPROVEMENT AREA NO. 1
COMMUNITY FACILITIES DISTRICT NO. 2015-1 (DUBLIN CROSSING)
SPECIAL TAX BONDS, SERIES 2017
CERTIFICATE OF BROOKFIELD BAY AREA HOLDINGS LLC
Dated: ___________, 2017
In connection with the issuance and sale of the above-captioned bonds (the “Bonds”),
and pursuant to the Purchase Contract (the “Purchase Contract”) to be executed by and
between City of Dublin (the “City”), for and on behalf of the City of Dublin Community
Facilities District No. 2015-1 (Dublin Crossing) (the “District”), and Prager & Co., LLC (the
“Underwriter”), the undersigned certify that they are familiar with the facts herein certified and
are authorized and qualified to certify the same as authorized officers or representatives of
Brookfield Bay Area Holdings LLC, a Delaware limited liability company (the “Developer”),
and the undersigned, on behalf of the Developer, further certify, represent, warrant, and covenant
to the City, the District and the Underwriter as of the date hereof that:
1. The Developer is duly organized and validly existing under the laws of the State
of Delaware, is qualified to transact business in the State of California, and has all requisite right,
power, and authority to execute and deliver this Certificate of Brookfield Bay Area Holdings
LLC (the “Certificate”) and the Continuing Disclosure Undertakings to be executed by the
Developer (the “Continuing Disclosure Undertakings”).
2. The Developer makes the representations in this Certificate with respect to (i)
certain property within Improvement Area No. 1 of the District held in the name of the
Developer, as described in the Preliminary Official Statement, and (ii) certain property within
Improvement Area No. 1 of the District held in the name of Brookfield Wilshire LLC an d
Brookfield Fillmore LLC, as described in the Preliminary Official Statement (the property
described in (i) and (ii) shall be collectively referred to herein as the “Property”). Except as
otherwise described in the Preliminary Official Statement, each of the Developer, Brookfield
Wilshire LLC, and Brookfield Fillmore LLC (collectively, the “Brookfield Entities”) is and, as
of the date of this Certificate, expects to remain, the party responsible for the construction and
sale of homes within its respective portion of the Property.
3. The Developer has duly authorized the execution and delivery at the Closing of
the Continuing Disclosure Undertakings.
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4. Except as disclosed in the Preliminary Official Statement, to the Actual
Knowledge of the Undersigned,1 the Brookfield Entities and their Affiliates2 have not violated
any applicable law or administrative regulation of the State of California or the United States of
America, or any agency or instrumentality of either, which violation could reasonably be
expected to materially and adversely affect the Brookfield Entities’ ability to pay Special Taxes
due with respect to their respective portions of the Property (to the extent the responsibility of the
Brookfield Entities) prior to delinquency.
5. Except as disclosed in the Preliminary Official Statement, to the Actual
Knowledge of the Undersigned, (a) the Brookfield Entities and their Affiliates are not in breach
of or in default under any applicable judgment or decree or any loan agreement, option
agreement, development agreement, indenture, bond or note (collectively, the “Material
Agreements”) to which the Brookfield Entities and their Affiliates are a party or otherwise
subject, which breach or default could reasonably be expected to materially and adversel y affect
the Brookfield Entities’ ability to complete the development of their respective portion of the
Property as described in the Preliminary Official Statement or to pay the Special Taxes due with
respect to their portion of the Property (to the extent the responsibility of the Brookfield Entities)
prior to delinquency and (b) no event has occurred and is continuing that with the passage of
time or giving of notice, or both, would constitute such a breach or default.
6. Except as described in the Preliminary Official Statement, there is no material
indebtedness of the Brookfield Entities and their Affiliates that is secured by an interest in the
Property. To the Actual Knowledge of the Undersigned, neither the Brookfield Entities nor any
of their Affiliates is in default on any obligation to repay borrowed money, which default is
reasonably likely to materially and adversely affect the Brookfield Entities ability to complete
the development of their respective portion of the Property as described in the Preliminary
1 As used in this Certificate, the phrase “Actual Knowledge of the Undersigned” means the knowledge that the individual(s)
signing on behalf of the Developer currently has as of the date of this Certificate or has obtained through (i) interviews with such
current officers and responsible employees of the Brookfield Entities and their Affiliates as the undersigned has determined are
reasonably likely, in the ordinary course of their respective duties, to have knowledge of the matters set forth in this Certificate,
and/or (ii) review of documents that were reasonably available to the undersigned and which the undersigned has reasonably
deemed necessary for the undersigned to obtain knowledge of the matters set forth in this Certificate. The undersigned has not
conducted any extraordinary inspection or inquiry other than such inspections or inquiries as are prudent and customary in
connection with the ordinary course of the Developer’s current business and operations. Individuals who are no longer
employees of the Brookfield Entities and their Affiliates have not been contacted.
2 “Affiliate” means, with respect to the Developer any other Person (i) who directly, or indirectly through one or more
intermediaries, is currently controlling, controlled by or under common control with the Developer, and (ii) for whom
information, including financial information or operating data, concerning such Person is material to an evaluation of the Di strict
and the Bonds (i.e., information relevant to (a) the Developer’s development plans with respect to its Property and the payment of
its Special Taxes on the Property (to the extent the responsibility of the Developer) prior to delinquency, or (b) such Perso n’s
assets or funds that would materially affect the Developer’s ability to develop its Property as described in the Preliminary Official
Statement or to pay its Special Taxes on the Property (to the extent the responsibility of the Developer) prior to delinquenc y).
Notwithstanding the foregoing, the following entities shall not be considered Affiliates of the Brookfield Entities: Dublin
Crossing, LLC; CalAtlantic Group, Inc.; SPIC Dublin LLC; or Standard Pacific Investment Corp. “Person” means an individual,
a corporation, a partnership, a limited liability company, an association, a joint stock company, a trust, any unincorporated
organization or a government or political subdivision thereof. For purposes hereof, the term “control” (including the terms
“controlling,” “controlled by” or “under common control with”) means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
C-3
Official Statement or to pay the Special Taxes due with respect to their portion of the Property
(to the extent the responsibility of the Brookfield Entities) prior to delinquency.
7. Except as set forth in the Preliminary Official Statement, no action, suit,
proceeding, inquiry or investigation at law or in equity, before or by any court, regulatory
agency, public board or body is pending against the Brookfield Entities (with proper service of
process to the Brookfield Entities having been accomplished) or, to the Actual Knowledge of the
Undersigned, is pending against any current Affiliate (with proper service of process to such
Affiliate having been accomplished) or, to the Actual Knowledge of the Undersigned, is
threatened in writing against the Brookfield Entities or any such Affiliate which if successful, is
reasonably likely to materially and adversely affect the Brookfield Entities’ ability to complete
the development of their respective portion of the Property as described in the Prelimi nary
Official Statement or to pay the Special Tax or ad valorem tax obligations on their respective
portion of the Property (to the extent the responsibility of the Brookfield Entities) prior to
delinquency.
8. As of the date thereof, the Preliminary Official Statement, to the Actual
Knowledge of the Undersigned, solely with respect to information contained therein with respect
to the Brookfield Entities, ownership of the Property, the Brookfield Entities’ development plan,
the Brookfield Entities’ financing plan, the Brookfield Entities’ lenders, if any, and contractual
arrangements of the Brookfield Entities as set forth under the captions “IMPROVEMENT
AREA NO. 1 –Improvement Area No. 1 Ownership,” “—The Development Plan – Huntington
Neighborhood,” “-- -- Wilshire Neighborhood,” “-- -- Fillmore Neighborhood,” “—Financing
Plan – Merchant Builders – Brookfield Merchant Builders Financing Plan,” and
“CONTINUING DISCLOSURE – Brookfield BAH” (but in all cases under all captions
excluding therefrom (i) information regarding Dublin Crossing, LLC or CalAtlantic Group, Inc.,
or their property development in the District, (ii) information regarding the Appraisal, market
value ratios, and annual special tax ratios), and (iii) information which is identified as having
been provided by a source other than the Developer), is true and correct in all material respects
and did not contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading.
9. The Developer covenants that, while the Bonds or any refunding obligations
related thereto are outstanding, the Developer and its Affiliates that it controls will not bring any
action, suit, proceeding, inquiry or investigation at law or in equity, before any court, regulatory
agency, public board or body, that in any way seeks to challenge or overturn the formation of the
District, to challenge the adoption of the ordinance of the City levying Special Taxes within the
District, to invalidate the District or any of the Bonds or any refunding bonds related thereto, or
to invalidate the special tax liens imposed under Section 3115.5 of the Streets and Highways
Code. The foregoing covenant shall not prevent the Developer or any Affiliate (including the
Brookfield Entities) prior to delinquency in any way from bringing any action, suit, proceeding,
inquiry or investigation at law or in equity, before any court, regulatory agency, public board or
body, including, without limitation, (a) contending that the Special Tax has not been levied in
accordance with the methodologies contained in the Rate and Method of Apportionment of
Special Taxes for Improvement Area No. 1 pursuant to which the Special Taxes are levied, (b)
with respect to the application or use of the Special Taxes levied and collected, or (c) to enforce
C-4
the obligations of the City and/or the District under the City Documents, or any other agreements
among the Developer and its Affiliates, the City, and/or the District or to which the Developer or
its Affiliates is a beneficiary.
10. Except as disclosed in the Preliminary Official Statement, to the Actual
Knowledge of the Undersigned, the Developer is not aware that any other public debt secured by
a tax or assessment on the Property exists or is in the process of being authorized or any
assessment districts or community facilities districts have been or are in the process of bein g
formed that include any portion of the Property.
11. The Brookfield Entities have been developing or have been involved in the
development of numerous projects over an extended period of time. It is likely that the
Brookfield Entities and some of their Affiliates have been delinquent at one time or another in
the payment of ad valorem property taxes, special assessments or special taxes. To the Actual
Knowledge of the Undersigned, in the last five years, neither the Brookfield Entities nor any of
their Affiliates have been delinquent to any material extent in the payment of any ad valorem
property tax, special assessment or special tax on property owned by the Brookfield Entities or
any current Affiliate during the period of their ownership included within the boundaries of a
community facilities district or an assessment district within California that (a) caused a draw on
a reserve fund relating to such assessment district or community facilities district financing or (b)
resulted in a judicial foreclosure action being commenced against the Brookfield Entities or any
such Affiliate.
12. The Developer consents to the issuance of the Bonds. The Developer
acknowledges and agrees that the proceeds of the Bonds will be used as described in the
Preliminary Official Statement.
13. The Developer intends to comply, and expects the Brookfield Entities to comply,
with the provision of the Mello-Roos Community Facilities District Act of 1982, as amended,
relating to the Notice of Special Tax described in Government Code Section 53341.5 in
connection with the sale of the Property, or portions thereof.
14. To the Actual Knowledge of the Undersigned, the Brookfield Entities are able to
pay their bills as they become due and no legal proceedings are pending against the B rookfield
Entities (with proper service of process to the Brookfield Entities having been accomplished) or,
to the Actual Knowledge of the Undersigned, threatened in writing in which the Brookfield
Entities may be adjudicated as bankrupt or discharged from any and all of their debts or
obligations, or granted an extension of time to pay their debts or obligations, or be allowed to
reorganize or readjust their debts, or be subject to control or supervision of the Federal Deposit
Insurance Corporation.
15. To the Actual Knowledge of the Undersigned, Affiliates of the Brookfield Entities
are able to pay their bills as they become due and no legal proceedings are pending against any
Affiliates of the Brookfield Entities (with proper service of process to such Affiliate having been
accomplished) or to the Actual Knowledge of the Undersigned, threatened in writing in which
the Affiliates of the Brookfield Entities may be adjudicated as bankrupt or discharged from any
or all of their debts or obligations, or granted an extension of time to pay their debts or
C-5
obligations, or be allowed to reorganize or readjust their debts or obligations, or be subject to
control or supervision of the Federal Deposit Insurance Corporation.
16. Based upon its current development plans, including, without limitation, its
current budget and subject to economic conditions and risks generally inherent in the
development of real property, including, but not limited to, the risks described in the Preliminary
Official Statement under the section entitled “SPECIAL RISK FACTORS,” and except as
disclosed in the Preliminary Official Statement including in the sections entitled
“IMPROVEMENT AREA NO. 1 –Improvement Area No. 1 Ownership,” “—The Development
Plan – Huntington Neighborhood,” “-- -- Wilshire Neighborhood,” “-- -- Fillmore
Neighborhood,” “—Financing Plan – Merchant Builders – Brookfield Merchant Builders
Financing Plan,” and “CONTINUING DISCLOSURE – Brookfield BAH” the Developer
anticipates that the Brookfield Entities will have sufficient funds to complete the development of
the Property as described in the Preliminary Official Statement and to pay Special Taxes levied
against the Property (to the extent the responsibility of the Brookfield Entities) prior to
delinquency and does not anticipate that the City or the District will be required to resort to a
draw on the Reserve Fund for payment of principal of or interest on the Bonds due to the
Brookfield Entities’ nonpayment of Special Taxes. Each of the Brookfield Entities reserves the
right to change its respective development plan and financing plan for the Property at any time
without notice.
17. Solely as to the limited information described in the sections of the Preliminary
Official Statement indicated in Paragraph 8 above (and subject to all limitations set forth in
Paragraph 8), the Developer agrees to indemnify and hold harmless, to the extent permitted by
law, the City, the District, the Underwriter, and their officials and employees, and each Person, if
any, who controls any of the foregoing within the meaning of Section 15 of the Securities Act of
1933, as amended, or of Section 20 of the Securities Exchange Act of 1934, as amended (each an
“Indemnified Party”), against any and all losses, claims, damages or liabilities, joint or s everal,
to which such Indemnified Party may become subject under any statute or at law or in equity or
otherwise and shall reimburse any such Indemnified Party for any reasonable legal or other
expense reasonably incurred by it in connection with investigating any such claim against it and
defending any such action, only to the extent that such losses, claims, damages, liabilities or
actions arise from any untrue statement by the Brookfield Entities of a material fact contained in
the above referenced information in the Preliminary Official Statement, as of its date, or the
omission by the Brookfield Entities to state in the Preliminary Official Statement, as of its date, a
material fact necessary to make the statements made by the Brookfield Entities contained therein,
in light of the circumstances under which they were made not misleading. This indemnity
provision shall not be construed as a limitation on any other liability which the Developer may
otherwise have to any Indemnified Party, provided that in no event shall the Developer be
obligated for double indemnification, or for the negligence or willful misconduct of an
Indemnified Party.
If any suit, action, proceeding (including any governmental or regulatory investigation),
claim or demand shall be brought or asserted against any Indemnified Party in respect of which
indemnification may be sought pursuant to the above paragraph, such Indemnified Party shall
promptly notify the Developer in writing; provided that the failure to notify the Developer shall
not relieve it from any liability that it may have hereunder except to the extent that it has been
C-6
materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure;
and provided, further, that the failure to notify the Developer shall not relieve it from any
liability that it may have to an Indemnified Party otherwise than under the above paragraph. If
any such proceeding shall be brought or asserted against an Indemnified Party and it shall have
notified the Developer thereof, the Developer shall retain counsel reasonably satisfactory to the
Indemnified Party (who shall not, without the consent of the Indemnified Party, be counsel to the
Developer) to represent the Indemnified Party in such proceeding and shall pay the fee s and
expenses of such counsel related to such proceeding, as incurred. In any such proceeding, any
Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Party unless (i) the Developer and the
Indemnified Party shall have mutually agreed to the contrary; (ii) the Developer has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified Party; (iii) the
Indemnified Party shall have reasonably concluded that there may be legal defenses available to
it that are different from or in addition to those available to the Developer; or (iv) the named
parties in any such proceeding (including any impleaded parties) include both the Developer and
the Indemnified Party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interest between them. It is understood and
agreed that the Developer shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Indemnified Parties, and that all such fees and expenses, to
the extent reasonable, shall be paid or reimbursed as they are incurred. Any such separate firm
shall be designated in writing by such Indemnified Parties. The Developer shall not be liable for
any settlement of any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Developer agrees to indemnify each
Indemnified Party from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall
have requested that the Developer reimburse the Indemnified Party for fees and expenses of
counsel as contemplated by this paragraph, the Developer shall be liable for any settlement of
any proceeding effected without its written consent if (i) such settlement is entered into more
than 60 days after receipt by the Developer of such request and (ii) the Developer shall not have
reimbursed the Indemnified Party in accordance with such request prior to the date of such
settlement (provided that the foregoing shall not be applicable to any failure to reimburse if the
Developer is disputing such payment in good faith and shall have paid any amounts not in
dispute). The Developer shall not, without the written consent of the Indemnified Party, effect
any settlement of any pending or threatened proceeding in respect of which any Indemnified
Party is or could have been a party and indemnification could have been sought hereunder by
such Indemnified Party, unless such settlement (x) includes an unconditional release of such
Indemnified Party, in form and substance reasonably satisfactory to such Indemnified Party,
from all liability on claims that are the subject matter of such proceeding and (y) does not
include any statement as to or any admission of fault, culpability or a failure to act by or on
behalf of any Indemnified Party.
18. If between the date hereof and the Closing Date any event relating to or affecting
Brookfield Entities, ownership of the Property, the Brookfield Entities’ development plan, the
Brookfield Entities’ financing plan, the Brookfield Entities’ lenders, if any, and contractual
arrangements of the Brookfield Entities shall occur of which the undersigned has actual
knowledge and which the undersigned believes would cause the information under the sections
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of the Preliminary Official Statement indicated in Paragraph 8 hereof, to contain an untrue
statement of a material fact or to omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading, the
undersigned shall notify the City and the Underwriter and if in the opinion of counsel to the City
or the Underwriter such event requires the preparation and publication of a supplement or
amendment to the Preliminary Official Statement, the Developer shall reasonably cooperate with
the City in the preparation of an amendment or supplement to the Preliminary Official Statement
in form and substance reasonably satisfactory to counsel to the City and to the Underwriter.
19. For the period through 25 days after the “end of the underwriting period” as
defined in the Purchase Contract, if any event relating to or affecting the Developer, its
Affiliates, ownership of the Property, the Developer’s development plan, the Developer’s
financing plan, the Developer’s lenders, if any, and contractual arrangements of the Developer or
any Affiliates (including, if material to the Developer’s development plan or the Developer’s
financing plan, other loans of such Affiliates) shall occur as a result of which it is necessary, in
the opinion of the Underwriter or counsel to the City, to amend or supplement the Official
Statement in order to make the Official Statement not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, the Developer shall reasonably
cooperate with the City and the Underwriter in the preparation of an amendment or supplement
to the Official Statement in form and substance reasonably satisfactory to the Underwriter and
Disclosure Counsel which will amend or supplement the Official Statement so that it will not
contain an untrue statement of a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances existing at the time the Official
Statement is delivered to a purchaser, not misleading.
20. On behalf of the Developer, the undersigned have reviewed the contents of this
Certificate and have met with counsel to the Developer for the purpose of discussing the
meaning of its contents.
The undersigned have executed this Certificate solely in their capacity as
authorized representatives of Developer and they will have no personal liability arising from or
relating to this Certificate. Any liability arising from or relating to this Certificate may only be
asserted against the Developer.
BROOKFIELD BAY AREA HOLDINGS, LLC,
A Delaware limited liability company
By: __________________________________
Name: __________________________________
Title: ___________________________________
By: ____________________________________
Name: __________________________________
Title: ___________________________________
D-1
EXHIBIT D
CITY OF DUBLIN
IMPROVEMENT AREA NO. 1
COMMUNITY FACILITIES DISTRICT NO. 2015-1 (DUBLIN CROSSING)
SPECIAL TAX BONDS, SERIES 2017
CERTIFICATE OF CALATLANTIC GROUP, INC.
Dated: ___________, 2017
In connection with the issuance and sale of the above-captioned bonds (the “Bonds”),
and pursuant to the Purchase Contract (the “Purchase Contract”) to be executed by and
between City of Dublin (the “City”), for and on behalf of the City of Dublin Community
Facilities District No. 2015-1 (Dublin Crossing) (the “District”), and Prager &Co., LLC (the
“Underwriter”), the undersigned certifies that he or she is familiar with the facts herein certified
and is authorized and qualified to certify the same as an authorized officer or representative of
CalAtlantic Group, Inc., a Delaware corporation (the “Developer”), and the undersigned, on
behalf of the Developer, further certifies, represents, warrants, and covenants to the City, the
District and the Underwriter as of the date hereof that:
1. The Developer is duly organized and validly existing under the laws of the State
of Delaware, is qualified to transact business in the State of California, and has all requisite right,
power, and authority: (i) to execute and deliver this Certificate of CalAtlantic Group, Inc. (the
“Certificate”) and the Continuing Disclosure Undertakings to be executed by the Developer (the
“Continuing Disclosure Undertakings”).
2. The Developer makes the representations in this Certificate with respect to certain
property within Improvement Area No. 1 of the District held in the name of the Developer, as
described in the Preliminary Official Statement (the “Property”). Except as otherwise described
in the Preliminary Official Statement, the Developer is and, as of the date of this Certificate,
expects to remain, the party responsible for the construction and sales of homes within the
Property.
3. The Developer has duly authorized the execution and delivery at the Closing of
the Continuing Disclosure Undertakings.
4. Except as disclosed in the Preliminary Official Statement, to the Actual
Knowledge of the Undersigned,1 the Developer and its Affiliates2 have not violated any
1 As used in this Certificate, the phrase “Actual Knowledge of the Undersigned” means the knowledge that the individual
signing on behalf of the Developer currently has as of the date of this Certificate or has obtained through (i) interviews wi th such
current officers and responsible employees of the Developer and its Affiliates as the undersigned has determined are reasonably
likely, in the ordinary course of their respective duties, to have knowledge of the matters set forth in this Certificate, an d/or (ii)
review of documents that were reasonably available to the undersigned and which the undersigned has reasonably deemed
necessary for the undersigned to obtain knowledge of the matters set forth in this Certificate. The undersigned has not conducted
any extraordinary inspection or inquiry other than such inspections or inquiries as are prudent and customary in connection wit h
the ordinary course of the Developer’s current business and operations. Individuals who are no longer employees of the
Developer and its Affiliates have not been contacted. The Developer further notes that it recently completed a merger with The
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applicable law or administrative regulation of the State of California or the United States of
America, or any agency or instrumentality of either, which violation could reasonably be
expected to materially and adversely affect the Developer’s ability to pay Special Taxes due with
respect to the Property (to the extent the responsibility of the Developer) prior to delinquency.
5. Except as disclosed in the Preliminary Official Statement, to the Actual
Knowledge of the Undersigned, (a) the Developer and its Affiliates are not in breach of or in
default under any applicable judgment or decree or any loan agreement, option agreement,
development agreement, indenture, bond or note (collectively, the “Material Agreements”) to
which the Developer and its Affiliates are a party or otherwise subject, which breach or default
could reasonably be expected to materially and adversely affect the Developer’s ability to
complete the development of the Property as described in the Preliminary Official Statement or
to pay the Special Taxes due with respect to the Property (to the extent the responsibility of the
Developer) prior to delinquency and (b) no event has occurred and is continuing that with the
passage of time or giving of notice, or both, would constitute such a breach or default.
6. Except as described in the Preliminary Official Statement, there is no material
indebtedness of the Developer and its Affiliates that is secured by an interest in the Property. To
the Actual Knowledge of the Undersigned, neither the Developer nor any of its Affiliates is in
default on any obligation to repay borrowed money, which default is reasonably likely to
materially and adversely affect the Developer’s ability to complete the development of the
Property as described in the Preliminary Official Statement or to pay its Special Taxes due with
respect to the Property (to the extent the responsibility of the Developer) prior to delinquency.
7. Except as set forth in the Preliminary Official Statement, no action, suit,
proceeding, inquiry or investigation at law or in equity, before or by any court, regulatory
agency, public board or body is pending against the Developer (with proper servic e of process to
the Developer having been accomplished) or, to the Actual Knowledge of the Undersigned, is
pending against any current Affiliate (with proper service of process to such Affiliate having
been accomplished) or to the Actual Knowledge of the Undersigned is th reatened in writing
Ryland Group, Inc., a Maryland corporation (“Ryland Group”), pursuant to which Ryland Group merged with and into the
Developer, with the Developer being the surviving entity. Individuals who were employees and officers of Ryland Group and its
subsidiaries prior to the merger have not been consulted or contacted and documents entered into by Ryland Group and its
subsidiaries or related to their properties and projects have not been reviewed.
2 “Affiliate” means, with respect to the Developer any other Person (i) who directly, or indirectly through one or more
intermediaries, is currently controlling, controlled by or under common control with the Developer, and (ii) for whom
information, including financial information or operating data, concerning such Person is material to an evaluation of the Di strict
and the Bonds (i.e., information relevant to (a) the Developer’s development plans with re spect to its Property and the payment of
its Special Taxes on the Property (to the extent the responsibility of the Developer) prior to delinquency, or (b) such Perso n’s
assets or funds that would materially affect the Developer’s ability to develop its Property as described in the Preliminary Official
Statement or to pay its Special Taxes on the Property (to the extent the responsibility of the Developer) prior to delinquenc y).
Notwithstanding the foregoing, the following entities shall not be considered Affiliates of the Developer: Dublin Crossing, LLC;
Brookfield Bay Area Holdings, LLC; Brookfield Wilshire LLC; or Brookfield Fillmore LLC. “Person” means an individual, a
corporation, a partnership, a limited liability company, an association, a joint sto ck company, a trust, any unincorporated
organization or a government or political subdivision thereof. For purposes hereof, the term “control” (including the terms
“controlling,” “controlled by” or “under common control with”) means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by
contract or otherwise. For purposes hereof, Affiliates shall exclude MP CA Homes, LLC and its Affiliates (other than the
Developer and its direct or indirect subsidiaries).
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against the Developer or any such Affiliate which if successful, is reasonably likely to materially
and adversely affect the Developer’s ability to complete the development of the Property as
described in the Preliminary Official Statement or to pay the Special Tax or ad valorem tax
obligations on the Property (to the extent the responsibility of the Developer) prior to
delinquency.
8. As of the date thereof, the Preliminary Official Statement, to the Actual
Knowledge of the Undersigned, solely with respect to information contained therein with respect
to the Developer, ownership of the Property, the Developer’s development plan, the Developer’s
financing plan, the Developer’s lenders, if any, and contractual arrangements of the Developer as
set forth under the captions “IMPROVEMENT AREA NO. 1 –Improvement Area No. 1
Ownership,” “—The Development Plan – Madison Neighborhood,” “-- -- Union Neighborhood,”
“-- -- Sunset Neighborhood,” “—Financing Plan – Merchant Builders – CalAtlantic’s Financing
Plan,” “OWNERSHIP OF PROPERTY WITHIN IMPROVEMENT AREA NO. 1 – The
Developer -- CalAtlantic,” and “CONTINUING DISCLOSURE – CalAtlantic” (but in all cases
under all captions excluding therefrom (i) information about Dublin Crossing, LLC; Brookfield
Bay Area Holdings, LLC; Brookfield Wilshire LLC; Brookfield Fillmore LLC, or their property
development in the District, (ii) information regarding the Appraisal, market value ratios, and
annual special tax ratios), and (iii) information which is identified as having been provided by a
source other than the Developer), is true and correct in all material respects and did not contain
any untrue statement of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not
misleading.
9. The Developer covenants that, while the Bonds or any refunding obligations
related thereto are outstanding, the Developer and its Affiliates that it controls will not bring any
action, suit, proceeding, inquiry or investigation at law or in equity, before any court, regulatory
agency, public board or body, that in any way seeks to challenge or overturn the formation of the
District, to challenge the adoption of the ordinance of the City levying Special Taxes within the
District, to invalidate the District or any of the Bonds or any refunding bonds related thereto, or
to invalidate the special tax liens imposed under Section 3115.5 of the Streets and Highways
Code. The foregoing covenant shall not prevent the Developer or any Affiliate in any way from
bringing any action, suit, proceeding, inquiry or investigation at law or in equity, before any
court, regulatory agency, public board or bod y, including, without limitation, (a) contending that
the Special Tax has not been levied in accordance with the methodologies contained in the Rate
and Method of Apportionment of Special Taxes for Improvement Area No. 1 pursuant to which
the Special Taxes are levied, (b) with respect to the application or use of the Special Taxes levied
and collected, or (c) to enforce the obligations of the City and/or the District under the City
Documents, or any other agreements among the Developer and its Affiliates, t he City, and/or the
District or to which the Developer or its Affiliates is a beneficiary.
10. Except as disclosed in the Preliminary Official Statement, to the Actual
Knowledge of the Undersigned, the Developer is not aware that any other public debt secured by
a tax or assessment on the Property exists or is in the process of being authorized or any
assessment districts or community facilities districts have been or are in the process of being
formed that include any portion of the Property.
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11. The Developer has been developing or has been involved in the development of
numerous projects over an extended period of time. It is likely that the Developer and some of
its Affiliates have been delinquent at one time or another in the payment of ad valorem prop erty
taxes, special assessments or special taxes. To the Actual Knowledge of the Undersigned, in the
last five years, neither the Developer nor any of its Affiliates have been delinquent to any
material extent in the payment of any ad valorem property tax, special assessment or special tax
on property owned by the Developer or any current Affiliate during the period of their ownership
included within the boundaries of a community facilities district or an assessment district within
California that (a) caused a draw on a reserve fund relating to such assessment district or
community facilities district financing or (b) resulted in a judicial foreclosure action being
commenced against the Developer or any such Affiliate.
12. The Developer consents to the issuance of the Bonds. The Developer
acknowledges and agrees that the proceeds of the Bonds will be used as described in the
Preliminary Official Statement.
13. The Developer intends to comply with the provision of the Mello-Roos
Community Facilities District Act of 1982, as amended, relating to the Notice of Special Tax
described in Government Code Section 53341.5 in connection with the sale of the Property, or
portions thereof.
14. To the Actual Knowledge of the Undersigned, the Developer is able to pay its
bills as they become due and no legal proceedings are pending against the Developer (with
proper service of process to the Developer having been accomplished) or, to the Actual
Knowledge of the Undersigned, threatened in writing in which the Developer may be adjudicated
as bankrupt or discharged from any and all of their debts or obligations, or granted an extension
of time to pay their debts or obligations, or be allowed to reorganize or readjust their debts, or be
subject to control or supervision of the Federal Deposit Insurance Corporation.
15. To the Actual Knowledge of the Undersigned, Affiliates of the Developer are able
to pay their bills as they become due and no legal proceedings are pending against any Affiliates
of the Developer (with proper service of process to such Affiliate having been accomplished) or
to the Actual Knowledge of the Undersigned, threatened in writing in which the Affiliates of the
Developer may be adjudicated as bankrupt or discharged from any or all of their debts or
obligations, or granted an extension of time to pay their debts or obligations, or be allowed to
reorganize or readjust their debts or obligations, or be subject to control or supervision of the
Federal Deposit Insurance Corporation.
16. Based upon its current development plans, including, without limitation, its
current budget and subject to economic conditions and risks generally inherent in the
development of real property, including, but not limited to, the risks described in the Preliminary
Official Statement under the section entitled “SPECIAL RISK FACTORS,” and except as
disclosed in the Preliminary Official Statement including in the sections entitled
“IMPROVEMENT AREA NO. 1 –Improvement Area No. 1 Ownership,” “—The Development
Plan – Madison Neighborhood,” “-- -- Union Neighborhood,” “-- -- Sunset Neighborhood,” “—
Financing Plan – Merchant Builders – CalAtlantic’s Financing Plan,” “OWNERSHIP OF
PROPERTY WITHIN IMPROVEMENT AREA NO. 1 – The Developer -- CalAtlantic,” and
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“CONTINUING DISCLOSURE – CalAtlantic,” the Developer anticipates that the Developer
will have sufficient funds to complete the development of the Property as described in the
Preliminary Official Statement and to pay Special Taxes levied against the Property (to the
extent the responsibility of the Developer) prior to delinquency and does not anticipate that the
City or the District will be required to resort to a draw on the Reserve Fund for payment of
principal of or interest on the Bonds due to the Developer’s nonpayment of Special Taxes. The
Developer reserves the right to change its development plan and financing plan for the Property
at any time without notice.
17. Solely as to the limited information described in the sections of the Preliminary
Official Statement indicated in Paragraph 8 above (and subject to all limitations set forth in
Paragraph 8), the Developer agrees to indemnify and hold harmless, to the extent permitted by
law, the City, the District, the Underwriter, and their officials and employees, and each Person, if
any, who controls any of the foregoing within the meaning of Section 15 of the Securities Act of
1933, as amended, or of Section 20 of the Securities Exchange Act of 1934, as amended (each an
“Indemnified Party”), against any and all losses, claims, damages or liabilities, joint or several,
to which such Indemnified Party may become subject under any statute or at law or in equity or
otherwise and shall reimburse any such Indemnified Party for any reasonable legal or other
expense reasonably incurred by it in connection with investigating any such claim against it and
defending any such action, only to the extent that such losses, claims, damages, liabilities or
actions arise from any untrue statement by the Developer of a material fact contained in the
above referenced information in the Preliminary Official Statement, as of its date, or the
omission by the Developer to state in the Preliminary Official Statement, as of its date, a material
fact necessary to make the statements made by the Developer contained therein, in light of the
circumstances under which they were made not misleading. This indemnity provision shall not
be construed as a limitation on any other liability which the Developer may otherwise have to
any Indemnified Party, provided that in no event shall the Developer be obligated for double
indemnification, or for the negligence or willful misconduct of an Indemnified Party.
If any suit, action, proceeding (including any governmental or regulatory investigation),
claim or demand shall be brought or asserted against any Indemnified Party in respect of which
indemnification may be sought pursuant to the above paragraph, such Indemnified Party shall
promptly notify the Developer in writing; provided that the failure to notify the Developer shall
not relieve it from any liability that it may have hereunder except to the extent that it has been
materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure;
and provided, further, that the failure to notify the Developer shall not relieve it from any
liability that it may have to an Indemnified Party otherwise than under the above paragraph. If
any such proceeding shall be brought or asserted against an Indemnified Party and it shall have
notified the Developer thereof, the Developer shall retain counsel reasonably satisfactory to the
Indemnified Party (who shall not, without the consent of the Indemnified Party, be counsel to the
Developer) to represent the Indemnified Party in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding, as incurred. In any such proceeding, any
Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Party unless (i) the Developer and the
Indemnified Party shall have mutually agreed to the contrary; (ii) the Developer has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified Party; (iii) the
Indemnified Party shall have reasonably concluded that there may be legal defenses available to
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it that are different from or in addition to those available to the Developer; or (iv) the named
parties in any such proceeding (including any impleaded parties) include both the Developer and
the Indemnified Party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interest between them. It is understood and
agreed that the Developer shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Indemnified Parties, and that all such fees and expenses, to
the extent reasonable, shall be paid or reimbursed as they are incurred. Any such separate firm
shall be designated in writing by such Indemnified Parties. The Develope r shall not be liable for
any settlement of any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Developer agrees to indemnify each
Indemnified Party from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall
have requested that the Developer reimburse the Indemnified Party for fees and expenses of
counsel as contemplated by this paragraph, the Developer shall be liable for any settlement of
any proceeding effected without its written consent if (i) such settlement is entered into more
than 60 days after receipt by the Developer of such request and (ii) the Developer shall not have
reimbursed the Indemnified Party in accordance with such request prior to the date of such
settlement (provided that the foregoing shall not be applicable to any failure to reimburse if the
Developer is disputing such payment in good faith and shall have paid any amounts not in
dispute). The Developer shall not, without the written consent of the Indemnified Party, effect
any settlement of any pending or threatened proceeding in respect of which any Indemnified
Party is or could have been a party and indemnification could have been sought hereunder by
such Indemnified Party, unless such settlement (x) includes an unconditional release of such
Indemnified Party, in form and substance reasonably satisfactory to such Indemnified Party,
from all liability on claims that are the subject matter of such proceeding and (y) does not
include any statement as to or any admission of fault, culpability or a failure to act by or on
behalf of any Indemnified Party.
18. If between the date hereof and the Closing Date any event relating to or affecting
Developer, ownership of the Property, the Developer’s development plan, the Developer’s
financing plan, the Developer’s lenders, if any, and contractual arrangements of the Developer
shall occur of which the undersigned has actual knowledge and which the undersigned believes
would cause the information under the sections of the Preliminary Official Statement indicated in
Paragraph 8 hereof, to contain an untrue statement of a material fact or to omit to state a mat erial
fact necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading, the undersigned shall notify the City and the Underwriter and if in
the opinion of counsel to the City or the Underwriter such event requires the preparation and
publication of a supplement or amendment to the Preliminary Official Statement, the Developer
shall reasonably cooperate with the City in the preparation of an amendment or supplement to
the Preliminary Official Statement in form and substance reasonably satisfactory to counsel to
the City and to the Underwriter.
19. For the period through 25 days after the “end of the underwriting period” as
defined in the Purchase Contract, if any event relating to or affecting the Developer, its
Affiliates, ownership of the Property, the Developer’s development plan, the Developer’s
financing plan, the Developer’s lenders, if any, and contractual arrangements of the Developer or
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any Affiliates (including, if material to the Developer’s development plan or the Developer’s
financing plan, other loans of such Affiliates) shall occur as a result of which it is necessary, in
the opinion of the Underwriter or counsel to the City, to amend or supplement the Official
Statement in order to make the Official Statement not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, the Developer shall reasonably
cooperate with the City and the Underwriter in the preparation of an amendment or supplement
to the Official Statement in form and substance reasonably satisfactory to the Underwriter and
Disclosure Counsel which will amend or supplement the Official Statement so that it will not
contain an untrue statement of a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances existing at the time the Official
Statement is delivered to a purchaser, not misleading.
20. On behalf of the Developer, the undersigned has reviewed the contents of this
Certificate and has met with counsel to the Developer for the purpose of discussing the meaning
of its contents.
The undersigned has executed this Certificate solely in its capacity as authorized
officer or representative of Developer and the undersigned will have no personal liability arising
from or relating to this Certificate. Any liability arising from or relating to this Certificate may
only be asserted against the Developer.
CALATLANTIC GROUP, INC.,
A Delaware corporation
By:
Name: __________________________________
Title: ___________________________________
Jones Hall Draft 7.10.17 [Agenda Version]
PRELIMINARY OFFICIAL STATEMENT DATED __________________, 2017
NEW ISSUE-FULL BOOK ENTRY NOT RATED
[Tax Language to come]
$_____________*
CITY OF DUBLIN
IMPROVEMENT AREA NO. 1
COMMUNITY FACILITIES DISTRICT NO. 2015-1
(DUBLIN CROSSING)
SPECIAL TAX BONDS, SERIES 2017
Dated: Date of Delivery Due: September 1, as shown below
The bonds captioned above (the “Bonds”), are being issued by the City of Dublin (the “City”) by and through its Improvement Area
No. 1 Community Facilities District No. 2015-1 (Dublin Crossing) (the “District” and “Improvement Area No. 1”). The Bonds are special tax
obligations of the City, authorized pursuant to the Mello-Roos Community Facilities Act of 1982, as amended, being California Government
Code Section 53311, et seq. (the “Act”), and are issued pursuant to a Fiscal Agent Agreement dated as of ____________ 1, 2017 (the
“Fiscal Agent Agreement”) by and between the City and U.S. Bank National Association, as fiscal agent (the “Fiscal Agent”). The Bonds
are issued to (i) construct and acquire certain public facilities and/or reimburse the payment of fees for capital improvements, (ii) provide for
the establishment of a reserve fund, [(iii) provide capitalized interest,] and (iv) pay the costs of issuance of the Bonds. Interest on the Bonds
is payable on _____ 1, 20__, and thereafter semiannually on March 1 and September 1 of each year.
The Bonds are being issued as fully registered bonds, registered in the name of Cede & Co. as nominee of The Depository Trust
Company, New York, New York (“DTC”), and will be available to ultimate purchasers in the denomination of $5,000 or any integral multiple
thereof, under the book-entry system maintained by DTC. See “APPENDIX H – BOOK-ENTRY SYSTEM.”
The Bonds are secured by and payable from a pledge of Special Tax Revenues (as defined herein) consisting primarily of special
taxes to be levied by the City on real property within the boundaries of Improvement Area No. 1, and from amounts held in certain funds
under the Fiscal Agent Agreement, all as more fully described herein. Unpaid Special Taxes do not constitute a personal indebtedness
of the owners of the parcels within Improvement Area No. 1. In the event of delinquency, proceedings may be conducted only
against the parcel of real property securing the delinquent Special Tax. There is no assurance the owners will be able to pay the
Special Tax or that they will pay a Special Tax even though financially able to do so. To provide funds for payment of the Bonds and
the interest thereon as a result of any delinquent Special Taxes, the City will establish a Reserve Fund from proceeds of the Bonds, as
described herein. See “SECURITY AND SOURCES OF PAYMENT FOR THE BONDS.”
Property in Improvement Area No. 1 within the District comprises approximately 28 taxable acres northeast of the center of the City
currently planned for 453 single family units subject to the Special Tax. All of the property in Improvement Area No. 1 is currently owned by
five entities. The Bonds are only secured by parcels in Improvement Area No. 1. See “IMPROVEMENT AREA NO. 1.”
The Bonds are subject to optional and mandatory redemption prior to maturity as described herein. See “THE BONDS —
Redemption.”
NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER OF THE CITY, THE COUNTY OF ALAMEDA, THE STATE OF
CALIFORNIA NOR ANY POLITICAL SUBDIVISION THEREOF IS PLEDGED TO THE PAYMENT OF THE BONDS. THE BONDS DO
NOT CONSTITUTE A DEBT OF THE CITY WITHIN THE MEANING OF ANY STATUTORY OR CONSTITUTIONAL DEBT LIMITATION.
THE INFORMATION SET FORTH IN THIS OFFICIAL STATEMENT, INCLUDING INFORMATION UNDER THE HEADING “SPECIAL
RISK FACTORS,” SHOULD BE READ IN ITS ENTIRETY.
This cover page contains certain information for general reference only. It is not a summary of all of the provisions of the Bonds.
Prospective investors must read the entire Official Statement to obtain information essential to the making of an informed investment
decision. See “SPECIAL RISK FACTORS” herein for a discussion of the special risk factors that should be considered, in addition to the
other matters and risk factors set forth herein, in evaluating the investment quality of the Bonds.
[Prager logo]
The Bonds are offered when, as and if issued, subject to approval as to their legality by _______, ______________, Bond
Counsel. Certain legal matters will be passed on by Jones Hall, a Professional Law Corporation, San Francisco, California, as Disclosure
Counsel. Certain legal matters will be passed upon for the City by Meyers Nave Riback Silver & Wilson, PLC, as the City Attorney. Rossi
A. Russell, Esq., Los Angeles, California is serving as Underwriter’s counsel, and Holland & Knight LLP, San Francisco, California, is
serving as counsel to Dublin Crossing, LLC. It is anticipated that the Bonds, in book-entry form, will be available for delivery through the
facilities of DTC on or about_________, 2017.
The date of this Official Statement is _______, 2017.
* Preliminary, subject to change.
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MATURITY SCHEDULE
Maturity Date
(September 1)
Principal
Amount
Interest
Rate
Price or
Yield
CUSIP†
(____)
$___________ _______% Term Bond Due September 1, ____ Price: _______% CUSIP: _______
† CUSIP Copyright 2017, CUSIP Global Services, and a registered trademark of American Bankers Association.
CUSIP data herein is provided by CUSIP Global Services, which is managed on behalf of American Bankers
Association by S&P Global Services, managed by Standard & Poor's Capital IQ. Neither the City nor the
Underwriter takes any responsibility for the accuracy of the CUSIP data.
CITY OF DUBLIN, CALIFORNIA
City Council
David Haubert, Mayor
Don Biddle, Vice Mayor
Abe Gupta, Councilmember
Arun Goel, Councilmember
Melissa Hernandez, Councilmember
City Staff
Christopher Foss, City Manager
Colleen Tribby, Administrative Services Director/Financial Director
Caroline Soto, City Clerk
____________________________
SPECIAL SERVICES
Bond Counsel
________________
_______, _____________
Municipal Advisor
Fieldman, Rolapp & Associates
Irvine, California
Appraiser
Seevers Jordan Ziegenmeyer
Rocklin, California
Special Tax Consultant
Goodwin Consulting Group, Inc.
Sacramento, California
Fiscal Agent
U.S. Bank National Association
San Francisco, California
Disclosure Counsel
Jones Hall, A Professional Law Corporation
San Francisco, California
GENERAL INFORMATION ABOUT THIS OFFICIAL STATEMENT
Use of 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 to be construed as a contract with the purchasers of the Bonds. Statements
contained in this Official Statement which involve estimates, forecasts or matters of opinion, whether or
not expressly so described herein, are intended solely as such and are not to be construed as a
representation of facts.
Estimates and Forecasts. When used in this Official Statement and in any continuing
disclosure by the District or the City, in any press release and in any oral statement made with the
approval of an authorized officer of the District or the City, the words or phrases “will likely result,” “are
expected to,” “will continue,” “is anticipated,” “estimate,” “project,” “forecast,” “expect,” “intend” and similar
expressions may identify “forward looking statements.” Such statements are subject to risks and
uncertainties that could cause actual results to differ materially from those contemplated in such forward-
looking statements. Any forecast is subject to such uncertainties. Inevitably, some assumptions used to
develop the forecasts will not be realized and unanticipated events and circumstances may occur.
Therefore, there are likely to be differences between forecasts and actual results, and those differences
may be material. The information and expressions of opinion herein are subject to change without notice,
and neither the delivery of this Official Statement nor any sale made hereunder shall, under any
circumstances, give rise to any implication that there has been no change in the affairs of the District or
the City since the date hereof.
Limit of Offering. 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 other than those contained
herein and, if given or made, such other information or representation must not be relied upon as having
been authorized by any of the foregoing. This Official Statement does not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of the Bonds by a person in any jurisdiction in
which it is unlawful for such person to make such an offer, solicitation or sale.
Involvement of Underwriter. The Underwriter has reviewed the information in this Official
Statement in accordance with, and as a 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. The information and expressions of opinions herein
are subject to change without notice and neither delivery of this Official Statement nor any sale made
hereunder shall, under any circumstances, create any implication that there has been no change in the
affairs of the City or the District since the date hereof. All summaries of the Fiscal Agent Agreement or
other documents referred to in this Official Statement, are made subject to the provisions of such
documents, respectively, and do not purport to be complete statements of any or all of such provisions.
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITER MAY OVERALLOT OR
EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE BONDS
OFFERED HEREBY AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME. THE
UNDERWRITER MAY OFFER AND SELL THE BONDS TO CERTAIN DEALERS, INSTITUTIONAL
INVESTORS AND OTHERS AT PRICES LOWER THAN THE PUBLIC OFFERING PRICE STATED ON
THE COVER PAGE HEREOF AND SAID PUBLIC OFFERING PRICE MAY BE CHANGED FROM TIME
TO TIME BY THE UNDERWRITER.
THE BONDS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, IN RELIANCE UPON AN EXCEPTION FROM THE REGISTRATION REQUIREMENTS
CONTAINED IN SUCH ACT. THE BONDS HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE SECURITIES LAWS OF ANY STATE.
The City maintains an Internet website, but the information on that website is not incorporated in
this Official Statement.
i
TABLE OF CONTENTS
INTRODUCTION ............................................... 1
THE BONDS ...................................................... 6
Authority for Issuance .................................... 6
Description of the Bonds ............................... 7
Redemption* .................................................. 8
Transfer or Exchange of Bonds ................... 10
ESTIMATED SOURCES AND USES OF
FUNDS ........................................................ 11
SECURITY AND SOURCES OF PAYMENT
FOR THE BONDS ....................................... 12
Pledge of Special Tax Revenues ................ 12
Deposit and Use of Proceeds of Bonds ....... 12
Special Taxes .............................................. 13
Special Tax Methodology ............................ 14
Levy of Annual Special Tax;; annual
Maximum Special Tax ............................. 14
Special Tax Fund ......................................... 16
Administrative Expense Fund ...................... 17
Reserve Fund .............................................. 17
Improvement Fund ...................................... 18
Delinquent Payments of Special Tax;;
Covenant for Superior Court
Foreclosure ............................................. 19
Additional Bonds .......................................... 21
DEBT SERVICE SCHEDULE ......................... 23
THE DUBLIN CROSSING PROJECT ............. 24
Dublin Crossing Specific Plan ..................... 24
Public Improvements Required for the
Dublin Crossing Project ........................... 29
Acquisition Agreement ................................. 30
Market Pricing and Absorption Analysis ...... 30
IMPROVEMENT AREA NO. 1 ......................... 31
Formation of the District .............................. 31
Location and Description of Improvement
Area No. 1 and the Immediate Area ........ 32
Improvement Area No. 1 Ownership ........... 35
Tract Map Status ......................................... 35
The Merchant Builders ................................ 35
The Development Plan ................................ 35
Financing Plan - Developer ......................... 39
Financing Plan – Merchant Builders ............ 40
OWNERSHIP OF PROPERTY WITHIN THE
DISTRICT .................................................... 42
The Developer ............................................. 42
APPRAISED VALUE OF PROPERTY
WITHIN IMPROVEMENT AREA NO. 1 ....... 44
The Appraisal .............................................. 44
Value to Special Tax Burden Ratios ............ 48
Overlapping Liens and Priority of Lien ......... 49
SPECIAL RISK FACTORS .............................. 51
Limited Obligation of the City to Pay Debt
Service .................................................... 51
Special Tax Not a Personal Obligation ........ 51
Concentration of Ownership ........................ 51
Levy and Collection of the Special Tax ....... 52
Insufficiency of Special Taxes ..................... 53
Appraised Values ........................................ 54
Value-to-Lien Ratios .................................... 54
Exempt Properties ....................................... 55
Property Values and Property
Development ........................................... 55
Other Possible Claims Upon the Value of
Taxable Property ..................................... 58
Bankruptcy and Foreclosure Delays ............ 59
No Acceleration Provisions .......................... 60
Loss of Tax Exemption ................................ 61
Enforceability of Remedies .......................... 61
No Secondary Market .................................. 61
Disclosure to Future Purchasers ................. 62
IRS Audit of Tax-Exempt Bond Issues ........ 62
Voter Initiatives ............................................ 62
Recent Case Law Related to the Mello-
Roos Act .................................................. 63
CONTINUING DISCLOSURE ......................... 64
The City ....................................................... 64
Brookfield BAH ............................................ 64
CalAtlantic ................................................... 65
UNDERWRITING ............................................ 65
MUNICIPAL ADVISOR .................................... 65
LEGAL OPINION ............................................. 65
TAX MATTERS ............................................... 65
NO RATINGS .................................................. 66
NO LITIGATION .............................................. 66
PROFESSIONAL FEES .................................. 66
EXECUTION .................................................... 66
APPENDIX A - RATE AND METHOD OF APPORTIONMENT OF SPECIAL TAX
APPENDIX B - THE APPRAISAL
APPENDIX C - SUMMARY OF CERTAIN PROVISIONS OF THE FISCAL AGENT AGREEMENT
APPENDIX D - THE CITY OF DUBLIN AND ALAMEDA COUNTY
APPENDIX E - PRICING REPORT
APPENDIX F - FORM OF OPINION OF BOND COUNSEL
APPENDIX G - FORM OF CONTINUING DISCLOSURE UNDERTAKINGS
APPENDIX H - BOOK ENTRY SYSTEM
OFFICIAL STATEMENT
$_____________*
CITY OF DUBLIN
IMPROVEMENT AREA NO. 1
COMMUNITY FACILITIES DISTRICT NO. 2015-1
(DUBLIN CROSSING)
SPECIAL TAX BONDS, SERIES 2017
This Official Statement, including the cover page and all appendices hereto, is provided
to furnish certain information in connection with the issuance of the bonds captioned above (the
“Bonds”) by the City of Dublin (the “City”), by and through Improvement Area No. 1
("Improvement Area No. 1") of the City of Dublin Community Facilities District No. 2015-1
(Dublin Crossing) (the “Community Facilities District” or the “District”).
Any statements made in this Official Statement involving matters of opinion or of
estimates, whether or not so expressly stated, are set forth as such and not as representations
of fact, and no representation is made that any of the estimates will be realized. Definitions of
certain terms used herein and not defined herein have the meaning set forth in the Fiscal Agent
Agreement. See “APPENDIX C – SUMMARY OF CERTAIN PROVISIONS OF THE FISCAL
AGENT AGREEMENT.”
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. The offering of the Bonds to potential investors is made only by
means of the entire Official Statement.
Authority for Issuance. The Bonds are issued pursuant to the provisions of the Mello-
Roos Community Facilities Act of 1982, as amended (Section 53311, et seq., of the
Government Code of the State of California) (the “Act”) and pursuant to a Fiscal Agent
Agreement dated as of July 1, 2017 (the “Fiscal Agent Agreement”) between the City and
U.S. Bank National Association, San Francisco, California, as fiscal agent (the “Fiscal Agent”)
and Resolution No. ________ (the “Resolution”) adopted on ______________, 2017 by the
City Council of the City (the “City Council”), as legislative body of the District. The Bonds,
together with Parity Bonds (as defined herein), are authorized to be issued up to the maximum
authorization for Improvement Area No. 1 of $46 million.
____________
* Preliminary;; subject to change.
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Bond Terms. The Bonds will be dated as of and bear interest from the date of delivery
thereof at the rate or rates set forth on the cover page of this Official Statement. Interest on the
Bonds is payable on March 1 and September 1 of each year (each an “Interest Payment
Date”), commencing ________ 1, 20__. The Bonds will be issued without coupons in
denominations of $5,000 or any integral multiple thereof.
Registration of Ownership of Bonds. The Bonds will be issued only as fully registered
bonds in book-entry form, registered in the name of Cede & Co., as nominee of The Depository
Trust Company (“DTC”). Ultimate purchasers of Bonds will not receive physical certificates
representing their interest in the Bonds. So long as the Bonds are registered in the name of
Cede & Co., as nominee of DTC, references herein to the Owners will mean Cede & Co., and
will not mean the ultimate purchasers of the Bonds. Payments of the principal, premium, if any,
and interest on the Bonds will be made directly to DTC, or its nominee, Cede & Co. so long as
DTC or Cede & Co. is the registered owner of the Bonds. Disbursements of such payments to
DTC’s Participants is the responsibility of DTC and disbursements of such payments to the
Beneficial Owners is the responsibility of DTC’s Participants and Indirect Participants, as more
fully described herein. See “APPENDIX H – BOOK-ENTRY SYSTEM.”
Use of Proceeds. Proceeds of the Bonds will primarily be used to finance the cost of
acquiring and constructing certain public infrastructure improvements and/or reimbursing fees
paid for capital improvements (collectively, the “Authorized Improvements,” as described
herein), generally including roadways and roadway related improvements, water, wastewater
and other miscellaneous infrastructure improvements in connection with the development of the
Dublin Crossing Project (as defined herein). Construction of Authorized Improvements by the
Developer (described herein) sufficient to commence home building in Phase 1A of
Improvement Area No. 1 is complete and homebuilding has commenced for Phase 1A.
Construction of Authorized Improvements by the Developer sufficient to commence home
building in Phase 1B of the Improvement Area No. 1 is ongoing and is expected to be complete
by Fall of 2017. The cost of a portion of the Authorized Improvements will be reimbursed by the
proceeds of the Bonds, and the Developer and/or the Merchant Builders (described herein) are
required to fund any remaining shortfall. See “THE DUBLIN CROSSING PROJECT - Public
Improvements Required for the Dublin Crossing Project.” Proceeds of the Bonds will also be
used to establish a reserve fund (described below) available for payment on the Bonds, to
provide capitalized interest until [_______________] and to pay cost of issuance of the Bonds.
Source of Payment of the Bonds. The Bonds are secured by and payable from
“Special Tax Revenues,” which are generally defined to mean the proceeds of the special tax
(the “Special Tax”) which will be levied by the City on taxable real property within the
boundaries of Improvement Area No. 1 and received by the City, including with respect to
prepayments, redemptions and foreclosures and delinquencies. The Bonds are also payable
from amounts held in certain funds and accounts pursuant to the Fiscal Agent Agreement,
including a reserve fund, all as more fully described herein. See “SECURITY AND SOURCES
OF PAYMENT FOR THE BONDS – Pledge of Special Taxes” for additional details.
The District was initially formed as a single improvement area (i.e., Improvement Area
No. 1 over Phase 1A), with the anticipated future phases of the Dublin Crossing Project
designated as part of the future annexation area to the District. On June 20, 2017, land planned
for development as Phase 1B was annexed to Improvement Area No. 1. The Developer
anticipates annexing additional property of the Dublin Crossing Project into future improvement
areas as such property is ready for development. However, the Bonds are only secured by
parcels within Improvement Area No. 1. The Special Tax applicable to each taxable parcel in
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Improvement Area No. 1 will be levied and collected according to the tax liability determined by
the City Council through the application of a rate and method of apportionment of Special Tax
for Improvement Area No. 1 (the “Rate and Method”) which has been approved by the City.
The Rate and Method is set forth in APPENDIX A hereto. The Special Taxes represent liens on
the parcels of land subject to a Special Tax and failure to pay the Special Taxes could result in
proceedings to foreclose the delinquent property. The Special Taxes do not constitute the
personal indebtedness of the owners of taxed parcels. See “SECURITY AND SOURCES OF
PAYMENT FOR THE BONDS — Special Tax Methodology” and “APPENDIX A — RATE AND
METHOD OF APPORTIONMENT OF SPECIAL TAX.” The maximum authorized indebtedness
for Improvement Area No. 1 is $46 million, and additional Parity Bonds are expected to be
issued in the future as development progresses.
In the Fiscal Agent Agreement, the City directs the Fiscal Agent to establish a Reserve
Fund (the “Reserve Fund”) from Bond proceeds in the amount of the Reserve Requirement
(described herein), which amount is available to be transferred to the Bond Fund in the event of
delinquencies in the payment of the Special Taxes, to the extent of such delinquencies. The
Reserve Fund is required to be maintained at the Reserve Requirement from moneys available
under the Fiscal Agent Agreement. See “SECURITY AND SOURCES OF PAYMENT FOR THE
BONDS — Reserve Fund.” If there are additional delinquencies after depletion of funds in the
Reserve Fund, the City is not obligated to pay the Bonds or supplement the Reserve Fund
except from Special Tax Revenues as described in the Fiscal Agent Agreement.
The District and the Improvement Areas. The land in Improvement Area No. 1 was
formerly a portion of the U.S. Army Reserve Reserve's "Camp Parks" base, which is adjacent to
and borders the Dublin Crossing Project to the north and which will continue in existence as to
the portion outside of the Dublin Crossing Project. Dublin Crossing, LLC, a Delaware limited
liability company (“Dublin Crossing” or the “Developer”), as the master developer of the
Dublin Crossing Project, is under contract with the Army Reserve to acquire additional land
owned by the Army Reserve, and has acquired some, but not all of the land in the Dublin
Crossing Project. As it acquires the land, Army Reserve facilities are demolished and the land is
converted to uses approved by the City for the Dublin Crossing Project. As the Developer
acquires such property, it installs backbone infrastructure to ready the land for development,
whereupon it is sold to it merchant builders for homebuilding.
The project (herein, the “Dublin Crossing Project”) was originally referred to as "Dublin
Crossing" but is being marketed as "Boulevard". Development of the Dublin Crossing Project is
planned to occur in 5 phases, with each phase other than Phase 1A/1B (which is Improvement
Area No. 1) being annexed to the District as separate improvement areas. All 5 phases of the
Dublin Crossing Project total approximately 190 acres, but the Bonds are secured by only by
special taxes levied on the parcels within Improvement Area No. 1 of the District;; special taxes
on property in the future annexation areas will not secure the Bonds. The Developer is a joint
venture between (i) BrookCal Dublin LLC, a Delaware limited liability company (“BrookCal”),
and (ii) SPIC Dublin LLC, a Delaware limited liability company (“SPIC”).
BrookCal is owned 100% by BrookCal Bay Area Holdings LLC, a Delaware limited
liability company (“BrookCal Bay Area”). BrookCal Bay Area is owned 100% by BrookCal,
LLC, a Delaware limited liability company (“BrookCal, LLC”). BrookCal, LLC is a joint venture
between BHC BrookCal, LLC, a Delaware limited liability company (“BHC BrookCal”), and the
California State Teachers Retirement System (“Cal STRS”). BHC BrookCal is an indirect wholly-
owned subsidiary of Brookfield Residential Properties Inc. (“Brookfield Residential”), a wholly-
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owned subsidiary of Brookfield Asset Management Inc., which has been developing land and
building homes for over 50 years.
SPIC is an affiliate of CalAtlantic Group, Inc., a Delaware corporation (“CalAtlantic”).
The Developer has entered into agreements with CalAtlantic and with builders that are
affiliated with Brookfield Residential. In particular, the Developer sold property to (i) Brookfield
Bay Area Holdings LLC (“Brookfield BAH”), Brookfield Wilshire LLC, and Brookfield Fillmore
LLC (collectively, the “Brookfield Merchant Builders”), all of which are subsidiaries of
Brookfield Residential, and (ii) CalAtlantic (herein, the “CalAtlantic Merchant Builder” and
together with the Brookfield Merchant Builders, the “Merchant Builders”). As of June 1, 2017,
the Developer owns 24 lots in Improvement Area No. 1, and anticipates conveying these 24 lots
to Brookfield BAH for development as part of the Huntington neighborhood. See
“IMPROVEMENT AREA NO. 1 - The Merchant Builders.”
Infrastructure development of Improvement Area No. 1 is carried out by the Developer,
who in turn sells what it refers to as "neighborhoods" to the Merchant Builders or their affiliates.
The Merchant Builders are independent entities from each other but are closely collaborating on
the development, marketing and selling of homes.
Property Subject to the Special Tax of Improvement Area No. 1. Improvement Area
No. 1 consists of approximately 28 taxable acres entitled for 453 residential units. Land in
Improvement Area No. 1 comprises 6 neighborhoods and is referred to by the Merchant
Builders as Phase 1A (neighborhoods 1-4) and Phase 1B (neighborhoods 5 & 6). Initial home
construction is underway by builders in Phase 1A and initial home sales are expected to close in
Phase 1A by the end of 2017;; initial home construction in Phase 1B is anticipated to commence
in the Fall of 2017, with initial sales in Phase 1B by the fourth quarter of 2017 or the first quarter
of 2018. See “IMPROVEMENT AREA NO. 1.”
Appraised Value of Property. Property in Improvement Area No. 1 is security for the
Special Tax. The City authorized the preparation of an appraisal report (the “Appraisal”) for
the real property within Improvement Area No. 1, which sets forth an estimated market value of
$153,210,000, as of the May 17, 2017 date of value. The valuation assumes matters stated in
the Appraisal, including completion of the Authorized Improvements funded by the Bonds, and
accounts for the impact of the lien of the Special Tax securing the Bonds. See
“IMPROVEMENT AREA NO. 1.” In considering the estimates of value evidenced by the
appraisal, it should be noted that the appraisal is based upon a number of standard and special
assumptions which affected the estimates as to value, in addition to the assumption of
completion of the Authorized Improvements funded with proceeds of the Bonds (but not any
future bonds). The Authorized Improvements to be paid for with proceeds of the Bonds are
underway but not complete. See “APPRAISED VALUE OF PROPERTY WITHIN
IMPROVEMENT AREA NO. 1” and APPENDIX B. The appraised valuation estimate of property
in Improvement Area No. 1 is 4.7* times the $32,745,000* aggregate principal amount of the
Bonds. This value-to-lien ratio does not take into account any overlapping liens on land in
Improvement Area No. 1. See APPRAISED VALUE OF PROPERTY WITHIN IMPROVEMENT
AREA NO. 1 - Overlapping Liens and Priority of Liens.”
The City and the County. The City is located in southern Alameda County (the
“County”), which is located in the "Tri Valley" area encompassing the cities of Pleasanton,
____________
* Preliminary;; subject to change.
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Livermore, Dublin, San Ramon, and Danville, as well as unincorporated Alamo, Blackhawk,
Camino Tassajara, Diablo, Norris Canyon, and Sunol. The three valleys from which it takes its
name are Amador Valley, Livermore Valley and San Ramon Valley. The City is located along
the north side of Interstate 580 at the intersection with Interstate 680 and between the cities of
Livermore and Pleasanton, roughly 35 miles (56 km) east of San Francisco, 23 miles east of
Oakland, and 31 miles north of San Jose. The estimated population of the City as of January
2017 was approximately 59,686. For economic and demographic information regarding the
area in and around the City, see “APPENDIX D – THE CITY OF DUBLIN AND ALAMEDA
COUNTY.”
Risks of Investment. See the section of this Official Statement entitled “SPECIAL RISK
FACTORS” for a discussion of special factors that should be considered, in addition to the other
matters set forth herein, in considering the investment quality of the Bonds.
Limited Obligation of the City. The general fund of the City is not liable and the full
faith and credit of the City is not pledged for the payment of the interest on, or principal of or
redemption premiums, if any, on the Bonds. The Bonds are not secured by a legal or equitable
pledge of or charge, lien or encumbrance upon any property of the City or any of its income or
receipts, except the money in certain funds established under the Fiscal Agent Agreement, and
neither the payment of the interest on nor principal of or redemption premiums, if any, on the
Bonds is a general debt, liability or obligation of the City. The Bonds do not constitute an
indebtedness of the City within the meaning of any constitutional or statutory debt limitation or
restrictions and neither the City Council, the City nor any officer or employee thereof are liable
for the payment of the interest on or principal of or redemption premiums, if any, on the Bonds
other than from the proceeds of the Special Taxes and the money in certain funds, as provided
in the Fiscal Agent Agreement.
Summary of Information. Brief descriptions of certain provisions of the Fiscal Agent
Agreement, the Bonds and certain other documents are included herein. The descriptions and
summaries of documents herein do not purport to be comprehensive or definitive, and reference
is made to each such document for the complete details of all its respective terms and
conditions, copies of which are available for inspection at the office of the finance official of the
City. All statements herein with respect to certain rights and remedies are qualified by reference
to laws and principles of equity relating to or affecting creditors’ rights generally. Capitalized
terms used in this Official Statement and not otherwise defined herein have the meanings
ascribed to such terms in the Fiscal Agent Agreement. The information and expressions of
opinion herein speak only as of the date of this Official Statement and are subject to change
without notice. Neither delivery of this Official Statement, any sale made hereunder, nor any
future use of this Official Statement shall, under any circumstances, create any implication that
there has been no change in the affairs of the City or the District since the date hereof.
Any statements made in this Official Statement involving matters of opinion or of
estimates, whether or not so expressly stated, are set forth as such and not as representations
of fact, and no representation is made that any of the estimates will be realized. For definitions
of certain terms used herein and not defined herein, see “APPENDIX C – SUMMARY OF
CERTAIN PROVISIONS OF THE FISCAL AGENT AGREEMENT.”
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THE BONDS
Authority for Issuance
The Bonds are issued pursuant to the Fiscal Agent Agreement, approved by Resolution
No. __ adopted by the City Council on _______, 2017, and the Act.
On April 21, 2015, the City Council adopted a Resolution of Intention to form a
community facilities district under the Act, to levy a special tax and to incur bonded
indebtedness for the purpose of financing the Authorized Improvements. After conducting a
noticed public hearing, on June 2, 2015, the City Council adopted the Resolution of Formation
(the “Resolution of Formation”), which established Community Facilities District No. 2015-1
and Improvement Area No. 1 thereof, and designated a future annexation area (the “Future
Annexation Area”), which includes the remaining phases of the Dublin Crossing Project (which
are anticipated to be annexed by phase into the District as Improvement Area No. 2,
Improvement Area No. 3, Improvement Area No. 4, and Improvement Area No. 5). The
Resolution of Formation also set forth the Rate and Method within Improvement Area No. 1 and
for each future Improvement Area, and set forth the necessity to incur bonded indebtedness in a
total amount not to exceed $150 million for the District as a whole, $46 million for Improvement
Area No. 1, and as follows for each future Improvement Area: $34 million for Improvement Area
No. 2, $23 million for Improvement Area No. 3, $12 million for Improvement Area No. 4 and $35
million for Improvement Area No. 5. On the same day, an election was held within the District in
which the Dublin Crossing Venture, LLC, the predecessor owner of the land in Improvement
Area No. 1 (who was then the only eligible landowner voter in the District and is referred to
herein as the “Prior Owner”) unanimously approved the proposed bonded indebtedness and
the levy of the Special Tax.
Under the provisions of the Act, since there were fewer than 12 registered voters
residing within the District and Improvement Area No. 1 at a point during the 90-day period
preceding the adoption of the Resolution of Formation, the qualified electors entitled to vote in
the special election consisted of the Prior Owner, as sole landowner. The landowner voted to
incur the indebtedness and to approve the annual levy of Special Taxes to be collected within
Improvement Area No. 1, for the purpose of paying for the Authorized Improvements, including
repaying any indebtedness of Improvement Area No. 1, replenishing reserve funds and paying
the administrative expenses of Improvement Area No. 1. See “IMPROVEMENT AREA NO. 1 -
Formation of the District” herein. The Prior Owner, as the sole landowner, also approved the
designation of the Future Annexation Area, and approved the bonded indebtedness for the
future Improvement Areas.
The Bonds are the first series to be issued for Improvement Area No. 1 under the
authorization;; additional bonds are expected to be issued, up to the total bond authorization of
$46 million for Improvement Area No. 1.
Land within the Future Annexation Area may from time to time in the future be annexed
into any Improvement Area of the District by the execution of an owner of land in the Future
Annexation Area of a unanimous written consent to be annexed to the District and into a
particular Improvement Area. In fact, in June 2017, Phase 1B of the Dublin Crossing Project,
which was initially identified as part of the Future Annexation Area, was annexed into
Improvement Area No. 1. A special tax will be levied on annexed territory only with the
unanimous approval of the owner or owners of each parcel or parcels at the time of annexation
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into the respective Improvement Area, whereupon a special tax will become a continuing lien
against all non-exempt real property in the annexed portion of the Future Annexation Area.
Each annexation will add property to a specific Improvement Area;; Special taxes of each
Improvement Area will secure only bonds issued by that respective Improvement Area. No
additional property is anticipated to be annexed to Improvement Area No. 1.
Description of the Bonds
Bond Terms. The Bonds will be dated as of and bear interest from the date of delivery
thereof at the rates and mature in the amounts and years, as set forth on the inside cover page
hereof. The Bonds are being issued in the denomination of $5,000 or any integral multiple
thereof.
Interest on the Bonds will be payable semiannually on March 1 and September 1 of each
year (each an “Interest Payment Date”), commencing ______ 1, 20__. The principal of the
Bonds and premiums due upon the redemption thereof, if any, will be payable in lawful money
of the United States of America at the principal corporate trust office of the Fiscal Agent in San
Francisco, California, or such other place as designated by the Fiscal Agent, upon presentation
and surrender of the Bonds;; provided that so long as any Bonds are in book-entry form,
payments with respect to such Bonds will be made by wire transfer, or such other method
acceptable to the Fiscal Agent, to DTC.
Book-Entry Only System. The Bonds are being issued as fully registered bonds,
registered in the name of Cede & Co., as nominee of The Depository Trust Company, New
York, New York (“DTC”), and will be available to ultimate purchasers under the book-entry
system maintained by DTC. Ultimate purchasers of Bonds will not receive physical certificates
representing their interest in the Bonds. So long as the Bonds are registered in the name of
Cede & Co., as nominee of DTC, references herein to the Owners will mean Cede & Co., and
will not mean the ultimate purchasers of the Bonds. The Fiscal Agent will make payments of the
principal, premium, if any, and interest on the Bonds directly to DTC, or its nominee, Cede &
Co., so long as DTC or Cede & Co. is the registered owner of the Bonds. Disbursements of
such payments to DTC’s Participants is the responsibility of DTC and disbursements of such
payments to the Beneficial Owners is the responsibility of DTC’s Participants and Indirect
Participants, as more fully described herein. See “APPENDIX H –BOOK ENTRY SYSTEM.”
below.
Calculation and Payment of Interest. Interest on the Bonds will be computed on the
basis of a 360-day year consisting of twelve 30-day months. Interest on the Bonds (including
the final interest payment upon maturity or earlier redemption) is payable by check of the Fiscal
Agent mailed on each Interest Payment Date by first class mail to the registered Owner thereof
at such registered Owner’s address as it appears 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 made on such Interest Payment Date upon written instructions received by
the Fiscal Agent on or before the Record Date preceding the Interest Payment Date, of any
Owner of $1,000,000 or more in aggregate principal amount of Bonds;; provided that so long as
any Bonds are in book-entry form, payments with respect to such Bonds will be made by wire
transfer, or such other method acceptable to the Fiscal Agent, to DTC. See “APPENDIX H –
BOOK ENTRY SYSTEM” below.
Each Bond will bear interest from the Interest Payment Date next preceding the date of
authentication thereof unless (i) it is authenticated on an Interest Payment Date, in which event
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it will bear interest from such 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 Dated 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. So
long as the Bonds are registered in the name of Cede & Co., as nominee of DTC, payments of
the principal, premium, if any, and interest on the Bonds will be made directly to DTC, or its
nominee, Cede & Co. Disbursements of such payments to DTC’s Participants is the
responsibility of DTC and disbursements of such payments to the Beneficial Owners is the
responsibility of DTC’s Participants and Indirect Participants, as more fully described herein.
See “APPENDIX H – BOOK ENTRY SYSTEM” below.
Redemption*
Optional Redemption. The Bonds maturing on or after September 1, 20__ are subject
to redemption prior to their stated maturities, on any date on and after September 1, 20__, in
whole or in part, at a redemption price equal to the principal amount of the Bonds to be
redeemed, together with accrued interest thereon to the date fixed for redemption, without
premium.
Mandatory Redemption From Prepayments. Special Tax Prepayments and any
corresponding transfers from the Reserve Fund pursuant to the Fiscal Agent Agreement shall
be used to redeem Bonds on the next Interest Payment Date for which notice of redemption can
timely be given under the Fiscal Agent Agreement, among maturities so as to maintain
substantially the same debt service profile for the 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 Date Redemption Price
Any Interest Payment Date on or before March 1, 20__ 103%
On September 1, 20__ and March 1, 20__ 102
On September 1, 20__ and March 1, 20__ 101
On September 1, 20__ and any Interest Payment Date thereafter 100
Mandatory Sinking Fund Redemption. The Term Bonds maturing on September 1,
20__ are subject to mandatory partial redemption in part by lot, from payments made by the City
from the Bond Fund, at a redemption price equal to the principal amount thereof to be
redeemed, together with accrued interest to the redemption date, without premium, in the
aggregate respective principal amounts all as set forth in the following table:
Mandatory Partial
Redemption Date
(September 1)
Principal Amount
Subject to Redemption
20__ $
20__
20__
20__
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20__
20__
20__
20__ (Maturity)
If some but not all of the Term Bonds have been redeemed under the optional or
extraordinary redemption provisions described above, the total amount of all future Mandatory
Partial Redemptions shall be reduced by the aggregate principal amount of Term Bonds so
redeemed, to be allocated among such Mandatory Partial Redemption Dates on a pro rata basis
in integral multiples of $5,000 as determined by the Fiscal Agent, notice of which determination
(which shall consist of a revised mandatory partial redemption schedule) shall be given by the
City to the Fiscal Agent.
Purchase In Lieu of Redemption. In lieu of optional redemption, moneys in the Bond
Fund or other funds provided by the City may be used and withdrawn by the Fiscal Agent for
purchase of Outstanding Bonds, upon the filing with the Fiscal Agent of an Officer’s Certificate
requesting such purchase, at public or private sale as and when, and at such prices (including
brokerage and other charges) as such Officer’s Certificate may provide, 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 this Agreement. Any Bonds purchased pursuant to these
provisions shall be treated as outstanding Bonds under this Fiscal Agent Agreement, except to
the extent otherwise directed by the Administrative Services Director.
Redemption Procedure by Fiscal Agent. The Fiscal Agent will cause notice of any
redemption to be mailed by first class mail, postage prepaid, at least thirty (30) days but not
more than sixty (60) days prior to the date fixed for redemption, to the Securities Depositories,
to one or more Information 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;; but such mailing shall not be a condition precedent to such
redemption and failure to mail or to receive any such notice, or any defect therein, shall not
affect the validity of the proceedings for the redemption of such Bonds.
Such notice shall state the redemption date and the redemption price and, if less than all
of the then Outstanding Bonds are to be called for redemption shall state as to any Bond called
in part the principal amount thereof to be redeemed, and shall require that such Bonds be then
surrendered at the Principal Office of the Fiscal Agent for redemption at the said redemption
price, and shall state that further interest on such Bonds will not accrue from and after the
redemption date. The cost of mailing any such redemption notice and any expenses incurred by
the Fiscal Agent in connection therewith shall be paid by the City from amounts in the
Administrative Expense Fund
The City has the right to rescind any notice of the optional redemption of Bonds by
written notice to the Fiscal Agent on or prior to the date fixed for redemption. Any notice of
redemption shall be cancelled and annulled if for any reason funds will not be or are not
available on the date fixed for redemption for the payment in full of the Bonds then called for
redemption, and such cancellation shall not constitute a default under this Agreement. The City
and the Fiscal Agent have no liability to the Owners or any other party related to or arising from
such rescission of redemption. The Fiscal Agent shall give notice of such rescission of
redemption in the same manner as the original notice of redemption was sent.
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Whenever provision is made in the Fiscal Agent Agreement for the redemption of less
than all of the Bonds, the Fiscal Agent shall select the Bonds to be redeemed, from all Bonds or
such given portion thereof not previously called for redemption, among maturities so as to
maintain substantially the same debt service profile for the Bonds as in effect prior to such
redemption, and by lot within a maturity.
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 shall have been deposited in the Bond Fund, such Bonds so called shall cease to
be entitled to any benefit under this Agreement other than the right to receive payment of the
redemption price, and no interest shall accrue thereon on or after the redemption date specified
in the notice of redemption.
Transfer or Exchange of Bonds
So long as the Bonds are registered in the name of Cede & Co., as nominee of DTC,
transfers and exchanges of Bonds will be made in accordance with DTC procedures. See
“Appendix H” below. Any Bond may, in accordance with its terms, be transferred or exchanged
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 approved by the Fiscal Agent. Whenever any Bond or Bonds are surrendered
for transfer or exchange, the City will execute and the Fiscal Agent will authenticate and deliver
a new Bond or Bonds, for a like aggregate principal amount of Bonds of authorized
denominations and of the same maturity. The cost for any services rendered or any expenses
incurred by the Fiscal Agent in connection with any such transfer or exchange will be paid by
the City. The Fiscal Agent will collect from the Owner requesting such transfer any tax or other
governmental charge required to be paid with respect to such transfer or exchange.
No transfers or exchanges of Bonds shall 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;; or (iii) between a Record Date and
the succeeding Interest Payment Date.
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ESTIMATED SOURCES AND USES OF FUNDS
A summary of the estimated sources and uses of funds associated with the sale of the
Bonds follows:
Estimated Sources of Funds:
Principal Amount of Bonds
Less/Plus Net Original Issue
Discount/Premium
Total
Estimated Uses of Funds:
Deposit to Improvement Fund
Deposit to Reserve Fund
Deposit to Bond Fund (1)
Costs of Issuance (2)
Total
(1) Represents an amount, when combined with interest earnings, is scheduled to provide
for the payment of interest on the Bonds up to and including ____1, 20__. (2) Includes Underwriter’s discount, initial fees, expenses and charges of the Fiscal Agent,
legal fees, costs of printing the Official Statement, fees of the special tax consultant,
Appraiser and Municipal Advisor, and other costs of issuance.
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SECURITY AND SOURCES OF PAYMENT FOR THE BONDS
Pledge of Special Tax Revenues
General. The Bonds are secured by a first pledge of by a first pledge (which pledge
shall be effected in the manner and to the extent provided in the Fiscal Agent Agreement) of all
of the Special Tax Revenues (other than the Special Tax Revenues to be deposited into the
Administrative Expense Fund or the Remainder Taxes Fund of the Improvement Fund pursuant
to the Fiscal Agent Agreement (as described below) and all moneys deposited in the Bond Fund
(including the Capitalized Interest Account and the Special Tax Prepayments Account) and the
Reserve Fund, and, until disbursed as provided in the Fiscal Agent Agreement, in the Special
Tax Fund. The Special Tax Revenues (other than the Special Tax Revenues to be deposited
into the Administrative Expense Fund or the Remainder Taxes Fund of the Improvement Fund
pursuant to the Fiscal Agent Agreement) and all moneys deposited into such funds (except as
otherwise provided in the Fiscal Agent Agreement) are dedicated to the payment of the principal
of, and interest and any premium on, the Bonds as provided in the Fiscal Agent Agreement and
in the Act until all of the Bonds have been paid and retired or until moneys or Federal Securities
have been set aside irrevocably for that purpose. See “–Special Tax Fund,” and “–Improvement
Fund,” below.
Amounts in the Improvement Fund (including the Remainder Taxes Fund therein), the
Administrative Expense Fund, and the Costs of Issuance Fund are not pledged to the
repayment of the Bonds. The Authorized Improvements financed by the Bonds are not pledged
to the repayment of the Bonds, nor are the proceeds of any condemnation or insurance award
received by the City with respect to the facilities authorized to be financed by the District.
Definitions. “Special Tax Revenues” is defined in the Fiscal Agent Agreement to
mean the proceeds of the Special Tax received by the City, including (a) any scheduled
payments thereof, (b) any Special Tax Prepayments, (c) the proceeds of the redemption of any
delinquent payments of the Special Tax and (d) the proceeds of redemption or sale of property
sold as a result of foreclosure on account of delinquent payments of the Special Tax, but
excluding therefrom any penalties collected in connection with any such foreclosure.
“Special Tax” or “Special Taxes” means the Special Tax (as defined in the Rate and
Method) levied by the City pursuant to the Rate and Method within Improvement Area No. 1
under the Act, the Ordinance and the Fiscal Agent Agreement. See “–Special Tax
Methodology” below and “APPENDIX A — RATE AND METHOD OF APPORTIONMENT OF
SPECIAL TAX.”
Deposit and Use of Proceeds of Bonds
The Bonds are additionally secured by amounts generated from certain proceeds of the
Bonds, together with interest earnings thereon pledged under the Fiscal Agent Agreement.
Certain proceeds of the Bonds will be paid to the Fiscal Agent, who will deposit such proceeds
in the Reserve Fund, Improvement Fund, Bond Fund and Costs of Issuance Fund established
under the Fiscal Agent Agreement. See “APPENDIX C – SUMMARY OF CERTAIN
PROVISIONS OF THE FISCAL AGENT AGREEMENT” for information on use of the moneys,
including investment earnings thereon, in the various funds established under the Fiscal Agent
Agreement. See also “–Reserve Fund” and “–Improvement Fund” below.
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Special Taxes
A Special Tax applicable to each taxable parcel in Improvement Area No. 1 will be levied
and collected according to the tax liability determined by the City Council through the application
of the Rate and Method prepared by Goodwin Consulting Group, Inc., Sacramento, California
(the “Special Tax Consultant”), which is set forth in APPENDIX A hereto, for all taxable
properties in Improvement Area No. 1. Interest and principal on the Bonds is payable from the
annual Special Taxes to be levied and collected on taxable property within Improvement Area
No. 1, from amounts held in the funds and accounts established under the Fiscal Agent
Agreement (other than the Rebate Fund, Administrative Expense Fund or the Remainder Taxes
Fund) and from the proceeds, if any, from the sale of such property for delinquency of such
Special Taxes.
The Special Taxes are collected for the City by the County of Alameda in the same
manner and at the same time as ad valorem property taxes.
The Special Taxes are exempt from the property tax limitation of Article XIIIA of the
California Constitution, pursuant to Section 4 thereof as a “special tax” authorized by a two-
thirds vote of the qualified electors. The levy of the Special Taxes was authorized by the City
pursuant to the Act in an amount determined according to the Rate and Method approved by the
City. See “Special Tax Methodology” below and “APPENDIX A — RATE AND METHOD OF
APPORTIONMENT OF SPECIAL TAX.”
The Rate and Method apportions the Special Tax Requirement (as defined in the Rate
and Method and described below) among the taxable parcels of real property within
Improvement Area No. 1 according to the rate and methodology set forth in the Rate and
Method. See “Special Tax Methodology” below. See also “APPENDIX A — RATE AND
METHOD OF APPORTIONMENT OF SPECIAL TAX.” The amount of Special Taxes that
Improvement Area No. 1 may levy in any year, and from which principal and interest on the
Bonds is to be paid, is strictly limited by the maximum rates approved by the qualified electors
within the District which are set forth as the annual “Maximum Special Tax” in the Rate and
Method. Under the Rate and Method, Special Taxes will be levied annually in an amount not in
excess of the annual Maximum Special Tax. The Special Taxes and any interest earned on the
Special Taxes once deposited in the Special Tax Fund constitute a trust fund for the principal of
and interest on the Bonds pursuant to the Fiscal Agent Agreement and, so long as the principal
of and interest on the Bonds remains unpaid, the Special Taxes and investment earnings
thereon (other than annual Remainder Taxes) will not be used for any other purpose, except as
permitted by the Fiscal Agent Agreement, and will be held in trust for the benefit of the owners
thereof and will be applied pursuant to the Fiscal Agent Agreement.
The City may annually levy the Special Tax at up to the Maximum Special Tax rate,
which has been authorized by the qualified electors within Improvement Area No. 1, as set forth
in the Rate and Method, if conditions so require, however regularly scheduled debt service on
the Bonds is payable from an amount less than that which could be generated by levy of the
Maximum Special Tax. The City has covenanted to annually levy the Special Taxes in an
amount at least sufficient to pay the Special Tax Requirement (as defined below). Because
each annual Special Tax levy is limited to the Maximum Special Tax rates authorized as set
forth in the Rate and Method, no assurance can be given that, in the event of Special Tax
delinquencies, the amount of the Special Tax Requirement will in fact be collected in any given
year. See “SPECIAL RISK FACTORS — Levy and Collection of the Special Tax” herein.
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Special Tax Methodology
The Special Tax authorized under the Act applicable to land within Improvement Area
No. 1 will be levied and collected according to the tax liability determined by the City through the
application of the appropriate amount or rate as described in the Rate and Method set forth in
“APPENDIX A — RATE AND METHOD OF APPORTIONMENT OF SPECIAL TAX.”
Capitalized terms set forth in this section and not otherwise defined have the meanings set forth
in the Rate and Method.
Parcels Subject to the Special Tax. For each Fiscal Year, the City shall (i) categorize
each Parcel of Taxable Property as Developed Property or Undeveloped Property,
(ii) categorize each Parcel of Developed Property as Single Family Detached Property, Multi-
Family Property, or Taxable Non-Residential Property, and (iii) determine if there is any Taxable
Homeowners Association Property or Taxable Public Property. For Multi-Family Property, the
number of Residential Units shall be determined by referencing the condominium or apartment
plan, site plan or other development plan.
Annual Special Tax Levy. The Special Tax levy for each Parcel will be established
annually based on the “Special Tax Requirement” which is defined as, for each Fiscal Year,
the amount necessary in any Fiscal Year (i) to pay principal and interest on Bonds which are
due in the calendar year which begins in such Fiscal Year, (ii) to create and/or replenish reserve
funds for the Bonds to the extent such replenishment has not been included in the computation
of Special Tax Requirement in a previous Fiscal Year, (iii) to cure any delinquencies in the
payment of principal or interest on Bonds which have occurred in the prior Fiscal Year, (iv) to
pay Administrative Expenses, and (v) to pay the costs of Authorized Facilities so long as the
direct payment for Authorized Facilities does not increase the Special Taxes on Undeveloped
Property. The Special Tax Requirement may be reduced in any Fiscal Year by (i) interest
earnings on or surplus balances in funds and accounts for the Bonds to the extent that such
earnings or balances are available to apply against debt service pursuant to the Indenture or
other legal document that sets forth these terms, (ii) proceeds from the collection of penalties
associated with delinquent Special Taxes, and (iii) any other revenues available to pay debt
service on the Bonds as determined by the Administrator.
Termination of the Special Tax. The Special Tax will be levied and collected for as
long as needed to pay the principal and interest on the Bonds and other costs incurred in order
to construct the Authorized Facilities and all Administrative Expenses have been paid or
reimbursed. The Rate and Method provides that the Special Tax may not be levied on any
parcel in Improvement Area No. 1 after fiscal year 2050-51.
Prepayment of the Special Tax. Landowners may permanently satisfy all or part of the
Special Tax obligation by a cash settlement with the City as permitted under Government Code
Section 53344 and in accordance with the methodology for calculation included in the Rate and
Method. Under no circumstance shall a prepayment be allowed that would reduce debt service
coverage below the Required Coverage (as defined in the Rate and Method).
Levy of Annual Special Tax;; Annual Maximum Special Tax
The annual Special Tax levy amount will be calculated by the City and levied to provide
money for debt service on the Bonds, replenishment of the Reserve Fund, anticipated Special
Tax delinquencies, administration of Improvement Area No. 1, and for payment of pay-as-you-
go expenditures of the Authorized Improvements or Authorized Facilities not funded from Bond
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proceeds. In no event may the City levy a Special Tax in any year above the annual Maximum
Special Tax rate identified in the Rate and Method. See “APPENDIX A - RATE AND METHOD
OF APPORTIONMENT OF SPECIAL TAX.”
The Special Tax will be levied in an amount at least equal to the Special Tax
Requirement as described in the Rate and Method and, during the Remainder Taxes Period,
shall be levied on Developer Property in an amount up to the maximum rates, with any Special
Taxes remaining after paying debt service on the Bonds being used to finance Authorized
Improvements. The “Remainder Taxes Period” means the period through and including the date
that is the earlier of (i) the end of the 15th Fiscal Year after which Special Taxes have been
levied on the property in Improvement Area No. 1 or (ii) the date the Project has been fully
funded.
The annual Maximum Special Tax levy for Improvement Area No. 1 ranges (based on
unit square footage) from $4,174 to $4,878 per detached single family residential unit and from
$3,273 to $4,087 per multi-family residential unit for the Fiscal Year 2015-16 base year, and in
each subsequent Fiscal Year shall be increased by an amount equal to 2% of the amount in
effect for prior Fiscal Year.
The property in Improvement Area No. 1 is also subject to an annual bonded special tax
of the City’s Community Facilities District No. 2017-1 (Dublin Crossing – Public Services) (the
“Services CFD”) which includes all of the property in Improvement Area No. 1 of the District.
For tax year 2017-18, the per-residential unit annual maximum special tax of the Services CFD
ranges from $49-$57 for single-family detached units and $38-$48 for multifamily units. The
maximum special tax in the Services CFD shall be increased on each July 1, commencing July
1, 2018, by four percent (4%) of the immediately preceding maximum amount.
See also “SECURITY AND SOURCES OF PAYMENT FOR THE BONDS — Special Tax
Methodology” above. See “APPENDIX A - RATE AND METHOD OF APPORTIONMENT OF
SPECIAL TAX” for a copy of the Rate and Method.
Limitation on Maximum Annual Special Tax Rate. 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.
In addition to the maximum annual Special Tax rate limitation in the Rate and Method,
Section 53321(d) of the Act provides that the special tax levied against any parcel for which an
occupancy permit for private residential use has been issued may not be increased as a
consequence of delinquency or default by the owner of any other parcel within a community
facilities district by more than 10% above the amount that would have been levied in such fiscal
year had there never been any such delinquencies or defaults. In cases of significant
delinquency, this limitation may result in defaults in the payment of principal of and interest on
the Bonds.
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Special Tax Fund
The Special Tax Fund is established under the Fiscal Agent Agreement as a separate
fund to be held by the Fiscal Agent, to the credit of which the Fiscal Agent shall deposit
amounts received from or on behalf of the City consisting of Special Tax Revenues and other
amounts as required by the Fiscal Agent Agreement.
Deposit of Special Tax Revenues. The City is obligated by the Fiscal Agent Agreement
to promptly remit any Special Tax Revenues received by the City to the Fiscal Agent for deposit
by the Fiscal Agent in the Special Tax Fund established under the Fiscal Agent Agreement.
Notwithstanding the foregoing:
(i) Special Tax Revenues in an amount not to exceed the lesser of (a) the amount
included in the Special Tax levy for such Fiscal Year for Administrative Expenses and (b) the
Priority Administrative Expenses Amount (described below) for such Fiscal Year shall be
separately identified by the Director of Administrative Services and shall be deposited by the
Director of Administrative Services in the Administrative Expense Fund;;
(ii) any Special Tax Revenues constituting the collection of delinquencies in
payment of Special Taxes shall be separately identified by the Administrative Services Director
and will be disposed of by the Fiscal Agent first, for transfer to the Bond Fund to pay any past
due debt service on the Bonds;; second, for transfer to the Reserve Fund to the extent needed to
increase the amount. then on deposit in the Reserve Fund up to the then Reserve Requirement;;
and third, to be held in the Special Tax Fund and used as described under "–Disbursements"
below;;
(iii) any proceeds of Special Tax Prepayments will be separately identified by the
Director of Administrative Services and will be deposited by the Fiscal Agent as follows (as
directed in writing by the Director of Administrative Services): (a) that portion of any Special Tax
Prepayment constituting a prepayment of costs of the Authorized Improvements shall be
deposited by the Fiscal Agent to the Improvement Fund and (b) the remaining Special Tax
Prepayment shall be deposited by the Fiscal Agent in the Special Tax Prepayments Account.
Moneys in the Special Tax Fund will be held by the Fiscal Agent for the benefit of the
City and the Owners of the Bonds, will be disbursed as provided below and, pending
disbursement, will be subject to a lien in favor of the Owners of the Bonds.
Disbursements. On the third Business Day before each Interest Payment Date, the
Fiscal Agent will withdraw from the Special Tax Fund and transfer the following amounts in the
following order of priority:
(i) to the Bond Fund an amount, taking into account any amounts then on deposit in
the Bond Fund and any expected transfers under the Fiscal Agent Agreement from the Reserve
Fund, the Capitalized Interest Account, the Special Tax Prepayments Account and the
Improvement Fund (including the Remainder Taxes Fund therein) to the Bond Fund, such that
the amount in the Bond Fund equals the principal (including any mandatory sinking payment),
premium, if any, and interest due on the Bonds on the next Interest Payment Date and any past
due principal or interest on the Bonds not theretofore paid from a transfer described in the Fiscal
Agent Agreement, and
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(ii) to 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.
Each calendar year, following the transfers described in the preceding paragraph for the
March 1 Interest Payment Date occurring in such calendar year, when amounts (including
investment earnings) have been accumulated in the Special Tax Fund sufficient to make the
transfers described in the preceding paragraph for the September Interest Payment Date
occurring in such calendar year, (i) the Director of Administrative Services shall, for the
Remainder Taxes Period, on September 2, direct the Fiscal Agent to transfer all moneys in the
Special Tax Fund in excess of the amounts needed for such September 1 Interest Payment
Date to the Remainder Taxes Fund of the Improvement Fund and (ii) the Director of
Administrative Services, after the Remainder Taxes Period,, during the period up to but not
including December 10 of such calendar year, may in his or her sole discretion dispose of
moneys in :the Special Tax Fund in excess of the amounts needed for such September
1Interest Payment Date as follows: (a) transfer money to the Fiscal Agent for deposit in the
Improvement Fund for payment or reimbursement of the costs of the Authorized Improvements
and (b) transfer money to the Administrative Expense Fund in an amount not to exceed the
amount included in the Special Tax levy for such Fiscal Year, after deducting the amount
deposited in the Administrative Expense Fund as described in clause (i) under “–Deposit of
Special Tax Revenues” above.
Administrative Expense Fund
Moneys in the Administrative Expense Fund shall be held by the Director of
Administrative Services for the benefit of the City, and shall be disbursed as provided below.
Under the Fiscal Agent Agreement, Special Tax Revenues in an amount not to exceed the
lesser of (a) the amount included in the Special Tax levy for such Fiscal Year for Administrative
Expenses and (b) the Priority Administrative Expenses Amount for such Fiscal Year shall be
separately identified by the Administrative Services Director and shall be deposited by the
Administrative Services Director in the Administrative Expense Fund. “Priority Administrative
Expenses Amount” means (i) for Fiscal Year 20__-__, the amount of $25,000 and (ii) for each
succeeding Fiscal Year, the sum of (A) the Priority Administrative Expenses Amount for the
preceding Fiscal Year plus (B) 2% of the Priority Administrative Expenses Amount for the
preceding Fiscal Year.
Annually, on the last day of each Fiscal Year, the Director of Administrative Services
shall withdraw from the Administrative Expense Fund and transfer to the Fiscal Agent for
deposit into the Special Tax Fund any amount in excess of that which is needed to pay any
Administrative Expenses incurred but not yet paid, and which is not otherwise encumbered.
Reserve Fund
A Reserve Fund (the "Reserve Fund") for the Bonds will be established under the
Fiscal Agent Agreement, to be held by the Fiscal Agent. Upon delivery of the Bonds, the
amount on deposit in the Reserve Fund will be established by depositing certain proceeds of the
Bonds in the amount of the "Reserve Requirement" for the Bonds, which is, as of the date of
any calculation, an amount equal to the least of (i) Maximum Annual Debt Service on the
Outstanding Bonds, (ii) 125% of average Annual Debt Service on the Outstanding Bonds and
(iii) 10% of the original principal amount of the Bonds. The City is required to maintain an
amount of money or other security equal to the Reserve Requirement in the Reserve Fund at all
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times that the Bonds are outstanding. All amounts deposited in the Reserve Fund will be used
and withdrawn by the Fiscal Agent solely for the purpose of making transfers to the Bond Fund
in the event of any deficiency at any time in the Bond Fund of the amount then required for
payment of the principal of, and interest on, the Bonds. Whenever transfer is made from the
Reserve Fund to the Bond Fund due to a deficiency in the Bond Fund, the Fiscal Agent will
provide written notice thereof to the City.
Whenever, on the Business Day prior to any Interest Payment Date, the amount in the
Reserve Fund exceeds the then applicable Reserve Requirement, the Fiscal Agent will transfer
an amount equal to the excess from the Reserve Fund to the Bond Fund or the Improvement
Fund as provided below, except that investment earnings on amounts in the Reserve Fund may
be withdrawn from the Reserve Fund for purposes of making payment to the Federal
government to comply with rebate requirements.
Moneys in the Reserve Fund will be invested and deposited in accordance with the
Fiscal Agent Agreement. Interest earnings and profits resulting from the investment of moneys
in the Reserve Fund and other moneys in the Reserve Fund will remain therein until the balance
exceeds the Reserve Requirement;; any amounts in excess of the Reserve Requirement will be
transferred to the Improvement Fund, if the Authorized Improvements have not been completed,
or if the Authorized Improvements have been completed, to the Bond Fund to be used for the
payment of the principal of and interest on the Bonds in accordance with the Fiscal Agent
Agreement.
Whenever the balance in the Reserve Fund exceeds the amount required to redeem or
pay the Outstanding Bonds, including interest accrued to the date of payment or redemption
and premium, if any, due upon redemption, and make any other transfer required under the
Fiscal Agent Agreement, the Fiscal Agent will transfer the amount in the Reserve Fund to the
Bond Fund to be applied, on the next succeeding Interest Payment Date, to the payment and
redemption of all of the Outstanding Bonds. If the amount so transferred from the Reserve
Fund to the Bond Fund exceeds the amount required to pay and redeem the Outstanding
Bonds, the balance in the Reserve Fund will be transferred to the City, after payment of any
amounts due the Fiscal Agent, to be used for any lawful purpose of the City.
Improvement Fund
Under the Fiscal Agent Agreement, there is established an Improvement Fund (and a
Remainder Taxes Fund as a subaccount therein), which is to be held by the Fiscal Agent and to
the credit of which fund deposits shall be made as required by the Fiscal Agent Agreement.
Moneys in the Improvement Fund and Remainder Taxes Fund will be disbursed as provided in
the Fiscal Agent Agreement for the payment or reimbursement of the costs of the construction
and acquisition of the Authorized Improvements in accordance with the Acquisition Agreement
(as described herein). Interest earnings from the investment of amounts in the Improvement
Fund will be retained in the Improvement Fund to be used for the purposes of the Improvement
Fund.
Upon completion of the Authorized Improvements and payment to the Developer
pursuant to the Acquisition Agreement, the City will transfer the amount, if any, remaining in the
Improvement Fund to the Fiscal Agent for deposit in the Bond Fund for application to the
payment of principal of and interest on the Bonds in accordance with the Fiscal Agent
Agreement, and the Improvement Fund (and Remainder Taxes Fund therein) will be closed.
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Delinquent Payments of Special Tax;; Covenant for Superior Court Foreclosure
The Special Tax will be collected in the same manner and the same time as ad valorem
property taxes, except at the City’s option, the Special Taxes may be billed directly to property
owners. In the event of a delinquency in the payment of any installment of Special Taxes, the
City is authorized by the Act to order institution of an action in superior court to foreclose the lien
therefor.
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 hereinafter provided, and
thereafter diligently prosecute to judgment (unless such delinquency is theretofore brought
current), an action in the Alameda County Superior Court to foreclose the lien of any Special
Tax or installment thereof not paid when due as provided in the following two paragraphs. The
Administrative Services Director shall notify the City Attorney of any such delinquency of which
the Administrative Services Director is aware, and the City Attorney shall commence, or cause
to be commenced, such proceedings.
On or about June 1 of each Fiscal Year, the Administrative Services Director shall
compare the amount of Special Taxes theretofore levied in Improvement Area No. 1 to the
amount of Special Tax Revenues theretofore received by the City, and:
(i) Individual Delinquencies. If the Administrative Services Director
determines that any single parcel subject to the Special Tax in Improvement Area
No. 1 is delinquent in the payment of Special Taxes in the aggregate amount of
$______ or more, then the Administrative Services Director shall send or cause
to be sent a notice of delinquency (and a demand for immediate payment
thereof) to the property owner within 45 days of such determination, and, if the
delinquency remains uncured, foreclosure proceedings shall be commenced by
the City within 90 days of such determination.
(ii) Aggregate Delinquencies. If the Administrative Services
Director determines that the total amount of delinquent Special Tax for the entire
Improvement Area No. 1, (including the total of delinquencies under subsection
(A) above), exceeds _________% of the total Special Tax due and payable for
the entire Improvement Area No. 1, the Administrative Services Director shall
notify or cause to be notified property owners who are then delinquent in the
payment of Special Taxes (and a demand immediate payment of the
delinquency) within 45 days of such determination, and shall commence
foreclosure proceedings within 90 days of such determination against each
parcel of land in Improvement Area No. 1 for which a Special Tax delinquency
remains uncured.
Notwithstanding the foregoing, the Administrative Services Director need not take any
such actions with respect to a delinquent parcel if (1) Improvement Area No. 1 is then
participating in the Alternative Method of Distribution of Tax Levies and Collections described in
Revenue & Taxation Code Section 4701 et seq., or an equivalent procedure, and (2) the
amount in the Reserve Fund is at least equal to the Reserve Requirement.
Under the Act, foreclosure proceedings are instituted by the bringing of an action in the
superior court of the county in which the parcel lies, naming the owner and other interested
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persons as defendants. The action is prosecuted in the same manner as other civil actions. In
such action, the real property subject to the special taxes may be sold at a judicial foreclosure
sale for a minimum price which will be sufficient to pay or reimburse the delinquent special
taxes.
The owners of the Bonds benefit from the Reserve Fund established pursuant to the
Fiscal Agent Agreement;; however, if delinquencies in the payment of the Special Taxes with
respect to the Bonds are significant enough to completely deplete the Reserve Fund, there
could be a default or a delay in payments of principal and interest to the owners of the Bonds
pending prosecution of foreclosure proceedings and receipt by the City of the proceeds of
foreclosure sales. Provided that it is not levying the Special Tax at the annual Maximum Special
Tax rates set forth in the Rate and Method, the City may adjust (but not to exceed the annual
Maximum Special Tax) the Special Taxes levied on all property within Improvement Area No. 1
subject to the Special Tax to provide an amount required to pay debt service on the Bonds and
to replenish the Reserve Fund.
Under current law, a judgment debtor (property owner) has at least 140 days from the
date of service of the notice of levy in which to redeem the property to be sold. If a judgment
debtor fails to redeem and the property is sold, his or her only remedy is an action to set aside
the sale, which must be brought within 90 days of the date of sale. If, as a result of such an
action a foreclosure sale is set aside, the judgment is revived and the judgment creditor is
entitled to interest on the revived judgment as if the sale had not been made (California Code of
Civil Procedure Section 701.680).
Foreclosure by court action is subject to normal litigation delays, the nature and extent of
which are largely dependent upon the nature of the defense, if any, put forth by the debtor and
the condition of the calendar of the superior court of the county. Such foreclosure actions can
be stayed by the superior court on generally accepted equitable grounds or as the result of the
debtor’s filing for relief under the Federal bankruptcy laws. The Act provides that, upon
foreclosure, the Special Tax lien will have the same lien priority as is provided for ad valorem
taxes and special assessments.
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 District to purchase or otherwise acquire any lot
or parcel of property foreclosed upon if there is no other purchaser at such 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% of the
outstanding Bonds is obtained. However, under Section 53356.6 of the Act, the District, as
judgment creditor, is entitled to purchase any property sold at foreclosure using a “credit bid,”
where the District 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 District becomes the purchaser
under a credit bid, the District 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
foreclosure sale.
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Additional Bonds
Following issuance of the Bonds, the City will not issue Parity Bonds (exclusive of any
Refunding Bonds) in a principal amount which, when added to the initial principal amount of the
Bonds, exceeds $46 million. Subject to that limitation, in addition to the Bonds, the City may
issue Parity Bonds in such principal amount as shall be determined by the City under a
Supplemental Agreement entered into between the City and the Fiscal Agent. Any such Parity
Bonds shall be secured by a parity lien on the Special Tax Revenues and funds pledged for the
payment of the Bonds under the Fiscal Agent Agreement on a parity with all other bonds
Outstanding under the Fiscal Agent Agreement. The City may issue such Parity Bonds subject
to the following specific conditions precedent:
(i) The City shall be in compliance with all covenants set forth in the Fiscal
Agent Agreement and all Supplemental Agreements, and issuance of the Parity Bonds
shall not cause the City to exceed the limitation on debt (as defined in the Act) for
Improvement Area No. 1.
(ii) The Supplemental Agreement providing for the issuance of such Parity
Bonds shall provide that interest thereon shall be payable on Interest Payment Dates,
and principal thereof shall be payable on September 1 in any year in which principal is
payable on the Parity Bonds (provided that there shall be no requirement that any Parity
Bonds pay interest on a current basis).
(iii) The Supplemental Agreement providing for the issuance of such Parity
Bonds may provide for the establishment of separate funds and accounts and may, in
the alternative, provide for subaccounts within the funds and accounts established
hereunder. Proceeds of the Parity Bonds shall be deposited into the Reserve Fund in
the amount that shall cause the balance in the Reserve Fund to be equal to the Reserve
Requirement for the Bonds to be outstanding following issuance of the Parity Bonds.
(iv) The Improvement Area No. 1 Value shall be at least three (3) times the
sum of: (i) the aggregate principal amount of all Bonds then Outstanding, plus (ii) the
aggregate principal amount of the series of Parity Bonds proposed to be issued, plus (iii)
the aggregate principal amount of any fixed assessment liens on the parcels in the CFD
subject to the levy of Special Taxes, plus (iv) a portion of the aggregate principal amount
of any and all other community facilities district bonds then outstanding and payable at
least partially from special taxes to be levied on parcels of land within the CFD (the
“Other District Bonds”) equal to the aggregate outstanding principal amount of the Other
District Bonds multiplied by a fraction, the numerator of which is the amount of special
taxes levied for the Other District Bonds on parcels of land within the CFD, and the
denominator of which is the total amount of special taxes levied for the Other District
Bonds on all parcels of land against which the special taxes are levied to pay the Other
District Bonds (such fraction to be determined based upon the maximum special taxes
which could be levied in the year in which maximum annual debt service on the Other
District Bonds occurs), based upon information from the most recent Fiscal Year for
which information is available.
(v) For each Fiscal Year after issuance of the Parity Bonds, the maximum
amount of the Special Taxes that may be levied for such Fiscal Year under the
Ordinance, the Agreement and any Supplemental Agreement less the Priority
Administrative Expense Amount for each respective Fiscal Year, shall be at least 110%
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of the total Annual Debt Service of the then Outstanding Bonds and the proposed Parity
Bonds for each Bond Year that commences in each such Fiscal Year, and the aggregate
Special Tax Prepayments that could occur after the issuance of the Parity Bonds shall
be not less than the principal amount of the Outstanding Bonds and the proposed Parity
Bonds.
Notwithstanding the foregoing, the City may issue refunding bonds as Parity Bonds
without the need to satisfy the requirements of clauses (iv) or (v) above.
Nothing in the Fiscal Agent Agreement prohibits the City from issuing any other bonds or
otherwise incurring debt secured by a pledge of the Special Tax Revenues subordinate to the
pledge thereof for the Bonds and Parity Bonds.
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DEBT SERVICE SCHEDULE
The annual debt service on the Bonds, based on the interest rates and maturity
schedule set forth on the cover of this Official Statement, is set forth below.
Improvement Area No. 1
Community Facilities District No. 2015-1 (Dublin Crossing)
Special Tax Bonds Series 2017
Debt Service
Year
Ending
(Sept. 1)
Principal
Interest
Total
* Paid from capitalized interest.
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THE DUBLIN CROSSING PROJECT
The Developer has provided the following information with respect to development of the
Dublin Crossing Project. No assurance can be given that all information is complete. No
assurance can be given that development of the property will be completed, or that it will be
completed in a timely manner. Since the ownership of the parcels is subject to change, the
development plans outlined below may not be continued by the subsequent owner if the parcels
are sold, although development by any subsequent owner will be subject to the Development
Agreement and the policies and requirements of the City. No assurance can be given that the
plans or projections detailed below will actually occur.
The property in Improvement Area No. 1 is part of the larger Dublin Crossing project
(“Dublin Crossing Project”). The Dublin Crossing Project consists of approximately 190 acres,
of which approximately 33 gross acres (28 net taxable acres) is within Improvement Area No. 1
and the remainder, approximately 157 acres, is within property identified as Future Annexation
Area.
Dublin Crossing Specific Plan
The Dublin Crossing Specific Plan (“Specific Plan”), as amended from time to time, is a
plan for the orderly development of approximately 190 acres located in the center of the City,
north of Interstate 580 and Dublin Boulevard. The site is located at the southern edge of the
2,485-acre Camp Parks Reserve Forces Training Area (“Camp Parks”). The U.S. Army
Reserve (the “Army Reserve”) and the Developer have an agreement whereby the Army
Reserve has and will transfer the Specific Plan portions of the Camp Parks site to the
Developer, as described below.
Development in the Specific Plan area is generally planned to be comprised of
residential units, parks and open space, and a school. Specifically, Specific Plan development
includes a maximum of up to 1,995 residential units, a 30 net-acre Community Park, 2 acres of
open space, and a school site. The Specific Plan also allows, but nothing requires, the
development of up to 200,000 square feet of commercial use. The Developer does not currently
intend to develop any commercial uses.
The Specific Plan area is generally flat and buildable, with homes currently under
construction and a significant portion undeveloped. Two seasonal drainage channels traverse
the site, one north to south generally through the middle of the project site, and another along
the eastern border, parallel to Arnold Road.
The City of Dublin General Plan (1985) provides a broader city-wide framework to
support future land use and development decisions in the Specific Plan area. California state
law requires this Specific Plan to be consistent with the policies and standards contained in the
General Plan. Together with the Specific Plan, the City will approve any necessary General Plan
amendments to provide for the land uses, goals and policies in this Specific Plan. In situations
where policies or standards relating to a particular subject have not been provided in the
Specific Plan, the existing policies and standards in the General Plan will continue to apply.
Regional Setting. The Specific Plan area is located in eastern Alameda County, near
the center of the Tri-Valley region. As a part of the Eastern San Francisco Bay Area, the City of
Dublin plays an important regional role due to its close proximity to major metropolitan centers,
including San Francisco (35 miles northwest), Oakland (30 miles northwest) and Silicon Valley
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(25 miles southwest). The City is home to the Dublin/Pleasanton and West Dublin/Pleasanton
Bay Area Rapid Transit (BART) stations, Interstates 580 and 680, and the Iron Horse Regional
Trail, a multi-modal trail that links numerous cities within Alameda and Contra Costa counties.
Local Setting. The approximate 190 acre Specific Plan area is centrally located in the
City of Dublin and is bound by a network of streets;; 5th and 6th street to the north on the active
Camp Parks installation, Arnold Road to the east, Dublin Boulevard to the south and Scarlett
Drive (with future extension) to the west. The Specific Plan area location adjacent to the Iron
Horse Regional Trail, and close to the Dublin/Pleasanton BART station, with the station
entrance approximately one-third mile to the south of the project area boundary, offer a possible
amenity for urban oriented buyers.
Background-Reuse of Former Army Reserve Property. This Specific Plan is the
result of a multi-year effort by the Army Reserve, the City, community members, and the Prior
Owner to create a plan for development of the Specific Plan area.
In 2002, the Army Reserve formally requested an amendment to the General Plan to
change the land use designation on the project site from “Public Lands” to a combination of
commercial retail, office space, residential, and open space uses. On April 15, 2003, the Dublin
City Council authorized the commencement of a General Plan Amendment study to initiate a
comprehensive General Plan Amendment and Specific Plan program over a 172-acre portion of
the 2,485-acre Camp Parks area (the “Army Reserve Property”), a 8.5-acre NASA parcel (the
“NASA Property”), and an 8.7-acre Alameda County Surplus Property Authority parcel (the
“ACSPA Property”).
The General Plan Amendment study did not authorize a change in the land use
designation on the property but permitted City Staff, in partnership with the Army Reserve, to
engage the involvement of the community in several strategic visioning meetings. These
meetings were used to create a cohesive vision for future development of the site. Based on the
information provided from several community meetings, five conceptual land use plans, each
illustrating different land use scenarios, were formulated. The City Council held a series of
meetings in 2005 to review the five conceptual land use alternatives. Input from these meetings
served as the basis for selecting a preferred land use plan for future development of the area.
In December 2007 the Army Reserve and NASA prepared a “Notice of Availability” to
solicit a master developer for the Camp Parks Real Property Exchange Area. The Prior Owner
and the United States Army Corps of Engineers entered into an exchange agreement dated
March 4, 2011 (the “Exchange Agreement”), The Exchange Agreement provides the Army
Reserve with an opportunity to construct new and modernize existing facilities through the
provision of 172-acres of the Army Reserve Property (in addition to the NASA Property and the
ACSPA Property), to a developer in exchange for Camp Parks facilities improvements. The
Exchange Agreement is not a part of the Specific Plan but was necessary to facilitate
acquisition of the property by the Prior Owner.
In October 2008, the Army Reserve announced the selection of the master developer for
the exchange project. In April 2011, the Prior Owner and the Army Reserve officially finalized
the Exchange Agreement, authorizing the Prior Owner to commence the General Plan
Amendment and Specific Plan process and giving the Prior Owner the right acquire the Army
Reserve Property in phases, as certain facilities (located outside of the Dublin Crossing Project)
are constructed by the developer and conveyed to the Army Reserve.
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Pursuant to the Exchange Agreement, the Prior Owner and the Army Reserve agreed
that the Prior Owner has the right acquire the Army Reserve Property from the Army Reserve in
phases, as certain facilities (located outside of the Dublin Crossing Project) are constructed by
the Prior Owner and conveyed to the Army Reserve. When purchasing property from the Prior
Owner, the Developer assumed all rights and obligations under the Exchange Agreement. The
Prior Owner and, following its acquisition of the project, the Developer acquired portions of the
Army Reserve Property, as described in Table __ herein. The property in Phases 3-5 remains
owned by the Army Reserve but subject to acquisition by the Developer pursuant to the
Exchange Agreement.
In addition to the Exchange Agreement, the Prior Owner entered into an agreement
dated January 11, 2013 (the “NASA Agreement”) with the National Aeronautics and Space
Administration (“NASA”) for the purchase of the NASA Property located adjacent to the Army
Reserve Property, which will be part of Phase 2 of the Dublin Crossing Project. When
purchasing property from the Prior Owner, the Developer assumed all rights and obligations
under the NASA Agreement. On August 28, 2015, the Developer acquired the NASA Property.
In addition to the Exchange Agreement and the NASA Agreement, the Prior Owner
entered into an agreement with the City (the “City Agreement”) for the purchase of the ACSPA
Property, which will be part of Phase 2 of the Dublin Crossing Project. When purchasing
property from the Prior Owner, the Developer assumed all rights and obligations under the City
Agreement. On March 23, 2017, the Developer acquired the ACSPA Property.
The Army Reserve Property, the NASA Property, and the ACSPA Property, collectively,
comprise the property to be developed as the Dublin Crossing Project. All such property is
subject to the Development Agreement, dated November 19, 2013, by and between the City
and the Prior Owner (as amended from time to time, the “Development Agreement”). The
Development Agreement allows for the construction of up to 1,995 residential units, a 30 net
acre community park, open space, a school site, and associated infrastructure to serve the
project area described in the Dublin Crossing Specific Plan, approved by the City in 2013
pursuant to Resolution No. 187-13. The Development Agreement also allows, but nothing
requires, the development of up to 200,000 square feet of commercial use. The Developer
does not currently intend to develop any commercial uses. The Development Agreement may
be amended from time to time, most recently on May 16, 2017 to, among other things, revise
the park construction obligation.
In 2015, the Developer acquired from the Prior Owner certain property in the Dublin
Crossing Project (including all of Phase 1A) as well as the rights to develop the remainder of the
property in the Dublin Crossing Project. On August 28, 2015, the Prior Owner assigned the
Development Agreement to the Developer, and the Developer assumed all of the rights and
obligations under the Development Agreement.
The Exchange Agreement provides for the acquisition of the property in six phases, as
follows:
A. Phase 1A: Phase 1A was acquired from the Army Reserve by the Prior
Owner and was sold by the Prior Owner to the Developer on August 28, 2015. As
consideration for the acquisition from the Army Reserve, the Prior Owner constructed a
facility known as the Access Control Point.
B. Phase 1B: Phase 1B was acquired from the Army Reserve by the Developer
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on October 19, 2016. As consideration for the acquisition from the Army Reserve, the
Developer constructed various infrastructure roads and utilities for the Army Reserve.
C. Phase 2: Phase 2 was acquired in three transactions. First, a portion of
Phase 2 was acquired from the Army Reserve by the Developer on March 17, 2017. As
consideration for the acquisition from the Army Reserve, the Developer constructed area
maintenance support facilities. Second, the NASA Property was acquired by the
Developer on August 28, 2015. Third, on March 23, 2017, the Developer acquired the
ACSPA Property.
D. Phase 3: Phase 3 is anticipated to be acquired from the Army Reserve by
the Developer in June, 2018 following the completion of a regional medical training site
estimated to cost $17,122,000.
E. Phase 4: Phase 4 is anticipated to be acquired from the Army Reserve by the
Developer in December, 2017 following the completion of, or posting security for, the
completion of an army regional training center estimated to cost $10,284,000.
F. Phase 5: Phase 5 is anticipated to be acquired from the Army Reserve by the
Developer in June, 2018 following the completion of a logistical warehouse estimated to
cost $11,115,000.
The Developer anticipates developing each phase of the Dublin Crossing Project
following acquisition of the phase from the Army Reserve. No guarantee can be given that
the Developer will acquire any future phases of the property from the Army Reserve: If
acquired, the Developer anticipates developing the property in five phases, as described in the
Development Agreement and as follows:
1. Phase 1A/1B: Phase 1A is expected to consist of 313 single-family units (69
detached and 244 attached). At the time of formation of the District, Phase 1A was the
only property in Improvement Area No. 1. Phase 1B is expected to consist of 140
single-family units (60 detached and 80 attached). At the time of formation of the
District, Phase 1B was part of the Future Annexation Area. On June 20, 2017, the
owners of Phase 1B (CalAtlantic and Brookfield Fillmore LLC) submitted consents to the
City for the annexation of their respective Phase 1B property into Improvement Area No.
1, and Phase 1B is now part of Improvement Area No. 1.
2. Phase 2: Phase 2 is expected to consist of 508 single-family units (134
detached and 374 attached) and a portion of the 30-acre public park. The Developer is
also constructing a 15,000 square foot recreation center that will eventually be owned by
the homeowner’s association;; the cost is estimated at $11 million and is anticipated to
be opened in 2019.
3. Phase 3: Phase 3 is expected to consist of 283 single-family units (77
detached and 206 attached), a portion of the 30-acre public park, and a school site.
4. Phase 4: Phase 4 is expected to consist of 166 single-family units (75
detached and 91 attached) and approximately 2 acres of open space.
5. Phase 5: Phase 5 is expected to consist of 340 single-family units (162
detached and 178 attached).
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Following the annexation of Phase 1B, Improvement Area No. 1 comprises the expected
453 lots in both Phase 1A and Phase 1B. The remaining phases are part of the Future
Annexation Area and are not, and will not be, subject to the Special Tax securing the Bonds.
The table below shows the expected phases within the Dublin Crossing Project and
expected construction commencement dates.
STATUS OF CONSTRUCTION OF THE DUBLIN CROSSING PROJECT
Phase/Projected
Improvement
Area
Projected
Land Development Tract Map Status
Projected
Schedule
Phase 1A/1B
Improvement
Area No. 1
129 single-family detached
units;; and 324 single-family
attached units
See Table __ Finished lots by early 2016,
housing construction commenced
mid-2016
Phase 2
Improvement
Area No. 2
134 single-family detached
units;; 374 single-family
attached units;; and a portion
of the 30-acre park;; the
Developer is also constructing
a 15,000 square foot
recreation center that will
eventually be owned by the
homeowner’s association (est.
cost $11 million)
Large Lot Only Lots and housing commencement
subject to housing market;; sheet
graded pads projected to be
delivered in 2017
Phase 3
Improvement
Area No. 3
77 single-family detached
units;; 206 single-family
attached units;; a portion of the
30-acre park;; and a school site
N/A Acquisition from Army Reserve in
June 2018;; Lots and housing
commencement subject to housing
market.
Phase 4
Improvement
Area No. 4
75 single-family detached
units;; 91 single-family
attached units;; and
approximately 2 acres of open
space
N/A Acquisition from Army Reserve in
December 2017;; Lots and housing
commencement subject to housing
market.
Phase 5
Improvement
Area No. 5
162 single-family detached
units;; and 178 single-family
attached units
N/A Acquisition from Army Reserve in
June 2018;;
Lots and housing commencement
subject to housing market.
Only the property in Improvement Area No. 1 (Phase 1A and Phase 1B) is subject
to the Special Tax that secures payment on the Bonds. The property that is anticipated
to be developed as Phases 2-5, inclusive, are not subject to the lien of the Special Tax
and will not be subject to a special tax securing the Bonds in the future.
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Public Improvements Required for the Dublin Crossing Project
CFD Authorized Improvements. The following table shows the improvements and fees
authorized for financing in the District and in Improvement Area No. 1 (each Improvement Area
is authorized to finance any of the improvements described below), as well as the estimated
costs of such facilities and fees required to be constructed as part of the Dublin Crossing Project
as a whole (first column of figures) and for Phases 1A/1B (second column of figures). Cost
estimates are as of June 1, 2017.
ESTIMATED INFRASTRUCTURE COSTS
City of Dublin Improvements
Estimated Cost
for Dublin
Crossing Project
Estimated Cost for
Phase 1A and
Phase 1B
Backbone Storm Drainage $17,099,530 $3,956,330
Backbone Street Improvements $25,505,760 $4,391,450
Master Landscaping, Fencing and Signage on Public
Property, Including Public Easements and Rights-of-Way
$4,733,120 $799,430
City of Dublin Capital Impact Fees (including capital
impact fees for fire improvements, freeway interchanges,
public art, traffic impacts, development agreement
improvements, trails, parks, transportation, ACSPA
contributions, civic center, library, and aquatic centers)
$39,376,952 $11,847,134
Dublin-San Ramon Sanitation District Improvements
Backbone Domestic Water $2,686,670 $753,720
Backbone Reclaimed Water $1,702,270 $478,490
Backbone Sanitary Sewer $2,560,330 $728,770
Dublin-San Ramon Sanitation District Fees (including
fees for DSRSD impacts, water meter assembly, wastewater
capacity reserves, irrigation connections, plan check and
inspection)
$53,817,026 $13,740,675
Zone 7 Improvements
Backbone Storm Drainage $2,512,750 $0
Zone 7 Fees (including fees for water connection and
drainage assessment)
$50,123,500 $12,974,826
Public Utility Facilities Improvements $6,111,230 $1,598,730
Park Design and Improvements $12,757,000 $0
Totals $218,986,138 $51,269,555
Of the District-eligible costs set forth above for the Dublin Crossing Project,
approximately $95,636,600 is the responsibility of the Developer, while approximately
$123,349,538 is (or will be) the responsibility of the Merchant Builders.
In addition to the District-eligible costs for the Dublin Crossing Project, the Dublin
Crossing Project requires the expenditure of approximately $________ in non-District eligible
costs, $________ of which is the responsibility of the Developer and $________ the
responsibility of the Merchant Builders.
Of the total amounts required to be expended by the Developer for the Dublin Crossing
Project, the Developer has expended $__________ and the Merchant Builders have expended
approximately $________, all as of June 1, 2017.
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Acquisition Agreement
In connection with the formation of the District, the Developer and the City entered into
an Acquisition Agreement, dated as of ________, 2017 (the “Acquisition Agreement”).
Pursuant to the Acquisition Agreement, the City will purchase certain public capital
improvements and finance certain development impact fees for the construction of public capital
improvements (together, the “Authorized Improvements”) from the Developer, but solely from
the net proceeds of bonds issued for the District, certain investment earnings thereon and
special taxes collected within each Improvement Area of the District that are allocated to
Authorized Improvements. The Authorized Improvements shown in Table __ represent
approximately $_______ of the $_____ expected costs for the Dublin Crossing Project. When
the Developer has completed an Authorized Improvement, it may submit payment requisition to
the City requesting payment of its “Actual Costs” incurred (as defined in the Acquisition
Agreement). The City will determine if the Authorized Improvement thereof has been completed
to City standards and whether all required documentation, such as proper conveyance of title
(where that is required), lien releases, title insurance, etc. has been submitted. If the City so
determines, the City will review the payment requisition, and may request additional information
to substantiate the requisition, and may disallow portions not properly substantiated. To the
extent the payment requisition is approved by the City, the City will submit a disbursement
request form to the Fiscal Agent, requesting the Fiscal Agent to make payment for the approved
costs to the extent funds are available in the Improvement Fund. For capital improvement fees
that are part of the Authorized Improvements, such fees will be paid out of the proceeds of the
Bonds through a similar requisition process as described above.
The net proceeds of the Bonds, certain investment earnings thereon and the Special Tax
are expected to be sufficient to fund a portion, but not all, of the Authorized Improvements.
The Developer anticipates that bond proceeds from the property in future phases of the
Dublin Crossing Project, revenues from land sales, and Developer’s equity will be used to fund
some or all of the remaining portion of the Authorized Improvements.
The Rate and Method provides that the funding of Improvement costs can also be made
from collections of the Special Tax available as the “pay-as-you-go” component of Special
Taxes. The pay-as-you-go funding component could provide for funding of the cost of the
Authorized Improvements in excess of the amount provided from Bond proceeds and through
annual Special Tax collections in excess of the amount needed to pay the debt service. By
agreement between the City and the Developer, this component of the Special Tax is expected
to be limited to 15 years from each Improvement Area and the Developer expects to utilize it for
that time period. See “SECURITY AND SOURCES OF PAYMENT FOR THE BONDS – Special
Tax Methodology” and “ – Special Tax Fund.”
Market Pricing and Absorption Analysis
In connection with the issuance of the Bonds, the City hired Robert Charles Lesser &
Co., LLC, Los Angeles, California (the “Pricing Consultant”) to prepare a market pricing and
absorption analysis for the homes planned for Phase 1 of the residential development program
in the District, dated April 28, 2017 (the “Pricing Report”). Phase 1 consists of 453 homes (129
single-family detached units and 324 single-family attached units). The City is not obligated to
make, and has not undertaken to make, an independent verification of the information contained
in the Original Price Point Study and assumes no responsibility for the accuracy or
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completeness of the Original Price Point Study. A copy of the Pricing Report is set forth in its
entirety as APPENDIX E - PRICING REPORT.
IMPROVEMENT AREA NO. 1
Formation of the District
On April 21, 2015, the City Council adopted a Resolution of Intention to form a
community facilities district under the Act, to levy a special tax and to incur bonded
indebtedness for the purpose of financing the Authorized Improvements. After conducting a
noticed public hearing, on June 2, 2015, the City Council adopted the Resolution of Formation,
which established the District and Improvement Area No. 1 thereof, and designated the Future
Annexation Area, which may include all or a portion of four additional improvement areas
described as Improvement Area No. 2, Improvement Area No. 3, Improvement Area No. 4, and
Improvement Area No. 5. The Resolution of Formation also set forth the Rate and Method within
the District and each Improvement Area, and set forth the necessity to incur bonded
indebtedness in a total amount not to exceed $150 million for the District and as follows for each
Improvement Area: $46 million for Improvement Area No. 1, $34 million for Improvement Area
2, $23 million for Improvement Area 3, $12 million for Improvement Area 4 and $35 million for
Improvement Area 5. On the same day, an election was held within the District in which the
Prior Owner (who was then the only eligible landowner voter in the District) unanimously
approved the proposed bonded indebtedness and the levy of the Special Tax. See
“IMPROVEMENT AREA NO. 1 - Improvement Area No. 1 Ownership” below.
To finance Authorized Improvements that will be owned by the Dublin-San Ramon
Services District (“DSRSD”), the City, the Developer, and DSRSD entered into a Joint
Community Facilities Agreement dated January 10, 2017.
To finance Authorized Improvements to be owned by Zone 7 of the Alameda County
Flood Control and Water Conservation District (“Zone 7”), the Developer anticipates entering
into a Joint Community Facilities Agreement with the City and Zone 7 before the end of calendar
year 2017. Until a Joint Community Facilities Agreement is entered into with Zone 7, Authorized
Facilities to be owned by Zone 7 may not be financed with the proceeds of any bonds issued by
the District. None of the Authorized Improvements to be financed with the Bonds are to be
owned by Zone 7.
Future Annexation Area. Land within the Future Annexation Area will be annexed into
an Improvement Area of the District and a special tax will be levied on such territory only with
the unanimous approval of the owner or owners of each parcel or parcels at the time of
annexation into the respective Improvement Area, whereupon a special tax will become a
continuing lien against all non-exempt real property in the annexed portion of the Future
Annexation Area.
Bonds for each Improvement Area will be secured by special taxes only from such
respective Improvement Area. Additional bonds for Improvement Area No. 1 are expected to be
issued in the future, subject to the conditions set forth in the Fiscal Agent Agreement. Special
taxes of each Improvement Area will secure only bonds issued by that respective Improvement
Area.
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Location and Description of Improvement Area No. 1 and the Immediate Area
Improvement Area No. 1 is generally located at the northwest quadrant of Dublin
Boulevard and Arnold Road;; Phases 1A and 1B are noncontiguous with Phase 1A along the
north line of Dublin Boulevard between Fernandez Street and Keppler Street and Phase 1B
along the west line of Arnold Road and the south line of 6th Street.
Improvement Area No. 1 is in the immediate vicinity of the Dublin BART (Bay Area Rapid
Transit) station and neighborhood and regional commercial establishments, including Whole
Foods, Nordstrom Rack, Best Buy and a variety of smaller retail stores and restaurants. The
development is near multiple off-ramps of Interstate 580, a major Bay Area freeway. Other
adjacent uses include residential, office and light industrial, and a County jail facility to the north.
Zoning. The land in Improvement Area 1 is zoned Dublin Crossing Medium-High Density
Residential (DC M-HDR), Dublin Crossing Medium Density Residential (DC MDR), and General
Commercial/Dublin Crossing High Density Residential (GC/DC HDR). See “THE DUBLIN
CROSSING PROJECT” above.
Seismic Area. According to the Seismic Safety Commission, Improvement Area No. 1 is
located within Zone 4, which is considered to be the highest risk zone in California. There are only
two zones in California: Zone 4, which is assigned to areas near major faults;; and Zone 3, which is
assigned to all other areas of more moderate seismic activity. In addition, the District is located in a
Fault-Rupture Hazard Zone (formerly referred to as an Alquist-Priolo Special Study Zone), as
defined by Special Publication 42 (revised January 1994) of the California Department of
Conservation, Division of Mines and Geology.
Flood Zone Status. Improvement Area No. 1 is located in Flood Zone X – areas
determined to be outside of the 500-year floodplain and determined to be outside of the 1% and
0.2% annual chance floodplains.
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[Reserved for boundary map]
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[Reserved for Aerial Overview Map]
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Improvement Area No. 1 Ownership
The property in Improvement Area No. 1 is expected to be developed into 129 single-
family detached units and 324 single-family attached units and is owned as follows:
OWNERSHIP OF PROPERTY IN IMPROVEMENT AREA NO. 1
Owner Neighborhood Phase Tract
Number of Projected
Units
Dublin Crossing, LLC Huntington 1A 8375 24
Brookfield Merchant Builders:
Brookfield Bay Area Holdings LLC Huntington 1A 8308 45
Brookfield Wilshire LLC Wilshire 1A 8307 75
Brookfield Fillmore LLC Fillmore 1B 8309 80
CalAtlantic:
CalAtlantic Group, Inc. Madison 1A 8306 107
CalAtlantic Group, Inc. Union 1A 8306 62
CalAtlantic Group, Inc. Sunset 1B 8309 60
Tract Map Status
The proposed 453 single family lots were created by the following maps:
TRACT MAP STATUS IN IMPROVEMENT AREA NO. 1
Map Date Recorded/To Be Recorded Number of Lots
Tract 8375 5/27/16 24
Tract 8309 4Q 2017 140
Tract 8308 2/7/17 45
Tract 8307 2/15/17 75
Tract 8306 2/17/17 169
Totals 453
The Merchant Builders
The Developer has entered into agreements with builders that are affiliated with
Brookfield Residential and CalAtlantic. In particular, the Developer sold property to (i)
Brookfield BAH, Brookfield Wilshire LLC, and Brookfield Fillmore LLC, all wholly-owned
subsidiaries of Brookfield Residential (herein, the “Brookfield Merchant Builders”), as
described in more detail herein, and (ii) CalAtlantic (herein, and together with the Brookfield
Merchant Builders, the “Merchant Builders”), as described in more detail herein. The 24 lots in
Improvement Area No. 1 owned by the Developer are anticipated to be sold to Brookfield BAH
in the fourth quarter of 2017 for development as part of the Huntington neighborhood.
As of June 1, 2017, 81 single family detached and attached homes were under
construction by the Merchant Builders and the remaining 372 lots owned by the Developer or
the Merchant Builders were in finished lot or blue top lot condition with building permits yet to be
obtained. As of June 1, 2017, no homes within the District were sold and under contract to
individual homebuyers.
The Development Plan
A more detailed description of each of the neighborhoods is set forth below.
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Huntington Neighborhood. Brookfield BAH is building and selling homes within the
“Huntington” neighborhood within Improvement Area No. 1. The homes are expected to consist
of 69 detached single-family residential units (24 lots are still owned by Dublin Crossing, LLC as
of June 1, 2017). The Huntington neighborhood will open for sales in August 2017, and
Brookfield BAH anticipates final build-out by December 2018. The following tables provide
additional information regarding the development of the Huntington project as of June 1, 2017
Huntington Neighborhood
(Tract No. 8308)
(as of June 1, 2017)
Floor Plan
Square
Footage
Total
Number of
Planned
Units
Units
Completed,
Sold, and
Closed
Units
Completed
and Unsold
or in Escrow
Units Under
Construction (1)
Base
Price (2)
Plan 1 2,424 15 0 0 4 $1,016,000
Plan 2 2,541 13 0 0 3 $1,033,000
Plan 3 2,691 17 0 0 4 $1,058,000
Totals 45 11
____________________
(1) In addition, Brookfield BAH anticipates the construction of 3 model homes, all of which are under construction as of
June 1, 2017.
(2) Base sale prices are as of June 1, 2017. Base sales prices are subject to change and exclude any lot premiums,
options, upgrades, incentives and any selling concessions or price reductions which may be offered.
Source: Brookfield BAH
As of June 1, 2017, Brookfield BAH has incurred approximately $16,163,000 on site
acquisition, on-site development costs, fees, and costs (other than homebuilding, sales and
marketing costs) and anticipates that an additional $8,917,000 will be required to be expended
on such costs to complete the neighborhood. As of June 1, 2017, Brookfield BAH has spent
$795,000 on home construction, sales and marketing, and anticipates spending an additional
$19,717,000 to buildout the 45 homes it currently anticipates building. These costs do not
include the expected costs to develop the 24 homes that Brookfield BAH expects to build once
Brookfield BAH acquires the remaining 24 lots from Dublin Crossing.
Wilshire Neighborhood. Brookfield Wilshire LLC is building and selling homes within
the “Wilshire” neighborhood within Improvement Area No. 1. The homes are expected to consist
of 75 attached single-family residential units. The Wilshire neighborhood is anticipated to open
for sales in March, 2018, and Brookfield Wilshire LLC anticipates final build-out by June, 2019.
The following tables provide additional information regarding the development of the Wilshire
project as of June 1, 2017
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Wilshire Neighborhood
(Tract No. 8307)
(as of June 1, 2017)
Floor Plan
Square
Footage
Total
Number
of
Planned
Units
Units
Completed,
Sold, and
Closed
Units
Completed
and Unsold
or in Escrow
Units Under
Construction (1)
Base
Price (2)
Plan 1 1,659 15 0 0 0 $762,000
Plan 2 1,623 15 0 0 0 $772,000
Plan 3 1,694 5 0 0 0 $772,000
Plan 4 2,071 10 0 0 0 $812,000
Plan 5 2,063 10 0 0 0 $817,000
Plan 6 1,756 10 0 0 0 $727,000
Plan 7 3,097 10 0 0 0 $925,000
Totals 75
____________________
(1) In addition, Brookfield BAH anticipates the construction of 4 model homes.
(2) Base sale prices are as of June 1, 2017. Base sales prices are subject to change and exclude any lot premiums,
options, upgrades, incentives and any selling concessions or price reductions which may be offered.
Source: Brookfield BAH
As of June 1, 2017, Brookfield Wilshire has incurred approximately $18,969,000 on site
acquisition, on-site development costs, fees, and costs (other than homebuilding, sales and
marketing costs) and anticipates that an additional $13,513,000 will be required to be expended
on such costs to complete the neighborhood. As of June 1, 2017, Brookfield Wilshire has spent
$280,000 on home construction, sales and marketing, and anticipates spending an additional
$28,075,000 to buildout the 75 homes it currently anticipates building.
Fillmore Neighborhood. Brookfield Fillmore LLC is building and selling homes within
the “Fillmore” neighborhood within Improvement Area No. 1. The homes are expected to consist
of 80 attached single-family residential units. The Fillmore neighborhood is anticipated to open
for sales in March 2018, and Brookfield Fillmore LLC anticipates final build-out by December,
2019. The following tables provide additional information regarding the development of the
Fillmore project as of June 1, 2017
Fillmore Neighborhood
(Tract No. 8309)
(as of June 1, 2017)
Floor Plan
Square
Footage
Total
Number
of
Planned
Units
Units
Completed,
Sold, and
Closed
Units
Completed and
Unsold or in
Escrow
Units Under
Construction (1)
Base
Price (2)
Plan 1 1,548 12 0 0 0 $710,000
Plan 2 2,171 19 0 0 0 $830,000
Plan 3 2,308 25 0 0 0 $854,000
Plan 4 2,642 24 0 0 0 $879,000
Totals 80
____________________
(1) In addition, Brookfield BAH anticipates the construction of 3 model homes.
(2) Base sale prices are as of June 1, 2017. Base sales prices are subject to change and exclude any lot premiums,
options, upgrades, incentives and any selling concessions or price reductions which may be offered.
Source: Brookfield BAH
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As of June 1, 2017, Brookfield Fillmore has incurred approximately $16,893,000 on site
acquisition, on-site development costs, fees, and costs (other than homebuilding, sales and
marketing costs) and anticipates that an additional $20,065,000 will be required to be expended
on such costs to complete the neighborhood. As of June 1, 2017, Brookfield Fillmore has spent
$178,000 on home construction, sales and marketing, and anticipates spending an additional
$24,584,000 to buildout the 80 homes it currently anticipates building.
Madison Neighborhood. CalAtlantic is building and selling homes within the “Madison”
neighborhood within Improvement Area No. 1. The homes are expected to consist of 107
attached single-family residential units. The Madison neighborhood is expected to open for
sales in June 2017, and CalAtlantic anticipates final build-out by __________, 20__. The
following tables provide additional information regarding the development of the Madison project
as of June 1, 2017
Madison Neighborhood
(Tract No. 8306)
(as of June 1, 2017)
Floor Plan
Square
Footage
Total
Number
of
Planned
Units
Units
Completed,
Sold, and
Closed
Units
Completed and
Unsold or in
Escrow
Units Under
Construction (1)
Base
Price (2)
Plan 1 1,337 25 0 0 21 $650,000
Plan 2 1,719 25 0 0 21 $785,000
Plan 3 1,982 26 0 0 3 $830,000
Plan 4 2,112 31 0 0 6 $840,000
Totals 107 51
____________________
(1) In addition, CalAtlantic anticipates the construction of __ model homes.
(2) Base sale prices are as of June 1, 2017. Base sales prices are subject to change and exclude any lot premiums,
options, upgrades, incentives and any selling concessions or price reductions which may be offered.
Source: CalAtlantic
As of June 1, 2017, CalAtlantic has incurred approximately $24,894,617 on site
acquisition, on-site development costs, fees, and costs (other than homebuilding, sales and
marketing costs) and anticipates that an additional $23,006,053 will be required to be expended
on such costs to complete the neighborhood. As of June 1, 2017, CalAtlantic has spent
$1,087,296 on home construction, sales and marketing, and anticipates spending an additional
$25,754,526 to buildout the 107 homes it currently anticipates building.
Union Neighborhood. CalAtlantic is building and selling homes within the “Union”
neighborhood within Improvement Area No. 1. The homes are expected to consist of 62
attached single-family residential units. The Union neighborhood is expected to open for sales
in June 2017, and CalAtlantic anticipates final build-out by __________, 20__. The following
tables provide additional information regarding the development of the Union project as of June
1, 2017
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Union Neighborhood
(Tract No. 8306)
(as of June 1, 2017)
Floor Plan
Square
Footage
Total
Number
of
Planned
Units
Units
Completed,
Sold, and
Closed
Units
Completed
and Unsold
or in Escrow
Units Under
Construction (1)
Base
Price (2)
Plan 1 1,443 14 0 0 6 $645,000
Plan 2 1,526 13 0 0 6 $685,000
Plan 3 1,770 13 0 0 6 $755,000
Plan 4 1,933 7 0 0 3 $745,000
Plan 5 2,076 14 0 0 6 $785,000
Plan 6 1,756 1 0 0 0 $755,000
Totals 62 27
____________________
(1) In addition, CalAtlantic anticipates the construction of __ model homes.
(2) Base sale prices are as of June 1, 2017. Base sales prices are subject to change and exclude any lot premiums,
options, upgrades, incentives and any selling concessions or price reductions which may be offered.
Source: CalAtlantic
As of June 1, 2017, CalAtlantic has incurred approximately $17,826,901 on site
acquisition, on-site development costs, fees, and costs (other than homebuilding, sales and
marketing costs) and anticipates that an additional $8,508,099 will be required to be expended
on such costs to complete the neighborhood. As of June 1, 2017, CalAtlantic has spent
$1,141,781 on home construction, sales and marketing, and anticipates spending an additional
$14,903,056 to buildout the 62 homes it currently anticipates building.
Sunset Neighborhood. CalAtlantic is building and selling homes within the “Sunset”
neighborhood within Improvement Area No. 1. The homes are expected to consist of 60
attached single-family residential units. The Sunset neighborhood is expected to open for sales
in __________, 20__, and CalAtlantic anticipates final build-out by __________, 20__. The
following tables provide additional information regarding the development of the Sunset project
as of June 1, 2017
Sunset Neighborhood
(Tract No. 8309)
(as of June 1, 2017)
Floor Plan
Square
Footage
Total
Number
of
Planned
Units
Units
Completed,
Sold, and
Closed
Units
Completed
and Unsold
or in Escrow
Units Under
Construction (1)
Base
Price (2)
Plan 1 2,405 20 0 0 0 $985,000
Plan 2 2,576 22 0 0 0 $1,003,000
Plan 3 2,688 18 0 0 0 $1,028,000
Totals 60
____________________
(1) In addition, CalAtlantic anticipates the construction of __ model homes.
(2) Base sale prices are as of June 1, 2017. Base sales prices are subject to change and exclude any lot premiums,
options, upgrades, incentives and any selling concessions or price reductions which may be offered.
Source: CalAtlantic
Financing Plan - Developer
To date, the Developer has financed its land acquisition and various site development
costs related to its property in the District through internally generated funds and lot sales
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revenues. The Developer estimates that, as of June 1, 2017, the remaining costs to complete its
planned development within Improvement Area No. 1 will be $______ and within the District will
be $__________. The Developer expects to use lot sales revenues, internal funding, and
reimbursement from Bond proceeds to complete its development in the District and believes
that it will have sufficient funds available to complete such development in accordance with the
development schedule described in this Official Statement.
Although the Developer expects to have sufficient funds available to complete its
development in the District as described in this Official Statement, there can be no assurance
that amounts necessary to finance the remaining development costs will be available to the
Developer from its internally generated funds or from any other source when needed. None of
BrookCal, SPIC, BrookCal Bay Area, BrookCal, LLC, BHC BrookCal, BrookCal Bay Area,
Brookfield Residential, CalAtlantic, or Cal STRS, nor any of their related entities, is under any
legal obligation of any kind to expend funds for the development of and construction of homes
on its property in the District. Any contributions by the Developer or any such entity to fund the
costs of such development are entirely voluntary.
If and to the extent that internal funding, including but not limited to lot sales revenues,
are inadequate to pay the costs to complete the planned development by the Developer within
the District and other financing by the Developer is not put into place, there could be a shortfall
in the funds required to complete the planned development by the Developer in the District.
Financing Plan – Merchant Builders
Brookfield Merchant Builders Financing Plan. To date, each Brookfield Merchant
Builder has financed its land acquisition, site development, and home construction costs related
to its respective Huntington, Wilshire, or Fillmore neighborhoods in Improvement Area No. 1
through internally generated funds and home sale revenues. As of June 1, 2017, Brookfield
BAH estimates the costs to complete the remaining land development of the Huntington,
Wilshire, and Fillmore neighborhoods within Improvement Area No. 1, including fees but
excluding costs of constructing, selling and marketing of homes, is approximately $42,495,000
million. Brookfield BAH estimates the remaining vertical home construction, selling and
marketing costs as of June 1, 2017 to complete its three projects in Improvement Area No. 1 to
be approximately $72,376,000 million. The foregoing costs are exclusive of internal financing
repayment and marketing and sales costs.
Brookfield BAH expects the remaining horizontal and vertical home construction costs
will be financed by the respective Brookfield Merchant Builder from home sales and internally
generated funds to complete its development activities in Improvement Area No. 1. Brookfield
BAH believes that the Brookfield Merchant Builders will have sufficient funds available to
complete their proposed development activities in Improvement Area No. 1, commensurate with
the development timing described in this Official Statement.
Although Brookfield BAH expects the Brookfield Merchant Builders to have sufficient
funds available to complete its development activities in Improvement Area No. 1,
commensurate with the development timing described in this Official Statement, there can be no
assurance, however, that amounts necessary to finance the remaining development and home
construction costs will be available from the Brookfield Merchant Builders or any other source
when needed. Any contributions by the Brookfield Merchant Builders or any of their respective
parent companies to fund the costs of such development and home construction are entirely
voluntary.
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If and to the extent that internal funding, including but not limited to home sales
revenues, are inadequate to pay the costs to complete the planned development by the
Brookfield Merchant Builders within Improvement Area No. 1 and other financing by the
Brookfield Merchant Builders is not put into place, there could be a shortfall in the funds
required to complete the proposed development by the Brookfield Merchant Builders in
Improvement Area No. 1 and the remaining portions of the development may not be developed.
CalAtlantic’s Financing Plan. To date, CalAtlantic has financed its land acquisition, site
development, and home construction costs related to its Madison, Union and Sunset
neighborhoods in Improvement Area No. 1 through internally generated funds and home sale
revenues. As of June 1, 2017, CalAtlantic estimates the costs to complete the remaining land
development of the Madison, Union and Sunset neighborhoods within Improvement Area No. 1,
including fees but excluding costs of constructing, selling and marketing homes, is
approximately $48,175,959 million. CalAtlantic estimates the remaining vertical home
constructing, selling and marketing costs as of June 1, 2017 to complete its three projects in
Improvement Area No. 1 to be approximately $58,179,675 million. The foregoing costs are
exclusive of internal financing repayment and marketing and sales costs.
CalAtlantic expects the remaining horizontal and vertical home construction costs will be
financed by CalAtlantic from home sales, internally generated funds and funding under
CalAtlantic’s revolving credit facility (described below) to complete its development activities in
Improvement Area No. 1. However, home sales revenues for CalAtlantic’s projects in
Improvement Area No. 1 are not segregated and set aside for the payment of costs required to
complete its activities in Improvement Area No. 1. Home sales revenue is accumulated and
used to pay costs of operations for CalAtlantic and its subsidiaries, to pay debt service on
outstanding debt and for other corporate purposes, and may be diverted to pay costs other than
the costs of completing CalAtlantic’s activities in Improvement Area No. 1 at the discretion of
CalAtlantic’s management. Notwithstanding the foregoing, CalAtlantic believes that it will have
sufficient funds available to complete its proposed development activities in Improvement Area
No. 1, commensurate with the development timing described in this Official Statement.
As of March 31, 2017, 2016, CalAtlantic was party to a $750 million unsecured revolving
credit facility (the “Revolving Facility”), which matures in October 2019. The Revolving Facility
is not secured by any property in Improvement Area No. 1. The Revolving Facility has an
accordion feature under which the aggregate commitment may be increased up to $1.2 billion,
subject to the availability of additional bank commitments and certain other conditions. The
Revolving Facility contains certain covenants and conditions that may limit the amount that
CalAtlantic may borrow or have outstanding at any time. As of March 31, 2017, CalAtlantic had
no amounts outstanding under the Revolving Facility and had outstanding letters of credit
issued under the Revolving Facility totaling $106.5 million, leaving $643.5 million available
under the Revolving Facility to be drawn as of such date. CalAtlantic’s ability to renew the
Revolving Facility in the future is dependent upon a number of factors including the state of the
commercial lending environment, the willingness of banks to lend to homebuilders and
CalAtlantic’s financial condition and strength.
Although CalAtlantic expects to have sufficient funds available to complete its
development activities in Improvement Area No. 1, commensurate with the development timing
described in this Official Statement, there can be no assurance, however, that amounts
necessary to finance the remaining development and home construction costs will be available
from CalAtlantic or any other source when needed. For example, borrowings under the
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Revolving Facility may not be available, and home sales revenue, which is accumulated daily
for use in operations by CalAtlantic, including to fund costs of other direct and indirect
subsidiaries, to pay debt service on outstanding debt and for other corporate purposes, may be
diverted to pay costs other than the costs of completing CalAtlantic’s activities in Improvement
Area No. 1 at the discretion of CalAtlantic’s management. CalAtlantic, its lenders, or any of their
related entities are not under any legal obligation of any kind to expend funds for the
development of and construction of homes on CalAtlantic’s property in Improvement Area No. 1.
Any contributions by CalAtlantic to fund the costs of such development and home construction
are entirely voluntary.
If and to the extent that internal funding, including but not limited to home sales revenues, and
borrowings under the Revolving Facility are inadequate to pay the costs to complete the
planned development by CalAtlantic within Improvement Area No. 1 and other financing by
CalAtlantic is not put into place, there could be a shortfall in the funds required to complete the
proposed development by CalAtlantic in Improvement Area No. 1 and the remaining portions of
the development may not be developed.
OWNERSHIP OF PROPERTY WITHIN IMPROVEMENT AREA NO. 1
Unpaid Special Taxes do not constitute a personal indebtedness of the owners of the
parcels within the District. There is no assurance that the present property owners or any
subsequent owners will have the ability to pay the Special Taxes or that, even if they have the
ability, they will choose to pay the Special Taxes. An owner may elect to not pay the Special
Taxes when due and cannot be legally compelled to do so. Neither the City nor any Bondowner
will have the ability at any time to seek payment directly from the owners of property within the
District of the Special Tax or the principal or interest on the Bonds, or the ability to control who
becomes a subsequent owner of any property within the District.
The Developer has provided the information set forth in this section entitled
“OWNERSHIP OF PROPERTY WITHIN IMPROVEMENT AREA NO. 1.” No assurance can be
given that all information is complete. In addition, any Internet addresses included below are for
reference only, and the information on those Internet sites is not a part of this Official Statement
or incorporated by reference into this Official Statement.
No assurance can be given that development of the property will be completed, or that it
will be completed in a timely manner. The Special Taxes are not personal obligations of the
developers or of any subsequent landowners;; the Bonds are secured only by the Special Taxes
and moneys available under the Fiscal Agent Agreement. See “SECURITY AND SOURCES
OF PAYMENT FOR THE BONDS” and “SPECIAL RISK FACTORS” herein.
The Developer
The following information describing the Developer, BrookCal and CalAtlantic has been
primarily provided by the Developer, BrookCal and CalAtlantic. The City has not independently
verified this information and assumes no responsibility for its accuracy or completeness. It is
only provided as a convenience to enable investors to more easily commence their own
independent investigations if they so choose.
The master developer of the property within the District is Dublin Crossing, LLC, a
Delaware limited liability company (previously defined as “Dublin Crossing” or the
“Developer”). Dublin Crossing is a joint venture between BrookCal Dublin LLC, a Delaware
limited liability company (previously defined as “BrookCal”), and SPIC Dublin LLC, a Delaware
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limited liability company (previously defined as “SPIC”), an affiliate of CalAtlantic Group, Inc., a
Delaware corporation (previously defined as “CalAtlantic”).
BrookCal. BrookCal is owned 100% by BrookCal Bay Area Holdings LLC, a Delaware
limited liability company (“BrookCal Bay Area”). BrookCal Bay Area is owned 100% by
BrookCal, LLC, a Delaware limited liability company (“BrookCal, LLC”). BrookCal, LLC is a
joint venture between BHC BrookCal, LLC, a Delaware limited liability company (“BHC
BrookCal”), and the California State Teachers Retirement System (“Cal STRS”). BHC BrookCal
is an indirect wholly-owned subsidiary of Brookfield Residential Properties Inc. (“Brookfield
Residential”), a wholly-owned subsidiary of Brookfield Asset Management Inc., which has been
developing land and building homes for over 50 years. Brookfield Residential is a leading North
American land developer and homebuilder with operations in Canada and the United States,
which entitles and develops land to create master-planned communities and builds and sells
lots to third- party builders, as well as to its own homebuilding divisions. Brookfield Residential
also participates in select strategic real estate opportunities, including infill projects, mixed-use
developments, infrastructure projects and joint ventures. Brookfield Residential currently
focuses on the following operating segments: Canada, California and Central and Eastern
United States. Its Canadian operations are primarily in the Alberta and Ontario markets.
Brookfield Residential has homebuilding operations in Austin, Calgary, Denver, Edmonton,
Hawaii, Los Angeles, Phoenix, San Diego, San Francisco, Toronto, and Washington D.C.
Brookfield Residential has been active in the Northern California market since 1997.
Information regarding Brookfield Residential’s operations in Northern California is
available at www.brookfieldnorcal.com. Copies of Brookfield Residential’s financial statements
and other information are currently available from Brookfield Residential’s website at
www.brookfieldresidential.com. These Internet addresses are included for reference only, and
the information on these Internet sites is not a part of this Official Statement and is not
incorporated by reference into this Official Statement. No representation is made in this Official
Statement as to the accuracy or adequacy of the information contained on these Internet sites.
CalAtlantic. CalAtlantic Group, Inc., referred to herein as CalAtlantic, is a homebuilder
incorporated in Delaware in 1991, with principal executive offices located in Irvine, California.
CalAtlantic is a publicly traded company with its stock listed on the New York Stock Exchange
under the symbol “CAA.”
The development of the Madison, Union and Sunset neighborhoods in Improvement
Area No. 1 is currently being undertaken by the Northern California Division of CalAtlantic.
CalAtlantic is subject to the informational requirements of the Exchange Act, and in
accordance therewith is obligated to file reports, proxy statements, and other information,
including financial statements, with the SEC. Such filings, including particularly CalAtlantic’s
Annual Report on Form 10-K for the fiscal year ended December 31, 2016, as filed with the
SEC on February 28, 2017, and Quarterly Report on Form 10-Q for the quarter ended March
31, 2017, as filed with the SEC on April 28, 2017, set forth certain data relative to the
consolidated results of operations and financial position of CalAtlantic and its subsidiaries as of
such dates. The SEC maintains an internet web site that contains reports, proxy and information
statements and other information regarding registrants that file electronically with the SEC,
including CalAtlantic. The address of such internet web site is www.sec.gov. All documents
subsequently filed by CalAtlantic pursuant to the requirements of the Exchange Act after the
date of this Official Statement will be available for inspection in such manner as the SEC
prescribes. Copies of CalAtlantic’s annual report, quarterly reports and current reports, including
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any amendments, are also available from CalAtlantic’s website at www.calatlantichomes.com.
The foregoing internet addresses and references to filings with the SEC are included for
reference only, and the information on such internet sites and on file with the SEC are not a part
of this Official Statement and are not incorporated by reference into this Official Statement. No
representation is made in this Official Statement as to the accuracy or adequacy of the
information contained on such internet sites.
The Developer has financed planning, design and construction of Authorized
Improvements to date from various existing sources pending acquisition of Authorized
Improvements by the City and payment to the Developer from proceeds of the Bonds and,
under limited circumstances, Special Taxes. The Developer has utilized their access to funds
from cash and existing operating lines of credit to commence the development of infrastructure.
APPRAISED VALUE OF PROPERTY WITHIN IMPROVEMENT AREA NO. 1
The Appraisal
General. Seevers Jordan Ziegenmeyer, Rocklin, California (the “Appraiser”) prepared
an appraisal report with a date of value of May 17, 2017 (the “Appraisal”). The Appraisal was
prepared at the request of the City.
The Appraiser was requested by the City to provide a market value of the appraised
properties by ownership, as well as a cumulative, or aggregate, value of the appraised
properties within the District (see “Property Appraised” below), under the assumptions and
conditions cited in the attached report. The value estimates assume a transfer would reflect a
cash transaction or terms that are considered to be equivalent to cash. The estimates are also
premised on an assumed sale after reasonable exposure in a competitive market under all
conditions requisite to a fair sale, with buyer and seller each acting prudently, knowledgeably,
for their own self-interest and assuming neither is under duress.
The Appraisal is set forth in its entirety in APPENDIX B hereto. The description herein of
the Appraisal is intended for limited purposes only;; the Appraisal should be read in its entirety.
The conclusions reached in the Appraisal are subject to certain assumptions and qualifications
which are set forth in the Appraisal.
Property Appraised. The Appraisal valued the fee simple estate of certain taxable land
areas in Improvement Area No. 1. More specifically, the appraised properties consist of 453
residential units (129 detached and 324 attached) held by one master developer and two
separate merchant builders. Any properties within the boundaries of the District not subject to
the Lien of the Special Tax securing the Bonds (public and quasi-public land use sites) are not a
part of the appraisal.
Value Estimate. The market value of the appraised properties, by ownership, as well
as the cumulative, or aggregate, value, are subject to the hypothetical condition various public
improvements to be financed by proposed series of Bonds have been paid. The estimates of
value also account for the impact of the Lien of the Special Tax securing the Bonds.
The value estimate for the appraised property as of the May 17, 2017 date of value,
using the methodologies described in the Appraisal and subject to the hypothetical condition
that various public improvements to be financed by the Bonds are in place, and subject to other
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assumptions and limiting conditions set forth in the Appraisal, and based on the ownership of
the property as of that date is $153,210,000, as follows:
Property Owner Type
No.
of
Units
Conclusion of
Value (Rd.)
CalAtlantic Group, Inc.
Phase 1A: Union Attached 62 $16,340,000
Phase 1A: Madison Attached 107 $30,950,000
Phase 1B: Sunset Detached 60 $28,200,000
Subtotal 229 $75,490,000
Brookfield Entities
Phase IA: Wilshire Attached 75 $22,660,000
Phase I A: Huntington (A) Detached 45 $19,830,000
Phase I B: Fillmore Attached 80 $25,340,000
Subtotal 200 $67,830,000
Dublin Crossing Land Company
Phase IA: Huntington (B) Detached 24 $9,890,000
Subtotal 24 $9,890,000
Aggregate (Cumulative) Value of Improvement Area No. 1 $153,210,000
Note that the aggregate value noted is not the market value of the appraised properties
in bulk. As defined by The Dictionary of Real Estate Appraisal, an aggregate value is the “total
of multiple market value conclusions.” For purposes of the Appraisal, market value is estimated
by ownership.
Appraisal Methodology. In the Appraisal, the Appraiser determined the market value
of the residential land, by lot size category, estimate by employing the use of the sales
comparison approach and a land residual analysis, or discounted cash flow analysis (DCF),
described as follows: “In the sales comparison approach we analyzed comparable bulk lot sales
from the region and adjusted the datum for attributes that varied from the subject’s four land
development categories. A land residual analysis was also utilized to estimate the market value
of the subject lots, by lot size category. The land residual analyses are a discounted cash flow
(DCF) analysis that considered home prices and costs for each lot size category, leading to an
estimate of residual land value. A DCF analysis is a procedure in which a discount rate is
applied to a projected revenue stream generated from the sale of individual components of a
project. In this method of valuation, the appraiser specifies the quantity, variability, timing and
duration of the revenue streams and discounts each to its present value at a specified yield rate.
In the analysis described, the revenue component of the DCF was based on the market value
for the proposed homes for each lot size category. A number of assumptions were made in the
discounted cash flow analysis, not the least of which is the forecast of absorption, or disposition,
of the homes comprising each lot size category. The lot values indicated by each approach
were then reconciled into an opinion of market value for the subject’s four land development
categories as if in finished condition.”
Extraordinary Assumptions and Limiting Conditions. In addition to the hypothetical
condition described above, the Appraisal is based upon a number of standard and special
assumptions and conditions, all of which affect the estimate as to value, some of which include
the following. See “APPENDIX B – THE APPRAISAL” for a complete list of such assumptions
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and conditions. The Appraisal states the following extraordinary assumptions and hypothetical
condition:
• It is assumed there are no adverse soil conditions, toxic substances or other
environmental hazards that may interfere or inhibit the development of the subject
properties.
• The exact locations of the easements referenced in a preliminary title report were not
provided to the appraiser. The appraiser is not a surveyor nor qualified to determine
the exact location of the referenced easements. It is assumed the easements which
would be noted in a preliminary title report do not have an impact on the opinions of
value as provided in this report. If, at some future date, these easements are
determined to have a detrimental impact on value, the appraiser reserves the right to
amend the opinion(s) of value. The opinions of value presented in this report are
predicated on none of the items referenced in the preliminary title report having a
detrimental impact upon the utility of the property as proposed, nor the opinions of
value. If, at some future date, these exceptions are determined to have a detrimental
impact on value, the appraiser reserves the right to amend the opinion(s) of value.
• We have been requested to estimate the market value of the appraised properties,
by ownership, as well as the cumulative, or aggregate, value of the District as of the
date of inspection (May 17, 2017), subject to the hypothetical condition various public
improvements to be financed by the City of Dublin Community Facilities District No.
2015-1 (Dublin Crossing) Bonds are in place and available for use.
Exposure Time. The Appraisal comments on exposure time for the property appraised
as follows: “Exposure time indicates that exposure time is the period a property interest would
have been offered on the market prior to the hypothetical consummation of a sale at market
value on the effective date of the Appraisal. Marketing time reflects the time it might take to sell
an interest in real property at its estimated market value during the period immediately after the
effective date of the appraisal. Exposure time and marketing time may or may not be similar
depending on whether market activity in the immediate future continues in the same manner as
in the immediate past. Indications of the exposure time associated with a market value estimate
are provided by the marketing times of sale comparables, interviews with participants in the
market, and analysis of general economic conditions. Estimation of a future marketing time is
more difficult, requiring forecasting and analysis of trends. Exposure time is defined as the
length of time a property interest would have been offered on the market prior to the
hypothetical consummation of a sale at market value on the effective date of the appraisal. It is
a retrospective estimate of time based on an analysis of past events assuming a competitive
and open market. The residential land market throughout the San Francisco Bay Area region
has been in a state of expansion for several years. A transfer of residential land has typically
occurred within 12 months of exposure. Given the size of the subject properties, and the
condition of the market, it is expected that if appropriately priced, the exposure time for the
subject properties, assuming the properties (by ownership) are not marketed concurrently,
would likely be approximately 12 months.”
No assurance can be given that the estimated exposure time or absorption of sales of
property in Improvement Area 1 will be achieved or attained over an extended period of time;;
real estate is cyclical in nature, and it is impossible to accurately forecast and project specific
demand over a projected period. See “SPECIAL RISK FACTORS – Property Values and
Property Development.”
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Limitations of Appraisal Valuation. Property values may not be evenly distributed
throughout the District;; thus, certain parcels may have a greater value than others. This
disparity is significant because in the event of nonpayment of the Special Tax, the only remedy
is to foreclose against the delinquent parcel.
No assurance can be given that the estimate of market value set forth in the Appraisal
can or will be maintained during the period of time that the Bonds are outstanding in that the
City has no control over the market value of the property within the District or the amount of
additional indebtedness that may be issued in the future by other public agencies, the payment
of which, through the levy of a tax or an assessment, may be on a parity with the Special Taxes.
See “Overlapping Liens and Priority of Lien” below.
For a description of certain risks that might affect the assumptions made in the
Appraisal, see “SPECIAL RISK FACTORS” herein.
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Value to Special Tax Burden Ratios
The following table sets forth the value-to-lien ratios for property within Improvement Area No. 1, based on
the appraised values set forth in the Appraisal.
Improvement Area No. 1
City of Dublin
CFD No. 2015-1 (Dublin Crossing)
Hypothetical Fiscal Year 2017-18 Special Tax Levy and Value-to-Lien
(Development Status as of June 30, 2017)
Hypothetical Percent of
Planned
FY 2017-18 Estimated Series
Residential Appraised Special FY 2017-18 2017
Value-
to-
Development
Status Units (1) Value Tax Levy (2)
Tax Levy
(3) Bonds* (4) Lien*
Developed
Property
Brookfield 71 $25,279,567 $312,807 17.9% $5,856,721 4.3
CalAtlantic 78 $21,867,676 $291,997 16.7% $5,467,082 4.0
Subtotal 149 $47,147,242 $604,804 34.6% $11,323,802 4.2
Undeveloped
Property
Brookfield 129 $42,550,433 $560,674 32.1% $10,497,562 4.1
CalAtlantic 151 $53,622,324 $476,533 27.2% $8,922,174 6.0
Dublin
Crossing 24 $9,890,000 $106,898 6.1% $2,001,461 4.9
Subtotal 304 $106,062,758 $1,144,105 65.4% $21,421,198 5.0
Total
453 $153,210,000 $1,748,909 100.0% $32,745,000 4.7
* Preliminary, subject to change
(1)
Based on Attachment 1 of the Rate and Method of
Apportionment.
(2) Special taxes will only be levied against parcels of Developed Property in fiscal year 2017-18;; the remainder of debt service will
be paid from capitalized interest funded with proceeds of the 2017 Bonds.
(3) Interest on Bonds is capitalized through September 1, 2018.
(4)
Allocated based on the share of the hypothetical fiscal year 2017-18 special tax levy. There is no overlapping tax and assessment
debt.
Overlapping debt from general obligation bonds and PACE liens (if any) have not been included.
Source: Seevers, Jordan, Ziegenmeyer;; Prager & Co, LLC;; Goodwin Consulting Group, Inc.
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In comparing the appraised value of the real property within the District and the principal
amount of the Bonds, it should be noted that only the real property upon which there is a
delinquent Special Tax can be foreclosed upon, and the real property within the District cannot
be foreclosed upon as a whole to pay delinquent Special Taxes of the owners of such parcels
within the District unless all of the property is subject to a delinquent Special Tax. In any event,
individual parcels may be foreclosed upon separately to pay delinquent Special Taxes levied
against such parcels.
Other public agencies whose boundaries overlap those of the District could, without the
consent of the City and in certain cases without the consent of the owners of the land within the
District, impose additional taxes or assessment liens on the land within the District. The lien
created on the land within the District through the levy of such additional taxes or assessments
may be on a parity with the lien of the Special Tax. In addition, construction loans may be
obtained by the Merchant Builders or home loans may be obtained by ultimate homeowners.
The deeds of trust securing such debt on property within the District, however, will be
subordinate to the lien of the Special Tax.
Overlapping Liens and Priority of Lien
The principal of and interest on the Bonds are payable from the Special Tax authorized
to be collected within the District, and payment of the Special Tax is secured by a lien on certain
real property within the District. Such lien is co-equal to and independent of the lien for general
taxes and any other liens imposed under the Act, regardless of when they are imposed on the
property in the District. The imposition of additional special taxes, assessments and general
property taxes will increase the amount of independent and co-equal liens which must be
satisfied in foreclosure. The City, the County and certain other public agencies are authorized
by the Act to form other community facilities districts and improvement areas and, under other
provisions of State law, to form special assessment districts, either or both of which could
include all or a portion of the land within the District.
Set forth on the following page is an overlapping debt table showing the existing
authorized indebtedness payable with respect to property within the District. This table has
been prepared by California Municipal Statistics Inc. as of the date indicated, and is included for
general information purposes only. The City has not reviewed the data for completeness or
accuracy and makes no representations in connection therewith.
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CITY OF DUBLIN
IMPROVEMENT AREA NO. 1
COMMUNITY FACILITIES DISTRICT NO. 2015-1 (DUBLIN CROSSING)
As of June 1, 2017
2016-17 Assessed Valuation: $23,225,000
DIRECT AND OVERLAPPING TAX AND ASSESSMENT DEBT: % Applicable Debt
Bay Area Rapid Transit District 0.004% $ 35,406
Chabot-Las Positas Community College District 0.021 112,862
Dublin Unified School District 0.169 573,153
East Bay Regional Park District 0.006 6,853
City of Dublin - Dublin Crossing Community Facilities District 100.000 --(1)
TOTAL DIRECT AND OVERLAPPING TAX AND ASSESSMENT DEBT $728,274
OVERLAPPING GENERAL FUND DEBT:
Alameda County General Fund Obligations 0.009% $78,348
Alameda County Pension Obligation Bonds 0.009 2,534
TOTAL OVERLAPPING GENERAL FUND DEBT $80,882
COMBINED TOTAL DEBT $809,156(2)
Ratios to 2016-17 Assessed Valuation:
Direct Debt ($0) ....................................................................... 0.00%
Total Direct and Overlapping Tax and Assessment Debt ........ 3.14%
Combined Total Debt ............................................................... 3.48%
_________________
(1) Excludes issue to be sold.
(2) Excludes tax and revenue anticipation notes, enterprise revenue, mortgage revenue and non-bonded capital lease obligations.
Source: California Municipal Statistics, Inc.
There can be no assurance that the Developer, its affiliates or any subsequent owner
will not petition for the formation of other community facilities districts and improvement areas or
for a special assessment district or districts and that parity special taxes or special assessments
will not be levied by the County or some other public agency to finance additional public
facilities, however no other special districts are currently contemplated by the City or the
Developer.
Private liens, such as deeds of trust securing loans obtained by the Developer, may be
placed upon property in the District at any time. Under California law, the Special Taxes have
priority over all existing and future private liens imposed on property subject to the lien of the
Special Taxes.
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SPECIAL RISK FACTORS
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 is a description of certain risk
factors affecting the District, the property owners in the District, the parcels subject to the levy of
Special Tax and the payment of and security for the Bonds. The following discussion of risks is
not meant to be a complete list of the risks associated with the purchase of the Bonds and does
not necessarily reflect the relative importance of the various risks. Potential investors are
advised to consider the following factors along with all other information in this Official
Statement in evaluating the investment quality of the Bonds. There can be no assurance that
other risk factors will not become material in the future.
Limited Obligation of the City to Pay Debt Service
The City has no obligation to pay principal of and interest on the Bonds in the event
Special Tax collections are delinquent, other than from amounts, if any, on deposit in the
Reserve Fund or funds derived from the tax sale or foreclosure and sale of parcels on which
levies of the Special Tax are delinquent, nor is the City obligated to advance funds to pay such
debt service on the Bonds. The Bonds are not general obligations of the City but are limited
obligations of the City and Improvement Area No. 1 payable solely from the proceeds of the
Special Tax and certain funds held under the Fiscal Agent Agreement, including amounts
deposited in the Reserve Fund and investment income thereon, and the proceeds, if any, from
the sale of property subject to the Special Tax in the event of a foreclosure. See “SECURITY
AND SOURCES OF PAYMENT FOR THE BONDS.” Any tax for the payment of the Bonds will
be limited to the Special Taxes to be collected within the jurisdiction of Improvement Area No. 1.
Neither the faith and credit nor the taxing power of the City or the State of California or of any of
their respective political subdivisions is pledged to the payment of the Bonds.
Special Tax Not a Personal Obligation
An owner of property in Improvement Area No. 1 is not personally obligated to pay the
Special Tax attributable to the property in Improvement Area No. 1. Rather, the Special Tax is
an obligation only against the parcel of property, secured by the amount which could be realized
in a foreclosure proceeding against the property, and not by any promise of the owner of any
property to pay. If the value of the property is not sufficient for the payment of debt service on
the Bonds, taking into account other obligations also constituting a lien against the property, the
City, Fiscal Agent and owners of the Bonds have no recourse against the owner, such as filing a
lawsuit to collect money.
Concentration of Ownership
All of the land within Improvement Area No. 1 is currently owned by the Developer and
the Merchant Builders, as there have not yet been any transfers to homeowners. The lack of
diversity in ownership of property in the District, and the consequent lack of diversity in the
obligation to pay the Special Tax levied in the District, represents significant risk to the owners
of the Bonds in that the ability of the Developer and the Merchant Builders to pay the Special
Tax levied on property they own will depend, in part, on the successful sales of lots and homes
in the District.
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Failure of the current owners, or any future owners, of significant property subject to the
Special Taxes in Improvement Area No. 1 to pay installments of Special Taxes when due could
cause the depletion of the Reserve Fund prior to reimbursement from the resale of foreclosed
property or payment of the delinquent Special Tax and, consequently, result in the delinquency
rate reaching a level that would cause an insufficiency in collection of the Special Tax to meet
obligations on the Bonds. For a description of the Developer and the Merchant Builders, see
“OWNERSHIP OF PROPERTY WITHIN IMPROVEMENT AREA NO. 1 – The Developer.” In
that event, there could be a delay or failure in payments on the Bonds. See “SPECIAL RISK
FACTORS – Bankruptcy and Foreclosure Delays” below and “SECURITY FOR THE BONDS –
Delinquent Payments;; Covenant for Superior Court Foreclosure.”
Development of undeveloped property within Improvement Area No. 1 may be subject to
unexpected delays, disruptions and changes which may affect the willingness and ability of the
Developer or landowner to pay the Special Taxes when due. Certain infrastructure
improvements remain to be completed in order to complete construction of all of the homes in
Improvement Area No. 1. No assurance can be given that the remaining proposed residential
development will be partially or fully completed, and for purposes of evaluating the investment
quality of the Bonds, prospective purchasers should consider the possibility that such parcels
will remain vacant and only partially improved.
Levy and Collection of the Special Tax
General. 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 No. 1.
Limitation on Maximum Annual Special Tax Rate. 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.
In addition to the maximum annual Special Tax rate limitation in the Rate and Method,
Section 53321(d) of the Act provides that the special tax levied against any parcel for which an
occupancy permit for private residential use has been issued may not be increased as a
consequence of delinquency or default by the owner of any other parcel within a community
facilities district by more than 10% above the amount that would have been levied in such Fiscal
Year had there never been any such delinquencies or defaults. In cases of significant
delinquency, these factors may result in defaults in the payment of principal of and interest on
the Bonds.
No Relationship Between Property Value and Special Tax Levy. Because 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.
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Factors that Could Lead to Special Tax Deficiencies. 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:
Transfers to Governmental Entities. The number of parcels of Taxable Property
could be reduced through the 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 an agency thereof, immunity from taxation,
thereby resulting in an increased tax burden on the remaining taxed parcels. One parcel
is anticipated to be used as a school and be exempt from the levy of the Special Tax;;
accordingly, this parcel has not been included in the parcels that were appraised by the
Appraiser and no portion of the Bonds have been allocated to it in the tables in this
Official Statement.
Property Tax Delinquencies. Under provisions of the Act, the Special Tax, from
which funds necessary for the payment of principal of, and interest on, the Bonds are
derived, are being billed to the property within the District on the regular property tax bills
sent to owners of the parcels. Such Special Tax installments are due and payable, and
bear the same penalties and interest for nonpayment, as do regular property tax
installments. Special Tax installment payments cannot be made separately from
property tax payments. Therefore, the unwillingness or inability of a property owner to
pay regular property tax bills as evidenced by property tax delinquencies may also
indicate an unwillingness or inability to make regular property tax payments and Special
Tax installment payments in the future. Failure of the owners of Taxable Property to pay
property taxes (and, consequently, the Special Tax), or delays in the collection of or
inability to collect the Special Tax by tax sale or foreclosure and sale of the delinquent
parcels, could result in a deficiency in the collection of Special Tax revenues. For a
summary of recent Special Tax collection and delinquency rates in Improvement Area
No. 1, see “VALUE OF PROPERTY WITHIN IMPROVEMENT AREA NO. 1” herein.
Insufficiency of Special Taxes
In order to pay debt service on the Bonds, it is necessary that the Special Tax levied
against taxable parcels within the District be paid in a timely manner. The City has established
the Reserve Fund in an amount equal to the Reserve Requirement to pay debt service on the
Bonds and any Parity Bonds to the extent Special Taxes are not paid on time and other funds
are not available. See "SECURITY AND SOURCES OF PAYMENT FOR THE BONDS –
Reserve Fund" and APPENDIX C – Summary of Certain Provisions of the Fiscal Agent
Agreement. Under the Fiscal Agent Agreement, the City has covenanted to maintain in the
Reserve Fund an amount equal to the Reserve Requirement;; subject, however, to the limitation
that the City may not levy the Special Tax in any fiscal year at a rate in excess of the Maximum
Special Tax rates permitted under the Rate and Method. In addition, the Act imposes certain
limitations on increases in Special Taxes on residential parcels as a consequence of
delinquencies in payment of the Special Taxes. See "SECURITY AND SOURCES OF
PAYMENT FOR THE BONDS – Special Taxes." Consequently, if a delinquency occurs, the City
may be unable to replenish the Reserve Fund to the Reserve Requirement due to the limitation
of the Maximum Special Tax rates. If such defaults were to continue in successive years, the
Reserve Fund could be depleted and a default on the Bonds would occur if proceeds of a
foreclosure sale did not yield a sufficient amount to pay the delinquent Special Taxes.
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The City has made certain covenants regarding the institution of foreclosure proceedings
to sell any property with delinquent Special Taxes in order to obtain funds to pay debt service on
the Bonds. See "SECURITY AND SOURCES OF PAYMENT FOR THE BONDS – Delinquent
Payments of Special Tax;; Covenant for Superior Court Foreclosure." If foreclosure proceedings
were ever instituted, any mortgage or deed of trust holder could, but would not be required to,
advance the amount of delinquent Special Taxes to protect its security interest.
Appraised Values
The Appraisal estimates the market value of the taxable property within Improvement
Area No. 1. This market value is merely the present opinion of the Appraiser, and is subject to
the assumptions and limiting conditions stated in the Appraisal. Prospective purchasers of the
Bonds should not assume that the land within the District could be sold for the appraised
amount described in the Appraisal at a foreclosure sale for delinquent Special Taxes 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 City makes
no representation as to the accuracy of the Appraisal.
The opinion of value relates to sale by a willing seller to a willing buyer as of the date of
valuation, 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 considering the estimates of value evidenced by the Appraisal, it should be noted that
the Appraisal is based upon a number of standard and special assumptions which affect the
estimates as to value, as well as the hypothetical condition of the Authorized Improvements
having been completed, as set forth in the Appraisal (see APPENDIX B hereto). The
improvements to be financed by the Bonds were not in place as of the date of inspection;; thus,
the value estimate is subject to a hypothetical condition (of such improvements being in place).
In addition, the opinion of market value in the Appraisal is a present opinion. It is based
upon present facts and circumstances. Differing facts and circumstances may lead to differing
opinions of value. The appraised market 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 appraised property in Improvement Area No.
1 could be sold in a foreclosure for the estimated market value contained in the Appraisal. Such
sale is the primary remedy available to Bondowners if that property should become delinquent
in the payment of Special Taxes. A significant portion of the Special Tax is expected to initially
be levied on Undeveloped Property with low value to Bond burden values. Although the Act
authorizes the City to cause such an action to be commenced and diligently pursued to
completion, the Act does not specify any obligation of the City with regard to purchasing or
otherwise acquiring any lot or parcel of property sold at the foreclosure sale in any such action if
there is no other purchaser at such sale. The City is not obligated and does not expect to be a
bidder at any such foreclosure sale.
Value-to-Lien Ratios
Value-to-lien ratios have traditionally been used in land-secured bond issues as a
measure of the "collateral" supporting the willingness of property owners to pay their special
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taxes and assessments (and, in effect, their general property taxes as well). The value-to-lien
ratio is mathematically a fraction, the numerator of which is the value of the property (usually
either the assessed value or a market value as determined by an appraiser) and the
denominator of which is the "lien" of the assessments or special taxes as represented by the
principal amount of bonds repaid by such assessment or special tax. A value-to-lien ratio should
not, however, be viewed as a guarantee of credit-worthiness. Land values are especially
sensitive to economic cycles. A downturn of the economy may depress land values and hence
the value-to-lien ratios. Further, the value-to-lien ratio typically cited for a bond issue is an
average. Individual parcels in a community facilities district may fall above or below the average,
sometimes even below a 1:1 ratio (with a ratio below 1:1, the land is worth less than the unpaid
principal of the bonded debt allocable to it). Although judicial foreclosure proceedings can be
initiated rapidly, the process can take several years to complete, and the bankruptcy courts may
impede the foreclosure action. Finally, local agencies may form overlapping community facilities
districts or assessment districts. Such local agencies typically do not coordinate their bond
issuances. Debt issuance by an entity other than the City for the District can therefore dilute
value-to-lien ratios.
Exempt Properties
Certain properties are exempt from the Special Tax in accordance with the Rate and
Method. In addition, the Act provides that properties or entities of the state, federal or local
government are exempt from the Special Tax;; provided, however, that property within the
District acquired by a public entity through a negotiated transaction, or by gift or devise, that is
not otherwise exempt from the Special Tax, will continue to be subject to the Special Tax. It is
possible that property acquired by a public entity following a tax sale or foreclosure based upon
failure to pay taxes could become exempt from the Special Tax. In addition, 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, for outstanding
Bonds only, 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.
In particular, insofar as the Act requires payment of the Special Tax by a federal entity
acquiring property within the District, it may be unconstitutional. If for any reason property within
the District becomes exempt from taxation by reason of ownership by a nontaxable entity such
as the federal government or another public agency, subject to the limitation of the Maximum
Special Tax, the Special Tax will be reallocated to the remaining taxable properties within the
District. This would result in the owners of such property paying a greater amount of the Special
Tax and could have an adverse impact upon the timely payment of the Special Tax. Moreover, if
a substantial portion of land within the District becomes exempt from the Special Tax because
of public ownership, or otherwise, the maximum rate that could be levied upon the remaining
acreage might not be sufficient to pay principal of and interest on the Bonds when due and a
default would occur with respect to the payment of such principal and interest.
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.
Property Values and Property Development
The value of taxable property within Improvement Area No. 1 is a critical factor in
determining the investment quality of the Bonds. If a property owner defaults in the payment of
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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 values could be adversely
affected by economic and other factors beyond the City’s control including, without limitation, a
general economic downturn, relocation of employers out of the area, shortages of water,
electricity, natural gas or other utilities, destruction of property caused by earthquake, flood,
wildfires, or other natural disasters, environmental pollution or contamination, inability to obtain
necessary permits or agreements with governmental entities, or unfavorable economic
conditions.
The Appraisal (which is set forth in APPENDIX B to this Official Statement) is based on
certain assumptions made by the Appraiser in estimating the market value of the property within
Improvement Area No. 1 as of the date indicated. No assurance can be given that the land
values are accurate if these assumptions are incorrect or that the values will not decline in the
future if one or more events, such as natural disasters or adverse economic conditions, occur.
See “Appraised Values” above.
Neither the District nor the City has evaluated development risks related to the
development of land in the District. 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 District is
issuing the Bonds without regard to any such evaluation. Thus, the creation of the District and
the issuance of the Bonds in no way implies that the District or 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 No. 1 or the value of property in Improvement
Area No. 1.
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
“APPRAISED VALUE OF PROPERTY WITHIN IMPROVEMENT AREA NO. 1 - Value to
Special Tax Burden Ratios.” No assurance can be given that the proposed development within
Improvement Area No. 1 will be completed, and in assessing the investment quality of the
Bonds, prospective purchasers should evaluate the risks of non-completion.
Neither the Developer nor any other person provides any assurances that the project
currently envisioned for the land in the District will be completed, or that sources of financing
that will actually be available to the Developer will be sufficient to complete such projected
development. The Developer has no obligation to the City or to owners of the Bonds to
complete the project.
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Risks of Real Estate Investment Generally. Continuing development of land within
Improvement Area No. 1 may be adversely affected by changes in general or local economic
conditions, fluctuations in 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 No. 1 may also be affected by
development in surrounding areas, which may compete with the development. 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 No. 1 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 No. 1 will not be
adversely affected by these risks.
Natural Disasters. The value of the parcels in Improvement Area No. 1 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 parcels in the
District and the continued habitability and enjoyment of such private improvements. For
example, the areas in and surrounding the District, like those in much of the State, may be
subject to earthquakes or other unpredictable seismic activity. According to the Seismic Safety
Commission, District is located within Zone 4, which is considered to be the highest risk zone in
California. There are only two zones in California: Zone 4, which is assigned to areas near major
faults;; and Zone 3, which is assigned to all other areas of more moderate seismic activity. In
addition, the District is located in a Fault-Rupture Hazard Zone (formerly referred to as an Alquist-
Priolo Special Study Zone), as defined by Special Publication 42 (revised January 1994) of the
California Department of Conservation, Division of Mines and Geology.
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 parcels may well
depreciate.
Legal Requirements. Other events that may affect the value of a parcel include
changes in the law or application of the law. Such changes may include, without limitation, local
growth control initiatives, local utility connection moratoriums and local application of statewide
tax and governmental spending limitation measures. Development in the District may also be
adversely affected by the application of laws protecting endangered or threatened species.
Hazardous Substances. Any discovery of a hazardous substance detected on property
within the District would affect the marketability and the value of some or all of the property in
the District. In that event, the owners and operators of a parcel within the District 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. State law with regard to hazardous
substances are also applicable to property within the District and are as stringent as the federal
laws. Under many of these laws, the owner (or operator) is obligated to remedy a hazardous
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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 parcels
be contaminated 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.
The values set forth in the Appraisal do not take into account the possible reduction in
marketability and value of any of the parcels within the District by reason of the possible liability
of the owner (or operator) for the remedy of a hazardous substance condition on a parcel.
Although the City is not aware that the owner (or operator) of any of the property within the
District has a current liability for a hazardous substance with respect to any of the parcels, 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
parcels within the District resulting from the existence, currently, on the parcel of a substance
presently classified as hazardous but which 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 which 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 a parcel within the District that is realizable upon a foreclosure sale. The City has
not independently verified, but is not aware of, the presence of any hazardous substances
within the District.
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. The discovery of
an endangered plant or animal could delay development of undeveloped property in the District
or reduce the value of such property.
Other Possible Claims Upon the Value of Taxable Property
While the Special Taxes are secured by the taxable property in Improvement Area No. 1,
the security only extends to the value of such property that is not subject to priority and parity
liens and similar claims. The table in the section entitled “APPRAISED VALUE OF PROPERTY
WITHIN IMPROVEMENT AREA NO. 1 – Overlapping Liens and Priority of Lien” shows the
presently outstanding amount of governmental obligations (with stated exclusions), the tax or
assessment for which 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.
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The City, the County and certain other public agencies are authorized by the Act to form
other community facilities districts and improvement areas and, under other provisions of State
law, to form special assessment districts, either or both of which could include all or a portion of
the land within Improvement Area No. 1. 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. The City has no control over the
ability of other entities to issue indebtedness secured by special taxes or assessments payable
from all or a portion of the taxable property within the District subject to the levy of the Special
Tax. The imposition of additional indebtedness could reduce the willingness and the ability of
the property owners within the District to pay the Special Taxes when due.
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.
Bankruptcy and Foreclosure Delays
The Fiscal Agent Agreement generally 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 –
Delinquent Payments of Special Tax;; Covenant for Superior Court Foreclosure” 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 deeded to the State and then
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
AND SOURCES OF PAYMENT FOR THE BONDS – Delinquent Payments of Special Tax;;
Covenant for Superior Court Foreclosure.” No assurances can be given that a taxable parcel in
the District that would be subject to a judicial foreclosure sale for delinquent Special Taxes will
be sold or, if sold, that the proceeds of such sale will be sufficient to pay the delinquent Special
Tax installment. Although the Act authorizes the City to cause such an action to be commenced
and diligently pursued to completion, the Act does not specify any obligation of the City with
regard to purchasing or otherwise acquiring any lot or parcel of property sold at the foreclosure
sale in any such action if there is no other purchaser at such sale and the City has not in any
way agreed nor does it expect to be such a bidder.
The ability of the City to collect interest and penalties specified by State law and to
foreclose against properties having delinquent Special Tax installments may be limited in certain
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respects with regard to properties in which the Federal Deposit Insurance Corporation (the
“FDIC”) has or obtains an interest. The FDIC would obtain such an interest by taking over a
financial institution that has made a loan that is secured by property within the District.
The payment of the Special Tax and the ability of the City to foreclose the lien of a
delinquent unpaid Special Tax may also 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. Although bankruptcy proceedings would not cause the Special Tax to become
extinguished, bankruptcy of a property owner or any other person claiming an interest in the
property 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. 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.
Other laws generally affecting creditors’ rights or relating to judicial foreclosure may
affect the ability to enforce payment of Special Taxes or the timing of enforcement of Special
Taxes. For example, the Soldiers and Sailors Civil Relief Act of 1940 affords protections such
as a stay in enforcement of the foreclosure covenant, a six-month period after termination of
military service to redeem property sold to enforce the collection of a tax or assessment and a
limitation on the interest rate on the delinquent tax or assessment to persons in military service
if the court concludes the ability to pay such taxes or assessments is materially affected by
reason of such service.
To the extent that property in Improvement Area No. 1 continues to be owned by a
limited number of property owners, the chances are increased that the Reserve Fund 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 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.
No Acceleration Provisions
The Bonds do not contain a provision allowing for their acceleration in the event of a
payment default or other default under the terms of the Bonds or the Fiscal Agent Agreement or
in the event interest on the Bonds becomes included in gross income for federal income tax
purposes. Under the Fiscal Agent Agreement, a Bondowner is given the right for the equal
benefit and protection of all Bondowners similarly situated to pursue certain remedies. So long
as the Bonds are in book-entry form, DTC will be the sole Bondowner and will be entitled to
exercise all rights and remedies of Bond holders, in accordance with its procedures and rules.
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Loss of Tax Exemption
As discussed under the caption “LEGAL MATTERS – Tax Exemption,” 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. Neither the Bonds nor the Fiscal
Agent Agreement contain a special redemption feature triggered by the occurrence of an event
of taxability. As a result, if interest on the Bonds were to become 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 redemption, mandatory sinking fund
redemption or special mandatory redemption upon prepayment of the Special Taxes.
In addition, Congress is or may be considering in the future legislative proposals,
including some that carry retroactive effective dates, that, if enacted, would alter or eliminate the
exclusion from gross income for federal income tax purposes of interest on municipal bonds,
such as the Bonds. Prospective purchasers of the Bonds should consult their own tax advisors
regarding any pending or proposed federal tax legislation. The City can provide no assurance
that federal tax law will not change while the Bonds are outstanding or that any such changes
will not adversely affect the exclusion of interest on the Bonds from gross income for federal
income tax purposes. If the exclusion of interest on the Bonds from gross income for federal
income tax purposes were amended or eliminated, it is likely that the market price for the Bonds
would be adversely impacted.
Enforceability of Remedies
The remedies available to the Fiscal Agent and the registered owners of the Bonds upon
a default under the Fiscal Agent Agreement or any other document described in this Official
Statement are in many respects dependent upon regulatory and judicial actions that are often
subject to discretion and delay. Under existing law and judicial decisions, the remedies provided
for under such documents may not be readily available or may be limited. Any legal opinions to
be delivered concurrently with the issuance of the Bonds will be qualified to the extent that the
enforceability of the legal documents with respect to the Bonds is subject to limitations imposed
by bankruptcy, reorganization, insolvency or other similar laws affecting the rights of creditors
generally and by equitable remedies and proceedings generally.
Judicial remedies, such as foreclosure and enforcement of covenants, are subject to
exercise of judicial discretion. A California court may not strictly apply certain remedies or
enforce certain covenants if it concludes that application or enforcement would be unreasonable
under the circumstances and it may delay the application of such remedies and enforcement.
No Secondary Market
No representation is made concerning any secondary market for the Bonds. There can
be no assurance that any secondary market will develop for the Bonds. Investors should
understand the long-term and economic aspects of an investment in the Bonds and should
assume that they will have to bear the economic risks of their investment to maturity. An
investment in the Bonds may be unsuitable for any investor not able to hold the Bonds to
maturity.
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Disclosure to Future Purchasers
The willingness or ability of an owner of a parcel to pay the Special Tax, even if the
value of the property is sufficient to justify payment, may be affected by whether or not the
owner was given due notice of the Special Tax authorization at the time the owner purchased
the parcel, was informed of the amount of the Special Tax on the parcel should the Special Tax
be levied at the maximum tax rate and, at the time of such a levy, has the ability to pay it as well
as pay other expenses and obligations. The City has caused a Notice of Special Tax Lien to be
recorded in the Office of the Recorder for the County against the real property in the District.
Although 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 when purchasing real property within the District or
lending money thereon, as applicable.
California Civil Code Section 1102.6b requires that, in the case of transfers, 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 the above
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.
IRS Audit of Tax-Exempt Bond Issues
The Internal Revenue Service (the “IRS”) has initiated an expanded program for the
auditing of tax-exempt bond issues, including both random and targeted audits. It is possible
that the Bonds will be selected for audit by the IRS. It is also possible that the market value of
such Bonds might be affected as a result of such an audit of such Bonds (or by an audit of
similar bonds or securities).
Voter Initiatives
From time to time, initiative measures qualify for the State ballot pursuant to the State’s
constitutional initiative process and those measures could be adopted by State voters. The
adoption of any such initiative might place limitations on the ability of the State, the City, the
County or other local districts to increase revenues or to increase appropriations or on the ability
of the landowners to complete the development of the District. See “Property Values and
Property Development” above.
Under the State 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, including
Proposition 218, which was approved in the general election held on November 5, 1996, and
Proposition 26, which was approved on November 2, 2010.
Any such initiative may affect the collection of fees, taxes and other types of revenue by
local agencies such as the District. Subject to overriding federal 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
Special Tax Bonds.
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Proposition 218—Voter Approval for Local Government Taxes—Limitation on Fees,
Assessments, and Charges—Initiative Constitutional Amendment, added Articles XIIIC and
XIIID to the State Constitution, imposing certain vote requirements and other limitations on the
imposition of new or increased taxes, assessments and property-related fees and charges.
On November 2, 2010, State voters approved Proposition 26, entitled the “Supermajority
Vote to Pass New Taxes and Fees Act”. Section 1 of Proposition 26 declares that Proposition
26 is intended to limit the ability of the State Legislature and local government to circumvent
existing restrictions on increasing taxes by defining the new or expanded taxes as “fees.”
Proposition 26 amended Articles XIIIA and XIIIC of the State Constitution. The amendments to
Article XIIIA limit the ability of the State Legislature to impose higher taxes (as defined in
Proposition 26) without a two-thirds vote of the Legislature. Article XIIIC requires that all new
local taxes be submitted to the electorate before they become effective. Taxes for general
governmental purposes require a majority vote and taxes for specific purposes (“special taxes”)
require a two-thirds vote.
The Special Taxes and the Bonds were each authorized by a vote of the Developer as
the sole landowner, who constituted the qualified electors at the time of such voted
authorization. The District believes, therefore, that issuance of the Bonds does not require the
conduct of further proceedings under the Act, Proposition 218 or Proposition 26.
Like their antecedents, Proposition 218 and Proposition 26 are likely to undergo both
judicial and legislative scrutiny before the impact on the District can be determined. Certain
provisions of Proposition 218 and Proposition 26 may be examined by the courts for their
constitutionality under both State and federal constitutional law, the outcome of which cannot be
predicted.
Recent Case Law Related to the Mello-Roos Act
On August 1, 2014, the California Court of Appeal, Fourth Appellate District, issued its
opinion in City of San Diego v. Melvin Shapiro, et al. (D063997). The case involved a
Convention Center Facilities District (the “CCFD”) established by the City of San Diego. The
CCFD is a financing district established under San Diego’s city charter (the “Charter”) and was
intended to function much like a community facilities district established under the Act. The
CCFD was comprised of all of the real property in the entire city. However, the CCFD special
tax was to be levied only on properties in the CCFD that were improved with a hotel.
At the election to authorize the CCFD special tax, the CCFD proceedings limited the
electorate to owners of hotel properties and lessees of real property owned by a governmental
entity on which a hotel was located. Registered voters in the City of San Diego were not
permitted to vote. This definition of the qualified electors of the CCFD was based on Section
53326(c) of the Act, which generally provides that, if a special tax will not be apportioned in any
tax year on residential property, the legislative body may provide that the vote shall be by the
landowners of the proposed community facilities district whose property would be subject to the
special tax. The San Diego Court held that the CCFD special tax election did not comply with
its Charter and with applicable provisions of the State Constitution -- specifically Article XIIIA,
section 4 (“Cities, Counties and special districts, by a two-thirds vote of the qualified electors of
such district, may impose special taxes on such district . . ..”) and Article XIIIC, section 2(d) (“No
local government may impose, extend, or increase any special tax unless and until that tax is
submitted to the electorate and approved by a two-thirds vote.”) -- because the electors in the
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CCFD election should have been the registered voters residing within the CCFD (the
boundaries of which were coterminous with the boundaries of the City of San Diego).
As to the District, there were no registered voters within the District at the time of the
election to authorize the Special Taxes. Significantly, the San Diego Court expressly stated that
it was not addressing the validity of a landowner election to impose special taxes on property
pursuant to the Act in situations where there are fewer than 12 registered voters. Therefore, by
its terms, the San Diego Court’s holding does not apply to the special tax election in the District.
Moreover, Sections 53341 and 53359 of the Act establish a limited period of time in which
special taxes levied under the Act may be challenged by a third party, which time period has
now passed.
CONTINUING DISCLOSURE
The City
The City has covenanted for the benefit of owners of the Bonds to provide certain
financial information and operating data relating to Improvement Area No. 1 by not later than
nine months after the end of the City’s Fiscal Year (presently June 30) in each year (the “City
Annual Report”) commencing with its report for the 2016-17 Fiscal Year (due April 1, 2018) and
to provide notices of the occurrence of certain enumerated events.
The City Annual Reports and notice of a listed event will be filed with the Municipal
Securities Rulemaking Board. The covenants of the City have been made in order to assist the
Underwriter in complying with Securities and Exchange Commission Rule 15c2-12(b)(5) (the
“Rule”). The specific nature of the information to be contained in the annual reports or the
notices of listed events by the City is summarized in APPENDIX G-1.
[[The City has not previously entered into any continuing disclosure undertakings
pursuant to the Rule.]]
Supplemental annual reports, notices of rating changes and other filings to correct all of
the known failures by the City to comply with its continuing disclosure undertakings have been
made. The City has engaged contract support for the preparation and filing of its continuing
disclosure reports in order to help comply with future continuing disclosure obligations.
Brookfield BAH
Brookfield BAH, on behalf of itself and its Affiliates (which specifically includes Brookfield
Wilshire LLC and Brookfield Fillmore LLC, but specifically excludes the Developer and
CalAtlantic) has also agreed for the benefit of owners of the Bonds to provide certain
information relating to the property it or its affiliates owns in Improvement Area No. 1 by not later
than December 1st and June 1st of each year (reflecting reported information as of a date no
more than 60 days prior) beginning with the report due December 1, 2017 (the “Brookfield
BAH Periodic Reports”) and to provide notices of the occurrence of certain enumerated
events. The obligation of Brookfield BAH to provide such information is in effect only so long as
the Brookfield BAH and its Affiliates are collectively responsible for 20% or more of the Special
Taxes. Brookfield BAH’s reporting obligation may end in certain other circumstances, as
described in APPENDIX G-2. [[Brookfield BAH has not entered into any previous obligations to
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provide periodic reports and this will be Brookfield BAH’s first obligation to provide such
reports.]]
CalAtlantic
CalAtlantic, on behalf of itself and its Affiliates (which specifically excludes the
Developer, Brookfield Wilshire LLC and Brookfield Fillmore LLC) has also agreed for the benefit
of owners of the Bonds to provide certain information relating to the property it or its affiliates
owns in Improvement Area No. 1 by not later than December 1st and June 1st of each year
(reflecting reported information as of a date no more than 60 days prior) beginning with the
report due December 1, 2017 (the “CalAtlantic Periodic Reports”) and to provide notices of
the occurrence of certain enumerated events. The obligation of CalAtlantic to provide such
information is in effect only so long as the CalAtlantic and its Affiliates are collectively
responsible for 20% or more of the Special Taxes. CalAtlantic’s reporting obligation may end in
certain other circumstances, as described in APPENDIX G-3. [[CalAtlantic has entered into
previous obligations to provide periodic reports on numerous occasions, and has been in
material compliance with each such previous undertaking.]]
UNDERWRITING
The Bonds were purchased through negotiation by Prager & Co., LLC (the
“Underwriter”). The Underwriter agreed to purchase the Bonds at a price of $_________
(which is equal to the par amount of the Bonds, less an original issue discount of $_________
and less the Underwriter’s discount of $_________). The initial public offering prices set forth
on the inside cover page hereof may be changed by the Underwriter. The Underwriter may
offer and sell the Bonds to certain dealers and others at a price lower than the public offering
prices set forth on the cover page hereof.
MUNICIPAL ADVISOR
The City has retained Fieldman, Rolapp & Associates, Irvine, California, as Municipal
Advisor (the “Municipal Advisor”) in connection with the planning, structuring and issuance of
the Bonds. The Municipal Advisor is not obligated to undertake, and has not undertaken to
make, an independent verification or assume responsibility for the accuracy, completeness, or
fairness of the information contained in this Official Statement. The fees of the Municipal
Advisor are contingent upon the sale and delivery of the Bonds.
LEGAL OPINION
The validity of the Bonds and certain other legal matters are subject to the approving
opinion of Bond Counsel. A complete copy of the proposed form of Bond Counsel opinion is
contained in Appendix F to this Official Statement, and the final opinion will be made available to
registered owners of the Bonds at the time of delivery. The fees of Bond Counsel are
contingent upon the sale and delivery of the Bonds.
TAX MATTERS
[Tax language to come]
-66-
NO RATINGS
The City has not applied to a rating agency for the assignment of a rating to the Bonds
and does not contemplate applying for a rating.
NO LITIGATION
At the time of delivery of and payment for the Bonds, the City Attorney will deliver his
opinion that to the best of its knowledge there is no action, suit, proceeding, inquiry or
investigation at law or in equity before or by any court or regulatory agency pending against the
City affecting its existence or the titles of its officers to office or seeking to restrain or to enjoin
the issuance, sale or delivery of the Bonds, the application of the proceeds thereof in
accordance with the Fiscal Agent Agreement, or the collection or application of the Special Tax
to pay the principal of and interest on the Bonds, or in any way contesting or affecting the
validity or enforceability of the Bonds, the Fiscal Agent Agreement or any action of the City
contemplated by any of said documents, or in any way contesting the completeness or accuracy
of this Official Statement or any amendment or supplement thereto, or contesting the powers of
the City or its authority with respect to the Bonds or any action of the City contemplated by any
of said documents.
PROFESSIONAL FEES
Fees payable to certain professionals, including _______, __________, as Bond
Counsel, Jones Hall, A Professional Law Corporation, San Francisco, California, as
Disclosure Counsel, Fieldman Rolapp & Associates, as Municipal Advisor, the Trustee and the
Underwriter are contingent upon the issuance of the Bonds.
EXECUTION
The execution and delivery of this Official Statement by the City has been duly
authorized by the City Council on behalf of the District and Improvement Area No. 1.
CITY OF DUBLIN
By:
Administrative Services Director/
Finance Director
A-1
APPENDIX A
RATE AND METHOD OF APPORTIONMENT OF SPECIAL TAX
B-1
APPENDIX B
THE APPRAISAL
C-1
APPENDIX C
SUMMARY OF CERTAIN PROVISIONS OF THE FISCAL AGENT AGREEMENT
D-1
APPENDIX D
THE CITY OF DUBLIN AND ALAMEDA COUNTY
General
The City. Incorporated in 1982, the City of Dublin (the “City”) is a suburban city of
the San Francisco East Bay and Tri-Valley regions of Alameda County (the “County”). It is
located approximately 35 miles east of downtown San Francisco, 23 miles east of downtown
Oakland, and 31 miles north of downtown San Jose.
The City operates under the Council-Manager form of government. Policy making and
legislative authority are vested in the City Council, which consists of an elected Mayor, who
serves a two-year term, and four Council members each elected to a four-year term.
The County. The County is located on the east side of the San Francisco Bay, south of
the City of Oakland and approximately ten miles west of the City of San Francisco. Access to
San Francisco is provided by the San Francisco Bay Bridge. The northern part of Alameda
County has direct access to San Francisco Bay and the City of San Francisco. It is highly
diversified with residential areas, as well as traditional heavy industry, the University of
California at Berkeley, the Port of Oakland, and sophisticated manufacturing, computer services
and biotechnology firms. The middle of the County is also highly developed including older
established residential and industrial areas. The southeastern corner of the County has seen
strong growth in residential development and manufacturing. Many high-tech firms have moved
from neighboring Silicon Valley in Santa Clara County to this area. The southwestern corner of
the County has seen the most development in recent years due to land availability. Agriculture
and the rural characteristics of this area are disappearing as the region maintains its position as
the fastest growing residential, commercial and industrial part of the County.
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D-2
Population
The following table lists population estimates for the City, the County and the State of
California for the last five calendar years, as of January 1.
CITY OF DUBLIN, ALAMEDA COUNTYAND STATE OF CALIFORNIA
Population Estimates
Calendar Years 2013 through 2017 as of January 1
Year City of Dublin Alameda County State of California
2013 50,197 1,567,091 38,238,492
2014 53,648 1,588,348 38,572,211
2015 56,164 1,611,318 38,915,880
2016 57,394 1,629,233 39,189,035
2017 59,686 1,645,359 39,523,613
Source: State Department of Finance estimates (as of January 1).
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D-3
Employment and Industry
The District is included in the Oakland-Hayward-Berkeley Metropolitan Division (“MD”).
The unemployment rate in the Oakland-Hayward-Berkeley MD was 3.5 percent in April 2017,
down from a revised 3.9 percent in March 2017, and below the year-ago estimate of 4.3
percent. This compares with an unadjusted unemployment rate of 4.5 percent for California and
4.1 percent for the nation during the same period. The unemployment rate was 3.5 percent in
the County and 3.6 percent in Contra Costa County.
The table below list employment by industry group for Alameda and Contra Costa
Counties for the years 2012 to 2016.
OAKLAND-FREMONT-HAYWARD MD
(Alameda and Contra Costa Counties)
Annual Averages Civilian Labor Force, Employment and Unemployment,
Employment by Industry
(March 2016 Benchmark)
2012 2013 2014 2015 2016
Civilian Labor Force (1) 1,336,300 1,344,100 1,355,600 1,374,800 1,394,400
Employment 1,218,700 1,245,500 1,275,000 1,308,100 1,334,200
Unemployment 117,500 98,600 80,600 66,700 60,200
Unemployment Rate 8.8% 7.3% 5.9% 4.8% 4.3%
Wage and Salary Employment: (2)
Agriculture 1,500 1,400 1,300 1,200 1,300
Mining and Logging 900 900 800 900 900
Construction 52,000 56,400 58,600 62,400 67,500
Manufacturing 79,900 80,100 82,800 86,600 89,900
Wholesale Trade 43,700 45,200 46,200 47,600 49,000
Retail Trade 104,100 107,700 109,900 113,000 115,000
Transportation, Warehousing, Utilities 32,900 33,500 35,600 38,300 38,700
Information 22,100 21,500 21,300 22,400 26,400
Finance and Insurance 33,400 33,500 32,600 32,800 40,300
Real Estate and Rental and Leasing 15,400 16,200 16,800 16,800 17,000
Professional and Business Services 166,500 173,400 178,800 183,000 180,800
Educational and Health Services 164,700 170,500 173,100 178,400 184,900
Leisure and Hospitality 91,800 97,200 102,100 106,300 111,400
Other Services 36,400 37,000 37,500 38,000 39,200
Federal Government 14,200 13,800 13,800 13,800 13,900
State Government 38,500 38,900 39,300 39,800 39,800
Local Government 110,100 110,600 113,400 115,200 120,200
Total, All Industries (3) 1,008,000 1,037,500 1,063,600 1,096,300 1,136,200
(1) Labor force data is by place of residence;; includes self-employed individuals, unpaid family workers, household domestic
workers, and workers on strike.
(2) Industry employment is by place of work;; excludes self-employed individuals, unpaid family workers, household domestic
workers, and workers on strike.
(3) Totals may not add due to rounding.
Source: State of California Employment Development Department.
D-4
Principal Employers
The following table shows the principal employers in the City, as shown in the City’s
Comprehensive Annual Financial Report for the fiscal year ending June 30, 2016.
CITY OF DUBLIN
Principal Employers
As of June
Employer
Number of
Employees Rank
United States Government & Federal
Correction Institute 2,100 1
Dublin Unified School District 915 2
SAP (Formerly: Sybase Corporation) 700 3
Ross Stores Headquarters 500 4
Zeiss Meditec 500 4
Target Stores 350 5
Callidus Cloud 350 5
County of Alameda 325 6
De Silva Gates Construction 300 7
Micro Dental Laboratories 300 7
Safeway 280 8
City of Dublin 237 9
Whole Foods 233 10
Source: City of Dublin, California. Comprehensive Annual Financial Report for the fiscal year
ended June 30, 2016.
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D-5
Major Employers
The table below lists the major employers in the County, listed alphabetically.
ALAMEDA COUNTY
Major Employers
Employer Name Location Industry
Alameda County Law Enforcement Oakland Government Offices-County
Alameda County Sheriff's Ofc Oakland Government Offices-County
Alameda Health System San Leandro Health Care Management
Alta Bates Summit Medical Ctr Berkeley Hospitals
Alta Bates Summit Medical Ctr Oakland Hospitals
Bayer Health Care Berkeley Laboratories-Pharmaceutical (mfrs)
California State-East Bay Hayward Schools-Universities & Colleges Academic
Children’s Hosp & Research Ctr Oakland Hospitals
Coopervision Inc Advanced Pleasanton Optical Good-Wholesale
Dell EMC Pleasanton Computer Software
East Bay Water Oakland Transit Lines
Highland Hospital Oakland Hospitals
Kaiser Oakland Oakland Health Services
Life Scan Inc Fremont Physicians & Surgeons Equip & Supls-Mfrs
Merritt Pavilion Lab Oakland Laboratories-Medical
Oakland Police Patrol Div Oakland Police Departments
Residential Stdents Svc Program Berkeley Schools-Universities & Colleges Academic
Safeway Inc Pleasanton Grocers-Retail
Tesla Motors Fremont Automobile Dealers-Electric Cars
Transportation Dept-California Oakland Government Offices-State
University of Ca-Berkeley Berkeley Schools-Universities & Colleges Academic
University of CA-BERKELEY Berkeley Schools-Universities & Colleges Academic
Valley Care Health System Livermore Health Services
Washington Hospital Healthcare Sys Fremont Hospitals
Western Digital Corp Fremont Electronic Equipment & Supplies-Mfrs
Source: State of California Employment Development Department, extracted from the America's Labor Market
Information System (ALMIS) Employer Database, 2017 2nd Edition.
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D-6
Construction Activity
Provided below are the building permits and valuations for the City and the County for
calendar years 2012 through 2016. Data for calendar year 2017 are not yet available.
CITY OF DUBLIN
Total Building Permit Valuations
(Valuations in Thousands)
2012 2013 2014 2015 2016
Permit Valuation
New Single-family $214,736.6 $256,827.4 $199,190.9 $143,137.7 $182,687.1
New Multi-family 108,683.9 12,662.4 156,240.0 54,259.2 205,534.4
Res. Alterations/Additions 2,414.4 3,889.5 7,873.4 4,708.6 66,984.6
Total Residential 325,834.9 273,379.3 363,304.30 202,105.5 455,206.1
New Commercial 3,986.7 6,687.6 16,385.0 5,619.2 2,794.8
New Industrial 134.0 0.0 0.0 0.0 0.0
New Other 416.7 3,616.7 16,670.6 35,866.5 11,395.8
Com. Alterations/Additions 2,721.1 25,390.7 24,777.0 28,895.9 19,204.1
Total Nonresidential 7,258.5 35,695.0 57,832.6 70,381.6 33,394.7
New Dwelling Units
Single Family 586 634 481 414 528
Multiple Family 368 34 698 525 74
TOTAL 954 668 1,179 939 602
Source: Construction Industry Research Board, Building Permit Summary.
ALAMEDA COUNTY
Total Building Permit Valuations
(Valuations in Thousands)
2012 2013 2014 2015 2016
Permit Valuation
New Single-family $372,939.4 $451,279.5 $400,498.1 $576,948.5 $791,891.2
New Multi-family 343,669.8 300,514.9 392,331.4 456,361.3 497,341.3
Res. Alterations/Additions 235,264.8 227,675.7 325,493.9 344,975.9 466,239.6
Total Residential 951,874.0 979,470.2 1,118,323.4 1,378,285.7 1,755,472.1
New Commercial 94,705.8 122,360.6 175,958.9 187,303.4 444,308.9
New Industrial 29,808.2 140,059.5 102,926.6 92,470.2 53,242.1
New Other 6,764.1 49,801.8 147,944.7 193,029.9 87,213.3
Com. Alterations/Additions 352,261.1 364,237.6 599,941.3 673,633.6 775,031.8
Total Nonresidential 483,539.2 676,459.5 1,026,771.5 1,146,437.1 1,359,796.1
New Dwelling Units
Single Family 1,119 1,339 1,076 1,671 2,348
Multiple Family 1,508 2,023 2,048 3,370 3,171
TOTAL 2,627 3,362 3,124 5,041 5,519
Source: Construction Industry Research Board, Building Permit Summary.
D-7
Effective Buying Income
“Effective Buying Income” is defined as personal income less personal tax and nontax
payments, a number often referred to as “disposable” or “after-tax” income. Personal income is
the aggregate of wages and salaries, other labor-related income (such as employer
contributions to private pension funds), proprietor’s income, rental income (which includes
imputed rental income of owner-occupants of non-farm dwellings), dividends paid by
corporations, interest income from all sources, and transfer payments (such as pensions and
welfare assistance). Deducted from this total are personal taxes (federal, state and local),
nontax payments (fines, fees, penalties, etc.) and personal contributions to social insurance.
According to U.S. government definitions, the resultant figure is commonly known as
“disposable personal income.”
The following table summarizes the median household effective buying income for the
City, the County, the State and the United States for the period 2012 through 2016.
CITY OF DUBLIN AND ALAMEDA COUNTY
Effective Buying Income
Median Household
As of January 1, 2012 Through 2016
I.
Year
Area
Total Effective
Buying Income
(000’s Omitted)
Median Household
Effective Buying
Income
2012 City of Dublin $1,669,493 $82,308
Alameda County 43,677,855 55,396
California 864,088,828 47,307
United States 6,737,867,730 41,358
2013 City of Dublin $1,719,630 $84,244
Alameda County 43,770,518 57,467
California 858,676,636 48,340
United States 6,982,757,379 43,715
2014 City of Dublin $1,896,895 $87,311
Alameda County 47,744,408 60,575
California 901,189,699 50,072
United States 7,357,153,421 45,448
2015 City of Dublin $2,149,098 $94,247
Alameda County 52,448,661 64,030
California 981,231,666 53,589
United States 7,357,153,421 45,448
2016 City of Dublin 2,278,236 95,456
Alameda County 56,091,066 67,631
California 1,036,142,723 55,681
United States 8,132,748,136 48,043
Source: The Nielsen Company (US), Inc.
D-8
Taxable Transactions
Summaries of historic taxable sales within the City and the County during the past five
years in which data is available are shown in the following tables. Annual figures are not yet
available for 2016.
Total taxable sales during calendar year 2015 in the City were reported to be $1.68
billion, a 4.77% increase over the total taxable sales of $1.61 billion reported during calendar
year 2014.
CITY OF DUBLIN
Taxable Transactions
Number of Permits and Valuation of Taxable Transactions
(Valuations in Thousands)
Retail Stores Total All Outlets
Number
of Permits
Taxable
Transactions
Number
of Permits
Taxable
Transactions
2011 678 1,042,872 1,033 1,241,228
2012 716 1,213,278 1,071 1,436,142
2013 746 1,261,933 1,099 1,518,125
2014 763 1,329,250 1,125 1,606,966
2015* N/A 1,379,226 N/A 1,683,547
*Annual permit figures for calendar year 2015 are not yet available.
Source: California State Board of Equalization, Taxable Sales in California (Sales & Use Tax).
Total taxable transactions during calendar year 2015 in the County were reported to be
$29.77 billion, a 4.91% increase over the total taxable transactions of $28.38 billion reported
during calendar year 2014.
ALAMEDA COUNTY
Taxable Transactions
Number of Permits and Valuation of Taxable Transactions
(Valuations in Thousands)
Retail Stores Total All Outlets
Number
of Permits
Taxable
Transactions
Number
of Permits
Taxable
Transactions
2011 24,809 14,519,756 38,577 23,430,799
2012 26,027 15,781,349 39,706 25,181,571
2013 27,017 16,893,102 40,662 26,624,571
2014 27,152 17,820,857 40,746 28,377,714
2015* N/A 18,702,806 N/A 29,770,157
*Annual permit figures for calendar year 2015 are not yet available.
Source: California State Board of Equalization, Taxable Sales in California (Sales & Use Tax).
E-1
APPENDIX E
PRICING REPORT
F-1
APPENDIX F
FORM OF OPINION OF BOND COUNSEL
G-1
APPENDIX G
FORM OF CONTINUING DISCLOSURE UNDERTAKINGS
G-1-1
APPENDIX G-1
CONTINUING DISCLOSURE CERTIFICATE
(City)
$________
CITY OF DUBLIN
IMPROVEMENT AREA NO. 1
COMMUNITY FACILITIES DISTRICT NO. 2015-1
(DUBLIN CROSSING)
SPECIAL TAX BONDS, SERIES 2017
This CONTINUING DISCLOSURE CERTIFICATE (this “Disclosure Certificate”), dated
as of _____, 2017 is executed and delivered by the CITY OF DUBLIN (the “City”), for and on
behalf of the City of Dublin Improvement Area No. 1 Community Facilities District No. 2015-1
(Dublin Crossing) (the “District”), in connection with the execution and delivery of its City of
Dublin Improvement Area No. 1 Community Facilities District No. 2015-1 (Dublin Crossing)
Special Tax Bonds, Series 2017 (the “Bonds”). The Bonds are being executed and delivered
pursuant to a Fiscal Agent Agreement, dated as of _______, 2017 (the “Fiscal Agent
Agreement”), by and between the City and U.S. Bank National Association, as fiscal agent (the
“Fiscal Agent”).
The City covenants and agrees, for and on behalf of the District, as follows:
Section 1. Purpose of the Disclosure Certificate. This Disclosure Certificate is being
executed and delivered by the City for the benefit of the holders and beneficial owners of the
Bonds and in order to assist the Participating Underwriter in complying with the Rule.
Section 2. Definitions. In addition to the definitions set forth above and in the Fiscal
Agent Agreement, which apply to any capitalized term used in this Disclosure Certificate unless
otherwise defined herein, the following capitalized terms shall have the following meanings:
“Annual Report” means any Annual Report provided by the City pursuant to, and as
described in, Sections 3 and 4 of this Disclosure Certificate.
“Annual Report Date” means the date that is nine months after the end of the City’s
Fiscal Year (currently April 1 based on the City’s Fiscal Year end of June 30).
“Dissemination Agent” means, initially, the City, or any successor Dissemination Agent
designated in writing by the City and which has filed with the City a written acceptance of such
designation in accordance with Section 8 of this Disclosure Certificate.
“Listed Events” means any of the events listed in Section 5(a) of this Disclosure
Certificate.
“MSRB” means the Municipal Securities Rulemaking Board, which has been designated
by the Securities and Exchange Commission as the sole repository of disclosure information for
purposes of the Rule, or any other repository of disclosure information that may be designated
by the Securities and Exchange Commission as such for purposes of the Rule in the future.
G-1-2
“Official Statement” means the final official statement executed by the City in connection
with the issuance of the Bonds.
“Participating Underwriter” means Prager & Co., LLC, as the original underwriter of the
Bonds.
“Rule” means Rule 15c2-12(b)(5) adopted by the Securities and Exchange Commission
under the Securities Exchange Act of 1934, as it may be amended from time to time.
“Special Taxes” means the special taxes of the District levied on taxable property within
the District.
Section 3. Provision of Annual Reports.
(a) The City shall, or shall cause the Dissemination Agent to, not later than the
Annual Report Date, commencing April 1, 2018, with the report for the 2016-17 Fiscal Year,
provide to the MSRB, in an electronic format as prescribed by the MSRB, an Annual Report that
is consistent with the requirements of Section 4 of this Disclosure Certificate. Not later than 15
Business Days prior to the Annual Report Date, the City shall provide the Annual Report to the
Dissemination Agent (if other than the City). If by 15 Business Days prior to the Annual Report
Date the Dissemination Agent (if other than the City) has not received a copy of the Annual
Report, the Dissemination Agent shall contact the City to determine if the City is in compliance
with the previous sentence. The Annual Report may be submitted as a single document or as
separate documents comprising a package, and may include by reference other information as
provided in Section 4 of this Disclosure Certificate;; provided, that the audited financial
statements of the City may be submitted separately from the balance of the Annual Report, and
later than the Annual Report Date, if not available by that date. If the City’s Fiscal Year
changes, it shall give notice of such change in the same manner as for a Listed Event. The City
shall provide a written certification with each Annual Report furnished to the Dissemination
Agent to the effect that such Annual Report constitutes the Annual Report required to be
furnished by the City hereunder.
(b) If the City does not provide (or cause the Dissemination Agent to provide) an
Annual Report by the Annual Report Date, the City shall provide (or cause the Dissemination
Agent to provide) to the MSRB in a timely manner, in an electronic format as prescribed by the
MSRB, a notice in substantially the form attached as Exhibit A to this Disclosure Certificate.
(c) With respect to each Annual Report, the Dissemination Agent shall:
(i) determine prior to each Annual Report Date the then-applicable rules and
electronic format prescribed by the MSRB for the filing of annual continuing disclosure
reports;; and
(ii) if the Dissemination Agent is other than the City, file a report with the City
certifying that the Annual Report has been provided pursuant to this Disclosure
Certificate, and stating the date it was provided.
Section 4. Content of Annual Reports. The City’s Annual Report shall contain or
incorporate by reference the following:
G-1-3
(a) The City’s audited financial statements prepared in accordance with generally
accepted accounting principles as promulgated to apply to governmental entities from time to
time by the Governmental Accounting Standards Board. If the City’s audited financial
statements are not available by the Annual Report Date, the Annual Report shall contain
unaudited financial statements in a format similar to the financial statements contained in the
Official Statement, and the audited financial statements shall be filed in the same manner as the
Annual Report when they become available.
(b) The following information:
(i) Principal amount of all outstanding bonds of the District.
(ii) Balance in the improvement fund or construction account.
(iii) Balance in debt service reserve fund, and statement of the reserve fund
requirement. Statement of projected reserve fund draw, if any.
(iv) Balance in other funds and accounts held by the City or Fiscal Agent
related to the Bonds.
(v) Additional debt authorized by the City and payable from or secured by
assessments or special taxes with respect to property within the District.
(vi) The Special Tax levy, collections, the delinquency rate, total amount of
delinquencies, number of parcels delinquent in payment for the five most recent Fiscal
Years.
(vii) Notwithstanding the June 30th reporting date for the Annual Report, the
following information shall be reported as of the last day of the month immediately
preceding the date of the Annual Report for which such data is available rather than as
of June 30th: The identity of each delinquent taxpayer responsible for 5% or more of
total special tax/assessment levied, and for each such taxpayer, the applicable assessor
parcel number, assessed value of applicable properties, amount of Special Tax levied,
amount delinquent by parcel number and status of foreclosure proceedings. If any
foreclosure has been completed, a summary of results of foreclosure sales or transfers
shall be provided.
(viii) Most recently available total assessed value of all parcels subject to the
Special Tax (in total, not by individual APNs).
(ix) Top Ten Taxpayers (substantially in the form of Table 6 but excluding any
appraised values, overlapping debt information and special tax-related projections).
(x) To the extent not already provided pursuant to (ix) above, list of
landowners and assessor’s parcel number of parcels subject to 5% or more of the
Special Tax levy, including the following information: development status to the extent
shown in City records, land use classification, and assessed value (land and
improvements). The reporting of development status shall coincide with cut-off dates
applicable to the latest special tax levy.
G-1-4
(c) In addition to any of the information expressly required to be provided under this
Disclosure Certificate, the City shall provide such further material information, if any, as may be
necessary to make the specifically required statements, in the light of the circumstances under
which they are made, not misleading.
(d) Any or all of the items listed above may be included by specific reference to other
documents, including official statements of debt issues of the City or related public entities,
which are available to the public on the MSRB’s Internet web site or filed with the Securities and
Exchange Commission. The City shall clearly identify each such other document so included by
reference.
Section 5. Reporting of Listed Events.
(a) The City shall give, or cause to be given, notice of the occurrence of any of the
following Listed Events with respect to the Bonds:
(1) Principal and interest payment delinquencies.
(2) Non-payment related defaults, if material.
(3) Unscheduled draws on debt service reserves reflecting financial
difficulties.
(4) Unscheduled draws on credit enhancements reflecting financial
difficulties.
(5) Substitution of credit or liquidity providers, or their failure to perform.
(6) Adverse tax opinions, the issuance by the Internal Revenue Service of
proposed or final determinations of taxability, Notices of Proposed Issue
(IRS Form 5701-TEB) or other material notices or determinations with
respect to the tax status of the security, or other material events affecting
the tax status of the security.
(7) Modifications to rights of security holders, if material.
(8) Bond calls, if material, and tender offers.
(9) Defeasances.
(10) Release, substitution, or sale of property securing repayment of the
securities, if material.
(11) Rating changes.
(12) Bankruptcy, insolvency, receivership or similar event of the City or other
obligated person.
(13) The consummation of a merger, consolidation, or acquisition involving the
City or an obligated person, or the sale of all or substantially all of the
assets of the City or an obligated person (other than in the ordinary
G-1-5
course of business), the entry into a definitive agreement to undertake
such an action, or the termination of a definitive agreement relating to any
such actions, other than pursuant to its terms, if material.
(14) Appointment of a successor or additional fiscal agent or the change of
name of the fiscal agent, if material.
(b) Whenever the City obtains knowledge of the occurrence of a Listed Event, the
City shall, or shall cause the Dissemination Agent (if not the City) to, file a notice of such
occurrence with the MSRB, in an electronic format as prescribed by the MSRB, in a timely
manner not in excess of 10 business days after the occurrence of the Listed Event.
(c) The City acknowledges that the events described in subparagraphs (a)(2), (a)(7),
(a)(8) (if the event is a bond call), (a)(10), (a)(13), and (a)(14) of this Section 5 contain the
qualifier “if material” and that subparagraph (a)(6) also contains the qualifier “material” with
respect to certain notices, determinations or other events affecting the tax status of the Bonds.
The City shall cause a notice to be filed as set forth in paragraph (b) above with respect to any
such event only to the extent that it determines the event’s occurrence is material for purposes
of U.S. federal securities law. Whenever the City obtains knowledge of the occurrence of any of
these Listed Events, the City will as soon as possible determine if such event would be material
under applicable federal securities law. If such event is determined to be material, the City will
cause a notice to be filed as set forth in paragraph (b) above.
(d) For purposes of this Disclosure Certificate, any event described in paragraph
(a)(12) above is considered to occur when any of the following occur: the appointment of a
receiver, fiscal agent, or similar officer for the City in a proceeding under the United States
Bankruptcy Code or in any other proceeding under state or federal law in which a court or
governmental authority has assumed jurisdiction over substantially all of the assets or business
of the City, or if such jurisdiction has been assumed by leaving the existing governing body and
officials or officers in possession but subject to the supervision and orders of a court or
governmental authority, or the entry of an order confirming a plan of reorganization,
arrangement, or liquidation by a court or governmental authority having supervision or
jurisdiction over substantially all of the assets or business of the City.
Section 6. Identifying Information for Filings with the MSRB. All documents provided to
the MSRB pursuant to this Disclosure Certificate shall be accompanied by identifying
information as prescribed by the MSRB.
Section 7. Termination of Reporting Obligation. The City’s obligations under this
Disclosure Certificate shall terminate upon the legal defeasance, prior redemption or payment in
full of all of the Bonds. If such termination occurs prior to the final maturity of the Bonds, the City
shall give notice of such termination in the same manner as for a Listed Event under Section
5(c).
Section 8. Dissemination Agent. The City may, from time to time, appoint or engage a
Dissemination Agent to assist it in carrying out its obligations under this Disclosure Certificate,
and may discharge any Dissemination Agent, with or without appointing a successor
Dissemination Agent. Any Dissemination Agent may resign by providing 30 days’ written notice
to the City. The initial Dissemination Agent shall be the City.
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Section 9. Amendment;; Waiver. Notwithstanding any other provision of this Disclosure
Certificate, the City may amend this Disclosure Certificate, and any provision of this Disclosure
Certificate may be waived, provided that the following conditions are satisfied:
(a) if the amendment or waiver relates to the provisions of Sections 3(a), 4 or
5(a), it may only be made in connection with a change in circumstances that arises from
a change in legal requirements, change in law, or change in the identity, nature, or
status of an obligated person with respect to the Bonds, or type of business conducted;;
and
(b) the proposed amendment or waiver either (i) is approved by holders of
the Bonds in the manner provided in the Fiscal Agent Agreement for amendments to the
Fiscal Agent Agreement with the consent of holders, or (ii) does not, in the opinion of
nationally recognized bond counsel, materially impair the interests of the holders or
beneficial owners of the Bonds.
If the annual financial information or operating data to be provided in the Annual Report
is amended pursuant to the provisions hereof, the first Annual Report filed pursuant hereto
containing the amended operating data or financial information shall explain, in narrative form,
the reasons for the amendment and the impact of the change in the type of operating data or
financial information being provided.
If an amendment is made to this Disclosure Certificate modifying the accounting
principles to be followed in preparing financial statements, the Annual Report for the year in
which the change is made shall present a comparison between the financial statements or
information prepared on the basis of the new accounting principles and those prepared on the
basis of the former accounting principles. The comparison shall include a qualitative discussion
of the differences in the accounting principles and the impact of the change in the accounting
principles on the presentation of the financial information, in order to provide information to
investors to enable them to evaluate the ability of the City to meet its obligations. To the extent
reasonably feasible, the comparison shall be quantitative.
A notice of any amendment made pursuant to this Section 9 shall be filed in the same
manner as for a Listed Event under Section 5(b).
Section 10. Additional Information. Nothing in this Disclosure Certificate shall be deemed
to prevent the City from disseminating any other information, using the means of dissemination
set forth in this Disclosure Certificate or any other means of communication, or including any
other information in any Annual Report or notice of occurrence of a Listed Event, in addition to
that which is required by this Disclosure Certificate. If the City chooses to include any
information in any Annual Report or notice of occurrence of a Listed Event in addition to that
which is specifically required by this Disclosure Certificate, the City shall have no obligation
under this Disclosure Certificate to update such information or include it in any future Annual
Report or notice of occurrence of a Listed Event.
Section 11. Default. If the City fails to comply with any provision of this Disclosure
Certificate, the Participating Underwriter or any holder or beneficial owner of the Bonds may
take such actions as may be necessary and appropriate, including seeking mandate or specific
performance by court order, to cause the City to comply with its obligations under this
Disclosure Certificate. A default under this Disclosure Certificate shall not be deemed an Event
of Default under the Fiscal Agent Agreement, and the sole remedy under this Disclosure
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Certificate in the event of any failure of the City to comply with this Disclosure Certificate shall
be an action to compel performance.
Section 12. Duties, Immunities and Liabilities of Dissemination Agent.
(a) The Dissemination Agent shall have only such duties as are specifically set forth in
this Disclosure Certificate, and the City agrees to indemnify and save harmless the
Dissemination Agent, its officers, directors, employees and agents (each, an “Indemnified
Party”), against any loss, expense and liability which it may incur arising out of or in the exercise
or performance of its powers and duties hereunder, including the reasonable costs and
expenses (including reasonable attorneys’ fees) of defending against any claim of liability, but
excluding losses, liabilities, costs and expenses due to an Indemnified Party’s negligence, willful
misconduct or failure to perform its duties hereunder. The Dissemination Agent shall have no
duty or obligation to review any information provided to it by the City hereunder, and shall not be
deemed to be acting in any fiduciary capacity for the City, the holders and beneficial owners
from time to time of the Bonds or any other party. The obligations of the City under this Section
shall survive resignation or removal of the Dissemination Agent and payment of the Bonds.
(b) The Dissemination Agent shall be paid compensation by the City for its services
provided hereunder in accordance with its schedule of fees as amended from time to time, and
shall be reimbursed for all reasonable and documented expenses, legal fees and advances
made or incurred by the Dissemination Agent in the performance of its duties hereunder.
Section 13. Beneficiaries. This Disclosure Certificate shall inure solely to the benefit of
the City, the Dissemination Agent, the Participating Underwriter and the holders and beneficial
owners from time to time of the Bonds, and shall create no rights in any other person or entity.
Section 14. Counterparts. This Disclosure Certificate may be executed in several
counterparts, each of which shall be regarded as an original, and all of which shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Disclosure Certificate as
of the date first above written.
CITY OF DUBLIN, for and on behalf of City of
Dublin Improvement Area No. 1 Community
Facilities District No. 2015-1 (Dublin Crossing)
By:
Authorized Officer
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EXHIBIT A
NOTICE OF FAILURE TO FILE ANNUAL REPORT
Name of Issuer: City of Dublin
Name of Bond Issue: $____________ City of Dublin Improvement Area No. 1
Community Facilities District No. 2015-1 (Dublin Crossing) Special
Tax Bonds, Series 2017
Date of Issuance: ______________, 2017
NOTICE IS HEREBY GIVEN that the City of Dublin (the “City”), on behalf of City of
Dublin Improvement Area No. 1 Community Facilities District No. 2015-1 (Dublin Crossing), has
not provided an Annual Report with respect to the above-named Bonds as required by the
Fiscal Agent Agreement dated as of ______, 2017 (the “Fiscal Agent Agreement”) by and
between the City and U.S. Bank National Association., as Fiscal Agent. The City anticipates
that the Annual Report will be filed by _____________.
Dated: _______________
[Dissemination Agent]
By:
Authorized Officer
cc: City of Dublin
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APPENDIX G-2
CONTINUING DISCLOSURE AGREEMENT
(Developer - Brookfield Bay Area Holdings LLC)
This Developer Continuing Disclosure Agreement (the “Disclosure Agreement”), dated
July __, 2017, is executed and delivered by Brookfield Bay Area Holdings LLC, a Delaware
limited liability company (the “Landowner”), and __________, as dissemination agent (the
“Dissemination Agent”), in connection with the issuance by the City of Dublin (the “City”) with
respect to the $__________ City of Dublin Community Facilities District No. 2015-1 (Dublin
Crossing), Improvement Area No. 1, Special Tax Bonds, Series 2017 (the “Bonds”). The
Bonds are being issued under a Fiscal Agent Agreement, dated as of __________ 1, 2017 (the
“Fiscal Agent Agreement”), between the City and U.S. Bank National Association, as Fiscal
Agent (the “Fiscal Agent”). The Landowner covenants and agrees as follows:
SECTION 1. Purpose of the Disclosure Agreement. This Disclosure Agreement is
being executed and delivered by the Landowner to assist the Underwriter in the marketing of the
Bonds.
SECTION 2. Definitions. Unless otherwise defined in this Section, the following
capitalized terms shall have the following meanings:
“Affiliate” shall mean, with respect to the Landowner, (a) each Person that, directly or
indirectly, owns or controls, whether beneficially or as an agent, guardian or other fiduciary, fifty
percent (50%) or more of the outstanding voting securities of the Landowner, or (b) each Person
that controls, is controlled by or is under common control with the Landowner;; provided,
however, that in no case shall any of the following be deemed to be an Affiliate of the
Landowner for purposes of this Disclosure Agreement: (i) the City;; (ii) Dublin Crossing, LLC;; or
(iii) CalAtlantic Group, Inc. or any entity directly or indirectly, owned or controlled by CalAtlantic
Group, Inc. For the purpose of this definition, “control” of a Person shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of its management or policies,
unless such waiver is solely the result of an official position with such Person.
“Annual Report” shall mean any Annual Report to be provided by the Landowner on or
prior to June 15 of each year pursuant to, and as described in, Sections 3 and 4 of this
Disclosure Agreement.
“Beneficial Owner” shall mean any person which has or shares the power, directly or
indirectly, to make investment decisions concerning ownership of the Bonds (including persons
holding Bonds through nominees, depositories or other intermediaries).
“Dissemination Agent” shall mean __________, acting in its capacity as Dissemination
Agent hereunder, or any successor Dissemination Agent designated in writing by the
Landowner and which has filed with the Landowner and the City a written acceptance of such
designation.
“District” shall mean City of Dublin Community Facilities District No. 2015-1 (Dublin
Crossing).
“EMMA” shall mean the Electronic Municipal Market Access system of the MSRB.
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“Improvement Area No. 1” means Improvement Area No. 1 of the District.
“Listed Event” shall mean any of the events listed in Section 5(a) of this Disclosure
Agreement.
“MSRB” shall mean the Municipal Securities Rulemaking Board.
“Official Statement” shall mean the final Official Statement, dated July __, 2017,
relating to the Bonds.
“Person” shall mean any individual, corporation, partnership, association, limited liability
company, joint stock company, trust, unincorporated organization, or government or political
subdivision thereof.
“Repository” shall mean the MSRB or any other entity designated or authorized by the
Securities and Exchange Commission to receive continuing disclosure reports. Unless
otherwise designated by the MSRB or the Securities and Exchange Commission, filings with the
MSRB are to be made through the EMMA website of the MSRB, currently located at
http://emma.msrb.org.
“Semiannual Report” shall mean any report to be provided by the Landowner on or
prior to December 15 of each year pursuant to, and as described in, Sections 3 and 4 of this
Disclosure Agreement.
“Underwriter” shall mean the original underwriter of the Bonds, Prager & Co., LLC.
SECTION 3. Provision of Annual Reports and Semiannual Reports.
(a) Until such time as the Landowner’s reporting requirements terminate pursuant to
Section 6 below, the Landowner shall, or upon receipt of the Annual Report from the Landowner
the Dissemination Agent shall, not later than June 15 of each year, commencing June 15, 2018,
provide to the Repository an Annual Report which is consistent with the requirements of Section
4 of this Disclosure Agreement. If, in any year, June 15 falls on a Saturday, Sunday, or a
holiday, such deadline shall be extended to the next following day that is not a Saturday,
Sunday, or holiday. The Annual Report may be submitted as a single document or as separate
documents comprising a package, and may include by reference other information as provided
in Section 4 of this Disclosure Agreement.
In addition, until such time as the Landowner’s reporting requirements terminate
pursuant to Section 6 below, the Landowner shall, or upon receipt of the Semiannual Report
from the Landowner the Dissemination Agent shall, not later than December 15 of each year,
commencing December 15, 2017, provide to the Repository a Semiannual Report which is
consistent with the requirements of Section 4 of this Disclosure Agreement. If, in any year,
December 15 falls on a Saturday, Sunday, or a holiday, such deadline shall be extended to the
next following day that is not a Saturday, Sunday, or holiday. The Semiannual Report may be
submitted as a single document or as separate documents comprising a package, and may
include by reference other information as provided in Section 4 of this Disclosure Agreement.
(b) Not later than fifteen (15) calendar days prior to the date specified in subsection
(a) for providing the Annual Report and Semiannual Report to the Repository, the Landowner (i)
shall provide the Annual Report or the Semiannual Report, as applicable, to the Dissemination
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Agent or (ii) shall provide notification to the Dissemination Agent that the Landowner is
preparing, or causing to be prepared, the Annual Report or the Semiannual Report, as
applicable, and the date which the Annual Report or the Semiannual Report, as applicable, is
expected to be filed. If by such date, the Dissemination Agent has not received a copy of the
Annual Report or the Semiannual Report, as applicable, or notification as described in the
preceding sentence, the Dissemination Agent shall notify the Landowner of such failure to
receive the report.
(c) If the Dissemination Agent is unable to provide an Annual Report or Semiannual
Report to the Repository by the applicable June 15th or December 15th or to verify that an
Annual Report or Semiannual Report has been provided to the Repository by the Landowner by
the applicable June 15th or December 15th, the Dissemination Agent shall send a notice to the
Repository in the form required by the Repository.
(d) The Dissemination Agent shall:
(i) determine each year prior to the date for providing the Annual Report and
the Semiannual Report the name and address of the Repository;; and
(ii) promptly after receipt of the Annual Report or the Semiannual Report, as
applicable, file a report with the Landowner and the City certifying that the Annual Report
or the Semiannual Report, as applicable, has been provided pursuant to this Disclosure
Agreement, stating the date it was provided to the Repository.
(e) Notwithstanding any other provision of this Disclosure Agreement, any of the
required filings hereunder shall be made in accordance with the MSRB’s EMMA system.
SECTION 4. Content of Annual Report and Semiannual Report.
(a) The Landowner’s Annual Report and Semiannual Report shall contain or include
by reference the information which is updated through a date which shall not be more than 60
days prior to the date of the filing of the Annual Report or the Semiannual Report, as applicable,
relating to the following:
1. An update (if any) to the information relating to the Landowner and its
Affiliates under the captions in the Official Statement entitled “IMPROVEMENT AREA
NO. 1 – Improvement Area No. 1 Ownership,” “—The Development Plan – Huntington
Neighborhood,” “-- -- Wilshire Neighborhood,” “-- -- Fillmore Neighborhood,” “—
Financing Plan – Merchant Builders – Brookfield Merchant Builders Financing Plan.”
2. A description of the number of building permits issued during the
reporting period with respect to the property in Improvement Area No. 1 owned by the
Landowner and any Affiliate.
3. Any significant amendments to land use entitlements that are known to
the Landowner with respect to parcels owned by the Landowner or its Affiliates within
Improvement Area No. 1.
4. Any significant changes in the ownership structure of the Landowner or its
Affiliates.
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5. Any sale of property within Improvement Area No. 1 by the Landowner or
an Affiliate to an unrelated merchant builder.
6. An update of the status of any previously reported Listed Event described
in Section 5 hereof.
(b) Any and all of the items listed above may be included by specific reference to
other documents, including official statements of debt issues which have been submitted to the
Repository or the Securities and Exchange Commission. If the document included by reference
is a final official statement, it must be available from the MSRB. The Landowner shall clearly
identify each such other document so included by reference.
SECTION 5. Reporting of Significant Events.
(a) Pursuant to the provisions of this Section 5, the Landowner shall give, or cause
to be given, notice of the occurrence of any of the following events, if material under clauses (b)
and (c) as soon as practicable after the Landowner obtains knowledge of any of the following
events:
1. Failure to pay any real property taxes, special taxes or assessments
levied within Improvement Area No. 1 on a parcel owned by the Landowner or any
Affiliate;;
2. Material default by the Landowner or any Affiliate on any loan with
respect to the construction or permanent financing of improvements to Improvement
Area No. 1 to which the Landowner or any Affiliate has been provided a notice of default;;
3. Material default by the Landowner or any Affiliate on any loan secured by
property within Improvement Area No. 1 owned by the Landowner or any Affiliate to
which the Landowner or any Affiliate has been provided a notice of default;;
4. Payment default by the Landowner or any Affiliate on any loan of the
Landowner or any Affiliate (whether or not such loan is secured by property within
Improvement Area No. 1) which is beyond any applicable cure period in such loan and,
in the reasonable judgment of the Landowner, such payment default will adversely affect
the completion of the development of parcels owned by the Landowner or its Affiliates
within Improvement Area No. 1, or would materially adversely affect the financial
condition of the Landowner or its Affiliates or their respective ability to pay special taxes
levied within Improvement Area No. 1;;
5. The filing of any proceedings with respect to the Landowner or any
Affiliate that owns property within Improvement Area No. 1 in which the Landowner may
be adjudicated as bankrupt or discharged from any or all of its debts or obligations or
granted an extension of time to pay debts or a reorganization or readjustment of its
debts;;
6. The filing of any proceedings with respect to an Affiliate that does not own
property in Improvement Area No. 1 in which such Affiliate may be adjudicated as
bankrupt or discharged from any or all of its debts or obligations or granted an extension
of time to pay its debts or a reorganization or readjustment of its debts, if such
adjudication will adversely affect the completion of the development of parcels owned by
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the Landowner or its Affiliates that own property within Improvement Area No. 1, or
would materially adversely affect the financial condition of the Landowner or its Affiliates
that own property within Improvement Area No. 1 and their respective ability to pay
special taxes levied within Improvement Area No. 1;; and
7. The filing of any lawsuit against the Landowner or any of its Affiliates (for
which Landowner or Affiliate is in receipt of service of process) which, in the reasonable
judgment of the Landowner, will adversely affect the completion of the development of
parcels owned by the Landowner or its Affiliates within Improvement Area No. 1, or
litigation which if decided against the Landowner, or any such Affiliates, in the
reasonable judgment of the Landowner, would materially adversely affect the financial
condition of the Landowner or its Affiliates and their respective ability to pay special
taxes levied within Improvement Area No. 1.
(b) Whenever the Landowner obtains knowledge of the occurrence of a Listed
Event, the Landowner shall as soon as possible determine if such event would be material
under applicable federal securities laws. The Dissemination Agent shall have no responsibility
to determine the materiality of any of the Listed Events.
(c) If the Landowner determines that knowledge of the occurrence of a Listed Event
would be material under applicable federal securities laws, the Landowner shall promptly (i) file
a notice of such occurrence with the Dissemination Agent which shall then distribute such notice
to the Repository, with a copy to the City or (ii) file a notice of such occurrence with the
Repository, with a copy to the Dissemination Agent and the City.
SECTION 6. Termination of Reporting Obligation. The Landowner’s obligations under
this Disclosure Agreement shall terminate upon the earlier to occur of the following events:
(a) the legal defeasance, prior redemption or payment in full of all of the Bonds, or
(b) at any time that the Landowner and its Affiliates own property in Improvement
Area No. 1 that is responsible for less than 20% of the special tax levy in Improvement Area No.
1.
If such termination occurs prior to the final maturity of the Bonds, the Landowner shall
give notice of such termination in the same manner as for a Listed Event.
SECTION 7. Dissemination Agent. The Landowner may from time to time, appoint or
engage a Dissemination Agent to assist it in carrying out its obligations under this Disclosure
Agreement, and may discharge any such Dissemination Agent, with or without appointing a
successor Dissemination Agent. If the Dissemination Agent is not the Landowner, the
Dissemination Agent shall not be responsible in any manner for the form or content of any
notice or report prepared by the Landowner pursuant to this Disclosure Agreement. The
Dissemination Agent may resign by providing (i) thirty days written notice to the Landowner and
the Dissemination Agent and (ii) upon appointment of a new Dissemination Agent hereunder.
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SECTION 8. Amendment;; Waiver. Notwithstanding any other provision of this
Disclosure Agreement, the Landowner may amend this Disclosure Agreement, and any
provision of this Disclosure Agreement may be waived, provided that the following conditions
are satisfied:
(a) If the amendment or waiver relates to the provisions of Sections 3(a), 4 or 5, it
may only be made in connection with a change in circumstances that arises from a change in
legal requirements or a change in law;;
(b) The amendment or waiver either (i) is approved by the owners of the Bonds in
the same manner as provided in the Fiscal Agent Agreement with the consent of owners of the
Bonds, or (ii) does not, in the opinion of nationally recognized bond counsel addressed to the
City and the Dissemination Agent, materially impair the interests of the owners or Beneficial
Owners of the Bonds;; and
(c) The Landowner, or the Dissemination Agent, shall have delivered copies of the
amendment and any opinions delivered under (b) above to the City and the Fiscal Agent.
In the event of any amendment or waiver of a provision of this Disclosure Agreement,
the Landowner shall describe such amendment in the next Annual Report or Semiannual
Report, and shall include, as applicable, a narrative explanation of the reason for the
amendment or waiver.
SECTION 9. Additional Information. Nothing in this Disclosure Agreement shall be
deemed to prevent the Landowner from disseminating any other information, using the means
of dissemination set forth in this Disclosure Agreement or any other means of communication,
or including any other information in any Annual Report, Semiannual Report, or notice of
occurrence of a Listed Event, in addition to that which is required by this Disclosure Agreement.
If the Landowner chooses to include any information in any Annual Report, Semiannual Report,
or notice of occurrence of a Listed Event in addition to that which is specifically required by this
Disclosure Agreement, the Landowner shall have no obligation under this Disclosure Agreement
to update such information or include it in any future Annual Report, Semiannual Report, or
notice of occurrence of a Listed Event.
The Landowner acknowledges and understands that other state and federal laws,
including but not limited to the Securities Act of 1933 and Rule 10b-5 promulgated under the
Securities Exchange Act of 1934, may apply to the Landowner, and that under some
circumstances compliance with this Disclosure Agreement, without additional disclosures or
other action, may not fully discharge all duties and obligations of the Landowner under such
laws.
SECTION 10. Default. In the event of a failure of the Landowner or the Dissemination
Agent to comply with any provision of this Disclosure Agreement, the Underwriter or any owner
or Beneficial Owner of the Bonds may, take such actions as may be necessary and appropriate,
including seeking mandate or specific performance by court order, to cause the Landowner or
the Dissemination Agent to comply with its obligations under this Disclosure Agreement. A
default under this Disclosure Agreement shall not be deemed an Event of Default under the
Fiscal Agent Agreement (as such term is defined therein), and the sole remedy under this
Disclosure Agreement in the event of any failure of the Landowner to comply with this
Disclosure Agreement shall be an action to compel performance. Neither the Landowner nor
the Dissemination Agent shall have any liability to the Beneficial Owners of the Bonds or any
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other party for monetary damages or financial liability of any kind whatsoever arising from or
relating to this Disclosure Agreement.
SECTION 11. Duties, Immunities and Liabilities of Dissemination Agent. The
Dissemination Agent shall not be deemed to be acting in any fiduciary capacity for the
Landowner, the Underwriter, owners of the Bonds or Beneficial Owners or any other party. The
Dissemination Agent may rely and shall be protected in acting or refraining from acting upon a
direction from the Landowner or an opinion of nationally recognized bond counsel. No person
shall have any right to commence any action against the Dissemination Agent seeking any
remedy other than to compel specific performance of this Disclosure Agreement. The
Dissemination Agent may conclusively rely upon the Annual Report or Semiannual Report
provided to it by the Landowner as constituting the Annual Report or Semiannual Report
required of the Landowner in accordance with this Disclosure Agreement and shall have no duty
or obligation to review such Annual Report or Semiannual Report. The Dissemination Agent
shall have no duty to prepare the Annual Report or Semiannual Report nor shall the
Dissemination Agent be responsible for filing any Annual Report or Semiannual Report not
provided to it by the Landowner in a timely manner in a form suitable for filing with the
Repositories. Any company succeeding to all or substantially all of the Dissemination Agent’s
corporate trust business shall be the successor to the Dissemination Agent hereunder without
the execution or filing of any paper or any further act.
SECTION 12. Landowner as Independent Contractor. In performing under this
Disclosure Agreement, it is understood that the Landowner is an independent contractor and not
an agent of the City.
SECTION 13. Notices. Notices should be sent in writing to the following addresses.
The following information may be conclusively relied upon until changed in writing.
Landowner: Brookfield Bay Area Holdings LLC
500 La Gonda Way, Suite 100
Danville, CA 94526
Phone: (___) __________
Dissemination Agent:
Underwriter: Prager & Co., LLC
One Maritime Plaza, Suite 1000
San Francisco, CA 94111
Phone: (____) _______________
SECTION 14. Beneficiaries. This Disclosure Agreement shall inure solely to the benefit
of the Landowner, the City, the Dissemination Agent, the Underwriter and owners of the Bonds
and Beneficial Owners from time to time of the Bonds, and shall create no rights in any other
person or entity.
SECTION 15. California Law. The validity, interpretation and performance of this
Disclosure Agreement shall be governed by the laws of the State of California.
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SECTION 16. Counterparts. This Disclosure Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall constitute but one and the
same instrument.
BROOKFIELD BAY AREA HOLDINGS, LLC,
A Delaware limited liability company
By:
Name: __________________________________
Title: ___________________________________
By:
Name: __________________________________
Title: ___________________________________
_____________, as Dissemination Agent
By:
Authorized Officer
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APPENDIX G-3
CONTINUING DISCLOSURE AGREEMENT
(Developer - CalAtlantic Group, Inc.)
This Developer Continuing Disclosure Agreement (the “Disclosure Agreement”), dated
July __, 2017, is executed and delivered by CalAtlantic Group, Inc., a Delaware corporation (the
“Landowner”), and __________, as dissemination agent (the “Dissemination Agent”), in
connection with the issuance by the City of Dublin (the “City”) with respect to the $__________
City of Dublin Community Facilities District No. 2015-1 (Dublin Crossing), Improvement Area
No. 1, Special Tax Bonds, Series 2017 (the “Bonds”). The Bonds are being issued under a
Fiscal Agent Agreement, dated as of __________ 1, 2017 (the “Fiscal Agent Agreement”),
between the City and U.S. Bank National Association, as Fiscal Agent (the “Fiscal Agent”).
The Landowner covenants and agrees as follows:
SECTION 1. Purpose of the Disclosure Agreement. This Disclosure Agreement is
being executed and delivered by the Landowner to assist the Underwriter in the marketing of the
Bonds.
SECTION 2. Definitions. Unless otherwise defined in this Section, the following
capitalized terms shall have the following meanings:
“Affiliate” shall mean, with respect to the Landowner, (a) each Person that, directly or
indirectly, owns or controls, whether beneficially or as an agent, guardian or other fiduciary, fifty
percent (50%) or more of the outstanding voting securities of the Landowner, or (b) each Person
that controls, is controlled by or is under common control with the Landowner;; provided,
however, that in no case shall any of the following be deemed to be an Affiliate of the
Landowner for purposes of this Disclosure Agreement: (i) the City;; (ii) Dublin Crossing, LLC;; (iii)
Brookfield Bay Area Holdings LLC;; (iv) Brookfield Wilshire LLC;; or (v) Brookfield Fillmore LLC.
For the purpose of this definition, “control” of a Person shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of its management or policies, unless
such waiver is solely the result of an official position with such Person.
“Annual Report” shall mean any Annual Report to be provided by the Landowner on or
prior to June 15 of each year pursuant to, and as described in, Sections 3 and 4 of this
Disclosure Agreement.
“Beneficial Owner” shall mean any person which has or shares the power, directly or
indirectly, to make investment decisions concerning ownership of the Bonds (including persons
holding Bonds through nominees, depositories or other intermediaries).
“Dissemination Agent” shall mean __________, acting in its capacity as Dissemination
Agent hereunder, or any successor Dissemination Agent designated in writing by the
Landowner and which has filed with the Landowner and the City a written acceptance of such
designation.
“District” shall mean City of Dublin Community Facilities District No. 2015-1 (Dublin
Crossing).
“EMMA” shall mean the Electronic Municipal Market Access system of the MSRB.
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“Improvement Area No. 1” means Improvement Area No. 1 of the District.
“Listed Event” shall mean any of the events listed in Section 5(a) of this Disclosure
Agreement.
“MSRB” shall mean the Municipal Securities Rulemaking Board.
“Official Statement” shall mean the final Official Statement, dated July __, 2017,
relating to the Bonds.
“Person” shall mean any individual, corporation, partnership, association, limited liability
company, joint stock company, trust, unincorporated organization, or government or political
subdivision thereof.
“Repository” shall mean the MSRB or any other entity designated or authorized by the
Securities and Exchange Commission to receive continuing disclosure reports. Unless
otherwise designated by the MSRB or the Securities and Exchange Commission, filings with the
MSRB are to be made through the EMMA website of the MSRB, currently located at
http://emma.msrb.org.
“Semiannual Report” shall mean any report to be provided by the Landowner on or
prior to December 15 of each year pursuant to, and as described in, Sections 3 and 4 of this
Disclosure Agreement.
“Underwriter” shall mean the original underwriter of the Bonds, Prager & Co., LLC.
SECTION 3. Provision of Annual Reports and Semiannual Reports.
(a) Until such time as the Landowner’s reporting requirements terminate pursuant to
Section 6 below, the Landowner shall, or upon receipt of the Annual Report from the Landowner
the Dissemination Agent shall, not later than June 15 of each year, commencing June 15, 2018,
provide to the Repository an Annual Report which is consistent with the requirements of Section
4 of this Disclosure Agreement. If, in any year, June 15 falls on a Saturday, Sunday, or a
holiday, such deadline shall be extended to the next following day that is not a Saturday,
Sunday, or holiday. The Annual Report may be submitted as a single document or as separate
documents comprising a package, and may include by reference other information as provided
in Section 4 of this Disclosure Agreement.
In addition, until such time as the Landowner’s reporting requirements terminate
pursuant to Section 6 below, the Landowner shall, or upon receipt of the Semiannual Report
from the Landowner the Dissemination Agent shall, not later than December 15 of each year,
commencing December 15, 2017, provide to the Repository a Semiannual Report which is
consistent with the requirements of Section 4 of this Disclosure Agreement. If, in any year,
December 15 falls on a Saturday, Sunday, or a holiday, such deadline shall be extended to the
next following day that is not a Saturday, Sunday, or holiday. The Semiannual Report may be
submitted as a single document or as separate documents comprising a package, and may
include by reference other information as provided in Section 4 of this Disclosure Agreement.
(b) Not later than fifteen (15) calendar days prior to the date specified in subsection
(a) for providing the Annual Report and Semiannual Report to the Repository, the Landowner (i)
shall provide the Annual Report or the Semiannual Report, as applicable, to the Dissemination
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Agent or (ii) shall provide notification to the Dissemination Agent that the Landowner is
preparing, or causing to be prepared, the Annual Report or the Semiannual Report, as
applicable, and the date which the Annual Report or the Semiannual Report, as applicable, is
expected to be filed. If by such date, the Dissemination Agent has not received a copy of the
Annual Report or the Semiannual Report, as applicable, or notification as described in the
preceding sentence, the Dissemination Agent shall notify the Landowner of such failure to
receive the report.
(c) If the Dissemination Agent is unable to provide an Annual Report or Semiannual
Report to the Repository by the applicable June 15th or December 15th or to verify that an
Annual Report or Semiannual Report has been provided to the Repository by the Landowner by
the applicable June 15th or December 15th, the Dissemination Agent shall send a notice to the
Repository in the form required by the Repository.
(d) The Dissemination Agent shall:
(i) determine each year prior to the date for providing the Annual Report and
the Semiannual Report the name and address of the Repository;; and
(ii) promptly after receipt of the Annual Report or the Semiannual Report, as
applicable, file a report with the Landowner and the City certifying that the Annual Report
or the Semiannual Report, as applicable, has been provided pursuant to this Disclosure
Agreement, stating the date it was provided to the Repository.
(e) Notwithstanding any other provision of this Disclosure Agreement, any of the
required filings hereunder shall be made in accordance with the MSRB’s EMMA system.
SECTION 4. Content of Annual Report and Semiannual Report.
(a) The Landowner’s Annual Report and Semiannual Report shall contain or include
by reference the information which is updated through a date which shall not be more than 60
days prior to the date of the filing of the Annual Report or the Semiannual Report, as applicable,
relating to the following:
1. An update (if any) to the information relating to the Landowner and its
Affiliates under the captions in the Official Statement entitled “IMPROVEMENT AREA
NO. 1 –Improvement Area No. 1 Ownership,” “—The Development Plan – Madison
Neighborhood,” “-- -- Union Neighborhood,” “-- -- Sunset Neighborhood,” and “—
Financing Plan – Merchant Builders – CalAtlantic’s Financing Plan.”
2. A description of the number of building permits issued during the
reporting period with respect to the property in Improvement Area No. 1 owned by the
Landowner and any Affiliate.
3. Any significant amendments to land use entitlements that are known to
the Landowner with respect to parcels owned by the Landowner or its Affiliates within
Improvement Area No. 1.
4. Any significant changes in the ownership structure of the Landowner or its
Affiliates.
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5. Any sale of property within Improvement Area No. 1 by the Landowner or
an Affiliate to an unrelated merchant builder.
6. An update of the status of any previously reported Listed Event described
in Section 5 hereof.
(b) Any and all of the items listed above may be included by specific reference to
other documents, including official statements of debt issues which have been submitted to the
Repository or the Securities and Exchange Commission. If the document included by reference
is a final official statement, it must be available from the MSRB. The Landowner shall clearly
identify each such other document so included by reference.
SECTION 5. Reporting of Significant Events.
(a) Pursuant to the provisions of this Section 5, the Landowner shall give, or cause
to be given, notice of the occurrence of any of the following events, if material under clauses (b)
and (c) as soon as practicable after the Landowner obtains knowledge of any of the following
events:
1. Failure to pay any real property taxes, special taxes or assessments
levied within Improvement Area No. 1 on a parcel owned by the Landowner or any
Affiliate;;
2. Material default by the Landowner or any Affiliate on any loan with
respect to the construction or permanent financing of improvements to Improvement
Area No. 1 to which the Landowner or any Affiliate has been provided a notice of default;;
3. Material default by the Landowner or any Affiliate on any loan secured by
property within Improvement Area No. 1 owned by the Landowner or any Affiliate to
which the Landowner or any Affiliate has been provided a notice of default;;
4. Payment default by the Landowner or any Affiliate on any loan of the
Landowner or any Affiliate (whether or not such loan is secured by property within
Improvement Area No. 1) which is beyond any applicable cure period in such loan and,
in the reasonable judgment of the Landowner, such payment default will adversely affect
the completion of the development of parcels owned by the Landowner or its Affiliates
within Improvement Area No. 1, or would materially adversely affect the financial
condition of the Landowner or its Affiliates or their respective ability to pay special taxes
levied within Improvement Area No. 1;;
5. The filing of any proceedings with respect to the Landowner or any
Affiliate that owns property within Improvement Area No. 1 in which the Landowner may
be adjudicated as bankrupt or discharged from any or all of its debts or obligations or
granted an extension of time to pay debts or a reorganization or readjustment of its
debts;;
6. The filing of any proceedings with respect to an Affiliate that does not own
property in Improvement Area No. 1 in which such Affiliate may be adjudicated as
bankrupt or discharged from any or all of its debts or obligations or granted an extension
of time to pay its debts or a reorganization or readjustment of its debts, if such
adjudication will adversely affect the completion of the development of parcels owned by
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the Landowner or its Affiliates that own property within Improvement Area No. 1, or
would materially adversely affect the financial condition of the Landowner or its Affiliates
that own property within Improvement Area No. 1 and their respective ability to pay
special taxes levied within Improvement Area No. 1;; and
7. The filing of any lawsuit against the Landowner or any of its Affiliates (for
which Landowner or Affiliate is in receipt of service of process) which, in the reasonable
judgment of the Landowner, will adversely affect the completion of the development of
parcels owned by the Landowner or its Affiliates within Improvement Area No. 1, or
litigation which if decided against the Landowner, or any such Affiliates, in the
reasonable judgment of the Landowner, would materially adversely affect the financial
condition of the Landowner or its Affiliates and their respective ability to pay special
taxes levied within Improvement Area No. 1.
(b) Whenever the Landowner obtains knowledge of the occurrence of a Listed
Event, the Landowner shall as soon as possible determine if such event would be material
under applicable federal securities laws. The Dissemination Agent shall have no responsibility
to determine the materiality of any of the Listed Events.
(c) If the Landowner determines that knowledge of the occurrence of a Listed Event
would be material under applicable federal securities laws, the Landowner shall promptly (i) file
a notice of such occurrence with the Dissemination Agent which shall then distribute such notice
to the Repository, with a copy to the City or (ii) file a notice of such occurrence with the
Repository, with a copy to the Dissemination Agent and the City.
SECTION 6. Termination of Reporting Obligation. The Landowner’s obligations under
this Disclosure Agreement shall terminate upon the earlier to occur of the following events:
(a) the legal defeasance, prior redemption or payment in full of all of the Bonds, or
(b) at any time that the Landowner and its Affiliates own property in Improvement
Area No. 1 that is responsible for less than 20% of the special tax levy in Improvement Area No.
1.
If such termination occurs prior to the final maturity of the Bonds, the Landowner shall
give notice of such termination in the same manner as for a Listed Event.
SECTION 7. Dissemination Agent. The Landowner may from time to time, appoint or
engage a Dissemination Agent to assist it in carrying out its obligations under this Disclosure
Agreement, and may discharge any such Dissemination Agent, with or without appointing a
successor Dissemination Agent. If the Dissemination Agent is not the Landowner, the
Dissemination Agent shall not be responsible in any manner for the form or content of any
notice or report prepared by the Landowner pursuant to this Disclosure Agreement. The
Dissemination Agent may resign by providing (i) thirty days written notice to the Landowner and
the Dissemination Agent and (ii) upon appointment of a new Dissemination Agent hereunder.
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SECTION 8. Amendment;; Waiver. Notwithstanding any other provision of this
Disclosure Agreement, the Landowner may amend this Disclosure Agreement, and any
provision of this Disclosure Agreement may be waived, provided that the following conditions
are satisfied:
(a) If the amendment or waiver relates to the provisions of Sections 3(a), 4 or 5, it
may only be made in connection with a change in circumstances that arises from a change in
legal requirements or a change in law;;
(b) The amendment or waiver either (i) is approved by the owners of the Bonds in
the same manner as provided in the Fiscal Agent Agreement with the consent of owners of the
Bonds, or (ii) does not, in the opinion of nationally recognized bond counsel addressed to the
City and the Dissemination Agent, materially impair the interests of the owners or Beneficial
Owners of the Bonds;; and
(c) The Landowner, or the Dissemination Agent, shall have delivered copies of the
amendment and any opinions delivered under (b) above to the City and the Fiscal Agent.
In the event of any amendment or waiver of a provision of this Disclosure Agreement,
the Landowner shall describe such amendment in the next Annual Report or Semiannual
Report, and shall include, as applicable, a narrative explanation of the reason for the
amendment or waiver.
SECTION 9. Additional Information. Nothing in this Disclosure Agreement shall be
deemed to prevent the Landowner from disseminating any other information, using the means
of dissemination set forth in this Disclosure Agreement or any other means of communication,
or including any other information in any Annual Report, Semiannual Report, or notice of
occurrence of a Listed Event, in addition to that which is required by this Disclosure Agreement.
If the Landowner chooses to include any information in any Annual Report, Semiannual Report,
or notice of occurrence of a Listed Event in addition to that which is specifically required by this
Disclosure Agreement, the Landowner shall have no obligation under this Disclosure Agreement
to update such information or include it in any future Annual Report, Semiannual Report, or
notice of occurrence of a Listed Event.
The Landowner acknowledges and understands that other state and federal laws,
including but not limited to the Securities Act of 1933 and Rule 10b-5 promulgated under the
Securities Exchange Act of 1934, may apply to the Landowner, and that under some
circumstances compliance with this Disclosure Agreement, without additional disclosures or
other action, may not fully discharge all duties and obligations of the Landowner under such
laws.
SECTION 10. Default. In the event of a failure of the Landowner or the Dissemination
Agent to comply with any provision of this Disclosure Agreement, the Underwriter or any owner
or Beneficial Owner of the Bonds may, take such actions as may be necessary and appropriate,
including seeking mandate or specific performance by court order, to cause the Landowner or
the Dissemination Agent to comply with its obligations under this Disclosure Agreement. A
default under this Disclosure Agreement shall not be deemed an Event of Default under the
Fiscal Agent Agreement (as such term is defined therein), and the sole remedy under this
Disclosure Agreement in the event of any failure of the Landowner to comply with this
Disclosure Agreement shall be an action to compel performance. Neither the Landowner nor
the Dissemination Agent shall have any liability to the Beneficial Owners of the Bonds or any
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other party for monetary damages or financial liability of any kind whatsoever arising from or
relating to this Disclosure Agreement.
SECTION 11. Duties, Immunities and Liabilities of Dissemination Agent. The
Dissemination Agent shall not be deemed to be acting in any fiduciary capacity for the
Landowner, the Underwriter, owners of the Bonds or Beneficial Owners or any other party. The
Dissemination Agent may rely and shall be protected in acting or refraining from acting upon a
direction from the Landowner or an opinion of nationally recognized bond counsel. No person
shall have any right to commence any action against the Dissemination Agent seeking any
remedy other than to compel specific performance of this Disclosure Agreement. The
Dissemination Agent may conclusively rely upon the Annual Report or Semiannual Report
provided to it by the Landowner as constituting the Annual Report or Semiannual Report
required of the Landowner in accordance with this Disclosure Agreement and shall have no duty
or obligation to review such Annual Report or Semiannual Report. The Dissemination Agent
shall have no duty to prepare the Annual Report or Semiannual Report nor shall the
Dissemination Agent be responsible for filing any Annual Report or Semiannual Report not
provided to it by the Landowner in a timely manner in a form suitable for filing with the
Repositories. Any company succeeding to all or substantially all of the Dissemination Agent’s
corporate trust business shall be the successor to the Dissemination Agent hereunder without
the execution or filing of any paper or any further act.
SECTION 12. Landowner as Independent Contractor. In performing under this
Disclosure Agreement, it is understood that the Landowner is an independent contractor and not
an agent of the City.
SECTION 13. Notices. Notices should be sent in writing to the following addresses.
The following information may be conclusively relied upon until changed in writing.
Landowner: CalAtlantic Homes
4750 Willow Road, Suite 150
Pleasanton, CA 94588
Attention: [Vice President Forward Planning]
Phone: (___) ________________
with a copy to:
CalAtlantic Homes
15360 Barranca Parkway
Irvine, California 92618
Attention: Vice President - Treasury
Phone: (949) 789-1653
Dissemination Agent:
Underwriter: Prager & Co., LLC
One Maritime Plaza, Suite 1000
San Francisco, CA 94111
Phone: (___) ____________
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SECTION 14. Beneficiaries. This Disclosure Agreement shall inure solely to the benefit
of the Landowner, the City, the Dissemination Agent, the Underwriter and owners of the Bonds
and Beneficial Owners from time to time of the Bonds, and shall create no rights in any other
person or entity.
SECTION 15. California Law. The validity, interpretation and performance of this
Disclosure Agreement shall be governed by the laws of the State of California.
SECTION 16. Counterparts. This Disclosure Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall constitute but one and the
same instrument.
CALATLANTIC GROUP, INC.,
A Delaware corporation
By:
Name: __________________________________
Title: ___________________________________
_____________, as Dissemination Agent
By:
Authorized Officer
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APPENDIX H
BOOK ENTRY SYSTEM
The following description of the Depository Trust Company ("DTC"), the procedures and
record keeping with respect to beneficial ownership interests in the Bonds, payment of principal,
interest and other payments on the Bonds (herein, the "Securities") to DTC Participants or
Beneficial Owners, confirmation and transfer of beneficial ownership interest in the Securities
and other related transactions by and between DTC, the DTC Participants and the Beneficial
Owners is based solely on information provided by DTC. Accordingly, no representations can
be made concerning these matters and neither the DTC Participants nor the Beneficial Owners
should rely on the foregoing information with respect to such matters, but should instead confirm
the same with DTC or the DTC Participants, as the case may be.
Neither the issuer of the Securities (the "Issuer") nor the trustee, fiscal agent or paying
agent appointed with respect to the Securities (the "Agent") takes any responsibility for the
information contained in this Appendix.
No assurances can be given that DTC, DTC Participants or Indirect Participants will
distribute to the Beneficial Owners (a) payments of interest, principal or premium, if any, with
respect to the Securities, (b) certificates representing ownership interest in or other confirmation
or ownership interest in the Securities, or (c) redemption or other notices sent to DTC or Cede &
Co., its nominee, as the registered owner of the Securities, or that they will so do on a timely
basis, or that DTC, DTC Participants or DTC Indirect Participants will act in the manner
described in this Appendix. The current "Rules" applicable to DTC are on file with the Securities
and Exchange Commission and the current "Procedures" of DTC to be followed in dealing with
DTC Participants are on file with DTC.
1. The Depository Trust Company ("DTC") will act as securities depository for the
securities (the "Securities"). The Securities will be issued as fully-registered securities
registered in the name of Cede & Co. (DTC’s partnership nominee) or such other name as may
be requested by an authorized representative of DTC. One fully-registered Security certificate
will be issued for each issue of the Securities, each in the aggregate principal amount of such
issue, and will be deposited with DTC. If, however, the aggregate principal amount of any issue
exceeds $500 million, one certificate will be issued with respect to each $500 million of principal
amount, and an additional certificate will be issued with respect to any remaining principal
amount of such issue.
2. DTC, the world’s largest securities depository, is a limited-purpose trust company
organized under the New York Banking Law, a "banking organization" within the meaning of the
New York Banking Law, a member of the Federal Reserve System, a "clearing corporation"
within the meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange Act of 1934.
DTC holds and provides asset servicing for over 3.5 million issues of U.S. and non-U.S. equity
issues, corporate and municipal debt issues, and money market instruments (from over 100
countries) that DTC’s participants ("Direct Participants") deposit with DTC. DTC also
facilitates the post-trade settlement among Direct Participants of sales and other securities
transactions in deposited securities, through electronic computerized book-entry transfers and
pledges between Direct Participants’ accounts. This eliminates the need for physical movement
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of securities certificates. Direct Participants include both U.S. and non-U.S. securities brokers
and dealers, banks, trust companies, clearing corporations, and certain other organizations.
DTC is a wholly-owned subsidiary of The Depository Trust & Clearing Corporation ("DTCC").
DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed
Income Clearing Corporation, all of which are registered clearing agencies. DTCC is owned by
the users of its regulated subsidiaries. Access to the DTC system is also available to others
such as both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, and
clearing corporations that clear through or maintain a custodial relationship with a Direct
Participant, either directly or indirectly ("Indirect Participants"). DTC has a Standard & Poor’s
rating of AA+. The DTC Rules applicable to its Participants are on file with the Securities and
Exchange Commission. More information about DTC can be found at www.dtcc.com. The
information contained on this Internet site is not incorporated herein by reference.
3. Purchases of Securities under the DTC system must be made by or through Direct
Participants, which will receive a credit for the Securities on DTC’s records. The ownership
interest of each actual purchaser of each Security ("Beneficial Owner") is in turn to be recorded
on the Direct and Indirect Participants’ records. Beneficial Owners will not receive written
confirmation from DTC of their purchase. Beneficial Owners are, however, expected to receive
written confirmations providing details of the transaction, as well as periodic statements of their
holdings, from the Direct or Indirect Participant through which the Beneficial Owner entered into
the transaction. Transfers of ownership interests in the Securities are to be accomplished by
entries made on the books of Direct and Indirect Participants acting on behalf of Beneficial
Owners. Beneficial Owners will not receive certificates representing their ownership interests in
Securities, except in the event that use of the book-entry system for the Securities is
discontinued.
4. To facilitate subsequent transfers, all Securities deposited by Direct Participants with
DTC are registered in the name of DTC’s partnership nominee, Cede & Co., or such other name
as may be requested by an authorized representative of DTC. The deposit of Securities with
DTC and their registration in the name of Cede & Co. or such other DTC nominee do not effect
any change in beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of
the Securities;; DTC’s records reflect only the identity of the Direct Participants to whose
accounts such Securities are credited, which may or may not be the Beneficial Owners. The
Direct and Indirect Participants will remain responsible for keeping account of their holdings on
behalf of their customers.
5. Conveyance of notices and other communications by DTC to Direct Participants, by
Direct Participants to Indirect Participants, and by Direct Participants and Indirect Participants to
Beneficial Owners will be governed by arrangements among them, subject to any statutory or
regulatory requirements as may be in effect from time to time. Beneficial Owners of Securities
may wish to take certain steps to augment the transmission to them of notices of significant
events with respect to the Securities, such as redemptions, tenders, defaults, and proposed
amendments to the Security documents. For example, Beneficial Owners of Securities may
wish to ascertain that the nominee holding the Securities for their benefit has agreed to obtain
and transmit notices to Beneficial Owners. In the alternative, Beneficial Owners may wish to
provide their names and addresses to the registrar and request that copies of notices be
provided directly to them.
6. Redemption notices shall be sent to DTC. If less than all of the Securities within an
issue are being redeemed, DTC’s practice is to determine by lot the amount of the interest of
each Direct Participant in such issue to be redeemed.
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7. Neither DTC nor Cede & Co. (nor any other DTC nominee) will consent or vote with
respect to Securities unless authorized by a Direct Participant in accordance with DTC’s MMI
Procedures. Under its usual procedures, DTC mails an Omnibus Proxy to Issuer as soon as
possible after the record date. The Omnibus Proxy assigns Cede & Co.’s consenting or voting
rights to those Direct Participants to whose accounts Securities are credited on the record date
(identified in a listing attached to the Omnibus Proxy).
8. Redemption proceeds, distributions, and dividend payments on the Securities will be
made to Cede & Co., or such other nominee as may be requested by an authorized
representative of DTC. DTC’s practice is to credit Direct Participants’ accounts upon DTC’s
receipt of funds and corresponding detail information from Issuer or Agent, on payable date in
accordance with their respective holdings shown on DTC’s records. Payments by Participants
to Beneficial Owners will be governed by standing instructions and customary practices, as is
the case with securities held for the accounts of customers in bearer form or registered in "street
name," and will be the responsibility of such Participant and not of DTC, Agent, or Issuer,
subject to any statutory or regulatory requirements as may be in effect from time to time.
Payment of redemption proceeds, distributions, and dividend payments to Cede & Co. (or such
other nominee as may be requested by an authorized representative of DTC) is the
responsibility of Issuer or Agent, disbursement of such payments to Direct Participants will be
the responsibility of DTC, and disbursement of such payments to the Beneficial Owners will be
the responsibility of Direct and Indirect Participants.
9. DTC may discontinue providing its services as depository with respect to the
Securities at any time by giving reasonable notice to Issuer or Agent. Under such
circumstances, in the event that a successor depository is not obtained, Security certificates are
required to be printed and delivered.
10. Issuer may decide to discontinue use of the system of book-entry-only transfers
through DTC (or a successor securities depository). In that event, Security certificates will be
printed and delivered to DTC.
11. The information in this section concerning DTC and DTC’s book-entry system has
been obtained from sources that Issuer believes to be reliable, but Issuer takes no responsibility
for the accuracy thereof.
RESOLUTION NO. __-17
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
***********
AUTHORIZING EXECUTION OF AN ACQUISITION AGREEMENT
BETWEEN THE CITY OF DUBLIN AND DUBLIN CROSSING, LLC
WHEREAS, this City Council (this “City Council”) of the City of Dublin (the “City”)
has conducted proceedings to establish Community Facilities District No. 2015-1 (Dublin
Crossing), City of Dublin, County of Alameda, State of California” (“CFD No. 2015-1”), for the
purpose of providing financing for certain authorized public capital improvements and
reimbursement of certain capital facility impact fees (together, the improvements and the impact
fees are referred to herein as the “Authorized CFD Public Improvements”) being constructed and
installed by (in the case of the capital improvements) or paid by (in the case of the fees) Dublin
Crossing, LLC (the “Developer”), pertaining to a development project initially known as “Dublin
Crossing” and now renamed “Boulevard”; and
WHEREAS, in anticipation of authorizing the issuance and sale of the first series of
special tax bonds of CFD No. 2015-1 (the “Bonds”) to provide the intended financing, a form of
Acquisition Agreement, between the City and the Developer (the “Acquisition and Disclosure
Agreement”) has been prepared, filed with the City Clerk and submitted to the members of this
City Council for consideration at this meeting; and
WHEREAS, the agreement sets forth the list of Authorized CFD Public Improvements
and provides a requisition procedure by which the Developer may request reimbursement from
Bond proceeds and/or CFD special tax proceeds for the cost of authorized public improvements
which have been completed and reimbursement from the same sources for authorized capital
facilities impact fees which have been paid, subject to review and approval of the requisition by
the Director of Public Works of the City of the designee of the Director of Public Works prior to
any disbursement of CFD monies; and
WHEREAS, this City Council wishes by this resolution to approve and authorize
execution of the Acquisition Agreement in the form considered at this meeting.
NOW, THEREFORE, BE IT RESOLVED THAT the City Council of the City of
Dublin hereby finds, determines and resolves as follows:
1. The Acquisition Agreement (attached hereto as Exhibit A) between the City of
Dublin and Dublin Crossing, LLC, is hereby determined to be beneficial to future residents
within the CFD and is therefore approved.
2. The City Manager is hereby authorized to make non-substantive changes
thereto, as approved by the City Attorney, and the City Manager is hereby authorized and
directed to execute said agreement on behalf of the City of Dublin.
* * * * *
PASSED, APPROVED AND ADOPTED this 18th day of July, 2017, by the following vote:
AYES: Council Members __________________________________________
NOES: Council Members __________________________________________
ABSENT: Council Members __________________________________________
ABSTAIN Council Members __________________________________________
_______________________________________
Mayor
ATTEST:
______________________________
City Clerk
Exhibit A
2678014.5
ACQUISITION AGREEMENT
Relating to:
City of Dublin
Community Facilities District No. 2015-1
(Dublin Crossing)
THIS ACQUISITION AGREEMENT (this "Agreement"), dated as of July 18, 2017, is by
and between the City of Dublin, a municipal corporation and a political subdivision of the State
of California (the “City”), and Dublin Crossing LLC, a Delaware limited liability company (the
“Developer”).
RECITALS
A. Capitalized terms not otherwise defined in this Agreement shall have the meanings
given to them under the heading “Definitions” herein.
B. The City Council of the City (the “City Council”) has established the City of Dublin
Community Facilities District No. 2015-1 (Dublin Crossing) (the “CFD”) under the Mello-Roos
Community Facilities Act of 1982 for the financing, among other things, of certain authorized
public facilities (the “Authorized Facilities”) and certain authorized capital facility fees (the
“Authorized Fees”) generally described in the Resolution of Formation and described in more
detail in Exhibit A, attached hereto and by this reference incorporated herein.
C. The City and Dublin Crossing Venture LLC, a Delaware limited liability company (the
“Developer’s Predecessor”), entered into that certain Development Agreement, dated
November 19, 2013 (the “Original Development Agreement”), pertaining to implementation of a
development project (the “Project”) on the land described in Exhibit A to the Original
Development Agreement (the “Property”), a portion of which land is presently within the
boundary of the CFD and the balance of which land is designated as “Future Annexation Area”
of the CFD, as shown on the Boundary Map.
D. The Original Development Agreement was amended by the First Amendment,
thereby creating the “Original Development Agreement, as Amended.”
E. The Developer’s Predecessor and the Developer entered into an Assignment and
Assumption of Development Agreement (the “DA Assignment”), pursuant to which the
Developer’s Predecessor assigned and the Developer assumed all of the rights, duties and
obligations of the Developer’s Predecessor under the Original Development Agreement, as
Amended, with the express written approval of the City Manager of the City (the “City Manager”)
as set forth on page 4 of the DA Assignment.
F. The Original Development Agreement, as Amended, was further amended by the
Second Amendment. All references hereafter in this Agreement to the “Development
Agreement” shall be deemed to refer to the Original Development Agreement, as amended by
the First Amendment, the Second Amendment, the Third Amendment, and any future
amendments thereto.
2
2678014.4
G. As recited in Exhibit G of the Development Agreement (“Exhibit G”), the Property is
being acquired in phases from the United States of America, represented by The Departm ent of
the Army (the “Army”), pursuant to an Exchange Agreement, dated March 4, 2011, between the
Developer’s Predecessor and the Army (the “Exchange Agreement”), subject to the terms and
conditions set forth in the Exchange Agreement. The phases are identified in Exhibit G as
Phase 1A, 1B, 2, 3, 4 and 5. Property is to be conveyed in phases upon the completion of
certain improvements by the Developer (as successor to the Developer’s Predecessor). Phase
1A and 1B have heretofore been conveyed and comprise Improvement Area No. 1 of the CFD,
with the subsequent phases comprising the Future Annexation Area. Exhibit G provides that, as
each additional phase is conveyed, it will be annexed into the CFD, with each of Phases 2, 3, 4
and 5 expected to become a new Improvement Area, identified as Improvement Area No. 2
(Phase 2), 3 (Phase 3), 4 (Phase 4) and 5 (Phase 5), respectively. The provisions of Exhibit G
summarized in the foregoing sentence represent the current expectations of the parties, but the
actual assignment of phases to improvement areas may differ from the current expectations.
Upon the annexation of a portion of the Future Annexation Area to the CFD, the
provisions of this Agreement shall extend to the Developer (as said term is defined herein to
include transferees of the Developer) of the annexed portion of the Property without the
necessity of any amendment of this Agreement or the execution of any additional such
agreement pertaining to the annexed portion.
H. The Authorized Facilities and Authorized Fees are necessary to mitigate impacts
arising from development occurring in the CFD, and the City will benefit from a coordinated plan
of design, engineering and construction of the Authorized Facilities and the development of the
Property.
I. The City has determined that it will obtain no advantage from undertaking the
construction of the Authorized Facilities and that the Authorized Facilities may be constructed by
the Developer as if they had been constructed under the direction and supervision, or under the
authority of, the City, by complying with the provisions of this Agreement.
J. As a result of a special election conducted on June 2, 2015, the City has been
authorized to levy a special tax on property within the CFD (the “Special Tax”) and to issue
special tax bonds and other debt obligations (the “Bonds”) in one or more series, which Bonds
shall be payable as to principal and interest from proceeds of the Special Tax, as provided by
the Act.
K. Each series of the Bonds, when issued, will be secured by and will be payable solely
from the proceeds of the Special Tax levied upon the taxable property within a specified
Improvement Area. However, proceeds of the Bonds may be expended to pay the Purchase
Price of Authorized Facilities or Discrete Components or to reimburse for Authorized Fees which
have been paid in accordance with this Agreement irrespective of whether they are situated
within or adjacent to the boundary of that specified Improvement Area.
DEFINITIONS
Capitalized terms used in this Agreement, in addition to those defined elsewhere in this
Agreement, shall have the following meanings:
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“Acceptance Date” means the date upon which the City or other public entity or public
utility accepts fee simple title or an irrevocable offer of dedication of one or more Authorized
Facilities.
“Act” means the Mello-Roos Community Facilities Act of 1982, as amended, being Part 1
(commencing with Section 53311) of Division 2 of Title 5 of the California Government Code.
“Actual Cost” means, with respect to an Authorized Facility or a Discrete Component, an
amount equal to the sum of (a) the Developer’s actual, reasonable cost of constructing such
Authorized Facility or Discrete Component, including labor, material, and equipment cost s, (b)
the Developer’s actual, reasonable cost of preparing the Plans for such Authorized Facility or
Discrete Component, (c) the Developer’s actual, reasonable cost of environmental evaluations
required in the City’s reasonable determination specifically for such Authorized Facility or
Discrete Component, (d) the amount of the fees actually paid by the Developer to governmental
agencies in order to obtain permits, licenses, or other necessary governmental approvals for
such Authorized Facility or Discrete Component, (e) the Developer’s actual, reasonable cost for
construction management services respecting the construction and installation of any
Authorized Facility or Discrete Component, (f) the Developer’s actual, reasonable cost for
professional services directly related to the construction and installation of such Authorized
Facility or Discrete Component, including engineering, inspection, construction staking,
materials testing, and similar professional services, (g) the Developer’s actual, reasonable cost
of any title insurance, escrow fees or costs, or like expenses incurred with respect to transfer of
ownership of any such Authorized Facility or Discrete Component, and (h) the Developer’s
actual, reasonable cost of any real property or interest therein acquired from a party other than
the Developer, which real property or interest therein is either necessary for the construction of
such Authorized Facility or Discrete Component (e.g., temporary construction easements, haul
roads, etc.) or is required to be conveyed with such Authorized Facility or Discrete Component
in order to convey acceptable title thereto to the City or other applicable public entity or public
utility, as specified in a Payment Request that has been reviewed and approved by the Director
of Public Works or his designee who will be responsible for administering the acquisition of the
Authorized Facility or Discrete Component; provided, however, that no item of cost relating to an
Authorized Facility or Discrete Component shall be included in more than one category of cost
under this definition; and provided further, however, that each item of cost shall be chargeable
to the capital account for the Authorized Facility under generally accepted accounting principles.
“Agreed-Upon Allocation” shall have the meaning ascribed to it in Section 6(e)(vi) herein.
“Agreement” means this Acquisition Agreement, dated as of July 18, 2017, by and
between the City and the Developer.
“Army” means the Department of the Army of the United States of America.
“Authorized Facility” and “Authorized Facilities” mean one or more of the public capital
facilities general described in the Resolution of Formation, as amended by Resolution No. 93-
17, adopted by the City Council on June 20, 2017, and described in more detail in Exhibit A
hereto.
“Authorized Fees” means the capital facility fees generally described in the Resolution of
Formation, as amended by Resolution No. 92-17, adopted by the City Council on June 20,
2017, and described in more detail in Exhibit A hereto.
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“Bonds” means limited obligation bonds or other debt obligations, whether taxable or tax-
exempt, fixed-rate or variable-rate, issued by the City with respect to the CFD the principal of
and interest on which are payable from proceeds of Special Taxes levied upon the taxable
property within a specified Improvement Area.
“Boundary Map” means the boundary map of the CFD containing the matters prescribed
by the Act, approved by Resolution No. 54-15, adopted by the City Council on April 21, 2015,
and recorded on May 4, 2015, in Book 18 of Maps of Assessment and Community Facilities
Districts, at page 61, official records of the County Recorder, as supplemented by Annexation
Map No. 1, approved by Resolution No. 93-17, adopted by the City Council on June 20, 2017,
and recorded on June 26, 2017, in Book 317 of Maps of Assessment and Community Facilities
Districts, at page 60, official records of the County Recorder.
“CFD” means the City of Dublin Community Facilities District No. 2015-1 (Dublin
Crossing) and Improvement Area No. 1, as shown on the Boundary Map; provided that the area
shown on the Boundary Map as “Future Annexation Area” may be annexed to the CFD in
phases from time-to-time in accordance with the Act, and all references herein to the CFD shall
be deemed to include such portions of the Future Annexation Area as have been so annexed,
including any such Improvement Areas designated out of such Future Annexation Area.
“City” means the City of Dublin, California.
“City Council” means the legislative body of the City.
“City Manager” means the person who is the duly appointed and acting City Manager of
the City.
“Conditions of Approval” means the conditions of approvals and mitigation measures
imposed in connection with the granting of the land use entitlements for the development the
Project, and any subdivision improvement, owner participation agreement, development or other
agreement with the City relating to the development of the Project, the installation of the
Authorized Facilities or the payment of Authorized Fees, including but not limited to those set
forth in the Development Agreement.
“Continuing Disclosure Undertaking” means the written instrument to be executed by the
Developer in connection with the issuance of any series of Bonds for an Improvement Area by
which the Developer agrees to provide such information pertaining to the Property in such
Improvement Area, development of the Property in such Improvement Area, and the
Developer’s financing plan for the development of the Property in such Improvement Area, as
shall be prescribed by such instrument, all in furtherance of enabling the City’s bond underwriter
to comply with disclosure obligations imposed upon the bond underwriter under federal
securities laws.
“County Recorder” means the County Recorder of the County of Alameda, State of
California.
“DA Assignment” means that certain agreement entitled “Assignment and Assumption of
Development Agreement,” entered into between the Developer’s Predecessor and the
Developer, made and effective as of August 28, 2015, and recorded in the official records of the
County Recorder on August 28, 2015, as Document No. 2015239932.
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2678014.4
“Developer” means, initially, Dublin Crossing LLC, and its successors; provided that in
the event that the Developer transfers its rights and obligations respecting any portion of the
Property and the associated Authorized Facilities and/or Authorized Fees, pursuant to and in
compliance with the terms and conditions of Section 20 of the Development Agreement and
pursuant to an assignment and assumption agreement substantially in the form of the DA
Assignment and entered into between the Developer and the transferee and approved in writing
by the City Manager, the term “Developer” as used in this Agreement shall be deemed to
include such transferee to the extent applicable to the Authorized Facilities (or Discrete
Components thereof) and/or Authorized Fees, and the provisions of this Agreement respecting
the financing of Authorized Facilities and/or Authorized Fees shall become applicable to such
transferee, subject to the terms and conditions hereof, except as otherwise provided in the DA
Assignment.
“Developer Allocation” shall have the meaning ascribed to it in Section 6(e)(vi) herein.
“Developer’s Predecessor” means Dublin Crossing Venture LLC, a Delaware limited
liability company.
“Development Agreement” means the Original Development Agreement, as amended by
the First Amendment, the Second Amendment, the Third Amendment, and any further
amendment thereto
“Director of Public Works" means the Public Works Director of the City or such other
official of the City acting in such capacity, or the designee of such official.
"Discrete Component" means a component of an Authorized Facility described in Exhibit
A attached hereto, which is a functional segment of an Authorized Facility costing more than
$1.0 million, that can be separately identified and inspected and that can be the subject of a
Payment Request. Discrete Components do not have to be accepted by the City (or other
applicable public entity or public utility to which ownership will be transferred) as a condition
precedent to the payment of the Purchase Price therefor, but any such payment shall not be
made until the Discrete Component has been constructed in accordance with the Plans therefor,
as determined by the Director of Public Works. Exhibit A may be modified at any time by the
Developer for the purpose of identifying Discrete Components of Authorized Facilities, subject to
the written approval of the Director of Public Works, without City Council approval.
“Exchange Agreement” means the agreement dated March 4, 2011, between the
Developer’s Predecessor and the Army.
“First Amendment” means that certain agreement entered into between the City and t he
Developer’s Predecessor, dated June 16, 2015, and recorded in the official records of the
County Recorder on July 22, 2015, as Document No. 2015202606, which amends the Original
Development Agreement.
“Fiscal Agent” means the bank, trust company or other authorized fiduciary serving as
Fiscal Agent under the applicable Fiscal Agent Agreement.
"Fiscal Agent Agreement" means an indenture, fiscal agent agreement, resolution or
other instrument under which one or more series of Bonds for an Improvement Area are issued,
as such Fiscal Agent Agreement may be supplemented from time to time to accommodate
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additional bond issuances for the applicable Improvement Area or as it may be amended from
time to time.
“Fiscal Agent Agreements” means the total set of individual Fiscal Agent Agreements
pertaining to all of the Improvement Areas of the CFD.
“Funding Sources” means, collectively, (A) Net Proceeds, (B) proceeds of Special Taxes
levied and collected prior to the issuance of Bonds for an Improvement Area and not needed for
the payment of the principal of or the interest on Bonds, (C) proceeds of prepayments of Special
Taxes collected prior to the issuance of the first series of Bonds for an Improvement Area
pursuant to the applicable Rate and Method, (D) proceeds of prepayments of Special Taxes
otherwise allocated for Authorized Facilities or Authorized Fees under the applicable Rate and
Method, as further described in Section 3 herein, and (E) proceeds of Special Taxes collected to
directly finance Authorized Facilities and/or Authorized Fees under the applicable Rate and
Method and which are allocated to fund such Authorized Facilities and/or Authorized Fees in the
discretion of the City, as further described in Section 4 herein.
“Future Annexation Area” means that portion of the Property which is designated as
Future Annexation Area on the Boundary Map and which is intended to be annexed into the
CFD in the future, whether as land added to an existing Improvement Area or as land
establishing a new Improvement Area.
“Improvement Area” shall mean that portion of the area within the CFD boundary
designated as a separate improvement area, as provided under the Act, Improvement Area No.
1 having been shown on the Boundary Map to include all of the Property currently within the
CFD, and with intention to (a) annex additional portions of the Property to Improvement Area
No. 1 and (b) establish Improvement Areas No. 2 through 5, inclusive, to include portions of the
Property designated as “Future Annexation Area” on the Boundary Map and intended to be
annexed in the future.
“Improvement Area No. 1” means Improvement Area No. 1 of the CFD.
“Improvement Fund” means the fund to be established under each Fiscal Agent
Agreement, whether by that name or a similar name (such as “Construction Fund”), into which
the monies from the Funding Sources are to be deposited and from which the monies from the
Funding Sources and the investment earnings thereon are to be disbursed to provide for the
financing of Authorized Facilities, Discrete Components or Authorized Fees. To facilitate the
tracking of expenditures for federal tax purposes, the Improvement Fund shall consist of
separate subaccounts for the deposit of (i) Net Proceeds and (ii) all other Funding Sources.
“Improvement Funds” means, collectively, the total set of individual Improvement Funds
established under each of the individual Fiscal Agent Agreements.
“Land” shall have the meaning ascribed to it in Section 7(a) herein.
“Net Proceeds” means the proceeds of sale of any series of Bonds prescribed for
deposit into the applicable Improvement Fund after first depositing the prescribed portion of
such proceeds of sale into the applicable reserve fund, administrative expense fund or any like
fund or account established under the applicable Fiscal Agent Agreement for purposes other
than financing of Authorized Facilities, Discrete Components or Authorized Fees.
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2678014.4
“Obligated Transferee” means any Transferee who,
“Original Development Agreement” means that certain agreement entitled “Development
Agreement,” dated November 19, 2013, between the City and the Developer’s Predecessor,
and recorded in the official records of the County Recorder on June 4, 2014, as Document No.
2014134795.
“Original Development Agreement, as Amended” means the Original Agreement, as
amended by the First Amendment.
“Payment Request” means a written request submitted to the City by the Developer in
substantially the form and containing the information prescribed by Exhibit B to this Agreement.
“Plans” means the plans, specifications, schedules and related construction contracts for
the Authorized Facilities and/or any Discrete Components thereof approved pursuant to the
applicable standards of the City or other public entity or public utility that will own, operate or
maintain a prescribed portion of the Authorized Facilities when completed and acquired.
“Project” means the land development project which the Developer intends to implement
on the Property in phases as described in the Development Agreement.
“Property” means the land described in Exhibit A to the Original Development
Agreement.
“Purchase Price” means the amount payable by the City to the Developer for an
Authorized Facility and/or any Discrete Component thereof determined in accordance with this
Agreement.
“Rate and Method” means the rate and method of apportionment of the Special Tax,
established pursuant to the Act and pertaining to that portion of the Property situated within a
given Improvement Area, as set forth in Exhibits B through F, inclusive, of the Resolution of
Formation, said Exhibits B through F corresponding to the proposed Improvement Areas No. 1
through 5, respectively.
“Remainder Taxes” means, for an Improvement Area, the amount of Special Taxes
levied and collected for a given Fiscal Year, determined as of September 15 following the June
30 conclusion of the Fiscal Year, which exceeds the total of the amounts included in the Special
Tax Requirement for such Fiscal Year on account of (a) Bond principal and/or interest payable
during the calendar year which began during such Fiscal Year, (b) replenishing the reserve fund
for the Bonds as required by the applicable Fiscal Agent Agreement and (c) administrative
expenses.
“Remaining Facilities Amount” means the amount of prepaid special taxes received by
the City as part of a prepayment of Special Taxes on account of Remaining Facilities Costs, as
determined in accordance with Section I of the applicable Rate and Method.
“Resolution of Formation” means Resolution No. 96-15, adopted by the City Council on
June 2, 2015, by which the CFD was established.
“Second Amendment” means that certain agreement entered into between the City and
the Developer, made and entered into on February 9, 2016, and recorded in the official records
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2678014.4
of the County Recorder on March 8, 2016, as Document No. 2016056821, which amends the
Original Development Agreement, as Amended.
“Special Tax” shall have the meaning ascribed to it in Recital J herein.
“Special Tax Requirement” shall have the meaning ascribed to it in the applicable Rate
and Method.
“State” means the State of California.
“Transferee” shall have the meaning ascribed to it in Section 10(b)(iv) herein.
AGREEMENT
In consideration of the mutual promises and covenants set forth herein, and for other
valuable consideration, the sufficiency of which is hereby acknowledged, the City and the
Developer agree as follows:
1. Recitals; Applicability.
a. Recitals. The City and the Developer represent and warrant, each to the other,
that the above recitals, as applicable to each, are true and correct.
b. Applicability. This Agreement applies to the CFD, including Improvement Area
No. 1 and, upon the annexation of a portion of the Future Annexation Area to the CFD, to the
annexed portion of the Future Annexation Area (and any Improvement Area in which the
annexed property is designated), without the necessity of any amendment of this Agreement or
the execution of any additional such agreement pertaining to the annexed portion.
2. Sale of Bonds.
a. City Proceedings. From time to time and in consultation with the Developer, the
City shall conduct all necessary proceedings under the Act for the issuance, sale and delivery of
one or more series of Bonds; provided that such proceedings and the principal amount, rates,
terms and conditions and timing of the sale of each series of Bonds shall be in all respects
subject to the final approval of the City Council. Nothing herein shall be construed as modifying
the provisions of the Development Agreement in general and of Exhibit G to the Development
Agreement in particular with respect to the establishment of the CFD, the issuance, sale and
delivery of Bonds and the application of the Net Proceeds and the proceeds of Special Taxes to
finance Authorized Facilities, Discrete Components or Authorized Fees. In the event of any
conflict between the provisions of the Development Agreement (including Exhibit G thereto) and
the provisions of this Agreement, the provisions of the Development Agreement shall prevail
and govern.
b. Principal Amount. The maximum principal amount of the Bonds that is
authorized for the CFD is $150,000,000. The City can provide no assurances that it will be able
to issue or sell the entire authorized principal amount of the Bonds.
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3. Use of Financing Proceeds.
a. Prepayments. The proceeds of any prepayments of Special Taxes shall be
administered as provided in the applicable Rate and Method. Without limiting the generality of
the foregoing, the portion of any prepayment representing the “Remaining Facilities Amount”
shall be deposited in the Improvement Fund for payment when due under this Agreement of the
costs of acquisition of Authorized Facilities and Discrete Components thereof or for the
financing of Authorized Fees. In the event that proceeds of prepayments of Special Taxes are
received by the City prior to issuance of Bonds, the City shall establish and maintain an
Improvement Fund for the applicable Improvement Area. Following issuance of Bonds, the City
shall transfer any balance in the Improvement Fund to the Fiscal Agent for deposit into the
Improvement Fund to be established pursuant to the applicable Fiscal Agent Agreement.
Amounts deposited into any Improvement Fund held by the City prior to Bond issuance
shall be withdrawn therefrom, in accordance with the provisions of this Agreement and the
Development Agreement, for payment of any amounts payable to the Developer (as defined
herein to include transferees of the Developer) under the terms of this Agreement on account of
costs of acquisition of Authorized Facilities and Discrete Components thereof or for the
financing of Authorized Fees.
b. Bond Proceeds. The proceeds of each series of Bonds shall be deposited, held,
invested, reinvested and disbursed as provided in the applicable Fiscal Agent Agreement. The
Net Proceeds of each series of Bonds shall be set aside under the applicable Fiscal Agent
Agreement in the Improvement Fund. For each Improvement Area, moneys in the Improvement
Fund shall be withdrawn therefrom, in accordance with the provisions of the applicable Fiscal
Agent Agreement and this Agreement, for payment of all or a portion of the costs of acquisition
of Authorized Facilities and Discrete Components thereof or for the financing of Authorized
Fees. The City makes no warranty, express or implied, that the Net Proceeds of the Bonds
deposited and held in the Improvement Fund, along with other Funding Sources, will be
sufficient for payment of the Purchase Price of all of the Authorized Facilitie s and for financing
all of the Authorized Fees.
The Developer agrees that the City shall direct the investment of the funds on deposit in
the funds and accounts established by or pursuant to the Fiscal Agent Agreement, including the
Improvement Fund, and that the Developer has no right whatsoever to direct investments under
the Fiscal Agent Agreement.
The City shall have no responsibility whatsoever to the Developer with respect to any
investment of funds under the Fiscal Agent Agreement, including any loss of all or a portion of
the principal invested or any penalty for liquidation of an investment. Any such loss may
diminish the amounts available in the Improvement Fund to pay the Purchase Price of
Authorized Facilities or Discrete Components and to finance Authorized Fees hereunder. The
Developer further acknowledges that the obligation of any owner of real property in the CFD,
including the Developer to the extent it owns any real property in the CFD, to pay Special Taxes
is not in any way dependent on (i) the availability of amounts in the Improvement Fund to pay
for all or any portion of the Authorized Facilities or Discrete Components thereof or to finance
Authorized Fees hereunder, or (ii) the alleged or actual misconduct of the City in the
performance of its obligations under this Agreement, the Fiscal Agent Agreement, any
subdivision agreement or amendment thereto or any other agreement to which the Developer
and the City are signatories.
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The Developer acknowledges that any lack of availability of amounts in the applicable
Improvement Fund to pay the Purchase Price of Authorized Facilities or any Discrete
Components thereof or to finance Authorized Fees shall in no way diminish any obligation of the
Developer with respect to the construction of or contributions for public facilities or the payment
of fees required by the Conditions of Approval.
4. Special Taxes. The City shall levy and collect Special Taxes on all taxable property
within each applicable Improvement Area as provided by the applicable Rate and Method. The
proceeds of such Special Taxes levied and collected prior to issuance of Bonds shall be
administered by the City in accordance with the applicable Rate and Method and this
Agreement, and, following the issuance of Bonds, the proceeds of such Special Taxes shall be
administered by the City as provided in this Agreement and the Fiscal Agent Agreement.
Without limiting the generality of the foregoing, the City shall deposit any Remainder
Taxes received prior to Bond issuance in an Improvement Fund to be established, maintained
and administered by the City and applied in the same manner as prescribed by Section 3(a)
above with respect to Remaining Facilities Amounts. Following Bond issuance, the City shall
transmit any Remainder Taxes to the Fiscal Agent for deposit into the Improvement Fund
established under the applicable Fiscal Agent Agreement.
5. Construction of the Facilities.
a. Plans. The Developer represents that it has obtained or will obtain approval of
the Plans from all appropriate departments of the City, from any other applicable public entity or
public utility which will become the owner of any Authorized Facilities or Discrete Components
and from any other public entity having jurisdiction with respect to approval of Plans for any
Authorized Facility or Discrete Component. The Developer further represents that the
Authorized Facilities have been or will be constructed in full compliance with such Plans and
any change orders thereto, as approved in the same manner. Copies of all Plans shall be
provided by the Developer to the Director of Public Works.
b. Duty of Developer to Construct Authorized Facilities and to Pay Authorized Fees.
All Authorized Facilities to be acquired hereunder shall be constructed by or at the direction of
the Developer in accordance with the approved Plans and the Conditions of Approval, and all
Authorized Fees shall be paid by the Developer when due. The Developer shall perform all of
its obligations hereunder and shall conduct all operations with respect to the construction of the
Authorized Facilities in a good, workmanlike and commercially reasonable manner, with the
standard of diligence and care normally employed by duly qualified persons utilizing their best
efforts in the performance of comparable work and in accordance with generally accepted
practices appropriate to the activities undertaken. The Developer shall employ, or cause to be
employed, at all times adequate staff or consultants, with the requisite experience necessary (i)
to administer and coordinate all work related to the design, engineering, acquisition,
construction and installation of the Authorized Facilities and (ii) to determine the Actual Cost of
Authorized Facilities and/or Discrete Components and the amount of Authorized Fees that have
been paid and (iii) to then prepare and submit Payment Requests hereunder.
The Developer shall be obligated: (i) to construct with its own funds, or cause to e
constructed, and cause conveyance to the City or other applicable public entity or public utility
all Authorized Facilities (including Discrete Components thereof) and (ii) to pay, or cause to be
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2678014.4
paid, the Authorized Fees, both in accordance with the Conditions of Approval and the
Developer’s timing of development of the Property, subject to seeking recoupment of the
Purchase Price of the Authorized Facilities and the Authorized Fees from available Funding
Sources by the submission of Payment Requests as provided in this Agreement.
The Developer shall not be relieved of its obligation to construct, or cause to be
constructed, each Authorized Facility (including Discrete Components thereof) and convey, or
cause to be conveyed, each such Authorized Facility to the City or other applicable public entity
or public utility in accordance with the terms hereof, even if there are insufficient Funding
Sources at the time to pay the Purchase Price thereof, and, in any event, this Agreement shall
not affect any obligation of any owner of land in the CFD under any Conditions of Approval or
any governmental approval to which any portion of the Property is subject, with respect to the
public improvements required in connection with the development of the Property.
c. Prevailing Wages. The Developer covenants that, with respect to any contracts
or subcontracts for the construction of the Authorized Facilities, it will assure complete
compliance with State law pertaining to the payment of prevailing wages for such construction.
d. Relationship to Public Works. This Agreement is for the acquisition of the
Authorized Facilities or Discrete Components thereof and for the financing of Authorized Fees
by the City from Funding Sources and is not intended to be a public works contract. The City
and the Developer agree that the Authorized Facilities are of local, and not state-wide concern,
and that the provisions of the California Public Contracts Code shall not apply to the
construction of the Authorized Facilities. The City and the Developer agree that this Agreement
is necessary to assure the timely and satisfactory completion of the Authorized Facilities and
that compliance with the Public Contracts Code with respect to the Authorized Facilities would
work an incongruity and would not produce an advantage to the City.
Notwithstanding the foregoing, the Developer shall solicit at least three (3) competitive
bids for each contract for construction of Authorized Facilities and award all contracts for
construction of the Authorized Facilities (including any Discrete Components thereof), in each
case consistent with the Plans and the Conditions of Approval, to the lowest responsible bidder
among the competitive bids received.
e. Performance and Payment Bonds. The Developer agrees to comply with all
applicable performance and payment bonding requirements of the City (and other applicable
public entities or public utilities) with respect to the construction of the Authorized Facilities. All
contractors and/or subcontractors employed by the Developer in connection with construction of
the Authorized Facilities shall provide a labor and materials bond and a performance bond that
names the City as an additional insured.
f. Contracts and Change Orders. The Developer shall be responsible for entering
into all contracts and any change orders required for the construction of the Authorized
Facilities. All such contracts and change orders shall be submitted to the Director of Public
Works for review and approval as to cost and quantity and quality of work.
g. Independent Contractor. In performing this Agreement, the Developer is an
independent contractor and not the agent or employee of the City. The City shall not be
responsible for making any payments to any contractor, subcontractor, agent, employee or
supplier of the Developer.
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h. Periodic Meetings. From time to time at the request of the Director of Public
Works, representatives of the Developer shall meet and confer with City staff, consultants and
contractors regarding matters arising hereunder with respect to the Authorized Facilities and the
progress in constructing and acquiring the same, and as to any other matter related to the
Authorized Facilities or this Agreement. The Developer shall advise the Director of Public
Works in advance of any coordination and scheduling meetings to be held with contractors
relating to the Authorized Facilities, in the ordinary course of performance of an individual
contract. The Director of Public Works or his/her designated representative shall have the right
to be present at such meetings, and to meet and confer with individual contractors if deemed
advisable by the Director of Public Works to resolve disputes and/or ensure the proper
completion of the Authorized Facilities or Discrete Components.
6. Payment for the Facilities. The Developer hereby agrees to sell the Authorized
Facilities to the City or other applicable public entity or public utility, and the City hereby agrees
to use Funding Sources, as available from time to time, to pay the Purchase Price thereof to the
Developer, subject to the terms and conditions hereof.
a. Inspection. No payment hereunder shall be made by the City to the Developer
for an Authorized Facility or Discrete Component thereof until the Authorized Facility or Discrete
Component thereof has been inspected by the City or other applicable public entity or public
utility and found to be constructed in accordance with the approved Plans. For Authorized
Facilities to be acquired by the City, the Developer shall request inspection using applicable City
procedures. For Authorized Facilities to be acquired by other public entities or utilities, the
Developer shall be responsible for obtaining such inspections and providing written evidence
thereof to the Director of Public Works. The Developer agrees to pay all inspection, permit and
other similar fees of the City applicable to construction of the Authorized Facilities, and such
fees are subject to reimbursement under this Agreement as part of the Actual Cost of the
Authorized Facilities.
b. Request for Payment. Any request for payment hereunder by the Developer
shall be in a form substantially similar to the form attached to this Agreement as Exhibit B and
shall include such supporting documentation to substantiate such request as the City may
require. For any request for payment, the following shall apply:
(i) Substantiation of Actual Costs. The Developer shall provide
documentation satisfactory to the Director of Public Works to substantiate the Actual
Cost of the Authorized Facilities and to determine that the Authorized Facilities are
consistent with the approved Plans. With respect to a Payment Request pertaining to
financing of Authorized Fees, the documentation shall demonstrate that such Authorized
Fees have been paid by the Developer. There shall be a presumption of
reasonableness as to costs incurred under a construction contract (or change order)
entered into as a result of a call for bids by the Developer (or similar procedure approved
by the Director of Public Works), provided that no extraordinary lim itations or
requirements (such as a short time frame) are imposed by the Developer on the
performance of such contracts. For any Authorized Facility to be acquired by a public
entity or utility other than the City, the Developer shall provide written evidence of the
approval of such cost substantiation and approval of such Authorized Facility from such
entity or utility when requesting payment.
(ii) Payment of Claims. In order to receive the Purchase Price for a completed
Authorized Facility or Discrete Component, inspection thereof under Section 6(a) shall
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2678014.4
have been made and the Developer shall deliver to the Director of Public Works: (A) a
payment request for such Authorized Facility or Discrete Component, together with all
supporting documentation required by this Agreement to be included therewith, and (B) if
payment is requested for a completed Authorized Facility, (1) if the property on which the
Authorized Facility is located is not owned by the City (or other applicable public entity
that will own the Authorized Facility) at the time of the request, a copy of the recorded
documents conveying to the City (or other applicable public entity or public utility that will
own the Authorized Facility) title to the real property on, in or over which such Authorized
Facility is located, as described in Section 7 hereof, (2) a copy of the recorded notice of
completion of such Authorized Facility (for an Authorized Facility or the final Discrete
Component only, if applicable), (3) to the extent paid for with the proceeds of the Bonds
or the proceeds of Special Taxes, an assignment to the City for the benefit of the CFD of
any reimbursements that may be payable with respect to the Authorized Facility, such as
public utility reimbursements, and (4) an assignment of the warranties and guaranties for
such Authorized Facility, as described in Section 7 hereof, in a form acceptable to the
City.
c. Conditions for Acceptance. The City shall not be obligated to pay the Purchase
Price of any Authorized Facility or Discrete Component until the Authorized Facility or Discrete
Component is constructed and the processing requirements of this Section 6 for such
Authorized Facility or Discrete Component have been satisfied. The Developer acknowledges
that the Discrete Components have been identified for payment purposes only, and that the City
shall not accept an Authorized Facility of which a Discrete Component is a part until the entire
Authorized Facility has been completed. The City acknowledges that the Discrete Components
do not have to be accepted by the City as a condition precedent to the payment of the Purchase
Price therefor, but any such payment shall not be made until the Discrete Component has been
constructed in accordance with the Plans therefor, as determined by the Director of Public
Works. In any event, the City shall not be obligated to pay the Purchase Price for any
Authorized Facility or Discrete Component except from the Funding Sources.
d. Purchase Price. The Purchase Price shall be based upon Actual Cost, as
evidenced by documentation provided by the Developer and submitted to the Director of Public
Works. The Purchase Price paid hereunder for any Authorized Facility or Discrete Component
thereof may be paid in any number of installments as Funding Sources become available.
e. Payments to the Developer. The Developer may request in writing a payment of
the Purchase Price of any Authorized Facility or Discrete Component thereof as described in
Exhibit A hereto subject to the following:
(i) Compliance with Conditions. The Developer shall first comply with
Subsections 6 (a) through (c) above and shall have demonstrated the ability to comply
with Section 7 below, all to the satisfaction of the Director of Public Works.
(ii) Source of Payments. The City and the Developer expect the Purchase
Price, in some cases, may be paid partially from Bond proceeds and partially from other
available Funding Sources.
(iii) Retainage. From each payment requested, a 5% retainage shall be held by
the City in the Improvement Fund for the cost of any Authorized Facility or Discrete
Component thereof being acquired by the City pending final completion and acceptance
of the related Authorized Facility or Discrete Component thereof. Any such retention will
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2678014.4
be released to the Developer upon final completion and acceptance of the related
Authorized Facility and the expiration of a maintenance period consistent with applicable
City policy thereafter. However, no such retainage shall be required if the Developer
provides a completion bond that is satisfactory to the City for this purpose. Unless
otherwise provided in writing, there shall be no such retainage required for Authorized
Facilities or Discrete Components thereof to be acquired by other public entities or public
utilities. In lieu of such retainage, the Developer shall at any time have the option of
providing the City with either a completion bond, letter of credit or other guaranty in form
and substance satisfactory to the Director of Public Works, upon receipt of wh ich the
City shall promptly release such retainage.
As of the Acceptance Date of an Authorized Facility or the inspection and
approval of a Discrete Component, the completion bond provided by the Developer for
such Authorized Facility or Discrete Component shall be reduced in accordance with the
City’s standard requirements for subdivision improvements and, if applicable, shall serve
as a completion bond to guarantee that such Authorized Facility or Discrete Component
will be free from defects due to faulty workmanship or materials for the period required
by the City’s standard requirements for subdivision improvements, or the Developer may
elect to provide a new completion bond in such an amount. As of the Acceptance Date
of an Authorized Facility, the Developer shall provide a completion bond to guarantee
that such Authorized Facility will be free from defects due to faulty workmanship or
materials for the period required by the City’s standard requirements for subdivision
improvements, which completion bond shall be in the amount required by the City’s
standard requirements for subdivision improvements.
(iv) Requests for Payment. Any Payment Request shall be submitted by the
Developer to the Director of Public Works in the form attached to this Agreement as
Exhibit B, accompanied by the supporting documentation herein specified. Within 10
business days following receipt of a Payment Request, the Director of Public Works shall
review such request and advise the Developer in writing whether the Payment Request
is deemed complete. In the event that the Payment Request is deemed incomplete, the
Director of Public Works shall advise the Developer as to what is missing, and no further
action with respect to the Payment Request shall be required until the Dire ctor of Public
Works deems the submission complete. In the event that the Payment Request is
deemed complete, the Director of Public Works shall advise the Developer in writing,
within 10 business days following such determination, whether the Payment Req uest is
approved or denied, in whole or in part, and in the case of denial setting forth the
reasons for denial. The Developer shall be entitled to resubmit any request or portion
thereof which is deemed incomplete or which is denied if it is able to address the
reasons for the incompleteness or denial. Failure of the Director of Public Works to deny
any request within the stated period of 10 business days following the determination that
the Payment Request is complete shall constitute approval of the request.
(v) Payment by the City. The City shall cause payment to be made to the
Developer pursuant to the applicable provisions of this Agreement and the Fiscal Agent
Agreement within 30 calendar days of either (a) approval of a Payment Request or (b)
receipt of any completed Payment Request that is not denied. The City may make any
payment on a Payment Request jointly to the Developer and any mortgagee or trust
deed beneficiary, contractor or supplier of materials, as their interests may appear, or
solely to any such third party, if the Developer so requests the same in writing or as the
City otherwise determines such joint or third party payment is necessary to obtain lien
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2678014.4
releases. If there are insufficient Funding Sources to pay the full amount of an app roved
Payment Request, then the City shall pay as much of the amount on the Payment
Request as there are Funding Sources available, and the payment of the balance of the
Payment Request shall be deferred until there are sufficient Funding Sources available
to the remaining balance of the Payment Request. Promptly following the availability of
Funding Sources, the City shall, from time to time and in as many installments as
necessary, pay the remaining balance of the Payment Request. Payment Requests
may be paid (i) in any number of installments as Funding Sources become available and
(ii) irrespective of the length of time of such deferral of payment.
(vi) Allocation of Costs. If Developer incurs costs that (1) apply to more than
one Authorized Facility or Discrete Component (e.g., soft costs) or (2) apply to both
Authorized Facilities or Discrete Components and improvements other than the
Authorized Facilities or Discrete Components (e.g., grading), Developer shall allocate, or
cause the contractor to reasonably allocate, such costs between the Authorized
Facilities or Discrete Components (in the case of clause (1)) or between the Authorized
Facilities or Discrete Components and the improvements other than the Authorized
Facilities or Discrete Components (in the case of clause (2)) (the “Developer Allocation”).
The Developer Allocation shall be presumed to be reasonable and shall be accepted for
all purposes of this Agreement unless the City notifies Developer of its good-faith
reasonable disapproval of the allocation within ten (10) business days of submittal of the
payment request. If the City has properly disapproved the Developer Allocation, then
the City and Developer shall promptly allocate such costs, on a reasonable basis,
between the Authorized Facilities or Discrete Components (in the case of clause (1)) or
between the Authorized Facilities or Discrete Components and the improvements other
than the Authorized Facilities or Discrete Components (in the case of clause (2)) (the
“Agreed-Upon Allocation”). Based on the Developer Allocation or the Agreed-Upon
Allocation, if applicable, the City shall include the costs allocated to a specific Authorized
Facility or Discrete Component as part of the Actual Costs of such Authorized Facility or
Discrete Component when such Authorized Facility or Discrete Component is subject to
a payment request.
(vii) Expectations of the Parties. The Developer and the City understand and
agree that (i) the Developer will be constructing Authorized Facilities or Discrete
Components prior to the availability of Funding Sources that will be used to pay for such
Authorized Facilities or Discrete Components, (ii) the City or the other public entities or
public utilities that will own and operate such Authorized Facilities or Discrete
Components may be inspecting such Authorized Facilities or Discrete Components and
processing and completing payment requests for the payment on such Authorized
Facilities or Discrete Components with knowledge that there may be insufficient Funding
Sources available at such time, (iii) the Authorized Facilities or Discrete Components
may be conveyed to and accepted by the City or other public entity or public utility that
will own and operate such Authorized Facilities or Discrete Components when t here are
insufficient Funding Sources to pay the Purchase Price of such Authorized Facilities or
Discrete Components, and (iv) in any such case, the payment of any approved payment
requests for the Purchase Price of such Authorized Facilities or Discrete Components
will be deferred until there are sufficient Funding Sources available to pay the Purchase
Price of such Authorized Facilities or Discrete Components, at which time the City will
make such payments in accordance with this Agreement. At all times, the Developer will
be constructing such Authorized Facilities or Discrete Components with the expectation
that the Purchase Price for such Authorized Facilities or Discrete Components will be
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2678014.4
paid from the Funding Sources. The conveyance of Authorized Facilities or Discrete
Components to the City or other applicable public entity or public utility that will own and
operate such Authorized Facilities or Discrete Components prior to receipt of the
Purchase Price for such Authorized Facilities or Discrete Components shall not be
construed as a gift or a waiver of the payment of the Purchase Price, or any part thereof,
for such Authorized Facilities or Discrete Components.
7. Ownership and Transfer of the Authorized Facilities; Maintenance; Warranties. Any
of the Authorized Facilities to be owned by public entities or public utilities other than the City
shall be conveyed in accordance with the entity’s or utility’s policies and procedures. For the
Authorized Facilities to be owned by the City, the following applies:
a. Land. For purposes of this Agreement, the term “Land” includes fee simple title
or such lesser interests (including easement and/or rights of way or an irrevocable offer of
dedication of the real property with interests therein) as are required and approved by the City
and are included in the description of the Authorized Facilities to be acquired. The Developer
agrees to cause the owners of real property in the CFD to execute and deliver to the City such
documents as are required to complete the transfer of Land, free and clear of all liens, taxes,
assessments, easements, leases, or other encumbrances (whether recorded or not), except for
those which the Director of Public Works determines in writing will not interfere with the intended
use of the Land or related Authorized Facilities. If the Land is within the boundaries of any
existing community facilities district (including the CFD), an assessment district, or other
financing district, then the lien of the special taxes or assessments shall be a permitted
exception to title so long as the Land, while owned by the City or other public entity, is exempt
from the special tax, assessments or similar exactions of any other financing district. Completion
of the transfer of title to Land shall be evidenced by recordation of the acceptance of thereof by
the City Council or the designee thereof.
b. Authorized Facilities Constructed on Private Land. If Authorized Facilities to be
acquired are located on privately-owned Land, the owner thereof shall retain title to the Land
and the completed Authorized Facilities until acquisition under Subsection 7(a) above, which
shall apply to such transfer. Pending the completion of such transfer and where the Developer
has received any payment for such Authorized Facilities, the Developer shall be responsible for
maintaining the land and any Authorized Facilities in good and safe condition.
c. Authorized Facilities Constructed on City Land. If the Authorized Facilities to be
acquired are on land owned by the City, the City hereby grants to the Developer a license to
enter upon such land for purposes related to the construction (and maintenance pending
acquisition) of the Authorized Facilities. The provisions for inspection and acceptance of such
Authorized Facilities otherwise provided herein shall apply.
d. Warranties; Maintenance. The Developer shall maintain each Discrete
Component in good and safe condition until the date of acceptance of the Authorized Facility of
which such Discrete Component is a part. Prior to the Acceptance Date, the Developer shall be
responsible for performing any required maintenance on any completed Discrete Component or
Authorized Facility.
On or before the Acceptance Date, the Developer shall assign to the City all of th e
Developer’s rights in any warranties, guarantees, maintenance obligations or other evidence of
contingent obligations of third persons with respect to such Authorized Facility. The Developer
shall maintain or cause to be maintained each Authorized Facility to be owned by the City
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(including the repair or replacement thereof) for a period of one year from the Acceptance Date
thereof, or, alternatively, shall provide a bond reasonably acceptable in form and substance to
the Director of Public Works for such period and for such purpose, to insure that defects, which
appear within said period will be repaired, replaced, or corrected by the Developer, at its own
cost and expense, to the satisfaction of the Director of Public Works. During any such one -year
period, the Developer shall commence to repair, replace or correct any such defects within 30
days after written notice thereof by the City to the Developer, and shall complete such repairs,
replacement or correction as soon as practicable. After such one-year period, the City shall be
responsible for maintaining such Authorized Facility. Any warranties, guarantees or other
evidences of contingent obligations of third persons with respect to the Authorized Facilities to
be acquired by the City shall be delivered to the Director of Public Works as part of the transfer
of title.
For purposes of this Section 7, after the City has accepted an Authorized Facility, the
terms “maintain” and “maintenance” mean the repair, replacement, or correction of any defects
in the Authorized Facility or Discrete Component, and shall not mean the day-to-day upkeep or
correction of normal wear and tear of the Authorized Facility or Discrete Component (such as
watering or weeding for landscape improvements, painting, graffiti removal, etc.).
8. Limitation of Liability; Excess Costs; Surplus in the Improvement Fund. The
Developer agrees that any and all obligations of the City arising out of or related to this
Agreement are special and limited obligations of the City and the City’s obligations to make any
payments hereunder are restricted entirely to the Funding Sources and shall not extend to any
other source. The Developer agrees to pay all costs of the Authorized Facilities it is constructing
that are in excess of the Funding Sources. No City Council member, City staff member,
employee or agent shall incur any liability hereunder to the Developer or any other party in their
individual capacities by reason of their actions hereunder or execution hereof.
If the construction and acquisition of all the Authorized Facilities listed on Exhibit A have
been completed and the Purchase Price (including any retentions described above) with respect
thereto has been paid, and Funding Sources remain or become available through, among other
things, the issuance of additional Bonds, the City and the Developer may designate in a
supplement hereto, Authorized Facilities (and/or Discrete Components thereof) to be
constructed and acquired with such remaining or additional Funding Sources to be selected
from the list of Authorized Facilities; provided, however, the City shall determine the use of such
funds consistent with the terms of the Fiscal Agent Agreement. If the City and the Developer do
not so designate another use in a supplement hereto, the Funding Sources will be used to
redeem Bonds.
9. Indemnification and Hold Harmless. The Developer shall take and assume all
responsibility for the work performed as part of the Authorized Facilities constructed pursuant to
this Agreement until the acceptance by the City of the respective Authorized Facilities occurs.
The Developer shall assume the defense of and indemnify and save harmless the City
and the City’s consultants, Councilmembers, officers, employees and agents, from and against
any and all claims, losses, damage, expenses and liability of every kind, nature, and description,
directly or indirectly arising from any breach by the Developer of this Agreement, the
performance of the work covered by this Agreement, from the Developer’s or any other entity’s
negligent design, engineering and/or construction of any of the Authorized Facilities acquired
from the Developer hereunder, the Developer’s non-payment under contracts between the
Developer and its consultants, engineer’s, advisors, contractors, subcontractors and suppliers in
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the provision of the Authorized Facilities, or any claims of persons employed by the Developer
or its agents to construct the Authorized Facilities, and from any and all claims, losses, damage,
expenses, and liability, howsoever the same may be caused, resulting directly, or indirectly from
any breach by the Developer of this Agreement or the nature of the work covered by this
Agreement, to the fullest extent permitted by law. In accordance with Civil Code section 2782,
nothing in this Section shall require defense or indemnification for death, bodily injury, injury to
property, or any other loss, damage or expense arising from the active or sole negligence or
willful misconduct of the City, and its consultants, and its Councilmembers, agents, servants or
independent contractors who are directly responsible to the City, or for defects in design
furnished by such persons. Moreover, nothing in this Section 9 shall apply to impose on the
Developer, or to relieve the City from, liability for active negligence of the City, or its consultants
as delineated in Civil Code Section 2782. Any relief for determining the City’s sole or active
negligence shall be determined by a court of law.
The City does not, and shall not, waive any rights against the Developer which it may
have by reason of the aforesaid hold harmless agreements because of the acceptance by the
City, or deposit with the City by the Developer of any insurance policies required by the City.
The hold harmless agreement by the Developer set forth in this Section 9 shall apply to all
damages and claims for damages of every kind suffered, or alleged to have been suffered by
reasons of any of the aforesaid operations of the Developer, or any subcontractor, regardless of
whether or not such insurance policies are determined to be applicable to any of such damages
or claims for damages.
No act by the City, or its representatives in processing or accepting any Plans, in
releasing any bond, in inspecting or accepting any work, or of any other nature, shall in any
respect relieve the Developer or anyone else from any legal responsibility, obligation or liability it
might otherwise have.
10. Representations and Covenants of the Developer.
a. Representations of the Developer. The Developer represents and warrants for the
benefit of the City as follows:
(i) Organization. The Developer is a limited liability company duly organized and
validly existing under the laws of the State of Delaware, is in compliance with all
applicable laws of the State of California, and has the power and authority to own its
properties and assets and to carry on its business as now being conducted and as now
contemplated.
(ii) Authority. The Developer has the power and authority to enter into this
Agreement, and has taken all action necessary to cause this Agreement to be executed
and delivered, and this Agreement has been duly and validly executed and delivered by
the Developer.
(iii) Binding Obligation. This Agreement is a legal, valid and binding obligation of
the Developer, enforceable against the Developer in accordance with its terms, subject
to bankruptcy and other equitable principles.
(iv) Requests for Payment. The Developer represents and warrants that (i) it will
not request payment from the City for the acquisition of any improvements that are not
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part of the Authorized Facilities, and (ii) it will diligently follow all procedures set forth in
this Agreement with respect to the Payment Requests.
(v) Plans. The Developer represents that it has obtained or will obtain approval
of the Plans for the Authorized Facilities to be acquired from the Developer hereunder
from all appropriate departments of the City. The Developer further agrees that the
Authorized Facilities to be acquired from the Developer hereunder have been or will be
constructed in full compliance with such approved plans and specifications and any
supplemental agreements (change orders) thereto, as approved in the same manner.
b. Covenants of the Developer. The Developer covenants for the benefit of the City as
follows:
(i) Financial Records. Until the final acceptance of the Authorized Facilities, the
Developer covenants to maintain proper books of record and account for the
construction of the Authorized Facilities and all costs related thereto. Such accounting
books shall be maintained in accordance with generally accepted accounting principles,
and shall be available for inspection by the City or its agent at any reasonable time
during regular business hours on reasonable notice.
(ii) Prevailing Wages. The Developer covenants that, with respect to any
contracts or subcontracts for the construction of the Authorized Facilities to be acquired
from the Developer hereunder, it will assure complete compliance with State law
pertaining to the payment of prevailing wages under the California Labor Code, including
any and all reporting requirements.
(iii) Compliance with Laws. The Developer shall not with knowledge commit,
suffer or permit any act to be done in, upon or to the Property or the Authorized Facilities
in violation of any law, ordinance, rule, regulation or order of any governmental authority
or any covenant, condition or restriction now or hereafter affecting the Property or the
Authorized Facilities.
(iv) Transfers of Ownership of any Portion of the Property. The Developer
agrees that in the event that it sells or otherwise transfers ownership of any of the
Property to another party (in each case, a “Transferee”), pursuant to and in accordance
with the provisions of Section 20 of the Development Agreement, the Developer will (i)
notify the City in writing within 30 calendar days of the transfer, identifying the legal
name of and mailing address for the Transferee, the applicable County Assessor’s
parcel number or numbers for and the acreage of the portion of the Property transferred,
(ii) notify the Transferee in writing prior to the closing of any such transfer of the
existence of the Development Agreement and this Agreement and, in general, the
Developer’s rights and obligations under the Development Agreement and hereunder
with respect to the construction of and payment for the Authorized Facilities and the
requirement of written approval from the City Manager to any assignment to the
Transferee of the Developer’s rights and obligations under the Development Agreement,
(iii) require such Transferee to comply with the obligation for continuing disclosure to the
extent provided by the Continuing Disclosure Undertaking and (iv) notify the Transferee
in writing of the existence of the CFD and the foreclosable special tax lien to enforce the
Special Tax payment obligation, and otherwise comply with any applicable provision of
Section 53341.5 of the Act.
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(v) Additional Information. The Developer agrees to cooperate with all
reasonable written requests for nonproprietary information by the City related to the
status of construction of improvements within the CFD and the anticipated completion
dates for future improvements.
(vi) Disclosure in Connection with Bond Issuance; Continuing Disclosure. The
Developer agrees to provide such information about its development, its financing plan
and such other matters as may reasonably be requested by the City, the City’s bond
counsel, the City’s disclosure counsel or the City’s bond underwriter for the preparation
and dissemination of an official statement pertaining to any series of Bonds. The
Developer agrees to comply with all of its obligations under the Continuing Disclosure
Undertaking.
(vii) Compliance With Applicable Law. The Developer accepts responsibility for
and shall be responsible for identification of and compliance with all applicable laws
pertaining to the construction and installation of the Authorized Facilities and the contract
or contracts pertaining thereto, including but not limited to such applicable laws as may
be contained in the California Labor Code, the California Public Contract Code, and the
California Government Code. The Developer will neither seek to hold or hold the City
liable for, and will hold the City harmless with respect to, any consequences of any
failure by the Developer to correctly determine the applicability of any such requirements
to any contract it enters into. This paragraph shall apply with respect to any
enforcement action, whether public or private, and whether brought by a public
enforcement agency or by private civil litigation, against the Developer, the City or the
CFD, or any of them, with respect to the matters addressed by this paragraph.
11. Limitation. Nothing in this Agreement shall be construed as affecting the Developer’s
or the City’s duty to perform their respective obligations under any other agreements, land use
regulations, or subdivision requirements related to the Property, which obligations (if any) are
and shall remain independent of the Developer’s and the City’s right and obligations under this
Agreement.
12. Cooperation. The City and Developer agree to cooperate with respect to the
completion of the financing of the Authorized Facilities through the levy of Special Taxes and
issuance of one or more series of Bonds, as set forth in the Development Agreement and this
Agreement. The City and the Developer agree to meet in good faith to resolve any differences
on future matters which are not specifically covered by the Development Agreement or this
Agreement.
13. General Standard of Reasonableness. Any provision of this Agreement which
requires the consent, approval or acceptance of either party hereto or any of their respective
employees, officers, or agents shall be deemed to require that the consent, approval, or
acceptance not be unreasonably withheld or delayed, unless the provision expressly
incorporates a different standard. The foregoing provision shall not apply to provisions in this
Agreement which provide for decisions to be in the sole discretion of the party making the
decision.
14. Audit. The Director of Public Works shall have the right, during normal business
hours and upon the giving of ten days written notice to the Developer, to review all books and
records of the Developer pertaining to costs and expenses incurred by the Developer in
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constructing any of the Authorized Facilities and any bids taken or received for the construction
thereof or materials therefor.
15. Attorney’s Fees. In the event of the bringing of any action or suit by either party
against the other arising out of this Agreement, the party in whose favor final judgment shall be
entered shall be entitled to recover from the other party all costs and expenses of suit, including
reasonable attorneys’ fees.
16. Notices. Any notice, payment or instrument required or permitted by this Agreement
to be give or delivered to either party shall be deemed to have been received when personally
delivered or one week following deposit of the same in any United States Post Office, registered
or certified mail, postage prepaid, addressed as follows:
Developer: Dublin Crossing LLC
500 La Gonda Way, Suite 100
Danville, CA 94526
Attn: Project Manager
City: City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attn: City Manager
Each party may change its address or addresses for delivery of notice by delivering
written notice of such change of address to the other party.
17. Severability. If any part of this Agreement is held to be illegal or unenforceable by a
court of competent jurisdiction, the remainder of this Agreement shall be given effect to the
fullest extent reasonably possible.
18. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the successors and assigns of the parties hereto. This Agreement may not be
assigned by the Developer without the prior written consent of the City, set forth in an
assignment agreement required by Section 20 of the Development Agreement, which consent
shall not be unreasonably withheld or delayed. In connection with any such consent of the City,
the City may condition its consent upon the acceptability of the financial condition of the
proposed assignee and upon any other factor which the City deems relevant in the
circumstances.
19. Waiver. Failure by a party to insist upon the strict performance of any of the
provisions of this Agreement by the other party, or the failure by a party to exercise its rights
upon the default of the other party, shall not constitute a waiver of such party‘s right to insist and
demand strict compliance by the other party with the terms of this Agreement thereafter.
20. Merger. No other agreement, statement or promise made by any party or any
employee, officer or agent of any party with respect to any matters covered hereby that is not in
writing and signed by all the parties to this Agreement shall be binding.
21. Counterparts. This Agreement may be executed in counterparts, each of which shall
be deemed an original.
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22. Amendments. Amendments to this Agreement shall be made only by written
instrument executed by each of the parties hereto.
23. Governing Law. The provisions of this Agreement shall be governed by the laws of
the State.
SIGNATURES ON FOLLOWING PAGE
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first-above written.
CITY OF DUBLIN DUBLIN CROSSING LLC,
a Delaware limited liability company
By:________________________________ By: BrookCal Dublin LLC,
City Manager a Delaware limited liability company
Its: Member
ATTEST:
By: ___________________________
(Signature)
_________________________________
City Clerk ___________________________
(Print Name)
APPROVED AS TO FORM: ___________________________
(Title)
_________________________________ By: ___________________________
City Attorney (Signature)
___________________________
(Print Name)
___________________________
(Title)
By: SPIC Dublin LLC,
a Delaware limited liability company
Its: Member
By: Standard Pacific Investment Corp.,
A Delaware corporation
Its: Member
By: _______________________
(Signature)
_______________________
(Print Name)
_______________________
(Title)
By: ________________________
(Signature)
________________________
(Print Name)
________________________
(Title)
B
-1
A-1
EXHIBIT A
AUTHORIZED FACILITIES AND AUTHORIZED FEES
A. City Public Capital Improvements
1. Backbone Storm Drainage
2. Backbone Street Improvements
3. Master Landscaping, Fencing and Signage on Public Property, Including
Public Easements and Rights-of-Way
B. City-Imposed Impact Fees
1. Fire Impact Fees
2. Freeway Interchange Fees
3. Public Art In-Lieu Fees
4. Residential Traffic Impact Fees – Eastern Dublin Fee
5. Development Agreement Fees:
a. ACSPA Contribution
b. Iron Horse Trail Bridge Contribution
c. Park Construction Payment
C. Dublin San Ramon Services District (DSRSD)
1. Capital Improvements
a. Backbone Sanitary Sewer
b. Backbone Domestic Water
c. Backbone Reclaimed Water
2. DSRSD Impact Fees
a. Water System Connection Fees
b. Water Meter Assembly Fees
c. Wastewater Impact Fees
D. Zone 7
1. Capital Improvements
a. Backbone Storm Drainage
2. Zone 7 Impact Fees
a. Water Connection Fees
b. Drainage Assessment Fees (Impervious Surface)
B
-2
A-2
Notwithstanding the foregoing lists on page A-1 hereof, in the event that Dublin Crossing,
LLC, or any landowner of any portion of the land within CFD No. 2015-1 which is responsible for
the construction of any of the listed improvements or payment of any of the listed impact fees
enters into a written agreement with the City, DSRSD or Zone 7, as the case may be, to move all or
any portion of any of the improvements or impact fees listed above from one category to the other,
the subject improvements or impact fees shall remain eligible for financing by CFD No. 2015-1
without the requirement of City Council action to authorize such change. Without limiting the
generality of the foregoing, if, for example, the City and Dublin Crossing, LLC (the “Parties”),
enter into a written agreement (including but not limited to an agreement amending the
Development Agreement between the Parties) pursuant to which the Parties agree that Dublin
Crossing, LLC, will construct the City park referenced as Item B(5)(c) above, then that City park
shall be eligible for financing by CFD No. 2015-1 as a City Public Capital Improvement.
Similarly, a written agreement to add any additional improvements or impact fees to those
listed shall make such improvements or impact fees eligible for financing by CFD No. 2015-1, and
a written agreement to delete any improvements or impact fees from those listed shall make such
improvements or impact fees ineligible for such financing, in each case without the requirement of
City Council action to authorize such change.
B-1
EXHIBIT B
FORM OF PAYMENT REQUEST
City of Dublin
Community Facilities District No. 2015-1 (Dublin Crossing)
Pursuant to the Acquisition Agreement, dated as of July 18, 2017 (the “Acquisition
Ag reement”), by and between the City of Dublin (the “City”) and Dublin Crossing LLC (the
“Developer”), the Developer hereby requests (a) payment of the Purchase Price of the
Authorized Facilities and/or the Discrete Components described in Attachment 1 hereto or (b)
reimbursement for the Authorized Fees described in Attachment 1 hereto. Capitalized terms not
otherwise defined herein shall have the meanings ascribed thereto in the Acquisition Agreement.
In connection with this Payment Request, the undersigned hereby represents and
warrants to the City as follows:
For Authorized Facilities or Discrete Components:
1. The undersigned is an authorized representative of the Developer, qualified to
execute this request for payment on behalf of the Developer and knowledgeable as to the
matters set forth herein.
2. The Developer has submitted or submits herewith to the Director of Public Works
as-built drawings or similar Plans for each of the Authorized Facilities and/or Discrete
Components described in Attachment 1, and such drawings or Plans, as applicable, are true,
correct and complete representations of the Authorized Facilities and/or Discrete Components
listed in Attachment 1.
3. Each of the Authorized Facilities and Discrete Components described in
Attachment 1 has been constructed in accordance with the Plans therefor, and in accordance
with all applicable City standards and the requirements of the Acquisition Agreement, and the as-
built drawings or similar Plans referenced in paragraph 2 above, and none of the Authorized
Facilities or Discrete Components described in Attachment 1 has been the subject of any prior
Payment Request.
4. The Developer has submitted or submits herewith to the Director of Public Works
soils reports and certifications as appropriate with respect to each Authorized Facility or
Discrete Component described in Attachment 1.
5. The true and correct Actual Cost of each of the Authorized Facilities and/or
Discrete Components described in Attachment 1 is set forth in Attachment 1.
6. The Developer has submitted or submits herewith to the Director of Public Works a
copy of each construction contract for each of the Authorized Facilities and/or Discrete
Components described in Attachment 1, a copy of the bid notice for each such contract and a
copy of each change order applicable to each such contract, together with the written approval
of each such change order by the Director of Public Works of the City.
7. The Developer has submitted or submits herewith to the Director of Public Works a
letter from the Developer evaluating invoices, receipts, worksheets and other evidence of costs
for each of the Authorized Facilities and/or Discrete Components described in Attachment 1,
B-2
which are in sufficient detail to allow the Director of Public Works to verify the Actual Cost of
such Authorized Facilities and Discrete Components and, if any of such invoices, receipts,
worksheets or other evidence of costs include costs for facilities other than such Authorized
Facilities and/or Discrete Components, the Developer has submitted or submits herewith to the
Director of Public Works a written description as to how the items and amounts in such invoices,
receipts, worksheets and other evidence of costs have been allocated among such other
Authorized Facilities and/or Discrete Components, together with evidence that such allocation
is appropriate, correct and reasonable.
8. The Developer has submitted or submits herewith to the Director of Public Works
evidence that each of the invoices, receipts, worksheets and other evidence of costs referred to
in the preceding paragraph, has been paid in full, which evidence is in the form of copies of
cancelled checks or such other form as the Director of Public Works of the City has approved in
writing.
9. There has not been filed with or served upon the Developer notice of any lien,
right to lien or attachment upon, or claim affecting the right to receive, the payment of the
Purchase Price for each of the Authorized Facilities and/or Discrete Components described in
Attachment 1 which has not been released or will not be released simultaneously with the
payment of such obligation, other than materialmen’s or mechanics’ liens accruing by operation
of law.
10. The Developer has submitted or submits herewith to the Director of Public Works
copies of unconditional lien releases from all contractors, subcontractors and materialmen for all
work with respect to each of the Authorized Facilities and/or Discrete Components described in
Attachment 1, together with the written approval of each such lien release by the City Attorney of
the City.
11. The representations and warranties of the Developer set forth in Section 10(a) of
the Acquisition Agreement are true and correct on and as of the date hereof with the same force
and effect as if made on and as of the date hereof.
12. The Developer represents that it has satisfied the conditions specified in the
Acquisition Agreement for the payment of the Purchase Price of Authorized Facilities or Discrete
Components.
13. The Developer represents and warrants that, as of the date hereof, there is
not present on, under or in any of the Authorized Facilities and/or Discrete Components
described in Attachment 1, or any portion thereof, any hazardous materials, except for (i) any
t ypes or amounts that do not require remediation or mitigation under federal, state or local laws,
ordinances, regulations, rules or decisions, (ii) those that have been remediated or
mitigated in full compliance with applicable federal, state or local laws, ordinances,
regulations, rules or decisions, (iii) those with respect to which ongoing remediation or
mitigation is being performed in full compliance with applicable federal, state or local laws,
ordinances, regulations, rules or decisions, (iv) any types or amounts that do not present a
human health risk or hazard to the public, and (iv) if such Authorized Facilities and/or Discrete
Components described in Attachment 1 were, at the time of commencement of the acquisition,
construction and installation of such Authorized Facilities and/or Discrete Components,
propert y of the City and, from such time of commencement through and including the date
hereof, remained property of the City, those hazardous substances that were present on, under
or in such Authorized Facilities and/or Discrete Components at such time of commencement.
B-3
For Authorized Fees:
1. The undersigned is an authorized representative of the Developer, qualified to
executed this request for payment on behalf of the Developer and knowledgeable as to the
matters set forth herein.
2. The identity and amount of the Authorized Fees are described in Attachment 1.
3. The Developer has submitted or submits herewith to the Director of Public Works
evidence that Authorized Fees referred to in the preceding paragraph have been paid in full,
which evidence is in the form of copies of cancelled checks or such other form as the Director of
Public Works has approved in writing.
4. The representations and warranties of the Developer in Section 10(a) of the
Acquisition Agreement are true and correct on and as of the date hereof with the same force and
effect as if made on and as of the date hereof.
5. The Developer represents that it has satisfied the conditions specified in the
Acquisition Agreement for the reimbursement of Authorized Fees by the City.
SIGNATURES ON FOLLOWING PAGE
B-4
I hereby declare under penalty of perjury that the above representations and
warranties are true and correct.
DUBLIN CROSSING LLC,
a Delaware limited liability company
By:________________________________
Name: _____________________________
Title:_______________________________
By:________________________________
Name: _____________________________
Title:_______________________________
B
-5
B-5
APPROVAL BY THE DIRECTOR OF PUBLIC WORKS
I, the undersigned Director of Public Works of the City of Dublin, hereby certify as
follows:
(i) Dublin Crossing LLC (the “Developer”), has requested payment of the Purchase
Price of the Authorized Facilities and/or the Discrete Components or reimbursement for the
Authorized Fees described in Attachment 1 hereto. All references hereafter in this certification
to “the Authorized Facilities and/or the Discrete Components” shall be deemed to refer to
those Authorized Facilities and/or Discrete Components or those Authorized Fees described
in Attachment 1 hereto.
(ii) I or persons working under my supervision have confirmed that each of the
Authorized Facilities and/or Discrete Components is complete in accordance with the Plans.
(iii) The Developer has provided me with satisfactory documentation to demonstrate
how Actual Cost for the subject Authorized Facilities and/or Discrete Components was
calculated, to establish that the Authorized Facilities and Discrete Components are consistent
with those presented in the documentation of Actual Cost, and to establish that the
Authorized Fees described in Attachment 1 hereto, if any, have been paid by the Developer.
(iv) The Actual Cost of the Authorized Facilities and Discrete Components and the
amount of Authorized Fees described in Attachment 1 hereto, if any, have been reviewed,
verified and approved by me or persons working under my supervision under the terms
specified in Section 5 of the Acquisition Agreement. As such, Payment of the Purchase Price
of each of the Authorized Facilities and/or Discrete Components and reimbursement to the
Developer for the amount of Authorized Fees described in Attachment 1 hereto is hereby
approved.
Capitalized terms not otherwise defined herein shall have the meanings ascribed thereto
in the Acquisition Agreement, dated as of July 18, 2017 (the “Acquisition Agreement”), by and
between the City of Dublin (the “City”) and the Developer.
Dated: _______________________ __________________________________
Gary Huisingh
Director of Public Works
City of Dublin
B
-6
B-6
ATTACHMENT 1
Authorized Facility,
Discrete Component
or Authorized Fees
Actual
Cost
Purchase
Price
Total
RESOLUTION NO. __-17
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
*********
AUTHORIZING EXECUTION OF A JOINT COMMUNITY FACILITIES
AGREEMENT BY AND AMONG THE CITY OF DUBLIN, ZONE 7 OF THE
ALAMEDA COUNTY FLOOD CONTROL AND WATER CONSERVATION
DISTRICT AND DUBLIN CROSSING, LLC
WHEREAS, the City of Dublin (the “City”) has conducted proceedings under the Mello-
Roos Community Facilities Act of 1982 to establish the City of Dublin Community Facilities
District No. 2015-1 (Dublin Crossing) (the “CFD”) and to authorize the levy and collection of a
special tax (the “Special Tax”) upon the taxable property in the CFD and intends to authorize the
issuance and sale of taxable or tax-exempt special tax bonds of the CFD (the “Bonds”) to finance
certain public capital facilities and certain capital facility impact fees; and
WHEREAS, the public capital facilities authorized to be financed include certain capital
facilities (the “Zone 7 Facilities”) to be owned and operated by Zone 7 of the Alameda County
Flood Control and Water Conservation District (“Zone 7”), and the authorized capital facility
impact fees to be financed include certain Zone 7 fees (the “Zone 7 Fees”) as described in the
proposed Joint Community Facilities Agreement (the “Joint Community Facilities Agreement”),
by and among the City, Zone 7 and Dublin Crossing, LLC (the “Developer”), a copy of which
proposed agreement is attached hereto as Exhibit A; and
WHEREAS, the agreement provides the terms and conditions pursuant to which
proceeds of sale of the Bonds and proceeds of the Special Tax may be utilized to finance the cost
of the Zone 7 Facilities, among other capital facilities, upon completion, and to reimburse the
Developer for Zone 7 Fees, among others capital facility impact fees, which have been paid by
the Developer.
NOW, THEREFORE, BE IT RESOLVED THAT the City Council of the City of
Dublin hereby finds, determines and resolves as follows:
1. The Joint Community Facilities Agreement will be beneficial to the residents and
customers of the CFD and Zone 7.
2. The Joint Community Facilities Agreement, in the form attached hereto as Exhibit A,
is hereby approved, and the City Manager is hereby authorized to make non-
substantive changes thereto, as approved by the City Attorney, and hereby further
authorized and directed to execute said agreement on behalf of the City.
PASSED, APPROVED AND ADOPTED this 18th day of July, 2017, by the following vote:
AYES: Council Members __________________________________________
NOES: Council Members __________________________________________
ABSENT: Council Members __________________________________________
ABSTAIN Council Members __________________________________________
_______________________________________
Mayor
ATTEST:
______________________________
City Clerk
JOINT COMMUNITY FACILITIES AGREEMENT
by and among
ZONE 7 OF THE ALAMEDA COUNTY FLOOD CONTROL
AND WATER CONSERVATION DISTRICT,
CITY OF DUBLIN,
and
DUBLIN CROSSING, LLC
relating to
CITY OF DUBLIN
COMMUNITY FACILITIES DISTRICT NO. 2015-1
(DUBLIN CROSSING)
1
JOINT COMMUNITY FACILITIES AGREEMENT
THIS JOINT COMMUNITY FACILITIES AGREEMENT (the “Agreement”) is entered
into effective as of _________, 2017, by and among ZONE 7 of the Alameda County Flood
Control and Water Conservation District (“Zone 7”), the CITY OF DUBLIN (the “City”), and
DUBLIN CROSSING, LLC, a Delaware limited liability company (the “Company”), and relates
to the financing by the City of Dublin Community Facilities District No. 2015-1 (Dublin
Crossing) (the “CFD”) of certain capital facilities, which upon completion are to be transferred
to and thereafter owned and operated by Zone 7 (the “Zone 7 Facilities”) from proceeds of
bonds issued by, and special taxes collected within the boundaries of, the CFD.
RECITALS:
A. The Company is the master developer of the land shown as Improvement Area No. 1
and, upon acquisition, the land shown as Future Annexation Area on the boundary map attached
hereto as Exhibit “A” (herein, collectively, the “Property”), and by this reference incorporated
herein, which is located in the City of Dublin. Improvement Area No. 1 is located within the
boundaries of the CFD. The Future Annexation Area will be annexed into the boundaries of the
CFD as the property is acquired by the Company. The CFD will ultimately c onsist of five
improvement areas (each an “Improvement Area”) upon annexation of all of the Future
Annexation Area. This Agreement applies fully to each and every Improvement Area, whether
in existence as of the date hereof or as created in the future.
B. The Zone 7 Facilities are described on Exhibit “B” hereto, and by this reference
incorporated herein.
C. Pursuant to the Mello-Roos Community Facilities Act of 1982, as amended,
consisting of Section 53311 et seq. of the California Government Code (the “Act”), the City has
established the CFD in order to finance certain public facilities and improvements, including the
ZONE 7 Facilities.
D. Subsection (a) of Section 53316.2 of the Act provides that a community facilities
district may finance facilities to be owned or operated by a public agency other than the agency
that created the district only pursuant to a joint community facilities agreement adopted pursuant
to said section.
E. Subsection (b) of Section 53316.2 of the Act provides that at any time prior to the
adoption of the resolution issuing bonds (to finance the Zone 7 Facilities) pursuant to Section
53356 of the Act, the legislative bodies of two or more local agencies may enter into a joint
communities facilities agreement pursuant to said section and Sections 53316.4 and 53316.6 of
the Act to exercise any power authorized by the Act with respect to the community facilities
district if the legislative body of each entity adopts a resolution declaring that the joint agreement
would be beneficial to the residents of that entity.
F. The City Council of the City has formed the CFD, designating Improvement Area
No. 1, identifying the Future Annexation Area, and authorizing the financing of various
facilities, including the Zone 7 Facilities. The CFD and each Improvement Area therein is
authorized to finance, among other things, the Zone 7 Facilities.
2
G. The provision of the Zone 7 Facilities is necessitated by the development of the
Property, and the Parties hereto find and determine that the residents residing within the
boundaries of the CFD (including each Improvement Area therein) will be benefited by the Zone
7 Facilities and that this Agreement is beneficial to the interests of such residents.
H. The City has sole discretion and responsibility for the administration of the CFD.
I. The City is authorized by Sections 53313 and 53313.5 of the Act to assist in the
financing of the acquisition and/or construction of the Zone 7 Facilities. This Agreement
constitutes a joint community facilities agreement, within the meaning of Section 53316.2 of the
Act, by and among Zone 7, the Company, and the City, pursuant to which the CFD is authorized
to finance the acquisition and/or construction of all or a portion of the Zone 7 Facilities.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth
herein, the Parties hereto agree as follows:
1. Recitals. Each of the above recitals is incorporated herein and is true and correct.
2. Definitions. Unless the context clearly otherwise requires, the terms defined in this
Section shall, for all purposes of this Agreement, including the Recitals, have the meanings
herein specified.
(a) “Acquisition Agreement” means that certain Acquisition Agreement
Relating to City of Dublin Community Facilities District No. 2015-1 (Dublin Crossing), by and
between the City and the Company, as it may be amended from time to time.
(b) “Act” shall have the meaning given such term in Recital C.
(c) “Bond Proceeds” or “Proceeds of the Bonds” means those net funds
generated by the sale of any series of Bonds, and investment earnings thereon.
(d) “Bonds” means one or more series of bonds, or other securities, issued by
the CFD on behalf of any Improvement Area.
(e) “Facilities Financing Fund” means the fund by any name created to hold
PayGo Proceeds.
(f) “Fiscal Agent Agreement” means a Fiscal Agent Agreement, Resolution,
Resolution Supplement, Indenture of Trust, or other equivalent document(s) providing for the
issuance of a series of Bonds.
(g) “Improvement Area” shall have the meaning given such term in Recital A.
(h) “Improvement Fund” means the fund by any name created pursuant to a
Fiscal Agent Agreement to hold Bond Proceeds for the financing of ZONE 7 Facilities.
3
(i) “Party” or “Parties” means any one or all of the parties to this Agreement.
(j) “PayGo Proceeds” means the Special Taxes levied and collected in the
CFD and each Improvement Area that are available to directly fund the Zone 7 Facilities.
(k) “Property” shall have the meaning set forth in Recital A.
(l) “Rate and Method” means the Rate and Method of Apportionment of the
Special Tax for each Improvement Area authorizing the levy and collection of Special Taxes
within the respective Improvement Area of the CFD pursuant to proceedings undertaken for the
formation of the CFD pursuant to the Act.
(m) “Special Taxes” means the special taxes authorized to be levied and
collected within the CFD pursuant to a Rate and Method.
(n) “State” means the State of California.
(o) “Zone 7 Facilities” means those water and storm drain facilities listed on
Exhibit “B” hereto.
3. Formation of the CFD. The City has established the CFD under the terms of the Act,
and authorized each Improvement Area to finance, among other things, the Zone 7 Facilities.
4. Sale of Bonds and Use of Proceeds; PayGo Proceeds. The City may from time to
time issue one or more series of Bonds in one or more Improvement Areas and reserve a portion
of the Bond Proceeds along with PayGo Proceeds to finance, among other things, the costs of the
Zone 7 Facilities upon completion and reimbursement of Zone 7 Fees which have been paid.
Bond Proceeds will be deposited into the Improvement Fund. PayGo Proceeds will be deposited
in a subaccount of the Improvement Fund. Bond Proceeds on deposit in the Improvement Fund
and PayGo Proceeds on deposit in the subaccount of the Improvement Fund may be applied by
the City for the costs of the Zone 7 Facilities and the reimbursement of Zone 7 Fees in the
manner, and subject to the restrictions, set forth in the Acquisition Agreement and the Fiscal
Agent Agreement, if any.
5. Disbursements for Zone 7 Facilities. Disbursements from the Improvement Fund and
from the subaccount of the Improvement Fund into which PayGo Proceeds are deposited shall be
governed by the Acquisition Agreement. However, before making any payment for an Zone 7
Facility (or discrete component thereof) from the Improvement Fund or the subaccount of the
Improvement Fund into which the PayGo Proceeds are deposited, the City shall be satisfied that
the Zone 7 Facility or discrete component thereof to be financed has been inspected and
approved by Zone 7 as set forth in Section 6 of this Agreement.
6. Inspection and Approval; Ownership of Zone 7 Facilities. Zone 7 shall cause
inspections to be made during the construction of the Zone 7 Facilities in accordance with its
customary procedures for construction projects of a similar nature. Upon completion of
construction of the Zone 7 Facilities, Zone 7 shall accept dedication of the Zone 7 Facilities in
accordance with its customary procedures, and shall accept ownership, and responsibility for
operation of the Zone 7 Facilities. Notwithstanding the foregoing, formal acceptance of the Zone
4
7 Facilities is not a condition to the reimbursement of the Company for the Reasonable Costs and
Expenses of the Zone 7 Facilities, and the Zone 7 Facilities may be financed in discrete
components. Once acquired by Zone 7, the Zone 7 Facilities shall be and remain the property of
Zone 7 and Zone 7 shall assume all ongoing maintenance responsibilities with respect to the
Zone 7 Facilities.
7. Amendment. This Agreement may be amended at any time but only in writing signed
by each Party hereto.
8. Entire Agreement. This Agreement contains the entire agreement between the Parties
with respect to the matters provided for herein and supersedes all prior agreements and
negotiations between the Parties with respect to the subject matter of this Agreement.
9. Notices. Any notice, payment or instrument required or permitted by this Agreement
to be given or delivered to any Party shall be deemed to have been received when personally
delivered or seventy-two hours following deposit of the same in any United States Post Office in
California, registered or certified, postage prepaid, addressed as follows:
City: City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attn: City Manager
Zone 7: Zone 7 of the Alameda County Flood Control
and Water Conservation District
100 North Canyon Parkway
Livermore, California 94551
Attn: General Manager
Company: Dublin Crossing, LLC
500 La Gonda Way, Suite 100
Danville, CA 94526
Attn: Gregory Glenn
A Party may change its address for delivery of notice by delivering written notice of such change
of address to the other Parties hereto.
10. Exhibits. All exhibits attached hereto are incorporated into this Agreement by
reference.
11. Severability. If any part of this Agreement is held to be illegal or unenforceable by a
court of competent jurisdiction, the remainder of this Agreement shall be given effect to the
fullest extent reasonably possible.
12. Governing Law. This Agreement and any dispute arising hereunder shall be
governed by and interpreted in accordance with the laws of the State of California.
5
13. Waiver. Failure by a Party to insist upon the strict performance of any of the
provisions of this Agreement by the other Parties hereto, or the failure by a Party to exercise its
rights upon the default of another Party, shall not constitute a waiver of such Party’s right to
insist and demand strict compliance by such other Parties with the terms of this Agreement
thereafter.
14. No Third Party Beneficiaries. No person or entity other than the CFD shall be
deemed to be a third party beneficiary hereof, and nothing in this Agreement (either express or
implied) is intended to confer upon any person or entity, other than the Zone 7, the City, the
CFD, and the Company (and their respective successors and assigns, exclusive of individual
homebuyers), any rights, remedies, obligations , or liabilities under or by reason of this
Agreement.
15. Singular and Plural; Gender. As used herein, the singular of any word includes the
plural, and terms in the masculine gender shall include the feminine.
16. Counterparts. This Agreement may be executed in counterparts, each of which shall
be deemed an original, but all of which shall constitute but one instrument.
[signature pages follows]
6
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and
year written above.
CITY OF DUBLIN
By:
Its:
ATTEST:
By:
APPROVED AS TO FORM:
City Attorney of the City of Dublin
ZONE 7 OF THE ALAMEDA COUNTY FLOOD
CONTROL AND WATER CONSERVATION
DISTRICT
By: __________________________________
Its: ___________________________________
ATTEST:
By:
Secretary of the Board of Directors
APPROVED AS TO FORM:
Legal Counsel, Zone 7
[signatures continued on next page]
7
DUBLIN CROSSING, LLC,
a Delaware limited liability company
By: BrookCal Dublin LLC,
a Delaware limited liability company
Its: Member
By: __________________________
Name: ________________________
Title: _________________________
By: __________________________
Name: ________________________
Title: _________________________
By: SPIC Dublin LLC,
a Delaware limited liability company
Its: Member
By: Standard Pacific Investment Corp.,
a Delaware corporation
Its: Member
By: _______________________
Name: _____________________
Title: ______________________
By: _______________________
Name: _____________________
Title: ______________________
A-1
EXHIBIT A
MAP OF PROPERTY IN THE CFD
B-1
EXHIBIT B
LIST OF ZONE 7 FACILITIES
Facilities to be owned by Zone 7 constructed in connection with the development of the
Property, and all costs of site acquisition, planning, design, engineering, legal services, materials
testing, coordination, surveying, construction staking, construction inspection and any and all
appurtenant facilities and appurtenant work relating thereto, including, but not limited to:
Backbone Storm Drainage improvements (including, but not limited to, mainlines,
laterals, catch basins, junction structures, manholes, and local depressions).
Water improvements financed by the Water Connection Fee for each connection in the
CFD.
Drainage improvements financed by the Drainage Assessment Fee (Impervious Surface)
for each connection in the CFD.
Notwithstanding the foregoing list, in the event that Dublin Crossing, LLC, or any landowner of
any portion of the land within CFD No. 2015-1 which is responsible for the construction of any
of the listed improvements or payment of any of the listed impact fees enters into a written
agreement with Zone 7 to move all or any portion of any of the improvements or impact fees
listed above from one category to the other, the subject improvements or impact fees shall
remain eligible for financing by CFD No. 2015-1 without the requirement of City Council OR
Zone 7 action to authorize such change. Without limiting the generality of the foregoing, if, for
example, Zone 7 and Dublin Crossing, LLC (the “Parties”), enter into a written agreement
pursuant to which the Parties agree that Dublin Crossing, LLC, will construct the drainage
improvements that would otherwise be paid by the drainage assessment fee, then that drainage
improvements shall be eligible for financing by CFD No. 2015-1 as an improvement rather than
a fee.
Similarly, a written agreement to add any additional improvements or impact fees to those listed
shall make such improvements or impact fees eligible for financing by CFD No. 2015-1, and a
written agreement to delete any improvements or impact fees from those listed shall make such
improvements or impact fees ineligible for such financing, in each case without the requirement
of Zone 7 action to authorize such change.