HomeMy WebLinkAbout14 COMM FACILITIES DISTRICT 06-01 08-07-07_. £~ ,~
1
AGENDA REPORT
Agenda Item 14
Reviewed:
City Manager
Finance Director
MEETING DATE:. August 7, 2007
TO: William A. Huston, City Manager
FROM: Ronald A. Nault, Finance Director
SUBJECT: City of Tustin Resolution No. 07-62 Authorizing the Issuance of Not to
Exceed $60 Million Aggregate Principal Amount of Special Tax Bonds
for Tustin Community Facilities District No. 06-1
SUMMARY:
This is the final stage in completing the Community Facilities District formation and bond
issuance for the Columbus Villages at Tustin Legacy. Resolution No. 07-62 authorizes the
issuance of $60 million of CFD bonds and executes all documents including the Indenture and
Preliminary Official Statement.
RECOMMENDATION:
1. Adopt Resolution No. 07-62 Authorizing the Issuance of Not to Exceed $60 Million
Aggregate Principal Amount of City of Tustin Community Facilities District No. 06-1
(Tustin Legacy/Columbus Villages) Special Tax Bonds and Authorizing the Mayor, City
Manager, City Attorney and Finance Director to execute the Indenture between the
District and Union Bank as Trustee, an Acquisition and Funding Agreement between the
District and Columbus Villages, a Bond Purchase Agreement between the District and
CitiGroup Global Markets, Inc., a Continuing Disclosure Agreement between the District
and Union Bank as Dissemination Agent, the preparation of an Official Statement, and
other matters related to the District and bond issue.
2. Adopt Resolution No. 07-64 Authorizing the Execution and Delivery of an Acquisition and
Funding Agreement.
FISCAL IMPACT:
All expenses relating to the bond issuance and administration will be recovered from annual
assessments on property within the district.
DISCUSSION:
The recommended actions will finalize the CFD formation process and allow for the issuance of
bonds that will provide the cash flow for the Legacy backbone infrastructure projects.
We are currently on schedule to close this bond issue during early September. Long term
interest rates have increased somewhat with modest daily fluctuations. We expect these issues
will price very aggressively as demand is high and supply is low for these types of securities.
Staff is available to answer questions of the Council during the meeting.
Attachments:
1. Preliminary Official Statement
2. Indenture
3. Continuing Disclosure Agreement
4. Authorizing Resolution
5. Acquisition Agreement
6. Acquisition Resolution
CommunityFacilitiesDistrict06-1 Resolution07-62AuthorizingTelssuanceOfSpecialTaxBonds. doc
Finance Director
PRELIMINARY OFFICIAL STATEMENT DATED AUGUST 9, 2007
NEW ISSUE -BOOK-ENTRY ONLY NO RATINGS
In the opinion ofOrricl~ Herrington & Sutcliffe LL,P, Bond Counsel to the Distract (defined below), based upon an analysis of existing laws, regulations, rulings and court decisions, and
assuming, among other matters, the accuracy of certain representations and compliance with certain covenants, interest on the Series 2007 Bonds (defined below) is excluded from gross income for
federal income tax purposes under Section 103 of the Internal Revenue Code of1986 and is exemptfrom State of California personal income taxes. In the further opinion of Bond Counsel interest on
the Senses 2007 Bonds is not a specific preference item for purposes of the federal inc&vidual or corporate alternative minimum taxes, although Bond Counsel observes that such interest is included in
adjusted current earnings when calculating corporate alternative minimum taxable income. Bond Counsel expresses no opiraon regarc&ng any other tax consequences related to the ownersYdp or
disposition of, or the accrual or receiptofintereston, the Series 2007 Bonds. See "CONCLUDINGINFORIul4TION-Tax Exemption"herein.
STATE OF CALIFORNIA
$59,855,000
CITY OF TUSTIN
COMMUNITY FACILITIES DISTRICT NO. 06-1
(TUSTIN LEGACY/COLUMBUS VILLAGES)
SPECIAL TAX BONDS, SERIES 2007 A
Dated: Date of Delivery
COUNTY OF ORANGE
Due: September 1, as shown below
The City of Tustin Community Facilities District No. 06-1 (Tustin Legacy/Columbus Villages) Special Tax Bonds, Series 2007 A (the "Series 2007 Bonds' are being
issued under the Mello-Roos Community Facilities Act of 1982 (the "Acf~ and the Indenture, dated as of 1, 2007 (the "Indenture', by and between City of Tustin
Community Facilities District No. 06-1 (Tustin Legacy/Columbus Villages) (the "Districf~ and Union Bank of California, N.A., as trustee (the "Trustee', and are payable from the Net
Special Tax Revenues (as defined herein) derived from the Special Taxes (as defined herein) levied on property within the District according to the rate and method of apportionrnent of
the Special Taxes approved by the qualified electors of the District and by the City Council of the City of Tustin, California (the "Cit}~~. Pursuant to the Indenture, additional bonds
("Additional Bonds' may be issued by the District on a parity with the Series 2007 Bonds for the purposes set forth in the Indenture and as further described herein. The Series 2007
Bonds and any Additional Bonds are collectively referred to as the `Bonds."
The Series 2007 Bonds are being issued to provide funds (a) to pay the cost and expense of acquisition and construction of certain public facilities necessary for the
development of the District, (b) to pay capitalized interest on the Series 2007 Bonds to September 1, 2008, (c) to fund a reserve fund for the Series 2007 Bonds, (d) to pay administrative
expenses of the District in connection with the Series 2007 Bonds and (e) to pay the costs of issuing the Series 2007 Bonds. See "ESTIMATED SOURCES AND USES OF FUNDS"
herein.
The Series 2007 Bonds are being issued in fully registered book-entry only form, initially registered in the name of Cede & Co., as nominee of The Depository Trust
Company, New York, New York (`T)TC'~. Interest on the Series 2007 Bonds is payable semiannually on March 1 and September 1 of each year, commencing on March 1, 2008.
Purchasers will not receive certificates representing their interest in the Series 2007 Bonds. Individual purchases will be in principal amounts of $5,000 or integral multiples thereof.
Principal of and interest and premium, if any, on the Series 2007 Bonds will be paid by the Trustee to DTC for subsequent disbursement to DTC Participants who are obligated to remit
such payments to the beneficial owners of the Series 2007 Bonds. See Appendix Ghereto - `Book-Entry Only System."
The Series 2007 Bonds are subject to optional and mandatory redemption prior to maturity as described herein. See "THE SERIES 2007 BONDS -Redemption of the
Series 2007 Bonds" herein.
NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER OF THE CITY, THE STATE OF CALIFORNIA OR ANY POLITICAL SUBDIVISION
THEREOF OTHER THAN THE DISTRICT TO THE LIMITED EXTENT DESCRIBED IN THE INDENTURE IS PLEDGED TO THE PAYMENT OF THE BONDS.
EXCEPT FOR THE SPECIAL TAXES, NO OTHER TAXES ARE PLEDGED TO THE PAYMENT OF THE BONDS. THE BONDS ARE NOT GENERAL OR
SPECIAL OBLIGATIONS OF THE CITY NOR GENERAL OBLIGATIONS OF THE DISTRICT, BUT ARE SPECIAL OBLIGATIONS OF THE DISTRICT PAYABLE
SOLELY FROM NET SPECIAL TAX REVENUES AND CERTAIN OTHER ASSETS PLEDGED THEREFOR UNDER THE INDENTURE, AS MORE FULLY
DESCRIBED HEREIN.
MATURITY SCHEDULE
$ Serial Series 2007 Bonds
Maturity Date Principal Interest Price or Maturity Date Principal Interest Price or
(September 1) Amount Rate Yield CUSIP No.t (September 1) Amount Rate Yield CUSIP No. t
Term Bonds due September 1, 20 -Yield: %CUSIP No.t
Term Bonds due September 1, 2037 -Yield: %CUSIP No.t
t Copyright 2007, American Bankers Association CUSIP numbers provided by Standard & Poor's CUSIP Service Bureau, a division of The McGraw-Hill Companies, Inc.
CUSIP data herein are set forth for convenience of reference only. This data is not intended to serve as a database and does not in any way serve as a substitute for the CUSIP
Service Bureau. The District and the Underwriters assume no responsibility for the accuracy of such data.
Investment in the Series 2007 Bonds involves risks which may not be appropriate for some investors. See "SPECIAL RISK FACTORS" for a discussion of
certain risk factors that should be considered, in addition to the other matters set forth herein, in evaluating the investment quality of the Series 2007 Bonds. This cover page
contains information for quick reference only. It is not a complete summary of the Series 2007 Bonds. Investors should read the entire Official Statement to obtain
information essential to the making of an informed investment decision.
The Series 2007 Bonds are offered when, as and if issued and delivered to the Underwriters, subject to the approval as to their validity by Orricl~ Herrington & Sutcliffe
LLP, Bond Counsel, and subject to certain other conditions. Orrick, Herrington & Sutcliffe LLP is acting as disclosure counsel in connection with the Series 2007 Bonds. Certain legal
matters will be passed upon for the Underwriters by their counsel, Quint & Thimmig, LLP, San Francisco, California, and for the City and the District by their counsel, Woodruff,
Spradlin & Smart, A Professional Corporation, Orange, California. It is anticipated that the Series 2007 Bonds will be available for delivery in book-entry form through the facilities of
DTC on or about , 2007.
'Preliminary, subject to change.
OHS WEST:260139836.5
CITY OF TUSTIN, CALIFORNIA
(Orange County, California)
CITY COUNCIL
Lou Bone, Mayor
Jerry Amante, Mayor Pro Tem
Doug Davert, Councilmember
Tony Kawashima, Councilmember
Jim Palmer, Councilmember
CITY STAFF
William A. Huston, City Manager
George W. Jeffries, City Treasurer
Christine A. Shingleton, Assistant City Manager
Pamela Stoker, City Clerk
Ronald A. Nault, Director of Finance
Tim Serlet, Director of Public Works
PROFESSIONAL SERVICES
Bond Counsel
Orrick, Herrington & Sutcliffe LLP
Los Angeles, California
City Attorney
Woodruff, Spradlin & Smart,
A Professional Corporation
Orange, California
Financial Advisor
Gardner, Underwood and Bacon, LLC
Los Angeles, California
Trustee
Union Bank of California, N.A.
Los Angeles, California
Special Tax Consultant
David Taussig & Associates, Inc.
Newport Beach, California
Appraiser Market Absorption Analyst Special Tax Administrator
Harris Realty Appraisal Sullivan Group Real Estate Advisors MuniFinancial, Inc.
Newport Beach, California San Diego, California Temecula, California
OHS WESr:260139836.5
No dealer, broker, salesperson or other person has been authorized by the City, the District or
the Underwriters to give any information or to make any representations with respect to the City, the
District or the Series 2007 Bonds other than the information contained herein and, if given or made,
such other information or representation must not be relied upon as having been authorized by the
City, the District or the Underwriters. 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 Series 2007 Bonds by a person in
any jurisdiction in which it is unlawful for such person to make such an offer, solicitation or sale.
This Official Statement is not to be construed as a contract with the purchasers of the Series
2007 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.
Certain of the information set forth herein has been obtained from sources which the City and
the District believe to be reliable, but such information is not guaranteed by the City or the District as
to accuracy or completeness.
The Underwriters have provided the following sentence for inclusion in this Official
Statement. The Underwriters have reviewed the information in this Official Statement in accordance
with, and as a part of, their responsibilities to investors under the federal securities laws as applied to
the facts and circumstances of this transaction, but the Underwriters do not guarantee the accuracy or
completeness of such information.
All summaries of the Indenture or other documents are made subject to the complete
provisions thereof and do not purport to be complete statements of any or all of such provisions.
Reference is hereby made to such documents on file with the District for further information in
connection therewith. This Official Statement is submitted in connection with the sale of the Series
2007 Bonds referred to herein and may not be reproduced or used, in whole or in part, for any other
purpose.
In connection with this offering, the Underwriters may overallot or effect transactions which
stabilize or maintain the market price of the Series 2007 Bonds at a level above that which might
otherwise prevail in the open market. Such stabilizing, if commenced, may be discontinued at any
time. The Underwriters may offer and sell the Series 2007 Bonds to certain dealers and dealer banks
and banks acting as agent at prices lower than the public offering prices stated on the cover page
hereof and such public offering prices may be changed from time to time by the Underwriters.
OHS WESr:260139836.5
TABLE OF CONTENTS
Page
INTRODUCTION .................................................................................. .................................. 1
THE SERIES 2007 BONDS .................................................................... .................................. 4
Authority for Issuance ................................................................. .................................. 4
Description of the Series 2007 Bonds .......................................... .................................. 4
Redemption of the Series 2007 Bonds ......................................... .................................. 5
Debt Service Schedule ................................................................. .................................. 9
ESTIMATED SOURCES AND USES OF FUNDS ................................ ................................ 10
THE PROJECT ....................................................................................... ................................ 10
SECURITY FOR THE SERIES 2007 BONDS ....................................... ................................ 10
General ........................................................................................ ................................ 10
The Special Taxes ........................................................................ ................................ 11
Special Tax Fund ......................................................................... ................................ 13
Reserve Fund ............................................................................... ................................ 14
Additional Bonds ......................................................................... ................................ 14
Covenant for Superior Court Foreclosure ..................................... ................................ 15
Market Absorption Study ............................................................. ................................ 16
Property Values ........................................................................... ................................ 17
Direct and Overlapping Debt ....................................................... ................................ 18
Estimated Value-to-Lien Ratios ................................................... ................................ 21
Effective Tax Rates ..................................................................... ................................ 22
THE DISTRICT ...................................................................................... ................................ 23
General ........................................................................................ ................................ 23
Tustin Legacy .............................................................................. ................................ 24
Summary of District Proceedings ................................................. ................................ 24
Rate and Method of Apportionment ............................................. ................................ 25
Former Marine Corps Air Station Tustin ...................................... ................................ 27
CEQA Compliance ...................................................................... ................................ 27
Entitlement Status ........................................................................ ................................ 28
Property Ownership and Development ......................................... ................................ 28
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TABLE OF CONTENTS
(continued)
Page
SPECIAL RISK FACTORS .......................................................................................... .......... 45
Concentration of Ownership .............................................................................. .......... 45
Insufficiency of Special Taxes ........................................................................... .......... 46
The Series 2007 Bonds are Limited Obligations of the District .......................... .......... 46
The Special Taxes are not Personal Obligations of the Property Owners ............ .......... 47
Special Tax Delinquencies ................................................................................. .......... 47
Failure to Develop Property ............................................................................... .......... 48
Unconventional Mortgage Structures ................................................................. .......... 48
Risks Related to Current Market Conditions ...................................................... .......... 49
Appraised Values .............................................................................................. .......... 49
Bankruptcy ........................................................................................................ .......... 50
Disclosures to Future Purchasers ....................................................................... .......... 50
Billing of Special Taxes ..................................................................................... .......... 50
Natural Disasters ............................................................................................... .......... 51
Soil Conditions in the District ............................................................................ .......... 51
Hazardous Substances ....................................................................................... .......... 51
Payments by FDIC or Other Federal Agencies ................................................... .......... 52
Exempt Properties ............................................................................................. .......... 53
Cumulative Burden of Parity Taxes, Special Assessments ................................. .......... 53
Value-to-Lien Ratios ......................................................................................... .......... 53
Limitations on Remedies ................................................................................... .......... 54
Right to Vote on Taxes Act ................................................................................ .......... 54
Loss of Tax Exemption ...................................................................................... .......... 55
Limited Liquidity of the Series 2007 Bonds ....................................................... .......... 55
LITIGATION ............................................................................................................... .......... 55
CONTINUING DISCLOSURE ..................................................................................... .......... 55
CONCLUDING INFORMATION ................................................................................ .......... 57
Legal Opinions .................................................................................................. .......... 57
Financial Interest ............................................................................................... .......... 57
Tax Exemption .................................................................................................. .......... 57
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TABLE OF CONTENTS
(continued)
Page
Underwriting ........................................................................................................ ....... 59
No Ratings ............................................................................................................ ....... 60
Miscellaneous ....................................................................................................... ....... 60
APPENDIX A APPRAISAL ............................................................................................ ..... A-1
APPENDIX B SUMMARY OF MARKET ABSORPTION STUDY ............................... ......B-1
APPENDIX C RATE AND METHOD OF APPORTIONMENT OF SPECIAL TAX...... ......C-1
APPENDIX D PROPOSED FORM OF OPINION OF BOND COUNSEL ...................... ..... D-1
APPENDIX E SUMMARY OF INDENTURE ................................................................ ......E-1
APPENDIX F FORMS OF CONTINUING DISCLOSURE AGREEMENTS .................. ...... F-1
APPENDIX GBOOK-ENTRY ONLY SYSTEM ............................................................ ..... G-1
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INSERT AERIAL PHOTO
OHS WESr:260139836.5
INSERT REGIONAL MAP
OHS WESr:260139836.5
OFFICIAL STATEMENT
$59,855,000
CITY OF TUSTIN
COMMUNITY FACILITIES DISTRICT N0.06-1
(TUSTIN LEGACY/COLUMBUS VILLAGES)
SPECIAL TAX BONDS, SERIES 2007 A
INTRODUCTION
The purpose of this Official Statement, including the cover page, table of contents and the
Appendices, is to provide certain information concerning the issuance of and sale by City of Tustin
Community Facilities District No. 06-1 (Tustin Legacy/Columbus Villages) (the "District") of
$59,855,000* aggregate principal amount of its Special Tax Bonds, Series 2007 A (the "Series 2007
Bonds").
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 Appendices hereto, and the documents summarized
or described herein. A full review should be made of the entire Official Statement. The sale and
delivery of the Series 2007 Bonds to potential investors is made only by means of the entire Official
Statement.
The Series 2007 Bonds are being issued pursuant to the Mello-Roos Community Facilities
Act of 1982, constituting Section 53311 et seq. of the California Government Code (the "Act") and
the Indenture, dated as of 1, 2007 (the "Indenture"), by and between the District and
Union Bank of California, N.A., as trustee (the "Trustee"). Capitalized undefined terms used herein
shall have the meanings ascribed thereto in the Indenture.
The Series 2007 Bonds will be issued as fully registered bonds in denominations of $5,000 or
any integral multiple thereof and will be dated as of and bear interest from the date of delivery, at the
rates set forth on the cover page hereof.
In accordance with the provisions of the Indenture, and subject to the conditions specified
therein, the District may issue additional bonds (the "Additional Bonds")payable on a parity with the
Series 2007 Bonds. See "SECURITY FOR THE SERIES 2007 BONDS -Additional Bonds." The
Series 2007 Bonds and any such Additional Bonds are collectively referred to herein as the "Bonds."
Pursuant to the Act, the qualified electors of the District approved the levy of a special tax
(the "Special Tax") within the boundaries of the District. The Special Tax is comprised of a Special
Tax A for facilities and a Special Tax B for services; however, only the Special Tax A is pledged to
the payment of the Bonds. References to the Special Tax herein refer only to the Special Tax A
pledged to the payment of the Bonds. See "THE DISTRICT -Summary of District Proceedings."
The Bonds are payable from and secured by a pledge of Net Special Tax Revenues and certain other
Preliminary, subject to change.
OHS WESr:260139836.5
amounts held under the Indenture as described herein. See "SECURITY FOR THE SERIES 2007
BONDS" and Appendix E - "Summary of Indenture."
The District is comprised of two zones (each, a "Zone") located in the City of Tustin (the
"City"), of which approximately 64.2 acres in Zone 1 of the District ("Zone 1") are expected to be
subject to the Special Tax and approximately 55.8 acres in Zone 2 of the District ("Zone 2") are
expected to be subject to the Special Tax. The Special Taxes levied in each Zone are cross-
collateralized with respect to the payment of debt service on the Bonds. Zone 1 is part of the master
planned community known as Columbus Square and Zone 2 is part of the master planned community
known as Columbus Grove. See "THE DISTRICT - General."
William Lyon Homes, Inc. ("William Lyon Homes"), Lennar Homes of California, Inc.
("Lennar Homes"), KB Home Coastal, Inc. ("KB Home," and together with William Lyon Homes
and Lennar Homes, the "Merchant Builders" and individually each a "Merchant Builder"), ORA
Astoria, LLC ("ORA Astoria"), ORA Ciara, LLC ("ORA Ciara"), LandSource Holding Company,
LLC ("LandSource"), MW Housing Partners III, L.P. ("MW Housing" and together with ORA
Asoria, ORA Ciara and LandSource, the "Land Banks" and individually each a "Land Bank") and
Tustin Villas Partners, LLC ("Tustin Villas") currently own the property in the District, together
with, as of May 15, 2007, 304 individual homeowners. The Merchant Builders, the Land Banks,
Tustin Villas and individual homeowners are collectively referred to herein as the "Property
Owners." See "THE DISTRICT -Property Ownership and Development." The District constitutes
an additional phase of development of the former Marine Corps Air Station Tustin (the "Air
Station"). The portion of the Air Station located in the City and an additional parcel is being
developed as an approximately 1,533 gross acre master planned community called Tustin Legacy
("Tustin Legacy"). Approximately 73 acres of the former Air Station are located in the City of
Irvine. See "THE DISTRICT."
It is expected that the District will be developed with 1,454 residential units reflecting 14
different products. As noted in Table 1 below, 291 of the units in the District will be subject to the
City's affordable housing requirements. The units subject to the City's affordable housing
requirements are subject to the Special Tax, but at lower rates than market-rate residential units. See
Appendix C - "Rate and Method of Apportionment of Special Tax." The following table indicates
the name of each development, the number of units to be constructed within such development, the
type of product to be constructed, and certain other information as of May 15, 2007. See "THE
DISTRICT - Property Ownership and Development" for additional information regarding
development within the District.
OHS WESr:260139836.5 2
Table 1
City of Tustin
Community Facilities District No. 06-1
(Tustin Legacy/Columbus Villages)
Summary of Proposed Development in the District
As of May 15, 2007
# of Expected
Product Name Description Units at Completion Property Owner Site Condition
Zone 1 (Columbus Sq uare):
Mirabella~'~ Townhomes 60 William Lyon Homes Near finished sites.
Verandas~'~ Detached homes 97 William Lyon Homes Near finished sites, models
complete.
Cambridge Lane~i~ Townhomes 156~5~ William Lyon Homes Near finished sites, models
complete, production homes
underway.
Astoria~i~ Detached homes 98 William Lyon Homes/ Near finished sites, models
ORA Astoria/ Individuals complete, production homes
underway, home closings
underway.
Gables~~~ Detached homes 84 Lennar Homes/ Near finished sites, models
LandSource/ Individuals complete, production homes and
home closings underway.
Meriwether~~~ Triplex 96 Lennar Homes/ Near finished sites, models
Townhomes LandSource/ Individuals complete, production homes and
home closings underway.
Camden Place~~~ Townhomes 158~5~ Lennar Homes/ Near finished sites, models
LandSource/ Individuals complete, production homes and
home closings underway.
Coventry Court~3~ Age-restricted 240~5~ Tustin Villas Blue-top sites; models under
condos construction.
Subtotal 989
Zone 2 (Columbus Grove):
Ciara~i~ Detached homes 67 William Lyon Homes/ Near finished sites, models
ORA Ciara/ Individuals complete, production homes, home
closings underway.
Ainsley Park~'~ Townhomes 84 William Lyon Homes Near finished sites.
Clarendon~'~ Triplex 102~5~ William Lyon Homes/ Near finished sites, models
Townhomes Individuals complete, production homes, home
closings underway.
Westbourne~~~ Detached homes 59 Lennar Homes/ Near finished sites, models
LandSource/ Individuals complete, production homes, home
closings underway.
Cantara~~~ Detached homes 68 Lennar Homes/ Near finished sites, models
Individuals complete, production homes, home
closings underway.
Madison~'~ Detached homes 85 KB Home/MW Near finished sites, models
Housing/Individuals complete, production homes, home
closings underway.
Subtotal 465
Total 1,454
~'~ To be built by William Lyon Homes.
«~ To be built by Lennar Homes.
(3) Expected to be built by a joint venture between Lennar Homes and William Lyon Homes.
~'~ To be built by KB Home.
(s) 50 units will be designated for affordable housing in the Cambridge Lane project, 46 units will be designated for affordable housing in the
Camden Place project, 153 units will be designated for affordable housing in the Coventry Court project and 42 units will be designated for
affordable housing in the Clarendon project.
Source: William Lyon Homes, Lennar Homes and KB Home.
OHS WES'r:260139836.5 3
The proceeds from the sale of the Series 2007 Bonds will be used to (a) pay the cost and
expense of the acquisition and construction of certain public facilities necessary for the development
of the District (see "THE PROJECT"), (b) pay capitalized interest on the Series 2007 Bonds to
September 1, 2008, (c) fund a reserve fund for the Series 2007 Bonds, (d) pay Administrative
Expenses and (e) pay the costs of issuing the Series 2007 Bonds. See "ESTIMATED SOURCES
AND USES OF FUNDS."
Certain risk factors should be considered, in addition to other matters set forth herein, in
evaluating the investment quality of the Series 2007 Bonds. See "SPECIAL RISK FACTORS."
Neither the faith and credit nor the taxing power of the City, the State of California (the
"State") or any political subdivision thereof other than the District to the limited extent
described in the Indenture is pledged to the payment of the Bonds. Except for the Special
Taxes, no other taxes are pledged to the payment of the Bonds. The Bonds are not general or
special obligations of the City nor general obligations of the District, but are special obligations
of the District payable solely from the Net Special Tax Revenues and certain other assets
pledged therefor under the Indenture, as more fully described herein.
Certain statements included or incorporated by reference in this Official Statement constitute
"forward-looking statements" within the meaning of the United States Private Securities Litigation
Reform Act of 1995, Section 21E of the United States Securities Exchange Act of 1934, as amended,
and Section 27A of the United States Securities Exchange Act of 1933, as amended. Such statements
are generally identifiable by the terminology used such as "plan," "expect," "estimate," "project,"
"budget" or other similar words. Such forward-looking statements include, but are not limited to,
certain statements contained in the information under the caption "SECURITY FOR THE SERIES
2007 BONDS" and in Appendix A - "Appraisal" and Appendix B - "Summary of Market
Absorption Study."
Brief descriptions of the Series 2007 Bonds, the Indenture, the security for the Series 2007
Bonds, the District, the status of development within the District and certain other information are
included in this Official Statement. Such descriptions and information do not purport to be
comprehensive or definitive. The descriptions herein of the Series 2007 Bonds, the Indenture and
other documents are qualified in their entirety by reference to the forms thereof and the information
with respect thereto included in the Series 2007 Bonds, the Indenture and other documents. Copies
of such documents may be obtained from the office of the City Clerk of the City, at 300 Centennial
Way, Tustin, California 92780, Attention: City Clerk.
THE SERIES 2007 BONDS
Authority for Issuance
The Bonds were authorized at a special election held in the District on July 17, 2006. The
Series 2007 Bonds will be issued pursuant to the Act and the Indenture.
Description of the Series 2007 Bonds
The Series 2007 Bonds will be issued in fully registered form only, and when delivered, will
be registered in the name of Cede & Co., as nominee of DTC. DTC will act as securities depository
for the Series 2007 Bonds. Ownership interests in the Series 2007 Bonds may be purchased in book-
OHS WESr:260139836.5 4
entry form only, in denominations of $5,000 or any integral multiple thereof within a single maturity.
The Series 2007 Bonds will be dated as of and bear interest from the date of delivery at the rates set
forth on the cover page hereof.
The principal of and premium, if any, on the Series 2007 Bonds will be paid in lawful money
of the United States of America at the office of the Trustee upon presentation and surrender of the
Series 2007 Bonds. The Series 2007 Bonds will mature as indicated on the cover hereof, and are
subject to optional and mandatory redemption as set forth herein.
Interest on the Series 2007 Bonds will be paid semiannually on March 1 and September 1
(each an "Interest Payment Date"), commencing on March 1, 2008. Interest on the Series 2007
Bonds will be calculated on the basis of a 360-day year comprised of twelve 30-day months.
Payment of interest on the Series 2007 Bonds will be made to the respective Owner by check of the
Trustee mailed by first class mail, postage prepaid, on each Interest Payment Date, to the Owner at
his or her address as it appears on the registration books to be kept by the Trustee for the Series 2007
Bonds (the "Bond Register"), as of the close of business on the fifteenth day of the month preceding
each Interest Payment Date, regardless of whether such day is a business day (the "Record Date").
So long as DTC or its nominee is the registered owner of the Series 2007 Bonds, interest payments
will be made as described in Appendix G - "Book-Entry Only System."
Interest on the Series 2007 Bonds will be payable from the Interest Payment Date next
preceding the date of authentication thereof unless (a) a Series 2007 Bond is authenticated on or
before an Interest Payment Date and after the close of business on the preceding Record Date, in
which event it will bear interest from such Interest Payment Date, (b) a Series 2007 Bond is
authenticated on or before the first Record Date, in which event interest thereon will be payable from
the date of delivery of such Series 2007 Bond, or (c) interest on any Series 2007 Bond is in default as
of the date of authentication thereof, in which event interest thereon will be payable from the date to
which interest has previously been paid or duly provided for.
Redemption of the Series 2007 Bonds
Optional Redemption
The Series 2007 Bonds are subject to optional redemption, in whole or in part, on any Interest
Payment Date on or after September 1, 20 ,from any source of available funds, at the following
respective redemption prices (expressed as percentages of the principal amount of the Series 2007
Bonds to be redeemed), plus accrued interest thereon to the date of redemption:
Redemption Dates Redemption Price
September 1, 20 and March 1, 20
September 1, 20 and March 1, 20
September 1, 20 and thereafter
OHS WESr:260139836.5 5
Mandatory Redemption from Special Tax Prepayments
The Series 2007 Bonds are subject to mandatory redemption, in whole or in part, on any Interest
Payment Date on or after March 1, 2008, from and to the extent of any prepayment of Special Taxes, at
the following respective redemption prices (expressed as percentages of the principal amount of the
Series 2007 Bonds to be redeemed), plus accrued interest thereon to the date of redemption:
Redemption Dates Redemption Price
March 1, 2008 through March 1, 20
September 1, 20 and March 1, 20
September 1, 20 and March 1, 20
September 1, 20 and thereafter
Mandatory Sinking Fund Redemption
The Series 2007 Bonds maturing on September 1, 20, are subject to mandatory sinking
fund redemption, in part, on September 1 in each year, commencing September 1, 20 at a
redemption price equal to the principal amount of the Series 2007 Bonds to be redeemed, without
premium, plus accrued interest thereon to the date of redemption, in the aggregate respective
principal amounts in the respective years as follows:
Sinking Fund Redemption Date
(September 1)
Principal Amount
to be Redeemed
* Maturity
If some but not all of the Series 2007 Bonds maturing on September 1, 20 are optionally
redeemed, the principal amount of Series 2007 Bonds maturing on September 1, 20 to be subject
to mandatory sinking fund redemption on any subsequent September 1 will be reduced, by $5,000 or
an integral multiple thereof, as designated by the District in a Written Certificate of the District filed
with the Trustee; provided, however, that the aggregate amount of such reductions shall not exceed
the aggregate amount of Series 2007 Bonds maturing on September 1, 20 so optionally redeemed.
If some but not all of the Series 2007 Bonds maturing on September 1, 20 are redeemed from
Special Tax prepayments, the principal amount of Series 2007 Bonds maturing on September 1, 20
to be subject to mandatory sinking fund redemption on any subsequent September 1 will be reduced
by the aggregate principal amount of the Series 2007 Bonds maturing on September 1, 20 so
redeemed from Special Tax prepayments, such reduction to be allocated among redemption dates as
nearly as practicable on a pro rata basis in amounts of $5,000 or integral multiples thereof, as
determined by the Trustee.
The Series 2007 Bonds maturing on September 1, 2037, are subject to mandatory sinking
fund redemption, in part, on September 1 in each year, commencing September 1, 20 at a
redemption price equal to the principal amount of the Series 2007 Bonds to be redeemed, without
premium, plus accrued interest thereon to the date of redemption, in the aggregate respective
principal amounts in the respective years as follows:
OHS WESr:260139836.5 6
Sinking Fund Redemption Date
(September 1)
2037*
* Maturity
Principal Amount
to be Redeemed
If some but not all of the Series 2007 Bonds maturing on September 1, 2037 are optionally
redeemed, the principal amount of Series 2007 Bonds maturing on September 1, 2037 to be subject
to mandatory sinking fund redemption on any subsequent September 1 will be reduced, by $5,000 or
an integral multiple thereof, as designated by the District in a Written Certificate of the District filed
with the Trustee; provided, however, that the aggregate amount of such reductions shall not exceed
the aggregate amount of Series 2007 Bonds maturing on September 1, 2037 so optionally redeemed.
If some but not all of the Series 2007 Bonds maturing on September 1, 2037 are redeemed from
Special Tax prepayments, the principal amount of Series 2007 Bonds maturing on September 1, 2037
to be subject to mandatory sinking fund redemption on any subsequent September 1 will be reduced
by the aggregate principal amount of the Series 2007 Bonds maturing on September 1, 2037 so
redeemed from Special Tax prepayments, such reduction to be allocated among redemption dates as
nearly as practicable on a pro rata basis in amounts of $5,000 or integral multiples thereof, as
determined by the Trustee.
Selection of Series 2007 Bonds for Redemption
If less than all of the Series 2007 Bonds outstanding are to be redeemed, the Trustee shall
select the Series 2007 Bonds to be redeemed from all Series 2007 Bonds not previously called for
redemption (a) with respect to any optional redemption, among maturities of Series 2007 Bonds as
directed in a Written Request of the District, and (b) with respect to any redemption from Special
Tax prepayments, among all maturities of the Series 2007 Bonds on a pro rata basis as nearly as
practicable. For purposes of such selection, all Series 2007 Bonds will be deemed to be comprised of
separate $5,000 denominations and such separate denominations will be treated as separate Series
2007 Bonds which may be separately redeemed.
Notice of Redemption
So long as DTC is acting as securities depository for the Series 2007 Bonds, notice of
redemption, containing the information required by the Indenture, will be mailed by first class mail,
postage prepaid, by the Trustee to DTC (not to the Beneficial Owners of any Series 2007 Bonds
designated for redemption) at least 30 days but not more than 60 days prior to the redemption date.
The Trustee must give notice of redemption to each of certain specified securities depositories and
information services designated in the Indenture. The actual receipt by DTC (or any Owner of a
Series 2007 Bond in the event that the book-entry only system is discontinued) of such notice of
redemption is not a condition precedent to redemption, and neither the failure to receive such notice
nor any defect in such notice will affect the validity of the proceedings for redemption of the Series
2007 Bonds or the cessation of interest on the redemption date.
OHS WESr:260139836.5 7
Partial Redemption of Series 2007 Bonds
Upon surrender of any Series 2007 Bonds to be redeemed in part only, the District will
execute and the Trustee will authenticate and deliver to the Owner, at the expense of the District, a
new Series 2007 Bond or Bonds of authorized denominations equal in aggregate principal amount to
the unredeemed portion of the Series 2007 Bonds surrendered, with the same interest rate and the
same maturity.
Effect of Notice of Redemption
Notice of redemption having been mailed as described above, and the amount necessary for
the redemption having been made available for that purpose and being available therefor on the date
fixed for such redemption, (a) the Series 2007 Bonds, or portions thereof, designated for redemption,
will become due and payable at the redemption price thereof as provided in the Indenture, (b) upon
presentation and surrender of such Series 2007 Bonds at the office of the Trustee, the redemption
price of such Series 2007 Bonds, together with unpaid accrued interest to said redemption date, will
be paid to the Owners thereof, (c) at the redemption date the Series 2007 Bonds, or portions thereof
so designated for redemption, will be deemed to be no longer outstanding and such Series 2007
Bonds, or portions thereof, will cease to bear further interest, and (d) as of the date fixed for
redemption, no Owner of any Series 2007 Bonds, or portions thereof so designated for redemption,
will be entitled to any of the benefits of the Indenture or to any other rights, except with respect to
payment of the redemption price and unpaid interest accrued to the redemption date from the
amounts so made available.
OHS WESr:260139836.5
Debt Service Schedule
The debt service schedule for the Series 2007 Bonds (including mandatory sinking fund
redemption on their respective September 1 redemption dates) is set forth below:
Year Ending
September 1
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
2019
2020
2021
2022
2023
2024
2025
2026
2027
2028
2029
2030
2031
2032
2033
2034
2035
2036
2037
TOTAL
Total
Principal Interest~l~ Debt Service
~'~ Interest on the Series 2007 Bonds is capitalized to September 1, 2008. See "ESTIMATED SOURCES
AND USES OF FUNDS."
OHS WESr:260139836.5 9
ESTIMATED SOURCES AND USES OF FUNDS
The estimated sources and uses of funds with respect to the Series 2007 Bonds are set forth in
the following table:
Sources:
Principal Amount of Series 2007 Bonds
[Less/Plus]: Net Original Issue [Discount/Premium]
Total Sources
Uses:
Acquisition Account
Construction Account
Capitalized Interest Account~i~
Reserve Fund~~~
Costs of Issuance~3~
Administrative Expense Fund
Total Uses
~'~ To pay interest on the Series 2007 Bonds to September 1, 2008.
~~~ Equals the Reserve Requirement for the Series 2007 Bonds.
(3) Includes Underwriters' discount, and legal fees, financial advisory fees and other issuance costs.
THE PROJECT
The Series 2007 Bonds are being issued, in part, to finance the acquisition and construction
of certain public facilities (the "Project") necessary for the development of the District. The Project
is expected to include the acquisition and construction of all or a portion of street improvements,
including grading, paving, curbs and gutters, sidewalks, street signalization and signage, street lights
and parkway and landscaping related thereto, storm drains, utilities, public parks and recreation
facilities, public library facilities, fire protection facilities and equipment and land, rights-of--way and
easements necessary for any of such facilities.
Pursuant to the Acquisition and Funding Agreement, dated as of 1, 2007 (the
"Acquisition Agreement"), by and among the District, the City, Moffett Meadows Partners LLC and
Lennar Homes, the District will use a portion of the Series 2007 Bonds to finance the acquisition
from Lennar Homes of those facilities to be constructed by Lennar Homes as set forth in the
Acquisition Agreement. Such facilities consist of roadway and traffic signal improvements to
Severyns Road from Valencia Avenue and traffic signal improvements at the intersection of
Kensington Park Drive and Valencia Avenue.
SECURITY FOR THE SERIES 2007 BONDS
General
Pursuant to the Act and the Indenture, the Bonds, including the Series 2007 Bonds, are
payable from the Net Special Tax Revenues. "Net Special Tax Revenues" is defined under the
Indenture to mean Special Tax Revenues less amounts required to pay Administrative Expenses.
OHS WES'r:260139836.5 I0
"Special Tax Revenues" is defined under the Indenture to mean the proceeds of the Special Taxes
received by or on behalf of the District, including prepayments thereof, interest and penalties thereon
and proceeds of the redemption or sale of property sold as a result of foreclosure of the lien of the
Special Taxes, which shall be limited to the amount of said lien and interest and penalties thereon.
"Administrative Expenses" is defined under the Indenture to mean "costs directly related to the
administration of the District, consisting of the costs of computing the Special Taxes and preparing
the annual Special Tax schedules and the costs of collecting the Special Taxes, the costs of remitting
the Special Taxes to the Trustee, the fees and costs of the Trustee (including its legal counsel) in the
discharge of the duties required of it under the Indenture, the costs incurred by the District in
complying with the disclosure provisions of any continuing disclosure undertaking and the Indenture,
including those related to public inquiries regarding the Special Tax and disclosures to Owners, the
costs of the District related to an appeal of the Special Tax, any amounts required to be rebated to the
federal government in order for the District to comply with the Indenture, an allocable share of the
salaries of the staff of the City providing services on behalf of the District directly related to the
foregoing and a proportionate amount of general administrative overhead of the City related thereto,
and the costs of foreclosure of delinquent Special Taxes." "Special Taxes" is defined under the
Indenture to mean the special taxes levied as Special Tax A within the District pursuant to the Act,
the Ordinance and the Indenture.
The payment of the principal of, premium, if any, and interest on the Bonds will be
exclusively paid from the Net Special Tax Revenues and other amounts in the Special Tax Fund, the
Bond Fund and the Reserve Fund. The amount of Special Taxes that the District may levy in any
year is strictly limited by the maximum rates approved by the qualified electors within the District, as
set forth in the Rate and Method. See "THE DISTRICT -Rate and Method of Apportionment." The
full text of the Rate and Method is set forth in Appendix C hereto.
Net Special Tax Revenues deposited in the Rebate Fund and the Administrative Expense
Fund are not pledged to the payment of any of the Bonds, and neither the Rebate Fund nor the
Administrative Expense Fund will be construed as a trust fund held for the benefit of the Owners of
any Bonds.
The Special Taxes
In the Indenture, the District has covenanted that, so long as any Bonds are outstanding, it
will levy the amount of Special Taxes within the District in accordance with the Rate and Method
and, subject to the limitations in the Rate and Method as to the maximum Special Tax that may be
levied, in an amount sufficient, together with other amounts on deposit in the Special Tax Fund and
available for such purpose, to pay the principal of and interest on the Bonds becoming due and
payable during the Bond Year commencing in such fiscal year, the Administrative Expenses
estimated for such year, any amounts required to replenish the Reserve Fund to the Reserve
Requirement and reasonably anticipated delinquent Special Taxes based on the delinquency rate for
Special Taxes levied in the previous fiscal year (collectively, the "Special Tax Requirement"). No
assurance can be given that the amounts collected in any given year will, in fact, equal the Special
Tax Requirement due to a variety of factors, including the maximum Special Tax rates and the forty-
year maximum term of the Special Tax levy on each parcel in the District imposed by the Rate and
Method. The Special Taxes levied in each Zone are cross-collateralized with respect to the payment
of debt service on the Bonds. See "THE DISTRICT -Rate and Method of Apportionment" and
Appendix C hereto. Moreover, it is possible that under certain circumstances the maximum rates
OHS WES'r:260139836.5 I I
could be reduced from current levels. See "SPECIAL RISK FACTORS -Right to Vote on Taxes
Act" below.
The Special Taxes will 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. When received, such Special Taxes will be applied as follows: first, to the Administrative
Expense Fund for the payment of Administrative Expenses; second, to the Bond Fund for payment of
debt service on (including payment for redemption of) the Bonds; third, for deposit in the Reserve
Fund to the extent needed to restore the balance therein to the Reserve Requirement; and fourth, for
transfer to the Rebate Fund the amounts, if any, due and owing to the United States Treasury.
The District has covenanted that it will not initiate proceedings under the Act to modify the
Rate and Method if such modification would adversely affect the security for the Bonds. The District
has also covenanted that in the event any initiative or referendum measure is proposed that purports
to modify the Rate and Method in a manner that would adversely affect the security for the Bonds,
the District will, 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 Bonds.
Although the Special Taxes will be levied against, and constitute a lien against, taxable
parcels within the District, they do not constitute a personal indebtedness of the respective property
owners. There is no assurance that the property owners will be financially able to pay the annual
Special Taxes or that they will pay such taxes even if financially able to do so. See "SPECIAL RISK
FACTORS -Special Tax Delinquencies."
The following tables show the Special Taxes to be levied within each Zone in the District,
assuming buildout of the District, and the percentage of the total tax levy per property owner as of
May 15, 2007. Note, however, that the Special Taxes levied in each Zone are cross-collaterialized
with respect to the payment of debt service on the Bonds.
OHS WES'r:260139836.5 IZ
Table 2
City of Tustin
Community Facilities District No. 06-1
(Tustin Legacy/Columbus Villages)
Special Taxes per Property Owner Assuming Development
As of May 15, 2007
Zone 1
Prouerty Owner # of Units Suecial Tax
William Lyon Homes 367 $616,255
Lennar Homes 97 125,430
LandSource~'~ 83 154,838
ORA Astoria~~~ 38 104,173
Tustin Villas 240 97,458
Individuals 164 248, 517
of Total
Special Tax Levy
Within the District
18.26%
3.72
4.59
3.09
2.89
7.36
Subtotal 989 $1,346,671 3 9.91%
Zone 2
of Total
Special Tax Levy
Prouerty Owner # of Units Suecial Tax Within the District
William Lyon Homes 191 $620,019 18.17%
Lennar Homes 33 178,105 5.46
MW Housing~'~ 45 217,710 6.45
Individuals 140 695, 991 20.63
ORA Ciara~~~ 20 127,496 3.99
KB Home 30 145,140 4.30
LandSource 6 37,217 1.10
Subtotal 465 $2,027,796 60.10%
Total 1,415 $3,374,467 100.00%(3)
~~~ Note, however, that pursuant to the Substitute Option Agreements, Lennar Homes is responsible for paying the Special
Taxes. See "THE DISTRICT -Property Ownership and Development - Lennar Homes' Development Plan."
~~~ Note, however, that pursuant to the ORA Option Agreements, William Lyon Homes is responsible for paying the
S ecial Taxes. See "THE DISTRICT -Property Ownership and Development -William Lyon Homes' Development Plan."
(3~ Numbers may not foot due to rounding.
Source: David Taussig and Associates, Inc
Special Tax Fund
The Special Tax Fund is created and established under the Indenture, and is maintained by
the Trustee. Pursuant to the Indenture, as soon as practicable after the District receives any Special
Tax Revenues, but in any event no later than the date ten Business Days prior to the Interest Payment
Date after such receipt, the District will transfer such Special Tax Revenues to the Trustee for deposit
in the Special Tax Fund; provided, however, that any portion of any such Special Tax Revenues that
represents prepaid Special Taxes that are to be applied to the payment of the redemption of Series
2007 Bonds in accordance with the mandatory redemption from special tax prepayments provisions
of the Indenture are required to be identified to the Trustee as such by the District and be deposited in
the Redemption Fund. Pursuant to the Indenture, the Trustee will transfer amounts on deposit in the
OHS WES'r:260139836.5 13
Special Tax Fund to the Administrative Expense Fund, the Bond Fund, the Reserve Fund and the
other funds established under the Indenture on the dates, in the amounts and in the priority set forth
in the Indenture. See Appendix E - "Summary of Indenture."
Reserve Fund
The Indenture provides that a Reserve Fund must be maintained in an amount equal to the
Reserve Requirement. Upon the issuance of the Series 2007 Bonds, $ , an amount equal to
the initial Reserve Requirement, will be deposited in the Reserve Fund. The Indenture provides that
the Reserve Requirement means, as of any date of calculation, an amount equal to the least of (a)
10% of the original aggregate principal amount of the Bonds (excluding any Bonds refunded with
proceeds of Additional Bonds), (b) Maximum Annual Debt Service, and (c) 125% of average Annual
Debt Service.
Moneys in the Reserve Fund will be used and withdrawn by the Trustee 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 or for the
purpose of redeeming Bonds. Transfers will be made from the Reserve Fund to the Bond Fund in the
event of a deficiency in the Bond Fund, in accordance with the Indenture.
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, the Trustee will, upon receipt of a Written Request of the District, transfer
the amount in the Reserve Fund to the Bond Fund or Redemption Fund, as applicable, to be applied,
on the next succeeding Interest Payment Date to the payment and redemption of all of the
Outstanding Bonds.
In connection with an optional redemption of Bonds or a mandatory redemption of Bonds
from Special Tax prepayments, a proportionate share of the amount on deposit in the Reserve Fund
will, on the Business Day on which amounts to redeem such Bonds are deposited in the Redemption
Fund, be transferred by the Trustee from the Reserve Fund to the Redemption Fund and will be
applied to the redemption of said Bonds; provided, however, that such amount shall be so transferred
only if and to the extent that the amount remaining on deposit in the Reserve Fund will be at least
equal to the Reserve Requirement (excluding from the calculation thereof said Bonds to be
redeemed). Such proportionate share shall be equal to the largest integral multiple of $5,000 that is
not larger than the amount equal to the product of (a) the amount on deposit in the Reserve Fund on
the date five Business Days prior to the date notice of redemption of such Bonds is required to be
given pursuant to the Indenture, times (b) a fraction, the numerator of which is the principal amount
of Bonds to be so redeemed and the denominator of which is the principal amount of Bonds to be
Outstanding on the day prior to the date on which such Bonds are to be so redeemed.
Additional Bonds
The Indenture provides that the District may, at any time after the issuance and delivery of
the Series 2007 Bonds, issue Additional Bonds payable from the Net Special Tax Revenues on a
parity with all other Bonds issued under the Indenture. Additional Bonds may be issued for the
purposes of (a) paying the costs of Facilities and (b) providing funds to refund Bonds issued under
the Indenture. In the case of Additional Bonds issued for the purpose of paying the costs of
OHS WES'r:260139836.5 I4
Facilities, no more than $ ~ aggregate principal amount of Additional Bonds may be issued.
Prior to the issuance of any Additional Bonds, the District will receive a certificate from one or more
Independent Consultants, which, taken together, certify that:
(i) on the basis of the parcels of land and improvements existing in the District
as of the January 1 preceding the proposed issuance of such Additional
Bonds, for each Fiscal Year that Bonds will be Outstanding, the amount of
the Available Special Taxes that may be levied on all Taxable Property in
such Fiscal Year is at least equal to 110% of Annual Debt Service for the
Corresponding Bond Year on all Outstanding Bonds; provided, however that
there will be excluded from such calculation of any Available Special Taxes
levied or that may be levied on any parcel of Taxable Property that, as of the
date of such certificate, is in default in the payment of any Special Taxes; and
(ii) the sum of (A) the Assessed Value of parcels of Taxable Property for which a
Qualified Appraisal Report has not been provided, plus (B) the Appraised
Value of parcels of Taxable Property for which a Qualified Appraisal Report
has been provided, as such Appraised Value is shown in such Qualified
Appraisal Report, is at least three times the sum of (I) the aggregate principal
amount of Outstanding Bonds, plus (II) the aggregate principal amount of all
fixed lien special assessments levied on parcels of Taxable Property, based
upon information from the most recent Fiscal Year for which such
information is available, plus (III) the sum of a portion of the aggregate
principal amount of Other CFD Bonds, which portion shall be equal to the
aggregate principal amount of such Other CFD Bonds multiplied by a
fraction, the numerator of which is the amount of special taxes levied for such
Other CFD Bonds on parcels of Taxable Property, and the denominator of
which is the total amount of special taxes levied for such Other CFD Bonds
on all parcels of land (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 such Other CFD Bonds occurs), based upon
information from the most recent Fiscal Year for which such information is
available.
Notwithstanding the foregoing, if such Additional Bonds are to be issued solely for the purpose of
providing funds to refund any Outstanding Bonds issued under the Indenture, and, upon such
issuance, Annual Debt Service in each Bond Year will be less than or equal to Annual Debt Service
in such Bond Year, then receipt of such certificate or certificates shall not be a condition precedent to
the issuance of such Additional Bonds. The issuance of Additional Bonds is subject to certain
additional specific conditions precedent. See Appendix E - "Summary of Indenture."
Covenant for Superior Court Foreclosure
In the event of a delinquency in the payment of any installment of Special Taxes, the District
is authorized by the Act to order institution of an action in the Superior Court of the State to foreclose
any lien therefor. In such action the real property subject to the Special Taxes may be sold at a
judicial foreclosure sale.
Preliminary, subject to change.
OHS WES'r:260139836.5 I5
Such judicial foreclosure proceedings are not mandatory. However, in the Indenture, the
District has covenanted for the benefit of the Owners of the Bonds that it will commence judicial
foreclosure proceedings against parcels with delinquent Special Taxes; provided, however that the
District is not required to order the commencement of foreclosure proceedings if (a) the total Special
Tax delinquency in the District for such fiscal year is less than 5% of the total Special Tax levied in
such fiscal year and (b) the amount then on deposit in the Reserve Fund is equal to the Reserve
Requirement. Notwithstanding the foregoing, if the District determines that any single property
owner in the District is delinquent in excess of $5,000 in the payment of the Special Tax, then the
District will diligently institute, prosecute and pursue foreclosure proceedings against such property
owner. The District may, but is not obligated to, advance funds from any source of legally available
funds in order to maintain the Reserve Fund at the Reserve Requirement. In a foreclosure proceeding
the District is entitled to recover penalties and interest on the delinquent Special Taxes through the
date that an order of sale is entered. Prompt commencement of foreclosure proceedings may not, in
and of itself, result in a timely or complete payment of delinquent Special Taxes.
The ability of the District to foreclose the lien of delinquent unpaid Special Taxes may be
limited in certain instances and may require prior consent of the obligee in the event the property is
owned by or in receivership of the Federal Deposit Insurance Corporation. See "SPECIAL RISK
FACTORS -Bankruptcy," "-Payments by FDIC or Other Federal Agencies" and "-Billing of
Special Taxes."
If the Reserve Fund is depleted, there could be a default or a delay in payments to the Owners
of the Bonds pending prosecution of foreclosure proceedings and receipt by the District of
foreclosure sale proceeds, if any. However, within the limits of the Rate and Method, the District
may adjust the Special Taxes levied on all taxable property within the District to provide an amount
required to pay debt service, including defaulted interest and principal payments, on the Bonds and to
replenish the Reserve Fund.
No assurances can be given that a judicial foreclosure action, once commenced, will be
completed or that it will be completed in a timely manner. If a judgment of foreclosure and order of
sale is obtained, the judgment creditor (the District) must cause a Notice of Levy to be issued. Under
current law, a judgment debtor (property owner) has 120 days from the date of service of the Notice
of Levy in which to redeem the property to be sold, which period may be shortened to 20 days for
parcels other than those on which a dwelling unit for not more than four persons is located. If a
judgment debtor fails to redeem and the property is sold, his 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 (Section 701.680 of the California Code of
Civil Procedure). The constitutionality of the aforementioned legislation, which repeals the former
one-year redemption period, has not been tested; and there can be no assurance that, if tested, such
legislation will be upheld.
Market Absorption Study
In order to provide information with respect to the potential market demand for the proposed
development within the District, Sullivan Group Real Estate Advisors (the "Market Absorption
Consultant") has prepared a Market Analysis and Absorption Projection dated September 2006 (the
"Absorption Study"). The Absorption Study analyzes the 1,454 residential units proposed for
development in the District. The Absorption Study concludes that build-out of the District will be
OHS WES'r:260139836.5 I6
completed by March 2009. See Appendix B - "Summary of Market Absorption Study" for a
discussion of the specific assumptions and methodology employed by the Market Absorption
Consultant and a more detailed discussion of its conclusions.
Property Values
An appraisal of the property in the District, dated June 5, 2007 (the "Appraisal"), was
prepared by Harris Realty Appraisal (the "Appraiser"). The Appraisal was prepared to estimate the
market value of the land in the District in its "as is" condition (the "Market Value"). The property
within the District designated for park, open space or civic uses and not subject to tax or special
assessment was not included in the Appraisal. The estimated values expressed in the Appraisal were
stated as of May 15, 2007. See the Appraisal included in Appendix A hereto for a description of the
assumptions made and the valuation methodologies used by the Appraiser.
The 1,454 residential units proposed to be developed within the District consist of 14
products. See Table 1 for a summary of the various products proposed for development within the
District and within each Zone. Of the 14 products, seven represent detached residential projects (for
a total of 558 units), four represent townhome projects (for a total of 458 units), two represent
townhome projects in a triplex configuration (for a total of 198 units), and one represents an age-
restricted condominium project (for a total of 240 units). Table 1 also indicates which Merchant
Builder is responsible for constructing the various projects.
The Appraiser has provided separate valuations for the property in each Zone within the
District. The Appraiser has utilized the direct comparison approach and the static residual analysis
for those lots where construction of homes had yet to commence as of the date of value of the
Appraisal. For those lots with completed model homes, completed homes or homes under
construction as of the date of value of the Appraisal, the Appraiser analyzed such lots separately.
In estimating the Market Value of the for-sale residential property in each Zone without unit
construction, the Appraiser considered the "as is" value of land and improvements. In order to
estimate the Market Value of the residential property, the Appraiser used the direct comparison
approach (i.e., a detailed comparison of actual sales of comparable property) and also completed a
static residual analysis (i. e. , a calculation of land value by deducting costs, including direct costs of
construction, marketing, taxes, overhead, and costs to finish the lot as well as required profit margin
to attract an investor in light of the risks and uncertainties of the project, from the average base price
for a specific product). According to the Appraiser, the static residual analysis is often a better
indication of land value when real estate market conditions are in flux, as is currently the case. See
"SPECIAL RISK FACTORS -Risks Related to Current Market Conditions." The Appraiser
estimated the aggregate bulk values of the land and site improvements as of May 15, 2007. The
estimated values consider the land without unit construction, give consideration to the finished lot
condition and then deduct the costs necessary to bring each lot to the finished lot condition. An
additional deduction is made for remaining site costs. Such costs reduce the value of the property
because they represent costs that must be incurred in order for the property to reach the state in which
it was valued for purposes of the Appraisal (i.e., a finished lot condition). Thus, subtracting the costs
to complete on-site improvements from the aggregate bulk values of the land in Zone 1, the
Appraiser estimated the aggregate Market Value of land without unit construction in Zone 1 as of
May 15, 2007, to be approximately $55,885,519 and in Zone 2 to be approximately $40,137,427.
OHS WES'r:260139836.5 I7
In estimating the Market Value of the for-sale residential property in each Zone with unit
construction, the Appraiser valued such lots based on the stage of construction. For homes that were
sold to individual homeowners as of the date of value of the Appraisal, the Appraiser used the current
average base sales price less incentives or the average sale price for the homes that had closed
escrow, whichever was lower, as their indication of value. Completed but unsold homes were valued
based on the base sales price achieved for similar floor plans, and completed but unsold model homes
were valued based on the base sales price achieved for similar floor plans, but with an upward
adjustment of 5 percent of the base value for the exterior and interior upgrades of the model homes.
Homes in various stages of construction were valued based on the Appraiser's inspection of the
property, as further described in the Appraisal. As of the date of value of the Appraisal, 446 units
had been built or were under construction in Zone 1, and the Appraiser estimated the aggregate
Market Value for such homes to be $190,393,700. In Zone 2, 306 homes had been built or were
under construction, and the Appraiser estimated the aggregate Market Value for such homes to be
$212,242,730.
Thus, based on the above-summarized analyses and the assumptions set forth in the
Appraisal, the Appraiser estimated the Market Value of the property within the District as of May 15,
2007 to be approximately $498,000,000 (rounded), calculated as the sum of the Market Value of
Zone 1 and Zone 2. Proceeds of Series 2007 Bonds of approximately $44,900,000 are expected to be
used to reimburse the Merchant Builders for a portion of the approximately $75,000,000 in on-site
and off-site improvements within the District, which costs represent the costs required to bring the
raw land to a blue-top lot condition for the detached products and to a mass graded condition for the
attached products.
Direct and Overlapping Debt
Contained within the District are overlapping local agencies providing public services. Some
of such local agencies have outstanding bonds or authorization to issue bonds payable from taxes or
special assessments.
Water District Debt
The property in the District receives water and sewer service from the Irvine Ranch Water
District ("IlZWD") and is located within IlZWD's Improvement District Nos. 113 and 213
(collectively, the "IlZWD Improvement Districts"). At an election held on August 31, 2004, IlZWD
received authorization to issue not to exceed $26,000,000 aggregate principal amount of general
obligation bonds for Improvement District No. 113 and $87,000,000 aggregate principal amount of
general obligation bonds for Improvement District No. 213. IlZWD issued $1,500,000 aggregate
principal amount of general obligation bonds for Improvement District No. 113 and $11,100,000
aggregate principal amount of general obligation bonds for Improvement District No. 213 in
February 2006 and $5,000,000 aggregate principal amount of general obligation bonds for
Improvement District No. 113 and $6,300,000 aggregate principal amount of general obligation
bonds for Improvement District No. 213 pursuant to such authorization in July 2007.
IlZWD Improvement District bonds are general obligation bonds payable from ad valorem
taxes; the amount of the tax levy on each parcel is based on the assessed valuation of the land only.
The District cannot predict the amount of authorized but unissued bonds for IlZWD Improvement
Districts that will ultimately be issued by IlZWD, nor can it predict when such debt will be issued or
the debt service payments thereon.
OHS WES'r:260139836.5 1 g
School District Debt
The Tustin Unified School District has established Community Facilities District No. 06-1 of
the Tustin Unified School District (the "06-1 School District CFD") and has authorized the issuance
of bonded debt in the amount of $25,000,000 (the "06-1 School District CFD Bonds"), and the levy
of special taxes against the property in the 06-1 School District CFD to pay for debt service on the
06-1 School District CFD Bonds, for certain costs of providing school facilities, and for related
incidental expenses. The 06-1 School District CFD expects to issue the 06-1 School District CFD
Bonds pursuant to such authorization in several series, with the first such issuance expected to occur
in October 2007 in the aggregate principal amount of approximately $6,375,000. Any debt issued by
the CFD 06-1 School District will be payable by the owners of property in Zone 1 but not Zone 2 of
the District.
The City cannot predict the extent to which the 06-1 School District CFD will issue its
authorized but currently unissued debt, the timing of any such issuances or the debt service payments
thereon.
OHS WES'r:260139836.5 19
Direct and Overlapping Debt Summary
Set forth in the table below is a summary of the direct and overlapping debt payable from taxes or special assessments in the District.
Table 3
City of Tustin
Community Facilities District No. 06-1
(Tustin Legacy/Columbus Villages)
Direct and Overlapping Debt Summary
District Share
2006-2007 Amount of Levy Percent of Levy Total Debt of Total Debt
Overlapping District~i~ Total Levy on Parcels in the District on Parcels in the District Outstanding«~ Outstanding
Metropolitan Water District G.O. Bonds $103,904,001 $14,626 0.01408% $359,115,000 $50,552
Tustin Unified SFID 2002-1 (Zone 1 only) $231,343 $3,911 1.69050% $21,954,947 $371,148
IRWDImprovementDistrictNo.213 Bonds $806,436 $438,573 54.38414% $11,100,000 $6,036,639
IRWDImprovementDistrictNo.113 Bonds $109,867 $59,750 54.38419% $1,500,000 $815,763
Total Overlapping Debt $7,274,102
Plus: Series 2007 Bonds (3) $59,855,000
Estimate Share of Direct and Overlapping Debt Allocable to the District (3) $67,129,102
Appraised Value ~'~ $498,000,000
Estimated Ap praised Value-to-Lien Ratio (3) 7.42
~'~ Includes ad valorem, general obligation, special taxes, and standby charges that support any type of outstanding debt.
«~ As of May 1, 2007. The 06-1 School District Bonds have not been issued and are not reflected in this table. In addition, the bonds issued by IRWD in July 2007 are not reflected in this table.
Including the issuance of such bonds by IRWD would result in a value-to-lien ratio of approximately 6.80. See "-Direct and Overlapping Debt."
(3) Preliminary, subject to change.
~'~ Based on the Appraisal.
Source: David Taussig and Associates, Inc.; County of Orange/Controller's Office; IRWD.
20
OHS WESr:260139836.5
Other Potential Debt
The District has no control over the amount of additional debt payable from taxes or
assessments levied on all or a portion of the property within the District which may be incurred in the
future by other governmental agencies having jurisdiction over all or a portion of the property within
the District. Furthermore, nothing prevents the owners of property within the District from
consenting to the issuance of additional debt by other governmental agencies which would be
secured by taxes or assessments on a parity with the Special Taxes. To the extent such indebtedness
is payable from assessments, other special taxes levied pursuant to the Act or taxes, such
assessments, special taxes and taxes will be secured by liens on the property within the District on a
parity with the lien of the Special Taxes.
Accordingly, the debt on the property within the District could increase, without any
corresponding increase in the value of the property therein, and thereby severely reduce the estimated
value-to-lien ratio that exists at the time the Series 2007 Bonds are issued. The imposition of such
additional indebtedness could reduce the willingness and ability of the property owners within the
District to pay the Special Taxes when due. See "SPECIAL RISK FACTORS -Cumulative Burden
of Parity Taxes, Special Assessments."
Moreover, in the event of a delinquency in the payment of Special Taxes, no assurance can
be given that the proceeds of any foreclosure sale of property with delinquent Special Taxes would
be sufficient to pay the delinquent Special Taxes. See "SPECIAL RISK FACTORS - Appraised
Values."
Estimated Value-to-Lien Ratios
The values, direct and overlapping debt and total tax burden on property vary among parcels
within the District. The $59,855,000* principal amount of Series 2007 Bonds constitutes direct debt
for the property in the District. As set forth in Table 3 under "Direct and Overlapping Debt -Direct
and Overlapping Debt Summary" above, as of May 1, 2007, there is approximately $7,274,102 of
other outstanding public indebtedness applicable to property in the District. Thus, the estimated
direct and overlapping debt allocable to the property in the District is approximately $67,129,102.
The market value of the property in the District as of May 15, 2007, as estimated by the
Appraiser in the Appraisal, is approximately $498,000,000 (rounded), which is approximately 8.3
times the principal amount of the Series 2007 Bonds and 7.4 times the sum of the principal amount of
the Series 2007 Bonds, plus the amount of all the other outstanding public indebtedness allocable
thereto, under the assumptions described in Table 3.
The foregoing value-to-lien ratios represent estimated averages for the property within
the District only; the actual ratios for individual parcels of land within the District may vary
significantly.
No assurance can be given that any of the foregoing value-to-lien ratios will be maintained
during the period of time that the Series 2007 Bonds are Outstanding. The District has no control
over future property values 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, is on a
parity with the Special Taxes. See "SPECIAL RISK FACTORS -Appraised Values" and "- Value-
to-Lien Ratios."
OHS WES'r:260139836.5 2I
Effective Tax Rates
The following two tables set forth the projected tax rates for fiscal year 2007-08 based on
the fiscal year 2006-07 tax rates in Zone 1 and Zone 2 for residences of various square footages
within the District. The estimated tax rates and amounts presented herein are based on the best
available information available as of May 15, 2007. The actual amounts charged are expected to
vary and may increase in future years.
Table 4
City of Tustin
Community Facilities District No. 06-1
(Tustin Legacy/Columbus Villages)
Estimated Fiscal Year 2007-08 Tax Rates
Zone 1
Estimated Assessed Valuation and Property
Taxes
Estimated Sales Price
Less: Homeowner's Exemption
Estimated Assessed Value ~~~
AD VALOREM PROPERTY TAXES (3)
Base Property Tax Rate
Tustin Unified SFID 2002-1 (Zone 1 only)
Metropolitan Water District
IRWD #213 Sewer Bond (Land Value Only)
IRWD #113 Sewer Bond (Land Value Only)
Total General Property Taxes and Overrides
ASSESSMENTS, SPECIAL TAXES AND
PARCEL CHARGES (3)
Mosquito and Fire Ant Assessment
Vector Control Charge
Metropolitan Water Standby Charge
Rubbish Disposal
Proposed CFD No. 06-01 Special Tax A
Proposed CFD No. 06-01 Special Tax B
Proposed 06-1 School District CFD Bonds
Total Assessments, Special Taxes and Parcel
Charges
PROJECTED TOTAL PROPERTY TAXES
Projected Total Effective Tax Rate (as % of
Estimated Sales Price)
Estimated Amount
Percent SFD
of Total SFD 2,476- SFA SFA Senior
AV >3,600 SF 2850 SF >2,550 SF 1,801-2,050 SF Units
$1,270,000 $939,990 $810,000
(7,000) (7,000) (7,000)
$1,263,000 $932,990 $803,000
1. 00000% $12,630 $9,330 $8,030
0. 00232% $29 $22 $19
0. 00470% $59 $44 $38
0.
n 14093%
nimnoi $890
mini $657
mnn $566
m~~
$5.24 $5.24 $5. 24
$1.92 $1.92 $1. 92
$10.08 $10.08 $10 .08
$160.92 $160.92 $160 .92
NA $3,256 $2,49 8
NA $1,950.00 $1,425. 00
NA $2.815.00 $1.891. 00
$21,929 $16,135
1.7267% 1.7165%
$5.24
$1.92
$10.08
$160.92
$2,410
$1,335.00
$1,690.00
$5,613
$14,342
1.7707%
$688,000 $325,000
(7,000 (7,000
$681,000 $318,000
$6,810 $3,180
$16 $7
$32 $15
$480 $224
$65 $31
$7,403 $3,457
$5.24
$1.92
$10.08
$160.92
$1,905
$1,020.00
$1,186.00
$4,289
$5.24
$1.92
$10.08
$160.92
$734
$488.00
$0.00
$1,400
$11,692 $4,857
1.6994% 1.4945%
~'' Provided by Springbrook Realty Advisors, Inc. and consistent with the Appraisal. Sales prices are subject to
upward or downward adjustments based on market conditions.
~~~ Assessed value and ad valorem taxes incorporate owner occupied assessed value exemption of $7,000.
(3) Based on fiscal year 2006-07 ad valorem rates. Rates are subject to change.
Source: David Taussig and Associates, Inc.; City of Irvine; County Auditor/Controller's Office.
OHS WESr:260139836.5 22
Table 5
City of Tustin
Community Facilities District No. 06-1
(Tustin Legacy/Columbus Villages)
Estimated Fiscal Year 2007-08 Tax Rates
Zone 2
Estimated Amount
Percent SFD
Estimated Assessed Valuation and Property of Total SFD 2,551- SFA SFA Affordable
Taxes AV >4,300 SF 2900 SF >1,800 SF <=1,600 SF Units
Estimated Sales Price $1,465,000 $954,990 $724,000 $513,401 $288,000
Less: Homeowner's Exemption ($7,000) ($7,000) ($7,000) ($7,000) ($7,000)
Estimated Assessed Value ~~~ $1,458,000 $947,990 $717,000 $506,401 $281,000
AD VALOREM PROPERTY TAXES (3)
Base Property Tax Rate 1.00000% $14,580 $9,480 $7,170 $5,064 $2,810
Metropolitan Water District 0.00470% $69 $45 $34 $24 $13
IRWD #213 Sewer Bond (Land Value Only) 0.14093% $1,027 $668 $505 $357 $198
IRWD #113 Sewer Bond (Land Value Only) 0.01920% $140 $91 $69 $49 $27
Total General Property Taxes and Overrides 1.16483% $15,816 $10,283 $7,778 $5,493 $3,048
ASSESSMENTS, SPECIAL TAXES AND
PARCEL CHARGES (3)
Mosquito and Fire Ant Assessment $5.24 $5.24 $5.24 $5.24 $5.24 $5.24
Vector Control Charge $1.92 $1.92 $1.92 $1.92 $1.92 $1.92
Metropolitan Water Standby Charge 10.08 $10.08 $10.08 $10.08 $10.08 $10.08
Rubbish Disposal $160.92 $160.92 $160.92 $160.92 $160.92 $160.92
Irvine USD RIMD -Detached Unit $51.09 $51.09 $51.09 $0.00 $0.00 $0.00
Irvine USD RIMD -Attached Unit $34.28 $0.00 $0.00 $34.28 $34.28 $34.28
Proposed CFD No. 06-01 Special Tax A NA $7,448 $4,838 $3,268 $2,449 $350
Proposed CFD No. 06-01 Special Tax B NA $2,250 $1,485 $1,020 $780 $600
Total Assessments, Special Taxes and Parcel
Charges $9,927 $6,552 $4,500 $3,441 $1,162
PROJECTED TOTAL PROPERTY TAXES $25,743 $16,836 $12,278 $8,935 $4,211
Projected Total Effective Tax Rate (as % of 1.7572% 1.7629% 1.6959% 1.7403% 1.4620%
Estimated Sales Price)
(i) Provided by Springbrook Realty Advisors, Inc. and consistent with the Appraisal. Sales prices are subj ect to upward or
downward adjustments based on market conditions.
~~~ Assessed value and ad valorem taxes inc orporate owner-occupied assessed value e xemption of $7,000.
(3) Based on Fiscal Year 2006-07 ad valorem rates. Rates are subject to change.
Source: David Taussig and Associates, Inc.; City of Irvine; Co unty Auditor/C ontroller's O ffice.
THE DISTRICT
General
The District was established in accordance with the Act and constitutes a legally constituted
governmental entity separate and apart from the City. The District consists of two non-contiguous
sites referred to in this Official Statement as Zone 1 and Zone 2. Zone 1 is located on the south side
of Edinger Avenue, east of Red Hill Avenue. Zone 1 is commonly referred to as Columbus Square.
Zone 2 is located on the west side of Harvard Avenue between Moffett Avenue to the north and
Warner Avenue to the south. The Peters Canyon Flood Channel is located on the west side of Zone
2. Zone 2 is commonly referred to as Columbus Grove.
OHS WES'r:260139836.5 23
The District consists of approximately 64.2 net acres of land which are anticipated to be
subject to the Special Tax in Zone 1 and 55.8 net acres of land which are anticipated to be subject to
the Special Tax in Zone 2. The District represents further development of the 1,533 gross acre
master planned community known as Tustin Legacy, which was formerly the Marine Corps Air
Station Tustin. See "Former Marine Corps Air Station Tustin." The Merchant Builders and Tustin
Villas plan to develop the property in the District with 1,454 residential units, of which 291 units will
be designated as affordable housing units. See "Property Ownership and Development."
An additional 5.8 gross acres in Zone 1 are currently owned by the United States
Government. It is anticipated that the United States Government will transfer such property to
Moffett Meadows, and after such transfer, the property will be annexed into the District. See "
Property Ownership and Development" for a description of Moffett Meadows. If such annexation
occurs, it is expected that Additional Bonds to finance Facilities will be issued pursuant to the
Indenture and an additional 86 residential units in the Astoria, Meriwether and Camden Place
projects will become subject to the Special Tax, of which 17 such units will be subject to the City's
affordable housing requirements.
Tustin Legacy
Tustin Legacy is an approximately 1,533 acre planned community in central Orange County.
The District represents an additional phase of development of Tustin Legacy. Tustin Legacy is the
City's proposed development for that portion of the former Marine Corps Air Station (MCAS) Tustin
located in the City and an additional four acre parcel acquired from The Irvine Company, dba Irvine
Community Development Company, LLC ("The Irvine Company"). Approximately 73 acres of the
original Air Station are located in the City of Irvine and are not a part of Tustin Legacy.
Tustin Legacy is currently planned to include 4,210 residential units, schools, parks, and
numerous business and commercial uses. Tustin Legacy is generally bounded by single-family
residential and business park uses to the north, light industrial and research and development uses to
the west, light industrial and commercial uses to the south, and residential uses to the east in the City
of Irvine. The Tustin Legacy project area is bounded by the Costa Mesa, Santa Ana, Laguna and San
Diego Freeways. Jamboree Road provides access to the Eastern Transportation Corridor. John
Wayne Airport is located approximately three miles to the south.
Summary of District Proceedings
Pursuant to the Act, the City Council of the City adopted Resolution No. 06- on June 5,
2006 stating its intention to establish the District and to authorize the levy of special taxes within the
boundaries of the District. On the same date, the City Council of the City also adopted Resolution
No. 06- stating its intention to have the District incur bonded indebtedness in an amount not to
exceed $65,000,000.
Following public hearings conducted pursuant to the provisions of the Act, the City Council
of the City adopted Resolution No. 06- on July 17, 2006 establishing the District. The City
Council of the City also adopted Resolution No. 06- determining the necessity to have the District
incur up to $65,000,000 of bonded indebtedness. Both resolutions called for a special election to
submit propositions to authorize the levy of the Special Tax and incurring of the bonded indebtedness
to the qualified electors of the District.
OHS WESr:260139836.5 24
At a special election held on July 17, 2006, the owners of the property within the boundaries
of the District authorized the District to incur bonded indebtedness in an amount not to exceed
$65,000,000 and approved the Rate and Method to pay the principal of and interest on all bonds
issued by the District.
Rate and Method of Apportionment
The District is legally authorized and has covenanted to cause the levy of the Special Taxes
in an amount determined according to a methodology, i. e., the Rate and Method, which the City
Council of the City and the qualified electors of the District have approved. The Rate and Method
apportions the total amount of Special Taxes to be collected among the taxable parcels in the District
as more particularly described herein. The District adopted the Rate and Method following a public
hearing and an election conducted pursuant to the provisions of the Act. The full text of the Rate and
Method is set forth in Appendix C hereto and capitalized terms used under this caption but not
defined shall have the meanings ascribed thereto in the Rate and Method.
The Rate and Method classifies all Taxable Property, i. e., all assessor's parcels in the District
not exempt pursuant to law or the Rate and Method, into four categories: Developed Property,
Taxable Public Property, Taxable Property Owner Association Property and Undeveloped Property.
The Rate and Method further classifies the Special Taxes as Special Tax A and Special Tax B. The
Special Tax A is the Special Tax levied to fund the Special Tax Requirement. The Special Tax B is
the Special Tax levied to fund the provision of certain services but is not pledged to the payment of
the Bonds. The Special Tax A is pledged to the payment of the Bonds and amounts levied in one
Zone will support the payment of the Bonds in the other Zone.
The amount of Special Taxes that the District may levy is limited by the Maximum Special
Tax rates set forth in the Rate and Method. Under the Rate and Method, the Maximum Special Tax
A for a parcel of Developed Property will be increased on each July 1, by an amount equal to two
percent of the amount in effect for the previous fiscal year.
Under the Rate and Method, each Zone has distinct classifications for Developed Property. In
Zone 1, Developed Property is further classified into 17 categories (each a "Land Use Class"): (a) six
categories of Single Family Detached Property (with such categories based on the square footage of
residential floor area), (b) six categories of Single Family Attached Property (with such categories
based on the square footage of residential floor area), (c) one category of Senior Units, (d) three
categories of Affordable Units (based on the income-level of the proposed owner) and (e) one
category of Non-Residential Property. For Zone 1, the Maximum Special Tax for Developed
Property for fiscal year 2006-07 for each Land Use Class for Maximum Special Tax A is shown in
the Rate and Method as Table 1 (set forth in Appendix C hereto). In Zone 2, Developed Property is
further classified into 13 Land Use Classes: (a) seven categories of Single Family Detached Property
(with such categories based on the square footage of residential floor area), (b) three categories of
Single Family Attached Property (with such categories based on the square footage of residential
floor area), (c) two categories of Affordable Units (based on the income-level of the proposed owner)
and (d) one category of Non-Residential Property. For Zone 2, the Maximum Special Tax for
Developed Property for fiscal year 2006-07 for each Land Use Class for Maximum Special Tax A is
shown in the Rate and Method as Table 2. In instances where an assessor's parcel contains more
than one Land Use Class, the Maximum Special Tax on such parcel will be the sum of the Maximum
Special Taxes for all Land Use Classes located on such parcel for the applicable Zone.
OHS WESr:260139836.5 25
Under the Rate and Method, the Maximum Special Tax A for Taxable Property Owner
Association Property, Taxable Public Property and Undeveloped Property is $40,377 per acre for
fiscal year 2006-07 and each fiscal year thereafter.
Commencing with fiscal year 2007-08 and each following fiscal year, the City Council of the
City, acting in its capacity as the legislative body of the District, will determine the Special Tax
Requirement and will levy the Special Tax A until the total Special Tax Levy A equals the Special
Tax Requirement. The Special Tax Requirement for Facilities is defined under the Rate and Method
as the amount required in any fiscal year for the District to pay the sum of (a) debt service on all
outstanding bonds or other debt issued by the District under the Act ("Outstanding Debt"),
(b) periodic costs on the Outstanding Debt, including but not limited to credit enhancement and
rebate payments thereon, (c) Administrative Expenses, (d) any amounts required to establish or
replenish any reserve funds for all Outstanding Debt, (e) reasonably anticipated Special Tax A
delinquencies based on the delinquency rate for the Special Tax A levy in the previous fiscal year,
and (f) the acquisition or construction of Authorized Facilities to the extent the inclusion of such
amount does not, increase the Special Tax A levy on Undeveloped Property. In arriving at the
Special Tax Requirement for Facilities, a credit is to be given for funds available to reduce the annual
Special Tax A levy.
The City Council of the City levies the Special Tax A in four steps, in the following order,
until the amount of the levy equals the amount needed to be collected to satisfy the Special Tax
Requirement for Facilities:
First: the Special Tax A is levied Proportionately on each assessor's parcel of Developed
Property at up to 100% of the applicable Maximum Special Tax A;
Second: if additional moneys are needed to satisfy the Special Tax Requirement for
Facilities after the first step has been completed, then the Special Tax A will be levied
proportionately on each assessor's parcel of Undeveloped Property at up to 100% of the Maximum
Special Tax A for Undeveloped Property;
Third: if additional moneys are needed to satisfy the Special Tax Requirement for
Facilities after the first and second steps have been completed, then the Special Tax A will be levied
Proportionately on each assessor's parcel of Taxable Property Owner Association at up to 100% of
the Maximum Special Tax A for Taxable Property Owner Association Property; and
Fourth: if additional moneys are needed to satisfy the Special Tax Requirement for
Facilities after the first, second and third steps have been completed, then the Special Tax A will be
levied Proportionately on each assessor's parcel of Taxable Public Property at up to the Maximum
Special Tax A for Taxable Public Property.
The term "Proportionately" as used in the above steps means (a) as applied to Developed
Property, that the ratio of the actual Special Tax A levy to the Maximum Special Tax A is equal for
all assessor's parcels of Developed Property in the District and (b) as applied to Undeveloped
Property, that the ratio of actual Special Tax A levy per acre to the Maximum Special Tax A per acre
is equal for all assessor's parcels of Undeveloped Property in the District.
The Rate and Method also provides that the Special Tax A will be levied on each assessor's
parcel for a period not to exceed forty years commencing with fiscal year 2006-07. Under the Rate
and Method, up to 31.01 acres of Property Owner Association Property and 0.13 acres of Public
OHS WESr:260139836.5 26
Property are exempt from the levy of Special Taxes in Zone 1 and up to 30.31 acres of Property
Owner Association Property and 0.16 acres of Public Property are exempt from the levy of Special
Taxes in Zone 2.
The Special Tax A obligation applicable to a lot within the District may be prepaid and the
obligation to pay any Special Tax A for such lot may be fully or partially satisfied as described in the
Rate and Method.
In order to obtain a building permit, a Merchant Builder may be required to prepay Special
Tax A (the "Special Tax A Prepayment") if there is a reduction in the total expected number of
dwelling units or if smaller residential units than were originally anticipated in the Rate and Method
are constructed within the District. Moneys from any such Special Tax A Prepayments will be
deposited in the Redemption Fund pursuant to the Indenture.
Former Marine Corps Air Station Tustin
Tustin Legacy was formerly a part of the Marine Corps Air Station Tustin. The Air Station
was in operation for approximately 50 years as a military base but was included in base closure
actions taken by the United States Government in 1991, 1993 and 1995. In 1992, the City began
preparing a reuse plan for the Air Station. In October 1996, the City Council of the City adopted the
"MCAS Tustin Specific Plan/Reuse Plan" (the "Reuse Plan") which addressed transportation,
housing, employment and recreational issues relating to the closure and subsequent reuse of the Air
Station property. Such Reuse Plan was subsequently amended in September 1998. Pursuant to the
Defense Base Closure and Realignment Act of 1990, the Air Station was closed on July 2, 1999.
In January 2001, the City Council of the City adopted a general plan land use designation
entitled "Marine Corps Air Station Tustin Specific Plan" for Tustin Legacy. The City also prepared a
Specific Plan detailing planning policies, regulations and implementation strategies to guide
development within Tustin Legacy. Approximately 1,153 acres of the former Air Station were
conveyed to the City pursuant to the "Agreement Between the United States of America and the City
of Tustin, California for the Conveyance of a Portion of the Former Marine Corp Air Station Tustin"
dated May 13, 2002 (the "Conveyance Agreement"). In February 2003, the City Council of the City
adopted the Specific Plan. The Specific Plan sets forth the zoning and entitlement framework for the
development of Tustin Legacy, which includes the District. The Specific Plan conforms to and
implements the Reuse Plan and the City's General Plan. Since its adoption in 2003, the Specific Plan
has been amended from time to time.
CEQA Compliance
The City (the lead agency responsible for processing and approving the master entitlement
and environmental review documents for the Air Station) and the United States Government prepared
a Joint Final Environmental Impact Statement and Environmental Impact Report for the Disposal and
Reuse of Marine Air Corps Station Tustin ("FEIS/EIR") in accordance with the National
Environmental Protection Act and the California Environmental Quality Act. The City adopted the
FEIS/EIR on January 21, 2001 and certified a supplement to the FEIS/EIlZ in December 2004 and an
addendum to the FEIS/EIR in April 2006 (as so supplemented from time to time, the "Final
FEIS/EIR"). In March 2001 the United States Government issued a Record of Decision approving
the FEIS/EIlZ and the Reuse Plan.
OHS WESr:260139836.5 27
The Final FEIS/EIR is a program environmental impact report ("program EIR") under
CEQA. By statute, additional future environmental review on any public or private development
activity may be necessary if (i) substantial changes are proposed in the project, (ii) substantial
changes occur with respect to the circumstances under which the project is undertaken, or (iii) new
information becomes available that was not known at the time the environmental impact report was
certified as complete. However, the program EIR may make subsequent, extensive environmental
review unnecessary. CEQA guidelines establish that where an EIR has been prepared and certified
for a program consistent with the requirements established thereby, any lead agency for a later
project pursuant to or consistent with such program should limit the EIR or negative declaration on
the later project to effects which (i) were not examined as significant effects on the environment in
the prior EIR, or (ii) are susceptible to substantial reduction or avoidance by the choice of specific
revisions in the project, by the imposition of conditions or other means.
The developers of property in Tustin Legacy, including the District, will be responsible for
adhering to all applicable provisions of the FEIS/EIR and all requirements of CEQA that might apply
to development activities by any such developer either on-site or off-site.
In conjunction with the approval of entitlements for the District, the City conducted an initial
environmental assessment and determined that no changes to the original FEIS/EIlZ were needed, and
included applicable mitigation measures in the project entitlements for the District. Accordingly, no
further CEQA action is required in connection with the development within the District.
Entitlement Status
The City approved the final tract maps for the District in February 2006. The property in the
District is subject to certain conditions of approval, and the conditions to approval which remain to
be satisfied by Moffett Meadows Partners, LLC, Lennar Homes or William Lyon Homes include
Severyns Road demolition and construction, off-site street signal and signalization retrofits, Edinger
median and right-of--way landscaping, miscellaneous landscaping and installation of sidewalks
adjacent to the District, improvement of the clubhouse in Zone 1 and parks, paseo connections, sale
of affordable homes and conveyance of homes to transitional housing providers and commencement
of construction on the Coventry Court project, the age-restricted condominium project which is
expected to be developed as a joint venture between Lennar Homes and William Lyon Homes. See
"THE PROJECT."
Property Ownership and Development
The following information regarding ownership and planned development of the District has
been provided by the respective Merchant Builders. The information provided under this caption has
been included because it may be considered relevant to an informed evaluation and analysis of the
Series 2007 Bonds and the District. No assurance can be given, however, that the proposed
development of the property within the District will occur, or that it will occur in a timely manner or
in the configuration or to the density described herein, or that the Merchant Builders, Tustin Villas,
any affiliates thereof, or any otherproperty owner described herein will or will not retain ownership
of its property within the District. No representation is made by the City or the District as to the
accuracy or adequacy of such information provided by the Merchant Builders.
As described under the caption, "Former Marine Corps Air Station Tustin," above, the
District represents a phase of residential development within Tustin Legacy consistent with the Reuse
OHS WESr:260139836.5 28
Plan. The following discussion describes the various entities involved with the development of the
District, commencing with the purchase of the property which constitutes the District from the
United States Government. In addition, the various development plans and financing plans of the
Merchant Builders, and the role of the Land Banks in the District, are described under this caption.
William Lyon Homes, Lennar Homes and KB Home are the Merchant Builders in the
District. Tustin Villas expects to sell the property it owns within the District to a joint venture
between Lennar Homes and William Lyon Homes to construct the Coventry Court age-restricted
condominium product. LandSource is Lennar Homes' Land Bank, MW Housing is KB Home's
Land Bank and ORA Astoria and ORA Ciara are William Lyon Homes' Land Banks in the District.
A land bank typically purchases real property and enters into an option agreement with a builder
whereby a builder has the option to purchase the real property from the land bank in a series of
phased takedowns. The builder typically pays for the on-site infrastructure improvements and all
general and special real estate taxes, assessment and other charges associated with the property even
though the property is owned by a land bank. The relationship between the Merchant Builders and
the Land Banks are further described below.
Moffett Meadows Partners, LLC. Moffett Meadow Partners, LLC ("Moffett Meadows"), is a
single-purpose affiliate of Lennar Homes and William Lyon Homes. Moffett Meadows was formed
by Lennar Homes and William Lyon Homes to acquire the property within the District from the
United States Government, to secure necessary entitlement approvals from the City and the City of
Irvine, to construct required infrastructure, to develop the property to a superpad condition (i. e., mass
grading and installation of street improvement and utilities to access the parcels, but excluding fine
grading, street improvements, utilities and landscape improvements within the parcels), and to sell
parcels to, or at the direction of, Lennar Homes and William Lyon Homes. After acquiring the
property comprising the District from the United States Government, Moffett Meadows sold the
property to William Lyon Homes, MW Housing, KB Home, Tustin Villas, ORA Astoria and ORA
Ciara. MW Housing, in turn, has sold all of the property it owned, except the property relating to the
Madison project, to LandSource.
OHS WESr:260139836.5 29
As of May 15, 2007, the property in the District was owned by the following entities:
Prouerty Owner # of Units
Zone 1 (Columbus Square):
William Lyon Homes
Lennar Homes
Tustin Villas
LandSource
ORA Astoria
Individual Homeowners
Subtotal
Location of Units
367 Mirabella, Verandas, Cambridge Lane,
Astoria
97 Gables, Meriwether, Camden
240 Coventry Court
83 Camden, Gables, Meriwether
3 8 Astoria
164 Gables, Meriwether, Camden, Astoria
989
Zone 2 (Columbus Grove):
William Lyon Homes
Lennar Homes
KB Home
MW Housing
LandSource
ORA Ciara
Individual Homeowners
Subtotal
Total
191 Ciara, Ainsley Park, Clarendon
33 Westbourne, Cantara
30 Madison
45 Madison, Westbourne, Cantara
6 Westbourne
19 Ciara
140 Ciara, Clarendon, Westbourne, Cantara,
Madison
465
1,454
Source: William Lyon Homes, Lennar Homes and KB Home.
A description of the Merchant Builders and their development experience follows, together
with a description of Tustin Villas:
William Lyon Homes, Inc. William Lyon Homes, Inc., a California corporation (previously
defined as "William Lyon Homes"), is a wholly owned subsidiary of William Lyon Homes, a
Delaware corporation ("William Lyon Corporation"). William Lyon Corporation's principal
executive offices are located in Newport Beach, California. William Lyon Corporation and its
subsidiaries are primarily engaged in designing, constructing and selling single family detached and
attached homes in California, Arizona and Nevada. Since the founding of its predecessor in 1956,
William Lyon Corporation has sold over 65,000 homes. William Lyon Corporation conducts its
homebuilding operations through five geographic divisions (Southern California, San Diego,
Northern California, Arizona and Nevada) including both wholly-owned projects and projects being
developed in joint ventures.
Home sales in California accounted for approximately 62% of William Lyon Corporation's
home deliveries in fiscal year 2006, which runs from January 1 through December 31. William Lyon
Corporation and its consolidated joint ventures delivered 2,887 homes in fiscal year 2006, compared
with 3,196 home deliveries in fiscal year 2005. Revenues from home sales were approximately
$1.479 billion in fiscal year 2006, generating a net income of approximately $74.8 million, compared
to revenues from home sales of approximately $1.749 billion with a net income of approximately
$190.6 million in fiscal year 2005. In fiscal year 2006, William Lyon Corporation's average home
selling price was approximately $512,200, with base sales prices ranging from approximately
OHS WES'r:260139836.5 30
$105,000 to approximately $1,725,000, compared to fiscal year 2005 where William Lyon
Corporation's average selling price was approximately $546,000.
In William Lyon Corporation's Form 10-Q filed on May 10, 2007, for the first quarter of
2007 (ended March 31, 2007), William Lyon Corporation reported that new home orders were 669,
an increase of 3% as compared to 647 for the same period in 2006. The number of homes closed for
the first quarter decreased 27.5% to 421 homes from 581 homes for the same time period in 2006. In
addition, the cancellation rate was 25% for the first quarter of 2007 (compared to 28% for the same
time period in 2006).
William Lyon Corporation was a publicly traded company with its stock listed on the New
York Stock Exchange (the "NYSE") under the symbol "WLS." However, William Lyon
Corporation recently converted to a privately-held company.
On March 17, 2006, General William Lyon, Chairman of the Board and Chief Executive
Officer of William Lyon Corporation, announced that he had commenced a tender offer to purchase
all outstanding shares of common stock of William Lyon Corporation not already owned by him, The
William Harwell Lyon 1987 Trust, or The William Harwell Lyon Separate Property Trust.
On May 18, 2006, General Lyon announced the completion of the tender offer and that he
had accepted for payment all shares validly tendered in the offer, a portion of which remain subject
to guaranteed delivery procedures. The shares tendered in the offer, together with the shares already
owned by General Lyon, The William Harwell Lyon 1987 Trust and The William Harwell Lyon
Separate Property Trust, represent over 90% of the outstanding shares of William Lyon Corporation.
Accordingly, upon completion of the purchase of the tendered shares (including those still subject to
guaranteed delivery procedures) and contribution of all shares held by General Lyon and the
aforementioned trusts into a newly formed Delaware corporation (the "Acquisition Corporation"),
the Acquisition Corporation would hold a sufficient number of shares to enable General Lyon to
effect ashort-form merger between the Acquisition Corporation and William Lyon Corporation
under Delaware law. The merger occurred on July 25, 2006, with William Lyon Corporation
continuing as the surviving corporation of the merger. At the time of the merger, each outstanding
share of William Lyon Corporation common stock (except for shares owned by the Acquisition
Corporation and by stockholders who properly exercised their appraisal rights in accordance with
Delaware law) was cancelled and converted into a right to receive $109 per share in cash without
interest.
Because it has outstanding publicly-traded notes, William Lyon Corporation is currently
subject to certain informational requirements of the Securities Exchange Act of 1934, as amended,
and in accordance therewith files reports and other information with the Securities and Exchange
Commission (the "SEC"). Such filings, particularly the Annual Report on Form 10-K and its most
recent Quarterly Report on Form 10-Q, may be inspected and copied at the public reference facilities
maintained by the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates. Such
files can also be accessed over the Internet at the SEC's website at www.sec.gov. In addition, the
aforementioned material may also be inspected at the office of the New York Stock Exchange at 20
Broad Street, New York, New York 10005. Copies of William Lyon Corporation's Annual Report
and related financial statements are available on its website at www.lyonhomes.com.
OHS WES'r:260139836.5 31
The Internet addresses and references to filings with the SEC are included for reference
purposes only, and the information on these Internet sites and on file with the SEC are not part of this
Official Statement and are not incorporated by reference herein.
Recent proj ects developed or under development by William Lyon Homes in Orange County,
California include the following:
Planned Estimated Estimated
Number of Square Average Estimated/Actual
Proiect Name Location Units Footage Selling Price Completion Date~l~
Lantana~~~ Irvine 102 2,417-2,803 $933,879 March 2009
Kensington~~~ Irvine 63 2,125-2,685 $739,000 Apri12008
Garland Park Irvine 166 1,355-1,971 $580,000 December 2006
Lombard Court Irvine 150 1,068-1,635 $510,000 December 2006
Ambridge Irvine 128 1,099-1,843 $510,000 June 2006
Sea Cove Huntington 106 1,619-2,693 $820,000 January 2006
Beach
Floralisa San Juan 80 3,363-4,437 $1,200,000 December 2007
Capistrano
Mirador San Clemente 76 3,705-4,763 $1,200,000 July 2006
Amarante LaderaRanch 53 2,646-3,713 $1,000,000 December 2006
Estrella Rosa San Juan 40 4,871-5,507 $1,600,000 December 2007
Capistrano
(i) Based on development status as of May 15, 2007.
~~~ Part of the Columbus Grove project in the City of Irvine.
Source: William Lyon Homes.
Lennar Homes of California, Inc. Lennar Homes of California, Inc., a California corporation
(previously defined as "Lennar Homes"), develops residential communities both within the Lennar
family of builders and through consolidated and unconsolidated partnerships in which Lennar Homes
maintains an interest. Lennar Homes is a California corporation based in Aliso Viejo, California, and
has been in the business of developing residential real estate communities in California since 1995.
Lennar Homes is an indirect, wholly owned subsidiary of Lennar Homes Inc., a Florida
corporation, which is a wholly owned subsidiary of Lennar Corporation, a Delaware corporation
("Lennar Corporation"), with headquarters in Miami, Florida. Lennar Corporation, founded in 1954
and publicly traded under the symbol "LEN" since 1971, is one of the nation's largest homebuilders.
In Southern California, some of the former brand names of companies acquired by Lennar
Corporation and now operating under the name Lennar Corporation include US Home and Greystone
Homes. As of November 30, 2006 (Lennar Corporation's fiscal year-end), Lennar Corporation and
its subsidiaries employed approximately 12,605 individuals, of whom approximately 9,018 were
involved in homebuilding and land development operations, and owned approximately 92,325 home
sites and had access to an additional approximately 189,279 home sites through options or
unconsolidated partnerships. For the fiscal year ended November 30, 2006, Lennar Corporation and
its subsidiaries delivered approximately 47,032 homes. Copies of Lennar Corporation's Annual
Report and related financial statements are on its website at www.lennar.com.
Representative master-planned communities in various stages of development in California
by Lennar Homes include: (i) Coto de Caza, an approximately 2,000 home development in South
OHS WES'r:260139836.5 32
Orange County acquired in March of 1996, (ii) Stevenson Ranch, which will consist of
approximately 5,700 homes at build-out, which is located in northeastern Los Angeles County, (iii)
Bressi Ranch, an approximately 500-acre mixed use community in Carlsbad, which opened in 2004,
(iv) Greer Ranch, an approximately 674 home gated community in Murrieta, which opened in the fall
of 2002, and (v) The Bridges at Rancho Santa Fe, gated residential enclave located in San Diego,
consisting of approximately 274 custom home sites and semi-custom homes in a private golf course
setting. The Coto de Caza development is substantially sold out, while the other four developments
are in varying stages of development and sales.
Recent projects developed or under development by Lennar Homes in Orange County,
California include the following:
Planned Estimated Estimated
Number of Ave. Square Average Estimated/Actual
Proiect Name Location Units Footage Selling Price Completion Date~l~
Alexandria Irvine 63 2,900 $1,171,000 October 2006
Savannah Irvine 180 1,300 $514,000~~~ Apri12008
Rosemoor Irvine 62 2,500 $850,000 February 2006
Verano San Clemente 144 1,500 $536,333 December 2005
Santiago St. Santa. Ana 108 1,802 $585,000 August 2008
Lofts
Rosemoor Irvine 62 2,500 $850,000 February 2006
~'~ Based on development status as of May 15, 2007.
~~~ Pricing excludes data for 27 affordable and transitional units
Source: Lennar Homes.
KB Home Coastal, Inc. KB Home Coastal Inc., a California corporation (previously defined
as "KB Home"), is a wholly-owned subsidiary of KB HOME, a Delaware corporation ("KB Home
Corporation"). KB Home Corporation has domestic operating divisions in California, Arizona,
Nevada, New Mexico, Colorado, Texas, Illinois, Indiana, Georgia, North Carolina, South Carolina,
Wisconsin and Florida. Founded in 1957, KB Home Corporation is a Fortune 500 company listed on
the New York Stock Exchange under the ticker symbol "KBH." Financial information about KB
Home Corporation is included in documents filed with the Securities and Exchange Commission,
particularly in its Annual Report on Form 10-K and its most recent quarterly report on Form 10-Q.
KB Home Corporation's Internet address is www.kbhome.com.
During the 2006 fiscal year, which runs from December 1 through November 30, KB Home
completed approximately 117 homes in southern California, and KB Home anticipates that it will
complete approximately 205 homes in southern California during the 2007 fiscal year.
Recent residential developments completed or under development by KB Home in Southern
California include the following:
OHS WES'r:260139836.5 33
Estimated
Planned Estimated Average
Number of Square Starting Estimated/Actual
'Proiect Name Location Units Footage Selling Price Completion Date~l~
Silverhawk Corona 25 3,021- 3,711 $650,000 January 2007
Summit
Sienna Ridge Corona 98 3,760 - 5,318 $1,121,000 February 2008
Bougainvillea Irvine 64 1,670 - 2,260 $725,000 June 2008
Northaven at Anaheim 38 2,000 - 2,595 $763,800 January 2007
Magnolia Lane
Southhaven at Anaheim 76 1
038 - 1
848 $434
800 November 2007
Magnolia Lane ,
, ,
Clementine Placentia 54 1,443 - 1,977 $520,000 October 2007
(i) As of May 15, 2007
Source: KB Home.
Tustin Villas Partners, LLC. Tustin Villas Partners, LLC, a Delaware limited liability
company (previously defined as "Tustin Villas"), was formed by Lennar Homes and William Lyon
Homes pursuant to the Limited Liability Company Agreement of Tustin Villas Partners, LLC, dated
October 15, 2002 and as amended on January 17, 2003 (as so amended, the "Tustin Villas LLC
Agreement"). Pursuant to the Tustin Villas LLC Agreement, Lennar Homes and William Lyon
Homes each possess a 50% interest in Tustin Villas, and Lennar Homes has been designated the
managing member. The Tustin Villas LLC Agreement specifically provides that Tustin Villas will
not build or sell vertical improvements. Thus, although Tustin Villas has acquired the property
planned for development of Coventry Court, the 240 unit, age-restricted condominium project, Tustin
Villas is expected to sell the parcel to a joint venture between Lennar Homes and William Lyon
Homes. It is expected that each member will have a 50% interest and Lennar Homes will be the
managing member. The new joint venture is expected to be formed in August 2007, and Lennar
Homes and William Lyon Homes further expect that a construction loan will be obtained shortly
after the formation of the joint venture.
A brief description of the Land Banks follows:
MW Housing Partners III, L.P. MW Housing Partners III, L.P., a California limited
partnership (previously defined as "MW Housing"), was formed pursuant to an Amended and
Restated Limited Partnership Agreement of MW Housing Partners III, L.P., dated September 28,
2004 (the "MW Housing Partnership Agreement"), by MW Housing Management III, LLC, a
California limited liability company, and the State of California Public Employees' Retirement
System. Pursuant to the MW Housing Partnership Agreement, MW Housing Management III, LLC
was designated the general partner. MW Housing, an investment venture involving MacFarlane
Partners and Weyerhaeuser Realty Investors in addition to Ca1PERS, invests in housing-related
projects throughout the United States. KB Home and not MW Housing will pay for the on-site
infrastructure improvements and all general and special real estate taxes, assessments and other
charges associated with the lots in the Madison project owned by MW Housing in the District. See
"KB Home's Development Plan" below.
OHS WES'r:260139836.5 34
LandSource Communities Development LLC. Effective February 27, 2007, Lennar
Corporation, certain of its affiliates and affiliates of LNR Property Corporation ("LNR") entered into
an agreement to admit MW Housing as a new member of LandSource Communities Development
LLC ("LandSource Communities"). The transaction closed February 27, 2007. MW Housing
contributed to LandSource Communities' wholly owned subsidiary, LandSource Holding Company,
LLC, a Delaware limited liability company (as previously defined, "LandSource"), cash and
property, including real property, valued at approximately $970 million, including MW Housing's
interest in the real property within the District (excluding the property in the Madison project). MW
Housing enjoys a 68% financial interest in LandSource and a 50% voting interest. Lennar Homes
will continue to serve as the co-managing member of LandSource and will be responsible for day-to-
day management of its residential interests. Lennar Homes and not LandSource will pay for the on-
site infrastructure improvements and all general and special real estate taxes, assessments and other
charges associated with the lots owned by LandSource in the District. See "-Lennar Homes'
Development Plan" below.
ORA Astoria, LLC. ORA Astoria, LLC, a California limited liability company (previously
defined as "ORA Astoria"), was formed by ORA Residential Investments I, L.P., a California limited
partnership and the sole member of ORA Astoria. ORA Astoria was formed in June 2005 for the
sole purpose of purchasing certain of the real property within the District from Moffett Meadows and
then providing an option to purchase such property to William Lyon Homes in a series of phased
takedowns. William Lyon Homes and not ORA Astoria will pay for the on-site infrastructure
improvements and all general and special real estate taxes, assessments and other charges associated
with the lots owned by ORA Astoria in the Astoria project in the District. See "William Lyon
Homes' Development Plan" below.
ORA Ciara, LLC. ORA Ciara, LLC, a California limited liability company (previously
defined as "ORA Ciara"), was formed by ORA Residential Investments I, L.P., a California limited
partnership and the sole member of ORA Ciara. ORA Ciara was formed in June 2005 for the sole
purpose of purchasing certain of the real property within the District from Moffett Meadows and then
selling such property to William Lyon Homes in a series of phased takedowns. William Lyon
Homes and not ORA Ciara will pay for the on-site infrastructure improvements and all general and
special real estate taxes, assessments and other charges associated with the lots owned by ORA Ciara
in the Ciara project in the District. See "William Lyon Homes' Development Plan" below.
William Lyon Homes 'Development Plan. William Lyon Homes is developing the Mirabella,
Verandas, Cambridge Lane, Astoria, Ciara, Ainsley Park and Clarendon projects in the District.
These seven projects account for 664 of the units within the District. The following table sets forth
the ownership of the land upon which units are proposed to be constructed between William Lyon
Homes, its Land Banks and individual homeowners as of May 15, 2007.
OHS WES'r:260139836.5 3 5
Planned Lots Owned
Number by a Lots Owned by Lots Owned by Expected Close
Proiect Name of Lots Land Bank William Lyon Homes Homeowners of Final Escrow
Mirabella 60 0 60 0 NA
Verandas 97 0 97 0 December 2008
Cambridge Lane 156 0 156 0 December 2008
Astoria 98 38~'~ 54 6 July 2009
Ciara 67 20~~~ 32 15 November 2009
Ainsley Park 84 0 84 0 October 2009
Clarendon 102 0 75 27 December 2007
Total 664 58 558 48
(i) ORA Astoria.
~~~ ORA Ciara.
Source: William Lyon Homes.
The lots for the Mirabella, Verandas, Cambridge Lane, Ainsley Park and Clarendon projects
were sold by Moffett Meadows to William Lyon Homes in July 2005. The lots for the Astoria and
Ciara projects were transferred by Moffett Meadows to the applicable Land Bank in July 2005.
Concurrently with the transfer to the Land Banks, William Lyon Homes entered into an option
agreement with the applicable Land Bank for the option to purchase the lots for the applicable project
(each an "ORA Option Agreement") in accordance with a takedown schedule. Under the terms of
the ORA Option Agreements, each Land Bank agreed to grant William Lyon Homes the exclusive
right and option to acquire the lots for the Astoria and Ciara projects in consideration for (i) monetary
considerations, including anon-refundable initial option payment, a project commitment fee, and
monthly option payments in arrears based on the average outstanding monthly investment of the
Land Bank, and (ii) performance by William Lyon Homes of its covenants and obligations set forth
in the ORA Option Agreements. In order to maintain its option, William Lyon Homes must purchase
the lots pursuant to the takedown schedule regardless of whether permitting requirements and other
entitlement requirements and the on-site infrastructure improvements have been completed by
William Lyon Homes. In addition, William Lyon Homes is obligated to pay all general and special
real estate taxes, assessments and other charges associated with the optioned property including any
association dues that would otherwise be payable by the respective Land Banks as the property
owner of record. If William Lyon Homes fails to exercise a takedown of lots in accordance with a
takedown schedule, then the applicable Land Bank has the option to terminate the ORA Option
Agreement for which William Lyon Homes failed to exercise the option and retain its initial option
payment, the monthly option payments and any other amount paid to the applicable Land Bank. In
such an event, such Land Bank, being an investor and not a homebuilder, would likely attempt to sell
such lots to another merchant builder. On November 10, 2006, William Lyon Homes and ORA
Astoria modified the takedown schedule in their ORA Option Agreement. As of May 15, 2007, and
pursuant to the revised takedown schedule, William Lyon Homes had completed four of the six
scheduled takedowns, representing a total of 60 lots, in the Astoria project. The takedowns for the
remaining 38 lots are scheduled to occur between August 2007 and December 2007. As of May 15,
2007, William Lyon Homes had completed five of the seven scheduled takedowns, representing a
total of 471ots, in the Ciara project. The takedowns for the remaining 20 lots are scheduled to occur
by August 2007.
Concurrently with the ORA Option Agreements, William Lyon Homes and ORA Astoria and
ORA Ciara entered into separate construction agreements, each dated July 29, 2005 (the
"Construction Agreements"), pursuant to which William Lyon Homes agreed to construct the on-site
infrastructure improvements necessary to develop the Astoria and Ciara projects. The on-site
OHS WES'r:260139836.5 36
infrastructure improvements consist of the construction of certain roads, fencing, sewers, curbs,
gutters, grading and water and utility lines in and adjacent to the parcels. In addition, William Lyon
Homes is obligated to improve the lots to a finished-lot state, at its sole cost, regardless of whether
William Lyon Homes purchases any of the lots pursuant to the ORA Option Agreements. In
connection therewith, William Lyon Homes is responsible for complying with and providing all
financial and other assurances required in connection with the tentative map conditions and all other
entitlements in order to complete the improvements and ultimately build and sell homes on the lots.
In the event William Lyon Homes defaults or materially fails to perform its obligations under the
applicable Construction Agreement, the applicable Land Bank may, among other options, terminate
the agreement and take possession of the site and of all materials owned by William Lyon Homes
and may finish the work by any other method such Land Bank deems expedient.
William Lyon Homes Financing Plan. As of Apri130, 2007, William Lyon Homes estimates
that it had expended $216.8 million on the costs of land acquisition, construction of homes and other
project costs. As set forth in Table 6 below, William Lyon Homes is expected to expend from 2007
through 2009 approximately $18.3 million in costs of land acquisition from and option payments to
ORA Astoria and ORA Ciara, $18.7 million in land improvements, $113.6 million to build homes in
the District, and $60.9 million in other project costs including property taxes and special assessments,
sales and marketing costs, costs of construction supervision and governmental fees. Future revenues
from the projects being developed by William Lyon Homes in the District are anticipated to total
approximately $414 million.
OHS WES'r:260139836.5 37
Table 6
City of Tustin
Community Facilities District No. 06-1
(Tustin Legacy/Columbus Villages)
Future Cash Requirements for William Lyon Homes
Sources:
Units Sold
Units Closed
Loan Borrowings
Sales Revenues
Total Sources
Uses:
Development Costs:
Land Cost
Land Improvements
Total House Construction
Total Property Tax & Special
Assessments
Total House Financing
Total Other Capitalized Costs
(Consultants & Insurance)
Total Sales and Marketing
Expenses
Other Expenses (including profit
participation
Total Development Costs
Loan Payback
Net Cash Flow
Cash Balance
Source: William Lyon Homes.
Actual to Date
As of Apri130, Forecast Year Forecast Year Forecast Year
2007 Ending 2007 Ending 2008 Ending 2009 Total
201 153 263 47 664
36 226 271 131 664
$216,414,141 $99,026,082 $80,178,247 $19,251,009 $414,869,479
29,425,780 138,448,253 190,186,227 85,058,577 443,118,838
$245,839,921 $237,474,335 $270,364,474 $104,309,586 $857,988,317
$117,664,393 $18,299,330
2 5, 6 99, 7 52 18, 017, 0 3 8
34,181,776 44,231,732
$ - $ -
673,758 (1,316)
53,620,146 15,746,030
$135,963,723
44,389,233
147,779,684
3,185,693 975,184
22,498,365 8,428,145
2,897,066 2,672,635
9,197,536 5,992,032
1,477,699 5,283,253
$216,802,280 $103,881,351
$ 29,037,642 $133,592,984
$ - $ -
(0) (0)
932,362 143, 806
7,754,036 1,448,318
1,699,111 510,334
8,231,251 2,506,473
10.011.894
$ 82,922,558
$176,870,569
$ 10,571,347
0
4,381,498
$24,735,143
$75,368,283
$ 4,206,160
(0~
5,219,045
40,128, 864
7,779,147
25,927,292
21.154.343
$428,341,331
$414,869,479
$ 14,777,507
0
William Lyon Homes is financing a portion of its development activities in the District with
funds borrowed from a number of revolving credit facilities (together, the "Credit Facilities").
William Lyon Homes has received a revolving line of credit from four credit facility providers
(together, the "Credit Facility Providers") as shown in the table below. Pursuant to the revolving line
of credit agreements for each Credit Facility (each, a "Loan Agreement"), the Credit Facility
Providers made a revolving loan to William Lyon Homes to finance the acquisition and development
of residential lots and the construction of residential homes for the Mirabella, Cambridge Lane,
Astoria, Ainsley Park and Clarendon projects. To evidence the loan for each Credit Facility, the
parties executed a promissory note (a "Note") for each Credit Facility payable to the order of the
applicable Credit Facility Provider. The repayment of a Note is secured by, among others things,
construction deeds of trust encumbering the land for each project financed with the proceeds of the
Credit Facility (the "Deed of Trust") and other security instruments. Each Deed of Trust encumbers
all real property originally subject to the Note for a Credit Facility, and any other property which is
thereafter financed under the particular Credit Facility. As a revolving loan, amounts available under
the Credit Facility vary from time to time pursuant to the provisions of each Loan Agreement, and at
any one time the amount available under the Credit Facility may not be sufficient to cover the costs
of the projects.
OHS WES'r:260139836.5 3 g
The Credit Facility, Deed of Trust, and other security instruments for each project contain
various events of default. With respect to each Credit Facility, those events of default also include
events associated with projects financed by the particular Credit Facility, which projects may include
projects unrelated to projects in the District. In the event of a default under such agreements, several
remedies are available to the aggrieved party, including a termination of further credit, acceleration
of amounts due (including all amounts under the Credit Facility for all projects secured by the Credit
Facility), and foreclosure of any property subject to the Deed of Trust, including the property in the
District subject to the Deed of Trust. Because a single Credit Facility secures several projects, the
availability of a revolving credit line to develop the projects within the District may be dependent on
events occurring with respect to projects outside of the District financed by the particular Credit
Facility. As homes are sold by William Lyon Homes, proceeds will be paid directly to the respective
loan beneficiaries in payment of individual release prices.
All projects will be financed in part with internal funding and home sales revenues. For all
projects except Verandas and Ciara, William Lyon Homes is also borrowing funds from commercial
lenders. The following table sets forth the source of funding for costs of land acquisition and
development and construction of residential homes in the District by William Lyon Homes.
Proiect Name External Source of Funding
Mirabella Revolving Line of Credit
Clarendon Revolving Line of Credit
Ainsley Park Revolving Line of Credit
Astoria Revolving Line of Credit
Cambridge Lane Revolving Line of Credit
Ciara None Currently or Expected
Verandas None Currently or Expected
Source: William Lyon Homes
Lender
Wachovia Financial Services, Inc.
JP Morgan Chase Bank, N.A.
JP Morgan Chase Bank, N.A.
California Bank & Trust
Comerica Bank
No Lender
No Lender
On May 31, 2006, Wachovia Financial Services, Inc. executed a commitment to finance the
development of the Mirabella project from a Borrowing Base Revolving Line of Credit Agreement,
dated February 14, 2006 (as amended from time to time, the "Wachovia Credit Facility"). The
commitment allows William Lyon Homes to finance the costs of land acquisition and development,
and the construction of the 60 homes in the Mirabella project. The initial revolving line of credit for
the Wachovia Credit Facility is $50,000,000; however, such amount may be increased by up to
$30,000,000 pursuant to the terms of the Wachovia Credit Facility. The advance extended by
Wachovia Financial Services, Inc. under the Wachovia Credit Facility for the Mirabella project is
$11,000,000. All outstanding loans and any other amounts due with respect to the Wachovia Credit
Facility or any other loan document are due and payable in full on February 14, 2008 (unless
otherwise extended pursuant to terms of the Wachovia Credit Facility). The outstanding principal
balance of the Wachovia Credit Facility as of May 15, 2007, was approximately $19,333,205 and the
remaining availability of the Wachovia Credit Facility was approximately $21,238,862.
On June 14, 2006, JP Morgan Chase Bank, N.A. (successor by merger to Bank One, N.A.)
executed a commitment to finance the development of the Clarendon and Ainsley Park projects from
a Borrowing Base Revolving Line of Credit Agreement, dated June 28, 2004 (as amended from time
to time, the "JP Morgan Credit Facility"). The commitment allows William Lyon Homes to finance
the costs of acquisition and development of the land, and construction of the 186 homes in the
Clarendon and Ainsley Park projects. The revolving line of credit for the JP Morgan Credit Facility
OHS WES'r:260139836.5 39
is $100,000,000. The advances extended by JP Morgan Chase Bank for the Clarendon and the
Ainsley Park projects are for $15.8 million and $19.9 million, respectively. All outstanding loans
and any other amounts due with respect to the JP Morgan Credit Facility or any other loan document
are due and payable in full on June 28, 2009 (unless otherwise extended pursuant to terms of the JP
Morgan Credit Facility). The outstanding principal balance of the JP Morgan Credit Facility as of
May 15, 2007 was approximately $38,293,605 and the remaining availability of the JP Morgan
Credit Facility was approximately $23,022,990.
California Bank and Trust executed a commitment to finance the development of the Astoria
project from a Revolving Line of Credit Agreement, dated September 16, 2004 (as amended from
time to time, the "California Bank Credit Facility"). The commitment allows William Lyon Homes
to finance the costs of acquisition and development of the land, and construction of the 98 homes in
the Astoria project. The revolving line of credit for the California Bank Credit Facility is
$70,000,000. All outstanding loans and any other amounts due with respect to the California Bank
Credit Facility or any other loan document are due and payable in full on September 21, 2009 (unless
otherwise extended pursuant to terms of the California Bank Credit Facility). As property is acquired
from ORA Astoria pursuant to the ORA Option Agreement for the Astoria project, William Lyon
Homes and California Bank and Trust will enter into one or more deeds of trust whereby the lien of
the deed of trust will attach to the newly-acquired property to secure the payment of all advances
made under the California Bank Credit Facility. As of May 15, 2007, the 54 lots owned by William
Lyon Homes for the Astoria project were encumbered by the lien of the deed of trust. If and when
William Lyon Homes acquires the remaining 38 lots of the Astoria project from ORA Astoria,
California Bank and Trust and William Lyon Homes will encumber such lots with the deeds of trust.
The outstanding principal balance of the California Bank Credit Facility as of May 15, 2007 was
approximately $29,369,631 and the remaining availability of the California Bank Credit Facility was
approximately $36,988,373.
Comerica Bank executed a commitment to finance the development of the Cambridge Lane
project from a Revolving Line of Credit Loan Agreement, dated March 8, 2006 (the "Comerica
Credit Facility"). The commitment will allow William Lyon Homes to finance the costs of
acquisition and development of the land, and construction of the homes for the Cambridge Lane
project. The initial revolving line of credit for the Comerica Credit Facility was $50,000,000. All
outstanding loans and any other amounts due with respect to the Comerica Credit Facility or any
other loan document are due and payable in full on April 3, 2009 (unless otherwise extended
pursuant to terms of the Comerica Credit Facility). The outstanding principal balance of the
Comerica Credit Facility as of May 15, 2007 was approximately $22,228,815 and the remaining
availability of the Comerica Credit Facility was approximately $27,771,184.
William Lyon Homes intends to finance its development activities for the remaining two
projects, Verandas and Ciara, through internal sources, and intends to use this source of funds,
together with the proceeds of future home sales, to finance acquisition costs, home construction
costs, carrying costs, and all other costs for the property until all of homes in the these projects have
been sold to individual homeowners. While William Lyon Homes believes that the sources of funds
described above will be available and sufficient to finance the development of its projects in the
District, no assurance can be given that the sources of financing available to William Lyon Homes
will be sufficient to complete property development and home construction as currently anticipated.
With respect to internal funding, while William Lyon Homes has made such internal financing
available in the past, there can be no assurance whatsoever of its willingness or ability to do so in the
OHS WESr:260139836.5 40
future. William Lyon Homes has no legal obligation of any kind to make any internal funds or
proceeds of house sales available or to obtain loans.
Lennar Homes' Development Plan. The 465 parcels subject to the Special Tax for the
Gables, Meriwether, Camden Place, Westbourne, and Cantara projects (the "Lennar Projects") as
well as the 85 parcels subject to the Special Tax for the Madison project, were sold by Moffett
Meadows to MW Housing in July 2005. Lennar Homes entered into an option agreement, dated July
28, 2005 (each, a "Lennar Option Agreement"), with MW Housing and deposited an amount equal to
15% of the purchase price for the parcels in each applicable project with MW Housing. Under the
terms of each Lennar Option Agreement, Lennar Homes had the option to purchase all of the lots in a
particular project through a series of phased takedowns. KB Home has assumed the rights and
obligations of Lennar Homes with respect to the Madison project. See "- KB Home's Development
Plan." Under terms of a Contribution and Formation Agreement (the "Contribution and Formation
Agreement"), among LandSource Communities and various Lennar affiliates, effective as of
February 27, 2007, MW Housing contributed its parcels subject to the Lennar Option Agreements to
LandSource. As part of the Contribution and Formation Agreement, the Lennar Option Agreements
were cancelled, the unapplied amounts of the deposits made pursuant to the Lennar Option
Agreements were paid to Lennar Homes and substitute option agreements (the "Substitute Option
Agreements") that require deposits in an amount equal to 10% of the purchase price for the parcels in
the Lennar Projects were executed. For the Gables project, Lennar Homes has five additional
takedowns, with the last takedown scheduled to occur in April 2008. For the Meriwether project,
Lennar Homes has two additional takedowns, with the last takedown scheduled to occur in August
2007. For the Camden Place project, Lennar Homes has two additional takedowns, with the last
scheduled to occur in May 2008. For the Cantara and Westbourne projects, Lennar Homes has
completed all of the takedowns.
In order to maintain its options under the Substitute Option Agreements, Lennar Homes must
purchase the lots pursuant to the revised takedown schedule regardless of whether the on-site
infrastructure improvements have been completed by Lennar Homes. Lennar Homes may accelerate
the takedown schedule as long as the lots are purchased in the order of priority indicated in the
applicable Substitute Option Agreement and are purchased for the purpose of constructing homes and
not for resale to another builder. Pursuant to the Substitute Option Agreements, Lennar Homes is
obligated to pay all general and special real estate taxes, assessments, and other charges associated
with the property including any association dues that would otherwise be payable by LandSource as
the property owner of record.
As of May 15, 2007, Lennar Homes has completed takedowns in the Lennar Projects as
follows:
OHS WES'r:260139836.5 41
Remaining Units
Unit Takedowns Owned by
Proiect Completed by Lennar LandSource
Gables 47 37
Meriwether 69 27
Camden 139 19
Westbourne 53 6
Cantara 68 0
Total 3 76 89
Source: Lennar Homes.
Under the terms of the subdivision development agreements, each dated June 9, 2005 (each a
"Lennar Development Agreement"), between Lennar Homes and MW Housing, Lennar Homes is
required to construct the on-site infrastructure improvements required to develop the various Lennar
Projects. In connection with the execution and delivery of the Contribution and Formation
Agreement each Lennar Development Agreement was assumed by LandSource. The on-site
infrastructure improvements consist of the streets, storm drains, utilities, park improvements, and
fine grading within the boundaries of those projects as well as the associated costs of fees and
permits. LandSource funds the cash flow requirements for such improvements on a monthly basis.
The cost of the on-site infrastructure improvements which are included in a particular Lennar
Development Agreement budget are included in the calculation of the purchase price for the property
pursuant to the related Substitute Option Agreement. Pursuant to each Lennar Development
Agreement, costs, if any, in excess of the budget as of the date of the Development Agreement are to
be paid by Lennar Homes. See "Lennar Homes Financing Plan" below for a description of how
Lennar Homes anticipates financing the Lennar Projects.
The following table sets forth the distribution of units between Lennar Homes, LandSource
and individual homeowners within the Lennar Projects as of May 15, 2007.
Planned Units Owned
Number by Units Owned by Units Owned by Expected Project
Proiect Name of Units~l~ LandSource Lennar Homes Homeowners Completion Date
Gables 84 37 8 39 December 2008
Meriwether 96 27 22 47 May 2008
Camden Place 158 19 67 72 September 2009
Westbourne 59 6 16 37 November 2007
Cantara 68 - 17 51 October 2007
Total 465 89 130 246
Source: Lennar Homes.
Lennar Homes' Financing Plan. As of April 30, 2007, Lennar Homes estimates that it had
expended $198.5 million on the construction of homes and other project costs, including costs of land
acquisition. As set forth in Table 7 below, Lennar Homes is expected to expend from 2007 through
2009, approximately an additional $25.3 million in costs of land acquisition from LandSource, $50.2
million to build homes in the District and $23.4 million in other project costs which include sales and
marketing costs, costs of construction supervision and governmental fees. Future revenues from the
Lennar Projects are anticipated to total approximately $151.3 million.
OHS WESr:260139836.5 42
Table 7
City of Tustin
Community Facilities District No. 06-1
(Tustin Legacy/Columbus Villages)
Future Cash Requirements for Lennar Homes
Actual to Date
As of Apri130, Forecast Year Forecast Year Forecast Year
2007 Ending 2007 Ending 2008 Ending 2009
Field Supervision & Overhead $ 1,580,799 $ 802,150 $ 622,225 $ 2,500
Land Acquisition 104,651,983 18,496,420 6,837,328 -
Land Improvements 10,028,695 5,435,178 2,982,983 213,834
House Construction 51,255,416 26,043,306 14,743,715 828,043
Interest Expense 14,485,264 6,618,791 4,515,563 174,774
Selling and Marketing 12,132,930 4,517,567 2,250,468 -
Other 4,428,842 2,273,597 1,551,301 59,676
Total $198,563,929 $64,187,009 $33,503,583 $1,278,827
Source: Lennar Homes
Lennar Homes currently intends to finance its development activities in the District through
internal sources, and intends to use this source of funds, together with the proceeds of future home
sales, to finance future land acquisition costs, home construction costs, carrying costs, and all other
costs for the property until all of the single-family homes in the Lennar Projects have been sold to
individual homeowners. One internal funding source potentially available to Lennar Homes is a $2.7
billion senior unsecured revolving credit facility (the "Credit Facility") between Lennar Corporation
and JP Morgan Chase Bank, N.A., as administrative agent, and the lenders named therein, that
matures in 2011. The Credit Facility also includes access to an additional $0.5 billion of financing
through an accordion feature, subject to additional commitments, for a maximum potential aggregate
commitment under the Credit Facility of $3.2 billion. At May 31, 2007, Lennar Corporation had no
outstanding balance under the Credit Facility. As a revolving loan, amounts available under the
Credit Facility vary from time to time, and at any one time the amount available may not be
sufficient to cover the costs of any particular project. Moreover, as a revolving loan of Lennar
Corporation, there is no guarantee that amounts available thereunder will be made available to
Lennar Homes for the Lennar Projects it is constructing in the District.
No assurance can be given that the sources of financing available to Lennar Homes will be
sufficient to complete property development and home construction as currently anticipated. While
Lennar Homes has made such internal financing available in the past, there can be no assurance
whatsoever of its willingness or ability to do so in the future. Lennar Homes has no legal obligation
of any kind to make any internal funds or proceeds of house sales available or to obtain loans. Other
than pointing out the willingness of Lennar Homes to provide internal financing in the past, Lennar
Homes has not represented in any way that it will do so in the future.
All detailed construction plans have been approved but not all construction bids have been
received for all of the remaining work to be undertaken by Lennar Homes with respect to the Lennar
Projects in the District. Therefore, there can be no assurance that the actual development costs will
not be greater than projected or be incurred sooner than projected by Lennar Homes. There can be
OHS WES'r:260139836.5 43
no assurance that projected sources of revenue will, in fact, be available as projected by Lennar
Homes.
KB Home's Development Plan. The 85 parcels in the Madison project were sold by Tustin
Villas to MW Housing in July 2005. Concurrently with the sale, Lennar Homes entered into an
option agreement, dated July 28, 2005 (the "Lennar Option Agreement"), with MW Housing and
deposited an amount equal to 15% of the purchase price for the 85 parcels with MW Housing. Under
terms of an agreement dated February 28, 2006 (the "KB Assumption Agreement"), KB Home
assumed the rights and obligations of Lennar Homes under the Lennar Option Agreement. Under the
terms of the Lennar Option Agreement, as amended by the First Amendment to Option Agreement,
dated November 20, 2006, and the Second Amendment to Option Agreement, dated January 20,
2007, KB Home has the option to purchase all of the lots in the Madison project through a series of
four phased takedowns through December 2007. In order to maintain its option, KB Home must
purchase the lots pursuant to the revised takedown schedule regardless of whether the on-site
infrastructure improvements have been completed by KB Home. KB Home may accelerate the
takedown schedule as long as the lots are purchased in the order of priority indicated in the revised
Lennar Option Agreement and are purchased for the purpose of constructing homes and not for resale
to another builder. Pursuant to the revised Lennar Option Agreement, KB Home is obligated to pay
all general and special real estate taxes, assessments, and other charges associated with the property
including any association dues otherwise payable by MW Housing. As of May 15, 2007, KB Home
has completed two of the scheduled takedowns for a total of 30 of the 85 lots in the Madison project.
Under the terms of a subdivision development agreement, dated July 28, 2005 (the "KB
Development Agreement"), between Lennar Homes and MW Housing, which was assumed by KB
Home pursuant to the KB Assumption Agreement, KB Home is required to construct the on-site
infrastructure improvements required to develop the Madison project. The on-site infrastructure
improvements consist of the streets, storm drains, utilities, park improvements, and fine grading
within the boundaries of the project as well as the associated costs of fees and permits. MW Housing
funds the cash flow requirements for such improvements on a monthly basis. The costs of the on-site
infrastructure improvements which are included in the KB Development Agreement budget are
included in the calculation of the purchase price for the property pursuant to the Lennar Option
Agreement. Pursuant to the KB Development Agreement, costs, if any, in excess of the budget as of
the date of the KB Development Agreement are to be paid by KB Home. See "--KB Home
Financing Plan" below for a description of how KB Home anticipates financing the Madison project.
KB Home's Financing Plan. As of May 15, 2007, KB Home estimates that it had expended
$40.9 million on the construction of homes and other project costs, including costs of land
acquisition. KB Home is expected to expend in 2007 and 2008, approximately an additional $18.6
million in costs of land acquisition from MW Housing, $15.2 million to build homes in the District
and $3 million in other project costs which include sales and marketing costs, costs of construction
supervision and governmental fees. Future revenues from the Madison project are anticipated to total
approximately $86 million.
KB Home currently intends to finance its development activities in the District through
internal sources, and intends to use this source of funds, together with the proceeds of future home
sales, to finance future land acquisition costs, home construction costs, carrying costs, and all other
costs for the property until all of the single-family homes in the Madison project have been sold to
individual homeowners. No assurance can be given that the sources of financing available to KB
Home will be sufficient to complete property development and home construction as currently
OHS WESr:260139836.5 44
anticipated. While KB Home has made such internal financing available in the past, there can be no
assurance whatsoever of its willingness or ability to do so in the future. KB Home has no legal
obligation of any kind to make any internal funds or proceeds of house sales available or to obtain
loans. Other than pointing out the willingness of KB Home to provide internal financing in the past,
KB Home has not represented in any way that it will do so in the future.
Coventry Court Development Plan and Financing Plan. The 240 home age-restricted
Coventry Court project, intended to be developed by a venture of Lennar Homes and William Lyon
Homes, has commenced construction. The site is anticipated to be conveyed by Tustin Villas to the
new venture in August 2007, with construction financing expected to be in place shortly after such
conveyance. Initial home sales are scheduled to commence in January 2008 and home closings are
scheduled to commence in March 2008. The venture intends to seek construction financing for
approximately 75% of the project construction costs. Remaining capital requirements will be met
equally by William Lyon Homes and Lennar Homes.
As indicated above, the preceding description of expected development by the Merchant
Builders is based on information included in the Appraisal and information provided to the District
by the Merchant Builders for purposes of this Official Statement. No representation is made as to the
experience, abilities or financial resources of the Merchant Builders or any other purchaser or
potential purchaser of property within the District or as to the likelihood that the Merchant Builders
or any other purchaser or potential purchaser of property within the District will be successful in
developing the purchased properties within the District The District has not made, nor will it make,
any investigation of the Merchant Builders or any other purchaser or potential purchaser of property
within the District. See "SPECIAL RISKFACTORSFailure to Develop. "
SPECIAL RISK FACTORS
The following is a discussion of certain risk factors which should be considered, in addition
to other matters set forth herein, in evaluating the investment quality of the Series 2007 Bonds. This
discussion does not purport to be comprehensive or definitive. The occurrence of one or more events
discussed herein could adversely affect the value of the property in the District. Moreover, the
occurrence of one or more of the events discussed herein could adversely affect the ability or
willingness of property owners in the District to pay their Special Taxes when due. Such a failure to
pay Special Taxes could result in the inability of the District to make full and punctual payments on
the Series 2007 Bonds.
Concentration of Ownership
As of May 15, 2007, the property within the District was owned by the Merchant Builders,
the Land Banks, Tustin Villas and 304 individual homeowners. See "THE DISTRICT -Property
Ownership and Development." The timely payment of debt service on the Series 2007 Bonds
depends upon the willingness and ability of the property owners to pay the Special Tax installments
when due. Conditions may affect the willingness of the property owners, or any successors, to pay
Special Tax installments on property and there is no assurance that the owners will pay such Special
Tax installments even if financially able to do so.
OHS WESr:260139836.5 45
Insufficiency of Special Taxes
Under the Rate and Method, the annual amount of Special Tax to be levied on each taxable
parcel in the District will be based on whether such parcel is publicly owned or otherwise exempt
from Special Taxes and whether such parcel is Developed Property or Undeveloped Property. See
"THE DISTRICT -Rate and Method of Apportionment." Accordingly, to the extent that
Undeveloped Property does not become Developed Property, the collection of a portion of the
Special Taxes will be dependent on the willingness and ability of the owners of Undeveloped
Property to pay such Special Taxes when due. See "-Failure to Develop," below, for a discussion of
the risks associated with Undeveloped Property. For Developed Property, the annual amount of
Special Tax to be levied is further dependent on the Land Use Class designation. See "THE
DISTRICT-Rate and Method of Apportionment."
The Rate and Method specifies afour-step process for determining the amount of the Special
Tax A to be levied in order to equal the amount needed to be collected to satisfy the Special Tax
Requirement. Basically, with respect to the Special Tax A, each category of Developed Property will
be taxed up to the applicable Maximum Special Tax A rates, until the amount levied equals the
Special Tax Requirement. Taxation of property owners at rates higher than presently anticipated
could have an impact on the willingness and ability of the property owners to pay such Special Taxes
when due. All property to be taxed is categorized as Developed Property, Taxable Public Property,
Taxable Property Owner Association Property or Undeveloped Property and becomes subject to tax
at the beginning of each fiscal year (July 1). See Appendix C -"Rate and Method of Apportionment
of Special Tax."
The Rate and Method exempts up to 31.14 acres of property classified as Property Owner
Association Property and Public Property from the Special Tax in Zone 1 and up to 30.47 acres of
property similarly classified from the Special Tax in Zone 2. The Act provides that if any property
within the District not otherwise exempt from the Special Tax is acquired by a public entity through a
negotiated transaction, or by gift or devise, the Special Taxes will continue to be levied on and
enforceable against the public entity that acquired the property. 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 is to be treated as if it
were a special assessment and be paid from the eminent domain award. The constitutionality and
operative effect of these provisions have not been tested in the courts. If for any reason property
subject to the Special Tax 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 Taxes, the Special Taxes will be reallocated to the remaining properties within the
District. This would result in the owners of such properties paying a greater amount of the Special
Tax and could have an adverse effect on the timely payment of the Special Tax.
The Series 2007 Bonds are Limited Obligations of the District
Funds for the payment of the principal of, and interest on, the Series 2007 Bonds are derived
from Special Taxes levied in the District. The Special Taxes collected by the District could be
insufficient to pay debt service on the Series 2007 Bonds due to non-payment of annual Special
Taxes or insufficient proceeds received from the sales of land within the District due to
delinquencies. The District's obligation with respect to delinquent Special Taxes is limited to the
institution of judicial foreclosure proceedings under the circumstances described in the Indenture.
See "SECURITY FOR THE SERIES 2007 BONDS -Covenant for Superior Court Foreclosure."
OHS WESr:260139836.5 46
The Special Taxes are not Personal Obligations of the Property Owners
The obligation to pay Special Taxes levied within the District does not constitute a personal
obligation of the current or subsequent owners of the property in the District. Enforcement of
Special Tax payment obligations by the District is limited to judicial foreclosure in the Orange
County Superior Court. See "SECURITY FOR THE SERIES 2007 BONDS -Covenant for
Superior Court Foreclosure." There is no assurance that any current or subsequent owner of a parcel
subject to Special Taxes will be able to pay the Special Taxes, or that such owner will choose to pay
such installments even though financially able to do so.
Special Tax Delinquencies
The Special Taxes will be billed to properties within the District on the ad valorem property
tax bills sent to owners of such properties. Such Special Tax installments will be due and payable
and bear the same penalties and interest for non-payment, as do ad valorem property tax installments.
Significant delinquencies in the payment of annual Special Tax installments, or delays in the
prosecution of foreclosure proceedings to collect such Special Taxes, could result in the depletion of
the Reserve Fund and default in payment of debt service on the Series 2007 Bonds. By way of
example, Lennar Homes previously owned and developed property within Community Facilities
District No. 2003-4 (Bluestone/Mapleton) of the City of Murrieta ("CFD No. 2003-4"). CFD No.
2003-4, located approximately 60 miles north of downtown San Diego, issued bonds (the "CFD No.
2003-4 Bonds") in 2004. For fiscal year 2005-06, the special tax was levied on 30 parcels in CFD
No. 2003-4 and six of such parcels were delinquent in the amount of $142,388.16, or approximately
60% of the total special tax levied in such fiscal year. As a result of such delinquencies, a draw on
the reserve fund for the CFD No. 2003-4 Bonds was necessary to make the March 1 and September
1, 2006, debt service payments on the CFD No. 2003-4 Bonds. Lennar Homes contends that it is not
responsible for the payment of the delinquent special taxes in CFD No. 2003-4. The delinquent
parcels previously owned by Lennar Homes in CFD No. 2003-4 have been sold to individual
homeowners. The March 1, 2007, debt service payment was made without an additional draw on the
reserve fund for the CFD No. 2003-4 Bonds. In preparation for foreclosure proceedings, a demand
letter was sent to Lennar Homes on May 24, 2006. The delinquencies remain outstanding. The City
of Murietta and Lennar Homes are working to resolve the delinquencies. See "-Disclosures to
Future Purchasers."
See "SECURITY FOR THE SERIES 2007 BONDS -Covenant for Superior Court
Foreclosure," for a discussion of the provisions that apply, and the procedures that the District is
obligated to follow, under the Indenture in the event of delinquencies in the payment of Special
Taxes. See "-Payments by FDIC or Other Federal Agencies" and "-Bankruptcy" below, for a
discussion of the policy of the Federal Deposit Insurance Corporation regarding the payment of
special taxes and limitations on the District's ability to foreclose on the lien of the Special Taxes in
certain circumstances.
OHS WESr:260139836.5 47
Failure to Develop Property
Land development operations are subject to comprehensive federal, State and local
regulations. Approval is required from various agencies in connection with the layout and design of
developments, the nature and extent of improvements, construction activity, land use, zoning, school
and health requirements, as well as numerous other matters. According to the Market Absorption
Consultant, build-out of the District is expected to occur by 2009. It is possible that the approvals
necessary to complete development of the property within the District will not be obtained on a
timely basis. Failure to obtain any such agency approval or satisfy any such government requirement
could adversely affect land development operations. In addition, there is a risk that future
governmental restrictions, including, but not limited to, governmental policies restricting or
controlling development within the District, will be enacted, and a risk that future land use initiatives
approved by the voters in the City could add more restrictions and requirements on development
within the District.
Moreover, there can be no assurance that the means and incentive to conduct land
development operations within the District will not be adversely affected by a deterioration of the
real estate market and economic conditions or future local, State and federal governmental policies
relating to real estate development, the income tax treatment of real property ownership, or the
national economy. See "- Risks Related to Current Market Conditions."
Undeveloped property is less valuable per acre than developed property, especially if there
are no plans to develop such property or if there are severe restrictions on the development of such
property. Undeveloped property also provides less security to the Owners of the Series 2007 Bonds
should it be necessary for the District to foreclose on undeveloped property due to the nonpayment of
the Special Taxes. Furthermore, an inability to develop the land within the District as currently
proposed would result in a level of diversification within the District that is less than currently
planned, which could expose the Owners of the Series 2007 Bonds to additional risk. The timely
payment of Special Taxes levied on undeveloped property depends primarily upon the ability and
willingness of landowners to pay such taxes when due. A slowdown in or cessation of the
development of land within the District could reduce the ability and willingness of such owners to
make Special Tax payments, and could greatly reduce the value of such property in the event it has to
be foreclosed upon to collect delinquent special taxes. See "-Bankruptcy" below for a discussion of
certain limitations on the ability of the District to pursue judicial foreclosure proceedings with
respect to taxpayers with delinquent Special Taxes.
Unconventional Mortgage Structures
One factor contributing to the housing boom in southern California from 2002 through the
first quarter of 2006 was the use of adjustable rate mortgages. Adjustable rate mortgages take
various forms, but commonly have low initial interest rates. As interest rates begin to rise and
adjustable rates are reset and result in higher interest rates, homeowners in the District who financed
the purchase of their homes with an adjustable rate mortgage can expect their monthly mortgage
payments to increase. Such interest rate adjustments may affect the ability or willingness of the
owners to not only meet their mortgage obligations but also pay their Special Tax installments. See
"SECURITY FOR THE BONDS -Covenant for Superior Court Foreclosure." In addition, it is
possible that as interest rates rise on new loans and adjustable rates are reset on existing loans, there
will be a decrease in home sale prices, resulting in recent homebuyers having loan balances in excess
of the value of their homes. While the majority of the homes in the District have not closed escrow
OHS WESr:260139836.5 4g
and thus the availability of unconventional mortgage structures for purchasers of homes within the
District has been limited, the foregoing conditions have contributed to a general softening of the
housing market in Southern California. Some economists believe that community facilities districts
are more vulnerable to a softening housing market because they are concentrated in a specific
geographic location. Bankruptcy filings by homeowners with delinquent Special Taxes would delay
the commencement and completion of foreclosure proceedings to collect delinquent Special Taxes.
See "-Bankruptcy" below.
Risks Related to Current Market Conditions
From 2002 through the first quarter of 2006, the Southern California housing market
experienced significant price appreciation with accelerating demand. The price acceleration was due,
at least in part, to the use of creative financing options (e.g., adjustable rate mortgages, interest only
payments) for individual home buyers. The use of creative financing options since 2002 was
supported at least in part by historically low interest rates which rose significantly in 2006. As the
market moves towards more traditional mortgage structures such as fixed rate loans, home prices and
land values are subject to softening. See "- Unconventional Mortgage Structures" above. In fact, the
Southern California housing market has weakened and, in the past several months, a number of
public home builders with significant operations in the Southern California housing market,
including Lennar Corporation, William Lyon Homes and KB Home Corporation have reported in
SEC filings slowing demand, an increase in the use of sales incentives by homebuilders, significant
increases in sales cancellation rates and increasing inventory build-ups (including increasing
investor/speculator resale inventory) amid rising interest rates. Specifically, in its SEC filing on from
10-K filed on February 8, 2007, Lennar Corporation reported a decrease in new home orders to
42,212 from 43,405 in comparison to the year ended November 30, 2005. For Lennar Corporation's
West region (California and Nevada), Lennar Corporation reported over a 9% decline in new home
orders for the year ended November 30, 2006 in comparison to the same time period in the prior
fiscal year. Lennar Corporation reported a cancellation rate of 29% in 2006, compared to 17% and
16%, respectively, in 2005 and 2004. Lennar Corporation's fiscal year runs from December 1 to
November 30 of each year. Lennar Corporation also reported signs of a slowing homebuilding
industry in many geographic markets.
In its SEC filing on form 10-Q filed on July 10, 2007, Lennar Corporation reported a
decrease in new home deliveries to 9,568 home orders for the three months ended May 31, 2007,
from 13,225 home deliveries for the three months ended May 31, 2006. For Lennar Corporation's
West region (California and Nevada), Lennar Corporation reported over a 36% decline in new home
deliveries for the three months ended May 31, 2007. In comparison to the same time period in the
prior fiscal years, Lennar Corporation reported a cancellation rate of 29% during the second quarter
of 2007, compared to 27% in the second quarter of 2006. Current market conditions could
significantly slow the rate of development in the District as home prices and land values soften
throughout Southern California. See "-Failure to Develop Property."
Appraised Values
The Appraisal was prepared for the purpose of estimating the Market Value of the property in
the District as of May 15, 2007, on the basis of certain assumptions. See the Appraisal included in
Appendix A hereto for a description of the analysis used and assumptions made by the Appraiser.
OHS WESr:260139836.5 49
No assurance can be given that the market values of property in the District set forth in the
Appraisal will be maintained during the period of time the Series 2007 Bonds are Outstanding. The
market values of the property in the District can be adversely affected by a variety of factors,
including, but not limited to, the occurrence of one or more of the special risk events discussed
herein. A decrease in the market values of property in the District may lessen the ability or
willingness of the owners of such property to pay Special Taxes when due. Prospective purchasers
of the Series 2007 Bonds should not assume that the land within the District could be sold for the
appraised amount described herein at the present time or at a foreclosure sale for delinquent Special
Taxes.
Bankruptcy
The payment of Special Taxes and the ability of the District to foreclose the lien of a
delinquent Special Tax may be limited by bankruptcy, insolvency, or other laws generally affecting
creditor's rights or by the laws of the State relating to judicial foreclosure.
The various legal opinions to be delivered concurrently with the delivery of Series 2007
Bonds (including Bond Counsel's approving legal opinion) will be qualified, as to the enforceability
of the various legal instruments, by bankruptcy, reorganization, insolvency, or other similar laws
affecting the rights of creditors generally.
Although bankruptcy proceedings would not cause the Special Taxes to become
extinguished, the amount of any lien on property securing the payment of delinquent Special Taxes
could be reduced if the value of the property were determined by the bankruptcy court to have
become less than the amount of the lien, and the amount of the delinquent Special Taxes in excess of
the reduced lien would then be treated as an unsecured claim by the court. Further, bankruptcy of a
property owner could result in a delay in prosecuting superior court foreclosure proceedings. Such a
delay would increase the likelihood of a delay or default in payment of the principal of, and interest
on, the Series 2007 Bonds and the possibility of delinquent tax installments not being paid in full.
The prosecution of foreclosure proceedings could also be delayed for other reasons, including
crowded court calendars and procedural delaying tactics.
Disclosures to Future Purchasers
The District has recorded a Notice of Special Tax Lien in the Office of the County Recorder
of the County. While title companies normally refer to such notices in title reports, there can be no
guarantee that such reference will be made or, if made, that a prospective homebuyer or lender will
consider such obligation for Special Taxes in the purchase of a home or the lending of money
secured thereby. Failure to disclose the existence of the Special Taxes or the full amount of the pro
rata share of debt on the land in the District may affect the willingness and ability of future owners of
land within the District to pay the Special Taxes when due.
Billing of Special Taxes
A special tax formula can result in a substantially heavier property tax burden being imposed
upon properties within a community facilities district than elsewhere in a city or county, and this in
turn can lead to problems in the collection of the special tax. In some community facilities districts
the taxpayers have refused to pay the special tax and have commenced litigation challenging the
special tax, the community facilities district and the bonds issued by the community facilities district.
OHS WESr:260139836.5 50
Under provisions of the Act, the Special Taxes are to be billed to the properties within the
District which were entered on the Assessment Roll of the County Assessor by January 1 of the
previous fiscal year on the regular property tax bills sent to owners of such properties. Such Special
Tax installments are due and payable, and bear the same penalties and interest for non-payment, as
do regular property tax installments. These 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 installment payments of Special
Taxes in the future. See "SECURITY FOR THE SERIES 2007 BONDS -Covenant for Superior
Court Foreclosure," for a discussion of the provisions which apply, and procedures which the District
is obligated to follow, in the event of delinquency in the payment of installments of Special Taxes.
Natural Disasters
The District, like all California communities, may be subject to unpredictable seismic
activity, fires due to the vegetation and topography, or flooding in the wake of fires or in the event of
unseasonable rainfall. There is significant potential for destructive ground-shaking during the
occurrence of a major seismic event. In addition, land susceptible to seismic activity maybe subject
to liquefaction during such an event. The occurrence of earthquakes, fires or flooding in or around
the District could result in substantial damage to both property and infrastructure in the District
which, in turn, could substantially reduce the value of such properties and could affect the ability or
willingness of the property owners to pay their Special Taxes when due.
Soil Conditions in the District
The soils in the District are characterized as poorly drained soils in alluvial fans, flood plains
or basins. The soils have slight to no erosion hazard but do have moderate to severe building site
development limitations. Moderate limitations can be overcome or minimized through planning and
design. Severe limitations require a major increase in construction effort, design or maintenance and
require remedial measures prior to construction to prevent damage to foundations, structures and
infrastructure. Such remedial measures include soil import and amendment and have been completed
in connection with the grading of the property within the District.
Hazardous Substances
The market value of the property in the District is subject to diminution upon the future
release or discovery thereon of a hazardous substance. In general, the owners and operators of a
parcel may be required by law to remedy conditions 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 "Superfund Act," is the most well
known and widely applicable of these laws, but California laws with regard to hazardous substances
are also stringent and similar. Under many of these laws, the owner (or operator) is obligated to
remedy a hazardous substance condition of property whether or not the owner (or operator) had
anything to do with creating or handling the hazardous substance. The effect therefore, should any of
the parcels be affected by a hazardous substance, would be to reduce the marketability and value 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.
OHS WES'r:260139836.5 5I
The value of the property within the District, as set forth in the Appraisal does not reflect the
presence of any hazardous substance or the possible liability of the owner (or operator) for the
remedy of a hazardous substance condition of the property. The District has not independently
verified, and is not aware, that any owner (or operator) of any of the parcels within the District has
such a current liability with respect to any such parcel. However, it is possible that such liabilities do
currently exist and that the District is not aware of them.
Further, it is possible that liabilities may arise in the future with respect to any of the land
within the District resulting from the existence, currently, 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 adversely affect the value of a parcel and the willingness or
ability of the owner of any parcel to pay the Special Tax installments.
Payments by FDIC or Other Federal Agencies
The ability of the District to collect the Special Taxes and interest and penalties specified by
State law, and to foreclose the lien of delinquent Special Taxes, may be limited in certain respects
with regard to properties in which the Federal Deposit Insurance Corporation (the "FDIC") or other
similar federal governmental agencies has or obtains an interest. On June 4, 1991, the FDIC issued a
Statement of Policy Regarding the Payment of State and Local Property Taxes (the "1991 Policy
Statement"). The 1991 Policy Statement was revised and superseded by a new Policy Statement
effective January 9, 1997 (the "Policy Statement"). The Policy Statement provides that real property
owned by the FDIC is subject to state and local real property taxes only if those taxes are assessed
according to the property's value, and that the FDIC is immune from real property taxes assessed on
any basis other than property value. According to the Policy Statement, the FDIC will pay its
property tax obligations when they become due and payable and will pay claims for delinquent
property taxes as promptly as is consistent with sound business practice and the orderly
administration of the institution's affairs, unless abandonment of the FDIC's interest in the property
is appropriate. The FDIC will pay claims for interest on delinquent property taxes owed at the rate
provided under state law, to the extent the interest payment obligation is secured by a valid lien. The
FDIC will not pay any amounts in the nature of fines or penalties and will not pay nor recognize liens
for such amounts. If any property taxes (including interest) on FDIC owned property are secured by
a valid lien (in effect before the property became owned by the FDIC), the FDIC will pay those
claims. The Policy Statement further provides that no property of the FDIC is subject to levy,
attachment, garnishment, foreclosure or sale without the FDIC's consent. In addition, the FDIC will
not permit a lien or security interest held by the FDIC to be eliminated by foreclosure without the
FDIC's consent.
The Policy Statement states that the FDIC generally will not pay non ad valorem taxes,
including special assessments, on property in which it has a fee interest unless the amount of tax is
fixed at the time that the FDIC acquires its fee interest in the property, nor will it recognize the
validity of any lien to the extent it purports to secure the payment of any such amounts. Special taxes
imposed under the Act and a special tax formula which determines the special tax due each year, are
specifically identified in the Policy Statement as being imposed each year and therefore covered by
the FDIC's federal immunity.
OHS WESr:260139836.5 52
The District is unable to predict what effect the FDIC's application of the Policy Statement
would have in the event of a delinquency on a parcel within the District in which the FDIC has an
interest, although prohibiting the lien of the FDIC to be foreclosed at a judicial foreclosure sale
would reduce or eliminate the persons willing to purchase a parcel at a foreclosure sale. Owners of
the Series 2007 Bonds should assume that the District will be unable to foreclose on any parcel
owned by the FDIC. As of December 31, 2006, no property in the District was owned by the FDIC.
Exempt Properties
Certain properties are exempt from the Special Taxes in accordance with the Rate and
Method (see Appendix C"Rate and Method of Apportionment of Special Tax"). In addition, the
Act provides that properties or entities of the federal, State 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, which is not otherwise exempt from the Special Tax,
will continue to be subject to the Special Tax. Property acquired by a public entity following a tax
sale or foreclosure based upon failure to pay taxes may become exempt from the Special Tax. In
addition, although the Act provides that if property subject to the Special Tax is acquired by a public
entity through eminent domain proceedings, the obligation to pay the Special Tax with respect to that
property is to be treated as if it were a special assessment. The constitutionality and operation of
these provisions of the Act have not been tested. If additional property is dedicated to the City or
other public entities, this additional property might become exempt from the Special Tax.
The Act further provides that no other properties or entities are exempt from the Special Tax
unless the properties or entities are expressly exempted in a resolution of consideration to levy a new
special tax or to alter the rate and method of apportionment of an existing special tax.
Cumulative Burden of Parity Taxes, Special Assessments
The Special Taxes constitute a lien against the parcels of land on which they have been
levied. Such lien is on a parity with all special taxes levied by other agencies and is co-equal to and
independent of the lien for general property taxes, regardless of when they are imposed upon the
same property.
The District does not have control over the ability of other entities to issue indebtedness
secured by ad valorem taxes, special taxes or assessments payable from all or a portion of the
property within the District. In addition, the owners of property within the District may, without the
consent or knowledge of the District, petition other public agencies to issue public indebtedness
secured by ad valorem taxes, special taxes or assessments. Any such special taxes may have a lien
on such property on a parity with the lien of the Special Taxes. See "SECURITY FOR THE SERIES
2007 BONDS -Direct and Overlapping Debt."
Value-to-Lien Ratios
The estimated value-to-lien ratios set forth herein under the caption "SECURITY FOR THE
SERIES 2007 BONDS -Estimated Value-to-Lien Ratios" are based on the appraised values of
property in the District as of May 15, 2007 and the direct and overlapping debt allocable to property
in the District as of May 1, 2007. No assurance can be given that such value-to-lien ratios will be
maintained over time. As discussed herein, many factors which are beyond the control of the District
could adversely affect the property values within the District. The District also has no control over
the amount of additional indebtedness that may be issued by other public agencies, the payment of
OHS WES'r:260139836.5 53
which, through the levy of a tax or an assessment, is on a parity with the Special Taxes. See "-
Cumulative Burden of Parity Taxes, Special Assessments" and "SECURITY FOR THE SERIES
2007 BONDS -Direct and Overlapping Debt." A decrease in the property values in the District or
an increase in the parity liens on property in the District, or both, could result in a lowering of the
value-to-lien ratios of the property in the District.
Limitations on Remedies
Remedies available to the Owners may be limited by a variety of factors and may be
inadequate to assure the timely payment of principal of and interest on the Series 2007 Bonds or to
preserve the tax-exempt status of the Series 2007 Bonds.
Bond Counsel has limited its opinion as to the enforceability of the Series 2007 Bonds and of
the Indenture to the extent that enforceability may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium, or others similar laws affecting
generally the enforcement of creditor's rights, by equitable principles, by the exercise of judicial
discretion and by limitations on remedies against public agencies in the State of California.
Additionally, the Series 2007 Bonds are not subject to acceleration in the event of the breach of any
covenant or duty under the Indenture. The lack of availability of certain remedies or the limitation of
remedies may entail risks of delay, limitation or modification of the rights of the Owners.
Right to Vote on Taxes Act
On November 5, 1996, the voters of the State approved Proposition 218, the so-called "Right
to Vote on Taxes Act." Proposition 218 added Articles XIIIC ("Article XIIIC") and XIIIIID to the
State Constitution, which contain a number of provisions affecting the ability of local agencies to
levy and collect both existing and future taxes, assessments, fees and charges.
Among other things, Section 3 of Article XIII states that "... the initiative power shall not be
prohibited or otherwise limited in matters of reducing or repealing any local tax, assessment, fee or
charge." The Act provides for a procedure, which includes notice, hearing, protest and voting
requirements to alter the rate and method of apportionment of an existing special tax. However, the
Act prohibits a legislative body from adopting any resolution to reduce the rate of any special tax or
terminate the levy of any special tax pledged to repay any debt incurred pursuant to the Act unless
such legislative body determines that the reduction or termination of the special tax would not
interfere with the timely retirement of that debt. Accordingly, although the matter is not free from
doubt, it is likely that Article XIIIC has not conferred on the voters the power to repeal or reduce the
Special Taxes if such reduction would interfere with the timely retirement of the Series 2007 Bonds.
It may be possible, however, for voters or the District to reduce the Special Taxes in a
manner which does not interfere with the timely repayment of the Series 2007 Bonds, but which does
reduce the maximum amount of Special Taxes that may be levied in any year below the existing
levels. Therefore, no assurance can be given with respect to the levy of Special Taxes for
Administrative Expenses. Furthermore, no assurance can be given with respect to the future levy of
the Special Taxes in amounts greater than the amount necessary for the timely retirement of the
Series 2007 Bonds.
The interpretation and application of Article XIIIC will ultimately be determined by the
courts with respect to a number of the matters discussed above, and it is not possible at this time to
OHS WESr:260139836.5 54
predict with certainty the outcome of such determination or the timeliness of any remedy afforded by
the courts. See "SPECIAL RISK FACTORS -Limitations on Remedies."
Loss of Tax Exemption
As discussed under the caption "CONCLUDING INFORMATION -Tax Exemption,"
interest on the Series 2007 Bonds could become includable in gross income for purposes of federal
income taxation retroactive to the date the Series 2007 Bonds were issued, as a result of acts or
omissions of the District in violation of the Code. Should such an event of taxability occur, the
Series 2007 Bonds are not subject to redemption and will remain Outstanding until maturity or until
redeemed under the optional redemption or mandatory redemption provisions of the Indenture.
Limited Liquidity of the Series 2007 Bonds
The District has not applied for, and does not expect to receive, a rating on the Series 2007
Bonds from any nationally recognized rating organization. This fact, coupled with the fact that the
Series 2007 Bonds are secured by Special Taxes payable by a relatively small number of landowners,
may limit the secondary market for, and therefore the liquidity of, the Series 2007 Bonds.
LITIGATION
At the time of delivery of and payment for the Series 2007 Bonds, the District will certify
that there is no action, suit, litigation, inquiry or investigation before or by any court, governmental
agency, public board or body served, or to the best knowledge of the District threatened, against the
District in any material respect affecting the existence of the District or the titles of its officers to
their respective offices or seeking to prohibit, restrain or enjoin the sale, execution or delivery of the
Series 2007 Bonds or challenging directly or indirectly the proceedings to levy the Special Taxes or
issue the Series 2007 Bonds.
CONTINUING DISCLOSURE
The District has covenanted for the benefit of the Owners of the Series 2007 Bonds to
provide certain financial information and operating data relating to the Series 2007 Bonds, the
District, ownership of the property in the District which is subject to the Special Tax, the occurrence
of delinquencies in payment of the Special Tax, and the status of foreclosure proceedings, if any,
respecting Special Tax delinquencies (the "District Disclosure Report"), and to provide notices of the
occurrence of certain enumerated events, if material. The financial information and operating data
will be provided annually. A form of the District's undertaking is included in Appendix F - "Forms
of Continuing Disclosure Agreements." The annual reports are to be provided by the District not
later than March 1 of each year, commencing March 1, 2008. The District Disclosure Reports will
be filed by the District with each Nationally Recognized Municipal Securities Information
Repository and with each State Repository, if any. These covenants have been made in order to
assist the Underwriters in complying with Securities and Exchange Commission Rule 15c2-12(b)(5)
(the "Rule"). The District has never failed to comply in all material respects with any previous
undertakings with regard to said Rule to provide annual reports or notices of material events.
The District is a legally constituted governmental entity separate and apart from the City.
However, pursuant to the Act, the City Council is the legislative body of the District. The City has
OHS WESr:260139836.5 55
never failed to comply in all material respects with any previous undertakings with regard to said
Rule to provide annual reports or notices of material events.
Pursuant to an agreement (each a "Developer Continuing Disclosure Agreement") with
Union Bank of California, N.A., in its capacity as Trustee and as Dissemination Agent, Lennar
Homes and William Lyon Homes has each covenanted for the benefit of the Owners of the Series
2007 Bonds to provide semi-annually certain financial information and operating data relating to
Lennar Homes, William Lyon Homes, their respective development plans and financing plans (each
a "Developer Disclosure Report"), and to provide notices of the occurrence of certain enumerated
events, if material, until such developer's obligation to so provide such information, data and notices
is otherwise terminated in accordance with the provisions of the applicable Developer Continuing
Disclosure Agreement. A form of each Developer Continuing Disclosure Agreement is included in
Appendix F - "Forms of Continuing Disclosure Agreements." Such information is to be provided by
Lennar Homes and William Lyon Homes not later than April 1 and October 1 of each year,
commencing October 1, 2007. The Developer Disclosure Reports are required to be filed by Lennar
Homes and William Lyon Homes with each Nationally Recognized Municipal Securities Information
Repository and with each State Repository, if any. These covenants have been made in order to
assist the Underwriters in complying with the Rule.
William Lyon Homes has not failed to comply in all material respects with any previous
undertakings with regard to said Rule to provide annual reports or notices of material events,
however, William Lyon Homes observes that it purchased certain property in Community Facilities
District No. 98-1 (Chapman Heights) of the City of Yucaipa (the "CFD") from a property owner who
had purchased such property from Chapman Heights, L.P., a Washington limited partnership.
Pursuant to developer continuing disclosure agreements relating to the CFD's 1998 Special Tax
Bonds, 1999 Special Tax Bonds and 2003 Special Tax Bonds, separate annual reports were due to be
filed by March 1, 2005 by Chapman Heights, L.P. Although William Lyon Homes was not obligated
to file such annual reports pursuant to the terms of the developer continuing disclosure agreements, it
filed such annual reports in June 2005.
Lennar Homes has numerous affiliates consisting of various entities that are developing or
have been involved in the development of numerous different projects in states throughout the
country. In California, Lennar Homes has 26 divisions that have been involved in the development
of projects over the past five years. Until recently Lennar Homes did not have a centralized process
to determine compliance with the Rule, and as a result it cannot be certain that it has identified all of
the undertakings that it has entered into or whether it has complied in all material respects with such
undertakings. However, a representative for each of the divisions has confirmed that with respect to
his or her division and solely to his or her knowledge, over the past five years, Lennar Homes has not
failed to comply in all material respects with any previous undertakings with regard to such Rule to
provide semi-annual reports or notices of material events in California, except for the following:
• In connection with covenants relating to financings in 1999, 2000 and 2002 by the
Association of Bay Area Governments for a project in the County of Contra Costa,
California, continuing disclosure reports due on April 1, 2005 were not provided on a
timely basis for Windemere Ranch Assessment District No. 1999-1. Windemere
BLC Land Company, LLC, a California limited liability company, whose managing
member is Lennar Homes, filed the continuing disclosure reports with the
dissemination agent on October 10, 2005; and
OHS WESr:260139836.5 56
• In connection with covenants relating to a 2001 financing for a project in the City of
Murrieta by Community Facilities District No. 2000-1 of the Murrieta Valley Unified
School District, a continuing disclosure report due on September 15, 2002 was not
provided on a timely basis. Greystone Homes, Inc., a Delaware corporation owned
by Lennar Homes, as successor to Pacific Century Homes, Inc., a California
corporation, filed the continuing disclosure report with the dissemination agent on
May 15, 2003.
To ensure that Lennar Homes or its affiliates does not continue to fail to comply in all
material respects with its undertakings with regard to the Rule to provide annual or semi-annual
reports or notices of material events, Lennar Corporation has instituted a policy (the "Policy")
regarding continuing disclosure obligations undertaken by any of its affiliates in connection with
municipal bond financings. Pursuant to the Policy, the division controller for each division of Lennar
Homes will be responsible for (1) ensuring that such division prepare and maintain a database of all
continuing disclosure obligations within such division, (2) ensuring that each project manager
responsible for submitting any annual or semi-annual report in connection with a continuing
disclosure obligation provides such report to the division controller for review prior to the applicable
disclosure deadline and (3) providing to the Deputy General Counsel of Lennar Homes in Aliso
Viejo, California, on June 1 and December 1 of each year, a copy of each continuing disclosure
agreement entered into by such division during the preceding six month period. The General
Counsel is responsible for preparing asemi-annual report detailing the disclosures of all divisions
within California, which will be available for review on June 30 and December 31 of each year.
CONCLUDING INFORMATION
Legal Opinions
The validity of the Series 2007 Bonds and certain other legal matters are subject to the
approving opinion of Orrick, Herrington & Sutcliffe LLP, Bond Counsel. Orrick, Herrington &
Sutcliffe LLP is acting as disclosure counsel in connection with the Series 2007 Bonds. Bond
Counsel undertakes no responsibility for the accuracy, completeness or fairness of this Official
Statement and Bond Counsel expresses no opinion as to the matters set forth herein. A complete
copy of the proposed form of Bond Counsel opinion is contained in Appendix D hereto and will
accompany the Series 2007 Bonds. Certain legal matters will be passed upon for the Underwriters by
Quint & Thimmig, LLP, San Francisco, California, and for the City and the District by Woodruff,
Spradlin & Smart, A Professional Corporation, Orange, California.
Financial Interest
Payment of the fees and expenses of Bond Counsel and Underwriters' counsel is contingent
upon the issuance and delivery of the Series 2007 Bonds. From time to time, Orrick, Herrington &
Sutcliffe LLP represents Stone & Youngberg LLC on matters unrelated to the Series 2007 Bonds.
Tax Exemption
In the opinion of Orrick, Herrington & Sutcliffe LLP, as bond counsel to the District ("Bond
Counsel"), based upon an analysis of existing laws, regulations, rulings and court decisions, and
assuming, among other matters, the accuracy of certain representations and compliance with certain
covenants, interest on the Series 2007 Bonds is excluded from gross income for federal income tax
OHS WESr:260139836.5 57
purposes under Section 103 of the Internal Revenue Code of 1986 (the "Code") and is exempt from
State of California personal income taxes. Bond Counsel is of the further opinion that interest on the
Series 2007 Bonds is not a specific preference item for purposes of the federal individual or
corporate alternative minimum taxes, although Bond Counsel observes that such interest is included
in adjusted current earnings when calculating corporate alternative minimum taxable income. A
complete copy of the proposed form of opinion of Bond Counsel is included herein as Appendix D.
To the extent the issue price of any maturity of the Series 2007 Bonds is less than the amount
to be paid at maturity of such Bonds (excluding amounts stated to be interest and payable at least
annually over the term of such Bonds), the difference constitutes "original issue discount," the
accrual of which, to the extent properly allocable to each beneficial owner thereof, is treated as
interest on the Series 2007 Bonds which is excluded from gross income for federal income tax
purposes and State of California personal income taxes. For this purpose, the issue price of a
particular maturity of the Series 2007 Bonds is the first price at which a substantial amount of such
maturity of the Series 2007 Bonds is sold to the public (excluding bond houses, brokers, or similar
persons or organizations acting in the capacity of underwriters, placement agents or wholesalers).
The original issue discount with respect to any maturity of the Series 2007 Bonds accrues daily over
the term to maturity of such Bonds on the basis of a constant interest rate compounded semiannually
(with straight-line interpolations between compounding dates). The accruing original issue discount
is added to the adjusted basis of such Bonds to determine taxable gain or loss upon disposition
(including sale, redemption, or payment on maturity) of such Bonds. Beneficial owners of the Series
2007 Bonds should consult their own tax advisors with respect to the tax consequences of ownership
of Series 2007 Bonds with original issue discount, including the treatment of beneficial owners who
do not purchase such Bonds in the original offering to the public at the first price at which a
substantial amount of such Bonds is sold to the public.
Series 2007 Bonds purchased, whether at original issuance or otherwise, for an amount
higher than their principal amount payable at maturity (or, in some cases, at their earlier call date)
("Premium Bonds") will be treated as having amortizable bond premium. No deduction is allowable
for the amortizable bond premium in the case of bonds, like the Premium Bonds, the interest on
which is excluded from gross income for federal income tax purposes. However, the amount of tax-
exempt interest received, and a beneficial owner's basis in a Premium Bond, will be reduced by the
amount of amortizable bond premium properly allocable to such beneficial owner. Beneficial
owners of Premium Bonds should consult their own tax advisors with respect to the proper treatment
of amortizable bond premium in their particular circumstances.
The Code imposes various restrictions, conditions and requirements relating to the exclusion
from gross income for federal tax purposes of interest on obligations such as the Series 2007 Bonds.
The District has made representations and covenanted to comply with certain restrictions, conditions
and requirements designed to ensure that interest on the Series 2007 Bonds will not be included in
federal gross income. Inaccuracy of these representations or failure to comply with these covenants
may result in interest on the Series 2007 Bonds being included in gross income for federal income
tax purposes, possibly from the date of issuance of the Series 2007 Bonds. The opinion of Bond
Counsel assumes the accuracy of these representations and compliance with these covenants. Bond
Counsel has not undertaken to determine (or to inform any person) whether any actions taken (or not
taken) or events occurring (or not occurring), or any other matters coming to Bond Counsel's
attention, after the date of issuance of the Series 2007 Bonds may adversely affect the value of, or the
tax status of interest on, the Series 2007 Bonds.
OHS WESr:260139836.5 5g
Although Bond Counsel is of the opinion that interest on the Series 2007 Bonds is excluded
from gross income for federal income tax purposes and is exempt from State of California personal
income taxes, the ownership or disposition of the Series 2007 Bonds, or the accrual or receipt of
interest on the Series 2007 Bonds, may otherwise affect a beneficial owner's federal, state or local
tax liability. The nature and extent of these other tax consequences will depend upon the particular
tax status of the beneficial owner or the beneficial owner's other items of income or deduction. Bond
Counsel expresses no opinion regarding any such other tax consequences.
Future legislative proposals, if enacted into law, clarification of the Code or court decisions
may cause interest on the Bonds to be subject, directly or indirectly, to federal income taxation or to
be subject to or exempted from state income taxation, or otherwise prevent Beneficial Owners from
realizing the full current benefit of the tax status of such interest. As one example, on May 21, 2007,
the United States Supreme Court agreed to hear an appeal from a Kentucky state court which ruled
that the United States Constitution prohibited the state from providing a tax exemption for interest on
bonds issued by the state and its political subdivisions but taxing interest on obligations issued by
other states and their political subdivisions. The introduction or enactment of any such future
legislative proposals, clarification of the Code or court decisions may also affect the market price for,
or marketability of, the Series 2007 Bonds. Prospective purchasers of the Series 2007 Bonds should
consult their own tax advisors regarding any pending or proposed federal or state tax legislation,
regulations or litigation, as to which Bond Counsel expresses no opinion.
The opinion of Bond Counsel is based on current legal authority, covers certain matters not
directly addressed by such authorities, and represents Bond Counsel's judgment as to the proper
treatment of the Series 2007 Bonds for federal income tax purposes. It is not binding on the Internal
Revenue Service ("IRS") or the courts. Furthermore, Bond Counsel cannot give and has not given
any opinion or assurance about the future activities of the District, or about the effect of future
changes in the Code, the applicable regulations, the interpretation thereof or the enforcement thereof
by the IRS. The District has covenanted, however, to comply with the requirements of the Code.
Bond Counsel's engagement with respect to the Bonds ends with the issuance of the Bonds,
and, unless separately engaged, Bond Counsel is not obligated to defend the District or the beneficial
owners regarding the tax-exempt status of the Series 2007 Bonds in the event of an audit examination
by the IRS. Under current procedures, parties other than the District and its appointed counsel,
including the beneficial owners, would have little, if any, right to participate in the audit examination
process. Moreover, because achieving judicial review in connection with an audit examination of tax-
exempt bonds is difficult, obtaining an independent review of IRS positions with which the District
legitimately disagrees, may not be practicable. Any action of the IRS, including but not limited to
selection of the Series 2007 Bonds for audit, or the course or result of such audit, or an audit of bonds
presenting similar tax issues may affect the market price for, or the marketability of, the Series 2007
Bonds, and may cause the District or the beneficial owners to incur significant expense.
Underwriting
The Series 2007 Bonds are being purchased by Citigroup Global Markets Inc., as
representative (the "Representative"), on behalf of Dain Rauscher Inc. doing business under the name
RBC Capital Markets and Stone & Youngberg LLC (together with the Representative, the
"Underwriters"). Pursuant to a Bond Purchase Agreement between the Representative and the
District (the "Purchase Agreement"), the Underwriters have agreed to purchase all of the Series 2007
Bonds for an aggregate purchase price of $ ,subject to certain conditions set forth in the
OHS WESr:260139836.5 59
Purchase Agreement. The purchase price reflects an underwriters' discount of $ and [net
original issue discount/premium of $ ]. The initial offering prices stated on the cover of
this Official Statement may be changed from time to time by the Underwriters. The Underwriters
may offer and sell the Series 2007 Bonds to certain dealers (including dealers depositing Series 2007
Bonds into investment trusts), dealer banks, banks acting as agent and others at prices lower than said
public offering prices.
No Ratings
The City has not made, and does not contemplate making, any application to any rating
agency for the assignment of a rating to the Series 2007 Bonds.
Miscellaneous
The quotations from, and the summaries and explanations of the Indenture and other statutes
and documents contained herein do not purport to be complete, and reference is made to such
documents and statutes for the full and complete statements of their respective provisions.
This Official Statement is submitted only in connection with the sale of the Series 2007
Bonds by the District. This Official Statement does not constitute a contract with the purchasers of
the Series 2007 Bonds.
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.
The execution and delivery of this Official Statement have been duly authorized by the
District.
CITY OF TUSTIN COMMUNITY
FACILITIES DISTRICT N0.06-1
(TUSTIN LEGACY/COLUMBUS
VILLAGES)
By:
Finance Director of the City of Tustin
OHS WESr:260139836.5 60
APPENDIX A
APPRAISAL
OHS WESr:260139836.5
APPENDIX B
SUMMARY OF MARKET ABSORPTION STUDY
OHS WESr:260139836.5
APPENDIX C
RATE AND METHOD OF APPORTIONMENT OF SPECIAL TAX
OHS WESr:260139836.5
APPENDIX D
PROPOSED FORM OF OPINION OF BOND COUNSEL
Upon delivery of the Series 2007 Bonds, Orrick, Herrington & Sutcliffe LLP, Bond Counsel,
proposes to render its final approving opinion with respect to the Series 2007 Bonds in substantially
the following form:
[Date of Delivery]
City of Tustin Community Facilities District No. 06-1
(Tustin Legacy/Columbus Villages)
300 Centennial Way
Tustin, California
City of Tustin
Community Facilities District No. 06-1
(Tustin Legacy/Columbus Villages)
Special Tax Bonds, Series 2007A
(Final Opinion)
Ladies and Gentlemen:
We have acted as bond counsel to the City of Tustin Community Facilities District No. 06-1
(Tustin Legacy/Columbus Villages) (the "Community Facilities District") in connection with the
issuance by the Community Facilities District of its Special Tax Bonds, Series 2007A (the "Series
2007 Bonds"), in the aggregate principal amount of $ ,pursuant to the provisions of the
Mello-Roos Community Facilities Act of 1982 (being Sections 53311 et seq. of the California
Government Code) and an Indenture, dated as of 1, 2007 (the "Indenture"), by and
between the Community Facilities District and Union Bank of California, N.A., as trustee (the
"Trustee"). Capitalized terms not otherwise defined herein shall have the meanings ascribed thereto
in the Indenture.
In such connection, we have reviewed the Indenture, the Tax Certificate of the Community
Facilities District, dated the date hereof (the "Tax Certificate"), opinions of counsel to the
Community Facilities District and the Trustee, certificates of the Community Facilities District, the
Trustee and others and such other documents, opinions and matters to the extent we deemed
necessary to render the opinions set forth herein.
The opinions expressed herein are based on an analysis of existing laws, regulations, rulings
and court decisions and cover certain matters not directly addressed by such authorities. Such
opinions may be affected by actions taken or omitted or events occurring after the date hereof.
Accordingly, this opinion is not intended to, and may not, be relied upon in connection with any such
actions, events or matters. We have not undertaken to determine, or to inform any person, whether
any such actions are taken or omitted or events do occur or any other matters come to our attention
after the date hereof. Our engagement with respect to the Series 2007 Bonds has concluded with
their issuance, and we disclaim any obligation to update this letter. We have assumed the
OHS WES'r:260139836.5 I)-1
genuineness of all documents and signatures presented to us (whether as originals or as copies) and
the due and legal execution and delivery thereof by, and validity against, any parties other than the
Community Facilities District. We have assumed, without undertaking to verify, the accuracy of the
factual matters represented, warranted or certified in the documents referred to in the second
paragraph hereof. Furthermore, we have assumed compliance with all covenants and agreements
contained in the Indenture and the Tax Certificate, including, without limitation, covenants and
agreements compliance with which is necessary to assure that future actions, omissions or events will
not cause the interest on the Series 2007 Bonds to be included in gross income for federal income tax
purposes. In addition, we call attention to the fact that the rights and obligations under the Series
2007 Bonds, the Indenture and the Tax Certificate and their enforceability may be subject to
bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other
laws relating to or affecting creditors' rights, to the application of equitable principles, to the exercise
of judicial discretion in appropriate cases, and to the limitations on legal remedies against
governmental entities such as the Community Facilities District in the State of California. We
express no opinion with respect to any indemnification, contribution, penalty, choice of law, choice
of forum, choice of venue, waiver or severability provisions contained in the foregoing documents,
nor do we express any opinion with respect to the plans, specifications, maps, reports or other
engineering or financial details of the proceedings, or upon the Rate and Method or the validity of the
Special Tax levied upon any individual parcel. Finally, we undertake no responsibility for the
accuracy, completeness or fairness of the Official Statement or other offering material relating to the
Series 2007 Bonds and express no opinion with respect thereto.
Based on and subject to the foregoing, and in reliance thereon, as of the date hereof, we are
of the following opinions:
1. The Series 2007 Bonds constitute valid and binding special obligations of the
Community Facilities District, payable solely from Net Special Tax Revenues and other assets
pledged therefor under the Indenture.
2. The Indenture has been duly executed and delivered by, and constitutes a valid and
binding obligation of, the Community Facilities District.
3. Interest on the Series 2007 Bonds is excluded from gross income for federal income
tax purposes under Section 103 of the Internal Revenue Code of 1986 and is exempt from State of
California personal income taxes. Such interest is not a specific preference item for purposes of the
federal individual or corporate alternative minimum taxes, although we observe that it is included in
adjusted current earnings when calculating corporate alternative minimum taxable income. We
express no opinion regarding other tax consequences related to the ownership or disposition of, or the
accrual or receipt of interest on, the Series 2007 Bonds.
Faithfully yours,
OHS WESr:260139836.5 D-2
APPENDIX E
SUMMARY OF INDENTURE
OHS WESr:260139836.5
APPENDIX F
FORMS OF CONTINUING DISCLOSURE AGREEMENTS
OHS WESr:260139836.5
APPENDIX G
BOOK-ENTRY ONLY SYSTEM
The following description of the procedures and record-keeping with respect to beneficial
ownership interests in the Series 2007 Bonds, payment of principal, interest and other payments on
the Series 2007 Bonds to DTC Participants or Beneficial Owners, confirmation and transfer of
beneficial ownership interests in such Series 2007 Bonds, 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 following information with respect to such
matters, but should instead confirm the same with DTC or the DTC Participants, as the case may be.
DTC will act as securities depository for the Series 2007 Bonds. The Series 2007 Bonds 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 bond certificate for each maturity of the Series 2007 Bonds will be issued for the
Series 2007 Bonds in the aggregate principal amount of such maturity, and will be deposited with
DTC.
DTC, the world's largest depository, is alimited-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 2 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 its participants ("Direct Participants")
deposit with DTC. DTC also facilitates 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 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, in turn, is owned by a number of Direct Participants of DTC and Members of the National
Securities Clearing Corporation, Fixed Income Clearing Corporation and Emerging Markets Clearing
Corporation (NSCC, FICC and EMCC, also subsidiaries of DTCC), as well as by the New York
Stock Exchange, Inc., the American Stock Exchange, LLC, and the National Association of
Securities Dealers, Inc. 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 Standard & Poor's highest rating: AAA. The DTC Rules
applicable to DTC and its Participants are on file with the Securities and Exchange Commission.
More information about DTC can be found at www. dtcc. com and www. dtc. org.
Purchases of the Series 2007 Bonds under the DTC system must be made by or through
Direct Participants, which will receive a credit for the Series 2007 Bonds on DTC's records. The
ownership interest of each actual purchaser of each Series 2007 Bond ("Beneficial Owner") is in turn
to be recorded on the Direct and Indirect Participants' records. Beneficial Owners will not receive
OHS WES'r:260139836.5 Cs-I
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 Series 2007 Bonds 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 Bonds, except in the event that use of the book-entry system for the Series 2007 Bonds is
discontinued.
To facilitate subsequent transfers, all Series 2007 Bonds deposited by Direct Participants
with DTC are registered in the name of DTC's partnership nominee, Cede & Co., or such other name
as maybe requested by an authorized representative of DTC. The deposit of Series 2007 Bonds with
DTC and their registration in the name of Cede & Co. do not effect any change in beneficial
ownership. DTC has no knowledge of the actual Beneficial Owners of the Series 2007 Bonds;
DTC's records reflect only the identity of the Direct Participants to whose accounts such Bonds 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.
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 maybe in effect from time to time.
Redemption notices shall be sent to Cede & Co. If less than all of the Series 2007 Bonds
within a maturity are being redeemed, DTC's practice is to determine by lot the amount of the
interest of each Direct Participant in such maturity to be redeemed.
Neither DTC nor Cede & Co. (nor such other DTC nominee) will consent or vote with
respect to the Series 2007 Bonds unless authorized by a Direct Participant in accordance with DTC's
procedures. Under its usual procedures, DTC mails an Omnibus Proxy to the issuer of securities
registered to Cede & Co. 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 the Series 2007
Bonds are credited on the record date (identified in a listing attached to the Omnibus Proxy).
Principal, premium, if any, and interest payments with respect to the Series 2007 Bonds 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 the District on a payable date in accordance with their
respective holdings shown on DTC 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
each Participant and not of DTC or its nominee, the Trustee, or the District, subject to any statutory
or regulatory requirements as may be in effect from time to time. Payment of principal and interest
to Cede & Co. (or such other nominee as may be requested by an authorized representative of DTC)
is the responsibility of the Trustee, disbursement of such payments to Direct Participants shall be the
responsibility of DTC, and disbursement of such payments to the Beneficial Owners shall be the
responsibility of Direct and Indirect Participants.
OHS WESr:260139836.5 CT-2
DTC may discontinue providing its services as securities depository with respect to the
Bonds at any time by giving reasonable notice to the Trustee. Under such circumstances, in the event
that a successor securities depository is not obtained, bond certificates are required to be printed and
delivered.
NOTWITHSTANDING THE FOREGOING, THE TRUSTEE, AS LONG AS A BOOK-
ENTRY-ONLY SYSTEM IS USED FOR THE SERIES 2007 BONDS, WILL SEND ANY NOTICE
OF REDEMPTION OR OTHER NOTICES ONLY TO CEDE & CO., OR ITS SUCCESSOR AS
DTC'S PARTNERSHIl' NOMINEE. ANY FAILURE OF CEDE & CO., OR ITS SUCCESSOR AS
DTC' S PARTNERSHIl' NOMINEE TO ADVISE ANY PARTICIl'ANT, OR OF ANY
PARTICIl'ANT TO NOTIFY ANY BENEFICIAL OWNER OF ANY NOTICE AND ITS
CONTENT OR EFFECT WILL NOT AFFECT THE VALIDITY OR SUFFICIENCY OF THE
PROCEEDINGS RELATING TO THE REDEMPTION OF THE SERIES 2007 BONDS CALLED
FOR REDEMPTION OR OF ANY OTHER ACTION PREMISED ON SUCH NOTICE.
OHS WES'r:260139836.5 G-3
INDENTURE
by and between
CITY OF TUSTIN
COMMUNITY FACILITIES DISTRICT NO. 06-1
(TUSTIN LEGACY/COLUMBUS VILLAGES)
and
UNION BANK OF CALIFORNIA, N.A.,
AS TRUSTEE
Dated as of 1, 2007
Relating to
City of Tustin
Community Facilities District No. 06-1
(Tustin Legacy/Columbus Villages)
Special Tax Bonds
OHS West:260069578.3
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS; EQUAL SECURITY
Section 1.01. Definitions ................................................................................................... 3
Section 1.02. Equal Security ............................................................................................ 11
ARTICLE II
THE BONDS
Section 2.01. Authorization of Bonds ............................................................................. . 12
Section 2.02. Terms of Series 2007 Bonds ...................................................................... . 12
Section 2.03. Transfer and Exchange of Bonds ............................................................... . 13
Section 2.04. Registration Books .................................................................................... . 14
Section 2.05. Execution of Bonds ................................................................................... . 14
Section 2.06. Authentication of Bonds ............................................................................ . 14
Section 2.07. Temporary Bonds ...................................................................................... . 14
Section 2.08. Bonds Mutilated, Lost, Destroyed or Stolen .............................................. . 15
Section 2.09. Book-Entry Bonds ..................................................................................... . 15
ARTICLE III
ISSUANCE OF BONDS; APPLICATION OF PROCEEDS; ADDITIONAL BONDS
Section 3.01. Issuance of Series 2007 Bonds .................................................................. . 18
Section 3.02. Application of Proceeds of the Series 2007 Bonds ..................................... . 18
Section 3.03. Costs of Issuance Fund .............................................................................. . 18
Section 3.04. Improvement Fund .................................................................................... . 19
Section 3.05. Conditions for the Issuance of Additional Bonds ....................................... . 20
Section 3.06. Procedure for the Issuance of Additional Bonds ........................................ . 21
Section 3.07. Additional Bonds ...................................................................................... . 22
ARTICLE IV
REDEMPTION OF BONDS
Section 4.01. Redemption of Series 2007 Bonds ............................................................. . 23
Section 4.02. Notice of Redemption ............................................................................... . 24
Section 4.03. Selection of Bonds for Redemption ........................................................... . 25
Section 4.04. Partial Redemption of Bonds ..................................................................... . 25
Section 4.05. Effect of Notice of Redemption ................................................................. . 26
ARTICLE V
SECURITY FOR BONDS; FLOW OF FUNDS; INVESTMENTS
Section 5.01. Pledge ....................................................................................................... . 27
OHS West:260069578.3 1
TABLE OF CONTENTS
Section 5.02. Special Tax Fund ............................................................................... ........ 27
Section 5.03. Bond Fund ......................................................................................... ........ 27
Section 5.04. Redemption Fund ............................................................................... ........ 28
Section 5.05. Reserve Fund ..................................................................................... ........ 28
Section 5.06. Rebate Fund ....................................................................................... ........ 29
Section 5.07. Administrative Expense Fund ............................................................. ........ 30
Section 5.08. Investment of Moneys ........................................................................ ........ 30
Section 5.09. State Reporting ................................................................................... ........ 31
ARTICLE VI
COVENANTS
Section 6.01. Collection of Special Tax Revenues ................................................... ........ 32
Section 6.02. Foreclosure ........................................................................................ ........ 32
Section 6.03. Punctual Payment ............................................................................... ........ 33
Section 6.04. Extension of Payment of Bonds .......................................................... ........ 33
Section 6.05. Against Encumbrances ....................................................................... ........ 33
Section 6.06. Power to Issue Bonds and Make Pledge .............................................. ........ 33
Section 6.07. Accounting Records and Financial Statements ................................... ........ 33
Section 6.08. Tax Covenants ................................................................................... ........ 34
Section 6.09. Continuing Disclosure ........................................................................ ........ 34
Section 6.10. Annual Reports to the California Debt and Investment Advisory
Commission ....................................................................................... ........ 34
Section 6.11. Non-Cash Payments of Special Taxes ................................................. ........ 35
Section 6.12. Reduction in Special Taxes ................................................................ ........ 35
Section 6.13. Further Assurances ............................................................................. ........ 35
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Section 7.01. Events of Default ............................................................................... ........ 36
Section 7.02. Foreclosure ........................................................................................ ........ 36
Section 7.03. Other Remedies .................................................................................. ........ 36
Section 7.04. Application of Net Special Tax Revenues After Default ..................... ........ 37
Section 7.05. Power of Trustee to Enforce ............................................................... ........ 37
Section 7.06. Bond Owners Direction of Proceedings .............................................. ........ 37
Section 7.07. Limitation on Bond Owners' Right to Sue .......................................... ........ 38
OHS West:260069578.3 11
TABLE OF CONTENTS
Section 7.08. Absolute Obligation ........................................................................... ........ 38
Section 7.09. Termination of Proceedings ................................................................ ........ 38
Section 7.10. Remedies Not Exclusive ..................................................................... ........ 39
Section 7.11. No Waiver of Default ......................................................................... ........ 39
ARTICLE VIII
TRUSTEE
Section 8.01. Duties and Liabilities of Trustee ......................................................... ........ 40
Section 8.02. Merger or Consolidation ..................................................................... ........ 41
Section 8.03. Liability of Trustee ............................................................................. ........ 41
Section 8.04. Right to Rely on Documents ............................................................... ........ 42
Section 8.05. Preservation and Inspection of Documents ......................................... ........ 43
Section 8.06. Compensation and Indemnification .................................................... ........ 43
ARTICLE IX
MODIFICATION OR AMENDMENT
Section 9.01. Amendments Permitted ...................................................................... ........ 44
Section 9.02. Effect of Supplemental Indenture ....................................................... ........ 45
Section 9.03. Endorsement of Bonds; Preparation of New Bonds ............................ ........ 45
Section 9.04. Amendment of Particular Bonds ......................................................... ........ 45
ARTICLE X
DEFEASANCE
Section 10.01. Discharge of Indenture ....................................................................... ........ 46
Section 10.02. Bonds Deemed To Have Been Paid .................................................... ........ 46
Section 10.03. Payment of Bonds After Discharge of Indenture ................................. ........ 47
ARTICLE XI
MISCELLANEOUS
Section 11.01. Special Obligations ............................................................................ ........ 48
Section 11.02. Successor Is Deemed Included in All References to Predecessor ........ ........ 48
Section 11.03. Limitation of Rights ........................................................................... ........ 48
Section 11.04. Waiver of Notice; Requirement of Mailed Notice ............................... ........ 48
Section 11.05. Destruction of Bonds .......................................................................... ........ 48
Section 11.06. Severability of Invalid Provisions ....................................................... ........ 48
Section 11.07. Notices ............................................................................................... ........ 49
Section 11.08. Evidence of Rights of Bond Owners ................................................... ........ 49
OHS West:260069578.3 111
TABLE OF CONTENTS
Section 11.09. Disqualified Bonds ...................................................... ............................... 50
Section 11.10. Money Held for Particular Bonds ................................ ............................... 50
Section 11.11. Funds and Accounts .................................................... ............................... 50
Section 11.12. Payment on Non-Business Days .................................. ............................... 51
Section 11.13. Waiver of Personal Liability ........................................ ............................... 51
Section 11.14. Interpretation ............................................................... ............................... 51
Section 11.15. Conflict with Act ......................................................... ............................... 51
Section 11.16. Conclusive Evidence of Regularity .............................. ............................... 51
Section 11.17. Execution in Several Counterparts ............................... ............................... 51
Section 11.18. Governing Laws .......................................................... ............................... 51
EXHIBIT A - FORM OF SERIES 2007 BOND ....................................... ............................. A-1
EXHIBIT B - PROJECT ......................................................................... ..............................B-1
OHS West:260069578.3 1V
INDENTURE
THIS INDENTURE (this "Indenture"), dated as of 1, 2007, is by and between
CITY OF TUSTIN COMMUNITY FACILITIES DISTRICT NO. 06-1 (TUSTIN
LEGACY/COLUMBUS VILLAGES), a community facilities district organized and existing under
and by virtue of the laws of the State of California (the "Community Facilities District'), and
UNION BANK OF CALIFORNIA, N.A., a national banking association organized and existing
under the laws of the United States of America, as trustee (the "Trustee").
WITNESSETH:
WHEREAS, the City Council of the City of Tustin has formed the Community Facilities
District under the provisions of the Mello-Roos Community Facilities Act of 1982 (the "Act');
WHEREAS, the Community Facilities District is authorized under the Act to levy special
taxes (the "Special Taxes") to pay for the costs of certain public facilities (the "Facilities") and to
authorize the issuance of bonds payable from the Special Taxes;
WHEREAS, in order to provide funds to finance certain of the Facilities, the Community
Facilities District desires to provide for the issuance of City of Tustin Community Facilities District
No. 06-1 (Tustin Legacy/Columbus Villages) Special Tax Bonds, Series 2007 A (the "Series 2007
Bonds"), in the aggregate principal amount of not to exceed $ ;
WHEREAS, the Community Facilities District desires to provide for the issuance of
additional bonds (the "Additional Bonds") payable from the Special Taxes on a parity with the
Series 2007 Bonds (the Series 2007 Bonds and any such Additional Bonds being collectively
referred to as the "Bonds");
WHEREAS, in order to provide for the authentication and delivery of the Bonds, to
establish and declare the terms and conditions upon which the Bonds are to be issued and secured
and to secure the payment of the principal thereof, premium, if any, and interest thereon, the
Community Facilities District has authorized the execution and delivery of this Indenture; and
WHEREAS, the Community Facilities District has determined that all acts and proceedings
required by law necessary to make the Bonds, when executed by the Community Facilities District,
authenticated and delivered by the Trustee and duly issued, the valid, binding and legal special
obligations of the Community Facilities District, and to constitute this Indenture a valid and binding
agreement for the uses and purposes herein set forth in accordance with its terms, have been done
and taken, and the execution and delivery of this Indenture has been in all respects duly authorized;
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in order to secure the
payment of the principal of, premium, if any, and the interest on all Bonds at any time issued and
outstanding under this Indenture, according to their tenor, and to secure the performance and
observance of all the covenants and conditions therein and herein set forth, and to declare the terms
and conditions upon and subject to which the Bonds are to be issued and received, and in
consideration of the premises and of the mutual covenants herein contained and of the purchase and
acceptance of the Bonds by the owners thereof, and for other valuable consideration, the receipt
OHS West:260069578.3
whereof is hereby acknowledged, the Community Facilities District does hereby covenant and agree
with the Trustee, for the benefit of the respective owners from time to time of the Bonds, as follows:
OHS West:260069578.3 2
ARTICLE I
DEFINITIONS; EQUAL SECURITY
Section 1.01. Definitions. Unless the context otherwise requires, the terms defined in
this Section shall for all purposes of this Indenture and of any certificate, opinion or other
document herein or therein mentioned, have the meanings herein specified.
"Acquisition Account" means the account by that name within the Improvement Fund
established and held by the Trustee pursuant to Section 3.04.
"Acquisition Agreement" means the Acquisition and Funding Agreement, dated as of the
date hereof, by and among the Community Facilities District, the City, Moffett Meadows Partners
LLC, and Lennar Homes of California, Inc., as originally executed or as the same may be amended
from time to time in accordance with its terms.
"Acquisition Project" means the portion of the Project described on Exhibit B hereto under
the caption "Acquisition Project."
"Act" means the Mello-Roos Community Facilities Act of 1982, constituting Sections
53311 et seq. of the California Government Code.
"Additional Bonds" means Bonds other than Series 2007 Bonds issued hereunder in
accordance with the provisions of Sections 3.05 and 3.06.
"Administrative Expense Fund" means the fund by that name established and held by the
Trustee pursuant to Section 5.07.
"Administrative Expenses" means costs directly related to the administration of the
Community Facilities District, consisting of the costs of computing the Special Taxes and preparing
the annual Special Tax schedules and the costs of collecting the Special Taxes, the costs of remitting
the Special Taxes to the Trustee, the fees and costs of the Trustee (including its legal counsel) in the
discharge of the duties required of it under this Indenture, the costs incurred by the Community
Facilities District in complying with the disclosure provisions of any continuing disclosure
undertaking and this Indenture, including those related to public inquiries regarding the Special Tax
and disclosures to Owners, the costs of the Community Facilities District related to an appeal of the
Special Tax, any amounts required to be rebated to the federal government in order for the
Community Facilities District to comply with Section 6.08, an allocable share of the salaries of the
staff of the City providing services on behalf of the Community Facilities District directly related to
the foregoing and a proportionate amount of general administrative overhead of the City related
thereto, and the costs of foreclosure of delinquent Special Taxes.
"Annual Debt Service" means, for each Bond Year, the sum of (a) the interest due on the
Outstanding Bonds in such Bond Year, assuming that the Outstanding Bonds are retired as
scheduled (including by reason of mandatory sinking fund redemptions), and (b) the principal
amount of the Outstanding Bonds due in such Bond Year (including any mandatory sinking fund
redemptions due in such Bond Year).
OHS West:260069578.3
"Appraised Value" means the value of all or any portion of the Taxable Property, as set
forth in a Qualified Appraisal Report prepared by a Qualified Appraiser.
"Assessed Value" means, with respect to all or any portion of the Taxable Property, as of
any date, the assessed value thereof, as such value is shown on the most recently equalized
assessment roll.
"Auditor" means the auditor of the County of Orange.
"Authorized Representative" means, with respect to the Community Facilities District, the
Finance Director of the City, and any other Person designated as an Authorized Representative of
the Community Facilities District in a Written Certificate of the Community Facilities District filed
with the Trustee.
"Available Special Taxes" means, for any Fiscal Year, the sum of (a) the amount of
Maximum Special Taxes that may be levied for such Fiscal Year, pursuant to the Rate and Method
and the Act, on all Taxable Property, less (b) the Projected Administrative Expenses in such Fiscal
Year.
"Average Annual Debt Service" means the average of the Annual Debt Service for all
Bond Years, including the Bond Year in which the calculation is made.
"Bond Counsel" means a firm of nationally recognized bond counsel selected by the
Community Facilities District.
"Bond Fund" means the fund by that name established and held by the Trustee pursuant to
Section 5.03.
"Bond Year" means each twelve-month period beginning on September 2 in each year and
extending to the next succeeding September 1, both dates inclusive, except that the first Bond Year
shall begin on the Closing Date and end on September 1, 2007.
"Bonds" means the City of Tustin Community Facilities District No. 06-1 (Tustin
Legacy/Columbus Villages) Special Tax Bonds issued hereunder, and includes the Series 2007
Bonds and any Additional Bonds.
"Book-Entry Bonds" means the Bonds of a Series registered in the name of the nominee of
DTC, or any successor securities depository for such Series of Bonds, as the registered owner
thereof pursuant to the terms and provisions of Section 2.09.
"Business Day" means a day which is not (a) a Saturday, Sunday or legal holiday in the
State of California, (b) a day on which banking institutions in the State of California, or in any state
in which the Office of the Trustee is located, are required or authorized by law (including executive
order) to close, or (c) a day on which the New York Stock Exchange is closed.
"Capitalized Interest Account" means the account by that name within the Bond Fund
established and held by the Trustee pursuant to Section 5.03.
OHS West:260069578.3 4
"Cede & Co." means Cede & Co., the nominee of DTC, and any successor nominee of
DTC with respect to a Series of Book-Entry Bonds.
"City "means the City of Tustin, a general law city organized and existing under and by
virtue of the laws of the State of California, and any successor thereto.
"City Council" means the City Council of the City.
"Closing Date" means the date upon which the Series 2007 Bonds are delivered to the
Original Purchaser, being , 2007.
"Code" means the Internal Revenue Code of 1986.
"Community Facilities District" means City of Tustin Community Facilities District No.
06-1 (Tustin Legacy/Columbus Villages), a community facilities district organized and existing
under and by virtue of the laws of the State of California, and any successor thereto.
"Construction Account" means the account by that name within the Improvement Fund
established and held by the Trustee pursuant to Section 3.04.
"Construction Project" means the means the portion of the Project described on Exhibit B
hereto under the caption "Construction Project."
"Corresponding Bond Year" means, with respect to any Fiscal Year, the Bond Year that
commences in such Fiscal Year.
"Costs of Issuance" means all items of expense directly or indirectly payable by or
reimbursable to the Community Facilities District relating to the authorization, issuance, sale and
delivery of the Bonds, including but not limited to printing expenses, rating agency fees, filing and
recording fees, initial fees, expenses and charges of the Trustee and its counsel, including the
Trustee's first annual administrative fee, fees, charges and disbursements of attorneys, financial
advisors, accounting firms, consultants and other professionals, fees and charges for preparation,
execution and safekeeping of the Bonds and any other cost, charge or fee in connection with the
original issuance of the Bonds.
"Costs of Issuance Fund" means the fund by that name established and held by the Trustee
pursuant to Section 3.03.
"Developed Property" has the meaning ascribed thereto in the Rate and Method.
"Developer" means Lennar Homes of California, Inc., and its successors, and William
Lyon Homes, Inc., and its successors, as the context requires.
"Developer Continuing Disclosure Agreement" means the applicable Continuing
Disclosure Agreement, dated as of the date hereof, by and between each Developer and the Trustee,
as originally executed and as it may be amended from time to time in accordance with the terms
thereof.
OHS West:260069578.3 S
"District Continuing Disclosure Agreement" means the Continuing Disclosure
Agreement, dated as of the date hereof, by and between the Community Facilities District and the
Trustee, as originally executed and as it may be amended from time to time in accordance with the
terms thereof.
"DTC" means The Depository Trust Company, alimited-purpose trust company organized
under the laws of the State of New York, and its successors as securities depository for any Series of
Book-Entry Bonds, including any such successor appointed pursuant to Section 2.09.
"Federal Securities" means (a) 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), and (b) obligations of any agency, department or
instrumentality of the United States of America the timely payment of principal of and interest on
which are fully guaranteed by the United States of America.
"Fiscal Year" means the period beginning on July 1 of each year and ending on the next
succeeding June 30, or any other twelve-month period hereafter selected and designated as the
official fiscal year period of the Community Facilities District designated in a Written Certificate of
the Community Facilities District delivered to the Trustee.
"Improvement Fund" means the fund by that name established and held by the Trustee
pursuant to Section 3.04.
"Indenture" means this Indenture, as originally executed and as it may be amended or
supplemented from time to time by any Supplemental Indenture.
"Independent Consultant" means any consultant or firm of such consultants selected by
the Community Facilities District and who, or each of whom (a) is generally recognized to be
qualified in the financial consulting field, (b) is in fact independent and not under the domination of
the Community Facilities District or the City, (c) does not have any substantial interest, direct or
indirect, with or in the Community Facilities District or the City, or any owner of real property in
the Community Facilities District, or any real property in the Community Facilities District, and (d)
is not connected with the Community Facilities District or the City as an officer or employee
thereof, but who may be regularly retained to make reports to the Community Facilities District or
the City.
"Interest Payment Dates" means March 1 and September 1 of each year, commencing
March 1, 2008, so long as any Bonds remain Outstanding.
"Maximum Annual Debt Service" means the largest Annual Debt Service for any Bond
Year, including the Bond Year the calculation is made.
"Moody's" means Moody's Investors Service, Inc., a corporation duly organized and
existing under and by virtue of the laws of the State of Delaware, and its successors and assigns,
except that if such entity shall be dissolved or liquidated or shall no longer perform the functions of
a securities rating agency, then the term "Moody's" shall be deemed to refer to any other nationally
recognized securities rating agency selected by the Community Facilities District.
OHS West:260069578.3 6
"Net Special Tax Revenues" means Special Tax Revenues, less amounts required to pay
Administrative Expenses.
"Office of the Trustee" means the principal corporate trust office of the Trustee in Los
Angeles, California, or such other office as maybe specified to the Community Facilities District by
the Trustee in writing.
"Other CFD Bonds" means, as of the date of determination, any and all bonds, notes or
other evidences of indebtedness, other than the Bonds, then outstanding issued under the Act and
payable at least partially from special taxes to be levied on parcels of Taxable Property.
"Ordinance" means any ordinance adopted by the City Council levying the Special Taxes.
"Original Purchaser" means the original purchaser of the Series 2007 Bonds from the
Community Facilities District.
"Outstanding" means, when used as of any particular time with reference to Bonds, subject
to the provisions of Section 11.09, all Bonds theretofore, or thereupon being, authenticated and
delivered by the Trustee under this Indenture except (a) Bonds theretofore canceled by the Trustee
or surrendered to the Trustee for cancellation, (b) Bonds with respect to which all liability of the
Community Facilities District shall have been discharged in accordance with Section 10.01,
including Bonds (or portions of Bonds) disqualified under Section 11.09, and (c) Bonds for the
transfer or exchange of or in lieu of or in substitution for which other Bonds shall have been
authenticated and delivered by the Trustee pursuant to this Indenture.
"Owner" means, with respect to a Bond, the Person in whose name such Bond is registered
on the Registration Books.
"Participant" means any entity which is recognized as a participant by DTC in the book-
entry system of maintaining records with respect to Book-Entry Bonds.
"Participating Underwriter" has the meaning ascribed thereto in the District Continuing
Disclosure Agreement and each Developer Continuing Disclosure Agreement.
"Payment Request" has the meaning ascribed to such term in the Acquisition Agreement.
"Permitted Investments" means the following, to the extent that such securities are
otherwise eligible legal investments of the Community Facilities District:
(a) Federal Securities;
(b) any of the following direct or indirect obligations of the following
agencies of the United States of America: (i) direct obligations of the Export-Import
Bank; (ii) certificates of beneficial ownership issued by the Farmers Home
Administration; (iii) participation certificates issued by the General Services
Administration; (iv) mortgage-backed bonds or pass-through obligations issued and
guaranteed by the Government National Mortgage Association, the Federal National
Mortgage Association, the Federal Home Loan Mortgage Corporation or the Federal
OHS West:260069578.3 7
Housing Administration; (v) project notes issued by the United States Department of
Housing and Urban Development; and (vi) public housing notes and bonds guaranteed by
the United States of America;
(c) interest-bearing demand deposit accounts or time deposits (including
certificates of deposit) in a federal or state chartered bank (including the Trustee and its
affiliates) or a state licensed branch of a foreign bank or a state or federal association (as
defined in Section 5102 of the California Financial Code), provided that (i) the unsecured
short-term obligations of such commercial bank or savings and loan association shall be
rated Al or better by S&P, or (ii) such demand deposit accounts or time deposits shall be
fully insured by the Federal Deposit Insurance Corporation;
(d) commercial paper rated in the highest short-term rating category by S&P,
issued by corporations which are organized and operating within the United States of
America, and which matures not more than 180 days following the date of investment
therein;
(e) bankers acceptances, consisting of bills of exchange or time drafts drawn
on and accepted by a commercial bank whose short-term obligations are rated in the
highest short-term rating category by S&P, which mature not more than 270 days
following the date of investment therein;
(~ obligations the interest on which is excludable from gross income pursuant
to Section 103 of the Code and which are rated A or better by S&P;
(g) obligations issued by any corporation organized and operating within the
United States of America having assets in excess of $500,000,000, which obligations are
rated A or better by S&P;
(h) money market funds which are rated Am or better by S&P, including
funds for which the Trustee and its affiliates provide investment advisory or other
management services;
(i) an investment agreement or guaranteed investment contract with, or
guaranteed by, a financial institution or corporation, the long-term unsecured obligations
of which are or, in the case of an insurance company, the long term financial strength of
which is, rated "AA-" or better by S&P at the time of initial investment; provided, that
the investment agreement shall be subject to a downgrade provision with at least the
following requirements:
(1) the agreement shall provide that within ten Business Days after the
financial institution's long-term unsecured credit rating has been withdrawn,
suspended, or reduced below "AA--" by S&P (such events referred to as "rating
downgrades") the financial institution shall give notice to the Community Facilities
District and the Trustee and, within such ten-day period, and for as long as the rating
downgrade is in effect, shall deliver in the name of the Community Facilities District
or the Trustee Federal Securities with an aggregate current market value equal to at
least 105% of the principal amount of the investment agreement invested with the
OHS West:260069578.3 g
financial institution at that time, and shall deliver additional Federal Securities as
needed to maintain an aggregate current market value equal to at least 105% of the
principal amount of the investment agreement within three days after each
evaluation date, which shall be at least weekly, and
(2) the agreement shall provide that, if the financial institution's long-
term unsecured credit rating is reduced below "A-" by S&P, the financial institution
shall give notice of the downgrade to the Community Facilities District and the
Trustee within five Business Days, and the Trustee may, upon five Business Days'
written notice to the financial institution, withdraw all amounts invested pursuant to
the investment agreement, with accrued but unpaid interest thereon to the
withdrawal date, and terminate the agreement.
(j) repurchase agreements with (i) any domestic bank, or domestic branch of
a foreign bank, the long-term debt of which is rated at least "A" by S&P and Moody's;
(ii) any broker-dealer with "retail customers" or a related affiliate thereof, which broker-
dealer has, or the parent company (which guarantees the provider) of which has, long-
term debt rated at least "A" by S&P and Moody's, which broker-dealer falls under the
jurisdiction of the Securities Investors Protection Corporation; or (iii) any other entity (or
entity whose obligations are guaranteed by an affiliate or parent company) rated at least
"A" by S&P and Moody's, provided that:
(1) the market value of the collateral is maintained at levels and upon
such conditions as would be acceptable to S&P and Moody's to maintain an "A"
rating in an "A" rated structured financing (with a market value approach);
(2) the Trustee or a third party acting solely as agent therefor or for the
Community Facilities District (the "Holder of the Collateral") has possession of the
collateral or the collateral has been transferred to the Holder of the Collateral in
accordance with applicable state and federal laws (other than by means of entries on
the transferor's books);
(3) the repurchase agreement shall state and an opinion of counsel shall
be rendered at the time such collateral is delivered that the Holder of the Collateral
has a perfected first priority security interest in the collateral, any substituted
collateral and all proceeds thereof (in the case of bearer securities, this means the
Holder of the Collateral is in possession);
(4) all other requirements of S&P and Moody's in respect of repurchase
agreements shall be met; and
(5) the repurchase agreement shall provide that if during its term the
provider's rating by either S&P or Moody's is withdrawn or suspended or falls
below "A-" or "A3" respectively, the provider must immediately notify the
Community Facilities District and Trustee and the provider must, at the direction of
the Community Facilities District or the Trustee, within 10 days of receipt of such
OHS West:260069578.3 9
direction, repurchase all collateral and terminate the agreement, with no penalty or
premium to the Community Facilities District or Trustee.
"Person" means an individual, corporation, limited liability company, firm, association,
partnership, trust, or other legal entity or group of entities, including a governmental entity or any
agency or political subdivision thereof.
"Project" means the facilities authorized to be financed by the Community Facilities
District, as more particularly described in the Resolution of Formation.
"Projected Administrative Expenses" means (a) for Fiscal Year 2006-07, $ ,
and (b) for any subsequent Fiscal Year, the amount resulting from increasing the Projected
Administrative Expenses on each July 1, from and including July 1 immediately following the end
of the then current Fiscal Year to and including the July 1 in such Fiscal Year by 2% of the amount
in effect for the previous Fiscal Year.
"Qualified Appraisal Report" means a real estate appraisal report which (a) has been
prepared by a Qualified Appraiser, (b) uses a date of value that is no earlier than three months prior
to the date on which the value reported in such appraisal report is used in accordance with the
provisions of this Indenture, (c) is prepared in accordance with the applicable standards of the
Appraisal Institute for such reports, and (d) is prepared in accordance with the applicable guidelines
of the California Debt and Investment Advisory Commission for such reports, as such guidelines
are in effect on the Closing Date.
"Qualified Appraiser" means a real estate appraiser selected by the Community Facilities
District and having an "MAI" designation from the Appraisal Institute.
"Rate and Method" means the rate and method of apportionment of the Special Taxes
approved by the qualified electors of the Community Facilities District.
"Rebate Fund" means the fund by that name established and held by the Trustee pursuant
to Section 5.06.
"Rebate Requirement" has the meaning ascribed thereto in the Tax Certificate.
"Record Date" means the 15th calendar day of the month preceding each Interest Payment
Date, whether or not such day is a Business Day.
"Redemption Fund" means the fund by that name established and held by the Trustee
pursuant to Section 5.04.
"Redemption Price" means the aggregate amount of principal of and premium, if any, on
the Bonds upon the redemption thereof pursuant hereto.
"Registration Books" means the records maintained by the Trustee for the registration of
ownership and registration of transfer of the Bonds pursuant to Section 2.04.
OHS West:260069578.3 IO
"Representation Letter" means the Letter of Representations from the Community
Facilities District to DTC, or any successor securities depository for any Series of Book-Entry
Bonds, in which the Community Facilities District makes certain representations with respect to
issues of its securities for deposit by DTC or such successor depository.
"Reserve Fund" means the fund by that name established and held by the Trustee pursuant
to Section 5.05.
"Reserve Requirement" means, as of the date of any calculation, the least of (a) 10% of
the original aggregate principal amount of the Bonds (excluding Bonds refunded with the proceeds
of subsequently issued Bonds), (b) Maximum Annual Debt Service, and (c) 125% of Average
Annual Debt Service.
"Resolution of Formation" means Resolution No. 06-89, adopted by the City Council on
July 17, 2006, as originally adopted and as it maybe amended or supplemented from time to time.
"S&P" means Standard & Poor's Ratings Services, a division of The McGraw-Hill
Companies, Inc., a corporation duly organized and existing under and by virtue of the laws of the
State of New York, and its successors and assigns, except that if such entity shall be dissolved or
liquidated or shall no longer perform the functions of a securities rating agency, then the term
"S&P" shall be deemed to refer to any other nationally recognized securities rating agency selected
by the Community Facilities District.
"Series" means the initial series of Bonds executed, authenticated and delivered on the date
of initial issuance of the Bonds and identified pursuant to this Indenture as the Series 2007 Bonds,
and any Additional Bonds issued pursuant to a Supplemental Indenture and identified as a separate
Series of Bonds.
"Series 2007 Bonds" means the City of Tustin Community Facilities District No. 06-1
(Tustin Legacy/Columbus Villages) Special Tax Bonds, Series 2007 A, issued hereunder.
"Special Tax Fund" means the fund by that name established and held by the Trustee
pursuant to Section 5.02.
"Special Tax Revenues" means the proceeds of the Special Taxes received by or on behalf
of the Community Facilities District, including any prepayments thereof, interest and penalties
thereon and proceeds of the redemption or sale of property sold as a result of foreclosure of the lien
of the Special Taxes, which shall be limited to the amount of said lien and interest and penalties
thereon.
"Special Taxes" means the special taxes described in the Rate and Method as "Special Tax
A" levied within the Community Facilities District pursuant to the Act, the Ordinance and this
Indenture.
"Supplemental Indenture" means any supplemental indenture amendatory of or
supplemental to this Indenture, but only if and to the extent that such Supplemental Indenture is
specifically authorized hereunder.
OHS West:260069578.3 I I
"Taxable Property" has the meaning ascribed thereto in the Rate and Method.
"Tax Certificate" means the Tax Certificate executed by the Community Facilities District
at the time of issuance of the Series 2007 Bonds relating to the requirements of Section 148 of the
Code, as originally executed and as it may be amended from time to time in accordance with the
terms thereof.
"Trustee" means Union Bank of California, N.A., a national banking association organized
and existing under the laws of the United States of America, or any successor thereto as Trustee
hereunder, appointed as provided herein.
"Written Certificate" and "Written Request" of the Community Facilities District mean,
respectively, a written certificate or written request signed in the name of the Community Facilities
District by an Authorized Representative. Any such certificate or request may, but need not, be
combined in a single instrument with any other instrument, opinion or representation, and the two or
more so combined shall be read and construed as a single instrument.
Section 1.02. Equal Security. In consideration of the acceptance of the Bonds by the
Owners thereof, this Indenture shall be deemed to be and shall constitute a contract among the
Community Facilities District, the Trustee and the Owners from time to time of all Bonds
authorized, executed, issued and delivered hereunder and then Outstanding to secure the full and
final payment of the principal of, premium, if any, and interest on all Bonds which may from
time to time be authorized, executed, issued and delivered hereunder, subject to the agreements,
conditions, covenants and provisions contained herein; and all agreements and covenants set
forth herein to be performed by or on behalf of the Community Facilities District shall be for the
equal and proportionate benefit, protection and security of all Owners of the Bonds without
distinction, preference or priority as to security or otherwise of any Bonds over any other Bonds
by reason of the number or date thereof or the time of authorization, sale, execution, issuance or
delivery thereof or for any cause whatsoever, except as expressly provided herein or therein.
OHS West:260069578.3 IZ
ARTICLE II
THE BONDS
Section 2.01. Authorization of Bonds. The Community Facilities District hereby
authorizes the issuance of the Bonds under and subject to the terms of this Indenture, the Act and
other applicable laws of the State of California. The Bonds may consist of one or more Series of
varying denominations, dates, maturities, interest rates and other provisions, subject to the
provisions and conditions contained herein. The Bonds shall be designated generally as the "City
of Tustin Community Facilities District No. 06-1 (Tustin Legacy/Columbus Villages) Special
Tax Bonds," each Series thereof to bear such additional designation as may be necessary or
appropriate to distinguish such Series from every other Series of Bonds.
Section 2.02. Terms of Series 2007 Bonds. (a) The Series 2007 Bonds shall be
designated "City of Tustin Community Facilities District No. 06-1 (Tustin Legacy/Columbus
Villages) Special Tax Bonds, Series 2007 A." The aggregate principal amount of Series 2007
Bonds that may be issued and Outstanding under this Indenture shall not exceed $ ,
except as may be otherwise provided in Section 2.08.
(b) The Series 2007 Bonds shall be issued in fully registered form without coupons in
denominations of $5,000 or any integral multiple thereof, so long as no Series 2007 Bond shall have
more than one maturity date. The Series 2007 Bonds shall be dated as of the Closing Date, shall be
issued in the aggregate principal amount of $ ,shall mature on September 1 of each year
and shall bear interest (calculated on the basis of a 360-day year comprised of twelve 30-day
months) at the rates per annum as follows:
Maturity Date Principal Interest
(September 1~ Amount Rate
(c) Interest on the Series 2007 Bonds shall be payable from the Interest Payment Date
next preceding the date of authentication thereof unless (i) a Series 2007 Bond is authenticated on or
OHS West:260069578.3 13
before an Interest Payment Date and after the close of business on the preceding Record Date, in
which event it shall bear interest from such Interest Payment Date, (ii) a Series 2007 Bond is
authenticated on or before the first Record Date, in which event interest thereon shall be payable
from the Closing Date, or (iii) interest on any Series 2007 Bond is in default as of the date of
authentication thereof, in which event interest thereon shall be payable from the date to which
interest has previously been paid or duly provided for. Interest shall be paid in lawful money of the
United States on each Interest Payment Date. Interest shall be paid by check of the Trustee mailed
by first class mail, postage prepaid, on each Interest Payment Date to the Series 2007 Bond Owners
at their respective addresses shown on the Registration Books as of the close of business on the
preceding Record Date. Notwithstanding the foregoing, interest on any Series 2007 Bond which is
not punctually paid or duly provided for on any Interest Payment Date shall, if and to the extent that
amounts subsequently become available therefor, be paid on a payment date established by the
Trustee to the Person in whose name the ownership of such Series 2007 Bond is registered on the
Registration Books at the close of business on a special record date to be established by the Trustee
for the payment of such defaulted interest, notice of which shall be given to such Owner not less
than ten days prior to such special record date.
(d) The principal of the Series 2007 Bonds shall be payable in lawful money of the
United States of America upon presentation and surrender thereof upon maturity or earlier
redemption at the Office of the Trustee. Payment of principal of any Series 2007 Bond shall be
made only upon presentation and surrender of such Bond at the Office of the Trustee.
(e) The Series 2007 Bonds shall be subject to redemption as provided in Article IV.
(f) The Series 2007 Bonds shall be in substantially the form set forth in Exhibit A
hereto, with appropriate or necessary insertions, omissions and variations as permitted or required
hereby.
Section 2.03. Transfer and Exchange of Bonds. Any Bond may, in accordance with
its terms, be transferred upon the Registration Books 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 written instrument of transfer, duly executed in a
form acceptable to the Trustee. Whenever any Bond or Bonds shall be surrendered for transfer,
the Community Facilities District shall execute and the Trustee shall authenticate and shall
deliver a new Bond or Bonds of the same Series and maturity in a like aggregate principal
amount, in any authorized denomination. The Trustee shall require the Bond Owner requesting
such transfer to pay any tax or other governmental charge required to be paid with respect to
such transfer.
The Bonds may be exchanged at the Office of the Trustee for a like aggregate principal
amount of Bonds of the same Series and maturity of other authorized denominations. The Trustee
shall require the payment by the Bond Owner requesting such exchange of any tax or other
governmental charge required to be paid with respect to such exchange.
The Trustee shall not be obligated to make any transfer or exchange of Bonds of a Series
pursuant to this Section during the period established by the Trustee for the selection of Bonds of
such Series for redemption, or with respect to any Bonds of such Series selected for redemption.
OHS West:260069578.3 I4
Section 2.04. Registration Books. The Trustee will keep or cause to be kept, at the
Office of the Trustee, sufficient records for the registration and transfer of ownership of the
Bonds, which shall be open to inspection during regular business hours and upon reasonable
notice by the Community Facilities District; and, upon presentation for such purpose, the Trustee
shall, under such reasonable regulations as it may prescribe, register or transfer or cause to be
registered or transferred, on such records, the ownership of the Bonds as hereinbefore provided.
Section 2.05. Execution of Bonds. The Bonds shall be executed in the name and on
behalf of the Community Facilities District with the manual or facsimile signature of the Mayor
of the City attested by the manual or facsimile signature of the City Clerk of the City. The
Bonds shall then be delivered to the Trustee for authentication by it. In case any of such officers
of the City who shall have signed or attested any of the Bonds shall cease to be such officers
before the Bonds so signed or attested shall have been authenticated or delivered by the Trustee,
or issued by the Community Facilities District, such Bonds may nevertheless be authenticated,
delivered and issued and, upon such authentication, delivery and issue, shall be as binding upon
the Community Facilities District as though those who signed and attested the same had
continued to be such officers, and also any Bonds may be signed and attested on behalf of the
Community Facilities District by such Persons as at the actual date of execution of such Bonds
shall be the proper officers of the City although at the nominal date of such Bonds any such
Person shall not have been such officer of the City.
Section 2.06. Authentication of Bonds. Only such of the Bonds as shall bear thereon a
certificate of authentication substantially in the form as that set forth in Exhibit A hereto for the
Series 2007 Bonds, manually executed by the Trustee, shall be valid or obligatory for any
purpose or entitled to the benefits of this Indenture, and such certificate of or on behalf of the
Trustee shall be conclusive evidence that the Bonds so authenticated have been duly executed,
authenticated and delivered hereunder and are entitled to the benefits of this Indenture.
Section 2.07. Temporary Bonds. The Bonds of a Series may be issued in temporary
form exchangeable for definitive Bonds of such Series when ready for delivery. Any temporary
Bonds may be printed, lithographed or typewritten, shall be of such authorized denominations as
may be determined by the Community Facilities District, shall be in fully registered form
without coupons and may contain such reference to any of the provisions of this Indenture as
may be appropriate. Every temporary Bond shall be executed by the Community Facilities
District and authenticated by the Trustee upon the same conditions and in substantially the same
manner as the definitive Bonds. If the Community Facilities District issues temporary Bonds of
a Series it shall execute and deliver definitive Bonds of such Series as promptly thereafter as
practicable, and thereupon the temporary Bonds of such Series may be surrendered, for
cancellation, at the Office of the Trustee and the Trustee shall authenticate and deliver in
exchange for such temporary Bonds an equal aggregate principal amount of definitive Bonds of
such Series and maturities in authorized denominations. Until so exchanged, the temporary
Bonds of such Series shall be entitled to the same benefits under this Indenture as definitive
Bonds of such Series authenticated and delivered hereunder.
Section 2.08. Bonds Mutilated, Lost, Destroyed or Stolen. If any Bond shall become
mutilated, the Community Facilities District, at the expense of the Owner of said Bond, shall
execute, and the Trustee shall thereupon authenticate and deliver, a new Bond of like tenor and
OHS West:260069578.3 IS
Series in exchange and substitution for the Bond so mutilated, but only upon surrender to the
Trustee of the Bond so mutilated. Every mutilated Bond so surrendered to the Trustee shall be
canceled by it and delivered to, or upon the order of, the Community Facilities District. If any
Bond shall be lost, destroyed or stolen, evidence of such loss, destruction or theft may be
submitted to the Trustee and, if such evidence and indemnity satisfactory to the Trustee shall be
given, the Community Facilities District, at the expense of the Owner, shall execute, and the
Trustee shall thereupon authenticate and deliver, a new Bond of like tenor and Series in lieu of
and in replacement for the Bond so lost, destroyed or stolen (or if any such Bond shall have
matured or shall have been selected for redemption, instead of issuing a replacement Bond, the
Trustee may pay the same without surrender thereof). The Community Facilities District may
require payment by the Owner of a sum not exceeding the actual cost of preparing each
replacement Bond issued under this Section and of the expenses which may be incurred by the
Community Facilities District and the Trustee. Any Bond of a Series issued under the provisions
of this Section in lieu of any Bond of such Series alleged to be lost, destroyed or stolen shall
constitute an original additional contractual obligation on the part of the Community Facilities
District whether or not the Bond so alleged to be lost, destroyed or stolen be at any time
enforceable by anyone, and shall be entitled to the benefits of this Indenture with all other Bonds
of such Series secured by this Indenture.
Section 2.09. Book-Entry Bonds. (a) Prior to the issuance of a Series of Bonds, the
Community Facilities District may provide that such Series of Bonds shall initially be issued as
Book-Entry Bonds and, in such event, the Bonds of such Series for each maturity shall be in the
form of a separate single fully registered Bond (which may be typewritten). The Series 2007
Bonds shall initially be issued as Book-Entry Bonds.
Except as provided in subsection (c) of this Section, the registered Owner of all of the
Book-Entry Bonds shall be DTC and the Book-Entry Bonds shall be registered in the name of
Cede & Co., as nominee of DTC. Notwithstanding anything to the contrary contained in this
Indenture, payment of interest with respect to any Book-Entry Bond registered as of each Record
Date in the name of Cede & Co. shall be made by wire transfer of same-day funds to the account
of Cede & Co. on the payment date for the Book-Entry Bonds at the address indicated on the
Record Date for Cede & Co. in the Registration Books or as otherwise provided in the
Representation Letter.
(b) The Trustee and the Community Facilities District may treat DTC (or its
nominee) as the sole and exclusive Owner of the Book-Entry Bonds registered in its name for the
purposes of payment of the principal, premium, if any, or interest with respect to the Book-Entry
Bonds, selecting the Book-Entry Bonds or portions thereof to be redeemed, giving any notice
permitted or required to be given to Owners of Book-Entry Bonds under this Indenture,
registering the transfer of Book-Entry Bonds, obtaining any consent or other action to be taken
by Owners of Book-Entry Bonds and for all other purposes whatsoever, and neither the Trustee
nor the Community Facilities District shall be affected by any notice to the contrary. Neither the
Trustee nor the Community Facilities District shall have any responsibility or obligation to any
Participant, any person claiming a beneficial ownership interest in the Book-Entry Bonds under
or through DTC or any Participant, or any other person which is not shown on the Registration
Books as being an Owner, with respect to the accuracy of any records maintained by DTC or any
Participant, the payment by DTC or any Participant of any amount in respect of the principal,
OHS West:260069578.3 16
premium, if any, or interest with respect to the Book-Entry Bonds, any notice which is permitted
or required to be given to Owners of Book-Entry Bonds under this Indenture, the selection by
DTC or any Participant of any person to receive payment in the event of a partial redemption of
the Book-Entry Bonds, or any consent given or other action taken by DTC as Owner of Book-
EntryBonds. The Trustee shall pay all principal, premium, if any and interest with respect to the
Book-Entry Bonds, only to DTC, and all such payments shall be valid and effective to fully
satisfy and discharge the Community Facilities Districts obligations with respect to the principal,
premium, if any, and interest with respect to the Book-Entry Bonds to the extent of the sum or
sums so paid. Except under the conditions of subsection (c) of this Section, no person other than
DTC shall receive an executed Book-Entry Bond for each separate stated maturity. Upon
delivery by DTC to the Trustee of written notice to the effect that DTC has determined to
substitute a new nominee in place of Cede & Co., and subject to the provisions herein with
respect to record dates, the term "Cede & Co." in this Indenture shall refer to such new nominee
of DTC.
(c) In the event (i) DTC, including any successor as securities depository for a Series
of Bonds, determines not to continue to act as securities depository for such Series of Bonds, or
(ii) the Community Facilities District determines that the incumbent securities depository shall
no longer so act as securities depository for such Series of Bonds, and delivers a written
certificate to the Trustee to that effect, then the Community Facilities District will discontinue
the book-entry system with the incumbent securities depository for such Series of Bonds. If the
Community Facilities District determines to replace the incumbent securities depository for such
Series of Bonds with another qualified securities depository, the Community Facilities District
shall prepare or direct the preparation of a new single, separate fully registered Bond of such
Series for the aggregate outstanding principal amount of Bonds of such Series of each maturity,
registered in the name of such successor or substitute qualified securities depository, or its
nominee, or make such other arrangement acceptable to the Community Facilities District, the
Trustee and the successor securities depository for the Bonds of such Series as are not
inconsistent with the terms of this Indenture. If the Community Facilities District fails to
identify another qualified successor securities depository for such Series of Bonds to replace the
incumbent securities depository, then the Bonds of such Series shall no longer be restricted to
being registered in the Registration Books in the name of the incumbent securities depository or
its nominee, but shall be registered in whatever name or names the incumbent securities
depository for such Series of Bonds, or its nominee, shall designate. In such event the
Community Facilities District shall execute, and deliver to the Trustee, a sufficient quantity of
Bonds of such Series to carry out the transfers and exchanges provided in Sections 2.03, 2.07 and
2.08. All such Bonds of such Series shall be in fully registered form in denominations
authorized by this Indenture.
(d) Notwithstanding any other provision of this Indenture to the contrary, so long as
any Book-Entry Bond is registered in the name of DTC, or its nominee, all payments with
respect to the principal, premium, if any, and interest with respect to such Book-Entry Bond and
all notices with respect to such Book-Entry Bond shall be made and given, respectively, as
provided in the Representation Letter.
(e) In connection with any notice or other communication to be provided to Owners
of Book-Entry Bonds pursuant to this Indenture by the Community Facilities District or the
OHS West:260069578.3 I7
Trustee with respect to any consent or other action to be taken by Owners, the Community
Facilities District or the Trustee, as the case may be, shall establish a record date for such
consent or other action and give DTC notice of such record date not less than 15 calendar days in
advance of such record date to the extent possible.
OHS West:260069578.3 Ig
ARTICLE III
ISSUANCE OF BONDS; APPLICATION OF PROCEEDS; ADDITIONAL BONDS
Section 3.01. Issuance of Series 2007 Bonds. The Community Facilities District may,
at any time, execute the Series 2007 Bonds and deliver the same to the Trustee. The Trustee
shall authenticate the Series 2007 Bonds and deliver the Series 2007 Bonds to the Original
Purchaser upon receipt of a Written Request of the Community Facilities District and upon
receipt of the purchase price therefor.
Section 3.02. Application of Proceeds of the Series 2007 Bonds. On the Closing Date,
the proceeds of the sale of the Series 2007 Bonds received by the Trustee, $ ,shall be
deposited by the Trustee as follows:
(a) the Trustee shall deposit the amount of $
Interest Account;
(b) the Trustee shall deposit the amount of $
which is equal to the Reserve Requirement;
(c) the Trustee shall deposit the amount of $
Fund;
(d) the Trustee shall deposit the amount of $
Account; and
(e) the Trustee shall deposit the amount of $
Account.
in the Capitalized
in the Reserve Fund,
in the Costs of Issuance
in the Acquisition
in the Construction
Section 3.03. Costs of Issuance Fund. The Trustee shall establish and maintain a
separate fund designated the "Costs of Issuance Fund." On the Closing Date, the Trustee shall
deposit in the Costs of Issuance Fund the amount required to be deposited therein pursuant to
Section 3.02.
The moneys in the Costs of Issuance Fund shall be used and withdrawn by the Trustee from
time to time to pay the Costs of Issuance upon submission of a Written Request of the Community
Facilities District stating (a) the Person to whom payment is to be made, (b) the amount to be paid,
(c) the purpose for which the obligation was incurred, (d) that such payment is a proper charge
against the Costs of Issuance Fund, and (e) that such amounts have not been the subject of a prior
disbursement from the Costs of Issuance Fund, in each case together with a statement or invoice for
each amount requested thereunder. On 1, 2007, the Trustee shall (i) transfer from the
Costs of Issuance Fund to the Bond Fund the lesser of $50,000 or the total amount remaining on
deposit in the Costs of Issuance Fund on such date, and (ii) after making the transfer required to be
made pursuant to the preceding clause (i), transfer any amount remaining in the Costs of Issuance
Fund to the Construction Account; upon making such transfer or transfers, as the case may be, the
Costs of Issuance Fund shall be closed.
OHS West:260069578.3 19
If the Costs of Issuance Fund has been closed in accordance with the provisions hereof, such
Fund shall be reopened and reestablished by the Trustee in connection with the issuance of any
Additional Bonds, if so provided in the Supplemental Indenture pursuant to which such Additional
Bonds are issued. There shall be deposited in the Cost of Issuance Fund the portion, if any, of the
proceeds of the sale of any Additional Bonds required to be deposited therein under the
Supplemental Indenture pursuant to which such Additional Bonds are issued.
Section 3.04. Improvement Fund. (a) The Trustee shall establish and maintain a
separate fund designated the "Improvement Fund." Within the Improvement Fund, the Trustee
shall establish and maintain a separate account designated the "Acquisition Account' and a
separate account designated the "Construction Account." On the Closing Date, the Trustee shall
deposit in the Acquisition Account and the Construction Account the respective amounts
required to be deposited therein pursuant to Section 3.02.
(b) The moneys in the Acquisition Account shall be used and withdrawn by the Trustee
from time to time to pay the costs of the Acquisition Project upon submission to the Trustee of a
Written Request of the Community Facilities District stating (i) the Person to whom payment is to
be made, (ii) the amount to be paid, (iii) the purpose for which the obligation was incurred, (iv) that
such payment constitutes a cost of the Acquisition Project and is a proper charge against the
Acquisition Account, (v) that such amounts have not been the subject of a prior disbursement from
the Acquisition Account, and (vi) whether or not such costs of the Acquisition Project are to be paid
pursuant to a Payment Request submitted in accordance with the Acquisition Agreement, in each
case together with a statement or invoice for each amount requested thereunder. If costs of the
Acquisition Project are to be paid pursuant to a Payment Request submitted in accordance with the
Acquisition Agreement, a duplicate original of the signed and approved Payment Request relating to
such costs of the Acquisition Project, together with all exhibits and attachments thereto, must
accompany such Written Request of the Community Facilities District.
Upon the filing of a Written Certificate of the Community Facilities District stating (i) that
the portion of the Acquisition Project to be financed from the Acquisition Account has been
completed and that all costs of such Acquisition Project have been paid, or (ii) that such portion of
the Acquisition Project has been substantially completed and that all remaining costs of such portion
of the Acquisition Project have been determined and specifying the amount to be retained therefor,
the Trustee shall (A) if the amount remaining in the Acquisition Account (less any such retention) is
equal to or greater than $25,000, transfer the portion of such amount equal to the largest integral
multiple of $5,000 that is not greater than such amount to the Redemption Fund, to be applied to the
redemption of Bonds, and (B) after making the transfer, if any, required to be made pursuant to the
preceding clause (A), transfer all of the amount remaining in the Acquisition Account (less any such
retention) to the Bond Fund, to be applied to the payment of interest on the Bonds; provided,
however, that if so specified in a Written Request of the Community Facilities District, all or a
portion of said remaining amount shall be transferred to the Construction Account.
(c) The moneys in the Construction Account shall be used and withdrawn by the
Trustee from time to time to pay the costs of the Construction Project upon submission to the
Trustee of a Written Request of the Community Facilities District stating (i) the Person to whom
payment is to be made, (ii) the amount to be paid, (iii) the purpose for which the obligation was
incurred, (iv) that such payment constitutes a cost of the Construction Project and is a proper charge
OHS West:260069578.3 20
against the Construction Account, and (v) that such amounts have not been the subject of a prior
disbursement from the Construction Account.
(d) The Trustee shall make all payments requested pursuant to this Section by check or
wire transfer in accordance with the payment instructions contained in such Written Request of the
Community Facilities District or any schedule or invoice submitted with such Written Request. The
Trustee shall have no duty or obligation to authenticate such payment instructions.
Upon the filing of a Written Certificate of the Community Facilities District stating (i) that
the portion of the Construction Project to be financed from the Construction Account has been
completed and that all costs of such Construction Project have been paid, or (ii) that such portion of
the Construction Project has been substantially completed and that all remaining costs of such
portion of the Construction Project have been determined and specifying the amount to be retained
therefor, the Trustee shall (A) if the amount remaining in the Construction Account (less any such
retention) is equal to or greater than $25,000, transfer the portion of such amount equal to the largest
integral multiple of $5,000 that is not greater than such amount to the Redemption Fund, to be
applied to the redemption of Bonds, and (B) after making the transfer, if any, required to be made
pursuant to the preceding clause (A), transfer all of the amount remaining in the Construction
Account (less any such retention) to the Bond Fund, to be applied to the payment of interest on the
Bonds; provided, however, that if so specified in a Written Request of the Community Facilities
District, all or a portion of said remaining amount shall be transferred to the Acquisition Account.
Section 3.05. Conditions for the Issuance of Additional Bonds. The Community
Facilities District may at any time issue one or more Series of Additional Bonds (in addition to
the Series 2007 Bonds) payable from Net Special Tax Revenues as provided herein on a parity
with all other Bonds theretofore issued hereunder, but only subject to the following conditions,
which are hereby made conditions precedent to the issuance of such Additional Bonds:
(a) The issuance of such Additional Bonds shall have been authorized under and
pursuant to the Act and under and pursuant hereto and shall have been provided for by a
Supplemental Indenture which shall specify the following:
(1) The purpose for which such Additional Bonds are to be issued;
provided, that the proceeds of the sale of such Additional Bonds shall be applied
only for the purpose of (i) providing funds to pay costs of the Project, (ii)
providing funds to refund any Bonds issued hereunder, (iii) providing funds to
pay Costs of Issuance incurred in connection with the issuance of such Additional
Bonds, and (iv) providing funds to make any deposit to the Reserve Fund required
pursuant to paragraph (6) below;
(2) The principal amount and designation of such Series of Additional
Bonds and the denomination or denominations of the Additional Bonds;
(3) The date, the maturity date or dates, the interest payment dates and
the dates on which mandatory sinking fund redemptions, if any, are to be made
for such Additional Bonds; provided, that (i) the serial Bonds of such Series of
Additional Bonds shall be payable as to principal annually on September 1 of
OHS West:260069578.3 21
each year in which principal falls due, and the term Bonds of such Series of
Additional Bonds shall have annual mandatory sinking fund redemptions on
September 1, (ii) the Additional Bonds shall be payable as to interest
semiannually on March 1 and September 1 of each year, except that the first
installment of interest may be payable on either March 1 or September 1 and shall
be for a period of not longer than twelve months and the interest shall be payable
thereafter semiannually on March 1 and September 1, (iii) all Additional Bonds of
a Series of like maturity shall be identical in all respects, except as to number or
denomination, and (iv) serial maturities of serial Bonds or mandatory sinking fund
redemptions for term Bonds, or any combination thereof, shall be established to
provide for the redemption or payment of such Additional Bonds on or before
their respective maturity dates;
Bonds;
(4) The redemption premiums and terms, if any, for such Additional
(5) The form of such Additional Bonds;
(6) The amount to be deposited from the proceeds of sale of such
Additional Bonds in the Reserve Fund; provided, that the Reserve Fund shall be
increased at the time that such Additional Bonds become Outstanding to an
amount at least equal to the Reserve Requirement, and an amount at least equal to
the Reserve Requirement shall thereafter be maintained in the Reserve Fund; and
(7) Such other provisions that are appropriate or necessary and are not
inconsistent with the provisions hereof;
(b) Upon the issuance of such Additional Bonds, the Community Facilities
District shall be in compliance with all agreements, conditions, covenants and terms
contained herein required to be observed or performed by it; and
(c) The Community Facilities District shall have received a certificate from
one or more Independent Consultants, which, taken together, certify that:
(1) on the basis of the parcels of land and improvements existing in the
Community Facilities District as of the January 1 preceding the proposed issuance
of such Additional Bonds, for each Fiscal Year that Bonds will be Outstanding,
the amount of the Available Special Taxes that may be levied on all Taxable
Property in such Fiscal Year is at least equal to 110% of Annual Debt Service for
the Corresponding Bond Year on all Outstanding Bonds; provided, however, that
there shall be excluded from such calculation any Available Special Taxes levied
or that may be levied on any parcel of Taxable Property that, as of the date of
such certificate, is in default in the payment of any Special Taxes levied thereon;
and
(2) the sum of (A) the Assessed Value of parcels of Taxable Property
for which a Qualified Appraisal Report has not been provided, plus (B) the
Appraised Value of parcels of Taxable Property for which a Qualified Appraisal
OHS West:260069578.3 22
Report has been provided, as such Appraised Value is shown in such Qualified
Appraisal Report, is at least [three times] the sum of (I) the aggregate principal
amount of Outstanding Bonds, plus (II) the aggregate principal amount of all
fixed lien special assessments levied on parcels of Taxable Property, based upon
information from the most recent Fiscal Year for which such information is
available, plus (III) the sum of a portion of the aggregate principal amount of
Other CFD Bonds, which portion shall be equal to the aggregate principal amount
of such Other CFD Bonds multiplied by a fraction, the numerator of which is the
amount of special taxes levied for such Other CFD Bonds on parcels of Taxable
Property, and the denominator of which is the total amount of special taxes levied
for such Other CFD Bonds on all parcels of land (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 such Other CFD Bonds occurs), based upon
information from the most recent Fiscal Year for which such information is
available.
Notwithstanding the foregoing, if such Additional Bonds are to be issued solely for
the purpose of providing funds to refund any Outstanding Bonds issued hereunder and, upon
such issuance, Annual Debt Service in each Bond Year, calculated for all Bonds to be
Outstanding after the issuance of such Additional Bonds, shall be less than or equal to
Annual Debt Service in such Bond Year, calculated for all Bonds Outstanding immediately
prior to the issuance of such Additional Bonds, then the receipt of such certificate or
certificates shall not be a condition precedent to the issuance of such Additional Bonds.
Nothing contained herein shall limit the issuance of any special tax bonds payable from
Special Taxes if, after the issuance and delivery of such special tax bonds, none of the Bonds
theretofore issued hereunder will be Outstanding.
Section 3.06. Procedure for the Issuance of Additional Bonds. At any time after the
sale of any Additional Bonds in accordance with the Act, such Additional Bonds shall be
executed by the Community Facilities District for issuance hereunder and shall be delivered to
the Trustee and thereupon shall be authenticated and delivered by the Trustee, but only upon
receipt by the Trustee of the following:
(a) A certified copy of the Supplemental Indenture authorizing the issuance of
such Additional Bonds;
(b) A Written Request of the Community Facilities District as to the delivery
of such Additional Bonds;
(c) An opinion of Bond Counsel substantially to the effect that (i) this
Indenture and all Supplemental Indentures have been duly authorized, executed and
delivered by, and constitute the valid and binding obligations of, the Community
Facilities District, enforceable in accordance with their terms (except as enforcement may
be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting creditors rights and by the application of equitable principles and by the
exercise of judicial discretion in appropriate cases and subject to the limitations on legal
OHS West:260069578.3 23
remedies against political subdivisions in the State of California), (ii) such Additional
Bonds constitute valid and binding special obligations of the Community Facilities
District payable solely from Net Special Tax Revenues as provided herein and are
enforceable in accordance with their terms (except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting
creditors rights and by the application of equitable principles and by the exercise of
judicial discretion in appropriate cases and subject to the limitations on legal remedies
against political subdivisions in the State of California), and (iii) the issuance of such
Additional Bonds, in and of itself, will not adversely affect the exclusion of interest on
the Bonds Outstanding prior to the issuance of such Additional Bonds from gross income
for federal income tax purposes;
(d) The proceeds of the sale of such Additional Bonds; and
(e) Such further documents or money as are required by the provisions hereof
or by the provisions of the Supplemental Indenture authorizing the issuance of such
Additional Bonds.
Section 3.07. Additional Bonds. So long as any of the Bonds remain Outstanding, the
Community Facilities District shall not issue any Additional Bonds or obligations payable from
Net Special Tax Revenues on a parity with the Bonds, except pursuant to Sections 3.05 and 3.06.
So long as any of the Bonds remain Outstanding, the Community Facilities District shall not
issue any obligations payable from Net Special Tax Revenues on a basis senior or subordinate to
the Bonds.
OHS West:260069578.3 24
ARTICLE IV
REDEMPTION OF BONDS
Section 4.01. Redemption of Series 2007 Bonds. (a) Optional Redemption. The Series
2007 Bonds shall be subject to optional redemption, in whole or in part, on any Interest Payment
Date on or after September 1, 20~ from any source of available funds, at the following
respective Redemption Prices (expressed as percentages of the principal amount of the Series
2007 Bonds to be redeemed), plus accrued interest thereon to the date of redemption:
Redemption Dates
September 1, 20
September 1, 20
September 1, 20
and March 1, 20
and March 1, 20
and thereafter
Redemption Price
The Community Facilities District shall give the Trustee written notice of its intention to
redeem Series 2007 Bonds pursuant to this subsection not less than 45 days prior to the applicable
redemption date, unless such notice shall be waived by the Trustee.
(b) Mandatory Redemption from Special Tax Prepayments. The Series 2007 Bonds
shall be subject to mandatory redemption, in whole or in part, on any Interest Payment Date on or
after September 1, 2007, from and to the extent of any prepayment of Special Taxes, at the
following respective Redemption Prices (expressed as percentages of the principal amount of the
Series 2007 Bonds to be redeemed), plus accrued interest thereon to the date of redemption:
Redemption Dates Redemption Price
September 1, 2007 through March 1, 20
September 1, 20 and March 1, 20
September 1, 20 and March 1, 20
September 1, 20 and thereafter
(c) Mandatory Sinking Fund Redemption. The Series 2007 Bonds maturing
September 1, 20 shall be subject to mandatory sinking fund redemption, in part, on September 1
in each year, commencing September 1, 20~ at a Redemption Price equal to the principal amount
of the Series 2007 Bonds to be redeemed, without premium, plus accrued interest thereon to the date
of redemption, in the aggregate respective principal amounts in the respective years as follows:
Sinking Fund
Redemption Date
(September l~
(Maturity)
Principal Amount
to be
Redeemed
OHS West:260069578.3 25
If some but not all of the Series 2007 Bonds maturing on September 1, 20 are redeemed
pursuant to Section 4.01(a), the principal amount of Series 2007 Bonds maturing on September 1,
20 to be redeemed pursuant to Section 4.01(c) on any subsequent September 1 shall be reduced,
by $5,000 or an integral multiple thereof, as designated by the Community Facilities District in a
Written Certificate of the Community Facilities District filed with the Trustee; provided, however,
that the aggregate amount of such reductions shall not exceed the aggregate amount of Series 2007
Bonds maturing on September 1, 20 redeemed pursuant to Section 4.01(a). If some but not all of
the Series 2007 Bonds maturing on September 1, 20 are redeemed pursuant to Section 4.01(b),
the principal amount of Series 2007 Bonds maturing on September 1, 20 to be redeemed pursuant
to Section 4.01(c) on any subsequent September 1 shall be reduced by the aggregate principal
amount of the Series 2007 Bonds maturing on September 1, 20 so redeemed pursuant to Section
4.01(b), such reduction to be allocated among redemption dates as nearly as practicable on a pro
rata basis in amounts of $5,000 or integral multiples thereof, as determined by the Trustee, notice of
which determination shall be given by the Trustee to the Community Facilities District.
The Series 2007 Bonds maturing September 1, 2037 shall be subject to mandatory sinking
fund redemption, in part, on September 1 in each year, commencing September 1, 20~ at a
Redemption Price equal to the principal amount of the Series 2007 Bonds to be redeemed, without
premium, plus accrued interest thereon to the date of redemption, in the aggregate respective
principal amounts in the respective years as follows:
Sinking Fund Principal Amount
Redemption Date to be
(September 1~ Redeemed
2037 (Maturity)
If some but not all of the Series 2007 Bonds maturing on September 1, 2037 are redeemed
pursuant to Section 4.01(a), the principal amount of Series 2007 Bonds maturing on September 1,
2037 to be redeemed pursuant to Section 4.01(c) on any subsequent September 1 shall be reduced,
by $5,000 or an integral multiple thereof, as designated by the Community Facilities District in a
Written Certificate of the Community Facilities District filed with the Trustee; provided, however,
that the aggregate amount of such reductions shall not exceed the aggregate amount of Series 2007
Bonds maturing on September 1, 2037 redeemed pursuant to Section 4.01(a). If some but not all of
the Series 2007 Bonds maturing on September 1, 2037 are redeemed pursuant to Section 4.01(b),
the principal amount of Series 2007 Bonds maturing on September 1, 2037 to be redeemed pursuant
to Section 4.01(c) on any subsequent September 1 shall be reduced by the aggregate principal
amount of the Series 2007 Bonds maturing on September 1, 2037 so redeemed pursuant to Section
4.01(b), such reduction to be allocated among redemption dates as nearly as practicable on a pro
rata basis in amounts of $5,000 or integral multiples thereof, as determined by the Trustee, notice of
which determination shall be given by the Trustee to the Community Facilities District.
Section 4.02. Notice of Redemption. The Trustee on behalf and at the expense of the
Community Facilities District shall mail (by first class mail) notice of any redemption to the
OHS West:260069578.3 26
respective Owners of any Bonds designated for redemption at their respective addresses
appearing on the Registration Books and to the Original Purchaser at least 30 but not more than
60 days prior to the date fixed for redemption. Such notice shall state the date of the notice, the
redemption date, the redemption place and the Redemption Price and shall designate the CUSIP
numbers, the Bond numbers and the maturity or maturities of the Bonds to be redeemed (except
in the event of redemption of all of the Bonds of such maturity or maturities in whole), and shall
require that such Bonds be then surrendered at the Office of the Trustee for redemption at the
Redemption Price, giving notice also that further interest on such Bonds will not accrue from and
after the date fixed for redemption. Neither the failure to receive any notice so mailed, nor any
defect in such notice, shall affect the validity of the proceedings for the redemption of the Bonds
or the cessation of accrual of interest thereon from and after the date fixed for redemption. With
respect to any notice of any optional redemption of Bonds of a Series, unless at the time such
notice is given the Bonds to be redeemed shall be deemed to have been paid within the meaning
of Section 10.01, such notice shall state that such redemption is conditional upon receipt by the
Trustee, on or prior to the date fixed for such redemption, of moneys that, together with other
available amounts held by the Trustee, are sufficient to pay the Redemption Price of, and accrued
interest on, the Bonds to be redeemed, and that if such moneys shall not have been so received
said notice shall be of no force and effect and the Community Facilities District shall not be
required to redeem such Bonds. In the event a notice of redemption of Bonds contains such a
condition and such moneys are not so received, the redemption of Bonds as described in the
conditional notice of redemption shall not be made and the Trustee shall, within a reasonable
time after the date on which such redemption was to occur, give notice to the Persons and in the
manner in which the notice of redemption was given, that such moneys were not so received and
that there shall be no redemption of Bonds pursuant to such notice of redemption.
Section 4.03. Selection of Bonds for Redemption. Whenever provision is made in this
Indenture for the redemption of less than all of the Bonds, the Trustee shall select the Bonds to
be redeemed from all Bonds not previously called for redemption (a) with respect to any optional
redemption of Bonds of a Series, among maturities of Bonds of such Series as directed in a
Written Request of the Community Facilities District, (b) with respect to any redemption
pursuant to Section 4.01(b) and the corresponding provision of any Supplemental Indenture
pursuant to which Additional Bonds are issued, among maturities of all Series of Bonds on a pro
rata basis as nearly as practicable, and (c) with respect to any other redemption of Additional
Bonds, among maturities as provided in the Supplemental Indenture pursuant to which such
Additional Bonds are issued, and by lot among Bonds of the same Series with the same maturity
in any manner which the Trustee in its sole discretion shall deem appropriate and fair. For
purposes of such selection, all Bonds shall be deemed to be comprised of separate $5,000
denominations and such separate denominations shall be treated as separate Bonds which maybe
separately redeemed.
Section 4.04. Partial Redemption of Bonds. Upon surrender of any Bonds redeemed
in part only, the Community Facilities District shall execute and the Trustee shall authenticate
and deliver to the Owner thereof, at the expense of the Community Facilities District, a new
Bond or Bonds of the same Series in authorized denominations equal in aggregate principal
amount representing the unredeemed portion of the Bonds surrendered.
OHS West:260069578.3 27
Section 4.05. Effect of Notice of Redemption. Notice having been mailed as aforesaid,
and moneys for the Redemption Price, and the interest to the applicable date fixed for
redemption, having been set aside in the Redemption Fund, the Bonds shall become due and
payable on said date, and, upon presentation and surrender thereof at the Office of the Trustee,
said Bonds shall be paid at the Redemption Price thereof, together with interest accrued and
unpaid to said date.
If, on said date fixed for redemption, moneys for the Redemption Price of all the Bonds to
be redeemed, together with interest to said date, shall be held by the Trustee so as to be available
therefor on such date, and, if notice of redemption thereof shall have been mailed as aforesaid and
not canceled, then, from and after said date, interest on said Bonds shall cease to accrue and become
payable. All moneys held by or on behalf of the Trustee for the redemption of Bonds shall be held
in trust for the account of the Owners of the Bonds so to be redeemed without liability to such
Owners for interest thereon.
All Bonds paid at maturity or redeemed prior to maturity pursuant to the provisions hereof
shall be canceled upon surrender thereof and destroyed.
OHS West:260069578.3 Zc~
ARTICLE V
SECURITY FOR BONDS; FLOW OF FUNDS; INVESTMENTS
Section 5.01. Pled e. Subject only to the provisions of this Indenture permitting the
application thereof for the purposes and on the terms and conditions set forth herein, all of the
Net Special Tax Revenues and any other amounts (including proceeds of the sale of the Bonds)
held in the Bond Fund and the Reserve Fund are hereby pledged to secure the payment of the
principal of, premium, if any, and interest on the Bonds in accordance with their terms, the
provisions of this Indenture and the Act. Said pledge shall constitute a first lien on such assets.
Section 5.02. Special Tax Fund. The Trustee shall establish and maintain a separate
fund designated the "Special Tax Fund." As soon as practicable after the receipt by the
Community Facilities District of any Special Tax Revenues, but in any event no later than the
date ten Business Days prior to the Interest Payment Date after such receipt, the Community
Facilities District shall transfer such Special Tax Revenues to the Trustee for deposit in the
Special Tax Fund; provided, however, that any portion of any such Special Tax Revenues that
represents prepaid Special Taxes that are to be applied to the payment of the Redemption Price
of Bonds in accordance with the provisions hereof shall be identified to the Trustee as such by
the Community Facilities District and shall be deposited in the Redemption Fund.
Upon receipt of a Written Request of the Community Facilities District, the Trustee shall
withdraw from the Special Tax Fund and transfer to the Administrative Expense Fund the amount
specified in such Written Request of the Community Facilities District as the amount necessary to
be transferred thereto in order to have sufficient amounts available therein to pay Administrative
Expenses.
On the Business Day immediately preceding each Interest Payment Date, after having
made any requested transfer to the Administrative Expense Fund, the Trustee shall withdraw
from the Special Tax Fund and transfer, first, to the Bond Fund, Net Special Tax Revenues in the
amount, if any, necessary to cause the amount on deposit in the Bond Fund to be equal to the
principal and interest due on the Bonds on such Interest Payment Date, and, second, to the
Reserve Fund, Net Special Tax Revenues in the amount, if any, necessary to cause the amount
on deposit in the Reserve Fund to be equal to the Reserve Requirement.
Section 5.03. Bond Fund. (a) The Trustee shall establish and maintain a separate fund
designated the "Bond Fund." Within the Bond Fund, the Trustee shall establish and maintain a
separate account designated the "Capitalized Interest Account." On the Closing Date, the
Trustee shall deposit in the Capitalized Interest Account the amount required to be deposited
therein pursuant to Section 3.02. The Trustee shall deposit in the Bond Fund from time to time
the amounts required to be deposited therein pursuant to Section 5.02. There shall additionally
be deposited in the Bond Fund and the Capitalized Interest Account the portion, if any, of the
proceeds of the sale of Additional Bonds required to be deposited therein under the Supplemental
Indenture pursuant to which such Additional Bonds are issued.
(b) In the event that, on the Business Day prior to an Interest Payment Date, amounts in
the Bond Fund are insufficient to pay the principal, if any, of and interest on the Bonds due and
OHS West:260069578.3 29
payable on such Interest Payment Date, including principal due and payable by reason of mandatory
sinking fund redemption of such Bonds, the Trustee shall withdraw from the Reserve Fund, to the
extent of any funds therein, the amount of such insufficiency, and shall transfer any amounts so
withdrawn to the Bond Fund.
(c) On each Interest Payment Date, the Trustee shall withdraw from the Bond Fund for
payment to the Owners of the Bonds the principal, if any, of and interest on the Bonds then due and
payable, including principal due and payable by reason of mandatory sinking fund redemption of
such Bonds. On each Interest Payment Date through and including September 1, 20~ the amount
set forth in the following table shall be transferred from the Capitalized Interest Account to the
Bond Fund. Any amount remaining in the Capitalized Interest Account on September 2, 20~
shall, unless otherwise provided in a Supplemental Indenture, be transferred to the Bond Fund.
There shall additionally be transferred from the Capitalized Interest Account to the Bond Fund the
amounts required to be so transferred under any Supplemental Indenture.
Interest Payment Date Amount Transferred
Section 5.04. Redemption Fund. The Trustee shall establish and maintain a special
fund designated the "Redemption Fund." As soon as practicable after the receipt by the
Community Facilities District of prepaid Special Taxes, but in any event not later than ten
Business Days after such receipt, the Community Facilities District shall transfer such prepaid
Special Taxes to the Trustee for deposit in the Redemption Fund. Additionally, the Trustee shall
deposit in the Redemption Fund amounts received from the Community Facilities District in
connection with the Community Facilities District's exercise of its rights to optionally redeem
Series 2007 Bonds pursuant to Section 4.01(a) and any other amounts required to be deposited
therein pursuant to Section 5.05 or pursuant to any Supplemental Indenture.
Amounts in the Redemption Fund shall be disbursed therefrom for the payment of the
Redemption Price of Series 2007 Bonds redeemed pursuant to Section 4.01(a) or Section 4.01(b)
and to pay the Redemption Price of Additional Bonds redeemed under the Supplemental Indenture
pursuant to which such Additional Bonds are issued.
Section 5.05. Reserve Fund. The Trustee shall establish and maintain a special fund
designated the "Reserve Fund." On the Closing Date, the Trustee shall deposit in the Reserve
Fund the amount required to be deposited therein pursuant to Section 3.02. There shall
additionally be deposited in the Reserve Fund, in connection with the issuance of Additional
Bonds, the amount required to be deposited therein under the Supplemental Indenture pursuant to
which such Additional Bonds are issued.
Except as otherwise provided in this Section, all amounts deposited in the Reserve Fund
shall be used and withdrawn by the Trustee 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 or, in accordance with the provisions of this
Section, for the purpose of redeeming Bonds. Transfers shall be made from the Reserve Fund to the
Bond Fund in the event of a deficiency in the Bond Fund, in accordance with Section 5.03.
OHS West:260069578.3 30
So long as no Event of Default shall have occurred and be continuing, any amount in the
Reserve Fund in excess of the Reserve Requirement on September 2 of each year shall be
withdrawn from the Reserve Fund by the Trustee and shall be deposited in the Bond Fund.
Notwithstanding the foregoing before any such deposit shall be made, such amount shall be
available for the payment of any rebate that may be owed under the Code, as specified in a Written
Request of the Community Facilities District delivered to the Trustee.
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, the Trustee shall, upon receipt of a Written Request of the
Community Facilities District, transfer the amount in the Reserve Fund to the Bond Fund or
Redemption Fund, as applicable, to be applied, on the next succeeding Interest Payment Date to the
payment and redemption of all of the Outstanding Bonds.
Whenever Bonds are to be redeemed pursuant to Section 4.01(a) or Section 4.01(b) or the
corresponding provisions of a Supplemental Indenture, a proportionate share, determined as
provided below, of the amount on deposit in the Reserve Fund shall, on the Business Day prior to
the date on which such Bonds are to be redeemed, be transferred by the Trustee from the Reserve
Fund to the Redemption Fund and shall be applied to the redemption of said Bonds; provided,
however, that such amount shall be so transferred only if and to the extent that the amount
remaining on deposit in the Reserve Fund will be at least equal to the Reserve Requirement
(excluding from the calculation thereof said Bonds to be redeemed). Such proportionate share shall
be equal to the largest integral multiple of $5,000 that is not larger than the amount equal to the
product of (a) the amount on deposit in the Reserve Fund on the date five Business Days prior to the
date notice of redemption of such Bonds is required to be given pursuant to the provisions hereof,
times (b) a fraction, the numerator of which is the principal amount of Bonds to be so redeemed and
the denominator of which is the principal amount of Bonds to be Outstanding on the day prior to the
date on which such Bonds are to be so redeemed.
Section 5.06. Rebate Fund. (a) The Trustee shall establish and maintain a special fund
designated the "Rebate Fund." There shall be deposited in the Rebate Fund such amounts as are
required to be deposited therein pursuant to the Tax Certificate, as specified in a Written Request
of the Community Facilities District. All money at any time deposited in the Rebate Fund shall
be held by the Trustee in trust, to the extent required to satisfy the Rebate Requirement, for
payment to the United States of America. Notwithstanding defeasance of the Bonds pursuant to
Article X hereof or anything to the contrary contained herein, all amounts required to be
deposited into or on deposit in the Rebate Fund shall be governed exclusively by this Section and
by the Tax Certificate (which is incorporated herein by reference). The Trustee shall be deemed
conclusively to have complied with such provisions if it follows the written directions of the
Community Facilities District, and shall have no liability or responsibility to enforce compliance
by the Community Facilities District with the terms of the Tax Certificate. The Trustee may
conclusively rely upon the Community Facilities District's determinations, calculations and
certifications required by the Tax Certificate. The Trustee shall have no responsibility to
independently make any calculation or determination or to review the Community Facilities
District's calculations.
OHS West:260069578.3 3I
(b) Any funds remaining in the Rebate Fund after payment in full of all of the Bonds
and after payment of any amounts described in this Section, shall, upon receipt by the Trustee of a
Written Request of the Community Facilities District, be withdrawn by the Trustee and remitted to
the Community Facilities District.
Section 5.07. Administrative Expense Fund. The Trustee shall establish and maintain
a special fund designated the "Administrative Expense Fund." The Trustee shall deposit in the
Administrative Expense Fund the amounts transferred from the Special Tax Fund and required to
be deposited therein pursuant to Section 5.02.
The moneys in the Administrative Expense Fund shall be used and withdrawn by the
Trustee from time to time to pay the Administrative Expenses upon submission of a Written
Request of the Community Facilities District stating (a) the Person to whom payment is to be made,
(b) the amount to be paid, (c) the purpose for which the obligation was incurred and that such
purpose constitutes an Administrative Expense, (d) that such payment is a proper charge against the
Administrative Expense Fund, and (e) that such amounts have not been the subject of a prior
disbursement from the Administrative Expense Fund; in each case together with a statement or
invoice for each amount requested thereunder.
Section 5.08. Investment of Moneys. Except as otherwise provided herein, all moneys
in any of the funds or accounts established pursuant to this Indenture and held by the Trustee
shall be invested by the Trustee solely in Permitted Investments, as directed in writing by the
Community Facilities District two Business Days prior to the making of such investment.
Moneys in all funds and accounts held by the Trustee shall be invested in Permitted Investments
maturing not later than the date on which it is estimated that such moneys will be required for the
purposes specified in this Indenture; provided, however, that Permitted Investments in which
moneys in the Reserve Fund are so invested shall mature no later than the earlier of five years
from the date of investment or the final maturity date of the Bonds; provided, further, that if such
Permitted Investments may be redeemed at par so as to be available on each Interest Payment
Date, any amount in the Reserve Fund may be invested in such redeemable Permitted
Investments maturing on any date on or prior to the final maturity date of the Bonds. Absent
timely written direction from the Community Facilities District, the Trustee shall invest any
funds held by it in Permitted Investments described in clause (h) of the definition thereof.
Subject to the provisions of Section 5.06, all interest, profits and other income received from
the investment of moneys in any fund or account established pursuant to this Indenture (other than
the Capitalized Interest Account and the Reserve Fund) shall be retained therein. Subject to the
provisions of Section 5.06, all interest, profits or other income received from the investment of
moneys in the Capitalized Interest Account shall be transferred to the Acquisition Account. Subject
to the provisions of Section 5.06, all interest, profits or other income received from the investment
of moneys in the Reserve Fund shall, prior to the date on which a Written Certificate of the
Community Facilities District is delivered to the Trustee pursuant to Section 3.04(b), be transferred
to the Acquisition Account and, thereafter, shall be deposited in the Bond Fund; provided, however,
that, notwithstanding the foregoing, any such transfer shall be made only if and to the extent that,
after such transfer, the amount on deposit in the Reserve Fund is at least equal to the Reserve
Requirement.
OHS West:260069578.3 32
Permitted Investments acquired as an investment of moneys in any fund or account
established under this Indenture shall be credited to such fund or account. For the purpose of
determining the amount in any fund or account, all Permitted Investments credited to such fund
shall be valued by the Trustee at the market value thereof, such valuation to be performed not less
frequently than semiannually on or before each February 15 and August 15. The Trustee may
utilize and rely upon securities pricing services available to it for such valuations, including those
available through the Trustee's accounting system.
The Trustee or an affiliate may act as principal or agent in the making or disposing of any
investment. Upon the Written Request of the Community Facilities District, the Trustee shall sell or
present for redemption any Permitted Investments so purchased whenever it shall be necessary to
provide moneys to meet any required payment, transfer, withdrawal or disbursement from the fund
to which such Permitted Investments is credited, and the Trustee shall not be liable or responsible
for any loss resulting from any investment made or sold pursuant to this Section. For purposes of
investment, the Trustee may commingle moneys in any of the funds and accounts established
hereunder. The Community Facilities District acknowledges that to the extent regulations of the
Comptroller of the Currency or other applicable regulatory entity grant the Community Facilities
District the right to receive brokerage confirmations of security transactions as they occur, the
Community Facilities District specifically waives receipt of such confirmations to the extent
permitted by law. The Trustee will furnish the Community Facilities District periodic cash
transaction statements which include detail for all investment transactions made by the Trustee
hereunder.
Section 5.09. State Reporting. If at any time the Trustee fails to pay principal or
interest due on any scheduled payment date for the Bonds, or if funds are withdrawn from the
Reserve Fund to pay principal or interest on the Bonds, the Trustee shall notify the Community
Facilities District in writing of such failure or withdrawal, and the Community Facilities District
shall notify the California Debt and Investment Advisory Commission of such failure or
withdrawal within 10 days of the failure to make such payment or the date of such withdrawal.
OHS West:260069578.3 33
ARTICLE VI
COVENANTS
Section 6.01. Collection of Special Tax Revenues. The Community Facilities District
shall comply with all requirements of the Act so as to assure the timely collection of Special Tax
Revenues, including without limitation, the enforcement of delinquent Special Taxes.
Prior to August 1 of each year, the Community Facilities District shall ascertain from the
Orange County Assessor the relevant parcels on which the Special Taxes are to be levied, taking
into account any parcel splits during the preceding and then current year. The Community Facilities
District shall effect the levy of the Special Taxes each Fiscal Year in accordance with the Ordinance
by each August 10 that the Bonds are Outstanding, or otherwise such that the computation of the
levy is complete before the final date on which the Auditor will accept the transmission of the
Special Tax amounts for the parcels within the Community Facilities District for inclusion on the
next real property tax roll. Upon the completion of the computation of the amounts of the levy, the
Community Facilities District 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.
The Community Facilities District shall fix and levy the amount of Special Taxes within the
Community Facilities District in accordance with the Rate and Method and, subject to the
limitations in the Rate and Method as to the maximum Special Tax that may be levied, in an amount
sufficient to yield the amount required for the payment of principal of and interest on any
Outstanding Bonds becoming due and payable during the Bond Year commencing in such Fiscal
Year, the amount required for any necessary replenishment of the Reserve Fund and the amount
estimated to be sufficient to pay the Administrative Expenses during such year, taking into account
the balances in the funds and accounts established hereunder.
The 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.
Section 6.02. Foreclosure. Pursuant to Section 53356.1 of the Act, the Community
Facilities District hereby covenants with and for the benefit of the Owners of the Bonds that it
will determine or cause to be determined, no later than August 15 of each year, whether or not
any owners of property within the Community Facilities District are delinquent in the payment of
Special Taxes and, if such delinquencies exist, the Community Facilities District will order and
cause to be commenced no later than October 1, and thereafter diligently prosecute, an action in
the superior court to foreclose the lien of any Special Taxes or installment thereof not paid when
due; provided, however, that the Community Facilities District shall not be required to order the
commencement of foreclosure proceedings if (a) the total Special Tax delinquency in the
Community Facilities District for such Fiscal Year is less than 5% of the total Special Tax levied
in such Fiscal Year, and (b) the amount then on deposit in the Reserve Fund is equal to the
Reserve Requirement. Notwithstanding the foregoing, if the Community Facilities District
OHS West:260069578.3 34
determines that any single property owner in the Community Facilities District is delinquent in
excess of $5,000 in the payment of the Special Tax, then the Community Facilities District will
diligently institute, prosecute and pursue foreclosure proceedings against such property owner.
Section 6.03. Punctual Payment. The Community Facilities District shall punctually
pay or cause to be paid the principal, premium, if any, and interest to become due in respect of
all the Bonds, in strict conformity with the terms of the Bonds and of this Indenture, according to
the true intent and meaning thereof, but only out of Net Special Tax Revenues and other assets
pledged for such payment as provided in this Indenture and received by the Community
Facilities District or the Trustee.
Section 6.04. Extension of Payment of Bonds. The Community Facilities District shall
not directly or indirectly extend or assent to the extension of the maturity of any of the Bonds or
the time of payment of any claims for interest by the purchase of such Bonds or by any other
arrangement, and in case the maturity of any of the Bonds or the time of payment of any such
claims for interest shall be extended, such Bonds or claims for interest shall not be entitled, in
case of any default hereunder, to the benefits of this Indenture, except subject to the prior
payment in full of the principal of all of the Bonds then Outstanding and of all claims for interest
thereon which shall not have been so extended. Nothing in this Section shall be deemed to limit
the right of the Community Facilities District to issue Bonds for the purpose of refunding any
Outstanding Bonds, and such issuance shall not be deemed to constitute an extension of maturity
of the Bonds.
Section 6.05. Against Encumbrances. The Community Facilities District shall not
create, or permit the creation of, any pledge, lien, charge or other encumbrance upon the Special
Tax Revenues and other assets pledged under this Indenture while any of the Bonds are
Outstanding, except as permitted by this Indenture.
Section 6.06. Power to Issue Bonds and Make Pledge. The Community Facilities
District is duly authorized pursuant to the Act to issue the Bonds and to enter into this Indenture
and to pledge the Net Special Tax Revenues and other assets pledged under this Indenture in the
manner and to the extent provided in this Indenture. The Bonds and the provisions of this
Indenture are and will be the legal, valid and binding special obligations of the Community
Facilities District in accordance with their terms, and the Community Facilities District and the
Trustee (subject to the provisions of Article VIII) shall at all times, to the extent permitted by
law, defend, preserve and protect said pledge of Net Special Tax Revenues and other assets and
all the rights of the Bond Owners under this Indenture against all claims and demands of all
Persons whomsoever.
Section 6.07. Accounting Records and Financial Statements. The Trustee shall at all
times keep, or cause to be kept, proper books of record and account, prepared in accordance with
prudent corporate trust industry standards, in which accurate entries shall be made of all
transactions made by it relating to the proceeds of the Bonds, the Special Tax Revenues and all
funds and accounts established by it pursuant to this Indenture. Such books of record and
account shall be available for inspection by the Community Facilities District, during regular
business hours and upon reasonable notice and under reasonable circumstances as agreed to by
the Trustee. The Trustee shall deliver to the Community Facilities District a monthly accounting
OHS West:260069578.3 35
of the funds and accounts it holds under this Indenture; provided, however, that the Trustee shall
not be obligated to deliver an accounting for any fund or account that (a) has a balance of zero,
and (b) has not had any activity since the last reporting date.
Section 6.08. Tax Covenants. (a) The Community Facilities District shall not take any
action, or fail to take any action, if such action or failure to take such action would adversely
affect the exclusion from gross income of interest on the Series 2007 Bonds under Section 103 of
the Code. Without limiting the generality of the foregoing, the Community Facilities District
shall comply with the requirements of the Tax Certificate, which is incorporated herein as if fully
set forth herein. This covenant shall survive payment in full or defeasance of the Bonds.
(b) In the event that at any time the Community Facilities District is of the opinion that
for purposes of this Section it is necessary or helpful to restrict or limit the yield on the investment
of any moneys held by the Trustee in any of the funds or accounts established hereunder, the
Community Facilities District shall so instruct the Trustee in writing, and the Trustee shall take such
action as maybe necessary in accordance with such instructions.
(c) Notwithstanding any provisions of this Section, if the Community Facilities District
shall provide to the Trustee an opinion of Bond Counsel to the effect that any specified action
required under this Section is no longer required or that some further or different action is required
to maintain the exclusion from federal income tax of interest on the Series 2007 Bonds, the Trustee
may conclusively rely on such opinion in complying with the requirements of this Section and of
the Tax Certificate, and the covenants hereunder shall be deemed to be modified to that extent.
Section 6.09. Continuing Disclosure. The Community Facilities District and the
Trustee shall comply with and carry out all of the provisions of the District Continuing
Disclosure Agreement applicable to each of them respectively. Notwithstanding any other
provision of this Indenture, failure of the Community Facilities District or the Trustee to comply
with the District Continuing Disclosure Agreement shall not be considered an Event of Default;
provided, however, that the Trustee may (and, at the written direction of any Participating
Underwriter or the holders of at least 25% aggregate principal amount of Outstanding Series
2007 Bonds, and upon indemnification of the Trustee to its reasonable satisfaction, shall) or any
holder or beneficial owner of the Series 2007 Bonds may, take such actions as may be necessary
and appropriate to compel performance, including seeking mandate or specific performance by
court order.
Each Developer and the Trustee have entered into a Developer Continuing Disclosure
Agreement. Notwithstanding any other provision of this Indenture, failure of a Developer or the
Trustee to comply with the applicable Developer Continuing Disclosure Agreement shall not be
considered an Event of Default; provided, however, that the Trustee may (and, at the written
direction of any Participating Underwriter or the holders of at least 25% aggregate principal
amount of Outstanding Series 2007 Bonds, and upon indemnification of the Trustee to its
reasonable satisfaction, shall) or any holder or beneficial owner of the Series 2007 Bonds may,
take such actions as may be necessary and appropriate to compel performance, including seeking
mandate or specific performance by court order.
OHS West:260069578.3 36
Section 6.10. Annual Reports to the California Debt and Investment Advisory
Commission. Not later than October 30 of each year, commencing October 30, 2007 and until
the October 30 following the final maturity of the Bonds, the Community Facilities District shall
supply to the California Debt and Investment Advisory Commission the information required to
be provided thereto pursuant to Section 53359.5(b) of the Act. Such information shall be made
available to any Owner upon written request to the Community Facilities District accompanied
by a fee determined by the Community Facilities District to pay the costs of the Community
Facilities District in connection therewith. The Community Facilities District shall in no event
be liable to any Owner or any other person or entity in connection with any error in any such
information.
Section 6.11. Non-Cash Payments of Special Taxes. The Community Facilities
District shall not authorize owners of taxable parcels within the Community Facilities District to
satisfy Special Tax obligations by the tender of Bonds unless the Community Facilities District
shall have first obtained a report of an Independent Consultant certifying that doing so would not
result in the Community Facilities District having insufficient Special Tax Revenues to pay the
principal of and interest on all Outstanding Bonds when due.
Section 6.12. Reduction in Special Taxes. The Community Facilities District shall not
initiate proceedings under the Act to modify the Rate and Method if such modification would
adversely affect the security for the Bonds. If an initiative or referendum measure is proposed
that purports to modify the Rate and Method in a manner that would adversely affect the security
for the Bonds, the Community Facilities District 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 Bonds.
Section 6.13. Further Assurances. The Community Facilities District shall make,
execute and deliver any and all such further agreements, instruments and assurances as may be
reasonably necessary or proper to carry out the intention or to facilitate the performance of this
Indenture and for the better assuring and confirming unto the Owners of the Bonds of the rights
and benefits provided in this Indenture.
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ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Section 7.01. Events of Default. The following events shall be Events of Default:
(a) Failure to pay any installment of principal of any Bonds when and as the
same shall become due and payable, whether at maturity as therein expressed, by
proceedings for redemption or otherwise.
(b) Failure to pay any installment of interest on any Bonds when and as the
same shall become due and payable.
(c) Failure by the Community Facilities District to observe and perform any
of the other covenants, agreements or conditions on its part in this Indenture or in the
Bonds contained, if such failure shall have continued for a period of 60 days after written
notice thereof, specifying such failure and requiring the same to be remedied, shall have
been given to the Community Facilities District by the Trustee or the Owners of not less
than 5% in aggregate principal amount of the Bonds at the time Outstanding; provided,
however, if in the reasonable opinion of the Community Facilities District the failure
stated in the notice can be corrected, but not within such 60 day period, such failure shall
not constitute an Event of Default if corrective action is instituted by the Community
Facilities District within such 60 day period and the Community Facilities District shall
thereafter diligently and in good faith cure such failure in a reasonable period of time.
(d) The Community Facilities District or the City shall commence a voluntary
case under Title 11 of the United States Code or any substitute or successor statute.
Section 7.02. Foreclosure. If any Event of Default shall occur under Section 7.01(a) or
Section 7.01(b) then, and in each and every such case during the continuance of such Event of
Default, the Trustee may, or at the written direction of the Owners of not less than a majority in
aggregate principal amount of the Bonds at the time Outstanding, and upon being indemnified to
its satisfaction therefor, shall, commence foreclosure against any parcels of land in the
Community Facilities District with delinquent Special Taxes, as provided in Section 53356.1 of
the Act; provided, however, that the Trustee need not commence any such foreclosure if such
foreclosure has been commenced by the Community Facilities District.
Section 7.03. Other Remedies. If an Event of Default shall have occurred under
Section 7.01, the Trustee shall have the right:
(a) by mandamus, suit, action or proceeding, to compel the Community
Facilities District and its officers, agents or employees to perform each and every term,
provision and covenant contained in this Indenture and in the Bonds, and to require the
carrying out of any or all such covenants and agreements of the Community Facilities
District and the fulfillment of all duties imposed upon it by this Indenture and the Act;
(b) by suit, action or proceeding in equity, to enjoin any acts or things which
are unlawful, or the violation of any of the Trustee's or Bond Owner's rights; or
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(c) by suit, action or proceeding in any court of competent jurisdiction, to
require the Community Facilities District and its officers and employees to account as if
it and they were the trustees of an express trust.
Section 7.04. Application of Net Special Tax Revenues After Default. If an Event of
Default shall occur and be continuing, all Net Special Tax Revenues and any other funds
thereafter received by the Trustee under any of the provisions of this Indenture shall be applied
by the Trustee as follows and in the following order:
(a) To the payment of any expenses necessary in the opinion of the Trustee to
protect the interests of the Owners of the Bonds and payment of reasonable fees, charges
and expenses of the Trustee (including reasonable fees and disbursements of its counsel)
incurred in and about the performance of its powers and duties under this Indenture;
(b) To the payment of the principal of and interest then due with respect to the
Bonds (upon presentation of the Bonds to be paid, and stamping thereon of the payment
if only partially paid, or surrender thereof if fully paid) subject to the provisions of this
Indenture, as follows:
Fund.
First: To the payment to the Persons entitled thereto of all installments of
interest then due in the order of the maturity of such installments and, if the amount
available shall not be sufficient to pay in full any installment or installments
maturing on the same date, then to the payment thereof ratably, according to the
amounts due thereon, to the Persons entitled thereto, without any discrimination or
preference; and
Second: To the payment to the Persons entitled thereto of the unpaid
principal of any Bonds which shall have become due, whether at maturity or by call
for redemption, with interest on the overdue principal at the rate borne by the
respective Bonds on the date of maturity or redemption, and, if the amount available
shall not be sufficient to pay in full all the Bonds, together with such interest, then to
the payment thereof ratably, according to the amounts of principal due on such date
to the Persons entitled thereto, without any discrimination or preference; and
(c) Any remaining funds shall be transferred by the Trustee to the Special Tax
Section 7.05. Power of Trustee to Enforce. All rights of action under this Indenture or
the Bonds or otherwise may be prosecuted and enforced by the Trustee without the possession of
any of the Bonds or the production thereof in any proceeding relating thereto, and any such suit,
action or proceeding instituted by the Trustee shall be brought in the name of the Trustee for the
benefit and protection of the Owners of such Bonds, subject to the provisions of this Indenture.
Section 7.06. Bond Owners Direction of Proceedings. Anything in this Indenture to
the contrary notwithstanding, the Owners of a majority in aggregate principal amount of the
Bonds then Outstanding shall have the right, by an instrument or concurrent instruments in
writing executed and delivered to the Trustee, and upon indemnification of the Trustee to its
reasonable satisfaction, to direct the method of conducting all remedial proceedings taken by the
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Trustee hereunder, provided that such direction shall not be otherwise than in accordance with
law and the provisions of this Indenture, and that the Trustee shall have the right to decline to
follow any such direction which in the opinion of the Trustee would be unjustly prejudicial to
Bond Owners not parties to such direction.
Section 7.07. Limitation on Bond Owners' Right to Sue. No Owner of any Bonds
shall have the right to institute any suit, action or proceeding at law or in equity, for the
protection or enforcement of any right or remedy under this Indenture, the Act or any other
applicable law with respect to such Bonds, unless (a) such Owner shall have given to the Trustee
written notice of the occurrence of an Event of Default, (b) the Owners of a majority in aggregate
principal amount of the Bonds then Outstanding shall have made written request upon the
Trustee to exercise the powers hereinbefore granted or to institute such suit, action or proceeding
in its own name, (c) such Owner or said Owners shall have tendered to the Trustee indemnity
against the costs, expenses and liabilities to be incurred in compliance with such request, and (d)
the Trustee shall have refused or omitted to comply with such request for a period of 60 days
after such written request shall have been received by, and said tender of indemnity shall have
been made to, the Trustee.
Such notification, request, tender of indemnity and refusal or omission are hereby declared,
in every case, to be conditions precedent to the exercise by any Owner of Bonds of any remedy
hereunder or under law; it being understood and intended that no one or more Owners of Bonds
shall have any right in any manner whatever by his or their action to affect, disturb or prejudice the
security of this Indenture or the rights of any other Owners of Bonds, or to enforce any right under
the Bonds, this Indenture, the Act or other applicable law with respect to the Bonds, except in the
manner herein provided, and that all proceedings at law or in equity to enforce any such right shall
be instituted, had and maintained in the manner herein provided and for the benefit and protection of
all Owners of the Outstanding Bonds, subject to the provisions of this Indenture.
Section 7.08. Absolute Obligation. Nothing in Section 7.07 or in any other provision
of this Indenture or in the Bonds contained shall affect or impair the obligation of the
Community Facilities District, which is absolute and unconditional, to pay the principal of and
interest on the Bonds to the respective Owners of the Bonds at their respective dates of maturity,
or upon call for redemption, as herein provided, but only out of the Net Special Tax Revenues
and other assets herein pledged therefor and received by the Community Facilities District or the
Trustee, or affect or impair the right of such Owners, which is also absolute and unconditional, to
enforce such payment by virtue of the contract embodied in the Bonds.
Section 7.09. Termination of Proceedings. In case any proceedings taken by the
Trustee or any one or more Bond Owners on account of any Event of Default shall have been
discontinued or abandoned for any reason or shall have been determined adversely to the Trustee
or the Bond Owners, then in every such case the Community Facilities District, the Trustee and
the Bond Owners, subject to any determination in such proceedings, shall be restored to their
former positions and rights hereunder, severally and respectively, and all rights, remedies,
powers and duties of the Community Facilities District, the Trustee and the Bond Owners shall
continue as though no such proceedings had been taken.
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Section 7.10. Remedies Not Exclusive. No remedy herein conferred upon or reserved
to the Trustee or to the Owners of the Bonds is intended to be exclusive of any other remedy or
remedies, and each and every such remedy, to the extent permitted by law, shall be cumulative
and in addition to any other remedy given hereunder or now or hereafter existing at law or in
equity or otherwise.
Section 7.11. No Waiver of Default. No delay or omission of the Trustee or of any
Owner of the Bonds to exercise any right or power arising upon the occurrence of any default
shall impair any such right or power or shall be construed to be a waiver of any such default or
an acquiescence therein, and every power and remedy given by this Indenture to the Trustee or to
the Owners of the Bonds may be exercised from time to time and as often as may be deemed
expedient.
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ARTICLE VIII
TRUSTEE
Section 8.01. Duties and Liabilities of Trustee. (a) Duties of Trustee Generally. The
Trustee shall, prior to an Event of Default, and after the curing or waiver of all Events of Default
which may have occurred, perform such duties and only such duties as are expressly and
specifically set forth in this Indenture. The Trustee shall, during the existence of any Event of
Default which has not been cured or waived, exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of such person's own affairs.
(b) Removal of Trustee. The Community Facilities District may upon 30 days prior
written notice remove the Trustee at any time unless an Event of Default shall have occurred and
then be continuing, and shall remove the Trustee if at any time requested to do so by an instrument
or concurrent instruments in writing signed by the Owners of not less than a majority in aggregate
principal amount of the Bonds then Outstanding (or their attorneys duly authorized in writing) or if
at any time the Trustee shall cease to be eligible in accordance with subsection (e) of this Section, or
shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the
Trustee or its property shall be appointed, or any public officer shall take control or charge of the
Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, in
each case by giving written notice of such removal to the Trustee and thereupon shall appoint a
successor Trustee by an instrument in writing.
(c) Resignation of Trustee. The Trustee may at any time resign by giving written notice
of such resignation by first class mail, postage prepaid, to the Community Facilities District, and to
the Bond Owners at the respective addresses shown on the Registration Books. Upon receiving
such notice of resignation, the Community Facilities District shall promptly appoint a successor
Trustee by an instrument in writing. The Trustee shall not be relieved of its duties until such
successor Trustee has accepted appointment.
(d) Appointment of Successor Trustee. Any removal or resignation of the Trustee and
appointment of a successor Trustee shall become effective upon acceptance of appointment by the
successor Trustee; provided, however, that under any circumstances the successor Trustee shall be
qualified as provided in subsection (e) of this Section. If no qualified successor Trustee shall have
been appointed and have accepted appointment within 45 days following giving notice of removal
or notice of resignation as aforesaid, the resigning Trustee or any Bond Owner (on behalf of himself
and all other Bond Owners) may petition any court of competent jurisdiction for the appointment of
a successor Trustee, and such court may thereupon, after such notice (if any) as it may deem proper,
appoint such successor Trustee. Any successor Trustee appointed under this Indenture shall signify
its acceptance of such appointment by executing and delivering to the Community Facilities District
and to its predecessor Trustee a written acceptance thereof, and after payment by the Community
Facilities District of all unpaid fees and expenses of the predecessor Trustee, then such successor
Trustee, without any further act, deed or conveyance, shall become vested with all the moneys,
estates, properties, rights, powers, trusts, duties and obligations of such predecessor Trustee, with
like effect as if originally named Trustee herein; but, nevertheless at the Written Request of the
Community Facilities District or the request of the successor Trustee, such predecessor Trustee shall
OHS West:260069578.3 42
execute and deliver any and all instruments of conveyance or further assurance and do such other
things as may reasonably be required for more fully and certainly vesting in and confirming to such
successor Trustee all the right, title and interest of such predecessor Trustee in and to any property
held by it under this Indenture and shall pay over, transfer, assign and deliver to the successor
Trustee any money or other property subject to the trusts and conditions herein set forth. Upon
request of the successor Trustee, the Community Facilities District shall execute and deliver any and
all instruments as maybe reasonably required for more fully and certainly vesting in and confirming
to such successor Trustee all such moneys, estates, properties, rights, powers, trusts, duties and
obligations. Upon acceptance of appointment by a successor Trustee as provided in this subsection,
the Community Facilities District shall mail or cause the successor Trustee to mail, by first class
mail postage prepaid, a notice of the succession of such Trustee to the trusts hereunder to each
rating agency which then maintains a rating on the Bonds and to the Bond Owners at the addresses
shown on the Registration Books. If the Community Facilities District fails to mail such notice
within 15 days after acceptance of appointment by the successor Trustee, the successor Trustee shall
cause such notice to be mailed at the expense of the Community Facilities District.
(e) Qualifications of Trustee. The Trustee shall be a trust company or bank having trust
powers in good standing in or incorporated under the laws of the United States or any state thereof,
having (or if such bank or trust company is a member of a bank holding company system, its parent
bank holding company shall have) a combined capital and surplus of at least $75,000,000, and
subject to supervision or examination by federal or state agency. If such bank or trust company
publishes a report of condition at least annually, pursuant to law or to the requirements of any
supervising or examining agency above referred to, then for the purpose of this subsection the
combined capital and surplus of such bank 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.
In case at any time the Trustee shall cease to be eligible in accordance with the provisions of
this subsection (e), the Trustee shall resign immediately in the manner and with the effect specified
in this Section.
Section 8.02. Merger or Consolidation. Any bank or trust company into which the
Trustee may be merged or converted or with which it may be consolidated or any bank or trust
company resulting from any merger, conversion or consolidation to which it shall be a party or
any bank or trust company to which the Trustee may sell or transfer all or substantially all of its
corporate trust business, provided such bank or trust company shall be eligible under subsection
(e) of Section 8.01 shall be the successor to such Trustee, without the execution or filing of any
paper or any further act, anything herein to the contrary notwithstanding.
Section 8.03. Liability of Trustee. (a) The recitals of facts herein and in the Bonds
contained shall betaken as statements of the Community Facilities District, and the Trustee shall
not assume responsibility for the correctness of the same, or make any representations as to the
validity or sufficiency of this Indenture or of the Bonds or shall incur any responsibility in
respect thereof, other than as expressly stated herein in connection with the respective duties or
obligations herein or in the Bonds assigned to or imposed upon it. The Trustee shall, however,
be responsible for its representations contained in its certificate of authentication on the Bonds.
The Trustee makes no representations as to the validity or sufficiency of this Indenture or of any
Bonds, or in respect of the security afforded by this Indenture and the Trustee shall incur no
OHS West:260069578.3 43
responsibility in respect thereof. The Trustee shall be under no responsibility or duty with
respect to the issuance of the Bonds for value, the application of the proceeds thereof except to
the extent that such proceeds are received by it in its capacity as Trustee, or the application of
any moneys paid to the Community Facilities District or others in accordance with this
Indenture. The Trustee shall not be liable in connection with the performance of its duties
hereunder, except for its own negligence or willful misconduct. The Trustee shall not be liable
for any action taken or omitted by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture. The Trustee may become
the Owner of Bonds with the same rights it would have if it were not Trustee, and, to the extent
permitted by law, may act as depository for and permit any of its officers or directors to act as a
member of, or in any other capacity with respect to, any committee formed to protect the rights
of Bond Owners, whether or not such committee shall represent the Owners of a majority in
aggregate principal amount of the Bonds then Outstanding.
(b) The Trustee shall not be liable for any error of judgment made in good faith by a
responsible officer, unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts.
(c) The Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the direction of the Owners of not less than a majority in
aggregate principal amount of the Bonds at the time Outstanding relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee under this Indenture.
(d) No provision of this Indenture shall require the Trustee to risk or advance its own
funds. The Trustee may execute any of its powers or duties hereunder through attorneys, agents or
receivers and shall not be answerable for the actions of such attorneys, agents or receivers if selected
by it with reasonable care.
(e) The Trustee shall not be deemed to have knowledge of an Event of Default
hereunder unless it has actual knowledge thereof.
(f) The Trustee shall have no responsibility with respect to any information, statement
or recital in any official statement or any other disclosure material prepared or distributed with
respect to the Bonds.
Section 8.04. Right to Rely on Documents. The Trustee shall be protected in acting
upon any notice, resolution, request, consent, order, certificate, report, opinion, bonds or other
paper or document believed by it to be genuine and to have been signed or presented by the
proper party or parties. The Trustee may consult with counsel, who may be counsel of or to the
Community Facilities District, 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.
Whenever in the administration of the duties imposed upon it by this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or established prior to taking or
suffering any action hereunder, such matter (unless other evidence in respect thereof be herein
OHS West:260069578.3 44
specifically prescribed) may be deemed to be conclusively proved and established by a Written
Certificate of the Community Facilities District, and such Written Certificate shall be full warrant to
the Trustee for any action taken or suffered in good faith under the provisions of this Indenture in
reliance upon such Written Certificate, but in its discretion the Trustee may, in lieu thereof, accept
other evidence of such matter or may require such additional evidence as it may deem reasonable.
Section 8.05. Preservation and Inspection of Documents. All documents received by
the Trustee under the provisions of this Indenture shall be retained in its possession and shall be
subject during business hours and upon reasonable notice to the inspection of the Community
Facilities District, the Owners and their agents and representatives duly authorized in writing.
Section 8.06. Compensation and Indemnification. Subject to the provisions of
Section 11.01, the Community Facilities District shall pay to the Trustee from time to time all
reasonable compensation pursuant to apre-approved fee letter for all services rendered under this
Indenture, and also all reasonable expenses, charges, legal and consulting fees pursuant to a pre-
approved fee letter and other disbursements pursuant to apre-approved fee letter and those of its
attorneys, agents and employees, incurred in and about the performance of their powers and
duties under this Indenture. Subject to the provisions of Section 11.01, the Community Facilities
District further agrees, to the extent permitted by law, to indemnify and save the Trustee
harmless against any liabilities, costs, claims or expenses, including those of its attorneys, which
it may incur in the exercise and performance of its powers and duties hereunder and under any
related documents, including the enforcement of any remedies and the defense of any suit, and
which are not due to its negligence or its willful misconduct. The duty of the Community
Facilities District to indemnify the Trustee shall survive the termination and discharge of this
Indenture.
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ARTICLE IX
MODIFICATION OR AMENDMENT
Section 9.01. Amendments Permitted. (a) This Indenture and the rights and
obligations of the Community Facilities District, the Owners of the Bonds and the Trustee may
be modified or amended from time to time and at any time by a Supplemental Indenture, which
the Community Facilities District and the Trustee may enter into with the written consent of the
Owners of a majority in aggregate principal amount of all Bonds then Outstanding, which shall
have been filed with the Trustee. No such modification or amendment shall (i) extend the fixed
maturity of any Bonds, reduce the amount of principal thereof or the rate of interest thereon, alter
the redemption provisions thereof or extend the time of payment thereof, without the consent of
the Owner of each Bond so affected, or (ii) reduce the aforesaid percentage of Bonds the consent
of the Owners of which is required to effect any such modification or amendment, without the
consent of the Owners of all of the Bonds then Outstanding, or (iii) permit the creation of any
lien on the Net Special Tax Revenues and other assets pledged under this Indenture prior to or on
a parity with the lien created by this Indenture or deprive the Owners of the Bonds of the lien
created by this Indenture on such Net Special Tax Revenues and other assets (except as expressly
provided in this Indenture), without the consent of the Owners of all of the Bonds then
Outstanding. It shall not be necessary for the consent of the Bond Owners to approve the
particular form of any Supplemental Indenture, but it shall be sufficient if such consent shall
approve the substance thereof.
(b) This Indenture and the rights and obligations of the Community Facilities District,
the Trustee and the Owners of the Bonds may also be modified or amended from time to time and at
any time by a Supplemental Indenture, which the Community Facilities District and the Trustee
may enter into without the consent of any Bond Owners for any one or more of the following
purposes:
(i) to add to the covenants and agreements of the Community
Facilities District in this Indenture contained other covenants and agreements
thereafter to be observed, to pledge or assign additional security for the Bonds (or
any portion thereof), or to surrender any right or power herein reserved to or
conferred upon the Community Facilities District;
(ii) to make such provisions for the purpose of curing any ambiguity,
inconsistency or omission, or of curing or correcting any defective provision
contained in this Indenture;
(iii) to provide for the issuance of one or more Series of Additional
Bonds, and to provide the terms and conditions under which such Series of
Additional Bonds may be issued, subject to and in accordance with the provisions
of Article III;
(iv) to modify, amend or supplement this Indenture in such manner as
to permit the qualification hereof under the Trust Indenture Act of 1939, as
amended, or any similar federal statute hereafter in effect, and to add such other
OHS West:260069578.3 46
terms, conditions and provisions as may be permitted by said act or similar federal
statute;
(v) to modify, amend or supplement this Indenture in such manner as
to cause interest on the Bonds to be excludable from gross income for purposes of
federal income taxation by the United States of America; and
(vi) in any other respect whatsoever as the Community Facilities
District may deem necessary or desirable, provided that such modification or
amendment does not materially adversely affect the interests of the Bond Owners
hereunder.
(c) Promptly after the execution by the Community Facilities District and the Trustee
of any Supplemental Indenture, the Trustee shall mail a notice (the form of which shall be
furnished to the Trustee by the Community Facilities District), by first class mail postage
prepaid, setting forth in general terms the substance of such Supplemental Indenture, to the
Owners of the Bonds at the respective addresses shown on the Registration Books. Any failure
to give such notice, or any defect therein, shall not, however, in any way impair or affect the
validity of any such Supplemental Indenture.
Section 9.02. Effect of Supplemental Indenture. Upon the execution of any
Supplemental Indenture pursuant to this Article, this Indenture shall be deemed to be modified
and amended in accordance therewith, and the respective rights, duties and obligations under this
Indenture of the Community Facilities District, the Trustee and all Owners of Bonds Outstanding
shall thereafter be determined, exercised and enforced hereunder subject in all respects to such
modification and amendment, and all the terms and conditions of any such Supplemental
Indenture shall be deemed to be part of the terms and conditions of this Indenture for any and all
purposes.
Section 9.03. Endorsement of Bonds; Preparation of New Bonds. Bonds delivered
after the execution of any Supplemental Indenture pursuant to this Article may, and if the
Community Facilities District so determines shall, bear a notation by endorsement or otherwise
in form approved by the Community Facilities District and the Trustee as to any modification or
amendment provided for in such Supplemental Indenture, and, in that case, upon demand of the
Owner of any Bonds Outstanding at the time of such execution and presentation of his Bonds for
the purpose at the Office of the Trustee a suitable notation shall be made on such Bonds. If the
Supplemental Indenture shall so provide, new Bonds so modified as to conform, in the opinion
of the Community Facilities District and the Trustee, to any modification or amendment
contained in such Supplemental Indenture, shall be prepared and executed by the Community
Facilities District and authenticated by the Trustee, and upon demand of the Owners of any
Bonds then Outstanding shall be exchanged at the Office of the Trustee, without cost to any
Bond Owner, for Bonds then Outstanding, upon surrender for cancellation of such Bonds, in
equal aggregate principal amount of the same interest rate and maturity.
Section 9.04. Amendment of Particular Bonds. The provisions of this Article shall
not prevent any Bond Owner from accepting any amendment as to the particular Bonds held by
such Owner.
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ARTICLE X
DEFEASANCE
Section 10.01. Discharge of Indenture. If the Community Facilities District shall pay or
cause to be paid or there shall otherwise be paid to the Owners of all Outstanding Bonds the
principal thereof and the interest and premium, if any, thereon at the times and in the manner
stipulated herein and therein, then the Owners of such Bonds shall cease to be entitled to the
pledge of the Net Special Tax Revenues and the other assets as provided herein, and all
agreements, covenants and other obligations of the Community Facilities District to the Owners
of such Bonds hereunder shall thereupon cease, terminate and become void and be discharged
and satisfied. In such event, the Trustee shall execute and deliver to the Community Facilities
District all such instruments as may be necessary or desirable to evidence such discharge and
satisfaction, and the Trustee shall pay over or deliver to the Community Facilities District all
money or securities held by it pursuant hereto which are not required for the payment of the
principal of and interest and premium, if any, on such Bonds.
Subject to the provisions of the above paragraph, when any of the Bonds shall have been
paid and if, at the time of such payment, the Community Facilities District shall have kept,
performed and observed all of the covenants and promises in such Bonds and in this Indenture
required or contemplated to be kept, performed and observed by the Community Facilities District
or on its part on or prior to that time, then this Indenture shall be considered to have been discharged
in respect of such Bonds and such Bonds shall cease to be entitled to the lien of this Indenture and
such lien and all covenants, agreements and other obligations of the Community Facilities District
hereunder shall cease, terminate become void and be completely discharged as to such Bonds.
Notwithstanding the satisfaction and discharge of this Indenture or the discharge of this
Indenture in respect of any Bonds, those provisions of this Indenture relating to the maturity of the
Bonds, interest payments and dates thereof, exchange and transfer of Bonds, replacement of
mutilated, destroyed, lost or stolen Bonds, the safekeeping and cancellation of Bonds, non-
presentment of Bonds, and the duties of the Trustee in connection with all of the foregoing, shall
remain in effect and shall be binding upon the Trustee and the Owners of the Bonds and the Trustee
shall continue to be obligated to hold in trust any moneys or investments then held by the Trustee
for the payment of the principal of and interest and premium, if any, on the Bonds, to pay to the
Owners of Bonds the funds so held by the Trustee as and when such payment becomes due.
Notwithstanding the satisfaction and discharge of this Indenture or the discharge of this Indenture in
respect of any Bonds, those provisions of this Indenture contained in Section 8.06 relating to the
compensation of the Trustee shall remain in effect and shall be binding upon the Trustee and the
Community Facilities District.
Section 10.02. Bonds Deemed To Have Been Paid. If moneys shall have been set aside
and held by the Trustee for the payment or redemption of any Bonds and the interest thereon at
the maturity or redemption date thereof, such Bonds shall be deemed to have been paid within
the meaning and with the effect provided in Section 10.01. Any Outstanding Bonds shall prior to
the maturity date or redemption date thereof be deemed to have been paid within the meaning of
and with the effect expressed in Section 10.01 if (a) in case any of such Bonds are to be
redeemed on any date prior to their maturity date, the Community Facilities District shall have
OHS West:260069578.3 48
given to the Trustee in form satisfactory to it irrevocable instructions to mail, on a date in
accordance with the provisions of Section 4.02, notice of redemption of such Bonds on said
redemption date, said notice to be given in accordance with Section 4.02, (b) there shall have
been deposited with the Trustee either (i) money in an amount which shall be sufficient, or (ii)
Federal Securities that are not subject to redemption other than at the option of the holder
thereof, the interest on and principal of which when paid will provide money which, together
with the money, if any deposited with the Trustee at the same time, shall, as verified by an
independent certified public accountant, be sufficient to pay when due the interest to become due
on such Bonds on and prior to the maturity date or redemption date thereof, as the case may be,
and the principal of and premium, if any, on such Bonds, which sufficiency shall be verified in a
report of an independent firm of nationally recognized certified public accountants, and (c) in the
event such Bonds are not by their terms subject to redemption within the next succeeding 60
days, the Community Facilities District shall have given the Trustee in form satisfactory to it
irrevocable instructions to mail as soon as practicable, a notice to the owners of such Bonds that
the deposit required by clause (b) above has been made with the Trustee and that such Bonds, are
deemed to have been paid in accordance with this Section and stating the maturity date or
redemption date upon which money is to be available for the payment of the principal of and
premium, if any, on such Bonds.
Section 10.03. Payment of Bonds After Discharge of Indenture. Notwithstanding any
provisions of this Indenture, to the extent permitted by law, any moneys held by the Trustee in
trust for the payment of the principal of, or premium or interest on, any Bonds and remaining
unclaimed for two years after the date of deposit of such moneys, shall be repaid to the
Community Facilities District free from the trusts created by this Indenture, and all liability of
the Trustee with respect to such moneys shall thereupon cease; provided, however, that before
the repayment of such moneys to the Community Facilities District as aforesaid, the Trustee may
(at the cost of the Community Facilities District) first mail, by first class mail postage prepaid, to
the Owners of Bonds which have not yet been paid, at the respective addresses shown on the
Registration Books, a notice, in such form as may be deemed appropriate by the Trustee with
respect to the Bonds so payable and not presented and with respect to the provisions relating to
the repayment to the Community Facilities District of the moneys held for the payment thereof.
OHS West:260069578.3 49
ARTICLE XI
MISCELLANEOUS
Section 11.01. Special Obligations. All obligations of the Community Facilities District
under this Indenture shall be special obligations of the Community Facilities District, payable
solely from Special Tax Revenues and the other assets pledged therefor hereunder; provided,
however, that all obligations of the Community Facilities District under the Bonds shall be
special obligations of the Community Facilities District, payable solely from Net Special Tax
Revenues and the other assets pledged therefor hereunder. Neither the faith and credit nor the
taxing power of the Community Facilities District (except to the limited extent set forth herein),
the City, or the State of California, or any political subdivision thereof, is pledged to the payment
of the Bonds.
Section 11.02. Successor Is Deemed Included in All References to Predecessor.
Whenever in this Indenture either the Community Facilities District or the Trustee 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 Indenture contained by or on behalf of the Community
Facilities District or the Trustee shall bind and inure to the benefit of the respective successors
and assigns thereof whether so expressed or not.
Section 11.03. Limitation of Rights. Nothing in this Indenture or in the Bonds
expressed or implied is intended or shall be construed to give to any Person other than the
Trustee, the Community Facilities District and the Owners of the Bonds, any legal or equitable
right, remedy or claim under or in respect of this Indenture or any covenant, condition or
provision therein or herein contained, and all such covenants, conditions and provisions are and
shall be held to be for the sole and exclusive benefit of the Trustee, the Community Facilities
District and the Owners of the Bonds.
Section 11.04. Waiver of Notice; Requirement of Mailed Notice. Whenever in this
Indenture the giving of notice by mail or otherwise is required, the giving of such notice may be
waived in writing by the Person entitled to receive such notice and in any such case the giving or
receipt of such notice shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver. Whenever in this Indenture any notice shall be required to be given
by mail, such requirement shall be satisfied by the deposit of such notice in the United States
mail, postage prepaid, by first class mail.
Section 11.05. Destruction of Bonds. Whenever in this Indenture provision is made for
the cancellation by the Trustee and the delivery to the Community Facilities District of any
Bonds, the Trustee shall, in lieu of such cancellation and delivery, destroy such Bonds.
Section 11.06. Severability of Invalid Provisions. If any one or more of the provisions
contained in this Indenture or in the Bonds shall for any reason be held to be invalid, illegal or
unenforceable in any respect, then such provision or provisions shall be deemed severable from
the remaining provisions contained in this Indenture and such invalidity, illegality or
unenforceability shall not affect any other provision of this Indenture, and this Indenture shall be
construed as if such invalid or illegal or unenforceable provision had never been contained
OHS West:260069578.3 50
herein. The Community Facilities District hereby declares that it would have entered into this
Indenture and each and every other Section, subsection, paragraph, sentence, clause or phrase
hereof and authorized the issuance of the Bonds pursuant thereto irrespective of the fact that any
one or more Sections, subsections, paragraphs, sentences, clauses or phrases of this Indenture
may be held illegal, invalid or unenforceable.
Section 11.07. Notices. Any written notice, statement, demand, consent, approval,
authorization, offer, designation, request or other communication to be given hereunder shall be
given to the party entitled thereto at its address set forth below, or at such other address as such
party may provide to the other parties in writing from time to time, namely:
If to the Community Facilities District:
City of Tustin
Community Facilities District
No. 06-1 (Tustin Legacy/Columbus Villages)
c/o City of Tustin
300 Centennial Way
Tustin, California 92680
Attention: Finance Director
If to the Trustee:
Union Bank of California, N.A.
120 South San Pedro Street, 4th Floor
Los Angeles, California 90012
Attention:
Each such notice, statement, demand, consent, approval, authorization, offer, designation,
request or other communication hereunder shall be deemed delivered to the party to whom it is
addressed (a) if personally served or delivered, upon delivery, (b) if given by electronic
communication, whether by telex, telegram or telecopier, upon the sender's receipt of an
appropriate answerback or other written acknowledgment, (c) if given by registered or certified
mail, return receipt requested, deposited with the United States mail postage prepaid, 72 hours
after such notice is deposited with the United States mail, (d) if given by overnight courier, with
courier charges prepaid, 24 hours after delivery to said overnight courier, or (e) if given by any
other means, upon delivery at the address specified in this Section.
Section 11.08. Evidence of Rights of Bond Owners. Any request, consent or other
instrument required or permitted by this Indenture to be signed and executed by Bond Owners
may be in any number of concurrent instruments of substantially similar tenor and shall be
signed or executed by such Bond Owners in Person or by an agent or agents duly appointed in
writing. Proof of the execution of any such request, consent or other instrument or of a writing
appointing any such agent, or of the holding by any Person of Bonds transferable by delivery,
shall be sufficient for any purpose of this Indenture and shall be conclusive in favor of the
Trustee and the Community Facilities District if made in the manner provided in this Section.
OHS West:260069578.3 S 1
The fact and date of the execution by any Person of any such request, consent or other
instrument or writing may be proved by the certificate of any notary public or other officer of any
jurisdiction, authorized by the laws thereof to take acknowledgments of deeds, certifying that the
Person signing such request, consent or other instrument 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.
The ownership of Bonds shall be proved by the Registration Books.
Any request, consent, or other instrument or writing of the Owner of any Bond shall bind
every future Owner of the same Bond and the Owner of every Bond issued in exchange therefor or
in lieu thereof, in respect of anything done or suffered to be done by the Trustee or the Community
Facilities District in accordance therewith or reliance thereon.
Section 11.09. Disqualified Bonds. In determining whether the Owners of the requisite
aggregate principal amount of Bonds have concurred in any demand, request, direction, consent
or waiver under this Indenture, Bonds which are known by the Trustee to be owned or held by or
for the account of the Community Facilities District, or by any other obligor on the Bonds, or by
any Person directly or indirectly controlling or controlled by, or under direct or indirect common
control with, the Community Facilities District or any other obligor on the Bonds, shall be
disregarded and deemed not to be Outstanding for the purpose of any such determination. Bonds
so owned which have been pledged in good faith may be regarded as Outstanding for the
purposes of this Section if the pledgee shall establish to the satisfaction of the Trustee the
pledgee's right to vote such Bonds and that the pledgee is not a Person directly or indirectly
controlling or controlled by, or under direct or indirect common control with, the Community
Facilities District or any other obligor on the Bonds. In case of a dispute as to such right, any
decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee.
Section 11.10. Money Held for Particular Bonds. The money held by the Trustee for
the payment of the interest, principal or premium due on any date with respect to particular
Bonds (or portions of Bonds in the case of Bonds redeemed in part only) shall, on and after such
date and pending such payment, be set aside on its books and held in trust by it for the Owners of
the Bonds entitled thereto, subject, however, to the provisions of Section 10.03 but without any
liability for interest thereon.
Section 11.11. Funds and Accounts. Any fund or account required by this Indenture to
be established and maintained by the Trustee may be established and maintained in the
accounting records of the Trustee, either as a fund or an account, and may, for the purposes of
such records, any audits thereof and any reports or statements with respect thereto, be treated
either as a fund or as an account; but all such records with respect to all such funds and accounts
shall at all times be maintained in accordance with prudent corporate trust industry standards to
the extent practicable, and with due regard for the requirements of Section 6.07 and for the
protection of the security of the Bonds and the rights of every Owner thereof. The Trustee may
establish any such additional funds or accounts as it deems necessary to perform its obligations
hereunder.
OHS West:260069578.3 52
Section 11.12. Payment on Non-Business Days. In the event any payment is required to
be made hereunder on a day which is not a Business Day, such payment shall be made on the
next succeeding Business Day with the same effect as if made on such non-Business Day.
Section 11.13. Waiver of Personal Liability. No member, officer, agent or employee of
the Community Facilities District or the City shall be individually or personally liable for the
payment of the principal of or premium or interest on the Bonds or be subject to any personal
liability or accountability by reason of the issuance thereof; but nothing herein contained shall
relieve any such officer, agent or employee from the performance of any official duty provided
by law or by this Indenture.
Section 11.14. Interpretation. (a) Unless the context otherwise indicates, words
expressed in the singular shall include the plural and vice versa and the use of the neuter,
masculine, or feminine gender is for convenience only and shall be deemed to include the neuter,
masculine or feminine gender, as appropriate.
(b) Headings of articles and sections herein and the table of contents hereof are solely
for convenience of reference, do not constitute a part hereof and shall not affect the meaning,
construction or effect hereof.
(c) All references herein to "Articles," "Sections" and other subdivisions are to the
corresponding Articles, Sections or subdivisions of this Indenture; the words "herein," "hereof,"
"hereby," "hereunder" and other words of similar import refer to this Indenture as a whole and not
to any particular Article, Section or subdivision hereof.
Section 11.15. Conflict with Act. In the event of any conflict between any provision of
this Indenture and any provision of the Act, the provision of the Act shall prevail over the
provision of this Indenture.
Section 11.16. Conclusive Evidence of Regularity. Bonds issued pursuant to this
Indenture shall constitute evidence of the regularity of all proceedings under the Act relative to
their issuance and the levy of the Special Taxes.
Section 11.17. Execution in Several Counterparts. This Indenture may be executed in
any number of counterparts and each of such counterparts shall for all purposes be deemed to be
an original, and all such counterparts shall together constitute but one and the same instrument.
Section 11.18. Governing Laws. This Indenture shall be governed by and construed in
accordance with the laws of the State of California.
OHS West:260069578.3 53
IN WITNESS WHEREOF, the Community Facilities District has caused this Indenture to
be signed in its name by its representative thereunto duly authorized, and the Trustee, in token of its
acceptance of the trusts created hereunder, has caused this Indenture to be signed in its corporate
name by its officer thereunto duly authorized, all as of the day and year first above written.
CITY OF TUSTIN COMMUNITY
FACILITIES DISTRICT NO. 06-1
(TUSTIN LEGACY/COLUMBUS
VILLAGES)
By:
Ronald A. Nault, Finance Director
of the City of Tustin
UNION BANK OF CALIFORNIA, N.A.,
AS TRUSTEE
By:
Authorized Officer
OHS West:260069578.3 54
EXHIBIT A
FORM OF SERIES 2007 BOND
No.
CITY OF TUSTIN
COMMUNITY FACILITIES DISTRICT NO.06-1
(TUSTIN LEGACY/COLUMBUS VILLAGES)
SPECIAL TAX BOND, SERIES 2007 A
INTEREST RATE MATURITY DATE DATED DATE CUSIP
REGISTERED OWNER:
PRINCIPAL AMOUNT:
The City of Tustin Community Facilities District No. 06-1 (Tustin Legacy/Columbus
Villages) (the "Community Facilities District"), for value received, hereby promises to pay, solely
from the sources hereinafter described, to the Registered Owner identified above or registered
assigns (the "Registered Owner"), on the Maturity Date identified above or on any earlier
redemption date, the Principal Amount identified above in lawful money of the United States of
America; and to pay interest thereon at the Rate of Interest identified above in like lawful money
from the date hereof payable semiannually on March 1 and September 1 in each year, commencing
March 1, 2008 (the "Interest Payment Dates"), until payment of such Principal Amount in full. This
Bond shall bear interest from the Interest Payment Date next preceding the date of authentication of
this Bond (unless this Bond is authenticated on or before an Interest Payment Date and after the
fifteenth calendar day of the month preceding such Interest Payment Date, whether or not such day
is a business day, in which event it shall bear interest from such Interest Payment Date, or unless
this Bond is authenticated on or prior to February 15, 2008, in which event it shall bear interest from
the Dated Date identified above; 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 hereon has previously been paid or duly provided for). The Principal
Amount hereof is payable upon surrender hereof upon maturity or earlier redemption at the Office
of the Trustee (as hereinafter defined). Interest hereon is payable by check of Union Bank of
California, N.A., as Trustee (the "Trustee"), mailed by first class mail on each Interest Payment
Date to the Registered Owner hereof at the address of the Registered Owner as it appears on the
Registration Books of the Trustee as of the close of business on the fifteenth calendar day of the
month preceding such Interest Payment Date. "Office of the Trustee" means the principal corporate
OHS West:260069578.3 A-I
trust office of the Trustee in Los Angeles, California, or such other office as may be specified to the
Community Facilities District by the Trustee in writing.
This Bond is one of a series of a duly authorized issue of bonds approved by the qualified
electors of the Community Facilities District, pursuant to the Mello-Roos Community Facilities Act
of 1982, constituting Sections 53311 et seq. of the California Government Code (the "Act"), and
issued for the purpose of financing certain public facilities, and is one of the series of bonds
designated "City of Tustin Community Facilities District No. 06-1 (Tustin Legacy/Columbus
Villages) Special Tax Bonds, Series 2007 A" (the "Series 2007 Bonds") in the aggregate principal
amount of $ The Series 2007 Bonds are issued pursuant to the Indenture, dated as of
1, 2007 (the "Indenture"), by and between the Community Facilities District and the
Trustee, and this reference incorporates the Indenture herein, and by acceptance hereof the owner of
this Bond assents to said terms and conditions. Pursuant to and as more particularly provided in the
Indenture, additional bonds ("Additional Bonds") may be issued by the Community Facilities
District secured by a lien on a parity with the lien securing the Series 2007 Bonds. The Series 2007
Bonds and any Additional Bonds are collectively referred to as the "Bonds." The Indenture is
entered into, and this Bond is issued under, the Act and the laws of the State of California.
Capitalized undefined terms used herein shall have the meanings ascribed thereto in the Indenture.
Pursuant to the Act and the Indenture, the principal of and interest on the Bonds are payable
solely from Net Special Tax Revenues and the other assets pledged therefor under the Indenture.
Net Special Tax Revenues generally consist of the annual special tax authorized under the Act to be
collected within the Community Facilities District, after the payment therefrom of certain
administrative expenses. Subject only to the provisions of the Indenture permitting the application
thereof for the purposes and on the terms and conditions set forth therein, all of the Net Special Tax
Revenues and any other amounts (including proceeds of the sale of the Bonds) held in the Bond
Fund and the Reserve Fund established under the Indenture are pledged to secure the payment of the
principal of, premium, if any, and interest on the Bonds in accordance with their terms, the
provisions of the Indenture and the Act. Said pledge constitutes a first lien on such assets.
The Series 2007 Bonds shall be subject to optional redemption, in whole or in part, on any
Interest Payment Date on or after September 1, 20~ from any source of available funds, at the
following respective redemption prices (expressed as percentages of the principal amount of the
Series 2007 Bonds to be redeemed), plus accrued interest thereon to the date of redemption:
Redemption Dates Redemption Price
September 1, 20 and March 1, 20
September 1, 20 and March 1, 20
September 1, 20 and thereafter
The Series 2007 Bonds shall be subject to mandatory redemption, in whole or in part, on
any Interest Payment Date on or after September 1, 2007, from and to the extent of any prepayment
of Special Taxes, at the following respective redemption prices (expressed as percentages of the
principal amount of the Series 2007 Bonds to be redeemed), plus accrued interest thereon to the date
of redemption:
OHS West:260069578.3 A-2
Redemption Dates Redemption Price
March 1, 2008 through March 1, 20
September 1, 20 and March 1, 20
September 1, 20 and March 1, 20
September 1, 20 and thereafter
The Series 2007 Bonds maturing September 1, 20 shall be subject to mandatory sinking
fund redemption, in part, on September 1 in each year, commencing September 1, 20 at a
redemption price equal to the principal amount of such Series 2007 Bonds to be redeemed, without
premium, plus accrued interest thereon to the date of redemption, in the aggregate respective
principal amounts specified in the Indenture.
The Series 2007 Bonds maturing September 1, 2037 shall be subject to mandatory sinking
fund redemption, in part, on September 1 in each year, commencing September 1, 20 at a
redemption price equal to the principal amount of such Series 2007 Bonds to be redeemed, without
premium, plus accrued interest thereon to the date of redemption, in the aggregate respective
principal amounts specified in the Indenture.
The Trustee on behalf and at the expense of the Community Facilities District shall mail (by
first class mail) notice of any redemption to the respective owners of any Series 2007 Bonds
designated for redemption, at their respective addresses appearing on the Registration Books
maintained by the Trustee, at least 30 but not more than 60 days prior to the redemption date;
provided, however, that neither failure to receive any such notice so mailed nor any defect therein
shall affect the validity of the proceedings for the redemption of such Series 2007 Bonds or the
cessation of the accrual of interest thereon. The redemption price of the Series 2007 Bonds to be
redeemed shall be paid only upon presentation and surrender thereof at the Office of the Trustee.
From and after the date fixed for redemption of any Series 2007 Bonds, interest on such Series 2007
Bonds will cease to accrue.
The Series 2007 Bonds are issuable as fully registered Bonds without coupons in
denominations of $5,000 or any integral multiple thereof. Subject to the limitations and upon
payment of the charges, if any, provided in the Indenture, fully registered Series 2007 Bonds maybe
exchanged at the Office of the Trustee for a like aggregate principal amount and maturity of fully
registered Series 2007 Bonds of other authorized denominations.
This Bond is transferable by the Registered Owner hereof, in person or by his attorney duly
authorized in writing, at the Office of the Trustee, but only in the manner, subject to the limitations
and upon payment of the charges provided in the Indenture, and upon surrender and cancellation of
this Bond. Upon such transfer a new fully registered Series 2007 Bond or Series 2007 Bonds, of
authorized denomination or denominations, for the same aggregate principal amount and of the
same maturity will be issued to the transferee in exchange herefor. The Community Facilities
District and the Trustee may treat the Registered Owner hereof as the absolute owner hereof for all
purposes, and the Community Facilities District and the Trustee shall not be affected by any notice
to the contrary.
OHS West:260069578.3 A-3
The Indenture and the rights and obligations of the Community Facilities District, the
owners of the Bonds and the Trustee may be modified or amended from time to time and at any
time in the manner, to the extent, and upon the terms provided in the Indenture; provided that no
such modification or amendment shall (a) extend the fixed maturity of any Bonds, or reduce the
principal thereof or the rate of interest borne thereby, or extend the time of payment, without the
consent of the owner of such Bond, (b) reduce the percentage of Bonds the consent of the owners of
which is required to effect any such amendment or modification, without the consent of the owners
of all outstanding Bonds, or (c) permit the creation of any lien on the Net Special Tax Revenues and
other assets pledged under the Indenture prior to or on a parity with the lien created by the
Indenture, or deprive the Bonds owners of the lien created under the Indenture on such Net Special
Tax Revenues and such other assets (except as expressly provided in the Indenture), without the
consent of the owners of all outstanding Bonds.
The Indenture contains provisions permitting the Community Facilities District to make
provision for the payment of interest on, and the principal and premium, if any, of any of the Bond
so that such Bonds shall no longer be deemed to be outstanding under the terms of the Indenture.
All obligations of the Community Facilities District under the Indenture shall be special
obligations of the Community Facilities District, payable solely from Special Tax Revenues and the
other assets pledged therefor thereunder; provided, however, that all obligations of the Community
Facilities District under the Bonds shall be special obligations of the Community Facilities District,
payable solely from Net Special Tax Revenues and the other assets pledged therefor thereunder.
Neither the faith and credit nor the taxing power of the Community Facilities District (except to the
limited extent set forth herein and in the Indenture), the City of Tustin or the State of California, or
any political subdivision thereof, is pledged to the payment of the Bonds.
Unless this Bond is presented by an authorized representative of The Depository Trust
Company to the Trustee for registration of transfer, exchange or payment, and any Bond issued is
registered in the name of Cede & Co. or such other name as requested by an authorized
representative of The Depository Trust Company and any payment is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest
herein.
OHS West:260069578.3 A-4
IN WITNESS WHEREOF, the Community Facilities District has caused this Bond to be
signed in its name and on its behalf by the facsimile signatures of the Mayor of the City of Tustin
and the City Clerk of the City of Tustin, all as of the Dated Date identified above.
CITY OF TUSTIN COMMUNITY
FACILITIES DISTRICT NO. 06-1
(TUSTIN LEGACY/COLUMBUS
VILLAGES)
By:
Mayor of the City of Tustin
Attest:
By:
City Clerk of the City of Tustin
OHS West:260069578.3 A-5
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Series 2007 Bonds described in the within-mentioned Indenture and
registered on the Registration Books.
Date: , 2007
UNION BANK OF CALIFORNIA, N.A.,
AS TRUSTEE
By:
Authorized Signatory
OHS West:260069578.3 A-6
ASSIGNMENT
For value received the undersigned hereby sells, assigns and transfers unto
whose address and social security or other tax
identifying number is the within-mentioned Bond and hereby irrevocably
constitute(s) and appoint(s) attorney, to transfer the same on
the registration books of the Trustee with full power of substitution in the premises.
Dated:
Signature Guaranteed:
Note: Signature(s) must be guaranteed by an
eligible guarantor.
Note: The signature(s) 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.
OHS West:260069578.3 A-7
EXHIBIT B
PROJECT
Acquisition Project
Severyns Road from Valencia Avenue to end of public street segment: Roadway
improvements include curbs, gutter, sidewalks on both sides of street, pavement, signing and
striping, and street lights.
Traffic Signal at Valencia Avenue/West Connector: Improvements include furnishing and
installing the following components: Traffic signal controller, battery backup unit, signal poles
and mast arms, vehicle heads, pedestrian heads, signal interconnect, traffic signal loop
detectors, and appurtenances.
Construction Project
The Project is expected to include the acquisition and construction of all or a portion of street
improvements, including grading, paving, curbs and gutters, sidewalks, street signalization and signage,
street lights and parkway and landscaping related thereto, storm drains, utilities, public parks and
recreation facilities, public library facilities, fire protection facilities and equipment and land, rights-of-
way and easements necessary for any of such facilities.
OHS West:260069578.3 B-l
CONTINUING DISCLOSURE AGREEMENT
by and among
CITY OF TUSTIN
COMMUNITY FACILITIES DISTRICT NO. 06-1
(TUSTIN LEGACY/COLUMBUS VILLAGES)
and
UNION BANK OF CALIFORNIA, N.A.,
AS TRUSTEE
and
UNION BANK OF CALIFORNIA, N.A.,
AS DISSEMINATION AGENT
Dated as of 1, 2007
City of Tustin
Community Facilities District No. 06-1
(Tustin Legacy/Columbus Villages)
Special Tax Bonds, Series 2007 A
OHS West:260069575.2
CONTINUING DISCLOSURE AGREEMENT
THIS CONTINUING DISCLOSURE AGREEMENT (this "Disclosure Agreement"), dated
as of 1, 2007, is by and among CITY OF TUSTIN COMMUNITY FACILITIES
DISTRICT NO. 06-1 (TUSTIN LEGACY/COLUMBUS VILLAGES), a community facilities district
organized and existing under and by virtue of the laws of the State of California (the "Community
Facilities District"), and UNION BANK OF CALIFORNIA, N.A., a national banking association
organized and existing under and by virtue of the laws of the United States of America (the "Bank"), in
its capacity as trustee (the "Trustee") and in its capacity as Dissemination Agent (the "Dissemination
Agent").
WITNESSETH:
WHEREAS, pursuant to the Indenture, dated as of 1, 2007 (the "Indenture"), by
and between the Community Facilities District and the Trustee, the Community Facilities District has
issued the City of Tustin Community Facilities District No. 06-1 (Tustin Legacy/Columbus Villages)
Special Tax Bonds, Series 2007 A (the "Series 2007 Bonds") in the aggregate principal amount of
$ ;and
WHEREAS, this Disclosure Agreement is being executed and delivered by the Community
Facilities District and the Bank for the benefit of the holders and beneficial owners of the Series 2007
Bonds and in order to assist the underwriters of the Series 2007 Bonds in complying with Securities
and Exchange Commission Rule 15c2-12(b)(5);
NOW, THEREFORE, for and in consideration of the mutual premises and covenants herein
contained, the parties hereto agree as follows:
Section 1. Definitions. Capitalized undefined terms used herein shall have the meanings
ascribed thereto in the Indenture. In addition, the following capitalized terms shall have the following
meanings:
"Annual Report" means any Annual Report provided by the Community Facilities District
pursuant to, and as described in, Sections 2 and 3 hereof.
"Annual Report Date" means the date in each year that is eight months after the end of the
Community Facilities District's fiscal year, which date, as of the date of this Disclosure Agreement, is
March 1.
"Disclosure Representative" means the Finance Director of the City of Tustin, or his or her
designee, or such other person as the Community Facilities District shall designate in writing to the
Trustee from time to time.
"Dissemination Agent" means the Bank, acting in its capacity as Dissemination Agent
hereunder, or any successor Dissemination Agent designated in writing by the Community Facilities
District and which has filed with the Trustee a written acceptance of such designation.
OHS West:260069575.2 l
"Listed Events" means any of the events listed in Section 4(a) hereof.
"National Repository" means any Nationally Recognized Municipal Securities Information
Repository for purposes of the Rule. The Nationally Recognized Municipal Securities Information
Repository for purposes of the Rule are identified in the Securities and Exchange Commission website
located at http://www.sec.gov/info/municipal/nrmsir.htm.
"Official Statement" means the Official Statement, dated , 2007, relating to the
Series 2007 Bonds.
"Participating Underwriter" means any of the original underwriters of the Series 2007 Bonds
required to comply with the Rule in connection with the offering of the Series 2007 Bonds.
"Repository" means each National Repository and each State Repository.
"Rule" means Rule 15c2-12(b)(5) adopted by the Securities and Exchange Commission under
the Securities Exchange Act of 1934, as the same maybe amended from time to time.
"State Repository" means any public or private repository or entity designated by the State of
California as a state repository for the purpose of the Rule and recognized as such by the Securities
and Exchange Commission. As of the date of this Disclosure Agreement, there is no State Repository.
Section 2. Provision of Annual Reports. (a) The Community Facilities District shall, or,
upon furnishing the Annual Report to the Dissemination Agent, shall cause the Dissemination Agent
to, provide to each Repository an Annual Report which is consistent with the requirements of
Section 3 hereof, not later than the Annual Report Date, commencing with the report for the 2006-07
fiscal year. 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 3 hereof;
provided, however, that the audited financial statements of the Community Facilities District, if any,
may be submitted separately from the balance of the Annual Report, and later than the date required
above for the filing of the Annual Report if not available by that date. If the Community Facilities
District's fiscal year changes, it shall instruct the Dissemination Agent to give notice of such change in
the same manner as for a Listed Event under Section 4(f) hereof.
(b) Not later than 15 business days prior to the date specified in subsection (a) for
providing the Annual Report to Repositories, the Community Facilities District shall provide the
Annual Report (in a form suitable for reporting to the Repositories) to the Dissemination Agent and
the Trustee (if the Trustee is not the Dissemination Agent). If by such date, the Trustee has not
received a copy of the Annual Report, the Trustee shall contact the Disclosure Representative and the
Dissemination Agent to inquire if the Community Facilities District is in compliance with the first
sentence of this subsection (b).
(c) If the Trustee is unable to verify that an Annual Report has been provided to the
Repositories by the date required in subsection (a), the Trustee shall send a notice to the Municipal
Securities Rulemaking Board and the appropriate State Repository, if any, in substantially the form
attached as Exhibit A.
OHS West:260069575.2 2
(d) The Dissemination Agent shall:
(i) determine each year prior to the date for providing the Annual Report the name
and address of each National Repository and each State Repository, if any;
(ii) provide any Annual Report received by it to each Repository, as provided
herein; and
(iii) file a report with the Community Facilities District and (if the Dissemination
Agent is not the Trustee) the Trustee certifying that the Annual Report has been provided
pursuant to this Disclosure Agreement, stating the date it was provided and listing all the
Repositories to which it was provided.
Section 3. Content of Annual Reports. The Community Facilities District's Annual Report
shall contain or incorporate by reference the following:
(a) The Community Facilities District's audited financial statements, if any, 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 Community
Facilities District's audited financial statements, if any, are not available by the time the Annual Report
is required to be filed pursuant to Section 2(a) hereof, the Annual Report shall contain unaudited
financial statements in a format similar to that used for the Community Facilities District's audited
financial statements, and the audited financial statements, if any, shall be filed in the same manner as
the Annual Report when they become available.
(b) The following information:
(i) The principal amount of Series 2007 Bonds Outstanding as of the September 30
next preceding the Annual Report Date.
(ii) The principal amount of Bonds Outstanding as of the September 30 next
preceding the Annual Report Date.
(iii) The balance in the Reserve Fund, and a statement of the Reserve Requirement,
as of the September 30 next preceding the Annual Report Date.
(iv) The total assessed value of all parcels within the Community Facilities District
on which the Special Taxes are levied, as shown on the assessment roll of the Orange County
Assessor last equalized prior to the September 30 next preceding the Annual Report Date, and
a statement of assessed value-to-lien ratios therefor, either by individual parcel or by categories
(e.g. "below 3:1", " 3:1 to 4:1" etc.).
(v) The Special Tax delinquency rate for all parcels within the Community Facilities
District on which the Special Taxes are levied, as shown on the assessment roll of the Orange
County Assessor last equalized prior to the September 30 next preceding the Annual Report
Date, the number of parcels within the Community Facilities District on which the Special
Taxes are levied and which are delinquent in payment of Special Taxes, as shown on the
OHS West:260069575.2 3
as shown on the assessment roll of the Orange County Assessor last equalized prior to the
September 30 next preceding the Annual Report Date, the amount of each delinquency, the
length of time delinquent and the date on which foreclosure was commenced, or similar
information pertaining to delinquencies deemed appropriate by the Community Facilities
District; provided, however, that parcels with aggregate delinquencies of $2,000 or less
(excluding penalties and interest) may be grouped together and such information may be
provided by category.
(vi) The status of foreclosure proceedings for any parcels within the Community
Facilities District on which the Special Taxes are levied and a summary of the results of any
foreclosure sales as of the September 30 next preceding the Annual Report Date.
(vii) The identity of any property owner representing more than 5% of the annual
Special Tax levy who is delinquent in payment of such Special Taxes, as shown on the
assessment roll of the Orange County Assessor last equalized prior to the September 30 next
preceding the Annual Report Date.
(viii) Aland ownership summary listing property owners responsible for more than
5% of the annual Special Tax levy, as shown on the assessment roll of the Orange County
Assessor last equalized prior to the September next preceding the Annual Report Date.
(c) In addition to any of the information expressly required to be provided under
paragraphs (a) and (b), above, the Community Facilities District shall provide such further 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.
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 Community Facilities District or related public
entities, which have been submitted to each of the Repositories or the Securities and Exchange
Commission. If the document included by reference is a final official statement, it must be available
from the Municipal Securities Rulemaking Board. The Community Facilities District shall clearly
identify each such other document so included by reference.
Section 4. Reporting of Significant Events. (a) Pursuant to the provisions of this Section,
the Community Facilities District shall promptly give, or cause to be given, notice of the occurrence of
any of the following events with respect to the Series 2007 Bonds, if material:
(i) Principal and interest payment delinquencies.
(ii) Non-payment related defaults.
(iii) Unscheduled draws on debt service reserves reflecting financial difficulties.
(iv) Unscheduled draws on credit enhancements reflecting financial difficulties.
OHS West:260069575.2 4
(v) Substitution of credit or liquidity providers, or their failure to perform.
(vi) Adverse tax opinions or events affecting the tax-exempt status of the security.
(vii) Modifications to rights of security holders.
(viii) Contingent or unscheduled bond calls.
(ix) Defeasances.
(x) Release, substitution, or sale of property securing repayment of the securities.
(~) Rating changes.
(b) The Trustee shall, within five business days of obtaining actual knowledge of the
occurrence of any of the Listed Events, contact the Disclosure Representative, inform such person of
the event, and request that the Community Facilities District promptly notify the Dissemination Agent
in writing whether or not to report the event pursuant to subsection (f). The Trustee shall have no
responsibility for determining the materiality of any of the Listed Events.
(c) Whenever the Community Facilities District obtains knowledge of the occurrence of a
Listed Event, whether because of a notice from the Trustee pursuant to subsection (b) or otherwise,
the Community Facilities District shall as soon as possible determine if such event would be material
under applicable Federal securities law.
(d) If the Community Facilities District determines that knowledge of the occurrence of a
Listed Event would be material under applicable Federal securities law, and there is no Dissemination
Agent, the Community Facilities District shall file a notice of such occurrence with the Municipal
Securities Rulemaking Board and each State Repository. Notwithstanding the foregoing, notice of
Listed Events described in subsections (a)(viii) and (ix) need not be given under this subsection any
earlier than the notice (if any) of the underlying event is given to holders of affected Series 2007 Bonds
pursuant to the Indenture. If the Community Facilities District determines that knowledge of the
occurrence of a Listed Event would be material under applicable Federal securities law, and there is a
Dissemination Agent, the Community Facilities District shall promptly notify the Dissemination Agent
in writing. Such notice shall instruct the Dissemination Agent to report the occurrence pursuant to
subsection (f). The Community Facilities District shall provide the Dissemination Agent with a form of
notice of such event in a format suitable for reporting to the Municipal Securities Rulemaking Board
and each State Repository, if any.
(e) If in response to a request under subsection (b), the Community Facilities District
determines that the Listed Event would not be material under applicable Federal securities law, the
Community Facilities District shall so notify the Dissemination Agent in writing and instruct the
Dissemination Agent not to report the occurrence pursuant to subsection (f).
OHS West:260069575.2 5
(f) If the Dissemination Agent has been instructed by the Community Facilities District to
report the occurrence of a Listed Event, the Dissemination Agent shall file a notice of such occurrence
with the Municipal Securities Rulemaking Board and each State Repository. Notwithstanding the
foregoing, notice of Listed Events described in subsections (a)(viii) and (ix) need not be given under
this subsection any earlier than the notice (if any) of the underlying event is given to holders of affected
Series 2007 Bonds pursuant to the Indenture.
Section 5. Electronic Filing. Submission of Annual Reports and notices of Listed Events to
DisclosureUSA.org or another "Central Post Office" designated and accepted by the Securities and
Exchange Commission shall constitute compliance with the requirement of filing such reports and
notices with each Repository hereunder, and the Community Facilities District may satisfy its
obligations hereunder to file any notice, document or information with a Repository by filing the same
with any dissemination agent or conduit, including DisclosureUSA.org or another "Central Post
Office" or similar entity, assuming or charged with responsibility for accepting notices, documents or
information for transmission to such Repository, to the extent permitted by the Securities and
Exchange Commission or Securities and Exchange Commission staff or required by the Securities and
Exchange Commission. For this purpose, permission shall be deemed to have been granted by the
Securities and Exchange Commission staff if and to the extent the agent or conduit has received an
interpretive letter, which has not been revoked, from the Securities and Exchange Commission staff to
the effect that using the agent or conduit to transmit information to the Repository will be treated for
purposes of the Rule as if such information were transmitted directly to the Repository.
Section 6. Termination of Reporting Obligation. The Community Facilities District's
obligations under this Disclosure Agreement shall terminate upon the legal defeasance, prior
redemption or payment in full of all of the Series 2007 Bonds. If such termination occurs prior to the
final maturity of the Series 2007 Bonds, the Community Facilities District shall give notice of such
termination in the same manner as for a Listed Event under Section 4(f) hereof.
Section 7. Dissemination Agent. The Community Facilities District 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. The Dissemination Agent may resign by providing 30 days' written
notice to the Community Facilities District and the Trustee. The Dissemination Agent shall have no
duty to prepare the Annual Report. The Dissemination Agent shall be paid compensation by the
Community Facilities District for its services provided hereunder in accordance with its schedule of
fees as amended from time to time, as agreed to between the Dissemination Agent and the Community
Facilities District, and all reasonable expenses, legal fees and advances made or incurred by the
Dissemination Agent in the performance of its duties hereunder.
Section 8. Amendment; Waiver. Notwithstanding any other provision of this Disclosure
Agreement, the Community Facilities District, the Trustee and the Dissemination Agent may amend
this Disclosure Agreement (and the Trustee and the Dissemination Agent shall agree to any
amendment so requested by the Community Facilities District, so long as such amendment does not
adversely affect the rights or obligations of the Trustee or the Dissemination Agent), and any provision
OHS West:260069575.2 6
Agent), 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 Sections 2(a), 3 or 4(a) hereof, 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 Series 2007 Bonds, or type of business conducted;
(b) the undertakings herein, as proposed to be amended or waived, would, in the
opinion of nationally recognized bond counsel, have complied with the requirements of the
Rule at the time of the primary offering of the Bonds, after taking into account any
amendments or interpretations of the Rule, as well as any change in circumstances; and
(c) the proposed amendment or waiver (i) is approved by holders of the Series 2007
Bonds in the manner provided in the Indenture for amendments to the Indenture with the
consent of holders, or (ii) does not, in the opinion of nationally recognized bond counsel,
materially impair the interests of holders.
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 financial information 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 the undertaking specifying the accounting principles to be followed
in preparing financial statements, the annual financial information 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 statements or
information, in order to provide information to investors to enable them to evaluate the ability of the
Community Facilities District to meet its obligations, including its obligation to pay debt service on the
Series 2007 Bonds. To the extent reasonably feasible, the comparison shall be quantitative. A notice
of the change in the accounting principles shall be sent to the Repositories in the same manner as for a
Listed Event under Section 4(f) hereof.
Section 9. Additional Information. Nothing in this Disclosure Agreement shall be deemed
to prevent the Community Facilities District 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 or notice of occurrence of a Listed Event, in
addition to that which is required by this Disclosure Agreement. If the Community Facilities District
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 Agreement, the Community Facilities
OHS West:260069575.2 7
Agreement, the Community Facilities District shall have no obligation under this Disclosure Agreement
to update such information or include it in any future Annual Report or notice of occurrence of a
Listed Event.
Section 10. Default. In the event of a failure of the Community Facilities District or the
Trustee to comply with any provision of this Disclosure Agreement, the Trustee may (and, at the
written direction of any Participating Underwriter or the holders of at least 25% aggregate principal
amount of Outstanding Series 2007 Bonds, shall, upon receipt of indemnification reasonably
satisfactory to the Trustee), or any holder or beneficial owner of the Series 2007 Bonds may, take such
actions as may be necessary and appropriate, including seeking mandate or specific performance by
court order, to cause the Community Facilities District or the Trustee, as the case may be, 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 Indenture, and the sole remedy under this Disclosure
Agreement in the event of any failure of the Community Facilities District or the Trustee to comply
with this Disclosure Agreement shall be an action to compel performance.
Section 11. Duties, Immunities and Liabilities of Trustee and Dissemination Agent.
Article VIII of the Indenture is hereby made applicable to this Disclosure Agreement as if this
Disclosure Agreement were (solely for this purpose) contained in the Indenture, and the Trustee and
the Dissemination Agent shall be entitled to the protections, limitations from liability and indemnities
afforded to the Trustee thereunder. The Dissemination Agent and the Trustee shall have only such
duties hereunder as are specifically set forth in this Disclosure Agreement. This Disclosure Agreement
does not apply to any other securities issued or to be issued by the Community Facilities District. The
Dissemination Agent shall have no responsibility for the preparation, review, form or content of any
Annual Report or any notice of a Listed Event. No provision of this Disclosure Agreement shall
require or be construed to require the Dissemination Agent to interpret or provide an opinion
concerning any information disclosed hereunder. The Dissemination Agent may conclusively rely on
the determination of the Community Facilities District as to the materiality of any event for purposes of
Section 4 hereof. Neither the Trustee nor the Dissemination Agent make any representation as to the
sufficiency of this Disclosure Agreement for purposes of the Rule. The Community Facilities District's
obligations under this Section shall survive the termination of this Disclosure Agreement.
Section 12. Beneficiaries. This Disclosure Agreement shall inure solely to the benefit of the
Community Facilities District, the Trustee, the Dissemination Agent, the Participating Underwriters
and holders and beneficial owners from time to time of the Series 2007 Bonds, and shall create no
rights in any other person or entity.
Section 13. 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.
OHS West:260069575.2 c~
IN WITNESS WHEREOF, the parties hereto have executed this Disclosure Agreement as of
the date first above written.
CITY OF TUSTIN COMMUNITY
FACILITIES DISTRICT NO. 06-1 (TUSTIN
LEGACY/COLUMBUS VILLAGES)
By:
Ronald A. Nault, Finance Director of the
City of Tustin
UNION BANK OF CALIFORNIA, N.A., AS
TRUSTEE
By:
Authorized Officer
UNION BANK OF CALIFORNIA, N.A., AS
DISSEMINATION AGENT
By:
Authorized Officer
OHS West:260069575.2 9
EXHIBIT A
NOTICE TO MUNICIPAL SECURITIES RULEMAKING BOARD OF FAILURE TO FILE
ANNUAL REPORT
Name of Issuer: City of Tustin Community Facilities District No. 06-1
(Tustin Legacy/Columbus Villages)
Name of Bond Issue: City of Tustin Community Facilities District No. 06-1 (Tustin
Legacy/Columbus Villages) Special Tax Bonds, Series 2007 A
Date of Issuance: , 2007
NOTICE IS HEREBY GIVEN that City of Tustin Community Facilities District No. 06-1
(Tustin Legacy/Columbus Villages) (the "Community Facilities District") has not provided an Annual
Report with respect to the above-named Bonds as required by the Continuing Disclosure Agreement,
dated as of 1, 2007, by and among the Community Facilities District and Union Bank of
California, N.A., in its capacity as Trustee and in its capacity as Dissemination Agent. [The
Community Facilities District anticipates that the Annual Report will be filed by , 20.]
Dated:
UNION BANK OF CALIFORNIA, N.A., as
Trustee, on behalf of the City of Tustin
Community Facilities District No. 06-1 (Tustin
Legacy/Columbus Villages)
cc: City of Tustin Community
Facilities District No. 06-1
(Tustin Legacy/Columbus Villages)
OHS West:260069575.2 A-1
ACQUISITION AND FUNDING AGREEMENT
by and among
CITY OF TUSTIN
COMMUNITY FACILITIES DISTRICT NO. 06-1
(TUSTIN LEGACY/COLUMBUS VILLAGES)
and
CITY OF TUSTIN
and
MOFFETT MEADOWS PARTNERS LLC
and
LENNAR HOMES OF CALIFORNIA, INC. (for limited purposes set forth
herein)
Dated as of 1, 2007
City of Tustin
Community Facilities District No. 06-1
(Tustin Legacy/Columbus Villages)
Special Tax Bonds
OHS West:260010699.5
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS ...................................................................................... ....... 2
Section 1.1 . Definitions ................................................................................. ....... 2
ARTICLE II ACQUISITION OF FACILITIES ......................................................... ....... 8
Section 2.1 . Acquisition of Facilities ............................................................. ....... 8
Section 2.2 . Payment of Purchase Price ......................................................... ....... 8
Section 2.3 . Payments of Credit Amount ....................................................... ....... 9
Section 2.4 . Dedication of Property and Easements to City ........................... ....... 9
Section 2.5 . Modifications to Segments and Acquisition Costs ...................... ....... 9
ARTICLE III CONSTRUCTION OF FACILITIES ..................................................... ..... 10
Section 3.1 . Preparation and Approval of Plans and Specifications ................ ..... 10
Section 3.2 . Duty of Developer to Construct ................................................. ..... 10
Section 3.3 . Public Works Requirements ....................................................... ..... 10
Section 3.4 . Bonding Requirements ............................................................... ..... 12
Section 3.5 . Inspection; Completion of Construction ..................................... ..... 12
Section 3.6 . Maintenance of Facilities; Warranties ........................................ ..... 12
Section 3.7 . Insurance Requirements ............................................................. ..... 12
Section 3.8 . Ownership of Facilities .............................................................. ..... 14
ARTICLE IV REPRESENTATIONS, WARRANTIES AND COVENANTS;
INDEMNIFICATION ........................................................................... ..... 14
Section 4.1 . Representations and Warranties of the Developer ...................... ..... 14
Section 4.2 . Covenants of the Developer ....................................................... ..... 16
Section 4.3 . Representations and Warranties of the Community Facilities
District and the City ................................................................... ..... 17
Section 4.4 . Covenants of the Community Facilities District and the City ..... ..... 17
Section 4.5 . (Reserved) ................................................................................. ..... 17
Section 4.6 . Indemnification and Related Provisions ..................................... ..... 17
ARTICLE V TERMINATION; DAMAGES .............................................................. ..... 21
Section 5.1 . Termination by Agreement ........................................................ ..... 21
Section 5.2 . Termination by City ................................................................... ..... 21
Section 5.3 . Termination by Developer ......................................................... ..... 23
Section 5.4 . Remedies in General; Damages Limited .................................... ..... 24
Section 5.5 . Force Majeure ............................................................................ ..... 24
OHS West:260010699.5 1
ARTICLE VI MISCELLANEOUS ............................................................ ....................... 26
Section 6.1. Developer as Independent Contractor ....................... ....................... 26
Section 6.2. Other Agreements .................................................... ....................... 26
Section 6.3. Binding on Successors and Assigns ......................... ....................... 26
Section 6.4. Amendments ............................................................ ....................... 26
Section 6.5. Waivers ................................................................... ....................... 26
Section 6.6. No Third Party Beneficiaries .................................... ....................... 26
Section 6.7. Notices .................................................................... ....................... 27
Section 6.8. Attorneys' Fees ........................................................ ....................... 27
Section 6.9. Governing Law ........................................................ ....................... 27
Section 6.10. Usage of Words ....................................................... ....................... 27
Section 6.11. Counterparts ............................................................ ....................... 28
EXHIBIT A -FACILITIES .............................................................................. ..................... A-1
EXHIBIT B -FORM OF PAYMENT REQUEST ............................................ ......................B-1
OHS West:260010699.5 11
ACQUISITION AND FUNDING AGREEMENT
THIS ACQUISITION AND FUNDING AGREEMENT (this "Acquisition
Agreement") is made and entered into as of 1, 2006, by and among the CITY OF
TUSTIN COMMUNITY FACILITIES DISTRICT NO. 06-1 (TUSTIN LEGACY/COLUMBUS
VILLAGES) (the "Community Facilities District"), the CITY OF TUSTIN (the "City"),
MOFFETT MEADOWS PARTNERS LLC (the "Developer") and (solely for the limited purpose
set forth in Section 4.6) LENNAR HOMES OF CALIFORNIA, INC.
WITNESSETH:
WHEREAS, the City Council of the City (the "City Council") has, pursuant to the
provisions of the Mello-Roos Community Facilities Act of 1982 (the "Act"), established the
Community Facilities District;
WHEREAS, pursuant to the Act, the proceedings of the City Council and an election
held within the Community Facilities District, the Community Facilities District is authorized to
issue special tax bonds (the "Bonds") secured by special taxes (the "Special Taxes") levied
within the Community Facilities District to finance certain public facilities;
WHEREAS, the Community Facilities District will, upon satisfaction of the conditions
and in accordance with the terms set forth in this Acquisition Agreement, purchase certain of
such public facilities described herein (the "Facilities"), the City will take title thereto and the
Developer will be paid from the proceeds of the Bonds and the Special Taxes for the costs of
acquisition, construction and improvement of the Facilities at the prices as determined as set
forth herein;
WHEREAS, pursuant to the Indenture, dated as of 1, 2006, by and between
the Community Facilities District and Union Bank of California, N.A., as trustee (the "Trustee"),
the Community Facilities District will establish or cause the Trustee to establish an acquisition
account into which a portion of the proceeds of the Bonds will be deposited, which amounts will
be used to finance the acquisition of the Facilities;
WHEREAS, Section 53313.5 of the Act provides that a community facilities district may
only finance the purchase of facilities whose construction has been completed, as determined by
the legislative body, before the resolution of formation to establish the community facilities
district is adopted pursuant to Section 53325.1 of the Act, except that a community facilities
district may finance the purchase of facilities completed after the adoption of the resolution of
formation if the facility was constructed as if it had been constructed under the direction and
supervision, or under the authority of, the local agency; and
WHEREAS, the Facilities are to be acquired by the City under this Acquisition
Agreement pursuant to the Act and, specifically, pursuant to the provisions of Sections 53313.5
thereof;
NOW, THEREFORE, for and in consideration of the mutual premises and covenants
contained herein, the parties hereto agree as follows:
OHS West:260010699.5
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. All terms defined in the Indenture shall have the same
meaning in this Acquisition Agreement, except as indicated. Unless the context otherwise
requires, the terms defined in this Article I shall have the meanings herein specified:
"Acceptable Title" means title to land, or an easement therein, delivered free and clear
of all liens, taxes, assessments, leases, easements and encumbrances, whether any such item is
recorded or unrecorded, except those non-monetary items which are reasonably determined by
the City not to interfere with the intended use of such land or easement and therefore are not
required to be cleared from title.
"Acceptance Date" means, with respect to a Segment, the date that the Purchase Price
thereof is payable to the Developer pursuant to the terms hereof and of the Indenture.
"Acquisition Account" means the account by that name established under the Indenture.
"Acquisition Agreement" means this Acquisition and Funding Agreement, dated as of
1, 2007, by and among the Community Facilities District, the City and the
Developer, as originally executed or as the same may be amended from time to time in
accordance with its terms.
"Acquisition Cost" means, with respect to a Segment, the amount specified as the
Acquisition Cost for such Segment in Exhibit A attached hereto, as the same may be modified by
one or more supplements thereto entered into in accordance with Section 2.5 hereof.
"Act" means the Mello-Roos Community Facilities Act of 1982, constituting Sections
53311 et s~ of the California Government Code.
"Actual Cost" means, with respect to a Segment, an amount equal to the sum of (a) the
Developer's actual, reasonable cost of constructing such Segment, including labor, material and
equipment costs, (b) the Developer's actual, reasonable cost of designing and preparing the Plans
for such Segment, including engineering services provided in connection with designing and
preparing such Plans, (c) the Developer's actual, reasonable cost of environmental evaluations
required specifically for such Segment, (d) the amount of any fees actually paid by the Developer
to governmental agencies in order to obtain permits, licenses or other necessary governmental
approvals and reviews for such Segment, (e) the Developer's actual, reasonable cost for
professional services directly related to the construction of such Segment, including engineering,
legal, accounting, inspection, construction staking, materials testing and similar professional
services, which costs shall not exceed 5% of the costs of constructing such Segment, as
determined pursuant to clause (a) of this definition, (~ the Developer's actual, reasonable cost
for construction management services, which costs shall not exceed 3% of the costs of
constructing such Segment, as determined pursuant to clause (a) of this definition, (g) the
Developer's actual, reasonable cost of payment, performance or maintenance bonds and
insurance (including any title insurance required hereby) for such Segment, and (h) the
Developer's actual, reasonable cost of any real property or interest therein acquired after
OHS West:260010699.5 2
2006 from a party other than the Developer, which real property or interest therein is
either necessary for the construction of such Segment (e.g., temporary construction easements,
haul roads, etc.) or is required to be conveyed with such Segment in order to convey Acceptable
Title thereto to the City or its designee, all as specified in a Payment Request that has been
reviewed and approved by the City Engineer; provided, however, that (x) no item of cost relating
to a Segment shall be included in more than one category of cost specified in clauses (a) through
(h) of this definition, and (y) each item of cost shall include only amounts actually paid by the
Developer to third parties and shall not include overhead or other internal expenses of the
Developer.
"Affiliate" of another Person means (a) each Person that, directly or indirectly, owns or
controls, whether beneficially or as trustee, guardian, or other fiduciary, 50% or more of any
class of equity securities of such other Person, and (b) each Person that controls, is controlled by
or is under common control with or by such Person or any Affiliate of such Person. 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, whether through the
ownership of voting securities, by contract or otherwise.
"Aggregate Overage Amount" means, as of any date, the sum of the Overage Amounts
for all Segments for which the Acceptance Date occurred on or before such date.
"Aggregate Savings Amount" means, as of any date, the sum of the Savings Amounts
for all Segments for which the Acceptance Date occurred on or before such date.
"Bond Year" has the meaning ascribed thereto in the Indenture
"Bonds" means the City of Tustin Community Facilities District No. 06-1 (Tustin
Legacy/Columbus Villages) Special Tax Bonds issued under the Indenture.
"City" means the City of Tustin, a general law city organized and existing under the laws
of the State, and its successors.
"City Engineer" means the City Engineer of the City, and any designee of said City
Engineer.
"Claim" means any and all claims, actions, causes of action, demands, orders or other
means of seeking or recovering losses, damages, liabilities, costs, expenses (including attorneys'
fees, fees of expert witnesses and consultants' and court and litigation costs and costs and
expenses attributable to compliance with judicial or regulatory orders), fines, penalties, liens,
taxes or any other type of compensation whatsoever, direct or indirect, known or unknown,
foreseen or unforeseen.
"Closing Date" has the meaning ascribed thereto in the Indenture.
"Community Facilities District" means the City of Tustin Community Facilities District
No. 06-1 (Tustin Legacy/Columbus Villages), a community facilities district organized and
existing under the laws of the State, and its successors.
OHS West:260010699.5 3
"Credit Amount" means, as of any date, the remainder of (a) the Aggregate Savings
Amount as of such date, minus (b) the Aggregate Overage Amount as of such date, minus (c) the
aggregate amount paid to the Developer prior to such date pursuant to Section 2.3 hereof;
provided, however, that in no event shall the Credit Amount exceed the remainder of (x) the
Aggregate Savings Amount as of such date, minus (y) the aggregate amount paid to the
Developer prior to such date pursuant to Section 2.3 hereof.
"Developer" means Moffett Meadows Partners LLC., a Delaware limited liability
company, and its successors and assigns, acting as the master developer of infrastructure within
the Community Facilities District. For the purpose of Section 4.6 (b) only, the term "Developer"
shall include Lennar Homes of California, Inc., but only to the extent Moffett Meadows Partners
LLC fails to meet its obligations under Section 4.6(b) after the City has made reasonably
diligent efforts to demand performance by Moffett Meadows Partners LLC.
"Developer Certificate" means the certificate executed by the Developer, dated the date
of the Purchase Agreement, the form of which is attached as Exhibit B to the Purchase
Agreement.
"Developer Representative" means the person or persons designated as such in a
certificate signed by the Developer and delivered to the Community Facilities District and the
Trustee, which certificate shall contain an original or specimen signature of each person so
designated.
"Environmental Agency" means the United States Environmental Protection Agency,
the California Environmental Protection Agency and each of their subentities, including any
Regional Water Quality Control Board, the State Water Resources Board, the Department of
Toxic Substances Control, the South Orange County Air Quality Management District and the
California Air Resources Board; the City, any fire department or health agency with jurisdiction;
and/or any other federal, state, regional or local governmental agency or entity that has or asserts
jurisdiction over Hazardous Substance Releases or the presence, use, storage, transfer,
manufacture, licensing, reporting, permitting, analysis, disposal or treatment of Hazardous
Materials in, on, under, about, or affecting construction of the Facilities pursuant to this
Acquisition Agreement.
"Environmental Laws" means any federal, state, regional or local laws, ordinances,
rules, regulations, requirements, orders, directives, guidelines, or permit conditions, in existence
as of the date of this Acquisition Agreement or as later enacted, promulgated, issued, modified or
adopted, regulating or relating to Hazardous Materials, and all applicable judicial, administrative
and regulatory decrees, judgments and orders and common law, including those relating to
industrial hygiene, public safety, human health or protection of the environment, or the reporting,
licensing, permitting, use, presence, transfer, treatment, analysis, generation, manufacture,
storage, discharge, Release, disposal, transportation, Investigation or Remediation of Hazardous
Materials. Environmental Laws shall include the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et sec .)
("CERCLA"); the Resource Conservation and Recovery Act, as amended, (42 U.S.C. Section
6901 et sec .) ("RCRA"); the federal Water Pollution Control Act, as amended, (33 U.S.C.
Section 1251 et sec.); the Toxic Substances Control Act, as amended, (15 U.S.C. Section 2601 et
OHS West:260010699.5 4
sec .); the Hazardous Substances Account Act (Chapter 6.8 of the California Health and Safety
Code Section 25300 et sec .); Chapter 6.5 commencing with Section 25100 (Hazardous Waste
Control) and Chapter 6.7 commencing with Section 25280 (Underground Storage of Hazardous
Substances) of the California Health and Safety Code; and the California Water Code, Section
13000 et sec .
"Facilities" means the facilities described in Exhibit A attached hereto.
"Federal Documents" means any conveyance agreement between the Developer and the
Department of the Navy, the LIFOC and each quitclaim deed from the Federal Government in
favor of the Developer or the City conveying title to one or more LIFOC Parcels as they may
affect the Property or the Facilities.
"Federal Government" means the United States of America, acting by and through the
Secretary of the Navy, or its designee.
"General Prevailing Wage Rates" means those rates as determined by the Director of
the Department of Industrial Relations of the State of California.
"Hazardous Material" means the following:
(a) A "Hazardous Substance", "Hazardous Material", "Hazardous Waste" or "Toxic
Substance" under the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, 42 U.S.C. subsection 9601, et sec ., the Hazardous Materials Transportation Act, 49
U.S.C. subsection 5101, et sec ., or the Resource Conservation and Recovery Act, 42 U.S.C.
subsection 6901, et sec .;
(b) An "Extremely Hazardous Waste", a "Hazardous Waste" or a "Restricted
Hazardous Waste", under subsections 25115, 25117 or 25122.7 of the California Health and
Safety Code, or is listed or identified pursuant to subsection 25140 or 44321 of the California
Health and Safety Code;
(c) A "Hazardous Material", "Hazardous Substance", "Hazardous Waste", "Toxic
Air Contaminant" or "Medical Waste" under subsections 25281, 25316, 25501, 25501.1, 117690
or 39655 of the California Health and Safety Code;
(d) An "Oil" or a "Hazardous Substance" listed or identified pursuant to Section 311
of the Federal Water Pollution Control Act, 33 U.S.C. Section 1321, as well as any other hydro
carbonic substance or by-product;
(e) A "Hazardous Waste", "Extremely Hazardous Waste" or an "Acutely Hazardous
Waste" pursuant to Chapter 11 of Title 22 of the California Code of Regulations;
(f) Any chemical known by the State to cause cancer or reproductive toxicity
pursuant to Section 25249.9(a) of the California Health and Safety Code;
(g) Any material which due to its characteristics or interaction with one or more other
substances, chemical compounds, or mixtures damages or threatens to damage, health, safety, or
OHS West:260010699.5 5
the environment, or is required by any law or public agency to be remediated, including
remediation which such law or public agency requires in order for the property to be put to any
lawful purpose;
(h) Any material whose presence would require remediation pursuant to the
guidelines set forth in the State of California Leaking Underground Fuel Tank Field Manual,
whether or not the presence of such material resulted from a leaking underground fuel tank;
(i) Pesticides regulated under the Feral Insecticide, Fungicide and Rodenticide Act, 7
U.S.C. subsection 136 et sec.;
(j) Asbestos, PCBs and other substances regulated under the Toxic Substances
Control Act, 15 U.S.C. subsection 2601 et sec .;
(k) Any radioactive material including any "source material", "special nuclear
material", "by-product material", "low-level wastes", "high-level radioactive waste", "spent
nuclear fuel" or "transuranic waste", and any other radioactive materials or radioactive wastes,
however produced, regulated under the Atomic Energy Act, 42 U.S.C. subsection 2011 et sec .,
the Nuclear Waste Policy Act, 42 U.S.C. subsection 10101 et sec ., or pursuant to the California
Radiation Control Law, California Health and Safety Code subsection 114960 et sec .;
(1) Any material regulated under the Occupational Safety and Health Act, 29 U.S.C.
subsection 651 et sec ., or the California Occupational Safety and Health Act, California Labor
Code subsection 6300 et sec .; and/or
(m) Any material regulated under the Clean Air Act, 42 U.S.C. subsection 7401 et
sec . or pursuant to Division 26 of the California Health and Safety Code.
"Indenture" means the Indenture, by and between the Community Facilities District and
the Trustee, as originally executed prior to, concurrently with, or following the execution of this
Acquisition Agreement, or as the same may from time to time be supplemented or amended by
any Supplemental Indenture entered into pursuant to the provisions thereof or, if such Indenture
has been discharged in accordance with its terms, the indenture, trust agreement, fiscal agent
agreement or similar instrument, regardless of title, pursuant to which bonds, notes or other
evidences of indebtedness of the Community Facilities District have been issued and are
outstanding, as originally executed or as the same may from time to time be supplemented or
amended pursuant to the provisions thereof.
"Investigation" means any observation, inquiry, examination, sampling, monitoring,
analysis, exploration, research, inspection, canvassing, questioning and/or surveying of
concerned property or any adjacent affected properties, including the improvements thereon, or
the air, soil, surface water or groundwater, and the surrounding population or properties, or any o
them, to characterized or evaluate the nature, extent or impact of Hazardous Materials.
"LIFOC" means that certain property, leased by the Developer from the Federal
Government, or leased by the City from the Federal Government pursuant to a Lease in
Furtherance of Conveyance between the Federal Government, as ground lessor, and either the
Developer of City, as ground lessee.
OHS West:260010699.5 6
"Official Statement" means the Official Statement of the Community Facilities District
relating to the City of Tustin Community Facilities District No. 06-1 (Tustin Legacy/Columbus
Villages) Special Tax Bonds, Series 2007A
"Overage Amount" means, with respect to a Segment, the amount, if any, by which the
Actual Cost of such Segment exceeds the Acquisition Cost of such Segment.
"Payment Request" means the document to be provided by the Developer to
substantiate the Purchase Price of one or more Segments, which shall be substantially in the form
of Exhibit B attached hereto.
"Person" means an individual, a corporation, a partnership, an association, a limited
liability company, a joint stock company, a trust, any unincorporated organization or a
government or political subdivision thereof.
"Plans" means the plans and specifications for the Facilities prepared or to be prepared at
the direction of the Developer pursuant to Section 3.1 hereof.
"Property" means the real property located within the Community Facilities District.
"Purchase Agreement" means the Bond Purchase Agreement, dated , 2007
by and between the Community Facilities District and the underwriter named therein.
"Purchase Price" means, with respect to a Segment, subject to the provisions of Section
2.2 hereof, the lesser of the Actual Cost or the Acquisition Cost of such Segment.
"Rate and Method" has the meaning ascribed thereto in the Indenture.
"Related Property" means, with respect to a Segment, the property on, in or over which
such Segment is located, which property, or an easement thereon or other interest therein, is
dedicated or otherwise conveyed to the City as provided in Section 2.4 hereof.
"Release" (with respect to Hazardous Materials) means any releasing, or threat of
releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, migrating, disposing or dumping into the environment.
"Remediate" or "Remediation" means any response or remedial action as defined under
Section 101(25) of CERCLA, and similar actions with respect to Hazardous Materials as defined
under comparable state and local laws, and any other cleanup, removal, containment, abatement,
recycling, transfer, monitoring, storage, treatment, disposal, closure, restoration or other
mitigation or remediation of Hazardous Materials or Releases required by any Environmental
Agency or within the purview of any Environmental Laws.
"Savings Amount" means, with respect to a Segment, the amount, if any, by which the
Acquisition Cost of such Segment exceeds the Actual Cost of such Segment.
OHS West:260010699.5 7
"Segments" means the discrete portions of the Facilities identified as such and described
in Exhibit A attached hereto, as the same may be modified by one or more supplements thereto
entered into in accordance with Section 2.5 hereof.
"Special Taxes" has the meaning ascribed thereto in the Indenture.
"State" means the State of California.
"Trustee" means Union Bank of California, N.A., as trustee under the Indenture, and any
successor thereto permitted under the Indenture.
ARTICLE II
ACQUISITION OF FACILITIES
Section 2.1. Acquisition of Facilities. The Developer hereby agrees to sell to the
Community Facilities District, and the Community Facilities District hereby agrees to purchase
from the Developer, each Segment for the Purchase Price thereof, subject to the terms and
conditions hereof. Title to each such Segment purchased pursuant hereto shall be transferred to
the City as of the Acceptance Date of such Segment.
In connection with the execution hereof, the Community Facilities District is issuing the
Bonds. The Purchase Price of the Segments is to be paid from proceeds of the Bonds deposited
in the Acquisition Account. The Community Facilities District shall not be obligated to pay the
Purchase Price of the Segments except from the proceeds of the Bonds. Neither the Community
Facilities District nor the City makes any warranty, either express or implied, that the proceeds
of the Bonds available for the payment of the Purchase Price of the Segments will be sufficient
for such purpose.
Section 2.2. Payment of Purchase Price. In order to receive the Purchase Price for a
completed Segment, the Developer shall deliver to the Community Facilities District and the
City Engineer (a) a Payment Request for such Segment, together with all attachments and
exhibits to be included therewith, (b) a copy of the documents conveying, or which previously
conveyed, to the City Acceptable Title to the Related Property of such Segment, as described in
Section 2.4 hereof, and (c) a copy of the Notice of Completion of such Segment which will be
filed in accordance with Section 3093 of the California Civil Code, if applicable.
Upon receipt of a completed Payment Request (and accompanying documentation) for a
Segment, the City Engineer shall conduct a review in order to confirm that such Segment was
constructed in accordance with the Plans therefor and to verify and approve the Actual Cost of
such Segment specified in such Payment Request. The Developer agrees to cooperate with the
City Engineer in conducting each such review and to provide the City Engineer with such
additional information and documentation as is reasonably necessary for the City Engineer to
conclude each such review. The City agrees to cause the City Engineer to conduct such review
without unreasonable delay. If the City Engineer determines that the Actual Cost specified in
such Payment Request as initially submitted exceeds the Developer's actual, reasonable cost of
constructing such Segment, the Developer shall resubmit such Payment Request, with the Actual
Cost specified therein modified so as to take into account such determination by the City
OHS West:260010699.5 c~
Engineer. Upon confirmation that such Segment has been constructed in accordance with the
Plans therefor, and verification and approval of the Actual Cost of such Segment, the City
Engineer shall sign the Payment Request and forward the same to the Community Facilities
District. Upon receipt of the reviewed and fully signed Payment Request, the Community
Facilities District shall, without unreasonable delay, direct the Trustee to pay the Purchase Price
of such Segment to the Developer.
Section 2.3. Payments of Credit Amount. If and when the amount of the Credit
Amount is greater than zero, the Developer shall be entitled to be paid from the Acquisition
Account an amount equal to the Credit Amount. In order to receive all or a portion of the Credit
Amount, the Developer shall deliver to the Community Facilities District a written request
signed by a Developer Representative stating (a) the amount to be paid, and (b) that such amount
does not exceed the amount of the Credit Amount as of the date of delivery of such written
request. Such written request shall be accompanied by a calculation demonstrating the amount
of the Credit Amount as of the date of delivery of such written request. Upon receipt of such
written request and accompanying calculation, the Community Facilities District shall, without
unreasonable delay, direct the Trustee to pay such amount from the Acquisition Account to the
Developer.
Section 2.4. Dedication of Property and Easements to City. Acceptable Title to all
property on, in or over which each Segment which is owned by the Developer or an Affiliate of
the Developer will be located shall be deeded over to the City by way of grant deed, quitclaim, or
dedication of such property, or easement thereon, if such easement is approved by the City as
being a sufficient interest therein to permit the City to properly own, operate and maintain such
Segment located therein, thereon or thereover, and to permit the Developer to perform its
obligations as set forth in this Acquisition Agreement. For any portion of a Segment not owned
by the Developer or an Affiliate of Developer, Developer shall verify that the Segment is free of
any liens or encumbrances as a result of the Developer's construction activities.
Upon the request of the City, the Developer shall furnish to the City a title report for such
property not previously dedicated or otherwise conveyed to the City or its designee, for review
and approval at least 20 calendar days prior to the transfer of Acceptable Title to a Segment to
the City or its designee. The City shall approve the title report unless it reveals a matter which,
in the reasonable judgment of the City, could materially affect the City's or its designee's use
and enjoyment of any part of the property or easement covered by the title report. In the event
the City does not approve the title report, the City shall not be obligated to accept title to such
Segment, and the Community Facilities District shall not be obligated to pay any portion of the
Purchase Price for such Segment, until the Developer has cured such objections to title to the
reasonable satisfaction of the City.
Section 2.5. Modifications to Segments and Acquisition Costs. The Community
Facilities District, the City and the Developer may make modifications in the composition and
description of a Segment, or in the amount of the Acquisition Cost for a Segment, whenever the
Community Facilities District, the City and the Developer deem such modifications to be
appropriate. Any such modification shall be approved and implemented by the Community
Facilities District, the City and the Developer executing a supplement to Exhibit A containing a
description of the modified Segment and, if applicable, Acquisition Cost. Upon the execution of
OHS West:260010699.5 9
any such supplement to Exhibit A, the description of the Segment and, if applicable, the
Acquisition Cost in Exhibit A shall be deemed to have been modified in accordance therewith.
ARTICLE III
CONSTRUCTION OF FACILITIES
Section 3.1. Preparation and Approval of Plans and Specifications. To the extent
that it has not already done so, the Developer shall cause Plans to be prepared for the Facilities.
The Developer shall obtain the written approval of the Plans from all appropriate departments of
the City or from any other public agency or public utility from which such approval must be
obtained. Copies of all such Plans shall be provided by the Developer to the City Engineer.
Section 3.2. Duty of Developer to Construct. The Developer shall construct or cause
to be constructed the Segments in accordance with the approved Plans and the specifications
approved by the City Engineer. The Developer shall perform all of its obligations hereunder and
shall conduct all operations with respect to the construction of the Segments in a good,
workmanlike and commercially reasonable manner, with the standard of diligence and care
normally employed by duly qualified persons utilizing commercially reasonable efforts in the
performance of comparable work and in accordance with generally accepted practices
appropriate to the activities undertaken. The Developer shall not be relieved of its obligation to
construct a Segment, and convey such Segment to the City in accordance with the terms hereof,
even if the Purchase Price for such Segment is less than the Actual Cost of such Segment.
Notwithstanding the foregoing, nothing set forth in this Acquisition Agreement shall be
construed to require the Developer to perform any work requiring a contractor's license, nor
shall the Developer be deemed to be performing construction services pursuant to this
Acquisition Agreement.
Section 3.3. Public Works Requirements. (a) Developer covenants and agrees that
each Segment to be acquired from Developer pursuant to this Agreement has been or shall be
constructed: (1) in substantial compliance with the approved Plans and Specifications for such
Facility, (2) in a good and workmanlike manner by well-trained, adequately supervised workers;
(3) in strict compliance with all applicable governmental and quasi-governmental rules,
regulations, laws, building codes and all applicable requirements of Developer's insurers and
lenders; and (4) in compliance with the requirements of Section 53313.5 of the California
Government Code, which statute requires that any Facility to be acquired by the City which is
completed after adoption of the Resolution of Formation of the Community Facilities District
must be constructed as if such Facility had been constructed under the direction, supervision, or
authority of the City.
(b) Developer warrants that each contract for the construction of any Facilities within
a Segment or Segments has been or shall be awarded to the responsible bidder whose bid
complies with all the requirements prescribed by law (including without limitation the rules,
regulations, and policies of the City, including the Uniform Public Construction Cost Accounting
Act, to which the City, pursuant to Resolution No. 03-37, adopted by the City Council of the
City on March 17, 2003, which the City has elected to subject itself) and this Section 3.3 and has
the overall lowest cost. The City retains the right to reject any or all bids at its sole discretion.
OHS West:260010699.5 10
(c) The Developer warrants that it has required and shall require, and the
specifications and bid and contract documents require, all contractors, subcontractors, vendors,
equipment operators and owner operators, in each such case to the extent such Persons are
engaged to perform work on a Segment, to pay at least General Prevailing Wage Rates to all
workers employed in the execution of the contract, to post a copy of the General Prevailing
Wage Rates at the job-site in a conspicuous place available to all employees and applicants for
employment, and to otherwise comply with applicable provisions of the California Labor Code,
the California Government Code and the California Public Contracts Code relating to public
works projects of cities. The City has provided the Developer with copies of tables setting forth
the General Prevailing Wage Rates, and the Developer hereby acknowledges receipt thereof.
(d) In performing its obligations under this Acquisition Agreement, the Developer
has complied and shall continue to comply with the applicable nondiscrimination and affirmative
action provisions of the laws of the United States of America, the State and the City. In
performing its obligations under this Acquisition Agreement, the Developer shall not
discriminate in its employment practices against any employee, or applicant for employment,
because of such person's race, religion, national origin, ancestry, sex, sexual orientation, age,
physical handicap, marital status or medical condition. The Developer has required and shall
continue to require, in any contract it enters into for the construction of any Segment, that the
contractor be subject to the provisions of this paragraph.
(e) The Developer has required and shall continue to require each contractor,
subcontractor, vendor, equipment operator and owner operator, in each such case to the extent
such Person is engaged to perform work on a Segment, to provide proof of insurance coverage
satisfying the requirements of Section 3.7 and Section 4.6 hereof throughout the term of the
construction of such Segment; provided, however, that, rather than requiring such contractors,
subcontractors, vendors, equipment operators and owner operators to provide such insurance, the
Developer may elect to provide the same for the benefit of such contractors, subcontractors,
vendors, equipment operators and owner operators.
(f) The Developer has complied and shall continue to comply, and has caused and
shall cause each contractor, subcontractor, vendor, equipment operator and owner operator, in
each such case to the extent such Person is engaged to perform work on a Segment, to comply,
with such other requirements relating to the construction of the Segments as the City may impose
by written notification delivered to the Developer, to the extent legally required as a result of
changes in applicable federal, State or City laws.
(g) The Developer has required and shall continue to require, and the specifications
and bid and contract documents require and shall require, all contractors, subcontractors,
vendors, equipment operators and owner operators, in each such case to the extent such Persons
are engaged to perform work on a Segment, to submit certified weekly payroll records to the
Developer for inspection by the City, and to furnish certified payroll records to the City promptly
upon request.
The Developer shall provide proof to the City, at such intervals and in such form as the
City may reasonably require, that the foregoing requirements have been satisfied as to all of the
Segments.
OHS West:260010699.5 l l
Section 3.4. Bonding Requirements. Prior to the commencement of construction of a
Segment, the Developer shall secure, or caused to be secured, appropriate bonds for the
construction and completion of construction of such Segment, a faithful performance bond in an
amount equal to 100% of the contract price for such Segment, and a bond for the security of
laborers and materialmen in an amount equal to 50% of the contract price for such Segment.
Each issuer of any such bond shall be duly authorized to issue such bond in the State. Each such
bond shall comply with the provisions of California Government Code Sections 66499.1 and
66499.2. On or after the Acceptance Date of a Segment, Developer may request, and the City
shall approve, a reduction in the faithful performance bond in an amount not more than 90% of
the estimated cost of such Segment until completion of the warranty period identified in Section
3.6.
Section 3.5. Inspection; Completion of Construction. The City shall have primary
responsibility for providing inspection of the work of construction of the Segments to insure that
the work of construction is accomplished in accordance with the Plans. The City's personnel
shall have access to the site of the work of construction at all reasonable times for the purpose of
accomplishing such inspection. Upon the completion of the construction of a Segment to the
satisfaction of the City's inspectors, the Developer shall notify the Community Facilities District,
the City and the City Engineer in writing that the construction of such Segment has been
completed in accordance with the Plans.
No later than ten days after receiving notification pursuant to Section 2.2 that a Segment
was constructed in accordance with the Plans therefor, the Developer shall forthwith file with the
Orange County Recorder a Notice of Completion, in form acceptable to the City Engineer,
pursuant to the provisions of Section 3093 of the California Civil Code, if applicable. The
Developer shall furnish to the City and the Community Facilities District a duplicate copy of
each such Notice of Completion showing thereon the date of filing with said County Recorder.
Section 3.6. Maintenance of Facilities; Warranties. The Developer shall maintain
each Segment in good and safe condition until the Acceptance Date of such Segment. Prior to
the Acceptance Date of a Segment, the Developer shall be responsible for maintaining such
Segment in proper operating condition, and shall perform such maintenance on such Segment as
the City Engineer reasonably determines to be necessary. As of the Acceptance Date of a
Segment, the performance bond provided by the Developer for such Segment pursuant to Section
3.4 hereof shall be reduced to an amount equal to 10% of the original amount thereof and shall
serve as a warranty bond to guarantee that such Segment will be free from defects due to faulty
workmanship or materials for a period of 12 months from the Acceptance Date of such Segment,
or the Developer may elect to provide a new warranty bond in such an amount. As of the
Acceptance Date of a Segment, the Developer shall assign to the City all of the Developer's
rights in any warranties, guarantees, maintenance obligations or other evidence of contingent
obligations of third Persons with respect to such Segment.
Section 3.7. Insurance Requirements. The Developer shall or, pursuant to Section
3.3(e) hereof, shall cause each contractor, subcontractor, vendor, equipment operator and owner
operator, in each such case to the extent such Person is engaged to perform work on a Segment,
to, at all times prior to the final Acceptance Date of all Segments, maintain, deliver to the City
and keep in full force and effect, the following insurance policies:
OHS West:260010699.5 IZ
(a) general liability insurance which includes, but is not limited to, coverage for
personal injury, premises and operations liability, losses related to independent contractors,
products and completed operations, contractual liability, explosion, collapse, and underground
hazards having not less than a combined single limit of $2,000,000 for one or more persons
injured and property damage in each occurrence;
(b) automobile liability insurance which includes, but is not limited to, owned, non-
owned and hired automobiles, in the amount of not less than a combined single limit of
$1,000,000 for one or more persons injured and property damage in each accident;
(c) course of construction insurance to the extent that it may apply to materials to be
used in the construction of a Segment, during the course of construction of such Segment; and
(d) worker's compensation insurance as required by the California Labor Code for all
persons employed directly or indirectly by Developer or any contractor or subcontractor in
connection with the construction of any Segment, accompanied by employer's liability insurance
in the amount of not less than $1,000,000 policy limit per employee, which policy shall contain a
waiver of subrogation in favor of the City.
Each policy of insurance shall be issued by an insurer licensed to do business in the State
by the California Department of Insurance, which insurer shall have a Bests' rating of Grade A
and Class VII (seven) (if an Admitted Insurer) and Grade A- and Class X (ten) or better (if
offered by a Surplus Line Broker); provided, however, that policies of worker's compensation
insurance may be issued by insurers with a Bests' rating of no less than B- and Class VII (seven)
or better or such insurance may be provided through the State Compensation Fund.
Each policy of insurance shall provide, or shall bear an endorsement that provides (a) that
the City, its elective and appointive boards, officers, agents and employees are additional
insureds under the policy as to the work being performed under the contract, (b) that the
coverage provided under the policy is primary and no other insurance carried by the City will be
called upon to contribute to a loss under the policy, (c) that the policy covers blanket contractual
liability, (d) that the policy limits or liability are provided on an occurrence basis, (e) that the
policy covers broad form property damage liability, (f) that the policy covers personal injury as
well as bodily injury liability, (g) that the policy covers explosion, collapse and underground
hazards, (h) that the policy covers products and completed operations, (i) that the policy covers
use of non-owned automobiles, and (j) that the coverage provided by the policy shall not be
cancelled or terminated unless 30 days' written notice is first given to the City, (k) in the event
that any carrier is unable to meet the term stipulated in (j) preceding a broker commitment to that
end is acceptable.
If Developer fails to maintain or cause to be maintained any insurance required hereby,
the City may, but shall not be obligated to, procure such insurance and recover the amount of the
premiums therefor from the Developer or retain such amount from any monies due to the
Developer under this Acquisition Agreement. The failure of the City to procure any such
insurance shall in no way relieve the Developer of any of its obligations under this Acquisition
Agreement.
OHS West:260010699.5 13
Section 3.8. Ownership of Facilities. Notwithstanding the fact that some or all of the
Facilities may be constructed in dedicated street rights-of--way or on property which has been or
will be dedicated to the City, the Facilities shall be and remain the property of the Developer
until title thereto is conveyed to the City as provided herein. Such ownership by the Developer
shall likewise not be affected by any agreement which the Developer may have entered into or
may enter into with the City pursuant to the provisions of the Subdivision Map Act, Section
66410 et s~ of the California Government Code, and the provisions of this Section shall
control.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS; INDEMNIFICATION
Section 4.1. Representations and Warranties of the Developer. The Developer
makes the following representations and warranties for the benefit of the Community Facilities
District and the City:
(a) Organization. The Developer represents and warrants that the Developer is a
corporation duly organized, validly existing and in good standing under the laws of the State, is
authorized to conduct business and is in good standing under the laws of the State, 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.
(b) Authority. The Developer represents and warrants that the Developer has the
power and authority to enter into this Acquisition Agreement, and has taken all action necessary
to cause this Acquisition Agreement to be executed and delivered, and this Acquisition
Agreement has been duly and validly executed and delivered on behalf of the Developer.
(c) Binding Obligation. The Developer represents and warrants that this Acquisition
Agreement is a valid and binding obligation of the Developer and is enforceable against the
Developer in accordance with its terms, subject to bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights in general and by general equity
principles.
(d) Official Statement. The Developer represents and warrants that the statements
relating to the Developer, its property ownership, its contractual arrangements, the development
of the Property and the risks associated therewith contained in the Official Statement, including
statements relating to Hazardous Materials on, under or in the Property and the risks associated
therewith and statements relating to material legal impediments to the Developer's proceeding
with and completing the construction of the Facilities or to the development of the Property as
contemplated by the Developer, did not, as of the date of the Official Statement, 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 therein, in the light of the circumstances under which they were
made, not misleading.
(e) Environmental Matters Relating to Segments. The Developer represents and
warrants that none of the Developer, any of its Affiliates, or any subcontractor, agent, or
OHS West:260010699.5 14
employee thereof, has used, generated, manufactured, procured, stored, released, discharged, or
disposed of (whether accidentally or intentionally) any Hazardous Material on, under or in any
Segment or the Related Property of such Segment, or transported (whether accidentally or
intentionally) any Hazardous Material to or from such Segment or such Related Property, in
violation of any federal, state or local law, ordinance, regulation, rule or decision regulating
Hazardous Material.
The Developer represents and warrants that, as of the Acceptance Date of each Segment,
there will not be present on, under or in such Segment or the Related Property of such Segment
(but only to the extent that the Related Property of such Segment was owned by the Developer or
an Affiliate of the Developer prior to the Acceptance Date), or any portion thereof, any
Hazardous Materials, except for (i) any types 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, including any Hazardous Materials located
within any LIFOC.
(f) Environmental Matters Relating to Property. The Developer represents and
warrants that neither the Developer, nor any subcontractor, agent, or employee thereof has used,
generated, manufactured, procured, stored, released, discharged, or disposed of (whether
accidentally or intentionally) at any time on or prior to the date hereof any Hazardous Material
on, under or in the Property owned by the Developer or any Affiliate of the Developer, or any
structure, fixtures, equipment, or other objects thereon, or transported (whether accidentally or
intentionally) any Hazardous Material to or from the Property, or any structure, fixtures,
equipment, or other objects thereon, in violation of any federal, state or local law, ordinance,
regulation, rule or decision regulating Hazardous Material.
The Developer represents and warrants that to the best of Developer's knowledge after
diligent inquiry (and except for any Hazardous Materials located within any LIFOC) there is not
present on, under, or in the Property owned by the Developer or any Affiliate of the Developer,
or any structure, fixtures, equipment, or other objects thereon, or any portion thereof, any
Hazardous Materials, except for (i) any types 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, and (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.
The Developer represents and warrants that, except for any Hazardous Materials located
within any LIFOC, the Developer has not received notice of, and to the best of the Developer's
knowledge there is not, any proceeding or formal inquiry by any governmental authority, body or
agency with respect to the presence of Hazardous Materials on, under or in the Property, or any
structure, fixtures, equipment, or other objects thereon, or the migration thereof from or to other
property, other than as disclosed in the Official Statement.
OHS West:260010699.5 15
The Developer represents and warrants that, except as disclosed in the Official Statement,
there is no legal impediment that would make infeasible (i) the Developer's proceeding with and
completing the construction of the Facilities, or (ii) the development of the Property as
contemplated by the Developer.
Section 4.2. Covenants of the Developer. The Developer makes the following
covenants for the benefit of the Community Facilities District and the City:
(a) Completion of Segments. The Developer covenants that it will use its reasonable
and diligent efforts to do all things which may be lawfully required of it in order to cause the
Segments to be completed in accordance with this Acquisition Agreement.
(b) Compliance with Laws. The Developer covenants that, while the Facilities are
owned by the Developer or required pursuant to this Acquisition Agreement to be maintained by
the Developer, it will not commit, suffer or permit any of its agents, employees or contractors to
commit any act to be done in, upon or to the Facilities in violation in any material respect 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 Facilities.
(c) Payment Requests. The Developer covenants that (i) it will not request payment
from the Community Facilities District under this Acquisition Agreement for the acquisition of
any improvements that are not part of a Segment, and (ii) it will diligently follow all procedures
set forth in this Acquisition Agreement with respect to Payment Requests.
(d) Financial Records. Until the final Acceptance Date of the Facilities, the
Developer covenants to maintain proper books of record and account for the Facilities and all
costs related thereto. The Developer covenants that such accounting books will be maintained in
accordance with generally accepted accounting principles, and will be available for inspection by
the Community Facilities District and the City within a reasonable time after the Community
Facilities District or the City submits a written request to the Developer requesting that such
books be made available for inspection.
(e) Environmental Matters Relating to Segments. The Developer covenants that
neither the Developer, nor any subcontractor, agent or employee thereof, will use, generate,
manufacture, procure, store, release, discharge or dispose of (whether accidentally or
intentionally) at any time on or prior to the Acceptance Date of each Segment any Hazardous
Material on, under or in such Segment or the Related Property of such Segment, or transport
(whether accidentally or intentionally) any Hazardous Material to or from such Segment or such
Related Property, in violation of any federal, state or local law, ordinance, regulation, rule or
decision regulating Hazardous Material in effect at the time of such use, generation,
manufacturing, procurement, storage, release, discharge, disposal or transportation.
(f) Permits. The Developer covenants that it will obtain all governmental or other
permits required to proceed with the construction of the Facilities and that it will pay all fees
relating thereto that are required to be paid.
OHS West:260010699.5 16
Section 4.3. Representations and Warranties of the Communitv Facilities District
and the City. The Community Facilities District and the City make the following
representations and warranties for the benefit of the Developer:
(a) Authority. The Community Facilities District represents and warrants that the
Community Facilities District has the power and authority to enter into this Acquisition
Agreement, and has taken all action necessary to cause this Acquisition Agreement to be
executed and delivered, and this Acquisition Agreement has been duly and validly executed and
delivered on behalf of the Community Facilities District. The City represents and warrants that
the City has the power and authority to enter into this Acquisition Agreement, and has taken all
action necessary to cause this Acquisition Agreement to be executed and delivered, and this
Acquisition Agreement has been duly and validly executed and delivered on behalf of the City.
(b) Binding Obligation. The Community Facilities District represents and warrants
that this Acquisition Agreement is a valid and binding obligation of the Community Facilities
District and is enforceable against the Community Facilities District in accordance with its terms.
The City represents and warrants that this Acquisition Agreement is a valid and binding
obligation of the City and is enforceable against the City in accordance with its terms.
Section 4.4. Covenants of the Communitv Facilities District and the City. The
Community Facilities District and the City make the following covenants for the benefit of the
Developer:
(a) Completion of Segments. The City covenants that it will use its reasonable and
diligent efforts to take all actions which may be lawfully required of it in issuing permits,
processing and approving Plans and inspecting the Segments in accordance with this Acquisition
Agreement.
(b) Payment Requests. Each of the Community Facilities District and the City
covenants that it will diligently follow all procedures set forth in this Acquisition Agreement
with respect to each Payment Request.
(c) Financial Records. Until the final Acceptance Date, the Community Facilities
District covenants to maintain proper books of record and account for the Special Taxes and the
Bonds. The Community Facilities District covenants that such accounting books will be
maintained in accordance with generally accepted accounting principles applicable to
governmental entities, and will be available for inspection by the Developer within a reasonable
time after the Developer submits a written request to the Community Facilities District
requesting that such books be made available for inspection.
Section 4.5. (Reserved)
Section 4.6. Indemnification and Related Provisions. (a) Indemnification. As a
material part of the consideration for this Acquisition Agreement, and to the maximum extent
permitted by law, the Developer shall protect, indemnify, defend, and hold harmless the
Community Facilities District and the City and each of their respective officers, employees,
contractors (including without limitation Vestar, Tustin Legacy Partners, and SEMA,
subcontractors, and agents (the "City Indemnified Parties"), with counsel reasonably acceptable
OHS West:260010699.5 17
to the City, from and against any and all Claims resulting or arising from or in any way related to
the following (provided the Developer shall not be responsible for [and such indemnity shall not
apply to] claims arising solely from the gross negligence or willful misconduct of the
Indemnified Parties) (and provided further that the City has not approved an assignment or other
transfer of any obligations hereunder to an Indemnified Party):
Facilities;
(i) The Developer's development of the Property and construction of the
(ii) All acts and omissions of the Developer in connection with the Property or
the Facilities, or any portion of the foregoing;
(iii) Any plans or designs for the Property or the Facilities prepared by or on
behalf of the Developer, including any errors or omissions with respect to such plans or designs;
(iv) Any loss, expense or damage incurred by the City Indemnified Parties
resulting from any (1) inaccuracy in or breach of any representation or warranty of the
Developer, or (2) any breach or default by the Developer, under this Acquisition Agreement;
(v) Any development or construction of improvements, whether regarding the
quality, adequacy or suitability of the plans, any labor, service, equipment or material furnished
to the Property or the Facilities, or any portion of the foregoing, by any person furnishing the
same, or otherwise; or
(vi) The failure by the Developer and/or the Developer's officers, directors,
employees, agents, representatives, consultants and/or contractors (at every tier) to comply with
prevailing wage requirements to the extent imposed by State law and/or the Davis-Bacon Act
requirements imposed by Federal law in the construction of the Project.
(b) Environmentallndemnity. (1) Except as provided in subparagraph (2) below, and
as a material part of the consideration for this Acquisition Agreement, and effective as to the
entirety of the activities contemplated under this Acquisition Agreement including construction
of the Facilities, the Developer hereby agrees that Developer shall, to the maximum extent
permitted by law, indemnify, protect, defend, and hold harmless the City Indemnified Parties
from and against any and all Claims resulting or arising from any act or omission by the
Developer or its contractors which causes, creates, or exacerbates the damages caused by, or
results in increased investigation or clean-up costs associated with, any Hazardous Materials
present on, in, under, or adjacent to any portion or portions of any Related Property of any
Segment, regardless of whether any such condition is known or unknown now or upon
acquisition, and regardless whether any such condition pre-exists acquisition or is subsequently
caused.
(2) Developer's indemnification obligation under this Section 4.6(b)
shall cease upon the Developer providing evidence to the City that Developer has procured a
pollution legal liability insurance policy with a policy term that expires no sooner than six (6)
years after the effective date of this Acquisition Agreement and a limit of no less than 5 million
dollars ($5,000,000), naming the Community Facilities District and the City as additional insured
parties, and providing coverage coextensive with the scope of the environmental indemnification
OHS West:260010699.5 l c~
obligation set forth in subparagraph (1) above of this Section 4.6(b). If the policy procured to this
subparagraph does not set aside a limit of five million dollars ($5,000,000.00) dedicated to this
project and the limits of such policy are eroded by events or claims unrelated to this project
which results in coverage of five million dollars ($5,000,000.00) being unavailable under such
policy for this project, Developer's indemnity obligations shall continue, but in no event shall
such indemnity obligations exceed five million dollars ($5,000,000.00) less the amount of any
payments made to the City pursuant to the insurance policy.
(c) Limitations of Indemnities. The indemnities set forth in this Section 4.6 shall
survive the termination of this Acquisition Agreement for a period of six (6) years from and after
the effective date of this Acquisition Agreement; provided, however, the expiration of the
indemnity obligation set forth in this Section 4.6 shall not affect, impair or prejudice any rights
(i) with respect to any Claims of the City Indemnified Parties pursuant to Section 4.6(a) above or
(ii) with respect to any Claims of the Indemnified Parties pursuant to Section 4.6(b) above which
(A) arise from facts or events occurring prior to the date of such termination and (B) are set forth
in a written notification delivered to Developer prior to the date of such termination. ,
Developer shall not be responsible for paying in excess of 5 million dollars ($5,000,000)
pursuant to its obligations under paragraph (b) of this Section.
(d) Claim Response. In the event that any Environmental Agency or other third party
brings, makes, alleges, threatens to bring or asserts a Claim arising from or related to an act or
omission for which Developer has provided the indemnity set forth in paragraph (b), the
Developer shall promptly upon its receipt of notice thereof, notify the City in writing and
hereafter shall promptly and responsibly respond to such Claim. Developer, at its sole
discretion, may respond to such Claim by first tendering it to the insurer that has issued the
pollution legal liability policy described in subparagraph (2) of Section 4.6(b) above and/or a
claim to the insurer that has issued the contractors pollution liability policy described in Section
4.6(f) below and/or a claim to the United States under Section 330, Fiscal Year 1993, National
Defense Authorization Act Public Law 102-484 or a demand pursuant to Section 120 (h) of the
Comprehensive Environmental Response Compensation and Liability Act ("CERCLA") (42
U.S.C. 962O(h)). If Developer responds by tendering any such claims, it shall be afforded a
reasonable time to prosecute such claims, provided that the Developer shall pay any actual costs
incurred by the City that are within the Developer's environmental indemnity obligations under
Section 4.6(b) (and the City shall take reasonable measures to minimize such costs) before the
claim(s) are resolved. Further, upon receipt of such Claim, order, demand or requirement, the
Developer shall (i) take such reasonable measures, as necessary or appropriate, to reasonably
dissuade such Environmental Agency or other third party from bringing, making, alleging or
asserting any Claim against City Indemnified Parties arising from or related to an act or omission
for which Developer has provided the indemnity set forth in paragraph (b), ,and (ii) request that
the Environmental Agency not issue any order, demand or requirement to the City Indemnified
Parties under any of the Environmental Laws, or any other local, regional, State or federal law,
or seek penalties or take other punitive action against City Indemnified Parties, in connection
with, arising from, or related to an act or omission for which Developer has provided the
indemnity set forth in paragraph (b).
(e) Release Notification and Remedial Actions. If any Release of a Hazardous
Material is discovered on the Property, or any portion of the foregoing by the Developer or its
OHS West:260010699.5 19
contractors or otherwise discovered before completion of the Facilities to be constructed
pursuant to this Agreement and regardless of the cause, the Developer shall promptly, and in no
event later than any period of time set forth in the LIFOC or in any of the other Federal
Documents necessary to seek indemnification from the United States of America (i) provide
written notice (or in the event of emergency, telephonic notice, followed within two Business
Days by written notice) of any such Release to the City and (ii) at the Developer's sole risk and
expense and solely under the name of the Developer (but without prejudice to the Developer's or
the City's rights against any responsible party or against the Federal Government pursuant to
Section 330, Fiscal Year 1993, National Defense Authorization Act Public Law 102-484 or
against any environmental insurer): (1) consult with the Navy and appropriate Environmental
Agencies to the extent required by the LIFOC or Environmental Law to determine what if, any
actions, should be taken with respect to such Release and take any such action as directed by the
Navy on LIFOC property or by and Environmental Agency; provide the City, and the Navy on
LIFOC property, with satisfactory evidence of the actions taken as required in this Section. The
City and the Developer will coordinate any response action with appropriate environmental
insurance carriers, and, to the extent necessary, the Navy.
(~ Contractors' Pollution Liability Insurance. Prior to award of any contracts for
improvements under this Acquisition Agreement which involve or require soil penetrations
below a depth of five (5) feet from the surface and specifically including certain storm drain and
related wet utility improvement work to be performed by FYDAQ Company, Inc., the Developer
shall ensure that such contractors obtain at the sole cost and expense of the contractor or
Developer and maintain from the inception, contractors' pollution legal liability insurance
coverage for the construction of the applicable Facilities funded under this Acquisition
Agreement, including coverage for loss, remediation expense, and legal defense expenses
associated with third party claims arising from or related to the acts or omissions of the
contractor or its subcontractors which [cause, create or ]exacerbate the damages caused by, or
results in increased investigation or clean-up costs associated with, any Hazardous Materials
present on, in, under, or adjacent to any portion or portions of any Related Property of any
Segment, regardless of whether any such condition is known or unknown now or upon
acquisition and regardless whether any such condition pre-exists acquisition or is subsequently
caused. Such insurance shall name the Developer, the Community Facilities District and the City
as additional insureds to address pollution risks. Such policy shall comply with the following to
the extent commercially reasonably available as concurred to by the City:
(i) the policy shall be written by the insurance company selected by the
Developer and in form and content acceptable to the City consistent with provisions of this
Section 4.6(f);
(ii) the policy shall provide no less than $5,000,000 in coverage, subject to a
maximum $250,000 deductible/self insured retention amount per claim, with such cost to be
borne by Developer or its contractor, to protect against claims and loss from liability relating to
known and unknown conditions related to construction providing coverage for not less than six
(6) years. Coverage shall include bodily injury, property damage, remediation costs and defense
costs, associated with third party claims arising from or related to the acts or omissions of the
contractor or its subcontractors which [cause, create or ]exacerbate the damages caused by, or
results in increased investigation or clean-up costs associated with, any Hazardous Materials
OHS West:260010699.5 20
present on, in, under, or adjacent to any portion or portions of any Related Property of any
Segment, regardless of whether any such condition is known or unknown now or upon
acquisition and regardless whether any such condition pre-exists acquisition or is subsequently
caused.
(iii) The Developer shall provide to the City evidence of the aforementioned
insurance with insurer endorsements, which must meet the requirements of this Section. An
Accord Certificate will not be accepted solely as evidence of the name of the insurers and the
amounts of insurance unless it demonstrates an enforceable contract of insurance. Failure to
comply with these requirements shall result in annulment of the award and forfeiture of any
proposal guarantee and the City will pursue award to the next qualified responsive bidder. The
Developer is advised that insurance requirements are non-negotiable and the City will not
consider waiving insurance requirements. There are no exceptions.
(iv) such policy shall not be a cancelable by the insurer, the Developer or any
contractor, subcontractor, vendor, equipment operator or owner operator without the prior
written consent of the City, and shall have the premium paid at inception and 100% earned at
such time.
(g) Claims Against Federal Government. Nothing set forth in this Section 4.6 shall
be deemed to cause Developer to assume any obligation of the Federal Government, and
Developer hereby reserves any and all rights against the Federal Government. Further, and
without limiting the indemnification obligations of Developer pursuant to this Section 4.6,
nothing shall prohibit or impair the right of Developer to contest in good faith any Claim arising
or asserted pursuant to this Section 4.6. In addition, City hereby agrees to cooperate with
Developer, without any cost or liability to City, with respect to the enforcement of any
obligations or liabilities against the Federal Government and/or any other responsible third
parties arising pursuant to the terms of any LIFOC lease and/or pursuant to any other applicable
legal requirement.
ARTICLE V
TERMINATION; DAMAGES
Section 5.1. Termination by Agreement. This Acquisition Agreement may be
terminated by written agreement of the Community Facilities District, the City and the
Developer. Upon such termination, the City may, but shall not be obligated to, complete the
acquisition, construction and installation of any Segments not theretofore acquired from the
Developer pursuant hereto, and the Community Facilities District and the City may use all or any
portion of the monies in the Acquisition Account to pay for such acquisition, construction and
installation. In the event of such termination, the Developer shall have no claim or right to any
further payments for the Purchase Price of any Segment except as otherwise may be provided in
such written agreement.
Section 5.2. Termination by City. (a) The following events shall constitute grounds for
the Community Facilities District and the City, at their option, to terminate this Acquisition
Agreement, without the consent of the Developer:
OHS West:260010699.5 21
(i) the Developer shall voluntarily file for reorganization or other relief under
any Federal or state bankruptcy or insolvency law;
(ii) the Developer shall have any involuntary bankruptcy or insolvency action
filed against it, or shall suffer a trustee in bankruptcy or insolvency or receiver to take possession
of the assets of Developer, or shall suffer an attachment or levy of execution to be made against
the property it owns within the Community Facilities District unless, in any of such cases, such
action, possession, attachment or levy shall have been terminated or released within 60 days after
the commencement thereof;
(iii) except to the extent that the Developer's obligation to construct the
Facilities is excused pursuant to Section 5.5 hereof, the Developer shall abandon construction of
the Facilities (failure for a period of three consecutive months or failure for two periods of two
consecutive months to undertake substantial work related to the construction of the Facilities
shall constitute anon-exclusive example of such abandonment);
(iv) the Developer shall breach any material covenant or default in the
performance of any material obligation under this Acquisition Agreement, or any representation
or warranty of the Developer set forth herein or in any certifications delivered by the Developer
hereunder shall prove to have been false or misleading in any material respect when made or
deemed made;
(v) the Developer shall transfer any of its rights or obligations under this
Acquisition Agreement, without the prior written consent of the Community Facilities District
and the City;
(vi) the Developer shall have made any material misrepresentation or material
omission in any written materials furnished in connection with any preliminary official
statement, official statement or bond purchase contract which has not been corrected and is used
in connection with the sale of any Bonds;
(vii) the Developer or any of its partners, permitted assigns or successors-in-
interest under this Acquisition Agreement or any Affiliate of the Developer shall at any time
bring any action, suit, proceeding, inquiry or investigation at law or in equity, before any court,
regulatory agency, public board or body which in any way seeks to challenge or overturn the
Community Facilities District, the levy of the Special Tax in accordance with the Rate and
Method or the validity of the Bonds or the proceedings leading up to their issuance; provided,
however, that the Developer or any of its partners, permitted assigns or successors-in-interest
under this Acquisition Agreement or any Affiliate of the Developer that owns any of the
Property may bring an action or suit contending that the Special Tax has not been levied in
accordance with the methodology contained in the Rate and Method;
(viii) the Developer shall materially fail to complete the Facilities as
contemplated in this Acquisition Agreement; or
(ix) the Developer or any of its partners, permitted assigns or successors-in-
interest under this Acquisition Agreement or any Affiliate of the Developer shall fail to pay the
Special Taxes payable by the Developer and/or its Affiliates as and when due.
OHS West:260010699.5 22
(b) If any event listed in subsection (a)(i), (a)(ii), or (a)(vii) above occurs, this
Acquisition Agreement shall automatically terminate.
(c) If any event listed in subsection (a)(iii), (a)(iv), (a)(v), (a)(vi), (a)(viii) or (a)(ix)
above occurs, the Community Facilities District and the City may elect to terminate this
Acquisition Agreement. If the Community Facilities District and the City intend to terminate
this Acquisition Agreement, the Community Facilities District and the City shall first notify the
Developer in writing of such intention and of the grounds for such termination and allow the
Developer 60 days to eliminate or mitigate to the reasonable satisfaction of the Community
Facilities District and the City the grounds for such termination. If, in the reasonable opinion of
the Community Facilities District and the City, such grounds for termination can be eliminated
or mitigated, but not within such 60 day period, such period shall be extended in order to provide
a reasonably sufficient amount of time to accomplish such elimination or mitigation, but only if
the Developer has instituted corrective action within such 60 day period and the Developer is
thereafter proceeding with diligence to eliminate or mitigate such grounds for termination. If at
the end of such period (and any extension thereof), the Developer has not eliminated or
completely mitigated such grounds for termination to the reasonable satisfaction of the
Community Facilities District and the City, the Community Facilities District and the City may
then terminate this Acquisition Agreement by delivering a written notice of such termination to
the Developer. If any of the grounds listed in subsection (a)(iii), (a)(iv), (a)(v), (a)(vi), (a)(viii)
or (a)(ix) above for termination of this Acquisition Agreement by the Community Facilities
District and the City has occurred and has not been eliminated or mitigated to the reasonable
satisfaction of the Community Facilities District and the City or waived by the Community
Facilities District and the City, the Community Facilities District, from and after the occurrence
thereof, shall have no obligation to acquire any Segment pursuant hereto.
Section 5.3. Termination by Developer. (a) The following events shall constitute
grounds for the Developer, at its option, to terminate this Acquisition Agreement, without the
consent of the Community Facilities District or the City:
(i) the City or the Community Facilities District shall voluntarily file for
reorganization or other relief under any Federal or state bankruptcy or insolvency law;
(ii) the City or the Community Facilities District shall have any involuntary
bankruptcy or insolvency action filed against it, or shall suffer a trustee in bankruptcy or
insolvency or receiver to take possession of the assets of the City or the Community Facilities
District, as applicable, or shall suffer an attachment or levy of execution to be made against the
property it owns unless, in any of such cases, such action, possession, attachment or levy shall
have been terminated or released within 60 days after the commencement thereof;
(iii) the Community Facilities District or the City shall breach any material
covenant or default in the performance of any material obligation under this Acquisition
Agreement, or any representation or warranty of the Community Facilities District or the City set
forth herein shall prove to have been false or misleading in any material respect when made; and
OHS West:260010699.5 23
(iv) the Community Facilities District or the City shall transfer any of its
respective rights or obligations under this Acquisition Agreement, without the prior written
consent of the Developer;
(b) If any event listed in subsection (a) above occurs, the Developer may elect to
terminate this Acquisition Agreement. If the Developer intends to terminate this Acquisition
Agreement, the Developer shall first notify the Community Facilities District and the City in
writing of such intention and of the grounds for such termination and allow the Community
Facilities District and the City 60 days to eliminate or mitigate to the reasonable satisfaction of
the Developer the grounds for such termination. If, in the reasonable opinion of the Developer,
such grounds for termination can be eliminated or mitigated, but not within such 60 day period,
such period shall be extended in order to provide a reasonably sufficient amount of time to
accomplish such elimination or mitigation, but only if the Community Facilities District and the
City have instituted corrective action within such 60 day period and the Community Facilities
District and the City are thereafter proceeding with diligence to eliminate or mitigate such
grounds for termination. If at the end of such period (and any extension thereof), the Community
Facilities District and the City have not eliminated or completely mitigated such grounds for
termination to the reasonable satisfaction of the Developer, the Developer may then terminate
this Acquisition Agreement by delivering a written notice of such termination to the Community
Facilities District and the City.
Section 5.4. Remedies in General; Damages Limited. The Developer acknowledges
that neither the Community Facilities District nor the City would have entered into this
Acquisition Agreement if it were to be liable in damages under or with respect to this
Acquisition Agreement. Any and all obligations of the Community Facilities District and the
City hereunder shall be payable only from amounts on deposit in the Acquisition Account.
Neither the Community Facilities District nor the City shall have any pecuniary liability under
this Acquisition Agreement for any act or omission of the Community Facilities District or the
City, except as set forth in this Section. In no event will an act, or an omission or failure to act,
by the Community Facilities District or the City with respect to the sale or proposed sale of the
Bonds subject the Community Facilities District or the City to pecuniary liability therefor.
In general, each of the parties hereto may pursue any remedy at law or equity available
for the breach of any provision of this Acquisition Agreement; provided, however, that the
Community Facilities District and the City shall not be liable in damages to the Developer. In
light of the foregoing, the Developer covenants not to sue for or claim any damages for any
alleged breach of, or dispute which arises out of, this Acquisition Agreement.
Section 5.5. Force Maieure. Except as may be specifically provided in this Acquisition
Agreement, the performance by the Community Facilities District, the City or the Developer of
its respective obligations hereunder shall be excused during, and the period of time for
performance of its respective obligations hereunder shall be extended for a period of time equal
to, any period of delay caused by reason of (a) acts of God or civil commotion, (b) riots, strikes,
picketing or other labor disputes, (c) shortages of materials or supplies, (d) damage to work in
progress by reason of fire, floods, earthquakes or other casualty, (e) enactment of laws which
prevent or preclude compliance by the Community Facilities District, the City or the Developer
with a material provision of this Acquisition Agreement, (f) administrative proceedings
OHS West:260010699.5 24
challenging the Community Facilities District, the Bonds, this Acquisition Agreement or a
Payment Request brought by Persons other than the Community Facilities District, the City or
the Developer, or any Affiliate thereof, (g) litigation (including the pendency thereof), brought
by Persons other than the Community Facilities District, the City or the Developer, or any
Affiliate thereof, including, without limitation, litigation challenging the Community Facilities
District, the development of the Property, the Bonds, this Acquisition Agreement, a Payment
Request, (h) pendency of initiatives or referenda affecting the Community Facilities District, the
development of the Property, the Bonds, this Acquisition Agreement or a Payment Request, or
(i) any other cause beyond the reasonable control of the Community Facilities District, the City
or the Developer, respectively; provided, however that, as to any party (x) the financial inability
of such party itself to perform under this Acquisition Agreement, and (y) the negligence or
willful misconduct of such party shall not constitute a permitted delay for purposes of this
Section and, provided, further, that any action, omission, or failure to approve a Payment
Request or other approval, or the imposition of additional requirements or restrictions in
connection therewith by the Community Facilities District or the City, caused by the Developer's
actual failure to comply with applicable laws or regulations or the provisions of this Acquisition
Agreement (other than an actual failure to comply that results from the enactment of laws which
prevent or preclude compliance by a party with a material provision of this Acquisition
Agreement, administrative proceedings challenging the Community Facilities District, the
Bonds, this Acquisition Agreement or a Payment Request or other approval, litigation brought by
persons other than a party, or an Affiliate of a party, including without limitation, litigation
challenging the Community Facilities District, the development of the Property, the Bonds, this
Acquisition Agreement or a Payment Request or other approval, initiative or referenda affecting
the Community Facilities District, the development of the Property, the Bonds, this Acquisition
Agreement or a Payment Request or other approval), shall not constitute a permitted delay for
the Developer for purposes of this Section.
If the Community Facilities District, the City or the Developer shall claim that
performance of its respective obligations hereunder is excused by a permitted delay pursuant to
this Section, such party shall give the other parties hereto written notice of the commencement of
such permitted delay within 30 days after first gaining knowledge of such permitted delay.
If the Community Facilities District, the City or the Developer shall claim that
performance of its respective obligations hereunder is excused by a permitted delay pursuant to
this Section, such party's performance shall only be excused during, and the period of time for
performance of its obligations hereunder shall only be extended for a period of time equal to, the
period of time for which the cause of such permitted delay is in effect and is actually causing a
delay in performance by such party of its obligations hereunder.
The Community Facilities District, the City and the Developer shall act diligently and in
good faith to avoid foreseeable delays in performance and to remove the cause of any permitted
delay under this Section or develop a reasonable alternative means of performance of its
respective obligations hereunder.
OHS West:260010699.5 25
ARTICLE VI
MISCELLANEOUS
Section 6.1. Developer as Independent Contractor. In performing under this
Acquisition Agreement, it is mutually understood that the Developer is acting as an independent
contractor, and not an agent of the Community Facilities District or the City. Neither the
Community Facilities District nor the City shall have any responsibility for payment to any
contractor, subcontractor or supplier of the Developer.
Section 6.2. Other Agreements. Nothing contained herein shall be construed as
affecting the City's or the Developer's respective duty to perform its respective obligations under
other agreements, land use regulations or subdivision requirements relating to the development
of the Property, which obligations are and shall remain independent of the Developer's rights
and obligations, and the City's rights and obligations, under this Acquisition Agreement;
provided, however, that the Developer shall use its reasonable and diligent efforts to perform
each and every covenant to be performed by it under any lien or encumbrance, instrument,
declaration, covenant, condition, restriction, license, order, or other agreement, the
nonperformance of which could reasonably be expected to materially and adversely affect the
acquisition, construction and installation of the Segments.
Section 6.3. Binding on Successors and Assigns. Neither this Acquisition Agreement
nor the duties and obligations of the Developer hereunder may be assigned to any Person other
than an Affiliate of the Developer without the written consent of the Community Facilities
District and the City, which consent shall not be unreasonably withheld or delayed. Neither this
Acquisition Agreement nor the duties and obligations of the City or the Community Facilities
District hereunder may be assigned to any Person, without the written consent of the Developer,
which consent shall not be unreasonably withheld or delayed. The agreements and covenants
included herein shall be binding on and inure to the benefit of any partners, permitted assigns,
and successors-in-interest of the parties hereto.
Section 6.4. Amendments. This Acquisition Agreement may be amended by an
instrument in writing executed and delivered by the Community Facilities District, the City and
the Developer.
Section 6.5. Waivers. No waiver of, or consent with respect to, any provision of this
Acquisition Agreement by a party hereto shall in any event be effective unless the same shall be
in writing and signed by such party, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which it was given.
Section 6.6. No Third Party Beneficiaries. No person or entity shall be deemed to be a
third party beneficiary hereof, and nothing in this Acquisition Agreement (either express or
implied) is intended to confer upon any person or entity, other than the Community Facilities
District, the City and the Developer (and their respective successors and assigns), any rights,
remedies, obligations or liabilities under or by reason of this Acquisition Agreement.
OHS West:260010699.5 26
Section 6.7. Notices. Any written notice, statement, demand, consent, approval,
authorization, offer, designation, request or other communication to be given hereunder shall be
given to the party entitled thereto at its address set forth below, or at such other address as such
party may provide to the other party in writing from time to time, namely:
Community Facilities District: City of Tustin
Community Facilities District No. 06-1
(Tustin LegacyColumbus Villages)
c/o City of Tustin
300 Centennial Way
Tustin, California 92680
Attention: Finance Director
City: City of Tustin
300 Centennial Way
Tustin, California 92680
Attention: Assistant City Manager and
Public Works Director
Developer: Lennar Homes of California, Inc.
Land Division, Project Management
25 Enterprise, Suite 500
Aliso Viejo, California 92656
Attention: Marsha Santry
Each such notice, statement, demand, consent, approval, authorization, offer, designation,
request or other communication hereunder shall be deemed delivered to the party to whom it is
addressed (a) if personally served or delivered, upon delivery, (b) if given by electronic
communication, whether by telex, telegram or telecopier, upon the sender's receipt of an
appropriate answerback or other written acknowledgment, (c) if given by registered or certified
mail, return receipt requested, deposited with the United States mail postage prepaid, 72 hours
after such notice is deposited with the United States mail, (d) if given by overnight courier, with
courier charges prepaid, 24 hours after delivery to said overnight courier, or (e) if given by any
other means, upon delivery at the address specified in this Section.
Section 6.8. Attorneys' Fees. If any action is instituted to interpret or enforce any of
the provisions of this Acquisition Agreement, the party prevailing in such action shall be entitled
to recover from the other party thereto reasonable attorney's fees and costs of such suit
(including both prejudgment and post judgment fees and costs) as determined by the court as part
of the judgment.
Section 6.9. Governing Law. This Acquisition Agreement and any dispute arising
hereunder shall be governed by and interpreted in accordance with the laws of the State.
Section 6.10. Usage of Words. As used herein, the singular of any word includes the
plural, and terms in the masculine gender shall include the feminine.
OHS West:260010699.5 27
Section 6.11. Counterparts. This Acquisition Agreement may be executed in
counterparts, each of which shall be deemed an original.
OHS West:260010699.5 Zc~
IN WITNESS WHEREOF, the parties hereto have executed this Acquisition
Agreement as of the day and year first hereinabove written.
CITY OF TUSTIN COMMUNITY
FACILITIES DISTRICT NO. 06-1
(TUSTIN LEGACY/COLUMBUS
VII,LAGES)
By:
Ronald A. Nault, Finance Director
CITY OF TUSTIN
By:
William A. Huston, City Manager
LENNAR HOMES OF CALIFORNIA,
INC.
By:
MOFFETT MEADOWS PARTNERS
LLC
By:
OHS West:260010699.5 29
EXHIBIT A
Segment
FACILITIES
Severyns Road from Valencia Avenue to end of public
street segment: Roadway improvements include curbs,
gutter, sidewalks on both sides of street, pavement,
signing and striping, and street lights.
Traffic Signal at Valencia Avenue/West Connector:
Improvements include furnishing and installing the
following components: Traffic signal controller, battery
backup unit, signal poles and mast arms, vehicle heads,
pedestrian heads, signal interconnect, traffic signal loop
detectors, and appurtenances per City Standards.
Total Acquisition Cost:
Acquisition Cost
$ 731,412
$ 183,087
914 499
oxs west:a6ooio699. s EXHIBIT A
-1 -
EXHIBIT B
FORM OF PAYMENT REQUEST
City of Tustin
Community Facilities District No. 06-1
(Tustin Legacy/Columbus Villages)
Lennar Homes of California, Inc. (the "Developer"), hereby requests payment of the
Purchase Price of the Segment or Segments described in Attachment A attached hereto.
Capitalized undefined terms shall have the meanings ascribed thereto in the Acquisition and
Funding Agreement, dated as of 1, 2007 (the "Acquisition Agreement'), by and
among the City of Tustin Community Facilities District No. 06-1 (Tustin Legacy/Columbus
Villages) (the "Community Facilities District'), the City of Tustin (the "City"), and the
Developer. In connection with this Payment Request, the undersigned hereby represents and
warrants to the Community Facilities District and the City as follows:
1. The undersigned is a Developer Representative, 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 City Engineer as-built
drawings or similar Plans and specifications for the Segments for which payment is requested,
and such drawings or plans and specifications, as applicable, are true, correct and complete.
3. Each of the Segments described in Attachment A 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 and
specifications referenced in paragraph 2 above.
4. The true and correct Actual Cost of each Segment for which payment is requested
is set forth in Attachment A.
6. The Developer has submitted or submits herewith to the City Engineer invoices,
receipts, worksheets and other evidence of costs which are in sufficient detail to allow the City
Engineer to verify the Actual Cost of each Segment for which payment is requested.
7. 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 requested
herein 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.
Copies of lien releases for all work for which payment is requested hereunder are attached
hereto.
8. No event listed in Section 5.2(a)(i)-(ix) of the Acquisition Agreement has
occurred and is continuing or will occur upon the making of any payment requested hereunder.
12. The representations and warranties of the Developer set forth in Section 4.1 of the
Acquisition Agreement are true and correct on and as of the date hereof with the same force and
oxs west:a6ooio699s EXHIBIT B
-1 -
effect as if made on and as of the date hereof (except that no certification is made with respect to
the representations and warranties contained in subsections (d) and (~ of said Section 4.1).
13. The Developer represents and warrants that, as of the date hereof, there is not
present on, under or in any Segment described in Attachment A or the Related Property of such
Segment, or any portion thereof, any Hazardous Materials, except for (i) any types 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 or (iv) any types or amounts that do not present a human health risk or hazard to the
public.
I hereby declare under penalty of perjury that the above representations and warranties
are true and correct.
Date:
LENNAR HOMES OF CALIFORNIA,
INC.
By:
OHS West:260010699. 5 - 2 -
APPROVAL BY THE CITY ENGINEER
The City Engineer has confirmed that each Segment described in Attachment A was
constructed in accordance with the Plans therefor and the Actual Cost of each Segment described
in Attachment A has been reviewed, verified and approved by the City Engineer. Payment of the
Purchase Price of each such Segment is hereby approved.
Date:
CITY ENGINEER OF THE CITY OF
TUSTIN
By:
OHS West:260010699. 5 - 3 -
ATTACHMENT A
Se..~ Acquisition Cost Actual Cost Purchase Price*
Total Purchase Price to be Paid:
*Lesser of Acquisition Cost or Actual Cost
OHS West:260010699. 5 - 4 -
RESOLUTION NO. 07-62
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF TUSTIN AUTHORIZING THE ISSUANCE OF NOT TO
EXCEED $60,000,000 AGGREGATE PRINCIPAL AMOUNT
OF CITY OF TUSTIN COMMUNITY FACILITIES
DISTRICT NO. 06-1 (TUSTIN LEGACY/COLUMBUS
VILLAGES) SPECIAL TAX BONDS, SERIES 2007 A,
APPROVING THE EXECUTION AND DELIVERY OF AN
INDENTURE, A BOND PURCHASE AGREEMENT AND A
CONTINUING DISCLOSURE AGREEMENT AND THE
PREPARATION OF AN OFFICIAL STATEMENT AND
OTHER MATTERS RELATED THERETO
WHEREAS, the City Council (the "City Council") of the City of Tustin (the "City") has
formed the City of Tustin Community Facilities District No. 06-1 (Tustin Legacy/Columbus
Villages) (the "Community Facilities District") under the provisions of the Mello-Roos
Community Facilities Act of 1982 (the "Act");
WHEREAS, the Community Facilities District is authorized under the Act to levy
special taxes (the "Special Taxes") to pay for the costs of certain public facilities (the
"Facilities") and to authorize the issuance of bonds payable from the Special Taxes;
WHEREAS, in order to provide funds to finance certain of the Facilities, the Community
Facilities District desires to provide for the issuance of City of Tustin Community Facilities
District No. 06-1 (Tustin Legacy/Columbus Villages) Special Tax Bonds, Series 2007 A (the
"Bonds"), in the aggregate principal amount of not to exceed $60,000,000;
WHEREAS, in order to provide for the authentication and delivery of the Bonds, to
establish and declare the terms and conditions upon which the Bonds are to be issued and
secured and to secure the payment of the principal thereof, premium, if any, and interest thereon,
the Community Facilities District proposes to enter into an Indenture with Union Bank of
California, N.A., as trustee (the "Trustee") (such Indenture, in the form presented to this meeting,
with such changes, insertions and omissions as are made pursuant to this Resolution, being
referred to herein as the "Indenture");
WHEREAS, Citigroup Global Markets Inc. (the "Representative") has presented the
Community Facilities District with a proposal, in the form of a Bond Purchase Agreement, to
purchase the Bonds from the Community Facilities District (such Bond Purchase Agreement, in
the form presented to this meeting, with such changes, insertions and omissions as are made
pursuant to this Resolution, being referred to herein as the "Purchase Agreement");
WHEREAS, Rule 15c2-12 promulgated under the Securities Exchange Act of 1934
("Rule 15c2-12") requires that, in order to be able to purchase or sell the Bonds, the underwriters
of the Bonds must have reasonably determined that the Community Facilities District or an
obligated person has undertaken in a written agreement or contract for the benefit of the holders
OHS WESr:260069572.2
of the Bonds to provide disclosure of certain financial and operating data and certain material
events on an ongoing basis;
WHEREAS, in order to assist in providing for the satisfaction of such requirement, the
Community Facilities District desires to enter into a Continuing Disclosure Agreement with the
Trustee (such Continuing Disclosure Agreement, in the form presented to this meeting, with such
changes, insertions and omissions as are made pursuant to this Resolution, being referred to
herein as the "Continuing Disclosure Agreement');
WHEREAS, a Preliminary Official Statement to be used in connection with the offering
and sale of the Bonds has been prepared (such Preliminary Official Statement in the form
presented to this meeting, with such changes, insertions and omissions as are made pursuant to
this Resolution, being referred to herein as the "Preliminary Official Statement');
WHEREAS, there have been prepared and submitted to this meeting forms o£
(a) the Indenture;
(b) the Purchase Agreement;
(c) the Continuing Disclosure Agreement; and
(d) the Preliminary Official Statement;
WHEREAS, the City Council desires to authorize the issuance of the Bonds and the
execution and delivery of such documents and the performance of such acts by or on behalf of
the Community Facilities District as may be necessary or desirable to effect the issuance of the
Bonds; and
NOW, THEREFORE, BE IT RESOLVED, by the City Council the City of Tustin, as
follows:
Section 1. Subject to the provisions of Section 2 hereof, the issuance of the Bonds, in an
aggregate principal amount of not to exceed $60,000,000, on the terms and conditions set forth
in, and subject to the limitations specified in, the Indenture, is hereby authorized and approved.
The Bonds shall be dated, shall bear interest at the rates, shall mature on the dates, shall be
subject to call and redemption, shall be issued in the form and shall be as otherwise provided in
the Indenture, as the same shall be completed as provided in this Resolution.
Section 2. The Indenture, in substantially the form submitted to this meeting and made a
part hereof as though set forth herein, be and the same is hereby approved. The Mayor of the
City, and such other members of the City Council as the Mayor may designate, the City Manager
of the City and the Finance Director of the City, and such other officers of the City as the City
Manager may designate (the "Authorized Officers of the Community Facilities District') are,
and each of them is, hereby authorized and directed, for and in the name of the Community
Facilities District, to execute and deliver the Indenture in the form submitted to this meeting,
with such changes, insertions and omissions as the Authorized Officer of the Community
Facilities District executing the same may require or approve, such requirement or approval to be
OHS WESr:260069572.2 2
conclusively evidenced by the execution of the Indenture by such Authorized Officer of the
Community Facilities District; provided, however, that such changes, insertions and omissions
shall not authorize an aggregate principal amount of Bonds in excess of $60,000,000, shall not
result in a final maturity date of the Bonds later than September 1, 2037 and shall not result in a
true interest cost for the Bonds in excess of 6.25%.
Section 3. The Purchase Agreement, in substantially the form submitted to this meeting
and made a part hereof as though set forth in full herein, be and the same is hereby approved.
The Authorized Officers of the Community Facilities District are, and each of them is, hereby
authorized and directed, for and in the name of the Community Facilities District, to execute and
deliver the Purchase Agreement in the form presented to this meeting, with such changes,
insertions and omissions as the Authorized Officer of the Community Facilities District
executing the same may require or approve, such requirement or approval to be conclusively
evidenced by the execution of the Purchase Agreement by such Authorized Officer of the
Community Facilities District; provided, however, that such changes, insertions and omissions
shall not result in an aggregate underwriter's discount (not including any original issue discount)
from the principal amount of the Bonds in excess of 1.5% of the aggregate principal amount of
the Bonds. The City Council hereby finds and determines that the sale of the Bonds at
negotiated sale as contemplated by the Purchase Agreement will result in a lower overall cost.
Section 4. The Continuing Disclosure Agreement, in substantially the form submitted to
this meeting and made a part hereof as though set forth in full herein, be and the same is hereby
approved. The Authorized Officers of the Community Facilities District are, and each of them
is, hereby authorized and directed, for and in the name of the Community Facilities District, to
execute and deliver the Continuing Disclosure Agreement in the form presented to this meeting,
with such changes, insertions and omissions as the Authorized Officer of the Community
Facilities District executing the same may require or approve, such requirement or approval to be
conclusively evidenced by the execution of the Continuing Disclosure Agreement by such
Authorized Officer of the Community Facilities District.
Section 5. The Preliminary Official Statement, in substantially the form presented to this
meeting and made a part hereof as though set forth in full herein, with such changes therein as
may be approved by an Authorized Officer of the Community Facilities District, be and the same
is hereby approved, and the use of the Preliminary Official Statement in connection with the
offering and sale of the Bonds is hereby authorized and approved. The Authorized Officers of
the Community Facilities District are, and each of them is, hereby authorized and directed, for
and in the name of the Community Facilities District, to certify to the Representative that the
Preliminary Official Statement has been "deemed final" for purposes of Rule 15c2-12.
Section 6. The preparation and delivery of a final Official Statement (the "Official
Statement"), and its use in connection with the offering and sale of the Bonds, be and the same is
hereby authorized and approved. The Official Statement shall be in substantially the form of the
Preliminary Official Statement with such changes, insertions and omissions as may be approved
by an Authorized Officer of the Community Facilities District, such approval to be conclusively
evidenced by the execution and delivery thereof. The Authorized Officers of the Community
Facilities District are, and each of them is, hereby authorized and directed to execute the final
OHS WESr:260069572.2 3
Official Statement and any amendment or supplement thereto, for and in the name of the
Community Facilities District.
Section 7. Pursuant to Section 53345.8 of the Act, the City Council hereby finds and
determines that the value of the real property that would be subject to the Special Tax to pay debt
service on the Bonds will be at least three times the principal amount of the Bonds to be sold and
the principal amount of all other bonds outstanding that are secured by a special tax levied
pursuant to the Act on property within the Community Facilities District or a special assessment
levied on property within the Community Facilities District.
Section 8. The Authorized Officers of the Community Facilities District and the officers
and employees of the Community Facilities District are, and each of them is, hereby authorized
and directed, for and in the name of the Community Facilities District, to do any and all things
and to execute and deliver any and all documents which they or any of them deem necessary or
advisable in order to consummate the transactions contemplated by this Resolution and otherwise
to carry out, give effect to and comply with the terms and intent of this Resolution.
The Authorized Officers of the City and the officers and employees of the City are, and
each of them is, hereby authorized and directed, for and in the name of the City, to do any and all
things and to execute and deliver any and all documents which they or any of them deem
necessary or advisable in order to consummate the execution and delivery by the City of the
Acquisition Agreement.
Section 9. All actions heretofore taken by the officers and employees of the City with
respect to the issuance of the Bonds, or in connection with or related to any of the agreements or
documents referred to herein, are hereby approved, confirmed and ratified.
Section 10. This Resolution shall take effect immediately upon its adoption.
APPROVED and ADOPTED by the City Council of the City of Tustin on August 7,
2007.
Mayor
ATTEST:
City Clerk
OHS WESr:260069572.2 4
CLERK'S CERTIFICATE
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
CITY OF TUSTIN )
I, Pamela Stoker, City Clerk of the City of Tustin, California hereby certify that the
foregoing is a full, true and correct copy of a Resolution duly adopted at a regular meeting of the
City Council of said City duly and regularly held at the regular meeting place thereof on August
7, 2007, of which meeting all of the members of said City Council had due notice and at which a
majority thereof were present; and that at said meeting said Resolution was adopted by the
following vote:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
An agenda of said meeting was posted at least 72 hours before said meeting at 300
Centennial Way, Tustin, California, a location freely accessible to members of the public, and a
brief general description of said Resolution appeared on said agenda.
I further certify that I have carefully compared the same with the original minutes of said
meeting on file and of record in my office; that the foregoing Resolution is a full, true and
correct copy of the original Resolution adopted at said meeting and entered in said minutes; and
that said Resolution has not been amended, modified or rescinded since the date of its adoption,
and the same is now in full force and effect.
Dated: , 2007
Pamela Stoker, City Clerk
OHS WESr:260069572.2
RESOLUTION NO. 07-64
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
TUSTIN AUTHORIZING THE EXECUTION AND DELIVERY
OF AN ACQUISITION AND FUNDING AGREEMENT
WHEREAS, the City Council (the "City Council") of the City of Tustin (the "City") has
initiated proceedings under the Mello-Roos Community Facilities Act of 1982 (the "Act") to establish
City of Tustin Community Facilities District No. 06-1 (Tustin Legacy/Columbus Villages) (the
"Community Facilities District'), to authorize the levy of special taxes (the "Special Taxes") upon the
land within the Community Facilities District and to issue bonds secured by such Special Taxes;
WHEREAS, the Community Facilities District is authorized under the Act to levy Special
Taxes to pay for the costs of certain public facilities (the "Facilities");
WHEREAS, Section 53313.5 of the Act provides that a community facilities district may only
finance the purchase of facilities whose construction has been completed, as determined by the
legislative body, before the resolution of formation to establish the community facilities district is
adopted pursuant to Section 53325.1 of the Act, except that a community facilities district may finance
the purchase of facilities completed after the adoption of the resolution of formation if the facility was
constructed as if it had been constructed under the direction and supervision, or under the authority of,
the local agency establishing the community facilities district; and
WHEREAS, Moffett Meadows Partners LLC (the "Landowner") has constructed certain of
the Facilities to be owned and operated by the City proposed to be financed by the Community
Facilities District pursuant to the Act, and the Community Facilities District proposes to purchase such
Facilities from the Landowner pursuant to an Acquisition and Funding Agreement and there has been
presented to this meeting a form of Acquisition and Funding Agreement by and among the City, the
Community Facilities District, the Landowner and Lennar Homes of California, Inc. (the "Acquisition
Agreement');
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Tustin as
follows:
Section 1. The Acquisition Agreement, in substantially the form submitted to this meeting and
made a part hereof as though set forth herein, be and the same is hereby approved. The Mayor of the
City, and such other member of the City Council as the Mayor may designate, the City Manager of the
City, the Finance Director of the City, and such other officer or employee of the City as the City
Manager may designate (the "Authorized Officers") are, and each of them is, hereby authorized and
directed, for and in the name of the City, to execute and deliver the Acquisition Agreement in the form
submitted to this meeting, with such changes, insertions and omissions as the Authorized Officer
executing the same may require or approve, such requirement or approval to be conclusively evidenced
by the execution of the Acquisition Agreement by such Authorized Officer.
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Section 2. The officers, employees and agents of the City are hereby authorized and directed
to take all actions and do all things which they, or any of them, may deem necessary or desirable to
accomplish the purposes of this Resolution and not inconsistent with the provisions hereof.
Section 3. This Resolution shall take effect immediately upon its adoption.
APPROVED and ADOPTED by the City Council of the City of Tustin on August 7, 2007.
Mayor
ATTEST:
Pamela Stoker, City Clerk
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CLERK'S CERTIFICATE
STATE OF CALIFORNIA
COUNTY OF ORANGE
CITY OF TUSTIN
I, Pamela Stoker, City Clerk of the City of Tustin, California hereby certify that the foregoing is
a full, true and correct copy of a Resolution duly adopted at a regular meeting of the City Council of
said City duly and regularly held at the regular meeting place thereof on August 7, 2007, of which
meeting all of the members of said City Council had due notice and at which a majority thereof were
present; and that at said meeting said Resolution was adopted by the following vote:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
An agenda of said meeting was posted at least 72 hours before said meeting at 300 Centennial
Way, Tustin, California, a location freely accessible to members of the public, and a brief general
description of said Resolution appeared on said agenda.
I further certify that I have carefully compared the same with the original minutes of said
meeting on file and of record in my office; that the foregoing Resolution is a full, true and correct copy
of the original Resolution adopted at said meeting and entered in said minutes; and that said resolution
has not been amended, modified or rescinded since the date of its adoption, and the same is now in full
force and effect.
Dated: 2007
Pamela Stoker, City Clerk
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