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HomeMy WebLinkAboutCDC/2003-12 RESOLUTION NO. CDC/2003-12 2 3 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO (1) APPROVING THE SALE OF TUSCANY APARTMENTS ("PROJECT") TO MG TUSCANY APARTMENTS, L.P.; (2) APPROVING EXECUTION OF CERTAIN AMENDMENTS TO THE INDENTURE AND LOAN AGREEMENT RELATING TO $7,000,000 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO 1996 MULTI-FAMILY HOUSING REVENUE BONDS; (3) APPROVING EXECUTION OF AN ASSUMPTION AGREEMENT RELATED TO THE SALE OF THE PROJECT; (4) APPOINTING BOND COUNSEL IN CONNECTION WITH THE SALE OF THE PROJECT; AND (5) AUTHORIZING DISTRIBUTION OF A SUPPLEMENT TO THE PLACEMENT MEMORANDUM RELATING TO THE BONDS 4 5 6 7 8 9 10 11 WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency") is 12 authorized under Health and Safety Code Section 33000 et seq. to issue bonds to be used to make loans 13 to finance certain activities within the City of San Bernardino; and 14 WHEREAS, the Agency and U.S. Bank National Association, successor by merger to U.S. 15 Bank Trust National Association formerly known as First Trust of California, National Association (the 16 "Trustee") entered into that certain Indenture of Trust, dated as of May I, 1996 (the "Indenture"), in connection with the issuance of the Agency's $7,000,000 Variable Rate Demand Multifamily Housing Revenue Bonds (Silverwood Apartments Project) Series 1996 (the "Bonds"); and WHEREAS, the Agency loaned the proceeds of the Bonds to Magellan Silverwood Partnership, 17 18 19 20 an Arizona general partnership (the "Original Borrower"), pursuant to a Loan Agreement, dated as of 21 May 1,1996 (the "Loan Agreement"), among the Agency, the Trustee and the Original Borrower; and WHEREAS, proceeds of the Bonds were used, in part, to construct and pay other costs associated with the construction and development of a multifamily residential rental housing project 22 23 24 originally known as Silverwood Apartments and now known as Tuscany Apartments (the "Project") located in San Bernardino, California; and 25 -1- P:\Clerical Services Dept\Margaret Parker\Resolutions\2003\03-04-21 Tuscany Apartments CDC Reso.doc CDc/2003-12 2 WHEREAS, the Project was sold to San Bernardino 328/AF XXX, LLC, a California limited liability company in 2001, and San Bernardino 328/AF XXX, LLC caused the delivery to the Trustee of a letter of credit providing credit support for the Bonds issued by Wells Fargo Bank, National Association, to replace the existing letter of credit issued by Bank One, Arizona, NA; and WHEREAS, at that time the Indenture was amended by that certain First Supplemental Indenture dated as of September I, 2001; and WHEREAS, the Project will now be acquired by MG Tuscany Apartments L.P., a California 3 4 5 6 7 8 limited partnership (the "Borrower") and the Borrower will cause the delivery to the Trustee of a direct pay irrevocable transferable credit enhancement instrument (the "Credit Facility") issued by FANNIE 9 10 MAE (the "Fannie Mae") to replace the existing letter of credit issued by Wells Fargo, NA; and WHEREAS, in connection with the delivery of the Credit Facility, the Borrower and Fannie 11 12 Mae have requested certain amendments to the Indenture, Loan Agreement and Regulatory Agreement and Declaration of Restrictive Covenants dated as of May 1,1996 the forms of which amendments are 13 14 on file with the Secretary of the Agency; and WHEREAS, Newman & Associates, as prospective remarketing agent (the "Remarketing 15 16 Agent") has informed the Agency that it intends to remarket the Bonds and shall cause to be prepared a Second Supplement dated May 1, 2003 To Placement Memorandum dated May 20, 1996 (the 17 "Placement Memorandum") relating to such Bonds, as may be necessary in the sale and marketing of 18 the Bonds, the form of which Placement Memorandum is presently on file with the Secretary of the Agency; and WHEREAS, the Agency has considered the terms of the transaction as contemplated herein and 19 20 21 desires at this time to approve the terms of said transaction in the public interests of the Agency. 22 III 23 III III III 24 25 -2- P:\C1erlcal Services Dept\Margaret Parker\Resolutions\2003\03-04-21 Tuscany Apartments CDC Reso.doc CDC/2003-12 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF 2 THE CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND 3 ORDER, AS FOLLOWS: 4 Section 1. Approval of Second Supplemental Indenture. The Agency hereby 5 approves the form of Second Supplemental Indenture dated as of May 1, 2003 (the "Second 6 Supplemental Indenture") presently on file with the Secretary together with any nonsubstantive 7 changes therein or non substantive additions thereto as may be approved by the Chairman or 8 Executive Director, with the concurrence of the City Attorney, as necessary to incorporate 9 certain terms and conditions when such terms and conditions have been ascertained. The 10 Agency hereby further authorizes and directs that the form of Second Supplemental Indenture presently on file with the Secretary be prepared in final form thereof, together with such 11 12 non substantive changes or nonsubstantive modifications as so deemed necessary by the Chairman or Executive Director of the Agency, with the concurrence of City Attorney. The 13 Chairman, Vice-Chairman, Executive Director or such other authorized officer of the Agency is 14 hereby authorized and directed to execute and deliver, and the Secretary or Assistant Secretary 15 16 is hereby authorized and directed to attest to, the final form of the Second Supplemental Indenture when the same has been prepared and such execution and delivery shall be deemed to 17 be conclusive evidence of the approval thereof. 18 Section 2. Approval of Second Supplemental Loan Agreement. The Agency hereby 19 approves the form of Second Supplemental Loan Agreement dated as of May 1, 2003 (the 20 "Second Supplemental Loan Agreement") presently on file with the Secretary together with any 21 nonsubstantial changes therein or nonsubstantial additions thereto as may be approved by the 22 Chairman or Executive Director, with the concurrence of City Attorney, as necessary to 23 incorporate certain terms and conditions when such terms and conditions have been ascertained. 24 The Agency hereby further authorizes and directs that the form of Second Supplemental Loan Agreement presently on file with the Secretary be prepared in the final form thereof, together 25 -3- P;\C1erlcal Services Dept\.\1argllret Parker\Resolullons\2003\03-04-21 Tuscany Apartments CDC Reso.doc CDC/2003-12 with such nonsubstantive changes or non substantive modifications as so deemed necessary by 2 the Chairman or Executive Director of the Agency, with the concurrence of City Attorney. The Chairman, Vice-Chairman, Executive Director or such other authorized officer of the Agency is 3 4 hereby authorized and directed to execute and deliver, and the Secretary or Assistant Secretary 5 is hereby authorized and directed to attest to, the final form of the Second Supplemental Loan Agreement when the same has been prepared and such execution and delivery shall be deemed 6 7 to be conclusive evidence of the approval thereof. 8 Section 3. Approval of First Amendment to Regulatory Agreement. The Agency 9 hereby approves the form of First Amendment to Regulatory Agreement and Declaration of Restrictive Covenants dated as of May 1,2003 (the "Regulatory Amendment") presently on file 10 11 with the Secretary together with any nonsubstantive changes therein or nonsubstantive additions 12 thereto as may be approved by the Chairman or Executive Director, with the concurrence of the City Attorney, as necessary to incorporate certain terms and conditions when such terms and 13 14 conditions have been ascertained. The Agency hereby further authorizes and directs that the form of Regulatory Amendment presently on file with the Secretary be prepared into the final 15 form thereof, together with such nonsubstantive changes or nonsubstantive modifications as so 16 deemed necessary by the Chairman or Executive Director of the Agency, with the concurrence 17 of City Attorney. The Chairman, Vice-Chairman, Executive Director or such other authorized officer of the Agency is hereby authorized and directed to execute and deliver, and the Secretary or Assistant Secretary is hereby authorized and directed to attest to, the final form of the 18 19 20 Regulatory Amendment when the same has been prepared and such execution and delivery shall be deemed to be conclusive evidence of the approval thereof. 21 22 Section 4. Approval of Intercreditor Agreement and Assumption Agreement, 23 Amended and Restated Note. The Agency hereby approves the form of Intercreditor 24 Agreement between the Agency, Trustee, Fannie Mae, and the Borrower, Assumption 25 Agreement between the Borrower and the Agency, Amended and Restated Multifamily Note -4- P:\ClericaJ Services Dept\Margaret Parker\Resolutions\2003\03.04.21 Tuscany Apartments CDC Reso.doc CDC/2003-12 executed by Borrower to the Agency each dated as of May I, 2003 (the "Credit and Assumption 2 Documents") presently on file with the Secretary together with any nonsubstantive changes 3 therein or nonsubstantive additions thereto as may be approved by the Chairman or Executive 4 Director, with the concurrence of the City Attorney, as necessary to incorporate certain terms 5 and conditions when such terms and conditions have been ascertained. The Agency hereby 6 further authorizes and directs that the form of Credit and Assumption Documents presently on 7 file with the Secretary be prepared into the final form thereof, together with such nonsubstantive 8 changes or nonsubstantive modifications as so deemed necessary by the Chairman or Executive 9 Director of the Agency, with the concurrence of City Attorney. The Chairman, Vice-Chairman, 10 Executive Director or such other authorized officer of the Agency is hereby authorized and directed to execute and deliver, and the Secretary or Assistant Secretary is hereby authorized 11 and directed to attest to, the final form of the Credit and Assumption Documents when the same 12 has been prepared and such execution and delivery shall be deemed to be conclusive evidence 13 of the approval thereof. 14 Section 5. Sale of the Project and Remarketing of the Bonds. The Agency hereby 15 16 approves the sale of the Project to MG Tuscany Apartments L.P., a California limited partnership. The Agency hereby approves the remarketing of the Bonds by the Remarketing Agent, pursuant to that certain Second Supplement to Placement Memorandum dated as of May 17 18 I, 2003 on file with the Agency. 19 Section 6. Official Action. The Chairman, Executive Director, Secretary, City 20 Attorney and any and all other officers of the Agency are hereby authorized and directed, for and in the name and on behalf of the Agency, to do any and all things and take any and all 21 22 actions, including execution and delivery of any and all assignments, certificates, requisitions, 23 agreements, notices, consents, instruments of conveyance, warrants and other documents, which 24 they, or any of them, may deem necessary or advisable in order to consummate the transaction 25 contemplated herein. Whenever in this Resolution any officer of the Agency is authorized to -5- P:\Clerical Services Dept\Margaret Parker\Resolutlons\2003\03-04-2t Tuscany Apartments CDC Reso.doc CDC/2003-12 execute or countersign any document or take any action, such execution, countersigning or action may be taken on behalf of such officer by any person designated by such officer to act on his or her behalf in the case such officer shall be absent or unavailable. The Agency hereby appoints its Chairman and Executive Director as agents of the Agency for purposes of executing 2 3 4 5 any and all documents and instruments which any officer of the Agency is authorized to execute 6 hereunder. 7 Section 7. In September 2001, in order to facilitate the sale of the Project to the 8 present Owner, 3281 AF XXX, LLC, Lewis Brisbois Bisgaard & Smith LLP was retained by the Agency to act in the capacity of bond counsel. Due to this prior experience, familiarity and background in the Project, the Agency hereby appoints Lewis Brisbois Bisgaard & Smith LLP as bond counsel for the Agency. ' The Resoiution shall become effective immediately upon its adoption. 9 10 11 Section 8. 12 III 13 III 14 III 15 III 16 III 17 III 18 III 19 III 20 III 21 III 22 III 23 III 24 III 25 //1 -6- P:\Clerical Services Dept\Margaa-el Parker\Resolutlons\2003\03-04-21 Tuscany Apartments CDC Reso.doc CDC/2003-12 2 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO (1) APPROVING THE SALE OF TUSCANY APARTMENTS ("PROJECT") TO MG TUSCANY APARTMENTS, L.P.; (2) APPROVING EXECUTION OF CERTAIN AMENDMENTS TO THE INDENTURE AND LOAN AGREEMENT RELATING TO $7,000,000 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO 1996 MULTI-FAMILY HOUSING REVENUE BONDS; (3) APPROVING EXECUTION OF AN ASSUMPTION AGREEMENT RELATED TO THE SALE OF THE PROJECT; (4) APPOINTING BOND COUNSEL IN CONNECTION WITH THE SALE OF THE PROJECT; AND (5) AUTHORIZING DISTRIBUTION OF A SUPPLEMENT TO THE PLACEMENT MEMORANDUM RELATING TO THE BONDS 3 4 5 6 7 8 9 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the 10 Community Development Commission of the City of San Bernardino at a j t. reg. meeting thereof, held on the 21st day of April 11 Commission Members: Ayes Nays 12 ESTRADA x LONGVILLE x 13 MCGINNIS -X- DERRY --x- 14 SUAREZ x 15 ANDERSON x MC CAMMACK .lL- 16 17 18 ,2003, by the following vote to wit: Abstain Absent . ;zZ.. ~ ~-A' ;:/ Secreta 19 The foregoing resolution is hereby approved this ;:J '/TIJ day of April ,2003. 25 20 21 22 23 By: 24 -7- P:\C1erical Services Dept\Margaret Parker\Resolutions\2003\03-04-21 Tuscany Apartments CDC Reso.doc