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HomeMy WebLinkAbout1986-513 -1 , SBE 080-l3/2051S/sm 12105/86 RESOLUTION NO. 86-513 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO, CALIFORNIA, APPROVING CERTAIN DOCUMENTS AND AUTHORIZING CERTAIN ACTIONS IN CONNECTION WITH THE AUTHORIZATION, SALE AND ISSUANCE OF APPROXIMATELY $8,600,000 PRINCIPAL AMOUNT OF MULTIFAMILY MORTGAGE REVENUE BONDS (MERCURY SAVINGS AND LOAN ASSOCIATION/SANDALWOOD PARK APARTMENTS PROJECT) WHEREAS, the City of San Bernardino, California (the "City"), is a "home rule city" duly organized and existing under and pursuant to a Charter adopted under the provisions of the Constitution of the State of California; and WHEREAS, pursuant to its home rule powers, the City duly and regularly enacted Ordinance No. 3815 (the .Ordinance") to ~ finance various types of projects, as defined in the Ordinance, and to issue its special revenue bonds for the purpose of enabling various developers to finance the cost of such projects, and has amended the same from time to time; and WHEREAS, said Ordinance No. 3815, as amended, is intended to finance the development of industry and commerce and to thereby broaden the employment opportunities and to increase the availability of moderately priced rental units for residents of the City and to broaden the tax and revenue base of the City without any liability whatsoever to the City; and - 1 - . I WHEREAS, the City is authorized and empowered by Health and Safety Code Section 52075, et ~. (the "Act"), to finance various types of projects, as defined in the Act, and to issue its special revenue bonds for the purpose of enabling various developers to finance the cost of such projects; and WHEREAS, Debkar Investment Company, a California corporation, or its predecessors, successors or assigns (the "Applicant"), has previously submitted a certain application (the "Application"), to the Mayor and Common Counci 1 of the City of San Bernardino, California (the "Mayor and Common Council"), for tax-exempt financing for a certain multifamily rental housing development pursuant to Ordinance No. 3815, as amended, and the Act, as more fully described in said Application (the "Project"); and WHEREAS, the Project consists of the construction and permanent financing of a two hundred sixteen (216) unit multifamily rental housing development on two adjacent parcels of land totalling approximately ten and one-half (10.5) acres located near the northwest corner of Baseline Street and Victoria Avenue in the City as more fully described in the Application; and WHEREAS, pursuant to Resolution No. 85-291 of the Mayor and Common Council, said Mayor and Common Council have on August 5, 1985, previously accepted the Application and declared their intent to issue multifamily mortgage revenue bonds in an aggregate - 2 - principal amount not to exceed $9,300,000 for the purpose of financing the Project (the "Inducement Resolution"); and WHEREAS, the Inducement Resolution was effective as "official action" pursuant to Section 103 of the Internal Revenue Code of 1954, as amended (the "Code") on or before September 25, 1985; and WHEREAS, pursuant to an appropriate Resolution adopted October 15, 1986, the Mayor and Common Council reinstated Resolution No. 85-291 and submitted an application to MBAC for a portion of the calendar year 1986 Private Activity Bond Limit of the State in an amount equal to Eight Million Six Hundred Thousand Dollars ($8,600,000); and WHEREAS, pursuant to an appropriate Resolution adopted December 8, 1986, the Mayor and Common Council has held a public hearing pursuant to Section 147(f) of the Internal Revenue Code of 1986 (the "Code") for the issuance and sale of multifamily mortgage revenue bonds by the City and the Mayor and Common Council has made the necessary findings and determinations required to be made in connection therewith and approved the Applicant's conveyance of its ownership interest in the Project to JMJ Properties, a California corporation owned solely by Joe Levesque, or its successors or assigns (the "Developer"); and - 3 - WHEREAS, a 11 acts, condi tions and things requi red by the Act, and by all other laws of the State of California, to exist, to have happened and to have been performed precedent to and in connection with the issuance of the aforesaid multifamily residential mortgage revenue bonds exist, have happened, and have been performed in regular and due time, form and manner as required by law, and the City is now duly authorized and empowered, pursuant to each and every requi rement of law, to issue such mult if amily residential mortgage revenue bonds for the purpose, in the manner and upon the terms herein provided; and WHEREAS, said multifamily mortgage revenue bonds are to be issued hereunder in an aggregate principal amount not to exceed $8,600,000 for the purpose, among others, of providing moneys to make mortgage loans pursuant to the Program and are to be designated as the "City of San Bernardino, California, Variable Rate Demand Multifamily Housing Revenue Bonds (Mercury Savings and Loan Association/Sandalwood Park Apartments Project) 1986 Series A" (the "Bonds"). NOW, THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO, CALIFORNIA, DO HEREBY FIND, RESOLVE, DETERMINE AND ORDER AS FOLLOWS: Section 1. true and correct. The above recitals, and each of them, are - 4 - Section 2. The Executive Director of the Redevelopment Agency of the City of San Bernardino, or such other person as the Mayor and Common Council may from time to time designate, is hereby designated to administer the Program as shall be undertaken by the Developer. Section 3. The form of the Indenture of Trust, dated as of December 1, 1986, by and between the City and any commercial banking institution qualified to act as trustee (the "Trustee"), securing the Bonds (the "Indenture"), as presented to the Ci ty at this meeting and on file with the City Clerk is hereby approved; and the Mayor and the City Clerk, or any other duly authorized officials, are hereby authorized and directed, for and in the name of the City, to execute such Indenture. Said Indenture shall be executed in substantially the form hereby approved, with such changes therein as the officers executing the same may approve prior to the issuance and delivery of the Bonds with the approval by the City Attorney and Bond Counsel of any changes, amendments or modifications, and such approval to be conclusively evidenced by the execution and delivery thereof. Section 4. The form of the Loan Origination and servicing Agreement dated as of December 1, 1985, by and among the City, Mercury Savings and Loan Association (the "Association"), the Trustee and the Developer (the "Loan Agreement"), as presented to the City at this meeting and on file with the City Clerk is hereby - 5 - approved; and the Mayor and the City Clerk, or any other duly authorized officials are hereby authorized and directed, for and in the name of the City, to execute the Loan and Servicing Agreement with the Developer, the Association and the Trustee. The Loan and Servicing Agreement shall be executed in substantially the form hereby approved, with such changes therein as the officers executing the same may approve with the approval thereof by the City Attorney and Bond Counsel, and such approval to be conclusively evidenced by the execution and delivery thereof. Section 5. The Preliminary Official Statement relating to the Bonds is hereby authorized and directed to be prepared by the purchase of the Bonds with such changes thereto as may be approved by the Executive Director of the Redevelopment Agency of the City of San Bernardino, the City Attorney and Bond Counsel; and the distribution of such Preliminary Official Statement is hereby authorized, and such Preliminary Official Statement may be converted to a Final Official Statement together with such changes or modifications as deemed desirable by Bond Counsel, the City Attorney and the Executive Director of the Redevelopment Agency of the City of San Bernardino. The Mayor or the Executive Director of the Redevelopment Agency of the City of San Bernardino, or any other duly authorized officials, are hereby authorized to execute and deliver said Final Official Statement, and the execution thereof shall be deemed to be final approval of same by the City. - 6 - Section 6. The form of the Regulatory Agreement and Declaration of Restrictive Covenants, dated as of December I, 1985, by and among the City, the Trustee, the Association and the Developer (the "Regulatory Agreement"), presented at this meeting and on file with the City Clerk is hereby approved, and the Mayor and the City Clerk, or any other duly authorized official, are hereby authorized and directed for and in the name and on behalf of the City to execute such Regulatory Agreement in said form with such changes therein as the officers executing the same may approve with the approval thereof by the City Attorney and Bond Counsel, and such approval to be conclusively evidenced by the execution thereof. Section 7. Pursuant to the Act, the Bonds shall be sold and issued as hereinafter provided in the aggregate principal amount not to exceed $8,600,000 as specified in the Bond Purchase Agreement hereinafter mentioned. The purposes for which the proceeds of the Bonds shall be expended are for the deposit of a portion or all of the Bond proceeds with the Trustee for the funding of the Project and for such other purposes as are set forth in the proposed form of the Indenture presented at this meeting and on file with the City Clerk. Section 8. The Mayor and Common Council hereby approve the appointment of such California commercial banking institution duly qualified to act as Trustee as may have submitted or as may hereafter submit the lowest responsible .bid for Trustee services in - 7 - accordance with the request for proposals as distributed by Bond Counsel. In the event that no such bid from a California institution is acceptable, or no such bid is received in a timely manner, in the opinion of Bond Counsel with the approval of the City Attorney, in accordance with the "Policy Guidelines on Public and Negotiated Bond Sale Procedures for the City of San Bernardino and the Redevelopment Agency of the City of San Bernardino" (the "Policy Guidelines") as said POlicy Guidelines are on file with the City Clerk, Seattle-First National Bank shall thereupon be the Trustee with no further notice required by the Mayor and Common Council. The City shall enter into such agreement with the Trustee in the manner as set forth above for the payment of fees which shall only be payable from amounts so available pursuant to the Indenture and not any other assets or funds of the City. Section 9. The form of the Bonds as set forth in the Indenture (as the Indenture may be modified as hereinbefore provided) is hereby approved. The Mayor and the City Clerk, or any other duly authorized official, are hereby authorized and directed to execute, in the name and on beha If of the Ci ty and under its seal, such Bonds in the aggregate not to exceed the principal amount set forth hereinabove in accordance with the Indenture. Section 10. The form of the Bond Purchase Agreement, which agreement shall be provided prior to time of purchase of the Bonds, and the sale of the Bonds pursuant thereto are hereby - 8 - approved, provided that the purchase price of the Bonds and the rate or rates of interest shall have been approved by the Mayor or the Executive Director of the Redevelopment Agency of the City of San Bernardino and, subject to such approval, the Mayor or the Executive Director of the Redevelopment Agency of the City of San Bernardino are hereby authorized and directed to evidence the City's acceptance of the offer made by said Bond Purchase Agreement by executing and delivering said Bond Purchase Agreement in said form with such changes therein as the officers executing the same and the City Attorney may approve, such approval to be conclusively evidenced by the execution and delivery thereof. Section 11. The Executive Director of the Redevelopment Agency of the City of San Bernardino or other City official are hereby authorized and directed to execute one or more requisitions authorizing the Trustee under the aforesaid Indenture to pay the Costs of Issuance for the Bonds from the Funds and Accounts established under and pursuant to the Indenture. Section 12. The Mayor of the City is hereby appointed as the elected official to approve the issuance of the Bonds pursuant to Code Section 147(f) at such time as the City shall have approved the other appropriate Bond financing documents. Section 13. The officers of the authorized and di rected, joint ly and severally, City are hereby to do any and all - 9 - things to execute and deliver any and all documents, including the Bonds, which they may deem necessary or advisable in order to consummate the issuance, sale and delivery of the Bonds, and otherwise to effectuate the purposes of this Resolution; and any such actions as previously taken by such officers in furtherance of the issuance and delivery of the Bonds are hereby ratified and confirmed. Section 14. The Developer shall provide appropriate covenants in the tax-exempt financing documents as may hereinafter be submitted to the City for consideration and approval in a form acceptable to the City Attorney and Bond Counsel and to assure that not less than twenty percent (20%) of the multifamily rental housing units included in the Project are to be occupied or reserved for occupancy by the individuals of low and moderate income as provided in the Code and that not less than ten percent (10%) of the multifamily rental housing units are to be occupied or reserved for . occupancy by individuals of very low income at the monthly rental ceilings as provided in the Act. Section 15. Prior to issuance of the Bonds pursuant to this Resolution, the Developer shall provide to the City, for recording, a covenant running with the land in form approved by the City Attorney or the City whereunder the Developer waives any entitlement under State law to a density bonus for the property on which the proposed Project is to be constructed. - 10 - Section 16. Adoption of this Resolution shall not be construed as approval of the plans or concept of the proposed development, nor as an indication that the Mayor and Common Council will hereafter take any particular action toward granting any planning, zoning, or other approval relating to a plan of development. The Mayor and Common Counci 1 reserves its right to evaluate any future administrative procedures and appeals based solely on the information available at the time of consideration, including any actions or recommendations by or appeals from the Development Review Committee and the Planning Commission. Nothing herein shall be construed as advance commitment or approval as to any such matter, and the Developer is hereby notified that normal planning processing shall be required, in accordance with the standa rd procedures of the Ci ty and that the Deve loper wi 11 be required to comply with all applicable laws and ordinances of the City, State and federal government. Section 17. The approval as herein granted and the final approval of the Project are specifically conditioned upon the conformance of all documents required to be executed and delivered by the City to the Policy Guidelines. Section 18. The above-mentioned documents necessary for the issuance, sale and delivery of the Bonds shall contain language especially intended for the full and complete protection of the City against liability from any covenants or agreements within the said - 11 - f Bond documents to assure that, in any event, the bondholders shall look only to the revenues pledged for the Bonds, and not to the revenues or general funds of the City unless specifically pledged in other than a conduit financing. For this purpose, Bond Counsel shall also include in all subsequent appropriate documents for the type of bond issue being considered, language substantially as follows: "Non-recourse paragraph: The Issuer's obligations hereunder and under the Loan Agreement and the Regulatory Agreement are on a 'non-recourse' basis, and payment of any amounts which are owed or may become due hereunder or under the Loan Agreement or Regulatory Agreement shall not be enforced against the Issuer or any of its public officials, officers, employees, agents, or other personnel, but only against the property which is subj ect to the Deed of Trust, and any fu rther security which may, from time to time, be hypothecated for this Indenture, the Regulatory Agreement or the Loan Agreement." "Exculpation of Issuer: The Issuer will not be liable to the company, to any bondholder, or to any other person for, and the company and the trustee, on behalf of the bondholders, hereby release the Issuer from all liability to the company, any bondholder, or any other person, for losses, costs, damages, expenses and liabilities even if such losses, costs, damages, expenses and liabilities directly or indirectly result from, arise out of or relate to, in whole or in part, one or more negligent acts or omissions of the Issuer or any of the officers, directors, employees, agents, servants or any other party acting for or on behalf of the Issuer in connection with the issuance of the bonds or performance by the Issuer of its obligations under the indenture, the loan agreement, the regulatory agreement, or any other agreement related to the indenture. The Issuer's obligations hereunder are on a 'non-recourse' - 12 - , basis, and payment of any amounts which are owed or may become due hereunder shall not be enforced against the Issuer or any of its public officials, officers, employees, agents, and other personnel, but only against the property which is subject to the Deed of Trust and any other further security which may, from time to time, be hypothecated hereunder." As appropriate, the language shall be changed if the security is something other than a deed of trust, and if the documents being utilized are other than a loan agreement and regulatory agreement. Notice of non-recourse and exculpation of the issuer provisions shall be prominently included in any official statement or other equivalent disclosure documents. Section 19. The language shall be subject to revision, as may be appropriate, depending upon the documents involved, the type of security offered, and other similar considerations, but in any event language substantially as specified herein shall be included in all appropriate Bond documents. In the event that Bond Counsel recommends against any such language, Bond Counsel sha 11 specifically advise the City that such language not be included with reasoning therefor. Unless such request is so made by Bond Counsel and approved by the City, such language shall be included in all appropriate Bond documents. - 13 - , -: Section 20. This Resolution shall take effect upon adoption. I HEREBY CERTIFY that the foregoing adopted by the Mayor and Common Counci 1 San Bernardino at an adiourned reolllar held on the 8th day of De""mher the following vote, to wit: resolution of the meeting was duly City of thereof, 1986, by AYES: Council Members Estrada, Reilly, Quiel, Frazier, Strickler NAYS: Council Member Hernandez ABSENT: Council Member Marks ~$t1/~ crly Clerk day of The foregoing resolution is December , 1986. approved this 9c-~ Approved as to form: A.~~~~ ,/VI' ity Attorney - 14 -