HomeMy WebLinkAbout2014-342 RESOLUTION NO. 2014-342
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2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF AMENDMENT
3 NUMBER 2 TO THE REGULATORY AGREEMENT AND DECLARATION OF
4 RESTRICTIVE COVENANTS IN PLACE AT "TUSCANY APARTMENTS"(2225
PUMALO STREET)
5
6 WHEREAS, the Issuer and U.S. Bank National Association, successor by merger to
7
U.S. Bank Trust National Association formerly known as First Trust of California, National
8
9 Association (the "Trustee") entered into that certain Indenture of Trust, dated as of May 1,
10 1996(the "Indenture"), in connection with the issuance of the Issuer's $7,000,000 Variable
11 Rate Demand Multifamily Housing Revenue Bonds (Silverwoods Apartments Project) Series
12 1996 (the "Bonds"); and
13
WHEREAS, the Issuer loaned the proceeds of the Bonds to Magellan Silverwoods
14
Partnership, an Arizona general partnership (the "Original Borrower"),pursuant to the original
15
16 Loan Agreement, dated as of May 1, 1996 (the "Loan Agreement"), among the Issuer, the
17 Trustee and the Original Borrower; and
18 WHEREAS, proceeds of the Bonds were used, in part, to construct and pay other
19 costs associated with the construction and development of a multi-family residential rental
20
housing project originally known as Silverwoods Apartments and now known as Tuscany
21
22 Apartments (the "Project") located in San Bernardino, California; and
23 WHEREAS, the Issuer, Original Borrower and Trustee entered into that certain
24 Regulatory Agreement and Declaration of Restrictive Covenants (the "Regulatory
25 Agreement") which was recorded against the Project in the records of the office of the San
26
Bernardino County Recorder as Instrument Number 19960251735 as a requirement to the
27
28 issuance of the Bonds; and
1
1 WHEREAS, the Project was sold to San Bernardino 328/AF XXX, LLC, a California
2 limited liability company in 2001, and San Bernardino 328/AF XXX, LLC caused the
3 delivery to the Trustee of a letter of credit providing credit support for the Bonds issued by
4 Wells Fargo Bank, National Association, to replace the existing letter of credit issued by Bank
5
One, Arizona,NA; and
6
WHEREAS, the Project was acquired by MG Tuscany Apartments LP in 2003, a
7
8 California limited partnership (the "Borrower") and the Borrower has caused the delivery to
9 the Trustee of a direct pay in transferable credit enhancement instrument (the "Credit
10 Facility") issued by FANNIE MAE, a corporation organized and existing under the Federal
11 National Mortgage Association Charter Act (12 USC Section 1716 et seq.) (the "Credit
12
Facility Provider") to replace the existing letter of credit issued by Bank One, Arizona,NA.
13
14 WHEREAS, the Project was acquired by Tuscany Holdings, LLC, a California limited
is liability company, 2006; and
16 WHEREAS,the Project was acquired by CF Aventerra, L.P., a California limited
17 partnership ("Owner") in 2007; and
18 WHEREAS, to preserve 66 affordable housing units, Owner has requested to amend
19
the Regulatory Agreement in place to allow for extension of the affordability covenants, and
20
21 WHEREAS, Owner intends to transfer the Project to CF Tuscany 2014, LP, which is
22 permitted under Section 7 of the Regulatory Agreement without an assignment and
23 assumption agreement by virtue of the fact that CF Tuscany 2014, LP will have 100%
24 identical ownership as Owner.
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1 NOW, THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY OF
2 SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS
FOLLOWS:
3
4 SECTION 1. That the City Manager is hereby authorized to execute Amendment
5 Number 2 to the Regulatory Agreement, a copy of which is attached hereto as Exhibit "A"
6 and incorporated by this reference.
7 SECTION 2. That the Regulatory Agreement in place at 2225 Pumalo Street (Tuscany
8 Apartments) be amended to provide the City's acknowledgement that CF Tuscany 2014, LP is
9
10 a permitted transferee of the Project.
11 SECTION 3. This Resolution shall take effect from and after its date of adoption by
12 the Mayor and Common Council.
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3
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF AMENDMENT
2 NUMBER 2 TO THE REGULATORY AGREEMENT AND DECLARATION OF
RESTRICTIVE COVENANTS IN PLACE AT "TUSCANY APARTMENTS"(2225
3 PUMALO STREET)
4
5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
6
and Common Council of the City of San Bernardino at a joint regular meeting thereof, held on
7
8 the 15th day of September, 2014, by the following vote, to wit:
9 Council Members: AYES NAYS ABSTAIN ABSENT
10 MARQUEZ X
11 BARRIOS X
12
13 VALDIVIA X
14 SHORETT X
15 NICKEL X
16 JOHNSON X
17 MULVIHILL X
18
19
20 eorge Hann_a qty Clerk
21 The foregoing resolution is hereby approved this /6 day of Septemb r, 2014.
22
23 R. Carey Day' , Mayor
24 City of San ernardino
25 Approved as to form:
26 Gary D. Saenz, City Attorney
27 � r
By: 4°.
28
4
2014-342
RECORDING REQUESTED BY )
AND WHEN RECORDED MAIL TO: )
)
City of San Bernardino )
300 N. "D" Street, Sixth Floor )
San Bernardino, CA 92418 )
Attention: City Attorney )
The document is exempt from the payment of
a recording fee pursuant to Government
Code§27383.
AMENDMENT NO. 2 TO THE REGULATORY AGREEMENT FOR THE TUSCANY
APARTMENTS LOCATED AT 2225 PUMALO STREET
This Amendment No. 2 to the Regulatory Agreement for the Tuscany Apartments located
at 2225 Pumalo Street is dated July 21, 2014 between the City of San Bernardino (the "City")
and C.F. Aventerra, L.P., a California limited partnership (the "Owner").
WITNESSETH:
WHEREAS, the Issuer and U.S. Bank National Association, successor by merger to U.S.
Bank Trust National Association formerly known as First Trust of California, National
Association (the "Trustee") entered into that certain Indenture of Trust, dated as of May 1,
1996(the "Indenture"), in connection with the issuance of the Issuer's $7,000,000 Variable Rate
Demand Multifamily Housing Revenue Bonds (Silverwoods Apartments Project) Series 1996
(the "Bonds"); and
WHEREAS, the Issuer loaned the proceeds of the Bonds to Magellan Silverwoods
Partnership, an Arizona general partnership (the "Original Borrower"), pursuant to the original
Loan Agreement, dated as of May 1, 1996 (the "Loan Agreement"), among the Issuer, 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 multi-family residential rental housing
project originally known as Silverwoods Apartments and now known as Tuscany Apartments
(the "Project") located in San Bernardino, California, and more particularly described in the legal
description attached hereto as Exhibit A; and
WHEREAS, the Issuer, Original Borrower and Trustee entered into that certain
Regulatory Agreement and Declaration of Restrictive Covenants (the "Regulatory Agreement")
which was recorded against the Project in the records of the office of the San Bernardino County
Recorder as Instrument Number 19960251735 as a requirement to the issuance of the Bonds; and
051022\6420865v2 1
2014-342
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, the Project was acquired by MG Tuscany Apartments LP in 2003, a
California limited partnership (the 'Borrower") and the Borrower caused the delivery to the
Trustee of a direct pay in transferable credit enhancement instrument (the "Credit Facility")
issued by FANNIE MAE, a corporation organized and existing under the Federal National
Mortgage Association Charter Act(12 USC Section 1716 et seq.) (the "Credit Facility Provider")
to replace the existing letter of credit issued by Bank One, Arizona,NA; and
WHEREAS, the Project was acquired by Tuscany Holding, LLC, a California limited
liability company, in 2006;
WHEREAS,the Project was acquired by Owner in 2007
WHEREAS, Owner intends to transfer the Project to CF Tuscany 2014, LP, which is
permitted under Section 7 of the Regulatory Agreement without an assignment and assumption
agreement by virtue of the fact that CF Tuscany 2014, LP will have 100% identical ownership as
Owner;
WHEREAS, to preserve 66 affordable housing units, Owner has requested to amend the
Regulatory Agreement in place to allow for extension of the affordability covenants.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Sections 2a and 2b are stricken from the agreement and replaced entirely with the
following new text:
"Section 2 Term of Restrictions and Agreement
a) Occupancy Restrictions. Occupancy Restrictions as defined and cited in Section 4
shall commence on August 1, 2014 and shall end on the date which is 15 years from
the commencement date.
b) Rental Restrictions. The term of the Rental Restrictions as defined and cited in
Section 5 shall commence and end according to the term of the Occupancy
Restrictions set forth in Section 2(a).
051022\6420865v2 2
2014-342
2. The City acknowledges and agrees that CF Tuscany 2014, LP, is a permitted
transferee of the Project.
IN WITNESS THEREOF,the parties hereto have caused this Amendment No. 2 to be
executed by and through their respective authorized officers, as of the date first above written.
City of San Bernardino
By: � r'
Allen J. arker, City Manager
APPROVED AS TO FORM:
Gary D. Saenz, City Attorney
B - t Owner
CF Aventerra, L.P.,
a California limited partnership
By: AOF/Pacific Aventerra, LLC,
a Delaware limited liability company
its Managing General Partner
By: AOF/Pacific Affordable Housing Corp.,
a California nonprofit public benefit corporation,
its Manager
By:
Raman Nayar, President
By: Aventerra Management, LLC
a Delaware limited liability company
its Co-General Partner
By:
Naty Saidoff, Manager
051022\6420865v2 3
2014-342
EXHIBIT A
Legal Description
[Attached]
051022\6420865v2 4
2014-342
STATE OF CALIFORNIA )
ss:
COUNTY OF <— '/Xvo ' )
On September , 2014 before me, rAlr%e, �4i •� ��
(insert name and title of the ficer),
personally appeared /�P/7 "-7, , who proved to me on the
basis of satisfactory evidence to be the person(owhose nameKis/axe-subscribed to the within
instrument and acknowledged to me that he/sh6theyexecuted the same in his/hefltheir
authorized capacity(ias'f, and that by his/hprfthefr signatureKon the instrument the personal, or
the entity upon behalf of which the person(O-acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
[Seal] VALERIE R. MONTOYA
Commission#t 1985357
Notary Public-California
San Bernardino County
My Comm. Expires Aug 2,2016
051022\6420865v2 5
2014-342
STATE OF CALIFORNIA )
ss:
COUNTY OF )
On September , 2014 before me,
(insert name and title of the officer),
personally appeared , who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
[Seal]
051022\6420865v2 6
2014-342
2. The City acknowledges and agrees that CF Tuscany 2014,LP,is a permitted
transferee of the Project.
IN WITNESS THEREOF,the parties hereto have caused this Amendment No. 2 to be
executed by and through their respective authorized officers, as of the date first above written.
City of San Bernardino
By:
Allen J. Parker, City Manager
APPROVED AS TO FORM:
Gary D. Saenz,City Attorney
By:
Owner
CF Aventerra, L.P.,
a California limited partnership
By: AOF/Pacific Aventerra,LLC,
a Delaware limited liability company
its Managing General Partner
By: AOF/Pacific Affordable Housing Corp.,
a California nonprofit public benefit corporation,
its Manager
By:
Raman Nayar,President
By: Aventerra Management, LLC
a Delaware limited liability, omp y
its Co-General Partn r
By: .�.9 l
Na Saidoff,Manager
051022\6420865v2 3
2014-342
STATE OF CALIFORNIA )
ss:
COUNTY OF ZV S �N V E IF S )
On.September ,2014 before me, 210 u{iq R`j
(insert name and title of the officer),
personally appeared pE i i4 NE L- S A1'n o F F ,who proved to me on the
basis of satisfactory evidence to be the person(, whose name( is/are subscribed to the within
instrument and acknowledged to me that he/slw/tom executed the same in his/her/t>wk
authorized capacity(ies), and that by his/her/their signature(.%'on the instrument the personjg),or
the entity upon behalf of which the person(p)acted,executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal. ZACHARY I SMITH
Commission#2016573 Z
Notary Public-California zz
Z . 11
unty
My Comm.Expires Mar 30,2017
Signature:
[Seal]
051022\6420865v2 5
2014-342
2. The City acknowledges and agrees that CF Tuscany 2014, LP, is a permitted
transferee of the Project.
IN WITNESS THEREOF,the parties hereto have caused this Amendment No. 2 to be
executed by and through their respective authorized officers, as of the date first above written.
City of San Bernardino
By:
Allen J. Parker, City Manager
APPROVED AS TO FORM:
Gary D. Saenz, City Attorney
By:
Owner
CF Aventerra, L.P.,
a California limited partnership
By: AOF/Pacific Aventerra, LLC,
a Delaware limited liability company
its Managing General Partner
By: AOF/Pacific Affordable Housing Corp.,
a California nonprofit public benefit corporation,
its Manager
By.
By: Aventerra Manage t, LLC
a Delaware limited liability company
its Co-General Partner
By:
Naty Saidoff, Manager
051022\6420865v2 3
2014-342
Acknowledgment in a Representative Capacity
State of Georgia
County of /emu �4,1n p
This record was acknowledged before me on
by A/ / Date
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(type of authority,such as attorney-inn--fact, officer,or tru tee)
of At F-1132 0 4,C IqttO�
(name of ISarty on behalf of whom record was executed)
who proved to me on the basis of satisfactory evidence to be the person(s)
who appeared before me.
Personally Known
or
Produced Identification
Type and#of ID(last a digits)
ID Expiration Date
(% � a_d z,4_1 �
Signature of notary public
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(Name of notary,typed, stamped or printed)
Notary Public State of Georgia Sta
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My commission expires: J0\�O�X8le kF,p•,'
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Acknowledgment in a Representative Capacity Ver A