HomeMy WebLinkAbout2016-082 1 RESOLUTION NO. 2016-82
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3 RESOLUTION OF THE MAYOR AND COMMON COUNCIL ACTING AS THE
SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF
4 SAN BERNARDINO AUTHORIZING THE CONSENT TO SUBORDINATE ITS TAX
5 REGULATORY AGREEMENT TO THE LOAN OF THE DEPARTMENT OF
HOUSING AND URBAN DEVELOPMENT IN CONNECTION WITH THE
6 REFINANCING OF THE HUD LOAN ON THE SEQUOIA MOBILE HOME PARK
AND SUCH ACTIONS AS ARE NECESSARY TO ACCOMPLISH THE FOREGOING.
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8 WHEREAS, on January 9, 2012, the Mayor and Common Council of the City of
9 San Bernardino ("Council") adopted Resolution No. 2012-12 confirming that the City of San
Bernardino would be the Successor Agency to the Redevelopment Agency of the City of San
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Bernardino ("Successor Agency") effective February 1, 2012, pursuant to AB1X 26 (The
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Redevelopment Agency Dissolution Act); and
12 WHEREAS, on January 23, 2012, the Council adopted Resolution No. 2012-1
13 providing for the City to become the Housing Successor and to perform housing function
14 previously performed by the Agency; and
15 WHEREAS, pursuant to Health & Safety Code Section 34181(c) of AB1X 26 the
16 Oversight Board is to direct the transfer of housing responsibilities, including all rights, powers,
17 duties, obligations and assets, to the Housing Successor; and
18 WHEREAS, the former Redevelopment Agency ("Agency") acquired the Sequoia
19 Mobile Home Park (Park) with funds loaned to the Agency from the proceeds of the San
20 Bernardino Joint Powers Financing Authority's mortgage revenue bonds (1995 Bonds) issued
21 for the Park in 1995; and
22 WHEREAS, the purchase of the Park by the Agency was to further low and moderate
23 income housing within the City of San Bernardino; and,
24 WHEREAS, prior to the purchase of the Park, the Agency expended Agency funds on
25 behalf of the mobile home park conversion program, without any formal intent or
26 documentation to provide for any reimbursement or recoupment of such expended funds, for (i)
27 the initial analysis of the Park, (ii) due diligence investigation, engineering and financial
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I analysis for the converted Park, (iii) administrative and consultant expenses to implement the
2 program, and (iv) payment of the Park conversion consultant fees and expenses; and
3 WHEREAS, in May, 1996, the Agency caused the formation of the California Mobile
4 Home Park Corporation, formerly The San Bernardino Mobilehome Park Corporation
5 (Corporation) and eight subsidiaries thereof representing each of the parks it purchased through
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the conversion program; and
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WHEREAS, the sole purpose of the Corporation and its subsidiaries is to provide low
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income housing to the residents within the City of San Bernardino and other cities within the
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State of California; and
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WHEREAS, the Agency transferred its ownership interest in the Park to the Sequoia
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Mobile Home Park Corporation; and
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WHEREAS, in an attempt to recoup a portion of its expenditures incurred prior to the
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purchase of the Parks, the Agency required the Corporation to execute a note and deed of trust
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(the "Park Reimbursement Obligation") securing the Park Reimbursement Obligations for the
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16 benefit of the Agency; and
17 WHEREAS, in 1999, control of the Corporation and its subsidiaries was transferred to
is
an independent non-profit board of directors to alleviate the further costs and time associated
19 with Agency administration of the Corporation; and
20 WHEREAS, in connection with the issuance by the County of San Bernardino Housing
21 Authority ("County Housing Authority") of its $27,195,000 mortgage revenue notes (the "1999
22 Notes"), the Agency reconveyed the deeds of trust upon receipt of a new deed of trust securing
23 the Park Reimbursement Obligations; and
24 WHEREAS, the County Housing Authority assisted the Corporation with refinancing a
25 portion of the 1999 Notes and pursuant to that transaction, the County Housing Authority issued
26 GNMA Collateralized Bonds ("Refunding Bonds") for the Park; and
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1 WHEREAS, the Corporation applied a portion of the proceeds of the Refunding Bonds
2 to pay the Park Reimbursement Obligations in full upon the issuance of each series of the
3 Refunding Bonds; and
4 WHEREAS, the purpose of the expenditures made by the Agency prior to the transfer
5 of the Park to the Corporation has been satisfied, as the Park has been acquired, partially
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rehabilitated, and transferred to a non-profit corporation which is organized to ensure the Park is
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reserved for low-and moderate-income tenants; and
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WHEREAS, the Agency then loaned funds to the Corporation pursuant to the 2001
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Loan Agreement and 2001 Note evidencing such obligation; and
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WHEREAS, the Agency entered into a Subordinate Tax Regulatory Agreement dated
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March 1, 2001, recorded in the records of the County Recorder for the County of San
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Bernardino on July 9, 2002, as Instrument Number 2002-0352535; to restrict certain units in the
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Park to low- and moderate-income tenants as long as such Regulatory Agreement does not
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violate any provision of the FHA documents which are recorded against the Park in connection
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with the issuance of the Bonds; and
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17 WHEREAS, the Corporation has informed the Successor Agency that they desire to
refinance the HUD Loan and have requested that the Successor Agency agree to subordinate the
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Series B Tax Regulatory Agreement in order for the new HUD loan to remain a senior lien on
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the Park; and
20 WHEREAS, the Corporation has represented to the Successor Agency that; 1) the
21 refinancing of the HUD loan by the Sequoia Mobile Home park Corporation will result in
22 lower interest rate; and 2) the Corporations will take no money out of the refinancing other than
23 for the payment of the reasonable refinancing costs; and
24 WHEREAS, the Successor Agency has duly considered the terms of such transactions as
25 contemplated herein and desire to consent to the subordination of the Series B Tax Regulator
26 Agreement subject to review of the new HUD loan documents by Successor Agency staff an
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legal counsel; and payment of any Successor Agency costs associated with the subordination an
any outstanding Successor Agency fees.
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1 NOW,THEREFORE,BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL
2 OF THE CITY OF SAN BERNARDINO ACTING AS THE SUCCESSOR AGENCY TO THE
3 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO,AS FOLLOWS:
4 Section 1. Pursuant to Health &Safety Code Section 34176, the Successor Agency to
5 the Redevelopment Agency of the City of San Bernardino does hereby consent and agree to
6 subordinate its Series B Tax Regulatory Agreement to the new respective HUD loan, subject to
7 and conditioned upon the review and satisfaction of Successor Agency staff and legal counsel
8 and hereby authorizes the City Manager or his/her designee, to execute the Subordination
9 Agreement (attached and incorporated herein as Exhibit "A") and cause it to be recorded with
10 the San Bernardino County Recorder.
11 Section 2. The City Manager, or any other officer or employee of the Successor
12 Agency designated by the City Manager, is hereby authorized to do all such acts and thing
13 necessary to accomplish the subordination of the Series B Tax Regulatory Agreement to the new
14 HUD Loan
15 Section 3. This Resolution shall take effect upon the date of its passage and adoption.
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1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL ACTING AS THE
SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF
2 SAN BERNARDINO AUTHORIZING THE CONSENT TO SUBORDINATE ITS TAX
3 REGULATORY AGREEMENT TO THE LOAN OF THE DEPARTMENT OF
HOUSING AND URBAN DEVELOPMENT IN CONNECTION WITH THE
4 REFINANCING OF THE HUD LOAN ON THE SEQUOIA MOBILE HOME PARK
AND SUCH ACTIONS AS ARE NECESSARY TO ACCOMPLISH THE FOREGOING.
5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the
6 Mayor and Common Council Acting as the Successor Agency to the Redevelopment Agency of
7 the City of San Bernardino at a joint regular meeting thereof, held on the 18th day of April,
8 2016, by the following vote to wit:
9 Commission Members: Ayes Nays Abstain Absent
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MARQUEZ X
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BARRIOS X
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VALDIVIA X
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SHORETT X
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NICKEL X
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RICHARD x-
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MULVIHILL X
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19 GeorgeardHanna, C C, City Clerk
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20 The foregoing resolution is hereby approved this day of April, 2016.
21 �'(22
R. Carey Dav' , Mayor
23 City of San Idernardino
24 Approved as to form:
Gary D. Saenz, City Attorney
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26 By:
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2016-82
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RECORDING REQUESTED BY
Michael Decina
Kantor Taylor Nelson Evatt& Decina PC
901 Fifth Ave, Suite 4000
Seattle, WA 98164
WHEN RECORDED RETURN TO:
Attention:
FIRST AMENDMENT TO AGENCY SUBORDINATE TAX REGULATORY AGREEMENT
(Sequoia)
THIS FIRST AMENDMENT TO AGENCY SUBORDINATE TAX
REGULATORY AGREEMENT (this "Amendment"), amending that certain Agency
Subordinate Tax Regulatory Agreement dated as of March 1, 2001, and recorded on July 9,
2002, as Document No. 20020352535, in the Official Records of San Bernardino County (the
"Regulatory Agreement"), relating to a multifamily rental housing project located on the real
property described in Exhibit A hereto (the "Project"), is made and entered into as of December
1, 2015, by and among the THE CITY OF SAN BERNARDINO, acting as the SUCCESSOR
AGENCY to The Redevelopment Agency of the City of San Bernardino pursuant to California
Health and Safety Code Section 34176 (the "Agency") and THE SAN BERNARDINO
MOBILEHOME PARK CORPORATION, a California nonprofit public benefit corporation (the
"Company").
WITNESSETH:
WHEREAS, the Agency previously loaned low and moderate-income housing
funds of the Agency to the Company pursuant to that certain Agency 2001 Loan Agreement
dated as of March 1, 2001, between the Agency and the Company and that certain 2001 Note
evidencing such obligation (the "Agency Financing");
WHEREAS, Agency Company entered into the Regulatory Agreement as a
condition of the Agency Financing and in order to impose certain restrictions on the Company's
use of the Project;
WHEREAS, the Agency Financing has since been repaid and is no longer
outstanding, Agency and Company now wish to execute and deliver this Amendment in
connection with the refinancing of the Project with proceeds of a loan made to Company by
Dwight Capital, LLC, a New York limited liability company;
NOW, THEREFORE, the parties hereto hereby agree as follows:
First Amendment to Agency Subordinate Tax Regulatory Agreement-Sequoia
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Section 1. Definitions. Unless otherwise defined, capitalized terms used
herein shall have the meanings assigned to them in the Regulatory Agreement.
Section 2. Addition of Section 21. The Regulatory Agreement is hereby
amended to add a new Section 21, as provided in Exhibit B attached to this Amendment:
"Section 21. HUD Refinance Requirements. The HUD Rider to Restrictive
Covenants, attached hereto as Exhibit D, is incorporated by reference into the Regulatory
Agreement for such time as the Project is subject to a mortgage, deed of trust or security
instrument insured or held by the Secretary of Housing and Urban Development
("HUD"), or its successors or assigns."
Section 3. Reaffirmation of Regulatory Agreement. Agency and Company
each hereby reaffirm each of the provisions of the Regulatory Agreement and confirms that the
Regulatory Agreement, as amended, and each of the terms and provisions thereof shall remain in
full force and effect for the term thereof.
Section 4. Execution of Counterparts. This Amendment 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.
[Signatures on following pages]
First Amendment to Agency Subordinate Tax Regulatory Agreement- Sequoia
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IN WITNESS WHEREOF, Agency and Company have executed this First
Amendment to Agency Subordinate Tax Regulatory Agreement by duly authorized
representatives, all as of the date first above written.
AGENCY:
CITY OF SAN BERNARDINO ACTING AS
THE SUCCESSOR AGENCY TO THE
REDEVELOPMENT AGENCY OF THE CITY
OF SAN BERNARDINO
By:
Name: Mark Scott
Title: City Manager
[acknowledgment on following page]
First Amendment to Agency Subordinate Tax Regulatory Agreement-Sequoia
2016-82
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[Agency acknowledgement page]
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which
this certificate is attached, and not the
truthfulness,accuracy, or validity of that
document.
STATE OF CALIFORNIA )
ss:
COUNTY OF )
On , 20 before me,
personally appeared , who proved to me on the
basis of satisfactory evidence to be the person whose name is subscribed to the within instrument
and acknowledged to me that he/she executed the same in his/her authorized capacity, and that
by his/her signature on the instrument the person, or the entity upon behalf of which the person
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:
First Amendment to Agency Subordinate Tax Regulatory Agreement-Sequoia
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[Company Signature Page to First Amendment to Agency Subordinate Tax Regulatory
Agreement.]
COMPANY:
THE SAN BERNARDINO MOBILEHOME
PARK CORPORATION, a California
nonprofit public benefit corporation
By:
Name:
Title:
[acknowledgment on following pages]
First Amendment to Agency Subordinate Tax Regulatory Agreement-Sequoia
2016-82
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[Company acknowledgement page]
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which
this certificate is attached, and not the
truthfulness,accuracy, or validity of that
document.
STATE OF CALIFORNIA )
ss:
COUNTY OF )
On , 20_, before me,
personally appeared , who proved to me on the basis of satisfactory
evidence to be the person whose name is subscribed to the within instrument and acknowledged
to me that she executed the same in her authorized capacity, and that by her signature on the
instrument the person, or the entity upon behalf of which the person 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]
First Amendment to Agency Subordinate Tax Regulatory Agreement-Sequoia
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EXHIBIT A
Description of Real Property
That portion of Government Lot 1, and the Northeast quarter of the Northwest quarter of Section
7, Township 1 South, Range 4 West, San Bernardino Meridian, in the City of San Bernardino,
County of San Bernardino, State of California, according to the Official Plat thereof, described
as follows:
Beginning at a 3/8" iron pin marking the intersection of the center line of Foothill Boulevard
with the center line of Meridian Avenue, being also the Northwest corner of Lot 1; thence North
89° 38' 40" East, along said centerline of Foothill Boulevard, 2,254.13 feet to a point in a line
that is concentric with and distant 100.00 feet Westerly, measured radially, from the center line
of Southern Pacific Transportation Company's Main Track (Palmdale to Colton), last said point
being South 89° 38' 40" West, measured along said center line of Foothill Boulevard, 386.27 feet
from a 1/2" iron pin marking the North quarter corner of said Section 7; thence Southwesterly
along said concentric line along a curve to the left having a radius of 1,532.47 feet (tangent to
said curve at last mentioned point bears South 17° 11' 30" West) through a central angle of 2° 20'
17", an arc distance of 62.45 feet; thence South 14° 51' 13" West, tangent to last said curve,
132.04 feet; thence South 7° 20' 19" West, 476.87 feet to a point in a line that is parallel with and
distant 660.00 feet Southerly, measured along said center line of Meridian Avenue, from said
center line of Foothill Boulevard, last said point being distant 100.00 feet Westerly, measured at
right angles, from said center line of Main Track; thence South 89° 38' 40" West, along said last
parallel line and its Westerly prolongation 2,143.07 feet to said center line of Meridian Avenue;
thence North 0° 05' 00" East, along last said center line 660.00 feet to the point of beginning.
Except that portion of said property lying below a depth of 500.00 feet measured vertically from
the contour of the surface thereof; provided, however, that said grantor, its successors and
assigns, shall not have the right for any and all purposes to enter upon, into or through the
surface or the portion of said property lying above 500.00 feet, measured vertically from the
contour of the surface of said property as excepted in the deed from Golden Empire Investment
Corporation, recorded January 21, 1972 in Book 7841 Page 550, Official Records.
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EXHIBIT B
HUD Rider to Restrictive Covenants
"EXHIBIT D
HUD RIDER TO RESTRICTIVE COVENANTS
This Rider to Restrictive Covenants is made as of December 1, 2015, by by and among
the THE CITY OF SAN BERNARDINO, acting as the HOUSING SUCCESSOR AGENCY to
The Redevelopment Agency of the City of San Bernardino pursuant to California Health and
Safety Code Section 34176 (the "Agency") and THE SAN BERNARDINO MOBILEHOME
PARK CORPORATION, a California nonprofit public benefit corporation (the "Company").
WHEREAS, Company has obtained financing from Dwight Capital, LLC, a New York
limited liability company (the "Lender") for the benefit of the project known as Sequoia
Mobilehome Park (the "Project"), which loan is secured by a Multifamily Deed of Trust,
Assignment of Rents, and Security Agreement ("Security Instrument") dated as of December 1,
2015, and recorded in the Recorder's Office of San Bernardino County, California (the
"Records") contemporaneously herewith, and is insured by the United States Department of
Housing and Urban Development ("HUD");
Whereas Company entered into that certain Agency Subordinate Tax Regulatory
Agreement ("Restrictive Covenants") with respect to the Project, dated March 1, 2001, and
recorded on July 9, 2002, as Document No. 20020352535, in the Records;
WHEREAS, HUD requires as a condition of its insuring Lender's financing to the
Project, that the lien and covenants of the Restrictive Covenants be subordinated to the lien,
covenants, and enforcement of the Security Instrument; and
WHEREAS, Agency has agreed to subordinate the Restrictive Covenants to the lien of
the Mortgage Loan in accordance with the terms of this Rider.
NOW, THEREFORE, in consideration of the foregoing and for other consideration the
receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
(a) In the event of any conflict between any provision contained elsewhere in the
Restrictive Covenants and any provision contained in this Rider, the provision contained in
this Rider shall govern and be controlling in all respects as set forth more fully herein.
(b) The following terms shall have the following definitions:
"Code" means the Internal Revenue Code of 1986, as amended.
"HUD" means the United States Department of Housing and Urban Development.
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"HUD Regulatory Agreement" means the Regulatory Agreement between
Company and HUD with respect to the Project dated December 1, 2015, as the
same may be supplemented, amended or modified from time to time.
"Lender" means Dwight Capital, LLC, a New York limited liability company, its
successors and assigns.
"Mortgage Loan" means the mortgage loan made by Lender to Company pursuant
to the Mortgage Loan Documents with respect to the Project.
"Mortgage Loan Documents" means the Security Instrument, the HUD
Regulatory Agreement and all other documents required by HUD or Lender in
connection with the Mortgage Loan.
"National Housing Act" means the National Housing Act of 1934, as amended.
"Program Obligations"has the meaning set forth in the Security Instrument.
"Residual Receipts" has the meaning specified in the HUD Regulatory
Agreement.
"Security Instrument" means the mortgage or deed of trust from Company in
favor of Lender, as the same may be supplemented, amended or modified.
"Surplus Cash" has the meaning specified in the HUD Regulatory Agreement.
(c) Notwithstanding anything in the Restrictive Covenants to the contrary, the
provisions hereof are expressly subordinate to (i) the Mortgage Loan Documents, including
without limitation, the Security Instrument, and (ii) Program Obligations (the Mortgage Loan
Documents and Program Obligations are collectively referred to herein as the "HUD
Requirements"). Company covenants that it will not take or permit any action that would result
in a violation of the Code, HUD Requirements or Restrictive Covenants. In the event of any
conflict between the provisions of the Restrictive Covenants and the provisions of the HUD
Requirements, HUD shall be and remains entitled to enforce the HUD Requirements.
Notwithstanding the foregoing, nothing herein limits Agency's ability to enforce the terms of the
Restrictive Covenants, provided such terms do not conflict with statutory provisions of the
National Housing Act or the regulations related thereto. Company represents and warrants that to
the best of Company's knowledge the Restrictive Covenants impose no terms or requirements
that conflict with the National Housing Act and related regulations.
(d) In the event of foreclosure (or deed in lieu of foreclosure), the Restrictive
Covenants (including without limitation, any and all land use covenants and/or restrictions
contained herein) shall automatically terminate.
(e) Company and Agency acknowledge that Company's failure to comply with the
covenants provided in the Restrictive Covenants does not and shall not serve as a basis for
default under the HUD Requirements, unless a default also arises under the HUD Requirements.
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(f) Except for Agency's reporting requirement, in enforcing the Restrictive
Covenants, Agency will not file any claim against the Project, the Mortgage Loan proceeds, any
reserve or deposit required by HUD in connection with the Security Instrument or HUD
Regulatory Agreement, or the rents or other income from the property other than a claim against:
i. Available surplus cash, if Company is a for-profit entity;
ii. Available distributions of surplus cash and residual receipts authorized for release
by HUD, if Company is a limited distribution entity; or
iii. Available residual receipts authorized by HUD, if Company is a non-profit entity.
(g) For so long as the Mortgage Loan is outstanding, Company and Agency shall not
further amend the Restrictive Covenants, with the exception of clerical errors or administrative
correction of non-substantive matters, without HUD's prior written consent.
(h) Subject to the HUD Regulatory Agreement, Agency may require Company to
indemnify and hold Agency harmless from all loss, cost, damage and expense arising from any
claim or proceeding instituted against Agency relating to the subordination and covenants set
forth in the Restrictive Covenants, provided, however, that Company's obligation to indemnify
and hold Agency harmless shall be limited to available surplus cash and/or residual receipts of
Company.
(i) No action shall be taken in accordance with the rights granted herein to preserve
the tax exemption of the interest on the notes or bonds, or prohibiting the owner from taking any
action that might jeopardize the tax-exemption, except in strict accord with Program Obligations.
First Amendment to Agency Subordinate Tax Regulatory Agreement-Sequoia