HomeMy WebLinkAbout1999-07-13; City Council; 15313; Seascape Apartments Multifamily Revenue BondsCITY COUNCIL AND
HOUSING AND REDEVELOPMENT COMMISSION -AGENDA dimL&
4B# 15313 TITLE: AUTHORIZATION TO EXECUTE AND
DELIVER AMENDED DOCUMENTS RELATED TO
JITG. 3 ‘13 - 4- 9 THE REFUNDING OF MULTIFAMILY REVENUE
BONDS FOR THE SEASCAPE APARTMENTS BY
IEPT. THE CALIFORNIA STATEWIDE COMMUNITIES
H/RED DEVELOPMENT AUTHORITY.
RECOMMENDED ACTION:
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DEPT.
Housing and Redevelopment Commission ADOPT Resolution No. 3L’ APPROVING, AUTHORIZING
and DIRECTING execution of an Amended and Restated Joint Exercise of Powers Agreement allowing
the Commission to participate in the economic development financing programs of the California
Statewide Communities Development Authority and APPROVING the issuance of Multifamily Housing
Revenue Refunding Bonds by the California Statewide Communities Development Authority for the
purpose of refinancing the development of the Seascape Apartments.
City Council ADOPT Resolution No. 99 -257 APPROVING the issuance of Multifamily Housing
Revenue Refunding Bonds by the California Statewide Communities Development Authority for the
purpose of refinancing the development of the Seascape Apartments.
ITEM EXPLANATION:
Background:
In 1985, the Housing and Redevelopment Commission issued Multifamily Housing Revenue Bonds to
provide financing for a 208-unit multifamily residential rental project, known as the Seascape
Apartments, located at 6938 Seascape Drive in Carlsbad. The proceeds of the bond were used to
make a loan to Lincoln Property Company (Developer), a California Limited Partnership, to fund the
construction of the subject apartment units. The incentive to the City to participate in this project was
the restriction of twenty percent (20%) of the units, or 42 units total, to rents affordable to lower income
(80% of County median or below) households.
In 1989, as a result of the Developer’s failure to make the required annual debt service payments, the
property was foreclosed on by the bond insurer, Continental Insurance Company (CIC). The
foreclosure action was completed in December of 1993 with the sale of the project to Seascape
Apartments, Inc., a corporation formed by CIC. In 1998, CIC sold the property to Archstone
Communities. In March of 1998, the City Council Adopted Resolution No. 297 which permitted the
change in ownership and the assumption of the obligation for the bond repayment by Archstone
Communities.
Request to Refinance the Bonds for Seascape Apartments
In addition to the Seascape Apartments, Archstone Communities owns several other apartment
projects throughout the State of California which are financed with Multifamily Revenue Bonds.
Archstone is seeking to refinance several of these bond projects, including the Seascape Apartments,
through a single issuer, the California Statewide Communities Development Authority (CSCDA). The
City Council has the sole authority to grant or deny permission to Archstone to allow the refunding of
the subject tax exempt bonds through CSCDA.
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Benefits to the Bond Refundinq
The City Council is not required to authorize the refunding of the subject bonds. The Council may
choose to do so, however, based on benefit to the community. The benefits to the requested refunding
are as follows:
1.
2.
Extension of Period for Rent Restrictions. As stated above, in exchange for the City initially issuing
the bonds, 42 units within the subject project were rent restricted for low income households for a
specified period of time. Although the maturity date for the current bonds is 2005, the required
period for rent restrictions has actually expired. By permitting the refunding of the bonds, the
maturity date of the bonds will be extended to 2029. With the extension of the term of the bonds,
the minimum term of the rent restrictions will automatically be extended to at least 2008. If the
bonds remain outstanding for their entire term (to 2029), the rent restriction requirements will also
remain in effect for the entire term. After 2008, the rent restrictions will terminate if Archstone
elects to “pay off’ the bonds. Council authorization for refunding of the bonds will allow the City to
obtain an additional 8 years of rent restrictions on the noted 42 units within the Seascape
Apartment Project.
Increased Affordabilitv of Rent Restrictions. If the City Council allows Archstone Communities to
refund the bonds through CSCDA, the City will lose its annual monitoring fee of $35,000. To
compensate for this loss, staff requested, and Archstone agreed to, some increased affordability
levels within the Project. Currently, all forty-two (42) of the rent restricted units must be rented at
the lessor of 30% of 80% of the Area Median Income or 90% of the market rents of comparable
units within the property. In exchange for allowing the refunding, Archstone has agreed to restrict
six (6) of the forty-two (42) units to rents which do not exceed 30% of 65% of the AMI.
In addition to the above substantial changes to the regulatory agreement for the subject project, staff
and Archstone Communities have agreed to other language changes within the agreement for
clarification and “clean up” purposes. These changes have been incorporated into the attached
regulatory agreement for approval by the Council and Commission.
Actions Reauired to Approve Refundina of Bonds
To allow for the refunding, there are actions required by both the City Council and the Housing and
Redevelopment Commission. First, prior to the issuance of private activity tax-exempt bonds,
applicable regulations require that “the applicable elected representative of a governmental unit which
has jurisdiction over the area in which a facility proposed to be financed with tax-exempt bonds is located shall conduct a public hearing and approve the issuance of such bonds.” The City Council is
the “applicable governmental unit” with jurisdiction over the Seascape Apartments, and the public
hearing held in connection with this Agenda Bill will satisfies the noted requirement. Second, the City
Council must adopt the attached resolution approving the issuance of the revenue refunding bonds by
CSCDA.
There are also two actions required of the Housing and Redevelopment Commission . First, to allow for
the refunding, the Commission must become a member of the CSCDA. Becoming a member of the CSCDA requires execution of the Amended and Restated Joint Exercise of Powers Agreement
attached as Exhibit No. 3 to this report. Second, like the City Council, the Commission must also approve the refunding of the bonds. The attached resolution for the Housing and Redevelopment
Commission accomplishes both of these requirements.
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FISCAL IMPACT:
As the issuer of the bonds, the City receives an annual fee of approximately $35,000 per year to
monitor the compliance of the project with the Regulatory Agreement. With the refunding by CSDCA,
the City will no longer receive this revenue. However, staff will also no longer expend staff time on
project compliance. The City will receive a one-time fee of $10,000, paid from proceeds of the bond
issuance, to recover staff costs associated with the refinance. Although the City will no longer be
obligated to monitor project compliance, the City will remain a third-party beneficiary to the bond
issuance and retains the right to enforce the project’s affordability requirements.
EXHIBITS:
1.
2.
3.
4.
Housing and Redevelopment Commission Resolution No. 3 11 4 authorizing the execution of
an Amended and Restated Joint Exercise of Powers Agreement and approving the issuance of
Multifamily Housing Revenue Refunding Bonds by the California Statewide Communities Development Authority for the purpose of refinancing the development of the Seascape
Apartments.
City Council Resolution No. % -As?\ au th orizing the issuance of Multifamily Housing Revenue
Refunding Bonds by the California Statewide Communities Development Authority for the purpose
of refinancing the development of the Seascape Apartments.
Amended and Restated Joint Exercise of Powers Agreement Relating to the California Statewide
Communities Development Authority.
Regulatory Agreement and Declaration of Restrictive Covenants by and among California
Statewide Communities Development Authority, U.S. Bank and Trust, and Archstone Communities.
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HOUSING AND REDEVELOPMENT COMMISSION RESOLUTION NO. 311
RESOLUTION APPROVING, AUTHORIZING AND DIRECTING
EXECUTION OF AN AMENDED AND RESTATED JOINT EXERCISE OF
POWERS AGREEMENT ALLOWING THE HOUSING AND
REDEVELOPMENT COMMISSION TO PARTICIPATE IN THE ECONOMIC
DEVELOPMENT FINANCING PROGRAMS OF THE CALIFORNIA
STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY AND
APPROVING THE ISSUANCE OF MULTIFAMILY HOUSING REVENUE
REFUNDING BONDS BY THE CALIFORNIA STATEWIDE COMMUNITIES
DEVELOPMENT AUTHORITY FOR THE PURPOSE OF REFINANCING
THE DEVELOPMENT OF THE SEASCAPE APARTMENTS.
WHEREAS, the Carlsbad Housing and Redevelopment Commission (the “Commission”) has
expressed an interest in participating in the economic development financing programs (the
“Programs”) in conjunction with the parties to that certain Amended and Restated Joint Exercise of
Powers Agreement Relating to the California Statewide Communities Development Authority (the
“Authority”), dated as of June 1, 1988 (the “Agreement”); and
WHEREAS, there is now before this Commission the form of the Agreement; and
WHEREAS, the Commission proposes to participate in a Program and desires that a certain
208~unit multifamily residential housing facility located at 6938 Seascape Drive in the City of
Carlsbad, commonly known as the Seascape Village Apartments (the “Project”), located within the
City, to be refinanced with the proceeds of a series of multifamily housing revenue refunding bonds
(the “Obligations”) to be issued by the Authority; and
WHEREAS, the City Council of the City of Carlsbad has held a public hearing with respect to,
and has approved by resolution the issuance of, the Obligations for the purpose of refinancing the
acquisition and construction of the Project; and
and
WHEREAS, it is in the public interest and for the public benefit that the Commission do so;
WHEREAS, the Agreement has been filed with the Commission, and the members of the
Commission, with the assistance of its staff, have reviewed said document;
NOW, THEREFORE, BE IT RESOLVED by the Carlsbad Housing And Redevelopment
Commission as follows:
1. The Agreement is hereby approved and the Chairperson or Executive Director or
designee thereof is hereby authorized and directed to execute said document, with
such changes, insertions and omissions as may be approved by said Chairperson or
Executive Director, and the Secretary or such Secretary’s designee is hereby
authorized and directed to attest thereto.
2. The Commission hereby approves the issuance of the Bonds by the Authority, and
ratifies all actions heretofore taken with respect to the Bonds and the Project with the
understanding that the Authority will issue the Bonds subject to the inclusion of the
Commission as a third party beneficiary in the Regulatory Agreement and Declaration
of Restrictive Covenants with respect to the Project to be executed and delivered in
connection with the issuance and delivery of the Obligations. It is the purpose and
intent of the Commission that this resolution constitute approval of the issuance of the
Obligations for the purposes of Section 9 of the Agreement.
3. The officers of the Commission are hereby authorized and directed, jointly and
severally, to do any and all things and to execute and deliver any and all documents
that they deem necessary or advisable in order to carry out, give effect to and comply
with the terms and intent of this Resolution and the refinancing approved hereby.
4. The Developer shall be responsible for the payment of all present and future costs in connection with the issuance of the Obligations, including, but not limited to, any fees
and expenses incurred by the City or the Commission in anticipation of the issuance of
the Obligations. The payment of the principal, redemption premium, if any, and
purchase price of and interest on the Obligations shall be solely the responsibility of
the Developer. The Obligations shall not constitute a debt or obligation of the City or
the Commission.
5. The Secretary of the Commission shall forward a certified copy of this Resolution and
an originally executed Agreement to:
Thomas A. Downey, Esq.
Jones Hall, A Professional Law Corporation
650 California Street, 18th Floor
San Francisco, California 94108
Ana Marie de1 Rio, Esq.
Or-rick, Herrington & Sutcliffe LLP
Old Federal Reserve Bank Building
400 Sansome Street
San Francisco, California 94 111
HRC RESO NO. PAGE 2 5
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6. This resolution shall take effect immediately upon its passage.
1 PASSED, APPROVED, AND ADOPTED at a regular meeting of the Housing and
I Redevelopment Commission of the City of Carlsbad, California, held on the p day of July, 1999 by
the following vote, to wit:
, AYES:Commissioners Lewis, Nygaard, Finnila, Hall & Kulchin
/ NOES: None
ABSENT: None
ABSTAIN:
II (SE=)
HRCRESONO. PAGE3
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RESOLUTION NO. 99-257
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, APPROVING THE ISSUANCE OF
MULTIFAMILY HOUSING REVENUE REFUNDING BONDS BY THE
CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT
AUTHORITY FOR THE PURPOSE OF REFINANCING THE
DEVELOPMENT OF THE SEASCAPE.
WHEREAS, the California Statewide Communities Development Authority (the “Authority”)
intends to issue tax-exempt obligations (the “Obligations”) for the purpose, among other things, of
making a loan to Archstone Communities Trust, (the “Developer”), a portion of the proceeds of which
($11 ,115,OOO) shall be used by the Developer to refinance the acquisition, construction and development
of a 208-unit multifamily housing facility located at 6938 Seascape Drive in the City of Carlsbad,
California, commonly known as the Seascape Village Apartments (the “Project”), which Project was
originally financed with the proceeds of multifamily housing revenue bonds issued by the Carlsbad
Housing and Redevelopment Commission (the “Commission”); and
WHEREAS, the Authority is authorized by the Government Code of the State of California in
accordance with the Health and Safety Code of the State of California (the “Law”) to issue and sell
revenue refunding bonds for the purpose of refinancing the acquisition, construction, rehabilitation and
development of multifamily rental housing facilities to be occupied in part by low and very low income
tenants; and
WHEREAS, the Obligations will be considered to be “qualified exempt facility bonds” under
Section 142(a) of the Internal Revenue Code of 1986, as amended (the “Code”), and Section 147(f) of the
Code requires that the “applicable elected representative” with respect to the geographical area in which
the Project is located hold a public hearing on and approve the issuance of the Obligations; and
WHEREAS, this City Council is the elected legislative body of the City; and
WHEREAS, a notice of public hearing in a newspaper of general circulation in the City has been
published, to the effect that a public hearing would be held by this City Council regarding the issuance of
the Obligations by the Authority and the nature and location of the Project; and
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WHEREAS, this City Council held said public hearing on such date, at which time an
opportunity was provided to present arguments both for and against the issuance of such Obligations and
the nature and location of the Project; and
NOW, THEREFORE, BE IT HEREBY RESOLVED by the City Council of the
City of Carlsbad, California, as follows:
1. The City acknowledges that the Authority intends to issue the Obligations for the purpose
of paying the costs of refinancing the acquisition, construction and development of the
Project.
2. The Developer shall be responsible for the payment of all present and future costs in
connection with the issuance of the Obligations, including, but not limited to, any fees and
expenses incurred by the City or the Commission in anticipation of the issuance of the
Obligations. The payment of the principal, redemption premium, if any, and purchase price of and interest on the Obligations shall be solely the responsibility of the Developer.
The Obligations shall not constitute a debt or obligation of the City or the Commission.
3. This City Council hereby further determines that it is appropriate for the Authority to issue
the Obligations to refinance the acquisition, construction and development of the Project
and hereby approves the issuance of the Obligations by the Authority subject to the
inclusion of the Commission as a third party beneficiary in the Regulatory Agreement and
Declaration of Restrictive Covenants with respect to the Project to be executed and delivered in connection with the issuance and delivery of the Obligations.
4. The adoption of this Resolution is solely for the purpose of meeting the requirements of
the Code and shall not be construed in any other manner, the City nor its staff having fully
reviewed or considered the financial feasibility of the refinancing of the Project or the
expected operation of the Project with regards to any State of California statutory
requirements, and such adoption shall not obligate, without further formal action to be
taken by this City Council, (i) the City to provide financing to the Developer for the
refinancing of the acquisition, construction and development of the Project or to issue the
Obligations for purposes of such refinancing; or (ii) the City, of or any department of the
City, to approve any application or request for, or take any other action in connection with
the ownership or operation of the Project.
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CC RESO NO.
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5. This Resolution shall take effect from and after the date of its passage and adoption.
PASSED, APPROVED, AND ADOPTED at a regular meeting of the City Council of the City
of Carlsbad, California, held on the 13th day of July, 1999 by the following vote, to wit:
AYES: Council Members Lewis, Nygaard, Finnila, Hall & Kulchin
NOES: None
ABSENT: None
ABSTAIN:
ATTEST:
Z, City Clerk
KAREN R. KUNDTZ, Assistant City Clerk
@Em)
CC RESO NO.
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Exhibit 3
AMENDED AND RESTATED JOINT EXERClSE OF POWERS AGREEMENT RELATING TO THE CALlFORNlA STATRIIDE COMMUNITIES - - . DEVELOQMEKT AUTMORI7Y . ' .
THIS AGREEMENT, dated as of June 1, 1988, by and among the parties executing this Agreement (all such parties, except those which have withdrawn in accordance with Section 13 hereof, being herein referred to as the 'Program Participants"):
, WlTNESSETH s.
. WHEREAS, pursuant to Title -1, Division 7,,Chapter-S of the Government Code of the State of California (the 'Joint - Exercise of Powers Act'), two or more public agencies may by agreement jointly exercise any power common to the contracting parties; and
WHEREAS, each of the Program Participants is a 'public agency" as that term is defined in Section 6500 of the :' Government Code of the State of California, and
. WEREAS, each of the Program Participants is empowered to promote economic development, including, without Lizitation, the promotion of opportunities for the creation or retention of employment, the stimulation of economic activity, and the increase of the tax base, within its boundaries; and
WHEREAS, a public entity,established pursuant to the Joint Exercise of Powers Act is empowered to issue industrial development bonds pursuant to the California Industrial Development Financing Act (Title 10 (commencing with Section 91500 of the Government Code of the State of California)) (the 'Act') and to otherwise undertake financing programs under the Joint Exercise of Powers Act or other applicable provisions of law to promote economic development through the issuance of bonds, notes, or other evidences of indebtedness, or certificates of participation in leases or other agreements (all such instruments being herein collectively referred to as -Bonds'); and
WHEREAS, in order to promote economic development within the State of California, the County Supervisors *
Association of California (BCSACo), together with the . California Manufacturers Association, has established the Bonds for Industry program (the 'Program').
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WHEREAS, in furtherance of the Program, certain California Counties (collective3y, the 'Initial Participants") have entered into that certain Joint Exercise of Powers Agreement dated as of November 18, 1987 (the 'Initial - Agreement'), pursuant to which the California Counties Industrial Development Authority has been established as a separate entity under the Joint Exercise of Powers Act for the purposes and with the powers specified in the Initial Agreement: and .
WHEREAS, the League of California Cities ("LCC") has determined to join as a sponsor of the Program and to actively participate ir the administration of the Authority; and . r
WHEREAS, the Initial Participants have determined to specifically authorite the Authority to issue Bonds pursuant to Article 2 of the Joint Exercise of Powers Act ("Article 2") and Article 4 of the Joint Exercise of Powers Act (“Article 4’), as well as may be authorized by the Act or other applicable law; and
WHEREAS, the Initial Participants desire to rename 7 the California Counties Industrial Development.Authority to better reflect the additional sponsorship of the Program;.and
WHEREAS, each of the Initial Participants has determined that it is in the public interest of the citizens within its boundaries, and to the benefit of such Initial Participant and the area and persons served by such Initial Participant, to amend and restate in its entirety the Initial Agreement in.order to implement the provisions set forth above ; and
WHEREAS, it is the desire of the Program Participants to use a public entity established pursuant to the Joint -Exercise of Powers Act to undertake projects within their respective jurisdictions that may be financed with Bonds issued pursuant to the Act, Article 2, Article 4, or other applicable provisions of law; and
WHEREAS, the projects undertaken will result in significant public benefits, including those public benefits set forth in Section 91502.1 of the Act, an increased level of economic activity, or an increased tax base, and will. therefore serve and be of benefLt to the inhabitants of the jurisdictions of the Program Participants:
NOW, THEREFORE, the Program Participants, for and in consideration of the mutual promises and agreements herein contained, do agree to restate and amend the Initial Agreement in its entirety to provide as follows:
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Section 1. Purpose.
This Agreement is made pursuant to the provisions of the Joint Exercise of Powers Act, relating to the joint exercise of powers common to public agencies, in this case being the Program Participants. The Prbgram Participants each possess the powers referred 30 in the recitals hereof. The purpose of this Agreement is to establish an agency for, and with the purpose of, issuing Bonds.to finance projects within the territorial limits of the Program Participants pursuant to the Act, Article 2, Article 4, or other appliable provisions of law: provided, however that nothing in this Agreement shall be construed as a limitation on the rights of the Program Participants to pursue economic development outside.of this" Agreement, inizluding the rights to issue Bonds through industrial development'authorities under the Act, or as - . otherwise permitted by law.
Within the various juristiictions of the Program Participants such purpose will be accomplished and said powers exercised in the manner hereinafter set forth.
Section 2. Term.
This Agreement shall become effective as of the dati hereof and shall continue in full force and effect for a period of forty (40) years from the date heseof, or until such time as it is terminated in writing by all the Progr,am Participants; provided, however, that this Agreement shall not terminate or be terminated until the bate on which all Bonds or other indebtedness issued or caused to be issued by the Authority shall have been retired, or full provision shall have been made for their retirement, including interest until their retirement date. -
Section 3. Authority.
A, CREATION AND POWERS OF AUTHORITY.
(1) Pursuant to the Joint Exercise of Powers Act, there is hereby created a public entity to be known as the 'California Statewide Communities Development Authority' (the < "Authority'), and said Authority shall be a public entity !: separate and apart from the Program Participants. Its debts,
',, I liabilities and obligations do not constitute debts, liabilities or obligations of any party to this Agreement. ,;*
B. COMMISSION.
The Authority shall be administered by a Commission (the "Commission") which shall consist of seven members, each
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serving in his or her individual capacity as a member of the Commission. The Commission shall be the administering agency of this Agreement, and, as such, shall be vested with the powers set forth herein, and shall execute and administer -this Agreement in accordance with the purposes and functions provided herein. w
Four members of the Commission shall be appointed by the governing body of CSAC and three members of the Commission shall be appointed by the governing body of LCC. Initial members of the Commission shall serve a term ending June 1, - 1991. Successors to such members shall be selected in the manner in which the respective initial member was selected and shall serve a term of three years. An] appointment to fill an unexpired term, however, shall be for such unexpired term. The term of office specified above shall be applicable-unless the term of office of the respective member is terminated as hereinafter provided, and provided that the term of any member shall not expire until a successor thereto has been appointed . as provided herein.
Each of CSAC and LCC may appoint an alternate member of the Commission for each member-of the Commission which it appoints. Such alternate member may act'as a member of the - F Commission in place of and during the absence or disability of7 such regularly appointed member. All references in this e *--cement to any member of the Commission shall be deemed to nY?- refer to and include the applicable alternate member when so acting in place-of a regularly appointed member.
Each member or alternate member of the Commission . may be removed and replaced at any time by the governing body by which such member was appointed. Any individual, including any member of the governing body or staff of CSAC or LCC, shall be eligible to serve as a member or alternate member of the Commission.
a - Members and alternate members of the COrrPnisSi.On shall not-receive any compensation for serving as such but shall be entitled to reimbursement for any expenses actually incurred in connection with serving as a member or alternate member; if the Commission shall determirie that such expenses shall be reimbu'rsed and there are unencumbered.funds available for such purpose. .
C; OFFICERS; DUTIES; OFFICIAL 3ONDS. '
The Commission shall elect a Chair, a Vice-Chair, and a Secretary of the Authority from amon'g'its members to serve.for such term as shall be determined by the Commission. The Comr,ission shall appoint one or more of its officers or
employees to serve as treasurer, auditor, and controller of the Authority (the 'Treasurer') pursuant to Section 6505.6 of the Joint Exercise of Powers Act to serve for such term as shall be determined by the Commission.
Subject to the applicable provisions of any resolution, indenture or other instrument or proceeding authorizing or securing Bonds (each such resolution, indenture, instrument and proceeding being herein referred to as an 'Indenture') providing for a trustee or other fiscal agent, the Treasurer is designated as the depositary'of the Authority to have custody of all money of t,he Authority, from whatever source derived.
The Treasurer of the Authority shall have the powers, duties and responsibilities specified in Section 6505.5 of the Joint Exercise of Powers Act. --
The Treasurer of the Authority is designated as the public officer or person who has charge of, handles, or has access to any property of the Authority, and such officer shall file an official bond with the Secretary of the Authority in the amount specified by resolution of the Commission but in no event less than $1,000. If and to the - extent permitted by law, any such officer.may satisfy this Y. requirement by filing an official bond in at least said amount obtained in connection with another public office. .
-Lh The Commission shali have the power to appoint such k w.. er officers and employees as it may deem necessary and to retain independent counsel, consultants and accountants:
The Commission shall have the power; by resolution, to the extent permitted by the Joint Exercise of Powers Act or any other applicable law, to delegate any of its functions to one or more of the members of the Cormiss'ion or officers or agents of the Authority and to cause any of said members, officers or agents to take any actions and execute any documents or instruments for and in the nanie and on' behalf of the Commission or the Authority.
D. MEETINGS OF TEE COKMISSXON.
(1) Reqular Meetinqs. '
The Commission shall provide for its regular meetings; provided, however, it shall hold at least one .regular meeting each year. The date, hour and place of the holding of the regular meetings shall be fixed by resolution of the Commission and a copy of such resolution shall be filed with each party hereto.
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(2) Special Meetinqs.
Special meetings of the Commission may be called in accordance with the provisions of Section 54956 of the Government Code of the State of California-. ._ .
(3) Ralph M. Brown.&t.
All meetings of the Commission, including, without .limitation, regular, adjourned regular, special, and adjourned special meetings shall be called, noticed, held and conducted in accordance with the provisions of the Ralph M; Brown Act (commencing with Section 54950 of the Government Code of-the State of California).
(4) Minutes.' -s
The Secretary of the Authority shall cause to be M . kept minutes of the regular, adjourned regular, special, and adjourned special meetings of the Commission and shall, as - soon as possible after each meeting, cause a copy of the minutes to be forwarded to each member of the Commission.
(5) Quorum. z-
A majority of the members of the Commission which' inc'ludes at least one member appointed by the governing body of each of CSAC and LCC shall constitute a quorum 'for the transaction of business. No action-map be taken by the Commission except upon the affirmative vote of a majority of the members of the Commission which incudes at least one member appointed by the governing body of each of CSAC and LCC, except that less than a quorum may adjourn a meeting to another time and place.
E. RULES AND REGULATIONS.
The Authority may adopt, from time to time, by resolution of the Commission such rules and regulations for the conduct of its meetings and affairs as may be required.. .
sect ion 4. 9owers.
The Authority shall have any and all powers relating to economic development authorited by law to each of the parties hereto and separately to the public entity herein created, including, without limitation, the promotion of opportunities for the creation and retention of employment, the stimulation of economic activity, and the increase of the tax base, within the jurisdictions.of'such parties.-. Such Powers shall include the common powers specified in this
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Agreement and may be exercised in the manner and according to the method provided in this Agreement. All such powers common
to the parties are specified as powers of the Authority: The Authority is hereby authorized to do all acts necessary for the exercise of such powers, including, but not limited t,o, any or all of the following: to make and enter into . contracts; to employ agents and employees; to acquire, construct, provide for maintenance and operation of, or .
maintain and operate, any buildings, works or improvements; to acquire, hold or dispose of property wherever located; to incur debts, liabilities or obligations; to receive .gifts, contributions and donations of property, funds, services and other forms of assistance from persons, firms, corporations and any governmental entity; to sue and be sued in its own '
name: and generally to do any and all things necessary OX convenient to the promotion of economic development, including without limitation the'promotion of opportunities for-the - creation or retention of employment, the stimulation of - .
economic activity, and the increase of the tax base, all as herein contemplated. Without limiting the generality of the foregoing, the Authority may issue or cause to be issued bonded and other indebtedness, and pledge any property or revenues as security to the extent permitted under the Joint Exercise of Powers Act, including Article 2 and Article 4, ,the _ . Act or any other applicable provision of law, r .
The manner in which the Authority shall exercise its powers and perform its duties is and shall be subject to the restrictions upon the manner in which a California County could exercise such powers and perform such duties until a California general law city shall become a Program Participant, at which time it shall be subject to the
restrictions upon the manner in which a California general law city could exercise such powers and perform such duties. The
manner in which the Authority shall exercise its powers and perform its duties shall not be subject to any restrictions applicable to the manner in which any other public agency could exercise such powers or perform such duties, whether such agency is a party to this Agreement or not.
Sect ion 5. Fiscal Year.
For the purposes‘of this Agreement, the term 'Fiscal Year" shall mean the fiscal year as established from time to time by the Authority, being, at t,he date of this Agreement,
the period from JULY 1 to and including the following June 30,
except for the first Fiscal Year which shall be the period
from the date of this Agreement to June 30, 1988.
Section 6. Disposition of Assets.
At the end of the term hereof or upon the earlier termination Of this Agreement as set forth in Section 2 - hereof, after payment of all expenses and'liabilities of the Authority, all property of the Authority both real and personal shall automatically vest in the Program Participants and shall thereafter remain the sole property of the Program Participants; provided, however, that any sur-plus money on hand shall be returned in proportion to the contributions made by the Program Participants.
I . .
Sect ion 7, Bonds.
The Authority shall issue Bonds for the purpose Of exercising its powers and raising the funds necessary to carry out its purposes under this Agreement. Said Bonds may, at the discretion of Authority, be issued in series.
The s ervices of bond counsel, financing consultant and other consu ltants and advisors working on the projects and/or.their fi nancing shall be used by the Authority. The fees and'expens es of such counsel, consultants, advisors, an the expenses of CSAC, LCC, and the Commission shall be paid
S
.d 7
from the proceeds of the Bonds or any other unencumbered funds of the Authority available for such purpose.
Sect ion 9. Local Approval.
A copy of the application for financing of a project shall be filed by the Authority with the Program Participant in whose jurisdiction the project is to be located., The Authority shall not issue Bonds with respect to any project unless the governing body of the Program Participant in whose ' jurisdiction the project is to be located, or its duly authorized designee, shall approve, conditionally or unconditionally, the project, including the issuance of Bonds therefor.- Action to approve or disapprove a project shall be taken within 45 days of the filing with the Program Participant. Certification of approval or disapproval shall be made by the clerk of the governing body of the Program Participant, or by such other officer as may be designated by the applicable Program Participant, to the Authority,
Sect ion 8. Bonds Only Limited and Special . Obligations of Authority.
The Bonds, together with the interest and premium, if any, thereon, shall not be deemed to constitute a debt of any Program Participant, CSAC, or LCC or pledge of the faith and credit of the Program Participants, CSAC, LCC, or the
:
Authority. Authority, The Bonds shall be Only special obligations of the and the Authority shall under no circumstances be obligated to pay the Bonds or the respective project Costs except from revenues and other funds pledged therefor. Neither the Program Participants, CSAC, LCC, nor the Authority shall be obligated to pay the principal-of, premium, if any, or interest on the Bonds, or other costs incidental thereto, except from the revenues and'funds pledged therefor, and neither the faith and credit nor the taxing power of the Program Participants nor the faith and credit of CSAC, LCC, or the Authority shall be pledged to the payment of the principal of, premium, if any, or interest on the Bonds nor shall the Program Participants, CSAC, XC, or the Authority in any manner be obligated to make any appropriation for such payment,.
No covenant or agreement contained in any Bond or Indenture shall be deemed to be a covenant or agreement of any
member of the Commission, or any officer, agent or employee of the Authority in his individual capacity and neither the Commission of the Authority nor any officer thereof executing. the Bonds shall be liable,personally on any Bond or be subject to any personal liability or accountability by reason of the issuance of any 30nds.
Sect ion 10. Accounts and Reports. 7
All funds of the Authority shall be strictly - accounted for. The Authority shall establish and maintain such funds and accounts as may‘be required by good a‘ccounting practice and by any provision of any indenture (to the extent such duties are not assigned to a trustee of Bonds). The books and records of the Authority shall be open to inspection at all reasonable times by each Program Participant.
The Treasurer of the Authority shall cause an independent audit to be made of the books of accounts and financial records of the Agency by a ;ertified public accountant or public accountant in compliance with the provisions of Section 6505 of the Joint Exercise of Powers Act. In each case the minimum requirements of the audit shall be those prescribed by the State Controller for special districts under Section 26909 of the Government Code of the State of California and shall conform to generally accepted auditing standards, When such an audit of accounts and records is made by a certified public accountant or public accountant, a report thereof shall be filed as public records with each Program Participant and also with the county auditor of each county in which a program Participant is located. Such report shall be filed within 12 months of the end of the Fiscal Year or Years under examination. -
,
I
9
,
Any costs of the audit, including contracts with, or employment of, certified public accountants or public accountants in making an audit pursuant to this Section, shall be borne by the Authority and shall be a charge against any unencumbered funds of the Authority available for that purpose. w In any Fiscal Year the Commission may, by resolution adopted by unanimous vote, replace.the annual special audit - with an audit covering a two-year period.
The Treasurer of the Authority, within 120 days - after the close of each Fiscal Year, shall dive a complete written report of all financial activities for such Fiscal Year to each of the Program Participants to the extent such activities are not covered by the reports of the trustees for the Bonds. The trustee' appointed under each fndenture%hall establish suitable funds, furnish financial reports and provide suitable accounting procedures to .carry out the provisions of said Indenture. Said trustee may be given such duties in said Indenture as may be desirable to carry out this. Agreement.
Sectiok 71. Funds. _ _ r
Subject to the applicable provisions of each Indenture, which may provide for a trustee to receive, have custody of and disburse Authority funds, the Treasurer of the Authority shall receive, have the custody of and disburse Fllthnrity funds pursuant to the accounting procedures developed under Section 10 hereof, and shall make the disbursements required by this Agreement or otherwise necessary to carry out any of the provisions or purposes of . this Agreement.
Section 32. Notices.
Notices and other communications hereunder to the Program Participants shall be sufficient if delivered to the . . - clerk of the governing body of each Program Participant.
Sect ion 13. 'Withdrawa! and Addition of Parties. . .
A Program Participant may withdraw from this Agreement upon written notice to the Commission; provided, however, that no such withdrawal shall result in the dissolution of the Authority so long as any Bonds remain outstanding under an Indenture. Any such withdrawal shall be effective only upon receipt of the notice of withdrawal by the Commission which shall acknowledge receipt of such notice of withdrawal in writing and shail file such notice as an amendment to this Agreement effective upon such filing.
10
Qualifying public agencies may be added as parties to this Agreement and become Program Participants upon: (i) the filing by such public agency of an executed counterpart of this Agreement, together with a certified copy of the resolution of the governing body of such public agency - approving this Agreement and the execution and delivery . hereof; and (ii) adoption of a resolution of the Commission approving the addition of such public agency as a Program Participant. Upon satisfaction of such conditions, the Commission shall file such executed counterpart of this - Agreement as an amendment hereto, effective upon such filing.
Sect ion 14. Indemnification.
To the full extent permitted by law, the Commission.
may authorize indemnification by the Authority of any--person who is or was a member or alternate member of the Commission, or an officer, employee or'other agent of the Authority, and who was or is a party or is threatened to be made a party to a proceeding by reason of the fact that such person is or was such a member or alternate member of the Commission, or an officer, employee or other agent of the Authority, against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in connection with such proceeding, if such person acted in good faith and in a mannef' such person reasonably believed to be in the ‘best interests of the Authority and, in the case of a criminal proceeding, had no reasonable cause to believe the conduct of such person was unlawful and, in the case of an action by or in the right of the Authority, acted with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances.
Sect ion 35. Contributi’ons and Advances.
Contributions or advances of public funds and of the
use of personnel, equipment or property may be made to the
Authority by the parties hereto for any of.the purposes of this Agreement. Payment of public funds may be made to defray the cost of any such contribution. Any such advance may be
made subject to repapent, and in such case shall be repaid, .
in the manner agreed upon by the Authority and the party making such advance at the time of such advance-
Sect ion 16. Immunities.
All of the privileges and immunities from
liabilities, exemptions from laws, ordinances and rules, all
Pension, relief, disability, workers' compensation, and other benefits which apply to the activity of offlcefs, agents or employees of Program Participants when performlng their
:
11
. !
respective functions within the territorial limits of their respective public agencies, shall.apply to them to the same degree and extent while engaged as members Qf the CommiSSiOn or otherwise as an officer, agent or other representative of the Authority or while engaged in the performance of any of their functions or duties extraterritorially under the provisions of this Agreement.
Sect ion 77. Amendments.
Except as provided in Section 13 above, this Agreement shall not be amended, modified, or altered except by a writtelqinstrument duly executed by each of the Program Participants. .e
Section 78. Effectiveness.
This Agreement shall become effective and be in full -force and effect and a legal, valid and binding obligation of. each of the Program Participants at 9:OO a.m., California
time, on the date that the Commission shall have received from -. each of the Initial Participants an executed counterpart of . - this Agreement, together with a certified copy of a resolution r - of the governing body of each such initial Participant approving this Agreement 'and the execution and delivery hereof.
w
Section IS. Partial Invalidity.
If any one or more of the terms, piovisions, promises, covenants or conditions of this Agreement shall to any extent be adjudged invalid, unenforceable, void or voidable for any reason whatsoever by a court of competent jurisdiction, each and all of the remaining terms, provisions, promises, covenants and conditions of this Agreement shall not be affected thereby, and shall be valid and enforceable to the fullest extent permitted by law.
Section 20. successors. w
This Agreement shall be binding.upon and shall inure to the benefit of the successors of the parties bereto. Except. to the extent expressly provided herein, no party may assign any right or obligation hereunder without the consent of the other parties.
Sect ion 21. Miscellaneous.
This Agreement may be executed in several counterparts, each of which shall be an origi'nal and all Of which shall constitute but one and the same instrument.
,
12
The section headings herein are for convenience only and are not to be construed as modifying or governing the language in the section referred to.
Wherever in this Agreement any consent Or approval is required, the same shall not be unreasonably withheld.
This Agreement is made in the State of %aliforhia, under the Constitution and laws of such state and is to be so construed.
This Agreement is the complete and exclusive statement of the agreement among the parties hereto, which supercedes and merges all prior proposals, understandings, and other agreements, including, without limitation, the Initial Agreement, whether oral, written, or implied in conduct, between and among the parties relating to the subject matter of this Agreement,
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to b executed and attested by their proper officers thereunto duly authoriztd, and their official seals . to h hereto affixed, as of the day and year first above 7: written.
Program Participant:
Name :
Title: .
c ATTEST:
BY - Name: Title:
:
13
ATTACHMENT A
, I 1
AJKENDMENI’ TO A JOINT POWERS AGREEMENT FOR THE
CALIFORNIA STATEWIDE CO- S DEVELOPMENT AUTHORITY
270 PARTICIPANTS AS OF June 8,1998
CITtES (1731
City of Agoura Hills
City of Alhambra City of Albany
City of Altascadero
City of Anaheim
City of Arcadia
City of Auburn
City of Avalon
City of Azusa
City of Bakersfield
City of Banning
City of Beaumont
City of Bell
City of Benicia .
City of Berkeley
City of Brea
City of Brentwood
City of Buena Park
City of Burbank
City of Burlingame
City of Campbell
City of California City
City of Canyon Lake
City of Carlsbad
City of Carson
City of Cathedral City
City of Ceres
City of Chula Vista
City of Chowchilla
City of Citrus Heights
City of Claremont
City of Clearlake
City of Clovis
City of Commerce
City of Corcoran
City of Corona
City of Cotati
City of Cudahy
City of Cypress
Town of Danville
City of Davis
City of Dos Pales
City of El Cajon
City of El Centro
City of Emeryville
City of Encinitas
City of Escondido
City of Etna
City of Eureka
City of Fairfieid
City of Folsom
City of Fresno
City of Fountain Valley
City of Fullerton
City of Glendora
City of Grass Valley
City of Gridiey
City of Hanford
City of Hawaiian Gardens
City of Hercules
City of Hollister
City of Huntington Beach
City of Huntington Park
City of Industry
City of Inglewood
City of Ione
City of It-vine
City of La Mesa
City of La Pahna
City of Laguna Beach
City of Laguna Hills
City Lake Forest
City of Lakeport
City of Lakewood
City of Lancaster
City of Lathrop
. .
City of Liicoln
City of Lindsay
City of Livingston
City of Lodi
City of Lompoc City of Long Beach
City of Los Angeles
City of Los Banes
City of Lynwood City of Madera
City of Manteca
City of Marysville
City of Maywood
City of Merced
City of Millbrae
City of Mission Viejo City of Modesto
City of Monterey City of Monterey Park
. Town of Moraga
City of Moreno Valley
City of Morgan Hill
City of Mountain View
City of National City
City of Not-walk
City of Novato
City of Oakland
City of Oceanside
City of Orange
City of Oroville
City of Oxnard
City of Pacifica
City of Palmdale
City of Pales Verdes Estates
City of Paramount
City of Pasadena
City of Patterson
City of Petaluma
City of Pinole
City of Pittsburg
City of PlacerviUe
City of Pleasanton
City of Pleasant Hill
City of Pomona
City of Porterville
City of Poway
City of Redding
City of Redlu. I City of Rialto
City of Richmond
City of Riverside
City of Rohnert Park City of Roseville
City of Sacramento
City of Saiinas
Town of San Ansehno City of San Bernardino
City of San Bruno
City of San Buenaventura
City of San Diego
City of San Gabriel
City of San Jose
City of San Juan Capistrano City of San Luis Obispo
City of San Marcos
City of Sanger City of Santa Clarita
City of Santa Cruz City of Santa Fe Springs
City of Santa Maria
City of Santa Monica
City of Santa Paula
City of Santa Rosa
City of Sausalito
City of Seal Beach
City of Seaside
City of Sehna
City of Southgate
City of South Lake Tahoe
City of Stockton
City of Suisun
City of Thousand Oaks
City of Torrance
Town of Truckee
City of Turlock
City ofTwentynine Palms
City of Union City
City bA &land
City of Vacaville
City of Vallejo
City of Visalia
City of Vista
City of Watsonville
City of West Covina
DWSJA :78072.1
Page 2 of 4
City of West Sacramentc”‘ City of Whittier
City of Woodland
couNTIEs (47)
Alameda County
Butte County
Calaveras County Colusa County
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Orange County
Placer County
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Sacramento County
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San Diego County
San Joaquin County
San Mateo County
Santa Barbara County
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Siskiyou County
Soho County
Sonoma County
Stanislaus County
Sutter Coun$
Tehama COUI -
Trinity County
Tulare County
Ventura County Yolo County
Yuba County
DTSTFUCTS (45) American River Fire Protection District
Apple Valley Fire Protection District Armona Community Services District
Big Bear City Community Services District
Bolinas Community Public Utility District
Bostonia Fire Protection District
Cardiff Sanitation District
Chino Valley Independent Fire District
Crest Fire Protection District
Davis Joint Unified School District
Diablo Water District
Encinitas Fire Protection District
Encinitas Sanitary District
Hamilton Branch Community Services .
District r
Hiimar County Water District
Idyllwild Fire Protection District
Irish Beach Water District
June Lake Public Utility District
Keyes Community Services District
Lake County Service Area No. 20
Lakeside Fire Protection District
,&.akeside Irrigation District
Los Trances County Water District
Madera County Maintenance District No. l-
Hidden Lakes Estates
Meeks Bay fire Protection District
Mid Carmel Valley Fire Protection District
Millview County Water District
North County Fire Protection District
Oceano Community Services District
Paradise Irrigation District
Peninsula Library System
Ranch0 Cucamonga Fiie Protection District
San Bernardino County Service Area No. 70 San Diego Rural Fire Protection District
San Lorenzo Valley Water District
DOCSL41:78072.1
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San Miguel Consolidates-‘re Protection
District
Scotts Valley County Water District Sierra Lakes County Water District
Springville Public Utility District
Squaw Valley County Water District
Stinson Beach County Water District
Tri-Cities Municipal Water District Tuohunne County Water District No. 1
Upper Lake County Water District Vista Unified School District
Winton Water & Sanitary District
AGENCIES (4)
City of Rialto Redevelopment Agency Culver City Redevelopment Agency
Peninsula Library System
Whittier Redevelopment Agency
CITY AND COUNTY (1)
City and County of San Francisco
DOCSLAk78072.1
Page 4 of 4
’
13138-08
TO BE RECORDED AND UPON RECORDATION RETURN TO:
Jones Hall, A Professional Law Corporation 650 California Street, 18th Floor
San Francisco, CA 94108 ATTN: Thomas A. Downey, Esq.
Exhibit 4 I a-.
REGULATORY AGREEMENT
AND DECLARATION OF RESTRICTIVE COVENANTS
by and among
CALIFORNIA STATEWIDE COMMUNITIE S DEVELOPMENT AUTHORITY,
as Issuer
and
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
and
ARCHSTONE COMMUNIXXS TRUST,
as Borrower
Dated as of J JJ999
Relating to
Seascape Village Apartments
Carlsbad, California
Section 1.
Section 2.
Section 3.
Section 4.
Section 5.
Section 6.
Section 7.
Section 8.
Section 9.
Section 10.
Section 11.
Section 12.
‘Section 13.
Section 14.
Section 15.
Section 16.
Section 17.
Section 18.
Section 19.
Section 20.
Section 21.
Section 22.
Section 23.
Section 24.
Section 25.
Section 26.
Section 27.
TABLE OF CONTENTS
Definitions and Interpretation ................................................................................. 1
Completion of the Project ....................................................................................... .5
Residential Rental Property ................................................................................... .5
Low Income Tenants and Very Low Income Tenants ............................................... .7
Consideration.. ..................................................................................................... 10
Tax-Exempt Status of the Bonds; Modification of Special Tax Covenants.. ................. 10
Agreement to Record ............................................................................................ 11
Reliance.. ............................................................................................................. 11
Project Within the Boundaries of the City ............................................................... 12
Sale or Transfer of the Project ................................................................................ 12
Term .................................................................................................................... 12
Burden and Benefit.. ............................................................................................. 13
Uniformity; Common Plan’........... ........................................................................ 13
Enforcement ......................................................................................................... 13
Estoppel Certificate.. ............................................................................................. 14
Indemnification .................................................................................................... 14
Amendments ....................................................................................................... 15
Notice .................................................................................................................. 16
Severability.. ........................................................................................................ 16
Multiple Counterparts.. ......................................................................................... 16
Limited Liability .................................................................................................. 16
The Trustee.. ........................................................................................................ 16
Attorney’s Fees ..................................................................................................... 16
Administrator ....................................................................................................... 16
Payment of Fees.. ................................................................................................. 17
Governing Law .................................................................................................... 18
Third Party Beneficiaries.. ..................................................................................... 18
EXHIBIT A - LEGAL DESCRIPTION OF PROJECT SITE
EXHIBIT B - CERTIFICATION OF CONTINUING PROGRAM COMPLIANCE
EXHIBIT C - INCOME COMPUTATION AND CERTIFICATION
-l-
REGULATORY AGREEMENT
AND DECLARATION OF RESTRICTPVE COVENANTS
THIS REGULATORY AGREEMENT AND DECLARATION OF RESTRICTlVE COVENANTS (the “Regulatory Agreement”) is made and entered into as of Ftffel
1999, by and among the CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMEN; AUTHORITY, a joint exercise of powers agency organized and existing under the laws of the State of California (the “Issuer”), U.S. BANK TRUST NATIONAL ASSOCIATION, a
national banking association organized under the laws of the United States of America and
authorized to accept and execute trusts of the type contemplated by the Indenture (as herein
defined), as Trustee (the “Trustee”), and ARCHSTONE COMMUNITIES TRUST, a Maryland
real estate investment trust (the “Borrower”),
WITNESSETH:
WHEREAS, the Issuer is a public body corporate and politic (within the meaning of that
term in the Regulations of the Department of Treasury and the rulings of the Internal Revenue
Service prescribed and promulgated pursuant to the Code (as hereinafter defined) (the “Code”);
and
WHEREAS, on &+6-, 1999, the Issuer adopted a resolution authorizing the
issuance of its Apartment -Multi-Familv Housing Revenue Refunding . . Bonds (Archstone/Seascape Village Apartments m ) (Refunding) Se&es- Issue
1999 -(the “Bonds”) and the loan of the proceeds thereof to the Borrower to enable the
Borrower to refinance multifamily housing developments, including a 208-unit development located within the City of Carlsbad as further described herein (the “Project”), all for the public purpose of assisting persons of low and very low income within the area of operation of the Issuer to obtain decent, safe and sanitary housing; and
WHEREAS, as more specifically set forth herein, the Borrower will rent or lease or will hold available for rent or occupancy at least twenty percent (20%) of the dwelling units in the Project to individuals or households of low income, as herein defined, all for the public purpose of assisting such individuals and families to afford the costs of decent, safe and sanitary housing; and
WHEREAS, the Act and the Code (each as hereinafter defined), and the regulations and
rulings promulgated with respect thereto, prescribe that the use and operation of the Project be
restricted in certain respects and in order to ensure that the Project will be used and operated in
accordance with said Act, Code, regulations, and rulings, and to that end, the Issuer, the
Trustee and the Borrower have determined to enter into this Regulatory Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and undertakings set forth herein, and other good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, the Issuer, the Trustee and the Borrower hereby agree as follows.
Section 1. Definitions and Interpretation. Capitalized terms used herein shall have the
following meanings unless the context in which they are used clearly requires otherwise. Any
capitalized terms used in this Regulatory Agreement and not defined herein shall have the
meaning given such terms in the Indenture.
“&’ means Chapter 1 of Part 2 of Division 24 of the Health and Safety Code of the State of California as in effect at the time of the issuance and delivery of the Prior Bonds.
1
24
“Adiusted Income” means the adjusted income of a person together with the adjusted income of all persons (except children under the age of 18 years) who intend to reside with such person in one residential unit, as calculated in the manner prescribed in the Code.
“Administrator” means the Issuer, or a substitute or replacement administrator, if any,
appointed by the Issuer, in any case acting as agent of the Issuer in the administration of this
Regulatory Agreement. The initial Administrator shall be Urban Futures, Inc.
“Affordable Rent” means with respect to Low Income &nits a -- monthly rent which does
not exceed 30% of one-twelfth of SO%, and with resuect to Verv Low Income Units. a monthlv
rent which does not exceed 30% of one-twelfth of 65%, of the Median Income for the Area, as
adjusted for household size, and assuming the following household sizes for the two types of residential units in the Project:
Residential Units Number of Persons in Familv
One Bedroom 2
Two Bedroom 4
Such rent amounts shall be further reduced by deducting tenant-paid utilities (nas.
electricitv, hot water, water, sewer and trash). The amount calculated for tenant-paid utilities
will be based on the current “Utility Rate Schedule” established for& the Carlsbad Housing
+&her&+ Housing and Redeveloument Department for the Section 8 Tenant Based Rental
Assistance Program. In no event shall the monthly rent so determined exceed 90% of the rent charged for a comparable market-rate uni-t++unit in the Project.
“Area” means the Primary Metropolitan Statistical Area in which the Project is located, as promulgated by HUD.
“Bond Counsel” means any attorney at law or firm of attorneys selected by the Issuer,. of nationally recognized standing in matters pertaining to the federal tax status of interest on bonds issued by states and political subdivisions, and duly admitted to practice law before the highest court of any state of the United States of America, but shall not include counsel for the Borrower.
“Bondholder” or ‘holder” or “owner of the Bonds” means the registered owner of any
Bond as shown on the registration books maintained by the Trustee pursuant to the Indenture.
“Bonds” means the California Statewide Communities Development Authority A-p&mez&ve+me& Multi-Family Housing Revenue Refunding Bonds
(Archstone/SeascapeVillage -ApartmentsGmmuni& Trust )v Issue 1999
= A issued in the original principal amount of $15,115,000.
“Borrower” means Archstone Communities Trust, a Maryland real estate investment
trust, and its successors and assigns, and any surviving, resulting or transferee entity, as
successor in interest to Seascape Apartments, Inc., an Illinois corporation.
“Borrower Remesentative” means the person or persons (who may be employees of the Borrower) designated from time to time to act hereunder on behalf of the Borrower in a written certificate furnished to the Issuer and the Trustee, containing a specimen signature of such
2
person or persons and signed on behalf of the Borrower by a duly authorized representative of the Borrower.
“w means the City of Carlsbad, California.
“Code” means the (Internal Revenue Code of 1954, as amended (herein the “1954
Code”) and the Internal Revenue Code of 1986, as amended (herein the “1986 Code”), in each
case to the extent made applicable to matters relating to the Bonds and the Project by Section 1313(a) of the Tax Reform Act of 1986) and with respect to a specific section thereof such reference shall be deemed to include (a) the applicable regulations promulgated or proposed under such section or any previous corresponding section, (b) any successor provision of similar import hereafter enacted, (c) any corresponding provision of any subsequent Internal Revenue Code and (d) the applicable regulations promulgated or proposed under the provisions
described in (b) and (c). .
“Commission” means the Carlsbad Housing and Redevelopment Commission.
“County” means the County of San Diego.
“Indenture” means the Indenture of Trust, dated as of , 1999, between the Issuer
and the Trustee, as originally executed or as it may from time to time be amended in accordance with its terms.
“Issue Date” means the date on which the Bonds are first issued, being , 1999.
“Issuer” means the California Statewide Communities Development Authority and its successors or assigns.
“Loan” means the loan made by the Issuer to the Borrower pursuant to the Loan Agreement for the purpose of refinancing the Project.
“Loan Aereement” means the Loan Agreement, dated as of , 1999, between,
the Issuer and the Borrower, as originally executed or as it may from time to time be
supplemented or amended.
“Low Income Tenants” means individuals or families, who have an Adjusted Income which does not exceed eighty percent (80%) of the Median Income for the Area.
“Low Income Units” means the dwelling units in the Project designated for occupancy
by Low Income Tenants pursuant to Section 4.
“Median Income for the Area” means the median income for the Area as most recently
determined by the Secretary of the Treasury (which determination is required by Code Section 142(d)(2)(B) to be consistent with determinations of area median gross income under Section 8 of the United States Housing Act of 1937, or, if such program is terminated, under such program as in affect immediately before such termination).
“Prior Bonds” means $15,115,000 Carlsbad Housing and Redevelopment Commission
Multifamily Housing Revenue Refunding Bonds Series A of 1994 (Seascape Village Project).
“Prior Reeulatorv Aereement” means the Amended and Restated Regulatory Agreement and Declaration of Restrictive Covenants, dated as of September 1, 1994, by and among the Commission, the Borrower and U.S. Bank Trust National Association, as successor trustee.
3
“Project” means the Project Facilities and the Project Site.
“Proiect Facilities” means the multifamily rental housing development consisting of 208 units, including structures, buildings, fixtures or equipment, as it may at any time exist, the acquisition, rehabilitation and development of which facilities are to be financed or refinanced from the proceeds of the sale of the Bonds and any structures, buildings, fixtures or equipment
acquired in substitution for, as a renewal or replacement of, or a modification or improvement
to, all or any part of such facilities.
“Proiect Loan Documents” means, collectively, the Loan Agreement and all other documents related to the Loan executed by the Borrower.
“Proiect Site” means the parcel of real property described in Exhibit “A” which is
attached hereto, and incorporated by reference herein, and all rights and appurtenances
thereunto appertaining.
Chralified Proiect Period” means the period beginning on the first day on which ten
percent of the dwelling units in the Project were occupied (May 11, 1986), and ending on the later of: (a) the date which is ten years after the date on which fifty percent (50%) of the dwelling units in the Project were occupied; (b) the date which is a qualified number of days after the date on which any of the dwelling units in the Project were occupied; (c) the date on which any assistance provided with respect to the Project under Section 8 of the United States Housing Act of 1937 terminates, or (d) the date on which no Bonds remain outstanding. For purposes of clause (b), the term “qualified number of days” means, with respect to the Bonds, fifty percent (50%) of the total number of days comprising the period from May 21, 1985 to the maturity date of the Bonds.
“Re-gulations” or “Treasurv Ree-ulations” means the Income Tax Regulations promulgated by the Department of the Treasury pursuant to the Code from time to time, as the same may be in effect at the time in question.
“Reeulatorv Aereement” means this Regulatory Agreement and Declaration of Restrictive
Covenants, dated as of , 1999, among the Issuer, the Trustee and the Borrower.
“State” means the State of California.
“Trustee” means the entity acting as trustee under the Indenture.
“Verv Low Income Tenants” means individuals or families, who have an Adjusted
Income which does not exceed #i&y- sixty-five percent (=a%) of the Median Income for the
Area. “Verv Low Income Units” means the dwelling units in the Project designated for occupancy by Very Low Income Tenants pursuant to Section 4.
Such capitalized terms as are not defined herein shall have the meanings ascribed to them in the Indenture.
Unless the context clearly requires otherwise, words of the masculine, feminine or neuter gender shall be construed to include each other gender when appropriate and words of the singular number shall be construed to include the plural number and vice versa, when appropriate. All the terms and provisions hereof shall be construed to effectuate the purposes set forth in this Regulatory Agreement and to sustain the validity hereof.
The titles and headings of the sections of this Regulatory Agreement have been inserted for convenience of reference only, are not to be considered a part hereof and shall not in any way modify or restrict any of the terms or provisions hereof or be considered or given any effect in construing this document or any provision hereof or in ascertaining intent, if any question of intent shall arise.
Section 2. Completion of the Project. The Borrower hereby represents, as of the date hereof, and covenants, warrants and agrees as follows:
(4 The statements made in the various certificates delivered by the Owner to the Issuer and/or the Trustee are true and correct in all material respects.
PO Money on deposit in any fund or account in connection with the Bonds,
whether or not such money was derived from other sources, shall not be used by or
under the direction of the Borrower, in a manner which would cause the Bonds to be
“arbitrage bonds” within the meaning of Section 148 of the Code, and the Borrower
specifically agrees that the investment of money in any such fund shall be restricted as
may be necessary to prevent the Bonds from being “arbitrage bonds” under the Code.
(4 The Borrower (and any person related to it within the meaning of Section
147(a) of the Code) will not purchase and hold any Bonds pursuant to any arrangement,
formal or informal, and will not take or omit to take, as is applicable, any other action if such action or omission would in any way cause the proceeds from the sale of the Bonds to be applied in a manner contrary to the requirements of the Indenture, the Loan Agreement or this Regulatory Agreement.
(d) No default by the Borrower in the performance or observance of any material covenant, agreement or obligation of the Borrower set forth in the Prior Regulatory Agreement has occurred or is continuing as of the Issue Date.
(4 The Project has been operated during Borrower’s period of ownership, prior to the Bond Issuance Date, in a manner consistent with the Prior Regulatory Agreement. The Borrower is not now in default under the Prior Regulatory Agreement.
Section 3. Residential Rental Property. The Borrower hereby acknowledges and agrees
that the Project is owned, managed and operated as a “qualified residential rental project”
(within the meaning of Section 142(d) of the Code) until the expiration of the Qualified Project
Period. To that end, and for the term of this Regulatory Agreement, the Borrower hereby represents, as of the date hereof, and covenants, warrants and agrees as follows:
(a) The Project has been acquired by the Borrower for the purpose of providing multifamily residential rental property, and the Borrower shall own, manage and
operate the Project as a project to provide multifamily residential rental property comprised of a building or structure or several interrelated buildings or structures, together with any functionally related and subordinate facilities, and no other facilities, in accordance with applicable provisions of Section 142(d) of the Code and Section 1.103-8(b) of the Regulations, and the Act, and in accordance with such requirements as may be imposed thereby on the Project from time to time.
(b) All of the dwelling units in the Project are similarly constructed units, and, to the extent required by the Code and the Regulations, each dwelling unit in the Project contains complete separate and distinct facilities for living, sleeping, eating, cooking and sanitation for a single person or a family, including a sleeping area, bathing and
5
sanitation facilities and cooking facilities equipped with a cooking range, refrigerator and sink.
(c) None of the dwelling units in the Project will at any time be utilized on a transient basis, or will ever be used as a hotel, motel, dormitory, fraternity house, sorority house, rooming house, nursing home, hospital, sanitarium, rest home, retirement
house or trailer court or park.
(d) No part of the Project will at any time be owned by a cooperative housing corporation, nor shall the Borrower take any steps in connection with a conversion to such ownership or uses. Other than obtaining a final subdivision map on the Project and a Final Subdivision Public Report from the California Department of Real Estate, the Borrower shall not take any steps in connection with a conversion of the Project to a
condomjnium ownership except with the prior written approving opinion of Bond
Counsel that the interest on the Bonds will not become includable in gross income for federal income tax purposes thereby under Section 103 of the Code.
(e) All of the dwelling units in the Project will be available for rental on a continuous basis to members of the general public and the Borrower will not give preference to any particular class or group in renting the dwelling units in the Project, except to the extent that dwelling units are required to be leased or rented to Low Income Tenants.
(f) The Site consists of a parcel or parcels that are contiguous except for the interposition of a road, street or stream, and all of the Project Facilities comprise a single geographically and functionally integrated project for residential rental property, as evidenced by the ownership, management, accounting and operation of the Project.
(g) No dwelling unit in the Project shall be occupied by the Borrower. Notwithstanding the foregoing, this subsection shall not be construed to prohibit occupancy of dwelling units by one or more resident managers or maintenance personnel any of whom may be the Borrower or other administrative personnel; provided that the, number of such managers or maintenance personnel is not unreasonable given industry standards in the area for the number of dwelling units in the Project.
(h) Should involuntary noncompliance with the provisions of Section 1.103-8(b)
of the Regulations be caused by fire, seizure, requisition, foreclosure, transfer of title by
deed in lieu of foreclosure, change in a federal law or an action of a federal agency after
the Issue Date which prevents the Issuer from enforcing the requirements of the Regulations, or condemnation or similar event, the Borrower covenants that, within a “reasonable period” determined in accordance with the Regulations, it will either prepay the Loan or apply any proceeds received as a result of any of the preceding events to reconstruct the Project to meet the requirements of Section 142(d) of the Code and the Regulations.
(i) The Borrower shall not discriminate on the basis of race, creed, color, sex, source of income (e.g. AFl3G CAL-Works, SSI), physical disability, age, national origin
or marital status in the rental, lease, use or occupancy of the Project or in connection with the employment or application for employment of persons for the rehabilitation, operation and management of the Project.
(j) The Borrower shall provide competent and responsible management for the Project by employees of Borrower or an affiliate of Borrower, or a management company
6
and pursuant to a written management agreement, satisfactory to the Issuer. The Borrower shall not enter into any management agreement or arrangement with any other party with respect to the management of the Project without the Issuer’s prior written consent, such consent not to be unreasonably withheld. The Borrower shall not materially modify, amend or terminate any approved management agreement without
the Issuer’s prior written consent, which consent will not be unreasonably withheld.
Section 4. Low Income Tenants and Very Low Income Tenants. Pursuant to the
requirements of the Code and the Act, the Borrower hereby represents, warrants and covenants that throughout the Qualified Project Period:
A. Low Income Units and Verv Low Income Units.
(i) From and after the Issue Date and throughout the term of the Qualified Project Period, not less than 20 percent of the completed units in the Project shall be occupied (or held vacant and available for immediate occupancy) at all times
by Low Income Tenants at an Affordable Rent; provided, however, 15 percent of
such comuleted units (6 units) in the Proiect held occunied or held vacant for
immediate occuoancv by Low Income Tenants shall be occuuied (or held vacant
and available for immediate occupancv) at all times bv Verv Low Income
Tenants at an Affordable Rent;
(ii) For the term of the Qualified Project Period, the Owner will
particiuate in, and agree to accept Rental Assistance Vouchers and/or
Certificates under the Citv’s Section 8 Tenant-Based Rental Assistance Proeram
for any and all Low Income Units and Very Low Income Units and as set forth
within the anurouriate aereements for uarticiuation in such txoexun. In
connection with the rental of comuleted units in the Proiect to Verv Low Income
Tenants as set forth in Section 4.A.(l) above, the Owner mav give ureference to
households with a Section 8 Tenant-Based Rental Assistance Voucher or
Certificate from the City.{
(iii) The Borrower will designate such units and will make any revisions to such designations (which revisions the Borrower may make from time to time at its sole option, provided that the requirements hereof are met on a continuous basis) by delivery of an appropriate certificate to the Issuer.
(iv) The Borrower shall advise the Administrator [and the Commission]
of the status of the occupancy of the Project on a quarterly basis for the term of this Regulatory Agreement by delivering a Certification of Continuing Program Compliance (in the form attached hereto as Exhibit B) each January 1, April 1,
July 1, and October 1, commencing October 1, 1999. Moreover, a unit occupied
by a Low Income Tenant or Very Low Income Tenants, as applicable, shall be
deemed, upon the termination of such Low Income Tenant’s or Very Low Income
Tenant’s occupancy, to be continuously occupied by a Low Income Tenant or
Very Low Income Tenant, as applicable, until reoccupied, other than for a
temporary period, at which time the character of the unit shall be redetermined.
In no event shall such temporary period exceed 31 days.
(v) The Low Income Units and Very Low Income Units will be intermingled with all other dwelling units in the Project and shall be of a quality, and offer a range of sizes and number of bedrooms, comparable to those units which are available to other tenants. Tenants in the Low Income Units and Very Low Income Units shall have equal access and enjoyment to all common facilities of the Project.
B. The Borrower will obtain, complete and maintain on file income certifications from each Low Income Tenant or Very Low Income Tenant, as applicable, dated immediately prior to the initial occupancy of such Low Income Tenant or Very Low Income Tenant, as applicable, in the Project, in substantially the form set forth in Exhibit C hereto or such other form of Income Computation and Certification which is
acceptable to the Administrator and the Commission and which is consistent with HUD
Rexgulation for the Section 8 Tenant-Based Rental Assistance Program (the “Income
Certification”), and will provide such additional information as may be required in the
future by the State of California, the Issuer and the Administrator and by the Code, as
the same may be amended from time to time, or in such other form and manner as may be required by applicable rules, rulings, policies, procedures, Regulations or other official statements now or hereafter promulgated, proposed or made by the Department of the Treasury or the Internal Revenue Service with respect to obligations issued under the
Code. A copy of each such income certification will be attached to the quarterly
Certificate of Continuing Program Compliance filed with the Administrator pursuant to
this Section 4. The Borrower shall make a good faith effort to verify that the income provided by an applicant in an income certification is accurate by taking one or more of the following steps as a part of the verification process: (i) obtain a pay stub for the most recent pay period, (ii) obtain an income tax return for the most recent tax year, (iii) contact the applicant’s current employer, or (iv) obtain other independent written evidence of annual income, including statements of social security payments or other forms of governmental assistance.
On July 1, 1999 and on July 1 in each e year thereafter, the
Borrower shall file with the Commission, the Trustee and the Program Administrator a complete and updated Income Certification form for each Low Income Tenant and Very Low Income Tenant residing in the Project. If, based upon the updated income certification, a tenant no longer qualified as a Low Income Tenant, the Borrower shall rent the next available unit and any necessary units thereafter to Low Income Tenants or
8 36
Very Low Income Tenants such that, by no later than the January 1 immediately following such July 1, at least 20 percent of the units in the Project are actually occupied by Low Income Tenants or Very Low Income Tenants. In no event shall the rent of any
tenant who has ceased to be a Low Income Tenant or a Very Low Income Tenant be raised above the Affordable Rent before such time as a new Low Income Tenant or a Very Low Income Tenant is qualified and commences occupancy of a unit in the Project at an Affordable Rent. In addition, no tenant shall be denied continued occupancy in a unit solely because such tenant no longer qualified as a Low Income Tenant or a Very Low Income Tenant because of an increase in household income subsequent to such
tenant’s initial date of occupancy.
C. The Borrower will maintain a list of persons who have submitted an application to the Borrower of their desire to rent a unit in the Project and paid the application fee, and who have Adjusted Incomes which would qualify them as Low Income Tenants or Very Low Income Tenants, as applicable.
D. The Borrower will maintain complete and accurate records pertaining to the Low Income Units and the Very Low Income Units, and will permit any duly authorized representative of the Issuer, the Administrator, the Department of the Treasury, the Commission or the Internal Revenue Service to inspect the books and records of the Borrower pertaining to the Project, including those records pertaining to the occupancy of the Low Income Units and the Very Low Income Units, upon not less than forty-eight
(48) hours advance written notice.
E. The Borrower shall accept as tenants on the same basis as all other
prospective tenants, persons who are recipients of federal certificates for rent subsidies pursuant to the existing program under Section 8 of the United States Housing Act of 1937, or its successor. The Borrower shall not apply selection criteria to Section 8
certificate holders that are more burdensome than criteria applied to all other prospective tenants.
F. Each lease pertaining to a Low Income Unit or a Very Low Income Unit, as
applicable, shall contain a provision to the effect that the Borrower has relied on the income certification and supporting information supplied by the Low Income Tenant or the Very Low Income Tenant, as applicable, in dete rmining qualification for occupancy of the Low Income Unit or the Very Low Income Unit, as applicable, and that any material misstatement in such certification (whether or not intentional) will be cause for immediate termination of such lease.
G. On October 1 of each year the Borrower will provide to the Commission a report demonstrating that the average comuarable rents of the Low Income 3&ta&s
Units do not exceed 90% of the v-rents for the market rate units based on leases
in effect for the Project on the date of the report.
Section 5. Consideration. The Issuer has issued the Bonds to provide funds to make the Loan to provide refinancing for the Project, all for the purpose, among others, of inducing the
Borrower to acquire, construct, equip and operate the Project. In consideration of the issuance
of the Bonds by the Issuer, the Borrower has entered into this Regulatory Agreement and has
agreed to restrict the uses to which the Project can be put for the term hereof. T
Section 6. Tax-Exempt Status of the Bonds; Modification of Special Tax Covenants.
A. Tax-Exemut Status of the Bonds: The Borrower and the Issuer each hereby
represents, warrants and agrees that:
1. It will not knowingly take or permit, or omit to take or cause to be taken,
as is appropriate, any action that would adversely affect either the exclusion from gross income under federal tax law or the exemption from California personal income taxation of the interest on the Bonds and, if it should take or permit, or omit to take or cause to be taken, any such action, it will take all lawful actions necessary to rescind or correct such actions or omissions promptly upon obtaining knowledge thereof;
2. It will take such action or actions as may be necessary, in the written
Opinion of Bond Counsel filed with the Issuer, the Borrower and the Trustee, (i) to
comply fully with all applicable rules, rulings, policies, procedures, regulations or other
official statements promulgated, proposed or made by the Department of the Treasury
or the Internal Revenue Service pertaining to obligations issued under the Code, and (ii)
to comply with any applicable requirements of the Act and the Code; and
3. It will file of record such documents and take such other steps as are
necessary, in the written Opinion of Bond Counsel filed with the Issuer, the Borrower
and the Trustee, in order to insure that the requirements and restrictions of this
Regulatory Agreement will be binding upon all owners of the Project.
The Borrower hereby covenants to reference this Regulatory Agreement in any documents transferring any interest (other than a leasehold interest in individual units) in the Project to another person to the end that such transferee has notice of, and is bound by, such restrictions, and to obtain the agreement from any transferee to abide to all requirements and restrictions of this Regulatory Agreement.
B. Modification of Suecial Tax Covenants. The Borrower, the Trustee and the Issuer hereby agree as follows:
1. To the extent any final regulations or any amendments to the Code, in the written Opinion of Bond Counsel filed with the Issuer and the Trustee, imposes requirements upon the ownership or operation of the Project more restrictive than those imposed by this Regulatory Agreement, this Regulatory Agreement shall be deemed automatically amended in accordance with paragraph 3 of this Section 6.B. to impose
such additional or more restrictive requirements.
2. To the extent any final regulations or any amendments to the Code, in the
written Opinion of Bond Counsel filed with the Issuer and the Trustee, imposes
requirements upon the ownership or operation of the Project less restrictive than those
imposed by this Regulatory Agreement, this Regulatory Agreement shall, with the written
consent of the Issuer (which consent shall be in the sole discretion of the Issuer), be
amended in accordance with paragraph 3 of this Section 6.B. to provide such less
restrictive requirements.
3. The Borrower, the Issuer and, if applicable, the Trustee will execute, deliver
and, if applicable, file of record any and all documents and instruments, necessary to
effectuate amendments required or permitted by this Section 6.B., and the Borrower and
the Issuer each hereby appoints the Trustee as its true and lawful attorney-in-fact to
execute, deliver and, if applicable, file of record on behalf of the Borrower or the Issuer,
as is applicable, any such document or instrument (in such form as may be approved in
10
writing by Bond Counsel) if either the Borrower or the Issuer defaults in the performance
of its obligation under this subsection 6.B.3.; provided, however, that the Trustee will
take no action under this subsection 6.B.3. w&he&Without first being reque&d
tereauested to do so by the Issuer or the Borrower and without first notifying the
Borrower, the Issuer, or both of them, as is applicable, of its intention to take such action and providing the Borrower or the Issuer, or both, as is applicable, the time required to reasonably comply with the requirements of this Section 6.B.
Section 7. Agreement to Record. The Borrower hereby represents, warrants and
covenants that it will cause this Regulatory Agreement to be recorded in the real property
records of the Recorder’s office of the County, and in such other places as the Administrator,
the Issuer or the Trustee may reasonably request. The Borrower shall pay all fees and charges
incurred in connection with any such recording. Upon recordation of this Regulatory
Agreement, this Regulatory Agreement will replace and supersede the Prior Regulatory
Agreement.
Section 8. Reliance. The Issuer and the Borrower hereby recognize and agree that the representations and covenants set forth herein may be relied upon by the Trustee, the Issuer, the Borrower and the owners of the Bonds. In performing their duties and obligations hereunder, the Issuer, the Administrator and the Trustee may rely upon statements and certificates of the Borrower, Low Income Tenants and the Very Low Income Tenants, and upon audits of the books and records of the Borrower pertaining to occupancy and rental of the Project. In performing its duties hereunder, the Borrower may rely on the Income Computation and Certifications and any +&&&ensverification in support thereof unless the Borrower has
actual knowledge that such Certificates or verifications are inaccurate. In addition, the Issuer, the Administrator, the Trustee and the Borrower may consult with Bond Counsel, and the Opinion of Bond Counsel shall be full and complete authorization and protection in respect of any action taken or suffered by the Issuer, the Administrator, the Trustee or the Borrower hereunder in good faith and in conformity with such opinion. In determining whether any default or lack of compliance by the Borrower exists under this Regulatory Agreement, neither
the Trustee nor the Issuer (or the Administrator) shall be required to conduct any investigation
into or review of the operations or records of the Borrower and may rely solely on any notice or
certificate delivered to the Trustee, the Administrator or the Issuer by the Borrower, the Issuer or
the Administrator with respect to the occurrence or absence of a default.
Section 9. Project Within the Boundaries of the City. The Borrower hereby represents
and warrants that the Project is located entirely within the boundaries of the City.
Section 10. Sale or Transfer of the Project. The Borrower hereby covenants and agrees not to voluntarily sell, transfer or otherwise dispose of the Project or any portion thereof (other than for individual tenant use as contemplated hereunder), without obtaining the prior written consent of the Issuer. Such consent shall be given by the Issuer upon compliance by the Borrower with the following (i) delivery by the Borrower or transferee to the Issuer and the Trustee of reasonable evidence satisfactory in the form of all instruments of assumption to the Issuer that the Borrower’s purchaser or transferee has assumed in writing and in full, and is reasonably capable of performing and complying with, the Borrower’s duties and obligations under this Regulatory Agreement and the Loan Agreement, (ii) delivery by the Borrower or transferee to the Issuer and the Trustee of an opinion of counsel from the date of such assumption of the transferee, addressed to the Issuer, the Trustee, that the transferee has duly assumed the obligations of the Borrower under this Regulatory Agreement and the Loan Agreement, and that such obligations and this Regulatory Agreement, the Loan Agreement are legal, valid and binding obligations of the transferee, (iii) delivery by the Borrower to the Issuer, with a copy to the Trustee, of a certificate of a Borrower Representative to the effect that no
11 37
default has occurred and is continuing under this Regulatory Agreement or the Loan Agreement, and (iv) delivery by the Borrower or transferee to the Issuer of evidence that all fees due the Issuer, the Administrator and the Trustee under the Loan Agreement and the Indenture are current. It is hereby expressly stipulated and agreed that any sale, transfer or other disposition of the Project in violation of this section shall be null, void and without effect, shall cause a reversion of title to the Borrower, and shall be ineffective to relieve the Borrower of its obligations under this Regulatory Agreement. Nothing contained in this Section shall affect any provision of any other document or instrument between the Borrower and the Issuer or the
Trustee, which requires the Borrower to obtain the consent of the Issuer, the Bondowners or the
Trustee as a precondition to sale, transfer or other disposition of the Project or which gives the
Issuer or the Trustee the right to accelerate the maturity of the Loan, or to take some other similar action with respect to the Loan upon the sale, transfer or other disposition of the Project. Upon any such permitted sale or transfer of the Project under this Section, the selling or transferring entity shall be deemed released from its future obligations under the Regulatory Agreement but not from liability for past actions or inactions with respect to its obligations under the Regulatory Agreement.
Section 11. Term. This Regulatory Agreement shall become effective upon its execution and delivery. This Regulatory Agreement shall remain in full force and effect for a term and period equal to the Qualified Project Period, it being expressly agreed and understood that the provisions hereof are intended to survive the retirement of the Bonds and the Loan. The terms
of this Regulatory Agreement to the contrary notwithstanding, this Regulatory Agreement, and
all and several of the terms hereof, shall terminate and be of no further force and effect in the
event of (i)(a) involuntary noncompliance with the provisions of this Regulatory Agreement caused by a foreclosure by the Trustee of the lien of a deed of trust on the Project, or delivery of
a deed in lieu of foreclosure, pursuant to which the Trustee or a purchaser or transferee
pursuant to such foreclosure shall take possession of the Project or (b) involuntary
noncompliance with the provisions of this Regulatory Agreement caused by fire, seizure, or requisition, or change in a Federal law or an action of a federal agency after the date hereof
which prevents the Issuer and the Trustee from enforcing the provisions hereof, or condemnation
or similar event and (ii) the payment in full and retirement of the Bonds prior to such
involuntary noncompliance or within a reasonable period thereafter; provided, however, that
the preceding provisions of this sentence shall cease to apply and the restrictions contained
herein shall be reinstated if, at any time subsequent to the termination of such provisions as the result of the foreclosure of the lien of a deed of trust or the delivery of a deed in lieu of foreclosure or a similar event, the Borrower or any “related person” (within the meaning of the Code) obtains an ownership interest in the Project for Federal income tax purposes. Upon the termination of all and several of the terms of this Regulatory Agreement, the parties hereto agree to execute, deliver and record appropriate instruments of release and discharge of the terms hereof; provided, however, that the execution and delivery of such instruments shall not be necessary or a prerequisite to the termination of this Regulatory Agreement in accordance with its terms.
Section 12. Burden and Benefit The Issuer and the Borrower hereby declare their understanding and intent that the burden of the covenants set forth herein touch and concern the Project Site in that the Borrower’s legal interest in the Project is rendered less valuable
thereby.
The Issuer and the Borrower hereby declare their understanding and intent that the covenants, reservations and restrictions set forth herein directly benefit the land (i) by enhancing and increasing the enjoyment and use of the Project by certain Low Income Tenants, (ii) by making possible the obtaining of advantageous financing for the Project, and (iii) by furthering the public purposes for which the Bonds were issued.
12
Section 13. Uniformity; Common Plan. The covenants, reservations and restrictions
hereof shall apply uniformly to the entire Project in order to establish and carry out a common plan for the use, development and improvement of the Project Site.
Section 14. Enforcement. If the Borrower defaults in the performance or observance of any covenant, agreement or obligation of the Borrower set forth in this Regulatory Agreement and such default remains uncured for a period of sixty (60) days after notice thereof is given by the Issuer, the Administrator or the Trustee to the Borrower, then the Issuer, or upon written direction of the Issuer, the Trustee on behalf of the Issuer, may take any one or more of the
following steps:
A. By mandamus or other suit, action or proceeding at law or in equity,
require the Borrower to perform its obligations under this Regulatory Agreement, or enjoin any acts or things which may be unlawful or in violation of the rights of the Issuer, the Administrator or the Trustee hereunder;
B. Have access to, and inspect, examine and make copies of all of the books and records of the Borrower pertaining to the Project;
C. Take such other action at law or in equity as may appear necessary or desirable to enforce the obligations, covenants and agreements of the Borrower under this Regulatory Agreement; or
D. Subject to the terms of the Indenture and the Loan Agreement, require the Trustee to declare a default under the Loan Agreement, to accelerate the Loan, and to proceed to redeem the Bonds in accordance with the Indenture;
pr&dedProvided, however, if the default is such that it can be cured, but not within sixty (60)
days, the Borrower shall be entitled to a greater period of time to cure such default with the
consent of the Issuer, which shall not be unreasonably withheld, in no event to exceed 6 months,
if the Borrower proceeds with due diligence to cure said default and, prior to the end of the initial sixty (60) day period, delivers to the Issuer and the Trustee an Opinion of Bond Counsel to the effect that the failure to cure said default within said sixty (60) day period and the extension of the time to cure of up to 6 months will not adversely affect the continued exclusion
from gross income of interest on the Bonds for federal tax purposes.
The Trustee shall have the right, in accordance with this Section 14 and the provisions of
the Indenture, without the consent or approval of the Issuer, to exercise any or all of the rights
or remedies of the Issuer hereunder and to exercise such rights and remedies within such shorter
period of time as may be required to ensure compliance with the Code; provided that prior to taking any such act the Trustee shall give the Issuer reasonable written notice, which shall not be less than thirty (30) days in advance of its intended action. All fees, costs and expenses of the Trustee incurred in taking any action pursuant to this Section 14 shall be the sole responsibility of the Borrower, and the Trustee shall not be obligated to take any action under this Section 14 whereby it incurs any expense or liability prior to its receipt of indemnity satisfactory to it in accordance with the Indenture.
After the Indenture has been discharged, the Issuer may act on its own behalf to declare an,“Event of Default” hereunder and to exercise any of the enforcement remedies set forth above to the same extent and with the same effect as if taken by the Trustee.
Section 15. Estoppel Certificate. The Issuer and the Trustee agree, upon the reasonable request of the Borrower or its successor in interest, to promptly execute and deliver to the
13
Borrower or its successor in interest or to any potential or actual purchaser, mortgagor or encumbrance of the Project, a written certificate stating, if the same be true, that the Issuer and the Trustee have no knowledge of any violation or default of the Borrower of any of its covenants hereunder, or if there are such violations or defaults, the nature of the same.
Section 16. Indemnification. The Borrower shall indemnify, hold harmless and defend
the Issuer, the Commission, the City of Carlsbad, the Administrator, if not the Issuer
(collectively, the “Issuer Indemnitee”) and the Trustee, including for such purposes, their respective officers, members, commissioners, directors, officials, employees and agents, and with respect to the Issuer, the applicable program participant, from and against all loss, claims, liabilities, obligations, damages, penalties, litigation, suits, judgments, costs, charges and expenses (including without limitation reasonable attorneys, accounting, consulting, engineering, and other fees and expenses, litigation and court costs, amounts paid in settlement and amounts paid to discharge judgments), imposed on, incurred by or asserted against the Issuer Indemnitee or the Trustee and arising from, resulting from, or in any way connected with or related to (i) any cause whatsoever in connection with the approval of tax-exempt financing for the Project or the making or administration of the Loan; (ii) any act or omission of the Borrower
or any of its agents, servants, employees or licensees, in connection with the Loan or the Project;
(iii) the operation, use, occupancy, maintenance, or ownership of the Project (including
compliance with laws, ordinances and rules and regulations of public authorities relating
thereto); (iv) the Trustee’s acceptance or administration of the trusts under and/or the Issuer’s
execution of the Indenture, the Loan Agreement or this Regulatory Agreement, or the exercise or
performance by Issuer Indemnitee of any powers or duties under the Indenture, the Loan
Agreement or this Regulatory Agreement, or (v) the issuance of any Bonds or any certifications
or representations of the Borrower made in connection therewith and the carrying out of any of
the transactions contemplated by the Bonds and this Regulatory Agreement; provided,
however, that this provision shall not require the Borrower to indemnify the Issuer Indemnitee or
the Trustee from any claims, costs, fees, expenses or liabilities arising from the wilIful
misconduct of the Issuer Indemnitee or the willful misconduct or negligence of the Trustee, as
applicable. The indemnity provided in this Section shall include within its scope, without limitation: any and all active or passive negligence on the part of Issuer Indemnitee (other than willful misconduct) or any claims of combined negligence on the part of Issuer Indemnitee and Borrower, to the extent Issuer Indemnitee is not prohibited by law from contracting for indemnification against such active, passive or combined negligent conduct; any claims for wrongful death; any vicarious liability imposed upon the Issuer Indemnitee; and any liability
imposed by law on the Issuer Indemnitee or the Trustee on a strict liability theory or pursuant to any local, state or federal environmental statute, regulation or law; and the Borrower expressly
acknowledges that the scope of its obligation to indemnify, hold harmless and defend the Issuer extends to and includes all loss, costs, damages, expenses, suits, judgments, actions and liabilities of whatsoever nature arising out of or related to the Issuer’s obligations, liabilities and/or responsibilities with respect to the Americans with Disabilities Act of 1990, as
amended, (the “ADA”) insofar as they relate to the Project or arise out of the Issuer’s issuance
of the Bonds, including, but not limited to, any claim that the Project is inaccessible to or that
the Borrower discriminates against disabled individuals; it being expressly agreed by the
Borrower that the issuance of the Bonds and/or the making of the Loan are not willful misconduct excusing the Borrower from its indemnification obligations with respect to the Issuer’s potential ADA liability. It is the express intention of the parties that Borrower shall indemnify Issuer Indemnitee and the Trustee against any and all such liability hereunder, and that the foregoing indemnification with respect to the Borrower shall survive the termination of this Regulatory Agreement.
The Borrower also shall pay and discharge and shall indemnify and hold harmless the Issuer Indemnitee and the Trustee from any taxes (including, without limitation, any ad valorem
14
taxes and sales taxes), assessments, impositions and other charges in respect of the Project (not to include any income taxes applicable to the fees and expenses of the Trustee).
In the event that any action or proceeding is brought against the Issuer Indemnitee or the Trustee with respect to which indemnity may be sought hereunder, the Borrower, upon written notice from the indemnified party, shall assume the investigation and defense thereof, including the employment of counsel selected by the Borrower and reasonably acceptable to the indemnified party and the payment of all expenses related thereto. The Issuer Indemnitee or the
Trustee, as applicable, shall have the right to retain separate defense counsel at the sole cost
and expense of Borrower, upon such indemnitee’s reasonable determination that such separate
counsel is necessary to provide such indemnified party with an adequate defense to any such action or proceeding.
In addition thereto, the Borrower will pay upon demand all of the fees and expenses paid or incurred by the Issuer Indemnitee or the Trustee in enforcing the provisions hereof.
Section 17. Amendments. This Regulatory Agreement may be amended only by a written instrument executed by the parties hereto or their successors in title and by the third
partv beneficiarv named in Section 27 hereof, and duly recorded in the real property records of
the County Recorder of the County.
Section 18. Notice. Any notice required to be given hereunder shall be given by certified or registered mail, postage prepaid, return receipt requested, at the addresses specified in the Indenture, or at such other addresses as may be specified in writing by the parties hereto.
Section 19. Severability. If any provision of this Regulatory Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining portions hereof shall not in any way be affected or impaired thereby.
Section 20. Multiple Counterparts. This Regulatory Agreement n-ray be simultaneously executed in multiple counterparts, all of which shall constitute one and the same instrument,
and each of which shall be deemed to be an original.
Section 21. Limited Liability. All obligations of the Issuer incurred hereunder shall be
limited special obligations, payable solely and only from Bond proceeds and amounts derived by the Issuer under the Loan Agreement. The Issuer shall have no responsibility to monitor the Borrower’s compliance with the terms of this Regulatory Agreement.
Section 22. The Trustee. The Trustee may act as specifically provided herein and in the Indenture. The Trustee shall act as the agent of and on behalf of the Issuer when requested in writing to do so and any act required to be performed by the Issuer as herein provided shall be deemed taken if such act is performed by the Trustee. The Trustee is entering into this Regulatory Agreement solely in its capacity as Trustee under the Indenture and the duties, powers and liabilities of the Trustee in acting hereunder shall be subject to the provisions of the Indenture, including, without limitation, the provisions of Article IX thereof.
The Trustee shall have no responsibility to monitor the Borrower’s compliance with the terms of this Regulatory Agreement. In determinin g whether any default or lack of compliance by, the Borrower exists under this Regulatory Agreement, the Trustee shall not -be required to conduct any investigation into or review of the operations or records of the Borrower. However, if a responsible officer of the Trustee has actual knowledge of non-compliance or default hereunder, the Trustee shall immediately notify the Issuer and the . . ,4,-l- &
Administrator of any non-compliance or default hereunder. The Administrator and/or the
15
Issuer will notify the Trustee if, in its review of the Borrower’s certifications and notices hereunder, it shall discover a default by the Borrower hereunder.
After the date on which no Bonds remain outstanding as provided in the Indenture, the Trustee shall have no duties or responsibilities under this Regulatory Agreement, and all references herein to the Trustee shall be deemed references to the Issuer.
Section 23. Attorney’s Fees. In case any action at law or in equity, including an action
for declaratory relief, is brought against the Borrower to enforce the provisions of this Regulatory Agreement, the Borrower agrees to pay reasonable attorney’s fees and other reasonable expenses incurred by the Issuer, the Commission, the Trustee and/or the Administrator in connection with such action.
Section 24. Administrator. In its sole discretion, the Issuer may appoint an
Administrator to serve on its behalf in enforcing and monitoring the Borrower’s compliance with its obligations hereunder. In connection with the appointment of any such Administrator, the Borrower agrees, if requested, that it will enter into an administration agreement with such Administrator and the Borrower hereby agrees to pay any compensation due to any such Administrator with respect to the monitoring of the Borrower’s compliance with the provisions of this Agreement. The Issuer hereby appoints Urban Futures, Inc. as the initial Administrator, who shall administer the Project pursuant to the provisions hereof and of the-2
Administration Agreement, da-ted as of I A ‘999 executed, by m&
Issuer and the Administrator.
Section 25. Payment of Fees. Notwithstanding any prepayment of the Loan and
notwithstanding a discharge of the Indenture, throughout the term of this Regulatory Agreement, the Borrower shall continue to pay to the Issuer its administrative fee described below and in the event of default, to the Issuer and to the Trustee reasonable compensation for any services rendered by either of them hereunder and reimbursement for all expenses reasonably incurred by either of them in connection therewith.
The Borrower shall pay to the Trustee for remittance to the Issuer an annual administrative fee in an annual amount equal to of one percent (- %) of the - original principal amount of the Bonds (the “Issuer’s Fee”), payable in equal semiannual installments in arrears, on each and commencing . The Issuer Fee referenced in this section shall in no way limit amounts payable by the Borrower under Section 16 or 23 hereof, or arising in connection with the Issuer’s
or Trustee’s enforcement of the provisions of this Regulatory Agreement. In addition, the
Borrower shall pay to the Commission on the Issue Date a fee in the amount of $10,000 in
pavment of administrative costs and exuenses incurred bv the Commission in connection with
the issuance and deliverv of the Bonds and the execution and deliverv hereof.
In the event that the Bonds are prepaid in part or in full prior to the end of the term of this Regulatory Agreement, the Issuer’s Fee for the remainder of the term of this Regulatory
Agreement, at the option of the Issuer, shall be paid by the Borrower at the time of the
prepayment of the Bonds and shall be a lump sum amount equal to the present value (based on
a discount rate equal to the bond rate as defined by the Issuer at the time of prepayment) of the
Issuer’s fee for the number of years remaining under this Regulatory Agreement.
After the date on which no Bonds remain outstanding, as provided in the Indenture, the Trustee shall no longer have any duties or responsibilities under this Regulatory Agreement and
16
all references to the Trustee in this Regulatory Agreement shall be deemed references to the
Issuer.
Section 26. Governing Law. This Regulatory Agreement shall be governed by the laws of
the State of California.
Section 27. Third Party Beneficiaries. The Co mmission is intended to be and shall be a third party beneficiary of this Regulatory Agreement, and the Commission shall have the right
(but not the obligation) to enforce the terms of this Regulatory Agreement and to pursue any
remedy at law or in equity or any such other action as shall be necessary or desirable to enforce
such provisions.
17
IN WITNESS WHEREOF, the Issuer, the Trustee and the Borrower have executed this
Regulatory Agreement by duly authorized representatives, all on the date first above written.
CALIFORNIA STATEWIDE
BOMMUNITIES
DEVELOPMENT AUTHORITY, as Issuer
By:
Member
ARCHSTONE COMMUNITIES TRUST, as
Borrower
U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee
By: Authorized Officer
18
STATE OF CALIFORNIA ss COUNTY OF )
on before me, , Notary Public, personally
appeared personally known to me or 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.
WITNESS my hand and official seal.
STATE OF CALIFORNIA ss COUNTY OF )
on before me, , Notary Public, personally
appeared personally known to me or 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.
WITNESS my hand and official seal.
STATE OF CALIFORNIA 1
COUNTY OF
on before me, , Notary Public, personally
appeared personally known to me or 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.
WITNESS my hand and official seal.
EXHIBITA
LEGAL DESCRIPTION OF PR0JEc-T SlTE
All of that certain real property together with all easement, rights and appurtenances
thereto, and all improvements now or hereafter located thereon, situated in the County of
Ventura, State of California and described as follows:
Exhibit A
Page 1
DHtBITB
CERTIFICATION OF CONTINUING PROGRAM COMPLIANCE
The undersigned, being of formed under the laws of the State of (the “Owner”) has read and is thoroughly familiar with the provisions of the various documents associated with the Owner’s participation in California
Statewide Communities Development Authority (the “Issuer”) Multifamily Housing Program, such documents including:
1. the Regulatory Agreement and Declaration of Restrictive Covenants dated as of June
1,1999 among the Owner, the Issuer and U.S. Bank Trust National Association, as trustee (the
Trustee); and
2. the Loan Agreement dated as of June 1,1999 between the Owner and the Issuer.
As of the date of this Certificate, the following percentages of completed residential
units in the Project (i) are occupied by Low Income Tenants (as such terms are defined in the Regulatory Agreement) or (ii) are currently vacant and being held available for such occupancy and have been so held continuously since the date a Low Income Tenant vacated such unit; as indicated:
Occupied by
Low Income Tenants -- (at Affordable Rents) %; Unit Nos.
Held vacant for occupancy continuously since last occupied by Low Income Tenant or
Lower-Income Tenant:
Vacant Units:
Low Income Tenants -- %; Unit Nos.
Exhibit B
Page 1
The undersigned hereby certifies that the Owner is not in default under any of the terms and provisions of the above documents.
Date:------------- PTR-CALIFORNIA HOLDINGS (3) INCORPORATED
Exhibit B
Page 2 5%
EXl3IBlT.C
INCOME COMPUTATION AND CERTIFICATION
NOTE TO APARTMENT OWNER- This form is designed to assist you in
computing Annual Income in accordance with the method set forth in the Department of
Housing and Urban Project (“HUD”) Regulations. You should make certain that this form is at
all times up to date with the HUD Regulations.
Re: [Address of Apartment Building]
I/We, the undersigned state that I/we have read and answered fully, frankly and personally each of the following questions for all persons who are to occupy the unit being applied for in the above apartment project. Listed below are the names of all persons who
intend to reside in the unit:
Monthly Gross
Names of Members to Head of Household Social Security Number Age Amount of
Income Computation
The total anticipated income, calculated in accordance with the provisions of this
Certification, of all persons over the age of 18 years listed above for the 12-month period
beginning the date that I/we plan to move into a unit is $
Included in the total anticipated income listed above are:
(a) all wages and salaries, overtime pay, commissions, fees, tips and bonuses and other compensation for personal services, before payroll deductions;
(b) the net income from the operation of a business or profession or from the rental of real or personal property (without deducting expenditures for business expansion or amortization of capital indebtedness or any allowance for depreciation of capital assets),
(c) interest and dividends (including income from assets excluded below);
Exhibit C Page 1 5
(d) the full amount of periodic payments received from social security, annuities, insurance policies, retirement funds, pensions, disability or death benefits and other similar types of periodic receipts, including any lump sum payment for the delayed start of a periodic payment;
(e) payments in lieu of earnings, such as unemployment and disability compensation, workmen’s compensation and severance pay;
(f) the maximum amount of public assistance available to the above persons other than the amount of any assistance specifically designated for shelter and utilities;
(g) periodic and dete rminable allowances, such as alimony and child support payments
and regular contributions and gifts received from persons not residing in the dwelling;
(h) all regular pay, special pay and allowances of a member of the Armed Forces (whether or not living in the dwelling) who is the head of the household or spouse; and
(i) any earned income tax credit to the extent that it exceeds income tax liability.
Excluded from such anticipated income are:
(a) casual, sporadic or irregular gifts;
(b) amounts which are specifically for or in reimbursement of medical expenses;
(c) lump sum additions to family assets, such as inheritances, insurance payments (including payments under health and accident insurance and workmen’s compensation),
capital gains and settlement for personal or property losses;
(d) amounts of educational scholarships paid directly to the student or the educational institution, and amounts paid by the government to a veteran for use in meeting the costs of tuition, fees, books and equipment. Any amounts of such scholarships or payments to veterans not used for the above purposes are to be included in income;
(e) special pay to a household member who is away from home and exposed to hostile
fire;
(f) relocation payments under Title II of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970;
(g) foster child care payments;
(h) the value of coupon allotments for the purchase of food pursuant to the Food Stamp Act of 1977;
(i) payments to volunteers under the Domestic Volunteer Service Act of 1973;
(j) payments received under the Alaska Native Claims Settlement Act;
(k) income derived from certain submarginal land of the United States that is held in trust for certain Indian tribes;
Exhibit C
Page 2 53
(i) payments or allowances made under the Department of Health and Human Services’ Low-Income Home Energy Assistance Program;
(m) payments received from the Job Training Partnership Act;
(n) income derived from the disposition of funds of the Grand River Band of Ottawa
Indians; and
(0) the first $2,000.00 of per capita shares received from judgment funds awarded by the Indian Claims Commission or the Court of Claims.
Do the persons whose income or contributions are included in item 6 above:
have savings, stocks, bonds, equity in real property or other form of capital investment (excluding the values of necessary items of personal property such as furniture and automobiles
and interests in Indian trust land); or
No -Yes -
have they disposed of any assets (other than at a foreclosure or Credit Bankruptcy sale) during the last two years at less than fair market value?
No -Yes -
If the answer to (a) or (b) above is yes, does the combined total value of all such assets owned or disposed of by all such persons total more than !$5,000?
No -Yes -
(d) If the answer to (c) above is yes, state:
(1) the amount of income expected to be derived from such assets in the 12-month period beginning on the date of initial occupancy in the unit that you propose to rent:
(2) the amount of such income, if any, that was included in item 6 above:
Are all of the individuals who propose to reside in the unit full-time students*?
No -Yes -
(a) *A full-time student is an individual enrolled as a full-time student during each of 5
calendar months during the calendar year in which occupancy of the unit begins at an educational organization which normally maintains a regular faculty and curriculum and normally has a regularly enrolled body of students in attendance and is not an individual pursuing a full-time course of institutional or farm training under the supervision of an
Exhibit C
Page 3
accredited agent of such an educational organization or of a state or political subdivision thereof.
(b) If the answer to 8(a) is yes, is at least 1 of the proposed occupants of the unit a husband and wife entitled to file a joint federal income tax return?
No -Yes -
9. Neither myself nor any other occupant of the unit I/we propose to rent is the owner
of the rental housing project in which the unit is located (hereinafter the “Borrower”), has any
family relationship to the Borrower; or owns directly or indirectly any interest in the Borrower.
For purposes of this paragraph, indirect ownership by an individual shall mean ownership by a family member, ownership by a corporation, partnership, estate or trust in proportion to the ownership or beneficial interest in such corporation, partnership, estate or trustee held by the individual or a family member; and ownership, direct or indirect, by a partner of the individual.
10. This certificate is made with the knowledge that it will be relied upon by the Borrower to determine maximum income for eligibility to occupy the unit, and I/we declare that all information set forth herein is true, correct and complete and based upon information I/we deem reliable and that the statement of total anticipated income contained in paragraph 6 is reasonable and based upon such investigation as the undersigned deemed necessary.
11. I/we will assist the Borrower in obtaining any information or documents required to verify the statements made herein, including either an income verification from my/our present
employer(s) or copies of federal tax returns for the immediately preceding calendar year.
12. I/we acknowledge that I/we have been advised that the making of any
misrepresentation or misstatement in this declaration will constitute a material breach of my/our agreement with the Borrower to lease the unit and will entitle the Borrower to prevent or terminate my/our occupancy of the unit by institution of an action for ejection or other
appropriate proceedings.
13. Housing Issuer Statistical Information (Optional - will be used for reporting
purposes only)
Race (Head of Household) White Black Asian
Hispanic Native American
Physical Disability Yes No
Other
Exhibit C
Page 4
I/we declare under penalty of perjury that the foregoing is true and correct.
Executed this day of in the County of , California.
Applicant
Applicant
Exhibit C
Page 5
Signature of all persons over the age of 18 years listed in number 2 above required]
FOR COMPLETION BY APARTMENT OWNER ONLY:
1 .-Calculation of eligible income:
(a) Enter amount entered for entire household in 6 above:
$----..--------- (b) If answer to 7(c) above is yes, enter the total amount entered in 7(d)(l), subtract
from that figure the amount entered in 7(d)(2) and enter the remaining balance
($-----------A
(2)-Multiply the amount entered in 7(d)(l) times the current passbook savings rate to determine what the total annual earnings on the amount in 7(d) would be if invested in passbook savings ($ ), subtract from that figure the amount entered in 7(d)(2)
and enter the remaining balance ($
(3) Enter at right the greater of the amount calculated under (1) or (2) above:
$--------------
(4)-TOTAL ELIGIBLE INCOME (Line 1.a plus line l.b(3):
$-----------
(5) The amount entered in l(c):
(6) _ Qualifies the applicant(s) as a Low-Income Tenant(s) [Very Low Income Tenant(s)]. -Does not qualify the applicant(s) as a Low-Income Tenant(s) [Very Low Income Tenant(s)].
(6) Number of apartment unit assigned:
$----------
Bedroom Size: Rent:
-Tenant-Paid Utilities:
Water Gas Electric
Trash Other (list Type)
(7) Was this apartment unit last occupied for a period of 31 consecutive days by persons whose aggregate anticipated annual income as certified in the above manner upon their initial occupancy of the apartment unit qualified them as Low-Income Tenants [or Very Low Income Tenant(s)]?
No ---Yes ~ (8) Method used to verify applicant(s) income:
Employer income verification.
Social Security Administration verification
Exhibit C
Page 6
Department of Social Services verification
Copies of tax returns.
Other ( )
Manager
INCOME VERIFICATION
(for employed persons)
The undersigned employee has applied for a rental unit located in a project financed under the California Statewide Communities Development Authority Multifamily Housing Program (Moorpark Le Club Apartments) for persons of low income. Every income statement of a prospective tenant must be stringently verified. Please indicate below the employee’s
current annual income from wages, overtime, bonuses, commissions or any other form of
compensation received on a regular basis.
Annual wages
Overtime
Bonuses
Commissions
Total current income
I hereby certify that the statements above are true and complete to the best of my
knowledge.
Date:
Signature: Title:
I hereby grant you permission to disclose my income to in order
that they may determine my income eligibility for rental of an apartment located in their project which has been financed under the California Statewide Communities Development Authority Multifamily Housing Program (Moorpark Le Club Apartments).
Date:
Signature
Exhibit C
Page 7
Please send form to:
INCOME VERIFICATION (for Social Security recipients)
TO: SOCIAL SECURITY ADMINISTRATION
Ladies and Gentlemen:
I have applied for a rental unit located in a project financed under the C*&
California Statewide Communities Development Authority Multifamily Housing Program
( Apartments) for persons of very low income. Every income statement of a
prospective tenant must be stringently verified. In connection with my application for a rental unit, I hereby give my consent to release to the
specific information requested below.
Date:
Signature
Social Security No.: Address (Print):
Name (Print):
Monthly Benefits Began/ Will Begin: Social Security Benefit Amount:$ Other Benefit(s): Amount:$ Medicare Deduction:$ Are benefits expected to change? No -Yes - If Yes, please state date and amount Date: change: of Amount: $
If recipient is not receiving full benefit amount, please indicate reason and date recipient
will start receiving full benefit amount:
Reason: Date of Resumption: Amount:$
Date:
Signature:
Name (Print):
Title:
Telephone:
Exhibit C Page 8 54
Please send form to:
INCOME VERIFICATION (for Department Social Services recipients)
TO: CALIFORNIA DEPARTMENT OF SOCIAL SERVICES
Ladies and Gentlemen:
I am receiving assistance through your office. I have applied for a rental unit located in a
project financed under the California Statewide Communities Development Authority Multifamily Housing Program (Moorpark Le Club Apartments) for persons of very low income. Every income statement of a prospective tenant must be stringently verified. In connection with my application for a rental unit, I hereby authorize the Department of Social Services to release to the specific information requested below:
Date:
Caseload Number: Name (Print):
Case Number: Case Worker
1. Number of persons included in budget:
2. Total monthly budget $ (a) Amount of grant $ Date aid last began:
(b) Other income and source:
(c) Is other income included in total budget? No -----Yes -
3. Please specify type of aid: (AFDC, FR, Food Stamps, ANB, Medical, Etc.)
4. If recipient is not receiving full grant, please indicate reason: Overpayment due to client’s failure to report other income Computation error
-----Other-------------------
Date when full grant will resume:
Date:
Exhibit C
Page 9
Case Worker’s Signature:
Telephone: District Office:
Your very early response will be appreciated.
Please return form to:
____-----------__ -__---------- INCOME VEFUFICATION (for self-employed persons)
I hereby attach copies of my individual federal and state income tax returns for the immediately preceding calendar year and certify that the information shown in such income tax returns is true and complete to the best of my knowledge.
Date: Signature
Exhibit C
Page 10
PROOF OF PUBLICATION
(2010 8 2011 C.C.P.)
STATE OF CALlFORNlA
County of San Diego ,
I am a citizen of the United States and a resident of
the County aforesaid: I am over the age of eighteen
years and not a party to Of interested in the above-
entitled matter. I am the principal clerk of the printer of
North County Times
formerly known as the Blade-Citizen and The
Times-Advocate and which newspapers have been
adjudged newspapers of general circulation by the
Superior Court of the County of San Diego, State of
California, under the dates of June 30, 1989
(Blade-Citizen) and June 21, 1974 (Times-
Advocate) case number 171349 (Blade-Citizen)
and case number 172171 (The Times-Advocate)
for the cities of Escondido, Oceanside, Carlsbad,
Solana Beach and the North County Judicial
District; that the notice of which the annexed is a
printed copy (set in type not smaller than
nonpareil), has been published in each regular and
entire issue of said newspaper and not in any
supplement thereof on the following dates, to-wit:
I certify (or declare) under penalty of perjury that
the foregoing is true and correct.
.sazl Marcos Dated at California, this /r 9 day
NORTH COUNTY TIMES
This space is for the County Clerk’s Filing Stamp
Proof of Publication of
---____-------------------
NOTICE OF JOINT PUBLIC HEARING TO CONSIDER REFUND OF
MULTI-FAMILY REVENUE BONDS FOR SEASCAPE APARTMENTS
NOTICE IS HEREBY GIVEN that the Cii Council and the Housing and Redevelopment Commission of the City of Carlsbad at a joint meeting on July 13, 199% will hold a public heartng and consider approval Of the issuance by the California Statewide Communities Development Authority of multifamily housing revenue refunding bonds in the aggregate principal amOunt Of Fifteen M~llnm One Hundred Fifteen Thousand DOlIarS ($15.115,000), the proceeds of which will be @Flied to the refinancing of the acquisition and construction of a multifamily residential rental facility commonly known as the Seascape Apartments (the “PmjeW) located at 6938 Seascape Driie in the City of Cadsbad,Califomie.
The owner of the Project is Archstone COmWnitiSS Trust, a Maryland real estate investment trust.
All those interested in matters related to the isSUaX3 Of the revenue bonds are invited to attend and be heard at the meeting, which will commence at 6 pm.. and will be held in the Council Chambers, located at 1200 Cadsbad Village Drive, Carlsbad, California. If you have any quesbons regarding this matter, please call Craig Ruiz Of the City of Cartsbad Housing and Redevelopment Department at (760) 434-2617, or Lawrence Tonomura of the Cakfomia Siatewlde Communities Development Authority, at (925) 933-9229.
CARLSBAD CITY COUNCIL
Legal 63805 July 1,1999
. .
NOTICE OF JOINT PUBLIC HEARING ~
TO CONSIDER REFUND OF MULTI-FAMILY REVENUE BONDS
FOR SEASCAPE APARTMENTS
NOTICE IS HEREBY GIVEN that the City Council and the Housing and Redevelopment
Commission of the City of Carlsbad at a joint meeting on July 13, 1999, will hold a public hearing
and consider approval of the issuance by the California Statewide Communities Development
Authority of multifamily housing revenue refunding bonds in the aggregate principal amount of
Fifteen Million One Hundred Fifteen Thousand Dollars ($15,115,000), the proceeds of which will
be applied to the refinancing of the acquisition and construction of a multifamily residential rental
facility commonly known as the Seascape Apartments (the “Project”) located at 6938 Seascape
Drive in the City of Carlsbad, California.
The owner of the Project is Archstone Communities Trust, a Maryland real estate
investment trust.
All those interested in matters related to the issuance of the revenue bonds are invited to
attend and be heard at the meeting, which will commence at 6 p.m., and will be held in the
Council Chambers, located at 1200 Carlsbad Village Drive, Carlsbad, California. If you have
any questions regarding this matter, please call Craig Ruiz of the City of Carlsbad Housing and
Redevelopment Department at (760) 434-2817, or Lawrence Tonomura of the California
Statewide Communities Development Authority, at (925) 933-9229.
CARLSBAD CITY COUNCIL
PUBLISH: July 1, 1999
City of Carlsbad
July 23, 1999
Orrick, Herrington & Sutcliffe LLP
Ana Marie del Rio, Esq.
Old Federal Reserve Bank Building
400 Sansome Street
San Francisco, CA 94111
MULTIFAMILY HOUSING REFENUE REFUNDING BONDS FOR THE
REFINANCING OF SEASCAPE VILLAGE APARTMENT6
Enclosed for your reference are certified copies of Carlsbad City Council
Resolution No. 99-257 and Housing & Redevelopment Commission Resolution
No. 311. These documents went before the Joint Carlsbad City Council and
Housing and Redevelopment Commission on July 13, 999, where the enclosed
Resolutions were adopted, approving the matter referenced above.
Also enclosed is a copy of the proof of legal advertising of a Joint Public Hearing.
If you have questions concerning the contract, 2810 extension 2817.
%=W-
Kathleen D. Shoup
Sr. Office Specialist
1200 Carlsbad Village Drive - Carlsbad, CA 92008-l 989 - (760) 434-2808 @