HomeMy WebLinkAboutAGENDA REPORT 1999 0505 CC REG ITEM 09CTO:
CITY OF MOORPARK
AGENDA REPORT
Honorable City Council
ITEM 4, Ci9
CITY OF f,-
City Council Meeting
96
r
ACTION': / irb tied an-of
FROM: John E. Nowak, Assistant City Manager
Prepared by: Urban Futures, Inc.
DATE: April 26, 1999 (City Council Meeting of 05/05/99)
SUBJECT: Consider Holding a Tax Equity Fiscal Responsibility
Act Hearing, and Adoption of Resolution No. 99
Approving the Amended and Restated Joint Exercise of
Powers Agreement Relating to the California Statewide
Communities Development Authority; Amendment of an
Indenture of Trust; and Issuance of Multifamily
Housing Revenue Refunding Bonds.
BACKGROUND: In 1992 the City of Moorpark issued $21,700,000 in
Variable Rate Demand Multifamily Housing Refunding Revenue Bonds
(Le Club Apartment Project) 1992 Series A (the "Bonds "). The
proceeds of the Bonds were used by the City to fund a loan (the
"Loan ") to Moorpark Le Club Ltd., a California limited
partnership (the "Developer ") that constructed 370 units at 51
Majestic Court in the City of Moorpark.
The tax - exempt bonds were originally issued for the development
in exchange for the Developer guaranteeing that at least 20
percent of the units would be set aside for families with income
that met the definitions of low- and moderate - incomes.
PTR- California Holdings(3) Incorporated, a Delaware corporation
4/26/99CAMY DOCUMENTSWRA050599.STRDOC
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TEFRA Hearing
Meeting of 05 May 1999
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(the "Borrower ") has requested that the City of Moorpark assist
in the refunding of the 1992 Bonds into a fixed rate structure as
opposed to the Bonds' current variable rate mode.
A Tax Equity Fiscal Responsibility Act (TEFRA) public hearing is
required as part of the funding process.
DISCUSSION: When the Bonds were issued in 1992, the City of
Moorpark acted as a conduit issuer. What this means is that the
City, with its ability to issue tax - exempt obligations, issued
the Bonds and loaned the proceeds to the Developer. The
Developer paid all of the expenses and fees related to the
issuance, plus significant fees to the City.
The 1992 Bonds, as is true of the proposed re- issuance, are not,
nor have they ever been an obligation of the City of Moorpark,
nor of the Redevelopment Agency. The security for the Bonds has
always been the revenue produced by the property's income stream
and the real estate itself.
The Borrower is requesting that the City of Moorpark join the
California Statewide Communities Development Authority (CSCDA)
who will issue the refunding Bonds.
Pursuant to the provisions of the Joint Powers Act, commencing
with Section 6500 of the California Government Code (the "JPA
Act ") , various California cities, counties and districts have
entered into a joint exercise of powers agreement (the
"Agreement ") pursuant to which CSCDA was organized. As of this
date, 175 cities, 47 counties, and over 45 districts or agencies
of some type, are Program Participants of CSCDA.
Once the refunding Bonds are issued by CSCDA the City of Moorpark
will no longer have an obligation to administer the Project's
regulatory agreement or to assume any other major administrative
obligations related to the Project.
4 /26 /99CAMY DOCUMENTSIMRA050599.STF.DOC _2_
TEFRA Hearing
Meeting of 05 May 1999
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The Borrower has agreed to pay to the City a one -time financing
fee in the amount of $54,250, due and payable upon the execution
and delivery of the Bonds. In addition the Borrower has paid the
City a one -time fee of $10,000 in repayment of expenses for staff
and its financial advisor costs related to issuance of the Bonds,
plus an annual fee of $21,700 during the term of the bonds
beginning June 1, 2000. These payments are guaranteed in a
"Regulatory Agreement and Declaration of Restrictive Covenants"
that is a part of the.bond approval and sale. If the bondholder
desires to refinance the bond again in the future with tax - exempt
financing, the City's approval would again be required.
In the past the annual monitoring of the Project was provided
under contract by Urban Futures, Inc., the City's financial
advisor. Under the new JPA arrangement, Urban Futures, Inc., the
nation's largest bond administrator, will continue to monitor the
Project under its master monitoring agreement with CSCDA.
Prior to taking action on the resolution, the City Council is
required to hold a public hearing on TEFRA. Any comments
received at the hearing are to be forwarded with the Council's
action to bond counsel.
RECOMMENDATION: Staff recommends the City Council:
(1) Open the public hearing for the Tax Equity Fiscal
Responsibility Act Hearing and take public testimony; and
(2) Close the public hearing and record any comments received;
and
(3) Adopt Resolution No. 99- Approving, Authorizing and
Directing Execution of an Amended and Restated Joint
Exercise of Powers Agreement Relating to the California
Statewide Communities Development Authority; the Amendment
of an Indenture of Trust; and approving the Issuance of
Multifamily Housing Revenue Refunding Bonds.
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TEFRA Hearing
Meeting of 05 May 1999
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Attached: 1. Resolution No. 99-
2. Amended and Restated Joint Exercise of Powers
Agreement
3. First Supplemental Indenture of Trust
4. Regulatory Agreement and Declaration of Restrictive
Covenants
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000056
RESOLUTION NO. 99-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
MOORPARK, CALIFORNIA APPROVING, AUTHORIZING AND
DIRECTING EXECUTION OF AN AMENDED AND RESTATED JOINT
EXERCISE OF POWERS AGREEMENT RELATING TO THE
CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT
AUTHORITY AND THE AMENDMENT OF AN INDENTURE OF
TRUST, AND APPROVING THE ISSUANCE OF MULTIFAMILY
HOUSING REVENUE REFUNDING BONDS
WHEREAS, the City of Moorpark, California (the "City "), 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 City Council the form of
the Agreement; and
WHEREAS, the City proposes to participate in a Program and
desires that a 370 -unit multifamily residential housing facility
located at 51 Majestic Court, Moorpark, California, commonly known
as Le Club Apartments .(the "Project "), originally financed with
the proceeds of multifamily housing revenue bonds issued by the
City (the "Prior Bonds "), be refinanced pursuant to the Program
with the proceeds of a series of multifamily housing revenue
refunding bonds (the "Bonds ") to be issued by the Authority; and
WHEREAS, PTR- California Holdings (3) Incorporated, the owner
of the Project (the "Developer "), has requested that the City
amend the provisions of the Indenture of Trust, dated as of
November 1, 1992 (the "Prior Indenture "), by and between the City
and U.S. Bank Trust National Association, as successor trustee
(the "Prior Trustee ") to facilitate the redemption of the Prior
Bonds; and
WHEREAS, the Prior Indenture prohibits the legal defeasance
of the Prior Bonds with Available Amounts (as defined in the
Indenture) while the Prior Bonds bear interest at a Variable Rate
and the definition of Available Amounts excludes proceeds of
refunding bonds as a bankruptcy -proof source of the payment of the
redemption price of the Prior Bonds; and
Resolution No 99-
Page 2
WHEREAS, Section 9.01 of the Prior Indenture provides that
the provisions thereof, the City and the Prior Trustee may enter
into an indenture supplemental thereto for the purpose of curing,
correcting or supplementing any defective provision contained in
the Indenture not inconsistent with the Indenture and which shall
not adversely affect the interests of the holders of the Prior
Bonds; 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
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
WHEREAS, it is in the public interest and for the public
benefit that the City do so; and
WHEREAS, the Agreement has been filed with the City, and the
members of the City Council of the City, with the assistance of
its staff, have reviewed said document.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK DOES
HEREBY RESOLVE AS FOLLOWS:
Resolution No. 99-
Page 3
SECTION 1. The Agreement is hereby approved and the Mayor or
the City Manager, or any designee thereof, is hereby authorized
and directed to execute said document, and the City Clerk is
hereby authorized and directed to attest thereto.
SECTION 2. The Council hereby approves the issuance of the
Bonds by the Authority for the purpose of refinancing the Project
and redeeming the Prior Bonds, and ratifies all actions heretofore
taken with respect to the Bonds and the Project with the
understanding the Authority will issue the Bonds subject to the
inclusion of the City as a third party beneficiary in the
Regulatory Agreement and Declaration of Restrictive Covenants to
be executed and delivered in connection with the issuance and
delivery of the Bonds. It is the purpose and intent of the
Council that this resolution constitutes approval of the Bonds for
the purposes of Section .9 of the Agreement.
SECTION 3. The First Supplemental Indenture of Trust, dated
as of May 1, 1999 (the "First Supplement "), by and between the
City and the Prior Trustee, in the form on file with the City
Clerk, is hereby approved. The Mayor, City Manager and Finance
Director (the "Designated Officers "), and each of them, are hereby
authorized and directed, for and in the name and on behalf of the
City, to execute and deliver the First Supplement, and the City
Clerk, or any deputy thereof, is hereby authorized to attest the
signature of the Designated Officers, in substantially said form,
with such additions thereto or changes therein as are recommended
or approved by the Designated Officers upon consultation with bond
counsel, including such additions or changes are necessary or
advisable to effect the intent of this Resolution, the approval of
such additions or changes to be conclusively evidenced by the
execution and delivery by the City of the First Supplement.
SECTION 4. The Designated Officers of the City 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
financing approved hereby.
0000'S"9
Resolution No. 99-
Page 4
SECTION 5. 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 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.
SECTION 6. 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.
SECTION 7. The City Clerk of the City 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 del Rio, Esq.
Orrick, Herrington & Sutcliffe LLP
Old Federal Reserve Bank Building
400 Sansome Street
San Francisco, California 94111
OGUCA)
Resolution No. 99
Page 5
SECTION 8. Effective Date. This Resolution shall take
effect from and after the date of its passage and adoption.
SECTION 9. The City Clerk shall certify to the adoption of
this Resolution and shall cause a certified Resolution to be filed
in the book of original Resolutions.
PASSED AND ADOPTED THIS 5th day of May 1999.
Patrick Hunter, Mayor
ATTEST:
Deborah S. Traffenstedt, City Clerk
AXACI
AMENDED AND RESTATED
JOINT EXERCISE OF POWERS AGREEMENT
RELATING TO THE CALIFORNIA STATEWIDE COMMUNITIES
DEVELOPMENT AUTHORITY -
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 "):
WITNESSETH
WHEREAS, pursuant to Title 1, Division 7, Chapter-5
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 5500 of the
Government Code of the State of California, and
WHEREAS, each of the Program Participants is
empowered to `promote economic development, including, without
14- nation,- 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 ("CSAC "), together with the
California Manufacturers Association, has established the
Bonds for Industry program (the "Program ").
0000C1ti
WHEREAS, in furtherance of the Program, certain
California counties (collectively, 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 it the administration of the Authority;
and
WHEREAS, the Initial Participants have determined
to specifically authorize 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
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 benef_t 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 Program Participants each
possess the powers referred to 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, including the rights to issue Bonds through
industrial development authorities under the Act, or as
otherwise permitted by law.
Within the various jurisdictions 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 date
hereof and shall continue in full force and effect for a
period of forty (40) years from the date hereof, or until such
time as it is terminated in writing by all the Program
Participants; provided, however, that this Agreement shall not
terminate or be terminated until the date 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,
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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60006
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.
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. -,And 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
Commission in place of and during the absence or disability of
such regularly appointed member. All references in this '
Ig.e£ment to any member of the Commission shall be deemed to
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.
Members and alternate members of the Commission
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 determine that such expenses
shall be reimbursed and there are unencumbered-funds available
for such purpose.
C: OFFICERS; DUTIES; OFFICIAL BONDS.
The Commission shall elect a Chair, a Vice - Chair,
and a Secretary of the Authority from among its members to
serve.for such term as shall be determined by the Commission.
The Com7,,ission shall appoint one or more of its officers or
4 0CUG5
employees to serve as treasurer, auditor,
the Authority (the "Treasurer ") pursuant
the Joint Exercise of Powers Act to serve
shall be determined by the Commission.
and controller of
to Section 6505.6 of
for such term as
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 the 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
requirement by filing an official bond in at least said amount
obtained in connection with another public office.
The Commission shall have the power to appoint such
ct: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 Commission 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 name and on behalf of
the Commission or the Authority.
D. MEETINGS OF THE COMMISSION.
(1) Regular Meetings.
The Commission shall
meetings; provided, however, it
regular meeting each year. The
holding of the regular meetings
of the Commission and a copy of
with each party hereto.
provide for its regular
shall hold at least one
date, hour and place,of the
shall be fixed by resolution
such resolution shall be filed
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(2) Special Meetings.
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'Act.
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.'
The Secretary of the Authority shall cause to be
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) Quoru m.
A majority of the members of the Commission which
includes 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-may 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.
Section 4. Powers.
The Authority shall have any and all powers relating
to economic development authorized 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 retentiop 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
6 U0C0r►'
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 to,
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 or
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.
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.
Section 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 the date of this Agreement,
the period from July l 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.
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Section B. 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 surplus money on
hand shall be returned in proportion to the contributions made
by the Program Participants.
Section 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 services of bond counsel, financing consultants
and other consultants and advisors working on the projects
and /or.their financing shall be used by the Authority. The
fees and 'expenses of such counsel, consultants, advisors, and
the expenses of CSAC, LCC, and the Commission shall be paid
from the proceeds of the Bonds or any other unencumbered funds
of the Authority available for such purpose.
Section 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..
Section 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
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Authority. The Bonds shall be only special obligations of the
Authority, 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 taming 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, LCC, 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 Bonds.
Section 10. Accounts and Reports.
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 accounting
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 certified 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_
17an�
0
GOCC0 70
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.
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 give 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 Indenture "shall
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.
Section 11. Funds.
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
Alithnrity 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 12. 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.
Section 13. Withdrawal 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'resuit 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 shall 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.
Section 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 manner
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 cise 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.
Section 15. Contributions 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 repayment, 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.
Section 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 officers, agents or
employees of Program Participants when performing their
11
000072'r
6
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 of 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 extraterritori ally under the-
provisions of this Agreement.
Section 17. Amendments.
Except as provided in Section 13 above, this
Agreement shall not be amended, modified, or altered except by
a writte,-z\ instrument duly executed by each of the Program
Participants.
Section 18. 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 :00 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
of the governing body of each such Initial Participant
approving this Agreement and the execution and delivery hereof.
Section 19. Partial Invalidity.
If any one or more of the terms, provisions,
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.
This Agreement shall be binding upon and shall inure
to the benefit of the successors of the parties hereto.
Except to the extent expressly provided herein, no party may
assign any right or obligation hereunder without the consent
of the other parties.
Section 21. Miscellaneous.
This Agreement may be executed in several
counterparts, each of which shall be an original and all of
which shall constitute but one and the same instrument.
12 C00073
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 California,
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 be executed and attested by their proper
officers thereunto duly authorized, and their official seals
to be hereto affixed, as of the day and year first above
written.
Program Participant:
(SEAL)
By
Name: Patrick Hunter
Title: Mayor
ATTEST:
By "
Name: Deborah S. Traffenstedt
Title: City Clerk
0000 4
33
0000 4
ATTACHMENT A
AMENDMENT TO A JOINT POWERS AGREEMENT
FOR THE
CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY;
270 PARTICIPANTS AS OF June 8, 1998
CITIES (173
City of Agoura Hills
City of Cypress
City of Alhambra
Town of Danville
City of Albany
City of Davis
City of Altascadero
City of Dos Palos
City of Anaheim
City of El Cajon
City of Arcadia
City of El Centro
City of Auburn
City of Emeryville
City of Avalon
City of Encinitas
City of Azusa
City of Escondido
City of Bakersfield
City of Etna
City of Banning
City of Eureka
City of Beaumont
City of Fairfield
City of Bell
City of Folsom
City of Benicia
City of Fresno
City of Berkeley
City of Fountain Valley
City of Brea
City of Fullerton
City of Brentwood
City of Glendora
City of Buena Park
City of Grass Valley
City of Burbank
City of Gridley
City of Burlingame
City of Hanford
City of Campbell
City of Hawaiian Gardens
City of California City
City of Hercules
City of Canyon Lake
City of Hollister
City of Carlsbad
City of Huntington Beach
City of Carson
City of Huntington Park
City of Cathedral City
City of Industry
City of Ceres
City of Inglewood
City of Chula Vista
City of Ione
City of Chowchilla
City of Irvine
City of Citrus Heights
City of La Mesa
City of Claremont
City of La Palma
City of Clearlake
City of Laguna Beach
City of Clovis
City of Laguna Hills
City of Commerce
City Lake Forest
City of Corcoran
City of Lakeport
City of Corona
City of Lakewood
City of Cotati
City of Lancaster
City of Cudahy
City of Lathrop
X00075
City of Lincoln
City of Lindsay
City of Livingston
City of Lodi
City of Lompoc
City of Long Beach
City of Los Angeles
City of Los Banos
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 Norwalk
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 Palos Verdes Estates
City of Paramount
City of Pasadena
City of Patterson
City of Petaluma
City of Pinole
City of Pittsburg
City of Placerville
City of Pleasanton
City of Pleasant Hill
City of Pomona
City of Porterville
City of Poway
City of Redding
DOCSLA1:78072.1
City of Redlands
City of Rialto
City of Richmond
City of Riverside
City of Rohnert Park
City of Roseville
City of Sacramento
City of Salinas
Town of San Anselmo
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 Selma
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 of Twentynine Palms
City of Union City
City of Upland
City of Vacaville
City of Vallejo
City of Visalia
City of Vista
City of Watsonville
City of West Covina
Page 2 of 4
City of West Sacramento
Tehama County
City of Whittier
Trinity County
City of Woodland
Tulare County
Ventura County
COUNTIES (47)
Yolo County
Alameda County
Yuba County
Butte County
DISTRICTS (45)
Calaveras County
American River Fire Protection District
Colusa County
Apple Valley Fire Protection District
Contra Costa County
Armona Community Services District
Del Norte County
Big Bear City Community
El Dorado County
Services District
Glenn County
Bolinas Community Public Utility District
Humboldt County
Bostonia Fire Protection District
Imperial County
Cardiff Sanitation District
Inyo County
Chino Valley Independent Fire District
Kern County
Crest Fire Protection District
Kings County
Davis Joint Unified School District
Lake County
Diablo Water District
Lassen County
Encinitas Fire Protection District
Los Angeles County
Encinitas Sanitary District
Madera County
Hamilton Branch Community Services
Mariposa County
District
Mendocino County
Hilrnar County Water District
Merced County
Idyllwild Fire Protection District
Modoc County
Irish Beach Water District
Monterey County
June Lake Public Utility District
Napa County
Keyes Community Services District
Nevada County
Lake County Service Area No. 20
Orange County
Lakeside Fire Protection District
Placer County
Lakeside Irrigation District
Riverside County
Los Trancos County Water District
Sacramento County
Madera County Maintenance District No. 1
San Bernardino County
Hidden Lakes Estates
San Diego County
Meeks Bay fire Protection District
San Joaquin County
Mid Carmel Valley Fire Protection District
San Mateo County
Millview County Water District
Santa Barbara County
North County Fire Protection District
Santa Clara County
Oceano Community Services District
Santa Cruz County
Paradise Irrigation District
Sierra County
Peninsula Library System
Siskiyou County
Rancho Cucamonga Fire Protection District
Solano County
San Bernardino County Service Area No. 70
Sonoma County
San Diego Rural Fire Protection District
Stanislaus County
San Lorenzo Valley Water District
Sutter County
DocsLAi:78072.1
Page 3 of 4
San Miguel Consolidated Fire 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
Tuolumne 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
nocsi. I:7sms.1
Page 4 of 4
13138 -08 JH:TAD:ams
FIRST SUPPLEMENTAL INDENTURE OF TRUST
by and between the
CITY OF MOORPARK,
As Issuer
and
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Successor Trustee
Dated as of May 1, 1999
Relating to:
$21,700,000
City of Moorpark
Variable Rate Demand Multifamily Housing Refunding Revenue Bonds
(Le Club, Apartments Project)
1992 Series A
4/09D
G000�3
FIRST SUPPLEMENTAL INDENTURE OF TRUST
THIS FIRST SUPPLEMENTAL INDENTURE OF TRUST (this "First Supplement "), dated as of May 1, 1999,
by and between the CITY OF MOORPARK, a municipal corporation organized and existing under the laws of the
State of Califomia (herein called the "City "), and U.S. BANK TRUST NATIONAL ASSOCIATION, as successor
trustee, a national banking association organized and existing under the laws of the United States of America. (herein
called the "Trustee "),
WITNESSETH
WHEREAS, pursuant to that certain Indenture of Trust, dated as of November 1, 1992, by and between the
City and the Trustee (the "Indenture "), the City has previously issued its Variable Rate Demand Multifamily Housing
Refunding Revenue Bonds (Le Club Apartments Project) 1992 Series A (the "Bonds ") in the original aggregate
principal amount of $21,700,000; and
.WHEREAS, the proceeds of the Bonds were used by the City to fund a loan (the "Loan ") to Moorpark Le
Club, Ltd., a California limited partnership (the "Developer's Predecessor"), as predecessor to PTR- California
Holdings (3) Incorporated (the "Developer"), in order to provide financing with respect to a multifamily rental housing
development located in the City and commonly known as Le Club Apartments, currently owned by the Developer
(the `Project "); and
WHEREAS, the Developer has requested that the Project be refinanced through the issuance and delivery
of $21,700,000 Multifamily Housing Revenue Refunding Bonds (Le Club Apartments) (the "Refunding Bonds ") by the
California Statewide Communities Development Authority (the "Authority") for the purpose of prepaying the Loan and
refunding the Bonds; and
WHEREAS, the Authority will loan the proceeds of the Refunding to the Developer, which proceeds will be
used by the Developer to prepay the Loan and in that way will be used to refinance the Project and redeem the
Bonds; and
WHEREAS, Section 9.01 of the Indenture authorizes the City and the Trustee, with the written consent of
the Bank (as defined in.the Indenture), to enter into an indenture supplemental to the Indenture, without the consent
of, or notice to, any of the owners of the Bonds, for the purpose, infer alia, of curing, correcting or supplementing any
defective provision contained in the Indenture not inconsistent with the Indenture and which shall not adversely
affect the interests of the holders of the Prior Bonds; and
WHEREAS, in connection with issuance' of the Refunding Bonds, the City and the Developer desire to
provide for prepayment in whole of the Loan and redemption in whole of the Bonds from the proceeds of the
Refunding Bonds and /or a draw on the Letter of Credit (as defined in the Indenture) and to amend certain provisions
of the Indenture in connection therewith; and
WHEREAS, accordingly, the City hereby desires to amend the Indenture pursuant to Section 9.01 thereof,
all for the purpose of providing for optional prepayment of the Loan and redemption of the Bonds from the proceeds
of the Refunding Bonds and /or a draw on the Letter of Credit;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE OF TRUST WITNESSETH:
Section 1. Recitals. The City hereby confirms that the foregoing recitals are true and correct.
1 GOCOE O
Section 2. _Definitions
(a) General. Except as provided in paragraph (b) of this Section 2, capitalized terms used in this First
Supplement shall have the meanings given them in the Indenture unless otherwise defined herein. Nothing in this
First Supplement shall amend the definitions set forth in the Indenture except as otherwise expressly provided
herein.
(b) Definition of Available Amounts. The definition of Available Amounts in the Indenture is hereby
amended and restated in its entirety to read as follows:
The term "Available Amounts" means (a) the proceeds of -any bonds issued to refund the Bonds,
(b) the proceeds of a draw on the Letter of Credit, (c) any other moneys if there is delivered to the
Trustee at the time such moneys are deposited with the Trustee an opinion (which may assume
that no owner of Bonds is an "insider" within the meaning of the Bankruptcy Code) of nationally
recognized bankruptcy counsel to the effect that the use of such moneys to pay the principal of,
premium, if any, or interest on the Bonds would not constitute a voidable preferential payment
under Section 547 of the Bankruptcy Code in the event the City, the Developer or any member or
guarantor of the Developer became a debtor in the proceedings commenced thereunder, or (d) the
investment earnings of funds qualifying as Available Amounts under the foregoing clauses."
Section 3. Amendment to Section 10.01. Section 10.01(b) of the Indenture is hereby amended and
restated in its entirety to read as follows:
"(b) by the deposit or credit to the account of the Trustee, in trust, at or before maturity, of money
or securities in the necessary amount (as provided in Section 10.04) to pay or redeem Bonds outstanding,
whether by redemption or otherwise; or"
Section 4. Express Amendment. Except as specifically amended as provided herein, the Indenture shall
continue in full force and effect. In the event of any conflict between the terms of the Indenture and the provisions of
this First Supplement, the provisions of this First Supplement shall govern.
Section 5. Counterparts. This First Supplement may be executed in counterparts, each of which shall be
deemed to be an original, and such counterparts shall constitute one and the same instrument.
Section 6. Effective Date. This First Supplement shall be effective as of the date first set forth above.
Section 7. Governing Law. This First Supplement shall be governed by and construed in accordance with
the laws of the State of California applicable to contracts made and performed in such State.
Section 8. Incorporation By Reference. The City and the Trustee agree that the amendments contained in
this First Supplement shall be incorporated by this reference thereto into the Indenture, which document as so
amended shall produce a conformed amended and restated Indenture which collectively shall serve as the sole
operative Indenture in connection with the Bonds.
Section 9. Ratification and Reaffirmation of Indenture. Except as hereby expressly amended, the
Indenture shall remain in full force and effect; and the Indenture, as amended hereby, is ratified and confirmed.
Section 10. Binding Effect. This First Supplement shall inure to the benefit of and shall be binding upon
the City, the Trustee, the owners of the Bonds and their respective successors and assigns.
2 ( )COSIL
Section 11. Waiver of. Notice. The Credit Bank and the Developer, by their consent and acknowledgment
hereof, hereby waive any notice of the execution and delivery of this First Supplement that may be required by
Section 9.01 of the Indenture.
Section 12. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect
of the validity or the sufficiency of this First Supplement or the due execution hereof by the City. The recitals
contained herein shall be taken as the statements solely of the City, and the Trustee assumes no responsibility for
the correctness thereof.
3 ( C () E
IN WITNESS WHEREOF, the City and the Trustee have caused this First Supplement to be executed by
their duly authorized representatives.
CITY OF MOORPARK
By:
ATTEST: `
Mayor
City Clerk
U.S. BANK TRUST NATIONAL ASSOCIATION, as
Trustee
By:
Authorized Officer
CONSENTED TO AND ACKNOWLEDGED:
COMMERZBANK AKTIENGESELLSCHAFT, acting
through its Los Angeles Branch
By:
By:
PTR- CALIFORNIA HOLDINGS (3) INCORPORATED,
as Borrower
By:
Its:
4 OOCO83
col
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Attorneys for Plaintiff
California Statewide Communities Development
Authority
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SACRAMENTO
CALIFORNIA STATEWIDE COMMUTNITIES ) No. 99AS01384
DEVELOPMENT AUTHORITY, a public )
entity )
Plaintiff, )
V. )
SUMMONS
ALL PERSONS INTERESTED IN THE ) CITATION JUDICIAL
MATTER of the Approval and ) (§ 860 et seq. of the Code
Confirmation of Certain Bonds and ) of Civil Procedure)
Related Contracts for the Purpose )
of Refinancing Outstanding )
Multifamily Housing Revenue Bonds }
!Pursuant to a Financing Program,
and All Proceedings Leading
Thereto, Including the Adoption of )
a Resolution Approving Such )
Program and Financings, )
Defendants.
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NOTICE! YOU HAVE BEEN SUED. THE COURT MAY DECIDE AGAINST YOU
WITHOUT YOUR BEING HEARD UNLESS YOU RESPOND NOT LATER THAN MAY 3,
1999, WHICH IS TEN (10) DAYS AFTER COMPLETION OF THE PUBLICATION OF
THIS SUMMONS. READ THE INFORMATION BELOW.
AVISO! USTED HA SIDO DEMANDADO. EL TRIBUNAL PUEDE DECIDIR
CONTRA USTED SIN AUDIENCIA A
MENOS
QUE USTED
RESPONDA NO MAS TARDE
QUE EL TRES DE MAYO, 1999,
QUE
ES DIEZ
(10) DIAS DESPUES DE
TERMINACION DE PUBLICACION DE
ESTA
CITACION.
LEA LA INFORMACION QUE
SIGUE.
TO ALL PERSONS INTERESTED IN THE MATTER OF THE APPROVAL AND
CONFIRMATION OF CERTAIN BONDS AND RELATED CONTRACTS FOR THE PURPOSE
OF REFINANCING OUTSTANDING MULTIFAMILY HOUSING REVENUE BONDS
PURSUANT TO A FINANCING PROGRAM, AND ALL PROCEEDINGS LEADING
THERETO, INCLUDING THE ADOPTION OF A 'RESOLUTION APPROVING SUCH
PROGRAM AND FINANCINGS.
PLEASE TAKE NOTICE THAT the California Statewide Communities
Development Authority has filed a civil complaint against you
pursuant to California Code of Civil Procedure Section 860 et seq.
and California Government Code Section 53589.5 for the purpose of
validating the proposed issuance of multifamily housing revenue
bonds and revenue refunding bonds a portion of which will be issued
for the purpose of refinancing bonds issued to finance multifamily
housing facilities located in the State of California, including
the cities of Agoura Hills, Carlsbad, Huntington Beach, Moorpark
and San Buenaventura, and other related matters. If you wish to
contest the legality or validity of this lawsuit, You must appear
and file with the Court a written pleading in response to the
-2-
SUMWNS g
GGGOS
I complaint not later than May 3, 1999, which date is at least ten
2 days after completion of the publication of this summons. Your
3 pleading must be in the form required by the California Rules of
4 Court. Your original pleading must be filed in this Court with
5 proper filing fees and proof that a copy thereof was served on
6 Plaintiff's attorneys.
7 Unless you so respond, your default will be entered upon
8 Plaintiffs' application and this Court may enter a judgment against
9 you for the relief demanded in the complaint. Persons who contest
10 the legality or validity of the matter will not be subject to
11 punitive action, such as wage garnishment or seizure of their real
12 or personal property.
13 YOU MAY SEEK THE ADVICE OF AN ATTORNEY IN ANY MATTER CONNECTED!
14 WI'T'H THE COMPLAINT OR THIS SUMMONS. SUCH ATTORNEY SHOULD BE
15 CONSULTED PROMPTLY SO THAT YOUR RESPONSE MAY BE FILED OR ENTERED
16 WITHIN THE TIME REQUIRED BY THIS SUMMONS.
17 SI USTED DESEA SOLICITAR EL CONSEJO DE UN ABOGADO EN ESTE
18 ASUNTO, DEBERIA HACERLO IMEDIATAMENTE, DE ESTA MANERA, SU REPUESTA
19 ESCRITA, SI HAY ALGUNA, PUEDE SER REGISTRADA A TIEMPO.
20 The name and address of the Court is (E1 nombre y direccion
21 del Superior Tribunal es):
22 Superior Court of the State of California
23 In and for the County of Sacramento
720 Ninth Street
24 Sacramento, California 95814
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-3-
SUMMONS
The names and addresses of Plaintiffs' attorneys are (Los
nombres y direcciones ;del abogado del demandante son):
THOMAS A. DOWNEY, ESQ.
COURTNEY L. JONES, ESQ.
JONES._ HALL, A PROFESSIONAL LAW
CORPORATION
650 California Street, 18th Floor
San Francisco., CA 94108
Phone: 415 -391 -5780
Dated: MAR 26 1999
SUMMONS
J. CARBONI
By:
Clerk .
(Actuario)
13138 -08
JH:TAD:ams 4/8/99D
TO BE RECORDED AND UPON RECORDATION RETURN TO:
Jones Hall, A Professional Law Corporation
650 California Street, 18th Floor Dn
San Francisco, CA 94108
ATTN: Thomas A. Downey, Esq. KAFT
REGULATORY AGREEMENT
AND DECLARATION OF RESTRICTIVE COVENANTS
by and among
CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY,
as Issuer
and
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
and
PTR- CALIFORNIA HOLDINGS (3) INCORPORATED,
as Borrower
Dated as of June 1, 1999
Relating to
Moorpark Le Club Apartments
Moorpark, California
e
TABLE OF CONTENTS
Section 1.
Definitions and Interpretation
Section 2.
............ ............................. ...............................
Completion of the Project ..........................................................
..............................5
Section 3.
Residential Rental Property
........ ...............................
Section4.
Low Income Tenants
Section5.
................................................................. ..............................7
Consideration
Section 6.
.......................................................................... ...............................
Tax - Exempt Status of the Bonds; Modification of Special Tax Covenants
8
9
Section 7.
.....................
Agreement to Record
Section8.
............................................................... .............................10
Reliance
Section 9.
.................................................................................. .............................10
Project Within the Boundaries County
of the ........................... ............................... 10
Section 10.
Sale or Transfer of the Project
Section11.
................................................... .............................10
Term
Section 12.
....................................................................................... .............................11
Burden and Benefit
'Section 13.
................................... ...............................
Uniformity; Common Plan'
11
.................................................... ...............................
12
Section 14.
Enforcement
Section 15.
......................
Estoppel Certificate
Section 16.
.................................................................. .............................13
Indemnification
Section17.
....................
Amendments
Section 18.
........................................................................ ...............................
Notice
14
......................
14
Section 19.
Severability ...........................................................................
Section 20.
...............................
Multiple Counterparts .............................................................
.............................14
Section 21.
Limited Liability . ...................
Section 22.
.................. ............................... •••.......••••
The Trustee............
14
Section 23.
...
Attorney's Fees.
Section 24.
................... ............... ••••••••••••••••••
Administrator....
15
Section 25.
... ............ •... ...............................
Payment of Fees ..............................
15
Section 26.
...............................
Governing Law ..........................
.
Section 27.
............................... ...............16
............................
Third Party Beneficiaries
............................. ...............
. ............ ...............................
16
EXHIBIT A — LEGAL DESCRIPTION OF PROJECT SITE
EXHIBIT B — CERTIFICATION OF CONTINUING PROGRAM COMPLIANCE
EXHIBIT C - INCOME COMPUTATION AND CERTIFICATION
REGULATORY AGREEMENT
AND DECLARATION OF RESTRICTIVE COVENANTS
THIS REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE
COVENANTS (the "Regulatory Agreement ") is made and entered into as of June 1, 1999, by
and among the CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT 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 PTR- CALIFORNIA HOLDINGS (3) INCORPORATED, a Delaware
corporation (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 1999, the Issuer adopted a resolution authorizing the
issuance of its Apartment Development Revenue Bonds (Archstone Communities Trust)
(Refunding) Series 1999 _(the "Bonds ") and the loan of the proceeds thereof to the Borrower
to enable the Borrower to refinance multifamily housing developments, including a 370 -unit
development located within the City of Moorpark 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.
"Act" means Chapter 7 of Part 5 of Division 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.
"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.
"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
Apartment Development Revenue Bonds (Archstone Communities Trust) (Refunding) Series
1999 , issued in the original principal amount of $21,700,000.
"Borrower" means I PTR- California Holdings (3) Incorporated, and its successors and
assigns, and any surviving, resulting or transferee entity, as successor in interest to Moorpark Le
Club, Ltd., a California limited partnership.
"Borrower R epresentative 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
person or persons and signed on behalf of the Borrower by a duly authorized representative of
the Borrower.
"City" means the City of Moorpark, 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 Q. .
"Count" means the County of Ventura.
"Indenture" means the Indenture of Trust, dated as of June 1, 1999, between the Issuer
and the Trustee, as originallyexecuted 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 June , 1999.
G0009 .
"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 Agreement" means the Loan Agreement, dated as of June 1, 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, on the basis of the "Income
Computation and Certification" attached hereto as Exhibit C and incorporated by referenced
herein as certified by such individual or family, 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 $21,700,000 City of Moorpark Variable Rate Demand Multifamily
Housing Refunding Revenue Bonds (Le Club Apartments Project) 1992 Series A.
"Prior Re ilatoix greement" means the Regulatory Agreement dated as of December 1,
1985, by and among the City, the Borrower, Citicorp Real Estate, Inc., as servicer, and U.S.
Bank Trust National Association, as successor trustee.
"Project" means the Project Facilities and the Project Site.
"Project Facilities" means the multifamily rental housing development consisting of 370
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.
"Project Loan Documents" means, collectively, the Loan Agreement and all other
documents related to the Loan executed by the Borrower.
"Project 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.
"Qualified Project Period" means the period beginning on the first day on which ten
percent of the dwelling units in the Project were occupied, 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; or (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. For purposes of clause (b), the term "qualified number of days" means, with
3 C00092
respect to the Bonds, fifty percent (50 %) of the total number of days comprising the period
from December 28, 1985 to the maturity date of the Bonds.
"Regulations" or "Treasury Regulations" 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.
"Regul_atory Agreement" means this Regulatory Agreement and Declaration of Restrictive
Covenants, dated as of June 1, 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.
"Very Low Income Tenants" means individuals or families, on the basis of the "Income
Computation and Certification" attached hereto as Exhibit C and incorporated by referenced
herein as certified by such individual or family, who have an Adjusted Income which does not
exceed fifty percent (50 %) of the Median Income for the Area.
"Very 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:
(a) 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.
(b) 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.
(c) 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
4 000093
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.
(e) 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 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
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
condominium 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.
5 000094
W 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. AFDC, 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
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 Very Low Income Units
(i) From and after the Issue Date and throughout the term of the Qualified
Project Period, (A) 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; and (B) one -half of the units reserved for
occupancy pursuant to subparagraph (A) above shall be reserved for occupancy
by individuals or 'families whose adjusted gross income does not exceed 50
percent of the median adjusted gross income for the area, adjusted for family
size, as determined pursuant to Section 8 of the United States Housing Act of
1937 (42 U.S.C.A. Sec. 1437f, or its successor, and the rents for those units will
not exceed the amount derived by multiplying 30 percent times 50 percent of the
median adjusted gross income for the area, adjusted for family size, as
00090-
determined pursuant to Section 8 of the United States Housing Act of 1937 (42
U.S.C.A. Sec. 1437f), or its successor, for a family of one person in the case of a
studio unit, two persons in the case of a one bedroom unit, three persons in the
case of a two bedroom unit, four persons in the case of a three bedroom unit, and
five persons in the case of a four bedroom unit.
(ii) 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.
(iii) The Borrower shall advise the Administrator 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.
(iv) 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 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.
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.
7 0G09
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 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 determining 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.
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.
Section 6. Tax - Exempt Status of the Bonds; Modification of Special Tax Covenants.
A. Tax - Exempt 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.
8 G0009
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 Special 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
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 6.13.3. without first being requested 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 S. 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 verifications in support thereof unless the Borrower has actual
9 000098
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 authorizati on 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, a Program
Participant of the Issuer.
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
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
10 I M093
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.
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;
provided, 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
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 City, 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
12 GOCIL01
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 willful 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
al ,'assessments, impositions and other charges in respect of the Project (not
to include
taxes and salt' . taxes rncom a 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 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.
13`
NEE=
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 may 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 determining 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 Administrator of any non-
compliance or default hereunder. The Administrator and /or the 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 City, 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 Administration
Agreement, dated as of , 1999, by and between the 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
14 0C. 103
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.
The Borrower shall pay to the City a financing fee in the amount of $54,250.00 due and
payable upon the execution and delivery of the Bonds, an amount equal to $10,000.00 in
repayment of expenses incurred by the City in connection with the issuance of the Bonds due
and payable prior to the approval of the issuance of the Bonds by the City, and an annual
administration fee in the amount of $21,700.00 payable annual in arrears on June 1 of each year,
commencing June 1, 2000 (the "City Administration Fee "). Neither the payment of the financing
fee, the payment of expenses, or the payment of the City Administration Fee referenced in this
section shall in no way limit amounts payable by the Borrower under Section 16 of 23 hereof, or
arising in connection with the City's enforcement of the provisions of this Regulatory Agreement.
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
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 City of Moorpark, California is intended to
be and shall be a third party beneficiary of this Regulatory Agreement, and the City of
Moorpark, California 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.
15 GOC104
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
COMMUNITIES DEVELOPMENT
AUTHORITY, as Issuer
M
Member
PTR- CALIFORNIA HOLDINGS (3)
INCORPORATED, as Borrower
By:
U.S. BANK TRUST NATIONAL
ASSOCIATION, as Trustee
Authorized Officer
16 00(110 55
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.
G 0C V r)
STATE OF CALIFORNIA
COUNTY OF
ss
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.
GOCI.0"17
STATE OF CALIFORNIA
COUNTY OF
ss
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.
EXI IIBIT A
LEGAL DESCRIPTION OF PROJECT SITE
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 Q�F ®„
EXHIBIT B
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 US. 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 -- %; Unit Nos.
(at Affordable Rents)
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
0
Exhibit B
Page 2 000111
EXHIBIT 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 Social Security
Head of Household Number
Income Computation
Age Amount of _
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 00611%
(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 determinable 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;
fire; (e) special pay to a household member who is away from home and exposed to hostile
(f) relocation payments under Title 11 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 00012.13
W 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
(o) 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 g 000114
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 Other
Physical Disability
Yes
Exhibit C
Page 4
No
OC11 1
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 0611
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)(1), subtract
from that figure the amount entered in 7(d)(2) and enter the remaining balance
(2) Multiply the amount entered in 7(d)(1) 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:
(Q —TOTAL ELIGIBLE INCOME (Line La plus line Lb(3):
(5) The amount entered in 1(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:
--Tenant-Paid Utilities:
Bedroom Size: Rent:
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 00CA17
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 OW118
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 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.: Name (Print):
Address (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: of change: 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 000113
Page 8
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:
Signature
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 L' Z 0
Page 9
Case Worker's Signature:
Telephone: District Office:
Your very early response will be appreciated.
Please return form to:
INCOME VERIFICATION
(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
00C1IL