HomeMy WebLinkAbout7358 RESOLUTION NO. 7358
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ARCADIA,
CALIFORNIA, AUTHORIZING THE CITY TO BECOME A MEMBER OF
THE CALIFORNIA COMMUNITY HOUSING AGENCY ("CALCHA") AND
AUTHORIZING THE CITY MANAGER TO ENTER INTO PUBLIC BENEFIT
AGREEMENTS WITH CALCHA IN SUPPORT OF THEIR ISSUANCE OF
TAX-EXEMPT BONDS TO CREATE OR PRESERVE MIDDLE-INCOME
RENTAL HOUSING IN ARCADIA
WHEREAS, CaICHA is a Joint Powers Authority (the "Authority") created pursuant
to Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California (the
"Act"), and a Joint Exercise of Powers Agreement Relating to CaICHA among certain
public agencies (the "Agreement"), in order to produce, preserve and protect quality
affordable rental housing made available to California's middle-income population; and
WHEREAS, one of the goals of the City of Arcadia (the "City") is to meet the
growing housing needs of its residents by actively supporting the production, preservation
and protection of market-rate and affordable rental housing for all; and
WHEREAS, the City has determined that it is in the public interest and for the
public benefit that the City become an Additional Member of CaICHA pursuant to Section
12 of the Agreement in order to facilitate the production, preservation and protection of
quality affordable rental housing for the City's middle-income residents and workforce,
including the financing of projects therefor by CaICHA; and
WHEREAS, the Agreement has been filed with the City, and the members of the
City Council of the City (the "City Council"), with the assistance of its staff, have reviewed
said document, and the City proposes to become an Additional Member of CaICHA; and
WHEREAS, CaICHA proposes to issue from time to time its governmental purpose
revenue bonds (the "Bonds") and use the proceeds thereof to finance the acquisition,
construction, development and certain related costs of multifamily housing developments
within the City (each, a "Project"); and
WHEREAS, prior to the issuance of Bonds for a Project, CaICHA shall submit a
Public Benefit Agreement to the City for its review, and the City shall in its sole discretion
either approve or deny the issuance of Bonds and the execution of a Public Benefit
Agreement for the proposed Project ; and
WHEREAS, CaICHA intends to implement regulatory agreements at each Project
to avoid the displacement of existing residents, restrict future occupancy to middle-
income households earning no more than 120% of area median income, and impose
limitations on the annual rent increases of such qualified middle-income households; and
WHEREAS, CaICHA proposes, pursuant to one or more Public Benefit
Agreements (the "Public Benefit Agreements"), between CaICHA and the City, the form
of which has been filed with the City Council, to grant the City the option, but never the
obligation, to purchase each Project or to cause CaICHA to sell such Project,
commencing on the date fifteen (15) years after CaICHA's acquisition of such Project;
and
WHEREAS, it is in the public interest and for the public benefit that the City Council
approve the issuance of the Bonds by CaICHA for the aforesaid purposes;
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA,
DOES HEREBY FIND, DETERMINE AND RESOLVE AS FOLLOWS:
SECTION 1. The foregoing recitals are true and correct.
SECTION 2. The City Council hereby authorizes the City to become an Additional
Member of CaICHA. The Agreement is hereby approved and the City Manager or the designee
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thereof is hereby authorized and directed to execute the Agreement and the City Clerk or such
Clerk's designee is hereby authorized and directed to attest thereto.
SECTION 3. The proposed form of Public Benefit Agreement on file with the City Council
is hereby approved. In connection with any Project, the City Manager or the designee thereof
is hereby authorized and directed to execute an agreement in substantially said form, with such
changes therein as such officer executing the same may require or approve, such approval to
be conclusively evidenced by the execution and delivery thereof.
SECTION 4. The City Council hereby supports and approves CaICHA's issuance of
Bonds from time to time as a means towards the production, preservation and protection of
middle-income rental housing within City limits.
SECTION 5. The issuance of Bonds shall be subject to the approval of CaICHA of all
financing documents relating thereto to which CaICHA is a party. The City shall have no
responsibility or liability whatsoever with respect to the Bonds.
SECTION 6. The adoption of this Resolution shall not obligate the City or any department
thereof to (i) provide any financing to acquire or construct any Project or any refinancing of any
Project; (ii) approve any application or request for or take any other action in connection with
any planning approval, permit or other action necessary for the acquisition, construction,
rehabilitation or operation of any Project; (iii) make any contribution or advance any funds
whatsoever to CaICHA; or (iv) except as provided in this Resolution, take any further action with
respect to CaICHA or its membership therein.
SECTION 7. The executing officers(s), the City Clerk and all other proper officers and
officials of the City are hereby authorized and directed to execute such other agreements,
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documents and certificates, and to perform such other acts and deeds, as may be necessary
or convenient to effect the purposes of this Resolution and the transactions herein authorized.
SECTION 8. Severability. If any section, subsection, subdivision, paragraph, sentence,
clause or phrase of this Resolution, or any part thereof is for any reason held to be
unconstitutional or otherwise legally ineffective, such decision shall not affect the validity of the
remaining portion of this Resolution or any part thereof. The City Council hereby declares that
it would have passed each section, subsection, subdivision, paragraph, sentence, clause or
phrase thereof, irrespective of the fact that any one or more section, subsection, subdivision,
paragraph, sentence, clause or phrase be declared unconstitutional or otherwise legally
ineffective.
If for any reason any portion of this Resolution is found to be invalid by a court of
competent jurisdiction, the balance of this Resolution shall not be affected.
SECTION 9. CEQA. The City Council finds that this Resolution is not subject to the
California Environmental Quality Act ("CEQA") pursuant to Section 15060(c)(3) (the activity is
not a project as defined in Section 15378) of the CEQA Guidelines, California Code of
Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to
the environment, directly or indirectly.
SECTION 10. The City Clerk shall certify to the approval of this Resolution.
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Passed, approved and adopted this 18th day of May, 2021.
ayor of t City of Arcadia
ATTEST:
4(6e144 -
• Clerk
APPROVED AS TO FORM:
gtiTLA n. 4)4=e
Stephen P. Deitsch
City Attorney
Exhibit "A" — Joint Exercise of Powers Agreement Relating to CaICHA
Exhibit "B" — Public Benefit Agreement
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STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) SS:
CITY OF ARCADIA )
I, GENE GLASCO, City Clerk of the City of Arcadia, hereby certifies that the
foregoing Resolution No. 7358 was passed and adopted by the City Council of the City of
Arcadia, signed by the Mayor and attested to by the City Clerk at a regular meeting of said
Council held on the 18th day of May, 2021 and that said Resolution was adopted by the
following vote, to wit:
AYES: Beck, Chandler, Verlato, Cheng, and Tay
NOES: None
ABSENT: None
el Clerk o the City of Arcadia
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Exhibit"A"
JOINT EXERCISE OF POWERS AGREEMENT
RELATING TO THE CALIFORNIA COMMUNITY HOUSING AGENCY
THIS AGREEMENT, dated as of January 29, 2019, among the parties executing this
Agreement (all such parties, except those which have withdrawn as provided herein,,are referred
to as the "Members" and those parties initially executing this Agreement are referred to as the
"Charter Members"):
WITNESSETH
WHEREAS, pursuant to Title 1, Division 7, Chapter 5 of the California Government
Code (in effect as of the date hereof and as the same may from time to time be amended or
supplemented, 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 Members is a "public agency" as that term is defined in Section
6500 of the Joint Exercise of Powers Act; and
WHEREAS, each of the Members is empowered by law to promote economic, cultural
and community development, including, without limitation, the promotion of opportunities for
the creation or retention of employment, the stimulation of economic activity,the increase of the
tax base, and the promotion of opportunities for education, cultural improvement and public
health, safety and general welfare; and
WHEREAS, each of the Members may accomplish the purposes and objectives described
in the preceding preamble by various means; and
WHEREAS, each Member is also empowered by law to acquire, construct, improve,
operate and dispose of real property for a public purpose; and
WHEREAS, the Joint Exercise of Powers Act authorizes the Members to create a joint
exercise of powers entity with the authority to exercise any powers common to the Members,
including but not Iimited to acquiring, constructing, improving, operating and disposing of real
property for a public purpose, all as specified in this Agreement, and to exercise the additional
powers granted to it in the Joint Exercise of Powers Act and any other applicable provisions of
the laws of the State of California; and
WHEREAS, a public entity established pursuant to the Joint Exercise of Powers Act is
empowered to issue or execute non-recourse debt, which may include bonds, notes, commercial
paper or any other evidences of indebtedness, Ieases, installment sale or other financing
agreements or certificates of participation therein (herein "Obligations"), and to otherwise
undertake financing programs under the Joint Exercise of Powers Act or other applicable
provisions of the laws of the State of California to accomplish its public purposes; and
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WHEREAS, the Members have determined to specifically authorize a public entity
authorized pursuant to the Joint Exercise of Powers Act to issue non-recourse Obligations
pursuant to the Joint Exercise of Powers Act or other applicable provisions of the laws of the
State of California; and
WHEREAS, it is the desire of the Members to use a public entity established pursuant to
the Joint Exercise of Powers Act to undertake the financing and/or refinancing of projects that
provide, preserve and support affordable local housing for low-income, moderate-income and
middle-income families and individuals within the jurisdictions of the Members, including, but
not limited to, capital or working capital projects, purchase or acquisition of property,
receivables, commodities, bonds, other revenue streams or assets of any kind, liability or other
insurance, or retirement programs, or facilitating Members use of existing or new financial
instruments and mechanisms in the furtherance of this purpose; and
WHEREAS, by this Agreement, each Member desires to create and establish the
"California Community Housing Agency" for the purposes set forth herein and to exercise the
powers provided herein;
NOW, THEREFORE, the Members, for and in consideration of the mutual promises and
agreements herein contained, do agree as follows:
Section 1. Purpose.
This Agreement is made pursuant to the provisions of the Joint Exercise of Powers Act.
The purpose of this Agreement is to establish a public entity for the joint exercise of powers
common to the Members and for the exercise of additional powers given to a joint powers entity
under the Joint Powers Act or any other applicable law, including, but not limited to, the
issuance of non-recourse Obligations for any purpose or activity permitted under the Joint
Exercise of Powers Act or any other law; provided, however that such purpose shall be solely for
the acquisition, construction, rehabilitation, ownership, operation, maintenance, administration
and/or financing of multifamily housing for low-income, moderate-income and middle-income
families and individuals (the "Purpose"). Such Purpose will be accomplished and said power
exercised in the manner hereinafter set forth.
Section 2. Term.
This Agreement shall become effective in accordance with Section 17 as of the date
hereof and shall continue in full force and effect until such time as it is terminated in writing by
all the Members; provided, however, that this Agreement shall not terminate or be terminated
until all Obligations issued or caused to be issued by the Agency (defined below) shall no longer
be outstanding under the terms of the indenture, trust agreement, resolution or other instrument
pursuant to which such Obligations are issued.
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Section 3. Agency.
A. CREATION AND POWERS OF AGENCY.
Pursuant to the Joint Exercise of Powers Act, there is hereby created a public
entity to be known as the"California Community Housing Agency" (the "Agency"), and
said Agency shall be a public entity separate and apart from the Members. Its debts,
liabilities and obligations do not constitute debts, liabilities or obligations of any
Members, and the Obligations of the Agency shall only be non-recourse obligations.
B. BOARD.
The Agency shall be administered by the Board of Directors (the "Board," or the
"Directors" and each a"Director") whose members shall be, at all times, members of the
Board of Supervisors (the "Board of Supervisors") of Kings County, California, with
each such Director serving in his or her individual capacity as Director of the Board. The
term of office as a member of the Board shall terminate when such member shall cease to
be a member of the Board of Supervisors and the successor to such member of the Board
of Supervisors shall become a member of the Board.
Notwithstanding the preceding paragraph, the Board may by resolution or
bylaws provide for changes in the qualifications, composition and number of Directors,
the appointment of Directors, successors, their respective terms of office and any other
provisions relating to the qualification and office of the Directors, including provision for
alternative Directors (in which case all references in this Agreement to any Director shall
be deemed to refer to and include the applicable alternate Director, if any, when so acting
in place of a regularly appointed Director).
The Board shall be the administering agency of this Agreement and, as such,
shall be vested with the powers set forth herein, and shall administer this Agreement in
accordance with the purposes and functions provided herein.
Directors 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.Director, if the Board shall determine that such expenses shall be reimbursed and
there are unencumbered funds available for such purpose.
C. OFFICERS; DUTIES; OFFICIAL BONDS.
The officers of the Agency shall be the Chair, Vice-Chair, Secretary and
Treasurer (defined below). The Board, in its capacity as administering agent of this
Agreement, shall elect a Chair, a Vice-Chair, and a Secretary of the Agency from among
Directors to serve until such officer is re-elected or a successor to such office is elected
by the Board. The Board shall appoint one or more of its officers or employees to serve
as treasurer, auditor, and controller of the Agency (the "Treasurer") pursuant to Section
6505.6 of the Joint Exercise of Powers Act to serve until such officer is re-elected or a
successor to such office is elected by the Board.
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Subject to the applicable provisions of any resolution, indenture, trust agreement
or other instrument or proceeding authorizing or securing Obligations (each such
resolution, indenture,trust agreement, instrument and proceeding being herein referred to
as an "Indenture") providing for a trustee or other fiscal agent, and except as may
otherwise be specified by resolution of the Board, the Treasurer is designated as the
depositary of the Agency to have custody of all money of the Agency, from whatever
source derived and shall have the powers, duties and responsibilities specified in
Sections 6505, 6505.5 and 6509.5 of the Joint Exercise of Powers Act.
The Treasurer of the Agency is designated as the public officer or person who has
charge of, handles, or has access to any property of the Agency, and such officer shall file
an official bond with the Secretary of the Agency in the amount specified by resolution of
the Board but in no event less than$1,000.
The Board shall have the power to appoint such other officers and employees as it
may deem necessary and to retain independent counsel, consultants and accountants.
The Board shall have the power, by resolution,to the extent permitted by the Joint
Exercise of Power Act or any other applicable law, to delegate any of its functions to one
or more of the Directors or officers, employees or agents of the Agency and to cause any
of said Directors, officers, employees or agents to take any actions and execute any
documents or instruments for and in the name and on behalf of the Board or the Agency.
D. MEETINGS OF THE BOARD.
(1) Ralph M. Brown Act.
All meetings of the Board, 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), or any successor legislation
hereinafter enacted (the"Brown Act").
(2) Regular Meetings.
The Board shall provide for its regular meetings; provided,
however, it shall hold at least one regular meeting each year. The date,
hour and place of the holding of the regular meetings shall be fixed by
resolution of the Board. To the extent permitted by the Brown Act, such
meetings may be held by telephone conference.
(3) Special Meetings.
Special meetings of the Board may be called in accordance with
the provisions of Section 54956 of the Government Code of the State of
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California. To the extent permitted by the Brown Act, such meetings may
be held by telephone conference.
(4) Minutes.
The Secretary of the Agency shall cause to be kept minutes of the
regular, adjourned regular, special, and adjourned special meetings of the
Board and shall, as soon as possible after each meeting, cause a copy of
the minutes to be forwarded to each Director.
(5) Quorum.
A majority of the Board shall constitute a quorum for the
transaction of business. No action may be taken by the Board except upon
the affirmative vote of a majority of the Directors present at the meeting,
except that less than a quorum may adjourn a meeting to another time and
place.
E. RULES AND REGULATIONS.
The Agency may adopt, from time to time, by resolution of the Board such
bylaws, policies or rules and regulations for the conduct of its meetings and affairs as
may be required.
Section 4. Powers.
The Agency shall have the power, in its own name, to exercise the common powers of the
Members and to exercise all additional powers given to a joint powers entity under any of the
laws of the State of California, including,but not limited to,the Joint Exercise of Powers Act, for
the Purpose authorized under this Agreement. Such powers shall include the common powers
specified in this Agreement and may be exercised in the manner and according to the method
provided in this Agreement. The Agency is hereby authorized to do all acts necessary for the
exercise of such power, including, but not limited to, any of all of the following: to make and
enter into contracts; to employ agents and employees; to acquire, construct, improve, own,
maintain and operate, or provide for maintenance and operation, and sell, lease, pledge, assign,
mortgage or otherwise dispose, of any property, improvements, commodities, leases, contracts,
receivables, bonds or other revenue streams or assets of any kind relating to the Purpose; to
exercise the power of condemnation; to incur debts, liabilities or obligations; to receive gifts,
contributions and donations of property, funds, services, and other forms of assistance from
person, firms, corporations and any governmental entity; to sue and be sued in its own name; to
establish and collect fees; to form public benefit nonprofit corporations or other affiliate entities
to accomplish any of its Purposes; to make grants, loans or provide other financial assistance to
governmental, nonprofit and for profit organizations to accomplish any of its Purposes; and
generally to do any and all things necessary or convenient to accomplish its Purposes. The
boundaries of the Agency shall encompass the boundaries of all the Members and the powers of
the Agency may be exercised anywhere within those boundaries or to the extent permitted by the
laws of the State of California, including, but not limited to the Joint Exercise of Powers Act,
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outside of those boundaries, which may be outside of the State of California, provided that the
power of condemnation may only be exercised within the jurisdictional boundaries of the Charter
Members.
Without limiting the generality of the foregoing, the Agency may issue or cause to be
issued Obligations, and pledge any property, contracts or revenues as security to the extent
permitted under the Joint Exercise of Powers Act, or any other applicable provision of law.
The manner in which the Agency 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. The manner in which the Agency 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 resolution of the Board, being, at the date of this Agreement,the
period from July 1 to and including the following June 30, except for the first Fiscal Year which
shall be the period from the date of this Agreement to June 30,2019.
Section 6. Disposition of Assets.
At the end of the term hereof or upon the earlier termination of this Agreement as set
forth in Section 2, after payment of all expenses and liabilities of the Agency, all property of the
Agency both real and personal shall automatically vest in the Members in the manner and
amount determined by the Board in its sole discretion and shall thereafter remain the sole
property of the Members; provided, however, that any surplus money on hand shall be returned
in proportion to the contributions made by the Members.
Section 7. Obligations.
From time to time the Agency shall issue Obligations, in one or more series, for the
purpose of exercising its powers and raising the funds necessary to carry out its Purposes under
this Agreement, including but not limited to acquiring, constructing, improving, operating and
disposing of real property for a public purposes.
The services of bond counsel, financing consultants and other consultants and advisors
working on the projects and/or their financing or refinancing or on post-issuance compliance or
administration may be used by the Agency. The expenses of the Board shall be paid from the
proceeds of the Obligations, payments made by Obligation obligors or other third parties, or any
other unencumbered funds of the Agency available for such purpose.
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Section S. Obligations Only Limited and Special Obligations of Agency.
The Obligations, together with the interest and premium, if any, thereon, shall not be
deemed to constitute a debt of any Member or pledge of the faith and credit of the Members or
the Agency. The Obligations shall be only special non-recourse obligations of the Agency, and
the Agency shall under no circumstances be obligated to pay the Obligations except from
revenues and other funds pledged therefor. Neither the Members nor the Agency shall be
obligated to pay the principal of, premium, if any, or interest on the Obligations, or other costs
incidental thereto, except the Agency from the revenues and funds pledged and available
therefor, and neither the faith and credit nor the taxing power of the Members nor the faith and
credit of the Agency shall be pledged to the payment of the principal of, premium, if any, or
interest on the Obligations nor shall the Members or the Agency in any manner be obligated to
make any appropriation for such payment.
No covenant or agreement contained in any Obligation or related document shall be
deemed to be a covenant or agreement of any Director, or any officer, employee or agent of the
Agency in his or her individual capacity, and neither the Board of the Agency nor any Director
or officer thereof executing the Obligations shall be liable personally on any Obligation or be
subject to any personal liability or accountability by reason of the issuance of any Obligations.
Section 9. Accounts and Reports.
All funds of the Agency shall be strictly accounted for. The Agency 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 Obligations).
The books and records of the Agency shall be open to inspection at all reasonable times by each
Member.
The Treasurer of the Agency 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 a public record with each Member and also with the county auditor of
each county in which a Member is located; provided, however, that to the extent permitted by
law, the Agency may, instead of filing such report with each Member and such county auditor,
elect to post such report as a public record electronically on a website designated by the Agency.
Such report if made shall be filed within 12 months of the end of the Fiscal Year or Years under
examination.
The Treasurer is hereby directed to report in writing on the first day of July, October,
January, and April of each year to the Board and the Charter Members which report shall
describe the amount of money held by the Treasurer for the Agency, the amount of receipts since
the last such report, and the amount paid out since the last such report (which may exclude
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amounts held by a trustee or other fiduciary in connection with any Obligations to the extent that
such trustee or other fiduciary provided regular reports covering such amounts.)
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 Agency and shall be a charge against any unencumbered funds of the Agency available for
that purpose.
In any Fiscal Year the Board may, by resolution adopted by unanimous vote, replace the
annual special audit with an audit covering a two-year period.
Section 10. Funds.
Subject to the applicable provisions of any Indenture, which may provide for a trustee or
other fiduciary to receive, have custody of and disburse Agency funds, the Treasurer of the
Agency shall receive, have the custody of and disburse Agency funds pursuant to the accounting
procedures developed under Sections 3.0 and 9, and shall make the disbursements required by
this Agreement or otherwise necessary to carry out any of the provisions of purposes of this
Agreement.
Section 11. Notices.
Notices and other communications hereunder to the Members shall be sufficient if
delivered to the clerk of the governing body of each Member; provided that, to the extent
permitted by law, the Agency may provide notices and other communications and postings
electronically (including, without limitation,through email or by posting to a website).
Section 12. Additional Members/Withdrawal of Members.
Qualifying public agencies may be added as parties to this Agreement and become
Charter Members upon: (1) the filing by such public agency with the Agency of an executed
counterpart of this Agreement, together with a copy of the resolution of the governing body of
such public agency approving this Agreement and the execution and delivery hereof; and (2)
adoption of a resolution of the Board approving the addition of such public agency as a Charter
Member. Upon satisfaction of such conditions, the Board shall file such executed counterpart of
this Agreement as an amendment hereto, effective upon such filing.
Qualifying public agencies may also be added as Non-Charter Members ("Additional
Members") of the Agency upon: (1) the filing by such public agency with the Agency of a
resolution of the governing body of such public agency requesting to be added as an Additional
Member of the Agency, and (2) adoption of a resolution of the Board approving the addition of
such public agency as an Additional Member. An Additional Member may limit in the
aforementioned resolution the scope of its Additional Membership to what is necessary or
appropriate to facilitate the financing or refinancing of one or more specified projects or
programs.
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A Member may withdraw from this Agreement upon written notice to the Board;
provided, however, that at least one Member shall be a Charter Member and no such withdrawal
shall result in the dissolution of the Agency so long as any Obligations remain outstanding. Any
such withdrawal shall be effective only upon receipt of the notice of withdrawal by the Board,
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.
Section 13. Indemnification.
To the full extent permitted by law, the Board may authorize indemnification by the
Agency of any person who is or was a Director or an officer, employee or other agent of the
Agency, 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 Director or an officer, employee or other agent of the
Agency, against expenses, including attorneys fees, judgments, fines, settlements and other
amounts actually and reasonably incurred in connection with such proceeding, if such person
acted in good faith in a manner such person reasonably believed to be in the best interests of the
Agency and, in the case of a criminal proceeding, had no reasonable cause to believe the conduct
of such person was unlawful and, in the case of an action by or in the right of the Agency, acted
with such care, including reasonable inquiry, as an ordinarily prudent person in a like position
would use under similar circumstances. The Board may purchase a policy or policies of
insurance in furtherance of any indemnification obligation created or otherwise in protection of
Directors, officers, employees or other agents.
Section 14. Contributions and Advances.
Contributions or advances of public funds and of the use of personnel, equipment or
property may be made to the Agency by the Members for any of the Purposes of this Agreement.
Payment of public funds may be made to defray the cost of any such contribution or advance.
Any such advance may be made subject to repayment, and in such case shall be repaid, in the
manner agreed upon by the Agency and the Member making such advance at the time of such
advance. It is mutually understood and agreed to that no Member has any obligation to make
advances or contributions to the Agency to provide for the costs and expenses of administration
of the Agency, even though any Member may do so. The Members understand and agree that a
portion of the funds of the Agency that otherwise may be allocated or distributed to the Members
may instead be used to make grants, loans or provide other financial assistance to governmental
units and to nonprofit organizations to accomplish any of the governmental unit's or nonprofit
organization's purposes.
Section 15. Immunities.
All of the privileges and immunities from liabilities, exemptions from laws, ordinances
and rules, and other benefits which apply to the activity of officers, agents or employees of
Members when performing their respective functions within the territorial limits of their
respective public agencies, shall apply to the same degree and extent to the Directors, officers,
employees, agents or other representatives of the Agency while engaged in the performance of
any of their functions or duties under the provisions of this Agreement.
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Section 16. Amendments.
Except as provided in Sections 3B and 12 above, or to cure any error, omission or
ambiguity in this Agreement, this Agreement shall not be amended, modified, or altered except
with (i) written consent of all holders of any outstanding bonds of the Agency, (ii) written
consent of each of Charter Member, and (iii) negative consent of each Additional Member. To
obtain the negative consent of each such Additional Member, the following negative consent
procedure shall be followed: (a)the Agency shall provide each such Additional Member with a
notice at least sixty (60) days prior to the date such proposed amendment is to become effective
explaining the nature of such proposed amendment and this negative consent procedure; (b)the
Agency shall provide each such Additional Member who did not respond a reminder notice with
a notice at least thirty (30) days prior to the date such proposed amendment is to become
effective; and (c) if no such Additional Member objects to the proposed amendment in writing
within sixty (60) days after the initial notice, the proposed amendment shall become effective
with respect to all Members.
Section 17. Effectiveness.
This Agreement shall become effective and be in full force and effect and a legal, valid
and binding obligation of each of the Members on the date that the Board shall have received
from two of the Charter Members an executed counterpart of this Agreement, together with a
certified copy of a resolution of the governing body of each such Charter Member approving this
Agreement and the execution and delivery hereof.
Section 18. 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 19. 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 Member may assign any
right or obligation hereunder without the consent of the other Members.
Section 20. 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.
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.
10
4132-5793-2569.6
Wherever in this Agreement any consent or approval is required, the same shall not be
unreasonably withheld.
This Agreement shall be governed under the laws of the State of California.
This Agreement is the complete and exclusive statement of the agreement among the
Members, which supercedes and merges all prior proposals, understandings, and other
agreements, whether oral, written, or implied in conduct, between and among the Members
relating to the subject matter of this Agreement.
11
4132-5793-2569.6
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and attested by their duly authorized representatives as of the day and year first above written.
Charter Member:
KINGS COUNTY
v1By t�_ . '
Name: , .e Neves
Title: r hairman JAN 2 S 2019
ATTEST:
i
By 1\JV1(
e,,,,,, ,
Name: Melanie Curtis
Title: Deputy Clerk to the Board of Supervisors
Charter Member:
HOUSING AUTHORITY OF THE
COUNTY OF KINGS
By C ' .€_, Ol
Namel/ Joe Neves
Title Chairman
A ►
B' til)lat
4,
Name:' ;42,c N9A-u----'
Title: ,becot cl,_,t. .a. S +.A
12
4132-5793-2569.6
FIRST AMENDMENT TO JOINT EXERCISE OF POWERS AGREEMENT
RELATING TO THE CALIFORNIA COMMUNITY HOUSING AGENCY
THIS FIRST AMENDMENT TO JOINT EXERCISE OF POWERS AGREEMENT,
dated July 30, 2019 (this"First Amendment"), is executed and delivered to amend the provisions
of that certain Joint Exercise of Powers Agreement, dated as of January 1, 2019, (the
"Agreement"), among the County of Kings and the Housing Authority of the County of Kings
(the "Charter Members") and the other members (the "Additional Members" and, together with
the Charter Members,the"Members")thereto.
WITNESSETH
WHEREAS, pursuant to Title 1, Division 7, Chapter 5 of the California Government
Code (in effect as of the date hereof and as the same may from time to time be amended or
supplemented, the "Joint Exercise of Powers Act"), the Charter Members and the Additional
Members entered into the Agreement; and
WHEREAS, pursuant to Assembly Bill No. 1912, enacted on September 29, 2018 ("AB
1912"), Section 6508.1 of the California Government Code prohibits Members from disclaiming
the retirement obligations of the Agency if the Agency were to contract with a public retirement
system(as defined in such statute);and
WHEREAS, also pursuant to AB 1912. Section 6508.2 of the Government Code requires
that the retirement obligations of the Agency be apportioned among former and current Members
such that the apportionment equals 100%of the retirement liability of the Agency if the Agency
is unable to meets it retirement obligations under the circumstances described in such statute;and
WHEREAS, the Agency does not currently have any retirement contract with any public
retirement system; and
WHEREAS, pursuant to Section 16 of the Agreement, the provisions of the Agreement
may be amended with the written consent of the Charter Members provided that no amendment
shall materially adversely affect the interests of any Additional Member unless the negative
consent of that Additional Member is also obtained; and
WHEREAS, in order to ensure that Members will not he obligated for any portion of any
future retirement obligations of the Agency, the Charter Members now find it necessary and
desirable to amend the Agreement as provided herein, which amendment does not materially
adversely affect the interests of any Additional Member; and
NOW, THEREFORE, the Charter Members, for and in consideration of the mutual
promises and agreements herein contained,do agree as follows:
4132-8752-7707.3
R:r�is County rg emrnt \ rl"D
Section 1. Authority for Amendment.
This First Amendment is hereby executed in accordance with Section 16 of the
Agreement.
Section 2. Definitions.
All terms defined in the Agreement shall have the same meanings when used in this First
Amendment,except as otherwise provided herein.
Section 3. Amendments.
A. Amendment to Section 3.A. of the Agreement.
The paragraph in Section 3.A. of the Agreement is hereby amended to read in full as
follows (additions to the Agreement shown in underline text and deletions shown in
strikethreugh text):
Pursuant to the Joint Exercise of Powers Act, there is hereby created a
public entity to be known as the "California Community Housing Agency" (the
"Agency"), and said Agency shall be a public entity separate and apart from the
Members. To the extent permitted by law, its Its debts, liabilities and obligations
do not constitute debts, liabilities or obligations of any Members, and the
Obligations of the Agency shall only be non-recourse obligations.
B. Amendment to Section 4 of the Agreement.
Section 4 of the Agreement is hereby amended to read in full as follows (additions to the
Agreement shown in underline text and deletions shown in strilEethfaugh text):
The Agency shall have the power, in its own name, to exercise the
common powers of the Members and to exercise all additional powers given to a
joint powers entity under any of the laws of the State of California, including,but
not limited to, the Joint Exercise of Powers Act, for the Purpose authorized under
this Agreement. Such powers shall include the common powers specified in this
Agreement and may be exercised in the manner and according to the method
provided in this Agreement. The Agency is hereby authorized to do all acts
necessary for the exercise of such power, including, but not limited to, any of all
of the following: to make and enter into contracts; to employ agents and
employees; to acquire, construct, improve, own, maintain and operate, or provide
for maintenance and operation, and sell, lease, pledge, assign, mortgage or
otherwise dispose, of any property, improvements, commodities, leases, contracts,
receivables, bonds or other revenue streams or assets of any kind relating to the
Purpose; to exercise the power of condemnation; to incur debts, liabilities or
obligations; to receive gifts, contributions and donations of property, funds,
services, and other forms of assistance from person, firms, corporations and any
governmental entity; to sue and be sued in its own name; to establish and collect
2
4132-8752-7707.3
fees; to form public benefit nonprofit corporations or other affiliate entities to
accomplish any of its Purposes; to make grants, loans or provide other financial
assistance to governmental, nonprofit and for profit organizations to accomplish
any of its Purposes; and generally to do any and all things necessary or convenient
to accomplish its Purposes. The boundaries of the Agency shall encompass the
boundaries of all the Members and the powers of the Agency may be exercised
anywhere within those boundaries or to the extent permitted by the laws of the
State of California, including, but not limited to the Joint Exercise of Powers Act,
outside of those boundaries, which may be outside of the State of California,
provided that the power of condemnation may only be exercised within the
jurisdictional boundaries of the Charter Members.
Notwithstanding anything to the contrary in this Agreement, the Agency
shall not have the power or the authority to enter into any retirement contract with
any public retirement system (as defined in Section 6508.2 of the California
Government Code) for any reason. The provision in this paragraph is intended to
benefit the Members and to be a confirming irrevocable obligation of the Agency
which may be enforced by the Members, individually or collectively.
Without limiting the generality of the foregoing,the Agency may issue or
cause to be issued Obligations, and pledge any property, contracts or revenues as
security to the extent permitted under the Joint Exercise of Powers Act, or any
other applicable provision of law.
The manner in which the Agency 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. The
manner in which the Agency 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.
C. Amendment to Section 20 of the Agreement.
Section 20 of the Agreement is hereby amended to read in full as follows (additions to the
Agreement shown in underline text and deletions shown in strilethreugh text):
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.
The section headings herein arc 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.
4132-8752-7707 3
This Agreement shall be governed under the laws of the State of
California.
This Agreement, along with its recitals which are an integral part and are
incorporated herein, is the complete and exclusive statement of the agreement
among the Members, which sulefeedessupersedes and merges all prior proposals,
understandings, and other agreements,whether oral,written, or implied in conduct,
between and among the Members relating to the subject matter of this Agreement.
Section 4. Effective Date.
This First Amendment shall become effective and be in full force and effect on the date
that the Board shall have received from two of the Charter Members an executed counterpart of
this First Amendment.
Section 5. 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.
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.
The recitals are an integral part of this First Amendment and are incorporated herein.
Any section not so amended as stated above shall remain in full force and effect.
4
4132-8752-7707.3
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to Joint
Exercise of Powers Agreement to be executed and attested by their duly authorized
representatives as of the day and year first above written.
Charter Member:
KINGS COUNTY
By
Nam Joe Neves
Title: Chairman Al�r " Z:+10
ATTEST:
By A! A. LI
Name: Catherine Venturella
Title: Clerk of the Board of Supervisor
Charter Member:
HOUSING AUTHORITY OF THE
C0114:),Y OF
By
Name: Do Verboon
Title: Vice Chairman
• ES (Th.
B
Name - nifer Molina
Title: •d inistrative Assistant
5
4132-8752-7707.3
Exhibit"B"
RECORDING REQUESTED BY
California Community Housing Agency
WHEN RECORDED RETURN TO:
Orrick,Herrington& Sutcliffe LLP
405 Howard Street
San Francisco, CA 94105
Attention: [•]
PUBLIC BENEFIT AGREEMENT
By and Between
CALIFORNIA COMMUNITY HOUSING AGENCY
and
CITY OF E•1
Relating to
CALIFORNIA COMMUNITY HOUSING AGENCY
ESSENTIAL HOUSING REVENUE BONDS
([•1)
1
4161-9301-3290.2
PUBLIC BENEFIT AGREEMENT
This PUBLIC BENEFIT AGREEMENT("Agreement"),dated 1,2021 and effec-
tive as of the Effective Date (as hereinafter defmed), by and between the CALIFORNIA COM-
MUNITY HOUSING AGENCY, a joint exercise of powers agency organized and existing under
the laws of the state of California(including its successors and assigns,"Owner"), and the City of
[•] ("Host").
BACKGROUND
WHEREAS,Owner is a public entity organized pursuant to a joint exercise of powers agree-
ment (the "Agreement") among a number of California counties, cities and special districts, in-
cluding Host, and is validly existing under the laws of the State of California, in particular, Title
1,Division 7,Chapter 5 of the California Government Code(the"Joint Exercise of Powers Act");
and
WHEREAS, Owner and Host have determined that there is an undersupply of affordable
housing for"middle-income" residents of Host and wish to provide for the public good and pro-
mote the health and welfare of such residents by making dwelling units available to middle-income
tenants according to income criteria to be established by Owner from time to time; and
WHEREAS, pursuant to the Joint Exercise of Powers Act and the Agreement, Owner pro-
poses to issue Bonds (as hereinafter defined) to finance Owner's acquisition of the certain multi-
family rental housing project (the"Project") located at [6] in the City of[•], California, located
on the real property site described in Exhibit A hereto; and
WHEREAS, the Project will provide public benefit through the production, preservation
and/or protection of below-market-rate rental housing, pursuant to a Regulatory Agreement and
Declaration of Restrictive Covenants (the "Regulatory Agreement") by and between Owner and
Trustee(as hereinafter defmed); and
WHEREAS, Owner intends to make a contribution to Host by (a) paying or causing to be
paid to Host all excess revenues derived from the Project after payment in full of related debt,
taxes and other expenses, and(b) granting to Host an option(but under no circumstances an obli-
gation) to purchase the Project or direct the sale of the Project and receive the net sale proceeds
thereof,in each case as set forth herein.
AGREEMENT
In consideration of the mutual covenants herein contained,and such other good and valuable
consideration the receipt and sufficiency of which is hereby acknowledged, Owner and Host mu-
tually agree as follows:
Section 1. Definitions. Capitalized terms used in this Agreement shall have the mean-
ings assigned to them in this Section 1; capitalized terms used in this Agreement and not defined
in this Section 1 or elsewhere herein shall have the meanings assigned to them in the Indenture
(herein defmed).
4161-9301-3290.2
(a) "Appraised Value"—the value of the Optioned Property as determined by an in-
dependent appraiser, selected by Owner, regularly engaged in making appraisals of property sim-
ilar to the Optioned Property.
(b) "Authority Indemnified Parties" — Owner and each of its officers, governing
members,directors, officials, employees, attorneys, agents and members.
(c) "Bonds"—bonds of the Owner issued to fmance its acquisition of the Project and
related transaction costs,bearing the designation`Essential Housing Revenue Bonds([.]),"issued
in one or more series or sub-series with such series and sub-series designations as may be set forth
in the Indenture,including subordinate bonds which may be placed with Project Administrator,or
an affiliate thereof, if applicable, and including bonds issued to refund the Bonds,if applicable.
(d) "Bond Trustee"—Wilmington Trust,National Association or any successor trus-
tee under the Indenture.
(e) "Closing"—shall have the meaning set forth in Section 8 of this Agreement.
(f) "Conveyance"—that transaction or series of transactions by which Owner shall
transfer,bargain,sell and convey any and all right,title or interest in and to the Optioned Property.
(g) "County"—the County of([i]).
(h) "Effective Date"— shall have the meaning set forth in Section 12 of this Agree-
ment.
(i) "Extraordinary Costs and Expenses" — shall have the meaning set forth in the
Indenture.
(j) "Fair Market Value"—the price, in no event less than the Purchase Option Price,
a willing purchaser and a willing seller in an arm's length transaction would agree upon as a fair
sales price that could reasonably be expected to be received upon the sale of the Optioned Property,
as determined by Owner pursuant to such means as Owner shall deem suitable for such purpose;
provided that Owner's determination of the manner of sale and Fair Market Value shall be final
and incontestable.
(k) "Indenture" — the Indenture of Trust between Owner, as issuer, and the Bond
Trustee, as trustee,pursuant to which the Bonds are issued.
(1) "Option"—has the meaning set forth in Section 2 of this Agreement.
(m) "Option Term Commencement Date"—the date sixteen(16) years from the date
of issuance of the Bonds.
(n) "Option Term"—shall commence on the Option Term Commencement Date and,
if not exercised,shall terminate at 11:59 p.m.local time on the date that is nineteen(19)years from
the Option Term Commencement Date.
2
4161-9301-3290.2
(o) "Optioned Property" — means all of Owner's right, title and interest (which in-
cludes fee simple title to the real property) in and to all property and assets used in or otherwise
related to the operation of the Project including, without limitation, all real property and interests
in real property, all tangible and intangible personal property including furniture, fixtures, equip-
ment, supplies, intellectual property, licenses, permits, approvals, and contractual rights of any
kind or nature together with the right to own and carry on the business and operations of the Pro-
ject.
(p) "Outstanding" — with respect to Bonds, as of any given date, all Bonds which
have been authenticated and delivered by Trustee under the Indenture,except: (i)Bonds cancelled
at or prior to such date or delivered to or acquired by Trustee at or prior to such date for cancella-
tion;(ii)Bonds deemed to be paid in accordance with Article VIII of the Indenture;and(iii)Bonds
in lieu of which other Bonds have been authenticated under the Indenture.
(q) "Project Administrator"— [o], a [0], and its successors and assigns.
(r) "Project Administrator Sale"— a sale of the Optioned Property at its Appraised
Value to Project Administrator in accordance with Section 6(c)of this Agreement.
(s) "Project Debt"— any debt secured by the Project and incurred to finance or re-
finance Owner's acquisition of the Project and related transaction costs, including any portion of
the Bonds and any bonds, notes or other indebtedness issued by Owner to refund the Bonds in
whole or in part.
(t) "Purchase Option Price"—the sum of the amounts set forth below:
i. an amount sufficient to either prepay, redeem in whole or fully defease
for redemption on the earliest call date all Project Debt;plus
ii. any fees or other amounts not identified in clause(i)that may be necessary
to effect the complete release from and discharge of any lien, mortgage or other en-
cumbrance on the Optioned Property(the amounts in clauses (i) and(ii)being collec-
tively referred to as the"Satisfied Indebtedness");plus
iii. any amounts due to Owner(including the Authority Indemnified Persons,
as provided in the Indenture),the Bond Trustee or any predecessor or successor,or any
other Person under any indenture, loan agreement, bond, note or other instrument re-
lating to any Satisfied Indebtedness (including, without limitation, indemnification
amounts,Owner's Extraordinary Costs and Expenses,recurrent and extraordinary fees
and expenses, and reimbursable costs and expenses of any kind or nature);plus
iv. Transaction Costs; minus
v. The amount of any Project Debt assumed by Host; and minus
vi. Any funds held by or for Owner under the Indenture applied to the retire-
ment of Project Debt, but, for avoidance of doubt, the Owner may retain amounts in
3
4161-9301-3290.2
the Extraordinary Expense Fund or similar funds under the Indenture it deems reason-
able as a reserve against future costs and expenses of the type described in subpara-
graph(iii)above, which amount shall be final and incontestable.
(u) "Third-Party Sale"-a sale of the Optioned Property to a third-party purchaser at
Fair Market Value.
(v) "Transaction Costs"—to the extent not otherwise described herein, any costs or
expenses of any kind or nature associated with or incurred by Owner and Host in connection with
the consummation of the Conveyance,any refmancing of the Project or assumption of Project Debt
regardless of whether such costs and expenses are customarily borne by the seller or purchaser in
any such transaction, including but not limited to taxes, recording fees and other impositions,
Owner's and Host's legal and other professional fees, fees for verification agents,bidding agents,
escrow agents, custodians or trustees, assumption fees,prepayment fees, the cost of the appraisal
(regardless of whether the Appraised Value is ultimately determined to be the Fair Market Value),
surveys, inspections,title commitments,title insurance premiums and other title-related fees, and
all amounts required for indemnification of Authority, Trustee and Project Administrator.
Section 2. Economic Contribution. To provide a public benefit and economic contri-
bution to Host as described in the Recitals to this Agreement, Owner hereby (a) agrees to pay or
cause to be paid to Host the amounts held in the Excess Revenue Fund pursuant to Section 3 and
the Indenture, and(b) grants to Host an option(the"Option")with respect to the Optioned Prop-
erty, as more fully described in Section 6 of this Agreement.
Section 3. Excess Revenues.
(a) Owner shall cause Trustee to create an account(the"Excess Revenue Fund")
under the Indenture into which surplus cash from the Project will be deposited following payment
of all other obligations and expenses as required pursuant to the Indenture. Upon exercise of the
Option as provided herein,Trustee shall transfer the balance of the Excess Revenue Fund to Host
in connection with the Conveyance.
(b) On the first date upon which no Bonds or other Project Debt remains Out-
standing, which may be the date of the Conveyance, any and all moneys in the Excess Revenue
Fund shall be transferred by Trustee to Host,to be applied by Host in its sole discretion. Thereaf-
ter,for so long as Owner remains the owner of the Project and there is no Project Debt outstanding,
Owner shall pay or cause to be paid to Host,all Project-related revenue in excess of Project-related
expenses, to be applied by Host in its sole discretion. At Host's written request and expense,
Owner will appoint a third-party paying agent or trustee to handle payment of excess revenues to
Host following retirement of all Bonds and all Project Debt.
(c) Upon any Conveyance of the Project by Owner pursuant to the terms hereof,
Owner shall apply the proceeds of the sale(i)to redeem the Bonds then Outstanding,(ii)to prepay,
redeem in whole or fully defease any other Project Debt,and(iii)to pay any fees or other amounts
listed in(iii) and(iv) of the Purchase Option Price definition. Any proceeds remaining following
the foregoing payments shall be transferred to the Host.
4
4161-9301-3290.2
Section 4. Option Term. The Option shall become effective on the Option Term Com-
mencement Date and may be exercised during the Option Term at Host's sole discretion. Owner
agrees that it will not enter into any agreement to sell all or any part of the Optioned Property
during the Option Term,without the specific written request of Host and written consent of Owner,
which consent shall not be unreasonably withheld, and, if Project Debt is outstanding, delivery of
an Opinion of Bond Counsel to Owner substantially to the effect that such sale will not, in and of
itself, adversely affect the exclusion of interest on the Bonds from gross income for purposes of
federal income taxation. Upon the expiration of the Option Term, Owner shall use its best efforts
to sell the Optioned Property at Fair Market Value. Following the expiration of the Option Term,
Host shall not be precluded from purchasing all or any portion of the Optioned Property from
Owner at a price and on the terms agreed upon by Host and Owner, but Owner shall not be pre-
cluded from seeking or agreeing to sell, or consummating the sale of, all or any portion thereof to
any third party.
Section 5. Manner of Exercise of Option.
(a) General. Within the Option Term and in compliance with and observance of all
of the terms and conditions of this Agreement,Host may,in its sole discretion,exercise the Option
by:
i. Purchasing the Optioned Property upon payment of the Purchase Option
Price;
ii. Directing Owner to cause a Third-Party Sale; or
iii. Directing Owner to cause a Project Administrator Sale.
(b) Owner's Notice.At least six(6)months prior to the Option Term Commencement
Date, Owner shall provide Host notice of the Option Term Commencement Date;provided,how-
ever,that failure to provide such notice shall not affect the sufficiency or validity of any proceed-
ings taken in connection with the exercise of the Option.
(c) Host's Notice. To exercise the Option, Host shall provide Owner notice of its
intent to exercise the Option at any time prior to the end of the Option Term.
(d) Owner's Response. Within fifteen(15)business days of its receipt of Host's no-
tice of intent to exercise the Option, Owner shall provide Host with a written estimate of the
amounts comprising the Purchase Option Price.
(e) Exercise Notice. Within fifteen (15) business days of its receipt of the esti-
mated Purchase Option Price, Host shall provide Owner written notice either (i) that it is with-
drawing its intent to exercise the Option, which will under no circumstances cause the Option
Term to end, or (ii) that it intends to proceed with the exercise of the Option and specifying in
accordance with subparagraph(a) above, whether Host elects to purchase the Optioned Property,
cause a Third-Party Sale, or cause a Project Administrator Sale(an"Exercise Notice").
Section 6. Fixing of Option and Purchase Price; Contractual Obligation.
5
4161-9301-3290.2
(a) Purchase Option. If Host notifies Owner of its intent to purchase the Optioned
Property in accordance with Section 5 hereof, Host shall deliver to Owner a purchase agreement
therefor in form and substance satisfactory to Owner and its counsel subject to the terms and con-
ditions of this Agreement. Unless Owner shall have objected to the form of purchase agreement
within fifteen(15) business days of its receipt thereof, Owner shall be deemed to have accepted
the terms of the purchase agreement without the need for the signature of Owner thereon,and Host
shall be obligated to purchase and Owner shall be obligated to sell and convey to Host good and
marketable title to the Optioned Property at the Purchase Option Price within ninety (90) days
thereafter. Upon Closing, Host may apply amounts in the Excess Revenue Fund to the payment
of the Purchase Option Price and thereafter shall apply such funds in its sole discretion.
(b) Third-Party Sale. If Host notifies Owner of its request for a Third-Party Sale in
accordance with Section 5 hereof, within fifteen (15) business days of Owner's receipt of such
Exercise Notice, Owner shall select an appraiser to provide the Appraised Value. Owner shall
then market the Optioned Property at the Appraised Value and use its best efforts to negotiate,sell
and convey good and marketable title to the Optioned Property at Fair Market Value. The Owner
shall endeavor to sell the Optioned Property at Fair Market Value,by such means as it shall deter-
mine to be suitable for such purpose; provided that Owner's determination of the manner of sale
shall be fmal and incontestable, and Owner shall incur no liability to any party as a result of or
otherwise in connection with the sale or failure to sell. Nothing herein shall require or prevent
Owner from selling the Optioned Property subject to the restrictions set forth in the Regulatory
Agreement or similar types of restrictions established by Owner.
(c) Project Administrator Sale. If Host notifies Owner of its request for a Project
Administrator Sale in accordance with Section 5 hereof, within fifteen (15) business days of
Owner's receipt of such Exercise Notice,Owner shall select an appraiser to provide the Appraised
Value to Owner, Host and Project Administrator. If within fifteen(15)business days of receipt of
the Appraised Value, Project Administrator agrees to purchase the Optioned Property at the Ap-
praised Value,Owner shall cause Project Administrator to deliver to Owner a purchase agreement
therefor in form and substance satisfactory to Owner and its counsel subject to the terms and con-
ditions of this Agreement,and Owner shall be obligated to sell and convey to Project Administrator
good and marketable title to the Optioned Property at the Appraised Value, but in no event less
than the Purchase Option Price, within ninety (90) days thereafter. If Project Administrator fails
to agree to purchase the Optioned Property,Host may rescind the Exercise Notice or direct Owner
to proceed to close the sale under the terms of a Third-Party Sale. It shall be a condition of effec-
tiveness to any Project Administrator Sale that the new owner (Project Administrator or its de-
signee)shall enter into a new regulatory agreement and/or declaration of restrictive covenants,and
cause the same to be recorded in the real property records of the County,providing for the contin-
ued operation of the Project for a period of not less than fifteen(15) years, or such other term as
Host may agree to in writing, as middle-income housing with occupancy and income restrictions
on terms substantially similar to those contained in the Regulatory Agreement.
Section 7. Terms of Conveyance of Optioned Property.
(a) The Conveyance shall be in the nature of a grant deed in which Owner shall de-
liver one or more deeds,bills of sale,or other instruments of transfer without recourse or warranty
of any kind or nature.
6
4161-9301-3290.2
(b) The Optioned Property will be conveyed in AS IS CONDITION, WITH ALL
FAULTS, and without representations or warranties of any kind or nature as to the condition of
the Optioned Property.
(c) In the event of a Conveyance to the Host, Host acknowledges that Owner will
convey the Optioned Property AS IS and that OWNER IS MAKING NO WARRANTIES AND
REPRESENTATIONS,EXPRESS OR IMPLIED,with reference to the condition of the Optioned
Property. HOST WAIVES ANY AND ALL CLAIMS AGAINST OWNER, INCLUDING BUT
NOT LIMITED TO,CLAIMS BASED IN PART,INCLUDING,BUT NOT LIMITED TO,NEG-
LIGENCE,STRICT LIABILITY AND STRICT RESPONSIBILITY,IN CONTRACT,IN WAR-
RANTY, IN EQUITY, OR UNDER ANY STATUTE, LAW OR REGULATION ARISING DI-
RECTLY OR INDIRECTLY OUT OF ANY CONDITION OF THE OPTIONED PROPERTY.
(d) There shall be no partial transfer and that, upon consummation of the Convey-
ance, Owner shall be fully divested of any and all right, title or interest in and to the Optioned
Property.
(e) Upon payment of the Purchase Option Price,as adjusted for any prorations,cred-
its and charges, Owner shall convey title to the Optioned Property by quit claim deed reasonably
satisfactory in form and substance to Host.
Section 8. Closing of Conveyance of Optioned Property. The closing of the Convey-
ance to the Host ("Closing") shall take place not later than the ninetieth (90th) calendar day fol-
lowing the date on which Owner and Host agree on the terms of the purchase agreement pursuant
to Section 6(a) hereof at such time within normal business hours and at such place as may be
designated by Host.
(a) Prorations.All general and special real property taxes and assessments, and rents
shall be prorated as of the Closing,with Host responsible for all such items to the extent arising or
due at any time following the closing. General real property taxes shall be prorated at the time of
Closing based on the net general real property taxes for the year of Closing.
(b) Limitation. If, after taking into account all adjustments and prorations, the net
amount due Owner at Closing is less than the Purchase Option Price, it is fully understood and
agreed that in no event shall Owner receive proceeds less than the amount necessary to fully retire
or defease the Bonds and otherwise satisfy all of the payments constituting the components of the
Purchase Option Price and the prorations in Section 8(a).
(c) Possession. Physical possession of the Optioned Property shall be delivered to
Host at the time of Closing.
Section 9. Optioned Property: Title Insurance, Title Defects.
(a) Within fifteen(15) business days after it receives an Exercise Notice specifying
Host's intent to purchase the Optioned Property,Owner shall provide Host with a title commitment
(the "Title Commitment") in the customary ALTA form of Standard Owner's Policy of Title In-
surance in Host's favor, for the amount equivalent to the Purchase Option Price (whichever is
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4161-9301-3290.2
applicable), with a commitment to insure good and marketable fee simple title to the Optioned
Property in Host, issued by a title insurance company licensed to do business in the State of Cali-
fornia and acceptable to Host (the "Title Company"). The policy shall show the status of title to
the Optioned Property and show all exceptions, including easements, restrictions, rights-of-way,
covenants, reservations, and other conditions of record, if any, affecting the subject real estate.
Accompanying the Title Commitment, Owner shall also have Title Company furnish Host with
true,correct,complete,and legible copies of all documents affecting title to the subject real estate.
The cost and expense of such Standard Owner's Title Commitment shall be payable as a Transac-
tion Cost. Host shall pay the additional premium due if Host elects to obtain an extended coverage
policy of title insurance and/or extended coverage endorsements.Owner shall cooperate with Host,
at no expense to Owner, by providing an affidavit to Title Company to induce Title Company to
issue to Host at Closing a"GAP"endorsement to the Title Commitment showing the effective date
of the Title Commitment to be the time and date of Closing.
(b) If the Title Commitment shows exceptions to title which are unacceptable to Host,
Host shall, within ten(10)business days after receipt of the Title Commitment and not later than
twenty(20)business days before the date for Closing,notify Owner of such fact and Owner shall
have twenty(20)business days after Owner receives Host's written objections to cure such defects
and to present a Title Commitment on the basis of which Closing may occur or to notify Host that
Owner will not cure same. If Owner cannot or will not cure such defects within such twenty(20)
business day period and thereafter convey title to the Optioned Property as required in this Agree-
ment,then Host shall have the right(at Host's option)to either:
(i) Rescind the Exercise Notice and Owner may proceed to close the sale under
the terms of a Third-Party Sale, if there is a third-party offer; or
(ii) Accept whatever title Owner can or will convey, without reduction in the
purchase price because of such title defects. Any exceptions to title disclosed on the
Title Commitment to which Host does not timely object to in writing or to which Host
objects but thereafter accepts by Closing shall be included as a"Permitted Exception."
Section 10. Assignment of Option. Host shall not assign the Option without the prior
written consent of Owner, which consent shall not be unreasonably withheld, and delivery of an
Opinion of Bond Counsel to Owner substantially to the effect that such assignment will not,in and
of itself,adversely affect the exclusion of interest on the Bonds from gross income for purposes of
federal income taxation.Notwithstanding the foregoing, neither party to this Agreement shall as-
sign its interests,obligations,rights and/or responsibilities under this Agreement without the prior
written consent of the other party.
Section 11. Recording of Agreement. This Agreement, and any amendment thereto,
shall be recorded with the recorder's office of the County. Host shall cooperate with Owner to
remove any such recorded Agreement or amendment thereto from title to the Optioned Property
upon Owner's reasonable request therefor and, in any event, by no later than the earliest of(i) a
Conveyance or(ii)the expiration of the Option Term. In the event that,within said time,Host fails
to so cooperate and provide its original signature to a termination of such recorded Agreement or
amendment thereto, then Host hereby irrevocably constitutes and appoints Owner as Host's true
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4161-9301-3290.2
and lawful attorney (and agent-in-fact) strictly for the purpose of executing in Host's name any
such termination.
Section 12. Conditions Precedent; Effective Date. Effectiveness of this Agreement
shall be conditioned upon satisfaction of each of the following conditions:
(a) Issuance of the Bonds;
(b) Purchase of the Optioned Property by Owner as evidenced by a grant deed or
comparable instrument; and
(c) Recording in the real property records of the County of this Agreement and
the Regulatory Agreement.
The first date upon which each of the above conditions is satisfied shall be the effective date of
this Agreement(the"Effective Date").
Section 13. No Individual Liability.
(a) The Owner shall not be directly, indirectly, contingently or otherwise liable
for any costs, expenses, losses, damages, claims or actions, of any conceivable kind on any con-
ceivable theory, under or by reason of or in connection with this Agreement or any sale or Con-
veyance or failure or price thereof or application of proceeds thereof, except only as to moneys
available therefor under and in accordance with the Indenture and this Agreement.
(b) No Authority Indemnified Person shall be individually or personally liable
for the payment of any sum hereunder or be subject to any personal liability or accountability by
reason of the execution and delivery of this Agreement, or by any proceedings for the determina-
tion of the Purchase Option Price,or Host's exercise or waiver of same,or otherwise except in the
case of such Authority Indemnified Person's own willful misconduct.
Section 14. Notices,Governing Law,Binding Effect and Other Miscellaneous Provi-
sions.
(a) Notices. All notices provided for in this Agreement shall be in writing and
shall be given to Owner or Host at the address set forth below or at such other address as they
individually may specify thereafter by written notice in accordance herewith:
If to Owner: California Community Housing Agency
1400 W. Lacey Blvd.,Building 1
Hanford,California 93230
Attention: Michael LaPierre
With a copy to: [•1
If to Host: City of[40]
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4161-9301-3290.2
Such notices shall be deemed effective upon actual delivery or upon the date that any such delivery
was attempted and acceptance thereof was refused, or if mailed, certified return receipt requested,
postage prepaid,properly addressed,three(3)days after posting.
(b) Consents and Approvals. All consents and approvals and waivers required
or asserted hereunder shall be in writing, signed by the party from whom such consent, approval,
waiver or notice is requested, provided that no written consent or approval of Owner shall be re-
quired for any action that Host may,in its reasonable good faith judgment,find it necessary to take
in the event of an emergency.
(c) Cooperation. Owner will keep Host advised of its complete name at all
times, including any change of such name. Host will keep Owner advised of its complete name at
all times, including any change of such name. Unless the parties otherwise agree, Owner shall
cooperate with Host and provide Host with all information and records in its possession,and access
to counsel and other professionals,to assist Host in determining and updating the Purchase Option
Price. On the first date that Project Debt is not Outstanding, and Owner remains the owner of the
Project,Owner shall promptly notify Host of the Purchase Option Price.
(d) Maintenance of Membership. In order to preserve the Project's exemption
from property tax, Host agrees to remain a member of the Owner joint powers authority so long
as any Bonds remain outstanding.
(e) Pronouns. Where appropriate to the context, words of one gender include
all genders, and the singular includes the plural and vice versa.
(f) Amendments. This Agreement may not be modified except in a written in-
strument signed by Host and Owner.
(g) Complete Agreement. This Agreement together with all schedules and ex-
hibits attached hereto and made part thereof supersedes all previous agreements, understandings
and representations made by or between the parties hereto.
(h) Governing Law.This Agreement shall be governed by and construed in ac-
cordance with the laws of the State of California,without regard to conflicts of law principles. All
claims of whatever character arising out of this Agreement, or under any statute or common law
relating in any way, directly or indirectly, to the subject matter hereof or to the dealings between
Owner and any other party hereto,if and to the extent that such claim potentially could or actually
does involve Owner,shall be brought in any state or federal court of competent jurisdiction located
in Kings County,California. By executing and delivering this Agreement, each party hereto irrev-
ocably: (i) accepts generally and unconditionally the exclusive jurisdiction and venue of such
courts; (ii) waives any defense of forum non-conveniens; and (iii) agrees not to seek removal of
such proceedings to any court or forum other than as specified above. The foregoing shall not be
deemed or construed to constitute a waiver by Owner of any prior notice or procedural require-
ments applicable to actions or claims against or involving governmental units and/or political sub-
divisions of the State of California that may exist at the time of and in connection with such matter.
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4161-9301-3290.2
(i) Subordination. This Agreement shall be subordinate to any claim, pledge
or interest in the Optioned Property securing the Bonds or any Project Debt.
6) Legal Construction. In case any one or more of the provisions contained in
this Agreement shall for any reason be held by a court of competent jurisdiction to be invalid,
illegal or unenforceable in any respect,such invalid provision shall be deemed severable,and shall
not affect the validity or enforceability of any other provisions of this Agreement, all of which
shall remain fully enforceable.
(k) Term.This Agreement shall terminate upon the earliest of a(i)Conveyance
or(ii)the expiration of the Option Term in accordance with this Agreement.
(1) Captions. The captions used in this Agreement are solely for convenience
and shall not be deemed to constitute a part of the substance of the Agreement for purpose of its
construction.
[SIGNATURE PAGE TO FOLLOW]
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4161-9301-3290.2
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth
above.
CALIFORNIA COMMUNITY HOUSING
AGENCY
By:
CITY OF E•1
By:
Signature Page to Public Benefit Agreement
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4161-9301-32902
•
A Notary Public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy,or validity of that document.
State of California )
County of )
On ,before me,
(insert name and title of the officer)
Notary Public,personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s)is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s)on the instrument
the person(s),or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
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4161-9301-3290.2
EXHIBIT A
LEGAL DESCRIPTION OF REAL PROPERTY
4161-9301-3290.2