HomeMy WebLinkAbout7359 RESOLUTION NO. 7359
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ARCADIA,
CALIFORNIA, AUTHORIZING THE CITY TO BECOME A MEMBER OF
THE CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT
AUTHORITY COMMUNITY IMPROVEMENT AUTHORITY ("CSCDA CIA")
AND AUTHORIZING THE CITY MANAGER TO ENTER INTO PUBLIC
BENEFIT AGREEMENTS WITH CSCDA CIA IN SUPPORT OF THEIR
ISSUANCE OF TAX-EXEMPT BONDS TO CREATE OR PRESERVE
MIDDLE-INCOME RENTAL HOUSING IN ARCADIA
WHEREAS, the CSCDA CIA 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 the CSCDA
CIA among certain public agencies (the "Agreement"), in order to 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 CSCDA CIA 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 CSCDA CIA; 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 CSCDA CIA;
and
WHEREAS, CSCDA CIA 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, CSCDA CIA 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, CSCDA CIA 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, CSCDA CIA proposes, pursuant to one or more Public Benefit
Agreements (the "Public Benefit Agreements"), between CSCDA CIA 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 CSCDA CIA to sell such Project,
commencing on the date fifteen (15) years after CSCDA CIA'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 CSCDA CIA for the aforesaid purposes;
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA,
DOES HEREBY FIND, DETERMINE AND RESOLVE AS FOLLOWS:
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SECTION 1. The foregoing recitals are true and correct.
SECTION 2. The City Council hereby authorizes the City to become an Additional
Member of CSCDA CIA. The Agreement is hereby approved and the City Manager or the
designee 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 CSCDA CIA'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 CSCDA CIA of
all financing documents relating thereto to which CSCDA CIA 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 CSCDA CIA; or (iv) except as provided in this Resolution, take any further action
with respect to CSCDA CIA or its membership therein.
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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,
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.
icZei7 -----
Mayor of the ' y of Arcadia
ATTEST:
Pity Clerk
APPROVED AS TO FORM:
Stephen P. Deitsch
City Attorney
Exhibit "A" - Joint Exercise of Powers Agreement Relating to the CSCDA CIA
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. 7359 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
City Clerk of the City of Arcadia
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Exhibit"A"
JOINT EXERCISE OF POWERS AGREEMENT
RELATING TO THE CSCDA COMMUNITY IMPROVEMENT AUTHORITY
THIS AGREEMENT, dated as of October 15, 2020, 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, 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 bonds, notes, commercial paper or any other evidences of
indebtedness, leases, installment sale or other financing agreements, obligations or certificates of
participation therein (each and all herein referred to as "Bonds"), 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
WHEREAS, the Members have determined to specifically authorize a public entity
authorized pursuant to the Joint Exercise of Powers Act to issue Bonds pursuant to the Joint
Exercise of Powers Act or other applicable provisions of the laws of the State of California; and
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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 of any
nature, including, but not limited to, workforce housing projects and other capital or working
capital projects, purchase or acquisition of property, improvements, leases, contracts, 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; and
WHEREAS,by this Agreement,each Member desires to create and establish the"CSCDA
Community Improvement Authority" 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 Bonds for any purpose or activity permitted under the Joint Exercise of Powers Act or any other
law. 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
Bonds issued or caused to be issued by the Authority (defined below) shall no longer be
outstanding under the terms of the indenture, trust agreement, resolution or other instrument
pursuant to which such Bonds are issued.
Section 3. Authority.
A. CREATION AND POWERS OF AUTHORITY.
Pursuant to the Joint Exercise of Powers Act,there is hereby created a public entity
to be known as the "CSCDA Community Improvement Authority" (the "Authority"), and
said Authority shall be a public entity separate and apart from the Members. Its Bonds and
other debts, liabilities and obligations do not constitute debts, liabilities or obligations of
any Members,and Bonds issued by the Authority shall be non-recourse to Authority except
only as and to the extent moneys or other assets are pledged by the Authority to the Bonds
by the indenture, trust agreement, resolution or other instrument pursuant to which such
Bonds are issued.
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B. BOARD.
The Authority shall be administered by the Board of Directors(the"Board,"or the
"Directors" and each a "Director") consisting of the Commissioners of California
Statewide Communities Development Authority(the "CSCDA"). The term of office as a
member of the Board shall terminate when such member shall cease to be a Commissioner
of the CSCDA and the successor to such Commissioner shall become a member of the
Board.
The Board may appoint an alternative Director for each Director who may act as a
Director in place of and during the absence or disability of such regular Director(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).
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.
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 Authority 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 Authority 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 Authority (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.
Subject to the applicable provisions of any resolution,indenture,trust agreement or
other instrument or proceeding authorizing or securing Bonds (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
Authority to have custody of all money of the Authority, from whatever source derived and
shall have the powers, duties and responsibilities specified in Sections 6505, 6505.5 and
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4130-8559-5173.3
6509.5 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 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 Authority 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 Authority.
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
California. To the extent permitted by the Brown Act, such meetings may
be held by telephone conference.
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(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
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 Authority 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 Authority 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
any 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 Authority 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; 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 Authority shall encompass the
boundaries of all the Members and the powers of the Authority 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.
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4130-8559-5173.3
Notwithstanding anything to the contrary in the Agreement or otherwise, the Authority
shall not have the power to and shall not 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 Members and to be a confirming
irrevocable obligation of the Authority which may be enforced by Members individually or
collectively.
Without limiting the generality of the foregoing, the Authority may issue or cause to be
issued Bonds, 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 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. 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 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, 2021.
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 Authority, all property of the
Authority 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. Bonds.
From time to time the Authority shall issue Bonds, 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.
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 Authority. The expenses of the Board shall be paid from the
proceeds of the Bonds, payments made by Bond obligors or other third parties, project revenues,
or any other unencumbered funds of the Authority available for such purpose.
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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 Member or pledge of the faith and credit of the Members or the Authority.
The Bonds shall be only special obligations of the Authority, and the Authority shall under no
circumstances be obligated to pay the Bonds except from revenues and other funds pledged
therefor. Neither the Members nor the Authority shall be obligated to pay the principal of,
premium, if any, or interest on the Bonds, or other costs incidental thereto or related to any project
or program financed or refinanced with Bonds, except the Authority 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 Authority shall be pledged to the payment of the principal
of, premium, if any, or interest on the Bonds, or any costs related thereto or to any project or
program financed or refinanced thereby,nor shall the Members or the Authority in any manner be
obligated to make any appropriation for such payment.
No covenant or agreement contained in any Bond or related document shall be deemed to
be a covenant or agreement of any Director, or any officer, employee or agent of the Authority in
his or her individual capacity, and neither the Board of the Authority nor any Director or 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 or by reason of any project or
program financed or refinanced with Bonds.
Section 9. 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
Member.
The Treasurer of the Authority shall cause an independent audit to be made of the books
of accounts and financial records of the Authority 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 Authority
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 Authority. Such report if
made shall be filed within 12 months of the end of the Fiscal Year or Years under examination.
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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 Authority, the amount of receipts since the last
such report, and the amount paid out since the last such report (which may exclude amounts held
by a trustee or other fiduciary in connection with any Bonds 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 Authority and shall be a charge against any unencumbered funds of the Authority 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 Authority funds, the Treasurer of the
Authority shall receive, have the custody of and disburse Authority 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 Authority 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 Authority 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.
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Qualifying public agencies may also be added as Non-Charter Members ("Additional
Members") of the Authority upon: (1) the filing by such public agency with the Authority of a
resolution of the governing body of such public agency requesting to be added as an Additional
Member of the Authority, 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.
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 Authority so long as any Bonds 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
Authority of any person who is or was a Director 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 Director or an officer, employee or other agent of the
Authority, 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
Authority and, in the case of a criminal proceeding,had no reasonable cause to believe the conduct
of such person was unlawful and, in the case of an action by or in the right of the Authority, acted
with such care, including reasonable inquiry, as an ordinarily prudent person in a like position
would use under similar circumstances. 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 Authority 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 Authority 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 Authority to provide for the costs and expenses of administration of the
Authority,even though any Member may do so. The Members understand and agree that a portion
of the funds of the Authority 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.
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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 Authority while engaged in the performance of any of their functions
or duties under the provisions of this Agreement.
Section 16. Amendments.
Except as provided in Sections 3B and 12 above, this Agreement shall not be amended,
modified, or altered, unless the written consent of each of the Charter Members is obtained;
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. To obtain the
negative consent of each such Additional Member, the following negative consent procedure shall
be followed: (a) the Authority 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 Authority 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.
10
4130-8559-5173.3
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.
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, including its recitals which are incorporated herein, is the complete and
exclusive statement of the agreement among the Members, which supersedes 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
4130-8559-5173.3
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:
Yolo County
By S
Name:G andy
Title:Chair,Board of Supervisors
ATTEST: „,,,,,,,,,,,, Approved as to Form:
eisoI• S UPFR-
4:?•i.:*****6*.4fe:7
Megan Ste tfeld
Title= • : ”" viri � •
/go Alp Assistant County Counsel
.�1�•, •p a..a�• •••
•
COuN4.40441, 'c,
Charter Member:
ATTEST: City of Woodland
By I1 s! By t�
Name: Ana B. Gonzale Ira Name: Rich Lansburgh
Title: City Clerk IMO
Title: Mayor
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12
4130-8559-5173.3
Exhibit"B"
OHS Draft
1/15/20
RECORDING REQUESTED BY
CSCDA Community Improvement Authority
WHEN RECORDED RETURN TO:
Orrick, Herrington& Sutcliffe LLP
405 Howard Street
San Francisco, CA 94105
Attention: Steffi Chan
THIS DOCUMENT IS EXEMPT FROM RECORDING FEES PURSUANT TO SECTION 27383 OF THE
CALIFORNIA GOVERNMENT CODE
PUBLIC BENEFIT AGREEMENT
By and Between
CSCDA COMMUNITY IMPROVEMENT AUTHORITY
and
[CITY]
Dated as of[Date]
Relating to
CSCDA COMMUNITY IMPROVEMENT AUTHORITY
ESSENTIAL HOUSING REVENUE BONDS,SERIES 20_[A]
([PROJECT NAME])
[and
CSCDA COMMUNITY IMPROVEMENT AUTHORITY
SUBORDINATE ESSENTIAL HOUSING REVENUE BONDS, SERIES 20_[B]
([PROJECT NAME])]
4134-7659-4982.5
PUBLIC BENEFIT AGREEMENT
This PUBLIC BENEFIT AGREEMENT ("Agreement ") is dated as of [Date] by and
between the CSCDA COMMUNITY IMPROVEMENT AUTHORITY 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] ("Hose).
BACKGROUND
WHEREAS, Owner proposes to issue Bonds (as hereinafter defmed) to fmance Owner's
acquisition of the certain multifamily rental housing project(the "Project") located at [Address],
located on the real property site described in Exhibit A hereto; and
WHEREAS, Owner intends to sell the Project at the instigation of the Host or upon the
retirement of all Project Debt(as defmed herein)pursuant to this Agreement.
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
mutually agree as follows:
Section 1. Right to Cause Sale.Host shall have the right to cause("Sale Right")Owner
to sell the Property(as herein defmed) upon payment by the purchaser thereof(the"Purchaser")
of the Sale Price (as herein provided) within the Sale Right Term (as herein defmed) and in
compliance with and observance of all of the terms and conditions of this Agreement.
Section 2. Definitions. Capitalized terms used in this Agreement shall have the
meanings assigned to them in this Section 2; capitalized terms used in this Agreement and not
defmed in this Section 2 or elsewhere herein shall have the meanings assigned to them in the
Indenture(herein defined).
(a) "Bonds" — collectively, (i) the CSCDA Community Improvement Authority
Essential Housing Revenue Bonds, Series 20_[A] ([Project Name]) (the "Series [A] Bonds"),
[and(ii)the CSCDA Community Improvement Authority Subordinate Essential Housing Revenue
Bonds,Series 20_[B] ([Project Name])(the"Series[B]Bonds")],with such other series and sub-
series designations as may be set forth in the Indenture, originally issued to fmance Owner's
acquisition of the Project and related transaction costs.
(b) "Bond Trustee"—[Trustee] or any successor trustee under the Indenture.
(c) "Closing"—shall have the meaning set forth in Section 8 hereof.
(d) "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 Property.
(e) "Extraordinary Costs and Expenses" — shall have the meaning set forth in the
Indenture.
4134-7659-4982.5
(f) "Indenture"—the Indenture of Trust between Owner,as issuer,and Bond Trustee,
as trustee,pursuant to which the Bonds were issued.
(g) "Minimum Sale Price" — means the lowest price at which the Property may be
sold, as described in Section 4(c)hereof.
(h) "Outstanding" — with respect to Bonds, as of any given date, all Bonds which
have been authenticated and delivered by the Trustee under the Indenture, except: (i) Bonds
cancelled at or prior to such date or delivered to or acquired by the Trustee at or prior to such date
for cancellation; (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.
(i) "Owner Indemnified Person" — Owner and each of its officers, governing
members, directors, officials, employees, attorneys, agents and members.
(j) "Project Administrator" — [ ] and its successors and
assigns.
(k) "Project Debt" — any debt secured by the Project and incurred to finance or
refmance 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 improve the Project
or to refund the Bonds in whole or in part.
(I) "Property" — means all of Owner's right, title and interest (which includes 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, equipment,
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 Project.
(m) "Regulatory Agreement"—means the Regulatory Agreement and Declaration of
Restrictive Covenants by and between Owner and Bond Trustee,relating to the Bonds.
(n) "Sale Price" — purchase price of the Property to be paid by the Purchaser upon
sale of the Property by Owner pursuant to Host's Sale Right in compliance with Section 4 hereof
or sale by Owner pursuant to Section 5 hereof.
(o) "Sale Right" — means the right of Host to cause Owner to sell the Property
pursuant to Section 1 hereof.
(p) "Sale Right Exercise Date"—the date fifteen(15)years from the issuance of the
Bonds.
(q) "Sale Right Term"—shall commence on the Sale Right Exercise Date and, if not
exercised, shall terminate on the date on which no Project Debt remains Outstanding.
(r) "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/or Bond Trustee in
4134-7659-4982.5
connection with the consummation of the Conveyance, regardless of whether such costs and
expenses are customarily borne by the seller or purchaser in any such transaction, including but
not limted to taxes, recording fees and other impositions, Owner's and Bond Trustee's legal and
other professional fees, fees for verification agents,bidding agents, escrow agents,custiodians or
trustees, assumption fees, prepayment fees, the cost of the appraisal, brokers' fees and expenses,
surveys, inspections, title commitments,title insurance premiums and other title-related fees, and
all amounts required for indemnification of Owner, Bond Trustee and Project Administrator.
Section 3. Effectiveness; Term and Termination. The Sale Right shall become
effective on the Sale Right Exercise Date and may be exercised during the Sale Right Term.Owner
agrees that it will not enter into any agreement to sell all or any part of the Property during the Sale
Right Term other than as may be required by the Indenture (e.g., in the event of default),without
the specific written request of the Host and delivery of an Opinion of Bond Counsel to Bond
Trustee 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.
Section 4. Manner of Exercise.
(a) Host's Notice. To exercise the Sale Right, Host shall provide a notice (an
"Exercise Notice")to Owner(with a copy to the Project Administrator)at any time during the Sale
Right Term.
(b) Owner's Best Efforts to Sell. Unless Host notifies Owner in writing that it is
withdrawing its Exercise Notice within fifteen(15)business days of delivering the Exercise Notice
under Section 4(a)hereof,Owner shall exercise its best efforts in selling and conveying good and
marketable title to the Property within ninety(90) days following receipt of the Exercise Notice,
or as soon as possible thereafter, but only if it can sell at or above the Minimum Sale Price. The
obligation of Owner to sell and convey the Property shall be on a best efforts basis. Owner shall
endeavor to sell the Property at a commercially reasonable price, subject to subsection(c) of this
Section,by such means as it shall determine to be suitable for such purpose;provided that Owner's
determination of the manner of sale and Sale Price 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. Subject to subsection(c),nothing herein shall require or prevent Owner selling the Property
subject to the restrictions set forth in the Regulatory Agreement or similar types of restrictions
established by Owner with the approval of Host. Owner shall direct the Bond Trustee in the
foregoing as and to the extent necessary or appropriate.
(c) Sale Price. The Sale Price shall be at least equal to the sum of the amounts set
forth below (net of any adjustments or prorations of the type described in Section 8(b)) (the
"Minimum Sale Price"):
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 encumbrance on the Property;plus
4134-7659-4982.5
iii. any amounts due to Owner (including Owner 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 relating to any Project Debt (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. Any funds held by or for Owner under the Indenture applied to the
retirement of Project Debt.Owner may retain such portion of moneys in the
Extraordinary Expense or similar fund under the Indenture it deems
reasonable or a reserve against future expected costs and expenses of the
type described in subparagraph(iii). Owner's determination of this amount
shall be final and incontestable.
Section 5. Mandatory Conveyance. Upon the retirement of all Project Debt, Owner
shall use its best efforts to effect a Conveyance within ninety (90) days thereafter, subject to
Section 4(c)hereof. Nothing herein shall require or prevent Owner selling the Property subject to
the restrictions set forth in the Regulatory Agreement or similar types of restrictions established
by Owner with the approval of Host.
Section 6. Surplus Cash; Surplus Conveyance Proceeds. Upon a Conveyance of the
Property, Owner shall apply the proceeds of such Conveyance (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 Section 4(c)(ii)—(iv). Any proceeds remaining following
the foregoing payments(such remaining amounts hereinafter referred to as "Surplus Conveyance
Proceeds") shall be transferred to Host and Host shall share such Surplus Conveyance Proceeds
with other taxing agencies selected by Host, and in the amounts determined by Host in its sole
discretion and responsibility.
Section 7. Terms of Conveyance.
(a) The Conveyance shall be in the nature of a grant deed to Purchaser in which
Owner shall deliver one or more deeds, bills of sale, or other instruments of transfer without
recourse or warranty of any kind or nature.
(b) The Property will be conveyed to Purchaser in AS IS CONDITION,WITH ALL
FAULTS, and without representations or warranties of any kind or nature as to the condition of
the Property.
(c) There shall be no partial transfer and that, upon consummation of the
Conveyance, Owner shall be fully divested of any and all right, title or interest in and to the
Property.
Section 8. Closing.
4134-7659-4982.5
(a) The closing of the Conveyance ("Closing") shall take place, in the case of a
Conveyance pursuant to Section 4 hereof,not later than the ninetieth(90th)calendar day following
Owner's receipt of the Exercise Notice, or as soon as possible thereafter, and in the case of a
mandatory conveyance pursuant to Section 5 hereof, not later than the ninetieth (90th) calendar
day following the retirement of all Project Debt,or as soon as possible thereafter.
(b) Prorations.All general and special real property taxes and assessments, and rents
shall be prorated as of the Closing, with Purchaser 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.
Section 9. Recording. This Agreement, and any amendment thereto, shall be recorded
with the recorder's office of the County; provided, that upon termination of the term of this
Agreement, Host shall cooperate with Owner to remove any such recorded Agreement or
amendment thereto from title to the Property upon Owner's reasonable request therefor and,in any
event,by no later than thirty(30)days after the expiration of the original term of this Agreement.
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 and lawful attorney (and agent-in-fact) to execute
in Host's name any such termination.
Section 10. Subordination. This Agreement shall be subordinate to any claim, pledge or
interest in the Property securing the Bonds or any Project Debt.
Section 11. Maintenance of Membership. In order to preserve the Property's exemption
from property tax, Host agrees to remain a member of Owner joint powers authority so long as
any Bonds remain outstanding.
Section 12. Assignment. Neither party to this Agreement shall assign its interests,
obligations, rights and/or responsibilities under this Agreement without the prior written consent
of the other party.
Section 13. Limitation on Liability.
(a) 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
conceivable theory, under or by reason of or in connection with this Agreement or any sale or
Conveyance or failure or price thereof or application of proceeds thereof,except only as to moneys
available therefor under and in accordance with the Indenture or this Agreement.
(b) No Owner 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 sale or
Conveyance or failure or price thereof, or Host's exercise or waiver of same, or otherwise except
in the case of such Owner Indemnified Person's own willful misconduct.
4134-7659-4982.5
Section 14. Notices, Governing Law, Binding Effect and Other Miscellaneous
Provisions.
(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: CSCDA Community Improvement Authority
1100 K Street, Suite 101
Sacramento,California 95814
Attention: Chair
With a copy to: [Project Administrator]
[Project Administrator Address]
Attention: [Project Administrator Contact]
If to Host: [City]
[City Address]
Attention: [City Contact]
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.
(c) Non-liability of Host or Owner Officers and Employees. No officer or
employee of the Host shall be personally liable to the Owner, or any successor in interest, in the
event of any default or breach by Host of any obligation of the terms of this Agreement. No officer
or employee of the Owner shall be personally liable to Host, or any successor in interest, in the
event of any default or breach by Owner of any obligation of the terms of this Agreement.
(d) Pronouns. Where appropriate to the context, words of one gender include
all genders, and the singular includes the plural and vice versa.
(e) Amendments. This Agreement may not be modified except in a written
instrument signed by Host and Owner.
4134-7659-4982.5
(f) Complete Agreement; Benefits. This Agreement together with all
schedules and exhibits attached hereto and made part thereof supersedes all previous agreements,
understandings and representations made by or between the parties hereto. This Agreement shall
inure solely and exclusively to the benefit of the Owner and Host, and no other party shall have
any right,remedy or claim under or by reason of this Agreement.
(g) Governing Law. This Agreement shall be governed by and construed in
accordance 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 filed and maintained in the Superior Court of California,
County of Sacramento,California. By executing and delivering this Agreement, each party hereto
irrevocably: (i)accepts generally and unconditionally the exclusive jurisdiction and venue of such
court; (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
requirements applicable to actions or claims against or involving governmental units and/or
political subdivisions of the State of California that may exist at the time of and in connection with
such matter.
(h) 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.
(i) Term. This Agreement shall terminate upon the Conveyance.
(j) 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.
(k) Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to be an original; and
all such counterparts shall together constitute but one and the same Agreement.
[SIGNATURE PAGE TO FOLLOW]
4134-7659-4982.5
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth
above.
CSCDA COMMUNITY IMPROVEMENT
AUTHORITY
By:
Authorized Signatory
[CITY]
By:
[Name]
[Title]
Signature Page to Public Benefit Agreement
4134-7659-4982.5
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)
4134-7659-4982.5
EXHIBIT A
LEGAL DESCRIPTION OF REAL PROPERTY
The Land referred to herein is situated in the State of California, County of[County], [City], and
described as follows:
4134-7659-4982.5