HomeMy WebLinkAboutCC Resolution 7945 (Crest Marin II)JiiFITUJ I.Pth 64 1JG848
RESOLUTION NO. 7945
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL
PROVIDING PRELIMINARY APPROVAL OF THE ISSUANCE OF BONDS FOR
THE PURPOSE OF PROVIDING MULTIFAMILY RENTAL HOUSING, AND
AUTHORIZING EXECUTION AND DELIVERY OF A DEPOSIT AND ESCROW
AGREEMENT AND APPLICATION FOR PRIVATE ACTIVITY BOND
ALLOCATION IN CONNECTION THEREWITH
CREST MARIN II
WHEREAS, the City of San Rafael (the "City") is authorized pursuant to Section
52075 et seq. of the Health and Safety Code of the State of California (the "Act") to issue
and sell its bonds for the purpose of providing financing for the acquisition and
construction of multifamily rental housing located in the City; and
WHEREAS, Northbay Properties II, L.P., a California limited partnership (the
"Company") has requested that the City or the Housing Authority of the County of Marin
(the "Authority") issue and sell bonds for the purpose of providing financing for the
acquisition of land and construction thereon of an approximately 220 -unit multifamily
rental housing development to be located in the City on an approximately 8.5 acre site
consisting of Marin County Assessor's parcel numbers 155-251-20, -21, -24 and -25
(the "Project"), and the City wishes to induce the Developer (as defined below) to acquire
and construct the Project and, in particular, to do so at such location; and
WHEREAS, the City intends to cooperate with the Authority in the issuance of
bonds to finance the Project and that the Authority ultimately be the issuer of the bonds,
but the City desires to preliminarily approve the issuance of bonds for the Project at this
time in order to assist the Company in applying to the California Debt Limit Allocation
Debt Committee (the "CDLAC") and the Mortgage Bond and Tax Credit Allocation
Committee of the State of California (the "MBTCAC") to obtain a portion of the State's
private activity bond volume limit for the Project; and
WHEREAS, it is in the public interest, for public benefit and in furtherance of the
public purposes of the City that the City Council provide preliminary approval of the
issuance of bonds for the aforesaid purposes;
NOW, THEREFORE, BE IT RESOLVED:
1. That the City Council hereby preliminarily approves the issuance and sale of
bonds of the City of San Rafael pursuant to the Act in a principal amount of not to
exceed $22,500,000 for the purpose of providing financing to the Company or an entity
affiliated therewith or a successor in interest thereto (the "Developer") for the acquisition,
construction and development of the Project. The City hereby intends that the Authority
ultimately be the issuer of the bonds for the Project, and intends to cooperate with the
Authority to that end.
2. That the City Council hereby determines and orders that the Mayor, the City
Manager and such other persons as necessary shall take all action necessary or advisable
in connection with the issuance and sale of the bonds and the execution of the financing
agreements for the Project, including making the required application to CDLAC and/or
MBTCAC for an allocation of a portion of the private activity bond limit of the State of
California. The City Council hereby specifically authorizes and directs the City Manager
to execute and deliver, for and in the name of the City, a Deposit and Escrow Agreement
with the Company in the form on file with the City Clerk, or with such changes as the
City Manager, upon consultation with Bond Counsel for the financing, shall determine
are necessary or appropriate, and to execute and deliver all forms required by CDLAC or
MBTCAC to obtain a portion of said bond limit for the Project.
3. That the bonds shall be special obligations of the issuer thereof payable solely
from the trust estate to be defined in the indenture authorizing the bonds, and shall not
in any event constitute an indebtedness of the City or a loan of credit thereof within the
meaning of any constitutional or statutory provisions.
4. That the issuance and sale of the bonds shall be upon such terms and
conditions as may be mutually agreed upon by the issuer of the bonds (being either the
City or the Authority), the Company and the purchasers of the bonds and shall be subject
to completion of proceedings for issuance, sale and delivery of the bonds by the issuer of
the bonds.
5. That the proceeds of the bonds shall include such related and necessary
issuance costs, administrative expenses, debt service reserves and interest payments as
may be required to accomplish the financing successfully.
6. That the City Council hereby finds that the issuance of the bonds as described
herein is a substantial inducement to the Developer to acquire, construct and develop the
Project within the City and that the Project will further the public purposes of the City.
7. That all actions heretofore taken by the officers and agents of the City with
respect to obtaining an allocation from the State for the issuance of the bonds are hereby
approved, confirmed and ratified, and the Mayor, City Manager and any and all other
officers of the City are hereby authorized and directed, for and in the name and on behalf
of the City, to do any and all things and take any and all actions and the execution and
delivery of any and all certificates, requisitions, agreements which they, or any of them,
may deem necessary or advisable in order to consummate the lawful issuance and
delivery of the bonds.
8. That this resolution shall take effect from and after its adoption.
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I, JEANNE M. LEONCINI , Clerk of the City of San Rafael, hereby certify that
the foregoing resolution was duly and regularly introduced and adopted at a regular
meeting of the Council of said City on Monday , the 17t1aay of April , 1989,
by the following vote, to wit:
AYES: COUNCILMEMBERS: Boro, Breiner, Frugoli, Thayer & Mayor Mulry&
NOES: COUNCILAJEMBERS: None
ABSENT: COUNCILMEMBERS: None
City Crk,
City of San Rafael
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DEPOSIT AND ESCROW AGREEMENT
This Deposit and Escrow Agreement (the "Agreement"), by and between the City
of San Rafael (the "Public Agency"), and the entity listed as the developer in Schedule A
attached hereto and by this reference incorporated herein (the "Developer"),
WITNESSETH
WHEREAS, the Developer has requested that the Public Agency obtain an
allocation from the State of California to issue multifamily housing revenue bonds (the
'Bonds'), the interest on which would be excluded from gross income for federal income
tax purposes to assist in the financing of the project described in Schedule A (the
"Project"); and
WHEREAS, the Bonds are characterized as "Private Activity Bonds" under
applicable sections of and are subject to the volume limitations contained in Section 146
of the Internal Revenue Code of 1986, as amended (the "Tax Code"); and
WHEREAS, pursuant to Section 8869.80, et seq., of the California Government
Code (the "Code"), the California Debt Limit Allocation Committee ("CDLAC") has been
allocated the entire amount specified by Section 146(d) of the Tax Code for the State of
California (the "Volume Limit") for 1989; and
WHEREAS, CDL_kC, acting in concert with the Nfortgage Bond and Tax Credit
Allocation Committee of the State of California ('11IBTCAC") has established procedures
to be followed by local agencies in California to obtain a portion of the Volume Limit for
specific financings; and
WHEREAS, such procedures require that, in order to obtain a portion of the
Volume Limit for the financing for the benefit of the Developer described in Schedule A,
in addition to other requirements, the city manager or county administrative officer, as
applicable, must collect from the Developer and hold on deposit in an escrow account
specifically established for such purpose an amount equal to 1% of the principal amount
of Bonds expected to be issued; and
WHEREAS, the Public Agency and the Developer desire to set forth the terms and
conditions under which said amount will be deposited and held in escrow.
NOW, THEREFORE in consideration of the premises and for other consideration
the receipt and sufficiency of which is hereby acknowledged, the parties hereto do hereby
agree as follows:
Section 1. Deposit and Escrow Account; Initial Application Fee. By its
execution of this Agreement, the Public Agency acknowledges receipt of the deposit from
the Developer, in the form of cash, in an amount equal to 1% of the principal amount of
Bonds shown in Schedule A (the "Deposit'), along with a cashier's check in the amount of
$300 made out to CDLAC (the 'Initial Application Fee"). The Deposit shall be held and
drawn upon by the Public Agency solely in accordance with this Agreement, the Code,
the procedures of CDLAC and MBTCAC and the laws of the State of California. The
Initial Application Fee shall be forwarded to CDLAC along with the application of the
Public Agency to CDLAC for a portion of the Volume Limit for the Project, and shall be
nonrefundable in any event.
Section 2. Disposition of the Deposit. The Deposit shall be disposed of as
follows:
(A) If the Project fails to receive any portion of the Volume Limit by
October 1, 1989, the Public Agency shall, promptly upon receiving confirmation
thereof and written permission to release the Deposit from CDLAC, return the
Deposit to the Developer.
(B) If the Project receives a portion of the Volume Limit by October 1, 1989
in an amount less than the principal amount of Bonds requested, a pro rata
portion of the Deposit promptly may be, upon receipt of written notification thereof
from CDLAC and written permission to release the Deposit, (i) reduced by the
Developer and the balance of the Deposit shall be retained by the Public Agency,
subject to paragraph 2(C) below, or (ii) at the Developer's election, it may petition
CDLAC for written permission for the Public Agency to return the Deposit in full
to the Developer. If such permission is granted by CDLAC, the Public Agency shall
withdraw its application to CDLAC. If the Project receives a portion of the
Volume Limit in an amount equal to the principal amount of Bonds requested, the
entire Deposit shall be retained by the Public Agency, subject to paragraph 2(C)
below.
(C) Any portion of the Deposit retained by the Public Agency pursuant to
paragraph 2(B) shall be disposed of as follows:
(i) If the Bonds are issued by the Public Agency, the deposit may
be reduced by the Developer upon written permission of CDLAC in an
amount equal to the product of (1) the amount of the Deposit, times (2) the
ratio between the amount of Bonds issued divided by the amount of Volume
Limit received. The balance of the Deposit shall be drawn upon in full by
the Public Agency and the proceeds of such draw shall be disposed of in
accordance with the rules promulgated by CDLAC as they pertain to
proceeds of the Deposit.
(ii) If no Bonds are issued prior to the expiration of the Volume
Limit allocation, the Deposit shall be drawn upon in full by the Public
Agency and the proceeds of such draw shall be disposed of in accordance
with the rules promulgated by CDLAC as they pertain to proceeds of the
Deposit.
(iii) Notwithstanding the above, all or a portion of the Deposit
which otherwise would be drawn upon by the Public Agency under
subparagraph (i) or (ii) above may be released if the Public Agency receives
written notification or confirmation from CDLAC that such release may be
made without liability on the part of the Public Agency.
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Section 3. Volume Limit. The Developer understands that if the Project
receives a portion of the Volume Limit, such allocation will be subject to the Code and
any rules promulgated by MBTCAC and/or CDLAC pertaining to the allocation of the
Volume Limit. The Developer further understands that any Volume Limit allocated to
the Project by CDLAC will expire on a certain date, and if Bonds have not been issued by
such expiration date the Deposit will be drawn upon by the Public Agency as provided in
paragraphs 2(B) and (C) above.
Section 4. Issuance of Bonds. The Developer understands that neither the
execution of this Agreement nor the acceptance of the Deposit by the Public Agency and
application to CDLAC for an allocation of the Volume Limit for the Project by the Public
Agency, in any way obligates the Public Agency to issue the Bonds, said issuance being
expressly contingent upon the negotiation and approval by the Public Agency of
documentation for the financing acceptable to it in its sole discretion, The Public Agency
intends to cooperate with the Developer in issuing the Bonds, but is in no way obligated
to effect said issuance on terms other than as are fully acceptable to the Public Agency.
Section 5. Public Agency Not Liable. Notwithstanding any breach of the terms
of this Agreement by the Public Agency or the occurrence of any other event, in no event
shall the Public Agency be liable to the Developer hereunder for any amount in excess of
that portion of the Deposit to be released to or reduced by the Developer under the terms
of Section 2 hereof.
Section 6. No Estoppel. This Agreement shall not create any estoppel of the
Developer with respect to any claim or right which the Developer may have against
CDLAC or MBTCAC with respect to any release or reduction of the Deposit.
Section 7. Assignment. The Developer shall have no right to assign this
Agreement or the benefits hereof to any other entity. Subject to the provisions of the
Code and any regulations of CDLAC or-NIBTCAC, the Public Agency may assign this
Agreement to another public agency qualified to issue the Bonds.
It is hereby acknowledged that it is expected that the Housing Authority of the
County of Marin (the "Authority") will be the issuer of the Bonds, and that the City has
assigned any allocation of the Volume Limit received in connection with the Project to the
Authority.
Section 8. Counterparts. This Agreement may be signed in counterparts with
the same effect as if the signatures thereto were upon the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth alongside of their signatures below.
CITY OF SAN hAFAEL
(the "Public Agency")
Date of Execution and Receipt of the By:
Deposit by the Public Agency: City A&nager
April 17 ,1989 ATTEST:
By:
J ne M. Leon ini, City Clerk
NORTHBAY PROPERTIES II, L.P.
(the "Developer")
Date of Execution by the Developer: By: Ow Kep�� (9ft jA
(2_ a ?-i , 1989 (DA o,.,,► ,amu 1 t.�, ; � a' ray a e � p , �, • � ��'Pat*d�
gy : K 1 •^'ab" QL �, miPT—
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y: " . AG
Its: v
Developer (insert exact legal name of the Northbay Properties II, L.P., a California
developer): limited partnership
Project (insert project description including name: Crest Marin II;
name and location, number of units):
approximately 8.5 acres located east of
Highway 101, north of Smith Ranch Road,
at the end of Cresta Drive (AP#'s 155-251-
20, 21, 24 and 25)
# of units: 220
Principal Amount of Bonds Requested: $22,500,000
J6844
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