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HomeMy WebLinkAboutAGMT - CivicStone Inc/Seal Beach Shores Amendment 1 - Oversight Agent and Program Administrator AMENDMENT NO. 1 (to Administration and Oversight Agreement) This Amendment No. l (this "Amendment"), dated as of May 1, 2017 (the "Effective Date"), is entered into by and among the Successor Agency to the Seal Beach Redevelopment Agency (the "Successor Agency"), as successor to the former Seal Beach Redevelopment Agency (the ''Former Agency"), the City of Seal Beach, a municipal corporation duly existing under the laws of the State of California (the "City"), Seal Beach Shores, Inc., a California nonprofit public benefit corporation ("SBS" or "Borrower"), as the successor-in-interest to LINC Community Development Corporation. a California nonprofit public benefit corporation ("LINC") and CivicStone, Inc.. a California Corporation ("CivicStone"). as successor Oversight Agent and Program Administrator. This Amendment amends and supplements the Administration and Oversight Agreement. dated as of December 1. 2000 (the "Original Agreement"), by and among the Former Agency, [INC and Rosenow Spevacek Group Inc. (`'RSG"). as former Oversight Agent and Program Administrator. Capitalized terms used but not otherwise defined herein have the meanings ascribed to them in the Original Agreement. RECITALS A. The Former Agency was a redevelopment agency duly formed pursuant to the Community Redevelopment Law, set forth in Part I of Division 24 of the California Health and Safety Code ("HSC"). B. Pursuant to AB XI 26 (enacted in June 2011) and the California Supreme Court's decision in Cali{ornia Redevelopment Association. et al. v. Ana iVlatosantos. et al., 53 Cal. 4t/r 231 (2011), the Former Agencywas dissolved as of February I 2012. the Successor Agency was constituted as the successor entity to the Former Agency. and an Oversight Board of the Successor Agency (the "Oversight Board") was established. C. AB XI 26 added Part 1.8 (commencing with Section 34161) and Part 1.85 (commencing with Section 34170) to Division 24 of the HSC. Such Parts 1.8 and 1.83, including amendments and supplements enacted after AB XI 26, are referred to herein as the "Dissolution Act." D. Before the Former Agency's dissolution. the Former Agency entered into the Original Agreement in connection with the issuance of the Former Agency's Mobile Home Park Revenue Bonds (Seal Beach Mobile Home Park Project) Series 2000A (the "Bonds") and the related execution and delivery of the Indenture of Trust, dated as of December I, 2000 (the "Indenture"), by an between the Former Agency and Union Bank of California. N.A., as trustee. E. A portion of the Bonds remains outstanding; and the Bonds, the Indenture and the Original Agreement (as amended by this Amendment) continue to be enforceable obligations of the Successor Agency. F. RSG resigned from its positions us the Oversight Agent and the Program Administrator. -I- I {I5-005,i)i 55 OV7.di?e G. The Parties are executing this Amendment to provide for CivicStone's assumption of the roles of Oversight Agent and Program Administrator. Ii. Pursuant to•the Indenture as set forth in the definition of"Oversight Agent' in Section 1.1 thereof), so long as the Bonds remain outstanding, the appointment of any successor Oversight Agent is subject to the consent of ACA, which consent is attached hereto as Exhibit A. 1. TheOversight Board adopted Resolution No. 16-03, on November 17, 2016 (the "Oversight Board Resolution"), approving the Successor Agency's execution and delivery of this Amendment; and the Oversight Board Resolution became effective upon the State Department of Finance's approval by letter dated January 6. 2017, pursuant to the Dissolution Act. THE PARTIES, FOR AND IN CONSIDERATION OF THE MUTUAL PROMISES AND AGREEMENTS HEREIN CONTAINED DO AGREE AS FOLLOWS: 1. Administration Agreement to Remain in Effect Except as Amended Hereby. Except as expressly modified by this Amendment, the Original Agreement shall remain unmodified and in full force and effect in accordance with its terms. The Original Agreement. as amended by this Amendment. shall be hereinafter referred to as the "Administration Agreement." 2. Appointment and Acceptance by CivicStone of its Duties as Program Administrator and Oversight Agent. (a) The Successor Agency and SBS, as the Borrower, hereby confirm and agree to the appointment of CivicStone as the successor Program Administrator and Oversight Agent. (b) CivicStone hereby accepts such appointment. and agrees to perform the duties of the Program Administrator and Oversight Agent as set forth in the Original Agreement, and accepts the terms of the Original Agreement (except, it is clarified that: (i) Section 5.4 shall be amended as provided below and (ii) Section 2.3 of the Original Agreement contains representations by RSG and not CivicStone, and CivicStone's representation is set forth below in this Amendment). (c) It is hereby clarified and affirmed by the Parties that the annual Administration Fee at October 2016 is 58.3 192 1, calculated in accordance with the definition of "Administration Pee" set forth in the Indenture, and further described in Exhibit B hereto. CivicStone shall submit invoices for its work• the Administration Ag reement to the Trustee in amounts not exceeding the Administration Fee (as adjusted pursuant to such definition). except as may be accepted in writing by the Executive Director of the Successor Agency and an authorized representative of the Borrower (with a copy of such acceptance furnished to the Trustee). 3. Representations of CivicStone. CivicStone makes the following representations, warranties and acknowledgments: I2D'u5-u0p05',19 9566,.7.doe • (a) It is a corporation duly organized, validly existing and in good standing under the laws of the State of California and has the power and authority to carry on its business as now being conducted. (b) It has the power to execute and deliver this Amendment and to carry out the transactions on its part contemplated in the Administration Agreement; and it has duly authorized the execution and delivery of this Amendment and its performance under the Administration Agreement. (c) It is independent from and not under the control of the Borrower, does not have any substantial interest, direct or indirect, in the Borrower, and is not an officer or employee of the Borrower. (d) CivicStone is entering into the Administration Agreement as an independent contractor to the Successor Agency. Neither CivicStone nor any of its staff are the employees of the Successor Agency. The Successor Agency has no control over the conduct of CivicStone, is its capacity as the Program Administrator and Oversight Agent. except in accordance with the provisions of the Administration Agreement, the Indenture, the Loan Agreement. the Regulatory Agreement. the Agency Grant Agreement (as amended and restated in August 2005), and the Agency Regulatory Agreement pertaining to the duties of the Program Administrator and Oversight Agent. (e) It has received copies each of the Administration Agreement; the Indentre. the Loan Agreement. the Regulatory Agreement. the Agency Grant Agreement (as amended and restated in August 2005), and the Agency Regulatory Agreement (as amended in August 2005) and it is familiar with the terms and conditions thereofand is qualified to perform its duties as the Program Administrator and Oversight Agent pursuant to the terms thereof. (f) It has received from the Borrower copies of the Articles of Incorporation. Bylaws and Declaration of Conditions. Covenants and Restrictions, which the Borrower has represented are current operating documents of SBS as of the date of this Amendment. 4. Amendment to Section 5.4 of the Original Agreement. The last sentence of Section 5.4 of the Original Agreement is hereby replaced in its entirety with the following: The Notice Address of the Program Administrator and Oversight Agent is: 4195 Chino Hills Parkway`267, Chino Hills, CA 91709: Attention: Monique Eliason. 5. Certain Clarifications Regarding.Annual Certifications and Files. (a) With respect to the income certification and the annual report required to be filed by the Borrower under the Regulatory Agreement, the filing of such certification and reports to the Program Administrator and Oversight Agent shall be deemed to be a transmission to the Successor Agency at the same time. and the Borrower shall not be required to make a duplicate transmission to the Successor Agency. (b) The transmission to the Program Administrator and Oversight Agent of ale information regarding any Residential Household at the Successor Agency's request shall be -3- I25115-0tIp?'.I 895 fifi∎9.dOe deemed to be a transmission to the Successor Agency at the same time, and the Borrower shall not be required to make a duplicate transmission to the Successor Agency. (c) To the extent that the Program Administrator and the Oversight Agent prepares and submit to the Successor Agency quarterly or annual continuing program compliance summary reports required by the Regulatory Agreement or the Agency Regulatory Agreement, the Borrower shall be furnished with a copy of each such report. (d) The Program Administrator and Oversight Agent shall retain all files, books and records received by it in connection with its performance as the Program Administrator and Oversight Agent in good order and shall make such files, books and records available to the Successor Agency for inspection at any time during business hours upon the Successor Agency's request. (e) Upon the Borrower's request. the Program Administrator and Oversight Agent shall furnish to the Borrower copies of any certification or filings previously transmitted by the Borrower; provided. that the Borrower shall reimburse the Program Administrator and Oversight Agent for costs relating to such copies. (t) Upon the Successor Agency's or Program Administrator and Oversight Agent's request. the Borrower shall furnish to the requesting party duplicate copies of any certification or filings, including without limitation. Household files previously transmitted by the Borrower, provided. that the requesting party shall reimburse the Borrower for costs relating to such copies. 6. Execution in C'ounteenarts. This Amendment may be executed in counterparts. and all such executed counterparts shall constitute the'same instrument. It shall be necessary to account for only one set of such counterparts in proving this Amendment. -=4- 2SO<uuu5,I9N95((v 7,dt,c ,! , . 1 . i TN WITNESS THEREOF, the Parties have caused this Ar -1(1mm to be executed by their dilly authorized representatives as of the Effective Date indicatd1 above. SUCCESSOR AGENCY10 THE SEAL ' BEACH AGENCY (24 1 v4Aftest: i. , „tea) . By lit 1 f V i 111 , CPR. Ingram, Exctiti irector Se.crCtury CITY'OF SEAL REACH H Anest: ' Wi,A1- B.";.,N-,. 4,-,,,(,,,„e„. -44,,,,.„,.//,,,.., , / / 1144-1/. ,,:y..:, ..,;; ;v0RATI."\-:-:*,.,\z,,,., N',ict,'' nv:_/ • / : 7 Plgt7 _ ;;; ;;;' 'c'r.■ andr3 Massa-1;Hr% Mayor CiTy Clerk -----w—lig---1.--fr: SEAL BEACH SHORES,INC., . c-e-7,, ilet,,,. .■,:,- .,,-•,. r ::: Catif2p-Wa npnpront public b-neth ‘44-fark v corporation • -11terilr‘tif WilliLds. Prcsideilo of-Board of Directors 7' • 4-. 7,-/ 7 ../ - i : :-:.../ ..,, .,...:---/ k.dela Rose. \ 0 I Bili:r:! al Dircc .-)rs (:i I:CSTa NE, INC \ Adam B. Eliason.. hesident T .t--. R A _ 1 o 6 4• L-- 4 ----- — Moniqueticsou, Corporate Secretary . ‘) -5.- EXHIBIT A Consent of ACA to Appointment of Successor Oversight Agent I_SU 5-(F(N?'I989S69 c7.Jut ACA Financial Guaranty Corporation 600 Fifth Avenue,2111 Floor New Vork, NY 10020 1AC 212 375 2000 Tel 212 375 2100 Fax www.aca.cool April 27. 2017 Successor Agency to the Redevelopment Agency of The City of Seal Beach 2111 Eighth Street Seal Beach. CA 90740 Ladies and Gentlemen: Reference is made to that certain Bond Insurance Policy. No. N1200-40. with an Effective Date of December 21. 2000. pursuant to which ACA Financial Guaranty Corporation ("ACA") insures that portion which shall be Due for Payment but shall be unpaid by reason of Nonpayment of the principal of and interest 'on the Mobilehome Park Revenue Bonds (Seal Beach Mobile Home Park Project) Series 2000.A in the original principal amount ofS6.750,000 (the "Bonds") that the Redevelopment Agency of the City of Seal Beach (the "Agency ) issued pursuant to. among other things. that certain Indenture of Trust, dared as of December I. 2000. by and between the Agency and Union Bank of California. as trustee (the "Trustee`). Capitalized. undefined terms used herein shall have the meanings ascribed to them in the Indenture. By letter. dated.October 17. 2016 (the "Request"). the Successor Agency to the Redevelopment Agency of the City of Seal Beach (the -Successor A_gency1.1 by and through its counsel. (x) advised ACA that Rosenow Spevacck Group. Inc. has notified the Successor Agency of its intention to resign as the Oversight Agent and the Program Administrator: and (y) pursuant to Section 1.1 of the Indenture. requested ACA to consent to the Successor Agency's appointment of CivicStone, Inc. as the replacement Oversight Agent and the Program Administrator. Section 1.1 of the Indenture provides in part that "Oversight Agent" shall mean Rosenow Spevacek Group. Inc. and any successor thereto appointed by the Issuer subject to the consent of ACA (such consent not to be unreasonably withheld). which entity shall also act as the initial Oversight Agent under the Administration Agreement. A copy of the Request is attached hereto as Exhibit A and incorporated herein by reference. Subject to the terms and conditions set forth herein. ACA hereby consents to the Successor Agency's appointment of CivicStone. Inc. as the replacement Oversight Agent and the Program Administrator solely Ihr a period of time beginning as of the date hereof and ending on the first anniversary of the date hereof: and thereafter. ACA niay extend. modify or withdraw its consent. I Pursuant to AB NI 26(enacted in June 201 11 and the California Supreme Courts decision in Co/i/n'riiu Rrclevelnpmrnr IV.rurintion, et al. r.:Dta dLhescuitas,•rt uL. 53 Cal. 4th.231 (20111.the Agency was dissolved as of February L 2012, the Successor Agency was constituted as the successor entity to the Agency. The Successor Agency to The Redevelopment April 27. 2017 Agency of the City of Seal Beach Page 2 This letter and the consent set forth herein (the "Consent') shall be effective as of the date hereof (the "Effective Date'') provided that on or before April 28, 2017, the Successor Agency shall deliver to ACA via electronic mail a copy of this Consent countersigned by an authorized signatory of the Successor Agency. If the Successor Agency fail to return this Consent within the rime.period specified above, the Consent shall immediately and automatically, without any further action required by ACA or any other party: have np force or effect. In deciding to grant the Consent. ACA has relied on. among other things. the statements. representations, information or other material provided by or on behalf of the.Successor Agency or any other party in support of the Request(together, the "Representations"). ACA is not making any representation regarding the truth. accuracy, completeness or validity of the Representations. Furthermore. ACA reserves any and all of its rights. remedies defenses and counter-claims pursuant to the Indenture and.any other document executed in connection with the issuance or administration of the Bonds (together with the Indenture. the '`l3ond Documents").or as otherwise available at law or equity (together. the "Rights and Remedies") including. without limitation.those Rights and Remedies that are available in the event ACA is made aware of additional facts or it is determined that the Representations are inaccurate. incomplete or misleading. Except as expressly set forth herein. the Bond Documents. and all of ACA's rights and remedies thereunder._remain unmodified and in full force and effect-, are hereby ratified and confirmed and the Successor Agency shall continue to comply with all of their obligations, covenants, representations and warranties thereunder strictly in accordance with the terms thereof. Except as expressly set forth herein. the Successor Agency acknowledges and agrees that, notwithstanding any communications. course of conduct. or reliance. ACA.is not, and shall not be deemed.to be. obligated or committed in any manner or to any extent to any agreement to extend. modify. amend. or waive any of the terms of this Consent or any of the Bond Documents. or to waive or forbear from enforcing any rights. powers, privileges. remedies or defenses under the Bond Documents or as otherwise available at law or equity. The Successor Agency further represents and warrants that the Bond Documents are in full force and effect, and have not been amended, modified. terminated, rescinded, or revoked in whole or in pint since the date of their initial adoption. other than as previously consented to by ACA. This Consent constitutes a valid and binding obligation of the Successor Agency and is enforceable against the Successor Agency in accordance with its terms. provisions. covenants and conditions. This Consent shall be applicable only to the matters stated herein. and this Consent shall be so limited and shall not be deemed to extend to any other matter nor impair or limit any right consequent thereon. ACA provides this Consent I4rr its own benefit and in its own interest. and the Successor Agency is solely responsible for obtaining such other consents, waivers, approvals or taking of such of other actions, if any. as maybe required in connection with the matters discussed herein. This Consent speaks only as of the date hereof and ACA has no Obligation to update this Consent should circumstances change thereafter. This Consent is intended lbruse in connection with the Request and shall not to be relied upon for any other purpose. The Successor Agency to The Redevelopment April 27. 2017 Agency of the City of Seal Beach Page 3 The Successor Agency hereby unconditionally and irrevocably releases. discharges and acquits ACA and its officers, directors. successors, assigns, parent. subsidiaries, employees, affiliates. representatives, servants and counsel (each. an"ACA Pate`) from and against any and all claims, demands. causes of action, suits. debts, sums of money. accounts. covenants, contracts, controversies. agreements. promises..variances, damages. expenses and liabilities. known or unknown, at law or in equity, and irrevocably waives and relinquishes any and all known rights of setoff counterclaims and defenses, contingent or absolute. liquidated or unliquidated or otherwise. arising from or related to any act or omission of any ACA Party that has occurred on or before the date hereof. irrespective of whether such claims arise out ofcontract, tort. violation of laws or regulations or otherwise, which the Successor Agency ever had or now has against any ACA Party for, upon or by reason of any matter. cause whatsoever from the beginning of the world to and including through the date hereof arising out or. in connection with. or related to this Consent or any notices. conversations. negotiations. disputes or litigation regardingdhis Consent. Notwithstanding the foregoing. nothing contained herein shall be construed to release any person with respect to any unlawful conduct or willful misconduct. The Successor Agency shall indemnify ACA and its officers. directors. successors, assigns. parent. subsidiaries, employees, affiliates, representatives. servants and counsel (each an "Indemnitee"), against. and hold each Iiidcmnitee harmless from, aihv and all losses: claims, damages. liabilities and expenses reasonably related thereto. including reasonable fees. charges and disbursements of one firni of outside counsel for`Indemiiitees, incurred by or asserted against any Indemnitee arising out of. in connection with. or as a result ofa(i) the preparation. execution_delivery and administration of this Consent or any other agreement or instrument contemplated hereby or (ii) any actual or prospective claim. litigation. investigation or proceeding relating.to any of the foregoing. whether based on contract, tort or any other theory, and regardless of whether any Indemnitce is a party thereto (and regardless of whether such matter is initiated by the,Successor .Agency or any other Person)..prbnided, however, that each Indenmitee remains liable far its own gross negligence or willful misconduct. This Consent shall be governed by. and construed.and interpreted in accordance with. the laws of the State of New York without regard to any conflicts of laws rules. The Successor Agency to The Redevelopment April 27. 2017 Agency of the City of Seal Beach Page 4 Please indicate your acceptance and agreement with the terms and conditions hereof by executing this Consent as provided below and returning the executed signature pages to my attention at the address set forth above. Very truly yours. ACA FINANCIAL GUARANTY CORPORATION 1 By: Name: Maria Cheng Title: Managing Director ACCEPTED AND AGREED TO BY: THE SUCCESSOR AGENCY to THE REDEVLOPEMENT AGENCY OF THE CITY OF SEAL BEACH BS: % ! . C. Alai m Nam'• 1 11 ' . "{!gym Title: tom, n , L, e : (Syr EXHIBIT B Administration Fee as of October 2016 The Indenture provides: "Administration Pee` means an amount equal to S500 per month such amount to be increased annually on December 15. commencing December 15, 2001, to reflect 90% of any increase in the Consumer Price Index All Urban Consumers for the California CMSA in which the Redevelopment Agency of the City of Seal Beach is located (base year 1982-1984 = 100), published by the United States Department of Labor, Bureau of Labor Statistics ("BLS"). If the base is changed, the CPI used shall be converted according to the conversion factor provided by the BUS. Annual CP1 -.411 Urban Administration Fee Consumers (L:�- ((90% x CP1 Increase Administration Fee Administration Base RirersidrOC CP1 by %a x Annual per Quarter Fee per Month Date/Adjustm Increase Administration Fee (Annual (Annual ent Date Area) (Base by % for Prior fear) + Administration Fee Administration Period 1982- 81=100)r Annual +4) Fee - 12) Administration Fee for Prior Year) 12/15/2000 171.600 -- 56.000.00 51500.00 5500.00 12/15/2001 177.300 3.32% 56.179.37 51544.84 5514.93 12/15/2002 182.200 2.76% 56,333.07 51,583.27 $527.76 12/15/2003 187.000 2.63% 56.48333 51.620.81 5540.27 12/15/2004 193.200 3.32% 56.676.69 51,669.17 5556.39 12/15/2005 201.800 4,45% 56 944.17 51,736 04 5578.68 12/15/2006 210.400 4.26% 57210.51 51,802.63 5600.88 12/15/2007 217.338 3.30% 57,424.50 $1,,856.13 5618.71 12/15/2008 225.008 3.53% 57,660.32 j 51.915.08 5638.36 —12/15/2009 223.219 -0.80% 57.660.321- 51.915.05 $638.36 12/15/2010 225.894 1200/u 57,742.94 51.935.73 5645.24 12/15/2011 331.928 7.67% 57.929.08 51.98217 $660.76 12115/2012 236.648 1 2.04% 58.074.31 52:018.58 5672.86 12/15/2013 239,207 1.08% SS.I52.89 52,038.22 J 5679.41 12/15/2014 242.434 1 1.35% 58.251.88 52.062.97 5687.66 12/15/2015 244.632 0.91% 58.319.21 52.079.80 $69327 Data per U.S. Department of Labor. Bureau of Labor Statistics. webs ite(Iiup:' /a'a_hiv.one/Coi-bin/.vurror'un:rL)CIr1.as of Aueust 23.2016_ t No chance from prior year because of decrease in CPI. 12805-000509895Gov7.doc Exhibit A SCOPE OF SERVICES & FEE SCHEDULE Summary Aside from its duties as Program Administrator and Oversight Agent for the Regulatory Agreement and Declaration of Restrictive Covenants, CivicStone will perform any and all other related work as requested by City Staff. Additionally, CivicStone will conduct a thorough analysis of the documents related to Program Administration & Oversight Agent including: the Regulatory Agreement and Declaration of Restrictive Covenants, the Amendment of Regulatory Agreement„ the Administration and Oversight Agreement, the Indenture of Trust, and the Amended and Restated Loan and Grant Agreement and create a comprehensive compliance matrix to ensure future regulatory compliance. All current areas of non-compliance will be identified with an action plan to bring them back into compliance, including but not limited to: File repair: CivicStone will compile documentation from Seal Beach Shores Mobile Home Park, J&H.Asset Property Mgmt., RSG, The Loftin Firm as well as contact individual residents to complete and maintain a set of master files. Where documents are missing or unavailable, current compliance documents will be included to verify eligibility. Additionally,CivicStone will maintain comprehensive files on all Qualified Spaces from the date of this City Contract forward. Update non-compliant leases & forms: CivicStone will work closely with Seal Beach Shores Mobile Home Park and appropriate legal counsel to fix lease Agreements and replace the existing Agreements with corrected ones; or have Addenda created to remove the Regulatory Agreement conflicts. "Ramp-Up" Funds: CivicStone will investigate the source of the funds as well as the purpose for the distribution to selected residents of Seal Beach Shores Mobile Home Park. Policies & Procedures Manual: CivicStone will create an extensive Policy & Procedures Manual that will identify the specific duties and responsibilities of each entity involved in this Regulatory Agreement; the milestones and deadlines;'adtion items; provide check lists and applicable forms and Exhibits. Seal Beach Mobile Home Park Revenue Bond Database: CivicStone will design and populate a custom database to monitor the.data and regulation compliance. CivicStone will process and historically record all Qualified Spaces and provide the needed reports to the City as well as all appropriate parties in the Regulatory Agreement. i 12550(Arend Am Saute 1024 CMflD,CA 91710 Phone:sotas5.0229 rax:9O9 41649 Page 2 of 3 , enhosaisicitontrom Fee Schedule An estimation of hours required to resolve the non-compliant areas has been factored into this Scope of Work for budgetary purposes. We anticipate this Scope of Work for the City of Seal Beach to rest under $20,000 for the first 12 month period. However, often non-compliant issues are easy to diagnose, but the depth and breadth of the underlying problems and needed actions to resolve those problems are unknown until work commences and uncovers the ease or complexity. Consequently, CivicStone's recommended actions in these areas will be billed on an hourly basis with frequent reviews by the City of Seal Beach. The billing rates are as follows: Adam Eliason CEO: $120 per hour Monique Eliason Project Coordinator: $95 per hour Administration Specialist: $50 per hour 12349 total Ave Ante 104 Chino,CA 9019 Phone:SO- 5-0229 Fax:9 0 9 4 9 5.0 6 4 4 p 3.5 3'_ vnmw.chicstoMh{CARS ' 1 a •'