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HomeMy WebLinkAboutC98-272 Lake Creek Affordable Housing CorporationCERTIFIED RECORD OF PROCEEDINGS OF THE BOARD OF COUNTY COMMISSIONERS OF EAGLE COUNTY, COLORADO APPROVING THE ISSUANCE OF MULTIFAMILY HOUSING PROJECT REVENUE REFUNDING BONDS, • BY THE LAKE CREEK AFFORDABLE HOUSING CORPORATION \\\DE - 70145/300 - 0042986.02 r0 LAKE CREEK AFFORDABLE HOUSING PROJECT AMENDED AND RESTATED PROJECT AGREEMENT THIS AMENDED AND RESTATED PROJECT AGREEMENT (the "Agreement") is made as of August 1, 1998, by and between LAKE CREEK AFFORDABLE HOUSING CORPORATION, a Colorado nonprofit corporation (the "Corporation") and EAGLE COUNTY, COLORADO (the "County"). This Agreement amends, restates and continues the Lake Creek Affordable Housing Project Agreement between the Corporation and the County dated as of July 1, 1993 (the "Prior Agreement"). RECITALS: A. The Corporation has been organized under the Colorado Nonprofit Corporations Act to acquire property in order to provide decent, safe and sanitary housing to individuals or families of low or moderate income, for the benefit and on behalf of the County and its inhabitants. B. The Corporation shall issue its Lake Creek Affordable Housing Corporation Multifamily Housing Project Revenue Refunding Bonds, Series 1998A and Series 1998B (the "Series 1998 Bonds") in an aggregate principal amount not to exceed $27,990,000 for the purpose of refunding through exchange and redemption of the Corporation's Multifamily Housing Project Revenue Bonds, Series 1993A, Series 1993B and Series 1993C (collectively, the "'Refunded Bonds"). The Refunded Bonds were issued for the purpose of acquiring and constructing real and personal property to be operated by the Corporation and known as the "Lake Creek Affordable Housing Project" (the "Project"), located on the property described in Exhibit A hereto, to provide dwelling accommodations at rentals within the means of individuals or families of low or moderate income, as determined by the Board of Directors of the Corporation from time to time. C. The Series 1998 Bonds shall be issued pursuant to the Trust Indenture dated as of July 1, 1993, as supplemented by a First Supplemental Trust Indenture dated as of August 1, 1998 (together, the "Indenture") between the Corporation and U.S. Bank Trust National Association, as Trustee (the "Trustee"). The Series 1998 Bonds and any Additional Bonds issued under the Indenture are referred to hereinafter as the "Bonds." D. The Prior Agreement was recorded in the office of the Eagle County Clerk and Recorder on July 29, 1993, at Reception Number 511168 in Book 615, Page 94. All capitalized terms used herein, unless otherwise defined, shall have the meanings ascribed thereto in the Indenture. \\\DE - 70162/300 - 0042986.03 TERMS For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the County and the Corporation, on behalf of themselves and their respective successors and assigns, agree as follows: Section 1. Project Operation. The Corporation hereby covenants and agrees to operate the Project at standards required to provide decent, safe, and sanitary housing facilities at reasonable rental rates, in a safe and economical manner, as provided in the Indenture. Nothing herein or in any resolutions of the County shall be interpreted to require the County to undertake responsibility for operation of the Project. The Corporation shall indemnify and hold harmless the County, its officers, agents and employees and members of its Board of County Commissioners with respect to any liability or damages arising under actions or claims against the County as a result of the operation of the Project by the Corporation. Section 2. County Benefit. The Corporation covenants and agrees that all activities of the Corporation shall be undertaken for the benefit of the County. Upon termination of this Agreement, the County shall be entitled to acquire title to the Project without cost, as provided in the Indenture. Section 3. Right to Acquire. As further provided in Section 14.02 of the Indenture, the County is hereby granted the right to obtain, at any time, fee title and exclusive possession of property (including the Project) financed by obligations of the Corporation (including the Bonds) free from liens and encumbrances created by the Corporation related to the Bonds (but subject to other Permitted Encumbrances, as defined in the Indenture), and any additions to such property, by (1) placing into escrow an amount that will be sufficient to defease such Bonds and other obligations, (2) paying reasonable costs incident to the defeasance, and (3) complying with all other requirements of Article XIV of the Indenture. The County, at any time before it defeases such obligations, shall not agree or otherwise be obligated to convey any interest in such property to any person (including the United States of America or its agencies or instrumentalities) for any period extending beyond or beginning after the County defeases such obligations. In addition, the County shall not agree or otherwise be obligated to convey a fee interest in such property to any person who was a user thereof (or a related person) before the defeasance within 90 days after the County defeases such obligations. Section 4. Unencumbered Title. If the County exercises its option under Section 3, the Corporation shall immediately cancel all encumbrances on such property, including all leases and management agreements (subject to certain Permitted Encumbrances as aforesaid). Any lease, management contract, or similar encumbrance on such property will be considered immediately cancelled if the lessee, management company, or other user vacates such property within a reasonable time, not to exceed 90 days, after the date the County exercises its rights under Section 3, as provided in Section 7 hereof. Section 5. Default Rights. Upon the occurrence of an "Event of Default" as defined in Section 10.01 of the Indenture, the Corporation shall cause the Trustee, within five 2 \ADE - 70162/300 - 0042985.03 days of such occurrence, to provide notice to the County, and the County shall have the option to cure such Event of Default within ten days after receipt of such notice, provided that Bonds may still be declared due and payable under Section 10.02 of the Indenture prior to the expiration of such ten-day period, but such declaration shall be immediately annulled in the event the County cures the Event of Default within such ten-day period. As provided in Section 10.02 of the Indenture, amounts advanced by the County as a result of the exercise of this option to cure monetary defaults hereunder and reasonable, direct expenses of the County advanced to cure nonmonetary defaults hereunder shall be deemed to be Indebtedness of the Corporation to the County. Such Indebtedness shall not be secured by the Deeds of Trust and, so long as the Series 1993A Bonds or any Additional Bonds secured on a parity therewith are outstanding, the County shall not sue for unpaid amounts on such Indebtedness without the written consent of the owners of at least 66 2/3% in principal amount of the Series 1993A Bonds or Additional Bonds secured on a parity therewith. In addition to the foregoing and consistent with Article XIV of the Indenture, if pursuant to Article X of the Indenture, the Trustee declares the principal of any Bonds then outstanding to be due and payable and any foreclosure proceeding or other action is commenced under the Indenture or the Deeds of Trust, as defined in the Indenture, which could lead to the sale or other disposition of the property pledged thereunder, the County is hereby granted an exclusive option to purchase all such property (including the Project), for the amount of the outstanding Bonds and other indebtedness of the Corporation and accrued interest to the date of default. The County shall have not less than 90 days from the date it is notified by the Trustee of such action in which to both exercise the option and purchase the property. The Trustee or any Bondholders responsible for commencing such foreclosure proceeding or other action shall be required to take any action necessary, including submission of requests for continuance of foreclosure to the Public Trustee of Eagle County, Colorado, in order to ensure that the County has the full 90 day period referred to herein to exercise its option (which option shall be exercised by giving written notice of such exercise to the Trustee and the Corporation) and purchase the Project and such other property. The Trustee or any Bondholders responsible for commencing such foreclosure proceeding or other action shall be required to take any action necessary, including submission of requests for continuance of foreclosure to the Public Trustee of Eagle County, Colorado, in order to ensure that the foreclosure sale does not occur prior to the expiration of the 90 day period referred to herein. Other than the foregoing requirement, the provisions of Section 14.02 of the Indenture are not intended and shall not be interpreted so as to limit the Bondholders' rights to pursue their remedies hereunder and under the Deeds of Trust. Nothing herein shall be construed to create any obligation of the County to cure any Event of Default. Section 6. Funds in Indenture. As required under Section 14.02 of the Indenture, in the event the County exercises its options under Section 3 or 5 hereof, the County shall receive a credit towards its defeasance or purchase costs in the amount of any fund or account balances held under the Indenture with the exception of (1) the Excess Investment Earnings Fund, as defined in the Indenture, (2) an amount representing Operation and Maintenance Expenses, as defined in the Indenture, required by the Corporation's current operating budget through the date of defeasance or purchase, and (3) any amount needed to pay 3 111DE - 70162/300 - 0042993.03 additional interest on the Bonds or expenses in connection with such defeasance under Section 14.01 of the Indenture. Section 7. Title. Unencumbered fee title (subject to certain Permitted Encumbrances as aforesaid) to the Project and any additions thereto and exclusive possession and use thereof will vest in the County without demand or further action on its part when all obligations issued under the Indenture (including the Bonds) are discharged. For purposes of this Section 7, such obligations will be discharged when (a) cash is available at the place of payment on the date that the obligations are due (whether at maturity or upon call for redemption) and (b) interest ceases to accrue on the obligations or (c) as otherwise provided in Article XIV of the Indenture. All leases, management contracts and similar encumbrances on the Project shall terminate upon discharge of said obligations. Encumbrances that do not significantly interfere with the enjoyment of such property, such as the Permitted Encumbrances, are not considered encumbrances for purposes of this Section. Section 8. Annual Fee. Pursuant to Section 4.08(e) of the Indenture, the Corporation shall pay to the County on December 1 of each year, an affordable housing development fee of $10,000. Copies of any studies, reports or feasibility analyses with respect to affordable housing in the County produced by the County from the proceeds of such fee shall, when completed, be forwarded by the County to the Corporation and to any Bondholder under the Indenture so requesting. Section 9. Indenture Rights; Approval of County. The Corporation hereby covenants and agrees that the provisions of the Indenture granting any rights to the County shall not be amended or modified without the consent of the County. By execution hereof, the County hereby consents to the provisions of the Indenture and confirms its approval of the issuance of the Series 1998 Bonds. Section 10. Term. This Agreement shall terminate upon the vesting of title to the Project in the County as herein provided. Section 11. Burden on Property. This Agreement is a burden upon and runs with the property described in Exhibit A hereto and is binding upon the Corporation and upon all persons or entities with any right, title or interest to such property or any part thereof. This Agreement may be released therefrom in the same manner as the release of property under the Deeds of Trust executed in connection with the issuance of the Bonds. Section 12. Construction. In the event of any conflict between the terms and provisions of this Agreement and the terms and provisions of the Indenture, the terms and provisions of the Indenture shall govern. 4 MADE - 70162/300 - 0042985.03 .-th, .-. IN WITNESS WHEREOF, the undersigned have hereunto set their hand as of the day and year first mentioned above. EAGLE COUNTY, COLORADO LAKE CREEK AFFORDABLE HOUSING CORPORATION B By: Chairman, Board ofCounty t7ommissioners Vice President [SEAL] ATTEST: CLJ County Clerk and Kecorder [SEAL] ATTEST: ,c Secretary \\ODE - 7016M W - 004298 5.01 i4MN EXHIBIT A Description of Lake Creek Project Site The following real property and all buildings and improvements, and fixtures or appurtenances, now or hereafter erected thereon: Tracts X-1 and X-2 COTTONWOOD FILING NO. 1 Eagle County, State of Colorado, according to Plat recorded July 27, 1993, in Book 614, Page 882 as Reception No. 510957 and Tract X-3, BRETT RANCH PUD, according to Plat recorded May 20, 1998, in Book , Page as Reception No. 657151 A-1 WE - 70162/300 - 0042985.03 a I ?O �®+. EAGLE COUNTY, COLORADO GENERAL AND NO -LITIGATION CERTIFICATE This General and No -Litigation Certificate is delivered by the undersigned officials of Eagle County, Colorado (the "County") in connection with the issuance by Lake Creek Affordable Housing Corporation (the "Corporation") of $27,990,000 aggregate principal amount of its Multifamily Housing Project Revenue Refunding Bonds, Series 1998 (the "Bonds"), pursuant to the terms of a Trust Indenture dated as of July 1, 1993, as supplemented by a First Supplemental Trust Indenture dated as of August 1, 1998 (the "Indenture") between the Corporation and U.S. Bank Trust National Association, as Trustee (the "Trustee"). The proceeds of the Bonds will be used to refinance the costs of a 270-unit apartment project known as the "Lake Creek Apartments" and related facilities (the "Project"). All initially -capitalized terms used in this Certificate and not otherwise defined herein shall have the meanings given such terms in the Indenture. WE, THE UNDERSIGNED OFFICIALS OF THE COUNTY, HEREBY CERTIFY THAT: 1. The County is a political subdivision of the State of Colorado with full power and authority to execute and deliver the Project Agreement, to perform its obligations thereunder and to carry out the transactions contemplated thereby to be carried out by it and has taken all proceedings and obtained all approvals required in connection therewith by applicable law. 2. Attached as Exhibit A hereto is a true, correct and complete copy of a Resolution finally approved by the Board of County Commissioners on August 3, 1998, approving the Project Agreement between the County and the Corporation and the issuance of the Bonds by the Corporation. Said Resolution was duly adopted by a majority of the members of the Board of County Commissioners in accordance with Colorado law at a duly noticed regular public meeting of the Board of County Commissioners, the convening of such meeting and the adoption of such Resolution being in accordance with all requirements of law, and procedural rules of the Board of County Commissioners. Such Resolution has not been repealed, amended or modified since its adoption and is in full force and effect on the date hereof. 3. The County has authorized, by all necessary official action, the execution, delivery, and due performance of the Project Agreement and any and all such other agreements and documents as may be required to be executed, delivered and received by the County in order to carry out, give effect to and consummate the transactions contemplated by the Project Agreement. The Project Agreement was duly executed and delivered on behalf of the County by James E. Johnson, Jr., as Chair of the Board of County Commissioners, and attested on behalf of the County by Sara J. Fisher, as Clerk and Recorder; the signatures of said officers thereon \\\DE - 67496/1 - 0043046.02 !4 lr l AUTHORIZING RESOLUTION A-1 \\\DE - 67496/1- 0043046.02 .� AM. are their respective genuine signatures; and the seal thereunto affixed is the official seal of the County. 4. To the best of the knowledge of the undersigned officers, there is no action, suit, proceeding or investigation at law or in equity, before or by any court or any federal, state or local governmental authority or agency, pending or, to the knowledge of the County, threatened against the County (a) wherein an unfavorable decision, finding or ruling would contest or adversely affect the Corporation, the Project, the enforceability of or the authority or ability of the County to perform its obligations under the Project Agreement or the existence or powers of the County or its governing body or officials, or (b) to contest, restrain or enjoin the issuance or sale of the Bonds, the adoption of the County Resolution approving the Bonds, the execution and delivery of the Project Agreement or compliance by the County with the provisions thereof. 5. The Corporation has no taxing power. The Corporation does not receive any support from any County fund, and the County expects the Corporation to continue operating as a business on a self-supporting basis and without reliance on grants or subsidies from the County, the State of Colorado or other local governments, whether in the form of cash, services, construction, repair or maintenance of Corporation assets, or any other thing of value. 6. The following persons have been appointed by the Board of County Commissioners of the County to serve as Directors of the Corporation: E. Johnnette Phillips Tom Boselli David Carter James G. Fitzpatrick IN WITNESS WHEREOF, we hereunto set our respective signatures as such officials of the County and have affixed the seal of the County as of the,1W day of August, 1998. of LaC': [SEAL] e I W y ,t ORA 0 Sara J. Fisher Clerk and Recorder es E. Johns i, Jr. hair, Board of CounTy Commissioners R. Fritze Attorney 2 ME-694MI -00 3N&02 STATE OF COLORADO ) ) ss. CITY AND COUNTY OF DENVER ) The foregoing instrument was acknowledged before me this day of August, 1998 by Jack D. Lewis, as Vice President, on behalf of LAKE CREEK AFFORDABLE HOUSING CORPORATION, a Colorado nonprofit corporation. WITNESS my hand and official seal. My Commission expires: [SEAL] Notary Public STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) 1 The foregoing instrument was acknowledged before me this 5'=� day of August, 1998 by James E. Johnson, Jr., as Chairman of the Board of County Commissioners, on behalf of the EAGLE COUNTY, COLORADO. WITNESS my hand and official seal. My Commission expire [SEAL] Nota W Public 6 \\\DE-'10162n W - O 198§M Arizinals to: I. Contract Book 2. 3. 4. Conies to: I - Accounting 2. 3. 4.