Loading...
HomeMy WebLinkAboutCDC/2003-26 . ,----~. RESOLUTION NO. CDC/2003-26 2 3 A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING AN AMENDMENT TO THE 2000 OWNER PARTICIPATION AND EDI LOAN AGREEMENT, DATED AS OF SEPTEMBER 18, 2000 BY AND BETWEEN 303, L.L.C., AND THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO 4 5 6 7 WHEREAS, 303, L.L.C., a California limited liability company (the "Owner") and the Redevelopment Agency of the City of San Bernardino (the "Agency") have previously entered into that certain agreement entitled "2000 Owner Participation and ED! Loan Agreement," dated as of September 18, 2000, (the "Agreement") and concurrently therewith the Owner entered into a separate agreement with the City of San Bernardino entitled "2000 Community Development Block Grant Program Section 108 Project Development Loan Agreement," dated September 18, 2000, amended (the "City Section 108 Loan Agreement"), pursuant to which the Owner completed its acquisition of the "303 Third Street Parcel", as this term is defined in the 8 9 10 11 12 13 14 Agreement; and 15 WHEREAS, the Agency has previously disbursed the sum of Three Hundred Forty Four 16 Thousand Dollars ($344,000) to the Owner for the acquisition of the 303 Third Street Parcel as 17 provided under the Agreement; and 18 WHEREAS, the Owner and the Agency believe it IS appropriate to amend the 19 Agreement as set forth in this Amendment. 20 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS FOLLOWS: 21 22 23 Section 1. The Commission hereby approves the Amendment to 2000 Owner 24 Participation and ED! Loan Agreement and ED! Loan Forbearance Agreement (303 Third 25 Street Project) dated as of July 1, 2003 (the "Amendment") by and between the Owner and the -1- P:\Agendlls\Resolutlons\Resoluiions\2003\03-08-04 303 W Third St CDC Reso.doc .-' CDC/2003-26 Agency in the form attached as Exhibit "A". The Chair of the Commission and the Agency Secretary are hereby authorized and directed to execute the Amendment on behalf of the Agency, together with such technical and conforming changes as may be recommended by the Executive Director of the Agency in consultation with Agency special legal counsel. The Resolution shall become effective immediately upon its adoption. 2 3 4 5 Section 2. 6 /1/ 7 //1 8 /1/ 9 /1/ 10 /1/ 11 /1/ 12 /1/ 13 //1 14 //1 15 /1/ 16 /1/ 17 18 //1 19 /1/ 20 /1/ 21 /1/ 22 1/1 23 /1/ 24 //1 25 -2- P:\Agendas\Resolutlons\Resolutlons\2003\03-08-04 303 W Third Sf CDC Reso.doc CDC/2003-26 3 A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING AN AMENDMENT TO THE 2000 OWNER P ARTICIP A TION AND EDI LOAN AGREEMENT, DATED AS OF SEPTEMBER 18, 2000 BY AND BETWEEN 303, L.L.C., AND THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO 2 4 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the 6 Community Development Commission of the City of San Bernardino at a j t. regular meeting 7 thereof, held on the 4th day of August 8 Commission Members: Aves Navs ESTRADA x 9 LONGVILLE x 10 - MCGINNIS X 11 DERRY -1L- 12 SUAREZ ~ 13 ANDERSON ---1L- 14 MC CAMMACK ~ 15 16 , 2003, by the following vote to wit: Abstain Absent 17 The foregoing resolution is hereby approved this 1\11.-t August ,2003. 18 19 t2.A les, hairperson ity Development Commission ity of San Bernardino 20 21 22 Approved as to form and Legal Content: By: ~ Agenc)\,Counsel .s p~C''i 0./ 23 24 25 -3- P:\Agendas\Resolutions\Resolutions\2003\03-08-04 303 W Third St CDC Reso.doc CDC/2003-26 AMENDMENT TO 2000 OWNER P ARTICIP A TION AND ED! LOAN AGREEMENT AND EDI LOAN FORBEARANCE AGREEMENT (303 Third Street Project) THIS AMENDMENT TO 2000 Owner Participation and ED! Loan Agreement (the "Amendment") is dated as of July 1, 2003, by and between 303, L.L.C., a California limited liability company (the "Owner") and the Redevelopment Agency of the City of San Bernardino, a body corporate and politic (the "Agency") and is entered into in light of the following facts: - - RECITALS -- The Owner and the Agency have previously entered into that certain agreement entitled "2000 Owner Participation and ED! Loan Agreement," dated as of September 18, 2000, as amended, (the "Agreement") and concurrently therewith the Owner entered into a separate agreement with the City of San Bernardino entitled "2000 Community Development Block Grant Program Section 108 Project Development Loan Agreement," dated September 18, 2000, amended (the "City Section 108 Loan Agreement"), pursuant to which the Owner completed its acquisition of the "303 Third Street Parcel", as this term is defined in the Agreement. The Agency has previously disbursed the sum of Three Hundred Forty Four Thousand Dollars ($344,000) to the Owner for the acquisition of the 303 Third Street Parcel as provided under the Agreement. The Owner and the Agency believe it is appropriate to amend the Agreement as set forth in this Amendment. NOW THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION THE OWNER AND THE AGENCY HEREBY AGREE AS FOLLOWS: Section 1. Unless the context of the usage of a particular term or phrase may otherwise require, the meaning of terms and phrases as used in this Amendment shall be the same as set forth in the Agreement. Section 2. Subject to the terms and conditions of this Amendment, Section 4(c) of the Agreement is hereby amended to read as follows: "(c) The ED! Loan shall be evidenced by ED! Loan Promissory Note in the form attached as Exhibit "C." The EDI Loan Promissory Note shall be dated by the Escrow Holder on the day when the conditions for the State Sale Agreement and Section 7.0 of the City Section 108 Loan Agreement have been satisfied by the parties and when the fee title interest of the State in the 303 Third Street Parcel is transferred to the Owner and thereafter, the EDI Promissory Note shall mature on November I, 2005 and shall bear no interest prior to its maturity or prepayment (except in the case of a default as provided in the ED! Loan 1 P:\Cierical Services Dept\Margaret\Agreements-Amendments\Agrmts-Amend 2003\03-08-19 303 3rd 5t Amend OP & EDI.DOC CDC/2003-26 Promissory Note). The EDI Loan Promissory Note shall be secured by the EDI Loan Performance Deed of Trust in the form attached as Exhibit "D", which affects the 303 Third Street Property, or such portion thereof as HUD may authorize and approve. The EDI Loan Performance Deed of Trust shall be subject only to the senior security interests of the City in the 303 Third Street Property under the terms of the City Section 108 Loan Agreement, and such other non- monetary lien exceptions to title in the 303 Third Street Property as approved by the Executive Director, in consultation with legal counsel, as permitted or consistent with all applicable provisions of the HUD Section 108 Loan Agreement." Section 3. Subject to the terms and conditions of this Amendment, the Agency hereby agrees to forbear from the collection of the principal amount of $344,000 as now due the Agency as of June 1,2003 under the EDI Loan Promissory Note until a new date of November 1, 2005 at which time the Owner shall pay the Agency the sum of $344,000 under the ED! Loan Promissory Note, provided, however, that the EDI Loan Promissory Note shall subordinated to any Construction Loan and shall be payable sooner upon the occurrence of a default or event of prepayment under the Agreement, the EDI Loan Promissory Note or the EDI Loan Performance Deed of Trust. The Executive Director of the Agency is hereby authorized and directed to deliver to the Owner an EDI Loan Promissory Note forbearance letter in a form approved by Special Legal Counsel to the Agency which includes a notice to the Owner that the maturity date of the ED! Loan Promissory Note has been modified by this Amendment to be a new date of November 1,2005. Section 4. Section 4(c) of the Agreement is hereby amended to read as follows: "(c) The ED! Loan shall be evidenced by ED! Loan Promissory Note in the form attached as Exhibit "C." The ED! Loan Promissory Note shall be dated by the Escrow Holder on the day when the conditions for the State Sale Agreement and Section 7.0 of the City Section 108 Loan Agreement have been satisfied by the parties and when the fee title interest of the State in the 303 Third Street Parcel is transferred to the Owner, and thereafter, the ED! Promissory Note shall mature on November 1, 2005, and shall bear no interest prior to its maturity or prepayment (except in the case of a default as provided in the EDI Loan Promissory Note). The ED! Loan Promissory Note shall be secured by the EDI Loan Performance Deed of Trust in the form attached as Exhibit "D," which affects the 303 Third Street Property, or such portion thereof as HUD may authorize and approve. The EDI Loan Performance Deed of Trust shall be subject only to the senior security interests of the Agency in the 303 Third Street Property under the terms of the City Section 108 Loan Agreement, this Construction Loan and such other non-monetary lien exceptions to title in the 303 Third Street Property as approved by the Executive Director, in consultation with legal counsel, as permitted or consistent with all applicable provisions of the HUD Section 108 Loan Agreement." The third (3rd) paragraph of Section 5 of the Agreement is hereby amended Section 5. to read as follows: "The Participation Fee shall be due and payable to the Agency by the Owner on November 1, 2005 or sooner upon the acceleration or prepayment of 2 P:\CIericaI Services Dept\Margarel\Agreements-Amendments\Agnnts-Amcnd 2003\03-08-19 303 3rd $t Amend OP & EDJ.DOC CDC/2003-26 the Construction Loan or the recordation of the Permanent Loan and shall be subordinated to any Construction Loan and payable as provided herein. Provided that the Participation Fee is paid to the Agency when due, no interest shall be payable by the Owner to the Agency on the Participation Fee prior to the time when it is due and payable. If not paid to the Agency in full when due, the outstanding balance of the Participation Fee shall bear interest at the maximum rate per annum permitted by law, until paid to the Agency in full." Section 6. Section 8 of the Agreement provides for the payment by the Owner of certain tax increment revenues, or a fee in lieu of annual payment of property taxes to the Agency for a limited period of time. Notwithstanding any other provisions of the Agreement or the Notice of Memorandum of Agreement to the contrary, such obligation to pay on the part of the Owner shall be deemed to by fully satisfied upon (i) payment to the Agency by the Owner of the cash amount equal to $250,000, plus an amount, if any, as may be payable to the Agency as described in the next sentence and (ii) the close of escrow for the sale of the 303 Third Street Property to the County of San Bernardino, as evidenced by a copy of both the buyer's and seller's escrow closing statements. Upon such sale to the County of San Bernardino of the 303 Third Street Property for any sales price in excess of $4,625,000, the Owner shall also remit to the Agency 60% of all sales proceeds paid by the County of San Bernardino to the Owner in excess of said $4,625,000 amount. Such obligation shall only be satisfied if the 303 Third Street Property is actually sold by the Owner to the County of San Bernardino, the required amount under this Amendment Section 6 is paid to the Agency, and title to the 303 Third Street Propertyhas transferred to the County of San Bernardino. When the conditions set forth in the two (2) preceding sentences have been satisfied, the Agency shall cause to be delivered to the County of San Bernardino an instrument in recordable form in which the Agency quitclaims to the County all of its right, title and interest in the covenant of the Owner to pay property taxes on an annual in lieu fee as otherwise set forth in Section 8 of the Agreement. In the event that the sale to the County of San Bernardino does not occur on or before November 1, 2005, then Section 8 of the Agreement shall remain in full force and effect and this Section 6 of this Amendment shall be of no further force and effect. The parties recognize that the County of San Bernardino will be paying to the Owner, or reimbursing the Owner, for certain additional core and shell construction costs and financing costs related thereto which costs shall not be deemed to be part of the sales price of the 303 Third Street Property provided that such costs relate solely to the construction, remodeling, purchase of materials and supplies, design and architectural and developer fees and permit fees for such County of San Bernardino requested additional core and shell construction costs. Section 7. This Amendment shall take effect when it has been approved by the governing board of the Agency and fully executed by the Owner and the Agency and when each of the conditions set forth in Section 4 of that certain Section 108 Loan Agreement Amendment by and between the Owner and the City of San Bernardino of even date herewith, have been satisfied. Section 8. Except as modified by this Amendment all other proVISIons of the Agreement and the ED! Promissory Loan Note and the EDI Loan Performance Deed of Trust and the Notice of Memorandum of Agreement remain in full force and effect and all of the 3 P:\Clerical Services Dept\Margaret\Agreements-Amendments\Agnnts-Amend 2003\03-08-19 303 3rd 8t Amend OP & EDI,DQC CDC/2003-26 representations, warranties and covenants of the Owner under the Agreement remain true and correct as of the date of execution of this Amendment by the Owner. Section 9. This Amendment may be executed by the parties in counterparts and when fully executed, each counterpart shall be deemed to be one original instrument. 4 P:\Clerical Services DeptWargaret\Agreements-Amendments\Agrmts-Amend 2003\03-08-19 303 3rd St Amend OP & EDI.DOC CDC/2003-26 . THIS AMENDMENT is executed by the authorized officers and members of the parties whose signatures appear below. AGENCY Redevelopment Agency of the City of San Bernardino, a bofty corporate and politic / ~ LL_____ _i/.. evelop~ent Commission ~;:4 . cretary Date: APPROVED AS TO FORM: By: \ ~~ Special gal Counsel Date: OWNER 303, L.L.C., a California limited liability corporation By. {~~ aJ{V.~'~ Martin A. Matich, Manager APPROVED AS TO FORM: By: Attorney for Owner 5 P:\Clerical Services Dept\Margaret\Agreements-Amendments\Agrmts~Amend 2003\03-08-19 303 3rd 5t Amend OP & EDJ.DOC