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HomeMy WebLinkAboutCDC/2009-47 II NOTE: Companion Resolutions- 2009-306, 2009-307, CDC/2009-45, CDCI2009-46, CDCI2009-47, CDC/2009-48 and CDC/2009-49 RESOLUTION NO. CDC/2009-47 1 2 3 4 5 6 7 8 9 WHEREAS, the City of San Bernardino, California (the "City"), is a municipal corporation RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO, CALIFORNIA, AUTHORIZING THE FUNDING OF VARIOUS CITY OF SAN BERNARDINO FISCAL YEAR 2009- 2010 PUBLIC IMPROVEMENT EXPENDITURES AND MAKING FINDINGS AND DETERMINATIONS AS TO THE BENEFIT TO THE VARIOUS REDEVELOPMENT PROJECT AREAS FOR UNDERTAKING PUBLIC IMPROVEMENTS IN CONNECTION WITH THESE VARIOUS CITY EXPENDITURES AND APPROVING CERTAIN OTHER EXPENDITURES AND APPROVING A CERTAIN LOAN AGREEMENT WITH THE CITY OF SAN BERNARDINO 10 and a charter city duly created and existing pursuant to the Constitution and the laws of the State of 11 California; and 12 WHEREAS, the Community Development Commission of the City of San Bernardino (the 13 "Commission") on behalf of the Redevelopment Agency of the City of San Bernardino (the 14 "Agency"), is a redevelopment agency, a public body, corporate and politic of the State of 15 California, organized and existing pursuant to the Community Redevelopment Law (Part I of 16 Division 24 commencing with Section 33000) of the Health and Safety Code of the State of 17 California (the "Act"); and 18 WHEREAS, pursuant to Section 33445 of the Act, the Agency may, with the consent of the 19 Mayor and Common Council of the City (the "Council"), pay all or a part of the cost of installation 20 and construction of any building, facility, structure or other improvement which is publicly owned 21 either within or without the boundaries of a redevelopment project area if the Council determines: 22 (1) that such buildings, facilities, structures or other improvements are of benefit to the 23 redevelopment project area or the immediate neighborhood in which the project is located, 24 regardless of whether such improvement is within another project area, or in the case of the project 25 area in which substantially all the land is publicly owned, that the improvement is of benefit to an 26 adjacent project area of the Agency; (2) that no other reasonable means of financing such buildings, 27 facilities, structures or other improvements is available to the community, and such determination 28 by the Commission and the Council shall be final and conclusive; and, (3) that the payment of funds 1 P:\Agendas\ResolulionsIResolutions\2009\08-17-09 EDA Budget Benefit FY 09-10 CDC Reso D,doc CDC/2009-47 1 for the cost of the facilities, structures or other improvements will assist in the elimination of one 2 (I) or more blighted conditions inside the project area; and 3 WHEREAS, the Council and the Commission have previously approved and adopted 4 Redevelopment Plans (collectively hereinafter referred to as the "Redevelopment Plans") for various 5 redevelopment project areas within the City, which project areas include: State College Project 6 Area, Central City North Project Area, Southeast Industrial Park Project Area, Northwest Project 7 Area, and Central City Merged Project Area; and 8 WHEREAS, it is in the interest of the present landowners within the Central City North 9 project areas subject to the Redevelopment Plans (the "Project Area") and the residents, both within 10 the Project Areas and within the City generally, that the Agency cause the funding of certain 11 improvements consisting of: (I) the Agency payment of the COP debt service payment for the 12 Central Police Department building ($490,000) within the Central City North Project Area; and (2) 13 the Agency payment of the Central Library Lease Revenue debt service payment ($690,000) for the 14 Central Library located within the Central City North Project Area; (collectively referred to herein 15 as the "City Funded Improvements"); and 16 WHEREAS, the Central Police Department Building and the Central Library are centrally 17 located facilities servicing all residents of the City with various City functions, and in support of the 18 retail, business and commercial functions, which includes servicing the residents, workers and 19 business owners within the State College Project Area, the Northwest Project Area and the 20 Southeast Industrial Park Project Area (collectively referred to herein as the "Benefited Project 21 Areas"); and 22 WHEREAS, each of the aforementioned Benefited Project Areas are generally contiguous or 23 in proximity to the Central City North Project Area, and the Central City North Project Area serves 24 the commercial, retail, City services and other community needs of each of the Benefited Project 25 Areas as to those functions that cannot be provided separately within each of the Benefited Project 26 Areas; and 27 28 2 P:\Agendas\Resolulions\ResolutiollS\2009\08-17-09 EDA Budget Benefit FY 09-)0 CDC Re~o D_rloc CDC/2009-47 1 WHEREAS, the Project Area is suffering from stagnant property values and impaired 2 investments, and in order to promote the City's health, safety and welfare, it is important that the 3 Agency fund the costs of the aforementioned City Funded Improvements; and 4 WHEREAS, in connection with the funding of the City Funded Improvements, it is proposed 5 that the Agency shall utilize revenues attributable to the Benefited Project Areas as follows: (I) 6 State College Project Area ($637,000); (2) Southeast Industrial Park Project Area ($413,000); and, 7 (3) Northwest Project Area ($129,800); and 8 WHEREAS, it is appropriate at this time for the Commission to make certain findings and 9 determinations and take certain actions with respect to the Agency's funding of the City Funded 10 Improvements; and 11 WHEREAS, the City has requested a certain loan from the Agency for the 2009-2010 Fiscal 12 Year in the form as attached hereto as Exhibit "A". 13 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE 14 CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS 15 FOLLOWS: 16 Section 1. The Recitals hereinabove are true and correct and are incorporated herein by 17 this reference. 18 Section 2. The Commission hereby approves the payment by the Agency of the City 19 Funded Improvements in order to ensure the economic enhancements and stability of the Benefited 20 Project Areas and other neighborhoods with the City for the reasons set forth in the Recitals 21 hereinabove. The Commission also finds and determines that no other reasonable means of 22 financing the City Funded Improvements is presently available to the Agency and the City, and the 23 Agency requires the use of revenues generated from the Benefited Project Areas, and the 24 Commission further finds that the funding of the City Funded Improvements will enhance the 25 viability in the Benefited Project Areas thereby eliminating existing blighted conditions in the 26 Benefited Project Areas, provide the residents, workers and businesses with City services, and retail, 27 business, commercial and other community services from within the Central City North Project 28 Area to the Benefited Project Areas and the residents and businesses located therein. 3 P:'AgendaslResolutions\Resolutions\2009\08-17-09 EDA Budget Benefit FY 09_10 CDC ResQ D_doc [. CDC/2009-47 The Commission hereby approves the Loan Agreement as attached hereto as 1 Section 3. 2 Exhibit "A" and authorizes the execution and delivery of the loan by the Interim Executive Director 3 of the Agency in the proposed amount equal to $1,310,000. 4 Section 4. The Agency Secretary is hereby authorized and directed to cause this 5 Resolution to be transmitted to the City for consideration in connection with appropriate action by 6 that body. 7 Section 5. The findings and determinations herein shall be final and conclusive. The 8 Resolution shall become effective immediately upon its adoption. 9 II 10 II 11 II 12 II 13 II 14 II 15 II 16 II 17 II 18 II 19 II 20 II 21 II 22 II 23 II 24 II 25 II 26 II 27 II 28 II 4 P:\Agendas\Rc.olutions\Resolutions\2009\08-17-09 EDA Budget Benefit FY 09-10 COC Reso D,doc 1 2 3 4 5 6 7 8 CDC/2009-47 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO, CALIFORNIA, AUTHORIZING THE FUNDING OF VARIOUS CITY OF SAN BERNARDINO FISCAL YEAR 2009- 2010 PUBLIC IMPROVEMENT EXPENDITURES AND MAKING FINDINGS AND DETERMINATIONS AS TO THE BENEFIT TO THE VARIOUS REDEVELOPMENT PROJECT AREAS FOR UNDERTAKING PUBLIC IMPROVEMENTS IN CONNECTION WITH THESE VARIOUS CITY EXPENDITURES AND APPROVING CERTAIN OTHER EXPENDITURES AND APPROVING A CERTAIN LOAN AGREEMENT WITH THE CITY OF SAN BERNARDINO I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community Development Commission of the City of San Bernardino at a joint regular 9 meeting 10 18 19 20 thereof, held on the 17th day of Aves , 2009, by the following vote to wit: August Abstain Absent Navs x ----'L X X ~ X X 2~ Secretary "\ A'fJ!.-; ol..O day of_ August ,2009. 21 The foregoing Resolution is hereby approved this 22 23 24 25 Approved as to Form: 26 27 By: \,t-:::.....-~ 28 A~l 5 P:\Agendas\ResclutiQns\Resolutions\2009\08-17.09 EDA Budget Benefit FY 09-10 CDC Reso O,doc 2009-307 CDC/2009-47 INTERIM LOAN AGREEMENT THIS INTERIM LOAN AGREEMENT (this "Agreement") is entered into as of this 17th day of August, 2009, by and between the City of San Bernardino, a charter city, organized under the Constitution and laws of the State of California (the "Borrower" or the "City"), and the Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic (the "Lender" or the "Agency"). In this Agreement, any reference to a "Party" shall mean either the Borrower or the Lender and any reference to the "Parties" shall collectively mean both the Borrower and the Lender. RECITALS WHEREAS, the Borrower desires to borrow funds from the Lender in accordance with and pursuant to this Agreement and the Revenue Anticipation Note (as defined below); and WHEREAS, the Borrower is of the reasonable understanding that adequate financial resources will be made available to repay the financial obligations incurred by the Borrower pursuant to this Agreement within the current fiscal year of the Borrower, and the Borrower does not intend to seek to have the financial obligations of this Agreement and the Revenue Anticipation Note forgiven or otherwise compromised to the financial detriment of the Lender; and WHEREAS, the Parties intend that this Agreement and the Revenue Anticipation Note be deemed for all purposes to be a legally enforceable contractual obligation between the Parties in full compliance with the City Charter and all other applicable provisions of California law with respect to the City and the limitations on the incurring of long-term debt obligations and in full compliance with all requirements of the Community Redevelopment Law ("CRL") with respect to the Agency for the use and investment of tax increment revenues of the Agency pending the final disposition or ultimate use of such assets of the Agency in furtherance of its redevelopment purposes and in compliance with the CRL; and , , WHEREAS, the Lender desires to make one (I) or more principal advances to the Borrower in accordance with and pursuant to this Agreement and the Revenue Anticipation Note. NOW, THEREFORE, in consideration of the above recitals of this Agreement, and for such other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows: 1. The Loan. The Lender shall loan to the Borrower a principal amount not to exceed One Million Three Hundred Ten Thousand Dollars ($1,310,000), in the aggregate (the "Loan"), as evidenced by the Revenue Anticipation Note, dated concurrently herewith, as executed by the I P:\Agenda,lAgeoda Attll\:hment.\Agenda Allachmenls\Agenda Anachmenls\Agnm,.Amend 2009\08-17-09 EOA Budgel FY 09-]0 Interim Loan Agreemenl.doc 2009-307 CDC/2009-47 Borrower in favor of the Lender (the "Revenue Anticipation Note" or the "Note"). The Lender shall make one (1) or more advances of principal to the Borrower in the principal amount not to exceed One Million Three Hundred Ten Thousand Dollars ($1,310,000), in the aggregate, subject to the terms, covenants and conditions of the Revenue Anticipation Note and this Agreement. The Loan is not a revolving loan, and any amount of the Loan repaid by the Borrower to the Lender may not be re-borrowed by the Borrower. Upon three (3) business days' prior written notice from the Borrower to the Lender, the Lender shall disburse to the Borrower the requested advance under the Revenue Anticipation Note. The Revenue Anticipation Note is attached hereto and incorporated herein by this reference as Exhibit "A." 2. Interest. Interest shall accrue and compound daily at the per annum interest rate of 1.75% (the "Interest Rate") on the unpaid principal balance of each Loan advance made by the Lender to the Borrower commencing on the date of each disbursement of a Loan advance by the Lender to the Borrower until paid in full by the Borrower to the Lender, in accordance with and subject to the terms, covenants and conditions of the Revenue Anticipation Note and this Agreement. Interest shall be calculated on the actual number of days in a year equal to either 365 or 366 days and such calculation of interest shall be compounded on a daily basis while any amount of the Indebtedness remains unpaid and outstanding. In the Event of a Default (as defined in Section 7 of this Agreement), interest shall accrue at the Default Interest Rate (as defined in Section 4 of this Agreement) on the Indebtedness (as defined in Section 4 of this Agreement) from the Maturity Date (as defined in Section 4 of this Agreement) until paid in full by the Borrower to the Lender. 3. Prepayment. The unpaid principal amount under the Revenue Anticipation Note may be prepaid by the Borrower to the Lender, at any time, in whole or in part, without premium or penalty, prior to the Maturity Date together with accrued and unpaid interest to the date of any such prepayment. 4. Repayment of the Loan Principal and Interest. No periodic payments of either (i) principal and interest, or (ii) interest-only, are due and payable by the Borrower to the Lender during the term of the Revenue Anticipation Note. On June 30, 2010 (the "Maturity Date"), the Borrower shall pay to the Lender the unpaid principal amount advanced by the Lender to the Borrower under the Revenue Anticipation Note, and all accrued and unpaid interest at the Interest Rate accruing from the date of the Revenue Anticipation Note on the unpaid principal amount advanced by the Lender to the Borrower under the Revenue Anticipation Note, and any other amounts due under the Revenue Anticipation Note and this Agreement, including, without limitation, attorneys' fees and court costs (collectively, the "Indebtedness"). If the Borrower fails to pay the Indebtedness to the Lender on the Maturity Date, the Borrower shall pay to the Lender, on written demand from the Lender, a late charge in the amount of three percent (3%) of the unpaid principal amount of the Loan. Further, without notice or demand from the Lender to the Borrower, interest shall accrue on the Indebtedness at the rate of the Interest Rate plus two (2) percentage points (i.e., two hundred (200) hasis points) 2 P:lAgeooa.\Agenda Auachmenl.\Agenda AnachmeJIlSlAgenda Allachment'\Agrmls-Amend 2009\Og_17..o9 EDA Budget FY 09-10 Interim Loan Agreernent.doc 2009-307 CDC/2009-47 (the "Default Interest Rate") from the Maturity Date until the Indebtedness is paid by the Borrower to the Lender in full, should the Borrower fail or refuse to pay to the Lender the Indebtedness due on the Maturity Date. The Lender shall charge the Borrower no origination points or loan fees in connection with the making of the Loan by the Lender to the Borrower. 5. No Securitv: Borrower Payment Covenant. The Loan is not secured by the pledge of, the assignment of, or the granting of any security interest in, the assets, funds, revenues or properties of the Borrower but this Loan shall be a general obligation of the City in accordance with Government Code Section 53857. Further, the obligations of the Borrower under the Revenue Anticipation Note and under this Agreement are not guaranteed by any entity or individual. The Borrower hereby agrees and covenants to appropriate funds to permit the Borrower to pay to the Lender the Indebtedness on or before the Maturity Date. 6. Representations. Warranties and Covenants of Borrower. The Borrower represents, warrants and covenants to the Lender, as follows: (a) The Borrower is a charter city, has been duly organized under the laws and Constitution of the State of California and has the power and authority to enter into this Agreement and to incur the obligations under the Revenue Anticipation Note. (b) The execution of this Agreement and of the Revenue Anticipation Note has been duly authorized by the Mayor and Common Council of the City of San Bernardino as the legislative body ofthe Borrower and such execution does not require the approval or consent of any other governmental entity. (c) No governmental or regulatory approvals that have not been previously obtained by the Borrower are required for the due approval, execution and delivery by the Borrower of this Agreement and of the Revenue Anticipation Note. , (d) This Agreement and the Revenue Anticipation Note have been, and will be, duly executed and delivered by the Borrower and this Agreement and the Revenue Anticipation Note do, and will, constitute valid and binding obligations of the Borrower, payable from the revenues, funds and assets, generally, of the Borrower as set forth herein and in the Revenue Anticipation Note. ( e) The Borrower shall deliver to the Lender, within thirty (30) calendar days after receipt by the Borrower of written request ftom the Lender, audit statements and budgets, financial statements and/or such any other information, studies and reports (singularly and collectively, the "Reports") requested by the Lender, as prepared by the Borrower at its sole cost and expense, which Reports shall be reasonably acceptable to the Lender. (f) The representations, warranties and covenants of the Borrower contained in this Agreement and in the Recitals hereof shall be true and correct in all material respects on and as of the date that the Lender disburses each Loan advance under the Revenue Anticipation 3 P:\AgendaslAgenda AIUIChmenlslAgenda AtlaCllmenls\Agenda Attachrnenls\Agnnls-Amend 2009\O8.1?--(19 EDA Budg<:t FY 09.10 Interim Loan AgreClTll'nt_doc 2009-307 CDC/2009-47 Note and under this Agreement (the "Funding Date"), with the same force and effect as though such representations, warranties and covenants had been made on and as of each such Funding Date. (g) On and as of each Funding Date, the Borrower shall not be in default under the Revenue Anticipation Note or under this Agreement. The Borrower shall not, to the best ofthe Borrower's knowledge, contravene any provision of federal, state, municipal or local law, statute, rule or regulation, as amended from time to time, and the Borrower shall not conflict or be inconsistent with or result in any breach of any terms, covenants or provisions of, or constitute a default under, or result in the creation or imposition of a lien pursuant to the terms of any loan agreement, credit agreement or any other agreement, contract or instrument to which the Borrower is a party or by which the Borrower is bound or to which the Borrower may be subject. 7. Events of Default. (a) Bv Lender. The following shall constitute an event of default by the Lender: (i) the failure by the Lender to fund the Loan in accordance with the Revenue Anticipation Note and this Agreement within thirty (30) calendar days after the written request by the Borrower to the Lender, provided the Borrower is not in default under the Revenue Anticipation Note or this Agreem"nt. (b) Bv Borrower. The failure by the Borrower to pay to the Lender the Indebtedness on or before the Maturity Date shall constitute an event of default by the Borrower. , 8. Remedies. Upon a default by the Lender, the Borrower may seek appropriate legal, injunctive or equitable relief to enforce the obligations of the Lender under this Agreement. Upon a default by the Borrower, the Lender may institute any proceeding at law or in equity to enforce the obligations of the Borrower under the Revenue Anticipation Note and/or under this Agreement. In any action brought under this Agreement, the prevailing Party sh~ll be entitled to reimbursement from the other Party of its costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) in bringing such action. Reasonable attorneys' fees shall include, without limitation, the costs, salary and expenses of the City Attorney for the City, and members of his office in enforcing this Agreement and/or the Revenue Anticipation Note. 9. Assignment. The Lender shall be entitled to, and may assign this Agreement and the Revenue Anticipation Note and the Lender's right to receive the Indebtedness under the Revenue Anticipation Note and under this Agreement to any other entity or individual, without obtaining the prior consent from the Borrower. The Borrower shall not delegate its obligations under this Agreement and/or under the Revenue Anticipation Note, without the prior written consent of the Lender, which written consent may be given or withheld in the sole and absolute discretion of the Lender. 4 P:\Agenda.\Agcnda Attacllmenls\Agenda Altachmenls\Agcnda Atlllchments\Agnnts-Amond 2009\08_[1-09 BDA Budg<:l FY 09_10 Interim Loan Agreemenl.do<:: 2009-307 COC12009-47 10. Term. This Agreement shall terminate upon the payment in full by the Borrower to the Lender of the Indebtedness. II. Notices. Notices shall be presented in person or by certified or registered United States mail, return receipt requested, postage prepaid, or by overnigbt delivery made by a nationally recognized delivery service to the addresses noted below. Notice presented by United States mail shall be deemed effective the second business day after deposit with the United States Postal Service. This Section shall not prevent giving notice by personal service or telephonically verified fax transmission, which shall be deemed effective upon actual receipt of such personal service or telephonic verification. Either Party may change their address for receipt of written notice by so notifying the other Party in writing. To Lender: Redevelopment Agency of the City of San Bernardino 201 North "E" Street, Suite 301 San Bernardino, California 92401 Attention: Emil A. Marzullo, Interim Executive Director Phone: (909) 663-1044 Fax: (909) 888-9413 p-. City of San Bernardino City Hall 300 North "0" Street, Sixth Floor San Bernardino, California 92418 Attention: Charles McNeely, City Manager Phone: (909) 384-5122 Fax: (909) 5138 To Borrower: 12. Governing Law: Jurisdiction. This Agreement shall be governed by the laws of the State of California, and in the event either Party seeks judicial relief or seeks to enforce or to interpret any provision of this Agreement and/or the Revenue Anticipation Note, such actions shall be filed in the Superior Court of San Bernardino County, State of California, Main Branch, in the City of San Bernardino, California. 13. Entire Agreement. This Agreement and the Revenue Anticipation Note constitute the entire agreement between the Parties and may not be amended without the prior written consent of the 5 P:\Agcndas\Agenda Auachmen1S\Agenda Auachments\Agenda AuachmentslAgrmls-Amend 2009\08-17-09 EDA Budget FY 09-10 Interim Loan Agreement.doc 2009-307 CDC12009-47 Parties hereto. This Agreement and the Revenue Anticipation Note supersede all prior negotiations, discussions and previous agreements between the Parties concerning the subject matter herein and therein. The Parties intend this Agreement and the Revenue Anticipation Note to be the final expression of their agreement with respect to the terms herein and a complete and exclusive statement of such terms. No modification, amendment or waiver of any term herein shall be binding unless executed in writing by the Parties hereto. 14. Amendment. This Agreement and the Revenue Anticipation Note may be amended and the times for performance hereunder and pursuant to the Revenue Anticipation Note may be extended as deemed necessary by written instruments duly approved and executed by the Parties hereto and thereto and approved by the respective governing bodies of the Parties. Any such amendments or modifications shall be valid, binding and legally enforceable only if in written form and executed by the Parties hereto after the same have been duly approved and authorized for execution. 15. Severabilitv. Each and every section of this Agreement shall be construed as a separate and independent covenant and agreement. If any term or provision of this Agreement or the application thereof shall be declared invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to circumstances other than those to which it is invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the extent permitted by law. 16. No Waiver bv the Lender. No waiver of any breach, default or failure of condition under the terms of the Revenue Anticipation Note or under this Agreement shall be thereby implied from any failure of the Lender to take, or any delay by the Lender in taking action with respect to such breach, default or failure or from any previous waiver of any similar or related breach, default or failure; and a waiver of any term of the Revenue Anticipation Note or this Agreement must be made in writing and shall be limited to the express tNritten terms of such waiver. Borrower waives presentment, protest and demand, notice of protest, demand and dishonor, and any and all other notices or matters of a like nature. 17. Successors and Assigns. The promises and agreements herein contained shall bind and inure to the benefit of, as applicable, the respective administrators, successors and assigns ofthe Parties. 6 P:~nda:sl.Agend.& AtlochmcntslAgcnda AUachmentslAgenda Allachmenls\Agrmls-Amcnd 2009\08_17.09 EDA Bud!!,,! FY 09-10 Interim Loan Agreement_doc 2009-307 CDC/2009-47 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date first written above. LENDER Redevelopment Agency of the City of San Bernardino, a public bo~orporate llI)d politic By: ~ Ilt;, Emil A. Marzu 0, Interim Executive Director Approved as to Form and Legal Content: Cc~~ Agency Coun BORROWER City of San Bernardino, a charter cit By (SEAL) ATTEST: /} .t-,. /1,' / By:U-+'~ ',,} ~ City Clerk Approved As To Form: By: 7 P:\AgendBs\Agenda AlIachment9\Agenda AllllChmenls\Agenda Altachments\Agrmls-Amend 2009\O8-17"()9 EDA Budget FY 09_1(} Interim Loan Agreement.doc 2009-307 CDC12009-47 EXHIBIT "A" REVENUE ANTICIPATION NOTE 8 P:\Agcndas\Agenda Attaohrnenls\Agenda Alta<;hmcnls\Agenda AttachmentslAgrmts-Amend 2009108-17-09 EDA Budget FY {)<).1 0 Interim Loan Agreement.doc 2009-307 CDC/2009-47 REVENUE ANTICIPATION NOTE $1,310,000 August 17,2009 FOR VALUE RECEIVED, the undersigned, the City of San Bernardino, a charter city organized under the laws of the State of California (the "Borrower" or the "City"), hereby promises to pay to the Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic (the "Lender" or the "Agency"), or to order, at the following address 201 North "E" Street, Suite 30 I, San Bernardino, California 92401, or at such other place as the Lender, may from time to time designate by written notice to the Borrower, in lawful money of the United States, the principal sum of One Million Three Hundred Ten Thousand Dollars ($1,310,000), or such lesser amount of advances as shall be made by the Lender to the Borrower, with interest in accordance with this Revenue Anticipation Note on the unpaid principal balance from the date of this Revenue Anticipation Note, and all other amounts due underthis Revenue Anticipation Note, until paid in full by the Borrower to the Lender. The obligation of the Borrower with respect to this Note is also governed by the interim loan agreement, as executed by and between the Borrower and the Lender concurrently herewith (the "Interim Loan Agreement"). 1. PrincinaI Advances. This Revenue Anticipation Note (this "Note" or this "Revenue Anticipation Note") evidences the obligation of the Borrower to the Lender for the repayment of the loan (the "Loan") made by the Borrower to the Lender under this Revenue Anticipation Note and under the Interim Loan Agreement. The Lender may make one (I) or more advances of principal to the Borrower in the principal amount not to exceed One Million Three Hundred Ten Thousand Dollars ($1,310,000), in the aggregate, subject to the terms, covenants and conditions of this Revenue Anticipation Note and the Interim Loan Agreement. The Loan is not a revolving loan, and any amount of the Loan repaid by the Borrower to the Lender may not be re-borrowed by the Borrower. Upon three (3) business days' prior written notice from the Borrower to the Lender, the Lender shall disburse to the Borrower the requested advance under this Revenue Anticipation Note. , , 2. Interest. Interest shall accrue and compound daily at the per annum interest rate of 1.75% (the "Interest Rate") on the unpaid principal balance of each Loan advance made by the Lender to the Borrower commencing on the date of each disbursement of a Loan advance by the Lender to the Borrower until paid in full by the Borrower to the Lender, in accordance with and subject to the terms, covenants and conditions of this Revenue Anticipation Note and the Interim Loan Agreement. In the Event of a Default (as defined in Section 5) under this Revenue Anticipation Note, interest shall accrue at the Default Interest Rate (as defined in Section 4) on the Indebtedness (as defined in Section 4) from the Maturity Date until paid in full by the Borrower to the Lender. 3. Prenavment. The unpaid principal amount under this Revenue Anticipation Note may be prepaid by the Borrower to the Lender, at any time, in whole or in part, without premium or penalty, prior to the Maturity Date. 4. Renavment of Loan Princinal and Interest. No periodic payments of either (i) principal and interest, or (ii) interest-only, are due and payable by the Borrower to the Lender during P:\Agenda.\Agenda AnachmenlslAgenda Attachmem.\Agenda Anachmenh\Ag!ll1ts-Amend 2009\08.17-09 EDA Budget FY 09-10 Revenue Anticipation Not" doc 2009-307 CDC/2009-47 the term of this Revenue Anticipation Note. On June 30, 2010 (the "Maturity Date"), the Borrower shall pay to the Lender the unpaid principal amount advanced by the Lender to the Borrower under this Revenue Anticipation Note; and all accrued and unpaid interest at the Interest Rate accruing from the date of this Revenue Anticipation Note on the unpaid principal amount advanced by the Lender to the Borrower under this Revenue Anticipation Note, and any other amounts due under this Revenue Anticipation Note and the Interim Loan Agreement, including, without limitation attorneys' fees and court costs (collectively, the "Indebtedness"). If the Borrower fails to pay the Indebtedness to the Lender on the Maturity Date, the Borrower shall pay to the Lender, on written demand from the Lender, a late charge in the amount of three percent (3%) of the unpaid principal amount of the Loan. Further, without notice or demand from the Lender to the Borrower, interest shall accrue on the Indebtedness at the rate of the Interest Rate plus two (2) percentage points (Le., two hundred (200) basis points) (the "Default Interest Rate") from the Maturity Date until the Indebtedness is paid by the Borrower to the Lender in full, should the Borrower fail or refuse to pay to the Lender the Indebtedness due on the Maturity Date. 5. Acceleration ofPavment. The Indebtedness of this Loan shall become immediately due and payable by the Borrower to the Lender, at the option of the holder and without demand or notice from the Lender to the Borrower, should the Borrower fail to pay any amount due and payable under this Revenue Anticipation Note or under the Interim Loan Agreement (and "Event of Default"). Upon the occurrence of an Event of Default, the Lender shall be permitted to exercise and enforce all rights and remedies available to the Lender, under this Revenue Anticipation Note, under this Interim Loan Agreement, at law or in equity. 6. Application ofPavments. All payments received on account of this Revenue Anticipation Note shall first be applied to all attorneys' fees, court costs and all other costs due under this Revenue Anticipation Note and under the Interim Loan Agreement, then to all accrued and unpaid interest due under this Revenue Anticipation Note, and then to the reduction of the unpaid principal amount. 7. Attornevs' Fees. The Borrower hereby agrees to pay all costs and expenses, including reasonable attorneys' fees, which may be incurred by the Lender in the enfotcement ofthis Revenue Anticipation Note. For purposes of this Revenue Anticipation Note, attorneys' fees shall include, without limitation, the costs, salary and expenses of the City Attorney for the City, and members of his office in enforcing this Revenue Anticipation Note. 8. Notices. Except as may be otherwise specified herein, any approval, notice, direction, consent, request or other action by the Lender shall be in writing and must be communicated to the Borrower at 300 North "0" Street, City Hall, Sixth Floor, San Bernardino, State of California, to the attention of the City Manager, or at such other place or places as the Borrower shall designate to the Lender in writing, from time to time, for the receipt of communications from the Lender. Mailed notices shall be deemed delivered and received five (5) working days after deposit in the United States mails in accordance with this provIsIOn. 9. Governinl! Law. This Revenue Anticipation Note shall be construed in accordance with and be governed by the laws of the State of California. P:\AgendasIAgenda Attachments\Agenda AttachmetltslAgenda AltachmenalAgrmlS-Ameoo 2009\08-17-09 EDA Budget FY 09_10 Revenue Anticipation Note.doc 2009-307 CDC(2009-47 10. Severability. If any provision of this Revenue Anticipation Note shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby. II. No Waiver bv the Lender. No waiver of any breach, default or failure of condition under the terms of this Revenue Anticipation Note or under the Interim Loan Agreement shall be thereby be implied from any failure of the Lender to take, or any delay by the Lender in taking action with respect to such breach, default or failure or from any previous waiver of any similar or related breach, default or failure; and a waiver of any term of this Revenue Anticipation Note or the Interim Loan Agreement must be made in writing and shall be limited to the express written terms of such waiver. Borrower waives presentment, protest and demand, notice of protest, demand and dishonor; and any and all othernotices or matters of a like nature. 12. Usurv. All agreements between the Borrower and the Lender are expressly limited, so that in no event or contingency, whether because of the advancement of the proceeds of this Revenue Anticipation Note, acceleration of maturity of the unpaid principal balance, or otherwise, shall the amount paid or agreed to be paid to the Lender for the use, forbearance, or retention of the money to be advanced under this Revenue Anticipation Note exceed the highest lawful rate permissible under applicable usury laws. 13. Successors and Assiens. The promises and agreements herein contained shall bind and inure to the benefit of, as applicable, the respective administrators, successors and assigns of the parties. Executed as ofthe date set forth above at San Bernardino, California. By: Approved as to Form: ((/vv,~ I Attorney ~/ P:\AgcndaslAgcnda AUacllmenls\Agenda Allacllmcnls\Agcnda AuachmcntslAgrmtg-Amcnd 2009\08-]7.09 EDA Budget FY 09-10 Revenue Anticipation Note_doc CDC/2009-47 INTERIM LOAN AGREEMENT THIS INTERIM LOAN AGREEMENT. (this "Agreement") is entere nto as of this l7'h day of August, 2009, by and between the City of San Bernardino, a ch r city, organized under the Constitution and laws of the State of California (the "Borrower" r the "City"), and the Redevelopment Agency of the City of San Bernardino, a public body orporate and politic (the "Lender" or the "Agency"). In this Agreement, any reference a "Party" shall mean either the Borrower or the Lender and any reference to the "Partie shall collectively mean both the Borrower and the Lender. RECITALS WHEREAS, the Borrower desires to borrow funds porn the Lender in accordance with and pursuant to !his Agreement and the Revenue Anticipa~n Note (as defined below); and / WHEREAS, the Borrower is of the reasonabje understanding that adequate financial resources will be made available to repay the finan)llal obligations incurred by the Borrower pursuant to this Agreement within the current fiscal )!far of the Borrower, and the Borrower does not intend to seek to have the financial obligations of this Agreement and the Revenue Anticipation Note forgiven or otherwise compromised to the financial detriment of the Lender; and ! . WHEREAS, the Borrower recognize~ that any extensions of time for performance hereunder or any other modifications to the .terms of this Agreement will require the official action of the governing body of the Agency which may be taken or deferred at its sole and absolute discretion; and WHEREAS, the Parties intend that this Agreement and the Revenue Anticipation Note be deemed for all purposes to be a legally enforceable contractual obligation between the Parties in full compliance with the City Charter and all other applicable provisions of California law with respect to the City and the limitations on the incurring of long-term debt obligations and in full compliance with all requirements of the Community Redevelopment Law ("CRL") with respect to the Agency for the use and investment of tax increment revenues of the Agency pending the final disposition or ultimate use of such assets of the Agency in furtherance of its redevelopment purposes and in compliance with theCRL; and WHEREAS, the Lender ctesires to make one (1) or more principal advances to the Borrower in accordance with and pursuant to this Agreement and the Revenue Anticipation , Note. ! NOW, THEREFORE, in;consideration of the above recitals of this Agreement, and for such other good and valuable 90nsideration the receipt and sufficiency of which are hereby acknowledged, the Parties heretd agree as follows: I P:\Ag~ndas\Agenda Attachmenls\Ag1!nda AtlachmentslAgenda Attacl!ments\Agrmts-Alfle.nd 2009\08-17_09 EDA Budget FY 09-]0 Interim Loan Agreemenl.doc CDC/2009-47 1. The Loan. The Lender shall loan to the Borrower a principal amount not to exceed One Million Three Hundred Ten Thousand Dollars ($1,310,000), in the aggrega (the "Loan"), as evidenced by the Revenue Anticipation Note, dated concurrently herewi ,as executed by the Borrower in favor of the Lender (the "Revenue Anticipation Note" or t "Note"). The Lender shall make one (1) or more advances of principal to the Borrower in e principal amount not to exceed One Million Three Hundred Ten Thousand Dollars ($1 10,000), in the aggregate, subject to the terms, covenants and conditions of the Revenue Anticipation Note and this Agreement. The Loan is not a revolving loan, and any amdunt of the Loan repaid by the Borrower to the Lender may not be re-borrowed by the Borrrer. Upon three (3) business days' prior written notice from the Borrower to the Lender, the J"ender shall disburse to the Borrower the requested advance under the Revenue Anticipation Npte. The Revenue Anticipation Note is attached hereto and incorporated herein by this referencJ/as Exhibit "A." , ' 2. Interest. / Interest shall accrue and compoun/dailY at the per annum interest rate of 1.75% (the "Interest Rate") on the unpaid principal ba~:e of each Loan advance made by the Lender to the Borrower commencing on the date of each disbursement of a Loan advance by the Lender to the Borrower until paid in full by the BOn;bwer to the Lender, in accordance with and subject to the terms, covenants and conditions of e Revenue Anticipation Note and this Agreement. Interest shall be calculated on the actual n ber of days in a year equal to either 365 or 366 days and such calculation of interest shall be ompounded on a daily basis while any amount of the Indebtedness remains unpaid and outst ding. In the Event of a Default (as defined in Section 7 of this Agreement), interest shall accrpe at the Default Interest Rate (as defined in Section 4 of this Agreement) on the Indebtedne~~ (as defined in Section 4 of this Agreement) from the Maturity Date (as defined in sectii' 4 of this Agreement) until paid in full by the Borrower to the Lender. , 3. Prepayment. ; ! The unpaid pripcipal amount under the Revenue Anticipation Note may be prepaid by the Borrower to ty,e Lender, at any time, in whole or in part, without premium or penalty, prior to the Maturity! Date together with accrued and unpaid interest to the date of any such prepayment.' 4. Repavment ?f the Loan Principal and Interest. , i No periodi~ payments of either (i) principal and interest, or (ii) interest-only, are due and payable by the ~orrower to the Lender during the term of the Revenue Anticipation Note. On June 30, 201O!(the "Maturity Date"), the Borrower shall pay to the Lender the unpaid principal amount advanqed by the Lender to the Borrower under the Revenue Anticipation Note, and all accrued and un~! aid interest at the Interest Rate accruing from the date of the Revenue Anticipation Note on t unpaid principal amount advanced by the Lender to the Borrower under the Revenue Anticipaf n Note, and any other amounts due under the Revenue Anticipation Note and this Agreement, including, without limitation, attorneys' fees and court costs (collectively, 2 P\AgendaslAgenda Anacllments\Agenda Al1achmenlslAgenda Atlachmenls\Agrmts-AroeJ.ld 2009\08-] 7-09 EDA Budget FY 09_1 0 Interim Loan Ag=mem_doc CDC/2009-47 the "Indebtedness"). If the Borrower fails to pay the Indebtedness to the Lender on the Maturity Date, the Borrower shall pay to the Lender, on written demand from the Lender, a late charge in the amount of three percent (3%) of the unpaid principal amount of the Loan. Further, without notice or demand from the Lender to the Borrower, interest shall accrue on the Indebtedness at the rate of the Interest Rate plus two (2) percentage points (Le., two hundred (200) basis points) (the "Default Interest Rate") from the Maturity Date until the Indebtedness is paid by the Borrower to the Lender in full, should the Borrower fail or refuse to pay to the Lender the Indebtedness due on the Maturity Date. The Lender shall charge the Borrower no origination points or loan fees in connection with the making of the Loan by the Lender to the orrower. 5. No Securitv: Borrower Payment Covenant. The Loan is not secured by the pledge of, the assig t of, or the granting of any security interest in, the assets, funds, revenues or properties of e Borrower. Further, the obligations of thf Borrower under the Revenue Anticipation Note d under this Agreement are not guaranteed by any entity or individual. The Borrower reby agrees and covenants to appropriate funds to permit the Borrower to pay to the Lende he Indebtedness on or before the Maturity Date. The Borrower represents, warrants covenants to the Lender, as follows: 6. Re resentations Warranties and Coven (a) The Borrower is a charteI;,6ity, has been duly organized under the laws and Constitution of the State of California andfhas the power and authority to enter into this Agreement and to incur the obligations unde(the Revenue Anticipation Note. / I (b) The execution of Jliis Agreement and of the Revenue Anticipation Note has been duly authorized by the Mayorftnd Common Council of the City of San Bernardino as the legislative body of the Borrower ill such execution does not require the approval or consent of any other governmental entity. : , . (c) No gove~ntal or regulatory approvals that have not been previously obtained by the Borrower are r~uired for the due approval, execution and delivery by the Borrower of this Agreement and ,M the Revenue Anticipation Note. (d) This Agveement and the Revenue Anticipation Note have been, and will be, duly executed and deli~red by the Borrower and this Agreement and the Revenue Anticipation Note do, and wiJ,l, constitute valid and binding obligations of the Borrower, payable from the revenues, funds ani! assets, generally, of the Borrower as set forth herein and in the Revenue Anticipation Note. . (e) TheiBorrower shall deliver to the Lender, within thirty (30) calendar days after receipt by the Borrqwer of written request from the Lender, audit statements and budgets, financial statements angjor such any other information, studies and reports (singularly and collectively, the "Reports") requested by the Lender, as prepared by the Borrower at its sole cost and expense, which Reports shall be reasonably acceptable to the Lender. 3 P'\AgendaslAgenda Altachmenl.\Agenda Anachment.IAgenda Anachments\Agnnts-Aqle!J.d 2009\08_17_09 EDA Budget FY 09.]0 Interim!.MIn Agreemenl.doc CDC/2009-47 (f) The representations, warranties and covenants of the Borrower contained in this Agreement and in the Recitals hereof shall be true and correct in all material respects on and as of the date that the Lender disburses each Loan advance under the Revenue Anticipation Note and under this Agreement (the "Funding Date"), with the same force and effect as though such representations, warranties and covenants had been made on and as of each such Funding Date. (g) On and as of each Funding Date, the Borrower shall not be in default under the Revenue Anticipation Note or under this Agreement. The Borrower all not, to the best of the Borrower's knowledge, contravene any provision of federal, state, unicipal or local law, statute, rule or regulation, as amended from time to time, and the Borr er shall not conflict or be inconsistent with or result in any breach of any terms, coven s or provisions of, or constitute a default under, or result in the creation or imposition of a . n pursuant to the terms of any loan agreement, credit agreement or any other agreement, c tract or instrument to which the Borrower is a party or by which the Borrower is bound 0 to which the Borrower may be subject. 7. Events of Default. .' / / . (a) Bv Lender. The following.shall constitute an event of default by the Lender: (i) the failure by the Lender to fund/the Loan in accordance with the Revenue Anticipation Note and this Agreement within t)rlrty (30) calendar days after the written request by the Borrower to the Lender, provided tl)e' Borrower is not in default under the Revenue Anticipation Note or this Agreement. (b) Bv Borrower. Ti;le failure by the Borrower to pay to the Lender the Indebtedness on or before the Maturity Date shall constitute an event of default by the Borrower. 8. Remedies. Upon a default by the Lender, the Borrower may seek appropriate legal, injunctive or equitable relief to 'enforce the obligations of the Lender under this Agreement. Upon a default by the Borrower, the Lender may institute any proceeding at law or in equity to enforce the obligations of the Borrower under the Revenue Anticipation Note and/or under this Agreement. In any action brought under this Agreement, the prevailing Party shall be entitled to reimbursement from the other Party of its costs and expenses (including, without limitation, reasonable attorneys' fees ahd court costs) in bringing such action. Reasonable attorneys' fees shall include, without limitation, the costs, salary and expenses of the City Attorney for the City, and members of his office in enforcing this Agreement and/or the Revenue Anticipation Note. 9. Assignment. The Lender shall be entitled to, and may assign this Agreement and the Revenue Anticipation Note and the Lender's right to receive the Indebtedness under the Revenue Anticipation Note and u~er this Agreement to any other entity or individual, without obtaining 4 P,\AgendasIAgenda Anachments\Agenda Auachmenls\Agenda Attachments\Agl1Ilts-A"lel!'l2009\OS-i7-09 EDA Budget FY 09_10 Interim Loan Agreement.doc CDC/2009-47 the prior consent from the Borrower. The Borrower shall not delegate its obligations under this Agreement and/or under the Revenue Anticipation Note, without the prior written consent of the Lender, which written consent may be given or withheld in the sole and absolute discretion of the Lender. 10. Term. This Agreement shall terminate upon the payment in full by the Borrower to the Lender of the Indebtedness. Notices shall be presented in person or by certified r registered United States mail, return receipt requested, postage prepaid, or by overnight ivery made by a nationally recognized delivery service to the addresses noted below. N Ice presented by United States mail shall be deemed effective the second business day r deposit with the United States Postal Service. This Section shall not prevent giving notic y personal service or telephonically verified fax transmission, which shall be deemed effect' e upon actual receipt of such personal service or telephonic verification. Either Party may 9Ilange their address for receipt of written notice by so notifYing the other Party in writing. / / / Redevelopient Agency of the City of San Bernardino 201 Nortj: "E" Street, Suite 301 San Be}'f1ardino, California 92401 Attel\lfon: Emil A. Marzullo, Interim Executive Director Ph<0e: (909) 663-1044 Fo/': (909) 888-9413 lily of San Bernardino ,ICity Hall I 300 North "0" Street, Sixth Floor / San Bernardino, California 92418 Attention: Charles McNeely, City Manager Phone: (909) 384-5122 Fax: (909) 5138 11. Notices. To Lender: To Borrower: I , I 12. Governing ulw: Jurisdiction. This Agreeplent shall be governed by the laws of the State of California, and in the event either Party see"s judicial relief or seeks to enforce or to interpret any provision of this Agreement and/or the RFenue Anticipation Note, such actions shall be filed in the Superior Court of San BernardiJ;io County, State of California, Main Branch, in the City of San Bernardino, California. P:lAgendas\Agenda Anachments\Agenda Attachmenl.IAgenda AttachmentslAgnnts-Al1)end 2009\08-17-09 EDA Budget FY 09-10 Interim Loan Agreement,doc 5 CDC/2009-47 13. Entire Agreement. This Agreement and the Revenue Anticipation Note constitute the entire agreement between the Parties and may not be l\IJlended without the prior written conse f the Parties hereto. This Agreement and the Revenue Anticipation Note superse all prior negotiations, discussions and previous agreements between the Parties conce' the subject matter herein and therein. The Parties intend this Agreement and the Revenue ticipation Note to be the final expression of their agreement with respect to the terms herei d a complete and exclusive statement of such terms. No modification, amendment or w . er of any term herein shall be binding unless executed in writing by the Parties hereto. 14. Amendment. This Agreement and the Revenue Anticipati Note may be amended and the times for performance hereunder and pursuant to the evenue Anticipation Note may be extended as deemed necessary by written instruments d approved and executed by the Parties hereto and thereto and approved by the respecti~e g eming bodies of the Parties. Any such amendments or modifications shall be valid, bindi and legally enforceable only if in written form and executed by the Parties hereto after the e have been duly approved and authorized for execution. / I 15. Severability. / i Each and every section of Jhis Agreement shall be construed as a separate and independent covenant and agreement. ;,'1f any term or provision of this Agreement or the application thereof shall be declared invJUid or unenforceable, the remainder of this Agreement, or the application of such term or proVision to circumstances other than those to which it is invalid or unenforceable, shall not bp affected thereby, and each term and provision of this Agreement shall be valid and enforceible to the extent permitted by law. , 16. No Waiver bv the tender. No waiver of any breach, default or failure of condition under the terms of the ~evenue Anticipation Note or under this Agreement shall be thereby implied from any failure .of the Lender to take, or any delay by the Lender in taking action with respect to such breach, default or failure or from any previous waiver of any similar or related breach, default or faihire; and a waiver of any term of the Revenue Anticipation Note or this Agreement must be mad1, in writing and shall be limited to the express written terms of such waiver. Borrower waives/presentment, protest and demand, notice of protest, demand and dishonor, and any and all other notices or matters of a like nature. 17. Successors and Assigns. The promises and agreements herein contained shall bind and inure to the benefit of, as applicable, the respective administrators, successors and assigns ofthe Parties. \ 6 P:\AgmdaslAgenda Anachmenl.\Agenda Anachmenls\Agenda Anachment.\Asrmls-Am~nt;l2009\08_17_09 EDA Budget FY 09.10 Interim Loan Agreement.doc CDCj2009-47 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date first written above. LENDER Redevelopment Agency of e City of San Bernardino a public body, corpora and politic Approved as to Form and Legal Content: \~~ Ag.;ncy nse / I / . I / / i /BORROWER , ,. ! City of San Bernardino, a charter city f i I / / i By: / I " , City Manager (SEAL) ATTEST: i By: City Clerk i Approved As To Form: By: City Attorney ! I,. 7 P:\AgendaslAgenda Attachmentsv..,"lmda AttachmentslAgenda AttachmentslAgrmts-Amend 2009\08_17-09 EDA Budget FY 09-10 Interim Loan Agreement_doc CDC/2009-47 EXHIBIT "A" REVENUE ANTICIPATION NOTE I ! l 8 P\Agcndas\Agenda AnachmenlS\Agenda Attachmenls\Agcnda Attachmenl'\Agnnt5-Am~nd 2009\OS.17.()9 EDA Budget FY 09.10 Interim Loan Agreementdoc CDC/2009-47 REVENUE ANTICIPATION NOTE $1,310,000 August 17,2009 FOR VALUE RECEIVED, the undersigned, the City of San Bernardino, a charter city organized under the laws of the State of California (the "Borrower" or the "City"), hereby promises to pay to the Redevelopment Agency of the City of San Bernardino, a public body corporate and politic (the "Lender" or the "Agency"), or to order, at the following address 20 orth "E" Street, Suite 30 I, San Bernardino, California 92401, or at such other place as the Le er, may from time to time designate by written notice to the Borrower, in lawful money of the lted States, the principal sum of One Million Three Hundred Ten Thousand Dollars ($1,310,0 , or such lesser amount of advances as shall be made by the Lender to the Borrower, with i rest in accordance with this Revenue Anticipation Note on the unpaid principal balance om the date of this Revenue Anticipation Note, and all other amounts due under this Reven Anticipation Note, until paid in full by the Borrower to the Lender. The obligation of the Bo wer with respect to this Note is also governed by the interim loan agreement, as executed by d between the Borrower and the Lender concurrently herewith (the "Interim Loan Agreement" . 1. Princinal Advances. This Revenue Anycipation Note (this "Note" or this "Revenue Anticipation Note") evidences the obljgation of the Borrower to the Lender for the repayment of the loan (the "Loan") m~ by the Borrower to the Lender under this Revenue Anticipation Note and under the Intevro Loan Agreement. The Lender may make one (I) or more advances of principal to thoiBorrower in the principal amount not to exceed One Million Three Hundred Ten Thou/and Dollars ($1,310,000), in the aggregate, subject to the , terms, covenants and condition,. of this Revenue Anticipation Note and the Interim Loan Agreement. The Loan is not 'revolving loan, and any amount of the Loan repaid by the Borrower to the Lender may ot be re-borrowed by the Borrower. Upon three (3) business days' prior written notice m the Borrower to the Lender, the Lender shall disburse to the Borrower the requested a vance under this Revenue Anticipation Note. 2. Interest. Interest shall ccrue and compound daily at the per annum intere~t rate of 1.75% (the "Interest Rate") 9n the unpaid principal balance of each Loan advance made by the Lender to the Borro~r commencing on the date of each disbursement of a Loan advance by the Lender to the B~rrower until paid in full by the Borrower to the Lender, in accordance with and subject t<(the terms, covenants and conditions of this Revenue Anticipation Note and the Interim L~an Agreement. In the Event of a Default (as defined in Section 5) under this Revenue Anticipation Note, interest shall accrue at the Default Interest Rate (as defined in Section 4) on the Indebtedness (as defined in Section 4) from the Maturity Date until paid in full by the Borrower to the Lender. 3. PrenavmentfThe unpaid principal amount under this Revenue Anticipation Note may be prepaid by th~ Borrower to the Lender, at any time, in whole or in part, without premium or penalty, prior to the Maturity Date. j 4. Renavmen~ of Loan Princinal and Interest. No periodic payments of either (i) principal and interest, or (ii) interest-only, are due and payable by the Borrower to the Lender during P:\AgendasIAgeooa Alt8Cbmenls\Agenda Anachmellls\Agenda A118Chments\Agrmts-Amend 2009\0&-17-09 EDA Budget FY 09-10 Revenue Anticipalicn Note.doc 9. CDC/2009-47 the term of this Revenue Anticipation Note. On June 30, 2010 (the "Maturity Date"), the Borrower shall pay to the Lender the unpaid principal amount advanced by the Lender to the Borrower under this Revenue Anticipation Note; and all accrued and unpaid interest at the Interest Rate accruing from the date of this Revenue Anticipation Note on the unpaid principal amount advanced by the Lendeno the Borrower under this Revenue Anticipation Note, and any other amounts due under this Revenue Anticipation Note and the Interim Loan Agreement, including, without limitation attorneys' fees and court costs (collectively, the "Indebtedness"). If the Borrower fails to pay the Indebtedness to the Lender on the Maturity Date, the Borrower shall pay to the Lender, on written demand from the Lender, a late charge in the amount of three percent (3%) of the unpaid principal amount of the Loan. Further, without notice or demand from the Lender to the Borrower, interest shall accrue on the Indebtedness at the rate of the Interest Rate plus two (2) percentage points (i.e., two hundred (200) basis points) (the "Default Interest Rate") from the Maturity Date until the Indebtedness is paid by the Borrower to the Lender in full, should the Borrower fail or refuse to pay to the Lender the Indebtedness due on the Matudty Date. 5. , Acceleration of Payment. The Indebtedness of this Loan shall come immediately due and payable by the Borrower to the Lender, at the option of older and without demand or notice from the Lender to the Borrower, should the Bo wer fail to pay any amount due and payable under this Revenue Anticipation Note 0 nder the Interim Loan Agreement (and "Event of Default"). Upon the occurrence of Event of Default, the Lender shall be permitted to exercise and enforce all rights and edies available to the Lender, under this Revenue Anticipation Note, under this Inte' Loan Agreement, at law or in equity. 6. Aoolication ofPavments. All paymen received on account of this Revenue Anticipation Note shall first be applied to all atto s' fees, court costs and all other costs due under this Revenue Anticipation Note and un r the Interim Loan Agreement, then to all accrued and unpaid interest due under this R enue Anticipation Note, and then to the reduction of the unpaid principal amount. 7. Attornevs' Fees. The B~'ower hereby agrees to pay all costs and expenses, including reasonable attorneys' fees hich may be incurred by the Lender in the enforcement of this Revenue Anticipation N e. For purposes ofthis Revenue Anticipation Note, attorneys' fees shall include, without litfiitation, the costs, salary and expenses ofthe City Attorney for the City, and members of his office in enforcing this Revenue Anticipation Note. 8. Notices. Except as rftay be otherwise specified herein, any approval, notice, direction, consent, request or otl;/er action by the Lender shall be in writing and must be communicated to the Borrower at 300 North "0" Street, City Hall, Sixth Floor, San Bernardino, State of California, to the attention of the City Manager, or at such other place or places as the Borrower shall designate to the Lender in writing, from time to time, for the receipt of communications from the Lender. Mailed notices shall be deemed delivered and received five (5) working days after deposit in the United States mails in accordance with this prOV1SlOn. I Governinl! Law. This Revenue Anticipation Note shall be construed in accordance with and be governed by the laws of the State of California. P:\Agendas\Agenda Anachments\Agenda AnachmenlslAgenda Attachments\Agrml,.Amend 2009\08-17-09 EDA Budget FY 09-10 Revenue Anticipation Nmedoc 10. 11. CDC/2009-47 Severability. If any provision ofthis Revenue Anticipation Note shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby. 12. No Waiver bv the Lender. No waiver of any breach, default or failure of condition under the terms of this Revenue Anticipation Note or under the Interim Loan Agreement shall be thereby be implied from any failure of the Lender to take, or any dela}/bY the Lender in taking action with respect to such breach, default or failure or from apy previous waiver of any similar or related breach, default or failure; and a waiver of)lllY term of this Revenue Anticipation Note or the Interim Loan Agreement must be ~de in writing and shall be limited to the express written terms of such waiver. B~rro r waives presentment, protest and demand, notice of protest, demand and dishonor; and y and all other notices or matters of a like nature. USUry. All agreements between the Borrower a~ Lender are expressly limited, so that in no event or contingency, whether because/if the advancement of the proceeds of this Revenue Anticipation Note, acceleration of maturity of the unpaid principal balance, or otherwise, shall the amount paid or agreed to be paid to the Lender for the use, forbearance, or retention of the money to be advanceiunder this Revenue Anticipation Note exceed the highest lawful rate permissible underipplicable usury laws. Successors and Assiens. The p~6mises and agreements herein contained shall bind and inure to the benefit of, as applicable, the respective administrators, successors and assigns of the parties. . 13. Executed as of the datefset forth above at San Bernardino, California. City of San Bernardino By: City Manager Approved as to Form: City Attorney P:\AgendaslAgcnda AuachmentslAgenda AltachmenlslAgcnda Auachmcnls\Agrmts-Amcnd 2009\08.11-09 EDA Budge! FY 09-10 Revenue Anticipalion Note.doc