HomeMy WebLinkAboutR38- Economic Development CITY OF SAN BERNARDINO ORIGINAL
ECONOMIC DEVELOPMENT AGENCY
FROM: Emil A.Matzullo SUBJECT: CMB Infrastructure Investment Group V, L.P.
Interim Executive Director - Issuance by the Inland Valley Development
Agency of an $8,000,000 CMB Infrastructure
Investment Group Revenue Bond for the
DATE: September 20,2010 benefit of the Redevelopment Agency of the
City of San Bernardino
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Synopsis of Previous Commission/Council/Committee Action(s):
Recommended Motion(s):
(Community Development Commission)
Resolution of the Community Development Commission of the City of San Bernardino Authorizing That Certain
Loan Agreement and that certain Cooperation Agreement with the Inland Valley Development Agency in
Connection with the Issuance of the Inland Valley Development Agency Revenue Bond, Series 2010 (CMB
Infrastructure Investment Group V,LP-Agency Projects)and the Forms of Legal Documents Related Thereto
(Mayor and Common Council)
Resolution of the Mayor And Common Council of the City of San Bcmardino Approving the Borrowing by the
Redevelopment Agency of the City Of San Bernardino in Connection With the Issuance of the Inland Valley
Development Agency Revenue Bond, Series 2010 (CMB Infrastructure Investment Group V, LP - Agency
Projects)
Contact Person(s): Don Gee Phone: (909)663-1044
ProjectArea(s): All Ward(s): All
Supporting Data Attached: 0 Staff Report 0 Resolution(s)®Agreement(s)/Contract(s)O Map(s)O Letter(s)
Funding Requirements: Amount: $ -0- Source: N/A
Budget Authority: N/A/
Signature: CQL \ Fiscal Review: t (
Emil A.Marzullo,Interim Executive Director Lo amino-Tillery,Interim CfVf Financial
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Commission/Council Notes: L So o2 014) - 3.3/ R'NO L1J/7 3010 - 5--3
eus<w.a�ceoe.co ��cnc m�owv-xa�ocemme.,u,moes�...nAem c.wpv,vsaeoa COMMISSION MEETING AGENDA
Meeting Date: 09{20/20110
K
Agenda Item Number: -3 0 b
CITY OF SAN BERNARDINO
ECONOMIC DEVELOPMENT AGENCY
STAFF REPORT
CMB INFRASTRUCTURE INVESTMENT GROUP V,L.P.-ISSUANCE BY THE
INLAND VALLEY DEVELOPMENT AGENCY OF AN$8,000,000 CMB INFRASTRUCTURE
INVESTMENT GROUP REVENUE BOND FOR THE BENEFIT OF THE REDEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
BACKGROUND:
CMB Exports,LLC,("CMB")was formed in the mid-1990's to establish a"regional center"for the counties of San
Bernardino,Riverside, and Sacramento to assist in financings for the closed military bases in these counties. Since
October,2007,the Inland Valley Development Agency(the "IVDA") and the San Bernardino International Airport
Authority have executed several tax exempt promissory notes payable to various CMB Infrastructure Investment
Group limited partnerships for the financing of several projects within the IVDA Redevelopment Project Area. In
2009, the Redevelopment Agency of the City of San Bernardino(the"Agency")executed a similar note for certain
public improvements within the City of San Bernardino.
The Agency has planned to proceed with the redesign and reconstruction of public infrastructure located along
Inland Center Drive and "E" Street. Said improvements include landscaping, street lights, upgraded signal lights,
street improvements, upgrades to the entrances of the Inland Center Mall, improvements in connection with the
Omnitrans project for the sbX bus rapid-transit route,water lines, sewer lines,storm drain improvements,and other
improvements(the"Improvements").
For the past several years, Agency staff have reviewed various means to fund the Improvements and have now
determined that the IVDA can assist in the financing of the Improvements by the issuance of an EB-5 funded IVDA
tax exempt loan agreement(the"Bond")which will be purchased by CMB Infrastructure Investment Group V,LP.
CURRENT ISSUE:
The Bond will be issued by the IVDA as a conduit for the Agency. The proceeds of the Bond will be transferred to
the Agency and Agency revenues pledged under a Loan Agreement and Cooperation Agreement between the
Agency and the IVDA will secure the Bond. The Loan Agreement will evidence the pledge of surplus tax
increment revenues from the Southeast Industrial Project Area (collectively the "Agency Surplus Revenues") for
the repayment of the Bond and the Cooperation Agreement will provide a pledge of additional revenues as
necessary to support the repayment of the Bond and to fund the Improvements from the increased tax increment
revenues of the Inland Center Mall. The Southeast Industrial Project Area tax increment revenues will be used as
collected on until said time, if at all, that the Merger A adoption process has been completed. The Cooperation
Agreement will provide that as of the 2010-2011 fiscal year,tax increment revenues derived from the Inland Center
Mall (the "Inland Center Mall Revenues"), which are currently IVDA tax increment revenues, shall become
revenues attributed to the Agency under the Cooperation Agreement, and said revenues shall be pledged by the
Agency for the development of infrastructure related to the Inland Center Mall, the Improvements, and the
repayment of any financial obligations incurred as a result of said Improvements, including the Bond.
It is not anticipated that the full amount of the tax increment revenue derived from the Inland Center Mall will be
needed to repay the Bond. Excess Inland Center Mall Revenues will be applied to pay for the remainder of the
Improvements which were not financed by the Bond and Improvements financed by other sources.
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e\+s�kco=M co wonTW 201mas 10 coin 1n nre 1��m Group v,LP SR.do« COMMISSION MEETING AGENDA
Meeting Date: 09/20/2010
Agenda Item Number:
Economic Development Agency Staff Report
CMB Infrastructure Investment Group V, L.P.
Page 2
The terms of the proposed financing are as follows,subject to change in the final documents:
1. Interest Rate: 5.25%,tax-exempt.
2. Principal: $8,000,000.
3. Repayment: Interest only payable quarterly as shall be provided in the IVDA Indenture. Principal payable
at the 6-year maturity date. Repayment of principal will be accomplished with the proceeds of a long term
bond financing.
4. Security: Surplus tax increment revenues from the Southeast Industrial Project Area and Inland Center
Mall Revenues transferred from the IVDA to the Agency and pledged for the repayment of the Bond.
5. Closing Costs: No costs other than document preparation.
6. Closing Date: September,2010.
7. Funding: Increments of$500,000 will be advanced to the Agency as investors are obtained who submit the
proper documentation to the U.S. Citizenship and Immigration Service for approval; all funds should be
available to the Agency by mid-2011.
Additional information can be obtained on the CMB website at www.cmbeb5visa.com and it contains descriptions
and photographs of the other projects previously and currently being undertaken with CMB funds.
ENVIRONMENTAL IMPACT:
Prior to the commencement of construction of the Project,the Agency will obtain the necessary permits required to
proceed with said construction. This project is in the initial permit process at this time. The agenda action does not
require environmental action as the approvals contemplated do not meet the definition of a"project"under Section
15378 of the California Environmental Quality Act(CEQA).
FISCAL IMPACT:
The Bond would be interest only payable quarterly for a period of six years. The principal would be due in full in
six years. It is proposed that the Bond be refinanced at the six-year maturity date at which time the tax increment
revenues generated from the Project should be adequate to support repayment of long term bonds. Furthermore, if
the proposed redevelopment plan amendment proceeds and is approved, revenues from the amended project area
will be sufficient to support a long term bond issuance. There is no impact to the City's General Fund.
Account Budgeted Amount: $0.00 Balance as of September 15,201
Balance after approval of this item: $0.00
RECOMMENDATION:
That the Mayor and Common Council and Community Development Commission adopt the attached Resolutions.
Emil A. Marzullo, n enm Executive Director
P 1m..n,a.,V.v Skd«. COMMISSION MEETING AGENDA
Meeting Date: 09/20/2f0�10
Agenda Item Number: P—Z 0
1
RESOLUTION NO. Copy
2 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF
3 THE CITY OF SAN BERNARDINO AUTHORIZING THAT CERTAIN
LOAN AGREEMENT AND THAT CERTAIN COOPERATION
4 AGREEMENT WITH THE INLAND VALLEY DEVELOPMENT AGENCY
5 IN CONNECTION WITH THE ISSUANCE OF THE INLAND VALLEY
DEVELOPMENT AGENCY REVENUE BOND, SERIES 2010 (CMB
6 INFRASTRUCTURE INVESTMENT GROUP V, LP - AGENCY PROJECTS)
AND THE FORMS OF LEGAL DOCUMENTS RELATED THERETO
7
8 WHEREAS, the Community Development Commission of the City of San Bernardino (the
9 "Commission') is the governing body of the Redevelopment Agency of the City of San Bernardino
10 (the "Agency") and is authorized under Health and Safety Code Section 33000, et seq., to issue
11 bonds, notes and other obligations and enter into loan agreements for the purpose of financing
12 public capital improvements within the City of San Bernardino (the"City");and
13 WHEREAS, the Inland Valley Development Agency (the "IVDA") is a joint powers
14 authority organized under the laws of the State of California and is authorized pursuant to the
15 Community Redevelopment Law to issue bonds, notes and other obligations for the purpose of
16 financing public capital improvements; and
17 WHEREAS, the Agency desires to finance certain public infrastructure located along "E"
18 Street and Inland Center Drive within the City and located within the IVDA project area, namely,
19 the redesign and reconstruction of said streets, including but not limited to, landscaping, street
20 lights, upgraded signal lights, street improvements, upgrades to the entrances of the Inland Center
21 Mall, improvements in connection with the Omnitrans project for the sbX bus rapid-transit route,
22 water lines, sewer lines, storm drain improvements, and other improvements (the "Improvements,,);
23 and
24 WHEREAS, the Agency has requested that the IVDA assist the Agency with the financing
25 of the Improvements, and the IVDA desires to assist the Agency with said financing by the issuance
C26 of the Inland Valley Development Agency Revenue Bond, Series 2010 (CMB Infrastructure
27 Investment Group V, LP—Agency Projects) (the `Bond") in the principal amount of$8,000,000, as
28 evidenced by an Indenture and Loan Agreement dated as of September 1, 2010, by and among the
1
I IVDA, Agency and CMB Infrastructure Investment Group V, LP (the "Indenture"), and loan the
2 proceeds thereof to the Agency as provided in the Indenture; and
3 WHEREAS, CMB Infrastructure Investment Group V, LP, a California limited partnership,
4 organized in accordance with the requirements for regional centers as set forth under the United
5 States Immigration Act of 1990, as amended, has offered to purchase the Bond with capital raised
6 from foreign investors who seek to obtain permanent residency in the United States through the EB-
7 5 investor visa program under the United States Immigration and Nationality Act; and
8 WHEREAS, the Agency desires to pledge surplus tax increment revenues from the
9 Southeast Industrial Project Area (the "Agency Surplus Revenues") to the payment of the Bond for
10 the period of time as set forth in the Bond documents; and
11 WHEREAS, the Agency and the IVDA desire to enter into that certain Loan Agreement
12 dated as of September 1, 2010, by and between the Agency and the IVDA (the "Agency Loan
13 Agreement") to evidence the pledge of the Agency Surplus Revenues for the repayment of the
14 Bond, and under the Agency Loan Agreement the Agency authorizes the pledge of the Agency
15 Surplus Revenues to the repayment of the Bond; and
16 WHEREAS, the Agency and the IVDA have determined that in order to provide additional
17 revenues as necessary to support the repayment of the Bond and to fund the Improvements, as of the
18 2010-2011 fiscal year, tax increment revenues derived from the Inland Center Mall (the "Inland
19 Center Mall Revenues"), which are currently IVDA tax increment revenues, shall become revenues
20 attributed to the Agency, and said revenues shall be pledged by the Agency for the development of
21 the infrastructure related to the Inland Center Mall, the Improvements, and the repayment of any
22 financial obligations incurred as a result of said Improvements; and
23 WHEREAS, in order to evidence the transfer of the Inland Center Mall Revenues to the
24 Agency, the Agency and the IVDA desire to enter into that certain Cooperation Agreement dated as
25 of September 1, 2010, by and between the Agency and the IVDA (the "Cooperation Agreement');
26 and
27 WHEREAS, based upon the foregoing, the Agency desires to approve the financing as set
28 forth above.
2
1 NOW, THEREFORE, IT IS HEREBY RESOLVED, DETERMINED AND ORDERED BY
2 THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO,
3 AS FOLLOWS:
4 Section 1. Approval of the Issuance of the Bond. The Agency hereby approves the
5 issuance of the Bond by the IVDA in the amount not to exceed $8,000,000. The proposed term of
6 the Bond shall be six (6) years at a rate of interest not to exceed 5.25%. Interest on the Bond shall
7 be paid quarterly until maturity, and principal shall be paid in full on or before the maturity date.
8 The proceeds of the Bond shall be transferred to the Agency under the Indenture and shall be
9 applied by the Agency to fund the Improvements. The security for the Bond shall be the Agency
10 Surplus Revenues and the Inland Center Mall Revenues.
11 Section 2. Approval of the Terms of the Indenture, Agency Loan Agreement and
12 Cooperation Agreement. The Agency hereby approves the Indenture,Agency Loan Agreement and
13 Cooperation Agreement (collectively, the "Agreements") in the forms presently on file with the
14 Secretary of the Agency with such changes thereto as may be approved by the Chairman or the
15 Executive Director of the Agency when such terms and conditions have been ascertained. The
16 Agency hereby further authorizes and directs that the forms of the Agreements presently on file with
17 the Secretary be converted into the final forms thereof together with such changes or modifications
18 as deemed necessary or desirable by the Chairman or Executive Director of the Agency, upon the
19 recommendation of Lewis Brisbois Bisgaard & Smith LLP ("Bond Counsel'). The Chairman,
20 Executive Director or such other authorized officer of the Agency are hereby authorized and
21 directed to execute and deliver, and the Secretary is hereby authorized and directed to attest to, the
22 final forms of the Agreements when the same has been prepared for and in the name of the Agency,
23 and such execution and delivery shall be deemed to be conclusive evidence of the approval thereof.
24 The Agency hereby authorizes the delivery and performance of the obligations under the
25 Agreements to accomplish the financing as contemplated herein.
26 Section 3. Findings of Benefit. The Agency hereby finds and determines pursuant to the
w 27 California Health and Safety Code that the use of the tax increment revenues from the Southeast
28 Industrial Project Area for the funding of the Improvements and the payment of the Bond will be of
3
1 benefit to the Southeast Industrial Project Area. Such additional actions shall be taken by the
2 Agency at a later date as necessary upon the expenditure of the proceeds of the Bond
3 Section 4. Official Action. The Chairman, Executive Director, Secretary, Bond Counsel
4 and any and all other officers of the Agency are hereby authorized and directed, for and in the name
5 and on behalf of the Agency, to do any and all things and take any and all actions, including
6 execution and delivery of any and all assignments, certificates, requisitions, agreements, notices,
7 consents, instruments of conveyance, warrants and other documents, which they, or any of them,
8 may deem necessary or advisable in order to consummate the financing as described herein.
9 Whenever in this Resolution any officer of the Agency is authorized to execute or countersign any
10 document or take any action, such execution, countersigning or action may be taken on behalf of
11 such officer by any person designated by such officer to act on his or her behalf in the case such
12 officer shall be absent or unavailable. The Agency hereby appoints its Chairman and Executive
13 Director as agents of the Agency for purposes of executing any and all documents and instruments
14 which any officer of the Agency is authorized to execute hereunder.
15 Section 5. Effective Date. This Resolution shall become effective immediately upon
16 adoption..
17
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21
22
23
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26
O27 /1/
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4
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF
1
THE CITY OF SAN BERNARDINO AUTHORIZING THAT CERTAIN
2 LOAN AGREEMENT AND THAT CERTAIN COOPERATION
AGREEMENT WITH THE INLAND VALLEY DEVELOPMENT AGENCY
3 IN CONNECTION WITH THE ISSUANCE OF THE INLAND VALLEY
DEVELOPMENT AGENCY REVENUE BOND, SERIES 2010 (CMB
4 INFRASTRUCTURE INVESTMENT GROUP V, LP - AGENCY PROJECTS)
5 AND THE FORMS OF LEGAL DOCUMENTS RELATED THERETO
6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community
7 Development Commission of the City of San Bernardino at a meeting
8 thereof, held on the day of 2010,by the following vote to wit:
9 Commission Members: Ayes Nays Abstain Absent
10 MARQUEZ
11 DESJARDINS _
12 BRINKER
13 SHORETT
14 KELLEY _
15 JOHNSON
16 MC CAMMACK _
17
18 Secretary
19
20 The foregoing Resolution is hereby approved this day of 2010.
21
22
Patrick J. Morris, Chairperson
23 Community Development Commission
24 of the City of San Bernardino
25 Approved as to Form:
26
By:
27 Agency C#nsel
28
5
mark sd
1 RESOLUTION NO. �
2
3 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF
THE CITY OF SAN BERNARDINO AUTHORIZING THAT CERTAIN
4 LOAN AGREEMENT AND THAT CERTAIN COOPERATION
AGREEMENT WITH THE INLAND VALLEY DEVELOPMENT AGENCY
5 IN CONNECTION WITH THE ISSUANCE OF THE INLAND VALLEY
6 DEVELOPMENT AGENCY REVENUE BOND, SERIES 2010 (CMB
INFRASTRUCTURE INVESTMENT GROUP V, LP - AGENCY PROJECTS)
7 AND THE FORMS OF LEGAL DOCUMENTS RELATED THERETO
8
9 WHEREAS, the Community Development Commission of the City of San Bernardino (the
10 "Commission") is the governing body of the Redevelopment Agency of the City of San Bernardino
11 (the "Agency") and is authorized under Health and Safety Code Section 33000, et seq., to issue
12 bonds, notes and other obligations and enter into loan agreements for the purpose of financing
13 public capital improvements within the City of San Bernardino (the"City"); and
14 WHEREAS, the Inland Valley Development Agency (the "IVDA") is a joint powers
15 authority organized under the laws of the State of California and is authorized pursuant to the
16 Community Redevelopment Law to issue bonds, notes and other obligations for the purpose of
17 financing public capital improvements; and
18 WHEREAS, the Agency desires to finance certain public infrastructure located along "E"
19 Street and Inland Center Drive within the City and located within the IVDA project area, namely,
20 the redesign and reconstruction of said streets, including but not limited to, landscaping, street
21 lights, upgraded signal lights, street improvements, upgrades to the entrances of the Inland Center
22 Mall, improvements in connection with the Omnitrans project for the sbX bus rapid-transit route,
23 water lines, sewer lines, storm drain improvements, and other improvements (the "Improvements");
24 and
25 WHEREAS, the Agency has requested that the IVDA assist the Agency with the financing
26 of the Improvements, and the IVDA desires to assist the Agency with said financing by the issuance
27 of the Inland Valley Development Agency Revenue Bond, Series 2010 (CMB Infrastructure
28 Investment Group V, LP—Agency Projects) (the `Bond") in the principal amount of$8,00�0,,�000, as
P USeMUVtme tionsVfe,olutionsWIM-30.100 lnhe&ry mlmWm Crt V.U CpC Re,o.EOC I '
I evidenced by an Indenture and Loan Agreement dated as of September 1, 2010, by and among the
2 IVDA, Agency and CMB Infrastructure Investment Group V, LP (the "Indenture"), and loan the
3 proceeds thereof to the Agency as provided in the Indenture; and
4 WHEREAS, CMB Infrastructure Investment Group V, LP, a California limited partnership,
5 organized in accordance with the requirements for regional centers as set forth under the United
6 States Immigration Act of 1990, as amended, has offered to purchase the Bond with capital raised
7 from foreign investors who seek to obtain permanent residency in the United States through the EB-
8 5 investor visa program under the United States Immigration and Nationality Act; and
9 WHEREAS, the Agency desires to pledge surplus tax increment revenues from the
10 Southeast Industrial Park Redevelopment Project Area (the "Agency Surplus Revenues") to the
11 payment of the Bond for the period of time as set forth in the Bond documents; and
12 WHEREAS, the Agency and the IVDA desire to enter into that certain Loan Agreement
13 dated as of September 1, 2010, by and between the Agency and the IVDA (the "Agency Loan
14 Agreement") to evidence the pledge of the Agency Surplus Revenues for the repayment of the
15 Bond, and under the Agency Loan Agreement the Agency authorizes the pledge of the Agency
16 Surplus Revenues to the repayment of the Bond;and
17 WHEREAS, the Agency and the IVDA have determined that in order to provide additional
18 revenues as necessary to support the repayment of the Bond and to fund the Improvements, as of the
19 2010-2011 fiscal year, tax increment revenues derived from the Inland Center Mall (the "Inland
20 Center Mall Revenues"), which are currently IVDA tax increment revenues, shall become revenues
21 attributed to the Agency, and said revenues shall be pledged by the Agency for the development of
22 the infrastructure related to the Inland Center Mall, the Improvements, and the repayment of any
23 financial obligations incurred as a result of said Improvements; and
24 WHEREAS, in order to evidence the transfer of the Inland Center Mall Revenues to the
25 Agency, the Agency and the IVDA desire to enter into that certain Cooperation Agreement dated as
26 of September 1, 2010, by and between the Agency and the IVDA (the "Cooperation Agreement'
27 and
28 WHEREAS, based upon the foregoing, the Agency desires to approve the financing as set
2
PUgenaas%mMtio=U 9oWtwn=IMAp-20.10 CM1 NfieclvMrclm=rt Group V.U CDC Reo.doc
1 forth above.
2 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE
3 CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS
4 FOLLOWS:
5 Section 1. Approval of the Issuance of the Bond. The Agency hereby approves the issuance
6 of the Bond by the IVDA in the amount not to exceed $8,000,000. The proposed term of the Bond
7 shall be six (6) years at a rate of interest not to exceed 5.25%. Interest on the Bond shall be paid
8 quarterly until maturity, and principal shall be paid in full on or before the maturity date. The
9 proceeds of the Bond shall be transferred to the Agency under the Indenture and shall be applied by
10 the Agency to fund the Improvements. The security for the Bond shall be the Agency Surplus
11 Revenues and the Inland Center Mall Revenues.
12 Section 2. Approval of the Terms of the Indenture Agency Loan Agreement and
13 Cooperation Agreement. The Agency hereby approves the Indenture, Agency Loan Agreement and
14 Cooperation Agreement (collectively, the "Agreements") in the forms presently on file with the
15 Secretary of the Agency with such changes thereto as may be approved by the Chairman or the
16 Executive Director of the Agency when such terms and conditions have been ascertained. The
17 Agency hereby fiuther authorizes and directs that the forms of the Agreements presently on file with
18 the Secretary be converted into the final forms thereof together with such changes or modifications
19 as deemed necessary or desirable by the Chairman or Executive Director of the Agency, upon the
20 recommendation of Lewis Brisbois Bisgaard & Smith LLP ("Bond Counsel"). The Chairman,
21 Executive Director or such other authorized officer of the Agency are hereby authorized and
22 directed to execute and deliver, and the Secretary is hereby authorized and directed to attest to, the
23 final forms of the Agreements when the same has been prepared for and in the name of the Agency,
24 and such execution and delivery shall be deemed to be conclusive evidence of the approval thereof.
25 The Agency hereby authorizes the delivery and performance of the obligations under the
26 Agreements to accomplish the financing as contemplated herein.
27 Section 3. Findings of Benefit. The Agency hereby finds and determines pursuant to the
28 California Health & Safety Code Section 33445.1 that the use of the tax increment revenues from
3
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I the Southeast Industrial Park Redevelopment Project Area for the funding of the Improvements and
2 the payment of the Bond will be of benefit to the Southeast Industrial Park Redevelopment Project
3 Area which is noncontiguous to the area wherein the Improvements shall be constructed. The
4 Agency hereby finds and determines pursuant to said Health & Safety Code Section 33445.1 as
5 follows:
OOM(1) that such buildings, facilities, structures or other improvements are of primary benefit to
7 the Southeast Industrial Park Redevelopment Project Area or the immediate neighborhood in which
8 the Improvements are located, regardless of whether such Improvements are within another project
9 area; (2) that no other reasonable means of financing such buildings, facilities, structures or other
0 improvements is available to the community, and such determination by the Commission and the
1 Council shall be final and conclusive; (3) that the payment of funds for the cost of the facilities,
2 structures or other improvements will assist in the elimination of one (1) or more blighted conditions
3 inside the Southeast Industrial Park Redevelopment Project Area; (4) that the payment of funds for
4 the cost of the buildings, facilities, structures or other improvements is consistent with the
5 Implementation Plan adopted pursuant to Health and Safety Code Section 33490; and (5) that the
6 installation of each building, facility, structure, or improvement is provided for in the
7 Redevelopment Plan. 4M]
Section 4. Official Action. The Chairman, Executive Director, Secretary, Bond Counsel
19 and any and all other officers of the Agency are hereby authorized and directed, for and in the name
20 and on behalf of the Agency, to do any and all things and take any and all actions, including
21 execution and delivery of any and all assignments, certificates, requisitions, agreements, notices,
22 consents, instruments of conveyance, warrants and other documents, which they, or any of them,
23 may deem necessary or advisable in order to consummate the financing as described herein.
24 Whenever in this Resolution any officer of the Agency is authorized to execute or countersign any
25 document or take any action, such execution, countersigning or action may be taken on behalf of
26 such officer by any person designated by such officer to act on his or her behalf in the case such
27 officer shall be absent or unavailable. The Agency hereby appoints its Chairman and Executive
28 Director as agents of the Agency for purposes of executing any and all documents and instruments
4
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I which any officer of the Agency is authorized to execute hereunder.
2 Section 5. Effective Date. This Resolution shall become effective immediately upon
3 adoption.
4
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I RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF
THE CITY OF SAN BERNARDINO AUTHORIZING THAT CERTAIN
2 LOAN AGREEMENT AND THAT CERTAIN COOPERATION
3 AGREEMENT WITH THE INLAND VALLEY DEVELOPMENT AGENCY
IN CONNECTION WITH THE ISSUANCE OF THE INLAND VALLEY
4 DEVELOPMENT AGENCY REVENUE BOND, SERIES 2010 (CMB
INFRASTRUCTURE INVESTMENT GROUP V, LP - AGENCY PROJECTS)
5 AND THE FORMS OF LEGAL DOCUMENTS RELATED THERETO
6
7 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community
8 Development Commission of the City of San Bernardino at a meeting
9 thereof,held on the day of 2010,by the following vote to wit:
10 Commission Members: Ayes Nays Abstain Absent
11 MARQUEZ —
12 DESJARDINS
13 —
BRINKER
14
SHORETT
—
KELLEY —
15
JOHNSON
16 MC CAMMACK
17
18
19 Secretary
20
21 The foregoing Resolution is hereby approved this day of 12010.
22
23 Patrick J. Moms, Chairperson
Community Development Commission
24 of the City of San Bernardino
25 Approved as to Form:
26
27 BY:
gency m 1
28
6
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M
I RESOLUTION NO. W;r
g
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO APPROVING THE BORROWING BY THE
3 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO IN
4 CONNECTION WITH THE ISSUANCE OF THE INLAND VALLEY
DEVELOPMENT AGENCY REVENUE BOND, SERIES 2010 (CMB
5 INFRASTRUCTURE INVESTMENT GROUP V, LP - AGENCY
PROJECTS)
6
7 WHEREAS, the City of San Bernardino, California (the "City") is a municipal corporation
g and charter city, duly organized and existing pursuant to the provisions of the constitution of the
9 State of California; and
10 WHEREAS, the Community Development Commission of the City of San Bernardino (the
11 "Commission") is the governing body of the Redevelopment Agency of the City of San Bernardino
12 (the "Agency") and is authorized under Health and Safety Code Section 33000, et seq., to issue
13 bonds, notes and other obligations and enter into loan agreements for the purpose of financing
14 public capital improvements within the City; and
15 WHEREAS, the Inland Valley Development Agency (the "IVDA") is a joint powers
16 authority organized under the laws of the State of California and is authorized pursuant to the
17 Community Redevelopment Law to issue bonds, notes and other obligations for the purpose of
18 financing public capital improvements; and
19 WHEREAS, the Agency desires to finance certain public infrastructure located along "E"
20 Street and Inland Center Drive within the City and located within the IVDA project area, namely,
21 the redesign and reconstruction of said streets, including but not limited to, landscaping, street
22 lights, upgraded signal lights, street improvements, upgrades to the entrances of the Inland Center
23 Mall, improvements in connection with the Omnitrans project for the sbX bus rapid-transit route,
24 water lines, sewer lines, storm drain improvements, and other improvements (the "Improvements");
25 and
26 WHEREAS, the Agency has requested that the IVDA assist the Agency with the financing
27 of the Improvements, and the IVDA desires to assist the Agency with said financing by the issuance
28 of the Inland Valley Development Agency Revenue Bond, Series 2010 (CMB Infrastructure
1 R�
I Investment Group V, LP—Agency Projects) (the "Bond") in the principal amount of$8,000,000, as
2 evidenced by an Indenture and Loan Agreement dated as of September 1, 2010, by and among the
3 IVDA, Agency and CMB Infrastructure Investment Group V, LP (the "Indenture"), and loan the
4 proceeds thereof to the Agency as provided in the Indenture; and
5 WHEREAS, CMB Infrastructure Investment Group V, LP, a California limited partnership,
6 organized in accordance with the requirements for regional centers as set forth under the United
7 States Immigration Act of 1990, as amended, has offered to purchase the Bond with capital raised
8 from foreign investors who seek to obtain permanent residency in the United States through the EB-
9 5 investor visa program under the United States Immigration and Nationality Act; and
10 WHEREAS, the Agency desires to pledge surplus tax increment revenues from the
11 Southeast Industrial Park Redevelopment Project Area (the "Agency Surplus Revenues") to the
12 payment of the Bond until such time as the Merger As has been formally adopted; and
13 WHEREAS, the Agency and the IVDA desire to enter into that certain Loan Agreement
14 dated as of September 1, 2010, by and between the Agency and the IVDA (the "Agency Loan
15 Agreement") to evidence the pledge of the Agency Surplus Revenues for the repayment of the
16 Bond, and under the Agency Loan Agreement the Agency authorizes the pledge of the Agency
17 Surplus Revenues to the repayment of the Bond; and
18 WHEREAS, the Agency and the IVDA have determined that in order to provide additional
19 revenues as necessary to support the repayment of the Bond and to fund the Improvements, as of the
20 2010-2011 fiscal year, tax increment revenues derived from the Inland Center Mall (the "Inland
21 Center Mall Revenues"), which are currently IVDA tax increment revenues, shall become revenues
22 attributed to the Agency, and said revenues shall be pledged by the Agency for the development of
23 the Inland Center Mall, the Improvements, and the repayment of any financial obligations incurred
24 as a result of said Improvements;and
25 WHEREAS, in order to evidence the transfer of the Inland Center Mall Revenues to the
26 Agency, the Agency and the IVDA desire to enter into that certain Cooperation Agreement dated as
27 of September 1, 2010, by and between the Agency and the IVDA (the "Cooperation Agreement");
28 and
2
1 WHEREAS, based upon the foregoing and, the City desires to approve the financing as set
2 forth above; and
3 WHEREAS, the Mayor and Common Council have duly considered the terms of such
4 transactions as contemplated herein and find that approval of the issuance of the Bond is in the best
5 interests of the City.
6 NOW, THEREFORE, IT IS HEREBY RESOLVED, DETERMINED AND ORDERED
7 BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO, AS
8 FOLLOWS:
9 Section 1. Approval of the Bond. The Mayor and Common Council hereby approve the
10 issuance of the Bond by the IVDA for the benefit of the Agency in the amount not to exceed
11 $8,000,000. The proposed term of the Bond shall be six (6) years at a rate of interest not to exceed
12 5.25%.
13 Section 2. Official Action. The Mayor and Common Council, the City Clerk and any and
14 all other officers of the City are hereby authorized and directed, on behalf of the City, to do any and
15 all things and to take any and all actions, including execution and delivery of assignments,
16 certificates, requisitions, agreements, notices, consents, instruments of conveyance, warrants, Bond
17 closing documents and other documents which any of such officers may deem necessary or
18 advisable in connection with the execution and delivery of the Bond, and the borrowing by the
19 Agency of the proceeds derived therefrom and the consummation of the transactions described
20 herein and therein. The Mayor and Common Council hereby consent to the funding of the public
21 improvements identified by Resolution of the Community Development Commission of the City of
22 San Bernardino with regard to the use of the tax increment revenues of the Southeast Industrial Park
23 Redevelopment Project Area for the repayment of the Bond as required pursuant to Health & Safety
24 Code Section 33445.1 for public improvements which are contiguous to a redevelopment project
25 area.
26 The Mayor and Common Council further find and determines as follows, as required by
27 Health& Safety Code Section 33445.1:
28
3
(1) that such buildings, facilities, structures or other improvements are of primary benefit to
2 the Southeast Industrial Park Redevelopment Project Area or the immediate neighborhood in which
i
the Improvements are located, regardless of whether such Improvements are within another project
4 area; (2) that no other reasonable means of financing such buildings, facilities, structures or other
5 improvements is available to the community, and such determination by the Commission and the
6 Council shall be final and conclusive; (3) that the payment of funds for the cost of the facilities,
7 structures or other improvements will assist in the elimination of one (1) or more blighted conditions
8 inside the Southeast Industrial Park Redevelopment Project Area; (4) that the payment of funds for
9 the cost of the buildings, facilities, structures or other improvements is consistent with the
10 Implementation Plan adopted pursuant to Health and Safety Code Section 33490; and (5) that the
11 installation of each building, facility, structure, or improvement is provided for in the
12 Redevelopment Plan.
13 Section 3. Effective Date. This Resolution shall be effective from and after the date and
14 in the manner as provided in the City Charter.
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
i
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE
1
CITY OF SAN BERNARDINO APPROVING THE BORROWING BY THE
2 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO IN
CONNECTION WITH THE ISSUANCE OF THE INLAND VALLEY
3 DEVELOPMENT AGENCY REVENUE BOND, SERIES 2010 (CMB
INFRASTRUCTURE INVESTMENT GROUP V, LP - AGENCY
4 PROJECTS)
5
6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
7 Common Council of the City of San Bernardino at a meeting
8 thereof,held on the day of 2010,by the following vote to wit:
9 Council Members: Ayes Nays Abstain Absent
10 MARQUEZ
11 DESJARDINS
12 BRINKER _
13 SHORETT
14 KELLEY
15 JOHNSON
16 MC CAMMACK
17
18 Rachel G. Clark, City Clerk
19
20 The foregoing Resolution is hereby approved this day of 12010.
21
22 Patrick J. Morris, Mayor
23 City of San Bernardino
24 Approved as to Form:
25
By:
26 James F. Penman,City Attorney
27
28
5
CDC/2010-53
COOPERATION AGREEMENT
by and between
INLAND VALLEY DEVELOPMENT AGENCY
and
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
Relating to the
$8,000,000
INLAND VALLEY DEVELOPMENT AGENCY
REVENUE BOND SERIES 2010
(CMB INFRASTRUCTURE INVESTMENT
GROUP V, L.P. - AGENCY PROJECTS)
CDC/2010-53
COOPERATION LOAN AGREEMENT
THIS COOPERATION AGREEMENT is made and entered into as of September 1,2010
(this "Agreement"), by and between the Inland Valley Development Agency, a joint powers
authority organized and existing under the laws of the State of California(the "IVDA") and the
Redevelopment Agency of the City of San Bernardino, a public body corporate and politic (the
"Agency"),as follows.
WITNESSETH:
WHEREAS, the IVDA was organized pursuant to a Joint Powers Agreement, dated
January 24, 1990, as amended (the "IVDA Joint Powers Agreement'), by and among the City of
San Bernardino, California, the City of Colton, California, the City of Loma Linda, California
and the County of San Bernardino (collectively, the "IVDA Member Jurisdictions"), and
pursuant to the Community Redevelopment Law of the State of California ("Community
Redevelopment Law") for the purpose of assisting in the conversion of the former Norton Air
Force Base to civilian commercial and industrial uses and effectuating redevelopment;and
WHEREAS, pursuant to the Community Redevelopment Law (Health & Safety Code
Section 33000, et seq.) and the IVDA Joint Powers Agreement (the "Authorizing Provisions"),
the IVDA may enter into cooperation agreements with other redevelopment or public agencies to
carry out its redevelopment purposes; and
WHEREAS, the Agency has requested that the IVDA assist the Agency with the
financing of certain public infrastructure located along"E" Street and Inland Center Drive within
the City of San Bernardino and located within the Inland Valley Development Agency
Redevelopment Project Area, namely, the redesign and reconstruction of said streets, including
but not limited to, landscaping, street lights, upgraded signal lights, street improvements,
upgrades to the entrances of the Inland Center Mall, improvements in connection with the
Omnitrans project for the sbX bus rapid-transit route, water lines, sewer lines and storm drain
improvements and other improvements (the"Improvements"); and
WHEREAS, the Agency enters into this Agreement to assume the IVDA redevelopment
powers for that area bounded by Inland Center Drive, "E" Street, Orange Show Road and the I-
215 Freeway to the extent that such are located within the Inland Valley Redevelopment Project
Area(the"Mall Project Area")in order to carry out the Improvements; and
WHEREAS, the IVDA has determined to finance the Improvements by the issuance of
the Inland Valley Development Agency Revenue Bond, Series 2010 (CMB Infrastructure
Investment Group V, LP—Agency Projects) (the"Bond")in the principal amount of$8,000,000
under and secured by an Indenture and Loan Agreement dated as of September 1, 2010, by and
between the Agency and the IVDA (the "Indenture"), and loan the proceeds of the Bond to the
Agency(the"Loan")pursuant to the Loan Agreement and the Indenture;and
1
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WHEREAS, CMB Infrastructure Investment Group V, LP, a California limited
partnership, organized in accordance with the requirements for regional centers as set forth under
the United States Immigration Act of 1990, as amended (the `Bondholder") has offered to
purchase the Bond; and
WHEREAS, in order to secure the Bond, as provided in the Indenture,the Agency desires
to transfer to the IVDA, Agency surplus revenues consisting of tax increment revenues derived
from the Agency's Southeast Industrial Project Area after the payment of debt service on all
currently outstanding tax allocation bonds secured by the tax increment revenues of said project
areas, including the refunding thereof, and all future tax allocation bonds issued by the Agency
or on behalf of the Agency and secured by said tax increment revenues as provided in the
indenture(s) authorizing the issuance of said debt (the "Agency Surplus Revenues") for the
repayment of the Bond; and
WHEREAS, the IVDA and Agency wish to provide through this Agreement that in
addition to the Agency Surplus Revenues, the Agency shall pledge to IVDA additional revenues
as necessary to support the repayment of the Bond and shall provide additional revenues as
necessary to fund the construction and/or financing of the Improvements;and
WHEREAS, in addition, consistent with the Agency's assumption of IVDA's
redevelopment powers for the Mall Project Area, commencing as of July 1, 2010 and thereafter
for the term of this Agreement, the WDA tax increment revenues for the Inland Center Mall
("Inland Center Mall Revenues") shall become revenues attributed to the Agency; and
WHEREAS, Agency thereafter will pledge the Inland Center Mall Revenues for the
repayment of the Bond and any Inland Center Mall Revenues in excess of those required to repay
the Bond (the"Excess Inland Center Mall Revenues")will be applied to pay for the remainder of
the Improvements and/or the financing thereof not otherwise financed by the Bond; and
WHEREAS, utilizing all such revenues, the Agency shall timely repay the Loan as
provided in the Loan Agreement in order to cause the timely payment of the IVDA's obligations
under the Indenture and the Bond;and
WHEREAS, the IVDA and the Agency have determined that it is in the best interests of
the NDA and the Agency to enter into this Agreement in order to issue the Bond to finance said
Improvements, and thus desire to provide for the terms and conditions of their cooperation in
such matters as herein provided.
2
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NOW THEREFORE, the parties to this Agreement agree, as follows.
ARTICLE I.
DEFINITIONS; TERM OF AGREEMENT
Section 1.01. Recitals. The Recitals set out above are true and correct.
Section 1.02. Definitions. Unless the context otherwise requires,capitalized terms used
herein and not defined herein shall have the meanings ascribed thereto in the Indenture.
Section 1.03. Term. This Agreement shall remain in full force and effect so long as the
Bond is Outstanding.
ARTICLE IL
TRANSFER OF REDEVELOPMENT POWERS AND TAX INCREMENT REVENUES
OF IVDA TO AGENCY
Section 2.01. Transfer of Powers.
(a) In order to carry out the Improvements, the Agency shall assume the
redevelopment powers of the IVDA as to the Inland Valley Redevelopment Project Area located
in the area bounded by Inland Center Drive, "E" Street, Orange Show Road and the I-215
Freeway (the "Mall Project Area").
(b) Agency shall use such assumed powers to carry out the Improvements,
specifically including,but not limited to:
1. the redesign and reconstruction of Inland Center Drive from the I-215 Freeway
east to "E" Street, including streetscapes, landscaping, monument signs for
businesses in the Mall Project Area, theme street lighting, upgraded traffic
signals, street improvements such as curb and gutter, sidewalks and
reconstruction;
2. improvements to the entrances to the Inland Center Mall on "E" Street and Inland
Center Drive, including public landscape areas with monument signs and
identification signage;
3. coordination with Omnitrans for the sbX bus rapid-transit route to assure
continued access with unrestricted left turns for ingress and egress through the
"E" Street Inland Center Mall entrances and exits;
4. installation of an Agency-owned reader board sign on the Inland Center Mall
parking lot adjacent to the I-215 Freeway;
5. additional infrastructure, including but not limited to, water lines, sewer lines and
storm drains to support designated parcels for future development and the
3
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relocation of additional business tenants into the Inland Center Mall parking
areas;
6. off-site improvements which are the subject of a participating agreement with the
ownership of the Inland Center Mall.
Section 2.02 Attribution of Revenues. Pursuant to the assumption of IVDA
redevelopment powers by the Agency as set out in Section 2.01 above, commencing as of the
2010-2011 fiscal year (July 1, 2010) all those tax increment revenues derived by IVDA from the
Inland Center Mall (the "Inland Center Mall Revenues") shall become revenues attributed to the
Agency.
Section 2.03 Use of Inland Center Mall Revenues for Bond Payments. Throughout
the term of this Agreement, Agency hereby pledges the Inland Center Mall Revenues attributed
to it pursuant to Section 2.02 first to be applied for the repayment of the Bond.
The Agency shall take all steps necessary to utilize the Inland Center Mall Revenues to
pay principal and interest due on the Bond not covered by the payment provisions of the Loan as
provided in the Loan Agreement dated as of September 1, 2010, between the Agency and the
IVDA and the Indenture. Such payments shall be absolute obligations of the Agency,not subject
to deduction or offset of any kind.
Section 2.04 Use of Excess Inland Center Mall Revenues. To the extent that there are
excess Inland Center Mall Revenues ("Excess Inland Center Mall Revenues") after repayment of
the Bond under Section 2.03(a) above, the Agency shall use those Excess Inland Center Mall
Revenues for the development of the Inland Center Mall by financing those Improvements
defined in Section 2.01(b) above not otherwise financed by the Bond or from other financing
sources.
ARTICLE III.
MISCELLANEOUS
Section 3.01. Amendment. The provisions of this Agreement may be amended only
upon the written approval of the parties hereto and the Bondholder, which approval shall not be
unreasonably withheld.
Section 3.02. Beneficiaries of Agreement. The Bondholder is expressly recognized as
third party beneficiary hereto. Nothing in this Agreement, expressed or implied, is intended to
give to any person other than the Agency and IVDA, as parties hereto, and the Bondholder, as
third party beneficiary hereof, any right, remedy or claim under or by reason of this Agreement.
Any covenants, stipulations, promises or agreements in this Agreement contained by and on
behalf of the Agency and IVDA or any member, officer or employee thereof shall be for the sole
and exclusive benefit of the Agency and IVDA as parties hereto and the Bondholder as third
party beneficiary hereof.
Section 3.03. No Personal Liability. No member, officer or employee of the Agency
shall be individually or personally liable for the payment of the Loan; but nothing herein
4
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contained shall relieve any member, officer or employee of the Agency from the performance of
any official duty provided by law.
Section 3.04. Partial Invalidity. If any one or more of the agreements or covenants or
portions thereof provided in this Agreement to be performed on the part of the Agency or the
IVDA should be contrary to law, then such agreement or agreements, such covenant or
covenants, or such portions thereof, shall be null and void and shall be deemed separable from
the remaining agreements and covenants or portions thereof.
Section 3.05. Execution in Several Counterparts. This Agreement may be executed
in any number of counterparts and each of such counterparts shall for all purposes be deemed to
be an original; and all such counterparts, or as many of them as the Agency and the IVDA shall
preserve undestroyed, shall together constitute but one and the same instrument.
5
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IN WITNESS WHEREOF, the Inland Valley Development Agency and the
Redevelopment Agency of the City of San Bernardino have caused this Cooperation Agreement
to be signed in their name by their respective Executive Directors all as of the date and year first
above written.
IVDA
Inland Valley Development Agency
By:
Interim Executive Director
ATTEST:
By:
Clerk of the Board
AGENCY
Redevelopment Agency of the City of
San Bernardino
By:
Interim Executive Director
ATTEST:
By:
Secretary
6
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IN WITNESS WHEREOF, the Inland Valley Development Agency and the
Redevelopment Agency of the City of San Bernardino have caused this Cooperation Agreement
to be signed in their name by their respective Executive Directors all as of the date and year first
above written.
IVDA
Inland Valley Development Agency
By:
Interim Executive Director
ATTEST:
By:
Clerk of the Board
AGENCY
Redevelopment Agency of the City of
San Bernardino
By:
Interim Executive Director
ATTEST:
By:
Secretary
6
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IN WITNESS WHEREOF, the Inland Valley Development Agency and the
Redevelopment Agency of the City of San Bernardino have caused this Cooperation Agreement
to be signed in their name by their respective Executive Directors all as of the date and year first
above written.
IVDA
Inland Valley Development Agency
By:
Interim Executive Director
ATTEST:
By:
Clerk of the Board
AGENCY
Redevelopment Agency of the City of
San Bernardino
By:
Interim Executive Director
ATTEST:
By:
Secretary
6
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INDENTURE AND LOAN AGREEMENT
by and among
INLAND VALLEY DEVELOPMENT AGENCY,
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
and
CMB INFRASTRUCTURE INVESTMENT GROUP V,LP
Relating to the
$8,000,000
INLAND VALLEY DEVELOPMENT AGENCY
REVENUE BOND SERIES 2010
(CMB INFRASTRUCTURE INVESTMENT GROUP V,L.P. -AGENCY PROJECTS)
CDC/2010-53
INDENTURE AND LOAN AGREEMENT
This Indenture and Loan Agreement dated as of September 1, 2010 (the "Indenture'), is
by and between the Inland Valley Development Agency, a joint powers authority organized and
existing under the laws of the State of California (the "IVDA'), Redevelopment Agency of the
City of San Bernardino, a public body corporate and politic (the "Agency") and CMB
Infrastructure Investment Group V, LP, a California limited partnership(the `Bondholder"):
WITNESSETH
WHEREAS, the IVDA was organized pursuant to a Joint Powers Agreement, dated
January 24, 1990, as amended (the "IVDA Joint Powers Agreement"), by and among the City of
San Bernardino, California, the City of Colton, California, the City of Loma Linda, California
and the County of San Bernardino (collectively, the "IVDA Member Jurisdictions"), and
pursuant to the Community Redevelopment Law of the State of California ("Community
Redevelopment Law") for the purpose of assisting in the conversion of the former Norton Air
Force Base to civilian commercial and industrial uses and effectuating redevelopment; and
WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency")
has requested that the IVDA assist the Agency with the financing of certain public infrastructure
located along "E" Street and Inland Center Drive within the City of San Bernardino and located
within the Inland Valley Development Agency Redevelopment Project Area, namely, the
redesign and reconstruction of said streets, including but not limited to, landscaping, street lights,
upgraded signal lights, street improvements, upgrades to the entrances of the Inland Center Mall,
improvements in connection with the Omnitrans project for the sbX bus rapid-transit route,water
lines, sewer lines and storm drain improvements and other improvements (the "Improvements");
and
WHEREAS, the IVDA has determined to finance the Improvements by the issuance of
the Inland Valley Development Agency Revenue Bond, Series 2010 (CMB Infrastructure
Investment Group V, LP —Agency Projects) (the "Bond") in the principal amount of$8,000,000
under and secured by this Indenture; and
WHEREAS, the Bond will be secured by the Revenues (as defined in Article I hereof)
constituting funds pledged by the Agency to the IVDA and subsequently pledged by the IVDA
to the repayment of the Bond hereunder; and
WHEREAS, the IVDA has determined that it is in the best interests of the IVDA and the
Agency to issue the Bond to finance said Improvements; and
WHEREAS, CMB Infrastructure Investment Group V, LP, a California limited
partnership, organized in accordance with the requirements for regional centers as set forth under
the United States Immigration Act of 1990, as amended,has offered to purchase the Bond; and
1
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WHEREAS, the IVDA has determined that all things necessary to cause the Bond when
duly executed by the IVDA as provided herein, to be a legal and valid special obligation of the
IVDA enforceable in accordance with its terns, and to constitute the Indenture a valid agreement
for the purposes and uses herein set forth in accordance with its terms, have been done and taken
and the execution and delivery hereof and the execution,authentication and delivery of the Bond,
subject to the terms hereof,have in all respects been duly authorized.
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in order to secure the
payment of the principal of, and the interest on, the Bond under the Indenture and to secure the
performance and observance of all of the covenants and conditions therein and herein set forth,
and to declare the terns and conditions upon and subject to which the Bond is to be issued and
received, and in consideration of the premises and of the mutual covenants herein contained, and
of the purchase and acceptance of the Bond by the owner thereof, and for other valuable
consideration, the receipt whereof is hereby acknowledged, the IVDA does hereby covenant and
agree with the Agency and CMB, as follows:
ARTICLE I
DEFINITIONS
"Agency Loan Agreement" means that certain Agency Loan Agreement dated as of
September 1,2010,between the IVDA and the Agency.
"Agency Surplus Revenues" means tax increment revenues derived from the Agency's
Southeast Industrial Project Area after the payment of debt service on all currently outstanding
tax allocation bonds secured by the revenues from said project area, including the refunding
thereof, and all future tax allocation bonds of the Agency or on behalf of the Agency, secured by
said tax increment revenues as provided in the indenture(s) authorizing the issuance of said debt.
Upon adoption of the Merger A, the tax increment revenues of the Merger A shall replace the
pledged tax increment revenues of the Southeast Industrial Project Area. The indebtedness
currently outstanding for the Southeast Industrial Project Area is
"Bond" means the Inland Valley Development Agency Revenue Bond, Series 2010
(CMB Infrastructure Investment Group V, LP — Agency Projects) authorized to be issued
hereunder.
"Bondholder" means CMB Infrastructure Investment Group V, LP, a California limited
partnership organized in accordance with the requirements for regional centers as set forth under
the Immigration Act of 1990, as amended, and for the purpose of promoting economic growth
through, among other things, increased export sales, improved regional productivity,job creation
and increased domestic capital investment, and to generate jobs through the immigrant investor
visa program of the United States Citizenship and Immigration Service ("USCIS").
"Cooperation Agreement" means the Cooperation Agreement dated as of September 1,
2010, by and between the Agency and the IVDA.
2
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"Inland Center Mall Revenues" means commencing as of the 2010-2011 Fiscal Year, tax
increment revenues derived from the Inland Center Mall facility as transferred to the Agency
under the Cooperation Agreement.
"Revenues" means collectively the Agency Surplus Revenues and Inland Center Mall
Revenues.
ARTICLE II
ISSUANCE OF THE BOND
Section 2.1. Authorization and Terms of Bond. The Bond in the principal amount of
$8,000,000 is hereby authorized to be issued by the IVDA in order to finance the Improvements.
The Bond shall be designated the "Inland Valley Development Agency Revenue Bond, Series
2010 (CMB Infrastructure Investment Group V, LP — Agency Projects)." The Bond shall be
dated the date of delivery thereof, shall bear interest (computed on the basis of a 360-day year
consisting of twelve 30-day months) at the rate per annum, payable quarterly on each January 1,
April 1, July 1, and October 1 (each such date is defined herein as an "Interest Payment Date"),
commencing on April 1, 2011, as further provided in Section 2.3(b) hereof. The Bond shall
mature and become payable, as follows:
Maturity Date Princinal Interest Rate
October 1, 2016 $8,000,000 5.25%
The Bond shall bear interest at the rate of 5.25%per annum, accruing from and after each date of
funding of a portion of the total principal amount of the Bond as described in Section 2.3(b)(2)
hereof.
Section 2.2 Form of Bond. The Bond shall be substantially in the form attached
hereto as Exhibit A, which is incorporated herein and made a part hereof, with necessary or
appropriate variations, omissions and insertions as permitted or required hereby.
Section 2.3 Application of Proceeds of Sale of Bond.
(a) Use of Funds. Upon receipt of payment for the Bond, the IVDA shall
transfer said amount to the Agency as further provided in Section 23(b)(2) below. The Agency
shall use and apply the proceeds of the Bond for the construction of the Improvements and any
legal purposes of the Agency pursuant to the California Health and Safety Code.
(b) Funding of the Bond.
(1) Acknowledgement. The Agency and the IVDA hereby
acknowledge that (i) the Bondholder, as an approved and federally-designated "regional center",
is authorized and intends to raise capital from foreign investors who seek to obtain permanent
residency in the United States in accordance with the EB-5 investor visa program of the
Immigration and Nationality Act(the"EB-5 Program"), and(ii) it is anticipated that each foreign
3
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investor will make an investment with the Bondholder of Five Hundred Thousand Dollars
($500,000.00). In that regard, the Agency and the IVDA further acknowledge that the purchase
of the Bond is dependent on the amount of capital raised by the Bondholder from foreign
investors, and accordingly, the Agency and the IVDA agree that the Bondholder does not
guarantee that the entire principal amount of the Bond, or any portion thereof, shall be disbursed
to the Agency. Additionally, the IVDA and the Agency further acknowledge that to maintain
compliance with the rules and regulations promulgated under the EB-5 Program,the Bondholder
is required to invest its funds with third parties, other than the Agency, located within the
geographic area that constitutes the Bondholder's "regional center", and accordingly,the Agency
and the IVDA further agree that a portion of the funds raised by the Bondholder will be allocated
to such third parties, which allocation shall be made in the sole and absolute discretion of the
Bondholder.
(2) Funding. Subject to Section (1) above, and the other terms and
conditions of this Agreement,the IVDA hereby authorizes the Bondholder to pay the proceeds of
the Bond directly to the Agency, with notice to the IVDA. Said proceeds shall be paid in no
more than twenty-five (25) trenches, each in the minimum principal amount of Five Hundred
Thousand Dollars ($500,000.00) (each, a "Tranche"), and each Tranche will be disbursed to the
Agency at such time as determined by the Bondholder, in its sole and absolute discretion,
provided that the Bondholder anticipates that each Tranche will be disbursed when the funds
invested by an investor in the Bondholder become available to the Bondholder for disbursement
to the Agency. If, and when, the Bondholder determines it is able to disburse a Tranche to the
Agency, the Bondholder shall provide the IVDA and the Agency with notice thereof, and the
Agency and the IVDA agree that they will accept and borrow such funds. Each Tranche shall be
disbursed by wire transfer to an account of the Agency pursuant to written instructions to be
provided by the Agency. The Bondholder shall not be required to disburse any Tranche to the
Agency if an Event of Default by the IVDA or the Agency hereunder has occurred and is
continuing. The date on which the initial Tranche is disbursed to the Agency under this
Agreement shall be referred to herein as the"Initial Funding Date."
Section 2.4. Repayment of the Bond; Prepayment Provisions.
(a) Principal. Payment of principal shall be due and payable on October 1,
2016 (the "Maturity Date"), and shall be paid in immediately available funds. The IVDA may,
without penalty, prepay solely as to the entire outstanding principal balance of this Bond any
time on or after April 1, 2014, or prior to such date upon the consent of the Bondholder.
(b) Interest. Interest shall be paid quarterly on each January 1, April 1, July 1,
and October I (each such date is defined herein as an "Interest Payment Date"), commencing on
April 1, 2011, with the final interest payment being due and payable on the Maturity Date. All
interest shall be calculated on the basis of the actual number of days during each quarterly
interest payment period that any principal amount of the Bond was then outstanding. Interest
shall be payable in arrears based upon the principal balance outstanding as of each Interest
Payment Date for the immediately preceding interest accrual period for the actual number of
days that principal was then outstanding on the Bond. The Bondholder shall submit invoices to
the IVDA and the Agency on a semi-annual basis prior to each Interest Payment Date.
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(c) Late Charges. A late charge of three percent (3%) of the amount due shall
be paid with respect to each payment of interest not made within thirty (30) calendar days from
and after an Interest Payment Date ("Delinquent Interest"). A late charge of three percent (3%)
of the amount due shall be paid with respect to the late payment of principal on the Maturity
Date, if such payment of principal is not made by October 1, 2016 ("Delinquent Principal").
Each amount of Delinquent Interest and Delinquent Principal plus the applicable late charge
(together, a"Delinquent Payment") shall bear interest at 5.25% per annum until such Delinquent
Payment is made in full to the Bondholder.
(d) Acceleration of Certain Interest Payments. In the event the IVDA fails to
make two (2) consecutive interest payments to the Bondholder, or two (2) interest payments in
any twelve-month period, the Bondholder may accelerate payment of the amount of interest
coming due on the next two (2) succeeding Interest Payment Dates, so that all such interest,
together with all delinquent pa
ments and interest due on such delinquent payments, shall be due
and payable on the tenth (10 ) calendar day of the month following the month in which the
second (2nd) consecutive interest payment was not made or the second (2nd) interest payment in a
twelve-month period was not made. Such amounts of interest that are subject to acceleration
shall only be payable upon invoice from the Bondholder delivered to the IVDA and the Agency.
Thereafter, the IVDA shall continue to remit quarterly interest payments in accordance with this
Agreement and the Bond.
ARTICLE III
SECURITY FOR THE BOND
The Bond is secured solely by the Revenues which are specifically pledged for the
repayment of the Bond. The pledge of the Revenues hereunder is not an exclusive pledge of the
Revenues. The Bondholder acknowledges that the Revenues are derived from the Agency Loan
Agreement and the Cooperation Agreement. The IVDA does not pledge any other source of
payment for the Bond. The Bondholder further acknowledges receipt of the financial audits of
the IVDA and the Agency for the period ending June 30, 2009, and the budgets for the past and
current fiscal years, and has reviewed the financial condition of the IVDA and Agency and other
notes as contained in the audit statements and the budgets.
ARTICLE IV
REPRESENTATIONS AND COVENANTS OF THE IVDA
Section 4.1 The IVDA has been duly organized under the laws of the State of California
and has the power to enter into this Agreement, the Loan Agreement and the Cooperation
Agreement(the"Agreements")and to incur the obligations under the Bond.
Section 4.2 Execution of the Agreements and of the Bond have been duly authorized by
the governing body of the IVDA.
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Section 4.3 No governmental or regulatory approvals that have not been previously
obtained by the IVDA are required for the due approval, execution and delivery by the IVDA of
the Agreements and the Bond.
Section 4.4 The Agreements have been, and the Bond will be, duly executed and
delivered by the IVDA and the Agreements and the Bond constitute valid and binding
obligations of the IVDA, payable from the Revenues as set forth herein and in the Bond.
Section 4.5 The representations of the IVDA contained in the Agreements shall be true
and correct in all material respects on and as of the Initial Funding Date as referred to in Section
2.2 above,with the same force and effect as though such representations and warranties had been
made on and as of such date.
Section 4.6 On and as of the Initial Funding Date, the IVDA is not in default under any
other indebtedness of the IVDA, and the execution, delivery or performance of the IVDA of the
Agreements and the Bond shall not, to the best of the IVDA's knowledge, contravene any
provision of law, statute, rule or regulation of any governmental instrumentality and shall not, to
the best of the IVDA's knowledge, 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 IVDA is a party or by which it is bound or to
which it may be subject.
Section 4.7 The IVDA recognizes that the investors comprising the Bondholder are
required to demonstrate the creation of jobs through the expenditure of the funds as invested by
such investors with the Bondholder pursuant to the rules and regulations of the USCIS. The
IVDA covenants and agrees that the proceeds of each Tranche shall be expended on qualifying
projects as required by the rules and regulations of the USCIS within twenty-four (24) months
after receipt of such Tranche from the Bondholder.
ARTICLE V
REPRESENTATIONS AND COVENANTS OF THE AGENCY
Section 5.1 The Agency is a public body duly organized under the laws of the State of
California and has the power to enter into this Agreement, the Agency Loan Agreement and the
Cooperation Agreement(the "Agreements").
Section 5.2 Execution of the Agreements have been duly authorized by the governing
body of the Agency.
Section 5.3 No governmental or regulatory approvals that have not been previously
obtained by the Agency are required for the due approval, execution and delivery by the Agency
of the Agreements.
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Section 5.4 The Agreements constitute valid and binding obligations of the Agency.
Section 5.5 The Agency shall provide to the Bondholder copies of reports prepared
periodically by the Agency regarding the status of(i) the commencement date for each of the
identified projects for which the proceeds of the Bond will be expended together with a
description of the other sources of project funds and the dollar amounts thereof, and (ii) either
submittal to the Bondholder of the notice of completion as issued by the Agency or such other
written confirmation to the Bondholder as to the date of completion of each such project and the
final costs for each of said projects as funded, whether in whole or in part by the proceeds of the
Loan, together with the sources and dollar amounts of all other funding sources used to complete
such project.
Section 5.6 The audit statements and budgets referred to in Article III above, present
fairly, in all material respects, the financial condition of the Agency at such dates and the results
of operations for the periods then ended. Since the end of the periods covered by the audit
statements, there has been no known change in the financial condition of the Agency which has
materially or adversely affected the ability of the Agency to conduct its business as presently
heretofore conducted.
Section 5.7 The representations of the Agency contained in the Agreements shall be true
and correct in all material respects on and as of the Initial Funding Date as referred to in Section
2.2 above, with the same force and effect as though such representations and warranties had been
made on and as of such date.
Section 5.8 On and as of the Initial Funding Date, the Agency is not in default under any
other indebtedness of the Agency, and the execution, delivery or performance of the Agency of
the Agreements shall not, to the best of the Agency's knowledge, contravene any provision of
law, statute, rule or regulation of any governmental instrumentality and shall not, to the best of
the Agency's knowledge, 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 Agency is a party or by which it is bound or to which it may
be subject.
Section 5.9 The Agency recognizes that the investors comprising the Bondholder are
required to demonstrate the creation of jobs through the expenditure of the funds as invested by
such investors with the Bondholder pursuant to the rules and regulations of the USCIS. The
Agency covenants and agrees that the proceeds of each Tranche shall be expended on qualifying
projects as required by the rules and regulations of the USCIS within twenty-four (24) months
after receipt of such Tranche from the Bondholder.
SECTION VI
EVENTS OF DEFAULT
Section 6.1 By Bondholder. The following shall constitute a default by the Bondholder:
failure to fund the Bond as provided in Section 3 of this Agreement within thirty (30) calendar
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days after written request by the Agency for the Initial Funding Date or any subsequent funding
date to occur. The Bondholder shall ensure that the first $500,000.00 shall be disbursed to the
Agency by December 1, 2010, and that the full amount of the Bond shall be disbursed by the
Bondholder to the Agency on or before August 1, 2011.
Section 6.2 By IVDA. The following shall constitute a default by the IVDA:
(a) failure to pay the principal of, interest on, and any other payments with
respect to, the Bond, on or before the tenth (10`h) calendar day following an Interest Payment
Date or the fifteenth (15`") calendar day following the Maturity Date, as applicable, as each
payment of interest and principal is required to be made; and
(b) failure to perform, or a delay in performing, any term or provision of this
Agreement and such failure or delay is not corrected within thirty (30) calendar days after receipt
of notice thereof from the Bondholder.
Section 6.3 By Agency. The following shall constitute a default by the Agency:
(a) a default under the Agency Loan Agreement or the Cooperation
Agreement; and
(b) failure to perform, or a delay in performing, any term or provision of this
Agreement and such failure or delay is not corrected within thirty (30) calendar days after receipt
of notice thereof from the Bondholder.
ARTICLE VII
REMEDIES
Section 7.1 Upon a default by the Bondholder, (i) the IVDA and the Agency shall be
released from any further obligations under this Agreement or the Bond except the IVDA shall
not be released from the repayment of the principal of, and interest on, any dollar amounts
previously advanced, if any, by the Bondholder to the IVDA, and (ii) the IVDA may seek
appropriate legal, injunctive or equitable relief.
Section 7.2 Upon a default by the IVDA, the Bondholder may institute any proceeding at
law or in equity to enforce the obligations of the IVDA under the Bond and/or any covenants and
obligations of the IVDA contained in 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 reasonable attorney's fees) in bringing such action. Additionally,
the Bondholder shall be entitled to any costs, including reasonable attorney's fees, incurred in
collecting amounts due and payable to the Bondholder under the Bond.
Section 7.3 Upon a default by the Agency, the Bondholder may institute any proceeding
at law or in equity to enforce any covenants and obligations of the Agency hereunder. In any
action brought under this Agreement, the prevailing party shall be entitled to reimbursement
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from the other party of its costs and expenses (including reasonable attorney's fees) in bringing
such action. Additionally, the Bondholder shall be entitled to any costs, including reasonable
attorney's fees, incurred in collecting amounts due and payable to the Bondholder under the
Bond.
ARTICLE VIII
NO ASSIGNMENT
The Bondholder shall not be entitled to, and shall not, assign the Bond, nor its right to
receive payments under the Bond to any other party without the prior written consent of the
IVDA and the Agency, which consent shall not be unreasonably withheld.
ARTICLE IX
NOTICES
Notices shall be presented in person or by certified or registered United States mail,
return receipt requested, postage prepaid, or by overnight 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, telephonically
verified fax transmission, or telephonically verified email 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 IVDA: Inland Valley Development Agency
294 South Leland Norton Way
San Bernardino, California 92408
Attention: Interim Executive Director
TO AGENCY: Redevelopment Agency of the
City of San Bernardino
200 North`B" Street,Suite 301
San Bernardino,California 92401
Attention: Interim Executive Director
TO BONDHOLDER: CMB Infrastructure Investment Group V,LP
4507 49"Avenue
Moline,Illinois 61265
Attention: Patrick Hogan
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[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Inland Valley Development Agency and the
Redevelopment Agency of the City of San Bernardino have caused this Indenture to be signed in
their name by their respective Executive Directors, and CMB Infrastructure Investment Group V,
LP has caused this Indenture to be signed in its name by its officer thereunto duly authorized, all
as of the date and year first above written.
IVDA
Inland Valley Development Agency
By:
Interim Executive Director
ATTEST:
By:
Clerk of the Board
AGENCY
Redevelopment Agency of the City of
San Bernardino
By:
Interim Executive Director
ATTEST:
By:
Secretary
BONDHOLDER
CMB Infrastructure Investment Group V, LP
By:
General Partner
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EXHIBIT"A"
INLAND VALLEY DEVELOPMENT AGENCY
REVENUE BOND SERIES 2010
(CMB INFRASTRUCTURE INVESTMENT
GROUP V,LP-AGENCY PROJECTS)
RATE OF MATURITY ISSUE
INTEREST DATE DATE
5.25% October 1,2016 September_,2010
REGISTERED OWNER: CMB Infrastructure Investment Group V,LP
PRINCIPAL AMOUNT: $8,000,000
FOR VALUE RECEIVED, THE INLAND VALLEY DEVELOPMENT AGENCY
(the "IVDA")hereby promises to pay to CMB Infrastructure Investment Group V, LP, a Limited
Partnership organized under the laws of the State of California(the `Bondholder"), the principal
sum of Eight Million Dollars ($8,000,000) plus interest at a rate of 5.25% per annum in
accordance with the terms and provisions of that certain Indenture and Loan Agreement dated as
of September 1, 2010, by and among the IVDA, Redevelopment Agency of the City of San
Bernardino and the Bondholder, CMB Infrastructure Investment Group V, LP (the "Indenture").
This Bond shall be paid in full on the Maturity Date, unless and to the extent payment has been
made sooner as permitted by the Indenture.
The WDA agrees to pay the aforesaid principal plus interest in accordance with the terms
hereinafter set forth:
1. This Bond shall be payable,as follows:
(a) On October 1, 2016, the undersigned shall pay in lawful money of the
United States of America Eight Million Dollars ($8,000,000) to the Bondholder at 4507 49`"
Avenue, Moline, Illinois 61265, or to such other address or to such account and in such manner
as the Bondholder shall direct. The IVDA may, without penalty, prepay solely as to the entire
outstanding principal balance of this Bond at anytime on or after April 1, 2014, and on any other
date thereafter,or prior to such date upon the mutual consent of the parties.
(b) Interest shall be paid quarterly on each January 1, April 1, July 1, and
October I (each such date is defined herein as an "Interest Payment Date"), commencing on
April 1, 2011, with the first interest payment due on April 1, 2011, (each such date being an
"Interest Payment Date") with the final interest payment due and payable on the Maturity Date.
Interest shall be payable in arrears based upon the principal balance of this Bond outstanding as
of each interest payment date.
4830-1043.7127.1 I
CDC/2010-53
2. If a payment not timely made and remains overdue for a period of thirty (30)
calendar days after the same becomes due and payable (a "Delinquent Payment"), the IVDA,
without notice or demand by the Bondholder, shall pay a late charge in an amount equal to three
percent (3%) of the Delinquent Payment owing (the "Late Charge"). Each Delinquent Payment
plus the applicable Late Charge shall bear interest at 5.25% per annum until such amount is paid
in full to the Bondholder.
3. In the event the IVDA fails to make two (2) consecutive interest payments to the
Bondholder, or two (2) interest payments in any twelve-month period, the Bondholder may
accelerate payment of the amount of interest coming due on the next two (2) succeeding interest
payment dates, so that all such interest, together with all delinquent payments, Late Charges and
interest due thereon, shall be due and payable on the tenth (10°) calendar day of the month
following the month in which,the second (2"d) consecutive interest payment was not made or the
second(2nd) interest payment in a twelve-month period was not made.
4. This Bond is solely the debt of the IVDA. This Bond is not a debt of the City of
San Bernardino, State of California or any other of the State's political subdivisions and neither
the City, the State,nor any other of said State's political subdivisions is liable hereon. This Bond
does not constitute an indebtedness within the meaning of any constitutional or statutory debt
limitation or restriction. Neither the members of the IVDA Board, nor any persons executing
this Bond are liable personally on this Bond by reason of its issuance.
5. This Bond is secured solely by a pledge and assignment of the Revenues pledged
by the IVDA under the Indenture.
6. Interest on the Bond is not included in the gross income of the Bondholder for
Federal income tax purposes under the Internal Revenue Code of 1986, as amended. Interest on
this Bond is exempt from present State of California personal income taxes.
7. This Bond shall not be assigned by the Bondholder without permission of the
IVDA, which permission shall not be unreasonably withheld.
8. The execution, delivery and performance of this Bond have been duly authorized
by all necessary actions of the IVDA, do not require the consent or approval of any other person,
regulatory IVDA or governmental body, and do not conflict with, result in a violation of, or
constitute a default of. (a) any provision of any agreement or other instrument binding upon the
IVDA, or(b) any law, governmental regulation, court decree or order applicable to the IVDA.
9. This Bond, when delivered, shall constitute a legal, valid and binding obligation
of the IVDA, enforceable in accordance with its terms.
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10. It is hereby recited, certified and declared that any and all acts, conditions and
things required to exist, to happen and to be performed precedent to and in the issuance of this
Bond exist, have happened and have been performed in due time, form and manner as required
by the California Constitution and the laws of the State of California.
11. This Bond and the Indenture constitute the entire understanding and agreement of
the parties as to the matters set forth herein and therein. No alteration of, or amendment to, this
Bond shall be effective unless given in writing and signed by the Bondholder and the IVDA.
12. Payment of the principal amount of this Bond may not be accelerated by the
Bondholder.
13. This Bond has been delivered to the Bondholder and accepted by the Bondholder
in the State of California. In the event of a lawsuit, the Bondholder and the IVDA agree to
submit to the jurisdiction of the courts of San Bernardino County, California. This Bond shall be
governed by the laws of the State of California as to the interpretation of any matter contained
herein.
14. If a court of competent jurisdiction finds any provision of this Bond invalid or
unenforceable as to any person or circumstance, such finding shall not render that provision
invalid or unenforceable as to any other persons or circumstances. If feasible, any such
offending provision shall be deemed to be modified to be within the limits of enforceability or
validity; provided, however, in the event the offending provision cannot be so modified, it shall
be stricken and all other provisions of this Bond in all respects shall remain valid and
enforceable.
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IN WITNESS WHEREOF, the IVDA has caused this Bond to be executed as of this_ day of
September, 2010.
Inland Valley Development Agency
By:
Interim Executive Director
Attest:
By:
Clerk of the Board
4830-1043-7127.1 4
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AGENCY LOAN AGREEMENT
by and between
INLAND VALLEY DEVELOPMENT AGENCY
and
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
Relating to the
$8,000,000
INLAND VALLEY DEVELOPMENT AGENCY
REVENUE BOND SERIES 2010
(CMB INFRASTRUCTURE INVESTMENT
GROUP V,L.P. -AGENCY PROJECTS)
CDC/2010-53
AGENCY LOAN AGREEMENT
THIS AGENCY LOAN AGREEMENT is made and entered into as of September 1, 2010 (the
"Agreement") by and between the Inland Valley Development Agency, a joint powers authority
organized and existing under the laws of the State of California(the "IVDA") and the Redevelopment
Agency of the City of San Bernardino,a public body corporate and politic(the"Agency"), as follows.
WITNESSETH:
WHEREAS,the IVDA was organized pursuant to a Joint Powers Agreement, dated January 24,
1990, as amended (the "IVDA Joint Powers Agreement"), by and among the City of San Bernardino,
California, the City of Colton, California, the City of Loma Linda, California and the County of San
Bernardino (collectively, the "IVDA Member Jurisdictions"), and pursuant to the Community
Redevelopment Law of the State of California("Community Redevelopment Law") for the purpose of
assisting in the conversion of the former Norton Air Force Base to civilian commercial and industrial
uses and effectuating redevelopment; and
WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency") has
requested that the IVDA assist the Agency with the financing of certain public infrastructure located
along "E" Street and Inland Center Drive within the City of San Bernardino and located within the
Inland Valley Development Agency Redevelopment Project Area, namely, the redesign and
reconstruction of said streets, including but not limited to, landscaping, street lights, upgraded signal
lights, street improvements, upgrades to the entrances of the Inland Center Mall, improvements in
connection with the Omnitrans project for the sbX bus rapid-transit route, water lines, sewer lines and
storm drain improvements and other improvements (the"Improvements"); and
WHEREAS, the IVDA has determined to finance the Improvements by the issuance of the
Inland Valley Development Agency Revenue Bond, Series 2010 (CMB Infrastructure Investment
Group V, LP — Agency Projects) (the "Bon(f) in the principal amount of $8,000,000 under and
secured by an Indenture and Loan Agreement dated as of September 1, 2010, by and between the
Agency and the IVDA (the "Indenture'), and loan the proceeds of the Bond to the Agency (the
"Loan")pursuant to this Agreement and the Indenture; and
WHEREAS, CMB Infrastructure Investment Group V, LP, a California limited partnership,
organized in accordance with the requirements for regional centers as set forth under the United States
Immigration Act of 1990,as amended (the"Bondholder")has offered to purchase the Bond; and
WHEREAS, in consideration for the Loan,the Agency desires to transfer to the IVDA, Agency
surplus revenues consisting of tax increment revenues derived from the Agency's Southeast Industrial
Project Area after the payment of debt service on all currently outstanding tax allocation bonds secured
by the tax increment revenues of said project area, including the refunding thereof, and all future tax
allocation bonds issued by the Agency or on behalf of the Agency and secured by said tax increment
revenues as provided in the indenture(s) authorizing the issuance of said debt (the "Agency Surplus
Revenues") for the repayment of the Loan; and
WHEREAS, the indebtedness currently outstanding for the Southeast Industrial Project Area is
and
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WHEREAS, the Agency Surplus Revenues received by the IVDA from the Agency hereunder
will be pledged under the Indenture for the repayment of the Bond, and the IVDA shall pledge and
assign its right to payment hereunder to the Bondholder; and
WHEREAS, the Agency shall timely repay the Loan as herein provided in order to cause the
timely payment of the IVDA's obligations under the Indenture and the Bond;and
WHEREAS, the IVDA and the Agency have determined that it is in the best interests of the
lVDA and the Agency to issue the Bond to finance said Improvements, and thus desire to provide for
the terms and conditions of the Loan and the repayment thereof as herein provided.
NOW THEREFORE, the parties to this Agreement agree, as follows.
ARTICLE I.
DEFINITIONS; TERM OF AGREEMENT
Section 1.01. Definitions. Unless the context otherwise requires, capitalized terms used
herein and not defined herein shall have the meanings ascribed thereto in the Indenture.
Section 1.02. Term. This Agreement shall remain in full force and effect so long as the Bond
is Outstanding.
ARTICLE IL
THE LOAN; REPAYMENT
Section 2.01. The Loan.
(a) Terms of the Loan. The IVDA agrees to loan the proceeds of the Bond to the
Agency and in consideration therefore, the Agency agrees to pay the IVDA amounts equal to the
principal and interest coming due on the Loan as and when due as provided in the Indenture. The Loan
shall be in the amount equal to the "Inland Valley Development Agency Revenue Bond, Series 2010
(CMB Infrastructure Investment Group V, LP — Agency Projects). Interest on the Loan shall be
computed on the basis of a 360-day year consisting of twelve 30-day months at the rate per annum,
payable quarterly on each January 1, April 1, July 1, and October 1 (each such date is defined herein as
an "Interest Payment Date"), commencing on April 1, 2011, as further provided in Section 2.1 of the
Indenture. The Loan shall mature and become payable, as follows:
Maturity Date Principal Interest Rate
October 1, 2016 $8,000,000 5.25%
The Loan shall bear interest at the rate of 5.25% per annum, accruing from and after each date of
funding of a portion of the total principal amount of the Bond as described in Section 2.1 of the
Indenture.
(b) Use of Proceeds. The Agency shall use the proceeds of the Loan to fund certain
public infrastructure located along "E" Street and Inland Center Drive within the City of San
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Bernardino and located within the Inland Valley Development Agency Redevelopment Project Area,
namely,the redesign and reconstruction of said streets, including but not limited to,landscaping, street
lights, upgraded signal lights, street improvements, upgrades to the entrances of the Inland Center
Mall, improvements in connection with the Omnitrans project for the sbX bus rapid-transit route,water
lines, sewer lines and storm drain improvements and other improvements (the "Improvements").
(c) Transfer of Proceeds of the Loan. The proceeds of the Loan shall be disbursed
in accordance with the disbursements set forth in Section 2.3(b)(2) of the Indenture. Payment of the
proceeds of each Tranche shall be made directly to the Agency from the Bondholder as further
provided in Section 2.3(b)(2)of the Indenture.
Section 2.02. Repayment of the Loan. The Agency hereby agrees to pay to the IVDA the
Agency Surplus Revenues in an amount required to pay interest and/or principal equal to the amount
thereof coming due on each Interest Payment Date or Maturity Date under the Indenture, less amounts
already on deposit with the IVDA for such payment. The Loan shall be repaid in the amounts and at
the times as provided in the Indenture. The terms of prepayment and late payments penalties shall be
the same as said terms under Sections 2.4 of the Indenture. All payments required by the Agency
hereunder shall be the absolute obligations of the Agency, not subject to deduction or offset of any
kind.
Section 2.03. Source of Repayment. The Loan shall be paid from Agency Surplus Revenues,
consisting of tax increment revenues derived from the Agency's Southeast Industrial Project Area after
the payment of debt service on all currently outstanding tax allocation bonds secured by the tax
increment revenues of said project area, including the refunding thereof, and all future tax allocation
bonds issued by the Agency or on behalf of the Agency and secured by said tax increment revenues as
provided in the indenture(s) authorizing the issuance of said debt. As of the date hereof, the senior
indebtedness outstanding for the Southeast Industrial Project Area is Upon completion
of the adoption and approval of the Merger A which is currently in process, the tax increment revenues
of the Merger A shall automatically be pledged to the repayment of the Bond on a basis subordinate to
any existing or subsequently issued municipal bond sold through judicial underwriting vehicles.
ARTICLE III.
MISCELLANEOUS
Section 3.01. Amendment. The provisions of this Agreement may be amended only upon the
written approval of the parties hereto and the Bondholder, which approval shall not be unreasonably
withheld.
Section 3.02. Beneficiaries of Agreement. The Bondholder is expressly recognized as third
parry beneficiary hereto. Nothing in this Agreement, expressed or implied, is intended to give to any
person other than the Agency and IVDA, as parties hereto, and the Bondholder, as third party
beneficiary hereof, any right, remedy or claim under or by reason of this Agreement. Any covenants,
stipulations, promises or agreements in this Agreement contained by and on behalf of the Agency and
IVDA or any member, officer or employee thereof shall be for the sole and exclusive benefit of the
Agency and IVDA as parties hereto and the Bondholder as third party beneficiary hereof.
3
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CDC/2010-53
IN WITNESS WHEREOF, the Inland Valley Development Agency and the Redevelopment
Agency of the City of San Bernardino have caused this Agency Loan Agreement to be signed in their
name by their respective Executive Directors all as of the date and year first above written.
IVDA
Inland Valley Development Agency
By:
Interim Executive Director
ATTEST:
By:
Clerk of the Board
AGENCY
Redevelopment Agency of the City of
San Bernardino
By:
Emil A. Marzullo, Interim Executive Director
ATTEST:
By:
Secretary
5
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