HomeMy WebLinkAboutReso 211-03 Amd#1EdenHousing RESOLUTION NO. 211 - 03
A RESOLUTION OF THE CITY COUNCIL
OF THE cITY OF DUBLIN
AUTHORIZING AMENDMENT NO. 1
TO THE PREDEVELOPMENT LOAN WITH EDEN HOUSING, INC.
WHEREAS, the City Council finds that there is a severe shortage in the City of Dublin of housing
affordable to lower-income seniors; and
WHEREAS, development of affordable senior housing in close proximity to the senior center will
serve a public purpose; and
WHEREAS, the City Council selected Eden Housing, Incorporated to develop affordable senior
housing at 7606 Amador Valley Boulevard; and
WHEREAS, Eden Housing, Inc. will need funds to prepare for construction utilizing awarded 9%
tax credits; and
WHEREAS, it is now necessary for Eden HOusing, Incorporated to secure additional funds to
continue predevelopment work; and
WHEREAS, the City of Dublin is willing and able to provide financing for the predevelopment
work on the senior housing site.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin, a
Municipal Corporation, approves Amendment No. 1 to the Predevelopment Loan Agreement with Eden
Housing, Incorporated in the amount of Three hundred, fourteen thousand, five hundred and sixty dollars
and no cents ($314,560), attached hereto as Attachment 1A for the purposes of predevelopment work on
a senior housing project at 7606 Amador Valley Boulevard and authorizes the Mayor to execute such
document substantially in the form attached hereto.
FURTHER RESOLVED that the City Council approves the Amended and Restated Promissory
Note for a total of Five hundred Ninety-Four Thousand, Five Hundred and Sixty Dollars ($594,560),
attached hereto as Attachment lB.
FURTHER RESOLVED that the City Council approves the Amendment to Collateral
Assignment of Architect's Contract attached hereto as Attachment 1 C, and Amendment to Assignment
of Agreements, Plans, Specifications and Approvals attached here.to as Attachment 1D, and authorizes
the Mayor to execute such documents substantially in the forms attached hereto.
PASSED, APPROVED, AND ADOPTED this 21st day of October 2003.
AYES: Councilmembers McCormick, Omvetz, Sbranti and Mayor Lockhart
NOES: None
ABSENT: Councilmember Zika
ABSTAIN: None
ATTEST:
"-~ 'L (/jcitY Cl~k
Ka/G/10-21-03/reso-¢d~a~s~g.do¢ (Item 7.6)
Mayor
AMENDMENT NUMBER 1 TO PREDEVELOPMENT LOAN AGREEMENT
This Amendment to Predevelopment Loan Agreement (this "Amendment") is
entered into effective as of ., 2003, ("Effective Date") by and between
Eden Housing, Inc., a California nonprofit public benefit corporation ("Borrower") and
the City of Dublin, a public body, corporate and politic ("City"). Borrower and City are
hereafter collectively referred to as the Parties. Capitalized terms used but not defined
herein shall have the meaning ascribed to such terms in the Loan Agreement (as
defined below).
WHEREAS, the Parties entered into that certain Predevelopment Loan
Agreement dated as of February 4, 2003 ("Loan Agreement") pursuant to which the
City agreed to provide a loan ("Loan") to Borrower in the maximum principal amount of
Two Hundred Eighty Thousand Dollars ($280,000) for the purpose of funding certain
activities undertaken in connection with the development of affordable housing for Iow-
income senior households (the "Project");
WHEREAS, to secure repayment of the Loan, Borrower executed and delivered
to City a Collateral Assignment of Architect's Contract and an Assignment of
Agreements, Plans, Specifications and Approvals (collectively, "Assignment
Agreements");
WHEREAS, Borrower has requested, and City has agreed to increase the
maximum principal amount of the Loan by the additional sum of [Three Hundred
Fourteen Thousand Five Hundred and Sixty Dollars ($314,560) to a total of Five
Hundred Ninety-Four Thousand Five Hundred and Sixty Dollars ($594,560)] in
order to fund additional Project development activities through the date of closing for
construction financing for the Project;
WHEREAS, to reflect the foregoing increase in the amount of the Loan,
concurrently with this Amendment: (i) Borrower shall execute an Amended and
Restated Promissory Note ("Restated Note"), and (ii) Borrower and City shall execute
an amendment to each of the Assignment Agreements; and
WHEREAS, the Parties desire to amend the Loan Agreement to reflect the
foregoing.
NOW THEREFORE, in consideration of the mutual covenants of the Parties and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby agree as follows.
1. Each reference in the Loan Agreement to the Note shall be a reference to
the Restated Note as such may be hereafter amended or modified.
2. Each reference in the Loan Agreement to the Assignment Agreements
shall be a reference to the Assignment Agreements as amended as the same may
hereafter be amended or modified.
666680-1 1 ATTACHMENT lA
3. Upon Borrower's execution and delivery of this Amendment, the Restated
Note and the amendments to the Assignment Agreements, and Borrower's satisfaction
of the conditions set forth in Section 1.4.1 of the Loan Agreement, the City shall
disburse the Loan Proceeds generally in the amounts and for the items set forth in the
Budget attached hereto as Exhibit A unless the City Manager or his designee provides
written approval for a different use of the funds.
4. All other provisions of the Loan Agreement shall remain unchanged and in
full force and effect.
5. This Amendment may be executed in counterparts, each of which shall
constitute an original and all of which taken together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the Parties have executed this Amendment as of the
date first written above.
EDEN HOUSING, INC.
By:
Linda Mandolini,
Executive Director
CITY OF DUBLIN
By:
Its:
Approved as to form:
City Attorney
666680-1 2 ATTACHMENT lA
DUBLIN SENIOR HOUSING
Predevelopment / Preconstruction Budget
Update - October 15, 2003
TOTAL PREDEV LOA. COMPO.E.
I~UDGET BUDGET ToTCAC Submitta To Construction Star
Draws to Date 10.15.03
LAND & IMPROVEMENTS:
Site Acquisition 0 0 0
Relocation 0 0 0
Site Demolition 0 0 0
Site Maintenance (i.e. Security, Clean-Up) 0 0 0
Site Value Beyond Cost 0 0 0
Total Land & Improv 0 0 0
CONSTRUCTION CONSULTANTS:
Architect & Engineering 299,043 73,900 225,143
Construction Management/Cost Estimating Services 18,000 7,043 10,957
Engineering Reports (i.e. Topo, Acoustics, Soils Report) 12,275 0 12,275
Environmental 7,725 7,725 0
Testing & Inspection 0 0
Total Constr Consult 337,043 88,668 248,375
CONSTRUCTION:
Off-Sita Improvements 0 0 0
On-Sita Improvements 0 0 0
Podium Structure 0 0 0
Unit Construction 0 0 0
Joint Trench + Extras 0 0 0
Contractors Bond 0 0 0
Furniture, Fixtures & Equipment (common area) 0 0 0
Construction Contingency 0 0 0
Total Constr 0 0 0
SOFT COSTS:
Permits & Fees 100,000 0 100,000
Legal Fees 8,000 3,322 4,678
Audit Fees 0 0 0
Sponsor Administration 50,000 37,500 12,500
Sponsor/GP Contribution 0 0 0
Sponsor Net Worth Requirement 0 0
Sponsor Operating Guarantee 0 0 0
Market Study 8,000 8,000 0
Consultant Fees-Other 0 0 0
Services Reserve 0 0 0
Leasing and Other Reserves: 0 0 0
Rent/Up Marketing 0 0 0
TCAC Reserves 0 0 0
Initial Project Reserves 0 0 0
Soft Costs Contingency 16,815 389 16,426
Total Indirect Costa 182,815 49,21'1 '133,604
FINANCE & CARRYING COSTS:
Liability/COC Insurance 1,000 0 1,000
Taxes 0 0 0
Construction Loan Points 0 0 0
Permanent Financing Points 16,016 0 16,016
AHP Points 0 0 0
Acquisition Loan Fees 0 0 0
Interim Acquisition Loan Interest 0 0 0
Title, Escrow & Other Financing Fees 0 0 0
Lender-Appraisal, Legal & Consulting 10,000 2,650 7,350
Construction Loan Interest 0 0 0
Total Fin & Carry Costs 27,0'16 2,650 24,366
TAX CREDITS/SYNDICATION EXPENSES:
Tax Credit Expenses: 0 0, 0
TCAC Application Fee 2,000 2,000 0
TCAC Reservation/Allocation Fee 0 0 0
TCAC Deposit 31,686 0 31,686
TCAC Monitoring Fee 0 0 0
TCAC Deposit Refund 0 0 0
Syndication Consultant .10,000 300 9,700
Syndication Legal Fees 4,000 0 4,000
Syndication-Investor Legal 0 0 0
Syndication Other: Bridge Loan Fees 0 I 0 0 '
Syndication Other: Bridge Loan/Dev Fee Interest 0 0 0
Total TCAC/Synd 47,686 2,300 45,386
TOTAL DEVELOPMENT EXPENSES I 594,560 ~ ~42,829 ~ 45~,731
Eden Housing, Inc.
409 Jackson Street
Hayward, CA 94544
(510) 582-1460
lO, 6, oo3 EXHIBIT
TCAC @ 54 predevprecon 10.15.03
AMENDED AND RESTATED PROMISSORY NOTE
$[594,560]
Dublin, California
,. 2003
FOR VALUE RECEIVED, Eden Housing, Inc., a California nonprofit public
benefit corporation ("Borrower"), promises to pay to the City of Dublin, a public body
corporate and politic ("City"), in lawful money of the United States of America, the
principal sum of [Five Hundred Ninety-Four Thousand Five Hundred and Sixty
Dollars ($594,560)] or so much thereof as may be advanced by City from time to
time pursuant to the Loan Agreement referred to below, together with interest on the
outStanding principal balance at an annual rate equal to five percent (5%) per
annum, in the manner provided below. Interest shall be calculated on the basis of a
year of 365 days, and charged for the actual number of days elapsed.
This Amended and Restated Promissory Note (this "Note") has been
executed and delivered pursuant to and in accordance with the terms and conditions
of a Predevelopment Loan Agreement dated as of February 4, 2003, by and
between Borrower and City (the "Original Loan Agreement") as amended by an
Amendment to Predevelopment Loan Agreement dated as of the date hereof and
executed by and between Borrower and City (as so amended, the "Loan
Agreement"), and is subject to the terms and conditions of the Loan Agreement,
which are by this reference incorporated herein and made a part hereof. Capitalized
terms used but not defined herein shall have the meaning ascribed to such terms in
the Loan Agreement.
This Note is secured by an Assignment of Agreements, Plans, Specifications
and Approvals and a Collateral Assignment of Architect's Contract, each dated as of
February 4, 2003 and executed by Borrower as Assignor in favor of City, and each
as amended by instrument dated as of the date hereof (as so amended, collectively,
hereafter, the "Assignment Agreements"). City shall be entitled to the benefits of
the security provided by the Assignment Agreements and shall have the right to
enforce the covenants and agreements of Borrower contained in the Loan
Agreement.
1. PAYMENTS
1.1 MATURITY DATE. The entire principal balance outstanding
under this Note, together with interest accrued thereon, shall be due and payable in
one lump sum on the fifth (5th) anniversary of the date first written above ("Maturity
Date") unless the City forgives this Note pursuant to the terms and conditions set
forth in Section 1.4.3 of the Loan Agreement; provided however, the Parties agree
that if the City provides construction and/or permanent financing for the Development
prior to the Maturity Date, the outstanding balance of the Loan shall be repaid with
the proceeds of such financing on the date such financing is provided.
ATTACHMENT lB
1.2 PREPAYMENT. Borrower may, without premium or penalty, at
any time and from time to time, prepay all or any portion of the outstanding principal
balance due under this Note, provided that each such prepayment is accompanied
by accrued interest on the amount of principal prepaid calculated to the date of such
prepayment. Prepayments shall be applied first to any unpaid late charges and
other costs and fees then due, then to accrued but unpaid interest, and then to
principal. In no event shall any amount due under this Note become subject to any
rights of offset, deduction or counterclaim on the part of Borrower.
1.3 MANNER OF PAYMENT. All payments of principal and interest on this
Note shall be made by certified or bank cashier's check to City at 100 Civic Plaza,
Dublin, California 94568 or such other place as City shall designate to Borrower in
writing, or by wire transfer of immediately available funds to an account designated
by City in writing.
2. DEFAULTS
2.1. EVENTS OF DEFAULT. The occurrence of any one or more of
the following events shall constitute an event of default hereunder ("Event of
Default"):
(a) If Borrower shall fail to pay when due the principal and
interest payable hereunder and such failure continues for fifteen (15) days after City
notifies Borrower thereof in writing.
(b) If, pursuant to or within the meaning of the United States
Bankruptcy Code or any other federal or state law relating to insolvency or relief of
.debtors ("Bankruptcy Law"), Borrower shall (i) commence a voluntary case or
proceeding; (ii) consent to the entry of an order for relief against it in an involuntary
case; (iii) consent to the appointment of a trustee, receiver, assignee, liquidator or
similar official; (iv) make an assignment for the benefit of its creditors; or (v) admit in
writing its inability to pay its debts as they become due.
(c) If a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that (i) is for relief against Borrower in an
involuntary case, (ii) appoints a trustee, receiver, assignee, liquidator or similar
official for Borrower or substantially all of Borrower's assets, or (iii) orders the
liquidation of Borrower, and in each case the order or decree is not dismissed within
60 days.
(d) If Borrower sells, transfers, conveys or assigns,
hypothecates, rents, leases or licenses the Development or the Property, or any part
thereof or interest therein without prior written consent of City except as may be
expressly permitted pursuant to the Loan Agreement.
(e) If Borrower shall default in the performance of any other
term or covenant contained in the Loan Agreement and such default remains
uncured following the expiration of any applicable cure period.
ATTACHMENT lB
2.2. NOTICE BY BORROWER. Borrower shall notify City in writing
within five days after the occurrence, of any Event of Default of which Borrower
acquires knowledge.
2.3. REMEDIES. Upon the occurrence of an Event of Default
hereunder, City may, at its option (i) by written notice to Borrower, declare the entire
unpaid principal balance of this Note, together with all accrued interest thereon,
immediately due and payable regardless of any prior forbearance, (ii) exercise any
and all rights and remedies'available to it under applicable law, and (iii) exercise any
and all rights and remedies available to City pursuant to the Loan Agreement or the
Assignment Agreements. Borrower shall pay all reasonable costs and expenses
incurred by or on behalf of City including, without limitation, reasonable attorneys'
fees, incurred in connection with City's enforcement of this Note and the exercise of
any or all of its rights and remedies hereunder.
2.4. DEFAULT RATE. During any time that Borrower is in default
under this Note, interest shall automatically be increased without notice to the rate of
ten percent (10%) per annum (the "Default Rate").. When Borrower is no longer in
default, the Default Rate shall no longer apply, and the interest rate shall once again
be the rate specified in the first paragraph of this Note. Notwithstanding the
foregoing provisions, if the interest rate charged exceeds the maximum legal rate of
interest, the rate shall be the maximum rate permitted by law. The imposition or
acceptance of the Default Rate shall in no event constitute a waiver of a default
under this Note or prevent City from exercising any of its other rights or remedies.
3. MISCELLANEOUS
3.1. WAIVER. The rights and remedies of City under this Note shall
be cumulative and not alternative. No waiver by City of any right or remedy under
this Note shall be effective unless in a writing signed by City. Neither the failure nor
any delay in exercising any right, power or privilege under this Note will operate as a
waiver of such right, power or privilege, and no single or partial exercise of any such
right, power or privilege by City will preclude any other or further exercise of such
right, power or privilege or the exercise of any other right, power or privilege. To the
maximum extent permitted by applicable law (a) no claim or right of City arising out
of this Note can be discharged by City, in whole or in part, by a waiver or
renunciation of the claim or right unless in a writing, signed by City; (b) no waiver that
may be given by City will be applicable except in the specific instance for which it is
given; and (c) no notice to or demand on Borrower will be deemed to be a waiver of
any obligation of Borrower or of the right of City to take further action without notice
or demand as provided in this Note. Borrower hereby waives presentment, demand,
protest, notices of dishonor and of protest and all defenses and pleas on the grounds
of any extension or extensions of the time 'of payment or of any due date under this
Note, in whole or in part, whether before or after maturity and with or without notice.
3.2. NOTICES. Any notice required or permitted to be given
hereunder Shall be given in accordance with Section 5.3 of the Loan Agreement.
3.3. SEVERABILITY. If any provision in this Note is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of this
Note will remain in full force and effect. Any provision of this Note held invalid or
6666ss-~ 3 ATTACHMENT lB
unenforceable only in part or degree will remain in full force and effect to the extent
not held invalid or unenforceable.
3.4 GOVERNING LAW. This Note shall be governed by the laws of
the State of California without regard to principles of conflicts of laws. All, persons
and entities in any manner obligated under this Note consent to the jurisdiction of
any federal or state court within California having proper venue.
3.5 PARTIES IN INTEREST. This Note shall bind Borrower and its
successors and assigns and shall accrue to the benefit of City and its successors
and assigns.
3.6 SECTION HEADINGS, CONSTRUCTION, The headings of
Sections in this Note are provided for convenience only and will not affect its
construction or interpretation.
3.7 RELATIONSHIP OF THE PARTIES. The relationship of
Borrower and City under this Note is solely that of borrower and lender, and the loan
evidenced by this Note and secured by the Assignment Agreements will in no
manner make City the partner or joint venturer of Borrower.
3.8 TIME IS OF THE ESSENCE. Time is of the essence with
respect to every provision of this Note.
IN WITNESS WHEREOF, Borrower has executed and delivered this Note as
. of the date first written above.
BORROWER
Eden Housing, Inc., a California nonprofit
public benefit corporation
By:
Linda Mandolini
Executive Director
ATTACHMENT lB
AMENDMENT TO COLLATERAL ASSIGNMENT OF ARCHITECT'S CONTRACT
This Amendment to Collateral Assignment of Architect's Contract (this
"Amendment") is entered into effective as of ., 2003 ("Effective Date") by
and between Eden Housing, Inc., a California nonprofit public benefit corporation
("Assignor") and the City of Dublin, a public body, corporate and politic (hereafter "City"
or "Assignee"). Assignor and City are hereafter collectively referred to as the Parties.
Capitalized terms used but not defined herein shall have the meaning ascribed to such
terms in the Assignment Agreement (as defined below).
WHEREAS, the Parties entered into that certain Collateral Assignment of
Architect's Contract dated as of February 4, 2003 ("Assignment Agreement")
pursuant to which Assignor assigned to City certain rights as security for Assignor's
obligations under a Promissory Note executed by Assignor in favor of City and a
Predevelopment Loan Agreement by and between Assignor and City, each dated as of
the date of the Assignment Agreement;
WHEREAS, concurrently with this Amendment, Assignor and City shall execute
(i) an Amended and Restated Promissory Note ("Restated Note"), and (ii) an
Amendment to Predevelopment Loan Agreement ("Loan Agreement Amendment")
each of which shall reflect an increase in the funds loaned to Assignor by City; and
WHEREAS, the Parties desire to amend the Assignment Agreement to reflect
the foregoing.
NOW THEREFORE, in consideration of the mutual covenants of the Parties and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby agree as follows.
1. Each reference in the Assignment Agreement to the Promissory Note shall
be a reference to the Restated Note as such may be hereafter amended or modified.
2. Each reference in the Assignment Agreement to the Predevelopment
Loan Agreement shall be a reference to the Predevelopment Loan Agreement as
amended by the Loan Agreement Amendment, as the same may hereafter be amended
or modified.
3. All other provisions of the Assignment Agreement shall remain unchanged
and in full force and effect.
4. This Amendment may be executed in counterparts, each of which shall
constitute an original and all of which taken together shall constitute one and the same
instrument.
1 ATTACHMENT lC
IN WITNESS WHEREOF, Assignor, Assignee and Architect haVe duly executed
this Assignment, as of the date first above written.
ASSIGNOR:
EDEN HOUSING, INC.
By:
Name:
Title:
ASSIGNEE:
CITY OF DUBLIN
By:
Name:
Title:
Approved as to form:
City Attorney
ARCHITECT:
By:
Name:
Title:
666692-1
2
AMENDMENT TO ASSIGNMENT OF AGREEMENTS, PLANS, SPECIFICATIONS
AND APPROVALS
This Amendment to Assignment of Agreements, Plans, Specifications and
Approvals (this "Amendment") is entered into effective as of ,2003
("Effective Date") by and between Eden Housing, Inc., a California nonprofit public
benefit corporation ("Assignor") and the City of Dublin, a public body, corporate and
politic (hereafter "City" or "Assignee"). Assignor and City are hereafter collectively
referred to as the Parties. Capitalized terms used but not defined herein shall have the
meaning ascribed to such terms in the Assignment Agreement (as defined below).
WHEREAS, the Parties entered into that certain ASsignment of Agreements,
Plans, Specifications and Approvals dated as of February 4, 2003 ("Assignment
Agreement") pursuant to which Assignor assigned to City certain rights as security for
Assignor's obligations under a Promissory Note executed by Assignor in favor of City
and a Predevelopment Loan Agreement by and between Assignor and City, each dated
as of the date of the Assignment Agreement;
WHEREAS, concurrently with this Amendment, Assignor and City shall execute
(i) an Amended and Restated Promissory Note ("Restated Note"), and (ii) an
Amendment to Predevelopment Loan Agreement ("Loan Agreement Amendment")
each of which shall reflect an increase in the funds loaned to Assignor by City; and
WHEREAS, the Parties desire to amend the Assignment Agreement to reflect
the foregoing.
NOW THEREFORE, in consideration of the mutual covenants of the Parties and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby agree as follows.
1. Each reference in the Assignment Agreement to the Promissory Note shall
be a reference to the Restated Note as such may be hereafter amended or modified.
2. Each reference in the Assignment Agreement to the Predevelopment
Loan Agreement shall be a reference to the Predeveiopment Loan Agreement as
amended by the Loan Agreement Amendment, as the same may hereafter be amended
or modified.
3. All other provisions of the Assignment Agreement shall remain unchanged
and in full force and effect.
4. This Amendment may be executed in counterparts, each of which shall
constitute an original and all of which taken together shall constitute one and the same
instrument.
ATTACHMENT 1D
IN WITNESS WHEREOF, Assignor and Assignee have duly executed this
Assignment, as of the date first above written.
ASSIGNOR:
EDEN HOUSING, INC.
By:
Name:
Title:
ASSIGNEE:
CITY OF DUBLIN
By:
Name:
Title:
Approved as to form:
City Attorney
666699-I 2