HomeMy WebLinkAboutCC Resolution 8568 (Centertown Project)RESOLUTION NO. 8568
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL
AUTHORIZING THE CITY MANAGER TO EXECUTE
THE LIEN HOLDER'S CONSENT AGREEMENT
FOR THE CENTERTOWN PROJECT
The City of San Rafael, Marin County, California, hreinafter
referred to as "City" does hereby declare, find and determine
that:
1. WHEREAS, the City of San Rafael adopted Resolution
No.`8381 on May 6, 1991; and
2. WHEREAS, Resolution No. 8381 authorized the City Manager
to sign various agreement including a Promissory Note and
Deed of Trust recorded as Instrument 90-53573 and amended
by Instrument No. 91-041696 official records of the County
of Marin, State of California; and
3. WHEREAS, it has become necessary for the Bank of America
State Bank and Centertown Associates to modify the construc-
tion loan agreement between the bank and Centertown Asso-
ciates; and
4. WHEREAS, Bank of America State bank has requested the
consent of all lien holders to the modification of the
construction loan agreement; and
5. WHEREAS, the modification agreement does not change
the position, role or responsibility of the City of San
Rafael to the Bank of American State Bank or Centertown
Associates.
NOW, THEREFORE BE IT RESOLVED, that the City Council approves
and authorizes the City Manager of the City of San Rafael to
execute the Junior Lien Holder's Consent agreement in connec-
tion with Instrument No. 90-53573 and amended by Instrument
No. 91-041696, official records of the County of Marin,
State of California.
I, JEANNE M. LEONCINI, Clerk of the City of San Rafael,
hereby do certify that the foregoing resolution was duly
and regularly introduced and adopted at a regular meeting
of said City Council on the 18th day of November
1991, by the following vote, to wit:
AYES: COUNCILMEMBERS: Breiner, Shippey, Thayer & Mayor Roro
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: Cohen
JEAN %I . LEON NI , ity C er
•
JUNIOR LIEN HOLDER'S CONSENT
CITY OF SAN RAFAEL, CALIFORNIA, a public entity ("Junior Lien Holder") is the
owner and holder of a security interest ("Junior Security Interest") evidenced by a Deed of
Trust recorded on September 11, 1990, as Instrument No. 90-53573 as amended by the
Amendment to Deed of Trust dated May 6, 1991 and recorded July 8, 1991, as instrument
number 91-041696 in the Official Records of Marin County, State of California. The Junior
Security Interest is junior, subordinate and subject to the terms, covenants, conditions and
restrictions of the Deed of Trust described in the foregoing Modification Agreement. Junior
Lien Holder hereby consents to the terms and provisions of the Modification Agreement and
the transactions contemplated by it. Junior Lien Holder reaffirms the full force and
effectiveness of the Subordination Agreement dated May 6, 1991, between Junior Lien
Holder as Beneficiary and Borrower as Owner and aclmowledges that the Junior Security
Interest is junior, subordinate and subject to the Deed of Trust, as modified as of the date of
the Modification Agreement.
Date: November 18 . 1991 CITY OF SAN RAFAEL, CALIFORNIA
a public entity
Ik Tre: Pamela J. Nicolai
Title: City Manager
ATTEST:
Leoncinia��
.
Jean , City Clerk
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STATE OF CALIFORNIA )
) ss.
COUNTY OF MARIN )
On this 22nd day of NOVEMBZR 1991, before me, JEANNE M. LEONCINI, a
} Notary Public in and for the said County and State, residing therein, duly
commissioned and sworn, personally appeared PAMELA J. NICOLAI° ,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the City Manager of the City of San Rafael that executed the within
document and acknowledged to me that said City of San Rafael did execute the
same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year in this certificate first above written.
JEA N LEON I I , N �� +' r ter,=.�:=<<��� • �:;�; �:,,a,a {
n (� N (, in and for k;�_ `.='r w,���:
sal a �ounty an � hate. 4iy
1400 - 5th Ave., PA^Eax 60, San C;fuj, C?. S49i'i- Goo
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Bank of America State Bank
c/o Bank of America NT & SA
Real Estate Industries
Division No. 1387
315 Montgomery St., Suite 900
San Francisco, CA 94104
Attn.: Irene Alonzo -Perez
Loan No.: AFS #8619348958-18
Space above for Recorder's Use
MODIFICATION AGREEMENT
(Short Form)
This Modification Agreement ("Agreement") is made as of July 25, 1991, by
CENTERTOWN ASSOCIATES, LTD., a California limited partnership ("Borrower") and
Bank of America State Bank ("Bank").
Factual Background
A. Under a construction loan agreement (the "Loan Agreement") dated as of June 25,
1991, Bank agreed to make a construction loan (the "Loan") to Borrower.
B. The Loan is evidenced by a promissory note dated June 25, 1991, made payable to
Bank in the stated principal amount of $3,200,000.00 (the "Note"). The Note is
secured by a Construction Deed of Trust (the "Deed of Trust") dated as of June 25,
1991, executed by Borrower as trustor, to Continental Auxiliary Company, a
California corporation as trustee, for the benefit of Bank as beneficiary. The Deed of
Trust was recorded on July 8, 1991 in the Official Records of Marin County,
California as Instrument No. 91-041699. The Deed of Trust encumbers certain
property located in Marin County, California, as more particularly there described -
C. As used here, the term "Loan Documents" means the Loan Agreement, the Note, the
Deed of Trust, and any other documents which evidence, guaranty, secure or modify
the Loan, as any or all of them may have been amended to date.
D. Bank and Borrower have agreed to amend the Loan Documents as provided in a long
form Modification Agreement (the "Modification Agreement") of the same date as
this Agreement.
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Aereement
Therefore, Borrower and Bank agree as follows:
1. The Modification Agreement is incorporated in this Agreement by this reference, the
same as though set forth here in full.
2. The Loan Documents are amended on the terms and subject to the conditions of the
Modification Agreement.
CENTERTOWN ASSOCIATES, LTD.,
a California limited partnership
By: Centertown, Inc., a
California nonprofit public
benefit corporation,
its General Partner
A / ,
By: - - -I
Carol Galante, Vice President
Mary Murtagh, First Viez-President
BANK OF AMERICA STATE BANK,
a State Chartered Bank
By:
/ J. Keeley Kirkendall, Vice President
YOUR SIGNATURES MUST BE NOTARIZED
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Loan No. AFS ##8619348958-18
MODIFICATION AGREEMENT
(Long Form)
This Modification Agreement ("Agreement") is made as of July 25, 1991, by
CENTERTOWN ASSOCIATES, LTD., a California limited partnership ("Borrower"), and
Bank of America State Bank ("Bank").
Factual Backeround
A. Under a construction loan agreement (the "Loan Agreement") dated as of June 25,
1991, Bank agreed to make a construction loan (the "Loan") to Borrower.
B. The Loan is evidenced by a promissory note dated June 25, 1991, made payable to
Bank in the stated principal amount of $3,200,000.00 (the "Note"). The Note is
secured by a Construction Deed of Trust (the "Deed of Trust") dated as of June 25,
1991, executed by Borrower and the San Rafael Redevelopment Agency as trustor's
to Continental Auxiliary Company as trustee, for the benefit of Bank as beneficiary.
The Deed of Trust was recorded on July 8, 1991 in the Official Records of Marin
County, California as Instrument No. 91-041699. The Deed of Trust encumbers
certain property (the "Property") located in Marin County, California, as more
particularly there described.
C. BRIDGE HOUSING CORPORATION and ECUMENICAL ASSOCIATION FOR
HOUSING, each a California nonprofit public benefit corporation, have indemnified
and hold Borrower and Indemnified Parties, as described in the Environmental
Indemnity Agreement dated as of June 25, 1991 ("Indemnity Agreement"), harmless
from and against any and all Indemnified Costs (as defined in the Indemnity
Agreement).
D. As used here, the term "Loan Documents" means the Loan Agreement, the Note, the
Deed of Trust, and any other documents which evidence, guaranty, secure or modify
the Loan, as any or all of them may have been amended to date.
E. Borrower and Bank now wish to amend the Loan Documents in certain respects.
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Aereement
Therefore, Borrower and Bank agree as follows:
1. The recitals set forth above in the Factual Background are true, accurate and correct.
2. As of the date of this Agreement, the outstanding principal balance on the Note is
$53,200.00. The maximum principal, amount of the Loan available to Borrower is
$3,200,000.00, including the outstanding principal balance. Borrower reaffirms all
of its obligations on the Loan and acknowledges that it has no claims, offsets or
defenses with respect to the payment of sums due on the Note.
3. Borrower lawfully possesses and holds a leasehold estate to all of the Property which
is the land, an estate or interest in the buildings and improvements on the Property
for a term of years equal to and to run concurrently with the Lease Term, and the
Deed of Trust is a first and prior lien on that property. Borrower owns all of the
Property which is personal property free and clear of any security agreements,
reservations of title and conditional sales contracts. There is no financing statement
affecting any such personal property on file in any public office other than financing
statements in favor of Bank.
4. Before .this Agreement becomes effective and any party becomes obligated under it,
all of the following conditions must be satisfied at Borrower's sole cost and expense
in a manner acceptable to Bank in the exercise of its sole judgment:
a. Bank must receive such assurance as it may require that the validity and priority
of the Deed of Trust has not been and will not be impaired by this Agreement or
the transactions contemplated by it, including CLTA Endorsement No. 110.5 to
be attached to Title Policy No. 270773 dated July 8, 1991, issued by First
American Title Company.
b. Bank must receive fully executed originals of this Agreement, the attached
consents signed by BRIDGE HOUSING CORPORATION, a California nonprofit
public benefit corporation; ECUMENICAL ASSOCIATION FOR HOUSING, a
California nonprofit public benefit corporation; CALIFORNIA DEPARTMENT
OF HOUSING AND COMMUNITY DEVELOPMENT, a public agency of the
State of California; CITY OF SAN RAFAEL, CALIFORNIA, a public entity;
SAN RAFAEL REDEVELOPMENT AGENCY, a public body, corporate and
politic; MARIN COMMUNITY FOUNDATION, and COUNTY OF MARIN, the
short form of this Agreement and any other documents which Bank may require
or request in accordance with this Agreement or the other Loan Documents.
c. The short form of this Agreement must be recorded in the Official Records of the
County of Marin, California, as must all other documents which Bank may
require to be recorded.
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d. Bank must receive reimbursement, in immediately available funds, of all costs
and expenses incurred by Bank in connection with this Agreement, including title
insurance, recording and escrow charges, appraisal fees, and legal fees and
expenses of Bank's counsel (including, without limitation, allocated costs for
services of Bank's in-house counsel).
5. The Loan Documents are hereby modified as follows:
Paragraph 3a and 3b to Exhibit F to the Loan Agreement shall be deleted in its
entirety and shall be replaced as follows:
a. Disbursements of Certain Costs Not Requiring Retention
For each of line items 1, 10 through 21 and 23 of the cost breakdown, Bank shall
make one or more disbursements to Borrower or for its account in the amount
applied for in Borrower's Draw Request, without retention.
b. Disbursements of Hard Costs Requiring Retention: Construction Costs. Site Work
Costs and Off -Site Costs
Except as listed below, for each of the line items 2, and 4-8 of the cost
breakdown, Bank shall make periodic disbursements as construction progresses in
the amount of ninety percent (90%) of the invoiced cost of all work allocable to
that line item completed to the date of the Draw Request, less the aggregate
amount of any disbursements made from that line item prior to the date of the
Draw Request.
Bank shall retain the remaining undisbursed portions of these six line items until
all conditions to Bank's final disbursement have been satisfied. Except as
referenced below, the amount retained for each line item will be equal to
approximately ten percent (10%) of the Allocated Amount for that line item.
For the sub contract identified as line item X12 in Exhibit A to the Construction
Contract, Bank shall make periodic disbursements as construction progresses in
the amount of ninety percent (90%) of the invoiced cost of all work allocable to
that line item completed to the date of the Draw Request, less the aggregate
amount of any disbursement made from that line item prior to the date of the
Draw Request. Once all the work for line item #2 has been completed and Bank
has received a conditional lien release waiver for the entire contract amount of
$168,915, Bank may release the retention to Borrower. Borrower is responsible
for providing Bank with an unconditional lien waiver for $168,915 prior to Bank
making any additional disbursements from the Loan.
For the sub contracts listed below and identified as line items #9, 13, 15 and 16
in Exhibit A to the Construction Contract, Bank shall make periodic
disbursements as construction progresses in the amount of ninety five percent
(95%) of the invoiced cost of all work allocable to that line item completed to the
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date of the Draw Request, less the aggregate amount of any disbursements made
from that line item prior to the date of the Draw Request:
*Line item #:
Purpose:
Amount:
9 Structural Concrete
331,830
13 Rough Carpentry
1,012,438
15 Finish Carpentry
103,965
16 Existing Slab Prep
12,930
Once line item #9 of the Exhibit A to the Construction Contract has been
completed, and Bank has received a conditional lien release waiver for the entire
contracted amount of $331,830, Bank may release the retention to Borrower.
Borrower is responsible for providing Bank with an unconditional lien waiver for
$331,830 prior to Bank making any additional disbursements from Loan.
For the sub contracts listed below and identified as line items 1, 8, 14, 17, 23,
25, 26, 30, a portion of 35, 36 and 37 in Exhibit A to the Construction Contract,
Bank shall make periodic disbursements as construction progresses in the amount
of one hundred percent (100%) of the invoiced cost of all work allocable to that
line item completed to the date of the Draw Request, less the aggregate amount of
any disbursements made from that line item prior to the date of the Draw
Request.
*Line item #:
Purpose:
Amount:
1
Construction Survey
5,000
8
Drilled Caissons, Concrete &
Rebar
98,200
14
Scaffold Rental
35,200
17
Carpentry Debri Disposal
12,000
23
Roof Accessories
5,395
25
Millwork & Doors
56,243
26
Alum. Window & Doors
43,780
30
Finish Hardware & Bath
Accessories
40,300
35
Specialties: Access Doors &
Knox box
4,000
36
Fire Ext. & Mail Boxes
5,863
37
Appliances
63,244
* Line item numbers
per Exhibit A to Construction Contract.
Bank will require conditional lien releases from the subcontractors for line items
2, 8, 9, 13 and 15 of Exhibit A to the Construction Contract at the time Borrower
submits a Draw Request, and Bank will require an unconditional lien release from
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that subcontractor prior to (lie next Loan disbursement.
Once these line items 1, 14, 16, 17, 23, 25, 26, 30, 35, 36 and 37 of Exhibit A
to the Construction Contract are ninety percent (90%) disbursed, Borrower will
be required to provide Bank with a conditional lien release from the subcontractor
each time Borrower submits a Draw Request involving those line items. Bank
will require an unconditional line release from that subcontractor prior to the next
Loan disbursement.
6. This Agreement shall form a part of each Loan Document, and all references to a
given Loan Document shall mean that document as hereby modified. The Deed of
Trust secures the Loan as hereby modified, in addition to all other obligations stated
in the Deed of Trust to be secured thereby.
7. This Agreement shall not prejudice any rights or remedies of Bank under the Loan
Documents, as hereby amended. Bank reserves, without limitation, all rights which
it has against any guarantor or endorser of the Note.
S. Except as specifically hereby amended, the Loan Documents shall each remain
unaffected by this Agreement and the Loan Documents shall all remain in full force
and effect. Nothing in this Agreement shall impair the lien of the Deed of Trust,
which as hereby amended shall remain one deed of trust with one power of sale,
creating a first lien encumbering the Property.
9. The Loan Documents, including this Agreement (a) integrate all the terms and
conditions mentioned in or incidental to the Loan Documents, (b) supersede all oral
negotiations and prior and other writings with respect to their subject matter, and (c)
are intended by the parties as the final expression of the agreement with respect to
the terms and conditions set forth in the Loan Documents and as the complete and
exclusive statement of the teens agreed to by the parties. If there is any conflict
between the terms, conditions and provisions of this Agreement and those of any
other agreement or instrument, including any of the other Loan Documents, the
terms, conditions and provisions of this Agreement shall prevail.
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10. This Agreement and any attached consents or exhibits requiring signatures may be
executed in counterparts, and all counterparts shall constitute but one and the same
document. If any court of competent jurisdiction determines any provision of this
Agreement or any of the other Loan Documents to be invalid, illegal or
unenforceable, that portion shall be deemed severed from the rest, which shall
remain in full force and effect as though the invalid, illegal or unenforceable portion
had never been a part of the Loan Documents. This Agreement shall be governed by
California law.
CENTERTOWN ASSOCIATES, LTD.,
a California limited partnership
By: Centertown, Inc., a
California nonprofit public
benefit corporation,
its General Partner
By:
Carol GaliantL, Vice President
Mary Murtagh, President
BANK OF AMERICA STATE BANK,
a State Chartered Bank
J. Keeley Kirkendall, Vice President
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INDEMNITORS CONSENT
BRIDGE HOUSING CORPORATION and ECUMENICAL ASSOCIATION FOR
HOUSING, each a California nonprofit public .benefit corporation, (collectively referred to as
"Indemnitors") hereby consent to the terms, conditions and provisions of the foregoing
Modification Agreement and the transactions contemplated by it. Indemnitors hereby
reaffirm the full force and effectiveness of its Environmental Indemnity Agreement dated as
of June 25, 1991, as well as its acknowledgment that its obligations under that Environmental
Indemnity Agreement are separate and distinct from those of Borrower on the Loan.
Date: , 1991 BRIDGE HOUSING CORPORATION,
a California nonprofit public
benefit corporation
By:
Carol Galante, Vice President
ECUMENICAL ASSOCIATION FOR
HOUSING, a California nonprofit public
benefit corporation
By:
Mary Murtagh, Executive Director
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