HomeMy WebLinkAboutStaff Report 2.E 03/06/2006CITY OF PETALUIIA, CALIFORNIA 2.E
Petaluma Community Development Commissia 2006
AGENDA BILL
March b,
Agenda Title: Discussion and Action to Authorize Modifications to Meetim! Date: March 6, 2006
the Storefront hnprovement Loan Program and Authorize the
Executive Director to Execute an Amendment to the Loan Mcctin2 Time: N 3:00 PM
Agreement to Provide a Loan of up to $40,000 for the Continued ❑ 7:00 PM
Restoration and Bistoric Preservation of 119 Petaluma Boulevard
North and Authorize Additional Budget
Catesory (check one): ® Consent Calendar ❑ Public Hearing ❑ New Business
❑ Unfinished Business ❑ Prelse,Iltation
Department:Director Contact Person: Phone Number:
Public Works I Vincc M� I Nick Panayotou 778-4587
Cost of Proposal: $40,000 Amendment to Lind Loan Agreement Account Number: 5510-P201010
$50,000 Remainder of Original Lind Loan Name of Fund: Central Business
Amount Budgeted: $150,000 Currently Authorized District Program Fund (5510)
Attachments to Agenda Packet Item:
1. Resolution
2. Amendment to Loan Agreement
Summary Statement: Four years ago, as part of the Petaluma Community Development Commission's
(PCDC) "Five-Year Implementation Plan," the Storefront Improvement Loan Program was initiated.
Under the program, property owners in the Central Business District (CBD) could borrow up to $25,000, at
low interest in order to make improvements to their storefronts. While the program had been repeatedly
marketed to the property owners, none had chosen to participate. To increase its marketability, PCDC
modified the program in 2004 to allow interest free loans of up to $200,000 for properties built prior to
1904 undertaking significant historic restoration.
On October 18, 2004, PCDC authorized a $200,000 loan to Stephen Lind, the owner of 119 Petaluma Blvd.
Due to increased construction costs and the potential condition of the historic face beneath the stucco
fagade of this property, Mr. Lind is requesting that his loan agreement be amended to make an additional
$40,000 available, in the event the project costs overrun the original budget. In order to execute an
amendment, it is necessary for the Storefront Improvement Loan Program to be modified to increase the
maximum loan amount allowed.
The purpose of this agenda item is to authorize a modification to the Storefront Improvement Loan
Program to increase the maximum loan amount to $240,000 for properties that were built before 1904,
where a property owner is undertaking significant reconstruction to restore the historic edifice for the first
time; and to authorize the executive director to execute an amendment to Mr. Lind's storefront
improvement loan agreement, making available an additional $40,000 for the continued first-time historic
renovation and preservation of 119 Petaluma Boulevard North; and to authorize additional budget to fund a
portion of the original loan and this amendment.
Recommended City Council ActionlSuQEested Motion: Adopt a resolution authorizing the modification
of the Storefront Improvement Loan Program and authorizing the Executive Director to execute an
amendment to the Loan Agreement and related documents with Stephen A. Lind, et al. and to authorize
additional budget.
(k2 icwed b Admin. Services: Reviewed by City Attorney: Annrovet11y))City Manager:
Datetgtl Date: % Date:
Today's Date: 1 Revision # and Date Revised: File Code:
February 24, 2006 # s\econdev\programs\stroerrom loan program
CITY OF PETALUM.A, CALIFORNIA,
Petaluma Community Development Commission
March b, 2006
AGENDA REPORT
FOR
DISCUSSION AND ACTION TO AUTHORIZE MODIFICATIONS TO THE STOREFRONT IMPROVEMENT LOAN
PROGRAM AND AUTHORIZE THE EXECUTIVE DIRECTOR'r0 EXECUTE AN AMENDMENT TO THE LOAN
AGREEMENT TO PROVIDE A LOAN OF UP TO $40,000 FOR THE CONTINUED RESTORATION AND HISTORIC
PRESERVATION OF 119 PETALUMA BOULEVARD NORTH AND AUTHORIZE ADDITIONAL BUDGET
EXECUTIVE SUMMARY:
Four years ago, as part of the Petaluma Community Development Commission's (PCDC) "Five -Year
Implementation Plan," the Storefront Improvement Loan Program was initiated. Under the program,
property owners in the Central Business District (CBD) could borrow up to $25,000, at low interest in
order to make improvements to their storefronts. While the program had been repeatedly marketed to
the property owners, none had chosen to participate. To increase its marketability, PCDC modified the
program in 2004 to allow interest free loans of up to $200,000 for properties built prior to 1904
undertaking significant historic restoration.
On October 18, 2004, PCDC authorized a $200,000 loan to Stephen Lind, the owner of 119 Petaluma
Blvd. Due to increased construction costs and the potential condition of the historic face beneath the
stucco fagade of this property, Mr. Lind is requesting that his loan agreement be amended to make an
additional $40,000 available, in the event the project costs overrun the original budget. In order to
execute an amendment, it is necessary for the Storefront Improvement Loan Program to be modified to
increase the maximum loan amount allowed.
The purpose of this agenda item is to authorize a modification to the Storefront Improvement Loan
Program to increase the maximum loan amount to $240,000 for properties that were built before 1904,
where a property owner is undertaking significant reconstruction to restore the historic edifice for the
first time; and to authorize the executive director to execute an amendment to Mr. Lind's storefront
improvement loan agreement, making available an additional $40,000 for the continued first-time
historic renovation and preservation of 119 Petaluma Boulevard North; and to authorize additional
budget to fund a portion of the original loan and this amendment.
2. BACKGROUND:
To increase the Program's marketability, on October 18, 2004, PCDC adopted a resolution modifying
the existing Storefront Improvement Loan Program for properties that were built before 1904, where a
property owner is undertaking significant reconstruction to restore the historic edifice for the first-time.
The following modifications were made:
o Property owners are eligible for storefront improvement loans up to 5200,000.
o The term of the loan is twenty years, after which it is payable in full.
o Applicants must have a good credit history.
o The loan is interest free.
o All work is performed at prevailing wage rates.
o If the property is sold during the term of the loan, the entire loan is due on sale.
2
o Repayment of the loan is secured by a deed of trust on the property.
On October 18, 2004, PCDC authorized a $200,000 loan to Stephen Lund, the owner of 119 Petaluma
Blvd., to remove the stucco face of the building and restore the original historic face beneath it. The
loan was structured so that the Agency would loan the first $100,000 of restoration work, Mr. Lind
would fund the next $50,000, and to the extent that restoration costs exceeded $150,000, the Agency
would loan additional funds of up to $100,000. Mr. Lind has subsequently detennined that, due to
increased construction costs and tine potential condition of the historic face beneath the stucco fagade,
the cost of restoration may exceed the $250,000 budget. He is requesting that an additional $40,000 in
loan money be made available in the event the project costs overrun the original budget. The proposed
amendment to the loan agreement is structured similarly to the original loan, where the Agency would
loan the first $20,000, Mr. Lind would fund the next $10,000, and to the extent that restoration costs
exceed the added $30,000, the Agency would loan additional funds of up to $20,000.
In order to execute this amendment, it is necessary for the Storefront Improvement Loan Program to be
modified to increase the maximum loan amount allowed. The proposed modification to the Storefront
Improvement Loan Program related to this agenda item is to increase the available loan amount up to
$240,000, keeping all remaining loan criteria in tact.
3, ALTERNATIVES:
A. Authorize the proposed amendment to the Storefront Improvement Loan Program, an
amendment to the Loan Agreement for 119 Petaluma Boulevard North, and additional budget:
Under this alternative, the PCDC would authorize the Executive Director to modify the Storefront
Improvement Loan Program in order to increase the maximum loan amount to $240,000 for
properties that were built before 1904, where a property owner is undertaking significant
reconstruction to restore the historic edifice for the first-time, would authorize the execution of an
amendment to the loan agreement and related documents with Stephen A. Lind in the amount of up
to $40,000 for the continued first-time restoration and historic preservation of 119 Petaluma
Boulevard North, and authorize additional budget.
B. Decline to Modify the Storefront Improvement Loan Program: Under this alternative, the
PCDC would maintain its current loan program and decline to loan additional funds for the
continued first-time restoration and historic preservation of 119 Petaluma Blvd. North,
4. FINANCIAL IMPACTS:
Program money is re -budgeted annually. $150,000 of the total value of $200,000 for the original "Lind"
loan is reauthorized in the FY 05/06 budget. Authorizing additional budget of $50,000 for the original
loan, plus $40,000 for the amendment will provide sufficient funding for historic preservation of 119
Petaluma Blvd. North.
5. CONCLUSION:
The PCDC's "Five -Year Implementation Plan" established the Storefront Improvement Loan Program
as a means of assisting downtown property -owners with the rehabilitation and restoration of storefronts.
The property -owner of 119 Petaluma Boulevard North is requesting additional PCDC financial
assistance, if needed, to complete the historical restoration of the edifice of the building. PCDC
authorization is required for the transaction. Approval of the additional assistance would ensure that this
building is restored as close to its original condition as practicable. Restoring 119 Petaluma Boulevard
3
North will make a significant impact on returning this block to the original historic aesthetic of
Downtown.
6. OUTCOMES OR PERFORMANCE MEASUREMENTS THAT WILL IDENTIFY SUCCESS OR COMPLETION:
With PCDC financial assistance, the edifice to 119 Petaluma Blvd. North will be restored by June 30,
2006.
RECOMMENDATION:
It is recommended that the PCDC adopt the attached resolution:
A. Authorizing the storefront improvement loan program to be modified to allow property
owners to be eligible for storefront improvement loans up to $240,000 for properties in the
Central Business District, keeping all other criteria of the October 18, 2004 modification in
tact.
B. Authorizing the Executive Director to execute an amendment to the Loan Agreement and
related documents with Stephen A. Lind, et al, pursuant to which, PCDC would provide an
additional loan in the amount of up to $40,000 for the purpose of the first time restoration
and historic preservation of the edifice to 119 Petaluma Blvd. North and authorize additional
budget.
11
Attachment 1
Resolution to Authorize Modifications to the Storefront
Improvement Loan Program, and Authorize the Executive
Director to Execute an Amendment to the Loan Agreement, to
Provide a Loan of up to $40,000 for the Continued Restoration
and Historic Preservation of 119 Petaluma Boulevard North,
and Authorize Additional Budget
5
RESOLUTION NO.2006-
PETALUMA COMMUNITY DEVELOPMENT COMMISSION
AUTHORIZING MODIFICATIONS TO THE STOREFRONT IMPROVEMENT LOAN PROGRAM,
AND AUTHORIZING EXECUTIVE DIRECTOR TO EXECUTE AN AMENDMENT TO THE LOAN
AGREEMENT TO PROVIDE A LOAN OF UP TO $40,000 FOR THE CONTINUED
RESTORATION AND HISTORIC PRESERVATION OF 119 PETALUMA BOULEVARD NORTH,
AND AUTHORIZE ADDITIONAL BUDGET
WHEREAS, the Petaluma Conmlunity Development Commission (PCDC) approved a "Five -Year
Implementation Plan" containing fimding for a Storefront Improvement Loan Program (the "Program"); and
WHEREAS, a property owner in the Central Business District has taken advantage of this program and
is now requesting continued financial assistance in order to complete the restoration and rehabilitation of his
building located at 119 Petaluma Blvd. North, Petaluma (the "Property"); and
WHEREAS, it is economically infeasible for the Property owner to undertake the continued restoration
and rehabilitation of the Property without Agency assistance; and
WHEREAS, the restoration and rehabilitation of the Property will eliminate blight in the Central
Business District redevelopment project area ("Project Area"), will be of benefit to the Project Area and the
City of Petaluma, and is consistent with the Redevelopment Plan for the Project Area (the "Plan"); and
WHEREAS, Stephan A. Lind, et al, owner of 119 Petaluma Blvd. North has requested an amendment
to the existing Storefront Improvement Loan Agreement in an amount up to $40,000 for the continued first-time
restoration and historic preservation of the building; and
WHEREAS, staff has determined that additional modifications to the Storefront Improvement Loan
Program and an amendment to the Loan Agreement for 119 Petaluma Boulevard are necessary in order to
accomplish the goals of the Program; and
WHEREAS, staff has determined that there is an existing authorized budget of $190,263, and
authorizing additional budget of $49,737 is necessary to close the funding gap for the original loan and fund this
amendment.
NOW THEREFORE BE IT RESOLVED by the Petaluma Community Development Commission:
A
The Storefront Improvement Loan Program is hereby modified to allow property owners to be eligible
for storefront improvement loans up to $240,000 for properties that were built before 1904 where a
property owner is undertaking significant reconstruction to restore the historic edifice for the first-time.
2. The Executive Director is authorized to execute an amendment to the existing Loan Agreement and
related documents, substantially in the form attached hereto, with Stephen A. Lind, et al, and to provide
a loan in the amount of up to $40,000 for the purpose of the continued first-time restoration and historic
preservation of the edifice to 119 Petaluma Blvd. North, and authorize additional budget.
Adopted this 27th day of February, 2006 by the following vote:
Commissioner Ave No Absent
Glass
Canevaro
Harris
Healy
Nau
O'Brien
Torliatt
David Glass, Chairperson
ATTEST:
Claire Cooper, Recording Secretary
■I
Attachment 2
Amendment to Loan Agreement
01
AMENDED AND RESTATED
SECURED PROMISSORY NOTE
$240,000
Petaluma, California
, 2006
FOR VALUE RECEIVED, Stephen A. Lind as Trustee of the Stephen A. Lind
1994 Trust dated August 29, 1994 and Elisabeth Dick, an individual formerly known as
Elisabeth Laveme Lind, (collectively hereinafter, the 'Borrower"), jointly and severally
promise to pay to the Petaluma Community Development Commission, a public body
corporate and politic ("Agency"), in lawful money of the United States of America, the
principal sum of Two Hundred Forty Thousand Dollars ($240,000) or so much thereof
as may be advanced by Agency from time to time pursuant to the terms of a certain
Loan Agreement referred to below, in accordance with the terms and conditions
described herein.
This Amended and Restated Secured Promissory Note (this "Note") has been
executed and delivered pursuant to and in accordance with the terms and conditions of
the Loan Agreement ("Original Loan Agreement"), by and between Borrower and
Agency dated as of December 3, 2004, as amended by an Amendment to Loan
Agreement dated as of the date hereof and executed by Borrower and Agency (as so
amended, hereafter, 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 in this Note without definition shall have the
meanings ascribed to such terms in the Loan Agreement.
This Note is secured by the Deed of Trust with Assignment of Leases and Rents,
Security Agreement and Fixture Filing dated as of December 3, 2004, ("Existing Deed
of Trust") executed by Borrower as Trustor, in favor of Agency as Beneficiary,
encumbering the real property described in the Existing Deed of Trust, as amended by
a First Amendment to Deed of Trust With Assignment of Leases and Rents, Security
Agreement and Fixture Filing dated as of the date hereof. The Existing Deed of Trust
as so amended is hereafter referred to as the "Deed of Trust". Agency shall be
entitled to the benefits of the security provided by the Deed of Trust and shall have the
right to enforce the covenants and agreements of Borrower contained herein, in the
Deed of Trust and in the Loan Agreement.
This Note amends and restates the terms of the note dated as of December 3,
2004 ("Existing Note") which was executed by Borrower and delivered to Agency
pursuant to the terms of the Original Loan Agreement. Prior to the date hereof, the
maximum principal amount of the Existing Note was $200,000. On the date hereof the
maximum principal amount of the Note is hereby increased to Two Hundred Forty
Thousand Dollars ($240,000). This Note is not in payment, novation, satisfaction or
cancellation of the indebtedness evidenced by the Existing Note, such indebtedness
evidenced thereby being hereby ratified and confirmed_
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02/09/2006 09:21 7077763675 CITY OF PETALUMA EDP. PAGE 02
PAYMENTS
1.1. PAYMENT DATES: MATURITY DATE. The entire outstanding
principal balance of this Note, together with all interest (if any) and all other sums
accrued hereunder shall be payable in full on the twentieth (20th) anniversary of the
date hereof ("Maturity Date"). Agency shall credit payments made under this Note first
to any unpaid late charges and other costs and fees then due, then to accrued but
unpaid interest (if any), and then to principal.
1.2_ DUE ON SALE The entire unpaid principal balance and all sums
accrued hereunder shall be immediately due and payable upon the Transfer (as defined
in Section 1.4 of the Loan Agreement) absent Agency consent, of all or any part of the
Property or Improvements, or any interest therein.
1.3_ 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. Prepayments shall be applied first to accrued but unpaid interest
and then to principal
1.4_ MANNER OF PAYMENT. All payments on this Note shall be made
to Agency by certified or bank cashier's check at 11 English Street, Petaluma, California
94952, or at such other place in the United States of America as Agency shall designate
to Borrower in writing or by wire transfer of immediately available funds to an account
designated by Agency 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 any sum payable
hereunder and such failure continues for ten (10) days after Agency 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 (i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for relief against Borrower in an involuntary case;
(iii) consents to the appointment of a trustee, receiver, assignee, liquidator or similar
official for Borrower; (iv) makes an assignment for the benefit of its creditors; or (v)
admits 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, (iii) orders the liquidation of Borrower, or (iv)
Petaluma - Lind Restated Note -00C 2 1 0
02/09/2006 09:21 7077763675 CITY OF PETALUMA EDR PAGE 03
issues or levies a judgment, writ, warrant of attachment or similar process against the
Property or the Project, and in each case the order or decree is not released, vacated,
dismissed or fully bonded within 60 days after its issuance.
(d) If an event of default has been declared by the holder of any
debt instrument secured by a mortgage or deed of trust on the Project or Borrower's
interest in the Property and such holder exercises a right to declare all amounts due
under that debt instrument immediately due and payable, subject to the expiration of
any applicable cure period set forth in such holder's documents.
(e) If the Borrower fails to maintain insurance on the Property
and the Project as required pursuant to the Loan Documents and Borrower fails to cure
such default within 15 days.
(f) Subject to Borrower's right to contest the following charges
pursuant to the Loan Documents, if the Borrower fails to pay taxes or assessments due
on the Property or the improvements located thereon, or fails to pay any other charge
that may result in a lien on the Property, and Borrower fails to cure such default within
15 days.
(g) If any representation or warranty contained in the Loan
Documents or any certificate furnished in connection with the Loan Documents or in
connection with any request for disbursement of Loan Proceeds proves to have been
false or misleading in any material adverse respect when made.
(h) If the Borrower defaults in the performance of any term,
provision, covenant or agreement (other than an obligation enumerated in this Section
contained in any Loan Document, and unless such document specifies a shorter
cure period for such default, the default continues for ten (10) days in the event of a
monetary default or thirty (30) days in the event of a nonmonetary default after the date
upon which Agency shall have given written notice of the default to Borrower (or such
longer time as Agency may agree upon in writing), provided that in each case Borrower
commences to cure the default within thirty (30) days and thereafter prosecutes the
curing of such default with due diligence and in good faith.
(i) If an Event of Default shall have been declared under any
other Loan Document subject to the expiration or any applicable cure period set forth in
such documents.
2.2. NOTICE BY BORROWER. Borrower shall notify Agency 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 (unless all Events of Default have been cured or waived by Agency), Agency
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 and all sums due
hereunder, immediately due and payable regardless of any prior forbearance, (ii)
Petaluma - Lind Restated Note- DOC
02/09/2006 09:21 7077763675 CITY OF PETALUMA EDP. PAGE 04
exercise any and all rights and remedies available to it under applicable law, including,
without limitation, the right to accelerate this Note and collect from Borrower all sums
due hereunder, and (iii) exercise any and all rights and remedies available to Agency
under this Note and the other Loan Documents, including without limitation the right to
pursue foreclosure under the Deed of Trust. Borrower shall pay all reasonable costs
and expenses incurred by or on behalf of Agency including, without limitation,
reasonable attorneys' fees, incurred in connection with Agency's enforcement of this
Note and the exercise of any or all of its rights and remedies hereunder and all such
sums shall be a part of the indebtedness secured by the Deed of Trust.
2.4. DEFAULT RATE. Upon the occurrence of an Event of Default,
interest shall automatically be increased without notice to the rate of ten percent (10%)
per annum (the "Default Rate"); provided however, if any payment due hereunder is not
paid when due, the Default Rate shall apply commencing upon the due date for such
payment. 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 Agency from exercising any of its other rights or
remedies.
3. MISCELLANEOUS
3.1. WAIVER. The rights and remedies of Agency under this Note shall
be cumulative and not alternative. No waiver by Agency of any right or remedy under
this Note shall be effective unless in a writing signed by Agency. 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 Agency 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 Agency arising out
of this Note can be discharged by Agency, in whole or in part, by a waiver or
renunciation of the claim or right unless in a writing, signed by Agency; (b) no waiver
that may be given by Agency 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 Agency 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 please 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 7.1 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
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will remain in full force and effect. Any provision of this Note held invalid or
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: VENUE. 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 in the jurisdiction in which the Property is located (the
"Property Jurisdiction"). Borrower agrees that any controversy arising under or in
relation to the Note or any other Loan Document shall be litigated exclusively in the
Property Jurisdiction. The state and federal courts and authorities with jurisdiction in the
Property Jurisdiction shall have exclusive jurisdiction over all controversies which shall
arise under or in relation to the Note and any other Loan Document. Borrower
irrevocably consents to service, jurisdiction, and venue of such courts for any such
litigation and waives any other venue to which it might be entitled by virtue of domicile,
habitual residence or otherwise.
3.5. PARTIES IN INTEREST. This Note shall bind Borrower and its
successors and assigns and shall accrue to the benefit of Agency 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. All references to "Section" or "Sections" refer to the
corresponding Section or Sections of this Note unless otherwise specified.
All words used in this Note will be construed to be of such gender or
number as the circumstances require. Unless otherwise expressly provided, the words
"hereof' and "hereunder" and similar references refer to this Note in its entirety and not
to any specific section or subsection hereof.
3.7. RELATIONSHIP OF THE PARTIES. The relationship of Borrower
and Agency under this Note is solely that of borrower and lender, and the loan
evidenced by this Note and secured by the Deed of Trust will in no manner make
Agency 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.
3.9 NONRECOURSE. Except as expressly provided in this Section
3_9, Borrower shall have no personal liability for repayment of this Note, and the sole
recourse of Agency with respect to the repayment of the principal of, and interest (if
any) on, the Note shalt be to the Property and the Improvements and any other
collateral held by Agency as security for this Note; provided however, nothing contained
in the foregoing limitation of liability shall:
Petaluma- Lind Restated Note -DOC 5 ��
(A) impair the enforcement against all such security for the Loan of all the
rights and remedies of the Agency under the Deed of Trust and any financing
statements Agency files in connection with the Loan as each of the foregoing may
be amended, modified, or restated from time to time;
(B) impair the right of Agency to bring a foreclosure action, action for
specific performance or other appropriate action or proceeding to enable Agency
to enforce and realize upon the Deed of Trust, the interest in the Property
created thereby and any other collateral given to Agency in connection with the
indebtedness evidenced by this Note, and to name the Borrower as party
defendant in any such action;
(C) be deemed in any way to impair the right of the Agency to assert the
unpaid principal amount of the Loan as a demand for money within the meaning
of Section 431.70 of the California Code of Civil Procedure or any successor
provision thereto;
(D) constitute a waiver of any right which Agency may have under any
bankruptcy law to file a claim for the full amount of the indebtedness owed to
Agency under this Note or to require that the Property and the Improvements
shall continue to secure all of the indebtedness owed to Agency in accordance
with this Note and the Deed of Trust; or
(E) limit or restrict the ability of Agency to seek or obtain a judgment
against Borrower to enforce against Borrower to:
(a) recover under Sections 4.8.4.13.2 or 4.15 of the Loan
Agreement (pertaining to Borrower's indemnification obligations), or
(b) recover from Borrower compensatory damages as well as other
costs and expenses incurred by Agency (including without limitation
attorney's fees and expenses) arising as a result of the occurrence of any
of the following:
(I) any fraud or material misrepresentation on the part of the
Borrower, any authorized representative of Borrower in connection
with the request for or creation of the Loan, or in any Loan
Document, or in connection with any request for any action or
consent by Agency in connection with the Loan;
(ii) any failure to maintain insurance on the Property as
required pursuant to the Loan Documents;
(iii) failure to pay taxes, assessments or other charges due
on the Property and Improvements;
(iv) the presence of hazardous or toxic material or waste on
the Property or other violation of the Borrower's obligations under
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OY70y/Gh06 09:21 1077763675 CITY OF PETALUMA EDR PAGE 07
Section 4.13 of the Loan Agreement or Section 7.11 of the Deed of
Trust (pertaining to environmental matters);
(v) the occurrence of any act or omission of Borrower that
results in waste to or of the Property or the Improvements and
which has a material adverse effect on the value of the Property or
the Improvements;
(vi) the removal or disposal of any personal property or
fixtures in violation of the Deed of Trust;
(vii) the material misapplication of the Loan Proceeds; or
(viii) the material misapplication of the proceeds of any
insurance policy or award resulting from condemnation or the
exercise of the power of eminent domain or by reason of damage,
loss or destruction to any portion of the Property or the
Improvements.
4. WAIVER OF TRIAL BY JURY. BORROWER AND AGENCY EACH (A) AGREE
NOT TO ELECT A TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS
NOTE OR THE RELATIONSHIP BETWEEN THE PARTIES AS LENDER AND BORROWER
THAT IS TRIABLE OF RIGHT BY A JURY, AND (B) WAIVE ANY RIGHT TO TRIAL BY JURY
WITH RESPECT TO SUCH ISSUE TO THE EXTENT THAT ANY SUCH RIGHT EXISTS
NOW OR IN THE FUTURE. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY
GIVEN BY EACH PARTY, KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF
COMPETENT LEGAL COUNSEL.
Petaluma - Lind Restated Note. DOG 7 15
02109{2006 09:21 7077763675 CITY OF PETALUMA EDR PAGE 0B
IN WITNESS WHEREOF, Borrower has executed and delivered this Note as of
the date first written above.
STEPHEN A. LIND 1994 TRUST
dated August 29, 1994
By:_ (Gr saw „ i Ct
Stephen A. Lind, Trustee
Elisabeth Dick
(formerly Elisabeth Laverne Lind)
APPROVED AS TO FORM:
Agency Counsel
Petaluma - Lind Restated Note.DQC 8 ' I _
02/09/2006 09:21 1077763675 CITY OF PETALUMA EDR PAGE 09
AMENDMENT TO LOAN AGREEMENT
This Amendment to Loan Agreement (this "Amendment") is entered into
effective as of . 2006, ("Effective Date") by and among Stephen A.
Lind as Trustee of the Stephen A. Lind 1994 Trust dated August 29, 1994 and Elisabeth
Dick, as individual formerly known as Elisabeth Laverne Lind, (collectively hereinafter,
the "Borrower") and the Petaluma Community Development Commission, a public body
corporate and politic (the "Agency"). Borrower and Agency are hereinafter 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 Loan Agreement dated as of
December 3, 2004 ("Loan Agreement') pursuant to which the Agency agreed to
provide a loan to Borrower pursuant to the terms and conditions described therein;
WHEREAS, Borrower has requested, and Agency has agreed to increase the
maximum principal amount of the Loan by a maximum of Forty Thousand Dollars
($40,000);
WHEREAS, to reflect the foregoing increase in the amount of the Loan,
concurrently with this Amendment, Borrower and Agency shall execute (i) an Amended
and Restated Secured Promissory Note (`Restated Note"), and (ii) a First Amendment
to Deed of Trust with Assignment of Leases and Rents, Security Agreement and Fixture
Filing ("Deed of Trust Amendment"); 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 Deed of Trust shall be a
reference to the Deed of Trust as amended by the Deed of Trust Amendment, as the
same may hereafter be amended or modified.
3. The Loan proceeds shall be used solely for the purposes stated in the
Loan Agreement or for such other purposes as may be approved iri writing by the
Agency Executive Director or his or her designee.
4. The additional Forty Thousand Dollars ($40,000) ("Additional Loan
Proceeds") shall be disbursed by Agency to Borrower as follows:
Petaluma RDA - Lind Loan Agreement AmeudmentDIXj `�
02/09/2006 09:21 7077763675 CITY OF PETALUMA EDR PAGE 10
a_ Agency shall disburse Additional Loan Proceeds of Twenty
Thousand Dollars ($20,000) only after Borrower provides evidence reasonably
satisfactory to Agency that Borrower has expended on the Project Two Hundred Fifty
Thousand Dollars ($250,000), including Fifty Thousand Dollars ($50,000) from sources
other than the Agency;
b. the amount of the Additional Loan Proceeds shall be limited to
Twenty Thousand Dollars ($20,000) ('Initial Additional Loan Amount"), unless (1)
Borrower demonstrates to the satisfaction of the Agency that the cost of the Project will
exceed Two Hundred Eighty Thousand Dollars ($280,000), and (ii) Borrower provides
evidence reasonably satisfactory to Agency that Borrower has expended on the Project
the Initial Additional Loan Amount together with an additional Ten Thousand Dollars
($10,000) from other sources; and
c_ Agency shall disburse Additional Loan Proceeds only for and to the
extent necessary for the purposes set forth in this Amendment and in the Loan
Agreement.
7. All other provisions of the Loan Agreement, including without limitation all
requirements relating to use and disbursement of the Loan Proceeds set forth in Article
11 of the Loan Agreement, shall remain unchanged and in full force and effect.
8. 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.
Petaluma RDA - Lind Loan Agreement AmendmentrG k 8
WUW2006 05:21 7077763675 CITY OF PETALUMA EDR PAGE 11
IN WITNESS WHEREOF, the Parties have executed this Amendment as of the
date first written above.
STEPHEN A. LIND 1994 TRUST
dated August 29, 1994
lCc
phen A. Lind, Trustee
Elisabeth Dick
(formerly Elisabeth Laverne Lind)
AGENCY:
PETALUMA COMMUNITY DEVELOPMENT COMMISSION
LM
Its: Executive Director
ATTEST:
Agency Secretary
APPROVED AS TO FORM_
Agency Counsel
Petaluma RDA - Lind Loan Agreement Amendment.6poC
. M
02/09/2006 09:21 7077763675 CITY OF PETALUMA EDR PAGE 12
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Petaluma Community Development
Commission
11 English Street
Petaluma, CA 94952
Attn: City Clerk
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE 5§6103, 27363
Space above this f e for Recorder's use.
FIRST AMENDMENT TO DEED OF TRUST WITH ASSIGNMENT OF LEASES AND
RENTS, SECURITY AGREEMENT AND FIXTURE FILING
THIS FIRST AMENDMENT TO DEED OF TRUST WITH ASSIGNMENT OF LEASES
AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING (this "Amendment") is
made this day of , 2006 by Stephen A. Lind as
Trustee of the Stephen A. Lind 1994 Trust dated August 29, 1994 and Elisabeth Dick,
an individual formerly known as Elisabeth Laverne Lind (collectively hereinafter,
"Trustor") to Fidelity National Title Company, as trustee ("Trustee"), for the benefit of
the Petaluma Community Development Commission, a public body corporate and politic
("Beneficiary").
RECITALS
A_ This Amendment pertains to that certain Deed of Trust with Assignment of
Leases and Rents, Security Agreement and Fixture Filing dated as of December 3,
2004, executed by Trustor in favor of Beneficiary, and recorded March 9, 2005, as
Instrument No. 2005030620 in the Official Records of Sonoma County, California (the
"Deed of Trust").
B. The obligations secured by the Deed of Trust have been modified, and
Trustor and Beneficiary have agreed to amend the Deed of Trust to accurately reflect
the obligations secured thereby.
NOW THEREFORE, the Parties agree as follows:
1. The Note referred to in the Deed of Trust has been amended and restated
in its entirety by a certain Amended and Restated Secured Promissory Note, dated the
date hereof (the "Restated Note') in the face amount of $240,000, and each reference
in the Deed of Trust to the Note shall be a reference to the Restated Note, as the same
may hereafter be further amended or modified. Trustor acknowledges and agrees that
the Restated Note is among the obligations contemplated in Section 2 of the Deed of
Trust.
631725-I 1 30
02/09/200b 09:21 7077763675 CITY OF PETALUMA EDP. PAGE 13
2. The Loan Agreement referred to in the Deed of Trust has been amended
by an Amendment to Loan Agreement, dated as of the date hereof. The Loan
Agreement as so amended is hereafter referred to as the "Amended Loan
Agreement." Each reference in the Deed of Trust to the Loan Agreement shall be a
reference to the Amended Loan Agreement, as the same may hereafter be further
amended or modified. Trustor acknowledges and agrees that the Amended Loan
Agreement is among the modifications, supplements, and amendments contemplated in
Section 2 of the Deed of Trust.
I The Property (as defined and described in the Deed of Trust) shall remain
subject to the lien, charge and encumbrance of the Deed of Trust and nothing herein
contained or done pursuant hereto shall affect or be construed to affect the liens,
charges or encumbrances of the Deed of Trust, or the priority thereof over other liens,
charges or encumbrances, or to release or affect the liability of any party or parties who
may now or hereafter be liable under or on account of the Amended and Restated Note
and/or the Deed of Trust -
4. All terms and conditions of the Deed of Trust not expressly modified
herein remain in full force and effect, without waiver or amendment. This Amendment
and the Deed of Trust shall be read together, as one document.
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.
632225-1 2 a
02/09/2006 09:21 7077763675 CITY OF PETALUMA E_DR PAGE 14
IN WITNESS WHEREOF, the Parties have executed this Amendment as of the
date first written above.
TRUSTOR
STEPHEN A_ LIND 1994 TRUST
dated August 29, 1994
By: /f
Stephen A. Lind, Trustee
Elisabeth Dick
(formerly Elisabeth Laverne Lind)
BENEFICIARY
PETALUMA COMMUNITY DEVELOPMENT COMMISSION
0
Executive Director
APPROVED AS TO FORM:
By:
Agency General Counsel
ATTEST:
By:
Agency Secretary
SIGNATURES MUST BE NOTARIZED.
632W-1 3 as
02/09/2886 88:21 7077763675 CITY OF PETAiUMA EDR
Exhibit A
legmYclescdpti0O.\
632n5-1 4 ok�
IJL/U1J/GU17b 177: L1 IYJt/1bJbl5
State of California )
) ss -
County of Sonoma )
U1IY U1, PEIALUMA EUH
ACKNOWLEDGMENT
PAGE 16
On �b I () s aQ C before me, a Notary Public, personally
appeared,z -k4?.h /l-. rind personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(s) islare subscribed
to the within instrument and acknowledged to me that heisheithey executed the same in
his/her/their authorized capacity(is), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed -ed the instrument.
WITNESS my hand and official seal
PUB
NOTARY LIC
EM
632225-1
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