HomeMy WebLinkAboutAgenda Bill 5.A (PCDC) 01/26/2004JAN 2 6 2004 `.1 -, -A
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CITY OF PETALUMA, CALIFORNIA
PETALUMA COMMUNITY DEVELOPMENT COMMISSION
AGENDA BILL
Agenda Title
Meeting Date:
January 26, 2004
Discussion and Action Authorizing the Execution of 'the First
Amendment to an Owner Participation Agreement Between LOK
Meeting Time ® 3:00 PM
Petaluma Marina Hotel Company LLC and .the •Petaluma
❑ 7:00 PM
Community Development' Commission and the - First
Implementation Agreement to' Subordination and Standstill
Agreement between WG Investments and the Petaluma Community
Development Commission
CateLory (check one) ❑ Consent Calendar ❑. Public Hearing ❑ New Business
Unfinished Business . ❑ Presentation
Department
Director
Contact.Person
Phone Number
Redevelopment
Paul ,1Vlarangella
Paul.;Marangeha
(707) 778 -45$1
Cost of Proposal
Account Number
N/A
N/A
Amount Budgeted
Name of Fund:
N/A
N/A
Attachments to Agenda Packet Item
I. First Amendment to Owner Participation. Agreement and:Related Attachments
II. First implementation Agree_nient to Subordination and 'Standstill Agreement
Summary Statement
On April 17, 2001, the Petaluma. Community Development Commission (PCDC) entered into an Owner
Participation Agreement (OPA) with the LOK Petaluma Marina Hotel Company, LLC (Participant). The
OPA provides, among other things for (1) the Participant to develop a hotel and to expand and improve an
adjacent parking lot on certain real property located within the boundaries of the Petaluma Community
Development Project, (2) the PCDC to loan certain funds to the Participant in order to assist with the
development of the project on the site,, and (3)the Participant to comply with certain living wage and union
card check neutrality requirements in connection with the ownership and operation of the hotel.
In accordance with the OPA, the ;Participant has completed the development of the site and the parking lot
adjacent to the site, and the PCDC has disbursed some of the loan., funds to the Participant.
The Participant and Hotel Employees and Restaurant Employees Union, Local 2850 AFL -CIO have
entered into a new Memorandum of Agreement, governing labor union organizing activities at the hotel,
which replaces that certain Memorandum of Agreement dated August 2000.
The PCDC and Participant now desire to amend the original OPA to modify the Participant's obligations
with respect to payment of living wages and labor union organizing' activities and to clarify certain other
provisions of the original OPA.
Summary Statement continued:
In connection with the amendment of the OPA, PCDC desires that Participant's lender, WG Investments,
confirm that the amendment to the OPA will not affect the relative priorities of any lien, or agreement
recorded or entered into prior to 'the First Amendment to OPA, including the WG Investments first deed of
trust (as amended), the PCDC second deed of trust, the memorandum of ,OPA, the Agreement Affecting
Real Property, and the Subordination and Standstill Agreement among PCDC, 'WG - Investments and
Participant. (as amended). The First- implementation Agreement, to Subordination and "Standstill Agreement
confirms that, the amendment to the OPA has no affect on the existing priorities.
Therefore, the purpose of this agenda item is to obtain approval for the first, amendment to PCDC /LOK
OPA and the First Implementation Agreement to Subordination and Standstill Agreement.
Recommended. City Council Action/Suggested Motion
Itis recommended that the PCDC approve the First Amendment to the PCDC /LOK Petaluma Marina Hotel
Com an LLC Owner Partici ation A Bement and the
p ,y, . p Agreement First Implementation Agreement to Subordination,
and Standstill Agreement and authorize the Executive Director to execute the same as well as the attached
Memorandum of First - Amendment to OPA.
Reviewed by Finan a Director:
Reviewed by City Attorney
ApprovedAYWIty Approve Manage
e;
Law
Date:
Date:.
P7
oday's Date V
Revision #: and Date Revised;
File Cod
#
January 16, 2004
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® CITY OF PETALUMA CALIFORNIA
JANUARY 26; 2004
PETALUMA COMMUNITY DEVELOPMENT COIVIMISION
AGENDA REPORT
DISCUSSION AND ACTION AUTHORIZING THE EXECUTION OF THE
FIRST AMENDMENT TO AN .OWNER PAR'T'ICIPATION AGREEMENT
BETWEEN LOK PETALUMA MARINA HOTEL COMPANY, LLC AND
THE PETALUMA COMMUNITY DEVELOPMENT COMMISSION
1. EXECUTIVE SUMMARY
On April 17,200 1, the Petaluma Community Development Commission (PCDC) entered
into an Owner Participation Agreement (OPA) with the LOK Petaluma Marina Hotel
Company, LLC (Participant).. The OPA provides, among other, things, for: (1) the
Participant to develop a hotel and to expand and improve an adjacent parking lot on
certain real property located within 'the boundaries of the Petaluma Community
Development Project, (2)' the PCDC to. loan certain funds to the Participant in order to
assist with the development of the project on the site, and (3) the'Participant to comply
with certain living wage and union card check neutrality requirements in connection with
the ownership and operation of the hotel. In accordance with the OPA, the Participant
has completed the development of. °the'`site and the parking lot adjacent to the site, and the
PCDC has disbursed some of the loan funds to the Participant.
The Participant and :Hotel Employees and Restaurant Employees Union, Local 2850
AFL -CIO have entered into a new Memorandum of Agreement governing labor union
organizing activities at the hotel, which replaces that certain Memorandum of Agreement
dated August 2000..
The PCDC and Participant "'now desire to amend the original OPA to modify the
Participant's obligations with respect to payment of living wages and labor union
organizing activities and to clarify certain other provisions of the original OPA.
In connection with the. amendment of -the OPA, PCDC desires that Participant's lender,
WG Investments, confirm that the amendment to the OPA will not affect the relative
priorities of any'lien or agreement recorded or entered into prior to the First Amendment
to OPA, including the 'WG Investments first deed of trust (as amended), the PCDC
second deed of trust, the memorandum of OPA, the Agreement Affecting Real Property
and the Subordination: and Standstill Agreement, among PCDC, WG Investments and
Participant (as amended). he First Implementation Agreement to Subordination and
Standstill Agreement confirms that, the amendment to the OPA has no affect on the
existing pri'orties'.
Therefore, the, purpose of this agenda item is to obtain approval for the first amendment
to PCDC /LOK OPA and the First Implementation Agreement to Subordination and
Standstill, Agreement.
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2. BACKGROUND
The proposed. amendment to the OPA. includes the following:
A. Approval ,of Change in Management and Control The PCDC approves' Luna
Investments as the managing member of the Managing Member.
B. Funding of Waterfront Enhancement Improvements Section 506 of the OPA
is amended to provide that Participant will contribute directly to the City, and not
to a new non - profit corporation, $125,00 of riverfront enlancement funding.
Participant and PCDC desire to make this change to avoid the administrative
expense of having to establish and run a non- profit corporation for the specific
purpose of overseeing and administering Participant's contributions.
C. Labor Union Organizing: Participant covenants and agrees that it shall
comply with all of the terms and conditions of that certain. Memorandum of
Agreement among RIM Corporation, Participant and .Hotel Employees and
Restaurant Employees Union, Local 2850, AFL -CIO, dated October 29, 2003,
governing labor union organizing activities at the hotel.
D. Union .Representation Terminates Living Wage Provision The following •
sentence is hereby added to the end of Section 314..3 as follows:
"Notwithstanding the foregoing, this section 314.3 shall be of no force, or
effect if a majority of the employees employed at the Project select Hotel
Employees and Restaurant Employees Union, Local 2850, AFL -CIO or
any other union as their exclusive representative for purposes of collective
bargaining. Furthermore, this section 314.3 shall be of no force or-effect
as to any employees who are represented by a union for purposes of
collective bargaining in connection with their employment at the Project."
3. ALTERNATIVES
The PCDC could direct staff to pursue other alternatives relative to union organizing and
living wage issues or the proposed funding mechanism for the waterfront enhancement
improvements.
4. FINANCIAL IMPACTS
The proposed. amendment to the OPA and the First Implementation Agreement to
Subordination and Standstill Agreement contain no additional financial impacts beyond
those already contained in the original OPA.
5. . CONCLUSION :
The Participant and the PCDC are desirous of updating the OPA to reflect current •
conditions. The proposed amendments meet this need.
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6. OUTCOMES OR PERFORMANCE MEASUREMENTS THAT WILL IDENTIFY SUCCESS OR
COMPLETION:
The amendment to the OPA will provide for a more harmonious method of determining
whether the affected hotel employees choose to be represented by a union or not. It will
also avoid the expense to the City of having to establish a new non - profit entity
specifically for ,purposes of'receiving and expending the $125,000 to be contributed by
Participant towards riverfront enhancement improvements.
7. RECOMMENDATION
It is recommended that the PCDC approvel the First Amendment to the PCDC /LOK
Petaluma Marina Hotel Company, LLC Owner Participation Agreement and the First
Implementation Agreement to 'Subordination :and Standstill Agreement and authorize the
Executive Director to execute the same, together with the attached Memorandum of First
Amendment to OPA.
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ATTACHMENT I
FIRST AMENDMENT TO
OWNER PARTICIPATION AGREEMENT
This First Amendment to Owner Participation Agreement '(the "First Amendment ") dated
for reference purposes , 2004, is, entered,into by,and between LOK PETALUMA
MARINA HOTEL COMPANY;'LLC, a California limited.Iliabilitycompany ( " Participant "), and
the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF PET LUMA, a
public body, corporate and:politic, of the State.of California having offices at 11 English Street,
Petaluma, California 949`53 ( " Commission ").
RECI.TALS:
Capitalized terms not otherwise defined herein shall have the meaning ascribed to such
terms in the Original OPA (defined below).
A, Commission, and'Participant entered into that certain Owner Participation
® Agreement dated April 17, (the " Original ;OPA ").
B. In accordance with the Original OPA, Participant has completed the development
of the Site and the parking lot adjacent to the Site," and Commission has disbursed some of the
loan funds to Participant.
C. Participant and Hotel Employees and Restaurant Employees Union, Local 2850,
AFL -CIO have entered into anew Memorandum of Agreement governing labor union -
organizing activities at the hotel;- which replaces that certain Memorandum of Agreement dated
August 2000.
D. Commission ,and Participant now desire to amend the Original OPA to modify
Participant's obligations with, respect to-payment of living wages, labor union organizing
activities and funding of river front enhancement improvements,.and to clarify,certain other
provisions of the Original OPA all as set forth herein. _
E. Concurrently 'herewith Commission and Participant's lender, WG Investments,
LLC, have entered, into a First. Implementation Agreement. to Subordination and Standstill
Agreement, confirming that; this First Amendment and`the Memorandum of First Amendment to
Owner Participation Agreement to be recorded against the Project as set forth below shall not
affect in this First aAmendment.amon the.�aities hereto n or agreement recorded or entered into prior to
g p _ or by and between Commission and WG
Investments, LLC. _
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AGREEMENTS:
NOW THEREFORE, in consideration of the foregoing recitals, and for other valuable
consideration,, the receipt and sufficiency of which "are hereby acknowledged Participant and
Commission hereby agree as follows:
L. Amendments to .Definitions Under- Section 100 The following definition under
Section 100 of the Original OPA is hereby revised to read as follows:
"Agreement" means the 'Owner Participation Agreement between
Commissioh and Participant, dated April 1,7, 2001 as amended by the First
Amendment. to Owner Participation Agreement, dated ,
2004.
The following definitions are - hereby added to Section 100 of the Original OPA:
"WG Investments" means WG Investments, LLC, Participant's current
primary lender, which provided the financing for development of the hotel
and parking lot improvements.
"Luna Investments" means Luna Investments LLC,, a Delaware limited
liability company; the manager of the Managing Member, as defined in the
Managing Member's LLC Operating Agreement. i
"Original OPA" means the Owner Participation Agreement between the
Commission and Participant, dated April 17, 2001.
2. Approval Change in Management and Control Commission hereby approves
Luna Investments As, the manager of the Managing Member.
3. Amendment of Section 314.2 Section 314.2 of the Original OPA is hereby
deleted in its entirety and restated as follows:
"314." 2 Labor Union Organizing. Participant covenants and agrees that
it shall :complywith gall of the terms and conditions of that certain Memorandum
of Agreement among, RIM Corporation Participant and Hotel ..Employees and
Restaurant Employees Union Local 28'50, AFL -CIO, dated October 29 2003,
governing labor union organizing activities at, the hotel
4. Airneridment of Section 314.3 The following sentence is hereby added io the end
of Section 314.3 as follows;
"Notwithstanding the ;foregoing, this section 314.3 shall be. of no force or effect if
a majoritYof the employed at the Projectselect;Hotel Employees-and
Restaurant Employees Union -, Local 2850, AFL -CIO. or any other union-as their exclusive
representative for-purposes of collective bargaining. Furthermore, this section 314.3 shall
be of no force or effect as to any employees who are represented by a union for purposes
of collective bargaining in connection with employment at the Project."
5. , Amendment of Section 506 Section,506 of the Original OPA is hereby
deleted in its entirety. and restated as follows:
"506.. ;Funding of River.Front Enhancement Projects. In consideration
of Comm ssion's'provision of the Commission Assistance to 'Participant, Participant shall
pay to the City, of Petaluma, for each of the first "(1 st) through - fifth. (5th) Operating Years,
the sum of Twenty Five Thousand Dollars ($25,,000) per Operating Year.. Said funds
shall be paid by Participant to City no later than thirty (3 0) days following -the start of
each of the first (1 st) through fifth (5th) Operating Years. Commission' shall require that
said funds are allocated by the City of Petaluma specificallyto fund riverfront related
public works and/orparks and-recreation-projects thaf`will enhancethat portion of the
riverfront area between the aiming basin and Shollenberger Park. Commission shall
cause City to consult with Participant and to consider`Participant!s input regarding the
specific riverfront related projects to be undertaken by. City priorlo City's funding of said
projects, however, the final decision asAo which projects to undertake shall be.made by
City in its sole reasonable scretion. Commission shall also cause. City to install and
maintain, for the duration of the riverfront improvement work, a small sign at the location
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of the work recognizing the res ectve roles,,of the City,and the Sheraton Petaluma Hotel
in performing and funding such work: Commission acknowledges that City of
Petaluma has received 'from .Participant the first $25,000 installment of the foregoing
funding on or about December 19,'2003."
6. Amendment of Section 701 Participant's address for Notices in Section 701 of
the Agreement is hereby amended to read as follows:
LOK Petaluma Marina Hotel Company, LLC
-Luna Investments, LLC, Manager of Managing Member
c/o Friedemann, O'Brien,. Goldberg &.Zarian LLP
420 Aviation Boulevard, Suite. 201
Santa Rosa, CA 95403
Telephone: (707) 543 -4900
Facsimile: (707)543 -4910
Attention: Steven M. Goldberg,'Esq.
The parties may designate by Notice any other address or any , other person to
whom any future Notices are to be sent.
7. Memorandum of First Amendment Prior to Commission's execution of this First
Amendment, Participant shall, execute,. acknowledge and deliver to Commission for recordation
in the Official Records of Sonoma County, California, a : " Memorandum of First, Amendment to
Owner Participation Agreement" in the form attached.hereto ' as Attachment No. 1 .
8. Conditions Precedent to Effectiveness of First Amendment This First
Amendment shall become effective only upon the satisfaction of each of the following.
conditions:
(a) 'Participant shall have executed, acknowledged and delivered to
Commission the Memorandum of First Amendment to Owner Participation Agreement.
(b) The ,First Implementation Agreement to Subordination. and Standstill
Agreement described in"Recital E above, shall have been fully executed and acknowledged.by
Commission and WO Investments and shall be ready to. be recorded immediatdly2 following full
execution of this First; Amendment.
9. Authority of Participant Participant and each,person executing this First
Amendment, on behalf of Participant does hereby covenant and warrant that: (a); Participant is
duly organized and validly existing under the ,laws of'the State of'California; (b) Participant has
full power and authority to enter, into this First Amendment and to perform all of `its obligations
hereunder; and (c)' each person (and all of the persons if more than ones" signing this First
Amendment ton behalf of.Participant is duly and val'id'ly authorized to do so.
10. Authority of Commission Commission and each person executing this First
Amendment.on behalf of Commission does hereby covenant and warrant that (a)' Commission
:has full power and authority to enter into this First Amendment and to perform all of its
obligations hereunder. and (b) eachperson (and all of the persons if more than one signs) signing
this First Amendment on behalf of the Commission is duly and validly authorized to do so.
11. Ratification Except as amended hereby, the OPA remains unmodified and in full
force and effect..
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IN WITNESS' ` WHEREOF,, the parties have executed this First Amendment on the
respective dates set forth below.
2004 COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF PETALUMA, a public body
corporate and politic
By
Chair
Attest:
Commission Secretary
"COMMISSION
ATTEST:
L
Commission Secretary
APPROVED AS TO FORM:
WDONOUGH, HOLLAND &.ALLEN PC
to
Commission Counsel
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2004 LOK PETALUMA MARINA HOTEL.
COMPANY, LLC, a California limited liability,
company
By: LOK PETALUMA MARINA
DEVELOPMENT COMPANY, LLC, a.
California limited liability company
Its: ;Managing Member
By: LUNA INVESTMENTS', LLC, a
Delaware limited liability company
Its: Manager
By:
Thomas 14. Birdsall, Manager
"PARTICIPANT"
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ATTACHMENT NO. 1
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
McDonough Holland &, Allen PC
1999 Harrison Street -Suite 1300
Oakland, California 94612
Attention: Gerald Ramiza
Space above this line for Recorder's' Use This document is exempt from the payment of a
recording: fee pursuant to Government Code § 27383.
MEMORANDUM OF FIRST AMENDMENT
TO OWNER PARTICIPATION AGREEMENT
THIS MEMORANDUM' OF FIRST AMENDMENT TO OWNER PARTICIPATION
AGREEMENT ( "Memorandum "), dated for identification •purposes as of , 2004,
is entered into by and between the COMMUNITY DEVELOPMENT COMMISSION OF THE
CITY OF PETALUMA, ..a public body, corporate, and po'lit'ic' ( "Commission "), and LOK
PETALUMA MARINA HOTEL COMPANY, LLC, a California limited liability company
( "Participant ").
1. First Amendment to Owner Participation Agreement. Commission and
Participant have entered into a First Amendment to Owner Participation Agreement dated for
identification purposes as of , 2004 ( "First Amendment to OPA "), which amends that
certain Owner Participation Agreement by and between Commission and Participant dated April
17, 2001, which is evidenced by a Memorandum of Owner Participation Agreement dated April
17, 2001, recorded in the Official` Records of Sonoma_ County on May 16, 2001, as Instrument
No. 2001- 062799 (the "Original OPA "). The First Amendment to OPA, among ;other things,
modifies Participant's obligations with respect to paymentof living wages and union organizing
activities and clarifies certain other provisions of the Original OPA. The First Amendment to
OPA and the Original .OPA are available for public inspection and copying at the office of the
City Clerk, City of Petaluma City Hall, .11 English Street, Petaluma, California 94952. All of the
terms, conditions, provisions and covenants of the First Amendment to OPA are incorporated in
this Memorandum by reference'-as though written out at lerigth herein, and the First Amendment
to OPA and this Memorandum shall be deemed to constitute a single instrument or document.
2. Purpose of Memorandum. This Memorandum is prepared for recordation
purposes only, and in no way modifies the terms, conditions, provisions and covenants of the
First Amendment to OPA. In the event of any inconsistency between the terms, conditions,
provisions and covenants of this Memorandum and -the First Amendment to OPA, the terms,
conditions, provisions and covenants of the First Amendment to OPA shall prevail.
Attachment No. 1 Page 1
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The parties.have executed this Memorandum on the dates specified immediately adjacent
to their respective signatures.
, 2004 LOK PETALUMA MARINA HOTEL
COMPANY, LLC, a California limited
liability company
By: LOK PETALUMA MARINA
DEVELOPMENT COMPANY,, LLC, a
California limited liability company
Its: Managing
By: LUNA INVESTMENTS, 'LLC, a
Delaware Iimited'habi'lity°company
Its: Manager
.By:
Thomas H. Birdsall
Its: Manager
"PARTICIPANT"
_,2004 COMMUNITY DEVELOPMENT
CO1V M18SION 'OF THE CITY OF
PETALUMA, a public body, corporate and
politic
By:
Executive Director
ATTEST:
Commission Secretary
APPROVED.AS'TO FORM :.
MCDONOUGH HOLLAND & ALLEN PC
By
"COMMISSION"
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Commission Counsel
Attachment No. 1
Page 2
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RECORDING REQUESTED By
AND WHEN RECORDED MAIL, To )
}
McDonough Holland & Allen' PC )
1999 . Harrison Street, Suite 1300 )
Oakland, California 94612' )
Attention: Gerald J. Ramiza )
Attachment II
Space above this line for Recorder's Use This document is exempt from the payr Tent. of a
recording fee p&siiant to Government Code § 27383.
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A G EMENT
THIS FIRST IMPLEMENTATION AGREEMENT TO SUBORDINATION AND
STANDSTILL AGREEMENT ( "Agreement ") is made as of , 2004, by and
between WG ' INVESTMENTS, LLC, a California limited liability company ( "WG
Investments "), LOK PETALUMA MARINA HOTEL COMPAI�', LLC, a California limited
liability company (`.`Borrower ") And the. COMMUNITY `DEVELOPMENT COMMISSION OF
THE CITY OF PETALUMA, a public body, corporate and politic ( "Commission ").
RECITALS
A. Borrower, Commission ' and WG Investments have entered into a number- of
agreements in connection with the real property, .and the hotel "thereon, located at 745 Baywood
Drive, Petaluma, California, more particularly, described in the legal description attached as
Exhibit A . These agreements include, but are not limited to, an Owner Participation Agreement,
dated April 17, 2001 ( "Original OPA "); a memorandum thereof recorded in the Official Records
of Sonoma County, California, on May' 16, 200 1 as instrument no. 2001- 062799
( "Memorandum of OPA "); an Agreement to be Recorded. Affecting Real Property recorded as
Borrower
instrumen
as Tr 200 n g ( Affectinng Real Property "); a Deed of Trust by
Commission as beneficiary, dated April 17, 2001, recorded.in the
Official Records of Sonoma County, California, on May. 16, 2001, as Instrument No. 2001 -
062798 ( "OPA Deed of Trust"); a Deed of Trust, Assignment of Rents, Security Agreement and
Fixture Filing dated September 17, 2001, recorded in, the Official Records of Sonoma County,
.California, as Instrument No'. 2001 - 133595 ( "WG Deed of Trust"); an Addendum to the WG
Deed of Trust, recorded in the Offi cial . Records of "Sonoma County, California, as Instrument No.
2002- 081256; a Subordination and Standstill Agreement dated September 17, 2001, recorded in
the Official Records of Sonoma County, California, as Instrument No. 2001- 133596
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( "Subordination and Standstill Agreement ") and an. Addendum - to the Subordination and
Standstill :Agreement, recorded in the Official Records of Sonoma. County, `California as
Instrument No. 2002- 112333.
B. Concurrently herewith, Borrower and' Commission are, entering, into a First
Amendment to `Owner Participation Agreement ,which modif es Participant's obligations with
respect to payment of .living wages and labor union organizing activities and clarifies certain
other provisions of the Original OPA ( "First. Amendment"). A memorandum of the First
Amendment of even date: herewith is being recorded in the Off cial Records of Sonoma County
("Memorandum of First;Amendment ").
C. Commission; Borrower and WG Investments wish lo, agree that the First
.Amendment and the Memorandum of First Amendment shall not effect in any way.'therelative
priority of (i)° the Original OPA, (ii) the OPA Deed•of Trust, (iii) the Agreement Affecting Real
Property, (iv) the WG .Deed of Trust, as :amended. or (v) the Subordination and Stan
tandstill
Agreement, as amended.
AGREEMENT
NOW THEREFORE, in consideration. of the : mutual benefits accruing to the parties
hereto and other valuable consideration, the receipt and ,sufficiency of which consideration are
hereby acknowledged, it is hereby declared, understood and agreed- as set forth below.
1. No Effect on Existing Priorities. Commission, WG Investments and. Borrower
hereby acknowledge and agree that the First Amendment and the - Memorandum - of :First
Amendment shall .not effect in any way the relative priority of (i) the Original OPA, (ii) the ,OPA
Deed of Trust, (iii) the Agreement Affecting Real Property, (iv) the WG, 'Deed of Trust, as
amended, or (v) the Subordination and Standstill Agreement, as: amended. Commission; WG
Investments and Borrower further agree that any determination regarding such priorities shall be
made entirely through. reference to the situation as it ex -isted •prior to September, 1, 2003, with the
sole exception being this Section 1 confirming that such priorities shall be determined without
any reference. to events occurring after September 1, 2003,, including without limitation the First.
Amendment.
2. Governing Law. This Agreement, shall be construed in accordance with and
governed by the laws of the State of California.
3. Modifications. This Agreement may not 'be changed, terminated or modified
except, by an agreement in writing, signed by each ofthe`parfies hereto.
4. Successors and Assigns. This Agreement shall be bi nding. upon and shall inure
to the benefit of the WG Investments, the Commission, . the Borrower and their respective
successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first set forth: above.
BORROWER:
LOK PETALUMA MARINA HOTEL
.COMPANY LLC, a California limited liability
company
By: LOK PETALUMA MARINA
DEVELOPMENT COMPANY, LLC, a
California limited liability company
Its: Managing Member
By: LUNA.INVESTMENTS, LLC, a
Delaware limited liability company
Its: Manager
By:
Thomas H. Birdsall
Its: Manager
® COMMISSION:
COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF
PETALUMA, a public body, corporate and politic
By:
Its:
ATTEST:
Commission Secretary
APPROVED AS TO FORM:
McDonough Holland & Allen PC
Agency Special Counsel
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WG INVESTMENTS:
WG INVESTMENTS, LLC, a California limited
liability company
to
Its:
APPROVED AS TO FORM:
Friedemann O'Brien Goldberg & Zarian LLP
Steven M. Goldberg, Esq.
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9 STATE OF CALIFORNIA )
) ss.
COUNTY OF . )
On , 20_, before me, , the
undersigned, personally appeared ,
( ) personally known to me
( ) proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) (i's /are) subscribed to the within instrument and acknowledged
to me that (he /she /they) executed the same in (his/her /their) authorized capacity(ies), 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 the instrument.
WITNESS my hand and official seal:
Signature
® STATE OF CALIFORNIA )
ss.
COUNTY OF )
On . , 20_, before me, , the
undersigned, personally appeared ,
( ) personally known to me
( ) proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) (is /are) subscribed to the within instrument and acknowledged
to me that (he /she /they) executed the same in (his/her /their) authorized capacity(ies), 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 the instrument.
WITNESS my hand and official seal:
Signature
Exhibit A
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STATE OF CALIFORNIA ) ss.
COUNTY OF i
the i
On , 20_, before me,
undersigned, personally appeared i
( ) personally known to me it
( ) proved to me on the basis of satisfactory evidence and acknowledged
to be the Person(s) whose name(s) (
is /are subscribed to the within instrument and that by
to me that (he /she /they) e xecuted the same in (his/her /their) auth e aa ehalf of which the.
(his/her /their) s ignature(s) on the instrument the person(s), or Y
person(s) acted, executed the instrument.
WITNESS my hand and official seal:
Signature
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