HomeMy WebLinkAboutStaff Report 03/05/2001 (3) •
CITY OF PETALUMA, CALIFORNIA I 1
PETALUMA COMMUNITY DEVELOPMENT'COMMISSION 19L
AGENDA BILL
Agenda Title: Discussion and-Action on Proposed. Amendment-.to MeetingDate:
Owner:Participation Agreement with LOK Petaluma Marina Hotel March 5, 2001
Company, LLC
Department: Director: Contact Person: Phone Number: 778-4581
PCDC/City Manager Marangella Marangella
Cost of Proposal: 0 Account Number: NA
Name of Fund: NA
• Amount Budgeted: 0
Attachments to Agenda Packet Item:
1.. Correspondence from LOK Group requesting amendment to Owner Participation Agreement
2.4`.:Owner Participation Agreement (OPA) by and between the PCDC and LOK Petaluma Marina
Hotel Company, LLC
' 3; Resolution Authorizing Amendment to OPA
Summary Statement:
On December 11, 2000, the Petaluma Community Development Commission approved an Owner
Participation Agreement (OPA) by and between the PCDC and LOK Petaluma Marina Hotel
Company, LLC. Included in the OPA is Attachment 4, "Schedule of Performance," that details the
dates by,whi'ch certain actions to implement the transaction should occur.
Subsequent to the approval of the OPA and prior fo execution tliereof;"ihe L'OIeGro"p dvigal#he_
City Manager that the delivery, of steel used to construct the building is delayed by eight weeks.
Additionally, it was pointed out that the building permit was issued three months later than originally
-anticipated. Therefore,.the LOK Group is requesting the approval of the PCDC to amend Attachment
No. 4, item 7, "Completion of Construction of Participant's Improvements," under the "Date"
heading, to read: "Within 24 months after commencement thereof by the Participant:" This is an
extension of six months. Section 702 of the Agreement provides for such an extension.
It is recommended that the PCDC adopt the attached resolution authorizing the amendment.
Council Priority: THIS AGENDAITEM IS CONSIDERED To BE PART OF, OR NECESSARY.To, ONE OR
MORE.OF THE 1999-2000 PRIORITIES ESTABLISHED BY THE CITY COUNCIL ON JANUARY 30, 1999
AND.MARCH 18, 2000.
Priorities: 1. Complete Redevelopment.Agency Review: Maximize Income
2. Establish Revenue Recapture &Regeneration Program: Revenue Generation
Recommended City Council Action/Suggested Motion:
Adopt the attached resolution, amending the Owner Participation Agreement (OPA) by and between the
PCDC and LOK Petaluma Marina Hotel Company, LLC, establishing the completion date of
construction of improvements to be 24 months after commencement. '
•eviewed by finance Director: Reviewed by City Attorney: Approved by City Manager:
/ • D t•: Date: Date:
/
odav's 1 e ate: Revision # and Date Revised: `Fil Code:
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CITY OF PETALUMA, CALIFORNIA
Petaluma Community Development Commission
• MARCH 5, 2001
AGENDA REPORT
FOR
PROPOSED AMENDMENT TO OWNER PARTICIPATION AGREEMENT WITH
LOK PETALUMA MARINA HOTEL COMPANY, LLC
1. EXECUTIVE SUMMARY;
On December 11, 2000, the Petaluma Community Development Commission approved an
Owner Participation Agreement (OPA) by and between the PCDC and LOK Petaluma Marina
Hotel Company, LLC. The parties have not yet executed the OPA. Included in the OPA is
Attachment 4, "Schedule of Performance," that details the dates by which certain actions to
implement the transaction should occur.
Subsequent to the approval of the OPA and prior to execution thereof, the LOK Group advised
the City Manager that the delivery of steel used to construct the building is delayed by eight
weeks. Additionally, it was pointed out that the building permit was issued three months later
than originally anticipated. Therefore, the LOK Group is requesting the approval of the PCDC
to amend Attachment No. 4, item 7, "Completion of Construction of Participant's
Improvements," under the "Date" heading, to read: "Within 24 months after commencement
• thereof by the Participant." This is an extension of six months. Section 702 of the Agreement
provides for such an extension.
A PCDC resolution approving the requested amendment is provided in Attachment III.
2. BACKGROUND:
The LOK Petaluma Marina Hotel Company, LLC, has offered to enter into an Owner
Participation Agreement in.good faith and did not anticipate a delay in the delivery of building
materials or the issuance of a building permit. In order to maintain the 'integrity of the
agreement, the company immediately advised the City Manager of the delay and requested an
amendment to Attachment 4, Schedule of Performance. The company has maintained the other
.elements of the agreement and intends to have the hotel open by May of 2002.
Section 702 of the Agreement, "Enforced Delay; Extension of Times of Performance", states:
"In addition to specific provisions of this Agreement, performance by either party
hereunder shall not be deemed to be in Default, and all performance and other
dates specified in this Agreement shall be extended, where delays or Defaults are
due to: ... inability to secure necessary labor, materials or tools; delays of any
contractor, subcontractor or supplier... or any other causes beyond the control or
without the fault of the party claiming an extension of time to perform...
Notwithstanding anything to the contrary in this Agreement, an extension of time
• for any such cause shall be for the period of the enforced delay and shall
commence to run from the time of the commencement of the cause ... Times of
the performance under this Agreement may also be extended in writing by the
mutual agreement of Commission and Participant."
•
3. ALTERNATIVES:
•
The Lok Petaluma Marina Hotel Company, LLC, is acting in accordance with Section
702 of the Agreement. An:alternative would be-not to approve, and the result would
ultimately be that the hotel group could not meet the construction schedule.
4. FINANCIAL IMPACTS:
None
5. CONCLUSION:
The Lok Petaluma Marina Hotel Company has requested an extension of time with
respect to Attachment No. 4, Item 7—"Completion of Construction.of Participant's
Improvements" in accordance with Section 702 of the Agreement.
The PCDC has the authority to provide the requested extension as provided by the terms
of the Agreement.
6. OUTCOMES ORPERFORMANCE-MEASUREMENTS THAT WILL IDENTIFY SUCCESS OR
COMPLETION:
The Lok Petaluma'Maiina Hotel is to be opened by May 2002.
• 7. RECOMMENDATION:
It is recommended that the Petaluma Community Development Commission adopt the
resolution in Attachment III, authorizing a six month extension for the completion of
construction of the Lok'Petaluma Marina Hotel.
•
•
• Attachment I
Correspondence
from
LOK Petaluma Marina Hotel Company, LLC
• Requesting.Amendment to Owner Participation Agreement
S
,JAN703-2001 'WED 02: 16 PM LOK GROUP OF COMPANIES FAX N0. 707 585 1017 P. 01
ax
•
Ta: Fred Stouder, City Manager
Of: City of Petaluma
Fax: (707) 778-4419
Phone: (707)778-4345
Pages: 1, including this cover sheet
Date: January 3,2001
Fred:
Don asked me to touch base with you on two mailers. First,I wanted to keep you informed
on the status ofour construction financing. We are anticipating:putting an$I S million construction
loan in place sometime in April 2001. Tn the meantime,we have obtained gap financing from the
group who had heiped us with the pre-development financing, Cascade Acceptance Corporation.
They arc providing us with a$3 million"bridge"loan to help'pilrchase the steel being fabricated
over the next few months. They will be repaid when the construction loan funds.
Also, Don mentioned; there was something in the agreement regarding completing
construction within 18-months of July 1,2000? That was a date which would have worked if we
could have obtain our building permit back in March 2000 and had the project fully bid. As you
know,the building permit was not issued until l ate July 2000,and our steel delivery will take at least
8-weeks longer than originallyprejected. It was suggested that the 18-months could be changed to
24-months or, as an alternative,just make it 18-months following execution,of the OPA. Either
option would work. If steel is delivered anderection begins May 1,2001,the project should be able
to open in late April or early May 2002.
Give me a call and we can confirm how you want to handle it. Thanks in advance for the
help. All the best for a Happy New Year!
a/A 17"121iPli
From the desk af...
Dennis A.Mae Donnell
Vco President&C.F.O.
Lok Group of Companies
• _cc: Kirkman i.ok 5060 Petaluma HD Road
h. Santa e:7a7-Ceaaazea
Donald I.Black,`Esq. Fax::707-585-1017
Attachment II
Owner Participation Agreement (OPA)
by and between
• the PCDC and LOK Petaluma Marina Hotel Company, LLC
111
7l
5 d v;
MCDONOUGH, HOLLAND & Ail-EN (�,;r� p]
A PROFESSIONAL CORPORATION JAN 05 20U1 j
• - ATTORTiEYS t!
1998 HARR150N STREET. SUITE 1300 CITY MANAGER
OAKLAND. CALIFORNIA 9<612 1 AtIg.Y5`+EnO OCri Ca
555 cAPITOL nn .NINTH rLOOP
(510) 273-8750 SACRAME.v o.C rowel.. 56814
(En 5),44,4-3900
GERALD J.RAMIZA TELECOPIER (510) 539-9104 TELECOPIER.(51n) 444 sa.3<
man R[;v lcC
422'CE.0 Lv. PARK p E SUITE A
%776
Yuan CITY cALLFORN,8 59 9 2-07 7 6
(520) 874-9761
-ELECoPi E.7:(530) 671-0520
January 4, 2001
Donald J. Black, Esq.
• Law Offices of Donald J. Black
2213 Mendocino Avenue
Santa Rosa, CA 95403
Re: Proposed.Owner'Participation Agreement—LOK Marina Hotel Co., LLC
• Dear Don:
I enclose for your review the final version of the above-referenced agreement
together with redlined pages showing the latest revisions. I have also enclosed a copy
of the deed of trust to be recorded against the property.
I understand that Dennis MacDonneil has submitted to the Commission a
written request to extend the outside date for completion of the hotel improvements as
a result of delays in obtaining structural steel for the project. As we discussed, I will
hold off sending the execution documents to you for your client's signature until the
Commission Board has had an opportunity to consider the extension request.
If you have any questions, please give me a call.
Very truly yours,
1
• Gerald J. Ratniza
GJR:lh
Enclosure
cc/enc: Frederick C. Stouder, City Manager
• Richard Rudnansky, City Attorney
Ltr/B lack/01-04-01
•
• OWNER PARTICIPATION AGREEMENT
By and between the
COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF PETALUMA
•
• and
LOK PETALUMA MARINA HOTEL COMPANY, LLC,
a California limited liability company
•
Petaluma Community Development Redevelopment Project
•
TABLE:OF CONTENTS, •
Pan
100. DEFINITIONS - 2
200. REPRESENTATIONS AND WARRANTIES 8
201, Commission Representations 8
(a) Authority 8
(b) No Conflict 8
(c) No Commission Bankruptcy 8
202. Participant's-Representations 9
(a) Authority - 9
(b) No Conflict 9
(c) No Participant Bankruptcy 9
(d) Leases and Other.Interests 9
(e) Title 9
(f) Litigation 9
•
• (g) Governmental Compliance 9
•(h) Parking Lot Improvements 9
203. Prohibition Against Change in Ownership,Management and Control of
Participant 10
204. Amendments to LLC Operating Agreement 12
205. Guarantee 13
•
300. DEVELOPMENT OF THE SITE 13
301. Scope of Development 13
302. Permits and Approvals 13
303: Schedule of Performance - 13
304. Cost of Project and Improvements 13
• 305. . Insurance Requirements 13 '
306. Rights of.Access 14
307. Compliance With'Laws;Indemnity; Waiver 14
• 308. Taxes and Assessments 15
309. Condition of the Site 15
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310. •Liens and Stop Notida
311. Certificate of Completion 16
312. Submission of Evidence.of•Financing Commitments and Loan Closing 17
313. Mortgage,Deed of Trust Sale arid Lease-Back Financing 18
313.1 No Encumbrances Except Mortgages Deeds of Trust or Sale and Lease-
. Back for DeveloPment .
313.2 •Holder•Not Obligated to Construct Improvements
313.3 Notice of befdult to Mortgagee or Deed of Trust Holders;RighLto,Cure 18
314. Work Force Commitments- 19
314.1 Local Contractor and Union Contractor Requirements 19
314.2 Card Check Neutrality 19
314.3 Living Wage Requirements .
400. COVENANTS,RESTRICTIONS AND AGREEMENTS• ")()
401. Agreement to be Recorded Affecting Real Property -- 20
500. FINANCIAL PROVISIONS
501. Proyisionof Commission Assistance.'
501.1 Eligible Project Costs 21
502. Eligible Construction Cosf Loan 21
502.1 Conditions of Eligible Construction Cost'Loan Disbursement 22
ProniisdrNdue-Eligiblè Construction Cost Loan • 7' - 22
(b) Construction Loan Escrow Instructions 22 •
(c) No Default 22
(d) Agreementto be'Recorded Affecting Real Property 22
(e) Approval of Evidence of Financing 22
5012 Repayment of Eligible Construction Cost Loan 23
503. Tax Increment Loan . 23 -
503.1 Disbursement of Tax Increment Loan
5032 Conditions of Tax Increment Loan Disbursement - 25
(a). of Improv,ements
(b) Promissory Nofen.rid Deed of Trust-Tax Increment Loan 25
(c) No Default 25
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• (d) Sheraton Flag,at,Opening • 25
(e) Operation of Project 26
(f) Payment of Property Taxes 26
(g) Sale of the Project 26
(h) Minimum Project Value 26
(1) Financing Commitments 26
(j). Agreement to be Recorded Affecting Real Property 26
(k) Guarantee 26
503.3 Repayment of Tax Increment Loan �6
504. Deferred Participation Payments 27
505. Annual Financial Statements 28
506. Funding of Non-Profit.Corporation 28
600. DEFAULTS AND REMEDIES 29
601. Default Remedies 29
602. Institution of Legal Actions 29
• 603. Termination by Participant 29
604. Termination by the Commission 29
605. Acceptance of Service of Process 30
606. Rights and Remedies Are Cumulative 30
607. Inaction Not a Waiver of Default 30
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603. Applicable Law 30
700. GENERAL PROVISIONS 30
701. Notices, Demands and Communications Between the Parties 30
702. Enforced Delay;Extension of Times of Performance 31
703. Successors and Assigns 32
704. Memorandum of Agreement 32
705. Relationship Between Commission and Participant 32
706. Commission Approvals and Actions.. 32
• 707. Counterparts 33
708. Integra don 33
iii
709. . Intentionally Omitted 33
41111
710. Titles and Captions - - 33
'7111 Interpretatiort , - 33
712. No Waiver 33
713. Modifications 33
714. Severability 33
d715. Computation of Time
716. tegal Advice •
717. Time of Essence
718. Cooperation 34.
719. Conflicts ofInterest 34
720. Time for Acceptance of Agreement by Conunission
721. Participant's Indemnity
722. Date of Agreement 35 •
411
723. Nonliability of Officials and Employees 6f the Corrinfission and the
Participant 35
724. Assignment by Commission - 35
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• ATTACHMENTS
• Attachment No. 1 Site Map
Attachment No.2 Site Legal Description
Attachment No.3A Promissory Note—Eligible Construction Cost Loan
Attachment No.3B Promissory Note—Tax Increment Loan
Attachment No.4 Schedule of Performance
Attachment No.‘5 Scope of Development
Attachment No,6 Certificate of Completion
Attachment No.7 Memorandum of Owner Participation Agreement
Attachment No.8 Agreement to be Recorded,Affecting Real Property
Attachment No.9 Eligible Project Costs Budget
Attachment No. 10 Guaranty
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• OWNER PARTICIPATION AGREEMENT
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THIS OWNER PARTICIPATION AGREEMENT (this "Agreement") dated
for reference purposes ._ , 2001, is entered into by and between the
COMMUNITY DEVELOPMENT.COMMISSION OF THE CITY OF PETALUMA,
a public body corporate and politic (the "Commission"), and LOK PETALUMA
MARINA HOTEL COMPANY, LLC, a California limited-liability"company (the
"Participant").
RECITALS
The following;recitals area-substantive part of this Agreement;,capitalized
terms used herein and not otherwise defined are defined in Section 100 of this
Agreement:
A. The.Commission is a public body, corporate and politic, exercising
governmental functions 'and powers and organized and existing under the
Community Redevelopment Law of the State of California (Health and Safety
• Code Section 33000, etseq.).
B. In furtherance of the objectives of the Community Redevelopment
Law, the Commission desires to encourage,and promote the redevelopment of a
certain approximately two (2) acre portion of the Petaluma Community
Development Redevelopment Project generally located at the junction of the
Petaluma River and U.S. Highway 101 in the City of Petaluma and more
particularly depicted in Attachment No. 1. attached hereto (the "Site").
Participant is the fee owner of the Site.
C. Participant qualifies as an "owner participant" as that term is
defined in the Redevelopment Plan and the Community Redevelopment Law.
Participant desires to participate in the redevelopment of the Site in accordance
with the Community.Redevelopment Law and the terms of this Agreement.
D. The Commission is authorized and empowered tinder the
Community Redevelopment Law, to enter into agreements for the acquisition,
disposition and development of real property and otherwise to assist in the
redevelopment, of real property within a redevelopment project area in
conformity with.a redevelopment plan adopted for such-area; to acquire real and
personal property,in redevelopment project areas; to receive consideration for
the provision 'by the Commission of redevelopment .assistance; to make and
execute contracts and other instruments necessary or convenient to the exercise
•
of its powers; and to incur indebtedness to finance or refinance redevelopment
projects.
E Commission and-Participant•d"esire to.:enter into this Agreement in •
order to,implement the provisions Of the Redevelopment Plan byproviding for
_(i) the Commission Assistance to, the Participant. and (ii) the Participant's
improvement of the Site with a. three star/four diamond, four (4) story, one
hundred eighty-three (183) roorn,Sheraton Hotel, Participant's expansion and
improvement of;the parking lot located directlyadjacent to the Site and depicted
on Attachment 1 attached-hereto (the "Parking Lot") to include,an additional
one hundred!eighty-four(184) parking spaces, and Participant's construction.of
. appurtenant improvements, all as described in the Scope of Development
attached hereto as Attachment No.5:
F. The Commission further desires to,enter into this.Agreement'to
ensure the redevelopment of the Site because, pursuant to the'Community
Redevelopment Law and the Redevelopment-Plan, such actions will help to
eliminate blight within the Project Area, increase employment opportunities
within the Redevelopment Project, generate additional taxes with which,'the
community can;increase and improve the supply of low- and moderate income
housing and assist in providing.an;environment,for the social, psychological acid
economic growth and well-being,'of the'citizens of the City.
•
C. The fulfillment of this Agreement-is in the vital and:best interests,of
the City,and the health, safety and welfare of its residents and in accordance with
the provisions of applicable federal, state and local law.
NOW, THEREFORE, the Commission and the Participant hereby agree as
follows: •
•
100. DEFINITIONS
"Agreesitent means this Owner Participation Agreement between the
Commission and the Participant.
"Agreement to be Recorded Affecting Real Property ;means the
agreement to be recorded affecting real property attached hereto as Attachment
No. 8.
"Capital Event" means any transaction prior to the Sale,of the Project,
including; without limitation, a'refinancing of the Project, the conveyance of a
partial:interest in the Project or°the:Site,'a condemnation of;the Proje_ct(or similar
eminent domain taking or disposition in lieu thereof) or destruction;b.y" casualty,,,
pursuant. to which the Managing. Member of Participant receives any 'capital.
distribution in excess of the Managing Member's Equity Repayment
"Certificate of Completion" ,means the document which-evidences the
P
•
articipant's satisfactory completion of the construction and installation,;of the
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LOK Hotel OPA-final 2
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Improvements, asset forth in.Section 311 hereof; in the form of Attachment No. 6 .
hereto which is incorporated herein.
"City" means the City of Petaluma,a California municipal corporation.
"Commission" means the Community Development Commission of the
City of Petaluma, a public body, corporate and politic, exercising governmental
functions and powers and organized and existing under Chapter 2 of the
Community Redevelopment Law of the State of California, and any assignee of
or successor to its rights, powers and responsibilities.
"Commission Assistance" means both the Eligible•Construction Cost Loan
and the Tax Increment Loan. -
"Commission Equity Share" is defined in Section 504 hereof.
"Conditions Precedent to Eligible Construction Cost Loan Disbursement"
is defined in Section 502.1 hereof.
"Conditions Precedent to Tax Increment Loan Disbursement" is defined in
Section 503.2 hereof.
• - "Date of Agreement" means the date upon which this Agreement shall
have been signed by the Commission.
"Default" means.the of a party to perform any action or covenant
required by this Agreement within the time periods provided herein following
notice and opportunity to cure, as set forth inSection 601 hereof.
"Deferred Participation Payments" is defined in Section 504 hereof.
"Eligible Construction Cost Loan" is defined in Section 502 hereof.
"Eligible Project Costs" is defined in Section 501:1 hereof.
"Eligible'.Project°Costs Budget" means the Eligible Project Costs Budget
attached hereto asAttachment No. 9.
"Governmental, Requirements" means all laws,, ordinances, statutes,
codes, rules, regulations, orders and decrees, of the United States, the State of
California, the County of Sonoma, the City, or any other political subdivision in
which the Site is located, and of any•other political subdivision, commission or
instrumentality exercising jurisdiction over the Commission, the Participant or
the Site.
• "Gross Project Revenues" means the entire gross receipts of every kind
and nature (excluding Transient Occupancy Tax Revenues and sales tax
revenues collected by the Participant) actually received by Participant from
LOK Hotel OPA-final 3
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operation of the Project, including, without limitation; Project Room'Revenues, •
food and beverage, banquet and restaurant sales and parking receipts.
"Hazardous Materials"'means any substance, material, or waste which is
or becomes regulated by any ,Iocal governmental authority,' the State of
California, or the United,States Government, including, but not limited to, any
material or substance which is (i) defined:,as a "h_azardous'waste," "extremely
hazardous waste," or "restricted hazardous waste" under Section 25115„25117 or
. 251227, or listed,pursuant to Section 25140. of the California.Health' and Safety
Code, Division 20, Chapter 6:5°(Hazardous`WasteControl Law), (ii):defined.as a
"hazardous substance” under Section 25316 of the,California Health and.Safety
Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance
Account,Act), (iii) ,defined as a "hazardous material," "hazardousssubstance," or
"hazardous waste" under Section 25501 of the California Health and Safety
Code, Division.20, Chapter 6.95!(Hazardous Materials Release ResponsexPlans
and Inventory),(iv) defined"as a."hazardous substance" underiSection,25281 of
the California Health and Safety Code, Division'20, Chapter 6.7 (Underground
Storage of Hazardous Substances), (v) petroleum, (vi) friable asbestos,
(vii) polychlorinated byphenyls, (viii) listed under Article 9 or defined as
"hazardous" or "extremely hazardous" pursuant to Article 11 of=Title'22 of the
California Administrative Code, Division 4, Chapter. 20, (ix) designated' as
"hazardous substances" pursuant to :Section 311 of the Clean Water. Ad
(33 U.S.C. §1317), (x) defined as a "hazardous waste" pursuant:to Section 1004 of
the Resource Conservation and Recovery Act, 42 U:S:C. §6901 et seq. (42 U:S;C. •
,§6903) or (xi):defined as "hazardous substances pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation, and. Liability Act,
42 U.S.C. §9601 et seq.; as the foregoing statutes and regulations now+exist:or
may'hereafterbe amended.
"Hotel Rating" means ;either a "AAA" hotel rating of at least: four (4)'
diamonds, or a "Mobile Travel Guide" lintel°rating of at least three (3) stars.
"Improvements" means the four,(4);story; one hundred eighty-three (183)
room,;:Sheraton hotel, which meets the Hotel Rating requirements, together with
the expanded parking facilities (including the additional one hundred eighty-
four 1(184)•parking;"spaces) and appurtenant-on-site and off-site,improvements to
be constructed and"installed by Participant.as set forth herein and in the Scope of
Development
"Indebtedness" .means any and all indebtedness of the Commission,
outstanding as of the Date of Agreement, together with any "Tax Allocation
Bonds." Indebtedness shall also-'include all such Indebtedness refinanced from
time to;time'by Commission after theDate of Agreement.
"LLC 'Operating :Agreement" means. the LOK Petaluma Marina-Hotel
Company;,LLC Operating Agreement dated April 17, 2000, as the•s`ame.may be
amended:_frorn time to time.
LOK Hotel OPA-final 4
• "Managing Member's Net Income. from Capital. Events" means any
amounts to be=paid to the Managing Membersof Participant upon the occurrence
of a Capital Event and/or upon the Sale of the Project in excess of the Managing
Member's Equity Repayment.
. "Managing Member's Net Income from Operations" means those
amounts to be paid to the Managing Member of Participant from the net income
•
from operations of the Project.
"Managing Member's Equity Repayment" means the amounts to be paid
to the Managing Member, of Participant upon the occurrence of a Capital Event
and/or upon the,Sale of the Project in order to repay the Managing Member for
all or a portion of its capital investment in the Project, up to a maximum of SIX
MILLION DOLLARS ($6,000,000).
"Managing Member" means Lok Petaluma Marina Development
Company, LLC, a California limited liability company, the sole,managing "Class
B" member of Participant as defined in the LLC Operating Agreement.
"Memorandum ofAgreement" is defined in Section 704 hereof.
"Non-Ivlanaging'Members" means the non-managing "Class A" members
of Participant as defined in the LLC Operating Agreement.
• "Notice" shall mean a notice in the form prescribed by Section 701 hereof.
"Operating Year" shall mean the one-year periods commencing upon the
first January 1 or July 1. following the date that Participant has obtained a
certificate of occupancy for the Project and opened for business to the public and
ending on the calendar day (i.e., December 31 or June 30, as applicable)
immediately prior to the first anniversary thereof; each succeeding Operating
Year shall commence on the day following the last 'day of the preceding
Operating Year and shall terminate on the calendar day immediately prior to the
first anniversary of such succeeding Operating Year..
"Parking Lot" means'the existing parking lot::located directly adjacent to
the Site and depicted m the Site Map, which is to be improved.and expanded by
Participant as provided In the Scope of Development.
•
"Participant" means Lok Petaluma Marina Hotel Company, LLC, a
California limited liability coinpany. . .
"Pass-Through Agreements" means: (i) the Agreement By and Among
the City of Petaluma, California, the Community Development Commission of
the City of Petaluma,,the.Sonoma County Library and, the County of Sonoma,
dated September, 1988, and (ii)payments or allocations pursuant to Resolution
No. 87-88-72 of the Cinabar School District, Resolution No. 106 of the Old Adobe
Union School District, Resolution No. 8889-.1 of the Board of Education of the
LOK Hotel OPA-final . 5
it
Petaluma City(Elementary) School District;}Resolution No.-8889 -2 of the Board •
of Education of the Petaluma Joint Union High School District, Resolution
No 88-6:of the Waugh School District; Resolution No 7=11-88 of-the Sonoma
County Junior College District and the Resolution of the Sonoma County
Superintendentof'Schools dated December 29, 1993.
"Planned Development Plan" means the planned development plan for
the Siteapproved by the City Council of the City of Petaluma on November 16,
. 1988,.and by the'Site,Plan-and Architectural Review Committee on May 27, 1999:.
"Project Room,Revenues means the entire ;gross receipts received by
Participant, allocable to the renting of hotel rooms within the Project:
"Project" means the Site and Improvements.constructed On the Site, but
excluding any Improvements constructed.off the Site, as set forth herein..
"Promissory Note Eligible Construction Cost Loan" means the '
promissory note securing Participant's obligation to repay the Eligible
Construction Cost Loan to Commission .in the form attached he reto, as
Attachment No.3A:
"Promissory Note - Tax "Increment Loan"' means the promissory, note
securing Participant's obligation to.repay the'TaxIncrement Loan to•Commi_ssion - •
in the form attached hereto as m
Attachent No. 3B,
"Promissory' Notes" means both the Promissory Note: - Eligible
Construction Cost Loan and the Promissory Note -Tax Increment Loan.
"Property' Tax Increment .Revenues" shall mean the property tax
increment revenues. allocated to and received'by the Comrrussion pursuant to
Section 33670(b)Of-the.Community Redevelopment Law, as said statute maybe
amended from time to, time, by application of the one percent (1%) tax levied.
against-real property as permitted by Article XIIIA of',the California Constitution,
in an:amount attributable by the Sonoma County Assessor to the Redevelopment
Project, but specifically excluding therefrom the ;following: (a) charges for
County'administrative charges,.fees, or costs (b)'the, portion of tax increment,
revenues from the Redevelopment Project attributable to any special taxes or
assessments or voter-approved indebtedness,'(c) the portion.of the tax increment, -
revenues from the Redevelopment Project, (currently twenty percent (20%)' or
such greater amount as may be amended from time-to-time by the State
Legislature) equal to the percentage of such revenues that-the Commission is,
required, by law to set-aside in the Redevelopinent Project as ,a whole for
affordable housing purposes, pursuant to the Community Redevelopment Law;
(d) the portion of the tax increment revenues from,the Redevelopment Project
which the Commission is required to pay or'pays to any and all governmental
entities as required by the Community Redevelopment Law or pursuant to the-
Pass 'Through Agreements, and any other agreements entered into by the •
Commission and such affected taxing entities implementing; the Pass`Through.
LOK.Hotel OPA-final 6
Agreements, (e)=the portion,oL ta,c increment.reverlues from the Redevelopment
Project equal to the percentage of.sizch revenues in the.Redevelopment Project as
• a whole which payments'the State may mandate that the Commission pay from
time to time in the future, including, for example, and without limiting the
generality of the foregoing, any payments which the Commission may be
required to pay to the Education Revenue Augmentation Fund pursuant to
Section 33681, et seq.; of the Community Redevelopment Law; and (f) that
portion of tax increment revenues pledged to repayment of Indebtednes .
"Redevelopment Plan" means the Redevelopment Plan for the
Redevelopment Project„adopted by Ordinance No 1725 of the City Council of
the City on August 17, 1988,..-as amended, and incorporated herein by reference.
"Redevelopment.Project" means the Petaluma Community Development
Project, adopted by the City pursuant to the Redevelopment Plan.
"Sale of the Project" means the first conveyance.by Participant of all of its
interest in the Project at arms length, to a third party not affiliated with the
Participant or any•of•its Members or any person or entity which comprises its
Members, after the completion of the Improvements as evidenced by the
Commission's recordation of the Certificate of Completion in accordance with
Section 311 hereof.
• "Schedule of.Performance" means that certain Schedule of Performance
attached hereto as Attachment No 4 and incorporated herein by reference, .
setting out the dates and/or time periods by which certain obligations set forth
in this Agreement must be accomplished. The Schedule of Performance is
subject to minor revision from time to time as mutually agreed upon in writing
between the Participant and the Commission's Executive Director, and the
Commission's Executive Director is authorized to''approve such minor revisions
• as he or she deems reasonably necessary.
"Scope of Development" means that certain Scope of Development
attached hereto as Attachment No: 5 and incorporated by reference, which
describes the scope, amount and quality of the, work of Improvements to be
constructed and installed by the Participant. The Scope of Development is •
subject to revision only as provided,herein.
"Site Legal Description" means the description of the Site which is
attached hereto as Attachment No 2 and incorporated herein.
"Site Map" means the map of the.Site, together with the Parking Lot and
certain other adjacent areas, which is attached hereto as Attachment No. 1 and
incorporated herein.
"Site" means that certain real property comprising a portion of the
Redevelopment Project, generally located at the junction of the Petaluma River
and U.S. Highway 101 in the City of Petaluma and consisting of approximately
LOK Hotel OPA-final 7
two (2) acres,.as delineated on the Site Map and more particularly described in •
the Site Legal Description.
"Tax Allocation:.Bonds" shall mean any'bond, certificate of participation
or csimilar indebtedness or obligation of the Commission now existing or
hereafter incurred payable in whole or in part from the proceeds of taxes
allocated and paid to the,Commission from within the Redevelopment;,Project •
• pursuant;to Health and Safety Code Section 33670(b)' (as said statute may be
amended from time to time and include any legislative substitutions or
subventions.for property,tax increment revenues) that has been sold pursuant to
a publicadebt offering or that represents the private;placement of debt including,
but not limited to, any obligation of the Commission to a joint powers authority
that offers bonds,to the public or through a private•placement.
"Tax Increment Loan Cap" is defined:in Sectoin 503 hereof.
"Taxlncrement Loan" is defined in Section]503 hereof:
"Transient Occupancy Tax,Revenues" means those transient occupancy
tax revenues received:by the City pursuant to Ordinance No 1001 NCS adopted
by the City Council of the City`on October 5, 1970,in accordance with California.
Revenue.and Taxation Code Section 7280.5, which result from the levy of the
transient occupancy tax,on accommodations located on the Site. •
200. REPRESENTATIONS AND'WARRANTIES
201. Commission Representations. Commission represents and
warrants'to Participant as follows:
(a) Authority. Commission Is 'a public body, corporate and
politic, existing ,pursuant to• the California iCommunity Redevelopment Law
(California Health and.Safety Code Section,33000),whichkhas been authorized.to
•
transact business pursuant to action of the City. Commission has full right,
power and lawful .authority to perform-its obligations hereunder and the.
• execution,performance and delivery of this Agreement by Commission has:been
fully-a ithorized-by alirequisite,aduons on,the part'of Commission.
(b) •No 'Conflict:. To the best of' Commission's.knowledge,
Commission's execution, delivery and performance-of its:obligations•under this
Agreement will not constitute a default or a breach under any contract,
agreement or order to which Coiximission is apartyor by-]which it is bound. •
(c) No Commission Bankruptcy. Commission is not the subject
of a bankr-uptcyproceeding.
LOK Hotel OPA-final 8
•
Until the completion of the,work of Improvements; iCommission shall,
upon:learning of any fact or condition which would cause'.any of the warranties
and representations in this Section 201 not to be true, immediately give written
notice of such fact or condition to Participant.
202. Participant's Representations. Participant represents and warrants
to Commission as follows:
(a). Authority. Participant is a duly organized limited liability
company organized within and in good standing under the laws of the State of
California. The copies of the documents evidencing the organization of the
Participant which haye been delivered to the Commission, including, without
limitation, the LLC Operating Agreement, are true and complete copies of the
originals, as amended to the date of this Agreement. Participant has full right,
power and lawful authority to undertake all obligations as provided herein and
the execution, performance.and delivery of this Agreement by Participant has
been fully authorizedbyall requisite actions on the part of the Participant.
(b) No Conflict. To the best of Participant's knowledge,
Participant's execution, delivery and performance of its obligations under this
Agreement will not constitute a default or a breach under any contract,
agreement or order to which the-Participant is a party or by which it is bound.
• (c) No Participant Bankruptcy. Participant is not the subject of
a bankruptcy proceeding.
(d) Leases and Other Interests. . To. the best of Participant's
knowledge, there are no unrecorded leases affecting the Site or any portion
thereof, and no other person or entity has any-unrecorded interests in or-the right
to possess the Site or any portion of it.
(e) Title. Participant, at the time of the execution of this
Agreement,owns fee simple title to the Site. •
(f) Litigation. To the best of Participant's knowledge,there are
no actions, isuits, material claims, legal proceedings, or any other proceedings
affecting the Site or any-portion thereof, at,law or in equity before "any court or
governmental Commission, domestic or foreign.
(g) Governinental,Comnliance. Participant has not,received any
notice from any governmental Commission or authority alleging that the Site is
currently in violation of any law, ordinance, rule, regulation or requirement -
applicable to its use.and operation. If any such notice or notices are received by
Participant-following 'the date this Agreement is signed by the Commission,
Participant shall notify Commission within ten (10) days of receipt of such notice.
• (h) Parking Lot Improvements. Participant has all legal rights
necessary to construct, the additional approximately one hundred eighty-four
LOK Hotel OPA-final 9
(184) parking spaces on.the:Parking Lot as provided herein ancbin,the Scope of •
Development.
Until the expiration or earlier termination of this Agreement, Participant
shall, upon learning of any fact or condition which would cause any of the
warranties and representations in;thi§Section 202 not to be true, immediately
give written noice:of such fact;or`condition to Commission.
203. Prohibition Against Change in Ownership, Management and
Control'of Participant. The qualifications and ideritityof':the Participant and its
Managing Memberare'.of particular=concern to the Commission. ItisYbecause of
those unique qualifications and identity that the Commission has.entered into
this Agreement with the Participant No vokintary or involuntary successor=
interest of the Participantshall.acquire,,anyinterest in the Site 'or the Project nor
any fights orpowers under this Agreement,except--as expressly set;forth herein.
Prior to the Sale of the°Project by the Participant, the Participant shallnot
assign or transfer this Agreement, the Project or the Site, or any portion(s)
thereof, or iaterest(s) therein, or any right(s) hereunder; nor shall there be any
change in the identity of the Manaaging Member or the managing:member of the
Managing Member (LNIDC; Inc.; a California corporation), without:the prior
writtenapprovaliof the Commission's Board.ofjDirectors. :Notwithstanding the
foregoing, Participant shall not be required to obtain Commission's Board of
Directors approval prior to submitting,allot,line adjustment application which is `
reasonably necessary to facilitate_ and operation of the Project:or
granting those easements over, under and across the.Site as shown on.theSite
Plan fortheProject dated May 1, 2000. Assignments for`financing purposes:shall
be tstilijett to review,and approval,by the Commission's Board of Directors in
accordance with this Section 203 and with the requirements Of,.Section 313.1,,
below. Nothing;in:this Agreement shall be; to release Participant from
its obligations to the Commission-,set;forth in theLPromissoryNotes at the time of -
any refinancing, additional financing or;other transaction constitiitingaa Capital
Event prior to the.Sale of the Project. The Commission Board shall,have the
right, to be exercised reasonably, to disapprove any transfer, assignment or
refinancing which. would diminish or, otherwise impair the ability of the
Commission to receive payment of the Deferred Participation Payments, as
proyided`in.Section 504, below.
Participant shall notify Commission of any- proposed transfer; assignment
or refinancing promptly upon,commencement of,riegotiations in connection with
such event. The Commission's Board.of Directors shaIl approve or;disapprove;
any requested transfer, assignment,or,refinancing'within thirty (30) days after
receipt of a written .request for approval from Participant, together with such
documentation as may reasonably requested by the• Commission (which
requesttmustbe :made within fifteen (15) :d_ays,of receipt of the initial Written
request.for approval from Participant) to determine whether the proposed
transfer, `assignment or refinancing constitutes a Capital Event triggering the
Commission's•right'to the Deferred;Participation Payments. The documentation
LOK HotelOPA-final 1'0' •
•
• to be provided. by Participant to the Commission .may include, without
limitation, all loan documents in.e"onnection with.any'proposed refinancing and
all documentation which the Con n ssion determines is'reasonably necessary to
evaluate the proposed transaction and the proposed assignee's/transferee's
experience and qualifications. The Commission's Board of Directors shall not
unreasonably withhold or delay its approval of a transfer or assignment to a
proposed transferee/assignee who in the reasonable opinion of the
Commission's Board of Directors is financially capable and has the development
• qualifications and experience to perform the duties and obligations of the
Participant hereunder; provided, however, that if the Commission's Board of
Directors determines that such transfer/assignment constitutes a Capital Event,
the Commission's Board of Directors approval shall be conditioned upon the
Commission's' receipt. of the entire amount of. the Deferred Participation
Payments payable to Commission as provided in Section 504, below.
Prior to any proposed assignment being considered for approval by the
Commission's Board of Directors, the Participant shall deliver to the Commission
the form of a proposed written assignment and assumption agreement in which
the assignee would expressly agree to assume all rights and obligations of the
Participant under this Agreement which arise after the effective date of the
assignment, and -in which the assignee would agree to assume, or Participant
would expressly remainresponsible for, all performance of the Participant which
arose prior to the effective' date of the assignment. The assignment and
• assumption agreement shall be in a form reasonably acceptable to the
Commission's legal counsel. No later than the date the assignment becomes
effective, Participant shall deliver to the Commission a fully executed
counterpart of the assignment and assumption agreement.
Notwithstanding any other provision of this Agreement to the contrary,
Commission's Board of Directors approval of a transfer or assignment of this
Agreement, the Project, or the Site or any interest therein shall not be required in
• connection with any of the following; provided, however, if such transfer or
assignment listed below constitutes a Capital.Event. the Participant_shall be
required to pay to the Commission the entire amount of the Deferred
Participation Payments payable to Commission as provided in Section 504,
below:
(a) Subject' to the Participant submitting the assignment and -
assumption agreement referred to above and the approval of such assignment
and assumption agreement by the Commission,. any transfer to an entity or
entities in which Participant retains a minimum of fifty percent (50%) of the
ownership or beneficial interest and retains management and control of the
transferee entity or entities and so long as. Participant is- the managing
member of a.limited liability company.or is th managing general partner of any
general or-limited partnership to which an interest in the Agreement,the Site or
• the Improvements is transferred pursuant to this Section 203(a);
LOK Hotel OPA-final 11
1 ri
(b) Transfers resulting from the death or mental or physical incapacity •'
of an individual having an interest in.the-Managing`Member;
(c) The granting'of temporary or. permanent easements or permits to
facilitate development-of the Project;
(d) Any requested assignment for financing purposes (subject to),such
. financing being considered and approved by the Commission pursuant' to
. Section 313.1 below), including the grant.of a deed of trust to secure the-funds
necessary for construction and permanentafiiiancing of the Improvements;
(e). Any transfer of the interest of Non-Managing :Meinbers of
Participant, provided such transfer does riot-materially diminish the powers of
the Managing Member or otherwise cause a material change in the rights to
manage and control Participant; and
(f) Any transfer or assignmentin trust of the interest of an'individual.
having:an interest in the Managing.Member for the benefit of such individual's
spouse, children, grandchildren or other family
In°the event of:an.assignment.or transfer by the Managing Member'und'er
any of the above subsections,203(a) through, 203(d), inclusive, or. 203(f), not
requiring the Commission's prior approval, Participant nevertheless agrees that
it shall give at least fifteen (13) days prior written.Notice to Commission of such •
assignment or transfer. In addition, Commission shall be entitled to review such
documentation as may be reasonably required by the Commission for the
purpose of determining whether such change constitutes' a Capital Event
triggering the Commission's rights to payment of the Deferred Participation
Payments.
•
The restrictions of this Section 203 shall terminate. upon the earlier of
(i) the Sale of the Project, or (ii) payment, in full, of the entire outstanding.
principal"balance of the Promissory Notes.
204. Amendments to LLC Operating Agreement: Before entering into
any amendment to the LLC Operating Agreement, Participant shall first submit"
the proposed :amendment to the Commission's Executive Director who shall
have the right to reasonably disapprove any such amendment'which would.
materially diminish or otherwise impair, the ability of the Commission to.receive
(relative`•to any"payment, withdrawal, or distribution to the Managing Member)
payment of the?Deferred,Participation.Payments. Within ten (10) business days.
following;receipt:of the proposed amendment, the Executive Director shall either
approve or disapprove the requested amendment. Participant shall not enter
•
into any amendment to the LLC Operating Agreement which is ;reasonably
disapproved by the Executive Director pursuant to this 'Section 204. The.
restrictions of this Section 204 shall terminate upon the first to occur of (i)the
Sale of the Project, or (ii) payment, in full, of the entire outstanding principal
balance of the Promissory'Notes.
COK Hotel OPA-final 12 - •
•
• 205, Guarantee. Simultaneously with the execution of this Agreement,
Participant shall cause the Guaranty (in the form-attached as Attachment No 10)
to be executed by Lok. Petaluma Marina Development Company, LLC, a
California limited liability company, the Managing Member of Participant.
300. DEVELOPMENT OF'THE SITE
301. Scope of•.Development. The Participant shall construct and install
the Improvements,in one phase in accordance with the.Scope of Development
and the plans, drawings and documents -submitted by the Participant in
connection with the Planned Development Plan. All such work shall be
performed by a licensed contractor.
302. Permits and Approvals. Before commencement of construction of
the Improvements or other works•of improvement upon the Site, the Participant
shall, at its expense, secure or cause to be secured any and all land use and other
entitlements, permits and approvals which may required by the City or any
other governmental commission affected by such construction or work. The
Commission staff will. work 'cooperatively with the Participant to assist in
coordinating the expeditious processing and, consideration of all necessary
permits, entitlements and approvals. However, the execution of this Agreement
does not constitute the granting of, or a commitment to obtain,any required land
use permits, entitlements or approvals required by the Commission or the City.
303. Schedule of Performance. The Participant shall commence and
complete construction of the Improvements and satisfy all other obligations and
conditions of this Agreement within the times established therefor in the
Schedule of Performance.
304. Cost of Project and Improvements. Except as otherwise expressly
provided in .Section 500 below, Participant shall bear the entire cost of
developing the Project and designing and constructing the work of
Improvements..
305. Insurance Requirements. The Participant shall take out and •
maintain or shall cause its contractor to take out and maintain throughout the
term of this Agreement,-a commercial general liability policy in the amount of
TWO MILLION DOLLARS-($2,000,000), combined single limit, or such other
policy limit as the Commission may approve at its discretion, including
contractual liability,as shall protect the Participant, City and Commission from
claims for such damages. Such policy or policies shall be written on an
occurrence form.. The Participant shall also obtain and maintain throughout the
• term of this Agreement a comprehensive automobile liability policy in the
amount of ONE MILLION DOLLARS ($1,000,000), combined single limit, and
builder's all-risk insurance in an amount not less than the full insurable value of
LOK Hotel OPA-final 13
•
the Improvements on a replacement cost;basis and shall furnish or cause to be •
furnished to the Commission evidence ',satisfactory to the Commission that
Participant and,any contractor with whorri_it has-contracted for the performance
of work.on the Site or otherwise pursuant to this Agreement carries workers'
compensation insurance as required by law. The Participant shall furnish a
notarized certificate of insurance countersigned by an authorized agent of the
insurance carrier on:a form approved by the Commission setting forth the
general provisions of the insurance.coverage. This'cotmtersigned certificate shall
' name the City and the Commission and their respective officers, agents, and
employees as additionally insured parties under the policy,,.and the certificate
shall' be accompanied by a duly' 'executed" endorsement evidencing such
additional insured status.. The.certificate and endorsement by the insurance
carrier shall contain a statement of obligation{ on the part of the carrier to notify
City and the Commission of any material change, cancellation or termination of
the coverage at least thirty (30)'daysin advance of,the effective date of,anysuch
material change, cancellation or termination and shall be iri a form.reasonably
acceptable to the.City. Coverageprovided hereunder by the-Participant shall
primary insurance and not be contributing-with any insurance or self-insurance,
maintained by the Commission or City?. the policy shall contain Such iati.
endorsement. The insurance policy or the endorsement shall°contain a waiver of
subrogation for the benefit of the City and the Commission. The Lrequired
certificate and endorsement shallbe furnished by the Participant to Commission
and approved by the City prior to the commencement of the 'work of
Improvements. •
306. Rights of Access. ',Prior to the; issuance 'of a `Certificate of
Completion (as specified in Section 311 of this Agreement), for purposes of
assuring'compliance with this Agreement, representatives of the Commission
shall-have the right of access t6 the Site, without charges or fees', at normal •
construction hours during the period of construction for the purposes of this
Agreement,, including butnnot limited to, the inspection of the Prbjectcand the
work of Improvements so long-as the Commission representatives comply with.
all safety' rules. The Commission (or its representatives) shall, except
emergency',situations, notify the Participant prior to exercising its rights
pursuant to this Section 306. Nothing,herein•shall be deemed to limit the ability
of the City to conduct code enforcement and other administrative inspections of
the Site in accordance with applicable law.
307. CompliancerWith Laws;-Indemnity, Waiver: The Participant{shall
carry out'the work of Improvements inconformity with all applicable„laws,
including;without.limitation all applicable,state labor standards, the City-zoning
and development standards; building, plumbing, mechanical and electrical
codes; all other provisions of the City of`Petaluma Municipal Code; and all
applicable disabled and handicapped=access requirements, including without
limitation the Americans With,Disabili ties,Act, 42`U.S.C._Section 12101, et.seq.,
Government:Code Section,4450, et seq., Government Code Section:11135, etseq., •
and the Unruh Civil Rights Act, Civil Code'Section'51, et seq.
LOK.Hotel OPA-final 14
,
•
• Participant shalt defend, indemnify and hold harmless the Commission
•
and the City and its'and their.officers, employees, agents and representatives
from and against any and all present and future liabilities, obligations, orders,
claims; damages, fines, penalties and expenses (including attorneys' fees and
costs) (collectively, "Claims"), arising out of or in any way connected with
Participant's obligation to comply with all laws with respect to the work of
Improvements including, without limitation, all applicable state labor laws and.
standards.
The Participant hereby waives, releases and discharges forever the
Commission and the City, and its and their employees; officers, agents and
representatives, from any:and all present and future Claims arising,out of or in
any way connected with,Participant's obligation to comply with all laws with
respect to the work of Improvements including, without limitation, all applicable
state labor laws and standards.
The Participant is aware of and familiar with the provisions of Section
1542 of the California:Civil Code which provides as follows:
"A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially
• affected his settlement with the debtor."
As such relates to this Section 307, the Participant .hereby waives and
relinquishes all rights and benefits which it may have under Section 1542 of the
California Civil Code.
Participant Initials Commission Initials
308. Taxes and Assessments. The Participant shall pay prior to
delinquency all ad valorem real estate taxes and assessments i on the Site, subject
to the Participant's right to contest in.good faith any such taxes. The Participant
shall remove or have removed any levy or attachment made on the Site or any
part thereof, or assure the satisfaction thereof within thirty (30) days following
the date of attachment or levy.
309. Condition of the Site. The Participant shall take all necessary
precautions to prevent the release into the environment of any Hazardous
Materials which are located in, on or under the Site. Such precautions shall
include compliance with all Governmental Requirements with respect to
Hazardous Materials. In addition, the Participant shall install and utilize such
equipment and implement and Adhere to such procedures as are consistent with
• the standards prevailing in the industry, to the extent such standards exceed
applicable Governmental Requirements; as respects the disclosure, storage, use,
removal and disposal of Hazardous Materials. Participant shall cause each
LOK Hotel OPA-final . 15
release of. Hazardous Materials in, on or' under the, Site to be remediated in •
accordance with all Governmental Requirements.
Participant agrees to indemnify,. defend and hold the Commission and
City harmless from and against any claim, action, suit, proceeding;.loss, cost,
damage, liability, deficiency, fine, penalty, punitive damage, Or expense
(including, without limitation, attorneys' fees), resulting from,_arising=out of, or .
based upon. (i)the presence, release use, generation, discharge, storage or
disposal of,any, Hazardous Materials on, under,in or about, or the transportation.
of any such Hazardous Materials to or from, the Site, or (ii'),.the'violation, or
alleged violation, of any statute, ordinance, order, rule, regulation, permit,
judgment or license relating to the use, generation, release, discharge, storage,
disposal or transportation of Hazardous Materials 'on, under, in or about, to or
from, the Site, caused by Participant or any of Participant's predecessors in
interest., Thistindemnity,shall include, without limitation, any damage, liability,
fine,penalty,parallel indemnity, cost or expense arising fromiorou •of,any claim,
action, suit of proceeding for personal injury (including sickness, disease, or
death), tangible or intangible property damage, compensation for,lost wages
business income, profits or other economic or'consequential loss, damage to the
natural resource or the.environment,.nuisance, contamination,leaky'spill; release
or other adverse:effects on the•environment.
310. Liens and Stop Notices. The ,Participant shall not allow to be
placed on the Site or,any part thereof any lien or stop notice. If a claim of a lien
or stop notice :is given or recorded affecting the Project, the.Participant,shall
within.thirty (30)-days of such recording,or service:'.
(a) Pay and discharge the!same;,or
(b) Affect the release, thereof, by recording and delivering, to the
Commission asuretybond in sufficient form and arhount; or
•
(c) Provide the Commission with, tother. assurance' which,. the
Commission deems, in its sole discretion, to be satisfactory for the payment of
such lien or bonded 'stop notice;and for the full and continuous protection of
Commission from the'effect of suchlien,or bonded stop notice.
311. Certificate of Completion. Promptly . after completion of •
construction of the Improvements in conformity with this Agreement, the
Commission shall furnish the Participant with 'a "Certificate of Completion"
substantially in the form of Attachment No 6 attached hereto. The Co mmission.
shall not unreasonably withhold suchrCeraficate of Completion. The Certificate:
of Completion shall.be conclusive determination,of satisfactory completion of the
work •of Improvements 'and the Certificate of Completion shall so state. Any •
party then owning or thereafter purchasing, leasing or otherwise acquiring any
interest in the Site shall not (because of such ownership, purchase, lease or •
acquisition) incur any obligation,or liability under this Agreement:,except for
•
LOK'Hotel OPA-final 16
• those continuing covenants as set forth in the Agreement to be Recorded
. Affecting Real Property set:forth in Section 401„hereof.
If the.Commission refuses or fails to furnish the Certificate of Completion,
the Commission shall, within thirty (30) days after Participant's written request
therefor, provide the Participant with a written .statement.of the reasons the
Commission refused or failed to furnish the Certificate of Completion. The
statement shall also contain the Commission's opinion of the actions the
Participant must take to obtain the Certificate of Completion. Provided
Participant indicates-.in its request for issuance of,the Certificate of Completion
that Commission's failure to provide such a written statement within thirty (30)
days shall be deemed. approval of the request; then Participant's request for
issuance shall be deemed approved if Commission fails to so respond within said
thirty (30) day period. The Certificate of Completion shall not constitute
evidence of compliance with or satisfaction of any obligation of the Participant to
any holder of any mortgage; or any insurer of a mortgage securing money loaned
to finance the work of"Improvements, or any part thereof. The Certificate of
Completion is not a notice of completion as referred to in 'Section 3093 of the
California Civil Code.
312. Submission of Evidence of Financing Commitments and Loan
Closing. Within the time established therefor in the Schedule of Performance,
• the Participant shall obtain and submit to the Commission evidence that the
Participant has obtained firm and binding commitments for debt and equity
financing necessary to undertake the development of the Project and the design
and construction of the Improvements in accordance with this Agreement. The
debt component of such financing; exclusive of furniture, fixtures and equipment,
debt, shall in no event,exceed TWENTY ONE MILLION DOLLARS ($21,000,000).
The Commission's Executive Director shall approve or disapprove such evidence
of financing commitments within the time established in the Schedule of
Performance. Approval shall not be unreasonably withheld. If the
Commission's Executive,Director shall reasonably disapprove any such evidence
of financing, the Executive Director shall do so by written notice to the
Participant stating the reasons for such disapproval and, 'thereafter; the
Participant shall exercise reasonable diligence in an effort to promptly obtain and
submit to the Commission new evidence of financing. The 'Commission's
Executive Director shall approve or disapprove such new evidence of financing
in the same manner and within the same times established in the Schedule of
Performance attached hereto as Attachment No. 4 for the, approval or
disapproval of the evidence of financing as initially submitted to the
• Commission.
Such evidence of financing shall include a copy of the firm and binding
commitment obtained by the Participant for the mortgage loan or loans to
finance construction through completion of the Project. The term of such
• construction financing shall be for not less than one (1) year., The commitment
for financing shall be in a form sufficient, in the reasonable opinion of the
Commission's Executive Director, to evidence a legally binding, firm and
LOK Hotel OPA-final 17
enforceable loan "commitment subject to the construction lender's reasonable, •
customary and normal conditions and terms.
313. Mortgage,Deed of Trust, Sale and Lease-Back Financing:
313.1 No Encumbrances Except Mortgages, Deeds of, Trust, or
Sale and Lease-Back for Development. Mortgages, deeds of trust and sales and
lease-back are permitted before completion of the construction of the
Improvements, but only for'the purpose of securing loans of funds to be used for
financing the costs of .constructing the Improvements and/or refinancing the
construction loan. The Participant shall not enter into any such conveyance for
financing prior to the Sale:of the Project by the Participant Without the prior
written approval of the Commission.. The:reciuirements of this Section 313.1 shall
terminate effective upon the first, to occur of (i) the Sale•of the Project by the
'Participant, (ii) the Participant's .repaymentr in full, of the, entire outstanding'
principal balance of the Promissory Notes, or (iii) Participant's payment, in full,
of all of the Deferred Participation Payments The Participant,shall notify/the •
Commission in advance of any mortgage or deed of trust, If the Participant
proposes to enter into the same before completion of construction.of all of the
Improvements on the Site The Words "Mortgage" and "deed of trust" as used
hereinafter shall include sale and lease-back.financing. The provisions of this
Section 313.1.shall survive the issuance of a Certificate of Completion.
•
313.2 Holder Not Obligated to Construct Improvements. The •
holder of any mortgage or deed;of trust authorized by this Agreement shall not
be obligated by the provisions of this Agreement to construct or complete the
Improvements or to guaranteersuch construction or completion: Nothing in this
Agreement shall be.deemed to or be,construed to;permit or authorize any such
holder to devote the Site to any uses or to construct any improvements thereon
other than those uses or improvements provided for or authorized by this
Agreerrient.
3133 Notice of Default to Mortgagee or Deed of Trust.Holders;
Right to Cure. With respect to any mortgage'or 'deed of trust granted by
Participant as provided herein, whenever the Commission shall deliver any
notice or demand to Participant with respect to any breach or default by the
Participant hereunder, the Commission shall, at the same time, deliver to each
holder of record,of any mortgage or deed,of trust authorized by this Agreement
a copy of such notice or demand. No notice of default shall be effeetive'ias to the
holder unless such notice'is given. Each.such holder shall (insofar as the rights of
the Commission are concerned) have the right, at its option, within sixty (60)
days after the receipt of the notice, to cure or remedy or commence to cure or
remedyany such default and to-add the cost'thereof to the mortgage debt,and
the lien of its mortgage. In the.event possession of the Site (orportion thereof) is
required to effectuate such cure.or remedy; the holder shall be deemed to have
timely cured or remedied if it commences the,proceedings necessary to obtain
possession thereof within sixty (60) days, diligently pursues such,proceedings to •
completion; and; after obtaining possession, diligently completes such cure or.
LOK Hote1.OPA-final 18
•
•
remedy. Any such holder properly completing the Improvements shall be
entitled, upon compliance with the requirements of .Section,311 of this
Agreement, to a Certificate of Completion.
. 314. Work Force Commitments.
314.1 Local and Union Contractor Requirements. Participant
shall utilize good faith, diligent efforts to ensure that more than fifty percent
. (50%) of the construction work to be performed in connection with the
construction and development of the Improvements is performed by contractors
and subcontractors based within a 70-mile radius of the Site ("Local
Contractors"). In addition, Participant covenants agrees on behalf of itself, its
contractors and subcontractors and its and their successors and assigns to utilize
good faith, diligent efforts to ensure that no less than sixty percent (60%) of the
labor and materials component of Project constriction costs (excluding furniture,
fixtures and equipment and insurance, Project financing and other soft costs) is
manufactured, installed, constructed, provided or performed, as applicable, by
union contractors, subcontractors,-manufacturers or suppliers. As of the Date of
Agreement the parties estimate that the labor and materials component of Project
construction costs will total approximately Eighteen Million. Four Hundred
Seventy Thousand Dollars ($18,470,000). Accurate and complete books and
records evidencing compliance with the foregoing requirements shall be
• compiled and maintained by Participant and shall be made available to Agency
and its designees for inspection during regular business hours at Participant's
address set forth in Section 701, or at another location with.the City of Petaluma.
In addition Participant shall prepare and submit to the Executive Director of the
Commission written certifications in a form reasonably acceptable to the
Executive Director, certifying whether Participant and its contractors and
subcontractors have met the percentage targets set forth in this Section 314.1. A
written certification shall be submitted by Participant to the Executive Director
on the first day of the first calendar quarter following,,,the;Date of Agreement and
on the first day of each calendar quarter thereafter during the construction of the
Project. Participant shall submit a'final written certification to the Executive
Director on the date of issuance of the Certificate.of Completion. As set forth in
Sections 502.1 and;503.2 below, the Commission's obligation to make the Eligible
Construction Cost Loan and Tax Increment Loan disbursements to Participant
shall be conditioned upon (i)Participant and its contractors and subcontractors
meeting or exceeding the percentage hiring targets set forth above and (ii) •
Participant's compliance with the foregoing written certification requirements.
The inability or failure of Participant and its contractors and subcontractors to
meet or exceed the percentage hiring targets set forth above shall not constitute a
default under the terms of this Agreement. The covenants set forth in this
Section 314.1 shall remain-in effect until issuance of the Certificate of Completion.
314.2 Card Check Neutrality. Participant covenants and agrees
• that it shall comply with all of the terms and conditions of that certain
Memorandum of Agreement between Participant and the Hotel Employees and
LOK Hotel OPA-final 19
Restaurant Employees Union dated August, 2000,. as amended; regarding card •
check neutrality.
3143 Living Wage Requirements. Participant covenants and
agrees on behalf of itself, its conntractors, subcontractors and concessionaires and
its and their successors and assigns, that all workers employed at the Project
following the=issuance of the Certificate of Completion; shall be paidban hourly
wage of not less than (i) $10.00 per hour. (including wages, tips and bonuses)
with`benefits or (a) $11.00 per hour, (including wages, tips and bonuses) without
benefits,which wage rate the Commission hereby determines to•be the minimum
"living'wage within the City of Petahima. The requirements of-this Section
shall apply to all workers (hereinafter sometimes referred to as "employees")
performing work for the Participant, the-general contractor or any other
contractor, subcontractor or concessionaire `engaged in the construction,,•
operation or maintenance of the Project, including, without limitation, the
operator(s) of all.restaurants and concessions located within the Project, and'all
shall s o
sr an assigns of the foregoing. Accurate,and complete`payroll records
piled and maintained 'and, with appropriate protections for
employee privacy, shall be made available for inspection by the. Executive
Director of the Commission or.his•or her designee,at all reasonable hours at a
local office of the employer. Participant shall prepare and submit to the
Executive Director of the Commission an annual written certification in ra form
•
reasonably acceptable to the Executive,Director, certifying that Participant and:its
contractors and subcontractors have complied with all of the provisions of this
Section 314.3. The annual written certification shall be.submitted beginning on
• the first anniversary of the issuance of the Certificate of Completion_'and
continuing each year thereafter until expiration of the Redevelopment Plan. In
addition the'Participant shall cause the living wage rate requirements of this
Section:to be incorporated.into each agreement, contract and-subcontract subject
thereto. Nothing 'herein shall be deemed to impose any liability on the
Commission to any employee for, unpaid wages, overtime wages or benefits
required-to be paid-by this Section. The covenants set forth in this`Section 314.3
shall remain in effect until expiratiorrof the Redevelopment Plan:
400. COVENANTS;;RESTRICTIONS ANDAGREEMENTS
401. Agreement to be Recorded Affecting Real. Property. In •
consideration of the Commission Assistance to.be provided.by Commission to
Participant, Participant shall, within fifteen (15) days, after the 'execution of this'
Agreement by the:Commission, cause to be recorded in the Official Records of
Sonoma County, •California, an "Agreement to be Recorded Affecting,Real
Property"in the form of.Attachment No. 8 attached hereto.
•
•
•
LOK Hotel CPA-final .20,
• 500. FINANCIAL;PROVISIONS
•
501. Provision of Commission Assistance. In consideration of the
Participant's obligations hereunder, includinggiwithout limitation, Participant's
obligation to construct the Improvements, to operate and maintain the Project
and to make the Deferred`Participation Payments to the Commission, and subject
to the terms and conditions set forth herein, the Commission shall provide the
Participant with the Commission. Assistance consisting of both the Eligible
. Construction Cost Loan as set forth in Section.502 below, and the Tax Increment
Loan as set forth in Section 503 below.
501.1 Eligible Project Costs. The proceeds of the Eligible
Construction Cost Loan shall be used by participant exclusively to pay or
reimburse Participant for the costs of site improvements and boardwalk
improvements (line items 1. and 3.) as shown on the Eligible Project Casts
Budget attached heretoas.Attachment No. 9. The proceeds of the Tax.Increment
Loan shall be used by Participant exclusively to pay or-reimburse Participant for
the costs of concrete piles and foundation and pre-development costs (line items
2. and 4.) as shown on-the Eligible Project Costs Budget., The costs described in
Attachment No 9 (line-items 1. through 4. inclusive) are referred to collectively
herein as the "Eligible Project Costs".
502. Eligible Construction Cost Loan. Subject to the terms and
S conditions of this Agreement, including, without limitation, Participant's
fulfillment of the Conditions Precedent to Eligible Construction Cost Loan __
Disbursement set forth in Section 502.1 below, the Commission hereby agrees to
loan to Participant an amount equal to SEVEN HUNDRED FIFTY THOUSAND
DOLLARS ($750,000) (the "Eligible Construction Cost Loan"). The Eligible
Construction Cost Loan shall be evidenced by a promissory note (the
"Promissory Note — Eligible Construction Cost Loan") in the form attached
•
hereto as Attachment No. 3A. For the first five (5) years of the Eligible
Construction Cost Loan term, interest shall accrue on the Eligible Construction
Cost Loan from the date of disbursement at the rate of three percent (3%) per
annum, compounded annually. Beginning in the sixth (6') year of the Eligible
Construction Cost Loan term and continuing,until the.Eligible Construction Cost
Loan has been repaid in full, interest shall accrue on the Eligible Construction
Cost-Loan at the rate,of five and eighty-seven one hundreths percent (5.87%) per
annum and shall be payable in arrears,as provided`in Section 502.2, below.
The Promissory Note - Eligible.Construction Cost Loan shall be secured
by a deed of trust, assignment of rents, security agreement and fixture filing
("Deed. of Trust - Eligible Construction Cost Loan") to be recorded upon
disbursement of the Eligible Construction Cost. Loan. The Deed of Trust -
Eligible Construction Cost Loan shall encumber. the Site, shall be subordinate to
all financing approved by the Commission pursuant to Section 312 of this
• Agreement, and shall be reconveyed upon the repayment in hill, or foregiveness,
of the Eligible Construction Cost Loan as provided in Section 502.2 hereof. The
LOK Hotel OPA-final 21
form of the Deed of Trust - Eligible Construction.Cost Loan shall be reasonably
approved by the Commission and the Participant prior to recordation.
The proceeds of the Eligible Construction Cost Loan shall be;;disbursed-by
Commission through a construction loan escrow established by the Commission
and Participant for such purpose. Commission shall authorize the construction
loan,escrow holder to make disbursements of the Eligible Construction Cost
Loan,proceeds to Participant::in accordance with escrow instructions approved
. by the Commission and Participant. Said escrow instructions shall include,
among other things, a requirement that Participant submit invoices and other
evidence reasonably satisfactory to.said construction loan escrow holder that
Participant has incurred costs for site improvements and boardwalk
improvements (line items 1. and .3. as shown on the Eligible- Project Costs
Budget)`.in amount equal to the arnountofthe Participant's draw request.
502.1, Conditions of Eligible Construction Cost Loan
Disbursement The.Commission.shall disburse the Eligible Construction Cost
Loan to the construction escrow holder within.ten (10) days following the
Participant's fulfillment. (or express waiver in writing by the Commission) of
each and fall of the conditions precedent (a) through (f) inclussive, described ,
below ("Conditions Precedent to Eligible Construction Cost Loan
Disbursement"), which Conditions:'Precedent to Eligible Construction Cost Loan
Disbursement are solely for the benefit of the Commission,and which shall be
fulfilled or waived with the time periodsprovidedl for herein:
(a) Promissory Note. and Deed of Trust — Eligible
Construction Cost Loan. Participant shall have executed and delivered the
Promissory Note.-Eligible Construction Cost Loan:to the Commission and.shall
have executed, acknowledged and delivered the Deed of Trust - Eligible
Construction Cost-Loan to-the Commission.
(b) ;Construction Loan Escrow Instructions. Commission
and Participant shall have approved and executed construction loan escrow
instructions.
(c) No Default. Participant is not in default of any of its
obligations under the terms ,of''this. Agreement,',and all representations and
warranties of Participant contained'herein shall be true and correct.
• (d) ,Agreement to tie Recorded Affecting Real Property.
Participant shall have,executed, acknowledged and delivered the Agreement'to
be Recorded Affecting Real Property fo the Commission..
(e) Approval of Evidence of Financing. The Commission
shall have approved Participant's evidence of financing in accordance with
Section 312 of,this Agreement. •
LOK Hotel OPA-final 22
(f) Local and Union Contractor Certification. With
respect to the work completed, at the time of the request for disbursement,
Participant and its contractors and subcontractors'shall have met or exceeded all
of the percentage hiring:targets regarding use of local and union contractors set
forth in Section 314.1 and Participant shall have°submitted written certification of
such compliance to the Executive Director.
502.2 Repayment of Eligible Construction Cost Loan. Participant
. shall repay to Commission the outstanding principal `balance of the Eligible
Construction Cost Loan, together with all accrued interest, in forty (40) equal
quarterly payments commencing on the first day of the'second calendar quarter
of the sixth (6th) Operating Year and continuing on the first day of each calendar
quarter thereafter until the entire outstanding principal amount of the Eligible
Construction Cost Loan, together with all accrued interest, has been repaid in
full. The amount of each such quarterly payment shall be calculated on the basis '
of an equal-payment ten (10).year amortization of principal and interest. If,
following the first day of the .sixth (6th) Operating Year, Participant makes a
Deferred Participation Payment to the Commission as provided in Section 504
below, then the remaining outstanding principal balance of the Eligible
Construction Cost Loan shall be reamortized on the date Participant makes the
Deferred Participation Payment, for the period of time equal to (a) ten (10)-years
minus (b) the period of time commencing on the first day of the sixth (e)
Operating Year and ending on the date Participant makes the Deferred
Participation Payment. As set, forth in the Promissory Note — Eligible
Construction Cost Loan, the entire outstanding principal balance of the Eligible
Construction Cost Loan, together with all accrued interest, shall be immediately
due and payable by Participant to Commission upon any Default by Participant
under the terms of this Agreement and/or the Promissory Note - Eligible
Construction Cost Loan.
503. Tax Increment Loan. Subject to the terms and conditions of this
Agreement, including, without limitation, Participant's fulfillment of the
Conditions Precedent to Tax Increment Loan Disbursement set forth in Section
503.2 below, the Commission shall loan to Participant an amount equal to the
total of all Property Tax Increment Revenues to be disbursed by Commission to
Participant as provided in Section 503.1, below (the "Tax Increment Loan"), but
in no event more. than TWO MILLION DOLLARS. ($2,000,000) (the "Tax
Increment Loan Cap").. The Tax Increment Loan shall be evidenced by a
promissory note (the "Promissory Note — Tax Increment Loan") in the form
attached hereto as Attachment No. 3B. For the first ten (10) years of the Tax
Increment Loan term, interest shall accrue on the Tax Increment Loan from the
date of disbursement at the rate of three.percent (3%) per annum, compounded
annually. Beginning in the eleventh (11t) year of the Tax Increment Loan term
and continuing until the Tax Increment Loan has been repaid in full, interest
shall accrue on the Tax Increment Loan at the rate of five and eighty-seven one
• hundreths percent (5.87%) per annum and shall be payable in arrears as
provided in Section 503.3, below.
LOK Hotel OPA-final 23
The Promissory Note - Tax Increment Loan shall be secured by a deed of
trust,:assignment of rents,:security'agreement.and fixture filing ("Deed of Trust -
Tax .Increment,Loan") to be recorded upon the first disbursement of the Tax
Increment Loan. The Deed of Trust - Tax Increment Loan shall encumber the
Site, shall be subordinate to all financing approved by the Commission pursuant.
to Section 312 of this Agreement, and shall be reconveyed upon the;repayment;in
full, on.foregiveness, of the'Tax Increment Loan as'provided in Section 503.3
hereof. The form of the Deed of Trust - Tax;Increment Loan shall be reasonably
. approved by the Commission and the Participant prior to recordation.
503.1 Disbursementof Tax;Increment Loan. Subject to the terms
and conditions of this Agreement, including, without limitation, the ,Tax
Increment Loan Cap and the Project. Room Revenues Benchmark and Gross
Project Revenues Benchmark discussed below, the Commission shall,disburse
the Tax Increment Loan proceeds to Participant as follows: For each of the first
(1st) through fifth (5th) Operating Years, the Commission shall disburse to
Participant an amount 'of Property Tax Increment.Revenues equal, to sixty-six
and six-tenths percent (66.6%) of the Transient Occupancy Tax Revenues
received by the City, attributable to the Project. Promptly following the
expiration Of the fifth (5th) Operating Year, the Commission shall reassess,the
. Project's need for continued Tax Increment Loan assistance. Provided theTax
Increment Loan Cap has not been reached, and further provided the Project
Room Revenues and Gross Project Revenues Benchmarks set forth below have
not been reached, then for each of the sixth (6th) and seventh.(7th) Operating
Years, the Commission-shall disburse,to:,Participant an amount of Property Tax`
Increment Revenues equal to thirty-three and three-tenths percent (33.3%) of the
Transient Occupancy Tax Revenues received by the City, attributable to the
Project. Commission shall make each Tax Increment.Loan disbursement within
thirty (30)days after City's receipt of the Transient Occupancy TaxReyenues.
Notwithstanding anything to the contrary herein,_. each Tax
Increment Loan installment.shall,be payable exclusively from.available Property
Tax Increment Revenues actually allocated to and received by the Commission
and attributable to the immediately preceding Operating Year and Commission
shall, have no obligation to use any other source of .ironies to fund the Tax
Increment Loan. Participant acknowledges and agrees that Commission has
incurred'.or will incur Indebtedness, that the repayment of the Indebtedness is •
•
secured by Property Tax Increment 'Revenues to be generated from the
Redevelopment Project, and that<Cominission's obligation to make each Tax
Increment Loan disbursement to Participant shall be expressly subordinate to
Commission's obligation to repay all such Indebtedness.. In addition,
Commission's'obligation to loan the Tax Increment.:Loan proceeds to Participant
shall immediately cease upon the first to.occur of the following: (i) disbursement
by Commission to Participant of a cumulative total of Tax Increment Loan.
proceeds equal to the Tax Increment Loan Cap, (ii) Project Room Revenues have
exceeded, SEVEN MILLION FOUR HUNDRED THOUSAND, DOLLARS
($7,400,000) for two (2) consecutive Operating Years (the "Project Room
Revenues Benchmark"), or (iii) Gross Project Revenues have exceeded TWELVE
LOK Hotel OPA-final 24
•
MILLION DOLLARS ($12;000,000) for two (2) consecutive Operating Years (the
"Gross Project Revenues Benchmark").
Notwithstanding any other provision set forth in this Agreement to
the contrary, Commission's pledge of Property Tax Increment Revenues shall be
subordinate to its, obligations to make debt seryice payments on any Tax
Allocation Bonds. Participant acknowledges that the Commission intends to
issue Tax Allocation.Bonds in the estimated principal amount of EIGHTEEN
MILLION DOLLARS t($1'8,000;000) on or before June 30, 2000.. After the issuance
of such bonds, the Commission shall not issue any Tax Allocation Bonds for
which Property Tax IncrementRevenues are to be pledged or utilized in whole
or in part for payment unless it has delivered to Participant at least twenty (20)
days prior to the date it issues such Tax Allecation;Bonds, a written certificate
prepared by a reputable financial advisor. or redevelopment consultant that
demonstrates that the aggregate amount of Property Tax Increment Revenues
that is estimated to be received by the Commission:from the Redevelopment
Project in the next and each succeeding fiscal year based upon the most recent
assessed valuation of taxable property in the :Redevelopment Project as
determined by the County Assessor of the County of Sonoma based upon the
most recently established tax rates will be sufficient to pay one hundred ten
percent (110%) of the annual debt service in the next and.each succeeding fiscal
year,respectively, on all then.existing Indebtedness, and the Tax Allocation Bond
proposed to be issued, plus the`Commission s obligations under this Agreement. •
503.2 Conditions of Tax Increment Loan Disbursement. The
Commission's obligation to make each installment of the Tax Increment Loan,is
conditioned upon the satisfaction or waiver by the Commission of each and all of
the conditions precedent (a) through (m), inclusive, described below (the
"Conditions Precedent to Tax Increment Loan Disbursement'), which are solely
for the benefit of the Commission, and which shall be fulfilled or waived by the
time periods provided for herein:
(a) Completion of Improvements. Participant shall have
satisfactorily completed the construction of the.Improvements, and a Certificate
of Completion shall have been issued by the Commission as provided in
Section 311, hereof.
•
(b) Promissory Note and Deed of'Trust - Tax Incrernenf
Loan. P,articipant,shall.have executed and delivered the Promissory Note - Tax
Increment Loan to.the Commission and shall have executed, acknowledged and
delivered the Deed of Trust= Tax Increment Loan to the Commission.
(c) No Default. Participant is not in default of any of its
obligations under the terms.of this Agreement, and all representations and
warranties of Participantcontained herein shall be true and correct.
• (d) Sheraton Flag at Opening. Participant shall have
initially opened the-Project under a Sheraton hotel flag.
LOK Hotel OPA-final 25
(e) Operation of Project., Participant shall have •
continuously operated the Project as a hotel, which meets the•Hotel Rating
requirements:
(f) Pavment.ofProperty Tazes. act valorem property
taxes'or assessments assessed with respect to the Project shall be delinquent.•
• (g) Sale of.the Project: The Sale of the Project has not yet:
occurred.
(h) Minimum Project Value. Participant shall have,
provided proof reasonably satisfactory to Cornniissioh of its compliance With the
minimum project value covenants 'set forth in the Agreement to be Recorded
Affecting Real Property. •
(i) Financing ;Commitments. Participant:shall have;
obtained, and Commission shall have:approved, Participants debt and equity
commititientsfor the Project as provided'in Section312, above.
(j) Agreement•to be Recorded Affecting.Real Property.
Participant shall have executed, acknowledged and delivered the:Agreement to
be Recorded Affecting,Real Property to theCommission.
(k) Guarantee. The guaran'ty'provided for in'Section 205..
shall have`been...executed and delivered`to'the Commission as provided herein.
(1) • Local and Union:Contractor Certification. Participant
and its contractors and subcontractors shall have met or 'exceeded all Of the
percentagehiring targets regarding::use of local and union contractors'set forth in
Section 314:1 and -Participant shall have submitted written certification of sueh-
compliance to the Executive Director.
(m) Living Wage Certification. Participant shall have
complied with all of the living wage+requirements set forth in Section 314.3 and
shall have submitted written certification:of such compliance to the 'Executive
Director. •
503.3 Repayrnent.of.Tax,Increment Loan. Participant shall repay
to Commission the outstanding pnncipah balance of the Tax Increment Loan;;
together with all accrued interest, in sixty (60) equal quarterly payments
commencing on the first day of the second calendar'quarter.of the eleienth,(11th)
• Operating; Year and continuing on the first ;day of each calendar quarter'
thereafter until the entire outstanding principal amount of the Tax Increment-
'Loan, together with all accrued interest, has.been repaid.in-full. . The amount.of'
each such quarterly payment shall be calculated on the basis of .an equal-
payment'fifteen (15) year amortization of principal and interest. If,.following;the •
first day of the. eleventh (11`s) Operating Year, Participant makes',a‘ Deferred
LOK Hotel 013A-final 26
•
•
Participation Payment to the Commission as provided in Section 504 below, then
•
the reinainfng outstanding principal balance of the Tax Increment Loan shall be
reamortized on the date Participant makes the;Deferred Participation Payment,
for the period of time equal to (a) fifteen (15) years minus (b) the period of time
commencing on the first day of the eleventh (11th) Operating Year and ending on
the-date Participant makes the Deferred Participation Payment. As set forth in
the Promissory Note - Tax Increment Loan, the entire outstanding principal
balance of the Tax Increment'Loan, together with all accrued interest, shall be
immediately due and payable,by Participant to Commission upon a default by
Participant tinder the terms of this Agreement and/or Promissory Note — Tax
Increment Loan.
•
504. Deferred Participation Payments. In consideration of the
provision of the Commission Assistance to Participant, Participant shall pay to
Commission deferred participation payments ("Deferred Participation
Payments") as provided in this Section 504. The amount and timing of the
Deferred Participation Payments shall be as follows:
(a) Upon the Sale of the Project by Participant and/or upon the
occurrence of any Capital Event prior to the Sale of the Project, Participant shall
pay to Commission in cash, an amount equal to the lesser of (i) fifty percent
(50%) of the Managing Members' Net Income from Capital Events, or (ii) the
• entire outstanding principal balance of the Promissory Notes, together with all
accrued interest if such interest is required to be paid pursuant to the terms of
Sections 502 and 503 above (the "Commission Equity Share"). It is understood
that there maybe more than one Capital Event prior to the Sale of the Project and
that the provisions of this Section 504 (a) are intended to apply to each such
Capital Event until the entire outstanding principal balance of the Promissory
Notes; together with all accrued interest if such interest. is required to be paid
pursuant to the terms of Sections 502 and 503 above, has been paid in full. Upon
the occurrence of a Capital Event, the Commission Equity Share shall be
disbursed directly to Commission prior to or simultaneously with the
disbursement of the Managing Members' Net Income from Capital Events.
Upon the Sale of the. Project, the Commission Equity Share shall be paid to
Commission directly from the escrow established for the Sale of the Project.
(b) Participant may prepay-all or any part of the outstanding
principal balance of the Promissory Notes at any time, without penalty. Within
thirty(30) days following such prepayment, in full, Commission shall return the
Promissory Notes to Participant marked "cancelled" and, thereafter, Participant
shall have no obligation to make any Deferred Participation Payments to the
Commission.
(c) The Deferred Participation Payments shall be applied in the
following order:
(i) First, td payment of outstanding interest under the
Promissory Note - Eligible Construction Cost Loan;
LOK Hotel OPA-final - 27
•
(ii) Second, to;payment of outstanding principal amounts
under the .Promissory Note — Eligible Construction
Cost Loan;
(iii) Third, to payment;of :outstanding.interest under the
Promissory Note—Tax Increment Loan;'and
(iv) Fourth, to payment of outstanding principal amounts
under the Promissory Note—Tax•IncremenfLoan.
505. Annual Financial Statements: Prior to the Sale of the Project, the
Participant shall provide to the Commission's, Executive Director, with copies'to
the City Finance Director, written annual statements, sufficient to allow the
Commission's Executive Director to verify the amount of the Managing,
Members' Net Income from Capital Events, Managing Members' Net Income
from Operations,Managing Members''Equity Repayment, Deferred:Participation
Payments and Commission Equity Share. In addition, for as -long as the
• Participant's right to receive installments of the Tax Increment Loan pursuant to
Section 503 of this-,Agreement remains in effect,the Participant shall provide to
the Commission's Executive Director, With copies to the City Finance Director,
such written statement(s) as are reasonably necessary in order to allow the
Commission's Executive Director, or his/her designee, to determine the date
upon which the Commission's obligation to disburse to Participant the Tax •
Increment Loan,proceeds ceases as provided in Section 503:1 above. Prior to the
Sale of the Project, Participant shall provide to Commission a true and correct
copy of any financial statements provided by the Participant to a lender
approved by the Commission pursuant to Section 313.1, hereof. Such annual
written statements shall.be prepared in accordance with generally accepted
accounting principles.
506. -Funding of Non-Profit Corporation. Participant and:Commission
;shall cooperate to',for"m.a non-profit corporation, or other similar entity, which
shall have the authority to oversee and administer the river front enhancement
improvements to be constructed* Participant:. The Board of Directors of the
Commission shall have the right to'approve the initial board of directors of said
non-profit corporation. In consideration,of the.Commission's provision of th'e
Commission Assistance to the Participant, Participant shall pay to the non-profit
corporation, for each of the first(h`) through fifth (5"`) OperatingiYears, the sum
of Twenty:Five Thousand Dollars ($25,000) per Operating-Year. Said.funds;shall
• be paid by the Participant"no later than thirty (30)days following the start Of each
of the first (1') through fifth (5th Operating Years.
LOK Hotel 013A-final. 78.
•
600. DEFAULTS,AND REMEDIES
601. Default Remedies. Sul5jeet to the permitted extensions of time set
forth in Section 702 of this Agreement,:failure by either party to perform any
action or covenant required by this Agreement within the time periods provided
herein following notice and expiration of any applicable cure period, shall
constitutes a "Default" under this Agreement. A party claiming a Default shall
• give written notice of Default to the other party specifying the Default
complained of Except as otherwise expressly provided in this Agreement, the
claimant shall not institute any proceeding against any other party, and the other
party shall not be in Default if,such party within thirty (30) days from receipt of
such notice immediately, with due diligence, commences to cure, correct or
remedy such failure or delay and shall complete such cure, correction or remedy
with diligence.
602. Institution of Legal Actions. Upon the occurrence of a Default, the
non-defaulting party shall have the right, in addition,to any other rights or
remedies, to institute any'action at law or in equity to cure;, correct, prevent or
• remedy any Default,. or to recover damages for any default, or to obtain any
other remedy consistent with the purpose of this Agreement. Such legal actions
must be instituted in the Superior Court of. the County of Sonoma, State of
California, in an appropriate municipal court in that County or in the Federal
District Court for the. Northern District of the State of California.
Notwithstanding anything. herein to the contrary, the Participant's right to
recover damages in the event of a Default by the Commission shall be limited to
recovery of actual damages and shall exclude consequential damages.
603. Termination by the Participant. In the event of any Default of the
Commission, which is not cured within the time set forth in Section 601 hereof
after written demand by the Participant, then this Agreement may, at the option
of the Participant, be terminated by Notice thereof to the Commission. In .
addition, in the event any person or entity contends that the Project is a "public
work" within the meaning of Labor Code Section 1720 et. seq., or that Participant
is subject to the "prevailing wage" statutes and regulations of the State of
California, Participant shall have the right, exercisable in its sole discretion, to
terminate this Agreement by Notice thereof to the Commission; provided,
however, at the time of delivery of such Notice,.Participant shall pay to Agency
the entire outstanding principal balance of the Promissory Notes, together with
all accrued interest. From the date of the Notice of termination of this
Agreement by the Participant to the Commission and thereafter this Agreement
shal be deemed terminated and there shall be no further rights or obligations
between;the parties.
•
604. Termination by the Commission. In the event that the Participant
is in Default of this Agreement and fails to cure such default within the time set
• ford-tin Section 601 hereof, then.this Agreement and any rightsofthe Participant
or any assignee or transferee with respect to or arising out of the Agreement or
the Site, shall, at the option of the Commission, be terminated by the
LOK Hotel OPA-final 29
Commission by written notice thereof to.,the P,articiparit. Erom.the.date of the
Notice of termination of-this'Agreement_by the Commission to the Participant
and thereafter the Commission shall have no obligation to make any further
disburserrients of the Commission,.Assistance, and the entire: outstanding
principal balance of the Promissory'Notes, together with all accrued interest,
shall be immediately due and payable to Corninission.
605. .Acceptance of Service of Process. In the event that any legal action
is commenced by the Participant against the Commission, service'of-process on
theCommission shall be made by personal service upon the.Executive Director
of the Commission or in such othermanner as may be provided by law. In the.
event that any legal action is _commenced by the Commission against the
Participant, service of process. on the Participant shall be made by personal
service upon Dennis A. MacDonneil or in such other manner as maybe provided
bylaw.
,606. Rights and Remedies Are Cumulative. Except as otherwise
expressly stated in this Agreement, the rights and remedies of the,parties are
cumulative, and the exercise by either party of one or more of such rights or
remedies shall not preclude the'.exercise by it, at,the same or different tithes, of
any other rights or remedies for the same default or any other default by the •
other party.
607. Inaction Not a Waiver of Default. Any failures ordelays by either
party in asserting any of its rights and remedies as to any Default shall not
operate as a waiver of any Default or of any such rights or remedies ;or deprive
either such party of its right to institute and maintain any actions or proceedings
which it may deem necessary to protect, assert or enforce any such rights or
remedies.
608. Applicable Law. The laws of the State of California shall govern
the interpretation and enforcernent of-this Agreement.
700. GENERAL`PROVISIONS
701. Notices, Demands..and Communications Between the Parties.
Any approval, disapproval, demand,,documeht or other notice ("Notice") which
either party may desire to give to the other,party under this,Agreement must-be
in writing and may be o ven,byany commercially acceptable//leans to the party
to whom the Notice is directed at theaddress of the party asset forth below,or at
any-other address as that party may''later designate by Notice.
•
S
•
LOK Hotel OPA-final 30' .
1 _
• To Commission: Community Development1Commissibn
• of the City of°Petaluma
11 English Street
Petaluma, California 94953
Attention: Executive Director
•
• With copies to: City of Petaluma
11 English Street
Petaluma, California 94953
Attention: Finance Director
and: McDonough,Holland St Allen
555 Capitol Mall, Suite 950
Sacramento, CA 95814
Attention: T. Brent Hawkins
• To Participant: Lok Marina Hotel Company
5050 Petaluma Hill-Road
_
Santa Rosa, CA 95404
Attention: Dennis A. MacDonneil
With a copy to: Donald J. Black
Law Offices of Donald J. Black
2213 Mendocino Avenue
Santa Rosa, California 95403
Any written notice, demand or communication shall be deemed received .
immediately if delivered by hand and shall be deemed received on the third day
from the date it is postmarked if delivered by first-class mail, postage prepaid.
702. Enforced Delay; Extension of Times of Performance. In addition
to specific provisions of this Agreement, performance by-either party hereunder
shall not be deemed to he in Default, and all performance and other dates
specified in this Agreement shall be extended, where delays or Defaults are due
to: war; insurrection;strikes; lockouts; riots; floods; earthquakes; fires; casualties;
acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight
embargoes; lack of transportation; governmental restrictions or priority;
litigation; unusually severe weather; inability to secure necessary labor, materials
or tools; delays of any contractor, subcontractor or supplier; acts or omissions of
the other party; acts or failures to act of the City or any other public or
LOK Hotel OPA-final 31
•
governmental commission or entity (other than the acts or failures to act of the 1110
Commission which shall not excuse performance by the Commission); 'or any
other 'causes beyond the control or without the fault of the party claiming an
extension of time to perform. Notwithstanding anything to the contrary in this
Agreement, an.extension of time for any such cause shall be for the period of the
enforced delay and,shall commence to run from1the time of the commencement
of the cause, if Notice by the party claiming,such extension is sent to the other
party within thirty (30) days of the commencement of the cause: Times of
performance under this Agreement may also be extended, in writing by the
mutual agreement of Commission and Participant: Notwithstanding any
provision of this Agreement to the contrary, the,Participant's'inability to obtain
financing or other•lack of funding to complete the work of Improvements shall
not constitutfe,grounds of enforced delay pursuant to this Section 702.
703. , Successors. and Assigns. Subject to the prohibitions against
changes in the ownership, management and.control of Participant set forth,in
Section 203 above, all of the terms, covenants,and conditions of this
shall be binding upon the Participant and its permitted successors and assigns:
Whenever the term. "Participant" is used in this Agreement, such term shall
include any other permitted successors and assigns as herein provided.
• 704. Memorandum of Agreement. Within fifteen (15) calendar days
after receipt of a fully executed original of-this Agreement, Participant shall cause
to be recorded in the Official .Records of Sonoma County, 'California, a •
"Memorandum of Agreement"in the form of Attachment No. 7 hereof.
705. Relationship,Between;Commission and Participant. I,t is hereby
acknowledged that,the relationship between the Commission and the Participant
is not that of a,partnership or joint venture and that the Commission and.the
Participant shall not be deemed or construed for any purpose to be°the agent of
the other. Accordingly, except as expressly provided herein :or in the
Attachments hereto, the Commission shall have no rights, powers, duties or
obligations with respect to the development, operation, maintenance or
management of the Site or the.Project: The Participant agrees to indemnify,mhold
harmless and defend the Commission from any claim made, against the
Commission arising from a claimed relationship of partnership or joint°venture
between the Commission and the•Participant with respect to the development,
operation, maintenance or management of the'Site.or the Project.
706. Commission Approvals arid.Actions. Whenever a reference is
made•herein to an,action or'approval to be undertaken by the Commission, the
Executive Director of the Commission or his or her designee is authorized to act
on behalf of the Commission unless specifically provided otherwise or the
context should require otherwise. Notwithstanding the foregoing, any
modification of the terms and conditions of this Agreement, which 'would
materially and adversely affect the rights and obligations :of• the Commission,
shall require the approval of five sevenths (5/7) of the Board of Directors of the
Commission..
LOK Hotel OPA-final 32
•
•
0
707.. Counterparts. This Agreement, may' be .signed in multiple
counterparts which, when signed by all patties, shall constitute a binding
agreement: This Agreement is executed in four. (4). originals, each of which is
deemed to be an original:
708. Integration. This Agreement contains the entire understanding
• between the parties relating to the transaction contemplated by this Agreement.
All prior or contemporaneous agreements, understandings/representations and
statements, oral or written, are merged in this Agreement and shall be of no
further force or effect. Each party is entering this Agreement based solely upon
the representations set forth herein and upon each party's own independent
investigation of any and all facts such party deems material. This Agreement
includes thirty-two (34) ,pages and Attachment Nos. 1 through 10, which
constitute the entire understanding and agreement of the parties,
notwithstanding any previous negotiations or agreements:between the parties or
their predecessors in interest with respect to all or any part of the subject matter
hereof.
709. Intentionally Omitted.
710. Titles and Captions. Titles and captions are.for convenience of
reference only and do not define, describe or limit the scope or the intent of this
• Agreement or of any of its terms.. Reference to section numbers are to sections in
this Agreement, unless expressly stated otherwise.
711. Interpretation. As used in this Agreement, masculine, feminine or
neuter gender and the singular or plural number.shall each be deemed to include
the others where and when the context so dictates. The word "including" shall
be construed as if followed by the words "without,limitation." This Agreement
shall be interpreted as though prepared jointly by both parties.
712. No Waiver. A waiver by either party of a breach of any of the
covenants, conditions or agreements under this Agreement to be performed by
the other party shall not 'Construed as a waiver of any succeeding breach of the
same or other covenants, agreements, restrictions or conditions of this
Agreement.
713. Modifications. Any alteration, change or modification of or to this
Agreement, in order to become effective, shall be made in writing and in each
instance signed on behalf of each party.
714. Severability. If any term, provision,.condition or covenant of this
Agreement or its application to any party or circumstances shall be held, to any .
extent, invalid or unenforceable, the remainder of this Agreement, or the
application of the term, provision, condition or covenant to persons or
circumstances other than those as to whom or which it is held invalid or
•
LOK Hotel OPA-final 33
unenforceable, shall not be affected, and shall be valid and enforceable to the
fullest extent permitted bylaw. .
715. Computation of Time: The tune in which any act is to be done
Under this Agreement is-computed by excluding the first,•day (suchas the day
escrow opens), and including the last day,. unless the last day rs a holiday or
Saturday or Sunday, and then sthat,day is also excluded. The term "holiday"
shall mean all holidays as specified in Section 6700 and 6701 of the ,California
Government Code: If any actis-to be done by aparticular time during a day,that
time shall,be,Pacific°Time Zone time. -
716. Legal Advice. Each party represents,and•warrants to the other the
following: they have carefully=read this -Agreement, and in signing this
Agreement,:they do so with-full knowledge>of any right which they may have;
they have received independent legal advice from their respective legal counsel
as to the matters set forth in this Agreement, or have knowingly chosen not to
consultlegal counsel as to the matters set forth.in.this Agreement;-ands they have
freely signed this Agreement without any reliance upon any agreement, promise,.
statement or representation by or on behalf of the other party, or their respective
agents, employees, or attorneys, except as specifically set forth in this
Agreement, and without duress or coercion, whether economic or otherwise,
•
717. Time of Essence. Time is expressly made of the essence with
respect to the performance by the Commission and the Participant:of each and
every obligation and condition,of this Agreement:
718: Cooperation. Each party agrees to cooperate with the other in this
transaction and, in that,regard, shall execute any and all documents which may
be reasonably necessary, helpful, or appropriate to carry out the purposes and
intent of this Agreement including, but:not limited to, releases or :additional
agreements. .
719. Conflicts of Interest. No member,, official or employee of the
Commission shall have any personal interest; direct or indirect, in this,
Agreement, nor4shall any such member, official,or•employee participate in any
decision relating to the Agreement which affects his personal interests or the
interests.of anyyeorporation, partnership or association in which he is directly or
indirectly interested.
720. Time for Acceptance of ,Agreement by Commission. 'This
Agreement, when executed by the.Participant and,;delivered.to the Commission,
must,be authorized, executed and delivered by the Commission on or before
forty-five (45) days after signing and delivery of this Agreement by the
.Participant or this Agreement .shall be void, except to the extent that the
Participant shall consent an writing to a further extension of time for the
authorization;:execution,and delivery of'this Agreement.
LOK Hotel OPA-final 34
721. Participant's Indemnity. The Participant shall defend, indemnify,
assume all responsibility for, and hold the Commission and the City, and its and
their officers,, employees and agents, harmless from, all claims, demands,
damages, defense costs or liability of any kind or nature relating to the subject
matter of this Agreement or the implementation hereof and for any damages to
property or injuries to persons,'including accidental,death (including attorneys'
-fees and costs), which may be caused by any of the Participant's activities under
this Agreement, whether such activities or performance thereof be by the
Participant or by anyone.directly or indirectly employed or contracted with by
the Participant and whether,such damage shall accrue or be discovered before or
after termination of this Agreement. The Participant shall not be liable for, and
shall not be required to indemnify the Commission or City for, property damage
or bodily injury occasioned bythe sole negligence ofthe Commission or the City,
or its or their designated:agents'or employees.
722. Date of Agreement. The date of this Agreement ("Date of
Agreement") shall be the date when it shall have been signed by the
Commission.
723. Nonliability of Officials and Employees.of the Commission and
the Participant. No member, official or employee of the Commission or the City
shall be personally liable to the Participant, or any successor in interest, in the
• event of any Default or breach by the Commission (or the City) or for any
amount which may become due to the Participant or its successors, or on any
obligations under the terms of this Agreement. Participant hereby.waives and -
releases any claim it may have against the members, officials or employees of the
Commission and the City with respect to any Default or breach by the
Commission (or the City) or for any amount which may become due to the
Participant or its successors, or on any obligations under the terms of this
Agreement.
724. Assignment by Commission. The Commission may assign or
transfer any of its rights or obligations under this Agreement with the approval
of the Participants which approval shall not be unreasonably withheld; provided,
however, that the Commission may assign or transfer any of its interests
hereunder to the City or any public or private entity controlled by the City at any
time without the consent of the Participant.
[Remainder of Page Intentionally Left Blank.]
•
LOK Hotel OPA-final 35
IN WITNESS WHEREOF, the Commission and the Participant have •
executed this Agreement on the respective dates set forth below.
,2001 :COMMUNITY DEVELOPMENT COMMISSION
OF,THE. CITY OF PETALUMA, a public body,
corporate:and politic
By:
Chairman
ATTEST:
Secretary
"COMMISSION"
APPROVED-AS'TO FORM:
By:.
Commission Counsel •
•
, 2001 LOK PETALUMA MARINA HOTEL '
COMPANY. ,LLC.,a California limited liability
company
By: •
Kirkman L. Lok
President
By:
Dennis A. MacDonneil',
Secretary
"PARTICIPANT"
APPROVED AS TO FORM:
By:.
Participant Counsel
•
•
i
LOK Hotel'OPA-final 36
ATTACHMENT NO. 1.
LOCATION NEAP
crl F= I
E Ti
p
All
VP7
\ 1- ,,
Hotel Site
.••
/" At.,,
\- r�FJF�F9rr
7. .F. /
• S HERATON HOTEL AT THE PETALUMA NLNA
745 BAYWOOD DRIVE
MB 092496 APN 005-060-056 `
ATTACHMENT NO. 2
SITE:LEGAL DESCRIPTION
•
All.thatreal property situated in the;City:of Petaluma, County of Sonoma„State
of California, and:being a portion of"the lands of Kirkman Les Lok, et al. as
described-by Deed recorded as Document NUMber 97-041197,Official Records of
Sonoma County, described as follows: .
PARCEL ONE:
Beginning at a point on thesouthwesterlyline,of Lot 4 as shown.on tat
map entitled "Petaluma Marina Parcel Map'No.,247" filed in;Book 454 of
. Maps at pages 9 and 10, Sonorna)County Records, from which the most
•westerly corner of said Lot 4 bears North 41°04'00” West 5.00 feet; thence
leavmg.,said line, parallel to 4and 5.00 feet distant from the Easterly line.-of'
Lot 3 as shown on said Parcel Map.No.,247, North 48°56'00" East
132.11..feet :thence North 03956'00" East 148:68 feet to.apointon the .
Southwesterly line.of a 30 foot non-exclusive,common dnveway,easement
as shown on said Parcel Map No 247, thence along said Southwesterly'
line, also being the Northeasterly line:of said,Lot 4, South 86°04'00 1"East
32.24 feet;'thence continuing South 86°04'00" East, 2.23 feet, thence
Southeasterly along-a tangentcurve concave to the right, with a-radius of
35.'00,feet,.through a.central angle of 38°35'40", for an arc length of
23':58 feet, thence South 47°28'20" East,76.21 feet; thence Southeasterly
along,a°tangent curve concave to the right, with a radius of 55.00 feet,
,through a central angle of 06°24'20",for"an arc length of 6.15 feet; thence
• South 41°04'00" East, 3.38 feet, thence North 48°56'00" East, 7:72 feet;
thence South 41°04'00 East, 72'.00 feet;;thence South 48°56'00" West,
7:72 feet;,thence.South 41°04'00' East/11.47 feet, thence Southerly along a
tangent curve concave to the.right, with,a radius:of 52:00 feet, through a
central angle of 28°24'14", for an arc.length Of 25.78 feet; thence South
12°39'46"East, 14.07feet, thence Southerly along-a tangent curve concave
to the,right, with a radius of-35:00 feet, through a central angle of
16°35'46", for an arc-length of 10.14 feet; thence South,03°56'00 West,
2:07 feet,to a pointon.the Northeasterly line of•said.Lot'4 (454,M 9); thence
continuing South 03°5&00" West 32.94feepthence South 41°'04' 00' East
163.27 feet, thence South 10°09'03" West 63.45 feet; thence South 03 056'00"
West 103.91' feet to the Southerly line-of said Lot 4; thence along„said line
North 86°04'00” West 76:70'feet,;thence, North 03°56'00" East 72.93 feet;
thence North 41°04;00 West146.00 feet,thence North 86°0400" West
28.50.feet;thence South 48956'00' West 91.00 feet; thence North 41°04'00"
-West 18330 feet to the point of Beginning,
,
Attachment No. 2
• PARCEL TWO:
A REVISED ALIGNMENT 30-foot Non-Exclusive Common Driveway as
described in the:second modification of Declaration of Easements,
Covenants and Restrictions and Reciprocal Easements recorded July 21,
2000, as Document Number:2000-072696;more.particularly described as
follows:
AN EASEMENT over a portion of Lot 5, Petaluma Marina, said Lot being
delineated on the Parcel Map recorded in Book 454 of Maps at Pages 9
and 10, Sonoma County Records, said portion being more particularly
described as follows:
A STRIP OF LAND 30 feet in width, the center line of which is described
as follows:
BEGINNING at°a point on the Northerly line of Lot 6, said point being
South 76°59'12" East, 7:45 feet from a point designated as Point "C", being
the centerline of an existing 30'Non-Exclusive Common Driveway
Easement, all as delineated on,said map (454 M 9);and running thence
along said centerline,,South 05°10'14" East, 53.62 feet; thence continuing
on said centerline, Southeasterly, along a tangent curve concave to the-left
with a radius of 100.00 feet, through a central,angle of 35°53'46", for an arc
length.of 62.65 feet; thence continuing on said centerline,Easterly, along a
tangent curve concave to the left with a radius of 50.00 feet, through,a --
central angle of.45°00'00', for an arc length of 39:27 feet thence continuing
on said centerline,South 86°04'00" East, 2.23-feet;r thence Southeasterly,
along a tangent curve concave to the right with a radius of 50.00 feet,
through a central angle of 38°35'40", for an arc length of 33.68 feet; thence
South 47°28'20" East, 76.21_feet; thence Southeasterly, along a tangent
curve to the right with a radius of 70.00 feet, through a central angle of
06'24'20", for an arc length of 7:83 feet; thence South 41°04'00" East,
86.84 feet; thence Southerly, along a tangent curve concave to the right
with a radius of 67.00 feet, through a central angle,-of 28°24'14", for an arc
length of 33.21 feet; thence South 12°39'46" East, 14.08 feet; thence
Southerly,along a;tangentcurve concave to the.right,with a radius of
50.00 fee, through a central angle of 16°35'46", for an arc length of
14.48 feet; thence South 03`56'00"West, 2:06 feet to the true point of
ending of the centerline of this description, said:point being a point on the
centerline of the previously mentioned existing 30' Non-Exclusive,
Common Driveway Easement (454 M 9), said point bearing North
03'56'00" East, 26:72 feet from the monument at the Southerly end of -
course.L12, as delineated on said map (454 M 9).
EXCEPTING THEREFROM that portion lying within Parcel One, above.
•
Attachment No. 2
2
PARCEL THREE:
•
AN EASEMENT_for street or highway purposes, more particularly
described as follows:
A,STRIP OF LAND, 80 feet wide, situated in°the City of Petalcima, County
of Sonoma, State of California, lying equally 40 feet on each side of the
'following described line: •
COMMENCING at the Southeasterly corner of-that certain parcel ofland
described in Deed.dated May•16, 1984, from Public Storage Properties X,
Ltd'. to City of Petaluma.;.recorded.July 3, 1984, under Document'NO. 84-
045209,.Sonoma County Records,said corner being the•Northerly line of
land, 60 feet wide,of Northwestern.Pacific,Railroad Company;thence'
North 77°01'51" West, along said Northerly line, being parallel with and
distant 30 feet Northerly, measured at right angles from the original
located centerline of Northwestern Pacific,Railroad Company's main tract
(formerly Donahue Branch;;retired),'26.33 feet to the true point of
beginning of the line herein to be described; thence South-05°18:25"East,
63:19 feet to the Southerly line of said Company's.land.
The side lines of the herein above described.80-foot wide{strip of'.land
terminate in said:Northerly and Southerly lines.
•
PARCEL FOUR: •
AN EASEMENT for street or highway purposes, more particularly
described as follows:. •
• BEING A PORTION of the lands of:Northwestern Pacific Railroad
Company, as_described.by Deed recorded:MLBook 345 of Deeds, Page 266,
Sonoma County Records,'and being:more particularly'described`as
follows:
BEGINNING at Point C""as shown on that Record of Survey,filed in
Book185 of Maps,Page 15, in the Office of the Sonoma County Recorder;
thence along the Southeasterly line of the said lands of Northwestern
Pacific Railroad Company, along a curve to the left from.a tangent which
bears North 76°59'12" West•,through,a central angle of 03°02'36", havinga
radius of 352.20 feet and length of 18,71 feet;thence leaving said
Southeasterly4line,North 05 940'14' West, 0.52 feet, thence 76°59'12" East,
1886''feet.to'the'point of beginning:
PARCEL FIVE:
AN EXIT EASEMENT overa'portion of Lot 3 and Lott, Petaluma Marina,
said Lots being delineated on;_the Parcel Map recorded in Book,454of •
Mapsat Pages-9 and 10, Sonoma County Records; conveyed by document.
Attachment No. 2
3
•
•
• recorded June 19, 2000 ;as Document Number 20007060401, Sonoma
County Records;-said portion being more particularly described as
follows:
BEGINNING at the Northwesterly corner of said Lot 4 (454 M 9) and
proceeding along the Northerly line of Lot 4(454 M 9), South 86°04'00" •
East, 5.00 feet;thence South 03°56'00" West, 148.67 feet; thence South
48°56'00" West, 77.27 feet; thence North 41°04'00" West, 10.00 feet; thence
. . North 48°56100"'East,-73.12 feet; thence North 03°56'00" East, 147.74 feet;
thence South 41°04'00" East,4.53 feet; thence South 86°04'00" East,
1.80 feet to the point of beginning.
PARCEL SIX:
A PRIVATE UTILITY`EASEMENT over all that real property situated in
the City of Petaluma,,.County of Sonoma, State of California, and being a
portion of Lot 5, as shown and.designated upon that'certain map entitled .
Petaluma.Marina Parcel Map No. 247, filed in the Office of the County
Recorder on February 27, 1990, in book 454 of Maps, Pages 9 and 10;
Sonoma County Records, as conveyed by document recorded July 21,
2000, as Document Number 2000-072695, Sonoma County Records,
described as follows:
• BEGINNLNG at the most Northeasterly corner of.Lot 4 as shown on that
map entitled "Petaluma Marina Parcel Map No..247",filed in Book 454 of
Maps at Pages•9 and 10, Sonoma County Records; thence along the
Northeasterly line of Lot 4 (454 M 9), North 41 004'00" West, 154.79 feet to
the true point of beginning;thence leaving said Northeasterly line, South
86°04'13" East, 69.05 feet; thence South 41 004'09 East, 40.96 feet; thence
North 48°53'31 East,.6.67 feet; thence North 10°17'21`"East, 41.60 feet;
thence North 41°04'00" West, 24.68 feet, thence South 48°25'28" West,
34.43 feet; thence North 86°04'13" West, 71.74,feet to a point on the
• Northeasterly line of Lot 4 (454'M 9); thence along said Easterly line, South
03°56'00" West;4:01 feet; thence South 41°04'00" East, 8.47 feet to the true
point of beginning.
A. P. Nos. 005-060-083`and 005-060-069 (portion)
•
•
•
Attachment No. 2
4
ATTACHMENT NO. 3A
PROMISSORY NOTE-ELIGIBLECONSTRUCTION COST LOAN
$750,000 ,;2001
Petaluma,California
FOR VALUE RECEIVED, LOK. PETALUMA MARINA HOTEL
COMPANY, LLC, a California limited liability company (the "Maker"), prorriises
to pay to the,COMMUNITY DEVELOPMENT COMMISSION OF THE'CITY OF
PETALUMA',.a public body, corporate and politic, organized and existing under
the laws!of-the State of California (the "Holder"), or order, at 11 English Street,
Petaluma, California or at such;other place as Holder may direct, from time to•
time in writing, the principal sum of SEVEN HUNDRED FIFTY THOUSAND
DOLLARS ($750,000) or so much thereof which has been disbursed, by the
Holder to the ,Maker pursuant to Section 502 of the Owner Participation
Agreement, as hereinafter described (the "Eligible Construction Cost Loan"),
•
together with interest and other charges as set forth hereinbelow. All sums
payable hereunder shall be payable in lawful-money of the United States of
America.
1. Owner Participation Agreement — This promissory note
("Promissory Note") is made and delivered pursuant to and in implementation
of that certain Owner Participation Agreement dated , 2001, by and
between, the Holder and the Maker. (the "Agreement"). The terms 'and
conditions of such Agreement, which, among other:things, allow for acceleration•
of this Promissory Note upon the!occurrence of certain events of default, are
hereby incorporated by reference. Capitalized terms not defined herein are as
•defined. in Section 100 of the Agreement. In 'the event there is any conflict
between the terms of this Promissory Note and the terms of the Agreement, the
terms of the Agreement•shall govern.
2. Interest Rate, Payments —For the first five (5) years of the Eligible
Construction Cost Loan term, this Promissory Note shall bear interest from the
date of disbursement at,the rate of three.percent (3%) per annum, compounded
annually: Beginning in the sixth (6th) year of the Eligible Construction Cost Loan
term and continuing until the.Eligible Construction Cost Loan hasabeen repaid in
full, this Promissory Note shall bear interest at the rate of five and eighty-seven •
one.hundreths percent.(5.87%) per annum, which shall be payable in arrears as
provided below: Maker shall repay to Holder the outstanding principal balance
of the'Eligible Construction Cost Loan, together with all accrued interest, in forty
(40) equal quarterly payments corhmencing on the' first day of the second
Attachment No. 3A.
•
•
41 calendar quarter of the sixth (6th) Operating Year and continuing on the first day
of.each calendar quarter thereafter until the entire:outstanding principal amount
of the Eligible.Construction Cost Loan, together with all accrued interest, has
been repaid in full. The amount of each such quarterly payment shall be
calculated on the basis of an equal-payment ten (10). year amortization of
principal and interest. If, following the first day of the sixth (6th) Operating Year,
Maker makes a Deferred Participation Payment td the Holder as provided in.
Section 3 below, then the remaining outstanding principal balance of the Eligible
• Construction Cost Loan shall reamortized on the date Maker makes the
Deferred Participation Payment, for the period of?time equal.to (a) ten (10) years
minus (b) the period of time commencing on the first day of the sixth (6th)
Operating Year and ending on.the'date Maker makes the_Deferred Participation
Payment. Notwithstanding any other provision hereof to the contrary, the entire
outstanding principal balance Of the Eligible Construction.Cost Loan„ together
with all accrued interest, shall be immediately due and payable by Maker to
Holder upon a default by Maker under the terms of this Promissory Note and/or
the Agreement.
3. Deferred Participation Payments -In consideration of the Holder's
provision of the Comrriission-Assistance to the Maker, Maker shall pay to Holder
deferred participation. 'payments ("Deferred Participation Payments") as
provided in this Section 3: The amount and timing of the Deferred Participation
Payments shall be as follows: Upon the Sale of the Project by Maker and/or
1 upon the occurrence of any Capital Event prior to the Sale of the Project, Maker
shall pay to Holder in cash, an,amount equal to the lesser of (i)'fifty percent
(50%) of the Managing Member's Net Income from- Capital Events, or (ii) the
entire outstanding principal balance of the Promissory Notes, including this
Promissory Note and the Promissory Note -- Tax Increment Loan, together with
all accrued interest if such.interest:is required to be paid pursuant to the terms of
Sections 502 and 503 of the Agreement (the "Commi'ssion Equity Share"). It is
understood that there may be more than one Capifal.Event prior to the Sale of
the Project and that the provisions of this Section 3 are intended to apply to each.
such Capital. Event until the entire outstanding principal balance of this
Promissory Note, together with all accrued iriterest if.such interest is required to
be paid pursuant to the terms of,Sections 502 and 503 of the Agreement;has been
paid in full. Upon the occurrence of a Capital/Event, the Commission Equity
Share shall be;disbursed directly to Holder prior to orsimultaneously with the
disbursement of the Managing Member's Net Income from Capital 'Events.
Upon. the Sale of the Project, the Commission Equity Share shall be paid. to
Holder directly-from-the escrow established for the Sale of the Project.
4. Prepayment - Maker may prepay all or any part of the
outstanding principal balance of, this Promissory Note at any time, without
penalty. Within thirty'(30) days following such prepayment, in full, Holder shall
return this Promissory Note to Maker marked "cancelled.:'
Attachment No. 3A
2
5. Deed`of'Tiust -This Promissory Note is secured by,a,deed of trust •`
dated concurrently herewith, encumbering the Site Maker shall=record the deed
of trust concurrently with the execution of this•PromissoryNote.
6. Default - Maker will be in default under this Promissory Note
upon the occurrence of any one or more of the following events (each,an "Event
of Default"): • •
(i) Maker fails to make any payment of principal under'this
Promissory Note within three (3) days after the date when
due; or
(ii) Maker.fails to. comply with any provision contained fn this
Promissory Note or the Agreement, and does not cure that
failure within Thirty (30) days after written.notice from
Holder;.or
• (iii)• Maker becomes insolvent or the subject of any bankruptcy or
other voluntary or involuntary proceeding,. in or out of ,
court,for the:adjustment of debtor-creditor relationships; or
(iv) Maker dissolves Or'liquidates; or
(v) Any representation or warranty made or givenby Maker:in •
the Agreement proves to be false or misleading in any
material respect; or
• (vi) An event of defaultnnder,the Agreement occurs.;
If an Event of Default occurs, the Holder may exercise any right:or
remedy which it has under this,Promissory Note or the Agreement), or which,-is
otherwise'available at law or-in equity or by statute, and all of Holder-'s rights
and remedies,shall be cumulative Upon the occurrence of any Event of Default,
Holder's obligation to lend under the Agreement shall automaticallyterminate.
Upon the occurrence of,anyEvent of•Default, all of Maker's obligations under
this Promissory Note and. the Agreement may become immediately due and
payable without notice of default, presentment or demand for payment,;protest
or notice,of nonpayment or dishonor,,or othernotices or demandsof any kind or
character, all at Holder's option, exercisable in its sole ;discretion.; Holder's
failure to exercise such option shall,not constitute.a waiver of such option with
respect to any subsequent event. Holder's failure. in the exercise of any other,
right or remedy hereunder^or` under any agreement or other instrument which
• secures the indebtedness.or is related,thereto shall;not affect-any rightor-remedy
and no single or partial exercise,of,,;any suchright or remedy shall preclude any
further exercise thereof.
.7. Waivers Maker.;expressly waives: (a) any defense based upon
any regal disability or other defense of Maker, or other person, or by reason of
•
Attachment Nd:3A
• the.cessati'on<onlimitation:of the liability of Maker from any cause other than full
payment and performance of those obligations of Maker which are provided for
hereunder; (by`any defense based upon any lack of authority of the members,
officers, directors, partners or agents acting or purporting to act on behalf of
Maker or any member of Maker or any defect in the formation of Maker or any
member of Maker; (c) any defense based upon the application by Maker of the
proceeds of this Promissory Note for purposes other than the purposes
represented by Maker to Holder or intended or understood by Holder or Maker;
(d) any defense based upon Holder's`election,in any proceeding instituted under
the Federal Bankruptcy Code; of the application of Section 1111(b)(2) of the
Federal Bankruptcy Code or any successor statute; (e) any defense based upon
any borrowing or any grant of a security interest.under Section 364 of the Federal
Bankruptcy Code; (f) any right of,subrogation, any right to enforce any remedy
which Holder may have against Makerand any'right to participate in, or benefit
from, any security for this Promissory Note or the other documents now or
hereafter held by Holder;; and (g) presentment, demand, protest and all notices
other than any notice expressly provided for in this Promissory Note and/or the
Agreement.
8. Costs - Upon the, occurrence of an Event of Default, Maker
promises to pay all costs, expenses and attorneys' fees incurred by the Holder in
connection with the collection..dr. enforcement of this Promissory Note or any
part of it, whether or not suit is filed, including but not limited to, all costs,
expenses and attorneys' fees incurred by the Holder in connection with any
insolvency, bankruptcy, reorganization, arrangement or similar proceedings
involving Maker. As used herein, the term "attorneys' fees" means the full costs
of legal services performed in connection with the matters involved, calculated
on the basis of usual fees charged by an attorney performing those services, and
not limited to "reasonable attorneys' fees" as defined by any statute or rule of
any court in which an action hereunder may be brought.
9. Amendments.and Modifications -This Promissory Note may not
be changed orally,and may be amended only by an agreement in writing, signed
by the party against whom enforcement of any'waiver, change, modification or
dispute is sought.
•
10. Governing Law— This Promissory Note shall be construed and
enforced in accordance with the laws of'the State of California.
11. Successors -The terms "Maker" and "Holder" shall be construed
to include the parties'respective successors and assigns.
12. Severability -If any provision of'this-Note shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions hereof shall not in any way be affected or impaired thereby.
Attachment No. 3A
4
IN WITNESS WHEREOF, the undersib ed_ has executed thisProrriissory 1
Note as of the date firstset forth above.
• ,2001 LOK PETALUMA MARINA HOTEL
COMPANY,•LLC., a California limited liability
company
By:
Kirkman L. Lok
•
President
•
By:
-Dennis A. MacDonneil,
Secretary
•
"MAKER"
•
•
•
•
•
•
•
AttachmehtNo. 3A
J
• Promissory Note — Eligible Construction Cost Loan
Disbursement Record
Amount Disbursement Date
1)
2)
3)
4)
5)
6)
7)
8)
9)
10)
Attachment No. 3A
6
ATTACHMENT NO. 3B •
PROMISSORY.NOTE- TAX:INCREMENT LOAN
NOT TO.EXCEED $2,000,000 .,2001
Petaluma,California
FOR VALUE RECEIVED, LOK PETALUMA MARINA `HOTEL
COMPANY, LLC,a California limited liability company (the "Maker"), promises
to pay to the:COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF
PETALUMA, a public body, corporate and politic, organized,and existing under
the laws of the State of California (the "Holder"), or order at 11�English Street,
Petaluma, California or at such other place as Holder may direct,from time to
time in writing, the principal suin of TWO.MILLION DOLLARS ($2,000,000) or
so much thereof which has been disbursed by the Holder to the Maker pursuant
to Section 503 of the Owner Participation Agreement, as hereinafter described
("Tax Increment Loan"), together with..interest and other charges;as set forth
hereinbelow. All sums payable hereunder shall be payable in lawful money of .
•
the United States of America.
1. Owner Participation Agreement - This promissory note
("Promissory Note") is made and delivered pursuant to and in implementation
of that certain Owner Participation Agreement dated X2001, by and
between the Holder and the Maker (the "Agreement"). The terms and
conditions,of such Agreerrient, which, among other things,allow for acceleration
of this Promissory-Note upon the occurrence of certain events of default, are
herebyincorporated-by reference. Capitalized terms not defined herein are
defined in Section 100 of the Agreement. In the event there is any conflict.
between the terms of this'Promissory Note and the terms of the Agreement, the
terms;of'the Agreement shall;govern.
2. Interest Rate; Payments— For the first ten (10) years.of the Tax
Increment Loan term, this Promissory Note.shall bear interest from the date.of
disbursement at the rate of three percent (3%), per annum, compounded
annually. Beginning in the eleventh (11th) year of the Tax Increment Loan term
and continuing.until the Tax Increment Loan has been repaid in full,_this.
Promissory Note shall bear interest at. the rate, of five, and eighty-seven one
hundreths percent (5.87%) per annum, which shall be payable in arrears as
provided below., Maker shall repay to Holder the outstanding principal balance
of the Tax Increment Loan, together with all accrued interest, in sixty (60) equal
quarterypayments commencing-on the first day of the second calendar quarter
of the eleventh (11th) Operating,Year and continuing on the first'day of each
calendar quarter thereafter until the entire outstanding principal amount of the
Attachment No..313
•
•
•
•, Tax Increment Loan,together with all accrued interest;:has been repaid in full.
Theamount of each such quarterly payment shall,be calculated on the basis of an
equal-payment fifteen (15) year amortization of principal and interest. If,
following the first day of the eleventh (11th) Operating Year, Maker makes a
Deferred Participation Payment to the Holder as provided in Section 3 below,
then the remaining outstanding principal balance of the Tax Increment Loan
shall be reamortized on the date Maker makes the Deferred Participation
Payment, for the period of time equal to (a) fifteen (15) years minus (b) the period
of time commencing on the first day of the.eleventh (11th) Operating Year and
ending on the date, Maker makes the Deferred. Participation Payment.
Notwithstanding any other provision hereof to the contrary, the entire
outstanding principal balance of the Tax Increment. Loan, together with all
accrued interest, shall be immediately due and payable by Maker to Holder upon
a default by Maker under the terms of this Promissory. Note and/or the
Agreement.
3. Deferred,Participation Payments —In consideration of the Holder's
provision of the Commission.Assistance to the Maker, Maker shall pay to Holder
deferred participation payments ("Deferred Partieipation- .Payments") as
provided in this Section 3. The amount and timing,of the Deferred Participation
Payments shall be •as follows: .Upon the Sale of the Project by Maker and/or
upon the occurrence' of any Capital Event prior to the first Sale of the Project,
Maker shall pay to Holder in cash, an amount equal to the lesser of (i) fifty
percent (50%) of the Managing Ivfeinber's Net Income from,Capital.Events, or (ii)
the entire outstanding principal balance of the Promissory:.Notes, including this
Promissory Note and the Promissory Note -- Eligible Construction Cost Loan,
together with all accrued interest if such interest is required to be paid pursuant
to the terms of Sections 502 and 503 of the Agreement (the"Commission Equity
Share"). It is understood that there'may be more than one Capital Event prior to
the Sale of the Project and that the provisions of this Section 3 are intended to
apply to each such Capital.:Event until the entire outstanding principal balance of
this Promissory Note, together with all accrued interest if such interest is
required to be paid pursuant to the terms of Sections 502 and 503 of the
Agreement, has been paid in full. Upon the occurrence of a Capital Event, the
Commission Equity Share shall be disbursed directly to Holder prior to or
simultaneously with the disbursement of the Managing Member's Net Income
from Capital Events. Upon the Sale of the Project;-the Commission Equity Share
shall be paid to Holder directly from the escrow established for the Sale of the
Project.
4. Prepayment—Maker may prepay all or any part of the outstanding
principal balance of`,this Promissory Note at any time, without penalty. Within
thirty (30) days following such prepayment; in full, Holder shall return this
Promissory Note to Maker marked "cancelled."
5. Deed of Trust— This Promissory Note is secured by a deed of trust
dated concurrently herewith, encumbering the Site. Maker shall record the deed
of trust concurrently with the execution of this Promissory Note.
Attachment No. 3B
7
•
•
•
6. Default — Maker will be in default under this Promissory Note
upon the occurrence of any one or more.of'the>following;events (each, an "Event
of Default"):
•(I) Maker fails .to,make 'any payment of principal .under this
Promissory Note within three' (3) days after.the date when
due; or
(ii). Maker fails. to comply with any provision,contained:in.this
Promissory Note of the Agreement; and does. notcure that
failure within thirty (30) days after written notice from
Holder; or
•
(iii) Maker becomes.insolvent:or the subject.of any,bankruptcyor
other voluntary or involuntary proceeding, in or out of
court;for the adjustment of debtor-creditorrelationships; or
(iv) Maker dissolves or'liquidates;or •
(v) Any representation or warranty made or given,by`Maker'in
the Agreement proves to be, false or misleading in any
material respect; or
(vi) An event of default,under°the Agreement occurs.
If an,Event.of Default occurs, the,Holder•may exercise any right of remedy which
it has under this Promissory Note or the :Agreement, or which is otherwise.
available atlaw or inequity or by statute, and all of Holder's rights:and remedies
shall be cumulative. Upon the occurrence of any Event of Default, Holder's
obligation to'len d under the Agreement shall automatically terminate. Upon the
occurrence of any Event of Default, all of Maker's obligations' ,under this
Promissory Note;and theAgreementmay become,immediately due and'payable
without notice of default, presentment or demand-for payment, protest or notice
of nonpayment-or dishonor, or other'notices;.or, demands of any kind or
character, all at Holder's option, exercisable in its sole discretion. Holder's
failure to exercise such option shall notconstitute a waiver of such option with
respect:to. any subsequent event. •Holdera' failure in the exercise ofe any other •
-right or;remedy hereunder or under any agreement or other instrument which
securesthe indebtedness or is related thereto shall not,affect any right or remedy
and no single or partial exercise,of,any such right:or remedy shall prebiude any
further.exercise thereof.
•
7. Waivers Maker expressly waives:. .(a) any defense based upon
any legal disability or other defense of Maker, or other person, or by reason of
the cessation or limitation of the liability of Maker from anycause:other than full
payment and performance of those obligations of Maker which are provided for
hereunder; (b) any defense based Upon' any lack of authority.of the members;
•
Attachment No. 3B
3
•
• officers;. directors, partners or agents acting on purporting to act on behalf of
Maker or any member of Maker orany defect in the formation of Maker or any
member of Maker; (c) any defense based upon the application by Maker of the
proceeds of this Promissory. Note for purposes other than the purposes
represented by Maker to Holder or intended or understood by Holder or Maker;
(d) any defense based upon Holder's election of any remedy against Maker;
(e) any defense based upon Holder's election, in any proceeding instituted under.
the Federal Bankruptcy Code, of the application of Section 1111(b)(2) of the
• Federal Bankruptcy Code'or any successor.statute; (f) any defense based upon
any borrowing or any grant of a security interest under Section 364 of the Federal
Bankruptcy Code; (g) any right of subrogation, any right to enforce any remedy
• which Holder may have against Maker and any right to participate in, or benefit
from, any security for this Promissory Note or the other documents now or
hereafter held by Holder; and (h) presentment, demand, protest and all notices
other than any notice expressly provided for in this Promissory Note and/or the
Agreement.
8. Costs — Upon the occurrence of an Event of Default, Maker
promises to pay all costs, expenses and attorneys' fees incurred_by the Holder in
connection with the collection or enforcement of this Promissory Note or any
part of it, whether or not suit is filed, including but not limited to, all costs,
expenses and attorneys' fees incurred by the Holder in connection with any
insolvency, bankruptcy, reorganization, arrangement or similar proceedings
involving Maker. As used herein, the term "attorneys' fees" means the full costs
of legal services performed in connection with the matters involved, calculated
on the basis of usual fees charged by an attorney performing those services, and
not limited to "reasonable:attorneys' fees" as defined by any statute or rule of
any court in which an action hereunder may be brought.
9. Amendments and Modifications —This Promissory Note may not
be changed orally, and may be amended only by an agreement in writing, signed
by the party against whom enforcement of any waiver, change, modification or
dispute is sought.
10. Governing Law — This Promissory Note shall be construed and
enforced in accordance with the laws of the State of California
11. Successors — The terms "Maker" and "Holder" shall be construed
to include the parties'respective successors and assigns..
12. Severability=If any provision of this.Note shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions hereof shall not in any way be affected or impaired thereby.
•
•
Attachment No: 3B
4
•
IN WITNESS WHEREOF; the imdersib ed has executed this Promissory
Note as of the date first sefforth above.
,.2001 L'OK PETALIJMA..MARINA HOTEL.
COMPANY, LLC.,-a.California limited liability
company
By:
Kirkman L. Lok •
President
•
By:
-Dennis A. MacDonneil,
Secretary
"MAKER"
S
•
•
•
Attachment No. 3B
5
•
•
410 Promissory Note —Tax,Increment.Loan •
Disbursement Record
Amount Disbursement Date
1)
2)
3)
4)
5)
6)
•
7)
8)
9)
10)
• •
•
•
Attachment No. 3B
6
•
•
•
•
ATTACHMENT NO:.4.
SCHEDULE OF PERFORMANCE
Action Date
1. Submission -- Evidence of Equity At least 10 days prior to disbursement of
Capital and Mortgage Financing. The Eligible Construction Cost Loan.
Participant shall submit to the
Commission for review and approval,
evidence of equity capital and a mortgage
financing commitment necessary for
development of the Site. (Section 312)'
2. Approval - Evidence of Equity Capital Within 10 days of submission.
and Mortgage Financing. The
Commission shall approve of disapprove
the Participant's evidence'of e4tiity capital
and a mortgage financing.commitment.
(Section 312)
3. Submission - Certificates of Insurance. Prior'to'the commencement of construction
The Participant shall furnish to the of the Participant's improvements on the
• Commission duplicate originals or Site.
appropriate certificates of bodily injury
and property damage insurance policies.
(Section 305)
4. Construction Loan Escrow Instructions. Prior to the first disbursement of the
Participant and the Commission shall Eligible Construction Cost Loan.
have approved and executed construction
loan escrow instructions. (Section 502)
5. Governmental Permits. The Participant Prior to the commencement of construction
shall obtain any and all permits required of the Participant's improvements on the
by the City or any other governmental Site.
agency. (Section 302)
6. Commencement of Construction of Not later than October31,2000.
Participant's Improvements. The
Participant shall commence construction
of the improvements:to be constructed on
the Site. (Section 303)
7. Completion of Construction of Within 18 months after commencement
Participant's 'Improvements. The thereof by the Participant.
Partieiparit shall complete-construction of
the improvements to be constructed on
the Site. (Section'303)
•
Attachment No. 4 •
•
•
•
Action Date I
8. Contractor Written Certifications: The On the first day of each calendar quarter
Participant shall submit to the during construction of the Project and on
Commission written certifications the date of issuance of a Certificate of
regarding local and union contractor Completion.
hiring targets. ,(Section 314.1)
9. Issuance Certificate of Completion. Promptly after completion of all
The Commission shall furnish the construction required to b e completed by
Participant with a Certificate of the Participant on the Site and upon
Completiori. .(Section 311) written.request therefor by theParficipant.
10. Living Wage Certifications. The, On each anniversary of the date of issuance
Participant shall submit to the of the,Certificate of Completion.
Commission written certifications -
regarding payment of living wages.. ,
(Section314.3)
11. Funding of Nonprofit Corporation.. No later;than.thirty (30) daystfollowing the
Participant shall make payment's to the start of each of the 1st through 5th
riverfront 'improvements nonprofit Operating Years.
corporation. "(Section.506)
12. Annual .,Financial Statements:• No later than sixty (60) days following the
Participant shall provide the end of each Operating Year.
Commission's Executive Director with
written annual financial statements.
•
(Section 505) -
•
•
• 4'
•
Attachment No. 4 ,
ATTACHMENT NO. 5
•
SCOPE OF DEVELOPMENT
A. GENERAL
The Participant agrees•that the Site shall be developed and improved in
accordance with the provisions of this Agreement and the plans, drawings and
related documents approved by the'City, pursuant to Design Permit No. .
The Participant, its supervising architect, engineer and contractor, shall work to
ensure the overall design, architecture and color of the improvements on the Site
comply with the requirements of the City set forth in the Design Permit.
B. PARTICIPANT'S IMPROVEMENTS
The Participant shall construct, or cause to be constructed, on the Site, a
Mobile three (3) star and/or AAA four (4) diamond Sheraton Hotel containing
one hundred eighty-three (183) guest rooms, over nine thousand nine hundred
y• (9,900) square feet of banquet/meeting space, eighty plus (80+) seat signature
restaurant, and a fifty (50) seat cocktail lounge, health club for guests, pool and
spa area for guests, and special "Club Level" for frequent guests, all contained
within a four (4) story building of approximately one hundred thirty-four
thousand seven hundred (134,700) square feet: Also, the Participant will
construct and deliver to the Petaluma Marina Project not less than one hundred
eighty-four (184) parking spaces for the hotel and the Project on the.Parking Lot.
C. ARCHITECTURE AND DESIGN
The Participant's improvements shall be of high,architectural quality, shall
be well landscaped, and shall be effectively and aesthetically designed. The
shape, scale of volume, exterior design and exterior finish of the buildingmust
be consonant with the Design Permit.
D. LANDSCAPING
Landscaping,shall'embellish all open spaces upon the Site to integrate the
Participant's improvements with adjacent sites with the Project Area.
Landscaping.includes such materials as paving, trees, shrubs and other plan
materials, landscape containers, plaza furniture, top soil preparation, automatic
irrigating, landscape and pedestrian lighting. Landscaping shall carry out the
objectives and principals of the Commission's design to accomplish a high
• quality aesthetic environment.
Attachment No. 5
•
E. SIGNS •
All signs on the exterior of the buildings are of special. concern to the
Commission and must be in conformance with the City's sign;ordinance.
F. SCREENING
Trash areas shall be screened on,at least three(3) sides;and have movable
doors and other devices to obscure such areas from view. All fire standpipes and
such other fire related mechanical devices shall be screened with,plant materials.
Rooftop equipment shall be, reasonably hidden so as to mitigate views from
principal eledationssurrounding•thedevelopment.
G. APPLICABLE CODES
The Participant's improvements shall beconstrued in accordance with the
Uniform Building Code (with City:modifications) and'the Municipal.`Code.
•
•
•
•
Attachrnent,No. 5
•
2
•
ATTACHMENT NO. 6
•
FORM OF CERTIFICATE OF COMPLETION
RECORDENG REQUESTED BY
AND WHEN RECORDED MAIL TO:
Community Development Commission
of the City of Petaluma
11 English Street .
Petaluma,California 94953
Attention: Executive Director
This document is exempt from the payment of a recording fee
pursuant to Government Code.§.6103.
CERTIFICATE OF COMPLETION
THIS CERTIFICAI E OF COMPLETION (the "Certificate") is made by the
COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF PETALUMA,
a public body corporate and politic (the "Commission"), in favor of LOK
PETALUMA MARINA HOTEL COMPANY, LLC, a California limited liability
company (the "Participant"), as of the date set forth below.
•
RECITALS
A. The Commission and the Participant have entered into that certain
Owner Participation Agreement (the "OPA") dated , 2001
concerning the redevelopment of certain real property situated in the City of
Petaluma, California, as more fully described in Exhibit "A" attached hereto and
made a part hereof.
B. As referenced in Section 311 of the OPA, the Commission is
required to furnish the Participant or its successors with a Certificate of
Completion upon completion of construction of the Improvements (as defined in
Section 100 of the OPA), Which Certificate is required to be in such form as to
permit it to be recorded in the Recorder's Office of Sonoma County. This
Certificate is conclusive determination of satisfactory completion of the
construction and development required by the OPA.
• C. The Commission has conclusively determined that such
construction and development has been satisfactorily completed.
Attachment No. 6
•
NOW, THEREFORE, the Commission hereby certifies as follows:
1. The;work of Improvements tote constructed by the Participant has
been fully and satisfactorily completed in conformance with the OPA. Any
operating requirements and all use, maintenance or nondiscrimination,covenants
contained in the OPA shall remain in effect and enforceable according to their
terms.
•
2. Nothing contained in this instrument shall modify inan_y other way
any other provisions of the OPA.
IN WITNESS WHEREOF, the, Commission has executed.this Certificate
this _day of
COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF PETALUMA, a public body,
corporate and politic
By:
Chairman
ATTEST: 1
Secretary
•
"COMMISSION"
APPROVED AS TO FORM:
By:
Commission Counsel •
•
•
•
•
S
Attachment No. 6,
2
EXHIBIT "A'
SITE DESCRIPTION
[To Be Inserted]
•
I
Exhibit A to Attachment No. 6
• ACKNOWLEDGMENTS
Acknowledgments
•
ATTACHMENT'NO.7 •
•
FORM OF MEMORANDUM OF OWNER PARTICIPATION AGREEMENT
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Community Development Commission
of the City of Petaluma
11 English Street
Petaluma,California 94953
-
Attention: Executive Director
This document is exempt from the payment of a recording ree
pursuant to Government Code§:6103.
•
MEMORANDUM OF'OWNER PARTICIPATION AGREEMENT
THIS MEMORANDUM OF OWNER PARTICIPATION AGREEMENT
("Memorandum"), dated for identification purposes as of , 2001, is
entered into by and between the COMMUNITY DEVELOPMENT
• COMMISSION OF THE CITY OF PETALUMA, a public body, corporate and
politic ("Commission"), and LOK PETALUMA MARINA HOTEL.COMPANY,
LLC, a California limited`liability company ("Participant).
1. Owner Participation Agreement. Commission and Participant
have executed an Owner Participation. Agreement dated for identification
purposes as of ,2001, which provides, among other things,for (i) the
development by Participant of a four-story, one hundred eighty-three (183)
room, three{3) star/four`(4) diamond Sheraton hotel on that certain real property
(the "Site") located in the City of Petaluma, County of Sonoma, State of
California, more fully described in Exhibit "A" attached hereto and incorporated
herein by this reference, (ii) the Commission to make certain loans to the
Participant, (iii) the continuing operation of the improvements to be constructed
on the Site as a three (3)star/four (4) diamond hotel, (iv) the maintenance of the
site and improvements thereon as set forth in the Owner Participation
Agreement, and (v) Participant's payment of Deferred Participation.Payments to
Commission upon the occurrence of certain Capital Events and upon the Sale of
the Project. The Owner Participation Agreement is available for public
inspection and copying at the office of'the City Clerk, City of Petaluma City Hall,
11 English Street, Petaluma, California 94953. All of the terms, conditions,
provisions and covenants of the Owner Participation Agreement are
incorporated in this Memorandum by reference as though written out at length
• herein, and the Owner Participation Agreement and this Memorandum shall be
i
deemed to constitute a single instrument or document.
Attachment No. 7
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 Owner Participation Agreement. In the event of
any inconsistency between the terms, conditions, provisions and covenants of
this Memorandum and the Owner Participation Agreement, the terms,
conditions, provisions and covenants of:the Owner Participation Agreement;
shall prevail;
The parties have executed this Memorandum on the dates specified
immediately adjacent to their respective signatures.
, 2001 LOK'PETALUMA MARINA HOTEL
COMPANY,LLC., a California limited liability
company
By:
Kirkman L. Lok
•
President
By:
Dennis A. MacDonneil,
Secretary
"PARTICIPANT" •
, 2001 COMMUNITY DEVELOPMENT COMMISSION.
OF THE CITY OF`PETALUMA, a.public body,
corporate,and politic
By:
• Chairman
A11EST:
•
Secretary
"COMMISSION"
APPROVED AS TO FORM:
By: •
Commission Counsel
•
Attachment:No: 7
2
• EXHIBIT A
•
LEGAL DESCRIPTION OF SITE
[To Be Inserted]
•
•.
Exhibit A to Attachment No. 7
ACKNOWLEDGMENTS.
•
Acknowledgments
•
•
•
ATTACHMENT No.:8
•
FORM OF AGREEMENT TG BE RECORDED AFFECTING REAL PROPERTY
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Community Development Commission
of the City of Petaluma
11 English Street
Petaluma,California 94953
Attention: Executive Director
This document is'exemptfrom•the payment of a recording fee
pursuant to Government Code§•61Q3.
AGREEMENT TO BE RECORDED AFFECTING REAL PROPERTY
THIS AGREEMENT TO BE RECORDED AFFECTING REAL PROPERTY
dated for references purposes , 2001 (this "Agreement"), is
entered into by and between. the. COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF PETALUMA, a public body, corporate and
politic ("Commission"), and LOK PETALUMA MARINA HOTEL COMPANY,
LLC, a California limited liability company ("Participant), with reference to the
following facts:
RECITALS
A. Commission and Participant have executed an Owner Participation
Agreement dated for reference purposes as of , 2001 ("OPA"),
which provides, .among other things, for (i) the development by Participant of a
four (4) story, one hundred eighty-three (183) room, three (3) star/four
(4)diamond Sheraton_hotel on that certain real property (the "Site") located in the
City of Petaluma, County of Sonoma, State of California;`inore fully descfibed.in
Exhibit "A" attached hereto and incorporated herein by this reference, (ii) the
Commission to make certain loans to the Participant, (iii) the continuing
operation of the improvements to be constructed on the Site as a three (3)
star/four (4) diamond hotel, (iv) the,maintenance of the Site and Improvements
thereon and (v)'Participant's payment of Deferred Participation Payments. to
Commission upon the occurrence of certain Capital Events and upon the Sale of
• the Project. The Owner Participation Agreement is available for public
inspection and copying'at the office of the City Clerk, City of Petaluma City Hall,
11 English Street, Petaluma, California 94953. Capitalized terms utilized in this
Attachment No. 8
•
Agreement and not otherwise defined shall.have the same meaning as setforth •
in Section 100 of the OPA.
B. The Site is within the.Petaluma Community Development Project
and- is ,subject to the provisions of the Redevelopment Plan for the Petaluma
Community Development Project which was approved and adopted by
Ordinance No 1725 of the City Council of the City of Petaluma on August 17,
1988, as amended, and incorporated herein-by reference.
C. Participant has agreed with Commission to.execute:arid record this
Agreement- in order to bind.itself and future owners of the Site to certain
obligations regarding the on-going use, operation and maintenance of the Site
and certain other covenants, all as more particularly set forth herein.
D. The enforcement of the covenants and requirements set forth herein
will ensure the proper implementation of the Redevelopment Plan and will,
therefore, benefit the Participant,the City of Petaluma, the Commission, and the
properties located within the Petalurna..COmmunity DevelopmendProject:
AGREEMENT •
-NOW, THEREFORE, in consideration of the mutual benefits accruing to
•
the parties hereto, and for other valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the.Participant on behalf of itself '
and its successors, assigns and each:successor°in interest to the Site or any part
thereof;hereby covenants and'agrees as follows;
1. Use Covenants: The Participant-covenants and agrees for itself, its
successors, assigns,,and every successor in interest-to the Site or any-part thereof,
that the Participant shall continuously maintain, use and operate the Site as a
hotel, which meets the minimum Hotel Rating;standards set forth.in;Section 100
of the OPA, for the period of time specified in Section 5, below provided,
however, that the covenant to continuously.use and operate.the Site as set forth
in this Section 1 shall not apply,-to any foreclosing lender during the period of
time such foreclosing lender owns the Site or to any successor in interest of the
foreclosing lender. Participant further covenants to initially open and operate
the hotel under a "Sheraton" flag: No uses other than those specifiediabove`shall
be permitted without the prior written approval of the Commission ?which may
be granted or denied in Commission's sole discretion. All uses conducted on the
Site, including, without limitation, all activities Undertaken by the,Participant
pursuant to this Agreement, shall conform to the Redevelopment Plan and all
applicable provisions of the Petaluma'Municipal Code. The foregoing covenants
shall run with the land.
2. Maintenance Covenant. Following completion of construction of
the Improvements, .Participant, shall maintain in accordance with the •
Maintenance Standards, as hereinafter defined, the'private improvements' and
Attachment No. 8
•
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public ;improvements;;and landscaping to the •curbline(s) on the .Site. Said
'improvements shall include, but not be limited to, buildings, sidewalks,
pedestrian lighting, landscaping,irrigation of landscaping, architectural elements
identifying the Site and any and all other improvements on the Site and in the
public right-of-way to the nearest curbline(s) abutting the Site To accomplish
the maintenance, Participant shall either staff or contract with and hire licensed
and qualified personnel to perform the maintenance work, including the
provision of labor, equipment, materials, support facilities, and any and all other
• items necessary to comply with the requirements of this Agreement. The
maintenance.covenants and obligations set forth in this Section 2 shall remain in
effect for the period of time specified'in Section 5,below.
(a) Maintenance Standards. The following standards
("Maintenance Standards") shall be complied with by Participant and its
maintenance staff,contractors and subcontractors:
(i) •Landscape maintenance shall include, but not be
limited to: watering/irrigation; fertilization; mowing;
edging; trimming of grass; tree and shrub pruning;
trimming and shaping oftrees and shrubs to maintain
a healthy, natural appearance,! safe road conditions
and visibility, and irrigation coverage;. replacement,
• as needed, of all plant materials; control of weeds in
all planters, shrubs, lawns; ground covers, or other
• planted areas; and staking for.support•of trees.
(ii) 'Clean-up maintenance shall include, but not be
limited 'to: maintenance;of all sidewalks, paths and
other paved area in clean and weed-free condition;
• maintenance of all such areas clear of dirt, mud,trash,
debris or other matter which is ;unsafe or unsightly;
removal of all trash, litter and other debris from
improvements and landscaping prior to mowing;
clearance and cleaning of all areas maintained prior to
the end of the day on which the maintenance
operations are,performed to ensure that all cuttings,
weeds, leaves and other debris are properly disposed
of by maintenance workers.
(iii) All maintenance work shall conform to all applicable
• federal and state Occupation Safety and Health Act
standards and regulations for the performance of
maintenance.
•
(iv) Any and all 'chemicals, .unhealthful substances, and
• pesticides used in and during maintenance shall be
applied in strict accordance with all Governmental
Requirements. Precautionary measures shall be
Attachment No. 8
3
employed recognizing, that all areas are open to •
public access:
(v) The Improvements shall be maintained in
conformance and in compliance with the Sheraton
.franchise agreement standards, or equivalent, as the
same may be amended froth time to time with the
approval of the City and in accordance with the
. custom and practice generally applicable to
comparable hotels located within Sonoma County, •
California. For purposes of this subsection (v),
comparable hotels' shall be those. meeting .'.the
minimum Hotel ,Rating . The public•. right-of-way .
improvements to the curbline(s) shall:be maintained-
as required by this subsection (a). in goodcondition
and in accordance with the custom and practice
,generally applicable to public rights-of-way within
the City of.Petaliima.
(b) ,Failure to Maintain:Improvements. If Participant does not,
maintain the private and public improvements.on the Site to the curbline(s):in
• the manner set forth herein and in accordance with the Maintenance-Standards,
Commission and/or City shall have the right to maintain such private and/or'
public improvements, or to contract for the correction of such deficiencies, after
written notice to Participant. However,• prior to taking any such action,.
Commission agrees to notify Participant in writin g if the condition of said
improvements does`not conform to the Maintenance Standards and to specify the
• deficiencies and'the,actions required to be taken by Participant to cure the.
deficiencies. Upon notification of any maintenance deficiency, Participant,shall
have thirty (30) days within which to commence to correct, remedy or cure the
deficiency and thereafter diligently and continuously complete correction,..
remedy or cure of the deficiency: If the written notification states that the
problem is urgent•and relates to ,the pubic health and safety, then:.Participant
shallhaveforty-eight,(48) hours to`rectify the problem.
In the event Participant' fails to correct, remedy, or cure or' has not_
commenced correcting, remedying'or curing such maintenance deficiency after
notification and after expiration ot any applicable cure period, then City and/or
Commission shall have the right'to maintain such improvements: Participant
agrees to pay Commission;such.charges and costs upon demand. Until,so paid,
the Commission shall-have a lien on the Site for the amount of such charges or
costs, which lien shall be,perfected'by the recordation Of a "Notice...of Claiin of
Lien" against the Site Any lien in favor of the Commission created or claimed
hereunder is expressly made subject and subordinate,to any mortgage or deed of
trust made in good-faith-and for value, recorded-as:of the date of the recordation '
of the Notice of Claim of Lien, and no such lien shall in any way defeat, •
invalidate, or.impair•the,obligation or priority of any suchmortgage'or deed of
trust, unless the mortgagee:or beneficiary thereunder expressly subordinates his
Attachment'No.•;8:.
4
•
interest, of record, to such lien: No lien in favor of the Commission created or
claimed hereunder shall in;any way defeat, invalidate,,or impair the obligation or
priority of any:lease, sublease or easement unless such instrument is expressly
subordinated to such lien. Participant acknowledges and agrees that the City
and Commission may also pursue any and all other remedies available in law or
equity in the event of a breach of the maintenance obligations and covenants set
forth herein.
3. Nondiscrimination Covenant. There shall be no discrimination
against or segregation of any person or group of persons on account of race,
color, creed, religion, sex, marital status, physical or mental disability or medical
condition, handicap, national origin or ancestry in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the Site, nor shall Participant
itself, or any person claiming under or through it establish or permit any such
practice or practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees; subtenants,
sublessees or vendees of the Site. The foregoing covenant shall run with the
land.
Participant shall refrain from restricting the rental, sale or lease of
the Site on the basis of race,.color, creed, religion, sex, marital status, physical or
mental disability or medical condition, handicap, national origin or ancestry of
any person. All such deeds, leases or contracts shall, contain or be subject to
substantially the following nondiscrimination or•nonsegregation clauses:
(a) In deeds: "The grantee herein covenants by and for himself
or herself, his or her heirs;.,executors, administrators and assigns, and all persons
claiming under or through them, that there shall,be no discrimination against or
segregation of, any person or group of persons:on account of race, color, creed,
religion, sex, marital status, physical or mental, disability or medical condition,
handicap, national origin or ancestry in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the land herein conveyed, nor shall the
grantee himself or herself or any person claiming under or through him or her,
establish or permit any.such,practice or practices of discrimination or segregation
with reference to the selection, location, number, use or occupancy of tenants,
lessees, subtenants, sublessees or vendees in the land herein conveyed. The
foregoing covenants shall run with the land."
(b) In leases: "The lessee herein covenants by and for himself or
herself, his or her heirs, executors, administrators and assigns, and all persons •
claiming under or through him or-her, and this lease is made and accepted upon
and subject to the following conditions:
"There shall be no discrimination against or segregation of any
person or group of persons on account of race, color, creed, religion, sex, marital
• status, physical or mental disability or medical condition, handicap, ancestry or
national origin,in the leasing,:_subleasing,'transferring, use, occupancy, tenure or
enjoyment of the premises:herein leased nor shall the lessee himself or herself, or
Attachment No. 8
5
any person claiming under or through him or her, establish or permit any such S
practice or practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees, sublessees,
subtenants or vendees in the premises herein leased."
(c) In contracts: In contracts relating to the sale, transfer or
leasing of the Site or any interest therein: "There shall be no discrimination
against,or segregation of, any person, or group of persons on account of, race,
color, creed, religion, sex, marital status, physical or mental disability or medical
condition, handicap, ancestry or national origin, in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the premises, .nor shall the
transferee.himself or herself or anyperson claiming under or through him or her,
establish or permitbanysuch practice/or practices discrimination or segregation
with reference to the selection, location, number, use or occupancy of tenants,
lessees,subtenants, sublessees or vendees of the premises." .
4: Minimum Project Value Covenant. Participant covenants and
agrees that in connection with:its construction.:of the Project, Participant shall
expend not less than SEVENTEEN MILLION DOLLARS ($17,000,000) in "hard"
construction costs; "hard" construction costs shall consist exclusively of on-site
labor and materials expenditures. "Hard" construction costs shall,not include
construction or project management fees;.legal,'engineering or architectural fees;
overhead; costs of furniture, fixtures and equipment; or any other costs or fees
typically characterized by the construction/development industry as "soft"
costs. Iii addition, Participant covenants and agrees that'it shall expend not-less
than THREE MILLION-FIVE HUNDRED THOUSAND'DOLLARS ($3,500,000)
on furniture, fixtures and equipment for the Project. Participant shall provide
evidence reasonably_satisfactory to Commission of all of its hard construction
cost and furniture, fixture and equipment:expenditures prior to submitting its
requests for issuance of Certificate':olCompletion as provided in the OPA.
5: Term.- The covenants contained in this Agreement shall remain.in
effect until the issuance of the Certificate of Completion for the work of
Improvements, except for the following:
(a) The covenants pertaining to use and operation of the Site
which are set forth in Section 1 shall'remain in effect until the first to occur of
(i) the termination 'date of the Redevelopment Plan, (ii) the Participant's
repayment, in full, of the entire outstanding"principal balance of the:Promissory
Notes; or (iii) Participant's payment, in full, of all of the Deferred Participation
Payments
(b) The covenants 'pertaining to maintenance of the 'Site and all
improvements thereon, as set forth'in Section 2; shall remain in effect until the.
termination date,.of the Redevelopment Plan; provided, however, Participant •
shall be-released froth its obligations to maintain the public improvements,at the.
Site upon assumption of,all of Participant's maintenance obligations with respect
to said'ptiblic improvements by the Petaluma Marina Owners Association, Inc. •
Attachment No.'S
6
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(c) The covenants against discrimination„as set forth in Section
3, shall remain in effect in perpetuity.
6. Covenants Run with the Land. - The covenants and agreements
established in this Agreement shall, without regard to technical classification or
designation, be binding on*the Participant, its successors and assigns and any
successor in interest to the Site, or any part thereof,.for the benefit of and in favor
of the Commission, its successors and assigns, and the City, for their respective
. terms as set forth in Section 5, above.
7. Remedies. The Commission, in the event of any breach of any of
the covenants contained herein, shall have the right to exercise all the rights and
remedies and to maintain any actions at law or suits in equity or other proper
proceedings to enforce the curing of the breach. •
• 8. Severability. If any term, provision, condition or covenant of this
Agreement or its application to any party or circumstances shall be held, to any
extent, invalid or unenforceable, the remainder of this Agreement, or the
application of the term, 'provision, condition or covenant to persons or
circumstances other than those as to whom or which it is held invalid or
unenforceable, shall not be affected, and shall be valid and enforceable to the
fullest extent permitted bylaw.
9. Titles and Captions. Titles and captions are for convenience of
reference only and do not define, describe or limit the scope or the intent of this
Agreement.
10. Modification. The Commission, its successors and assigns, and the
Participant and its successors and assigns in and to all or any part of the fee title
to the Site shall have the right with the mutual consent of the Commission to
consent and agree to changes in, or to eliminate in whole or in part, any of the
covenants herein without the consent of any tenant, lessee, easement holder,
licensee, mortgagee, trustee, beneficiary under a deed of trust or any other
person or entity having any interest less than a fee in the Site. The covenants
contained in this Agreement, without regard to technical.classification;shall not
benefit or be enforceable by any owner of any other real property within or
outside the Redevelopment Project,or any person or entity having any interest in
any other such realty.
•
•
Attachment No. 8
7
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11. Interpretation. In the event:there is-any, conflict between the terms •
of this Agreement:and the terms of the OPA, the terms of the OPA shall govern.
IN;WITNESS WHEREOF, the parties have executed this Agreement as of
the dates set forth below.
,2001 LOK7PETALUMA MARINA.HOTEL
COMPANY; LLC., a California limited liability
company
By:
Kirkman L. Lok
-President
By:
Dennis A. MacDonneil,
• Secretary
•
"PARTICIPANT"
, 2001 COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF PETALUMA, a public body;•
corporate and politic .
By: •
Chairman •
ATTEST:
Secretary_
• ".COMMISSION"
APPROVED AS TO FORM:
By:
Commission.Counsel •
•
•
•',
• Attachment No. 8
8
EXHIBIT A
LEGAL DESCRIPTION OF SITE
[To Be Inserted]
• •
•
Exhibit A to Attachment No. 8
0 ACKNOWLEDGMENTS
•
•
0
Acknowledgments
ATTACHMENT NO. 9
ELIGIBLE PROJECT COSTS BUDGET
ELIGIBLE ESTIMATED
PROJECT COSTS BUDGET AMOUNT
1. Site Improvements (Parking Lot) $551,599
2. Concrete Piles and Foundation $1,804,605
3. Boardwalk Improvements $258,760
4. Pre-Development Costs (Including
Architectural and Engineering) $1,387,120
Total Estimated Eligible Project Costs $4,002,084
•S
S
Attachment No. 9
•
•
• ATTACHMENT NO. 10
GUARANTY
THE GUARANTY ("Guaranty").is made as of the day of
2001, by LOK PETALUMA MARINA DEVELOPMENT COMPANY, LLC, a
California limited liability company ("Guarantor") in favor of THE
COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF PETALUMA,
a public body, corporate and politic ("Commission").
RECITALS
A. Commission and Lok Petaluma Marina Hotel Company, .LLC, a
California limited liability company (the "Participant") entered into an Owner
Participation Agreement dated ; 2001 (the "OPA"), pursuant to
which the Participant, agreed to acquire and develop certain real property in the
• City of.Petaluma, Sonoma County, California more particularly described in the
OPA (the "Site''). Initial capitalized:terms used in this Guaranty and not defined
herein shall have the meanings given to such terms in the OPA.
B. As a condition to entering into the OPA. with Participant on the
terms set forth in the OPA, including without ,limitation, certain monetary
assistance by the Commission;Commission has required that Guarantor execute
this guaranty of performance of the Participant's obligations under the OPA, and
the additional documents and instruments to be entered into pursuant to the
OPA (collectively, the "Project Documents").
NOW, THEREFORE, at the request of Participant, Guarantor guarantees,
covenants, warrants and agrees as follows:
1-. ,Guaranty. Guarantor hereby unconditionally and irrevocably
•
guarantees the full, timely and complete performance by the Participant, its
successors or assigns, of each and all of the obligations of Participant under the
Project Documents in accordance'with and subject,to their respective terms and •
conditions; including any amendments thereto (collectively, "Obligations").
2. Obligations of the Guarantor_Unon Default by the Participant. If a
default by Participant under the OPA or any other Project Document shall occur,
Guarantor shall diligently proceed to cure such default and procure complete
• performance of each and all of the Obligations. However, the obligations of
Guarantor to so curesuch default and procure,complete performance of each and
all of the Obligations shall be subject to the same terms and conditions set forth
Attachment No. 10
4.
in the applicable Project Document, as would have applied to. similar 40
performance byParticipant.
3. Remedies. Guarantor shall besin4default (a "Default") hereunder if
Guarantor shall fail to perform;a monetary obligation within fifteen (15), days
after written notice from Commission to Guarantor or, if the Default is not in the
payment of money and is of such a nature as cannot be cured within such fifteen
(15) days, unless Guarantor commences to dire such Default within fifteen
(15) days after, written notice from Commission to Guarantor and proceeds
diligently to cure:thereafter. Following;a:Default, Commission, at itsoption and •
• :m
without any obligation so to do, may exercise any and all of the remedies set
forth in the OPA or any other ,remedy allowed at law or in equity,, including
bringing an,action.to enforce the;terms ofthis-Guaranty:
4. Consents of Guarantor. Guarantor hereby consentslandagrees-:that
Commission may, in such manner, upon such terms and at such times as
Commission deems best and without notice to Or further assent from Guarantor:
(a) with the consent of Participant, alter, compromise,
accelerate, extend or change the time, manner,or place for
the performance of. any Obligation hereby-guaranteed or
•change any of the terms, covenants, conditions or provisions
of the'OPA of any other Project Document;
•
•
(b) waive performance or compliance with any term;, covenant
or agreement on Participant's part to be performed or
obserbed under. the OPA or any other Project Document; or
consent to failure:in or departure from such performance or
compliance;
(c) transferand;assign the Project Documents,or any of them;
(d) accept additional security for the. Obligations from third'
parties,. or exchange; sell; surrender; release, reconvey,
subordinate, modify, waive;,rescind, compromise or extend,
in whole or in part, any security therefor, or permit or
consent to anysuch action or the result of any such•action,
(e) request and accept other, guarantees of the Obligations from
third, parties and, in whole or in part, surrender,:release,
subordinate, modify; waive, rescind, compromise or extend
any such guarantee,.or permit,or consent to any such action
or the result of any such action;,and _
(f) exercise, waive or otherwise refrain from dercismg, Lany
other right, remedy, power or privilege granted by the CPA
•
or any other Project Document or other securitpdocument
or agreement,'or, otherwise-available to Comrni'ssion, with
Attachment No. 10
°2
•
respect to (ij.the Obligations, (ii) the other obligations of
Guarantor heretuider, (iii) any security for'the"Obligations.or
(iv) other security for any or all of the other obligations
hereunder, even if the exercise of such right, remedy, power
or privilege affects or eliminates any right of'subrogation or
any other right of Guarantor against Participant.
No exercise or nonexercise by Commission of any right hereby given to
Commission, no dealing by Commission with Participant or any guarantor,
endorser or any other person, and no change, impairment, release or suspension
of any right or remedy of Commission shall in any way affect any of the,
• obligations of Guarantor hereunder or any security furnished by Guarantor or
give Guarantor any recourse against Commission.
5. Rights of Guarantor. Guarantor, in connection with its obligations
under this Guaranty, May do one or both of the following: (a) cause Participant,
as agent for Guarantor, to construct and complete the Project; or (b) cause
Participant to transfer all of its right, title and interest in and to the Site to
Guarantor, provided that Guarantor assumes all of theobligations of Participant
under the OPA and the other Project Documents (such transferee being deemed
a permitted assignee of Participant).
• 6. Interest and Attorneys' Fees. Any sum, required to be paid by
Guarantor to Commission pursuant to the terms hereof shall bear interest at a
rate equal to six and one-half percent (6-1/2%) per annum, compounded
annually, from the date said sum shall be due/until paid. If Commission expends
or incurs any sum to protect; preserve or enforce Commission's rights or
Guarantor's obligations under this Guaranty whether or not suit is filed, or if
Commission commences an action.against Guarantor to enforce this Guaranty or
for any alleged breach or default of any term or provision of this Guaranty, the
prevailing party shall be• entitled to have and recover from the party not
• prevailing reasonable attorneys' fees and all costs and-'expenses incurred,
together with interest thereon for the time and at the rate provided in this
Paragraph 6, including,without"limitation, those incurred in connection with any
insolvency, bankruptcy, reorganization, arrangement or other similar
proceedings involving Guarantor that in anyway affect Commission's exercise
of its rights, powers, remedies and privileges herein-icier.
7. No Waiver. No failure on the part of the Commission to pursue
any remedy hereunder or under,the OPA or any other Project Document shall
constitute a;waiver on the part of Commission of the right to pursue said remedy
on the basis of the<same or a subsequent Default. No extension, modification,
amendment:or renewal of the OPA, any other Project Document or any security
instrument securing the same, or any of them, or the assignment of the
Participant's interest under the OPA, shall serve to waive the provisions hereof
• or discharge Guarantor from any obligation herein contained in whole or in part,
except to the extent expressly approved by Commission in writing.
Attachment No. 10
3
8. Covenants, Representations aiid Warranties of Guarantor. •
Guarantor represents and warrants to Commission as follows:
(a) Guarantor has investigated fully whether any benefit will
inure to Guarantor by reason of the execution of this
Guaranty, and has determined that ,a direct or indirect
benefit will inure to Guarantor by reason of the execution of
•this Guaranty; '
(b) This Guaranty, when executed and delivered to
Commission;, will constitute: the legal, valid and binding
obligation of Guarantor; enforceable against Guarantor. in
accordance with its;terms;except as the same-may be limited
by laws of bankruptcy; insolvency and laws affecting the
rights`of'creditors generally.
9. Guaranty Independent. Guarantor agrees that the ;obligations of
Guarantor hereunder are independent Hof, separate.from and in addition to the
undertakings of Participant pursuant to the OPA and the other Project
Documents, and any deed of trust-or security agreement given to secure the
same, any other guaranties given in ,connection with the OPA or iany other
Project Document and any other obligations of/Guarantor to Commission. A
provisions of this Guaranty whether e artic brought
d/or any other guaran or is a, ,
iarantor is a
party in any such action or not Commission may;maintain separate actions for
other defaults. Commission's rights hereunder shall not be exhausted by its
exercise of any of its rights or remedies or by any such action or.by.any number
of successive.actions until and unless all,.Obligations hereby guaranteed and„all
other obligations of Guarantor hereunder; have been fully .performed.
Commission may enforce this Guaranty in:the event of any default:under any of
the Project Documents notwithstanding the existence of any dispute betwEen
Commission;and,Participant with respect;to the existence of such default.
10. Guarantor's Waivers. The liability of Guarantor under. this
Guaranty shall not be affected by any circumstance which might, constitute a.
discharge of a surety or 'guarantor other than the •indefeasible payment: and
performance,in full of all Obligations hereby guaranteed and all other obligations
of Guarantor..hereunder. Without- limiting the generality of the .foregoing;
Guarantor hereby waives and agrees`not to,assert`or take advantageof:
(a) any,right to require Comiission to .marshal assets in favor
of Participant, Guarantor, any other guarantor,,or, any-other
person; to proceed against Participant, any other guarantor•
or any other person; to proceed against or exhaust; any
security held by Commission at any time or to pursue any
other right, remedy, 'power or privilege of Commission
before proceeding against Guarantor;
• Attachment No. 10
•
(b) any defense that may arise by reason of incapacity, lack of
corporate or, other authority, death or disability of
Participant, Guarantor or any other person or the failure of
Commission to file or enforce a claim against the estate (in
administration, bankruptcy or any'other proceeding) of any
other person or persons;
(c) promptness, diligence, presentment, demand, protest and
notice.of any kind including, without limitation, notice of
default, protest, dishonor or nonpayment, notice of
acceptance of this Guaranty and notice of the existence,
creation or incurring of any new or additional obligation or
notice of any action or nonaction on the part of Participant,
Commission, any endorser or creditor of Participant or
Guarantor or on the part of any other person whomsoever
under this or any other instrument in connection with any
obligation or evidence of indebtedness held by Commission
as collateral or in connection with the Obligations or any
other obligation hereby guaranteed;
(d) any right to enforce any remedy that Commission now has
or may hereafter have against,Participant, and the benefit of,
• and-any right to participate in, any.security now or hereafter
held by Commission from Participant;
(e) any duty on the part of Commission to disclose to Guarantor
any facts Commission may now or hereafter know about
Participant, it being understood and agreed that Guarantor
is fully responsible for being and keeping informed of the
financial condition of Participant and of all circumstances
bearing on the risk of nonperformance of the Obligations or
any other obligation hereby guaranteed;
(f) all`setoffs.and counterclaims;
(g) any defense.arising out of the absence, impairment or loss of
any right or remedy of Guarantor against Participant or
against any security resulting from the exercise or election of
any remedies by Commission, and any defense arising by
reason of any disability or other defense of Participant or by
reason of the cessation, from any cause; whether consensual
Or by operation of law, of the liability of Participant to
Commission other than full discharge and performance of all
of Participant's obligations under the OPA and the other
Project Documents;
•
Attachment NO. 10
5
(h) any defense of whatsoever nature on the part of Participant
which:otherwise niayhave been asserted by-Guarantor as a
defense hereunder; and
•
(i) any defense arising because of Commission/s election, in any
proceeding instituted under the federal Bankruptcy Code, of
• the application of Section 1111(b)(2) of the Federal
Bankruptcy Code.of 1978, as amended; it being agreed by
the Guarantor that this Guaranty is an absolute guaranty of
payment and performance and not of.collectibility , that-the
failure of Commission,to exercise any rights or remedies
Commission.has or may have against Participant shall in no
way impair the obligation of Guarantor and that:the liability
of Guarantor hereunder is and shall be direct and
unconditional.
Without limiting the generality of the foregoing or any other
provision hereof, Guarantor;hereby expressly waives any and all 'rights of
subrogation, reimbursement, indemnification and contribution' and any other
rights'; benefits and defenses which might-otherwise be or become:available to
Guarantor, under California Civil Code Section 1431, Sections 2787 to 2855;
inclusive, Section 2899 and Section.3433, ;or any successor sections or `any
amendments thereto, and all other suretyship defenses Guarantor would
•
otherwise have under the laws of California.
11, - Sums Received by Guarantor. If Guarantor receives payment of
any .amount on account of any subrogation, or right of indeibnificat on,
contribution or reimbursement from Participant or otherwise in respect of any
payment or performance by Guarantor of any obligations of Guarantor
hereunder at any time when all the-Participant's obligations under the Project
Documents,shall not have been paid_and°performed in full, or when;any-default
shall have occurred and be continuing, Guarantor'shall hold such amount •in-
trust for the benefit of Commission and Guarantor shall-forthwith pay the same
to Commission to be credited and applied upon Participant's obligations under
the Project Documents, whether -matured or unmatured, in such order as
Commission,,in itsgsole discretion, shall determine.
12. Claims.Against Participant;.Assignment. Guarantor shall file in
any bankruptcy or other proceedinginc which the°filing of claims is required by
law all claims which Guarantor may have against Participant relating to any
indebtedness of Participant to Guarantor and will assign to Commission all
rights of Guarantor thereunder. In all such cases, whether in administration,
bankruptcy or otherwise; the-person(s) authorized to pay such claim shall pay to
Commission the full amount-thereof and to the hill extent necessary forr' that
purpose, Guarantor-hereby assigns. to Commission-all.of Guarantor's rights to
any such payments or distributions to which Guarantor would otherwise be
•
entitled.
Attachment No..10
6
•
•
13. .Cumulative Rights. The .amount of Guarantor.'s liability and all
rights, powers, remedies and privileges of Commission hereunder and under
any other agreement now or any time hereafter in force between Commission
and•Guarantor, including any other guarantee executed by Guarantor relating to
any obligations of Participant to Commission, shall be cumulative and not
exclusive and such rights,powers, remedies and privileges shall be in addition to
all rights,powers;remedies and privileges available to Commission.
14. Miscellaneous.
•
(a) This Guaranty shall be governed by and construed in
accordance with the laws of;the!State of California, exclusive
of its laws regarding the conflict of,laws.
(b) Except as provided to the contrary herein, Guarantor waives
all presentments, demands for performance, notices of
nonperformance, protests,. notices of protest, notices of
dishonor and notices of acceptance of this Guaranty and of
the existence, citation or incurring of all or any part of the
Obligations now existing or hereafter arising.
(c) Time is of the essence hereof.
(d) Whenever possible, each provision of this Guaranty shall be
interpreted in such manner.as,to be effective and valid under
all applicable laws and regulations. If, however, any
provision of.this Guaranty is determined to be prohibited by
or invalid under any such law or regulation, it shall be
deemed modified to conform to the minimum requirements
thereof,.or,:if for any, reason it is not deemed so modified, it
shall be ineffective and invalid only to the extent of such
prohibition or invalidity without affecting the remaining
provisions of this Guaranty.
(e) Commission, upon serving Participant with any notice of
default or any other notice under the provisions of or with
.respect to the OPA•or.any other Project Document, shall also
serve a copy of such notice upon Guarantor at the address
provided immediately following the signature of Guarantor
on this Guaranty. In the event-:Participant is in default under
any Project Document, Guarantor shall have the right to
•
• remedy or cure such default, or cause the same to be cured
or remedied within the. period provided for Participant to
cure such default and otherwise as provided in the
applicable Project Document, and Commission shall accept
such performance by or at the instance of Guarantor as if the
same,had been timely made by Participant.
Attachment No. 10
7
(f) This Guarantyshall.inure, to.the benefit of.Commission, its •
successors and assigns, including the assignees of the
Obligations or of any other, obligations hereby guaranteed,
and shall bind the heirs, executors, administrators, personal
representatives, successors and assigns of Guarantor..
Comniission.:may assign this Guaranty-with respect to all or
any portion-of the Obligations or such_:other obligations and
when so assigned Guarantor shall be liableunder this
Guaranty to the assignee(s) of the. portion(S) of the .
Obligations or other obligations so assigned without in'any
manner affecting the -liability of Guarantor hereunder to
Commission-with=respect to any portion of the Obligations
or other obligations retained by Commission.. Guarantor
hereby waives notice of assignment or transfer: Guarantor
shall have no right to assign or transfer its rights and
obligations hereunder without the prior written approual of
Commission:
(g) .No provision of this Guaranty or right of.Commission
hereunder can be waived nor can Guarantor be released
from Guarantor's obligations hereunder except by a writing.
duly executed by Commission. No failure on the. part of
Commission to exercise,; and no .delay in exercising, any
right, power,.remedy'or•privilege hereunder;shall operate as
a waiver thereof, nor shall any single or partial exercise of
any such right, power, remedy or privilege preclude any
other or further exercise thereof or the exercise of any other
. right, power, remedy or privilege.
(h) When the context: and construction so require, all words
used in the singular herein shall be deemed to.have been
used.in the plural and the masculine shall include the
feminine'and neuter and vice versa. The word "person" as
used herein shall include any individual, company, firm,
association; partnership, corporation, limited liability
company, trust or other,legal entity'of any kind whatsoever:
In construing'this Guaranty„the captions' and headings of
this Guaranty are for convenience only and shall not be •
considered'a;part of this Guaranty.
(i) - So long as any obligation hereby guaranteed .remains•
unsatisfied, Guarantor will execute, acknowledge, deliver;:
file and record_ at Guarantor's expense all such further
agreements, instruments, certificates, documents and
assurances, and perform such acts, as Commission may
request to effectuate'the purposes of this Guaranty. •,
Attachment No. 10
8
•
• 15. Participant's Ability to Perform. Prior td making this Guaranty,
Guarantor has made an independent investigation of the financial condition of
Participant and the ability of Participant to• perform the obligations hereby
guaranteed. Guarantor has also received and reviewed copies of the OPA and
• the other Project Documents. Guarantor hereby waives any defense that
Guarantor may have by reason of the failure of Commission to provide
Guarantor with any information respecting the financial condition of Participant
or Participant's ability to pay or perform any of the obligations hereby
. guaranteed, and any duty on the part of Commission to obtain or disclose to
Guarantor any facts that Commission may now or hereafter know about
Participant, regardless of whether Commission has reason to believe that any
such facts materially increase the risk beyond that which Guarantor intends to
assume or has reason to believe that such facts are unknown to Guarantor or has
a reasonable opportunity to communicate such -facts to Guarantor. Guarantor
understands and agrees°that Guarantor is fullyresponsible:for being and keeping
informed of the financial condition of Participant and of all circumstances
bearing on the risk of nonperformance of any obligations hereby guaranteed.
Guarantor is not relying upon or expecting Commission to furnish any
information now or hereafter in Commission's possession concerning any matter.
An assignment of Participant's interest under the OPA shall not relieve the
Guarantor of its obligation hereunder.
• 16. Terminationof Guaranty. This Guaranty.shall terminate upon the
repayment.in full of the Promissory Note - EligibleConstruction Cost Loan and
Promissory Note - Tax Increment Loan, and the Commission shall confirm in
writing such termination upon request of the Guarantor.
IN WITNESS WHEREOF, the undersigned has executed this
Guaranty effective the day and year first above written.
,:2001 • LOK PETALUNLA MARINA DEVELOPMENT
COMPANY, LLC., a:California limited liability
company
By: LMDC, INC., a California corporation
• By:
Kirkman U Lok
President
By:
Dennis A. MacDonneil,
Secretary
"GUARANTOR"
LOK Hotel OPA-final
Attachment No. 10
9
Attachment III
Resolution Approving Amendment
To
Owner Participation Agreement
By and Between
The Petaluma Community Development Commission
And
The LOK Petaluma Marina Hotel Company, LLC
RESOLUTION:'NO.
A RESOLUTION OF THE PETALUMA COMMUNITY DEVELOPMENT COMMISSION
APPROVAL OF AMENDMENT JO THE OWNER PARTICIPATION AGREEMENT BY AND
BETWEEN THE PCDC AND THELOK PETALUMA MARINA HOTEL COMPANY, LLC.
•
A. Whereas, the Petaluma'Community Development Commission of the City of Petaluma approved
an Owner Participation Agreement with LOK Petaluma Marina Hotel Company, LLC on
December 11, 2000; and
•
B. Whereas, Section 303 of the Agreement provides for a schedule of performance for the
completion of the construction of project improvements; and
• C. Whereas, Attachment No. 4, Item 7, of the Agreement identifies both an action and date for the
completion of the construction of project improvements; and
• D. Whereas, Section 702 of the Agreement contains provisions for the Extension of Times of
Performance; and
E. Whereas, in accordance with the provisions of Section 702 of the Agreement, the LOK
Petaluma Marina Hotel Company, LLC, has requested.a six month extension of time, for the
completion of the construction of project improvements.
E. Now, Therefore Be It Resolved, that the•Petaluma Community Development Commission does
hereby approve the request for extension by the LOK Petaluma Marina Hotel Company, LLC,
as provided.in the,revised Attachment No. 4, attached hereto as Exhibit A.
•
• •
• •
I hereby certify that the foregoing Resolution No. was duly introduced.and adopted by the
Petaluma Community Development Commission at a regular;meeting held on March 5, 2001 by the following
vote:
Commissioner Aye No Absent
Thompson
Cader-Thompson
Healy
Maguire
Moynihan
O'Brien
•orliatt
E. Clark Thompson, Chairman
ATTEST:
Beverly J. Kline, Recording Secretary
•
•
02/05/01 MON 12:13 FAX 8399104 MC DONOUGE-OAKLAND fit002
E241'\.:
i' ATTACHMENT NO. 4
SCEIEDULE OF PERFORMANCE
Action Date
1. Submission -- Evidence of Equity At least 10 days prior to disbursement of
Capital and Mortgage Financing. The Eligible Construction Cost Loan.
Participant shall submit to the
Commission:for review and approval,
evidence of equity capital and a mortgage
financing commitment: necessary for
development of the Site. (Section 312)
2- Approval - Evidence of Equity Capital Within 10 days of submission.
and Mortgage, Financing. The
Commission shall approve or disapprove
the Participant's evider ce of equity capital
and a mortgage financing commitment.
(Section 312)
3. Submission - Certificates of Insurance. Prior to the commencement of construction
- The Participant shall furnish to the of the Participant's improvements on the
-- Commission duplicate ?originals or `Site-
. .,:�....
appropriate certificates of bodily injury• ' r. • a `tF ro
and property damage insurance policies-
- (Section 303) fl
4. Construction Loan Escrow Instructions. Prior to the first disbursement of the
Participant and the. Commission shall Eligible Construction Cost Loan.
have approved and executed construction
loan escrow instructions. (Section 502)
5. Governmental Permits. The Participant Prior to the commencement of construction
shall obtain any and all permits required Of the Participant's improvements on the
by the City or any other governmental Site.
agency. (Section 302)
6, Commencement of Construction of. Not later than October 31,2000.
Participant's Improvements. The
Participant shall commence construction
of the improvements to be constructed on
the Site. (Section 303)
7. Completion of Construction of Within 4„months after commencement
Participant's Improvements. The hereof by the
Participant shall complete construction of.
the improvements to be constructed on
the Site. (Section 303)
• Attachment No.4