HomeMy WebLinkAboutRES NO 140-86090486
COUNCIL RESOLUTION NO. 140-86
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
BAKERSFIELD APPROVING TECHNICAL CORRECTIONS
TO THE AMENDED AND RESTATED DISPOSITION AND
DEVELOPMENT AGREEMENT BETWEEN THE BAKERSFIELD
REDEVELOPMENT AGENCY AND BAKERSFIELD
CONVENTION CENTER HOTEL ASSOCIATES, LTD.
WHEREAS, tlhe Bakersfield Redevelopment Agency (the
"Agency") is carrying out the Redevelopment Plan (the "Rede-
velopment Plan") for the Bakersfield Downtown Redevelopment
Project (the "Project"); and
WHEREAS, in
the City Council
on July 2,'1986,
("Resolution No.
implementation of the Redevelopment Plan,
of the City of Bakersfield (the "Council"),
by Council Resolution No. 93-86
93-86"), approved and authorized the
execution of an Amended and Restated Disposition and
Development Agreement (the "Amended DDA") by and between the
Agency and Bakersfield Convention Center Hotel Associates,
Ltd. (the "Developer") for the ].ease and development of
certain real property within the boundaries of the Project;
and
WHEREAS, the Agency and the Developer have agreed that
certain minor, technical, nonsubstantive corrections should
be incorporated into the Amended DDA; and
WHEREAS, such corrections do not substantially change
the provisions of the Amended DDA as previously approved;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF
BAKERSFIELD DOES HEREBY RESOLVE AS FOLLOWS:
Section 1. The Council hereby approves the technical
corrections to the Amended DDA attached hereto as Attachment
No. 1 and incorporated herein by reference.
Section 2. The Council hereby authorizes the execution
by the Agency of the Amended DDA as approved by the Council
in Resolution No. 93-86, with said technical corrections.
I HEREBY CERTIFY that the foregoing Resolution was
passed and adopted by the Council of the City of Bakersfield
at a regular meeting thereof held on the 24th day of September
1986, by the following vote:
CITY CLERK and Ex Officio Clerk of the
Council of the City of Bakersfield
APPROVED this 2_t]~ day of September,
MAYOR of the City or'BaKersfield
1986
APPROVED as to form:
CI~TY~T~OR~E~'/o~ the C~ty of Bakersfield
ATTACHMENT NO. 1
List of Technical Corrections
The Amended and Restated Disposition and Development
Agreement between the Bakersfield Redevelopment Agency and
Bakersfield Convention Center Hotel Associates, Ltd., as
approved on July 2, 1986, by the Bakersfield Redevelopment
Agency and the City Council of the City of Bakersfield, to
incorporate the following corrections:
1. Attachment No. 5, page 10, paragraph (e), line 8:
"$3.1 million" should be changed to read "$6.2 million."
2. Attachment No. 5, page 10, paragraph (e), line 10:
"$2.25 million" should be changed to read "$4.5 million."
3. Attachment No. 5, page 41, Section 44, line 2:
The word "Percentage" should be deleted.
4. Attachment No. 5, page 41, Section 44, line 3:
"Paragraph 9(e)" should be changed to read "Paragraph 9."
5. Attachment No. 5, page 42, Section 44: The entire
item "(g)" should be deleted.
6. Attachment No. 7, "Repayment Agreement," should be
replaced in its entirety with the new Attachment No. 7,
"Purchase Agreement," attached hereto as Exhibit A and
incorporated herein by reference.
7. Table of Contents, page iv: Attachment No. 7,
"Repayment Agreement," should be changed to read "Purchase
Agreement."
Attachment No. 1
EXHIBIT A
ATTACHMENT NO. 7
PURCHASE AGREEMENT
THIS AGREEMENT is entered into this day of
, 1986, by and between the BAKERSFIELD
REDEVELOPMENT AGENCY (herein the "Agency") and BAKERSFIELD
CONVENTION CENTER HOTEL ASSOCIATES, LTD., (herein
"Developer").
RECITALS
A. By. 9rdinance No. 2033, adopted August 14, 1972,
as amended by Ordinance No. 2216 on November 25, 1974, by
Ordinance No. 2291, New Series, on August 30, 1976, and by
Ordinance No. 2539, New Series, on December 12, 1979, the
City Council of the City of Bakersfield (herein the "City")
approved and adopted a certain Redevelopment Plan (herein
the "Redevelopment Plan") for the Bakersfield Downtown
Redevelopment Project (herein the "Project").
B. Pursuant to the Community Redevelopment Law of
the State of California (Section 33000 et seq. of the
Health and Safety Code), the Agency is carrying out the
Redevelopment Plan for the Project, and has entered into an
Amended and Restated Disposition and Development Agreement
dated , 1986 (herein the "DDA") with Devel-
oper, pursuant to which Developer will lease land in the
Project from the Agency and develop a convention center
hotel and parking (herein the "Hotel") thereon.
C. Pursuant to the DDA, Developer will hlso sublease
land in the Project from the Agency and finance, construct,
operate and maintain a banquet/ballroom facility and vari-
ous meeting rooms (herein, collectively, the "Public
Improvements") in accordance with the terms of the Public
Improvements Parcel Sublease (Attachment No. 6 to the
DDA). Developer shall operate the Public Improvements on a
nonexclusive basis for members of the general public. Pur-
suant to the DDA and this Agreement, the Agency will repay
Developer for the construction costs of the Public Improve-
ments, subject to the limitations set forth in the DDA and
this Purchase Agreement (herein, "Agreement").
Attachment No. 1
Exhibit A
D. Pursuant to the Community Redevelopment Law, the
Agency is authorized, with the consent of the City Council
of the City, to pay all or part of the value of the land
for and the cost of the installation and construction of
any building, facility, structure or other improvements
which are publicly owned either within or without the
Project Area, upon a determination by the City Council that
such buildings, facilities, structures or other improve-
ments are of benefit to the Project Area and that no other
reasonable means of financing such buildings; facilities,
structures or other improvements are available to the com-
munity. The Agency and the City have heretofore given and
made, and hereby reaffirm and declare such consents and
determinations with respect to the improvements and public
facilities to serve the Project, including the Public
Improvements.
E. Under provisions of the DDA, the Developer has
agreed to secure from Aircoa Holding Co., Inc., a Colorado
corporation affiliated with the Developer, a Completion
Guaranty Agreement (the "Completion Guaranty") in favor of
the Agency and acceptable in form and content to the Agency.
F. Under the provisions of Section 16 of Article XVI
of the California Constitution and Section 33670 of the
Health and Safety Code, the Agency receives increases in
property tax revenues from within the Project which are
referred to herein as "Tax Allocation Revenues."
G. Agency Resolution No. RA 5-83, adopted on
April 13, 1983" (the "Bond Resolution"), authorized the
issuance of the "Downtown Bakersfield Redevelopment Project
Tax Allocation Bonds, 1983" (the "Bonds") in the original
amount of SIX MILLION ONE HUNDRED THIRTY THOUSAND DOLLARS
($6,130,000). Under provisions of the Bond Resglution, the
Agency's Bond repayment obligations have a priority claim
upon the Agency's Tax Allocation Revenues.
AGREEMENTS
NOW, THEREFORE, THE AGENCY AND THE DEVELOPER HEREBY
AGREE AS FOLLOWS:
1. In consideration of the undertakings of the par-
ties cited above, the Agency shall pay to Developer the sum
of TWO MILLION DOLLARS ($2,000,000), with interest thereon
until paid in full, computed at the American National Bank
Commercial Loan Index Rate plus 1.0% to be adjusted as the
rate changes from time to time; provided, that the ceiling
rate shall be 15.0% (said undertaking of the Agency to be
termed herein, the "Obligation"). Interest shall commence
-2-
to accrue at such time that Developer or its lender shall
deposit the sum of TWO MILLION DOLLARS ($2,000,000) in an
account at the Mercury Savings and Loan Association for use
in the financing and construction of the Public Improve-
ments (the "date of advance"). Said principal and interest
to be paid in semi-annual installments of ONE HUNDRED
SEVENTY-FIVE THOUSAND DOLLARS ($175,000.00) on May 1st, and
January 1st of each year hereafter, commencing on May 1,
1987 or on the date one hundred and eighty (180) days after
the advance of funds as provided herein, whichever shall be
later. Said principal, and all accrued interest thereon,
shall be due and payable in full on May 1, 1997; provided,
that Agency's obligation to complete payment of accrued
principal and interest on the Obligation by such date shall
be subject to the availability of sufficient Tax Allocation
Revenues from the Project, which revenues shall be surplus
to any amounts required to discharge Agency's obligations
respecting th~ Bonds, as such obligations are set forth in
Paragraph 2 of this Agreement. Provided, further, that in
the event Agency's payment obligations under this Agreement
are not discharged in full on or before May 1, 1997, Devel-
oper or its lender-assignee shall have a first priority
claim upon all such Tax Allocation Revenues available to
the Agency, subject only to Agency's obligations respecting
the Bonds, until all principal and accrued interest on the
Obligation are paid in full.
2. Developer or Developer's lender-assignee shall
have the right to accelerate and demand payment of the
Obligation in full in the event any such semi-annual
payments shall be in default for more than thirty (30) days
following the due date thereof, and the Bonds then out-
standing shall have been duly declared to be fully dueand
payable by reason of default under the terms of the Bond
Resolution; provided that such accelerated payment(s) of
principal and interest shall be payable solely'from Tax
Allocation Revenues. (In the event Agency shall be in
default hereunder for more than 30 days, but the Bonds have
not been declared to be fully due and payable by reason of
default, Developer or Developer's lender-assignee shall
only have the right to cure the Agency's default hereunder
from the first Tax Allocation Revenues available after the
required payments on the Bonds.)
3. In order to accomplish the payment of the Obliga-
tion as provided herein, the Agency hereby irrevocably
pledges on a first priority basis to Developer, or Devel-
oper's lender-assignee, the first Tax Allocation Revenues
available to the Agency from the Project which, for the pur-
poses of this Agreement, shall be deemed to include inter-
governmental revenues attributable to business inventory
tax subventions, subject only to the Agency's prior pledges
-3-
for payment of the Bonds. Other than to secure payment of
the Bonds, Agency represents and warrants to Developer, and
the Developer's lender-assignee, that there are not and
will not be, any other prior pledges, liens, encumbrances,
allocations, or assignments of the Agency's Tax Allocation
Revenues and that all other debts, obligations and liabili-
ties of the Agency are and shall be subordinate and junior
to the above-mentioned Obligation and assignment, including,
but not limited to, so-called "Parity Bonds" described in
the Bond Resolution. Further, the Agency hereby warrants
to Developer and Developer's lender-assignee that during
the 20 years beginning upon execution of this Agreement,
the annual principal and interest debt service required for
said $6,130,000.00 Bond issue shall never exceed the maximum
sum of $654,400.00. It is the understanding and agreement
of the parties that the representations and warranties con-
tained in this Paragraph 3 shall not impair the Agency's
bond refinanc~ or redemption rights as set forth in the
Bond Resolution, subject to the condition that Agency's
exercise of such refinance or redemption rights shall not
create a claim on Agency's Tax Allocation Revenues in excess
of $654,400 annually which shall be senior to the rights of
the Developer and its lender assignee as set forth in this
Agreement. It is the further understanding and agreement
of the parties, which agreement shall be binding upon their
successors and assigns, that the pledge of the Agency as
set forth in this Paragraph 3 shall be the sole security
for the undertaking of the Agency hereunder.
4. This Agreement does not constitute a debt of the
City of Bakersfield or any other public agency except the
Agency, and the City of Bakersfield has no obligation for
said debt. This Agreement constitutes an indebtedness of
the Agency incurred in carrying out the Project and a
pledging of the Tax Allocation Revenues from the Project to
repay such indebtedness under the provisions of Section 16
of Article XVI of the California Constitution and Sec-
tions 33670-33678 of the Health and Safety Code.
5. The Agency shall have the right to repay, at any
time and from time to time, all or any portion of the prin-
cipal and accrued interest of this Agreement without any
premium or penalty.
6. This is a non-negotiable Agreement. Without the
consent of the Agency, this Agreement may not be assigned,
except to the lender or other entity providing the funds to
the Developer for the development of the Public Improve-
ments. Any unauthorized assignment or transfer shall, at
the option of the Agency, be considered void and of no
force and effect.
¸--4--
7. The Agency hereby waives in favor of the Devel-
oper's lender-assignee any and all possible defenses,
claims, offsets or deductions which the Agency might have
the right to assert against the Developer for non-
performance under any agreement between the Agency and the
Developer or otherwise. In this regard, the Agency acknow-
ledges and understands that Developer's lender-assignee
would not lend or otherwise provide funds to the Developer
to develop said Public Improvements but for the foregoing
waiver.
8. This Agreement and the Agency's obligations here-
under shall terminate upon the repayment of the amount due
under this Agreement. A condition to the Agency's obliga-
tion to make final payment under terms of this Agreement
shall be the execution by Developer and its lender-assignee
of a valid and binding Release of Claims Agreement in favor
of the Agency and satisfactory in form to the Agency.
9. In the event of any litigation, including any
type of proceeding arising under Title 11 of United States
Code (the Bankruptcy Code) regarding this Agreement, the
prevailing party shall be entitled to collect reasonable
attorneys' fees from the other party.
10. This Agreement shall not create any personal
obligation or liability on the part of any Agency member~
officer or employee.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed and attested by their proper
officers thereunto duly authorized and their official seals
to be hereto affixed, as of the day and year first above
written.
BAKERSFIELD REDEVELOPMENT AGENCY
By:
By:
"AGENCY"
-AND-
-5-
BAKERSFIELD CONVENTION CENTER
HOTEL ASSOCIATES, LTD.,
a Colorado General Partnership
AIRCOA EQUITY INTERESTS, INC.,
a Colorado corporation,
General Partner
By:
BAKERSFIELD HERITAGE HOTEL
ASSOCIATES, LTD., a California
limited partnership,
General Partner
By:
"DEVELOPER"
-6-