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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-