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HomeMy Public PortalAboutC-92-002 - Avalon Courtyard, OPA 22127 S. Avalon Blvd. Amendment No.1FIRST AMENDMENT TO DISPOSITION AND DEVELOPMENT AGREEMENT THIS FIRST AMENDMENT TO DISPOSITION AND DEVELOPMENT AGREEMENT (this "First Amendment') is made and entered into as of December 7, 1993, by and between the CARSON REDEVELOPMENT AGENCY, a public body, corporate and politic (the "Agency"), and THOMAS L. SAFRAN d.b.a. THOMAS SAFRAN & ASSOCIATES, a Sole Proprietorship (the "Developer"). - RECITALS A. The Agency and the Developer are parties to a Disposition and Development Agreement dated as of July 9, 1992 (the "DDA'}). B. The Developer has applied for an allocation of tax credits (the "Tax Credit Allocation") on account of this Project from the Tax Credit Allocation Committee of the State of California, and the Developer has been approved for a Tax Credit Allocation in the sum of $9,029,190. C. In order to qualify for the Tax Credit Allocation, the Developer must first acquire fee title to the Site, and incur a minimum 10% of total project costs (vim, the sum of $1,003,300), by December 10, 1993. In order to acquire fee title to the Site by December 10, 1993, the parties must amend the DDA in certain respects. D. By receiving the Tax Credit Allocation, the Developer shall be able to raise equity capital for the Project by transferring the Site and its rights under the DDA to a limited partnership in which the Developer is the sole general partner and Mission First, a California corporation, or such other investor as may be mutually agreeable between the Agency and the Developer (the "Tax Credit Investor"), is the sole limited partner. Other partners may be admitted to the limited partnership subject to the terms and conditions set forth in the DDA. E. The Developer has also applied for a Construction Loan from Wells Fargo Bank, and for a Permanent Loan from California Community Reinvestment Corporation. The Developer has told the Agency's staff that the Developer expects both applications to be approved. Receipt of the Tax Credit Allocation will change the amounts of the Permanent Loan and the payment dates for the Agency Loan, although such figures cannot be finalized until the Developer commences construction of the Improvements and the Developer actually forms the limited partnership. NOW, THEREFORE, the parties hereto agree as foIIows: -1- 931126 jar d00.2 jar L Capitalized Terms_ All capitalized terms in this First Amendment shall have the meanings ascribed to them in the DDA. 2. Disbursement of Agency Loan. The Agency and the Developer agree that the Agency shall pay through escrow (i) the amount of the purchase price of the Site to be paid by the Agency pursuant to other agreements of the Agency relating to acquisition of the Site for the Project, (ii) the undisbursed amounts to be advanced by the Agency to the owners of the Sherry Property pursuant to that certain Loan Agreement dated September 1, 1992, to the extent required to pay in full the balance of the cost of clean-up of the Sherry Property, and (iii) certain excavation costs heretofore incurred that arose in connection with the procedure to clean up the Sherry Property in the approximate sum of $60,000.00. The Developer acknowledges that all such sums advanced by the Agency on account of the acquisition of the Site, the clean-up of any contamination of the Site, and improvement of the Site, shall tie -'considered an advance under the Agency Loan. 3. ,[codification of Condition5_R[CggdCpA. Section 23.1 of the DDA is hereby restated in full to read as follows: 23.1. editions to Funding Loan for Purchase of Site. The following condition precedent must be satisfied or waived by the Agency before the Agency shall be obligated to fund the Purchase Price and sell the Site in accordance with this Agreement. Either: (i) The Developer shall have obtained a binding commitment from a Construction Lender of the Developer's choice committing to make a Construction Loan to the Developer for construction of the Improvements, on terms and conditions acceptable to the Developer in the Developer's reasonable discretion, and approved by the Agency, provided that the Agency's approval shall not be unreasonably withheld if the Construction Loan documentation contains provisions giving the Agency the rights set forth in Subsections 6.16.2, 6.163, and 6.16.4, and if the terms and conditions are acceptable to the Developer and are consistent with the prevailing rates, fees and requirements of commercial lenders at the time the Construction Loan is made; or, (ii) The Developer shall have obtained an unconditional tax credit allocation from the Tax Credit Allocation Committee of the State of California in the sum of $9,029,190 on account of the Project. 4. Modification of Maturi1y Date of the AgencyAggngy Loan. Notwithstanding the provisions of Sections 2.4 and 2.5 of the DDA, on or before July 1, 1995, the Developer -2- 93'126 jar cI00-2jar shall make a principal prepayment towards the Agency Loan in an amount equal to at least $2;000,000.00. The Promissory Note attached to the DDA shall be modified accordingly._ 5. Modification of Completion Date and Maturity Date. (a) With respect to Section 2.4 of the DDA, the parties agree that the outside Maturity Date is changed from "January 1, 2025" to "July 1, 2025." (b) With respect to Sections 2.4 and 6.24 of the DDA, the parties agree that the outside date for issuing the Certificate of Completion shall be changed from "January 1, 1995" to "July 1, 1995." 6. Modification of Provisions Relating to Transfer of it[ . With respect to Sections 53.2 and 5.5, in order to expedite the transfer of title, the parties agree that the Agency shall direct the grant deeds to be issued through the escrows to acquire the Site to name the Developer as the grantee, without the Agency first stepping into title with respect to the Site. Therefore, the Agency shall not execute to the Developer the Grant Deed to the Site, but the relevant restrictions set forth in the Grant Deed shall be incorporated into the Regulatory Agreement. 7. lean -up Completion. With respect to Section 5.123 of the DDA, the Developer hereby waives the requirement, set forth in clause (2) of the second unnumbered paragraph of Section 5.123, that the Ddveloper receive a certificate or other evidence from governmental or quasi -governmental agencies that the Sherry Property complies with applicable environmental requirements as a condition precedent to the Sherry Property achieving "Clean -Up Completion." The Developer hereby represents and certifies to the Agency that the Sherry Property has achieved "Clean -Up Completion." S. S 'i f cti of-Conditiong-Jamcedca. The Developer hereby confirms that all conditions precedent set forth in Section 514 of the DDA are either approved or waived by the Developer, provided, however, if the Lot -Tie Agreement described in Section 43 has not been recorded, then the parties agree to use their best efforts to cause the Lot - Tie Agreement to be recorded as soon as possible hereafter. 9. Advance PayrMent of the Devrlopgr Fee. Notwithstanding the provisions of Section 6.18 of the'DDA, in consideration for the Developer having obtained the tax credit allocation and thereby reducing the total Developer Fee otherwise payable on account of the Project (as shown on Exhibit D), the parties agree that promptly following the close of escrow for the Site, the Agency shall advance to the Developer $100,000 on -3- 931126 jar c100.2 jar account of the portion of the Developer Fee that shall become due upon recordation of the Construction Loan. 10_ Construction Loan_ The Developer and the Agency agree to close escrow in accordance with Article 5 of the DDA without the Developer having first obtained a Construction Loan; provided, however, unless and until: (a) the Developer obtains and records a Construction Loan satisfactory to the Agency in an amount sufficient to finance, with the remaining proceeds of the Agency Loan, -all costs for completion of the Project, which Construction Loan shall be on terms and conditions acceptable to and approved by the Agency; and (b) the Developer obtains a commitment for a Permanent Loan on terms and conditions acceptable to and approved by the Agency, which approval shall not unreasonably be withheld if such terms and conditions are consistent with the prevailing rates, fees and requirements of commercial lenders at the time the Permanent Loan is made; the Agency shall not be required to fund any draws on the Agency Loan for the construction of the improvements constituting the Project in excess of the following-. (i) the cost for the purchase, clean up of contamination, and preliminary excavation of the Site; (ii) the sum of $821,600.00 for concrete, foundation, slab - work, and related work as set forth in more detail on Exhibit A, attached hereto and incorporated by reference herein; (iii) reimbursement in the sum of $165,405.27 on account of the balance of predevelopment costs (i.e., predevelopment costs heretofore incurred minus reimbursements previously made to the Developer), as set forth in Exhibit B, attached hereto and incorporated by reference herein; (iv) Payment by December 10, 1993, of the fee required by the State of California Tax Credit Allocation Committee on account of all projects receiving a Tax Credit Allocation, in the sum of $72,734, as shown in Exhibit C, attached hereto and incorporated by reference herein; -4- 931126 jar c106-Iju