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Home My Public Portal AboutC-92-002 - Avalon Courtyard, OPA 22127 S. Avalon Blvd. Amendment No.3THIRD AMENDMENT TO DISPOSITION AND DEVELOPMENT AGREEMENT THIS THIRD AMENDMENT TO DISPOSITION AND DEVELOPMENT ~AGREEMENT (this 'Third Amendment") is made and entered into as of November 7, 1995, by and between the CARSON REDEVELOPMENT AGENCY, a public body, corporate and politic (the "Agency"), and AVALON COURTYARD, a California limited partnership (the "Developer"). RECITALS A. The Agency and Thomas L. Safran d.b.a. Thomas Safran & Associates ("Safran"), are parties to a Disposition and Development Agreement dated as of July 9, 1992 (the "Original DDA" ) . B. The Original DDA was amended by that certain First Amendment to Disposition and Development Agreement dated as of December 7, 1993 (the "First Amendment"), and by that certain Second Amendment to Disposition and Development Agreement dated as of December 31, 1994 (the "Second Amendment"). The Original DDA, as modified by the First Amendment and the Second Amendment, is referred to herein as "the DDA." C. The Developer is the successor in interest to Safran with respect to the DDA. Safran is the sole general partner of the Developer. D. The Developer has represented to the Agency that the Developer has received an allocation of federal income tact credits from the State of Califbrnia Tax Credit Allocation Committee. In order to obtain investors to and thereby raise funds from such allocation of tax credits, the Loan must be modified to be a non-recourse loan, and other modifications are required to the DDA. E. The Developer and the Agency wish to further amend the DDA as herein provided to reflect changes necessitated by the matters described in the foregoing recitals. NOW., THEREFORE, the parties hereto agree as follows: 1. Capitalized Terms. All capitalized terms in this Third Amendment shall have the meanings ascribed to them in the Original DDA, the First Amendment and the Second Amendment. 2. Amendment of Note: Non -Recourse Provision. (a) Except as provided in subsection (b) hereof to the contrary, the Agency shall not be entitled to obtain a personal or deficiency judgment for nonpayment of the principal -1- 951107 jar X11-1.jar 01374-01000 and interest due under the promissory note dated December 8, 1993 from Safran to the Agency (the "Note"). (b) Nothing in this provision shall prejudice the right of the Augency as against the Developer or any against other entity under any policy of insurance or other agreement which the Developer or such other entity may have given the Agency that does not create personal liability on the part of the Developer for the payment of principal and interest on the Promissory Note. Moreover, notwithstanding subsection (a), above, the Developer shall be fully liable to the Agency, and the Agency shall be entitled to obtain a personal or deficiency judgment in the amount of all loss and damage suffered by the Agency (including but not limited to attorneys' fees and costs), as a result of (i) the Developer's intentional fraud or intentional misrepresentation of the Developer to the Agency, (ii) misapplication or wrongful retention of rental income -or casualty insurance or condemnation proceeds attributable to the Property, (iii) the Developer's removal of personal property or fixtures from the Property in violation of the provisions of the Deed of Trust, (iv) the commission of any act of deliberate waste with respect to the Property by the Developer, (v) any losses suffered or liability incurred as a result of the Developer's use of hazardous or toxic material or wastes on the Property or any losses suffered or liability incurred by the Agency due to the presence of hazardous or toxic material or wastes on the Property, or (vi) the Developer's failure to pay all taxes and assessments levied against the Property. 3. Positive Net Cash Flow. The definition of "Positive Net Cash Flow" set forth in Section 2.6.g of the DDA and in Section 18(h) of the Note is modified to read as follows: "Positive Net Cash Flow" shall mean the revenues (without regard to the source) derived from the operation of the Project minus (i) all real estate and personal property taxes and assessments, insurance premiums and reasonable costs of maintenance, operation and management (including without limitation the management fee provided for in Section 9.5 of the DDA) incurred by Developer in connection with the operation and maintenance of the Project, (ii) the reasonable costs of servicing all loans (other than the Agency Loan) or other sources of financing, (iii) an amount, not to exceed $27,600 per year, required to be deposited in a replacement reserve fund, which fund shall not exceed $184,000, (iv) sums required to be deposited in a operating reserve fund, which fund shall not exceed $125,000.00, and (v) the audit fee required by the Developer's partnership agreement in the sum of $7,000.00. All loans or other sources of financing shall be commercially reasonable and -2- 951107 jar 4211-1.jar 01374-01000 shall be subject to Agency's approval in accordance with this Agreement. There shall not be any duplication of deductions, i.e., if funds are disbursed from the operating or maintenance reserve fund, the disbursement shall not be deducted from net cash flow under clause (i). 4. Subordination Agreement. Notwithstanding the provisions of Section 2.8 of the DDA to the contrary, the form of the subordination attached hereto as Attachment 1 is approved by the Agency for subordination to a permanent loan from the California Community Reinvestment Corporation in the sum of $2,495,000, on the condition that all proceeds thereof are used in accordance with the Permanent Loan Closing Table attached hereto as Attachment 2 and incorporated by reference herein. 5. Permanent Loan Closing Funds. Attached hereto as Attachment 2 is a table of sources and uses of funds for the closing of the permanent loan and investment of funds from MHIFED 95 Limited Partnership, a Delaware limited partnership ("Mission"), in the Developer. The Developer covenants to obtain and/or use all funds identified thereon under the category "Sources" and to expend such funds identified under the category "Uses," including pre -payment of the Agency's Loan of $2,000,000.00 at the closing, plus an additional prepayment of $347,440.00 at the final' funding by Mission. The Agency's executive director is authorized to approve minor, non -material modifications thereto so long as the prepayments of the Agency's loan are not reduced. 6. Estopl2el Certificate. Attached hereto as Attachment 3 is a form of Estoppel Certificate and Agreement containing certifications and modifications requested by Mission. The Agency hereby approves the terms and provisions thereof. 7. Except as herein provided, the DDA, as amended by the First Amendment and the Second Amendment, and all documents executed pursuant thereto, including the Note, shall remain in full force and effect as originally written. -3- 951107 jar dZ11-1.jar 01374-01000 IN WITNESS WHEREOF, the parties have entered into this Third Amendment as of the day and year first above written. CARSON REDEVELOPMENT AGENCY, a public body, corporate and politic By: ` !L is Chai er on Attest: A.0, S Its secretaty Approved as to Form: RICHARDS, WATSON & GERSHON, a professional corporation Agency Counsel By . J /� - 94�7 �-- Je:Wtey-X. Rabin, As t. Agency Counsel _4- 951107 jar X11-1.jar 01374-01000 AVALON COURTYARD, a California limited partnership By: Thomas 1. Safran, general partner (v) Payment of the sum of $100,000 as an advance on account of the portion -of the Developer Fee that will become due upon recordation of the Construction Loan (which amount shall promptly be paid following the close of escrow); and (vi) Payment of the $1:63,998.89 in plan check fees, building permit fees, estimated fire hydrant costs, sewer connection fees, and sewer permit fee, as shown in Exhibit C. The Agency shall be required to advance or pay the amounts described above only upon presentation to the Agency of invoices or other evidence that the amounts requested are due from the Agency. 11. Except as herein provided, the DDA shall remain in full force and effect as originally written. -5- 431126 jar c100-2jar IN WITNESS WHEREOF, the parties have entered into this Agreement as of December 7, 1993. CARSON REDEVELOPMENT AGENCY, a public body, corporate and politic By;('U4' Its ChairperPon Attest: Its Secretary Approved as to Form= RICHARDS, WATSON & GERSHON, a professional corporation Agency Counsel By:��- -6- MIN jar 000-2.jar SAFRAN & Proprietorship THOMAS 3, a Sole IN WITNESS WHEREOF, the parties have entered into this Second Amendment as of December ``��jj� , 1994. CARSON REDEVELOPMENT AGENCY, a public body, corporate and politic By: &itj Its Chaff n Attest: Awt E6 Its Secretary I i'- I`1- k S Approved as to Form: RICHARDS, WATSON & GERSHON, a professional corporation Agency Counsel � I By: '4 14J." J ffey A. Rabin, Asst. Agency Counsel ..7- 941201 jar 681-1jar AVALON COURTYARD, a California limited partnership kTffc(mTsqBy: . Safrlfr5-lpartner CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of County of Lp� Pv-. � 1v'>' On No u. a -7, j 9 gs before me, - tna,a1t. P,:Nj t ,e . Fs L5:-. DATE HANE.TREEOFOPMER-E.G.'JANE WE. NOTARYPURL-C' personally appeared ISCIj, �.. t.ti _ rtir% %,'us.�-.rte MWE1S' OFSIGNER[5i personally known to me OR - ❑ proved to me on the basis of satisfactory evidence to be the perso,n(s) whose name(s) islare subscribed to the within instrument and ac- knowledged to me that he/she/they executed rx,JEAN MAK PALERMO the same in his/her/their authorized ccuh&lt022t32 capacity(ies), and that by his/her/their -s Notary Pub1c — Callfomlo LOS ANG8Z COUIM signature(s) on the instrument the person(s), Comm. Eq*es MAY 20.1998 or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hared and official seal. SIGNATURE OF NOTARY OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form - CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL ❑ CORPORATE OFFICER TM.E1S1 ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY--IN-FACT ❑ TRUSTEE(S) ❑ GUARDIANICONSERVATOR 19OTHER'-D-k t rk rs SIGNER IS REPRESENTING: NA1.1E OF FEASCNiSi OR ENTITY(IES) u 0. TITLE OR TYPE OF DOCUMENT r NUMBER OF PAGES DATE OF DOCUMENT H�tEr-. Kau�i�a� SIGNER(S) OTHER THAN NAMED ABOVE 1493 NATIONAL NOTARY ASSOCIA-'OP! • 8236 Remmet Ave.. P 0 @ex 7184 • Canoga Park. CA 91369-7164 NOU 24 '93 12:01 ROM THOMAS SAFRAN ASSOC. PAGE.005 EXHIT"T A isiixxiiLY�x�ix ALPHA CnNSTRUCTION CO. INC, CARSON ELDERLY HOUSING NOVEMBER 19, DESCRIPTION GARAGE AND SLAB 1993 -- t. NECESSSSARYETHROUGHRTHE POURINGOF- 420,000 _ STRUCTURAL AND BUILDING SLABS 2. INSTALLATION OF_FOUNDATION _GRAINLINES----------8,500_ 3. STRUCTURAL MASONRY'WALLS FOR THE-� -- 65,000 PARKING STRUCTURE 4 BACKFILL MASONRY-MALLS --'---�—`___ 5. UNDERGROUND PLUMBING ANTI DRAINAGE 72,008 AND 8LEAVING STRUCTURAL DECK E. ELECTRICAL UNDERGOUHD AND METER FFORREPOURING OFADECK NECESSARY T. FORM LUMBER FOR FOOTINQS AHD 60,000 STRUCTURAL DECK S. GENERAL ~CONDlTION3 INCLUDING FACILI IES 'TEM�YSOTILIITTOIERASRY CLEAN-UP AID GEN L LABOR 750,080^ 8% OVERHEAD & PROFIT-----------�--—`------- 60080 _ !_^ __--_------__------_.»_....._—_ __..__�--�_� SUBTOTAL 810,000 BOND - ------------ ----------------- 11, 600 TOTAL — 821,600 NOV 30 '93 17:51 )M THOMAS SAFRAN ASSOC. Carson Sen [or Housing Davebper Fee 113 at start of Construction 113 monthly during Construction based on percentage of completion 1/3 (less 10% Of total developer fee) at C of O 10% retention at permanent loan finding Total Developer fee EXHIBIT D PAGE_006 With Without Tax Credits Tax Credits 333,333 219,385 333,333 219,385 233,334 163,569 100,000 65,815 1.000-000 664.154 yl�h{� � `S� I�:�ti FFtUTi INUMHS SF;i-KHrI HSS:JI.. EXHIBIT C CARSON SENIOR HOUSING FEE SCHEDULE Fees described in Amendment to DDA -- !feta 10.(b).(vo Description of Fee i- Additional Plan Check Fees baud on $S,W8,poo value 2 Building Permit Fees 3. Fire Hydrant Coats (estimated) 4. Saw Connection Fees ($810JUnit) 5. Sewer Permit TOTAL FEES PAYABLE: Tax Credit Fees -- descnbed in item I0.(byrrv) Performance Deposit (4% of 1 at yrs. allocation) Reservation Fee (4% of 1st yrs, agocation) NHIaE . L-I4a i Amount $19,060.80 $53,314.29 V 7,O04Oo $74,520.00 $Ba8fl $163,998.88 $36,117.00 $36,117.00 **, TOTAL PAGE . afl3 *f, DEC 3 ' 33 i 21 cS FR3M 7HOMq` SAFRRN ASSr�C. PAGE -002 EXHIBIT B D&W PMFMmd CO -Deo -93 CARSON SENIOR PFJOJECT ExhlbR W Soft Cosh As of Novernber 8,1993 A. ARCHITECTURE/ENGINEERING COST' 12. Design 5217,343.32 13. Erig€nearing 8,811.40 1 S. Printing. Reirnbumables, etc. 882.54 S. GOVERNMENT FEES 16. plan Check Fees (mitral fees paid) 25,619-95 21. Other Fees 8,753.82 C. FINANCING COSTS 23. TCAC Fee*03 is (applk tkx on&) 2,137.85 D. OTHER SOFT COSTS 31. L09W Few 38,31825 33. Rent–up/MarWng Expww s 26.5.42 43. Misoalianeoua 1,006.43 E LANDIPREGEVELOPMENT COSTS 46. Other Land Costs 19,060.75 47. Surrey 4,000.00 Total Soft Costs 328^3ff.-74 Amounts previously advanced by to Agency: 24--Sep-93 ($100.000.00) 02 -Nov -93 (SW.M4,47) 160,924.4 Net Soft Costs fj65,4Q427 (F,R5 -) FOURTH AMENDMENT TO DISPOSITION AND DEVELOPMENT AGREEMENT THIS FOURTH AMENDMENT TO DISPOSITION AND DEVELOPMENT AGREEMENT (this "Fourth Amendment") is made and entered into as of November 19, 3996, by and between the CARSON REDEVELOPMENT AGENCY, a public body, corporate and politic (the "Agency"), and AVALON COURTYARD, a California limited partnership (the "Developer"). RECITALS A. The Agency and Thomas L. Safran d.b.a. Thomas Safran & Associates ("Safran"), are parties to a Disposition and Development Agreement dated as of July 9, 1992 (the "Original DDA"). B. The Original DDA was amended by that certain First Amendment to Disposition and Development Agreement dated as of December 7, 1993 (the "First Amendment"), by that certain Second Amendment to Disposition and Development Agreement dated as of December 31, 1994 (the "Second Amendment"), and by that certain Third Amendment to Disposition and Development Agreement dated as of November 7, 1995. The Original DDA, as modified by the First Amendment, the Second Amendment, and the Third Amendment, are referred to herein as "the DDA." C. The Developer is the successor in interest to Safran with respect to the DDA. D. The Developer and the Agency wish to further amend the DDA as herein provided to reflect changes necessitated by the matters described in the foregoing recitals. NOW, THEREFORE, the parties hereto agree as follows: 1. Capitalized Terms. All capitalized terms in this Fourth Amendment shall have the meanings ascribed to them in the Original DDA and the First Amendment. 2. ftlacement of References to "Housing Committee" . The DDA referred to the Housing Committee of the Human Relations Commission of the City of Carson (the "Housing Committee"), which was never formed by the City. Accordingly, the Executive Director of the Agency shall perform the duties ascribed in the DDA to the Housing Committee. Therefore, all references in the DDA to the term "Housing Committee," including, without limitation, the references in Sections 8.2.6, 8.5, and 9.2 of the DDA, are hereby replaced by the term "Executive Director of the Agency." 3. Except 'as herein provided, the DDA (as amended by the First Amendment and the Second Amendment) shall remain in full force and effect as originally written. —1- 961009 Sar d913 -jar 01374-00001 IN WITNESS WHEREOF, the parties have entered into this Fourth Amendment as of the day and year first above written. CARSON REDEVELOPMENT AGENCY, AVALON COURTYARD, a a public body, limited partnership corporate and politic 1-� . — . • By By. — , , 4� , Its Chairpelbon Attest: Its Secretary Approved as to Form: RICHARDS, WATSON & GERSHON, a professional corporation Agency Counsel By: Jeff0ey A. kabin, Asst. Agency Counsel -2- 961009 jar d913.jar c1314-00091 1. partner