HomeMy WebLinkAbout2007 CON CDC Constellation Property Group - Centro Redevelopment ProjectNOTE TO FILE
04-20-10
IN THE MATTER OF: Resolution of the CDC authorizing the
Chairman to execute a three year market rate (10%) Loan
Agreement for up to $2.6 million with the Constellation
Property Group for the Centro Redevelopment Project on
National City Blvd. Please note the following:
A FULLY EXECUTED ORIGINAL AGREEMENT WAS NEVER
FILED WITH THE OFFICE OF THE CITY CLERK
ORIGINATING DEPARTMENT: X CDC Housing & Grants
_ City Attorney _ Human Resources
City Manager _ MIS
_ Community Svcs. _ Planning
_ Engineering _ Police
Finance Public Works
Fire
• 09-11-07 — Followed up with Pat Beard with CDC. Per Pat, agreement is still being
drafted by legal counsel
• 12-03-07— Requested Colby Young with CDC to follow up
NTF
Attachment 1
TERM SHEET
Proposed $2.6 Million Loan
from CDC to Constellation Property Group (NatCity 12th) LP
Loan Amount: Not to exceed $2,600,000.
Interest Rate: Ten percent (10%) per annum non -compounded.
Security: Second Deed of Trust on the Centro project (subordinate only to the
approximate $5,700,000 First Deed of Trust to UCB on a new construction
loan Deed of Trust on the Centro Project in the approximate amount of
$21,000,000), plus personal guaranty from Eugene Marchese.
Use of
Loan Proceeds: Assemble properties to construct the Centro condominium project — a 91,199
square foot, four story condominium project housing 61 residential units and
108 parking spaces, not to exceed 50 feet in height.
Conditions to 1. Transfer of Centro project property from Constellation Property Group
Loan Closing: (NatCity 12th) to Constellation Property Group (A Avenue) LP on or
before the closing of the loan.
2. ALTA lenders title insurance policy in favor of CDC insuring second
priority position of CDC Deed of Trust subject only to UCB loan on
new construction loan on Centro Project.
3. Approval by CDC of construction lender and construction loan terms
and provisions for Centro Project.
4. Approval by CDC of general contractor and agreement between
Constellation Property Group (A Avenue) LP and general contractor
for construction of Centro Project.
5. Constellation indemnifies the City and the CDC from any liability
arising from the transaction, and that Constellation provide a policy of
Commercial General Liability insurance in the amount of $2 Million,
with the City, the CDC, and their officers and employees as additional
insureds.
Repayment
Terms: Loan would be repaid from Centro project profit/cash flow subject only to
payments to Centro construction lender and prior to any distribution to
Constellation Property Group (A Avenue) LP. In any event, the loan would be
all due and payable no later than three years from initial funding.
Needed
Documents: 1. Preliminary Title Reports on Centro.
2. Loan Agreement.
3. Promissory Note.
4. Second Deed of Trust.
5. Guaranty.
6. Insurance certificate.
Executed in'Duplicate Original
i I.ART. II}Er)
MULTIPLE OBLIGEE RIDER -PRIME CONTRACT BOND(S)
To Be Attached To And Become A Part of Bond No. 72BCSEW1925
RIDER TO PERFORMANCE BOND: ADDITIONAL OBLIGEE (S)
Whereas, on or about the 28th day of November , 20 07 ,Legacy Building Services, Inc, as Contractor,
entered into a written agreement with Constellation Properly Group (A Aven��)Owner, for the construction of
LP, a Delaware limited partnership '
Centro Condos, 12th & A, National City, California herein referred to as Contract; and
Whereas, Contractor, as Principal, and Hartford Fire Insurance Company , as Surety, made, executed and
delivered to Owner, as Obligee, hereafter called Obligee Owner, their Performance Bond: and
Community Development Commission of the City of National City.
Whereas, Obligee Owner has requested that ("Credit Facility Provider") , having material
interest in the performance of said Contract, be added as Obligee(s) to said Bond and has requested that
Principal and Surety join with Obligee Owner in the execution and delivery of this Rider, Principal and
Surety agree to do so upon the conditions herein stated.
Now, therefore, in consideration of the premium charged for said Bond and other good and valuable
consideration, receipt of which is hereby acknowledged, the undersigned agrees that
Community Development Commission be added to said Bond as Obligee(s), hereafter called Obligee(s) and that
r the Cy f Nati nal Clt
�urery st%tat Pta t ttry to Obligee Owner and Obligee(s), jointly and severally, is limited in the aggregate
to the penal sum of said Bond.
The purpose of this Rider is to extend to Obligee(s) the Surety's guarantee of performance under said
Bond of the Contract between Principal and Obligee Owner; therefore, damages recoverable by any
Obligee hereunder are expressly limited in character and amount to those damages which have been
sustained and which are recoverable by Obligee Owner against Surety under the law of the jurisdiction in
which the Contract is to be performed. Further, in no event shall any Obligee have rights under this Rider
which exceed those of Obligee Owner.
As a condition precedent to the exercise of any rights hereunder by any Obligee, Principal must be, and be
declared by Obligee Owner or one of the Obligees to be in default under the Contract, and shall have had
its right to complete the Contract formally terminated, Obligee Owner and Obligee(s) each having
performed all of their obligations thereunder.
Surety may at its option make any payments under this Bond jointly to Obligee Owner and Obligee(s).
Further, Surety shall have no liability under this Bond to Obligee Owner or Obligee(s), jointly or
severally, unless Obligee Owner or Obligee(s); or any of them, (I) shall have made payments to Principal
and each shall have performed all of it's other obligations to Principal, in accordance with the terms of the
Contract; and (2) in the event Surety arranges for completion of the Contract upon the default of
Principal, shall make payments and perform all other obligations under the Contract to Surety.
No right of action shall accrue under this Rider to or for use of any person, corporation or entity other
than Obligee Owner and Obligec(s) named herein their heirs, executors, administrators or successors.
APP2965 9/28/05 1 of 2
LABOR AND MATERIAL PAYMENT BOND: ADDITIONAL OBLIGEE(S)
In the event a Labor and Material Payment Bond has been issued by Surety in connection with the
Contract, the Obligee(s) named under "Performance Bond" above shall by this Rider be added as named
Obligee(s) on said Labor and Material Payment Bond. Said Labor and Material Payment Bond shall in
other respects remain unchanged.
Signed and seal this 19th day of December , 20 07
Legacy Building Services, Inc.
(Principal)
By: i1 ' /ka
(Signature)
il.:ar,n IC)ktVectl- `J.r at-Yk
(Name and _itle)
Witness:
Witness:
1•\
(Seal)
(Seal)
Hartford Fire Insurance Company
(Surety)
*Attach Pof Attorney
James R. Sommerville, Attorney -in -Fact
(Name and Title)
OBLIGEE ACKNOWLEDGMENT
Constellation Property Group (A Avenue), LP(Seal)
a Delaware limited partnership
(Obligee Owner)
Witness: By:
(Signature)
(Name and Title)
APP2965-9/28/05 2 of 2
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
cr rr rurcr� czz c r�srrcr . .c sine-.... :..fr .cre .... w,;•: cus�c r seed r r--
State of California
County of San Diego
On JAN 0 4 2008 before me,
Data
personally appeared
}
Penny E. Kelley, Notary Public
James R. Sommerville
Here Insert Name and Title of the Officer
Name(s) of Signer(s)
ugfteaftguagnoi
PENNY E. KELLEY
COlv1M. #1535728
NOTARY PUBLIC-CALIFORNIA m
SAN DIEGO COUNTY d
My Commission Expires
DECEMBER 26, 2008
Place Notary Seal Above
who proved to me on the basis of satisfactory evidence to
be the person%) whose name(s) is/atkt subscribed to the
within instrument and acknowledged to me that
he/§0011* executed the same in his/)Ia( Plial authorized
capacity(104), and that by his)p' signature%) on the
instrument the person $), or the entity upon behalf of
which the person(x) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph is
true and correct.
WITNESS my hared a d official seal.
Signature
OPTIONAL
Signature o y'[' ary Public
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Individual
El Corporate Officer —Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
El Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
RIGHT THUMBPRINT
OF SIGNER
Top of thumb here
Signer's Name:
❑ Individual
❑ Corporate Officer —Title(s):
❑ Partner — ❑ Limited 0 General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
RIGHT THUMBPRINT
OF SIGNER
Top of thumb here
<02007 National Notary Assodallon• 9350 De Soto Ave., P.O. Box 2402 • Chatsworth. CA 91313.2402 •xww.Nallonallotery.org Item t5007 Reorder Call Top -Free 1-800-876-6827
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS THAT:
LX
r
X I Hartford Fire Insurance Company, a corporation duly organized under the laws of the State of Connecticut
Hartford Casualty Insurance Company, a corporation duly organized under the laws of the State of Indiana
Hartford Accident and Indemnity Company, a corporation duly organized under the laws of the State of Connecticut
Hartford Underwriters insurance Company, a corporation duly organized under the laws of the State of Connecticut
Twin City Fire Insurance Company, a corporation duly organized under the laws of the State of Indiana
Hartford Insurance Company of Illinois, a corporation duly organized under the laws of the State of Illinois
Hartford Insurance Company of the Midwest, a corporation duly organized under the laws of the State of Indiana
Hartford Insurance Company of the Southeast, a corporation duly organized under the laws of the State of Florida
I -
having their home office in Hartford, Connecticut, (hereinafter collectively referred to as the "Companies") do hereby make, constitute and appoint,
up to the amount of unlimited:
James R. Sommerville, Lawrence F. McMahon, James Baldassare, Jr., Penny E. Kelley, Christine A. Paterson
of
San Diego, CA
their true and lawful Attorney(s)-in-Fact, each in their separate capacity if more than one is named above, to sign its name as surely(ies) only as
delineated above by ®, and to execute, seal and acknowledge any and all bonds, undertakings, contracts and other written instruments in the
nature thereof, on behalf of the Companies in their business of guaranteeing the fidelity of persons, guaranteeing the performance of contracts and
executing or guaranteeing bonds and undertakings required or permitted in any actions or proceedings allowed by law.
In Witness Whereof, and as authorized by a Resolution of the Board of Directors of the Companies on July 21, 2003 the Companies
have caused these presents to be signed by its Assistant Vice President and its corporate seals to be hereto affixed, duly attested by its Assistant
Secretary. Further, pursuant to Resolution of the Board of Directors of the Companies, the Companies hereby unambiguously affirm that they are
and will be bound by any mechanically applied signatures applied to this Power of Attorney.
ot.
Paul A. Bergenholtz, Assistant Secretary
STATE OF CONNECTICUT
ss. Hartford
COUNTY OF HARTFORD )))
Direct Inquiries/Claims to:
THE HARTFORD
BOND, T-4
P.O. BOX 2103, 690 ASYLUM AVENUE
HARTFORD, CONNECTICUT 06115
call 888-266-3488 or fax: 860.757.5835
Agency Code: 72.160200
David T. Akers, Assistant Vice President
On this 4th day of August, 2004, before me personally came David T. Akers, to me known, who being by me duly sworn, did depose and
say: that he resides in the County of Hampden, Commonwealth of Massachusetts; that he is the Assistant Vice President of the Companies, the
corporations described In and which executed the above instrument; that he knows the seals of the said corporations; that the seals affixed to the
said Instrument are such corporate seals; that they were so affixed by authority of the Boards of Directors of said corporations and that he signed
his name thereto by like authority.
Scott E. Paseka
Notary Public
My Commission Expires October 31, 2007
I, the undersigned, Assistant Vice President of the Companies, DO HEREBY CERTIFY that the above and foregoing is a true and correct
Xipy of the Power of Attorney executed by said Companies, which Is still In full force effective as of December 19th 2007
Signed and sealed at the City of Hartford.
CERTIfICATE
)A 200S
Gary W. Stumper, Assistant Vice President
Executed in Duplicate Original
Bond Number: 72BCSEW1925
Premium included in premium
charged for performance Bond
Labor and Material Payment Bond
KNOW ALL MEN BY THESE PRESENTS: that
as Principal, hereinafter called Principal, and,
(Here insert full name and address or legal title of Contractorl
Legacy Building Services, Inc.
2505 Congress Street
San Diego, CA 92110
(Here insert full name and address or legal title of Surety)
Hartford Fire Insurance Company
One Pointe Drive, Suite 220
as Surety, hereinafter called Surety, are held and firmly bound uBnto'CA 92821
(Here insert full name and address or legal title of Owner)
Constellation Property Group (A Avenue), LP
a Delaware limited Partnership
1133 Columbia Street, suite 101, ga , Die o, CA 92101
as Obligee. hereinafter called Owner, for the use and benefit of claimants as hereinbelow defined; in the
amount of Sixteen Million Four Hundred Eighty Thousand and NO/100
(Here Insert a suns equal to at least one-half of the contract price) Dollars f$16,480,000.00 ),
for the payment whereof Principal and Surety bind themselves, their heirs, executors, administrators,
successors and assigns, jointly and severally, firmly by these presents.
WHEREAS,
Principal has by written agreement dated November 28th
Ig2007 entered into a contract with Owner for
in accordance with Drawings and Specifications prepared by
Centro Condos
12th & A
National City, CA
(Here insert full name end address or legal title of Architect)
BOKA Powell
John Orfield
8070 Park Lane, Suite 300, Dallax, TX 75231
which contract is by reference made a part hereof, and is hereinafter referred to as the Contract.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION is such that, if Principal shall promptly make payment to all
claimants as hereinafter defined, for all labor and material used or reasonably required for use in the performance of the
Contract, then this obligation shall be void; otherwise it shall remain in full force and effect, subject, however, to the fol-
lowing conditions:
1. A claimant is defined as one having a direct con-
tract with the Principal or with a Subcontractor of the
Principal for labor, material, or both, used or reasonably
required for use in the performance of the Contract,
labor and material being construed to include that part of
water, gas, power, light, heat, oil, gasoline, telephone
service or rental of equipment directly applicable to the
Contract.
2. The above named Principal and Surety hereby
jointly and severally agree with the Owner that every
claimant as herein defined, who has not been paid in
full before the expiration of a period of ninety 190)
days after the date on which the last of such claimant's
work or labor was done or performed, or materials were
furnished by such claimant, may sue on this bond for
the use of such claimant, prosecute the suit to final
judgment for such sum or sums as may be justly due
claimant, and have execution thereon. The Owner shall
not be liable for the payment of any costs or expenses
of any such suit.
3. No suit or action shall be commenced hereunder
by any claimant:
a) Unless claimant, other than one having a direct
contract with the Principal, shall have given written
notice to any two of the following: the Principal, the
Owner, or the Surety above named, within ninety (90)
days after such claimant did or performed the last of
the work or labor, or furnished the last -of the materials
for which said claim is made, stating with substantial
Signed and sealed this 19th day of
r/
(Witne'!)
i
accuracy the amount claimed and the name of the party
to whom the materials were furnished, or for whom
the work or labor was done or performed. Such notice
shall be served by mailing the same by registered mail
or certified mail, postage prepaid, in an envelope ad-
dressed to the Principal, Owner or Surety, at any place
where an office is regularly maintained for the trans-
action of business, or served in any manner in which
legal process may be served in the state in which the
aforesaid project is located, save that such service need
not be made by a public officer.
bl After the expiration of one (1) year following the
date on which Principal ceased Work on said Contract,
it being understood, however, that if any limitation em-
bodied in this bond is prohibited by any law controlling
the construction hereof such limitation shall be deemed
to be amended so as to be equal to the minimum period
of limitation permitted by such law.
c) Other than in a state court of competent jurisdiction
in and for the county or other political subdivision of
the state in which the Project, or any part thereof, is
situated, or in the United States District Court for the
district in which the Project, or any part thereof, is sit-
uated, and not elsewhere.
4. The amount of this bond shall be reduced by and
to the extent of any payment or payments made in good
faith hereunder, inclusive of the payment by Surety of
mechanics' liens which may be filed of record against
said improvement, whether or not claim for the amount
of such lien be presented under and against this bond.
December x 2007
Legacy Building Services, Inc.
(Principal)
(TWO
�.C_e- P(t5cwtit'
Hartford Fire Insurance Company
15urcry)
(Scab
a R. Sommerville,
( Uo)
orney-in-Fact
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of San Diego
On JAN 0 4 2008
Date
personally appeared
}
before me, Penny E. Kelley, Notary Public
Ham Insert Name and Title of the Olhcer
James R. Sommerville
Namets) d Slgner(s)
co
co
U
PENNY E. KELLEY
COMM. #1535728
NOTARY PUBLIC-CALIFORNIA N
SAN DIEGO COUNTY If
My Commission Expires
DECEMBER 26, 2008
Place Notary Seal Above
who proved to me on the basis of satisfactory evidence to
be the person(it) whose name(s4 is/at)1 subscribed to the
within instrument and acknowledged to me that
he/#i✓ K4 executed the same in his#100.$)(authorized
capacityO), and that by him signature%) on the
instrument the person%), or the entity upon behalf of
which the person(y) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph is
true and correct.
WITNESS thy d and official se .
Signature
OPTIONAL
Sign of Notary Public
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner-0 Limited D General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other.
Signer Is Representing:
RIGHT THU
OF SIC
, BPRINT
JER
Top of thumb here
Signer's Name:
❑ Individual
❑ Corporate Officer—Title(s):
❑ Partner —0 Limited 0 General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing.
RIGHT THUMBPRINT
OF SIGNER
Top of thumb here
02007 National Notary Assodatbn • 9350 De Soto Ave., P.O. Box 2402.Ohalswonh, CA 91313-2402 • wav1 NatbnalNotaryorg Item #5907 Reorder. Call Toll -Free 1-800-878-6527
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS THAT:
Lx 1
II
C I
MIN
Direct Inquiries/Claims to:
THE HARTFORD
BOND, T.4
P.O. BOX 2103, 820 ASYLUM AVENUE
HARTFORD, CONNECTICUT 06115
call: 888-266-3488 or fax: 860.757.583 5
Agency Code: 72-160200
Hartford Fire Insurance Company, a corporation duly organized under the laws o(Ihe Slate of Connecticut
Hartford Casualty Insurance Company, a corporation duly organized under the laws of the Slate of Indiana
Hartford Accident and Indemnity Company, a corporation duly organized under the laws of the State of Connecticut
Hartford Underwriters Insurance Company, a corporation duly organized under the laws of the State of Connecticut
Twin City Fire Insurance Company, a corporation duly organized under the laws of the Stale of Indiana
Hartford Insurance Company of Illinois, a corporation duly organized under the laws of the State of Illinois
Hartford Insurance Company of the Midwest, a corporation duly organized under the laws of the Stare of Indiana
Hartford Insurance Company of the Southeast, a corporation duly organized under the laws of the Stale of Florida
having their home office in Hartford, Connecticut, (hereinafter collectively referred to as the "Companies") do hereby make, constitute and appoint,
up to the amount of unlimited:
James R. Sommerville, Lawrence F. McMahon, James Baldassare, Jr., Penny E. Kelley, Christine A. Paterson
of
San Diego, CA
their true and lawful Attomey(s)-in•Fact, each in their separate capacity if more than one is named above, to sign its name as surety(ies) only as
delineated above by ®, and to execute, seal and acknowledge any and all bonds, undertakings, contracts and other written instruments in the
nature thereof, on behalf of the Companies in their business of guaranteeing the fidelity of persons, guaranteeing the performance of contrails and
executing or guaranteeing bonds and undertakings required or permitted in any actions or proceedings allowed by law.
In Witness Whereof, and as authorized by a Resolution of the Board of Directors of the Companies on July 21, 2003 the Companies
have caused these presents to be signed by its Assistant Vice President and its corporate seals to be hereto affixed, duly attested by its Assistant
Secretary. Further, pursuant to Resolution of the Board of Directors of the Companies, the Companies hereby unambiguously affirm that they are
and will be bound by any mechanically applied signatures applied to this Power of Attorney.
•
•,I1111, F1n
0,.
Paul A. 8ergenholtz, Assistant Secretary
STATE OF CONNECTICUT
} ss, Hartford
:OUNTY OF HARTFORD
On this 4th day of August, 2004, before me personally came David T. Akers, to me known, who being by me duly sworn, did depose and
ay, that he resides in the County of Hampden, Commonwealth of Massachusetts; that he is the Assistant Vice President of the Companies, the
orporations described in and which executed the above instrument: that he knows the seals of the said corporations; that the seals affixed to the
aid Instrument are such corporate seals; that they were so affixed by authority of the Boards of Directors of said corporations and that he signed
Is name thereto by like authority.
David T. Akers, Assistant Vice President
Scott B. Paseka
Notary Public
CERTIFICATE My Commission expires October 31, 2007
I, the undersigned, Assistant Vice President of the Companies, DO HEREBY CERTIFY that the above and foregoing Is a true and correct
py of the Power of Attorney executed by said Companies, which is still In full force effective as of December 19th 2007
Signed and sealed al the City of Hartford,
Gary W. Stumper, Assistant Vice President
200$
THE AMERICAN INSTITUTE OF ARCHITECTS
Executed in Duplicate Original
AIA Document A312
Performance Bond
Bond No.: 72BCSEW1925
Premium: $183,040.00
Premium is for Contract Term and
Subject to Adjustment Based on Final
Contract Price
Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable.
CONTRACTOR (Name and Address):
Legacy Building Services, Inc.
2505 Congress Street
San Diego, CA 92110
SURETY (Name and Principal Place of Business):
Hartford Fire Insurance Company
One Pointe Drive, Suite 220
Brea, CA 92821
OWNER (Name and Address):
Constellation Property Group (A Avenue), LP a Delaware limited partnership
1133 Columbia Street, Suite 101
San Diego, CA 92101
CONSTRUCTION CONTRACT
Date: 11/28/2007
Amount $ 16,480,000.00
Description (Name and Location): Centro Condos, 12th & A, National City, CA
BOND
Date (Not earlier than Construction Contract Date): 12/19/2007
Amount: $16,480,000.00
Modifications to this Bond: ® None
CONTRACTOR AS PRINCIPAL
Company: (Corporate Seal)
Legacy Building Services, Inc.
2505 Congress Street
San Diego, CA 92110
Signature: / / f �✓
Name and Title: 3; Lk y 4Jppr
(Any additional signatures appear on page 3)
❑ See Page 3
SURETY
Company: (Corporate Seal)
Hartford Fire Insurance Company
P.O. Box 2103, 690 Asylum Avenue
Hartford, CT 06115
Signature:
Name and Tit
ames R. So me Ile
Attorney-in-Fac
(FOR INFORMATION ONLY - Name, Address and Telephone)
AGENT or BROKER: OWNER'S REPRESENTATIVE (Architect, Engineer or
other party):
Alliant Insurance Services, Inc. Architect:
1620 Fifth Avenue BOKA Powell
San Diego, CA 92101 John Orfield
(619) 238-1828 8070 Park Lane, Suite 300, Dallas, TX 75231
AIA DOCUMENT A312 • PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED. • AIA
THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W„ WASHINGTON, D.C. 20006 A312-1984 1
THIRD PRINTING • MARCH 1987
1 The Contractor and the Surety, jointly and severally, bind
themselves, their heirs, executors, administrators, successors
and assigns to the Owner for the performance of the
Construction Contract, which is incorporated herein by
reference,
2 If the Contractor performs the Construction Contract, the
Surety and the Contractor shall have no obligation under this
Bond, except to participate in conferences as provided in
Subparagraph 3.1.
3 If there is no Owner Default, the Surety's obligation under
this Bond shall arise after:
3.1 The Owner has notified the Contractor and the Surety
at its address described in Paragraph 10 below that the
Owner is considering declaring a Contractor Default and
has requested and attempted to arrange a conference with
the Contractor and the Surety to be held not later than
fifteen days after receipt of such notice to discuss methods
of performing the Construction Contract. If the Owner, the
Contractor and the Surety agree, the Contractor shall be
allowed a reasonable time to perform the Construction
Contract, but such an agreement shall not waive the
Owner's right, if any, subsequently to declare a Contractor
Default; and
3.2 The Owner has declared a Contractor Default and
formally terminated the Contractor's right to complete the
contract. Such Contractor Default shall not be declared
earlier than twenty days after the Contractor and the Surety
have received notice as provided in Subparagraph 3.1; and
3.3 The Owner has agreed to pay the Balance of the
Contract Price to the Surety in accordance with the terms
of the Construction Contract or to a contractor selected to
perform the Construction Contract in accordance with the
terms of the contract with the Owner.
4 When the Owner has satisfied the conditions of Paragraph 3,
the Surety shall promptly and at the Surety's expense take one
of the following actions:
4.1 Arrange for the Contractor, with consent of the
Owner, to perform and complete the Construction
Contract; or
4.2 Undertake to perform and complete the Construction
Contract itself, through its agents or through independent
contractors; or
4.3 Obtain bids or negotiated proposals from qualified
contractors acceptable to the Owner for a contract for
performance and completion of the Construction Contract,
arrange for a contract to be prepared for execution by the
Owner and the contractor selected with the Owner's
concurrence, to be secured with performance and
payment bonds executed by a qualified surety equivalent
to the bonds issued on the Construction Contract, and pay
to the Owner the amount of damages as described in
Paragraph 6 in excess of the Balance of the Contract
Price incurred by the Owner resulting from the
Contractor's default; or
4.4 Waive its right to perform and complete, arrange for
completion, or obtain a new contractor and with
reasonable promptness under the circumstances:
.1 After investigation, determine the amount for
which it may be liable to the Owner and, as soon
as practicable after the amount is determined,
tender payment therefor to the Owner; or
.2 Deny liability in whole or in part and notify the
Owner citing reasons therefor.
5 If the Surety does not proceed as provided in Paragraph 4
with reasonable promptness, the Surety shall be deemed to be
in default on this Bond fifteen days after receipt of an additional
written notice from the Owner to the Surety demanding that the
Surety perform its obligations under this Bond, and the Owner
shall be entitled to enforce any remedy available to the Owner.
If the surety proceeds as provided in Subparagraph 4.4, and
the Owner refuses the payment tendered or the Surety has
denied liability, in whole or in part, without further notice the
Owner shall be entitled to enforce any remedy available to the
Owner.
6 After the Owner has terminated the Contractor's right to
complete the Construction Contract, and if the Surety elects to
act under Subparagraph 4.1, 4.2, or 4.3 above, then the
responsibilities of the Surety to the Owner shall not be greater
than those of the Contractor under the Construction Contract,
and the responsibilities of the Owner to the Surety shall not be
greater than those of the Owner under the Construction
Contract. To the limit of the amount of this Bond, but subject
to commitment by the Owner of the Balance of the Contract
Price to mitigation of costs and damages on the Construction
Contract, the Surety is obligated without duplication for:
6.1 The responsibilities of the Contractor for correction of
defective work and completion of the Construction
Contract;
6.2 Additional legal, design professional and delay costs
resulting from the Contractors Default, and resulting from
the actions or failure to act of the Surety under Paragraph
4; and
6.3 Liquidated damages, or if not liquidated damages are
specified in the Construction Contract, actual damages
caused by delayed performance or non-performance of
the Contractor.
7 The Surety shall not be liable to the Owner or others for
obligations of the Contractor that are unrelated to the
Construction Contract, and the Balance of the Contract Price
shall not be reduced or set off on account of any such
unrelated obligations. No right of action shall accrue on this
Bond to any person or entity other than the Owner or its heirs,
executors, administrators or successors.
8 The Surety hereby waives notice of any change, including
changes of time, to the Construction Contract or to related
subcontracts, purchase orders and other obligations.
9 Any proceeding, legal or equitable, under this Bond may be
instituted in any court of competent jurisdiction in the location
in which the work or part of the work is located and shall be
instituted within two years after Contractor Default or within two
years after the Contractor ceased working or within two years
after the Surety refuses or fails to perform its obligations under
this Bond, whichever occurs first. If the provisions of this
Paragraph are void or prohibited by law, the minimum period of
limitation available to sureties as a defense in the jurisdiction of
the suit shall be applicable.
AM DOCUMENT A312 • PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED. • ALA
THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006
THIRD PRINTING • MARCH 1987
A312-1984 2
10 Notice to the Surety, the Owner or the Contractor shall be
mailed or delivered to the address shown on the signature
page.
11 When this Bond has been furnished to comply with a
statutory or other legal requirement in the location where the
construction was to be performed, any provision in this Bond
conflicting with said statutory or legal requirement shall be
deemed deleted herefrom and provisions conforming to such
statutory or other legal requirement shall be deemed
incorporated herein. The intent is that this Bond shall be
construed as a statutory bond and not as a common law bond.
12 DEFINITIONS
12.1 Balance of the Contract Price: The total amount
payable by the Owner to the Contractor under the
Construction Contract after all proper adjustments have
been made, including allowance to the Contractor of any
amounts received or to be received
MODIFICATIONS TO THIS BOND ARE AS FOLLOWS:
by the Owner in settlement of insurance or other claims
for damages to which the Contractor is entitled, reduced
by all valid and proper payments made to or on behalf of
the Contractor under the Construction Contract.
12.2 Construction Contract: The agreement betwen the
Owner and the Contractor identified on the signature
page, including all Contract Documents and changes
thereto.
12.3 Contractor Default: Failure of the Contractor, which
has neither been remedied nor waived, to perform or
otherwise to comply with the terms of the Construction
Contract.
12.4 Owner Default: Failure of the Owner, which has
neither been remedied nor waived, to pay the Contractor
as required by the Construction Contract or to perform
and complete or comply with the other terms thereof.
(Space is provided below for additional signatures of added parties, other than those appearing on the cover page.)
CONTRACTOR AS PRINCIPAL
Company: (Corporate Seal)
Signature:
Name and Title:
Address:
SURETY
Company:
(Corporate Seal)
Signature:
Name and Title:
Address:
AIA DOCUMENT A312 • PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED. • AIA
THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 2000E
THIRD PRINTING • MARCH 1987
A312-1984 3
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of San Diego
On JAN 0 4 2008
Date
personally appeared
before me
}
Penny E. Kelley, Notary Public
Here Insert Namo and Title et the Officer
James R. Sommerville
Nemels) of Signer(s)
COMM #1535728E. p
NOTARY PUBLIC-CALIFORNIA r9
SAN DIEGO COUNTY
My Commission Expires
DECEMEER 26, 2008
Place Notary Seal Above
who proved to me on the basis of satisfactory evidence to
be the person%) whose name( is/atst subscribed to the
within instrument and acknowledged to me that
he/ t)tj executed the same in his/}tg(t b'(authorized
capacity(i ), and that by his q signature%) on the
instrument the person *), or the entity upon behalf of
which the person% acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph is
true and correct.
WITNESS m. hane and official -eal.
Signature
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
D Individual
❑ Corporate Officer — Title(s):
❑ Partner-0 Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
RIGHT THUMBPRINT
OF SIGNER
Top o1 thumb here
Signer's Name:
❑ Individual
0 Corporate Officer — Title(s):
0 Partner — 0 Limited 0 General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
RIGHT THUMBPRINT
OF SIGNER
Top of thumb here
02007 National Notary Association• 9350 De Soto Ave., P.O. Box 2402•Chatsworth, CA 91313-2402 • wvwNatbnalNotary.org Item 115907 Reorder:Call Toll -Free 1•800-876.6627
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS THAT:
[x J
x
r
1
r
r
Direct' Inquiries/Claims o:
THE HARTFORD
BOND, T-4
P.O. BOX 2103, 690 ASYLUM AVENUE
HARTFORD, CONNECTICUT 06115
call: 888-286-3488 or fax: 860-757-5835
Agency Code: 72.180200
Hartford Fire Insurance Company. a corporation duly organized under the laws of the Slate of Connecticut
Hartford Casualty Insurance Company, a corporation duly organized under the laws of the Stale of Indiana
Hartford Accident and Indemnity Company, a corporation duly organized under the laws of the State of Connecticut
Hartford Underwriters Insurance Company, a corporation duly organized under the laws oldie State of Connecticut
Twin City Flre Insurance Company, a corporation duly organized under the laws of the State of Indiana
Hartford Insurance Company of Illinois, a corporation duly organized under the laws of the Stale of Illinois
Hartford Insurance Company of the Midwest, a corporation duly organized under the laws of the State of Indiana
Hartford Insurance Company of the Southeast, a corporation duly organized under the laws of the Stale of Florida
having their home office in Hartford, Connecticut, (hereinafter collectively referred to as the "Companies") do hereby make, constitute and appoint,
up to the amount of unlimited:
1
James R. Sommerville, Lawrence F. McMahon, James Baldassare, Jr., Penny E. Kelley, Christine A. Paterson
of
San Diego, CA
their true and lawful Atiorney(s)-in•Facl, each in their separate capacity if more than one is named above, to sign its name as surety(ies) only as
delineated above by ®, and to execute, seal and acknowledge any and all bonds, undertakings, contracts and other written instruments in (he
nature thereof, on behalf of the Companies in their business of guaranteeing the fidelity of persons, guaranteeing the performance of contracts and
executing or guaranteeing bonds and undertakings required or permitted in any actions or proceedings allowed by law.
In Witness Whereof, and as authorized by a Resolution of the Board of Directors of the Companies on July 21, 2003 the Companies
have caused these presents to be signed by its Assistant Vice President and its corporate seals to be hereto affixed, duly attested by its Assistant
Secretary. Further, pursuant to Resolution of the Board of Directors of the Companies, the Companies hereby unambiguously affirm that they are
and will be bound by any mechanically applied signatures applied to this Power of Attorney.
Paul A. Bergenholtz, Assistant Secretary
STATE OFCONNECTICUT
COUNTY OF HARTFORD
ss.
Hartford
Mrr4,U
'i 1�s7
�•ro,naa r�l
David T. Akers, Assistant Vice President
On this 4th day of August, 2004, before me personally came David T. Akers, to me known, who being by me duly sworn, did depose and
say: that he resides in the County of Hampden, Commonwealth of Massachusetts; that he is the Assistant Vice President of the Companies, the
cove
to the
said nstions trument are seuchnand which executed the corporate seals; that they were so affixed tby that
authority knows he Boards ofthe
Diir Directors ocorporations;
said corporations and that he signed
his name thereto by like authority.
CERTIFlCATE
I, the undersigned, Assistant Vice President of the Companies, DO HEREBY CERTIFY that the above and foregoing is a true and correct
:opy of the Power of Attorney executed by said Companies, which is still in full force effective as of December 19th 2007
Signed and sealed at the City of Hartford.
Scott E. Paseka
Notary Public
My Commission Expires October 31, 2007
)A 2005
Gary W. Stumper, Assistant Vice President
RESOLUTION NO. 2007 — 219
RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF NATIONAL CITY
AUTHORIZING THE CHAIRMAN TO EXECUTE
A THREE YEAR MARKET RATE (10-PERCENT)
LOAN AGREEMENT FOR UP TO $2.6 MILLION
WITH THE CONSTELLATION PROPERTY GROUP
FOR THE CENTRO REDEVELOPMENT PROJECT
ON NATIONAL CITY BOULEVARD
WHEREAS, the Community Development Commission of the City of National
City ("CDC") is implementing the Redevelopment Plan for the National City Redevelopment
Project; and
WHEREAS, implementing the Downtown Specific Plan through establishing
Market Supported Values is a Strategic Goal (5a) as adopted by the City Council of the City of
National City; and
WHEREAS, the Centro condominium project, as proposed by the Constellation
Property Group was determined to be consistent with the Downtown Specific Plan on October
18, 2005 by Resolution 2005-92; and
WHEREAS, the CDC desires to make a short term market rate loan to assist
with property acquisition related to the project; and
WHEREAS, the Term Sheet is attached to this Resolution as Exhibit "A".
NOW, THEREFORE, BE IT RESOLVED that the Community Development
Commission of the City of National City hereby approves a Term Sheet, and authorizes the
Executive Director to execute a three-year market rate (10-percent) Loan Agreement for up to
$2.6 million with the Constellation Property Group for the Centro Redevelopment Project on
12th Street.
PASSED and ADOPTED this 4th day of Septem
on Morrison, Chairman
ATTEST: APPROVED AS TO FORM:
Brad : fry ston,"rretary
George H. Eiser, III
Legal Counsel
TERM SHEET
Proposed $2.6 Million Loan
from CDC to Constellation Property Group (NatCity 12th) LP
Loan Amount:
Not to exceed $2,600,000.
Interest Rate:
Ten percent (10%) per annum non -compounded.
Security:
Second Deed of Trust on the Centro project (subordinate only to the approximate
$5,700,000 First Deed of Trust to UCB on a new construction loan Deed of Trust on
the Centro Project in the approximate amount of $21,000,000), plus personal
guaranty from Eugene Marchese.
Use of
Loan Proceeds:
Assemble properties to construct the Centro condominium project — a 91,199 square
foot, four story condominium project housing 61 residential units and 108 parking
spaces, not to exceed 50 feet in height.
Conditions to
Loan Closing:
Transfer of Centro project property from Constellation Property Group (NatCity
12th) to Constellation Property Group (A Avenue) LP on or before the
closing of the loan.
ALTA lenders title insurance policy in favor of CDC insuring second priority
position of CDC Deed of Trust subject only to UCB loan on new
construction loan on Centro Project.
Approval by CDC of construction lender and construction loan terms and provisions
for Centro Project.
Approval by CDC of general contractor and agreement between Constellation
Property Group (A Avenue) LP and general contractor for construction of
Centro Project.
Constellation indemnifies the City and the CDC from any liability arising from the
transaction, and that Constellation provide a policy of Commercial General
Liability insurance in the amount of $2 Million, with the City, the CDC, and
their officers and employees as additional insureds.
Repayment
Terms:
Loan would be repaid from Centro project profit/cash flow subject only to payments
to Centro construction lender and prior to any distribution to Constellation Property
Group (A Avenue) LP. In any event, the loan would be all due and payable no later
than three years from initial funding.
Needed
Documents:
Preliminary Title Reports on Centro.
Loan Agreement.
Promissory Note.
Second Deed of Trust.
Guaranty.
Insurance certificate.
EXHIBIT "A"
Passed and adopted by the Community Development Commission of the City of
National City, California, on September 4, 2007, by the following vote, to -wit:
Ayes: Commissioners Morrison, Natividad, Parra, Ungab.
Nays: None.
Absent: Commissioner Zarate.
Abstain: None.
AUTHENTICATED BY: RON MORRISON
Chairman, Community Development Commission
SecretaTcy_uiuf►itji Development Commission
By:
Deputy
I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of
RESOLUTION NO. 2007-219 of the Community Development Commission of the City
of National City, California, passed and adopted on September 4, 2007.
Secretary, Community Development Commission
By:
Deputy
G�Uc6- 5`-1
City of National City, California
COMMUNITY DEVELOPMENT COMMISSION AGENDA STATEMENT
MEETING DATE Septemher 4 2007
23
AGENDA ITEM NO
ITEM TITLE A RESOLUTION APPROVING A TERM SHEET AND AUTHORIZING THE
EXECUTIVE DIRECTOR TO EXECUTE A THREE YEAR MARKET RATE (10-PERCENT)
LOAN AGREEMENT FOR UP TO $2.6 MILLION WITH THE CONSTELLATION
PROPERTY GROUP FOR THE CENTRO REDEVELOPMENT PROJECT ON NATIONAL
CITY BOULEVARD.
PREPARED BY ROt"
DEPARTMENT
Patricia Beard, Redevelopment Mgr, 4255 Redevelopment Division
EXPLANATION On August 30, 2005, the Community Development Commission ("CDC")
entered into a Disposition and Development Agreement for a phased redevelopment project
that, as later amended, includes "Centro" — a 91,199 square foot, four (4) story residential
condominium project housing 61 residential units and 108 parking spaces, not to exceed
50-feet in height. The developer has requested a market rate loan from the CDC to
complete property acquisition for the project. The Term Sheet is attached to the Resolution
for consideration.
1
Environmental Review Not applicable.
Strategic Plan Goals 5A: Implement Downtown Specific Plan through Establishing Market
Supported Values.
Financial Statement The loan, at 10-percent interest, will not exceed $2.6 million currently
available in CDC LAIF funds (current yield — 5.25%) to be paid in full within three (3) years.
Account No 900829
STAFF RECOMMENDATION Adopt the resolution.
BOARD / COMMISSION RECOMMENDATION Not applicable.
J
ATTACHMENTS
Resolution No. a ° ° , - a `t