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HomeMy WebLinkAbout2009 CON CDC Center for Creative Land Recyling - LoanPAGE 1 OF 17 LOAN AGREEMENT CALIFORNIA RECYCLE UNDERUTILIZED SITES (CALReUSE) ASSESSMENT PROGRAM COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY 1243 NATIONAL CITY BOULEVARD, NATIONAL CITY, CA 91950 THIS AGREEMENT (the "Agreement") IS MADE THIS 30th day of September, 2009, between the Community Development Commission of the City of National City (the "Borrower") and the California Pollution Control Financing Authority ("CPCFA" or "Lender")acting by and through its agent, Center for Creative Land Recycling, a California Non - Profit Corporation, (the "Strategic Partner") RECITALS A. Borrower proposes to conduct site assessment and characterization of Hazardous Material on the property located at 2300 Cleveland Avenue, National City, CA (the `Brownfield Project"). B. The purpose of this Agreement is to set forth the conditions upon which CPCFA will loan $32,694 to Borrower to undertake the Brownfield Project. C. Borrower has applied to Lender for a CALReUSE Assessment Program Loan and Borrower's Application has been determined by the Strategic Partner to meet eligibility requirements. D. Borrower wishes to borrow from Lender the principal sum of THIRTY TWO THOUSAND, SIX HUNDERED AND NINETY FOUR DOLLARS ($32,694) and Lender is willing to lend such sum to Borrower from the CALReUSE Assessment Program Fund (the "Program Fund") for the Brownfield Project as defined below on the terms and conditions herein contained. NOW, THEREFORE, Lender and Borrower agree as follows: ARTICLE I — DEFINITIONS Section 1.1— BORROWER means the Community Development Commission of the City of National City, a public body, corporate and politic. Section 1.2 - BROWNFIELD means that certain real property commonly known as 2300 Cleveland Avenue, National City, CA, as more specifically described by the legal description attached hereto as Exhibit A (incorporated herein by reference). Section 1.3 — ELIGIBLE COSTS shall mean those costs set forth in Exhibit A attached hereto (incorporated herein by reference). Section 1.4 — HAZARDOUS MATERIAL has the same meaning as "Hazardous Material" in Section 8090 of the CPCFA Regulations. Section 1.5 — INDEPENDENT CONSULTANT means RORE, INC.. COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY Loan Agreement Page 2 of 17 Section 1.6 - LOAN means the loan between the Borrower and the Lender evidenced by the Loan Documents. Section 1.7 — LOAN DOCUMENTS means this Agreement, the Promissory Note, the Borrower's Application including any and all exhibits to the Loan Documents. Section 1.8 — REGULATIONS means the CPCFA California Recycle Underutilized Sites (CALReUSE) Assessment Program Regulations, Title 4, Division 11, Article 9 (commencing with Section 8090) of the California Code of Regulations, as the Regulations may be amended from time to time. Section 1.9 — TRUSTEE means The Bank of New York Mellon Trust Company, N.A.or any successor thereof. Section 1.10 — Any capitalized terms used but not defined in this Agreement will have the meaning set forth in the Regulations. ARTICLE II — LOAN Section 2.1 — PROMISSORY NOTE. The Loan shall be evidenced by a promissory note (the "Note") of even date with this Agreement in the original principal amount of $32,694. The Loan shall be payable in accordance with the terms of the Note. ARTICLE III — REPRESENTATIONS AND WARRANTIES Borrower makes the following representations and warranties to Lender: Section 3.1 LEGAL STATUS. Borrower is a public body, corporate and politic and is qualified to do business in California and in all local jurisdictions therein which it conducts its business. Section 3.2 — AUTHORIZATION. This Agreement has been duly authorized, executed and delivered by Borrower, and is a valid and binding agreement of Borrower; and the Note to be executed by Borrower upon its execution and delivery, in accordance with the provisions of this Agreement, will be a valid binding obligation of Borrower enforceable in accordance with its terms. Section 3.3 — BROWNFIELD. The Brownfield as set forth in Exhibit A attached hereto meets the criteria defined in Section 8090(e) of the Regulations. Section 3.4 — BROWNFIELD PROJECT. The Brownfield Project as set forth in Exhibit A attached hereto meets the criteria defined in Section 8090(f) of the Regulations. Section 3.5 - ELIGIBLE COSTS. The costs set forth in Exhibit A attached hereto meet the criteria defined in Section 8090(k) of the Regulations. Section 3.6 - INDEPENDENT CONSULTANT. The Independent Consultant meets the criteria defined in Sections 8090(h) and 8090(s) of the Regulations as documented in Exhibit D hereof. Section 3.7 — ECONOMICALLY DISTRESSED COMMUNITY. The Brownfield is located in the National City Redevelopment Project area, and therefore meets the criteria of an Economically Distressed Community as defined in Section 8090 (j) of the Regulations. COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY Loan Agreement Page 3 of 17 Section 3.8 — LOAN DOCUMENTS. Borrower represents and warrants: (a) that Borrower has access to professional advice to the extent necessary to enable Borrower to fully comply with the terms of the Loan Documents and (b) that Borrower has the full power and authority to execute the Loan Documents. ARTICLE IV - CONDITIONS PRECEDENT The obligation of Strategic Partner to make any disbursements under the Loan on behalf of Lender is subject to all of the following conditions: Section 4.1 - NO EVENT OF DEFAULT. There shall not exist an Event of Default under this Agreement or the Note, and there shall exist no event, omission or failure of condition, which, after notice or lapse of time, would constitute an Event of Default under this Agreement or the Note. Section 4.2 - DOCUMENTATION. Borrower shall have delivered to Strategic Partner in form and substance satisfactory to Strategic Partner this Loan Agreement and the Note. Section 4.3 — MATCH. Strategic Partner shall have delivered to Trustee evidence that Match has been met for the Loan as more fully described in Exhibit A of this Agreement and Strategic Partner shall deliver evidence that all cash Match funds have been deposited with the Trustee. Section 4.4 — FUNDING CONDITIONS. Borrower has met all funding conditions in accordance with Sections 8096(a) and 8096(b) of the Regulations. Section 4.5 — TERMS OF COMMITMENT. In the event Borrower has not fulfilled all conditions precedent set forth in this Article IV within 30 days of Borrower's execution of this Agreement, Lender's obligation under this Agreement shall automatically terminate. ARTICLE V — LOAN DISBURSEMENT PROCEDURES Section 5.1— TERMS OF DISBURSEMENT. Disbursements of the Loan shall commence upon closing of the Loan. Disbursements of the Loan shall be only for the Eligible Costs set forth in Exhibit A, in an aggregate amount of not more than the amounts set forth in Exhibit A for each Eligible Cost, unless as provided herein. Borrower shall obtain written authorization from the Strategic Partner to make changes in the eligible uses of funds that exceed ten percent (10%) or $5,000, whichever is greater, the amount of any budget line item of Exhibit A. Section 5.2 - DISBURSEMENT PROCESS AND ADDITIONAL ADVANCES. Only one draw per month will be allowed against the Loan. Borrower shall make requests for disbursement of Loan proceeds to Strategic Partner at least twenty (20) business days before the date such funds are needed by Borrower. In order to receive disbursements, requests for disbursement must be supported by documentation sufficient in Strategic Partner's determination to support payment. Strategic Partner shall use its best efforts to respond to a request for disbursement within twenty (20) business days, after the receipt of the request. The request for disbursement must contain at least the information in substance and form of Exhibit B attached hereto. Borrower shall pay an amount equal to one hundred dollars ($100.00) for the Trustee's servicing fee from the initial disbursement of the Loan and an amount equal to fifty dollars ($50.00) for each draw against the Loan. COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY Loan Agreement Page 4 of 17 Upon receipt of the signed request for disbursement, the Strategic Partner, in its sole discretion, shall authorize the disbursement of Loan funds to Borrower in the following order: (a) First, from the cash portion of the Match until depleted, and (b) Second, from the funds of the CPCFA committed by the CPCFA for the Loan. Strategic Partner shall notify the Borrower in writing within five (5) business days of any deficiencies or discrepancies in the request for disbursement. Borrower shall not receive a disbursement until Borrower corrects any such deficiencies or discrepancies. Borrower's expenditure of Loan funds for uses not described in Exhibit A or the request for disbursement, or which deviate, without Strategic Partner authorization, by more than the greater of ten percent (10%) or $5,000 in any category from the approved uses of Loan proceeds listed in Exhibit A, shall result in the suspension of subsequent Loan disbursements and may be deemed by Lender to constitute an Event of Default hereunder. The amount of all ineligible Loan expenditures shall be immediately repaid to Lender. Section 5.3 — AMOUNT OF DISBURSEMENT. Loan proceeds shall be disbursed up to the amount authorized under this Loan Agreement and only for Eligible Costs specified in Exhibit A. Any unused Loan funds shall revert to CPCFA. Section 5.4 — DISBURSEMENT PERIOD. The initial disbursement of Loan proceeds shall be made no later than six (6) months from date of this Agreement, and all Loan disbursements shall be disbursed no later than twelve (12) months from the date of the first disbursement of the Loan unless Strategic Partner extends this time in writing, which writing shall become incorporated into this Agreement. ARTICLE VI — AFFIRMATIVE COVENANTS Borrower covenants that so long as Borrower is indebted to Lender under this Agreement, and until the payment in full of the Loan, Borrower shall: Section 6.1— FINAL REPORT. If the Loan is used to finance those Eligible Costs defined in Section 8090(k)(1) and/or Section 8090(k)(3) of the Regulations, Borrower will cause the Independent Consultant to prepare a Final Report. Borrower will provide or cause to be provided to the Strategic Partner a copy of the Final Report within thirty (30) days of completion of the Final Report. Section 6.2 — FINAL REPORT CERTIFICATION. If the Loan is used to finance those Eligible Costs defined in Section 8090(k)(1) and/or Section 8090(k)(3) of the Regulations, Borrower will deliver to the Strategic Partner within ninety (90) days after Borrower's receipt of the Final Report a written certification under penalty of perjury in substance and form of Exhibit C attached hereto. Section 6.3 — COMPLY WITH THE REGULATIONS. Comply with and be bound by the Lender's Brownfield statutes, Health and Safety Code sections 44500, et. seq., and Regulations pursuant to Section 8095(i) of the Regulations. Continued compliance with program requirements is Borrower's responsibility. Section 6.4 - ACCOUNTING RECORDS. Maintain adequate books and accounts in accordance with generally accepted accounting principles, consistently applied. COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY Loan Agreement Page 5 of 17 Section 6.5 — EXISTENCE. Preserve and maintain its existence and all of its rights, privileges and franchises; conduct its business in an orderly, efficient, and regular manner; and comply with the requirements of all applicable laws, rules, regulations, and orders of a governmental authority. Section 6.6 - TAXES AND LIABILl1'1hS. Pay and discharge when due any and all indebtedness, obligations, assessments, taxes (real and personal), including Federal and state income taxes, provided that provision is made to the satisfaction of Lender for eventual payment thereof in the event that it is found that the same is an obligation of Borrower. Section 6.7 — LITIGATION. Promptly give notice in writing to Strategic Partner of any administrative action or litigation pending or threatened against Borrower, the Brownfield or the Brownfield Project in which the amount claimed is in excess of five thousand dollars ($5,000). Section 6.8 - NOTICE TO S 1RATEGIC PARTNER. Promptly give notice in writing to Strategic Partner of: (1) any change in name of Borrower, and in the case of a corporation, partnership or joint venture, any change in name, identity or corporate status; or (2) any uninsured or partially uninsured loss through fire, theft, liability, or otherwise in excess of an aggregate of two thousand five hundred dollars ($2,500). Section. 6.9 — RELEASE. Hereby waive all claims and recourse against Strategic Partner including the right to contribution for loss or damage to persons or property arising from, growing out of, or in any way connected with or incident to this Agreement, Borrower's use of the Loan proceeds, Borrower's Business operations, the Brownfield, or the Brownfield Project. Section 6.10 — INDEMNIFICATION. Defend, indemnify and hold harmless the Lender, the Strategic Partner and the State, and all officers, trustees, agents and employees of the same, from and against any and all claims, losses, costs, damages, or liabilities of any kind or nature, whether direct or indirect, arising from or relating to the Loan, the Brownfield, the Brownfield Project or the CALReUSE Assessment Program, including but not limited to, any and all claims, losses, costs, damages, or liabilities arising from or related to the presence, release, threatened release, investigation or remediation of Hazardous Material of the Brownfield or the Brownfield Project. Borrower shall defend, indemnify, and hold Strategic Partner, Lender, the State, successors, assigns, its members, officials, directors, employees or agents of the same, harmless against any claims, demands, administrative actions, loss, litigation, liabilities, losses, remediation costs, damages, response costs, and penalties, including costs of legal proceedings and reasonable attorneys' fees, that any of the indemnified parties may incur as a result of any inaccuracy or breach of any representation, warranty, agreement, or covenant contained in this Agreement with respect to Hazardous Material, or as a consequence of any use, generation, manufacture, storage, release, or disposal (whether or not the Borrower knew of same) of any Hazardous Material occurring as a result of the Borrower's use or occupancy of the Brownfield or performance of the Brownfield Project. The provisions of this section shall survive termination of this Agreement. Section 6.11 — COMPLIANCE WITH HAZARDOUS MATERIAL LAWS. Borrower will comply (a) with all Hazardous Waste Reporting Laws applicable to the Brownfield, the Brownfield Project, or resulting from the contents of the Final Report and (b) with all applicable laws, including but not limited to statutes, rules, regulations, administrative orders and agreements, and judicial orders or consent decrees that apply to the Brownfield or the Brownfield Project, related to or arising from assessment, characterization and remediation of a COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY Loan Agreement Page 6 of 17 Brownfield, including but not limited to those requiring the preparation of a description of Hazardous Material on the Brownfield and those requiring oversight and supervision to assure the adequacy of any Feasibility Study, Remedial Investigation or Remedial Action Plan by the Oversight Agency. Section 6.12 - RECOVERED DAMAGES. If the Borrower recovers damages from a person who is liable for the release, threatened release, presence or existence of a Hazardous Material at the Brownfield or as a result of the Brownfield Project, any money so recovered shall be used first to repay the Loan, except that the Borrower shall be permitted to retain fees and costs incurred in recovering the damages. Section 6.13 — REFUNDABLE DEPOSITS. If the Loan is used to finance those Eligible Costs defined in Section 8090(k)(4), any money refunded to the Borrower shall be used first to repay the Loan. Section 6.14 - NON-DISCRIMINATION CLAUSE. During the term of this Agreement, Borrower and its subcontractors shall not unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of sex, race, color, ancestry, religion, creed, national origin, physical disability (including HIV and AIDS), mental disability, medical condition (cancer or genetic characteristics), sexual orientation, political affiliation, position in a labor dispute, age, marital status, and denial of statutorily -required employment -related leave. Borrower and subcontractors shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. Borrower and subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code Section 12990 (a-f) et seq.) and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Agreement by reference and made a part hereof as if set forth in full. Borrower and its subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement. ARTICLE VII - NEGATIVE COVENANTS Borrower further covenants that so long as Borrower is indebted to Lender under this Agreement or the Note, and until payment in full of the Note issued hereunder, Borrower will not without prior consent of Strategic Partner: Section 7.1 - USE OF FUNDS. Use any Loan proceeds for purposes other than as described in Exhibit A, the request for disbursement (without prior written consent of Strategic Partner), or for the Brownfield Project. Section 7.2 - MERGER, CONSOLIDATION, SALE OF ASSETS. Merge, consolidate or otherwise alter Borrower's form of business, or acquire all or substantially all of the assets of any other corporation or entity; or sell, lease, assign, transfer, or otherwise dispose of more than 20% of control of Borrower's business assets to another person without prior written approval of Strategic Partner. COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY Loan Agreement Page 7 of 17 ARTICLE VIII — DEFAULT AND REMEDIES Section 8.1 - EVENTS OF DEFAULT. Each of the following shall constitute an Event of Default under this Agreement: (a) Borrower's failure to make any payment when due under this Agreement or the Note; If any material representation or warranty made by Borrower, or anyone acting on its behalf, hereunder shall prove to be incorrect in any material respect; (c) Borrower's failure to perform any other term or condition of this Agreement or other Loan Documents; (d) Borrower's failure to comply with any Hazardous Waste Reporting Law applicable to the Brownfield or Brownfield Project, including Hazardous Waste Reporting Laws that apply based upon -the -information set forth in a Final Report, or failure to deliver the certification required by Section 6.2 herein within the time period required; Any substantial or continuous breach by Borrower of any material obligations of Borrower imposed by any agreements other than the Loan Documents with respect to the Brownfield or the Brownfield Project; Borrower defaults on any other loan with Lender or the Strategic Partner; The failure of Borrower to promptly pay and discharge any judgment or levy of attachment, execution or other process against the assets of Borrower, and such judgment is not satisfied, or such levy or other process be not removed within twenty (20) days after the entry or levy thereof; (h) Any bankruptcy action is filed against Borrower or Borrower shall be adjudicated as bankrupt or insolvent, or shall consent to or apply for the appointment of a receiver, trustee or liquidator of itself or any of its property, or shall admit in writing its inability to pay its debts generally as they become due, or shall make a general assignment for the benefit of creditors, or shall file a voluntary petition in or an answer seeking reorganization or arrangement in a proceeding under any bankruptcy law; Borrower becomes the subject of an administrative, civil or criminal action that Lender believes may materially affect Borrower's ability pay the Note or adequately complete the Brownfield Project; or (j) Borrower reorganizes, merges, consolidates, or otherwise changes ownership without Strategic Partner's prior written consent. Section 8.2 - NOTICE OF BORROWER'S DEFAULT AND OPPORTUNITY TO CURE. Strategic Partner shall give written notice to Borrower of any Event of Default by specifying: (a) the nature of the event or deficiency giving rise to the Event of Default, (b) the action required to cure the Event of Default, if an action to cure is possible, and (c) except for an Event of Default under Section 8.1(h), a date, which shall not be less than thirty (30) calendar days from the mailing of the notice, by which such action to cure must be taken, if an action to cure is possible, provided, however, except with respect to a monetary Event of Default, so long (b) (e) (i) COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY Loan Agreement Page 8 of 17 as Borrower has commenced to cure within such time, then Borrower shall have a reasonable period thereafter within which to fully cure the Event of Default. Section 8.3 - LENDER'S REMEDIES. Upon the happening of an Event of Default, Lender's obligation to disburse Loan proceeds shall cease. Upon notice to Borrower of an Event of Default as provided for above, and, if an action to cure is specified in the notice, and Borrower's failure to cure the deficiency within a reasonable time period, as specified in the notice Lender may, in addition to other rights and remedies permitted by the Loan Agreement or applicable law, proceed with any or all of the following remedies in any order or combination Lender may choose in its sole discretion: (a) Lender may declare the entire outstanding principal amount of the Loan and all accrued interest thereon, as well as any other funds advanced to Borrower by Lender under the Loan Agreement, immediately due and payable; Bring an action in equitable relief (1) seeking the specific performance by Borrower of the terms and conditions of the Loan Agreement, and/or (2) enjoining, abating, or preventing any violation of said terms and conditions, and/or (3) seeking declaratory relief; (c) Pursue any other remedy allowed at law or in equity. Notwithstanding the above, in the event there is an Event of Default under Section 8.1(d), following the required notice and cure period, Lender shall exercise its remedy under 8.3(a). Lender shall impose an interest rate penalty at a rate equal to ten percent (10%) per annum upon an Event of Default and Borrower's failure to cure within the timeframe specified in the notice described in Section 8.2. Strategic Partner's or Lender's failure to declare an Event of Default, or pursue any of the abovementioned remedies in the Event of Default, does not waive Lender's right to declare an Event of Default or pursue any remedies herein provided. No remedy herein conferred upon or reserved to the Lender is intended to be exclusive of any other available remedy or remedies, but each and every such remedy, to the extent permitted by law, shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity or otherwise. In order to entitle the Lender to exercise any remedy, to the extent permitted by law, reserved to it contained in this Agreement, it shall not be necessary to give any notice, other than such notice as may be herein expressly required. (b) ARTICLE IX - MISCELLANEOUS Section 9.1 — CONSENT TO STRATEGIC PARTNER. Borrower acknowledges that during the term of this Agreement, unless otherwise notified by the Lender in writing, the Strategic Partner shall be acting as the Lender's agent and the Strategic Partner shall perform the acts required of the Lender in this Agreement. Section 9.2 — CONFLICTS OF INTEREST. Borrower shall exercise due diligence to ensure that any member, officer, or employee of the Independent Consultant, Strategic Partner or Lender, or a member of such person's immediate family, who exercises any decision making responsibilities or power with respect to the Loan, has not or will not obtain a material fmancial COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY Loan Agreement Page 9 of 17 interest or benefit from the Loan, or any contract, subcontract or agreement with respect thereto or the proceeds thereunder. Borrower warrants, represents and agrees to exercise due diligence to assure that no member, officer, director, or employee of Borrower, or any immediate family member of such person, who exercises any decision making responsibility or power with respect to the Loan has or will obtain a material financial interest or benefit from this Loan, or any contract, subcontract or agreement with respect thereto or the proceeds thereunder. Borrower shall incorporate, or cause to be incorporated, in all contracts and subcontracts for work to be performed under this Agreement a provision prohibiting any conflict of interest described above in this section. Borrower's obligations under this section shall be deemed satisfied, if such persons and entities with which it contracts execute a certification as to such matters. Notwithstanding the above, Borrower shall provide a written certification concerning the Independent Consultant in substance and form of Exhibit D attached hereto. Section 9.3 - TERM OF THIS AGREEMENT. This Agreement shall commence on the date set forth above and remain in full force and effect until the Loan has been repaid, unless sooner terminated by Lender. Notwithstanding the foregoing, Borrower's covenants under Sections 6.1, 6.2 (if applicable), 6.10, and 6.11 shall survive after repayment of the Loan and until such covenants are fully performed. Section 9.4 - GOVERNING LAW. The Loan Documents shall be interpreted under and be governed by the laws of the State of California. The parties agree that venue is proper in the Superior Court of Sacramento County. Section 9.5 - NO WAIVER. Any waiver by Lender of any obligation in this Note must be in writing. No waiver shall be implied from any failure of Borrower to take, or any delay or failure by Lender or Strategic Partner to take action on any breach or default or Event of Default by Borrower or to pursue any remedy allowed under this Agreement or applicable law. Any extension of time granted to Borrower to perform any obligation under this Note shall not operate as a waiver or release from any of its obligations under the Note. Borrower hereby waives all defenses and pleas on the grounds of any extensions of the time for repayment of any amounts due under this Note, unless Lender has granted such extensions in writing. Consent by Lender to any act or omission by Borrower shall not be construed to be a consent to any other act or omission or to waive the requirement for Lender's written consent to future waivers. Section 9.6 - NOTICES. All notices, request and demands given to or made upon the respective parties shall be deemed to have been given or made when deposited in the mail, postage prepaid, and addressed as follows: Borrower: Community Development Commission of the City of National City 1243 National City Boulevard National City, CA 91950-4301 Attn: Colby Young Lender: Center for Creative Land Recycling 200 Pine Street, Suite 400 San Francisco, CA 94104 Attn: Stephanie Shakofsky COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY Loan Agreement Page 10 of 17 Section 9.7 - ATTORNEY'S FEES. In the event of any Event of Default, or any legal action is commenced to interpret or to enforce the terms of this Agreement, the prevailing party in any such action shall be entitled to recover all reasonable attorneys' fees and costs incurred in such action. In addition, Borrower agrees to pay Lender all reasonable costs incurred in collection of amounts due under this Note which are not paid within ten (10) days of the due date as specified herein, whether or not a legal action has been filed. Section 9.8 - LENDER'S, OR S 1'RATEGIC PARTNER'S RIGHT TO INSPECT RECORDS. Borrower is required to maintain adequate books, accounts, and records and to prepare all financial statements required under this Agreement in accordance with generally accepted accounting principles and practices consistently applied, and in compliance with the regulations of any governmental regulating body having jurisdiction over it, and permit employees or agents of Lender or the Strategic Partner, at any reasonable time, to inspect Borrower's properties, and/or to examine Borrower's books, accounts, records and make copies and memoranda of them. These records shall include employment information records as well as business and financial records. Section 9.9 - BINDING UPON SUCCESSORS. All provisions of this Agreement shall be binding upon and inure to the benefit of the heirs, administrators, executors, successors -in - interest, transferee, and assigns of each of the parties; provided, however, that this section does not waive the prohibition on assignment of this Agreement by Borrower without Lender's consent. The term "Borrower" as used in this Agreement shall include all assigns, successors -in - interest, and transferee of Borrower. Section 9.10 - RELATIONSHIP OF PARTIES. The relationship of Borrower and Lender for the Brownfield Project and this Loan is and shall remain solely that of a debtor and a creditor, and shall not be construed as a joint venture, equity venture, partnership, or any other relationship. Lender neither undertakes nor assumes any responsibility or duty to Borrower (except as provided herein) or to any third party with respect to Borrower, the Brownfield, Brownfield Project or the Loan. Borrower shall have no authority to act as an agent of Lender or to bind Lender to any obligation. Section 9.11 - ASSIGNMENT AND ASSUMPTION. Borrower shall not assign any of its interests under this Agreement or the Loan Documents to any other party, except as specifically permitted under the terms of this Agreement or the Loan Documents, without the prior written consent of Lender. Any unauthorized assignment shall be void. Section 9.12 — AMENDMENTS AND MODIFICATIONS. Any amendments or modifications to the Loan Documents must be in writing, and shall be effective only if executed by both Borrower and Lender. Section 9.13 - TIME. Time is of the essence in this Agreement. Section 9.14 - INTEGRATION. This Agreement and the Note contain the entire agreement of the parties and supersede any and all prior negotiations. Section 9.15 - SEVERABILITY. If any provision of this Agreement shall be held invalid, illegal or unenforceable by a court of competent jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired by such holding. Section 9.16 — EXECUTION OF COUNTERPARTS. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument; provided, however, that only the counterpart delivered to the Strategic Partner shall be deemed the original. COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY Loan Agreement Page 11 of 17 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in day and year first hereinabove written. BORROWER: COMM By. LENDER: VELOPME COMMISSION OF THE CITY OF NATIONAL CITY. utston, ecutive Director CENTER FOR CREATIVE LAND RECYCLING STRATEGIC PARTNER ON BEHALF OF CPCFA By: Stephanie Shakofsky, Executive Director COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY Loan Agreement Page 12 of 17 Brownfield Location: Exhibit A 2300 Cleveland Avenue, National City, CA APNs: 559-117-04, 559-117-05, 559-117-06, 559-117-07,559-117-12 Brownfield Project: Site assessment and characterization of Hazardous Material Eligible Costs: Phase II & additional environmental analysis $37,598 Servicing Fees: BORROWER SHALL PAYANAMOUNTEQUAL TO ONE HUNDRED DOLLARS ($100.00) FOR THE TRUSTEE'S SERVICING FEE AND ANAMOUNT EQUAL TO FIFTYDOLLARS ($50.00) FOR EACH DRAW AGAINST THE LOAN.] Match: Borrower will provide a 15% cash match of $4,904 payable to the Trustee and due to the Strategic Partner concurrently with the delivery of this signed Loan Agreement. The Match will be disbursed first. Once the Match is fully depleted, then CPCFA funds shall be disbursed. The remaining 10% match will be provided by CCLR as an in - kind contribution of administrative program support. COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY Loan Agreement Page 13 of 17 Exhibit B REQUEST FOR DISBURSEMENT OF LOAN PROCEEDS Date: Stephanie Shakofsky Center for Creative Land Recycling 200 Pine Street, Suite 400 San Francisco, CA 94104 Ms. Cristina Garchitorena The Bank of New York Mellon Trust Company, N.A. 700 S. Flower St., Suite 500 Los Angeles, CA 90017 RE: Request for Disbursement of Loan Proceeds of the Community Development Commission of the City of National City ("Borrower") (Contact Name, Contact Title) requests the following disbursement of proceeds from the Strategic Partner as allowed by the Loan Documents: 1) The name and address of the entity to whom the payment is due. 2) The purpose(s) for which such payment is to be made. 3) The amount to be paid. 4) Indication of amount(s) to be paid from Match and/or Loan fund. 5) Indication of amount(s) to be paid into the Program Fund for the Trustee's servicing fee and/or draw fee. 6) The date that the funds are needed. 7) Borrower represents and warrants that each disbursement mentioned herein is a proper draw against the fund indicated. 8) Borrower represents and warrants that Borrower has not exceeded that maximum allowable amount of disbursement of Match and Loan proceeds as defined in Exhibit A of the Loan Agreement. 9) Borrower represents and warrants that each disbursement mentioned herein is for an Eligible Cost as defined in the Loan Agreement. 10) Borrower represents and warrants that each obligation mentioned herein has been properly incurred and is a proper charge against the Loan. 11)Borrower represents and warrants that none of the items for which payment is requested has been previously paid by the Loan. 12) Borrower represents and warrants that each item for which payment is requested is or was necessary in connection with the Brownfield Project. 13) Every capitalized term has the meaning defined in the Loan Agreement. COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY Loan Agreement Page 14 of 17 BORROWER: STRATEGIC PARTNER APPROVAL: Community Development Commission of Center for Creative Land Recycling the City of National City By: By: Stephanie Shakofsky, Executive Director (Contact Name, Contact Title) COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY Loan Agreement Page 15 of 17 Exhibit C Date: FINAL REPORT CERTIFICATION Stephanie Shakofsky Center for Creative Land Recycling 200 Pine Street, Suite 400 San Francisco, CA 94104 RE: Final Report Certification of the Community Development Commission of the City of National City ("Borrower") (Contact Name, Contact Title) makes the following certification to the Strategic Partner and the Authority under penalty of perjury as required by the Loan Documents and Section 8095(p) of the Regulations: 1) Borrower is informed of and understands all Hazardous Waste Reporting Laws applicable to the Brownfield and the contents of the Final Report; [SELECT EITHER 2a) OR 2b)J 2a) Borrower identified no reporting requirements under any of the Hazardous Waste Reporting Laws applicable to the Brownfield and the Brownfield Project or resulting from the contents of the Final Report; or 2b) Borrower identified a reporting requirement under a Hazardous Waste Reporting Law that is applicable to the Brownfield [and/or] the Brownfield Project including Hazardous Waste Reporting Laws that apply based upon the information set forth in the Final Report. [SELECT EITHER 3a) OR 3b)J 3a) Borrower certifies that it has made all the reports required by the Hazardous Waste Reporting Laws applicable to the Brownfield [and/or] the Brownfield Project including Hazardous Waste Reporting Laws that apply based upon the information set forth in the Final Report; or 3b) Borrower certifies that there are no reports required by the Hazardous Waste Reporting Laws applicable to the Brownfield [and/or] the Brownfield Project including Hazardous Waste Reporting Laws that apply based upon the information set forth in the Final Report; and 4) [Ijapplicable] Borrower certifies that it reported to (Agency Name) on (Date). 5) Every capitalized term has the meaning defined in the Loan Agreement. BORROWER: Community Development Commission of the City of National City By: (Contact Name, Contact Title) COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY Loan Agreement Page 16 of 17 Exhibit D INDEPENDENT CONSULTANT CERTIFICATION Date: 9/30/09 Stephanie Shakofsky Center for Creative Land Recycling 200 Pine Street, Suite 400 San Francisco, CA 94104 RE: Independent Consultant Certification of the Community Development Commission of the City of National City ("Borrower") Brad Raulston ,Executive Dir. (Contact Name, Contact Title) makes the following certification to the Strategic Partner as defined in the Loan Documents: RORE, INC. meets the following criteria defined in Sections 8090(h) and 8090(s) of the Regulations including: (a) The Independent Consultant is an environmental professional as defined in 40 CFR. Section 312.10. Environmental Professional means: (1) a person who possesses sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding conditions indicative of releases or threatened releases (see §312.1(c)) on, at, in, or to a property, sufficient to meet the objectives and performance factors in §312.20(e) and (f). (2) Such a person must: (i) Hold a current Professional Engineer's or Professional Geologist's license or registration from a state, tribe, or U.S. territory (or the Commonwealth of Puerto Rico) and have the equivalent of three (3) years of full-time relevant experience; or (ii) Be licensed or certified by the federal government, a state, tribe, or U.S. territory (or the Commonwealth of Puerto Rico) to perform environmental inquiries as defined in §312.21 and have the equivalent of three (3) years of full- time relevant experience; or (iii) Have a Baccalaureate or higher degree from an accredited institution of higher education in a discipline of engineering or science and the equivalent of five (5) years of full-time relevant experience; or (iv) Have the equivalent of ten (10) years of full-time relevant experience. (3) An environmental professional should remain current in his or her field through participation in continuing education or other activities. (4) The definition of environmental professional provided above does not preempt state professional licensing or registration requirements such as those for a professional COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY Loan Agreement Page 17 of 17 geologist, engineer, or site remediation professional. Before commencing work, a person should determine the applicability of state professional licensing or registration laws to the activities to be undertaken as part of the inquiry identified in §312.21(b). (b)The Independent Consultant meets all of the following requirements: (1) The Consultant is not an employee of, general or a limited partner or a shareholder in, or have any other ownership or management interest in the Borrower, a known responsible party, or a prospective buyer of the Brownfield; (2) Consultant does not receive any source of income from the Borrower, a known responsible party, or a prospective buyer of the Brownfield, other than the payment of fees for professional services unless the Consultant is acting in his or her capacity as an employee of a governmental entity; and (3) The Independent Consultant does not accept, or agree to accept, any payment that is in any way contingent upon the outcome of a Final Report. BORROWER: Community Development Commission of the City of National City (Contact Name, Contact Title) PROMISSORY NOTE CALIFORNIA RECYCLE UNDERUTILIZED SITES (CALReUSE) ASSESSMENT PROGRAM COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY 1243 NATIONAL CITY BOULEVARD, NATIONAL CITY, CA 91950 $32,694 DATE: September 30, 2009 FOR VALUE RECEIVED, the Community Development Commission of the City of National City (`Borrower") hereby promises to pay to the order of the California Pollution Control Financing Authority, a State agency, whose address is 915 Capitol Mall, Room 457, Sacramento, CA 95814 ("Lender"), the principal amount equal THIRTY TWO THOUSAND, SIX HUNDERED AND NINETY FOUR DOLLARS AND NO/100 DOLLARS ($32,694) ("Loan") or so much as may be advanced by Lender to Borrower ("the Loan") pursuant to the loan agreement dated September 30, 2009, between Borrower and Lender (the "Loan Agreement"), together with interest at the fixed rate of two percent (2.00%) per annum until the Loan is paid in full. The obligation of Borrower and Lender with respect to all such advances is subject to the terms of: (a) The Application; (b) The Loan Agreement; and (c) This Note. 1. LOAN TERM. Principal and interest shall become due and payable in full upon the earliest of: (a) September 30, 2012 (maturity), not to exceed 36 months from the date hereof; (b) Issuance of either a grading permit or a building permit for the Brownfield; (c) Sale or transfer (including, without limitation, an option to purchase or a contract of purchase) of all or part of the Brownfield; (d) The occurrence of an Event of Default under the Loan Agreement and Borrower's failure to cure within the time specified, if any. 2. INTEREST RATE. The interest on the Loan shall accrue at a fixed interest rate of two percent (2.00%) per annum. Interest shall accrue on the outstanding principal amount from the date of each advance hereunder until this Note is paid in full. Interest will be charged on a 365-day year basis, charged for actual days elapsed. In the event there is an Event of Default on the Loan the Lender shall impose an interest rate penalty at a rate equal to ten percent (10%) per annum. 3. PREPAYMENT OF LOAN. Borrower may prepay any amounts due on the Loan at anytime without incurring a prepayment penalty. COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY Promissory Note Page 2 of 3 4. PLACE AND MANNER OF PAYMENT. All amounts due and payable under this Note and the Loan Agreement are payable at the office of the Trustee as set forth below: The Bank of New York Mellon Trust Company, N.A. 700 Flower Street, Suite 500 Los Angeles, CA 90017 Attn: Cristina Garchitorena or at such other place as Lender may designate to Borrower in writing from time to time, in any currency of the United States which on the date of payment is legal tender for the payment of public and private debts. 5. APPLICATION OF PAYMENTS. All payments received on account of this Note shall be first applied to accrued interest to the day Lender receives the payment, then to bring principal current, and the remainder, if any, shall be applied to the reduction of principal except that if Lender shall have made additional advances under the terms of the Loan Documents and such advances have not been repaid, any payments received by Lender, at its option, may be applied first to the repayment of such advances and interest thereon. 6. WAIVERS. Presentment, notice of dishonor, and protest are waived by all makers, sureties, guarantors, and endorsers of this Note. 7. DEFAULT AND ACCELERATION. Borrower agrees that the outstanding principal balance of this Note, together with all accrued interest thereon and charges owing, shall, at the option of Lender, become immediately due and payable upon any Event of Default as defined in the Loan Agreement, including without limitation the failure of Borrower to make any payment when due. Upon any Event of Default, Lender may exercise any other right or remedy permitted under the Loan Documents or applicable law. 8. CONSENTS AND APPROVALS. Any consent or approval required under this Note shall not be unreasonably withheld. 9. NOTICES. Any notices, communications, or demands shall be in writing and may be communicated to Lender or Borrower at the addresses set forth in the Loan Agreement. 10. BINDING UPON SUCCESSORS. All provisions of this Note shall be binding upon the heirs, administrators, executors, successors -in -interest, transferees, and assigns of Borrower and shall inure to the benefit of Lender and Lender's successors and assigns. 11. ASSUMPTION. Borrower's obligations under this Note are not assumable. 12. DEFINITIONS. Capitalized terms not defined in this Note shall have the same meaning as defined terms in the Loan Agreement. 13. GOVERNING LAW. This Note shall be interpreted under and governed by the laws of the State of Califomia and venue is proper in the Superior Court of Sacramento County. 14. LOAN AGREEMENT CONTROLS. In the event that any provisions of this Note and the Loan Agreement conflict, the terms of the Loan Agreement shall control. 15. SEVERABILITY. Every provision of this Note is intended to be severable. If any provision of this Note is held invalid, illegal, or unenforceable by a court of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions shall not be affected or impaired. COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY Promissory Note Page 3 of 3 16. TIME. Time is of the essence in this Note. 17. WAIVER. Any waiver by Lender of any obligation in this Note must be in writing. No waiver shall be implied from any failure of Borrower to take, or any delay or failure by Lender to take action on any breach or default or Event of Default by Borrower or to pursue any remedy allowed under this Note or applicable law. Any extension of time granted to Borrower to perform any obligation under this Note shall not operate as a waiver or release from any of its obligations under the Note. Borrower hereby waives all defenses and pleas on the grounds of any extensions of the time for repayment of any amounts due under this Note, unless Lender has granted such extensions in writing. Consent by Lender to any act or omission by Borrower shall not be construed to be a consent to any other act or omission or to waive the requirement for Lender's written consent to future waivers. 18. AMENDMENTS AND MODIFICATIONS. Any amendments or modifications to this Note must be in writing, and shall be effective only if executed by both Borrower and Lender. Executed at National City , California, on September 30 , 2009 (City Name) Community Development Commission of the City of National City By: Brson, xecutive Director CENTER FOR CREATIVE LAND RECYCLING November 6, 2009 R4dengnmg and for Sustainable Communities Colby Young Community Development Corporation of National City 1243 National City Boulevard National City, CA. 91950-4301 Re: 2300 Cleveland Avenue, National City, CA Dear Mr. Young: Congratulations! Your CALReUSE loan is ready to go. Enclosed you will find a copy of the countersigned loan documents for your records. When you are ready to make a request for disbursement, please submit the following to CCLR: • Completed Exhibit B • Supporting documentation (invoices) • $50 check payable to Bank of New York Mellon Trust Company, N.A. Please note the above documents are required for every draw requested on the loan and only one draw per month is permitted. If you have any questions please call me at 415.398.1080 x102. Sincerely, Evan Reeves Center for Creative Land Recycling RECEIVED Nov 12 2009 Community Development Commission 200 Pine Street, Suite 400, San Francisco, California 94104 • 415.398.1080 • Fax 415.398.5738 • www.cclr.org OFFICE OF THE CITY CLERK 1243 National City Blvd. National City, California 91950 Michael R. Della, CMC - City Clerk 619-336-4228 phone • 619-336-4229 fax CENTER FOR CREATIVE LAND RECYCLING Loan Agreement Denise Davis (CDC) Forwarded Copy of Agreement to Lender RESOLUTION NO. 2009 — 294 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY RATIFYING AND AUTHORIZING THE EXECUTIVE DIRECTOR TO EXECUTE A LOAN AGREEMENT FOR A LOAN IN THE AMOUNT OF $32,694 WITH THE CENTER FOR CREATIVE LAND RECYCLING TO OBTAIN FUNDING TO CONDUCT A SITE ASSESSMENT AND CHARACTERIZATION OF HAZARDOUS MATERIALS ON THE PROPERTY LOCATED AT 2300 CLEVELAND AVENUE WHEREAS, the Community Development Commission of the City of National City ("CDC") acquired the property bounded by Bay Marina Drive, Cleveland Avenue, 23rd Street, and Harrison Avenue (the "Property") for redevelopment purposes; and WHEREAS, during the process of demolition of buildings on the Property, the presence of hazardous materials was discovered, necessitating an environmental site assessment; and WHEREAS, the Center for Creative land Recycling ("CCLR") made available to the CDC a loan in the amount of $32,694 under its California Recycle Underutilized Site Brownfield Site Assessment Program, to fund a site assessment and characterization of hazardous materials on the Property; and WHEREAS, said loan is potentially forgivable, in the discretion of the CCLR; and WHEREAS, due to CCLR budget cycle constraints, the CDC was required to submit a signed loan agreement to CCLR by October 23, 2009; and WHEREAS, it is now appropriate for the Commission Board to ratify and approve the loan agreement. NOW, THEREFORE, BE IT RESOLVED that the Community Development Commission of the City of National City does hereby approve and authorize the Executive Director to execute a loan agreement for a forgivable loan in the amount of $32,694 with the Center for Creative Land Recycling to obtain funding to conduct a site assessment and characterization of hazardous materials on the property located at 2300 Cleveland Avenue. PASSED and ADOPTED this 15th day of December, 2009. Ron Morrison, Chairman APPROVED AS TO FORM: George H. Eiser, III City Attorney Passed and adopted by the Community Development Commission of the City of National City, California, on December 15, 2009 by the following vote, to -wit: Ayes: Commissioners Morrison, Parra, Sotelo-Solis, Van Deventer, Zarate. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: RON MORRISON Chairman, Community Development Commission ity Development Commission By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2009-294 of the Community Development Commission of the City of National City, California, passed and adopted on December 15, 2009. Secretary, Community Development Commission By: Deputy City of National City, California COMMUNITY DEVELOPMENT COMMISSION AGENDA STATEMENT MEETING DATE December 15, 2009 AGENDA ITEM NO. 22 (ITEM TITLE Resolution of the Community Development Commission of the City of National City ratifying and authorizing the Executive Director to execute a loan agreement for a loan in the amount of $32,694 with the Center for Creative Land Recycling to obtain funding to conduct a site assessment and characterization of hazardous materials on the property located at 2300 Cleveland Avenue PREPARED BY DEPARTMENT Colby Young Redevelopment Project Manager (x4297) EXPLANATION SEE BACKGROUND REPORT Environmental Review J N/A Financial Statement Approved By: The $32,694 loan amount may be forgiven by the lender if no project is developed within three years. Loan funds will pass through CDC staff for review and approval prior to payment of consultant. Account No. Finance Director STAFF RECOMMENDATION Ratify Loan Agreement BOARD / COMMISSION RECOMMENDATION N/A ATTACHMENTS ( Listed Below) Resolution No. ° o v " Loan Agreement A-200 (9/99)