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Home My WebLink AboutC-2198Iwo Cio`�I a4$ DOWNTOWN 2000 - COMMERCIAL FACADE REHABILITATION PROGRAM PROMISSORY NOTE AND LOAN AGREEMENT between THE ARCADIA REDEVELOPMENT AGENCY a public body, corporate and politic and Larry & Peggy Lachner September 14, 2005 • 1. PARTIES AND DATE OF AGREEMENT This Promissory Note and Loan Agreement ( "Agreement ") is made this 14th day of September 2005, between (1) The Arcadia Redevelopment Agency ( "Agency "), a public body, corporate and politic, and (ii) Larry and Peggy Lachner ( "Property Owner'), 100 N. Santa Anita Avenue. 2. RECITALS 2.1 On March 19, 1996, the Agency's governing board ( "Board ") adopted a Minute Order approving the Agency's "Commercial Facade Rehabilitation Program" ( "Program "). At the same time, the Agency's governing board approved the "Downtown 2000 - Commercial Facade Rehabilitation Program Guidelines" ( "Guidelines "). The Guidelines set forth specific requirements and conditions relative to the Program. The Guidelines are attached hereto as Exhibit A and incorporated into this Agreement by this reference. In the event of any conflict or inconsistency between this Agreement and the Guidelines, this Agreement shall supersede and control, but only to the extent of such conflict or inconsistency. 2.2 The Owner is the fee owner of that certain real property commonly known as 100 N. Santa Anita Avenue, Arcadia, CA 91006, more particularly described in Exhibit A attached hereto. Located upon the Property is that certain business known as Dynamo Constructors, Inc. ( "Business "), which is a construction company. 2.3 The Property is located within the Agency's Central Redevelopment Project Area ( "Project Area "). The Project Area is subject to the terms and conditions of the Central Redevelopment Project Area redevelopment plan ( "Redevelopment Plan "), as amended. The Redevelopment Plan, as amended, is hereby incorporated by this reference. 0 0 2.4 The Property Owner desires to participate in the Program and the Agency desires to allow such participation, subject to the terms and conditions of this Agreement and the Guidelines. 3. TERMS 3.1 Program Rebates Subject to this Agreement. The Owner shall execute this Agreement and Trust Deed (hereinafter defined) at or before the time that the Owner first receives any funds from the Agency pursuant to the Program. The Agency and the Owner acknowledge that all amounts paid to the Owner pursuant to the Program shall be subject to the terms and conditions of this Agreement. All amounts rebated to the Owner pursuant to the Program shall be hereinafter collectively referred to as the "Loan". The Loan amount is $36,056.69. The Loan shall not bear interest unless any portion of the Loan which may become due under this Agreement is not paid when due. At that time, the unpaid amount shall accrue interest at the rate of ten percent (10 %) per annum or the maximum rate allowed by law, whichever is less. No payments shall be due on the Loan until an Event of Default as defined in Section 3.2.1 occurs. 3.2 Loan Repayment or Forgiveness. The Loan shall be repaid, in full or in part, or forgiven as provided in Sections 3.2.1 through 3.2.3 below. 3.2.1 Event of Default. For purposes of Sections 3.2.2 and 3.2.3, an "Event of Default' shall mean the occurrence of any of the following: (i) The Property Owner fails to maintain the property noted in Section 2.2 in a commercially reasonable fashion, as determined in the Agency's reasonable discretions, or ceases operation of said Business, for any reason whatsoever. The foregoing notwithstanding an Event of Default will not be deemed to have occurred if a cessation of operation is for a period of less than fourteen (14) days once every three (3) years, and is for the purposes of refurbishment or repair of the Property, or if one or more of the tenants in the owner's building leaves in the ordinary course of business, and is replaced with a tenant permitted by the Arcadia Municipal Code within a ninety (90) day period, or if the owner demonstrates in writing to the sole satisfaction of the Agency that he /she has acted reasonably and in good faith to market and release the owner's tenant space(s) but is unable due to reasons outside the owner's control to release the tenant space(s); (ii) The sale, transfer, or voluntary or involuntary conveyance of the Property; provided, however, that in its sole and absolute discretion, the Agency may allow the transferee or assignee to assume the Property Owner's obligations hereunder, subject to such requirements and additional agreements as the Agency may reasonably require; or (iii) The Property Owner's uncured material breach of any term or either this Agreement or the Guidelines. 3.2.2 Forgiveness of Loan. If no Event of Default occurs within a period of forty -eight (48) months ( "Loan Term ") following the latest date on which the Property Owner receives any rebates pursuant to the Program, then the Loan shall be forgiven and discharged. 3.2.3 Partial Repayment of Loan. If an Event of Default occurs prior to the expiration of the Loan Tenn, then the Property Owner shall pay to the Agency, within thirty (30) days following the Event of Default, a portion of the Loan ( "Repayment Amount "), calculated as follows: Repayment Amount = Loan times [Number of months remaining between the Event of Default and the expiration of Loan Term, divided by the total number of months of the Loan Tenn.] As an example, if the Operating Term is for a period of thirty -six (36) months, the Loan is in the amount of $20,000 and the Event of Default occurs during the 26th month of the Loan Term, then the Repayment Amount shall be the sum of $5,555, computed as follows: $20,000 x (36-26 ) _ $5,555 36 3.3 Non - Assignability. The Property Owner may not assign any of its rights or obligations under this Agreement without the express written consent of the Agency, which may be given or withheld in the Agency's sole and absolute discretion. No unpenmitted successor or assign of the Property Owner's rights under this Agreement shall be deemed to possess or be entitled to exercise any such right; provide, however, that the obligations of this Agreement shall nonetheless be binding upon such unpermitted successor or assign. 3.4 Defaults. The Property Owner shall be in default of this Agreement if the Property Owner breaches any term of this Agreement or the Guidelines. Upon such default, the Agency shall send written notice to the Property Owner informing the Property Owner of the default. If the Property Owner fails to completely cure the default within ten (10) days after receipt of such notice, then the Agency may exercise all rights and remedies available to it at law, in equity, or under this Agreement, including the right to terminate the Property Owner's participation in the Program. 3.5 Notices. All notices required or allowed by this Agreement will be in writing and addressed as set forth below. Notices shall be deemed received upon (I) actual receipt by the intended recipient if the method of delivery is personal service, messenger service or facsimile • transmission, (ii) actual receipt by the intended recipient if the method of delivery is overnight delivery service such as Federal Express or the like, or (iii) three business days after deposit in the United States mail, postage prepaid, return receipt requested. Notices shall be addressed as follows: If to Agency: The Arcadia Redevelopment Agency 240 West Huntington Drive Arcadia CA 91006 -3104 Attn: Executive Director Telephone: (626) 574 -5415 Facsimile: (626) 447 -3309 With a copy to: Stephen P. Deitsch, Esq. Best Best & Krieger LLP 3750 University Avenue Riverside, CA 92501 Telephone: (951) 686 -1450 Facsimile: (951) 686 -3083 If to Property Owner: Larry & Peggy Lachner 100 N. Santa Anita Avenue Arcadia, CA 91006 Telephone: (626) 447 -5190 Facsimile: (626) 447 -2462 Any party's address for notices may be changed by written notice given as provided herein. 3.6 Attorneys' Fees. If any action or proceeding is instituted by any party to this Agreement, which action or proceeding is in any way whatsoever related to the interpretation or enforcement of this Agreement or the Guidelines, the prevailing party in such action or proceeding shall be entitled to recover from the other, as an element of its costs of suit and not as damages, its actual litigation costs and reasonable attorneys' fees, including costs and attorney's fees on appeal. 3.7 Modifications; Integration. This Agreement and the Guidelines constitute the entire agreement and understanding of the Agency and the Property Owner with respect to the matters herein discussed. It supersedes all previous oral or written agreements concerning the 9 same. This Agreement may be modified only by a written document executed by the appropriate authorities of the Agency and the Property Owner. The Agency's Executive Director is authorized to make minor amendments to this Agreement with the concurrence of the Attorney or Agency Counsel. 3.8 Indemnity. The Property Owner agrees to indemnify, defend and hold the Agency, the City of Arcadia ( "City"), and all employees, officers and representatives of the Agency and /or the City, free and harmless from any and all liability arising from or related to the Property Owner's participation in the Program. The Property Owner agrees and acknowledges that the Agency and/or the City are not responsible for any of the work on the Property Owner's Business, including but not limited to, the design work of the architect, the construction drawings, the course of construction, the quality of the construction work, and/or any claim or lien related to the construction by any third party, including but not limited to, the architect, the contractor or its subcontractors, or other third party lenders. Dated: T" Approved as to form: Agency Attorney Dated: 2-& -of THE ARCADIA REDEVELOPMENT AGENCY By: --wily Its: Executive Director 0 N W Q /F- TW i x W 3nN3Ad 3nN3nd a LU C J co W Z r ViINV ` iNVS w z 0 z H 1 1 1 1 1 1 1 1 1 1 1 IHI1 1 1 1 ^C W E Q cu (0 CD Z O i Q N C O U O J W a U) 0 z Z