Loading...
HomeMy WebLinkAbout2000-10-11 00-387 ORDERItem No nn-asr Date: October 11 2000 Item/Subfect: ORDER, Authorizing Etecution of Credit Enhancement Agreement --- Boyd Street Housing Associates, LP Responsible Department: Legal The City Council approved a Development Agreement with Boyd Street Housing Associates, LP for the construction of 32 residential units on a parcel of land between Boyd Street and Newbury Street The agreement provides that the City will give a to rebate for up to 15 years to amortize a $140,000 loan, at an Interest rate of up to 91/2%. Manager's Comments: Associated Information: Department Head City Manager Rnanoe Director Legal Approval: Cty Solicitor _Passage Final: Reading Page of Referral 00-387 _ Anignedw Councilor CITY OF BANGOR (MU.) ORDER, Authorizing Execution of Credit Enhancement Agreement --- Boyd Street Housing Associates, LP By Op Of y cmwxd of me cay o/ wngon ORDERED, THAT the City Manager is hereby authorized, on behalf of the qty of Bangor, to executh a Credit Enhancement Agreement with Boyd Sheet Housing Associates, LP. Said document shall be in a final form approved by the City Solicitors office In substantially the form as attached hereto. IP CIW COUNCIL October ll, 2000 Motiao to Suspend the Rules to Consider Council Order 800-387 Made and Seconded. Rules Suspended Motion far Passage Made and. Seconded Passed TTY RM Title, Authorising ffiecution of Credit Enhancement RSteecent - Boyd Street Noosing Associates, LP llsslgnad m C ncllcr PROM 'DRUMMNI W0009N To 207 96 M 7 sees. 10-11 05ROPn a251 P.01/02 00-38] AGREEMENT II11S CREDIT ENHANCEMENT AGREEMENT dated as of October 11, 2000 between the City of Bangor, Maine (the'TOwn"), u municipal holy corporate anti politic and a political subdivision of the Surto of Maine, and Boyd Street Housing Associates, LP, a limited partnership duly organized and existing under the laws of the Score of Maine, with a place ofbasiness in Rockport, Maine (the" Partnership'). WITNESSED] I'HAT WIIBRBAS, the City has previously approved by Council Order the return to the Partnership of real estate taxes paid on the Project in an amount sufficient to amortize a $140,000 loan at an interut rote ofup to 9.5%over a norm of fifteen (15) years, mid W1112REAS, Camden National Bank has agreed to make such a loan to the partnership, secured in part by an Assignment of this Credit Enhancement Agroenum and uvichurcu i by a I'imnissory Note of approximately even data containing the foregoing terms and an intaeslrale of 9.5% (the "Camden National Bank Now"); and - WHRRRAS, de City also shall agree in annually consider appropriating funds from the City's general fund to provide financial assistance to the affordable family housing Project being developed by the Partnership in the wont that the City is unable to remm the properly tax revenues as described above to the partnership; NOW, TI IBRRPORP., in consideration ofthe foregoing and in consideration of the mutual premises and covenants set Ibrth hemin, the parties hereby agroc as follows; ARTICLE DEFINITIONS Section LI. Definitions. I'he Icons ciclined in this Article 1 shall, for all purposes of this Agreement, have die meanings herein specified, unless the context clearly requires otherwise. "Agreement" means this Credit linhancommrt Agreement between the City and the partnership dated as at the dale set forth above. " Partncmhip" has the meaning given such turn in the that paragraph hereto. "Partnerehip Tax Revenues" means in eneh year that this Agreement is in effect the amount actually paid by the partnership to the City on account of real estate taxa, but in no evert a governor amount than that required to maks payments which would fully amortize a FROM :eaLYl'eN0 tjGGVS H I 207 905 9997 2000.18_ 9 Men.ea� W-387 S140,0001ann at an interest cote of9.5%in semi-annual installments ovcra fifteen (15)year torn. Project"mcansihc land and improvcmcros owned by the partnership located at Boyd Street, Bangor, Maine, constituting the Parmcnhip's affordable housing development. "City" shall have the meaning given such term in the rovitals hereto. "Tex Payment Dote" means the device which any PartnemhipT'ax Revenues are paid by the Partnership to the City. ARTICLE 11 PAYMENT REQUIREMENTS Section2.1. Payments for Affordable Honstn¢_Development Pa3torm. The City shall pay the Partnership Tax Revisions, at the Partnership's direction, to Camden National Bank for application to die Camden National Bank Note within ten (10) days of each Tax Payment Date. In the event that the City Is unable for any reason, including without limitation lack of legal authority or enforceable obligation, to me rn the Partnership Tax Revenues by paying them as provided above, then the City shall consldm an appropriation of a like amount from the City's General Fund from tmc to time throughout he term of this Agreement (provided, however, that in no event shall the amounts so appropriated exceed die Partnership Tax Revenues and any appropriation shall be subject to the City's regular appropriation process), and shall pay said amount b Camden National Bank for the purposes described above. ARTICLE Ill PAYMENT OBLIGATIONS Section 3.1. Fallure to Make Payment. In the event the City should fail to, or be unable to, make any of the payments required under the provisions of this Agrecmont, the filum or installment so unpaid shall continue as s limited obligation of die City, under the toms and conditions hereinafter set forth, until the amount unpaid shall have been fully paid. llic Partnership shall have the right to initiate and maintain an action, to spool fcally mdorce the City's obligations hereunder, including without limitation, die City's obligation to pay Partnership Tax Revenues as described above.. 2002.10-11 04. SOPH #249 P.04�- 00-307 SMOm13.2. Mosmetafravabents. The payments provided far in this Agmcmcnt shall be paid in immediately available funds directly W the Partnership in the manner provided above. Section 3.3. Limited Obl'vatian, Tine City's obligations of payment hereunder shall be limited obligations of the City, shall not constitute a general debt or a general obligation on the part of the City or a general obligation or charge against or pledge of the faith and cmdit or taxing power of the City and shall be payable solely from the partnership Tax Revenues received by the City, and any earnings thereon pledged therefor under thisAgroemun. Thu Agreement shall not directly or indirectly or contingently obligate the City W levy or hr pledge any form oftxxation whatever therefor excepting the City's obligation to assess in good faith property taxa upon the property. Section 3.4. 91441 on of Partnership to Pay Real P v I •'1' The Partnership shall pay all real estate taxa to the City when duo. ARTICLE IV DEFAULTS AND REMEDIES - Section 4.1._XnId gQefault Each of the following events shall censtlule and be miles of to in this Agreement as an Event of Defaulb a. Any failure bythe City to pay any amounts dues to Purinmship when the some shall become due and payable; b. Any failure by the City to make any payment W or for the account of the. Partnership as and when due; c Any failure by the City or the Partnership to observe and perform in all materiel respects any respective covenant, condition, agreement or provision contained herein on tine Part ofthe City or the Partnership respectively to be observed or performed which failure is not cured within thirty (30) days following written notice draeof, and d. If a deoree or order of a court or silently or supervisory authority having Jurisdiction inthe promises shall appoint uonservamrorreceiver ar liquidator forum city, or if any insolvency, readjustment of debt, marshaling of assets and liabilities or similar 800.10-11 04: 50Pn #249 P. 06/09 80-38] proceedings for the winding up or liquidufion Of 410 City's affairs shall have been entered against the (.Sty or if the City shall have consented to the appointment of a conservator or receiver or I i qu i datur in any such proceedings of or relating to the City or of or rcl ating to all or substantially all of its property, including without limitation the filing of a voluntary pefition in bankruptcy by the City or the failure by the City to have a politics in bankruptcy dismissed within aperiod of 90 consecutive days following its filing or in the event an order for release has been succeed under the Bankruptcy Code with respect to the City. Section 4.2. Remedies on Default. Whatever any Event of Default described in Section 4.1 hereof shall hove occurred and be continuing, the nondefaulting parry may take any one or more of the following remedial steps following any applicable cure period: a. The nondefaulting party may take whatever action at law or at equity as may appear necessary or desirable to collect the amount then due and thercaller to become due, U) specifically onfomn the performance or observance of any obligations, agrccmonts, or covenants ofthenondefaulfingpartyundcrthis Agreement and any documents, instruments, and agreements contemplated hereby or to enforce any rights or mmcdics available hemunder,and - b. The partnership or the City shall also have the right to exercise any rights or remedies available under the laws of the State of Maine. Ali'fICLE V EFFEC77VE DA'Z'E, TERM AND TERMINATION Sectlo115.1. EffectillisPidCapliTeim. TlsisAgreement shall become effective upon its execution and delivery by the parties hereto and shall remain in full force from the date hereof and shall expire on the date on which the City $hall have returned or paid to or account of the partnership a cumulative. amount ofPannership Tax Revenues for a period offiftecn yeas in an amount sufficient to amortize the Camden National Dank Note. Section 5.2. Cancellation and Exelration of TBgl At the termination or other expiration of this Agreement and following full payment of all amounts due and owing to the partnership hereunder or prevision for payment thereof, the City and the partnership shell as ch execute and dcliversuch documents and lake of co use to betaken such actions as may be necessary to evidence the termination ofthis Agreement. 20W.10-11 09.5IPM 4249 P.06/3S 00.38] ARTICLE Vi ASSIGNMENT AND PLEDGE OF INTEREST Section 6.1 'onsent t Pled A t r Grm t of Sex 'N DLL¢re The City hereby acknowledges that the Partnership may pledge and assign its right, title and interest M. to and under this Agreement as collateral for financing for the Project, including without limimtion apledge or assignment to Camden National Dank to secure the Carden National nank Note, Although no obligation is hereby imposed an the Partnership to make such assignment or pledge. Recognizing this possibilily, the City does hereby around and agree to thepledge and assignment ofall the Partnorship's right, tide and interest in, m and under this Agreement and in, and to the payments to be made to Partnership hereunder, to third parties as collateral or security formclebtedness orotherwise, on one or more ocesslOm during the term hereof. The City agrees to execute and deliver any assignmrnts,pledge agrcemenm,consents oothercmfl mationarcquiredbytheprospective pledgee or assignee, including without limitation recognition of the pledgee or assignee as the holder Of of tight, fide and interest herein and as the payee of amounts due and payable hereunder and may and all such other documentation as shall confirm to such pledgee or asaignee the position of such assignee in pledgee and the irrevocable and binding nature of this Agreement and provide to the pledgee coassignee such rights and/mrcmedios as it may deem necessary for the eamblishing, perfcetion and protection of its interest hotels. Section 6.2. AABl@l@.SAI The Partnership shall have the unrestricted right to transfer slid assign all or any Portion of its rights in, to and under this Agreement, at any time, and from time to time, as Partnership may, in its sole discretion, deem appropriate. ARTICLE VII MISCELLANEOUS Section 7.1. Si In the event of the dissolution of the City or the Parmership, the covenants, stipulations, Promises and ngmcments ad forth herein, by or on behalf of or for the benefit of stmh party shall bind or inure to the benefit ofthe successors and assigns thereof from time to time and any artily, officer, board, commission, agency or malrumenmlity to whom or to Which any power or duty Of such party shall be transferred. aaaa.ra-rt SOCUM 72. kartlea in latere5j. 00-x7 EXCeptashocamOtherwisespecilicallyprovidcd,nothing in WisAgmenucatexpreased or implied is intended or shall be construed to Confer upon any Plana, into or corporation Other than the City and the Partnership any right remedy or claim under or by reason of this Agmcment it being intended that this Agmemem shall he for the sole And cxclusivnbenefit of the City and the Partnership; provided, howwer, that if the payment obligations of the city TO the Partnership hereunder are held by a final and binding proceeding to be illegal or invalid, this Agreement shall temdnate. In such event, all obligations of the pmtics shall temtinate. And uo party shall have any further liability to the other hereunder. Section 7.3. Severatiffty. Except As otherwise provided herein, in arae any one or mora ofthe provisions ofthis Agreement shall, fm any reason, be held to be illegal or invalid, such illegality M invalidity shall notaffect any Other provision of this Agmement And this Agreement shall be constmed and enforced as if such illegal o invalid provision had not been contained herein. Seefion7.4. No ersanal Liability of Off' I fn City. No covenant, stipulation, obligation m agreement ofthc City contained heroin shall be deemed to be a covenant, stipulation or obligation of any pmsent or forum elected or appointed circle], officer, agent, servant or employs of the City in his or ho individual capacity and ncidtcr the members of the City Council of Ute City, nor Any official, officer, employee or agent of the City shall be liable personally with respect to this Agreement or be subject to any personal liability or accountability by reason hemof section 7.5. ('alawparts. 'Mils Agmement may be streamed In any number of counterparts, en rh of which, what so executed and delivered, shall be on original, but such countarpartsshall together Constitute but one and die same Agmemcnt. Section 7.6. -ravers' o L The laws of Ute State OfMainesltall govern the construction and enforcement fthis Agreement in all mspects. Section 7.7. Notle All notices, certificates, requests, requisitions o Otho communications by the City m'the partnetslup pursuant to this Agreement shall be in writing and shall be sufficiently Fin :pRlgplm Lppp N 1p 201 945 4447 1000.10-11 04:51 1249 P.O0 00.Ja] given and shall dccmed given whmrmailod by fitstelass mail, Posteg intpoid, addressed as follows: If to the City City Manager City of Bangor 73 Harlow Stren Hangar, ME 04401 If to the Partnership: Boyd Strect Housing Assuciates, I.P 247 Commercial Street Rockporl,ME 04856 With a copy to: Drumm rid Woodrum & MacMahon P.D. Box 9781 245 Commercial Street Portland, ME 04101 Attention: John S. Kaminski Either of the patties may, by notice given to the other, designate any further or different addresses to which subsequent notices, certificates, requests or other communications shall be sent hereunder. Section 7.8. Amendments. This Agrcrvneat maybe amended only with the exprew written consent ofall of the parties hereto. Section 7.9. Bmflt of Assiane . or pleshroes, The City agrees that this Agreement is executed in part to induce assignees or pledgees to provide financing for the Noct and accordingly all covenants and agreements on the part. ofthe City as to the amounts payable hereunder arc hereby declared to be for the benefit of any such assignee or pledgee from nine to time of the I'Micrship's right, title and interest herein. 20¢0.10-11 Section 7d0. Integration, 00-36) This Agreement completely and fully supersedes all other prior a conecmporanmon understandings or agaanen%bot) written end oral, between the City and the Partnership rotating to the specific subject matter of this Agreement and the transactions contemplated hereby. IN WITNESS WHEREOF, the City and the Partnership have caused ibis Agreement to be executed in their respective corporate names and their respective corporate seals to be hereunto affixed and created by the duly authorized officers, all us of the date first above written. WITNESS: CITY OF BANGOR BOYL STREET HOUSING ASSOCIATES, LP By JMC PARTNERS, LLC, Its General Partner it; hhmager