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Home My WebLink About96-22 RDA Resolution RESOLUTION NO. RDA 96-22 A RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF TEMECULA ACCEPTING GUARANTEES FOR THE COMPLETION OF PUBLIC IWROVEMENTS FOR THE OLD TOWN AREA THE REDEVELOPMENT AGENCY OF THE CITY OF TEMECULA DOES HEREBY RESOLVE AS FOLLOWS: Section 1. The Redevelopment Agency of the City of Temecula does hereby find, determine and declare as follows: a. On August 31, 1995 the Agency and T.Z.B.G., Inc. ("Participant") entered into that certain Owner Participation Agreement ("OPA"). Among other provisions, the OPA provides for the development of the Old Town Entertainment Project and requires the Participant to construct and install certain public improvements as specified in the Description of Public Improvements, Exhibit No. 3 of the OPA ("Public Improvements"). The OPA further provides that the Participant would assume sole and full responsibility and all financial risk for financing the land acquisition, design, construction, and operation of the Public Improvements to be constructed and installed in strict accordance with the provisions of the OPA. Under the OPA, Agency would contribute $5,987,700 to the Project. b. On March 26, 1996, the Agency and Participant entered into that certain agreement entitled "First Amendment to Owner Participation Agreement" ("First Amendment"). The First Amendment: (1) Amends Section 4.2 to provide that the Agency will make an additional contribution to the Project of $1,470,850, representing the amount of assessments for the Western Bypass for certain property owners not related to the Project which the Agency agreed to pay on their behalf, bringing the Agency's contribution to the Project to $7,458,550; (2) refines to the description of the Public Improvements in the Description of Public Improvements, Exhibit 3 to the First Amendment; (3) provides for Agency consent to the assignment of Participant's obligations to design, install and construct the Public Improvements and Participant's right to receive payment for certain Design Work in the event of termination of the OPA prior to the commencement of the construction of the Public Improvements to Fluor Daniel Temecula and the assumption of such obligations by Fluor Daniel Temecula; (4) provides for the conveyance by the Agency to the Participant of certain real property owned by the Agency at 41953 Main Street, Temecula; and (5) approves a change in name of the Participant from "T. Z.B. G., Inc. " to "Temecula Entertainment Valley, Inc." As used in this Resolution, the term "OPA" shall mean the original Owner Participation Agreement, dated as of August 31, 1995, as amended by the First Amendment to the Owner Participation Agreement, dated as of March 26, 1996. Resos.RDA\96-22 C. The Amendment to Section 4.2 E. of the original OPA revised the timing and conditions precedent to the Agency maldng its combined contribution of $7,458,550 to the Project, as such contribution is qualified by the terms of the OPA. Section 4.2 E. of the OPA, as amended, specifically provides: "E.Agency shall pay the sum specified in Subparagraph A [$7,458,550, as qualified by the terms of the OPA] to Participant upon ten (10) business days notice following completion of the following events..... : Ill.The financing for the Entertainment Facilities has closed or the Agency determines in its sole and unfettered discretion that commitments are in place that assure its closing; and 112.The Participant provides the Agency with fully executed agreements guaranteeing in a form acceptable to the Agency that (I) the Public Improvements will be built, and (ii) providing that an indemnity or indemnities shall be provided in favor of the Agency to the effect that those parties performing work on the Public Improvements will defend, indemnify and hold harmless the Agency from claims arising from the design and construction of the Public Improvements, which agreements for the Public Improvements will be consistent with the provisions of this Article. " d. The Public Improvements described in the OPA will be funded by the bonds to be issued by the Old Town/Westside Community Facilities District Financing Authority ("CFD"). The City of Temecula will acquire the rights of way for the roadway improvements and provide certain design services on behalf of the CFD. Construction of the Public Improvements will be managed by Fluor Daniel, Inc., pursuant to a Construction Management and Supervision Agreement with the CFD. In addition to the obligation of the Developer under the OPA to complete the Public Improvement and be responsible for all cost overruns, a number of additional assurances and guaranties are in place to provide for completion of the Public Improvements if unforseen events affecting construction occur: (1)The construction budget being funded by the bonds to be issued by the Old Town/Westside Community Facilities District Financing Authority provides for a uncommitted construction contingency of $700,000.00; (2)Fluor Daniel, Inc., the Construction Manager retained by the CFD has guaranteed to complete construction of the Public Improvements for a fixed price and within a specific time Resos.RDA%96-22 schedule, except for change orders required by the construction contracts or increased costs due to environmental subsurface conditions, governmental actions, or events of force majeure; (3)Fluor Daniel will maintain builder's risk insurance on the Public Improvements being constructed which would protect against destruction of the Public Improvements during construction by the perils of fire, lightening, riot and civil commotion, explosion, smoke, hail, windstorm, earthquake, and flood; (4)The Developer, Old Town Entertainment, LLC, will guarantee the completion of the Public Improvements, except for the Western Bypass, up to the amount of $7.5 million (which amount represents the Agency's contribution to the Project) including the specific costs not guaranteed by Fluor Daniel or covered by insurance, and will back up the guarantee with a commitment to maintain sufficient private financing funds to be available for completion of the Public Improvements in an amount equal to the difference between the uncompleted value of the guaranteed improvements and $7.5 million; (5)In the event the proceeds of the builders risk insurance policy and the guaranty of the Old Town Entertainment LLC are insufficient to meet the contingency occurring, Fluor Daniel, Inc., will contribute the amount of its construction management fee up the amount of $1.1 million to meet the contingency; (6)Fluor Corporation, the international parent company of Fluor Daniel, Inc., will guarantee the obligations of Fluor Daniel, Inc. Section 2. The Board of Directors of the Agency hereby approves that certain agreement with Old Town Entertainment LLC entitled "Letter Guarantee to Construct Public Improvements" in substantially the form attached hereto as Exhibit A, and directs and authorizes the Chairperson to execute said agreement on behalf of the Agency subject to such changes in form as may be approved by the Executive Director and the General Counsel. Section 3. The Board of Directors of the Agency hereby finds that upon the execution and approval of the guaranties described in Section l.d. of this Resolution, the requirements of Section 4.2 E. of the OPA, as amended, will be satisfied. Resos.RDA\96-22 Section 4. The Secretary shall certify the adoption of this Resolution. PASSED, APPROVED AND ADOPTED by the Board of Directors of the Redevelopment Agency of the City of Temecula on November 26, 1996. Patricia H. Birdsall, Chairperson ATTEST: June . Greek, CMC Agency Secretary/City Clerk [SEAL] STATE OF CALIFORNIA COUNTY OF RIVERSIDE ss CITY OF TEMECULA I, June S. Greek, Secretary of the Redevelopment Agency of the City of Temecula, do hereby certify that the Resolution No. 96-22 was duly and regularly adopted by the Board of Directors of the Redevelopment Agency of the City of Temecula at a regular meeting thereof, held on November 26, 1996, by the following vote, to wit: AYES: 3 AGENCY MEMBERS: Birdsall, Ford, Lindemans NOES: 0 AGENCY MEMBERS: None ABSENT: 1 AGENCY MEMBERS: Roberts ABSTAIN: 1 AGENCY MEMBERS: Stone reek, CMC Agency Secretary/City Clerk Resos.RDA\96-22 HOb 21. 1096 12:40PI COL CAS?L£ EXHIBIT "A" IICHOL$01, LLP, Novm,k~r ~11, 1996 2825 P. 2/4 43174 43174 T~ 21. 1996 12:40PH C0~ CAS?L~ JlCHOLS0~ LLP, I~ 2825 P. 3/4 Novmld~ 21. 1996 ee,,-*b,,~ m ~veat of d~mdt. Spm'ficall~, ~cdotJ 7.10 of the CIASA ptovidns: othnr dma paynut or nonoy, shall not consdraM dd'euR h,H".'d~' if red Uo tho f~dlldeK ~f~ "n~'b'qc, with mzy ocdm' m- roqued d nny &,o-.,~ t ' mlbork~. a~ of indiroc~ of ImF ~lm~, wiMther oc noC of Ibo iamo dam or kind as thoil Ipe,4_ f~cdly mpocdvdy. md which by du, .incise of :uMad)!. dlJl&,mco. me Amhorit), ac ¢~.-~lerlP.- dst~s) ~ mar this lCJ~A] Apunu~ shall IM adJumd ,o ll~.ount Jot my forco mfdeuro dday .... To ndtipm dus cor-tqu-.~ce, Olr · fOrCo nudem'. event. Fluor Druid. pit'Mint So dl. C),tSA. lus..!pal to _!~o~_r..imuuc] b qNN:ified prb such a lb, lijhtnJM, dot md dvll Ldp. oq,~ qr~ u) th. full imar~ble value or tbo PrOl)a~. mbjoct to n $10.OG0 deductible (,tcq)t tlut ;h. ds ~,f,.'*tb]. A)c mrthquab shall be $lO0,000 nd th. d,dEn'bi, h~ flood shall b S2S,000}. The CitT. b C)ld Town/Wutsid, Con~,-,.~ Fullitin Di~d~ Fian~nf Authority ~ l)htrtct No. I CC)kl Town ATea Publie L'quov. mmu) nnd th, AMboci~ will be unmd if h ord,r ,o nds~y th. C~ty asd ,b, A&,,n~-y Ihat ,ho pdd~ w ~ _,),~__.-- win b oumtnEtod thst, upon t, rnmtion. IIm Old Town GntmaJnment. L.L.C (tim 'Lt~*). wlR !lrt. to(k) all orth. fbllowh~ on behalf of TEV': 21. 1996 12:41PH CO~ CASTL£ HICHOLSO~ LU, J0.2825 P. 4,/4 B~m), lVOVidd Ibtt h mnom of privm fima:inl t'~quir~d to bo Jdt undnwu INn'ram: ID this Liner Gum'my dull not eKco011 FIJ millire. dommmmiou ~ Ibo undrp~ pdvm flmuclpg M Ib~ test Is koul B Ibovu. 7]nd]~LA ]D~FI~T~ VALLEY, INC. By: Ti0e: