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Home My WebLink AboutC-3308 - Loan Agreement for Green Acres End-User Retrofit WorkAMENDMENT TO LOAN AGREEMENT WITH BLUFFS HOMEOWNERS ASSOCIATION FOR GREEN ACRES END -USER RETROFIT WORK THIS AMENDMENT is made and entered into as of the ?$6 day of January, 2000, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation and Charter City, referred to as "CITY ", and the Bluffs Homeowner Association, a private Corporation hereinafter referred to as "THE BLUFFS." RECITALS A. The Orange County Water District (OCWD) has developed a conservation program to provide reclaimed water to various areas served by OCWD in Orange County. This program is called the Green Acres Project (GAP). The City has agreed to participate in GAP to help conserve the available water supplies and has committed to provide GAP water to some users in the City. B. On September 27, 1999 the CITY approved a loan for $145,000.00 to be paid back over a 10 -year period based on the terms and conditions set forth in the Agreement. C. On December 22, 1999 THE BLUFFS submitted a written request to the CITY to allow a $100,000.00 pre - payment of the loan. D. The CITY desires to accept the $100,000.00 pre - payment and will agree to new five -year terms and conditions as set forth in amended sections below. E. The CITY'S acceptance and receipt of the $100,000.00 pre - payment results in an outstanding loan principle of $45,000.00. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties that the following section of the Agreement shall be amended as follows: 3.0.3 The reimbursement period shall be 5 years. 3.0.4 Loan payments shall be $10,799.35 per year, and shall be made in accordance with the "Revised Reimbursement Amortization Schedule" shown in Exhibit "A." Except as expressly modified herein, all other provisions, terms, and covenants set forth in AGREEMENT shall remain the same and shall be in full force and effect. 1 IN WITNESS WHEREOF, the parties have executed this Amendment on the date first written above. APPROVED AS TO FORM: ,7 i Robert Burnham, Esq. LaVonne Harkless City Clerk f:\users\cat\shared\maty\bluffs loan contract - revised.doc CITY OF NEWPORT BEACH A municipal corporation Homer Blu au City Manager The Bluffs Homeowners Association A private corporation Carlyle "Cork" Levinson, President Chuck Currier, Secretary EXHIBIT "A" REVISED REIMBURSEMENT AMORTIZATION SCHEDULE City of Newport Beach Green Acres Reclaimed Water Project Bluffs Homeowners Association Retrofits Loan Principal: $45,000.00 Required Pmt: $10,799.35 Interest Rate: 6.400% Est. Total Pmts: $53,996.73 Term (Years): 5.00 Est. Total Int: $8,996.73 Payment Remaining Cumulative Payment yment Number Amount Principal Interest Principal Interest Date 1 $10,799.35 $7,919.35 $2,880.00 $37,080.65 $2,880.00 10/01/2000 2 $10,799.35 $8,426.18 $2,373.16 $28,654.47 $5,253.16 10/01/2001 3 $10,799.35 $8,965.46 $1,833.89 $19,689.01 $7,087.05 10/0112002 4 $10,799.35 $9,539.25 $1,260.10 $10,149.76 $8,347.14 10/0112003 5 $10,799.35 $10,149.76 $649.58 $0.00 $8,996.73 10/0112004 F fU. �"PP � Ce 9�a7�99 t4A LOAN AGREEMENT WITH BLUFFS HOMEOWNERS ASSOCIATION FOR GREEN ACRES END -USER RETROFIT WORK THIS AGREEMENT is made and entered into as of the o2 day of September, 1999, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation and Charter City, referred to as "CITY ", and the Bluffs Homeowner Association, a private Corporation hereinafter referred to as "THE BLUFFS." RECITALS A. The Orange County Water District (OCWD) has developed a conservation program to provide reclaimed water to various areas served by OCWD in Orange County. This program is called the Green Acres Project (GAP). The City has agreed to participate in GAP to help conserve the available water supplies and has committed to provide GAP water to some users in the City. B. The OCWD has funded and constructed a pipeline in Newport Beach to serve reclaimed water from GAP to several planned end -user sites, which include but are not limited to the following: Big Canyon Country Club, Bluffs Homeowners Association, Bonita Creek Park, Corona del Mar High School, Eastbluff Park, Eastbluff School, Jamboree Road street medians and Newport Beach Country Club (SITES). The CITY and the respective end -users have executed end -user agreements for GAP water service to the SITES. C. CITY agreed, through a September 27, 1996, end -user agreement, to provide GAP water service to THE BLUFFS at a price not -to- exceed 80% of the City's retail rate for potable water. At the time of approval, the CITY committed to loan THE BLUFFS the funds necessary to accomplish on site retrofit improvements to enable THE BLUFFS to receive and use GAP water (the "RETROFIT "). The commitment was subject to CITY approval of an agreement to repay the loan. THE BLUFFS intends to make payments on the loan in whole or in part from the reduced costs of GAP water. D. On March 18, 1999, THE BLUFFS submitted a written request for a $145,000.00 loan to accomplish the RETROFIT, and requested that the CITY prepare the necessary documents to accomplish the loan. City staff has reviewed and approved the loan request. E. CITY has determined that it is in the best public interest to provide for water conservation in the CITY by participating in the GAP and that THE BLUFFS participation in GAP provides a public benefit by reducing demand for potable water. F. CITY desires to provide a loan for $145,000.00 to be paid back over a 10 -year period based on the terms and conditions set forth in this agreement. 1 0 NOW THEREFORE, in consideration of the covenants, conditions and promises contained herein, follows: 41 facts recited above and the the parties hereby agree as 1.0 Within 60 days following the execution of this agreement THE BLUFFS shall have completed the RETROFIT of their facilities in accordance with their loan request and make them ready to receive the reclaimed water. 2.0 CITY shall obtain, or cause to obtain, all the necessary approvals for the RETROFIT from the California Department of Health Services, Orange County Health Care Agency, OCWD, and all other agencies having jurisdiction over the use of recycled water on THE BLUFF'S site. 3.0 CITY agrees to provide THE BLUFFS with a one -time loan of $145,000.00 and THE BLUFFS agrees to receive the loan solely for THE BLUFFS use on the RETROFIT, upon the following terms and conditions: 3.0.1 Effective date of contribution shall be October 1, 1999. 3.0.2 Interest rate of contribution shall be set at 6.4% per annum. 3.0.3 The reimbursement period shall be 10 years. 3.0.4 Loan payments shall be $20,075.89 per year, and shall be made in accordance with the "Reimbursement Amortization Schedule" shown in Exhibit "A." 4.0 The obligation of THE BLUFFS to make loan payments to CITY hereunder when due is absolute and unconditional and until such time as such loan payments have been submitted in full. THE BLUFFS shall not discontinue or suspend any payment when due, whether or not the retrofitted facilities or any part thereof are operating or operable, or its use is suspended, interfered with, reduced or curtailed or terminated in whole or in part. Such reimbursements shall not be subject to reduction, whether by off set or otherwise, and shall not be conditional upon the performance or nonperformance by any user entity or party of any agreement for any cause whatsoever. THE BLUFFS shall not assert any right of set -off or counterclaim against its obligation to make any, reimbursement under this AGREEMENT. 4.0.1 Any payment, which is not paid when due, shall bear interest at the rate of 1% per month for each month or portion thereof that the loan payment remains delinquent or the legal maximum interest rate, whichever is lower. 4.0.2 The CITY'S remedies upon the failure or refusal of THE BLUFFS to make payments when due under this AGREEMENT shall be governed by the provisions of this Section 4.0.2. (a) The CITY mays notice writing to THE BLUFFS, declare the entire principal amount of the outstanding loan payments and accrued interest thereon to be due and payable immediately. Upon any 2 0 0 such declaration the same shall become immediately due and payable, provided, however, that if at any time after the entire amount of the outstanding loan payments shall have been so declared due and before any judgment or decree for the repayment of the loan shall have been obtained or entered, THE BLUFFS shall deposit with CITY a sum sufficient to offset the outstanding loan payments due prior to such declaration and the accrued interest with interest on such overdue installments as provided herein, and any and all other defaults known to CITY shall have been made good or cured to the satisfaction of CITY or provision deemed by CITY to be adequate shall have been made therefore, then and in every such case CITY, by written notice to THE BLUFFS may rescind and annul such declaration and its consequences; but no such rescission and annulment shall extend to or shall affect any subsequent default or shall impair or exhaust any right or power consequent thereon; (b) The CITY may by any action, proceeding or suit, at law or in equity, enforce its rights against THE BLUFFS or any director, officer or employee thereof, and to compel THE BLUFFS or any such director, officer or employee to carry out its, his or her duties under this agreement and covenants required to be performed by it, him or contained herein; (c) The CITY may by suit in equity to enjoin any acts or things which are unlawful or violate the rights of CITY; (d) CITY may declare the loan in default and immediately begin charging THE BLUFFS, and THE BLUFFS agrees to pay, for GAP water at 100% of the CITY'S retail rate for potable water. The difference between the 80% and 100% rate shall be applied by the CITY to the balance of the loan, with all accrued interest penalties, until paid in full. THE BLUFFS agrees that CITY action to enforce its rights to repay the loan, upon default shall not be considered breach of or conflict with the September 27, 1996, end -user agreement. The provisions of this section shall supercede the provisions of that agreement. (e) No remedy herein conferred upon or reserved to CITY is intended to be exclusive. Every such remedy shall be cumulative and shall be in addition to every other remedy given to CITY under this AGREEMENT, or otherwise at law or in equity. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right or power may be exercised from time to time and as often as may be deemed expedient by CITY. 5.0 Any notice, instrument, reimbursement or document required to be given or delivered under this AGREEMENT shall be given or delivered by personal K 0 0 delivery or by depositing the same in a United States mail depository, First Class postage prepaid, registered or certified, and addressed as follows: If to THE BLUFFS: The Bluffs Homeowners Association P.O. Box 8167 Newport Beach, CA 92658 -8167 Attention: General Manager If to CITY: City of Newport Beach 3300 Newport Boulevard P. O. Box 1768 Newport Beach, CA 92658 -8915 Attention: City Manager or such other address as either party may direct in writing to the other. 6.0 Neither CITY nor THE BLUFFS shall be liable for the acts or omissions of the other. CITY and THE BLUFFS shall each protect, defend, indemnify and hold the other and its respective officers and employees harmless from and against any and all claims, actions, expenses, liabilities and losses incurred by one of the parties hereto as a result of any property damage or personal injury, including death, suffered or allegedly suffered by any person, and caused by any wrongful act or omission of the other party. 7.0 The term of this AGREEMENT shall terminate upon the repayment by THE BLUFFS of all payments as required in the 'Reimbursement Amortization Schedule" included in Exhibit "A" hereto or shall terminate upon complete payment of all principal and accrued interest if THE BLUFFS so choose to payback the loan at an earlier date. 8.0 No failure to exercise or delay in exercising any right, power or remedy accruing to either party on any breach or default of the other hereunder shall impair any such right, power or remedy, or be construed as a waiver of any such breach or default, and no waiver of any single breach or default shall be construed as a waiver of any other breach or default heretofore or thereafter occurring. 9.0 If any one or more of the agreements.or covenants or portions thereof required to be performed by or on the part of CITY or THE BLUFFS shall be contrary to law, then such agreement or agreements, such covenant or covenants or such portions thereof shall be null and void and shall be deemed separable from the remaining agreements and covenants or portions thereof and. shall in no way affect the validity hereof. CITY and THE BLUFFS declare that they would have executed this AGREEMENT, and each and every other article, section, paragraph, subdivision, sentence, clause and phrase hereof, irrespective of the fact that any one or more articles, sections, paragraphs, subdivisions, sentences, clauses or phrases hereof or the application thereof to any person or circumstances may be held to be unconstitutional, unenforceable or invalid. 19 10.0 This AGREEMENT may be executed in several counterparts, each of which shall be deemed an original, and all of which shall constitute but one and the same instrument. 11.0 This AGREEMENT and the rights and obligations of CITY and THE BLUFFS may be modified or amended at any time by an amendment hereto, which shall become binding with the written consents of the parties hereto. No such modification or amendment shall extend the loan payment dates, or reduce the rate of interest represented thereby, or extend the time of payment of interest, or reduce the amount of principal represented thereby. 12.0 This AGREEMENT represents the entire understanding of CITY and THE BLUFFS as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered by this AGREEMENT. This AGREEMENT shall be construed and governed in accordance with the laws of the State of California, and shall be construed as if drafted by both CITY and THE BLUFFS. 13.0 Neither this AGREEMENT nor any of the rights or obligations hereunder shall be assigned or conveyed by THE BLUFFS without the prior written consent of the CITY; and this AGREEMENT and any rights hereunder may be assigned by the CITY, in whole or in part, without the necessity of obtaining the prior consent of THE BLUFFS. Subject to the foregoing, all of the terms, conditions and provisions of this Agreement shall inure to the benefit of, and be binding upon, City, The Bluffs and their respective successors and assigns. IN WITNESS WHEREOF, the parties have executed this Agreement on the date first written above. APPROVED AS TO FORM Robert Burnham, Esq. City Attorney LaVonne Harkless City Clerk CITY OF NEWPORT BEACH A municipal corporation Vwa-4--* '---000� Homer Bludau City Manager The Bluffs Homeowners Association A private corporation Carlyle "Co Levinson, President Chuck Currier, Secretary 5 REIMBURSEMENT AMORTIZATION SCHEDULE City of Newport Beach Green Acres Reclaimed Water Project Bluffs Homeowners Association Retrofits Loan Principal: $145,000.00 Required Pmt: $20,075.89 Interest Rate: 6.400% Est Total Pmts: $200,758.94 Tenn (Years): 10.00 Est. Total Int: $55,758.94 Payment Remaining Cumulative Payment Payment Number Amount Principal Interest Principal Interest Date 1 $20,075.89 $10,795.89 $9,280.00 $134,204.11 $9,280.00 10/0112000 2 $20,075.89 $11,486.83 $8,589.06 $122,717.27 $17,869.06 10101/2001 3 $20,075.89 $12,221.99 $7,853.91 $110,495.29 $25,722.97 1010112002 4 $20,075.89 $13,004.20 $7,071.70 $97,491.09 $32,794.67 1010112003 5 $20,075.89 $13,836.46 $6,239.43 $83,654.63 $39,034.10 1010112004 6 $20,075.89 $14,722.00 $5,353.90 $68,932.63 $44,387.99 10/01/2005 7 $20,075.89 $15,664.21 $4,411.69 $53,268.42 $48,799.68 10101/2006 8 $20,075.89 $16,666.72 $3,409.18 $36,601.71 $52,208.86 10101/2007 9 $20,075.89 $17,733.38 $2,342.51 $18,868.32 $54,551.37 1010112008 10 $20,075.89 $18,868.32 $1,207.57 $0.00 $55,758.94 1010112009