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HomeMy WebLinkAboutDoc 039 - Amend Humane Soc Redmond Loan AgrmtDeschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org AGENDA REQUEST & STAFF REPORT For Board Business Meeting of March 12, 2014 DATE: March 11, 2014 FROM: Mark Pilliod, Legal Counsel TITLE OF AGENDA ITEM: FIRST AMENDMENT TO REHABILITATION LOAN AGREEMENT, Document No. 2014-039; and SALE AGREEMENT between Deschutes County and Central Oregon Community College, Document No. 2014-152 PUBLIC HEARING ON THIS DATE? No BACKGROUND AND POLICY IMPLICATIONS: Deschutes County and the Humane Society of Redmond (now known as BrightSide) entered into a Rehabilitation Loan Agreement in 2008 under which the County helped BrightSide reorganize by negotiating and paying off certain outstanding financial obligations. This included the County lending Brightside approximately $1 million, extending a line of credit, and, in order to secure the same, accepting a deed to the real property and shelter facilities. Recently, BrightSide negotiated the sale of the "Event Center" to COCC-Cascades to enable the college to establish a veterinary tech program. This transaction requires the County's cooperation, as owner of the property. This transaction will also require a partition of the parcel, to legally separate the portion of the lot on which the Event Center is located. The Rehabilitation Loan Agreement anticipates the possible sale of the Event Center but requires the County to apply the proceeds (after deducting the costs and expenses involved in the transaction) to BrightSide's outstanding loan balance, now estimated at $650,000. However, BrightSide has asked that the County not apply all of the proceeds to its outstanding loan, but rather donate to BrightSide a portion of the net proceeds for its current operational needs. The County is willing to accommodate BrightSide's request, provided that it agrees to implement certain changes in operating procedures, which would be recommended by a management consultant hired by the County. FISCAL IMPLICATIONS: Staff estimates that the $300,000 purchase price will be reduced by approximately $40,000 for the costs involved in the partition and closing the purchase transaction. From the $260,000 net proceeds, the County would apply $141,000 to outstanding loans. From the balance of $119,000, the County would apply not more than $7,000 for the cost of a management consultant. After deducting its costs and expenses, the County would issue a check for the remaining funds to the humane society. RECOMMENDATION & ACTION REQUESTED: Approve and sign FIRST AMENDMENT TO REHABILITATION LOAN AGREEMENT, Document No. 2014-039. Authorize County Administrator to execute the SALE AGREEMENT, Document No. 2014-152 and to execute any other documents necessary to close the property transaction with COCC ATTENDANCE: Mark Pilliod, Legal Counsel DISTRIBUTION OF DOCUMENTS: Property and Facilities Finance Humane Society of Redmond, Mark Crose, President REVIEW 1D -9( LEGAL COUNSEL For Recording Stamp Only DOCUMENT NO. 2014-039 FIRST AMENDMENT TO REHABILITATION LOAN AGREEMENT - Document No. 2008-619 PARTIES: DESCHUTES COUNTY (County), a Political Subdivision of the State of Oregon, and HUMAN SOCIETY OF REDMOND (HSR), a Nonprofit Oregon Corporation. RECITALS: WHEREAS, the Parties entered into a Rehabilitation Loan Agreement dated December 10, 2008 ("Agreement"); and WHEREAS, in order to secure loans made by the County pursuant to the Agreement, HSR transferred title to its capital assets to the County, which so long as HSR has outstanding obligations for those loans, or unless any are sold in accordance with the Agreement, County continues to hold title thereto; and WHEREAS, the Agreement identifies several sources of funds which may be available to repay loans made by the County to HSR, including the sale the Event Center, described below; and WHEREAS, the Agreement requires that the County apply the net proceeds of the sale of HSR assets (owned by the County) first and foremost to pay off the principal and accrued interest on the several outstanding loans made by the County to HSR; and WHEREAS, while the Rehabilitation Loan Agreement requires HSR to prepare and deliver to the County monthly financial statements, these reports have not provided the level of regularity, detail or accuracy that the County reasonably expected; and WHEREAS, based upon County concerns over the financial condition of HSR, the parties have agreed that the County be authorized to select and contract with a professional management consultant or CPA who would examine the bookkeeping practices of HSR management, including but not limited to operating revenues and expenses, and prepare a report and recommendation to County and HSR concerning how HSR might establish better business practices, maintain more complete and accurate records of HSR's financial condition, more accurately report its financial condition to the County, all of which would enable HSR to avoid seeking additional operating capital from the County; and Page 1 — DOC. NO. 2014 -039 -FIRST AMENDMENT TO REHABILITION LOAN AGREEMENT WHEREAS, the parties have obtained an appraisal of the market value of the Event Center, which is Three Hundred Thousand Dollars ($300,000), subject to the costs of partition, separate utility service and separate metering, and WHEREAS, HSR has negotiated with Central Oregon Community College (COCC) for the partition and sale of the Event Center, at the appraised value, which COCC would use to establish and operate a learning center for its Veterinary Tech Program; and WHEREAS, currently HSR has outstanding loans to the County that were made pursuant to the Agreement of approximately Six Hundred Fifty Thousand Dollars ($650,000), which loans are due and payable in full no later than December 31, 2015; and WHEREAS, at HSR's request the County is willing to distribute the net proceeds of the sale of the Event Center in part to reduce the outstanding principal on HSR's loans, but also to reimburse the County for the cost of the partition and sale, the cost of retaining a management consultant, and to distribute the remaining funds to HSR to cover current and anticipated operational needs; and WHEREAS, the purpose of this First Amendment to Rehabilitation Loan Agreement Document No. 2008-619 (Amendment) is to modify the Agreement and to set forth the Parties' agreement with respect to the distribution of proceeds of the sale of the Event Center; AGREEMENT NOW, THEREFORE, the Agreement is hereby amended as follows: Section 1. The County will enter into a Sale Agreement with COCC concerning the Event Center property, generally described as: a metal clad light industrial type building of approximately Five Thousand Five Hundred Fifty Six Square Feet (5556), located on the mostly unimproved portion of the HSR premises north of the animal shelter, on Jackpine Avenue in Redmond, Oregon. The terms of said Sale Agreement are as follows: a. COCC will cause to be prepared certain necessary surveys, plans and applications and present and process the same with the City of Redmond with the objective of partitioning the HSR facilities into two parcels, consisting of the Animal Shelter Parcel on one and the Event Center Parcel on the other. COCC will observe and satisfy any required conditions imposed by the City of Redmond on the partition approval. As fee title holder, the County would cooperate with COCC to allow the submittal of the aforesaid application. The final partition plat shall be properly recorded. b. COCC will contract for, secure and install any utility lines or feeds required for use of the Event Center Parcel outside the boundaries of the remaining portion of the HSR premises containing the animal shelter, including without limitation the installation of a waterline and necessary metering from the City of Redmond water main, and to pay any required fees in connection therewith. Page 2 — DOC. NO. 2014 -039 -FIRST AMENDMENT TO REHABILITION LOAN AGREEMENT c. The County will obtain a title report demonstrating the condition of title to the Event Center Parcel acceptable to COCC. The County will take appropriate steps to remove from the title any conditions or encumbrances identified by COCC as unacceptable. d. After completion of the above-described partition, satisfaction of any conditions imposed by the City of Redmond and recording of the partition plat the County will prepare, submit for COCC's review and acceptance and tender a fully executed Bargain and Sale Deed over the Event Center Parcel. e. COCC will pay the County Three Hundred Thousand Dollars ($300,000) less the actual costs of the tasks described in paragraphs a and b of this Section 1. f. The transaction described in this Section 1 will close in escrow. g. The Sale Agreement, Document No. 2014-152 is marked Exhibit A, attached hereto and incorporated. Section 2. The County will enter into a Personal Services Contract with a management consultant, either a CPA or other qualified financial advisor. The scope of work for such consultant will be as generally described on Exhibit B, attached hereto and incorporated by reference. The results of the scope of work will be contained in the consultant's report to the County concerning the financial management and condition of HSR, together with recommendations on how through the implementation of certain business practices, the same may be improved. The County shall furnish a copy of the completed report to HSR. The cost of the consultant services shall not exceed Seven Thousand Dollars ($7,000). Section 3. Promptly after receiving notice from the County that the consultant, described in Section 2 immediately above has been retained, HSR management and staff shall permit said consultant full access to HSR's books and records and otherwise assist and cooperate with the consultant in promptly and diligently fulfilling its tasks as described in Exhibit A. Section 4. Upon completion and receipt of the report described in Section 2 above, HSR shall meet with County representatives and the consultant for the purpose of implementing recommendations to HSR contained in the consultant's report. Section 5. Upon completion of tasks described in Sections 1 and 2 of this Amendment, the County shall distribute the proceeds of the Event Center Parcel sale as follows and in the following sequence: a. From the proceeds of the sale of the Event Center Parcel to COCC as described in Section 1, paragraph e above, the County would retain the costs of preparing the real property appraisal referred to in the recitals, the cost of the title report on the Event Center Parcel, any costs associated with clearing title to the Event Center Parcel, document recording costs Page 3 — DOC. NO. 2014 -039 -FIRST AMENDMENT TO REHABILITION LOAN AGREEMENT and any other closing expenses. b. After deducting the costs and expenses described in this Section 5, paragraph a immediately above, the County would apply One Hundred Forty One Thousand Dollars ($141,000) toward the outstanding principal and accrued interest on HSR's outstanding loans, pursuant to the terms of the Agreement. c. After distribution of funds as described in the this Section 5, paragraphs a and b, County will distribute the balance by check payable to HSR. Section 6. Section 5.3b of the Agreement is amended to read: "(b) No later than January 15, 2009, and the 15th day of each consecutive calendar month thereafter, HSR will deliver to County a written statement of its financial operations (i.e. a profit and loss statement), prepared on the accrual basis, for the calendar month next preceding the calendar month that such statement is to be delivered along with a description, and the results of, any fundraising activities that took place during that month. Such statements shall reflect the receipt of any advances made under the above-mentioned Optional Advance Note during the month subject of such statement and may be included in the total amount of revenues reported for that month for purposes of disclosure of the financial results of operations during that period. The report shall be prepared in accordance with programs and procedures recommended to HSR in the consultant report concerning HSR's financial operations, dated 2014 and prepared on behalf of Deschutes County. The contents of each of these reports will be maintained in strictest confidence by County to the fullest extent authorized by law and to be used solely for the purpose of undertaking the actions described in subsection 7.4 below." Section 7. The distribution by the County to HSR of the proceeds of the sale of the Event Center Parcel as described in Section 5c may be characterized as a grant and should be prudently used by HSR to meet its immediate financial obligations. The transactions described in this Amendment shall be construed as in full compliance with the requirements of the Agreement with respect to the partition and sale of the Event Center Parcel and the distribution of proceeds therefrom. Notwithstanding the immediately preceding sentence, under no circumstances shall this Amendment or the distribution of proceeds from the partition and sale of the Event Center Parcel be construed as a waiver or release of HSR's liability for the full payment and satisfaction of the principal and interest owing on loans made by the County pursuant to the Agreement. Furthermore, the deadline for HSR to fully satisfy its obligations under the Agreement remains December 31, 2015. /1/ /// /// Page 4 — DOC. NO. 2014 -039 -FIRST AMENDMENT TO REHABILITION LOAN AGREEMENT /1/ Section 8. Except as otherwise provided in this Amendment, the terms and conditions of the Agreement remain in effect. Dated this ATTEST: of , 2014 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON Recording Secretary TAMMY BANEY, Chair ANTHONY DEBONE, Vice Chair ALAN UNGER, Commissioner HUMANE SOCIETY OF REDMOND Mark Crose, President Page 5 — DOC. NO. 2014 -039 -FIRST AMENDMENT TO REHABILITION LOAN AGREEMENT EXHIBIT A SALE AGREEMENT DATE: March 12, 2014 SELLER: DESCHUTES COUNTY, a political subdivision of the STATE OF OREGON BUYER: CENTRAL OREGON COMMUNITY COLLEGE RECITAL: Seller desires to sell to Buyer and Buyer desires to purchase from Seller a portion of that certain real property with all improvements located on it commonly known as 1355 NE Hemlock, Redmond, Deschutes, Oregon, referred to as the Brightside Event Center, having the following legal description (the "Property"): Partition Plat 2001-29, PT Parcel 2 and PT Parcel 3 (See Exhibit 1 and 2 attached hereto and incorporated by reference herein) Together with an access easement 50 feet in width as generally described on Exhibit 2 AGREEMENT: Now, therefore, for valuable consideration, the parties agree as follows: 1. Sale and Purchase. Buyer agrees to purchase the Property from Seller and Seller agrees to sell the Property to Buyer for the sum of $300,000 less the costs of partition incurred by Buyer (the "Purchase Price"). 2. Payment of Purchase Price. At closing, Buyer shall pay the net purchase price in cash. 3. Closing. Closing shall take place within 30 days of the completion of the property partition (the "Closing Date"). Each party shall may one-half of the escrow fee. 4. Preliminary Title Report. Within 15 days after full execution of this Agreement, Seller shall furnish to Buyer a preliminary title report showing the condition of title to the Property, together with copies of all exceptions listed therein (the "Title Report"). Buyer will have 10 days from receipt of the Title Report to review the Title Report and to notify Seller, in writing, of Buyer's disapproval of any exceptions shown in the Title Report. Those exceptions that are not objected to by Buyer are referred to below as the "Permitted Exceptions." Zoning ordinances, building restrictions, taxes due and payable for the current tax year, and reservations in federal patents and state deeds shall be deemed Permitted Exceptions. If Buyer notifies Seller of Page 1 — SALE AGREEMENT DC #2014-152 FITCH LAW GROUP, PC 210 SW 5TH STREET, SUITE 2 REDMOND, OR 97756 541-316-1588 PHONE 541-316-1943 FAX disapproval of any exceptions, Seller shall have 15 days after receiving the disapproval notice to either remove the exceptions or provide Buyer with reasonable assurances of the manner in which the exceptions will be removed before the transaction closes. If Seller does not remove the exceptions or provide Buyer with such assurances, Buyer may terminate this Agreement by written notice to Seller given within 15 days after expiration of such 15 -day period, in which event the earnest money shall be refunded to Buyer and this Agreement shall be null and void. 5. Conditions. Buyer's obligation to purchase the Property is contingent upon City of Redmond approval of a partition of the subject property. 6. Deed. On the Closing Date, Seller shall execute and deliver to Buyer a bargain and sale deed, conveying the Property to Buyer, free and clear of all liens and encumbrances except the Permitted Exceptions. 7. Prorates. Insurance premiums (if Buyer assumes the existing policy) and other usual items shall be prorated as of the Closing Date. 8. Possession. Buyer shall be entitled to possession immediately upon closing. 9. Property Included. All built-in appliances, floor coverings, window and door screens, storm doors and windows, irrigation, plumbing, ventilation, cooling and heating fixtures and equipment, water heaters, attached electric light fixtures, window coverings, awnings, planted shrubs, plants and trees, and all fixtures are part of the Property and shall be left on the Property by Seller. 10. Representations. Buyer represents that it has accepted and executed this Agreement on the basis of its own examination and personal knowledge of the Property; that Seller and Seller's agents have made no representations, warranties, or other agreements concerning matters relating to the Property; that Seller and Seller's agents have made no agreement or promise to alter, repair, or improve the Property; and that Buyer takes the Property in the condition, known or unknown, existing at the time of this Agreement, "AS IS." 11. Binding Effect/Assignment Restricted. This Agreement is binding on and will inure to the benefit of Seller, Buyer, and their respective heirs, legal representatives, successors, and assigns. Nevertheless, Buyer will not assign its rights under this Agreement without Seller's prior written consent which consent shall not be unreasonably withheld. 12. Remedies. TIME IS OF THE ESSENCE REGARDING THIS AGREEMENT. If the conditions described in Section 5 above are satisfied, either party reserves all legal and equitable remedies if the other party fails to close this transaction. Page 2 — SALE AGREEMENT DC #2014-152 FITCH LAW GROUP, PC 210 SW 5TH STREET, SUITE 2 REDMOND, OR 97756 541-316-1588 PHONE 541-316-1943 FAX 13. Attorney Fees. In the event action is instituted to enforce any tern of this Agreement, the prevailing party shall recover from the losing party reasonable attorney fees incurred in such action as set by the trial court and, in the event of appeal, as set by the appellate courts. 14. Notices. All notices and communications in connection with this Agreement shall be given in writing and shall be transmitted by certified or registered mail, return receipt requested, to the appropriate party at the address first set forth below. Any notice so transmitted shall be deemed effective on the date it is placed in the United States mail, postage prepaid. Either party may, by written notice, designate a different address for purposes of this Agreement. Buyer: Central Oregon Community College c/o Matt McCoy, Vice President of Administration Boyle Education Center 2600 NW College Way Bend, OR 97701 Seller: Deschutes County c/o Susan Ross, Property & Facilities Director PO Box 6005 Bend, Oregon 97708 15. Entire Agreement. This Agreement sets forth the entire understanding of the parties with respect to the purchase and sale of the Property. This Agreement supersedes any and all prior negotiations, discussions, agreements, and understandings between the parties. This Agreement may not be modified or amended except by a written agreement executed by both parties. 16. Applicable Law. This Agreement shall be construed, applied, and enforced in accordance with the laws of the state of Oregon. 17. Acceptance. This Agreement shall be null and void unless accepted by Seller, by Seller's execution of it, on or before April 15, 2014. THE PROPERTY DESCRIBED IN THIS INSTRUMENT MAY NOT BE WITHIN A FIRE PROTECTION DISTRICT PROTECTING STRUCTURES. THE PROPERTY IS SUBJECT TO LAND USE LAWS AND REGULATIONS THAT, IN FARM OR FOREST ZONES, MAY NOT AUTHORIZE CONSTRUCTION OR SITING OF A RESIDENCE AND THAT LIMIT LAWSUITS AGAINST FARMING OR FOREST PRACTICES, AS DEFINED IN ORS 30.930, IN ALL ZONES. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON TRANSFERRING FEE TITLE SHOULD INQUIRE Page 3 — SALE AGREEMENT DC #2014-152 FITCH LAW GROUP, PC 210 SW 5TH STREET, SUITE 2 REDMOND, OR 97756 541-316-1588 PHONE 541-316-1943 FAX ABOUT THE PERSON'S RIGHTS, IF ANY, UNDER ORS 195.300, 195.301 AND 195.305 TO 195.336 AND SECTIONS 5 TO 11, CHAPTER 424, OREGON LAWS 2007, AND SECTIONS 2 TO 9 AND 17, CHAPTER 855, OREGON LAWS 2009. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THE PROPERTY SHOULD CHECK WITH THE APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO VERIFY THAT THE UNIT OF LAND BEING TRANSFERRED IS A LAWFULLY ESTABLISHED LOT OR PARCEL, AS DEFINED IN ORS 92.010 OR 215.010, TO VERIFY THE APPROVED USES OF THE LOT OR PARCEL, TO VERIFY THE EXISTENCE OF FIRE PROTECTION FOR STRUCTURES AND TO INQUIRE ABOUT THE RIGHTS OF NEIGHBORING PROPERTY OWNERS, IF ANY, UNDER ORS 195.300, 195.301 AND 195.305 TO 195.336 AND SECTIONS 5 TO 11, CHAPTER 424, OREGON LAWS 2007, AND SECTIONS 2 TO 9 AND 17 CHAPTER 855, OREGON LAWS 2009. THE PROPERTY DESCRIBED IN THIS INSTRUMENT IS SUBJECT TO SPECIAL ASSESSMENT UNDER ORS 358.505. SELLER: BUYER: Deschutes County Central Oregon Community College By: Tom Anderson, County Administrator By: James Middleton Its: President Page 4 — SALE AGREEMENT DC #2014-152 FITCH LAW GROUP, PC 210 SW 51H STREET, SUITE 2 REDMOND, OR 97756 541-316-1588 PI-IONE 541-316-1943 FAX SEE HAP 1113 1080 r.) d , - • C.A) (.0 11TH STREET 55E13AP 1511 lat '..,. 5-- 53E30 13 1314313' ...,1 ‘1. 9TH STREET 1 1 I r3i __ 2 ; m 6 111 . ...„, . ,• ' ' A ..., 2--- ,,, •- §'TREt JI LE I 17; \'\ 55E1,015 33 0 - 11TH S1REFT 4 EXHIBIT_ AlN1100 S3111HOSDO 'VM .2E1- .SS I-1 0 VO3S t;11.."NI 01 CD 0 TENTATIVE PLAT LOT PARTITION c PARCEL 3 TAX PARCEL 2 0 § / y\ZI \ , \ 0�\\z 4- \ \'\ \ \ \ 0000 a g %k ~ /° 0 2 6 z a. o CONSTRUCTION MGR. 00 CZ ON rn, 00(00 ,% }\//} \/ J• wW Q UO 044 VICINITY MAP NE HEMLOCK AVE \ { 3 68 0 0 ( j§ 0261 06 EXHB T > PAGE F Exhibit B Deschutes County - Accounting Procedures On behalf of BrightSide Animal Center (Humane Society of Redmond) Purpose: The following procedures have been identified by Deschutes County to support the ongoing evaluation of financial position of the BrightSide Animal Center (HSR) and to aid HSR in being thorough and accurate in its financial accounting. Scope: The most current accounting information for the most recent month and fiscal year where the accounting has been closed (anticipated being January 31, 2014 and June 30, 2013). It is understood the accounting is on an accrual basis of accounting prepared through QuickBooks. Deschutes County will select an independent CPA for applying the procedures, described below. The CPA will have experience with accounting procedures by a non-profit organization and their application in a QuickBooks accounting environment. Compensation to the CPA for services will be fixed in advance (not to exceed) based upon the scope of work described below. Each element of the stated procedures will be performed, unless based upon the professional opinion of the CPA that the procedure is not applicable in the given period. Any significant adjustments to the anticipated procedures will be approved in advance with Deschutes County. The CPA is to be selected and paid by Deschutes County. The results will be shared with HSR. The CPA selection and these procedures will be confirmed by HSR management with the understanding that HSR Board and management will be responsible for implementation of any corrective actions and management recommendations coming from the CPA. HSR management and staff will cooperate with and provide access to its personnel, facilities and records to complete the requested analysis. The CPA will not issue an audit, review or compilation opinion on any of the financial statements. The report will be limited to addressing the procedures below. Source: The financial statements utilized will be from HSR's QuickBooks accounting system as prepared for County and HSR management. The statements do not generally include notes. Performance of Agreed Upon Procedures: The current Agreed Upon Procedures engagement shall be performed in accordance with professional standards identified by the CPA. The sufficiency of the procedures is solely the responsibility of Deschutes County. Page 1 - Exhibit B — Deschutes County Accounting Procedures Agreed Upon Procedures: 1. Gaining an understanding of processes for internal control over revenue from cash handling at the HSR thrift store and shelter. Develop appropriate recommendations based upon observations and anticipated/expected controls. 2. Gaining an understanding of monthly and fiscal period closing procedures to assure accrual accounting is properly developed. Inquiry and review should include (but is not limited to): a. Bank reconciliations. b. Payroll liabilities and payroll taxes (reconcile and determine that they are current). c. Assess cutoff procedures for the accrual accounting. d. Review established chart of accounts and segment reporting setup. e. CPA's report should include recommended journal entries to correct any identified accounting issues. Any accounting procedures and practices found to be deficient should be addressed. 3. Identify any issues with the current accounting presentation that should be addressed. a. For example, non-recurring non-cash revenues may have been improperly included in the operational income statements. 4. Analyze and present common financial ratios and analyses for the statements (based on the CPA's judgment) that would compare them to their peers. Identify any potential issues. 5. Assist HSR in developing the standard reporting process through QuickBooks for financial information to be provided to Deschutes County as well as the HSR Board, including: a. Comparative balance sheets. b. Comparative income statements with budget information (YTD and Monthly). i. With sufficient detail for major programs and expense categories. c. Cash flow statements. d. Identifying and providing explanatory comments with statements to point out important topics. 6. CPA will develop an appropriate agreed upon procedures report summarizing results of procedures, findings and recommendations. Page 2 - Exhibit B — Deschutes County Accounting Procedures