HomeMy WebLinkAboutAgr 2002-01-01 (McIntyre/Town)
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RESOLUTION NO. 04-2002
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A RESOLUTION OF THE TOWN COUNCIL OF THE
TOWN OF TIBURON APPROVING ~~ AMENDMENT TO
THE TOWN MANAGER'S PROMISSORY NOTE
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WHEREAS, the Town employs Employee as its Town Manager pursuant to an Employment
Agreement dated September 25, 2000 and amended November 7 ~ 2001. ("Employment Agreement");
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WHEREAS, the Employment Agreement provided for the Town to provide a housing loan to
Employee secured by a second deed of trust on Employee's residence. The parties intended that the
interest rate would provi4e the Town with the same rate of return as if the principle amount of the loan
had been invested with the Local Agency Investment Fund ("LAIF"); and
WHEREAS, on January 2, 2002, the Council adopted Resolution 01-2002, approving: an
Agreement to 'amend the note ("Amendment"), modifying the interest provision thereof; and
WHEREAS, the Amendment contained an error in the method of calculating the interest rate,
which error the Council now desires to correct by approving the Agreement set forth in.Exhibit A to
this Resolution, which is attached hereto and incorporated herein by reference, and directing that it
supercede the Amendment attached as Exhibit A to Resolution No. 01-2002.
NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town ofTiburon that
the Agreement to Amend th~ Town Manager's Promissory Note in Exhibit A hereto is hereby
approved and supercedes the Amendment approved by Resolution No. 01-2002. The Mayor ofT own
ofTiburon is authorized lo execute said Agreement and any other documents that may be necessary
or appropriate to complet6.' this transaction.
PASSED AND ADOprED at a regular meeting of the Town Council of the Town ofTibUtUn
on JanuarY 16, "2'002 ~y the following vote:
AYES:
NOES:
ABSENT:
COUNCILMEMBERS:
COUNCILMEMBERS:
COUNCILMEMBERS~ . .
Fredericks, Gram, Matthews, Slavitz, Thompson
None
None
~ 711~~~
HARRY MATTHEWS, MAYOR
T own of Tiburon
A~~
DIANE CRAN ACOPI, TOWN CLERK
AGREEMENT TO AMEND THE TOWN
MANAGER'S PROMISSORY NOTE
This AMENDMENT TO THE TOWN MANAGER'S EMPLOYMENT AGREEMENT
("Amendment") is effective as of January 1, 2002, by and between The Town of Tiburon ("Town")
and Alex D. McIntyre ("Employee").
RECITALS
A. The Town employs Employee as its Town Manager pursuant to an Employment Agreement
dated September 25,2000 and amended November 7,2001 ("Employment Agreement").
B. Section 4.5 of the Employment Agreement provided for the Town to provide a housing loan to
Employee secured by a second deed of trust on Employee's residence. The Employment
Agreement stated that the interest rate on the loan was to be the same as that prevailing in the
Local Agency Investment Fund ("LAIF") and was to be adjusted annually. The intention
of the parties was that the interest rate would provide the Town with the same level of return
as if the principle amount of the loan had been invested in LAIF.
C. The Town and Employee closed the loan on December 15, 2000. On that date, Employee
signed a promissory note in the amount of $277,915.64 ("Note") and a deed of trust, which
was recorded on December 15, 2000 as Series No. 2000-G876582 in the Office of Official
Records of Marin County ("Deed of Trust"). The Promissory Note provided for the interest
rate of the loan to be adjusted annually to reflect the average LAIF rate of return during the
prior 12 months.
D. In the months since the closing of Employee's loan, prevailing interested rates have fluctuated
more than the parties anticipated. As a result, Employee has paid interest in excess of the
return that the Town would have realized had the principal amount of the Note been invested
in LAIF. Accordingly, the parties now wish to amend the interest provisions of the Note to
more closely reflect the parties' intentions in entering into the Employment Agreement.
NOW, THEREFORE, IN CONSIDERATION OF THE ABOVE RECITALS AND OF
THE MUTUAL PROMISES AND CONDmONS OF THIS AGREEMENT, IT IS AGREED
AS FOLLOWS:
1. The Note. Section l.b of the Note is amended as follows:
b. Adjustments to Interest Payments. The Interest Rate shall be adjusted effective
July 1st and January 1 st of each year ("Adjustment Dates"). Thirty days prior to
each Adjustment Date, the Holder shall ascertain the rate of return for posted
by the Local Agency Investment Fund ("LAIF") for the prior month. No less
than 14 days prior to the Adjustment Date, the Holder shall advise the Maker
Manager's Prom Note, 1--16-02 Amend, final. doc
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of this rate of return, which on the Adjustment Date shall become the new
interest rate payable on this loan. That is, the new rate effective July 1 st shall
be the rate posted by LAIF for the preceding May; the new rate effective
January 1st shall be the rate posted by LAIF for the preceding November. Also
thirty days prior to each Adjustment Date, the Holder shall calculate the
amount of return that it would have realized had it invested the principal
amount of this loan in LAIF during the prior six months. If this amount
exceeds the amount of interest actually pa~d by Maker for said period, the
Holder shall promptly advise maker of the difference and the maker shall pay
said amount to Holder within 30 days of receiving said notice. In the event
that . the Maker paid more interest during such six month period than the
Holder would have realized by investment in LAIF, the Holder shall refund the
difference to the Maker within thirty days.
2. Note Otherwise Unchan2ed. Except as expressly modified by this Amendment, the
terms of the Note, and all documents securing the Note, including, without limitation the Deed
of Trust, shall remain in full force and effect.
IN WITNESS WHEREOF, this Amendment to the Manager's Note shall be effective as of
the day and year written above.
Dated: ~~V~ I (,/ J-002..
THE TOWN OF TIBURON:
By: 1/~ 7J1~s
Name: ---1}k (( rt y "..vt ,4- Trli G- Ws
Title: MA'I o It,
APPROVED AS TO FORM
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Ann R. Danforth
Town Attorney
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Manager's Prom Note, 1--16-02 Amend, final. doc
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