HomeMy WebLinkAboutReso 64-11 Arroyo Vista DDA 2nd amendRESOLUTION NO. 64 -11
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
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APPROVING THE ASSIGNMENT AND ASSUMPTION OF, AND SECOND AMENDMENT TO,
THE DISPOSITION AND DEVELOPMENT AGREEMENT FOR THE ARROYO VISTA
REDEVELOPMENT PROJECT WITH THE HOUSING AUTHORITY OF THE CITY OF
DUBLIN, THE HOUSING AUTHORITY OF THE COUNTY OF ALAMEDA, EDEN HOUSING
INC., AND CITATION HOMES CENTRAL
WHEREAS, the Housing Authority of the City of Dublin (the "Authority") formerly owned
Arroyo Vista, a public housing development located in the City of Dublin (the "City") at 6700
Dougherty Road (the "Property"); and
WHEREAS, the Property was developed with 150 public housing units arrd a children's
day care center, all of which were in need of substantial rehabilitation; and
WHEREAS, on July 25, 2006, the Authority determined that rehabilitation was
economically infeasible and decided to seek redevelopment of the Property; and
WHEREAS, the City is a party to that certain Disposition and Development Agreement,
dated July 25, 2007, by and among the Authority, the Housing Authority of the County of
Alameda ("HACA"), Eden Housing, Inc., a California nonprofit public benefit corporation
("Eden"), and SCS Development Company, a California corporation, dba Citation Homes
Central ("Citation") to facilitate the redevelopment of the Property; and
WHEREAS, pursuant to the DDA, Citation and Eden (collectively, the "Developer")
proposed to redevelop the Property as a mixed-income development of approximately 405
units, consisting of affordable multi-family and senior rental units, affordable and market rate
for-sale units, open space, a community center and a childcare facility (the "Project"); and
WHEREAS, Eden is now in the ~midst of financing the project, and in conjunction
therewith has requested certain minor amendments to the terms of the DDA, to which the City is
agreeable.
NOW, THEREFORE, BE IT RESOLVED THAT THE City Council hereby approves the
Assignment and Assumption of, and Second Amendment to, the DDA and authorizes the City
Manager to execute and deliver the Assignment and Assumption of, and Second Amendment
to, the DDA substantially in the form on file with the City Clerk.
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PASSED, APPROVED AND ADOPTED this 7th day of June 2011 by the following vote:
AYES: Councilmembers Bidd{e, Hart, Swalwell, and Mayor Sbranti
NOES: None
ABSENT: Councilmember Hildenbrand
ABSTAIN: None
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Mayor
ATTEST:
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~jEPV`t-7 City Clerk
Reso No. 64-11, Adopted 6-7-11, Item 4.9 Page 2 of 2
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ASSIGNMENT AND ASSUMPTION OF, AND SECOND AMENDMENT TO,
DISPOSITION AND DEVELOPMENT AGREEMENT
(Arroyo Vista)
This Assignment and Assumption of, and Second Amendment to, Disposition And
Development Agreement (this "Amendment") is entered into as of the _ day of
, 2011, by and among the City of Dublin, a municipal corporation (the "C~"),
the Housing Authority of the County of Alameda, a public body, corporate and politic,
("HACA"), Eden Housing, Inc., a California nonprofit public benefit corporation ("Eden"), Eden
Dougherty, L.P., a California limited partnership (the "Partnership") and KB HOME Arroyo
Vista LLC, a Delaware limited liability company ("KB") (Eden and KB being referred to
collectively as the "Developer"}: Eden, KB, the City, the Partnership, and HACA being hereafter
referred to as the "Parties"), with reference to the following facts:
RECITALS
A. Certain of the Parties are parties to that certain Disposition and Development Agreement
dated as of July 25, 2007, as amended by (i) that certain First Amendment to Disposition and
Development Agreement dated as of January 26, 2010 by and among the parties, (ii) that certain
Assignment and Assumption of Disposition and Development Agreement, and Settlement
Agreement dated as of March 22, 2011 by and between SCS Development Company as
Assignor and KB HOME Arroyo Vista LLC as Assignee, and (iii) those certain letter agreements
dated (as so amended, tlie "DDA").
B. Certain of the Parties are parties to that certain Settlement Agreement dated as of
December 1, 2009 made by and among Andres Arroyo, Darlene Brown, Rhenae Keyes, Elise
Veal, the Arroyo Vista Tenants Association, the City of Dublin, the Dublin Housing Authority,
Eden Housing Inc., the Housing Authority of the Counry of Alameda, and SCS Development
Company, with respect to the lawsuit titled Arroyo Vista Tenants Association et al v. City of
Dublin et al, United States District Court Case No. 3:07-cv-05794-MHP, (the "Settlement
A~reement").
C. KB has succeeded to the rights and obligations of SCS Development Company under the
DDA and the Settlement Agreement.
D. Eden desires to assign its rights and obligations under the DDA and the Settlement
Agreement to the Partnership and the Partnership desires to assume such rights and obligations.
AGREEMENT
NOW, Therefore, in consideration of the recitals hereof and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby
agree as follows
1. Eden hereby assigns all of its right, title and interest under the DDA and the
Settlement Agreement to the Partnership. The Partnership hereby accepts such assignment and
assumes a11 duties and obligations of Eden pursuant to the DDA and the Settlement Agreement.
cHi sssoiis~.s ~ EXHIBIT A
~Q ItESOLVTlO~
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Eden shall execute and deliver to the Partnership a deed in form acceptable to HACA and the
Partnership transferring to the Partnership a fee interest in the Property previously transferred by
HACA to Eden pursuant to the Grant Deed, as defined below. All Parties hereby consent to and
acknowledge such assignment, assumption and transfer.
2. Those Parties that aze also parties to the Settlement Agreement shall provide
copies to the other Parties and the Project Financiers of all default notices, pleadings, and similar
items received by them with respect to the Settlement Agreement.
The definitions set forth below aze hereby added to Section 1.1 of the DDA:
"AHAP Contracts" means those certain Agreements to Enter Into Housing
Assistance Payments Contracts entered into or to be entered into between the
Partnership and HACA with respect to the Development.
"Authority" means the Dublin Housing Authority.
"Bondowner Representative" means Wells Fargo Bank, National Association.
"Partnership" means Eden Dougherty, L.P., a California limited partnership.
"Grant Deed" means that Grant Deed from HACA to Eden recorded in the
Official Records of Alameda County on March 4, 2011 as Document No. 2011-
072584, as amended by that certain [cor~ective deed dated as of
from HACA to Eden]. "HAP Contracts" means that certain
Housing Assistance Payments Coritract to be entered into between Partnership
and HACA with respect to the Development.
"HUD Documents" means the AHAP Contracts, the HAP Contracts, the Grant
Deed, the Use Agreement, any declaration recorded by HiJD or HACA against
the Development, that certain letter dated May 22, 2009 from the HUD to the
Authority and HACA, along with that certain Memorandum prepared by HUD
dated May 22, 2009, as amended by that certain letter dated May 29, 2009 from
HUD to the Authority and HACA, and as further amended by that certain letter
dated March 1, 2010 from HLJD to the Authority, and any other document
executed in connection with such documents. ~
"Investor Limited Partner" means Wachovia AfFordable Housing Community
Development Corporation. ~
"Partnership" means Eden Dougherty, L.P., a California limited partnership.
"Project Financier" means each entity whose address is set forth on Ezhibit A to
this Amendment, together with their successors and assigns.
"Public Entity Party" means the City and HACA.
"Use Agreement" means that Use Agreement between HACA and Eden dated as
of Mazch l, 2011 and recorded in the Official Records of Alameda County on
March 4, 2011 as Document No. 2011-072585.
2.
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4: A new subsection (c) is hereby added to the end of Section 3.1 of the DDA, to
read as follows: "Notwithstanding anything to the contrary set forth in this Section 3.1(k) or
elsewhere in this Agreement, it is understood and agreed that each Developer is providing the
indemnities describe in this Section 3.1(k) as to its respective Development Component only."
5. A new subsection (c) is hereby added to the end of Section 8.12 of the DDA, to
read as follows: "Notwithstanding anything to the contrary set forth in this Section 8.12 or
elsewhere in this Agreement, it is understood and agreed that each Developer is providing the
indemnities describe in this Section 8.12 as to its respective Development Component only."
6. A new sentence is hereby added to the end of Section 9.3 of the DDA, to read as
follows: "Further notwithstanding the foregoing, Investor Limited Partner may cause Borrower
to terminate the management agent in accordance with the Partnership's agreement of limited
partnership."
7. A new subsection ( fl is hereby added to Section 19.7 of the DDA, to read as
follows: "( fl Any transfer of limited partnership interests in the Partnership, and any transfer of
membership or partnership inferests of any limited partner in the Partnership."
8. ~ A new subsection (g) is hereby added to Section 19.7 of the DDA, to read as
follows: "(g) Any transfer of general partner interests in the Partnership resulting from the
removal of the general partner pursuant to the terms of the Partnership's agreement of limited
partnership."
9. A new Section 14.5 is hereby added to the DDA, to read ~as set forth below.
Section 14.5 Notice and Cure Ri~hts. The Parties agree as follows:
(a) the Public Entity Parties shall give each Project Financier a copy of any
written notice it gives to Eden or the Partnership under any HL1D Document;
(b) each Project Financier shall have one hundred twenty (120) days after its
receipt of such notice to cure a default under any HIJD Document;
(c) if a default is incapable of being cured within one hundred twenty (120) days,
each Project Financier shall have such additional time as is reasonably necessary
to cure such default provided it has commenced to cure such default within such
120-day period and is diligently proceeding to cure such default;
(d) if a Project Financier attempting to effectuate a cure cannot do so without
obtaining ownership or control of the respective Development Component, it shall
have a.reasonable time after foreclosing its lien or, in the case of Investor Limited
Partner, removing the general partner of the Partnership, to cure a default, but
shall not be obligated to cure a default it is legally incapable of curing; and
(e) if a Project Financier cures default, the Public Entity Parties will accept such
action as curing the respective default under the respective HLJD Document.
10. Capitalized terms not defined in this Amendment shall have the meanings
ascribed to such terms in the DDA.
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IN WIT'NESS WHEREOF, the Parties hereto have executed this Amendtnent as of the
date first written. •
City of Dublin,
a municipal corporation
By: _
Name:
Title:
Housing Authority of the County of Alameda,
a public body, corporate and politic
By: _
Name:
Title:
Eden Housing, Inc.,
a California nonprofit public benefit corporation
By: _
Name:
Title:
Eden Dougherry, L.P.,
a Califomia limited partnership
By Eden Dougherty LLC,
a California limited liability company, its general partner
By Eden Investrnents, Inc.,
a California nonprofit public benefit corporation,
its sole member/manager
By:_
Name:
Title:
KB HOME Arroyo Vista LLC,
a Delaware limited liability company
By:
Name:
Title:
CHl 5830113v.3
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EXHIBIT A
Notice Parties
HACA: Housing Authority of the County of Alameda
22941 Atherton Street
Hayward, California 94541
p~e~~p; Eden Dougherly, L.P.
~ c/o Eden Investments, Inc.
22645 Grand Street
Hayward, California 94541-5031
Attention: Executive Director
With a copy to:
Wachovia Affordable Housing Community
Development Corporation
One Wachovia Center .
301 South College Street
MAC D1053-170
Chazlotte, North Carolina 28288
Bondowner Representative: Wells Fazgo Bank, National Association
Community Lending and Investment
45 Fremont Street, 9~` Floor
MAC# A0194-090
San Francisco, California 94105
Attention: Loan Administration Officer
With a copy to:
Califorxua Community Reinvestment
Corporation
225 West Broadway, Suite 120
Glendale, California 91204
Attention: President
Investor Limited Partner: Wachovia Affordable Housing Community
Development Corporation
~ One Wachovia Center
301 South College Street
MAC D1053-170 .
Chazlotte, North Carolina 28288
CHl 5830113v.3
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The City: City of Dublin
100 Civic Plaza
Dublin, California 94568
Attention: City Manager
AHP Lender: Silicon Valley Bank
185 Berry Street, Suite 3000, Lobby 1
San Francisco, California 94107
Attention: Christine B. Carr
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