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HomeMy WebLinkAboutReso 133-18 Approving an Amendment to the Acquisition Agreement for CFD No 2015-1 RESOLUTION NO. 133 — 18 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN * * * * * * ** * * * APPROVING AND AUTHORIZING EXECUTION. OF A FIRST AMENDMENT TO THE ACQUISITION AGREEMENT BETWEEN THE CITY OF DUBLIN AND DUBLIN CROSSING, LLC WHEREAS, the City formed Community Facilities District No. 2015-1 (Dublin Crossing), City of Dublin, County of Alameda, State of California (the "CFD") for the purpose of providing financing for certain authorized public facilities and certain authorized capital facility fees (together, the improvements and the impact fees are referred to herein as the "Authorized Facilities and Authorized Fees") being constructed and installed by or paid by Dublin Crossing, LLC (the "Developer"), pertaining to a development project initially known as "Dublin Crossing" and now renamed "Boulevard;" and WHEREAS, the City and Developer executed that certain Acquisition Agreement between the City of Dublin and Dublin Crossing, LLC on July 18, 2017, which set forth the list of Authorized Facilities and Authorized Fees and provided a requisition procedure by which the Developer could request reimbursement from bond proceeds and/or CFD special tax proceeds for the cost of Authorized Facilities and Authorized Fees; and WHEREAS, the City in 2017 issued CFD bonds and contemplates issuing additional bonds for the CFD in 2018 and thereafter, the proceeds of which are available for reimbursement and acquisition of additional infrastructure improvements; and WHEREAS, the City and Developer now desire to amend the Acquisition Agreement to amend the requisition process and the facilities and fees that may be reimbursed under the Acquisition Agreement; WHEREAS, City staff and Developer have negotiated the amendment to the Acquisition Agreement (the "Amendment"), the form of which is attached as Exhibit A to this Resolution and incorporated herein by this reference. NOW THEREFORE, the City Council of the City of Dublin does RESOLVE as follows: 1. The above recitals are true and are incorporated into this Resolution. 2. The Amendment to the Acquisition Agreement between the City of Dublin and Dublin Crossing LLC, substantially in the form attached as Exhibit A, is hereby approved. 3. The City Manager is authorized and directed to execute the Amendment on behalf of the City, with such changes as may be approved by the City Attorney or by Bond Counsel for the CFD bonds, and to execute all other documents and take all other actions necessary to carry out the intent of this Resolution. Reso No. 133-18, Adopted 12/4/18, Item 4.12 Page 1 of 2 PASSED, APPROVED AND ADOPTED this 4th day of December, 2018, by the following vote: AYES: Councilmembers Gupta, Hernandez, Thalblum and Mayor Haubert NOES: ABSENT: Councilmember Goel ABSTAIN: ' J Mayor ATTEST: ZY(C7 City Clerk Reso No. 133-18, Adopted 12/4/18, Item 4.12 Page 2 of 2 1 FIRST AMENDMENT TO ACQUISITION AGREEMENT Relating to: City of Dublin Community Facilities District No. 2015-1 (Dublin Crossing) This First Amendment to Acquisition Agreement (this “First Amendment”) is entered into as of the ___ day of ____________, 2018 by and between the CITY OF DUBLIN, a municipal corporation organized under the State of California (the “City”), and DUBLIN CROSSING, LLC, a Delaware limited liability company (the “Developer”). The City and the Developer are collectively referred to herein as the “Parties.” WHEREAS, the City and the Developer entered into that certain Acquisition Agreement dated as of July 18, 2017 (the “2017 Agreement”) providing for the acquisition of certain improvements by the City of Dublin Community Facilities District No. 2015-1 (Dublin Crossing) (the “CFD”); and WHEREAS, the City and the Developer desire to modify the provisions of the Payment Request form attached as “Exhibit B” to the 2017 Agreement as it relates to documentation necessary for reimbursement to Developer of costs of the Authorized Facilities (as defined in the 2017 Agreement) from Funding Sources (as defined in the 2017 Agreement); and WHEREAS, the City and the Developer desire to make certain other amendments to the 2017 Agreement and do hereby amend and supplement the 2017 Agreement pursuant to the terms of this First Amendment. NOW, THEREFORE, in consideration of the preceding recitals and the mutual covenants hereinafter contained, the Parties agree as follows: Section 1. The defined term “Actual Cost” is amended as follows (strike-through is delete, underline is addition: “Actual Cost” means, with respect to an Authorized Facility or a Discrete Component, an amount equal to the sum of (a) the Developer’s actual, reasonable cost of constructing such Authorized Facility or Discrete Component, including labor, material, and eq uipment costs, (b) the Developer’s actual, reasonable cost of preparing the Plans for such Authorized Facility or Discrete Component, (c) the Developer’s actual, reasonable cost of environmental evaluations required in the City’s reasonable determination specifically for such Authorized Facility or Discrete Component, (d) the amount of the fees actually paid by the Developer to governmental agencies in order to obtain permits, licenses, or other necessary governmental approvals for such Authorized Facility or Discrete Component, (e) the amount of 9.5% of the amount determined pursuant to subdivision (a) above for construction management services, (f) the Developer’s actual, reasonable cost for professional services directly related to the construction and installation of such Authorized Facility or Discrete Component, including engineering, 2 inspection, construction staking, materials testing, and similar professional services, (g) the Developer’s actual, reasonable cost of any title insurance, escrow fees or costs, or like expenses incurred with respect to transfer of ownership of any such Authorized Facility or Discrete Component, and (h) the Developer’s actual, reasonable cost of any real property or interest therein acquired from a party other than the Developer, which real property or interest therein is either necessary for the construction of such Authorized Facility or Discrete Component (e.g., temporary construction easements, haul roads, etc.) or is required to be conveyed with such Authorized Facility or Discrete Component in order to convey acceptable title thereto to the City or other applicable public entity or public utility, as specified in a Payment Request that has been reviewed and approved by the Director of Public Works or his designee who will be responsible for administering the acquisition of the Authorized Facility or Discrete Component; provided, however, that no item of cost relating to an Authorized Facility or Discrete Component shall be included in more than one category of cost under this definition; and provided further, however, that each item of cost shall be chargeable to the capital account for the Authorized Facility under generally accepted accounting principles. Section 2. The second paragraph of Section 5(d) is replaced in its entirety with the following: “Notwithstanding the foregoing, the Developer shall solicit at least three (3) competitive bids for each contract for construction of Authorized Facilities and award all contracts for construction of the Authorized Facilities (including any Discrete Components thereof), in each case consistent with the Plans and the Conditions of Approval, to the lowest responsible bidder among the competitive bids received. If the nature of the Authorized Facility is such that there are not three responsible contractors from which to solicit bids, then the Developer may solicit less than three competitive bids for the construction of such Authorized Facility. For purposes of clarification, (i) the Developer’s obligation is only to solicit the required number of bids under this Acquisition Agreement; it is not required that the Developer receive a minimum number of responses from contractors; (ii) there shall be no bidding requirements for materials or supplies; and (iii) the bidding procedure described in this Acquisition Agreement shall prevail over any City policies to the contrary.” Section 3. Exhibit A to the 2017 Agreement (Authorized Facilities and Authorized Fees) is replaced in its entirety with the listing attached hereto as New Exhibit A. To the extent any facilities and/or fees listed on New Exhibit A are in addition to those listed in the Authorized CFD Public Improvements adopted for the CFD, this First Amendment constitutes a written agreement as provided in the last paragraph of such list of Authorized CFD Public Improvements, and sets forth the additional improvements or impact fees which are eligible for financing by the CFD. Section 4. Exhibit B to the 2017 Agreement (Form of Payment Request) is replaced in its entirety with the form attached hereto as New Exhibit B. Section 5. For purposes of executing and delivering the Payment Request in the form of Exhibit B, the Developer hereby appoints Gregory Glenn and Joshua Roden, both of Brookfield Bay Area Holdings, LLC, to serve as authorized signatories of Dublin Crossing, LLC, and either person, acting alone, may execute and deliver a Payment Request on behalf of the Developer, and such execution shall be deemed the execution by the Developer. Section 6. Except as set forth in this First Amendment, the terms and conditions of the 2017 Agreement shall remain unchanged and in full force and effect. 3 Section 7. This First Amendment may be executed in counterparts, each of which shall be deemed an original. Section 8. The provisions of this First Amendment shall be governed by the laws of the State of California. Section 9. Each Party represents and warrants to the other that the Agreement has not been amended (except as modified by this First Amendment), constitutes the entire agreement between the Parties, and is presently in full force and effect, with no uncured defaults and with no acts or omissions having occurred which, but for the passing of time or giving of notice, would be a default thereunder. SIGNATURES ON FOLLOWING PAGE 4 IN WITNESS WHEREOF, the Parties have caused this First Amendment to be signed as of the date first above written. CITY OF DUBLIN DUBLIN CROSSING, LLC, a Delaware limited liability company By:________________________________ By: BrookCal Dublin LLC, City Manager a Delaware limited liability company Its: Member ATTEST: By: ___________________________ (Signature) _________________________________ City Clerk ___________________________ (Print Name & Title) APPROVED AS TO FORM: By: ___________________________ (Signature) _________________________________ ___________________________ City Attorney (Print Name & Title) By: SPIC Dublin LLC, a Delaware limited liability company Its: Member By: Standard Pacific Investment Corp., A Delaware corporation Its: Member By: _______________________ (Signature) _______________________ (Print Name & Title) By: ________________________ (Signature) ________________________ (Print Name & Title) A-1 NEW EXHIBIT A AUTHORIZED FACILITIES AND AUTHORIZED FEES A. City Public Capital Improvements: The public capital improvements that are required for the development of the Project and that are authorized to be financed under this Agreement are (i) the following public capital improvements of the City, and (ii) such other public capital improvements of the City not listed below that the City Manager and the Developer mutually agree in a written agreement are eligible as authorized facilities for the CFD. 1. Backbone Storm Drainage 2. Backbone Street Improvements 3. Master Landscaping, Fencing and Signage on Public Property, Including Public Easements and Rights-of-Way B. City-Imposed Impact Fees: The City-imposed impact fees that are required for the development of the Project and that are authorized to be financed under this Agreement are (i) the following City-imposed impact fees, and (ii) such other public City-imposed impact fees not listed below that the City Manager and the Developer mutually agree in a written agreement are eligible as authorized facilities for the CFD. 1. Fire Impact Fees 2. Freeway Interchange Fees 3. Public Art In-Lieu Fees 4. Residential Traffic Impact Fees – Eastern Dublin Fee 5. Development Agreement Fees: a. ACSPA Contribution b. Iron Horse Trail Bridge Contribution c. Park Construction Payment 6. Civic Center Fee 7. Library Impact Fee 8. Aquatic Center Impact Fee. C. Dublin San Ramon Services District (DSRSD): The public capital improvements and impact fees of DSRSD that are required for the development of the Project and that are authorized to be financed under this Agreement are (i) the following public capital improvements and impact fees of DSRSD, and (ii) such other public capital improvements and impact fees of DSRSD not listed below that the City Manager and the Developer mutually agree in a written agreement are eligible as authorized facilities for the CFD. 1. Capital Improvements a. Backbone Sanitary Sewer A-2 b. Backbone Domestic Water c. Backbone Reclaimed Water 2. DSRSD Impact Fees a. Water System Connection Fees b. Water Meter Assembly Fees c. Wastewater Impact Fees D. Zone 7: The public capital improvements and impact fees of Zone 7 that are required for the development of the Project and that are authorized to be financed under this Agreement are (i) the following public capital improvements and impact fees of Zone 7, and (ii) such other public capital improvements and impact fees of Zone 7 not listed below that the City Manager and the Developer mutually agree in a written agreement are eligible as authorized facilities for the CFD. 1. Capital Improvements a. Backbone Storm Drainage 2. Zone 7 Impact Fees a. Water Connection Fees b. Drainage Assessment Fees (Impervious Surface) B-1 NEW EXHIBIT B FORM OF PAYMENT REQUEST City of Dublin Community Facilities District No. 2015-1 (Dublin Crossing) Pursuant to the Acquisition Agreement, dated as of July 18, 2017 (the “Acquisition Agreement”), by and between the City of Dublin (the “City”) and Dublin Crossing, LLC (the “Developer”), the Developer hereby requests (a) payment of the Purchase Price of the Authorized Facilities and/or the Discrete Components described in Attachment 1 hereto or (b) reimbursement for the Authorized Fees described in Attachment 1 hereto. Capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Acquisition Agreement. In connection with this Payment Request, the undersigned hereby represents and warrants to the City as follows: For Authorized Facilities or Discrete Components: 1. The undersigned is an authorized representative of the Developer, qualified to execute this request for payment on behalf of the Developer and knowledgeable as to the matters set forth herein. 2. The Developer has submitted or submits herewith to the Director of Public Works as-built drawings or similar Plans for each of the Authorized Facilities and/or Discrete Components described in Attachment 1, and such drawings or Plans, as applicable, are true, correct and complete representations of the Authorized Facilities and/or Discrete Components listed in Attachment 1. 3. Each of the Authorized Facilities and Discrete Components described in Attachment 1 has been bid in accordance with the requirements of this Agreement, has been constructed in accordance with the Plans therefor and in accordance with applicable City standards, and has otherwise satisfied the provisions of the Acquisition Agreement, and the as-built drawings or similar Plans referenced in paragraph 2 above, and none of the Authorized Facilities or Discrete Components described in Attachment 1 has been the subject of any prior Payment Request. 4. The Developer has submitted or submits herewith to the Director of Public Works soils reports and certifications as appropriate with respect to each Authorized Facility or Discrete Component described in Attachment 1. 5. The true and correct Actual Cost of each of the Authorized Facilities and/or Discrete Components described in Attachment 1 is set forth in Attachment 1. 6. The Developer has submitted or submits herewith to the Director of Public Works a copy of each construction contract for each of the Authorized Facilities and/or Discrete Components described in Attachment 1, a copy of the bid notice for each such B-2 contract and a copy of each change order applicable to each such contract, together with the written approval of each such change order by the Director of Public Works of the City. 7. The Developer has submitted or submits herewith to the Director of Public Works a letter from the Developer evaluating invoices, receipts, worksheets and other evidence of costs for each of the Authorized Facilities and/or Discrete Components described in Attachment 1, which are in sufficient detail to allow the Director of Public Works to verify the Actual Cost of such Authorized Facilities and Discrete Components and, if any of such invoices, receipts, worksheets or other evidence of costs include costs for facilities other than such Authorized Facilities and/or Discrete Components , the Developer has submitted or submits herewith to the Director of Public Works a written description as to how the items and amounts in such invoices, receipts, worksheets and other evidence of costs have been allocated among such other Authorized Facilities and/or Discrete Components, together with evidence that such allocation is appropriate, correct and reasonable. 8. The Developer has submitted or submits herewith to the Director of Public Works evidence that each of the invoices, receipts, worksheets and other evidence of costs referred to in the preceding paragraph, has been paid in full, which evidence is in the form of copies of cancelled checks or such other form as the Director of Public Works of the City has approved in writing. 9. There has not been filed with or served upon the Developer notice of any lien, right to lien or attachment upon, or claim affecting the right to receive, the payment of the Purchase Price for each of the Authorized Facilities and/or Discrete Components described in Attachment 1 which has not been released or will not be released simultaneously with the payment of such obligation, other than materialmen’s or mechanics’ liens accruing by operation of law. 10. The Developer has submitted or submits herewith to the Director of Public Works copies of unconditional or conditional (providing for release upon payment) lien releases from all contractors, subcontractors and materialmen for all work with respect to each of the Authorized Facilities and/or Discrete Components described in Attachment 1. 11. The representations and warranties of the Developer set forth in Section 10(a) of the Acquisition Agreement are true and correct on and as of the date hereof with the same force and effect as if made on and as of the date hereof. 12. The Developer represents that it has satisfied the conditions specified in the Acquisition Agreement for the payment of the Purchase Price of Authorized Facilities or Discrete Components. 13. The Developer represents and warrants that, as of the date hereof, there is not present on, under or in any of the Authorized Facilities and/or Discrete Components described in Attachment 1, or any portion thereof, any hazardous materials, except for (i) any t ypes or amounts that do not require remediation or mitigation under federal, state or local laws, ordinances, regulations, rules or decisions, (ii) those that have been remediated or mitigated in full compliance with applicable federal, state or local laws, ordinances, regulations, rules or decisions, (iii) those with respect to which ongoing remediation or mitigation is being performed in full compliance with applicable federal, state or local laws, ordinances, regulations, rules or decisions, (iv) any types or amounts that do not present a human health risk or hazard to the public, and (v) if such Authorized Facilities and/or B-3 Discrete Components described in Attachment 1 were, at the time of commencement of the acquisition, construction and installation of such Authorized Facilities and/or Discrete Components, propert y of the City and, from such time of commencement through and including the date hereof, remained propert y of the City, those hazardous substances that were present on, under or in such Authorized Facilities and/or Discrete Components at such time of commencement. For Authorized Fees: 1. The undersigned is an authorized representative of the Developer, qualified to execute this request for payment on behalf of the Developer and knowledgeable as to the matters set forth herein. 2. The identity and amount of the Authorized Fees are described in Attachment 1. 3. The Developer has submitted or submits herewith to the Director of Public Works evidence that Authorized Fees referred to in the preceding paragraph have been paid in full, which evidence is in the form of copies of cancelled checks or such other form as the Director of Public Works has approved in writing. 4. The representations and warranties of the Developer in Section 10(a) of the Acquisition Agreement are true and correct on and as of the date hereof with the same force and effect as if made on and as of the date hereof. 5. The Developer represents that it has satisfied the conditions specified in the Acquisition Agreement for the reimbursement of Authorized Fees by the City. I hereby declare under penalty of perjury that the above representations and warranties are true and correct. DUBLIN CROSSING, LLC, a Delaware limited liability company By:________________________________ Name: _____________________________ Title:_______________________________ By:________________________________ Name: _____________________________ Title:_______________________________ B-4 APPROVAL BY THE DIRECTOR OF PUBLIC WORKS I, the undersigned Director of Public Works of the City of Dublin, hereby certify as follows: (i) Dublin Crossing, LLC (the “Developer”), has requested payment of the Purchase Price of the Authorized Facilities and/or the Discrete Components or reimbursement for the Authorized Fees described in Attachment 1 hereto. All references hereafter in this certification to “the Authorized Facilities and/or the Discrete Components” shall be deemed to refer to those Authorized Facilities and/or Discrete Components or those Authorized Fees described in Attachment 1 hereto. (ii) I or persons working under my supervision have confirmed that each of the Authorized Facilities and/or Discrete Components is complete in accordance with the Plans. (iii) The Developer has provided me with satisfactory documentation to demonstrate how Actual Cost for the subject Authorized Facilities and/or Discrete Components was calculated, to establish that the Authorized Facilities and Discrete Components are consistent with those presented in the documentation of Actual Cost, and to establish that the Authorized Fees described in Attachment 1 hereto, if any, have been paid by the Developer. (iv) The Actual Cost of the Authorized Facilities and Discrete Components and the amount of Authorized Fees described in Attachment 1 hereto, if any, have been reviewed, verified and approved by me or persons working under my supervision under the terms specified in Section 5 of the Acquisition Agreement. As such, Payment of the Purchase Price of each of the Authorized Facilities and/or Discrete Components and reimbursement to the Developer for the amount of Authorized Fees described in Attachment 1 hereto is hereby approved. Capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Acquisition Agreement, dated as of July 18, 2017 (the “Acquisition Agreement”), by and between the City of Dublin (the “City”) and the Developer. Dated: _______________________ __________________________________ Gary Huisingh Director of Public Works City of Dublin B-5 ATTACHMENT 1 Authorized Facility, Discrete Component or Authorized Fees Actual Cost Purchase Price Total 3082754.1