HomeMy WebLinkAboutItem 8.5 WestDubPleasantonBART
e
e
e
CITY CLERK
File # n~-HJro
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: December 20, 2005
SUBJECT:
Approval of Funding Agreement between the City of Dublin, San
Francisco Bay Area Rapid Transit District (BART), City of
Pleasanton, and the County of. Alameda for the proposed West
Dublin / Pleasanton BART Station ..
Report Prepared by: Richard. C. Ambrose
City Manager
ATTACHMENTS:
. 1. Resolution and Draft Funding Agreement
2. Memorandum of Understanding dated June 6, 2000
RECOMMENDATION:
#
Adopt the proposed resolution authorizing the City Manager to sign
the Funding Agreement between the City of Dublin, the San
Francisco Bay Area Rapid Transit District (BART), the City of
Pleasanton, and the County of Alameda for. the West Dublin I
Pleasanton BART Station with any minor changes deemed
acceptable by the City Manager and the City Attorney.
FINANCIAL STATEMENT:
This agreement requires the City of Dublin to contribute $2.5
million to a Reserve Fund which col11d be utilized by BART in the
event that Operating Revenues were insufficient to cover Debt
Service and Operating Expenses for the West DublinlPleasanton
. BART Station. Staff proposes the use ofTri-Valley Transportation
Fees to satisfy the City's contribution requirement.
DESCRIPTION: For the past several years, the cities of Dublin and Pleasanton have been
interested in the development of a West Dublin/Pleasanton BART Station. In 1999, the San Francisco
Bay Area Rapid Transit District (BART) entered into negotiations with. a private developer (Jones Lang
LaSalle - now Ampelon Development) for the development of a mixed-use project and a proposed West
DublinlPleasanton BART station at Golden Gate Avenue and 1-580.
To accomplish this project, the cities of Dublin and Pleasanton entered into a Financial Memorandum of
Understanding (M.O.V.) with the San Francisco Bay Area Rapid Transit District (BART) - dated June 6,
2000, to provide a level of :fitlancial assistance to support the W est Dublin BART Station. In that M. O. V.,
the City of Dublin committed to lease the parking structure from BART for a rent equal to the City's
revenues (sales, property, and transient occupancy taxes) from the private development (hotel, retail, and
--A......__ .....---------
COPIES TO:
ITEMNO.-8.~
B1cc-formslagdastmt.doc
IOV3
revenues (sales, property, and transient occupancy taxes) from the private development (hotel, retail, and
residential) for a period of 12 to 17 years. The BART Board approved a plan, in 2001, to construct the .
West DublinIPleasanton BART Station and the joint development of a 17 -acre transit village that would
include a mix of residential, office and hotel uses, as well as BART parking facilities, on BART-owned
properties in Dublin and Pleasanton. e
Economic factors stalled the development of the West Dublin BART Station for severai years as Ampelon
Development searched for investment partners to complete the private development. During the
intervening period, Ampelon Development worked with BART and City Staff on both the private and
public development at the station. With regards to the private development, the Dublin City Council
approved, on March 2,2004, the West DublinBART Specific Plan Amendment, Planned Development
Rezoning, Stage 1 Development Plan and an Inclusionary Zoning Waiver for a project including 210
apartments, 150-room hotel, and a 7,500 square feet commercial pad on approximately 7.26 acres at 6600
Golden Gate Drive, adjacent to the proposed West Dublin BART Station.
Proiect Desilm:
Over the past several years, Ampelon Development has worked closely with BART Staff on the public
development, which includes the construction of a BART Station platform in the median of Interstate 580,
pedestrian bridges connecting the Station and parking garages, as well as parking facilities in .both Dublin
and Pleasanton.The BART garage in Dublin will be a 5-level garage accommodating approximately 720
cars as well as an inter-modal (bus) facility. The Dublin City Council, at a joint meeting with the
Pleasanton City Council, received a presentation from Ampelon Development and BART on the station
and parking garage designs on September 19, 2005.
Proiect Fundin!!:
,."e
In 2001, it was estimated that the construction of the public improvements for the West Dublin BART
Station (Station, Pedestrian Bridges and Garages) would cost approximately $60.5 million. Over the past
four years, several factors (mainly steel and concrete costs) have combined to drive the cost to
approximately $72 million. Those costs include Station and Garages ($63,394,000), Other Development
Costs ($1,670,000) and Contingencies ($6,436,000) for a total budget of $71 ,500,000.
BART anticipates funding the project costs from Prepaid Ground Leases - Private Development ($15.5
million), Bond Proceeds ($42.0 million), and Grant Funds ($14.0 million).
The $14 million in grant funds come from the Tri-Valley Transportation Council ($4 million) and
the Alameda County Congestion Management Authority ($10 million).
At this time, BART is proposing that a new funding agreement be considered between BART and the
cities of Dublin and Pleasanton and Alameda. County to replace the 2000 Memorandum ofVnderstanding.
With this proposal, BART is asking the cities as well as the County of Alameda to make up-front financial
contributions of $ 8 million that would be placed into a reserve account for the debt service on the bonds
only and would only be used to help fund any shortfall in cash flow after debt service and station
operating costs for five years after the start of revenue operations at the West Dublin BART Station. The
contributions would be as follows: Dublin - $2.5 million, Pleasanton - $1 million, and County of
Alameda - $4.5 million. The up-front contributions from the City of Dublin is approximately equivalent
to the property and sales tax revenues that would be received from future development on the West Dublin
BART Station properties within the City of Dublin.
e
21:J3
e
BART has asked that each City and the County commit 50% of the funds at the issuance of bonds
(projected January or February 2006) and that 50% be committed in 2008 when the station opens. The
funding agreement also calls for the returp pf anY unused I!om9P of the cash contribution at the end of the
fifth year of Revenue Operations, which i~ estimated to be in 2013. Under the terms of this agreement,
the City would retain all of the General Fund revenues (property, sales, and transient occupancy taxes)
generated from the Dublin parcel once private development occurs.
Staff recommends the use of the City's Tri-Valley Transportation Fee revenues (20% set-aside) as the
funding source for the City's proposed financial obligation of $2.5 million. Staff estimates that there is
currently almost $1.5 million in the Tri-Valley Transportation Fee fund (to cover the $1.25 million
obligation for 2005). and it is projected that the remaining City obligation ($1.25 million in 2008) would
be available at that time.
Approval of the funding agreement does not commit the City of Dublin to approve the proposed
residential, retail or hotel development proposed for the West Dublin BART site. Ampelon Development,
or their assignee, will process the private component through the standard planning process of the cities.
ANALYSIS: The West Dublin I Pleasanton BART station will serve to revitalize a portion of the
City's central business district through the inclusion of residential and hotel activity. This project serves
as one of the focal points of the City's West Dublin BART Station specific planning effort, and Staff
expects the project will relieve congestion at the East Dublin I Pleasanton BART station, create new
BART ridership, as well as stimulate new development opportunities around the station. Staff believes
that this funding agreement is more favorable to the City of Dublin than the 2000 M.O.D.. because there
are fewer unknowns (City's contribution is fixed in this agreement) and the existence of the reserve will
allow BART to obtain more favorable terms on its bond issuance.
,e
Since the Funding Agreement needs to be approved by four different governmental agencies, Staff
anticipates that there may need to be some minor amendments to the agreement presented to the Dublin
City Council.
RECOMMENDATION: Adopt the proposed resolution authorizing the City Manager to sign the
Funding Agreement between the City of Dublin, the San Francisco Bay Area Rapid Transit District
(BART) and City of Pleasanton and the County of Alameda for the West Dublin I Pleasanton BART
Station with any minor changes deemed acceptable by the City Manager and the City Attorney.
G:\CC-MTGS\2005 cc mtgs\2005-qtr4\Dec\12.20-05\as - BART Funding Agrmt FINAL.doc
It
our;>
l "b it)
RESOLUTION NO.
.
RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
*********~*******
APPROVING A FUNDING AGREEMENT AMONG THE BAY AREA RAPID TRANSIT
DISTRICT, THE ALAMEDA COUNTY SURPLUS PROPERTY AUTHORITY, THE CITY OF
DUBLIN AND THE CITY OF PLEASANTON REGARDING THE WEST
DUBLINIPLEASANTON STATION
WHEREAS, the Bay Area Rapid Transit District (''BART'') owns certain property within the City
on which it intends to construct a new West Dublin/Pleasanton station with parking and other facilities
ancillary thereto (collectively, the "West Station"). BART will issue bonds (the ''Bonds'') to finance all or
a portion of the construction of the West Station. In order to issue and sell the Bonds, BART must
establish certain debt service reserves.
WHEREAS, in connection with constructing the West Station, BART intends to ground lease
and/or sell adjacent property owned by BART for development of hotel, apartment, retail or office
facilities (the "Development Project"), which is expected to result in significant additional tax and fee
revenue and other benefits to the Alameda County Surplus Property Authority, the City of Dublin, and the
City ofPleasanton (collectively the "Funding Parties").
WHEREAS, BART intends to pay (i) debt service on the Bonds from sales tax revenue and from
required debt service reserves, and (ii) operating, repair and maintenance costs attributable to the West
. Station using funds from its general fund. BART intends that funds paid for such debt service and such
operating, repair and maintenance costs will be replenished from revenues derived from the West Station,
such as fares and parking revenues, and from funds contributed to BART by the Funding Parties.
WHEREAS, BART has asked the City, in consideration of BART issuing the Bonds for
construction of the West Station, to contribute to BART an amount equal to $2,500,000, which funds
would be used to establish sufficient debt service reserves. The other Funding Parties have been askedto
make similar contributions. BART proposes that these contributions would be repaid by BART in the
future provided that revenues derived from the West Station are adequate to pay the debt service and
operating expenses.
WHEREAS, BART and the Funding Parties have prepared the draft Funding Agreement attached
hereto as Exhibit A and incorporated herein by this reference that sets forth the terms and conditions of
the funding to be provided by the Funding Parties and the repayment thereof, if any, by BART.
WHEREAS, It is anticipated that certain minor changes to the Funding Agreement may be made
prior to its being executed by each of the parties.
NOW, THEREFORE BE IT RESOLVED THAT, the City Council of the City of Dublin does
hereby find that the commitment of $2,500,000, which is anticipated to come from Tri-Valley
Transportation Development Fees, will facilitate the construction of the West Station by making funds
available to assist with debt service and that any use of such funds for operating, repair and maintenance
. costs is necessary in order for BART to agree to issue bonds f or construction of the West Station; and
12-20-0S-
<6, ::;;;-
ATTACHMENT
1
2.'1J ~'D
BE IT FURTHER RESOLVED THAT the City Council therefore approves the Agreement and
.authorizes the City Manager to execute the Funding Agreement in its final form provided that revisions to
the Agreement do not substantially alter the content and form of the Agreement from that which is set .
forth in Exhibit A and such revisions are acceptable to the City Manager and City Attorney.
PASSED, APPROVED, AND ADOPTED this 20th day of December 2005, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
City Clerk
.
.
e
e
e
6d... 2'0
TRP DRAFT 12/16/0'U
FUNDING AGREEMENT
This FUNDING AGREEMENT (this "Agreement"), dated as of , 2005 (the
''Effective Date"), is entered into among San Francisco Bay Area Rapid Transit District, a rapid
transit district established pursuant to Public Utilities Code Section 28500 et. seq. ("BART"),
Alameda County Surplus Property Authority, a California public body, corporate and politic (the
"Authority"), the City of Dublin, a California municipal corporation ("Dublin"), and the City of
Pleasanton, a California municipal corporation ("Pleasanton", and the Authority, Dublin and
Pleasanton, individually, a "Funding Party" and, collectively, the "Funding Parties"). Certain
capitalized terms used in this Agreement are defined in Section 1 hereof.
RECITALS
A. BART intends to construct a new West DublinlPleasanton station with parking
and other facilities ancillary thereto (collectively, the "West Station"). BART will issue bonds
(the "Bonds") to finance all or a portion ofthe construction of the West Station. In order to issue
and sell the Bonds, BART must establish certain debt service reserves.
B. In connection with constructing the West Station, BART intends to ground lease
and/or sell adjacent property owned by BART for development of hotel, apartment, retail or
office facilities (the "Development Project"), which is expected to result in significant
additional tax and fee revenue and other benefits to the Funding Parties.
C. BART will pay (i) debt service on the Bonds from sales tax revenue and from
required debt service reserves, and (ii) operating, repair and maintenance costs attributable to the
West Station using funds from its general fund. Funds paid for such debt service and such
operating, repair and maintenance costs will be replenished from Revenues (as defmed below)
derived from the West Station and from funds granted to BART pursuant to this Agreement.
D. In consideration of BART issuing the Bonds for construction of the West Station,
each Funding Party desires to grant funds to BART in an amount equal to the amount of its
commitment set forth on Schedule 1 attached to and incorporated into this Agreement (each, a
"Commitment") on the terms and subject to the conditions of this Agreement.
E. On the Settlement Date, BART will repay the funds to the Funding Parties on a
pro rata basis to the extent that they are not used by BART for the purposes described herein.
F. BART and the Funding Parties desire to set forth herein the terms and conditions
of the funding to be provided by the Funding Parties and the repayment thereof, if any, by
BART.
G. BART, Dublin and Pleasanton have entered into that certain Memorandum of
Understanding dated as of July 5,2000 (the "MOD") with regard to financing construction of the
EXHIBIT A
~1JZD
West Station. The parties hereto intend that the terms and conditions contained in this
Agreement shall replace and supercede the MOU and the terms and conditions contained therein.
e
The parties therefore agree as follows:
1. Dermed Terms and Interpretation
(a) Defined Terms. The following capitalized terms have the following
meamngs:
"Operating Expenses" means, for any particular year, the collective costs and
expenses incurred by BART relating to or in connection with the West Station, including without
limitation, costs and expenses for operation, repair and maintenance; labor (including station
agents, police and maintenance personnel); utilities; and supplies. In the Preliminary Proforma,
Operating Expenses are described as "Station and Parking Expenses".
"Person" means any natural person, partnership, corporation, association,
business trust, limited liability company, or other entity, or any government or any political
subdivision or agency thereof.
"Proforma" means the proforma projections for Operating Expenses and
Revenues as contained in Exhibit A hereto. The parties hereto acknowledge and agree that (i)
the documents entitled "Project Cash Flows, Conservative Case" and "Project Cash Flows, Best
Case" attached hereto as Exhibit A set forth the initial projections for Operating Expenses and
Revenues for the West Station as of August 17, 2005 (collectively, the "Preliminary .
Proforma"), and (ii) such initial proforma projections shall be replaced with the final proforma
projections for Operating Expenses and Revenues for the West Station upon closing of the Bond
issuance and such final proforma projections shall constitute the "Proforma" hereunder.
"Revenues" means, for any particular year, the collective revenues generated
from the West Station, including the parking facilities ancillary thereto. In the Preliminary
Proforma, Revenues are described as "Actual BART Revenue".
"Revenue Service Date" has the meaning given in Section 2(b).
"Settlement Date" means 180 days after the Termination Date; provided,
however, if such date is not a business day in California, then the "Settlement Date" shall be the
next business day.
"Termination Date" means the 5th anniversary of the Revenue Service Date.
(b) Interpretation. Except where otherwise expressly provided or unless the
context otherwise necessarily requires, (i) references to Sections, paragraphs, clauses, Schedules
or Exhibits without further reference are to Sections, paragraphs or clauses of, or Schedules or
Exhibits to, this Agreement, (ii) reference to a Person includes its successors and permitted
assigns, (iii) all references to a contract, agreement or instrument herein shall mean such
contract, agreement or instrument and all exhibits, schedules and other attachments thereto, as
any such contract, agreement or instrument may be assigned, amended, supplemented or .
2
SF #1009882 v4
e
e
500 -z:o
otherwise modified in accordance with, and not otherwise in contravention of, the provisions of
such contract, agreement or instrument, (iv) references to any term in this Agreement when used
in the singular shall have the same meanings when used in the plural and vice versa,
(v) "includes" or "including" means "including, for example and without limitation," and
(vi) "or" is not exclusive.
2. . Funding
(a) Grant of Commitments. Subject to the conditions of and on the terms
provided in this Agreement, each Funding party hereby grants to BART an amount equal to its
Commitment which shall be disbursed to BART in two equal installments (consisting of 50% of
such Commitment) on each of two dates as set forth in Section 2(b) (the "Funding Dates").
Each Funding Party's Commitment is independent of the other Funding Parties' Commitments,
such that each Funding Party shall be required to fund its entire Commitment to BART
notwithstanding any failure by another Funding Party to fund all or a portion of its Commitment.
Each Funding Party's obligation to fund its Commitment is and shall be absolute and
unconditional and is not, and shall not be, subject to any defense or right of set-off, counterclaim,
deduction or any other legal or equitable defense that such Funding Party has, or hereafter may
have, against any other Person (including BART) for any reason whatsoever. The parties hereto
acknowledge that the consideration for each Funding Party's agreement to grant its Commitment
to BART is BART's agreement to issue the Bonds for construction of the West Station.
(b) Funding Notices. At least 10 days prior to each Funding Date, BART
shall deliver to each Funding Party an executed notice in the form of Exhibit B attached to and
incorporated into this Agreement (each, a "Funding Notice") specifying the Funding Date and
that such Funding Party is required to fund 50% of its Commitment on such Funding Date. The
Funding Date for the first installment of each Funding Party's Commitment shall be the closing
date of the Bond issuance, which is currently estimated to occur in January 2006. The Funding
Date for the second installment of each Funding Party's Commitment shall be the date that
"revenue service" commences under the Bonds (the "Revenue Service Date"), which is
currently expected to occur in January 2008.
(c) Funding Instructions. Prior to 11:30 a.m., Oakland, California time on
each Funding Date, each Funding Party shall pay 50% of its Commitment to BART by
transferring such amount in immediately available funds into an account maintained in the name
of BART (the "Account") as identified in the wire instructions attached to the Funding Notice
3. Use and Disbursements of Funds
(a) Permitted Use of Principal. If Revenues are insufficient to cover (i) debt
service for the Bonds, and (ii) Operating Expenses for the West Station, then BART shall be
permitted to use, in its sole discretion, the funds deposited by the Funding Parties into the
Account (the "Principal").
(b) Disbursements of Principal. Prior to disbursing Principal from the
Account, BART shall deliver to each Funding Party an executed notice in the form of Exhibit C
e attached hereto (each, a "Disbursement Notice"), which Disbursement Notice shall have
3
SF #1009882 v4
lR7J ~o
. attached thereto a calculation indicating how BART determined the amount of Principal to be
disbursed from the Account. Attached hereto as Schedule 2 is the methodology that BART will _
utilize in making such calculation. Each Funding Party hereby acknowledges and agrees that it ..
shall have no right to challenge the disbursement amount set forth in the Disbursement Notice or
BART's calculation thereof.
(c) Investments and Interest. BART shall be permitted (i) to invest all
funds deposited in the Account in accordance with BART's investment policy, as modified from
time to time, and (ii) to disburse and otherwise segregate all interest that accrues on Principal in
the Account into one or more accounts maintained in the name of BART (collectively, the
"Interest Account") at any time and from time to time until the Termination Date; provided, that
BART shall withdraw (or transfer to the Interest Account) all accrued interest from the Account
no later than the Termination Date. All interest that accrues on the funds in the Account up to the
Termination Date shall be for the benefit of BART; all interest that accrues on the Principal in
the Account from the Termination Date through and including the Settlement Date shall be for
the benefit of the Funding Parties. All interest that accrues on the funds in the Interest Account
shall be for the benefit of BART. BART may use all accrued interest on funds in the Account up
to the Termination Date, as well as all accrued interest in the Interest Account, for any purpose in
BART's sole discretion.
(d) BART Control of Account. As between the parties, BART shall have
sole control over, and no Funding Party shall have any interest in or lien on, the Account, the
Interest Account, or any funds or proceeds maintained in the foregoing, with the exception of
those rights of repayment of the Principal to the Funding Parties pursuant to the terms of this _
Agreement. ..
4. Payments
(a) Payment Amounts and Timing. On the Settlement Date, BART shall
return to each Funding Party (i) any remaining Principal from the Account, and (ii) all interest on
Principal in the Account that accrued from the Termination Date through and including the
Settlement Date, in each case on a pro rata basis (with the amount of the Commitment funded by
such Funding Party as the numerator and the total Commitments funded by all Funding Parties as
the denominator). Except as set forth in this Section 4(a), BART shall have no obligation (i) to
pay any interest, fees or other return on any Principal or (ii) to return any funds to the Funding
Parties other than Principal (if any) that is in the Account on the Termination Date. For the
avoidance of doubt, the parties hereto acknowledge and agree that BART shall have no
obligation to return any funds to the Funding Parties if there are no funds in the Account on the
Termination Date.
(b) Method and Place of Payment. BART shall disburse to each Funding
Party the funds required pursuant to Section 4(a) above, by check or wire transfer, as each
Funding Party may so instruct BART in accordance with Section 9(c).
5. Representations, Warranties and Acknowledgments
(a)
BART hereby represents and warrants to the Funding Parties as follows:
.
4
SF #1009882 v4
e
.
e
'1 ~ tV
(i)
the State of California.
BART is a rapid transit district validly existing under the laws of
(ii) The execution and delivery by BART of this Agreement and the
performance of its obligations hereunder (A) have been dilly authorized by all requisite district
actions and proceedings, (B) do not and will not contravene or conflict with or cause any breach
of default under any provision of any agreement or instrument to which BART is a party or by
which it or any of its properties is bound, (C) do not and will not contravene or conflict with any
applicable law, rule or regulation, and (0) do not and will not require any consent or approval of
any Person that has not already been obtained.
(iii) This Agreement has been duly executed and delivered by BART
and constitutes the valid and legally binding obligations of BART, enforceable against BART in
accordance with its terms, except to the extent that enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium 'or similar laws and subject to general
equitable principles.
(b) Each Funding Party hereby represents and warrants (only as to itself) to
BART and the other Funding Parties as follows:
(i) It is the type of entity indicated in the preamble and is validly
existing under the laws of the State of California.
(ii) Its execution and delivery of this Agreement and the performance
of its obligations hereunder (A) have been duly authorized by all requisite actions and
proceedings of its governing body, (B) do not and will not contravene or conflict with or cause
any breach of default under any provision of any agreement or instrument to which it is a party
or by which it or any of its properties is bound, (C) do not and will not contravene or conflict
with any applicable law, rule or regulation, and (D) do not and will not require any consent or
approval of any Person that has not already been obtained.
(iii) This Agreement has been duly executed and delivered by it and
constitutes its valid and legally binding obligations, enforceable against it in accordance with the
terms hereof, except to the extent that enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws and subject to general equitable
principles.
6. Operating Expenses
Until the Termination Date, BART shall use commercially reasonable efforts to deliver to
each Funding Party, within 45 days after each anniversary of the closing date of the Bond
issuance, a written indication as to (a) whether actual Operating Expenses for the trailing 12
month period exceeded projected Operating Expenses for such period as set forth in the
Proforma, and (b) whether actual ridership with regard to the West Station for the trailing 12
month period did not meet proj ected ridership for such period.
7.
Events of Default
5
SF #1009882 v4
~r1b --1,0'
(a) By BART. The occurrence of anyone or more of the following events
shall constitute a "BART Event of Default" (but only with respect to the Funding Party or
Parties to which BART has committed the BART Event of Default):
e
(i) BART defaults in the performance of or compliance with any of
BART's obligations, covenants or agreements under this Agreement and such default continues
unremedied for 30 days after written notice thereof to BART; or
(ii) any representation or warranty made by BART in this Agreement
contains any untrue statement of a material fact as of the Effective Date, and such misstatement
remains material and continues unremedied for 30 days after written notice thereof to BART.
(b) By Funding Parties. The occurrence of anyone or more of the following
events shall constitute a "Funding Party Event of Default" (but only with respect to the
particular Funding Party that committed the Funding Party Event of Default, such that a Funding
Party Event of Default committed by a particular Funding Party shall not in itself constitute a
Funding Party Event of Default of all Funding Parties):
(i) A Funding Party fails to fund the portion of its Commitment within
five days after the Funding Date when such funding is required under Section 2;
(ii) A Funding Party defaults in the performance of or compliance with
any of its obligations, covenants or agreements under this Agreement, other than those specified
in Section 7(b)(i) above, and such default continues unremedied for 30 days after written notice
thereof to such Funding Party; or e
(iii) any representation or warranty made by a Funding Party to BART
in this Agreement contains any untrue statement of a material fact as of the Effective Date, and
such misstatement remains material and continues unremedied for 30 days after written notice
theroofto such Funding Party.
8. Remedies. Upon the occurrence of a BART Event of Default, the affected
Funding Party shall be entitled to pursue and enforce against BART any and all of the rights and
remedies available to it in law or equity. Upon the occurrence of any Funding Party Event of
Default, BART shaH be entitled to pursue and enforce against the Funding Party whose act,
omission or misstatement formed the basis for such Funding Party Event of Default any and all
of the rights and remedies available to BART in law or equity, including specific performance.
9. Miscellaneous.
(a) No Waiver. No failure or delay on the part of a Funding Party in
exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy hereunder or thereunder.
(b) Amendments, etc. No amendment, modification, termination or waiver
of any provision of this Agreement, or consent to any departure by any party therefrom, shall be
effective unless it is in writing and signed by the party against whom enforcement is sought, and e
6
SF #1009882 v4
q WfJ ~o
e
then such waiver or consent shall be effective only in the specific instance and for the specific
purpose for which given.
(c) Notices. Any notice, invoice, demand, offer or other written instrument
required or permitted to be given pursuant to this Agreement (unless expressly permitted to be
sent electronically) shall be in writing signed by the party giving such notice and shall, to the
extent reasonably practicable, be sent by facsimile, and if not reasonably practicable to send by
facsimile, then by hand delivery, overnight courier, or registered mail, to the other parties at the
address set forth below:
If delivered to BART:
San Francisco Bay Area Rapid Transit District
300 Lakeside Drive, 16th Floor
Oakland, CA 94612
Attn: Jeffrey Ordway, Manager of Property Development
Fax: (510) 464-7673
If delivered to the Authority:
.
Alameda County Surplus Property Authority
224 W. Winton Avenue, Room 110
Hayward, CA 94544-1215
Attn: Patrick Cashman, Director
Fax: (510) 670-6374
If delivered to Dublin:
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attn: Richard Ambrose, City Manager
Fax: (925) 833-6651
If delivered to Pleasanton:
City of Pleasant on
123 Main Street
P.O. Box 520
Pleasanton, CA 94566-0802
Attn: Nelson Fiahlo, City Manager
Fax: (925) 931-5482
Each party shall have the right to change the place to which notice shall be sent or delivered or to
specify one additional address to which copies of notices may be sent, in either case by similar
e notice sent or delivered in like manner to the other parties.
7
SF #1009882 v4
IO'tlO
(d) Timing of Receipt. Without limiting any other means by which a party
may be able to prove that a notice has been received by the other parties, a notice shall be .a
deemed to be duly received if (i) delivered by hand or overnight courier, the date when left at the ..
address of the recipient, (ii) sent by registered mail, the date of the return receipt, or (iii) sent by
facsimile, on the date of receipt by the sender of an acknowledgment or transmission report
generated by the machine from which the facsimile was sent indicating that the facsimile was
sent in its entirety to the recipient's facsimile number. If a party is required or permitted to
respond to a notice from another party within a specified period, such period shall run from the
date on which the notice was deemed received as above provided, and the response shall be
considered to be timely given if given as above provided by the last day of such period.
(e) Assignment. No party shall assign any of its rights, nor delegate any of
its duties or obligations, under this Agreement; provided, however, BART may assign its rights
under this Agreement, the Account (and the proceeds and funds therein) and the Interest Account
(and the proceeds and funds therein) to any financing party or other party in connection with
issuance of the Bonds. In the event that BART assigns its rights under this Agreement, BART
shall not be released from its obligations under this Agreement.
(f) Fees and Expenses. Each party shall bear its own costs and expenses
incurred in connection with the negotiation, preparation, enforcement and collection of this
Agreement, including all reasonable attorneys' fees and disbursements and court costs, except
that if any action is instituted to enforce any of the provisions of this Agreement, the prevailing
party in such action shall be entitled to recover from the other party or parties thereto reasonable
attorneys' fees and costs incurred in connection with such enforcement or collection as part of A
the judgment. .,
(g) Governing Law. This Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of California, and the parties submit to the non-
exclusive jurisdiction of the Superior Court of the State of California for the County of Alameda,
Oakland Division.
(h) Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions hereof or affecting
the validity or enforceability of such provision in any other jurisdiction.
(i) Headings. The Section and paragraph headings herein are for
convenience only and shall not affect the construction or interpretation hereof.
(j) Entire Agreement. This Agreement contains the full, final and exclusive
statement of the agreement relating to the subject matter hereof. Any previous agreement or
understanding among any of BART and the Funding Parties, whether written or oral, with
respect to the subject matter covered by this Agreement, including the MOU, is hereby
superseded. It is the express intent of the parties hereto that the terms and conditions contained
in this Agreement shall replace and supercede the MOD and the terms and conditions contained
therein.
e
8
sF #1009882 v4
llt1J 1-0
IN WITNESS WHEREOF, the Funding Parties and BART have caused this Agreement
. to be duly executed as of the Effective Date.
BART:
San Francisco Bay Area Rapid Transit
District
By:
Title:
The Authority:
Alameda County Surplus Property
Authority
By:
Title:
Dublin:
City of Dublin
e
By:
Title:
Pleasanton:
City of Pleasanton
By:
Title:
e
l2'6 z 0
EXHIBIT A to
Funding Agreement .
PROFORMA
[See attached.]
e
e
e
e
e
13~ZO
EXHIBIT B to
Funding Agreement
FORM OF
FUNDING NOTICE
Alameda County Surplus Property Authority
r 1
r 1
Attention:
City of Dublin
r
r
Attention:
1
1
City of Pleasant on
[ 1
r 1
Attention:
Re: Funding Notice
This Funding Notice is delivered to you pursuant to Section 2 of that certain Funding
Agreement, dated as of , 2005 (the "Funding Agreement") among San Francisco Bay
Area Rapid Transit District ("BART"), Alameda County Surplus Property Authority, the City of
Dublin and the City of Pleasanton. All capitalized terms used and not otherwise defmed herein
have the respective meanings specified in the Funding Agreement.
This Funding Notice constitutes a request for a Funding as set out below:
1.
The requested Funding Date is
,200_,
2. The amount of the requested funding from each Funding Party is equal to Y2 of
such Funding Party's respective total Commitment, which are the following amounts: (a)
Alameda County Surplus Property Authority--$2,250,000; (b) City of Dublin--$1,250,000; and
(c) City ofPleasanton--$500,OOO.
3. Funds shall delivered by wire transfer to BART in accordance with the attached
wire instructions.
This Funding Notice shall become effective upon receipt by each Funding Party, and
each Funding Party shall make the funding requested hereunder no later than the Funding Date
(or, iflater, the date that is 10 days after such Funding Party received this Funding Notice).
San Francisco Bay Area Rapid Transit District
By:
Title:
I tft '10
EXHIBIT C to
Funding Agreement
FORM OF
DISBURSEMENT NOTICE
.
Alameda County Surplus Property Authority
r 1
r 1
Attention:
City of Dublin
r
r
Attention:
1
1
City of Pleasant on
r 1
r 1
Attention:
Re: Disbursement Notice
This Disbursement Notice is delivered to you pursuant to Section 3 of that certain
Funding Agreement, dated as of , 2005 (the "Funding Agreement") among San
Francisco Bay Area Rapid Transit District ("BART"), Alameda County Surplus Property
Authority, the City of Dublin and the City of Pleasanton. All capitalized terms used and not
otherwise defined herein have the respective meanings specified in the Funding Agreement.
BART shall disburse Principal from the Account as set out below:
e
I. The amount of Principal to be disbursed from the Account is $
("Disbursement Amount"), which amount has been determined pursuant to the calculation
attached hereto.
2. The Disbursement Amount will be disbursed on
3. The Disbursement Amount shall be used to replenish funds paid by BART for:
D Operating Expenses for the West Station.
o Debt service for the Bonds.
San Francisco Bay Area Rapid Transit District
By:
Title:
e
SF #1009882 v4
e
COMMITMENT OF FUNDING PARTIES
l5l1b20
Schedule 1 to
Funding Agreement
Funding Party
Commitment Amount
Alameda County Surplus Property
Authority
City of Dublin
$4,500,000
City of Pleasant on
$2,500,000
$1,000,000
e
e
SF #1009882 v4
IlRq;w
Schedule 2 to
Funding Agreement
e
METHODOLOGY FOR CALCULATION
Ridership x fares + parking revenues = revenue
Station and parking expenses + debt service = expenses.
Compare revenue to expenses to determine whether there is either a net surplus or
shortfall
e
e
SF # 1009882 v4
ll~ 20
e
MEMORANDUM OF UNDERSTANDING
This Memorandum of Understanding among the San Francisco Bay Area Rapid
Transit District ("BART"), the City of Dublin (''Dublin'') and the City of Pleasant on
("Pleasanton") contains the commitment of the parties hereto to the financing oftbe BART
station at West DublinIPleasanton.
FACTS:
e
BART has entered into negotiations with Jones Lang LaSalle Project and
Development Management ("LaSalle'') to develop property around the approved BART station
at West DublinlPleasanton (the "Station"). As part of the joint development, LaSalle, on behalf
of BART, will cause construction of the Statio~ to be completed in the 1-580 highway median,
connected by pedestrian bridges to two parking garages to be constructed. one located in
Pleasanton and one located in Dublin (collectively the parking garages, pedestrian bridges and
Station are referred to herein as, the "Station Project"), and LaSalle will develop other property
adjacent to the parking garages for commercial uses, which may include apartment units, a hotel
and/or office facilities in Dublin and an office and retail facility in Pleasanton (the ''Development
Project"). BART currently OVlfnS the land on which the Development Project and the parking
garages will be constructed and has or will obtain with CalTrans an agreement or agreements to
develop the Station in the freeway right-of-way. As part ofits contribution to the joint
development, it is contemplated that LaSalle will prepay the ground lease rental for the
Development Project. To further make financing of the Station Project feasible, it is proposed
that Dublin and Pleasanton (the "Cities") contribute revenues generated from the Development
Proj ect, consisting solely of City property taxes, City sales taxes and City transient occupancy
fees (the "City Project Revenues''). BART is planning on using some combination offare box
revenue generated from the Station, fare surcharges and parking charges from the parking
garages and/or other sources subsequently identified (the "BART Revenues"), as well as the
prepaid ground lease to complete the financing package. By entering into this Memorandum of
Understanding, the Cities are making no commitqlent to :8PProve the Development Project.
PROPOSED FINANCING STRUCTURE:
In order to raise the necessary funds to construct the Station Project, a lease
financing with the Association of Bay Area GOvernments ("ABAG''), ajoint powers authority, is
proposed. To obtain an issuer for the proposed debt, BART will join ABAG as an associate
member. ABAG wiU utilize the joint powers authority law to issue bonds to raise the necessary
funds (above the LaSalle prepaid rent) to build the Station Project. BART will lease to
Pleasanton the land on which the proposed parking garage in Pleasanton is to be constructed (the
''Pleasanton Lease") and Pleasanton will transfer its leasehold estate (but not the obligation to
pay rent) to ABAG. BART will lease the land underlying the proposed garage in Dublin and
assign BART's rights with respect to the Station location to ABAG. The Station Project will be
constructed with the bond proceeds and leased back by ABAG to BART. As rental payment for
the leaseback, BART will pay rent sufficient to pay principal of and interest on the bonds.
e BART will in turn sublease the Dublin parking garage to Dublin (the ''Dublin Lease''). As
DOCSSFI :416111.7
ATTACHMENT 2
1'6 Db ZD
consideration for the Pleasanton Lease and the Dublin Lease, the Cities will respectively pay _
BART rent equal to the City Project Revenues. Projections anticipate that BART Revenues plus
the City Proj ect Revenues will be sufficient to cover the debt service on the bonds without
requiring contribution from BART's general fund. However, if revenues are insufficient in any
year, BART will be obligated to pay the debt service on the bonds from its general fund.
The lease structure assumes that ABAG will enter into a trust agreement with a
trustee pursuant to which the bonds will be issued. In addition, ABAG will enter into a site lease
from BART and a leaseback to BART, and BART will enter into the Pleasanton Lease and the
Dublin Lease and an operating agreement between Dublin and BART, pursuant to which
operating agreement BART will retain operating responsibilities and liability for the Dublin
parking garage. ABAG will pledge to the trustee under the trust agreement the rental payments
received from BART for the leaseback of the Project.
AGREEMENT:
Dublin, Pleasanton and BART hereby agree to cooperate in a financing of the
Station Project. BART agrees, pursuant to the proposed financing structure and subject to the
direction of the BART Board following appropriate environmental review under the California
Environmental Quality Act (Public Resources Code 9 21000 e1. seq.), to cause the Station
Project to be built from the proceeds of the ABAG Bonds. BART pledges to use the BART
Revenues, as determined by BART in good faith, to pay debt service on the Bonds. BART also
agrees in the event that such BART Revenues are sufficient on their own for a period of two ~
consecutive years to pay for debt service on the outstanding Station Project bonds that BART _
and the Cities will terminate their respective leases and the operating agreement; provided that
such termination shall not occur prior to the twelfth anniversary of the issuance ofthe bonds.
Dublin agrees to enter into a.lease with BART to lease the parking garage located
in Dublin from BART and to pay as rental for such lease all ad valorem property tax revenues
received by Dublin with respect to the Development Property, any sales tax revenues received by
Dublin in connection with sales originating in the Development Property and any transient
occupancy tax revenues derived from any hotel operations on the Development Project and
received by Dublin. All such revenues shall be paid to BART pursuant to the terms of the
Dublin Lease until the earlier of the seventeenth anniversary oftl,1e issuance of the bonds or the
termination of the Dublin Lease by BART and Dublin pursuant to the prior.paragraph.
Pleasanton agrees to enter into a lease with BART to lease BART land located in
Pleasanton and to pay as rental for such lease all ad valorem property tax revenues received by
Pleasanton with respect to the Development Property and sales tax revenues received by
Pleasanton in connection with sales originating in the Development Property and received by
Pleasanton. All such revenue shall be paid to BART pursuantto the tenns of the Pleasanton
Lease until the earlier of the seventeenth anniversary of the issuance of the bonds or the
termination of the Pleasanton Lease by BART and Pleasanton in accordance with the first
paragraph under this heading.
Dublin and BART agree to enter into an operating agreement or agreements _
pursuant to which BART will assume responsibility and liability for operating and maintaining .
DOCSS F1 :426111.1
2
lOft!{> -ZO
-
the Dublin parking garage. BART will bave all responsibility and liability for operating and
maintaining the parking garage located in Pleasanton under the leaseback from ABAG.
BART agrees that any amounts received by BART from the City Revenues and
BART Revenues that exceed debt service in any year will be used to defease or retire principal
payments on the bonds resulting in a reduction in annual debt service. Any excess City
Revenues and BART Revenues available upon the date of termination of the Dublin Lease and
the Pleasanton Lease (the "City Leases") and not used to defease or retire bonds on or prior to
the date oftennination shall be divided pro rata among BART, Dublin and Pleasanton based on
the respective aggregate amounts that each such agency contributed to the payment of debt
service on the bonds. Prior to termination of the City Leases, on an annual basis BART shall
provide to the Cities a cash flow statement setting forth for the prior fiscal year the BART
Revenues, the City Project Revenues, the debt service paid and principal amount of Bonds
outstanding and any accumulated deficit allocable to the financing.
For the purposes of this Memorandum it is assumed that the Bonds will be fixed
rate bonds with a thirty-year level amortization. It is understood that the interest rates and debt
service and final structure of the bond issue will be determined by BART at the time the Bonds
are sold. If BART notifies the Cities that it is unable to conclude an acceptable agreement with
LaSalle, or complete appropriate environmental review or determines that the financing is not
feasible for any reason, the Bonds will not be issued and this Memorandum of Understanding
will be null and void.
--
EXECUTION IN COUNTERPARTS:
This Memorandum of Understanding may be executed in several counterparts,
each of which shall be regarded as an original and all of which shall constitute one and the same
document.
-
DOCSSFI :426111.7
3
2D ff.L? 0
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be ..
executed by their authorized representatives as of this 5th day ofJuly, 2000. ..
SAN FRANCISCO BAY AREA RAPID TRANSIT
DISTRICT
B~~
Title: .. .
CITY OF DUBLIN
B~'~~
Title: ~ .
CITY OF PLEASANTON
--
BY~<::Y\QU,-- ~.
Title: ~J1y MAAJA-{;€R.
-
DOCSSF1,4Z6111.7
4