HomeMy WebLinkAbout6.4 FairwayRanchAffordHsg CITY CLERK
File # 600-30
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: August 5, 2003
SUBJECT: Public Hearing: PA 03-010, Fairway Ranch Affordable Housing
Community, Approval of a Joint Exercise of Powers Agreement
and Issuance of Multifamily Housing Revenue Bonds by the
California Statewide Communities Development Authority
(CSCDA) and approving an Agreement with CSG Advisors.
Report Prepared By: Julia Abdala, Housing Specialist
ATTACHMENTS: 1. Resolution approving Membership of the City of Dublin in
California Statewide Communities Development Authority
(CSCDA) for the issuance of Multifamily Housing Revenue
Bonds for Fairway Ranch
2. Resolution for the Tax Equity and Fiscal Responsibility Act
(TEFRA) for the issuance of Multifamily Housing Revenue
Bonds for Fairway Ranch
3. Resolution for Agreement with CSG Advisors to serve as Bond
Financial Advisor for the City of Dublin
RECOMMENDATION: 1. Adopt Resolution approving City of Dublin membership in the
,,/~~/~ Statewide Communities Development Authority (CSCDA)and
authorize the Mayor to sign the Agreement
2. Open TEFRA Hearing and receive Staff presentation
3. Take testimony from the Applicant and the Public
4. Question Staff, Applicant and the Public
5. Close the TEFRA Hearing and deliberate
6. Adopt TEFRA resolution approving the issuance of the Bonds.
7. Adopt Resolution approving Agreement with CSG Advisors to
serve as Bond Financial Advisor for the City of Dublin and
authorize the City Manager to sign the Agreement on behalf of
the City.
FINANCIAL STATEMENT: Neither the TEFRA Hearing, nor the membership in CSCDA
commit the City of Dublin to any amount of financing. Membership
in CSCDA is a Joint Exercise of Powers Agreement and there is no
cost to join. The Agreement with CSG Advisors for bond finance
advisory services may cost up to $100,000 depending on the
complexity of the procedures, which are still not known, however
under no circumstances shall total compensation exceed $100,000.
The funding for this agreement will come from the proceeds of the
COPIES TO: In-House Distribution
Dublin Ranch
F:kDocuments from old computerLAgreements & StaffRpts\CC Staff ReportTEFRA V (Richs) Hearing CSCDA membership. DOC L ~
ITEM NO.
Multifamily Housing Revenue Bonds that will be issued, not from
the City of Dublin. The fees being charged for financial advisory
services are within the industry standards per the City of Dublin's
financial consultant from Vavrinek, Trine, Day and Company.
BACKGROUND:
At the February 18, March 4, and April 1, 2003 City Council meetings, the City Council conceptually
considered a proposal by the Lin Family to construct a three-phase, 930-unit project in Dublin Ranch
Area B consisting of senior, multi-family and condominium developments with an aggregate total of 589
affordable units designed to satisfy the inclusionary zoning obligation for the Fairway Ranch project site
for the development of up to 2,655 units in the remainder of Dublin Ranch.
On July 1, 2003 the City Council approved the Site Development Review for. Fairway Ranch with the
density bonus the developer was seeking and approved the execution of loan commitments pursuant to
which the City will provide funding for the Project, contingent upon the issuance of tax-exempt bonds.
On July 15, 2003 all four Development Agreements that will regulate the development were approved.
The tax-exempt bond applications for both the Senior Project and the Family Apartments were delivered
to the California Debt Limit Allocation Committee (CDLAC) in Sacramento on July 16, 2003 by the
developers.
ANALYSIS:
The City of Dublin must complete two more tasks for Fairway Ranch to be eligible to compete for a bond
allocation.
First, the City of Dublin must join the Authority that will issue the bonds as a program participant. The
developer has requested California Statewide Communities Development Authority (CSCDA) to be the
issuer of the bonds. The City of Dublin must join this entity in order to allow for the bonds to be issued
for a project within the City limits. Attachment 1 is the Resolution authorizing the City of Dublin to join
CSCDA for the purposes of this bond issuance and Exhibit A of this Resolution is the Amended and
Restated Joint Exercise of Powers Agreement pursuant to which the City would join C SCDA.
California Statewide Communities Development Authority is a joint powers authority with membership
throughout California. 240 cities throughout California maintain membership in this Authority from
small Central Valley cities to large Northern and Southern California cities. The Authority was created
for the purpose of issuing private activity bonds for various public purposes including the acquisition,
construction or rehabilitation of low-income housing by private and nonprofit developers.
Second, a public hearing known as a TEFRA hearing must be held per the 1982 Tax Equity and Fiscal
Responsibility Act. The hearing provides City Council approval of CSCDA issuing bonds to finance
Fairway Ranch. The proceeds of the bonds will provide development and construction funds for the
developer at a lower cost than funds borrowed in a conventional bank loan. Attachment 2 is the
Resolution Approving the Issuance of Multifamily Housing Revenue Bonds. The purpose of the public
hearing is to inform residents of the City of Dublin that tax-exempt bonds may be funding development in
Dublin and allow for any comments or concerns to be addressed. Notice of the TEFRA hearing has been
published in a local newspaper of general circulation, as required, fourteen days prior to the public
hearing.
It is also desirable that the interests of the City of Dublin be represented during the bond issuance process.
For this reason Staff recommends that CSG Advisors serve as the bond financial advisor for the City of
Dublin in these transactions. CSG Advisors has been assisting the City in some phases of the entitlement
and negotiation process and has ample experience to provide advice if the project receives an allocation
for the issuance of tax-exempt bonds.
The type of services CSG Advisors would provide include:
1. Work on behalf of the City with respect to the transaction in reviewing documents, offering
statements, bond structure, credit enhancement, and changes in sources and uses, and pro
forlBa.
2. Identify issues and choices that may affect the City and bring to the City Staff's attention,
including indemnification, effect of phasing and timing of development and City affordability
requirements and enforcement.
3. Assist in reviewing the CDLAC point scoring for each application, competitiveness of
application and options and suggestions including input from CDLAC Staff.
4. Help coordinate schedule with City actions, review application and bond status and deadlines
with City Staff and attorneys.
5. Help develop the content of the Loan Agreement yet to be negotiated with the developers.
6. Assist in bond closing
Attachment 3 is a Resolution approving using CSG Advisors as a bond financial advisor for the City,
Exhibit A to this Resolution is the agreement with CSG Advisors drafted by the Office of the City
Attorney, and Exhibit B is an Obligation to Compensate Letter from Martin W. Inderbitzen on behalf of
Dublin Ranch Senior Apartments, LP and Fairway Family Community, LP. The funding for this
agreement with CSG Advisors, not to exceed $100,000, is fully paid by bond proceeds and is contingent
on bond closing. If the bonds do not sell and close, CSG Advisors do not receive any compensation.
CONCLUSION:
Fairway Ranch developers have now applied for tax-exempt bonds to finance the first two affordable
projects: the Dublin Ranch Senior Housing and Fairway Family Apartments. In order to have the bonds
issued the City of Dublin must join the Joint Powers Authority that would issue the bonds, the California
Statewide Communities Development Authority, and conduct a TEFRA Hearing. Additionally, CSG
Advisors would represent the City of Dublin interests if the City Council chose to approve the agreement.
RECOMMENDATION:
1. Adopt resolution approving City of Dublin membership in the Statewide Communities
Development Authority (CSCDA) and authorize the Mayor to sign the Agreement
2. Open TEFRA Hearing and receive Staff presentation
3. Take testimony from the Applicant and the Public
4. Question Staff, Applicant and the Public
5. Close the TEFRA Hearing and deliberate
6. Adopt TEFRA resolution approving the issuance of the Bonds.
7. Adopt Resolution approving Agreement with CSG Advisors to serve as Bond Financial Advisor
for the City of Dublin and authorize the City Manager to sign the Agreement on behalf of the City.
633505-2 3 ~' ~:'
RESOLUTION
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING, AUTHORIZING AND DIRECTING EXECUTION OF AN AMENDED AND
RESTATED JOINT EXERCISE OF POWERS AGREEMENT RELATING TO THE
CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY
WHEREAS, the City of Dublin, California (the "City") has expressed an interest in participating
in the economic development financing programs (the "Programs") in conjunction with the parties to that
certain Amended and Restated Joint Exercise of Powers Agreement Relating to the Caiifomia Statewide
Communities Development Authority, dated as of June 1, 1988 (the "Agreement"); and
WHEREAS, there is now before the City Council the form of the Agreement; and
WHEREAS, the City proposes to participate in the Programs and desires that certain projects to be
located within the City be financed pursuant to the Programs and it is in the public interest and for the
public benefit that the City do so; and
WHEREAS, the Agreement has been filed with the City, and the members of the City Council of
the City, with the assistance of its Staff, have reviewed said document;(Exhibit A)
NOW, THEREFORE, be it resolved by the City Council of the City of Dublin as follows:
Section 1. The Agreement is hereby approved and the Mayor is hereby authorized and
directed to execute said document, with such changes, insertions and omissions as may be approved by
said Mayor, mad the City Clerk or such Clerk's designee is hereby authorized and directed to affix the
City's seal to said document and to attest thereto.
Section 2. The City Council, with the signing of The Agreement, approves membership by the
City of Dublin in the California State Community Development Authority.
Se,ction 3. The Mayor, the City Clerk and all other proper officers and officials of the City are
hereby authorized and directed to execute such other agreements, documents and certificates, and to
perform such other acts and deeds, as may be necessary or convenient to effect the purposes of the
Resolution and the transactions herein authorized.
Section 4. The City Clerk of the City of Dublin shall forward a certified copy oft his
Resolution and an originally executed Agreement to:
Angie Sessions
Orrick, Herrington & Sutcliffe, LLP
400 Capital Mall, Suite 3000
Sacramento, California 94814.
Section 5. This resolution shall take effect immediately upon its passage..
ATTACHMENT
ADOPTED by the City Council of the City of Dublin at a regular meeting of said Council held on
August 5, 2003, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Janet Lockhart, Mayor
ATTEST:
Kay Keck, City Clerk
K2/G/8-5-03/reso-csda.doc (.Item 6.4 - 1)
AMENDED AND RESTATED
JOINT EXERCISE OF POWERS AGREEMENT
RELATING TO THE CALIFORNIA STATEWIDE COMMUNITIES
DEVELOPMENT AUTHORITY
THIS AGREEMENT, dated as of June 1, 1988, by and
among the parties executing this Agreement (all such parties,
except those which have withdrawn in accordance with Section
13 hereof, being herein referred to as the "Program
Participants")'
WlTNESSETH
WHEREAS, pursuant to Title 1, Division 7, Chapter 5
of the Government Code of the State of California (the "Joint
Exercise of Powers Act"), two or more public agencies may by
agreement jointly exercise any power common to the
contracting parties; and
WHEREAS, each of the Program Participants is a
"public agency" as that term is defined in Section 6500 of the
Government Code of th.e State of California, and
WHEREAS, each of the Program Participants is
empowered to promote economic development, including,
without limitation, the promotion of opportunities for the
creation or retention of employment, the stimulation of
economic activity, and the ncrease of the tax base, within its
boundaries; and
WHEREAS, a pub ic entity established pursuant to
the Joint Exercise of Powers Act is empowered to issue
industrial development bonds pursuant to the California
Industrial Development Financing Act (Title 10 (commencing
with Section 91500 of the Government Code of the State of
California)) (the "Act") and to otherwise undertake financing
programs under the Joint Exercise of Powers Act or other
applicable provisions of law to promote economic development
through the issuance of bonds, notes, or other evidences of
indebtedness, or certificates of participation in leases or
other agreements (all such instruments being herein
collectively referred to as "Bonds"); and
WHEREAS, in order to promote economic
development within the State of California, the County
Supervisors Association of California ("CSAC"), together with
the California Manufacturers Association, has established the
Bonds for Industry program (the "Program").
WHEREAS, in furtherance of the Program, certain
California counties (collectively, the "Initial Participants")
have entered into that certain Joint Exercise of Powers
Agreement dated as of November 18, 1987 (the "Initial
Agreement"), pursuant to which the California Counties
Industrial Development Authority has been established as a
separate entity under the Joint Exercise of Powers Act for the
purposes and with the powers specified in the Initial
Agreement; and
WHEREAS, the League of California Cities ("LCC")
has determined to join as a sponsor of the Program and to
actively participate in the administration of the Authority; and
WHEREAS, the Initial Participants have determined
to specifically authorize the Authority to issue Bonds pursuant
to Article 2 of the Joint Exercise of Powers Act ("Article 2")
and Article 4 of the Joint Exercise of Powers Act ("Article 4"),
as well as may be authorized by the Act or other applicable
law; and
WH£R£A$, the Initial Participants desire to rename
the California Counties Industrial Development Authority to
better reflect the additional sponsorship of the Program; and
WHEREAS, each of the Initial Participants has
determined that it is in the public interest of the citizens
within its boundaries, and to the benefit of such Initial
Participant and the area and persons served by such Initial
Participant, to amend and restate in its entirety the Initial
Agreement in order to implement the provisions set forth
above; and
WHEREAS, it is the desire of the Program
Participants to use a public entity established pursuant to the
Joint Exercise of Powers Act to undertake projects within their
respective jurisdictions that may be financed with Bonds
issued pursuant to the Act, Article 2, Article 4, or other
applicable provisions of law; and
WHEREAS, the projects undertaken will result in
significant public benefits, including those public benefits set
forth in Section 91502.1 of the Act, an increased level of
economic activity, or an increased tax base, and will therefore
serve and be of benefit to the inhabitants of the jurisdictions
of the Program Participants;
NOW, THEREFOR£, the Program Participants, for
and in consideration of the mutual promises and agreements
herein contained, do agree to restate and amend the Initial
Agreement in its entirety to provide as follows:
Section 1. Purpose.
This Agreement is made pursuant to the provisions
of the Joint Exercise of Powers Act, relating to the joint
exercise of powers common to public agencies, in this case
being the Program Participants. The Program Participants
each possess the powers referred to in the recitals hereof.
The purpose of this Agreement is to establish an agency for,
and with the purpose of, issuing Bonds to finance projects
within the territorial limits of the Program Participants
pursuant to the Act, Article 2, Article 4, or other appliable
provisions of law; provided, however that nothing in this
Agreement shall be construed as a limitation on the rights of
the Program Participants to pursue economic development
outside of this Agreement, including the rights to issue Bonds
through industrial development authorities under the Act, or as
otherwise permitted by law.
Within the various jurisdictions of the Program
Participants such purpose will be accomplished and said
powers exercised in the manner hereinafter set forth.
Section 2. Term.
This Agreement shall become effective as of the
date hereof and shall continue in full force and effect for a
period of forty (40) years from the date hereof, or until such
time as it is terminated in writing by all the Program
Participants; provided, however, that this Agreement shall not
terminate or be terminated until the date on which all Bonds or
other indebtedness issued or caused to be issued by the
Authority shall have been retired, or full provision shall have
been made for their retirement, including interest until their
retirement date.
Section 3. Authority.
A. CREATION AND POWERS OF AUTHORITY.
(1) Pursuant to the Joint Exercise of Powers Act,
there is hereby created a public entity to be known as the
"California Statewide Communities Development Authority" (the
"Authority"), and said Authority shall be a public entity
separate and apart from the Program Participants. Its debts,
liabilities and obligations do not constitute debts, liabil ties
or obligations of any party to this Agreement.
B. COMMISSION.
The Authority shall be administered by a Commiss on
(the "Commission") which shall consist of seven members, each
serving in his or her individual capacity as a member of the
Commission. The Commission shall be the administering
agency of this Agreement, and, as such, shall be vested with
the powers set forth herein, and shall execute and administer
this Agreement in accordance with the purposes and functions
provided herein.
Four members of the Commission shall be appointed
by the governing body of CSAC and three members of the
Commission shall be appointed by the governing body of LCC.
Initial members of the Commission shall serve a term ending
June 1, 1991. Successors to such members shall be selected
in the manner in which the respective initial member was
selected and shall serve a term of three years. Any
appointment to fill an unexpired term, however, shall be for
such unexpired term. The term of office specified above shall
be applicable unless the term of office of the respective
member is terminated as hereinafter provided, and provided
that the term of any member shall not expire until a successor
thereto has been appointed as provided herein.
Each of CSAC and LCC may appoint an alternate
member of the Commission for each member of the Commission
which it appoints. Such alternate member may act as a
member of the Commission in place of and during the absence
or disability of such regularly appointed member. All
references in this Agreement to any member of the Commission
shall be deemed to refer to and include the applicable
alternate member when so acting in place of a regularly
appointed member.
Each member or alternate member of the
Commission may be removed and replaced at any time by the
governing body by which such member was appointed. Any
individual, including any member of the governing body or
staff of CSAC or LCC, shall be eligible to serve as a member
or alternate member of the Commission.
Members and alternate members of the Commission
shall not receive any compensation for serving as such but
shall be entitled to reimbursement for any expenses actually
incurred in connection with serving as a member or alternate
member, if the Commission shall determine that such expenses
shall be reimbursed and there are unencumbered funds
available for such purpose.
C. OFFICERS; DUTIES; OFFICIAL BONDS.
The Commission shall elect a Chair, a Vice-Chair,
and a Secretary of the Authority from among its members to
serve for such term as shall be determined by the Commission.
The Commission shall appoint one or more of its officers or
employees to serve as treasurer, auditor, and controller of the
Authority (the "Treasurer") pursuant to Section 6505.6 of the
Joint Exercise of Powers Act to serve for such term as shall
be determined by the Commission.
Subject to the applicable provisions of any
resolution, indenture or other instrument or proceeding
authorizing or securing Bonds (each such resolution,
indenture, instrument and proceeding being herein referred to
as an "Indenture") providing for a trustee or other fiscal
agent, the Treasurer is designated as the depositary of the
Authority to have custody of all money of the Authority, from
whatever source derived.
The Treasurer of the Authority shall have the
powers, duties and responsibilities specified in Section 6505.5
of the Jo nt Exercise of Powers Act.
The Treasurer of the Authority is designated as the
public off cer or person who has charge of, handles, or has
access to any property of the Authority, and such officer shall
file an official bond with the Secretary of the Authority in the
amount specified by resolution of the Commission but in no
event less than $1,000. If and to the extent permitted by law,
any such officer may satisfy this requirement by filing an
official bond in at least said amount obtained in connection
with another public office.
The Commission shall have the power to appoint
such other officers and employees as it may deem necessary
and to retain independent counsel, consultants and
accountants.
The Commission shall have the power, by resolution,
to the extent permitted by the Joint Exercise of Powers Act or
any other applicable law, to delegate any of its functions to
one or more of the members of the Commission or officers or
agents of the Authority and to cause any of said members,
officers or agents to take any actions and execute .any
documents or instruments for and in the name and on behalf of
the Commission or the Authority.
D. MEETINGS OF THE COMMISSION.
(1) Reqular Meetin.qs.
The Commission shall provide for its regular
meetings; provided, however, it shall hold at least one regular
meeting each year. The date, hour and place of the holding of
the regular meetings shall be fixed by resolution of the
Commission and a copy of such resolution shall be filed with
each party hereto.
(2) Special Meetings.
Special meetings of the Commission may be called
in accordance with the provisions of Section 54956 of the
Government Code of the State of California.
(3) Ralph M. Brown Act.
All meetings of the Commission, including, without
limitation, regular, adjourned regular, special, and adjourned
special meetings shall be called, noticed, held and conducted
in accordance with the provisions of the Ralph M. Brown Act
(commencing with Section 54950 of the Government Code of
the State of California).
(4) Minutes .
The Secretary of the Authority shall cause to be
kept minutes of the regular, adjourned regular, special, and
adjourned special meetings of the Commission and shall, as
soon as possible after each meeting, cause a copy of the
minutes to be forwarded to each member of the Commission
(5) Quorum.
A majority of the members of the Commission wh ch
includes at least one member appointed by the governing body
of each of CSAC and LCC shall constitute a quorum for the
transaction of business. No action may be taken by the
Commission except upon the affirmative vote of a majority of
the members of the Commission which includes at least one
member appointed by the governing body of each of CSAC and
LCC, except that less than a quorum may adjourn a meeting to
another time and place.
E. RULES AND REGULATIONS.
The Authority may adopt, from time to time, by
resolution of the Commission such rules and regulations for
the conduct of its meetings and affairs as may be required.
Section 4. Powers.
The Authority shall have any and all powers
relating to economic development authorized by law to each
of the parties hereto and separately to the public entity
herein created, including, without limitation, the promotion of
opportunities for the creation and retention of employment,
the stimulation of economic activity, and the increase of the
tax base, within the jurisdictions of such parties. Such
powers shall include the common powers specified n this
Agreement and may be exercised in the manner and according
to the method provided in this Agreement. All such powers
common to the parties are specified as powers of the
Authority. The Authority is hereby authorized to do all acts
necessary for the exercise of such powers, including, but not
limited to, any or all of the following: to make and enter into
contracts; to employ agents and employees; to acquire,
construct, provide for maintenance and operation of, or
maintain and operate, any buildings, works or improvements;
to acquire, hold or dispose of property wherever located; to
incur debts, liabilities or obligations; to receive gifts,
contributions and donations of property, funds, services and
other forms of assistance from persons, firms, corporations
and any governmental entity; to sue and be sued in its own
name; and generally to do any and all things necessary or
convenient to the promotion of economic development,
including without limitation the promotion of opportunities for
the creation or retention of employment, the stimulation of
economic activity, and the increase of the tax base, all as
herein contemplated. Without limiting the generality of the
foregoing, the Authority may issue or cause to be issued
bonded and other indebtedness, and pledge any property or
revenues as security to the extent permitted under the Joint
Exercise of Powers Act, including Article 2 and Article 4, the
Act or any other applicable provision of law.
The manner in which the Authority shall exercise its
powers and perform its duties is and shall be subject to the
restrictions upon the manner in which a California county
could exercise such powers and perform such duties until a
California general law city shall become a Program
Participant, at which time it shall be subject to the
restrictions upon the manner in which a California general law
city could exercise such powers and perform such duties. The
manner in which the Authority shall exercise its powers and
perform its duties shall not be subject to any restrictions
applicable to the manner in which any other public agency
could exercise such powers or perform such duties, whether
such agency is a party to this Agreement or not.
Section 5. Fiscal Year.
For the purposes of this Agreement, the term "Fiscal
Year" shall mean the fiscal year as established from time to
time by the Authority, being, at the date of this Agreement,
the period from July 1 to and including the following June $0,
except for the first Fiscal Year which shall be the period from
the date of this Agreement to June 30, 1988.
Section 6. Disposition of Assets.
At the end of the term hereof or upon the earlier
termination of this Agreement as set forth in Section 2 hereof,
after payment of all expenses and liabilities of the Authority,
all property of the Authority both real and personal shall
automatically vest in the Program Participants and shall
thereafter remain the sole property of the Program
Participants; provided, however, that any surplus money on
hand shall be returned in proportion to the contributions made
by the Program Participants.
Section 7. Bonds.
The Authority shall issue Bonds for the purpose of
exercising its powers and raising the funds necessary to carry
out its purposes under this Agreement. Said Bonds may at
the discretion of Authority, be issued in series.
The services of bond counsel, financing consu tants
and other consultants and advisors working on the projects
and/or their financing shall be used by the Authority. The
fees and expenses of such counsel, consultants, advisors, and
the expenses of CSAC, LCC, and the Commission shall be paid
from the proceeds of the Bonds or any other unencumbered
funds of the Authority available for such purpose.
Section 9. Local Approval.
A copy of the application for financing of a project
shall be filed by the Authority with the Program Participant in
whose jurisdiction the project is to be located. The Authority
shall not issue Bonds with respect to any project unless the
governing body of the Program Participant in whose
jurisdiction the project is to be located, or its duly authorized
designee, shall approve, conditionally or unconditionally, the
project, including the issuance of Bonds therefor. Action to
approve or disapprove a project shall be taken within 45 days
of the filing with the Program Participant. Certification of
approval or disapproval shall be made by the clerk of the
governing body of the Program Participant, or by such other
officer as may be designated by the applicable Program
Participant, to the Authority.
Section 8. Bonds Only Limited and Special
Obliqations of Authority.
The Bonds, together with the interest and premium,
if any, thereon, shall not be deemed to constitute a debt of
any Program Participant, CSAC, or LCC or pledge of the faith
and credit of the Program Participants, CSAC, LCC, or the
Authority. The Bonds shall be only special obligations of the
Authority, and the Authority shall under no circumstances be
obligated to pay the Bonds or the respective project costs
except from revenues and other funds pledged therefor.
Neither the Program Participants, CSAC, LCC, nor the
Authority shall be obligated to pay the principal of, premium,
if any, or interest on the Bonds, or other costs incidental
thereto, except from the revenues and funds pledged therefor,
and neither the faith and credit nor the taxing power of the
Program Participants nor the faith and credit of CSAC, LCC, or
the Authority shall be pledged to the payment of the principal
of, premium, if any, or interest on the Bonds nor shall the
Program Participants, CSAC, LCC, or the Authority in any
manner be obligated to make any appropriation for such
payment.
No covenant or agreement contained in any Bond or
Indenture shall be deemed to be a covenant or agreement of
any member of the Commission, or any officer, agent or
employee of the Authority in his individual capacity and
neither the Commission of the Authority nor any officer thereof
executing the Bonds shall be liable personally on any Bond or
be subject to any personal liability or accountability by reason
of the issuance of any Bonds.
Section 10. Accounts and Reports.
All funds of the Authority shall be strictly accounted
for. The Authority shall establish and maintain such funds and
accounts as may be required by good accounting practice and
by any provision of any Indenture (to the extent such duties
are not assigned to a trustee of Bonds). The books and
records of the Authority shall be open to inspection at all
reasonable times by each Program Participant.
The Treasurer of the Authority shall cause an
independent audit to be made of the books of accounts and
financial records of the Agency by a certified public
accountant or public accountant in compliance with the
provisions of Section 6505 of the Joint Exercise of Powers
Act. In each case the minimum requirements of the audit shall
be those prescribed by the State Controller for special
districts under Section 26909 of the Government Code of the
State of California and shall conform to generally accepted
auditing standards. When such an audit of accounts and
records is made by a certified public accountant or public
accountant, a report thereof shall be filed as public records
with each Program Participant and also with the county auditor
of each county in which a Program Participant is located.
Such report shall be filed within 12 months of the end of the
Fiscal Year or Years under examination.
Any costs of the audit, including contracts with, or
employment of, certified public accountants or public
accountants in making an audit pursuant to this Section, shall
be borne by the Authority and shall be a charge against any
unencumbered funds of the Authority available for that
purpose.
In any Fiscal Year the Commission may, by
resolution adopted by unanimous vote, replace the annual
special audit with an audit covering a two-year period.
The Treasurer of the Authority, within 120 days
after the close of each Fiscal Year, shall give a complete
written report of all financial activities for such Fiscal Year to
each of the Program Participants to the extent such activities
are not covered by the reports of the trustees for the Bonds.
The trustee appointed under each Indenture shall establish
suitable funds, furnish financial reports and provide suitable
accounting procedures to carry out the provisions of said
Indenture. Said trustee may be given such duties in said
Indenture as may be desirable to carry out this Agreement.
Section 11. Funds.
Subject to the applicable provisions of each
Indenture, which may provide for a trustee to receive, have
custody of and disburse Authority funds, the Treasurer of the
Authority shall receive', have the custody of and disburse
Authority funds pursuant to the accounting procedures
developed under Section 10 hereof, and shall make the
disbursements required by this Agreement or otherwise
necessary to carry out any of the provisions or purposes of
this Agreement.
Section 12. Notices.
Notices and other communications hereunder to the
Program Participants shall be sufficient if delivered to the
clerk of the governing body of each Program Participant.
Section 13. Withdrawal and Addition of Parties.
A Program Participant may withdraw from this
Agreement upon written notice to the Commission; provided,
however, that no such withdrawal shall result in the
dissolution of the Authority so long as any Bonds remain
outstanding under an Indenture. Any such withdrawal shall be
effective only upon receipt of the notice of withdrawal by the
Commission which shall acknowledge receipt of such notice of
withdrawal in writing and shall file such notice as an
amendment to this Agreement effective upon such filing.
10
Qualifying public agencies may be added as parties
to this Agreement and become Program Participants upon: (i)
the filing by such public agency of an executed counterpart of
this Agreement, together with a certified copy of the
resolution of the governing body of such public agency
approving this Agreement and the execution and delivery
hereof; and (ii) adoption of a resolution of the Commission
approving the addition of such public agency as a Program
Participant. Upon satisfaction of such conditions, the
Commission shall file such executed counterpart of this
Agreement as an amendment hereto, effective upon such filing.
Section 14. Indemnification.
To the full extent permitted by law, the Commission
may authorize indemnification by the Authority of any person
who is or was a member or alternate member of the
Commission, or an officer, employee or other agent of the
Authority, and who was or is a party or is threatened to be
made a party to a proceeding by reason of the fact that such
person is or was such a member or alternate member of the
Commission, or an officer, employee or other agent of the
Authority, against expenses, judgments, fines, settlements and
other amounts actually and reasonably incurred in connection
with such proceeding, if such person acted in good faith and
in a manner such person reasonably believed to be in the best
interests of the Authority and, in the case of a criminal
proceeding, had no reasonable cause to believe the conduct of
such person was unlawful and, in the case of an action by or
in the right of the Authority, acted with such care, including
reasonable inquiry, as an ordinarily prudent person in a like
position would use under similar circumstances.
Section 15. Contributions and Advances.
Contributions or advances of public funds and of the
use of personnel, equipment or property may be made to the
Authority by the parties hereto for any of the purposes of this
Agreement. Payment of public funds may be made to defray
the cost of any such contribution. Any such advance may be
made subject to repayment, and in such case shall be repa d,
in the manner agreed upon by the Authority and the party
making such advance at the time of such advance.
Section 16. Immunities.
All of the privileges and immunities from
liabilities, exemptions from laws, ordinances and rules, al
pension, relief, disability, workers' compensation, and other
benefits which apply to the activity of officers, agents or
employees of Program Participants when performing their
11
respective functions within the territorial limits of their
respective public agencies, shall apply to them to the same
degree and extent while engaged as members of the
Commission or otherwise as an officer, agent or other
representative of the Authority or while engaged in the
performance of any of their functions or duties
extraterritorially under the provisions of this Agreement.
Section 17. Amendments.
Except as provided in Section 13 above, this
Agreement shall not be amended, modified, or altered except
by a written instrument duly executed by each of the Program
Participants.
Section 18. Effectiveness.
This Agreement shall become effective and be in full
force and effect and a legal, valid and binding obligation of
each of the Program Participants at 9:00 a.m., California time,
on the date that the Commission shall have received from each
of the Initial Participants an executed counterpart of this
Agreement, together with a certified copy of a resolution of
the governing body of each such Initial Participant approving
this Agreement and the execution and delivery hereof.
Section 19. Partial Invalidity.
If anyone or more of the terms, provisions,
promises, covenants or conditions of this Agreement shall to
any extent be adjudged invalid, unenforceable, void or
voidable for any reason whatsoever by a court of competent
jurisdiction, each and all of the remaining terms, provisions,
promises, covenants and conditions of this Agreement shall
not be affected thereby, and shall be valid and enforceable to
the fullest extent permitted by law.
Section 20. Successors.
This Agreement shall be binding upon and shall
inure to the benefit of the successors of the parties h'ereto.
Except to the extent expressly provided herein, no party may
assign any right or obligation hereunder without the consent of
the other parties.
Section 21. Miscellaneous.
This Agreement may be executed in several
counterparts, each of which shall be an original and all of
which shall constitute but one and the same instrument.
12
The section headings herein are for convenience
only and are not to be construed as modifying or governing the
language in the section referred to.
Wherever in this Agreement any consent or approval
is required, the same shall not be unreasonably withheld.
This Agreement is made in the State of California,
under the Constitution and laws of such state and is to be so
construed.
This Agreement is the complete and ex.clusive
statement of the agreement among the parties hereto, which
supercedes and merges all prior proposals, understandings,
and other agreements, including, without limitation, the Initia
Agreemen't, whether oral, written, or implied in conduct,
between and among the parties relating to the subject matter
of this Agreement.
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be executed and attested by their
proper officers thereunto duly authorized, and their official
seals to be hereto affixed, as of the day and year first above
written.
Program Participant:
CITY OF DUBLIN
[SEAL]
By
Name: Janet Lockhart
Title:
Mayor
ATTEST:
By
Name: Kay Keck
Title: City Clerk
Approved as to Form:
City Attorney's Office
13
RESOLUTION - 03
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING THE ISSUANCE OF MULT1FAMILY HOUSING REVENUE BONDS
FOR AFFORDABLE APARTMENTS BY THE
CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY
WHEREAS, the California Statewide Communities Development Authority (the "Authority")
is authorized pursuant to the provisions of California Government Code Section 6500 et seq. and the terms of
an Amended and Restated Joint Exercise of Powers Agreement, dated as of June 1, 1988 (the "Agreement"),
among certain local agencies throughout the State of California, including the City of Dublin (the "City"), to
issue revenue bonds in accordance with Chapter 7 of Part 5 of Division 31 of the California Health and
Safety Code for the purpose of financing multifamily rental housing projects; and
WHEREAS, Fairway Family Community, L.P., a California limited partnership, has
requested that the Authority issue multifamily housing revenue bonds in an aggregate principal amount not to
exceed $30,000,000 (the "Multifamily Bonds") for the purpose of providing financing for the construction
and development of a 304-unit multifamily rental housing project, located at the Southeast comer of
Central Parkway and Keegan St., Dublin, California, and generally known as Fairway Family Apartments;
and
WHEREAS, Dublin Ranch Senior Apartments, L.P., a California limited partnership, has
requested that the Authority issue mulfifamily housing revenue bonds in an aggregate principal amount not to
exceed $30,000,000 (the "Senior Housing Bonds" and together with the Multifamily Bonds, collectively the
"Bonds") for the purpose of providing financing for the construction and development of a 322-unit senior
multifamily rental housing project, located at the Southeast comer of Central Parkway and Keegan St.,
Dublin, California, and generally known as Dublin Ranch Senior Apartments (known with Fairway
Family Apartments as the "Projects"); and
WHEREAS, the Bonds or a portion thereof will be "private activity bonds" for purposes of
the Internal Revenue Code of 1986 (the "Code"); and
WHEREAS, pursuant to Section 147(0 of the Code, prior to their issuance, private activity
bonds are required to be approved by the "applicable elected representative" of the governmental units on
whose behalf such bonds are expected to be issued and by a governmental unit having jurisdiction over the
entire area in which any facility financed by such bonds is to be located, after a public hearing held following
reasonable public notice; and
WHEREAS, the members of this City Council (this "Council") are the applicable elected
representatives of the City; and
WHEREAS, there has been published, at least. 14 days prior to the date hereof, in a newspaper
of general circulation within the City, a notice that a public hearing regarding the Bonds would be held on the
date hereof; and
ATTACHMENT 2
WHEREAS, such public hearing was conducted on said date by the City Council, at which
time an oppommity was prox4ded to interested parties to present arguments both for and against the issuance
of the Bonds; and
WHEREAS, it is intended that this resolution shall constitute the approval of the issuance of
the Bonds required by Section 147(f) of the Code and Section 9 of the Agreement;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
DUBLIN AS FOLLOWS:
Section 1. The above recitals are tree and correct.
Section 2. The Council hereby approves the issuance of the Bonds by the Authority. It is
the purpose and intent of the Council that this resolution constitute approval of the Bonds for the purposes of
(a) Section 147(f) of the Code and (b) Section 9 of the Agreement.
Section 3. The officers of the City are hereby authorized and directed, jointly and
severally, to do an~ and all things and to execute and deliver any and all documents that they deem necessary
or advisable in order to carry out, give effect to and comply with the terms and intent of this resolution and
the fmaneh~g approved hereby.
Section 4. The City Clerk of the City shall forward a certified copy of this Resolution
and a copy of the affidavit of publication of the hearing notice to:
Justin Cooper, Esq.
Orrick, Herfington & Sutcliffe LLP
Old Federal Reserve Bank Building
400 Sansome Street
San Francisco, California 94111
Section 5. This resolution shall take effect immediately upon its passage.
ADOPTED by the City Council of the City of Dublin at a regular meeting of said Council held on the
5th day of August, 2003, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
City Clerk
K2/G/g-5-03/reso-TEFRAbonds.doc (Item 6.4 - 2)
DOCSSFt :693272.$ 2
RESOLUTION NO. - 03
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING AN AGREEMENT WITH CSG ADVISORS, INCORPORATED
TO SERVE AS BOND FINANCIAL ADVISOR FOR THE CITY OF DUBLIN IN THE
ISSUANCE OF MULTiFAMILY HOUSING BONDS FOR FAIRWAY RANCH
WHEREAS, the City of Dublin has approved a project, called Fairway Ranch, that includes a
total of 587 affordable units; and
WHEREAS, the developer intends to seek tax-exempt bond allocations for two phases of Fairway
Ranch, the Dublin Ranch Senior Homing and Fairway Family Apartments; and
WHEREAS, the City of Dublin will be joining California Statewide Communities Development
Authority which will be the issuer of the bonds if the developer receives an allocation; and
WHEREAS, Staff has determined it would be advantageous to have representation by a financial
advisor throughout the bond issuance process; and
WHEREAS, CSG Advisors, Incorporated ('~CSG") has demonstrated adequate ability to provide
bond financial advice; and
WHEREAS, pursuant to the proposed consulting agreement ( Exhibit A) which was presented to
the City Council at a public hearing held on the date hereof ("Agreement"), CSG would be paid solely
from the proceeds of the bonds; and
WHEREAS, a Obligation to Compensate Letter has been received (Exhibit B) from the Attorney
for Dublin Ranch Senior Apartments, LP and Fairway Family Community, LP.
NOW, THEREFORE, BE IT RESOLVED that the City Council directs Staffto execute the
agreement substantially in the form attached hereto with the above mentioned firm.
PASSED, APPROVED, AND ADOPTED this 5th day of August 2003.
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
City Clerk
K2/G/8-5-03/reso-CSG-bondS.doc (Item 6.4 - 3)
ATTACHMENT 3
CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF DUBLIN AND
CSG ADVISORS, INCORPORATED
THIS AGREEMENT for consulting services is made by and between the City of Dublin
("City") and CSG Advisor, Incorporated ("Consultant") as of August 5, 2003.
Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement,
Consultant shall provide to City the services described in the Scope of Work attached as Exhibit
A at the time and place and in the manner specified therein. In the event of a conflict in or
inconsistency between the terms of this Agreement and Exhibit A, the Agreement shall prevail.
1.1 Term of Services. The term of this Agreement shall begin on the date first noted
above and shall continue indefinitely. Consultant shall complete the work
assigned as described in Exhibit A, unless the term of the Agreement is otherwise
terminated, as provided for in Section 8. The time provided to Consultant to
complete the services required by this Agreement shall not affect the City's right
to terminate the Agreement, as provided for in Section 8.
1.2 Standard of Performance. Consultant shall perform all services required
pursuant to this Agreement in the manner and according to the standards observed
by a competent practitioner of the profession in which Consultant is engaged in
the geographical area in which Consultant practices its profession. Consultant
shall prepare all work products required by this Agreement in a substantial, first-
class manner and shall conform to the standards of quality normally observed by a
person practicing in Consultant's profession.
1.3 Assignment of Personnel. Consultant shall assign only competent personnel to
perform services pursuant to this Agreement. In the event that City, in its sole
discretion, at any time during the term of this Agreement, desires the
reassignment of any such persons, Consultant shall, immediately upon receiving
notice from City of such desire of City, reassign such person or persons.
1.4 Time. Consultant shall devote such time to the performance of services pursuant
to this Agreement as may be reasonably necessary to meet the standard of
performance provided in Section 1.2 above and to satisfy Consultant's obligations
hereunder.
Section 2. COMPENSATION. The compensation to be received by Consultant for the
services to be rendered pursuant to this agreement shall be as set forth in Exhibit B.
2.1 Payment of Taxes. Consultant is solely responsible for the payment of
employment taxes incurred under this Agreement and any similar federal or state
taxes.
EXHIBIT A
2.2 Payment upon Termination. In the event that the City terminates this
Agreement pursuant to Section 8, Consultant shall be entitled to receive
compensation for all outstanding costs and reimbursable expenses incurred for
work satisfactorily completed as of the date of written notice of termination;
provided however, such compensation shall be payable solely from Bond
proceeds in accordance with Section 2.4, and in lieu of the rates of compensation
described in Exhibit B of this agreement, such compensation shall be payable at
the hourly rates specified below, but in no event in an aggregate amount
exceeding the amounts specified in Exhibit B. Consultant shall maintain adequate
logs and timesheets in order to verify costs incurred to that date.
Gene Slater $235 per hour
Christine Gouig $200 per hour
Senior Associates $180 per hour
2.3 Authorization to Perform Services. The Consultant is not authorized to perform
any services or incur any costs whatsoever under the terms of this Agreement
until receipt of authorization from the Contract Administrator.
2.4 Compensation from Bond Proceeds. The compensation to be paid to
Consultant for the services rendered pursuant to this agreement shall be as set
forth in Exhibit B. Consultant acknowledges that the source of payment for such
services shall be the proceeds of the bonds identified in Exhibit A ("the Bonds"),
and that notwithstanding anything to the contrary contained herein, the City has
no obligation to make payment to Consultant for the services rendered or
Consultant's expenses incurred pursuant to this agreement under any
circumstance, including without limitation the failure of the Bonds to be issued.
Consultant shall be solely responsible for making any arrangement necessary to
obtain approval for payment of compensation from the proceeds. City has
provided written notice of this agreement to the California Statewide
Communities Development Authority and Developer.
The parties acknowledge and agree that the scope of services to be performed
under this Agreement relates specifically to the issuance of the Bonds, and that
Consultant shall not be separately compensated for such services pursuant to that
certain Consulting Services Agreement by and between City and Consultant dated
as of March 18, 2003.
Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Consultant shall,
at its sole cost and expense, provide all facilities and equipment that may be necessary to
perform the services required by this Agreement. City shall make available to Consultant only
the facilities and equipment listed in this section, and only under the terms and conditions set
forth herein.
City shall furnish physical facilities such as desks, filing cabinets, and conference space, as may
be reasonably necessary for Consultant's use while consulting with City employees and
Consulting Services Agreement between August 5, 2003
City of Dublin and CSG Advisors, Inc Page 2 of 13
reviewing records and the information in possession of the City. The location, quantity, and time
of furnishing those facilities shall be in the sole discretion of City. In no event shall City be
obligated to furnish any facility that may involve incurring any direct expense, including but not
limited to computer, long-distance telephone or other communication charges, vehicles, and
reproduction facilities.
Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this
Agreement, Consultant, at its own cost and expense, shall procure "occurrence coverage"
insurance against claims for injuries to persons or damages to property that may arise from or in
connection with the performance of the work hereunder by the Consultant and its agents,
representatives, employees, and subcontractors. Consultant shall provide proof satisfactory to
City of such insurance that meets the requirements of this section and under forms of insurance
satisfactory in all respects to the City. Consultant shall maintain the insurance policies required
by this section throughout the term of this Agreement. The cost of such insurance shall be
included in the Consultant's bid. Consultant shall not allow any subcontractor to commence
work on any subcontract until Consultant has obtained all insurance required herein for the
subcontractor(s) and provided evidence thereof to City. Verification of the required insurance
shall be submitted and made part of this Agreement prior to execution.
4.1 Workers' Compensation. Consultant shall, at its sole cost and expense,
maintain Statutory Workers' Compensation Insurance and Employer's Liability
Insurance for any and all persons employed directly or indirectly by Consultant.
The Statutory Workers' Compensation Insurance and Employer's Liability
Insurance shall be provided with limits of not less than ONE HUNDRED
THOUSAND DOLLARS ($100,000.00) per accident. In the alternative,
Consultant may rely on a self-insurance program to meet those requirements, but
only if the program of self-insurance complies fully with the provisions of the
California Labor Code. Determination of whether a self-insurance program meets
the standards of the Labor Code shall be solely in the discretion of the Contract
Administrator. The insurer, if insurance is provided, or the Consultant, if a
program of self-insurance is provided, shall waive all rights of subrogation against
the City and its officers, officials, employees, and volunteers for loss arising from
work performed under this Agreement.
An endorsement shall state that coverage shall not be canceled except after thirty
(30) days' prior written notice by certified mail, return receipt requested, has been
given to the City. Consultant shall notify City within 14 days of notification from
Consultant's insurer if such coverage is suspended, voided or reduced in coverage
or in limits.
4.2 Commercial General and Automobile Liability Insurance.
4.2.1 General requirements. Consultant, at its own cost and expense, shall
maintain commercial general and automobile liability insurance for the
term of this Agreement in an amount not less than ONE MILLION
DOLLARS ($1,000,000.00) per occurrence, combined single limit
Consulting Services Agreement between August 5, 2003
City of Dublin and CSG Advisors, Inc Page 3 of 13
coverage for risks associated with the work contemplated by this
Agreement. If a Commercial General Liability Insurance or an
Automobile Liability form or other form with a general aggregate limit is
used, either the general aggregate limit shall apply separately to the work
to be performed under this Agreement or the general aggregate limit shall
be at least twice the required occurrence limit. Such coverage shall
include but shall not be limited to, protection against claims arising from
bodily and personal injury, including death resulting therefrom, and
damage to property resulting from activities contemplated under this
Agreement, including the use of owned and non-owned automobiles.
4.2.2 Minimum scope of coverage. Commercial general coverage shall be at
least as broad as Insurance Services Office Commercial General Liability
occurrence form CG 0001 (ed. 11/88) or Insurance Services Office form
number GL 0002 (ed. 1/73) covering comprehensive General Liability and
Insurance Services Office form number GL 0404 covering Broad Form
Comprehensive General Liability. Automobile coverage shall be at least
as broad as Insurance Services Office Automobile Liability form CA 0001
(ed. 12/90) Code 8 and 9 ("any auto"). No endorsement shall be attached
limiting the coverage.
4.2.3 Additional requirements. Each of the following shall be included in the
insurance coverage or added as an endorsement to the policy:
a. City and its officers, employees, agents, and volunteers shall be
covered as additional insureds with respect to each of the
following: liability arising out of activities performed by or on
behalf of Consultant, including the insured's general supervision of
Consultant; products and completed operations of Consultant;
premises owned, occupied, or used by Consultant; and automobiles
owned, leased, or used by the Consultant. The coverage shall
contain no special limitations on the scope of protection afforded
to City or its officers, employees, agents, or volunteers.
b. The insurance shall cover on an occurrence or an accident basis,
and not on a claims-made basis.
c. An endorsement must state that coverage is primary insurance with
respect to the City and its officers, officials, employees and
volunteers, and that no insurance or self-insurance maintained by
the City shall be called upon to contribute to a loss under the
coverage.
d. Any failure of CONSULTANT to comply with reporting
provisions of the policy shall not affect coverage provided to CITY
and its officers, employees, agents, and volunteers.
Consulting Services Agreement between August 5, 2003
City of Dublin and CSG Advisors, Inc Page 4 of 13
e. An endorsement shall state that coverage shall not be canceled
except after thirty (30) days' prior written notice by certified mail,
return receipt requested, has been given to the City. Consultant
shall notify City within 14 days of notification from Consultant's
insurer if such coverage is suspended, voided or reduced in
coverage or in limits.
4.3 Professional Liability Insurance. Consultant, at its own cost and expense, shall
maintain for the period covered by this Agreement professional liability insurance
for licensed professionals performing work pursuant to this Agreement in an
amount not less than ONE MILLION DOLLARS ($1,000,000) covering the
licensed professionals' errors and omissions.
4.3.1 Any deductible or self-insured retention shall not exceed $150,000 per
claim.
4.3.2 An endorsement shall state that coverage shall not be suspended, voided,
canceled by either party, reduced in coverage or in limits, except after
thirty (30) days' prior written notice by certified mail, return receipt
requested, has been given to the City.
4.3.3 The policy must contain a cross liability or severability of interest clause.
4.3.4 The following provisions shall apply if the professional liability coverages
are written on a claims-made form:
a. The retroactive date of the policy must be shown and must be
before the date of the Agreement.
b. Insurance must be maintained and evidence of insurance must be
provided for at least five years after completion of the Agreement
or the work, so long as commercially available at reasonable rates.
c. If coverage is canceled or not renewed and it is not replaced with
another claims-made policy form with a retroactive date that
precedes the date of this Agreement, Consultant must provide
extended reporting coverage for a minimum of five years after
completion of the Agreement or the work. The City shall have the
right to exercise, at the Consultant's sole cost and expense, any
extended reporting provisions of the policy, if the Consultant
cancels or does not renew the coverage.
d. A copy of the claim reporting requirements must be submitted to
the City prior to the commencement of any work under this
Agreement.
Consulting Services Agreement between August 5, 2003
City of Dublin and CSG Advisors, Inc Page 5 of 13
4.4 All Policies Requirements.
4.4.1 Acceptabili .ty of insurers. All insurance required by this section is to be
placed with insurers with a Bests' rating of no less than A: VII.
4.4.2 Verification of coverage. Prior to beginning any work under this
Agreement, Consultant shall furnish City with certificates of insurance and
with original endorsements effecting coverage required herein. The
certificates and endorsements for each insurance policy are to be signed by
a person authorized by that insurer to bind coverage on its behalf. The
City reserves the right to require complete, certified copies of all required
insurance policies, at any time.
4.4.3 Subcontractors. Consultant shall include all subcontractors as insureds
under its policies or shall furnish separate certificates and endorsements
for each subcontractor. All coverages for subcontractors shall be subject
to all of the requirements stated herein.
4.4.4 Variation. The City may approve a variation in the foregoing insurance
requirements, upon a determination that the coverages, scope, limits, and
forms of such insurance are either not commercially available, or that the
City's interests are otherwise fully protected.
4.4.5 Deductibles and Self-Insured Retentions. Consultant shall disclose to
and obtain the approval of City for the self-insured retentions and
deductibles before beginning any of the services or work called for by any
term of this Agreement.
During the period covered by this Agreement, only upon the prior express
written authorization of Contract Administrator, Consultant may increase
such deductibles or self-insured retentions with respect to City, its officers,
employees, agents, and volunteers. The Contract Administrator may
condition approval of an increase in deductible or self-insured retention
levels with a requirement that Consultant procure a bond, guaranteeing
payment of losses and related investigations, claim administration, and
defense expenses that is satisfactory in all respects to each of them.
4.4.6 Notice of Reduction in Coverage. In the event that any coverage
required by this section is reduced, limited, or materially affected in any
other manner, Consultant shall provide written notice to City at
Consultant's earliest possible opportunity and in no case later than five
days after Consultant is notified of the change in coverage.
4.5 Remedies. In addition to any other remedies City may have if Consultant fails to
provide or maintain any insurance policies or policy endorsements to the extent
Consulting Services Agreement between August 5, 2003
City of Dublin and CSG Advisors, Inc Page 6 of 13
and within the time herein required, City may, at its sole option exercise any of
the following remedies, which are alternatives to other remedies City may have
and are not the exclusive remedy for Consultant's breach:
· Obtain such insurance and deduct and retain the amount of the premiums for
such insurance from any sums due under the Agreement;
· Order Consultant to stop work under this Agreement or withhold any pa~vrnent
that becomes due to Consultant hereunder, or both stop work and withhold
any payment, until Consultant demonstrates compliance with the requirements
hereof; and/or
· Terminate this Agreement.
Section 5. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES.
Consultant shall indemnify, defend with counsel selected by the City, and hold harmless the City
and its officials, officers, employees, agents, and volunteers from and against any and all losses,
liability, claims, suits, actions, damages, and causes of action arising out of any personal injury,
bodily injury, loss of life, or damage to property, or any violation of any federal, state, or
municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct
or negligent acts or omissions of Consultant or its employees, subcontractors, or agents, by acts
for which they could be held strictly liable, or by the quality or character of their work. The
foregoing obligation of Consultant shall not apply when (1) the injury, loss of life, damage to
property, or violation of law arises wholly from the negligence or willful misconduct of the City
or its officers, employees, agents, or volunteers and (2) the actions of Consultant or its
employees, subcontractor, or agents have contributed in no part to the injury, loss of life, damage
to property, or violation of law. It is understood that the duty of Consultant to indemnify and
hold harmless includes the duty to defend as set forth in Section 2778 of the California Civil
Code. Acceptance by City of insurance certificates and endorsements required under this
Agreement does not relieve Consultant from liability under this indemnification and hold
harmless clause. This indemnification and hold harmless clause shall apply to any damages or
claims for damages whether or not such insurance policies shall have been determined to apply.
By execution of this Agreement, Consultant acknowledges and agrees to the provisions of this
Section and that it is a material element of consideration.
In the event that Consultant or any employee, agent, or subcontractor of Consultant providing
services under this Agreement is determined by a court of competent jurisdiction or the
California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as
an employee of City, Consultant shall indemnify, defend, and hold harmless City for the
payment of any employee and/or employer contributions for PERS benefits on behalf of
Consultant or its employees, agents, or subcontractors, as well as for the payment of any
penalties and interest on such contributions, which would otherwise be the responsibility of City.
Consulting Services Agreement between August 5, 2003
City of Dublin and CSG Advisors, Inc Page 7 of 13
Section 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement,
Consultant shall be an independent contractor and shall not be an employee of
City. City shall have the right to control Consultant only insofar as the results of
Consultant's services rendered pursuant to this Agreement and assignment of
personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have
the right to control the means by which Consultant accomplishes services
rendered pursuant to this Agreement. Notwithstanding any other City, state, or
federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and
any of its employees, agents, and subcontractors providing services under this
Agreement shall not qualify for or become entitled to, and hereby agree to waive
any and all claims to, any compensation, benefit, or any incident of employment
by City, including but not limited to eligibility to enroll in the California Public
Employees Retirement System (PERS) as an employee of City and entitlement to
any contribution to be paid by City for employer contributions and/or employee
contributions for PERS benefits.
6.2 Consultant No Agent. Except as City may specify in writing, Consultant shall
have no authority, express or implied, to act on behalf of City in any capacity
whatsoever as an agent. Consultant shall have no authority, express or implied,
pursuant to this Agreement to bind City to any obligation whatsoever.
Section 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this
Agreement.
7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall
comply with all laws applicable to the performance of the work hereunder.
7.3 Other Governmental Regulations. To the extent that this Agreement may be
funded by fiscal assistance from another governmental entity, Consultant and any
subcontractors shall comply with all applicable rules and regulations to which
City is bound by the terms of such fiscal assistance program.
7.4 Licenses and Permits. Consultant represents and warrants to City that
Consultant and its employees, agents, and any subcontractors have all licenses,
permits, qualifications, and approvals of whatsoever nature that are legally
required to practice their respective professions. Consultant represents and
warrants to City that Consultant and its employees, agents, any subcontractors
shall, at their sole cost and expense, keep in effect at all times during the term of
this Agreement any licenses, permits, and approvals that are legally required to
practice their respective professions. In addition to the foregoing, Consultant and
any subcontractors shall obtain and maintain during the term of this Agreement
valid Business Licenses from City.
Consulting Services Agreement between August 5, 2003
City of Dublin and CSG Advisors, Inc Page 8 of 13
7.5 Nondiscrimination and Equal Opportuni .ty. Consultant shall not discriminate,
on the basis of a person's race, religion, color, national origin, age, physical or
mental handicap or disability, medical condition, marital status, sex, or sexual
orientation, against any employee, applicant for employment, subcontractor,
bidder for a subcontract, or participant in, recipient of, or applicant for any
services or programs provided by Consultant under this Agreement. Consultant
shall comply with all applicable federal, state, and local laws, policies, rules, and
requirements related to equal opportunity and nondiscrimination in employment,
contracting, and the provision of any services that are the subject of this
Agreement, including but not limited to the satisfaction of any positive
obligations required of Consultant thereby.
Consultant shall include the provisions of this Subsection in any subcontract
approved by the Contract Administrator or this Agreement.
Section 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause
upon written notification to Consultant.
Consultant may cancel this Agreement upon thirty (30) days' written notice to
City and shall include in such notice the reasons for cancellation.
In the event of termination by City, Consultant shall be entitled to compensation
for services satisfactorily performed to the effective date of termination in
accordance with Section 2.2; however, payment of such compensation may be
conditioned upon Consultant delivering to City any or all documents,
photographs, computer software, video and audio tapes, and other materials
provided to Consultant or prepared by or for Consultant or the City in connection
with this Agreement.
8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of
this Agreement beyond that provided for in Subsection 1.1. Any such extension
shall require a written amendment to this Agreement, as provided for herein.
Consultant understands and agrees that, if City grants such an extension,
Consultant shall have no right to receive compensation beyond the maximum
amount provided for in this Agreement. Similarly, unless authorized by the
Contract Administrator, Consultant shall have no right to receive reimbursement
for any otherwise reimbursable expenses incurred during the extension period.
8.3 Amendments. The parties may amend this Agreement only by a writing signed
by all the parties.
8.4 Assignment and Subcontracting. City and Consultant recognize and agree that
this Agreement contemplates personal performance by Consultant and is based
Consulting Services Agreement between August 5, 2003
City of Dublin and CSG Advisors, Inc Page 9 of 13
upon a determination of Consultant's unique personal competence, experience,
and specialized personal knowledge. Moreover, a substantial inducement to City
for entering into this Agreement was and is the professional reputation and
competence of Consultant. Consultant may not assign this Agreement or any
interest therein without the prior written approval of the Contract Administrator.
Consultant shall not subcontract any portion of the performance contemplated and
provided for herein, other than to the subcontractors noted in the proposal,
without prior written approval of the Contract Administrator.
8.5 Survival. All obligations arising prior to the termination of this Agreement and
all provisions of this Agreement allocating liability between City and Consultant
shall survive the termination of this Agreement.
8.6 Options upon Breach by Consultant. If Consultant materially breaches any of
the terms of this Agreement, City's remedies shall included, but not be limited to,
the following:
8.6.1 Immediately terminate the Agreement;
8.6.2 Retain the plans, specifications, drawings, reports, design documents, and
any other work product prepared by Consultant pursuant to this
Agreement;
8.6.3 Retain a different consultant to complete the work described in Exhibit A
not finished by Consultant; or
8.6.4 Charge Consultant the difference between the cost to complete the work
described in Exhibit A that is unfinished at the time of breach and the
amount that Consultant would have received pursuant to Section 2 if
Consultant had completed the work.
Section 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant's Performance. All reports, data,
maps, models, charts, studies, surveys, photographs, memoranda, plans, studies,
specifications, records, files, or any other documents or materials, in electronic or
any other form, that Consultant prepares or obtains pursuant to this Agreement
and that relate to the matters covered hereunder shall be the property of the City.
Consultant hereby agrees to deliver those documents to the City upon termination
of the Agreement. It is understood and agreed that the documents and other
materials, including but not limited to those described above, prepared pursuant to
this Agreement are prepared specifically for the City and are not necessarily
suitable for any future or other use. City and Consultant agree that, until final
approval by City, all data, plans, specifications, reports and other documents are
confidential and will not be released to third parties without prior written consent
of both parties.
Consulting Services Agreement between August 5, 2003
City of Dublin and CSG Advisors, IncPage 10 of 13
9.2 Consultant's Books and Records. Consultant shall maintain any and all ledgers,
books of account, invoices, vouchers, canceled checks, and other records or
documents evidencing or relating to charges for services or expenditures and
disbursements charged to the City under this Agreement for a minimum of three
(3) years, or for any longer period required by law, from the date of final payment
to the Consultant to this Agreement.
9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of
this Agreement requires Consultant to maintain shall be made available for
inspection, audit, and/or copying at any time during regular business hours, upon
oral or written request of the City. Under California Government Code Section
8546.7, if the amount of public funds expended under this Agreement exceeds
TEN THOUSAND DOLLARS ($10,000.00), the Agreement shall be subject to
the examination and audit of the State Auditor, at the request of City or as part of
any audit of the City, for a period of three (3) years after final payment under the
Agreement.
Section 10 MISCELLANEOUS PROVISIONS.
10.1 Attorneys' Fees. If a party to this Agreement brings any action, including an
action for declaratory relief, to enforce or interpret the provision of this
Agreement, the prevailing party shall be entitled to reasonable attorneys' fees in
addition to any other relief to which that party may be entitled. The court may set
such fees in the same action or in a separate action brought for that purpose.
10.2 Venue. In the event that either party brings any action against the other under
this Agreement, the parties agree that trial of such action shall be vested
exclusively in the state courts of California in the County of Alameda or in the
United States District Court for the North District of California.
10.3 Severabilitv. If a court of competent jurisdiction finds or rules that any provision
of this Agreement is invalid, void, or unenforceable, the provisions of this
Agreement not so adjudged shall remain in full force and effect. The invalidity in
whole or in part of any provision of this Agreement shall not void or affect the
validity of any other provision of this Agreement.
10.4 No Implied Waiver of Breach. The waiver of any breach ora specific provision
of this Agreement does not constitute a waiver of any other breach of that term or
any other term of this Agreement.
10.5 Successors and Assigns. The provisions of this Agreement shall inure to the
benefit of and shall apply to and bind the successors and assigns of the parties.
Consulting Services Agreement between August 5, 2003
City of Dublin and CSG Advisors, IncPage 11 of 13
10.6 Use of Recycled Products. Consultant shall prepare and submit all reports,
written studies and other printed material on recycled paper to the extent it is
available at equal or less cost than virgin paper.
10.7 Conflict of Interest. Consultant may serve other clients including the Dublin and
Alameda County Housing Authorities, but none whose activities within the
corporate limits of City or whose business, regardless of location, would place
Consultant in a "conflict of interest," as that term is defined in the Political
Reform Act, codified at California Government Code Section 81000 et seq.
Consultant shall not employ any City official in the work performed pursuant to
this Agreement. No officer or employee of City shall have any financial interest
in this Agreement that would violate California Government Code Sections 1090
et seq.
Consultant hereby warrants that it is not now, nor has it been in the previous
twelve (12) months, an employee, agent, appointee, or official of the City. If
Consultant was an employee, agent, appointee, or official of the City in the
previous twelve months, Consultant warrants that it did not participate in any
manner in the forming of this Agreement. Consultant understands that, if this
Agreement is made in violation of Government Code §1090 et. seq., the entire
Agreement is void and Consultant will not be entitled to any compensation for
services performed pursuant to this Agreement, including reimbursement of
expenses, and Consultant will be required to reimburse the City for any sums paid
to the Consultant. Consultant understands that, in addition to the foregoing, it
may be subject to criminal prosecution for a violation of Government Code §
1090 and, if applicable, will be disqualified from holding public office in the State
of California.
10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus
group, or interview related to this Agreement, either orally or through any written
materials.
10.9 Contract Administration. This Agreement shall be administered by the City
Manager ("Contract Administrator"). All correspondence shall be directed to or
through the Contract Administrator or his or her designee.
10.10 Notices. Any written notice to Consultant shall be sent to:
CSG Advisors, Incorporated
Attention: Gene Slater, Chairman
1 Post Street, Suite 2130
San Francisco, CA 94104
Any written notice to City shall be sent to:
Consulting Services Agreement between August 5, 2003
City of Dublin and CSG Advisors, IncPage 12 of 13
City of Dublin
Attention: City Manager
100 Civic Plaza
Dublin, CA 94568
10.11 Integration. This Agreement, including the scope of work attached hereto and
incorporated herein as Exhibit A and the compensation provisions described in
Exhibit B attached hereto and incorporated herein, represents the entire and
integrated agreement between City and Consultant and supersedes all prior
negotiations, representations, or agreements, either written or oral with respect to
the scope of services described' herein and in Exhibit A attached hereto.
CITY OF DUBLIN CONSULTANT
Richard C. Ambrose Gene Slater, Chairman
City Manager
Attest:
Kay Keck, City Clerk
Approved as to Form:
City Attorney's Office
J:\wpd~FORMS~AGRE\standard consultant services agreement-2001 .doc
Consulting Services Agreement between August 5, 2003
City of Dublin and CSG Advisors, IncPage 13 of 13
EXHIBIT A
SCOPE OF SERVICES FOR BOND FINANCIAL ADVISOR
The City has approved a project, called Fairway Ranch, that includes a total of 587 affordable
units. The City intends to join the California Statewide Communities Development Authority to
facilitate the issuance of tax-exempt bonds to finance the proposed Fairway Ranch multi-family
and senior projects. City desires to use the services of CSG Advisors as its financial advisor in
connection with the proposed bond issuance.
CSG will serve as financial advisor, with Chris Gouig, Senior Advisor as the lead, with respect
to the proposed issuance of tax-exempt bonds for the proposed Fairway Ranch multi-family and
senior rental developments. CSG will:
A. Work on behalf of the City with respect to the proposed issuance of tax-exempt bonds in
reviewing documents, offering statements, bond structure, credit enhancement, how senior and
mezzanine debt affects project and changes in sources and uses, and pro forma.
B. Identify issues and choices that may affect the City, including indemnification, effect on
phasing and timing, City affordability requirements and enforcement, etc.
C. Assist in reviewing the California Debt Limit Allocation Committee (CDLAC) point scoring
for each application, competitiveness of application and options and suggestions, including input
from CDLAC staff.
D. Help coordinate schedule with City actions, review application and bond status and deadlines
with City staff and attorney.
E. Assist with bond pricing and timing, review of investment agreements.
F. Assist with bond closing.
Payment for this transaction work will be fully contingent upon bond closing and will come from
the proceeds of the bond issuance. Under no circumstances will the City of Dublin be obligated
to pay CSG for any of the work performed pursuant to this agreement.
Consulting Services Agreement between August 5, 2003
City of Dublin and CSG Advisors, Inc.--Exhibit A Page 1 of 1
EXHIBIT B
COMPENSATION
Payment of all sums payable to Consultant pursuant to this agreement is contingent upon the
issuance of the bonds identified in Exhibit A ("the Bonds") and payable from the proceeds
thereof or from other funds available to the developer of the project identified in Exhibit A
("Developer"). No sum payable to Consultant hereunder shall be a financial responsibility of the
City of Dublin. Consultant acknowledges that the source of payment is intended to be the
proceeds of the Bonds, and that notwithstanding anything to the contrary contained herein, the
City has no obligation to make payment to Consultant for the services to be rendered pursuant to
this agreement under any circumstance, including without limitation the failure of the Bonds to
be issued. Consultant shall be solely responsible for making any arrangement necessary to obtain
approval for payment of compensation from the proceeds of the Bonds.
Consultant compensation shall be as follows:
For a rated, credit enhanced series of tax-exempt bonds - $25,000 for first $5 million, plus 1/10
of 1 percent for the remainder up to an aggregate maximum total of $47,500.
$2,000 maximum in reimbursable expenses such as travel, telephone, package delivery,
document production and reproduction and fax.
For a second bond issue sold at the same time with the same credit enhancer and bond structure
$27,000.
In addition to the foregoing:
· the fee limit for a short-term escrow note will be $10,000; and
· for a subordinate series of bonds on the same project the fee limit will be $15,000
Total compensation is not to exceed $100,000.
Consulting Services Agreement between August 5, 2003
City of Dublin and CSG Advisors - Exhibit B Page 1 of 1
MARTIN W. INDERBITZEN
Attorney at Law
July 9.9; 2003
Via Facsimile: 833-6651
Julia Abdala
' Coramunity Developt~ent Department
City of Dubl~
100 Civic plaza
Dublin, CA 94568
Re: Consulting Services Agreement Between
The City of Dublin and CSG Advisors, Inc.
Dear Julia:
The purpose of this correspondence is to confirm our acknowledgment that the
City of Dublin proposes to enter into an agreement for consulting services with CSG
Advisors, ~c. where/n CSG Advisors will serve as a financial advisor to the City of
Dublin in connection with the issuance of tax-exempt bonds issued for the Fairway
Ranch multiple family and senior remal developmenta. The agreement contemplates that
the fees payable to CSG Advisors under the terms of the contract will be paid from
proceeds of tax-exempt bonds issued for the Fairway Ranch multiple family and smior
rental developments. It is further understood and agreed that the exclusive source of
compensation for CSG Advisors will be from these bond proceeds in the amount set forth
in the agreement between the City of Dublin and CSG Advisors, Inc.
Immediately following approval of the agreement by the Dublin City Council, a
copy of the same will be attached to this letter.
Very truly yours,
Attorney for Dublin Ranch Senior Apartments, LP
and Fairway Family Community, LP
MWI/lmh
cc: Jim Tong
7077 Koll Center Parkway, Suite 120, Pleaaanton, California 94566 Phone 925 485-1080 Fox 92,5 485-10§5
JUL-Bg-8003 08:58PH TEL) ID)DUBLIN CITY HGR OFFC PRGE:001 E=100~.