HomeMy WebLinkAbout8.1 BART Dublin Blvd Extension Project CITY OF DUBLIN
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: October 28, 1991
SUBJECT: Authorization to Request Advance of Funds from the Bay
Area Rapid Transit District (BART) for Construction of
the Dublin Boulevard Extension Project
(Prepared by: Richard C. Ambrose, City Manager)
EXHIBITS ATTACHED: Exhibit 1 : Draft Letter
Exhibit 2: Agreement dated March 27, 1990
RECOMMENDATION: uthorize City Manager to request a $2.285 million
j / advance in funds from the Bay Area Rapid Transit District
1�. for the Dublin Boulevard Extension Project.
FINANCIAL STATEMENT: The Bay Area Rapid Transit District has legally
committed to advancing $2.285 million to the City of
Dublin for the construction of the Dublin Boulevard
Extension Project. Depending upon the parking
configuration of the eastern Dublin BART Station,
the terms for repayment of this advance vary. If
all of the parking for the eastern Dublin BART
Station is on the north side of I-580, $2, 285
million dollar advance must be paid with interest
within 20 years to the extent that the City is
legally able impose or collect assessments,
exactions, etc. sufficient to repay advance. If the
Bay Area Rapid Transit District determines to split
the parking between Dublin and Pleasanton for the
eastern Dublin Station, BART will advance the City
of Dublin $1 .061 million on a long term basis under
the same conditions identified above and $1 . 224
million which shall be repaid in full to BART for
any source by December 31 , 1995. Pursuant to a
subsequent agreement between the City of Dublin and
the County of Alameda, the County has guaranteed to
repay the short term advance in the event that
sufficient assessments from new development in the
eastern Dublin area are not sufficient to pay the
advance by December 31 , 1995.
DESCRIPTION: On March 27, 1990 as a result of litigation between the
City of Dublin and the Bay Area Rapid Transit District (BART) , the City and
BART entered into an agreement which provided that BART would advance the
City of Dublin $2, 285 million dollars for the purpose of acquiring right of
way and constructing the Dublin Boulevard Extension Project. The basis for
this Agreement was that Dublin Boulevard Extension Project is necessary to
provide access to the parking lot for the eastern Dublin BART Station.
The Agreement authorizes the City to request that BART advance these funds
only if one of the following conditions are met: 1 ) The City adopts a
resolution of necessity to condemn property for the roadway extension; 2) The
City's offer to purchase the right of way necessary for the project has been
accepted; or 3) A contract has been executed for the construction of the
roadway extension.
If the City Council on October 28, 1991 adopts the Resolution of Necessity
commencing eminent domain proceedings for the acquisition of those properties
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COPIES TO: (6062- zlo)
ITEM NO. ♦ CI CLERK
FILE
required for the construction of the Dublin Boulevard Extension, the City has
the legal right to request the fund advance.
The Agreement also requires that these funds will be available to the City to
be drawn upon for a period of 24 months from March 27, 1990. In order to be
able to let a contract prior to this date, the City must have possession of
the property 90 days prior to the date that the construction contract is
awarded. Prior to applying for an order of possession, the City must deposit
the funds representing the appraised value of the properties to be acquired
with the Court. Therefore, if the City Council intends to request the
advance of funds from BART and meet the schedule under the terms of the
Agreement, it is necessary that the Council authorize the request for the
advance of funds at this meeting.
a:sl028ex$.agenda#6
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October 29, 1991
Mr. Frank Wilson, General Manager
Bay Area Rapid Transit District
800 Madison Street - Lake Merritt Station
P 0 Box 12688
Oakland, CA 94604-2688
Dear Mr. Wilson:
During the last two years, the City of Dublin has been working with private property owners,
the County of Alameda, the City of Pleasanton, and the U. S. Army to facilitate the
construction of the extension of Dublin Boulevard from Dougherty Road to Tassajara Road.
The City of Dublin has entered into agreements with the City of Pleasanton and the County to
advance a portion of the funds for construction and dedicate right-of-way. The City of
Dublin is also in possession of a right of entry from the U. S. Army to commence
construction on Army property. This right of entry will be effective until the Army conveys
12 acres of road right of way to the City of Dublin.
On March 27, 1990, the City of Dublin and Bay Area Rapid Transit District (BART) entered
into an agreement which recognized the importance of the Dublin Boulevard extension project
in providing access to the future East Dublin BART Station. Pursuant to the terms of the
Agreement, BART agreed to advance the City of Dublin $2.285 million for the purpose of
building this project. As set forth in Paragraph 3(a) of the Agreement, BART will advance
these funds to the City upon 30 days notification by the City that the City had adopted a
resolution of necessity to condemn property for the Roadway Extension. On October 28, 1991 ,
the Dublin City Council adopted a Resolution of Necessity to commence eminent domain
proceedings on five parcels necessary for the construction of this project.
In accordance with the Agreement the City respectfully requests that BART advance $2.285
million to the City within 30 days in order that the City will have the funds available to
acquire right-of-way and construct the project. Further, the City also requests in
accordance with the terms of Paragraph 3(a) that BART make a determination within 25 days of
this notice regarding the parking configuration at the eastern Dublin station, in order that
the terms for repayment of the advance are set.
Thank you for your cooperation and assistance in this matter. If you have any questions
regarding this letter, please let me know.
Sincerely,
DRAFT .
Richard C. Ambrose
City Manager
RCA:slh
cc: Steve Szalay, County Administrator
Deborah Acosta, City of Pleasanton
EXHIBIT I
SETTT,FMENT AGREEMENT AI�L��FLFAS�
THIS SETTLEMENT AGREEMENT AND RELEASE (hereinafter,
the "Agreement" ) is entered into as of March 27 , 1990 , by and
between THE CITY OF DIJBLIN (hereinafter, the "City") and THE
SAN FRANCTS O BAY AggA RAPID TRANSTT DISTRICT (hereinafter,
"BART" ) , on the following terms and conditions .
W I T N E S S E T H:
Whereas on March 12 , 1990 , the City filed a
petition for writ of mandate against BART alleging
violations of the California Environmental Quality Act
( "CEQA" ) , Public Resources Code section 21000 et seq. , with
respect to BART's approval of the Dublin/Pleasanton
Extension Project, which petition is pending in the Superior
Court of the State of California in and for the County of
Monterey, No. 89898 (hereinafter, the "Action" ) ; and
Wler_eas the City has included in its General Plan
a six-lane arterial extension of Dublin Boulevard which is
located north of and parallel to I-580 and east of Dougherty
Road; and an extension of Hacienda Drive from I=580 to the
extension of Dublin Boulevard; and
whereas BART is willing to assist the City in
constructing a two-lane road north of and parallel to I-580
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EXHIBIT aZ
located generally along the alignment of the proposed
extension of Dublin Boulevard and designed to provide
reasonable access to the East Dublin BART station by 1995 by
providing advance funds to enable the City to begin such
construction; and
whereas the parties desire to settle their
disputes and terminate the Action on the terms and conditions
set forth herein:
N o w, T h e r e f o r e, in consideration of the
promises , covenants , and warranties given below, the parties ,
and each of them, agree as follows :
1 . In consideration of the obligations incurred
and promises made herein by BART, the City agrees to dismiss
the Action, with prejudice, and hereby releases and
discharges BART of any and all claims , demands , actions or
causes of action arising out of or connected with the subject
matter of the Action.
2 . In consideration of said dismissal and release
by the City, BART hereby covenants and warrants- to undertake
the following actions :
(a) In the event that BART determines to build
all of its parking for the East Dublin BART Station north of
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Interstate 580 , BART agrees to advance funds on a long-term
basis in the amount of $2 . 285 million for the purpose of
building a two-lane road north of and parallel to I-580
located generally along the alignment of the proposed
extension of Dublin Boulevard between Dougherty Road and the
future extension of Hacienda Drive and designed to provide
reasonable access to the East Dublin BART station, and the
future extension of Hacienda Drive from I-580 to the future
extension of Dublin Boulevard (hereinafter, the "Roadway
Extension" ) . Said advance will be made under the terms and
conditions as set forth in paragraph 3 below .
(b) In the alternative to subparagraph 2 (a) above,
if BART determines to construct parking lots for the East
Dublin BART Station both north and south of Interstate 580 ,
BART agrees to advance funds on (i) a short-term basis in the
amount of up to $1 . 224 million, and ( ii) a long-term basis
in the amount of $1 . 061 million, each advance 1.o be made
under the terms and conditions as set forth in paragraph 3
below, for the purpose of building the Roadway Extension.
3 . The terms and conditions of the advances to be
made by BART identified in subparagraphs 2 (a) and 2 (b) above
are to be as follows :
(a) The funds will be made available by BART
on the terms and conditions set forth in this
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paragraph 3 and may be drawn upon by the City as
needed for the purposes defined herein 30 days
after BART has been notified in writing by the City
that a resolution of necessity to condemn property
for the Roadway Extension has been adopted or that
an offer to purchase has been accepted or that a
contract has been executed for the construction of
the Roadway Extension. Said funds will be made
available at the time specified in this
paragraph 3 regardless of whether construction of
the East Dublin or the West Dublin BART Station is
to be commenced first, provided that if BART has
not yet made a determination regarding
configuration of parking at the East Dublin Station
at the time of the first said notice, BART shall
make such a determination within 25 days of notice
from the City or the provisions of paragraph 2 (a)
shall apply.
(b) The funds will be available to the City
to be drawn upon for a period of 24 months from the
date of this Agreement . This period of time shall
not include the period of time during which a
lawsuit challenging construction of the Roadway
Extension is pending in a court of competent
jurisdiction.
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(c) The parties agree that repayment of said
short-term advance, together with accrued
interest, by the City will be made from the
proceeds of assessments , special taxes , exactions
and/or fees or any bonds secured by such
assessments , special taxes , exactions or fees ,
which are imposed by the City for the costs of
construction of the Roadway Extension or from any
source available to the City, but in any event,
repayment of the entire amount of the short-term
advance drawn by the City, along with accrued
interest:, shall be repaid in full to BAR`f by
December 31, 1995 .
(d) The parties agree that repayment of said
long-term advance, together with accrued interest,
by the City will be made solely from the proceeds
of assessments , special taxes , exactions and/or
fees or any bonds secured by such assessments ,
special taxes , exactions or fees , which are
imposed by the City on any and all property east of
Dougherty Road for the purpose of paying for or
reimbursing the City for the costs of consFtruction
of the Roadway Extension. The City hereby agrees
and promises in good faith to seek a levy of
assessments , special taxes , exactions and/or fees
for the Roadway Extension in a timely manner and to
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the fullest extent allowed by law as repayment of
the above-referenced advances within the periods
specified herein. In no event shall the long-term
advances , together with accrued interest, be repaid
from the City' s general fund or from general
revenues .
To the extent the City is legally unable to
impose and/or collect assessments , special taxes ,
exactions and/or fees in an amount sufficient to
repay the long-term advance made hereunder,
together with accrued interest, for the Roadway
Extension within 20 years of the date of this
Agreement, the City' s repayment obligation shall be
reduced by an amount equivalent to the amount
remaining due at the end of the 20-year period.
(e) The interest rate on the long-term
advances under subparagraphs 2 (a) or 2 (b) above
will be fixed at the time the advance is made and
will be in an amount equal to the average rate of
return on BART' s investments for the proceeding
calendar month. The rate will be adjusted annually
on the anniversary date of this Agreement and will
be based on the average rate of return on BART^' s
investments for the previous three-year period.
Interest will be compounded annually. Both
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principal and accrued interest are to be repaid by
the City to BART from the funds set forth in
subparagraph 3 (d) above in full within 20 years
from the date of this Agreement except as otherwise
provided in subparagraph 3 (d) .
( f) Interest on the short-term advance under
subparagraph 2 (b) above will be fixed at the time
the advance is made and will be in an amount equal
to the average rate of return on BART' s investments
for the proceeding calendar month. The rate will
be adjusted annually on the anniversary date of
this Agreement and will be based on the average
rate of return on BART' s investments for the
previous three-year period. Interest will be
compounded annually.
(g) Both the long-term advance and the short-
term advance, together with accrued interest then
due, may be repaid at any time without a prepayment
penalty.
(h) It is the intention of the City -and BART
that the funds to be advanced by BART as described
in subparagraphs 2 (a) and 2 (b) , above, shall be
advanced to the City to enable the City to begin
right of way acquisition and/or construction of the
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Roadway Extension prior to funding being available
for the full cost of the Roadway Extension. It is
anticipated that such funds will be distributed by
an existing third party entity, such as the City of
Pleasanton through its North Pleasanton Improvement
District; a new entity created in connection with
the construction of the Roadway Extension; or the
parties to a Roadway Extension Construction
Agreement . The form and substance of necessary
documents to effectuate the advances will be
drafted by BART, will be subject to review by the
City as to form and will assure timely receipt of
the advances by the City. The parties agree to
execute all such documents as are necessary to
implement the terms of this Agreement .
In the event the distribution of funds by a
third-party entity is not accomplished within the
time referred to in subparagraph 3 (a) above, BART
will make such funding available directly to the
City within the time and under the terms set forth
in paragraph 3 .
4 . This Agreement constitutes a full and final
compromise, release and settlement, of any and all claims ,
demands , actions or causes of action by BART or by the City
as against each other, arising out of or connected with the
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subject matter of Action No. 89898 . BART and the City
understand and acknowledge that it is possible that unknown
claims exist, the parties have taken that into account in
determining whether to enter into this Agreement and agree as
a further consideration and inducement for this compromise
settlement that it shall apply to all unknown and
unanticipated causes of action in addition to those that are
not disclosed. Consequently, the parties , and each of them,
expressly waive all rights under California Civil Code
section 1542 , which provides as follows :
"A general release does not extend to claims which
the creditor does not know or suspect to exist in
his favor at the time of executing the release,
which if known by him must have materially affected
his settlement with debtor. "
5 . The City hereby authorizes its attorneys of
record to enter a dismissal with prejudice in Action
No . 89898 immediately upon the execution of this Agreement.
6 . An. action in specific performance shall be
the exclusive remedy for a breach by either party of any term
or condition of the Agreement. Each party specifically
disclaims any action for damages . Each party in an 'action
for specific performance shall bear its own costs and
attorneys ' fees .
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7 . This Agreement is freely and voluntarily
entered into by BART and the City. The parties , and each of
them, have been fully advised by their counsel as to the
contents , meaning and significance of this Agreement, the
terms of which are contractual and not a mere recital, and
they fully understand its terms and their effects . Each of
the parties hereto understands that if the facts under which
this Agreement is executed, and for which the dismissal with
prejudice is provided, are found hereafter to be other than
or different from the facts now believed by any party or
parties to be true, such party or parties expressly accept
and assume the risk of such a possible difference in facts ,
and agree that this Agreement shall be and will be effective
notwithstanding such difference in facts .
8 . This Agreement is a compromise and settlement
of disputed claims , and nothing contained herein shall be
construed as an admission of any kind on the part of any
party hereto .
9 . Notwithstanding the provisions of paragraph 7 ,
each party warrants and covenants that it has the present
legal authority to enter into this Agreement and to do the
acts required of it hereunder. If either party is found to
lack the authority to do the acts required of it hereunder,
this Agreement shall be void and each party shall return to
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the position it held immediately preceding the execution of
this Agreement.
10 . This Agreement shall bind, and inure to the
benefit of, all successors and assigns of the parties and
any associates in interest, and their respective directors ,
officers , agents , servants, and employees , and the successors
and assigns of each of them, separately and collectively.
11 . Each party shall bear its own costs and
attorneys ' fees arising out of Action No. 89898 and this
Agreement.
12 . This Agreement shall be construed and
enforced pursuant to the laws of the State of California.
13 . This document embodies the entire terms and
conditions of the Agreement described herein. This
Agreement may be executed in two (2) counterparts, each of
which shall constitute an original .
14 . The undersigned state that they have read the
foregoing Agreement, and know the contents thereof, and each
signs his or her name as an agent of the parties herein, as
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his or her own free act, on the effective date of this
Release as indicated above.
CITY DUBLIN
f
B •/ � �' _
Its
SAN FRANCISCO BAY AREA RAPID
TRANSIT DIS ICT
By:
I s
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