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Home My WebLink AboutR-2019-045 City Authorizing to Execute a First Amendment to the Agreement for a Capacity Allocation in Phase 1 of the C51 Reservoir Project; Providing for Conflicts RESOLUTION NO. 2019-045 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA, AUTHORIZING THE PROPER CITY OFFICIALS TO EXECUTE A FIRST AMENDMENT TO THE AGREEMENT FOR A CAPACITY ALLOCATION IN PHASE 1 OF THE C51 RESERVOIR PROJECT; PROVIDING FOR CONFLICTS; FURTHER, PROVIDING FOR AN EFFECTIVE DATE. BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA: Section 1. That City officials approved an Agreement for Capacity Allocation in Phase 1 of the C-51 Reservoir at the June 26, 2018, City Commission Meeting by a unanimous vote and it was executed by City officials. Section 2. That the proper City officials are authorized to execute a First Amendment Agreement for Capacity Allocation in Phase 1 of the Reservoir Agreement with Palm Beach Aggregates, LLC, which Amendment is attached as Exhibit"A". Section 3. That the City Manager and City Attorney are authorized to make minor revisions to the First Amendment to Agreement Capacity Allocation in Phase 1 C-51 Reservoir Agreement that are deemed necessary and proper for the best interest of the City. Section 4. That all resolutions or parts of resolutions in conflict with this Resolution are repealed to the extent of such conflict. Section 5. That this resolution shall be in full force and take effect immediately upon its passage and adoption. PASSED AND ADOPTED on May 28, 2019. ATTEST: Pz/,-M THOMAS SCHNEIDER, CMC LEW LLEN CITY CLERK d► MAYOR �qe[/SHE01� APPROVED AS TO, O D CORRE TNESS: THOMAS J. A7RO CITY ATTOV FIRST AMENDMENT TO AGREEMENT FOR CAPACITY ALLOCATION IN PHASE 1 OF THE C-51 RESERVOIR CITY OF DANIA BEACH This is a First Amendment ("First Amendment") to the Agreement for Capacity Allocation in Phase 1 of the C-51 Reservoir (the "Agreement"), made and entered into by and between Palm Beach Aggregates, LLC ("Company"), a Florida limited liability company, with its principal offices at 20125 State Road 80, P.O. Box 700, Loxahatchee, Florida 33470, and the City of Dania Beach, Florida ("Participant"), a municipality organized and existing under the laws of the State of Florida, the address of which is 100 W. Dania Beach Blvd, Dania Beach, FL 33004. It is effective as of the date this First Amendment is fully executed by the Parties (the "Effective Date"). Company and Participant shall collectively be called the "Parties" and each is individually identified from time to time as a"Party." Recitals A. The Parties entered into the Agreement on July 31, 2018 to provide for surface water storage capacity in the proposed collaborative development project known as the C-51 Reservoir, as further described in the Agreement ("C-51 Reservoir"), which is intended to be constructed in two phases. B. The Agreement provides for an allocation to Participant of one (1) million gallons per day of storage in Phase 1 of the C-51 Reservoir, as further described in the Agreement("Phase 1 Reservoir"). C. Despite the best efforts of the Parties, it has taken longer than anticipated to satisfy certain conditions precedent set forth in the Agreement, and the Parties desire to amend the Agreement to extend the relevant time periods under it and to continue working together towards completion of the Phase 1 Reservoir project. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged and agreed upon,the Parties agree as follows: 1. The foregoing recitals are true and correct, and they are incorporated by this reference. 2. Unless otherwise stated, for paragraphs 3 —4 below, words in stfuek thr-.ug type are deletions from existing text and words in underline type (aside from previously included headings) are additions to existing text. 3. Section 3.2 of the Agreement is amended, in part,as follows: 3.2 Termination. Upon delivery of written notice to Company, as defined by Article 15 below, Participant may terminate this Agreement: 3.2.1 If Company fails to notify Participant, on or before Atne 30, 241-8 November 30, 2019, that it has sufficient permits, commitments, and financing to commence the construction of the Phase 1 Reservoir; or 4. Section 11.1 of the Agreement is amended, in part, as follows: 11.1 All of Company's obligations under this Agreement are expressly made subject to all of the following conditions,which Company agrees to use its reasonable efforts to promptly pursue and satisfy, time being of the essence: 11.1.2 Company's securing full Construction Financing for the Phase 1 Reservoir within ninety iom days after- the Minimum Reserved Gaparaity Dae on or before November 30, 2019, with a closing date within ninety (90) days thereafter (the "Phase 1 Construction Finance Date"). On or before the tenth (loth) day after the Phase 1 Construction Finance Date, and at least six days before the closing date for Construction Financing, Company shall notify Participant in writing of the Phase 1 Construction Finance Date, as well as the anticipated closing date for Construction Financing. 5. The Agreement is amended to include an Appendix D (C-51 Reservoir—Phase 1 Project Completion Schedule), attached and incorporated by this reference. Company shall use its best efforts to achieve the project milestones listed in Appendix D within the time periods specified. If Company anticipates a delay in achieving any of the project milestones listed in Appendix D, Company shall promptly notify Participant in writing of such anticipated delay. 6. Except as modified in this Amendment, all terms and conditions of the Agreement shall remain in full force and effect. In the event of any conflict or ambiguity between this First Amendment and the Agreement,this First Amendment shall control. 7. This First Amendment is effective on the Effective Date, and may be executed by the Parties in counterparts which, when taken together, shall have the force and effect of an original binding document. (Remainder of Page Intentionally Left Blank) 2 IN WITNESS OF THE FOREGOING, the Parties have caused this Agreement to be executed by their respective duly authorized officers as of the date and year set forth above. PARTICIPANT CITY OF DANIA BEACH, FLORIDA, a Florida municipal corporation ATTEST: THOMAS SCHNEIDER, CMC LORI LEWELLEN CITY CLERK MAYOR APPROVED FOR FORM AND SUBSTANCE ANA M. GARCIA, ICMA-CM CITY MANAGER THOMAS J. ANSBRO CITY ATTORNEY Date: , 2019 3 COMPANY WITNESSES: PALM BEACH AGGREGATES, LLC, a Florida limited liability company By: Signature Name: Enrique Tomeu Title: President Print Name Date: Signature Print Name 4 Appendix D C-51 Reservoir—Phase 1 Project Completion Schedule Revised November 26, 2018 Description Milestone Dates Construction Financing Commitment June 30, 2019 Notice of Construction Financing Commitment July 10, 2019 Closing on Construction Financing September 30, 2019 Commencement of Construction October 2019 Construction Substantial Completion August 2021 Operational Testing September 2021 Final Cleanup and Demobilization September 2021 2021 Closing and Turnover to C-51 Reservoir, Inc. October 2021 Commencement of Operations October 2021