2010/11/23 City Council Resolution 2010-129RESOLUTION NO. 2010 -129
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK,
CALIFORNIA APPROVING AN AMENDED AND RESTATED LEASE WITH THE
COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF ROHNERT PARK
FOR PROPERTY LOCATED AT 100 ENTERPRISE DRIVE AND COMMONLY
KNOWN AS 6800 HUNTER DRIVE
WHEREAS, the City of Rohnert Park ( "City ") and the Community Development
Commission of the City of Rohnert Park ( "CDC ") (prior to January 24, 1995, the CDC was
formerly known as the Community Development Agency of the City of Rohnert Park) previously
entered into a lease of that real property located at 100 Enterprise Drive within the City and made
appropriate findings as required by Health & Safety Code § 33445 as reflected in City Resolution
No. 90 -20 and CDC Resolution No. 90 -02; and
WHEREAS,. City and CDC desire to amend and restate the lease for the property,
providing for City's continued use, operation and maintenance of the property for public
purposes benefiting CDC's redevelopment project area and otherwise permissible under the
California Redevelopment Law [Health & Safety Code § §33000 et seq.,]; and,
WHEREAS, the lease; as amended and restated, shall confer a substantial benefit both
within. and without the Rohnert Park Redevelopment Project Area ( "Project Area "), will assist
CDC in reducing blighted conditions within the Project Area, and will continue to allow City to
provide its citizens with needed public services.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Rohnert
Park as follows:
1. Pursuant to Health and Safety Code § 33430 and § 33423, it is permissible for
City and CDC to enter into the Amended and Restated Lease, and the current and intended public
uses of the property by City to provide services to seniors and other citizens within the
community and the Project Area is in accordance with Health and Safety Code § 33035, § 33037,
and §33071.
2. The Amended and Restated Lease with CDC for the property at 100 Enterprise
Drive is hereby approved.
3. The Mayor is hereby authorized and directed to execute the Amended and
Restated Lease and the City Manager is authorized and directed to execute all documents related
thereto, for and on behalf of City.
4. The City Manager is further authorized and directed to administer the Amended
and Restated Lease and to make interpretations of, and minor amendments to, the Amended and
Restated Lease for and on behalf of City, provided such interpretations or amendments do not
impose an additional cost upon City.
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DULY AND REGULARLY ADOPTED this 23rd day of November, 2010.
CITY OF ROHNERT PARK
Mayor
BELFORTE: AYE BREEZE: AYE CALLINAN: AYE MACKENZIE: AYE_ STAFFORD: AYE
AYES: (5) NOES: (0) ABSENT: (0) ABSTAIN: (0)
(2)
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AMENDED AND RESTATED LEASE AGREEMENT
[ 100 Enterprise Drive]
Dated as of November 23, 2010
between
CITY OF ROHNERT PARK, CALIFORNIA
and
COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF ROHNERT PARK
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Table of Contents
RECITALS...................................................................................................... ............................... 1
COVENANTS............................................................................:.................... ...............................
2
ARTICLEI - Lease ........................................................................................... ...............................
2
Section1.01 - Lease ............................................................................. ...............................
2
Section1.02 - Term ........:....................................:................................ ...............................
2
Section1.03 — Rental ........................................................................... ...............................
2
Section1.04 — Purpose ......................................................................... ...........:...................
2
Section1.05 — Improvements ......................... :...................................................................
3
Section1.06 — Termination .................................................................. ...............................
3
ARTICLE II - Quiet Enjoyment and Right of Entry .....................
Section2.01 — Quiet Enjoyment ............... :....... ...................................................................
3
Section 2.02.— Right of Entry .............................:...:............................ .......................:.......
4
ARTICLE III - Assignment, Subleasing, Mortgaging and Selling .................. ...............................
4
Section 3.01 — Assignment and Subleasing ......................................... ............................... 4
Section 3.02 — Tax Covenants ................ . ............................... 4
ARTICLEIV - Default .................................................................................... ............................... 5
Section4.01 — Default .......................................................................... ............................... 5
ARTICLEV - Special Covenants........... .......................................................... ............................... 5
Section5.01 — Owner in Fee ................................................................ ...............................
5
Section5.02 — Taxes ............................................................................ ............................... 5
Section5.03 — Waste ............................................................................ ...............................
5
Section 5.04 — Further Assurances and Corrective Instruments .......... ...............................
5
ARTICLE VI - Use of Project; Maintenance; Taxes; Modification; and Other Matters ................
5
Section 6.01 — Use of Project by City .................................................. ...............................
5
Section 6.02 — Maintenance and Utilities by City ............:.................. ...............................
6
Section 6.03 — Taxes and Other Governmental Charges ..................... ...............................
6
Section 6.04 - Modification of Project ................................................ ...............................
6
Section 6.05 — Installation of City's Equipment .................................. ...............................
7
Section6.06 — Liens ............................................................................. ...............................
7
ARTICLEVII - Insurance ............................................................................... ...............................
7
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Section 7.01 — Insurance Policies Required ..........:.............................. ............................... 7
ARTICLE VIII - Miscellaneous ...................................................................... ........:...................... 8
Section 8.01— Waiver of Personal Liability ........................................ ............................... 8
Section 8.02 — Partial Invalidity ........................................................... ........................:...... 8
Section8.03 — .Notices ......................................................................... ............................... 8
Section 8.04 — Binding Effect .............................................................. ............................... 8
Section 8.05 — Amendments, Changes and Modification .................... ............................... 8
Section 8.06 — Execution in Counterparts ............................................ ............................... 8
Section8..07 — Applicable Law ............. ......................................... :.................................... 8
Section8.08 — Headings ............................................:......................... ............................... 9
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AMENDED AND RESTATED LEASE AGREEMENT
THIS AMENDED AND RESTATED LEASE AGREEMENT ( "Restated Lease ")
is made and entered into as of this 23`d day of November, 2010, by and between the CITY OF
ROHNERT PARK, CALIFORNIA ( "City ") and the COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF ROHNERT PARK ( "CDC ").
RECITALS
WHEREAS, on November 23, 1990, City and CDC (prior to January 24, 1995,
the CDC was formerly known as the Community Development Agency of the City of Rohnert
Park) entered into that Lease Agreement ( "Original Lease ") for the Site (as defined below) for
the purpose of facilitating the acquisition, construction, rehabilitation or improvement of a
senior citizens center and appurtenances and appurtenant work together with incidental expenses
in connection therewith ( "Project "), located on real property owned by CDC as described more
specifically in the legal description attached hereto and incorporated herein by this reference as
in Exhibit "A" located at 100 Enterprise Drive ( "Site ") and commonly known as 6800 Hunter
Drive; and
WHEREAS, City and CDC are authorized under the Constitution and laws of the
State of California to enter into the Original Lease and this Restated Lease; and
WHEREAS, prior to entry into the Original Lease, a Redevelopment Plan for the
redevelopment project area designated as the " Rohnert Park Redevelopment Project" (the
"Project Area") was approved by City and CDC. In accordance with and to implement the
Redevelopment Plan and for purposes of implementing redevelopment activities of CDC
benefiting the Project Area, CDC entered into the Original Lease with City; and
WHEREAS, as part of approval of the Original Lease, CDC and the City Council
of City each determined by resolution that pursuant to Section 33445 of the Health and Safety
Code the acquisition, construction, rehabilitation or improvement of the Project, would benefit
the Project Area and further the purpose of redevelopment ; and
WHEREAS, in order to finance the Project and other public improvements, CDC
issued the $12,000,000 Community Development Commission of the City of Rohnert Park,
California, Rohnert Park Redevelopment Project, Tax Allocation Bonds, Issue of 1988 (the
"Bonds "); and
WHEREAS, the Project was built on the Site and City used, operated and
maintained the Project in accordance in all respects with the Original Lease through expiration of
the Term of the Original Lease in June of 2005. Following expiration of the Term of the
Original Lease, City continued to use, operate and maintain the Project in accordance in all
respects with the Original Lease, except for the surrender provision, with the full knowledge and
acquiescence of CDC. City and CDC desire to continue City's use, operation and maintenance
of the Project for a new Term and to ratify such action by City during the. expired Term of the
Original Lease through approval of this Restated Lease, as provided herein.
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COVENANTS
NOW, THEREFORE, for and in consideration of the premises and covenants and
conditions hereinafter contained, the parties agree as follows:
ARTICLE I - Lease
Section 1.01 Lease
. CDC leases to City and City leases from CDC, on the terms and conditions set forth
herein, the Site located at 100 Enterprise Drive and commonly known as 6800 Hunter Drive:
City of Rohnert Park, California
County of Sonoma
State of California
more specifically described in the legal description attached hereto and incorporated herein as
Exhibit "A ".
Section 1.02 — Term Ratification and Holdover.
The Term of the Original Lease (the "Term ") commenced on November 23, 1990 and
shall remain in full force and effect from. such date to and including:
July 1, 2020
unless such term is extended by mutual agreement of the parties memorialized in writing or
earlier terminated, as provided in this Restated Lease. CDC acknowledges that when the
Original Term expired in June of 2005, City did not surrender the Site and continued to use,
operate, and maintain the Project in accordance with the Original Terms in all respects except for
surrender and. did so with the full knowledge and acquiescence of CDC. City and CDC hereby
ratify and approve City's occupancy and use of the Site during the period of June 2005 up to and
through the effective date of this Restated Lease and consider it as part of the Term.
The parties agree that upon expiration of the Term, City may holdover its tenancy on a month by
month basis by complying with its obligations under this Restated Lease. In the event of a
holdover, the monthly tenancy shall be subject to termination as provided below in this Restated
Lease.
Section 1.03 — Rental
In consideration of the lease of the Site to City, City shall pay all of the costs of using,
operating, and maintaining the Project on the Site (including all taxes and utilities if any) as
provided in Article VI hereof.
Section 1.04 — Purpose
City shall use the Project for the public purposes benefiting the Project Area and
otherwise in accordance with the purpose of the California Community Redevelopment Law.
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The parties agree that the following uses, without limiting use of the Project to solely these uses,
meet the aforementioned requirement: operation of a senior citizens center; operation of
facilities providing health, occupational, developmental, and/or recreational programs and
services to members of or certain segments in need within the community; and similar uses.
Section 1.05 — Improvements
Title to all. improvements made on the Site during the Term hereof, including the Project,
shall vest in CDC.
Section 1.06 — Termination
City agrees, upon termination of this Restated Lease, to quit and surrender the Site in the
same good order and condition as the same was in at the time of commencement of the Term
hereunder, reasonable wear and tear excepted, and agrees that any permanent improvements and
structures existing upon the Site at the time of the termination of this Restated Lease, including
the Project, shall remain thereon and title thereto shall vest in CDC.
ARTICLE II - Quiet Enjoyment and Right of Entry
Section 2.01 — Quiet Enjoyment
CDC covenants and agrees that it will not take any action to prevent City from having
quiet and peaceable possession and enjoyment of the Site during the Term hereof and will, at the
request of City, and at CDC's cost, to the extent that it may lawfully do so, join in any legal
action in which City asserts its right to such possession and enjoyment.
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Section 2.02 — Right of Enter
CDC reserves the right for any of its duly authorized representatives to enter upon the
Site at any reasonable time to inspect the same or to make any repairs, improvements or changes
necessary for the preservation thereof.
ARTICLE III - Assignment, Subleasing, Mortgaging and Selling
Section 3.01 — Assignment and Subleasing
Provided the use of the Project will continue to conform to the requirements of this
Restated Lease, City may assign its rights under this Restated Lease or sublet the Project without
the written consent of CDC. Any leases executed prior to the date hereof are hereby ratified and
approved.
Section 3.02 — Tax. Covenants
a) Private Business Use Limitation. The Project shall be leased such that not more than ten
percent (10 %) of the net proceeds of the Bonds deposited in the redevelopment fund established
in connection with the Bonds shall be used in a manner which would cause the bonds to become
"private activity bonds" under and within the meaning of Section 141(a) of the Internal Revenue
Code of 1986, as amended (the "Code").
City shall not use nor permit the use, directly or indirectly, of gross proceeds of the
Bonds in an amount equal to or in excess of five percent (5 %) of the net proceeds of the Bonds in
one or more trades or businesses carried on by any persons other than a governmental unit (i) for
any use not functionally and operationally related to the governmental use of.such proceeds, (ii)
for any use so related to a governmental use in any amount in excess of the portion of net
proceeds used for such related governmental use, or (iii) for a combination of such uses.
b) Private Loan Limitation. Not more than five percent (5 %) of the net proceeds of the
Bonds shall be used, directly or indirectly; to make or finance a loan (other than loans
constituting non - purpose investments or assessments) to persons other than state or local
government units.
C) Management and Service Contracts. City will maintain and operate the Project. If City
should choose to enter into management or service contracts or management or service
agreements with private or non - governmental entities under which such private or non-
governmental entities will directly or indirectly benefit from the issuance of the Bonds, City will
- ensure that the terms (including renewal options) of such agreements or contracts shall not
exceed 5 years; that any payments made pursuant to such agreements or arrangement will be on a
flat fee basis and reasonable in relation to the services performed rather than based upon a
percentage of profits; and that such agreements or contracts may terminated by City, acting in
concert with CDC, without penalty at the end of any three -year period.
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ARTICLE IV - Default
Section 4.01 — Default
In the event City shall be in default in the performance of any obligation on its part to be
performed under the Terms of this Restated Lease, which default continues for thirty (30) days
following notice and demand for correction thereof to CDC, CDC may exercise any and all
remedies granted by law.
ARTICLE V - Special Covenants
Section 5.01 — Owner in Fee
CDC covenants that it is the owner in fee of the Site or that it otherwise has such rights in
and to the Site as shall legally and properly permit the construction and installation of the Project
on the Site.
Section 5.02 — Taxes
City covenants and agrees to pay any and all assessments of any kind or character and
also all taxes, including possessory interest taxes, levied or assessed upon the Site (including
both land and improvements).
Section 5.03 - Waste
City agrees that at all times that it is in possession of the Site, it will not commit, suffer or
permit any waste on the. Site, and that it will not willfully or knowingly use or permit the use of
the Site for any illegal purpose or act:
Section 5.04 — Further Assurances and Corrective Instruments
City and CDC agree that they will, from time to time, executed, acknowledge and deliver,
or cause to be executed, acknowledged and delivered, such supplements hereto and such further
instruments as may reasonably be required for correcting any inadequate or incorrect description
of the Site hereby leased or intended to be leased or for carrying out the expressed intention of
this Restated. Lease.
ARTICLE VI - Use of Project; Maintenance; Takes; Modification; and Other Matters
Section 6.01 — Use of Project by City
In consideration of the payment by City of the amounts specified in Section 6.02 and
Section 6.03 hereof, CDC hereby agrees to allow City full and complete use of the Project and
the Site during the Term. In connection therewith, CDC hereby agrees that.City shall have full
administrative control over the day -to -day operations of the Project and the Site and may require
regulatory licenses and impose user charges and user fees of other users of the Project and the
Site. All rents, issues, profits, royalties and other benefits derived from such regulatory licenses,
user charges and user fees shall accrue solely to benefit City.
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In accordance with Section 1.05 hereof, title to the Project and any and all additions
which comprise fixtures, repairs, replacements or modifications will be retained by CDC during
the Term.
Section 6.02 — Maintenance and Utilities by City
During the Term, as part of the consideration for the use of the Project and Site by City in
accordance with Section 6.01 hereof, all costs of the improvement, repair, operations and
maintenance of the Project and Site, .including, but not limited to, all costs of janitorial services
and landscape maintenance, shall be the responsibility of City and City.shall pay for or otherwise
arrange for the payment of all utility services supplied to the Project and Site which may include,
without limitation, janitor service, security, power, gas, telephone, light, heating, water and all
other utility services, and shall pay for or otherwise arrange for the payment of the cost of repair
and replacement of the Project and Site resulting from ordinary wear and tear or want of care on
the part of City or any assignee thereof.
Section 6.03 - Taxes and Other Governmental Charges
The parties to this Restated Lease contemplate that the Project and Site will be used for a
governmental or proprietary purpose of City in accordance with Section 6.01 hereof and that the
Project and Site will be exempt from all taxes presently assessed and levied with respect to real
property, except assessments. If the use, possession or acquisition of the Project and Site is
found to be subject to taxation in any form (except for income or franchise taxes of CDC), City
shall pay during the Term such amounts in each year as shall be required by CDC for the
payment of all taxes and assessments of any type or nature charged to CDC affecting the Project
and Site or the Respective interests or estates of City or CDC therein, or affecting the amount of
Lease Payments received by CDC (including taxes or assessments assessed or levied by any
governmental agency having power to levy taxes or assessments); provided that, with respect to
special assessments or other governmental charges that may lawfully be paid in installments over
a period of years, City shall be obligated to pay only such installments as are accrued during the
Term.
Section 6.04 — Modification of Project
City, and any assignee, shall, at their own expense, have the right to remodel the Project
or to make additions, modifications and improvements thereto. All such additions, modifications
and improvements shall thereafter comprise part of the Project and be subject to this Restated
Lease. Such additions, modification and improvements shall not in any way damage the Project
or cause it to be used for purposes other than those authorized under the provisions of state and
federal law; and the Project, upon completion of such additions, modifications and
improvements, shall be of a value which is not substantially less than the value of the Project
immediately prior to the making of such additions, modifications, and improvements. City will
not permit any mechanic's or other lien to be established or remain against the Project for labor
or materials furnished in connection with any remodeling, additions, modifications,
improvements, repairs, renewals or replacements. Upon termination of this Agreement, City
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may remove any fixture, structure or sign added by City, but such removal shall be accomplished
so as to leave the Project, except for ordinary wear and tear, in substantially the same condition
as it was in before the fixture, structure or sign was attached.
Section 6.05 — Installation of City's Equipment
City may, at anytime in its sole discretion and at its own expense, install or permit to be
installed other items of equipment or other personal property in or upon the Project. All such
items shall remain the sole property of City and may be modified or removed by City at any time
provided that City shall repair and restore any and all damage to the Project and Site resulting
from the installation, modification or removal of any such items. Nothing in this Agreement
shall prevent City from purchasing items to be installed pursuant to this Section under a
conditional sale or lease purchase contract, or subject to a vendor's lien or security agreement, as
security for the unpaid portion of the purchase price thereof, provided that no such lien or
security interest shall attach to any part of the Project or Site.
Section 6.06 —Liens .
If City shall at any time during the Term of this Restated Lease cause an y changes,
alterations, additions, improvements, or other work to be done or performed or materials to be
supplied, in or upon the Project or Site, City shall pay, when due, all sums of money that may
become due for, or purporting to be for, any labor, services, materials, supplies or equipment
furnished or alleged to have been furnished to or for City in, upon or about the Project or Side
and which may be secured by any mechanic's, material -man's or other lien against the Project or
Site or, CDC's.interest therein. City will cause each such lien to be fully discharged and released
at the time performance of any obligation secured by any such lien matures or becomes due,
except that, if City desires to contest any such. lien, it may do so. If any such lien shall be
reduced to final judgment and such judgment or such process as maybe issued for the
enforcement thereof is not promptly stayed, or if so stayed and such stay thereafter expires, City
shall forthwith pay and discharge such judgment.
ARTICLE VII - Insurance
Section 7.01 — Insurance Policies Required
City covenants to maintain or cause to be maintained the following types of insurance to
cover the Project and/or the Site as required in the types and in the amounts as may be
determined in its sole discretion:
a) Public liability and property damage insurance;
b) Fire and extended coverage insurance;
c) Worker's compensation insurance; and
d) Use and occupancy insurance.
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ARTICLE VIII - Miscellaneous
Section 8.01 — Waiver of Personal Liability
All liabilities under this Restated Lease on the part of City are solely liabilities of City,
and CDC hereby releases each and every incorporator, member, director and officer of CDC of
and from any personal or individual liability under this Restated Lease. No incorporator,
member, director or officer of City shall at any time or under any circumstances be individually
or personally liable for anything done or omitted to be done by City under this Restated Lease.
Section 8.02 — Partial Invalidity
If any one or more of the terms, covenants or conditions of this Restated Lease shall to
any extent be declared invalid, unenforceable, void or voidable for any reason whatsoever by a
court of competent jurisdiction, the finding or order or decree of which becomes final, none of
the remaining terms, provisions, covenants and conditions of this Restated Lease shall be
affected thereby, and each provision of this Restated Lease shall be valid and enforceable to the
fullest extent permitted by law.
Section 8.03 — Notices
Any notices or filings required to be given or made under this Restated Lease shall be
served, given or made in writing upon City by personal delivery or registered mail addressed to:
City of Rohnert Park, California
6750 Commerce Boulevard
Rohnert Park, California 94928
And upon CDC by personal delivery or registered mail addressed to:
Community Development Commission of the City of Rohnert park
6750 Commerce Boulevard
Rohnert Park, California 94928
or at such other place as may be designated by either party in writing.
Section 8.04 — Binding Effect
This Restated Lease shall inure to the benefit of and shall be binding upon City, CDC and
their respective successors and assigns.
Section 8.05 — Amendments, Changes and Modification
This Restated Lease shall not be effectively amended, changed, modified, altered or
terminated without the written agreement of both parties hereto.
Section 8.06 — Execution in Counterparts
This Restated Lease may be simultaneously executed in several counterparts, each of
'which shall be an original and all of which shall constitute but one and the same instrument.
Section 8.07 — Applicable Law
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This Restated Lease Agreement shall be governed by and construed in accordance with
the laws. of the State of California.
Section 8.08 — .Headings
The captions or headings in this Restated Lease are for convenience only and in no way
define, limit or describe the scope or intent of any provisions or sections of this Restated Lease.
IN WITNESS WHEREOF, the parties have executed this Restated Lease by their officers
duly authorized as of the day and year first written above.
CITY OF ROHNERT PARK, CALIFORNIA
By:
Mayor
ATTEST:
City Clerk
COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF ROHNERT
PARK
By:
Chair
ATTEST:
Secretary
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