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2007/10/23 City Council Resolution 2007-177RESOLUTION NO. 2007-177 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK, AUTHORIZING AND APPROVING A REIMBURSEMENT AGREEMENT WITH REDWOOD EQUITIES, LLC RELATED TO THE STADUM AREA MASTER PLAN BE IT RESOLVED by the Council of the City of Rohnert Park that the purpose of this Reimbursement Agreement is to provide for payment by the Developer of all costs directly or indirectly incurred by the City in connection with the Project approvals and the Developer's fair share of PFFP legal defense. BE IT FURTHER RESOLVED that the City Council does hereby authorize and approve a Reimbursement Agreement with Redwood Equities, LLC. BE IT FURTHER RESOLVED that that the City Manager is hereby authorized and directed to execute this Reimbursement Agreement in substantially similar form to the attached agreement for and on behalf of the City of Rohnert Park. DULY AND REGULARLY ADOPTED on this 23rd day of October, 2007. CITY OF ROHNERT PARK ATTEST: ig Clerk Mayor V U �'1LIFOftN1p BREEZE: AYE MACKENZIE: AYE SMITH: AYE STAFFORD: AYE VIDAK- MARTINEZ: AYE AYES: (5) NOES: (0) ABSENT: (0) ABSTAIN: (0) REIMBURSEMENT AGREEMENT RELATED TO THE STADIUM AREA MASTER PLAN THIS REIMBURSEMENT AGREEMENT (the "Agreement ") is made and entered into as of the clay of , 2007, by and among the CITY OF ROHNERT PARK ( "City "), a municipal corporation, and Redwood Equities, LLC ( "Developer "). RECITALS A. Developer has submitted application for development of various aspects of the Stadium Area Master Plan (the "Proposed Project "). The Proposed Project requires or contemplates the following approvals, documents and processing activities (collectively, "Project Approvals "): (1) General Plan Amendment; (2) Zone Change (3) Master Plan (4) Final Development Plans; (5) Subdivision maps; (6) An EIR for the Proposed Project; (7) Formation of Community Facilities District (8) Development Agreement; and (9) Any other approvals, documents or processing reasonably necessary to develop the Proposed Project; B. In addition to the Project Approvals, the Proposed Project, along with other concurrent and future development projects within the City, required the preparation and approval of the Public Facilities Financing Plan (" PFFP "). C. Continued implementation of the Proposed Project and processing of the Project Approvals will require City to incur various costs and expenses including staff processing, consultant costs, and legal fees and costs. D. In order to facilitate processing of the Project Approvals, and to induce City to commence negotiation and drafting of the Development Agreement, Developer desires to continue to reimburse City for its costs in connection with the Project Approvals and Developer's fair share of PFFP litigation expenses as set.forth below. AGREEMENT In consideration of the foregoing recitals, and for other good and valuable consideration, the parties hereby agree as follows: L Purpose of Agreement. The purpose of this Agreement is to provide for payment by Developer of all costs directly or indirectly incurred by City in connection with the Project Approvals and Developer's fair share of PFFP legal defense. 2. . Developer Reimbursement Obligation. Developer shall reimburse the City for the following costs (collectively, the "Eligible Costs ") incurred in connection with the Project Approvals and the PFFP: (a) City staff time, processing costs, consultant costs and legal fees associated with all Project Approvals, including legal fees and costs incurred in connection with the legal defense of any Project Approvals; (b) legal fees and costs payable. to City's counsel in connection with the negotiation, drafting, implementation and defense of the proposed Development Agreement; (c) fees and costs payable to financial consultants or real estate economists retained by the City in connection with the negotiation of the proposed Development Agreement, provided, however, Developer's obligation to pay such financial /economic analysis related costs under this subsection (c) shall not exceed Forty Thousand Dollars ($40,000) unless Developer has first approved in its reasonable discretion the scope of any financial/economic analysis work in excess of such amount; and (d) with respect to the PFFP: (i) Developer's fair share (to be determined by City but not to exceed one quarter (1/4)) of the consultant costs and attorneys fees (including payment of third -party legal fees) incurred by City in connection with any defense of the PFFP; Developer's fair share (to be determined by City but not to exceed one - quarter (1/4)) of the consultant costs and legal fees incurred by City in connection with reapproval or amendment of the PFFP in response to any final court judgment or writ issued as a result of a third -party challenge, provided that reapproval or amendment is for the same projects addressed in the current PFFP. If the Public Facilities Financing Plan proposed for reapproval or amendment is not for the same projects as the current PFFP, then Developer will pay its fair share of such reapproval or amendment costs if reapproval or amendment of the Public Facilities Financing Plan is a legal prerequisite for any Project Approvals. (e) The fractional allocations in any subparagraph of section 2(d) above are the result of a negotiated compromise for this one Agreement only, and do not represent any party's determination of fair share allocations of costs. The fact that either or both parties have agreed to these allocations in the Agreement shall not be relevant to any future determination of fair share, or reasonable relationship, regarding processing, infrastructure or any other cost or fee allocations. (fl City shall not be obligated to incur any such Eligible Costs if Developer fails to timely reimburse City as provided in Section 3 below. (g) City and Developer acknowledge that Developer has paid a portion of the Eligible Costs before entering into this written agreement for which it is entitled to full credit toward expenses identified in this Agreement. 3. Payment of Eligible Costs. City shall submit to Developer, not more frequently than monthly, a copy of each invoice, bill, demand or other evidence that the City has incurred Eligible Costs or other reasonable substantiation of such Eligible Costs. Each such invoice, bill, demand, or other evidence of Eligible Costs shall be paid in full by Developer, without deduction or offset, within thirty (30) days after, receipt, subject to Section 5 allowing for withdrawals from the Deposit in lieu of Developer making such, payments. 4. Post 2006 PFFP Updates. Any revisions to the PFFP processed or adopted after adoption of the 2006 PFFP Update shall include in the fees to be charged the consultant costs and legal fees . incurred by City in preparing it.- Accordingly, Developer shall not be obligated to pay such costs except: (a) the fees required under such revisions to the PFFP, (b) Developer's share of any litigation expenses incurred in defending future PFFP revisions as determined by the City. 5. Deposit. Upon signature of this Agreement, Developer shall deposit with City the sum of Fifty Thousand Dollars ($50,000) in cash or other immediately available funds ( "Deposit "), as security for Developer's obligation to. pay all Eligible Costs, as provided herein. If Developer does not pay when due the full amount of each bill, .invoice, demand, or other evidence of Eligible Costs as provided in Section 3 above, then the City is authorized to pay such. amount from the Deposit. If the City withdraws funds from the Deposit, the City shall notify Developer in writing that it has used the Deposit to pay all or a portion of the bill, invoice, demand or other evidence of Eligible Costs and the Developer shall thereafter have ten (10) days to deposit with city, in cash, an amount necessary to restore the Deposit to its fill amount of $50,000: If this Agreement is terminated as provided in Section 8 below, City shall return to Developer within 30 days following the effective date of termination that portion of the Deposit, if any, including interest, that has not been expended or committed by City as provided herein. 6. No Commitment as to Future Approvals. Nothing in this Agreement shall be construed as a commitment to grant or issue any Project Approvals or any other preliminary or final approvals in connection with the Proposed Project or to enter into the proposed Development Agreement. Developer acknowledges and agrees that nothing in this Agreement limits City's discretion, in any manner, with respect to any aspect of the.Proposed Project or the proposed Development Agreement. Developer agrees that it shall remain obligated to pay all Eligible Costs, regardless of whether any aspect of the Proposed Project is approved and regardless of whether City and Developer enter into the proposed Development Agreement. Conditional approval of the Proposed Project does not constitute denial of it. 7. Indemnity. Developer shall defend (with counsel approved by City, which such approval not to be unreasonably withheld), indemnify, and hold harmless the City, its officials, employees, volunteers and agents from and against any and all loss, liability, expenses, claims, costs (including reasonable attorneys fees), suits and damages of every kind, nature, and description, directly or indirectly arising from any third party legal challenge to the Project Approvals, or the implementation of this Agreement. Developer's indemnity obligations under this Section 7 shall survive the expiration or termination of this Agreement, but shall cease if the City denies Proposed Project. This Section 7 shall not apply to Developer's obligations regarding the PFFP, which shall be governed solely by Section 2(d). 8. Termination. Developer may terminate this Agreement by providing 10 days' written notice to City. If Developer is in default of any of its obligations under this Agreement and fails to cure such default within 10 days following written notice from City, then the City may terminate this Agreement by notice to Developer and, thereafter, City shall have no further obligation to process applications for the Proposed Project or to continue with negotiation and drafting of the proposed Development Agreement. Developer shall be responsible for the payment of Eligible Costs incurred by City up to and including the date of termination. 9. Cessation of Processing. Developer acknowledges and agrees that City may cease . processing the Proposed Project and all negotiations in connection with the proposed Development Agreement, if this Agreement is terminated by either party following notice and expiration of any applicable cure periods as provided herein, including Developers' non - payment of Eligible Costs. Developer further covenants and agrees that, if, as a result of termination of this Agreement, City ceases processing the Proposed Project applications, Developer shall not directly or indirectly initiate any litigation against City or its employees, agents, or volunteers for the failure to process or delay in processing such applications following such Agreement termination. 10. Attorneys Fees. If any legal action is brought by either party to interpret or enforce any terms or provisions of this Agreement, the prevailing party shall be entitled to its reasonable attorneys fees and costs. 11. Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to the matters set forth herein. Any amendments, modifications, or changes to this Agreement shall be in writing and signed by both parties. 12. Waivers. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver or a waiver of a subsequent breach of the same or any other provision of this Agreement. 13. Severability. If any provision of this Agreement or the application of any such provision shall be held by a court of competent jurisdiction to be invalid, void or unenforceable to any extent, the remaining provisions of this Agreement and the application thereof shall remain in full force and effect and shall not be affected, impaired or invalidated. 14. CEQA Processing Developer acknowledges and agrees that the City is the lead agency under CEQA, that the Stadium Area Master Plan EIR must reflect City's independent judgment and that City retains full discretion with respect to all findings to be made in connection therewith. 15. Successors and Assigns. This Agreement shall be binding upon the parties hereto and their respective heirs, legal representatives, successors and assigns. 16. Jurisdiction. This Agreement shall be administered and interpreted under the laws of the State of California, without regard to its choice of law rules. Jurisdiction and venue of litigation arising from this Agreement shall be in the County of Sonoma, State of California. 17. Notices. Notices required by this Agreement shall be personally delivered, mailed, postage prepaid, or mailed via nationally recognized overnight courier as follows: To the Developer: Redwood Equities, LLC P.O. Box 9069 Santa Rosa, CA 95405 Tel: (707) 481 -7801 Fax: (707) 527 -6.151 with a copy to: Anne E. Mudge Cox, Castle & Nicholson LLP 555 Montgomery Street, Suite 1500 San Francisco, CA 94111 Tel: (415) 392 -4200 Fax: (415) 392 -4250 To the City: City of Rohnert Park 6750 Commerce Blvd. Rohnert Park, CA 94928 Attn: City Manager Tel: (707) 588 -2223 Fax: (707) 588 -2274 with a copy to: McDonough Holland & Allen PC 1901 Harrison Street, 9th Floor Oakland, CA 94612 . Attn: Michelle Marchetta Kenyon Tel: (510) 273 -8780 Fax: (510) 839 -9104 Notices given by personal delivery shall be effective immediately. Notices given by overnight courier shall be effective upon the date of delivery. Notices given by mail shall be deemed to have been delivered five days after having been deposited in the United States mail. Any party may change its address for notice by written notice to the other party in the manner provided in this paragraph 17. 18. Interpretation. The titles to the sections of this Agreement are not a part of this Agreement and shall have no effect upon the construction or interpretation of any part of this Agreement. As used in this Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others where and when the context so dictates. The word "including" shall be construed as if followed by the words "without limitation." This Agreement is the product of negotiations among the parties, and it shall not be construed as if it had been prepared by one of the parties, but rather as if all of the parties have prepared the same. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting this Agreement. 19. Authority. Each person executing this Agreement covenants and warrants that (i) the party on whose behalf he or she is signing is duly incorporated or otherwise established or formed and validly existing under the laws of its state of incorporation, establishment or formation, (ii) the party has and is duly qualified to do business in California, (iii) the party has full corporate, partnership, trust, association or other power and authority to enter into this Agreement and to perform all of its obligations hereunder, and (iv) each person (and all of the persons if more than one signs) signing this Agreement is duly and validly authorized to do so. 20. Counterparts. This Agreement may be executed in counterparts. (REMAINDER OF PAGE INTENTIONALLY LEFT BLANK) W WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. CITY: CITY OF ROHNERT PARK, a municipal corporation Stephen Donley, City Manager Approved as to Form: McDonough Holland & Allen, PC City Attorney DEVELOPER: Redwood Equities, LLC, a California limited liability company By: Its: [TITLE]