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2006/01/10 City Council Resolution (21)RESOLUTION NO. 2006-23 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF ROHNERT PARK APPROVING A REIMBURSEMENT AGREEMENT WITH UNIVERSITY DISTRICT, LLC AND VAST OAK WHEREAS, the City has prepared a Public Facilities Finance Plan; and WHEREAS, the Public Facilities Finance Plan and Water Supply Assessment were necessitated in part by the University District Specific Plan; and WHEREAS, the University District developers have agreed to fund their fair share of the Public Facilities Finance Plan and Water Supply Assessment, including certain future amendments and legal costs. NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Rohnert Park that the City Manager is hereby authorized and directed to execute the attached agreement in substantially similar form, for and on behalf of the City of Rohnert Park, including authorization for staff to make minor adjustments in this agreement with City Attorney review and approval. DULY AND REGULARLY ADOPTED by the Council of the City of Rohnert Park this le day of January, 2006. ATTEST: CITY OF ROHNERT PARK Mayor Tim Smith BREEZE: AYE FLORES: AYE MACKENZIE: AYE VIDAK- MARTINEZ: AYE SMITH: AYE AYES: (5) NOES: (0) ABSENT: (0) ABSTAIN: (0) REIMBTRSEMENT AGREEMENT THIS REIMBURSEMENT AGREEMENT (the "Agreement ") is made and entered into as of the 10thday of January, 2006, by and among the CITY OF ROHNERT PARIS ( "City "), a municipal corporation, University District LLC, a Delaware limited liability company ( "UD LLC ") and Vast flak Properties, L.P., a limited partnership ( "Vast Oak "). UD LLC and Vast Oak are referred to collectively herein as "Developer." RECITALS: A. UD LLC and Vast flak have submitted applications for development of various aspects of the University District Specific Plan (UDSP) Project. The UDSP includes five subdivisions, including the University District LLC subdivision and the Vast flak subdivision. UD LLC and Vast Oak's proposed. projects (collectively, the "Proposed Project ") require or contemplate the following approvals and processing (collectively, "Project Approvals "): (1) University District General Plan Amendment; (2) University District Specific Plan; (3) Development Plans for the Vast Oak and University District LLC subdivisions (the "Development Plans "); (4) Subdivision maps for the Vast Oak and University District LLC subdivisions; (5) An EIR for the project described in the UDSP; (6) Any other approvals or processing reasonably necessary to develop the Vast Oak and/or University District LLC subdivisions. Development Plans, subdivision maps, and any ether approvals reasonably necessary to develop the Proposed Project are collectively referred to as "Project Approvals "; B. In addition to the Project Approvals, the Proposed Project, along with ether concurrent and future development projects within the City, required the preparation and approval of the Public Facilities Financing Plan existing on the date of this Agreement (. "PFFP ") and Water Supply Assessment existing on the date of this Agreement(" WS A "). The City is currently processing an update to the PFFP (the "2005 -2006 PFFP Update "). C. UD LLC and Vast Oak also desire to enter into one or more development agreements ( "Development Agreements ") with the City setting forth Developer's respective rights and obligations in connection with the Proposed Project. D. Implementation of the Proposed Project, the processing of the Project Approvals, preparation and approval of the WSA and PFFP and any updates, and negotiating and drafting of the Development Agreements will require City to incur various cosh and expenses including staff processing, consultant costs, and attorneys fees and casts. 8637030 8007810016 E. In order to facilitate processing of the Project .Approvals and preparation and approval of the WSA and PFFP and any updates, and to induce City to commence negotiation and drafting of the Development Agreements, Developer desires to reimburse City for certain Eligible Costs to be incurred by City in connection with the Proposed Project, as set forth herein. AGREEMENT: In consideration of the foregoing recitals and for other good and valuable consideration, the parties hereby agree as follows: 1. Pufpose of Agreement. The purpose of this Agreement is to provide for payment by Developer of all Eligible Costs (defined below) directly or indirectly incurred by City in connection with the Proposed Project. 2. Developer Reimbursement _Obligation. Developer shall reimburse the City for the following costs (collectively, the "Eligible Costs ") incurred in connection with the Proposed Project: (i) City staff time, processing costs, consultant fees and attorney fees associated with all Project .Approvals, including attorneys fees and costs incurred in connection with the legal defense of any Project Approvals; (ii) attorneys" fees and legal costs payable to City's legal counsel in connection with the negotiation, drafting, implementation and legal defense of the proposed Development Agreements; (iii) fees and costs payable to such financial consultants /real estate economists, as City may retain in connection with the negotiation of the proposed Development Agreements, provided, however, Developer's obligation to pay such financial /economic analysis related costs under this clause (iii) shall not exceed Forty Thousand Dollars ($40,000), unless Developer has first approved in its reasonable discretion the scope of any financial analysis work in excess of such amount; and (iv) with respect to the SA: (a) 20% of the consultant costs and attorneys fees incurred on or before January 25, 2005, by City in connection with preparation and adoption of the SA; (b) 33% of the consultant costs and attorneys fees incurred after January 25, 2005, by City in connection with preparation, adoption, or legal defense of third party challenges to the WSA; and (c) 33% of the consultant costs and attorneys fees incurred after January 25, 2005, by City in connection with the readoption of the Water Supply Assessment in response to any final 863703v3 80078 /0016 court judgment or writ issued as a result of a third party challenge, provided that readoption is for the same projects addressed in the WSA. If the Water Supply Assessment proposed for readoption is not for the same projects as the current WSA, then Developer will pay the University District Specific Plan's fair share of such readoption costs if readoption of the Water Supply Assessment is a legal prerequisite for reapproval of the University District Specific Plan; ' f is fer the t ,Pltm; or University District LLC's and Vast Oak's fair share of such readoption costs if reapproval of the Water Supply Assessment is necessary for any Project Approvals. :1 ) - 1) 5 (v) with respect to the PFFP: (a) 20% of the consultant costs and attorneys fees incurred on or before July 1, 2004, by City in connection with preparation and approval of the PFFP; (b) 33°x© of the consultant costs and attorney fees incurred after July 1, 2004, by City in connection with the preparation, approval, or legal defense of third party challenges to the PFFP or 2005 -2006 PFFP Update; and (c) 33% of the consultant costs and attorneys fees incurred after July 1, 2004, by City in connection with reapproval of the PFFP or reapproval of the 2005 -2006 PFFP Update, if prepared in response to any final court judgment or writ issued as a result of a third party challenge, and provided that reapproval is for the same projects addressed in the current PFFP or the 2005 -2006 PFFP Update. If the Public Facilities Financing Plan proposed for reapproval is not for the same projects as the current PFFP or the 2005 -2006 PFFP Update, then Developer will pay the University District Specific Plan's fair share of such reapproval costs if reapproval of the Public Facilities Financing Plan is reasonably necessary for reapproval of the University District Specific Plan, or University District L,LC's and Vast Oak's fair share of such reapproval costs if reapproval of the Public Facilities Financing Plan is reasonably necessary for any Project Approvals. (vi) The percentage allocations in any subparagraph of sections 2(iv) or 2(v) 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. (vii) City shall not be obligated to incur any such Eligible Costs if Developer fails to timely reimburse City as provided in Section 3 below. The parties agree that the Development Agreements, if approved, will provide a mechanism for potential reimbursement of a pro rata portion of the costs allocable to preparation of the University :District Specific Plan and EIR from other property owners within the University District Specific Plan area as such other properties are developed. 8637030 80078/0016 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. 4. Post - 2005 -2006 PFFP Updates. Any revisions to the PFFP processed or adopted after adoption of the 2005 -2006 PFFP Update shall include in the fees to be charged consultant costs and attorneys fees incurred by City, and so Developer shall not be obligated to pay such costs except in connection with payment of fees pursuant to such revisions to the PFFP. Developer shall not be obligated for any costs associated with amendments to, or reapproval of, a Water Supply Assessment that is not required for approval of the University District Specific Plan or any Project Level Approvals. 5. Deposit. Upon execution of this Agreement, Developer shall deposit with City the suns 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. In the event the City has withdrawn 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 full amount of $50,000. In the event this Agreement is terminated as provided in Section S 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. b. 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 Agreements. Developers acknowledge and agree 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 Agreements. Developers agrees that they 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 either or both of the proposed Development Agreements. 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 Proposed Project or the implementation of this Agreement. Developer's indemnity obligations under this Section 7 shall survive the expiration or termination of this Agreement, but cease in the event City denies the Proposed. Project. ME 8637030 80078/0016 s. 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 Agreements. 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 Agreements, 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. Developers 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 EIP. 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 Ass ns. 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. -5- 8637030 80078/0016 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: University District LLC c/o Brookfield Homes 500 La Gonda way, Suite 100 Danville, CA 94526 Attn: Kevin Pohlson Tel: (925) 743 -8000 Fax: (925) 743 -8050 and: Vast Oak Properties L.P. c/o Quaker Hill Development Corporation P.O. Box 2240 Healdsburg, CA 95448 Attn: Craig Harrington Tel: (707) 431-1780 Fax: (707) 431-9577 with a copy to: Bingham McCutchen LLP 1333 N. California Blvd., Suite 210 Walnut Creek, CA 94596 -1270 Attn: Cecily Talbert, Esq. Tel: (925) 975 -5390 Fax: (925) 975 -5339 To the City: City of Rohnert Park 6750 Commerce Blvd. Rohnert Parr, 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, Esq. 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 ether party in the manner provided in this paragraph 17. M 8637030 8007810016 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. 21. Joint and Several. LTD LLC and Vast Oak shall be jointly and severally liable for all obligations of Developer hereunder. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. LTD LLC: UNIVERSITY DISTRICT LLC, a Delaware limited liabll ompany CITY. CITY OF ROHNERT PARK, a zuicipal M Stephen Donley, City Manager Per Reso. No. 2006 -23 adopted by the Rohnert Park City Council on 1/10%06. 8637030 80078/0016 VAST OAK: VAST OAK PROPERTIES, L.P., a limited partnership l:] Its: =11-��� Approved as to Form: ough Holland & Allen, PC itylAttorney M 8637030 80078/0016