2014/11/25 City Council Resolution 2014-160RESOLUTION NO. 2014 -160
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT
PARK AUTHORIZING THE CALIFORNIA STATEWIDE COMMUNITIES
DEVELOPMENT AUTHORITY (THE "AUTHORITY ") TO FORM A
COMMUNITY FACILITIES DISTRICT WITHIN THE TERRITORIAL
LIMITS OF THE CITY OF ROHNERT PARK AND RELATED MATTERS
WHEREAS, the City of Rohnert Park (the "City ") is a municipal corporation
duly organized and existing under and by virtue of the laws of the State of California (the
"State "); and
WHEREAS, the California Statewide Communities Development Authority (the
"Authority ") is a California joint- exercise of powers authority lawfully formed and operating
within the State pursuant to an agreement (the "Joint Powers Agreement ") entered into as of June
1, 1988 under the authority of Title 1, Division 7, Chapter 5 (commencing with Section 6500) of
the California Government Code; and
WHEREAS, the City is a party to the Joint Powers Agreement and by virtue
thereof a member (a "Program Participant ") of the Authority; and
WHEREAS, the Joint Powers Agreement was entered into to establish the
Authority as an agency authorized to issue bonds to finance projects within the territorial limits
of its Program Participants; and
WHEREAS, the Joint Powers Agreement authorizes the Authority to undertake
financing programs under any applicable provisions of State law to promote economic development,
the stimulation of economic activity, and the increase of the tax base within the jurisdictional
boundaries of its Program Participants; and
WHEREAS, the "Mello -Roos Community Facilities Act of 1982," being Chapter
2.5, Part 1, Division 2, Title 5 (beginning with Section 53311) of the Government Code of the
State (the "Act ") is an applicable provision of State law available to, among other things, finance
public improvements necessary to meet increased demands placed upon local agencies as a result
of development; and
WHEREAS, there is a development project in the City owned by Vast Oak
Properties L.P., a California limited partnership, and University District LLC, a Delaware limited
liability company (respectively, the 'Development Project" and the "Developer "); and
WHEREAS, the City and the Developer have entered into an Amended and
Restated Development Agreement dated April 22, 2014, which, among other things, allows
Developer at its sole discretion to elect to form a community facilities district through the
Authority so long as the Authority establishes the community facilities district in accordance
with the City's goals and polices as set forth in its Resolution 2006 -076 (attached as Exhibit A)
2014 -160
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and such that its terms are in compliance with Section 4.04 of the Amended and Restated
Development Agreement (attached as Exhibit B); and
WHEREAS, the Developer has exercised its sole discretion and wishes to form
the community facilities through the Authority and City respects this discretion, as outlined in
the Amended and Restated Development Agreement; and
WHEREAS, the Development Project will promote economic development, the
stimulation of economic activity, and the increase of the tax base within the City; and
WHERAS, both the Authority and the City are "local agencies" under the Act; and
WHEREAS, the Act permits two or more local agencies to enter into a joint
community facilities agreement to exercise any power authorized by the Act; and
WHEREAS, entering into such an agreement with the Authority to authorize the
Authority to form a community facilities district within the territorial limits of the City to finance
public improvements and fees required of the Development Project is consistent with the City's
commitments in the Amended and Restated Development Agreement; and
WHEREAS, a form of Funding, Acquisition, Improvement and Public Facilities
Fee Credit Agreement (the "Acquisition Agreement ") between the City, the Authority and the
Developer has been presented to the City Council, as Exhibit C, and is on file with the City Clerk;
and
WHEREAS, nothing herein constitutes the City's approval of any applications,
Development Project entitlements and /or permits, and such, to the extent required in the future,
are subject to and contingent upon City Council approval following, to the extent applicable,
environmental review in compliance with the California Environmental Quality Act ( "CEQA ");
and
WHEREAS, nothing herein affects, without limitation, requirements for and /or
compliance with any and all applicable and /or necessary improvement standards, land use
requirements or subdivision requirements relating to the Development Project or any portion
thereof, which obligations are and shall remain independent and subsisting; and
WHEREAS, the City Council is fully advised in this matter;
NOW THEREFORE, BE IT RESOLVED, by the City Council of the City of
Rohnert Park that it does hereby find, determine, declare and resolve as follows:
Section 1. The City hereby specifically finds and declares that the actions
authorized hereby constitute and are with respect to municipal affairs of the City and the
statements, findings and determinations of the City set forth in the recitals above and in the
preambles of the documents approved herein are true and correct and material to the adoption of
this resolution.
2014 -160
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Section 2. This resolution shall constitute full "local approval," under Section 9
of the Joint Powers Agreement, for the Authority to undertake and conduct proceedings in
accordance herewith and under the Act to form a community facilities district (the "Community
Facilities District ") with boundaries substantially as shown on Exhibit D, attached hereto and
incorporated by this reference, and to authorize a special tax and to issue bonds with respect
thereto.
Section 3. The Joint Powers Agreement, together with the terms and provisions
of this resolution, shall together constitute a joint community facilities agreement between the
City and the Authority under the Act, as, without this resolution, the Authority has no power to
conduct proceedings under the Act to form the Community Facilities District. Adoption by the
Commission of the Authority of the Resolution of Intention to form the Community
Facilities under the Act shall constitute acceptance of the terms hereof by the Authority.
Section 4. This resolution and the agreement it embodies are determined to be
beneficial to the residents of the City, and of the future residents of the area within the Community
Facilities District.
Section 5. The City has adopted Local Goals and Policies as required by Section
53312.7 of the Act. The Amended and Restated Development Agreement requires the use of the
City's Local Goals and Policies, as outlined in Resolution 2006 -276 and attached as Exhibit A, in
connection with the formation and administration of any Community Facilities District. The City
hereby agrees that the Authority may act in lieu of the City under those Local Goals and Policies in
forming and administering the Community Facilities District. The City also agrees that in lieu of the
letter of credit described under Section 2 of the Local Goals and Policies, and unless specifically
modified by Council Resolution, for the first bond issue, the Authority will require:
• A value to lien (VTL) ratio of not less than 5:1 on undeveloped property
• At least 2 years of capitalized interest
• A reserve fund equivalent to the Internal Revenue Code maximum
For any subsequent bond issues, the City Manager and staff from the Authority may agree upon
alternative bond security measures provided that in no case shall bond security be less than is required
by the Act.
The Authority also agrees that with respect to all matters other than the letter of credit described under
Section 2 of the Local Goals and Policies, that it will comply strictly with the City's Local Goals and
Policies as outlined in Resolution 2006 -276 in forming and administering the Community Facilities
District and in the issuance of bonds and that no waiver or exception to any of those Local Goals and
Policies will be approved without prior written consent of the City.
Section 6. Pursuant to the Act and this resolution, the Authority may conduct
proceedings under the Act to form the Community Facilities District and to have it authorize the
financing of the facilities and fees set forth on Exhibit E, attached hereto and incorporated by this
reference, with first priority given to retiring the lien established by the City's Assessment District
2005 -01. All of the facilities whether to be financed directly or through fees are facilities that have an
2014 -160
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expected useful life of five years or longer and are facilities that the City is authorized by law to
construct, own or operate or to which they may contribute revenue. The facilities are referred to herein
as the " hmprovements" and the Improvements to be owned by the City are referred to as the "City
Improvements ". The fees are referred to as the "Fees" and the Fees paid or to be paid to the City are
referred to as the "City Fees ".
Section 7. The City Council certifies to the Commission of the Authority that all
of the City Improvements including the improvements to be constructed or acquired with the
proceeds of City Fees are necessary to meet increased demands placed upon the City of Rohnert
Park as a result of development occurring or expected to occur within the Community Facilities
District.
Section 8. The Authority will apply the special tax collections initially as
required by the documents under which any bonds are issued; and thereafter to the extent not
provided in the bond documents, may pay its own reasonable administrative costs incurred in the
administration of the Communities Facility District. The Authority will remit any special
revenues remaining after the final retirement of all bonds to the City. The City will apply such
special Wrevenues it receives for authorized City Improvements or City Fees and its own
administrative costs only as permitted by the Act. The City and the Authority acknowledge that
nothing in this Resolution prevents the City from recovering its costs associated with supporting the
formation of the community facilities district and /or the review, permitting, inspection, acquisition audit
and acquisition of City Improvements and /or the administration of the City's fee programs through
means other than the collection of special taxes.
Section 9. The Authority will administer the Community Facilities District,
including employing and paying all consultants; annually levying the special tax and all aspects of
paying and administering the bonds, and complying with all State and Federal requirements
appertaining to the proceedings including the requirements of the United States Internal
Revenue Code. The City will cooperate in a commercially reasonable manner with the Authority in
respect to the requirements of the Internal Revenue Code as related to the City Improvements and City
Fees, and to the extent information is required of the City to enable the Authority to perform its
disclosure and continuing disclosure obligations with respect to the bonds, although the City
will not participate in nor be considered to be a participant in the proceedings respecting the
Community Facilities District (other than as a party to the agreement embodied by this Resolution)
nor will the City be or be considered to be an issuer of the bonds.
Section 10. In the event the Authority completes issuance and sale of bonds,
and bond proceeds are available to finance the Improvements, the Authority shall establish and
maintain a fund to be known as the "City of Rohnert Park University Park Community Facilities
District Acquisition and Construction Fund" (the "Acquisition and Construction Fund "). The portion
of the bond proceeds which is intended to be utilized to finance the Improvements and Fees shall be
deposited in the Acquisition and Construction Fund. The Acquisition and Construction Fund will be
available both for the City Improvements and City Fees. As described in Section 6, first priority for
bond proceeds deposited in the Acquisition and Construction Fund will be retiring the lien established
by the City's Assessment District 2005 -01.
2014 -160
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Section 11. As respects the Authority, the City agrees to fully administer, and to
take full governmental responsibility for the acquisition of the City Improvements and for the
administration and expenditure of the City Fees including but not limited to environmental
review, approval of plans and specifications, bid requirements, performance and payment bond
requirements, insurance requirements, contract and construction administration, staking,
inspection, acquisition of necessary property interests in real or personal property, the holding
back and administration of retention payments, punch list administration, and the Authority shall
have no responsibility in that regard. The City reserves the right, as respects the Developer, to
require the Developer to contract with the City to assume any portion or all of this responsibility.
As described in Section 8, the City reserves the right to collect its reasonable costs for all activities,
including consultant costs and administrative costs, through means available to it including but not
limited to those described in the Amended and Restated Development Agreement.
Section 12. The City agrees to indemnify and to hold the Authority, its other
members and its other members' officers, agents and employees, and the other local agencies, and their
offices, agencies and employees (collectively the "Indemnified Parties ") harmless from any and all
claims, suits and damages (including costs and reasonable attorney's fees) arising out of the design,
engineering, construction and installation of the City Improvements and the improvements to be
financed or acquired with City Fees. The City reserves the right, as respects the Developer, to require
the Developer to assume by contract with the City any portion or all of this responsibility. Consistent
with the requirements of Section 4.04 of the Amended and Restated Development Agreement,
Developer is obligated to and has agreed to assume all of this responsibility pursuant to the concurrent
execution of the Acquisition Agreement, which is more specifically described in Paragraph 15.
Section 13. As respects the Authority, the City agrees that - once it determines
that the City Improvements are constructed according to the approved plans and specifications, and
the City and the Developer have put in place their agreed u p o n arrangements for the funding of
maintenance of the City Improvements — City will accept ownership of the City Improvements, take
maintenance responsibility for the City Improvements and indemnify and hold harmless the
Indemnified Parties to the extent provided in the preceding paragraph from any and all claims
etc., arising out of the use and maintenance of the City Improvements. The City reserves the
right, as respects the Developer, to require the Developer by contract with the City to assume any
portion or all of this responsibility. Consistent with the requirements of Section 4.04 of the Amended
and Restated Development Agreement, Developer is obligated to and has agreed to assume all of this
responsibility pursuant to the concurrent execution of the Acquisition Agreement, which is more
specifically described in Paragraph 15.
Section 14. The City acknowledges the requirement of the Act that if the City
Improvements are not completed prior to the adoption, by the Authority Commission, of the
Resolution of Formation of the Community Facilities District, the City Improvements must be
constructed as if they had been constructed under the direction and supervision, or under the
authority of, the City. The City acknowledges that this means all City Improvements must be
constructed under contracts that require the payment of prevailing wages as required by Section
1720 and following of the Labor Code of the State of California. The Authority makes no
representation that this requirement is the only applicable legal requirement in this regard. The
City reserves the right, as respects the Developer to assign appropriate responsibility for
2014 -160
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compliance with this paragraph to the Developer. Consistent with the requirements of Section
4.04 of the Amended and Restated Development Agreement, Developer is obligated to and has
agreed to assume all of this responsibility pursuant to the concurrent execution of the Acquisition
Agreement, which is more specifically described in Paragraph 15.
Section 15. The form of the Acquisition Agreement, attached as Exhibit C and
incorporated by this reference, is hereby approved, and the City Manager or such officer's designee
(the "City Manager ") is authorized to execute, and deliver to the Developer and the Authority, the
Acquisition Agreement on behalf of the City in substantially similar form, with such changes as
shall be approved by the City Manager after consultation with the City Attorney and the
Authority's bond counsel, such approval to be conclusively evidenced by the execution and
delivery thereof.
Section 16. After completion of the City Improvements and appropriate
arrangements for the maintenance of the City Improvements, or any discrete portion thereof as
provided in Section 53313.51 of the Act and in the Acquisition Agreement, to the satisfaction of
the City, and in conjunction with the City's acceptance thereof, acquisition of the City Improvements
shall be undertaken as provided in the Acquisition Agreement.
Section 17. The City hereby consents to the formation of the Community Facilities
District in accordance with this Resolution and consents to the assumption of jurisdiction by the
Authority for the proceedings respecting the Community Facilities District with the understanding
that the Authority will hereafter take each and every step required for or suitable for consummation
of the proceedings, the levy, collection and enforcement of the special tax, and the issuance, sale,
delivery and administration of the bonds, all at no cost to the City and without binding or obligating
the City's general fund or taxing authority.
Section 18. The terms of the Agreement embodied by this Resolution may be
amended by a writing duly authorized, executed and delivered by the City and the Authority,
except that no amendment may be made after the issuance of the bonds by the Authority that
would be detrimental to the interests of the bondholders without complying with all of the
bondholder consent provisions for the amendment of the bond resolutions, bond indentures or like
instruments governing the issuance, delivery and administration of all outstanding bonds.
Section 19. Except to the extent of the City's agreement to take responsibility for the
ownership of the City Improvements, no person or entity, including the Developer shall be deemed to
be a third party beneficiary of this Resolution, and nothing in this resolution (either express or
implied) is intended to confer upon any person or entity other than the Authority and the City (and
their respective successors and assigns) any rights, remedies, obligations or liabilities under or by
reason of this Resolution.
Section 20. This Resolution shall remain in force until all bonds have been
retired and the authority to levy the special tax conferred by the Community Facilities District
proceedings has ended or is otherwise terminated.
Section 21. The City Council hereby authorizes and directs the City Manager and
other appropriate City staff to cooperate with the Authority and its consultants and to do all things
2014 -160
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reasonably necessary and appropriate to carry out the intent of this Resolution and the Community
Facilities District financing, to execute any and all certificates and documents in connection with the
bond issuance and to execute any and all Acquisition Agreements, as shall be approved by the City
Manager after consultation with the City Attorney and the Authority's bond counsel.
Section 22. The City Council hereby approves delivery of a certified copy of this
Resolution to the Authority.
Section 23. This Resolution shall take effect upon its adoption.
DULY AND REGULARLY ADOPTED this 25th day of November, 2014.
ATTEST:
VAnne M. Buergler, City C' rk
CITY OF ROHNERT PARK
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2014 -160
(7)
RESOLUTION NO. 2006-27e
A RESOLUTION OF'THE CITY COTJNCIL OF THE CITY OF ROHNERT PARI(
APPROVING A
STATEMENT OF'LOCAI GOALS A¡{D POLICIES CONCERNING TIIE USE OF'TTIE
MELLO.ROOS COMMUNITY FACILITIES ACT OF 1982
wrrEREAS, pursuant to section 5 3312.7 of the california Govemment code a local
agency may initiate proceedings to establish a Community Facilities Dishict (CFD) only if it hasfirst considered and adopted Iocal Goals and policies conceming the use of ihe Mello-i.oos
Community Facilities Act of 1982; and
wrrEREAS, a cFD is one of three (3) approved principal financing mechanisms utilizedin the City of Rohnert Park's Public Facilities Finance plin; and
WHEREAS' the city of Rohnert park (city) has agreed to use its best effort to adoptLocal Goals and Policies within ninety (90) days following the Effective Date of the city's
Development Agreement with the university District LLC and vast oak properties L.p; and
WHEREAS, the Local Goals and Policies are designed to ensure that CFDS created are
made for the public good and compry with all rerevant rawJ, acts una ugr"",n"r,tr; -J
--
WHEREAS, the Goals and poricies may be amended or suppremented by city councilresolution at any time, and approval does not obligate the city council in any wãy to create
CFDs if they meet fhe parameters set lorth; and
BE IT RESoLVED by the city councir of rhe city of Rohnert pa.rk that ir does hereby
authorize and approve The city of Rohnert park statement oflocal Goals and policies
concerning the use of the Mello-Roos community Facilities Act of lgg2,as outlined in Exhibit"4" attached.
DULY AND REGULARLY ADOPTED this 28trr day of Noveuber , 20e6
ATTEST:
Mayor Tim Snirh
CITYOFROHNERT PARK
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EXIIIBIT "A"
CITY OF ROHNERT PARK
STATEMENT OF LOCAL GOÄLS AND POLICIES
CONCERNING THE USE OFTHE
MELLO-ROOS COMMU¡ÍITY FACILITIES ACT OF T982
Pursuant to Section 53312.7 of lhe Califomía Govemment Code, the City Council of Rohnert park
(hereafter the "City Council') hereby states its goals and poticies conceming the use of the Mello-
Roos Communit¡r Facilities Act of 1982, Section 53311, et seq. of the Califomia Government Code
lhereafter the 'Acf'), in providing adequate public infi:astructure improvements for the city of
Rohnert Park (the "Ci$') and in refunding existing debt on land within the City. In addition, the Act
may be used to provide for the maintenance, repair, reconstruotion and replacer.nent of any of the
foregoing infrastructure improvements. The following goals and policies shall apply to each
community facilities district (a "CFD") hereafter formed by the City.
Any policy or goal stated herein may be supplemented or amended or deviated from, and new goals
and policies may be added hereto, from time to time upon a determination by the City Council that
such supplement, amendment, deviation or addition is necessary or desirable. Any policy or goal
stated herein shall be deemed amended or supplemented in the event, and as ofthe date, ifeve¡ that
such amendment or supplement is required to ensure compliance with:
a. Development Agreements entered into or amended by the city in accordance with. Govemment Code Section 65864 et. seq.;
b. The Act;
c. Any other lar s offhe State ofCalifornia; or
d. Laws of the United States of America.
1. Priority for Financing Yarious Kinds ofPublic Facilities Through the use of the Act.
It is the policy of the city to give priority to the financing, through the use of the Act, as lollows:
a) Refinancing of pre-existing assessment liens and refunding of any bonds secured by said
liens as these may affect land within the CFD;
b) Financing ofthe design, construction and/or acquisition of public infrastructure identified in
the city's Public Facilities Finance Plan (PFFp) as it mây be amended from time to timq as
such inûastructure rnitigates impacts caused by development occurring within the CFD, and
to the exlent that such inû:astructure may lawfully be financed under the Act; and
c) Financing of the design, construction and/or acquisition of other public in&astructure
improvønents directly benefiting the city, which improvements may include, but are not
limited to, in-traik improvements, park improvønents, storm drainage improvements, public
roadways and sidewalks.
It is also the policy ofthe City to assist in the financing of the design, construction and/or acquisition
ofother public facilities, through the use ofJoint Public Facilities Financing Agreements, when to do
so will, in the sole discretion of the City Council acting as the legislative body of the affected CFD,
rêsult in a savings to residents or Foperty owners, for ixample, ùy reducing Losts of bond issuance
Rohr¡ert Park Goals & Polic¡es 10_27_06
and/or administr¿tive expenses. Such joìnt financing assistance shall be considered when jt does not
interfe¡e with the financing of public infrastructure improvements directty benefiting the city.
2. Credit Quality Required ofBond Issues, Including Criteria in Evaluating the Credit Quality.
It is the policy ofthe City that prior to the issuance ofany CFD bonds, the following conditions shall
be met:
a) Maximum special tax ievenues from the CFD are reasonably expected to provide at least one
hundred ten percent (110%) debt service coverage for each year ofthe term ofsuch bonds;
b) The bond issuaûce document establishes, and includes a covenant to cause special taxes to be
levied in an amount sufficient to maintain, for the te¡m of such bonds an adequately firnded
reserve fund securing such bonds in accordance with the regulations of the l¡temal Revenue
Service (IRS).
In addition, in cases when development interests (Proponents) petition for CFD formation, the City
may require that Proponents provide a letter ofcredit or other credit enhancement instrument in form
and amount reasonably satisfactory to the City which is sufficient to ensure payment ofthe principal
and inteiest payments on the cFD bonds for up to two (2) years following issuance theråof
(computed without regard for the availability of capitalized interest or amounts on deposit ina debt
service reserve fund).
Further, it is the policy of the City to comply with all provisions of the Act including, but not limited
to, Section 53345.8, as such Section may be amended ffom time to time.
3. steps to Ensure that Prospective Property Purchasers Are Fully rnformed.A,bout Their
Taxpaying Obligations.
It ii ìhe goal of the City that the CFD Proponents provide actual and conspicuous ngtice to all
potential homeowners, taxpayers residing within, or taxpayers owning properfy within, the
bounda¡ies ofa CFD.
ln order to comply with this goal, it is the policy of the City that:
a) All notices provided by the CFD Propo¡ents shall be in compliance with applicable legal
requirements, including, without limitation, applicable provisions of Government code
Section 53341.5;
b) The form ofsuch notice shall be acceptable to the City and shall at a minimum provide a
comprehensive listing of all the fees, taxes and assessments to be charged to any and all
owners ofproperty within the CFD;
c) The proposed forrn of such notice shall be submitted to the City, for review, at the same time
that petitions requesting formation ofthe CFD a¡e submitted; and
d) The Pr.oponents shall make revisions to the proposed form of notice as requested by the City;
It is the policy of the City to refrain from the issuance of any CFD bonds until the aforementioned
notice is approved.
It is firther the policy ofthe City that:
Rohnert Park coals & Polides I O-Zz-Oé
a) In conformance with the Act, the Proponents shall provide potential property owners with a
written and itemized notice of such projected costs and the mannei in which thev wiÌì be
charged, which notice the potential propert¡r owner will sign;
b) The Proponents shall provide a copy òf each signed notice to the city,s community
Development Director;
c) The Proponents shall retain a copy ofsuch notice in Proponents' files for at least fifteen (15)
years following the date ofsuch notice.
It is further the policy of the City to provide Section 53340.2 notice of special tax to any individual
rèquesting such hotice or any owner ofproþerty subject to a special tax leiied by the City within five
(5) working days ofreceivìng a request fo¡ such notice.
4. Criteria for Evaluating the Equity of Tax Allocation Formulas, and Concerning Desirable
and Maximum Amounts of Special Tax-
It is the þoal of the City that each taxpayer residing within, or owning property within, the boundariesof any cFD hereafter established by the city pay special øxes which generally reflect such
taxpayer's fair and reasonable share of his or her projected benefit from, uni,¡o. b..id".r upon, thefaciliúes to be constructed and./or maintained or ofány refunding of existing debt \Ã,ithin the'CFD by
such CFD.
It.is the goal of the Çi.tf that maximum special taxes on residential owner-occupied p¡opety, v/hen
taken together with (a) ad valorem taxes, (b) all other special taxes levied pursuant io the Act and(c) all assessments applicable to such property, do not exceed in any year l.isy, of the greater ofthe
parcel'S assessed value or a ¡easonable estimate ofthe sale price for the parcel and the iesidential or
commercial unit to be constructed thereon-
Iri order to.comply with this goal and when the Proponent requests that a "reasonable estimate" be
used to calculate the maximum allowable special tax it is the policy of the city that:
a) At least 120 days priorlo the anticipated election date, as defined in the Act, the proponent,
at its cost, shall submit its methoá of estimating value for approval by the City;
b) At least 100 days prior to the anticipated election date, the City shall provide the proponent
with requested changes to said method; and
c) At least 30 days prior to the anticipated election date, the Proponent, at its cost, shall provide
the City with the estimated values to be used in making ìhe final determinatior of the
maximum special tax.
It is the policy of the City to refrain from the issuance of any CFD bonds until the afo¡ementioned
appraisal process is satisfactorily completed
It is fi¡rther the policy of the City that the rate method of apportionment for special tax levíed
pursuant to the Act be drafted to allow a property owner to permanently satisfu thé special tax (and
remove the lien thereof) as to any taxable parcel by prepayment pursuant to Section 53344 of theAct.
It is further the policy of the Cìty not to permit the escalation of.maximum taxes.
Rohnel Pdk Goals & Policies 10_2?_06
5. Definitions, standards, and Assumptions for Appraisals Required by section 53345.g.
It is the goal of the City to conform, as nearly as practicable,.to the Califomia Debt and Investment
Advisory Commission's Appraisal Standards for Land-secured Financings, as such standards may be
amended from time to time, provided, however, that the City Council may additionally amend such
standards from time to time as it deems necessary and reasonable, in its own discretion, to provide
needed infrastructure improvements within the City, while still accomplishing the goals set forth
herein.
6. Standard for Advance ofExpenses; Reimbursement.
It is the policy of the Ciry that the Proponents of the CFD shall advance to the City actual out of
pocket costs of formation of the CFD, sale of CFD bonds, and other costs and expenses associated
with the CFD ("Advanced Costs"). Such Advanced Costs may include, without limitation, legal,
financial, appraisal and engineering costs and expenses associated v/ith:
a) Formation oflthe CFD;
b) Determination ofthe rate and method ofapportionment and lely ofthe special tax;
c) Review and approval ofthe plans and specifications for construction ofthe ímprovements;
d) Determination of the value of the property;
e) Sale ofCFD bonds; and
f) Any other cosls or expenses reasonably incurred in connection with the CFD.
It is fi¡rther the policy of the City that all such Advanced Costs, together with those reasonable out-
of-pocket legal, engineeiing, and financial services costs incurred by Proponent directly related to
establishment and implementation of the CFD, which may lawfirlly be financed under the Mello-
Roos Act and other applicable law, shall be reimbursed ûom proceeds ofthe sale of CED bonds in
accordance with the provisions of the Reimbu¡sement Agreement described below. However, in the
event that the City is unable tó make legally required findings in connection with the formation of
the CFD and the issuance of CFD bonds for any reason, the City shall not be liable for any costs
incurred by Proponents.
It is the policy of the city that when the proceeds of cFD bonds will be used for either
reimbursement ofcosts i¡curred by Proponents or acquisition of facilities constructed by Proponents
that City and Proponents will enter into a either a Reimbursement or Fundirig and Acquisition
Agreement, The form of said agreernents shall be reasonably acceptable to the City,s bondiounsel
setting forth, among other things, the procedures for and mechanisms by which ?ioponents will be
reimbursed, out of available proceeds of the CFD bonds, for improvements construcìed and/or paid
for by Proponents.
7. Issuance of Bonds
It is the goal of the City that the amounts, timing and terms of the issuance and sale of the CFD
bonds shall be coordinated, as closely as possible, with the phasing of the development of the
property to provide financing for the improvements in a timely fashion to meet the needs of the
respective phases of development ofthe project. Ifnecessary, the CFD bonds may be issued in series
to help correspond to such phases. The amounts, timing and te¡ms of the issuance and sale of the
Rohnef Park Goâls & Policies 10_27_06
CFD bonds shall be dete¡mined by the City, in consultation with the Developer, and the Ci{y's bond
counsel, {inancial advisors anlor underwriters.
It is the policy of the City that the Proponents shall commit in wriling at least 30 days before the
election date to the following:
a) To assist the City in the issuance of the CFD bonds by providing financial and development
information reasonably required for due-dìligence and disclosures relating to the issuance of
the CFD bonds;
b) To provide for any required continuing disclosures under applicable securities laws.
Rohnen Palk Goab & Policies 10_r_06
OAK #4820-4798-3630 v1
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Rohnert Park
130 Avram Avenue
Rohnert Park, California 94928-2486
Attention: City Clerk
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(Space Above This Line for Recorder's Use Only)
Exempt from recording fee per Gov. Code § 27383.
FUNDING, ACQUISITION, IMPROVEMENT AND PUBLIC FACILITIES FEE CREDIT
AGREEMENT
BY AND BETWEEN
THE CITY OF ROHNERT PARK
AND
THE CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY
AND
UNIVERSITY DISTRICT LLC
AND
VAST OAK PROPERTIES L.P.
THIS FUNDING, ACQUISITION, IMPROVEMENT AND PUBLIC FACILITEIS FEE
CREDIT AGEEMENT ("Agreement") is made and entered into on this ______ day of ______________
201____ ("Effective Date") among University District LLC and Vast Oak Properties L.P, ("Developer"),
the Ca lifornia Statewide Communities Development Authority (“Authority”) and the CITY OF
ROHNERT PARK, a California municipal corporation ("City").
RECITALS
A. On April 22, 2014, the City Council of the City of Rohnert Park adopted Ordinance 878
approving a Develop ment Agreement (“Development Agreement”) between the City of Rohnert Park,
and the Developer.
B. The Development Agreement provides that the Developer, at its sole discretion, may elect to form
a Community Facilities District (“CFD”) through the Association of Bay Area Governments or the
Authority provided certain conditions are met.
C. The Developer has applied to the Authority for the financing of certain public capital
improvements, and certain governmentally-imposed development fees (collectively, the “Acquisition
Improvements”). The fees will themselves finance public capital improvements. The public capital
Acquisition Improvements are to be owned and operated by the City, and the financing is to be
accomplished through a CFD which will be administered by the Authority under and pursuant to the
Mello-Roos Community Facilities Act of 1982 – California Government Code Sections 53311 and
following (the “Act”).
Exhibit C to Resolution
2
D. On the 25th day of November, 2014, the City Council of the City of Rohnert Park adopted
Resolut ion No. 2014 - ____, Authorizing the California Statewide Communities Development Authority
(Authority) to Form a Community Facilities District within the Territorial Limits of the City of Rohnert
Park and Related Matters (“Resolution”).
E. On the ____ day of __________, 20__, the Authority formed the CFD and, on the same date, a
landowner election was conducted in which all of the votes were cast unanimously in favor of conferring
the Community Facilities District authority on the Authority Commission.
F. The Authority intends to levy special taxes and issue bonds to fund, among other things, all or a
portion of the costs of the Acquisition Improvements. The portion of the proceeds of the special taxes
and bonds allocable to the cost of the Acquisition Impr ovements, together with interest earned thereon, is
referred to herein as the “Available Amount”.
G. The Authority will provide financing for the acquisition by the City of the Acquisition
Improvements and the payment of the Acquisition Price (as defined herein) of the Acquisition
Improvements from the Available Amount. Attached hereto as Agreement Exhibit A is a description of
the Acquisition Improvements, which includes authorized discrete and usable portions, if any, of the
public capital improvements, pursuant to Section 53313.51 of the Act, to be acquired from the Developer,
and the specified development fees.
H. The parties anticipate that, upon completion of the Acquisition Improvements and subject to the
terms and conditions of this Agreement, the City will acquire the completed Acquisition Improvements.
An itemized development fee shall be considered complete when it is paid by the Developer, or when it is
payable directly from bond or special tax proceeds.
I. The Developer has submitted plans, specifications and drawings for a portion of the Acquisition
Agreements specifically titled _________________________________________________________ .
Together these plans, specifications and drawings are the “Improvement Plans”.
J. The Improvement Plans are on file in the office of the City Engineer and were approved by the
City Engineer on the ___ day of ___________ 20__.
K. Any and all monetary obligations of the City arising out of this Agreement are the special and
limited obligations of the City payable only from the Available Amount, and no other funds whatsoever
of the City shall be obligated therefor under any circumstances.
L. In consideration of Recitals A through K, inclusive, and the mutual covenants, undertakings and
obligations set forth below, the City, the Authority and the Developer agree as stated below.
M. Attached to this Agreement are Agreement Exhibit A (the Acquisition Improvements and the
Eligible Portions thereof), Agreement Exhibit B (Form of Requisition), and Agreement Exhibit C
(Bidding, Contracting and Construction Requirements for Acquisition Improvements), all of which are
incorporated into this Agreement for all purposes.
3
AGREEMENT
NOW, THEREFORE, in consideration of the faithful performance of the terms and conditions set
forth in this Agreement, the parties hereto agree as follows:
1. Incorporation of Recitals. The foregoing Recitals are true and correct and, together
with the Project Approvals and the requirements of Chapters 15.16 and 16.16 of the Rohnert Park
Municipal Code, are hereby incorporated into and form a material part of this Agreement.
2. Effect on Other Agreements. Nothing in this Agreement shall be construed as affecting
the Developer’s or the City’s duty to perform their respective obligations under any other agreements,
land use regu lations or subdivision requirements related to the Project, which obligations are and shall
remain independent of the Developer’s and the City’s rights and obligations under this Agreement.
3. Definitions. As used herein, the following capitalized terms shall have the meanings
ascribed to them below:
“Acceptable Title” means free and clear of all monetary liens, encumbrances, assessments,
whether any such item is recorded or unrecorded, and taxes, except those items which are reasonably
determined by the City Engineer not to interfere with the intended use and therefore are not required to be
cleared from the title.
“Acquisition and Construction Fund” means the “City of Rohnert Park University Park
Community Facilities District Acquisition and Construction Fund” established by the Authority pursuant
to the Resolution and Section 7.3 hereof for the purpose of paying the Acquisition Price of the
Acquisition Improvements.
“Acquisition Improvement” means a public capital improvement or a development fee
described in Exhibit A hereto.
“Acquisition Price” means the total amount eligible to be paid to the Developer upon
acquisition of an Acquisition Improvement as provided in Section 7.6, or in the case of a development
fee, the actual amount paid by the Developer, or the amount of a development fee to be paid on behalf of
the Developer from bond or special tax proceeds, in every case not to exceed the Actual Cost of the
Acquisition Improvement.
“Actual Cost” means the total cost of an Acquisition Improvement, as documented by the
Developer to the satisfaction of the City and as certified by the City Engineer in an Actual Cost
Certificate including, without limitation, (a) the Developer’s cost of constructing such Acquisition
Improvement including grading, labor, material and equipment costs, (b) the Developer’s cost of
designing and engineering the Acquisition Improvement, preparing the plans and specifications and bid
documents for such Acquisition Improvement, and the costs of inspection, materials testing and
construction staking for such Acquisition Improvement, (c) the Developer’s cost of any performance,
payment and maintenance bonds and insurance, including title insurance, required hereby for such
Acquisition Improvement, (d) the Developer’s cost of environmental evaluation or mitigation required for
such Acquisition Improvement, and (e) the amount of any fees actually paid by the Developer to
governmental agencies in order to obtain permits, licenses or other necessary governmental approvals and
reviews for such Acquisition Improvement.
“Actual Cost Certificate” means a certificate prepared by the Developer detailing the
Actual Cost of an Acquisition Improvement, or an Eligible Portion thereof, to be acquired hereunder, as
may be revised by the City Engineer pursuant to Section 7.6.
“Agreement” means this Acquisition Agreement, dated as of the __ day of
___________________, 20__.
4
“Authority” means the California Statewide Communities Development Authority.
“Authority Trust Agreement” means a Trust Agreement entered into by the Authority and
an Authority Trustee in connection with the issuance of bonds.
“Authority Trustee” means the financial institution identified as trustee in an Authority
Trust Agreement.
“Available Amount” shall have the meaning assigned to the term in Recital F.
“Bonds” means bonds or other indebtedness issued by the Authority that is to be repaid
with Special Taxes.
“City” means the City of Rohnert Park.
“City Engineer” means the City Engineer of the City of Rohnert Park or his/her designee
who will be responsible for administering the acquisition of the Acquisition Improvements hereunder.
“Code” means the Government Code of the State of California.
“Community Facilities District” shall have the meaning assigned to the term in Recital C.
“Developer” means University District, LLC, a Delaware limited liability company, and
Vast Oak Properties L.P., a California Corporation, and their successors and assigns.
“Disbursement Request Form” means a requisition for payment of funds from the
Acquisition and Construction Fund for an Acquisition Improvement, or an Eligible Portion thereof in
substantially the form contained in Exhibit B hereto.
“Eligible Portion” shall have the meaning ascribed to it in Section 7.6 below.
“Installment Payment” means an a mount equal to ninety percent (90%) of the Actual
Cost of an Eligible Portion.
“Project” means the Developer’s development of the property in the Community
Facilities District, including the design and construction of the Acquisition Improvements and the other
public and private Acquisition Improvements to be constructed by the Developer within the Community
Facilities District.
“Resolution” means City of Rohnert Park Resolution No. 2014-__, adopted the 25th day
of November, 2014 titled “A Resolution of the City Council of the City of Rohnert Park Authorizing The
California Statewide Communities Development Authority (The “Authority”) To Form A Community
Facilities District Within The Territorial Limits Of The City Of Rohnert Park and Related Matters”.
“Special Taxes” means annual special taxes, and prepayments thereof, authorized by the
Community Facilities District to be levied by the Commission of the Authority.
“Title Documents” means, for each Acquisition Improvement acquired hereunder, a grant
deed or similar instrument necessary to transfer title to any real property or interests therein (including
easements), or an irrevocable offer of dedication of such real property with interests therein necessary to
the operation, maintenance, rehabilitation and improvement by the City of the Acquisition Improvement
(including, if necessary, easements for ingress and egress) and a bill of sale or similar instrument
evidencing transfer of title to the Acquisition Improvement (other than said real property interests ) to the
City, where applicable.
4. Purpose; Effective Date
4.1 Purpose. The purpose of this Agreement is to provide financing for and
guarantee completion of the Acquisition Improvements ; to ensure satisfactory performance by Developer
5
of Developer's obligations under this Agreement, and to provide a credit to Developer of a portion of the
costs of the Acquisition Improvements through a reduction or payment of the Public Facilities Fee
obligation of the Developer.
4.2 Effective Date. The Effective Date of this Agreement shall be as set forth above.
5. Property Subject to Agreement. The property which is the subject of this Agreement is
located in the City of Rohnert Park, Sonoma County, California, and is described in Agreement Exhibit
D, attached hereto.
6. Acquisition Improvements
6.1 Duty to Install Acquisition Improvements. Developer will design, construct,
install and complete, or cause to be constructed, installed and completed, at the Developer's sole cost and
expense, the Acquisition Improvements, in accordance with the Improvement Plans (defined in Recital I.
above) and to the satisfaction of the City Engineer, in his/ her reasonable discretion. Developer will also
supply all labor and materials therefor, all in strict accordance with the t erms and conditions of this
Agreement. The construction, installation and completion of the Acquisition Improvements including all
labor and materials furnished in connection therewith are hereinafter referred to collectively as the
"Work."
City shall not be responsible or liable for the maintenance or care of the Acquisition Improvements unless
and until City formally approves and accepts them in accordance with its policies and procedures. City
shall exercise no control over the Acquisition Improvements unless and until approved and accepted.
Any use by any person of the Acquisition Improvements, or any portion thereof, shall be at the sole and
exclusive risk of the Developer at all times prior to City’s acceptance of the Acquisition Improvements.
Developer shall maintain all the Acquisition Improvements in a state of good repair until they are
completed by Developer and approved and accepted by City. Such maintenance shall include, but shall
not be limited to, repair of pavement, curbs, gutters, sidewalks, signals, parkways, water mains, and
sewers; maintaining all landscaping in a vigorous and thriving condition reasonably acceptable to City;
removal of debris from sewers and storm drains; and sweeping, repairing, and maintaining in good and
safe condition all streets and street improvements. It shall be Developer’s responsibility to initiate all
maintenance work, but if it shall fail to do so, it shall promptly perform such maintenance work when
notified to do so by City. If Developer fails to prop erly prosecute its maintenance obligation under this
section, City may do all work necessary for such maintenance and the cost thereof shall be the
responsibility of Developer and its surety under this Agreement. Prior to undertaking said maintenance
work, City agrees to notify Developer in writing of the deficiencies and the actions required to be taken
by the Developer to cure the deficiencies. Except in an emergency, Developer shall have thirty (30) days
from the date of the notice within which to correct, remedy or cure the deficiency. If the written
notification states that the problem is urgent and relates to the public health and safety, then the Developer
shall have twenty-four (24) hours to correct, remedy or cure the deficiency. City shall not be responsible
or liable for any damages or injury of any nature in any way related to or caused by the Acquisition
Improvements or their condition prior to acceptance.
6.2. Completion Date. Developer will complete the Work within three years of the
Effective Date or as required by the Amended and Restated Development Agreement between the City
and Developer, whichever is sooner. All Work will be completed in a good and workmanlike manner in
accordance with accepted design and construction practices. T his completion date may be extended by
the City in its sole and absolute discretion at the request of Developer, which request shall be
accompanied by a written assurance acceptable to the City Attorney that the securities required by Section
9 shall remain enforceable throughout the term of the extension.
6
6.3. Reversion to Acreage. If Developer fails to perform its obligations under this
Agreement, Developer consents, as applicable, to the reversion to acreage of the land which is subject to
this Agreement pursuant to Government Code section 66499.16 and to bear all applicable costs.
6.4. Property Acquisition. If Developer is unable to acquire property required for the
construction of the Acquisition Improvements, Developer agrees to execute a contract for real property
acquisition to provide for acquisition through eminent domain.
6.5. Estimated Cost of Work. The estimated cost of the Work is
__________________. Notwithstanding this estimate, Developer hereby acknowledges and agrees that
(a) the actual costs to complete the Work may significantly exceed this estimate, (b) this estimate in no
way limits Developer’s financial obligation, and (c) that Developer is obligated to complete the Work at
its own cost, expense, and liability.
6.6. Modifications to the Plans. Approval of this Agreement by City does not release
Developer of its responsibility to correct mistakes, errors or omissions in the Improvement Plans. If, at
any time, in the opinion of the City Engineer, in his/her reasonable discretion, the Improvement Plans are
deemed inadequate in any respect Developer agrees to make such modifications, changes or revisions as
necessary in order to complete the Work in a good and workmanlike manner in accordance with accepted
design and construction standards.
6.7. Foreman or Superintendent. Developer shall give personal attention to the Work.
A competent foreman or superintendent, satisfactory to the City Engineer, in his/her reasonable
discretion, with authority to act for and on behalf of Developer, s hall be named in writing by Developer
prior to commencement of the Work, shall be present on the Property during the performance of the
Work and may not be changed without the advance notification to and satisfaction and concurrence of
the City Engineer.
6.8. Encroachment Permits. Developer shall obtain, at its sole cost and expense, any
encroachment permits required by the City in order to perform the Work.
6.9. Commencement of Construction and Inspection. Developer and its
contractor or subcontractors shall not commence construction of the Acquisition Improvements until
Developer has received written authorization from City to proceed. Written authorization shall be
in the form of signed approved plans along with permit issuance, including any encroachment
permit required to carry on construction activities in the City's right -of-way as described in Section
6.8. All work performed on the Acquisition Improvements shall be done in strict compliance with
the City approved plans, specifications and the contract documents and in a good and workmanlike
manner. All work performed by Developer, its contractor or agents to construct the Acquisition
Improvements shall be subject to inspection and approval by City. All fees and costs to construct the
Acquisition Improvements shall be borne solely by Developer (including the applicable Inspection
Fee in accordance with the City's adopted Engineering Fee Schedule). Inspection by City or its
employees or agents shall not relieve Developer of its liability for design def ects or improper or
inadequate workmanship.
6.10. Examination of Work. All of the Work shall be performed to the satisfaction of
the City Engineer, in his/her reasonable discretion. The City and its authorized agents shall, at all times
during the perfor mance of the Work, have free access to the Work and shall be allowed to examine the
Work and all materials used and to be used in the Work.
7
6.11. City's Inspection, Administration and Testing Costs. Developer shall pay to City
the actual cost for all insp ection, administration and testing services furnished by City in connection with
this Agreement, including those performed by consultants under contract with the City (the "City Costs").
City agrees not to double charge Developer (through the imposition of both a processing fee and a
consultant charge) for any individual monitoring, inspection, testing or evaluation service. In addition,
City agrees to limit its use of outside consultants to those reasonably necessary or desirable, as
determined by the City Manager or his designee in his reasonable discretion, to accomplish the requisite
inspection, administration and monitoring. The estimated cost for the inspection, administration and
testing services is Eighteen Thousand, Eight Hundred Seventy-six Dollars and Ninety Cents ($18,876.90)
(the "Estimated Cost"). Notwithstanding this estimate, Developer hereby acknowledges and agrees that
(a) the actual costs to accomplish the requisite inspection, administration and monitoring may
significantly exceed this estimate, (b) this estimate in no way limits Developer’s financial obligation, and
(c) that Developer is obligated to reimburse the City for its actual cost, expense, and liability associated
with said inspection, administration and monitoring. City will bill the Developer for the actual costs of
inspection, administration and testing in a manner consistent with terms and conditions of the
Reimbursement Agreement between City and Developer dated _______________ and the Development
Agreement Approved by City Ordinance 878 on April 22, 2104.
6.12. No Waiver by City. Inspecting of the work and/or materials, or approval of work
and/or materials, or a statement by an officer, agent or employee of the City indicating the work complies
with this Agreement, or a cceptance of all or any portion of the work and/or materials, or payments
thereof, or any combination of all of these acts shall not relieve Developer or its obligation to fulfill this
Agreement; nor is the City by these acts prohibited from bringing an action for damages arising from the
failure to comply with this Agreement.
6.13. Erosion Control. Pursuant to Rohnert Park Municipal Code Chapter 15.52,
Developer shall be responsible for the control of erosion on the Property and shall prevent its entry into
the storm drainage system.
6.14. Prevailing Wages. The work of the Acquisition Improvements constitutes a
"public work" as defined in the California Labor Code, section 1771, et seq ("Labor Code
Regulations"). Developer agrees and acknowledges that the construction of the Acquisition
Improvements is subject to the payment of prevailing wages and agrees to comply with the
requirements of the Labor Code Regulations. Further, Developer agrees to defend, indemnify and
hold City, its elected officials, off icers, employees, and agents free and harmless from any and all
claims, damages, suits or actions arising out of or incident to Developer's obligations under this
section. Developer agrees to satisfy, to the extent applicable, its obligation of registering with the
Department of Industrial Relations and furnishing electronic certified payroll records to the Labor
Commissioner pursuant to Senate Bill 854 (2014).
6.15. Contractor Licenses. All work performed on the Acquisition
Improvements shall be done only by contractors licensed in the State of California and qualified
to perform the type of work required and comply with the City's Business License Ordinance.
6.16. Repair of Work Damaged During Construction. Developer agrees to repair or
have repair ed in a timely manner at its sole cost and expense all public roads, streets, or other public or
private property (both real and personal) damaged as a result of or incidental to the Work or in
connection with the development of the Property or to pay to the property owner of any damaged road,
street or property the full cost of such repair. In addition, Developer shall obtain the written acceptance
of such repair or payment from any owner whose private property was repaired by Developer or to
8
whom Developer has paid the full cost of such repair in accordance with this Section 6.16. City shall be
under no obligation whatsoever to accept the Work completed under this Agreement until such time as
all repairs have been completed or have been paid for and writ ten acceptances have been provided to the
City Engineer, except as otherwise provided in section 6.20.1.
6.17. Payments. Developer agrees that it will pay, when due, all those furnishing labor
or materials in connection with the Work. Developer further a grees that pursuant to Government Code
section 66499.7, the Labor and Materials Bond provided by Developer in accordance with Section 9.1.2
of this Agreement shall not be released if any mechanics liens or stop notices are outstanding, unless
said liens ar e released by bond in compliance with Civil Code section 3143.
6.18. Liability for Work Prior to Formal Acceptance. Until the City Council has
formally accepted the Acquis ition Improvements, Developer shall be solely responsible for all
damage to the work, regardless of cause, and for all damages or injuries to any person or
property at the work site, except damage or injury due to the sole negligence of City, or its
employees. Developer shall replace or repair any portion of the Acquisition Improvements that
have been destroyed or damaged prior to final acceptance of completed work by the City Council
or the City Engineer. Any such repair or replacement shall be to the satisfaction and subject to the
approval of the City Engineer. Developer shall repair to the satisfaction of the City Engineer any
damage to the utilities systems, concrete work, street paving or other public Acquisition
Improvements that may occur in connection with the Acquisition Improvements work.
6.19. Completion of Work. After Developer (a) completes the Work in accordance
with the Improvement Plans and the terms and conditions of this Agreement, (b) repairs any road,
street, or private or public property damaged as a result of the Work or pays the full cost of such repair
to the owner whose property was damaged and (c) obtains the written acceptance of such repair or
payment from any owner whose private property was repaired by Developer or to whom Developer
paid the full cost of such repair, Developer will provide City with a written notice of completion,
together with copies of all written acceptances.
6.20. Final Acceptance.
6.20.1 Notice of Completion. Within thirty (30) days of receipt of Developer's
written notification pursuant to Section 6.19 above, City Engineer shall inspect the Work and repairs
and review the written acceptances, if any, and send Developer a written notice stating whether the
Work and repair are complete to the satisfaction of the City Engineer, in his/her reasonable discretion,
and whether the written acc eptances have been provided. If the Work and repair are, in the opinion of
the City Engineer, not complete and satisfactory, and/or written acceptances have not been provided,
the City Engineer will list the deficiencies that must be corrected to find the Work and repair complete
and satisfactory. Upon satisfactory completion of the Work and repair and submittal of written
acceptances, the City Engineer will send Developer a written notice of satisfactory completion. The
requirement for written acceptances may be waived by the City Engineer, in his/her reasonable
discretion, if Developer has made commercially reasonable efforts to obtain such acceptances. City
Engineer's failure to respond to Developer's written notification within thirty (30) days will not be
deemed a breach or default under this Agreement.
6.20.2 Acceptance of Improvements. After sending Developer a written notice
of satisfactory completion pursuant to Section 6.20.1, the City Engineer will recommend acceptance of
the Acquisition Improvements, or a portion thereof, to the City Council. In conjunction with such
recommendation, the City Engineer will recommend the acceptance of the offers of dedication shown
on the final map for the Property. The acceptance of the Acquisition Improvements, offers of
9
dedication and right -of-way and easements, if any, shall be by resolution. Upon adoption of such
resolution, the City Engineer shall record a notice of acceptance, in a form to be approved by the City
Attorney, in the Official Records of Son oma County.
6.21. Warranty Period; Repair and Reconstruction. Without limiting the foregoing,
Developer expressly warrants and guarantees all Work performed under this Agreement and all
materials used in the Work for a period of one (1) year after the date of recordation of the notice of
acceptance of the Acquisition Improvements in accordance with Section 6.20. If, within this one (1)
year period, any Improvement or part of any Improvement installed or constructed, or caused to be
installed or constructed by Developer, or any of the work done under this Agreement, fails to fulfill any
of the requirements of the Improvement Plans or this Agreement, Developer shall, without delay and
without cost to City, repair, replace or reconstruct any defective or otherwise unsatisfactory part or parts
of the Work or Improvement to the satisfaction of the City Engineer. Should Developer fail to act
promptly, by failing to repair, replace or reconstruct work thirty (30) days after notification by City, or
in accordance with this requirement, or should the exigencies of the situation require repairs,
replacements or reconstruction to be made before Developer can be notified, City may, at its option,
make the necessary repairs, replacements or perform the necessary recons truction and Developer shall
pay to the City upon demand the actual cost of such repairs, replacements or reconstruction.
6.22. Record Drawings. Upon completion of the Acquisition Improvements and
prior to final acceptance by the City Council, Developer shall deliver to City one electronic file, in
a format specified by the City Engineer, and one mylar copy of "as-built" drawings. These
drawings shall be in a form acceptable to the City Engineer, shall be certified by an engineer
licensed by the State of California as to accuracy and completeness, and shall reflect the
Acquisition Improvements as actually constructed, with any and all changes incorporated therein.
Developer shall be solely responsible and liable for ensuring the completeness and accuracy of the
record drawings.
6.23. Ownership of Improvements. From and after acceptance of the
Acquisition Improvements by formal action of the City Council, ownership of the Acquisition
Improvements shall be vested exclusively in City.
7. Community Facilities District.
7.1. Establishment of Community Facilities District . Developer has
requested the City to permit the Authority to provide for financing of the Acquisition
Improvements through the establishment and authorization of the Community Facilities
District and the City agreed by its adoption of the Resolution. The Community Facilities
District was established by the Authority on __ day of ___________, 20__, and through
the successful landowner election held that same day, the Commission of the Authority is
authorized to levy the Special Taxes and to issue the Bonds to finance the Acquisition
Improvements. Developer, the City and the Authority agree to reasonably cooperate with
one another in the completion of the financing through the issuance of the Bonds in one or
more series.
7.2. Deposit and Use of Available Amount.
7.2.1 Prior to the issuance of the first series of Bonds, Special Taxes collected
by the Authority shall be deposited in the Acquisition and Construction Fund established by the Authority
and may be disbursed to pay the Acquisition Price of Acquisition Improvements in accordance with this
10
Agreement. All funds in the Acquisition and Construction Fund shall be considered a portion of the
Available Amount, and upon the issuance of t he first series of Bonds the Acquisition and Construction
Fund shall be transferred to the Authority Trustee to be held in accordance with the Authority Trust
Agreement.
7.2.2 Upon the issuance of the first series of Bonds, the Authority will cause
the Authority Trustee to establish and maintain the Acquisition and Construction Fund for the purpose of
holding all funds for the Acquisition Improvements. All earnings on amounts in the Acquisition and
Construction Fund shall remain in the Acquisition and Construction Fund for use as provided herein and
pursuant to the Authority Trust Agreement. Money in the Acquisition and Construction Fund shall be
available to respond to delivery of a Disbursement Request Form and to be paid to the Developer or its
designee to pay the Acquisition Price of the Acquisition Improvements. Upon completion of all of the
Acquisition Improvements and the payment of all costs thereof, any remaining funds in the Acquisition
and Construction Fund (less any amount determined by the C ity as necessary to reserve for claims against
the account) (i) shall be applied to pay the costs of any additional Acquisition Improvements eligible for
acquisition with respect to the Project as approved by the Authority and, to the extent not so used, (ii)
shall be applied by the Authority to call Bonds or to reduce Special Taxes as the Authority shall
determine.
7.3 Letting and Administering Design Contracts. The Developer has awarded and
Acquisition Improvements to be acquired from Developer. All eligible expenditures of the Developer for
design engineering and related costs in connection with the Acquisition Improvements (whether as an
advance to the City or directly to the design consultant) shall be reimbursed at the time of acquisition of
the Acquisition Improvements. The Developer shall be entitled to reimbursement for any design costs of
the Acquisition Improvements only out of the Acquisition Price as provided in Section 7.5 and shall not
be entitled to any payment for design costs independent of the acquisition of Acquisition Improvements.
7.4 Letting and Administration of Construction Contracts; Indemnification. State
law requires that all Acquisition Improvements not completed prior to the formation of the Community
Facilities District shal l be constructed as if they were constructed under the direction and supervision, or
under the authority, of the City. In order to assure compliance with those provisions, except for any
contracts entered into prior to the date hereof, Developer agrees to comply with the requirements set forth
in Exhibit C hereto with respect to the bidding and contracting for the construction of the Acquisition
Improvements. The Developer agrees that all the contracts shall call for payment of prevailing wages as
required by the Labor Code of the State of California. The Developer’s indemnification obligation set
forth in Section 10.1 of this Agreement shall also apply to any alleged failure to comply with the
requirements of this Section, and/or applicable State laws regarding public contracting and prevailing
wages.
7.5 Sale of Acquisition Improvements. The Developer agrees to sell to the City each
Acquisition Improvement to be constructed by Developer (including any rights-of -way or other easements
necessary for the Acquisition Improvements, to the extent not already publicly owned), when the
Acquisition Improvement is completed to the satisfaction of the City for an amount not to exceed the
lesser of (i) the Available Amount or (ii) the Actual Cost of the Acquisition Improvement. Exhibit A,
attached hereto and incorporated herein, contains a list of the Acquisition Improvements. Portions of an
Acquisition Improvement eligible for Installment Payments prior to completion of the entire Acquisition
Improvement are described as eligible, discrete and usable portions in Exhibit A (each, an “Eligible
Portion”). At the time of completion of each Acquisition Improvement, or Eligible Portion thereof, the
Developer shall deliver to the City Engineer a written request for acquisition, accompanied by an Actual
Cost Certificate, and by executed Title Documents for the transfer of the Acquisition Improvement where
necessary. In the event that the City Engineer finds that the supporting paperwork submitted by the
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Developer fails to demonstrate the required relationship between the subject Actual Cost and eligible
work, the City Engineer shall advise the Developer that the determination of the Actual Cost (or the
ineligible portion thereof) has been disallowed and shall request further documentation from the
Developer. If the further documentation is still not adequate, the City Engineer may revise the Actual
Cost Certificate to delete any disallowed items and the determination shall be final and conclusive.
Where a specific contract has been awarded for design or engineering work relating solely to an
Acquisition Improvement or Improvements, one hundred percent (100%) of the costs under the contract
will be allocated to that Acquisition Improvement. Costs of environmental mitigation required solely to
mitigate impacts of an Acquisition Improvement or Acquisition Improvements will be allocated one
hundred percent (100%) public to that Acquisition Improvements. When costs of design or environmental
work are shared between Acquisition Improvements and improvements not eligible for acquisition, or
between public and private work, these costs are not eligible for reimbursement.
7.6 Conditions Precedent to Payment of Acquisition Price. Payment to the
Developer or its designee of the Acquisition Price for an Acquisition Improvement from the Acquisition
and Construction Fund shall in every case be conditioned first upon the determination of the City
Engineer, pursuant to Section 7.5, that the Acquisition Improvement satisfies all City regulations and
ordinances and is otherwise complete and ready for acceptance by the City, and shall be further
conditioned upon satisfaction of the following additional conditions precedent:
a) The Developer shall have provided the City with lien releases or other similar
documentation satisfactory to the City Engineer as evidence that none of the
property (including any rights -of-way or other easements necessary for the
operation and maintenance of the Acquisition Improvement, to the extent not
already publicly owned) comprising the Acquisition Improvement, and the
property which is subject to the special taxes of the Community Facilities
District, is not subject to any prospective mechanics lien claim respecting the
Acquisition Improvements.
b) The Developer shall b e current in the payment of all due and payable general
property taxes, and all special taxes of the Community Facilities District, on
property owned by the Developer or under option to the Developer within the
Community Facilities District.
c) The Developer shall have provided the City with Title Documents needed to
provide the City with title to the site, right-of-way, or easement upon which the
subject Acquisition Improvement is situated. All such Title Documents shall be
in a form acceptable to the City and shall convey Acceptable Title. The
Developer shall provide a policy of title insurance as of the date of transfer in a
form acceptable to the City Engineer and the City Attorney insuring the City as
to the interests acquired in connection with the acquisition of any interest for
which such a policy of title insurance is not required by another agreement
between the City and the Developer. Each title insurance policy required
hereunder shall be in the amount equal to the Acquisition Price. The amount
paid to the Developer or its designee upon satisfaction of the foregoing
conditions precedent shall be the Acquisition Price less all Installment Payments
paid previously with respect to the Acquisition Improvement.
7.7 Payment for Eligible Portions. The D eveloper may submit an Actual Cost
Certificate to the City Engineer with respect to any Eligible Portion. Payment to the Developer or its
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designee from the Acquisition and Construction Fund of an Installment Payment with respect to such
Eligible Portion shall in every case be conditioned first upon the determination of the City Engineer,
pursuant to Section 7.5, that the Eligible Portion has been completed in accordance with the applicable
plans and specifications and that the Eligible Portion satisfies all City regulations and ordinances and is
otherwise complete and, where appropriate, is ready for acceptance by the City, and shall be further
conditioned upon satisfaction of the following additional conditions precedent:
a) The Developer shall have provided the City with lien releases or other similar
documentation satisfactory to the City Engineer as evidence that the property
(including any rights -of-way or other easements necessary for the operation and
maintenance of the Eligible Portion, to the extent not already owned by the City)
comprising the Eligible Portion is not subject to any prospective mechanics lien
claim respecting the Eligible Portion.
b) The Developer shall be current in the payment of all due and payable general
property taxes, and all special taxes of the Community Facilities District, on
property owned by the Developer or under option to the Developer within the
Community Facilities District.
c) The Developer shall have provided the City with Title Documents needed to
provide the City with title to the site, right -of-way, or easement upon which the
subject Eligible Portion is situated. All such Title Documents shall be in a form
acceptable to the City Engineer and shall be sufficient, upon completion of the
Acquisition Improvement of which the Eligible Portion is a part, to convey
Acceptable Title.
d) Payment and performance bonds, from a bonding company with an A.M. Best
rating of at least “A-” or its equivalent, applying to plans and specifications for
the Acquisition Improvement approved by the City, shall be in place to secure
completion of the Acquisition Improvement of which the Eligible Portion is a
part.
7.8 Disbursement Request Form. Upon a determination by the City Engineer to pay
the Acquisition Price of an Acquisition Improvement pursuant to Section 7.6 or to pay an Installment
Payment for an Eligible Portion pursuant to Section 7.7, the City Engineer shall cause a Disbursement
Request Form substantially in the form attached hereto as Exhibit B to be submitted to the Authority
Trustee, a nd the Authority Trustee shall make payment directly to the Developer or its designee of the
amount pursuant to the Authority Trust Agreement. The Authority, the City and the Developer
acknowledge and agree that the Authority Trustee shall make payment strictly in accordance with the
Disbursement Request Form and shall not be required to determine whether or not the Acquisition
Improvement or Eligible Portion has been completed or what the Actual Costs may be with respect to the
Acquisition Improvement or Eligible Portion. The Authority Trustee shall be entitled to rely on the
executed Disbursement Request Form on its face without any further duty of investigation.
In the event that the Actual Cost of an Acquisition Improvement or the Installment Payment for an
Eligible Portion is in excess of the Available Amount, the Authority Trustee shall withdraw all funds
remaining in the Acquisition and Construction Fund and shall transfer those amounts to the Developer or
its designee. The unpaid portion of the Actual Cost shall be paid from funds that may subsequently be
deposited in the Acquisition and Construction Fund from a subsequent issuance of Bonds or from Special
Tax revenues, if either of those occurs.
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7.9. Limitation on Obligations. In no event shall the City or the Authority be required
to pay the Developer or its designee more than the amounts held in the Acquisition and Construction
Fund.
7.10. Audit. The City and the Authority shall have the right, during normal business
hours and upon the giving of ten days’ written notice to the Developer, to review all books and records of
the Developer pertaining to costs and expenses incurred by the Developer (for which the Developer seeks
reimbursement pursuant to this Agreement) in constructing the Acquisition Improvements.
8. Public Facilities Finance Plan Fee Credit
8.1. Eligible Improvements. The Acquisition Improvements eligible to receive the Public
Facilities (PF) Fee Credit described are ____________________, more particularly described in Exhibit
E.
8.2. Source and Method of Credit. Subject to the limitations set forth in Section 8.6, City
shall credit Developer for the costs associated with the design, financing, construction and installation of
the Acquisition Improvements listed in Exhibit E (the "PF Fee Credit"). The PF Fee Credit represents
reimbursement to the Developer of costs that are covered by the PF Fee, but which Developer has agreed
to incur. The initial estimated total credit amount is indicated in Exhibit F "PF Fee Credit Calculation"
attached hereto, and shall be afforded to Developer in the form of a credit against the Public Facilities Fee
that would otherwise be applicable to the Project.
8.3. Implementation of PF Fee Credit. Developer shall be entitled to receive the PF Fee
Credit at the time of issuance of building permit. Such credit shall be personal to the Developer and shall
not run to successors and assigns unless expressly authorized to so run, in writing by the Developer.
8.4. Fee Obligation. Developer's obligation to pay the full amount of the PF Fee shall
remain a debt and obligation of Developer until completion by Developer and acceptance of the
Acquisition Improvements by City. In the event that the Acquisition Improvements are not completed by
a date two (2) years from the Effective Date of this Agreement, any PF Fee previously credited pursuant
to this Agreement shall be immediately due and payable. If such fees are not paid as required, City may
provide written notice to Developer of its default. If such default is not corrected within 30 days from the
date of written notice, Developer agrees that the amount of any unpaid PF Fees may be placed upon the
property as a lien and special assessment. The assessment shall continue until it is paid, together with
interest at the legal maximum rate computed from the date of confirmation of the statement until
payment. The assessment shall be collected at the same time and in the same manner as ordinary
municipal taxes are collected, and shall be subject to the same penalties and procedure and sale in case of
delinquency as is provided for ordinary municipal taxes. All laws applicable to the levy, collection and
enforcement of municipal taxes shall be applicable to the special assessment. In addition, City may use
any other available legal means to collect the unpaid PF Fee and the choice of one remedy does not affect
City's ability to use alternative remedies.
8.5. Expiration of Credit Obligation. The PF Fee Credit shall be granted to Developer at
the time Developer obtains building permit(s). City's obligation to extend Developer a credit as described
herein shall continue for a total of two (2) years from the date the Developer begins construction of the
Acquisition Improvements as more fully described in Exhibit E, unless the obligation is sooner satisfied.
If Developer fails to complete the Acquisition Improvements within a two-year time frame, City may seek
payment of the Public Facilities Fee from Developer as provided in Section 8.4, above.
8.6. Maximum Credit. The total amount of the PF Fee Credit obligation for the
Acquisition Improvements shall be as determined by City in accordance with the most current edition of
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the City of Rohnert Park Public Facilities Finance Plan. The Parties acknowledge and agree that the
maximum credit amount for the Acquisition Improvements is estimated to be ____________ ($---).
8.7. Areas and Quantities . The areas and quantities used to develop this Public Facilities
Fee Credit are based on the information and plans available at this time. The actual areas and quantities
may change at the time of dedication to the City and/or construction by the Developer. If it is determined
by the City Engineer that the areas and quantities have changed, the credit amount may be adjusted
accordingly, either l ower or higher up to the maximum credit amount set forth above.
9. Security.
9.1. Performance, Labor and Materials and Warranty Security. In accordance with
Sections 16.16.060 through 16.16.070 of the Rohnert Park Municipal Code, Developer will furnish and
deliver to City, within the times set forth below, the following surety bonds, each of which must be
issued by a surety company duly and regularly authorized to do general surety business in the State of
California, or an irrevocable assignment of funds or letter of credit as may be acceptable to the City
Attorney.
9.1.1 Performance Security. Developer shall furnish and deliver performance
security in the amount of _________________ concurrently with the execution of this Agreement,
which must meet the r equirements of Government Code Section 66499.1, if applicable, and Rohnert
Park Municipal Code Section 16.16.070 and be acceptable to the City Attorney. The security shall be
conditioned upon the faithful performance of this Agreement with respect to the Work and shall be
released by the City effective upon the date of recordation of the notice of acceptance of the Acquisition
Improvements as described in Section 6.20.2 and Developer's delivery of the Warranty Security
described in Section 9.1.3.
9.1.2 Labor and Materials Security. Developer shall furnish and deliver labor
and materials security in the amount of __________________________, concurrently with the
execution of this Agreement which security must meet the requirements of Government Code Section
66499.2, if applicable, and Rohnert Park Municipal Code Section 16.16.070 and be acceptable to the
City Attorney. The security shall secure payment to the contractor(s) and subcontractor(s) performing
the Work and to all persons furnishing labor, materia ls or equipment to them. The City shall retain each
security until both (i) the City accepts the Work in accordance with Section 6.20 above and (ii) the
statute of limitations to file an action under Civil Code section 3114 et seq. has expired. After said date,
the security may be reduced by the City Engineer to an amount not less than the total amount claimed
by all claimants for whom claims of lien have been recorded and notice given in writing to the City
Council. The balance of the security shall be retained until the final settlement of all such claims and
obligations. If no such claims have been recorded, the security shall be released in full by the City
Engineer.
9.1.3. Warranty Security. Developer shall furnish and deliver warranty security
in the amount specified in section 16.16.070 c. of the Rohnert Park Municipal Code. The amount of
________________________ shall be provided upon acceptance of the Acquisition Improvements and
prior to release of the Performance Security. The security shall be in a form acceptable to the City
Attorney and shall guarantee and warranty the Work for a period of one (1) year following the date of
recordation of the notice of acceptance of the Acquisition Improvements against any defective work or
labor done, or defective materials furnished.
9.2. Additional Security. If either upon execution of this Agreement or during the
course of performance the City considers that it is necessary to have Developer post additional security,
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the City may require either a cash deposit or a surety bond guaranteeing performance in a form and
signed by sureties satisfactory to it. The condition of the security shall be that if Developer fails to
perform its obligation under this Agreement, the City may in the case of a cash bond act for it using the
proceeds or in the case of a surety bond require the sureties to perform the obligations of the
Agreement.
10 Indemnity and Insurance.
10.1 Indemnification. Developer agrees to indemnify, defend and hold the
City and Authority, inclu ding elective and appointed boards, commissions, officers, agents, employees
and consultants, harmless from and against any and all claims, liabilities, losses, damages or injuries of
any kind (collectively, "Claims") arising out of Developer's, or Develop er's contractors', subcontractors',
agents' or employees', acts, omissions, or operations under this Agreement, including, but not limited to,
the performance of the Work, whether such acts, omissions, or operations are by Developer or any of
Developer's contractors, subcontractors, agents or employees, except to the extent such Claims are
caused by the sole negligence or willful misconduct of the City. This indemnification includes, without
limitation, the payment of all penalties, fines, judgments, awards, decrees, attorneys’ fees, and related
costs or expenses, and the reimbursement of City, its elected officials, officers, employees, and/or
agents for all legal expenses and costs incurred by each of them. Developer shall defend the City as
required by C alifornia Civil Code Section 2778, and with counsel reasonably acceptable to the City
developer shall have no right to seek reimbursement from City for the costs of defense.
The aforementioned indemnity shall apply regardless of whether or not City has pr epared,
supplied or approved plans and/or specifications for the Work or Acquisition Improvements and
regardless of whether any insurance, workers compensation, disability or other employee benefit acts or
terms required under this Agreement are applicable to any Claims. The City does not and shall not
waive any of its rights under this indemnity provision because of its acceptance of the bonds or
insurance required under the provisions of this Agreement. Developer’s obligation to indemnify City
shall survive the expiration or termination of this Agreement.
Developer agrees to obtain executed indemnity agreements with provisions identical to those
set forth here in this section from each and every sub-contractor or any other person or entity involved
by, for, with or on behalf of Developer in the performance of this Agreement. In the event Developer
fails to obtain such indemnity obligations from others as required here, Developer agrees to be fully
responsible according to the terms of this section. Failure of City to monitor compliance with these
requirements imposes no additional obligations on City and will in no way act as a waiver of any rights
hereunder.
10.2 Assignment and Assumption of Obligations to Authority. In addition to the
indemnification obligations described above, consistent with the requirements of Section 4.04 of the
Amended and Restated Development Agreement, Developer is solely responsible for the costs,
expenses and liability associated with the formation of the CSD. As a result of Developer’s selection of
the Authority, City was obligated to adopt a Resolution, as described above in Recital D, authorizing
the Authority to form a CSD within the city limits for the benefit of Developer. Paragraphs 12, 13 and
14 of the Resolution require the City to indemnify and hold harmless the Authority for specified risks
and to comply with the payment of prevailing wages and satisfy other public contracting requirements.
The City and Developer acknowledge in authorizing the Resolution, that the City reserved the right to
require the Developer to assume the entirety of such responsibility and by this Paragraph 10.2 intend to
effectuate that right. Accordingly, City hereby assigns to Developer all of its obligations and
responsibilities under Paragraphs 12, 13 and 14 of the Resolution. Developer hereby accepts said
assignment and assumes all obligations and responsibilities under Paragraphs 12, 13 and 14 of the
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Resolution, and further agrees to perform all of City’s obligations and covenants under Paragraphs 12,
13 and 14 of the Resolution as if Developer were the original signatory thereto.
10.3. Insurance. Developer shall maintain Commercial General Liability Insurance
protecting the City from incidents as to bodily injury liability and property damage liability that may
occur as a result of the Work and additional repairs. Developer shall provide certificate(s) of insurance
and endorsements to City before any Work commences. The insurance policy shall contain, or be
endorsed to contain, the following provisions:
(1) The City, its officers, elected officials, employees, consultants, agents and
volunteers are to be covered as additional insured’s as respects to liability arising
out of activities performed by or on behalf of Developer. The coverage shall
contain no special limitations on the scope of protection afforded to the City, its
officers, elected officials, employees, consultants, agents and volunteers.
(2) The amounts of public liability and property damage coverage shall not be less
than $3,000,000 (Three Million Dollars) per occurrence for bodily injury,
personal injury and property damage.
(3) The insurance shall be maintained in full force until the work has been completed
to the satisfaction of the City Engineer.
(4) The ins urance policy shall provide for 30 days’ notice of cancellation to the City.
The policy shall not be cancelled earlier than nor the amount of coverage be
reduced earlier than 30 days after the City receives notice from the insurer of the
intent of cancellation or reduction.
(5) Any failure to comply with the reporting provisions of the policy shall not affect
the coverage provided to the City, its officers, elected officials, employees,
consultants, agents and volunteers.
(6) Developer's insurance coverage shall be primary insurance as respects the City,
its officers, elected officials, employees, consultants, agents and volunteers. Any
insurance or self-insurance maintained by the City, its officers, elected officials,
employees, consultants, agents and volunteers shall be in excess of Developer's
insurance and shall not contribute to it.
(7) Any deductibles or self -insured retentions must be declared to and approved by
City. At the option of City, either: (a) the insurer shall reduce or eliminate such
deductibles or self-insured retentions as respects City, its elected officials,
officers, employees, agents, and volunteers; or (b) Developer and its contractors
shall provide a financial guarantee satisfactory to City guaranteeing payment of
losses and rela ted investigation costs, claims, and administrative and defense
expenses.
(8) Developer and Developer's insurance company agree to waive all rights of
subrogation against City, its officers, elected officials, employees, agents and
volunteers for losses paid under Developer's workers' compensation insurance
policy which arise from the work performed by Developer.
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(9) Developer’s insurance shall apply separately to each insured against whom claim
is made or suit is brought, and include a “separation of insur eds” or
“severability” clause which treats each insured separately, except with respect to
the limits of the insurer's liability (cross-liability endorsement).
(10) It shall be a requirement under this Agreement that any available insurance
proceeds broader than or in excess of the specified minimum insurance coverage
requirements and/or limits shall be available to the Additional Insured, including
but not limited to any umbrella or excess insurance. Furthermore, the
requirements for coverage and limits shall be the greater of: (a) the minimum
coverage and limits specified in this Agreement; or (b) the broader coverage and
maximum limits of coverage of any insurance policy or proceeds available to the
named insured.
In the event that Developer's insurance is cancelled, Developer shall provide replacement coverage or
all work must cease as of the cancellation date until replacement insurance coverage is provided.
If Developer fails to maintain insurance coverage or provided insurance documentation which is
required pursuant to this Agreement, it shall be deemed a material breach of this Agreement. City, at its
sole option, may terminate this Agreement and obtain damages from Developer resulting from said
breach. Alternatively, City may purchase the required insurance coverage, and without further notice to
Developer, may deduct from sums due to Developer any premium costs advanced by City for such
insurance. These remedies shall be in addition to any other remedies available to City.
10.3. Workers' Compensation Insurance. Developer shall provide, or cause to be
provided, Workers' Compensation insurance as required by law, and shall cause its contractors and their
subcontractors, agents and representatives to also maintain Workers' Compensation insurance as
required by law. No Work shall commence until such Workers' Compensation insurance is obtained
and in full force and effect.
10.4. Other Insurance Requirements. Developer shall:
(1) Prior to taking any actions under this Agreement, furnish City with properly
executed certificates of insurance which shall clearly evidence all insurance
required in this section and provide that such insurance shall not be canceled,
allowed to expire or be materially reduced in coverage except on thirty (30)
days prior written notice to City.
(2) Provide to City certified copies of endorsements and policies if requested by City,
and properly executed certificates of insurance evidencing the insurance required
herein.
(3) Replace or require the replacement of certificates, policies and endorsements for any insurance required herein expiring prior to completion and acceptance of the Improvements.
(4) Maintain all insurance required herein from the time of execution of this
Agreement until the acceptance of the Improvements.
(5) Place all insurance required herein with insurers licensed to do business in
California.
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11. Breach of Agreement; Opportunity to Cure; Remedies.
11.1. Notice of Breach and Default. The occurrence of any of the following constitutes
a breach and default of this Agreement:
(1) Developer refuses or fails to complete the Work within the time set forth herein
or abandons the Work.
(2) Developer assigns the Agreement without the prior written consent of City.
(3) Developer is adjudged bankrupt or makes a general assignment for the benefit of
creditors, or a receiver is appointed in the event of Developer's insolvency.
(4) Developer or Developer's contractors, subcontractors, agents or employees, fail
to comply with any terms or conditions of this Agreement.
(5) Any delay in the construction of any portion of the Work or repairs, which in the
reasonable opinion of the City Engineer, endangers public or private property.
The City may serve written notice of breach and default upon Developer and the financial institution
holding the security.
11.2. Breach of Agreement; Performance by City. If the City gives Developer notice,
under Section 11.1, of breach and default of this Agreement, the City may proceed to complete the
Work by contract or other method the City considers advisable, at the sole expense of Developer.
Developer, immediately upon demand, shall pay the costs and charges related to the Work and any
subsequent repairs. City, without liability for doing so, may take possession of and utilize in
completing the Work and repairs, if any, such materials and other property belonging to Developer as
may be on or about the Property and necessary for completion of the work. In the event of default, the
financial institution holding the security shall be liable to City to pay the face amount of the bonds, as
specified under Section 8.
11.3. Remedies. It is acknowledged by the parties that the City would not have entered
into this Agreement if it were to be liable in damages under or with respect to this Agreement or the
application thereof, other than for the payment to the Developer of any (i) moneys owing to the Developer
hereunder, or (ii) moneys paid by the Developer pursuant to the provisions hereof which are
misappropriated or improperly obtained, withheld or a pplied by the City.
In general, each of the parties hereto may pursue any remedy at law or equity available for the breach of
any provision of this Agreement, except that the City shall not be liable in damages to the Developer or to
any assignee or transf eree of the Developer other than for the payments to the Developer specified in the
preceding paragraph. Subject to the foregoing, the Developer covenants not to sue for or claim any
damages for any alleged breach of, or dispute which arises out of, this Agreement.
City may bring legal action to compel performance of this Agreement and recover the costs of completing
the Work and/or repairs, if any, including City's administrative and legal costs. Developer agrees that if
legal action is brought by City under this section of the Agreement, Developer shall pay all of the costs of
suit; reasonable attorney fees, arbitration costs and such other costs as may be determined by the court or
arbitrator. No failure on the part of City to exercise any right or remedy hereunder shall operate as a
waiver of any other right or remedy that City may have hereunder.
12. Miscellaneous.
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12.1 Compliance with Laws. Developer shall fully comply with all federal, state and
local laws, ordinances and regulations in the performance of this Agreement. Developer shall, at its
own cost and expense, obtain all necessary permits and licenses for the Work, give all necessary
notices, pay all fees and taxes required by law and make any and all deposits legally required by those
public utilities that will serve the development on the Property. Copies and/or proof of payment of said
permits, licenses, notices, fee and tax payments and deposits shall be furnished to the City Engineer
upon request.
12.2 Cooperation. The City, the Authority and the Developer agree to cooperate with
respect to the completion of the financing of the Acquisition Improvements by the Authority through the
levy of the Community Facilities District Special Taxes and issuance of Bonds. The City, the Authority
and the Developer agree to meet in good faith to resolve any differences on future matters which are not
specifically covered by this Agreement.
12.3 General Standard of Reasonableness. Any provision of this Agreement which
requires the consent, approval or acceptance of either party hereto or any of their respective employees,
officers or agents shall be deemed to require that the consent, approval or acceptance not be unreasonably
withheld or delayed, unless the provision expressly incorporates a different standard. The foregoing
provision shall not apply to provisions in the Agreement which provide for decisions to be in the sole
discretion of the party making the decision.
12.4 Notices. Formal written notices, demands, correspondence and communications
between Cit y and Developer shall be sufficiently given if: (a) personally delivered; or (b) dispatched by
next day delivery by a reputable carrier such as Federal Express to the offices of City and Developer
indicated below, provided that a receipt for delivery is provided; or (c) if dispatched by first class mail,
postage prepaid, to the offices of City and Developer indicated below. Such written notices, demands,
correspondence and communications may be sent in the same manner to such persons and addresses as
either party may from time-to-time designate by next day delivery or by mail as provided in this
section.
City: City of Rohnert Park
130 Avram Avenue
Rohnert Park, CA 94928
Attn: City Manager
With a copy to: City of Rohnert Park
130 Avram Avenue
Rohnert Park, CA 94928
Attn: City Attorney
Authority: California Statewide Communities Development Authority
1100 K Street, Suite 101
Sacramento, CA 95814
Attn: Chair
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Developer : University District LLC
500 La Gonda Way, Ste. 100
Danville, CA 94526
Attn: Mr. Kevin Pohlson
Vast Oak Properties L.P.
c/o Quaker Hill Development Corp.
P.O. Box 2240
Healdsburg, CA 95448
Attn: Mr. Craig R. Harrington
Notices delivered by deposit in the United States mail as provided above shall be deemed to have been
serv ed two (2) business days after the date of deposit if addressed to an address within the State of
California, and three (3) business days if addressed to an address within the United States but outside
the State of California.
12.5 Attorney Fees. Should any legal action or arbitration be brought by either party
because of breach of this Agreement or to enforce any provision of this Agreement, the prevailing party
shall be entitled to all costs of suit; reasonable attorney fees, arbitration costs and such other costs as
may be determined by the court or arbitrator.
12.6 Entire Agreement. The terms and conditions of this Agreement constitute the
entire agreement between City and Developer with respect to the matters addressed in this Agreement.
This Agreement may not be altered, amended or modified without the written consent of both parties
hereto.
12.7 Conflict with Other Agreements. Nothing contained herein shall be construed as
releasing the Developer or the City from any condition of development or requirement imposed by any
other agreement between the City and the Developer, and, in the event of a conflicting provision, the
other agreement shall prevail unless the conflicting provision is specifically waived or modified in writing
by the City and the Developer.
12.8 Runs with the Land; Recordation. This Agreement pertains to and shall run with
the Property. Upon execution, this Agreement shall be recorded in the Official Records of Sonoma
County.
12.9 Joint and Several Obligations. The City, the Authorit y and the Developer intend
that UD LLC property and Vast Oak Property L.P. property, including the Acquisition Improvements,
be developed as a physically integrated project. In recognition of such integration, UD LLC and Vast
Oak Property L.P. agree that t hey shall be jointly and severally liable for all obligations of the
Developer under this Agreement.
12.10 Assignment. The obligations and rights of the parties to this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their respective successors, but those
rights and obligations shall not be assignable, transferable or delegable, except pursuant to the terms
hereof, without the written consent of the other parties hereto, and any attempted assignment, transfer
or delegation thereof which is not made pursuant to the terms hereof shall be void.
12.11 Time is of the Essence. Time is of the essence of this Agreement and of each and
every term and condition hereof.
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12.12 Severability. If any provision of this Agreement is held, to any extent, invalid,
the remainder of this Agreement shall not be affected, except as necessarily required by the invalid
provision, and shall remain in full force and effect.
12.13 Waiver or Modification. Any waiver or modification of the provisions of
this Agreement must be in writing and signed by the authorized representative(s) of each Party.
Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by
the other party, or the failure by a party to exercise its rights upon the default of the other party, shall
not constitute a waiver of the party’s right to insist upon and demand strict compliance by the other
party with the terms of this Agreement.
12.14 Relationship of the Parties. Neither Developer nor the Authority nor either’s
contractors, subcontractors, agents, officers, or employees are agents, partners, joint venturers or
employees of City and the Developer's relationship to the City, if any, arising herefrom is strictly that of
an independent contractor. Developer’s contractors and subcontractors are exclusively and solely under
the control and dominion of Developer. Further, there are no intended third party beneficiaries of any
right or obligation assumed by the Parties.
12.15 Binding upon Heirs, Successors and Assigns. The terms, covenants and
conditions of this Agreement shall be binding upon all heirs, successors and assigns of the parties
hereto; provided, however, that this Agreement shall not be binding upon a purchaser or transferee of
any portion of the Property unless this Agreement has been assigned pursuant to Section 11.9, in which
event this Agreement shall remain binding upon Developer.
12.16 Governing Law; Venue. This Agreement shall be construed and enforced in
accordance with the laws of the State of California, without reference to choice of law provisions. Any
legal actions under this Agreement shall be brought only in the Superior Court of the County of
Sacramento, State of California.
12.17 Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed to be an original.
12.18 Interpretation. This Agreement shall be construed according to its fair
meaning, and not strictly for or against any party. No presumptions or rules of inter pretation
based upon the identity of the party preparing or drafting the Agreement, or any part thereof,
shall apply to the interpretation of this Agreement.
12.19 Headings. Section headings in this Agreement are for convenience only and are
not intended to be used in interpreting or construing the terms, covenants or conditions contained in this
Agreement.
12.20 Authority. Each party executing this Agreement on behalf of a party represents
and warrants that such person is duly and validly authorized to d o so on behalf of the entity it purports
to bind and if such party is a partnership, corporation or trustee, that such partnership, corporation or
trustee has full right and authority to enter into this Agreement and perform all of its obligations
hereunder.
12.21 Singular and Plural; Gender. As used herein, the singular of any word includes
the plural, and terms in the masculine gender shall include the feminine.
22
12.22 Sole Agreement. This Agreement, including Exhibit A hereto, constitutes the
sole agreement of the parties and supersedes all oral negotiations and prior writings with respect to the
subject matter hereof.
IN WITNESS WHEREOF, City, Authority, and Developer have executed this Agreement as of
the Effective Date.
"CITY"
CITY OF ROHNERT PARK, a California
municipal corporation
Dated: By:
City Manager
Per Resolution No. 20___-____ adopted by the Rohnert Park
City Council at its meeting of 11-25-2014.
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
23
Dated:
"DEVELOPER"
University District LLC, a Delaware limited
liability company
_______________________________
By:
Title:_______________________
And
Vast Oak Property L.P., a California limited
Partnership
________________________________________
By:
Title:_________________________________
ACKNOWLEDGMENT
"AUTHORITY"
CALIFORNIA STATEWIDE COMMUNITIES
DEVELOPMENT AUTHORITY, a California
joint powers agency
Dated: By:
Authorized Signatory
24
STATE OF CALIFORNIA )
) ss.
COUNTY OF SONOMA )
On __________________ before me, _______________________________________,
(here insert name and title of the officer)
personally appeared _______________________________, who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature ________________________________
(Seal)
ACKNOWLEDGMENT
STATE OF CALIFORNIA )
) ss.
COUNTY OF CONTRA COSTA )
On __________________ before me, _______________________________________,
(here insert name and title of the officer)
personally appeared _______________________________, who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature ________________________________
(Seal)
25
STATE OF CALIFORNIA )
) ss.
COUNTY OF CONTRA COSTA )
On __________________ before me, _______________________________________,
(here insert name and title of the officer)
personally appeared _______________________________, who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within inst rument and acknowledged
to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature ________________________________
(Seal)
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