2015/09/08 City Council Resolution 2015-146RESOLUTION NO. 2015 -146
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
AUTHORIZING AND APPROVING A PUBLIC FACILITIES FEE CREDIT
AGREEMENT WITH UNIVERSITY DISTRICT LLC AND VAST OAK PROPERTIES
L.P. AND FINDING THE ACTION EXEMPT UNDER THE
CALIFORNIA ENVIRONMENTAL QUALITY ACT
WHEREAS, on November 22, 2011, the City Council of the City of Rohnert Park
( "City ") adopted Resolution No 2011 -112 updating its Public Facilities Fees and finding this
action Categorically Exempt under the California Environmental Quality Act; and
WHEREAS, on April 22, 2014, the City Council of the City of Rohnert Park adopted
Ordinance Number 878 approving a Development Agreement ( "Development Agreement ")
between the City of Rohnert Park and Vast Oak Properties L.P. and the University District LLC
( "Developer "); and
WHEREAS, the Developer Agreement requires the Developer to make prepayments of
Public Facilities Fees, at the City's direction, in order to fund the construction of the Eastside
Trunk Sewer Phase 3 and Snyder Lane Widening Projects; and
WHEREAS, the City has awarded the construction contract for the Eastside Trunk
Sewer Phase 3 and Snyder Lane Widening Projects and required the Developer to make the
prepayments of Public Facilities Fees; and
WHEREAS, the City and Developer desire to enter into a Public Facilities Fee Credit
Agreement to recognize the prepayment of Public Facilities Fees, the Public Facilities Fee
Credits due to Developer and the applicability and transferability of these Public Facilities Fee
Credits only to development of the project as described in the Development Agreement.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Rohnert
Park that it does hereby authorize and approve the Public Facilities Fee Credit Agreement with
University District LLC and Vast Oak Properties L.P. attached as Exhibit A.
BE IT FUTHER RESOLVED that based on the evidence presented at the duly noticed
public meeting of August 25, 2015, the City Council of the City of Rohnert Park finds that this
action is categorically exempt from environmental review pursuant to California Environmental
Quality Act guidelines section 15061(b)(3) because the payment of Public Facilities Fees
provides a means of mitigating environmental impacts which have been identified in other
environmental analyses including the General Plan EIR.
BE IT FURTHER RESOLVED that the City Manager is hereby authorized and directed
to execute the Public Facilities Fee Credit Agreement, in substantially similar form to that
agreement attached hereto and incorporated by this reference as Exhibit A, subject to minor
modification by the City Manager or City Attorney.
BE IT FURTHER RESOLVED that the Finance Director is hereby authorized and
directed to take all actions necessary to effectuate the intent of the Agreement.
DULY AND REGULARLY ADOPTED this 8th day of September, 2015.
CITY OF ROHNERT PARK
r
Amy O. Ahanotu, Mayor
ATTEST:
JoAnne M. Buergler, City C1ek
Attachment: Exhibit A
CALLINAN: MACKENZIE:
Al-e Ale
STAFFORD: BELFORTE: AHANOTU: a '"
AYES: NOES: ( 0 ) ABSENT: ABSTAIN:
2015-
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL, TO:
City of Rohnert Park
130 Avram Avenue
Rohnert Park, California 94928 -2486
Attention: City Clerk
Exhibit A to Resolution
(Space Above This Line for Recorder's Use Only)
Exempt from recording fee per Gov. Code § 27383.
PUBLIC FACILITIES FEE CREDIT AGREEMENT
BY AND BETWEEN THE CITY OF ROHNERT PARK
AND UNIVERSITY DISTRICT LLC AND VAST OAK PROPERTIES L.P.
THIS PUBLIC FACILITIES FEE CREDIT AGREEMENT (the "Agreement ") is made and
entered into on this day of 2015 (the "Effective Date ") by and between
UNIVERSITY DISTRICT LLC, a Delaware limited liability corporation ( "University District "), VAST
OAK PROPERTIES L.P., a California limited partnership ( "Vast Oak"), and the CITY OF ROHNERT
PARK, a California municipal corporation ( "City "), with reference to the following facts and intentions.
University District and Vast Oak are collectively referred to herein as "Developer."
RECITALS
A. On April 22, 2014, the City Council of the City of Rohnert Park adopted its Ordinance
No. 878 approving an Amended and Restated Development Agreement with the Developer recorded in
the Official Records of Sonoma County as Document No. 2014051817 (the "Development
Agreement ").
B. The Development Agreement requires that the Developer make payments towards the
construction of the City's Eastside Trunk Sewer and Snyder Lane Widening Projects so that the City
can construct these improvements to support the Project.
C. Both the Eastside Trunk Sewer and the Snyder Lane Widening Projects are included in
the City's Public Facilities Finance Plan ( "PFFP "). The Development Agreement provides that
Developer is entitled to receive credits for Public Facilities Financing Plan fees, defined as "PFFP
Credits" in Section 4.03(C) of the Development Agreement, for those improvements included in the
OAK #4812- 8077 -5463 v1
PFFP and constructed by Developer. The Development Agreement further provides that Developer
shall not assign the PFFP Credits without the written authorization of City.
D. The Developer has submitted building plans and begun the building plan check
process.
E. City and Developer desire to enter into an agreement regarding (1) Developer's
prepayment of PFFP fees; (2) the transfer of the PFFP Credits to the developer of the Project, as defined
in Section 2 below.
AGREEMENT
NOW, THEREFORE, in consideration of the faithful performance of the terns 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 are hereby
incorporated into and form a material part of this Agreement.
2. Property Subject to Agreement. The property which is the subject of this Agreement
( "Property") is located in the City of Rohnert Park, Sonoma County, California, and is described in
Exhibit 1, attached hereto and incorporated by this reference. The Property is only a portion of the real
property subject to the Development Agreement. The City has approved the development of residential
subdivision on the Property (the "Project ").
3. Public Facilities Fee Credit.
3.1. Source and Method of Credit. Subject to the limitations set forth in this
Section 3, Developer, or any subsequent developer of the Property, shall receive PFFP Credits for
payments received towards the construction of the Eastside Trunk Sewer Phase 3 and Snyder Lane
Widening Projects in an amount not to exceed $6,636,244, based upon the payment schedule
included as Exhibit 2. Should Developer not complete payments in accordance with the schedule,
City shall offer credits only in the amount received by City.
3.2 Implementation of Public Facilities Fee Credit. The PFFP Credits shall
be applied against the Public Facilities Fees that would otherwise be applicable to the Project,
as the result of construction on the Property. Developer shall be entitled to receive PFFP
Credits at the time of issuance of building permits for construction on the Property. The City
shall keep an accounting of the balance of PFFP Credits based upon the total prepayment
received from Developer and the credits applied to building permits on the Property. The PFFP
Credits shall run with the land and may be credited only for development of the Project on the
Property, provided that Developer may allocate the use of the PFFP Credits among components
of the Project. Developer may authorize the assignment of all or portions of the PFFP Credit
balance in writing, with the consent of the City, provided that PFFP Credits may not be
assigned outside the boundaries of the Property and the PFFP Credits are fully utilized on the
development of the Property. Developer acknowledges and agrees that payment of the PFFP
OAK #4812 - 8077 -5463 v1
Credits is limited to the development of the Property and not the entire real property described
in the Development Agreement.
3.3 Expiration of Public Facilities Fee Credit. The Public Facilities Fee
Credit reflects prepayment by the Developer of Public Facilities Fees that would otherwise be
due at the time building permits are issued for structures on the Property. City's obligation to
extend credits shall expire upon the available balance reaching $0.00.
4. Community Facilities District; Intent to Reimburse. City and Developer
acknowledge that the California Statewide Communities Development Authority has formed a
Community Facilities District that includes the Property. Payment of Public Facilities Fees is
potentially eligible for funding through a Community Facilities District and Developer's costs
may be reimbursed with the proceeds of Community Facilities District bonds at some future
date.
Breach of Agreement; Remedies.
5.1. 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 payment in accordance with the payment
schedule.
(2) Developer assigns the Agreement without the prior written consent of City.
(3) Developer assigns all or a portion of the NP P N urecltt balance wztnout the prior
written consent of the City.
(4) 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.
(5) Developer or Developer's contractors, subcontractors, agents, employees or
assignees, fail to comply with any terms or conditions of this Agreement.
The City may serve written notice of breach and default upon Developer.
5.2. Remedies. Should the Developer breach this Agreement, City's remedy all be
to hold all available credits for prepaid funds received under this Agreement for the benefit of the
Property. 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.
Miscellaneous.
6.1 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
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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.
6.2. Notices. Formal written notices, demands, correspondence and
communications between City 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
Developer: U-liversity Drstrrl t LLIr
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 served 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.
6.3 Attorney. 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
OAK #4812- 8077 -5463 v1
costs as may be determined by the court or arbitrator.
6.4. 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.
6.5. 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.
6.6. Transfers; Assignments. Developer may assign its obligations under this
Agreement to successor owner(s) of the Property Subject to the Agreement with the prior written
approval of the City. In connection with any such assignment, Developer and its assignee shall
execute and deliver to City a written assignment and assumption agreement in a form acceptable to
the City Attorney.
6.7. Time is of the Essence. Time is of the essence of this Agreement and of each
and every term and condition hereof.
6.8. 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.
6.9. 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.
6.10. Relationship of the Parties. Neither Developer nor Developer'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.
6.11. 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 7.6, in which
event this Agreement shall remain binding upon Developer.
6.12. 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
Sonoma, State of California.
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6.13. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed to be an original.
6.14. Interpretation. This Agreement shall be construed according to its fair
meaning, and not strictly for or against any party. No presumptions or rules of interpretation
based upon the identity of the party preparing or drafting the Agreement, or any part thereof,
shall apply to the interpretation of this Agreement.
6.15. 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.
6.16. Authority. Each party executing this Agreement on behalf of a party represents
and warrants that such person is duly and validly authorized to do 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.
6.17 Joint and Several Liability. University District and Vast Oak agree to and shall
be jointly and severally liable for all obligations of Developer under this Agreement.
IN WITNESS WHEREOF, City and Developer have executed this Agreement as of the
Effective Date.
(signatures on following page)
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Dated:
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
OAK 44812- 8077 -5463 v1
"CITY"
CITY OF ROHNERT PARK, a California
municipal corporation
City Manager
Per Resolution No. 2015 - adopted by the Rohnert Park
City Council at its meeting of September 8, 2015.
Dated:
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"DEVELOPER"
University District LLC,
By:
Kevin Pohlson
Vice President
By:
Gregory Glenn
Chief Financial Officer
Vast Oak Properties L.P.
By:
Craig R. Harrington
General Partner
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
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 /iieritilCir aut horiZed capacity(ies), artd
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)
OAK #4812- 8077 -5463 v1
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF CONTRA COSTA
On
before me,
) ss.
(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)
OAK #4812 - 8077 -5463 v1
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF SONOMA
On
before me,
) ss.
(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)
OAK #4812 - 8077 -5463 v1
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