2015/09/22 City Council Resolution 2015-158RESOLUTION NO. 2015 -158
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
APPROVING A REIMBURSEMENT AGREEMENT BY AND BETWEEN
CITY OF ROHNERT PARK AND CITY VENTURES FOR
ROHNERT PARK CRPUSD SITE PROJECT
WHEREAS, the City of Rohnert Park ( "City ") has received an application from City
Ventures, a California -based homebuilder, for Tentative Subdivision Map, Development Area
Plan, Specific Plan Amendment and General Plan Amendment for a proposed development
project ( "Project ") at APN 045- 253 -018, a 23.10 acre property of within the University District
Specific Plan and currently owned by the Cotati Rohnert Park Unified School District
( "CRPUSD "); and
WHEREAS, City Ventures has agreed to fund the City's efforts in processing their
Project, including but not limited to the negotiation, drafting, and implementation of all
documents, and the payment of all legal costs as may be required for Project approval.
NOW THEREFORE BE IT RESOLVED by the City Council that the City Manager is
hereby authorized and directed to execute a Reimbursement Agreement with City Ventures in a
form substantially similar to Exhibit A attached hereto and incorporated by this reference, for
and on behalf of the City, including authorization for staff to make minor adjustments to this
agreement subject to City Attorney review and approval.
BE IT FURTHER i.a.uvL.ED ...— upon reeciF� ui `%v 1uNct I""' u ui Jli11tc11LJ, 1,11G
Finance Director is authorized to make appropriations and increase budgeted revenue as
necessary to cover the costs of the processing the Project.
DULY AND REGULARLY ADOPTED this 22 °d day of September, 2015.
CITY OF R HNERT PARK
I\J AL
Amy O. Ahanotu, Mayor
ATTEST:
Anne M. Buergler, City Cl rk
Attachment: Exhibit A agreement
CALLINAN: MACKENZIE: STAFFORD: M S -m 4— BELFORTE: A 9 E AHANOTU: J
e AYES: ( tA ) NOES: ( () ) ABSENT: ( I ) ABSTAIN: ( )
Exhibit A to Resolution
REIMBURSEMENT AGREEMENT
THIS REIMBURSEMENT AGREEMENT ( "Agreement ") is made and entered into as of the _ day
of , 2015, by and among the City of Rohnert Park ( "City "), a municipal
corporation, and City Ventures ( "Developer "), a Delaware Limited Liability Company.
1100401161
Developer has submitted or plans to submit an application for development of the Cotati Rohnert Park
Unified School District (CRPUSD) Property within the University District Specific Plan ( "Proposed
Project ") in Rohnert Park, California at 5100 Snyder Lane (APN 045 - 253 -018) and illustrated in
Attachment A, which is attached hereto and incorporated by this reference. Development of the
Proposed Project requires or contemplates the following approvals, documents and processing activities
(collectively, "Project Approvals "):
(1) Approval of permits or waivers from U.S. Army Corps of Engineers, North Coast Regional
Water Quality Control Board, California Department of Fish and Game;
(2) Tentative and final map;
(3) Site specific Hydrology and Drainage study, NPDES General Permit for Stormwater Runoff,
and approval of storm drainage plans by the Sonoma County Water Agency and the City of
Rohnert Park;
(4) one Plan and rvcnneuwiai Review; rrelinunary Development Plan; Rezoning; Specific Plan
Amendment and General Plan Amendment
(5) California Environmental Quality Act review including legal review
(6) Development Agreement
(7) Grading permits, building permits, encroachment permits, transportation permits for
approval of a construction haul route(s);
(8) Implementation of mitigation monitoring program;
(9) Public Improvement, fee credit and reimbursement agreement(s);
(10) Any other approvals, documents, studies, peer review or processing reasonably necessary
to develop the Proposed Project.
A. Prior to the execution of this Agreement, City and Developer had an Informal Reimbursement
Agreement ( "IRA ") pursuant to which City has been processing the Proposed Project and billing
Developer for costs incurred therewith. Additionally, pursuant to the IRA, Developer has previously
deposited with City $25,000.00 to serve as a deposit for City's costs incurred in processing the
Project Approvals As of August 31, 2015, City has incurred $22,475.21 in such costs.
Exhibit A to Resolution
B. Processing of the Proposed Project and processing of the Project Approvals will require City to incur
various costs and expenses including but not limited to staff time, consultant costs, legal fees and
costs, and other assorted costs to process the Proposed Project.
C. In order to facilitate processing of the Project, Developer desires to reimburse City for all of its costs
in connection with the Project Approvals, including but not limited to: legal fees, staff time and
consultant costs incurred in connection with the Project Approvals; costs unbilled and /or
unreimbursed by Developer in connection with Project Approvals covered by this Reimbursement
Agreement; and any litigation costs incurred as a result of the processing of the Proposed Project
and any Project Approvals.
D. The parties to this agreement wish to establish the terms and conditions of such reimbursement
obligation.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and for other good and valuable
consideration, the parties hereby agree as follows:
1. Purpose of Agreement. The purpose of this Agreement is to provide for payment by Developer of all
legal, staff and consultant costs directly or indirectly incurred by City in connection with the
Proposed Project, including legal defense costs, if any.
�. ^vcvcivper �eiiiibur$e�i�ei�t vuiigativ�i. Dcvcivper ,ihai► reimburse City for the following C,.^,StS
(collectively, "Eligible Costs ") incurred in connection with the Proposed Project (including any and all
staff and or legal costs incurred following approval of the Proposed Project to process the project to
completion):
a. City staff time, processing costs, consultant costs and legal fees associated with processing
and implementing all Project Approvals and Mitigation Measures including, but not limited
to: legal fees and costs incurred in connection with the legal defense of any Project
Approvals; legal fees and costs incurred in connection with the negotiation, drafting,
implementation, and defense of the proposed Development Agreement; and fees and costs
payable to outside consultants in connection with the negotiations of the proposed
Development Agreement.
b. A 7% administrative fee charged on costs of outside consultants and legal services which are
included in subsections (a) above; and
c. Fees and costs which City has incurred but which have either not yet been billed for
reimbursement or which have not yet been reimbursed to the City. The City has made a
good faith estimate to summarize all such fees and costs more particularly described in
Attachment B, which is attached hereto and incorporated by this reference. The parties
acknowledge that the figures on Attachment B constitute the City's good faith effort to
Exhibit A to Resolution
summarize all such fees and costs, and Developer agrees that fees or costs which have
inadvertently been omitted from Attachment B, and are subsequently submitted to
Developer, shall be construed as Eligible Costs pursuant to this subsection c.
d. Notwithstanding anything to the contrary in this Agreement, City shall not be responsible
for any Eligible Costs if Developer fails to timely reimburse City as provided in Section 3
below.
Payment of Eligible Costs. City shall submit to Developer a copy of each invoice, bill, demand or
other evidence ( "Invoice ") that the City has incurred for Eligible Costs or other reasonable
substantiation of such Eligible Costs. Each such Invoice of Eligible Costs shall be paid in full by
Developer, without deduction or offset, within thirty (30) calendar days of the date of the Invoice.
Developer covenants and agrees that failure to pay such Eligible Costs to City in full within thirty (30)
calendar days of the date of such Invoice will result in a Late Charge in accordance with Section 4 of
this Agreement, as well as in the cessation of processing the Proposed Project in accordance with
Section 9 of this Agreement. Developer further covenants and agrees that, if as a result of a failure
to pay an Invoice of Eligible Costs, City ceases processing the Proposed Project in accordance with
Section 9, Developer shall not directly or indirectly initiate any litigation against City or its
employees, agents, or volunteers for the cessation or delay in processing the Proposed Project.
4. Late Charge. Developer acknowledges that the late payment of any Eligible Costs will cause City to
incur additional costs, including administration and collection costs and processing and accounting
of expenses ( "Delinquency Costs "). If City has not received payment of all Eligible Costs within thirty
(30) calendar days of the date of the Invoice, the Invoice is considered overdue and Developer shall
immediately be charged a late charge of five percent (5 %) of the delinquent amount. The City is
then authorized to pay such Late Charge from the Deposit along with the amount of the unpaid
Invoice of Eligible Costs in accordance with Section 5. City and Developer recognize that the
expenses that City shall suffer as a result of Developer's failure to make timely payments is difficult
to ascertain and agree that said five percent (5 %) late charge represents a reasonable estimate of
the Delinquency Costs that would be incurred by City. City's acceptance of any such late charge
does not equate with a waiver of Developer's default with respect to the overdue amount, or
prevent City from exercising any rights and remedies available under this Agreement.
5. Security Deposit. Upon signature of this Agreement, Developer shall deposit with City the sum of
Fifty Thousand Dollars ($50,000) in cash or other immediately available funds ( "Deposit "), as security
for Developer's obligation to pay all Eligible Costs, as provided herein. The parties acknowledge
that, in connection with the IRA, Developer deposited Fifty Thousand Dollars ($50,000) cash with the
City, Twenty -Five Thousand Dollars ($25,000) of which was to be used as a security deposit. As of
August 31, 2015, the City had not billed any costs against the IRA security deposit although eligible
costs have been incurred. Funds remaining in the IRA security deposit as of the date of signature of
this Agreement shall be applied to the Deposit required by this Agreement. To the extent additional
funds are required to meet the $50,000 Deposit amount required by this Agreement, Developer
shall deposit such additional amounts upon signature of this Agreement. The Deposit shall be
subject to the following:
Exhibit A to Resolution
a. Developer agrees that if Developer does not pay when due the full amount of each Invoice
of Eligible Costs as provided in Section 3 above, then the City is authorized to pay such
amount from the Deposit, which may include a Late Charge in accordance with Section 4.
b. If the City withdraws from the Deposit, the City shall immediately notify the Developer in
writing that it has used the Deposit to pay all or a portion of the bill, invoice, demand or
other evidence of Eligible Costs, and the Developer shall thereafter have fourteen (14)
calendar days from the date of such written notice to deposit with City, in cash, an amount
necessary to restore the Deposit to its full amount of $50,000. If the Developer fails to
replenish the Deposit within said due date, City shall have no obligation to continue
processing the Proposed Project or to incur any additional Eligible Costs.
c. If the amount of the unpaid Invoice of Eligible Costs and Late Charge exceeds the available
funds in the Deposit, the City shall immediately notify the Developer in writing that it has
used the Deposit to pay all or a portion of the bill, invoice, demand or other evidence of
Eligible Costs, and the Developer shall have fourteen (14) calendar days from the date of
such written notice to deposit with City, in cash, an amount necessary to restore the Deposit
to its full amount of $50,000, plus the full amount of the unpaid Invoice of Eligible Costs and
applicable Late Charge. If the Developer fails to fully replenish the Deposit, pay the full
Invoice of Eligible Costs and applicable Late Charge within said due date, City shall have no
obligation to continue processing the Proposed Project or to incur any additional Eligible
Costs.
d. Developer further covenants and agrees that, if as a result of reduction of the Deposit to
Zcry dollars or failure to replenish, City leases processing the Proposed Project in
accordance with Section 9, Developer shall not directly or indirectly initiate any litigation
against City or its employees, agents, or volunteers for the failure to process or for delay in
processing the Proposed Project following such reduction or failure to replenish.
e. If this Agreement is terminated as provided in Section 8 below and all activities related to
Project Approvals have ceased and the City is not continuing to incur costs related to the
project, City shall return to Developer within ninety (90) calendar days following the
effective date of termination that portion of the Deposit that has not been expended or
committed by City as provided herein, if any.
6. No Commitment as to Future Approvals. Nothing in this Agreement shall be construed as a
commitment to grant or issue any Project Approvals or any other preliminary or formal approvals in
connection with the Proposed Project or to enter into the proposed Development Agreement or any
other agreements. Developer acknowledges and agrees that nothing in this Agreement limits City's
discretion, in any manner, with respect to any aspect of the Proposed Project, the proposed
Development Agreement, or the proposed real estate transaction and fee credit agreements.
Developer agrees that it shall remain obligated to pay all Eligible Costs, regardless of whether any
aspect of the Proposed Project is approved and regardless of whether City and Developer enter into
the proposed Development Agreement or any other agreements. Notwithstanding the
Exhibit A to Resolution
aforementioned, City shall in good faith expeditiously and with all diligence process the Project
Approvals.
7. Indemnity. Developer shall, to the greatest extent authorized by law, defend (with counsel
approved by City, which approval shall not be unreasonably withheld), indemnify, and hold harmless
the City, its officials, employees, volunteers and agents from and against any and all loss, liability,
expenses, claims, costs (including reasonable attorneys' fees), suits and damages of every kind
nature, and description, directly or indirectly arising from any third party legal challenge to the
Project Approvals, or the implementation of this Agreement. Developer may defend against any
such third party legal challenge as a Real Party in Interest using counsel of Developer's choice, and
Developer and City agree to cooperate in the joint defense of the Project Approvals or the
implementation of this Agreement. Developer's indemnity obligations under this Section 7 shall
survive the expiration or termination of this Agreement.
8. Termination. Developer may terminate this Agreement by providing thirty (30) calendar days
written notice to City. If Developer is in default of any of its obligations under this Agreement and
fails to cure such default within fourteen (14) calendar days following written notice from City, then
City may terminate this Agreement by notice to Developer and, thereafter, City shall have no further
obligation to process Project Approvals for the Proposed Project or to continue with negotiation and
drafting of the proposed Development Agreement or any other agreements. Developer shall be
responsible for the payment of Eligible Costs incurred by City up to and including the date of
termination regardless of which party terminates this agreement.
9. Cessation of Processing. Developer acknowledges and agrees that City may, in its sole discretion,
CcaSc processing tG,. n....... -I n.._•.... [-_ n.._•.._ �..,...__ � n
nc nvNOSeu nUJMA, tnc rlUJUULrNpplUVaia, and all negotiations iii connectiuii
with the proposed Development Agreement or any other agreements , in any of the following
events:
a. This Agreement is terminated by either party following notice and expiration of any
applicable cure periods as provided herein; or
b. Developer fails to pay such Eligible Costs to City in full within thirty (30) calendar days of the
date of such Invoice; or
c. The Deposit amount is reduced to zero and Developer fails to replenish the Deposit upon
request by City.
Developer further covenants and agrees that if City ceases processing the Project Approvals for any
of the foregoing reasons, Developer shall not directly or indirectly initiate any litigation against City
or its employees, agents, or volunteer for the failure to process or for delay in processing such
applications following such Agreement termination.
10. Attorneys' Fees. If any legal action is brought by either party to interpret or enforce any terms or
provisions of this Agreement, the prevailing party shall be entitled to its reasonable attorneys' fees
and costs.
Exhibit A to Resolution
11. Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to
the matters set forth herein. Any amendments, modifications, or changes to this Agreement shall be
in writing and signed by both parties.
12. Waivers. Waiver of a breach or default under this Agreement shall not constitute a continuing
waiver or a waiver of a subsequent breach of the same or any other provision of this Agreement.
13. Severability. If any provision of this Agreement or the application of any such provision shall be held
by a court of competent jurisdiction to be invalid, void or unenforceable to any extent, the
remaining provisions of this Agreement and the application thereof shall remain in full force and
effect and shall not be affected, impaired or invalidated.
14. CEQA Processing. Developer acknowledges and agrees that the City is the lead agency under CEQA,
that the environmental review document(s), including but not limited to, an Initial Study,
Environmental Impact Report (including project or program level review, supplemental EIR,
subsequent EIR, or addendum), mitigated negative declaration, negative declaration, and /or notice
of exemption, must reflect City's independent judgment and that City retains full discretion with
respect to all findings to be made in connection therewith.
15. Successors and Assigns. This Agreement shall be binding upon the parties hereto and their
respective heirs, legal representatives, successors and assigns.
16. Jurisdiction. This Agreement shall be administered and interpreted under the laws of the State of
California without regard to its choice of law rules. Jurisdiction and venue of litigation arising from
this Agreement shall be in the County of Sonoma, State of California.
17. Notices. Notices required by this Agreement shall be personally delivered, mailed, postage prepaid,
or mailed via nationally recognized overnight courier as follows:
To the Developer:
City Ventures
444 Spear Street Suite 200
San Francisco, CA 94105
Attn: Ben Besley, Vice President of Development
Tel: (310) 403 -3515
Fax: (949) 336 -4349
with a copy to:
City Ventures
444 Spear Street Suite 200
San Francisco, CA 94105
Attn: Charity Wagner, Director of Development
Exhibit A to Resolution
To the City:
City of Rohnert Park
130 Avram Avenue
Rohnert Park, CA 94928
Attn: City Manager
Tel: (707) 588 -2223
Fax: (707) 794 -9248
with a copy to:
Burke, Williams & Sorensen, LLP
1901 Harrison Street, 9th Floor
Oakland, CA 94612
Attn: Michelle Marchetta Kenyon
Tel: (510) 273 -8780
Fax: (510) 839 -9104
Notices given by personal delivery shall be effective immediately. Notices given by overnight courier
shall be effective upon the date of delivery. Notices given by mail shall be deemed to have been
delivered five days after having been deposited in the United States mail. Any party may change its
address for notice by written notice to the other party in the manner provided in this paragraph 17.
18. Interpretation. The titles to the sections of this Agreement are not a part of this Agreement and
shall have no effect upon the construction or interpretation of any part of this Agreement. As used
in this Agreement, masculine, feminine or neuter gender and the singular or plural number shall
each be deemed to include the others where and when the context so dictates. The word
"including" shall be construed as if followed by the words "without limitation." This Agreement is
the product of negotiations among the parties, and it shall not be construed as if it had been
prepared by one of the parties, but rather as if all of the parties have prepared the same. Any rule of
construction to the effect that ambiguities are to be resolved against the drafting party shall not
apply in interpreting this Agreement.
19. Authority. Each person executing this Agreement covenants and warrants that (i) the party on
whose behalf he or she is signing is duly incorporated or otherwise established or formed and validly
existing under the laws of its state of incorporation, establishment or formation, (ii) the party has
and is duly qualified to do business in California, (iii) the party has full corporate, partnership, trust,
association or other power and authority to enter into this Agreement and to perform all of its
obligations hereunder, and (iv) each person (and all of the persons if more than one signs) signing
this Agreement is duly and validly authorized to do so.
20. Counterparts. This Agreement may be executed in counterparts.
21. Assignment of Claims. To the extent City determines that it may have Claims against any Project
Consultant in connection with the Proposed Project, City may, upon written request by Developer,
assign such Claims to Developer. As used herein, "Project Consultant" means any consultant,
contractor, or other third party whose work product gives rise to any Eligible Cost or who is hired by
City in connection with the Project Approvals; and "Claims" means any and all claims, potential
Exhibit A to Resolution
claims, causes of action, and potential causes of action for breach of contract and /or professional
negligence, regardless of whether such claims or causes of action accrue prior to or after the
effective date of this Agreement.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
Exhibit A to Resolution
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above
written.
[ is
CITY OF ROHNERT PARK,
a Municipal Corporation
City Manager
Per Resolution No. adopted by the Rohnert Park City Council
at its meeting of
APPROVED AS TO FORM:
City Attorney
ATTEST:
City Clerk
DEVELOPER:
City Ventures,
a Delaware Limited Liability Company
(Signature) (Date)
(Print name and title)
Exhibit A to Resolution
ATTACHMENT A
PROPERTY DESCRIPTION
5100 Snyder Lane, Rohnert Park, California
APN 045 - 253 -018
PROPERTY LOCATION: 5100 SNYDER LANE, ROHNERT PARK, CALIFORNIA
APN 045- 253 -018
Legend
's urban Growth Boundary
µ- Ciry Boundary
❑ Parcels
® Subject Property
_ _. .._ .. ROHNERT_PARK EXPY {'as_n anu..C1Cp. I
_. t� jrlZjl 1 8000
Notes
i 1i- t tmstnnaE ctai) ..._.
TNs m is a user ne f E
0.3 p p,13 p.25 Miles of 9e rated s ahc output from an im map mapping sea aixl
rs for reference only. Data layers Urat appear on u, s rnap mt or may nol. bo
°. . °. accurate currem or othen»se rebable.
........ THIS MAP IS NOT TO BE USED FOR NAVIGATION
Exhibit A to Resolution
leAIre[o:1MI4-LIU J
PROJECT EXPENSES
ATTACHMENT B: Proiect Expenses
Applicant: City Ventures
Project: Rohnert Park School Site
Address: 5100 Snyder Lane, Rohnert Park, CA APN: 045 - 253 -018
8/13/14 - 8/31/15
EXPENSE SUMMARY
Sub - Project / Permit Records Expenses
PLSD2014 -0007: Subdivision / Tentative Map - Major
$2,899.70
PLDP2014 -0004: Development Area Plan
$2,257.05
PLSP2014 -0005: Specific Plan Amendment
$17,061.66
PLGP2014 -0007: General Plan Amendment
$256.80
TOTAL EXPENSES
$22,475.21
EXPENSE DETAILS
This accounting includes services performed by City staff and consultant work performed, invoiced and
paid by City.
PLSD2014- 0007: Subdivision / Tentative Map - Major
Company /Organization
Invoice No.
Invoice Date
Amount
Dudek
................................................................................................................................................................................................................................
20144757
10/3/14
840.00
CSG Consultants, Inc.
. . . . . . . . . . . .. . . . . . .. . . . . . . . . .. . . . . . . . . . . . . . . . .. . . .
28522
11/21/14
...............................
160.00
. . . . . . . . . . . . .. . . . . . . . . . . . . . . . .. . . .
CSG Consultants, Inc.
.....................................:...............:..:::..............:........................................:....................................................................................................:........
. . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . .
28382
. . . . . . . . . . .. . . . . . . ................... . . . . . . . .. . ..
12/1/14
. . . .. .. . . . . . .. ... . . . . . . . . . . . . .. . . . .
560.00
CSG Consultants, Inc.
. . . . . . . . . . . .. . . . . . . . . . . . . . . . .. . . . . . . . . . .. . . . . .. .
29229
2/3/15
...............................
80.00
. . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . .. . . .
CSG Consultants, Inc.
. . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . .. . . . . .
30211
....................... - .......................................................
. . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .
7/10/15
............................
. . . . . . . . . . . . .. . . . . . . . . . . . . . .. . . . . . .
320.00
, ..,............,...............
Subtotal
1,960.00
City Administrative Fee
7%
137.20
Subtotal Consulting Services 2,097.20
City Staff Amount
August 2014 - August 2015: Application intake and routing; meetings Ian /mop review; project
...�...,. Application routing; meetings, �a�, P. ur , ; proj2
accounting 802.50
" "Subtotal .................. 802.50
Subtotal City Staff 802.50
Total Expenses: PLSD2014-00071 $2,899.70
PLDP2014 -0004: Development Area Plan
Company /Organization Invoice No. Invoice Date Amount
Dudek 20141757 10/3/14 840.00
................................................................................................................................................................................................................................ ...............................
Subtotal 840.00
City Administrative Fee 7% 58.80
Subtotal Consulting Services 898.80
City Staff Amount
August 2014 - August 2015: Application intake and routing; completeness letter; meeting
coordination, email updates; delivery hydrology study to applicant; Will Serve Letter; model
Development Agreement (DA), DA conditions, coordination; reimbursement agreement draft; project
accounting 1,358.25
............................................................................................................................................................................................................................... ...............................
Subtotal 1,358.25
Subtotal City Staff 1,358.25
Total Expenses: PLDP2014-00041 $2,257.05
Exhibit 8 - CRPUSD RA—rev 2015 -09 -11 Page 1 of 1