2017/01/24 City Council Resolution 2017-013RESOLUTION NO. 2017-013
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
APPROVING A WATER CAPACITY CHARGE CREDIT AGREEMENT BY AND
BETWEEN THE CITY OF ROHERT PARK, UNIVERSITY DISTRICT LLC AND
VAST OAK PROPERTIES L.P.
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, on October 25, 2016, the City Council of the City of Rohnert Park adopted
its Ordinance No. 900 approving a Second Amendment to the Amended and Restated
Development Agreement ("Second Amendment"); and
WHEREAS, the Second Amendment requires the Developer to make payments towards
the construction of the City's Water Tank Number 8 so that the City can construct these
improvements to support the development of the University District Project; and
WHEREAS, on November 22, 2016, the City Council of the City of Rohnert Park
("City") adopted Resolution No 2016-112 adopting its Water Capacity Charge Program and
finding this action Categorically Exempt under the California Environmental Quality Act; and
WHEREAS, the Water Capacity Charge Program includes the construction of Water
Tank Number 8 and the Developer's payments required by the Second Amendment are
prepayments of that portion of the Water Capacity Charges for University District applicable to
Water Tank Number 8, which would otherwise be due at the time building permits are pulled;
and
WHEREAS, the City and Developer desire to enter into a Water Capacity Charge Credit
Agreement to recognize the prepayment of Water Capacity Charges, the credit due to Developer
and the applicability and transferability of these Water Capacity Charge Credits only to the
development of the project as described in the Development Agreement; and
WHEREAS, approval of this agreement is categorically exempt from environmental
review pursuant to California Environmental Quality Act guidelines section 15061(b)(3) because
the payment of Water Capacity Charges provides a means of mitigating environmental impacts
which have been identified in other environmental analyses including the University District
Environmental Impact Report; and
WHEREAS, Developer will be required to pay the full total amount of the Water
Capacity Charges applicable to the University District that are not applicable to Water Tank
Number 8.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Rohnert
Park that it does hereby authorize and approve the Water Capacity Charge Credit Agreement by
and between the City of Rohnert Park, University District LLC and Vast Oak Properties L.P.
attached as Exhibit A.
BE IT FURTHER RESOLVED that the City Manager is hereby authorized and
directed to execute the Water Capacity Charge Agreement and any appropriate Water Capacity
Charge Assignments, 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 241h day of January, 2017.
CITY OF ROHNERT PARK
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Jake ae nzie, Mayor
ATTEST:
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oAnne M. Buergler, City Krk
Attachment: Exhibit A
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2017-013
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.
WATER CAPACITY CHARGE CREDIT AGREEMENT
BY AND BETWEEN THE CITY OF ROHNERT PARK
AND UNIVERSITY DISTRICT LLC AND VAST OAK PROPERTIES L.P.
This WATER CAPACITY CHARGE AGREEMENT (the "Agreement") is made and
entered into on this day of 2017 (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, as
amended (the "Development Agreement").
B. On October 25, 2016, the City Council of the City of Rohnert Park adopted its
Ordinance No. 900 approving a Second Amendment to the Amended and Restated Development
Agreement with the Developer recorded in the Official Records of Sonoma County as Document
No. 2016106715 (the "Second Amendment").
C. The Second Amendment requires the Developer to make payments towards the
construction of the City's Water Tank Number 8 in the amount of Five Million Dollars
($5,000,000) ("Prepayment Amount") so that the City can construct these improvements to
support the development of the University District Project. The Developer has paid the
Prepayment Amount.
D. On November 22, 2016, the City Council of the City of Rohnert Park adopted its
Resolution No. 2016-112 establishing its Water Capacity Charge Program. Resolution No. 2016-
112 provides that the Water Capacity Charge Program shall be administered in accordance with
Section 3.28 of the Municipal Code, which allows the developer to receive "credits" for charges
that have been prepaid or for constructing infrastructure.
E. Water Tank Number 8 is included in the City's Water Capacity Charge Program
for the University District.
F. City and Developer desire to enter into an agreement regarding (1) Developer's
prepayment of Water Capacity Charges; (2) credits applicable to Developer up to the Prepayment
Amount; and (3) the assignment of the Water Capacity Charge Credits, as set forth in Section 3
below.
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 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").
Water Capacity Chgj Credit.
3.1. Source and Method of Credit. Subject to the limitations set forth in
this Section 3, Developer, or any approved assignee, shall receive Water Capacity Charge
Credits, as set forth below, for payments received towards the construction of Water Tank
Number 8 up to the Prepayment Amount:
For 274 single family lots in Vast Oak Phase 1 (West) which have not
yet pulled building permits, an amount not to exceed $2,369.95 per lot
or a total of $649,366.30
For 837 single family lots in Vast Oak Phase 2 (East), Vast Oak Phase 3
(North) and the Phase 4 UDLLC property, an amount not to exceed
$4,669.46 per lot or a total of $3,908,338.02
For the multifamily parcel in Vast Oak Phase 3 (North), scheduled for
the development of 218 affordable units, an amount not to exceed
$442,295.68.
The City shall offer credits only up to the Prepayment Amount.
3.2 Implementation of Water Capacity Charge Credit. The Water
Capacity Charge Credits shall be applied against the Water Capacity Charges that would
otherwise be applicable to the Project, as the result of construction on the Property.
Developer shall be entitled to receive Water Capacity Charge Credits at the time of
issuance of building permits for construction on the Property. The City shall keep an
accounting of the balance of Water Capacity Charge Credits based upon the Prepayment
Amount minus the credits applied to building permits on the Property. The Water
Capacity Charge 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 Water Capacity Charge Credits among components of the Project. Developer may
authorize the assignment of all or portions of the Water Capacity Charge Credit balance
in writing, with the prior written consent of the City in accordance with Section 6.6
below, provided that Water Capacity Charge Credits may not be assigned outside the
boundaries of the Property and the Water Capacity Charge Credits are fully utilized on
the development of the Property. Developer acknowledges and agrees that payment of the
Water Capacity Charge Credits is limited to the development of the Property and not the
entire real property described in the Development Agreement.
3.3 Expiration of Water Capacity Charge Credit. The Water Capacity
Charge Credit reflects prepayment by the Developer of Water Capacity Charges that
would otherwise be due at the time building permits are issued for structures on the
Property. City's obligation to apply and extend credits shall expire immediately when the
available balance of the Prepayment Amount reaches $0.00, as determined by City in its
reasonable discretion.
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 Water
Capacity Charges to support the construction of Water Tank Number 8 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 Agreemciit; 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 Water Capacity Charge Credit
balance without 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 teens 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, among other
available remedies, City may 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 waives- of any other right or remedy that City may have
hereunder.
6. 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 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 snail, 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: University District LLC
500 La Gonda Way, Ste. 100
Danville, CA 94526
Attn: Mr. Devin Pohison
Vast Oak Properties L.P.
c/o Quaker Hill Development Corp.
P.O. Box 2240
Healdsburg, CA 95448
Attn: Ms. Dianne Anderson
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 Fees. Should any legal action 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, and such other
costs as may be determined by the court.
6.4. Entire Agreement. The terns 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 only 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 similar to that attached as Exhibit 2.
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 [lie 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.
6.13. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original.
6.14. Intejl?retation. 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.
"CITY"
CITY OF ROHNERT PARK, a California
Dated:
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
municipal corporation
In
City Manager
Per Resolution No. 2017- adopted by the Rohnert Park
City Council at its meeting of January 24, 2017.
Dated:
"DEVELOPER"
University District LLC,
By:
Kevin Pohlson
Vice President
BV:
Gregory Glenn
Chief Financial Officer
Vast Oak Properties L.P.
By:
Diane Anderson
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/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
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 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)
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/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)
Exhibit 1
Property Subject to the Agreement
Exhibit 2
Form of Assignment
(form on following page)
EXHIBIT 2
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
University District LLC
500 La Gonda Way, Suite 100
Danville, California 94526
Attention: John Ryan
ASSIGNMENT OF WATER CAPACITY CHARGE CREDITS AND CONSENT OF CITY
This Assignment of Fee Credits (the "Assignment") is made and entered into as of
201_ ("Assignment Date"), by and between ("Assignee"),
VAST OAK PROPERTIES L.P., a California limited partnership, and UNIVERSITY
DISTRICT LLC, a Delaware limited liability company ("Assignor"), with reference to
the following facts.
RF.C'TTAT.S
A. Assignor is the owner of certain real property located in the City of Rohnert Park,
Sonoma County, State of California (the "Overall Property").
B. Pursuant to that certain Water Capacity Charge Agreement (the "WC Charge
Agreement") entered into by Assignor and the City of Rohnert Park (the "City") dated
as of January — 2017 and recorded on 2017 as document number
in the Official Records of Sonoma County, Assignor has earned certain fee credits (the
"WC Charge Credits") in the amount of Five Million and 00/100 Dollars ($5,000,000.00)
in connection with Assignor's prepayment of fees under the City's Water Capacity
Charge Program ("Water Capacity Charges").
C. Assignor has now entered into an Agreement for Purchase and Sale of Real Property
and Joint Escrow Instructions with Assignee, dated as of (the "Purchase
Agreement"), pursuant to which, among other things, Assignor has agreed to transfer
and convey to Assignee all of Assignor's rights in and to the portion of the Overall
Property described on Exhibit "A" attached hereto (the "Property") and cause Assignor
to assign WC Charge Credits applicable to each of the lots (each, a "Lot")
comprising the Property
D. In light of the Purchase Agreement, Assignor now desires to assign, transfer and
convey to Assignee, all right, title and interest of Assignor in and to the WC Charge
Credits applicable to the Property.
AGREEMENT
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which is hereby acknowledged, the parties hereto agree as follows:
1. Assignment. Effective as of the Assignment Date, Assignor hereby grants,
transfers, conveys and assigns to Assignee all of Assignor's rights, title, and
interests in and to the WC Charge Credits in the amount of
Dollars ($) per Lot within the Property to the extent that
such WC Charge Credits can be applied by Assignee against Assignee's WC
Charges for the Lots acquired by Assignee at the time the building permit for the
applicable Lot is issued.
2. Attorneys' Fees. If Assignor or Assignee bring any action against the
other for the enforcement or interpretation of this Assignment, the non -
prevailing party shall pay to the prevailing party a reasonable sum for attorneys'
fees and costs.
3. Counterparts. This Assignment may be executed in counterparts, each of
which shall be deemed an original, and all of which shall taken together be
deemed one document.
4. Survival. This Assignment and the provisions hereof shall inure to the
benefit of and be binding upon the parties to this Assignment and their
respective successors, heirs and permitted assigns.
(Signature Page Follows.)
IN WITNESS WHEREOF, the parties have executed this Assignment as of the day and
year first above written.
"ASSIGNOR"
UNIVERSITY DISTRICT LLC,
a Delaware limited liability company
By:
Name:
Title:
By:
Name:
Title:
"VAST OAK"
VAST OAK PROPERTIES,
a California limited partnership
"ASSIGNEE"
By:
Name:
Title:
By: Quaker Hill Development Corporation,
a California corporation,
its general partner
By:
Name:
Its:
CERTIFICATION OF WATER CAPACITY CHARGE CREDITS AND CONSENT
TO ASSIGNMENT OF WATER CAPACITY CHARGE CREDIT
By its signature below, the City hereby certifies that Assignor has the Water Capacity
Charge Credits described in the Assignment available for assignment and hereby
consents to the assignment of the PFFP Fee Credits to Assignee as provided herein.
[CITYCONSENT SIGNATURE BLOCK
By:
Name:
Title: City Manager
EXHIBIT "A"
DESCRIPTION OF PROPERTY
(To be attach