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2017/05/23 City Council Agenda Packet City of Rohnert Park  130 Avram Avenue  Rohnert Park, California 94928 PHONE: (707) 588-2227 FAX: (707) 794-9248  WEB: www.rpcity.org ROHNERT PARK CITY COUNCIL Rohnert Park Financing Authority (RPFA) Successor Agency to the Community Development Commission (CDC) JOINT REGULAR MEETING AGENDA Tuesday, May 23, 2017 Open Session: 5:00 p.m. MEETING LOCATION: CITY HALL - COUNCIL CHAMBER 130 Avram Avenue, Rohnert Park, California The Rohnert Park City Council welcomes your attendance, interest and participation at its regular city meetings scheduled on the second and fourth Tuesdays of each month at 5:00 p.m. in the Council Chamber. City Council/RPFA agendas and minutes may be viewed at the City’s website: www.rpcity.org. PUBLIC HEARINGS: Council/RPFA may discuss and/or take action on any or all of the items listed on this agenda. If you challenge decisions of the City Council or the Rohnert Park Financing Authority of the City of Rohnert Park in court, you may be limited to raising only those issues you or someone else raised at public hearing(s) described in this agenda, or in written correspondence delivered to the City of Rohnert Park at, or prior to the public hearing(s). RIGHT TO APPEAL: Judicial review of any city administrative decision pursuant to Code of Civil Procedure Section 1094.5 may be had only if a petition is filed with the court no later than the deadlines specified in Section 1094.6 of the California Code of Civil Procedure, which generally limits the time within which the decision may be challenged to the 90th day following the date that the decision becomes final. SIMULTANEOUS MEETING COMPENSATION DISCLOSURE (Government Code § 54952.3): Members of the City Council receive no additional compensation as a result of convening this joint meeting of the City Council and the Rohnert Park Financing Authority. PUBLIC COMMENTS: Provides an opportunity for public comment on items not listed on the agenda, or on agenda items if unable to comment at the scheduled time (limited to three minutes per appearance and a 30 minute total time limit, or allocation of time determined by Presiding Officer based on number of speaker cards submitted). PLEASE FILL OUT A SPEAKER CARD PRIOR TO SPEAKING ANNOUNCEMENT: Please turn off all pagers, cellular telephones and all other communication devices upon entering the Council Chamber. Use of these devices causes electrical interference with the sound recording and TV broadcast systems. Mission Statement “We Care for Our Residents by Working Together to Build a Better Community for Today and Tomorrow.” City of Rohnert Park Joint Regular Meeting Agenda May 23, 2017 for City Council/RPFA/CDC Successor Agency Page 2 of 6 1. CITY COUNCIL/RPFA/SUCCESSOR AGENCY JOINT REGULAR MEETING - CALL TO ORDER/ROLL CALL (Ahanotu __ Belforte__ Callinan __ Stafford __ Mackenzie __) 2. PLEDGE OF ALLEGIANCE 3. PRESENTATIONS A. Mayor’s Proclamation: Recognizing May 2017 as Community Resilience Challenge Month B. Mayor’s Certificate of Recognition: Recognizing Faith Adam, Margot Godolphin, and Ann Rasmussen for their Volunteer Work with the Art Committee at Rohnert Park Library C. Sonoma County Presentation on Health and Human Services 4. DEPARTMENT HEAD BRIEFING A. Development Services: Building Award of Excellence for Customer Service from the Construction Coalition B. Community Services: 2017 Farmers Market and Party on the Plaza 5. PUBLIC COMMENTS Persons wishing to address the Council on any Consent Calendar item or on City business not listed on the Agenda may do so at this time. Each speaker will be allotted three minutes. Those wishing to address the Council on any report item listed on the Agenda should submit a “Speaker Card” to the City Clerk before announcement of that agenda item. 6. CONSENT CALENDAR All items on the Consent Calendar will be considered together by one or more action(s) of the City Council and/or the Rohnert Park Financing Authority and Successor Agency to the Community Development Commission, whichever is applicable, unless any Council Member or anyone else interested in a consent calendar item has a question about the item. A. Approval of Minutes for: 1. City Council Special Meeting, May 2, 2017 2. City Council Special Meeting, May 3, 2017 3. City Council/RPFA/Successor Agency Joint Regular Meeting, May 9, 2017 B. Acceptance of Reports for: 1. City Bills/Demands for Payment dated May 23, 2017 2. Successor Agency to the CDC Bills/Demands for Payment dated May 23, 2017 3. RPFA- Cash Report for Month Ending April 2017 4. Housing Successor Agency- Cash Report for Month Ending April 2017 5. Successor Agency- Cash Report for Month Ending April 2017 C. City Council Resolutions for Adoption: 1. 2017-62 Authorizing the Martin Avenue Rehabilitation Project (Project No. 2017-15) and Related Actions City of Rohnert Park Joint Regular Meeting Agenda May 23, 2017 for City Council/RPFA/CDC Successor Agency Page 3 of 6 2. 2017-63 Approving a Public Improvement Agreement for Vast Oak East Utility Improvements with the University District LLC and Vast Oak L.P. and Finding this Action Covered Under the Environmental Impact Report for the University District Specific Plan as Amended 3. 2017-64 Authorizing the City Manager to Execute a Memorandum of Understanding with City of Rohnert Park Foundation to Distribute Community Investment Recurring Contributions from the Graton Mitigation Fund 4. 2017-65 Authorizing the City Manager to Execute a Memorandum of Understanding with Cotati-Rohnert Park Unified School District to Distribute Community Investment Recurring Contributions from the Graton Mitigation Fund D. Authorize the City Manager to Execute the Professional Services Agreement for Water Quality Analytical Services with Alpha Analytical Laboratories Inc. for a not to exceed amount of $175,000 E. Authorize the City Manager to Execute a Contract Amendment for Independent Audit Services with Macias, Gini and O’Connell LLP for an additional two years with a not to exceed contract amount of $165,000 Council Motion/Vote 7. Discussion and Direction on Updates to the City’s Smoking Ordinance A. Staff Report B. Public Comments C. Council discussion/direction 8. Update on Abatement Activities at the Former State Farm Office Site A. Staff Report B. Public Comments C. Council discussion/direction 9. Consideration of Community Center Digital Billboard Use Policy A. Staff Report B. Public Comments C. Resolution for Adoption: 1. 2017-66 Adopting a Community Center Digital Billboard Use Policy a. Council motion/discussion/vote 10. Sonoma County Mayors’ & Councilmembers’ Association Matters Consideration of Supporting “Letters of Interest” for Appointments to Vacancies by the Mayors’ and Councilmembers’ Association Board of Directors on June 8, 2017 A. Mayors’ and Councilmembers’ Association Appointments 1. ABAG Executive Board for a two year term ending in June 2019 2. ABAG Executive Board (Alternate) for a two year term ending in June 2019 City of Rohnert Park Joint Regular Meeting Agenda May 23, 2017 for City Council/RPFA/CDC Successor Agency Page 4 of 6 3. Sonoma County Agricultural Preservation & Open Space District Citizens Advisory Committee for a two year term ending June 2019 4. NCRA Board for a two year term ending in June 2019 (must be filled by a Cloverdale or Healdsburg Mayor or Councilmember) B. Public Comment C. Council discussion/action 11. PUBLIC HEARING: (NO EARLIER THAN 6PM) Conduct a Weed Abatement Protest Hearing to Consider Abatement of Weeds Constituting a Nuisance A. Staff Report B. Conduct Public Hearing C. Resolution for Adoption: 1. 2017-67 Ordering the City Manager to Abate Nuisances Existing within the City of Rohnert Park a. Council motion/discussion/vote 12. Annual Review of Development Agreements for Sonoma Mountain Village, Southeast Specific Plan, University District Specific Plan, & Stadium Lands and Consideration of Requested Extensions for University District Development Agreement A. Staff Report B. Public Comments C. Council discussion/direction 13. CLOSED SESSION A. Recess to Closed Session in Conference Room 2A to Consider: 1. Conference with Labor Negotiators (Government Code §54957.6) Agency designated representative(s): Darrin Jenkins, City Manager Employee Organizations: a. Service Employees' International Union (SEIU) b. Rohnert Park Public Safety Managers' Association (RPPSMA) c. Unrepresented Employees 2. Conference with Real Property Negotiators (Government Code §54956.8) Property: 6250 State Farm Drive, Rohnert Park, CA (APN: 143-051-021) City Negotiator: Darrin Jenkins, City Manager Negotiating Parties: Rhonda Deringer, Keegan & Coppin Company, Inc. Under Negotiation: Price and Terms of Payment 3. Conference with Legal Counsel – Anticipated Litigation - Significant exposure to litigation pursuant to Government Code §54956.9(d)(2): (Two Cases) B. Reconvene Joint Regular Meeting Open Session in Council Chamber C. Report On Closed Session (Government Code § 54957.1) 14. Consideration of Second Amendment to Employment Agreement Between the City of Rohnert Park and Brian Masterson for Public Safety Director Services A. Staff Report B. Public Comments City of Rohnert Park Joint Regular Meeting Agenda May 23, 2017 for City Council/RPFA/CDC Successor Agency Page 5 of 6 C. Resolution for Adoption: 1. 2017-68 Approving the Second Amendment to the 2014 Employment Agreement Between the City of Rohnert Park and Brian Masterson for Public Safety Director Services a. Council motion/discussion/vote 15. COMMITTEE / LIAISON / OTHER REPORTS This time is set aside to allow Council members serving on Council committees or on regional boards, commissions or committees to present a verbal report on the activities of the respective boards, commissions or committees on which they serve. No action may be taken. A. Standing Committee Reports B. Liaison Reports 1. Russian River Watershed Association (4/27) 2. Chamber of Commerce (Board of Directors) (5/16) 3. Senior Citizens Advisory Committee (5/18) C. Other Reports 16. COMMUNICATIONS Copies of communications have been provided to Council for review prior to this meeting. Council Members desiring to read or discuss any communication may do so at this time. No action may be taken except to place a particular item on a future agenda for Council consideration. 17. MATTERS FROM/FOR COUNCIL Prior to agenda publication, any Councilmember may place an item on this portion of the agenda. Upon the concurrence of two Councilmembers, the item may be added to a subsequent agenda for deliberation and action. In accordance with the Brown Act, at the City Council meeting, Councilmembers may not add items hereunder, except for brief reports on his or her own activities or brief announcements regarding an event of community interest. A. Council Consideration of Smart Cites Connect Conference and Expo in Austin, Texas on June 25-28, 2017 18. PUBLIC COMMENTS Persons wishing to address the Council on City business not listed on the Agenda may do so at this time. Each speaker will be allotted three minutes. Those wishing to address the Council on any report item listed on the Agenda should submit a “Speaker Card” to the City Clerk before announcement of that agenda item. 19. ADJOURNMENT City of Rohnert Park Joint Regular Meeting Agenda May 23, 2017 for City Council/RPFA/CDC Successor Agency Page 6 of 6 NOTE: Time shown for any particular matter on the agenda is an estimate only. Matters may be considered earlier or later than the time indicated depending on the pace at which the meeting proceeds. If you wish to speak on an item under discussion by the Council which appears on this agenda, after receiving recognition from the Mayor, please walk to the rostrum and state your name and address for the record. Any item raised by a member of the public which is not on the agenda and may require Council action shall be automatically referred to staff for investigation and disposition which may include placing on a future agenda. If the item is deemed to be an emergency or the need to take action arose after posting of the agenda within the meaning of Government Code Section 54954.2(b), Council is entitled to discuss the matter to determine if it is an emergency item under said Government Code and may take action thereon. DISABLED ACCOMMODATION: If you have a disability which requires an interpreter or other person to assist you while attending this City Council meeting, please contact the City Clerk’s Office at (707) 588-2227 at least 72 hours prior to the meeting to ensure arrangements for accommodation by the City. Please notify the City Clerk’s Office as soon as possible if you have a visual impairment requiring meeting materials to be produced in another format (Braille, audio-tape, etc.) AGENDA REPORTS & DOCUMENTS: Copies of all staff reports and documents subject to disclosure that relate to each item of business referred to on the agenda are available for public inspection at City Hall located at 130 Avram Avenue, during regular business hours, Monday through Friday from 8:00 am to 5:00 pm. Any writings or documents subject to disclosure that are provided to all, or a majority of all, of the members of the City Council regarding any item on this agenda after the agenda has been distributed will also be made available for inspection at City Hall during regular business hours. CERTIFICATION OF POSTING OF AGENDA I, Caitlin Saldanha, Deputy City Clerk for the City of Rohnert Park, declare that the foregoing agenda for the May 23, 2017 Joint Regular Meeting of the Rohnert Park City Council/RPFA was posted and available for review on May 18, 2017, at Rohnert Park City Hall, 130 Avram Avenue, Rohnert Park, California 94928. The agenda is also available on the City web site at www.rpcity.org, Executed this 18th day of May, 2017 at Rohnert Park, California. ___________________________________________ Caitlin Saldanha, Deputy City Clerk PPP rrr ooo ccc lll aaa mmm aaa ttt iii ooo nnn PROCLAMATION OF THE COUNCIL OF THE CITY OF ROHNERT PARK Endorsing THE COMMUNITY RESILIENCE CHALLENGE Whereas , the City of Rohnert Park is concerned about the health and well-being of its residents and seeks to create a healthy, sustainable, and livable community; and Whereas , in seven years of the annual Community Resilience Challenge, over 5,000 people across Sonoma County have committed to complete nearly 31,000 actions to save water, grow food, conserve energy, reduce waste and build community; and Whereas , Daily Acts is a key partner, providing programs and services that educate residents, students, businesses, and community leaders about sustainable practices; and Whereas , the City of Rohnert Park can achieve its climate goals by growing and eating fresh, local garden produce, greening its transportation and creating energy and water- efficient homes, businesses, schools, and communities. Now, Therefore be it Resolved , that the City of Rohnert Park commits to actively supporting the Community Resilience Challenge and its goal to inspire action to save water, grow food, conserve energy, reduce waste, and build community, and as a partner pledges to support the Community Resilience Challenge activities within the county, and use county communications media and programming to promote the cultivation of healthy food, waste reduction, and energy and water-efficiency. Be it Further Resolved that , that the City of Rohnert Park actively declares the month of May Community Resilience Challenge Month in the City of Rohnert Park, as we work together for a healthier, more vibrant and viable future. In Witness Whereof, this 23rd day of May, CITY OF ROHNERT PARK Jake Mackenzie, MAYOR Honoring F AITH A DAM for her Volunteer Work with the Art Committee AA ss MM aa yy oo rr ,, aa nn dd oo nn bb ee hh aa ll ff oo ff tt hh ee CC ii tt yy CC oo uu nn cc ii ll oo ff tt hh ee CC ii tt yy oo ff RR oo hh nn ee rr tt PP aa rr kk ,, II dd oo hh ee rr ee bb yy rr ee cc oo gg nn ii zz ee aa nn dd hh oo nn oo rr FF aa ii tt hh AA dd aa mm ff oo rr dd ee dd ii cc aa tt ii nn gg 11 00 yy ee aa rr ss oo ff ss ee rr vv ii cc ee rr ee ss pp ee cc tt ii vv ee ll yy tt oo tt hh ee RR oo hh nn ee rr tt PP aa rr kk CC oo mm mm uu nn ii tt yy tt hh rr oo uu gg hh hh ee rr vv oo ll uu nn tt ee ee rr ww oo rr kk ww ii tt hh tt hh ee AA rr tt CC oo mm mm ii tt tt ee ee .. OO vv ee rr tt hh ee yy ee aa rr ss ,, tt hh ee AA rr tt CC oo mm mm ii tt tt ee ee hh aa ss ss uu cc cc ee ss ss ff uu ll ll yy oo rr gg aa nn ii zz ee dd aa nn dd pp rr oo dd uu cc ee dd mm aa gg nn ii ff ii cc ee nn tt AA rr tt aa nn dd PP hh oo tt oo SS hh oo ww ss aa tt tt hh ee ll ii bb rr aa rr yy .. WW ee cc oo mm mm ee nn dd tt hh ee AA rr tt CC oo mm mm ii tt tt ee ee ff oo rr tt hh ee ii rr cc oo ll ll aa bb oo rr aa tt ii vv ee ee ff ff oo rr tt ss aa nn dd cc oo mm mm ii tt mm ee nn tt tt oo ss uu pp pp oo rr tt ii nn gg aa rr tt ii ss tt ss aa nn dd pp hh oo tt oo gg rr aa pp hh ee rr ss bb yy pp rr oo vv ii dd ii nn gg aa ww oo nn dd ee rr ff uu ll ww aa yy oo ff ss hh oo ww cc aa ss ii nn gg tt hh ee ii rr aa rr tt ww oo rr kk ff oo rr ll ii bb rr aa rr yy vv ii ss ii tt oo rr ss tt oo vv ii ee ww aa nn dd ee nn jj oo yy .. WW ee dd ee ee pp ll yy aa pp pp rr ee cc ii aa tt ee tt hh ee ee ff ff oo rr tt ss aa nn dd dd ee dd ii cc aa tt ii oo nn oo ff tt hh ee AA rr tt CC oo mm mm ii tt tt ee ee vv oo ll uu nn tt ee ee rr ss aa nn dd tt hh ee ii rr pp aa ss ss ii oo nn tt oo ii nn ss tt ii ll ll tt hh ee cc ee ll ee bb rr aa tt ii oo nn oo ff tt hh ee aa rr tt ss ii nn oo uu rr cc oo mm mm uu nn ii tt yy .. Signed this 23rd day of May, 2017 By: _________________________________________ Jake Mackenzie , Mayor Honoring M ARGOT G ODOLPHIN for her Volunteer Work with the Art Committee AA ss MM aa yy oo rr ,, aa nn dd oo nn bb ee hh aa ll ff oo ff tt hh ee CC ii tt yy CC oo uu nn cc ii ll oo ff tt hh ee CC ii tt yy oo ff RR oo hh nn ee rr tt PP aa rr kk ,, II dd oo hh ee rr ee bb yy rr ee cc oo gg nn ii zz ee aa nn dd hh oo nn oo rr MM aa rr gg oo tt GG oo dd oo ll pp hh ii nn ff oo rr dd ee dd ii cc aa tt ii nn gg 11 00 yy ee aa rr ss oo ff ss ee rr vv ii cc ee rr ee ss pp ee cc tt ii vv ee ll yy tt oo tt hh ee RR oo hh nn ee rr tt PP aa rr kk CC oo mm mm uu nn ii tt yy tt hh rr oo uu gg hh hh ee rr vv oo ll uu nn tt ee ee rr ww oo rr kk ww ii tt hh tt hh ee AA rr tt CC oo mm mm ii tt tt ee ee .. OO vv ee rr tt hh ee yy ee aa rr ss ,, tt hh ee AA rr tt CC oo mm mm ii tt tt ee ee hh aa ss ss uu cc cc ee ss ss ff uu ll ll yy oo rr gg aa nn ii zz ee dd aa nn dd pp rr oo dd uu cc ee dd mm aa gg nn ii ff ii cc ee nn tt AA rr tt aa nn dd PP hh oo tt oo SS hh oo ww ss aa tt tt hh ee ll ii bb rr aa rr yy .. WW ee cc oo mm mm ee nn dd tt hh ee AA rr tt CC oo mm mm ii tt tt ee ee ff oo rr tt hh ee ii rr cc oo ll ll aa bb oo rr aa tt ii vv ee ee ff ff oo rr tt ss aa nn dd cc oo mm mm ii tt mm ee nn tt tt oo ss uu pp pp oo rr tt ii nn gg aa rr tt ii ss tt ss aa nn dd pp hh oo tt oo gg rr aa pp hh ee rr ss bb yy pp rr oo vv ii dd ii nn gg aa ww oo nn dd ee rr ff uu ll ww aa yy oo ff ss hh oo ww cc aa ss ii nn gg tt hh ee ii rr aa rr tt ww oo rr kk ff oo rr ll ii bb rr aa rr yy vv ii ss ii tt oo rr ss tt oo vv ii ee ww aa nn dd ee nn jj oo yy .. WW ee dd ee ee pp ll yy aa pp pp rr ee cc ii aa tt ee tt hh ee ee ff ff oo rr tt ss aa nn dd dd ee dd ii cc aa tt ii oo nn oo ff tt hh ee AA rr tt CC oo mm mm ii tt tt ee ee vv oo ll uu nn tt ee ee rr ss aa nn dd tt hh ee ii rr pp aa ss ss ii oo nn tt oo ii nn ss tt ii ll ll tt hh ee cc ee ll ee bb rr aa tt ii oo nn oo ff tt hh ee aa rr tt ss ii nn oo uu rr cc oo mm mm uu nn ii tt yy .. Signed this 23rd day of May, 2017 By: _________________________________________ Jake Mackenzie , Mayor Honoring A NN R ASMUSSEN for her Volunteer Work with the Art Committee AA ss MM aa yy oo rr ,, aa nn dd oo nn bb ee hh aa ll ff oo ff tt hh ee CC ii tt yy CC oo uu nn cc ii ll oo ff tt hh ee CC ii tt yy oo ff RR oo hh nn ee rr tt PP aa rr kk ,, II dd oo hh ee rr ee bb yy rr ee cc oo gg nn ii zz ee aa nn dd hh oo nn oo rr AA nn nn RR aa ss mm uu ss ss ee nn ff oo rr dd ee dd ii cc aa tt ii nn gg 11 00 yy ee aa rr ss oo ff ss ee rr vv ii cc ee rr ee ss pp ee cc tt ii vv ee ll yy tt oo tt hh ee RR oo hh nn ee rr tt PP aa rr kk CC oo mm mm uu nn ii tt yy tt hh rr oo uu gg hh hh ee rr vv oo ll uu nn tt ee ee rr ww oo rr kk ww ii tt hh tt hh ee AA rr tt CC oo mm mm ii tt tt ee ee .. OO vv ee rr tt hh ee yy ee aa rr ss ,, tt hh ee AA rr tt CC oo mm mm ii tt tt ee ee hh aa ss ss uu cc cc ee ss ss ff uu ll ll yy oo rr gg aa nn ii zz ee dd aa nn dd pp rr oo dd uu cc ee dd mm aa gg nn ii ff ii cc ee nn tt AA rr tt aa nn dd PP hh oo tt oo SS hh oo ww ss aa tt tt hh ee ll ii bb rr aa rr yy .. WW ee cc oo mm mm ee nn dd tt hh ee AA rr tt CC oo mm mm ii tt tt ee ee ff oo rr tt hh ee ii rr cc oo ll ll aa bb oo rr aa tt ii vv ee ee ff ff oo rr tt ss aa nn dd cc oo mm mm ii tt mm ee nn tt tt oo ss uu pp pp oo rr tt ii nn gg aa rr tt ii ss tt ss aa nn dd pp hh oo tt oo gg rr aa pp hh ee rr ss bb yy pp rr oo vv ii dd ii nn gg aa ww oo nn dd ee rr ff uu ll ww aa yy oo ff ss hh oo ww cc aa ss ii nn gg tt hh ee ii rr aa rr tt ww oo rr kk ff oo rr ll ii bb rr aa rr yy vv ii ss ii tt oo rr ss tt oo vv ii ee ww aa nn dd ee nn jj oo yy .. WW ee dd ee ee pp ll yy aa pp pp rr ee cc ii aa tt ee tt hh ee ee ff ff oo rr tt ss aa nn dd dd ee dd ii cc aa tt ii oo nn oo ff tt hh ee AA rr tt CC oo mm mm ii tt tt ee ee vv oo ll uu nn tt ee ee rr ss aa nn dd tt hh ee ii rr pp aa ss ss ii oo nn tt oo ii nn ss tt ii ll ll tt hh ee cc ee ll ee bb rr aa tt ii oo nn oo ff tt hh ee aa rr tt ss ii nn oo uu rr cc oo mm mm uu nn ii tt yy .. Signed this 23rd day of May, 2017 By: _________________________________________ Jake Mackenzie , Mayor Expanding Services in Sonoma County Oscar Chavez Assistant Director Brian Vaughn Division Director And Behavioral Health will be collocating services later in 2017 Rohnert Park Residents and Income Based Programs People in Poverty (2011-15) People below 125% (2011-15) 4/2017 Medi-Cal Clients 4/2017 CalFresh Clients 4/2017 CalWORKs Clients Rohnert Park 6,340 8,774 9,318 2,612 376 Federal Poverty Threshold (FPT) and Eligibility Criterias 2017 FPT for Family of Four U100 FPT $23,850 U125 FPT $29,813 CalFresh (130% FPT) $31,005 Medi-Cal (138% FPT) $32,913 61,202 75,401 112,339 5,148 6,826 9,318 0 5,000 10,000 15,000 - 20,000 40,000 60,000 80,000 100,000 120,000 FY11-12 FY12-13 FY13-14 FY14-15 FY15-16 FY16-17 Ro h n e r t P a r k C l i e n t s Al l I n d i v i d u a l C l i e n t s Monthly Average Medi-Cal/CMSP Clients Medi-Cal/CMSP Clients Rohnert Park Clients Estimated Trendline Growth of Medical Insurance Services Medi-Cal Clients by Jurisdiction 30% 27% 24% 22% 22% 22% 21% 21% 19% 18% 15% 0% 5% 10% 15% 20% 25% 30% 35% April 2017 Percent of People on Medi-Cal Compiled by George Malachowski, 707.565.5815, HSD PREE. April 2017 CalWIN data extracts with 2011-2015 ACS 5-year estimates. Services to Rohnert Park Residents Individuals Served Benefit Amount Time Frame Medical Insurance 9,300 n/a April 2017 Food Assistance 2,600 $300,000 April 2017 Cash Aid 400 $88,000 April 2017 In Home Support 560 n/a April 2017 Job Seeker Services 60 n/a April 2017 Child Protective Services 1,300 n/a 2016 Adult Protective Services 440 n/a May ‘16-April ‘17 Veterans Services 340 n/a May ‘16-April ‘17 Individuals may have received multiple services during these time periods. Numbers rounded for ease of reading. Thank You and Questions 3 •Fridays (June 2 through August 25) •Farmer’s Market (ACE Farmer’s Markets) starts at 5:00pm •Bands play from 5:30 pm-8:00 pm •Vendors •Children’s Activities •Food Trucks 4 6/2 Choppin’ Broccoli 6/9 Funky Dozen 6/16 Pulsators 6/23 Second Line 6/30 Stax City 5 7/7 The Igniters 7/14 Rolling Blackouts 7/21 Jami Jameson Band 7/28 Rotten Tomatoes 6 8/4 Court N’ Disaster 8/11 Rhythm Rangers 8/18 Mr. Blackwell & the M.B.A.’s 8/25 Poyntlyss Sistars presents Divas & Doo Wops Item No. 6A1 MINUTES OF THE ADJOURNED JOINT SPECIAL MEETING OF THE CITY OF ROHNERT PARK City Council Rohnert Park Financing Authority Successor Agency to the Community Development Commission Tuesday, May 2, 2017 Rohnert Park City Hall, Council Chamber 130 Avram Avenue, Rohnert Park, California 1. CITY COUNCIL/RPFA/SUCCESSOR AGENCY TO THE CDC ADJOURNED JOINT SPECIAL MEETING - CALL TO ORDER/ROLL CALL Mayor Mackenzie reconvened the April 25th Adjourned Joint Special Meeting at 11:40 am, the notice for which being legally noticed on April 20 and 25, 2017. Present: Jake Mackenzie, Mayor Pam Stafford, Vice Mayor Amy O. Ahanotu, Councilmember Gina Belforte, Councilmember Joseph T. Callinan, Councilmember Absent: None. Staff present: City Manager Jenkins, Assistant City Manager Schwartz, City Clerk Buergler, Finance Director Howze, Director of Public Works and Community Services McArthur, Director of Public Safety Masterson, Development Services Director Pawson, Community Services Manager Bagley, Community Services Supervisor Herman, Senior Analyst L. Tacata, Theater Manager Abravaya, Project Coordinator Zwillinger, General Services Supervisor Kelley, Management Analyst E. Tacata, and Supervising Accountant Smith. 2. PUBLIC COMMENTS None. 3. BUDGET STUDY SESSION #2 FOR REVIEW OF BUDGET FY 2017-18 A. City Council B. Administration 1. City Manager’s Office 2. City Clerk’s Office C. Human Resources D. Development Services 1. Housing E. Public Works 1. Fleet Services 2. Water City of Rohnert Park Adjourned Joint Special Meeting Minutes May 2, 2017 for City Council/Rohnert Park Financing Authority/Successor Agency Page 2 of 4 3. Sewer 4. Recycled Water F. Public Safety G. Animal Services H. City Attorney’s Office Items 3.A-3.H were heard at the City Council Joint Special Meeting, Budget Study Session #1 on April 25, 2017. I. General Fund Overview City Manager Jenkins and Finance Director Howze presented the overview. City Manager Jenkins presented the staff proposed budget additions from Budget Session 1. Slide 148 should say “Less Dev Svc Budget” not “Less Debt Svc Budget.” Council supported (none opposed) moving forward with the City Council and staff proposed budget additions and funding options which include an increase in City Council Training budget, addition of a Code Compliance Officer in Development Services, a Building Maintenance Worker instead of a Landscape Maintenance Worker in Public Works and minimizing the CERBT transfer. Recessed 12:16 p.m. Reconvened 12:50 p.m. City Council supported (Belforte and Ahanotu opposed) an analysis of City Council pay and regulations be agendized at a future City Council meeting. J. Other General Government City Manager Jenkins briefed the Council on Redwood Empire Municipal Insurance Fund’s (REMIF) financials. City Council (none opposed) directed staff to agendize REMIF at a future City Council meeting. 1. Workers’ Compensation City Manager Jenkins and Senior Analysist L. Tacata presented a Workers’ Compensation trend analysis. 2. Successor Agency Finance Director Howze presented the item. Councilmember Callinan stepped away from the dais 1:33 p.m. and returned 1:34 p.m. Staff will move forward with the Successor Agency budget as presented. K. Five-Year Capital Improvement Plan City Manager Jenkins and Management Analyst E. Tacata presented the item. Staff will move forward with the Capital Improvement Plan budget as presented and include providing additional $300,000 toward pathway replacement and park court repairs. City of Rohnert Park Adjourned Joint Special Meeting Minutes May 2, 2017 for City Council/Rohnert Park Financing Authority/Successor Agency Page 3 of 4 Mayor Mackenzie stepped away from the dais at 1:48 p.m. and Vice Mayor Stafford assumed the gavel. Mayor Mackenzie returned at 1:52 p.m. and reassumed the gavel. Mayor Mackenzie stepped away from the dais at 2:35 p.m. and Vice Mayor Stafford assumed the gavel. Mayor Mackenzie returned at 2:39 p.m. and reassumed the gavel. L. Golf Course Director of Public Works and Community Services McArthur and General Services Supervisor Kelley presented the item. Staff will move forward with the Golf Course budget as presented. M. Casino Programs Senior Analyst L. Tacata presented the item. Vice Mayor Stafford stepped away from the dais 2:50 p.m. and returned 2:54 p.m. Staff will move forward with the Casino Programs budget as presented. N. Economic Development Assistant City Manager Schwartz presented the item. Staff will move forward with the Economic Development budget as presented. O. Information Technology IT Operations Manager Rowley presented the item and noted a correction to slide presentation, the IT Datacenter will not be located at the Westside Fire Station. Staff will move forward with the Information Technology budget as presented. Councilmember Callinan stepped away from the dais 3:27 p.m. and returned 3:29 p.m. P. Finance Finance Director Howze presented the item. Councilmember Callinan stepped away from the dais 3:44 p.m. and returned 3:50 p.m. Staff will move forward with the Finance budget as presented. Q. Community Services Community Services Manager Bagley and Director of Public Works and Community Services McArthur presented the item. Councilmember Ahanotu stepped away from the dais 3:52 p.m. and returned 3:56 p.m. Staff will move forward with the Community Services budget as presented including using $200,000 in Infrastructure Contingency for a cooling system at the Callinan Sports and Fitness Center and an increase of $40,000 for an expansion in community events. City of Rohnert Park Adjourned Joint Special Meeting Minutes May 2, 2017 for City Council/Rohnert Park Financing Authority/Successor Agency Page 4 of 4 R. Performing Arts Center Theater Manager Abravaya, Director of Public Works and Community Services McArthur, and Community Services Manager Bagley presented the item. Staff will move forward with the Performing Arts Center budget as presented with the addition of using $120,000 from the unrestricted endowment for a sound system and a lighting system. The final Budget will come back to City Council for adoption in June 2017 with adjustments discussed at the Budget Study Sessions. 4. ADJOURNMENT Mayor Mackenzie adjourned the Adjourned Joint Special Meeting at 4:58 pm. _____________________________________ __________________________________ JoAnne M. Buergler, City Clerk Jake Mackenzie, Mayor City of Rohnert Park City of Rohnert Park Item No. 6A2 MINUTES OF THE SPECIAL MEETING OF THE CITY OF ROHNERT PARK CITY COUNCIL Wednesday, May 3, 2017 Rohnert Park Community Center, Multi-Use Room 5401 Snyder Lane, Rohnert Park, California 1. CITY COUNCIL SPECIAL MEETING - CALL TO ORDER/ROLL CALL Mayor Mackenzie called the Special Meeting to order at 6:28 pm, the notice for which being legally noticed on April 27, 2016. Present: Jake Mackenzie, Mayor Pam Stafford, Vice Mayor Amy O. Ahanotu, Councilmember Gina Belforte, Councilmember Joseph T. Callinan, Councilmember Absent: None. Staff present: City Manager Jenkins, Assistant City Manager Schwartz, Finance Director Howze, Development Services Director Pawson, Director of Public Safety Masterson, Director of Public Works and Community Services McArthur, City Clerk Buergler, Executive Assistant to the City Manager Drolet, Senior Analyst Tacata, Public Safety Commander Bates, Public Safety Commander Taylor, IS Operations Manager Rowley, IS Analyst Son, Crime Analyst Kempf, Human Resources Analyst Rankin, Fire Marshall Thompson, Planning Manager Beiswenger, Community Services Manager Bagley, Community Services Supervisor Herman, and Deputy City Clerk Saldanha. 2. INFORMAL TOWN HALL MEETING Staff members hosted various open house booths providing information to community members on city services. A presentation was given by City Manager Jenkins. City Council and staff addressed public comments regarding current issues in Rohnert Park. 3. ADJOURNMENT Mayor Mackenzie adjourned the Special Meeting at 8:12 p.m. _____________________________________ __________________________________ Caitlin Saldanha, Deputy City Clerk Jake Mackenzie, Mayor City of Rohnert Park City of Rohnert Park Item No. 6A3 MINUTES OF THE JOINT REGULAR MEETING OF THE CITY OF ROHNERT PARK City Council Rohnert Park Financing Authority Successor Agency to the Community Development Commission Tuesday, May 9, 2017 Rohnert Park City Hall, Council Chamber 130 Avram Avenue, Rohnert Park, California 1. CITY COUNCIL/RPFA/SUCCESSOR AGENCY TO THE CDC JOINT REGULAR MEETING - CALL TO ORDER/ROLL CALL Mayor Mackenzie called the joint regular meeting to order at 5:01 pm, the notice for which being legally noticed on May 4, 2017. Present: Jake Mackenzie, Mayor Pam Stafford, Vice Mayor Amy O. Ahanotu, Councilmember Gina Belforte, Councilmember Joseph T. Callinan, Councilmember Absent: None. Staff present: City Manager Jenkins, Assistant City Manager Schwartz, Deputy City Attorney Herrington, Development Services Director Pawson, Director of Public Works and Community Services McArthur, Finance Director Howze, Human Resources Director Perrault, Public Safety Director Masterson, Civil Engineer Garrett, Fire Marshal Thompson, Senior Analyst L. Tacata and Deputy City Clerk Saldanha. 2. PLEDGE OF ALLEGIANCE Led by Vice Mayor Stafford. 3. PRESENTATIONS A. Mayor’s Certificate of Recognition: Recognizing 2017 Citizens Academy Graduates and Laura Svindal for CPR Efforts in a Life Threatening Situation Mayor Mackenzie presented a certificate of recognition to Laura Svindal and congratulated the 2017 Citizens Academy Graduates. Laura Svindal thanked Council and commended her coworker, Randy, for helping her save a life. City of Rohnert Park Joint Regular Meeting Minutes May 9, 2017 for City Council/Rohnert Park Financing Authority/Successor Agency Page 2 of 8 4. SSU STUDENT REPORT Erin Jasper, Legislative Representative, Sonoma State University Associated Students, Inc. (SSU ASI) reported SSU Donation Day will be held on May 12th - May 13th and commencement ceremonies will be held on both May 20th - May 21st. 5. DEPARTMENT HEAD BRIEFING City Manager Jenkins reported on the May 3rd Town Hall Meeting. City Manager Jenkins announced that the Public Safety Department will be holding a meeting on Thursday, May 11th from 6 p.m. - 8 p.m. at the Community Center regarding crime statistics for J, K, L, M and R sections. 6. PUBLIC COMMENTS Abby Davidian expressed her concerns regarding the City’s current smoking ordinance and requested that Council consider amendments in order to reflect how the City of Cotati handles multi-family developments. ACTION: By Consensus (none opposed), City Council directed staff to bring this item back at a future meeting. 7. CONSENT CALENDAR A. Approval of Minutes for: 1. City Council/RPFA/Successor Agency Joint Regular Meeting, April 25, 2017 2. City Council Special Meeting, April 25, 2017 B. Acceptance of Reports for: 1. RPFA- Cash Report for Month Ending March 2017 2. Housing Successor Agency- Cash Report for Month Ending March 2017 3. Successor Agency- Cash Report for Month Ending March 2017 4. City Bills/Demands for Payment dated May 9, 2017 C. City Council Resolutions for Adoption: 1. 2017-051 Declaring Weeds to be a Nuisance and Providing for Weed Abatement Pursuant to Government Code Sections 39560 through 39588; Article 2 – Alternative Procedures for Weed and Rubbish Abatement and Setting a Public Hearing PULLED BY CALLINAN 2. 2017-052 Authorizing the City Manager to Execute the Third Amendment to the Communications Site Lease Agreement with T-Mobile West LLC for Telecommunication Equipment Located at Public Safety Main Station, 500 City Center Drive, Rohnert Park 3. 2017-053 Approving the City of Rohnert Park Current Pay Rates and Ranges Revised April 25, 2017 PULLED BY MACKENZIE (requested by City Manager Jenkins) 4. 2017-054 Authorizing and Approving a First Amendment to Foxtail Golf Course Lease for Bunker Renovation PULLED BY CALLINAN D. Authorize the City Manager to Consent to an Assignment and Assumption Agreement for the Southeast Specific Plan Development Agreement City of Rohnert Park Joint Regular Meeting Minutes May 9, 2017 for City Council/Rohnert Park Financing Authority/Successor Agency Page 3 of 8 ACTION: Moved/seconded (Stafford/Callinan) to approve the Consent Calendar. Motion carried unanimously by the following 5-0 vote: AYES: Ahanotu, Belforte, Callinan, Stafford, and Mackenzie, NOS: None, ABSTAINS: None, ABSENT: None. C. City Council Resolutions for Adoption: 1. 2017-051 Declaring Weeds to be a Nuisance and Providing for Weed Abatement Pursuant to Government Code Sections 39560 through 39588; Article 2 – Alternative Procedures for Weed and Rubbish Abatement and Setting a Public Hearing Recommended Action(s): Adopt a Resolution Declaring Weeds to be a Nuisance and Providing for Weed Abatement Pursuant to Government Code Sections 39560 through 39588; Article 2 – Alternative Procedures for Weed and Rubbish Abatement and Setting a Public Hearing on May 23, 2017. Councilmember Callinan discussed weed abatement issues regarding the former State Farm Office site and requested to agendize the topic at a future meeting. Director of Development Services Pawson and Deputy City Attorney Herrington answered questions from Councilmembers. ACTION: Moved/seconded (Callinan/Mackenzie) to adopt Resolution 2017-051 Declaring Weeds to be a Nuisance and Providing for Weed Abatement Pursuant to Government Code Sections 39560 through 39588; Article 2 – Alternative Procedures for Weed and Rubbish Abatement and Setting a Public Hearing. Council also directed staff to agendize an item regarding an update on the weed abatement order regarding the former State Farm Office site at a future City Council meeting. Motion carried unanimously by the following 5-0 vote: AYES: Ahanotu, Belforte, Callinan, Stafford, and Mackenzie, NOS: None, ABSTAINS: None, ABSENT: None. 3. 2017-053 Approving the City of Rohnert Park Current Pay Rates and Ranges Revised April 25, 2017 Recommended Action(s): Adopt a Resolution Approving the City of Rohnert Park Current Pay Rates and Ranges Revised April 25, 2017. Human Resources Director Perrault provided an oral report on the compensation changes regarding the salaries of executive staff members. ACTION: Moved/seconded (Mackenzie/Stafford) to adopt Resolution 2017-053 Approving the City of Rohnert Park Current Pay Rates and Ranges Revised April 25, 2017. City of Rohnert Park Joint Regular Meeting Minutes May 9, 2017 for City Council/Rohnert Park Financing Authority/Successor Agency Page 4 of 8 Motion carried unanimously by the following 5-0 vote: AYES: Ahanotu, Belforte, Callinan, Stafford, and Mackenzie, NOS: None, ABSTAINS: None, ABSENT: None. 4. 2017-054 Authorizing and Approving a First Amendment to Foxtail Golf Course Lease for Bunker Renovation Recommended Action(s): Adopt a Resolution Authorizing and Approving a First Amendment to Foxtail Golf Course Lease for Bunker Renovation. For the record, Councilmember Callinan requested to amend the staff report to add the South Course to the second sentence under Analysis that reads “The one exception is the bunkers on the North Course.” Councilmember Callinan also stated that the sand depth shall be maintained no less than four inches (4”) deep at the sole expense of the Tenant and asked City Manager Jenkins if this section of the lease terms applies to both the North and South courses. City Manager Jenkins confirmed that the lease agreement covers both the North and South courses. ACTION: Moved/seconded (Callinan/Stafford) to adopt Resolution 2017-054 Authorizing and Approving a First Amendment to Foxtail Golf Course Lease for Bunker Renovation. Motion carried unanimously by the following 5-0 vote: AYES: Ahanotu, Belforte, Callinan, Stafford, and Mackenzie, NOS: None, ABSTAINS: None, ABSENT: None. 8. Review Water Rate Study Draft Report and Provide Direction Regarding Rate Adjustment Timelines and Notices Director of Public Works and Community Services McArthur and Bob Reed, Reed Group Inc. presented the item. Recommended Action(s): Review and receive the Water Rate Study Draft Report and provide direction on the recommended rate adjustment and actions for the City’s water rate adjustment process including: 1) Direct staff to send a Notice of Public Hearing to City of Rohnert Park water utility customers, and 2) Approve rate adjustment timeline described herein, including public hearing date and recommended effective date of new water rates. Public Comments: Paul Libeu discussed the issue of sending notices to individual owners who live on properties belonging to a Home Owner’s Association (HOA). ACTION: Moved/seconded (Mackenzie/Stafford) to direct staff to move forward with the recommended actions including setting a Public Hearing on July 11, 2017 and sending a Notice of Hearing to water utility customers in Rohnert Park. Motion carried unanimously by the following 5-0 vote: AYES: Ahanotu, Belforte, Callinan, Stafford, and Mackenzie, NOS: None, ABSTAINS: None, ABSENT: None. City of Rohnert Park Joint Regular Meeting Minutes May 9, 2017 for City Council/Rohnert Park Financing Authority/Successor Agency Page 5 of 8 9. Discussion and Direction and Budget Approval for a Railroad Quiet Zone Development Services Director Pawson and Civil Engineer Garrett presented the item. Recommended Action(s): Approve a Resolution Authorizing the Railroad Quiet Zone and Accessibility Project and Related Actions. Public Comments: Barbara Dahl commented on safety awareness issues regarding the Golf Course Drive railroad crossing. Kimberly Finale stated that she enjoys the sound of the train and expressed her concerns regarding the prevention of possible suicides. ACTION: Moved/seconded (Belforte/Stafford) to adopt Resolution 2017-055 A Approving the Railroad Quiet Zone and Accessibility Project and Related Actions and directed staff to look into additional safety suggestions such as red paint, traffic light coordination and slower train speeds. Motion carried unanimously by the following 5-0 vote: AYES: Ahanotu, Belforte, Callinan, Stafford, and Mackenzie, NOS: None, ABSTAINS: None, ABSENT: None. 10. Consideration of Amendments to Employment Agreements Between the City of Rohnert Park and Assistant City Manager and Department Directors Human Resources Perrault provided an oral report on compensation changes and presented the item. Recommended Action(s): Approve the four (4) resolutions approving Amendments to the Employment Agreements between the City of Rohnert Park and Don Schwartz for Assistant City Manager Services; Betsy Howze for Finance Director Services; Victoria Perrault for Human Resources Director Services and Mary Grace Pawson for Development Services Director Services. Public Comments: None. ACTION: Moved/seconded (Stafford/Ahanotu) to adopt Resolution 2017-056 Approving the Third Amendment to the Employment Agreement Between the City of Rohnert Park and Don Schwartz for Assistant City Manager Services Motion carried unanimously by the following 5-0 vote: AYES: Ahanotu, Belforte, Callinan, Stafford, and Mackenzie, NOS: None, ABSTAINS: None, ABSENT: None. ACTION: Moved/seconded (Stafford/Ahanotu) to adopt Resolution 2017-057 Approving the First Amendment to the Employment Agreement Between the City of Rohnert Park and Betsy Howze for Director of Finance Director Services Motion carried unanimously by the following 5-0 vote: AYES: Ahanotu, Belforte, Callinan, Stafford, and Mackenzie, NOS: None, ABSTAINS: None, ABSENT: None. City of Rohnert Park Joint Regular Meeting Minutes May 9, 2017 for City Council/Rohnert Park Financing Authority/Successor Agency Page 6 of 8 ACTION: Moved/seconded (Stafford/Ahanotu) to adopt Resolution 2017-058 Approving the Third Amendment to the Employment Agreement Between the City of Rohnert Park and Victoria Perrault for Director of Human Resources Services Motion carried unanimously by the following 5-0 vote: AYES: Ahanotu, Belforte, Callinan, Stafford, and Mackenzie, NOS: None, ABSTAINS: None, ABSENT: None. ACTION: Moved/seconded (Stafford/Ahanotu) to adopt Resolution 2017-059 Approving the First Amendment to the Employment Agreement Between the City of Rohnert Park and Mary Grace Pawson for Development Services Director Services Motion carried unanimously by the following 5-0 vote: AYES: Ahanotu, Belforte, Callinan, Stafford, and Mackenzie, NOS: None, ABSTAINS: None, ABSENT: None. 11. Consideration of Amendments to Employment Agreement Between the City of Rohnert Park and Darrin Jenkins for City Manager Services Human Resources Perrault provided an oral report on compensation changes and presented the item. Recommended Action(s): Adopt a resolution approving the Second Amendment to the Employment Agreement between the City of Rohnert Park and Darrin Jenkins for City Manager Services. Public Comments: None. ACTION: Moved/seconded (Stafford/Ahanotu) to adopt Resolution 2017-060 Approving the Second Amendment to the Employment Agreement Between the City of Rohnert Park and Darrin Jenkins for City Manager Services. Motion carried unanimously by the following 5-0 vote: AYES: Ahanotu, Belforte, Callinan, Stafford, and Mackenzie, NOS: None, ABSTAINS: None, ABSENT: None. 12. Consideration of a Letter of Interest for Sonoma County Waste Management Agency Regarding Composting Preferences Assistant City Manager Schwartz presented the item. Recommended Action(s): Approve a Letter of Interest to Sonoma County Waste Management Agency regarding the City’s preferences on future composting. Public Comments: None. ACTION: Moved/seconded (Stafford/Callinan) to move forward with the recommended actions and direct the City Manager to send the Letter of Interest to Sonoma County Waste Management Agency. City of Rohnert Park Joint Regular Meeting Minutes May 9, 2017 for City Council/Rohnert Park Financing Authority/Successor Agency Page 7 of 8 Motion carried unanimously by the following 5-0 vote: AYES: Ahanotu, Belforte, Callinan, Stafford, and Mackenzie, NOS: None, ABSTAINS: None, ABSENT: None. 13. Consideration of Sutter Health Plan Large Group Health Care Services Contract and ACN Group of California, Inc. Group Enrollment Agreement Human Resources Perrault presented the item. Recommended Action(s): Approve a resolution which authorizes and approves the Sutter Health Plan Large Group Health Care Services Contract (“Sutter”) and the ACN Group of California, Inc, dba as OptumHealth Physical Health of California Group Enrollment Agreement (“ACN”). Public Comments: None. Councilmember Callinan stepped away from the dais at 7:18 p.m. and returned at 7:21 p.m. ACTION: Moved/seconded (Stafford/Ahanotu) to adopt Resolution 2017-061 Authorizing and Approving a Sutter Health Plan Large Group Health Care Services Contract and ACN Group of California, Inc. dba as OptumHealth Physical Health of California Group Enrollment Agreement. Motion carried unanimously by the following 5-0 vote: AYES: Ahanotu, Belforte, Callinan, Stafford, and Mackenzie, NOS: None, ABSTAINS: None, ABSENT: None. 14. COMMITTEE / LIAISON/ OTHER REPORTS A. Standing Committee Reports None. B. Liaison Reports 1. Water Advisory Committee (WAC) (5/1) Mayor Mackenzie reported that a proclamation was presented to Chair Chris Gabriel for his retirement. Development Services Director Pawson reported that the comment period for the Environmental Impact Report (EIR) has closed. 2. Remote Access Network (RAN) Board (5/3) Mayor Mackenzie reported that new public safety hardware such as servers and fingerprinting equipment will be purchased. 3. Sonoma County Transportation Authority (SCTA) (5/8) Mayor Mackenzie reported on budget discussions regarding Plan Bay Area. C. Other Reports Vice Mayor Stafford reported on the video contest held by Russian River Watershed Association. Vice Mayor Stafford also congratulated Mayor Mackenzie for winning the Jimmy Smith Award for the North Coast Regional Partnership. City of Rohnert Park Joint Regular Meeting Minutes May 9, 2017 for City Council/Rohnert Park Financing Authority/Successor Agency Page 8 of 8 15. COMMUNICATIONS Councilmember Belforte announced that the RPPSOA Pancake Breakfast will be held on May 13th at Fire Station 2 in order to raise money for the Project Grad Event. Vice Mayor Stafford reported on the Noon Times event held on May 3rd and commended City Manager Jenkins for his presentation. 16. MATTERS FROM/FOR COUNCIL None. 17. PUBLIC COMMENTS None. 18. CLOSED SESSION A. Mayor Mackenzie made the closed session announcement pursuant to Government Code §54957.7 and Council recessed to Closed Session at 7:32 p.m. in Conference Room 2A to Consider: 1. Conference with Real Property Negotiators (Government Code §54956.8) Property: Sale of City Property (APN: 045-041-018) City Negotiator: Darrin Jenkins, City Manager Negotiating Parties: Barnes Road, LLC Under Negotiation: Price and Terms of Payment 2. Conference with Real Property Negotiators (Government Code §54956.8) Property: 6400 State Farm Drive (APN: 143-051-072) City Negotiator: Darrin Jenkins, City Manager Negotiating Parties: Katherine J. Kelleher, CBRE Under Negotiation: Price and Terms of Payment B. Reconvened Joint Regular Meeting Open Session in Council Chamber at 8:06 p.m. C. Report on Closed Session (Government Code § 54957.1) Mayor Mackenzie reported: no reportable action. 19. ADJOURNMENT Mayor Mackenzie adjourned the joint regular meeting at 8:06 p.m. _____________________________________ __________________________________ Caitlin Saldanha, Deputy City Clerk Jake Mackenzie, Mayor City of Rohnert Park City of Rohnert Park ITEM NO. 6C1     1 Meeting Date: May 23, 2017 Department: Development Services Submitted By: Mary Grace Pawson, Director of Development Services/City Engineer Prepared By: Art da Rosa, Deputy City Engineer Agenda Title: Authorizing the Martin Avenue Rehabilitation Project (Project No. 2017-15) and Related Actions RECOMMENDED ACTION: Approve a resolution authorizing the Martin Avenue Rehabilitation Project (Project No. 2017-15) and related actions. BACKGROUND: Martin Avenue is a 600-foot minor collector street that connects Redwood Drive to Dowdell Avenue and serves as an access point to Costco, Ashley Furniture and the Stadium Lands Planned Development Area. In January 2017, the City Council approved updates to the Stadium Area Master Plan and the Final Development Plan for the Residences at Five Creeks Project. These approvals set the stage for construction of a new hotel, multi-family residential complex, and retail complex as well as a new City fire station and park. The approved development plan includes an extension of Martin Avenue to connect Dowdell Avenue to Labath Avenue. Through the development review process, staff has had the opportunity to evaluate the condition of the existing stretch of Martin Avenue, which is poor. Upgrading Martin Avenue at this time would improve service to public, who currently use Martin Avenue to access local businesses, and ensure that the infrastructure in Stadium Lands Planned Development Area is ready to support planned buildout. ANALYSIS: Staff evaluated the option of including Martin Avenue within the planned Redwood and Commerce Rehabilitation Project. However, Martin Avenue is so badly deteriorated that it cannot be adequately rehabilitated using the seal coating process that is included in the Redwood and Commerce Rehabilitation project. As a result, staff is proposing a new capital improvement project to reconstruct Martin Avenue using the full depth reclamation process. Bringing the project forward at this time, allows it to be completed with other planned work in the area, minimizing the inconvenience to the public from construction activity. Staff has included budget for construction of the project in the fiscal year 2017-18 capital improvement program but is also requesting a budget amendment of $130,000 in the current fiscal year to accommodate surveying, design and project administration. In accordance with the City’s purchasing policy, staff issued a request for qualifications for design of the Martin Rehabilitation Project. The City received two proposals and Moe Engineering was selected due their qualifications, familiarity with the City’s processes and costs. Moe’s proposed design fee is $80,750. Staff has authorized $14,450 of early surveying and coordination work, under Moe’s existing Master Services Agreement, to allow for coordination with Residences at Five Creeks Project, which is processing improvement plans with the City. Mission Statement “We Care for Our Residents by Working Together to Build a Better Community for Today and Tomorrow.” CITY OF ROHNERT PARK CITY COUNCIL AGENDA REPORT ITEM NO. 6C1  2   Staff is requesting that Council authorize the City Manager to execute a Task Order Amendment with Moe Engineering to fund the remaining $66,425 for the design work. STRATEGIC PLAN ALIGNMENT: This action is consistent with Strategic Plan Goal D – Continue to Develop a Vibrant Community. OPTIONS CONSIDERED: None. Completing the Martin Avenue Rehabilitation Project at this time will ensure that the developing Stadium Lands Planned Development Area is well-served by public infrastructure and it will improve the experience of the public when they access this area and the nearby commercial businesses. FISCAL IMPACT/FUNDING SOURCE: The fiscal impact of the requested action is $130,000, which covers the cost of engineering design and project management. The proposed funding source for the action is the Refuse Road Impact Fund (Fund 125). The funding for constructing the Martin Avenue Rehabilitation Project has been included in the City’s 2017-18 capital improvement program. Department Head Approval Date: 05/04/2017 Finance Director Approval Date: 05/05//2017 City Attorney Approval Date: 05/04/2017 City Manager Approval Date: 05/09/2017 Attachments (list in packet assembly order): 1. Resolution Authorizing the Martin Rehabilitation Project (Project No. 2017-15) and Related Actions 2. Resolution Exhibit A - First Amendment to Task Order 2016-03 with Moe Engineering 1 RESOLUTION NO. 2017-062 A RESOLUTION AUTHORIZING THE MARTIN REHABILITATION PROJECT (PROJECT NO. 2017-15) AND RELATED ACTIONS WHEREAS, the existing section of Martin Avenue is deteriorated and in need of rehabilitation; and WHEREAS, undertaking the rehabilitation of Martin Avenue at this time allows for better coordination with the development activity and improved service to the public, while reducing the impacts from construction related activity; and WHEREAS, in accordance with the City’s Purchasing Policy, staff has issued request for Qualifications for engineering design services, evaluated responses and determined that Moe Engineering is most qualified to provide design services on this project; and WHEREAS, Moe Engineering has executed a Master Services Agreement with the City and has appropriate insurance on file; and WHEREAS, funding for the construction of the Martin Avenue Project is not included in the City’s current capital improvement program. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Rohnert Park does hereby authorize the Martin Avenue Improvement Project with an initial budget of one hundred and thirty thousand dollars ($130,000) to be funded from the City’s Road Refuse Impact Fee Fund (Fund 125). BE IT FURTHER RESOLVED, the City Manager is authorized to the execute the First Amendment to Task Order 2016-03 with Moe Engineering attached hereto as Exhibit “A” and incorporated herein by reference, subject to minor modifications by the City Manager or City Attorney. BE IT FURTHER RESOLVED that the Finance Director is authorized to amend the budget, make appropriations and transfer funds as necessary to fund the authorized budget for the project. ( 2 ) 2017-062 DULY AND REGULARLY ADOPTED this 23rd day of May, 2017. CITY OF ROHNERT PARK _______________________________ Jake Mackenzie, Mayor ATTEST: _____________________________ JoAnne M. Buergler, City Clerk Attachment: Exhibit A AHANOTU: _________ BELFORTE: _________ CALLINAN: _________ STAFFORD: _________ MACKENZIE: _________ AYES: ( ) NOES: ( ) ABSENT: ( ) ABSTAIN: ( ) FIRST AMENDMENT TO TASK ORDER NO. 2016-03 CITY OF ROHNERT PARK AND MOE ENGINEERING AUTHORIZATION OF ADDITIONAL ENGINEERING SERVICES FOR MARTIN AVENUE REHABILITATION PROJECT SECTION 1 – PURPOSE The purpose of this First Amendment to Task Order 2016-03 (“First Amendment”) is to authorize and direct Moe Engineering to proceed with the work specified in Section 2 below in accordance with the provisions of the MASTER AGREEMENT between the City of Rohnert Park ("City") and Moe Engineering ("Consultant") dated April 1, 2016. SECTION 2 – SCOPE OF WORK In addition to the work authorized by Task Order 2016-03, the additional items authorized by this First Amendment are presented in Exhibit “A”. SECTION 3 – COMPENSATION AND PAYMENT Compensation shall be as provided in the MASTER AGREEMENT between the parties hereto referenced in SECTION 1 above. The additional cost for the additional services as set forth in SECTION 2 shall be actual costs (time and materials) based on Consultants' standard labor charges in accordance with the provisions of the MASTER AGREEMENT and as shown in Exhibit “B” for an amount not-to-exceed $66,425.00. Total compensation under Task Order 2016-03 and this First Amendment shall not exceed $80,875.00 SECTION 4 – TIME OF PERFORMANCE The work described in SECTION 2 of this First Amendment shall be completed by December 31, 2017 or as extended by the City Engineer or his designee. SECTION 5 – ITEMS AND CONDITIONS All items and conditions contained in the MASTER AGREEMENT for professional services between City and Consultant are incorporated by reference. Approved this _____ day of _____________, 2017. CITY OF ROHNERT PARK MOE ENGINEERING ______________________________ ___________________________________ Darrin Jenkins, City Manager John Moe, President Date Per Resolution No. 2017-_____ adopted by the Rohnert Park City Council at its meeting Of ____________________, 2017. ATTEST: APPROVED AS TO FORM ____________________________ ____________________________ City Clerk City Attorney 2950 Montecito Avenue Santa Rosa, CA 95404 (707) 544 - 6274 FAX (707) 544 - 9086 April 25, 2017 Art da Rosa City of Rohnert Park Development Services 130 Avram Avenue Rohnert Park, CA 94928 Subject: Revised Cost Proposal for Design Engineering Services Martin Ave Rehabilitation Rohnert Park Dear Mr. da Rosa: We are pleased to learn our firm has been selected to provide design engineering services for the Martin Avenue Rehabilitation project. Thank you for meeting with Rick Pedroncelli and myself on April 10th. We understand the reduced scope of work to be from rehabilitating segments of Commerce Blvd, Redwood Drive & Martin Avenue to only Martin Avenue with the traffic signal modification at the intersection with Redwood Drive. Also, we understand the City would like the Martin Avenue rehabilitation construction to occur as soon as possible versus in 2018. Based on our meeting we understand the revised scope of work to be described as follows: 1. Prepared plans, technical specifications and provide construction estimate for Full Depth Reclamation (FDR) cement of Martin Avenue between but not including the intersections of Dowdell Avenue and Redwood Drive. 2. The County of Sonoma Materials Lab will provide geotechnical investigation and mix design for FDR (Cement) under services secured by the City. 3. Moe Engineering will complete a CEQA Categorical exemption for the Cities execution and filing. 4. The City desires to avoid Storm Water Low Impact Development (LID) requirements and triggers that require implementation of LID measures. This desire appears acceptable as the Santa Rosa Low Impact Development Manual, Determination Worksheet, Part 2: Project Exemptions, include projects which are a routine maintenance activity that is being conducted to maintain original line and grade, hydraulic capacity, and original purpose of facility such as resurfacing existing roads. If the City is desiring to obtain Regional Water Quality Board credit for implementing LID measures with this project tree pods at the two curb inlets near Redwood Drive may be an affordable item to consider. Martin Ave Rehabilitation - Proposal for Design Engineering Services Page 2 of 5 April 25, 2017 5. It is understood that the funding of the project is being made by and through City funds which do not require any federal or state permits or approvals. 6. A complete field topographic survey will be conducted and drafting of base mapping of the Martin Avenue segment. 7. All utilities will be researched and identified on the base mapping. Utility companies, such as PG&E, Comcast, and AT&T will be consulted and requested to provide utility depths and locations in order to accurately map them. Moe will hire a contractor to perform potholing of utilities under a city- issued encroachment permit. 8. Moe Engineering will work collaboratively with the County of Sonoma Materials Lab per the City request for corings and designing of the FDR mix design section. 9. Moe is reviewing the private development plans for the Residences at Five Creek and therefore will coordinate the redesign of the western leg of the Martin/Dowdell intersection including the southern leg of the intersection (Ashley Furniture Site) with the private engineer’s plans. Moe believes the private development plans can and should provide for the design. Additionally, the Residences at Five Creek plans include installation of a 12- inch water main in Redwood Drive at the intersection with Martin Avenue. This work will need to be coordinated with the construction of the Martin Ave FDR work. 10. Moe will utilize W-trans for developing plans and technical specifications for the upgrade of the existing traffic signal located at Martin/Redwood intersection including advance detection system and a 2070 signal controller. The construction of this signal upgrade is proposed to be solicited separately from the Martin Avenue construction via an informal bid processes which would allow the installation to occur prior to the pavement rehab work. 11. Moe will provide engineering design services to prepare plans, specification and construction cost estimates (60% design, 90% design, and 100% design) and design/construction schedule for the Project. This work will include: 60% Submittal 60% Plans consists of draft Typical Cross Sections, Layout Plans detailing existing utilities and work to be done, Striping plans, rudimentary technical specifications, and construction cost estimate. The submittal will include outline specifications, 3 sets of preliminary plans and a preliminary estimate of probable construction costs. 90% Submittal Moe will meet with the City to review the 60% design comments. Following this review, Moe will prepare the 90% submittal. The 90% Plan is expected to be advertisement ready product with all comments from the 60% submittal Martin Ave Rehabilitation - Proposal for Design Engineering Services Page 3 of 5 April 25, 2017 implemented. Traffic signal upgrade with advance detection system will need to be completed with the 90% submittals of plans, specifications, and estimates. Final Submittal Following the 90% review meeting with the City, Moe will prepare final bid documents. An electronic copy of the drawings (in both AutoCAD and pdf) and specifications will also be provided. Moe will also prepare a design package to facilitate the construction management personnel, such package will be equivalent to the RE Folder as described in Caltrans Construction Manual. 12. Moe will provide complete project advertisement services for both the informally bid Traffic Signal Modifications and the formally bid Martin Ave. work. Moe will advertise the project on the City’s behalf, respond to RFI’s during advertisement, and recommend the lowest responsible bidder. Moe will cooperate with the Construction Management Team to provide a complete and timely project delivery. 13. Moe will respond to RFI’s during construction, attend the pre-construction meeting, review submittals, change order review and As-built preparation. We offer the following cost proposal for the above-described design services for this project. Pursuant to our review of the Request for Qualifications and to further communicate, we propose to provide the following services for developing plans, technical specifications, estimate, preparation of the bid documents, and construction support: Phase 1 – Initial Information Gathering $ 15,850.00 - Project Setup/Coordination/Research - Meetings - Field review - Topographic Survey - Base Mapping Phase 2 - 60% Submittal – Plans and Estimate $ 15,000.00 - Rehabilitation design drafting - Traffic Signal Modifications Design - Generate City Standard Sheets - QA/QC review - Meetings Phase 3 – 90% Submittal – PS&E $ 18,800.00 - Revisions - Special Provisions & Technical Specifications - Meetings - Geotechnical Supplemental Consultation Martin Ave Rehabilitation - Proposal for Design Engineering Services Page 4 of 5 April 25, 2017 Phase 4 - 100% Submittal – PS&E $ 2,600.00 - Provide final electronic format Project Management – Including Subconsultants $ 7,875.00 Sub-Consultant Design (W-Trans) $ 7,700.00 Estimated Expenses - Mileage & Printing $ 750.00 SUBTOTAL ENGINEERING DESIGN SERVICES $ 68,575.00 Phase 5 – CONTRACT ASSISTANCE - Solicit Bids (Advertising) - Respond to bidders’ questions - Attend pre-bid conference - Review submittals - Recommend Lowest Bidder - Site visits, coordination with City CM - Prepare As-Builts SUBTOTAL – TIME AND MATERIALS $ 12,300.00 We propose to provide the above ENGINEERING DESIGN SERVICES for a Not-to- Exceed fee of $68,575.00. We propose to provide the above CONTRACT ASSISTANCE for a Time and Materials fee of $12,300.00. The total proposed fee for Engineering Design Services and Contract Assistance is $80,875.00. With the previously authorized amount of $14,450.00 for setting up the project, field topo survey and potholing the total amount requested for a Professional Services Agreement is reduced to $66,425.00. Martin Ave Rehabilitation - Proposal for Design Engineering Services Page 5 of 5 April 25, 2017 The following items are specifically excluded from this proposal:  Geotechnical Engineering services  Structural, traffic analysis, lighting engineering services  Architectural and landscape architectural services  Payment of any fees associated with the submittal or completion of this project.  Redesign of the western leg of the Martin/Dowdell intersection including the southern leg of the intersection (Ashley Furniture Site)  Irrigation and landscape design and layout  Construction Management Services  Construction Inspection Services  Right of Way Acquisition services If you have any questions or would like clarification of the proposed services, please feel free to call. Thank you for the opportunity to provide this proposal for engineering services. We look forward to working with you on this project. Sincerely, John L. Moe, PE President Moe Engineering, Inc. City of Rohnert Park Date: Estimated Level of Effort Category Principal Sr. Eng./LS Assist. Eng. Eng. Tech Task Project  Rate  $      200.00  $      175.00  $      135.00 125.00$         Amount Total PHASE 1 ‐ INITIAL INFORMATION GATHERING 1.1 Project Setup / Coordination / Research Hours 2 2 4 Amount 400.00$      350.00$       ‐$             500.00$         1,250.00$            1.2 Meetings ‐ up to 2 each Hours 4 6 Amount 800.00$      1,050.00$    ‐$              ‐$               1,850.00$            1.3 Field review Hours 2 2 Amount 400.00$      350.00$       ‐$              ‐$               750.00$               1.4 Topographic Survey Hours 9 9 Amount ‐$             1,575.00$    ‐$             1,125.00$     2,700.00$            1.5 Base mapping Hours 4 16 Amount ‐$             700.00$       ‐$             2,000.00$     2,700.00$            Subtotal 9,250.00$            SUBCONSULTANTS 1.6 Potholing utilities 5,200.00$            estimated 2 days, vacuum excavator + 2 man crew, $2,600/day Subtotal authorized under Task Order 2016‐03 14,450.00$     1.7 Coordination of Potholing work Hours 8 Amount ‐$             1,400.00$    ‐$              ‐$               1,400.00$            Subtotal Phase 1 15,850.00$     PHASE 2 ‐ 60% SUBMITTAL ‐ PLANS & ESTIMATE 2.1 Rehabilitation design drafting Hours 4 12 32 Amount 800.00$      2,100.00$    ‐$             4,000.00$     6,900.00$            2.2 Traffic Signal Mods Design coordination Hours 4.00$           8.00$           16.00$            Amount 800.00$      1,400.00$    ‐$             2,000.00$     4,200.00$            2.3 Generate City Standard Sheets Hours 8 Amount ‐$              ‐$              ‐$             1,000.00$     1,000.00$            2.4 QA/QC review Hours 2 6 Amount 400.00$      1,050.00$    ‐$              ‐$               1,450.00$            2.5 Meetings ‐ up to 2 each Hours 2 6 Amount 400.00$      1,050.00$    ‐$              ‐$               1,450.00$            Subtotal Phase 2 15,000.00$     PHASE 3 ‐90% SUBMITTAL ‐ PS&E 3.1 Revisions Hours 4 16 24 Amount 800.00$      2,800.00$    ‐$             3,000.00$     6,600.00$            3.2 Special Provisions & Technical Specifications Hours 4 24 24 Amount 800.00$      4,200.00$    ‐$             3,000.00$     8,000.00$            3.3 Meetings ‐ up to 2 each Hours 4 6 2 Amount 800.00$      1,050.00$    ‐$             250.00$         2,100.00$            3.4 Coordinate County Materails Lab Design Hours 4 6 2 Amount 800.00$      1,050.00$    ‐$             250.00$         2,100.00$            Subtotal Phase 3 18,800.00$     PHASE 4 ‐ 100% SUBMITTAL ‐ PS&E 4.1 Provide final electronic format Hours 2 4 12 Amount 400.00$      700.00$       ‐$             1,500.00$     2,600.00$            Subtotal Phase 4 2,600.00$       Labor Cost Moe Engineering, Inc. 4/25/2017 Job No. 2017‐032 MARTIN AVE REHABILITATION Estimated Level of Effort -Martin Rehabilitation 4/25/2017 PROJECT MANAGEMENT Including subconsultants Hours 45 Amount ‐$             7,875.00$    ‐$              ‐$               7,875.00$            Subtotal Project Management 7,875.00$       Sub‐Consultant Design (W‐Trans)7,700.00$       Estimated Expenses   ‐ Mileage and printing 750.00$           Subtotal Design ‐ Not To Exceed 68,575.00$     PHASE 5 ‐ CONTRACT ASSISTANCE 6.1 Solicit Bids (Advertising) Hours 2 4 4 Amount 400.00$      700.00$       ‐$             500.00$         1,600.00$            6.2 Respond to bidders' questions Hours 2 8 2 Amount 400.00$      1,400.00$    ‐$             250.00$         2,050.00$            6.3 Attend pre‐bid conference Hours 2 4 Amount 400.00$      700.00$       ‐$              ‐$               1,100.00$            6.4 Review Submittals Hours 2 6 Amount 400.00$      1,050.00$    ‐$              ‐$               1,450.00$            6.5 Recommend Lowest Bidder Hours 1 2 2 Amount 200.00$      350.00$       ‐$             250.00$         800.00$               6.6 Site visits, coordinate with City CM Hours 4 8 8 Amount 800.00$      1,400.00$    ‐$             1,000.00$     3,200.00$            6.7 Prepare As‐Builts Hours 2 4 8 Amount 400.00$      700.00$       ‐$             1,000.00$     2,100.00$            Subtotal ‐ Contract Assistance 12,300.00$     Total ‐ Design, Contract Assistance 80,875.00$     Minus Subtotal authorized under Task Order 2016‐03 14,450.00$     Total Professional Services Agreement amount 66,425.00$     Estimated Level of Effort -Martin Rehabilitation 4/25/2017 ITEM NO. 6C2  1   Meeting Date: May 23, 2017 Department: Development Services Submitted By: Mary Grace Pawson, Director of Development Services/ City Engineer Prepared By: Mary Grace Pawson, Director of Development Services/ City Engineer Agenda Title: Consideration of a Public Improvement Agreement for Vast Oak East Utility Improvements and Related Actions RECOMMENDED ACTION: Adopt a Resolution Approving a Public Improvement Agreement for Vast Oak East Utility Improvements and Finding this Action Covered under the Updated Environmental Impact Report for the University District Specific Plan as amended. BACKGROUND: The City has approved a Tentative Map and entered into a Development Agreement with the University District LLC and Vast Oak Properties L.P. (“Developer”) to facilitate the orderly development of the University District Specific Plan Area. Both the Conditions of Approval for the Tentative Map and the Development Agreement require that the construction of public infrastructure be coordinated so that the infrastructure is available to serve new residential and commercial development planned within the Specific Plan Area. ANALYSIS: The Developer intends to process Final Maps for the second phase of the University District called Vast Oak East Phase 2A through 2F. This new phase is located north of Rohnert Park Expressway and directly west of Petaluma Hill Road. The City has already authorized the construction of “backbone” water, recycled water, sewer and storm drain infrastructure serving this area and the Developer is now seeking approval to construct the remaining wet utilities. The Developer’s goal is to complete the construction of the infrastructure serving these new neighborhoods in 2017, in order to allow residential construction to being sometime in 2018. The Developer is committing to complete the construction of these improvements through the proposed Public Improvement Agreement and has posted the necessary performance and labor and materials bonds with the City. The proposed Public Improvement Agreement is in the same form that has been previously approved by Council. Like the other Improvement Agreements, this Agreement outlines in more detail than specified in the Conditions of Approval or the Development Agreement, the Developer’s duty to install the improvements to City standards and protect them until acceptance; the City’s rights for inspection and cost recovery; the process by which new improvements will be inspected by the City; requirements to pay prevailing wage; requirements for bonds, insurance and indemnity and the City’s remedies against breach or default by the Mission Statement “We Care for Our Residents by Working Together to Build a Better Community for Today and Tomorrow.” CITY OF ROHNERT PARK CITY COUNCIL AGENDA REPORT ITEM NO. 6C2  2   Developer. The Agreement also requires that the Developer post performance and labor and material bonds, for the full constructed value. ENVIRONMENTAL ANALYSIS: The proposed Public Improvement Agreement will authorize and provide for the construction of a number of infrastructure improvements that will serve the development. These improvements were included in the Project Description Section of the Draft Environmental Impact Report (Draft EIR dated July 2005) for the University District Specific Plan. These improvements are necessary to serve the planned development. Because the improvements were included in the Project Description, the analysis in the Draft EIR included an analysis of the construction and operation of these improvements and mitigation measures were developed to minimize any impacts. The Draft EIR identified 19 temporary construction impacts that are associated with the development of the site, including the construction of infrastructure improvements. All of these impacts are less than significant or can be reduced to a less than significant level with standard construction mitigation that will be incorporated into the approved plans required by the Public Improvement Agreements. The description of the required infrastructure improvements necessary to serve the development was not substantially changed by either the Final EIR (March 2006) or the CEQA Addendum (February 2014). Because the proposed improvements were included in the Project Description considered in the University District Specific Plan EIR, and their impacts were analyzed and mitigated to a less than significant level, no further CEQA analysis is required. The City will use its plan approval process to ensure that mitigations to control construction noise, dust, hazards and biological impacts are included as part of the work. OPTIONS CONSIDERED: None. The recommended action is consistent with the Development Agreement and Conditions of Approval for the Tentative Map and is necessary to complete the project. FISCAL IMPACT/FUNDING SOURCE: The project will be constructed and paid for by the Developer. The Public Improvement Agreement acknowledges that the Developer may, at a later date, be reimbursed for costs from a Community Facilities District (CFD) bond sale, through a CFD that has been established by the California Statewide Communities Development Authority. If CFD bonds are used to fund some, or all, of the infrastructure, these bonds will be repaid from special tax revenue generated from the property within the Specific Plan Area and will not be an obligation of the City. Construction of public improvements required by the Conditions of Approval has or will be guaranteed with performance and labor and material bonds. After acceptance of the improvements, the City will incur ongoing maintenance costs which will be funded from the maintenance annuity deposit provided by the Developer in accordance with the Development Agreement. Department Head Approval Date: 04/28/2017 Finance Director Approval Date: NA City Attorney Approval Date: 05/05/2017 City Manager Approval Date: 05/15/2017 ITEM NO. 6C2  3   Attachments 1. A Resolution of the City Council of the City of Rohnert Park Approving a Public Improvement Agreement for Vast Oak East Utility Improvements with the University District LLC and Vast Oak L.P. and Finding this Action Covered under the Environmental Impact Report for the University District Specific Plan as Amended 2. Resolution Exhibit A – Public Improvement Agreement by and between the City of Rohnert Park and University District LLC and Vast Oaks LP for the Vast Oak East Utility Improvements RESOLUTION NO. 2017-063 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK APPROVING A PUBLIC IMPROVEMENT AGREEMENT FOR VAST OAK EAST UTILITY IMPROVEMENTS WITH THE UNIVERSITY DISTRICT LLC AND VAST OAK L.P. AND FINDING THIS ACTION COVERED UNDER THE ENVIRONMENTAL IMPACT REPORT FOR THE UNIVERSITY DISTRICT SPECIFIC PLAN AS AMENDED WHEREAS, on May 23, 2006, the City Council of the City of Rohnert adopted Resolution No 2006-141 approving the Final Environmental Impact Report (EIR) for the University District Specific Plan Area including a draft EIR, a recirculated draft EIR, response to comments, changes, clarifications, and corrections to the draft EIR and recirculated draft EIR and appendices (together the “2006 EIR”); and WHEREAS, on April 8, 2014, the City Council of the City of Rohnert Park adopted Resolution No. 2014-032 approving an addendum to the 2006 EIR (together with the 2006 EIR collectively called the “Updated Final EIR”); and WHEREAS, on April 8, 2014, the City Council of the City of Rohnert Park adopted Resolution 2014-035 approving the Tentative Map for the University District Plan, prepared by MacKay & Somps and dated February 2014 (the “Tentative Map”), subject to certain conditions of approval (“Conditions”); and WHEREAS, on April 22, 2014, the City Council of the City of Rohnert Park adopted Ordinance No. 878, approving a Development Agreement (“Development Agreement”) between the City of Rohnert Park and Vast Oak Property L.P. and University District LLC (“Developer”); and WHEREAS, the Developer intends to file the Final Maps for Vast Oak East Phase 2A through 2-F within the University District Specific Plan Area and consisting of 428 single-family residential lots; and WHEREAS, the Development Agreement and the Conditions of Approval include requirements for Developer to construct all in-tract improvements within each Final Map area, including streets, storm drainage, water, sewer, recycled water, joint trench, streetlighting, and landscaping in conjunction with each Final Map filed for the University District Specific Plan Area; and WHEREAS, the Developer has submitted plans and specifications for the Vast Oak East Phase 2A through 2F Utility Improvements (potable water, recycled water, sanitary sewer and storm drain) which have been reviewed by the City Engineer and determined to be technically accurate and in conformance with the Conditions of Approval; and WHEREAS, the Developer intends to move forward with installation of the Vast Oak East Phase 2A through 2F Utility Improvements in order to allow flexibility in the order of development of the six aforementioned neighborhoods; and WHEREAS, the Developer has posted performance and labor and materials bonds in the amount of Nine Hundred and Sixty-Five Thousand, Eight Hundred and Forty Dollars and No Cents ($965,840.00) to cover the cost of improvements for Phase 2A, 2E and 2F and in the amount of One Million, Nine Hundred and Twenty-Three Thousand, Seven Hundred and Ninety ( 2 ) 2017-063 Dollars and No Cents ($1,923,790.00) to cover the cost of improvements for Phase 2B, 2C and 2D; WHEREAS, the City and Developer desire to enter into a Public Improvement Agreement for the Vast Oak East Utility Improvements to more thoroughly define the terms and conditions of the construction and dedication obligations under the conditions of approval. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Rohnert Park that it does hereby authorize and approve the Public Improvement Agreement for the Vast Oak East Utility Improvements included as Exhibit A to this is Resolution. BE IT FUTHER RESOLVED that based on the evidence presented at the duly noticed public meeting of May 23, 2017, the City Council of the City of Rohnert Park finds that the public improvements and activities were adequately described and mitigated in the University District Specific Plan Area Updated Final EIR as amended, and that no other CEQA analysis is warranted. BE IT FURTHER RESOLVED that the City Manager is hereby authorized and directed to execute the Public Improvement Agreement for the Vast Oak East Utility Improvements in substantially similar form to the agreement attached hereto and incorporated by this reference as Exhibit A subject to minor modification by the City Manager or City Attorney. DULY AND REGULARLY ADOPTED this 23 day of May, 2017. CITY OF ROHNERT PARK ____________________________________ Jake MacKenzie, Mayor ATTEST: ______________________________ JoAnne M. Buergler, City Clerk Attachment: Exhibit A AHANOTU: _________ BELFORTE: _________ CALLINAN: _________ STAFFORD: _________ MACKENZIE: _________ AYES: ( ) NOES: ( ) ABSENT: ( ) ABSTAIN: ( ) Exhibit A to Resolution RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Rohnert Park 130 Avram Avenue Rohnert Park, California 94928-2486 Attention: City Clerk ) ) ) ) ) ) ) ) (Space Above This Line for Recorder's Use Only) Exempt from recording fee per Gov. Code § 27383. PUBLIC IMPROVEMENT AGREEMENT BY AND BETWEEN THE CITY OF ROHNERT PARK AND UNIVERSITY DISTRICT LLC FOR THE VAST OAK EAST UTILITY IMPROVEMENTS This Public Improvement 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 Company, Vast Oak LP, a California Corporation ("Developer"), and the CITY OF ROHNERT PARK, a California municipal corporation ("City"). City and Developer are sometimes referred to hereinafter individually as “Party” and collectively as “Parties”. RECITALS A. On April 8, 2014, the City Council of the City of Rohnert Park adopted Resolution No. 2014-035, approving the Tentative Map for the University District Vast Oak Property, prepared by MacKay & Somps and dated February 2014 (the "Tentative Map"), subject to certain conditions of approval (the "Conditions"). B. On April 22, 2014, the City Council of the City of Rohnert Park adopted its Ordinance No. 878 approving a Development Agreement with the Developer (the “Development Agreement”) C. Both the Conditions and the Development Agreement require that the Developer provide adequate in-tract infrastructure for its development including wet utilities (potable water, recycled water, sanitary sewer, and storm drain) for each neighborhood. D. The Developer has submitted plans, specifications and drawings for the improvements. These plans are on file in the office of the City Engineer and have been approved as outlined below:  Vast Oak East Phases 2A, 2E-2F Improvement Plans, City of Rohnert Park, California, February 2017, WDID # 1 49C370212, Approved For Underground Only, prepared by MacKay & Somps, 19 Sheets (Sheets 1 thru 19), and approved by the City Engineer on May __, 2017.  Vast Oak East Phase 2B-2D Improvement Plans, City of Rohnert Park, California, February 2017, WDID # 1 49C370212, Approved For Underground Only, prepared by MacKy & Somps, 23 Sheets (Sheets 1 thru 23), and approved by the City Engineer on May __, 2017. E. Developer intends to file Final Maps for Phases 2a through 2F within the Vast Oak East Phase of the University District Vast Oak Property, consisting of 428 single-family residential lots (the 2 “Project”) and wishes to begin the construction of the Vast Oak East infrastructure in advance of filing the maps. F. City and Developer desire to enter an agreement providing for the construction and installation of the Improvements in accordance with the plans, specification and drawings described in Recital D. 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 Chapter 16.16 of the RPMC, are hereby incorporated into and form a material part of this Agreement 2. Purpose and Effective Date 2.1 Purpose. The purpose of this Agreement is to guarantee completion of the Improvements and ensure satisfactory performance by Developer of Developer's obligations to satisfy the Conditions for the Project. 2.2 Effective Date. The Effective Date of this Agreement shall be as set forth above. 3. 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 Exhibit A, attached hereto (the “Property”). 4. Improvements 4.1 Duty to Install 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 Improvements, in accordance with the Improvement Plans (defined in Recital D. 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 terms and conditions of this Agreement. The construction, installation and completion of the 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 Improvements until City formally approves and accepts them in accordance with its policies and procedures. City shall exercise no control over the Improvements until approved and accepted. Any use by any person of the 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 Improvements. Developer shall maintain all the Improvements in a state of good repair until they are completed by Developer and approved and accepted by City. 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 properly prosecute its maintenance obligation under this section, City may do all work necessary for such maintenance and the cost thereof shall be the 3 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. 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 Improvements or their condition prior to acceptance. 4.2. Completion Date. Developer will complete the Work within two years of the Effective Date or as required by the Conditions of Approval for the University District Vast Oak Property, whichever is sooner. All Work will be completed in a good and workmanlike manner in accordance with accepted design and construction practices. This 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 5 shall remain enforceable throughout the term of the extension. 4.3. Estimated Cost of Work. The estimated cost of the Work is as follows:  Vast Oak East Phases 2A, 2E and 2F: Nine Hundred and Sixty Five Thousand, Eight Hundred and Forty Dollars and No Cents ($965,840.00)  Vast Oak East Phases 2B-2D: One Million, Nine Hundred and Twenty Three Thousand, Seven Hundred and Ninety Dollars and No Cents ($1,923,790.00) 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. 4.4. 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. 4.5. 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, shall be named in writing by Developer prior to commencement of the Work, shall be present on the Property during the performance of the Work. Any change in the superintendent will require advance notification to the City Engineer and concurrence of the City Engineer and the Engineer of Record for the Improvement Plans. 4.6. Encroachment Permits. Developer shall obtain, at its sole cost and expense, any encroachment permits required by the City in order to perform the Work. 4.7. Inspection: All of the Improvements shall be constructed and installed to the satisfaction of the City Engineer, in his or her reasonable discretion. City and its authorized agents shall, at all times during the construction of the Improvements, have free access to the Improvements and shall 4 be allowed to examine and inspect the Improvements and all material used and to be used in the Improvements to confirm compliance with City Plans and Specifications. 4.8. Commencement of Construction and Inspection. Developer and its contractor or subcontractors shall not commence construction of the 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 4 .6. All work performed on the 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 Improvements shall be subject to inspection by City. All fees and costs to construct the 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 defects or improper or inadequate workmanship. 4.9. City's Inspection, Administration and Testing Costs. Developer shall pay to City the actual cost for all inspection, 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 Forty Three Thousand, Three Hundred and Forty-Four Dollars and Forty-Five Cents ($43,344.45) (the "Estimated Cost"). Concurrently with the execution of this Agreement, Developer shall deposit an amount equal to the Estimated Cost with City for the payment of the City Costs. In the event that the Estimated Cost is insufficient to cover the actual City Costs incurred, Developer shall, upon notice in writing by the City Engineer, deposit such additional amount as may be required to pay the City Costs. Any amount of the Estimated Cost, initial deposit or additional amounts deposited remaining after payment of all City Costs will be returned to Developer. City may, at its discretion, deposit such funds in an interest-bearing account and retain any and all interest earned. 4.10. 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 acceptance 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. 4.11. 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. 4.12. Prevailing Wages. The work of the Improvements constitutes a "public work" as defined in the California Labor Code, section 1771, et seq ("Labor Code Regulations") because the work is being paid for in whole or in part out of public funds. City and Developer acknowledge that the construction of the Improvements is subject to the payment of prevailing wages. Further, Developer agrees to defend, indemnify and hold City, its elected officials, officers, employees, and 5 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 and the payment of prevailing wages. 4.13. Contractor Licenses. All work performed on the 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. 4.14. Repair of Work Damaged During Construction. Developer agrees to repair or have repaired in a timely manner at its sole cost and expense all public roads, streets, or other public or private property 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 whom Developer has paid the full cost of such repair in accordance with this Section 4.14. 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 written acceptances have been provided to the City Engineer, except as otherwise provided in section 4.18.1 4.15. Payments. Developer agrees that it will pay, when due, all those furnishing labor or materials in connection with the Work. Developer further agrees that pursuant to Government Code section 66499.7, the Labor and Materials Bond provided by Developer in accordance with Section 5.1.2 of this Agreement shall not be released if any mechanics liens or stop notices are outstanding, unless said liens are released by bond in compliance with Civil Code section 3143. 4.16. Liability for Work Prior to Formal Acceptance. Until the City Council has formally accepted the 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 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 improvements that may occur in connection with the Improvements work. 4.17. 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. 4.18. Final Acceptance. 4.18.1 Notice of Completion. Within thirty (30) days of receipt of Developer's written notification pursuant to Section 4.17 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 acceptances have been provided. If the Work and repair are, in the opinion of the City 6 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. 4.18.2 Acceptance of Improvements. After sending Developer a written notice of satisfactory completion pursuant to Section 4.18.1, the City Engineer will recommend acceptance of the 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 Improvements, offers of 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 Sonoma County. 4.19. 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 improvements in accordance with Section 4.18. 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 reconstruction and Developer shall pay to the City upon demand the actual cost of such repairs, replacements or reconstruction. 4.20. Record Drawings. Upon completion of the 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 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. 4.21. Ownership of Improvements. From and after acceptance of the Improvements by formal action of the City Council, ownership of the Improvements shall be vested exclusively in City. 5. Security. 5.1 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 7 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. 5.1.1 Performance Security. Developer shall furnish and deliver performance security concurrently with the execution of this Agreement, which must meet the requirements of Government Code Section 66499.1, if applicable, and Rohnert Park Municipal Code Section 16.16.070 and be acceptable to the City Attorney, in the following amounts:  Vast Oak East Phases 2A, 2E and 2F: Nine Hundred and Sixty-Five Thousand, Eight Hundred and Forty Dollars and No Cents ($965,840.00)  Vast Oak East Phases 2B-2D: One Million, Nine Hundred and Twenty-Three Thousand, Seven Hundred and Ninety Dollars and No Cents ($1,923,790.00) 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 improvements as described in Section 4.18.2 and Developer's delivery of the Warranty Security described in Section 5.1.3. 5.1.2 Labor and Materials Security. Developer shall furnish and deliver labor and materials security 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, in the following amounts:  Vast Oak East Phases 2A, 2E and 2F: Nine Hundred and Sixty-Five Thousand, Eight Hundred and Forty Dollars and No Cents ($965,840.00)  Vast Oak East Phases 2B-2D: One Million, Nine Hundred and Twenty-Three Thousand, Seven Hundred and Ninety Dollars and No Cents ($1,923,790.00) The security shall secure payment to the contractor(s) and subcontractor(s) performing the Work and to all persons furnishing labor, materials or equipment to them. The City shall retain each security until both (i) the City accepts the Work in accordance with Section 4.18 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. 5.1.3. 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., upon acceptance of the Improvements and prior to release of the Performance Security, in the amount in the amount of Four Hundred Thirty Three Thousand, Four Hundred and Forty-Four Dollars and Fifty Cents ($433,444.50) 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 improvements against any defective work or labor done, or defective materials furnished. 5.2. 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, the City may require either a cash deposit or a surety bond guaranteeing performance in a form and signed 8 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. 6. Indemnity and Insurance. 6.1 Indemnification. Developer agrees to indemnify, defend and hold the City, its 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 Developer'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. The aforementioned indemnity shall apply regardless of whether or not City has prepared, supplied or approved plans and/or specifications for the Work or Improvements and regardless of whether any insurance required under this Agreement is 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 contractor and 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. 6.2. 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. 9 (4) The insurance 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 related 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. 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. 6.3. 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. 6.4. 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. 10 (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. 7. Breach of Agreement; Opportunity to Cure; Remedies. 7.1. 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. 7.2. Breach of Agreement; Performance by City. If the City gives Developer notice, under Section 7.1, 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 5. 7.3. Remedies. 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. 8. Miscellaneous. 8.1 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 11 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. 8.2. 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: University District LLC, 500 La Gonda Way, #100 Danville, CA 94526 Attn. Kevin Pohlson 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. 8.3 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. 8.4. 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. 8.5. 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. 8.6. Transfers; Assignments. Developer may assign its obligations under this Agreement to successor owner(s) of the Site 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. 12 8.7. Time is of the Essence. Time is of the essence of this Agreement and of each and every term and condition hereof. 8.8. 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. 8.9. 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. 8.10. 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. 8.11. 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 8.6, in which event this Agreement shall remain binding upon Developer. 8.12. 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. 8.13. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original. 8.14. 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. 8.15. 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. 8.16. 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. 8.17 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. 13 IN WITNESS WHEREOF, City 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 May23, 2017. ATTEST: City Clerk APPROVED AS TO FORM: City Attorney 14 Dated: "DEVELOPER" University District LLC A Delaware Limited Liability Company By: ____________________________ Name:_______________________ Title:________________________ Vast Oak Properties, L.P., A California Limited Partnership By: ____________________________ Name:_______________________ Title:________________________ 15 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) 16 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) 17 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) 18 EXHIBIT A PROPERTY SUBJECT TO AGREEMENT   ITEM NO. 6C3 OAK #4840‐0082‐9000 v1 1   Meeting Date: May 23, 2017 Department: Administration Submitted By: Darrin Jenkins, City Manager Prepared By: Leonardo Tacata, Senior Analyst Agenda Title: Authorizing the City Manager to Execute a Memorandum of Understanding with City of Rohnert Park Foundation to Accept Community Investment Recurring Contributions from the Graton Mitigation Fund RECOMMENDED ACTION: Consider for approval and authorize by resolution the execution of a memorandum of understanding with the City of Rohnert Park Foundation to distribute recurring donations from the Graton Mitigation Fund. BACKGROUND: On April 17, 2013, the City approved the First Amended and Restated Memorandum of Understanding by and between the City of Rohnert Park and the Federated Indians of Graton Rancheria (MOU) with the Federated Indians of Graton Rancheria (“Tribe”) to facilitate the mitigation of impacts resulting from the Graton Resort and Casino. As an intergovernmental agreement, the MOU provides that the Tribe, through the Graton Mitigation Fund, designates contributions to the City for certain purposes. One of these purposes is the “Community Investment Recurring Contribution,” which consists of a quarterly recurring charitable contribution to the Rohnert Park Foundation. It is important to note that a quarterly Community Investment Recurring Contribution is only paid if there are sufficient funds remaining in the Graton Mitigation Fund after guaranteed obligations to the City and County of Sonoma have been met. Although not guaranteed, the Foundation through the City is expected to receive approximately $50,000 for each of the first of twelve quarterly contributions. Thereafter, the Foundation is expected to receive approximately $270,000 per quarter, through the end of the term of the MOU, which is December 31, 2033, or the date the Tribal-State Compact or any extension expires, whichever is later. The amount of the contribution will be adjusted by the Consumer Price Index on an annual basis. The Tribe will not make the Community Investment Recurring Contribution payments directly to the Foundation. Pursuant to the “Tribal-State Compact between the State of California and the Federated Indians of Graton Rancheria” executed on or about March 27, 2012, which established the Graton Mitigation Fund, the Tribe makes payments to the State, which administers the Graton Mitigation Fund. The State then makes payments to the City that will be passed through to the Foundation. The City has been informed that it may receive its first quarterly Community Investment Contribution in the fourth fiscal quarter of FY 2016-17 (June). On May 2, 2017, the City of Rohnert Park Foundation Board authorized the Foundation Executive Director to sign a memorandum of understanding with the City of Rohnert Park to Mission Statement “We Care for Our Residents by Working Together to Build a Better Community for Today and Tomorrow.” CITY OF ROHNERT PARK CITY COUNCIL AGENDA REPORT   ITEM NO. 6C3 OAK #4840‐0082‐9000 v1 2   accept Graton Mitigation Fund Community Investment Recurring Contributions. This action would allow the City to enter into an agreement with the Foundation. SUMMARY: The City has established an account whereby Community Investment Recurring Contribution revenue will be deposited and subsequently distributed to the Foundation. To accept any Community Investment Recurring Contribution payments that exceed $50,000 from one source, the City of Rohnert Park Foundation Board must enter into a written agreement with the City. The proposed MOU does not provide any restrictions on the use of the recurring contribution provided to the Foundation. The Foundation Board has approved the receipt of Community Investment Recurring Contributions to the Foundation and the proposed MOU on May 2, 2017. City Council is requested to approve the written agreement in order for the Foundation to accept these recurring mitigation funds. STRATEGIC PLAN ALIGNMENT: D: Continue to develop a vibrant community. OPTIONS CONSIDERED: (1) Option 1: Adopt the resolution to authorize the City Manager to execute the Memorandum of Understanding with City of Rohnert Park Foundation to accept Graton Mitigation funds in excess of $50,000. This is the recommended option. (2) Option 2: Do not adopt the Foundation Memorandum of Understanding. Per the bylaws of the City of Rohnert Park Foundation, the Foundation would likely not be able to accept all of the Graton Mitigation Community Investment contributions designated in the MOU between City and Tribe, as contributions will likely total more than $50,000 in every fiscal year. Because the City’s MOU with the Tribe determines the use of the Community Investment contributions, City may need to return the designated funds to the Graton Mitigation Fund or amend the MOU to modify the requirements of the Community Investment recurring contributions. FISCAL IMPACT/FUNDING SOURCE: The net fiscal impact of the proposed Memorandum of Understanding is zero ($0) dollars. The full amount of every contribution made to the Foundation is offset by the same amount provided by the Graton Mitigation Fund contribution to the City. The funding source is the Graton Mitigation Fund which is administered by the State of California. Department Head Approval Date: N/A Finance Director Approval Date: 5/17/17 City Attorney Approval Date: 5/12/17 City Manager Approval Date: 5/15/17 Attachments (list in packet assembly order): 1. Resolution Authorizing the City Manager to Execute a Memorandum of Understanding with the City of Rohnert Park Foundation. 2. Exhibit A: Memorandum of Understanding with the City of Rohnert Park Foundation. 3. Attachment 1: First Amended and Restated Memorandum of Understanding by and between the City of Rohnert Park and the Federated Indians of Graton Rancheria     RESOLUTION NO. 2017-064 A RESOLUTION OF THE CITY OF ROHNERT PARK AUTHORIZING THE CITY MANAGER TO EXECUTE A MEMORANDUM OF UNDERSTANDING WITH THE CITY OF ROHNERT PARK FOUNDATION TO DISRIBUTE COMMUNITY INVESTMENT RECURRING CONTRIBUTIONS FROM THE GRATON MITIGATION FUND WHEREAS, on April 17, 2013, the City of Rohnert Park (“City”) approved the “First Amended and Restated Memorandum of Understanding by and between the City of Rohnert Park and the Federated Indians of Graton Rancheria” (“MOU”) with the Federated Indians of Graton Rancheria (“Tribe”) which provides, among other things, that the Tribe shall make a quarterly charitable Community Investment Recurring Contribution from the Graton Mitigation Fund to the City of Rohnert Park Foundation (“Recurring Contributions”) to mitigate the Graton Resort and Casino’s impacts on the community of the City of Rohnert Park; and WHEREAS, on or about March 27, 2012, the Tribe and the State of California (“State”) entered into that certain “Tribal-State Compact between the State of California and the Federated Indians of Graton Rancheria”, which is incorporated by reference herein, whereby the Tribe agreed to make payments to the State which would comprise the Graton Mitigation Fund, and whereby the State agreed to pay to the City those funds owed to the Foundation under the MOU, including the Recurring Contributions; and WHEREAS, the Tribe owns and operates the Graton Resort and Casino in Rohnert Park, California; and WHEREAS, the specific purpose of the City of Rohnert Park Foundation (“Foundation”) is to raise and manage funds in connection with civic purposes and projects; and WHEREAS, the City expects to receive the first Recurring Contribution in the fourth quarter of fiscal year 2016-17; and WHEREAS, the City and the Foundation mutually desire to transfer the Recurring Contributions from the City to the Foundation in compliance with the MOU and all applicable Foundation bylaws and policies; and WHEREAS, the Recurring Contribution payments may exceed $50,000; and WHEREAS, the Foundation’s Board Policy No. 1 “Donation and Gift Acceptance” requires that donations totaling more than $50,000 be accepted by the Board of the City of Rohnert Park Foundation through a written agreement; and WHEREAS, the City Council of the City of Rohnert Park desires to enter into a memorandum of understanding with the City of Rohnert Park Foundation to distribute the Recurring Contributions.     NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Rohnert Park as follows: 1. The foregoing recitals are true and correct. 2. The City Manager is authorized and instructed to execute the Memorandum of Understanding Between the City of Rohnert Park Foundation and the City of Rohnert Park to Accept Community Investment Recurring Contributions from the Graton Mitigation Fund (“Acceptance Agreement”) in the form attached hereto as Exhibit A and incorporated by reference herein. 3. The City Manager is authorized to take all actions necessary to carry out the purposes of the Acceptance Agreement. 4. The Director of Finance is authorized to take all actions necessary, including budget appropriations, to carry out the purposes of the Acceptance Agreement. DULY AND REGULARLY ADOPTED this 23rd day of May, 2017. CITY OF ROHNERT PARK ____________________________________ Jake Mackenzie, Mayor ATTEST: _____________________________ JoAnne M. Buergler, City Clerk AHANOTU: _________ BELFORTE: _________ CALLINAN: _________ STAFFORD: _________ MACKENZIE: _________ AYES: ( ) NOES: ( ) ABSENT: ( ) ABSTAIN: ( )     Exhibit A MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF ROHNERT PARK FOUNDATION AND THE CITY OF ROHNERT PARK TO ACCEPT COMMUNITY INVESTMENT RECURRING CONTRIBUTIONS FROM THE GRATON MITIGATION FUND          MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF ROHNERT PARK FOUNDATION AND THE CITY OF ROHNERT PARK TO ACCEPT COMMUNITY INVESTMENT RECURRING CONTRIBUTIONS FROM THE GRATON MITIGATION FUND This Memorandum of Understanding is entered into this ____ day of May, 2017 by and between the City of Rohnert Park Foundation (“Foundation”), a California 501(c)(3) non-profit corporation and the City of Rohnert Park (“City”), a California municipal corporation. WHEREAS, Foundation and City have a mutual interest in investing in the community to serve the citizens of the City; and WHEREAS, the Federated Indians of the Graton Rancheria (“Tribe”) are the owners and operators of the Graton Resort and Casino (“Casino”); and WHEREAS, on April 17, 2013, City and the Tribe entered into that certain “First Amended and Restated Memorandum of Understanding by and between the City of Rohnert Park and the Federated Indians of Graton Rancheria,” a true and correct copy of which is attached hereto as Attachment 1 and incorporated by reference herein, (“MOU”) to mitigate, among other things, the impacts of the Casino on the Rohnert Park community; and WHEREAS, MOU Section 4.2 specifies quarterly “Charitable Contributions” as one of the Community Investment Recurring Contributions to be paid from the Graton Mitigation Fund to the City of Rohnert Park Foundation, subject to certain terms and conditions stated in the MOU (“Recurring Contributions”); and WHEREAS, on or about March 27, 2012, the Tribe and the State of California (“State”) entered into that certain “Tribal-State Compact between the State of California and the Federated Indians of Graton Rancheria”, which is incorporated by reference herein, whereby the Tribe agreed to make payments to the State that would comprise the Graton Mitigation Fund, and whereby the State agreed to pay to City certain funds from the Graton Mitigation Fund, including the Recurring Contributions owed to Foundation under the MOU; and WHEREAS, the City of Rohnert Park Foundation’s Board Policy No. 1 “Donation and Gift Acceptance” requires that donations totaling more than fifty thousand dollars ($50,000) be accepted by the Board through a written agreement; and WHEREAS, the Parties anticipate some Recurring Contributions payments to exceed fifty thousand dollars ($50,000); and WHEREAS, City and Foundation mutually desire to transfer the Recurring Contributions from City to Foundation in compliance with the MOU and all applicable Foundation bylaws and policies; and For valuable consideration, the receipt of which is hereby acknowledged, the Parties to this Agreement agree as follows:     1. Within thirty (30) days of City’s receipt of a Recurring Contributions payment from the State, City shall make a donation in the amount equivalent to that payment to Foundation (“Donation”). 2. Foundation agrees to accept each Donation received from City. 3. If City does not receive a Recurring Contribution from the State for a given quarter, City shall have no obligation to make any Donation to Foundation for that quarter. 4. Either Party may terminate this Memorandum of Understanding without cause upon five (5) days' written notice to the other. 5. The terms and conditions of this Agreement constitute the entire agreement between City and Foundation with respect to the Recurring Contributions. This Agreement may not be altered, amended or modified without the written consent of both Parties. 6. 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. 7. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the last date written below. City of Rohnert Park Darrin Jenkins, City Manager Date Per Resolution ________adopted _________ City of Rohnert Park Foundation Darrin Jenkins, Executive Director Date ATTEST City Clerk Date APPROVED AS TO FORM City Attorney Date     ATTACHMENT 1 First Amended and Restated Memorandum of Understanding by and between the City of Rohnert Park and the Federated Indians of Graton Rancheria FIRST AMENDED AND RESTATED MEMORANDUM OF UNDERSTANDING BY AND BETWEEN THE CITY OF'ROHNERT PARK AND THE FEDERATED INDIANS OF'GRATON RANCHERIA DATED AS OF: March 26,2013 EFF'ECTIVE AS OF: Dett I IJ ,2013 OAK #4821-1906-1267 v4 TABLE OF CONTENTS DEFINITIONS NON-RECURRING MITIGATION AND IMPACT CONTRIBUTIONS RECURRING MITIGATION CONTRIBUTIONS COMMUNITY INVESTMENT RECURRING C ONTRIBUTION.... ...... PAYMENT TE,RMS. ADDITIONAL TRIBAL COVENANTS AND ACKNOV/LEDGMENTS .. TERM AND TERMINATION SUSPENSION EVENTS.............. RENEGOTIATION PROVISION..... SEVERABILITY..... DISPUTE, RESOLUTION PROVISIONS ........ WAIVER OF SOVEREIGN IMMUNITY........ RE,PRESENTATIONS AND V/ARRANTIES . GENERAL PROVISIONS ............ Page 1. 2. îJ. 4. 5. 6. l. 8. 9. 10. 11. 12. 13. t4. ',4 ,,7 ,.9 10 11 15 t6 18 ..18 ..t9 ..20 ..22 22 23 OAK #4821 -1906-126'l v4 I THIS FIRST AMENDED AND RESTATED MEMORANDUM OF UNDERSTANDING (the "MOU") is made this 26th day of March, 2013, by and between the City of Rohnert Park, a municipal organization organized and existing under and by virtue of the laws of the State of California (the "City"), and the Federated Indians of Graton Rancheria, a federally recognized Indian tribe (the "Tribe"). The capitalized terms not otherwise defined herein have the meaning set forth below. RECITALS WHEREAS, the Tribe consists of approximately 1,300 members of Coast Miwok and Southern Pomo descent; and V/HEREAS, in 1966, the federal government terminated its relationship with the Tribe pursuant to the California Rancheria Act of 1958 (Pub. L. 38-453) and transferred title to the lands known as the Graton Rancheria into private ownership; and V/HEREAS, in 2000, Congress restored federal recognition to the Tribe pursuant to the Graton Rancheria Restoration Act ("Restoration Act"), Pub. L. 106-568, 25 U.S.C. $ 1300n er seq.; and V/HEREAS, the Restoration Act required the Secretary of the Interior (the "Secrettry") to take real property identified by the Tribe and located in Marin or Sonoma counties into trust as the Tribe's reservation; and V/HEREAS, in April 2003, the Tribe identified property located on Highway 37 in southern Sonoma County (the "Highway 37 Property") for its reservation and announced plans to develop a resort hotel and gaming facility on a portion of the Highway 37 Property once in trust and deemed eligible for gaming; and V/HEREAS, at the urging of community representatives and environmentalists, the Tribe reconsidered its plans for the Highway 37 Property and, thereafler, donated its rights to the Highway 37 Property to the Sonoma Land Trust for perpetual preservation; and WHEREAS, in August 2003, the Tribe acquired rights to purchase alternative property located on Stony Point Road (the "Stony Point Road Property") west of the urban growth boundary of the City for its reservation and proposed project; and V/HEREAS, in August 2005, to address local land use and environmental concerns, the Tribe abandoned its plans for the Stony Point Road Property and, thereafter, the Tribe purchased approximat ely 254 acres of land (the "254 Acre Parce[") located primarily within the unincorporated arca of the County of Sonoma (the "County"); and WHEREAS, at the request of the City and the County, the Tribe agreed to wait until completion of the environmental review for the proposed Gaming Facility before exercising its righi under the Restoration Act to have lhe 254 Acre Parcel placed into trust; and V/HEREAS, the National Indian Gaming Commission (the "NIGC") conducted four public hearings and provided over 160 days for public comment in preparing a draft and final 1OAK #482 I -1906-1267 v4 environmental impact statement ("EIS") for the casino and hotel project pursuant to the National Environmental Policy Act; and WHEREAS, in October 2010, the NIGC issued its Record of Decision, concluding that the 254 Acre Parcel is eligible for gaming under IGRA and adopting as the prefened action a reduced intensity casino and hotel project (the "Project") that is significantly smaller than the project initially proposed by the Tribe and analyzed as Alternative A in the EIS, to be constructed and operated on approximately 68 acres of the 254 Acre Parcel located within the City urban growth boundary and outside the area identified as community separator in the County General Plan; and WHEREAS, following completion of the environmental review, the Tribe exercised its right under the Restoration Act to have fhe 254 Acre Parcel placed into trust; and WHEREAS, on October 1, 2010, pursuant to the Restoration Act, the Bureau of Indian Affairs of the United States Department of the Interior accepted the 254 Acre Parcel into trust on behalf of the Tribe for the Tribe's reservation (the "Reservation"); and WHEREAS, on March 27,2012, Governor Jerry Brown signed, and on l|l4ay 17,2012, the Legislature subsequently ratified, a class III gaming compact (the "Compact") between the Tribe and State that authorizes the operation of up to three thousand (3,000) Gaming Devices; and WHEREAS, on July 12,2012, the Secretary published notice in the Federal Register that the Compact is considered to have been approved pursuant to IGRA; an V/HEREAS, the Compact obligates the Tribe to pay a percentage of its gaming revenues to the State Gaming Agency on a quafterly basis for deposit into a trust fund called the Graton Mitigation Fund; and WHEREAS, the funds deposited into the Graton Mitigation Fund are to be paid by the State Gaming Agency in the following descending order, until exhausted: (i) the City pursuant to its agreement with the Tribe, (ii) the County pursuant to its agreement with the Tribe, and (iii) to the Revenue Sharing Trust Fund or the Tribal Nation Grant Fund; and V/HEREAS, the Tribe and the City are parties to a Memorandum of Understanding made effective as of October 14,2003 (the "Original MOU"), providing for funds to mitigate Project impacts within the City and make investments in and contributions to the Rohnert Park community; and WHEREAS, the City and the Tribe are parties to a Joint Exercise of Powers Agreement for Wastewater Services made effective as of July 23,2012 (the "Wastewater Services JEPA"), to provide City wastewater services to the Reservation, including the Project; and WHEREAS, the City, the County, and the Tribe are parties to a Joint Exercise of Powers Agreement for Implementation of Mitigation Measures for V/idening Wilfred Avenue made effective as of September 25,2012 (the "Wilfred Avenue JEPA"), under which the Tribe has 2OAK #4821-1906-1267 v4 agreed to pay the full cost of improvements to Wilfred Avenue from Highway 101 west to Stony Point Road and the full cost of improvements to Business Park Drive; and WHEREAS, the County and the Tribe are parties to an Intergovernmental Mitigation Agreement made effective as of October 23,2012 (the "County Agreement"), under which the Tribe will make payments to mitigate potential Project impacts, including for police and fire protection services, water conservation, Highway 101 improvements, health and human setvices, and for parks and open space; and WHEREAS, the City and the Tribe have determined the need to restate and amend the Original MOU, entered into more than nine (9) years ago, to reflect changes in the following: the relocation of the Project to a site within the City's urban growth boundary and adjacent to the City's incorporated boundaries, the Project scope, contributions to be made by the Parties prior to the Opening Date, the payments from the Graton Mitigation Fund, the Project's demands on City services, and other matters; and V/HEREAS, the Tribe fuither intends to advance a cooperative and mutually respectful govemment-to-government relationship with the City; and V/HEREAS, the Tribe is committed to entering into a voluntary contractual arrangement with the City pursuant to which the Tribe agrees to make certain financial contributions and community investments to mitigate various impacts that may arise in connection with the Project; and V/HEREAS, this MOU does not constitute a "project" for CEQA purposes because it involves the creation of a government funding mechanism and/or other government fiscal activity. The terms in this MOU do not involve any commitment to any specific "project" which may result in a potentially significant physical impact on the environment and only requires the Tribe to make mitigation payments for identif,red mitigation measures and programs. This MOU does not obligate the City to undertake any specified mitigation measure or program or construction project nor does it set a time for development as those terms are used in CEQA; and WHEREAS, the City recognizes and acknowledges that the Reservation is located outside the incorporated boundaries of the City and therefore the City has no authority to exercise jurisdiction over the Reservation or the Project. The City does not have legal authority to deliberate on, approve, disapprove, or otherwise exercise judgment regarding the Project. The City is therefore not deliberating on, approving, disapproving or otherwise exercising judgment regarding the Project by entering into this MOU; and V/HEREAS, the City acknowledges that the contributions and investments to be made by the Tribe and the other covenants made by the Tribe as set forth in this MOU are intended to be sufficient to mitigate the impacts of the Project on the City; and WHEREAS, in acknowledging the contributions and investments to be made by the Tribe as set forth in this MOU, the City intends to use the funding provided by the Tribe to mitigate impacts on City resources and services such as traffic, staffing levels in public safety, public works, trafhc circulation, neighborhood upgrades, workforce housing, problem gambling, storm water drainage, and other impacts; and JoAK#4821-1906-1267 v4 WHEREAS, the purpose of this MOU is to set forth the understandings of the Tribe and the City on the topics expressly set forth in this MOU. NOW, THEREFORE, in consideration of the above and of the mutual promises herein contained, the suffrciency of which is acknowledged, the Parties hereby agree as follows: 1. DEFINITIONS The terms not defined elsewhere in this MOU shall have the following meanings: 1.1 "CEQA" means the California Environmental Quality Act, California Public Resources Code $ 21000 et seq., and any amendments thereto, and the regulations promulgated thereunder, as the same may be amended or modif,red from time to time. r.2 *City" means the City of Rohnert Park, a municipal corporation organized and existing under and by virtue of the laws of the State of California. 1.3 "Compact" means the Tribal-State Compact between the State and the Tribe, governing the conduct of Gaming Activities on the Reservation pursuant to IGRA, as executed on March 27, 2012 by the State and March 26, 2012 by the Tribe, considered to have been approved by the Secretary pursuantto 25 U.S.C. $ 2710(dX8)(C), notice of which was published in the Federal Register on July 12, 2012 (a correction to the notice was published July 23,2012), as the same may be amended from time to time, and which is available online at; http : I I gov .ca. gov/docs/Graton_Compact_executed.pdf. 1.4 "Count¡/" means the County of Sonoma, California. 1.5 "Count¡r Agreement" means the Intergovernmental Mitigation Agreement betweenthe County and the Tribe made effective as of October 23,2012, as the same may be amended from time to time. t.6 "CPI Adjustment" means an annual increase from the dollar amount applicable to the previous year which is equal to the annual increase in the Consumer Price Index for all urban consumers in the San Francisco-Oakland-San Jose area. 1.7 "Day Baseball Style Arbitration" means the parties submit best, last and final offers to an arbitrator. After hearing presentations from each party, the arbitrator's only option is to choose between the two offers submitted by each party. The arbitrator cannot split the difference between the two offers nor select an alternative position. 1.8 "Due Dates" mean each and every date upon which contributions are due and expected to be received from the State Gaming Agency, as are more particularly described in Exhibit A hereto. 4OAK #4821-1906-1267 v4 1.9 "Gaming Activities" means the class III gaming activities authorized by section 3.1 of the Compact. 1.10 "Gaming Device" means any slot machine within the meaning of article IV, section 19, subdivision (f1 of the California Constitution as defined under section 2.10 of the Compact. 1.11 "Gaming Facility" or "Facilify" means any building in which Gaming Activities or any Gaming Operations occur, or in which the business records, teceipts, or funds of the Gaming Operations are maintained (excluding offsite facilities dedicated to storage of those records and financial institutions), and all rooms, buildings, and areas, including hotels, restaurants, parking lots, and walkways, a principal purpose of which is to serve the activities of the Gaming Operations rather than providing that operation with an incidental benefit as defined under section 2.I2 of the Compact. I.l2 "Graton Mitigation Fund" means the account established by the State Gaming Agency for the receipt of revenues paid by the Tribe pursuant to section 4.5 of the Compact and for the distribution of such revenues as described in section 4.5.1 of the Compact. I.I3 "EIS" means the environmental impact statement prepared by the NIGC for the Project pursuant to NEPA, final notice of which was published on page 9007 of Volume 74 of the Federal Register on February 27,2009. l.l4 "IGRA" means the Indian Gaming Regulatory Act of 1988 (P.L. 100-497,18 U.S.C. $ 1166 et seq. and25 U.S.C. $ 2701 et seq.), and any amendments thereto, and the regulations promulgated thereunder, as the same may be amended or modified from time to time. 1.15 "NEPA" means the National Environmental Policy Act of 1970, as amended (42 U.S.C. $S 4371 et seq.), and the regulations promulgated thereunder, as the same may be amended or modified from time to time. 1.16 "NIGC" means the National Indian Gaming Commission established pursuant to IGRA. I.l7 "Opening Date" or "Opening" means the first date on which the Gaming Activities at the Gaming Facility are open and available for use by the public. 1.18 "Parties" means the City and the Tribe as signatories to this MOU 1.19 "Project" means the development, construction and operation on the Reservation of all or any part of the reduced intensity project described as Variant H-subi and identihed as the Preferred Action Alternative in the Record of Decision. 5OAK #4821-1906-1267 v4 1.20 "Public Entify" means the State and any county, city, district, public authority, public agency and any other political subdivision or public corporation in the State, including, without limitation, the City and the County. l.2l "Quarter" means any one of the following three month periods: January through March, April through June, July through September, and October through December. If the Gaming Activities commence after the first day of any calendar quarter, the first Quarter for purposes of this MOU shall cover the period from the commencement of Gaming Activities to the end of the first full calendar quarter. L22 "Record of Decision" means the Record of Decision for the environmental impact statement prepared by the NIGC for the Project pursuant to NEPA, notice of which was published on page 63511 of Volume 75 of the Federal Register on October 15,2010. 1.23 "Reservation" means certain contiguous parcels totaling approximately 254 acres of land, including approximately 5 acres currently located within the City and another 68 acres currently located within the urban growth boundary of the City, which was taken into trust by the Bureau of Indian Affairs of the United States Department of Interior on October 1,2010, or any portion of such land, which is held by the United States of America in trust for the benefit of the Tribe. I.24 "Restoration Act" means the Graton Rancheria Restoration Act (Pub. L. 106- 568,25 U.S.C. $ 1300n). 1.25 "Secretary" means the Secretary of the United States Department of the Interior I.26 "Special Enforcement Activities" means public safety activities including, but not limited to, combating gangs, illegal drug use and other criminal activity in the City. I.27 "State" means the State of California. 1.28 "State Gaming Agency" means the entities authorized to: administer the Graton Mitigation Fund or other mitigation monies paid by the Tribe to the State for distribution to other public and private entities; and investigate, approve, regulate and license gaming pursuant to the Gambling Control Act (Chapter 5 (commencing with section 19800) of Division 8 of the California Business and Professions Code), or any successor statutory scheme, and any entity or entities in which that authority may hereafter be vested. I.29 "Tribe" means the Federated Indians of Graton Rancheria, a federally recognized Indian tribe. 1.30 "'Wastewater Services JEPA" means the Joint Exercise of Powers Agreement by and between the City and the Tribe for Vy'astewater Services made effective as of July 23,2012, as the same may be amended from time to time. 6OAK #4821-1906-1267 v4 1.31 "Wilfred Avenue JEPA" means the Joint Exercise of Powers Agreement by and between the City, the County, and the Tribe for Implementation of Mitigation Measures for Widening 'Wilfred Avenue made effective as of September 25, 2012, as the same may be amended from time to time. 2. NON-RECURRING MITIGATION AND IMPACT CONTRIBUTIONS 2.1 DnvnlopnrENT FEE CoxrrunurroN PRIoR To OIENING. To mitigate impacts of the Project on the City, its staff and other resources, the Tribe shall make a non- recurring cash contribution to the City of two million six hundred sixty four thousand dollars (52,664,000) in lieu of the development and related fees which the City would otherwise receive from a developer for the development of an equivalent commercial project (as if the Project was not located on the Reservation, and as if the entire Reservation was located within the boundaries of the City). The Tribe shall pay the non-recurring development fee to the City within thirty (30) calendar days following the Effective Date of this MOU, as is more particularly described in Section 7.1 hereof. 2.2 Ltw ENToRCEMENT CoNrnrnurloN PRIoR To OrENING. To mitigate impacts of the Project on law enforcement resources, the Tribe shall make a non-recurring cash contribution to the City of five hundred thousand dollars ($500,000) for Special Enforcement Activities in the City. The Tribe shall make the non- recurring law enforcement payment to the City in four (4) successive, quarterly installments of equal amounts of one hundred twenty five thousand dollars ($125,000) on July 10,2013, October 70,2013, January 10,2014 and April 10, 20t4. 2.3 Frnn aNo Punr.rc Slrnrv CoNrmnurIoNS Arrnn OpnNrt{c. To mitigate impacts of the Project on fire and public safety, the Tribe shall make the following non-recuffing contributions set forth in this Section 2.3. 2.3.1 The Tribe shall make a non-recuning cash contribution to the City of three million seven hundred fifty thousand dollars ($3,750,000) to develop and construct a new public safety building west of Highway 101 within the City (the "Public Safety Building"). The above-referenced contribution shall be made in eight (8) successive, quarterly installments of equal amounts commencing on the first business day of the seventh (7th) Quarter after the Opening Date. If the amount paid exceeds the actual cost of the Public Safety Building, the City shall (i) within one hundred twenty (120) days af\er a certificate of occupancy is issued for the Public Safety Building, provide written notif,rcation to the Tribe of the amount of the excess payment, and (ii) set aside the excess amount and credit such amount against the next payment due to the City from the Tribe pursuant to this MOU. 2.3.2 The Tribe shall make a non-recurring cash contribution to the City of one million two hundred thousand dollars ($1,200,000) to be used by the City 1OAK #482 l-1906-1267 v4 2.4 2.5 solely for the purchase and equipping of a ladder hre truck to be stationed at the Public Safety Building and capable of servicing the hotel which will be constructed as part of a later phase of the Project. The above- referenced contribution shall be made on the first business day of the eleventh (11th) Quarler after the Opening Date. 2.3.3 The Tribe shall make a non-recuring cash contribution to the City of four hundred ten thousand dollars ($410,000) to be used by the City solely for the purchase of public safety andlor other City vehicles required to mitigate impacts of the Project. The above-referenced contribution shall be made in four (4) successive, quarterly installments of one hundred two thousand five hundred dollars ($102,500) commencing on the first business day of the seventh (7th) Quarter after the Opening Date. Tnarrlc Ivrp¡,crs AND OrHEn Rrcnr oF'WAy ltvrpRovntrENT CoNTRIBUTIoN Arrnn OpBNINc. In order to mitigate potential impacts which are attributable, in whole or part, to the Project, which have not been identified as of the date of this MOU, the Tribe shall make a non-recurring cash contribution to the City of up to a maximum of four hundred hfty thousand dollars ($450,000) to be used by the City, on an as needed basis, to signalize or improve rights of way, plan for or construct rights of way, or to otherwise mitigate traffic impacts of the Project ("TraffÏc Improvements"). Any Traffic Improvement shall be mutually agreed upon by the City and the Tribe prior to the Tribe making any cash contribution. Following agreement by the parties on the actual Trafhc Improvements, the above-referenced contribution shall be made by the Tribe on the first business day of the next Quarter following a written request for such a contribution by the City to the Tribe. Mosrr,n HovrB P¡.Rx CoNrRrnurIoN AFTER OIENING. In order to mitigate potential impacts of the Project on the Rancho Verde Mobile Home Park, the Tribe shall make a non-recurring cash contribution to the City of up to a maximum of seven hundred thousand dollars ($700,000) to enable the City to implement measures, which are mutually agreed upon by the City and the Tribe to mitigate the preexisting storm water flooding problem at Rancho Verde and the Martin Avenue area and to mitigate any significant noise impacts at Rancho Verde identified in the EIS and/or Record of Decision ("Stormwater Measures"). It is understood that certain Stormwater Measures have already been constructed in the Martin Avenue business park area, including installation of check valves on existing storm drain outlets, construction of a portable pump station, and installation of a bypass pipeline, at a cost of one hundred eighty thousand dollars ($180,000). In the event additional Stormwater Measures have been agreed to by the City and the Tribe, the contribution which shall not exceed five hundred twenty thousand dollars ($520,000) shall be made by the Tribe on the first business day of the next Quarter following a written request for such contribution by the City to the Tribe; which request shall not be made prior to the Opening Date. 8OAK #4821-1906-1267 v4 3. RECURRINGMITIGATIONCONTRIBUTIONS L,q.w ENToRCEMENT RncunntNc CoNrnlnurloN. Following the Opening Date, the Tribe shall make a recurring cash contribution to the City of five hundred thousand dollars ($500,000) per annum for Special Enforcement Activities to mitigate the ongoing impacts of the Project on public safety in the City. The above-referenced contribution shall be made by the Tribe in four (4) successive, equal, quarterly installments commencing on the first business day of the third (3rd) Quarter after the Opening Date and on the first business day of every Quarter thereafter. J.Z Pnonr.nu G¿.vrnr,rNc RBcURRING CoNTRIBUTIoN. Following the Opening Date, the Tribe shall make a recurring cash contribution to the City of one hundred twenty five thousand dollars ($125,000) per arìnum to mitigate the social impacts of the Project on the City. The City shall grant such payment to an organization dedicated to the treatment and prevention of problem gambling or pathological gambling disorders. The recipient organization shall be determined by the City, with approval by the Tribe, which approval shall not be unreasonably withheld. The above-referenced contribution shall be made by the Tribe in four (4) successive, equal, quarterly installments commencing on the first business day of the third (3rd) Quarter after the Opening Date and on the first business day of every Quarter thereafter. -1.-'t W¿.rnnw¡.y RECURRING CoNTRIBUTIoN. Following the Opening Date, the Tribe shall make a recurring cash contribution to the City of fifty thousand dollars ($50,000) per annum to be used solely to address storm water drainage matters to mitigate potential impacts of the Project on storm water drainage. The above- referenced contribution shall be made by the Tribe in four (4) successive, equal, quarterly installments commencing on the f,rrst business day of the third (3rd) Quarter after the Opening Date and on the first business day of every Quarter thereafter. 3.4 SUppInUTNTALRncURRTNGCoNTRIBUTIoNS. 3.1 3.4.r 3.4.2 Suppr-nnrnNTAt. RncuRRlNG CoNTRIBUTIoN. Following the Opening Date, the Tribe shall make a recurring cash contribution to the City of five million dollars ($5,000,000) per annum to mitigate potential impacts of the Project on the City. The above-referenced contribution shall be made by the Tribe in four (4) successive, equal, quarterly installments commencing on the first business day of the third (3rd) Quarter after the Opening Date and on the hrst business day of every Quarter thereafter. These payments shall be paid from the Graton Mitigation Fund which is expected to include deposits made by the Tribe within thirty (30) days of the close of the prior calendar quafier. RncunnrNc PUBLIc SnRvrcns CoNrnlsurloN. Following the Opening Date, the Tribe shall make a recurring cash contribution to the City of two 9OAK #4821-1906-1267 v4 million three hundred sixty nine thousand dollars ($2,369,000) per annum to mitigate potential impacts of the Project on City services. It is the intent of the City to use these funds in part to provide for additional stafhng levels to mitigate the potential impacts on public safety and/or other City services. The above-referenced contribution shall be made by the Tribe in four (4) successive, equal, quarterly installments commencing on the first business day of the third (3rd) Quarter after the Opening Date and on the fìrst business day of every Quarter thereafter. These payments shall be paid from the Graton Mitigation Fund which is expected to include deposits made by the Tribe within thirty (30) days of the close of the prior calendar quarter. 4, COMMUNITYINVESTMENTRECURRINGCONTRIBUTION To make investments in the Rohnert Park schools, housing and general community and to mitigate potential impacts of the Project on the Rohnert Park schools, housing and general community, from and after the Opening Date, subject to Section 5.2.3 of this MOU, the Tribe shall make investments in and contributions to the Rohnert Park community as follows: 4.I Scnool CoNrnIsurIoN. The Tribe shall make a recurring cash contribution to the Cotati-Rohnert Park Unified School District of one million dollars ($1,000,000) per arìnum. The use and distribution of the funds shall be governed by an ad hoc committee which shall meet at least annually and shall consist of two (2) members designated by the Tribe, two (2) members designated by the Cotati-Rohnert Park Unified School District and one (1) member chosen by the other four (4) members. The above-referenced contribution shall be made by the Tribe in four (4) successive, equal, quarterly installments commencing on the first business day of the third (3rd) Quarter after the Opening Date and on the first business day of every Quarter thereafter. These payments shall be paid from the Graton Mitigation Fund which is expected to include deposits made by the Tribe within thirty (30) days of the close of the prior calendar quarter. 4.2 Curnrr,rnr,ECoNTRIBUTIoNS. 4.2.1 The Tribe shall make a recurring cash contribution of one million dollars ($1,000,000) per annum to the Rohnert Park Foundation. The above- referenced contribution shall be made by the Tribe in four successive, equal, quarterly installments commencing on the f,rrst business day of the third (3rd) Quarter after the Opening Date and on the hrst business day of every Quarter thereafter. These payments shall be paid from the Graton Mitigation Fund which is expected to include deposits made by the Tribe within thirty (30) days of the close of the prior calendar quarter. 4.2.2 The Tribe shall make a separate, recuning cash contribution of one million dollars ($1,000,000) per annum to a charitable organization(s) or other organization(s) of its sole selection which enhances the City, Sonoma OAK #4821-l 906-1267 v4 10 State University, or otherwise mitigates the impacts of the Project. The above-referenced contribution shall be made by the Tribe in four (4) successive, equal, quarterly installments commencing on the first business day of the fifteenth (15th) Quarter after the Opening Date and on the first business day of every Quarter thereafter. The Tribe shall provide the City with written notice of its payment to the organization(s) of its choice within fifteen (15) calendar days of such payment. These payments shall be paid from the Graton Mitigation Fund which is expected to include deposits made by the Tribe within thirty (30) days of the close of the prior calendar quarter. ConnmuNlrv CoNrRlnurIoN. The Tribe shall make a recurring cash contribution to the City of one million dollars ($1,000,000) per annum to be used for neighborhood upgrade or workforce housing programs. The City alone shall have the authority to determine the use and distribution of these funds. The above-referenced contribution shall be made by the Tribe in four (4) successive, equal, quarterly installments commencing on the f,rrst business day of the third (3rd) Quarter after the Opening Date and on the first business day of every Quarter thereafter. These payments shall be paid from the Graton Mitigation Fund which is expected to include deposits made by the Tribe within thirty (30) days of the close of the prior calendar quarter. 4.3 5. PAYMENT TERMS 5.1 Sr¿.rn GavuNc AcBNcv PavvrnNts. 5.1.1 This MOU requires the Tribe to make the contributions to the City specified in Sections 2.3 through Section 4 hereof as specified on the Due Dates, which are attached hereto as Exhibit A and incorporated herein by this reference. Within thirty (30) calendar days of the Opening Date, and annually thereafter in June of each year, the City shall prepare an annual payment schedule indicating the contributions to be made within the four Quarters of that year pursuant to this MOU ("Annual Payment Schedule"). The form of Annual Payment Schedule for 201412015 is attached hereto as Exhibit B and shall be updated to incorporate CPI data. The City shall submit the Annual Payment Schedule to the State Gaming Agency each year after calculating the CPI adjustments provided for in Section 5.5. 5.t.2 The Compact obligates the Tribe to make payments into the Graton Mitigation Fund. The State Gaming Agency is then obligated to disperse revenues from the Graton Mitigation Fund to the City according to the terms of this MOU pursuant to Compact section 4.5). All remaining funds in the Graton Mitigation Fund will then be dispersed first to the County, and then to the Revenue Sharing Trust Fund and/or the Tribal Nations Grant Fund according to the terms of the Compact. OAK #4821-1906-1267 v4 11 The Parties expect the State Gaming Agency to make the payments due to the City pursuant to this MOU and the Compact on the Due Dates reflected on Exhibit A. The State Gaming Agency will make the first payment from the Graton Mitigation Fund following the end of the first full Quarter after the Opening Date. The timing of the payments in this MOU have taken the above referenced expectation into account and the Due Dates listed in Exhibit A are the latest dates upon which the City is to receive payments from the State Gaming Agency on behalf of the Tribe. In the event of insufhcient revenues in the Graton Mitigation Fund to make all the contributions set forth in this MOU, and the payments set forth in sections 3(a), 3(b), 3(d) and 3(e) of the County Agreement, the State Gaming Agency shall disperse funds from the Graton Mitigation Fund in the following priority order, until exhausted: (i) the Guaranteed Contributions to the City (defined in Section 5.2.1) shall be paid first, (ii) the payments guaranteed to the County in sections 3(a), 3(b), 3(d), and 3(e) of the County Agreement shall be paid second, (iii) the contributions to the City established in Section 4.1, 4.2 and 4.3 of this MOU in such amounts as available for distribution orl a pro rata basis shall be paid third, (iv) the payments to the County established in sections 3(c), 3(f), 3(g),3(h),3(i) and 3O of the County Agreement shall be paid fourth, (v) the payments established in section 5(e) of the County Agreement regarding reimbursements shall be paid hfth, (vi) two hundred fifty thousand dollars ($250,000) of the quarterly payment for community benefits set forth in 4(a) of the County Agreement shall be paid sixth, (vii) the contributions established in Section 5.3 of this MOU regarding reimbursements shall be paid seventh, and (viii) any other payments due out of the Graton Mitigation Fund shall be paid eighth. 5.2 Gu.rRrurnnD CoNTRTBUTToNS By rHE Tnrnn. 5.2.1 The Parties agree that certain contributions under this MOU are of such impofiance to the mitigation of the Project's impacts that the City should have a guarantee that those contributions will be made, regardless of the availability of funds in the Graton Mitigation Fund. Accordingly, in the event that the State Gaming Agency fails to timely disperse to the City any payment referenced in Sections 2.3 through and including Section 2.5, and Section 3 (including all subdivisions thereof), by the Due Dates, then, within ten (10) days following the Due Dates, the Tribe shall make all of the payments due under Sections 2.3 tfuough and including Section 2.5 and Sections 3 of this MOU to the City ("Guaranteed Contributions"). 5.2.2 The contributions under Sections 2.1 and 2.2 are not addressed hereunder because they must be paid by the Tribe prior to the Opening Date, so these payments are not contingent on the availability of funds in the Graton Mitigation Fund. 5.1.3 5.t.4 OAK #4821-1906-1267 v4 l2 5.2.3 5.3 RnrvrnuRsEMENTS. s.3. 1 The contributions under Section 4.1, 4.2 and 4.3 are not addressed hereunder because the Parties do not intend for those contributions to be guaranteed by the Tribe in the event that the State Gaming Agency lacks the funds in the Graton Mitigation Fund to make the contributions. Payments required under Section 4.7, 4.2 and 4.3 shall be made if sufficient funds are available, as established in Section 5.1.4. RermnuRsEMENTS oF CoNTRTBUTToNS M¡,rn By rHE TRrnB To rHE Crrv. The City agrees to use its best efforts, to the extent such action is authorized by law or statute, to request reimbursement of contributions previously made by the Tribe as described below from the State Gaming Agency. In the event the City receives any reimbursement from the State Gaming Agency for contributions previously made by the Tribe as described below, the City shall reimburse the Tribe any payments the City receives from the State Gaming Agency which are specifically delineated for purposes of reimbursing the Tribe ("Reimbursements"). The City shall make such Reimbursements available to the Tribe within thifty (30) calendar days of receipt thereof. However, in no event shall the City be liable to the Tribe to make any payment of Reimbursements unless the City has received said Reimbursements from the State Gaming Agency. In the event the City does not receive Reimbursements from the State Gaming Agency for the specific purpose of reimbursing the Tribe, the City shall incur no liability and the Tribe agrees not to initiate any litigation or bring any other claims against the City regarding the same. The Reimbursements which the City will seek pursuant to this Section 5.3.1 are as follows: A. RnrvrnuRsEMENT oF Gu¡,naNrnnr CoNrRrnurroNs. To reimburse the Tribe for mitigation payments previously made by the Tribe as Guaranteed Contributions, the City shall reimburse the Tribe any Guaranteed Contributions the City receives from the State Gaming Agency. B. RUNTSURSEMENT FoR'WTLFRED AvENUE IMpRovEMENTS. The Parties acknowledge and agree that the Tribe has and will incur significant costs for road improvements to Wilfred Avenue and Business Park Drive pursuant to the 'Wilfred Avenue JEPA and that funds paid by the Tribe into the Graton Mitigation Fund are intended to pay for such off- reservation mitigation costs. Accordingly, to reimburse the Tribe for the payments for improvements to Wilfred Avenue and Business Park Drive made pursuant to the Wilfred Avenue JEPA ("Wilfred Improvement Reimbursement"), the City shall reimburse the Tribe any Wilfred Improvements Reimbursement the City receives from the State Gaming Agency. O AK # 4821 -'l 906- 1267 v4 13 5.4 C. RuvrnunsEMBNT noR Wrlrnnt AvBNUB MUNTENANCE. To reimburse the Tribe for the payments to the City which mitigate the costs associated with the maintenance of Wilfred Avenue which costs are initially two hundred eighty eight thousand two hundred foufieen dollars ($288,214) per annum and are required to be made pursuant to Section 6.6.2 of the Wilfred Avenue JEPA ("\ililfred Maintenance Reimbursement"), the City shall reimburse the Tribe arry V/ilfred Maintenance Reimbursement the City receives from the State Gaming Agency. D. Rnrn¿nuRSEMENT FoR DnvnloptuBNt Fnn CoNrnrnurroN Pnton ro OPENING. To reimburse the Tribe for the non-recurring cash contribution of two million six hundred sixty four thousand dollars (52,664,000) in lieu of development and related fees to mitigate the impact of the Project on City staff and other resources as set forth in Section 2.1 of this MOU ("Development Fee Contribution"), the City shall reimburse the Tribe any Development Fee Contribution the City receives from the State Gaming Agency. E. RnrmnunsEMENT FoR Spncrll ENroRcnuBNr Acrrvrrrns CoNrRrnurIoN. To reimburse the Tribe for the non recurring cash contribution for contributions made to mitigate impacts on law enforcement activities as set forth in Section 2.2 of this MOU paid by the Tribe prior to the Opening Date ("SEA Reimbursement") the City shall reimburse the Tribe any SEA Reimbursement the City receives from the State Gaming Agency. DnrucrroNs FoRArvaNcn PlvrrBNrs. The City shall deduct the amount of the contributions which the Tribe made to the NET referenced in subsection 3(d) of the Original MOU ("NET Payments") less amounts paid by the City for mitigation which the Tribe agreed to pay pursuant to the Original MOU, including storm water improvements to Martin Avenue, installation of an on-demand traff,rc signal for the Rancho Verde Mobile Home Park, and relocation of the repeater system from the former Cusher's Stadium to the existing public safety building ("City Mitigation Payments"). It is agreed that the NET Payments minus the City Mitigation Payments equals two million four hundred nine thousand seven hundred forty five dollars (52,409,745) ("Deduction Amount"), The Deduction Amount shall be deducted from the contributions due to the City under Section 4.2.1 of this MOU in twelve (12) equal, successive quarterly installments commencing on the first business day of the third (3rd) Quarter after the Opening Date and continuing on the first business day of the next eleven (1i) Quarters thereafter. In the event that there are insuff,rcient payments made from the Graton Mitigation Fund to the City under Section 4.2.1 fuom which to deduct the above- described amounts, the remainder shall be deducted from each successive Quarter, until satisfied. In no event shall the City be obligated to take deductions from other payments made under this MOU. OAK #4821-1906-1267 v4 14 5.7 6. ADDITIONAL TRIBAL COVENANTS AND ACKNOWLEDGMENTS 5.5 5.6 6.1 6.2 6.3 CPI Al.lusrMENT. All recurring contributions and deductions described in this MOU shall be increased annually by the CPI Adjustment, which shall be effective on July 1 of each year following the Opening Date. For the purposes of this MOU, the April to April index shall be effective to July i st. Coi,ruNcnNT PAvMENTS. Notwithstanding any other provision of this MOU, the Parties acknowledge and agree that except for the non-recurring payments to commence prior to the Opening Date as set forth in Sections 2.1 and 2.2 of this MOU, the Tribe's mitigation contributions shall be contingent upon the occunence of the Opening Date and the continuation thereafter of Gaming Activities. In the event the Opening Date does not occur for any reason, mitigation payments payable after the Opening Date shall not be due. Pu¡lrc ArrnrnurroN. The City shall generally identify and publicly attribute mitigation measures and community investments and projects funded and supported by the Tribe, including, but not limited to, in the City budget process. BuIlorxc AND SAFETv CoDES. The Parties acknowledge and agree that the Gaming Facility is subject to the California Building Code and the California Public Safety Code applicable to the County, as set forth in Titles 19 and 24 of the California Code of Regulations, and, pursuant to the Compact, is subject to plan checks, building inspections, and annual certification that the Gaming Facility is operated in conformity with the applicable codes. Frnn rNo EvrnncnNcy SERvICES. The Parties acknowledge and agree that the Gaming Facility is subject to Title 19 of the California Code of Regulations, the California Building Code, and the California Public Safety Code applicable to similar facilities in the County, and that the Compact requires that the Gaming Facility, as set forth in Titles 19 and 24 of the California Code of Regulations, and, pursuant to the Compact, is subject to regular inspections to ensure that the Gaming Facility meets a reasonable standard of fire safety and life safety. Law ENroRCEMENT. To fuither mitigate potential impacts of the Project on law enforcement resources, the Tribe shall: 6.3.1 adopt rules prohibiting anyone under 2l years of age from gambling; 6.3.2 adopt employee training programs and policies relating to responsible alcoholic beverage services; 6.3.3 conduct background checks of all gaming employees; 6.3.4 provide a full complement of security personnel at the Project at all times; and OAK #4821-1906-1267 v4 15 6.3.5 adopt programs and policies which discourage gang members from visiting the Gaming Facility. EunRcnNcy MEDICAL SERVICES. To mitigate potential impacts of the Project on City emergency medical services, the Tribe shall provide (i) emergency medical training to certain members of its security staff, and (ii) emergency medical equipment, including defibrillators, at the Gaming Facility. SolIo W¡.srn DIspos,u. To mitigate potential impacts of the Project on solid waste disposal resources, the Tribe shall, to the extent determined by the Tribe to be feasible and commercially reasonable, implement single stream recycling and green waste diversion. Sronvl'W¡.rpn Dn¡INlcB. To mitigate potential impacts of the Project on storm water drainage resources, the Tribe shall obtain a National Pollution Discharge Elimination System permit from the United States Environmental Protection Agency if required by the federal Clean Water Act. Errplovnn RBcnuIrvrENT. To mitigate potential impacts of the Project on local work forces, the Parties acknowledge that the Project is subject to (i) a Project Labor Agreement with the Sonoma, Lake, Mendocino County Building & Construction Trades Council, and (ii) a Neutrality and Card Check Agreement with I-INITE HERE. The Tribe shall implement a hiring preference for Native Americans and for City residents subject to collective bargaining agreements and federal employment laws and regulations. R¡.Ncno Vnnoo Monrln HouB P¡.nx. To mitigate potential impacts of the Project on the Rancho Verde Mobile Home Park, the Tribe shall not purchase the Rancho Verde Mobile Home Park for a period of twenty (20) years from the date of the Original MOU. No Golr Counsp. To mitigate potential impacts of the Project on City golf courses, the Tribe shall not construct a golf course on the Reservation until the earlier of: (i) twenty (20) years from the effective date of this MOU, or (ii) the date on which the aggregate number of rounds of golf played on courses existing in the City on the effective date of this MOU exceeds 150,000 rounds in any given calendar year. 7. TERM AND TERMINATION l.l Ennncuvn DlrB. This MOU shall not become effective unless and until the following events have occurred: 7 .l.l This MOU has been approved by the City Council of the City, approved as to form by legal counsel for the City and executed and delivered by the City; and 6.4 6.5 6.6 6.7 6.8 6.9 OAK #4821-1906-1267 v4 t6 7.2 7.3 7.4 7.5 7 .1.2 This MOU has been approved by the Tribal Council and the General Council of the Tribe, approved as to form by outside legal counsel to the Tribe, and executed and delivered by the Tribe. ExprRnrroN DArE. Once effective, this MOU shall be in full force and effect until the later of (i) December 31, 2033, or (ii) the date the Compact or any extension thereof expires or is terminated ("Expiration Date"). Notwithstanding the foregoing, this MOU shall be automatically extended for any period that Gaming Activities continue to be operated on the Reservation and the terms (including the Tribe's obligation to make all payments due pursuant to this MOU) shall be in full force and effect until the Parties meet, confer and renegotiate new terms of a memorandum of understanding as provided for in Section 7.3 hereof. Based on the foregoing, the terms of this Amended MOU shall expire when the parties successfully renegotiate and adopt a new memorandum of understanding, thereby superseding this Amended MOU. MOU RnNncorrATIoNS. If the Tribe enters into a new tribal-state gaming compact ("New Gaming Compact"), extends the term of the Compact ("Compact Extension Agreement"), or the Expiration Date occurs, commencing not later than ninety (90) days following the Legislature's adoption of the New Gaming Compact, the Legislature's adoption of a Compact Extension Agreement, or the Expiration Date, the Parties shall meet, confer and renegotiate with respect to the provisions of this MOU that provide for mitigation and community benefit payments made by the Tribe under this MOU ("Compact Extension Renegotiations"). If the Parties are unable to agree upon the dollar amounts necessary to maintain substantial mitigation of impacts and a comparable level of community investments within one hundred and eighty (180) days of commencing Compact Extension Renegotiations, the Parties may trigger the procedures for dispute resolution contained in Section 11 and, if unable to reach agreement, an arbitrator shall determine in a Day Baseball Style Arbitration the amount necessary to retain substantially the same overall level of support for mitigation and community benefits contemplated in this MOU. ErrBcr oF ExpIRATIoN oR TnnurN,tuoN. Upon the expiration, as provided for in Section 7.2, or termination, as provided for in Section 7.5, of this MOU, the provisions of this MOU shall be of no further force and effect and none of the provisions of this MOU shall survive such expiration or termination; provided, however, that the Tribe shall make contributions pursuant to the terms of this MOU which became due and payable prior to any expiration date; and provided, further, that, if this MOU terminates for reasons unrelated to a default by the City, the Tribe shall make any contributions pursuant to the terms of this MOU which became due and payable prior to such termination date. TnRvrrxluoN. Unless otherwise agreed by the Parties, this MOU shall automatically terminate in the event, and on the date, that the Tribe: (i) permanently ceases development and construction of the Project without having commenced Gaming Activities, or (ii) permanently ceases the operation of all OAK #4821-1906-1267 v4 l7 Gaming Activities on the Reservation and the provisions of Section 8.1 do not apply. 8. SUSPENSION EVENTS 8.1 If, due to Force Majeure (as hereinafter defined), an act of God, valid business considerations or any other reason, 5I% of all Gaming Activities previously conducted by the Tribe on the Reservation are suspended or terminated for a period of at least three (3) months, the Tribe's obligations to make annual financial contributions pursuant to Sections 2 through 4 of this MOU shall be suspended in the same manner as authorized under the Compact until such time as the Gaming Activities are resumed. The period of obligations under this MOU shall be extended for the time of the suspension. For the purposes of this section, the term "Force Majeure" shall include, without limitation, the following circumstances that result in a suspension of 51%o of all Gaming Activities previously conducted by the Tribe on the Reservation: earthquake; flood; fire; other natural disasters; changes in law, regulation or govemmental policy; riots; war; or terrorism. Nothing in this section shall impact the Tribe's liability for financial contributions which became due and payable prior to the date such Gaming Activities were suspended or terminated. 'When a Force Majeure event occurs, the Tribe shall provide written notice within seventy-two (72) hours of the event that performance of its obligations is prevented or delayed, and within seventy-two (72) hours after Gaming Activities are resumed. 9. RENEGOTIATIONPROVISION 9.1 .1 RnNncouATIoN EvnNrs. The City or the Tribe may request that the other party renegotiate one or more of the provisions of this MOU if there is a change in law, facts, or other unforeseen circumstances that fundamentally changes the City's or Tribe's hnancial assumptions made in entering into this MOU ("Fundamental Changes Renegotiations"). Such Fundamental Changes shall be deemed to include, without limitation, a signif,rcant adverse impact on either the City or Tribe as follows: (i)the existence of a significant adverse impact of the Project on the City whose extent of impact was not specifically addressed in the EIS or was not anticipated by the City; (iÐ any change ending the prohibition on Class III gaming (as defined in IGRA) or the operation of Gaming Devices by non-Indians in California that substantially affects the Project's financial projections and actual revenues by at least 25o/o; and (iiÐ a substantial reduction in the scope of all Gaming Activities permitted on the Reservation, whether pursuant to a change in OAK #4821-1906-1267 v4 18 9.2 10. SEVERABILITY 10.1 federal, state or local constitutions, laws, rules or regulations, or amendment of the Compact. FuNt¡.vrn¡{TAL CHANGES RENEGoTIATIoN PRocnouRns. All requests to enter into Fundamental Changes Renegotiations shall be by written notice and shall include reference to the provisions of this MOU to be renegotiated. Upon receipt of such notice, the Parties shall attempt to renegotiate this MOU in good faith. The Parties shall confer promptly and determine a schedule for commencing negotiations within fifteen (15) days of the notice. Each Party is hereby authorized to designate the person responsible for conducting the negotiations, and shall execute any documents necessary to confirm such authorization. The purpose of the negotiations will be to attempt to renegotiate the provisions of this MOU in good faith so that the Parties retain substantially the same rights, levels of mitigation, and community benefits contemplated as of the date of this MOU. If, the Parties are unable to agree upon the dollar amounts necessary to maintain substantial mitigation of impacts and a comparable level of community investments within one hundred and eighty (180) days of commencing Fundamental Changes Renegotiations, the Parties may trigger the dispute resolution provisions contained in Section I 1. Notwithstanding any provision of California law to the contrary, if any provision of this MOU is held to be illegal, invalid, or unenforceable under present or future laws, such provision shall be fully severable, this MOU shall be construed and enforced as if such void, illegal, invalid, or unenforceable provision had never comprised a part of this MOU, and the remaining provisions of this MOU shall remain in full force and effect and shall not be affected by the void, illegal, invalid, or unenforceable provision or by its severance from this MOU. Similarly, notwithstanding any provision of California, Federal or Tribal law to the contrary, if any provision of this MOU requires the City, Tribe, or any other Public Entity to take any action which has not been taken in connection with the approval of this MOU or otherwise, or subjects this MOU to the referendum or initiative process under California law, this MOU shall be construed and enforced as if such provision had never comprised a part of this MOU, and the remaining provisions of this MOU shall remain in full force and effect and shall not be affected by the applicable provision or by its severance from this MOU. In the event that the entire MOU is declared void, illegal, invalid, unenforceable or unauthorized, the Parties shall enter into good faith negotiations to negotiate a new agreement that maintains the expectation of each Party in entering into this MOU. If any of the events referenced in this section occurs, the Parties shall endeavor in good faith negotiations to replace the applicable provision or provisions with a substitute provision, the economic and other effects of which comes as close as possible to that of the provision which has been severed. Such negotiations shall be conducted pursuant to the provisions of section 9(b) of this MOU. OAK #4821-1906-1267 v4 t9 1 1. DISPUTE RESOLUTION PROVISIONS 1 1.1 Drspurn RBsor,urroN. In an effort to foster good government-to-government relationships and to assure that the Tribe is not unreasonably prevented from engaging in gaming and other commercial activities on the Reservation, and the City is able to insure that the off-reservation impacts of the Project are fully mitigated, the Parties agree to the dispute resolution procedures set forth in this section. Il.2 Mnnr AND CoNFER. The Parties shall make their best efforts to resolve claims arising under this MOU by good faith negotiations whenever possible. Any such disputes between the Parties shall first be subjected to a process of meeting and conferring in good faith in order to foster a spirit of cooperation in the implementation of the terms of this MOU as follows: ll.2.l A Party shall give the other Party, as soon as possible after the event giving rise to the dispute, written notice setting forth, with specificity, the claims of breach of this MOU. 11.2.2 The Parties shall meet and confer in a good faith attemptto resolve such dispute through negotiation not later than 10 days after the receipt of notice, unless the Parties agree in writing to an extension of time. 11.3 Mnrr¡.uoN oR OrHER DISpurE RnsolurroN. If such dispute is not resolved to the satisfaction of the Parties, the Parties may, by mutual agreement, pursue mediation or any other method of dispute resolution; provided, however, that no Party is under an obligation to agree to such mediation or other method of dispute resolution. lL4 BINtrNc ARtIrRtuoN. If such dispute is not resolved to the satisfaction of the Parties within thirty (30) calendar days after either the first meeting or after any other dispute resolution under section 11.3, or such other extended period as the Parties may agree in writing, then the Parties may seek to have the dispute resolved by binding arbitration in accordance with the following procedures: ll.4.I Upon the request of a Party in writing, the dispute shall be submitted to binding arbitration in accordance with this section. II.4.2 The disputes to be submitted to arbitration shall be limited to claims arising under this MOU, and which were subject to the meet and confer in section 11(b) of this MOU. II.4.3 In the event there is any dispute as to whether a matter is subject to the arbitration provisions of this MOU, or any dispute concerning the scope of the matter or matters to be arbitrated, the disagreement as to whether the dispute is subject to the arbitration provisions of this MOU or the scope of such arbitration shall be submitted to the arbitrator referenced in subsection (iv) of this section. OAK #4821-1906-1267 v4 20 1114.4 The arbitration shall be conducted before a single arbitrator in accordance with the JAMS Streamlined Arbitration Rules (or such other streamlined arbitration rules as the Parties may agree), as modified by the provisions of this MOU. 1114.5 The arbitrator shall be selected by the Parties. If at such time the Parties are unable to agree upon the selection of a single arbitrator, then each Party shall name one arbitrator and the two arbitrators thus selected shall select a third arbitrator who shall be a retired California Superior Couft or United States District Court judge; provided, however, if either Party fails to select an arbitrator within fourteen (14) days of delivery of the request for arbitration, then the arbitrator selected by the other Party shall conduct the arbitration. IL4.6 The arbitration shall take place in Sonoma County or another location mutually agreed upon by the Parties. IL4.7 The provisions of Section 1283.05 of the California Code of Civil Procedure shall apply; provided that no discovery authorized by that section may be conducted without leave of the arbitrator. 11.4.8 Each side shall bear its own costs, attorneys' fees, and one-half the costs and expenses of the arbitrator. 11.4.9 The decision of the arbitrator should be made within thirty (30) days of the arbitration. The decision shall be in writing and shall give reasons for the decision. 11.5 Davr¡.cBs. The Parties agree that any monetary damages awarded or arising under this MOU shall be exclusively limited to actual direct damages incurred based on obligations contained in this MOU that have been demonstrated with substantial certainty and which do not, in any event, exceed the total amount of the annual financial contributions which the Tribe is required to make to the City under the MOU. In no instance shall the Parties to this MOU be entitled to special, incidental, indirect, consequential or punitive damages, lost profits or attorney's fees. The Parties agree not to assert any claim for damages, injunctive, or other relief which is not consistent with the provisions of this MOU. II.6 CoNrrnvr¡.TIoN oF Awnnos. Any Party to an arbitration in which an award has been made pursuant to this section may petition the Federal District Court for the Northern District of California or, if such Court declines jurisdiction, the State Superior Court for Sonoma County or any other court of competent jurisdiction to confirm the award, including any appellate proceedings. The Parties expressly consent to the jurisdiction of such Courts for the purpose of confirmation of such an award. An award shall be confirmed, provided that: 1 1 .6.1 The award is limited to the purposes of arbitration stated in this section. OAK #4821-1906-1267 v4 21 1I.6.2 No person or entity other than the Parties is a party to the action, unless failure to join a third party would deprive the court of jurisdiction; provided, however, that nothing herein shall be construed to constitute a waiver of the sovereign immunity of the Parties in respect to any such third party. 1 1.6.3 If an award is confirmed, judgment shall be entered in conformity with the award. The judgment so entered has the same force and effect as, and is subject to all the provisions of law relating to, a judgment in a civil action, and may be enforced like any other judgment of the court in which it is entered. ll.7 INrnnvnNTIoN. Nothing in this MOU shall be construed to constitute a waiver of the sovereign immunity of the Tribe or the City with respect to intervention by any additional party not deemed an indispensable party to the proceeding. 11.8 CoNnrtnNTIALITy. Unless otherwise agreed by the Parties, any dispute resolution meetings or communications, or mediation, shall be in the context of a settlement discussion to potential litigation and remain confidential to the extent not prohibited by applicable law. 12. \ilAIVER OF SOVEREIGN IMMUNITY t2.t Pursuant to General Council Resolution îß-4, and subject to the provisions of this section, the Tribe expressly and irrevocably waives sovereign immunity (and any defenses based thereon) in favor of the City, but not as to any other person or entity, as to any dispute which specifically arises under this MOU and not as to any other action, matters or disputes. The Tribe does not waive its sovereign immunity with respect to (i) actions by third parties, except for parties acting on behalf of, under authorization from, or pursuant to a contract with, the Tribe or City; or (ii) disputes between the Tribe and the City which do not specif,rcally arise under this MOU. The Tribe fuither agrees that exhaustion of administrative remedies, including before any tribal courl, shall not be required prior to proceeding to arbitration or court action under section 1 1. 13. REPRESENTATIONSAND\ilARRANTIES Each Party represents, warrants and covenants to the other Party as follows: 13.1 Aurnonrrv. Such Party has the legal power and authority to execute and deliver this MOU and to perform its obligations under this MOU. 13.2 Dun AuruoRIZATIoN. The approval, execution, and delivery of this MOU, and waiver of sovereign immunity, and the performance by such Party of its obligations under this MOU, have been authorized by all requisite actions of such Party. OAK #4821-1906-1267 v4 22 13.3 DuB ExrcurloN lNo Dnlrvrnv. The persons executing this MOU on behalf of such Parly are duly authorized to execute and deliver this MOU on behalf of such Par1y. 13.4 BNnoncnnBrlrry. This MOU constitutes the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms, and, once executed and delivered, cannot be invalidated pursuant to any subsequent action of the City Council of the City or the Tribal Council or General Council of the Tribe, as applicable. 13.5 No CoNrltcr. The approval, execution, delivery and performance of this MOU does not conflict with any other agreement to which such Party is a party and does not violate or require any action which has not been taken under any law, statute, rule, regulation, ordinance, general plan, tribal law, specific plan or court order or decree applicable to such Party. 13.6 W¡¡vnns. A waiver of any breach of any provision of this MOU shall not constitute or operate as a waiver of any other breach of such provision or of any other provisions, nor shall any failure to enforce any provision operate as a waiver ofsuch provision or ofany other provisions. 14. GENERAL PROVISIONS 14.l No SunurssroN To JURISDICTIoN. The Parties acknowledge and agree that this MOU, except as otherwise specif,red, is not intended to constitute, and shall not be construed as constituting, a submission by the Tribe to the jurisdiction of (i) the City or any or any of its subdivisions, departments or courts, (ii) any of its or their respective officials, employees, inspectors or contractors, or (iii) any of its or their respective laws, rules, regulations, ordinances, general plans or specific plans. 14.2 TnlRr Prnry Marrpns. This MOU is not intended to, and shall not be construed to, create any right on the part of any third party to bring any action or otherwise enforce any of its terms. 14.3 INoBnrnrnrcATIoN. The Tribe agrees to indemnify, defend and hold harmless the City (with counsel reasonably acceptable to the City) from and against any and all claims, losses, proceedings, damages, causes of action, liability, costs and expenses (including its reasonable attorneys' fees) arising from any action or proceeding filed against the City which challenges the City's approval, execution or delivery of this MOU. I4.4 Norrco. All notices required by this MOU shall be deemed to have been given when made in writing and delivered or mailed to the respective Parties and their representatives at their respective addresses as set forth below or such other addresses as they may provide to the other Party from time to time: OAK #482 I -1906-126"1 v4 23 For the City: City of Rohnert Park 130 Avram Avenue Rohnert Park, California 94928 Attn: City Manager Telephone: (107) 588-2226 Facsimile: (107) 792-187 6 V/ith copies to Burke, Williams & Sorensen, LLP 1901 Hanison Street, Suite 900 Oakland, CA 94612 Attn: Michelle Marchetta Kenyon Telephone: (510) 27 3-87 80 Facsimile: (510) 839-9104 For the Tribe: Federated Indians of Graton Rancheria 6400 Redwood Drive, Suite 300 Rohnert Park, CA 94928 Attn: Chairperson Telephone: (7 0l) 566-2288 Fax: (707) 566-2291 With copies to Maier Pfeffer Kim & Geary, LLP 1440 Broadway, Suite 812 Oakland, CA 94612 Attn: John Maier, Esq. Telephone: (5 1 0) 835-3020 Fax: (510) 835-3040 14.5 GovnnNrNG LAw. This MOU shall be governed by, and construed in accordance with, the laws of the State of California. 14.6 CoNsrnucrroN oF AcnnnvrnNr. This MOU, including all recitals, together with all Exhibits, constitutes the entire agreement between the Parties and supersedes all prior negotiations, representations, drafts regarding this MOU, whether written or oral. In the event of a dispute between the Parties as to the language of this MOU or any amendment to this MOU or the construction or meaning of any term contained in this MOU or any amendment to this MOU, this MOU or any amendment to this MOU shall be deemed to have been drafted by OAK #4821-1906-1267 v4 24 the Parties in equal parts so that no presumptions or inferences concerning its terms or interpretation may be construed against, or in favor of, either Party based on the preparation or negotiation of this MOU or any amendment to this MOU. The headings contained in this MOU are for convenience of reference only and shall not effect this MOU's construction or interpretation. 14.7 BrNrtNc AcRnBvrBNr. This MOU is intended to be, and shall be construed to be, binding upon the Parties and all successors and successors-in-interest of each Party, including all ofhcers, agents and employees, and, in the case of the City, future City Councils, and, in the case of the Tribe, future Tribal Councils or General Councils. 14.8 ENVIRONMENTALREVIEW 14.8.1 Pursuant to the CEQA Guidelines (Cal. Code Regs., titl. 14, Section 15378, subd. (b)(a)), this MOU does not constitute a "project" for CEQA purposes because it involves the creation of a goveffrment funding mechanism or other government fiscal activities, which do not involve any commitment to any specific project which may result in a potentially significant physical impact on the environment. This MOU requires the Tribe to make mitigation payments for identified mitigation measures and programs; however, the City retains discretion to elect not to implement any or all of the specif,rc mitigation measures and programs identified in this MOU. Further this MOU does not obligate the City to undertake a specified mitigation program or construction project nor does it set a time for development. 14.8.2 The Parties acknowledge and agree that this MOU is not intended to be and does not constitute a development agreement for the purposes of Government Code section 65865. Nor does this MOU commit the City to implement any public improvement, or to take any action that may result in physical changes in the environment. 14.8.3 The Parties acknowledge that the EIS andlor Record of Decision evaluated the impacts of the Project and provided for the mitigation thereof. 14.8.4 The Parties acknowledge and agree that: (i) the Tribe is not a public agency subject to CEQA; (ii) the Project is not subject to CEQA or to City environmental review, design, land use or land development ordinances, plans, manuals or standards; (iii) the City does not have legal authority to deliberate o[, approve, disapprove, or otherwise exercise judgment regarding the Project; and (iv) the City is not deliberating on, approving, disapproving or otherwise exercising judgment regarding the Project by entering this MOU. 14.8.5 Government Code $ 12012.56(bX1XC) is a statutory CEQA exemption adopted with specific reference to this Project and the mitigation of its off- OAK #4821-1906-1267 v4 25 14.IO ITHE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK] site impacts. That Section states that in deference to tribal sovereignty, the execution of an intergovernmental agreement between a tribe and a county or city government negotiated pursuant to the express authority of, or as expressly referenced in, the Compact shall not be deemed a project for purposes of CEQA. This MOU is an intergovemmental agreement, made pursuant to Sections 4.4 and 1 1.8.7 of the Compact, between the Tribe and the City negotiated pursuant to the Compact and, therefore, execution of this MOU is not subject to CEQA. Subsections (aXl)-(a) and (c) of Section I1.8.7 of the Compact require the City and the Tribe to enter into enforceable intergovernmental agreements to timely mitigate, through compensation or other means, any significant effect of the Project on the environment, which were attributable in whole or in part to the Project. By expressly declaring intergovernmental agreements made under the Compact to not be a "project" for CEQA purposes, and by expressly acknowledging the need for an intergovernmental agreement to mitigate impacts in the Compact, the Legislature expressly exempted mitigation agreements such as this MOU from compliance with CEQA. 14.8.6 To the extent that the City is required to comply with CEQA with respect to any improvements, programs or activities identified in or related to this MOU, the City will comply with CEQA prior to approving or implementing such improvements, programs or activities. This MOU does not restrict the City's discretion to evaluate the impacts of such improvement, programs or activities, identify and adopt mitigation for such impacts, consider and approve alternatives designed to lessen such impacts, or deny approvals necessary for such improvement, programs or activities. 14.9 AmnNowrnNrs. This MOU may be modified or amended only by mutual and written agreement of the Parties. Rpvrnw By rHE DBp¡,ntunNT oF INrBRron. The Tribe shall submit this MOU to the United States Department of the Interior for either: (a) approval pursuant to 25 U.S.C. $ 81; or (b) a written response that this MOU does not require approval under 25 U.S.C. $ 81. The Tribe shall undertake reasonable efforts, in consultation with the City, to secure approval or written response. The City, at its sole discretion, has the right to withdraw its support for the MOU if it is not submitted to the Department of the Interior pursuant to this section within ten (10) days following the Effective Date. If the Department of Interior determines that portions of this MOU violate 25 U.S.C. $ 81 or are otherwise invalid, the severability provisions set forth in section 10 of this MOU shall govern. OAK #4821-1906-1267 v4 26 IN WITNESS WHEREOF. the Parties have executed this MOU as of the date first set forth above. CITY OF ROHNERT PARK Date 2013 APPROVED BY CITY ATTORNEY By: Name: Czohr^,,\ f,- Gnr.zo,\¿z- Its By: Marchetta Kenyon, Esq. Burke, V/illiams & Sorensen, LLP FEDERATED INDIANS OF GRATON RANCHERIA By: , Esq Pfeffer Kim & Geary, LLP _,2013 {llern"!r Date: +/n- _,2013 Greg Sarris Chairperson APPROVED BY LEGAL COUNSEL FOR THE TRIBE Date 20t3 By: J OAK #4821-1906-1267 v4 27 Ex h i b i t A Du e Da t e s fo r Ro h n e r t P a r k / G r a t o n Ra n c h e r i a M O U Pa y m e n t s Du e fr o m Tr i b e to Ci t y Other Payments 4.2.2 Tribe Charity or Organiza tion X X X X X X X X X X X X X X4.2.L Rohnert Park Foundation X X X X X X X X X X X X X X X X X X X X X X X X X X4.L Sc h o o l X X X X X X X X X X X X X X X X X X X X X X X X X X 4. 3 Co m m u n i t y (N e i g h b o r - ho o d & Ho u s i n g ) X X X X X X X X X X X X X X X X X X X X X X X X X X Gu a r a n t e e d Pa y m e n t s 3. 5 Pu b l i c Se r v i c e s X X X X X X X X X X X X X X X X X X X X X X X X X X 3. 4 Su p p l e - me n t a l X X X X X X X X X X X X X X X X X X X X X X X X X X 3. 3 Wa t e r - wa y X X X X X X X X X X X X X X X X X X X X X X X X X X 3. 2 Pr o b l e m Ga m b l i n g X X X X X X X X X X X X X X X X X X X X X X X X X X 3. 1 La w En f o r c e - me n t X X X X X X X X X X X X X X X X X X X X X X X X X X 2. 5 Mo b i l e Ho m e Pa r k 3 2. 4 Tr a f f i c lm p a c t s 2 2. 3 . 3 Ci t y Ve h i c l e s X X X X 2. 3 . 2 La d d e r Fi r e Tr u c k X 2. 3 . L Pu b l i c Sa f e t y Bu i l d i n g X X X X X X X X MO U S e c t i o n Qu a r t e r a 3r d Qt r 4t h Qt r 5t h Qt r 6t h Qt r 7t h Qt r 8t h Qt r 9t h Qt r 10 t h Qt r 1] - t h Qt r 12 t h Qt r 1- 3 t h Qt r 14 t h Qt r 15 t h Qt r 1- 6 t h Qt r 1- 7 t h Qt r 18 t h Qt r 19 t h Qt r 20 t h Qt r 21 s t Qt r 22 n d Qt r 23 r d Qt r 24 t h Qt r 25 t h Qt r 26 t h Qt r 27 t h Qt r 28 t h Qt r Du e Da t e l t- J u l 2 } t 4 7- O c t - 2 1 L 4 1- J a n - 2 0 1 5 1- A p r - 2 0 1 5 1- J u l - 2 0 1 5 1- O c t - 2 0 1 - 5 lJ a n - 2 0 1 6 t- A p r - 2 0 1 , 6 lJ u l - 2 0 1 6 1- O c t - 2 0 1 6 t- J a n - 2 0 I 7 L- A p r - 2 O I 7 1À u l 2 0 1 7 t- O c I - 2 0 ] - 7 1- J a n - 2 0 1 8 1- A p r - 2 0 1 8 lJ u l - 2 0 1 8 1- O c t - 2 0 1 8 L- J a n - 2 0 1 9 1- A p r - 2 0 1 9 lJ u l - 2 0 1 9 1- O c t - 2 0 1 9 1- J a n - 2 0 2 0 t- A p r - 2 0 2 0 t) u l 2 O 2 O t- O c l - 2 0 2 0 Page 1 Pa y m e n t s Du e fr o m Tr ¡ b e to C¡ t y Other Payments 4.2.2 Tribe Charity or Organiza tion X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X4.2.r Rohnert Park Foundation X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X 4. L Sc h o o l X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X 4. 3 Co m m u n i t y (N e i g h b o r - ho o d & Ho u s i n g ) X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X Gu a r a n t e e d Pa y m e n t s 3. 5 Pu b l i c Se r v i c e s X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X 3. 4 Su p p l e - me n t a l X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X 3. 3 Wa t e r - wa y X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X 3. 2 Pr o b l e m Ga m b l i n g X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X 3. r - La w En f o r c e - me n t X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X 2. 5 Mo b i l e Ho m e Pa rk 3 2. 4 Tr a f f i c lm p a c t s 2 2. 3 . 3 Ci t y Ve h i c l e s 2. 3 . 2 La d d e r Fi r e Tr u c k 2. 3 . 7 Pu b l i c Sa f e t y Bu i l d i n g MO U Se c t i o n Qu a rt e ra 29 t h Qt r 30 t h Qt r 31 s t Qt r 32 n d Qt r 33 r d Qt r 34 t h Qt r 35 t h Qt r 36 t h Qt r 37 t h Qt r 38 t h Qt r 39 t h Qt r 40 t h Qt r 4] - s t Qt r 42 n d Qt r 43 r d Qt r 44 t h Qt r 45 t h Qt r 46 t h Qt r 47 t h Qt r 48 t h Qt r 49 t h Qt r 50 t h Qt r 51 s t Qt r 52 n d Qt r 53 r d Qt r 54 t h Qt r 55 t h Qt r 56 t h Qt r 57 t h Qt r 58 t h Qt r Du e D a t e l ]' - J a n - 2 0 2 I 7- A p r - 2 0 2 I 1. - J u l 2 o 2 7 !- O c r - 2 0 2 L t- J a n - 2 0 2 2 L- A p r - 2 0 2 2 t- J u l - 2 0 2 2 L- 0 c l - 2 0 2 2 t) a n - 2 0 2 3 I- A p r - 2 0 2 3 I- J u l 2 O 2 3 L- O c t - 2 O 2 3 t- J a n - 2 0 2 4 t- A p r - 2 0 2 4 t- J u l 2 O 2 4 1- O c T - 2 0 2 4 t- J a n - 2 O 2 5 L- A p r - 2 Q 2 5 t- J u l - 2 0 2 5 1- O c t - 2 0 2 5 L- J a n - 2 0 2 6 1' - A p r - 2 0 2 6 tJ u l 2 0 2 6 t- O c T . - 2 0 2 6 t- J a n - 2 Q 2 7 t- A p r - 2 0 2 7 tl u l 2 O 2 7 L- 0 c t - 2 O 2 7 L- J a n - 2 0 2 8 L- A p r - 2 0 2 8 Page 2 Pa y m e n t s Du e fr o m Tr i b e to Ci t y No t e s : 1 A s s u m e d o p e n i n g d a t e so m e t i m e in Oc t o b e r , No v e m b e r or De c e m b e r of 2 0 1 3 . Du e da t e s ar e va l i d fo r an y o p e n i n g da t e in th i s pe r i o d 2 MO U pr o v i d e s th a t pa y m e n t is ma d e af t e r pa r t i e s ag r e e o n n e e d . 3 MO U pr o v i d e s th a t pa y m e n t is ma d e up o n re q u e s t af t e r t h e pa r t i e s ha v e a g r e e d on th e pr o j e c t . Other Payments 4.2.2 Tribe Charity or Organiza tion X X X X X X X X X X X X X X X X X X X X X X X X4.2.1 Rohnert Park Foundation X X X X X X X X X X X X X X X X X X X X X X X X4.L Sc h o o l X X X X X X X X X X X X X X X X X X X X X X X X 4. 3 Co m m u n i t y (N e i g h b o r - ho o d & Ho u s i n g ) X X X X X X X X X X X X X X X X X X X X X X X X Gu a r a n t e e d Pa y m e n t s 3. 5 Pu b l i c Se r v i c e s X X X X X X X X X X X X X X X X X X X X X X X X 3. 4 Su p p l e - me n t a l X X X X X X X X X X X X X X X X X X X X X X X X 3. 3 Wa t e r - wa y X X X X X X X X X X X X X X X X X X X X X X X X 3. 2 Pr o b l e m Ga m b l i n g X X X X X X X X X X X X X X X X X X X X X X X X 3. L La w En f o r c e - me n t X X X X X X X X X X X X X X X X X X X X X X X X 2. 5 Mo b i l e Ho m e Pa r k 3 2. 4 Tr a f f i c lm p a c t s 2 2. 3 . 3 Ci t y Ve h i c l e s 2. 3 . 2 La d d e r Fi r e Tr u c k 2. 3 . r Pu b l i c Sa f e t y Bu i l d i n g MO U Se c t i o n Qu a r t e r a 59 t h Qt r 60 t h Qt r 61 s t Qt r 62 n d Qt r 63 r d Qt r 64 t h Qt r 65 t h Qt r 66 t h Qt r 67 t h Qt r 68 t h Qt r 69 t h Qt r 70 t h Qt r 71 s t Qt r 72 n d Qt r 73 r d Qt r 74 t h Qt r 75 t h Qt r 76 t h Qt r 77 t h Qt r 78 t h Qt r 79 t h Qt r 80 t h Qt r 81 s t Qt r 82 n d Qt r Du e Da t e l L- J u 1 2 0 2 8 1- O c t - 2 0 2 8 ]' - J a n - 2 0 2 9 7- A p r - 2 0 2 9 7. J u 1 2 O 2 9 t- O c T - 2 O 2 9 lJ a n - 2 0 3 0 1- A p r - 2 0 3 0 1- J u l - 2 0 3 0 1- O c t - 2 0 3 0 ll a n - 2 0 3 1 I- A p r - 2 0 3 I lJ u l - 2 0 3 1 1- O c t - 2 0 3 1 L- J a n - 2 O 3 2 L- A p r - 2 0 3 2 L- J u l 2 O 3 2 I- O c T - 2 0 3 2 lJ a n - 2 0 3 3 1- A p r - 2 0 3 3 1- J u l - 2 0 3 3 1- O c t - 2 0 3 3 1- J a n - 2 0 3 4 1- A p r - 2 0 3 4 Page 3 April Prior Yea r 242.83 Exhibit B - SAMPLE Rohnert Park/Graton Rancheria MOU Annual Payment Schedule cPt April Current Adjustment Year3 Factor 250.1,7 1.0300 Fiscal Year: July 1 to June 30 CPI lndex Data:1'2 TotalAmount 5 2,636,994 5 2,636,994 5 2,636,994 S Notes: L CPl Adjustment is scheduled for implementation each July 1. Data from April to April will be used. 2 CPI Data is All Urban Consumers San Francisco-Oakland-San Jose Area, series lD CUURA422SA0. 3 CPI lndex Value of 250.11 is used for illustration. Actual value will be input each year when data is available. 4 Non-recurring payments are not subject to CPI Adjustment. 5 All Recurring Payments and Deductions are subject to CPI Adjustment each year. 6 Quarter is lan-Mar, AprJune, July-Sept, Oct-Dec numbered sequentially beginning with the first full quarter after gaming commences. Summary: State Gaming Agency shall deliver to Rohnert Park before t1ul20t4 a wire transfer in the amount of: S State Gaming Agency shall deliver to Rohnert Park before t-Ocr.-2014 a wire transfer in the amount of: 5 State Gaming Agency shall deliver to Rohnert Park before lJan-20L5 a wire transfer in the amount of: 5 State Gaming Agency shall deliver to Rohnert Park before 1-Apr-2015 a wire transfer in the amount of: S City of Rohnert Park Wire Transfer lnstructions:Exchange Bank, Santa Rosa, CA ABA 121101985 AlCO087O44O42 FBO City of Rohnert Park 2,636,994 2,636,994 2,636,994 2,636,994 2,636,994 MOU Section Due Date 7lul2114 t-Oct-2074 1-Jan-2015 1-Apr-2015 Qua rte rb 3rd Qtr 4th Qtr 5th Qtr 6th Qtr P c.) E tıo- ! c) C)PctI' to =(9 obo c'= f(J q) É. oz 2.3.1 Public Safetv Building 2.3.2 Ladder Fire Truck 2.3.3 Citv Vehicles 2.4 Traffic lmpacts 2.5 Mobile Home Park P o E (! o_ Þ.0 .C J(J CJ É. 3.1 Law Enforcement S rzs,zso 5 128,7s0 5 t28,7so S rzs,zso 3.2 Problem Gambling 5 sz,rsa 5 ¡z,rsa S 32,188 S ¡z,rse 3.3 Waterway 5 P,eß 5 1"2,87s 5 12,87s 5 n,eÆ 3.4 Supplemental S 1,287,s00 S 1,287,s00 S 1,287,500 s 1,287,s00 3.5 Public Services s 610,018 S oro,ors S oro,ora 5 oro,ors P arıECPqoà ô_ 4.1 School 5 257,soo S 2s7,soo S zsz,soo S 2s7,soo 4.2.7 Rohnert Park Foundation S zsz,soo S zsz,soo 5 2s7,s00 S 257,500 4.2.2 Tribe Charity 4.3 Neighborhood & Housing s 2s7,s00 s 2s7,s00 s 2s7,soo S zsz,soo Ded uctions 5.4 Advance Payments 5 (206,836)S (206,836)s (206,836)s (206,836)   ITEM NO. 6C4 OAK #4815‐1642‐4776 v1 1   Meeting Date: May 23, 2017 Department: Administration Submitted By: Darrin Jenkins, City Manager Prepared By: Leonardo Tacata, Senior Analyst Agenda Title: Authorizing the City Manager to Execute a Memorandum of Understanding with Cotati-Rohnert Park Unified School District to Distribute Community Investment Recurring Contributions from the Graton Mitigation Fund RECOMMENDED ACTION: Consider for approval and authorize by resolution the execution of a memorandum of understanding with the Cotati-Rohnert Park Unified School District to distribute recurring donations from the Graton Mitigation Fund. BACKGROUND: On April 17, 2013, the City approved the First Amended and Restated Memorandum of Understanding by and between the City of Rohnert Park and the Federated Indians of Graton Rancheria (MOU) with the Federated Indians of Graton Rancheria (“Tribe”) to facilitate the mitigation of impacts resulting from the Graton Resort and Casino. As an intergovernmental agreement, the MOU provides that the Tribe, through the Graton Mitigation Fund, designates contributions to the City for certain purposes. One of these purposes is the “Community Investment Recurring Contribution,” a part of which is a quarterly “School Contribution” recurring charitable contribution to the Cotati-Rohnert Park Unified School District (“CRPUSD”). It is important to note that a quarterly School Contribution is only paid if there are sufficient funds remaining in the Graton Mitigation Fund after guaranteed obligations to the City and County of Sonoma have been met. Although not guaranteed, the District is expected to receive approximately $270,000 per quarter, through the end of the term of the MOU, which is December 31, 2033, or the date the Tribal-State Compact or any extension expires, whichever is later. The amount of the contribution will be adjusted by the Consumer Price Index on an annual basis. SUMMARY: The Tribe will not make the Community Investment Recurring Contribution payments directly to the CRPUSD. Pursuant to the “Tribal-State Compact between the State of California and the Federated Indians of Graton Rancheria” executed on or about March 27, 2012, which established the Graton Mitigation Fund, the Tribe makes payments to the State, which administers the Graton Mitigation Fund. The State makes payments to the City, which has established an account whereby Community Investment/ School Recurring Contribution revenue will be deposited and subsequently distributed to CRPUSD. The City has been informed that it may receive its first quarterly Community Investment Contribution in the fourth fiscal quarter of FY 2016-17 (June). The MOU determines that the use of the School Contribution funds will be governed by an ad hoc committee which will consist of two members designated by CRPUSD, two members Mission Statement “We Care for Our Residents by Working Together to Build a Better Community for Today and Tomorrow.” CITY OF ROHNERT PARK CITY COUNCIL AGENDA REPORT   ITEM NO. 6C4 OAK #4815‐1642‐4776 v1 2   designated by the Tribe, and one member chosen by the other four members. CRPUSD will administer the ad hoc committee meetings and the accounting of all School Contribution funds received. City fulfills its obligation to the MOU by distributing the designated quarterly School Contributions to CRPUSD. STRATEGIC PLAN ALIGNMENT: D: Continue to develop a vibrant community. OPTIONS CONSIDERED: (1) Option 1: Adopt the resolution to authorize the City Manager to execute the Memorandum of Understanding with Cotati-Rohnert Park Unified School District to distribute recurring School Contribution contributions from the Graton Mitigation Fund to CRPUSD. This is the recommended option. (2) Option 2: Transfer the recurring School Contribution funds to CRPUSD without an agreement. This would be a more informal method of administering the contribution designated for CRPUSD, and would assume that each party understands its roles and responsibilities in the maintenance and use of these funds. FISCAL IMPACT/FUNDING SOURCE: The net fiscal impact of the proposed Memorandum of Understanding is zero ($0) dollars. The full amount of every contribution made to the CRPUSD is offset by the same amount provided by the Graton Mitigation Fund contribution to the City. The funding source is the Graton Mitigation Fund which is administered by the State of California. Department Head Approval Date: N/A Finance Director Approval Date: 5/17/17 City Attorney Approval Date: 5/12/17 City Manager Approval Date: 5/15/17 Attachments (list in packet assembly order): 1. Resolution Authorizing the City Manager to Execute a Memorandum of Understanding with the Cotati-Rohnert Park Unified School District. 2. Exhibit A: Memorandum of Understanding with the Cotati-Rohnert Park Unified School District to Distribute Community Investment Funds Associated with the Graton Casino. 3. Attachment 1: First Amended and Restated Memorandum of Understanding by and between the City of Rohnert Park and the Federated Indians of Graton Rancheria.   RESOLUTION NO. 2017-065 A RESOLUTION OF THE CITY OF ROHNERT PARK AUTHORIZING THE CITY MANAGER TO EXECUTE A MEMORANDUM OF UNDERSTANDING WITH THE COTATI-ROHNERT PARK UNIFIED SCHOOL DISTRICT TO DISTRIBUTE COMMUNITY INVESTMENT RECURRING CONTRIBUTIONS FROM THE GRATON MITIGATION FUND WHEREAS, on April 17, 2013, the City of Rohnert Park (“City”) approved the “First Amended and Restated Memorandum of Understanding by and between the City of Rohnert Park and the Federated Indians of Graton Rancheria” (“MOU”) with the Tribe which provides, among other things, that the Federated Indians of Graton Rancheria (“Tribe”)shall make a quarterly charitable Community Investment Recurring Contribution (“Recurring Contributions”) from the Graton Mitigation Fund to the Cotati-Rohnert Park Unified School District (“District”) to make investments in and contributions to the City of Rohnert Park; and WHEREAS, on or about March 27, 2012, the Tribe and the State of California (“State”) entered into that certain “Tribal-State Compact between the State of California and the Federated Indians of Graton Rancheria”, which is incorporated by reference herein, whereby the Tribe agreed to make payments to the State which would comprise the Graton Mitigation Fund, and whereby the State agreed to pay to the City those funds owed to District under the MOU, including the Recurring Contributions; and WHEREAS, the Tribe owns and operates the Graton Resort and Casino in Rohnert Park, California; and WHEREAS, the Cotati-Rohnert Park Unified School District was organized to serve the Sonoma County region which includes the City of Rohnert Park; and WHEREAS, the City expects to receive the first Recurring Contribution in the fourth quarter of fiscal year 2016-17; and WHEREAS, the City and the District mutually desire to transfer the Recurring Contributions from the City to the District in compliance with the MOU; and WHEREAS, the City desires to enter into a memorandum of understanding with the District to distribute the Recurring School Contributions to the District. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Rohnert Park as follows: 1. The foregoing recitals are true and correct. 2. The City Manager is authorized and instructed to execute the “Memorandum of Understanding Between the City of Rohnert Park and the Cotati-Rohnert Park   Unified School District to Distribute Community Investment Funds Associated With The Graton Casino” (“Distribution Agreement”) in the form attached hereto as Exhibit A and incorporated by reference herein. 3. The City Manager is authorized to take all actions necessary to carry out the purposes of the Distribution Agreement. 4. The Director of Finance is authorized to take all actions necessary, including budget appropriations, to carry out the purposes of the Acceptance Agreement. DULY AND REGULARLY ADOPTED this 23rd day of May, 2017. CITY OF ROHNERT PARK ____________________________________ Jake Mackenzie, Mayor ATTEST: _____________________________ JoAnne M. Buergler, City Clerk AHANOTU: _________ BELFORTE: _________ CALLINAN: _________ STAFFORD: _________ MACKENZIE: _________ AYES: ( ) NOES: ( ) ABSENT: ( ) ABSTAIN: ( )   Exhibit A MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF ROHNERT PARK AND THE COTATI-ROHNERT PARK UNIFIED SCHOOL DISTRICT TO DISTRIBUTE COMMUNITY INVESTMENT FUNDS ASSOCIATED WITH THE GRATON CASINO        MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF ROHNERT PARK AND THE COTATI-ROHNERT PARK UNIFIED SCHOOL DISTRICT TO DISTRIBUTE COMMUNITY INVESTMENT FUNDS ASSOCIATED WITH THE GRATON CASINO This Memorandum of Understanding (“Agreement”) is entered into this ______day of _______, 2017 by and between the City of Rohnert Park (“City”), a California municipal corporation and the Cotati-Rohnert Park Unified School District (“District”), a California public school district. WHEREAS, the City of Rohnert Park and the Cotati-Rohnert Park Unified School District have a mutual interest in investing in schools to serve the citizens of the City and the students who attend schools of the District; and, WHEREAS, the Federated Indians of the Graton Rancheria (“Tribe”) are the owners and operators of the Graton Resort and Casino (“Casino”); and WHEREAS, on April 17, 2013, City and the Tribe entered into that certain “First Amended and Restated Memorandum of Understanding by and between the City of Rohnert Park and the Federated Indians of Graton Rancheria,” a true and correct copy of which is attached hereto as Attachment 1 and incorporated by reference herein, (“MOU”) to mitigate, among other things, the impacts of the Casino on the Rohnert Park schools; and, WHEREAS, MOU Section 4.1 specifies a “School Contribution” as one of the Community Investment Recurring Contributions to be paid from the Graton Mitigation Fund, subject to certain terms and conditions stated in the MOU (“Recurring Contributions”); and, WHEREAS, on or about March 27, 2012, the Tribe and the State of California (“State”) entered into that certain “Tribal-State Compact between the State of California and the Federated Indians of Graton Rancheria,” which is incorporated by reference herein, whereby the Tribe agreed to make payments to the State that would comprise the Graton Mitigation Fund, and whereby the State agreed to pay to City certain funds from the Graton Mitigation Fund, including the Recurring Contributions owed to District under the MOU; and WHEREAS, City and District mutually desire to transfer the Recurring Contributions from City to District in compliance with the MOU and all applicable policies and procedures. For valuable consideration, the receipt of which is hereby acknowledged, the Parties to this Agreement agree as follows: 1. Distribution of Recurring Contributions. Within thirty (30) days of City’s receipt of a Recurring Contributions payment from the State pursuant to Section 4.1 of the MOU, City shall make a School Contribution in the amount equivalent to that Recurring Contribution payment to District (“School Contribution”). District agrees to accept each School Contribution received from City. If City does not receive a Recurring Contribution from the State for a given quarter for the purpose of funding contributions described in Section 4.1 of the MOU, City shall have no obligation to make any School Contribution to District for that quarter.   2. Administration of School Contributions. Pursuant to MOU Section 4.1, the use and distribution of all School Contribution funds shall be governed by an ad hoc committee which shall meet annually and shall consist of two (2) members designated by the District, two (2) members of the Tribe, and one (1) member chosen by the other four (4) members. District shall coordinate the activities of the ad hoc committee, and maintain all records related to School Contribution funds and activities for at least four (4) years. All expenditures of School Contribution funds furnished to the District pursuant to this Agreement are subject to audit by City and/or State agencies. District is responsible for the repayment of all audit exceptions and disallowances taken by City or State agencies related to activities conducted by District under this Agreement. 3. Indemnification. District agrees to indemnify, defend and hold the City, its elective and appointed boards, commissions, officers, agents, employees and consultants, harmless from and against any and all claims, liabilities, losses, damages, injuries, penalties, fines, judgments, awards, decrees, attorneys’ fees and related costs or expenses of any kind or nature (collectively, “Claims”) arising out of this Agreement, including without limitation District’s, or District’s contractors’, subcontractors’, agents’ or employees’ acts, omissions, or operations under this Agreement, and any activities funded by the School Contribution, whether such acts, omissions, or operations are by District or any of District’s contractors, subcontractors, agents, or employees, unless due to the willful misconduct or sole and active negligence of the City. District’s obligation to indemnify City shall survive the expiration or termination of this Agreement. 4. Entire Agreement. The terms and conditions of this Agreement constitute the entire agreement between City and District with respect to the Recurring Contributions. This Agreement may not be transferred, assigned, altered, amended or modified without the written consent of both Parties. 5. Termination. Either Party may terminate this Agreement without cause upon thirty (30) days' written notice to the other. 6. Applicable Law. 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, or the United States District Court for the Northern District of California. 7. Attorney’s 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 attorneys’ fees, arbitration costs and such other costs as may be determined by the court or arbitrator. 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.   9. 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. 10. Independent Contractors. Neither District nor District’s contractors, subcontractors, agents, officers, or employees are agents, partners, joint ventures or employees of City, and District’s relationship to the City, if any, arising herefrom is strictly that of an independent contractor. District’s contractors and subcontractors are exclusively and solely under the control and dominion of District. 11. No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the last date written below. City of Rohnert Park Darrin Jenkins, City Manager Date Per Resolution ________adopted _________ Cotati-Rohnert Park Unified School District Robert Haley, Superintendent Date ATTEST City Clerk Date APPROVED AS TO FORM City Attorney Date   ATTACHMENT 1 First Amended and Restated Memorandum of Understanding by and between the City of Rohnert Park and the Federated Indians of Graton Rancheria FIRST AMENDED AND RESTATED MEMORANDUM OF UNDERSTANDING BY AND BETWEEN THE CITY OF'ROHNERT PARK AND THE FEDERATED INDIANS OF'GRATON RANCHERIA DATED AS OF: March 26,2013 EFF'ECTIVE AS OF: Dett I IJ ,2013 OAK #4821-1906-1267 v4 TABLE OF CONTENTS DEFINITIONS NON-RECURRING MITIGATION AND IMPACT CONTRIBUTIONS RECURRING MITIGATION CONTRIBUTIONS COMMUNITY INVESTMENT RECURRING C ONTRIBUTION.... ...... PAYMENT TE,RMS. ADDITIONAL TRIBAL COVENANTS AND ACKNOV/LEDGMENTS .. TERM AND TERMINATION SUSPENSION EVENTS.............. RENEGOTIATION PROVISION..... SEVERABILITY..... DISPUTE, RESOLUTION PROVISIONS ........ WAIVER OF SOVEREIGN IMMUNITY........ RE,PRESENTATIONS AND V/ARRANTIES . GENERAL PROVISIONS ............ Page 1. 2. îJ. 4. 5. 6. l. 8. 9. 10. 11. 12. 13. t4. ',4 ,,7 ,.9 10 11 15 t6 18 ..18 ..t9 ..20 ..22 22 23 OAK #4821 -1906-126'l v4 I THIS FIRST AMENDED AND RESTATED MEMORANDUM OF UNDERSTANDING (the "MOU") is made this 26th day of March, 2013, by and between the City of Rohnert Park, a municipal organization organized and existing under and by virtue of the laws of the State of California (the "City"), and the Federated Indians of Graton Rancheria, a federally recognized Indian tribe (the "Tribe"). The capitalized terms not otherwise defined herein have the meaning set forth below. RECITALS WHEREAS, the Tribe consists of approximately 1,300 members of Coast Miwok and Southern Pomo descent; and V/HEREAS, in 1966, the federal government terminated its relationship with the Tribe pursuant to the California Rancheria Act of 1958 (Pub. L. 38-453) and transferred title to the lands known as the Graton Rancheria into private ownership; and V/HEREAS, in 2000, Congress restored federal recognition to the Tribe pursuant to the Graton Rancheria Restoration Act ("Restoration Act"), Pub. L. 106-568, 25 U.S.C. $ 1300n er seq.; and V/HEREAS, the Restoration Act required the Secretary of the Interior (the "Secrettry") to take real property identified by the Tribe and located in Marin or Sonoma counties into trust as the Tribe's reservation; and V/HEREAS, in April 2003, the Tribe identified property located on Highway 37 in southern Sonoma County (the "Highway 37 Property") for its reservation and announced plans to develop a resort hotel and gaming facility on a portion of the Highway 37 Property once in trust and deemed eligible for gaming; and V/HEREAS, at the urging of community representatives and environmentalists, the Tribe reconsidered its plans for the Highway 37 Property and, thereafler, donated its rights to the Highway 37 Property to the Sonoma Land Trust for perpetual preservation; and WHEREAS, in August 2003, the Tribe acquired rights to purchase alternative property located on Stony Point Road (the "Stony Point Road Property") west of the urban growth boundary of the City for its reservation and proposed project; and V/HEREAS, in August 2005, to address local land use and environmental concerns, the Tribe abandoned its plans for the Stony Point Road Property and, thereafter, the Tribe purchased approximat ely 254 acres of land (the "254 Acre Parce[") located primarily within the unincorporated arca of the County of Sonoma (the "County"); and WHEREAS, at the request of the City and the County, the Tribe agreed to wait until completion of the environmental review for the proposed Gaming Facility before exercising its righi under the Restoration Act to have lhe 254 Acre Parcel placed into trust; and V/HEREAS, the National Indian Gaming Commission (the "NIGC") conducted four public hearings and provided over 160 days for public comment in preparing a draft and final 1OAK #482 I -1906-1267 v4 environmental impact statement ("EIS") for the casino and hotel project pursuant to the National Environmental Policy Act; and WHEREAS, in October 2010, the NIGC issued its Record of Decision, concluding that the 254 Acre Parcel is eligible for gaming under IGRA and adopting as the prefened action a reduced intensity casino and hotel project (the "Project") that is significantly smaller than the project initially proposed by the Tribe and analyzed as Alternative A in the EIS, to be constructed and operated on approximately 68 acres of the 254 Acre Parcel located within the City urban growth boundary and outside the area identified as community separator in the County General Plan; and WHEREAS, following completion of the environmental review, the Tribe exercised its right under the Restoration Act to have fhe 254 Acre Parcel placed into trust; and WHEREAS, on October 1, 2010, pursuant to the Restoration Act, the Bureau of Indian Affairs of the United States Department of the Interior accepted the 254 Acre Parcel into trust on behalf of the Tribe for the Tribe's reservation (the "Reservation"); and WHEREAS, on March 27,2012, Governor Jerry Brown signed, and on l|l4ay 17,2012, the Legislature subsequently ratified, a class III gaming compact (the "Compact") between the Tribe and State that authorizes the operation of up to three thousand (3,000) Gaming Devices; and WHEREAS, on July 12,2012, the Secretary published notice in the Federal Register that the Compact is considered to have been approved pursuant to IGRA; an V/HEREAS, the Compact obligates the Tribe to pay a percentage of its gaming revenues to the State Gaming Agency on a quafterly basis for deposit into a trust fund called the Graton Mitigation Fund; and WHEREAS, the funds deposited into the Graton Mitigation Fund are to be paid by the State Gaming Agency in the following descending order, until exhausted: (i) the City pursuant to its agreement with the Tribe, (ii) the County pursuant to its agreement with the Tribe, and (iii) to the Revenue Sharing Trust Fund or the Tribal Nation Grant Fund; and V/HEREAS, the Tribe and the City are parties to a Memorandum of Understanding made effective as of October 14,2003 (the "Original MOU"), providing for funds to mitigate Project impacts within the City and make investments in and contributions to the Rohnert Park community; and WHEREAS, the City and the Tribe are parties to a Joint Exercise of Powers Agreement for Wastewater Services made effective as of July 23,2012 (the "Wastewater Services JEPA"), to provide City wastewater services to the Reservation, including the Project; and WHEREAS, the City, the County, and the Tribe are parties to a Joint Exercise of Powers Agreement for Implementation of Mitigation Measures for V/idening Wilfred Avenue made effective as of September 25,2012 (the "Wilfred Avenue JEPA"), under which the Tribe has 2OAK #4821-1906-1267 v4 agreed to pay the full cost of improvements to Wilfred Avenue from Highway 101 west to Stony Point Road and the full cost of improvements to Business Park Drive; and WHEREAS, the County and the Tribe are parties to an Intergovernmental Mitigation Agreement made effective as of October 23,2012 (the "County Agreement"), under which the Tribe will make payments to mitigate potential Project impacts, including for police and fire protection services, water conservation, Highway 101 improvements, health and human setvices, and for parks and open space; and WHEREAS, the City and the Tribe have determined the need to restate and amend the Original MOU, entered into more than nine (9) years ago, to reflect changes in the following: the relocation of the Project to a site within the City's urban growth boundary and adjacent to the City's incorporated boundaries, the Project scope, contributions to be made by the Parties prior to the Opening Date, the payments from the Graton Mitigation Fund, the Project's demands on City services, and other matters; and V/HEREAS, the Tribe fuither intends to advance a cooperative and mutually respectful govemment-to-government relationship with the City; and V/HEREAS, the Tribe is committed to entering into a voluntary contractual arrangement with the City pursuant to which the Tribe agrees to make certain financial contributions and community investments to mitigate various impacts that may arise in connection with the Project; and V/HEREAS, this MOU does not constitute a "project" for CEQA purposes because it involves the creation of a government funding mechanism and/or other government fiscal activity. The terms in this MOU do not involve any commitment to any specific "project" which may result in a potentially significant physical impact on the environment and only requires the Tribe to make mitigation payments for identif,red mitigation measures and programs. This MOU does not obligate the City to undertake any specified mitigation measure or program or construction project nor does it set a time for development as those terms are used in CEQA; and WHEREAS, the City recognizes and acknowledges that the Reservation is located outside the incorporated boundaries of the City and therefore the City has no authority to exercise jurisdiction over the Reservation or the Project. The City does not have legal authority to deliberate on, approve, disapprove, or otherwise exercise judgment regarding the Project. The City is therefore not deliberating on, approving, disapproving or otherwise exercising judgment regarding the Project by entering into this MOU; and V/HEREAS, the City acknowledges that the contributions and investments to be made by the Tribe and the other covenants made by the Tribe as set forth in this MOU are intended to be sufficient to mitigate the impacts of the Project on the City; and WHEREAS, in acknowledging the contributions and investments to be made by the Tribe as set forth in this MOU, the City intends to use the funding provided by the Tribe to mitigate impacts on City resources and services such as traffic, staffing levels in public safety, public works, trafhc circulation, neighborhood upgrades, workforce housing, problem gambling, storm water drainage, and other impacts; and JoAK#4821-1906-1267 v4 WHEREAS, the purpose of this MOU is to set forth the understandings of the Tribe and the City on the topics expressly set forth in this MOU. NOW, THEREFORE, in consideration of the above and of the mutual promises herein contained, the suffrciency of which is acknowledged, the Parties hereby agree as follows: 1. DEFINITIONS The terms not defined elsewhere in this MOU shall have the following meanings: 1.1 "CEQA" means the California Environmental Quality Act, California Public Resources Code $ 21000 et seq., and any amendments thereto, and the regulations promulgated thereunder, as the same may be amended or modif,red from time to time. r.2 *City" means the City of Rohnert Park, a municipal corporation organized and existing under and by virtue of the laws of the State of California. 1.3 "Compact" means the Tribal-State Compact between the State and the Tribe, governing the conduct of Gaming Activities on the Reservation pursuant to IGRA, as executed on March 27, 2012 by the State and March 26, 2012 by the Tribe, considered to have been approved by the Secretary pursuantto 25 U.S.C. $ 2710(dX8)(C), notice of which was published in the Federal Register on July 12, 2012 (a correction to the notice was published July 23,2012), as the same may be amended from time to time, and which is available online at; http : I I gov .ca. gov/docs/Graton_Compact_executed.pdf. 1.4 "Count¡/" means the County of Sonoma, California. 1.5 "Count¡r Agreement" means the Intergovernmental Mitigation Agreement betweenthe County and the Tribe made effective as of October 23,2012, as the same may be amended from time to time. t.6 "CPI Adjustment" means an annual increase from the dollar amount applicable to the previous year which is equal to the annual increase in the Consumer Price Index for all urban consumers in the San Francisco-Oakland-San Jose area. 1.7 "Day Baseball Style Arbitration" means the parties submit best, last and final offers to an arbitrator. After hearing presentations from each party, the arbitrator's only option is to choose between the two offers submitted by each party. The arbitrator cannot split the difference between the two offers nor select an alternative position. 1.8 "Due Dates" mean each and every date upon which contributions are due and expected to be received from the State Gaming Agency, as are more particularly described in Exhibit A hereto. 4OAK #4821-1906-1267 v4 1.9 "Gaming Activities" means the class III gaming activities authorized by section 3.1 of the Compact. 1.10 "Gaming Device" means any slot machine within the meaning of article IV, section 19, subdivision (f1 of the California Constitution as defined under section 2.10 of the Compact. 1.11 "Gaming Facility" or "Facilify" means any building in which Gaming Activities or any Gaming Operations occur, or in which the business records, teceipts, or funds of the Gaming Operations are maintained (excluding offsite facilities dedicated to storage of those records and financial institutions), and all rooms, buildings, and areas, including hotels, restaurants, parking lots, and walkways, a principal purpose of which is to serve the activities of the Gaming Operations rather than providing that operation with an incidental benefit as defined under section 2.I2 of the Compact. I.l2 "Graton Mitigation Fund" means the account established by the State Gaming Agency for the receipt of revenues paid by the Tribe pursuant to section 4.5 of the Compact and for the distribution of such revenues as described in section 4.5.1 of the Compact. I.I3 "EIS" means the environmental impact statement prepared by the NIGC for the Project pursuant to NEPA, final notice of which was published on page 9007 of Volume 74 of the Federal Register on February 27,2009. l.l4 "IGRA" means the Indian Gaming Regulatory Act of 1988 (P.L. 100-497,18 U.S.C. $ 1166 et seq. and25 U.S.C. $ 2701 et seq.), and any amendments thereto, and the regulations promulgated thereunder, as the same may be amended or modified from time to time. 1.15 "NEPA" means the National Environmental Policy Act of 1970, as amended (42 U.S.C. $S 4371 et seq.), and the regulations promulgated thereunder, as the same may be amended or modified from time to time. 1.16 "NIGC" means the National Indian Gaming Commission established pursuant to IGRA. I.l7 "Opening Date" or "Opening" means the first date on which the Gaming Activities at the Gaming Facility are open and available for use by the public. 1.18 "Parties" means the City and the Tribe as signatories to this MOU 1.19 "Project" means the development, construction and operation on the Reservation of all or any part of the reduced intensity project described as Variant H-subi and identihed as the Preferred Action Alternative in the Record of Decision. 5OAK #4821-1906-1267 v4 1.20 "Public Entify" means the State and any county, city, district, public authority, public agency and any other political subdivision or public corporation in the State, including, without limitation, the City and the County. l.2l "Quarter" means any one of the following three month periods: January through March, April through June, July through September, and October through December. If the Gaming Activities commence after the first day of any calendar quarter, the first Quarter for purposes of this MOU shall cover the period from the commencement of Gaming Activities to the end of the first full calendar quarter. L22 "Record of Decision" means the Record of Decision for the environmental impact statement prepared by the NIGC for the Project pursuant to NEPA, notice of which was published on page 63511 of Volume 75 of the Federal Register on October 15,2010. 1.23 "Reservation" means certain contiguous parcels totaling approximately 254 acres of land, including approximately 5 acres currently located within the City and another 68 acres currently located within the urban growth boundary of the City, which was taken into trust by the Bureau of Indian Affairs of the United States Department of Interior on October 1,2010, or any portion of such land, which is held by the United States of America in trust for the benefit of the Tribe. I.24 "Restoration Act" means the Graton Rancheria Restoration Act (Pub. L. 106- 568,25 U.S.C. $ 1300n). 1.25 "Secretary" means the Secretary of the United States Department of the Interior I.26 "Special Enforcement Activities" means public safety activities including, but not limited to, combating gangs, illegal drug use and other criminal activity in the City. I.27 "State" means the State of California. 1.28 "State Gaming Agency" means the entities authorized to: administer the Graton Mitigation Fund or other mitigation monies paid by the Tribe to the State for distribution to other public and private entities; and investigate, approve, regulate and license gaming pursuant to the Gambling Control Act (Chapter 5 (commencing with section 19800) of Division 8 of the California Business and Professions Code), or any successor statutory scheme, and any entity or entities in which that authority may hereafter be vested. I.29 "Tribe" means the Federated Indians of Graton Rancheria, a federally recognized Indian tribe. 1.30 "'Wastewater Services JEPA" means the Joint Exercise of Powers Agreement by and between the City and the Tribe for Vy'astewater Services made effective as of July 23,2012, as the same may be amended from time to time. 6OAK #4821-1906-1267 v4 1.31 "Wilfred Avenue JEPA" means the Joint Exercise of Powers Agreement by and between the City, the County, and the Tribe for Implementation of Mitigation Measures for Widening 'Wilfred Avenue made effective as of September 25, 2012, as the same may be amended from time to time. 2. NON-RECURRING MITIGATION AND IMPACT CONTRIBUTIONS 2.1 DnvnlopnrENT FEE CoxrrunurroN PRIoR To OIENING. To mitigate impacts of the Project on the City, its staff and other resources, the Tribe shall make a non- recurring cash contribution to the City of two million six hundred sixty four thousand dollars (52,664,000) in lieu of the development and related fees which the City would otherwise receive from a developer for the development of an equivalent commercial project (as if the Project was not located on the Reservation, and as if the entire Reservation was located within the boundaries of the City). The Tribe shall pay the non-recurring development fee to the City within thirty (30) calendar days following the Effective Date of this MOU, as is more particularly described in Section 7.1 hereof. 2.2 Ltw ENToRCEMENT CoNrnrnurloN PRIoR To OrENING. To mitigate impacts of the Project on law enforcement resources, the Tribe shall make a non-recurring cash contribution to the City of five hundred thousand dollars ($500,000) for Special Enforcement Activities in the City. The Tribe shall make the non- recurring law enforcement payment to the City in four (4) successive, quarterly installments of equal amounts of one hundred twenty five thousand dollars ($125,000) on July 10,2013, October 70,2013, January 10,2014 and April 10, 20t4. 2.3 Frnn aNo Punr.rc Slrnrv CoNrmnurIoNS Arrnn OpnNrt{c. To mitigate impacts of the Project on fire and public safety, the Tribe shall make the following non-recuffing contributions set forth in this Section 2.3. 2.3.1 The Tribe shall make a non-recuning cash contribution to the City of three million seven hundred fifty thousand dollars ($3,750,000) to develop and construct a new public safety building west of Highway 101 within the City (the "Public Safety Building"). The above-referenced contribution shall be made in eight (8) successive, quarterly installments of equal amounts commencing on the first business day of the seventh (7th) Quarter after the Opening Date. If the amount paid exceeds the actual cost of the Public Safety Building, the City shall (i) within one hundred twenty (120) days af\er a certificate of occupancy is issued for the Public Safety Building, provide written notif,rcation to the Tribe of the amount of the excess payment, and (ii) set aside the excess amount and credit such amount against the next payment due to the City from the Tribe pursuant to this MOU. 2.3.2 The Tribe shall make a non-recurring cash contribution to the City of one million two hundred thousand dollars ($1,200,000) to be used by the City 1OAK #482 l-1906-1267 v4 2.4 2.5 solely for the purchase and equipping of a ladder hre truck to be stationed at the Public Safety Building and capable of servicing the hotel which will be constructed as part of a later phase of the Project. The above- referenced contribution shall be made on the first business day of the eleventh (11th) Quarler after the Opening Date. 2.3.3 The Tribe shall make a non-recuring cash contribution to the City of four hundred ten thousand dollars ($410,000) to be used by the City solely for the purchase of public safety andlor other City vehicles required to mitigate impacts of the Project. The above-referenced contribution shall be made in four (4) successive, quarterly installments of one hundred two thousand five hundred dollars ($102,500) commencing on the first business day of the seventh (7th) Quarter after the Opening Date. Tnarrlc Ivrp¡,crs AND OrHEn Rrcnr oF'WAy ltvrpRovntrENT CoNTRIBUTIoN Arrnn OpBNINc. In order to mitigate potential impacts which are attributable, in whole or part, to the Project, which have not been identified as of the date of this MOU, the Tribe shall make a non-recurring cash contribution to the City of up to a maximum of four hundred hfty thousand dollars ($450,000) to be used by the City, on an as needed basis, to signalize or improve rights of way, plan for or construct rights of way, or to otherwise mitigate traffic impacts of the Project ("TraffÏc Improvements"). Any Traffic Improvement shall be mutually agreed upon by the City and the Tribe prior to the Tribe making any cash contribution. Following agreement by the parties on the actual Trafhc Improvements, the above-referenced contribution shall be made by the Tribe on the first business day of the next Quarter following a written request for such a contribution by the City to the Tribe. Mosrr,n HovrB P¡.Rx CoNrRrnurIoN AFTER OIENING. In order to mitigate potential impacts of the Project on the Rancho Verde Mobile Home Park, the Tribe shall make a non-recurring cash contribution to the City of up to a maximum of seven hundred thousand dollars ($700,000) to enable the City to implement measures, which are mutually agreed upon by the City and the Tribe to mitigate the preexisting storm water flooding problem at Rancho Verde and the Martin Avenue area and to mitigate any significant noise impacts at Rancho Verde identified in the EIS and/or Record of Decision ("Stormwater Measures"). It is understood that certain Stormwater Measures have already been constructed in the Martin Avenue business park area, including installation of check valves on existing storm drain outlets, construction of a portable pump station, and installation of a bypass pipeline, at a cost of one hundred eighty thousand dollars ($180,000). In the event additional Stormwater Measures have been agreed to by the City and the Tribe, the contribution which shall not exceed five hundred twenty thousand dollars ($520,000) shall be made by the Tribe on the first business day of the next Quarter following a written request for such contribution by the City to the Tribe; which request shall not be made prior to the Opening Date. 8OAK #4821-1906-1267 v4 3. RECURRINGMITIGATIONCONTRIBUTIONS L,q.w ENToRCEMENT RncunntNc CoNrnlnurloN. Following the Opening Date, the Tribe shall make a recurring cash contribution to the City of five hundred thousand dollars ($500,000) per annum for Special Enforcement Activities to mitigate the ongoing impacts of the Project on public safety in the City. The above-referenced contribution shall be made by the Tribe in four (4) successive, equal, quarterly installments commencing on the first business day of the third (3rd) Quarter after the Opening Date and on the first business day of every Quarter thereafter. J.Z Pnonr.nu G¿.vrnr,rNc RBcURRING CoNTRIBUTIoN. Following the Opening Date, the Tribe shall make a recurring cash contribution to the City of one hundred twenty five thousand dollars ($125,000) per arìnum to mitigate the social impacts of the Project on the City. The City shall grant such payment to an organization dedicated to the treatment and prevention of problem gambling or pathological gambling disorders. The recipient organization shall be determined by the City, with approval by the Tribe, which approval shall not be unreasonably withheld. The above-referenced contribution shall be made by the Tribe in four (4) successive, equal, quarterly installments commencing on the first business day of the third (3rd) Quarter after the Opening Date and on the first business day of every Quarter thereafter. -1.-'t W¿.rnnw¡.y RECURRING CoNTRIBUTIoN. Following the Opening Date, the Tribe shall make a recurring cash contribution to the City of fifty thousand dollars ($50,000) per annum to be used solely to address storm water drainage matters to mitigate potential impacts of the Project on storm water drainage. The above- referenced contribution shall be made by the Tribe in four (4) successive, equal, quarterly installments commencing on the f,rrst business day of the third (3rd) Quarter after the Opening Date and on the first business day of every Quarter thereafter. 3.4 SUppInUTNTALRncURRTNGCoNTRIBUTIoNS. 3.1 3.4.r 3.4.2 Suppr-nnrnNTAt. RncuRRlNG CoNTRIBUTIoN. Following the Opening Date, the Tribe shall make a recurring cash contribution to the City of five million dollars ($5,000,000) per annum to mitigate potential impacts of the Project on the City. The above-referenced contribution shall be made by the Tribe in four (4) successive, equal, quarterly installments commencing on the first business day of the third (3rd) Quarter after the Opening Date and on the hrst business day of every Quarter thereafter. These payments shall be paid from the Graton Mitigation Fund which is expected to include deposits made by the Tribe within thirty (30) days of the close of the prior calendar quafier. RncunnrNc PUBLIc SnRvrcns CoNrnlsurloN. Following the Opening Date, the Tribe shall make a recurring cash contribution to the City of two 9OAK #4821-1906-1267 v4 million three hundred sixty nine thousand dollars ($2,369,000) per annum to mitigate potential impacts of the Project on City services. It is the intent of the City to use these funds in part to provide for additional stafhng levels to mitigate the potential impacts on public safety and/or other City services. The above-referenced contribution shall be made by the Tribe in four (4) successive, equal, quarterly installments commencing on the first business day of the third (3rd) Quarter after the Opening Date and on the fìrst business day of every Quarter thereafter. These payments shall be paid from the Graton Mitigation Fund which is expected to include deposits made by the Tribe within thirty (30) days of the close of the prior calendar quarter. 4, COMMUNITYINVESTMENTRECURRINGCONTRIBUTION To make investments in the Rohnert Park schools, housing and general community and to mitigate potential impacts of the Project on the Rohnert Park schools, housing and general community, from and after the Opening Date, subject to Section 5.2.3 of this MOU, the Tribe shall make investments in and contributions to the Rohnert Park community as follows: 4.I Scnool CoNrnIsurIoN. The Tribe shall make a recurring cash contribution to the Cotati-Rohnert Park Unified School District of one million dollars ($1,000,000) per arìnum. The use and distribution of the funds shall be governed by an ad hoc committee which shall meet at least annually and shall consist of two (2) members designated by the Tribe, two (2) members designated by the Cotati-Rohnert Park Unified School District and one (1) member chosen by the other four (4) members. The above-referenced contribution shall be made by the Tribe in four (4) successive, equal, quarterly installments commencing on the first business day of the third (3rd) Quarter after the Opening Date and on the first business day of every Quarter thereafter. These payments shall be paid from the Graton Mitigation Fund which is expected to include deposits made by the Tribe within thirty (30) days of the close of the prior calendar quarter. 4.2 Curnrr,rnr,ECoNTRIBUTIoNS. 4.2.1 The Tribe shall make a recurring cash contribution of one million dollars ($1,000,000) per annum to the Rohnert Park Foundation. The above- referenced contribution shall be made by the Tribe in four successive, equal, quarterly installments commencing on the f,rrst business day of the third (3rd) Quarter after the Opening Date and on the hrst business day of every Quarter thereafter. These payments shall be paid from the Graton Mitigation Fund which is expected to include deposits made by the Tribe within thirty (30) days of the close of the prior calendar quarter. 4.2.2 The Tribe shall make a separate, recuning cash contribution of one million dollars ($1,000,000) per annum to a charitable organization(s) or other organization(s) of its sole selection which enhances the City, Sonoma OAK #4821-l 906-1267 v4 10 State University, or otherwise mitigates the impacts of the Project. The above-referenced contribution shall be made by the Tribe in four (4) successive, equal, quarterly installments commencing on the first business day of the fifteenth (15th) Quarter after the Opening Date and on the first business day of every Quarter thereafter. The Tribe shall provide the City with written notice of its payment to the organization(s) of its choice within fifteen (15) calendar days of such payment. These payments shall be paid from the Graton Mitigation Fund which is expected to include deposits made by the Tribe within thirty (30) days of the close of the prior calendar quarter. ConnmuNlrv CoNrRlnurIoN. The Tribe shall make a recurring cash contribution to the City of one million dollars ($1,000,000) per annum to be used for neighborhood upgrade or workforce housing programs. The City alone shall have the authority to determine the use and distribution of these funds. The above-referenced contribution shall be made by the Tribe in four (4) successive, equal, quarterly installments commencing on the f,rrst business day of the third (3rd) Quarter after the Opening Date and on the first business day of every Quarter thereafter. These payments shall be paid from the Graton Mitigation Fund which is expected to include deposits made by the Tribe within thirty (30) days of the close of the prior calendar quarter. 4.3 5. PAYMENT TERMS 5.1 Sr¿.rn GavuNc AcBNcv PavvrnNts. 5.1.1 This MOU requires the Tribe to make the contributions to the City specified in Sections 2.3 through Section 4 hereof as specified on the Due Dates, which are attached hereto as Exhibit A and incorporated herein by this reference. Within thirty (30) calendar days of the Opening Date, and annually thereafter in June of each year, the City shall prepare an annual payment schedule indicating the contributions to be made within the four Quarters of that year pursuant to this MOU ("Annual Payment Schedule"). The form of Annual Payment Schedule for 201412015 is attached hereto as Exhibit B and shall be updated to incorporate CPI data. The City shall submit the Annual Payment Schedule to the State Gaming Agency each year after calculating the CPI adjustments provided for in Section 5.5. 5.t.2 The Compact obligates the Tribe to make payments into the Graton Mitigation Fund. The State Gaming Agency is then obligated to disperse revenues from the Graton Mitigation Fund to the City according to the terms of this MOU pursuant to Compact section 4.5). All remaining funds in the Graton Mitigation Fund will then be dispersed first to the County, and then to the Revenue Sharing Trust Fund and/or the Tribal Nations Grant Fund according to the terms of the Compact. OAK #4821-1906-1267 v4 11 The Parties expect the State Gaming Agency to make the payments due to the City pursuant to this MOU and the Compact on the Due Dates reflected on Exhibit A. The State Gaming Agency will make the first payment from the Graton Mitigation Fund following the end of the first full Quarter after the Opening Date. The timing of the payments in this MOU have taken the above referenced expectation into account and the Due Dates listed in Exhibit A are the latest dates upon which the City is to receive payments from the State Gaming Agency on behalf of the Tribe. In the event of insufhcient revenues in the Graton Mitigation Fund to make all the contributions set forth in this MOU, and the payments set forth in sections 3(a), 3(b), 3(d) and 3(e) of the County Agreement, the State Gaming Agency shall disperse funds from the Graton Mitigation Fund in the following priority order, until exhausted: (i) the Guaranteed Contributions to the City (defined in Section 5.2.1) shall be paid first, (ii) the payments guaranteed to the County in sections 3(a), 3(b), 3(d), and 3(e) of the County Agreement shall be paid second, (iii) the contributions to the City established in Section 4.1, 4.2 and 4.3 of this MOU in such amounts as available for distribution orl a pro rata basis shall be paid third, (iv) the payments to the County established in sections 3(c), 3(f), 3(g),3(h),3(i) and 3O of the County Agreement shall be paid fourth, (v) the payments established in section 5(e) of the County Agreement regarding reimbursements shall be paid hfth, (vi) two hundred fifty thousand dollars ($250,000) of the quarterly payment for community benefits set forth in 4(a) of the County Agreement shall be paid sixth, (vii) the contributions established in Section 5.3 of this MOU regarding reimbursements shall be paid seventh, and (viii) any other payments due out of the Graton Mitigation Fund shall be paid eighth. 5.2 Gu.rRrurnnD CoNTRTBUTToNS By rHE Tnrnn. 5.2.1 The Parties agree that certain contributions under this MOU are of such impofiance to the mitigation of the Project's impacts that the City should have a guarantee that those contributions will be made, regardless of the availability of funds in the Graton Mitigation Fund. Accordingly, in the event that the State Gaming Agency fails to timely disperse to the City any payment referenced in Sections 2.3 through and including Section 2.5, and Section 3 (including all subdivisions thereof), by the Due Dates, then, within ten (10) days following the Due Dates, the Tribe shall make all of the payments due under Sections 2.3 tfuough and including Section 2.5 and Sections 3 of this MOU to the City ("Guaranteed Contributions"). 5.2.2 The contributions under Sections 2.1 and 2.2 are not addressed hereunder because they must be paid by the Tribe prior to the Opening Date, so these payments are not contingent on the availability of funds in the Graton Mitigation Fund. 5.1.3 5.t.4 OAK #4821-1906-1267 v4 l2 5.2.3 5.3 RnrvrnuRsEMENTS. s.3. 1 The contributions under Section 4.1, 4.2 and 4.3 are not addressed hereunder because the Parties do not intend for those contributions to be guaranteed by the Tribe in the event that the State Gaming Agency lacks the funds in the Graton Mitigation Fund to make the contributions. Payments required under Section 4.7, 4.2 and 4.3 shall be made if sufficient funds are available, as established in Section 5.1.4. RermnuRsEMENTS oF CoNTRTBUTToNS M¡,rn By rHE TRrnB To rHE Crrv. The City agrees to use its best efforts, to the extent such action is authorized by law or statute, to request reimbursement of contributions previously made by the Tribe as described below from the State Gaming Agency. In the event the City receives any reimbursement from the State Gaming Agency for contributions previously made by the Tribe as described below, the City shall reimburse the Tribe any payments the City receives from the State Gaming Agency which are specifically delineated for purposes of reimbursing the Tribe ("Reimbursements"). The City shall make such Reimbursements available to the Tribe within thifty (30) calendar days of receipt thereof. However, in no event shall the City be liable to the Tribe to make any payment of Reimbursements unless the City has received said Reimbursements from the State Gaming Agency. In the event the City does not receive Reimbursements from the State Gaming Agency for the specific purpose of reimbursing the Tribe, the City shall incur no liability and the Tribe agrees not to initiate any litigation or bring any other claims against the City regarding the same. The Reimbursements which the City will seek pursuant to this Section 5.3.1 are as follows: A. RnrvrnuRsEMENT oF Gu¡,naNrnnr CoNrRrnurroNs. To reimburse the Tribe for mitigation payments previously made by the Tribe as Guaranteed Contributions, the City shall reimburse the Tribe any Guaranteed Contributions the City receives from the State Gaming Agency. B. RUNTSURSEMENT FoR'WTLFRED AvENUE IMpRovEMENTS. The Parties acknowledge and agree that the Tribe has and will incur significant costs for road improvements to Wilfred Avenue and Business Park Drive pursuant to the 'Wilfred Avenue JEPA and that funds paid by the Tribe into the Graton Mitigation Fund are intended to pay for such off- reservation mitigation costs. Accordingly, to reimburse the Tribe for the payments for improvements to Wilfred Avenue and Business Park Drive made pursuant to the Wilfred Avenue JEPA ("Wilfred Improvement Reimbursement"), the City shall reimburse the Tribe any Wilfred Improvements Reimbursement the City receives from the State Gaming Agency. O AK # 4821 -'l 906- 1267 v4 13 5.4 C. RuvrnunsEMBNT noR Wrlrnnt AvBNUB MUNTENANCE. To reimburse the Tribe for the payments to the City which mitigate the costs associated with the maintenance of Wilfred Avenue which costs are initially two hundred eighty eight thousand two hundred foufieen dollars ($288,214) per annum and are required to be made pursuant to Section 6.6.2 of the Wilfred Avenue JEPA ("\ililfred Maintenance Reimbursement"), the City shall reimburse the Tribe arry V/ilfred Maintenance Reimbursement the City receives from the State Gaming Agency. D. Rnrn¿nuRSEMENT FoR DnvnloptuBNt Fnn CoNrnrnurroN Pnton ro OPENING. To reimburse the Tribe for the non-recurring cash contribution of two million six hundred sixty four thousand dollars (52,664,000) in lieu of development and related fees to mitigate the impact of the Project on City staff and other resources as set forth in Section 2.1 of this MOU ("Development Fee Contribution"), the City shall reimburse the Tribe any Development Fee Contribution the City receives from the State Gaming Agency. E. RnrmnunsEMENT FoR Spncrll ENroRcnuBNr Acrrvrrrns CoNrRrnurIoN. To reimburse the Tribe for the non recurring cash contribution for contributions made to mitigate impacts on law enforcement activities as set forth in Section 2.2 of this MOU paid by the Tribe prior to the Opening Date ("SEA Reimbursement") the City shall reimburse the Tribe any SEA Reimbursement the City receives from the State Gaming Agency. DnrucrroNs FoRArvaNcn PlvrrBNrs. The City shall deduct the amount of the contributions which the Tribe made to the NET referenced in subsection 3(d) of the Original MOU ("NET Payments") less amounts paid by the City for mitigation which the Tribe agreed to pay pursuant to the Original MOU, including storm water improvements to Martin Avenue, installation of an on-demand traff,rc signal for the Rancho Verde Mobile Home Park, and relocation of the repeater system from the former Cusher's Stadium to the existing public safety building ("City Mitigation Payments"). It is agreed that the NET Payments minus the City Mitigation Payments equals two million four hundred nine thousand seven hundred forty five dollars (52,409,745) ("Deduction Amount"), The Deduction Amount shall be deducted from the contributions due to the City under Section 4.2.1 of this MOU in twelve (12) equal, successive quarterly installments commencing on the first business day of the third (3rd) Quarter after the Opening Date and continuing on the first business day of the next eleven (1i) Quarters thereafter. In the event that there are insuff,rcient payments made from the Graton Mitigation Fund to the City under Section 4.2.1 fuom which to deduct the above- described amounts, the remainder shall be deducted from each successive Quarter, until satisfied. In no event shall the City be obligated to take deductions from other payments made under this MOU. OAK #4821-1906-1267 v4 14 5.7 6. ADDITIONAL TRIBAL COVENANTS AND ACKNOWLEDGMENTS 5.5 5.6 6.1 6.2 6.3 CPI Al.lusrMENT. All recurring contributions and deductions described in this MOU shall be increased annually by the CPI Adjustment, which shall be effective on July 1 of each year following the Opening Date. For the purposes of this MOU, the April to April index shall be effective to July i st. Coi,ruNcnNT PAvMENTS. Notwithstanding any other provision of this MOU, the Parties acknowledge and agree that except for the non-recurring payments to commence prior to the Opening Date as set forth in Sections 2.1 and 2.2 of this MOU, the Tribe's mitigation contributions shall be contingent upon the occunence of the Opening Date and the continuation thereafter of Gaming Activities. In the event the Opening Date does not occur for any reason, mitigation payments payable after the Opening Date shall not be due. Pu¡lrc ArrnrnurroN. The City shall generally identify and publicly attribute mitigation measures and community investments and projects funded and supported by the Tribe, including, but not limited to, in the City budget process. BuIlorxc AND SAFETv CoDES. The Parties acknowledge and agree that the Gaming Facility is subject to the California Building Code and the California Public Safety Code applicable to the County, as set forth in Titles 19 and 24 of the California Code of Regulations, and, pursuant to the Compact, is subject to plan checks, building inspections, and annual certification that the Gaming Facility is operated in conformity with the applicable codes. Frnn rNo EvrnncnNcy SERvICES. The Parties acknowledge and agree that the Gaming Facility is subject to Title 19 of the California Code of Regulations, the California Building Code, and the California Public Safety Code applicable to similar facilities in the County, and that the Compact requires that the Gaming Facility, as set forth in Titles 19 and 24 of the California Code of Regulations, and, pursuant to the Compact, is subject to regular inspections to ensure that the Gaming Facility meets a reasonable standard of fire safety and life safety. Law ENroRCEMENT. To fuither mitigate potential impacts of the Project on law enforcement resources, the Tribe shall: 6.3.1 adopt rules prohibiting anyone under 2l years of age from gambling; 6.3.2 adopt employee training programs and policies relating to responsible alcoholic beverage services; 6.3.3 conduct background checks of all gaming employees; 6.3.4 provide a full complement of security personnel at the Project at all times; and OAK #4821-1906-1267 v4 15 6.3.5 adopt programs and policies which discourage gang members from visiting the Gaming Facility. EunRcnNcy MEDICAL SERVICES. To mitigate potential impacts of the Project on City emergency medical services, the Tribe shall provide (i) emergency medical training to certain members of its security staff, and (ii) emergency medical equipment, including defibrillators, at the Gaming Facility. SolIo W¡.srn DIspos,u. To mitigate potential impacts of the Project on solid waste disposal resources, the Tribe shall, to the extent determined by the Tribe to be feasible and commercially reasonable, implement single stream recycling and green waste diversion. Sronvl'W¡.rpn Dn¡INlcB. To mitigate potential impacts of the Project on storm water drainage resources, the Tribe shall obtain a National Pollution Discharge Elimination System permit from the United States Environmental Protection Agency if required by the federal Clean Water Act. Errplovnn RBcnuIrvrENT. To mitigate potential impacts of the Project on local work forces, the Parties acknowledge that the Project is subject to (i) a Project Labor Agreement with the Sonoma, Lake, Mendocino County Building & Construction Trades Council, and (ii) a Neutrality and Card Check Agreement with I-INITE HERE. The Tribe shall implement a hiring preference for Native Americans and for City residents subject to collective bargaining agreements and federal employment laws and regulations. R¡.Ncno Vnnoo Monrln HouB P¡.nx. To mitigate potential impacts of the Project on the Rancho Verde Mobile Home Park, the Tribe shall not purchase the Rancho Verde Mobile Home Park for a period of twenty (20) years from the date of the Original MOU. No Golr Counsp. To mitigate potential impacts of the Project on City golf courses, the Tribe shall not construct a golf course on the Reservation until the earlier of: (i) twenty (20) years from the effective date of this MOU, or (ii) the date on which the aggregate number of rounds of golf played on courses existing in the City on the effective date of this MOU exceeds 150,000 rounds in any given calendar year. 7. TERM AND TERMINATION l.l Ennncuvn DlrB. This MOU shall not become effective unless and until the following events have occurred: 7 .l.l This MOU has been approved by the City Council of the City, approved as to form by legal counsel for the City and executed and delivered by the City; and 6.4 6.5 6.6 6.7 6.8 6.9 OAK #4821-1906-1267 v4 t6 7.2 7.3 7.4 7.5 7 .1.2 This MOU has been approved by the Tribal Council and the General Council of the Tribe, approved as to form by outside legal counsel to the Tribe, and executed and delivered by the Tribe. ExprRnrroN DArE. Once effective, this MOU shall be in full force and effect until the later of (i) December 31, 2033, or (ii) the date the Compact or any extension thereof expires or is terminated ("Expiration Date"). Notwithstanding the foregoing, this MOU shall be automatically extended for any period that Gaming Activities continue to be operated on the Reservation and the terms (including the Tribe's obligation to make all payments due pursuant to this MOU) shall be in full force and effect until the Parties meet, confer and renegotiate new terms of a memorandum of understanding as provided for in Section 7.3 hereof. Based on the foregoing, the terms of this Amended MOU shall expire when the parties successfully renegotiate and adopt a new memorandum of understanding, thereby superseding this Amended MOU. MOU RnNncorrATIoNS. If the Tribe enters into a new tribal-state gaming compact ("New Gaming Compact"), extends the term of the Compact ("Compact Extension Agreement"), or the Expiration Date occurs, commencing not later than ninety (90) days following the Legislature's adoption of the New Gaming Compact, the Legislature's adoption of a Compact Extension Agreement, or the Expiration Date, the Parties shall meet, confer and renegotiate with respect to the provisions of this MOU that provide for mitigation and community benefit payments made by the Tribe under this MOU ("Compact Extension Renegotiations"). If the Parties are unable to agree upon the dollar amounts necessary to maintain substantial mitigation of impacts and a comparable level of community investments within one hundred and eighty (180) days of commencing Compact Extension Renegotiations, the Parties may trigger the procedures for dispute resolution contained in Section 11 and, if unable to reach agreement, an arbitrator shall determine in a Day Baseball Style Arbitration the amount necessary to retain substantially the same overall level of support for mitigation and community benefits contemplated in this MOU. ErrBcr oF ExpIRATIoN oR TnnurN,tuoN. Upon the expiration, as provided for in Section 7.2, or termination, as provided for in Section 7.5, of this MOU, the provisions of this MOU shall be of no further force and effect and none of the provisions of this MOU shall survive such expiration or termination; provided, however, that the Tribe shall make contributions pursuant to the terms of this MOU which became due and payable prior to any expiration date; and provided, further, that, if this MOU terminates for reasons unrelated to a default by the City, the Tribe shall make any contributions pursuant to the terms of this MOU which became due and payable prior to such termination date. TnRvrrxluoN. Unless otherwise agreed by the Parties, this MOU shall automatically terminate in the event, and on the date, that the Tribe: (i) permanently ceases development and construction of the Project without having commenced Gaming Activities, or (ii) permanently ceases the operation of all OAK #4821-1906-1267 v4 l7 Gaming Activities on the Reservation and the provisions of Section 8.1 do not apply. 8. SUSPENSION EVENTS 8.1 If, due to Force Majeure (as hereinafter defined), an act of God, valid business considerations or any other reason, 5I% of all Gaming Activities previously conducted by the Tribe on the Reservation are suspended or terminated for a period of at least three (3) months, the Tribe's obligations to make annual financial contributions pursuant to Sections 2 through 4 of this MOU shall be suspended in the same manner as authorized under the Compact until such time as the Gaming Activities are resumed. The period of obligations under this MOU shall be extended for the time of the suspension. For the purposes of this section, the term "Force Majeure" shall include, without limitation, the following circumstances that result in a suspension of 51%o of all Gaming Activities previously conducted by the Tribe on the Reservation: earthquake; flood; fire; other natural disasters; changes in law, regulation or govemmental policy; riots; war; or terrorism. Nothing in this section shall impact the Tribe's liability for financial contributions which became due and payable prior to the date such Gaming Activities were suspended or terminated. 'When a Force Majeure event occurs, the Tribe shall provide written notice within seventy-two (72) hours of the event that performance of its obligations is prevented or delayed, and within seventy-two (72) hours after Gaming Activities are resumed. 9. RENEGOTIATIONPROVISION 9.1 .1 RnNncouATIoN EvnNrs. The City or the Tribe may request that the other party renegotiate one or more of the provisions of this MOU if there is a change in law, facts, or other unforeseen circumstances that fundamentally changes the City's or Tribe's hnancial assumptions made in entering into this MOU ("Fundamental Changes Renegotiations"). Such Fundamental Changes shall be deemed to include, without limitation, a signif,rcant adverse impact on either the City or Tribe as follows: (i)the existence of a significant adverse impact of the Project on the City whose extent of impact was not specifically addressed in the EIS or was not anticipated by the City; (iÐ any change ending the prohibition on Class III gaming (as defined in IGRA) or the operation of Gaming Devices by non-Indians in California that substantially affects the Project's financial projections and actual revenues by at least 25o/o; and (iiÐ a substantial reduction in the scope of all Gaming Activities permitted on the Reservation, whether pursuant to a change in OAK #4821-1906-1267 v4 18 9.2 10. SEVERABILITY 10.1 federal, state or local constitutions, laws, rules or regulations, or amendment of the Compact. FuNt¡.vrn¡{TAL CHANGES RENEGoTIATIoN PRocnouRns. All requests to enter into Fundamental Changes Renegotiations shall be by written notice and shall include reference to the provisions of this MOU to be renegotiated. Upon receipt of such notice, the Parties shall attempt to renegotiate this MOU in good faith. The Parties shall confer promptly and determine a schedule for commencing negotiations within fifteen (15) days of the notice. Each Party is hereby authorized to designate the person responsible for conducting the negotiations, and shall execute any documents necessary to confirm such authorization. The purpose of the negotiations will be to attempt to renegotiate the provisions of this MOU in good faith so that the Parties retain substantially the same rights, levels of mitigation, and community benefits contemplated as of the date of this MOU. If, the Parties are unable to agree upon the dollar amounts necessary to maintain substantial mitigation of impacts and a comparable level of community investments within one hundred and eighty (180) days of commencing Fundamental Changes Renegotiations, the Parties may trigger the dispute resolution provisions contained in Section I 1. Notwithstanding any provision of California law to the contrary, if any provision of this MOU is held to be illegal, invalid, or unenforceable under present or future laws, such provision shall be fully severable, this MOU shall be construed and enforced as if such void, illegal, invalid, or unenforceable provision had never comprised a part of this MOU, and the remaining provisions of this MOU shall remain in full force and effect and shall not be affected by the void, illegal, invalid, or unenforceable provision or by its severance from this MOU. Similarly, notwithstanding any provision of California, Federal or Tribal law to the contrary, if any provision of this MOU requires the City, Tribe, or any other Public Entity to take any action which has not been taken in connection with the approval of this MOU or otherwise, or subjects this MOU to the referendum or initiative process under California law, this MOU shall be construed and enforced as if such provision had never comprised a part of this MOU, and the remaining provisions of this MOU shall remain in full force and effect and shall not be affected by the applicable provision or by its severance from this MOU. In the event that the entire MOU is declared void, illegal, invalid, unenforceable or unauthorized, the Parties shall enter into good faith negotiations to negotiate a new agreement that maintains the expectation of each Party in entering into this MOU. If any of the events referenced in this section occurs, the Parties shall endeavor in good faith negotiations to replace the applicable provision or provisions with a substitute provision, the economic and other effects of which comes as close as possible to that of the provision which has been severed. Such negotiations shall be conducted pursuant to the provisions of section 9(b) of this MOU. OAK #4821-1906-1267 v4 t9 1 1. DISPUTE RESOLUTION PROVISIONS 1 1.1 Drspurn RBsor,urroN. In an effort to foster good government-to-government relationships and to assure that the Tribe is not unreasonably prevented from engaging in gaming and other commercial activities on the Reservation, and the City is able to insure that the off-reservation impacts of the Project are fully mitigated, the Parties agree to the dispute resolution procedures set forth in this section. Il.2 Mnnr AND CoNFER. The Parties shall make their best efforts to resolve claims arising under this MOU by good faith negotiations whenever possible. Any such disputes between the Parties shall first be subjected to a process of meeting and conferring in good faith in order to foster a spirit of cooperation in the implementation of the terms of this MOU as follows: ll.2.l A Party shall give the other Party, as soon as possible after the event giving rise to the dispute, written notice setting forth, with specificity, the claims of breach of this MOU. 11.2.2 The Parties shall meet and confer in a good faith attemptto resolve such dispute through negotiation not later than 10 days after the receipt of notice, unless the Parties agree in writing to an extension of time. 11.3 Mnrr¡.uoN oR OrHER DISpurE RnsolurroN. If such dispute is not resolved to the satisfaction of the Parties, the Parties may, by mutual agreement, pursue mediation or any other method of dispute resolution; provided, however, that no Party is under an obligation to agree to such mediation or other method of dispute resolution. lL4 BINtrNc ARtIrRtuoN. If such dispute is not resolved to the satisfaction of the Parties within thirty (30) calendar days after either the first meeting or after any other dispute resolution under section 11.3, or such other extended period as the Parties may agree in writing, then the Parties may seek to have the dispute resolved by binding arbitration in accordance with the following procedures: ll.4.I Upon the request of a Party in writing, the dispute shall be submitted to binding arbitration in accordance with this section. II.4.2 The disputes to be submitted to arbitration shall be limited to claims arising under this MOU, and which were subject to the meet and confer in section 11(b) of this MOU. II.4.3 In the event there is any dispute as to whether a matter is subject to the arbitration provisions of this MOU, or any dispute concerning the scope of the matter or matters to be arbitrated, the disagreement as to whether the dispute is subject to the arbitration provisions of this MOU or the scope of such arbitration shall be submitted to the arbitrator referenced in subsection (iv) of this section. OAK #4821-1906-1267 v4 20 1114.4 The arbitration shall be conducted before a single arbitrator in accordance with the JAMS Streamlined Arbitration Rules (or such other streamlined arbitration rules as the Parties may agree), as modified by the provisions of this MOU. 1114.5 The arbitrator shall be selected by the Parties. If at such time the Parties are unable to agree upon the selection of a single arbitrator, then each Party shall name one arbitrator and the two arbitrators thus selected shall select a third arbitrator who shall be a retired California Superior Couft or United States District Court judge; provided, however, if either Party fails to select an arbitrator within fourteen (14) days of delivery of the request for arbitration, then the arbitrator selected by the other Party shall conduct the arbitration. IL4.6 The arbitration shall take place in Sonoma County or another location mutually agreed upon by the Parties. IL4.7 The provisions of Section 1283.05 of the California Code of Civil Procedure shall apply; provided that no discovery authorized by that section may be conducted without leave of the arbitrator. 11.4.8 Each side shall bear its own costs, attorneys' fees, and one-half the costs and expenses of the arbitrator. 11.4.9 The decision of the arbitrator should be made within thirty (30) days of the arbitration. The decision shall be in writing and shall give reasons for the decision. 11.5 Davr¡.cBs. The Parties agree that any monetary damages awarded or arising under this MOU shall be exclusively limited to actual direct damages incurred based on obligations contained in this MOU that have been demonstrated with substantial certainty and which do not, in any event, exceed the total amount of the annual financial contributions which the Tribe is required to make to the City under the MOU. In no instance shall the Parties to this MOU be entitled to special, incidental, indirect, consequential or punitive damages, lost profits or attorney's fees. The Parties agree not to assert any claim for damages, injunctive, or other relief which is not consistent with the provisions of this MOU. II.6 CoNrrnvr¡.TIoN oF Awnnos. Any Party to an arbitration in which an award has been made pursuant to this section may petition the Federal District Court for the Northern District of California or, if such Court declines jurisdiction, the State Superior Court for Sonoma County or any other court of competent jurisdiction to confirm the award, including any appellate proceedings. The Parties expressly consent to the jurisdiction of such Courts for the purpose of confirmation of such an award. An award shall be confirmed, provided that: 1 1 .6.1 The award is limited to the purposes of arbitration stated in this section. OAK #4821-1906-1267 v4 21 1I.6.2 No person or entity other than the Parties is a party to the action, unless failure to join a third party would deprive the court of jurisdiction; provided, however, that nothing herein shall be construed to constitute a waiver of the sovereign immunity of the Parties in respect to any such third party. 1 1.6.3 If an award is confirmed, judgment shall be entered in conformity with the award. The judgment so entered has the same force and effect as, and is subject to all the provisions of law relating to, a judgment in a civil action, and may be enforced like any other judgment of the court in which it is entered. ll.7 INrnnvnNTIoN. Nothing in this MOU shall be construed to constitute a waiver of the sovereign immunity of the Tribe or the City with respect to intervention by any additional party not deemed an indispensable party to the proceeding. 11.8 CoNnrtnNTIALITy. Unless otherwise agreed by the Parties, any dispute resolution meetings or communications, or mediation, shall be in the context of a settlement discussion to potential litigation and remain confidential to the extent not prohibited by applicable law. 12. \ilAIVER OF SOVEREIGN IMMUNITY t2.t Pursuant to General Council Resolution îß-4, and subject to the provisions of this section, the Tribe expressly and irrevocably waives sovereign immunity (and any defenses based thereon) in favor of the City, but not as to any other person or entity, as to any dispute which specifically arises under this MOU and not as to any other action, matters or disputes. The Tribe does not waive its sovereign immunity with respect to (i) actions by third parties, except for parties acting on behalf of, under authorization from, or pursuant to a contract with, the Tribe or City; or (ii) disputes between the Tribe and the City which do not specif,rcally arise under this MOU. The Tribe fuither agrees that exhaustion of administrative remedies, including before any tribal courl, shall not be required prior to proceeding to arbitration or court action under section 1 1. 13. REPRESENTATIONSAND\ilARRANTIES Each Party represents, warrants and covenants to the other Party as follows: 13.1 Aurnonrrv. Such Party has the legal power and authority to execute and deliver this MOU and to perform its obligations under this MOU. 13.2 Dun AuruoRIZATIoN. The approval, execution, and delivery of this MOU, and waiver of sovereign immunity, and the performance by such Party of its obligations under this MOU, have been authorized by all requisite actions of such Party. OAK #4821-1906-1267 v4 22 13.3 DuB ExrcurloN lNo Dnlrvrnv. The persons executing this MOU on behalf of such Parly are duly authorized to execute and deliver this MOU on behalf of such Par1y. 13.4 BNnoncnnBrlrry. This MOU constitutes the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms, and, once executed and delivered, cannot be invalidated pursuant to any subsequent action of the City Council of the City or the Tribal Council or General Council of the Tribe, as applicable. 13.5 No CoNrltcr. The approval, execution, delivery and performance of this MOU does not conflict with any other agreement to which such Party is a party and does not violate or require any action which has not been taken under any law, statute, rule, regulation, ordinance, general plan, tribal law, specific plan or court order or decree applicable to such Party. 13.6 W¡¡vnns. A waiver of any breach of any provision of this MOU shall not constitute or operate as a waiver of any other breach of such provision or of any other provisions, nor shall any failure to enforce any provision operate as a waiver ofsuch provision or ofany other provisions. 14. GENERAL PROVISIONS 14.l No SunurssroN To JURISDICTIoN. The Parties acknowledge and agree that this MOU, except as otherwise specif,red, is not intended to constitute, and shall not be construed as constituting, a submission by the Tribe to the jurisdiction of (i) the City or any or any of its subdivisions, departments or courts, (ii) any of its or their respective officials, employees, inspectors or contractors, or (iii) any of its or their respective laws, rules, regulations, ordinances, general plans or specific plans. 14.2 TnlRr Prnry Marrpns. This MOU is not intended to, and shall not be construed to, create any right on the part of any third party to bring any action or otherwise enforce any of its terms. 14.3 INoBnrnrnrcATIoN. The Tribe agrees to indemnify, defend and hold harmless the City (with counsel reasonably acceptable to the City) from and against any and all claims, losses, proceedings, damages, causes of action, liability, costs and expenses (including its reasonable attorneys' fees) arising from any action or proceeding filed against the City which challenges the City's approval, execution or delivery of this MOU. I4.4 Norrco. All notices required by this MOU shall be deemed to have been given when made in writing and delivered or mailed to the respective Parties and their representatives at their respective addresses as set forth below or such other addresses as they may provide to the other Party from time to time: OAK #482 I -1906-126"1 v4 23 For the City: City of Rohnert Park 130 Avram Avenue Rohnert Park, California 94928 Attn: City Manager Telephone: (107) 588-2226 Facsimile: (107) 792-187 6 V/ith copies to Burke, Williams & Sorensen, LLP 1901 Hanison Street, Suite 900 Oakland, CA 94612 Attn: Michelle Marchetta Kenyon Telephone: (510) 27 3-87 80 Facsimile: (510) 839-9104 For the Tribe: Federated Indians of Graton Rancheria 6400 Redwood Drive, Suite 300 Rohnert Park, CA 94928 Attn: Chairperson Telephone: (7 0l) 566-2288 Fax: (707) 566-2291 With copies to Maier Pfeffer Kim & Geary, LLP 1440 Broadway, Suite 812 Oakland, CA 94612 Attn: John Maier, Esq. Telephone: (5 1 0) 835-3020 Fax: (510) 835-3040 14.5 GovnnNrNG LAw. This MOU shall be governed by, and construed in accordance with, the laws of the State of California. 14.6 CoNsrnucrroN oF AcnnnvrnNr. This MOU, including all recitals, together with all Exhibits, constitutes the entire agreement between the Parties and supersedes all prior negotiations, representations, drafts regarding this MOU, whether written or oral. In the event of a dispute between the Parties as to the language of this MOU or any amendment to this MOU or the construction or meaning of any term contained in this MOU or any amendment to this MOU, this MOU or any amendment to this MOU shall be deemed to have been drafted by OAK #4821-1906-1267 v4 24 the Parties in equal parts so that no presumptions or inferences concerning its terms or interpretation may be construed against, or in favor of, either Party based on the preparation or negotiation of this MOU or any amendment to this MOU. The headings contained in this MOU are for convenience of reference only and shall not effect this MOU's construction or interpretation. 14.7 BrNrtNc AcRnBvrBNr. This MOU is intended to be, and shall be construed to be, binding upon the Parties and all successors and successors-in-interest of each Party, including all ofhcers, agents and employees, and, in the case of the City, future City Councils, and, in the case of the Tribe, future Tribal Councils or General Councils. 14.8 ENVIRONMENTALREVIEW 14.8.1 Pursuant to the CEQA Guidelines (Cal. Code Regs., titl. 14, Section 15378, subd. (b)(a)), this MOU does not constitute a "project" for CEQA purposes because it involves the creation of a goveffrment funding mechanism or other government fiscal activities, which do not involve any commitment to any specific project which may result in a potentially significant physical impact on the environment. This MOU requires the Tribe to make mitigation payments for identified mitigation measures and programs; however, the City retains discretion to elect not to implement any or all of the specif,rc mitigation measures and programs identified in this MOU. Further this MOU does not obligate the City to undertake a specified mitigation program or construction project nor does it set a time for development. 14.8.2 The Parties acknowledge and agree that this MOU is not intended to be and does not constitute a development agreement for the purposes of Government Code section 65865. Nor does this MOU commit the City to implement any public improvement, or to take any action that may result in physical changes in the environment. 14.8.3 The Parties acknowledge that the EIS andlor Record of Decision evaluated the impacts of the Project and provided for the mitigation thereof. 14.8.4 The Parties acknowledge and agree that: (i) the Tribe is not a public agency subject to CEQA; (ii) the Project is not subject to CEQA or to City environmental review, design, land use or land development ordinances, plans, manuals or standards; (iii) the City does not have legal authority to deliberate o[, approve, disapprove, or otherwise exercise judgment regarding the Project; and (iv) the City is not deliberating on, approving, disapproving or otherwise exercising judgment regarding the Project by entering this MOU. 14.8.5 Government Code $ 12012.56(bX1XC) is a statutory CEQA exemption adopted with specific reference to this Project and the mitigation of its off- OAK #4821-1906-1267 v4 25 14.IO ITHE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK] site impacts. That Section states that in deference to tribal sovereignty, the execution of an intergovernmental agreement between a tribe and a county or city government negotiated pursuant to the express authority of, or as expressly referenced in, the Compact shall not be deemed a project for purposes of CEQA. This MOU is an intergovemmental agreement, made pursuant to Sections 4.4 and 1 1.8.7 of the Compact, between the Tribe and the City negotiated pursuant to the Compact and, therefore, execution of this MOU is not subject to CEQA. Subsections (aXl)-(a) and (c) of Section I1.8.7 of the Compact require the City and the Tribe to enter into enforceable intergovernmental agreements to timely mitigate, through compensation or other means, any significant effect of the Project on the environment, which were attributable in whole or in part to the Project. By expressly declaring intergovernmental agreements made under the Compact to not be a "project" for CEQA purposes, and by expressly acknowledging the need for an intergovernmental agreement to mitigate impacts in the Compact, the Legislature expressly exempted mitigation agreements such as this MOU from compliance with CEQA. 14.8.6 To the extent that the City is required to comply with CEQA with respect to any improvements, programs or activities identified in or related to this MOU, the City will comply with CEQA prior to approving or implementing such improvements, programs or activities. This MOU does not restrict the City's discretion to evaluate the impacts of such improvement, programs or activities, identify and adopt mitigation for such impacts, consider and approve alternatives designed to lessen such impacts, or deny approvals necessary for such improvement, programs or activities. 14.9 AmnNowrnNrs. This MOU may be modified or amended only by mutual and written agreement of the Parties. Rpvrnw By rHE DBp¡,ntunNT oF INrBRron. The Tribe shall submit this MOU to the United States Department of the Interior for either: (a) approval pursuant to 25 U.S.C. $ 81; or (b) a written response that this MOU does not require approval under 25 U.S.C. $ 81. The Tribe shall undertake reasonable efforts, in consultation with the City, to secure approval or written response. The City, at its sole discretion, has the right to withdraw its support for the MOU if it is not submitted to the Department of the Interior pursuant to this section within ten (10) days following the Effective Date. If the Department of Interior determines that portions of this MOU violate 25 U.S.C. $ 81 or are otherwise invalid, the severability provisions set forth in section 10 of this MOU shall govern. OAK #4821-1906-1267 v4 26 IN WITNESS WHEREOF. the Parties have executed this MOU as of the date first set forth above. CITY OF ROHNERT PARK Date 2013 APPROVED BY CITY ATTORNEY By: Name: Czohr^,,\ f,- Gnr.zo,\¿z- Its By: Marchetta Kenyon, Esq. Burke, V/illiams & Sorensen, LLP FEDERATED INDIANS OF GRATON RANCHERIA By: , Esq Pfeffer Kim & Geary, LLP _,2013 {llern"!r Date: +/n- _,2013 Greg Sarris Chairperson APPROVED BY LEGAL COUNSEL FOR THE TRIBE Date 20t3 By: J OAK #4821-1906-1267 v4 27 Ex h i b i t A Du e Da t e s fo r Ro h n e r t P a r k / G r a t o n Ra n c h e r i a M O U Pa y m e n t s Du e fr o m Tr i b e to Ci t y Other Payments 4.2.2 Tribe Charity or Organiza tion X X X X X X X X X X X X X X4.2.L Rohnert Park Foundation X X X X X X X X X X X X X X X X X X X X X X X X X X4.L Sc h o o l X X X X X X X X X X X X X X X X X X X X X X X X X X 4. 3 Co m m u n i t y (N e i g h b o r - ho o d & Ho u s i n g ) X X X X X X X X X X X X X X X X X X X X X X X X X X Gu a r a n t e e d Pa y m e n t s 3. 5 Pu b l i c Se r v i c e s X X X X X X X X X X X X X X X X X X X X X X X X X X 3. 4 Su p p l e - me n t a l X X X X X X X X X X X X X X X X X X X X X X X X X X 3. 3 Wa t e r - wa y X X X X X X X X X X X X X X X X X X X X X X X X X X 3. 2 Pr o b l e m Ga m b l i n g X X X X X X X X X X X X X X X X X X X X X X X X X X 3. 1 La w En f o r c e - me n t X X X X X X X X X X X X X X X X X X X X X X X X X X 2. 5 Mo b i l e Ho m e Pa r k 3 2. 4 Tr a f f i c lm p a c t s 2 2. 3 . 3 Ci t y Ve h i c l e s X X X X 2. 3 . 2 La d d e r Fi r e Tr u c k X 2. 3 . L Pu b l i c Sa f e t y Bu i l d i n g X X X X X X X X MO U S e c t i o n Qu a r t e r a 3r d Qt r 4t h Qt r 5t h Qt r 6t h Qt r 7t h Qt r 8t h Qt r 9t h Qt r 10 t h Qt r 1] - t h Qt r 12 t h Qt r 1- 3 t h Qt r 14 t h Qt r 15 t h Qt r 1- 6 t h Qt r 1- 7 t h Qt r 18 t h Qt r 19 t h Qt r 20 t h Qt r 21 s t Qt r 22 n d Qt r 23 r d Qt r 24 t h Qt r 25 t h Qt r 26 t h Qt r 27 t h Qt r 28 t h Qt r Du e Da t e l t- J u l 2 } t 4 7- O c t - 2 1 L 4 1- J a n - 2 0 1 5 1- A p r - 2 0 1 5 1- J u l - 2 0 1 5 1- O c t - 2 0 1 - 5 lJ a n - 2 0 1 6 t- A p r - 2 0 1 , 6 lJ u l - 2 0 1 6 1- O c t - 2 0 1 6 t- J a n - 2 0 I 7 L- A p r - 2 O I 7 1À u l 2 0 1 7 t- O c I - 2 0 ] - 7 1- J a n - 2 0 1 8 1- A p r - 2 0 1 8 lJ u l - 2 0 1 8 1- O c t - 2 0 1 8 L- J a n - 2 0 1 9 1- A p r - 2 0 1 9 lJ u l - 2 0 1 9 1- O c t - 2 0 1 9 1- J a n - 2 0 2 0 t- A p r - 2 0 2 0 t) u l 2 O 2 O t- O c l - 2 0 2 0 Page 1 Pa y m e n t s Du e fr o m Tr ¡ b e to C¡ t y Other Payments 4.2.2 Tribe Charity or Organiza tion X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X4.2.r Rohnert Park Foundation X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X 4. L Sc h o o l X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X 4. 3 Co m m u n i t y (N e i g h b o r - ho o d & Ho u s i n g ) X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X Gu a r a n t e e d Pa y m e n t s 3. 5 Pu b l i c Se r v i c e s X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X 3. 4 Su p p l e - me n t a l X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X 3. 3 Wa t e r - wa y X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X 3. 2 Pr o b l e m Ga m b l i n g X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X 3. r - La w En f o r c e - me n t X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X 2. 5 Mo b i l e Ho m e Pa rk 3 2. 4 Tr a f f i c lm p a c t s 2 2. 3 . 3 Ci t y Ve h i c l e s 2. 3 . 2 La d d e r Fi r e Tr u c k 2. 3 . 7 Pu b l i c Sa f e t y Bu i l d i n g MO U Se c t i o n Qu a rt e ra 29 t h Qt r 30 t h Qt r 31 s t Qt r 32 n d Qt r 33 r d Qt r 34 t h Qt r 35 t h Qt r 36 t h Qt r 37 t h Qt r 38 t h Qt r 39 t h Qt r 40 t h Qt r 4] - s t Qt r 42 n d Qt r 43 r d Qt r 44 t h Qt r 45 t h Qt r 46 t h Qt r 47 t h Qt r 48 t h Qt r 49 t h Qt r 50 t h Qt r 51 s t Qt r 52 n d Qt r 53 r d Qt r 54 t h Qt r 55 t h Qt r 56 t h Qt r 57 t h Qt r 58 t h Qt r Du e D a t e l ]' - J a n - 2 0 2 I 7- A p r - 2 0 2 I 1. - J u l 2 o 2 7 !- O c r - 2 0 2 L t- J a n - 2 0 2 2 L- A p r - 2 0 2 2 t- J u l - 2 0 2 2 L- 0 c l - 2 0 2 2 t) a n - 2 0 2 3 I- A p r - 2 0 2 3 I- J u l 2 O 2 3 L- O c t - 2 O 2 3 t- J a n - 2 0 2 4 t- A p r - 2 0 2 4 t- J u l 2 O 2 4 1- O c T - 2 0 2 4 t- J a n - 2 O 2 5 L- A p r - 2 Q 2 5 t- J u l - 2 0 2 5 1- O c t - 2 0 2 5 L- J a n - 2 0 2 6 1' - A p r - 2 0 2 6 tJ u l 2 0 2 6 t- O c T . - 2 0 2 6 t- J a n - 2 Q 2 7 t- A p r - 2 0 2 7 tl u l 2 O 2 7 L- 0 c t - 2 O 2 7 L- J a n - 2 0 2 8 L- A p r - 2 0 2 8 Page 2 Pa y m e n t s Du e fr o m Tr i b e to Ci t y No t e s : 1 A s s u m e d o p e n i n g d a t e so m e t i m e in Oc t o b e r , No v e m b e r or De c e m b e r of 2 0 1 3 . Du e da t e s ar e va l i d fo r an y o p e n i n g da t e in th i s pe r i o d 2 MO U pr o v i d e s th a t pa y m e n t is ma d e af t e r pa r t i e s ag r e e o n n e e d . 3 MO U pr o v i d e s th a t pa y m e n t is ma d e up o n re q u e s t af t e r t h e pa r t i e s ha v e a g r e e d on th e pr o j e c t . Other Payments 4.2.2 Tribe Charity or Organiza tion X X X X X X X X X X X X X X X X X X X X X X X X4.2.1 Rohnert Park Foundation X X X X X X X X X X X X X X X X X X X X X X X X4.L Sc h o o l X X X X X X X X X X X X X X X X X X X X X X X X 4. 3 Co m m u n i t y (N e i g h b o r - ho o d & Ho u s i n g ) X X X X X X X X X X X X X X X X X X X X X X X X Gu a r a n t e e d Pa y m e n t s 3. 5 Pu b l i c Se r v i c e s X X X X X X X X X X X X X X X X X X X X X X X X 3. 4 Su p p l e - me n t a l X X X X X X X X X X X X X X X X X X X X X X X X 3. 3 Wa t e r - wa y X X X X X X X X X X X X X X X X X X X X X X X X 3. 2 Pr o b l e m Ga m b l i n g X X X X X X X X X X X X X X X X X X X X X X X X 3. L La w En f o r c e - me n t X X X X X X X X X X X X X X X X X X X X X X X X 2. 5 Mo b i l e Ho m e Pa r k 3 2. 4 Tr a f f i c lm p a c t s 2 2. 3 . 3 Ci t y Ve h i c l e s 2. 3 . 2 La d d e r Fi r e Tr u c k 2. 3 . r Pu b l i c Sa f e t y Bu i l d i n g MO U Se c t i o n Qu a r t e r a 59 t h Qt r 60 t h Qt r 61 s t Qt r 62 n d Qt r 63 r d Qt r 64 t h Qt r 65 t h Qt r 66 t h Qt r 67 t h Qt r 68 t h Qt r 69 t h Qt r 70 t h Qt r 71 s t Qt r 72 n d Qt r 73 r d Qt r 74 t h Qt r 75 t h Qt r 76 t h Qt r 77 t h Qt r 78 t h Qt r 79 t h Qt r 80 t h Qt r 81 s t Qt r 82 n d Qt r Du e Da t e l L- J u 1 2 0 2 8 1- O c t - 2 0 2 8 ]' - J a n - 2 0 2 9 7- A p r - 2 0 2 9 7. J u 1 2 O 2 9 t- O c T - 2 O 2 9 lJ a n - 2 0 3 0 1- A p r - 2 0 3 0 1- J u l - 2 0 3 0 1- O c t - 2 0 3 0 ll a n - 2 0 3 1 I- A p r - 2 0 3 I lJ u l - 2 0 3 1 1- O c t - 2 0 3 1 L- J a n - 2 O 3 2 L- A p r - 2 0 3 2 L- J u l 2 O 3 2 I- O c T - 2 0 3 2 lJ a n - 2 0 3 3 1- A p r - 2 0 3 3 1- J u l - 2 0 3 3 1- O c t - 2 0 3 3 1- J a n - 2 0 3 4 1- A p r - 2 0 3 4 Page 3 April Prior Yea r 242.83 Exhibit B - SAMPLE Rohnert Park/Graton Rancheria MOU Annual Payment Schedule cPt April Current Adjustment Year3 Factor 250.1,7 1.0300 Fiscal Year: July 1 to June 30 CPI lndex Data:1'2 TotalAmount 5 2,636,994 5 2,636,994 5 2,636,994 S Notes: L CPl Adjustment is scheduled for implementation each July 1. Data from April to April will be used. 2 CPI Data is All Urban Consumers San Francisco-Oakland-San Jose Area, series lD CUURA422SA0. 3 CPI lndex Value of 250.11 is used for illustration. Actual value will be input each year when data is available. 4 Non-recurring payments are not subject to CPI Adjustment. 5 All Recurring Payments and Deductions are subject to CPI Adjustment each year. 6 Quarter is lan-Mar, AprJune, July-Sept, Oct-Dec numbered sequentially beginning with the first full quarter after gaming commences. Summary: State Gaming Agency shall deliver to Rohnert Park before t1ul20t4 a wire transfer in the amount of: S State Gaming Agency shall deliver to Rohnert Park before t-Ocr.-2014 a wire transfer in the amount of: 5 State Gaming Agency shall deliver to Rohnert Park before lJan-20L5 a wire transfer in the amount of: 5 State Gaming Agency shall deliver to Rohnert Park before 1-Apr-2015 a wire transfer in the amount of: S City of Rohnert Park Wire Transfer lnstructions:Exchange Bank, Santa Rosa, CA ABA 121101985 AlCO087O44O42 FBO City of Rohnert Park 2,636,994 2,636,994 2,636,994 2,636,994 2,636,994 MOU Section Due Date 7lul2114 t-Oct-2074 1-Jan-2015 1-Apr-2015 Qua rte rb 3rd Qtr 4th Qtr 5th Qtr 6th Qtr P c.) E tıo- ! c) C)PctI' to =(9 obo c'= f(J q) É. oz 2.3.1 Public Safetv Building 2.3.2 Ladder Fire Truck 2.3.3 Citv Vehicles 2.4 Traffic lmpacts 2.5 Mobile Home Park P o E (! o_ Þ.0 .C J(J CJ É. 3.1 Law Enforcement S rzs,zso 5 128,7s0 5 t28,7so S rzs,zso 3.2 Problem Gambling 5 sz,rsa 5 ¡z,rsa S 32,188 S ¡z,rse 3.3 Waterway 5 P,eß 5 1"2,87s 5 12,87s 5 n,eÆ 3.4 Supplemental S 1,287,s00 S 1,287,s00 S 1,287,500 s 1,287,s00 3.5 Public Services s 610,018 S oro,ors S oro,ora 5 oro,ors P arıECPqoà ô_ 4.1 School 5 257,soo S 2s7,soo S zsz,soo S 2s7,soo 4.2.7 Rohnert Park Foundation S zsz,soo S zsz,soo 5 2s7,s00 S 257,500 4.2.2 Tribe Charity 4.3 Neighborhood & Housing s 2s7,s00 s 2s7,s00 s 2s7,soo S zsz,soo Ded uctions 5.4 Advance Payments 5 (206,836)S (206,836)s (206,836)s (206,836)   ITEM NO. 6D 1   Meeting Date: May 23, 2017 Department: Public Works & Community Services Submitted By: John McArthur, Public Works & Community Services Director Prepared By: Angie Smith, Purchasing Agent Agenda Title: Authorize the City Manager to Execute the Professional Services Agreement for Water Quality Analytical Services with Alpha Analytical Laboratories Inc. for a not to exceed contract amount of $175,000 RECOMMENDED ACTION: Authorize the City Manager to Execute the Professional Services Agreement for Water Quality Analytical Services with Alpha Analytical Laboratories Inc. for a not to exceed contract amount of $175,000 BACKGROUND: The City is mandated to frequently sample and test for a wide variety of constituents in the potable water and storm water systems. The City does not have the capability to perform the required water chemistry analysis and has historically utilized an external professional laboratory services firm to perform this mandated service. The City’s current laboratory services agreement has expired and is contracting this service on a month to month basis. Due to the ongoing need for water laboratory analysis, a new agreement for laboratory services is needed. On February 15, 2017, staff prepared and issued a Request for Proposals (RFP) to seek qualified professional laboratory services. On March 1, 2017, proposals from three laboratory service firms were received. ANALYSIS: The RFP contains four categories for evaluating submittals including: 1) professional qualifications, 2) laboratory procedural testing methods, 3) site visits by City staff, and 4) fees. Staff performed site visits for all three proposals received. Upon evaluating the proposals, based upon the criteria in the RFP, staff determined that Alpha Analytical Laboratories Inc., (Alpha) is the most qualified firm to perform laboratory services for the City. Alpha has many years of experience performing similar services for neighboring cities and districts, has the most qualified staff, and submitted the lowest costs in their proposal OPTIONS CONSIDERED: Option 1: The proposed agreement is for three years with two possible one (1) year extensions. The annual estimated cost would be $55,000 and the total agreement cost over three years would not exceed $175,000. Entering into a long-term laboratory services professional Mission Statement “We Care for Our Residents by Working Together to Build a Better Community for Today and Tomorrow.” CITY OF ROHNERT PARK CITY COUNCIL AGENDA REPORT   ITEM NO. 6D 2   agreement provides needed continuity for mandatory testing programs that span multiple fiscal years. Staff recommend this option Option 2: A shorter term agreement could be used to fulfill the City’s laboratory services needs. However, this approach would be administratively burdensome and could create a gap in service which could risk violation of a mandate. Staff does not recommend this option. STRATEGIC PLAN ALIGNMENT: This action is consistent with the following Strategic Plan Goals: GOAL C: Ensure the effective delivery of public services. FISCAL IMPACT/FUNDING SOURCE: Sufficient Funding is included in the current Water, and Storm Water operating budgets. Funding for laboratory services will need to be included in future year’s operating budgets. Department Head Approval Date: 5-2-2017 (McArthur) Finance Director Approval Date: 5-4-2017 (Howze) City Attorney Approval Date: N/A City Manager Approval Date: 5-4-2017 (Jenkins) Attachments: 1. Alpha Analytical Laboratories Professional Services Agreement a. Exhibits A 1-3, B, C -1- 1126651v3 80078/0012 Revised: 10/08/10 CITY OF ROHNERT PARK 600 ENTERPRISE DRIVE ROHNERT PARK, CA 94928 PROFESSIONAL SERVICES AGREEMENT ANALYTICAL LABORATORY SERVICES THIS AGREEMENT, is entered into as of the 23rd day of May, 2017, by and between the City of Rohnert Park, hereinafter called "City", a California municipal corporation, and Alpha Analytical Laboratories, Inc., hereinafter called “Professional”. RECITALS WHEREAS, City desires to obtain Analytical Laboratory Services to meet all State and Federal regulations, and WHEREAS, Professional hereby represents to the City that Professional is skilled and able to provide such services described in Section 1 of this Agreement; and WHEREAS, City desires to retain Professional pursuant to this Agreement to provide the services described in Section 1 of this Agreement. AGREEMENT NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS: 1. Scope of Services. Subject to such policy direction and approvals as the City may determine from time to time, Professional shall perform the services set out in the “Scope of Services and Sampling Schedule” attached hereto as Exhibit A and Exhibit B. 2. Time of Performance. The services of Professional are to commence upon receipt of a written notice to proceed from City, but in no event prior to receiving a fully executed agreement from City and obtaining and delivering the required insurance coverage, and satisfactory evidence thereof, to City. Professional shall perform its services in accordance with the schedule set out in the “Scope of Services and Sampling Schedule” attached hereto as Exhibit A and Exhibit B. Any changes to the dates in this Section, Exhibit A or Exhibit B must be approved in writing by the City. 3. Compensation and Method of Payment. A. Compensation. The compensation to be paid to Professional, including both payment for professional services and reimbursable expenses, shall be at the rate and schedules attached hereto as Exhibit C. However, in no event shall the amount City pays Professional exceed one hundred seventy five thousand dollars ($175,000) for the three year term of the contract. Payment by City under this Agreement shall not be deemed a waiver of unsatisfactory work, even if such defects were known to the City at the time of payment. B. Timing of Payment. (1) Professional shall submit itemized monthly invoices for work performed. City shall make payment, in full, within thirty (30) days after approval of the invoice by City. (2) Payments due and payable to Professional for current services must be within the current budget and within an available, unexhausted and unencumbered appropriation of the City. In the event the City has not appropriated sufficient funds for payment of Professional services beyond the current fiscal year, this Agreement shall cover only those costs incurred up to the conclusion of the current fiscal year; payment for additional work is conditional upon future City appropriation. C. Changes in Compensation. Professional will not undertake any work that will incur costs in excess of the amount set forth in Section 3(A) without prior written amendment to this Agreement. D. Standard of Quality. City relies upon the professional ability of Professional as a material inducement to entering into this Agreement. All work performed by Professional under this Agreement shall be in accordance with all applicable legal requirements and shall meet the standard of quality ordinarily to be expected of competent professionals in Professional’s field of expertise. E. Taxes. Professional shall pay all taxes, assessments and premiums under the federal Social Security Act, any applicable unemployment insurance contributions, Workers Compensation insurance premiums, sales taxes, use taxes, personal property taxes, or other taxes or assessments now or hereafter in effect and payable by reason of or in connection with the services to be performed by Professional. F. No Overtime or Premium Pay. Professional shall receive no premium or enhanced pay for work normally understood as overtime, i.e., hours that exceed forty (40) hours per work week, or work performed during non-standard business hours, such as in the evenings or on weekends, unless specifically required by the applicable task order and authorized by City in writing. Professional shall not receive a premium or enhanced pay for work performed on a recognized holiday. Professional shall not receive paid time off for days not worked, whether it be in the form of sick leave, administrative leave, or for any other form of absence. G. Litigation Support. Professional agrees to testify at City’s request if litigation is brought against City in connection with Professional’s report. Unless the action is brought by Professional or is based upon Professional’s negligence, City will compensate Professional for the preparation and the testimony at Professional’s standard hourly rates, if requested by City and not part of the litigation brought by City against Professional. 4. Amendment to Scope of Work. City shall have the right to amend the Scope of Work within the Agreement by written notification to the Professional. In such event, the compensation and time of performance shall be subject to renegotiation upon written demand of either party to the Agreement. Failure of the Professional to secure City's written authorization for extra or changed work shall constitute a waiver of any and all right to adjustment in the contract price or time due, whether by way of compensation, restitution, quantum meruit, etc. for work done without the appropriate City authorization. 5. Duties of City. City shall provide all information requested by Professional that is reasonably necessary to performing the Scope of Work. City retains all rights of approval and discretion with respect to the projects and undertakings contemplated by this Agreement. 6. Ownership of Documents. A. The plans, specifications, estimates, programs, reports, models, and other material prepared by or on behalf of Professional under this Agreement including all drafts and working documents, and including electronic and paper forms (collectively the “Documents”), shall be and remain the property of the City, whether the Services are completed or not. Professional shall deliver all Documents to City, upon request at (1) the completion of the Services, (2) the date of termination of this Agreement for any reason, or (3) request by City in writing, or (4) payment of all monies due to Professional. B. The Documents may be used by City and its officers, elected officials, employees, agents, and volunteers, and assigns, in whole or in part, or in modified form, for all purposes City may deem advisable without further employment of or payment of any compensation to Professional. If City desires to modify Documents before using them, City shall obtain written consent from Professional for any such modification, and such consent shall not unreasonably be withheld. If City modifies Documents without obtaining written consent from Professional, Professional shall not be liable to City for any damages resulting from use of such modified Documents, provided that the Professional was not a proximate cause of such damages. C. Professional retains the copyright in and to the intellectual property depicted in the Documents subject to Professional’s limitations and City’s rights and licenses set forth in this Agreement. City’s ownership interest in the Documents includes the following single, exclusive license from Professional: Professional, for itself, its employees, heirs, successors and assigns, hereby grants (and if any subsequent grant is necessary, agrees to grant) to City an irrevocable, perpetual, royalty-free, fully paid, sole and exclusive license and right to use and exercise any and all of the copyrights or other intellectual property rights that Professional may author or create, alone or jointly with others, in or with respect to the Documents, including without limitation all analysis, reports, designs and graphic representations. City’s license shall include the right to sublicense, shall be for all purposes with respect to each right of copyright, and shall be without restriction. D. Professional shall include in all subcontracts and agreements with respect to the Services that Professional negotiates, language which is consistent with this Section 6. E. All reports, information, data, and exhibits prepared or assembled by Professional in connection with the performance of its Services pursuant to this Agreement are confidential until released by the City to the public, and the Professional shall not make any of these documents or information available to any individual or organization not employed by the Professional or the City without the written consent of the City before any such release. This provision shall not apply to information that (1) is already in the public domain, (2) was previously known by Professional, (3) Professional is required to provide by law, or (4) reasonably required by Professional to conduct its defense in a legal or similar proceeding, so long as Professional notifies City in writing before use of such information. 7. Employment of Other Professionals, Specialists or Experts. A. Professional will not employ or otherwise incur an obligation to pay other consultants, specialists or experts for services in connection with this Agreement without the prior written approval of the City. Any consultants, specialists or experts approved by City are listed in Exhibit D. B. Professional represents that it has, or will secure at its own expense, all personnel required in performing the Services. All of the Services required hereunder will be performed by the Professional or under Professional’s supervision, and all personnel engaged in the work shall be qualified to perform such services. C. Professional shall make every reasonable effort to maintain stability and continuity of Professional's Key Personnel assigned to perform the Services. Key Personnel for this contract are listed in Exhibit D. D. Professional shall provide City with a minimum twenty (20) days prior written notice of any changes in Professional’s Key Personnel, provided that Professional receives such notice, and shall not replace any Key Personnel with anyone to whom the City has a reasonable objection. E. Professional plans to retain the sub-consultants listed in Exhibit D, who will provide services as indicated in Exhibit D. F. Professional will not utilize sub-consultants other than those listed in Exhibit D without advance written notice to the City. Professional will not utilize a sub-consultant to whom the City has a reasonable objection. Sub-consultants providing professional services will provide professional liability insurance as required in Exhibit C unless the City waives this requirement, in writing. 8. Conflict of Interest. A. Professional understands that its professional responsibility is solely to City. Professional warrants that it presently has no interest, and will not acquire any direct or indirect interest, that would conflict with its performance of this Agreement. Professional shall not knowingly, and shall take reasonable steps to ensure that it does not, employ a person having such an interest in the performance of this Agreement. If Professional discovers that it has employed a person with a direct or indirect interest that would conflict with its performance of this Agreement, Professional shall promptly disclose the relationship to the City and take such action as the City may direct to remedy the conflict. B. Professional (including principals, associates and professional employees) covenants and represents that it does not now have any investment or interest in real property and shall not acquire any interest, direct or indirect, in the area covered by this contract or any other source of income, interest in real property or investment which would be affected in any manner or degree by the performance of Professional's Services hereunder. Professional further covenants and represents that in the performance of its duties hereunder no person having any such interest shall perform any services under this Agreement. C. Professional is not a designated employee within the meaning of the Political Reform Act because Professional: (1) Will conduct research and arrive at conclusions with respect to his/her rendition of information, advice, recommendation or counsel independent of the control and direction of the City or of any City official other than normal contract monitoring; and (2) Possesses no authority with respect to any City decision beyond the rendition of information, advice, recommendation or counsel (FPPC Reg. 18700(a) (2)). 9. Interest of Members and Employees of City. No member of the City and no other officer, elected official, employee, agent or volunteer of the City who exercises any functions or responsibilities in connection with the carrying out of any project to which this Agreement pertains, shall have any personal interest, direct or indirect, in this Agreement, nor shall any such person participate in any decision relating to this Agreement which affects its personal interests or the interest of any corporation, partnership or association in which he/she is directly or indirectly interested. 10. Liability of Members and Employees of City. No member of the City and no other officer, elected official, employee, agent or volunteer of the City shall be personally liable to Professional or otherwise in the event of any default or breach of the City, or for any amount which may become due to Professional or any successor in interest, or for any obligations directly or indirectly incurred under the terms of this Agreement. 11. Indemnity. A. To the fullest extent permitted by law (including, without limitation, California Civil Code Sections 2782 and 2782.8), Professional shall defend (with legal counsel reasonably acceptable to City), indemnify, and hold harmless City and its officers, elected officials, employees, agents, and volunteers (collectively "Indemnitees") from and against any and all claims, loss, cost, damage, injury (including, without limitation, injury to or death of an employee of Professional or its sub-consultants), expense and liability of every kind, nature and description (including, without limitation, fines, penalties, incidental and consequential damages, reasonable court costs and reasonable attorneys' fees, litigation expenses and fees of expert consultants or expert witnesses incurred in connection therewith, and costs of investigation), that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of Professional, any sub- consultant, anyone directly or indirectly employed by them, or anyone that they control (collectively "Liabilities"). Such negligence, recklessness, or willful misconduct includes without limitation the failure of Professional to disclose information known by Professional to be material to performing the Services. Such obligations to defend, hold harmless and indemnify any Indemnitee shall not apply to the extent that such Liabilities are caused by the negligence, active negligence, or willful misconduct of such Indemnitee. Notwithstanding any provision of this Agreement to the contrary, the extent of Professional's obligation to defend, indemnify, and hold harmless shall be governed by the provisions of California Civil Code Section 2782.8. B. Neither termination of this Agreement nor completion of the Services shall release Professional from its obligations under this Section 11, as long as the event giving rise to the claim, loss, cost, damage, injury, expense or liability occurred prior to the effective date of any such termination or completion. C. Professional agrees to obtain executed indemnity agreements with provisions identical to those set forth in this section from each and every sub-consultant or any other person or entity involved by, for, with or on behalf of Professional in the performance of this Agreement. If Professional fails to obtain such indemnity obligations from others as required, Professional shall be fully responsible for all obligations under this Section. City's failure to monitor compliance with this requirement imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. The obligation to indemnify and defend City as set forth herein is binding on the successors, assigns or heirs of Professional and shall survive the termination of this Agreement or this section. D. Professional's compliance with the insurance requirements does not relieve Professional from the obligations described in this Section 11, which shall apply whether or not such insurance policies are applicable to a claim and/or damages. 12. Professional Not an Agent of City. Professional, its officers, employees and agents shall not have any power to bind or commit the City to any decision. 13. Independent Contractor. It is understood that Professional, in the performance of the work and services agreed to be performed by Professional, shall act as and be an independent contractor as defined in Labor Code 3353 and not an agent or employee of City; and as an independent contractor, Professional shall obtain no rights to retirement benefits or other benefits which accrue to City’s employees, and Professional hereby expressly waives any claim it may have to any such rights. 14. Compliance with Laws. A. General. Professional shall (and shall cause its agents and subcontractors), at its sole cost and expense, comply with all applicable federal, state and local laws, codes, ordinances and regulations now in force or which may hereafter be in force during the term of this agreement. Except as otherwise allowed by City in its sole discretion, Professional and all sub- consultants shall have acquired, at their expense, a business license from City in accordance with Chapter 5.04 of the Rohnert Park Municipal Code prior to City's issuance of an authorization to proceed with the Services. Such license(s) must be kept valid throughout the term of this Agreement. Any corrections to Professional's reports or other Documents (as defined in Section 6) that become necessary as a result of Professional's failure to comply with these requirements shall be made at the Professional's expense. B. Updates. Should Professional become aware that the requirements referenced in subparagraph (A) above change after the date of a report or other Document is prepared, Professional shall be responsible for notifying City of such change in requirements. Professional will bring the Documents into conformance with the newly issued requirements at the written direction of City. Professional’s costs for providing services pursuant to this paragraph shall be submitted to City as Additional Services. C. Licenses and Permits. Professional represents that it has the skills, expertise, licenses and permits necessary to perform the Services. Professional shall perform all such Services in the manner and according to the standards observed by a competent practitioner of the same profession in which Professional is engaged. All products of whatsoever nature which Professional delivers to City pursuant to this Agreement shall conform to the standards of quality normally observed by a person practicing in Professional’s profession. Permits and/or licenses shall be obtained and maintained by Professional without additional compensation throughout the term of this Agreement. D. Documents Stamped. Professional shall have documents created as part of the Services to be performed under this Agreement stamped by registered professionals for the disciplines covered by Professional's Documents as required by Section 6735 of the Business and Professionals Code or any other applicable law or regulation. Professional shall not be required to stamp any documents not prepared under its direct supervision. The City will not be charged an additional fee to have such documents stamped. E. Workers' Compensation. Professional certifies that it is aware of the provisions of the California Labor Code which require every employee to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that Code, and Professional certifies that it will comply with such provisions before commencing performance of this Agreement. F. Prevailing Wage. Professional and Professional's sub-consultants, shall, to the extent required by the California Labor Code, pay not less than the latest prevailing wage rates to workers and professionals as determined by the Director of Industrial Relations of the State of California pursuant to California Labor Code, Part 7, Chapter 1, Article 2. Copies of the applicable wage determination are on file at City Clerk's office. This provision to comply with prevailing wage laws takes precedence over the provisions of paragraph 3.E. G. Injury and Illness Prevention Program. Professional certifies that it is aware of and has complied with the provisions of California Labor Code Section 6401.7, which requires every employer to adopt a written injury and illness prevention program. H. City Not Responsible. City is not responsible or liable for Professional's failure to comply with any and all of the requirements set forth in this Agreement. 15. Nonexclusive Agreement. Professional understands that this is not an exclusive Agreement and that City shall have the right to negotiate with and enter into contracts with others providing the same or similar services as those provided by Professional as the City desires. 16. Confidential Information. All data, documents, discussions or other information developed or received by or for Professional in performance of this Agreement are confidential and not to be disclosed to any person except as authorized by City, as required by law, or as otherwise allowed by this Agreement. 17. Insurance. Professional shall provide insurance in accordance with the requirements of Exhibit D. 18. Assignment Prohibited. Professional shall not assign any of its rights nor transfer any of its obligations under this Agreement without the prior written consent of City and any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. 19. Termination. A. If Professional at any time refuses or neglects to prosecute its Services in a timely fashion or in accordance with the schedule, or is adjudicated a bankrupt, or commits any act of insolvency, or makes an assignment for the benefit of creditors without City's consent, or fails to make prompt payment to persons furnishing labor, equipment, materials or services, or fails in any respect to properly and diligently prosecute its Services, or otherwise fails to perform fully any and all of the agreements herein contained, Professional shall be in default. B. If Professional fails to cure the default within seven (7) days after written notice thereof, City may, at its sole option, take possession of any Documents or other materials (in paper and electronic form) prepared or used by Professional and (1) provide any such work, labor, materials or services as may be necessary to overcome the default and deduct the cost thereof from any money then due or thereafter to become due to Professional under this Agreement; and/or (2) terminate Professional's right to proceed with this Agreement. C. In the event City elects to terminate, City shall have the right to immediate possession of all Documents and work in progress prepared by Professional, whether located at Professional's place of business, or at the offices of a sub-consultant, and may employ any other person or persons to finish the Services and provide the materials therefor. In case of such default termination, Professional shall not be entitled to receive any further payment under this Agreement until the Services are completely finished. D. In addition to the foregoing right to terminate for default, City reserves the absolute right to terminate this Agreement without cause, upon 72-hours' written notice to Professional. In the event of termination without cause, Professional shall be entitled to payment in an amount not to exceed the Not-To-Exceed Amount which shall be calculated as follows: (1) Payment for Services then satisfactorily completed and accepted by City, plus (2) Payment for Additional Services satisfactorily completed and accepted by City, plus (3) Reimbursable Expenses actually incurred by Professional, as approved by City. The amount of any payment made to Professional prior to the date of termination of this Agreement shall be deducted from the amounts described in (1), (2) and (3) above. Professional shall not be entitled to any claim or lien against City for any additional compensation or damages in the event of such termination and payment. In addition, the City's right to withhold funds under Section 19.C. shall be applicable in the event of a termination for convenience. E. If this Agreement is terminated by City for default and it is later determined that the default termination was wrongful, such termination automatically shall be converted to and treated as a Termination for Convenience under this Section 19 and Professional shall be entitled to receive only the amounts payable under Section 19.D. 20. Suspension. The City shall have the authority to suspend this Agreement and the services contemplated herein, wholly or in part, for such period as he/she deems necessary due to unfavorable conditions or to the failure on the part of the Professional to perform any provision of this Agreement. Professional will be paid for satisfactory Services performed through the date of temporary suspension. In the event that Professional's services hereunder are delayed for a period in excess of six (6) months due to causes beyond Professional's reasonable control, Professional's compensation shall be subject to renegotiation. 21. Entire Agreement and Amendment. This Agreement constitutes the complete and exclusive statement of the agreement between City and Professional and supersedes any previous agreements, whether verbal or written, concerning the same subject matter. This Agreement may only be amended or extended from time to time by written agreement of the parties hereto. 22. Interpretation. This Agreement shall be interpreted as though it was a product of a joint drafting effort and no provisions shall be interpreted against a party on the ground that said party was solely or primarily responsible for drafting the language to be interpreted. 23. Litigation Costs. If either party becomes involved in litigation arising out of this Agreement or the performance thereof, the court in such litigation shall award reasonable costs and expenses, including attorneys’ fees, to the prevailing party. In awarding attorneys’ fees, the court will not be bound by any court fee schedule, but shall, if it is in the interest of justice to do so, award the full amount of costs, expenses, and attorneys’ fees paid or incurred in good faith. 24. Time of the Essence. Time is of the essence of this Agreement. 25. Written Notification. Any notice, demand, request, consent, approval or communication that either party desires or is required to give to the other party shall be in writing and either served personally or sent by prepaid, first class mail. Any such notice, demand, etc. shall be addressed to the other party at the address set forth herein below. Either party may change its address by notifying the other party of the change of address. Notice shall be deemed communicated within 48 hours from the time of mailing if mailed as provided in this section. If to City: City Manager City of Rohnert Park - City Hall 130 Avram Avenue Rohnert Park, CA 94928 If to Professional: Alpha Analytical Laboratories, Inc. 208 Mason Street Ukiah, CA 95482 26. Professional’s Books and Records. A. Professional shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services, or expenditures and disbursements charged to City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Professional. B. Professional shall maintain all documents and records which demonstrate performance under this Agreement for a minimum period of three (3) years, or for any longer period required by law, from the date of termination or completion of this Agreement. C. Any records or documents required to be maintained pursuant to this Agreement shall be made available for inspection or audit, at any time during regular business hours, upon written request by the City Attorney, City Auditor, City Manager, or a designated representative of any of these officers. Copies of such documents shall be provided to City for inspection when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records shall be available at Professional’s address indicated for receipt of notices in this Agreement. D. City may, by written request by any of the above-named officers, require that custody of the records be given to City and that the records and documents be maintained in the City Manager’s office. Access to such records and documents shall be granted to any party authorized by Professional, Professional’s representatives, or Professional’s successor-in-interest. E. Pursuant to California Government Code Section 10527, the parties to this Agreement shall be subject to the examination and audit of representative of the Auditor General of the State of California for a period of three (3) years after final payment under the Agreement. The examination and audit shall be confined to those matters connected with the performance of this Agreement including, but not limited to, the cost of administering the Agreement. 27. Equal Employment Opportunity. Professional is an equal opportunity employer and agrees to comply with all applicable state and federal regulations governing equal employment opportunity. Professional will not discriminate against any employee or applicant for employment because of race, age, sex, creed, color, sexual orientation, marital status or national origin. Professional will take affirmative action to ensure that applicants are treated during such employment without regard to race, age, sex, creed, color, sexual orientation, marital status or national origin. Such action shall include, but shall not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; lay-offs or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Professional further agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause. 28. Unauthorized Aliens. Professional hereby promises and agrees to comply with all the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. § 1101, et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Professional so employ such unauthorized aliens for performance of work and/or services covered by this Agreement, and should any liability or sanctions be imposed against City for such use of unauthorized aliens, Professional hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys’ fees, incurred by City. 29. Section Headings. The headings of the several sections, and any table of contents appended hereto, shall be solely for convenience of reference and shall not affect the meaning, construction or effect hereof. 30. City Not Obligated to Third Parties. City shall not be obligated or liable for payment hereunder to any party other than the Professional. 31. Remedies Not Exclusive. No remedy herein conferred upon or reserved to City is intended to be exclusive of any other remedy or remedies, and each and every such remedy, to the extent permitted by law, shall be cumulative and in addition to any other remedy given hereunder or now or hereafter existing at law or in equity or otherwise. 32. Severability. If any one or more of the provisions contained herein shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such provision or provisions shall be deemed severable from the remaining provisions hereof, and such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein. 33. No Waiver of Default. No delay or omission of City to exercise any right or power arising upon the occurrence of any event of default shall impair any such right or power or shall be construed to be a waiver of any such default of an acquiescence therein; and every power and remedy given by this Agreement to City shall be exercised from time to time and as often as may be deemed expedient in the sole discretion of City. 34. Successors and Assigns. All representations, covenants and warranties set forth in this Agreement, by or on behalf of, or for the benefit of any or all of the parties hereto, shall be binding upon and inure to the benefit of such party, its successors and assigns. 35. Exhibits. The following exhibits are attached to this Agreement and incorporated herein by this reference: A. Exhibit A (1-3): Scope of Services and Sampling Schedule B. Exhibit B: Scope of Services and Sampling Schedule C. Exhibit C: Compensation Rates D. Exhibit D: Insurance 36. Execution. This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least one copy hereof shall have been signed by both parties hereto. In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart. 37. News Releases/Interviews. All Professional and sub-consultant news releases, media interviews, testimony at hearings and public comment shall be prohibited unless expressly authorized by the City. 38. Venue. In the event that suit shall be brought by either party hereunder, the parties agree that trial of such action shall be held exclusively in a state court in the County of Sonoma, California. 39. Authority. All parties to this Agreement warrant and represent that they have the power and authority to enter into this Agreement in the names, titles, and capacities herein stated and on behalf of any entities, persons, or firms represented or purported to be represented by such entity (ies), person(s), or firm(s) and that all formal requirements necessary or required by any state and/or federal law in order to enter into this Agreement have been fully complied with. Furthermore, by entering into this Agreement, Professional hereby warrants that it shall not have breached the terms or conditions of any other contract or agreement to which Professional is obligated, which breach would have a material effect hereon. CITY OF ROHNERT PARK PROFESSIONAL By: __________________________________ Darrin Jenkins, City Manager By: Title: Date: Date: Per Minute Order Approved by the Rohnert Park City Council at its meeting on May 23, 2017. PROFESSIONAL By: Title: Date: ATTEST: By: __________________________________ City Clerk EXHIBIT A (1-3) SCOPE OF SERVICES / SAMPLING SCHEDULE [To be inserted] EXHIBIT B SCOPE OF SERVICES / NPDED MS4 RP [To be inserted] EXHIBIT C COMPENSATION RATES [To be inserted] EXHIBIT D INSURANCE REQUIREMENTS TO AGREEMENT FOR PROFESSIONAL SERVICES ANALYTICAL LABORATORY SERVICES Professional shall, at all times it is performing services under this Agreement, provide and maintain insurance in the following types and with limits in conformance with the requirements set forth below. Professional will use existing coverage to comply with these requirements. If that existing coverage does not meet the requirements set forth here, Professional agrees to amend, supplement or endorse the existing coverage to do so. Professional acknowledges that the insurance coverage and policy limits set forth in this section constitute the minimum amount of coverage required. Any insurance proceeds available to Professional in excess of the limits and coverage required in this agreement and that is applicable to a given loss will be available to City. 1. Commercial General Liability Insurance, occurrence form, using Insurance Services Office ("ISO") "Commercial General Liability" policy form CG 00 01 or an approved equivalent. Defense costs must be paid in addition to limits. There shall be no cross liability exclusion for claims or suits by one insured against another. Limits are subject to review, but in no event shall be less than $2,000,000 (Two Million Dollars) each occurrence; 2. Business Auto Coverage on ISO Business Automobile Coverage form CA 00 01 including symbol 1 (Any Auto) or an approved equivalent. Limits are subject to review, but in no event shall be less than $2,000,000 (Two Million Dollars) each occurrence. If Professional or its employees will use personal autos in any way in connection with performance of the Services, Professional shall provide evidence of personal auto liability coverage for each such person. 3. Workers Compensation on a state-approved policy form providing statutory benefits as required by law with employers liability insurance, with minimum limits of $1,000,000 (One Million Dollars) per occurrence. 4. Excess or Umbrella Liability Insurance (Over Primary) if used to meet limit requirements shall provide coverage at least as broad as specified for the underlying coverages. Any such coverage provided under an umbrella liability policy shall include a drop down provision providing primary coverage above a maximum self-insured retention for liability not covered by primary but covered by the umbrella. Coverage shall be provided on a "pay on behalf of" basis, with defense costs payable in addition to policy limits. Policy shall contain a provision obligating insurer at the time insured's liability is determined, not requiring actual payment by insured first. There shall be no cross-liability exclusion precluding coverage for claims or suits by one insured against another. Coverage shall be applicable to City for injury to employees of Professional, sub- consultant or others involved in performance of the Services. The scope of coverage provided is subject to approval of City following receipt of proof of insurance as required herein. Limits are subject to review but in no event less than $2,000,000 (Two Million Dollars) per occurrence. 5. Professional Liability or Errors and Omissions Insurance as appropriate shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Professional and "Covered Professional Services" as designated in the policy must include the type of work performed under this Agreement. The policy limit shall be no less than $2,000,000 (Two Million Dollars) per claim and in the aggregate. 6. Insurance procured pursuant to these requirements shall be written by insurers that are authorized to transact the relevant type of insurance business in the State of California and with an A.M. Best rating of A- or better and a minimum financial size VII. 7. General conditions pertaining to provision of insurance coverage by Professional. Professional and City agree to the following with respect to insurance provided by Professional: A. Professional agrees to have its insurer endorse the third party general liability coverage required herein to include as additional insureds the City, its officers, elected officials, employees, agents, and volunteers, using standard ISO endorsement No. CG 2010 with an edition prior to 1992, or an equivalent. Professional also agrees to require all contractors, and subcontractors to do likewise. B. No liability insurance coverage provided to comply with this Agreement, except the Business Auto Coverage policy, shall prohibit Professional, or Professional's employees, or agents, from waiving the right of subrogation prior to a loss. Professional agrees to waive subrogation rights against City regardless of the applicability of any insurance proceeds, and to require all contractors and subcontractors to do likewise. C. All insurance coverage and limits provided by Professional and available or applicable to this Agreement are intended to apply to the full extent of the policies. Nothing contained in this Agreement or any other agreement relating to the City or its operations limits the application of such insurance coverage. D. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing. E. No liability policy shall contain any provision or definition that would serve to eliminate so-called "third party action over" claims, including any exclusion for bodily injury to an employee of the insured or of any contractor or subcontractor. F. All coverage types and limits required are subject to approval, modification and additional requirements by the City, as the need arises, and City shall be responsible for the cost of any additional insurance required. Professional shall not make any reductions in scope of coverage (e.g. elimination of contractual liability or reduction of discovery period) that may affect City's protection without City's prior written consent. G. Proof of compliance with these insurance requirements, consisting of certificates of insurance evidencing all of the coverages required and an additional insured endorsement to Professional's general liability policy, shall be delivered to City at or prior to the execution of this Agreement. In the event such proof of any insurance is not delivered as required, or in the event such insurance is canceled at any time and no replacement coverage is provided, City may terminate this agreement in accordance with Section 19 of the Agreement. H. Certificate(s) are to reflect that the insurer will provide 30 day notice to City of any cancellation of coverage. Professional agrees to require its insurer to modify such certificates to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, or that any party will "endeavor" (as opposed to being required) to comply with the requirements of the certificate. I. It is acknowledged by the parties of this agreement that all insurance coverage required to be provided by Professional or any subcontractor, is intended to apply first and on a primary, noncontributing basis in relation to any other insurance or self-insurance available to City. J. Professional agrees to ensure that sub-consultant, and any other party involved with the Services who is brought onto or involved in the Services by Professional, provide the same minimum insurance coverage required of Professional; provided, however that only sub- consultant performing professional services will be required to provide professional liability insurance. Professional agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Professional agrees that upon request, all agreements with subcontractors and others engaged in the Services will be submitted to City for review. K. Professional agrees not to self-insure or to use any self-insured retentions or deductibles on any portion of the insurance required herein and further agrees that it will not allow any contractor, subcontractor, architect, consultant or other entity or person in any way involved in the performance of work on the Services contemplated by this agreement to self-insure its obligations to City. If Professional's existing coverage includes a deductible or self-insured retention, the deductible or self-insured retention must be declared to the City. At that time the City shall review options with the Professional, which may include reduction or elimination of the deductible or self-insured retention, substitution of other coverage, or other solutions. L. The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Professional ninety (90) days advance written notice of such change. If such change results in additional cost to the Professional, and the City requires Professional to obtain the additional coverage, the City will pay Professional the additional cost of the insurance. M. For purposes of applying insurance coverage only, this Agreement will be deemed to have been executed immediately upon any party hereto taking any steps that can be deemed to be in furtherance of or towards performance of this Agreement. N. Professional acknowledges and agrees that any actual or alleged failure on the part of City to inform Professional of non-compliance with any insurance requirement in no way imposes any additional obligations on City nor does it waive any rights hereunder in this or any other regard. O. Professional will endeavor to renew the required coverages for a minimum of three years following completion of the Services or termination of this agreement and, if Professional in unable to do so, Professional will notify City at least thirty days prior to the cancellation or expiration of the policy or policies. P. Professional shall provide proof that policies of insurance required herein expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. A coverage binder or letter from Professional's insurance agent to this effect is acceptable. A certificate of insurance and/or additional insured endorsement as required in these specifications applicable to the renewing or new coverage must be provided to City within five days of the expiration of the coverages. Q. The provisions of any workers' compensation or similar act will not limit the obligations of Professional under this agreement. Professional expressly agrees that any statutory immunity defenses under such laws do not apply with respect to City, its officers, elected officials, employees, agents, and volunteers. R. Requirements of specific coverage features or limits contained in this section are not intended as limitations on coverage, limits or other requirements nor as a waiver of any coverage normally provided by any given policy. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue, and is not intended by any party or insured to be limiting or all-inclusive. S. These insurance requirements are intended to be separate and distinct from any other provision in this agreement and are intended by the parties here to be interpreted as such. T. The requirements in this Section supersede all other sections and provisions of this Agreement to the extent that any other section or provision conflicts with or impairs the provisions of this Section. U. Professional agrees to be responsible for ensuring that no contract entered into by Professional in connection with the Services authorizes, or purports to authorize, any third party to charge City an amount in excess of the fee set forth in the agreement on account of insurance coverage required by this agreement. Any such provisions are to be deleted with reference to City. It is not the intent of City to reimburse any third party for the cost of complying with these requirements. There shall be no recourse against City for payment of premiums or other amounts with respect thereto. V. Professional agrees to provide immediate notice to City of any claim or loss against Professional arising out of the work performed under this agreement. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. Di s t r i b u t i o n G e n M i n e r a l L e a d Ty p e o f Sy s t e m N i t r a t e G e n P h y s i c a l N i t r i t e S O C ' s & V O C ' s Quarterly UCMR 4 Sa m p l e Ba c t e r i o l o g i c a l I n o r g a n i c C h e m i c a l ( C o m p o s i t e ) C o p p e r in c l u d e s M T B E Samples An n u a l l y By W e l l G r o u p B y W e l l G r o u p B y W e l l G r o u p B y W e l l G r o u p Every Fr e q u e n c y 12 / w e e k Ma r c h 12 m o n t h s 3 6 m o n t h s 1 2 m o n t h s 1 2 m o n t h s 3 6 m o n t h s 1 2 m o n t h s Quarter 3rd Qtr 20 1 7 J a n 6 0 S a m p l e s Fe b 4 8 S a m p l e s Ma r 4 8 S a m p l e s Ap r 4 8 S a m p l e s Ma y 6 0 S a m p l e s Well 6 - Arsenic Ju n 4 8 S a m p l e s Well 41 - Iron/ Ju l 4 8 S a m p l e s Arsenic Au g 6 0 S a m p l e s A l l W e l l s W e l l G r o u p C W e l l G r o u p C W e l l G r o u p C W e l l G r o u p C W e l l 3 4 a n d 4 0 Se p 4 8 S a m p l e s 3 r d Q t r 3 r d Q t r 3 r d Q t r 3 r d Q t r 3 r d Q t r N i t r a t e Oc t 6 0 S a m p l e s No v 4 8 S a m p l e s De c 4 8 S a m p l e s 20 1 8 J a n 6 0 S a m p l e s Fe b 4 8 S a m p l e s Ma r 4 8 S a m p l e s Ap r 4 8 S a m p l e s Ma y 6 0 S a m p l e s Well 6 - Arsenic Ju n 4 8 S a m p l e s Well 41 - Iron/ Ju l 6 0 S a m p l e s Arsenic Au g 4 8 S a m p l e s A l l W e l l s W e l l G r o u p A W e l l G r o u p A W e l l G r o u p A W e l l G r o u p A W e l l 3 4 a n d 4 0 U c m r 4 Se p 4 8 S a m p l e s 3 r d Q t r 3 r d Q t r 3 r d Q t r 3 r d Q t r 3 r d Q t r N i t r a t e s a m p l i n g e v e n t Oc t 6 0 S a m p l e s No v 4 8 S a m p l e s De c 4 8 S a m p l e s 20 1 9 J a n 6 0 S a m p l e s Fe b 4 8 S a m p l e s Ma r 4 8 S a m p l e s Ap r 6 0 S a m p l e s Ma y 4 8 S a m p l e s Well 6 - Arsenic Ju n 4 8 S a m p l e s Well 41 - Iron/ Ju l 6 0 S a m p l e s Arsenic Au g 4 8 S a m p l e s A l l W e l l s W e l l G r o u p B W e l l G r o u p B W e l l G r o u p B V a r i o u s s i t e s W e l l G r o u p B W e l l 3 4 a n d 4 0 U c m r 4 Se p 4 8 S a m p l e s 3 r d Q t r 3 r d Q t r 3 r d Q t r 3 r d Q t r 3 0 s a m p l e s 3 r d Q t r N i t r a t e s a m p l i n g e v e n t Oc t 6 0 S a m p l e s No v 4 8 S a m p l e s De c 6 0 S a m p l e s SO C t o i n c l u d e : si l v e x , h e p t a c h l o r , he p t a c h l o r e p o x i d e , li n d a n e , & me t h o x y c h l o r ( T e s t Me t h o d 5 0 5 ) Fr e q : E v e r y 9 y r s 85 1 3 L i m a n 60 3 M a r t i n 85 1 3 L i m a n 60 3 M a r t i n 85 1 3 L i m a n 60 3 M a r t i n EX H I B I T A - 1 SO C t o i n c l u d e : si l v e x , h e p t a c h l o r , he p t a c h l o r e p o x i d e , li n d a n e , & me t h o x y c h l o r ( T e s t Me t h o d 5 0 5 ) Fr e q : E v e r y 9 y r s Tr i h a l o m e t h a n e & H A A 5 SO C t o i n c l u d e : si l v e x , h e p t a c h l o r , he p t a c h l o r e p o x i d e , li n d a n e , & me t h o x y c h l o r ( T e s t Me t h o d 5 0 5 ) Fr e q : E v e r y 9 y r s Di s t r i b u t i o n G e n M i n e r a l L e a d Ty p e o f Sy s t e m N i t r a t e G e n P h y s i c a l N i t r i t e S O C ' s & V O C ' s Quarterly UCMR 4 Sa m p l e Ba c t e r i o l o g i c a l I n o r g a n i c C h e m i c a l ( C o m p o s i t e ) C o p p e r in c l u d e s M T B E Samples An n u a l l y By W e l l G r o u p B y W e l l G r o u p B y W e l l G r o u p B y W e l l G r o u p Every Fr e q u e n c y 12 / w e e k Ma r c h 12 m o n t h s 3 6 m o n t h s 1 2 m o n t h s 1 2 m o n t h s 3 6 m o n t h s 1 2 m o n t h s Quarter 3rd Qtr 20 2 0 J a n 4 8 S a m p l e s Fe b 4 8 S a m p l e s Ma r 6 0 S a m p l e s Ap r 4 8 S a m p l e s Ma y 4 8 S a m p l e s Well 6 - Arsenic Ju n 6 0 S a m p l e s Well 41 - Iron/ Ju l 4 8 S a m p l e s Arsenic Au g 4 8 S a m p l e s A l l W e l l s W e l l G r o u p C W e l l G r o u p C W e l l G r o u p C W e l l G r o u p C W e l l 3 4 a n d 4 0 U c m r 4 Se p 6 0 S a m p l e s 3 r d Q t r 3 r d Q t r 3 r d Q t r 3 r d Q t r 3 r d Q t r N i t r a t e s a m p l i n g e v e n t Oc t 4 8 S a m p l e s No v 4 8 S a m p l e s De c 6 0 S a m p l e s 20 2 1 J a n 4 8 S a m p l e s Fe b 4 8 S a m p l e s Ma r 6 0 S a m p l e s Ap r 4 8 S a m p l e s Ma y 4 8 S a m p l e s Well 6 - Arsenic Ju n 6 0 S a m p l e s Well 41 - Iron/ Ju l 4 8 S a m p l e s Arsenic Au g 6 0 S a m p l e s A l l W e l l s W e l l G r o u p A W e l l G r o u p A W e l l G r o u p A W e l l G r o u p A W e l l 3 4 a n d 4 0 Se p 4 8 S a m p l e s 3 r d Q t r 3 r d Q t r 3 r d Q t r 3 r d Q t r 3 r d Q t r N i t r a t e Oc t 4 8 S a m p l e s No v 6 0 S a m p l e s De c 4 8 S a m p l e s 20 2 2 J a n 4 8 S a m p l e s Fe b 4 8 S a m p l e s Ma r 6 0 S a m p l e s Ap r 4 8 S a m p l e s Ma y 6 0 S a m p l e s Well 6 - Arsenic Ju n 4 8 S a m p l e s Well 41 - Iron/ Ju l 4 8 S a m p l e s Arsenic Au g 6 0 S a m p l e s A l l W e l l s W e l l G r o u p B W e l l G r o u p B W e l l G r o u p B V a r i o u s s i t e s W e l l G r o u p B W e l l 3 4 a n d 4 0 Se p 4 8 S a m p l e s 3 r d Q t r 3 r d Q t r 3 r d Q t r 3 r d Q t r 3 0 s a m p l e s 3 r d Q t r N i t r a t e Oc t 4 8 S a m p l e s No v 6 0 S a m p l e s De c 4 8 S a m p l e s EX H I B I T A - 2 SO C t o i n c l u d e : si l v e x , h e p t a c h l o r , he p t a c h l o r e p o x i d e , li n d a n e , & me t h o x y c h l o r ( T e s t Me t h o d 5 0 5 ) Fr e q : E v e r y 9 y r s SO C t o i n c l u d e : si l v e x , h e p t a c h l o r , he p t a c h l o r e p o x i d e , li n d a n e , & me t h o x y c h l o r ( T e s t Me t h o d 5 0 5 ) Fr e q : E v e r y 9 y r s 85 1 3 L i m a n 60 3 M a r t i n 85 1 3 L i m a n 60 3 M a r t i n 85 1 3 L i m a n 60 3 M a r t i n SO C t o i n c l u d e : si l v e x , h e p t a c h l o r , he p t a c h l o r e p o x i d e , li n d a n e , & me t h o x y c h l o r ( T e s t Me t h o d 5 0 5 ) Fr e q : E v e r y 9 y r s Tr i h a l o m e t h a n e & H A A 5 GROUP A WELLS GROUP B WELLS GROUP C WELLS 17 8 218 8a 521 9 622 10 12 27 11 13 33 14 29 34 15 30 35 16 31 41 39 42 40                      City of Rohnert Park Well Monitoring Groups EXHIBIT A‐3 EXHIBIT B Subject: MS4 NPDES Laboratory testing requirements Per NPDES MS4 Order No. R1-2015-0030 # CA0025054 (MS4 Permit), City is required to conduct outfall, receiving water, chronic toxicity, and bio assessment monitoring during the 5 year permit term. Monitoring will consist of grab samples taken in the field by City staff and analyzed by certified laboratory. Intent of outfall/receiving water monitoring program is to characterize pollutant discharges from MS4 outfalls and to assess whether discharges contribute to water quality problems in receiving waters. Chronic toxicity monitoring is used to assess the impact of storm water pollutants on the overall quality of aquatic systems. Outfall, receiving and chronic toxicity testing will be conducted semi-annually and bio assessment must be completed once within the 5 year term of the current permit. Outfall and Receiving monitoring (8x times per year/24 per permit term)  Total Suspended Solids (TSS)  Biochemical Oxygen Demand (BOD)  Total Nitrogen  Total Phosphorus  Ammonia  Enterococci  Lead  Copper  Zinc  E.Coli Permit Term Outfall Monitoring (1 wet weather/ 1 dry weather) 2x per permit term  Inorganics o Antimony o Arsenic o Beryllium o Cadmium o Chromium (total) o Cyanide o Mercury o Nickel o Selenium o Silver o Thallium 2  Pesticides o Aldrin o Bifenthrin o Chlordane o 4,4 DDD o 4,4 DDE o 4,4 DDT o Dieldrin o Alpha-Endosulfan o Endosulfan Sulfate o Endrin o Endrin Aldehyde o Heptachlor Epoxide o Heptachlor o Alpha-Hexachloro- cyclohexane o Delta-Hexachloro-cyclohexane o Gamma-Hexachloro- cyclohexane o Toxaphene Chronic Toxicity Monitoring (4x per permit term) Chronic Toxicity screening shall be conducted on the following species 2x per permit term, then 1 species listed below 2x per term:  Fathead minnow, Pimephales promelas (larval survival and growth test)  Water Flea Ceriodaphnoa dubia (survival and reproduction test)  Green Algae Selanastrum capricornutum (growth test) Bio assessment Monitoring (1 time during the permit term) Bioassessment monitoring will be accomplished using the updated Surface Water Ambient Monitoring Program (SWAMP) Program, Standard Operating Procedures for Collection of Field Data for Bioassessments of California Wadeable Streams: Benthic Macroinvertebrates, Algae, and Physical Habitat, May 2016. Samples are to be shipped to a qualified laboratory recommended by the Department of Fish and Wildlife for analysis. Bio assessment monitoring may be conducted by a separate laboratory and or may be contracted out.   ITEM NO. 6E 1   Meeting Date: May 23, 2017 Department: Finance Submitted By: Betsy Howze, Finance Director Prepared By: Angie Smith, Purchasing Agent Agenda Title: Authorize the City Manager to Execute a Contract Amendment for Independent Audit Services with Macias, Gini and O’Connell LLP for an additional two years with a not to exceed contract amount of $165,000 RECOMMENDED ACTION: Authorize the City Manager to Execute a Contract Amendment for Independent Audit Services with Macias, Gini and O’Connell LLP (MGO) for an additional two years with a not to exceed contract amount of $165,000. BACKGROUND: The City arranges for an annual audit of its financial statements by an independent auditor. The audit firm plays a critical role in evaluating the City’s system of internal controls and overall financial management. It assists in the preparation of the Comprehensive Annual Financial Report (CAFR) and implementation of new Governmental Accounting Standard Board pronouncements. The auditor can also assist in the preparation of the City’s State Controller’s Report. The City entered into an Agreement for Independent Audit Services with Macias, Gini and O’Connell, LLP (MGO) effective February 25, 2014, for a three (3) year term. The original Agreement included an option to renew the agreement for two (2) additional years upon mutual consent of both parties. ANALYSIS: MGO has served as the City’s auditor for three years. During that time City staff has been very satisfied with the work of this highly-regarded firm and believes that it is prudent and in the City’s best interest to continue engaging the firm for auditing services. MGO has worked with the City to strengthen its internal control structure and we look forward to continuing this very important component of the audit. MGO has made a proposal to the City to renew the original service agreement and amend the term for two (2) additional years, to include services for audit years 2016/17 and 2017/18. Total Proposed All-Inclusive Price for Audit Years 2016/17 and 2017/18 not to exceed $165,000. Mission Statement “We Care for Our Residents by Working Together to Build a Better Community for Today and Tomorrow.” CITY OF ROHNERT PARK CITY COUNCIL AGENDA REPORT   ITEM NO. 6E 2   OPTIONS CONSIDERED: Option 1: Amend current contract for independent audit services and extend term for two (2) additional years. Staff recommends this option Option 2: Solicit Requests for Proposals for a new Independent Auditing Firm which takes approximately six (6) months to complete. Due to the timing of the start of the next audit period, it would be very difficult to solicit audit firms and be in contract for the FY 16/17 audit. Staff does not recommend this option. STRATEGIC PLAN ALIGNMENT: This action is consistent with the following Strategic Plan Goals: GOAL B: Achieve and Maintain Financial Stability. FISCAL IMPACT/FUNDING SOURCE: Sufficient Funding is included in the Finance operating budget each fiscal year, for Independent Auditing Services. Department Head Approval Date: May 8, 2017 Finance Director Approval Date: May 8, 2017 City Attorney Approval Date: N/A City Manager Approval Date: May 9, 2017 Attachments: 1. Amendment to Agreement a. Exhibit A – Fees and Billing Schedule 2. Original Agreement EXHIBIT A - FEES AND BILLING SCHEDULE Actual Proposed Proposed Service Hours 2015/16 2016/17 2017/18 City Comprehensive Annual Financial Report (including preparation)460 65,691$ 67,662$ 69,692$ Single Audit Financial Statements (One Major Program)35 4,334 4,464 4,598 Report on City's Gann Appropriations Limit Calculations 5 945 973 1,002 Financing Authority Financial Report 20 2,822 2,907 2,994 Transportation Development Act (TDA) Compliance Report 10 1,591 1,639 1,688 Subtotal 530 75,383 77,645 79,974 Change in Scope of Services: Add: City State Controller's Report Compilation 25 3,500 3,605 3,713 Add: GASB 68 Accounting Services 15 2,500 2,575 2,652 Less: Financing Authority Financial Report (20) (2,822) (2,907) (2,994) Total Estimated Hours (All-Inclusive Maximum Price) 550 78,561 80,918 83,345 Standard Quoted Hourly Hourly Total Rate Rate Hours Total Partner-in-Charge 405$ 304$ 45 13,680$ Technical Reviewer 405 304 20 6,080 Engagement Manager 265 199 85 16,915 Supervising Senior Auditor 170 128 180 23,040 Staff Auditors 125 94 200 18,800 Administrative Assistants 100 75 20 1,500 Total 550 80,015$ Out-of-Pocket Expenses 903$ Total All-Inclusive Price for 2016/17 Audit 80,918$ Total All-Inclusive Price for 2017/18 Audit 83,345$ Total For 2-Year Extension 164,263$ Fees and Billing Schedule Labor Class Schedule of Rates and estimated hours of Each Labor Class For Fiscal 2016/2017 Professional Audit Services   ITEM NO. 7 OAK #4831‐0316‐9347 v1 1   Meeting Date: May 23, 2017 Department: Development Services Submitted By: Mary Grace Pawson, Development Services Director Prepared By: Jeffrey Beiswenger, Planning Manager Agenda Title: Discussion and Direction on Updates to the City’s Smoking Ordinance RECOMMENDED ACTION: Provide direction to staff on possible updates to the City’s smoking ordinance. BACKGROUND and ANALYSIS: Public speakers at two recent City Council meetings complained about smoking on the patios of multi-family units. Council asked staff to bring back information on Cotati’s recent ordinance related to smoking. The Cotati ordinance has some notable differences to the “use of tobacco” ordinance adopted by Rohnert Park. In 2009, the City Council adopted an ordinance amending the municipal code to incorporate regulations related to the use of tobacco. This ordinance was amended earlier this year to regulate electronic cigarettes. The purpose of this study session is to consider whether additional regulations are needed related to secondhand smoke. In light of the recent statewide approval of recreational marijuana use, the city may also wish to consider applying the regulations in the chapter of the municipal code to “cannabis” in addition to “tobacco.” A broader discussion of regulations related to cannabis is planned for an upcoming City Council agenda in June. In 2015, the City of Cotati adopted an ordinance to increase the areas where smoking would be prohibited within the city, including: attached multi-unit residences, recreation areas, city-owned property, public events. Cotati also considered prohibiting smoking in outdoor dining areas and outdoor places of employment, but those were not included in the final ordinance. The Cotati ordinance is included as an attachment to this staff report. The Cotati ordinance is useful as an example since it goes a step farther than the Rohnert Park code in a few key areas: • Declares secondhand smoke a nuisance (Section 9.31.040); • Prohibits smoking on balconies, patios and similar places in multi-unit developments (Section 9.31.050); • Defines a multi-unit residence in a way that applies regulations to both ownership units (condominiums) and rental units (apartment) (Section 9.31.030). The Rohnert Park municipal code treats single family homes and condominiums similarly since both types of housing units are individually owned. Existing Regulatory Framework Rohnert Park Municipal Code (“Municipal Code”) Chapter 8.32, protects non-smokers and minors from cigarette, e-cigarette and tobacco smoke by prohibiting the use of these products in places of employment, multi-unit residential developments, health care facilities, and other areas while still protecting smokers’ rights to smoke in their own single-family homes (including Mission Statement “We Care for Our Residents by Working Together to Build a Better Community for Today and Tomorrow.” CITY OF ROHNERT PARK CITY COUNCIL AGENDA REPORT   ITEM NO. 7 OAK #4831‐0316‐9347 v1 2   condominium units), designated apartment units and in designated smoking areas. The intent of the ordinance is to balance the rights of smokers to smoke and the rights of nonsmokers to be free from the detrimental effects of second hand smoke. Under Chapter 8.32, smoking is prohibited in the following areas: • In multi-family common areas. • In any business where food is served and consumed. • Within twenty-feet (20) of the entrance or exit of any city owned building. Chapter 8.32 also has the following requirements for multi-family developments: • Seventy-five (75) percent of apartment units constructed after June 1, 2009 must be non-smoking and grouped together if possible. • Fifty (50) percent of units constructed before June 1, 2009 must be non-smoking and also grouped together if possible. Chapter 17.06 (Land Use Regulations) regulate Tobacco Stores (retail or wholesale) by requiring a Conditional Use Permit and only permitting this use to locate within the Regional Commercial zoning district. Under certain circumstances, a private smoker’s lounge could be allowed as part of a tobacco store. As noted above, recent amendments to the City of Cotati’s smoking ordinance provide additional protections for residents of multi-family units from secondhand smoke. NEXT STEPS: Based on City Council discussion and direction, staff may proposed amendments to Chapter 8.32 (Use of Tobacco) for additional consideration. STRATEGIC PLAN ALIGNMENT: Maintaining an effective smoking ordinance is consistent with Strategic Plan Goal D – Continue to development a vibrant community. FISCAL IMPACT/FUNDING SOURCE: The fiscal impact of amending the smoking ordinance is the staff time associated with implementing the amendment to the Municipal Code. Funding for this work would come from the Development Services Department’s operational budget. Department Head Approval Date: 05/12/2017 Finance Director Approval Date: NA City Attorney Approval Date: NA City Manager Approval Date: 5/15/2017 Attachments (list in packet assembly order): 1. Example Ordinance from the City of Cotati Secondhand Smoke Review of Regulations City Council Discussion March 23, 2017 Purpose of Tonight’s Discussion Discussion and Direction ◦Should the “use of tobacco” ordinance be updated? ◦Review the City of Cotati “Secondhand Smoke” Ordinance for ideas ◦Carefully consider the treatment of condominiums ◦Consider other modifications to ordinance Next steps Rohnert Park –Cotati Ordinances Key Similarities Regulation Enclosed Areas, not permitted in: •Places of employment •Multi-family common areas •Multi-family units (except Rohnert Park allows for 25% of units to be designated as “smoking” units) Single Family (detached only) •Smoking permitted (including outdoors) Rohnert Park –Cotati Ordinances Key Similarities Regulation Unenclosed Areas, not permitted: •All multi-family common areas (including condominiums) •Within 20’ (Rohnert Park) -25’ (Cotati) of building entrances and windows •Within 25’ of playground •All daycares Rohnert Park –Cotati Ordinances Key Differences Regulation Rohnert Park Cotati Muni Code Chapter “Tobacco Use”“Secondhand Smoke” Medical Marijuana Regs. do not apply Specifically exempted Enclosed Areas •Condominiums Allowed on porch or balcony Not allowed on porch or balcony •Hotels No restrictions No smoking in at least 75% of rooms Rohnert Park –Cotati Ordinances Key Differences Regulation Rohnert Park Cotati Unenclosed Areas •Smoking near entrances/windows Requires posted “no smoking” No posting required •Parks Allowed, except by playgrounds Prohibited •Public places Prohibited in farmer’s markets, concerts, fairs, etc. Prohibited •Retail/service uses Prohibited in service lines (e.g. ATM) and all retail (including outdoor dining) Prohibited except for outdoor dining and service areas Direction Requested Does the City Council want to “reopen” the smoking ordinance and make amendments? Change title/focus from “tobacco” to “smoking” More restrictive? ◦Apply to hotels? ◦Apply to single family homes? ◦Apply to individually owned condo units? ◦Apply to all parks and public spaces Apply to cannabis? Public outreach, who? ITEM NO. 8 1 Meeting Date: May 23, 2017 Department: Development Services Submitted By: Mary Grace Pawson, Director of Development Services Prepared By: Jay Bradford, Building Official Agenda Title: Update on Abatement Activities at the Former State Farm Office Site RECOMMENDED ACTION: None. This item is informational. BACKGROUND: Rohnert Park Municipal Code Section 1.24 outlines the City’s procedures for nuisance abatement. This three step process begins with a “Preliminary Notice of Violation” outlining the nuisance and providing the property owner with a minimum of 10 days to correct the nuisance. The second step of the process is a “Notice of Violation” which can be issued 11 days after the Preliminary Notice and which sets an abatement deadline at least 10 days in the future. The third step is of the process is an “Abatement Hearing” which can take place a minimum of 10 days after the abatement deadline has been missed or approximately 30 days after the Preliminary Notice of Violation was issued. At the Abatement Hearing, the Hearing Officer may issue an abatement outlining the procedures that the City may use to correct the nuisance and recover its costs from the offending property owner. The abatement process is intentionally deliberative because it balances the City’s right to correct a nuisance with an owner’s private property rights. In order to recover costs, it is very important that the City follow the Municipal Code procedures and conform to the terms of any abatement orders. In late May 2016, the City began to receive complaints about the landscaping at 6400 State Farm Drive becoming overgrown, especially on the southern perimeter along Enterprise Dr. On June 3, 2016, staff initiated a code enforcement case and sent a Preliminary Notice of Violation. Staff followed up with the property owner and issued a Notice of Violation on June 14, 2016 (the 11th day) which established an abatement deadline of June 24, 2016. During the week of June 20, 2016, the property owner mowed a portion of the property. All other areas of landscaping were left unmaintained including a very visible section by the sidewalks on State Farm Drive and Enterprise Drive On June 29, 2016, five days after the abatement deadline had passed, the City notified the property owner that a nuisance abatement hearing was scheduled for July 8, 2016, or 10 days in the future. This notice ordered the owner to demonstrate why the City should not abate the Mission Statement “We Care for Our Residents by Working Together to Build a Better Community for Today and Tomorrow.” CITY OF ROHNERT PARK CITY COUNCIL AGENDA REPORT ITEM NO. 8 2 nuisances and impose the costs on the owner. The property owner failed to appear for the hearing, which meant the owner forfeited any right that may have existed to object to the existence of the violations and the City’s right to abate. On July 19, 2016, Director Masterson, the Hearing Officer, issued a Hearing Order that (i) required the owner to abate the violations by July 29, 2016; (ii) required the owner to continue to maintain the property; (iii) provided the City with the right to enter the property abate violations with the owner’s consent or via abatement warrant without further notice; and (iv) required the owner to inspect the property on the 1st and 15th of every month to determine if property is in compliance with the order This Abatement Order has a term of 12 months. The property owner did not comply with the Hearing Order by July 29, 2016, but it did provide the City with permission to enter its property. On July 28 2016, the City retained a landscape contractor and the initial abatement took place from August 1 through August 4, 2016. Since July 29, 2016, staff has inspected for nuisances on the property. Consistent with the Hearing Order, staff inspects around the 1st and 15th of every month, which is the same time interval in which the owner is to be ensuring compliance with the Hearing Order. As a practice, staff has initiated abatement after two consecutive violation occurrences, meaning that if violations are noted on both the 1st and the 15th, the City contacts its contractor and schedules an abatement. A summary of the inspection and abatement activities are summarized in the Case History Table below. Case History Table Date Action 6/3/2016 Inspection and Courtesy Notice Sent 6/14/2016 Inspection and Notice of Violation Sent 6/24/2016 Compliance Deadline 6/29/2016 Inspection and Notice of Hearing Sent 7/8/2016 Abatement Hearing 7/19/2016 Hearing Order Issued 7/29/2016 Hearing Order Compliance Deadline 8/1/2016 - 8/4/2016 Abatement (Landscaping) 8/16/2016 Inspection 9/1/2016 Inspection 9/6/2016 Abatement (Tree Debris) 9/9/2016 Abatement Authorized (Landscape and Watering) 9/12/2016 Abatement (Landscaping) 9/14/2016 Abatement Authorized (Landscaping) 9/15/2016 Inspection and Abatement (Landscaping) 9/16/2016 Abatement (Landscaping) 9/19/2016 Inspection and Abatement (Landscaping) 9/20/2016 Abatement (Landscaping) 9/26/2016 Inspection and Abatement (Landscaping) 9/29/2016 Abatement Authorized (Landscaping and Trash) 10/3/2016 Abatement (Landscaping) ITEM NO. 8 3 10/14/2016 Abatement (Watering) 10/17/2016 - 10/18/2016 Abatement (Trash) 10/24/2016 Abatement (Landscaping) 10/27/2016 Abatement (Landscaping) 10/31/2016 Abatement (Landscaping) 11/14/2016 Abatement (Landscaping) 11/15/2016 Inspection 12/2/2016 Inspection 12/20/2016 Inspection 12/27/2016 Abatement Authorized (Landscaping) 1/3/2017 Inspection 1/13/2017 Abatement (Landscaping) 1/23/2017 Abatement Authorized (Landscaping and Tree Debris) 1/25/2017 - 1/27/2017 Abatement (Landscaping and Tree Debris) 1/31/2017 Abatement (Landscaping) 2/3/2017 Abatement (Landscaping) 2/15/2017 Inspection 2/21/2017 Inspection 3/1/2017 Inspection 3/10/2017 Abatement (Trash and Tree Debris) 3/15/2017 Inspection 3/16/2017 Abatement (Landscaping) 3/31/2017 Inspection 4/17/2017 Inspection 4/25/2017 Abatement Authorized (Landscaping) 4/28/2017 Inspection 5/11/2017 Abatement (Landscaping) 5/12/2017 Inspection and Abatement (Landscaping) 5/15/2017 Inspection and Abatement (Landscaping) 5/18/2017 Abatement Authorized (Landscaping) At the present time, the property remains vacant and unmaintained by the owner. The existing Hearing Order is set to expire on July 19, 2017, however, additional abatement efforts appear necessary to address ongoing nuisances. Staff has prioritized enforcement of the Hearing Order and conducted extensive inspection and abatement activity over the past ten months. Since the owner has been nonresponsive or has had a limited role in addressing nuisances and the Hearing Order is nearing the end of its term, staff is working to address the continued non-compliance. Staff has scheduled an Administrative Hearing for June 6, 2017 to address the ongoing landscaping issue. Staff will ask for a revised order to allow the property maintenance to continue for an additional year and will request the authority to abate property nuisance on the occurrence of a violation or to set-up an ongoing landscaping schedule. Staff is hopeful that this approach will both minimize the nuisance and reduce staff time associated with inspection and abatement. Staff will also be pursuing an ITEM NO. 8 4 abatement order for the structure itself and the authority to provide security services in order to better control vandalism and vagrancy at the site. Staff is also moving forward with securing additional contracts with vendors for mowing, security, and the securing of structures. These services will provide staff with greater flexibility to react when dealing with noncompliant properties. STRATEGIC PLAN ALIGNMENT: This action is consistent with Strategic Plan Goal D - Continue to Develop a Vibrant Community. Continuing to refine the compliance efforts on this site will reduce visual blight and maintain a high standard for Rohnert Park resident’s quality of life. OPTIONS CONSIDERED: None. This item is informational. FISCAL IMPACT/FUNDING SOURCE: This item has no immediate fiscal impact. Long term, the City’s costs for abatement are recovered from the property owner. Department Head Approval Date: 5/16/2017 Finance Director Approval Date: NA City Attorney Approval Date: 5/16/2017 City Manager Approval Date: 5/17/2017 6400 State Farm Dr. Code Compliance Activities Mary Grace Pawson, Director of Development Services Jay Bradford, Chief Building Official May 23, 2017 Municipal Code Abatement Timeline Courtesy Notice Day 0 Notice of Violation Day 10 Abatement Deadline Day 20 Abatement Hearing Day 30 At least 10 days Practically 10 days At least 10 days –practically 20 days Notice of Violation Day 10 Abatement Hearing Day 34 Abatement Deadline Day 24 Courtesy Notice Day 0 10 days 14 days 10 days Case Timeline 06-03-2016 1st Inspection & Courtesy Notice 06-14-2016 2nd Inspection & Notice of Violation 06-29-2016 Abatement Hearing Notice 07-08-2016 Abatement Hearing 07-19-2016 Hearing Order 07-29-2016 Hearing Order Compliance Deadline 08-01-2017 1st Abatement Hearing Order Requirements i.Owner to Abate by 07-29-2016 ii.Continue to Maintain the Property iii.Allow the City to Abate (if necessary) •Owner Granted Access •Warrant iv.Set the Term of the Order to 1 year v.Set Inspection Intervals 1st and 15th Code Compliance Activities 2017 January February March April May Inspection x x x x x Violation x x x x x Abatement x x x ???x 2016 August September October November December Inspection x x x x x Violation x x x x Abatement x x x x Current Conditions 05-19-2017 Next Steps Administrative Hearing ◦Extension ◦Ability to Abate Nuisances Immediately Contractors ◦Mowing ◦Security ◦Boarding ITEM NO. 9 1  Meeting Date: May 23, 2017 Department: Public Works and Community Services Submitted By: John McArthur, Director of Public Works and Community Services Agenda Title:  Adopt a Resolution Approving the Community Center Digital Billboard Use Policy RECOMMENDED ACTION: Adopt a resolution approving the Community Center Digital Billboard Use Policy. BACKGROUND: On April 23, 2013, the City Council adopted a resolution authorizing and approving the Digital Billboard Lease Agreement (Lease) by and between the City and Kirk Veale, dba Veale Outdoor Advertising (Veale), for the financing, installation, operation, and maintenance of the digital billboard adjacent to Highway 101. The Lease included provisions to have Veale replace the manual (non-digital) message board at the Community Center Complex with a new digital billboard sign. The construction and installation of the Community Center sign was to be at no cost to the City. On July 12, 2016, the City Council adopted a resolution to execute a First Amendment to the Lease with Veale. Included in this First Amendment was an increase in the payment from Veale from $50,000 to $65,000 for the construction and installation of the Community Center digital billboard sign. The First Amendment also relieved Veale of any additional responsibility for the Community Center sign and prohibited the City from using the sign to engage in commercial advertising. Staff returned to City Council on November 22, 2016 seeking direction on the new Community Center digital sign design options and the creation of a new Community Center Digital Billboard Use Policy. ANALYSIS: Staff has developed the Community Center Digital Billboard Use Policy (Policy) based on City Council direction provided to staff at the November 22, 2016 City Council meeting. The Policy retains some of the applicable language from the Digital Billboard Use Policy that governs the Highway 101 digital sign, but it also includes information that is specific to the Community Center Digital Billboard (Billboard). The purpose of the Policy is to provide requirements, guidelines and procedures for the identification, prioritization, submission, and display of messages on the Billboard. Mission Statement “We Care for Our Residents by Working Together to Build a Better Community for Today and Tomorrow.” CITY OF ROHNERT PARK CITY COUNCIL AGENDA REPORT 2 General Policy Provisions: The Policy contains general provisions to meet the requirements of the First Amendment with Veale and to mitigate resident concerns about the Billboard. The Policy stipulates that commercial advertising on the Billboard is prohibited (per the First Amendment to the lease with Veale). However, private entities that are renting the Performing Arts Center (PAC) and/or other City facilities for events that are open to the general public are exempted from this prohibition. The Billboard will only operate during the hours of 6:00am to 10:00pm, in order to mitigate resident’s concerns about brightness. In an effort to reduce driver distraction, messages displayed on the Billboard would have a minimum display time of thirty (30) seconds and animated and video messages would be prohibited. City Use of Community Center Digital Billboard: The primary purpose of the Billboard is to communicate to the public about City-sponsored community events and performances at the PAC, public safety and general public service alerts and/or other City alerts and announcements. To support this primary purpose, the Policy would dedicate eighty-five (85) percent of the billboard’s operational time for City usage. Allowable City use of the Billboard would be defined in the Policy as follows: ▪ Emergency or urgent notifications to residents; ▪ City-sponsored PAC productions; ▪ City-sponsored community events; ▪ Public Safety alerts and announcements; ▪ Public service alerts and announcements; and ▪ Other City alerts and announcements. In the unlikely event that the Billboard cannot accommodate all City requests, the requests would be prioritized according to the following criteria: 1. Emergency or urgent notifications to City residents; 2. City events to be held at the Community Center Complex have precedence over other City events; 3. Revenue generating City events will be prioritized over non-revenue generating City events. Revenue-generating City events include, but are not limited to: Performing Arts Center productions, Farmer’s Market, Holiday Arts & Crafts Faire, Animal Shelter Mutt Strut and other fundraising events; non-revenue generating City events include, but are not limited to: Public Safety National Night Out; 4. Public Safety alerts and service announcements; 5. Public service alerts and announcements; 6. Other City alerts and announcements. Non-City Use of Community Center Digital Billboard: The Policy would allow fifteen (15) percent of the billboard’s operational time to be allocated for non-City use. Non-City use would be limited to: ▪ Events and productions open to the general public and sponsored by renters of the PAC and/or other City facilities; 3    ▪ Ticketed and non-ticketed events sponsored by local non-profits, which are held within the City, open to the public, and are of social or economic benefit; ▪ Community related announcements and events by local public educational institutions. Non-City events that would be held at the Community Center Complex (Community Center, PAC, or Sports Center) would be prioritized over other non-City events. If there was any un-booked non-City usage time, the Billboard would default to display City events and announcements. The table below lists the proposed fees to be charged to non-City entities promoting events on the Billboard. The fees for local non-profit organizations are approximately fifty percent (50%) of the fees charged to non-profits for utilizing the Highway 101 digital billboard. Non-City Use: Duration: Rate: Renters of PAC and/or other City Facilities Cost and duration to be included in rental agreement Local Nonprofit Organizations *__ Weeks Maximum per Ad Weekdays and Weekends $50/Entire week Weekends only $20/Weekend Weekday rate (minimum 2 days) $12/Day Local Public Educational Institutions ** *__ Weeks Maximum per Ad Weekdays and Weekends $50/Entire week Weekends only $20/Weekend Weekday rate (minimum 2 days) $12/Day ** No charge for non-ticketed events or community announcements * To be evaluated and approved on a case-by-case basis. STRATEGIC PLAN ALIGNMENT: Adopting a resolution to approve the Community Center Digital Billboard Use Policy is in alignment with Strategic Plan Goal D: Continue to develop a vibrant community. OPTIONS CONSIDERED: Option 1: City Council could adopt a resolution to approve the Policy as developed, which would provide clear guidelines for City and non-City use of the Billboard. Staff recommends this option. 4 Option 2: City Council could make further recommendations to the Policy. Staff would incorporate the recommended changes into the Policy and return to City Council with a revised Policy. Staff recommends this option in the event that City Council determines that significant changes to the Policy would be beneficial for the City. Option 3: City Council could decide not to approve the Policy. This option would leave the Billboard without operational guidelines, which could cause confusion and inconstant application of messaging on the Billboard. Staff does not recommend this option. FISCAL IMPACT/FUNDING SOURCE: The proposed Policy may increase revenue to the City via the promotion of community events hosted by non-profit organizations and events hosted at the Community Center and/or PAC that are open to the general public. Although, revenue amounts generated from the non-City use of the Billboard is unknown at this time, any revenue received could be used to offset the operation and maintenance costs of the Billboard which is estimated at $8,300/year. Department Head Approval Date: March 15, 2017 (J. McArthur) Finance Director Approval Date: N/A (B. Howze) City Attorney Approval Date: March 17, 2017 (C. Herrington) City Manager Approval Date: May 17, 2017 (D. Jenkins) Attachments: 1) Resolution 2017-66 with Exhibit A: Community Center Digital Billboard Use Policy AHANOTU: _________ BELFORTE: _________ CALLINAN: _________ STAFFORD: _________ MACKENZIE: _________ AYES: ( ) NOES: ( ) ABSENT: ( ) ABSTAIN: ( ) RESOLUTION NO. 2017-066 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK ADOPTING A COMMUNITY CENTER DIGITAL BILLBOARD USE POLICY   WHEREAS, the City of Rohnert Park (“City”) entered into a Digital Billboard Lease dated April 23, 2013 with Kirk Veale, dba Veale Outdoor Advertising (“Billboard Operator”); and WHEREAS, the City entered into a First Amendment to the Digital Billboard Lease dated July 12, 2016; and WHEREAS, the First Amendment stipulated that the Billboard Operator would make payment to the City for the construction and installation of a new digital billboard sign (“Billboard”) at the City’s Community Center Complex; and WHEREAS, the First Amendment further stipulated that Veale would be relieved of any additional responsibility for the Billboard; and WHEREAS, the First Amendment prohibited the City from engaging in commercial advertising on the Billboard; and WHEREAS, the purpose of the City’s Community Center Digital Billboard Use Policy (“Policy”) is to provide guidelines for the purpose and use of the Billboard, and the procedures for the submission, prioritization, and display of messages on the Billboard. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Rohnert Park herby adopts the City of Rohnert Park Community Center Digital Billboard Use Policy attached hereto as Exhibit “A”; and BE IT FURTHER RESOLVED that the City Council authorizes and directs the City Manager to implement the Community Center Digital Billboard Use Policy for and on behalf of the City of Rohnert Park. DULY AND REGULARLY ADOPTED this 23rd day of May, 2017. CITY OF ROHNERT PARK ____________________________________ Jake Mackenzie, Mayor ATTEST: ______________________________ JoAnne M. Buergler, City Clerk Attachment: Exhibit A - Community Center Digital Billboard Use Policy CITY OF ROHNERT PARK CITY COUNCIL POLICY     SUBJECT COMMUNITY CENTER DIGITAL BILLBOARD USE POLICY POLICY NO. ASSIGNED BY CITY CLERK’S OFFICE RESO. NO. EFF. DATE PAGE 1 OF10   Exhibit A to Resolution  PURPOSE The purpose of the Community Center Digital Billboard (Billboard) is to communicate to the public about: 1) City sponsored community events, 2) performances and events at the Performing Arts Center (PAC), 3) public safety and public service alerts and/or notifications, and 3) other City alerts and announcements. The Billboard will also be made available to 1) promote events sponsored by local non-profit organizations, 2) promote events sponsored by renters of the Community Center and/or PAC that are open to the public, and 3) notifications from local educational institutions. The purpose of this Community Center Digital Billboard Use Policy (Policy) is to provide guidelines and procedures for the identification, prioritization, submission and display of messages on the Billboard. DEFINITIONS Billboard: means the digital billboard located at the Community Center Complex. City: means the City of Rohnert Park and its departments and events sponsored by the City. City Manager: means the City of Manager of the City or the City Manager’s designee. Community Events: means local events that are held within the City, open to the public, and are of social or economic benefit. For-Profit Organization: means a business or other organization whose primary goal is making money (a profit) or has not been deemed eligible for nonprofit status by the Internal Revenue Service. Local Nonprofit Organization: means an organization that has been conferred eligible for nonprofit status by the Internal Revenue Service under United States Internal Revenue Code Section 501(c) and maintains an office or provides services within the City of Rohnert Park. Local Public Educational Institutions: means and includes the Cotati-Rohnert Park Unified School District and Sonoma State University, excludes the Green Music Center. CITY OF ROHNERT PARK CITY COUNCIL POLICY     SUBJECT COMMUNITY CENTER DIGITAL BILLBOARD USE POLICY POLICY NO. ASSIGNED BY CITY CLERK’S OFFICE RESO. NO. EFF. DATE PAGE 2 OF10   Exhibit A to Resolution  Non-City: means and includes local nonprofit organizations, local public educational institutions, and renters of the PAC/Community Center. POLICY A. Responsibility The Department of Public Works/Community Services or such other department as designated by the City Manager is responsible for managing and submitting messages for display on the Billboard. If there are any questions regarding content of the message, or whether or not a group requesting use of the Billboard is authorized under this policy, the City Manager will serve as the final decision-making authority. B. Policy Requests to display messages consistent with this policy shall be submitted to the Department of Public Works/Community Services or such other department as designated by the City Manager. The Billboard shall only operate during the hours of 6:00am to 10:00pm and shall not display more than one hundred twenty (120) messages per hour. Animated and video messages are prohibited. City message requests will have priority over all Non- City requests and the City will reserve eighty-five percent (85%) of the Billboard’s operational time for City messages. The remainder fifteen percent (15%) of the operational time will be available for Non-City notifications. The Billboard will not be available for commercial advertising by For-Profit Organizations, with the exception of renters of the Community Center and/or PAC who are sponsoring events that are open to the general public through free admission or as a ticketed event. Allowable uses of the Billboard are defined as follows: CITY OF ROHNERT PARK CITY COUNCIL POLICY     SUBJECT COMMUNITY CENTER DIGITAL BILLBOARD USE POLICY POLICY NO. ASSIGNED BY CITY CLERK’S OFFICE RESO. NO. EFF. DATE PAGE 3 OF10   Exhibit A to Resolution  Allowable Use: Allowable Time Allotment: City Use ▪ Emergency or urgent notifications to residents ▪ City-sponsored PAC productions ▪ City-sponsored community events ▪ Public Safety alerts and announcements ▪ Public service alerts and announcements ▪ Other City alerts and announcements 85% Non-City Use: ▪ Events and productions open to the general public and sponsored by renters of the PAC and/or Community Center ▪ Community ticketed and non-ticketed Community Events sponsored by Local Non-Profits, which are held within the City, open to the public, and are of social or economic benefit ▪ Community related announcements and events by Local Public Educational Institutions * Non-City messages are limited to the name of the event, the sponsor, date, time and other specific factual details of the event. 15% C. General Information, Procedures and Prioritization General Information 1. Requests will be approved on the basis of availability and conformity to the prioritization and criteria as outlined in this policy. 2. Duration of all messages will be determined on a case by case basis by the City Manager or the Public Works/Community Services Department as designated by the City Manager. 3. Each message will be displayed for the prescribed time and must conform to the parameters outlined in Exhibit A. CITY OF ROHNERT PARK CITY COUNCIL POLICY     SUBJECT COMMUNITY CENTER DIGITAL BILLBOARD USE POLICY POLICY NO. ASSIGNED BY CITY CLERK’S OFFICE RESO. NO. EFF. DATE PAGE 4 OF10   Exhibit A to Resolution  NOTE: The City has sole discretion in determining the notification time placement within the display loop. Procedures 1. City message requests must be submitted a minimum of one week prior to the desired beginning display date. 2. Non-City events and announcement message requests must be submitted on the Community Center Digital Billboard Message Request Form (Exhibit C) a minimum of 10 business days prior to the desired beginning display date. 3. The Request Form is located on the City’s website at: www.rpcity.org. The request form must be completed legibly and in its entirety in order to be considered. Prioritization City message requests will be prioritized according to the following criteria: 1. Emergency or urgent notifications to City residents; 2. City events to be held at the Community Center Complex have precedence over other City events; 3. Revenue generating City events will be prioritized over non-revenue generating City events. Revenue-generating City events include, but are not limited to: Performing Arts Center productions, Farmer’s Market, Holiday Arts & Crafts Faire, Animal Shelter Mutt Strut and other fundraising events; non-revenue generating City events include, but are not limited to: Public Safety National Night Out; 4. Public Safety alerts and service announcements; 5. Public service alerts and announcements; 6. Other City alerts and announcements. Non-City requests to utilize the Billboard will be prioritized according to the following criteria: 1. Non-City events to be held at the Community Center Complex have precedence over other Non-City events. CITY OF ROHNERT PARK CITY COUNCIL POLICY     SUBJECT COMMUNITY CENTER DIGITAL BILLBOARD USE POLICY POLICY NO. ASSIGNED BY CITY CLERK’S OFFICE RESO. NO. EFF. DATE PAGE 5 OF10   Exhibit A to Resolution  NOTE: If there is un-booked non-City usage time, the Community Digital Billboard will default to display City events and announcements based on approval by the City Manager. D. Message Content The City shall not, (in the judgment of the Rohnert Park City Manager or his or her designee), display any message that: i. is false, misleading, or deceptive; ii. includes commercial advertising by for-profit businesses (renters of PAC and/or Community Center who want to promote events at those venues that are open to the general public are exempted from this prohibition) iii. depicts violence or anti-social behavior or relates to illegal activity; iv. promotes or opposes a candidate for public office or promotes or opposes a ballot measure; v. holds a person, or group of persons up to public ridicule; derision; or embarrassment; or defames a person or group of persons; or vi. contains language that is obscene; vulgar; profane; or scatological, or that presents a clear-and-present danger of causing riot, disorder, or other imminent threat to public safety, peace, or order. If despite such preliminary review by the City, a message is subsequently determined to be in violation of these criteria, the City Manager may cause such message to be removed. If a Non-City message is removed, a pro-rated refund will be provided by the City. E. Digital Specification Requirements It is the responsibility of the requestor to provide the desired message in the following format: 1. File Size: 200 pixel Height x 704 pixel Width 2. File Type: Uncompressed.jpg 3. DPI: 72 default setting CITY OF ROHNERT PARK CITY COUNCIL POLICY     SUBJECT COMMUNITY CENTER DIGITAL BILLBOARD USE POLICY POLICY NO. ASSIGNED BY CITY CLERK’S OFFICE RESO. NO. EFF. DATE PAGE 6 OF10   Exhibit A to Resolution  4. Color Mode: RGB and CMYK F. Authority 1. The City Manager or designee is authorized to accept or reject requests, including the content of the message, and may propose alteration to the requestor in order to comply with the guidelines set forth in this policy. 2. The City Manager or designee may pre-empt, remove or delay displaying any City message. 3. For Non-City message displays, the City Manager or designee may delay the display or remove a playing message for non-payment of the applicable fee. There will be no refunds or reductions in charges for any resulting loss of message display time. However, if a Non-City message is delayed for reasons or circumstances beyond the control of the City, the City will use its best efforts to extend or increase the frequency of the affected message. G. Cost Recovery : There will be no fees or charges applied to City message displays. There will be no fees or charges applied to local public educational institutions for non-ticketed or non-fee charged events or announcements. Local public educational institution messages for ticketed or fee charge events will be charged as Non-City messages. Ticketed performances and events held at the Green Music Center are considered commercial and are excluded from the use of the Community Center Digital Billboard. Non-City messages will be charged at the rates indicated in the attached Cost Recovery Rate Schedule (Exhibit B). CITY OF ROHNERT PARK CITY COUNCIL POLICY     SUBJECT COMMUNITY CENTER DIGITAL BILLBOARD USE POLICY POLICY NO. ASSIGNED BY CITY CLERK’S OFFICE RESO. NO. EFF. DATE PAGE 7 OF10   Exhibit A to Resolution  Exhibit A Advertising Dimensions and Durations It is the responsibility of the requestor to provide the desired Digital Billboard display in the following format: 1. File Size: 200pixel Height x 704pixel Width 2. File Type: Uncompressed.jpg 3. DPI: 72 default setting 4. Color Mode: RGB and CMYK 5. Messages shall be limited to a maximum of nine words of text Message Duration:  Minimum frame display duration: 30 seconds  Minimum total message duration: 2 days  Maximum total message duration: TBD days, dependent upon availability and at the City Manager’s discretion. CITY OF ROHNERT PARK CITY COUNCIL POLICY     SUBJECT COMMUNITY CENTER DIGITAL BILLBOARD USE POLICY POLICY NO. ASSIGNED BY CITY CLERK’S OFFICE RESO. NO. EFF. DATE PAGE 8 OF10   Exhibit A to Resolution  Exhibit B Cost Recovery Rate Schedule Non-City Use: Duration: Rate: Renters of PAC and/or Community Center __ Weeks Maximum per Ad Cost and duration to be included in rental agreement Weekdays and Weekend Weekends only Weekday rate (minimum 2 days) Local Nonprofit Organizations *__ Weeks Maximum per Ad Weekdays and Weekends $50/Entire week Weekends only $20/Weekend Weekday rate (minimum 2 days) $12/Day Local Public Educational Institutions ** *__ Weeks Maximum per Ad . Weekdays and Weekends $50/Entire week Weekends only $20/Weekend Weekday rate (minimum 2 days) $12/Day ** No charge for non-ticketed events or community announcements * To be evaluated and approved on a case-by-case basis. CITY OF ROHNERT PARK CITY COUNCIL POLICY     SUBJECT COMMUNITY CENTER DIGITAL BILLBOARD USE POLICY POLICY NO. ASSIGNED BY CITY CLERK’S OFFICE RESO. NO. EFF. DATE PAGE 9 OF10   Exhibit A to Resolution  Exhibit C CITY OF ROHNERT PARK COMMUNITY CENTER DIGITAL BILLBOARD MESSAGE REQUEST APPLICATION Organization/Group Name: _____________________________________________________ ☐Local Non-Profit ☐Local Public Educational ☐City Contact Person(s)______________________Contact Number(s)_________________ E-mail address__________________________ Type of Event ___________________ ☐Ticketed ☐Non Ticketed ☐Open to Public ☐Ticket Holders Only ☐Admission Charge ☐Free Date and Time of Event ___________________Location of Event______________ ________________ Dates Requesting to Display Message: Beginning: __________________________End:_______________________________ E – Mail Application To: City of Rohnert Park e-mail: digitalbillboard@rpcity.org note: message request must include the actual message image intended to be displayed in a properly formatted jpeg file (Exhibit A). Applications must be received at least 10 business days prior to the desired posting date. Print the message as it should appear on the Billboard. Under the City’s Community Center Digital Billboard Use Policy, Non-City messages are limited to the name of the event, the sponsor, date, time and other specific factual details of the event. Community- related announcements are permitted by local public educational institutions. The City of Rohnert Park reserves the right to modify content and format for policy compliance. CITY OF ROHNERT PARK CITY COUNCIL POLICY     SUBJECT COMMUNITY CENTER DIGITAL BILLBOARD USE POLICY POLICY NO. ASSIGNED BY CITY CLERK’S OFFICE RESO. NO. EFF. DATE PAGE 10 OF10   Exhibit A to Resolution  ____________________________________________________________ ____________________________________________________________ ____________________________________________________________ Disclaimer of Liability On behalf of the requesting organization, it is agreed that the City of Rohnert Park will not be held liable for any improper or incorrect use of the information displayed on the Digital Billboard and that the City assumes no responsibility for any organization’s use of the Digital Billboard. In no event may the City be liable for any damages, whether direct, indirect, incidental, special, exemplary or consequential regardless of cause, and on any theory of liability, whether in contract, strict liability, or tort (including negligence or otherwise) arising in any way out of the use of the Digital Billboard, even if advised on the possibility of such damage. I certify that I am authorized to submit this request by the organization identified above. ________________________________ __________________________ Signature Date _________________________________ Print Name May 23, 2017 Community Center Complex Digital Billboard Use Policy November 22, 2016 City Council Direction on: 1.New Digital Sign Design –Dual Face LED 2.Digital Sign Use Policy 1.Operation 2.City Use 3.Non City Use 4.Prioritization 5.Content 6.Authority 7.Fees Daily 6 AM to 10 PM Messages Displayed for 30 Seconds 120 Messages per hour No Animation No Commercial Advertising Emergency Notifications City Sponsored Performing Arts Center Productions City Sponsored Community Events Public Safety Alerts and Other City Announcements PAC/Community Center Renters (events open to the public) Local Non-Profit Sponsored Community Events Local Public Educational Institutions Community Announcements and Events 1.Emergency Notifications 2.Events at Community Center Complex 3.Revenue Generating Events 4.Public Safety and Other Announcements 1.Content is Consistent With 101 Sign Usage Policy 2.City Manager or Designee Approval 3.No Fee for City Messages 4.Non-City Messages are 50% of 101 Sign Fees Sides: ◦Community Center ◦Spreckels Performing Arts Center Center: ◦Sports Center Logo   Item No. 10  1   Meeting Date: May 23, 2017 Department: Administration Submitted By: Darcy Drolet, Executive Assistant Prepared By: Darcy Drolet, Executive Assistant Agenda Title: Sonoma County Mayors’ and Councilmembers’ Association Matters RECOMMENDED ACTION: Consider supporting the requests of councilmembers submitting letters of interest for Mayors’ and Councilmembers’ Association appointments. BACKGROUND: The Sonoma County Mayors’ and Councilmembers’ Association (Association) is a collaboration of all Sonoma County cities with a goal of creating a united front to represent the strongest voice possible in support of city interests. At its next board meeting on June 8, 2017, the Association Board of Directors will consider several matters of business including appointment to existing vacant committee positions. ANALYSIS: Letters of Interest At its next meeting on June 8, 2017, the Association Board of Directors will consider letters of interest submitted by city councilmembers to fill various vacancies which are attached for consideration of support by Council (Attachment 1). STRATEGIC PLAN ALIGNMENT: This item aligns with the City’s Strategic Plan Goal A & C by facilitating participative leadership at all levels while also ensuring the effective delivery of public services. OPTIONS CONSIDERED: 1. Recommended Option: Staff recommends following the course of action outlined in this report. No other options were considered as these actions are initiated by previously established Association. FISCAL IMPACT/FUNDING SOURCE: N/A Department Head Approval Date: N/A Finance Director Approval Date: N/A City Attorney Approval Date: N/A City Manager Approval Date: May 15, 2017 Attachments (list in packet assembly order): 1. Summary of Vacancies and Letters of Interest Mission Statement “We Care for Our Residents by Working Together to Build a Better Community for Today and Tomorrow.” CITY OF ROHNERT PARK CITY COUNCIL AGENDA REPORT SUMMARY OF LETTERS OF INTEREST For Sonoma County Mayors’ & Councilmembers’ Association Board of Director Appointments 1. ABAG Executive Board, one position, to fill expiring term (June 2017) of Jake Mackenzie (Rohnert Park). Two year fixed term.  Letter received from Jake Mackenzie (Rohnert Park) requesting reappointment 2. ABAG Executive Board, (Alternate), one position, to fill expiring term (June 2017) of Julie Combs (Santa Rosa). Two year fixed term.  Letter received from Gabe Kearney (Petaluma) requesting appointment  Letter received from Julie Combs (Santa Rosa) requesting reappointment 3. Sonoma County Agricultural Preservation & Open Space District Citizens Advisory Committee, one position, to fill the expiring term (June 2017) of John Dell’Osso (Cotati). Term expires two years from appointment.  Letter received from John Dell’Osso (Cotati) requesting reappointment 4. NCRA Board, one position, to fill vacant term of Sonoma County (previously Mendocino County); must be a Cloverdale or Healdsburg Mayor or Councilmember; term expires two years from appointment.  Letter received from David Hagele (Healdsburg) requesting appointment CITY OF PETALUMA POST OFFICE BOX 61 PETALUMA, CA 94953-0061 Gabe Kearney Councilmember Petaluma City Hall 11 English Street Petaluma, CA 94952 Phone (707) 778-4345 Fax (707) 778-4419 E-Mail councilmemberkearney@me.com April 24, 2017 Sonoma County Mayors' and Councilmembers' Association City of Rohnert Park JoAnne Buergler, City Clerk 130 Avram Avenue Rohnert Park, CA 94928 RE: ABAG Executive Board (Alternate) Honorable Mayors and Council Members, I am submitting my letter of interest in filling the vacancy on the ABAG Executive Board (Alternate) that was created as a result of Julie Comb’s term expiring in June of 2017. The role of ABAG in the coming years is going to be a crucial one as we move forward with planning for improvements to our regional transit systems, update our greater land use decisions, and develop strategies to better address the housing needs for the bay area. In the past six-years of serving as a councilmember in Petaluma I have advocated strongly for increased funding and access for transit, affordable housing. I have had the pleasure of working collaboratively with representatives on the Health Action Council for five of the past six years, and currently represent Petaluma on the Sonoma Clean Power board. I strongly feel my diverse background with experience in healthcare management, emergency management, and as a first responder provide me with a wealth of knowledge that could be applied to this position. Please call me if you have any questions. Respectfully, Gabe Kearney Council Member City of Petaluma 707-758-5513 April 19, 2017 Ms. JoAnne M. Buergler, CMC City of Rohnert Park 130 Avram Avenue, Rohnert Park, CA 94928 Re: Letter of Interest North Coast Railroad Authority Vacant City Representative Seat Dear Ms. Buergler: Please accept this letter as my formal Letter of Interest to be appointed to the Vacant City Representative Seat on the North Coast Railroad Authority. With my background in Commercial Real Estate Finance, as well as work on the Healdsburg City Council, I believe I’ll be an active & thoughtful contributor to the NCRA. Please feel free to call me if you have any questions Sincerely, David L. Hagele Councilmember City of Healdsburg ITEM NO. 11     1   Meeting Date: May 23, 2017 DRAFT Department: Public Safety, Fire Division Submitted By: Jim Thompson, Fire Marshal Prepared By: Jim Thompson, Fire Marshal Agenda Title: Declaration of Weed Abatement, Protest Hearing RECOMMENDED ACTION: Staff recommends that the City Council take the following actions:  Conduct the required protest hearing;  Adopt the resolution finding no defensible protests and ordering the abatement of weeds on the noticed lots or properties  Direct staff to implement the weed abatement program SUMMARY: On May 9, 2017, the City Council adopted Resolution No. 2017-051 declaring weeds to be a seasonal and recurrent nuisance, and directed the weeds to be abated from the properties identified or the City would affect abatement through the use of a contractor. The citywide inspection for lots and properties in violation of established Weed Abatement Standards has been completed. Attached is a complete list of lots that were found to be in violation. At this time a several of those lots have cleared their violations. In accordance with state law and City Council Resolution No. 2017-051, starting on or about May 10, 2017, all affected property owners were notified of this action, by means of written notices, phone messages, phone calls and/or emails. Also as required by Resolution No. 2017-051, a notice was published in the Community Voice on Friday, May 12, and Friday, May 19, 2017, regarding the Weed Abatement Protest Hearing scheduled for May 23, 2017. Inspections for compliance of the properties noted in violation are scheduled to begin May 24, 2017, with abatements intended to begin June 26, 2017. STRATEGIC PLAN ALIGNMENT: Implementing this action will continue to develop a vibrant community. OPTIONS CONSIDERED: 1. Recommended: Staff recommends receiving public comment and to move forward with the weed abatement process, as outlined in Resolution 2017-051 Mission Statement “We Care for Our Residents by Working Together to Build a Better Community for Today and Tomorrow.” CITY OF ROHNERT PARK CITY COUNCIL AGENDA REPORT ITEM NO. 11     2   2. Alternative: Staff also considered the option of not abating unmanaged weed growth on properties within the city. This results in a blighted appearance and has been a contributing factor in significant vegetation fires during the summer and fall months. FISCAL IMPACT/FUNDING SOURCE: No significant fiscal impacts are related to this. If abatement is needed the property owner shall bear those costs. ========================================================================== Department Head Approval Date: 05-18-2017 By: Brian Masterson City Manager Approval Date: 05-16-2017 By: Darrin Jenkins City Attorney Approval Date: N/A Attachments (list in packet assembly order): 1) Resolution 2) Weed Abatement List for 2017 3) Public Hearing Notice RESOLUTION NO. 2017-067 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK ORDERING THE CITY MANAGER TO ABATE NUISANCES EXISTING WITHIN THE CITY OF ROHNERT PARK WHEREAS, it is the determination of the City Council that certain weeds are growing upon the streets and sidewalks and upon and in front of private property within the City of Rohnert Park which, if not abated, constitute a fire and health menace and are otherwise noxious and dangerous, and that such weeds constitute a public nuisance; WHEREAS, such weeds are more particularly defined and described in Section 8.08.010 of the Rohnert Park Municipal Code; WHEREAS, on the May 9th, 2017, the City Council of the City of Rohnert Park declared such weeds to be a public nuisance and authorized the City Manager to mail a copy of a Notice to Destroy Weeds to the owners of such properties in accordance with Section 8.08.040 of the Rohnert Park Municipal Code; WHEREAS, starting on or about May 9th, 2017, all affected property owners were notified of this action, including by means of written notices, phone messages, phone calls and/or emails, per Assessor Parcel Numbers listed on Exhibit A attached to this resolution and incorporated herein, stating that inspections for compliance of the properties noted in violation are scheduled to begin May 24th, 2017, and, if not in compliance, the City is authorized to abate the weeds and assess the costs of such abatement upon the lots and lands from which such nuisance was abated and that such abatement is intended to begin on June 26th, 2017, and; WHEREAS, the required duly noticed and published public hearing was held before the City Council on May 23rd, 2017, in order for said property owners to state their objections and protests to the destruction of such weeds. NOW, THEREFORE, BE IT RESOLVED that the Council of the City of Rohnert Park, having heard and considered all objections and protests to the removal of such weeds at the noticed time and place, overrules all objections and protests, if any. BE IT FURTHER RESOLVED that the Council of the City of Rohnert Park orders the City Manager, or his designees, to abate nuisances existing within the City of Rohnert Park effective May 23rd, 2017, on the properties described in Exhibit “A” to this resolution. 2 2017-067 DULY AND REGULARLY ADOPTED this 23rd day of May, 2017. CITY OF ROHNERT PARK ____________________________________ Jake Mackenzie, Mayor ATTEST: _____________________________ JoAnne M. Buergler, City Clerk Exhibit A: Properties List —Potential Mitigation Sites AHANOTU: _________ BELFORTE: _________ CALLINAN: _________ STAFFORD: _________ MACKENZIE: _________ AYES: ( ) NOES: ( ) ABSENT: ( ) ABSTAIN: ( ) Ex h i b i t A t o t h e R e s o l u t i o n : We e d A b a t e m e n t 2 0 1 7 Pr o p e r t i e s L i s t - P o t e nt i a l M i t i g a t i o n S i t e s # S t r e e t N a m e S t r e e t # A P N C o m m e n t S t a t u s D o n e Notes 1 Ad r i a n D r . 7 3 0 5 1 4 3 - 1 5 0 - 0 2 4 Bl a c k C o m p a n y T h e , C / o C h a r l e s B l a c k , 1 7 7 5 9 C a l l e D e P a l e r m o , P a c i f i c P a l i s a d e s , C A 9 0 2 7 2 Mowed 2 Ad r i a n D r . 7 3 0 9 1 4 3 - 1 5 0 - 0 2 3 Bl a c k C o m p a n y T h e , C / o C h a r l e s B l a c k , 1 7 7 5 9 C a l l e D e P a l e r m o , P a c i f i c P a l i s a d e s , C A 9 0 2 7 2 Mowed 3 Bu s i n e s s P a r k D r 5 3 0 2 1 4 3 - 0 4 0 - 1 3 5 So n o m a M e d i a I n v e s t m e n t , L L C , C / o S t e p h e n D a n i e l s , 4 2 7 M e n d o c i n o A v , S a n t a R o s a , C A 9 5 4 0 1 - 6 3 1 3 Ta l l G r a s s 4 Bu s i n e s s P a r k D r 0 1 4 3 - 0 4 0 - 1 3 4 Ke n B l a c k m a n k b l a c k m a n @ c a l l a t g . c o m F i e l d i s s e e d e d e v e r y y e a r . W e s t F i e l d . C B P r o p e r t i e s I n c 2 3 7 5 H a r d i e s L n , Sa n t a R o s a , C A 9 5 4 0 3 Ta l l G r a s s 5 Bu s i n e s s P a r k D r 0 0 4 5 - 0 7 5 - 0 1 5 Sp e n s a C a l i f o r n i a I L L C , C / o D o n B e r g , 10 4 4 6 N 7 4 t h S t. , S t e 1 5 0 , S c o tt s d a l e , A Z 8 5 2 5 8 Ta l l G r a s s 6 Ca l a W a y 1 2 0 9 1 5 8 - 2 7 0 - 0 6 5 St e v e n S c a r p a , 2 3 5 P o s a d a D e l S o l , N o v a t o , C A 9 4 9 4 9 P a u l 4 1 5 - 3 2 0 - 2 9 2 8 Ta l l G r a s s 7 Ca r l s o n C o u r t 6 5 5 1 4 3 - 9 3 0 - 0 5 3 Le o P e n n a c c h i o T r , 1 4 0 8 O W L P O I N T , S A N T A R O S A C A 9 5 4 0 9 6 5 5 C a r l s o n C t Ta l l G r a s s 8 Ca s c a d e C o u r t 1 6 0 1 4 3 - 0 2 1 - 0 0 6 He a d l e y P r o p e r t i e s L l c . 3 8 4 T E S C O N I C T , S A N T A R O S A C A 9 5 4 0 1 S t . P e t . C A 9 4 9 5 4 B u r t B a n g s u r g 4 8 1 - 1 5 8 0 Mowed 9 Ci t y C e n t e r D r i v e 4 1 5 1 4 3 - 0 5 1 - 0 6 6 Bl u e A p p l e D e n t a l , L L C , 1 5 3 5 M a r i a P l . , R o h n e r t P a r k , C A 9 4 9 2 8 Mowed 10 Co m m e r c e B l v d 5 9 0 0 1 4 3 - 0 2 1 - 0 6 4 Ke n E l i e 7 F o r e s t T r a i l P e t a l u m a C A 9 4 9 5 2 4 8 1 - 5 7 4 7 c e l l Ta l l G r a s s 11 Co m m e r c e B l v d 6 0 0 1 1 4 3 - 0 2 1 - 0 3 6 Ex p r e s s w a y S e l f S t o r a g e - A n g i e & R o n W a t k i n s ( s a m e a d d r e s s ) 5 8 8 - 8 8 7 8 Mowed 12 Do w d e l l A v e . 4 6 4 9 0 4 5 - 0 7 5 - 0 0 9 Ro b e r t s H e l e n L T r E t A l , 4 6 4 9 D o w d e l l A v e . , S a n t a R o s a , C A 9 5 4 0 7 Ta l l G r a s s 13 Ea s t C o t a t i A v e 1 4 4 5 1 4 3 - 3 4 0 - 0 6 1 St e v e n J S c a r p a 2 3 5 P o s a d a D e l S o l N o v a t o C A 9 4 9 4 9 4 1 5 3 8 2 - 0 8 0 0 P a u l 4 1 5 - 3 2 0 - 2 9 2 8 Ta l l G r a s s 14 Go l f C o u r s e D r i v e W . 8 0 0 4 5 - 0 7 5 - 0 1 6 Ti m o p h y T e s c o n i E t A l , C / o T a w n y T e s c o n i , 3 9 1 2 W a l k e r A v e . , S a n t a R o s a , C A 9 5 4 0 7 Ta l l G r a s s 15 Ke i s e r A v e 1 2 2 0 04 5 - 2 5 3 - 0 0 9 th r u - 0 1 2 M i l t o n G e e , 9 1 7 W r i g h t S t . , S a n t a R o s a , C A 9 5 4 0 4 L e l a n d G e e ( 7 0 7 ) - 4 8 1 - 1 5 5 3 Ta l l G r a s s 16 Ke i s e r A v e 0 15 9 - 5 5 0 - 0 0 7 U n i v e r s i t y D i s t r i c t L L C , C / o B r o o k f i e l d B a y A r e a H o l d i n g s , 5 0 0 L a G o n d a W a y , S t e 1 0 0 , D a n v il l e , C A 94 5 2 6 Ta l l G r a s s 17 Ke i s e r A v e 0 15 9 - 5 5 0 - 0 0 8 V a s t O a k P r o p e r t i e s . P O B O X 2 2 4 0 , H e a l d s b u r g , C A 9 5 4 4 8 Ta l l G r a s s 18 La b a t h A v e 5 8 7 0 1 4 3 - 0 4 0 - 1 2 4 Ci t y o w n e d : W i l l b e m o w e d b y P u b l i c W o r k s - O l d R P S t a t i u m A r e a Ta l l G r a s s In Progress 5/17/17 19 La g u n a D e S a n t a Ro s a F l o o d C o n t r o l Ch a n n e l S a n t a R o s a W a t e r A g e n c y - J o h n N e h o u s e 5 2 1 - 1 8 4 5 Ta l l G r a s s 20 Ma r t i n A v e 40 5 1 4 3 - 0 4 0 - 1 2 0 Ro h n e r t P a r k L o d g i n g L L C , 1 3 4 8 6 M e l o d y R d . C h i n o H il l s C A 91 7 0 9 Ta l l G r a s s In Progress 5/17/17 21 Ma r t i n A v e 6 1 1 1 4 3 - 9 3 0 - 0 6 1 WI N E B O X L L C , P O B O X 9 0 8 , G O N Z A L E Z C A 9 3 9 2 6 A. M . L . M a n a g e m e n t , P . O . B o x 2 6 6 4 , G r a n i t e B a y , C A 9 5 7 4 6 . Ta l l G r a s s May Need Re-cut 22 Me d i c a l C e n t e r D r i v e 1 3 8 5 1 5 9 - 4 6 0 - 0 2 7 KS L R O H N E R T P A R K I I L P , C / O K I S C O S E N I O R L I V I N G L L C , 5 7 9 0 F L E E T S T S T E 3 0 0 , C A R L S B A D C A 9 2 0 0 8 Ta l l G r a s s 23 Me d i c a l C e n t e r D r i v e 1 3 7 1 1 5 9 - 4 6 0 - 0 0 4 PH I L O N P R O P E R T I E S , C / O F A R E L L A B R A U N & M A R T E L L L P , 2 3 5 M O N T G O M E R Y S T 1 7 T H F L , S A N FR A N C I S C O C A 9 4 1 0 4 Ta l l G r a s s 24 Me d i c a l C e n t e r D r i v e 1 4 0 1 1 5 9 - 4 6 0 - 0 0 5 Sa n t a R o s a H e a l t h S y s t e m 1 1 6 5 M o n t g o m e r y D r . S R 5 4 6 - 3 2 1 0 Ta l l G r a s s 25 Me d i c a l C e n t e r D r i v e 1 4 5 1 1 5 9 - 4 6 0 - 0 2 0 SA N T A R O S A H E A L T H S Y S T E M , C / O M E M H O S P / A D MI N I S T R - C O N T R O L L E R , 1 1 6 5 M O N T G O M E R Y D R , SA N T A R O S A C A 9 5 4 0 5 - 4 8 0 1 Ta l l G r a s s 26 No n e 0 1 5 9 - 4 6 0 - 0 2 6 KS L R o h n e r t P a r k I I L P , C / o K i s c o S e n i o r L i v i n g L L C , 5 7 9 0 F l e e t S t . # 3 0 0 , C a r l s b a d , C A 9 2 0 0 8 Ta l l G r a s s 27 Pa d r e P a r k w a y 6 1 4 3 - 0 5 1 - 0 7 1 Le w i s E p s t e i n 6 1 4 V e r m o n t s S t . S a n F r a n C A 9 4 1 0 7 ( 4 1 5 ) 8 2 6 - 3 4 8 8 H Ta l l G r a s s 28 Pa r k C o u r t n / o 6 5 5 1 4 3 - 0 4 0 - 0 6 8 US A T r u s t C / O B u r e a u o f I n d i a n A f f a i r s . 2 8 0 0 C o t t a g e W a y S a c r a m e n t o , C A 9 5 8 2 5 Ta l l G r a s s 29 Pe t a l u m a H i l l R d 66 2 6 0 4 7 - 1 3 2 - 0 3 8 Ci t y o w n e d . W i l l b e m o w e d b y P u b l i c W o r k s . Ta l l G r a s s Up d a t e d 5 . 1 8 . 2 0 1 7 Ex h i b i t A t o t h e R e s o l u t i o n : We e d A b a t e m e n t 2 0 1 7 Pr o p e r t i e s L i s t - P o t e nt i a l M i t i g a t i o n S i t e s # S t r e e t N a m e S t r e e t # A P N C o m m e n t S t a t u s D o n e Notes 30 Pe t a l u m a H i l l R d 0 15 9 - 5 5 0 - 0 0 9 Un i v e r s i t y D i s t r i c t L L C , C / o B r o o k f i e l d B a y A r e a H o l d i n g s , 5 0 0 L a G o n d a W a y , S t e 1 0 0 , D a n v il l e , C A 94 5 2 6 Ta l l G r a s s 31 Pr o f e s s i o n a l C e n t e r C t 3 1 0 1 4 3 - 4 9 0 - 0 2 2 Ge o r g e K o k a l i s 3 6 L i s b o n S t r e e t S a n R a f a e l , C A 9 4 9 0 1 ( 4 1 5 ) 3 8 3 - 2 4 9 1 w k ( 4 1 5 ) 2 6 0 - 4 6 5 1 c e l l Ta l l G r a s s 32 R. P . E x p r e s s w a y 3 8 0 1 4 3 - 3 9 1 - 0 8 7 Ph a n L L C , 3 8 0 R o h n e r t P a r k E x w y , R P C A 9 4 9 2 8 Mowed 33 R. P . E x p r e s s w a y 0 1 4 3 - 3 9 1 - 0 8 9 Ph a n L L C , 3 8 0 R o h n e r t P a r k E x w y , R P C A 9 4 9 2 8 Mowed 34 R. P . E x p r e s s w a y 0 1 4 3 - 3 9 1 - 0 9 4 Va c a n t C i t y L a n d , R o h n e r t P K C Y C o m m u n i t y D e v e l , 6 7 5 0 C o m m e r c e B l v d . R P Ta l l G r a s s 35 R. P . E x p r e s s w a y 0 1 5 9 - 5 5 0 - 0 0 2 Va s t O a k P r o p e r t i e s . P O B O X 2 2 4 0 , H e a l d s b u r g , C A 9 5 4 4 8 Co n s t r u c t i o n 36 R. P . E x p r e s s w a y 0 1 5 9 - 5 5 0 - 0 0 3 Va s t O a k P r o p e r t i e s . P O B O X 2 2 4 0 , H e a l d s b u r g , C A 9 5 4 4 8 Co n s t r u c t i o n 37 R. P . E x p r e s s w a y 0 1 5 9 - 5 5 0 - 0 0 4 Un i v e r s i t y D i s t r i c t L L C , C / o B r o o k f i e l d B a y A r e a H o l d i n g s , 5 0 0 L a G o n d a W a y , S t e 1 0 0 , D a n v il l e , C A 94 5 2 6 Ta l l G r a s s 38 R. R . T r a c k s t h r u T o w n R R X R R T r a c k s SM A R T - ( 4 1 5 ) 2 2 6 - 0 8 8 0 J o h n 5 2 1 - 0 7 1 7 Ta l l G r a s s 39 Re d w o o d D r i v e 6 2 5 8 1 4 3 - 3 9 1 - 0 9 1 RP E X P R E S S L L C , C / O J O H N W A R D P A G E J R , 19 7 3 G A R D E N V I E W C I R , S A N T A R O S A C A 9 5 4 0 3 Ta l l G r a s s 40 Re d w o o d D r i v e 6 6 0 3 1 4 3 - 3 9 1 - 0 8 0 Ge o r g e K o k a l i s 3 6 L i s b o n S t r e e t S a n R a f a e l , C A 9 4 9 0 1 ( 4 1 5 ) 3 8 3 - 2 4 9 1 w k ( 4 1 5 ) 2 6 0 - 4 6 5 1 c e l l Ta l l G r a s s 41 Sn y d e r L n . 5 0 4 0 0 4 5 - 2 5 3 - 0 0 7 Co r y C r e a t h & J e n n i f e r L i n d e n , 3 0 5 S c o t t S t . , M il l V a l l e y , C A 94 9 4 1 . P h : 4 1 5 - 3 8 3 - 9 3 6 9 Ta l l G r a s s 42 Sn y d e r L n . 5 1 0 0 0 4 5 - 2 5 3 - 0 1 8 Co t a t i R o h n e r t P a r k U n i f i e d S c h o o l D i st . , 32 5 E C o t a t i Av e . , C o t a t i , C A 9 4 9 3 1 - 4 4 7 6 Ta l l G r a s s 43 So u t h w e s t B l v d 1 1 4 3 - 1 5 0 - 0 5 6 Sw e s t B l v d @ C o m m e r c e T A R I Q M O H A M M A D , 7 7 6 3 B E R N I C E C T , R O H N E R T P A R K C A 9 4 9 2 8 Mowed 44 So u t h w e s t B l v d 4 3 5 1 4 3 - 3 7 0 - 0 1 0 A& J I N V E S T M E N T S L L C , 2 2 1 G A T E W A Y R O A D W E S T S T E 4 0 5 , N A P A C A 9 4 5 5 8 Ta l l G r a s s 45 St a t e F a r m D r i v e 5 9 8 0 1 4 3 - 0 2 1 - 0 8 0 BU C H A N A N B A R B I D T R E T A L , C / O L E W E L L A F BU C H A N A N , P O B O X 1 0 4 0 , RO H N E R T P A R K C A 9 4 9 2 7 - 1 0 4 0 Mowed 46 St a t e F a r m D r i v e 6 0 2 0 1 4 3 - 0 2 1 - 0 7 9 KG T E C H N O L O G I E S I N C , P O BO X 7 0 8 9 , C O T A T I C A 9 4 9 3 1 Mowed 47 St a t e F a r m D r i v e 6 4 0 0 1 4 3 - 0 5 1 - 0 7 2 No r t h B a y C o m m u n i t y , L L C , 2 3 9 2 M o r s e A v e . , I r v i n e , C A 9 2 6 1 4 ( a . k . a . S u n C a l ) Ta l l G r a s s P a r t i a l A b a t e m e n t O n l y 48 Va l l e y H o u s e 1 2 0 0 - 1 3 0 0 0 4 6 - 0 5 1 - 0 4 5 So n o m a M o u n t a i n V i l l a g e L L C , P O B O X 70 8 7 , C O T A T I C A 9 4 9 3 1 7 9 5 - 3 9 9 0 Ta l l G r a s s 49 W i l l i s A v e 46 5 5 0 4 5 - 0 7 5 - 0 2 0 H e l e n R o b e r t s 4 6 4 9 D o w d e l l A v e . , S a n t a R o s a , C A 9 5 4 0 7 Ta l l G r a s s Per Property Owner- will mow by end of May. 50 W i l l i s A v e 46 5 7 0 4 5 - 0 7 5 - 0 0 5 Se b a s t o p o l C O - O P L L C , P O B o x 1 1 2 1 8 , S a n t a R o s a , C A 9 5 4 0 6 Br e t t M a r t i n 5 7 8 - 8 7 2 6 o r 3 2 1 - 3 7 0 7 B e n M a r t i n 4 9 4 - 3 8 4 9 Ta l l G r a s s 51 No n e 0 1 5 9 - 5 5 0 - 0 0 5 Va s t O a k P r o p e r t i e s . P O B O X 2 2 4 0 , H e a l d s b u r g , C A 9 5 4 4 8 Ta l l G r a s s 52 No n e 0 1 5 9 - 5 5 0 - 0 1 0 Un i v e r s i t y D i s t r i c t L L C , C / o B r o o k f i e l d B a y A r e a H o l d i n g s , 5 0 0 L a G o n d a W a y , S t e 1 0 0 , D a n v il l e , C A 94 5 2 6 Ta l l G r a s s 53 No n e 0 0 4 5 - 0 4 1 - 0 1 8 Ci t y o f R o h n e r t P a r k , A t t n : B e t s y H o w z e , 1 3 0 A v r a m A v e . , R P , C A 9 4 9 2 8 / C i t y O w n e d . W il l b e m o w e d b y P W Ta l l G r a s s 53 04 7 - 1 1 1 - 0 6 0 PE N N G R O V E M O U N T A I N L L C , P O B O X 1 4 9 5 5 S A N T A R O S A C A 9 5 4 0 2 Ta l l G r a s s Up d a t e d 5 . 1 8 . 2 0 1 7 NOTICE OF PUBLIC HEARING NOTICE IS HEREBY GIVEN that the City Council of the City of Rohnert Park will be holding a PUBLIC HEARING. WHERE: Rohnert Park City Hall – Council Chamber 130 Avram Avenue Rohnert Park, California WHEN: Tuesday, May 23, 2017, at the hour of 6:00 p.m. or as soon thereafter as the matter is reached on the agenda. PURPOSE: To hear property owner protests regarding the proposed destruction or removal of weeds declared to constitute a public nuisance. NOTICE TO DESTROY WEEDS NOTICE IS HEREBY GIVEN that on May 9, 2017, pursuant to the provisions of Ordinance No. 27 of the City of Rohnert Park, the City Council passed Resolution No. 2017-51 declaring that there exists on numerous lots and parcels of real property within the City of Rohnert Park weeds, dry grass, stubble, brush, litter and other flammable material which endangers the public safety by creating a fire hazard and which the City Council of the City of Rohnert Park found and declared to constitute a public nuisance which should be removed and cleared from each and all of said premises. NOTICE IS FURTHER GIVEN that property owners shall without delay remove all such weeds from their property and the abutting half of the street in front and alleys, if any, behind such property, and between the lot lines thereof as extended, or such weeds will be destroyed or removed and such nuisance abated by the City authorities, or their designated agents or contractors, in which case the cost of such destruction or removal will be assessed upon the lots and lands from which, or from the front or rear of which, such weeds shall have been destroyed or removed; and such cost will constitute a charge upon such lots or lands until paid, and a penalty of ten percent (10%) for nonpayment within the time and in the manner prescribed, plus a penalty of one-half of one percent (.5%) per month for nonpayment of the charge and basic penalty, will attach thereto. All property owners having any objections to the proposed destruction or removal of such weeds are hereby notified to attend a meeting of the City Council to be held on May 23, 2017, at 6:00 p.m. or as soon thereafter as the matter is reached, when and where their objections will be heard and given due consideration. Dated: May 9, 2017 JoAnne Buergler, City Clerk Published: May 12 and May 19, 2017 ITEM NO. 12 1 Meeting Date: May 23, 2017 Department: Development Services Submitted By: Mary Grace Pawson, Director of Development Services Prepared By: Mary Grace Pawson, Director of Development Services Agenda Title: Annual Review of Development Agreements for Sonoma Mountain Village Planned Development, Southeast Specific Plan, University District Specific Plan and Stadium Lands Planned Development; Consider Requested Extensions for University District Development Agreement RECOMMENDED ACTION: Receive the Annual Review of Development Agreements; Provide Direction to Staff to Pursue an Extension Agreement for Provisions of the University District Development Agreement. BACKGROUND: Rohnert Park Municipal Code Section 17.21.050 and Section 9.05 of the Development Agreements (DAs) for the Sonoma Mountain Village Planned Development, the Southeast Specific Plan, and the University District Specific Plan require annual review of the DAs. A similar annual review provision is included in Section 8.5 of the DA for the Stadium Lands Planned Development. The annual review provisions require the developers to provide evidence of good faith compliance with the terms and conditions of their DA. This evidence is then evaluated by the City to confirm the developers’ compliance with the performance standards for their respective projects. If, after its review, the City finds the developer has complied in good faith with the Agreement, the City issues a Certificate of Compliance. If, after an annual review, the City finds that the developer has not complied with the DA, then various remedies may be considered up to and including termination of the DA. The Municipal Code and the various DAs differ slightly in their requirements for the annual review. Some designate the review responsibility to the City Manager and some designate it to the Director of Development Services. Some require the annual review report to be delivered to the Planning Commission and some require that it be delivered to the City Council. This annual review report is intended to be a comprehensive review – it has been prepared by the Development Services Department and reviewed by the City Manager. It will be delivered to the City Council with a copy to Planning Commission for its reference and because follow-up actions may require review by the Planning Commission. ANALYSIS: Staff has solicited and evaluated compliance documentation from each developer and conducted an independent review of each developer’s compliance with the respective DAs. At this time the developers of the Southeast Specific Plan Area and Stadium Lands Planned Development are in compliance with their respective DAs. The developers of the Sonoma Mountain Village Planned Development and the University District Specific Plan are working Mission Statement “We Care for Our Residents by Working Together to Build a Better Community for Today and Tomorrow.” CITY OF ROHNERT PARK CITY COUNCIL AGENDA REPORT ITEM NO. 12 2 with the City to cure defaults related to completing required public improvements. Details on each development are presented below. Sonoma Mountain Village Planned Development: Sonoma Mountain Village is located in southeast Rohnert Park, south of Camino Colegio, west of Bodway Parkway and east of the SMART tracks. The development consists of 175 acres with 1,892 proposed dwelling units including 148 affordable units, 290,000 square feet of commercial space, 234,000 square feet office space, 150 hotel rooms, 35,000 square feet of public space and 29 acres of parks. The developer has indicated that it will be submitting an application to amend its Final Development Plan in the near future, in order to better accommodate mitigation for California Tiger Salamander on the site. The City did not issue a Certificate of Compliance to the developer in 2016 because of issues related to the construction of a required SMART path and soccer field. After extended negotiations, the developer entered into an agreement with SMART to fund SMART’s construction of the required path and put funds on deposit to cover this obligation. The developer also entered into a letter agreement with City where it agreed to construct the required soccer field at Sunrise Park and pay the City $500,000 in liquidated damages for the delay. This letter agreement also contemplates a third amendment to the DA, which will formalize the modified agreements around the soccer field and the SMART path. The City has received one payment of $250,000 towards the liquidated damages total and staff is working with the developer to prepare the third amendment. In early 2017, the developer requested that the City consent to a partial assignment of the DA in order to allow the developer to secure a loan to support development of the project. On April 11, 2017, the City Council consented to this partial assignment provided that the developer deposit $2.55 million with the City, to cover its soccer field obligations. The developer is in the process of finalizing its loan and has not yet deposited the $2.55 million with the City. In addition, while the parties are working on the third amendment to the DA, it has not yet been finalized. In sum, there are still outstanding issues that the developer is in the process of resolving with the City. For these reasons, staff is not currently able to issue a Certificate of Compliance to the Sonoma Mountain Village developer. This issue may be revisited, at the developer’s request, once the developer is in compliance with the terms of the DA and has executed a third amendment to the DA. Southeast Specific Plan: The Southeast Specific Plan is located north of Valley House Drive, east of Bodway Parkway and west of Petaluma Hill Road. It comprises 80 acres with 475 dwelling units of low density, medium density and mixed use including 72 affordable units. The development also includes 10,000 square feet of commercial space and a six acre park. In 2016, the developer completed the processing of its first final map, creating 107 residential lots. As required by the DA, it offered for dedication a public park and water tank site. It also entered into a letter agreement with the City and the Housing Land Trust of Sonoma County to satisfy its affordable housing obligations for the first phase of its development. The developer began construction of onsite and in-tract utility improvements and is working to finalize its CC&Rs and improvement plans. Staff anticipates that construction of residential units will begin in 2017. The developer of the Southeast Specific Plan Area is currently in compliance with the terms of its DA and a Certificate of Compliance will be issued. ITEM NO. 12 3 University District Specific Plan: The University District Specific Plan is located north of Rohnert Park Expressway, south of Keiser Avenue, west of Petaluma Hill Road and east of Snyder Lane. It comprises 297 acres with 1,645 dwelling units including 218 affordable units, a maximum of 100,000 square feet of commercial space and 74 acres of parks and open space. The following actions were completed in 2016 to conform to the requirements of the DA.  128-acres east of Petaluma Hill Road (the “Anderson 128) was offered to and accepted by the City, providing a site for a new water tank and regional detention basin and connectivity to Crane Creek Regional Park.  Funding for construction of the potable water tank (over $6,000,000 to cover construction costs and contingency) was provided to the City.  Funding for construction of a Rohnert Park Expressway monument sign ($200,000) was provided to the City.  Funding for a regional traffic fee study ($100,000) was provided to the City.  Regional traffic fee payments and maintenance annuity fund payments were made as residential building permits and certificates of occupancy were issued.  The City issued a permit for the Rohnert Park Expressway widening on May 26, 2016, which initiated the commencement of construction.  The City issued a permit for Twin Creeks Park on May 26, 2016, which initiated the commencement of construction. Provided that work begins during the summer construction season, which it did, the DA requires that both the Rohnert Park Expressway widening and Twin Creeks Park projects be completed within one year of the commencement of construction. On February 21, 2017, the developer acknowledged it would not be able to complete either of these projects within a year and requested an extension from the City. While the developer is requesting a 120-day extension, it anticipates completing the Twin Creeks Park construction and commencing the landscape establishment period on June 19, 2017. It anticipates completing the Rohnert Park Expressway widening by mid-August. Staff has reviewed the developer’s request and is recommending extensions be granted, subject to the terms outlined below. For Twin Creeks Park, staff is recommending a 120-day extension, subject to payment by developer of liquidated damages in the amount of $5,000 per day for each working day beyond May 26, 2017 that the park is not completed. Anticipated damages would be $110,000 assuming completion on June 19. The developer has expedited its work on the park and staff believes it will finish on or before June 19. For Rohnert Park Expressway, staff is recommending a 120-day extension with two separate triggers for liquated damages. The first trigger is completion of the utility, streetlight and sidewalk improvements on the north side of Rohnert Park Expressway between Snyder Lane and Kerry Road. Staff recommends requiring that the developer pay liquidated damages of $5,000 per day for every day beyond May 26, 2017, that these facilities are delayed. Completion of these facilities will allow the City to open a safe pedestrian path of travel from Snyder Lane to the University District. Staff believes the developer can achieve this milestone schedule goal and that liquidated damages are appropriate if this important connection is delayed beyond the one-year completion date required by the DA. ITEM NO. 12 4 The second trigger is completion of all paving, traffic signals and remaining streetlight, utility and sidewalk improvements on the north side of Rohnert Park Expressway, including improvements within the County’s right-of-way. Staff is recommending that the developer be allowed an extension until August 12, 2017 for this part of the work, without liquidated damages. Staff is making this recommendation in order to allow significant traffic control operations, associated with this portion of the work, to occur while school is out of session, which will minimize impacts on the community. Based on the developer’s current schedule, staff does not anticipate it will need to collect liquidated damages, however the potential penalty is appropriate if the work continues beyond August 12, 2017 because the delay will result in significant inconvenience for the public. Staff is requesting that Council direct staff to work with the developer on a letter agreement to memorialize these extensions and the milestone completion dates that the developer must meet in order to avoid liquidated damages. Because the developer has not completed two critical public improvements in a timely fashion, the developer is not in compliance with the terms of the DA and the City cannot issue a Certificate of Compliance. This issue may be revisited, at the developer’s request, once the developer has completed the Twin Creeks Park and Rohnert Park Expressway improvements. If these improvements are not completed within any agreed upon extension period, staff will refer the matter and additional options to secure compliance to the Planning Commission and the City Council as outlined in the Municipal Code and Section 9.05 of the DA. Stadium Lands Planned Development: The Stadium Lands Planned Development Area is located east of Labath Avenue, west of Dowdell Avenue and north of Martin Avenue extension. It comprises 30 acres with 463 dwelling units, a maximum of 140,000 square feet of commercial space and an approximately 0.7 acre park. On January 24, 2017, the City Council approved a development agreement with Stadium RP-Development Partners, LLC covering a little over 12 acres of the planned development area. This DA governs the development of a hotel, commercial site and a multi-family residential complex along with the proposed park. At this point, it is premature to conduct an “annual review” of this new DA but it will be included in the 2018 Annual Review of Development Agreements. STRATEGIC PLAN ALIGNMENT: This action is consistent with Strategic Plan Goal D – Continue to Develop a Vibrant Community. The Annual Report on the Development Agreements is an important part of implementing the terms of these agreements over time. OPTIONS CONSIDERED: With respect to the annual review, none. Providing the annual review is required by the Municipal Code and the various Development Agreements. With respect to the proposed extension agreement for the University District DA, the Council could direct staff to pursue different liquidated damages provisions or breach remedies rather than pursue extensions. FISCAL IMPACT/FUNDING SOURCE: There is no fiscal impact associated with receiving this Annual Report. Costs associated with implementing the various Development Agreements, including the cost of reporting, are covered by the Reimbursement Agreements that the City has with each developer. Department Head Approval Date: 05/04/2017 Finance Director Approval Date: NA City Attorney Approval Date: 05/16/2017 City Manager Approval Date: 05/18/2017   ITEM NO. 14 1   Meeting Date: May 23, 2017 Department: Administration/Human Resources Submitted By: Darrin Jenkins, City Manager Prepared By: Victoria Perrault, Human Resources Director Agenda Title: Consideration and Adoption of Resolution Approving Second Amendment to 2014 Employment Agreement Between the City of Rohnert Park and Brian Masterson for Public Safety Director Services RECOMMENDED ACTION: Approve the attached resolution approving the Second Amendment to the 2014 Employment Agreements between the City of Rohnert Park and Brian Masterson for Public Safety Director Services. BACKGROUND: On April 25, 2017 the City Council approved the Outline of Certain Conditions of Employment, Fringe Benefits, and Salary for the Management Unit (“Management Unit Outline”) effective April 30, 2017 to June 30, 2021. It provides for the following salary adjustments: five and one half percent (5.5%) base salary increase effective April 30, 2017; two and one half percent (2.5%) increase to base salary effective the first day of the first pay period which includes July 1, 2018; two and one half percent (2.5%) increase to base salary effective the first day of the first pay period which includes July 1, 2019; and three percent (3%) increase to base salary effective the first day of the first pay period which includes July 1, 2020. Mr. Masterson’s existing employment agreement provides for salary adjustments specified in the Management Unit Outline. ANALYSIS: In order to provide Mr. Masterson with the same salary adjustments provided to other management employees who do not have employment contracts and who are covered by the Management Unit Outline, it is necessary to amend his existing Employment Agreement. The attached employment agreement amendment provides for a five and one half percent (5.5%) base salary increase effective April 30, 2017; two and one half percent (2.5%) increase to base salary effective the first day of the first pay period which includes July 1, 2018; two and one half percent (2.5%) increase to base salary effective the first day of the first pay period which includes July 1, 2019; and three percent (3%) increase to base salary effective the first day of the first pay period which includes July 1, 2020. These salary adjustments are specified in dollar amounts in each of the Amendments to Employment Agreements. In addition to the salary adjustment referenced above, language has been incorporated to comply with Government Code Sections 53243.4 and to reaffirm severance payments established in the original employment agreement that will be provided in the event the City terminates the contract without cause. Mission Statement “We Care for Our Residents by Working Together to Build a Better Community for Today and Tomorrow.” CITY OF ROHNERT PARK CITY COUNCIL AGENDA REPORT   ITEM NO. 14 2   Lastly, a provision was added to provide a uniform maintenance allowance of $1,080 annually. This provision is added in lieu of issuing uniforms. The Council is asked to approve attached Resolution which approves the Second Amendment to 2014 Employment Agreement and authorizes the City Manager to execute the attached Second Amendment to 2014 Employment Agreement. STRATEGIC PLAN ALIGNMENT: Approval of this item would ensure compliance with the City’s adopted Strategic Plan by safeguarding the effective delivery of public services which aligns with Goal C. OPTIONS CONSIDERED: 1. Recommended Option: Staff recommends approving this item as this executive position is vital to ensuring the efficient and effective delivery of public service to the Rohnert Park community. 2. Alternative Option: Council could opt not to amend the employment agreement, but staff does not recommend this option as it would negatively affect service levels and compromise organizational efficiency. FISCAL IMPACT/FUNDING SOURCE: This salary adjustment is included in the City wide salary adjustment projections for fiscal year 2017/18. There is no additional fiscal impact. Department Head Approval Date: N/A City Manager Approval Date: May 11, 2017 City Attorney Approval Date: May 11, 2017 Attachments (list in packet assembly order): 1. Resolution Approving the Second Amendment to the Employment Agreement Between the City of Rohnert Park and Brian Masterson for Public Safety Director Services. 2. Second Amendment to 2014 Employment Agreement – Brian Masterson   RESOLUTION NO. 2017-068 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK APPROVING THE SECOND AMENDMENT TO THE 2014 EMPLOYMENT AGREEMENT BETWEEN THE CITY OF ROHNERT PARK AND BRIAN MASTERSON FOR PUBLIC SAFETY DIRECTOR SERVICES WHEREAS, on April 1, 2014, City entered into the 2014 Employment Agreement with Brian Masterson (“Employment Agreement”) to retain his services as the Public Safety Director; WHEREAS, on March 28, 2017 the City entered into a First Amendment to the Employment Agreement with Brian Masterson to modify the term of the Employment Agreement; WHEREAS, the City and Brian Masterson desire to further amend the Employment Agreement to modify the terms and conditions of Brian Masterson’s employment as Public Safety Director; NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Rohnert Park hereby approves the Second Amendment to Employment Agreement between the City of Rohnert Park and Brian Masterson for Public Safety Director Services in substantially the same form attached hereto as Exhibit "A," which is incorporated herein by this reference. BE IT FURTHER RESOLVED, that the City Manager is authorized and directed to execute same for and on behalf of the City of Rohnert Park. DULY AND REGULARLY ADOPTED by the City Council of the City of Rohnert Park this 23rd day of May, 2017.  CITY OF ROHNERT PARK _________________________ Jake Mackenzie, Mayor ATTEST: ____________________________________ JoAnne M. Buergler, City Clerk Attachment: Exhibit A AHANOTU: _________ BELFORTE:  _________ CALLINAN: _________ STAFFORD:  _________ MACKENZIE: _________  AYES:  (          )     NOES:  (          )   ABSENT:  (          )   ABSTAIN:  (          ) EXHIBIT A SECOND AMENDMENT TO 2014 EMPLOYMENT AGREEMENT Between CITY OF ROHNERT PARK AND BRAIN MASTERSON 1. PARTIES AND EFFECTIVE DATE The parties to this Second Amendment to 2014 Employment Agreement (“Second Amendment”) are the City of Rohnert Park (“City”) and Brain Masterson (“Employee”). The effective date of this Second Amendment shall be April 30, 2017. 2. PURPOSE The parties have previously entered into a 2014 Employment Agreement between City of Rohnert Park and Brain Masterson (“Employment Agreement”) effective as of April 1, 2014. On March 28, 2017 the City Council approved a First Amendment to the 2014 Employment Agreement. The 2014 Employment Agreement as amended by the First Amendment to the Employment Agreement shall be referred to as the “Amended Employment Agreement.” The City and Employee hereby desire to amend the Amended Employment Agreement as set forth below. 3. AMENDMENT SECTION 3 (a) Section 3(d)(1) of the Amended Employment Agreement is hereby modified in its entirety to read as follows: 3. RESIGNATION AND TERMINATION. (d) Severance Benefits (1) In the event Employee is terminated from employment without cause while still willing and able to perform his duties under this Agreement, then City agrees to pay Employee a lump sum cash payment equal to six (6) months of his base monthly compensation. All payments required under this Section 3(d)(1) are subject to and shall be interpreted to comply with the limitations set forth in Government Code Section 53260. In addition, City shall extend to Employee the right to continue health insurance as may be required by and pursuant to the terms and conditions of the Consolidated Omnibus Budget Act of 1986 (COBRA). Masterson Second Amendment to Employment Agreement City of Rohnert Park Page 2 of 4  Page 2 of 4 (b) The following shall be added as Section 3(e) to the Amended Employment Agreement: 3. RESIGNATION AND TERMINATION. (e) Reimbursement to the City (1) If this Agreement is terminated, any cash settlement related to the termination that Employee may receive from the City shall be fully reimbursed to the City if Employee is convicted of a crime involving an abuse of his office or position as defined by Government Code section 53243.4. (2) If any express or implied provision of this Agreement, the Municipal Code of the City, or any policy or practice of the City provide paid leave salary to Employee pending an investigation, said paid leave salary shall be fully reimbursed by the Employee to the City if Employee is convicted of a crime involving an abuse of his office or position as defined by Government Code section 53243.4. (3) If any express or implied provision of this Agreement, the Municipal Code of the City, or any policy or practice of the City provide for payment of funds for the legal criminal defense of Employee, said funds paid for his legal defense shall be fully reimbursed by Employee to the City if Employee is convicted of a crime involving an abuse of his office or position as defined by Government Code section 53243.4. 4. AMENDMENT SECTION 4 (a) Section 4.A (1) (a) of the Amended Employment Agreement is deleted in its entirety and the remaining sections are re-numbered. (b) Section 4.A (1) (b) of the Amended Agreement is hereby modified in its entirety to read as follows: 4. COMPENSATION (a) Employee shall be entitled to the following salary adjustments: $180,781.61 base salary (which represents a 5.5% increase from the previous year) effective April 30, 2017; $185,301.15 base salary (which represents a 2.5% increase from the previous year) effective the first day of the first pay period which includes July 1, 2018; $189,933.68 base salary (which represents a 2.5% increase from the previous year) effective the first day of the first pay period which includes July 1, 2019; $195,631.69 base salary (which represents a 3.0% increase from Masterson Second Amendment to Employment Agreement City of Rohnert Park Page 3 of 4  Page 3 of 4 the previous year) effective the first day of the first pay period which includes July 1, 2020. (c) The following shall be added as Section 4(i) to the Amended Employment Agreement: (i) The City will provide a Uniform Maintenance Allowance of $1,080 per calendar year. The Uniform Maintenance Allowance shall be paid monthly, and the City will comply with CalPERS’ requirements for reporting these allowances. Under current CalPERS regulations, uniform allowances are to be reported to CalPERS only for Classic members. The uniform maintenance allowances shall be prorated for the 2017 calendar year to reflect the effective date of the increase to the allowance provided by this section. 5. GENERAL PROVISIONS A. This Second Amendment consists of pages 1 through 4 inclusive and constitutes the entire understanding and agreement of the parties and supersedes all negotiations or previous agreements between the parties with respect to all or any part of the terms discussed in this Second Amendment. B. Except as specifically modified herein, all remaining terms and obligations set forth in the Amended Employment Agreement between the City of Rohnert Park and Employee shall remain in full force and effect. CITY OF ROHNERT PARK By:_____________________________ Jake Mackenzie, Mayor Dated:___________________________ Per Reso. No. 2017-___ adopted______. EMPLOYEE By:______________________________ Brain Masterson Dated:___________________________ Masterson Second Amendment to Employment Agreement City of Rohnert Park Page 4 of 4  Page 4 of 4 APPROVED AS TO FORM: By:__________________________ Michelle Marchetta Kenyon City Attorney Attest: By: _________________________ City Clerk