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2017/07/25 City Council Resolution 2017-092RESOLUTION NO. 2017-092 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK APPROVING A STANDARD FORMAL REIMBURSEMENT AGREEMENT AND AUTHORIZING THE CITY MANAGER TO EXECUTE WHEREAS, In the past, the City has established formal reimbursement agreements with Developers for large scale projects in order to streamline the invoicing process and plan reviews; and WHEREAS, the formal reimbursement agreement provides clarity about the responsibilities of both the Project applicant and the City in terms of invoicing, payments, deposits, and costs incurred by the City eligible for reimbursement, as well as consolidates developer deposits; and WHEREAS, allowing staff to execute this formal reimbursement agreement as needed will streamline the cost -recovery effort for the City; and WHEREAS, approval of a formal reimbursement agreement and payment of eligible costs does not construe a commitment by the City to grant or issue any project approvals or any other preliminary or formal approvals in connection with a project; and NOW THEREFORE BE IT RESOLVED by the City Council that the City Manager is hereby authorized and directed, as needed, to execute the standard formal reimbursement agreement attached hereto as Exhibit A and incorporated herein, subject to minor revisions approved the City Attorney or City Manager. BE IT FURTHER RESOLVED that upon receipt of developer reimbursements, the Finance Director is authorized to make appropriations and increase budgeted revenue as necessary to cover the costs of the processing the Project. DULY AND REGULARLY ADOPTED this 25th day of July, 2017. CITY OF ROHNERT PARK Jake Mac �enzie, Mayor ATTEST: Caitlin Saldanha, Deputy City Clerk Attachment: Exhibit A AHANOTU: IQ BELFORTE: ktrltCALLINAN: � { STAFFORD: 4 e MACKENZIE: P AYES: ( 'A ) NOES: ( 0 ) ABSENT: ( I ) ABSTAIN: ( C)) Exhibit A to Resolution REIMBURSEMENT AGREEMENT THIS REIMBURSEMENT AGREEMENT ("Agreement") is made and entered into as of the_ day of July, 2017, by and among the City of Rohnert Park ("City"), a municipal corporation, and ("Developer"), a California Limited Liability Company. RECITALS Developer has submitted or plans to submit an application for development of within in Rohnert Park, California at , APN of application is _("Proposed Project"). The project name at time The site is illustrated in Attachment A, which is attached hereto and incorporated by this reference. Development of the Proposed Project requires or contemplates the following approvals, documents and processing activities (collectively, "Project Approvals"): (1) <Insert items here> A. Prior to the execution of this Agreement, City and Developer had several Informal Reimbursement Agreements ("IRA"), pursuant to which City has been processing the Proposed Projects, and pursuant to which the Developer has deposited with City $<Insert Deposit Amount> to serve as a deposit for City's costs incurred in processing the Project Approvals. As of <Insert date here>, City has incurred $<dollar amount> in processing costs. Continued processing of the Proposed Projects and processing of the Project Approvals will require City to incur various costs and expenses including but not limited to staff time, consultant costs, legal fees and costs, and other assorted costs to process the Proposed Project. C. In order to facilitate processing of the Project, Developer desires to reimburse City for all of its costs in connection with the Project Approvals, including but not limited to: legal fees, staff time and consultant costs incurred in connection with the Project Approvals; costs unbilled and/or unreimbursed by Developer in connection with Project Approvals covered by this Reimbursement Agreement; and any litigation costs incurred as a result of the processing of the Proposed Project and any Project Approvals. D. The parties to this agreement wish to establish the terms and conditions of such reimbursement obligation. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals and for other good and valuable consideration, the parties hereby agree as follows: Exhibit A to Resolution Purpose of Agreement. The purpose of this Agreement is to provide for payment by Developer of all legal, staff and consultant costs directly or indirectly incurred by City in connection with the Proposed Project, including legal defense costs, if any. 2. Developer Reimbursement Obligation. Developer shall reimburse City for the following costs (collectively, "Eligible Costs") incurred in connection with the Proposed Project (including any and all staff and or legal costs incurred following approval of the Proposed Project to process the project to completion): a. City staff time, processing costs, consultant costs and legal fees associated with processing and implementing all Project Approvals and Mitigation Measures including, but not limited to: legal fees and costs incurred in connection with the legal defense of any Project Approvals; legal fees and costs incurred in connection with the negotiation, drafting, implementation, and defense of the proposed Development Agreement; and fees and costs payable to outside consultants in connection with the negotiations of the proposed Development Agreement. b. A 7% administrative fee charged on costs of outside consultants and legal services which are included in subsections (a) above; and c. Fees and costs which City has incurred but which have either not yet been billed for reimbursement or which have not yet been reimbursed to the City. The City has made a good faith estimate to summarize all such fees and costs more particularly described in Attachment B, which is attached hereto and incorporated by this reference. The parties acknowledge that the figures on Attachment B constitute the City's good faith effort to summarize all such fees and costs, and Developer agrees that fees or costs which have inadvertently been omitted from Attachment B, as well as those fees and costs incurred between <Insert Date that Attachment B was updated> and effective date of this Agreement, and are subsequently submitted to Developer, shall be construed as Eligible Costs pursuant to this subsection c. 3. Payment of Eligible Costs. City shall submit to Developer a copy of each invoice, bill, demand or other evidence ("Invoice") that the City has incurred for Eligible Costs or other reasonable substantiation of such Eligible Costs. Each such Invoice of Eligible Costs shall be paid in full by Developer, without deduction or offset, within thirty (30) calendar days of the date of the Invoice. Developer covenants and agrees that failure to pay such Eligible Costs to City in full within thirty (30) calendar days of the date of such Invoice will result in a Late Charge in accordance with Section 4 of this Agreement, as well as in the cessation of processing the Proposed Project in accordance with Section 9 of this Agreement. Developer further covenants and agrees that, if as a result of a failure to pay an Invoice of Eligible Costs, City ceases processing the Proposed Project in accordance with Section 9, Developer shall not directly or indirectly initiate any litigation against City or its employees, agents, or volunteers for the cessation or delay in processing the Proposed Project. 4. Late Charge. Developer acknowledges that the late payment of any Eligible Costs will cause City to incur additional costs, including administration and collection costs and processing and accounting Exhibit A to Resolution of expenses ("Delinquency Costs"). If City has not received payment of all Eligible Costs within thirty (30) calendar days of the date of the Invoice, the Invoice is considered overdue and Developer shall immediately be charged a late charge of five percent (5%) of the delinquent amount. The City is then authorized to pay such Late Charge from the Security Deposit along with the amount of the unpaid Invoice of Eligible Costs in accordance with Section 5. City and Developer recognize that the expenses that City shall suffer as a result of Developer's failure to make timely payments is difficult to ascertain and agree that said five percent (5%) late charge represents a reasonable estimate of the Delinquency Costs that would be incurred by City. City's acceptance of any such late charge does not equate with a waiver of Developer's default with respect to the overdue amount, or prevent City from exercising any rights and remedies available under this Agreement. 5. Security Deposit. Upon signature of this Agreement, Developer shall deposit with City the sum of <Insert Deposit Amount> ($XXXX) in cash or other immediately available funds ("Security Deposit"), as security for Developer's obligation to pay all Eligible Costs, as provided herein. The parties acknowledge that, in connection with the IRA, Developer deposited <insert dollar amount deposited> ($<numeric dollar amount deposited>) cash with the City, of which $<cost incurred amount> has been used to pay for eligible costs incurred by the City through <last date of cost incurred>. Funds remaining in the IRA deposit as of the date of signature of this Agreement shall be applied to the Security Deposit required by this Agreement. To the extent additional funds are required to meet the $<Insert Deposit Amount> Security Deposit amount required by this Agreement, Developer shall deposit such additional amounts upon signature of this Agreement. The Security Deposit shall be subject to the following: a. Developer agrees that if Developer does not pay when due the full amount of each Invoice of Eligible Costs as provided in Section 3 above, then the City is authorized to pay such amount from the Security Deposit, which may include a Late Charge in accordance with Section 4 b. If the City withdraws from the Security Deposit, the City shall immediately notify the Developer in writing that it has used the Security Deposit to pay all or a portion of the bill, invoice, demand or other evidence of Eligible Costs, and the Developer shall thereafter have fourteen (14) calendar days from the date of such written notice to deposit with City, in cash, an amount necessary to restore the Security Deposit to its full amount of $<Insert Security Deposit Amount>. If the Developer fails to replenish the Security Deposit within said due date, City shall have no obligation to continue processing the Proposed Project or to incur any additional Eligible Costs. c. If the amount of the unpaid Invoice of Eligible Costs and Late Charge exceeds the available funds in the Security Deposit, the City shall immediately notify the Developer in writing that it has used the Security Deposit to pay all or a portion of the bill, invoice, demand or other evidence of Eligible Costs, and the Developer shall have fourteen (14) calendar days from the date of such written notice to deposit with City, in cash, an amount necessary to restore the Security Deposit to its full amount of $<Insert Security Deposit Amount>, plus the full amount of the unpaid Invoice of Eligible Costs and applicable Late Charge. If the Developer Exhibit A to Resolution fails to fully replenish the Security Deposit, pay the full Invoice of Eligible Costs and applicable Late Charge within said due date, City shall have no obligation to continue processing the Proposed Project or to incur any additional Eligible Costs. d. Developer further covenants and agrees that, if as a result of reduction of the Security Deposit to zero dollars or failure to replenish, City ceases processing the Proposed Project in accordance with Section 9, Developer shall not directly or indirectly initiate any litigation against City or its employees, agents, or volunteers for the failure to process or for delay in processing the Proposed Project following such reduction or failure to replenish. e. If this Agreement is terminated as provided in Section 8 below and all activities related to Project Approvals have ceased and the City is not continuing to incur costs related to the project, City shall return to Developer within ninety (90) calendar days following the effective date of termination that portion of the Security Deposit that has not been expended or committed by City as provided herein, if any. 6. No Commitment as to Future Approvals. Nothing in this Agreement shall be construed as a commitment to grant or issue any Project Approvals or any other preliminary or formal approvals in connection with the Proposed Project or to enter into the proposed Development Agreement or any other agreements. Developer acknowledges and agrees that nothing in this Agreement limits City's discretion, in any manner, with respect to any aspect of the Proposed Project, the proposed Development Agreement, or the proposed real estate transaction and fee credit agreements. Developer agrees that it shall remain obligated to pay all Eligible Costs, regardless of whether any aspect of the Proposed Project is approved and regardless of whether City and Developer enter into the proposed Development Agreement or any other agreements. Notwithstanding the aforementioned, City shall in good faith expeditiously and with all diligence process the Project Approvals. Indemnity. Developer shall, to the greatest extent authorized by law, defend (with counsel approved by City, which approval shall not be unreasonably withheld), indemnify, and hold harmless the City, its officials, employees, volunteers and agents from and against any and all loss, liability, expenses, claims, costs (including reasonable attorneys' fees), suits and damages of every kind nature, and description, directly or indirectly arising from any third party legal challenge to the Project Approvals, or the implementation of this Agreement. Developer may defend against any such third party legal challenge as a Real Party in Interest using counsel of Developer's choice, and Developer and City agree to cooperate in the joint defense of the Project Approvals or the implementation of this Agreement. Developer's indemnity obligations under this Section 7 shall survive the expiration or termination of this Agreement. 8. Termination. Developer may terminate this Agreement by providing thirty (30) calendar days written notice to City. If Developer is in default of any of its obligations under this Agreement and fails to cure such default within fourteen (14) calendar days following written notice from City, then City may terminate this Agreement by notice to Developer and, thereafter, City shall have no further obligation to process Project Approvals for the Proposed Project or to continue with negotiation and drafting of the proposed Development Agreement or any other agreements. Developer shall be Exhibit A to Resolution responsible for the payment of Eligible Costs incurred by City up to and including the date of termination regardless of which party terminates this agreement. 9. Cessation of Processing. Developer acknowledges and agrees that City may, in its sole discretion, cease processing the Proposed Project, the Project Approvals , and all negotiations in connection with the proposed Development Agreement or any other agreements , in any of the following events: a. This Agreement is terminated by either party following notice and expiration of any applicable cure periods as provided herein; or b. Developer fails to pay such Eligible Costs to City in full within thirty (30) calendar days of the date of such Invoice; or c. The Deposit amount is reduced to zero and Developer fails to replenish the Deposit upon request by City. Developer further covenants and agrees that if City ceases processing the Project Approvals for any of the foregoing reasons, Developer shall not directly or indirectly initiate any litigation against City or its employees, agents, or volunteer for the failure to process or for delay in processing such applications following such Agreement termination. 10. Attorneys' Fees. If any legal action is brought by either party to interpret or enforce any terms or provisions of this Agreement, the prevailing party shall be entitled to its reasonable attorneys' fees and costs. 11. Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to the matters set forth herein. Any amendments, modifications, or changes to this Agreement shall be in writing and signed by both parties. 12. Waivers. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver or a waiver of a subsequent breach of the same or any other provision of this Agreement. 13. Severability. If any provision of this Agreement or the application of any such provision shall be held by a court of competent jurisdiction to be invalid, void or unenforceable to any extent, the remaining provisions of this Agreement and the application thereof shall remain in full force and effect and shall not be affected, impaired or invalidated. 14. CEQA Processing. Developer acknowledges and agrees that the City is the lead agency under CEQA, that the environmental review document(s), including but not limited to, an Initial Study, Environmental Impact Report (including project or program level review, supplemental EIR, subsequent EIR, or addendum), mitigated negative declaration, negative declaration, and/or notice of exemption, must reflect City's independent judgment and that City retains full discretion with respect to all findings to be made in connection therewith. 15. Successors and Assigns. This Agreement shall be binding upon the parties hereto and their respective heirs, legal representatives, successors and assigns. Exhibit A to Resolution 16. Jurisdiction. This Agreement shall be administered and interpreted under the laws of the State of California without regard to its choice of law rules. Jurisdiction and venue of litigation arising from this Agreement shall be in the County of Sonoma, State of California. 17. Notices. Notices required by this Agreement shall be personally delivered, mailed, postage prepaid, or mailed via nationally recognized overnight courier as follows: To the Developer: XXXXX with a copy to: XXXXX and to: XXXXX To the City: XXXXX with a copy to: Burke, Williams & Sorensen, LLP 1901 Harrison Street, 9th Floor Oakland, CA 94612 Attn: Michelle Marchetta Kenyon Tel: (510) 273-8780 Fax: (510) 839-9104 Notices given by personal delivery shall be effective immediately. Notices given by overnight courier shall be effective upon the date of delivery. Notices given by mail shall be deemed to have been delivered five days after having been deposited in the United States mail. Any party may change its address for notice by written notice to the other party in the manner provided in this paragraph 17. 18. Interpretation. The titles to the sections of this Agreement are not a part of this Agreement and shall have no effect upon the construction or interpretation of any part of this Agreement. As used in this Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others where and when the context so dictates. The word "including" shall be construed as if followed by the words "without limitation." This Agreement is the product of negotiations among the parties, and it shall not be construed as if it had been prepared by one of the parties, but rather as if all of the parties have prepared the same. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting this Agreement. 19. Authority. Each person executing this Agreement covenants and warrants that (i) the party on whose behalf he or she is signing is duly incorporated or otherwise established or formed and validly existing under the laws of its state of incorporation, establishment or formation, (ii) the party has Exhibit A to Resolution and is duly qualified to do business in California, (iii) the party has full corporate, partnership, trust, association or other power and authority to enter into this Agreement and to perform all of its obligations hereunder, and (iv) each person (and all of the persons if more than one signs) signing this Agreement is duly and validly authorized to do so. 20. Counterparts. This Agreement may be executed in counterparts. 21. Assignment of Claims. To the extent City determines that it may have Claims against any Project Consultant in connection with the Proposed Project, City may, upon written request by Developer, assign such Claims to Developer. As used herein, "Project Consultant" means any consultant, contractor, or other third party whose work product gives rise to any Eligible Cost or who is hired by City in connection with the Project Approvals; and "Claims" means any and all claims, potential claims, causes of action, and potential causes of action for breach of contract and/or professional negligence, regardless of whether such claims or causes of action accrue prior to or after the effective date of this Agreement. [REMAINDER OF PAGE LEFT INTENTIONALLY BLANK] Exhibit A to Resolution IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. CITY: CITY OF ROHNERT PARK, a Municipal Corporation City Manager Per Resolution No. adopted by the Rohnert Park City Council at its meeting of July 25, 2017. APPROVED AS TO FORM: City Attorney ATTEST: City Clerk DEVELOPER: xxxxx (Signature) (Date) (Print name and title) Exhibit A to Resolution ATTACHMENT A PROPERTY DESCRIPTION <PROPERTY ADDRESS> <APN> Exhibit A to Resolution ATTACHMENT B PROJECT EXPENSES INCURRED [INSERT PROJECT EXPENSES SUMMARY HERE]