2015/08/11 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, August 11, 2015
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 August 11, 2015
for City Council/RPFA/CDC Successor Agency Page 2 of 4
1. CITY COUNCIL/RPFA/SUCCESSOR AGENCY JOINT REGULAR MEETING
- CALL TO ORDER/ROLL CALL
(Callinan __ Mackenzie__ Stafford __ Belforte __ Ahanotu __)
2. PLEDGE OF ALLEGIANCE
3. PRESENTATIONS
A. Mayor’s Certificate of Recognition: Honoring Pediatric Dentist Dr. Jamie Sahoura
for her Recent Fundraising Efforts Benefitting the Leukemia and Lymphoma
Society
4. DEPARTMENT HEAD BRIEFING
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/RPFA/Successor Agency Joint Regular Meeting, July 28, 2015
B. Acceptance of Reports for:
1. City Bills/Demands for Payment dated August 11, 2015
2. Housing Successor Agency- Cash Report for Month Ending June 2015
3. Successor Agency – Cash Report for Month Ending June 2015
4. RPFA- Cash Report for the Month Ending June 2015
C. City Council Resolutions for Adoption:
1. 2015-130 Delegating to the City Manager Authority to Reject Claims
Under the California Government Claims Act, Pursuant to
Government Code Section 935.4
2. 2015-131 Authorizing and Approving the City of Rohnert Park
Updating and Reaffirming the City’s Policy and Complaint
Procedure against Harassment, Discrimination and Retaliation
D. Accept Resignation from Mobile Home Rent Appeals Board Member Diane
Broadhead and Direct Staff to Send Letter of Appreciation
Council Motion/Vote
City of Rohnert Park Joint Regular Meeting Agenda August 11, 2015
for City Council/RPFA/CDC Successor Agency Page 3 of 4
7. Sonoma County PACE (Property Assessed Clean Energy) Financing Marketplace
A. Staff Report
B. Public Comments
C. Resolutions for Adoption:
1. 2015-132 Consenting to the Inclusion of Properties within the City’s
Jurisdiction in the California Hero Program to Finance
Distributed Generation Renewable Energy Sources, Energy
and Water Efficiency Improvements and Electric Vehicle
Charging Infrastructure and Approving the Related
Amendment to a Certain Joint Powers Agreement with
Western Riverside Council of Governments
2. 2015-133 Authorizing the California Statewide Communities
Development Authority to Accept Applications from Property
Owners, Conduct Contractual Assessment Proceedings and
Levy Contractual Assessments within the Incorporated
Territory of the City; and Authorizing Related Actions
a. Council motion/discussion/vote
8. Authorizing and Approving an Agreement for Purchase and Sale (Including Joint
Escrow Instructions) and Terms of Development for 5870 Labath Avenue
(Stadium Lands) And Designation of Use of Proceeds From Property Sale
A. Staff Report
B. Public Comments
C. Agreement for the Purchase and Sale of Stadium Lands
1. Resolution for Adoption
i) 2015-134 Authorizing and Approving an Agreement for Purchase and
Sale (Including Joint Escrow Instructions) and Terms for
Development of 5870 Labath Avenue with 356 Advisors and
MJW Investments
a. Council motion/discussion/vote
D. Designation of Use of Proceeds From Property Sale
a. Council motion/discussion/vote
9. 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.
10. 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.
City of Rohnert Park Joint Regular Meeting Agenda August 11, 2015
for City Council/RPFA/CDC Successor Agency Page 4 of 4
11. 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.
12. 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.
13. ADJOURNMENT
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, JoAnne Buergler, City Clerk for the City of Rohnert Park, declare that the foregoing agenda for the August
11, 2015 Joint Regular Meeting of the Rohnert Park City Council/RPFA was posted and available for review
on August 6, 2015, 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 6th day of August, 2015, at Rohnert Park, California.
___________________________________________
JoAnne M. Buergler, City Clerk
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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, July 28, 2015
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 Ahanotu called the joint regular meeting to order at 5:00 pm, the notice for which being
legally noticed on June 18, 2015.
Present: Amy O. Ahanotu, Mayor
Gina Belforte, Vice Mayor
Joseph T. Callinan, Councilmember
Jake Mackenzie, Councilmember
Pam Stafford, Councilmember
Absent: None
Staff present: City Manager Jenkins, Assistant City Manager Schwartz, City Attorney
Kenyon, City Clerk Buergler, Senior Analyst Atkins, Finance Director Howze, Human
Resources Director Perrault, Acting Development Services Director and City Engineer
Pawson, Director of Public Safety Masterson, Director of Public Works and Community
Services McArthur, and Community Services Manager Austin.
2. PLEDGE OF ALLEGIANCE
Led by Lara McAllister.
3. DEPARTMENT HEAD BRIEFING
A. Economic Development: Update on City Marketing Plan
Assistant City Manager Schwartz and Tom Kavanaugh, Design Guild’s Creative
Director, provided the update.
B. Department of Public Safety: National Night Out, Tuesday, August 4, 2015 5-8pm
Public Safety Director Masterson provided the briefing.
City of Rohnert Park Joint Regular Meeting Minutes July 28, 2015
for City Council/Rohnert Park Financing Authority/Successor Agency Page 2 of 5
4. PUBLIC COMMENTS
Keith Woods, North Coast Builders Exchange CEO, commended the City on being
business friendly and stated the five things contractors are looking for are consistency,
costs that are fair, good communication with staff, common sense decisions made, and
customer service.
Chris Wagner spoke in support of Mocha Mamas which is closing Friday and requested
the City support Mocha Mamas. He is opposed to corporate businesses displacing local
businesses.
Mr. Eskew spoke in support of Mocha Mamas and expressed concern regarding the short
termination of lease notice given by the landlord.
Marilyn Eskew spoke in support of Mocha Mamas and requests the City’s support.
Renee McCorry spoke in support of Mocha Mamas and the owner’s support of the
community and requests the City support Mocha Mamas.
Stacey Allen spoke in support of Mocha Mamas and the owner’s support of the
community and requests the City support Mocha Mamas and locate a Wienerschnitzel on
the other side of the highway instead of in the Raley’s parking lot.
Tom Hansen spoke in support of Mocha Mamas and expressed concern regarding the 30
day eviction notice. If Codding Enterprises makes changes to the parking lot, he requests
the City ensure all ordinances are enforced including 17.16.100 – Parking Lot
Landscaping.
5. CONSENT CALENDAR
A. Approval of Minutes for:
1. City /RPFA/Successor Agency Joint Regular Meeting, July 14, 2015
2. City Council/RPFA/Successor Agency Joint Regular Meeting, June 23, 2015
B. Acceptance of Reports for:
1. City Bills/Demands for Payment dated July 28, 2015
2. Successor Agency to the CDC Bills/Demands for Payment dated July 28, 2015
3. City Councilmembers Quarterly Expense Report (April, May, June)
C. City Council Resolutions for Adoption:
1. 2015- 126 Approving the Conversion of the Full Time Community Service
Officer Position to a Full Time Property Technician Position in the
Public Safety Department
2. 2015-127 Authorizing and Approving the Conversion of the Full Time
Secretary II Position (Confidential) to a Full Time Administrative
Assistant Position (Confidential) in the Public Safety Department
3. 2015-128 Authorizing and Approving an Agreement Regarding the
Establishment and Collection of Regional Traffic Impact Fees for the
City of Rohnert Park Joint Regular Meeting Minutes July 28, 2015
for City Council/Rohnert Park Financing Authority/Successor Agency Page 3 of 5
Northwest Specific Plan Area between the City of Rohnert Park and
the County of Sonoma
D. Authorize the City Manager to Execute an Agreement with Bartel Associates for
Actuarial Consulting Services
E. Authorizing the City Manager to Execute the Third Amendment to the Land Lease
Agreement for the Benicia Park Cell Tower Site
F. Authorizing the City Manager to Execute Assignment of Recycled Water User
Agreements with the City of Santa Rosa
G. Authorizing the City Manager to Execute an Extension to the Municipal Staffing
Agreement for Temporary Staffing Services with Government Staffing Services Inc.,
DBA MuniTemps in the Amount of $14,000
ACTION: Moved/seconded (Callinan/Belforte) to approve the Consent Calendar.
Motion carried unanimously by the following 5-0 roll call vote: AYES:
Callinan, Mackenzie, Stafford, Belforte, and Ahanotu, NOS: None,
ABSTAINS: None, ABSENT: None.
6. CLOSED SESSION
A. Mayor Ahanotu made the closed session announcement pursuant to Government
Code §54957.7 and Council recessed to Closed Session at 6:00 pm in Conference
Room 2A to Consider:
1. Conference with Real Property Negotiators (Government Code §54956.8)
Property: 7783 Burton Avenue (APN: 143-203-001)
City Negotiator: Darrin Jenkins, City Manager
Negotiating Parties: Grant Walsh; Laura De'Rutte; Caroline Fuller; Kenneth
Wong; and Rikki Barron
Under Negotiation: Price and Terms
B. Reconvened Joint Regular Meeting Open Session in Council Chamber at 6:36 pm
C. Report on Closed Session (Government Code § 54957.1)
Mayor Ahanotu reported: no reportable action.
7. 2015 Mid-year Status Report on Implementation of Rohnert Park Strategic Plan
Assistant City Manager Schwartz presented the item. Recommended Action(s): City
Council receive and accept the 2015 Mid-year Status Report on implementation of the
City’s Strategic Plan.
Public Comment: None.
ACTION: By Consensus (none opposed), City Council received and accepted the
status report.
City of Rohnert Park Joint Regular Meeting Minutes July 28, 2015
for City Council/Rohnert Park Financing Authority/Successor Agency Page 4 of 5
8. PUBLIC HEARING: (NO EARLIER THAN 6PM- Noticed July 17 and 24, 2015)
Consider Adoption of Amendments to Proposed Recreation Facilities User Fee
Schedule - Conduct Public Hearing and Consider Adopting a Resolution Approving
a Modified Recreational Facility Rental and Program User Fee Schedule and
Superseding Resolution No. 2014-027
Community Services Manager Austin presented the item. Recommended Action(s): City
Council adopt a resolution approving a modified Recreation Facility and Program Fee
Schedule effective August 1, 2015 and superseding Resolution No. 2014-027.
Hearing Opened 6:54 pm
Public Comments: None.
Hearing Closed 6:54 pm
ACTION: Moved/seconded (Callinan/Stafford) to Approve Resolution 2015-129,
Approving the Modified Recreational Facility and Program Fees Schedule
and Superseding Resolution No. 2014-027.
Motion carried unanimously by the following 5-0 roll call vote: AYES:
Callinan, Mackenzie, Stafford, Belforte, and Ahanotu, NOS: None,
ABSTAINS: None, ABSENT: None.
9. COMMITTEE / LIAISON/ OTHER REPORTS
Russian River Watershed Association (7/23)
Councilmember Stafford reported the Association came in under budget and the credit
will be used toward next year’s fees. One big issue being discussed is a safe medicine
disposal program and producer responsibility.
Golden Gate Bridge, Highway & Transportation District
Vice Mayor Belforte reported on attending the American Public Transportation
Association (APTA) Conference in Denver and the impacts light rail has had on other
communities.
10. COMMUNICATIONS
Councilmember Callinan reported three (3) baseball teams from Rohnert Park went to
Utah and won the championship.
Councilmember Mackenzie reported on a Press Democrat article regarding development
in Rohnert Park. Councilmember Mackenzie reported the Chamber of Commerce Noon
Times speakers in August will be Assemblymember Dodd covering current events and
legislation and Mackenzie will provide a SMART Train update. Mackenzie reported on
the positive press and media attention directed toward Amy’s Kitchen.
Mayor Ahanotu reported he met with MGO Certified Public Accountants, the City’s
auditors, and invited any City Councilmembers to meet with them if interested.
City of Rohnert Park Joint Regular Meeting Minutes July 28, 2015
for City Council/Rohnert Park Financing Authority/Successor Agency Page 5 of 5
11. MATTERS FROM/FOR COUNCIL
Councilmember Mackenzie reported Sonoma State University is expecting 500 more
students this year and housing is on their agenda and suggests City staff meet with
University staff to discuss.
12. PUBLIC COMMENTS
None.
13. ADJOURNMENT
Mayor Ahanotu adjourned the joint regular meeting at 7:06 pm.
_____________________________________ __________________________________
JoAnne M. Buergler, City Clerk Amy O. Ahanotu, Mayor
City of Rohnert Park City of Rohnert Park
1
Meeting Date: August 11, 2015
Department: Administration
Submitted By: Darrin Jenkins, City Manager
Prepared By: JoAnne Buergler, City Clerk
Agenda Title: Adoption of Resolution Delegating to the City Manager Authority to
Reject Claims under the California Government Claims Act, Pursuant to
Government Code Section 935.4
RECOMMENDED ACTION:
City Council adopt a resolution delegating authority to the City Manager of the City of Rohnert
Park, to reject claims under the California Government Claims Act, pursuant to Government
Code Section 935.4
BACKGROUND:
The California Government Claims Act (Gov. Code 810 et seq.) requires most claims for
money or damages against the City and its officers and employees be presented to the public
entity within a specified period of time before a claimant is permitted to file a law suit against
the City or its employees, should they choose to, based upon that claim. The City Council has
historically taken action on such claims on the Consent Calendar and referred them to the
Redwood Empire Municipal Insurance Fund (REMIF) for processing.
ANALYSIS:
The Government Code allows the City Council to delegate the authority to reject claims to
the City Manager. Delegating the authority to reject claims would eliminate the
administrative step of bringing most routine claims to the City Council for action,
allowing the clock to begin running on the legal timeline within which a claimant must file suit
without having to wait for the next City Council meeting.
The City Attorney has reviewed the pertinent Government Code and confirms Government
Code Section 935.4 authorizes the City Council to delegate to a city employee (City Manager)
the authority reject a claim. Mark Ferguson, General Manager of REMIF, confirms he is aware
of several public agencies who have delegated similar authority to the City Manager -
Healdsburg, Windsor, and Ukiah to name a few.
Staff requests adoption of a Resolution to delegate authority to the City Manager to reject a
claim filed with the City Clerk under the Government Claims Act.
OPTIONS CONSIDERED:
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
Do not adopt a resolution delegating authority to the City Manager authority to reject a claim and
leave the process as is with the City Council taking action on all claims.
FISCAL IMPACT/FUNDING SOURCE:
City will realize a small savings related to City Attorney review of City Council meeting items
rejecting claims.
Department Head Approval Date: NA
City Manager Approval Date: July 28, 2015
Finance Director Approval Date: NA
City Attorney Approval Date: July 27, 2015
Attachments (list in packet assembly order):
1. Resolution for Adoption
RESOLUTION NO. 2015-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
DELEGATING TO THE CITY MANAGER AUTHORITY TO REJECT CLAIMS UNDER
THE CALIFORNIA GOVERNMENT CLAIMS ACT, PURSUANT TO GOVERNMENT
CODE SECTION 935.4
WHEREAS, The California Government Claims Act (Cal. Gov. Code §81 0 et sq.)
requires most claims for money or damages against the City of Rohnert Park and its officers and
employees to be presented to the City Council within a specified period of time before a claimant
is permitted to file a law suit against the City or its employees based on the claim (See Gov. Code
§905 et seq.); and
WHEREAS, It is the obligation of the City Council to act on the claim by allowing,
rejecting, compromising, or settling the claim within 45 days after the claim is presented; and
WHEREAS, Government Code section 935.4 authorizes the City Council to delegate to a
city employee the authority to perform these functions of the City Council under the Government
Claims Act, provided that the employee of a general law city cannot allow, settle, or compromise
a claim for more than $50,000; and
WHEREAS, The City Council finds that, subject to the limitations in Government Code
Section 935.4, claims can be more quickly and efficiently processed by delegating authority to the
City Manager to reject claims in the manner permitted by Government Code section 935.4 and
that the City Council's time is better used, if these functions of the City Council under the
Government Claims Act are delegated to the City Manager.
NOW, THEREFORE, BE IT RESOLVED that the City Council's authority to reject a
claim filed with the City Clerk under the Government Claims Act is hereby delegated to the City
Manager.
DULY AND REGULARLY ADOPTED this 11th day of August, 2015.
CITY OF ROHNERT PARK
____________________________________
Amy O. Ahanotu, Mayor
ATTEST:
______________________________
JoAnne M. Buergler, City Clerk
CALLINAN: _________ MACKENZIE: _________ STAFFORD: _________ BELFORTE: _________ AHANOTU: _________
AYES: ( ) NOES: ( ) ABSENT: ( ) ABSTAIN: ( )
1
Meeting Date: August 11, 2015
Department: Human Resources
Submitted By: Victoria Perrault, Human Resources Director
Prepared By: Victoria Perrault, Human Resources Director
Agenda Title: Consideration and Adoption of Policy and Complaint Procedure Against
Harassment, Discrimination and Retaliation
RECOMMENDED ACTION:
Adopt updated Policy and Complaint Procedure Against Harassment, Discrimination and
Retaliation.
BACKGROUND:
On July 10, 2007, the City Council adopted Resolution 2007-117, a Resolution of the City
Council of the City of Rohnert Park Updating and Reaffirming the City’s Policy Against
Harassment and Establishing a Complaint Procedure. The purpose of this resolution is to restate
and reaffirm that the City will take all reasonable steps to prevent and prohibit harassment, in the
work environment. The purpose of this policy is also to define discrimination and harassment
and to set forth procedures for investigating and resolving internal complaints.
ANALYSIS:
Effective January 1, 2012 AB 887 and SB 559 became law in California prohibiting harassment
and/or discrimination based on gender identity, gender expression and genetic information. The
California Fair Employment and Housing Act (FEHA) prohibits discrimination and harassment
based on various protected classifications. The new State laws established gender identity,
gender expression and genetic information as protected classifications under FEHA.
The current City’s policy against harassment (Resolution 2007-117) must be amended to include
the protected classifications of gender expression and genetic characteristics / information.
Additionally several previously protected classifications have been further defined and clarified
in the eight years since the City last updated its policy against harassment.
Attached is the updated Policy and Complaint Procedure Against Harassment, Discrimination
and Retaliation which includes the additional protected classifications and more clearly
addresses the prohibitions against discrimination and retaliation. Additionally this updated
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
policy and complaint procedure includes: expanded definitions, guidelines for identifying
harassment, responsibilities of managers, supervisors and employees, and an acknowledgement
form to be executed by all employees, Council Members and Commissioners.
All City bargaining units were provided with the attached updated policy and had the opportunity
to review and comment. No changes to the policy were suggested or provided by the bargaining
units.
It is recommended the City Council approve and adopt the attached Policy and Complaint
Procedure Against Harassment, Discrimination and Retaliation which supersedes and rescinds
Resolution 2007-117, a Resolution of the City Council of the City of Rohnert Park Updating and
Reaffirming the City’s Policy Against Harassment and Establishing a Complaint Procedure.
FISCAL IMPACT:
There is no fiscal impact known at this time.
Department Head Approval Date: NA
City Manager Approval Date: 7/31/15
Finance Director Approval Date: NA
City Attorney Approval Date: 7/15/15
Attachments (list in packet assembly order):
1. Resolution Adopting Policy and Complaint Procedure Against Harassment,
Discrimination and Retaliation
2. Policy and Complaint Procedure Against Harassment, Discrimination and Retaliation
RESOLUTION NO. 2015-131
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
AUTHORIZING AND APPROVING THE CITY OF ROHNERT PARK UPDATING AND
REAFFIRMING THE CITY’S POLICY AND COMPLAINT PROCEDURE AGAINST
HARASSMENT, DISCRIMINATION AND RETALIATION
WHEREAS, Title VII of the Civil Rights Act of 1964 (Title VII) is the federal law
that prohibits discrimination, harassment, and retaliation in the workplace and the California
Fair Employment and Housing Act (FEHA) establishes the state prohibition against
harassment, discrimination and retaliation based on a protected status; and
WHEREAS, the City of Rohnert Park is committed to promoting and maintaining a
work environment in which all individuals treat each other professionally and with mutual
respect; and
WHEREAS, staff recommends that the City Council adopt the updated City of
Rohnert Park Policy and Complaint Procedure Against Harassment, Discrimination and
Retaliation in compliance with Title VII and FEHA attached as Exhibit “A”.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Rohnert
Park that it does hereby authorize and approve the updated City of Rohnert Park Policy and
Complaint Procedure Against Harassment, Discrimination and Retaliation attached hereto as
Exhibit “A” and incorporated by this reference.
BE IT FURTHER RESOLVED that this Resolution supersedes and replaces
Resolution no. 2007-117.
DULY AND REGULARLY ADOPTED this 11th day of August, 2015.
CITY OF ROHNERT PARK
____________________________________
Amy O. Ahanotu, Mayor
ATTEST:
______________________________
JoAnne M. Buergler, City Clerk
Attachment: Exhibit A
CALLINAN:_________ MACKENZIE:_________ STAFFORD:_________ BELFORTE: _________ AHANOTU:_________
AYES: ( ) NOES: ( ) ABSENT: ( ) ABSTAIN: ( )
CITY OF ROHNERT PARK
CITY COUNCIL POLICY
SUBJECT
POLICY AND COMPLAINT PROCEDURE AGAINST
HARASSMENT, DISCRIMINATION AND
RETALIATION
POLICY NO.
440.20.1
RESO. NO.
2015-131
EFF. DATE
AUGUST 12, 2015
PAGE 1 OF 9
I. PURPOSE
The purpose of this Policy is to: establish a strong commitment to prohibit and
prevent discrimination, harassment, and retaliation in employment; to define those
terms; and to set forth a procedure for investigating and resolving internal complaints.
The City encourages all covered individuals to report—as soon as possible— any
conduct that is believed to violate this Policy.
II. POLICY
The City has zero tolerance for any conduct that violates this Policy. Conduct
need not arise to the level of a violation of law to violate this Policy. Instead a
single act can violate this Policy and provide grounds for discipline or other
appropriate sanctions. Disciplinary action or other appropriate sanction up to
and including termination will be instituted for prohibited behavior as defined
below.
Harassment or discrimination on the basis of race, religion, color, sex (including
gender, gender identity, gender expression, transgender), sexual orientation
(including heterosexuality, homosexuality, and bisexuality), national origin, ancestry,
citizenship status, marital status, pregnancy, age, medical condition, genetic
characteristics or information, military and veteran status, physical or mental
disability, or any other protected classification as defined below, will not be tolerated.
This Policy applies to all terms and conditions of employment, including, but not
limited to: hiring, placement, promotion, disciplinary action, layoff, recall, transfer,
leave of absence, compensation, and training.
Any retaliation against a person for filing a complaint or participating in the complaint
resolution process is prohibited. Individuals found to be retaliating in violation of this
Policy will be subject to appropriate sanction or disciplinary action up to and including
termination.
Attachment A
CITY OF ROHNERT PARK
CITY COUNCIL POLICY
SUBJECT
POLICY AND COMPLAINT PROCEDURE AGAINST
HARASSMENT, DISCRIMINATION AND
RETALIATION
POLICY NO.
440.20.1
RESO. NO.
2015-131
EFF. DATE
AUGUST 12, 2015
PAGE 2 OF 9
Definitions
A. Protected Classifications: This Policy prohibits harassment or discrimination
because of an individual’s protected classification. “Protected Classification”
includes race, religion, color, sex (including gender, gender identity, gender
expression, and transgender), sexual orientation (including heterosexuality,
homosexuality, and bisexuality), national origin, ancestry, citizenship status,
marital status, pregnancy, age, medical condition, genetic characteristics or
information, military and veteran status, physical or mental disability, or any
other category protected by federal or State law. For purposes of this Policy,
Protected Classification includes: 1) an individual’s protected classification; 2)
the perception that an individual has a protected classification; or 3) the
individual associates with a person who has or is perceived to have a
protected classification.
B. Policy Coverage: This Policy applies to all elected or appointed officials,
officers, employees, contractors, unpaid interns, or volunteers.
C. Discrimination: Treating individuals differently because of the individual’s
protected classification as defined in this Policy.
D. Harassment: Unwelcome verbal, visual, or physical conduct based on an
employee’s membership in a legally protected category that creates an
intimidating, offensive, or hostile work environment or that interferes with work
performance. Harassment includes, but is not limited to, the following types of
behavior that is taken because of a person’s protected classification. Note that
harassment is not limited to conduct that City’s employees take. Under certain
circumstances, harassment can also include conduct taken by those who are not
employees, such as elected officials, appointed officials, persons providing
services under contracts, or even members of the public:
1) Speech, such as epithets, derogatory comments or slurs, and
propositioning on the basis of a protected classification. This might
include inappropriate comments on appearance, including dress or
physical features, gender identification, or race-oriented stories and
jokes.
2) Physical acts, such as assault, impeding or blocking movement, offensive
touching, or any physical interference with normal work or movement. This
includes pinching, grabbing, patting, propositioning, or making explicit or
implied job threats or promises in return for submission to physical acts.
CITY OF ROHNERT PARK
CITY COUNCIL POLICY
SUBJECT
POLICY AND COMPLAINT PROCEDURE AGAINST
HARASSMENT, DISCRIMINATION AND
RETALIATION
POLICY NO.
440.20.1
RESO. NO.
2015-131
EFF. DATE
AUGUST 12, 2015
PAGE 3 OF 9
3) Visual acts, such as leering, derogatory posters, cartoons, emails, pictures,
or drawings related to a protected classification.
E. Sexual Harassment: Sexual advances, requests for sexual favors, or visual,
verbal, or physical conduct of a sexual nature when: (1) submission to such
conduct is made a term or condition of employment; or (2) submission to or
rejection of such conduct is used as a basis for employment decisions affecting
the individual; or (3) such conduct has the purpose or effect of unreasonably
interfering with an employee’s work performance or creating an intimidating,
hostile or offensive working environment. This definition includes potential forms
of offensive behavior. The following is a list of some examples:
1. Unwanted sexual advances.
2. Offering employment benefits in exchange for sexual favors.
3. Making or threatening reprisals after a negative response to sexual
advances.
4. Visual conduct, such as leering, making sexual gestures, displaying
of sexually explicit jokes, comments about an individual’s body or
dress.
5. Verbal sexual advances or propositions.
6. Verbal abuse of a sexual nature, graphic verbal commentary about
an individual’s body, sexually degrading words to describe an
individual, suggestive or obscene letters, notes, or invitations.
7. Physical conduct, such as touching, assault, impeding, or blocking
movements.
8. Retaliation for reporting harassment or threatening to report
harassment.
Sexual harassment can occur between members of the same or opposite sex.
Sexual harassment need not be motivated by sexual desire. Sexual harassment
on the job is prohibited whether it involves co-worker harassment, harassment by
a supervisor or manager, harassment by a subordinate, or harassment by third
parties doing business with or for the City.
CITY OF ROHNERT PARK
CITY COUNCIL POLICY
SUBJECT
POLICY AND COMPLAINT PROCEDURE AGAINST
HARASSMENT, DISCRIMINATION AND
RETALIATION
POLICY NO.
440.20.1
RESO. NO.
2015-131
EFF. DATE
AUGUST 12, 2015
PAGE 4 OF 9
F. Guidelines for Identifying Harassment: To help clarify what constitutes
harassment in violation of this Policy, use the following guidelines:
1) Harassment includes any conduct which would be "unwelcome" to an
individual and which is taken because of the recipient’s protected
classification.
2) It is no defense that the recipient appears to have voluntarily "consented" to
the conduct at issue. A recipient may be reluctant to protest for many
legitimate reasons, including the need to avoid being insubordinate or to
avoid being ostracized.
3) Simply because no one has complained about a joke, gesture, picture,
physical contact, or comment does not mean that the conduct is welcome.
Harassment can evolve over time. The fact that no one is complaining now
does not preclude anyone from complaining if the conduct is repeated in the
future.
4) Even visual, verbal, or physical conduct between two employees who
appear to welcome the conduct can constitute harassment of a third party
who observes the conduct or learns about the conduct later. Conduct can
constitute harassment even if it is not explicitly or specifically directed at an
individual.
5) Conduct can constitute harassment in violation of this Policy even if the
individual engaging in the conduct has no intention to harass. Even well-
intentioned conduct can violate this Policy if the conduct is directed at, or
implicates a protected classification, and if an individual of the recipient’s
same protected classification would find it offensive (e.g., gifts, over
attention, endearing nicknames).
G. Retaliation: Any adverse conduct taken because of any report of harassment
or discrimination, or because of participation in the complaint and investigation
process described herein, is prohibited. “Adverse conduct” includes but is not
limited to: taking sides because an individual has reported harassment or
discrimination, spreading rumors about a complaint, shunning and avoiding an
individual who reports harassment or discrimination, or real or implied threats of
intimidation to prevent an individual from reporting harassment or
discrimination. Individuals that are protected from retaliation include: those who
make good faith reports of harassment or discrimination, and those who
CITY OF ROHNERT PARK
CITY COUNCIL POLICY
SUBJECT
POLICY AND COMPLAINT PROCEDURE AGAINST
HARASSMENT, DISCRIMINATION AND
RETALIATION
POLICY NO.
440.20.1
RESO. NO.
2015-131
EFF. DATE
AUGUST 12, 2015
PAGE 5 OF 9
associate with an individual who is involved in reporting harassment or
discrimination or who participates in the complaint or investigation process.
Complaint Procedure
A. Anyone who believes he or she has suffered harassment, discrimination, or
retaliation may make a complaint verbally or in writing with any of the following.
There is no need to follow the chain of command:
1) Immediate supervisor;
2) Any supervisor or manager within or outside of the department;
3) Department head;
4) Director of Human Resources; or
5) City Manager
B. Any supervisor, manager, or department head who receives a harassment,
discrimination, or retaliation complaint should notify the Director of Human Resources
immediately.
C. Upon receiving notification of a harassment, discrimination, or retaliation
complaint, the Director of Human Resources shall:
1) Authorize and supervise the investigation of the complaint and/or
investigate the complaint. The investigation will include interviews with: 1)
the complainant; 2) the accused party; and 3) other persons who have
relevant knowledge concerning the allegations in the complaint.
2) Review the factual information gathered through the investigation to
determine whether the alleged conduct constitutes harassment,
discrimination, or retaliation giving consideration to all factual information, the
totality of the circumstances, including the nature of the conduct, and the
context in which the alleged incidents occurred.
3) Report a summary of the determination as to whether harassment,
discrimination, or retaliation occurred to appropriate persons, including
the City Manager, the complainant, the accused party, the supervisor,
and the department head. If discipline is imposed, the level of discipline
will not be communicated to the complainant.
CITY OF ROHNERT PARK
CITY COUNCIL POLICY
SUBJECT
POLICY AND COMPLAINT PROCEDURE AGAINST
HARASSMENT, DISCRIMINATION AND
RETALIATION
POLICY NO.
440.20.1
RESO. NO.
2015-131
EFF. DATE
AUGUST 12, 2015
PAGE 6 OF 9
4) If conduct in violation of this Policy occurred, take or recommend to the
City Manager prompt and effective remedial action. The remedial action
will be commensurate with the severity of the offense, as well as in
consideration of any prior offenses.
5) Take reasonable steps to protect the complainant from further
harassment or discrimination.
6) Take reasonable steps to protect the complainant from retaliation as
a result of communicating the complaint.
D. The City takes a proactive approach to potential Policy violations and will
conduct an investigation if its officers, supervisors, or managers become aware
that harassment, discrimination, or retaliation may be occurring, regardless of
whether the recipient or third party reports a potential violation.
E. Option to report to outside administrative agencies: An individual has the
option to report harassment, discrimination, or retaliation to the U.S. Equal
Employment Opportunity Commission (EEOC) or the California
Department of Fair Employment and Housing (DFEH). These
administrative agencies offer legal remedies and a complaint process. The
nearest offices are listed in the government section of the telephone book
or employees can check the posters that are located on employer bulletin
boards for office locations and telephone numbers.
ALL EMPLOYEES SHOULD NOTE THAT THE FAILURE TO USE THE CITY’S
COMPLAINT PROCEDURE MAY HAVE AN ADVERSE EFFECT ON ANY CLAIM
UNDER THIS POLICY WHEN SUCH CLAIMS ARE LITIGATED.
Confidentiality
Every possible effort will be made to assure the confidentiality of complaints made
under this Policy. Complete confidentiality cannot occur, however, due to the need
to fully investigate and the duty to take effective remedial action. As a result,
confidentiality will be maintained to the extent possible. An individual who is
interviewed during the course of an investigation is prohibited from discussing the
substance of the interview, except as otherwise directed by a supervisor or the
Human Resources Director. Any individual who discusses the content of an
investigatory interview will be subject to discipline or other appropriate sanction. The
employer will not disclose a completed investigation report except as it deems
CITY OF ROHNERT PARK
CITY COUNCIL POLICY
SUBJECT
POLICY AND COMPLAINT PROCEDURE AGAINST
HARASSMENT, DISCRIMINATION AND
RETALIATION
POLICY NO.
440.20.1
RESO. NO.
2015-131
EFF. DATE
AUGUST 12, 2015
PAGE 7 OF 9
necessary to support a disciplinary action, to take remedial action, to defend itself in
adversarial proceedings, or to comply with the law or court order.
Responsibilities
Managers and Supervisors are responsible for:
1. Informing employees of this Policy.
2. Modeling appropriate behavior.
3. Taking all steps necessary to prevent harassment, discrimination, or
retaliation from occurring.
4. Receiving complaints in a fair and serious manner, and documenting steps
taken to resolve complaints.
5. Monitoring the work environment and taking immediate appropriate action to stop
potential violations, such as removing inappropriate pictures or correcting
inappropriate language.
6. Following up with those who have complained to ensure that the behavior has
stopped and that there are no reprisals.
7. Informing those who complain of harassment or discrimination of his or her
option to contact the EEOC or DFEH regarding alleged Policy violations.
8. Assisting, advising, or consulting with employees and the Human
Resources Director regarding this Policy and Complaint Procedure.
9. Assisting in the investigation of complaints involving employee(s) in their
departments and, if the complaint is substantiated, recommending appropriate
corrective or disciplinary action in accordance with employer Personnel Rules,
up to and including discharge.
10. Implementing appropriate disciplinary and remedial actions.
11. Reporting potential violations of this Policy of which he or she becomes aware,
regardless of whether a complaint has been submitted, to the Human
Resources Department or the department head.
12. Participating in periodic training and scheduling employees for training.
Each elected or appointed official, officer, employee, contractor, unpaid I ntern and
volunteer is responsible for:
1. Treating others with respect and consideration.
2. Modeling appropriate behavior.
3. Participating in periodic training when provided.
4. Fully cooperating with the City’s investigations by responding fully and truthfully
to all questions posed during the investigation.
CITY OF ROHNERT PARK
CITY COUNCIL POLICY
SUBJECT
POLICY AND COMPLAINT PROCEDURE AGAINST
HARASSMENT, DISCRIMINATION AND
RETALIATION
POLICY NO.
440.20.1
RESO. NO.
2015-131
EFF. DATE
AUGUST 12, 2015
PAGE 8 OF 9
5. Maintaining the confidentiality of any investigation that the City conducts by
not disclosing the substance of any investigatory interview, except as
directed by the department head or Human Resources Director.
6. Reporting any act he or she believes in good faith constitutes harassment,
discrimination, or retaliation as defined in this Policy, to his or her immediate
supervisor, or department head, or Human Resources Director.
7. Employees have a duty to disclose any benefits received. Employees are
hereby informed that no supervisor, manager, or officer of the City, or other
person or entity doing business with the City, is authorized to expressly or
impliedly condition the receipt or denial of any benefit, compensation, or other
term or condition of employment on an employee’s acquiescence to any sexual
demand. To the contrary, all employees are instructed that they must refuse
such demands and report them promptly either to a supervisor, manager, or
department head. Any employee who is found to have accepted any benefit
from the City because he/she submitted to an unreported sexual demand will be
disciplined appropriately, including but not limited to, reimbursement for the
value of any benefits received. Any employee making such a demand will be
similarly disciplined.
Dissemination of Policy
All employees shall receive a copy of this Policy when they are hired. The Policy may
be updated from time to time and redistributed.
CITY OF ROHNERT PARK
CITY COUNCIL POLICY
SUBJECT
POLICY AND COMPLAINT PROCEDURE AGAINST
HARASSMENT, DISCRIMINATION AND
RETALIATION
POLICY NO.
440.20.1
RESO. NO.
2015-131
EFF. DATE
AUGUST 12, 2015
PAGE 9 OF 9
Acknowledgment of Policy and Complaint Procedure Against Harassment,
Discrimination and Retaliation
I have received the City of Rohnert Park Policy and Complaint Procedure Against
Harassment, Discrimination and Retaliation. I have read the policy; I understand it and
understand the rights and responsibilities I have under the policy. I accept responsibility
for adhering to the policy. I understand that violations of the policy may result in
disciplinary action as provided for in the City’s Personnel Rules, up to and including
termination.
Employee Full Name:
Employee Signature:
Date:____________________
1
Meeting Date: August 11, 2015
Department: Administration
Submitted By: JoAnne Buergler, City Clerk
Prepared By: Carrie Willis, Administrative Assistant
Agenda Title: Accept Resignation from Mobile Home Rent Appeals Board Member Diane
Broadhead and Direct Staff to Send Letter of Appreciation
RECOMMENDED ACTION:
Accept the resignation of Mobile Home Rent Appeals Board Member Diane Broadhead and
direct staff to send letter of appreciation.
BACKGROUND:
On July 27, 2015, the City Clerk’s Office received notification of Diane Broadhead’s decision to
resign from the Mobile Home Rent Appeals Board, effective immediately.
Ms. Broadhead was nominated for appointment to the Committee by Councilmember Pam Stafford
and initially took office in August of 2012.
The vacated position’s two-year term will expire on December 31, 2016, and in order to solicit
interest from the community for a replacement, the City Clerk’s office prepared and posted a Notice
of Special Vacancy at various City facilities and on the City’s website advertising this vacancy.
Any applications of interest received from community members following the posting will be
submitted to the City Council for consideration of appointment at the August 25, 2015 meeting.
Department Head Approval Date: 7/29/2015
City Manager Approval Date: 7/30/2015
City Attorney Approval Date: N/A
Attachments:
1. Letter of Resignation – Diane Broadhead
2. Special Vacancy Notice
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
CITY OF ROHNERT PARK
130 AVRAM AVENUE, ROHNERT PARK, CA 94928
PHONE: (707) 588-2227 | FAX: (707) 794-9248 | WEB: www.rpcity.org
OFFICE OF THE CITY CLERK
NOTICE OF SPECIAL VACANCY
Rohnert Park City Council is Seeking Applicants for the City’s
MOBILE HOME RENT APPEALS BOARD
The Council of the City of Rohnert Park is seeking applications from Rohnert Park residents for a special vacancy
on the City’s Mobile Home Rent Appeals Board for the remainder of a two-year term which expires December
31, 2016. Appointment to the vacancy will be made by Councilmember Pam Stafford.
The Rent Appeals Board currently meets the first Thursday of each month at 6:00 p.m. in the Council Chamber
located at Rohnert Park City Hall, 130 Avram Avenue, Rohnert Park, CA.
Current Rohnert Park residents who are duly qualified registered voters are eligible to apply. Board Members
will be required to file conflict of interest statements as required by law. Preference is given to citizens
interested in preventing unreasonable rent increases for controlled mobile home rental spaces in Rohnert Park
for the five (5) mobile home parks in the city while still assuring the owner’s right to a fair return.
Interested Rohnert Park residents may obtain a fact sheet application at the City Clerk’s Office located at 130
Avram Avenue, Rohnert Park, CA 94928, online at rpcity.org or by calling (707) 588-2227. Completed
applications can be submitted in person at City Hall, via mail, or fax (707) 794-9248. Councilmember Stafford
will consider Fact Sheet applications received the second and fourth Tuesdays of each month (Regular City
Council meetings) until the vacancy is filled.
Dated: July 28, 2015 JoAnne Buergler, City Clerk
In Accordance with Maddy Act Provisions (G.C. 54970)
POST: (1) City Hall
(2) Public Safety
(3) Community Center
(4) Senior Center
(5) Library: (bolmeier@sonoma.lib.ca.us)
(6) City of Rohnert Park Website (www.rpcity.org)
(7) Chamber of Commerce: (info@rohnertparkchamber.org)
(8) Rohnert Park Mobile Home Parks
CC: City Council Members
Darrin Jenkins, City Manager
Don Schwartz, Assistant City Manager
Michelle Marchetta Kenyon, City Attorney
Matthew Visick, Assistant City Attorney
Carol Adams, Executive Assistant (For City Directory)
Jeffrey Beiswenger (for MHRAB)
Nargiza Rakhimi, Secretary (for POSTING at Public Safety)
Chris Morgan (for POSTING at Community Center)
Gene Abravaya, Theatre Manager (for POSTING at PAC)
Connie Bolmeier, Rohnert Park Regional Library (for Posting at Library)
Jessica Schieberl (for POSTING at Senior Center)
FILE – Mobile Home Parks Rent Appeals Board - Appointments
Sonoma PACE Financing
Marketplace
Sponsored by:
COUNTY OF SONOMA
ENERGY AND SUSTAINABILITY
7/1/15, EP 2
PACE Activity through June 1, 2015
All Rohnert Park
Residential 2150 properties, $59.6 M 145 properties, $2.88 M
Commercial 63 properties, $11.0 M 3 properties, $1.8 M
Jobs Created/Retained
1413 direct, indirect, and
induced jobs
82 local construction jobs
PACE Financing Highlights
Improvement Types using PACE
6.29.15 LY 3
Over 85% of All Projects are Completed by Local Contractors
39%
2% 10% 6% 3%
12%
20%
2% 2% 2% 2% Solar PV
Solar Thermal
HVAC
Cool Roof
Water Heater
Sealing & Insulation
Windows & Doors
Lighting
Ventilation
Water Cons.
Other Energy Efficiency
Rohnert Park Greenhouse Gas Reduction Results
7/1/15, EP 4
1,360 MTCO2E annually in Rohnert Park
Financing Marketplace Benefits
•Expand availability of project financing
•Consumer choice of PACE provider
•Choice of terms, rates, and eligible
improvements
•Contractor support and resources for
workforce development and creating local jobs
•Consumer assurances and impartial assistance
•Data on results and progress toward
community goals
5
6
http://sonomacountyenergy.org/financing-marketplace-tool/
Marketplace Click and Compare Tool
7
Marketplace Click and Compare Tool
http://sonomacountyenergy.org/financing-marketplace-tool/
1
Meeting Date: August 11, 2015
Department: Administration
Submitted By: Don Schwartz, Assistant City Manager
Prepared By: Don Schwartz, Assistant City Manager & Carol Adams, Executive Asst. to the
City Manager
Agenda Title: Sonoma County PACE (Property Assessed Clean Energy) Financing
Marketplace
RECOMMENDED ACTION: Council consideration of resolutions and amendments to Joint
Powers Agreements to allow residents to participate in financing programs for water and energy
efficiency upgrades and installation of renewable energy through the Sonoma County PACE
Financing Marketplace.
BACKGROUND: In 2005 Rohnert Park joined the other 9 local governments within Sonoma
County and set a mutual greenhouse gas target to reduce emissions to 25 percent below 1990
levels by 2015, one of the most aggressive targets in the country.
In 2009, the City entered into a cooperative agreement with the County of Sonoma allowing
property owners to participate voluntarily in the Sonoma County Energy Independence Program
(SCEIP), a form of the Property Assessed Clean Energy (PACE) financing that allows property
owners to obtain loans for 90 types of energy and water efficiency improvements at a fixed
interest rate of 7% for 10 or 20 years. The loans are repaid by participants through property
taxes.
As of March 30th of 2015, three commercial property owners in Rohnert Park used $1.8 million
in the PACE financing for solar installations. 144 residential property owners financed $2.9
million in improvements including; window & door replacements (72 projects), solar
installations (64 projects), cool roof (35 projects), sealing and insulation (30 projects), HVAC
(24 projects), and water conservation (4 projects).
To promote PACE financing, Sonoma County has developed the Sonoma PACE Financing
Marketplace. The Financing Marketplace expands the PACE financing options by adding
PACE providers to:
A. Expand local funding capacity – The bonding capacity of the SCEIP financing product
from the County Treasury is limited to $60 million with $43 million currently extended.
Estimates of the funding needed to implement the climate action goals of retrofitting 80%
of the existing buildings with a 30% efficiency improvement exceed $2 billion dollars.
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
B. Provide consumer choice with financing options in a ‘lending-tree-like’ model for the
consumer. The Marketplace members offer a variety of financing terms, interest rates,
eligible improvements and contractor services.
C. Expand the number of contractors participating in PACE-funded improvements.
D. Providing a one-stop location for all PACE financing products through the County’s
Energy Independence Office, and allow for consolidated reporting of results financed
through the Marketplace.
E. Accelerate progress toward meeting the climate action goals.
Sonoma PACE Financing Marketplace Members include SCEIP, as described above, as well as
other options developed since SCEIP began:
New - CaliforniaFirst: The California Statewide Communities Development Authority
(“California Communities”) is a joint powers authority which includes Rohnert Park. Its mission
is to provide local governments’ access to low-cost financing for projects that provide a tangible
public benefit, contribute to social and economic growth, and improve the overall quality of life.
California Communities established the CaliforniaFIRST Property Assessed Clean Energy
(PACE) program to allow the financing of certain renewable energy, electric vehicle charging
stations, seismic upgrades, energy efficiency, and water efficiency improvements.
New - California HERO: The Western Riverside Council of Governments (WRCOG) is a joint
powers authority that has established the California HERO Program (Home Energy Renovation
Opportunity) to provide for the financing of renewable energy distributed generation sources,
energy and water efficiency improvements and electric vehicle charging infrastructure.
Participation requires the City to join the WRCOG JPA as an Associate Member by adopting the
resolution accompanying this staff report and approving an amendment to the JPA for the
purposes of implementing the PACE.
PACE Product Comparison Chart (rates and fees subject to change):
CAFIRST CA HERO SCEIP
Property
Types
Residential
Commercial
Residential
Commercial
Residential
Commercial
Interest Rate Residential (as of
3/4/15)
5 yr - 6.75%
10 yr - 7.59%
15 yr – 7.99%
20 yr- 8.29%
25 yr – 8.39%
Residential
5 yr - 5.95%
10 yr -
7.95%
15 yr -
8.75%
20 yr -
8.95%
Residential
7.0%
3
Commercial
Varies
Commercial
5 yr- 5.75%
10 yr -
6.00%
15 yr -
6.25%
20 yr -
6.50%
Commercial
7.0%
Fees Vary Vary Market
valuation $12
Annual asmt.
admin $44
Title $125
Recordation $66
Minimum /
Maximum
The Financing is
for less than fifteen
percent (15%) of
the value of
the property, up to
the first seven
hundred thousand
dollars ($700,000)
of the value of the
property, and is for
less than ten
percent (10%) of
the remaining value
of the property
above seven
hundred thousand
dollars ($700,000)
Commercial
minimum $50,000
to $500,000
$5,000 up to
10% property
value
$2,500 up to
10% property
value
Terms 5 to 25 years 5, 10, 15 or 20
year
10 or 20 year
Eligible
Improvements
Energy, Water,
Renewable
Energy, Water,
Renewable
Energy, Water,
Renewable
Prepayment
Penalty
No No No
4
A more detailed look into the financing structure and considerations for SCEIP participants
reveals that the Federal Housing Finance Agency (FHFA) disapproves of allowing priority
position for PACE assessments when a homeowner defaults on their mortgage. FHFA has not
formally issued rules to implement its position, and no Federal agency has taken foreclosure
action on any property because it had a PACE assessment. In addition, the State has created a
PACE Loss Reserve Program to address the Federal concerns and to make first mortgage lenders
whole for any losses associated with a PACE assessment. All participants in PACE financing are
notified and required to sign an alert on the Federal position. Property owners may be required to
pay off PACE assessments if they sell or refinance their properties; this possible scenario is
contingent upon the actions of each associated lender and may differ between banks.
Additional PACE Providers may join the Marketplace in the future. At that time, the Council
may also allow property owner participation in these programs by adopting similar resolutions.
Staff is requesting Council action on the following items:
1. Resolution allowing city property owners to participate in the CaliforniaFIRST PACE
program; and
2. Resolution which allows city property owners to participate in the California HERO PACE
program and also approves the amendment to the Western Riverside Council of Governments
Joint Powers Agreement to add the City as an Associate Member thereby authorizing the
city’s participation in the California HERO Program.
OPTIONS CONSIDERED: The City Council could decide to not join the Financing
Marketplace, which would limit residents’ ability to access PACE financing to the SCEIP
program until its funding is no longer available.
FISCAL IMPACT/FUNDING SOURCE: These actions have no fiscal impact on the City; all
costs are borne by property owners’ voluntary contract assessment on their property tax bill.
Department Head Approval Date: N/A
City Manager Approval Date: July 28, 2015
City Attorney Approval Date: July 28, 2015
Attachments (list in packet assembly order):
1. Resolution approving CaliforniaFIRST PACE program
2. Resolution approving the California HERO PACE program and Western Riverside
Council of Governments Joint Powers Agreement to add the City as an Associate
Member
RESOLUTION NO. 2015-132
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT
PARK, CALIFORNIA, CONSENTING TO THE INCLUSION OF
PROPERTIES WITHIN THE CITY’S JURISDICTION IN THE
CALIFORNIA HERO PROGRAM TO FINANCE DISTRIBUTED
GENERATION RENEWABLE ENERGY SOURCES, ENERGY AND
WATER EFFICIENCY IMPROVEMENTS AND ELECTRIC VEHICLE
CHARGING INFRASTRUCTURE AND APPROVING THE RELATED
AMENDMENT TO A CERTAIN JOINT POWERS AGREEMENT WITH
WESTERN RIVERSIDE COUNCIL OF GOVERNMENTS
WHEREAS, the Western Riverside Council of Governments (“Authority”) is a joint
exercise of powers authority established pursuant to Chapter 5 of Division 7, Title 1 of the
Government Code of the State of California (Section 6500 and following) (the “Act”) and the
Joint Power Agreement entered into on April 1, 1991, as amended from time to time (the
“Authority JPA”); and
WHEREAS, Authority intends to establish the California HERO Program to provide for
the financing of renewable energy distributed generation sources, energy and water efficiency
improvements and electric vehicle charging infrastructure (the “Improvements”) pursuant to
Chapter 29 of the Improvement Bond Act of 1911, being Division 7 of the California Streets and
Highways Code (“Chapter 29”) within counties and cities throughout the State of California that
elect to participate in such program; and
WHEREAS, City of Rohnert Park (the “City”) is committed to development of
renewable energy sources and energy efficiency improvements, reduction of greenhouse gases,
protection of our environment, and reversal of climate change; and
WHEREAS, in Chapter 29, the Legislature has authorized cities and counties to assist
property owners in financing the cost of installing Improvements through a voluntary contractual
assessment program; and
WHEREAS, installation of such Improvements by property owners within the
jurisdictional boundaries of the counties and cities that are participating in the California HERO
Program would promote the purposes cited above; and
WHEREAS, the City wishes to provide innovative solutions to its property owners to
achieve energy and water efficiency and independence, and in doing so cooperate with Authority
in order to efficiently and economically assist property owners the City in financing such
Improvements; and
WHEREAS, Authority has authority to establish the California HERO Program, which
will be such a voluntary contractual assessment program, as permitted by the Act, the Authority
JPA, originally made and entered into April 1, 1991, as amended to date, and the Amendment to
Joint Powers Agreement Adding the City of Rohnert Park as an Associate Member of the
Western Riverside Council of Governments to Permit the Provision of Property Assessed Clean
Energy (PACE) Program Services within the City (the “JPA Amendment”), by and between
Authority and the City, a copy of which is attached as Exhibit “A” hereto, to assist property
owners within the incorporated area of the City in financing the cost of installing Improvements;
and
WHEREAS, the City will not be responsible for the conduct of any assessment
proceedings; the levy and collection of assessments or any required remedial action in the case of
delinquencies in the payment of any assessments or the issuance, sale or administration of any
bonds issued in connection with the California HERO Program.
NOW, THEREFORE, BE IT RESOLVED THAT:
1. This City Council finds and declares that properties in the City’s incorporated
area will be benefited by the availability of the California HERO Program to finance the
installation of Improvements.
2. This City Council consents to inclusion in the California HERO Program of all of
the properties in the incorporated area within the City and to the Improvements, upon the request
by and voluntary agreement of owners of such properties, in compliance with the laws, rules and
regulations applicable to such program; and to the assumption of jurisdiction there over by
Authority for the purposes thereof.
3. The consent of this City Council constitutes assent to the assumption of
jurisdiction by Authority for all purposes of the California HERO Program and authorizes
Authority, upon satisfaction of the conditions imposed in this resolution, to take each and every
step required for or suitable for financing the Improvements, including the levying, collecting
and enforcement of the contractual assessments to finance the Improvements and the issuance
and enforcement of bonds to represent and be secured by such contractual assessments.
4. This City Council hereby approves the JPA Amendment and authorizes the
execution thereof by appropriate City officials.
5. City staff is authorized and directed to coordinate with Authority, staff to
facilitate operation of the California HERO Program within the City, and report back
periodically to this City Council on the success of such program.
6. This Resolution shall take effect immediately upon its adoption. The City Clerk
is directed to send a certified copy of this resolution to the Secretary of the Authority Executive
Committee.
DULY AND REGULARLY ADOPTED this 11th day of August, 2015.
CITY OF ROHNERT PARK
_____________________________________
Amy O. Ahanotu, Mayor
ATTEST:
____________________________________
JoAnne M. Buergler, City Clerk
Exhibit A to Resolution
A - 1
AMENDMENT TO THE JOINT POWERS AGREEMENT
ADDING CITY OF ROHNERT PARK
AS AN ASSOCIATE MEMBER OF THE
WESTERN RIVERSIDE COUNCIL OF GOVERNMENTS
TO PERMIT THE PROVISION OF PROPERTY ASSESSED CLEAN ENERGY (PACE)
PROGRAM SERVICES WITH SUCH CITY
This Amendment to the Joint Powers Agreement (“JPA Amendment”) is made and entered into
on the ___day of ______________, 2015, by City of Rohnert Park (“City”) and the Western
Riverside Council of Governments (“Authority”) (collectively the “Parties”).
RECITALS
WHEREAS, Authority is a joint exercise of powers authority established pursuant to
Chapter 5 of Division 7, Title 1 of the Government Code of the State of California (Section 6500
and following) (the “Joint Exercise of Powers Act”) and the Joint Power Agreement entered into
on April 1, 1991, as amended from time to time (the “Authority JPA”); and
WHEREAS, as of October 1, 2012, Authority had 18 member entities (the “Regular
Members”).
WHEREAS, Chapter 29 of the Improvement Act of 1911, being Division 7 of the
California Streets and Highways Code (“Chapter 29”) authorizes cities, counties, and cities and
counties to establish voluntary contractual assessment programs, commonly referred to as a
Property Assessed Clean Energy (“PACE”) program, to fund certain renewable energy sources,
energy and water efficiency improvements, and electric vehicle charging infrastructure (the
“Improvements”) that are permanently fixed to residential, commercial, industrial, agricultural or
other real property; and
WHEREAS, Authority intends to establish a PACE program to be known as the
“California HERO Program” pursuant to Chapter 29 as now enacted or as such legislation may
be amended hereafter, which will authorize the implementation of a PACE financing program for
cities and county throughout the state; and
WHEREAS, City desires to allow owners of property within its jurisdiction to
participate in the California HERO Program and to allow Authority to conduct proceedings
under Chapter 29 to finance Improvements to be installed on such properties; and
WHEREAS, this JPA Amendment will permit City to become an Associate Member of
Authority and to participate in California HERO Program for the purpose of facilitating the
implementation of such program within the jurisdiction of City; and
WHEREAS, pursuant to the Joint Exercise of Powers Act, the Parties are approving this
JPA Agreement to allow for the provision of PACE services, including the operation of a PACE
financing program, within the incorporated territory of City; and
WHEREAS, the JPA Amendment sets forth the rights, obligations and duties of City and
Authority with respect to the implementation of the California HERO Program within the
incorporated territory of City.
Exhibit A to Resolution
A - 2
MUTUAL UNDERSTANDINGS
NOW, THEREFORE, for and in consideration of the mutual covenants and conditions
hereinafter stated, the Parties hereto agree as follows:
A. JPA Amendment.
1. The Authority JPA. City agrees to the terms and conditions of the Authority JPA,
attached.
2. Associate Membership. By adoption of this JPA Amendment, City shall become
an Associate Member of Authority on the terms and conditions set forth herein and the Authority
JPA and consistent with the requirements of the Joint Exercise of Powers Act. The rights and
obligations of City as an Associate Member are limited solely to those terms and conditions
expressly set forth in this JPA Amendment for the purposes of implementing the California
HERO Program within the incorporated territory of City. Except as expressly provided for by
the this JPA Amendment, City shall not have any rights otherwise granted to Authority’s Regular
Members by the Authority JPA, including but not limited to the right to vote on matters before
the Executive Committee or the General Assembly, the right to amend or vote on amendments to
the Authority JPA, and the right to sit on committees or boards established under the Authority
JPA or by action of the Executive Committee or the General Assembly, including, without
limitation, the General Assembly and the Executive Committee. City shall not be considered a
member for purposes of Section 9.1 of the Authority JPA.
3. Rights of Authority. This JPA Amendment shall not be interpreted as limiting or
restricting the rights of Authority under the Authority JPA. Nothing in this JPA Amendment is
intended to alter or modify Authority Transportation Uniform Mitigation Fee (TUMF) Program,
the PACE Program administered by Authority within the jurisdictions of its Regular Members,
or any other programs administered now or in the future by Authority, all as currently structured
or subsequently amended.
B. Implementation of California HERO Program within City Jurisdiction.
1. Boundaries of the California HERO Program within City Jurisdiction. City shall
determine and notify Authority of the boundaries of the incorporated territory within City’s
jurisdiction within which contractual assessments may be entered into under the California
HERO Program (the “Program Boundaries”), which boundaries may include the entire
incorporated territory of City or a lesser portion thereof.
2. Determination of Eligible Improvements. Authority shall determine the types of
distributed generation renewable energy sources, energy efficiency or water conservation
improvements, electric vehicle charging infrastructure or such other improvements as may be
authorized pursuant to Chapter 29 (the “Eligible Improvements”) that will be eligible to be
financed under the California HERO Program.
3. Establishment of California HERO Program. Authority will undertake such
proceedings pursuant to Chapter 29 as shall be legally necessary to enable Authority to make
contractual financing of Eligible Improvements available to eligible property owners within the
Program Boundaries.
Exhibit A to Resolution
A - 3
4. Financing the Installation of Eligible Improvements. Authority shall develop and
implement a plan for the financing of the purchase and installation of the Eligible Improvements
under the California HERO Program.
5. Ongoing Administration. Authority shall be responsible for the ongoing
administration of the California HERO Program, including but not limited to producing
education plans to raise public awareness of the California HERO Program, soliciting, reviewing
and approving applications from residential and commercial property owners participating in the
California HERO Program, establishing contracts for residential, commercial and other property
owners participating in such program, establishing and collecting assessments due under the
California HERO Program, adopting and implementing any rules or regulations for the
California HERO Program, and providing reports as required by Chapter 29.
City will not be responsible for the conduct of any proceedings required to be taken under
Chapter 29; the levy or collection of assessments or any required remedial action in the case of
delinquencies in such assessment payments; or the issuance, sale or administration of any bonds
issued in connection with the California HERO Program.
6. Phased Implementation. The Parties recognize and agree that implementation of
the California HERO Program as a whole can and may be phased as additional other cities and
counties execute similar agreements. City entering into this JPA Amendment will obtain the
benefits of and incur the obligations imposed by this JPA Amendment in its jurisdictional area,
irrespective of whether cities or counties enter into similar agreements.
C. Miscellaneous Provisions.
1. Withdrawal. City or Authority may withdraw from this JPA Amendment upon
six (6) months written notice to the other party; provided, however, there is no outstanding
indebtedness of Authority within City. The provisions of Section 6.2 of the Authority JPA shall
not apply to City under this JPA Amendment. City may withdraw approval for conduct of the
HERO Program within the jurisdictional limits of City upon thirty (30) written notice to
WRCOG without liability to the Authority or any affiliated entity. City withdrawal shall not
affect the validity of any voluntary assessment contracts (a) entered prior to the date of such
withdrawal or (b) entered into after the date of such withdrawal so long as the applications for
such voluntary assessment contracts were submitted to and approved by WRCOG prior to the
date of City’s notice of withdrawal.
2. Mutual Indemnification and Liability. Authority and City shall mutually defend,
indemnify and hold the other party and its directors, officials, officers, employees and agents free
and harmless from any and all claims, demands, causes of action, costs, expenses, liabilities,
losses, damages or injuries of any kind, in law or equity, to property or persons, including
wrongful death, to the extent arising out of the willful misconduct or negligent acts, errors or
omissions of the indemnifying party or its directors, officials, officers, employees and agents in
connection with the California HERO Program administered under this JPA Amendment,
including without limitation the payment of expert witness fees and attorney’s fees and other
related costs and expenses, but excluding payment of consequential damages. Without limiting
the foregoing, Section 5.2 of the Authority JPA shall not apply to this JPA Amendment. In no
Exhibit A to Resolution
A - 4
event shall any of Authority’s Regular Members or their officials, officers or employees be held
directly liable for any damages or liability resulting out of this JPA Amendment.
3. Environmental Review. Authority shall be the lead agency under the California
Environmental Quality Act for any environmental review that may be required in implementing
or administering the California HERO Program under this JPA Amendment.
4. Cooperative Effort. City shall cooperate with Authority by providing information
and other assistance in order for Authority to meet its obligations hereunder. City recognizes
that one of its responsibilities related to the California HERO Program will include any
permitting or inspection requirements as established by City.
5. Notice. Any and all communications and/or notices in connection with this JPA
Amendment shall be either hand-delivered or sent by United States first class mail, postage
prepaid, and addressed as follows:
Authority:
Western Riverside Council of Governments
4080 Lemon Street, 3rd Floor. MS1032
Riverside, CA 92501-3609
Attn: Executive Director
City:
Don Schwartz, Assistant City Manager
130 Avram Avenue
Rohnert Park, CA 94928
6. Entire Agreement. This JPA Amendment, together with the Authority JPA,
constitutes the entire agreement among the Parties pertaining to the subject matter hereof. This
JPA Amendment supersedes any and all other agreements, either oral or in writing, among the
Parties with respect to the subject matter hereof and contains all of the covenants and agreements
among them with respect to said matters, and each Party acknowledges that no representation,
inducement, promise of agreement, oral or otherwise, has been made by the other Party or
anyone acting on behalf of the other Party that is not embodied herein.
7. Successors and Assigns. This JPA Amendment and each of its covenants and
conditions shall be binding on and shall inure to the benefit of the Parties and their respective
successors and assigns. A Party may only assign or transfer its rights and obligations under this
JPA Amendment with prior written approval of the other Party, which approval shall not be
unreasonably withheld.
8. Attorney’s Fees. If any action at law or equity, including any action for
declaratory relief is brought to enforce or interpret the provisions of this Agreement, each Party
to the litigation shall bear its own attorney’s fees and costs.
9. Governing Law. This JPA Amendment shall be governed by and construed in
accordance with the laws of the State of California, as applicable.
Exhibit A to Resolution
A - 5
10. No Third Party Beneficiaries. This JPA Amendment shall not create any right or
interest in the public, or any member thereof, as a third party beneficiary hereof, nor shall it
authorize anyone not a Party to this JPA Amendment to maintain a suit for personal injuries or
property damages under the provisions of this JPA Amendment. The duties, obligations, and
responsibilities of the Parties to this JPA Amendment with respect to third party beneficiaries
shall remain as imposed under existing state and federal law.
11. Severability. In the event one or more of the provisions contained in this JPA
Amendment is held invalid, illegal or unenforceable by any court of competent jurisdiction, such
portion shall be deemed severed from this JPA Amendment and the remaining parts of this JPA
Amendment shall remain in full force and effect as though such invalid, illegal, or unenforceable
portion had never been a part of this JPA Amendment.
12. Headings. The paragraph headings used in this JPA Amendment are for the
convenience of the Parties and are not intended to be used as an aid to interpretation.
13. Amendment. This JPA Amendment may be modified or amended by the Parties
at any time. Such modifications or amendments must be mutually agreed upon and executed in
writing by both Parties. Verbal modifications or amendments to this JPA Amendment shall be of
no effect.
14. Effective Date. This JPA Amendment shall become effective upon the execution
thereof by the Parties hereto.
IN WITNESS WHEREOF, the Parties hereto have caused this JPA Amendment to be executed
and attested by their officers thereunto duly authorized as of the date first above written.
[SIGNATURES ON FOLLOWING PAGES]
Exhibit A to Resolution
A - 6
WESTERN RIVERSIDE COUNCIL OF GOVERNMENTS
By: Date:
Executive Committee Chair
Western Riverside Council of Governments
CITY OF ROHNERT PARK
By: Date:
Darrin Jenkins, City Manager
Approved as to Form:
_______________________________________
City Attorney
ATTEST:
_______________________________________
City Clerk
Updated through June 4, 2013
Revised
JOINT POWERS AGREEMENT OF
THE WESTERN RIVERSIDE
COUNCIL OF GOVERNMENTS
This Agreement is made and entered into on the 1st day of April, 1991, pursuant
to Government Code Section 6500 et. seq. and other pertinent provisions of law, by and
between six or more of the cities located within Western Riverside County and the
County of Riverside.
R E C I T A L S
A. Each member and party to this Agreement is a governmental entity
established by law with full powers of government in legislative, administrative, financial,
and other related fields.
B. The purpose of the formation is to provide an agency to conduct studies
and projects designed to improve and coordinate the common governmental
responsibilities and services on an area-wide and regional basis through the
establishment of an association of governments. The Council will explore areas of inter-
governmental cooperation and coordination of government programs and provide
recommendations and solutions to problems of common and general concern.
C. When authorized pursuant to an Implementation Agreement, the Council
shall manage and administer thereunder.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties hereto agree as follows:
20323.00002\1494125.6
I.
PURPOSE AND POWERS
1.1 Agency Created.
There is hereby created a public entity to be known as the "Western
Riverside Council of Governments" ("WRCOG"). WRCOG is formed by this Agreement
pursuant to the provision of Government Code Section 6500 et. seq. and other
pertinent provision of law. WRCOG shall be a public entity separate from the parties
hereto.
1.2 Powers.
1.2.1. WRCOG established hereunder shall perform all necessary
functions to fulfill the purposes of this Agreement. Among other functions, WRCOG
shall:
a. Serve as a forum for consideration, study and recommendation on
area-wide and regional problems;
b. Assemble information helpful in the consideration of problems
peculiar to Western Riverside County;
c. Explore practical avenues for intergovernmental cooperation,
coordination and action in the interest of local public welfare and means of
improvements in the administration of governmental services; and
d. Serve as the clearinghouse review body for Federally-funded
projects in accordance with Circular A-95 in conjunction with the Southern California
Association of Governments.
20323.00002\1494125.6 2
1.2.2. The Council shall have the power in its own name to do any of the
following;
a. When necessary for the day to day operation of the Council, to
make and enter into contracts;
b. To contract for the services of engineers, attorneys, planners,
financial consultants and separate and apart therefrom to employ such other persons,
as it deems necessary;
c. To apply for an appropriate grant or grants under any federal, state,
or local programs.
d. To receive gifts, contributions and donations of property, funds,
services and other forms of financial assistance from persons, firms, corporations and
any governmental entity;
e. To lease, acquire, construct, manage, maintain, and operate any
buildings, works, or improvements;
f. To delegate some or all of its powers to the Executive Committee
and the Executive Director of the Council as hereinafter provided.
1.2.3 The association shall have the power in its own name, only with the
approval of all affected member agencies to;
a. Acquire, hold and dispose of property by eminent domain, lease,
lease purchase or sale.
b. To incur debts, liabilities, obligations, and issue bonds;
II.
ORGANIZATION OF COUNCIL
20323.00002\1494125.6 3
2.1 Parties.
The parties to WRCOG shall be the County of Riverside and each city
located within Western Riverside County which has executed or hereafter executes this
Agreement, or any addenda, amendment, or supplement thereto and agrees to such
become a member upon such terms and conditions as established by the general
council or executive committee, and which has not, pursuant to provisions hereof,
withdrawn therefrom. Only the parties identified in this section and Associate Members
approved under section 8.2 of this Agreement, if any, shall be considered contracting
parties to this Agreement under Government Code section 6502, provided that the
rights of any Associate Member under this Agreement shall be limited solely those
rights expressly set forth in a PACE Agreement authorized in section 8.2 of this
Agreement.
2.2 Names.
The names, particular capacities and addresses of the parties at any time shall
be shown on Exhibit "A" attached hereto, as amended or supplemented from time to
time.
2.3 Duties.
WRCOG shall do whatever is necessary and required to carry out the
purposes of this agreement and when authorized by an Implementation Agreement
pursuant to section 1.2.3 as appropriate, to make and enter into such contracts, incur
such debts and obligations, assess contributions from the members, and perform such
other acts as are necessary to the accomplishment of the purposes of such agreement,
20323.00002\1494125.6 4
within the provisions of Government Code Section 6500 et seq. and as prescribed by
the laws of the State of California.
2.4 Governing Body.
2.4.1. WRCOG shall be governed by a General Assembly with
membership consisting of the appropriate representatives from the County of Riverside,
each city which is a signatory to this Agreement, Western Municipal Water District, and
Eastern Municipal Water District, the number of which shall be determined as
hereinafter set forth. The General Assembly shall meet at least once annually,
preferably scheduled in the evening. Each member agency of the General Assembly
shall have one vote for each mayor, council member, county supervisor, and water
district board member present at the General Assembly. The General Assembly shall
act only upon a majority of a quorum. A quorum shall consist of a majority of the total
authorized representatives, provided that members representing a majority of the
member agencies are present. The General Assembly shall adopt and amend by-laws
for the administration and management of this Agreement, which when adopted and
approved shall be an integral part of this Agreement. Such by-laws may provide for the
management and administration of this Agreement.
2.4.2. There shall be an Executive Committee which exercises the powers
of this Agreement between sessions of the General Assembly. Members of the
Executive Committee shall be the Mayor from each of the member cities, four members
of the Riverside County Board of Supervisors and the President of each Water District,
the remaining member of the Board of Supervisors shall serve as an alternate, except
any City Council, at its discretion, can appoint a Mayor Pro Tem or other city council
20323.00002\1494125.6 5
member in place of the Mayor, and each water district board, at its discretion, can
appoint another board member in place of the President. The Executive Committee
shall act only upon a majority of a quorum. A quorum shall consist of a majority of the
member agencies. Membership of the Water Districts on the General Assembly and
Executive Committee of WRCOG shall be conditioned on the Water Districts entering
into a separate Memorandums of Understanding with WRCOG.
2.4.3. Each member of the General Assembly and the Executive
Committee shall be a current member of the legislative body such member represents.
2.4.4. Each participating member on the Executive Committee shall also
have an alternate, who must also be a current member of the legislative body of the
party such alternate represents. The name of the alternate members shall be on file
with the Executive Committee. In the absence of the regular member from an agency,
the alternate member from such agency shall assume all rights and duties of the absent
regular member.
2.5 Executive Director.
The Executive Director shall be the chief administrative officer of the
Council. He shall receive such compensation as may be fixed by the Executive
Committee. The powers and duties of the Executive Director shall be subject to the
authority of the Executive Committee and include the following:
a. To appoint, direct and remove employees of the Council.
b. Annually to prepare and present a proposed budget to the Executive
Committee and General Assembly.
c. Serve as Secretary of the Council and of the Executive Committee.
20323.00002\1494125.6 6
d. To attend meetings of the Executive Committee.
e. To perform such other and additional duties as the Executive Committee
may require.
2.6 Principal Office.
The principal office of WRCOG shall be established by the Executive
Committee and shall be located within Western Riverside County. The Executive
Committee is hereby granted full power and authority to change said principal office
from one location to another within Western Riverside County. Any change shall be
noted by the Secretary under this section but shall not be considered an amendment to
this Agreement.
2.7 Meetings.
The Executive Committee shall meet at the principal office of the agency
or at such other place as may be designated by the Executive Committee. The time
and place of regular meetings of the Executive Committee shall be determined by
resolution adopted by the Executive Committee; a copy of such resolution shall be
furnished to each party hereto. Regular, adjourned and special meetings shall be called
and conducted in accordance with the provisions of the Ralph M. Brown Act,
Government Code Section 54950 et. seq., as it may be amended.
2.8 Powers and Limitations of the Executive Committee.
Unless otherwise provided herein, each member or participating alternate
of the Executive Committee shall be entitled to one vote, and a vote of the majority of
those present and qualified to vote constituting a quorum may adopt any motion,
20323.00002\1494125.6 7
resolution, or order and take any other action they deem appropriate to carry forward
the objectives of the Council.
2.9 Minutes.
The secretary of the Council shall cause to be kept minutes of regular
adjourned regular and special meetings of the General Assembly and Executive
Committee, and shall cause a copy of the minutes to be forwarded to each member and
to each of the members hereto.
2.10 Rules.
The Executive Committee may adopt from time to time such rules and
regulations for the conduct of its affairs consistent with this agreement or any
Implementation Agreement.
2.11 Vote or Assent of Members.
The vote, assent or approval of the members in any manner as may be
required, hereunder shall be evidenced by a certified copy of the action of the governing
body of such party filed with the Council. It shall be the responsibility of the Executive
Director to obtain certified copies of said actions.
2.12 Officers.
There shall be selected from the membership of the Executive Committee,
a chairperson and a vice chairperson. The Executive Director shall be the secretary.
The Treasurer of the County of Riverside shall be the Treasurer of the Council and the
Controller or Auditor of the County of Riverside shall be the Auditor of the Council.
Such persons shall possess the powers of, and shall perform the treasurer and auditor
functions respectively, for WRCOG and perform those functions required of them by
20323.00002\1494125.6 8
Government Code Sections 6505, 6505.5 and 6505.6, and by all other applicable laws
and regulations, including any subsequent amendments thereto.
The chairperson and vice chairperson, shall hold office for a period of one
year commencing July 1st of each and every fiscal year; provided, however, the first
chairperson and vice chairperson appointed shall hold office from the date of
appointment to June 30th of the ensuing fiscal year. Except for the Executive Director,
any officer, employee, or agent of the Executive Committee may also be an officer,
employee, or agent of any of the members. The appointment by the Executive
Committee of such a person shall be evidence that the two positions are compatible.
2.13 Committees.
The Executive Committee may, as it deems appropriate, appoint
committees to accomplish the purposes set forth herein. All committee meetings of
WRCOG, including those of the Executive Committee, shall be open to all members.
2.14 Additional Officers and Employees.
The Executive Committee shall have the power to authorize such
additional officers and assistants as may be appropriate. Such officers and employees
may also be, but are not required to be, officers and employees of the individual
members.
2.15 Bonding Requirement.
The officers or persons who have charge of, handle, or have access to
any property of WRCOG shall be the members of the Executive Committee, the
treasurer, the Executive Director, and any other officers or persons to be designated or
empowered by the Executive Committee. Each such officer or person shall be required
20323.00002\1494125.6 9
to file an official bond with the Executive Committee in an amount which shall be
established by the Executive Committee. Should the existing bond or bonds of any
such officer be extended to cover the obligations provided herein, said bond shall be the
official bond required herein. The premiums on any such bonds attributable to the
coverage required herein shall be appropriate expenses of WRCOG.
2.16 Status of Officers and Employees.
All of the privileges and immunities from liability, exemption from laws,
ordinances and rules, all pension, relief, disability, worker's compensation, and other
benefits which apply to the activity of officers, agents, or employees of any of the
members when performing their respective functions shall apply to them to the same
degree and extent while engaged in the performance of any of the functions and other
duties under this Agreement. None of the officers, agents, or employees appointed by
the Executive Committee shall be deemed, by reason of their employment by the
Executive Committee, to be employed by any of the members or, by reason of their
employment by the Executive Committee, to be subject to any of the requirements of
such members.
2.17 Restrictions.
Pursuant to Government Code Section 6509, for the purposes of determining the
restrictions to be imposed by the Council in its exercise of the above-described joint
powers, reference shall be made to, and the Council shall observe, the restrictions
imposed upon the County of Riverside.
2.18 Water Districts and TUMF Matters.
20323.00002\1494125.6 10
Pursuant to this Joint Powers Agreement, WRCOG administers the
Transportation Mitigation Fee (“TUMF”) for cities in western Riverside County. The fee
was established prior to the Water District’s involvement with WRCOG and will fund
transportation improvements for the benefit of the County of Riverside and the cities in
western Riverside County. As such, the Western Municipal Water District and the
Eastern Municipal Water District General Assembly and Executive Committee Members
shall not vote on any matter related to the administration of the TUMF program or the
expenditure of TUMF revenues.
III
FUNDS AND PROPERTY
3.1 Treasurer.
The Treasury of the member agency whose Treasurer is the Treasurer for
WRCOG shall be the depository for WRCOG. The Treasurer of the Council shall have
custody of all funds and shall provide for strict accountability thereof in accordance with
Government Code Section 6505.5 and other applicable laws of the State of California.
He or she shall perform all of the duties required in Government Code Section 6505 and
following, such other duties as may be prescribed by the Executive Committee.
3.2. Expenditure of Funds.
The funds under this Agreement shall be expended only in furtherance of the
purposes hereof and in accordance with the laws of the State of California and standard
accounting practices shall be used to account for all funds received and disbursed.
3.3. Fiscal Year.
20323.00002\1494125.6 11
WRCOG shall be operated on a fiscal year basis, beginning on July 1 of each
year and continuing until June 30 of the succeeding year. Prior to July 1 of each year,
the General Assembly shall adopt a final budget for the expenditures of WRCOG during
the following fiscal Year.
3.4. Contributions/Public Funds.
In preparing the budget, the General Assembly by majority vote of a quorum shall
determine the amount of funds which will be required from its members for the purposes
of this Agreement. The funds required from its members after approval of the final
budget shall be raised by contributions 50% of which will be assessed on a per capita
basis and 50% on an assessed valuation basis, each city paying on the basis of its
population and assessed valuation and the County paying on the basis of the population
and assessed valuation within the unincorporated area of Western Riverside County as
defined in the by-laws. The parties, when informed of their respective contributions,
shall pay the same before August lst of the fiscal year for which they are assessed or
within sixty days of being informed of the assessment, whichever occurs later. In
addition to the contributions provided, advances of public funds from the parties may be
made for the purposes of this Agreement. When such advances are made, they shall
be repaid from the first available funds of WRCOG.
The General Assembly shall have the power to determine that personnel,
equipment or property of one or more of the parties to the Agreement may be used in
lieu of fund contributions or advances.
20323.00002\1494125.6 12
All contributions and funds shall be paid to WRCOG and shall be disbursed by a
majority vote of a quorum of the Executive Committee, as authorized by the approved
budget.
3.5 Contribution from Water Districts.
The provision of section 3.4 above shall be inapplicable to the Western Municipal
Water District and the Eastern Municipal Water District. The amount of contributions
from these water districts shall be through the WRCOG budget process.
IV
BUDGETS AND DISBURSEMENTS
4.1 Annual Budget.
The Executive Committee may at any time amend the budget to
incorporate additional income and disbursements that might become available to
WRCOG for its purposes during a fiscal year.
4.2 Disbursements.
The Executive Director shall request warrants from the Auditor in
accordance with budgets approved by the General Assembly or Executive Committee
subject to quarterly review by the Executive Committee. The Treasurer shall pay such
claims or disbursements and such requisitions for payment in accordance with rules,
regulations, policies, procedures and bylaws adopted by the Executive Committee.
4.3 Accounts.
All funds will be placed in appropriate accounts and the receipt, transfer,
or disbursement of such funds during the term of this Agreement shall be accounted for
in accordance with generally accepted accounting principles applicable to governmental
20323.00002\1494125.6 13
entities and pursuant to Government Code Sections 6505 et seq. and any other
applicable laws of the State of California. There shall be strict accountability of all
funds. All revenues and expenditures shall be reported to the Executive Committee.
4.4 Expenditures Within Approved Annual Budget.
All expenditures shall be made within the approved annual budget. No
expenditures in excess of those budgeted shall be made without the approval of a
majority of a quorum of the Executive Committee.
4.5 Audit.
The records and accounts of WRCOG shall be audited annually by an
independent certified public accountant and copies of such audit report shall be filed
with the County Auditor, State Controller and each party to WRCOG no later than fifteen
(15) days after receipt of said audit by the Executive Committee.
4.6 Reimbursement of Funds.
Grant funds received by WRCOG from any federal, state, or local agency
to pay for budgeted expenditures for which WRCOG has received all or a portion of said
funds from the parties hereto shall be used as determined by WRCOG's Executive
Committee.
V
LIABILITIES
5.1 Liabilities.
The debts, liabilities, and obligation of WRCOG shall be the debts,
liabilities, or obligations of WRCOG alone and not of the parties to this Agreement.
5.2 Hold Harmless and Indemnity.
20323.00002\1494125.6 14
Each party hereto agrees to indemnify and hold the other parties harmless
from all liability for damage, actual or alleged, to persons or property arising out of or
resulting from negligent acts or omissions of the indemnifying party or its employees.
Where the General Assembly or Executive Committee itself or its agents or employees
are held liable for injuries to persons or property, each party's liability for contribution or
indemnity for such injuries shall be based proportionately upon the contributions (less
voluntary contributions) of each member. In the event of liability imposed upon any of
the parties to this Agreement, or upon the General Assembly or Executive Committee
created by this Agreement, for injury which is caused by the negligent or wrongful act or
omission of any of the parties in the performance of this Agreement, the contribution of
the party or parties not directly responsible for the negligent or wrongful act or omission
shall be limited to One Hundred Dollars ($100.00). The party or parties directly
responsible for the negligent or wrongful acts or omissions shall indemnify, defend, and
hold all other parties harmless from any liability for personal injury or property damage
arising out of the performance of this Agreement. The voting for or against a matter
being considered by the General Assembly or executive or other committee or
WRCOG, or abstention from voting on such matter, shall not be construed to constitute
a wrongful act or omission within the meaning of this Subsection.
VI
ADMISSION AND WITHDRAWAL OF PARTIES
6.1 Admission of New Parties.
It is recognized that additional cities other than the original parties, may
wish to participate in WRCOG. Any Western Riverside County city may become a party
20323.00002\1494125.6 15
to WRCOG upon such terms and conditions as established by the General Assembly or
Executive Committee. Any Western Riverside County city shall become a party to
WRCOG by the adoption by the city council of this agreement and the execution of a
written addendum thereto agreeing to the terms of this Agreement and agreeing to any
additional terms and conditions that may be established by the general assembly or
Executive Committee. Special districts which are significantly involved in regional
problems and the boundaries of which include territory within the collective area of the
membership shall be eligible for advisory membership in the Council. The
representative of any such advisory member may participate in the work of committees
of the Council.
6.2 Withdrawal from WRCOG.
It is fully anticipated that each party hereto shall participate in WRCOG
until the purposes set forth in this Agreement are accomplished. The withdrawal of any
party, either voluntary or involuntary, unless otherwise provided by the General
Assembly or Executive Committee, shall be conditioned as follows:
a. In the case of a voluntary withdrawal following a properly noticed
public hearing, written notice shall be given to WRCOG, six months prior to the effective
date of withdrawal;
b. Withdrawal shall not relieve the party of its proportionate share of
any debts or other liabilities incurred by WRCOG prior to the effective date of the
parties' notice of withdrawal;
c. Unless otherwise provided by a unanimous vote of the Executive
Committee, withdrawal shall result in the forfeiture of that party's rights and claims
20323.00002\1494125.6 16
relating to distribution of property and funds upon termination of WRCOG as set forth in
Section VII below;
d. Withdrawal from any Implementation Agreement shall not be
deemed withdrawal from membership in WRCOG.
VII
TERMINATION AND DISPOSITION OF ASSETS
7.1 Termination of this Agreement.
WRCOG shall continue to exercise the joint powers herein until the
termination of this Agreement and any extension thereof or until the parties shall have
mutually rescinded this Agreement; providing, however, that WRCOG and this
Agreement shall continue to exist for the purposes of disposing of all claims, distribution
of assets and all other functions necessary to conclude the affairs of WRCOG.
Termination shall be accomplished by written consent of all of the parties,
or shall occur upon the withdrawal from WRCOG of a sufficient number of the agencies
enumerated herein so as to leave less than five of the enumerated agencies remaining
in WRCOG.
7.2 Distribution of Property and Funds.
In the event of the termination of this Agreement, any property interest
remaining in WRCOG following the discharge of all obligations shall be disposed of as
the Executive Committee shall determine with the objective of distributing to each
remaining party a proportionate return on the contributions made to such properties by
such parties, less previous returns, if any.
VIII
20323.00002\1494125.6 17
PACE IMPLEMENTATION AND PARTICIPATION AGREEMENTS;
ASSOCIATE MEMBERSHIP
8.1 Execution of Agreement.
When authorized by the Executive Committee, any affected member
agency or agencies enumerated herein, may execute an Implementation Agreement for
the purpose of authorizing WRCOG to implement, manage and administer area-wide
and regional programs in the interest of the local public welfare. The costs incurred by
WRCOG in implementing a program including indirect costs, shall be assessed only to
those public agencies who are parties to that Implementation Agreement.
8.2 PACE Agreements; Associate Membership.
WRCOG shall be empowered to establish and operate one or more
Property Assessed Clean Energy (“PACE”) programs pursuant to Chapter 29 of the
Improvement Bond Act of 1911, being Division 7 of the California Streets and Highways
Code, and to enter into one or more agreements, including without limitation,
participation agreements, implementation agreements and joint powers agreements and
amendments thereto to fulfill such programs both within and outside the jurisdictional
boundaries of WRCOG.
WRCOG, acting through its Executive Committee, shall be empowered to
establish an “Associate Member” status that provides membership in WRCOG to local
jurisdictions that are outside WRCOG’s jurisdictional boundaries but within whose
boundaries a PACE program will be established and implemented by WRCOG. Said
local jurisdictions shall become Associate Members of WRCOG by adopting one or
more agreements (the “PACE Agreement”) on the terms and conditions established by
20323.00002\1494125.6 18
the Executive Committee and consistent with the requirements of the Joint Exercise of
Powers Act, being 5 of Division 7, Title 1 of the California Government Code (Sections
6500 et seq.). The rights of Associate Members shall be limited solely to those terms
and conditions expressly set forth in the PACE Agreement for the purposes of
implementing the PACE program within their jurisdictional boundaries. Except as
expressly provided for by the PACE Agreement, Associate Members shall not have any
rights otherwise granted to WRCOG’s members by this Agreement, including but not
limited to the right to vote, right to amend this Agreement, and right to sit on committees
or boards established under this Agreement or by action of the Executive Committee or
the General Assembly, including, without limitation, the General Assembly and the
Executive Committee.
IX
MISCELLANEOUS
9.1 Amendments.
This Agreement may be amended with the approval of not less than
two-thirds (2/3) of all member agencies.
20323.00002\1494125.6 19
9.2 Notice.
Any notice or instrument required to be given or delivered by depositing
the same in any United States Post Office, registered or certified, postage prepaid,
addressed to the addresses of the parties as shown on Exhibit "A", shall be deemed to
have been received by the party to whom the same is addressed at the expiration of
seventy-two (72) hours after deposit of the same in the United States Post Office for
transmission by registered or certified mail as aforesaid.
9.3 Effective Date.
This Agreement shall be effective and WRCOG shall exist from and after
such date as this Agreement has been executed by any seven or more of the public
agencies, including the County of Riverside, as listed on page 1 hereof.
20323.00002\1494125.6 20
9.4 Arbitration.
Any controversy or claim between any two or more parties to this
Agreement, or between any such party or parties and WRCOG, with respect to
disputes, demands, differences, controversies, or misunderstandings arising in relation
to interpretation of this Agreement, or any breach thereof, shall be submitted to and
determined by arbitration. The party desiring to initiate arbitration shall give notice of its
intention to arbitrate to every other party to this Agreement and to the Executive Director
of the Council. Such notice shall designate as "respondents" such other parties as the
initiating party intends to have bound by any award made therein. Any party not so
designated but which desires to join in the arbitration may, within ten (10) days of
service upon it of such notice, file with all other parties and with the Executive Director
of the Council a response indicating its intention to join in and to be bound by the results
of the arbitration, and further designating any other parties it wishes to name as a
respondent. Within twenty (20) days of the service of the initial demand for arbitration,
the initiating party and the respondent or respondents shall each designate a person to
act as an arbitrator. The designated arbitrators shall mutually designate the minimal
number of additional persons as arbitrators as may be necessary to create an odd total
number of arbitrators but not less than three to serve as arbitrator(s).
The arbitrators shall proceed to arbitrate the matter in accordance with the
provisions of Title 9 of Part 3 of the Code of Civil Procedure, Section 1280 et. seq. The
parties to this Agreement agree that the decision of the arbitrators will be binding and
will not be subject to judicial review except on the ground that the arbitrators have
exceeded the scope of their authority.
20323.00002\1494125.6 21
9.5 Partial Invalidity.
If any one or more of the terms, provisions, sections, promises, covenants
or conditions of this Agreement shall to any extent be adjudged invalid, unenforceable,
void or voidable for any reason whatsoever by a court of competent jurisdiction, each
and all of the remaining terms, provisions, sections, promises, covenants and conditions
of this Agreement shall not be affected thereby and shall be valid and enforceable to the
fullest extent permitted by law.
9.6 Successors.
This Agreement shall be binding upon and shall inure to the benefit of the
successors of the parties hereto.
9.7 Assignment.
The parties hereto shall not assign any rights or obligations under this
Agreement without written consent of all other parties.
9.8 Execution.
The Board of Supervisors of the County of Riverside and the city councils
of the cities enumerated herein have each authorized execution of this Agreement as
evidenced by the authorized signatures below, respectively.
20323.00002\1494125.6 22
Original Members Agencies
1. City of Banning
2. City of Beaumont (withdrawn)
3. City of Calimesa
4. City of Canyon Lake
5. City of Corona
6. City of Hemet
7. City of Lake Elsinore
8. City of Moreno Valley
9. City of Murrieta
10. City of Norco
11. City of Perris
12. City of Riverside
13. City of San Jacinto
14. City of Temecula
15. County of Riverside
Additional City Members
1. City of Eastvale (added on 08/02/2010, Resolution 01-11)
2. City of Jurupa Valley (added on 07/29/2011, Resolution 02-12)
3. City of Menifee (added on 10/06/2008, Resolution 03-09)
4. City of W ildomar (added on 08/04/2008, Resolution 01-09)
20323.00002\1494125.6 23
THE WESTERN RIVERSIDE
COUNCIL OF GOVERNMENTS
Participating Agencies
5. Eastern Municipal Water District (membership on the Governing Board
of WRCOG, 05/11/2009)
6. Western Municipal Water District (membership on the Governing Board
of WRCOG, 05/11/2009)
7. Riverside County Superintendent of Schools (membership as an ex-
officio, advisory member of WRCOG, 11/07/2011)
8. Morongo Band of Mission Indians (membership as an ex-officio,
advisory member of WRCOG, 6/4/2013)
20323.00002\1494125.6 24
Jones Hall, A Professional Law Corporation 4-26-10
1
RESOLUTION NO. 2015-133
RESOLUTION AUTHORIZING THE CITY OF ROHNERT PARK TO JOIN THE
CALIFORNIA FIRST PROGRAM; AUTHORIZING THE CALIFORNIA STATEWIDE
COMMUNITIES DEVELOPMENT AUTHORITY TO ACCEPT APPLICATIONS
FROM PROPERTY OWNERS, CONDUCT CONTRACTUAL ASSESSMENT
PROCEEDINGS AND LEVY CONTRACTUAL ASSESSMENTS WITHIN THE
INCORPORATED TERRITORY OF THE CITY; AND AUTHORIZING RELATED
ACTIONS
WHEREAS, the California Statewide Communities Development Authority (“California
Communities”) is a joint exercise of powers authority the members of which include numerous
cities and counties in the State of California, including the City of Rohnert Park (the “City”); and
WHEREAS, California Communities has established the CaliforniaFIRST program (the
“CaliforniaFIRST Program”) and will provide financing for certain improvements authorized by
Chapter 29 of Division 7 of the Streets & Highways Code (“Chapter 29”), including, but not
limited to, renewable energy, energy efficiency and water efficiency improvements and seismic
strengthening improvements (the “Improvements”) through the levy of contractual assessments
pursuant to Chapter 29 of Division 7 of the Streets & Highways Code (“Chapter 29”) and the
issuance of improvement bonds (the “Bonds”) under the Improvement Bond Act of 1915 (Streets
and Highways Code Sections 8500 and following) (the “1915 Act”) upon the security of the
unpaid contractual assessments; and
WHEREAS, Chapter 29 provides that assessments may be levied under its provisions
only with the free and willing consent of the owner of each lot or parcel on which an assessment
is levied at the time the assessment is levied; and
WHEREAS, the City desires to allow the owners of property (“Participating Property
Owners”) within the incorporated territory of the City to participate in the CaliforniaFIRST
Program and to allow California Communities to conduct assessment proceedings under Chapter
29 within the incorporated territory of the City and to issue Bonds under the 1915 Act to finance
the Improvements; and
WHEREAS, California Communities will conduct assessment proceedings under
Chapter 29 and issue Bonds under the 1915 Act to finance Improvements;
WHEREAS, the City will not be responsible for the conduct of any assessment
proceedings; the levy or collection of assessments or any required remedial action in the case of
delinquencies in such assessment payments; or the issuance, sale or administration of the Bonds
or any other bonds issued in connection with the CaliforniaFIRST Program.
2
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Rohnert
Park as follows:
Section 1. This City Council hereby finds and declares that properties in the City’s
incorporated area will benefit from the availability of the CaliforniaFIRST Program within the
incorporated territory of the City and, pursuant thereto, the conduct of special assessment
proceedings by California Communities pursuant to Chapter 29 and the issuance of Bonds under
the 1915 Act.
Section 2. In connection with the CaliforniaFIRST Program, the City hereby
consents to the conduct of special assessment proceedings by California Communities pursuant
to Chapter 29 on any property within its jurisdiction and the issuance of Bonds under the 1915
Act; provided, that
(1) The Participating Property Owners, who shall be the legal owners of such
property, execute a contract pursuant to Chapter 29 and comply with other applicable
provisions of California law in order to accomplish the valid levy of assessments; and
(2) The City will not be responsible for the conduct of any assessment
proceedings; the levy or collection of assessments or any required remedial action in the
case of delinquencies in such assessment payments; or the issuance, sale or
administration of the Bonds or any other bonds issued in connection with the
CaliforniaFIRST Program.
(3) The issuance of Bonds will occur following receipt of a final judgment in
a validation action filed by California Communities pursuant to Code of Civil Procedure
Section 860 that the Bonds are legal obligations of California Communities.
Section 3. Pursuant to the requirements of Chapter 29, California Communities has
prepared and will update from time to time the “Program Report” for the CaliforniaFIRST
Program (the “Program Report”), and California Communities will undertake assessment
proceedings and the financing of Improvements as set forth in the Program Report.
Section 4. The appropriate officials and staff of the City are hereby authorized and
directed to make applications for the CaliforniaFIRST program available to all property owners
who wish to finance Improvements; provided, that California Communities shall be responsible
for providing such applications and related materials at its own expense. The following staff
person/s, together with any other staff persons chosen by the City Manager from time to time, are
hereby designated as the contact person/s for California Communities in connection with the
CaliforniaFIRST Program: Don Schwartz, Assistant City Manager.
Section 5. The appropriate officials and staff of the City are hereby authorized and
directed to execute and deliver such closing certificates, requisitions, agreements and related
documents as are reasonably required by California Communities in accordance with the
Program Report to implement the CaliforniaFIRST Program for Participating Property Owners.
3
Section 6. The City Council hereby finds that adoption of this Resolution is not a
“project” under the California Environmental Quality Act, because the Resolution does not
involve any commitment to a specific project which may result in a potentially significant
physical impact on the environment, as contemplated by Title 14, California Code of
Regulations, Section 15378(b)(4)).
Section 7. This Resolution shall take effect immediately upon its adoption. The City
Clerk is hereby authorized and directed to transmit a certified copy of this resolution to the
Secretary of California Communities.
DULY AND REGULARLY ADOPTED this 11th day of August, 2015.
CITY OF ROHNERT PARK
_____________________________________
Amy O. Ahanotu, Mayor
ATTEST:
____________________________________
JoAnne M. Buergler, City Clerk
Sale and Development of City
Property for Hotel Development
•Purchase and Sale Agreement
•Development Terms
•Economic Impact
Location of Property for Sale
The Property
5870 Labath
City attempt to sell property since 2003
Recession and Casino caused delays
12.25 acres
Vacant land
Zoned Regional-Commercial
Experienced Buyers
356 Advisors – experienced hotel
developer
MJW Investments - equity partner
Corton Partners - retail developer
anticipated
Desire to begin project as soon as
possible
Agreement For Purchase and Sale
$7.1 million sales price
◦$935,000 for commission, reimbursements,
loan payments
◦Net revenue $6.2 million
$300,000 in deposits
◦$50,000 at execution of the PSA
◦$100,000 at end of due diligence period
◦$150,000 18 months after PSA
Agreement For Purchase and Sale
Minimum development of 125 room
upscale hotel
90 day due diligence period
Sale within 2 years; two 6-month
extensions at $100,000 each
Developer pays for or completes related
infrastructure improvements
Agreement For Purchase and Sale
Hotel construction must begin within 3
years
Hotel must be completed within 18
months of start
City has repurchase option if
development not completed per terms
Sufficient Water Supply
20% of City supply from recycled water
Of remaining:
◦2/3 from Lake Sonoma, with 3 year supply
◦1/3 from groundwater, at high levels
Benefits from Agreement
$6.2 million in proceeds
Economic Development
◦Converting vacant land to uses that generate:
Jobs
Local economic activity
Tax revenue ($500,000/year +)
◦Attract more visitors to Rohnert Park
Options for Use of Proceeds
Wait to decide until sale closes
Capital projects
Pay down unfunded liabilities
Other Council-designated purpose
Recommendation
Adopt Resolution approving the Purchase
and Sale Agreement
Provide direction regarding the use of
proceeds
1
Meeting Date: August 11, 2015
Department: Administration
Submitted By: Darrin Jenkins, City Manager
Prepared By: Don Schwartz, Assistant City Manager and Bryce Atkins, Senior Analyst
Agenda Title: Adoption of Resolution of the City Council of the City of Rohnert
Park Authorizing and Approving an Agreement for Purchase and
Sale (Including Joint Escrow Instructions) and Terms of Development
for 5870 Labath Avenue (Stadium Lands) And Designation of Use of
Proceeds From Property Sale.
RECOMMENDED ACTION:
Council:
1. Adopt a resolution authorizing and approving an Agreement for Purchase and Sale
(Including Joint Escrow Instructions) and Terms of Development for 5870 Labath with
356 Advisors and MJW Investments (collectively the “Buyers”) and authorizing the
Mayor to execute the Agreement and the Mayor and City Manager to take all other
actions necessary to consummate the transaction contemplated by the resolution.
2. Designate use of the sales proceeds from the sale of the subject property.
BACKGROUND:
The City of Rohnert Park (“City”) has been planning for many years to sell 12.25 acres of vacant
land located at 5870 Labath (“Property”). The City designated these lands for sale in 2003 to
grow our local economy. The sale of the Property has been delayed due to the recession and the
development of the Graton Casino.
In February of 2008, the City adopted the Stadium Area Master Plan Planned Development
Zoning District (SAMP), later amended in November of 2013. The SAMP identifies various sites
comprising the stadium area, and designates particular zoning for each site. The Property is
designated in the SAMP as Commercial-Regional. The SAMP describes the Commercial-
Regional designation as intending to provide sites for retail areas containing a wide variety of
businesses, including: retail stores; eating and drinking establishments; commercial recreation;
financial, business and personal services; and hotels and motels, among other business types
listed.
In August of 2014, the City began a competitive process to acquire a broker to assist in
marketing and the sale of the Property. The City received and reviewed several firms’
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
qualifications, and selected in October of 2014 Keegan and Coppin to represent the City in
relation to the Property. They began marketing the Property promptly after selection.
The Planning Commission of the City of Rohnert Park conducted a review pursuant to
Government Code Section 65402 and determined that the City’s disposition of the Property is
consistent with, and will facilitate implementation of the City of Rohnert Park General Plan, as
adopted by Planning Commission Resolution No. 2014-37.
The City received a Letter of Intent from the Buyers (356 Advisors and MJW Investments) on
April 9, 2015. Staff and the parties reached agreement on the Project Development Term Sheet
(“PDTS”), effective April 29, 2015. The City and Buyers have been negotiating the Purchase and
Sale Agreement (“PSA”) terms and price for the sale of the Property, as well as terms for a
future Development Agreement. After extensive negotiations, staff is bringing this item for
Council to consider the agreement for the sale of the Property.
The Buyers are comprised of two private, southern California business organizations coming
together to develop the Property. 356 Advisors are experienced hotel developers, and will be
undertaking the development of a hotel on the site. MJW Investments is the equity partner in the
project.
ANALYSIS:
The sales price is $7,150,000. These funds are one-time revenues, and it is the City’s practice to
use one-time revenues for one-time expenditures. Although the gross revenue is $7.1 million,
there are several reimbursements, loan payments, and other associated costs with this transaction.
These costs include, but may not be limited to:
• Costco reimbursement for improvements benefiting the Property - $289,351
• RDA loan repayment for purchase of mitigation credits for the Property- $288,500
• Broker commission for both Seller’s and Buyer’s broker services- $357,500
The net amount of revenue is estimated at approximately $6.2 million
The Purchase and Sale Agreement calls for three good faith deposits. These include:
• $50,000 – paid upon execution of the PSA
• $100,000 –paid at end of the due diligence period (totaling 90 days)
• $150,000 – paid 18 months after the effective date of the PSA, if the sale has not closed
There is a total of $300,000 in deposits throughout the term of the PSA. The deposits will be
placed into a deposit account with the City until escrow closes and the sale is completed.
The PSA includes a minimum development requirement, a 125 room hotel of Upscale quality or
higher from the 2015 STR Chain Scale (attached). Buyers are evaluating additional uses for the
Property, including retail, commercial, and office. Additionally, the Buyers will be constructing
or paying for various off-site improvements. The purchase is to close within 2 years, unless two
6-month extensions are exercised by paying $100,000 for each extension that is non-refundable.
Construction on the hotel must begin within 3 years of the effective date of the PSA, and the
construction must end within 18 months of the start of construction. The City has retained a buy-
back option if the hotel is not constructed within the timeframes.
3
This agreement represents significant progress in the City’s economic development program. It
converts vacant land into economic activity which will generate one-time revenue, as well as
ongoing jobs and tax revenues. Estimated future tax revenues are $500,000 annually; this is an
uncertain estimate as it depends on the final project, the economy, and other factor. It also
strengthens Rohnert Park as a destination in Sonoma County.
The City is aware of concerns about building in the midst of a drought. It is worth noting that 15-
20% of the City’s water supply is from recycled water. Lake Sonoma provides 2/3 of the City’s
remaining water supply and currently holds approximately 3 years of water. The remaining 1/3
of the City’s water supply come from groundwater, with levels near historic highs.
OPTIONS CONSIDERED FOR SALE OF PROPERTY:
1. Council adopt the authorizing resolution to sell the Property to the Buyers, and authorize
the Mayor to execute the Agreement and the Mayor and City Manager take all other
actions necessary to consummate the transaction contemplated by the resolution.
Recommended.
2. There is an option to reject the offer and agreement. However, this is the highest offer
received, and the terms and planned development achieve many of the economic
development goals of the City. Higher offers may not be realized if the property goes
back onto the market for more offers, and other offers may not include projects that attain
the City’s long term economic development goals. Not recommended.
3. There is also the option to amend the agreement terms. The terms have been developed
through extensive negotiations between the City and Buyers. The terms provide for
several protections for the City, which aid to ensure that the City receives the anticipated
project at the end of the development. Not recommended.
DISPOSITION OF FUNDS
Should the Council decide to approve the sale of the Property to the Buyers, staff is also seeking
direction from the Council as to how to designate and use the one-time proceeds from the sale of
the Property. Proceeds could be used to fund capital projects or to address deferred maintenance
on City facilities. In addition, the proceeds could be used to pay down long-term, unfunded
liabilities.
OPTIONS FOR DESIGNATION AND USE OF FUNDS
The Council has several options regarding the use of funds from sale, including:
1. Wait until the sale closes and determine the best use at that time.
2. Use the proceeds to fund the City’s Capital projects including infrastructure and to
address deferred maintenance on City facilities.
3. Use the proceeds to pay down long-term, unfunded liabilities. This would include
addressing portions of the retiree medical, employee retirement pension, and/or other
unfunded liabilities of the City, estimated at $76 million.
4. Use the proceeds for another Council-designated purpose.
4
ENVIRONMENTAL ANALYSIS:
Section 15061(b)(3) of the CEQA Guidelines exempts from CEQA review activities that do not
have the potential to cause significant effects on the environment. The transfer of ownership of
the property from the City to the Buyers is exempt from CEQA under Section 15061(b)(3)
because there is no possibility that the conveyance will have an effect on the environment.
FISCAL IMPACT/FUNDING SOURCE:
The fiscal impact will consist of gross revenue in the amount of $7,150,000. Deducting
commissions, report costs, reimbursement agreements, and other costs, the net revenue is
estimated to be approximately $6,215,000. The hotel and associated developments will generate
ongoing property, transient occupancy, and sales tax revenues. While the particular amounts are
uncertain and will vary with the economy, staff estimates that they will be $500,000 or more
annually.
Department Head Approval Date: N/A
City Manager Approval Date: 8/5/2015
City Attorney Approval Date: 8/4/2015
Attachments (list in packet assembly order):
1. Approving Resolution
2. Exhibit A: Agreement for Purchase and Sale (Including Joint Escrow Instructions)
and Terms of Development
3. 2015 STR Chain Scale
RESOLUTION NO. 2015-134
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
AUTHORIZING AND APPROVING AN AGREEMENT FOR PURCHASE AND SALE
(INCLUDING JOINT ESCROW INSTRUCTIONS) AND TERMS FOR
DEVELOPMENT OF 5870 LABATH AVENUE WITH 356 ADVISORS AND MJW
INVESTMENTS
WHEREAS, the City of Rohnert Park (“City”) is owner of property at 5870 Labath
Avenue, consisting of approximately 12.25 acres of the aforementioned land (the “Property”);
and
WHEREAS, the Property is zoned Commercial-Regional in the Stadium Area Master
Plan Planned Development Zoning District; and
WHEREAS, the City is seeking to sell the property in order to encourage economic
development in the community by converting vacant land into uses that are both employment and
revenue generators; and
WHEREAS, on September 11, 2014, the Planning Commission of the City of Rohnert
Park conducted a review pursuant to Government Code Section 65402 and determined that the
City’s disposition of the Property is consistent with, and will facilitate implementation of the City
of Rohnert Park General Plan; and
WHEREAS, the City received an offer from 356 Advisors and MJW Investments
(collectively the “Buyers”) to purchase and develop the Property; and
WHEREAS, the City and Buyers negotiated the terms of an Agreement for Purchase and
Sale (Including Joint Escrow Instructions) and Terms of Development for the Property which
includes a hotel and retail/commercial/office projects ; and
NOW, THEREFORE, the City Council of the City of Rohnert Park does hereby resolve,
determine, find and order as follows:
Section 1. Recitals. The above referenced recitals are true and correct and are
incorporated into and form a material part of this Resolution.
Section 2. Environmental Review. The transfer of ownership of the property from the
City to Buyer is exempt from CEQA review under CEQA Guidelines section 15061(b)(3)
because there is no possibility for the conveyance to have an effect on the environment.
Section 3. Approval of Agreement for Purchase and Sale (Including Joint Escrow
Instructions) and Terms of Development (“Agreement”); Authority of Mayor. The City Council
hereby consents to the sale of the Property to Buyers for a price of Seven Million One Hundred
Fifty Thousand Dollars ($7,150,000.00) and approves the Agreement for Purchase and Sale
(Including Joint Escrow Instructions) and Terms of Development in substantially similar form as
provided for in “Exhibit A”, attached hereto and incorporated by this reference and hereby
2
authorizes the Mayor to execute the Agreement subject to minor modifications as approved by
the City Attorney.
Section 4. Section 65402 Consistency. Pursuant to Government Code Section 65402, the
City Council hereby affirms and accepts the City Planning Commission’s recommended finding
that the actions described in this Resolution are consistent with the City’s General Plan.
Section 5. Approval of Deed. The Mayor is hereby authorized and directed to execute a
Grant Deed for and on behalf of the City of Rohnert Park, subject to the terms stated in the
Agreement for Purchase and Sale (Including Joint Escrow Instructions) and Terms of
Development, and to the review and acceptance by the City Attorney.
Section 6. Other Actions Authorized. Subject to review and acceptance by the City
Attorney, the Mayor and City Manager, as appropriate, are hereby authorized and directed to take
all actions necessary or reasonably required to carry out, give effect to, and consummate the
transactions contemplated by this Resolution and to take all action necessary in conformity
therewith.
Section 7. Severability. If any action, subsection, sentence, clause or phrase of this
Resolution shall be held invalid or unconstitutional by a court of competent jurisdiction, such
invalidity shall not affect the validity of the remaining portions of this Resolution that can be
given effect without the invalid provisions.
DULY AND REGULARLY ADOPTED this 11th day of August, 2015.
CITY OF ROHNERT PARK
_______________________________
Amy O. Ahanotu, Mayor
ATTEST:
_____________________________
JoAnne Buergler, City Clerk
Attachments: Exhibit A, Agreement for Purchase and Sale (Including Joint Escrow Instructions)
and Terms of Development between the City of Rohnert Park and 356 Advisors and MJW
Investments.
EXHIBIT A
EXHIBIT A
CALLINAN _________ MACKENZIE: _________ STAFFORD: _________ BELFORTE _________ AHANOTU: _________
AYES: ( ) NOES: ( ) ABSENT: ( ) ABSTAIN: ( )
3
AGREEMENT FOR PURCHASE AND SALE (INCLUDING JOINT ESCROW
INSTRUCTIONS) AND TERMS OF DEVELOPMENT
OAK #4825-3884-0612 v9 1
AGREEMENT FOR PURCHASE AND SALE
(INCLUDING JOINT ESCROW INSTRUCTIONS) AND
TERMS OF DEVELOPMENT
This Agreement for Purchase and Sale (Including Joint Escrow Instructions) and Terms
of Development (“Agreement”), dated as of _______________, 2015, (“Effective Date”), is
between the CITY OF ROHNERT PARK, a California municipal corporation (“Seller” or
“City”), and 356 ADVISORS, INC., a California corporation, and MJW INVESTMENTS, LLC,
a California limited liability corporation (each a “Buyer Party” and collectively, “Buyer”).
R E C I T A L S
A. Seller desires to sell that certain real property consisting of 12.25 acres and
located at Labath Avenue and Carlson Avenue in the City of Rohnert Park, as more particularly
described and depicted on Exhibit A, attached hereto and incorporated herein by this reference
(the “Property”), in order for the Property to be developed with a hotel and retail uses.
B. Buyer has submitted a proposal to Seller to acquire the Property from Seller at fair
market value and obtain land use entitlements to develop and construct up to a 300-room select
service and suite hotel with a retail component on the Property (the “Project”).
C. On September 11, 2014, the Planning Commission of the City of Rohnert Park
conducted a review pursuant to Government Code Section 65402 and determined that Seller’s
disposition of the Property to Buyer pursuant to the terms hereof is consistent with, and will
facilitate implementation of the City of Rohnert Park General Plan, as adopted by Planning
Commission Resolution No. 2014-37.
D. On _______________, 2015, the City Council of the City of Rohnert Park (“City
Council”) considered and by Resolution No. _________ approved Seller entering into this
Agreement.
A G R E E M E N T
ARTICLE I
PURCHASE AND SALE OF PROPERTY
Section 1.1 Incorporation of Recitals. The recitals set forth above are incorporated
herein by this reference.
Section 1.2 Sale. Seller agrees to sell to Buyer, and Buyer agrees to purchase from
Seller, on the terms and conditions set forth herein, the Property together with any and all rights,
privileges and easements appurtenant thereto owned by Seller.
Section 1.3 Purchase Price. The purchase price for the Property is Seven Million
One Hundred and Fifty Thousand Dollars ($7,150,000.00) (“Purchase Price”). The Purchase
Price shall be paid to Seller at Closing, as defined in Section 6.2(a), in immediately available
funds. The Purchase Price was determined based on a survey of comparable parcels and an
OAK #4825-3884-0612 v92
evaluation of potential uses of the Property. In the event that the acreage of the Property is
modified, the Purchase Price shall be proportionately adjusted.
Section 1.4 Project, Processing of Approvals and Requirements to Develop.
(a) Buyer intends to develop the Project on the Property and will submit
applications for land use entitlements to Seller, as City of Rohnert Park, as soon as practicable
after the Effective Date, which entitlements shall include a Conditional Use Permit, Site Plan and
Architectural Review and a Development Agreement.
(b) Buyer acknowledges that such applications shall include the requirement
to enter into a Reimbursement Agreement with City, in a form approved by City, to reimburse
City for its customary costs in processing the land use entitlements for the Project. These costs
include, but are not limited to, fee types listed in the Development, Fire Services, Planning,
Engineering, and Building fee schedules adopted by City. Further, Buyer agrees and
acknowledges that the City shall conduct a traffic and parking analysis, including demands for
the proposed Project, as part of the CEQA process for the Project, which shall be funded by
Buyer.
(c) Buyer agrees and acknowledges that it will be required to enter into a
Development Agreement, in a form approved by City and including the terms set forth in Exhibit
B, attached hereto and incorporated herein by reference, which will grant Buyer vested rights and
set forth the obligations of Buyer to develop the Project. The terms of the Development
Agreement, including phasing requirements as set forth in Exhibit B, shall be incorporated by
reference in this Agreement, with such additional terms as may be negotiated by the parties.
(d) The City makes no representations as to the processing of the applications
and retains discretion to approve, disapprove or condition such applications, which may include
modifications to the proposed Project as approved by the City in its discretion.
Section 1.5 Good Faith Deposits.
(a) Within three business days of Escrow being opened as outlined in Section
6.1 of this agreement (Title Company to notify all parties of the exact date), Buyer shall deliver
into escrow a good faith deposit in the amount of Fifty Thousand Dollars ($50,000.00) (“First
Good Faith Deposit”). The First Good Faith Deposit shall serve as security for the performance
of Buyer’s obligations under this Agreement, shall be applied towards the Purchase Price at
Closing and is fully refundable to Buyer prior to the expiration of the Due Diligence Period (see
Section 3.4). After the Due Diligence Period, the First Good Faith Deposit shall be
nonrefundable and shall constitute liquidated damages to Seller in the event the purchase and
sale is not completed as provided herein.
(b) Within three business days after expiration of the Due Diligence Period,
assuming Buyer approves the Property and elects to proceed, Buyer shall deliver into escrow a
second good faith deposit in the amount of One Hundred Thousand ($100,000.00) (“Second
Good Faith Deposit”). The Second Good Faith Deposit shall serve as security for the
performance of Buyer’s obligations under this Agreement, shall be applied towards the Purchase
Price at Closing and shall constitute liquidated damages and be nonrefundable to Buyer. The
OAK #4825-3884-0612 v93
First and Second Good Faith Deposits shall be transferred to Seller within three business day of
deposit of the Second Good Faith Deposit into escrow.
(c) Prior to the date that is 18 months after the Effective Date, Buyer shall
deliver into escrow a third good faith deposit in the amount of One Hundred Fifty Thousand
Dollars ($150,000.00) (“Third Good Faith Deposit”). For example, if the Effective Date is
August 3, 2015, the Third Good Faith Deposit shall be delivered on February 3, 2017. The Third
Good Faith Deposit shall serve as security for the performance of Buyer’s obligations under this
Agreement, shall be applied towards the Purchase Price at Closing and shall constitute liquidated
damages and be nonrefundable to Buyer. The Third Good Faith Deposits shall be transferred to
Seller within three business day of its deposit into escrow. The First, Second and Third Good
Faith Deposits may hereafter each be referred to as a “Good Faith Deposit” or collectively as
the “Good Faith Deposits.”
After the expiration of the Buyer’s Due Diligence Period and Buyer’s acceptance of the
condition of the Property, as set forth in Section 3.4, the Good Faith Deposits may only be
returned to Buyer if all Buyer’s Conditions Precedent to Conveyance, as set forth in Section 2.1
have not been satisfied or waived by Buyer, or Seller is in default under this Agreement
following notice and expiration of applicable cure periods.
Buyer acknowledges that the construction of the Project on the Property is a material
consideration to Seller. Buyer agrees and acknowledges that the Good Faith Deposits shall be
retained by Seller in the event that the Buyer does not obtain land use entitlements from City or
is not prepared to construct the Hotel. However, if Buyer applies for and City does not approve a
Project that includes a minimum 125-room Upscale or higher hotel, as provided in the STR Hotel
Chain Scale (the “Hotel”), with City retaining reasonable discretion to refine and address details
with respect to the Hotel as part of the public hearing process, both parties agree to work in good
faith to resolve any differences. If a mutually acceptable agreement cannot be reached, Buyer
may terminate this Agreement and within 15 business days of such termination, City shall pay to
Buyer an amount equal to one half (1/2) of the Good Faith Deposits received up to the date of
such termination.
IN THE EVENT BUYER DEFAULTS IN BUYER’S OBLIGATION TO
SATISFY ALL CONDITIONS PRECEDENT AND PURCHASE THE
PROPERTY WITHIN THE TIME AND IN THE MANNER SPECIFIED IN
THIS AGREEMENT, AND SELLER IS READY, WILLING AND ABLE TO
CLOSE THIS TRANSACTION, SELLER SHALL BE RELEASED FROM ALL
OBLIGATIONS AT LAW OR IN EQUITY TO CONVEY THE PROPERTY TO
BUYER. BUYER AND SELLER AGREE THAT IT WOULD BE
IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE
AMOUNT OF DAMAGES SUFFERED BY SELLER BECAUSE OF SUCH
DEFAULT; THAT THE GOOD FAITH DEPOSITS DEPOSITED INTO
ESCROW BY BUYER CONSTITUTE A REASONABLE ESTIMATE AND
AGREED STIPULATION OF SUCH DAMAGES; THAT SELLER SHALL
RETAIN SUCH SUM AS LIQUIDATED DAMAGES AS ITS SOLE AND
EXCLUSIVE REMEDY IN THE EVENT OF BUYER’S DEFAULT, WAIVING
OAK #4825-3884-0612 v94
ANY RIGHT TO SPECIFIC PERFORMANCE OR ANY OTHER REMEDY AT
LAW OR IN EQUITY.
____________________ ______________________
Seller’s Initials MJW Investments, LLC Initials
356 Advisors, Inc. Initials
If this Agreement is not cancelled or terminated, as provided herein, or the Good Faith
Deposits are not retained by Seller as liquidated damages, the Good Faith Deposits shall be
credited against the Purchase Price at Closing.
ARTICLE II
CONDITIONS
Section 2.1 Buyer’s Conditions Precedent to Conveyance.
Buyer’s obligation to purchase the Property is conditioned upon the following:
(a) All of the representations and warranties made by Seller to Buyer pursuant
to this Agreement shall be true and correct in all material respects as of the Closing date, as if
made on such date.
(b) Pursuant to Section 3.4, Buyer shall have completed its due diligence
within the Due Diligence Period and provided written notice to Seller that all aspects of the
Property are acceptable to Buyer. Title Company (as defined in Section 6.1) shall provide notice
to the parties of the time-frame; however, failure of Title Company to provide such notification
shall not effect Buyer’s obligations hereunder. The parties in good faith shall undertake such
actions to direct the Title Company to issue the aforementioned notification in a timely manner.
(c) Seller shall have delivered each of the documents described in Section
6.3(a), prior to the Closing date.
(d) Title Company (as defined in Section 6.1) shall have issued an irrevocable
and unconditional commitment to issue the Title Policy (as defined in Section 4.3) upon
recordation of the Grant Deed (as defined in Section 4.1).
(e) Seller shall not be in material default of any of its obligations under this
Agreement following notice and expiration of any applicable cure period.
The conditions precedent to conveyance set forth in this Section 2.1 (“Buyer’s
Conditions Precedent to Conveyance”) are solely for the benefit of Buyer and may be waived
only by Buyer. No such waiver shall be binding upon Buyer unless made in writing by an
authorized representative of Buyer.
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Section 2.2 Seller’s Conditions Precedent to Conveyance.
Seller’s obligation to sell the Property is conditioned upon the following:
(a) All of the representations and warranties made by Buyer to Seller pursuant
to this Agreement shall be true and correct in all material respects as of the Closing date, as if
made on such date.
(b) Buyer shall have delivered the Good Faith Deposits into Escrow, as
required by Section 1.5.
(c) Buyer shall have delivered each of the items described in Section 6.3(b)
prior to the Closing date, and shall have performed all of its obligations under this Agreement in
accordance with the provisions hereof.
(d) Buyer shall have obtained all discretionary land use entitlements necessary
to develop the Project.
(e) Buyer and Seller shall have entered into a Development Agreement in a
form approved by the City Council, which incorporates the terms set forth in Exhibit B, attached
hereto, with such additional terms as may be negotiated by the parties.
(f) Buyer shall be prepared to obtain building permits and to construct the
Hotel immediately upon close of escrow, as demonstrated by an agreement between Buyer and a
hotel operator or franchise and a construction contract between Buyer and a contractor ready to
begin construction of the Hotel.
(g) Buyer shall not be in material default of any of its obligations under this
Agreement following notice and expiration of any applicable cure period.
The conditions precedent to conveyance set forth in this Section 2.2 (“Seller’s
Conditions Precedent to Conveyance”) are solely for the benefit of Seller and may be waived
only by Seller. No such waiver shall be binding upon Seller unless made in writing by an
authorized representative of Seller.
ARTICLE III
REPRESENTATIONS AND WARRANTIES, BUYER’S DUE DILIGENCE, AND
DISCLAIMERS AND RELEASES
Section 3.1 Representations and Warranties of Seller.
Seller hereby makes the following representations and warranties.
(a) Seller, as of the Effective Date, owns fee simple title to the Property.
(b) There is no litigation, action, suit, arbitration, claims proceeding or
governmental investigation in law or equity pending or, to Seller’s actual knowledge, threatened,
OAK #4825-3884-0612 v96
with respect to the Property or against Seller which would prevent Seller from performing its
obligations hereunder, or which would have a material adverse effect on the Property or Buyer.
(c) To the best of Seller’s knowledge, Seller’s execution, delivery and
performance of its obligations under this Agreement will not constitute a default or a breach
under any contract, agreement or order to which Seller is a party or by which it is bound.
(d) To the best of Seller’s knowledge, the governmental reports, notices, soils
tests, environmental reports, plans, surveys, engineering reports, and other documents,
information and data relative to the Property delivered or made available by Seller to Buyer
pursuant to Section 3.4 below, represent all Seller Materials, as defined in Section 3.4 below, that
are in Seller’s possession or under Seller’s control.
(e) Seller shall maintain the Property until Closing in a manner generally
consistent with the manner in which Seller has maintained the Property prior to the date of this
Agreement.
(f) Prior to Closing, Seller will not violate or modify, orally or in writing, any
lease, contract, understanding or any other agreements, or create any new leases or other
agreements affecting the Property, without Buyer’s written approval.
(g) To the best of Seller’s knowledge, no person, except as disclosed by this
Agreement or otherwise in writing to Buyer, has any right to possession of the Property. There
exist no oral or written leases or rental agreements affecting all or any portion of the Property.
(h) To the best of Seller’s knowledge, there are no sums due, owing or unpaid
for labor and materials furnished to the Property which might give rise to a mechanic’s or
materialman’s lien.
(i) Seller will convey fee simple title to Buyer subject only to the Permitted
Exceptions, as defined in Section 4.2 below. Seller agrees not to create any new title exceptions
following the Effective Date unless Buyer’s written approval of such new exception(s) is first
obtained.
(j) All references herein to “Seller’s knowledge” means the current, actual
knowledge of Darrin Jenkins or his designee (“Seller’s Representative”), without any obligation
of inquiry, and such term shall not include the knowledge of any other person or firm, it being
understood by Buyer that (a) Seller’s Representative was not involved in the operation of the
Property before Seller’s acquisition of the Property, (b) Seller’s Representative is not charged
with knowledge of any of the acts or omissions of predecessors in title to the Property or the
management of the Property before Seller’s acquisition of the Property, and (c) Seller’s current
actual knowledge shall not apply to, or be construed to include, information or material which
may be in the possession of Seller generally or incidentally, but of which Seller’s Representative
is not actually aware.
(k) Each of the representations and warranties of Seller contained in this
Section 3.1 is true as of the Effective Date, and shall be deemed remade by Seller and shall be
true as of the Closing date.
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Section 3.2 Representations and Warranties of Buyer.
Buyer represents and warrants to Seller as follows:
(a) 356 Advisors, Inc. is corporation organized under the laws of the State of
California, and MJW Investments, LLC, is a limited liability corporation organized under the
laws of the State of California. Each Buyer Party has full right, power and lawful authority to
undertake all obligations of Buyer as provided herein and the execution, performance and
delivery of this Agreement by each Buyer Party has been fully authorized by all requisite
company actions on the part of the Buyer Party, which have been provided to City for review.
(b) To the best of each Buyer Party’s knowledge, Buyer’s execution, delivery
and performance of its obligations under this Agreement will not constitute a default or a breach
under any contract, agreement or order to which any Buyer Party is a party or by which it is
bound.
(c) No Buyer Party is the subject of any bankruptcy proceeding.
(d) There are no actions, suits, material claims, legal proceedings, or any other
proceedings affecting any Buyer Party that would affect its authority to enter into and undertake
all obligations under this Agreement.
Each of the representations and warranties of Buyer contained in this Section 3.2 is true
as of the Effective Date, and shall be deemed remade by Buyer and shall be true as of the date of
Closing.
Section 3.3 Survival Period.
The representations and warranties of Seller and Buyer contained herein shall survive for
a period of two (2) years after the Closing (the “Survival Period”). Any claim which Buyer or
Seller may have at any time against the other for a breach of any such representation or warranty,
whether known or unknown, which is not asserted by written notice to the other within the
Survival Period shall be deemed waived, unless otherwise agreed in writing by the parties.
Section 3.4 Buyer’s Due Diligence.
Within 90 calendar days following the Effective Date (“Due Diligence Period”), Buyer
shall have reviewed, inspected and investigated, at its expense, the Property, either independently
or through agents of Buyer’s choosing, including, but not limited to, the following:
(a) The size and dimensions of the Property.
(b) The availability and adequacy of water, sewage, fire protection, and any
utilities serving the Property.
(c) All matters relating to title, including extent and conditions of title to the
Property, taxes, assessments, and liens.
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(d) All legal and governmental laws, statutes, rules, regulations, ordinances,
and restrictions or requirements concerning the use and development of the Property including
zoning, use permit requirements and building codes.
(e) Natural hazards, including flood plain issues, currently or potentially
concerning or affecting the Property.
(f) The physical, legal, economic and environmental condition and aspects of
the Property, and all other matters concerning the conditions, use, sale or development of the
Property, including any permits, licenses, engineers’ reports and studies and similar information
relating to the Property. Such examination of the condition of the Property may include
examinations for the presence or absence of Hazardous Materials, as defined below, as Buyer
deems necessary or desirable. The term “Hazardous Materials” means any and all substances,
contaminants, chemicals, wastes, sewage, materials or emissions which are now or hereafter
regulated, controlled, prohibited or otherwise affected by any present or future local, state or
federal statute, ordinance, code, rule, regulation, order, decree, permit or other law now or
hereafter in effect, including but not limited to (i) asbestos (including asbestos-containing
materials); (ii) flammable, explosive, infectious, carcinogenic, mutagenic, or radioactive
materials; (iii) petroleum or any substance containing or consisting of petroleum hydrocarbons
(including gasoline, diesel fuel, motor oil, waste oil, grease or any other fraction of crude oil);
(iv) paints and solvents; (v) lead; (vi) cyanide; (vii) DDT; (viii) printing inks; (ix) acids;
(x) pesticides; (xi) ammonium compounds; (xii) polychlorinated biphenyls; (xiii) radon and
radon gas; and (xiv) electromagnetic or magnetic materials, substances or emissions.
(g) Any easements and/or access rights affecting the Property.
(h) Any contracts and other documents or agreements affecting the Property.
(i) All other matters of material significance affecting the Property.
Within ten (10) business days of the Effective Date, Seller shall deliver or make available
to Buyer copies of all governmental reports, notices, soils tests, environmental reports, plans,
surveys, engineering reports, and any other material documents, information and data relative to
the Property that are in Seller’s possession or under Seller’s control (“Seller Materials”).
Prior to expiration of the Due Diligence Period Buyer shall provide written notice to
Seller that (i) it has approved the physical, legal, economic and environmental condition and
aspects of the Property, and all other matters concerning the legal status, condition, use, sale or
development of the Property as set forth above in its sole and absolute discretion and intends to
move forward with the purchase and development of the Property; or (ii) it desires to terminate
the Agreement. If Buyer fails to notify Seller on or before the last day of the Due Diligence
Period that Buyer has approved the Property as provided above, Buyer shall be deemed to have
elected to terminate this Agreement. If Buyer terminates this Agreement as provided herein, the
First Good Faith Deposit shall be returned to Buyer.
Section 3.5 As-Is Conveyance. BUYER SPECIFICALLY ACKNOWLEDGES AND
AGREES THAT SELLER IS SELLING AND BUYER IS PURCHASING THE PROPERTY
ON AN “AS IS WITH ALL FAULTS” BASIS, CONDITION AND STATE OF REPAIR
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INCLUSIVE OF ALL FAULTS AND DEFECTS, WHETHER KNOWN OR UNKNOWN, AS
MAY EXIST AS OF THE CLOSING, INCLUDING THE ENVIRONMENTAL CONDITIONS
DESCRIBED ABOVE (“AS IS CONDITION”) AND THAT, EXCEPT AS EXPRESSLY SET
FORTH IN SECTION 3.1, ABOVE, BUYER IS NOT RELYING ON ANY
REPRESENTATIONS OR WARRANTIES FROM SELLER OR ANY OF SELLER’S
ELECTED OFFICIALS, OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES,
ATTORNEYS OR BROKERS (COLLECTIVELY, “SELLER PARTIES”) AS TO ANY
MATTERS CONCERNING THE PROPERTY.
Section 3.6 Disclaimers.
Buyer acknowledges and agrees that except as expressly set forth in this Agreement: (i)
neither Seller, nor any Seller Party, has made any representations, warranties, or promises to
Buyer, or to anyone acting for or on behalf of Buyer, concerning the condition of the Property or
any other aspect of the Property; (ii) the condition of the Property has been independently
evaluated by Buyer prior to the Closing; and (iii) any information, including Seller Materials,
which Buyer has received or may hereafter receive from Seller or any Seller Party were and are
furnished without warranty of any kind and on the express condition that Buyer has made its own
independent verification of the accuracy, reliability and completeness of such information and
that Buyer will not rely on any of the foregoing.
Section 3.7. Waivers and Releases. Buyer hereby releases Seller from any and all
manner of rights, liabilities, claims, actions, causes of action, suits, proceedings, demands,
damages, costs, expenses (including attorney’s fees and costs) or other compensation
whatsoever, in law or equity, of whatever kind or nature, whether known or unknown, direct or
indirect, foreseeable or unforeseeable, absolute or contingent that Buyer now has or may have or
which may arise in the future arising out of, directly or indirectly, or in any way connected with
(i) all warranties of whatever type or kind with respect to the physical or environmental
condition of the Property, whether express, implied or otherwise, including those of fitness for a
particular purpose or use; (ii) use, management, ownership or operation of the Property; (iii) the
physical, environmental or other condition of the Property; (iii) the application of, compliance
with or failure to comply with any Applicable Laws as to the Property; (iv) Hazardous Materials
as to the Property; and (v) the As Is Condition (the foregoing are collectively referred to as
“Claims”). By releasing and forever discharging the Claims, Buyer expressly waives any rights
under California Civil Code Section 1542, which provides:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR (BUYER) DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS
OR HER SETTLEMENT WITH THE DEBTOR.”
INITIALS: CITY ______ BUYER _______
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Notwithstanding the foregoing, the release and waiver of Claims set forth in this Section
3.7 shall not apply to any Claims arising from the sole active negligence or willful misconduct of
Seller or from breaches by Seller of this Agreement (including but not limited to breaches of
representations and warranties of Seller expressly set forth herein). The provisions of this
Section 3.7 are a material portion of the consideration given by each party to the other in
exchange for such party’s performance under this Agreement and shall survive the Closing.
ARTICLE IV
CONVEYANCE AND TITLE
Section 4.1 Conveyance.
At the Closing, Seller shall convey title to the Property to Buyer by grant deed in a form
substantially similar to that attached hereto as Exhibit C (“Grant Deed”), free of any possession
or right of possession by any person except that of Buyer and subject only to those exceptions
approved by Buyer pursuant to Section 4.2 below. The Grant Deed shall provide that the Seller
has the right to repurchase the Property in the event that Buyer does not construct the Project on
the Property within a certain period of time, as described in more detail in Article VII below.
Section 4.2 Review and Approval of Condition of Title. Within five business days
after the Effective Date, Buyer shall cause Title Company to deliver to Buyer and to Seller a
standard preliminary title report for the Property, together with legible copies of the documents
underlying the exceptions set forth in the preliminary title report. Buyer shall have the right to
reasonably approve or disapprove all exceptions. Buyer hereby approves the following
exceptions which shall be referred to herein as the “Pre-Approved Exceptions”: (a) the lien of
any non-delinquent property taxes and assessments (which, if any exist, shall be prorated by the
Title Company at Closing); and (b) easements and right-of-way exceptions, including those that
may be created by City’s creation of a legal lot commiserate with the Property.
Within thirty (30) days after the Effective Date, Buyer shall give written notice to Seller
of Buyer’s approval or disapproval of any of the title exceptions, except the Pre-Approved
Exceptions. Buyer’s failure to give written disapproval of the exceptions within such time
period shall be deemed Buyer’s disapproval of the exceptions. If Buyer delivers notice of
disapproval of any exceptions, Seller shall have the right, but not the obligation, to cause any
disapproved exceptions to be removed within thirty (30) days after receiving such notice of
disapproval (or until five (5) business days prior to Closing, if earlier than the expiration of such
thirty (30) day period) or provide assurances satisfactory to Buyer, in its sole discretion, that
such exceptions will be removed on or before the Closing. Failure to notify Buyer within such
thirty (30) day (or shorter) period shall be deemed Seller’s election not to remove the
disapproved exceptions. Seller’s election or deemed election not to remove any disapproved
exceptions shall not be a default under this Agreement. If Seller cannot or does not elect to
remove any of the disapproved exceptions within such thirty (30) day (or shorter) period, Buyer
shall have five (5) business days after the expiration of such thirty (30) day (or shorter) period to
either give Seller notice that Buyer elects, in its sole discretion, to proceed with the Closing,
subject to the disapproved exceptions, or to give Seller notice that Buye r elects to terminate this
Agreement, in which case neither party will have any further rights or obligations under this
Agreement other than those obligations which survive termination hereof. The Pre-Approved
Exceptions and other exceptions to title approved by Buyer as provided herein are hereinafter
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referred to as the “Permitted Exceptions.” Subject to the Seller’s representation and warranty in
Section 3.1(m) not to create any new title exceptions following the Effective Date without
Buyer’s written approval, if any exceptions other than the Permitted Exceptions are reported by
the Title Company after Buyer has approved the condition of title for the Property pursuant to the
foregoing procedures, then any such new exception shall be subject to the same procedures for
review and approval set forth above for the Permitted Exceptions.
Section 4.3 Title Insurance. Concurrently with recordation of the Grant Deed, the
Title Company shall issue to Buyer such policy of title insurance for the Property which at
Buyer’s option may be an ALTA extended coverage owner’s policy (“Title Policy”) as may be
required by Buyer, and/or Buyer’s lenders or other institutions that may be providing financing
for the Project, together with such endorsements as are reasonably requested by Buyer and/or
Buyer’s lenders or other institutions, insuring that Buyer has a valid fee ownership interest in the
Property, subject only to the Permitted Exceptions and other encumbrances expressly
contemplated by this Agreement to be recorded at Closing. The premium for the Title Policy,
plus any additional costs, including the cost of surveys, and any endorsements requested by
Buyer shall be paid by Buyer.
ARTICLE V
BROKERS AND EXPENSES
Section 5.1 Brokers.
Under a separate agreement, Seller shall pay Keegan and Coppin Company, Inc.
(“Seller’s Broker”) for its services as Seller’s broker in this transaction. Seller’s Broker shall be
responsible for additional broker’s payments due to HotelBrokerOne under a separate agreement
between Seller’s Broker and HotelBrokerOne, which agreement has been provided to all parties
prior to the Effective Date. If any person other than Seller’s Broker or HotelBrokerOne brings a
claim for a commission or finder’s fee based upon any contact, dealings or communication with
Buyer or Seller, then the party through whom such person makes his or her claim shall defend
the other party (“Indemnified Party”) from such claim, and shall indemnify the Indemnified
Party and hold the Indemnified Party harmless from any and all costs, damages, claims,
liabilities or expenses (including without limitation, reasonable attorneys’ fees and
disbursements) incurred by the Indemnified Party in defending against the claim. The provisions
of this Section 5.1 shall survive the Closing or other termination of this Agreement.
ARTICLE VI
CLOSING AND ESCROW
Section 6.1 Escrow Instructions.
Within ten (10) days following the Effective Date of this Agreement, the parties shall
open escrow and deposit an executed counterpart of this Agreement with First American Title
Company (“Title Company”), and this instrument shall serve as the instructions to the Title
Company as the escrow holder for consummation of the purchase and sale contemplated hereby.
Seller and Buyer agree to execute such reasonable additional and supplementary escrow
instructions as may be appropriate to enable the Title Company to comply with the terms of this
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Agreement; provided, however, that in the event of any conflict between the provisions of this
Agreement and any supplementary escrow instructions, the terms of this Agreement shall
control.
Section 6.2 Closing.
(a) “Closing” means the consummation of the purchase and sale of the
Property as described herein as evidenced by the performance by each party of its obligations
hereunder, including the Title Company’s recordation and delivery of the Grant Deed, delivery
of the documents as set forth in this Agreement, Title Company’s irrevocable and unconditional
commitment to issue the Title Policy upon recordation of the Grant Deed, and the payment of the
Purchase Price by Buyer.
(b) The Closing hereunder shall be held and delivery of all items to be made
at the Closing under the terms of this Agreement shall be made at the offices of the Title
Company on the date which is within ten calendar days of completion of all conditions precedent
to conveyance as set forth in Article II, but in no event later than a date two years after the
Effective Date, as my be extended as provided herein (“Outside Closing Date”). Buyer may
extend the Outside Closing Date no more than two times for a period of six months each upon
deposit of $100,000.00 for each extension submitted to Title Company at least ten business days
prior to the Outside Closing Date, as may be extended (each, an “Extension Payment”). The
Extension Payment(s) shall constitute a payment for the extensions and be nonrefundable to
Buyer and shall not accrue toward the Purchase Price.
Section 6.3 Deposit of Documents.
(a) At or before the Closing, Seller shall deposit into escrow the following
items:
(1) Documentary transfer taxes and Seller’s customary share of the
normal prorations;
(2) Documentation of a credit towards the Purchase Price in the
amount of the Good Faith Deposit;
(3) the duly executed and acknowledged Grant Deed conveying the
Property to Buyer;
(4) an executed affidavit pursuant to Section 1445(b)(2) of the Internal
Revenue Code, and on which Buyer is entitled to rely, that Seller is not a “foreign person” within
the meaning of Section 1445(f)(3) of the Internal Revenue Code; and
(5) an executed California 597-W Certificate.
(b) At or before Closing, Buyer shall deposit into escrow the following items:
(1) an executed Preliminary Change of Ownership Report; and
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(2) funds necessary to close this transaction, including the Purchase
Price, adjusted by a credit towards the Purchase Price in the amount of the Good Faith Deposit,
any normal prorations, the Title Policy premium, all escrow fees and recording charges, and all
other closing costs.
Seller and Buyer shall each deposit such other instruments as are reasonably required by
the Title Company or otherwise required to close the escrow and consummate the purchase and
sale transaction in accordance with the terms hereof. Seller and Buyer hereby designate Title
Company as the “Reporting Person” for the transaction pursuant to Section 6045(e) of the
Internal Revenue Code and the regulations promulgated thereunder and agree to execute such
documentation as is reasonably necessary to effectuate such designation.
(c) Buyer shall be solely responsible for paying the following costs associated
with the transfer of the Property: (i) the premium for the Title Policy, including any
endorsements; (ii) all escrow fees and recording charges, (iii) Buyer’s customary share of other
normal prorations; (iv) all other closing costs; and (v) all of Buyer’s due diligence expenses.
Seller shall be solely responsible for paying the following costs associated with the transfer of
the Property: (i) documentary transfer taxes and (ii) Seller’s customary share of normal
prorations.
(d) Ad valorem taxes and assessments levied, assessed or imposed on the
Property for any period prior to the Closing, if any, shall be paid by Seller. Ad valorem taxes
and assessments levied, assessed or imposed on the Property for the period after the Closing shall
be paid by Buyer.
(e) The provisions of this Section 6.3 shall survive the Closing.
ARTICLE VII
DEFAULT AND REMEDIES
Section 7.1 General.
The failure by any party to perform any obligation under this Agreement or the
Development Agreement, if the failure has continued for a period of thirty (30) days after the
other party demands in writing that the defaulting party cure the failure, except for such longer
period set forth in Section 7.3, shall be deemed a default hereunder. If, however, by its nature
the failure cannot be cured within thirty (30) days, the defaulting party may have a longer period
as is necessary to cure the failure, in any event not to exceed sixty (60) days, provided, however,
such extended cure period shall be conditioned upon the defaulting party promptly commencing
to cure within the thirty (30) day period and thereafter diligently completing the cure.
Section 7.2 Remedies Upon Default.
(a) Upon the occurrence of an event of uncured default by Buyer, Seller,
subject to the terms of this Agreement, shall be entitled to retain the Good Faith Deposits as
liquidated damages.
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(b) Upon the occurrence of an event of uncured default by Seller, Buyer may
either institute an action for specific performance or other equitable relief to compel sale of the
Property to Buyer on the terms set forth herein or Buyer may opt to terminate this Agreement by
written notice to Seller in which case the Good Faith Deposits previously deposited into escrow
by Buyer shall be immediately returned to Buyer upon unilateral demand to the Title Company
or by Seller, if such amounts have previously been released to Seller.
(c) Except as otherwise provided herein, neither party shall be entitled to any
monetary damages, and each party hereby waives any and all rights to recover consequential or
special damages arising directly or indirectly from a breach of this Agreement by the other party.
Section 7.3 City Option to Repurchase, Reenter and Repossess.
(a) City shall have the additional right, at its option, to repurchase, reenter and
take possession of the Property (or portion thereof) with all improvements thereon, if after
conveyance of title to the Property and prior to the issuance of a certificate of occupancy for the
Project, the Buyer:
(1) Fails to commence construction of the Hotel within three years of
the Effective Date, subject to force majeure as defined in Section 8.20, as required by this
Agreement and the Development Agreement, for a period of three months after written notice
thereof from the City; or
(2) Abandons or substantially suspends construction of the Hotel for a
period of three months after written notice of such abandonment or suspension from the City,
subject to force majeure as defined in Section 8.20.
(b) Such right to repurchase, reenter and repossess, to the extent provided in
this Agreement, shall be subordinate and subject to and be limited by and shall not defeat, render
invalid or limit any mortgage, deed of trust or other security instrument permitted by this
Agreement; or any rights or interests provided in this Agreement for the protection of the holder
of such mortgages, deeds of trust or other security instruments.
(c) In order to exercise the repurchase option set forth in Section 7.3(a), City
shall give Buyer notice of intent to exercise option and City and Buyer shall meet in good faith
within 30 days to discuss potential resolution or amendments to this Agreement and the
Development Agreement or Project approvals, if applicable. If the parties are unable to reach
resolution, City may provide Buyer with a notice to exercise option to repurchase and, within
240 days thereafter, may pay to Buyer the Fair Market Value, as determined by Section 7.3(d),
and Buyer shall thereupon execute and deliver to City grant deeds transferring to City all of
Buyer 's interest in the Property. In the event City exercises its repurchase option under this
Section 7.3, such exercise shall constitute City’s sole and exclusive remedy on account of any
default of Buyer which gives rise to City’s repurchase option hereunder, except that the
foregoing limitation on remedies shall not affect either party's indemnity obligations under this
Agreement. City may withdraw its notice to exercise option at any time prior to the transfer of
the Property to City.
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(d) Within 30 days of City’s notice to repurchase, as set forth in Section
7.3(c), City and Buyer shall each appoint one independent commercial real estate appraiser, or
designate an appraiser and appraisal completed in the past year, to appraise the value of the
Property with the general plan land use designation and zoning in place as of the Effective Date.
Buyer acknowledges that City may hire an appraiser and obtain an appraisal prior to exercising
its option to repurchase and that such appraisal may be used as City’s appraisal under this
Section 7.3(d). If either City or Buyer fails to appoint or designate its appraiser within the
prescribed time period, the single appraiser appointed shall determine the Fair Market Value of
the Property. If both parties fail to appoint or designate appraisers within the prescribed time
periods, then the first appraiser thereafter selected by a party shall determine the Fair Market
Value of the Property. Each party shall bear the cost of its own appraiser and the parties shall
share equally the cost of the single appraiser, if applicable. The appraisers shall be real estate
appraisers licensed in the State of California and have at least 10 consecutive years of experience
in the appraisal of real property in Sonoma County. If each party appoints or designates an
appraiser, such appraisers shall, within 90 days after the appointment of the last appraiser,
complete or provide, if already completed, their determinations of Fair Market Value and furnish
the same to City and Buyer. If the low valuation varies from the higher valuation by 5% of the
low valuation or less, the Fair Market Value shall be the average of the two valuations. If the
low valuation varies from the high valuation by more than 5%, the two appraisers shall, within
30 days after submission of the last appraisal, appoint a third appraiser who shall meet the
qualifications set forth in this Section 7.3. If the two appraisers are unable to agree on the
selection of a third appraiser in a timely manner, then either City or Buyer may request such
appointment by the presiding judge of the Superior Court of Sonoma County. The third
appraiser, however selected, shall be a person who has not previously acted in any capacity for or
against either party. Such third appraiser shall, within 90 days after appointment, make a
determination of Fair Market Value and said third appraiser shall select the opinion of Fair
Market Value as determined by the one appraisal determination, completed by the two
appraisers, which most closely matches the third appraiser’s opinion of Fair Market Value. The
Fair Market Value of the Property shall be the Fair Market Value selected by said third appraiser.
All fees and costs of the third appraiser in connection with the determination of Fair Market
Value shall be paid one-half by City and one-half by Buyer.
(e) City’s rights under this Section 7.3 shall survive the Closing and shall
terminate upon the issuance of a certificate of occupancy by Buyer for the Hotel.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Notices.
Any notices required or permitted to be given hereunder shall be given in writing and
shall be delivered (a) by certified mail, postage prepaid, return receipt requested, or (b) by a
commercial overnight courier that guarantees next day delivery and provides a receipt, and such
notices shall be addressed as follows:
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To Seller: City of Rohnert Park
130 Avram Avenue
Rohnert Park, California 94608-3517
Attention: City Manager
With a copy to: Burke Williams & Sorensen, LLP
1901 Harrison Street, 9th Floor
Oakland, California 94612
Attention: Michelle Marchetta Kenyon
To 356 Advisors,
Inc.:
356 Advisors, Inc.
3757 Falcon Ave.
Long Beach, CA 90807
Attention: Bruce Orr
To MJW
Investments, LLC:
MJW Investments, LLC
1278 Glenneyre Street, Suite 439
Laguna Beach, CA 92651
Attention: Matthew J. Waken
With a copy to: Palmieri, Tyler, Wiener, Wilhelm & Waldron, LLP
2603 Main Street, Suite 1300
Irvine, CA 92614
Attention: Stephen A. Scheck, Esq.
or to such other address as either party may from time to time specify in writing to the
other party. Any notice shall be effective only upon delivery or refusal to accept delivery by the
intended recipient.
Section 8.2 Assignments; Successors and Assigns.
Neither party may assign its rights or obligations under this Agreement without the prior
written consent of the other party, except that Buyer may assign its rights and obligations to an
affiliate or subsidiary wholly controlled by all Buyer parties. Subject to the provisions of this
Section 8.2, this Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective successors and assigns. No assignment shall release the assigning party
from its obligations or liabilities hereunder accruing prior to the date of such assignment.
Section 8.3 Right of Entry.
Prior to the Effective Date, Seller has provided, and after the Effective Date shall
continue to provide, Buyer with reasonable access to the Property and the records of Seller
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relating thereto. Without limiting the foregoing, prior to any entry to perform any invasive on-
site testing, Buyer shall give Seller written notice thereof, including the identity of the company
or persons who will perform such testing and the proposed scope of the testing. Seller or its
representative may be present to observe any testing (whether or not invasive) or other inspection
performed on the Property. Buyer shall maintain, and shall assure that its contractors maintain
public liability and property damage insurance in amounts and in form and substance adequate to
insure against all liability of Buyer and its agents, employees or contractors, arising out of any
entry or inspections of the Property pursuant to the provisions hereof, and Buyer shall provide
Seller with evidence of such insurance coverage upon request by Seller. Buyer shall indemnify
and hold Seller harmless from and against any costs, damages, liabilities, losses, expenses, liens
or claims (including, without limitation, reasonable attorney’s fees), arising out of or relating to
any entry on the Property by Buyer, its agents, employees or contractors in the course of
performing the inspections, testings or inquiries provided for in this Agreement. Buyer agrees to
keep the Property free from any liens arising out of any work performed, materials furnished or
obligations incurred by or on behalf of Buyer or Buyer’s agents, employees or contractors with
respect to any inspection or investigation of the Property. If any such lien at any time shall be
filed, Buyer shall cause the same to be discharged of record within ten (10) days thereafter by
satisfying the same or, if Buyer, in its discretion and in good faith determines that such lien
should be contested, by recording a bond or providing title insurance insuring over such lien.
Failure by Buyer to discharge or bond over or provide title insurance over such lien shall be a
material breach of this Agreement and Seller may terminate this Agreement and pursue such
other rights and remedies against Buyer as may be available at law or in equity. Buyer’s
indemnity obligations under this Section 8.3 shall survive the Closing or other termination of this
Agreement.
Section 8.4 Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the
State of California without regard to its choice of laws rules.
Section 8.5 Interpretation of Agreement.
Each party has received independent legal advice from its attorneys with respect to the
advisability of executing this Agreement and the meaning of the provisions hereof. The
provisions of this Agreement shall be construed as to their fair meaning, and not for or against
any party based upon any attribution to such party as the source of the language in question. The
article, section and other headings of this Agreement are for convenience of reference only and
shall not be construed to affect the meaning of any provision contained herein. Where the
context so requires, the use of the singular shall include the plural and vice versa and the use of
the masculine shall include the feminine and the neuter. The term “person” shall include any
individual, partnership, joint venture, corporation, trust, unincorporated association, any other
entity and any government or any department or agency thereof, whether acting in an individual,
fiduciary or other capacity. The words “include” and “including” shall in all instances be
interpreted as though followed by the words “without limitation.”
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Section 8.6 Amendments.
This Agreement may be amended or modified only by a written instrument signed by
Buyer and Seller and duly authorized by the City Council.
Section 8.7 No Partnership.
The relationship of the parties hereto is solely that of seller and buyer with respect to the
Property and no joint venture, other partnership or agency relationship exists between the parties
hereto. Neither party has any fiduciary relationship hereunder to the other.
Section 8.8 No Third Party Beneficiary.
The provisions of this Agreement are not intended to benefit any third parties.
Section 8.9 Joint and Several Liability.
The Seller acknowledges that Buyer consists of more than one entity which intends to
form a limited liability company and that Buyer intends to have this Agreement assigned to such
entity as provided in Section 8.2. Prior to such assignment, the liability of each Buyer Party shall
be joint and several.
Section 8.10 Limitation of Liability.
Buyer acknowledges and agrees that no member, official or employee of Seller shall be
personally liable to Buyer, or any successor in interest, in the event of any default or breach by
City, or for any amount which may become due to Buyer or its successors, or on any obligations
under the terms of this Agreement.
Section 8.11 Recordation; Actions to Clear Title.
Prior to Closing Buyer shall not record this Agreement, any memorandum of this
Agreement, any assignment of this Agreement or any other document which would cause a cloud
on the title to the Property. If Buyer fails to complete its purchase of the Property for any reason,
or if this Agreement shall terminate for any reason not solely due to Seller’s default hereunder,
then Buyer, at no cost to Seller, shall promptly execute, acknowledge and deliver to Seller, all
within thirty (30) days after written request from Seller, a quitclaim deed, in recordable form, in
favor of Seller, and any other documents requested by Seller to remove any cloud on title to the
Property that may exist as the result of the existence of this Agreement or any escrow relating to
this Agreement. In the event Buyer fails to so execute and deliver any such document, Buyer
shall pay all losses, damages, costs and expenses, including, but not limited to, Seller’s
reasonable attorneys’ fees, incurred in connection with Buyer’s breach of its obligations under
this Section including interest, carrying costs associated with the Property from the date of
Buyer’s failure to comply with this Section and costs of clearing any such cloud on title.
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Section 8.12 Severability.
If any term, covenant, condition or provision of this Agreement, or the application thereof
to any person or circumstance, to any extent shall be held by a court of competent jurisdiction to
be invalid, void or unenforceable, the remainder of the terms, covenants, conditions or provisions
of this Agreement, or the application thereof to any person or circumstance, shall remain in full
force and effect and in no way shall be affected, impaired or invalidated thereby; except that if
the court which determines the provision to be invalid also determines such provision to be of
such materiality as to make enforcement of the remaining terms inequitable, then this Agreement
shall terminate.
Section 8.13 Waiver of Covenants, Conditions or Remedies.
The waiver by one party of the performance of any covenant, condition or promise under
this Agreement shall not invalidate this Agreement, nor shall it be considered a waiver by it of
any other covenant, condition or promise under this Agreement. The waiver by either or both
parties of the time for performing any act under this Agreement shall not constitute a waiver of
the time for performing any other act or an identical act required to be performed at a later time.
The exercise of any remedy provided in this Agreement shall not be a waiver of any consistent
remedy provided by law, and the provision in this Agreement for any remedy shall not exclude
other consistent remedies unless they are expressly excluded.
Section 8.14 Termination.
This Agreement may be terminated: (i) by Buyer, if prior to expiration of Buyer’s Due
Diligence Period, Buyer elects not to proceed with purchase of the Property; (ii) by Buyer, if
prior to Closing, Buyer’s Conditions Precedent to Conveyance have not been satisfied or waived;
(iii) by Seller, if prior to Closing Seller’s Conditions Precedent to Conveyance have not been
satisfied or waived; or (iv) if there is an uncured default, by written notice from the party not in
default. The party wishing to terminate the Agreement must provide the other party with written
notice of termination. In the event of termination by Seller due to Buyer’s failure to satisfy
Seller’s Conditions Precedent to Closing or Buyer’s default, the Good Faith Deposits shall be
retained by Seller as liquidated damages.
Section 8.15 Cooperation in the Event of Third-Party Legal Challenge.
Seller and Buyer shall cooperate in the event of any legal action instituted by a third party
or other governmental entity or official challenging the validity of this Agreement. Should the
challenge arise out of an uncured default by one of the parties; and to the extent that the
defaulting party determines to contest such litigation challenge, the party in default shall
indemnify and hold the other party harmless from and against any and all claims for recovery of
the third party’s litigation expenses, including attorney’s fees. If the defaulting party elects, in its
sole and absolute discretion, not to contest such litigation challenges, then the other party shall
have no obligation to contest such challenges. Both Parties obligations under this Section 8.15
shall survive the Closing or other termination of this Agreement.
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Section 8.16 Time.
Time is of the essence in the performance of each of the parties’ respective obligations
contained herein.
Section 8.17 Entire Agreement.
This Agreement, including the Exhibits hereto, contains all representations, warranties
and covenants made by Buyer and Seller and constitutes the entire understanding between the
parties hereto with respect to the subject matter hereof. Any prior correspondence, memoranda
or agreements are replaced in total by this Agreement together with the Exhibits hereto.
Section 8.18 Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which taken together shall constitute one and the same instrument.
Section 8.19 Exhibits.
All exhibits to which reference is made in this Agreement are deemed incorporated in this
Agreement.
Section 8.20 Force Majeure.
A force majeure event shall mean delay that a party could not reasonably have been
expected to avoid and which by exercise of due diligence have been unable to overcome caused
by: acts of God, war, fire, earthquake, windstorm, flood or other natural catastrophe, civil
disturbance or disobedience, labor disputes, vandalism, sabotage, terrorism, or restraint by order
of a court or administrative agency with jurisdiction. A party’s financial inability to perform or
obtain financing or adverse economic conditions generally shall not be grounds for claiming a
force majeure event.
[SIGNATURES ON FOLLOWING PAGE]
OAK #4825-3884-0612 v921
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
SELLER:
City of Rohnert Park
Dated: _______________, 2015 By:
Amy O. Ahanotu, Mayor
ATTEST:
By:
APPROVED AS TO FORM:
By:
Michelle Marchetta Kenyon, City Attorney
BUYER:
356 ADVISORS, INC., a California Corporation
Dated: _______________, 2015 By:
Name: Bruce Orr
Its: President
MJW INVESTMENTS, LLC, a California limited liability
corporation
Dated: _______________, 2015 By:
Name: Matthew J. Waken
Its: Managing Member
EXHIBIT A
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EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
The land referred to herein is situated in the State of California, County of Sonoma, City of
Rohnert Park and described as follows:
Lot 1, as shown upon that certain Parcel Map entitled “Parcel Map No. 180”, filed for record
December 11, 2009, in Book 736 of Maps, at Pages 30, 31 and 32 Sonoma County Records,
excluding the southerly three acres of said Lot 1.
APN: 143-040-124
EXHIBIT B-1
OAK #4825-3884-0612 v9
EXHIBIT B
DEVELOPMENT AGREEMENT TERM SHEET
Development Agreement (“DA”) between the City of Rohnert Park (“City”) and 356
Advisors, Inc. and MJW Investments, LLC (together the “Buyer”) concerning the development
of certain real property consisting of 12.25 acres and located at Labath Avenue and Carlson
Avenue in the City of Rohnert Park (“Property”)
1. Purpose of Agreement. The purpose of the DA is to set forth (a) Buyer’s vested rights to
develop and construct an up to 300-room select service and/or suite hotel(s) with a separate retail
and/or other commercial or office component in addition to the hotel (the “Project”) in
accordance with the general plan, land use designation and zoning in place as of the date of the
Agreement, (b) Buyer ’s obligations to phase the Project to ensure the hotel is constructed prior to
or simultaneously with retail/commercial development, and (c) Buyer’s obligation to construct
and/or fund certain required public improvements.
2. Term. The term would be five years commencing on the effective date of the DA, with
one possible two-year extension, which may be approved in City’s reasonable discretion if Buyer
has made progress toward constructing the Project.
3. Development. The Project would be developed in accordance with the general plan
designation and zoning currently in place and the following approvals to be obtained by the
Buyer concurrently with approval of the DA: (a) Conditional Use Permit; and (b) Site Plan and
Architectural Review (the “Project Approvals”). The permitted uses, density and intensity of
development and maximum height and size of proposed buildings shall all be in accordance with
the Project Approvals, including any mutually agreed upon amendments.
4. Phasing. Buyer would agree to certain milestones for development as follows:
(a) Buyer would obtain a building permit to construct the hotel prior to, or in
concurrence with, issuance of a building permit for any other development on the Property and
commence construction of the Hotel no later than three years from the Effective Date of the
Purchase and Sale Agreement for the Buyer’s purchase of the Property, subject to force majeure
as defined in Section 8.20 of the Purchase and Sale Agreement; and
(b) Buyer would complete construction of the hotel and obtain a certificate of
occupancy within 18 months of commencement of construction, subject to force majeure as
defined in Section 8.20 of the Purchase and Sale Agreement.
5. CEQA. Buyer will comply with all mitigation measures in the Stadium Area Master Plan
EIR and Mitigation Monitoring and Reporting Plan (MMRP). Buyer shall comply with all
additional mitigation measures imposed as a result of the Project-level CEQA process.
6. Vested Rights. City would grant Buyer the vested right to develop and construct the
Project, in accordance with the City general plan and zoning in place as of the effective date and
the Project Approvals, except for:
EXHIBIT B-2
OAK #4825-3884-0612 v9
(a) New City laws and regulations regarding procedural matters, such as hearing
bodies, appeals and applications, provided such laws and regulations are uniformly applied on a
city-wide basis to all substantially similar types of development projects and properties;
(b) New City laws and regulations that revise the City’s uniform construction codes,
and that are in effect at the time of permitting, provided such laws and regulations are uniformly
applied on a city-wide basis to all substantially similar types of development projects and
properties;
(c) New City laws and regulations that are necessary to protect physical health and
safety of the public or do not conflict with the DA or Project Approvals, provided such laws and
regulations are uniformly applied on a city-wide basis to all substantially similar types of
development projects and properties; and
(d) Changes to the law mandated by State or Federal Law, as provided in
Government Code section 65869.5.
7. Benefits to City.
(a) Buyer would agree to construct to City standards and specifications and/or
dedicate the following improvements for public use within the noted time-frames:
(i) Final 1/3 of Carlson Avenue improvements, including curb, gutter,
sidewalk and 16-foot wide of travelway to provide an ultimate curb-to-curb width of 48 feet,
prior to occupancy of first development project;
(ii) Sidewalk along Dowdell Avenue frontage, prior to occupancy of first
development project;
(iii) Labath Avenue northbound right-turn lane at Martin Avenue widening and
improvements (or as determined by a traffic study), prior to occupancy of first development
project;
(iv) Storm drain outfall into Hinebaugh Creek (design, permitting, and
construction), as shown on the Stadium Lands approved tentative map, prior to occupancy of
first development project;
(v) 12-inch water main in Redwood Drive between Hinebaugh Creek PRV
vault to Martin Avenue, prior to occupancy of first development project.
(vi) Site irrigation connected to existing recycled water system within Labath
Avenue and/or Dowdell Avenue at a date to be determined.
(b) Buyer would contribute its proportionate share, based on anticipated water usage
by the Project, estimated cost of $110,000, toward a water storage tank located on the west side
of the City prior to issuance of first building permit.
EXHIBIT B-3
OAK #4825-3884-0612 v9
(c) Buyer would enter into a Storm Water Maintenance Agreement to address long-
term maintenance of on-site storm drainage and water quality features within the City. The
Storm Water Maintenance Agreement shall include funding maintenance of any off-site storm
drainage improvements required and installed with the development.
8. Fees, Taxes, Reimbursements and Assessments.
(a) Impact Fees. Buyer would pay impact fees in place at the time the Development
Agreement is executed, at the rate then in effect as shall be increased based upon the
Construction Cost Index from the Engineering News Report.
(b) Taxes and Assessments. City could impose and Buyer would pay any new,
increased or modified taxes or assessments, provided such taxes or assessments are equally
applied on a city-wide basis and have a uniform effect on a broadly-based class of land, projects
or taxpayers, as applicable, within the City.
(c) Processing and Consultant Fees. Buyer would pay all reasonable processing fees
imposed by the City to cover the actual costs to City of processing applications for the Project
Approvals, as such fees are uniformly applied, at the rate in effect at the time of application.
Buyer would also pay all reasonable, out-of-pocket costs of City of engaging third-parties
consultants as City may deem reasonably necessary to process such applications.
(d) Reimbursements. Buyer will have no obligations under the COSTCO
Reimbursement Agreement as City will provide funding from the proceeds of the sale of the
Property. Buyer shall pay the developer of the Reserves site the amount of $62,995, as set forth
in the Reimbursement Agreement for the Reserves project, and provide City with proof of
payment prior to or at issuance of the first building permit or grading permit for the Project.
Buyer shall also pay Redwood Equities Investments the amount of $83,585.35, as determined by
the Reimbursement Agreement for the Stadium Lands Master Plan Environmental Impact Report
and provide City with proof of payment prior to or at issuance of the first building permit or
grading permit for the Project.
9. General Provisions.
(a) Joint and Several Liability. Each of the Buyer parties would be jointly and
severally liable under the terms of the DA, unless and until the DA is assigned to a single party.
(b) Assignments. Assignments of Buyer’s rights and obligations under the DA would
be subject to City’s review and approval, in City’s reasonable discretion which will not be
unreasonably withheld. Any assignment, other than reasonable financing requirements, would
be documented by an assignment and assumption agreement in a form reasonably acceptable to
City.
(c) Remedies/Default/Termination. The DA would include standard provisions for
notice of default and opportunity to cure. In the event of default by City, the only remedy would
be specific performance of the terms and provisions of the DA. In event of default by Buyer, the
primary remedy would be specific performance of the terms and provisions of the DA and the
City’s right to repurchase the Property. A claim for actual monetary damages would only be
EXHIBIT B-4
OAK #4825-3884-0612 v9
considered if specific performance is not granted by a court. In no event would either party be
entitled to any consequential, punitive or special damages. City and Buyer would be required to
follow the procedures set forth in Government Code sections 65867 and 65868, with a hearing
before the City Council, prior to termination of the DA. In the event of termination, the only
surviving provisions would be the Buyer’s indemnification of City. A default under the
Development Agreement would also be a default under the Purchase and Sale Agreement, by
which the Property is transferred, and a default under the Purchase and Sale Agreement would
also be a default under the Development Agreement.
(d) Indemnity. Buyer would defend, indemnify and hold harmless the City, with
legal counsel reasonably acceptable to the City Attorney, in any action brought by a third party
to challenge the DA, including the related environmental review. In addition, Buyer would
defend, indemnify and hold harmless the City for any claims arising out of the development and
construction of the Project.
(e) Annual Review. Buyer would provide City with annual written documentation
demonstrating good faith compliance with the terms of the Development Agreement. If the City
determines that Buyer has not complied in good faith, the Buyer shall have 30 days from written
notice of default to cure the default, otherwise the City may terminate the DA in accordance with
Government Code section 65865.1.
(f) Application Approval. City’s signature on planning applications as property
owner shall not grant approval of applications. City retains its full discretionary authority
regarding approval of planning and other land use approvals regardless of signature by City as
property owner on such applications.
EXHIBIT C-1
OAK #4825-3884-0612 v9
EXHIBIT C
FORM OF GRANT DEED
RECORDING REQUESTED BY
______________ Title Insurance Company
AND WHEN RECORDED MAIL TO:
____________________________
____________________________
Attention: ___________________
(Space Above This Line for Recorder’s Use Only)
[Exempt from recording fee per Gov. Code § 27383]
GRANT DEED
(INCLUDING RIGHT TO REPURCHASE)
For valuable consideration, the receipt of which is hereby acknowledged,
The CITY OF ROHNERT PARK, a California municipal corporation (“Grantor”), hereby
grants to 356 ADVISORS, INC., a California corporation, and MJW INVESTMENTS, LLC, a
California limited liability corporation (collectively, “Grantee”), all of Grantor’s right, title, and
interest in the real property described in Attachment 1 attached hereto and incorporated herein
(“Property”).
Subject to the provisions of Section 7.3 of an Agreement for Purchase and Sale and Terms
of Development, between Grantor and Grantee, dated as of (“Agreement”), the
Grantor shall have the right, at its option, to repurchase, reenter and take possession of the Property
in accordance with the terms of the Agreement.
GRANTOR:
City of Rohnert Park
Dated: _______________, 201_ By: [FORM – DO NOT EXECUTE]
___________________, Mayor
[signature must be notarized]
ATTEST:
By:
___________________, City Clerk
EXHIBIT C-2
OAK #4825-3884-0612 v9
APPROVED AS TO FORM:
By:
___________________, City Attorney
ACKNOWLEDGMENT
OAK #4825-3884-0612 v9
ACKNOWLEDGMENT
State of California )
) ss
County of ___________ )
On , before me,___________________________________________, (Name of Notary)
notary public, 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.
(Notary Signature)
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.
ATTACHMENT 1 - EXHIBIT C
OAK #4825-3884-0612 v9
ATTACHMENT 1 - EXHIBIT C
PROPERTY DESCRIPTION
[to be inserted prior to close of escrow]
2015 STR CHAIN SCALES
Luxury
Upper Upscale
21 AKA
71 Andaz
295 Conrad
369 Dorchester Collection
490 Fairmont
510 Four Seasons
761 Grand Hyatt
800 InterContinental
991 JW Marriott
862 Langham
930 Loews
945 Luxury Collection
965 Mandarin Oriental
1046 Montage
1086 Belmond
759 Park Hyatt
1560 Ritz-Carlton
1283 RockResorts
1296 Rosewood
730 Sofitel
1325 St Regis
1500 Taj
1118 The Peninsula
1107 Thompson Hotels
1605 Trump Hotel Collection
1642 Viceroy
1646 W Hotel
1652 Waldorf=Astoria
55 Ace Hotel
17 Autograph Collection
249 Club Quarters
365 Dolce
392 Dream Hotels
450 Embassy Suites
529 Gaylord
638 Hard Rock
670 Hilton
760 Hyatt
803 Joie De Vivre
845 Kimpton
1020 Le Meridien
990 Marriott
992 Marriott Conference Center
1045 Millennium
1080 Omni
1091 Pan Pacific Hotel Group
1183 Radisson Blu
1220 Renaissance
1360 Sheraton Hotel
1430 Sonesta Hotel
1445 Starhotels
1498 Swissotel
1670 Warwick Hotels
1680 Westin
1710 Wyndham
6 aloft Hotel
11 Ascend Collection
87 Aston Hotel
134 Best Western Premier
207 Cambria Suites
209 Canad Inn
235 Club Med
265 Coast Hotels & Resorts USA
308 Courtyard
330 Crowne Plaza
368 Disney Hotels
380 DoubleTree
213 Legacy Vacation Club
1015 Melia
720 Novotel
869 NYLO Hotel
1090 Outrigger
1180 Radisson
1270 Residence Inn
1438 Springhill Suites
1950 3 Palms Hotels & Resorts
86 Ayres
133 Best Western Plus
183 Boarders Inn & Suites
246 Centerstone Hotels
230 Clarion
280 Comfort Inn
282 Comfort Suites
306 Country Inn & Suites
290 Doubletree Club
400 Drury Inn
402 Drury Inn & Suites
403 Drury Lodge
401 Drury Plaza Hotel
404 Drury Suites
485 Fairfield Inn
545 Golden Tulip
610 Hampton Inn
611 Hampton Inn & Suites
680 Holiday Inn
683 Holiday Inn Express
709 Home2 Suites by Hilton
706 Isle of Capri
846 Larkspur Landing
900 Lexington
1965 Night Hotels
1082 OHANA
1094 Park Inn
1407 Silver Cloud
1623 Tryp by Wyndham
1595 TownePlace Suites
1350 Westmark
1715 Wyndam Garden Hotel
90 Xanterra
42 A Victory Hotels
115 America’s Best Suites
60 AmericInn
180 Baymont Inn & Suites
130 Best Western
200 Cabot Lodge
195 Candlewood Suites
240 ClubHouse
263 Cobblestone
320 Crossings by GrandStay
334 Crystal Inn
557 GrandStay Residential Suites
644 Hawthorn Suites by Wyndham
790 InnSuites Hotel
865 Lakeview Distinctive Hotels
882 La Quinta Inn & Suites
955 MainStay Suites
1033 Oak Tree Inn
1160 Quality Inn
1200 Ramada
1240 Red Lion
1281 Rode Inn
1354 Settle Inn
1380 Shilo Inn
1423 Sleep Inn
1630 Vagabond Inn
1641 Vista
1687 Wingate by Wyndham
33 Affordable Suites of America
110 America’s Best Inn
120 Americas Best Value Inn
150 Budget Host
163 Budget Suites of America
117 Budgetel
305 Country Hearth Inn
312 Crestwood Suites
317 Crossland Suites
350 Days Inn
390 Downtowner Inn
440 Econo Lodge
483 Extended Stay America
410 E-Z 8
500 Family Inns of America
548 Good Nite Inn
560 Great Western
575 GuestHouse Inn
Upscale
423 element
508 Four Points
910 Grand America
561 Great Wolf Lodge
309 Hilton Garden Inn
685 Homewood Suites
702 Hotel Indigo
753 Hyatt House
762 Hyatt Place
1125 Phoenix Inn
1202 Ramada Plaza
Midscale
Economy
659 Home-Towne Suites
740 Howard Johnson
795 InTown Suites
822 Jameson Inn
832 Key West Inn
840 Knights Inn
1000 Master Hosts Inn
1005 Masters Inn
1030 Microtel Inn & Suites by Wyndham
1060 Motel 6
1065 National 9
1110 Passport Inn
1115 Pear Tree Inn
1235 Red Carpet Inn
1250 Red Roof Inn
1290 Rodeway Inn
1322 Savannah Suites
1345 Scottish Inn
1347 Select Inn
1456 Studio 6
1457 Suburban Extended Stay
1463 Sun Suites Hotels
1470 Super 8
1615 Travelodge
1632 Value Place
1725 Yotel
1447 Staybridge Suites
Upper Upscale cont.Upper Midscale Midscale cont.Economy cont.
Brands/Chains are slotted by Chain Scale based on the previous year’s annual system wide (global) Average Daily Rate. Rate ranges defining each Chain Scale are determined by STR & STR Global. The STR Chain Scale list is a subset
of the larger Global Chain Scale list. Brand Chain Scale pairings are consistent with each list. Brands listed are in U.S., Mexico, Caribbean and Canada. If you have any questions about the Chain Scales, please email support@str.com.
Copyright 2015. STR, Inc. Publishing or reproducing this information is strictly prohibited. www.str.com +1 (615) 824 8664. Last updated January 2015.
1436 Sonesta ES Suites
1256 Real Inn
355 Delta
1092 Palace Resorts
14 Affinia
1536 Curio Collection
931 Hyatt Regency
1484 Shell Vacations Club
1142 Aqua Hotels & Resorts
216 Chase Suites 1244 FairBridge Inn