2020/09/22 City Council Resolution 2020-090 RESOLUTION NO. 2020-090
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
AUTHORIZING AN AGREEMENT WITH WILDLIFE HERITAGE FOUNDATION
TO FUND INITIAL AND ON-GOING COSTS TO SUPPORT WILFRED AVENUE
CALIFORNIA TIGER SALAMANDER MAINTENANCE MANAGEMENT PLAN,
AUTHORIZING CITY MANAGER TO INCREASE FY 2020/21 BUDGET BY$520,078
FOR THE PROJECT,AND RELATED ACTIONS
WHEREAS; On September 25, 2012, the City entered into The Joint Exercise of Powers
Agreement By and Between the City of Rohnert Park ("City"), the County of Sonoma
("County") and the Federated Indians of Graton Rancheria("Tribe") for Implementation of
Mitigation Measures for Widening Wilfred Avenue ("Wilfred JEPA"); and
WHEREAS, Section 6.6 of the Wilfred JEPA provides that the Tribe make payments to
the City for the purpose of funding the maintenance of Wilfred Avenue west of the City's 2012
city limit; and
WHEREAS, On May 29, 2013, the United States Fish and Wildlife Service issued a
Biological Opinion for the Wilfred Avenue Improvement Project for Inclusion with the
California Tiger Salamander and Three Endangered Vernal Pool Plant Species on the South
Santa Rosa Plain("Biological Opinion"); and
WHEREAS,the Biological Opinion requires the City to develop a conceptual Tiger
Salamander Plan("CTS Plan")that includes a component to establish a funding mechanism to
provide funding to support monitoring, maintenance, and management of the CTS Plan in
perpetuity; and
WHEREAS,the Wildlife Heritage Foundation is a California statewide land trust with
expertise in the area of the protection of wildlife and open space habitat in perpetuity; and
WHEREAS,the City desires to enter into an Agreement with Wildlife Heritage
Foundation to fund initial and on-going costs to support the Wilfred Avenue California Tiger
Salamander Maintenance Management Plan in the amount of$520,078.
NOW,THEREFORE, BE IT RESOLVED by the City Council of the City of Rohnert
Park as follows:
1. The above recitals are true and correct and material to this Resolution.
2. The City Manager is hereby authorized and directed to execute the contract with Wildlife
Heritage Foundation in substantially similar form to Exhibit A, which is attached hereto
and incorporated by this reference, for the sum of five hundred and twenty-one thousand
seventy-eight dollars ($520,078)to fund initial and on-going costs to support the Wilfred
Avenue California Tiger Salamander Maintenance Management Plan.
3. The Finance director is authorized to increase appropriations to the Wilfred Avenue
Special Revenue Fund (177) in the amount of$520,078.
4. This Resolution shall become effective immediately.
5. All portions of this resolution are severable. Should any individual component of this
Resolution be adjudged to be invalid and unenforceable by a body of competent
jurisdiction, then the remaining resolution portions shall continue in full force and effect,
except as to those resolution portions that have been adjudged invalid. The City Council
of the City of Rohnert Park hereby declares that it would have adopted this Resolution
and each section, subsection, clause, sentence, phrase and other portion thereof,
irrespective of the fact that one or more section, subsection, clause, sentence, phrase or
other portion may be held invalid or unconstitutional.
DULY AND REGULARLY ADOPTED this 22 day of September, 2020.
CITY OF ROHNERT PARK
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Josep . Callinan, Mayor
ATTEST:
Sylvia Cu eu Lopez, City Clerk
Attachment: Exhibit A
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BELFORTE: STAFFORD:Abu,MACKENZIE:
AYES: (NOES: ( 1 ) ABSENT: ( 9:S) ABSTAIN. 0 C)ALLINA
Resolution 2020-090
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ENDOWMENT AGREEMENT
FOR THE
WILFRED AVENUE IMPROVEMENT PROJECT
This ENDOWMENT AGREEMENT FOR THE WILFRED AVENUE IMPROVEMENT PROJECT
(“Agreement”) is made and entered into on ____________, 2020 (the “Effective Date”), by and
between the WILDLIFE HERITAGE FOUNDATION, a California nonprofit public benefit
corporation (“WHF”), and the CITY OF ROHNERT PARK (“City”). WHF and City are sometimes
referred to herein collectively as the “Parties” and each individually as a “Party.”
RECITALS
WHEREAS, in connection with the City’s Wilfred Avenue Improvement Project in the City
of Rohnert Park, County of Sonoma (the “Project”), certain state and federal regulatory
agencies have issued the following permits that set forth certain management and monitoring
requirements relating to the Project (collectively, “Permits”):
A. United States Fish and Wildlife Service (“USFWS”) Biological Opinion (File No.
08ESMF00-2013-F-0235, May 29, 2013); and
B. Incidental Take Permit (ITP) issued by the California Department of Fish and
Wildlife (“CDFW”) to City (ITP No. 2081-2012-056-03) on May 31, 2013; and
C. Amendment No. 1 to Incidental Take Permit (ITP No. 2081-2012-056-03),
issued by CDFW to City on June 18, 2013; and
D. Department of the Army Permit (No. 2013-00011N), issued by the U.S. Army
Corps of Engineers (“ACOE”), dated May 31, 2013.
WHEREAS, the Permits require the City to undertake certain management, mitigation,
and monitoring activities as set forth in the following documents (collectively, the
“Management Plans”):
A. Conceptual Tiger Salamander Tunnel Implementation and Management Plan,
Wilfred Avenue Improvement Project (Corps File No. 2013-00011N; USFWS
File No. 81420-2008-F-0261), prepared for the City, June 2013; and
B. City of Rohnert Park, Department of Public Works, Wilfred Avenue
Maintenance Management Plan, June 21, 2019.
WHEREAS, WHF is: (a) a California nonprofit public benefit corporation exempt from
taxation under Section 501(c)(3) of the Internal Revenue Code (“Code”), and (b) qualified to
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hold endowments pursuant to California Government Code sections 65965-65968 (a “Qualified
Charitable Conservation Organization”).
WHEREAS, the Property Analysis Record, dated August 24, 2020 attached to this
Agreement as Attachment A sets forth all of the costs, fees, and expenses for the City’s
management, maintenance, monitoring, and other activities set forth in the Management Plan
(“PAR”).
WHEREAS, the City desires to fund, and WHF to hold and manage, an endowment to
cover the costs of City’s management, maintenance, monitoring, and other activities, in perpetuity, as
required by the Permits and set forth in the Management Plan, subject to the terms and conditions
of this Agreement.
AGREEMENTS
NOW THEREFORE, in consideration of the mutual promises made herein, the Parties
agree as follows:
1. NAME OF FUND. There is hereby established in WHF, and a part thereof, a fund
designated as the “Wilfred Avenue Endowment Fund” (the “Fund”) to receive contributions in
the form of money, and to administer the same.
2. PURPOSE. The purpose of the Fund shall be to fund the management,
maintenance, monitoring, and other activities conducted by City in accordance with the
Management Plan commencing upon the Effective Date (collectively, the “Management
Activities”), which Management Activities City hereby agrees to undertake.
3. FUNDING.
A. Within sixty (60) days of the Effective Date, City shall transfer to WHF the
following amounts in immediately available funds for the following purposes:
(i) The sum of Fifty-Four Thousand Seven Hundred Sixty-Four Dollars
($54,764) (the “Initial Capital Account”) to fund the Management Activities undertaken
by City and endowment management costs incurred by WHF during the three year
period immediately following the date City funds the Initial Capital Account with WHF
(the “Initial Management Period”); and
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(ii) The sum of Four Hundred Sixty Thousand Three Hundred
Fourteen Dollars ($460,314) (the “Permanent Endowment”) to fund the Management
Activities undertaken by City and endowment management costs incurred by WHF in
perpetuity following expiration of the Initial Management Period (the “Perpetual
Endowment Period”); and
(iii) The sum of Five Thousand Dollars ($5,000) (the “Legal Funds”) to
fund WHF’s legal and emergency fund.
B. Initial Capital Account. No distribution shall be made from the Initial
Capital Account for any purpose unrelated to, or unconnected with the following for costs
incurred during the Initial Management Period: (i) expenditures of City to perform the
Management Activities during the Initial Management Period; and (ii) the fees and expenses set
forth in Section 12 of this Agreement. Any amount remaining in the Initial Capital Account
following completion of the Initial Management Period shall be transferred to the Permanent
Endowment.
C. Permanent Endowment. No distribution shall be made from the
Permanent Endowment for any purpose unrelated to, or unconnected with the following during
the Perpetual Endowment Period: (i) expenditures of City to perform the Management
Activities during the Perpetual Endowment Period; and (ii) the fees and expenses set forth in
Section 12 of this Agreement.
D. Legal Funds. The Legal Funds paid to WHF shall be made immediately
available to WHF and shall not be managed or administered as part of the Permanent
Endowment. The Legal Funds are not included in, nor shall they be added to, or administered
as part of, the Permanent Endowment.
E Additional Funding. WHF has the discretion to accept, but not require,
additional funds acceptable to WHF from time to time from City and from any other individuals,
entities, and other sources to be added to either the Fund, all subject to the provisions hereof;
provided, that WHF shall not be responsible for undertaking or paying any costs for any
activities not contemplated by the Management Plan without having received additional
funding to cover those costs. All grants, bequests, and devises to WHF shall be irrevocable once
accepted by WHF and shall satisfy any and all obligations related to the Fund.
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4. PROPERTY ANALYSIS REPORTS; PRIORITIZATION.
A. PAR. The Parties hereby agree and acknowledge that the PAR represents
a good faith estimate by the Parties of the costs of the Management Activities required under
the Management Plan in a typical year as of the Effective Date; (ii) the City will follow adaptive
management practices in undertaking the Management Activities, which may require the
expenditure of varying amounts of funds on the items listed in the PAR in any given year; (iii)
the amounts listed in the PAR are not intended to be a “floor” or a “ceiling” of annual costs for
the various items listed in the PAR; and (iv) the costs listed in the PAR are estimates based on
the Management Plan as of the Effective Date, and the cost to perform the items listed in the
PAR are likely to increase over time, as a matter of course, due to inflation. Notwithstanding
any contrary provision herein, in no event shall the PAR be deemed to limit WHF’s ability to
fund any permitted activities so long as such funds are used in accordance with Section 2
above.
B. Prioritization. Due to unforeseen circumstances, prioritization of tasks,
including tasks resulting from new requirements, may be necessary if insufficient funding is
available in the Fund to accomplish all Management Activities. If task prioritization is required
with regards to the Management Activities, the Parties shall meet to discuss and approve task
priorities and funding availability to determine which tasks will be implemented. In general,
tasks shall be prioritized in the following order: (i) as duly required by a Regulatory Agency or
any other local, state, or federal agency with jurisdiction over the Permits; (ii) as necessary to
maintain or remediate habitat quality; and (iii) to tasks that monitor resources, particularly if
past monitoring has not shown downward trends. Equipment and materials necessary to
implement priority tasks also will be considered priorities.
5. DISTRIBUTIONS.
A. Distributions. Upon full funding of the Fund, as set forth in Section 3
above, the annual earnings allocable to the Fund, net of the fees and expenses set forth in
Section 5.B.(v) and Section 12 below, shall be committed, granted or expended solely for the
purposes of the Fund as set forth in Section 2 above. No distribution shall be made from the
Fund to any individual or entity if, in the judgment of WHF, such distribution will endanger
WHF’s tax exemption status with any taxing authority. Except as permitted under law, WHF
shall not make a distribution from the Fund if such distribution would endanger the principal of
the Fund or the Fund’s capacity to generate earnings adequate to fulfill its purpose. It is
intended by the foregoing that at the time a distribution is made from the Fund, the
distribution must be made solely for the purposes set forth in this Agreement.
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B. Payments. WHF shall make distributions from the Fund annually, in
arrears, in accordance with the following guidelines:
(i) Annual distributions to City shall be made on or before
December 31 in the amount equal to the costs incurred by City during the immediately
preceding twelve-month period ending September 30 that are consistent with the PAR.
(ii) Amounts specified in the PAR for Management Activities shall be
subject to annual adjustment for inflation based upon the most recent Consumer Price
Index All Urban Consumers, All Items, 1982-1984=100 (“CPI”). The annual invoiced
amount in most years is expected to be less than the annual costs calculated in the PAR,
such that a maximum amount will remain for investment in the Fund, allowing for larger
annual costs periodically in years when large capital improvements are required. In
years when larger distributions are required, WHF can distribute such amount to the
extent such amount is consistent with the Management Plan and the PAR. WHF shall
not be obligated to disburse any amounts that will jeopardize the principal amount of
the Fund or WHF’s tax exemption status.
(iii) In the case of emergencies or unforeseen funding needs, WHF
may make an additional disbursement at any time during the year as long as such
distribution: (a) is consistent with the PAR, and (b) is offset by savings on other items in
the PAR, and (c) would not jeopardize the principal amount of the Fund or WHF’s tax
exemption status.
(iv) On or before March 31 of each year, WHF shall provide USFWS,
CDFW, ACOE, and City an activity report for the immediately preceding calendar year
which details the beginning and ending balance of the Fund, and deposits,
disbursements, fees, earnings, gains, losses, and other investment activity accruing to
the Fund (the “Activity Report”), and within sixty (60) days of completion of WHF’s
annual financial statements audited by independent certified public accountants, WHF
shall provide to USFWS, CDFW, ACOE, and City a copy of such audited financial
statements (the “Audited Financial Statements”).
(v) WHF shall make distributions to itself, on an annual basis, to cover
the following: (i) costs to administer the Funds; and (ii) WHF’s costs in managing the
Fund, to the extent such costs are consistent with the PAR.
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6. VARIANCE. If (a) WHF ceases to be an organization that is legally qualified to
hold the Fund, proposes to dissolve, or becomes bankrupt, or (b) the Fund is dissolved, or
(c) this Agreement is terminated; the assets of the Fund, after payment or making provisions for
payment of any liabilities properly chargeable to the Fund or properly payable to WHF, the
Fund pursuant to this Agreement, shall be distributed to an qualified organization designated
by City, which qualified organization shall accept in writing the terms of this Agreement as a
condition to the distribution. For purposes of this Section, “bankruptcy” shall include (a) the
filing of a voluntary petition under any federal or state law for the relief of debts; (b) the
continued pendency of an involuntary proceeding under any such law on the 90th day after its
filing, or the entry of an order for relief under any such involuntary proceeding, whichever
occurs first; (c) the making of a general assignment for the benefit of WHF’s creditors; and
(d) the seizure by a sheriff, receiver, or trustee of a substantial portion of WHF’s assets.
7. ADMINISTRATIVE PROVISIONS. Notwithstanding anything herein to the
contrary, WHF shall hold the Fund, and all contributions to the Fund, subject to the provisions
of the applicable federal and California laws, and WHF’s Articles of Incorporation, Bylaws, and
“Endowment Management Policy” adopted by WHF’s board of directors. WHF’s Board of
Directors shall monitor the distribution of the funds maintained in the Fund and shall have all
powers of modification specified in the United States Treasury Regulations under Code
Section 170. Specifically, WHF shall have the right to modify any restriction or condition on the
distribution of funds where that restriction or condition becomes unnecessary, incapable of
fulfillment, or inconsistent with the purposes of this Agreement.
8. AMENDMENT. Any amendment of this Agreement requires the written
agreement of City and WHF. If required by policy or practice of such office, the written
concurrence of the California Attorney General’s office, Registrar of Charitable Trusts, shall also
be secured.
9. ACCOUNTING. The receipts and disbursements of the Fund shall be accounted
for separately and apart from each other and from other management and endowment funds
of WHF.
10. INVESTMENT OF FUNDS. WHF shall discharge its duties with respect to the Fund
with the care, skill, prudence, and diligence under the circumstances then prevailing, which
persons of prudence, acting in a like capacity and familiar with such matters, would use in the
conduct of an enterprise of a like character and with like aims, and shall exercise wise and
prudent investment strategies. WHF shall have all powers necessary or, in its sole discretion,
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desirable to carry out the purposes of the Fund, including, but not limited to, the power to
retain, invest, and reinvest the Fund and the power to commingle the assets of the Fund with
those of other funds for investment purposes. However, WHF shall separately account for the
balance of the Fund from other balances of all other accounts maintained or managed by WHF.
In the investment and management of the Funds, WHF shall act in accordance with the
standard set out in California Probate Code Section 18501, et seq. (the “Uniform Prudent
Management of Institutional Funds Act”). However, City and WHF acknowledge that the Fund
may suffer an investment loss causing a reduction of the Fund’s principal from time-to-time
through no fault of WHF. An investment loss of any amount of the Fund is not the
responsibility of WHF, provided WHF acted in accordance with WHF’s duty to prudently invest
the amounts in the Fund according to the standard set out in the Uniform Prudent
Management of Institutional Funds Act. However, City is not responsible for any investment
loss of any amount and shall have satisfied its obligation to fund the Fund by making the
contributions described in Section 3 of this Agreement. WHF is authorized to allocate receipts
and expenses between principal and income accounts according to the California Uniform
Principal and Income Act, as amended (the “CUPIA”). WHF will determine how to allocate
receipts or expenses that are not governed by the CUPIA. Nothing stated herein shall create an
obligation of WHF to supplement funds set forth in Section 3 of this Agreement as a result of
any losses that may be sustained to the Fund.
11. COSTS OF THE FUND. It is understood and agreed that the Fund shall bear a
reasonable and fair portion of the total investment and administrative costs, fees, and expenses
incurred by WHF.
12. GOVERNING LAW; CONSTRUCTION. This Agreement shall be governed by the
laws of the State of California and the United States of America, as applicable. The headings
and captions of Articles and Sections used in this Agreement are for convenience only, and this
Agreement shall be interpreted without reference to any headings or captions. Similarly, the
presence or absence of language in prior drafts of this document shall not be used to interpret
any provision hereof. This Agreement has been prepared and revised by attorneys for all of the
Parties, so any rule of law or construction that ambiguities are to be construed against the Party
responsible for drafting shall not apply.
13. NOTICES. All notices, requests, demands, and other communications required by
the Agreement shall be in writing and shall be deemed to have been duly given on the date of
service if served personally (or by electronic mail) on the party to whom notice is to be given, or
upon delivery, or rejection of delivery, if mailed to the party to whom notice is to be given, by
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overnight mail or first class mail, registered or certified, postage prepaid, or upon delivery, or
rejection of delivery, if sent by recognized overnight courier, and properly addressed as follows:
CITY: City of Rohnert Park
Attention: Leo Tacata, Senior Analyst
City of Rohnert Park
130 Avram Ave
Rohnert Park, CA 94928
Email: ltacata@rpcity.org
WHF: Wildlife Heritage Foundation
Attention: Darla Guenzler, Executive Director
563 Second Street, Suite 120
Lincoln, CA 95648
Email: darla@wildlifeheritage.org
Any Party may change its address for purposes of this Section by giving the other Party written
notice of the new address in the manner set forth above.
14. ENTIRE AGREEMENT; RECITALS; AMENDMENT. This Agreement constitutes the
entire agreement between the Parties, and supersedes all prior agreements, whether oral or in
writing. The Recitals to this Agreement are incorporated into the Agreement by this reference.
This Agreement may be amended only in writing and pursuant to Section 8.
15. WAIVER. No provision of this Agreement may be waived except in a written
instrument signed by the Party who is entitled to the benefit of said provision. No waiver of
any of the provisions of this Agreement shall constitute a waiver of any other provision nor shall
any waiver constitute a continuing waiver.
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16. CONSTRUCTION.
A. References to any provision of the Internal Revenue Code shall be
deemed references to the U.S. Internal Revenue Code of 1986 as the same may be amended
from time to time and the corresponding provision of any future U.S. Internal Revenue Code.
B. It is intended that nothing in this Agreement shall affect the status of
WHF as an entity that is a Qualified Charitable Conservation Organization. This Agreement shall
be interpreted in a manner consistent with the foregoing intention and so as to conform to the
requirements of the Internal Revenue Code and any regulations issued pursuant thereto
applicable to the intended status of WHF.
17. SEVERABILITY. If any provision of this Agreement is held to be unlawful or invalid
by any court of law with duly established jurisdiction over this Agreement, the Parties intend
that the remainder of this Agreement shall remain in full force and effect notwithstanding the
severance of the unlawful or invalid provision(s).
18. COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which shall be considered an original, but all of which together shall constitute one and
the same instrument.
19. COOPERATION. The Parties will cooperate in good faith to achieve the objectives
of this Agreement and to avoid disputes. The Parties will use good faith efforts to resolve
disputes at the lowest organizational level and, if a dispute cannot be so resolved, the Parties
will then elevate the dispute to the appropriate officials within their respective organizations.
20. AUTHORITY. Each person signing this Agreement on behalf of a Party to this
Agreement warrants to the other that its respective signatory has fully right and authority to
enter into and consummate this Agreement and the transactions contemplated hereby.
21. CONSTRUCTION OF AGREEMENT. The provisions contained herein shall not be
construed in favor of or against any of the Parties to this Agreement but shall be construed as if
each of the Parties prepared this Agreement.
22. BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding upon and shall
inure to the benefit of the Parties, their permitted successors and assigns.
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23. REMEDIES. No remedy or election hereunder shall be deemed exclusive, but
shall, whenever possible, be cumulative with all other remedies at law or in equity.
24. NECESSARY FURTHER ACTS. Each Party to this Agreement agrees to perform any
further acts and execute and deliver any documents that may be reasonably necessary to carry
out the intent of this Agreement.
25. TIME IS OF THE ESSENCE. Time and each of the terms, covenants and conditions
of this Agreement are expressly made of the essence.
26. ELECTRONIC SIGNATURES. The Parties hereto agree that if this Agreement is
transmitted electronically, the electronic transmittal of the execution signatures shall be
treated as original signatures and given the same legal effect as an original signature.
[Signatures follow]
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IN WITNESS WHEREOF, CITY and WHF have each executed this Agreement by a duly
authorized representative, effective as of the day and year first above written.
CITY:
CITY OF ROHNERT PARK
By ____________________________________
Name: ______________________________
Title: _______________________________
Date __________________________________
WHF:
WILDLIFE HERITAGE FOUNDATION,
a California nonprofit public benefit corporation
By ____________________________________
Darla Guenzler, Executive Director
Date __________________________________