2020/11/24 City Council Resolution 2020-102
RESOLUTION NO. 2020-102
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
AUTHORIZING AND APPROVING A PUBLIC FACILITIES FEE CREDIT
AGREEMENT WITH UNIVERSITY DISTRICT LLC FOR THE KEISER AVENUE
UNDERGROUND UTILTY CONSTRUCTION
WHEREAS, on November 22, 2011, the City Council of the City of Rohnert Park
(“City”) adopted Resolution No 2011-112 updating its Public Facilities Fees and finding this
action Categorically Exempt under the California Environmental Quality Act; and
WHEREAS, on April 22, 2014, the City Council of the City of Rohnert Park adopted
Ordinance Number 878 approving a Development Agreement (“Development Agreement”)
between the City of Rohnert Park and Vast Oak Properties L.P. and the University District LLC;
and
WHEREAS, On September 1, 2020, University District LLC and Vast Oak Properties
L.P. entered into an Assignment and Assumption of the Development Agreement and Consent of
the City, which was recorded on September 22, 2020 in the Official Records of the County of
Sonoma as Document Number 202008486 that assigned all rights and obligations under the
Development Agreement to University District LLC (“Developer”); and
WHEREAS, the Development Agreement requires the Developer to undertake the Keiser
Avenue Reconstruction Project, but also allows the City to undertake all or a portion of this
project, provided that the Developer funds the City’s activities; and
WHEREAS, Developer and City have agreed that it is desirable for the City to
undertake the design and construction of a portion of the Keiser Avenue Reconstruction Project
and the Developer has contributed $1,414,800.00 to cover a portion of the City’s construction
costs; and
WHEREAS, the Keiser Avenue Reconstruction Project is included in the City’s Public
Facilities Finance Plan and costs associated with this project are eligible for fee credits in
accordance with the Development Agreement; and
WHEREAS, the City and Developer desire to enter into a Public Facilities Fee Credit
Agreement to recognize the prepayment of Public Facilities Fees, the Public Facilities Fee Credit s
due to Developer and the applicability and transferability of these Public Facilities Fee Credits to
development of the project as described in the Development Agreement.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Rohnert
Park finds that this action is categorically exempt from environmental review pursuant to
California Environmental Quality Act guidelines section 15061(b)(3) because the payment of
Public Facilities Fees provides a means of mitigating environmental impacts which have been
identified in other environmental analyses including the General Plan EIR.
BE IT FUTHER RESOLVED that the City Council does hereby authorize and approve
the Public Facilities Fee Credit Agreement with University District LLC attached as Exhibit A.
BE IT FURTHER RESOLVED that the City Manager is hereby authorized and directed
to execute the Public Facilities Fee Credit Agreement, in substantially similar form to that
agreement attached hereto and incorporated by this reference as Exhibit A, subject to minor
modification by the City Manager or City Attorney.
BE IT FURTHER RESOLVED that the Finance Director is hereby authorized and
directed to take all actions necessary to effectuate the intent of the Agreement.
DULY AND REGULARLY ADOPTED this 24'h day of November, 2020.
CITY OF ROHNERT PARK
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Josep T. Callinan, Mayor
ATTEST
Sylvia Lopez Cue as, City Clerk \�
Attachments: Exhibit A
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Resolution 2020-102
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Rohnert Park
130 Avram Avenue
Rohnert Park, California 94928-2486
Attention: City Clerk
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(Space Above This Line for Recorder's Use Only)
Exempt from recording fee per Gov. Code § 27383.
PUBLIC FACILITIES FEE CREDIT AGREEMENT
BY AND BETWEEN THE CITY OF ROHNERT PARK
AND UNIVERSITY DISTRICT LLC FOR THE KEISER AVENUE UNDERGROUND
UTILITY CONSTRUCTION
THIS PUBLIC FACILITIES FEE CREDIT AGREEMENT (the "Agreement") is made and
entered into on this ______ day of ______________ 20202 (the "Effective Date") by and between
UNIVERSITY DISTRICT LLC, a Delaware limited liability corporation (“Developer ”), and the CITY
OF ROHNERT PARK, a California municipal corporation ("City"), with reference to the following
facts and intentions.
R E C I T A L S
A. On April 22, 2014, the City Council of the City of Rohnert Park adopted its Ordinance
No. 878 approving an Amended and Restated Development Agreement with the Developer recorded in
the Official Records of Sonoma County as Document No. 2014051817 (the “Development
Agreement”).
B. On September 1, 2020, University District LLC and Vast Oak Properties L.P. entered
into an Assignment and Assumption of the Development Agreement and Consent of the City, which was
recorded on September 22, 2020 in the Official Records of the County of Sonoma as Document
Number 202008486 (“DA Assignment ”).
C. The Development Agreement requires that the Developer construct certain
improvements, including improvements to Keiser Avenue.
D. The Development Agreement also gives the City the option to construct certain offsite
improvements, including Keiser Avenue, provided that the Developer fund these activities.
E. Improvements to Keiser Avenue are included in the City’s Public Facilities Finance
Plan (“PFFP”). The Development Agreement provides that Developer is entitled to receive credits
against any Public Facilities Financing Plan fees, for any Keiser Avenue costs that it funds.
F. The Developer and City agree that, in order to advance portions of the University
District Development, including the affordable housing complex, it is desirable for the City construct
the portion of Keiser between Snyder Lane and Kerry Road, with funding from the Developer, a portion
of which has been provided.
G. City and Developer desire to enter into an agreement regarding Developer’s
prepayment of PFFP fees associated with the design and construction of Keiser Avenue.
A G R E E M E N T
NOW, THEREFORE, in consideration of the faithful performance of the terms and conditions
set forth in this Agreement, the parties hereto agree as follows:
1. Incorporation of Recitals. The foregoing Recitals are true and correct and are hereby
incorporated into and form a material part of this Agreement.
2. Property Subject to Agreement . The property which is the subject of this Agreement
(“Property”) is located in the City of Rohnert Park, Sonoma County, California, and is described in
Exhibit 1, attached hereto and incorporated by this reference. The Property is only a portion of the real
property subject to the Development Agreement. The City has approved the development of residential
subdivision on the Property (the “Project”).
3. Public Facilities Fee Credit.
3.1. Source and Method of Credit. Subject to the limitations set forth in this
Section 3, Developer, or any subsequent developer of the Property, shall receive PFFP Credits for
payments received towards the design and construction of the Keiser Avenue in an amount not to
exceed One Million Four Hundred Fourteen Thousand Eight Hundred Dollars and No Cents
($1,414,800.00) based on amounts previously deposited with the City.
3.2 Implementation of Public Facilities Fee Credit. The PFFP Credits shall
be applied against the Public Facilities Fees that would otherwise be applicable to the Project,
as the result of construction on the Property. Developer shall be entitled to receive PFFP
Credits at the time of issuance of building permits for construction on the Property. The City
shall keep an accounting of the balance of PFFP Credit s based upon the total prepayment
received from Developer and the credits applied to building permits on the Property. The PFFP
Credits shall run with the land and may be credited only for development of the Project on the
Property, provided that Developer may allocate the use of the PFFP Credits among components
of the Project. Developer may authorize the assignment of all or portions of the PFFP Credit
balance in writing, with the consent of the City, provided that PFFP Credits may not be
assigned outside the boundaries of the Property and the PFFP Credits are fully utilized on the
development of the Property. Developer acknowledges and agrees that payment of the PFFP
Credits is limited to the development of the Property and not the entire real property described
in the Development Agreement.
3.3 Expiration of Public Facilities Fee Credit. The Public Facilities Fee
Credit reflects prepayment by the Developer of Public Facilities Fees that would otherwise be
due at the time building permits are issued for structures on the Property . City’s obligation to
extend credits shall expire upon the available balance reaching $0.00.
4. Community Facilities District; Intent to Reimburse. City and Developer
acknowledge that the California Statewide Communities Development Authority has formed a
Community Facilities District that includes the Property. Payment of Public Facilities Fees is
potentially eligible for funding through a Community Facilities District and Developer's costs
may be reimbursed with the proceeds of Community Facilities District bonds at some future
date.
5. Breach of Agreement; Remedies.
5.1. Notice of Breach and Default. The occurrence of any of the following
constitutes a breach and default of this Agreement:
(1) Developer refuses or fails to complete payment in accordance with the payment
schedule.
(2) Developer assigns the Agreement without the prior written consent of City.
(3) Developer assigns all or a portion of the PFFP Credit balance without the prior
written consent of the City.
(4) Developer is adjudged bankrupt or makes a general assignment for the benefit
of creditors, or a receiver is appointed in the event of Developer's insolvency.
(5) Developer or Developer's contractors, subcontractors, agents , employees or
assignees, fail to comply with any terms or conditions of this Agreement.
The City may serve written notice of breach and default upon Developer .
5.2. Remedies. Should the Developer breach this Agreement, City’s remedy shall
be to hold all available credits for prepaid funds received under this Agreement for the benefit of the
Property. No failure on the part of City to exercise any right or remedy hereunder shall operate as a
waiver of any other right or remedy that City may have hereunder.
6. Miscellaneous.
6.1 Compliance with Laws. Developer shall fully comply with all federal, state
and local laws, ordinances and regulations in the performance of this Agreement. Developer shall, at
its own cost and expense, obtain all necessary permits and licenses for the Work, give all necessary
notices, pay all fees and taxes required by law and make any and all deposits legally required by those
public utilities that will serve the development on the Property. Copies and/or proof of payment of
said permits, licenses, notices, fee and tax payments and depos its shall be furnished to the City
Engineer upon request.
6.2. Notices. Formal written notices, demands, correspondence and
communications between City and Developer shall be sufficiently given if: (a) personally delivered;
or (b) dispatched by next day delivery by a reputable carrier such as Federal Express to the offices of
City and Developer indicated below, provided that a receipt for delivery is provided; or (c) if
dispatched by first class mail, postage prepaid, to the offices of City and Developer indicated below.
Such written notices, demands, correspondence and communications may be sent in the same manner
to such persons and addresses as either party may from time-to-time designate by next day delivery or
by mail as provided in this section.
City: City of Rohnert Park
130 Avram Avenue
Rohnert Park, CA 94928
Attn: City Manager
with a copy to: City of Rohnert Park
130 Avram Avenue
Rohnert Park, CA 94928
Attn: City Attorney
Developer: University District LLC
500 La Gonda Way, Ste. 100
Danville, CA 94526
Attn: Mr. Kevin Pohlson
Notices delivered by deposit in the United States mail as provided above shall be deemed to have
been served two (2) business days after the date of deposit if addressed to an address within the State
of California, and three (3) business days if addressed to an address within the United States but
outside the State of California.
6.3 Attorney Fees. Should any legal action or arbitration be brought by either party
because of breach of this Agreement or to enforce any provision of this Agreement, the prevailing
party shall be entitled to all costs of suit; reasonable attorney fees, arbitration costs and such other
costs as may be determined by the court or arbitrator.
6.4. Entire Agreement. The terms and conditions of this Agreement constitute the
entire agreement between City and Developer with respect to the matters addressed in this
Agreement. This Agreement may not be altered, amended or modified without the written consent of
both parties hereto.
6.5. Runs with the Land; Recordation. This Agreement pertains to and shall run
with the Property. Upon execution, this Agreement shall be recorded in the Official Records of
Sonoma County.
6.6. Transfers; Assignments. Developer may assign its obligations under this
Agreement to successor owner(s) of the Property with the prior written approval of the City. In
connection with any such assignment, Developer and its assignee shall execute and deliver to City a
written assignment and assumption agreement in a form acceptable to the City Attorney.
6.7. Time is of the Essence. Time is of the essence of this Agreement and of each
and every term and condition hereof.
6.8. Severability. If any provision of this Agreement is held, to any extent, invalid,
the remainder of this Agreement shall not be affected, except as necessarily required by the invalid
provision, and shall remain in full force and effect.
6.9. Waiver or Modification. Any waiver or modification of the provisions of
this Agreement must be in writing and signed by the authorized representative(s) of each Party.
6.10. Relationship of the Parties. Neither Developer nor Developer's contractors,
subcontractors, agents, officers, or employees are agents, partners, joint ventures or employees of
City and the Developer's relationship to the City, if any, arising herefrom is strictly that of an
independent contractor. Developer’s contractors and subcontractors are exclusively and solely under
the control and dominion of Developer. Further, there are no intended third party beneficiaries of any
right or obligation assumed by the Parties.
6.11. Binding Upon Heirs, Successors and Assigns. The terms, covenants and
conditions of this Agreement shall be binding upon all heirs, successors and assigns of the parties
hereto; provided, however, that this Agreement shall not be binding upon a purchaser or transferee of
any portion of the Property unless this Agreement has been assigned pursuant to Section 6.6, in which
event this Agreement shall remain binding upon Developer.
6.12. Governing Law; Venue. This Agreement shall be construed and enforced in
accordance with the laws of the State of California, without reference to choice of law provisions.
Any legal actions under this Agreement shall be brought only in the Superior Court of the County of
Sonoma, State of California.
6.13. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed to be an original.
6.14. Interpretation. This Agreement shall be construed according to its fair
meaning, and not strictly for or against any party. No presumptions or rules of interpretation
based upon the identity of the party preparing or drafting the Agreement, or any part thereof,
shall apply to the interpretation of this Agreement.
6.15. Headings. Section headings in this Agreement are for convenience only and are
not intended to be used in interpreting or construing the terms, covenants or conditions contained in
this Agreement.
6.16. Authority. Each party executing this Agreement on behalf of a party represents
and warrants that such person is duly and validly authorized to do so on behalf of the entity it purports
to bind and if such party is a partnership, corporation or trustee, that such partnership, corporation or
trustee has full right and authority to enter into this Agreement and perform all of its obligations
hereunder.
IN WITNESS WHEREOF, City and Developer have executed this Agreement as of the Effective
Date.
(signatures on following page)
"CITY"
CITY OF ROHNERT PARK, a California
municipal corporation
Dated: By:
City Manager
Per Resolution No. 2020-____ adopted by the Rohnert Park
City Council at its meeting of November 24, 2020.
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
Dated:
"DEVELOPER"
University District LLC,
________________________________________
By:
Kevin Pohlson
Vice President
By:_________________________________
__________________
Chief Financial Officer
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA )
) ss.
COUNTY OF SONOMA )
On __________________ before me, _______________________________________,
(here insert name and title of the officer)
personally appeared _______________________________, who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoi ng
paragraph is true and correct.
WITNESS my hand and official seal.
Signature ________________________________
(Seal)
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA )
) ss.
COUNTY OF CONTRA COSTA )
On __________________ before me, _______________________________________,
(here insert name and title of the officer)
personally appeared _______________________________, who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature ________________________________
(Seal)
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA )
) ss.
COUNTY OF SONOMA )
On __________________ before me, _______________________________________,
(here insert name and title of the officer)
personally appeared _______________________________, who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s ) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature ________________________________
(Seal)
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P:\19539\Plats-Legals\Legals\3A Lots and Streets Legal Description (no sign)_2020-04-06.doc
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
ALL THAT CERTAIN REAL PROPERTY LOCATED IN THE CITY OF ROHNERT PARK, COUNTY OF
SONOMA, STATE OF CALIFORNIA, BEING LOTS 1 THROUGH 86 ALL AS SHOWN ON THAT
CERTAIN MAP ENTITLED “VAST OAK NORTH PHASE 3-A” RECORDED IN BOOK 814 OF MAPS AT
PAGES 42 THROUGH 48, SONOMA COUNTY RECORDS, DOCUMENT NO. 2020050286.
END OF DESCRIPTION